Madras High Court
N.Chandrika vs The Government Of Tamil Nadu on 5 October, 2023
Author: Anita Sumanth
Bench: Anita Sumanth
WP.Nos.24258, 32457 & 34288 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 26.02.2024
Pronounced on: 30.04.2024
CORAM
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
WP.Nos.24258, 32457 & 34288 of 2023
WP.No.24258 of 2023:
N.Chandrika ... Petitioner
Vs.
1.The Government of Tamil Nadu
Rep. by the Secretary to the Government,
Revenue Department,
Secretariat, Fort St. George,
Chennai-600 009.
2.The District Collector (Chennai)
O/o.Chennai Collectorate,
Fourth Floor,
SingaravelarMaaligai Complex,
No.62, Rajaji Salai,
Chennai – 600 001.
3.The Chairperson,
National Trust for Welfare of Persons with Autism,
Cerebral Palasy, Mental Retardation and Multiple Disabilities,
Department of Empowerment of People with Disabilities,
6th Floor, National Institute of Social Defence Building,
Plot No.G2, Sector 10, Dwarka,
New Delhi-110 075.
(R3 suo motu impleaded as per order dated 05.10.2023
in WP.24258 of 2023 by this Court)
4.The Local Level Committee for the Welfare of
https://www.mhc.tn.gov.in/judis
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WP.Nos.24258, 32457 & 34288 of 2023
Persons with Autism,
Mental Retardation and Multiple Disabilities,
Rep. by Chairperson, District Collector,
Collector Office, Chennai. ... Respondents
(R4 suo motu impleaded as per order dated 31.10.2023
In WP.24258 of 2023 by this Court)
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus directing the 2nd Respondent to consider
the representation dated 15.07.2023 issued by the Writ Petitioner under Section
14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities Act, 1999 and pass orders in a
manner known to law within a reasonable time-frame as may be fixed by this
Court.
WP.No.32457 of 2023:
1.N.Kasthuri
2.D.Nagarajan
3.N.Padmini ... Petitioners
Vs.
1.The State of Tamil Nadu
Represented by the Secretary,
Health and Family Welfare Department,
Secretariat,
Chennai-600 009.
2.The District Collector,
O/o.The District Collector,
No.62, Rajaji Salai, 4th Floor,
Chennai – 600 001.
3.The Tahsildar,
Perambur Taluk,
Chennai-600 012. ... Respondents
https://www.mhc.tn.gov.in/judis
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WP.Nos.24258, 32457 & 34288 of 2023
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Declaration, declaring the 1 st Petitioner N.Kasthuri as
the guardian of her son Mr.Thirukumaran Nagarajan, who is in a comatose
condition for operating his bank accounts/ investments and dealing with
movable and immovable properties for the purpose of protecting his interests.
WP.No.34288 of 2023:
B.Sripriya ... Petitioner
Vs.
1.The State of Tamil Nadu
Rep. by its Secretary,
Department of Health and Family Welfare,
Secretariat, Fort St. George,
Chennai-600 009.
2.The District Collector,
Chengalpattu District Collectorate Office,
GST Road, Chengalpattu 603 001.
3.The Tahsildhar,
Chengalpattu Taluk Office,
VOC Nagar,
Chengalpattu 603 001.
4.The Secretary to Government,
Commercial taxes, registration and stamp act department,
Government of Tamil Nadu,
Secretariat, Fort St. George,
Chennai 600 009.
5.The Local Level Committee for the Welfare of
Persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple Disabilities,
rep. by Chairperson, District Collector,
Collector Office, Chennai. ... Respondents
(R5 suo motu impleaded as per order dated 14.12.2023
in WP.34288 of 2023 by this Court)
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WP.Nos.24258, 32457 & 34288 of 2023
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus, directing the respondents 1 to 4 herein to
recognize the petitioner as a legal guardian of Mr.B.Ravi S/o (Late)
V.Balasubramanian and appoint the petitioner as the manager for executing and
registering deeds of conveyance and other deeds for the 1/4 th share of property
pertaining to Mr.B.Ravi at Flat No.G1, Ground Floor, Plot No.57, Door No.3,
26th Street, Shankara Nagar, Pammal, Chennai 600 075.
WP.Nos. For Petitioners For Respondents
WP.No.24258 of Mr.Anish Gopi Mr.G.Nanmaran,
2023 Special Government Pleader
(for R1, R2 & R4)
WP.No.32457 of Mr.M.Navin Kumar Mr.G.Nanmaran,
2023 Special Government Pleader
(for R1 to R3)
WP.No.34288 of Mr.N.Ramkumar Mr.G.Nanmaran,
2023 Special Government Pleader
(for R1, R4 & R5)
Mr.S.JohnJ.Raja Singh
Additional Government
Pleader
(for R2 & R3)
WP.Nos.24258, Ms.N.S.Tanvi, Amicus Curiae
32457 & 34288 of
2023
COMMON ORDER
Facts in WP.No.34288 of 2023:
The petitioner’s brother is mentally retarded since birth. Upon demise of the petitioner’s father, the petitioner’s mother and her children (petitioner and sibling) had applied for their appointment as the legal guardian. The National https://www.mhc.tn.gov.in/judis 4 WP.Nos.24258, 32457 & 34288 of 2023 Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities/R5 had processed their application and after enquiry conducted by the District Collector, Chengalpattu, the petitioner and her mother had been appointed as the legal guardian for maintenance and residential care of the petitioner’s brother by a certificate dated 11.10.2021.
2.Upon the demise of the petitioner’s father, his legal heirs, being the petitioner, her mother and her two brothers including the brother who is mentally retarded had acquired various assets as legatees. One such is the property at Plot No.57, Door No.3, 26th Street, Sankar Nagar, Pammal, Chennai-600 075 in Sree Sankara Nagar Layout, Stage IV, bearing patta No.9900, Survey No.143/570, R.S.No.143/2 (Pammal Village) (property/ property in question).
3.The petitioner and her father had, during the lifetime of the latter, entered into transactions for promotion of that property. The details of such transactions are not adverted to as being unnecessary for the purpose of adjudication of the prayer in the writ petition.
4.Suffice it to say that the petitioner and her mother acting on the certificate issued by R5 on 11.10.2021 now seek to dispose a certain portion of the property in question which vested in the petitioner’s brother.
5.The prayer is thus for a mandamus directing the respondents to recognise the petitioner as legal guardian of her brother and as his Manager for https://www.mhc.tn.gov.in/judis 5 WP.Nos.24258, 32457 & 34288 of 2023 executing various deeds for conveying the brother’s portion in the property in question.
Facts in WP.No.24258 of 2023:
6.The petitioner’s mother aged 78 years presently is suffering from dementia that has deprived her of the mental faculties required to conduct her daily life. The petitioner claims to be the sole care giver of her mother. She states that on account of her mother’s present condition she is unable to discharge basic functions quite apart from suffering physical ailments as a result of advanced age.
7.Her mother has assets in her name such as bank deposits and valuables secured in bank lockers. As she is unable to maintain her assets, the petitioner has assumed responsibility for the maintenance of the same. She also states that some portion of the assets are now required for the care and well-being of her mother.
8.The petitioner had made a representation before the District Collector, Chennai/R2 seeking appointment as legal guardian under Section 14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 and relying on case law. That representation is pending thus far. She thus seeks a mandamus directing R2 to consider her representation dated 15.07.2023 and appoint her as legal guardian of her mother.
https://www.mhc.tn.gov.in/judis 6 WP.Nos.24258, 32457 & 34288 of 2023 Facts in WP.No.32457 of 2023:
9.There are three petitioners, the first, the mother, the second, the husband and third, the sister of a person who had suffered a cardiac arreston 24.05.2022. Presently, he is in a comatose condition and has been certified medically to be unresponsive and suffering severe medical compilations. The medical certificate states as: ‘It is a case of cardiac arrest (on 24.05.2022), resuscitated, Type 1 Brugada Syndrome and severe hypoxic ischemic encephalopathy. He was treated conservatively at Sakra World Hospital. Since the event he had been unresponsive with severe disorder of consciousness. Currently he is undergoing neuro rehabilitation since 04-06- 2022.At present he is unresponsiveness, bed bound, on PEG tube feeding, bladder on silicon catheter and bowel incontinence.’
10. The Neuropsychology Unit, Department of Clinical Psychology, NIMHANS has issued Neuropsychological assessment report dated 19.04.2023 and 21.04.2023. The relevant portion of the same is extracted below:
Reason for Referral : Assessment of current cognitive functioning Test Administered : Vineland Social Maturity Scale. ..............
Summary of Test Findings:
The assessment of his socio-adaptive functioning reveals that there is significant deterioration in his socio-adaptive functioning after the injury. Currently he has as Social Quotient (SQ) of 2 which indicates profound Deficits in Socio-adaptive functioning. This amounts to 100 (Hundred PERCENT) disability as per PWD Act.
https://www.mhc.tn.gov.in/judis 7 WP.Nos.24258, 32457 & 34288 of 2023 Consultant Examiner Sd/- Sd/-
Professor and Head of Department I PhD Scholar Neuropsychology Unit NeuropsychologyUnit Department of Clinical Psychology Department of Clinical Psychology
11.P1 and P2 are senior citizens and state that their son is a divorcee. In the event of any untoward occurrence, they would be the legal heirs. Their son has resources that are presently locked on account of his inability to access the same, even for his own treatment. A representation has been made by P1 on 25.09.2023 seeking to be appointed as medical guardian relying on various salutary legislations such as the Mental Health Act, 1987 (in short ‘MH Act 87’), Mental Health Care Act, 2017 (in short ‘MHC Act 17’), Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (‘PwD Act 95’) and the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (‘NT Act 99’).
12.Their representation has not been acted upon thus far and hence this writ petition seeking a declaration that P1 be appointed as the guardian of their son as he is in a comatose condition, to enable operation of his bank accounts and investments as well as manage his movable and immovable assets for the purpose of protecting his interests as well as the assets themselves.
13.The common prayer of all petitioners is for their appointment as legal guardians to enable access to movable and immovable assets of those who they https://www.mhc.tn.gov.in/judis 8 WP.Nos.24258, 32457 & 34288 of 2023 are presently caring for, being the mother, brother and son respectively (collectively referred to as ‘individuals’ or ‘PwD’). The relationships of the petitioners to the individuals of whom they seek guardianship is not in dispute. The medical condition of the latter as on date, and as projected in the affidavit and accompanying medical records, is also not in dispute.
14.Since the matters touch on the rights of an entire community, this Court had wished to deal with the same in some detail. Ms.Thanvi, learned counsel was appointed as Amicus Curiae in light of her experience as a member/consultant with the State Commission for Persons with Disabilities as well as her personal commitment to this subject. She has filed two comprehensive reports and a compilation including relevant case law to aid with understanding of the law on the subject.
15.The following decisions have been cited by the parties: 1
1. Sairabanu Mohammed Rafi V. State of Tamil Nadu
2. Vandana Tyagi and Anr. V. Government of National Capital Territory of Delhi (GNCTD) and Ors.2 3
3. Vijay Ramachandra Salgaonkar V. State 4
4. Anushka Rajiv Mohite V. Union of India and Ors.
5. Ali Muntazir Lehry V. Secretary, Department of Health and Family Planning.5 6
6. Shobha Gopalakrishnan V. State of Kerala 7
7. Rajni Hariom Sharma V. Union of India and anr.1
WP.No.28435 of 2015 dt. 06.01.2016 (Madras High Court) 2 AIR ONLINE 2020 DEL 5 3 WP.No.637 of 2021 dt. 17.07.2021 (Bom. H.C.) 4 WP.(L)No.25114 of 2023 dt. 06.10.2023 (Bom. H.C.) 5 (2018 SCC Online Bom 10892) 6 (2019 SCC Online Ker 739) 7 (2020 SCC Online Bom 880) https://www.mhc.tn.gov.in/judis 9 WP.Nos.24258, 32457 & 34288 of 2023 8
9
9. Purnima Kantharia V. Union of India and Ors. 10
11.Pooja Sharma V. State of UP 12
13.Latha TB V. Union of India 14
14.G Babu V. District Collector and Ors.
15
15.PragneshPodar V. Alka Podar and Ors.
16
16.NithinThakker V. State of Maharashtra 17
17.C.Raghuraman Scheme of the statutes on the subject
16.The first of the statutes enacted to provide for care of disabled persons i.e. person with mental illness was the MHAct, 1987 that provided a mechanism for regulating psychiatric institutions and a method for involuntary psychiatric treatment of affected persons.
17.Next came the PwD Act 95 that was a comprehensive enactment for protection of the rights of persons with disability. It recognised several specific disabilities under the definition in Section 2(i) of the Act being (i) Blindness (ii) Low vision (iii) Leprosy –cured(iv) Hearing impairment (v) Locomotor disability (vi) Mental retardation and (vii) Mental illness.
18. Mental illness was defined under clause (q) of Section 2 to mean any mental disorder other than mental retardation. Clause (r) defined Mental 8 (2021 SCC Online Del 4856) 9 (2022 SCC Online Bom 10647) 10 (2023 SCC Online Del 1793) 11 (2023:AHC:193153-DB) 12 (2023 SCC Online Cal 3352) 13 (2021 SCC Online Ker 2398) 14 (2023 SCC Online Mad 568) 15 (Suit(L) No.120/2017 dated 06.03.2017) 16 LV-VC-GSP-INTERIM APPLICATION NO.1 OF 2020 dt. 13.08.2020 (Bom. H.C.) 17 (O.P.No.731 of 2021 dated 27.01.2022 (Mad High Court) https://www.mhc.tn.gov.in/judis 10 WP.Nos.24258, 32457 & 34288 of 2023 retardation as a condition of arrested or incomplete development of mind of a person which is specifically characterized by sub-normality of intelligence. Person with disability was defined as a person suffering not less than 40% of any disability as certified by a medical authority.
19. The NT Act, 1999 was enacted specifically to deal with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities and provided for the appointment of guardians for those persons under Section 14 thereof. The terms autism, cerebral palsy, mental retardation and multiple disabilities are defined under Sub Section (a),(c),(g) & (h) of Section 2 as follows:
"autism" means a condition of uneven skill development primarily affecting the communication and social abilities of a person, marked by repetitive and ritualistic behaviour;
"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, peri-natal or infant period of development;
"Mental Retardation" means a condition of arrested or incomplete development of mind of person which is specially characterised by sub-normality of intelligence;
"Multiple Disabilities" means a combination of two or more disabilities as defined in clause (i) of section 2 of the Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996);
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20.Clause (j) of Section 2 defines a ‘person with disability’ as one suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of two or more of such conditions, including a person suffering from severe multiple disability. A ‘severe disability’ is defined as a condition which is a combination of several disabilities, their cumulative percentage being in excess of 80%.
21. The United Nations Convention on the Rights of Persons with Disabilities (UN Convention) had been ratified by India in 2007 and came into force on 03.05.2008. India enacted the RPD Act 16 under which the definition of persons with disability meant a person with long term physical, mental, intellectual or sensory impairment which, in inter-action with barriers, hinders his full and effective participation in society equally with others.
22. A definition was included for person with benchmark disability meaning a person with a disability of not less than 40% of a specified disability. The phrase ‘person with disability having high support needs’ was also defined meaning a person with benchmark disability as certified in the manner provided under the Act, and who has need for high levels of support.
23. The MHCA 17 was enacted to implement the provisions of the UN Convention and to strike a balance between protecting the autonomy of persons with disabilities while at the same time providing for the care necessary for them.
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24.The UN Convention had, in effect, made a departure from the earlier position in relation to persons with disabilities and care appropriate to them. Statutes such as the 1995 and 1987 Act were thus found to be outdated and have since been repealed.
25.An anomaly however is that the NTA 1999, still applies the definitions under the 1995 Act as well as the principles enshrined thereunder. It is under that Act that the petitioners seek appointment as guardians of a comprehensive nature, including management of assets of the PwD. It has thus become imperative to define a ‘person with disability’ and the Court encounters a difficulty at this juncture as the definition of a PwD under the NTA 99 and RPWD Act 16, are different.
26.An objection has been raised on behalf of the respondents to state that the grant of guardianship as sought for is impermissible for the reason that two out of the three individuals do not suffer Autism, Cerebral Palsy, Mental Retardation or Multiple Disabilities, or could be classified as having multiple disabilities. The conditions of dementia and coma would not come under the cover of the NTA 99. Hence, mandamus as sought for cannot be granted. This position is also echoed by the Amicus.
27.The preamble to the NTA 99 states that the avowed purpose is for the constitution of a body at the National Level for the Welfare ofPersons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities and for https://www.mhc.tn.gov.in/judis 13 WP.Nos.24258, 32457 & 34288 of 2023 those matters connected and incidental thereto. A National Trust had been constituted at Delhi to carry out the objectives of the Trust, which are in accordance with the objectives under the Act. The objects themselves are set out under Chapter III, Section 10, as follows:-
‘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 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 parents or guardians; (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.
28.Chapter IV containing Section 11, sets out the powers and duties of the Board and Chapter V containing Section 12 sets out the procedure for registration of associations of persons with disabilities or their parents or voluntary organisations, whose main object is the promotion of the welfare of PwD. Chapter VI deals with the Local Level Committee.
29.The respondents have asked to obtain particulars in regard to the Local Level Committee constituted in the State of Tamil Nadu. They confirm https://www.mhc.tn.gov.in/judis 14 WP.Nos.24258, 32457 & 34288 of 2023 that a Committee has been constituted with a tenure of three years, i.e., between 07.06.2022 and 06.06.2025. The constitution was found to be incomplete insofar as Section 13(2) of the NTA 99, dealing with constitution of the committee requires that a PwD also feature as a member of the Committee. After this Court pointed out this defect, the constitution had been remedied to include a PwD as well. The present constitution of the Local Level Committee in Chennai District is stated to be as follows:
(i) District Collector, Chennai as a Chairman.
(ii) a member (registered with the National Trust) from the Spastics Society of Tamil Nadu.
(iii) a person with disability – Mr.Ummul Khair, Vidyasagar.
30.Section 14 of the NTA 99, under which the petitioners seek appointment as guardian, reads thus:-
‘Appointment of guardianship – (1) 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 persons with disability.
(2) Any registered organisation may make an application in the prescribed form to the Local Level Committee for appointment of a guardian for a person with disability. Provided that no such application shall be entertained by the local level committee, unless the consent of the guardian of the disabled person is also obtained.
(3) While considering the application for appointment of a guardian, the local level committee shall consider- - whether the person with disability needs a guardian; - the purposes for which the guardianship is required for person with disability.
(4) The local level committee shall receive, process and decide applications received under sub-sections (1) and (2), in https://www.mhc.tn.gov.in/judis 15 WP.Nos.24258, 32457 & 34288 of 2023 such manner as may be determined by regulations: Provided that while making recommendation for the appointment of a guardian, the local level committee shall provide for the obligations which are to be fulfilled by the guardian.
(5) The local level committee shall send to the Board the particulars of the applications received by it and orders passed thereon at such interval as may be determined by regulations.
31.Section 15 entitles the guardian to be responsible for the care of the person, his maintenance as well as his property.
32.Section 16 requires the guardian to furnish an inventory and annual account of the assets of the PwD, together with a statement of all claims of debts and liabilities due by such person. The guardian is also to provide a statement of property and assets in his charge, receipts and disbursals on account of the PwD and the balance of amounts/assets within a period of three months from the close of every financial year.
33.Section 17 provides for the removal of guardian in circumstances where the parent or relative of the PwD or any registered organisation believes that the guardian is abusing or neglecting the PwD or misappropriating or neglecting the property in his charge. Such removal is to be by the Local Level Committee upon an application by the interested person.
34.The appointment under Section 14 is for all time and encompasses both care of the person as well as his property. The power vested in the person appointed is wide and consequently, so is the control exercised by the guardian on the PwD. Barring the requirement for filing of financial statement under https://www.mhc.tn.gov.in/judis 16 WP.Nos.24258, 32457 & 34288 of 2023 Section 16 and removal under Section 17, there is no provision for monitoring or overseeing of the appointments made under Section 14.
35.I am of the considered view that there must be a mechanism to ensure that the committee monitors the actions of the guardian both in terms of the care of the PwD as well as his property. The constituents of the committee had appeared before this Court with the committee records, sought for under an order of the Court. However, the records only contain particulars of appointments as guardians and nothing further. The Court does not even find any details of compliance with the mandate under Section 16 of the NTA 99. This is a serious lacuna.
36. There must be a check upon the powers of the guardian appointed, at least to the extent of ensuring that their actions are bonafide. To this extent, the respondents will cause due enquiry into the actions of those persons appointed as guardians by the LLC under the NTA 99 thus far. Let as status report be filed prior to the next date of hearing in this regard.
37. In any event, as rightly pointed out by the respondents the NTA 99 addresses specifically only those persons with autism, cerebral palsy, mental retardation and multiple disabilities. Cases of patients with dementia or coma stand outside the purview of this enactment. https://www.mhc.tn.gov.in/judis 17 WP.Nos.24258, 32457 & 34288 of 2023
38.The petitioners have relied on a decision of a learned Judge of this Court sitting in Madurai in the case of G.Babu18. In that case, the petitioner had sought appointment as guardian for his sister suffering from schizophrenia, a mental illness. The application was allowed holding that the NTA 99 would equally cover a case of mental illness as well. However, the NTA 99 employs the definitions under the 1995 Act (since repealed). I am hence of the considered view that the petitioners cannot take advantage of the reference to ‘mental illness’ under the 1995 Act. That reference in the NTA 99 is clearly incorrect and calls for amendment. What comes to be aid of the petitioners are the RPWD Act16 and MH Act 17.
39.The Kerala High Court in Shoba Gopalakrishnan 19 and the Delhi High Court in Vandana Tyagi20 as well as SD V. NCT21 have undertaken the exercise of examining in detail the Scheme of the various enactments finally preferring to invoke parens patriae jurisdiction and taking it upon themselves to appoint a guardian for the PwD. This for the reason that neither the RPWD Act 16 nor the MH Act 17 allow for the appointment of a guardian for comprehensive care of the PwD including his person and property. The NTA 99 which does have such a provision does not apply to cases of dementia or coma. 18 Foot Note Supra 14 19 Foot Note Supra 6 20 Foot Note Supra 2 21 Foot Note Supra 8 https://www.mhc.tn.gov.in/judis 18 WP.Nos.24258, 32457 & 34288 of 2023
40.The following directions have been issued by the Kerala High Court in the case of Shoba Gopalakrishnan 22:
....
36. Guidelines
(i) A person(s) who seek(s) to be appointed as guardians vis-à-
vis an individual, who is lying in comatose state, shall in their petition to the court disclose the details of all tangible and intangible assets of such an individual.The details as to their location and approximate market value shall also be disclosed. In case of bank accounts, stocks, shares, and debentures and other investments are concerned, material particulars will be provided.
(ii) The court will have the person lying in comatose examined by a duly constituted medical board which would include, inter alia, a neurologist.
(iii) The court will also direct the concerned SDM/Tehsildar in whose jurisdiction the person lying in comatose is said to be located to carry out an enquiry to establish the veracity of the assertion and to gather material particulars concerning the person(s) who approach the court for being appointed as guardians. The enquiry will, inter alia, gather information as regards the relationship that the person(s) who wish to be appointed as guardians has/have with the person lying in comatose state. Information with regard to the financial condition of persons wanting to be appointed as guardians shall also be collected apart from other aspects which may have a material bearing in their discharging the duties of a guardian. Any conflict of interest concerning the affairs of the person lying in comatose state will be brought to fore in the report generated during the course of the enquiry.
(iv) Ordinarily only that person will be appointed as guardian who is a spouse or a progeny of the person lying in comatose. The person seeking appointment as a guardian in his petition to 22 Foot Note Supra 6 https://www.mhc.tn.gov.in/judis 19 WP.Nos.24258, 32457 & 34288 of 2023 the court will, however, disclose the particulars of all legal heirs of the person lying in comatose. In the event, the person lying in comatose has neither a spouse nor any children or even any legal heirs or if he/she has such persons in his life but stands abandoned by them subject to the permission of the court his next friend who wishes to be appointed as a guardian can approach the court with such a request. In the alternative, the Court could direct the Department of Social Welfare, GNCTD to appoint a public official such as a Social Welfare Officer or a person holding equivalent rank to act as the guardian of the person lying in comatose state.
(v) Only that person shall be appointed as a guardian who is otherwise in law competent to act as a guardian.
(vi) The order directing appointment of a guardian shall specify the assets qua which the guardianship order is passed. The court will be empowered to modify the order and bring within its sweep other assets, if required, in the interest of the person lying in comatose state. In case liquid funds are not available and there is a requirement to sell the assets of the person lying in comatose state, upon the guardian approaching the court, necessary directions could be passed in that behalf.
(vii) The person appointed as a guardian will file every six (6) months (or within such period as the court may indicate in its order) a report with the Registrar General of this court. The report shall advert to the transactions undertaken by the guardian in respect of the assets of the person lying in comatose state. Besides this, the report shall also indicate the funds, if any, received by the guardian and their utilization for the purposes of maintaining the person lying in comatose state.
(viii) The Registrar General of this court will cause a separate register to be maintained which will set out inter alia the details of the proceedings, the particulars of the person appointed as a guardian and orders, if any, passed after the appointment of the guardian. Measures will also be taken by the Registrar General to preserve the reports filed by the guardian from time to time.
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(ix) It will be open to the court to appoint a guardian either temporarily or for a limited period, as may be deemed fit.
(x) In the event, the guardian appointed by the court misuses his/her power or misappropriates, siphons or misutilizes the assets of the person lying in comatose state or fails to utilize the assets in the best interest of the person lying in comatose state, the court would have the power to remove the guardian and appoint another person in his/her place. The substituted person could also be a public officer such as a Social Welfare Officer or an officer holding an equivalent rank.
(xi) The guardian appointed by the court shall intimate his appointment to the public official/Social Welfare Officer or officer of an equivalent rank designated by GNCTD. Both the guardian as well as the Registrar General of this court will cause a copy of the order of guardianship being served upon such officer. Such officer shall visit the person lying in comatose at least once in every quarter. The Social Welfare Officer will generate a report of his visit. In case the Social Welfare Officer finds that the guardian appointed by the court is not acting in the best interest of the person lying in comatose state, he will move the court, at the earliest, for seeking appropriate directions.
(xii) The guardian appointed by the court will ensure that the transactions entered into by him or her comport with the relevant provisions of the law.
(xiii) In case a relative or a next friend of the person lying in comatose state finds that the guardian is not acting in the best interest of the person lying in comatose state, such person will also have the locus to approach the court for issuance of appropriate directions and/or for removal of the guardian.
(xiv) In case, the guardian wishes to move the person lying in comatose state to another state or even to another country for the purposes of securing better medical treatment for the person lying in comatose state, he/she would approach the court for necessary permission before undertaking such an exercise.
https://www.mhc.tn.gov.in/judis 21 WP.Nos.24258, 32457 & 34288 of 2023
41. Bearing in mind the above, the following directions are issued:
(i) The records of medical disability in the cases of Mr.M.Thirukumaran, Mrs.T.N.Dhanalakshmi and Mr.B.Ravi are available as part of the writ petitions. However, seeing as some time has elapsed since the matter has been instituted, a medical board would have to be constituted and the individuals examined for certification of their conditions as at present.
(ii) The Tamil Nadu Rights of Persons with Disabilities Rules 2018 contains Table II stipulating the list of certifying authorities for the issue of disability certificate, corresponding to Rules 10(1) and (3) thereof. Inter alia, the constituents of the Medical Board for certification of chronic neurological conditions such as Multiple Sclerosis and Parkinson’s disease comprises (a) Psychiatrist (b) Trained Psychologist (c) Neurologist (d) Orthopaedician or Specialist in Physical Medicine and Rehabilitation
(iii) A Medical Board as in point (ii) above will be constituted by respondents I and 2. The constituent doctors shall be drawn from any Government General Hospital in Chennai. The PwD in these https://www.mhc.tn.gov.in/judis 22 WP.Nos.24258, 32457 & 34288 of 2023 matters will be examined by the Board and report/certificate of their disability will be filed by R1 prior to the next date of hearing.
(iv) The petitioners will file a comprehensive list of tangible and intangible assets of the PwD, including and not restricted to land and building, bank accounts, stocks, shares and debentures and other investments.
(v) Subject to compliance of the above two requirements prior to the next date of hearing, the individuals seeking appointment as guardians, Mrs.B.Sripriya, sister of Mr.B.Ravi, Mrs.N.Kasthuri, mother of Mr.M.Thirukumaran and Mrs.N.Chandrika, daughter of Mrs.T.N.Dhanalakshmi are appointed as guardians of the respective PwD. Their appointment is subject to strict adherence to the following conditions.
(vi) The guardians so appointed under this order shall file a statement every quarter with bank statements reflecting the bank balances of the PwD and a list of their assets as on that date before the Registry of this Court.
(vii) Along with the statement at point (vi) the guardians shall render true accounts of any funds received and expended as belonging to the PwD before the Registry of this Court.
https://www.mhc.tn.gov.in/judis 23 WP.Nos.24258, 32457 & 34288 of 2023
(viii) Any individual (friend or family) or statutory authority may bring to the notice of this Court or any authority, the factum of misuse/abuse of funds/ assets of the PwD and if such information is brought to the knowledge of the Court/authority necessary steps are to be taken to cancel the guardianship in accordance with law.
42.List on 20.06.2024 to receive the above details.
30.04.2024 Index : Yes / No Speaking Order Neutral citation:Yes/No. vs To
1.The Secretary to the Government, Revenue Department, Secretariat, Fort St. George, Chennai-600 009.
2.The District Collector (Chennai) O/o.Chennai Collectorate, Fourth Floor, SingaravelarMaaligai Complex, No.62, Rajaji Salai, Chennai – 600 001.
3.The Chairperson, National Trust for Welfare of Persons with Autism, Cerebral Palasy, Mental Retardation and Multiple Disabilities, Department of Empowerment of People with Disabilities, 6th Floor, National Institute of Social Defence Building, Plot No.G2, Sector 10, Dwarka, New Delhi-110 075.
4.The Chairperson/District Collector, https://www.mhc.tn.gov.in/judis 24 WP.Nos.24258, 32457 & 34288 of 2023 The Local Level Committee for the Welfare of Persons with Autism, Mental Retardation and Multiple Disabilities, Collector Office, Chennai.
5.The Secretary, Health and Family Welfare Department, Secretariat, Chennai-600 009.
6.The Tahsildar, Perambur Taluk, Chennai-600 012.
7.The District Collector, Chengalpattu District Collectorate Office, GST Road, Chengalpattu 603 001.
8.The Tahsildhar, Chengalpattu Taluk Office, VOC Nagar, Chengalpattu 603 001.
9.The Secretary to Government, Commercial taxes, registration and stamp act department, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai 600 009.
https://www.mhc.tn.gov.in/judis 25 WP.Nos.24258, 32457 & 34288 of 2023 DR.ANITA SUMANTH,J.
vs WP.Nos.24258, 32457 & 34288 of 2023 30.04.2024 https://www.mhc.tn.gov.in/judis 26