IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 WP(C).No. 26218 of 2011(B) ----------------------------------------- PETITIONER(S): ------------------------ HUMMU KULSU HAMEED, HOSHA HITHILU, MIYAPADAVU P.O., KASARAGOD. BY ADV. SRI.D.SREEKUMAR RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE CHAIRMAN, DISTRICT LEVEL AUTHORISATION COMMITTEE FOR HUMAN ORGAN TRANSPLANTATION, THRISSUR, PIN-680 596. 3. KOCHUTHRESY, KAMBIKKAKOM HOUSE, VALIAVELI P.O., THIRUVANANTHAPURAM-695 021. 4. PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, MULAMKUNNATHUKAVU, THRISSUR-680 596. R1, R2 & R4 BY GOVERNMENT PLEADER SRI. GEORGE VADAKKEL R3 BY ADV. SMT.I.SHEELA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.26218/2011 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER NO.A6-4742/09/MCTCR DTD. 27/08/2011 REJECTING THE PERMISSION BY 2ND RESPONDENT. P2: COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DTD. 5/09/2011. P3: COPY OF THE ORDER REJECTING EXT.P2 APPEAL BY 1ST RESPONDENT DTD. 20/09/2011. P4: COPY OF MEDICAL CERTIFICATE SHOWS THE EXTREME URGENCY FOR KIDNEY TRANSPLANTATION DTD. 3/09/2011. P5: COPY OF THE CERTIFICATE ISSUED BY THE M.P.(LOK SABHA) P.KARUNAKARAN DTD. 18/09/2011. P6: COPY OF THE CERTIFICATE ISSUED BY THE M.L.A.(MANJESWARAM) P.B.ABDUL RAZAK DD. 5/09/2011. P7: COPY OF THE CERTIFICATE ISSUED BY THE PRESIDENT, MEENJA GRAMA PANCHAYAT DTD. 12/09/2011. P8: COPY OF THE JUDGMENT DTD. 12/04/2011 IN WP(C) NO.10928/2011 PASSED BY THIS HONOURABLE COURT. P9: COPY OF THE APPLICATION WITH SUPPORTING DOCUMENTS. P10: COPY OF NEWS REPORT PUBLISHED IN MALAYALA MANORAMA DAILY DTD. 15/09/2011. P11: COPY OF THE MEDICAL CERTIFICATE AND DIAGNOSIS CHART SHOWING THAT HUSBAND OF 3RD RESPONDENT IS SUFFERING LOSS OF REMOVING. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ....................................................... W.P.(C).26218/2011 .............................................. Dated this the 10th day of October, 2011 JUDGMENT Petitioner is a Kidney person whose both Kidneys have failed necessitating transplantation of her Kidney. Therefore, after completing all procedural formalities, Ext.P9 application was submitted to the second respondent in terms of the provisions contained in the Transplantation of Human Organs Act, 1994 and the Rules framed thereunder. This application was accompanied by all the required documents, including affidavits duly sworn to by the third respondent, the donor, her husband as well as her son. Accordingly, the matter was considered by the second respondent. However, the application of the petitioner was rejected by Ext.P1 order and the reasons stated for rejecting the application read as under:- Reasons for rejection Rule 4A subsection 4(ii) (a) and (c) of the Transplantation of Human Organs Act, 1994 not complied with (ie) (a). An explanation of the link between them and the circumstances which led to the offer being W.P.(C).26218/11 2 made. (b). Documentary evidence of the link eg; proof that they have lived together etc. (ie) the receipt claimed acquaintance of four years but the statements of donor's husband and son is contradictory to that husband of donor is not aware of the place of work of his wife. 2. Aggrieved by Ext.P1 order, invoking the appellate power of the first respondent, petitioner filed Ext.P2 appeal. That appeal was also rejected by Ext.P3 order merely stating that the decision of the second respondent is upheld and the appeal is rejected. It is in these circumstances, the writ petition has been filed seeking to quash Exts.P1 and P3 and to direct the respondents to grant necessary permission as sought in Ext.P9 for transplantation of one of the Kidneys of the third respondent to the petitioner. 3. Heard the learned counsel appearing for the petitioner, the learned counsel for the third respondent and the learned Government Pleader appearing for respondents1, 2 and 4. 4. Learned counsel for the third respondent categorically stated that she is still desirous of voluntarily donating one of her Kidneys, W.P.(C).26218/11 3 as mentioned in Ext.P9 application and the accompanying documents and I record the said submission. 5. Coming to the validity of Exts.P1 and P3, the main reason stated in Ext.P3 is the non compliance of the provisions contained in Rule 4A (4) (ii) (a) & (c) of the Transplantation of Human Organs Rules, 1995. Sub clause (a) of Rule 4A (4) (ii) states that when the proposed donor and the recipient are not “near relatives” Authorization Committee shall specifically assess the explanation of the link between the donor and the recipient and the circumstances which led to the offer being made. Sub clause (c) also requires assessment of documentary evidence of the link between the donor and the recipient. Insofar as this clause, is concerned, in Ext.P9 application itself, it is stated that the donor is a family friend of the recipient, the petitioner, and that the donor has come forward to donate one of her Kidneys. This application is accompanied by, among other documents, the affidavits filed by not only the donor but also her husband as well as her major son. These also describe the link between the donor and the recipient and the voluntary nature of the transplantation between the two. In my view, these materials indicate a link between the W.P.(C).26218/11 4 donor and the recipient. In addition to these documents, the petitioner has also produced Exts.P5, P6 and P7 certificates issued by the member of Parliament, MLA and the President of the Grama Panchayat, within whose constituencies the petitioner resides. These certificates also show that the third respondent donor has been looking after the petitioner for the last about five years. No material has been referred to in Ext.P1 order of the second respondent to discredit the aforesaid facts. In such circumstances, it was without any supporting reasons that the second respondent came to the conclusion that clause (a) and (c) referred to above, have not been specified. 6. Apart from the above, other reason stated is an inconsistency in the statement given by the husband and the son of the petitioner about the duration of the acquaintance between the donor and the petitioner. First of all, apart from stating the alleged contradiction, nothing has been mentioned in Ext.P1 to disclose the exact nature of contradiction that is discovered in the statement. That apart, there is other acceptable evidence, namely, Exts.P5, P6 and P7 to infer the acquaintance between the parties and therefore, the alleged contradiction ought not have W.P.(C).26218/11 5 carried much weight in this matter. In that view, I am inclined to think that the view taken by the second respondent as reflected in Ext.P1 is unsustainable. 7. Although Section 17 confers an appellate power on the first respondent and the petitioner had filed Ext.P2 appeal, no reason whatsoever has been assigned by the first respondent in Ext.P3 order rejecting the appeal. For that reason itself, Ext.P3 order is also unsustainable. 8. In view of the above conclusions, I quash Exts.P1 and P3 and direct that the first respondent shall reconsider the appeal filed by the petitioner duly adverting to the contentions and also the materials produced by the petitioner and taking note of the observations herein above. Fresh orders in the matter shall be passed as expeditiously as possible, at any rate, within ten days of production of a copy of this judgment along with a copy of the writ petition. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs