The repeal of the Mental Health Act 1987 prevents the District Court from appointing a guardian for a mentally challenged person, necessitating adherence to the National Trust for Welfare of Persons with Disabilities Act, 1999.

ORDER :

(R. VIJAYAKUMAR, J.)

The revision petition has been filed by the petitioner in an unnumbered MHOP.SR.No.5732 of 2024 on the file of the Principal Sessions Court, Pudukkottai challenging the order of return dated 14.10.2024.

2.A perusal of the said petition reveals that it has been filed under Sections 51, 52, 53 , 54 and 61 of Mental Health Act 1987. As per the averments in the petition, one Mrs.Saraswathi and her husband Srinivasan had passed away on 01.01.2008 and 25.04.2024 respectively leaving behind three sons, four daughters as their legal heirs. Out of them, the sixth child namely Sri.S.Anantha Sayanam is alleged to be a mentally challenged person who is aged about 53 years. It is averred in the petition that he is being taken care of by his elder brother namely Sri.S.Nagarajan. The mentally challenged person is said to have shares in the four items of the property which are mentioned in the schedule. The District Collector, Pudukkottai is arrayed as one of the respondents and the other siblings of the mentally challenged person are also shown as respondents.

3.A prayer has been sought for, to appoint Mr.S.Nagarajan (elder brother of the mentally challenged person) as guardian for the person and property of Sri.S.Anantha Sayanam. This petition was returned by the Principal Sessions Court, Pudukkottai with the following endorsement.

“Returned:

(1) How this petition is maintainable to be explain.

(2)The MHOP petition returned as per order of the Hon'ble Madras High Court O.P.No.731 of 2021 dated 27.01.2022.

Hence the MHOP returned.

Time 3 days”

4.Challenging the said returned order, present civil revision petition has been filed.

5.According to the learned Senior Counsel appearing for the petitioner, the order of return has been passed erroneously relying upon the order passed by this Court in O.P.No.731 of 2021 dated 27.01.2022. According to the learned Senior Counsel, the Mental Health Care Act 2017, though has been repealed, the Hon'ble High Court has entertained the above said petition and has proceeded to appoint a guardian for the person or property of the mentally challenged person invoking the powers under Letter Patent Act 1865. In such circumstances, the District Court would continue to exercise its power under Mental Health Act 1987 and therefore, the order of return passed by the Court is not maintainable.

6.The learned Senior Counsel appearing for the petitioner had further contended that as per Section 6(b) of General Clauses Act , 1897, if any Act is repealed and a new enactment comes into force, unless a different intention appears, the repeal shall not affect so far repealed or anything duly done.

7.He had further relied upon Section 14 of National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act , 1999 ( Act 44 of 1999) and contended that as per Section 14(2) of the said Act, no application can be entertained by the Local Level Committee, unless the consent of the guardian of the disabled person is also obtained. Hence, according to the learned Senior Counsel only one of the brother has filed his application to appoint himself as a guardian of the mentally challenged person. The others have not come forward to give their consent. In such circumstances, the petitioner would not be in a position to approach the Local Level Committee as contemplated in Act 44 of 1999. Therefore, the District Court would continue to have its jurisdiction under the Mental Health Act 1987. Hence, the District Court, Pudukkottai may be directed to entertain the application and dispose of the same on merits after hearing other siblings of the mentally challenged person and the District Collector of Pudukkottai.

8.Per contra, the learned Special Government Pleader appearing for the first respondent has submitted that the Mental Heath Act 1987 has been repealed by the Mental Health Care Act 2017. In such circumstances, the application under Mental Health Act 1987 cannot be filed.