Delhi High Court
Pratibha Pande And Anr vs Union Of India And Ors on 24 February, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th February, 2016
+ W.P.(C) NO. 10198/2015, CMs No.25224/2015 (for stay) &
27297/2015 (for appointment of P-2 as Guardian ad litem)
PRATIBHA PANDE AND ANR ..... Petitioners
Through: Mr. Prosenjeet Banerjee, Mr. Princy
Ponnan & Ms. Taran Gupta, Advs.
Versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms. Jyoti Dutt Sharma, Adv. for R-1&3.
Mr. Siddhartha Shankar Ray, Adv. for
R-4,7&8.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition impugns the Minutes of the Meeting held on 24 th
September, 2015 of the respondent No.3 the Local Level Committee (LLC),
New Delhi (South District) constituted under Section 13 of the National Trust
for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation
and Multiple Disabilities Act, 1999 (National Trust Act) rejecting the
application of the petitioner no.2 Ms. Madhvi Pande for appointment as
guardian of her mother i.e. the petitioner no.1 herein on the ground that the
respondent No.4 Govind Ballabh Pant Hospital, New Delhi had clarified that
the petitioner No.1 cannot be categorized as a person suffering from multiple
W.P.(C) No.10198/2015 Page 1 of 17
disabilities under the Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 (Disabilities Act) read with
National Trust Act.
2. It is the case of the petitioners:
(i) that the petitioners no.1 aged about 60 years, was married to one
Mr. Jyoti Swarup Pande and from which marriage has two
children i.e. a daughter Ms. Madhvi Pande (petitioner no.2) and a
son viz. Mr. Vinayak Pande;
(ii) that the petitioner no.1 is otherwise estranged from her husband
since 1987 and been living separately;
(iii) that the petitioner no.1 till March, 2014 was carrying on business
as a Director of Allwyn Cooper Pvt. Ltd.; she was in March 2014
diagnosed with suffering from a rare and debilitating
neurodegenerative disease and within four weeks lost her ability
to perform activities of daily living and suffered from progressive
dementia and in May, 2014 went into a coma;
(iv) that since the disease from which the petitioner no.1 was suffering
could not be confirmed in India, the petitioner no.1 was flown to
Philadelphia, United States of America (USA) where she was
W.P.(C) No.10198/2015 Page 2 of 17
found to be suffering from sporadic Creutzfeld-Jacob Disease
(CJD) and was on 23rd May, 2014 brought back to India and
though was initially admitted to Fortis Hospital but upon the
doctors advising that till her eventual demise, she would remain in
comatose condition only, was brought home i.e. D-353, Second
Floor, Defence Colony, New Delhi;
(v) that the petitioner since May, 2014 has been in a comatose
persistent vegetative state;
(vi) that the petitioner no.1 has Savings Bank Account no.3066324734
with the respondent no.5 Central Bank of India (CBI), Ashoka
Hotel branch, New Delhi having a sum of Rs.4,13,70,925/- as on
5th October, 2015 and Savings Bank Account No.1021771857
with the respondent.6 Bank of India (BoI), Khan Market branch,
New Delhi having a sum of Rs.3,27,581/- as on 5th October, 2015;
however the petitioner no.1 is the sole signatory of the said
accounts and being in a comatose situation is unable to draw any
monies therefrom;
W.P.(C) No.10198/2015 Page 3 of 17
(vii) that the petitioner no.1 is also the owner of property no.G-3,
Dhawandeep Building, 6, Jantar Mantar Lane, New Delhi fetching
a rent of Rs.1,32,000/- per month;
(viii) that the expenses of the treatment and nursing care of the
petitioner no.1 till now have been met by taking loan of
Rs.60,04,473/- (USD 92,671 converted into rupees at Rs.64.79p to
a dollar) from Dr. Pragati Shukla, sister of the petitioner no.1
living in USA and from M/s Allwyn Cooper Pvt. Ltd. in which the
petitioner no.1 is a Director and partly from the rent aforesaid
earned from the properties of the petitioner no.1 and cheques
whereof are being deposited in the bank account in the joint
names of the two petitioners and money wherefrom is being
drawn by the petitioner no.2;
(ix) that expenses continue to be incurred in the day-to-day treatment
and nursing care of the petitioner no.1 of much more than the rent
being received and the petitioners are also unable to repay the
loans without drawing the monies from the bank accounts
aforesaid of the petitioner no.1 owing to the petitioner no.1 being
not in a position to operate the same;
W.P.(C) No.10198/2015 Page 4 of 17
(x) that the Reserve Bank of India, in order to help sick and disabled
people to operate their accounts, has issued Circulars
No.RBI/2007-2008/189;DBOD.No.Leg.BC.51/09.07.005/2007-08
dated 19th November, 2007 and no.RBI/2008-09/58:UBD.
BPD(PCB)MC.No:13/13.01.000/2008-09 dated 1st July, 2008
advising the banks to accept Guardianship Certificates issued by
the respondent no.2 National Trust for the Welfare of Persons
with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities (National Trust) established under the National Trust
Act;
(xi) that though the petitioner no.1 approached the respondent no.2
National Trust as far back as in April, 2015 but has been made to
run from pillar to post and without any result and without any
regard to the urgency;
(xii) the petitioner no.2 was asked to first get a Disability Certificate
from the respondent No.4 Hospital before her application could be
considered and ultimately Disability Certificate dated 6 th August,
2015 was issued to the effect that the petitioner no.1 was bed
bound, in a comatose situation having 100% motor handicap;
W.P.(C) No.10198/2015 Page 5 of 17
(xiii) the petitioner No.2 submitted the aforesaid Certificate with the
respondent no.3 Local Level Committee constituted under the
National Trust Act but the Local Level Committee sought certain
clarifications from the respondent no.4 G.B.Pant Hospital with
respect to the Disability Certificate issued; and,
(xiv) the respondent no.4 G.B.Pant Hospital in the said clarification
declared that the petitioner no.1 did not come within the definition
of a person with multiple disability within the meaning of
National Trust Act and on the basis thereof the respondent No.3
Local Level Committee has rejected the application of petitioner
No.2 for appointment as guardian of petitioner No.1.
3. On the statement of the counsel for the petitioners that no appeal has
been provided against such a decision and that the High Court of Madras in G.
Nityanandam Vs. Tmt. D. Saritha MANU/TN/0669/2013 held that in such a
situation the provisions of the Guardian and Wards Act, 1890 also cannot be
attracted, notice of the petition was issued.
4. Vide order dated 18th November, 2015 the respondent no.4 Hospital was
directed to file an affidavit explaining the position and in pursuance whereto an
affidavit was filed giving reasons for opining that the petitioner no.1 cannot be
W.P.(C) No.10198/2015 Page 6 of 17
said to be suffering from multiple disability within the meaning of National
Trust Act read with Disabilities Act.
5. On perusing the said affidavit, in the order dated 8th December, 2015 it
was observed that even if the petitioner no.1 was held to be not a person
suffering from multiple disability within the meaning of National Trust Act
read with Disabilities Act, if this Court were to be satisfied that for the welfare
and benefit of the petitioner no.1 there is urgent need for appointment of
guardian of the petitioner no.1 and if finds the petitioner no.2 to be a suitable
and most appropriate person therefor, would otherwise also be entitled and
authorized to appoint petitioner no.2 as guardian of the petitioner no.1. The
counsels for the respondents also, de hors the provisions of the National Trust
Act and Disabilities Act agreed that in the exercise of powers under Article 226
of Constitution of India, the petitioner no.2 could be appointed as the guardian
of the petitioner no.1 if found to be competent, especially as the respondent
no.4 Hospital had not disputed the factum of the petitioner no.1 being in a
comatose position.
6. On enquiry it was informed (and recorded in the order dated 8th
December, 2015) that the petitioner no.1 is 60 years of age and the petitioner
no.2 is 36 years of age and that the estranged husband of the petitioner no.1 as
W.P.(C) No.10198/2015 Page 7 of 17
well as the son of the petitioner no.1 have also furnished their affidavits by way
of 'No Objection' to the appointment of the petitioner no.2 as the guardian of
the petitioner no.1
7. Being of the view that in a petition for appointment of a guardian, the
State would be a necessary party, vide order dated 8th December, 2015
Government of National Capital Territory of Delhi (GNCTD) was asked to
make an enquiry, verify the facts pleaded in the petition by making enquiries
from local Police Station, neighbours where the petitioners reside, from the
estranged husband and from the son and other close relatives of the petitioner
no.1 as well as relating to the assets of the petitioner no.1. The Sub Divisional
Magistrate (SDM) who was informed to be also a member of the Local Level
Committee was directed to conduct the enquiry. The petitioner no.2 was also
directed to place before this Court a complete list of assets of the petitioner
no.1 with their present status and the manner in which the petitioner no.2 as
guardian of the petitioner no.1 intended to deal therewith.
8. In compliance with the above, affidavits and report of the SDM have
been filed. During the hearing on 21st December, 2015, further enquiries were
made from Mr. Ravinder Kumar, SDM present in Court. The SDM did not find
W.P.(C) No.10198/2015 Page 8 of 17
anything negative for appointment of the petitioner no.2 as the guardian of the
person and property of her mother i.e. the petitioner no.1.
9. After hearing the counsels, judgment was reserved on 21 st December,
2015 but as an ad-interim measure, Rs.3,50,000/- in the months of December,
2015 and January, 2016 were ordered to be released from the Bank Account
aforesaid of petitioner No.1 with respondent No.5 CBI in favour of the
petitioner no.2 to enable the petitioner No.2 to meet the expenses of treatment
of the petitioner no.1.
10. Owing to the turn which the matter has taken, need to go into the
question whether the actions of the respondents no.2&3 National Trust and
Local Level Committee refusing to appoint the petitioner no.2 as guardian of
petitioner No.1 does not arise. Suffice it is to state that Supreme Court recently
in ABC Vs. The State (NCT of Delhi) (2005) 10 SCC 1 has underscored that
the High Court in seisin of the appeal (in that case) against the order of the
Guardianship Court ought not to have lost sight of the fact that it had been
called upon to discharge its parens patriae jurisdiction and that upon a
guardianship petition being laid before the Court the concerned child ceases to
be in exclusive custody of parents and that thereafter the child continues in
curial curatorship. It was further observed that the Court in that case had
W.P.(C) No.10198/2015 Page 9 of 17
derelicted in its duty in inspite of receiving knowledge of the situation that
vitally affected the future and welfare of the child, without considering all the
problems, complexities and complications brought within its portal, having
refused to exercise jurisdiction. In my view, what has been held / observed
with respect to a child equally applies to a 60 years old person in an admittedly
comatose condition.
11. The Division Bench of this Court as far back as in Nandita Virmani Vs.
Raman Virmani MANU/DE/0050/1982 also held that existence of a remedy
under the Guardians and Wards Act is not a bar to entertaining a petition under
Article 226 and to secure the custody of a child because in the petition under
Article 226 the dominant factor is not enforcement of rights of warring parties
but protection of rights of a child as a human being under Article 21 of the
Constitution of India which guarantees protection of life. Similarly, this Court
in Pratidhi Vs. NCT of Delhi MANU/DE/1286/2000 held that even if the
order of the Juvenile Welfare Board could not be sustained under provisions of
Juvenile Justice Act, 1986, the Court under Article 226 can pass orders and
give directions as are necessary for subserving the ends of justice or to protect
minor's person or property. The High Court of Kerala also in Narayanankutty
Menon Vs. State of Kerala MANU/KE/0570/2008 held that the High Court
W.P.(C) No.10198/2015 Page 10 of 17
exercising power under Article 226 is the ultimate guardian of the minor and
disabled persons who are non sui juris; accordingly directions with respect to
properties of a mentally retarded person were issued.
12. I should of course not be construed as opening the doors of this Court as
an alternate to the Special Courts / Fora created under different laws and which
should ordinarily be approached. However, in the peculiar facts, I choose to
exercise the jurisdiction vested in this Court.
13. The petitioner no.2, in the affidavit filed in response to the directions in
these proceedings has stated:-
A. that the movable assets of the petitioner no.1 comprise of monies
lying in three saving bank accounts with the respondent no.5 CBI
and one saving bank account with the respondent no.6 BoI besides
24% shareholding in M/s. Allwyn Cooper Pvt. Ltd. and 20% share
in the partnership firm Shri Radhe Shyam Krishi Udyog;
B. that the immovable assets of the petitioner no.1 comprise of G-3,
Dhawandeep Building, 6, Jantar Mantar Lane, New Delhi and flat
no.NGQ212, DLF, New Town Heights, Sector 90, Gurgaon; while
the former is let out at a rent of Rs.1.32 lacs per month (i.e.
Rs.1.18 after TDS) the flat at Gurgaon is ready for possession;
W.P.(C) No.10198/2015 Page 11 of 17
C. that the petitioner no.1 incurs a current monthly expenditure on
medical and nursing care of Rs.4,16,296/- and on electricity and
water of Rs.26,000/- per month;
D. that M/s. Allwyn Cooper Pvt. Ltd. and Shri Radhey Shayam
Business Centre has till now incurred expenses of
Rs.1,15,14,211/- for the treatment of the petitioner no.1 and Dr.
Pragati Shukla sister of the petitioner no.1 has incurred expenses
of Rs. USD92,671/- on the petitioner no.1;
E. that the petitioner no.2 seeks:
(i) to withdraw Rs.3,24,296/- per month with escalation from the
bank account of the petitioner no.1, to take care of the
expenses of the petitioner no.1, after adjusting the rent being
received of Rs.1,18,000/- per month.
(ii) to from time to time withdraw from the accounts to
purchase new equipment and hospitalization as and when
required;
(iii) to withdraw monies from the accounts to re-pay the loan;
(iv) permission for investment of the amounts lying in the
saving bank account into FDRs;
W.P.(C) No.10198/2015 Page 12 of 17
(v) permission to renew/enter into fresh Lease Deed with
respect to flat no.G-3, Dhawandeep Building, 6, Jantar
Mantar Lane, New Delhi.
(vi) permission to take possession of flat no.NGQ212, DLF,
New Town Heights, Sector 90, Gurgaon and to lease out the
same; and,
(vii) to sell the immovable properties of the petitioner no.1.
F. The petitioner no.2 has undertaken to this Court:-
(i) to submit all originals bills of expenses;
(ii) to submit quarterly statement of accounts of the amounts
withdrawn and the expenses incurred; and,
(iii) not to create any third party interest with respect to the
immovable properties of the petitioner no.1 without prior
permission of this Court.
G. The petitioner no.1 has also filed a list of her assets.
14. The SDM, Hauz Khas has reported:-
(i) that the petitioner no.2, her husband and her brother reside on the
second floor of D-353, Defence Colony, New Delhi where the
petitioner no.1 is lying in a comatose state;
W.P.(C) No.10198/2015 Page 13 of 17
(ii) that the said second floor is in the name of the company in which
the petitioner no.1 is a Director;
(iii) two nurses from Health Care at home were at the time of his visit
found attending to the petitioner no.1;
(iv) the petitioner no.1 appeared to be sleeping but did not respond and
is being fed through pipe;
(v) that the other floors of the said Defence Colony house do not
belong to the petitioners and were found to belong to others;
(vi) that the estranged husband and son of the petitioner no.12 namely
Shri Jyoti Swarup Pande and Shri Vinayak Pande were also met;
and,
(vii) that the petitioner no.1 also has equity shares, bonds and
debentures and mutual funds.
15. In my view, considering:
(a) that it stands proved that the petitioner no.1 is lying in a comatose
position and is unable to look after her affairs;
(b) that the petitioner no.2 who seeks appointment as the guardian of
the person and property of the petitioner No.1 is the daughter of
the petitioner no.1 and the other close relatives of the petitioner
W.P.(C) No.10198/2015 Page 14 of 17
no.1 namely her son and her estranged husband have given their
No Objection to such appointment of the petitioner no.2;
(c) that the SDM, Hauz Khas has enquired into the matter and not
found anything to indicate that the petitioner No.2 is not the
appropriate and most suitable person to be entrusted with the
person and property of the petitioner No.1.
I find this to be a fit case to appoint the petitioner no.2 as a
guardian of person and property, movable and immovable, of the
petitioner no.1
16. The petition is accordingly disposed of appointing the petitioner No.2
Madhvi Pande D/o Mr. Jyoti Swarup Pande and W/o Mr. Mukund Raina and
R/o D-353, 2nd Floor, Defence Colony, New Delhi as the guardian of the person
and vested with the property of the petitioner No.1 Mrs. Pratibha Pande W/o Mr. Jyoti Swarup
Pandey R/o D-353, 2nd Floor, Defence Colony, New Delhi, to do all acts, deeds and things for
the proper medical treatment, nursing care, welfare and benefit of the petitioner No.1 Mrs.
Pratibha Pande and with power to do all act, deeds and things with respect to assets and
properties of the petitioner no.1 including; (i) operate bank accounts in the name of petitioner
No.1; (ii) deal with shares, bonds, debentures in the name of petitioner No.1; (iii) invest the
monies to earn optimum returns thereon; (iv) utilise the monies for proper upkeep and
W.P.(C) No.10198/2015 Page 15 of 17
for fulfilling the needs of petitioner No.1; (v) represent the petitioner No.1
before all persons / authorities / bodies; (vi) sign wherever required as guardian
of petitioner No.1 including for discharging any person / authority / body from
duty / obligation / liability owed to petitioner No.1; (vii) take possession and
charge of all properties movable or immovable to petitioner No.1; (viii) take
actions in law to protect interest of petitioner No.1; (ix) sign all deeds,
documents, cheques as guardian of petitioner No.1, etc., subject however to
following conditions:-
(i) The petitioner no.2 furnishing administration bond and a surety
bond with one guarantor in the sum of Rs.5 crores to the satisfaction of
worthy Registrar General of this Court.
(ii) Maintaining regular accounts of dealings with the properties of the
petitioner no.1.
(iii) The petitioner No.2 shall not sell, alienate or encumber any of the
immovable properties of the petitioner no.1 save with express
permission of this Court. The same will however not come in the way of
the petitioner no.2 letting out the immovable properties of the petitioner
no.1 from time to time and getting back the possession thereof.
W.P.(C) No.10198/2015 Page 16 of 17
(iv) The petitioner No.2 shall comply with other requirements of being
the guardian of petitioner No.1.
17. Needless to state, such appointment is till the petitioner No.1 is unable to
look after her affairs and subject to revocation in accordance with law.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 24, 2016 'gsr'/pp.
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