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2018 DIGILAW 170 (KER)

Musthafa C. v. State of Kerala Represented By The Secretary Health Department

2018-02-20

SHAJI P.CHALY

body2018
JUDGMENT : This writ petition is filed by the petitioners challenging Ext.P3 order passed by the 2nd respondent denying permission for Human Organ transplantation in accordance with the provisions of the Transplantation of Human Organs and Tissues Act, 1994. The grievance highlighted by the petitioners is that, 1st petitioner is a chronic kidney patient, undergoing Hemodialysis thrice in a week. Second petitioner is a close friend of the 1st petitioner, and they got acquainted while they were working as driver and cleaner in a school bus and later in a lorry. During the said period, health of the 1st petitioner deteriorated and on detailed medical examination, it was found that he is a chronic renal patient. 2. The close association of 1st petitioner and 2nd petitioner continued, and when the doctors of West Fort Hi- Tech Hospital, Thrissur advised for a transplantation, the information was passed to the 2nd petitioner and his family. As there were no suitable donor from the close relatives of the 1st petitioner, due to the affection and attachment towards the 1st petitioner, the 2nd petitioner offered his willingness to donate one kidney to the 1st petitioner, if it matches the 1st petitioner. Accordingly, a pre-transplant evaluation was conducted at the aforesaid hospital, and it was found that the kidney of the 2nd petitioner is perfectly matching to the 1st petitioner. 3. The Director of the Hospital referred above, submitted the application for Transplantation of Human Organ with necessary supporting documents before the 2nd respondent in accordance with Sec.9(5) of Act, 1994, evident from Ext.P1. Petitioners have also filed a joint application in Form-11 of the Rules, 2014, evident from Ext.P2. According to the petitioners, they have produced all such other documents required for the transplantation in accordance with the Act and Rules, 1994. However, the 2nd respondent as per Ext.P3 order has denied permission for organ transplantation for the reason that, there is gross disparity of the financial status between the petitioners, the donor and the son of the recipient could not explain satisfactorily the circumstances which led to the offer being made, etc. etc. It is also stated that, whatever documents are required for the purpose of considering the application in accordance with law were provided to the 2nd respondent. However, in spite of all these, the application was declined, which, according to the petitioners, without assigning any material reasons. etc. It is also stated that, whatever documents are required for the purpose of considering the application in accordance with law were provided to the 2nd respondent. However, in spite of all these, the application was declined, which, according to the petitioners, without assigning any material reasons. Learned counsel for the petitioners also pointed out that, the issue was considered with the same set of facts by a learned Single Judge of this Court, evident from Ext.P7, and submits that petitioners are also entitled to get the proposition of law laid down thereunder. 4. I have heard learned counsel for the petitioners and the learned Senior Government Pleader. Perused the documents on record and the pleadings put forth by the petitioners. 5. The sole issue to be considered in this case is, whether any manner of interference is warranted to Ext.P3 order passed by the 2nd respondent. Ext.P3 order is passed by the Authorization Committee assigning the following reasons: “Permission is not granted for the following reasons: 1. Rule 7 sub-section 3(i) to (vii) of the Transplantation of Human Organs and Tissues Rules, 2014 not complied with. 2. There is gross disparity between the financial status of the donor and recipient. The donor and recipient's son could not explain the satisfactorily link between them and the circumstances which led to the offer being made. Donor's son stated that recipient and donor were working in a school bus in the meanwhile donor said that they were co-workers in a mini lorry carrying fish. Donor is not aware where the recipient residing and how many children recipient have. As per the available record recipient have a son and 2 daughters and donor said that he had only one son. 3. They have totally failed to produce the proof regarding their close relation and due to the contradictory statement given by Donor's son, Donor and his wife, committee unanimously rejected the case.” 6. The main aspect that has weighed with the 2nd respondent is that, when necessary enquiries were made in order to identify the genuineness of the donor, the son of the recipient has given a contradictory version to the version put forth by the 2nd petitioner, who is the donor. The main aspect that has weighed with the 2nd respondent is that, when necessary enquiries were made in order to identify the genuineness of the donor, the son of the recipient has given a contradictory version to the version put forth by the 2nd petitioner, who is the donor. According to the 2nd respondent, when questions were put, in order to identify the acquaintance of the petitioners, contradictory statements were given by the son of the recipient, and the donor and that the donor could not give the correct family details of the recipient. In my considered opinion, the answer given by the son of the recipient and the recipient with respect to the nature of work carried out in different vehicles cannot be said to be a material evidence in order to arrive at a finding by the 2nd respondent. Fact remains, it is not under much dispute that the petitioners have acquaintance at least for some time. The 2nd respondent authority when considering such applications, should not be carried away by relying upon peripheral issues, rather deep-seated consideration should be provided to the issue, since the subject matter relates to transplantation of kidney. 7. Having regard to the facts and circumstances of the case, and also bearing in mind the proposition of law laid down in Ext.P7 judgment, holding that minor contradictions shall not be taken into consideration for non-suiting an applicant for transplantation of a human organ, I am of the considered opinion that, there is arbitrariness and illegality in Ext.P3 order passed. Therefore, I quash Ext.P3 order and direct the 2nd respondent to re-consider the application, and if there are no other legal impediments standing in the way other than the reasons mentioned in Ext.P3 discussed above, permission shall be granted at the earliest possible time, and at any rate, within two weeks from the date of receipt of a copy of this judgment. If there is any deficiency to the technical aspects of the application, same shall be rectified by the petitioners. The writ petition is disposed of accordingly.