JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order of respondent No. 1 whereby he allowed the appeal filed by the landlord-respondent No. 2 and released the shop in question in his favour under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (In short the Act).
2. Briefly stated the facts are that respondent No. 2 filed release application under Section 21 (1) (a) of the Act against the petitioner for release of the shop in dispute on the ground that he retired as Principal of the college and the pension which he was receiving was not sufficient to meet his requirements. He wants to carry on the business of general merchandise in the shop in question to augment his income. The application was contested by the petitioner denying that the need of respondent No. 2 is bona fide. He has huge property in Kasganj and gets substantial amount of money as rent from the aforesaid property besides his pension etc. It was further stated that respondent No. 2 had let out a shop situated in Kasganj to one Purshottam in the year 1981 without any allotment order and that should be deemed as vacant. He had further let out another shop to one Musrat Hussain and after his retirement one shop to Hari Singh without any allotment and the same is also available to the landlord. The prescribed authority rejected the said application on 13.10.1984 on the finding that the need of the landlord was not bona fide. Respondent No. 2 preferred an appeal and it has been allowed by respondent No. 1 on 12.2.1989 and the shop in question has been released in his favour.
3. I have heard Sri Vipin Saxena, learned counsel for the petitioner and Sri P. N. Saxena, learned counsel for the respondent. He made statement that he does not propose to file counter-affidavit in the petition and it may be decided on merits.
4. The main thrust of submission of learned counsel for the petitioner is that respondent No. 2 was in service. He retired as Principal of the college and was getting pension. He has many properties and from such properties, he is getting rent. He filed application on the ground that he will carry on the business of general merchandise in the shop in question to augment his income. His son is carrying on business in another shop. Respondent No. 2 alleged that his income is insufficient to meet his expenses. It was for him to establish as to what income he was getting and he is to support how many member? of the family. The family of respondent No. 2 consists of himself and his wife. It was necessary for him to establish that he requires the shop in question to augment his income to meet the need of his family as alleged by him.
5. In Ved Prakash Agarwal v. IIIrd Additional District Judge, Bulansdhahr and others, 1981 ARC 30, it has been held that where the landlord's own case is that the source of his income is insufficient for him to earn his livelihood and, therefore, he requires the shop in dispute, in such a case, for examining whether the need set up by the landlord was bona fide or not, the income of the landlord becomes relevant consideration. Similar view was expressed in M/s Lalita Printers Stores v. IVth Addl. District Judge, Kanpur and others, 1981 ARC 649 ; Ram Bharose and others v. Nanak Ram and others, 1982 (2) ARC 542 ; Ram Swaroop v. District Judge, Etah and others, 1983 (1) ARC 464.
6. Respondent No. 1 has rioted the argument raised on behalf of the petitioner that respondent No. 2 was getting about Rs. 3,500 including the amount of pension and that after retirement considering the members of the family, he does not require the shop in question to carry on business of general merchandise but it has not specifically recorded any finding on this aspect. The petitioner had also filed an affidavit before respondent No. 1 that the landlord was receiving amount of Rs. 4,805 including the amount of pension and the said amount is more than what respondent No. 2 was getting when he was in service. Respondent No. 1 was required to record a specific finding as to what is actual income of respondent No. 2, and, in fact, his version that he requires the shop in question to carry on business to augment his income to support his family members is correct. The prescribed authority has rejected the application on the finding that the version of the petitioner is not believable that he requires the shop in question to augment his income and unless this finding is specifically reversed, respondent No. 1 was not justified in setting aside the order of the prescribed authority.
7. Respondent No. 2 is owner of other shops also. He had let out some of the shops in the year 1981 without any allotment order and some of the shops just before his retirement in the year 1990. He had let out one shop to one Purshottam Das in the year 1981 and another to one Kamal Chand. After Kamal Chand vacated, it was let out to one Musrat Hussain a few months before his retirement. He also let out one shop to Jalilur Rahman and another to Lal Mohammad. Respondent No. 2 has taken the view that theseshops were let out prior to retirement from service by respondent No. 2 and such action will not be taken as a ground for rejecting the application of the landlord for release of the shop in question after his retirement. It may be that the landlord had let out the shops immediately before retirement but after retirement when he seeks ejectment of a tenant who was validly let out the accommodation about 25 years prior to his retirement, the prescribed authority can examine as to whether the action of the respondent-landlord seeking ejectment of such tenant is arbitrary and with ulterior motive.
8. Learned counsel for the respondent contended that it is the choice of a landlord to select any tenant for the purpose of release of a shop which is more suitable to him. In support of his contention, he has placed reliance upon various decisions--G. R. Bhargava v. Sri Ram Raghubir, 1978 ARC 155 : Keshav and another v. IVth Additional District Judge, Budaun, 1984 (1) ARC 80 ; Dhanni Prasad Singh v. VIth Additional District Judge, Varanast and others, 1997 (2) ARC 78 and Girja Shankar v. District Judge, Jhansi and others, 1997 (2) ARC 550. It is for the landlord to determine as to which of the accommodation will be more suitable to him for carrying on the business in a shop. If, however, the landlord can proceed against the tenant who was recently let out the accommodation by him without any allotment order and the nature of such accommodation is almost the same, there is no justification not to proceed against such a tenant in preference to a tenant who has been legally inducted as a tenant.
9. Learned counsel for the respondent, however, contended that in case there is a dispute as to whether the accommodation be deemed as vacant, tt will be permissible to the landlord to file application against a tenant whose status is not in dispute. He has placed reliance upon the decision Satish Chandra Mathur v. XIIIth Additional District Judge, Kanpur Nagar and others, 1993 (1) ARC 266. The respondent No. 2 here does not allege that the accommodation which was let out by him in the year 1981 or immediately prior to his retirement from service, he could not seek eviction against them for they were not suitable. The appellate authority has not considered this aspect of the matter.
10. In view of the above the writ petition is allowed and the order dated 12.2.1989 is hereby quashed and the case is remanded to respondent No. 1 for deciding the appeal afresh keeping in view the observations made above and in accordance with law within two months from the date of production of a certified copy of this order.