# Saurabh Mishra v. State of U.P. & Ors

- **Citation:** (2025) 5 ILRA 1478
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-27
- **Case number:** Writ C No. 10898 of 2024
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurabh-mishra-v-state-of-u-p-ors-53502
- **Pages:** 9

## Headnote

Civil Law - Mental Healthcare Act, 2017 -
Sections 2(za) & 14 - Rights of Persons
with Disabilities Act, 2016 - Nominated
representative of a person with mental
illness - Section 14(4) of MH Act, 2017
enumerates five different categories of
persons, who can be appointed, in case no
nominated representative is appointed by
a person under Section 14(1) of MH Act,
2017 - There is no criteria or suitability
and also there is no mechanism provided
under the MH Act, 2017 for appointment
of a representative to take care of such
intellectually challenged persons or their
asset.
This
legal
vacuum
has
been
considered by the Courts and each time,
the Courts had exercised its parens
patriae jurisdiction while appointing a
representative or a guardian under the MH
Act, 2017. While exercising parens patriae
jurisdiction, Courts have to apply the
"wills and preferences" of the individual.
The
"wills
and
preferences"
of
the
intellectually challenged person have to
be determined either in the background of
advance directives as stated hereinabove
or in the absence of advance directives, it
ought to be guided by the factors which
point towards the 'wish & intent' of the
said mentally ill person. (Para 13, 14, 15)

B. Constitution of India, 1950 -Article 226
- Examination of the validity of order -
When a statutory functionary makes an
order based on certain grounds, its
validity must be judged by the reasons so
mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit
or by a reply, otherwise, an order bad in
the beginning may, by the time it comes
5 All. Saurabh Mishra Vs. State of U.P. & Ors.
1479
to Court on account of a challenge, get
validated by additional grounds later
brought
out
by
the
said
statutory
functionary. In the instant case, Board
rejected the application on the ground
that the petitioner had a criminal history
of two cases. Court rejected the additional
explanation of the Board asserted in the
counter
affidavit
that
the
offences
appeared to be involving moral turpitude.
(Para 9)

C. Moral Turpitude - Meaning - The term
'moral turpitude' is not defined under the
law - It refers to instances where an
individual indulges in acts which are
against morality, integrity, and ethics.
Courts have identified offences involving
moral
turpitude
to
include
financial
misappropriation, criminal breach of trust,
theft, sexual misconduct, etc. and refers
to conduct which is inherently base, vile,
or depraved - In the instant case, criminal
cases registered against petitioner under
Sections 143, 341, 323, 332 I.P.C., Section
7 of the Criminal Law (Amendment) Act,
2013 and Section 6/11 of the United
Provinces Special Powers Act. Court took a
holistic view and was of the considered
view that the offences alleged do not
involve any offence of moral turpitude.

D. In the instant case the opposite party
no.4
was
suffering
from
intellectual
disability. Petitioner, a close relative
(Nephew) of opposite party no.4, looking
into the pathetic condition of the opposite
party no.4, decided to take responsibility
of the opposite party no.4, for which other
family
members
had
no
objection.
Petitioner moved an application before the
Board u/s 14 of the MH Act, 2017, seeking
his
nomination
as
a
representative/
prabandhak to take care of the opposite
party no.4 and her property. Mansik
Swasthya Punarvilokan Board rejected the
application
on
the
ground
that
the
petitioner had a criminal history of two
cases. Held : A relative as defined under
Section 2(za) of the MH Act, 2017 means
any person related to the person with
mental illness by blood, marriage or
adoption. Petitioner was a close relative of
opposite party no.4 being her nephew and
there was 'No Objection' from other
relatives
to
his
nomination
as
her
representative and even the concerned
Tehsildar has reported that opposite party
no.4 is under the care of the petitioner.
Court
exercising
parens
patriae
jurisdiction appointed the petitioner

## Text

1478 INDIAN LAW REPORTS ALLAHABAD SERIES
19. A perusal of the order shows
that the Commission has passed the
impugned order in a cursory manner and
the efforts taken by it are not reflected from
the impugned order. It shows that merely in
a mechanical and mechanical manner, the
order has been passed. As per Act, 2005,
when the Commission receives an appeal
from any informant, it issues notice to the
officer concerned and fixes dates and
when he fails to respond, penalty is
imposed. But it ignores the fact that
though the Commission has wide powers
to get the information under Section 19 of
the Act, 2005 and provide it to the
informant, yet it has failed to invoke the
appellate powers for serving the real
purpose of the Act, 2005. The order of
penalty is deterrent but the real object of
the Act lies in furnishing the information
prayed, for which, no steps were taken by
the Appellate Authority.

20. For the reasons stated above,
the writ petition is A and the impugned
order dated 24.02.2025 is set aside, except
the punishment imposed against respondent
No.2 and the matter is remitted to the
Commission for deciding the appeal afresh.
We make it clear that we have not delved
into the observations made against the
respondent No.2. However, we direct the
Commission to put its best efforts to obtain
the requisite information from the Officer
concerned and provide it to the petitioner at
the earliest
----------
(2025) 5 ILRA 1478
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.05.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.
Writ C No. 10898 of 2024

Saurabh Mishra ....Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Surendra Singh

Counsel for the Respondents:
C.S.C.

Civil Law - Mental Healthcare Act, 2017 -
Sections 2(za) & 14 - Rights of Persons
with Disabilities Act, 2016 - Nominated
representative of a person with mental
illness - Section 14(4) of MH Act, 2017
enumerates five different categories of
persons, who can be appointed, in case no
nominated representative is appointed by
a person under Section 14(1) of MH Act,
2017 - There is no criteria or suitability
and also there is no mechanism provided
under the MH Act, 2017 for appointment
of a representative to take care of such
intellectually challenged persons or their
asset.
This
legal
vacuum
has
been
considered by the Courts and each time,
the Courts had exercised its parens
patriae jurisdiction while appointing a
representative or a guardian under the MH
Act, 2017. While exercising parens patriae
jurisdiction, Courts have to apply the
"wills and preferences" of the individual.
The
"wills
and
preferences"
of
the
intellectually challenged person have to
be determined either in the background of
advance directives as stated hereinabove
or in the absence of advance directives, it
ought to be guided by the factors which
point towards the 'wish & intent' of the
said mentally ill person. (Para 13, 14, 15)

B. Constitution of India, 1950 -Article 226
- Examination of the validity of order -
When a statutory functionary makes an
order based on certain grounds, its
validity must be judged by the reasons so
mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit
or by a reply, otherwise, an order bad in
the beginning may, by the time it comes
5 All. Saurabh Mishra Vs. State of U.P. & Ors.
1479
to Court on account of a challenge, get
validated by additional grounds later
brought
out
by
the
said
statutory
functionary. In the instant case, Board
rejected the application on the ground
that the petitioner had a criminal history
of two cases. Court rejected the additional
explanation of the Board asserted in the
counter
affidavit
that
the
offences
appeared to be involving moral turpitude.
(Para 9)

C. Moral Turpitude - Meaning - The term
'moral turpitude' is not defined under the
law - It refers to instances where an
individual indulges in acts which are
against morality, integrity, and ethics.
Courts have identified offences involving
moral
turpitude
to
include
financial
misappropriation, criminal breach of trust,
theft, sexual misconduct, etc. and refers
to conduct which is inherently base, vile,
or depraved - In the instant case, criminal
cases registered against petitioner under
Sections 143, 341, 323, 332 I.P.C., Section
7 of the Criminal Law (Amendment) Act,
2013 and Section 6/11 of the United
Provinces Special Powers Act. Court took a
holistic view and was of the considered
view that the offences alleged do not
involve any offence of moral turpitude.

D. In the instant case the opposite party
no.4
was
suffering
from
intellectual
disability. Petitioner, a close relative
(Nephew) of opposite party no.4, looking
into the pathetic condition of the opposite
party no.4, decided to take responsibility
of the opposite party no.4, for which other
family
members
had
no
objection.
Petitioner moved an application before the
Board u/s 14 of the MH Act, 2017, seeking
his
nomination
as
a
representative/
prabandhak to take care of the opposite
party no.4 and her property. Mansik
Swasthya Punarvilokan Board rejected the
application
on
the
ground
that
the
petitioner had a criminal history of two
cases. Held : A relative as defined under
Section 2(za) of the MH Act, 2017 means
any person related to the person with
mental illness by blood, marriage or
adoption. Petitioner was a close relative of
opposite party no.4 being her nephew and
there was 'No Objection' from other
relatives
to
his
nomination
as
her
representative and even the concerned
Tehsildar has reported that opposite party
no.4 is under the care of the petitioner.
Court
exercising
parens
patriae
jurisdiction appointed the petitioner as
the
nominated
representative
of
opposite party no.4, to take all decisions
in respect of the affairs of the opposite
party
no.4
including
her
medical
treatment,
healthcare,
daily
living,
financial affairs, to deal with all the
movable and immovable assets of the
opposite party no.4, including the family
pension however, Court restrained him
from the transfer of immovable assets,
without the prior approval and consent
of the 'Mansik Swasthya Punarvilokan
Board'. (Para 13)

Allowed. (E-5)

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1)
Heard
Shri
Surendra Singh,
learned counsel for the petitioner and
learned
Standing
Counsel
for
the
State/respondents no. 1 to 3.

(2) The petitioner has invoked the writ
jurisdiction of this Court, seeking direction to
quash the impugned order dated 16.11.2024
passed by the opposite party no.2-Mansik
Swasthya Punarvilokan Board, Barabanki
(hereinafter referred to as 'Board'), whereby
the application filed by the petitioner under
Section 14 of the Mental Healthcare Act, 2017
(hereinafter referred to as 'MH Act, 2017)
came to be rejected on the ground that the
petitioner had a criminal history of two cases,
therefore, the petitioner cannot be appointed as
a representative of opposite party no.4, who has
been suffering from intellectual disability.

(3) The fulcrum of the present case
is that father of opposite party no.4 was
1480 INDIAN LAW REPORTS ALLAHABAD SERIES
working as a Noter and Drafter in
Madhyanchal
Vidyut
Vitran
Nigam
Limited at Ayodhya region and while
working in the same capacity, he retired on
attaining
the
age
of
superannuation.
Thereafter, father of the opposite party no.4
was getting pensionary benefits from the
department till his death on 16.07.2021.
Prior to it i.e. on 09.09.2018, mother of the
opposite party no.4 already died.

(4) It is stated by the petitioner that
since opposite party no.4 was an unmarried
daughter and was suffering from Moderate
Intellectual
Disability
IQ-44
(VSMS)
(disability about 75% as per Disability
Certificate, Annexure-4), which is not
curable by way of the treatment, she
applied for family pension, which came to
be considered by the department and she
was granted Rs. 14,400/- towards family
pension to her on 17.02.2023 till her
marriage or death, whichever is earlier.

(5) According to the petitioner, he
is a close relative (Nephew) of opposite
party no.4 and looking into the pathetic
condition of the opposite party no.4, he
decided to take responsibility of the
opposite party no.4, for which other family
members have no objection. In this regard,
on 01.10.2024, the petitioner moved an
application before the Board under Section
14 of the MH Act, 2017, seeking his
nomination as a representative/ prabandhak
to take care of the opposite party no.4 and
her property. This application of the
petitioner was examined by the Board and
after due deliberations/considerations, the
Board opined that since two criminal cases
i.e. (i) Case Crime No. 129 of 2016, under
Sections 143, 341 I.P.C., Section 7 of the
Criminal Law (Amendment) Act, 2013 and
Section 6/11 of the United Providential
Special Power Act and (ii) Case Crime No.
292 of 2016, under Sections 143, 341, 323,
332
I.P.C.
and
7
Criminal
Law
(Amendment) Act, 2013, are pending and
the Station House Officer, Ramnagar had
not recommended character verification of
the petitioner, the claim of the petitioner to
nominate him as representative of the
opposite party no.4 was not appropriate and
accordingly, the Board had rejected the
application of the petitioner vide order
dated 16.11.2024. It is this order dated
16.11.2024, which has been assailed in the
present petition by the petitioner.

(6) It has been submitted by the
petitioner that petitioner's application came
to be rejected by the Board vide the
impugned order dated 16.11.2024 only on
the sole ground that the petitioner has a
criminal history of two cases. According to
learned Counsel, both the cases are pending
before the Court of Additional Chief
Judicial Magistrate, Barabanki and the
same are at a very nascent stage of
admission. Learned Counsel has submitted
that no person is held guilty until proven so
in a Court of law. He, therefore, prays that
impugned order violates the mandate of
Article 21 of the Constitution of India and
is liable to be quashed and the petitioner
may be appointed as the representative of
opposite party no.4 in the given facts and
circumstances of the case.

(7) On 20.12.2024, we have passed
the following order :-

 "Heard.

 Let learned Standing Counsel
satisfy the Court as to how the order
impugned is sustainable as prima facie
Susri
Ganga
Devi
resides
with
the
petitioner and is being looked after by him
as per the report of Tehsildar, Ramnagar,
5 All. Saurabh Mishra Vs. State of U.P. & Ors.
1481
Secondly, the legal heirs of Late Narayan
Sharma Mishra the husband of Susri Ganga
Devi have no objection and have given no
objection certificate. Therefore, merely
because two criminal cases are there that
too pertaining to offences which do not
appear to be heinous offences, we fail to
understand as to how the nomination of
petitioner as guardian of Susri Ganga Devi
could have been denied as that was being
sought only to facilitate receipt of pension
by Ganga Devi which could be utilized for
her welfare especially as it is undisputed
that Susri Ganga Devi resides with the
petitioner and is being looked after by him.
Therefore,
what
purpose
does
the
impugned
order
serve
we
fail
to
understand. In the facts of this case, we do
not see why we should relegate the
petitioner to remedy of appeal and further
increase the agony of private opposite party
who would
be
beneficiary
of
such
nomination. We see no necessity to issue
notice to opposite party no.4.

 List this case on 06.01.2025 as
fresh.

 Whatever affidavits are required
to be filed by the opposite parties be filed
before the next date."

(8) Apparently, pursuant to the
aforesaid order dated 20.12.2024, no
counter affidavit has been filed on behalf of
respondent
no.1-State/respondent
no.3District Magistrate, Barabanki, however,
the respondent no.2-Board has filed counter
affidavit, supporting the impugned order,
but in the same vein also admitting that
both criminal cases pending against the
petitioner were not heinous in nature. An
additional
ground
in
the
form
of
explanation has been appended in the
counter affidavit to say that application was
rejected as according to them the offences
appeared to be involving moral turpitude.

(9) First and foremost, this Court
finds
that
the
Board
having
been
constituted under Section 73 of the MH
Act, 2017 has passed the impugned order
by exercising its power under section 80
(2)(a) of the MH Act, 2017, which are
essentially statutory in nature. The law
relating to additional reasoning by a
statutory functionary at the time when the
impugned order is being tested, stands
settled in the well celebrated Constitutional
Bench judgment of the Apex Court
rendered in the case of Mohinder Singh
Gill
Vs.
The
Chief
election
Commissioner, New Delhi : 1978 (1) SCC
405, wherein the Constitutional Bench held
that when a statutory functionary makes an
order based on certain grounds, its validity
must be judged by the reasons so
mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or by
a reply, otherwise, an order bad in the
beginning may, by the time it comes to
Court on account of a challenge, get
validated by additional grounds later
brought
out
by
the
said
statutorily
functionary.
Thus,
the
additional
explanation of the Board asserted in the
counter affidavit that the offences appeared
to be involving moral turpitude, is merely
noted to be rejected.

(10) In any case, the term 'moral
turpitude' is not defined under the law, but
based on judicial precedents, it refers to
instances where an individual indulges in
acts which are against morality, integrity,
and ethics. Courts have identified offences
involving moral turpitude to include
financial misappropriation, criminal breach
of trust, theft, sexual misconduct, etc. and
refers to a conduct which is inherently
1482 INDIAN LAW REPORTS ALLAHABAD SERIES
base, vile, or depraved. This Court in the
facts of the present case and taking a
holistic view of the sections invoked
against the petitioner in two criminal cases
pending against the petitioner, is of the
considered view that the offences alleged
does not involve any offence of moral
turpitude. However, since this Court is
merely considering the sections invoked
against the petitioners in the said two
criminal cases with the limited lens of
disposal of the present petition under the
provisions
of
MH
Act,
2017,
any
observation made by this Court shall not
have any bearing on the merits of said two
criminal cases, which shall have their own
consequences
on
the basis
of
their
individual merits, as per law.

(11) The next question, which falls
for consideration is as to whether in the
facts and circumstances of the present case
wherein the impugned order is unsustainable
in the eyes of law, whether the petitioner
should be relegated to the stage of
Board/Authority or this Court can appoint the
petitioner as the representative or not. Having
said so, this Court finds that in view of
Section 4 of the MH Act, 2017, every person,
including a person with mental illness shall
be deemed to have capacity to make
decisions regarding his mental healthcare or
treatment. Thus, a deemed capability is
envisaged by the MH Act, 2017 itself and as
such Section 5(1)( c) of the MH Act, 2017
says that every person, who is not a minor,
shall have a right to make an advance
directive in writing to the effect that any
individual or individuals, in order of
precedence, he or she wants to appoint his
nominated representative as provided under
section 14 of the MH Act, 2017.

(12) However, in the present case,
what this Court find is that opposite party
no.4, who is suffering from Moderate
Intellectual
Disability
IQ-44
(VSMS)
(disability about 75% as per Disability
Certificate,
Annexure-4),
is
unable
to
exercise her right and there is no advance
directive
and
as
such
the
impugned
application came to be filed by the petitioner
under Section 14(4)(d) of the MH Act, 1977.
It would be profitable to extract Section 14 of
the Act, which inter-alia says as follows:

 "Section 14: Appointment and
revocation of nominated representative.

 (1)
Notwithstanding
anything
contained in clause (c) of sub-section (1) of
section 5, every person who is not a minor,
shall have a right to appoint a nominated
representative.

 (2) The nomination under subsection (1) shall be made in writing on
plain paper with the person's signature or
thumb impression of the person referred to
in that sub-section.

 (3) The person appointed as the
nominated representative shall not be a
minor, be competent to discharge the duties
or perform the functions assigned to him
under this Act, and give his consent in
writing to the mental health professional to
discharge his duties and perform the
functions assigned to him under this Act.

 (4)
Where
no
nominated
representative is appointed by a person
under
sub-section
(1),
the
following
persons for the purposes of this Act in the
order of precedence shall be deemed to be
the nominated representative of a person
with mental illness, namely:-

 (a) the individual appointed as the
nominated representative in the advance
5 All. Saurabh Mishra Vs. State of U.P. & Ors.
1483
directive under clause (c) of sub-section (1)
of section 5; or

 (b) a relative, or if not available
or not willing to be the nominated
representative of such person; or

 (c) a care-giver, or if not
available or not willing to be the nominated
representative of such person; or

 (d) a suitable person appointed as
such by the concerned Board; or

 (e) if no such person is available
to
be
appointed
as
a
nominated
representative, the Board shall appoint the
Director, Department of Social Welfare, or
his
designated
representative,
as
the
nominated representative of the person with
mental illness:

 Provided
that
a
person
representing an organization registered
under the Societies Registration Act, 1860
or any other law for the time being in force,
working for persons with mental illness,
may temporarily be engaged by the mental
health professional to discharge the duties
of a nominated representative pending
appointment of a nominated representative
by the concerned Board.

 (5) The representative of the
organisation, referred to in the proviso to
sub-section (4), may make a written
application to the medical officer in-charge
of the mental health establishment or the
psychiatrist in-charge of the person's
treatment, and such medical officer or
psychiatrist, as the case may be, shall
accept him as the temporary nominated
representative, pending appointment of a
nominated representative by the concerned
Board.
 (6) A person who has appointed
any person as his nominated representative
under this section may revoke or alter such
appointment at any time in accordance with
the procedure laid down for making an
appointment of nominated representative
under sub-section (1).

 (7) The Board may, if it is of the
opinion that it is in the interest of the
person with mental illness to do so, revoke
an appointment made by it under this
section,
and
appoint
a
different
representative under this section.

 (8)
The
appointment
of
a
nominated representative, or the inability of
a person with mental illness to appoint a
nominated representative, shall not be
construed as the lack of capacity of the
person to take decisions about his mental
healthcare or treatment.

 (9) All persons with mental
illness shall have capacity to make mental
healthcare or treatment decisions but may
require varying levels of support from their
nominated
representative
to
make
decisions.

 (Emphasis supplied)

(13) Section 14 (4) of MH Act,
2017 enumerates five different categories
of persons, who can be appointed, in case
no nominated representative is appointed
by a person under section 14 (1) of MH
Act, 2017. The first is the individual
appointed as the nominated representative
in the advance directive under Clause (c) of
sub-section (1) of section 5. In case, no
such persons is available in the advance
directive, section 14 (4) (b) of the MH Act,
2017 talks about appointing a relative as a
nominated representative and finds mention
1484 INDIAN LAW REPORTS ALLAHABAD SERIES
at a higher pedestal to any other categories.
It is only, if, a relative is not available or is
not
willing
to
be
the
nominated
representative
that
in
the
order
of
preference, a care-giver or thereafter a
suitable person can be appointed. A relative
as defined under section 2 (za) of the MH
Act, 2017 means any person related to the
person with mental illness by blood,
marriage or adoption.

(14) However, as to what is the
criteria or suitability and as how to ensure
the same, there is no mechanism provided
under the MH Act, 2017 for appointment of
a representative to take care of such
intellectually challenged persons or their
asset. These legal vacuum has been
considered in various Judgments by the
Hon'ble Supreme Court and the High
Courts and each time, the Courts had
exercised its parens patriae jurisdiction
while appointing a representative or a
guardian under the MH Act, 2017.

(15) Traditionally, while exercising
parens patriae jurisdiction, Courts used to
apply the principle of "best interest of the
individual", however, with the introduction
of the United Nations Convention on the
Rights
of
Persons
with
Disabilities
(UNCRPD), in compliance of which the
MH Act, 2017 came to be explicitly
designed, the earlier concept of "best
interest" of the individual has to be now in
the light of the "wills and preferences" of
the individual. Thus, the "wills and
preferences"
of
the
intellectually
challenged person has to be determined
either in the background of advance
directives as stated herein above or in the
absence of advance directives, it ought to
be guided by the factors, which points
towards the 'wish & intent' of the said
mentally ill person.
(16) In the absence of advance
directions, the social fabric of family
structures in India plays a pivotal role in
determining the 'wish & intent' of an
intellectually challenged person and that is
why we see that the legislature has
significantly enumerated a "relative" to be
nominated as a representative very next and
immediate to advance directive of the said
individual, before any category of person.
The word 'Family' under Section 2(h) of
the MH Act, 2017, means 'a group of
persons related by blood, adoption or
marriage'. This Court finds that there is no
marked difference between relative and
family under the provision of the MH Act,
2017. Both can be used interchangeably.
Thus, a relative can be said to be a family
and in the same breath, it can be said that a
family consist of relatives. This Court is
conscious of the fact that the petitioner is a
close relative of opposite party no.4 as
being her nephew and there is 'No
Objection' from other relative to his
nomination as her representative and even
the concerned Tehsildar has reported that
opposite party no.4 is under the care of the
petitioner as recorded by this Court herein
above.

(17) Further, this Court notes that
the MH Act had laid down certain
standards and factors to be considered
while determining the "best interest" of the
mentally ill person. However, no guidance
exists as to what would constitute the "wills
and preferences" of the person. Even in the
proviso to Section 14 (1), the factors to be
considered for providing total support are
conspicuously absent. The MH Act has no
provision in respect of management of
financial affairs, appointment of guardians
or
the
manner
in
which
the
movable/immovable
property
of
the
mentally ill person is to be taken care of.
5 All. Saurabh Mishra Vs. State of U.P. & Ors.
1485
Thus, there is a clear statutory vacuum. In
any event, this Court is of the opinion that
the solemn nature of the said jurisdiction
having been repeatedly recognized by the
Hon'ble Supreme Court, the question as to
whether it is the Board or the Appellate
Authority or as to which Court has to
exercise it and in what manner is one of
mere procedure, so long as the "wills and
preferences" of the mentally ill person and
the other factors set out in the rules are
borne in mind by the Board or this Court
while
exercising
its
parens
patriae
jurisdiction.

(18) In the present case, the initial
will and preference of the opposite party
no.4 could not be determined. Even, as on
today, considering her physical and mental
state, it is clear that she is even unable to
express her will or her preference. The
Court in these circumstances has to step in
under the parens patriae jurisdiction to
redeem the agony of the opposite party
no.4, who is the ultimate beneficiary in the
present case.

(19) In view of the facts of this
case as also the reports placed on record,
this Court is convinced that opposite party
no.4 is unable to take decisions in her
interest and is in a seriously declined
mental and physical state. Insofar as the
persons, who ought to be appointed as her
guardians are concerned, opposite party
no.4 does not appear to have any other
legal heir, except the petitioner, who is her
relative and a family as being the son of
her real brother. Further, the affidavit of
no objection of the other relatives appears
convincing and there seems to be no
impediment in nominating the petitioner
as the representative of opposite party
no.4.

(20) In these circumstances, the
Court exercising parens patriae jurisdiction
direct as under :-

 (i) The impugned order dated
16.11.2024 is quashed;

 (ii) The petitioner is appointed as
the nominated representative of opposite
party no.4 under the MH Act, 2017 and for
providing support to her under the Rights
of Persons with Disabilities (RPwD) Act,
2016;

 (iii) The petitioner shall take all
decisions in respect of the affairs of the
opposite party no.4 including her medical
treatment, healthcare, daily living, financial
affairs, etc.

 (iv) The petitioner shall be
nominated to deal with all the movable and
immovable assets of the opposite party
no.4, including the family pension granted
by Madhyanchal Vidyut Vitran Nigam
Limited, however, he shall not undertake
transfer of immovable assets, without the
prior approval and consent of the 'Mansik
Swasthya Punarvilokan Board', Bareilly.

 (v) In case, any relative/family or
friend of opposite party no.4 points out that
the nominated representative/petitioner is
not acting in her best interest, such person
will also have the locus to approach either
the Board or this Court for issuance of
proper direction and for removal of the
petitioner.

 (vi) It is made clear that the
notwithstanding
the
petitioner
being
nominated as representative of by this
Court, the Board shall have all the
supervisory powers as envisaged under the
1486 INDIAN LAW REPORTS ALLAHABAD SERIES
provision of the MH Act, 2017, including
Section 82 of the MH Act, 2017.

 (vii) The aforesaid directions
have been passed on the strength of the
petitioner's submission and averments
made before this Court as well as the report
of the Tehsildar- Ramnagar that opposite
party no.4 is under the care and living
along with the petitioner and there is valid
and existing 'no objection' Affidavit of
other relatives of opposite party no.4 in
favour of the petitioner. The parties shall be
bound by the said submission and in case,
the same are found otherwise, appropriate
proceedings including Contempt of Court
may be initiated against them.

(21) The petition is, accordingly,
allowed.
----------
(2025) 5 ILRA 1486
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2025

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ C No. 11196 of 2025

Smt. Bandana ....Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Siddharth Nandan

Counsel for the Respondents:
C.S.C, J.P.N. Singh

A. Civil Law-Constitution of India,1950Article 226-Kshettra Panchayat and Zila
Panchayat Act,1961-Section 15(2) & (3)-
The petitioner an elected member of the
Kshettra Panchayat submitted a nonconfidence
motion
against
the
Block
Pramukh-The notice was supported by 70
out
of
100
elected
members
and
submitted to the Collector u/s 15(2) of the
Act,1961-Instead of convening a meeting,
the Collector rejected the motion on
20.03.2025
citing
affidavits
from
69
members denying their support for the
motion-Held,
once
a
non-confidence
motion u/s 15(2) of the Act is validly
submitted with signatures of at least half
of the elected members, the Collector is
statutorily obligated to convene a meeting
within 30 days and cannot reject the
motion
based
on
belated
rebuttal
affidavits or enter into disputed questions
of fact such as forgery or coercion-The
Court
quashed
the
Collector's
order
rejecting the motion and directed a
summary verification of signatures from
Panchayat records, reiterating that the
Collector's role is limited to a prima facie
satisfaction, not detailed inquiry.(Para 1
to 31)

The writ petition is allowed. (E-6)

List of Cases cited:

1. Mathura Prasad Tewari Vs Asst. Ditt.
Panchayat Officer, Faizabad(1996) ALJ 612

2. Smt. Phulbasa Vs D.M. collector & ors., Writ C
No. 36671 of 2024

3. Vikas Trivedi Vs St. of U.P. (2013) 2 UPLBC
1193 para 66

4. Vikash Kr. & anr. Vs St. of U.P. & ors. (2025)
2 ADJ 1

5. Utma Devi Vs St. of U.P. & ors. (2014) 4 ADJ 3

6. Smt. Sheela Devi & ors. Vs St. of U.P. & ors.
(2015) 2 ADJ 325

7. Kavita Vs St. of U.P. (2018) 10 SCC 569

8. Kiran Pal Singh Vs St. of U.P. & ors. (2018) 7
SCC 521

(Delivered by Hon'ble Jayant Banerji, J.)