JUDGMENT RAKESH TIWARI, J. ( 1 ) HEARD learned Counsel for the parties. ( 2 ) PETITIONER is a tenant of shop No. 4 of Imambara No. 332, Rani Mandi, Allahabad at a monthly rent of Rs. 65/- per month. ( 3 ) SMT. Shirin Begum claiming herself to the owner and Mutawalli of the aforesaid Imambara, filed an application for release of the property in dispute for her son Mohd. Hasan who was alleged to be unemployed. ( 4 ) THE aforesaid application was contested by the petitioner asserting that since the premises in dispute was a Waqf property, it cannot be used for any personal gain of the Mutawalli and as such, she was not competent to file an application under section 21 (1) (a) of U. P. Act No. 13 of 1972. It was further asserted that Mohd. Hasan was already carrying on business with one Mohd. Talib in partnership at 329, Rani Mandi and he did not have any requirement of the premises in dispute. ( 5 ) THE Prescribed Authority by its order dated 13. 8. 1982 allowed the aforesaid application holding that the need of Mohd. Hasan was bona fide and further the petitioner would not suffer any hardship in case the aforesaid property was released in favour of the landlady as he was already in possession of another shop situated at 70, Rani Mandi, Allahabad. ( 6 ) AGGRIEVED by the aforesaid order dated 13. 8. 1982 passed by the Prescribed Authority, the petitioner preferred an appeal No. 615 of 1982 under section 22 of the Act. During the pendency of the appeal, an application was filed by the petitioner stating therein that Smt. Shirin Begum had filed a suit No. 135 of 1981 against one Zafar Raza who was a tenant of shop No. 5 which is adjacent to the disputed shop for arrears of rent and eviction. The aforesaid suit was decided in terms of a compromise dated 13. 5. 1983. ( 7 ) THE petitioner also filed an affidavit before the Appellate Court bringing the aforesaid facts into notice and further asserting that the said shop No. 5 has been subsequently let out to Dr. Abdul Hasan who was tenant of shop No. 6 from which fact it is established that her need was not bona fide and in the circumstances her need, if any, stood extinguished. Abdul Hasan who was tenant of shop No. 6 from which fact it is established that her need was not bona fide and in the circumstances her need, if any, stood extinguished. By the availability of the aforesaid shop, her son Mohd. Hasan who was allegedly unemployed on the relevant date could have been easily accommodated in the said shop. ( 8 ) THE petitioner also filed another affidavit before the Court below denying the assertion of Smt. Shirin Begum that her son Zaheer Hasan is doing any business in shop No. 5 and it was asserted that Dr. Abdul Hasan was carrying on business in the aforesaid shop No. 5 which has been let out to him after demolishing the partition wall between the two adjacent shops converting shop Nos. 5 and 6 into one single shop. ( 9 ) SMT. Shirin Begum filed her own affidavit before the Court below admitting delivery of possession of shop No. 5 to her but asserted that her another son Zaheer Hasan has entered into partnership with Dr. Abdul Hasan and he is carrying on business of selling medicines in the aforesaid shop No. 5. ( 10 ) IT was also asserted by her in paragraph 17 of the counter affidavit that the petitioner has purchased House No. 333, Rani Mandi situated adjacent to the building in which the shop in dispute is situated and has constructed five shops therein, out of which 3 shops have been let out by him to different persons. It was also averred that the petitioner has also shifted his business from the shop in dispute to the newly constructed shops in his aforesaid house and that he has sub let to one Channan the disputed shop who was running his business therein in the garp of tenancy of the petitioner. ( 11 ) IT is submitted that the Prescribed Authority has not considered the aforesaid question in its judgment and the argument has been referred in a cryptic manner in the judgment of the Appellate Court. ( 11 ) IT is submitted that the Prescribed Authority has not considered the aforesaid question in its judgment and the argument has been referred in a cryptic manner in the judgment of the Appellate Court. ( 12 ) IT is also submitted that the copy of the Waqf deed was not brought on record of the proceeding by Smt. Shirin Begum and in the absence there of could not have been determined the nature of the Waqf whether it was public or private and hence in the absence of waqf deed it would be deemed that it was meant for the benefit of the public at large and was a public waqf. It is stated that by creation of a Waqf, the Wakif dedicates the property to the Almighty in whom the ownership of the aforesaid property vests. A Mutawalli is merely a Manager of the waqf property, therefore, he neither has any proprietary right nor any beneficial interest of any kind in the said property being nothing more than a servant of the founder of the Waqf. ( 13 ) IT is stated that the need of Zaheer Hasan had never been set up by the landlady and in view of which she could not have handed over the possession of the aforesaid shop to him. The Court below has not applied its mind to the aforesaid aspect and has decided the question in a cryptic manner and submitted that the Prescribed Authority while deciding the release application has recorded incorrect finding to the effect that the petitioner was tenant of another shop No. 70, Rani Mandi, Allahabad and in view of which he would not suffer any hardship by the release of the disputed shop in favour of the landlady. The aforesaid finding recorded by the Prescribed Authority is based on no evidence whatsoever; that the petitioner had filed an affidavit before the Prescribed Authority stating therein that shop No. 70, Rani Mandi, Allahabad, was not in his occupation and it was actually under the tenancy of one Biradar Ali. He had also filed rent receipts in favour of Biradar Ali in respect of the aforesaid shop as such it is sufficiently established that shop No. 70, Rani Mandi was not available to the petitioner as the same was under the tenancy of another person but the aforesaid documents have been totally ignored by the Prescribed Authority. He had also filed rent receipts in favour of Biradar Ali in respect of the aforesaid shop as such it is sufficiently established that shop No. 70, Rani Mandi was not available to the petitioner as the same was under the tenancy of another person but the aforesaid documents have been totally ignored by the Prescribed Authority. The landlady has also not adduced any evidence in respect of shop No. 70, Rani Mandi, to establish that the petitioner was in possession of the aforesaid shop. Thus, the finding of the Prescribed Authority being based on no evidence and is liable to be ignored and the is also liable to be set aside. ( 14 ) THE Appellate Court also by its judgment dated 28. 10. 1994 dismissed the appeal of the petitioner. Aggrieved by the aforesaid order, petitioner has filed this writ petition. ( 15 ) LEARNED Counsel for petitioner submitted that an application under section 21 (1) of the Act No. 13 of 1972 could not have been filed by the Mutawalli of the Waqf for the benefit of her own son Mohd. Hasan. He relied upon the judgment in AIR 1963 SC 985 , AIR 1965 Alld. 333 and 1980 Alld. Law Reports SOC 9 in support of her above contention and as such, the Appellate Court also had no jurisdiction to decide the appeal under section 22 of the U. P. Act No. 13 of 1972. ( 16 ) THE contention of the learned Counsel for the petitioner is that the appeal was decided by the Appellate Court on 28. 10. 1994 on which date Ordinance No. 19 of 1994 had already been promulgated w. e. f. 26. 9. 1994 whereby section 2 (1) (bbb) was inserted and all buildings belonging to or vested in a Waqf including a Waqf Alal Aulad was exempted from the operation of the Act. It is stated that the aforesaid Ordinance was subsequently replaced by Act No. 5 of 1995 w. e. f. 15. 2. 1995 and thus, on the date the appeal was decided the provisions of Act No. 123 of 1972 were clearly not applicable to the building in question; that in view of the aforesaid facts the Appellate Court did not have any jurisdiction to decide the appeal under section 22 of the aforesaid Act. 2. 1995 and thus, on the date the appeal was decided the provisions of Act No. 123 of 1972 were clearly not applicable to the building in question; that in view of the aforesaid facts the Appellate Court did not have any jurisdiction to decide the appeal under section 22 of the aforesaid Act. ( 17 ) RELYING upon the judgment rendered in AIR 1995 SC 1781 , 1996 (1) ARC 348 and 1997 (1) ARC 17, he submits that the aforesaid amendment in the Act clearly affected the pending appeal before the Court below and although the protection given to the petitioner by virtue of Act No. 13 of 1972 was taken away but the only remedy available to the landlord was under the general law and no proceeding under Act No. 13 of 1972 could have been decided by the Appellate Court. ( 18 ) IT is urged that Appellate Court has not considered the question as to whether the shop No. 5 was in the tenancy of Dr. Abdul Hasan and as to whether the partition wall between shop Nos. 5 and 6 have been removed by him and converted into a single shop; that no finding has also been recorded to the effect as to whether Zaheer Hasan was actually carrying on business in shop No. 5 and in the absence of any such finding the impugned judgment cannot be sustained. ( 19 ) IT appears that the landlady during the pendency of the appeal by means of an affidavit asserted that the petitioner has purchased house No. 333, Rani Mandi in which he has constructed five shops out of which three shops has been let out by him to different persons and the petitioner has shifted his business from the disputed shop to his newly constructed shops and the disputed was presently in the occupation of one Channan as a sub-tenant. The petitioner had filed an affidavit before the Court below denying the aforesaid allegations and asserting that the petitioner has never shifted his business to his house No. 333, Rani Mandi and that he was still in occupation of the shop in dispute. The allegation that the aforesaid shop has been given to a sub-tenant was also denied. The petitioner had filed an affidavit before the Court below denying the aforesaid allegations and asserting that the petitioner has never shifted his business to his house No. 333, Rani Mandi and that he was still in occupation of the shop in dispute. The allegation that the aforesaid shop has been given to a sub-tenant was also denied. It was also asserted by the petitioner that Suit No. 422 of 1988, Salamat v. Syed Adab Ali, in respect of the disputed property was pending in the Civil Court. The. Appellate Court while deciding the appeal has recorded a finding that the petitioner has in one of his affidavits admitted that he was in possession of two shops situated at 333, Rani Mandi, Allahabad. ( 20 ) IT also appears from the affidavit filed in support of stay vacation application (hereinafter referred to as "affidavit") sworn on 17. 2. 2000 on behalf of respondents that the petitioner has shop No. 70, Rani Mandi at Allahabad, in his possession which has also been noticed in the judgment dated 13. 8. 1982 by the Prescribed Authority while allowing the release application. The petitioner filed appeal in 1982 concealing the fact of purchase of aforesaid house having shops through the rent appeal was rejected by the Appellate Court vide order dated 28. 10. 1994. ( 21 ) IN paragraph 3 of the affidavit, it has been averred that this writ petition has been filed by appending manipulated typed copy of the judgment omitting the admitted portion of his admission by the petitioner before the Prescribed Authority on false ground that the learned District Judge/special Judge has given wrong finding of having vacant shops in house No. 333, Rani Mandi, Allahabad of the petitioner. ( 22 ) IN paragraphs 6 and 7 also of the affidavit, the respondents have stated about the fraud played regarding omission of his admission before the Prescribed Authority and averred that he is enjoying the fruits of the shop in his possession in his House No. 333, Rani Mandi, Allahabad but is not releasing the shop in dispute. This fact according to the petitioner has been notated by his Lordship Yatindra Singh, ]. vide its order dated 26. 4. 1999. This fact according to the petitioner has been notated by his Lordship Yatindra Singh, ]. vide its order dated 26. 4. 1999. It is averred that His Lordship Yatindra Singh, J. took recognize of this fact and passed the following order:-"issued by O. P. (Paper No. 278) O. P. has admitted this fact in para 11 of his counter affidavit dated 287. 5. 82 (44-C) and has alleged that he has very small shop No, 70, Rani Mandi. Sd/-Yatindra Singh, J. 2. 4. 1999. " ( 23 ) IT appears from the record that Smt. Shirin Begum had filed the release application claiming herself to the owner as well as mutawalli of private Imambara situate in the part of the said premises No. 332, Rani Mandi, Allahabad i. e. in dual capacity. ( 24 ) AFTER hearing learned Counsel for the parties and perusal of record, I am of the considered opinion that the Prescribed Authority has rightly come to the conclusion that the need of landlord was the bona fide and genuine. Since the landlady has filed the release application in dual capacity i. e. as owner of the property as well as mutawalli of the aforesaid Imambara. The release application was maintainable at her behest as it was not filed only in the capacity of a mutawalli or Manager only. ( 25 ) AS an owner, the release application was filed by Smt. Shirin Begum was maintainable for establishing her son in business. On his own showing the petitioner had admitted himself as tenant of the landlady Smt. Shirin Begum and had been paying rent of the shop to her. Therefore, he cannot deny his conduct by which the relationship of landlord and tenant has been created and established between him and Smt. Shirin Begum as owner of the shop and he is estopped from denying the title of Smt. Shirin Begum or challenging her competency in the garb of her being Manager of the Imambara. The Court below therefore had jurisdiction to proceed under the U. P. Act No. 13 of 1972 as the amendment in section 2 (1) (bbb) would not apply. The Court below therefore had jurisdiction to proceed under the U. P. Act No. 13 of 1972 as the amendment in section 2 (1) (bbb) would not apply. ( 26 ) MOREOVER, the Imambara appears to be a private waqf for the benefit of the family of Smt. Shirin Begum and even in that capacity she had full right to seek release of the shop in question for the benefit of her son Mohd. Hasan, respondent No. 3. ( 27 ) THE son of the landlord Smt. Shirin Begum is even according to her own case is doing the partnership business with Dr. Abdul Hasan in shop No. 5. She has not objected to the removal of the wall between the two shops hence it is not open for the petitioner to raise any point regarding removal of the partition of the wall between shop Nos. 5 and 6 as it does not affects his relation or his rights as tenant of another shop in his dispute. ( 28 ) THE petitioner having acquired a shop No. 70, Rani Mandi, Allahabad, in the same locality where he carried his business also. The Courts below have rightly come to the conclusion that he will not suffer any hardship in the event of shifting his business there as these findings have not been challenged by the petitioner in appeal which is evident from perusal of the memo of appeal. The bona fide need of the landlady therefore cannot be challenged by him on the ground that she has already settled her another son in shop No. 5. Once the tenant had acquired the shop No. 70, Rani Mandi, Allahabad, having number of shops having been constructed by him where he was shifted his business, he cannot challenge either the bona fide need or comparative hardship for settlement of respondent No. 3, her son, by the landlady. ( 29 ) AS regards affidavit filed by the petitioner (Annexure-5 to the writ petition)suffice is to say that it was not filed when the leave of the Court for adducing the additional evidence hence it cannot be read in evidence. ( 30 ) MOREOVER, petitioner has also not denied the purchase of premises No. 333, Rani Mandi, Allahabad during the pendency of the case at the appellate stage, has not denied in his rejoinder affidavit. ( 30 ) MOREOVER, petitioner has also not denied the purchase of premises No. 333, Rani Mandi, Allahabad during the pendency of the case at the appellate stage, has not denied in his rejoinder affidavit. He might have residing in a portion thereof but he was carrying his business in the shop situate at 70, Rani Mandi, Allahabad, where he shifted his business and even otherwise could have shifted business in the remaining part of house No. 333 which is adjacent to the premises in dispute. ( 31 ) IT appears from the record that the petitioner has not produced in evidence in rebuttal of the contention of the landlady that he has constructed five shops in the premises No. 333, Rani Mandi, Allahabad out of which two shops were lying vacancy in his occupation. Whether wall has been demolished or not is irrelevant as it is established by the landlady for his son who is doing business in shop No. 5 in partnership of Dr. Abdul Hasan as such, even release of shop No. 5 where she had settled one of her son Mohd. Hasan will not extinguish her need as the need of other son for whom the release sought of the disputed shop survived. ( 32 ) IT appears from Annexure-4 of the counter affidavit that suit No. 442/1988, Salamat v. Syed Adab Ali , was neither instituted in the Court in Civil Judge, Allahabad nor is pending consideration. ( 33 ) APPELLATE Court has, therefore, rightly dismissed the appeal vide judgment and order dated 28th October, 1994. ( 34 ) AFTER considering the entire facts and evidence on record as the petitioner has got an alternate accommodation at his disposal and he would not suffer any loss in the event his shop in dispute and is therefore, is not entitled of any compensation under Rule 16 (2) (A) of the Act. ( 35 ) BOTH the Courts below have given concurrent finding of facts against the petitioner who also appears to be guilty of concealment of facts and making of false statement. He had himself admitted the fact that Smt. Shirin Begum was owner of the disputed premises as well as mutawalli of the Imambara situate in the part of the said premises. He had himself admitted the fact that Smt. Shirin Begum was owner of the disputed premises as well as mutawalli of the Imambara situate in the part of the said premises. ( 36 ) IN this view of the matter also the landlady had right to get release of the shop in question for the benefit of one of her son Mohd. Hasan, respondent No. 3, who was also the beneficiary of the waqf and having no concern with the Imambara was not a necessary party in the proceedings, the petitioner has not raised any such plea before the Courts below. ( 37 ) IN view of the Salem Bar Advocate Association v. Union of India and others, as the proceedings appear to be mala fide and petitioner has been harassing the landlord and reaping of the fruits of the shop under the tenancy though number of shops is available of his own and for filing manipulated and incorrect copies of judgments of the Courts below for extending the litigation and for obtaining interim order in the case by concealment of facts. ( 38 ) FOR the reasons stated above, the writ petition is accordingly dismissed with cost of Rs. 10,000/- on the petitioner which shall be paid to the respondents within one month. In case of default, the cost shall be recovered by the Court below in accordance with law as arrears of land revenue and shall be paid to the respondents forthwith. The petitioner shall hand over vacant and peaceful possession of the in dispute to the respondents within a period of fifteen days from today, otherwise the landlords/mutawalli would be free to move an application to the S. S. P. for getting possession of the accommodation in dispute from the tenant through assistance of police force if required. Petition Dismissed. .