THE HON'BLE SRI JUSTICE [ENTITY] %22[CASE NUMBER]06[CASE NUMBER]2018 W[CASE NUMBER]P[CASE NUMBER]NO[CASE NUMBER]20452 OF 2018 RATNAKAR PEDDADA AND ANTOHER PETITIONERS AND STATE OF TELANGANA, REPRESENTED BY ITS PRINCIPAL SECRETARY, HEALTH, MEDICAL AND FAMILY WELFARE, HYDERABAD AND TWO OTHERS[CASE NUMBER] RESPONDENTS Counsel for the petitioners : Sri [ENTITY] Counsel for the respondents Government Pleader for Medical and Health[CASE NUMBER] < Gist Head Note[CASE NUMBER] ?Cases Referred: 1[CASE NUMBER] AIR 2010 Ori, 99 2[CASE NUMBER] AIR 2005 P & H 172 3[CASE NUMBER] W[CASE NUMBER]P[CASE NUMBER] (C) No[CASE NUMBER] 15822 of 2017 (C) dated 25[CASE NUMBER]05[CASE NUMBER]2017 4[CASE NUMBER] AIR 2013 Ori[CASE NUMBER] 133 5[CASE NUMBER] 189(2012) DLT 427 6[CASE NUMBER] (2005) SCC 122 2 THE HON'BLE SRI JUSTICE [ENTITY] W[CASE NUMBER]P[CASE NUMBER]NO[CASE NUMBER]20452 OF 2018 ORDER
This writ petition is filed for a writ of Certiorari or for any other appropriate writ, direction or order under [SECTION] of the [ACT], calling for the records and to quash the impugned proceedings of the 2nd and 3rd respondents bearing letterNo[CASE NUMBER]3910[CASE NUMBER][CASE NUMBER] dated 14[CASE NUMBER]05[CASE NUMBER]2018, and the order bearing [CASE NUMBER][CASE NUMBER][CASE NUMBER][CASE NUMBER] dated 12[CASE NUMBER]02[CASE NUMBER]2017 respectively and consequently direct the respondents 2 and 3 to immediately grant approval for the kidney transplant from petitioner No[CASE NUMBER]2 to petitioner No[CASE NUMBER]1 in an expedited and time bound manner[CASE NUMBER]
The case of the petitioners, as per the averments made in the affidavit filed in support of the writ petition is that, the 1st petitioner is a graduate in pharmacy and currently self-employed and is unmarried, due to his health condition[CASE NUMBER] He is diagnosed with Tuberous Sclerosis, a chronic kidney disease[CASE NUMBER] As he suffered heavy internal bleeding (Peritoneal Haemorrhage) in his right kidney in the year 2007, he underwent a surgery to remove his right kidney[CASE NUMBER] The function of his left kidney got affected in November, 2016 and since then, he has been undergoing dialysis thrice a week at Asian Institute of Nephrology and Urology, Hyderabad and the doctors, who have been treating him regularly for the past twenty months, have strongly recommended surgical extraction and removal of his left kidney and transplantation of a new kidney in its place[CASE NUMBER] In the affidavit, petitioner No[CASE NUMBER]1 stated in detail, the side effects because of prolonged dialysis since November, 2016[CASE NUMBER]
It is further stated that the 1st petitioner is unable to carry on his profession, as he has to undergo dialysis thrice a week on every Monday, Wednesday and Friday with the consequent side effects of sheer exhaustion and fatigue and that the dialysis process since November, 2016, has taken a toll in all aspects, physically, mentally and financially[CASE NUMBER]
The mother of the 1st petitioner died in the year 2012 and his grandfather died in the year 2017[CASE NUMBER] During the life time of his mother, she employed the 2nd petitioner as driver-cum-family assistant, in the year 2007, and since then, he has been performing all the works entrusted to him and used to call the mother of the 1st petitioner as 'Amma'(mother)[CASE NUMBER] The 2nd petitioner also developed a close bond with his late grandfather during his visits to Hyderabad from Puttaparthi and used to help and accompany him while he was at Hyderabad[CASE NUMBER] The 2nd petitioner was also taking the 1st petitioner to dialysis procedure since November, 2016 and he has been constantly with the 1st petitioner and in some instances, has even carried him across in the hospitals on a wheel chair, when he was weak after the procedure or due to drop in hemoglobin levels[CASE NUMBER]
The father of the petitioner No[CASE NUMBER]1 died in the year 1986 due to kidney ailment and the younger married sister of the 1st petitioner is also suffering from chronic kidney disease stage-III (CKD III), and, therefore, unable to donate her kidney[CASE NUMBER] Because of his health issues, the petitioner No[CASE NUMBER]1 remained unmarried and, therefore, he has no spouse or children who can donate a kidney to him[CASE NUMBER] In these circumstances, he has no other recourse, but to obtain a kidney from a donor, who is not his near relative, but who is close to him and his family, for the last ten years[CASE NUMBER]
In the above back ground, the 2nd petitioner, who is having long standing association of over ten years with the petitioner and his family members, has come forward purely on account of love and affection to donate his kidney to the petitioner and not on account of any monetary consideration[CASE NUMBER]
Petitioner No[CASE NUMBER]1 is taking treatment at Asian Institute of Nephrology and Urology (AINU), Erramanzil, Hyderabad by Dr[CASE NUMBER] [ENTITY], Urologist[CASE NUMBER] On 11[CASE NUMBER]11[CASE NUMBER]2017, Dr[CASE NUMBER] [ENTITY], Nephrologist and Dry[CASE NUMBER][ENTITY], Urologist, working in the said institute, interviewed the petitioner Nos[CASE NUMBER]1 and 2 and the wife of the 2nd petitioner, for the purpose of sending a video of interview to the 3rd respondent - State Authorization Committee for Organ Transplant, Telangana State, represented by its Chairman, to grant permission for donation of kidney by the 2nd petitioner to him[CASE NUMBER] In the said video, which of 13 minutes duration, doctors explained the nature of the surgery, which the petitioner No[CASE NUMBER]1 has to go through and the nature of the surgery, which the 2nd petitioner has to go through and the various precautions, both of them have to take[CASE NUMBER] The said video was submitted to the 3rd respondent[CASE NUMBER]
In the affidavit it is further stated that the during the course of interview, petitioner No[CASE NUMBER]1 stated that the 2nd petitioner has been working with their family for the past ten years, ever since the time of his mother and that he has been assisting in all normal works as mentioned earlier and that he had voluntarily come forward, out of sheer love and affection towards him after seeing his misery in having lost his right kidney by surgery due to heavy internal bleeding (Peritoneal Haemorrhage) and infection to the left kidney and his continuous dialysis since November, 2016[CASE NUMBER] In the interview, 1st petitioner further stated that he has not pressurized the 2nd petitioner, nor promised or paid any monetary consideration to him or to anybody[CASE NUMBER] In the interview, the wife of the petitioner No[CASE NUMBER]2 also repeated the above version[CASE NUMBER] The 2nd petitioner also offered to show his bank account statement to confirm that there are no monetary transactions between himself and the 1st petitioner[CASE NUMBER] In the affidavit, the petitioner No[CASE NUMBER]1 made a tabular form, containing the questioning put by the doctors and the answers given by them[CASE NUMBER]
The Asian Institute of Nephrology and Urology, Hyderabad sent the above version in the form of CD to the 3rd respondent for consideration of the application for kidney transplant[CASE NUMBER] The petitioner No[CASE NUMBER]1 made application on 25[CASE NUMBER]11[CASE NUMBER]2017 through the hospital to the 3rd respondent seeking approval to permit the 2nd petitioner to donate his kidney to him[CASE NUMBER] The said application was submitted by the Institute along with video recording and other documents namely the affidavits of petitioners 1 and 2 and wife of the 2nd petitioner and the related documents[CASE NUMBER]
The 3rd respondent, interviewed the petitioners 1 and 2 and the wife of petitioner No[CASE NUMBER]2 on 29[CASE NUMBER]11[CASE NUMBER]2017 and in the said interview, they reiterated the version noted above[CASE NUMBER] 3rd respondent conducted another interview on 11[CASE NUMBER]12[CASE NUMBER]2017, which the petitioner No[CASE NUMBER]1 attended along with his maternal uncle[CASE NUMBER] On being questioned, the maternal uncle of petitioner No[CASE NUMBER]1 informed the panel that as he was not healthy, suffering from blood sugar problem and that the doctors advised him that any kidney donation would be risky for his life or the donee, he was not suitable to donate the kidney[CASE NUMBER]
Pursuant to the above interviews, 3rd respondent issued the proceedings dated 12[CASE NUMBER]12[CASE NUMBER]2017 rejecting the application of the petitioner No[CASE NUMBER]1, and on appeal, the 2nd respondent confirmed the same, thereby the permission sought for by the petitioners for transplanting kidney of 2nd petitioner to 1st petitioner, was rejected[CASE NUMBER] Aggrieved by the same, the present writ petition has been filed[CASE NUMBER]
Learned counsel for the petitioners, while reiterating the above averments, would submit that the object of the Act is to not prohibit the transplantation of human organs, but only to regulate and to see that there is no element of commercialization[CASE NUMBER] Referring to the ailment which the petitioner No[CASE NUMBER]1 is suffering, learned counsel submits that due to long association of the petitioner No[CASE NUMBER]2, with the family of the petitioner No[CASE NUMBER]1, and out of sheer love and affection and considering the plight of petitioner No[CASE NUMBER]1, whose kidneys are affected, and without there being any pressure exerted by the petitioner No[CASE NUMBER]1, or his family members, and also without there being any monetary consideration, the petitioner No[CASE NUMBER]2, who is not a relative of the petitioner No[CASE NUMBER]1, has come forward to donate the kidney, which is permissible under the Act with the prior approval of the Authorization Committee under [SECTION] of the [ACT] (for short 'the Act')[CASE NUMBER] He states that [SECTION] of the [ACT] (for short 'the Rules') stipulates the conditions, which the Authorization Committee has to consider while granting prior approval for transplantation of kidney under [SECTION] of the Act[CASE NUMBER] Under these rules, the Authorization Committee has to consider whether there is any commercial transaction between the recipient and the donor; that no payment has been made to the donor or any other person and; the circumstances which lead to the offer and the relevant documents[CASE NUMBER] Petitioners satisfy these conditions and they have filed affidavits and the video recording of their statement given to the doctor and they have also made affirmative statement before the authorization committee[CASE NUMBER] But, without considering these material facts and circumstances and the evidence produced by the petitioners, the 3rd respondent rejected the approval on mere suspension stating that the Committee is not convinced regarding altruistic nature of donation[CASE NUMBER] He stated that no reasons have been recorded considering the material produced by the petitioners and the same has been upheld by the 2nd respondent - appellate authority[CASE NUMBER] Relying on the Division Bench judgment of the High Court of Orissa in [PRECEDENT], learned counsel contended that on the ground of mere suspension, necessary approval could not be denied[CASE NUMBER] He stated that economic disparity between the petitioner No[CASE NUMBER]2 and petitioner No[CASE NUMBER]l, cannot be a ground for rejection and the facts and circumstances of the case, has to be considered in a holistic manner[CASE NUMBER] In support of this contention, learned counsel relied on the judgments of the High Courts of Punjab and Haryana, and Kerala at Ernakulam, in [PRECEDENT] and [PRECEDENT] [CASE NUMBER] Learned counsel further submits that in the present case, there is no commercial element and there is no exploitation of the 2nd petitioner, and the petitioners sought to prove the same by their affidavits and also giving statements before the respondents 2 and 3[CASE NUMBER] But without considering the said material evidence and recording any reasons, the impugned order has been passed in a cryptic manner[CASE NUMBER] In support of his contention that in the absence of commercial element, the competent authority cannot reject the application of petitioner No[CASE NUMBER]1, learned counsel relied on the judgments in MRS[CASE NUMBER] INDU BEHERA vs[CASE NUMBER] STATE OF ORISA AND AIR 2010 Ori[CASE NUMBER] 99 AIR 2005 P & H 172 [CASE NUMBER] ( C ) dated 25[CASE NUMBER]05[CASE NUMBER]2017 OTHERS4 and [PRECEDENT][CASE NUMBER] With these submissions, learned counsel sought to set aside the impugned order and to grant permission for kidney transplantation[CASE NUMBER]
On the other hand, learned Government Pleader for Medical and Health appearing for respondents submit that the 2nd petitioner is working with the family of the 1st respondent and there is huge economic disparity and the theory of love and affection pleaded for donation of kidney, is far from imagination, and in these circumstances, absence of monetary consideration, cannot be ruled out[CASE NUMBER] Therefore, the primary authority rejected the claim of the petitioners and the same has been confirmed by appellate authority[CASE NUMBER] Therefore, the impugned proceedings may not be interfered with[CASE NUMBER]
In the present, petitioner No[CASE NUMBER]2 is not the near relative of petitioner No[CASE NUMBER]1 and it is stated that because of his long association with the family of petitioner No[CASE NUMBER]1, since 2007, and out of love and affection and seeing the health condition and misery of the petitioner, he has come forward to donate kidney without there being any coercion or monetary consideration[CASE NUMBER]
Before considering the contentions of the learned counsel, first it is necessary to note the object of the Act; and the relevant provisions under [SECTION] of the Act and [SECTION] of the Rules, since the donor is not the relative of the recipient[CASE NUMBER]
Paragraph No[CASE NUMBER]3 of the Statement of Objects and Reasons of the Act, reads thus:
[CASE NUMBER] "Against this background, it is considered necessary to enact a comprehensive law for regulating the removal and transplantation of human organs and for preventing commercial dealings in organs by providing punishment for such dealings[CASE NUMBER]"
9[CASE NUMBER] Restrictions on removal and transplantation of human organs or tissues or both:
(3) If any donor authorizes the removal of any of his human organ or tissues or both before his death under [SECTION] for transplantation into the body of such recipient, not being a near relative, as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ or tissue or both shall not be removed and transplanted without the prior approval of the Authorisation Committee[CASE NUMBER]
Rule (7) Authorisation Committee:
(3) When the proposed donor and the recipient are not near relatives, the Authorisation Committee shall,
(i) evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person;
(ii) prepare an explanation of the link between them and the circumstances which led to the offer being made;
(iii) examine the reasons why the donor wishes to donate;
(iv) examine the documentary evidence of the link, e[CASE NUMBER]g[CASE NUMBER] proof that they have lived together, etc[CASE NUMBER];
(v) examine old photographs showing the donor and the recipient together;
(vi) evaluate that there is no middleman or tout involved;
(vii) evaluate that financial status of the donor and the recipient by asking them to give appropriate evidence of their vocation and income for the previous three financial years and any gross disparity between the status of the two must be evaluated in the backdrop of the objective of preventing commercial dealing;
(viii) ensure that the donor is not a drug addict; (ix) ensure that the near relative or if near relative is not available, any adult
person related to donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness about his or her intention to donate an organ or tissue, the authenticity of the link between the donor and the recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of[CASE NUMBER]
From a reading of statement of objects and reasons of the enactment and the provisions, it is clear that the object of the legislation is not to prohibit, but to regulate the removal and transplantation of human organs and to prevent commercial dealings in allowing transplantation of organs[CASE NUMBER] [SECTION] of the Act, provides certain restrictions and under sub section 3 of the said provision, where the donor is not a near relative of the recipient, such human organ or tissue or both, shall not be removed and transplanted without the prior approval of the Authorization Committee, and [SECTION] of the Rules mandates the Authorization Committee to satisfy with regard to conditions enumerated therein before granting approval for removal of the human organ or tissue[CASE NUMBER]
[SECTION] contemplates that the Authorization Committee before approving the transplantation, shall evaluate that there is no commercial transaction between the recipient and the donor and that no payment is either made or promised to be made; prepare an explanation of the link between them and the circumstances leading to such donation of human organ; reasons for such donation of organ; examine the documentary evidence of their link with proof viz[CASE NUMBER], photographs; to evaluate that there is no middleman or tout involved; evaluate the financial status of the donor to ensure that there is no commercial transaction and; to interview near relative, or if no near relative is available to interview one adult person related to the donor by blood or marriage of the proposed unrelated donor[CASE NUMBER]
A Division Bench of the High Court of Delhi in [ENTITY] (5 supra), considering the provisions of the Act, held as under:
"49[CASE NUMBER] From the above statutory provisions and the scheme of the Act, it becomes clear that the Act and the Rules do not seek to prohibit, but to only regulate the transplant of organs and tissues from cadavers and living human beings[CASE NUMBER] What is prohibited is the commercial transaction in the giving and taking of organs and tissues[CASE NUMBER] However, donations offered out of love and affection - even amongst those who are not near relatives, is permitted[CASE NUMBER] The aforesaid scheme under the Act recognizes two of the greatest human virtues of love and sacrifice, and also the fact that such intense love and affection need not necessarily be felt only for one's own blood or spouse, but could also extend to those not so closely related, or for those not related at all[CASE NUMBER]
50[CASE NUMBER] From the scheme of the Act and the Rules it appears that organ[CASE NUMBER]tissue donation by a person before his death can be made not only for the therapeutic purposes of a recipient who is a near relative, i[CASE NUMBER]e[CASE NUMBER], son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter, but also for therapeutic purposes of persons[CASE NUMBER]recipients who do not fall within the definition of the expression "near relative"[CASE NUMBER] [SECTION] of the Act, while generally providing that no human organ or tissue, or both, removed from the body of a donor before his death shall be transplanted into a recipient, unless the donor is a near relative of the recipient, saves from application of this general rule, cases which fall under sub-section (3) of Section
9[CASE NUMBER] Therefore, a donor, who is not a near relative of the recipient may by reason of "affection, or attachment towards the recipient or for any other special reasons" authorize the removal of his human organ or tissue or both for transplantation in a recipient for therapeutic reasons[CASE NUMBER] The caveat is that in such circumstances prior approval, before removal and transplantation, would be required of the Authorization Committee[CASE NUMBER]
51[CASE NUMBER] It also needs to be emphasized that an approval of the Authorization Committee is necessary and required to be obtained only in such cases, where the donor and recipient are not near relatives, or in cases where the donor or the recipient, being near relatives, is a foreign national (see [SECTION][CASE NUMBER] The role of the Authorisation Committee comes into play primarily in cases where the donor and the recipient are not near relatives, and it is the function of the Authorizsation Committee to ascertain and evaluate, by applying the guidelines[CASE NUMBER]yardsticks and tests provided in [SECTION] and [SECTION] of the Rules, whether there is a commercial transaction between the recipient and the donor, and to ensure that no payment of money or monies worth has been made to the donor, or promised to be made to the donor or any other person on account of the fact that the donor has agreed to donate an organ or tissue to the recipient[CASE NUMBER] The Authorization Committee is required to enquire whether the donor is offering his organ[CASE NUMBER]tissue by reason of affection or attachment towards the recipient or for any other special reasons[CASE NUMBER] The law also mandates that the approach of the Authorization Committee in such matters has to be pragmatic and its discretion has to be used judiciously, particularly in cases which require immediate transplantation[CASE NUMBER]"
The Apex Court in [PRECEDENT] considering the facts and circumstances where the donor not being near relative of recipient, held that approval has to be accorded by Authorization Committee under [SECTION] of the Act and the burden is on the applicant to satisfy the said Committee that such donation of human organ, is not for commercial consideration, but for reasons of affection or attachment towards recipient or for any other special reasons[CASE NUMBER]
In the light of the above statutory provisions and the law laid down in the above judgments, now it is necessary to look into the case of the petitioners[CASE NUMBER] As per the averments made in the affidavit filed in support of the writ petition, the case of the petitioners is that the 1st petitioner is suffering from kidney ailment[CASE NUMBER] His right kidney was removed in the year 2007 and during November, 2016, his left kidney was also affected and he is on dialysis since then, taking treatment at Asian Institute of Nephrology and Urology, Erramanzil, Hyderabad, where he was recommended surgical extraction and removal of his left kidney and transplantation of a [CASE NUMBER] new kidney in its place[CASE NUMBER] The 2nd petitioner, is not a close relative of the petitioner No[CASE NUMBER]1 and it is stated that he has been working under the family of 1st petitioner since 2007 and has been assisting the petitioner No[CASE NUMBER]1 and taking him to dialysis and is aware of the condition of the petitioner No[CASE NUMBER]1, who is suffering from different ailments because of kidneys disfunction[CASE NUMBER] Out of love and affection, he has come forward to donate one of his kidneys to petitioner No[CASE NUMBER]1, without any commercial element and coercion[CASE NUMBER] The wife of the 2nd petitioner consented for this act[CASE NUMBER]
The doctors at AINU, Dr[CASE NUMBER] [ENTITY], Nephrologist and Dr[CASE NUMBER] [ENTITY], Urologist, examined the petitioners 1 and 2 and the wife of the 2nd petitioner and the same was recorded in the form of C[CASE NUMBER]Ds[CASE NUMBER] for the purpose of sending to the competent authority[CASE NUMBER] The petitioners 1 and 2 and the wife of the 2nd petitioner filed affidavits along with medical history, C[CASE NUMBER]Ds[CASE NUMBER] of the above interview before the Authorizstion Committee[CASE NUMBER] The Authorization Committee also examined them, where the petitioner No[CASE NUMBER]2 and his wife reiterated their case that 2nd petitioner was offering his kidney out of pure love and affection and on account of his long association with the family of the petitioner No[CASE NUMBER]1 for more than ten years and that there is no involvement of pressure or monetary consideration[CASE NUMBER] The 3rd respondent
- Authorization Committee passed the following order dated 12[CASE NUMBER]12[CASE NUMBER]2017, rejecting the application of the petitioner No[CASE NUMBER]1:
"The Committee is not convinced altruistic nature of donation[CASE NUMBER]"
On appeal, the 2nd respondent, who is the appellate authority, passed the following order dated 14[CASE NUMBER]05[CASE NUMBER]2018:
"The donor Sri [ENTITY], s[CASE NUMBER]o Sri [ENTITY], R[CASE NUMBER]o H[CASE NUMBER]No[CASE NUMBER]8-3- 228[CASE NUMBER]678[CASE NUMBER]822, Karmikhanagar, Yousufguda, Hyderabad is found to be your car driver and it is difficult to believe that there is no financial consideration[CASE NUMBER] The prospective donor also could not explain the reasons for his decision[CASE NUMBER]
After hearing both sides on 10[CASE NUMBER]05[CASE NUMBER]2018, Government after careful examination hold that there are no grounds to interfere with the decision of the Authorization Committee[CASE NUMBER] Accordingly Government here by uphold the order of the Authorization Committee and the appeal is hereby rejected[CASE NUMBER]"
From a reading of the above orders of both the primary as well as appellate authority it is clear that the material evidence produced by the petitioners, has not even been referred to or considered and no cogent reasons have been recorded for refusing their request and cryptic orders have been passed[CASE NUMBER] This amounts to violation of principles of natural justice[CASE NUMBER]
It is to be seen that merely because the petitioner No[CASE NUMBER]2 is working with the 1st petitioner or that there is economic disparity, in the absence of tangible material, it cannot be concluded that there would be financial consideration[CASE NUMBER] The specific case of petitioner No[CASE NUMBER]2 and his wife is that out of sheer love and affection and close association with the family of the 1st petitioner, petitioner No[CASE NUMBER]2 has come forward to donate his kidney[CASE NUMBER] To prove their case, they have filed affidavits and given statements before the doctors and also before the 3rd and the 2nd respondents[CASE NUMBER] But the said material has not even been referred to, let alone consideration[CASE NUMBER]
2nd petitioner is present in court and he is identified by his counsel and his identity has not been disputed by the learned Government Pleader for Medical and Health[CASE NUMBER] To ascertain the truth or otherwise of the averments made in the affidavit, this court examined 2nd petitioner, who categorically stated that out of sheer love and affection and close association with the family of 1st petitioner for more than ten years and by seeing the miserable health condition of 1st petitioner, whose both the kidneys are damaged, he intends to donate the kidney without any coercion or for any monetary gain[CASE NUMBER]
But in the impugned order, the 2nd responded recorded that the prospective donor i[CASE NUMBER]e[CASE NUMBER], the 2nd petitioner could not explain the reasons for his decision[CASE NUMBER] This finding of the 2nd respondent, without considering the material evidence and without recording any reasons, can be said to be on mere suspicion and based on conjunctures and surmises, which cannot be sustained[CASE NUMBER]
In similar circumstances, a Division Bench of the High Court of Punjab and Haryana in [ENTITY]'s case (2 supra) held that merely because there was economic disparity between the recipient and the proposed donor that would be no reason to draw any inference that the recipient was actually receiving the donated organ on money consideration[CASE NUMBER] The relevant portion of the order is as under:
"10[CASE NUMBER] A perusal of the orders Annexures P[CASE NUMBER]12 and P[CASE NUMBER]13 clearly shows that the only reason given by respondent Nos[CASE NUMBER]2 and 3 to refuse the necessary approval to the petitioner and the proposed donor is that "the money involvement could not be ruled out[CASE NUMBER]" The aforesaid conclusion has been drawn merely on account of the fact that there was a great economic disparity between the petitioner and the proposed donor[CASE NUMBER] However, in our considered view, the aforesaid, ground is totally an extraneous ground and merely because there was economic disparity between the petitioner and the proposed donor would be no reason to draw any inference that the petitioner was actually receiving the donated organ on money consideration[CASE NUMBER] The human conduct and reactions cannot be measured in any mathematical terms[CASE NUMBER] The instances are not unknown where people due to sheer love and affection or due to humanitarian consideration do act for the welfare of a needy person[CASE NUMBER] All such actions of the good doers cannot be suspected and need not be viewed with any tainted glasses[CASE NUMBER] We are also impressed by the enquiry held by the Senior Superintendent of Police, Jalandhar, which has been mentioned by the respondents in their own reply[CASE NUMBER] It has been specifically reported by the Senior Superintendent of Police, Jalandhar that as per the police report there was no money transaction between donor and patient and the aforesaid kidney transplantation is likely to be done on humanitarian ground[CASE NUMBER] In view of the aforesaid positive and specific report of the police, there was absolutely no material with the Authorization Committee or the Appellate Authority to reject the claim of petitioner[CASE NUMBER] It is apparent that the Authorization Committee as well as the Appellate Authority have been influenced by the suspicious atmosphere which had been created on account of some irregularities in kidney transplantation in the past[CASE NUMBER] However, the result of the aforesaid suspicious atmosphere cannot be allowed to become a dead wall for seriously ill patients, like the petitioner[CASE NUMBER] Accordingly we find that as per the affidavits Annexures P[CASE NUMBER]1, P[CASE NUMBER]2 and P[CASE NUMBER]3 and various medical reports and the enquiry conducted by the police itself, the offer of donation of kidney made by [ENTITY] to petitioner, [ENTITY] cannot be termed to be tainted or because of involvement of any money consideration[CASE NUMBER]
11[CASE NUMBER] As a result of the aforesaid discussion, we allow the present petition and quash orders Annexures P[CASE NUMBER]12 and P[CASE NUMBER]13[CASE NUMBER] As a consequence thereof, we direct respondent No[CASE NUMBER]3, Chairman, Authorization Committee to grant necessary approval to the petitioner, forthwith, to receive the kidney proposed to be donated by [ENTITY][CASE NUMBER]"
In another judgment in [ENTITY] (3 supra), a learned single judge of High Court of Kerala, held as under:
"6[CASE NUMBER] As noted above, one of the reasons stated by the Authorisation Committee in the instant case to decline the approval sought by the petitioner is that there is gross disparity between the financial status of the donor and recipient[CASE NUMBER] True, financial status of the parties is certainly a factor to be gone into by the Authorisation Committee to ascertain whether the donation of the organ proposed is voluntary and also to ascertain whether there is any financial dealings in the transaction[CASE NUMBER] But, that does not mean that transplantation cannot be permitted, if there is disparity in the financial status of the donor and recipient[CASE NUMBER] Voluntary donation of an organ by a person is a self deprivation of the highest order and it is inhuman to hold that such sacrifices would be made by people only based on monetary considerations[CASE NUMBER]
7[CASE NUMBER] From the aforesaid materials, I am of the view that the case of the second petitioner that he had worked with the first petitioner in his aluminium fabrication workshop, cannot be said to be false as the first petitioner belongs to a place near to Kanhangad[CASE NUMBER] If the said case set up by the petitioners is correct, the only remaining question is as to whether there exists a relationship between them sufficient for the second petitioner to donate one of his organs to the first petitioner[CASE NUMBER] It is very difficult to make inferences about the depth of the relationships between persons from surrounding circumstances[CASE NUMBER] Further, according to me, such an enquiry is not contemplated also for the purpose of the statute, for, the statue does not prohibit transplantation[CASE NUMBER] As noted above, the scheme of the statute is that if circumstances indicate a possible relationship for one person to donate his organ to save the life of another, the approval sought has to be granted[CASE NUMBER]"
The quintessence of the above judgments is that the Authorization Committee has to inquire whether there has been a commercial transaction between the donor and the recipient[CASE NUMBER] If the result of the inquiry is in the negative, then evaluating the evidence on record, it has to grant approval for transplantation[CASE NUMBER] The approach of the Committee shall be pragmatic and its discretion has to be used judiciously, and that mere suspicion or economic disparity cannot be a ground for rejection of approval[CASE NUMBER]
In the present case, the primary, as well as appellate authorities have not considered the material evidence on record and also have not recorded any reasons for rejecting the approval for kidney transplantation[CASE NUMBER] The discretion vested in them has not been exercised in a judicious manner and the rejection has been on mere surmises and conjunctures, and hence the impugned orders passed in violation of principles of natural justice, are liable to be set aside[CASE NUMBER]
For the foregoing reasons, the impugned proceedings of the 2nd respondent vide letterNo[CASE NUMBER]3910[CASE NUMBER][CASE NUMBER] dated 14[CASE NUMBER]05[CASE NUMBER]2018, confirming the order of rejection passed by the 3rd respondent bearing [CASE NUMBER][CASE NUMBER][CASE NUMBER][CASE NUMBER] dated 12[CASE NUMBER]02[CASE NUMBER]2017, is set aside[CASE NUMBER] Consequently both the orders dated 14[CASE NUMBER]05[CASE NUMBER]2018 and 12[CASE NUMBER]2[CASE NUMBER]2017, are set aside and the writ petition is allowed[CASE NUMBER]
Learned counsel for the petitioners, based on medical record of the petitioner No[CASE NUMBER]1 submits that the petitioner No[CASE NUMBER]1 is on dialysis since November, 2016 and his condition is very disappointing and that any delay in the process of reconsideration by the 3rd respondent in granting approval as required under [SECTION] of the Act, would further deteriorate the condition of the petitioner and therefore, he sought to direct the 3rd respondent to grant approval[CASE NUMBER]
Learned single Judge of High Court of Delhi in [ENTITY]'s case (5 supra) relying on the judgment of the Apex Court in [PRECEDENT], held that in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or given directions which the Government or a public authority should have passed or exercised its discretion at a proper level[CASE NUMBER] The relevant portion is thus:
[PRECEDENT][CASE NUMBER] In the light of the aforesaid facts, circumstances, discussion and the law, in my view, the impugned decision of the Authorization Committee as well as the appellate authority are wholly unsustainable and, accordingly, they are quashed[CASE NUMBER] The question is, at this stage, what should be the approach of the Court - whether the matter should be remanded back to the Authorisation Committee or the appellate authority for consideration, or whether the court would be justified in directing the Authorization Committee to grant its approval without any further examination of the matter by it[CASE NUMBER]
84[CASE NUMBER] The Supreme Court in Comptroller and Auditor General of India Gian Prakash, New Delhi (supra) held in para 20 that in an appropriate case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or given directions which the Government or a public authority should have passed or exercised its discretion at a proper level[CASE NUMBER]
85[CASE NUMBER] In the present case, the petitioner No[CASE NUMBER]1 has been in need of a kidney replacement since June, 2011[CASE NUMBER] The joint application for seeking the approval of the Authorisation Committee was submitted by the petitioners in August, 2011[CASE NUMBER]
Over this period of time, the condition of the petitioner No[CASE NUMBER]1 has only deteriorated and she requires dialysis thrice a week[CASE NUMBER] Even from the interviews of petitioner No[CASE NUMBER]1 conducted on different dates, her deteriorating condition of her health is evident[CASE NUMBER]
86[CASE NUMBER] Considering these facts and circumstances, and the urgency of the matter, I am inclined to require the Authorization Committee to forthwith grant its approval to the case of the petitioners for donation of one kidney by petitioner No[CASE NUMBER]2 to petitioner No[CASE NUMBER]1 in terms of their application[CASE NUMBER] The formal approval should be granted within two days, failing which it shall be deemed that the said formal approval stands granted[CASE NUMBER]"
The facts of the present case disclose that the right kidney of the petitioner No[CASE NUMBER]1 was removed in the year 2007 and thereafter, as his left kidney was also affected, he is on dialysis since November, 2016, and the doctors at Asian Institute of Nephrology and Urology, Hyderabad, strongly recommended for surgical extraction and removal of his left kidney and transplantation of a new kidney in its place[CASE NUMBER] In the affidavit filed in support of the writ petition, petitioner No[CASE NUMBER]1 has described the side effects of prolonged dialysis since November, 2016, and by this time, as per the submission of the learned counsel for the petitioners, his health condition has considerably deteriorated[CASE NUMBER] He made application for kidney transplantation on 25[CASE NUMBER]11[CASE NUMBER]2017 through the hospital where he is taking treatment and thereafter, the impugned orders came to be passed[CASE NUMBER]
Having regard to the above facts and circumstances, the 3rd respondent is directed to forthwith grant approval for the kidney transplant from petitioner No[CASE NUMBER]2 to petitioner No[CASE NUMBER]1[CASE NUMBER]
Miscellaneous petitions pending, if any, shall stand closed[CASE NUMBER] No costs[CASE NUMBER]
[ENTITY],J DATE:22 06 2018 Note:
L[CASE NUMBER]R[CASE NUMBER] copy to be marked[CASE NUMBER]
B[CASE NUMBER]O AVS