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Allahabad High Court · body

2008 DIGILAW 382 (ALL)

SATYA PRAKASH v. UPPER COMMISSIONER (II)

2008-02-20

SUNIL AMBWANI

body2008
JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Shri Awadesh Pratap Singh learned counsel for the petitioner. Standing Counsel appears for the State respondents. 2. This writ petition arises out of proceedings under Section 33/39 of UP Land Revenue Act for correction of land records. 3. The petitioner-Satya Narain is arrayed as a ‘mad’ person through his next friend Shri Gaya Prasad. He made an application before the Sub Divisional Officer, Sirathu, District Allahabad to expunge the prefix ‘mad’ recorded in the revenue records after his name. The Tehsildar, Sirathu made a report on 20.3.2005, that necessary corrections be made and that the word ‘mad’ be deleted after the name of the applicant. The Sub Divisional Magistrate found that the application was not maintainable and rejected the same on 17.11.2005. The recall application was also rejected on 29.6.2007. 4. In the revision under Section 219 of the U.P. Land Revenue Act filed on behalf of the petitioner, it was contended that the Tehsildar’s report was based on enquiries made in the village. The Tehsildar had clearly reported that Shri Satya Narain is not mentally challenged person. He is a healthy person and is not of unsound mind. The Additional Commissioner found that the petitioner was not mentally challenged and that someone without any basis had recorded the word ‘mad’ after his name. According to him it was a clerical error, which could be corrected under Section 33/39 of U.P. Land Revenue Act. The petitioner produced a certificate of Chief Medical Officer, Kaushambi before the Additional Commissioner certifying that he is physically fit and does not suffer from any mental illness. The Additional Commissioner allowed the revision and directed that necessary corrections be carried out in the revenue records. 5. Shri Gaya Prasad, claiming to be next friend of the petitioner, has filed this writ petition on his behalf. Learned counsel for the petitioner contends that the application for correction was made by some imposter. Shri Satya Narain was recorded in the revenue record under the guardianship of his mother Satiniya, who died three years ago. It is contended that Shri Satya Narain is still ‘mad’ and that Shri Kushun Pal-respondent No. 3 (sister’s son of Shri Sundar-father of petitioner) had made the application with some ulterior motive. 6. The law with regard to mentally challenged person has undergone change after enforcement of Mental Health Act, 1985 (the Act). It is contended that Shri Satya Narain is still ‘mad’ and that Shri Kushun Pal-respondent No. 3 (sister’s son of Shri Sundar-father of petitioner) had made the application with some ulterior motive. 6. The law with regard to mentally challenged person has undergone change after enforcement of Mental Health Act, 1985 (the Act). The Act has repealed Indian Lunacy Act, 1877, and has recorded a shift in the approach towards mentally challenged person. The mentally ill person is defined under Section 2 (m) of the Act as a person, who is in need of treatment by reason of any mental disorder other than mental retardation. The Act provides for Central and State Authorities for Mental Health Services in Sections 3 and 4 of the Act, and establishment and maintenance of Psychiatric Hospitals and Psychiatric Nursing Homes to be maintained in accordance with the prescribed norms and conditions and under a licence under Section 7 of the Act. The Act provides for the admission to these hospitals to be either voluntary under Section 15 or involuntary under special circumstances under Section 19. A reception order may be made by a medical officer/incharge of the Psychiatric Hospital under Section 20 of the Act. 7. The Act provides for powers and duties of the police officer and production of any mentally ill person before a Magistrate under Section 23 (3) of the Act. If the person is ill-treated or is not under proper care and control, Section 25 provides for a reception order by the Magistrate. 8. The judicial inquisition regarding alleged mentally ill person possessing property and management of his property is provided in Section 50 under Chapter VI of the Act. Where a mentally ill person possesses property, an application for holding an inquisition into the mental condition of such person may be made either by his relatives, or by a public curator or Advocate General of the State. Such an application can also be made where the property is entrusted by a person, the person appointed for such entrustment for maintenance by the Courts of Wards or Collector of the District to the district Court within the local limits of whose jurisdiction the alleged mentally ill person resides. Such an application can also be made where the property is entrusted by a person, the person appointed for such entrustment for maintenance by the Courts of Wards or Collector of the District to the district Court within the local limits of whose jurisdiction the alleged mentally ill person resides. The District Court shall, under sub-section (2), serve a notice on the alleged mentally ill person to attend at such place and at such time, or serve a notice on the person having the custody to produce the mentally ill person. The District Court may examine such person or allows such other person from whom the district court call a report. It may also appoint two or more persons to act as assessors. The district court shall under Section 51 records its findings whether the alleged mentally ill person is in fact mentally ill or not and whether he is incapable of taking care of himself and of managing his property or incapable of managing his property only. The District Court shall then, if it finds that a person is mentally ill and is incapable of taking care of himself, appoint a guardian or under Section 54 appoint a manager for management of his property. The manager is required to execute a bond and his duties and powers are prescribed under Sections 58 and 59 of the Act. He is required to act under the supervision of the District Court which has the power to remove or change the manager. These orders are appellable under Section 77 of the Act. 9. The law has taken care of the treatment and management of the properties of the mentally ill person, and has provided a greater care where such mentally ill person, incapable of looking after his affairs, possesses some property. The revenue authorities are not empowered to record any person as a ‘mad’ person and to allow the next friend to manage his property on his own. The District Court is given the authority to look after and manage the properties of such disabled person. The District Court will however appoint a guardian or a manager only after an inquest and recording a finding that such person is incapable of taking care of his affairs and to manage his properties. The District Court is given the authority to look after and manage the properties of such disabled person. The District Court will however appoint a guardian or a manager only after an inquest and recording a finding that such person is incapable of taking care of his affairs and to manage his properties. No one can act as manager of a mentally ill person on his own, and appoint himself to look after the properties. 10. The Additional Commissioner did not commit any error in expunging the word ‘mad’ after the name of petitioner. 11. Further, I find that this writ petition by a self-appointed guardian namely Gaya Prasad, who has not annexed any medical certificate or an order of appointment by the District Court, and has not given his relationship to the petitioner, is not maintainable. After the shift in law by the Mental Health Act, 1985 no one has an authority except the District Court, after causing an inquest to appoint a manager, if it finds that a person is mentally ill and is unable to take care of his properties. In the present case the Tehsildar and Sub Divisional Magistrate were not competent to declare and to write the word ‘mad’ after the name of Shri Satya Narain. The word ‘mad is an offending expression, and is used by persons who are not sensitive to the fact that every mental disorder is not incurable and that most of such persons are in need of help and care to be offered by persons gifted by God with normal health. 12. The writ petition is dismissed. ———