srk 1 wp-1992-11.sxw THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1992 OF 2011 Nandu Bhiva Salve and another. ... Petitioners Versus The Regional Authorization Committee for Appeoval of Unrelated Transplant, through its Chairman, and another. ... Respondents Mr. Uday Warunjikar for the petitioners. Mr. S.R. Nargolkar, Additional Government Pleader for State-respondent Nos. 1,3 and 4. Mr. Gajendrasinh Jadhavrao for respondent No.2. CORAM : MOHIT S. SHAH, C.J. & S.J. VAZIFDAR, J. Thursday, March 17, 2011 P.C. Leave to add Ruby Hall Clinic through Medical Director as respondent No.4. Amendment to be carried out forthwith. 2. Mr. S.R. Nargolkar, learned Additional Government Pleader appears for respondent Nos.1,3 and 4. Mr. Gajendrasinh Jadhavrao, learned counsel appears for respondent No.2. 3. In this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 8th November, 2010 of the Regional Authorization Committee for Approval of Unrelated Transplant B.J. Medical College & Sassoon General Hospitals, Pune under sub-section (5) of srk 2 wp-1992-11.sxw Section 9 of Transplantation of Human Organ Act, 1994, as confirmed by order dated 7th February, 2011 of the Appellate Authority and Secretary, Medical Education and Drugs Department, Government of Maharashtra under Section 17 of the said Act. 4. Petitioner No.1 is the patient who is suffering from Acute Renal Failure, undergoing dialysis treatment and frequency of dialysis is stated to be every alternate day. According to the petitioners, petitioner No.2 is a family friend who decided to offer one of his kidneys to petitioner No.1, as there is no other person in the family of petitioner No.1 who would offer his/her kidney. Accordingly, both the petitioners approached respondent No.4 hospital which is a registered and recognized hospital under the above Act. Respondent No.4, however, submitted negative recommendation on 19th July, 2010 expressing the view that the petitioners were not able to show that petitioner No.2 had offered to donate his kidney by reason of affection and attachment towards petitioner No.1 or for any other special reasons. 5. The matter was then examined by the Authorization Committee- respondent No.1 herein which passed the impugned order dated 8th November, 2010 holding that the petitioners had failed to show that petitioner No.2 had offered his kidney by reason of affection and attachment towards petitioner No. 1 or for any other special reason. 6. Aggrieved by that order, the petitioners appeared before the Appellate Authority under section 17 of the Act. The Appellate Authority confirmed the decision of the Authorization Committee. Hence this petition. 7. The matter was argued for some time on 15th March, 2011. The learned counsel for the petitioners had made an endeavour to persuade us that srk 3 wp-1992-11.sxw the Authorization Committee and the Appellate Authority erred in not holding that petitioner No.2 had offered to donate his kidney by reason of affection and attachment towards petitioner No.1. In view of the material on record, the learned counsel for the petitioners could not persuade us to find any fault with the impugned orders of the respondent-authorities. The learned counsel for the petitioners had, therefore, prayed for adjournment to place additional material on record in support of the petitioners' case that both the petitioners are known to each other very well and that petitioner No.2 has offered to donate his kidney to petitioner No.1 by reason of his affection and attachment towards petitioner No.1. 8. Mr. Uday Warunjikar, learned counsel for the petitioners placed before us the additional affidavits of the two petitioners and also of one Sanjay Maruti Rajage, Ms. Indubai Dashrath Vairath and Mr. Sunil Ramchandra Yaidande alongwith several documents in support of the petitioners' case. The learned counsel for the petitioners further submits that the petitioners had originally made an application which is supported by affidavit or indemnity bond in the format obtained by the petitioners from the Medical Social Worker attached to respondent No.4-hospital. It is submitted that since the petitioners are not very well educated and petitioners did not get the correct legal advice, the petitioners were not aware that heavy burden of proof lies on the proposed donor and donee to satisfy the authority that the donor who is not a blood relative of proposed donee who is offering to donate his kidney by reason of affection and attachment towards the recipient. It is therefore, submitted that now the petitioners have got the correct advice to place the additional material before the respondents-authorities which is already placed in the form of affidavits supported by documents tendered before the Court today. srk 4 wp-1992-11.sxw 9. Mr. Nargolkar, learned Additional Government Pleader for the State and Mr. Jadhavrao, learned counsel for Union of India submit that since the order impugned in this petition did not suffer from legal infirmity, the petition may be dismissed and the petitioners may be directed to make a fresh application before the concerned authorities. 10. In rejoinder, the learned counsel for the petitioners submit that since petitioner No.1 is suffering from Acute Renal Failure to such an extent that he requires dialysis every alternate day requiring the petitioners to undertaking fresh exercise will delay the entire process. 11. Having heard the learned counsel for the parties, we are of the view that having regard to the serious ailment petitioner No.1 is suffering which requires him to undertake dialysis treatment every alternate day, it will be proper if the matter is remitted back to Respondent No.1-Regional Authorization Committee for Approval of Unrelated Transplant which is the competent authority under sub-section (5) of Section 9 of the Transplantation of Human Organ Act, 1994 to consider the petitioners' case afresh in the light of not only the application made by the petitioners earlier and the documents produced earlier but also true copies of the additional affidavits dated 15th March, 2011 as certified by the learned counsel for the petitioners alongwith all the documents produced alongwith said affidavits. 12. In the facts and circumstances of the case, we dispose of this petition with the direction that upon the petitioners placing the additional material as aforesaid before respondent No.1-Committee within one week from today, respondent No.1 Committee shall reconsider the matter and render the decision within two weeks from the date the additional material is placed before respondent No.1-Committee. In case respondent No.1 requires any srk 5 wp-1992-11.sxw clarification from the petitioners or any further supplementary details from the petitioners, the time limit be extended. It is also clarified that it will be open to the petitioners to place any other and further material before respondent No.1- Committee and same shall also be taken into consideration. The writ petition is accordingly disposed of. CHIEF JUSTICE S.J. VAZIFDAR, J.