Vishal Osatwal vs State Of West Bengal And Others
2023 Latest Caselaw 6768 Cal

                     In the High Court at Calcutta
                    Constitutional Writ Jurisdiction
                             Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                          W.P.A. NO. 17528 of 2023

                              Vishal Osatwal
                                   Vs.
                     State of West Bengal and others

     For the petitioner             :    Mr. Siddhartha Lahiri
                                         Mr. Aritra Chakraborty
                                         Mr. Debraj Dutta

     For the State-respondent        :   Ms. Tuli Sinha

     For the respondent no.2         :   Mr. Amitabha Nayak



     For the respondent nos. 3 to 5 :    Ms. Aditi Singhania


     Hearing concluded on           :    25.09.2023

     Judgment on                    :    05.10.2023



     Sabyasachi Bhattacharyya, J:-

1.   The petitioner is the son of Sri Rajesh Kumar Osatwal.       Proforma

respondent no.3 is the wife and Proforma respondent nos.4 and 5 are

the daughters of the said Rajesh.

2. Rajesh, while attending a family wedding in Secunderabad, suffered

from a heavy chest congestion and chest pain on November 21, 2015

and was transported to a hospital in Secunderabad. Upon treatment,

he showed signs of improvement. However, on November 24, 2015,

at about 10a.m., the patient developed right-sided Hemiparesis

accompanied by right-sided Upper Motor Neuron (UMN) type of VII

Nerve Palsy. A massive subdural hematoma on the left side of the

brain extending from the frontal to occipital region was discovered on

CTScan. Due medical procedure was carried on under expert

supervision on the petitioner‟s father thereafter.

3. On November 26, 2015, another CT scan revealed an acute

intracerebral haemorrhageaffecting the right capsule ganglionic region

accompanied by surrounding oedema. The patient remained on

ventilator continuously for a month thereafter and was released on

December 23, 2015, upon which he was taken a health-care centre at

Hyderabad namely Suvitas Holistic Healthcare Pvt. Ltd., which is a

leading rehabilitation centre, on inpatient transition care facility for

comprehensive nursing care, physiotherapy and specialized medical

nutrition. All the children of Rajesh and his wife, including the

petitioner, used to travel to and fro between Hyderabad and their

residences during the said period.

4. On April 29, 2016, the petitioner‟s father had to be readmitted to the

Krishna Institute of Medical Sciences Limited with fever and blood in

his urine. After about 15 days, the patient was discharged on May 13,

2016 with the same pre-existing medical condition and was taken

back to the same Rehabilitation Centre, Suvitas.

5. The patient‟s treatment continued. Ultimately, on October 14, 2016,

the petitioner‟s father was discharged from Suvitas and was flown to

Kolkata via air ambulance. The petitioner accompanied him. The

patient was brought to the family residence of the petitioner at 34/1U,

Ballygunge Circular Road, Kolkata- 700 019.

6. Thereafter, the petitioner‟s father has been residing in a designated

area in the said residence which has been converted into a well-

equipped ward resembling the critical care environment of an

Intensive Care Unit (ICU), conducive to the proper care and medical

treatment of the patient. The patient was thereafter admitted to the

Park Clinic, Kolkata on February 6, 2017 for D1 Vertebral

Compression Fracture with phytic deformity and was discharged on

February 8, 2017. Since then, the petitioner‟s father Rajesh has been

under continuous medical and nursing care at home and has been all

along in a comatose condition.

7. The treatment of Rajesh requires immense expenses. For the past

eight years, the petitioner and his mother have been financing the said

treatment and nursing care using their family savings. However, it is

pleaded that the financial burden has become increasingly

overwhelming. Unless access is given to the petitioner to the funds of

his father lying in his bank accounts and his property, it will be

extremely difficult to meet the mounting expenses for the treatment of

the comatose Rajesh. In such circumstances, the petitioner seeks to

be appointed as a guardian of the person and property of his father

Rajesh, details of which properties have been enumerated in the writ

petition itself.

8. In support of his submissions, learned counsel for the petitioner cites

the judgments of several High Courts and two reports of the Supreme

Court, which shall be discussed presently. I must express

appreciation to learned counsel for the petitioner for having

undertaken extensive research work on the evolving law in the field.

9. Learned counsel appearing for the Union of India argues that the writ

petition is barred under Order XXXIIA of the Code of Civil Procedure.

It is argued that as per the said provision, the application should have

been filed before a civil court.

10. Heard learned counsel for the parties. The first judgment relied on by

the petitioner is Charan Lal Sahu Vs. Union of India, reported at (1990)

1 SCC 613. The said case pertains to the tragic gas leak disaster at

Bhopal.

11. The said judgment has been cited by the petitioner in support of the

concept of Parens Patriae. In the said judgment, the Supreme Court

adopted the principle to hold that the State and the court could act as

the constitutional protector of all property in matters of public

concern.

12. The petitioner next cites Aruna Ramachandra Shanbaug Vs. Union of

India and others, reported at (2011) 4 SCC 454. In the said case, the

Supreme Court was dealing with physician-assisted death by way of

euthanasia. ArunaShanbaug was in a vegetative state. The Supreme

Court again adopted the principle of Parens Patriae, conferring on the

High Court the status of granting approval to the relatives and next of

kinof the patient to decide whether to withdraw her life support.

13. In Shobha Gopalakrishnan Vs. State of Kerala Represented by the

Secretary, Health and Family welfare Department, Government

Secretariat and Others, reported at 2019 SCC OnLine Ker 739, a

Division Bench of the Kerala High Court, apparently as a first,

formulated certain guidelines. Upon consideration of several relevant

Acts like the Guardians and Wards Act, 1890, the Mental Health Act,

1987, etc., the court fixed the said guidelines as a temporary measure

till the Legislature enacted proper statutes in respect of victims lying

in a comatose state. The said guidelines are as follows:

i) petitioner/s seeking for appointment of Guardian to a person

lying in comatose state shall disclose the particulars of the

property, both movable and immovable, owned and possessed by

the patient lying in comatose state.

ii) The condition of the person lying in comatose state shall be got

ascertained by causing him to be examined by a duly constituted

Medical Board, of whom one shall definitely be a qualified

Neurologist.

iii) A simultaneous visit of the person lying in comatose state, at his

residence, shall be caused to be made through the Revenue

authorities, not below the rank of a Tahsildar and a report shall

be procured as to all the relevant facts and figures, including the

particulars of the close relatives, their financial conditions and

such other aspects.

iv) The person seeking appointment as Guardian of a person lying in

comatose state shall be a close relative (spouse or children) and

all the persons to be classified as legal heirs in the due course

shall be in the party array. In the absence of the suitable close

relative, a public official such as 'Social Welfare officer' can be

sought to be appointed as a Guardian to the person lying in

'comatose state'.

v) The person applying for appointment as Guardian shall be one

who is legally competent to be appointed as a Guardian vi) The

appointment of a Guardian as above shall only be in respect of

the specific properties and bank accounts/such other properties

of the person lying in comatose state; to be indicated in the order

appointing the Guardian and the Guardian so appointed shall act

always in the best interest of the person lying in 'comatose state'.

vi) The person appointed as Guardian shall file periodical reports in

every six months before the Registrar General of this Court, which

shall contain the particulars of all transactions taken by the

Guardian in respect of the person and property of the patient in

comatose state; besides showing the utilization of the funds

received and spent by him/her.

vii) The Registrar General shall cause to maintain a separate Register

with regard to appointment of Guardian to persons lying in

'comatose state' and adequate provision to keep the Reports filed

by the Guardian appointed by this Court.

viii) It is open for this Court to appoint a person as Guardian to the

person lying in comatose state, either temporarily or for a

specified period or permanently, as found to be appropriate.

ix) If there is any misuse of power or misappropriation of funds or

non-extension of requisite care and protection or support with

regard to the treatment and other requirements of the person lying

in comatose state, it is open to bring up the matter for further

consideration of this Court to re-open and revoke the power, to

take appropriate action against the person concerned, who was

appointed as the Guardian and also to appoint another

person/public authority/Social Welfare Officer (whose official

status is equal to the post of District Probation Officer) as the

Guardian.

x) It shall be for the Guardian appointed by the Court to meet the

obligations/duties similar to those as described under Section 15

of the National Trust Act and to maintain and submit the accounts

similar to those contained in Section 16.

xi) The Guardian so appointed shall bring the appointment to the

notice of the Social Welfare Officer having jurisdiction in the place

of residence, along with a copy of the verdict appointing him as

Guardian, enabling the Social Welfare Officer of the area to visit

the person lying in 'comatose state' at random and to submit a

report, if so necessitated, calling for further action/interference of

this Court.

xii) The transactions in respect of the property of the person lying in

'comatose state', by the Guardian, shall be strictly in accordance

with the relevant provisions of law. If the Guardian appointed is

found to be abusing the power or neglects or acts contrary to the

best interest of the person lying in 'comatose state', any relative

or next friend may apply to this Court for removal of such

Guardian.

xiii) The Guardian appointed shall seek and obtain specific permission

from this Court, if he/she intends to transfer the person lying in

comatose state from the jurisdiction of this Court to another State

or Country, whether it be for availing better treatment or

otherwise.

14. The same guidelines were adopted by a learned Single Judge of the

Delhi High Court in Vandana Tyagi and Another Vs. Government of

National Capital Territory of Delhi and Others, reported at 2020 SCC

OnLine 32.

15. A Division Bench of the High Court at Allahabad in Uma Mittal and

Others Vs. Union of India and Others, reported at 2020 SCC OnLine All

777, observed that the court cannot shirk its responsibility when a

distress call is given by a sinking family of a person lying in a

comatose state for the past year and a half. The dominant factor,

after all, is not enforcement of rights guaranteeing protection of life of

warring parties under Article 226 of the Constitution but the

protection of the rights of a human being lying in a comatose state

under Article 21 of the Constitution of India. The court, taking a cue

from Shobha Gopalakrishnan (supra), went on to adopt the same

guidelines. The court accepted a medical report submitted by a

medical board and appointed the petitioner no.1 therein as the

guardian of her husband who was in a comatose condition.

16. A Division Bench of the Bombay High Court in Rajni Hariom Sharma

Vs. Union of India and Another, reported at 2020 SCC OnLine Bom 880

considered the same issue including whether Order XXXIIA of the

Code of Civil Procedure could be a bar. The court entertained the

application under Article 226 and proceeded to pass appropriate

orders ex debito justitiae.

17. A learned Single Judge, in Arun George Antony Vs. Union of India,

represented by its Secretary, Ministry ofHealth and Family welfare

Department, Government Secretariat and Others, reported at 2020 SCC

OnLine Ker 19909, proceeded on the same premise, as did a learned

Single Judge of the Telagana High court in Prabhat Vinnakota Vs.

State of Telangana and Others, reported at 2023 SCC OnLine TS 511,

and a learned Single Judge of the Gauhati High Court in Ayan Kumar

Das and Another Vs. Union of India and Others, reported at (2023) 1

Gauhati Law Reports 354.

18. The question which presents itself before us is whether the principle

as laid down in the above judgments should be followed in the case at

hand.

19. In the present case, the petitioner‟s father, as discussed above and

affirmed on oath, is undoubtedly in a comatose condition.

20. All the heirs and legal representatives of the comatose person, namely

Rajesh, are impleaded in the present writ petition and have offered

their consent to the reliefs sought herein.

21. Vide order dated August 8, 2023, the State was directed to constitute

a medical board comprised of four eminent medical practitioners in

their respective fields, having expertise respectively in the fields of

neurology, psychiatry, cardiology and medicine. Such a Board was

duly constituted and reports have been filed, which are on record.

22. A communication made by the Medical Superintendent-cum-Vice

Principal, IPGMER-SSKM Hospital, Kolkata on August 26, 2023

indicates that the physical and neurological condition of the patient

Rajesh Kumar Osatwal was ascertained by the Board at his residence

on August 21, 2023 at 12.30 pm.

23. A copy of the opinion of the Board, signed by all its members, dated

August 21, 2023 has also been presented. The Medical Board

comprised of Dr. Sanjoy Kumar Chatterjee, Professor & HOD of

Medicine of the said hospital, Dr. Atanu Biswal, Professor & HOD of

Neuromedicine, Dr. (Prof.) Amit Kumar Bhattacharyya, Director of IOP

COE and Dr. Saroj Mandal, Professor of the Department of Cardiology.

24. It appears from the report that, after thorough examination of Mr.

Rajesh Osatwal, the Board members have unanimously arrived at the

conclusion that his present physical, mental and neurological

condition make him incapable of taking care of himself and perform

day-to-day activities at present. He is currently bedridden, unable to

comprehend and communicate, and not in a state of taking any

decision.

25. Thus, it is beyond doubt that the patient is bedridden and incapable

of comprehension and communication, let along being able to take

any decision and perform day-to-day activities.

26. Thus, the petitioner‟s father is in a comatose condition, incapable of

looking after his own interests and well-being.

27. Insofar as Order XXXIIA of the Code of Civil Procedure is concerned,

the said provision is not applicable at all in the circumstances of the

case. The said provision deals with suits relating to matters

concerning the family. In matters concerning the family, as per the

said Order, proceedings may be held in camera, the court has a duty

to make efforts for settlement and it is open to the court to secure the

services of a welfare expert.

28. This is not a suit relating to "matters concerning the family". Rather,

this is a writ petition filed by the petitioner on behalf of his now-

incapable father, for protecting his comatose father‟s right to life,

guaranteed under Article 21 of the Constitution of India. Right to life

includes the right to live a dignified life worth the name, with the

entire bundle of rights associated with it. Hence, Order XXXII A of the

Code of Civil Procedure is not attracted in any manner whatsoever.

29. None of the said provisions are germane in the present context. Order

XXXII of the Code provides for suits by or against minor and persons

unsound mind, which the present writ petition is not.

30. A person in a comatose condition is not a person of "unsound mind".

Unsound mind connotes that a person‟s mental faculties are impaired,

affecting his actions and decisions. However, an unsound mind

presupposes a functional mind, which does not operate at its

optimum capacity for some reason or the other. A person in a

comatose condition, as opposed to one of„unsound mind‟, is incapable

of taking care of himself or even to comprehend, respond to stimuli or

communicate.

31. There is no statute in India which provides for appointment of

guardian to take care of comatose persons or persons in a vegetative

state.

32. None of the available statutes are relevant in such cases. The statutes

relating to mental health do not apply, since those deal with mentally

ill persons having mental disorder or retardation of sorts, but not

persons who are in an inert condition, incapable of interacting

meaningfully with their environment. For them, life passes by without

registering any chord. Left unattended or uncared for - medically and

socially, such a person is incapable of surviving. The Guardians and

Wards Act and similar statutes, on the other hand, dealswith minors

and dependents. Specific statutes pertaining to persons with Autism,

Cerebral Palsy, mental retardation and multiple psychological

disabilities also do not accommodate the condition of the patient in

the present case.

33. In any event, there is no question of relegating the petitioner to a civil

suit, keeping in view the urgent need of operating the movable

properties and dealing with the immovable properties of the

petitioner‟s father, the comatose patient, primarily to fund the huge

expenses of regular upkeep of the medical facilities and expert care for

the patient himself.

34. As repeatedly observed in the judgments discussed above, the concept

of Parens Patriae has found considerable currency in the Indian legal

environment.

35. The fundamental rights guaranteed under the Constitution of India, in

particular Article 21, which recognizes the right to life, includes the

right to live with dignity. In order to confer such right on the patient, it

is required that his resources are appropriately channelized for his

own treatment and well-being.

36. Thus, the appropriate recourse for the petitioner is the one which has

been adopted, that is, invocation of the jurisdiction of this court under

Article 226 of the Constitution of India to ensure the right to live with

dignity of the patient, for the protection of which the petitioner seeks

to be appointed a guardian of the person and property of his father.

37. The guidelines in Shobha Gopalakrishnan (supra), followed in Vandana

Tyagi (supra) and Uma Mittal (supra), provide a roadmap for the

Legislature to follow. However, till such legislation is enacted for the

care of comatose persons, the guidelines stipulated therein operate as

a workable solution.

38. Hence, the said guidelines, as set out in paragraph no. 13 above, are

adopted herein.

39. Insofar as the present case is concerned, the petitioner has sufficiently

established that he has been looking after his father, who is in a

comatose state for quite some time, and is capable and sensitive

enough to look after his father in the capacity of a guardian/legal

representative.

40. Accordingly, WPA No. 17528 of 2023 is allowed, thereby appointing

the petitioner Vishal Osatwal as the guardian and legal representative

of his father Mr. Rajesh Kumar Osatwal. The petitioner shall

henceforth act as the sole agent and legal representative of Rajesh

Kumar Osatwal in the capacity of his guardian and deal with all

movable and immovable properties of the said patient.

41. The properties in respect of which the petitioner is being appointed

guardian of Rajesh Osatwal are in terms of Schedule A of the writ

petition which is replicated hereinbelow:

SCHEDULE A

IMMOVABLE PROPERTIES Particulars

1. 25% Share in Residential House at 34/IU, Ballygunge Circular Road, Kolkata-700 019

2. Land at Rajarhat in Kalikapur Mouza under Dag No.1159 and 1219 measuring about 7 Cottahs

3. Share of Land in Plot No E, Dag No. 715 Mahesh Colony, Block No. 48. Mahesh Housing Cooperative Colony Society, P.S. Sreerampore, District Hooghly MOVABLE PROPERTIES Particulars

4. i) Locker having no. 2018 at axis bank, golpark branch connected with savings a/c. No. 910010028682047

ii) Locker having no. 3020 at Axis Bank, Golpark Branch connected with savings a/c. No. 910010028629677

iii) Locker having no. e-33 at Punjab National Bank, Shakespeare Sarani Branch connected with savings a/c. no. 3190000100057037 with Late Bimla Osatwal (mother) and Manju Osatwal, proforma respondent no.3

iv) Locker having no. e-31 at Punjab National Bank, Shakespeare Sarani branch connected with savings a/c. no. 3190000100057055 with Later Bimla Osatwal (Grand-mother of Petitioner) and Anuja Osatwal, sister of Rajesh Kumar Osatwal.

5. Shares & Debentures in his name hold in Demat in following Demat accounts:

iii) DP NAME :- IDBI BANK DP ID:- IN300450 Client ID :- 12669245

iv) DP NAME :- AUM Capital Market Pvt. Ltd.

DP ID :- 12057800 Client ID :- 00027837

6. Public Provident Fund till date in A/c No. 1703801765 with GPO.

7. Balance as on date with the IDBI Bank Brabourne Road Branch, Kolkata-700001 Savings A/c No. 060104000077190 IFSC CODE: IBKL0000060

8. All Loan & Advances Given

42. However, the petitioner shall, every three months for the first year and

thereafter every six months, file detailed accounts in the form of a

report indicating the transactions and dealings undertaken by the

petitioner with regard to the moveable and immovable property of his

father Rajesh Kumar Osatwal up to that period. The report, further,

shall also include the current medical condition of Rajesh Kumar

Osatwal. Relevant documents in support of the report shall also be

annexed along with it. The said report shall be filed before the

Department of Women and Child Development and Social Welfare,

Government of West Bengal.

43. The first of such reports shall be filed (for the transactions from this

date till December 31, 2023) in next January, positively by the 10th

day of January, 2024. Throughout the year 2024, the petitioner shall

continue to file similar quarterly reports. For example, after January,

the next report will be filed between April 1 and 10, 2024 and so on

and so forth.

44. From the year 2025 onwards, the petitioner shall file similar reports

every six months, by the 10th of the month when it becomes due.

45. During the entire period, in the event there is any discrepancy in the

said reports, the Department of Women and Child Development and

Social Welfare shall place the matter in writing before theRegistrar

General of this Court. Upon such communication being made, the

learned Registrar General shall place the same before the appropriate

Bench having determination to take up residuary matters and/or

place the same before the Hon‟ble the Chief Justice for allocating the

same before any Bench for passing appropriate orders thereon.

46. It will be open to any person, at any point of time, to file an

application before this Court seeking appropriate orders for alteration

of this order and/or change of guardian/legal representative of Rajesh

Kumar Osatwal, citing sufficient reasons for such prayer.

47. The petitioner shall ensure that the resources of his comatose father

Sri Rajesh Kumar Osatwal are prudently and optimally invested and

used to cater to all the needs of the said Rajesh throughout the

patient‟s lifetime or in, case of recovery of Sri Rajesh Kumar Osatwal

from his present comatose condition, till such recovery takes place. In

the event of the recovery of Rajesh from his present comatose

condition and/or his demise, the petitioner shall immediately file an

appropriate writ petition intimating this court of such development

and seek appropriate orders.

48. I part with the expectation that the Legislatures - both the Union

and/or the States -shall immediately look into the issue of legislative

vacuum in the field, repeatedly being pointed out by several High

Courts, and enact an appropriate statute and/or pass proper

guidelines for the purpose of looking after the person and property of

comatose persons and the modalities regarding the same.

49. There will be no order as to costs.

50. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )