Petition No.142 of 2003 & Mental Health Petition 9 of 2003 & Land Acquisition Reference 58 of 1987 M H A Petition 2 of 2004. Case: Allan Sebastian Dsouza Vs Sarojini A Kunder Of Bombay. High Court of Bombay (India)
| Case Number | Petition No.142 of 2003 & Mental Health Petition 9 of 2003 & Land Acquisition Reference 58 of 1987 M H A Petition 2 of 2004 |
| Counsel | A V Mirashi, Sanghvi, Shah, Snehal Paranjape |
| Judges | Rebello, J. |
| Issue | Bombay City Civil Court Act, 1948 - Section 3; Mental Health Act, 1987 - Sections 96, 53, 2(B), 76 |
| Judgement Date | March 20, 2006 |
| Court | High Court of Bombay (India) |
Judgment:
A learned single Judge of this Court in M. H. Petition No. 2 of 2002 (Shri Umesh Narayan Gokhle v. Shri Ajid M. Mankar) decided on 21. 2. 2002 took the view that under the provisions of the Mental Health Act, 1987 (hereinafter referred to as the "act"), it is the City Civil Court which is the District Court within the meaning of section 2 (b) of the Act.
This judgment was noted by another learned Judge (S. C. Dharmadhikari,j.) in Petition No. 142 of 2003 In Mental Health Petition No. 9 of 2003 In Land Acquisition Reference No. 58 of 1987. In his order dated 6. 8. 2004, Dharmadhikari, J. took the view the District Court as defined under section 2 (b) of the Act is the High Court in exercise of its ordinary original civil jurisdiction and referred the matter to the learned Chief Justice for assigning the matter to a larger Bench. That is how the matters are placed before us for our consideration.
The limited issue, therefore, is whether the City Civil Court constituted under the provisions of the Bombay City Civil Court Act, 1948 or the High Court in exercise of its ordinary original civil jurisdiction is the District Court for the purpose of the Act.
To consider the discussion, we may gainfully note some of the provisions of the Act which are relevant for the purpose of disposing of the issue arising herein. Section 2 (b) of the Act reads as under:-
"(b) "district Court" means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which the State Government may, by notification, specify as the court competent to deal with all or any of the matters specified in this Act;" In comparison, under the provisions of the Indian Lunacy Act, 1912, District Court under section 3 (3) was defined as under:-"3 (3) "district Court" means the principal Civil Court of original jurisdiction in any area outside the local limits for the time being of the presidency-towns;" section 53 of the Act reads as under:-
"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 the 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 or of any authority appointed by it in that behalf. " Section 76 of the Act reads as under:-"76. Appeals.-- An appeal shall lie to the High Court from every order made by a District Court under this Chapter. " section 96 of the Act reads as under:-
"96.effect of Act on other laws. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force and to the extent of such inconsistency that other law shall be deemed to have no effect. "
At this stage, we may note Clause 17 of the Letters Patent of this Court which reads as under:-
"Clause17. Jurisdiction as to infants and lunatics: And we do further ordain that the said High Court of Judicature at (Madras), (Bombay), Fort William in Bengal shall have the like power and authority with respect to the persons and estates of infants, idiots and lunatics within the Presidency of (Madras), (Bombay), Bengal Division of the Presidency of Fort William as that which was vested in the said High Court immediately before the publication of these presents. "
Before the Act had come into force, the law applicable was the Indian Lunacy Act, 1912. This Act came to be repealed by the Act of 1987. J. A. Patil, J. in Shri Umesh Narayan Gokhles case took the view that the Bombay High Court was the principal Civil Court of original jurisdiction for the purpose of the Act of 1912 and as such was the District Court, but the Act of 1987 has resulted in the position undergoing a complete change as the District Court is defined as the City Civil Court in an area where there is such Court. The learned Judge further held that the...
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