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Madhya Pradesh High Court · body

2018 DIGILAW 149 (MP)

Amit Sharma v. State of M. P.

2018-02-05

ANAND PATHAK

body2018
ORDER 1. Present petition is preferred by the petitioner being crestfallen by the order dated 7.11.2017 (Annexure P/1) passed by respondent No. 2 hospital whereby the hospital has declined to forward the case of petitioner to District/State Authorization Committee for grant of NOC/approval for kidney transplantation. 2. The matter pertains to kidney transplantation. Petitioner through this petition is seeking direction to the Authorization Committee appointed by the State Government under the Transplantation of Human Organs and Tissues Act, 1994 to grant necessary sanction for kidney transplantation along with incidental relief as contained in the writ petition. 3. According to learned counsel, petitioner suffered failure of one of his kidneys and is fighting for life because he has been examined and advised to undergo kidney transplantation. All his blood relatives were examined but none were found to be medically, physically and mentally fit and competent to donate kidney. Medical documents of petitioner are placed as Annexure P/2. He also referred the document annexed as Annexure P/3 which indicates that no blood relative is competent for kidney transplantation in the case in hand. Respondent No.4 who is resident of district Shivpuri was found to be medically fit and his all parameters have been matched for the purpose of kidney transplantation to the petitioner. Petitioner referred detailed medical examination of respondent No.4 as Annexure P/4 collectively. Despite such efforts, rejection order dated 7.11.2017 provided the reason for the petitioner to file this writ petition under Article 226 of Constitution of India. On 29.1.2018 Shri K.N. Gupta, senior counsel was requested to act as Amicus Curiae in the matter. 4. Today at the outset, Shri Gupta, learned senior advocate/Amicus Curiae submits that case of petitioner needs to be examined as per rule 19 of Transplantation of Human Organs and Tissues Rules, 2014 (hereinafter referred to as 'the Rules of 2014'). Rule 19 provides for a mechanism whereby Authorization Committee of hospital or if hospital based Authorization Committee is not constituted, then by the District or State Level Authorization Committee shall take call. He placed an order dated 14.11.2017 passed in writ petition No.13101/2017 and seeks parity. He submits that Authorization Committee of Gandhi Medical College, Bhopal can be directed to take appropriate decision after placing the petitioner /donor and relevant documents on record before the said committee. 5. He placed an order dated 14.11.2017 passed in writ petition No.13101/2017 and seeks parity. He submits that Authorization Committee of Gandhi Medical College, Bhopal can be directed to take appropriate decision after placing the petitioner /donor and relevant documents on record before the said committee. 5. Respondents/State has no objection to such proposition and submits that matter can be referred to Authorization Committee of Gandhi Medical College, Bhopal. 6. Heard. 7. Parliament has enacted an Act with the nomenclature of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter referred to as 'the Act of 1994') to expedite the process of transplantation of human organs with following object: “An Act to provide for the regulation of removal, storage and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto. WHEREAS it is expedient to provide for the regulation of removal, storage and transplantation of human organs or tissues or both] for therapeutic purposes and for the prevention of commercial dealings in human organs or tissues or both; AND WHEREAS in Parliament has no power to make laws for the States with respect to any of the matters aforesaid except as provided in articles 249 and 250 of the Constitution; AND WHEREAS in pursuance of clause (1) of article 252 of the Constitution, resolutions have been passed by all the Houses of the Legislatures of the States of Goa, Himachal Pradesh and Maharashtra to the effect that the matters aforesaid should be regulated in those States by Parliament by law.” 8. Under section 9 of the Act of 1994, the Authorization Committee is competent to take decision in respect of donation of organ. In the District places the State Government has notified the District Medical Board as authorization committee to take decision in the matter. In exercise of power under section 24 of the Act of 1994, Central Government has made rules called the Transplantation of Human Organs and Tissues Rules, 2014. Under rule 7 sub-rule (4) of Rules of 2014, transplantation can be done after approval by the Authorization Committee of the hospital or District or State in which the transplantation is proposed to be done and the donation of organs shall be permissible only from near relatives of the swap recipients. Under rule 7 sub-rule (4) of Rules of 2014, transplantation can be done after approval by the Authorization Committee of the hospital or District or State in which the transplantation is proposed to be done and the donation of organs shall be permissible only from near relatives of the swap recipients. But in the instant case, as submitted, petitioner and respondent No.4 are not real relevant, therefore, their case would fall under rule 19 which reproduced as below: “19-Procedure in case of transplant other than near relatives – Where the proposed transplant is between other than near relatives and all cases where the donor or recipient is foreign national (irrespective of them being near relative or otherwise), the approval will be granted by the Authorization Committee of the hospital or if hospital based Authorization Committee is not constituted, then by the District or State Level Authorization Committee.” 9. In the present case, the Authorization Committee of the Siddhanta Red Cross Hospital (Joint Venture of Red Cross Society of Madhya Pradesh State UMS Health Care Bhopal) Red Cross Bhawan, Shivaji Nagar, Bhopal has refused to forward the matter before the District/State Authorization Committee. Therefore, the case of petitioner is liable to be considered by the District/State Authorization Committee under rule 19. 10. Therefore, in the fitness of things, in the fact situation of the case, petitioner is directed to submit his application for approval of transplantation by way of necessary forms/formalities to be submitted before the Authorization Committee of Gandhi Medical College, Bhopal. The said committee shall consider the case and said Authorization Committee shall pass appropriate order, preferably within 10 days from the date of production of application along with necessary documents along with certified copy of this order. It is expected from the committee that looking to the urgency of medical need, said committee would take proper decision on the application filed by the petitioner in the light of judgment passed by the Hon'ble apex Court in the matter of Kuldeep Singh and another v. State of Tamilnadu and others [ (2005) 11 SCC 122 ], as well as as per the Act of 1994 and Rules of 2014 along with fact situation of the case. Time limit of 10 days is expected to be adhered to by the said committee. 11. Time limit of 10 days is expected to be adhered to by the said committee. 11. Before partying, the assistance provided by Shri K.N. Gupta, Senior Advocate as amicus curiae deserves appreciation and acknowledgment. Petition stands disposed of with the aforesaid directions. Rinkesh Goyal for petitioner; Abhishek Mishra, Government Advocate for respondent No.1/state; K.N. Gupta with R.K. Shakya as amicus curiar.