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1996 Supreme(MP) 80
1996 JLJ 386
Tej Shankar, J.
Krishan Kumar Baori v. Ganga Prasad Singhi
C. Revn. No. 494 of 1994; Decided on 16.1.1996.
Ramji Sharma for applicant; P.D. Agarwal for non-applicant.
Headnote:(1) Accommodation Control Act, 1961 (M.P.) - S.23-E -- revisional powers under -- finding of fact or mixed question of fact and law cannot be disturbed.
Specific finding of fact and mixed question of fact and law, to my mind, cannot be disturbed while exercising revisional powers more-or less in the nature of appeal. In other words, reappraisal of evidence cannot be said to be included within the revisional powers. Had the Legislature intended so, it would have made a specific provision for an appeal, but in its wisdom it has not done so. Consequently, it has to be taken that powers conferred under section 23-E are shorter than that of appellate Court. 1991 MPRCJ 148 and 1989 MPRCJ NOC 14 referred to. [Para 5
(2) Accommodation Control Act, 1961 (M.P.) -- S. 23-J (iv) -- "physically handicapped person" -- means a person who cannot pursue his normal course of life -- it is upon the applicant to establish his handicappedness by cogent evidence.
The words ‘physically handicapped‘ occurring in section 23-J (iv) mean that a person claiming himself to be within the meaning of words ‘physically handicapped‘ must be such a person suffering from a disease which may prevent him from following ordinary daily pursuits of his life.
It is true that a person may be sound in health apparently, but he may be suffering from such a disease, which may prevent him from pursuing his ordinary daily pursuits, but it is for the person claiming himself to be handicapped to establish by cogent and convincing evidence that he is suffering from such disease that he cannot pursue his normal course of life. Unless it is established, he cannot get benefit and cannot be said to be a ‘physically handicapped‘ person as contemplated under section 23-J (iv). 1986 MPRCJ 158, 1988 (I) MPWN 154 and AIR 1987 Kar. 158 relied on. [Para 6
(3) Accommodation Control Act, 1961 (M.P.) -- S.23-J (iv) -- person suffering urinary trouble -- able to pursue his normal course of life -- not a physically handicapped person. [Para 9
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 23&M-&ds v/khu iqujh{k.k ‘kfDr & rF; vFkok rF; vkSj fof/k ds fefJr ç‘u dk fu"d"kZ fo{kqC/k ugha fd;k tk ldrkA
iqujh{k.k ‘kfDr;ksa dk ç;ksx djrs le;] rF; rFkk rF; vkSj fof/k ds fefJr ç‘u dk fofufnZ"V fu"d"kZ] esjs fopkj ds vuqlkj] U;wukf/kd vihy dh çÑR;kuqlkj] fo{kqC/k ugha fd;k tk ldrkA vU; ‘‘kCnksa esa] lk{; dk iquewZY;kadu iqujh{k.k ‘kfDr;ksa esa lfEefyr gksuk ugha dgk tk ldrkA vU; ‘‘kCnksa esa] Lkk{; dk iquewZY;kadu iqujh{k.k ‘kfDr;ksa esa lfEefyr gksuk ugha dgk tk ldrkA ;fn fo/kku eaMy dk oSlk vk‘k; gksrk] mlus vihy ds fy, fofufnZ"V mica/k fd;k gksrk fdarq viuh çKk esa mlus ,slk ugha fd;k gSA ifj.kke Lo:i] ;g ekuuk gksxk fd /kkjk 23&M- ds v/khu çnÙk ‘kfDr;k¡ vihy U;k;ky; ls U;wu gSaA 1991 ,e ih vkj lh ts 148 rFkk 1989 ,e ih vkj lh ts ,u vks lh 14 fufnZ"VA ¿iSjk 5
¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 23&´ ¼pkj½ & ^^fodykax O;fDr** & vFkZ gS] O;fDr tks vius thou ds lkekU; vuqØe dk fuokZg ugha dj ldrk & viuh fodykaxrk rdZlaxr lk{; }kjk LFkkfir djus dk Hkkj vkosnd ij gSA
/kkjk 23&´ ¼pkj½ esa vkus okys ‘‘kCn ^^fodykax** vFkZ gS fd ^^fodykax** ds vFkk±rxZr gksus dk nkok djus okyk O;fDr ,slk O;fDr gksuk pkfg, ftls ,slh O;kf/k gks ftlls og thou ds nSuafnu lkekU; dk;Z u dj ldsA
;g lR; gS fd ns[kus esa mldk LokLFk; mÙke gks fdarq og ,slh O;kf/k ls xzflr gks ftlls og thou ds nSuafnu lkekU; dk;Z ugha dj ikrk gks] fdarq ;g Hkkj Lo;a dks fodykax gksus dk nkok djus okys O;fDr ij gS fd og rdZlaxr vkSj çR;k;d lk{; }kjk LFkkfir djs fd og ,slh O;kf/k ls xzLr gS fd og thou ds nSuafnu lkekU; dkedkt ugha dj ldrkA ;fn ;g LFkkfir ugha fd;k tkrk] rd og Qk;nk ugha ys ldrk vkSj /kkjk 23&´ ¼pkj½ esa ;Fkk vuq/;kr ^^fodykax** O;fDr ugha dgk tk ldrkA 1986 ,e ih vkj lh ts 158] 1988 ¼1½ e-ç- ohDyh uksV~l 154 rFkk , vkb vkj 1987 dukZVd 158 voyafcrA ¿iSjk 6
¼3½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 23&´ ¼pkj½&ew= laca/kh O;kf/k ls ihfM+r O;fDr thou ds nSuafnu lkekU; dk;Z djus esa leFkZ & fodykax O;fDr ugha gSA ¿iSjk 9
1. This revision petition is directed against the order dated 9.6.1994 passed by Rent Controlling Authority, Gwalior.
2. The petitioner moved an application before the Rent Controlling Authority, Gwalior under section 23-Aof the M.P. Accommodation Control Act, 1961 (hereinafter called 'the Act' for short), claiming himself to be a handicapped person. The learned Rent Controlling Authority after considering the entire material on record concluded that the petitioner could not establish that he was a handicapped person; His petition was not maintainable and the Court had no jurisdiction to entertain the same by impugned order dated 9.6.1994. Against the order, the petitioner has preferred this revision petition.
3. Learned counsel for the revisionist contended that it has been established on record that the petitioner has been suffering from urinary trouble and he could not pass urine normally and as such he is a handicap person within the meaning of section 23 J (iv) of the Act. Learned Rent Controlling Authority committed error in holding otherwise. On the other hand, it has been urged that the evidence on record does not establish that the petitioner is a handicapped person. He is fit and attends to his normal work. Learned counsel also pointed out that the petitioner was present at the time of arguments in the Court.
4. Thus, the only point that calls for determination in this petition is as to whether the petitioner is handicapped person or not within the meaning of section 23 J (iv). Learned Rent Controlling Authority held that the petitioner is not a handicapped person on the basis of evidence discussed by it. It must be kept in mind that the findings of fact or mixed findings of fact and law are not subject to revisional interference. Learned counsel for the revisionist urged that the powers of revision conferred upon this Court under section 23-E are wider than the powers under section 115 CPC. In this connection he placed reliance upon Raichand Jain v. Miss Chandra Kanta Kholsa (1991 MPRCJ 148) and Chittu Khan v. Smt. Kalawati Bai Bhargava (1989 MPRCJ NOC 14).
5. After considering the aforesaid two authorities and the provisions of section 23-E, I am of the opinion that in view of specific provision made in section 23-E to the effect that "the High Court shall, as far as may be, exercise the same powers and follow the same procedure as it does for disposal of a revision under section 115 of the Code of Civil Procedure 1908, as if any such proceedings of the Rent Controlling Authority is of a Court subordinate to such High Court." In the teeth of these specific words, the contention does not appear to be correct that the powers of this Court exercised in revision under section 23 E are wider. However, in view of the aforesaid authorities, even if it is taken that the powers are wider, though I have my own reservations, in that case too specific finding of fact and mixed question of fact and law, to my mind, cannot be disturbed while exercising revisional powers more-or-less in the nature of appeal. In other words, reappraisal of evidence cannot be said to be included within the revisional powers. Had the Legislature intended so it would have made a specific provision for an appeal, but in its wisdom it has not done so. Consequently, it has to be taken that powers conferred under section 23-E are shorter than that of appellate Court. I am, therefore, of the view that after the Rent Controlling Authority has given a categorical finding with respect to the fact as to whether the petitioner is or is not a handicapped person it cannot be interferred with in exercise of revisional jurisdiction.
6. Assuming for the sake of argument that it can be seen, I proceed to determine as to whether the petitioner can be said to be a handicapped person or not within the meaning of words' 'physically handicapped person" occurring in section 23-J. The words "physically handicapped person" have not been defined anywhere in the Act. These wo
