Allahabad High Court
Vinay Kumar Sharma vs State Of U.P. And 2 Others on 21 December, 2021
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 40 Case :- WRIT - C No. - 26844 of 2021 Petitioner :- Vinay Kumar Sharma Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kunwar Tejandra Bahadur,Arvind Kumar Tripathi Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Vikram D. Chauhan,J.
(Per: Hon'ble Vikram D. Chauhan, J.)
1. The present writ petition has been filed by the petitioner for issuance of a direction to the District Magistrate, Bijnor to consider the application of the petitioner to issue a certificate in his favour pertaining to guardianship of his mentally and physically disabled brother namely, Sandeep Kumar Sharma.
2. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.
3. The counsel for the petitioner contends that the father of the petitioner, Late Ramesh Prasad Sharma had three sons, namely, Sandeep Kumar Sharma, Vinay Kumar Sharma and Ankit Kumar Sharma. It is further submitted that Shri Sandeep Kumar Sharma (brother of the petitioner) is 90% physically as well as mentally disabled and is aged about 37 years. In this regard, the counsel for the petitioner has also drawn attention to the disability certificate (Annexure 1 to this writ petition) issued by the Chief Medical Officer, Bijnor indicating that Sri Sandeep Kumar Sharma (brother of the petitioner) is mentally retarded. It is further contended by the petitioner that during the lifetime of the parents of the petitioner, Sri Sandeep Kumar Sharma was being looked after by the parents and after the death of the parents, no person has been appointed as the guardian of Sri Sandeep Kumar Sharma. It is the submission of the counsel for the petitioner that both the parents of Sri Sandeep Kumar Sharma has already expired. It has been specifically pointed out that the father of Sri Sandeep Kumar Sharma died on 8th October, 2008 and mother died on 6th March, 2001.
4. It is urged by the counsel for the petitioner that Sri Sandeep Kumar Sharma is the eldest son and is not married on account of his mental and physical disability, whereas the petitioner and his younger brother Ankit Kumar Sharma are married. It is also submitted that Sri Sandeep Kumar Sharma on account of his above-mentioned disability is not in a position to maintain and take care of himself and after the death of his parents, no guardian has been appointed under law. It is contended that the petitioner has to face various difficulties and hindrance on account of non-appointment of the Guardian in respect of Sri Sandeep Kumar Sharma in various aspects of the life including his medical care and property.
5. It is further urged by the counsel for the petitioner that earlier the petitioner filed an application under section 7 of the Guardians and Wards Act, 1890 before the court of Principal Judge, Family Court, Bijnor on 7th March, 2019 and the aforesaid case was registered as O.M. Case No 9 of 2019 (Vinay Kumar Sharma Vs. Ankit Kumar Sharma). It is further submitted by the counsel for the petitioner that the aforesaid application under section 7 of the Guardians and Wards Act, 1890 was preferred for appointment of the petitioner as Guardian of Sri Sandeep Kumar Sharma and in the aforesaid case on 27th August, 2019, written statement has been filed by Ankit Kumar Sharma, whereby no objection has been made for the appointment of the petitioner as Guardian of Sri Sandeep Kumar Sharma. Learned counsel for the petitioner further submits that the Principal Judge, Family Court, Bijnor on 22nd September, 2020 has dismissed the above-mentioned case of the petitioner on the ground that the aforesaid court has no power to appoint Guardian in respect of retarded person, who is major. It is urged by the counsel for the petitioner that a person can be appointed as Guardian under the Guardianship and Wards Act, 1890 in respect of minor and as such, the application of the petitioner under the aforesaid Act was held to be not maintainable. It is also submitted by the counsel for the petitioner that thereafter the petitioner has preferred an application dated 24th June, 2021 before the District Magistrate, Bijnor for issuance of a certificate of guardianship of Sri Sandeep Kumar Sharma in favour of the petitioner. It is further submitted that the petitioner has further on 12th July, 2021 again approached the District Magistrate, Bijnor for issuance of certificate in respect of guardianship of Shri Sandeep Kumar Sharma in favour of the petitioner. It is urged by the counsel for the petitioner that despite having approached the above-mentioned authority for issuance of the guardianship certificate in favour of the petitioner in respect of the person of Sri Sandeep Kumar Sharma, there exist complete inaction on the part of the District Magistrate, Bijnor to process the application of the petitioner and to issue the guardianship certificate in favour of the petitioner. Counsel for the petitioner further submits that in the aforesaid background, the petitioner has moved this Court by means of the present writ petition for issuance of the necessary direction to the District Magistrate, Bijnor.
6. Learned Standing Counsel has stated that although the Act No.44 of 1999 is applicable in the facts and circumstances of the case. However, the application preferred by the petitioner before the District Magistrate, Bijnor is not in accordance with the prescribed proforma as prescribed under the Rules of 2000 and as such, the application cannot be considered in the present form.
7. The application dated 24th June, 2021 and 12th July, 2021 preferred by the petitioner before the District Magistrate, Bijnor does not indicate the provision of law under which the aforesaid application has been preferred for issuance of certificate of guardianship in respect of Sri Sandeep Kumar Sharma. On a pointed query being made to the counsel for the petitioner as to the provision of law under which the aforesaid application has been preferred by the petitioner for issuance of guardianship certificate in favour of the petitioner in respect of Shri Sandeep Kumar Sharma, the counsel for the petitioner submitted that the aforesaid application will be referable to National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (hereinafter referred to as "Act No. 44 of 1999"). It is the submission of the counsel for the petitioner that Sri Sandeep Kumar Sharma is mentally retarded and in this respect certificate has already been issued by the Chief Medical Officer, Bijnor.
8. Before considering the case of the petitioner as stated in the writ petition, it is imperative that the scheme and statutory provision under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, is considered.
9. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 has been enacted by the Parliament with the object to provide for the constitution of a body at the National level for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities and for matters connected therewith or incidental thereto.
10. Under Section 2 of the above-mentioned Act No. 44 of 1999 various definitions has been provided in the context of the above-mentioned Act. The definition of various words under the aforesaid Act which are relevant for the purpose of present case are noticed herein below.
11. Under Section 2 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 provides the definition of "Autism", "cerebral palsy", "mental retardation", "multiple disabilities", "persons with disability" and the same is quoted here and below:-
"(a) "autism" means a condition of uneven skill development primarily affecting the communication and social abilities of a person, marked by repetitive and ritualistic behaviour"
Further, under section 2 (c) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 provides the definition of "cerebral palsy" and the same is quoted here and below :
(c) "cerebral palsy" means a group of non-progressive conditions of a person characterised by abnormal motor control and posture resulting from brain insult or injuries occurring in the pre-natal, perinatal or infant period of development
(g) "mental retardation" means a condition of arrested or incomplete development of mind of a person which is specially characterised by sub-normality of intelligence
(h) "multiple disabilities" means a combination of two or more disabilities as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996).
(j) "persons with disability" means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability."
12. Section 34 of the Act No. 44 of 1999 further provides for constitution of National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities, which shall be a body corporate by the aforesaid name and having perpetual succession and the common seal. 13. The aforesaid trust is established for the purposes of carrying out the objects of the act. The general superintendence, direction and management of the affairs and business of the above-mentioned trust is vested in the board constituted under Section 3 of the Act No. 44 of 1999.
14. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities is constituted with the objects as defined under Section 10 of the Act No. 44 of 1999. The provisions of Section 10 of the Act No. 44 of 1999 is quoted herein below:-
"10. Objects of Trust.--The objects of the Trust shall be--
(a) to enable and empower persons with disability to live as independently and as fully as possible within and as close to the community to which they belong;
(b) to strengthen facilities to provide support to persons with disability to live within their own families;
(c) to extend support to registered organisations to provide need based services during the period of crisis in the family of persons with disability;
(d) to deal with problems of persons with disability who do not have family support;
(e) to promote measures for the care and protection of persons with disability in the event of death of their parent or guardian;
(f) to evolve procedure for the appointment of guardians and trustees for persons with disability requiring such protection;
(g) to facilitate the realisation of equal opportunities, protection of rights and full participation of persons with disability; and (h) to do any other act which is incidental to the aforesaid objects."
The Act No 44 of 1999 under section 13 provides for constitution of local level committee for such areas as may be specified from time to time. It is also directed under section 13 (4) of the Act No 44 of 1999 that the aforesaid local committee shall meet at least once in three months or at such interval as may be necessary. The local level committee shall consist of -
(a) an officer of the civil service of the Union or of the State, not below the rank of a District Magistrate or a District Commissioner of a district;
(b) a representative of a registered organisation; and
(c) a person with disability as defined in clause (t) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of1996)."
15. Section 14(1) of the Act No. 44 of 1999 further provides that a parent of a person with disability or his relative may make an application to the local level committee for appointment of any person of his choice to act as a guardian of the person with disability. Section 14 (4) of the Act No. 44 of 1999 further provides that the local level committee shall receive, process and decide the application received under Section 14 (1) and (2) of the aforesaid Act in such manner as may be determined by the Regulations.
16. The Central Government in exercise of power under Section 34 of the Act No. 44 of 1999 has framed the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Rules, 2000. The aforesaid Rules have been notified for the purpose of carrying out the purposes of the Act.
17. Rule 16 of the above-mentioned Rules of 2000 provides that the application by a parent, relative or registered organisation for appointment of guardian of a person with disability shall be made to the local level committee in Form A as has been appended along with the Rule. A bare perusal of the aforesaid Form (as prescribed under Rule 16) would further demonstrate that necessary particulars are to be disclosed in the aforesaid Form and disability certificate is also required to be enclosed along with the application. The aforesaid application was also required to be signed by two witnesses.
18. The Board with the previous approval of the Central Government has also framed Regulations under Section 35 of the Act No. 44 of 1999. The aforesaid Regulations are called the Board of the Trust Regulations, 2001. Regulation 13 of the above-mentioned Regulations of 2001 provide the guidelines for receiving, processing and confirmation of the application for appointment of a guardian. The Regulation 13 is quoted herein below :-
"Guidelines for receiving, processing and confirmation of application for appointment of a guardian - (1) The Local Level Committee shall receive applications for appointment of guardian in Form A under the rules.(Amended vide GSR 123(E) dated 16th February 2004).
(2) On receipt of the application for appointment of guardian, the Local Level Committee shall scrutinize the application and call for any supporting document or information that may be necessary for deciding the issue of guardianship.
(3) In case of application received from parents for guardian other than themselves, the Local Level Committee may decide to get parent's counselling in any 54 manner, it may decide to determine the genuineness of having a guardian other than parents.
(4) If parents or relatives are not available for the person with disability who is in need of guardian, because of being a vagrant or destitute or found abandoned, member or members of the Committee may ask for applications from a registered organization to initiate the process of guardianship for the person.
(5) The person with disability must be assessed by the Local Level Committee, to determine the genuineness of the need of guardianship and it shall be open to the Local Level Committee to seek the assistance of technical personnel or their services to determine the need.
(6) The Local Level Committee shall satisfy itself about the capabilities and the suitability of the person on whom guardianship is being conferred.
(7) The application for guardianship for personal care and maintenance shall be accepted to cover the following areas, namely -
a. Food, clothing and shelter needs;
b. Health care needs;
c. Religious needs;
d. Education, training and employment needs;
e. Leisure and nutrition needs;
f. Protection from exploitation and abuse;
g. Protection of constitutional and human rights; and h. Medical and surgical needs.
(8) The confirmation of appointment of the guardian on application made by (1) a registered organization; or (2) the parent or relative of a person with disability shall be made in Form B under the rules."
19. The petitioner, who is the brother of Shri Sandeep Kumar Sharma has sought certificate of guardianship in favour of petitioner on the basis that Sri Sandeep Kumar Sharma is mentally retarded and further physically handicapped. The case of the petitioner is that the parents of Sri Sandeep Kumar Sharma are no more and that he is unmarried. It is the case of the petitioner that he is brother of Sri Sandeep Kumar Sharma and the other brother namely, Ankit Kumar Sharma-respondent no. 3 has no objection for issuance of guardianship certificate in favour of the petitioner and the petitioner being appointed as guardian of Sri Sandeep Kumar Sharma.
20. A perusal of the applications dated 24th June, 2021 and 12th July, 2021 would demonstrate that such applications have been preferred by the petitioner for appointment of the petitioner as guardian of Sri Sandeep Kumar Sharma and for issuance of necessary certificate of guardianship. The above-mentioned applications dated 24th June, 2021 and 12th July, 2021 has been preferred before the District Magistrate, Bijnor. It is also the submission of the counsel for the petitioner that the aforesaid application of the petitioner is pending consideration before the District Magistrate, Bijnor for a substantial period of time without any order being passed on the aforesaid application.
21. The application dated 24th June, 2021 and 12th July, 2021 preferred by the petitioner for issuance of certificate of guardianship in respect of Sri Sandeep Kumar Sharma do not disclose the provision of law under which the aforesaid application has been preferred before the District Magistrate, Bijnor. However on a pointed query made to the counsel for the petitioner as to the provision under which the aforesaid applications dated 24th June, 2021 and 12th July, 2021 has been preferred by the petitioner, the counsel for the petitioner has stated that the aforesaid applications have been preferred under Section 14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, for appointment of guardian. It is the case of the petitioner that Sri Sandeep Kumar Sharma is suffering from mental retardation and the parents of Sri Sandeep Kumar Sharma has already expired and as such a guardian is required to be appointed in respect of Sri Sandeep Kumar Sharma, who is not in a position to maintain himself and look after the property owned by him.
22. It is further to be seen that on earlier occasion, the petitioner had approached the Principal Judge, Family Court, Bijnor by preferring an application under Section 7 of the Guardians and Wards Act, 1890 for appointment of the petitioner as guardian of Sri Sandeep Kumar Sharma. The aforesaid application was finally decided vide order dated 22nd September, 2020 whereby the Family Court, Bijnor refused to grant certificate of guardianship to the petitioner on account of the fact that under the Act of 1890, the guardianship can only be considered in respect of a minor and since Sri Sandeep Kumar Sharma is aged about 35 years and is major and as such the application under the Act of 1890 is not maintainable.
23. It is further to be seen that the power with respect to appointment of a guardian pertaining to a person who is suffering from mental retardation is to be governed by the Act No.44 of 1999. Under Section 14 of the aforesaid Act, the power to appoint guardian in respect of a person suffering from disability is provided. The aforesaid provision provides that the parent of the person with disability or his relative can make an application to a Local Level Committee for appointment of guardian of the person with disability. The Local Level Committee is constituted under Section 13 of the Act No.44 of 1999. The members of the Local Level Committee include an Officer not below the rank of District Magistrate of the district, a representative of a registered organization and a person with disability as defined in Clause F of Section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
24. The power envisaged under Section 14 of the Act No.44 of 1999 with regard to appointment of guardian is to be exercised in accordance with the procedure prescribed under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 2000. Under Rule 16 of the Rules of 2000, it is provided that the application for appointment of guardian for a person with disability shall be made to the Local Level Committee in Form-A. The Form-A is appended to the aforesaid Rules of 2000 for which a prescribed format has been provided which also provides certain documents to be submitted along with the application and the application is to be signed by two witnesses.
25. It is further to be seen that under Regulation No.13 of the 2001 Regulations, detailed guidelines has been prescribed for receiving the processing of formation of application for appointment of guardian. It is also provided under the aforesaid Regulations, the areas in respect of which the guardianship for personal care and maintenance to the person with disability is to cover.
26. The petitioner has filed along with the writ petition a certificate of Chief Medical Officer, Bijnor with regard to mental retardation of Sri Sandeep Kumar Sharma and on the aforesaid basis, the powers under the Act No.44 of 1999 is being sought to be enforced for appointment of guardian in respect of person with disability.
27. A bare perusal of the applications dated 24th June, 2021 and 12th July, 2021 preferred by the petitioner before the District Magistrate, Bijnor for appointment of guardian in respect of Sri Sandeep Kumar Sharma would demonstrate that although the aforesaid application do not provide the provision under which the aforesaid application has been preferred by the petitioner. However, it is trite of law that non-mentioning of a provision of law in the application itself will not invalidate the proceedings if the power for exercise of the jurisdiction under the Act is otherwise available to the District Magistrate. The Apex Court in the case of High Court of Gujarat vs. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712, has held that non-mentioning or wrong mentioning of a provision of law would not invalidate an order if a source therefore can be found out either under general law or a statute law. In view of the aforesaid, the technicalities that the application does not disclose the provisions under which it is filed, will be of no consequence.
28. It is also to be seen that the application under the Rules and Regulations are required to be filed in a prescribed format along with the documents and the witnesses. However, in the present case, the application filed by the petitioner before the District Magistrate, Bijnor seems to be not in proper form as the application is not supported by certificate of disability nor the same is signed by two witnesses.
29. It is also to be seen that the application is not in the prescribed form. However, the aforesaid issues are technical issues and the wheels of substantive justice cannot be stopped only on the ground that the application of the petitioner before the District Magistrate is not in the prescribed form. The Rules and Regulations framed under the Act No.44 of 1999 are for the purpose of carrying out the objects of the Act and one of the objects under the Act is to appoint guardian in respect of a person with disability and as such, the petitioner though has invoked the jurisdiction of District Magistrate, Bijnor by filing an application under Section 14 of the Act No.44 of 1999. However, the aforesaid application is not in the prescribed form and the aforesaid defect is a defect which is curable.
30. It is to be noted that under the Act No. 44 of 1999 there is no provision which restricts the right of the petitioner to cure the defect in respect of the form in which the application under Section 14 of the Act is to be filed for appointment of guardian. The Act No. 44 of 1999 is a beneficial legislation for the benefit of the person with disabilities including mental retardation and for the benefit of the aforesaid person various provisions have been made under the Act and the Rules framed thereunder. Once the Act No. 44 of 1999 is said to be beneficial legislation, the application filed by the petitioner although not in prescribed form, as prescribed under the Rules, however, the same will not denude the authority from proceeding under the Act No. 44 of 1999 and this Court can always direct the petitioner to cure the defect and prefer an application in accordance with form prescribed under the Rules. It is to be noted that a person with disability, including mental retardation, cannot be permitted to be without a guardian. The law envasages protection and care to the aforesaid person with disability, including mental retardation and the same is in consequence with fundamental right under Article 21 of the Constitution of India. The person with disability, including mental retardation, is entitled under law to care and protection by the State Authorities so as to bring them within the mainstream of life, care and protection. The defect of the application not being in proper form is a curable defect and the same can be cured by the petitioner at any stage. It is also to be noted that as of date, the District Magistrate has not passed any order on the application for appointment of guardian and the application is pending consideration. The liberty therefore stands reserved in favour of the petitioner to file an application in prescribed form for appointment of the guardian in respect of Shri Sandeep Kumar Sharma before the respondent authorities. It is also to be noted that the respondent authorities on receipt of the application is required to process the application expeditiously, keeping in view of the fact that a person with disability including mental retardation cannot be permitted under law to remain for a long period without a guardian as the same may be detrimental to the right and interest of the person with disability.
31. In view of the aforesaid, it is hereby directed that the petitioner shall move an application in the prescribed format for appointment of guardian of Sri Sandeep Kumar Sharma along with all the relevant documents before the District Magistrate, Bijnor and on the receipt of the aforesaid application, the District Magistrate, Bijnor shall place the same before the Local Level Committee constituted under the Act No.44 of 1999 for consideration of the application of the petitioner for issuance of certificate of guardianship of Sri Sandeep Kumar Sharma in favour of the petitioner. The Local Level Committee shall accord consideration on the aforesaid application of the petitioner and after giving opportunity of hearing to all the concerned and affected parties, decide the same in accordance with law, within a period of three months from the date of filing of the application by the petitioner under the order of this Court.
32. It is reminded to the District Magistrate, Bijnor that a person who is mentally retarded and who has lost his parents cannot be permitted to remain without a guardian for a long period of time and considering the object of the Act, it is imperative on the Local Level Committee to accord such consideration in accordance with law within the time prescribed.
33. It is, however, made clear that this Court has not considered the merits of the application for grant of guardianship in favour of the petitioner and the Local Level Committee/District Magistrate shall consider the application of the petitioner in accordance with law.
34. In view of the aforesaid, the writ petition stands disposed off.
Order Date :-21.12.2021
Bhaskar
(Vikram D. Chauhan, J.) (Ashwani Kumar Mishra, J.)