JUDGMENT N.D. Ojha, J. - Respondent No. 3 Prem Swarup is the tenant of a shop of which the petitioner is the landlord. An application was made by the petitioner for release of the aforesaid shop 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) on the ground that he needed it bonafide for the use of his son Rakesh Kumar who was likely to obtain a diploma in pharmacy in the month of June, 1978 and would carry on the business of selling medicine in the said shop. The application for release was filed on 7th November, 1977. It has not been disputed that during the pendency of the proceedings Rakesh Kumar son of the petitioner did not obtain a diploma in Pharmacy. The application was contested by the petitioner and was dismissed by the Prescribed Authority. An appeal was filed by the petitioner against that order before the District Judge which has been dismissed on 10th August, 1979 by respondent No. 1. It is these two orders which are sought to be quashed in the present writ petition. 2. It was urged by counsel for the petitioner that respondent No. 1 even after having found that the need of the petitioner was covered by Section 21(1)(a) of the Act, and that there was sufficient material on the record to conclude that the petitioner wanted to establish his son who had obtained diploma in Pharmacy erroneously dismissed the application for release holding that the need of the petitioner was not pressing inasmuch as he had not specifically deposed that his financial status as to establish a medicine shop. It has further been urged by counsel for the petitioner that the finding even on the question of comparative hardship, as recorded by the respondent No. 1, suffers from a manifest error of law inasmuch as the ground on which the circumstance that respondent No. 3 was about to obtain possession over another shop during the pendency of the proceedings under Section 21 of the Act has been brushed aside, is wholly irrelevant. In this connection emphasis has been placed by counsel for the petitioner that no plea had been raised by respondent No. 3 in his written statement that the financial status of the petitioner was not such as to be able to establish a medicine shop and, consequently, there was no occasion for the petitioner to produce any evidence in this behalf. In order to establish that the petitioner has been prejudiced on this score, some material in the nature of fixed deposit receipts etc. has been produced before this Court indicating that the petitioner did have financial status to establish a medicine shop. 3. For the respondent No. 3, on the other hand, it has been urged by his counsel that it was for the petitioner, in order to establish that his need was bonafide, to prove if affirmatively that he had the financial status to establish a medicine shop and he not having done so, no exception can be taken to the finding recorded by respondent No. 1 in this behalf. It was also urged by counsel for respondent No. 3 that the petitioner was the owner of some other shops also and nothing has been shown as to why he chose the respondent No. 3 for making an application for release in preference to the other tenants. According to counsel for respondent No. 3, since respondent No. 3 was an old tenant, the application for release should have been filed against some such tenant who was a tenant for a comparatively lessor period of time. It has further been urged that the finding recorded by respondent No. 1 on the question of comparative hardship was essentially a finding of fact and could not be disturbed under Article 226 of the Constitution. 4. Having heard counsel for the parties at some length, I am of the opinion that the impugned order passed by respondent No. 1 cannot be sustained. It is true, as has been pointed out by counsel for the petitioner that respondent No. 1 has recorded a categorical finding that the need cited in the application for release by the petitioner was covered by Section 21(1)(a) of the Act and also that there was sufficient material on the record to conclude that the landlord wanted to establish his own son in business who had just obtained a diploma in Pharmacy. After recording the aforesaid finding the respondent No. 1 proceeded to consider the argument raised on behalf of respondent No. 3, that the petitioner did not have the financial status to establish a medicine shop. After pointed out that the petitioner had not given any evidence in regard to his financial status, respondent No. 1 took the view that the need of the petitioner could not be held to be a pressing one. 5. In this connection, it would be seen that Section 21(1)(a) of the Act does not contemplate that in those cases where a landlord makes an application for release of a shop on the ground that he needs it bonafide for doing business, he must also invariably produce in each case to establish that his financial status is such as to carry on the proposed business. The rules framed under the Act also do not lay down any such requirement. The guidelines to decide an application under Section 21(1)(a) are to be found in Rule 16 of the Rules framed under the Act. On the other hand, while dealing with an application for release under Section 21(1)(b) of the Act, namely, on the ground that the building is in a diplidated condition and is required for the purposes of demolition and new construction, the necessary rule is Rule 17 of the Rules. Whereas Rule 17 provides that before an application for release under Section 21(1)(b) can be granted, the Prescribed Authority shall satisfy itself inter alia that the landlord has the financial capacity for the proposed demolition and new construction. No such provision is to be found in Rule 16 of the Rules which is the relevant rule in regard an application under Section 21(1)(a) of the Act. This distinction has been noticed in Rajjan Lal v. IInd Additional District Judge, 1980(6) ALR 20. Consequently, it cannot be said that as a rule it is essential that the landlord in every case where he makes an application for release of a shop for carrying on a business should prove that he has the financial status to carry on such business. Consequently, it cannot be said that as a rule it is essential that the landlord in every case where he makes an application for release of a shop for carrying on a business should prove that he has the financial status to carry on such business. There is no such statutory requirement so that it would be said that the burden lies invariably on the landlord to establish this fact as a condition precedent to the maintainability of a release application and that on failure of establishing this fact an application for release has to be dismissed notwithstanding a finding that the need of landlord was bonafide. However, the circumstance as to whether the landlord has the necessary capacity to carry on the proposed business cannot be held to be an absolutely irrelevant circumstance. It can be set up as defence by the tenant that the landlord does not have the capacity to carry on the proposed business and that the application for release was only excuse to get rid of the tenant. In case such a plea is raised by the tenant, it would be necessary for landlord to satisfy the Prescribed Authority by producing such material as may be considered appropriate that the landlord had the necessary financial capacity to carry on the proposed business or was likely to acquire the said financial capacity. When such a plea is raised in defence the question will have to be gone into and decided on the facts of each case. No straight jacket formula can be laid down to decide the financial status of the landlord before an application for release is to be allowed. It will depend upon the nature and extent of the business sought to be carried out. It is not necessary in every case that the landlord must start some business from the very inception at a large scale. He can start his business according to his financial status and may subsequently expand it. It is for these reasons that I am of the view that no straight jacket formula can be laid down to decide the financial status of the landlord before an application for release is to be allowed and the question has to be decided, if raised by the tenant, on the facts of each case. 6. It is for these reasons that I am of the view that no straight jacket formula can be laid down to decide the financial status of the landlord before an application for release is to be allowed and the question has to be decided, if raised by the tenant, on the facts of each case. 6. Coming to the facts of the instant case it may be pointed out that a copy of the written statement filed by respondent No. 3 before the prescribed authority has been attached as Annexure-2 to the writ petition. Its perusal indicates that nowhere any such plea has been raised by respondent No. 3 that the petitioner did not have the necessary financial status to establish a medicine shop. On the other hand, as already seen above, the landlord has produced some material before this Court indicating that he has the necessary financial status. It is not for this Court to go into the evidentiary value about the material which has been placed before this Court under Article 226 of the Constitution. Suffice it to say that it does not appear that in the absence of a pleading in the written statement that the petitioner did not have the necessary financial status the petitioner was prejudiced in the sense that he could not produce the necessary material in this behalf before the Prescribed Authority or before respondent No. 1. The findings recorded by respondent No. 1 that the need of the petitioner was not pressing consequently cannot be sustained. 7. Coming to the question of comparative hardship it has been urged by counsel for respondent No. 3 that the petitioner was the owner of some other shops and he has not established as to why did he choose the respondent No. 3 for making an application for release in preference to the other tenants. So for as this submission is concerned, suffice it to point out that, as has been held by a Division Bench of this Court in Mangal Sen v. Additional District Judge, 1977 (U.P) RCC 122 where the landlord has other tenants in other accommodation the choice is of the landlord as to which accommodation he needs. So for as this submission is concerned, suffice it to point out that, as has been held by a Division Bench of this Court in Mangal Sen v. Additional District Judge, 1977 (U.P) RCC 122 where the landlord has other tenants in other accommodation the choice is of the landlord as to which accommodation he needs. In M/s. B.S. Ltd. v. Vishwa Nath, 1977 AWC 607 it was held that if the landlord prefers to evict one tenant instead of the other tenant, the tenant against whom eviction is sought cannot take the plea that the landlord should have proceeded against the other tenant. Reverting to the discussion on this point in the order of respondent No. 1, it would be seen that the plea raised by the petitioner that respondent No. 3 was during the pendency of the proceedings under Section 21 of the Act in a position to get vacant possession over a shop in mohalla Gandhi Nagar has been repelled on two grounds : (i) that there was no material on the record to indicate that the petitioner had been able to obtain possession over the said shop; and (ii) that there were no cloth shops in mohalla Gandhi Nagar excepting one. So far as the first ground on which the aforesaid plea has been rejected, it may be pointed out that a suit had been instituted by the petitioner and others for ejectment of the tenant occupying the Gandhi Nagar shop which was decreed by the trial Court. The appeal filed by the tenant was dismissed by the District Judge and even the second appeal filed by the tenant was dismissed by the Court on 23rd January, 1979, as is apparent from a copy of the judgment dated 23rd January, 1979 filed as Annexure 6 to the writ petition. The operative portion of the order of this Court dated 23rd January, 1979 indicates that the tenant was granted three months time to vacate the premises in question. That time expired long ago and really it was for respondent No. 3 to satisfy respondent No. 1 as to why possession has still not been taken over the said shop. The operative portion of the order of this Court dated 23rd January, 1979 indicates that the tenant was granted three months time to vacate the premises in question. That time expired long ago and really it was for respondent No. 3 to satisfy respondent No. 1 as to why possession has still not been taken over the said shop. The petitioner certainly could not produce any material to indicate the reason as to why respondent No. 3 had not chosen to take delivery of possession over the said shop notwithstanding the second appeal having been dismissed on 23rd January, 1979 and the three months time granted for vacating the shop having expired long ago. At any rate, no impediment has been brought to my notice in the execution of the decree and it notwithstanding the aforesaid decree the respondent No. 3 still did not choose to take delivery of possession over the shop, this circumstances could not be used against the petitioner by respondent No. 1. As regards the second ground no finding has been recorded by respondent No. 1 that the Gandhi Nagar is not in a market area or that it is not suitable for carrying on cloth shop. Simply because there were not enough number of cloth shops in that locality was no ground to ignore the existence of the said shop particularly when respondent No. 1 has not recorded any finding that the area and the locality where the shop in dispute is situated was one where there were a large number of cloth shops. 8. Counsel for respondent No. 3 has emphasised that the shop of Gandhi Nagar was not a shop but a godown. Firstly, the plea of the petitioner that respondent No. 3 has an alternative shop, has been repelled not on this ground. Secondly, it is not the nomenclature alone which is relevant. There was nothing to prohibit a person from using an accommodation which may be best suited for carrying on a shop only as a godown. The respondent No. 1 has not applied his mind to this aspect of the matter also. The finding of respondent No. 1 on the question of comparative hardship also cannot, therefore, be sustained. 9. Counsel for respondent No. 3 placed reliance on Smt. Lilawati v. Vth Additional District and Sessions Judge, 1979 All. The respondent No. 1 has not applied his mind to this aspect of the matter also. The finding of respondent No. 1 on the question of comparative hardship also cannot, therefore, be sustained. 9. Counsel for respondent No. 3 placed reliance on Smt. Lilawati v. Vth Additional District and Sessions Judge, 1979 All. Rent Cases 39, in support of his contention that merely because respondent No. 3 was possessed of an alternative accommodation the need of the petitioner could not be held to be bonafide. In my opinion, Smt. Lilawati's case cannot be pressed in service so far as the fact of the instant case are concerned inasmuch as the petitioner is not basing his claim that his need was bonafide only on the ground that respondent No. 3 was possessed of an alternative accommodation. His need, as already indicated above, is based on the circumstance that his son had obtained diploma in Pharmacy and the shop in question was needed by him for carrying on business of selling medicine. 10. Reliance was then placed on Ram Swarup Gupta v. IInd Additional District Judge, 1978 All. Rent Cases 385. In my opinion, that case also is of no assistance to respondent No. 3. In that case an application for release, made by the landlord, had been dismissed by the Additional District Judge on the ground that he had an alternative accommodation. The order of the Additional District Judge was quashed by this Court and it was held that before coming to the conclusion that the need of the landlord was bonafide on the aforesaid ground several points as indicated therein had to be taken into consideration and that the fact that some accommodation was already at the disposal of the landlord was per se not sufficient to hold that his need was not bonafide. That was not a case where the effect of an alternative accommodation being at the disposal of the tenant was considered. On the other hand Rule 16(2)(b) of the Rules framed under the Act provides that where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss, there shall be greater justification for allowing a release application. On the other hand Rule 16(2)(b) of the Rules framed under the Act provides that where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss, there shall be greater justification for allowing a release application. Indeed, on the other conditions being made out an application for release can be allowed even if the tenant has no alternative accommodation at all to which he can shift his business. In Bega Begum v. Adbul Ahad Khan, AIR 1979 Supreme Court 272, while dealing with an analogous provision under the Jammu and Kashmir Houses and Rent Control Act, 1966, it was held that the circumstance that if the tenant is required to vacate, he will be thrown on the streets will alone not be sufficient to non-suit the landlord because this would be so almost in every case where a decree for eviction is passed. 11. M.M. Ayasim v. Manohar Lal Sharma, AIR 1981 Supreme Court 1113 the other case cited by counsel for respondent No. 3 was as a case where even though the landlord was in vacant possession of another accommodation, he insisted on the eviction of a tenant on the ground of his bonafide need and it was asserted on behalf of the landlord that he had unfettered right to choose whatever premises he wants. This plea was not accepted. It is not in the instant case, inasmuch as it is not the case of respondent No. 3 that the petitioner had already a vacant shop in his possession and is still trying to evict him. 12. Reliance was then placed by counsel for respondent No. 3 on Bhaichand Ratanshi v. Laxmishanker Tribhavan, 1981(2) SCC 502. It was held in that case that both the parties must lead evidence in support of their respective case on the question of comparative hardship. On its basis it was urged that the burden was on the petitioner also to establish that he will be put to greater hardship if the application for release was not allowed. No exception can be taken to the legal proposition. In the instant case, however, it would be seen that the case of the petitioner was that his son was unemployed. He had obtained a diploma in Pharmacy and wanted to carry on business of selling medicine in the shop in question to earn his livelihood. No exception can be taken to the legal proposition. In the instant case, however, it would be seen that the case of the petitioner was that his son was unemployed. He had obtained a diploma in Pharmacy and wanted to carry on business of selling medicine in the shop in question to earn his livelihood. The petitioner produced evidence also in support of this case. It is, as such not a case of lack of pleading or proof on the part of the petitioner on the question of comparative hardship. Whether the case of the petitioner or of respondent No. 3 deserves to be accepted on this question is to be decided by the fact finding authority and I express no opinion of the merits of the case of either party on this point. 13. Lastly reliance was placed by counsel for respondent No. 3 on Jalil Ahmad v. IV Additional District Judge, Farrukhabad, 1980 ALJ 419 wherein it was held that where the tenant had from his grandfather's time been carrying on business in selling kites and vending ice in summer reason and there was no alternative accommodation to shift to, the provision under Rule 16(2)(a) could not have been held set off by reason that the career of two unemployed sons of the landlord was mere important and that the landlord's existing shop provided meagre income and was insufficient to accommodate the business of the sons. So far as the position in law is concerned, no exception can be taken to the proposition that Rule 16(2)(a) has to be given due weight. The facts of that case, however, are clearly distinguishable from the facts of the instant case. Here unlike the case of Jalil Ahmad (supra) the petitioner has no existing shop wherein any business is being carried on. On the other hand in the instant case, according to the petitioner-respondent No. 3 has an alternative shop to which he can shift namely, the shop in Gandhi Nagar. What would be the effect of the existence of that shop on the question of determining the question of comparative hardship is a matter to be decided by respondent No. 1. 14. What would be the effect of the existence of that shop on the question of determining the question of comparative hardship is a matter to be decided by respondent No. 1. 14. In the result the petition succeeds and is allowed and the impugned order dated 10th August, 1979, passed by respondent No. 1 is quashed and he is directed to decide the appeal filed by the petitioner afresh in accordance with law keeping in mind the observation made above. Since the application for release was made several years back in the year 1977, respondent No. 1 will decide the appeal as expeditiously as possible. In the circumstances of the case, however, the parties shall bear their own costs.