@JUDGMENTTAG-ORDER
Tej Shankar, J.@mdashThis 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 u/s 23A of 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 23J(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 u/s 23E are wider than the powers u/s 115 Code of Civil Procedure. 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 u/s 115 of the CPC 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 u/s 23 Eare 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 u/s 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 soke 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 words have been subjected to interpretation in several authorities of this Court. Learned Counsel for the revisionist placed reliance on Smt. Chuneela Kumari v. Karunashanker 1986 MPRCJ 158. In that case the Petitioner claimed herself to be suffering from cancer in his cheek, and the Court held that he was physically handicapped person. While considering the words the Court observed that there was no reason to give any restricted meaning to this phrase while equating it with only in orthopaedic deformity like maiming of a limb etc. A mentally disabled person may be physically handicapped and so may be the person suffering from the disease of the kind which may prevent him from following the ordinary daily pursuit of his life, i.e. in this authority, the principle which appears to have been laid down by the Court is that a '' ''physically handicapped person" may be a person who suffers from a disease which may prevent him from pursuing ordinary daily pursuit of his life. There is yet Anr. decision of this Court reported in 1988 (I) MPWN 154 (Satulal v. Mandal Abhlyanta Telegraph). In this case the Court took into consideration the meaning of the word ''handicap'' given in different dictionaries. The learned Judge has quoted the meaning as follows:
(1) ''handicapped'':- (i) crippled or physically disabled
(ii) mentally deficient;
(iii) (of a constant) marked by; being under, or having a handicap person;
- The Random House Dictionary of the English language -(The unabridged Edn.)
(2) ''handicap''- a disadvantage that makes achievement unusually difficult. esp. a physical disability that limits the capacity to work.
- Wabester''s Third New International Dictionary -(The unabridged Edn.)
(3) ''handicap''-- a person specifically children physically or mentally . defecitive.
- A Supplement to the Oxford English Dictionary (Vol. 12)
After considering the dictionary meaning, it was held that the words contemplated to have the effect of reducing considerably such person''s capacity for normal work and engaging in gainful employment. It was also observed that the word ''handicap'' must mean something more than mere claim of being a physically handicapped person. It was necessary to establish and satisfy the Court with regard to the nature and extent of his disablement or handicappedness and also to show as to how it has a material bearing on the need propounded by him. Learned Counsel for the revisionist placed much reliance upon the decision of the Kernataka High Court reported in AIR 1987 Kar 158 (Suresh K. Bhat v. University of Mangalore) wherein the words "physically handicapped" occuring in Mangalore University Regulations are interpreted. It was observed therein that the concept of ''physically handicapped'' is generally understood is a physical impairment or disability in vital organ of a human body. The orthopaedically handicapped have defects that are caused by a deformity in or interference with normal functionings of the bones, muscles or joints The condition may be congenital or acquired due to accident or disease. A person is said to be physically handicapped when he suffers from deformity akin to those disabilities. Thus, after carefully considering all the aforesaid authorities it becomes crystal clear that 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 as held in Smt. Chuneela Kumari''s case and other authorities mentioned above. Of course, 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 u/s 23-J (iv).
7. Having discussed the meaning of the words ''physically handicapped'', it has to be seen as to what evidence has been adduced in the case in hand, to establish that the Petitioner is a ''physically handicapped person''. If we peruse the petition itself, we find that in paragraph 3 he has alleged that he is a physically handicapped person. Nothing was pleaded originally as to what was the ailment. However by way of amendment, he alleged that his urinary-track was deformed and he had a fracture of right leg hence he could not move. It will not be out of place to mention here that during the course of arguments, learned Counsel for the revisionist did not argue anything about fracture. He only urged that the Petitioner is physically handicapped because he has urinary ailment. In this connection we have to look to the evidence of the Petitioner. Anchor-sheet of the Petitioner is Ex. P-1-A. It purports to be a certificate given by Dr. J.S. Chhabra, Surgeon J. A. Hospitals, Gwalior. The ailment mentioned in this document is that the Petitioner is unable to pass urin normally due to atonic bladder since 23.5.85 and he is for reason is physically handicapped and unable to take stress and strains of life like a normal man. It is important to mention that Dr. J.S. Chhabra has not appeared in the witness box to depose as to how the Petitioner could be said to be physically handicapped, if he is unable to pass urine normally because the ailment mentioned by him in the certificate is to that effect. One Dr. S.B. Mundhara has been examined to prove this certificate. He stated that Krishna Kumar, the Petitioner is known to him, since when the applicant was admitted by Dr. Chhabra in J.A. Hospitals, Gwalior and he was present there. In his cross-examination he stated that the Petitioner had capable limbs. To quote his own words, he deposed:
HATH PAIR SE YAHA SAKSHAM HAL PESHAB KI BIMARI KE ALAWA ANYA SHARIR SWASTHA HAI
This witness has specifically stated that apart from urinary ailment he is fit to do his business. His statement does not show that he is not capable of pursing his normal course of life on account of urinal ailment.
8. Now, if we peruse the statement of the Petitioner himself, we find that he stated that in natural way he does not urinate and for this he has to use catheter after 5 or 6 hours. This, according to him is the only ailment from which he is suffering, i.e. he has to use catheter after 5 or 6 hours for urinating. The Petitioner again deposed on 9.1.91 that his limbs were working properly. He can climb the stair but cannot run. He can drive the car. He had burning sensation in urin and besides it there was no other ailment. Thus, his own statement clearly shows that besides this he has no ailment. In this view of the matter, it can hardly be said that he is unable to pursue his ordinary course of business on account of this urinal trouble. He himself has stated that he used catheter after 5 or 6 hours. Thus, it can hardly be said that he is a handicapped person.
9. Respondent has also examined one Dr. R.K. Jain, Hospital Officer Birla Public Hospital, Pilani Rajasthan. He claimed himself to be M.S. Surgery having passed M.B.B.S. in 1976 and M.S. in 1980. He deposed that the ailment mentioned in Ex. P-1-A was curable. Such a person could not be said to be physically handicapped. Learned Counsel for the revisionist challenged the statement of this witness on the ground that he did not bring his certificates. No doubt, he did not bring his certificates but he has stated on oath that he is M.S. (Surgery) and as such his testimony in this regard cannot be disputed. Merely because he did not bring his certificates with him. He is a respectable person and if the revisionist challenged it he could produce certificates. Even if for the sake of arguments it is taken that his statement is not worth considering in that case too the statement of the Petitioner as well as the certificate Ex. P-1-A do not go to show as said above that the Petitioner is not in a position to pursue his normal course of business on account of his urinary trouble. He was present in this Court also on the date of hearing as pointed out by the learned Counsel for the Respondent.
10. Thus, taking into consideration the totality of facts and circumstances I find no infirmity in the findings arrived at by the learned Rent Controlling Authority to the effect that the Petitioner has failed to prove that he is physically handicapped person. Consequently, I find no merit in this petition. The petition is accordingly dismissed with costs.
