H.S. Bedi vs Smt. Dhani Devi and Another

R.S. Pathak, C.J.—This is a tenant''s revision petition u/s 15(4) of the East Punjab Urban Rent Restriction Act, 1949, arising, out of proceedings for his eviction at the instance of the landlady.

The premises Shop No. 50 on The Mall in Simla was let out by the Respondent Smt. Dhani Devi to Krishan Kumar about two decades ago. It consists of a ground floor and a first floor. Krishan Kumar, it appears, let out the first floor to the Petitioner H.S. Bedi. Smt. Dhani Devi applied for ejectment of both Krishan Kumar and Bedi, the ground being that the premises had been sub-let to Bedi without her consent. On, December 12, 1963, the petition was dismissed. Thereafter, in 1967, Smt. Dhani Devi filed another petition this time for the eviction of Bedi alone. The petition was founded on the ground that she required the accommodation for her bona fide personal use. The petition was resisted by Bedi on two rounds, firstly, that the tenancy could not be split up and, secondly, that Smt. Dhani Devi did not require the accommodation for her own use. The Controller who tried the petition took the view that it was not open to Smt. Dhani Devi to split up the tenancy and maintain the petition on that basis. Accordingly, he rejected the petition. The appellate authority, who heard an appeal against the order, endorsed the view taken by the Controller. Smt. Dhani Devi then applied in revision to this Court, and the Court held that on the facts and circumstances of the case it could not be said that the tenancy had been split up. Accordingly, it remanded the case to the Controller for decision on the merits. That decision has since been reported as Dhani Devi v. Krishan Kumar and Ors. 1971 RCR 919.

When the petition, thereafter, came on for trial before the Controller, Bedi applied for amendment of his reply to the eviction petition, and the amendment being allowed he inserted the pleas that his ejectment could not be permitted because it was a "scheduled building", and further that there was no relationship of landlord and tenant between Smt. Dhani Devi and himself. The plea that the accommodation constituted a "scheduled building" rested on the assertion that Bedi was engaged in Homoeopathic practice in the accommodation. The Controller negatived the plea that the accommodation could be described as a "schedule building" and granted relief to Smt. Dhani Devi on the eviction petition. He held that she required the accommodation for her bona fide personal use. An appeal before the Appellate Authority has been dismissed.

In this revision petition by Bedi, Learned Counsel for the Petitioner points out that an application was made before the Appellate Authority by Bedi on December 19,1976, for permission to bring on the record a photostat copy of a certificate issued by the Premier Homoeopathic Medical College, Chandigarh, certifying that Bedi had joined and completed the prescribed course of the College in recognition of which the M.B.B.S. (Homoco) Diploma was granted. The Petitioner is aggrieved by the circumstance that the appeal was disposed of by the Appellate authority without consideration of this application. The grievance seems to be justified. The application was made when the appeal was pending, and it was for the Appellate Authority to dispose of the application. Whether the application should have been allowed or rejected was a matter for the appellate authority to determine. It appears that when disposing of the appeal the Appellate Authority lost sight of the fact that the application was still pending on the record and had not been disposed of. However, in. this revision petition it is open to me to consider the application Now, the application is accompanied by a photostat copy of the certificate, and it recites that it was not possible for Bedi to file the certificate at the time when his statement was recorded by the Controller because it had been misplaced. That allegation of fact is not supported by any proof. The Petitioner should have filed an affidavit or adduced other proof verifying the allegation. It is contended by Learned Counsel that the Appellate Authority was obliged to call on the Petitioner to file an affidavit and he should have done so. To my mind, the submission proceeds on a misconception. The application was made by the Petitioner for relief in his favour, and it was for the Petitioner to show that there was substance in the allegations contained therein. It was open to the Appellate Authority to reject the application outright in the absence of any proof in support of it. Indeed, it was not necessary for it even to issue notice to the Respondent to show cause against the grant of the relief claimed in the application. It is incorrect to say that a duty is cast on the Appellate Authority to call for proof. In the absence of any proof in support of the application, I am compelled to reject it.

However, for the purpose of this revision petition it may be assumed that the Petitioner was granted the Diploma mentioned above. The question is whether that circumstance, taken with the other material on the record, entitles the Petitioner to protection from eviction on the ground that the accommodation occupied by him could be described as a "scheduled building". Section 2(a) describes the expression "building" as a building or part of a building let for any purpose. Section 2(d) defines a "nonresidential building" as a building being used solely for the purpose of business or trade. Section 2(g) defines the expression "residential building" to mean any building which is not a nonresidential building. Section 2(h) defines the expression "scheduled building" to mean a residential building which is being used by a person engaged in one or more of the professions specified in the scheduled to this Act, partly for his business and partly for his residence. The schedule to the Act enumerates the professions for that purpose, and one of the entries mentions "medical practitioners, including practitioners of indigenous systems of medicine." It is beyond dispute that a medical practitioner practising Homoeopathy would be engaged in a profession contemplated within the schedule entry. The point to consider is whether on the facts and circumstances of this case it can be said that Bedi was "engaged" in the profession of practising Homoeopathy in this building. Admittedly, Bedi is a Government official employed in the office of the Accountant General, Himachal Pradesh at Simla. According to him, he carries on the profession of practising Homoeopathy during the hours in the morning before he leaves for his office and thereafter in the evening on his return from the office. Three witnesses have been produced in support of his case that he is engaged in the practice of Homoeopathy. All three testify to having been prescribed Homoeopathic medicine by him. In the opinion of the Controller and the Appellate Authority the evidence does not succeed in making out that Bedi is engaged in practising Homoeopathy. In my opinion, the Controller and the Appellate Authority are right in the view taken by them. To establish that a person is engaged in a particular profession, it is necessary to show the existence of those essential elements which constitute the structure of such professional activity. There should be evidence of the setting up of the profession, evidence of a regularity in attending to its duties, and evidence of a preoccupation with it which excludes the element of casual activity. It is not possible to enumerate specifically the several circumstances which go to indicate that a person is "engaged" in a profession. The indicia will vary with the nature of the profession. What is necessary is an over-all impression derived from those circumstances that the person is carrying on the particular profession. A casual occupation in the activity is insufficient for proving that he is engaged in the profession. In the present case all that we have on the record is evidence that a few persons, apparently three in number, were treated by the Petitioner. One of them, Dr. Surjeet Kaur, has testified that she saw a number of persons sitting in the room for the purpose of treatment by the Petitioner, but the allegation being vague cannot be relied on. The essential structure of professional activity is not made out by the evidence, and for that reason the petition must fail. Accordingly, I affirm the finding of the Appellate Authority and the Controller that the Petitioner has not succeeded in establishing that he is engaged in the medical profession, and that therefore the accommodation can be described as a "scheduled building".

There was some argument before me on the question whether the eviction petition could be maintained u/s 13(3)(a)(i) of the East Punjab Urban Rent Restriction Act. It is urged by Learned Counsel for the Petitioner that that provision does not apply to a "scheduled building" and reliance is placed on Durga Dass v. Devi Das Nayar (1961) PLR 640. The validity of that decision has been disputed by Learned Counsel for Smt. Dhani Devi. As I have found that the accommodation cannot be described as a "scheduled building", I consider it unnecessary to enter into this controversy.

It is also urged on behalf of the Petitioner that the Controller erred in omitting to strike an issue on the question whether Smt. Dhani Devi and Bedi stood in the relationship of landlord and tenant. No grievance was made of that omission by the Petitioner before the Appellate Authority. The issue is one involve in facts, and I do not consider it right to permit the point to be raised at this stage.

The last contention of Learned Counsel for the Petitioner is that the finding of the Appellate Authority and the Controller that Smt. Dhani Devi required the accommodation bona fied for her personal use is erroneous. I have taken through the evidence on the record by Learned Counsel, but I am not satisfied that the findings of the Controller and the Appellate Authority are vitiated. The material is sufficient to disclose that she in-tended to settle down in Simla having regard to the poor state of medical facilities available to her in the village where she stayed, and which it appears is situated at an appreciable distance from the city of Jawalamuhki. The finding that she requires the accommodation bonafied for her personal use is a finding of fact and when both the Controller and Appellate Authority have concurred in reaching that finding I see no sufficient reason to disturb it.

The petition fails and is dismissed, but in the circumstances there is no order as to costs.

Two weeks are allowed to the Petitioner to vacate the accommodation. No further time can be allowed inasmuch as the litigation has been a protracted one and has been pending ever since 1967.