JUDGMENT S.K. Dhaon, J. - This is a tenant's petition. It stems from proceedings under Section 21 (1) (a) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, W.P. Act No. XIII of 1972), (hereinafter referred to as the Act), initiated by the landlady for the release of the accommodation in the tenancy of the petitioner. In appeal, the Special Judge, Economic Offenses, Allahabad (hereinafter referred to as the Appellate Authority) after reversing the decision of the Prescribed Authority accepted the landlady's application. 2. The landlady on July 25,1977 purchased a building No. 155 Newada (Ashok Nagar) Allahabad (hereinafter referred to as the accommodation in dispute) for a sum of Rs. 30,000/- On that date the petitioner was in occupation of the accommodation in dispute as a tenant. On or before that date the landlady was living in a rented accommodation situate at 26 Muir Road, Allahabad (hereinafter referred to as the Muir Road accommodation) along with members of her family and with the family of the brother of her husband (brother-in-law). The Muir Road accommodation was a portion of a bung- low. It was originally allotted to the father-in-law of the landlady who till his death, continued to reside in it along with his two sons, one of them being the husband of the landlady, and their respective families. Upon the demise of the father-in-law, the tenancy of Muir Road accommodation devolved upon his two sons and they commenced residing in it jointly along with the members of their family. As required by the first proviso to Section 21 (1) of the Act the landlady sent a notice to the petitioner which was duly served upon him on January 18, 1979. 3. The petitioner paid a monthly rent of Rs. 175/- besides water tax. He is enticed in Messrs Triveni Structural. Allahabad on an emolument of Rs. 2500/- per month which includes Rs. 400/- as house allowance. The family of the petitioner consists of himself, his wife two sons and one daughter. One of his sons is suitably employed. The husband of the landlady is getting a salary of Rs. 680/- per month and is employed in the ministerial cadre in the office of the Divisional Commissioner at Allahabad, the Family of the landlady consists of herself, her husband and four sons, aged 22, 19 and 17 and 13 years respectively. One of his sons is suitably employed. The husband of the landlady is getting a salary of Rs. 680/- per month and is employed in the ministerial cadre in the office of the Divisional Commissioner at Allahabad, the Family of the landlady consists of herself, her husband and four sons, aged 22, 19 and 17 and 13 years respectively. The family of the brother-in-law of the landlady consists of himself, his wire and a minor daughter. All the four sons of the landlady are students. The first is studying in B.A. final, the second in B.A. part I, the third in High School and the fourth in ICSC. 4. The Prescribed Authority appointed an Advocate as a Commissioner to inspect the accommodation in dispute and the Muir Road accommodation. The Commissioner submitted a report with respect to both the accommodations. Regarding the Muir Road accommodation the Commissioner said : "Open space in front side measuring about 25' x 40' appurtenant land of the said portion, one covered veranda measuring about 12' x 8', one side room measuring about 12' x 10', one room measuring about 12' x 10', one room measuring about 14' x 12', one room size veranda cum-kitchen in back, one store room measuring about 5' x 8', bathroom, one kitchen in the open space in the back without roof and open space in the back measuring about 25' x 30'. There is one service latrine about 25 yards away towards the west from the open space in the back. Thus there are three rooms, two covered verandas, one in the front side and one in the back side, kitchen, bathroom, store room and open space in front as well as open space in the back side and latrine. The remaining portion of premises No. 26-A Muir Road is in the use and occupation of the landlady". By "landlady" the Commissioner meant the owner of the premises. 5. The remaining portion of premises No. 26-A Muir Road is in the use and occupation of the landlady". By "landlady" the Commissioner meant the owner of the premises. 5. About the accommodation in dispute the Commissioner reported :" open space measuring about 20' x 12' and 12' x 25' in which there is a tin shed which is being used by the O.P., car parking, one covered veranda in front side measuring about 8' x 10', one side room measuring about 12' x 10', another, room measuring about 12' x 10', third room measuring about 10' x 10' and fourth room measuring 12' x 10', one kitchen, latrine and bathroom, and one L type courtyard measuring about 8' x 12' and 30' x 12' and one passage in the eastern side measuring about 22' x 12' which connects with the tin shed in front side through a door. Thus there are four rooms, two covered veranda, one passage and open space in the front, kitchen, latrine and bathroom which is in the use and occupation of the O.P." 6. The Prescribed Authority held that the need of the landlady for the accommodation in dispute was neither genuine nor bona fide. It emphasised that the Advocate Commissioner did not mention in his report that the family of the brother-in-law of the landlady also resided in the Muir Road accommodation along with the landlady. It also laid emphasis on the fact that the landlady did not prefer any objection against the report of the Commissioner. 7. The Appellate Authority reappraised the evidence on record which consisted of the affidavits exchanged between the parties, the report of the Advocate Commissioner and sonic papers filed by the landlady regarding the studies of her sons. In appeal, the Appellate Authority permitted the landlady to file the voters' list regarding the Muir Read accommodation, telephone bills, envelopes,pes and some her papers indicating that Smt. Sita Singh, the wife of the brother-in-law of the landlady, resided in the Muir Road accommodation. The Appellate Authority compared in detail the two accommodations. In appeal, the Appellate Authority permitted the landlady to file the voters' list regarding the Muir Read accommodation, telephone bills, envelopes,pes and some her papers indicating that Smt. Sita Singh, the wife of the brother-in-law of the landlady, resided in the Muir Road accommodation. The Appellate Authority compared in detail the two accommodations. It took i into account the number of the members of the family of the landlady and the petitioner, the fact that the brother-in-law of the landlady resided in the Muir Road accommodation, the fact that the sons of the landlady had grown up, were students of either College or school and the eldest son of the landlady had attained a manageable age. It also considered that there was nothing unnatural in the landlady desiring to have separate rooms for the study of her sons and a separate guest room or drawing room. On the totality of. the facts and circumstances it come to the conclusion that the need of the landlady is bona fide, genuine and pressing. While comparing the hardships of the landlady and the petitioner it had come to the conclusion that the landlady will suffer great hardship in the event her application was rejected. The Appellate Authority summed up thus : "Considering the totality of the circumstances i.e. number of family members of the landlady, the fact that she has spent a good amount in purchasing the accommodation in dispute, the fact she is sharing the present tenanted accommodation along with her brother-in-law's family and the fact that her comparative hardship would be greater than that of the tenant, I am of the view that the need of the landlady is bona fide as well as genuine." 8. Apparently, the finding of the Appellate Authority that the need of the landlady is bona fide and genuine is a finding of fact and, therefore, the learned counsel for the petitioner has rightly not tried to assail that finding. Apparently, the finding of the Appellate Authority that the need of the landlady is bona fide and genuine is a finding of fact and, therefore, the learned counsel for the petitioner has rightly not tried to assail that finding. However, he contends- (1) The Appellate Authority has not recorded any finding that the brother-in-law of the landlady and the members of his family were residing with her in the Muir Road accommodation ; (2) the statutory notice as required by the provisions of the first proviso to Section 21 (1) of the Act had been waived by the landlady ; (3) Sri B.P. Singh, the Appellate Authority had no jurisdiction to decide the appeal preferred by the landlady as lie ceased to exercise the power of Additional District Judge on account of his appointment as Special Judge under the Essential Commodities Act (Special Provisions), Act, 1981 ; (4) the landlady cannot be considered to be the head of her family for the purposes of the Act particularly when her husband is alive, (5) the Appellate Authority failed to take into consideration Rule 16 (I) (a) of the Rules fumed under the Act (hereinafter referred to as the Rules) and (6) of the Appellate Authority did not advert at all to the contents of Rule 16 (1) (d) of the Rules. 9. The Contents of the application made by the landlady and the contents of the affidavit filed on her behalf clearly show that it is her specific case that the Muir Road accommodation is being shared by the members of her family and by the members of the family of her brother-in-law. The Appellate Authority has recorded a clear finding that the landlady's brother- in- law and the members of his family and the landlady along with her family are residing together in the Muir Road accommodation. The Advocate Commissioner was required by the Prescribed Authority to give his report regarding the description of the two accommodations. He could not possibly give any report on the question whether the brother-in-law of the landlady was residing in the Muir Road accommodation along with her. There is, therefore, no force in the first contention. 10. The Advocate Commissioner was required by the Prescribed Authority to give his report regarding the description of the two accommodations. He could not possibly give any report on the question whether the brother-in-law of the landlady was residing in the Muir Road accommodation along with her. There is, therefore, no force in the first contention. 10. In paragraph 6 of the affidavit filed by the husband of the landlady before the Prescribed Authority it is averred that the landlady served the petitioner with a notice as required by the provisions of Section 21 of the Act and the same was served upon the petitioner on 18th January 1979. A counter affidavit has been filed by the petitioner in reply to this affidavit. In paragraph 7 of this affidavit it is stated that notice is contrary to law and it stands vitiated. In paragraph 33 of the affidavit it is stated that the landlady by means of a notice issued through Sri R.P. Tripathi, Advocate, informed the petitioner that she will take proceedings against him (the petitioner) after expiry of six months but later on, the matter was settled and the applicant withdrew the notice dated 17.1.1979. The notice stands Waived and as such there is no notice as contemplated under Section 21 of U.P. Act 13 of 1972. The application is liable to be rejected on this ground also. 11. In the rejoinder affidavit filed by the husband of the landlady the contents of paragraph 6 of the counter affidavit filed by the petitioner are not admitted. In paragraph 33 of the said affidavit the contents of paragraph 33 of tire counter affidavit of the petitioner are met : "That paragraph 33 of the counter affidavit as it stands is not admitted". Learned counsel for the petitioner has vehemently contended that the contents of paragraph 33 of the counter affidavit have not been categorically denied by the husband of the landlady in the rejoinder affidavit. It is true that the contents of the said affidavit are not happily worded but it should not be forgotten that in paragraph 33 of the counter affidavit two distinct facts are mentioned. First, it is stated that the requisite notice was received by the petitioner. Secondly, it is stated that this notice was waived by the landlady. It is true that the contents of the said affidavit are not happily worded but it should not be forgotten that in paragraph 33 of the counter affidavit two distinct facts are mentioned. First, it is stated that the requisite notice was received by the petitioner. Secondly, it is stated that this notice was waived by the landlady. Probably in the rejoined affidavit a reply is being given to the second part of the said affidavit of the petitioner. Be that as it may, there was a factual controversy between the parties regarding the notice. The onus lay heavily upon the petitioner to prove the waiver of the notice by the landlady. The Appellate Authority had to record his finding on the material before him. After carefully reading the order of the Appellate Authority I am satisfied that it applied its mind to the question of the requirement of a notice and it also recorded a finding that a valid notice had been given by the landlady to the petitioner. 12. In support of the third contention learned counsel for the petitioner has relied heavily upon paragraph 5 of the notification dated October 12, 1982 issued by the Registrar of this Court. By that notification this court purported to appoint Sri B P. Singh. the first Additional District and Sessions Judge, Allahabad and some other officers as Special Judges "in addition to their duties". in the special courts constituted under sub section (1) of Section 12 (a) of the Essential Commodities (Special Provisions) Act, 1981. In paragraph 5 of the said notification it is mentioned that "the courts at present held by the officers mentioned in column 2 of the chart will remain vacant with effect from the date the Presiding Officers of these courts take charge over the Special courts". At serial No. 3 the name of Sri B.P. Singh, First Additional District and Sessions Judge, Allahabad appears. Some argument is sought to be built on the basis of the contents of the afore quoted paragraph 5 if the said notification and it is argued that the court of Sri B.P. Singh, First Additional District and Sessions Judge. Allahabad became vacant and, therefore, Sri Singh while disposing of the appeal as an Appellate Authority was not acting as an Additional District Judge. Allahabad became vacant and, therefore, Sri Singh while disposing of the appeal as an Appellate Authority was not acting as an Additional District Judge. This argument is met by a circular dated November 4, 1982 issued by the Registrar of this Court. In this circular letter it is clarified that despite the notification dated October 12, 1982 the officers appointed as Special Judges will continue to perform the duties and exercise the powers of Additional District and Sessions Judges in addition to the duties of Special Judges under the Essential Commodities Act. The notification and the circular letter have been considered by this Court in Ram Dulare v. State of U.P. 1983 A.L.J. 571. This court has taken the view that, despite the notification, the officers appointed as Special Judges will continue to perform the duties and exercise the powers of Additional District Judges, and Additional Sessions Judges. Therefore, Sri B.P. Singh did not cease to be an Additional District and Sessions Judge and he had full jurisdiction to decide the appeal. 13. The fourth contention has no merits. A married lady is not debarred from becoming a landlord. The definition of "family" as contained in Section 3 (q) of the Act is clear. It says : that a family" in relation to a landlord or tenant of a building means his or her (i) spouse, (ii) male lineal descendants. "Here the husband of the landlady and her four sons will constitute her family for the purposes of the Act. 14. The fifth contention is based on Rule 16(1)(a) of the Rules. The contents of the rule will be attracted in a situation where the landlord already has adequate and reasonable suitable accommodation and he or she claims and additional accommodation. In the instant case, the finding of fact recorded by the Appellate Authority is that the Muir Road accommodation is not adequate at all so far as the landlady and the members of her family are concerned. Moreover, a close reading of the order of the Appellate Authority will show that it is not unmindful of the contents of the Rule under reference. It has approached the problem keeping the provisions of the said sub rule in mind. It has considered the number of the members of the family of the landlady, their ages and means and the social status of her husband. It has approached the problem keeping the provisions of the said sub rule in mind. It has considered the number of the members of the family of the landlady, their ages and means and the social status of her husband. When it referred to the means and social status of the husband, it clearly meant to fours its attention to the means and social status of the landlady. The mere fact that there is no specific mention of the sub rule under consideration will not vitiate the order. 15. The last contention is found on the contents of Rule 16 (1) (a) of the Rules. This rule reads : ' Where the tenant's needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the prescribed authority shall release only the latter part of the building". The contention is that a mandatory duty is cast upon the authorities under the Act to consider the contents of the afore quoted rule while deciding an application under Section 21 (1) (a) of the Act. It is contended that having regard to the facts of the instant case, the non-consideration of the said rule by the Appellate Authority has .got only rendered his order without jurisdiction but has also resulted in a miscarriage of justice. It is conceded by the learned counsel for the petitioner that no plea, whatever, as envisaged in the said sub-rule has been taken by the petitioner before the authorities below. However, the petitioner has in sup- port a direct authority of the Supreme Court in the case of Smt. Raj Rani Mehrotra v. Second Additional District Judge 1981 R.R.C. 311. The Supreme Court has observed ................ It is clear under the relevant rule that is the duty of the Court to take into account that aspect while considering the requirements of the landlord and, therefore, the issue will have to be remanded to the High Court." The Supreme Court remanded the matter to this Court by observing that if necessary, the parties may have to be allowed to lead fresh evidence, if this court is unable to decide it on the material on record. It also observed that if evidence becomes necessary this Court may in its turn remand the matter back to the trial court. 16. It also observed that if evidence becomes necessary this Court may in its turn remand the matter back to the trial court. 16. Learned counsel for the landlady contended that there is enough material on record to enable this court to decide the matter finally in the light of Rule 16(1)(a). He made an offer on behalf of his clients that she would be con. tented if two out of the four rooms of the accommodation in dispute are released in her favor. He also stated that none of the existing amenities of the petitioner will be disturbed in any manner. He further stated that the landlady will construct a separate toilet, bathroom, etc. for herself on the open space and the petitioner shall continue to occupy the existing toilet, bathroom and kitchen, etc. exclusively. 17. Before dictating the judgment I thought it proper that the offer made on behalf of the landlady should be translated in writing in the form of an affidavit. Accordingly the writ petition was posted for re-hearing under my orders. Sri Surendra Singh the husband of the landlady has filed an affidavit. In this affidavit reliance has been placed upon the report of the Advocate Commissioner regarding the contents of the accommodation in dispute and also the measurements of the same. For facilitating a division of the accommodation on the spot a site plan on scale has been filed as Annexure 1 to this affidavit. In this plan the entire accommodation in dispute has been divided 2. 1981 R.R.C. 311. in two portions independent of each other. One portion has been left plain and the other portion has been marked with pencil lines. In the lined portion provision has been made for the construction of toilet, bathroom and gate. It is stated that the landlady will make the necessary construction at her own expense. Paragraphs 7 to 9 of this affidavit may be quoted : ""7. That though the requirement of the landlord is much more, for the time being she,will shift only a portion of her family that is two elder sons aged 24 and 22 years respectively to the disputed accommodation. Both the sons are to be married in near future. The petitioner will remain in her present accommodation for the time being. 8. That the lined and plain portion are almost equal in construction. Both the sons are to be married in near future. The petitioner will remain in her present accommodation for the time being. 8. That the lined and plain portion are almost equal in construction. The landlord offers either of the portions to tenant petitioner and is prepared to occupy the other remaining portion. The petitioner may choose either of the suites. 9. That this Hon'ble Court may confined the release portion of the building to any of suites according to the desire of the petitioner." A counter affidavit has been filed on behalf of the petitioner tenant by his son. Apart from mentioning the various contentions advanced at the time of the hearing the petitioner has objected to the acceptance of the affidavit by this Court after the close of the arguments. It is also emphasised in this affidavit that, in the absence of a finding regarding the extent of the exact accommodation, in possession of the landlady in the Muir Road accommodation, no adjudication can take place so far as the requirement of Rule 16 (1) (d) is concerned. Paragraphs 11 to 14 of the counter affidavit may be quoted : ""11. That the contents of paragraph 6 (wrongly numbered as 5) of the affidavit are denied. The plan submitted by the respondent No. 2 cannot be taken on record as the same was to be ascertained by examining witnesses as per the rules of the evidence to prove it; apart from this the court has to find out other necessary facts in this respect as mentioned in para No. 9 above in reply to the contents of paragraph 4 (wrongly numbered as para 3) of the affidavit. 12. That the contents of paragraph 7 (wrongly numbered as 6) of the affidavit are denied, correct position in this regard has been stated in para above in reply to the contents of para 5 (wrongly numbered as para 4) of the affidavit. 13. That the contents of paragraph 8 and 9 (wrongly) numbered as paras 7 and 8 of the (affidavit) arc denied. It is wrong to say that the need of the respondent No. 2 is more than the accommodation she has already got with her. 13. That the contents of paragraph 8 and 9 (wrongly) numbered as paras 7 and 8 of the (affidavit) arc denied. It is wrong to say that the need of the respondent No. 2 is more than the accommodation she has already got with her. It is further stated that a finding has to be recorded on the basis of evidence by court as to the extent of requirement of the respondent No. 2 in the light of accommodation at present in her exclusive possession. Since these findings are not there on record and since these findings cannot he recorded by this Hon'ble Court in absence of the necessary material on record it will not be possible to ascertain the requirement of additional accommodation by the respondent No. 2, the offer made by the respondent No. 2 in the circumstances of the case is wholly misconceived and not acceptable and the same cannot be legally entertained at this stage. 14. That the contents of paragraph 10 (wrongly numbered as paragraph 9) of the affidavit are wrong and the same are denied. It is stated that the offer of the respondent No. 2 is not admitted inasmuch as the same is not bona fide. It is further stated that there being nothing on record of the case to comply with the provision of the Rule will not be proper to decide that aspect of case in exercise of the writ jurisdiction. The respondent is advised to state that although this Hon'ble Court has unlimited powers to do so, what- ever it thinks proper, but in the circumstances of this case, specially in absence of the necessary materials and findings which are sin qua non for consideration, while complying with the requirements of Rule 16 (1) (d) of the Rules, it will be the proper exercise of writ jurisdiction, under Article 226 of the Constitution, to send back the case to either of the courts below to record those findings in accordance with law. In the circumstances the application should be dismissed". 18. The contents of the Muir Road accommodation have already been extracted above from the report of the Advocate Commissioner. According to the report of the Advocate Commissioner the contents of the accommodation in dispute and the Muir Road accommodation are more or less the same. In the circumstances the application should be dismissed". 18. The contents of the Muir Road accommodation have already been extracted above from the report of the Advocate Commissioner. According to the report of the Advocate Commissioner the contents of the accommodation in dispute and the Muir Road accommodation are more or less the same. It can be reasonably inferred that in the Muir Road accommodation the family of the landlady and her brother-in-law are occupying one room each exclusively and the remaining accommodation is being used by the two families jointly (there being only three rooms). 19. The petitioner-tenant has refrained from giving his choice to either of the two portions offered by the landlady. I am satisfied that the offer made by the landlady to allow the petitioner to continue to occupy a portion of the accommodation is genuine and bona fide. Obviously, she has done so to avoid a protected litigation and to meet her immediate and pressing requirement. Having regard to the total contents of the accommodation in dispute, the petitioner cannot have a better and more advantageous offer from the landlady. The petitioner may, if he so likes, retain the portion which has been marked with pencil lines in the Annexure referred to above. This portion consists of two rooms of area 11x14' each and verandah 9'x 12'. On this verandah one of the rooms opens. To the south of the rooms and verandah there is an open space of 15'. In it a separate toilet and bathroom is indicated. A separate gate has been provided. However, I find that no provision has been made for a kitchen. The landlady shall construct a kitchen for the petitioner on the open space. It is on record that in the compound the petitioner is using a tin shed as a garage. The petitioner shall not be deprived of the use of the existing garage. However, if the landlady feels inconvenience on account of the location of the garage, she may close that garage after constructing another garage, keeping in view the convenience of the petitioner-tenant. 20. Rule 16(1)(d)'has been framed with the object of adjusting the equities between the landlord and the tenant. However, if the landlady feels inconvenience on account of the location of the garage, she may close that garage after constructing another garage, keeping in view the convenience of the petitioner-tenant. 20. Rule 16(1)(d)'has been framed with the object of adjusting the equities between the landlord and the tenant. In the spirit to give and take is inherent It is expected that both the parties will adopt a compromising attitude so that the tenant may not be thrown out of the existing accommodation in his or her tenancy. Unfortunately, the petitioner has not acted in the spirit in which sub-rule has been framed. It is evident that the petitioner has filed a most unhelpful reply to the affidavit filed on behalf of the landlady in connection with the offer of a portion of the accommodation in dispute, in the backdrop of Rule 16(1)(d). 21. The petitioner is allowed two months' time to vacate the accommodation other than the one which has been earmarked by me for him. He shall hand over peaceful possession of the same to the landlady. If the petitioner fails to do so within this period, the entire accommodation in dispute shall stand released in favor of the landlady. She will he at liberty to execute the order passed by the Appellate Authority in accordance with law. 22. The writ petition is decided accordingly. The parties are directed to bear their own costs.