Karnataka High Court
Manjula D/O. Veerappa Chindi vs Nil on 19 November, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
M.F.A.No.102386 OF 2018 (MH)
BETWEEN
1. MANJULA D/O. VEERAPPA CHINDI,
AGE:46 YEARS, OCC:NIL,
REPRESENTED BY HER GUARDIAN BROTHER,
BASAVARAJ S/O. VEERAPPA CHINDI,
AGE:34 YEARS, OCC:PRIVATE SERVICE,
R/O. GULEDGUDD, TAL:GULEDGUDD,
DIST: BAGALKOT.
2. BASAVARAJ S/O. VEERAPPA CHINDI,
AGE:34 YEARS, OCC:PRIVATE SERVICE,
R/O. GULEDGUDD, TAL:GULEDGUDD,
DIST:BAGALKOT.
... APPELLANTS
(BY SRI. S. C. HIREMATH, ADVOCATE)
AND
NIL
... RESPONDENT
THIS MFA IS FILED UNDER SECTION 76 OF THE
MENTAL HEALTH ACT, 1987, AGAINST THE ORDER DATED
21.04.2018, PASSED IN G & W NO.19/2018, ON THE FILE OF
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
BAGALKOT, DISMISSING THE PETITION FILED UNDER
SECTION 53 OF THE MENTAL HEALTH ACT, 1987.
:2:
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the appellant No.1, who is said to be mentally ill-person and incapable of taking care of herself, represented by appellant No.2, who is said to be the natural brother of the appellant No.1.
2. Heard the learned counsel appearing for appellants.
3. As per the appeal averments, after the death of the father of appellant No.1 on 19.12.2015, appellant No.2 is looking after the appellant No.1. Appellant No.1 is 85% mentally disabled woman suffering from Moderate Mental Retardation. It is further submitted that the father of appellant No.1 was working as a Primary School Teacher and was getting pension. It is further submitted that other sisters of appellant No.1 are married and living separately. As the appellant No.1 :3: is not capable of managing herself with day-to-day affairs, she is wholly depending upon appellant No.2. Appellant No.2 needs a financial support to meet out her regular treatment of mental illness and some monitory assistance is required. In that light, he requires some amount and in order to obtain the amount of pension, it is necessary for him to obtain permission of the Court.
4. It is further submitted that the application came to be filed under Section 53 of the Mental Health Act, 1987 (hereinafter referred to as "the Act" for short). But the learned District Judge has erroneously dismissed the application under the impression that the said application has been filed under the Guardian and Wards Act. Since no respondent has been made as a party, the learned Principal District and Sessions Judge, Bagalkot has not appreciated the said facts properly and has erroneously dismissed the application. Hence, the present appeal is filed.
:4:
5. I have carefully and cautiously gone through the submissions made by the learned counsel for the appellants and perused the order passed by the learned Principal District and Sessions Judge, Bagalkot.
6. It is an admitted fact that as per the order dated 21.04.2018, the 2nd appellant had filed an application under Section 53 of the Act seeking to appoint him as a guardian for mentally retarded appellant No.1. As could be seen from the records, the learned Principal District and Sessions Judge, Bagalkot has observed that the said petition has been filed under the Guardian and Wards Act and the appellant had sought to made over the said petition to the Court of Senior Civil Judge, Badami and the said Court is not having any jurisdiction. Under the said impression, the said application was dismissed as not maintainable.
7. For the sake of brevity, I quote Sections 53 and 54 of the Act, which reads as under:- :5:
"53. Appointment of guardian of mentally ill person. - (1) Where the mentally ill person is incapable of taking care of himself, the District Court or, where a direction has been issued under sub-section (2) of section 54, the Collector of the District, may appoint any suitable person to be his guardian.
(2) In the discharge of his functions under sub-section (1), the Collector shall be subject to the supervision and control of the State Government or of any authority appointed by it in that behalf.
54. Appointment of manager for management of property of mentally ill person
- (1) Where the property of the mentally ill person who is incapable of managing it is such as can be taken charge of by a Court of Wards under any law for the time being in force, the District Court shall authorize the court of Wards to take charge of such property, and thereupon notwithstanding anything contained in such law, the Court of :6: Wards shall assume the management of such property in accordance with that law.
(2) Where the property of the mentally ill person consists in whole or in part of land or of any interest in land which cannot be taken charge of by the Court of Wards, the District Court may, after obtaining the consent of the Collector of the District in which the land is situate, direct the Collector to take charge of the person and such part of the property or interest therein of the mentally ill person as cannot be taken charge of by the Court of Wards.
(3) Where the management of the property of the mentally ill person cannot be entrusted to the Court of Wards or to the collector under sub-section (1) or sub-section (2), as the case may be, the District Court shall appoint any suitable person to be the manager of such property.
8. By going through the said provisions of law, it makes very clear that where an application has been filed under Section 53 of the Act, the District Court or :7: where a direction has been issued under sub-section (2) of Section 54 of the Act, the Collector of the District may appoint any suitable person to be his guardian. Instead of exercising the power by the Court itself, the said application has been dismissed as not maintainable under the wrong impression that the said application has been filed under the Guardian and Wards Act, though the application was filed under Section 53 of the Act, as submitted by the learned counsel for the appellants.
Even if I read Section 50 of the Act, referred by the Court below that an application has to be filed under the said Act seeking judicial inquisition, though the learned counsel appearing on behalf of the petitioners before the Court below has sought for transfer of the said petition to the Court of Senior Civil Judge, Badami that the said request could have been rejected and the learned Principal District Judge ought to have entertained the application, not doing so, has resulted :8: into miscarriage of justice. The impugned order is not in accordance with law and on facts.
In the light of the discussion held by me above, the impugned order dated 21.04.2018 is set aside and the matter is remanded back to jurisdictional court to reconsider and pass appropriate order in accordance with law.
Sd/-
JUDGE Yan/Rsh