Sunilkumar, son of late Mudakodi Chandrashekara Menon and late Mullappilli Kamalamma is a mentally retarded person. Certain items of properties were obtained by Chandrashekara Menon and Kamalamma from their respective tarwards. Chandrashekara Menon died on 23.1995; the mentally retarded person was being looked after by his father till his death. It may also have to be mentioned that Kamalamma, the mother of Sunilkumar developed some mental illness after giving birth to Sunilkumar and she was also looked after by her husband. After the death of Chandrashekara Menon, one Govindankutty Menon was looking after the person and properties of Kamalamma and Sunilkumar. He filed OP(MH) 429/2005 before the District Court, Ernakulam for appointing him as guardian of Sunilkumar. In fact the said application was filed by Govindankutty Menon for appointing him as guardian of Kamalamma also. Another person, a stranger to the family claiming to be a close friend of late Chandrashekara Menon filed OP(MH).394/95 before the same court for the same purpose. The application filed by the stranger was dismissed and the matter was taken up in appeal before this court in MFA.No.1316/99. The appeal was dismissed. By Ext.P2, the application filed by Govindankutty Menon was allowed and he was appointed as the guardian. Later Govindankutty Menon died and Narayanankutty Menon, s/o.Govinda Menon, the maternal uncle of Sunilkumar filed OP(MH)323/2006 before the District Court, Ernakulam, for appointing him as guardian of the mentally retarded person and for managing the property. By Ext.P3 judgment the District Court found that the OP is not maintainable under the provisions of the Mental Health Act and dismissed the same giving liberty to the petitioner to file appropriate application before appropriate forum under the provisions of the Act applicable to mentally retarded persons. The said view was confirmed by the Division Bench of this court in MFA.18/2008, but without prejudice to the right of the petitioner to seek his remedies elsewhere. It is thereafter that the instant petition under Article 226 of the Constitution has been filed by Narayanankutty Menon praying for the following reliefs:

a) to pass an order appointing the petitioner as guardian of the person and manager of the properties of Sri.Sunilkumar, the mentally retarded person.

b) in the alternative to hold that the Mental Health Act 1987 is void and unconstitutional and violative of Article 14 of the Constitution of India and that the Lunacy Act revives.

c) to pass such other writs, order or directions which this Honourable Court deems fit to grant."

2. Pursuant to the interim order passed by this court on 27.2008, the District Collector forwarded a report to the Registrar (Judicial). The relevant portion of the report reads as follows:-

"It is hereby reported that Sri.Narayanankutty Menon, except he is 64 years of old, having good financial background and he is also having privilege of a uncle to protect Sri.Sunilkumar".

3. I heard learned counsel for the petitioner Sri.K.P.Balasubramanian and the learned Government Pleader.

4. I entertained a doubt as to whether a petition under Article 226 of the Constitution could be maintained for the above mentioned reliefs. Learned counsel for the petitioner submits that the Mental Health Act excludes from its purview mentally retarded persons. The said Act only provides for mentally ill persons. There are provisions in the said enactment for appointment of a guardian for the person and manager for the property of a mentally ill person and not for a mentally retarded person. Two other legislations have been brought in for the benefit of mentally retarded persons. Both the aforementioned enactments are for the welfare of the mentally retarded persons. But they do not contain any provision for appointing a person as guardian for a person and property of a mentally retarded individual. Appointment of any person as guardian obviously involves a