JUDGMENT N.D. Ojha, J. - Respondents 2 and 3 Dr. Mrs. Farhat Durrani and Dr. Abrar Ahmad filed an application under Section 21(1)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (herein after referred to as the Act) against the petitioners for release of a house occupied by them on the ground that they bona fide needed the said house for their own use. The application was contested by the petitioners and was dismissed by the Prescribed Authority but no appeal by respondents 2 and 3 it has been allowed by the III Additional District Judge, Varansi respondents No. 1. It is this order of respondent No. 1 which is sought to be quashed in the present writ petition. 2. Before dealing with the submissions made by counsel for the petitioners it would be necessary to give certain relevant facts. The house in respect of which the aforesaid application for release was filed is house No. D-41/1 Mohalla Ramapura, Varanasi. It belonged to Amir Mohammad, father of Dr. Abrar Ahmad, respondent No. 3, Respondent No. 2 Dr. Mrs. Farhat Durrani is a medical practitioner and is the wife of Dr. Abrar Ahmad respondent No. 3, who in his turn is Reader in the Department of Management Studies in the Venaras Hindu University. Amir Mohammad executed a registered deed of waqf-alal-aulad on 20.9.1954 in respect of the aforesaid house and appointed his eldest son Anwar Ahmad as its mutwalli reversing the right to remove the mutawalli in case he renounced Indian citizenship and settled abroad and to appoint another mutawalli thereof. Anwar Ahmad subsequently left India permanently and by a subsequent registered deed dated 3.11.1971 Amir Mohammad removed Anwar Ahmad from mutwalli-ship and appointed himself as mutawalli. He also nominated respondents 2 and 3 as co-mutawallis of the said waqf after his death. Amir Mohammad subsequently died and respondents 2 and 3 became the co-mutwallis of the aforesaid waqf-alal-aulad. The house in question was let out to petitioner No. 1 Messrs Goldfilled Mercantile Co. which carries on business of manufacturing glass beads and immitation ion pearls having its head office at Bombay. Amir Mohammad subsequently died and respondents 2 and 3 became the co-mutwallis of the aforesaid waqf-alal-aulad. The house in question was let out to petitioner No. 1 Messrs Goldfilled Mercantile Co. which carries on business of manufacturing glass beads and immitation ion pearls having its head office at Bombay. In the house in question petitioner No. 1 does not carry on any manufacturing process but uses it for maintaining its office, keeping raw materials for distribution to workers and for collecting glass beads from labourers and dispatching them to its head office at Bombay. Petitioner No. 2 is the local manager of petitioner No. 1 and resides in a portion of the house in question. 3. Respondents 2 and 3 have been residing in house No. D-37/40, Baradeo, Varanasi, which belongs to Dr. Abrar Ahmad, respondent No. 3. In a portion of this residential house respondent No. 2, who is a medical practitioner, as stated above, is carrying on her practice as consultant in gynocology, obstatries and paediatrics. Her case was that on the request of the Lions Club she also renders two hours free service every day in her clinic aforesaid for general check-up of children below five years and administers to them immunisation vaccines against tetanus, polio, diptheria, tuberculosis and whooping cough etc. These vaccines are supplied by Lions Club for welfare of infants free of cost. The case of respondents 2 and 3 was that they intend to open a maternity nursing home-cum-infant immunisation centre in the house in question and for this purpose they bona fide needed it. Their case further was that the petitioners have also taken on rent six other accommodation in Varansi for carrying on their business aforesaid and that they will not be put to any loss or inconvenience if the application for release was allowed. Their case further was that so far as they are concerned they have no other accommodation except the house in question where maternity nursing home-cum-immunisation centre could be opened. 4. Their case further was that so far as they are concerned they have no other accommodation except the house in question where maternity nursing home-cum-immunisation centre could be opened. 4. The application for release was contested by the petitioners inter alia on the grounds that in pursuance of the waqf deed under which respondents 2 and 3 were mutwallis they were entitled only either to reside in the house in question or to let it out od rent and that they were not entitled to use it for carrying on any business such as opening a maternity nursing home-cum-immunisation centre. They also asserted that at all events that portion of the residential house No. D 37/40 Baradeo, Varanasi, which respondent No. 2 was using as her clinic was sufficient even for the purpose of opening a maternity nursing home-cum immunisation centre and their need was not at all bona fide. Their case further was that since a portion of the house in question was being used by respondent No. 2 for residential purpose it could not be released for carrying on business in view of the bar created by the third proviso to Section 21 of the Act. Lastly their case was that the application for release was liable to be dismissed inasmuch as the petitioner would be put to greater hardship on the said application being allowed than the hardship likely to be caused to respondents 2 and 3 on the said application being dismissed. 5. As already pointed out above the application for release was dismissed by the Prescribed Authority but has been allowed by the Additional District Judge, respondent No. 1. 5. As already pointed out above the application for release was dismissed by the Prescribed Authority but has been allowed by the Additional District Judge, respondent No. 1. It has been held by respondent No. 1 that there was nothing in the waqf deed which could preclude respondents 2 and 3 from getting the house in question released in their favour for purposes of carrying on maternity nursing home-cum-immunisation centre, that even though a portion of the house in question was being used by petitioner No. 2 for residential purposes be was using it only because he happens to be the local manager of petitioner No. 1 and consequently the dominant purpose for which the house in question was held by the petitioners was the purpose or carrying on business and user of a portion thereof for residential purposes by petitioner No. 2 as the local manager of petitioner No. 1 was only an ancillary purpose and as such the third proviso to Section 21 of the Act was not attracted. Respondent No. 1 has further held that even though the need of respondents 2 and 3 for opening an infant immunisation centre was not bona fide inasmuch as they had sufficient accommodation for this purpose in their residential house No. D-37/40 Baradeo Varanasi, their need for opening a maternity nursing home, however, was bona fide. On the question of comparative hardship also respondent No. 1 has held in favour of landlord respondents 2 and 3. 6. It was urged by counsel for the petitioners that respondents 2 and 3 in their capacity of co-mutwallis were only entitled to use the house in question either for residential purposes or to let it but and they were not entitled to use it for carrying on any business. Reliance was placed on a decision of the Supreme Court in Siddique Fatima v. Mahmood Hasan, AIR 1978 Supreme Court 1362, where it was held that a mutwalli of waqf although not a trustee in the true sense of the term is still bound by the various obligations of a trustee. He like a trustee or a person standing in a fiduciary capacity, cannot advance his own interests or the interests of his relations by virtue of the position held by him. He like a trustee or a person standing in a fiduciary capacity, cannot advance his own interests or the interests of his relations by virtue of the position held by him. The use of the funds of the waqf for acquisition of a property by a mutwalli in the name of his wife would amount to a breach of trust and the property so acquired would be treated as waqf property. In my opinion the observations made in Siddique Fatima's case (supra) referred to above and relied on by counsel for the petitioners do not in any way disentitle respondents 2 and 3 from getting the house in question released for purposes of opening the maternity nursing home for which purpose need has been found to be bona fide by respondent No. 1. A copy of the waqf deed has been filed along with the writ petition as Annexure 4. Paragraphs 5 and 9 of the said deed are relevant for deciding the point in issue. Paragraph 5 permits the mutwalli to either reside in the house in question to let it out and after paying taxes and carrying on repairs and meeting other expenses mentioned in the deed utilise the balance of the rent received for his own use (Bakia Apne Tahat wa Tasarruf Me Lawe). Paragraph 9 inter alia permits the mutwalli to reside in the house in question and be benefitted by it (Mustafeed Ho Sakta Hai). in Gopal and another v. II Additional District Judge and others (1980) U.P. 2 R.C.C.531. while interpreting almost a similar waqf deed it was held : "Having thus cleared the position that in a case of a-waqf Alal- Aulad, the children are the beneficiaries, I come to the question whether respondent 3 and other beneficiaries had been excluded from residing in the disputed property themselves and the only right conferred upon them was to enjoy its income. A copy of the waqf deed has been filed along with the rejoinder. Having considered the deed, I am unable to accept the submission. The waqf had been created for the benefit of the children. Their rights had not been confined to enjoy the profits alone. The right given was to enjoy the property in any manner that the beneficiaries desired. Unrestricted right to use the property included the right to live therein. Having considered the deed, I am unable to accept the submission. The waqf had been created for the benefit of the children. Their rights had not been confined to enjoy the profits alone. The right given was to enjoy the property in any manner that the beneficiaries desired. Unrestricted right to use the property included the right to live therein. Accordingly, it is not correct to say that the deed did not intend to confer anything more than the right to receive maintenance and support from the income of the waqf properties. When the settlor used the word "Mustfid" in deed, he certainly intended the beneficiaries to enjoy exclusievely in any manner. The right to use the properties has not been restricted to letting out. Accordingly, the submission of the learned counsel that the respondent 3 could not file the application since the proprietary right had not been conferred is not acceptable." This is the view which has been taken in the impugned order by respondent No. 1 also and I am of opinion that it does not suffer either from any manifest error of law or error of jurisdiction so as to justify interference in a writ petition. 7. It was then urged by counsel for the petitioners that since a portion of the accommodation in question was being used by petitioner No. 2 for residential purposes the application for release at least in regard to that portion for carrying on business was not maintainable in view of the third proviso to Section 21 of the Act. I find myself unable to agree with this submission either. As seen above the finding recorded by the Additional District Judge in this behalf is that the dominant purpose for which the house in question was held by the petitioners was the purpose of carrying on business by petitioner No. 1 and the user of a portion of the house in question by petitioner No. 2 in his capacity as local manager of petitioner No. I was an ancillary purpose. Counsel for the petitioners urged that use of the accommodation was no conclusive test to determine whether the said accommodation was residential or commercial. Reliance was placed on Busching Schmitz v. Menghani, AIR 1977 Supreme Court 1569. Counsel for the petitioners urged that use of the accommodation was no conclusive test to determine whether the said accommodation was residential or commercial. Reliance was placed on Busching Schmitz v. Menghani, AIR 1977 Supreme Court 1569. In this connection it may be pointed out that the Additional District Judge in holding the house in question to be commercial building has not treated the use thereof as the conclusive test but after taking into consideration various circumstances including the admission of the petitioners applied to "dominant purpose" rule. That in cases where part of an accommodation is being used for business purpose and another part for residential purpose the test for determining the nature of the building is to find out the dominant purpose for which it is being held, is a proposition of law which seems to be settled. If authority were needed for this proposition reference may be made to Prem Chand v. District Judge, 1977 All. R.C. 117 (S.C.) Dr. Basiruddin v. District Judges, 1978 All.R.C. 62 (D.B.). Chunulal v. District Judge, 1978 All.R.C. 483. Dr. Pritam Kaur v. Additional District Judge, Dehradun and others, 1980 All.R.C. 207. and Kanti Kishore v. Kali Prasad Asthana, 1982 A.W.C. 638 (D.B.) At this place it may be pointed out that in recording the finding that the dominant purpose for which the house in question was held by the petitioners was carrying on business, respondent No. 1 has, apart from considering that the main purpose for which the said house had been taken on rent was to carry on business of petitioner No. 1 and a portion of it was used for residential purpose by petitioner No. 2 only in his capacity as local manager to supervise the business of petitioner No. 1 and other relevant circumstances, placed reliance even on an admission made by the petitioners in their reply to a notice sent by the landlord-respondents. 8. In view of the foregoing discussion I do not find any error even in this finding of respondent No. 1 that the dominant purpose for which the house in question was held by the petitioners was to carry on business and that the third proviso to Section 21 of the Act was not attracted and for this reason I find it difficult to accept the submission made by counsel for the petitioners in this behalf. 9. 9. Counsel for the petitioners then urged that the purpose for which the house in question was sought to be released, namely, opening of a maternity nursing home-cum-infant immunisation centre was a single and indivisible purpose and it was not open to the Additional District Judge to hold that even though the need of respondents 2 and 3 for opening an infant immunisation centre was not bonafide it was still bonafide for a opening a maternity nursing home. In my opinion there is no substance in this submission either. In holding that the need of respondents 2 and 3 opening an infant immunisation centre was not bonafide the Additional District Judge, as seen above, his taken the view that the portion of the residential house of respondents 2 and 3 which was being used by respondent No. 2 for purposes of her clinic was sufficient for opening an infant immunisation centre. In regard to the need of respondents 2 and 3 for opening a maternity nursing home, however, respondent No. 1 has held that the accommodation at the disposal of respondents 2 and 3 in their residential house was not at all sufficient and suitable. For coming to this conclusion respondent No. 1 has given various reasons which I do not consider necessary to repeat. In view of those reasons it was open to respondent No. 1 to record a finding that the need of respondents 2 and 3 was bonafide for opening a maternity nursing home. 10. Counsel for the petitioners then urged that the need for which respondents 2 and 3 wanted the house in question to be released was not their personal need but was for public purpose and the application for release was consequently not maintainable. In support of this submission reliance has been placed on paragraph 10 of the application for release a copy whereof has been filed as Annexure 6 to the writ petition. This paragraph reads : "That the applicants have explained to the opposite parties the need of such a Maternity and Infant Immunisation service in that area and requested them to vacate the aforesaid premises to enable them to utilise the said accommodation in the larger public interest but they refused to vacate the same." Emphasis has been placed on the words "in the larger public interest" used in paragraph 10 aforesaid. I find no substance in this submission either. I find no substance in this submission either. What paragraph 10 of the application for release means is that if a maternity nursing home-cum-infant immunisation centre was opened by respondents 1 and 3 in the house in question the members of the public will be benefitted by it. This paragraph obviously cannot be interpreted to mean that respondents 2 and 3 were not at all to be benefitted by the opening of the said centre. Simply because patients are benefitted by their treatment at a private nursing home it cannot be said that opening of a private nursing home is for public purpose and no personal interest of the person opening the nursing home is served. 11. It was then urged that the findings recorded by respondent No. 1 that the need of respondents 2 and 3 was bona fide and that the likely hardship to respondents 2 and 3 from the refusal of the release application would far-out weigh the hardship that may be experienced by the petitioners from the grant of the application for release are erroneous. Relying on Precision Steel & Engineering Works v. Prem Deva, AIR 1982 Supreme Court 1518. it was urged that an application for release of an accommodation could be allowed only if the need of the landlord was genuine and bona fide and could not be allowed merely to satisfy a fanciful desire of an affluent landlord to occupy the said accommodation. Suffice it to say so far as this submission is concerned that the finding recorded in this behalf by respondent No. 1 clearly indicates that the application for release had been made by respondents 2 and 3 to satisfy any fanciful desire to occupy the house in question but to meet their need which was genuine and bona fide. A perusal of the impugned order indicates that these findings have been recorded on an appraisal of the evidence produced by the parties and are essentially findings of facts. They cannot be challenged in a writ petition. Reference in this connection may be made to Mattu Lal v. Radhey Lal, AIR 1974 Supreme Court 1596. India Pine Fitting & Co. v. Fakruddin, AIR 1974 Supreme Court 1059. P.B. Desai v. C.M. Patel AIR 1974 Supreme Court 1059. and Munilal v. Prescribed Authority. AIR 1978 Supreme Court 29. They cannot be challenged in a writ petition. Reference in this connection may be made to Mattu Lal v. Radhey Lal, AIR 1974 Supreme Court 1596. India Pine Fitting & Co. v. Fakruddin, AIR 1974 Supreme Court 1059. P.B. Desai v. C.M. Patel AIR 1974 Supreme Court 1059. and Munilal v. Prescribed Authority. AIR 1978 Supreme Court 29. In my opinion the finding recorded by the Additional District Judge that the need of respondents 2 and 3 was bona fide and the finding on the question of comparative hardship also do not suffer from any such error which may justify, interference in the present writ petition. 12. Lastly it was urged by counsel for the petitioners that the ground floor of the house in question was taken on rent initially for purposes of business of petitioner No. 1 and the rent of the house was taken subsequently for purpose of residence of petitioner No. 2 and they constitute distinct accommodation. In support of this submission reliance was sought to be placed on a certificate said to have been granted by the Rent Control and Eviction Officer to the effect that a portion of the house in question was allotted for residential purpose and also on certain rent receipt for the residential portion. Firstly, in view of the admission by the petitioners in their reply to the notice sent by the landlord-respondents on which reliance has been placed by the Additional District Judge, as already pointed out above, which admission has not been explained away or proved to be erroneous it is not now open to the petitioners to set up a new case that the ground floor was let out to petitioner No. 1 and the remaining portion to petitioner No. 2. Secondly, paragraph 5 of the copy of the application for release (Annexure 6 to the writ petition) contains a clear averment that it was petitioner No. 1 who was the tenant of the house in question on a monthly rent of Rs. 250/-. Annexure 7 to the writ petition is copy of the written objection filed on behalf of the petitioners. Paragraph 7 of this objection contains the reply to paragraph 5 of the application for release. 250/-. Annexure 7 to the writ petition is copy of the written objection filed on behalf of the petitioners. Paragraph 7 of this objection contains the reply to paragraph 5 of the application for release. It has nowhere been stated in this paragraph that petitioner No. 1 was the tenant of the ground floor alone of the house in question and that petitioner No. 2 was the allottee of the remaining portion of the said house. On the other hand paragraph 7 indicates that petitioner No. 1 alone was the tenant of the entire house in question. Thirdly, the alleged certificate of the Rent Control. and Eviction Officer and the rent receipts were not filed either before the Prescribed Authority or before the Additional District Judge and are sought to be filed for the first time in the present writ petition. There is no satisfactory explanation whatsoever as to why these documents could not be filed before the Prescribed Authority or before the Additional District Judge. For these reasons the petitioners are not entitled to raise this ground for the first time in the present writ petition and seek the quashing of the impugned order on the said ground. 13. No other point has been pressed. 14. In the result I find no merit in this writ petition. It is accordingly dismissed with costs. The petitioners are, however, granted one month's time to vacate the house in question.