Judgment S.P. Srivastava, J. 1. Feeling aggrieved by an order passed by the appellate authority in the proceedings under section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as Act), whereunder allowing the appeal, the accommodation in dispute let out to the petitioner for being utilised for commercial purpose has been released in favour of the landlord, the petitioner tenant has sow approached this Court seeking redress praying for the quashing of the appellate order. 2. I have heard Sri R.N Singh, learned counsel for the petitioner and Sri B.P. Agrawal, learned counsel representing the contesting landlord. I have also perused the record carefully. 3. The facts, short of details and necessary for the disposal of the present case lie in a narrow compass. The accommodation in dispute is a shop with a frontage of 11 feet 1 inch and a depth of 15 feet 10 inches. This shop according to the tenant-petitioner is utilised by him for the preparation and sale of 'Jalebi' a sweetmeat for a period of about 8 years. Proceedings under section 21 (1) (a) of the Act were initiated with the filing of an application seeking the release in question in the month of May, 1991 alleging that it was during the minority of the landlord that the shop in dispute had been let out to the petitioner and now the said shoo was required for setting Pradeep Kumar in business therein. It was asserted that Pradeep Kumar was unemployed and genuinely desired to establish himself in business and have an independent source of income It is also asserted that apart from the accommodation in dispute no other accommodation was available for satisfying the need of Pradeep Kumar. The landlord further asserted that the shop in dispute was in fact not being utilised by the tenant but was kept locked and the business of preparation and sale of 'Jalebi' was being done by him on a Thela and therefore, the release of the shop was not going to affect the tenant at all as he can continue his business of preparation and sale of 'Jalebi' on the Thela. The landlord indicated that he was competent to ran a business of Kirana merchant and wanted to establish Kirana business in the shop in dispute. The landlord indicated that he was competent to ran a business of Kirana merchant and wanted to establish Kirana business in the shop in dispute. It was also asserted in support of the release in question that the father of the landlord was occupying a shop having a frontage of 6 feet 2 inches and a depth of 16 feet 1/2 inches where he was continuing his independent business and had to support from the income-thereof himself, wife, tons and unmarried daughter. It was indicated that Pradeep Kumar did not like to continue to remain a burden on his father and wanted himself to settle in independent business and the need for the shop in dispute was a bona fide, genuine and pressing. It lis also asserted that he will suffer greater hardship in the event of the rejection of the release application as compared to the hardship likely to be suffered by the tenant in the event of the grant of the application. In this connection it was also pointed out that a large number of newly built shops were available as an alternative accommodation for the tenant which were situate nearby the disputed shop but instead of repeated requests, the tenant was net vacating the shop in dispute. 4. The tenant petitioner contested the claim of the landlord respondent raising various pleas asserting that the father of the landlord was not doing any business and the shop in his occupation was lying vacant and could easily be utilised for the purpose for which the release was sought. It was also asserted that Pradeep Kumar was not unemployed as alleged but was doing business of a contractor in partnership with one Sri Mehta and did not require the shop in dispute at all. The tenant petitioner also asserted that he had been doing the business of 'Halwai' i.e. Sweat meat business in the shop in dispute for the post 8 yearly and had acquired a 'good will' He also claimed that the shop in dispute was the only source of livelihood for the tenant and from the income there of he was supporting his family. The tenant also claimed that he will suffer greater hardship is the event of the grant of the release sought for as compared to the likely hardship which the landlord might suffer in the event of the rejection of the application for the release. The tenant also claimed that he will suffer greater hardship is the event of the grant of the release sought for as compared to the likely hardship which the landlord might suffer in the event of the rejection of the application for the release. The prescribed Authority came to the conclusion that it was not established that the father of Pradeep Kumar was not doing any business in the shop continuing to be in his occupation and the said shop could very well be utilised by Pradeep Kumar for satisfying his need. The Prescribed Authority did not accept the claim of the petitioner hat the need for the shop set up by him was genuine and bona fied. The prescribed Authority further did not accept the claim of the landlord that the tenant was doing business of preparation and sale of 'Jalebi' on a Thela on the solitary ground that had it been so he would not have continued his tenancy in respect of the accommodation in dispute on payment of rent at the rate of Rs. 200/- per month. Consequently it was held that in the event of the grant of the release sought for, (the tenant will suffer greater hardship as compared to the likely hardships that the landlord might suffer in the event of the rejection of the application for the release. 5. On the aforesaid findings the Prescribed Authority rejected the application seeking the release of the accommodation in dispute. 6. The appellate authority, however, reversed the findings recorded by the prescribed authority, while disposing of the appeal filed by the landlord against the order passed by the prescribed authority. After carefully considering the evidence and the material on the record, the appellate authority came to the conclusion that Pradeep Kumar for whom the release of the shop in dispute was sought, was an unemployed adult who genuinely required to set up himself in business and his need for the release of the accommodation in dispute was bona fide and pressing. The Appellate authority rejected the claim of the tenant petitioner that Pradeep Kumar was doing business of contractor and was employed. It recorded a categorical finding (bat it was not established on record that Pradeep Kumar was employed in any manner and that in fact he was continuing 10 be an unemployed adult. The Appellate authority rejected the claim of the tenant petitioner that Pradeep Kumar was doing business of contractor and was employed. It recorded a categorical finding (bat it was not established on record that Pradeep Kumar was employed in any manner and that in fact he was continuing 10 be an unemployed adult. the appellate authority also recorded a finding that the father of Pradeep Kumar was in fact running a Parchun business in the shop in his occupation and was having a meagre income Which he was supporting his wife and family. The prescribed authority also found that Pradeep Kumar required to establish himself in business and have an independent source of income for satisfying his growing needs. On the mutter relating to the cooperative hardships, the appellate authority, on an appraisal of evidence on record came to the conclusion that it stood established that the tenant petitioner was carrying his business of preparation and sale of 'Jalebi' on a Thela and was not likely to suffer- my hardship in the event of the grant of the release sought for. It was also found that the tenant had not taken any step whatsoever to Sad out any alternative accommodation and that factor also negatived his case so far as relative hardships were concerned. On the question of 'good will' the appellate authority came to the conclusion that taking into consideration she nature of business being run by the petitioner tenant and the period of business, there could be no question of acquiring any 'good will' as claimed. In view of the aforesaid findings, the judgment and order passed by the prescribed authority was reversed by the appellate authority and the application seeking release of the shop in dispute for satisfying the requirement of Pradeep Kumar was allowed as prayed for. 7. In support of the writ petition, the learned Counsel for the petitioner has contended that the requirement set up for the release of the shop in dispute could very well be satisfied by utilising, the shop in the occupation of the father of Pradeep Kumar wherein the father was continuing a Kirana business. It is asserted that Pradeep Kumar according to his own case wanted to set up a Kirana business and therefore, he could very well join with hit father who was doing the business in another shop. It is asserted that Pradeep Kumar according to his own case wanted to set up a Kirana business and therefore, he could very well join with hit father who was doing the business in another shop. IN this connection it may be noticed that the shop in occupation of the father of Pradeep Kumar was reported by the Commissioner had a frontage of only 6 feet 2 inches and a depth of 16 feet 1/2 inch. 8. This Court in its decision in the case of M/s. Deep Chand Name Chand Jain vs. Prescribed Authority, Saharanpur, 1980 ARC 479 had indicated that each adult of a family ought to be legitimately entitled to work for his own independent existance and sustanance. It was further observed that he is entitled to choose a vocation or profession suiting his individual aptitude, education or qualification, capabilities and so forth. This Court emphasised that need of such an unemployed member cannot be dismissed by telling him that he must follow line or profession of the other members of the family or try to get absorbed in the business already carried on by the family. This Court however cautioned that of course such a need of the landlord will have to be balanced against the hardship likely to be caused to the tenant from the grant of the application. In the aforesaid decision this Court had negatived the contention that if some members of the family of the landlord are found engaged in business of profit, the building under tenancy ought not to be released for enabling the unemployed or unengaged members of the family to start business of their own in that building merely because of family as a circle or unit has some existing business engagement. There could be no manner of doubt that the release contemplated under section 21 (1) (a) of the Act can he granted for setting in a new vesture of the unengaged member of a family. There is nothing in the Act or policy underlying it which may lead to any inference contrary to it in the present case, the bona fide need of the disputed shop was the need to settle Pradeep Kumar in an independent business. The need to set up a son in an independent lousiness has always been recognised as bona fide and genuine. The need to set up a son in an independent lousiness has always been recognised as bona fide and genuine. Even if some members of the family are engaged in the business that cannot be an impediment for the grant of the release of (he accommodation for enabling the unemployed or unengaged member of the family to start business of his own or for augmenting income as each adult member of the family is entitled to work for his own independent existence and is further entitled to chose a vacation suiting his individual aptitude, education and qualification. Further there could be no manner of doubt that such release can also be granted to provide a source to augment the income of a family member so that he may lead a desent life and cater to the needs of his growing family. 9. Taking into consideration the size of the shop wherein the father of Pradeep Kumar is continuing his business and further taking into consideration the aspects indicated hereinbefore, I am of the definite view that there can be no justification for compelling Pradeep Kumar to join his father in the business being run by him in the small accomodation, declining him the opportunity to set up an independent business of his own specially when the extent of the accomodation for the business to be set up by Pradeep Kumar for which his claim has been found to be genuine is much larger than the accomodation at the disposal of his father. In the circumstances, therefore, the submission of the petitioner in this regard is totally misconceived and is not at all acceptable. 10. It has been next contended by the learned counsel for the petitioner that the impugned order passed by (the appellate authority stands vitiated in Taw as the implications arising under the loss' of 'good will' in the event of the grant for release sought for have not been considered by the appellate authority in a correct perspective. In this connection it may be noticed that the provisions contained in the Act and the Rules framed thereunder do not attach any significance to a 'good will'. In this connection it may be noticed that the provisions contained in the Act and the Rules framed thereunder do not attach any significance to a 'good will'. Rule 16 (2) (a) of the Rules does not refer to any good will but none-the-less emphasizes on the length of the period of business being done tin the building indicating that the larger the duration of business the less justification for allowing the application for release. It seems to me that the omission to use the term 'good will' appears to be deliberate. It may be usefully noticed that the assets of a business include not only the stock-in, trade and book debts, furniture's, bills, machinery etc. but also an intangible and a very valuable property called 'good-will'. The word 'good will' is very difficult to define and often It can be safely stated that it is nothing more than the probability of the old customers resorting to old place. It sometimes means more than this as often the good will exists quite independently of locality. An assignment of the good will necessarily includes exclusive right to use the name or style in which the business is run. As a matter of fact the 'good will' of a particular business as pointed out by this Court in the case of Mahabir Prasad vs. VIth Additional District Judge, 1993 (2) ARC 401, is in fact based on personal dealing, attitude, behaviour and conduct of the shop keeper with his customers. Good will in such type of business is not attached to a particular premises but is attached to the person who is carrying on the business if the shop keeper has good and fair dealings with the customers he would therefore, carrying is good will with him even if the business is shifted from one place to another. This Court in the aforesaid decision had pointed out that the mere fact that the tenant is carrying on business in the 157-Rep. 1994 shop since long could not be a ground to hold that in case his business is shifted to another shop he will lose his 'good will'. This Court further observed that looking to the bona fide requirement of the landlord and also to the comparative hardships of the parties, the factor of the good will would be of little consequences. This Court further observed that looking to the bona fide requirement of the landlord and also to the comparative hardships of the parties, the factor of the good will would be of little consequences. In the present case taking into consideration the above aspects and the fact that the business off the petitioner is of preparation and sale of 'Jalebi' it Is obvious that in any event, the petitioner will carry his reputation with him where ever he goes and In view of the finding returned by the appellate authority that the petitioner is continuing the preparation and sale of Jalebi on a Thela which obviously means moving from one place to another it is further indicated that the petitioner carries his reputation with him which is not attached to any particular place, there can be no manner of doubt that this factor cannot come in the way of the grant of the release and the finding of the appellate: authority in this regard is not liable to be disturbed on this account. 11. It has been next contended by the learned counsel for the petitioner that in any view of the matter, the appellate authority was bound to consider the question relating to the splitting up of the tenancy and the possibility of the grant of a partial release of the accommodation in dispute as envisaged under rule 16 (1) (d) of the Rules framed under the Act. The relevant portion of Rule 16 referred to above is to the following effect:- "16. Application for release on the ground of personal requirement section 21 (1) (a) and 34 (8) (1) – In considering the requirements of personal occupation for purposes of residence by, the landlord or any member of his family, the prescribed authority shall except in cases provided for in the Explanation to section 21 (1), take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall also have regard to such factors as the following:- (a)................. (b)................. (c)................... (d) Where the tenant's needs would be adequately met by leavi and 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. (e).............. (b)................. (c)................... (d) Where the tenant's needs would be adequately met by leavi and 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. (e).............. (f)............... (g)............... 12. A perusal of the aforesaid provision indicates that the said provision is attracted in cases where the requirements for the release is for personal occupation for the purpose of residence of the landlord or by any member of his family. Ex-facie therefore. Rule 16 (1) (d), referred to above cannot be deemed to be attracted to those cases where the requirement for the release is for a purpose other than residence of the landlord or for member of his family. The factors to be taken into 'account while granting release in respect of a building let out for purposes of any business have been indicated in Rule 16 (2) of the Rules framed under the Act. These rules do not provide for any such factor as indicated in Rule 16 (1) (d) of the Rules. It seems to me that Rule 16 (2) is framed in the exercise of the jurisdiction envisaged under the IVth proviso to section 21 of the Act for prescribing the factors which have to be taken into account while considering an application for release under clause (a) of sub-section (1) of section 21 in respect of a building let out for the purpose of any business. By necessary implication, therefore, the application of Rule 16 (1) (d) which is confined to the cases of requirement of personal occupation for the purpose of residence, has to be taken as not applicable to cases where release is sought for non residential purposes and the provision contained in Rule 16 (1) (d) of the Rules cannot come to the rescue of the petitioner. I respectfully agree with the view expressed in this regard in the decision of this Court in the case of M/s. Deep Chand Nem Chand (supra) as contained in paragraph 37 to 41 of the aforesaid judgment. 13. I respectfully agree with the view expressed in this regard in the decision of this Court in the case of M/s. Deep Chand Nem Chand (supra) as contained in paragraph 37 to 41 of the aforesaid judgment. 13. However, since section 2 (1) of the Act itself provides that the prescribed authority can grant release even in respect of any specified part of the building under tenancy it is obvious that whether or not the provision contained in Rule 16 (1) (d) of the Rules is applicable to a building utilised exclusively for non-residential purposes,, the question about the partial release can be considered and I do not find any impediment in this regard under the law. It may be noticed in this connection that normally the contract of tenancy is a single and indivisible contract and the unity of such contract cannot be broken or in other words the spirting up of a tenancy is not permissible except under the condition contemplated either under section 108 of the Transfer of Property Act or where the lessor and the lessee agree to ft as observed by the Division Bench of this Court in the case of Suresh Kumar Saxena vs. Rajendra Kumar Agarwal, 1975 ALJ 153 or there is any specific provision incorporated in the statute empowering the court to do so as indicated by the Honourable Supreme Court in the decision in the case of Miss. S. Sanyal vs. Gian Chand. AIR 1968 SC 438 , wherein it was observed that in the absence of a specific provision incorporated in the Statute the court has no power to break up the unity of the contract of letting. However, as noticed above, the present Rent Control Act specifically provides that the Prescribed authority may evict the tenant either from the entire building under tenancy or from a part thereof depending upon the need of the landlord Since the provisions of the Act by virtue of section 38 thereof shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act, 1882 and in this view of the matter override any provision in the said Act to the extent of inconsistency, it can be safely assumed that the Act specifically empowers the prescribed authority or the appellate authority to break up or split up the tenancy if the pre-requisite conditions as contemplated under the Act are satisfied. 14. 14. The learned counsel for the petitioner has urged that the appellate authority committed manifest error in as much as it did not proceed to consider whether the need of the landlord could be satisfied by releasing only a portion of the accomodation in question instead of entire accomodation. This factual matter should have been placed by the petitioner before the authorities below. However, though this plea was not raised in the written statement filed by the petitioner or even in the writ petition yet in the facts and circumstances of this case, it seems to me that in view of what has been stated above, it seems to me that in view of what has been stated above, this aspect of the matter may toe examined. While considering the matter relating to the partial release of the accomodation in dispute it is to be noticed that the petitioner himself had not made any such assertion in his pleading before the authorities below, Taking into account, the extent of the accomodation in dispute which has a frontage of only 11 feet 2 inches, the inference on the basis of the absence of any pleadings as indicated above, which can be legitimately drawn is either the accomodation in question is not capable of apportionment or the petitioner does not desire it. Considering the nature of the accomodation in dispute and its extent together with the requirement set up for the release, I am of the view that on the facets and circumstances of the present case, neither the landlord's need would be served by releasing only a part of the accomodation nor the tenant's need would be met by releasing any part of the building in question. In this view of the matter, it is not at all necessary to remand the matter relating to the partial release of the accomodation in dispute as it will be nothing else except an exercise in futulity specially when no statutory obligation can be deemed to have been cast on the respondent authority to decide this question under the Act or the rules framed thereunder, in view of the circumstances indicated herein before 15. The learned counsel far the petitioner has next contended that the finding recorded by the appellate authority on the question of relative hardship stand vitiated in law. 16. The learned counsel far the petitioner has next contended that the finding recorded by the appellate authority on the question of relative hardship stand vitiated in law. 16. In its decision in the case of Smt. Bega Begum vs. Abdul Ahad Khan, 1979 (1) SCC 273 , the Apell Court had, while interpreting the expression 'reasonably required' as occurring in section 11 (1) (h) of Jammu and Kashmir Houses and Shops Rent 'Control Act, 1966 had observed as indicated herein below:- "Moreover, section 11 (h) of the Act uses the words 'reasonable requirement' which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purposes of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds This appears to us to be the general scheme of all the Rent Control Acts prevalent in other States in the Country. This Court has considered the import of the word 'requirement' and pointed out that it merely connotes that there should be an element of need." It may be usefully noticed that while expressing the above view the Apex Court had in mind the schemes of all the Rent Control Acts prevalent in other States in the country. This fact has been expressly mentioned in the aforesaid judgment. Obviously therefore, the aforesaid observation will apply to the provisions contained in section 21 of the U.P. Act No. 13 of 1972 also which broadly contemplates same considerations as required to be taken into account as provided under section 11 (1) (h) referred to above. 17. The connotation of the term 'requirement' as contemplated under section 21 of the Act, therefore, neither should be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get an order of release. 17. The connotation of the term 'requirement' as contemplated under section 21 of the Act, therefore, neither should be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get an order of release. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds contemplated under section 21 of the Act. The provisions contained in the Act strike, a just balance between the genuine need of the landlord on the one hand and the great inconvenience and troubles of the tenants on the other, Since section 21 of the Act is meant for the benefit of the landlord, therefore, it must be so construed as to advance the object behind the said provision. The tenant has to establish that if be is evicted he will suffer greater hardship as compared to the landlord and must lead clear evidence to show that inspite of the best efforts he was unable to gel another alternative suitable accomodation in the absence whereof the scale of relative hardships may be titled in favour of the landlord as the inconvenience, loss or trouble resulting from a denial of the order of release in favour of the landlord will for out-weight the prejudice or the inconvenience which may likely be caused to the tenants. 18. This Court in its decision in the case of N.S. Datta vs. VIIth Additional District Judge, Allahabad, 1984 (1) ARC 113, had observed that the proviso in question requires a mandatory regard being had to the advantages or disadvantages either in the event of the application for release being allowed or otherwise but each party was required to adduce evidence to show that hardship could be caused to him by grant or refusal of the release of the building under tenancy and that the tenant must also adduce evidence to the effect that other reasonable accomodation was not available to him. It was further observed that the Court is entitled also to take into account the fact that the tenant has neither alleged nor proved to have made effort to have an alternative accomodation and that non-availability of alternative accomodation to the tenant is not in itself an adequate ground to reject the landlord's application for release. It was further observed that the Court is entitled also to take into account the fact that the tenant has neither alleged nor proved to have made effort to have an alternative accomodation and that non-availability of alternative accomodation to the tenant is not in itself an adequate ground to reject the landlord's application for release. In its decision in the case of Dr. Munni Lal vs. IVth Additional District Judge, Etah, 1984 (1) ARC 378, this Court has clarified that the fact: that nothing is brought on record indicating that the tenant had made any effort during the period of the pendency of the release application for getting some accomodation allotted in his favour or otherwise or that he (had a failed in his attempt is a relevant circumstances while considering the question relating to comparative hardships. Taking into consideration the scheme of the Act, I am of the firm opinion that such an inaction on the part of the tenant constitutes an additional circumstance which entitles the landlord to have a preference shown to him while striking the just balance between the genuine need of the landlord on the one hand and the likely inconvenience or trouble of the tenant on the other. It may further be borne in mind that the use of the phrase "having regard to" as enviaged under the fourth proviso to section 21 of the Act would clearly show that this provision was not obligatory. The factors mentioned in Rule 16 of the Rules, should, however, have to be kept in mind while deciding the release application. No single factor can be held to be conclusive. As observed in its decision in the case of Mohd. Muslim vs. District Judge. Varanasi, 1978 ARC 328" it is the cumulative effect of all that has to be seen, The Inaction of the tenant to search for an alternative accommodation, as already indicated hereinbefore, constitutes an additional factor which may our-weight the hardship, if any, likely to be suffered by the tenant in the event of the grant of the release application in case where the bona fide requirement for the release stands conclusively established. Considering the facts and circumstances of this case, the findings recorded by the appellate authority on the question releating to the bona fide need and relative hardships which findings are based on appraisal of evidence and the materials on the record do not appear to suffer from any such legal infirmity which may justify interference therein while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India. Moreover, no justifiable ground is been made out for the intervention of the equity in the ultimate conclusion on the above aspects as reached by the appellate authority. 19. The learned counsel for the petitioner has, however, urged that as provided under the second proviso to section 21 (1) of the Act, the appellate authority should have awarded compensation. The aforesaid proviso stipulates that if any application clause (a) of section 21 (1) is made in respect of any building let out exclusively for non-residential purpose, the prescribed authority while making an order of eviction shall after considering all relevant facts of the case award against the landlord to the tenant an amount not exceeding two years rent as compensation and may subject to Rules impose such other conditions as it thinks fit. 20. There appears to be some force in the contention raised by the petitioner in this regard in the circumstances of the case, while granting the release, the appellate authority should have awarded compensation as envisaged under IInd proviso to Section 21 (1) of the Act. In view of the conclusions indicated hereinbefore, the writ petition is dismissed with the direction that the respondent authority shall proceed under section 23 of the Act for the enforcement of the eviction order made under Section 22 of the Act, only after the landlord deposits with it two years rent payable for the accomodation in dispute calculated as the rate of Rs. 200/- per month for payment to the tenant as compensation, provided that any amount of rent due in respect of the building in question up to the date of making of the aforesaid deposit shall however, be adjustable as against the amount of compensation indicated above. 21. There shall however, be no orders as to costs. Petition dismissed.