JUDGMENT : 1. Writ of Mandamus is sought in terms of the instant petition for directing the respondent No. 2 to constitute a Mental Health Review Board under Section 73 of Mental Health Care Act, 2017 for disposing of the work assigned under the Act and make necessary follow up in terms of the said statute regarding management of property of the mentally ill persons and also with regard to their care. 2. The petitioner's case, as set out in the petition, is:- (i) that he is the husband of Seema Gupta who is not mentally fir as she can't make a rational judgment. She is of unsound mind and can't take decision on her own. She requires somebody to take care of her as well as her moveable and immoveable property on her name; (ii) that Seema Gupta is owning and possessing one plot of land bearing Plot No. 324 measuring 30x55 duly situated at Sector-No. 3, housing Colony, Channi Himmat, Jammu apart from this plot she is also having saving bank account bearing A/c No. 37658047903 which is being operated in respondent No. 3 bank where her monthly pension is credited; (iii) that Seema Gupta was a teacher earlier and she took superannuation because of her health issues and her monthly pension is coming in this account operated in respondent No. 3 bank and all her pensionary benefits in the shape of gratuity and other benefits have also been deposited by the employer in this saving bank account bearing A/c No. 37658047903 which is being operated in respondent No. 3 bank. The petitioner being husband of Seema Gupta is also made nominee in the saving bank account being operated in respondent No. 3 bank and to manage the above said present and future properties of Seema Gupta a guardian is required to manage and take care of her above said properties and also of Seema Gupta because she on her own can't do anything as she is of unsound mind and can't take a decision. She has been suffering from mental problem for the last number of years and the petitioner is taking care of her being husband; (iv) that as above-said it is the petitioner herein who is taking care of Smt. Seema Gupta for the last number of years, so being husband he can be made guardian of Seema Gupta as well as manager of property because as above said every month the above said account is credited with her pension and moreso the petitioner is also having her money deposited in that account which she got by way of superannuation, so to operate this account also manager is required so the petitioner herein can be made manager of Seema Gupta to take care of her properties which can be spent over her welfare and disease; (v) that apart from mental unsoundness she is also suffering from multiple problems for which lot of money is required and this money can be properly arranged from the moveable and immoveable properties of Seema Gupta by the guardian only who will continuously work for her welfare in every manner. Minimum Rs. 50,000/- to Rs. Minimum Rs. 50,000/- to Rs. 60,000/- is required to take care of Smt. Seema Gupta per month and this expenses can be met only if somebody is appointed as a guardian and manager of her properties, so a direction can be issued to appoint the petitioner the guardian of Smt. Seema Gupta for her welfare and maintenance which is a spirit of the Mental Health Care Act, 2017; (vi) that in the earlier act i.e. Mental Health Act, 1987 there was a provision enshrined for the appointment of guardian and manager of a mentally disabled person but unfortunately this old act has been repealed and the new act has been brought into an existence by the parliament under the name Mental Health Care Act, 2017 wherein no provision has been envisaged pertaining to the appointment of guardian of mentally ill person and for manager of property which as per the earlier Act "Mental Health Act, 1987" categorically revealed, so an ambiguous and lawlessness situation is arisen for the appointment of guardian and manager under the new act; (vii) that under the new Act also it is the mental Health Review Board who has to appoint nominated representatives of mentally ill persons whereas till date no mental health review board has been constituted by the State authority under Section 73 of Mental Health Care Act, 2017. It is the board to whom the applications for the appointment of nominated representatives as well as other applications for the welfare of the mentally ill persons are to be moved but as above said till date it is not functional and yet to be constituted, so in this circumstances Smt. Seema Gupta and other similar situated persons are unable to get their guardians as well as manager of their moveable and immoveable properties and consequently their welfare and maintenance have been stalled. In the new Act 2017 various rules and regulations are required to be made to carry out the purpose of the act and that will take a lot of time which can cause various problems and sufferings to the mentally ill persons who are having sufficient sources and possessing various moveable and immoveable properties and are unable to reap its fruits because of the absence of provision pertaining to appointment of guardians and manager of properties as well as non-constitution of the Medical Board laid down in the Mental Health Care Act, 2017; (viii) that the State is duty bound to constitute mental health review boards as well as rules and regulations pertaining to the appointment of guardian and managers of moveable and immoveable properties of mentally ill person as was incorporated under Section 52 of the earlier Act i.e. Mental Health Act, 1987 for proper maintenance and welfare of the mentally ill persons. Without rules and regulations and without mental health review board the mentally ill persons are unable to get the proper welfare and maintenance because they are totally debarred from their moveable and immoveable properties being owned and possessed by them. The new legislation is totally incomplete without rules and regulations, Mental Health Review Board and also without provision for appointment of guardian and manager of moveable and immoveable property of mentally ill persons; (ix) that since 2012 when Seema Gupta fell ill the petitioner has spent more than Rs. The new legislation is totally incomplete without rules and regulations, Mental Health Review Board and also without provision for appointment of guardian and manager of moveable and immoveable property of mentally ill persons; (ix) that since 2012 when Seema Gupta fell ill the petitioner has spent more than Rs. 25.00 Lacs for the welfare and maintenance of Smt. Seema Gupta from his own resources and at present it is not possible to spend the amount by the petitioner from his own pockets because he is also having major daughters who are having the marriageable age and moreso, as above said Seema Gupta is already having her own resources of money which can be spent over her if petitioner is made her guardian and manager of her properties including bank account being operated in respondent No. 3; (x) that Smt. Seema Gupta and other similar situated persons are having a fundamental and legal right to live a dignified life like other persons but due to the promulgation of this Mental Health Care Act, 2017 they are totally unable to lead a dignified life because they have been deprived to take advantage of their own properties as there is no provision incorporated in the new act for the appointment of guardian and manager of their moveable and immoveable properties. Without guardian and manager the properties of mentally ill persons can't be used and they are totally unable to take the benefit of their own properties because they are themselves unable to make a rational judgment and take decisions. 3. Learned counsel for the petitioner has brought on record a copy of the order passed by the learned Additional District Judge, Jammu with regard to an almost similar matter, which has been dealt in pursuance of the directions passed by this Court in OWP No. 1090/2017 captioned Prof. Bansi Lal Koul Vs. Union of India & Anr. decided on 25.08.2017. Learned counsel for the petitioner has accordingly prayed that an appropriate order may be passed in the instant petition in the light of the direction passed in said OWP, which would enable the petitioner to act as guardian/manager of property of mentally ill person namely Seema Gupta, wife of the petitioner. 4. Mr. Sudesh Magotra, learned Dy. AG appearing vice Mr. Vishal Bharti, learned Dy. 4. Mr. Sudesh Magotra, learned Dy. AG appearing vice Mr. Vishal Bharti, learned Dy. AG on behalf of respondent No. 2 has stated that no information of the constitution of the Board, i.e., "Mental Health Review Board as defined under Section 73 of the Mental Health Act, 1987 is available with him. 5. The documents annexed with the petition in the shape of medical prescriptions/certificates reflect the disease/disability of Smt. Seema Gupta wife of the petitioner. In one of the certificate issued on 11.11.2016 by the Government Medical College, Jammu, it is certified that “Smt. Seema Gupta, W/o Sh. Suresh Gupta (petitioner herein) is suffering from 'Recurrent Stroke' since September 2012 and the said disease is a 'Life Consuming disease'” whereas, another document dated 19.10.2016 issued by the office of the Chairman, Standing Medical Board, Govt. Medical College & Associated Hospitals, Jammu, it is reflected "that the patient Seema Gupta is suffering from Hypertension, Hypothyroidism with right sided hemiparesis with left MCA infarct, right hemiparesis with left ICH and AF with CVR on anticoagulation. She needs to continue drugs and regular follow-up in the Cardiology and Neurology OPDs. She is able to take care of self but needs help in certain activities." 6. In terms of Section-2(L) of the Mental Health Act, 1987, definition of mentally ill person is: "a person who is in need of treatment by reason of any mental disorder other than mental retardation." Whereas, in the new Act of 2017, mental illness is defined in terms of Section-2(s) as; "a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterized by sub-normality of intelligence." 7. On consideration of the respective contentions and the material available before me, it is manifest that at present there is no mechanism available for redressal of grievance of the present nature. Chapter-VI of the repealed Mental Health Act, 1987 provides for inquisition proceedings and appointment of guardian and manager of the property of mentally ill person. On consideration of the respective contentions and the material available before me, it is manifest that at present there is no mechanism available for redressal of grievance of the present nature. Chapter-VI of the repealed Mental Health Act, 1987 provides for inquisition proceedings and appointment of guardian and manager of the property of mentally ill person. The District court after recording a finding that the alleged mentally ill person is really so and is incapable of managing his property or capable of taking care of himself, had to make an order under Section 52 regarding appointment of guardian for management of his property and where the District court deemed fit, it could appoint under sub-section (1) same person to be the guardian and manager. Proper it may be herein to reproduce Sections 52, 53 & 54 of The Mental Health Act, 1987:- "52. Provision for appointing guardian of mentally ill person and for manager of property-(1) Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is in capable of taking care of himself and of managing his property, it shall make an order for the appointment of the Guardian under section 53 to take care of his person and of a Manager under section 54 for the management of his property. (2) where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is incapable of managing his property but capable of taking care of himself, it shall make an order under section 54, regarding the management of his property. (3) where the District Court records a finding that the alleged mentally ill person is not mentally ill, it shall dismiss the application. (4) where the district court deems fit, it may appoint under sub-section (1) the same person to be the guardian and the manager. 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 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 of any authority appointed by it in that behalf. 54. (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 of any authority appointed by it in that behalf. 54. [Appointment of manger for management of property of mentally ill person]-(1) Where the property of the Mentally ill person who is in capable 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 there upon not withstanding anything contained in such law, the Court of 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 situated, direct the Collector to take charge of the person and such part of the property or interest therein of 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. The co-ordinate Bench as referred hereinabove in OWP No. 1090/2017 has while taking note of the difficulty experienced in case of the mentally ill person directed the matter regarding appointment of guardian to be considered by the learned Additional District Judge, Jammu. It has been observed therein that: "...Learned counsel further demonstrates on behalf of the petitioner that the application for appointment of guardian (supra) was filed on 29.04.2017 in the court of Additional District Judge, Jammu. The court commenced proceedings in the application, constituted a Board for examination of the said lady and the Board submitted its report to the court vide No. GMC/2017/Spl.Med.Board/530, dated 25.05.2017 read with No. PSY/1007, dated 24.05.2017 (Annexure-C). The court commenced proceedings in the application, constituted a Board for examination of the said lady and the Board submitted its report to the court vide No. GMC/2017/Spl.Med.Board/530, dated 25.05.2017 read with No. PSY/1007, dated 24.05.2017 (Annexure-C). However, during the course of proceedings, it was notices that the Act of 1987 was repealed by a new Act enacted by the Parliament, called as Mental Health Care Act, 2017 (for short the Act of 2017). .......... A situation has thus, arisen where the petitioner has withdrawn the application filed in the court of learned Additional District Judge and there is no forum to hear the application. In this context, clause (f) of the repealing section 126(2) of the Act of 2017 is noticed and is extracted: '(f) any proceeding pending in any court under the repealed Act on the commencement of this Act may be continued in that court as if this Act had not been enacted.' Clause (f) no-doubt applies to the proceedings pending in any Court under the repealed Act, that is, Act of 1987. Admittedly, application in the court of Additional District Judge, Jammu was filed after the Act of 1987 had already repealed as the Act of 2017 came into force on 07.04.2017. Nonetheless, the proceedings had been commenced under the Act of 1987. To meet the peculiar situation arising due to repeal of the Act, 1987 and no Board under the Act, 2017 having been created, the only possible way out is that the learned Additional District Judge, Jammu is asked to deal with the matter and conclude the proceedings in the application filed by the petitioner in terms of Clause (f) of the Section 126(2) of the 2017 Act." 9. It is, however, conspicuous that the facts of the case covered in OWP No. 1090/2017 supra and the instant case are not quite similar. In the said case (OWP No. 1090/2017), the application has been presented earlier for appointment of guardian which could not be prosecuted due to repeal of the Act. The petitioner has not, as can be ex-facie summarily seen from the perusal of the averments of the petition, made an exercise for appointment of guardian under the earlier Act of 1987, which could have proved abortive due to repeal of the said Act. 10. The petitioner has not, as can be ex-facie summarily seen from the perusal of the averments of the petition, made an exercise for appointment of guardian under the earlier Act of 1987, which could have proved abortive due to repeal of the said Act. 10. Jurisdiction under Section 226 of the Constitution of India read with Section 103 of the Constitution of J&K may have to be, however, invoked considering the role of this Court where no remedy is provided for enforcement of any right. 11. In a judgment rendered by the Kerala High Court in Shobha Gopalakrishnan Vs. State of Kerala decided on 29.02.2019, with regard to issue of managing person or property of patient in 'comatose state', their lordships have enunciated:- "...Considering the role of this Court, jurisdiction under Article 226 of the Constitution of India springs up, when no remedy is provided under any Statute to persons like patients in 'comatose state'. It is something like 'parens patriae' jurisdiction. A reference to the verdict in Nothman vs. Barnet London Borough Council [1978 (1) WLR 220] (at 228) is also relevant. In such cases, it is often said, Courts have to do what the Parliament would have done. A reference to the verdict in Surjit Singh Karla vs. Union of India and another [ 1991 (2) SCC 87 explaining the principle of 'causes omissus' is also brought to the notice of this Court; to the effect that if it is an accidental omission, court can supply/fill up the gap. This Court however does not find it appropriate to "re-write" the provision, as it is within the exclusive domain of the Parliament. This is more so, when the relevant statutes like Mental Health Act, 1987 and PWD Act, 1995 came to be repealed, on introducing the new legislations, such as the Mental Health Care Act, 2017 and The Rights of persons with Disabilities Act, 2016 in conformity with the mandate of U.N. Convention, 2006. This Court does not say anything whether any amendment is necessary, also in respect of the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (National Trust Act, 1999) with reference to the U.N. Convention 2006. It is for the Government to consider and take appropriate steps in this regard, as it is never for the Court to encroach into the forbidden field. It is for the Government to consider and take appropriate steps in this regard, as it is never for the Court to encroach into the forbidden field. This Court would only like to make it clear that, in so far as the case of a patient lying in 'comatose state' is not covered by any of the statutes, (as discussed above), for appointment of a Guardian, the petitioners are justified in approaching this court seeking to invoke the power under Article 226 of the Constitution of India. It is declared accordingly. Coming to the incidental aspects; since no specific provision is available in any Statutes to deal with the procedure for such appointment of Guardian to a victim lying in 'comatose state', it is necessary to stipulate some 'Guidelines', based on the inputs gathered by this Court from different corners, as suggested by the learned counsel for the petitioners, the learned Government Pleader and also by the learned Amicus Curiae, till the field is taken over by proper legislation in this regard. This Court finds it appropriate to fix the following norms/guidelines as a temporary measure: (i) petitioner/s seeking for appointment of Guardian to a person lying in comatose state shall disclose the particulars of the property, both movable and immovable, owned and possessed by the patient lying in comatose state. (ii) The condition of the person lying in comatose state shall be got ascertained by causing him to be examined by a duly constituted Medical Board, of whom one shall definitely be a qualified Neurologist." 12. Forbearance on the part of the State to have parallel provision in operation for appointment of guardian of a mentally ill person can be held to be violative of Article 21 of the Constitution of India. Omission on the part of the Government by not taking steps for constitution of Mental Health Review Board, right of a said person, having meaningful and dignified life, stands obliterated. Right to life includes all those aspects of life which go to make a man's or woman's life meaningful, complete and worth living. Article 21 provides that: "21. No person shall be deprived of his life or personal liberty except according to procedure established by law." 13. In view of the same, writ of mandamus is granted whereby the respondents are directed to expedite process for constitution of Mental Health Review Board with reasonable promptitude. 14. Article 21 provides that: "21. No person shall be deprived of his life or personal liberty except according to procedure established by law." 13. In view of the same, writ of mandamus is granted whereby the respondents are directed to expedite process for constitution of Mental Health Review Board with reasonable promptitude. 14. There being evidently no scheme, mechanism or policy in force at present for appointment of guardian of a mentally ill person and manager of the property, the provisions of Sri Pratab Laws Consolidation Act need to be taken resort to overcome the difficulty experienced by the petitioner/his mentally ill wife. The application of broader principles of 'equity justice and good conscience' shall thus govern such situation as permitted by the said Act. Section-4 of the said Act provides :- "4. The application of broader principles of 'equity justice and good conscience' shall thus govern such situation as permitted by the said Act. Section-4 of the said Act provides :- "4. Laws in force.- (1) The laws administered and to be administered by the Civil and Criminal Courts of the State of Jammu and Kashmir are and shall, be as follows:- [(a) The Acts for the time being in force in Jammu and Kashmir State;] [(b) Orders, Hidayats, Ailans, Notification, Ishtihars, Circulars, Robkars, Irshads, Yadashts, State Council Resolution, Rules, Proclamations and Ordinances issued, passed, published or made by or under the authority of the Highness or by any other competent authority empowered to make and promulgate laws for the time being;] (c) the rules having the force of law made and promulgated under the provisions of any Act or law for the time being in force in the State of Jammu and Kashmir; (d) in question regarding succession, inheritance, special property of females, betrothals, marriage, divorce dower, adoption, guardianship, minority bastardy, family relations, wills, legacies, gifts, waqf, partitions, castes or any religious usage or institution, the rules of decision is and shall be the Mohammedan law in cases where the parties are Mohammedans and the Hindu Law in cases where the parties are Hindus, except in so far as such law has been, by this or any other enactment, altered or abolished or has been modified by any custom applicable to the parties concerned which is not contrary to justice, equity and good conscience and has not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority; (e) in questions relating to the Law of Torts, the State Courts shall follow, as far as practicable, the [Indian Law]. (2) In cases not otherwise specially provided for, the Courts shall act according to justice, equity and good conscience." 15. Accordingly till appropriate statutory provision is put in practice, it appears equitable in the ends of justice to have resort to a mechanism provided under Chapter-VI of the repealed Act (The Mental Health Act, 1987) for appointment of guardian of the mentally ill persons and manager of the property. Same would not be militative of any other provision of the new Act as no new policy or scheme has been put in practice under the Mental Health Care Act, 2017. Same would not be militative of any other provision of the new Act as no new policy or scheme has been put in practice under the Mental Health Care Act, 2017. On a liberal interpretation of Section 24 of the General Clauses Act too, it would be permissible. So, any person interested in the welfare of a person and property of mentally ill person should approach the Court/Authorities specified in Chapter-VI of the repealed Act of 1987 to the District Court where the mentally ill person resides or is having property, for appointment of guardian of a person and property of mentally ill person, which shall as far as practicable be gone into and dealt as per Chapter-VI of the repealed Act of 1987 by the said court/authority(s), till appropriate statutory mechanism indicated above is placed into service. 16. Accordingly, till appropriate scheme or statutory provision is brought into operation to take care of the vacuum created, it appears expedient to grant further relief in favour of the petitioner herein in the form hereinafter indicated. 17. The petitioner shall, as such, approach the District Court at Jammu headquarter having jurisdiction for appointment of guardian in other cases and empowered to entertain the petitions under repealed Act, which shall be accordingly entertained and disposed of by the said court. 18. Petition is disposed of accordingly.