CWP No.5947 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.5947 of 2009 Date of decision: April 21, 2009. Poonam Gupta ...Petitioner(s) v. State of Punjab & Ors. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri Kanwaljit Singh, Senior Advocate, with Shri Harmanjit Singh, Advocate for the petitioner. ORDER Surya Kant, J. - (Oral): In this writ petition, the petitioner seeks quashing of the orders dated 5.2.2009 and 2.4.2009 (Annexures P-4 and P-9) passed by the “Authorization Committee” and the “Appellate Authority” respectively, whereby prior permission for transplantation of kidney sought to be donated by respondent No.4 (donor) to the petitioner (recipient) has been declined. [2]. The petitioner who was detected to be suffering from high- blood pressure in the year 1994, was unfortunately diagnosed with renal failure in the year 1998 and is stated to be undergoing treatment from CWP No.5947 of 2009 -: 2 :- various hospitals including Dayanand Medical College and Hospital, Ludhiana and Silver Oaks Hospital, SAS Nagar (Mohali). In the year 2008, the petitioner was stated to have been advised transplantation of the kidney by the doctors as both of her kidneys have stopped functioning completely. [3]. The petitioner found a willing donor in respondent No.4 and therefore, sought “prior approval” of the Authorization Committee in terms of Section 9(3) of the Transplantation of Human Organs Act, 1994 (in short the Act). The Authorization Committee vide its order dated 5.2.2009 (Annexure P-4) declined the permission. The petitioner preferred an appeal as provided under Section 17 of the Act but the same has also been dismissed by the Appellate Authority vide order dated 2.4.2009 (Annexure P-9). [4]. Aggrieved, the petitioner has approached this Court. [5]. I have heard Learned Counsel for the Petitioner at some length and perused the impugned orders as well as other documents on record. [6]. Before adverting to the contentions raised by Learned Counsel for the Petitioner, it may be noticed here that the petitioner is more than 46 years old and a mother of two major children. Her husband is serving in a nationalized bank. Respondent No.4 (Sonu Dhir) is a 26 years old young married woman and is mother of two small children. Her husband, Vinay Dhir, is reportedly employed in a private job. [7]. The petitioner and respondent No.4 jointly applied in the prescribed format seeking prior permission for transplantation of respondent No.4's kidney to the petitioner. Each one of them, the petitioner, her husband - Vimal Gupta, respondent No.4 – Sonu Dhir, and her husband - Vinay Dhir, made a statement on oath before the Additional Deputy CWP No.5947 of 2009 -: 3 :- Commissioner (General) on 28.11.2008 (Annexure P-6) that they are close relatives. The husband of the petitioner, however, candidly admitted before the Authorization Committee that respondent No.4 is not related to them except that both the families know each other for the last about 17years. The husband of respondent No.4 stated that he knew the petitioner since the year 1986-87 when he had been working with Shri Vinod Chhabra, CA as he was statedly residing in the adjoining house of the petitioner. The husband of respondent No.4 worked for about 3-4 years only at Ludhiana. It may be mentioned here that in the entire correspondence including the application form, respondent No.4 and her husband are shown to be residents of House No.105/45, Gaushala Road, Fazilka, District Ferozepur. The husband of respondent No.4 has explained that after the death of his mother, the petitioner helped him a lot and besides making frequent visits to the petitioner's house, his marriage with respondent No.4 was also arranged by the petitioner. In sum and substance, the plea taken by respondent No.4 and her husband was that the kidney was decided to be donated out of sheer love and affection and not for any monetary considerations. [8]. While dismissing the appeal, the Appellate Authority has concluded as follows:- “I heard both the parties today on 2.4.2009. The submissions made in the appeal were reiterated by the appellant. I enquired as to why the brothers and sisters of Mrs. Poonam Gupta were not coming forward to offer their kidneys. The appellant replied that she did not have cordial relations with her brothers and sisters. After hearing both the parties, I come to the conclusion that this appeal CWP No.5947 of 2009 -: 4 :- deserves to be rejected. The relationship between Mrs. Poonam Gupta and Smt. Sonu Dhir is too tenuous. It has been stated that they were neighbours in 1986 and living in Ludhiana and since then they have been maintaining contacts. It was also stated that Smt. Sonu Dhir had in recent years attended the marriage in the house of Smt. Poonam Gupta about 9 years back and 25th wedding anniversary celebration about two years back. These instances do not establish that the relationship between Smt. Sonu Dhir and Mrs. Poonam Gupta was so deep that she would be willing to donate the kidney. Smt. Sonu Dhir is hardly 26 years old and is mother of two small children.” [9]. The transplantation of human organs is regulated by the Transplantation of Human Organs Act, 1994, the preamble of which manifests that the Act is being enacted for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs and for matters connected therewith or incidental thereto. Section 2(i) of the Act defines “near relative” which means spouse, son, daughter, father, mother, brother or sister. Section 9(1) of the Act categorically prohibits removal of human organ from the body of a donor before his death or its transplantation into a recipient unless donor is a near relative of the recipient save as otherwise provided in sub-section (3) thereof. Section 9(3) enables a donor to authorize the removal of any of his human organ before his death for transplantation into the body of such recipient who is not a near relative, by reason of affection or attachment towards the recipient or for any other CWP No.5947 of 2009 -: 5 :- special reasons but such removal or transplantation requires the prior approval of the Authorization Committee. Under sub-sections 5 and 6, the Authorization Committee after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of the Act and the rules, may accept or reject the application. [10]. Section 19 of the Act expressly prohibits commercial dealings in human organs and has made it a punishable act. Section 9(1), (3), (5) and (6) read as follows:- “9.Restrictions on removal and transplantation of human organs.- (1) Save as otherwise provided in sub- section (3), no human organ 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. (3) If any donor authorises the removal of any of his human organs before his death under sub-section (1) of section 3 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 shall not be removed and transplanted without the prior approval of the Authorisation Committee. (5) On an application jointly made, in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorisation Committee shall, after holding an inquiry and after satisfying itself that the CWP No.5947 of 2009 -: 6 :- applicants have complied with all the requirements of this Act and tile rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ. (6) If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval.” [11]. It may be seen that both the families were fully aware of the fact that they are not related to each other, nevertheless the petitioner, respondent No.4 and their husbands chose to describe themselves as “close relatives” apparently to mislead the authorities. The relationship between the families of the petitioner and respondent No.4 or the cause of their affection and attachment appears to be too hazy to be accepted outrightly. [12]. The legislative intentment behind the Act, explicitly and categorically promotes donation of human organs by close relatives, but prohibits by strangers save as in the case(s) of affection and attachment etc. The authorities under the Act are, therefore, obligated to inquire into the fact that in the later category of cases, the 'donation' is not laced with commercial consideration whereas the affection or attachment is just a pretence. [13]. There can possibly be no direct evidence of commercial dealings. The appreciation of facts and circumstances of each case would, therefore, be required by the authorities to draw a logical inference. In the CWP No.5947 of 2009 -: 7 :- case in hand, the two families are staying at far away places. May be that the husband of respondent No.4 stayed in the adjoining house of the petitioner for a period of 3-4 years in the year 1986-87. However, respondent No.4 was nowhere in spot at that time as her marriage was admittedly solemnized in the year 2000 only. Plea that the petitioner helped in performing respondent No.4's love marriage against the wishes of her parents, has no material support nor such an incident could tie them together so strongly that respondent No.4 would donate her kidney to the petitioner over and above to the later's own family members. Respondent No.4 has two small children to be brought up. Her husband does not have a steady income as he is not in a regular job. The statement regarding financial condition of the family also appears to be self-serving. In a society in despair, economics makes and breaks relations. It would be too far fetched to believe that respondent No.4 has volunteered to donate her kidney on account of love and affection only. [14]. Strangely, there is no explanation whatsoever as to why the husband or the children or her other near relatives have not come forward to donate the kidney to the petitioner. The facts and circumstances as indicated above, do not rule out the quid pro quo. [15]. The scope of interference by a writ court in a concurrent finding of fact returned by the two authorities on appreciation of material on record, is very limited. The Appropriate Authority as well as the Appellate Authority, both have strongly doubted the humanitarian relationship projected between the petitioner and respondent No.4. The attributes of the said doubt are as good as a categoric finding of fact as the same are not founded upon mere conjectures or surmises. No interference by this Court, CWP No.5947 of 2009 -: 8 :- in exercise of its jurisdiction under Article 226 of the Constitution of India, is called for. [16]. Dismissed. April 21, 2009. [ Surya Kant ] kadyan Judge