JUDGMENT A. Banerji, J. - This writ petition has been filed by a tenant challenging the orders of the Prescribed Authority and the Appellate Authority dated 20.4.1978 and 14.10.1981 (Annexures 3 and 4) respectively. Petitioner's plea, in short, is that the application under section 21(1) (a) of the U P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act, was not maintainable and the orders passed in favour of the landlord were bad in law and liable to be set aside. 2. This case was listed on the 13th of May, 1985 when only learned counsel for the petitioner Mr. R.H. Zaidi appeared and none appeared for the respondents on that day. Subsequently, Mr. S.A. Majid and Mr. M.C. Gupta entered appearance on behalf of the respondents and they have been heard on 4th of November, 1985. 3. One of the respondents Smt. Tameezan Begum is reported to have died on the 5th February, 1985 and an application was made to make a note that her heirs are already on record as respondents 3, 5 and 6. The application under Order 22 Rule 2 of the Code of Civil Procedure was allowed and a note was made that the proposed heirs are already on record. 4. A few relevant facts, One Dr. Mohammad Ilyas was the landlord of house No. 88/150 Chaman Ganj, Kanpur. The petitioner Ashfaq Ali Khan was a tenant thereof. Dr. Mohd. Ilyas moved an application under Section 21(1) (a) of the Act and prayed for two reliefs viz., that the tenant be evicted from the accommodation in his tenancy and possession and secondly, that the same accommodation be released in favour of the petitioner, Dr. Mohd. Ilyas. Before the proceedings in the Court of the Prescribed Authority, Kanpur had come to an end, Dr. Mohd. Ilyas died. His widow, Smt. Tameezan Begum, his son Akbar Ilyas Land two daughters Smt. Zubeda Khatoon and Smt. Jamila Khatoon were substituted as landlords. In paragraphs 10 and 12 of the application under Section 21 of the Act, the landlord alleged that the tenant was alone and had been employed in M.A.H. Degree College, Ghazipur and bad been serving there for the last two years. He had kept the accommodation locked and allowed the adjoining tenant to use it. In paragraphs 10 and 12 of the application under Section 21 of the Act, the landlord alleged that the tenant was alone and had been employed in M.A.H. Degree College, Ghazipur and bad been serving there for the last two years. He had kept the accommodation locked and allowed the adjoining tenant to use it. Further, he had shifted completely to Ghazipur and paid rent through S. Amjad Ali, Advocate. The landlord further alleged that he needed the accommodation for use for himself and his family and son. The land - lord was living in a house in Colonel Ganj, Kanpur which was inadequate and the house was ill - ventilated and at the and of a long land. His son, a practising Advocate, needed accommodation for a good and proper office. The landlord stated the number of his family members and needed the accommodation on the above mentioned grounds. 5. The written statement of the tenant was a denial of these facts but in regard to his working at Ghazipur there was no denial. He admitted that he was working in Ghazipur but stated that he was not established there. In reply to the contents of paragraph 12 of the application it was admitted that rent was paid upto January 1973 by S. Amjad Ali who occupied a portion of the house. It was denied that the landlord had any genuine need for the accommodation. He was living in his ancestral house which is suitable on all counts, being open to air, light, free from dampness and darkness and easily accessible. Even for the matter of location for a lawyer that house was suitably located. Lastly, it was alleged that the application was moved mala fide with evil intentions. 6. The Prescribed Authority after considering the respective cases of the parties came to the conclusion that the tenant had admitted that he was not living in the accommodation in dispute since he was employed at Ghazipur. The Prescribed Authority further found that no member of the family of the tenant was living in the house. In regard to the alternative accommodation offered by the landlord the Prescribed Authority was of the view that since the tenant did not live in Kanpur, question of alternative accommodation was not to be considered. He found the requirements of the landlord to be bona fide, genuine and pressing. In regard to the alternative accommodation offered by the landlord the Prescribed Authority was of the view that since the tenant did not live in Kanpur, question of alternative accommodation was not to be considered. He found the requirements of the landlord to be bona fide, genuine and pressing. Consequently, he allowed the application by his order dated 20.4.1978. 7. On appeal the VIIIth Addl. District Judge, Kanpur affirmed the findings of the prescribed Authority that the tenant does not reside in the accommodation in suit and does not require the accommodation genuinely for his use and occupation was well founded. On these findings be held that the release of the accommodation in favour of the landlord would cause no hardship to the tenant. On a comparison of hardship of the parties. the Appellate Authority affirmed the finding of the Prescribed Authority that the landlord would suffer greater hardship and inconvenience in case the application for release was not allowed. The appeal was accordingly dismissed by the impugned order dated 14th October, 1981. 8. Thereupon the present writ petition was filed. In this petition. Mr. R.M. Zaidi, Learned counsel for the petitioner urged that the application under Section 21 of the Act was misconceived. The landlord should have prayed for release under Section 16 of the Act. He referred to paragraphs 10 and 12 of the application for release, wherein the landlord had stated that the petitioner had shifted completely to Ghazipur and one Shri Amjad Ali and his son, both of whom were Advocates, were occupying the accommodation in suit. Mr. Zaidi contended that if the act of the tenant in shifting himself from Kanpur to Ghazipur was a fact then the provisions of Section 12 of the Act were attracted and the landlord's remedy lay by way of an application under Section 16(l) (b) of the Act. Such an application had to be made before the District Magistrate. On this count he urged that the Prescribed Authority and the Appellate Authority erred in allowing the application for release of the accommodation in suit. 9. Admittedly, the above contention of Mr. Zaidi was not raised before the Prescribed Authority and the Appellate Authority. The point has been raised for the first time in this Court. I have heard the learned counsel for the parties on the point. 10. In support of his contention Mr. 9. Admittedly, the above contention of Mr. Zaidi was not raised before the Prescribed Authority and the Appellate Authority. The point has been raised for the first time in this Court. I have heard the learned counsel for the parties on the point. 10. In support of his contention Mr. Zaidi relied on a decision of a learned Single Judge of this Court in Dr. Ashok Kumar v. K.C. Panwar and others, A.R.C 1979 p. 193. In this case, the learned Judge has taken the view that where the vacancy has occurred, the question of release under Section 21 did not arise. The facts of that case in brief. Dr. Ashok Kumar the petitioner was the landlord of a double storied building. He resided with his family members on the first floor. A portion on the ground floor had been let out to an Income-Tax Officer. The remaining portion of the ground floor was in occupation of the landlord. Respondent K.C. Panwar sent an application to the District Magistrate for Allotment of accommodation which was going to be vacated by the Income-Tax Officer. The respondent's case was that he had been transferred in place of Shri O.P. Agarwal, the Income-Tax Officer. On the same day, Shri O.P. Agarwal, the Income-Tax Officer also intimated to the District Magistrate about the vacancy. The Rent Control and Eviction Officer issued notice to the petitioner. Instead of moving an application under Section 16(1) (b) the petitioner filed an application under Section 21 of the Act. The Rent Control & Eviction Officer allowed the application under Section 21 in terms of a compromise and released the premises in favour of the petitioner. Subsequently, the Rent Control & Eviction officer allotted the premises to K.C. Panwar. The order of allotment however did not give the details of the accommodation which had been let out. The respondent K.C. Panwar made an application for a CORRECTION to be made in the allotment order for inclusion of two more rooms. This was allowed by the Rent Control & Eviction Officer and thereafter a writ petition was filed in this Court. The question that arose for decision in the writ petition was about release application under Section 21 of the Act. This was allowed by the Rent Control & Eviction Officer and thereafter a writ petition was filed in this Court. The question that arose for decision in the writ petition was about release application under Section 21 of the Act. The learned single Judge held that a lawful compromise could be relied in proceeding under Section 21 but he held that when the sitting tenant had made an application intimating vacancy and an application for allotment had been made by respondent K.C. Panwar, the Prescribed Authority was not justified in making an order of release under section 21 on the basis of the compromise. It was further held that the proceeding taken under Section 21 were collusive. The learned single Judge observed : "An application under section 21 can be filed against a sitting tenant. A case under Section 16 is different than the one covered by Section-2l. Where, as here, vacancy had occurred, the question of making release order under section 21 did not arise. The premises therefore could not have been released. In fact, the application itself was not maintainable and, as such, the order passed thereon was a nullity. Accordingly, the petitioner can not succeed on the basis of the release made in proceeding under section 21." I have referred to this case in detail, for it would be noticed at once that in the above mentioned case the sitting tenant himself had intimated of the imminence of vacancy. He was a public servant and was vacating the premises on the basis of his transfer from the station. In such an event there was an imminence of vacancy. This gives jurisdiction to the Rent Control & Eviction Officer to make allotment of the accommodation after notice to the landlord. Consequently, in the above case an application under section 21 of the Act for the release of the accommodation on the basis of a compromise between the out going tenant and the landlord could not be deemed to be a lawful compromise and accordingly the release order under Section 21 of the Act was rightly set aside. 11. A perusal of the provisions of sections 16 and 21 of the Act shows that the landlord has option take an application under either of these provisions but there is a distinction. 11. A perusal of the provisions of sections 16 and 21 of the Act shows that the landlord has option take an application under either of these provisions but there is a distinction. In case, there is a sitting tenant and the landlord seeks release of the accommodation then he cannot make an application under section 16 of the Act. In case the tenant has vacated the accommodation and the relationship of landlord and tenant has ceased then in that event an application under Section 16 of the Act would be appropriate. The crux of the matter therefore is what is the stage of relationship between the parties when the application for release is made. If there is no subsisting relationship of landlord and tenant between the parties and if the person in occupation is not a tenant or unauthorised occupant, then in that even the landlord can proceed under Section 16 of the Act by taking the plea that there is a deemed vacancy. Similarly, where the tenant had shifted from the accommodation taking his bag and baggage, it will also amount to a deemed vacancy. 12. The facts of the present case are slightly different. Although the landlord had claimed in the present case that the tenant had shifted to Ghazipur but he had at the same time stated that he had allowed two of his neighbours to occupy the disputed premises and they had paid rent on behalf of the tenant. The payment of the rent signifies the continuance of tenancy even though the tenant may not be living in the accommodation in dispute, but contents of paragraphs 10 and 12 of the application for release undoubtedly speak about the shifting of the petitioner for earning his livelihood to Ghazipur. That apparently has been made to show that the tenant did not need the accommodation. The very fact that rent was being paid to the landlord on behalf of the tenant indicated that the relationship between the parties i.e. landlord and tenant subsisted. In this view of the matter, the landlord was justified in moving an application under Section 21 of the Act. Had he filed an application under Section 16 of the Act on account of deemed vacancy, it was possible for the tenant to raise a plea that the application was not maintainable, as the relationship of landlord and tenant subsisted between the parties. 13. Had he filed an application under Section 16 of the Act on account of deemed vacancy, it was possible for the tenant to raise a plea that the application was not maintainable, as the relationship of landlord and tenant subsisted between the parties. 13. Learned counsel for the respondents referred to a decision Kumari Sarveshari and others v. IIIrd Addl. District Judge Lucknow and others, A.R.J. 1934 p. 72. In this case the petitioners who were landlords of a residential building, made an application under Section 21(1) (a) of the Act on the ground that they needed the accommodation for their own residence. The application was opposed by the tenants, but the same was allowed by the Prescribed Authority. On appeal, the Appellate Court took the view that the petitioners should have applied under Section 16 and not under Section 21 of the Act, and as such, the appeal was allowed. Thereafter, the landlords came up to this Court in writ petition under Article 226 of the Constitution. The appellate Court held that section 16 of the Act was attracted because the petitioners pleaded that the opposite parties were not living in the house for the last several years. One was living outside the country and another in Dehradun, and some strangers were living there. On this the appellate Court held that there was a deemed vacancy within the meaning of Section 12 of the Act. The learned Single Judge, however, held that this was a case under Section 21 of the Act and not under Section 16 of the Act. He noticed that the case was contested by the tenants before the Prescribed Authority and they had also filed an appeal. It was, therefore, not a case where the tenants had admittedly ceased to have any concern with the house. The learned Single Judge thereafter observed : "It was therefore surprising that an argument pressed on behalf of the tenants that the house was vacant in the eye of law should have been accepted by the appellate court for throwing out the landlord's petition under section 21. The learned Single Judge thereafter observed : "It was therefore surprising that an argument pressed on behalf of the tenants that the house was vacant in the eye of law should have been accepted by the appellate court for throwing out the landlord's petition under section 21. If the tenants had really ceased to occupy the accommodation and the house was to be deemed to be vacant then they had no locus standi to maintain the appeal and the appeal should have been dismissed on that ground instead of being allowed." The Court further observed that the tenant's plea which had found favour with the appellate court was clearly untenable. It was further held that even if a tenant inducts some outsiders in a building it would not bars suit under Section 20 on the ground of sub-letting nor an application under Section 21 on the ground of balance of hardship at the instance of the landlord. It was then observed : "It is open to the landlord to pursue either of the remedies and one cannot be defeated merely on the ground that another remedy was also available to him." 14. I am in agreement with the view taken in the above case. The facts of the present case show that the tenancy had not come to an end and, as such, an application under Section 21 of the Act was maintainable. The landlord could not be non - suited merely on the ground that he had another remedy under Section 16 of the Act. The decision in the case of Dr. Ashok Kumar v. K.C. Panwar & others (supra) is clearly distinguishable on facts. There was a clear finding in that case that there was imminence of vacancy and an application under Section 16 of the Act lay in such a case. A Division Bench of this Court in Smt. Kanta Devi Jain v. Addl. District Judge & others, 1979 (U.P.) R.C.C. 577, held that a landlord can apply both under Section 21 or under Section 16 of the Act. In view of above, I see no merits in the contention of the learned counsel for the petitioner that the application under Section 21(1) (a) was not maintainable and that the landlord should have applied under Section 16 of the Act. In view of above, I see no merits in the contention of the learned counsel for the petitioner that the application under Section 21(1) (a) was not maintainable and that the landlord should have applied under Section 16 of the Act. As far as the question of the merits is concerned, I have heard the learned counsel, but I find no error of law to vitiate the findings arrived at by the Prescribed Authority and the Appellate Authority. No legal flaw in the findings could be established. In my opinion, the application for release under Section 21(1) of the Act was maintainable. No other point was argued. 15. For the reasons mentioned above, this petition must fail and is dismissed with costs. The petitioner tenant is allowed two month's time to vacate the accommodation in dispute.