JUDGMENT : RAKESH TIWARI, J. – Heard Counsel for the petitioner and perused the record. 2. The tenant-petitioner has filed this petition challenging the validity and correctness of the judgment and order dated 27.7.2004 passed by the Prescribed Authority/Civil Judge (S.D.), Kanpur Nagar in Rent case No. 124 of 1994, Sheelendra Rai Vidyarathi v. Jagdish Chandra Srivastava and others, as well as judgment and order dated 26.2.2011 passed by the appellate authority in Rent Appeal No. 64 of 2004, whereby application filed by the respondent-landlord for release of the accommodation under tenancy of the petitioner, has been allowed. 3. The petitioner is a tenant of the accommodation in question consisting of two rooms, two kotharies, Dalan, Courtyeard and latrine on the ground floor in premises No. 105/9, Prem Nagar, Kanpur Nagar owned by the respondent. 4. An application under section 21 (1) (a) of U.P. Act No. 13 of 1972, for release of the accommodation under tenancy of the petition€\r, was moved by the respondent on the ground that he is landlord of the accommodation in dispute wherein a "Shishu Vidyalaya" duly recognised up to class VIII, is being run by him on the first and second floor; that as the accommodation in possession of the landlord has become wholly inadequate, he needs the accommodation in question to satisfy basic requirements of the children and staff of the aforesaid school and that tenant Smt. Vidyawati Saxena (since deceased) has been allotted House No. E-223, Khandeypur colony by Kanpur Development Authority in the same municipal area. The tenant-petitioner contested the case by filing written statement. The parties adduced oral and documentary evidence in support of their respective cases. 5. The Prescribed Authority, after considering the evidence adduced by the parties and case laws cited by them, recorded findings of fact in favour of the landlord respondent and allowed the application vide impugned judgment and decree dated 27.7.2004. Rent Appeal No. 64 of 2004 filed by the tenant-petitioner, has also been dismissed affirming the findings recorded by the Prescribed Authority by the Additional District Judge, Court No. 13, Kanpur Nagar vide judgment and order dated 26.2.2011. 6. Rent Appeal No. 64 of 2004 filed by the tenant-petitioner, has also been dismissed affirming the findings recorded by the Prescribed Authority by the Additional District Judge, Court No. 13, Kanpur Nagar vide judgment and order dated 26.2.2011. 6. The judgment and orders impugned have been assailed mainly on the grounds that Courts below have failed to appreciate the fact that residential portion cannot be released for commercial purposes; that there was no evidence to establish the fact that house No. E-223, Khandeypur colany, Kanpur is under occupation of the petitioner; that Smt. Vidyawati (since deceased) had gifted aforesaid house No. E-223 to her grandson through a Will on 8.4.1993 whereas release application was filed after one and half year and that the landlord-respondent lives in a separate big house in Azad Nagar, Kanpur. 7. While dealing with the aforesaid points, the Courts below have found that there is no evidence on record on the basis of which it can be inferred that purpose of "Shishu Vidyalaya" run by the landlord is con mercial one. It may be stated here that every institution imparting education cannot be said to be a commercial establishment particularly when in Indian culture, running of school is also considered to be sacred and holy task like establishing a Dharmshala or a hospital. I am supported in my view by the decision of the Apex Court in Unni Krishnnan, J.P. and others v. State of Andhra Pradesh and others1, wherein in paragraph Nos. 197 and 198 of the judgment the Apex Court held thus : "197. We are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19 (1) (g). Trade or business normally connotes an activity carried' on with a profit motive. Education has never been commerce in this country. Imparting of education has never been treated as trade or business in this country since time immemorial. It has been treated as religious duty. It has been treated as charitable activity but never as trade or business. We agree with Gajendragadkar, J. that "education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words." "198. It has been treated as religious duty. It has been treated as charitable activity but never as trade or business. We agree with Gajendragadkar, J. that "education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words." "198. We are, therefore, of the opinion, adopting the line of reasoning in State of Bomay v. R.M.D. Chamarbaugwala, that imparting education cannot be treated as a trade or business. Education cannot be allowed to be converted into commerce nor can the petitioner seek to obtain the said result by relying upon the wider meaning of "occupation". 8. Further more the school is being run on the first and second floor of the premise from the very beginning in which the accommodation in dispute is situated on the ground floor. 9. As regards, house No. E-223 allotted to the tenant by the K.D.A. is concerned, it has been admitted by the tenant in the Courts below that aforesaid house is in the name of Smt. Vidyawati Saxena but a plea was taken that she had nominated her grandson Sri Gopal Saxena and gifted it to him through a will and he is in possession of that house. The Courts below have found that on this issue contradictory stand has been taken by the tenant. In the written statement, stand taken by the tenant was Smt. Vidyawati Saxena has nominated her grandson for the said house whereas in the affidavit, it was averred that she had executed a will in favour of her grandson in that regard. If may be pointed out here that alleged will was not brought on record in the Courts below. The Courts below on this issue concluded that onus is on the tenant to establish that aforesaid house No. E-223 was not in possession of the tenant who purchased it in vacant state while her tenancy in the accommodation in question continued but was in possession of the grandson Gopal Saxena, which he has miserably failed to discharge. 10. The Courts below on this issue concluded that onus is on the tenant to establish that aforesaid house No. E-223 was not in possession of the tenant who purchased it in vacant state while her tenancy in the accommodation in question continued but was in possession of the grandson Gopal Saxena, which he has miserably failed to discharge. 10. So far as the question that the landlord lives in a separate big house in Azad Nagar, Kanpur where he can run the Shishu Vidyalaya is concerned, the Courts below after considering the decisions cited by the parties, have rightly come to the conclusion that the landlord is the best judge to choose the place for his requirement and the tenant has no right to suggest and instruct the landlord as to how and where he should satisfy his requirements. 11. Since the tenant-petitioner has taken a plea that release application cannot be entertained as the residential accommodation is required for establishment of the Manager office of the school, chowkidar and for keeping rickshaw cycle, mini bus for carrying the children and for place of worship and entertainment of the students, therefore, burden is on the petitioner to prove affirmatively in view of under section 101 of the Evidence Act that landlord-respondent is carrying business. The Courts below have categorically recorded a finding that tenant-petitioner could not file any evidence to establish that the nature of the school is commercial while it is proved by the evidence produced by the landlord-respondent that school is recognized. 12. Explanation (1) to third proviso to section 21 (1) of U.P. Act No. 13 of 1972, provides thus: "Where the tenant or any member of his family (who has been normally residing with him or is wholly dependent on him), has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section, shall be entertained." 13. Applying the aforesaid statutory provision, the Courts below have rightly concluded that the tenant-petitioner has no right to oppose the release application moved by the landlord and his objection to the release application is not be entertained in view of Explanation (1) to third proviso to section 21 (1) of U.P. Act No. 13 of 1972. 14. Applying the aforesaid statutory provision, the Courts below have rightly concluded that the tenant-petitioner has no right to oppose the release application moved by the landlord and his objection to the release application is not be entertained in view of Explanation (1) to third proviso to section 21 (1) of U.P. Act No. 13 of 1972. 14. There being concurrent findings of fact recorded by the Courts below against the tenant-petitioner and no illegality or infirmity having been pointed out in the orders impugned, in the considered opinion of this Court, no ground is made out for interference in exercise of extraordinary powers under Article 226 of the Constitution of India. 15. For all the reasons stated above, the writ petition fails and is accordingly dismissed. No order as to cost. Petition Dismissed.