Monday, 22 October 2018

PLJ 2018 Lahore 568

PLJ 2018 Lahore 568
Present: Mrs. Ayesha A. Malik, J.
AHSIN ARSHAD etc.--Petitioners
versus
ADVOCATE GENERAL, PUNJAB etc.--Respondents
W.P. No. 30737 of 2012, decided on 3.11.2017.
Mental Health Ordinance, 2001--
----Ss. 29, 30, 33, 36 & 37--Mental disorder--Application for appointment of a manager of property--Declined--Territorial Jurisdiction--Residence of mental disorder person in abroad--Question of--Whether consent of under Section 29 of Ordinance is a substantive function ii. Whether applicant must reside within jurisdiction of Court of protection--Challenge to--Consent sought for under Section 29 of Ordinance is limited to three aspects, first to ensure that mentally disordered person and relatives who seek guardianship/managership reside within jurisdiction of Court of Protection, secondly that there is a mentally disordered person for whose property an application under Section 32 or 33 has been made and finally that relatives of such person have moved application--It is a settled law that language of statute must be given meaning which is consistent with objectives of Ordinance. Ordinance under review was promulgated to protect mentally disordered persons and their property--Under circumstances Court of Protection is required to constantly manage affairs of property and to supervise care of mentally disordered person. This can only be done if mentally disordered person and guardian or manager reside within jurisdiction of Court of Protection--Petition was dismissed.                             [Pp. 572 & 573] A, B & C
Mr. Muhammad Iqbal AwanAdvocate for Petitioners.
Mr. Anwaar Hussain, Addl. AG. for Respondents.
Date of hearing: 3.11.2017.
Judgment
Through this petition, the Petitioners have impugned letter dated 1.11.2012 issued by Respondent No. 1, Advocate General, Punjab, Lahore whereby permission sought under Section 29 of the Mental Health Ordinance, 2001 (“Ordinance”) was declined.
2.  The instant petition is filed through special attorney Muhammad Arshad Parwaiz, who is the father of the Petitioners. The mother of the Petitioners Naghmana Akhtar is statedly suffering from mental disorder and she is unable to take care of herself and her property. Consequently the Petitioners seek appointment of a manager of the property of Naghmana Akhtar under the Ordinance. In this regard, the Petitioners filed an application under Section 29 of the Ordinance before Respondent No. 1 seeking his consent, which application was rejected on the ground that Naghmana Akhtar did not reside within the territorial jurisdiction of the Court of Protection. Learned counsel for the Petitioners argued that the consent required under Section 29 of the Ordinance is a clerical function and the Respondent No. 1 is not allowed to seek the presence of the Petitioners or their mother for the purposes of giving his consent. He argued that in doing so he has usurped the jurisdiction of the Court of Protection. Learned counsel further argued that the Court of Protection as per Section 30 of the Ordinance may decide whether it requires the attendance and examination of any person including the person with mental disorder and this power lies exclusively with the Court of Protection and not the Advocate General’s Office. Learned counsel further argued that the mother of the Petitioners cannot travel, therefore cannot come to Pakistan. Moreover the Petitioners are entitled to take care of her property, hence they seek permission to be appointed as manager of her property under Section 33 of the Ordinance so that they can manage the affairs of the property. Learned counsel concluded that while permanent residence of the Petitioners is in Pakistan, currently they live in New York, hence the impugned order is illegal.
3.  On behalf of the Respondents, Mr. Anwaar Hussain, Additional AG argued that the “consent” required under Section 29 of the Ordinance is not a clerical or post office function. It is a substantive function, in order to ensure that the objectives of the Ordinance are achieved. He argued that a mentally disordered person who does not reside within the jurisdiction of the Court of Protection cannot be given consent under Section 29 of the Ordinance. He further argued that the “consent” under Section 29 of the Ordinance is meaningful consent whereby the office of Respondent No. 1 is to ensure that prima facie there is a mentally disordered person, who resides within the jurisdiction of the Court of Protection. Further that the applicant seeking to be appointed manager under Section 33 of the Ordinance is a relative who also resides within the jurisdiction of the Court of Protection. He explained that since neither of the parties havepresented themselves before the Respondent No. 1 nor do they reside within the jurisdiction of the Court of Protection, the application of the Petitioners was turned down.
4.  Heard and record perused.
5.  The issue before the Court is the role of the Advocate General’s Office under Section 29 of the Ordinance. The stated Section reads as follows:
Whenever any person is possessed of property and is alleged to be mentally disordered, the Court of Protection, within whose jurisdiction such person is residing may, upon application by any of his relatives, having obtained consent in writing of the Advocate General of the Province concerned, by order direct an inquiry for the purpose of ascertaining whether such person is mentally disordered and incapable of managing himself, his property and his affairs.
In terms of this Section if a person applies to be appointed as manager under Section 33 of the Ordinance, an application must be made before the Advocate General’s Office seeking his consent to file the application before the Court of Protection. If a person is alleged to be mentally disordered, the Advocate General’s Office must satisfy itself that there is a mentally disordered person, residing within the jurisdiction of the Court of Protection for whose property, a manager is sought to be appointed under Section 33 of the Ordinance. As per the Section, it is only upon receipt of this “consent” that the application can be placed before the Court of Protection. The question that arises in this case is whether consent under Section 29 of the Ordinance is a substantive function and whether the applicant must reside within the jurisdiction of the Court of Protection.
6.  The preamble of the Ordinance provides that it is an Ordinance relating to mentally disordered persons with respect to their care and treatment and the management of their property. Chapter vs. of the Ordinance deals with judicial proceedings for appointment of guardian of person and manager of the property of the mentally disordered by the Court of Protection. The proceedings are regulated by Sections 30 and 31 of the Ordinance, in terms whereof the Court may require the alleged mentally disordered person to attend the proceedings in order to check the mental capacity and condition of that person. The Court can also call for personal examination of such person and inquire in the matter in order to ascertain whether that person is capable of managing his or her affairs or whether a guardian is required under Section 32 of the Ordinance. In order to achieve this purpose the presence of the mentally disordered person is necessary. The office of the Advocate General’s Office, at the time of issuance of his consent, ensures that the mentally disordered person as well as the relatives who have applied for guardianship or managership are available to present themselves before the Court of Protection. The legislature in its wisdom created a first level of inquiry through the Advocate General’s Office to ensure on the genuineness of the application as well as the fact that prima facie there is a case to be placed before the Court of Protection. This heightened protection is given to protect a person who cannot coherently protect his or her rights or property. It is, therefore, a substantive function carried out by the Advocate General of the Province to protect the person alleged to be mentally disordered and to protect his or her property. If this function is considered to be a ministerial function, the mandate of the law, which essentially is to protect mentally disordered persons and their property would be defeated.
7.  Furthermore the consent sought under Section 29 of the Ordinance means that the Advocate General’s Office has to agree that the pre-requisites of Section 29 are satisfied. The word “consent” means to agree to do something, hence the Advocate General’s Office has to agree that the application under Section 29 of the Ordinance may be filed. The requirement of giving his consent therefore cannot be considered mechanical as it requires some degree of probe and reasoning before acceptance of the request for filing the application. In this regard, the consent sought for under Section 29 of the Ordinance is limited to three aspects, first to ensure that the mentally disordered person and the relatives who seek guardianship/ managership reside within the jurisdiction of the Court of Protection, secondly that there is a mentally disordered person for whose property an application under Section 32 or 33 has been made and finally that the relatives of such person have moved the application. The Advocate General’s Office has to satisfy himself on all elements before he can agree to the filing of such an application. This means that he has to in the first instance ensure that the mentally disordered person and the applicant reside within the jurisdiction of the Court of Protection.
8.  It is a settled law that the language of statute must be given meaning which is consistent with the objectives of the Ordinance. The Ordinance under review was promulgated to protect mentally disordered persons and their property. The purpose of the consent given by the Advocate General’s Office therefore is a meaningful function which is clear from a bare reading of Section 29 of the Ordinance and which is in furtherance of the protection given under the Ordinance. The Court of Protection has to administer the property of a mentally disordered person which requires constant monitoring and supervision. Section 36 of the Ordinance requires the manager to seek permission of the Court with reference to the property of the mentally disordered person. Section 37 of the Ordinance requires the manager to furnish an inventory of all immovable property, all assets and other moveable property to the Court of Protection. It also provides that all transactions with reference to the property of the mentally disordered person shall be through an authorized bank approved by the Court. The Court of Protection fixes all fees and expenses to be paid, releases payment for treatment of the mentally disordered person and supervises the investment of his or her assets. Under the circumstances the Court of Protection is required to constantly manage the affairs of the property and to supervise the care of the mentally disordered person. This can only be done if the

mentally disordered person and the guardian or manager reside within the jurisdiction of the Court of Protection. Therefore the consent required by the Advocate General’s Office ensures that the guardian or manager and the mentally disordered person are residing within the jurisdiction of the Court of Protection so that both can be regularly supervised and monitored. In this case, since neither the mentally disordered person nor the proposed manager reside within the jurisdiction of the Court of Protection, the application was rightly dismissed.
9.  In view of the aforesaid, no case for interference is made out. The instant petition is dismissed.
(Y.A.)  Petition dismissed


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