Smt. Chuneela Kumari vs Karunashanker

B.C. Varma, J.

This revision filed u/s 23-E of the Madhya Pradesh Accommodation Control Act. 1961 arises under these circumstances.

On 26-3-1964, the non-applicant'' landlord filed an application u/s 23-A(a) of the Aet claiming eviction of the applicant from the accommodation in question on the ground that it was required bona fide by him for his residence. After obtaining due leave to defend, the applicant filed her written statement on 26-6-1984. Some evidence was also recorded. Before she application could he finally decided, M. P. Accommodation Control (Amendment Ordinance, 1985 (No. 1 of 1985) was promulgated with effect from 16th day of January. 1985. This Ordinance later was superseded by M. P. Accommodation Control (Amendnlent) Act, 1985 (Act No. 7 of 1985) which came into force on 5-4-1985. The Ordinance and the Act inserted Section 23-J whereurder ''Landlord'' has been separately defined for the purpose of Chapter III-A which contains Sections 23 A to 23-J. By this substituted definition of ''landlord'' in Section 23-J the meaning attributed to that term earlier is restricted. Consequently, certain applications for ejectment of tenants pending on the file of the Rent Controlling Authority were withdrawn and sent to the new forum, viz., Civil Court for adjudication. The non-applicant/landlord in this present case, however, applied to the Rent Controlling Authority for continuance of the proceedings alleging that the authority still retained jurisdiction to hear and decide that application because he was a ''physically handicapped person'' as envisaged by Clause (iv) of Section 23-J. This application was opposed and it was asserted that on the face of it the application disclosed that it could not be entertained by that authority. By the impugned order, this contention has been rejected.

Clause 10 of the Ordinance 1 of 1985, which is more or less similar to Section 9 of Act No. 7 of 1985 is as follows :

"10. Transfer of pending application to Civil Court.-- An application filed by the landlord, other than that defined in Section 23-J to evict the tenant exclusively on the ground of "bona fide" requirement of accommodation u/s 23A of the Principal Act before the commencement before the Rent Controlling Authority shall on such commencement stand transferred to a civil court of competent jurisdiction and such court shall proceed to dispose of the same in accordance with the provisions of chapter III as if it were A plaint."

(This provision contemplates (i) pendency of an application before the Rent Controlling Authority for eviction of a tenant, (ii) the ground for eviction should be bona fide requirement of the accommodation u/s 23-A of the Principal Act, and (iii) that if the ''landlord'' filing such an application does not fall in any of the five categories mentioned in Section 23-J, as introduced by the Ordinance/ Act, then such an application shall stand transferred to the civil court of competent jurisdiction on the commencement of that Ordinance. The Rent Controlling Authority, therefore, will have no jurisdiction to deal with such application any further and shall cease to have jurisdiction over that application when it is filed by the landlord other than those defined in Section 23-J, as introduced by the Ordinance. The contention of the learned counsel for the applicant is that in order to ascertain whether or not an applicant is a landlord within the meaning of Clause 10 of the Ordinance, the averment in the application alone may be looked into and no inquiry of any kind is contempleted. In my opinion, the contention is not well founded. It may be appreciated that before the introduction of that Ordinance, the term ''landlord'' did not have any special attribute for the purposes of Chapter III-A. ''Landlord'' as defined in Section 2(b) of the Principal Act also governed those provisions. Any person claiming to be the landlord could have then maintained the action before the Rent Controlling Authority if the accommodation was bona fide required by him. It was, therefore, not necessary for him to make any averment of the kind which would now be necessary in view of the restricted definition of that term in Section 23-J Thus, when the definition of the term ''landlord'' was so amended for the purpose: of Chapter III-A by Section 23-J, in my opinion, it must be open for any landlord, both by amending pleadings and if controverted by introducing evidence, to show that his pending application must be continued before the Rent Controlling Authority as he would fall under one or more of the categories mentioned in Section 23-J. This would be so in order to determine a jurisdictional fact entitling the Rent Controlling Authority to retain jurisdiction. For this reason, I am not prepared to hold that a landlord in an application pending before the Rent Controlling Authority on the enforcement of the Ordinance cannot be allowed to demonstrate that he falls in any of the categories of the landlords mentioned in Section 23-J or for that purpose the averments in the application as originally filed alone must be looked into.

The terms of Clause 10 of the Ordinance -aforesaid show that it is by force of that provision that there is transfer of certain kind of applications pending before the Rent Controlling Authority to a Civil Court of competent jurisdiction which will treat those applications as if they were plaints. Such a transfer is automatic as Ls clear from the words "shall on such commencement stand transferred to a civil Court." It would mean that after the introduction of Clause 10 of the Ordinance, those applications by force of this provision shall be deemed to be on the file of civil court of competent jurisdiction as they shall "stand transferred". No judicial order by the Rent Controlling Authority in that behalf would be necessary. However, this would apply only to those cases of landlords which are outside the five catagories mentioned in Section 23-J. As a necessary'' corollary it must follow that the landlords who are within the ambit of Those five categories of Section 23-J are outside the Clause 10 of the Ordinance and applications filed by them and pending on the date of introduction of Ordinance remain wholly unaffected. This is clear from the words "application filed by the landlord other than those defined in Section 23-J". I am, therefore, of the opinion that the Rent Controlling Authority retains jurisdiction to deal with the pending applications filed for the purpose of ejecting the tenants on the grounds of bona fide requirement of the accommodation u/s 23-J of the Principal Act if the application is filed by a landlord falling in any of the categories mentioned in Section 23-J. I am also of the opinion that for that purpose it shall be open to the Rent Controlling Authority to determine whether the landlord in pending application falls within the ambit of any of the categories mentioned in Section 23-J and it shall be open for it to determine that fact by giving liberty to the parties to substantiate their contentions in that behalf.

In the present case, the non-applicant tried to establish before the Rent Controlling Authority that he was suffering from cancer in his cheek and this according to Shri D. M. Dharmadhikari, learned counsel for the non-applicant, brought him within the category of ''physically handicapped person'' mentioned in Clause (iv) of Section 23-J. Shri Ravish Agarwal, appearing for the applicant/tenant, on the other hand, contended that the non-applicant has well been treated for that disease, he can well speak and even appeared before the Court to give evidence. According to Shri Agarwal, such a person cannot be said to be ''physically handicapped'' for the purpose of Section 23-J(iv). The word ''handicapped'' as an, adjective means crippled or physically, disabled according to the Random House Dictionary and ''physically'' would mean pertaining to the body. Thus ''physically handicapped'' would mean disability arising out of some bodily infirmity. Used in this context it would mean a physical infirmity which creates a permanent disability and not merely a temporary injury for there may be injuries which may not disable a person. In my opinion, there is no reason to give any restricted meaning to this phrase ''physically handicapped person'' equating it with only an orthopaedic deformity like maiming of a limb etc. A mentally disabled person may also 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. A man suffering from malignancy in any part of his body may apparently not appear to be disabled in the sense of having lost any limb or any other faculty. He may be able to speak and be even capable of deposing in Court. That, however, will not mean that he is a man of sound health without any physical disability. Malignancy, in my opinion, is a physical disability as it has the tendency to reduce or impair functional capacity. Such a person must be held a ''physically handicaped, person'' within the meaning of Clause (iv) of Section 23-J. This contention raised on behalf of the applicant is, therefore, also rejected.

For the aforesaid reasons, I am of the opinion that the Rent Controlling Authority did have jurisdiction to retain the application filed by the non-applicant seeking applicant''s eviction and to inquire into and decide that application.

The revision, therefore; fails and is dismissed but without any order as to costs.