Calcutta High Court (Appellete Side)
Vishal Osatwal vs State Of West Bengal & Ors on 1 August, 2023
04
01.08.2023
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A. No. 17528 of 2023
Vishal Osatwal
Vs.
State of West Bengal & Ors.
Mr. Siddhartha Lahiri,
Mr. Aritra Chakraborty,
Mr. Debraj Dutta
...for the petitioner
Ms. Tuli Sinha
` ... for the State
Mr. Amitabha Nayak,
Ms. Rumna Sahin
...for the respondent no. 2
Ms. Aditi Singhania
...for the respondent nos. 3 to 5
The petitioner, being the son of a person, who is
in a comatose condition, has applied by way of this
writ petition for being appointed as the
nominee/guardian of his comatose father, for
carrying out necessary acts and transactions with
regard to the person and property of his father.
Learned counsel appearing for the petitioner
places reliance on several judgments and submits,
in all fairness, that a medical board be appointed to
ascertain the actual physical and mental condition
of his father prior to passing any order.
Learned counsel appearing for the respondent
no. 2 points out that, within the contemplation of
Order 32A of the Code of Civil Procedure, the
prayers made in the writ petition ought to be
decided by a competent civil court. That apart, it is
contended that there are two types of vegetative
states of comatose - one persistent and the other
permanent.
It is submitted that unless it is ascertained by
way of appointment of a medical board as to the
extent of the disability of the person concerned,
there cannot be any appointment as sought for.
Learned counsel appearing for the respondent
no. 2 further points out that the affidavits of the
other relatives of the comatose person, annexed to
the writ petition, are in the nature of powers of
attorney. That apart, from the affidavit of the
daughter of the concerned person, annexed at page
152 of the writ petition, the same appears to have
certain irregularities, since the date of affirmation is
not clear from the same. It is submitted that the
veracity of such affidavit ought to be ascertained,
since the date of affirmation might be prior to
purchase date of the stamp on which it is
supposedly affirmed.
Upon hearing learned counsel for the petitioner
and the respondent no. 2, it is seen that the nature
of the litigation is not adversarial. Learned counsel
for the respondent no. 2 has raised an arguable
issue as regards the maintainability of the writ
petition, in the teeth of available alternative remedy
by way of a civil suit. The said question is
undoubtedly required to be decided at the stage of
final hearing and passing of final orders.
However, for the time being, the appointment of
a medical board appears to be the immediate
solution to ascertain the condition of the patient.
However, since a relevant objection has been
raised by learned counsel for the respondent no. 2
regarding the veracity of affidavit, annexed at page
152 of the writ petition, learned counsel for the
proforma respondents, including the said daughter
of the allegedly comatose person, shall furnish the
original of the affidavit, a copy of which has been
annexed at page 152 of the writ petition, on the
next returnable date. For such purpose, the matter
is adjourned till August 08, 2023, when it will be
listed fairly at the top of the list.
It may further be mentioned that although at
the beginning of the hearing, the State was
represented through counsel, at the time when
views were being asked from counsel for the
purpose of appointment of a medical board, none
was present for the State. As such, no decision on
the appointment of medical board could be taken
today. Although learned counsel for the State
makes an appearance at the time when the order is
almost being concluded, the appointment of
medical board is kept reserved for the next date,
since a direction has already been issued for
production of the original of affidavit, a copy of
which is annexed at page 152 of the writ petition.
(Sabyasachi Bhattacharyya, J.)
