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Kanhaiya Lal vs State Of Rajasthan on 11 February, 2020

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 17914/2019

Kanhaiya Lal S/o Late Lakhpat Ram, Aged About 37 Years, By
Caste Panwar (Mali), R/o Near Gherulalji Ka Kunwa, Jassolai
Tallai, Bikaner (Raj.)

—-Petitioner
Versus

1. State Of Rajasthan, Through The Director, Directorate Of
Pension And Pensioners Welfare, Jaipur (Raj.)

2. Joint Director, Medical And Health Services Zone, Bikaner
(Raj.)

3. Additional Director, Pension And Pensioners Welfare
Department, Bikaner (Raj.)

4. Assistant Director, Pension And Pensioners Welfare
Department, Bikaner (Raj.)

5. Gavra Devi W/o Shyam Gehlot, Naya Shahar, Behind Mm
Ground, Bikaner (Raj.)

6. Sannu Devi W/o Shivnarayan Gehlot, Naya Shahar,
Behind Mm Ground, Bikaner (Raj.)

7. Santosh W/o Sudhir Tanwar, Mudiya Mali Mohalla, Behind
City Kotwali, Near Naya Kunwa, Bikaner (Raj.)

—-Respondents

For Petitioner(s) : Mr. Surendra Thanvi
Mr. Vivek Firoda
For Respondent(s) :

HON’BLE MR. JUSTICE ARUN BHANSALI

Order

11/02/2020

This writ petition has been filed by the petitioner aggrieved

against order dated 24.09.2018 (Annexure-3) passed by

respondent No. 4, whereby, the respondents have required the

petitioner to produce a valid guardianship certificate qua his

brother Ghanshyam Panwar for grant of family pension to him.

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(2 of 4) [CW-17914/2019]

It is claimed that the petitioner’s brother Ghanshyam Panwar

is suffering from multiple disability and mental illness, which is

reflected from the certificate dated 27.06.2018 (Annexure-1)

issued by the competent authority.

Father of the petitioner Mr. Lakhpat Ram retired on

31.10.2004 and died on 26.01.2008. Whereafter, his mother was

getting family pension, who also died on 30.03.2018.

When the petitioner Kanhaiya Lal filed application with the

respondents that as Ghanshyam Panwar, his brother and son of

deceased Lakhpat Ram is mentally ill and was dependent on the

pension received by his mother and there was no other source of

income, the family pension be continued to be paid to him, the

application, which was forwarded to the Pension Department, the

same was responded vide Annexure-3 requiring a valid

guardianship certificate qua Ghyanshyam Panwar, as he was

claimed to be mentally ill and thereafter the case be sent back to

the department.

For the said purpose, the petitioner approached the Family

Court, Bikaner under Section 8 of the Guardians and Wards Act,

1890.

The application was returned by the Family Court vide its

order dated 21.08.2019 (Annexure-5) indicating that as the

provisions of Mental Health Act, 1987 stood repealed and in the

Mental Healthcare Act, 2017 there was no provision for according

guardianship, the petition was not maintainable.

Learned counsel for the petitioner made submissions that the

powers of this Court under Article 226 of the Constitution of India

can be invoked for the purpose of appointment of guardian.

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(3 of 4) [CW-17914/2019]

Reliance has been placed on judgment in Shobha Gopalkrishnan

Ors. v. State of Kerala Ors. : 2019 (1) KLT 801.

I have considered the submissions made by learned counsel

for the petitioner and have perused the material available on

record.

As the prayer made by the petitioner pertains to the

appointment of guardian for his physically challenged (mentally ill)

brother, the said power can be exercised by the authority under

the provisions of The National Trust for Welfare of Persons with

Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities

Act, 1999 (‘the Act of 1999’).

Under the Act of 1999 provisions of Section 14 deal with

appointment of guardian wherein a parent of a person with

disability or his relative may make an application to the local level

committee for appointment of any person of his choice to act as a

guardian of the person with disability.

The term ‘multiple disability’ has been defined under Section

2(h) of the Act of 1999 as meaning a combination of two or more

disabilities as defined in clause (i) of Section 2 of the Persons with

Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995 (‘the Act of 1995’).

Though the Act of 1995 has been replaced by the Rights of

Persons with Disabilities Act, 2016, however, in the Act of 1995

under Section 2(i)(viii) ‘disability’ inter alia means ‘mental illness’

and as the certificate (Annexure-01) issued to the petitioner’s

brother indicates his disability as multiple disability/mental illness,

the case would be governed by provisions of the Act of 1999 and

the petitioner can approach the local level committee for

appointment of guardian under the said Act.

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(4 of 4) [CW-17914/2019]

The petitioner may approach the competent authority under

the Act of 1999 and if an application is filed, the same may be

dealt with by the said authority appropriately and most

expeditiously.

With the above observations and directions, the writ petition

filed by the petitioner stands disposed of.

(ARUN BHANSALI),J

197-AK Chouhan/-

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