Gujarat High Court
Samina Akbar Shaikh vs State Of Gujarat on 20 October, 2021
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16492 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SAMINA AKBAR SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR. JAIMIN R DAVE(7022) for the Petitioner(s) No. 1
MS.SURBHI BHATI, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 4
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 20/10/2021
ORAL JUDGMENT
1. Issue Rule, returnable forthwith. Ms.Surbhi Bhati, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent-State.
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C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021
2. By this petition, the petitioner has invoked the extraordinary jurisdiction of this Court seeking appointment as guardian as well as manager of one Mr.Akbar Ahmed Shaikh i.e. father of the petitioner (hereinafter referred to as "the patient", as and when the context warrants) in her capacity as daughter of Mr.Akbar Ahmed Shaikh, since he is suffering from comatose state.
3. Tersely stated are the facts:
3.1 The patient, was an orthopedic surgeon by profession. During December 2015, he had gone for pilgrimage in Jeddah, Saudi Arabia and on 30.12.2015, at around 05.30 a.m. while disembarking from the hotel, he met with an accident with a bus. The said accident caused serious head injuries and the patient, immediately went into comatose state, and had suffered an irreversible brain damage due to the dreadful accident.
3.2 Apropos the accident, the patient was immediately admitted to Noor Hospital, Mecca for treatment, which continued for more than 50 days; however, the patient continued to remain in comatose state and unfortunately, the treatment did not show any sign of meaningful recovery or improvement. Following the opinion of the doctors, the petitioner and her mother decided to airlift the patient to India for further treatment and upon arrival, the patient was examined and treated by different doctors at various hospitals;
however, no improvement was observed in his condition and he is in comatose state since last past five years.
Page 2 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 3.3 Since there was no improvement in condition, doctor discharged the patient from hospital and advised the petitioner to take his care at home with continued supportive treatment during lifetime. All necessary medical facilities have been arranged by the petitioner and her mother to take proper care of the patient. According to the petitioner, presently, the patient is treated by Dr.Dhiren M. Bakshi, MD, Consulting Physician, who on 14.10.2020 has certified that the patient, aged 69 years is in state of coma/mentally disable person and is incapable of managing his own affairs after the head injury.
3.4 According to the petitioner, she has spent around lakhs of rupees towards medical expenses and upkeep of the patient. The petitioner has managed the funds for medical and other expenses with the help and assistance of close friends and relatives. According to the petitioner, due to comatose state since past five years, the patient has lost his mental capacity of taking any decisions with respect to his assets. It is also the case of the petitioner that she and her mother are unable to administer, manage and sale patient's personal and co-owned assets in absence of any valid authorisation. It is the case of the petitioner that she and her mother are in acute need of financial support for the purpose of continuing treatment of the patient. Hence, it is utmost necessary to authorize the petitioner to administer, manage and dispose of the assets of the patient for his own welfare and treatment.
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C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 3.5 It is also the case of the petitioner that the patient was sole bread earner for the petitioner and her mother and on account of sustained comatose state, the petitioner and her mother are running out of financial resources even to meet their basic needs. Therefore, it is necessary that the petitioner is appointed as guardian of the patient so that she can deal with the properties and assets of the patient for his treatment and care as indicated in para 3.13 of the memo of the petition.
3.6 With this background, the petitioner has approached this Court for appointing her as guardian of the patient who is in comatose state, on the ground that none of the legislations in India provide for appointment of guardian of a person in comatose state, unlike legislation for appointment of guardian for minors and person with other disabilities like mental retardation etc.
4. Mr.Jaimin R. Dave, learned advocate appearing for the petitioner submitted that the patient is in comatose state and the petitioner has no other efficacious remedy for appointment as guardian of her father. Mr. Dave, learned advocate further submitted that there are various legislations, which deal with the appointment of guardian for minor as well as person with mental disabilities namely (i) The Guardian and Wards Act, 1890 (ii) The Mental Health Act, 1987 (repealed) (iii) The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 and others which takes care of Page 4 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 the appointment of the guardian in the respective legislations. It is also submitted that the petitioner, had filed an application before the District Court at Navsari being Civil Miscellaneous Application No.25 of 2020 under the provisions of the Mental Health Act, 1987 but the enactment having been repealed, the petitioner, was compelled to withdraw the said application. It is submitted that even otherwise the District Court does not have jurisdiction to adjudicate such matter. It is also submitted that the patient, is in comatose state since December 2015 and the petitioner and her mother have put all the endeavours to give all best possible treatment and care with limited resources at their disposal by taking financial support from their family members and close relatives; however, considering the limited resources and ever increasing medical expenses, it is utmost necessary that the petitioner is appointed as guardian of the patient so that she can administer, manage and dispose of the assets and properties of the patient in his best interest and for his best treatment.
4.1 It is submitted that the mother of the petitioner, has filed an affidavit dated 02.12.2020, inter alia, declaring that she has no objection if the petitioner being the daughter is appointed as legal guardian of the patient i.e. Mr.Akbar Ahmed Shaikh. She has also declared that she has no objection in case where she is granted all rights to administer, manage and dispose of the assets and properties of the patient, details whereof have been indicated in the affidavit itself.
Page 5 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 4.2 It is submitted that the Chitnis to Collector, has also filed affidavit dated 29.09.2021 wherein, it has been stated that necessary inquiry and verification was done and the report of Executive Magistrate/Mamlatdar, Navsari (City) has been prepared wherein, it has been concluded that Humaira Sultan Akbar Shaikh- the wife of the patient and Samina Akbar Shaikh - the petitioner, are the legal heirs. The said report is confirmed and based on the "Varsai Pramanpatra" i.e. "Heirship Certificate" issued by the office of the Mamlatdar, Navsari (City) dated 11.09.2021. It is also submitted that so far as the examination of the patient by the team of doctors is concerned, this Court, on 25.01.2021 has issued the order constituting the team of doctors to examine the patient and to submit the report. Apropos which, a team was constituted and report, has also been prepared and submitted along with the affidavit dated 10.02.2021, inter alia, opining that the patient is not in a condition to identify any person or communicate with anybody so also he is not in a position to take care of himself and is totally dependent on others. It has also been opined that the patient is not in a position to take any type of judgment or decisions and is also not oriented to time and place. It is submitted that almost all the requirements are fulfilled so as to appoint the petitioner as guardian of the patient so that the petitioner can take care of the patient in his best interest.
4.3 Reliance is place on the judgments of the various High Courts. It is submitted that the Kerala High Court in case of Shobha Page 6 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 Gopalakrishnan & Others v. State of Kerala reported in 2019(2) KHC 488, has held and observed that considering the role of the Court, jurisdiction under Article 226 of the Constitution of India springs up, when no remedy is provided under any Statute to persons with "comatose state". It is also observed that it is something like "parens patriae" jurisdiction. The Kerala High Court has in absence of any legislation governing the patients with comatose state, issued guidelines to deal with the procedure for such appointment of guardian to a victim.
4.4 Further reliance is placed on the judgment in the case of Madhu Vijaykumar Gupta v. State of Maharashtra reported in 2019 (3) RCR (Civil) 259. Reliance is also placed on the judgment of the High Court of Allahabad in the case of Uma Mittal & Others v. Union of India reported in AIR 2020 All 202. While dealing with various legislations and judgments on the doctrine of "parens patriae" it has been held and observed that the Constitutional Courts may also act as parens patriae so as to meet the ends of justice. It has been held and observed that the Constitutional Courts in the country have exercised parens patriae jurisdiction in the matter of child custody, treating the issue of custody of a child to be of paramount concern. Similarly, the doctrine has been invoked in cases where a person who is mentally retarded, is produced before a Court in a writ of Habeas Corpus. It has also been 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. The dominant factor, Page 7 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 after all, is not enforcement of rights guaranteeing protection of life of warring parties under Article 226 of the Constitution but the protection of rights of a human being lying in a comatose state under Article 21 of the Constitution of India. The Court under Article 226 of the Constitution of India can pass orders and can give direction as are necessary for subserving the ends of justice or to protect the person who is lying in a vegetative state. The Allahabad High Court, while exercising the powers under Article 226 of the Constitution of India, has laid down guidelines as a temporary measure till the appropriate enactment is legislated. 4.5 Reliance is also placed on the judgment of the coordinate bench in the case of Kumudben Arvindbhai Vadera v. State of Gujarat reported in 2020 GLH (4) 507. It is submitted that in similar circumstances, this Court, has exercised the writ jurisdiction under Article 226 of the Constitution of India appointing the petitioner therein as a guardian / manager of the patient / person in a comatose state.
4.6 Reliance is also placed on the order of the High Court of Madras, in the case of Vijailakshmi Acharya & Others v. State of Tamil Nadu rendered in Writ Petition No.6926 of 2021 and WMP No.7486 of 2021. Reliance is also placed on the judgment in the case of Vandana Tyagi & Others v. Government of National Capital Territory of Delhi (GNCTD) of the High Court of Delhi, in Writ Petition (C) No.11003 of 2019 and CM No.45428 of 2019.
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C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 4.7 While concluding, it is submitted that in absence of any legislation dealing with the patients who are lying in comatose state, the petitioner has no other remedy but to invoke the jurisdiction under Article 226 of the Constitution of India.
5. On the other hand, Ms.Surbhi Bhati, learned Assistant Government Pleader submitted that apropos the order passed by this Court on 25.01.2021, a team of doctors was constituted to examine the patient and accordingly, team was constituted and it has submitted its report along with the affidavit dated 10.02.2021 of the Chief District Health Officer, Navsari District Panchayat, Navsari. It is submitted that the patient, was examined at his residence on 08.02.2021 and it has opined that "the patient is not in condition to identify any person, he is bed ridden, not in condition to communicate with any person. He is also not in position to take care of himself. He is totally dependent on others. He is not in position to take any type of judgment or decisions also not oriented to time & place." It is also submitted that the said report, can be considered while passing the order by this Court.
5.1 It is further submitted that apropos the order dated 03.09.2021, passed by this Court, the respondent No.4 District Collector, Navsari has examined the aspect of heirship of the patient i.e. whether the petitioner and her mother are the only legal heirs. It is also submitted that the respondent No.4, while adhering to the provisions of the Circular dated 09.09.2021, has undertaken the Page 9 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 exercise of verifying the heirs of the patient i.e. Dr.Akbar Ahmed Shaikh. Certificate has also been issued by the Office of Mamlatdar, Navsari (City) dated 11.09.2021, certifying that the petitioner i.e. Samina Akbar Shaikh and her mother i.e. Humaira Sultan Akbar Shaikh are the legal heirs of the patient i.e. Dr.Akbar Ahmed Shaikh. On the basis of the certificate dated 11.09.2021 issued by the Mamlatdar, Navsari (City), the Office of the Collector and District Magistrate has also submitted a report dated 14.09.2021, inter alia, confirming that the petitioner i.e. Samina Akbar Shaikh and Humaira Sultan Akbar Shaikh i.e. mother of the petitioner, are the legal heirs of the patient. The same is also confirmed by the affidavit dated 29.09.2021 of the Chitnis to Collector, Office of the Collector & District Magistrate, Navsari by placing on record the certificate dated 11.09.2021 so also the report dated 14.09.2021 of the Office of the Collector & District Magistrate.
6. Heard learned advocates appearing for the respective parties and perused the material available on the record.
7. Pertinently, the patient, while disembarking from the hotel, had met with an unfortunate accident and has suffered serious head injuries leaving the patient into a comatose state. Also, from the record it emerges that after the accident, the patient was treated in the Noor Hospital, Mecca for more than 50 days and thereafter, was airlifted to India for further treatment. The petitioner and her mother are putting all endeavours to see that necessary treatment is Page 10 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 provided to the patient. While doing so, the petitioner has spent around lakhs of rupees towards medical expenses for upkeep of the patient. The petitioner has been managing funds with the aid and assistance of the family members and close relatives. It is also not disputed that the petitioner was a sole bread earner and on account of sustained comatose state and continuous treatment, since last almost six years, the petitioner and her mother are running out of financial resources even to meet their basic needs.
8. Under the circumstances, the petitioner has filed the captioned writ petition under Article 226 of the Constitution of India invoking the extraordinary jurisdiction of this Court for the purpose of appointing the petitioner as guardian of the patient who is in comatose state. The petitioner has set out the details of the assets and properties in para 3.13. For the purpose of convenience, the same are set out hereinbelow:
"3.13 The details of assets and properties of the patient are as under:
i. Shop No.G/9 in A-Wing of Royal Arcade admeasuring 283.50 Sq. Ft. constructed over Survey No.117/2 at Mauje: Viravar, Taluka: Navsari, District:
Navsari vide registered sale deed dated 17.08.2012 bearing registered no.NSR/4821/2012 [Co-owners:Akbar Ahmed Shaikh and Humaira Akbar Shaikh (mother of the petitioner)] ii. Shop No.2 admeasuring 400 sq. Feet in Ornet-II, constructed on land at City Survey No.5806 of Tika No.115 (Revenue Survey No.7/14) at Mauje: Navsari, Taluka: Navsari, District: Navsari purchased vide registered sale deed dated 04.10.2011 bearing registration no.NSR/5008 of 2011 for a consideration of Rs.6,00,000/-
[Co-owners:Akbar Ahmed Shaikh, Humaira Akbar Page 11 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 Shaikh (mother of the petitioner), Samina Akbar Shaikh (petitioner herein)] iii. Flat No.C-301 admeasuring 141.26 Sq. Meter in Sayhaan residency constructed on Final Plot No.267 in T.P. Scheme No.22, Vadodara (Revenue Survey No.144 paiki 1 at Mauje: Akota, Sub- District: Vadodara - 3 (Akota), District Vadodara bearing registered sale deed dated 21.11.2013 bearing registration No.BRA-3-ATA/12470/2013 [Co-owners:Akbar Ahmed Shaikh and Samina Akbar Shaikh (petitioner herein)] iv. Equity Share Investment in Franklin India Opportunities Fund- Growth, Customer Folio No.16124896 valued at Rs.5,66,807/- as on 16.10.2020.
v. The bank accounts of patient are listed as follows:
a) Name of the Bank: Central Bank of India Account No:3419164725 IFSC Code: CBIN0282218 Name of the Account Holder:
Mr. Dr. Akbar Shaikh,
b) Name of the Bank: Central Bank of India Account No.: 1325448516 Name of the Account Holder:
Mr. Dr. Akbar Shaikh,
c) Name of the Bank: Bank of Baroda Account No.: 05870100002833 Name of the Account Holder/s:
Mr. Dr. Akbar Shaikh and Ahmediya Bhanomiya Shaikh vi. Honda Amaze Car having its registration No.GJ.21.AH.9750"
9. Moreover, the mother of the petitioner, has also filed an affidavit dated 02.12.2020, inter alia, declaring that the petitioner is her daughter and she has no objection if she is appointed as legal guardian of the patient i.e. Mr.Akbar Ahmed Shaikh. It has also been declared that she has no objection if the petitioner is granted right to administer, manage, sale or dispose of assets and properties of the patient i.e. Mr.Akbar Ahmed Shaikh. Relevant extracts of the Page 12 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 affidavit dated 02.12.2020 read thus:
"1. I say and submit that I am wife of Mr.Akbar Ahmed Shaikh and he is in a comatose state since 30.12.2015.
2. I say and submit that Samina Akbar Shaikh is my daughter. I say and submit that I have no objection in case where this Hon'ble Court appoints my daughter Ms.Samina Akbar Shaikh as legal guardian of Mr.Akbar Ahmed Shaikh.
3. I further state and submit that I have no objection in case where she is granted right to administer, manage, sale or dispose of assets and properties of the Mr.Akbar Ahmed Shaikh..."
10. Further, the team of doctors was constituted which has also given its report which has been placed on record along with the affidavit dated 10.02.2021 of the Chief District Health Officer, Navsari District Panchayat, Navsari. The conclusion whereof reads thus:
"Conclusion: Patient is not in condition to identify any person, he is bed ridden, not in condition to communicate with any person.
He is also not in position to take care of himself. He is totally dependent on others. He is not in position to take any type of judgment or decisions also not oriented to time & place."
11. From the conclusion of the report prepared by the team of doctors, it is clear that the patient is not in a condition to identify any person and is bed ridden. Neither he is in a position to communicate with any person and take care of himself nor in a position to take any type of judgment or decision.
12. Adverting to the legal aspect of the matter, pertinently, there are various legislation namely (i) The Guardian and Wards Act, 1890, (ii) The Code of Civil Procedure, 1908, (iii) The Indian Lunacy Page 13 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 Act, 1912 (repealed), (iv) The Hindu Minority and Guardianship act, 1956, (v) The Mental Health Act, 1987 (repealed), (vi) The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (repealed), (vii) The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, (viii) The Rights of Persons with Disabilities Act, 2016 and the Mental Health Care Act, 2017. The said legislations have been enacted dealing with the appointment of guardians for the respective purposes. So far as the persons in the comatose state is concerned, there is no legislative enactment providing for appointment of a guardian.
13. At this stage, therefore it would be profitable to refer to the judgment of the Kerala High Court in the case of Shobha Gopalakrishnan & Others v. State of Kerala (supra). It has been held that considering the role of the Court, jurisdiction under Article 226 of the Constitution of India springs up, when no remedy is provided under any Statute to persons with "comatose state" and it is something like "parens patriae" jurisdiction. Paragraphs 34 and 35 read thus:
"34. Considering the role of this Court, jurisdiction under Article 226 of the Constitution of India springs up, when no remedy is provided under any Statute to persons like patients in 'comatose state'. It is something like 'parens patriae' jurisdiction. A reference to the verdict in Nothman vs. Barnet London Borough Council [1978 (1)WLR 220] (at 228) is also relevant. In such cases, it is often said, Courts have to do what the Parliament would have done. A reference to the verdict in Surjit Singh Karla vs. Union of India and another [1991(2) SCC 87 explaining the principle of 'causes omissus' is also brought to the notice of this Court; to the effect that if it is an Page 14 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 accidental omission, court can supply/fill up the gap. This Court however does not find it appropriate to "re-write" the provision, as it is within the exclusive domain of the Parliament. This is more so, when the relevant statutes like Mental Health Act, 1987 and PWD Act, 1995 came to be repealed, on introducing the new legislations, such as the Mental Healthcare Act 2017 and The Rights of persons with Disabilities Act, 2016 in conformity with the mandate of U.N.Convention, 2006. This Court does not say anything whether any amendment is necessary, also in respect of the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (National Trust Act, 1999) with reference to the U.N.Convention 2006. It is for the Government to consider and take appropriate steps in this regard, as it is never for the Court to encroach into the forbidden field. This Court would only like to make it clear that, in so far as the case of a patient lying in 'comatose state' is not covered by any of the statutes, (as discussed above), for appointment of a Guardian, the petitioners are justified in approaching this court seeking to invoke the power under Article 226 of the Constitution of India. It is declared accordingly.
35. Coming to the incidental aspects; since no specific provision is available in any Statutes to deal with the procedure for such appointment of Guardian to a victim lying in 'comatose state', it is necessary to stipulate some 'Guidelines', based on the inputs gathered by this Court from different corners, as suggested by the learned counsel for the petitioners, the learned Government Pleader and also by the learned Amicus Curiae, till the field is taken over by proper legislation in this regard. This Court finds it appropriate to fix the following norms/guidelines as a temporary measure:
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 Page 15 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 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'.
vii) 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.
viii) 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.
ix) 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.
x) 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.
xi) 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.
xii) 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 Page 16 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 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 .
xiii) 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.
xiv) 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. In another judgment of the High Court of Allahabad in the case of Uma Mittal & Others v. Union of India (supra), the Court, has held that there is no legislative enactment providing for appointment of a guardian for a person lying in the comatose state. The Court, in its extraordinary jurisdiction under Article 226 of the Constitution of India, may act as parens patriae and can pass the orders by issuing necessary directions for subserving the ends of justice. Reference has been made to the judgment of the Apex Court rendered in the case of Shafin Jahan v. Asokan K. M., reported in (2018) 16 SCC 368 wherein, the Hon'ble Apex Court, has explained the jurisdiction of the Court in application of doctrine of parens patriae. The Hon'ble Apex Court in para 45 has held that the Constitutional Courts may also act as parens patriae so as to meet the ends of justice. It has also been held that said exercise of power is not without limitation and the Court cannot in every and any case invoke the doctrine of Page 17 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 parens patriae. Such doctrine has to be invoked only in exceptional cases where the parties before it are either mentally incompetent or have not come of age and it is proved to the satisfaction of the court that the said parties have either no parent/legal guardian or have an abusive or negligent parent/legal guardian. Paras 39 to 45 of the Judgment read thus:
"39. Constitutional Courts in this country exercise parens patriae jurisdiction in matters of child custody treating the welfare of the child as the paramount concern. There are situations when the Court can invoke the parens patriae principle and the same is required to be invoked only in exceptional situations. We may like to give some examples. For example, where a person is mentally ill and is produced before the court in a writ of habeas corpus, the court may invoke the aforesaid doctrine. On certain other occasions, when a girl who is not a major has eloped with a person and she is produced at the behest of habeas corpus filed by her parents and she expresses fear of life in the custody of her parents, the court may exercise the jurisdiction to send her to an appropriate home meant to give shelter to women where her interest can be best taken care of till she becomes a major.
40. In Heller v. Doe, Kennedy, J., speaking for the U.S. Supreme Court, observed:
".... 'the State has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable ...to care for themselves.'
41. The Supreme Court of Canada in E. v. Eve observed thus with regard to the doctrine of parens patriae:
The parens patriae jurisdiction for the care of the mentally incompetent is vested in the provincial superior courts. Its exercise is founded on necessity. The need to act for the protection of those who cannot care for themselves. The jurisdiction is broad. Its scope cannot be defined. It applies to many and varied situations, and a court can act not only if injury has occurred but also if it is apprehended. The jurisdiction is carefully guarded and the courts will not assume that it has been removed by legislation.Page 18 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022
C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 While the scope of the parens partiae jurisdiction is unlimited, the jurisdiction must nonetheless be exercised in accordance with its underlying principle. The discretion given under this jurisdiction is to be exercised for the benefit of the person in need of protection and not for the benefit of others. It must at all times be exercised with great caution, a caution that must increase with the seriousness of the matter. This is particularly so in cases where a court might be tempted to act because failure to act would risk imposing an obviously heavy burden on another person."
42. The High Court of Australia in Secretary, Department of Health and Community Service v. J.W.B. and S.M.B., speaking through Mason, C.J., Dawson, Toohey and Gaudron JJ., has made the following observations with regard to the doctrine:
"71. No doubt the jurisdiction over infants is for the most part supervisory in the sense that the courts are supervising the exercise of care and control of infants by parents and guardians. However, to say this is not to assert that the jurisdiction is essentially supervisory or that the courts are merely supervising or reviewing parental or guardian care and control. As already explained, the Parens Patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind."
43. Deane J. in the same case stated the following:
"4... Indeed, in a modern context, it is preferable to refer to the traditional parens patriae jurisdiction as "the welfare jurisdiction" and to the "first and paramount consideration" which underlies its exercise as "the welfare principle"."
44. Recently, the Supreme Court of New South Wales, in the case of AC v. OC, has observed:
"36. That jurisdiction, protective of those who are not able to take care of themselves, embraces (via different historical routes) minors, the mentally ill and those who, though not mentally ill, are unable to manage their own affairs: Eve, SCR at pp. 407-17; Court of Australia in Deptt. Of Health and Community Servies Secretary, Department of Health and Community Services v. JWB and SMB, CLR at p. 258; PB v. BB, Nswsc, paras 7, 8, 40, 42, 57, 58 and 64, 65.
37. A key concept in the exercise of that Page 19 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 jurisdiction is that it must be exercised, both in what is done and what is left undone, for the benefit, and in the best interest, of the person (such as a minor) in need of protection."
45. Thus, the Constitutional Courts may also act as parens patriae so as to meet the ends of justice. But the said exercise of power is not without limitation. The courts cannot in every and any case invoke the parens patriae doctrine.
The said doctrine has to be invoked only in exceptional cases where the parties before it are either mentally incompetent or have not come of age and it is proved to the satisfaction of the court that the said parties have either no parent/legal guardian or have an abusive or negligent parent/legal guardian."
15. Yet in another judgment of the High Court of Kerala it has been held 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. Paragraphs 25 and 26 are reproduced hereunder for ready reference:
"25. Thus, a perusal of the aforesaid decisions clearly indicates that the Constitutional Courts may also act as parens patriae so as to meet the ends of justice. The Constitutional Courts in the country have exercised parens patriae jurisdiction in the matter of child custody, treating the issue of custody of a child to be of paramount concern. Similarly, the doctrine has been invoked in cases where a person who is mentally retarded, is produced before a Court in a writ of Habeas Corpus. These are the rare situations, when the Court can invoke the aforesaid doctrine.
26. In our opinion, in the present case this 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 under Article 226 can pass orders and give direction as are necessary for subserving the ends of justice or to protect the person who is lying in a vegetative state. Under the circumstances, this Court, under Article 226 of the Constitutions of India, is the ultimate guardian of a person who is lying in a Page 20 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 comatose/vegetative state and may provide adequate relief of appointment of a Guardian."
16. Similarly in the case of Kumudben Arvindbhai Vadera v. State of Gujarat (supra) this Court, while accepting the plea of the petitioner therein, appointed her as a guardian by incorporating various conditions. So is the position in another judgment in the case of Vijailakshmi Acharya & Others v. State of Tamil Nadu (supra), wherein, High Court of Madras, while adopting the doctrine of parens patriae, appointed the wife as a guardian of the patient, in a comatose state.
17. Therefore, the common thread running through all the judgments is that the Constitutional Courts may also act as parens patriae so as to meet the ends of justice. Therefore, while respectfully agreeing with the law enunciated by the various High Courts so also the nature of the doctrine of parens patriae this Court, under Article 226 of the Constitution of India, proposes to pass the present order, giving necessary directions extending necessary protection to the patient for subserving the ends of justice.
18. As discussed hereinabove, there is no legislation governing the appointment of the guardian of a person in a comatose state and therefore, this Court, has been called upon to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India and act as a parens patriae. As has been noted hereinabove, Page 21 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 the petitioner, is seeking permission for being appointed as a guardian and to deal with the assets and properties of the patient as indicated in para 3.13. The legal heirs of the patient are the petitioner herself and her mother, who has also filed the affidavit indicating that she has no objection if the petitioner is appointed as guardian of the patient and also to deal with the assets and properties indicated in para 3.13. So far as the status of the patient is concerned, the team of doctors was constituted and has also given its report along with the affidavit indicating that the patient is not in a condition to identify any person, he is bed ridden and unable to communicate with any person. It is also not in dispute that the patient is not in a position to take care of himself and is totally dependent on others. Also, he is unable to take any type of judgment or decision and also not oriented to time and place.
19. Under the circumstances, this Court, is of the opinion that the present writ petition, deserves to be entertained declaring the petitioner as a guardian of the patient i.e. Dr.Akbar Ahmed Shaikh, who is in comatose state since 30.12.2015. Therefore, the petitioner is ordered to be declared as a guardian of the patient i.e. Dr.Akbar Ahmed Shaikh and manager of the immovable and movable properties belonging to the patient i.e. Dr.Akbar Ahmed Shaikh as listed hereinbelow:
"i. Shop No.G/9 in A-Wing of Royal Arcade admeasuring 283.50 Sq. Ft. constructed over Survey No.117/2 at Mauje:
Viravar, Taluka: Navsari, District: Navsari vide registered sale deed dated 17.08.2012 bearing registered no.NSR/4821/2012 Page 22 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 ii. Shop No.2 admeasuring 400 sq. Feet in Ornet-II, constructed on land at City Survey No.5806 of Tika No.115 (Revenue Survey No.7/14) at Mauje: Navsari, Taluka: Navsari, District: Navsari purchased vide registered sale deed dated 04.10.2011 bearing registration no.NSR/5008 of 2011 for a consideration of Rs.6,00,000/-
iii. Flat No.C-301 admeasuring 141.26 Sq. Meter in Sayhaan residency constructed on Final Plot No.267 in T.P. Scheme No.22, Vadodara (Revenue Survey No.144 paiki 1 at Mauje: Akota, Sub- District: Vadodara - 3 (Akota), District Vadodara bearing registered sale deed dated 21.11.2013 bearing registration No.BRA-3-ATA/12470/2013 iv. Equity Share Investment in Franklin India Opportunities Fund-Growth, Customer Folio No.16124896 valued at Rs.5,66,807/- as on 16.10.2020.
v. Honda Amaze Car having its registration
No.GJ.21.AH.9750"
20. The petitioner having been appointed as guardian and manager, is permitted and authorized to operate the following bank accounts of the patient:
"i) Name of the Bank: Central Bank of India
Account No:3419164725
IFSC Code: CBIN0282218
Name of the Account Holder:
Mr. Dr. Akbar Shaikh,
ii) Name of the Bank: Central Bank of India
Account No.: 1325448516
Name of the Account Holder:
Mr. Dr. Akbar Shaikh,
iii) Name of the Bank: Bank of Baroda
Account No.: 05870100002833
Name of the Account Holder/s:
Mr. Dr. Akbar Shaikh and Ahmediya Bhanomiya Shaikh"
21. As the petitioner is appointed as a guardian, it will be open to the petitioner to make an application for renewal of the passport No.J7240677 by filing an appropriate application and the respondent Page 23 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 No.3 i.e. Regional Passport Officer, shall decide the application for renewal of passport, as and when submitted by the petitioner in terms of the present judgment.
22. With a view to seeing that the aforesaid order is adhered to and is observed in its true letter and spirit, the following conditions are necessary with a view to seeing that there is no breach of any of the conditions:
i. The petitioner - guardian, shall act always in the best interest of the patient suffering from "comatose state" and shall be responsible for medical care and treatment.
ii. The petitioner - guardian shall file, every three months, a report with the Registrar General, High Court of Gujarat adverting to the transactions undertaken by the petitioner - guardian in respect of the assets and liabilities. Besides, the report shall also indicate the funds, if any, received by the guardian and their utilization for the purpose of maintaining the patient.
iii. The Registrar General, High Court of Gujarat, shall cause a separate register to be maintained which shall set out, inter alia, the details of the proceedings, the details of the person appointed as a guardian and orders, if any, passed after the appointment of the guardian.
Measures shall also be taken by the Registrar General, Page 24 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 High Court of Gujarat to preserve the reports filed by the petitioner - guardian from time to time.
iv. It should be ensured that there is no misuse of the power or misappropriation of the funds and if, there is, any, or there is no requisite care and protection or support with regard to the treatment being extended to the patient, it will be open to place the matter for further consideration of this Court and to reopen and revoke the power, to take appropriate action against the petitioner -
guardian. It will be also open for the Court to appoint another person/public authority/Social Welfare Officer as the guardian.
v. It shall be the duty of the petitioner - guardian to meet the obligations/duties similar to those as described under Section 15 and to maintain and submit the accounts similar to those contained in Section 16 of the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities" Act, 1999.
vi. The petitioner - guardian, shall intimate his appointments to the public official/Social Welfare Officer or officer of the equivalent rank designated by the State Government. The petitioner - guardian as well as the Registrar General, High Court of Gujarat, will cause a Page 25 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 copy of this order of guardianship being served upon such officer. Such officer, shall visit the person lying in comatose state at least once in a week and will generate report of his visit. If it is found that the petitioner -
guardian is not acting in the best interest of the patient lying in comatose state, he will be at liberty to file appropriate application before this Court at the earliest, seeking appropriate directions.
vii. The transactions in respect of the property of the patient, by the petitioner - guardian, shall be strictly in accordance with the provisions of law. If the petitioner -
guardian is found to be abusing the power or neglects or acts contrary to the best interest of the patient lying in comatose state, it will be open to any relative or next friend to apply to this Court for removal of such guardian.
viii. In case a relative or a next friend of the patient lying in a comatose state finds that the guardian is not acting in the best interest of the patient, such person will also have the locus to approach this Court for issuance of appropriate directions and/or for removal of the guardian.
ix. The petitioner - guardian shall seek and obtain specific permission from this Court, if he/she intends to transfer the patient lying in a comatose state from the Page 26 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022 C/SCA/16492/2020 JUDGMENT DATED: 20/10/2021 jurisdiction of this Court to another State and/or Country, whether it be for availing better treatment or otherwise.
23. Needless to say that this order shall remain operative until the patient i.e. Dr.Akbar Ahmed Shaikh, remains in comatose state.
24. With the aforesaid directions, the petition is partly allowed.
25. Rule is made absolute to the aforesaid extent. No order as to costs.
26. Let the copy of this order be circulated to the Registrar General, High Court of Gujarat for information and necessary compliance.
Sd/-
(SANGEETA K. VISHEN, J) RAVI P. PATEL Page 27 of 27 Downloaded on : Mon Jan 17 01:13:57 IST 2022