09 February 2012
i want to file an application under sec. 50 of the mental health act, 1987. though there is a specific provision regarding jurisdiction under sec. 50, still the court requires a direct judgment on the jurisdiction point. Can you please help me immediately.
09 February 2012
The Lunacy (Supreme Courts) Act, 1958, gives power to those Courts to direct an inquiry as to "any person subject to the jurisdiction of the Court". The preamble of the Lunacy (Districts Courts) Act of the same year states that it is expedient to make better provisions for the case of the states of lunatics "not subject to the jurisdiction of the Supreme Courts of adJudicature". In 1981 the Allahabad high court decided that, under its own letters patent, it had no original jurisdiction in respect of the persons and estates of lunatics who were natives of India. In the course of that case, the Court ascertained from the Registrar of the original side of the Calcutta High Court that at that date its powers in the matters of lunacy as the successor and inheritor of the powers of the old Supreme Court were, as regards natives of India, only exercised within the limits of the town of Calcutta itself, and that in other respects the procedure directed by the Lunacy (District Court) Act, 1958,was followed in Lower Bengal. The Court expressed the view that this practice was correct. The Lunacy Act, 19121 repealed both the Acts of 1958, but made no alteration in the law with regard to the matter now under consideration.
For a person to come under that chapter he must be not subject to the jurisdiction of a High Court, and must be resident within the jurisdiction of a District Court. The question of jurisdiction was considered in Anila Bala Chowdhurani V. Dhirendra Nath Saha2 where it was held that the jurisdiction of the Pabna District Court was ousted because the alleged lunatic (an Indian) resided both at Pabna and at Calcutta, but it is clear from that case that, but for his residence at Calcutta, the Pabna District Court would have had jurisdiction and the original side of the Calcutta High Court would not. In in re Taruchandra Ghosh,3 the Court held that, under Cl. 17 of the Charter, the Court had power to appoint a guardian of an Indian infant resident outside the original jurisdiction. The order was made ex parte on the father's application, it being stated there was no opposition.The attention of the Court was not drawn to 13 Geo. 3, c. 63, nor to the cases referred to above. Moreover, the language of Cl.25 of the Charter of 1774 as regards infants, differs from its language as regards lunatics. The original side of the Calcutta High Court has no jurisdiction to direct an inquisition or appoint a guardian of person or property in the case of an Indian not resident in Calcutta4.
09 February 2012
The jurisdiction of the Lunacy Court depends on normal residence of the alleged lunatic and not on his temporary residence except in the cases of the High Courts of Calcutta, Madras and Bombay where different rules are applicable under the Charters and Letter Patent. The principles of residence are clearly laid down by a Bench of three learned Judges consisting of Sir Ashutosh Mookerjee, Acting Chief Justice, and Fletcher and Richardson, JJ. In Anila Bala Choudhurani V. Dhirendra Natha Saha1. That decision is an authority on the proposition that Sec. 38 of the Lunacy Act does not define the test to be applied to determine whether a person is or is not subject to the jurisdiction of the High Court for the purpose of judicial inquisition as to lunacy. But the proceedings are directed primarily against the person and only secondarily against his property. Such authority over the person may, unless otherwise directed by statute, be ordinarily exercised in the case of residents within the local limits of the jurisdiction of the Court. No doubt it may also be exercised over non-residents, if there is statutory provision to that effect. The third proposition laid down by this decision is that before a District Court can institute inquisition of a person possessed of property and alleged to be a lunatic it must be established not merely that such person is residing within the jurisdiction of that Court but also that he is not subject to the jurisdiction of any of the High Courts mentioned in Sec. 37 of the Lunacy Act. Therefore, in a case where an alleged lunatic is subject to the jurisdiction of a High Court under Sec. 37, the District Court has no jurisdiction under Sec. 62, even though the person may reside within the local limits of the jurisdiction of the District Court. In other words, the jurisdiction of the High Court and District Court are not concurrent, but the jurisdiction of the High Court excludes that of the District Court; although if the alleged lunatic resides in two districts, the jurisdiction of the two Courts are concurrent and not mutually exclusive2.
09 February 2012
You can very well file an application u/s 50 of MH Act before a District court having territorial jurisdiction. You have not mentioned in which court you are filing/have filed.
District court has been defined under CPC and it alone has jurisdiction. What is expressly and unambiguously sated in the Act in clear terms never requires any precedent. Just file the petition and if it is without jurisdiction, the court has to return it u/o 7 rule 10 of CPC. It can not do so becaues, its jurisdiction is not ousted in any way.