Hon’ble S.U. Khan, J.—This writ petition arises out of eviction/release proceedings initiated by landlord-respondent No. 3 which is described as “Intzamiya Committee Wakf Masjid Peer Bux Kanpur through its President” against original petitioner-tenant Chhotelal Dixit, since deceased and survived by legal representatives. The release application was filed under Section 21 of U.P. Act No. 13 of 1972 and was registered as Rent Case No. 626 of 1977 on the file of Prescribed Authority/First Additional Civil Judge, Kanpur. Petitioner was tenant in one room in the shape of Hall on the ground floor on monthly rent of Rupees 6 and paisa 25. On the first floor Masjid Peer Bux is situate. According to para 3 of the release application the mosque is Wakf Al Al Khair (charitable Wakf). In para 3 it is mentioned that it is public charitable trust. (Mere description is not conclusive). In the release application it was further stated that in order to fulfil the objects of the Wakf premises in dispute was required i.e. for making arrangement for imparting muslim religious education. Prescribed Authority through judgment and order dated 3.5.1982 allowed the release application. Against the said judgment and order original petitioner tenant filed Rent Appeal No. 178 of 1982. Second Additional District Judge, Kanpur through judgment and order dated 22.5.1984 dismissed the appeal. Hence this writ petition.

2. Both the Courts below held that the need of the landlord Wakif for establishing school for religious education was bona fide. Both the Courts below also found that there was sufficient alternative accommodation with the tenant where he was already running a Montessori school just in front of the accommodation in dispute and apart from that one house was owned by him and one house was owned by his wife. The contention of the tenant was that he was running a school in the building in dispute. On the basis of the Commissioner’s report Courts below found that the building in dispute was not being used for running school but it was kept locked and some desk and office material was stored therein.

3. I do not find least error in the finding of bona fide need and comparative hardship recorded by the Courts below. Even learned counsel for the tenant petitioner has not seriously challenged the said findings.

4. The main argument of the learned counsel for the petitioner is that release application was not maintainable in view of clause (i) of third proviso of Section 21 of U.P. Act No. 13 of 1972. The said proviso is quoted below :

“Provided also that no application under clause (a) shall be entertained—

(i) for the purposes of a charitable trust, the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste, or place of birth;”

5. Wakf under Muslim law is not a trust, even if it is for charitable purposes. Section (1) of Trusts Act 1982 expressly provides that nothing contained in the said Act shall affect the rules of Mahomedan Law as to Wakfs. Under para 173 of Mulla’s Principles of Mahomedan Law (Nineteenth Edition), it is provided that except for the purposes of Section 92, C.P.C. Wakf is not trust and that unlike the case of a trustee in English Law, Mutwalli of Wakf is only manager of the Wakf but the property does not vest in him. It has further been provided under aforesaid para 173 that there is no prohibition in Muslim law to create a charitable trust as in English law.

6. Under U.P. Act No. 13 of 1972 itself, distinction has been drawn between public charitable or public religious Institution [Section 2(1) (bb)] and building belonging to Wakf including a Wakf alal aulad [Section 2 (1) (bbb)]. Under Section 3(r) “charitable institution” is defined as an establishment, undertakin, organization or association formed for a charitable purpose and includes a specific endowment. Under Section 3(s) ‘religious institution’ is defined as temple, Math, mosque, Church, Gurudwara or any other place f