Gujarat High Court
Dipali Kamleshbhai Sheth W/O Kamlesh ... vs State Of Gujarat on 10 March, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/19518/2021 ORDER DATED: 10/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19518 of 2021
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DIPALI KAMLESHBHAI SHETH W/O KAMLESH ARVINDBHAI
SHETH
Versus
STATE OF GUJARAT
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Appearance:
MS AMRITA AJMERA(5204) for the Petitioner(s) No. 1
MS. DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,4
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 10/03/2022
ORAL ORDER
1. By way of the present writ-application under Article 226 of the Constitution of India, the writ-applicant prayed for the following reliefs:
"a. Your Lordships be pleased to allow this petition.
b. Your Lordships may be pleased to hold and declare that the applicant is the guardian of Kamleshbhai Arvindbhai Sheth who is suffering from Comatose condition since 11.11.2018.
c. Your Lordships may be pleased to hold and declare that the applicant is appointed as guardian of Kamleshbhai Sheth for managing, dealing and selling movable as well as immovable properties of Kamleshbhai Sheth.Page 1 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022
C/SCA/19518/2021 ORDER DATED: 10/03/2022 d. Your Lordships may be pleased to pass any other and further orders as may be deemed fit and proper in the facts and circumstances of the present case."
2. The brief facts of the present writ-application are that, on 11.11.2018 husband of the writ-applicant i.e. Kamleshbhai Sheth was travelling in car, when a ST Bus rammed into the car due to which the driver as well as one of the passenger in the car died on the spot, while Kamleshbhai received serious injuries in the said accident. The husband of the writ-applicant was given preliminary treatment at Surendranagar, after which he was shifted to Zydus Hospital, Ahmedabad, wherein, he was hospitalized from 11.11.2018 till 17.01.2019 during which he was unconscious and was in ICU and on Ventilator support and was even operated for injury on his right leg hip joint fracture and dislocation and due to head injury, he did not gain consciousness and had no control over any organs of the body. Owing to which food was provided through Tracheotomy in neck while catheter for urinating and as there was no sign of further improvement, he was discharged from Zydus Hospital, Ahmedabad on 17.01.2019 Page 2 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022 C/SCA/19518/2021 ORDER DATED: 10/03/2022 with a detailed followed-up advice.
3. It is further stated that the husband of the writ-
applicant continues to remain in a vegetative state from 17.01.2019 till date. The discharge summary is duly produced at Annexure-A which is of Zydus Hospital, Ahmedabad. The writ-applicant is also required to take care of their three daughters on verge of attaining majority, viz. Unnati aged 20 years, Vipiksha aged 17 years and Khushi aged 11 years alongwith mounting medical bills and other household expenses and the applicant having hardly any income of her own and in a state of helplessness. Accordingly, the writ-applicant is constrained to approach this Court with the above-referred reliefs.
4. Heard Ms. Amrita Ajmera, learned counsel appearing for the writ-applicant and Ms. Dharitri Pancholi, learned Assistant Government Pleader appearing for the respondent-State.
5. Considering the submissions made by Ms. Ajmera, Page 3 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022 C/SCA/19518/2021 ORDER DATED: 10/03/2022 learned counsel appearing for the writ-applicant, this Court issued Notice on 04.01.2022 made it returnable on 11.01.2022.
Further orders came to be passed on 22.02.2022, which read thus:
"Heard Ms. Amrita Ajmera, the learned counsel appearing for the writ-applicant.
The case of the writ-applicant is that her husband, viz. Shri Kamlesh Arvindbhai Sheth, is in comatose stage since 11.11.2018.
The prayer in the writ-application is that, the writ- applicant be appointed as 'Guardian' of movable and immovable properties belonging to her husband, viz. Shri Kamlesh Arvindbhai Sheth. Medical reports have been placed on record of the Zydus Hospital, Ahmedabad, certifying that the writ-applicant's husband is in comatose stage.
In order to ascertain the medical condition of the writ-applicant's husband-Shri Kamlesh Arvindbhai Sheth, Dr. Harish Vesetian, Civil Surgeon & Chief District Medical Officer, General Hospital, Surendranagar is requested to constitute a team of doctors under his guidance as suitable to him. The medical examination of Shri Kamlesh Arvindbhai Sheth be done and the report be prepared. The said report be placed on record of the writ-application on or before 10.03.2022.
Copy of this order be given to Ms. Dharitri Pancholi, the learned Assistant Government Pleader for onward communication.
Stand over to 10.03.2022.
Direct service is permitted."Page 4 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022
C/SCA/19518/2021 ORDER DATED: 10/03/2022
6. Ms. Pancholi, learned Assistant Government Pleader appearing for the respondent-State authorities produced on record the report duly signed by the Chief District Medical Officer-cum-Civil Surgeon, Government Medical Hospital, Surendranagar on 02.03.2022. The said report dated 02.03.2022 read thus:
Camp: House of Shri Kamleshkumar A. Sheth 31/ Anupam Society, near Meghani Baug, 80-feet road, Surendranagar.
Date : 02/03/2022+ Rojkam done by the medical team at the house of Shri Kamleskumar A. Sheth regarding his illness.
Pursuant to the Hon'ble Gujarat High Court's letter No.R/SCA/19518/2021, home visit of the patient Shri Kamleshkumar A. Sheth, residing at the aforesaid address was done by Physician, Class-1, Full time Surgeon, Class-1 and Residential Medical Officer, Class-1 of the General Hospital, Surendranagar. The opinion of the Doctors in regard with the same is as under.
(1) The condition of the patient Shri Kamleshkumar A. Sheth, age 43 years, residing at the aforesaid address is serious. He does not have ability to make movement and he does not have ability to put his signature in any type of document by himself. (2) Both of his hands and legs are totally paralyzed and he does not have ability to understand any type of instructions or to implement the same. Moreover, he does not have the ability to express his thoughts.
We have also taken into consideration, the disability certificate dated 11/02/2022 issued by Dr. Shailendra J. Solanki, Associate Proffessor, Department of Neurosurgery, B.J. Medical Collage, Civil Hospital, Ahmedabad.
Sd/-Illegible Sd/-Illegible Sd/- Illegible Physician Class (I) Full time Surgeon Resident Medical Mahatma Gandhi Class-1 Officer (CL-I) Smarak Mahatma Gandhi District Hospital Page 5 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022 C/SCA/19518/2021 ORDER DATED: 10/03/2022 General Hospital, Smarak Surendranagar Surendranagar General Hospital, (Dr. Chaitanyakumar (Dr.Jaydeep M. Gosai) Surendranagar M. Parmar) (Dr. Manish B. Mudgal) Sd/-Illegible Chief District Medical Officer- cum- Civil Surgeon.
Govt. General Hospital, Surendranagar (Dr. Harish M. Vesetiyan)
7. This Court perused the said report which states that the husband of the writ-applicant who is aged 43 years is not in a position to make movement and he does not have ability to put his signature in any type of document by himself. Both of his hands and legs are totally paralyzed.
8. Thus, having heard the submissions made by the writ-applicant and report placed on record by the learned Assistant Government Pleader, this Court is of the view that reliefs as sought for by the writ-applicant are reasonable and may be granted considering the peculiar facts and circumstances of the case. However, to ensure that order of this Court is followed in letter and spirit and there is no breach thereof, it is also essential that there should be some Page 6 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022 C/SCA/19518/2021 ORDER DATED: 10/03/2022 kind of monitoring of the functioning of the writ-applicant as guardian albeit for a limited extent to ensure that guardianship is being used for the benefit of the person who is in a comatose state. Such monitoring may be carried out through the Member Secretary, Gujarat State Legal Services Authority constituted under the Legal Services Authorities Act, may guide her for carrying out the functioning as a guardian for smooth actions as such.
9. Therefore, this Court is of the view that this is a fit case to exercise extraordinary jurisdiction under Article 226 of the Constitution of India, appointing writ-applicant as Guardian and/or Manager of Shri Kamleshbhai Arvindbhai Sheth, who is in comatose state, for the below-mentioned properties on following terms and conditions:
LIST OF FINANCIAL INVESTMENTS OF KAMLESHBHAI SHETH "(1). Axis Bank Account no. 915040022690631 savings account (HUF FD) M/s. Kamlesh Arvindbhai Sheth (HUF). (2) Axis Bank Account no. 326010100043759 savings account Kamleshbhai Arvindbhai Sheth (HUF). (3). HDFC Bank Account no. 50200028697940 current account Page 7 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022 C/SCA/19518/2021 ORDER DATED: 10/03/2022 M/s. Kamlesh Arvindbhai Sheth (HUF). (4). Rajkot Nagrik Sahkari Bank--1 Share Certificate Sr. no. 00006634 Kamleshbhai A Sheth.
(5). Post Savings Account no. 1182594899 Kamleshbhai A sheth.
(6). Bank of Baroda Account no. 03710100006790 savings account Kamleshbhai Sheth.
(7). Axis Bank Savings Account no. 326010100022093 savings account Kamleshbhai A Sheth.
(8). HDFC Bank Current Account no. 50200027161572 Kamleshbhai A Sheth.
(9). State Bank of India Savings Account no. 56101194790 ( Joint Holder) Kamleshbhai Sheth. (10). Rajkot Nagrik Sahakari Bank Ltd. Account No. 50003800001008 ( Joint Holder).
(11). Rajkot Nagrik Sahakari Bank Ltd. Account No. 50003100002623 (Joint Holder).
(12). Rajkot Nagrik Sahakari Bank Ltd. Account No. 50003100003270 (Joint Holder).
(13). Bank of Baroda Account No. 25140100014299 (Joint Holder).
(14). Bank of Baroda Account No. 25140100014526 (Joint Holder) where Kamleshbhai Sheth is Guardian & 2 account holder of Minor Khushi.
(15). Shaurashtra Gramin Bank Account no. 780003027773 (joint Holder).
(16). Axis Bank Ltd. Account No. 326010100003988 (Joint Holder).
(17). Post PPF Account no. 1182980876 Kamleshbhai A Sheth. (18). Post Gold Bond E-Certificate no. SGB000001022652093- 1022652102.
(19).Bike-Hero Honda Splendor No. GJ 13 SS 3128. (20). Bike-Hero Honda Splendor no. GJ 13 S 4725.Page 8 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022
C/SCA/19518/2021 ORDER DATED: 10/03/2022 (21). Locker- Saurashtra Gramin Bank (Joint Holder) (22). LIC Policy (23). Property -- Residential House of Arvindbhai Kantilal Sheth purchased on 09.11.1983 being ward no 2 admeasuring 90 square meters located in wadhwan, Surendranagar. Wherein Kamleshbhai would have 25% Share.
His Heirs being 1. Pushpaben Arvindbhai Sheth
2. Kamleshbhai Arvindbhia Sheth (25% Share)
3. Ketanbhai Arvindbhai Sheth
4. Dharmeshbhai Arvindbhai Sheth (24). Shop No. 30 Medicare Complex, Surenranagar being survey ward no. 2 city survey no. 5562 and 5565 purchased on 28.03.2017. wherein Kamleshbhai Sheth has 50% share. (25). Shop no. 26 Medicare Complex, Surendranagar being survey ward no. 2 City survey no. 5562 and 5565 purchased on 20.12.2011. wherein Kamleshbhai Sheth has 50% Share.
(26). Residential House situated at Surendranagar in ward no 2 city survey no 4676 admeasuring 47.95 sq. mts. And purchased on 5.01.2007. Said property is self-acquired and solely owned by Kamleshbhai Sheth.
(27). Flat in Ghanshyam Residency block no. 0/503 for Residential purpose being sim survey no. 292/2 being 71.07 sq. mts situated in Dholka Taluka, Ahmedabad. Said property is self-acquired and solely owned by Kamleshbhai Sheth."
"(a) The writ-applicant shall file every three (3) months a report with the Registrar General of this Court. The report shall advert to the transactions undertaken by the Guardian in respect of the assets Page 9 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022 C/SCA/19518/2021 ORDER DATED: 10/03/2022 and liabilities of the person lying in comatose state.
Besides this, the report shall also indicate the funds, if any, received by the writ-applicant and their utilization for the purposes of maintaining the person lying in comatose state.
(b) The Registrar General of this Court will cause a separate register to be maintained which will set out inter alia the details of the proceedings, the particulars of the person appointed as a guardian and orders, if any, passed after the appointment of the guardian. Measures will also be taken by the Registrar General to preserve the reports filed by the guardian from time to time.
(c) If there is any misuse of power or misappropriation of funds or no extension of requisite care and protection or support with regard to the treatment and other requirements of the person lying in comatose state is brought to the notice of Registrar General, 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 writ-applicant 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.
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(d) The transactions in respect of the property of the person lying in 'comatose state', by the writ-applicant, 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.
(e) In case a relative or a next friend of the person lying in comatose state finds that the guardian is not acting in the best interest of the person lying in comatose state, such person will also have the locus to approach the Court for issuance of appropriate directions and/or for removal of the guardian.
(f) 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.
(g) The writ-applicant shall be liable, if in future any dispute with regard to the movable or immovable properties of the patient / victim, Shri Kamleshbhai Page 11 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022 C/SCA/19518/2021 ORDER DATED: 10/03/2022 Arvindbhai Sheth, arises to make good the loss or damage caused to anyone.
(h) The writ-applicant to file a detailed report to this Court about the transactions of sale and/or transfer of movable and immovable properties of her husband Shri Kamleshbhai Arvindbhai Sheth that may be effected by her alongwith true copies of necessary documents of transfer or sale. Such report shall be filed with the Registrar General of this Court within a period of one month from the date of effecting the transfer or sale. The writ-applicant shall ensure that entire amount realized by sale / transfer etc. of movable and immovable properties shall be used towards to expenses incurred for the treatment of patient Shri Kamleshbhai Arvindbhai Sheth. The account for money realized and spent as aforesaid shall be reported to the Registrar General within a period of one month thereof. The Registrar General will examine the report or reports and will seek appropriate directions from this Court, if necessary.
(i) Needless to add that while selling the immovable properties or movable properties of her husband Shri Kamleshbhai Arvindbhai Sheth, the writ-applicant will ensure that best possible price or consideration is Page 12 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022 C/SCA/19518/2021 ORDER DATED: 10/03/2022 fetched.
(j) In view of declaration granted in terms of prayer clauses (a) and (b), it is made clear that the writ- applicant will be entitled to operate all Bank Accounts including PPF Accounts and Demat Accounts, if any held in the name of Shri Kamleshbhai Arvindbhai Sheth, in her capacity as the Guardian of Shri Kamleshbhai Arvindbhai Sheth, and Manager of his assets.
(k) This order will remain good until patient Shri Kamleshbhai Arvindbhai Sheth remains in comatose state.
In view of the above, the present petition is allowed to the aforesaid extent. Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 13 of 13 Downloaded on : Sat Dec 24 12:35:00 IST 2022