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2012 DIGILAW 632 (PNJ)

Vinay Kumar v. State of Haryana

2012-04-26

MAHESH GROVER

body2012
JUDGMENT Mr. Mahesh Grover, J.: - The petitioner has invoked the jurisdiction of this Court and has prayed for quashing of the order dated 3.4.2012 (Annexure P-4) vide which no objection certificate sought by the petitioner for undertaking a renal transplant in Calcutta has been declined. The petitioner who is suffering from a renal disorder requires transplant as has been advised by MEDICA Superspeciality Hospital, Calcutta. According to Section 9(3)(e) of The Transplantation of Human Organs Act, 1994 (hereinafter referred to as the ‘Act’) it is incumbent upon a person seeking a transplant to seek a prior approval of the Authorization Committee. Section 9 (3) of the Act is extracted herebelow:- “Section 9. Restrictions on removal and transplantation of human organs (1) xxxxxxx (2) xxxxxxx (3) If any donor authorises the removal of any of his human organs before his death under sub-section (1) of Section 3 for transplantation into the body of such recipient, not being a near relative, as is specified by the door by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the Authorization Committee” 2. Section 3(1) of the said Act enables a living person to authorise removal of any organ of his body for therapeutic purposes and the same is extracted herebelow:- Section 3. Authority for removal of human organs. (1) Any donor may, in such manner, and subject to such conditions as may be prescribed, authorise the removal before his death, of any human organ of his body for therapeutic purposes.” 3. Therapeutic purposes have been defined in Section 2 (o) of the Act to mean systematic treatment of any disease or the measures to improve health according to any particular method or modality. Section 2(o) is extracted hereunder:- “Section 2(o) “therapeutic purposes” means systematic treatment of any disease or the measures to improve health according to any particular method or modality” 4. In accordance with the provisions of the Act, the petitioner applied for no objection certificate from the Authorization Committee which has declined the case of the petitioner for the following reasons which have been incorporated in Annexure P-4 and are extracted herebelow:- 5. The observations of the committee are as under:- A. That the applicant Mr. In accordance with the provisions of the Act, the petitioner applied for no objection certificate from the Authorization Committee which has declined the case of the petitioner for the following reasons which have been incorporated in Annexure P-4 and are extracted herebelow:- 5. The observations of the committee are as under:- A. That the applicant Mr. Vinay Kumar (recipient) s/o Sh.Harish Chand age 32 years resident of H.No. 22/1 Shanti Nagar ward no.2 Rewari has been diagnosed as a case of chronic kidney diseases and required renal transplantation as per the certificate issued by the Medical Superintendent. MEDICA Superspeciality Hospital, Kolkata. B. That as per the documents submitted by the applicant shows Smt. Amita Pal w/o Sh. Keshab Pal resident of Kuthipara, Kotwali Coochbehar, Kolkata is a donor. C. That the annexure P-5 of the Civil Writ Petition no. 4834 of 2012 titled as Vinay Kumar Vs. State of Haryana, as well as the document submitted, the applicant has made an appeal in the news paper in the State of Kolkata (West Bengal) for the donation of Kidney. D. That in the document of the applicant there is nothing which can prove that there is a close relationship/friendship etc. that indicate donation being offered due to love and affection with the patient. E. That the subsection (f) of the Section 19 of the Transplantation of the Human Organ Act 1994 is reproduced as under:- (a) Makes or received any payment for the supply of, or for an offer to supply any human organ. (b) seeks to find person willing to supply for payment any human organ. (c) offers to supply any human organ for payment. (d) initiates or negotiates any arrangement involving the making of any payment for the supply of, or for an offer to supply, any human organ. (e) takes part in the management or control of a body of persons, whether a society, firm or company, whose activities consist of or include the initiation or Negotiation of any arrangement referred to in clause (d) ; or (f) publishes or distributes or causes to be published or distributed any advertisement- (a) Inviting persons to supply for payment of any human organ; (b) offering to supply any human organ for payment; or (c) indicating that the advertieser is willing to initiate or negotiate any arrangement referred to in clause (d). That in view of the advertisement given in the news paper which is not allowed as per subsection (f) of Section 19 of the Act, no close relationship between the recipient and donor has been established from the perusal of the documents submitted by the applicant, therefore the committee unanimously decides to reject the application for granting NOC for transplantation of Kidney in Kolkata because the possibility of financial transaction cannot be ruled out in this case. Keeping in view the minutes of the Committee, there is no force in the application of Shri Vinay Kumar and the same is hereby rejected.” 6. This has resulted in the filing of the instant writ petition. 7. Upon notice of motion having been issued the respondents have entered appearance and even though no reply was filed considering the short time frame yet learned counsel for the State of Haryana on instructions from Dr. Jagmal Sood, Deputy Director, office of DGHS, Panchkula has reiterated virtually the same objections which have been indicated in the impugned order. 8. Learned counsel for the petitioner refers to Rule 6-B to contend that where the petitioner’s domicile is concerned it has merely to consider the residential status and grant a no objection accordingly and the legality of the transplant on the considerations set down in the Act as also in the impugned order are matters to be decided by the Authorization Committee, Calcutta where the transplant is likely to be effected and where the donor is situated. For the purposes of reference, Rule 6-B of the Act is extracted herebelow:- “6-B The State level committees shall be formed for the purpose of providing approval or no objection certificate to the respective donor and recipient to establish the legal and residential status as a domicile State. It is mandatory that if donor, recipient and place of transplantation are from different States, then the approval, or “no objection certificate” from the respective domicile State Government should be necessary. The institution where the transplant is to be undertaken in such case the approval of Authorization Committee is mandatory.” 9. In support of his contentions, learned counsel for the petitioner has referred to a judgment of High Court of Delhi attached to the petition as Annexure P-6 which has been passed on the basis of observations made by the Hon’ble Supreme Court in case titled as Kuldeep Singh Vs. In support of his contentions, learned counsel for the petitioner has referred to a judgment of High Court of Delhi attached to the petition as Annexure P-6 which has been passed on the basis of observations made by the Hon’ble Supreme Court in case titled as Kuldeep Singh Vs. State of Tamil Nadu reported as (2005) 11 SCC 122. The Hon’ble Supreme Court held in this case that the object of the Act was to prevent commercial dealings in human organs. The Authorization Committee is required to satisfy the real purpose of the donor authorizing removal of his organ and further Authorization Committee of the State to which donor or donee belongs to ascertain the true intent and purpose and to lift the veil, if any, of projected affection or attachment and that burden is on the applicant to establish the real intent by placing the relevant material for consideration of the Authorization Committee. It was further observed that it was always open for the Authorization Committee to seek information from the Authorization Committees of the other State. 10. As a matter of fact, the above extracted Rule 6-B was inserted in the statute after the decision rendered by the Hon’ble Supreme Court in Kuldeep Singh’s case (supra) making it mandatory to seek approval or NOC from the State of domicile but making “approval” mandatory from the place of intended transplant. 11. In the instant case as well the donor and the donee belong to different States and therefore, the observations of Kuldeep Singh’s case (supra) are attracted to the facts of the case as also the provisions of Rule 6B which prescribes a mandatory approval from the State of intended transplant. In so far as the other State is concerned, the incumbent seek for approval or NOC from the State of domicile which in the instant case happens to be the State of Haryana. 12. The judgment of Delhi High Court is on the lines of the reasoning given in Kuldeep Singh’s case (supra) 13. In so far as the other State is concerned, the incumbent seek for approval or NOC from the State of domicile which in the instant case happens to be the State of Haryana. 12. The judgment of Delhi High Court is on the lines of the reasoning given in Kuldeep Singh’s case (supra) 13. I am inclined to accept the aforesaid view as it is logical to presume that Rule 6 B would require a no objection from the State of domicile and necessarily an approval from the State where intended transplant is to take place, for the simple reason that a mandate has been cast upon the Authorization Committee of the place of intended transplant and such an interpretation is also likely to erase the possibility of a conflict between the two Authorization Committees and it is for this reason that a flexibility has been given to the domicile State as against the State of intended transplant. 14. For the aforesaid reasons, the writ petition is accepted and the respondents are directed to re-consider the question in the light of the observations made above and also in the light of the judgment rendered in Kuldeep Singh’s case (supra) and the judgment of the Delhi High Court in W.P.(C) No. 6105 of 2011 decided on 1.9.2011 attached alongwith petition as Annexure P-6. 15. Let the necessary exercise of the Authorization Committee be conducted and an appropriate order be passed within a period of one week from today or from the receipt of the certified copy of the order. ---------0.B.S.0------------