Rule 16 (1) (d) of the Rules framed under the U. P. Act No. XIII of 1972, which deals with the partition of residential buildings, does not apply to commercial buildings.

R. H. Zaidi, J.

1. Present petition arises out of proceedings under Section 21 (1) (a) of U. P. Act No. XIII of 1972 and is directed against the order passed by the authority below dated 30-10-1995, allowing the appeal of the landlord and dismissing that of the petitioner.

2. THE contesting respondent No. 3 filed the release application for the release of 40/69, Hospital Road, Kanpur, a commercial building, in his favour, mainly with the allegations that his son Avanish Kumar Sexena was doing law and has completed the same and has started practising as an advocate at Kanpur and his daughter Km. Sangeeta wanted to run a coaching Center in music and dance particularly when her mother was Head of the Department in Music in D. G. College, Kanpur and was in a position to help her daughter. It was also pleaded that after his retirement he himself wanted to open a shop of books in the building in question as the same was suitable for the said business. It was asserted that Avanish Kumar Saxena wanted to open his chamber in the building in question.

The application was contested and opposed by the petitioner who has denied the pleas taken by the landlord and pleaded that the need set up by him was neither genuine nor bona fide and the plea of hardship was also taken.

3. THE Prescribed Authority was pleased to allow the application in part i. e. two rooms situated behind the main Hall were released in favour of the landlord.

4. FELLING aggrieved by the judgment and order passed by the Prescribed Authority two appeals were filed before the appellate authority i. e. one by the petitioner and the other by the landlord. The appellate authority allowed the appeal filed by the landlord and dismissed the appeal filed by the petitioner. The petitioner has challenged by means of this petition, the order passed by the appellate authority as well as the order passed by the Prescribed Authority in so far it stands against him.

Heard learned counsel for the parties.

5. LEARNED counsel for the petitioner vehemently urged that the need of the landlord could be satisfied, by releasing a portion of the Hall in question and the appellate authority did not consider this aspect of the matter. He has also urged that the landlord has failed to show that he had the financial capacity to establish the proposed business.

6. ON the other hand learned counsel appearing for the respondent No. 3 contended that the findings recorded on the question of need and hardship by the authorities below, were findings of fact and were based on relevant evidence.

It has also been urged that the points raised by the learned counsel for the petitioner were not raised before the authorities below as they involve factual controversy, therefore, should not be permitted to be raised under Article 226 of the Constitution of India for the first time.

7. LEARNED counsel for the respondent also submitted that clause (d) of sub-section (1) of Rule 16 has got no application to the commercial buildings.

8. I have considered the rival submissions made by the learned counsel for the parties and perused the record.

The points raised by the learned counsel for the petitioner were not taken by the petitioner before the appellate authority. From the map annexed with the writ petition it is apparent that without passing through main Hall of the building it was impossible to reach the rooms which have been directed to be released in favour of the landlord. The question of feasibility of partition of the Hall was not raised by the petitioner before the appellate authority; Clause (d) of sub-rule (1) of Rule 16 is apparently applicable only to the residential buildings. In some of the cases it has been held by this court that Clause (d) could also be applied to the commercial buildings but the Supreme Court in Bhagwan Das v. Smt. Jiley Kaur 1991 (1) ARC-377, (Para-6) held that sub-rule (1) of Rule 16, has got no application to the accommodations let Out for business purposes it deals with