Five months after the Delhi High Court criticised the conduct of a trial court in moving slowly on a petition of a man seeking permission to sell off property of his mentally-ill younger brother to meet his medical expenses, the District and Sessions judge (headquarters) has instructed all judicial officers to decide all such petitions within 90 days.
An order issued by District & Sessions judge Talwant Singh said, “Pursuant to the directions of the High Court of Delhi and in terms of section 77 of the Mental Health Act, 1987, it is ordered that the inquiry under the Mental Health Act, 1987, be completed ordinarily within 90 days and in the event of unavoidable circumstances, within six months.”
The order follows the judgment delivered by Justice JR Midha on February 13, 2017, in an appeal titled Bhagwan versus State & Ors.
Justice Midha was critical of the manner in which the trial court had kept pending for two years the petition moved by Bhagwan, who was hard-pressed for money to maintain his mentally retarded brother Mukesh. He had, as is necessary under the Mental Health Act, sought permission to sell off the part of the agricultural land in the name Mukesh, who he was maintaining, as he was unable to bear the rising expenses.
Justice Midha had also called for record of all such pending cases and directed that all like cases should ordinarily be decided within 90 days.
The Mental Health Act was enacted on May 22, 1987, and provides for matters relating to the treatment and care of mentally ill persons, to make better provision with respect to their property and affairs.
Section 59 requires any person managing the property of the mentally ill person to seek permission of the District Court before selling off, mortgaging or transferring or leasing out the property of such person.
In the instant case, on January 11, 2013, Bhagwan, the elder brother of Mukesh, filed a petition before the trial court for permission to transfer property of Mukesh under Section 59 of the Mental Health Act, 1987.
He stated in the petition that Mukesh suffers from 75 per cent mental retardation and that he has been looking after him. A copy of the disability certificate dated August 13, 1999, issued by the Medical Board of Safdarjang Hospital assessing the permanent disability of Mukesh as 75% due to severe degree of mental retardation was annexed.
Bhagwan told the trial court that he has been appointed as guardian for maintenance, residential care and management of properties of Mukesh by the Deputy Commissioner, North-West, in 2006.
He said he has been taking care of Mukesh from the income generated from the one-seventh share Mukesh has in the agricultural land, but the expenses of maintenance has increased and the income from the agricultural land is not sufficient to bear the medical needs and therefore, he be permitted to sell the agricultural land.
The trial court took up the petition on May 16, 2003, when Mukesh was asked some questions but was unable to even respond. He was then directed to be examined by a board of doctors at IBHAS, which certified in November 2013, that Mukesh suffered from severe mental retardation with speech impairment and was unable to take care of self and property.
Thereafter, the petition dragged and was kept pending with several adjournments. In August 2014, the trial court called upon Bhagwan to satisfy the jurisdiction to grant permission to sell the property outside Delhi.
On April 28, 2015, the trial court dismissed the petition on the ground of lack of territorial jurisdiction as well as on merits.
When Bhagwan came in appeal before the high court, the bench said, “This petition warranted expeditious hearing considering that the appellant had no means for sustenance of respondent No.7 (Mukesh). However, the record shows that the Trial Court proceeded with the matter as a regular trial and the proceedings remained pending from 11th January, 2013 to 28th April, 2015.”
“This Court is of the view that the proceedings under the Mental Health Act, 1987 are in the nature of an inquiry and expeditious hearing is warranted in the inquiry proceedings… This Court is of the view that the inquiry under the Mental Health Act, 1987, should be completed ordinarily within 90 days and in the event of unavoidable circumstances, within 6 months.
“It would, therefore, be appropriate for the Principal District Judge to frame the regulations to prescribe the procedure for conducting the inquiry within a fixed time frame under Section 77 of Mental Health Act, 1987. The Principal District Judge is directed to ascertain the number of cases pending under Mental Health Act, 1987, and place the data before this Court within 8 weeks from today,” Justice Midha had said.
“Copy of this Judgment be sent to Principal District Judge who shall circulate it to the District Judges and Courts dealing with the cases under Mental Health Act, 1987,” he had ordered.