Calcutta High Court (Appellete Side)
Vishal Osatwal vs State Of West Bengal & Ors on 1 August, 2023
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01.08.2023
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A. No. 17528 of 2023
Vishal Osatwal
Vs.
State of West Bengal & Ors.
Mr. Siddhartha Lahiri,
Mr. Aritra Chakraborty,
Mr. Debraj Dutta
...for the petitioner
Ms. Tuli Sinha
` ... for the State
Mr. Amitabha Nayak,
Ms. Rumna Sahin
...for the respondent no. 2
Ms. Aditi Singhania ...for the respondent nos. 3 to 5 The petitioner, being the son of a person, who is in a comatose condition, has applied by way of this writ petition for being appointed as the nominee/guardian of his comatose father, for carrying out necessary acts and transactions with regard to the person and property of his father. Learned counsel appearing for the petitioner places reliance on several judgments and submits, in all fairness, that a medical board be appointed to ascertain the actual physical and mental condition of his father prior to passing any order. 2 Learned counsel appearing for the respondent no. 2 points out that, within the contemplation of Order 32A of the Code of Civil Procedure, the prayers made in the writ petition ought to be decided by a competent civil court. That apart, it is contended that there are two types of vegetative states of comatose - one persistent and the other permanent.
It is submitted that unless it is ascertained by way of appointment of a medical board as to the extent of the disability of the person concerned, there cannot be any appointment as sought for. Learned counsel appearing for the respondent no. 2 further points out that the affidavits of the other relatives of the comatose person, annexed to the writ petition, are in the nature of powers of attorney. That apart, from the affidavit of the daughter of the concerned person, annexed at page 152 of the writ petition, the same appears to have certain irregularities, since the date of affirmation is not clear from the same. It is submitted that the veracity of such affidavit ought to be ascertained, since the date of affirmation might be prior to purchase date of the stamp on which it is supposedly affirmed.
Upon hearing learned counsel for the petitioner and the respondent no. 2, it is seen that the nature 3 of the litigation is not adversarial. Learned counsel for the respondent no. 2 has raised an arguable issue as regards the maintainability of the writ petition, in the teeth of available alternative remedy by way of a civil suit. The said question is undoubtedly required to be decided at the stage of final hearing and passing of final orders. However, for the time being, the appointment of a medical board appears to be the immediate solution to ascertain the condition of the patient. However, since a relevant objection has been raised by learned counsel for the respondent no. 2 regarding the veracity of affidavit, annexed at page 152 of the writ petition, learned counsel for the proforma respondents, including the said daughter of the allegedly comatose person, shall furnish the original of the affidavit, a copy of which has been annexed at page 152 of the writ petition, on the next returnable date. For such purpose, the matter is adjourned till August 08, 2023, when it will be listed fairly at the top of the list.
It may further be mentioned that although at the beginning of the hearing, the State was represented through counsel, at the time when views were being asked from counsel for the purpose of appointment of a medical board, none was present for the State. As such, no decision on 4 the appointment of medical board could be taken today. Although learned counsel for the State makes an appearance at the time when the order is almost being concluded, the appointment of medical board is kept reserved for the next date, since a direction has already been issued for production of the original of affidavit, a copy of which is annexed at page 152 of the writ petition.
(Sabyasachi Bhattacharyya, J.)