IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 WP(C).No. 749 of 2011(P) ------------------------ PETITIONER(S): --------------- SIVADASAN, AGED 41 YEARS, S/O.NARAYANAN, VANNYAN (H), VIYYUR (P.O), THRISSUR DISTRICT. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.PRATHAP PILLAI SRI.RAJAN VELLOTH SRI.BENOJ C AUGUSTIN RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH, CENTRAL SECRETARIAT, NEW DELHI. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE SECRETARY TO GOVERNMENT OF KERALA, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 5. THE CHAIRMAN, DISTRICT LEVEL AUTHORIZATION COMMITTEE FOR TRANSPLANTATION OF HUMAN ORGANS, (THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, THRISSUR). 6. THE CHAIRMAN, DISTRICT LEVEL AUTHORIZATION COMMITTEE FOR (KOTTAYAM DISTRICT) TRANSPLANTATION OF HUMAN ORGANS. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R1 BY GOVT. PLEADER SRI. P.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.749 OF 2011(P) -------------------------------------------------- Dated this the 12th day of January, 2011 J U D G M E N T Challenge in this writ petition is against Ext.P7, an order passed by the 5th respondent. 2. Petitioner is a kidney patient undergoing treatment in West Fort Hi-Tech Hospital Limited, Trissur. On being advised of kidney transplantation, it is stated that the petitioner located a donor, who expressed his willingness to voluntarily donate one kidney to save the life of the petitioner. Since the approval of the 5th respondent is statutorily required, they filed a joint application, which resulted in Ext.P7 order, by which the approval sought was declined. The main reason stated in Ext.P7 reads as under. “due to absence of satisfactory proof of conditions (i)(ii) and (iii) of sub section (d) of Rule 6 F of the Rules, 1995.” It is this order which is under challenge in this writ petition. 3. Apart from contending that the order does not reflect consideration of the case on merits, petitioner also relies on Ext.P9, a communication issued by the Superintendent of Police, WPC.No. 749/2011 :2 : Idukki, which according to the petitioner states that on enquiry it was found that the aforesaid authority was satisfied that for the donation of kidney to the petitioner there is no commercial transaction. It is therefore submitted that the view taken in Ext.P7 is erroneous. 4. Having heard the learned counsel for the petitioner and the learned Government Pleader on behalf of respondents 2 to 6, I am inclined to think that the matter needs to be reconsidered. Rule 6(F)(d) (i)(ii)(iii), which are relied for rejecting the approval sought for by the petitioner reads as under. “(i) that there is no commercial transaction between the recipient and the donor. That no payment of money or moneys worth as referred to in the Act, has been made to the donor or promised to be made to the donor or any other person. In this connection the Authorization Committee shall take into consideration- (a) an explanation of the link between them and the circumstances which led to the offer being made; (b) documentary evidence of the link, e.g. proof that they have lived together, etc., WPC.No. 749/2011 :3 : (c) reasons why the donor wishes to donate; and (d) old photographs showing the donor and the recipient together. (ii) that there is no middleman or tout involved. (iii) that financial status of the donor and the recipient is probed by asking them to give appropriate evidence of their vocation and income for the previous thee financial years. Any gross disparity between the status of the two, must be evaluated in the backdrop of the objective of preventing commercial dealing;” 5. A reading of these rules shows that when an application is made, it is for the 5th respondent to make enquiries and to be satisfied of the requirements of the aforesaid rules. The satisfaction of the 5th respondent in this behalf should be reflected in the order passed. In this case, apart from stating that there is absence of satisfactory proof of the conditions laid down in the Rules the 5th respondent has not stated in what manner the conditions are not satisfied. 6. In that view of the matter, I set aside Ext.P7 and direct that on the production of a copy of this judgment, along with a WPC.No. 749/2011 :4 : coy of this writ petition, the 5th respondent shall conduct a fresh enquiry into the matter and pass a reasoned order dealing with the joint application made by the petitioner and the donor. Necessarily, this shall be done with notice to the petitioner and the donor also. An order in this behalf shall be passed without any delay in the matter. Petitioner to produce a copy of the judgment along with a copy of the writ petition before the 5th respondent for compliance. (ANTONY DOMINIC) JUDGE vi/