# Vinay Kumar Sharma v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-21
- **Case number:** Writ C No. 26844 of 2021
- **Bench:** Ashwani Kumar Mishra, Vikram D Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-sharma-v-state-of-u-p-ors-47512
- **Pages:** 10

## Headnote

C.S.C.

A. National Trust for Welfare of Persons
with
Autism,
Cerebral
Palsy,
Mental
Retardation and Multiple Disabilities Act,
1999 - Section 14 - Appointment of
guardian for mentally retarded person -
Application
filed
before
the
District
Magistrate was neither in prescribed
format nor it provide the provision, under
which it was filed - Effect - Held, it is trite
of law that non-mentioning of a provision
of law in the application itself will not
invalidate the proceedings - The aforesaid
issues are technical issues and the wheels
of substantive justice cannot be stopped
only on the ground that the application of
the
petitioner
before
the
District
Magistrate is not in the prescribed form -
Aforesaid defect is a defect which is
curable. (Para 27 and 29)
B. Constitution of India - Article 21 -
Fundamental right of mentally retarded
person to have a guardian - Held, a
person with disability, including mental
retardation, cannot be permitted to be
without a guardian - The law envasages
protection and care to the aforesaid
person with disability, including mental
retardation
and
the
same
is
in
consequence
with
fundamental
right
under Article 21 of the Constitution of
India
-
The
person
with
disability,
including mental retardation, is entitled
under law to care and protection by the
St. Authorities so as to bring them within
the
mainstream
of
life,
care
and
protection. (Para 30)
Writ petition disposed of. (E-1)
List of Cases cited:-

## Text

806 INDIAN LAW REPORTS ALLAHABAD SERIES
hand, occurs when the State does not take
steps in terms of Section 24(2). The
provisions of Section 101 cannot be applied
to the acquisitions made under the Act of
1894. Thus, no such sustenance can be
drawn from the provisions contained in
Section 101 of the Act of 2013. Five years'
logic has been carried into effect for the
purpose of lapse and not for the purpose of
returning the land remaining unutilized
under Section 24(2)."

24. In view of the aforesaid view
expressed by the Constitution Bench of
Hon'ble
Supreme
Court
in
Indore
Development Authority's case (supra),
even the argument raised for release of the
land by invoking Section 101 of 2013 Act
also deserves to be rejected as acquisition
in question is not under the 2013 Act.

25. For the reasons mentioned above,
we do not find any merit in the present
petition.
The
same
is,
accordingly,
dismissed.
----------
(2022)01ILR A806
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VIKRAM D CHAUHAN, J.

Writ C No. 26844 of 2021

Vinay Kumar Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kunwar Tejandra Bahadur, Sri Arvind
Kumar Tripathi

Counsel for the Respondents:
C.S.C.

A. National Trust for Welfare of Persons
with
Autism,
Cerebral
Palsy,
Mental
Retardation and Multiple Disabilities Act,
1999 - Section 14 - Appointment of
guardian for mentally retarded person -
Application
filed
before
the
District
Magistrate was neither in prescribed
format nor it provide the provision, under
which it was filed - Effect - Held, it is trite
of law that non-mentioning of a provision
of law in the application itself will not
invalidate the proceedings - The aforesaid
issues are technical issues and the wheels
of substantive justice cannot be stopped
only on the ground that the application of
the
petitioner
before
the
District
Magistrate is not in the prescribed form -
Aforesaid defect is a defect which is
curable. (Para 27 and 29)
B. Constitution of India - Article 21 -
Fundamental right of mentally retarded
person to have a guardian - Held, a
person with disability, including mental
retardation, cannot be permitted to be
without a guardian - The law envasages
protection and care to the aforesaid
person with disability, including mental
retardation
and
the
same
is
in
consequence
with
fundamental
right
under Article 21 of the Constitution of
India
-
The
person
with
disability,
including mental retardation, is entitled
under law to care and protection by the
St. Authorities so as to bring them within
the
mainstream
of
life,
care
and
protection. (Para 30)
Writ petition disposed of. (E-1)
List of Cases cited:-
1. High Court of Gujarat Vs Gujarat Kishan
Mazdoor Panchayat, (2003) 4 SCC 712
(Delivered by Hon'ble Vikram D Chauhan, J.)

1. The present writ petition has been
filed by the petitioner for issuance of a
direction to the District Magistrate, Bijnor
1 All. Vinay Kumar Sharma Vs. State of U.P. & Ors.
807
to consider the application of the petitioner
to issue a certificate in his favour pertaining
to guardianship of his mentally and
physically
disabled
brother
namely,
Sandeep Kumar Sharma.

2. Heard learned counsel for the
petitioner and learned Standing Counsel for
the respondents.

3. The counsel for the petitioner
contends that the father of the petitioner,
Late Ramesh Prasad Sharma had three
sons, namely, Sandeep Kumar Sharma,
Vinay Kumar Sharma and Ankit Kumar
Sharma. It is further submitted that Shri
Sandeep Kumar Sharma (brother of the
petitioner) is 90% physically as well as
mentally disabled and is aged about 37
years. In this regard, the counsel for the
petitioner has also drawn attention to the
disability certificate (Annexure 1 to this
writ petition) issued by the Chief Medical
Officer, Bijnor indicating that Sri Sandeep
Kumar Sharma (brother of the petitioner) is
mentally retarded. It is further contended
by the petitioner that during the lifetime of
the parents of the petitioner, Sri Sandeep
Kumar Sharma was being looked after by
the parents and after the death of the
parents, no person has been appointed as
the guardian of Sri Sandeep Kumar
Sharma. It is the submission of the counsel
for the petitioner that both the parents of
Sri Sandeep Kumar Sharma has already
expired. It has been specifically pointed out
that the father of Sri Sandeep Kumar
Sharma died on 8th October, 2008 and
mother died on 6th March, 2001.

4. It is urged by the counsel for the
petitioner that Sri Sandeep Kumar Sharma
is the eldest son and is not married on
account of his mental and physical
disability, whereas the petitioner and his
younger brother Ankit Kumar Sharma are
married. It is also submitted that Sri
Sandeep Kumar Sharma on account of his
above-mentioned disability is not in a
position to maintain and take care of
himself and after the death of his parents,
no guardian has been appointed under law.
It is contended that the petitioner has to
face various difficulties and hindrance on
account
of
non-appointment
of
the
Guardian in respect of Sri Sandeep Kumar
Sharma in various aspects of the life
including his medical care and property.

5. It is further urged by the counsel
for the petitioner that earlier the petitioner
filed an application under section 7 of the
Guardians and Wards Act, 1890 before the
court of Principal Judge, Family Court,
Bijnor on 7th March, 2019 and the
aforesaid case was registered as O.M. Case
No 9 of 2019 (Vinay Kumar Sharma Vs.
Ankit Kumar Sharma). It is further
submitted by the counsel for the petitioner
that the aforesaid application under section
7 of the Guardians and Wards Act, 1890
was preferred for appointment of the
petitioner as Guardian of Sri Sandeep
Kumar Sharma and in the aforesaid case on
27th August, 2019, written statement has
been filed by Ankit Kumar Sharma,
whereby no objection has been made for
the appointment of the petitioner as
Guardian of Sri Sandeep Kumar Sharma.
Learned counsel for the petitioner further
submits that the Principal Judge, Family
Court, Bijnor on 22nd September, 2020 has
dismissed the above-mentioned case of the
petitioner on the ground that the aforesaid
court has no power to appoint Guardian in
respect of retarded person, who is major. It
is urged by the counsel for the petitioner
that a person can be appointed as Guardian
808 INDIAN LAW REPORTS ALLAHABAD SERIES
under the Guardianship and Wards Act,
1890 in respect of minor and as such, the
application of the petitioner under the
aforesaid Act was held to be not
maintainable. It is also submitted by the
counsel for the petitioner that thereafter the
petitioner has preferred an application
dated 24th June, 2021 before the District
Magistrate, Bijnor for issuance of a
certificate of guardianship of Sri Sandeep
Kumar Sharma in favour of the petitioner.
It is further submitted that the petitioner has
further
on
12th
July,
2021
again
approached the District Magistrate, Bijnor
for issuance of certificate in respect of
guardianship of Shri Sandeep Kumar
Sharma in favour of the petitioner. It is
urged by the counsel for the petitioner that
despite having approached the abovementioned authority for issuance of the
guardianship certificate in favour of the
petitioner in respect of the person of Sri
Sandeep
Kumar
Sharma,
there
exist
complete inaction on the part of the District
Magistrate,
Bijnor
to
process
the
application of the petitioner and to issue the
guardianship certificate in favour of the
petitioner. Counsel for the petitioner further
submits that in the aforesaid background,
the petitioner has moved this Court by
means of the present writ petition for
issuance of the necessary direction to the
District Magistrate, Bijnor.

6. Learned Standing Counsel has
stated that although the Act No.44 of 1999
is applicable in the facts and circumstances
of the case. However, the application
preferred by the petitioner before the
District Magistrate, Bijnor is not in
accordance with the prescribed proforma as
prescribed under the Rules of 2000 and as
such, the application cannot be considered
in the present form.

7. The application dated 24th June,
2021 and 12th July, 2021 preferred by the
petitioner before the District Magistrate,
Bijnor does not indicate the provision of
law under which the aforesaid application
has
been
preferred
for
issuance
of
certificate of guardianship in respect of Sri
Sandeep Kumar Sharma. On a pointed
query being made to the counsel for the
petitioner as to the provision of law under
which the aforesaid application has been
preferred by the petitioner for issuance of
guardianship certificate in favour of the
petitioner in respect of Shri Sandeep
Kumar Sharma, the counsel for the
petitioner submitted that the aforesaid
application will be referable to National
Trust for Welfare of Persons with Autism,
Cerebral Palsy, Mental Retardation and
Multiple Disabilities Act, 1999 (hereinafter
referred to as "Act No. 44 of 1999"). It is
the submission of the counsel for the
petitioner that Sri Sandeep Kumar Sharma
is mentally retarded and in this respect
certificate has already been issued by the
Chief Medical Officer, Bijnor.

8. Before considering the case of the
petitioner as stated in the writ petition, it is
imperative that the scheme and statutory
provision under the National Trust for
Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple
Disabilities Act, 1999, is considered.

9. The National Trust for Welfare of
Persons with Autism, Cerebral Palsy,
Mental
Retardation
and
Multiple
Disabilities Act, 1999 has been enacted by
the Parliament with the object to provide
for the constitution of a body at the
National level for the Welfare of Persons
with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities and
1 All. Vinay Kumar Sharma Vs. State of U.P. & Ors.
809
for
matters
connected
therewith
or
incidental thereto.

10. Under Section 2 of the abovementioned Act No. 44 of 1999 various
definitions has been provided in the context
of the above-mentioned Act. The definition
of various words under the aforesaid Act
which are relevant for the purpose of
present case are noticed herein below.

11. Under Section 2 of the National
Trust for Welfare of Persons with Autism,
Cerebral Palsy, Mental Retardation and
Multiple Disabilities Act, 1999 provides
the definition of "Autism", "cerebral
palsy", "mental retardation", "multiple
disabilities", "persons with disability" and
the same is quoted here and below:-

"(a) "autism" means a condition
of uneven skill development primarily
affecting the communication and social
abilities of a person, marked by repetitive
and ritualistic behaviour"

Further, under section 2 (c) of the
National Trust for Welfare of Persons with
Autism, Cerebral Palsy, Mental Retardation
and
Multiple
Disabilities
Act,
1999
provides the definition of "cerebral palsy"
and the same is quoted here and below :

(c) "cerebral palsy" means a
group of non-progressive conditions of a
person characterised by abnormal motor
control and posture resulting from brain
insult or injuries occurring in the pre-natal,
perinatal or infant period of development

(g) "mental retardation" means a
condition
of
arrested
or
incomplete
development of mind of a person which is
specially characterised by sub-normality
of intelligence

(h) "multiple disabilities" means 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 (1 of 1996).

(j)
"persons
with
disability"
means a person suffering from any of the
conditions relating to autism, cerebral
palsy, mental retardation or a combination
of any two or more of such conditions and
includes a person suffering from severe
multiple disability."

12. Section 34 of the Act No. 44 of
1999 further provides for constitution of
National Trust for Welfare of Persons with
Autism, Cerebral Palsy, Mental Retardation
and Multiple Disabilities, which shall be a
body corporate by the aforesaid name and
having perpetual
succession
and
the
common seal.

13. The aforesaid trust is established
for the purposes of carrying out the objects
of the act. The general superintendence,
direction and management of the affairs
and business of the above-mentioned trust
is vested in the board constituted under
Section 3 of the Act No. 44 of 1999.

14. The National Trust for Welfare of
Persons with Autism, Cerebral Palsy,
Mental
Retardation
and
Multiple
Disabilities is constituted with the objects
as defined under Section 10 of the Act No.
44 of 1999. The provisions of Section 10 of
the Act No. 44 of 1999 is quoted herein
below:-
810 INDIAN LAW REPORTS ALLAHABAD SERIES

"10.
Objects
of
Trust.--The
objects of the Trust shall be--

(a) to enable and empower
persons
with
disability
to
live
as
independently and as fully as possible
within and as close to the community to
which they belong;

(b) to strengthen facilities to
provide support to persons with disability
to live within their own families;

(c) to extend support to registered
organisations
to
provide
need
based
services during the period of crisis in the
family of persons with disability;

(d) to deal with problems of
persons with disability who do not have
family support;

(e) to promote measures for the
care and protection of persons with
disability in the event of death of their
parent or guardian;

(f) to evolve procedure for
the appointment of guardians and trustees
for persons with disability requiring such
protection;

(g) to facilitate the realisation of
equal opportunities, protection of rights and
full participation of persons with disability;
and (h) to do any other act which is
incidental to the aforesaid objects."

The Act No 44 of 1999 under
section 13 provides for constitution of local
level committee for such areas as may be
specified from time to time. It is also
directed under section 13 (4) of the Act No
44 of 1999 that the aforesaid local
committee shall meet at least once in three
months or at such interval as may be
necessary. The local level committee shall
consist of -

(a) an officer of the civil service
of the Union or of the State, not below the
rank of a District Magistrate or a District
Commissioner of a district;

(b)
a
representative
of
a
registered organisation; and

(c) a person with disability as
defined in clause (t) of section 2 of the
Persons
with
Disabilities
(Equal
Opportunities, Protection of Rights and
Full Participation) Act, 1995 (1 of1996)."

15. Section 14(1) of the Act No. 44 of
1999 further provides that 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. Section 14 (4) of the
Act No. 44 of 1999 further provides that
the local level committee shall receive,
process and decide the application received
under Section 14 (1) and (2) of the
aforesaid Act in such manner as may be
determined by the Regulations.

16. The Central Government in
exercise of power under Section 34 of the
Act No. 44 of 1999 has framed the National
Trust for Welfare of Persons with Autism,
Cerebral Palsy, Mental Retardation and
Multiple Disabilities Rules, 2000. The
aforesaid Rules have been notified for the
purpose of carrying out the purposes of the
Act.

17. Rule 16 of the above-mentioned
Rules of 2000 provides that the application
by
a
parent,
relative
or
registered
1 All. Vinay Kumar Sharma Vs. State of U.P. & Ors.
811
organisation for appointment of guardian of
a person with disability shall be made to
the local level committee in Form A as has
been appended along with the Rule. A bare
perusal
of
the
aforesaid
Form
(as
prescribed under Rule 16) would further
demonstrate that necessary particulars are
to be disclosed in the aforesaid Form and
disability certificate is also required to be
enclosed along with the application. The
aforesaid application was also required to
be signed by two witnesses.

18. The Board with the previous
approval of the Central Government has
also framed Regulations under Section 35
of the Act No. 44 of 1999. The aforesaid
Regulations are called the Board of the
Trust Regulations, 2001. Regulation 13 of
the above-mentioned Regulations of 2001
provide the guidelines for receiving,
processing
and
confirmation
of
the
application for appointment of a guardian.
The Regulation 13 is quoted herein below
:-

"Guidelines
for
receiving,
processing and confirmation of application
for appointment of a guardian - (1) The
Local Level Committee shall receive
applications for appointment of guardian in
Form A under the rules.(Amended vide
GSR 123(E) dated 16th February 2004).

(2) On receipt of the application
for appointment of guardian, the Local
Level Committee shall scrutinize the
application and call for any supporting
document or information that may be
necessary for deciding the issue of
guardianship.

(3) In case of application received
from parents for guardian other than
themselves, the Local Level Committee
may decide to get parent's counselling in
any 54 manner, it may decide to determine
the genuineness of having a guardian other
than parents.

(4) If parents or relatives are not
available for the person with disability who
is in need of guardian, because of being a
vagrant or destitute or found abandoned,
member or members of the Committee may
ask for applications from a registered
organization to initiate the process of
guardianship for the person.

(5) The person with disability
must be assessed by the Local Level
Committee, to determine the genuineness
of the need of guardianship and it shall be
open to the Local Level Committee to seek
the assistance of technical personnel or
their services to determine the need.

(6) The Local Level Committee
shall satisfy itself about the capabilities and
the suitability of the person on whom
guardianship is being conferred.

(7)
The
application
for
guardianship
for
personal
care
and
maintenance shall be accepted to cover the
following areas, namely -

a. Food, clothing and shelter
needs;

b. Health care needs;

c. Religious needs;

d.
Education,
training
and
employment needs;

e. Leisure and nutrition needs;
812 INDIAN LAW REPORTS ALLAHABAD SERIES

f. Protection from exploitation
and abuse;

g. Protection of constitutional and
human rights; and

h. Medical and surgical needs.

(8)
The
confirmation
of
appointment of the guardian on application
made by

(1) a registered organization; or

(2) the parent or relative of a
person with disability shall be made in
Form B under the rules."

19. The petitioner, who is the brother
of Shri Sandeep Kumar Sharma has sought
certificate of guardianship in favour of
petitioner on the basis that Sri Sandeep
Kumar Sharma is mentally retarded and
further physically handicapped. The case of
the petitioner is that the parents of Sri
Sandeep Kumar Sharma are no more and
that he is unmarried. It is the case of the
petitioner that he is brother of Sri Sandeep
Kumar Sharma and the other brother
namely, Ankit Kumar Sharma-respondent
no. 3 has no objection for issuance of
guardianship certificate in favour of the
petitioner
and
the
petitioner
being
appointed as guardian of Sri Sandeep
Kumar Sharma.

20. A perusal of the applications
dated 24th June, 2021 and 12th July, 2021
would demonstrate that such applications
have been preferred by the petitioner for
appointment of the petitioner as guardian of
Sri Sandeep Kumar Sharma and for
issuance
of
necessary
certificate
of
guardianship.
The
above-mentioned
applications dated 24th June, 2021 and 12th
July, 2021 has been preferred before the
District Magistrate, Bijnor. It is also the
submission of the counsel for the petitioner
that the aforesaid application of the
petitioner is pending consideration before
the District Magistrate, Bijnor for a
substantial period of time without any order
being passed on the aforesaid application.

21. The application dated 24th June,
2021 and 12th July, 2021 preferred by the
petitioner for issuance of certificate of
guardianship in respect of Sri Sandeep
Kumar Sharma do not disclose the
provision of law under which the aforesaid
application has been preferred before the
District Magistrate, Bijnor. However on a
pointed query made to the counsel for the
petitioner as to the provision under which
the aforesaid applications dated 24th June,
2021 and 12th July, 2021 has been
preferred by the petitioner, the counsel for
the petitioner has stated that the aforesaid
applications have been preferred under
Section 14 of the National Trust for
Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple
Disabilities Act, 1999, for appointment of
guardian. It is the case of the petitioner that
Sri Sandeep Kumar Sharma is suffering
from mental retardation and the parents of
Sri Sandeep Kumar Sharma has already
expired and as such a guardian is required
to be appointed in respect of Sri Sandeep
Kumar Sharma, who is not in a position to
maintain himself and look after the
property owned by him.

22. It is further to be seen that on
earlier
occasion,
the
petitioner
had
approached the Principal Judge, Family
Court, Bijnor by preferring an application
under Section 7 of the Guardians and
Wards Act, 1890 for appointment of the
petitioner as guardian of Sri Sandeep
1 All. Vinay Kumar Sharma Vs. State of U.P. & Ors.
813
Kumar Sharma. The aforesaid application
was finally decided vide order dated 22nd
September, 2020 whereby the Family
Court, Bijnor refused to grant certificate of
guardianship to the petitioner on account of
the fact that under the Act of 1890, the
guardianship can only be considered in
respect of a minor and since Sri Sandeep
Kumar Sharma is aged about 35 years and
is major and as such the application under
the Act of 1890 is not maintainable.

23. It is further to be seen that the
power with respect to appointment of a
guardian pertaining to a person who is
suffering from mental retardation is to be
governed by the Act No.44 of 1999. Under
Section 14 of the aforesaid Act, the power
to appoint guardian in respect of a person
suffering from disability is provided. The
aforesaid provision provides that the parent
of the person with disability or his relative
can make an application to a Local Level
Committee for appointment of guardian of
the person with disability. The Local Level
Committee is constituted under Section 13
of the Act No.44 of 1999. The members of
the Local Level Committee include an
Officer not below the rank of District
Magistrate of the district, a representative
of a registered organization and a person
with disability as defined in Clause F of
Section 2 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995.

24. The power envisaged under
Section 14 of the Act No.44 of 1999 with
regard to appointment of guardian is to be
exercised in accordance with the procedure
prescribed under the National Trust for
Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple
Disabilities Act, 2000. Under Rule 16 of
the Rules of 2000, it is provided that the
application for appointment of guardian for
a person with disability shall be made to
the Local Level Committee in Form-A. The
Form-A is appended to the aforesaid Rules
of 2000 for which a prescribed format has
been provided which also provides certain
documents to be submitted along with the
application and the application is to be
signed by two witnesses.

25. It is further to be seen that under
Regulation No.13 of the 2001 Regulations,
detailed guidelines has been prescribed for
receiving the processing of formation of
application for appointment of guardian. It
is also provided under the aforesaid
Regulations, the areas in respect of which
the guardianship for personal care and
maintenance to the person with disability is
to cover.

26. The petitioner has filed along with
the writ petition a certificate of Chief
Medical Officer, Bijnor with regard to
mental retardation of Sri Sandeep Kumar
Sharma and on the aforesaid basis, the
powers under the Act No.44 of 1999 is
being
sought
to
be
enforced
for
appointment of guardian in respect of
person with disability.

27. A bare perusal of the applications
dated 24th June, 2021 and 12th July, 2021
preferred by the petitioner before the
District Magistrate, Bijnor for appointment
of guardian in respect of Sri Sandeep
Kumar Sharma would demonstrate that
although the aforesaid application do not
provide the provision under which the
aforesaid application has been preferred by
the petitioner. However, it is trite of law
that non-mentioning of a provision of law
in the application itself will not invalidate
814 INDIAN LAW REPORTS ALLAHABAD SERIES
the proceedings if the power for exercise of
the jurisdiction under the Act is otherwise
available to the District Magistrate. The
Apex Court in the case of High Court of
Gujarat vs. Gujarat Kishan Mazdoor
Panchayat, (2003) 4 SCC 712, has held
that non-mentioning or wrong mentioning
of a provision of law would not invalidate
an order if a source therefore can be found
out either under general law or a statute
law. In view of the aforesaid, the
technicalities that the application does not
disclose the provisions under which it is
filed, will be of no consequence.

28. It is also to be seen that the
application
under
the
Rules
and
Regulations are required to be filed in a
prescribed
format
along
with
the
documents and the witnesses. However, in
the present case, the application filed by the
petitioner before the District Magistrate,
Bijnor seems to be not in proper form as
the application is not supported by
certificate of disability nor the same is
signed by two witnesses.

29. It is also to be seen that the
application is not in the prescribed form.
However, the aforesaid issues are technical
issues and the wheels of substantive justice
cannot be stopped only on the ground that
the application of the petitioner before the
District Magistrate is not in the prescribed
form. The Rules and Regulations framed
under the Act No.44 of 1999 are for the
purpose of carrying out the objects of the
Act and one of the objects under the Act is
to appoint guardian in respect of a person
with disability and as such, the petitioner
though has invoked the jurisdiction of
District Magistrate, Bijnor by filing an
application under Section 14 of the Act
No.44 of 1999. However, the aforesaid
application is not in the prescribed form
and the aforesaid defect is a defect which is
curable.

30. It is to be noted that under the Act
No. 44 of 1999 there is no provision which
restricts the right of the petitioner to cure
the defect in respect of the form in which
the application under Section 14 of the Act
is to be filed for appointment of guardian.
The Act No. 44 of 1999 is a beneficial
legislation for the benefit of the person with
disabilities including mental retardation
and for the benefit of the aforesaid person
various provisions have been made under
the Act and the Rules framed thereunder.
Once the Act No. 44 of 1999 is said to be
beneficial legislation, the application filed
by the petitioner although not in prescribed
form, as prescribed under the Rules,
however, the same will not denude the
authority from proceeding under the Act
No. 44 of 1999 and this Court can always
direct the petitioner to cure the defect and
prefer an application in accordance with
form prescribed under the Rules. It is to be
noted that a person with disability,
including mental retardation, cannot be
permitted to be without a guardian. The law
envasages protection and care to the
aforesaid person with disability, including
mental retardation and the same is in
consequence with fundamental right under
Article 21 of the Constitution of India. The
person with disability, including mental
retardation, is entitled under law to care
and protection by the State Authorities so
as to bring them within the mainstream of
life, care and protection. The defect of the
application not being in proper form is a
curable defect and the same can be cured
by the petitioner at any stage. It is also to
be noted that as of date, the District
Magistrate has not passed any order on the
application for appointment of guardian
and
the
application
is
pending
1 All. M/s SDB Infrastructure Pvt. Ltd. New Delhi & Anr. Vs. Presiding Officer Industrial Tribunal & Anr. 815
consideration. The liberty therefore stands
reserved in favour of the petitioner to file
an application in prescribed form for
appointment of the guardian in respect of
Shri Sandeep Kumar Sharma before the
respondent authorities. It is also to be noted
that the respondent authorities on receipt of
the application is required to process the
application expeditiously, keeping in view
of the fact that a person with disability
including mental retardation cannot be
permitted under law to remain for a long
period without a guardian as the same may
be detrimental to the right and interest of
the person with disability.

31. In view of the aforesaid, it is
hereby directed that the petitioner shall
move an application in the prescribed
format for appointment of guardian of Sri
Sandeep Kumar Sharma along with all the
relevant documents before the District
Magistrate, Bijnor and on the receipt of the
aforesaid
application,
the
District
Magistrate, Bijnor shall place the same
before
the
Local
Level
Committee
constituted under the Act No.44 of 1999 for
consideration of the application of the
petitioner for issuance of certificate of
guardianship
of
Sri
Sandeep
Kumar
Sharma in favour of the petitioner. The
Local Level Committee shall accord
consideration on the aforesaid application
of
the
petitioner
and
after
giving
opportunity of hearing to all the concerned
and affected parties, decide the same in
accordance with law, within a period of
three months from the date of filing of the
application by the petitioner under the
order of this Court.

32. It is reminded to the District
Magistrate, Bijnor that a person who is
mentally retarded and who has lost his
parents cannot be permitted to remain
without a guardian for a long period of time
and considering the object of the Act, it is
imperative on the Local Level Committee
to accord such consideration in accordance
with law within the time prescribed.

33. It is, however, made clear that this
Court has not considered the merits of the
application for grant of guardianship in
favour of the petitioner and the Local Level
Committee/District
Magistrate
shall
consider the application of the petitioner in
accordance with law.

34. In view of the aforesaid, the writ
petition stands disposed off.
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(2022)01ILR A815
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 36732 of 2013

M/s SDB Infrastructure Pvt. Ltd. New
Delhi & Anr. ...Petitioners
Versus
Presiding Officer Industrial Tribunal &
Anr. ...Respondents

Counsel for the Petitioners:
Chandra Bhan Gupta, Om Prakash

Counsel for the Respondents:
C.S.C., Mani Shanker Sahu, Sri Ramgee
Prasad

A. Labour law - Adjudication - Authorized
representative withdrew from the case -
Ex-parte
award
was
passed
without
intimation and notice to the employer -
Validity challenged - Held, the learned