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2021 DIGILAW 420 (ORI)

Pitambar Jena v. State Of Odisha

2021-10-07

C.R.DASH

body2021
ORDER 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. Though this matter was not listed today in the Board, on being mentioned urgently by Mr. Satyanarayan Mishra, learned counsel for the petitioner, the matter is taken up on Board through Special Notice. 3. Opposite Party No. 4 - Smt. Urmila Mahunta (the donor) files an affidavit in Court today through Advocate Mr. Prasanna Nanda, expressing her willingness to donate kidney to the petitioner. The Vakalatnama and Affidavit filed by Opp. Party No. 4 in Court today be kept on record. 4. Heard Mr. Satyanarayan Mishra, learned counsel for the petitioner, learned Additional Government Advocate for the State and Mr. Prasanna Nanda, learned counsel appearing for Opposite Party No. 4, who happens to be the mother-in-law of the petitioner. 5. The petitioner in this writ petition seeks a direction to the opposite parties, particularly Opposite Party No.3, i.e. Superintendent, S.C.B. Medical College & Hospital, Cuttack, to forward the application of the petitioner in the prescribed format for transplantation of kidney, to the State Level Authorization Committee, i.e. Opposite Party No.2, under the Transplantation of Human Organs and Tissues Act, 1994, for consideration. 6. Shorn of unnecessary details, it appears from the pleadings that, the petitioner is suffering from a disease of kidney and requires urgent kidney transplantation. It further appears that, he is unable to obtain a donor, who is a direct relative, and in fact, he has obtained consent from opposite party no. 4, who is a non-relative donor. The petitioner presented such non-relative donor (opp. party no. 4) before the Superintendent, S.C.B. Medical College & Hospital, Cuttack, for verification and testing, but the same appears to have been rejected on the ground that the petitioner and the proposed donor are not related. 7. It is not in dispute that, Superintendent, S.C.B. Medical College & Hospital, Cuttack has been issued with a Certificate of Registration under the Transplantation of Human Organs Rules, 1995, and although such Certificate of Registration has been issued in favour of Superintendent, S.C.B. Medical College & Hospital, Cuttack, in Clause-1 thereof a condition has been imposed as "related transplantation only". 8. 8. Since Opposite Party No. 4, i.e. the proposed donor of the petitioner is not related to the petitioner, therefore, by the terms of the Certificate of Registration granted in favour of the Superintendent, S.C.B. Medical College & Hospital, Cuttack, they are not permitted to refer such cases of non-related donor to the State Level Authorization Committee, i.e. Opp. Party No.2. 9. This Court, in W.P. (C) No. 13087 of 2013 (disposed of on 31.07.2013) has taken into consideration the condition in Clause No.1 in the Certificate granted under Transplantation of Human Organs Rules, 1995. Rule 4(e) of the said Rules, 1995, Rule 4(A)(4) of the said Rules and has ruled that in Clause No.1 of the Certificate of Registration granted under Transplantation of Human Organs Rules, 1995, the words "related transplantation only stands deleted from the Certificate of Registration. Taking into consideration all the aspects, this Court in the aforesaid Writ Petition and some other Writ Petitions, has allowed transplantation of kidney of non-related donor. 10. Taking all such facts into consideration and in view of the urgency, as stated at the Bar and noted in the petition for transplantation of the kidney of the petitioner, Opposite Party No.3, i.e. Superintendent, S.C.B. Medical College & Hospital, Cuttack is directed to evaluate the donor, whom the petitioner will produce before him, within a period of two weeks from today along with a certified copy of this order. Upon receipt of the same, the donors case shall be evaluated strictly in terms of the Transplantation of Human Organs and Tissues Act, 1994 and Transplantation of Human Organs Rules, 1995, and the application of the petitioner shall be forwarded immediately to the State Level Authorization Committee (Opposite Party No.2) for their consideration. The Authorization Committee is at liberty to consider all the aspects, as required by law, prior to granting such permission, and the petitioners case be expeditiously dealt with, preferably within a period of four weeks from the date of receipt of the application from the Superintendent, S.C.B. Medical College & Hospital, Cuttack (Opp. Party No.3). 11. With the aforesaid observation and direction, the Writ Petition is disposed of. 12. Urgent certified copy of this Order be granted as per rules. 13. A free copy of this order be supplied to learned Addl. Govt. Advocate for necessary compliance and communication and compliance.