Kerala High Court
Ayishamol V vs The State Of Kerala on 10 March, 2021
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 10TH DAY OF MARCH 2021/19TH PHALGUNA, 1942
WA.No.474 OF 2021
AGAINST THE JUDGMENT IN WP(C) 161/2021(U) OF HIGH COURT OF
KERALA DATED 22.2.2021
APPELLANTS/PETITIONERS:
1 AYISHAMOL V.
AGED 41 YEARS,W/O. HYDERALI,
PARATHODI HOUSE, KONDOORKARA P.O,
KALLADIPATTHA, PATAMBI,
PALAKKAD DISTRICT, PIN - 679313.
2 AMBILY
AGED 43 YEARS, W/O. SHAJUMON,
RAJEEV COLONY, KOMANA P.O,
AMBALAPUZHA, ALAPPUZHA DISTRICT,
PIN - 688561.
BY ADVS.
SRI.K.V.JAYADEEP MENON
SMT.P.KRISHNAPRIYA
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY,
HEALTH DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
W.A.474/2021
2
2 THE DISTRICT LEVEL AUTHORISATION COMMITTEE
FOR RENAL TRANSPLANTATION,
REPRESENTED BY ITS CHAIRMAN,
THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE,
THRISSUR, MEDICAL COLLEGE P.O,
THRISSUR DISTRICT, PIN - 680596.
3 THE LOCAL LEVEL COMMISSIONER
FOR RENAL TRANSPLANTATION,
REPRESENTED BY ITS CHAIRMAN/MEDICAL DIRECTOR,
WEST FORT HI-TECH HOSPITAL LTD,
TMC 1/1536 OF THRISSUR CORPORATION,
PUMKUNNAM, THRISSUR DISTRICT, PIN - 680002.
4 THE DEPUTY SUPERINTENDENT OF POLICE
ALAPPUZHA DISTRICT, PIN - 688012.
SRI.ARAVIND KUMAR BABU(SR.GOVT.PLEADER)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.474/2021
3
'CR'
JUDGMENT
Dated this the 10th day of March, 2021 S. Manikumar, CJ.
Instant writ appeal is filed challenging the judgment in W.P(C).
No.151 of 2021 dated 22.2.2021.
2. Short facts leading to filing of the writ petition are as follows:
1st Petitioner is a chronic kidney patient and the 2 nd petitioner voluntarily agreed to donate her one organ to her. Thereafter, the petitioners submitted a joint application under the Transplantation of Human Organs and Tissues Act for consideration. But the Local Level Commissioner for Renal Transplantation/3rd respondent herein has called for a police report from the Deputy Superintendent of Police, Alappuzha/4th respondent herein, without submitting the same to the District Level Authorisation Committee for Renal Transplantation/2nd respondent herein, who is the statutory authority under the Act to consider the application. Thereupon the 4 th respondent submitted a report raising a suspicion solely based on the fact that the donor is coming from a poor family and he suspected that she has any other motive, since she has submitted two applications for donating the kidney in recent time. The real fact is that the donor met the 1 st W.A.474/2021 4 petitioner surprisingly, at the hospital in Ernakulam, when she came there for the pre-transplant evaluation for her earlier recipient.
However, due to the mismatching in the diagnostic, the said proposal was rejected and the 2nd petitioner was awaiting the report in the hospital. In that moment, surprisingly she met the first petitioner there and when she came to know about her pathetic condition and ill-health, the second petitioner voluntarily came forward to donate her kidney to the first petitioner, since she has some personal acquaintance and sympathy to her. The family members of the donor have also no objection in the same. Therefore, the present evaluation that the donor has any other motive behind this kidney donation is meaningless and purely based on assumption. It is also a fact that there happened a typographical error while issuing a Certificate by the Local Body.
Unfortunately, the President of the Ongallur Grama Panchayat, while noting his personal acquaintance mistakenly has typewritten as 6 years instead of 6 months. This minor mistake was taken as a reason for rejecting the joint application by the second respondent. Even though they clarified the same by submitting another certificate to the second respondent, it was not considered. The 2 nd respondent rejected the application without considering the materials which are available on record to indicate that there is no commercial interest between the parties. The act of the 2nd respondent is inhuman.W.A.474/2021 5
3. 1st petitioner is now a chronic kidney patient of stage V and is on regular Hemodialysis treatment 3 times in a week and waiting for renal transplantation. As a consequence of the rejection of application for renal transplantation, life of the 1st petitioner is in oscillation. Hence the petitioners seek for a direction to the 2 nd respondent to reconsider the joint application of the petitioner with all documents considering the deteriorating health condition of the 1st petitioner.
4. Before the writ court, petitioner has sought for the following reliefs:
i. Declare that the 3rd respondent has no authority to call for a police verification report in an application submitted before the 2nd respondent, through the 3rd respondent as per Rule 10 of the Transplantation of Human Organs and Tissues Rules, 2014.
ii. Call for the records leading to Exhibit -P8 Rejection of Authorisation Certificate of the 2nd Respondent and quash the same as well as Exhibit -P7 police report by issuing a Writ of Certiorari or any appropriate writ or direction iii. Issue a writ of Mandamus of any other appropriate writ, order or direction directing the 2 nd respondent to reconsider Ext.P1 joint application of the petitioners at the earliest possible time and accord sanction to the petitioners for renal transplantation.
5. After considering the submissions of the writ petitioners and W.A.474/2021 6 the material on record and provisions of Transplantation of Human Organs and Tissues Act, 1994, vide W.P(C). No.161 of 2021 dated 22.2.2021, the writ court ordered thus:
"9. In order to determine the issue raised by the petitioner it is necessary to have a look at the relevant provisions in the Act and Rules. Subsection 3, 5 and 6 of Section 9 of the 1994 Act and , reads as follows:
"9. Restrictions on removal and transplantation of human organs or tissues or both:
xxxx (3) If any donor authorises the removal of any of his human organs or tissues or both 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 or tissue or both shall not be removed and transplanted without the prior approval of the Authorisation Committee.
xxxx (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 applicants have complied with all the requirements of this Act and the rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ or tissue or both.
(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."
10. As per subsection 5 of section 9 the Authorisation Committee is bound to conduct an inquiry and to take a decision on the application for grant of approval for removal W.A.474/2021 7 and transplantation of human organs after holding an inquiry. Such approval can be granted only on being satisfied that the applicants have complied with all the requirements under the Act. Section 9(6) provides that the Authorisation Committee would be free to reject the application for removal, if after the inquiry or after giving an opportunity to the applicants of being heard, it is satisfied that the applicants have not complied with the requirements of the Act and rules. Rule 7(3) of the Rules 2014 provides for the procedure to be followed by the Authorisation Committee in a case where the proposed donor or the recipient are not near relatives. Sub rule 3 of Rule 7 reads as follows:
"(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.g., proof that they have lived together, etc.;
(v) examine old photographs showing the donor and the recipient together;
(vi)evaluate that there is no 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 W.A.474/2021 8 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."
11. The findings of the committee are to be considered in the light of the aforesaid provisions in the Act and Rules. In Ext.P8, the 2nd respondent found as follows:
"There is a disparity of statement given by the donor and her husband before committee and documentary evidence submitted through West Fort Hi-tech Hospital for establishing the link between the donor and recipient. Donor gave false statement about the link between donor and recipient. As per donor's statement on interview with committee members and agreement submitted by donor, she states that her willingness for donating kidney to Mrs.Celin Sara Stephen was rejected due to mismatching during last time check up and when she was at hospital she get acquainted with Mrs.Ayisha Mol who was under treatment at Medical Trust Hospital Ernakulam and due to the affection towards Mrs.Ayisha Mol, she expressed her willingness to donate one of her kidneys to her. Sri.Jishar Parambil, President Ongallur Grama Panchayath certified that proposed donor Smt.Ambily is staying at a quarter under the ownership of recipient Ayisha Mol for around 6 years."W.A.474/2021 9
12. The very purpose behind constitution of Authorisation Committees is to see that the there is no trade or commercial dealings involved in respect of transplantation of human organs. Though the 1st petitioner is in dire need of kidney transplantation, this Court cannot permit a transplantation from a person, whose bonafides are suspected by the Committee. The certificate of the President of the Panchayat alone, was not the material before the Committee for coming to the conclusion to reject Authorisation Certificate. The statement made by the donor as well as her husband and the donor's attempts for donating kidney for different persons in a short interval was also taken note of the Committee.
In the above circumstances, I find that this Court would not be justified in interfering with the findings of the Committee, which has on the basis of materials before it, found it not proper to issue a certificate.
Accordingly, the writ petition is dismissed."
6. Being aggrieved, instant appeal is filed, on the following grounds:
A. The findings of 2nd respondent committee is soley based on innocus disparities and hence, the Hon'ble Court failed to interfere with unsatisfactory and untenable reasons canvassed by the 2nd respondent B. The 2nd respondent failed to consider the application afresh in the light of new certificate issued by the Ongallur Panchayath President wherein an honest mistake in the W.A.474/2021 10 previous certificate was rectified. The finding of the 2 nd respondent was dwelled upon an honest mistake made by the Ongallur Panchayath President, therefore, the 2 nd respondent ought to have considered the new certificate before passing the final decision C. The Hon'ble Court failed to take note of the pertinent fact that there was no substantial finding in the inquiry or in the subsequent report that petitioners were engaged in a commercial trade of human organ. The report and finding are only based on conjecture and surmises and hence, the non- interference with the findings of the 2 nd respondent is highly disagreeable.
D. The finding of the 2nd respondent that the petitioners failed to establish the link as against each other due to inadvertent contradictions reprehensible. Moreover, every inadvertent contradiction does not amount to false statements so as to take away the lawful rights of the appellants and the Hon'ble Court failed to appreciate the same.
E. The very act of 3rd respondent seeking report from the 4th respondent by itself non sustainable in law. Hence, the report of the 4th respondent sought by abruptly dispensing with the procedures of law cannot be relied upon by the 2 nd respondent.
F. The learned Single Bench failed to consider the act of the 2nd respondent rejecting the joint application of appellants on the finding that the donor comes from a W.A.474/2021 11 financially poor background is condemnable when there is no apparent finding that the recipient is not poor. Berating the wish and choice of a voluntary donor soley on the basis of her financial background amounts to a wanton assault to her dignity and intergrity protected by the constitution dia.
7. Affidavit dated 9.10.2020 submitted by the 2nd petitioner to the Local Level Commissioner for Renal Transplantation/3rd respondent (Ext.P3) reads thus:
"I, Ambilly, aged 42 years, W/o. Shajumon, residing at Rajiv Colony, Ambalapuzha Panchayath, Ambalapuzha Village, Ambalapuzha Taluk, Ambalapuzha District, Komana P.O., Pin 688 561, hereby submits this affidavit. My family is having a close relation with Smt. Selin Zara Stephen since the last 4 years. Smt. Selin Zara Stephen is a person who is suffering from Chronic Kidney Disease. The doctors who were consulting her advised to undergo for kidney transplantation. Relatives of Smt. Selin Zara Stephen were unable to donate their kidney, so I voluntarily went forward to donate one of my kidney for her with the consent of my husband and children without any intention or motive to accept any kind of remuneration from her. And as a part of kidney transplantation I had undergone several tests and rules prescribed by the authority. The Authorization Committee for human Transplantation has sanctioned our Organ transplantation. But at the end when Donar Specific Antibody (DSA) test was conducted it was found that the count of DSA in my body was highly positive, so I was not able to donate my Kidney.W.A.474/2021 12
As a part of Kidney Transplantation I used to go with Smt. Selin Zara Stephen for further Check-ups and also we were admitted at Medical Trust Hospital, since she was consulting at Medical trust Hospital. At that time I met with another person from Patambi named Ayishamol W/o. Hyderali residing at Parathodi House, who was suffering from the same disease, thus we became friends. When I failed to undergo for Kidney Transplantation with Smt. Selin Zara Stephen, I had sympathy over Ayishamol, who is at a critical stage, made me to voluntarily decide to donate one of my kidney for her. It was my voluntary decision to donate one of my kidney for her with the consent from my husband and children and also there is no other motive or intention to receive any kind of remuneration or compensation from her.
As a part of this, we went to West Fort Hi- Tech Hospital, Thrissur for further checkups, And also we had submitted all relevant documents required for transplantation before the District Level Authorization Committee for Renal Transplantation at Medical College, Thrissur. The Dysp. of Ambalapuzha refused my Police Clearance Certificate pointing that my intention behind Kidney Transplantation is not convincible for him and he marked it as SHO. But, I hereby submit that I only have an intention to save a person from death, who is personally known to me and who needs an immediate cause of action which may save her life. And also I hereby submit that there is no intention to receive any kind of remuneration or any other compensation, unless a sympathy.W.A.474/2021 13
Now, the health condition of Ayishamol is getting worst day by day. She cannot survive for a long with the help of dialysis. So please attach the Police Certification Certificate numbered 2170/OCT-16/ASD/20 along with this Affidavit and also I kindly requesting for the approval for Kidney Transplantation with Ayishamol.
I do hereby declare that all the facts said above are true and sincere to the best of my knowledge and belief.
Donor Ambily W/o. Shajumon, Rajiv Colony, Komana P.O., Pin 688 561 Ambalapuzha Village, Ambalapuzha Taluk, Ambalapuzha District,
8. Exhibit P4 dated 17.10.2020 is the Certificate of Medicl Fitness issued by the Consultant Nephrologist, West Fort Hi Tech Hospital, which reads thus:
"FORM 4 FOR CERTIFICATION OF MEDICAL FITNESS OF LIVING DONOR To be given by the Registered Medical Practitioner, [Refer proviso to rule 5(3) (b)] I Dr. T.T. Paul possessing qualification of MD. MNAMS (Nephro) Registered as medical practitioner at serial No.9637 by the TCMC Medical Council, certify that I have examined Smt. Ambily, W/o, Shri. Shaji, aged 43 years, who has given W.A.474/2021 14 informed consent for donation of her Kidney (Name of the organ) to Smt. Ayshamol, who is a 'near relative' of the donor/other than near relative of the donor and has been approved by the competent authorization committee (as the case may be ) and it is certified that the said donor is in proper state of health, not mentally challenged, and is medically fit to be procedure of the procedure of organ or tissue removal.
Place: Thrissur Sd/-
Date: 17.10.2020 Dr. T.T. Paul
Consultant Nephrologist
Reg. No.9637 (TCMC)
West Fort Hi-Tech Hospital, Thrissur."
9. Exhibit P5 dated 23.7.2020 is the certificate issued by Ambalapuzha South Grama Panchayat, which reads thus:
"AMBALAPUZHA SOUTH GRAMA PANCHAYATH Dated: 23.07.2020 CERTIFICATE I hereby submits that, I directly know Smt. Ambily W/o. Shaji who are permanently residing at 14 th Ward of Rajiv Colony in Ambalapuzha South Grama Panchayath. She is voluntarily willing and her family also gave consent for donating one of her kidneys to Smt.Ayishamol residing at Parathodi House, Kondoorkara P.O., Palakkad District, who is a Chronic Kidney patient. I hereby testify that Smt. Ambily had voluntarily decided to donate one of her kidneys to Smt. Ayishamol.
This certificate is issued only for submitting at West Fort Hi- Tech Hospital Ltd.W.A.474/2021 15
Yours faithfully, G. Venulal President Ambalapuzha South Grama Panchayath Phone; 9496043644 "
10. Exhibit P6 is the certificate issued by Ongaloor Grama Panchayat, which reads thus:
"ONGALOOR GRAMA PANCHAYATH CERTIFICATE 24.7.2020 Ayishamol v. who is permanently residing at Parathodi house at 19th ward of Ongaloor 2 Village of Patambi Taluk, Palakad District is directly known to me and also she is a person who is suffering from Chronic Kidney disease. Shri. Shaji and his family are residing at the quarters for the last 6 years which is owned by Smt. Ayishamol and her family. Smt. Ambily, W/o. Shaji has voluntarily decided to donate one of her kidneys to Smt. Ayishamol. I hereby testify that Smt. Ambili has taken decision voluntarily and willing to satisfy all the rules and regulations under Human Organs and Tissues Act.
This certificate is issued only for submitting at West Fort Hi- Tech Hospital, Thrissur."
11. Exhibit P7 letter dated 24.9.2020 of the Dy. Superintendent of Police, Alappuzha, addressed to the Consultant Nephrologist, West Fort Hi-Tech Hospital Ltd., Thrissur, reads thus:
W.A.474/2021 16"Office of the Dy Supdt. of Police, Alappuzha Dtd. 24.09.2020 Phone: 0477 2237388 Email: [email protected] No.2170/OTC-16/ASD/20 From Dy. Supdt. of Police, Alappuzha To The Consultant Nephrologist, Went Fort Hi-Tech Hospital Ltd, Punkunnanm, Thrissur PIN 680 002.
Sir, Sub: Kidney Transplantation Report forwarding of reg.
Ref: 1. That office letter dated 08.07.2020
2. Report submitted by the SHO, Ambalapuzha PS. Attention is invited to the subject and references cited. A letter was received this office vide reference 1 in connection with the kidney donation by Mrs. Ambily, Rajeev Colony, Komana, Ambalapuzha to Mrs. Ayishamol V. Parathodi House, Pattambi, Palakkad. I have been requested in the letter to issue a certificate of altruism to be produced before the Zonal Authorization Committee for Renal transplantation.
In connection with the issuance of certificate, the letter has been forwarded to the SHO, Ambalapuzha Police Station for enquiry and report. After conducting enquiry and recording the statement of Mrs.Ambily, the kidney donor, W.A.474/2021 17 her husband and children, the SHO produced a report to this office vide reference 2. It is stated in the report that Mrs Ambily W/o Shaji, age 42, residing at Rajeev Colony, Ambalapuzha South P/W 14, Alappuzha had submitted an application for donating one of her kidneys to one Mrs. Celin Sara Stephen on January 2020 and a certificate was issued in this regard. When recorded the statement of Mrs Ambly, she stated that her willingness for donating kidney to Mrs Celin Sara Stephen, was rejected due to the mismatching of kidney during last time check up and when she was at hospital she get acquainted with Mrs. Ayshamol who was under treatment there for kidney disease and due to the affection towards Mrs. Ayishamol, she expressed her willingness to donate one of her kidneys to her.
It is also reported that the financial back ground of Mrs Ambily, the kidney donor, and her family is poor. Since she have submitted two applications for donating kidney in the recent time, SHO suspects that she has any other motive behind this kidney donation and hence the SHO did not recommend the transplantation request.
So I am forwarding this report supporting the statements in the reports of SHO Ambalapuzha Police Station for further necessary action.
Yours faithfully, N.R.Jayaraj, Dy. Supdt. Of Police,
12. Ext.P8 Authorisation Certificate dated 9.11.2020, issued by the Chairman, Authorisation Committee reads thus:
"WESTFORT HI-TECH HOSPITAL THRISSUR Details of Donor Ambily 42 yrs W/o Shaji Rajeev Colony, Komana PO, Ambalappuzha Alappuzha Details of Recipient W.A.474/2021 18 Ayisha Mol V., 42yrs W/o Hyderali Parathodi House Pattambi Palakkad.
Relation of donor with Recipient: Unrelated Permission is not granted for the following reasons Altruism regarding the transplantation is not proved before the committee Sri. NR Jayaraj, DYSP, Alappuzha reported in his letter No 2170/OTC 16/A50/20 dated 24/09/2020 that the financial background of Mrs Ambily, the kidney donor and her family is poor and she have submitted two applications for donating kidney in the recent time. In connection with issuance of certificate a letter has been forwarded to SHO, Ambalappuzha police station for enquiry and report. Based on the enquiry SHO suspect that she has any other motive behind this kidney donation and hence SHO did not recommend the transplantation request.
There is a disparity of statement given by donor and her husband before committee and documentary evidence submitted through West Fort Hi tech Hospital for establishing the link between the donor and recipient. Donor gave false statement about the link between donor and paint. As per donor's statement on interview with committee members and agreement submitted by donor, she states that her willingness for donating kidney to Mrs Celin Sara Stephen was rejected due to mismatching during last time check up and when she was at hospital she get acquainted with Mrs Ayisha Mol who was under treatment at Medical Trust Hospital Ernakulam and due to the affection towards Mrs Ayisha Mol, she expressed her willingness to donate one of her kidneys to her. Sri Jishar Parambil, President Ongallur Grama Panchayath certified that proposed donor Smt Ambily is staying at a quarter under the ownership of recipient Ayisha Mol for around 6 Years.
Rule 7 Sub Rule (3)(I) to (VI) is not complied with the transplantation of Human Organs and Tissues Act 1994 and the transplantation of Human Organs and Tissues Rule 2014. Hence the committee unanimously rejected the case.
Dr.M.A.Andrews Principal, Govt. Med. College Thrissur (Chairman) W.A.474/2021 19 Date: 09/11/2020 MG Kavu, Thrissur."
13. Ext.P10 Medical certificate dated 12.12.2020 issued by Department of Nephrology, West Fort Hi-Tech Hospital Ltd., Thrissur reads thus:
TO WHOM SO EVER IT MAY CONCERN This is to certity that. Mrs. Ayishamol V, 41 yrs, Female, Hospital No:16-11-11, Parathothdi House, Kondoorkara PO. Kalladipatta, Pattambi, Palakkad 679 313, a known case of Chronic Kidney Disease (CKD) Stage-5. She is on regular Hemodialysis treatment three times in a week and awaiting for renal transplantation.
One of her friends Mrs Ambily, 43 yrs., Female, Hospital No.15- 12-21, come forward to done one her kidneys voluntarily. The recipient and donor completed their pre transplant evaluation and found fit for surgery.
We advised her to undergo renal transplant as quickly possible considering it is an emergency situation since it is the best method of Renal Replacement Therapy considering her age, clinical status and social responsibilities.
Dr.T.T. Paul MD.MNAMS (Nephro) Chief Consultant Nephrologist and Transplant Physician"
14. Section 9 of the Transplantation of Human Organs and Tissues Act, 1994 deals with restrictions on removal and transplantation of human organs or tissues or both, which is extracted hereunder:
W.A.474/2021 20"9. Restrictions on removal and transplantation of [human organs or tissues or both].-
(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 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.
15. In exercise of the powers conferred by Section 24 of the Transplantation of Human Organs Act, 1994 (42 of 1994) and in supersession of the Transplantation of Human Organs Rules, 1995, except as respects things done or omitted to be done before such supersession, Transplantation of Human Organs and Tissues Rules, 2014 have been framed by the Central Government. Rule 7 of the Transplantation of Human Organs and Tissues Rules, 2014 deals with Authorisation Committee, which reads thus:
"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;W.A.474/2021 21
(iii) examine the reasons why the donor wishes to donate;
(iv) examine the documentary evidence of the link, e.g. proof that they have lived together, etc.;
(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."
16. Before the writ court on 21.1.2021, the 2 nd respondent has filed a statement which reads thus:
"2. It is submitted that the application submitted by petitioners was considered by the District Level Authorization Committee held on 9.11.2020 and permission is not granted due to the following reason:W.A.474/2021 22
Altruism regarding the transplantation is not proved before the committee.
3. Sri. N.R. Jayaraj, Dy.SP, Alappuzha reported in his letter No.2170/OTC-16/ASD/20 dated 24.9.2020 that the financial backgraound of Mrs. Ambily, the kidney doner and her family is poor and she have submitted two applications for donating kidney in the recent time. In connection with issuance of certificate a letter has been forwarded to SHO, Ambalapuzha Police Station for enquiry and report. Based on the enquiry, SHO suspect that she has some other motive behind this kidney donation and hence SHO did not recommend the transplantation request.
4. It is submitted that there is a disparity of statement given by donor and her husband before committee and documentary evidence submitted through West Fort Hi-tech hospital for establishing the link between the donor and recipient. Donor gave false statement about the link between donor and recipient. As per donor's statement on review with committee members and agreement submitted by donor, she states that her willingness for donating kidney to Mrs. Cellin Sara Stephen was rejected due to mismatching during last time check up and when she was at hospital she got acquainted with Mrs. Ayisha Mol who was under treatment at Medical Trust Hospital Ernakulam and due to the affection towards Mrs.Aisha Mol, she expressed her willingness to donate one of her kidneys to Mrs. Ayisha Mol. Sri Jishar Parambil, President Ongallur Grama Panchayath certified that proposed donor Smt. Ambili is staying at a quarter under the ownership of recipient Ayisha Mol for around 6 years.W.A.474/2021 23
5. As per the clause in Rule 7 of Transplantation of Human Organs Act 1994 Authorization Committee shall prepare an explanation of the link between Donor and Recipient and the circumstances which led to the offer being made. Donor and Recipient's representatives not only has to explain satisfactorily the link between them but also explain the reasons why the Donor wishes to donate before the committee. So being not convinced of the reasons the committee unanimously rejected the case.
6. It is submitted that Rule 7 Sub Rule (3)(1) to (VI) of the Transplantation of Human Organs and Tissues Act 1994 and the transplantation of Human Organs and Tissues Rule 2014 is not complied with in this case. It is further submitted that, clarified certificate from the President of Ongallur Grama Panchayath was not submitted to the District Level Authorization Committee for proving personal acquaintance between donor and recipient as stated by the petitioner."
17. Rule 7 of the Transplantation of Human Organs and Tissues Rules, 2014 confers power coupled with duty on the Authorisation Committee to consider the application. Discretion is conferred on the Authorisation Committee to consider the parameters in terms of the statutory provisions and the rules made thereunder, in particular Rule 7 of Transplantation of Human Organs and Tissues Rules, 2014.
18. Let us consider few decisions as to how discretion has to be exercised. In M/s.Supreme Sizing Industries v. The Authorised Officer, W.A.474/2021 24 (W.A. No.33557 of 2017), the Madras High Court, on 21.12.2017, held thus:
"13. xxxx xxxx xxxx
(i). Reiterating as to how the discretionary power has to be exercised, the Hon'ble Supreme Court in Sant Raj and another v. O.P.Singla and others reported in (1985)2 SCC 349, held that "whenever, it is said that something has to be done, within the discretion of the authority, then that something has to be done, according to the rules of reason and justice and not according to private opinion, according to law and not humour. It is to be not arbitrary, vague and fanciful but legal and regular and it must be exercised within the limit to which an honest man to the discharge of his office ought to find himself. Discretion means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful.
(ii) In Fasih Chaudhary v. Director General, Doordarshan and others reported in 1989 1 SCC 89, the Hon'ble Supreme Court held that exercise of discretion should be legitimate, fair and without any aversion, malice or affection. Nothing should be done which may give the impression of favouritism or nepotism.
While fair play in action in such matters is an essential requirement, free play in the joints is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere as the present one.
(iii) In Shiv Sagar Tiwari v. Union of India and others reported in 1997 1 SCC 444 the Hon'ble Supreme Court held that the discretionary power has to be exercised to advance the performance, to subserve for which the power exists.
W.A.474/2021 25(iv) In A.P. Aggarwal v. Govt. of NCT of Delhi reported in (2000) 1 SCC 600, the Hon'ble Supreme Court held as under:
"The conferment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual."
(v) In Union of India v. Kuldeep Singh reported in (2004) 2 SCC 590, the Supreme Court while testing the correctness of the judgment rendered under the Narcotic Drugs and Psychotropic Substances Act, 1985, and the discretion to be exercised by the High Court, explained the principles governing the mode of exercise of the discretionary power for public functionaries, as follows:
"20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law.W.A.474/2021 26
21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons."
19. Now, let us consider few decisions on the role of Authorization Committee:
"(i) In Nagendra Mohan Patnaik and Ors. v. The Government of A.P. and Ors. 1997 (1) ALT 504], the High Court of Andhra Pradesh held thus:
"11. It will be only reiterating the obvious that the duty assigned to the Authorisation Committee is to decide upon the application, jointly made by the recipient and the donor, either to grant approval for the removal and transplantation of human organ or to reject the same for reasons to be recorded in writing, as severe consequences would follow on either side i.e., in case of approval of the removal and transplantation of the human organ on authorisation by the donor for any reason other than affection or attachment towards the recipient or for any other special reasons, it would be unjust to the donor and in case such conditions are existing and the application is rejected, the recipient is denied what legally is needed for therapeutic purposes. The Authorisation Committee is required to hold an inquiry to satisfy itself that the applicants have complied with all W.A.474/2021 27 the requirements of the Act and the rules made thereunder and also in case it decides to reject the application, to record the reasons in writing for the same. These leave no manner of doubt that Authorisation Committee is a quasi-judicial authority and it is thus required to follow such procedures which are reasonable and in accordance with the principles of natural justice. Our attention has been drawn to the absence of any mechanism or agency, which Authorisation Committee may use for ascertaining, if necessary by investigation, the genuineness of the application before it and it is urged that in the absence of guidelines, how the Authorisation Committee shall determine in the course of the inquiry, that the applicants have complied with all the requirements of the Act and the rules made thereunder or not; the Authorisation Committee is not in a position to do anything except to know from the recipient and the donor about their complying with all the requirements of the Act and the rules made thereunder. We, however, do not see any reason to hold that Authorisation Committee is left without any guidelines in deciding whether to approve the removal and transplantation of the organ or to reject the application. There are quite a few express guidelines in the Act itself and there are other intrinsic guidelines which supplement the express guidelines for the inquiry by the Authorisation Committee. In natural sequence of events the donor, who authorises removal of the organ, will always be in a position to explain that he had decided to authorise the removal of the organ in full consciousness and after being explained the full consequences of the removal of organ by the doctor and that authorisation was decided in the presence of his/her spouse, if living and in the presence of daughter or son or sister or brother in the same order and in the presence of mother or father in case of unmarried persons and W.A.474/2021 28 that he had authorised the removal of the organ for its transplantation to the recipient for reasons of affection or attachment towards him/her or for any other special reasons. He/she shall always be required to show that the authorisation for the removal of organ was not induced by any cause other than affection or attachment towards the recipient or for any other special reasons. It will be possible, when the donor and the recipient are examined, in course of the inquiry, by the Authorisation Committee, to notice the presence of suspicious circumstances and it would only be reasonable to hold that unless all suspicious circumstances are removed authorisation may not be found to have been done voluntarily and only because the donor was guided by reason of affection or attachment towards the recipient or for any other special reasons. Neither the donor nor the recipient is denied the right of being heard and if their application is rejected for reasons to be recorded in writing, they are informed why their application has not been approved. The order of the Authorisation Committee under Sub-section (6) of Section 9 is made appealable Under Section 17 of the Act. The applicants i.e., the donor and the recipient, thus are given the opportunity to question the correctness of the decision of the Authorisation Committee and it needs no reiteration that the appellate authority shall have the power to convert the rejection of the application into approval, if it finds that the applicants have complied with all the requirements of the Act and the rules made thereunder. In any event all such orders shall be subject to judicial review and an application, subject to the limitations under which the power is exercised by the Court under Article 226 of the Constitution of India, shall be liable (sic. shall lie).
13. There is some contention before us, however, that since the W.A.474/2021 29 Authorisation Committee has to perform a quasi-judicial function, without there being any person having such equipment which someone who is required to act judicially possesses, its constitution suffers the basic infirmity of being constituted of persons who do not possess any legal knowledge. This submission, in our view, is based on a clear misapprehension of the legal position that only such authorities which are created in lieu of Court of law are required to have persons who possess qualifications, if not equal, at least nearer to the qualifications for the judicial officers. It has been pointed out many a time by the Courts that matters which require administrative determination should better be left for such persons to decide, who are acquainted with the subject concerned. True, it is not shown anywhere under the Act or the rules made thereunder as to who qualify to be the members of the Authorisation Committee. Since the power to appoint the Authorisation Committee is given to the highest Executive of the State i.e., the Government of the State, it can be safely presumed that it shall not bring into Committee persons who do not have even the basic comprehension of the role which they are required to play. It is good always that in matters of determination of issues like the Authorisation Committee is expected to decide, Courts of law are not involved at the first instance as Courts too will depend upon the expert evidence as to the need of a transplant and a doctor as contemplated under the Act is best suited for deciding whether removal could be approved or not. Courts' competence in this regard shall not be assured and clear.
14. In order, however, to create confidence that the Authorisation Committee shall take necessary precautions which a quasi-judicial authority is required to take, one can trust the Government of the State, while constituting the Authorisation W.A.474/2021 30 Committee, to include one such person who would guide the Committee to inquire into such necessary aspects of the matter with regard to the application before it. Before we part with the judgment, we are persuaded to state that, since the Authorisation Committee is one which is also required to consider whether removal of the organ is arranged on the basis of some sort of commercial transaction or for reasons which do not satisfy the conditions of authorisation as contemplated under the Act and the rules made thereunder, it (Authorisation Committee) shall have such powers as are ancillary or residuary to the powers to hold inquiry and to seek for the said purpose, assistance from any employee/servant of the Government of the State/any other agency employed by the Government of the State."
(ii) In Balbir Singh v. The Authorisation Committee and Ors. [AIR 2004 Delhi 413], the High Court of Delhi held thus:
"12. A conjoint reading of the above provisions shows that Section 3 of the Act provides for authorization by a person, before his death for removal of any human organ of his body for therapeutic purposes, subject to such conditions as may be prescribed. Sub-Section (4) of Section 3 of the Act provides for removal of organ only by Registered Medical Practitioner upon such authorization. Sub-Section (1) of Section 9 of the Act provides that 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. "Near relative" as noticed earlier has been defined as spouse, son, daughter, father, mother, brother or sister. Sub-Section (3) of Section 9 of the Act provides for permitting transplantation in cases where the recipient is not a near relative, but the donor by reason by affection or attachment or other special reasons is donating the W.A.474/2021 31 organ for transplantation. Such transplantations cannot be done without approval of the Authorization Committee constituted under Sub-Section (4) of Section 9 of the Act. Section 24 of the Act empowered the Central Government to make Rules for carrying out the purposes of the Act. Clause (a) of Sub-Section (2) of Section 24 of the Act prescribes the manner in which and the conditions subject to which any donor may authorise removal, before his death, of any human organ of his body under Sub-Section (1) of Section 3. This Section further prescribes the form and the manner in which a brain-stem death is to be certified etc. and the manner of removal of organ from unclaimed dead body etc. Section 4 of the Act prohibits authorization for removal, of organs, being given from the body of deceased persons, where there are reasons to believe that an inquest may be required. Section 5 of the Act provides for authorization for removal of organs in case of unclaimed bodies in hospitals etc. Section 6 deals with the removal of organs from bodies sent for postmortem where organs are not required for purpose for which the body has been sent for post-mortem etc.
14. Under the scheme of the Act, the cases which are required to be referred to the Authorization Committee for approval are those which are not cases of donation from a "near relative". The Authorization Committee is to approve such cases only if it is satisfied as to the existence of affection or attachment between the donor or recipient or any other special reasons. In such cases, the question of tissue matching and of the acceptability of the organ being transplanted is left to be determined by scientific and medical tests to be carried out. In other words, once the Authorization Committee is satisfied as to the reasons for donation, falling within Sub-Section (3) of Section 9, the other aspect of tissue matching for acceptability of the organ are left to W.A.474/2021 32 Medical Practitioners. However, in the case of a "near relative", unlike that of a non "near relative", the very factum of relationship is sought to be established by the various tests prescribed under Sub-Clause (c) of Rule 4 of the Rules.
21. Each society and community has to develop and devise its principles and guidelines as per the prevalent norms of the Society for organ donation and transplantation. One norm which can be said to be all pervasive across the world is that trading and commercialization and exploitation in Organ Transplantation is discouraged and avoided. The donor can either be a relative other than a "near relative" or even an outsider, for which approval for transplantation is required to be given by the Authorization Committee under Section 9 for reason of affection, or attachment or other special reasons. The Donors falling in either class deserve protection and priority in treatment should the need arise for them. Similarly these benefits could be extended to family members of deceased who authorized donation of organs."
(iii) In Kuldeep Singh and Ors. v. State of Tamil Nadu and Ors. [(2005) 11 SCC 122], the Hon'ble Supreme Court held thus:
"12. Where the donor is not "near relative" as defined under the Act, the situation is covered by Sub-Section (3) of Section 9. As the Form I in terms of Rule 3 itself shows the same has to be filed in both the cases where the donor is a near relative and where he is not, so far as the recipient is concerned. In case the donor is not a near relative the requirement is that he must establish that removal of the organ was being authorized for transplantation into the body of the recipient because of affection or attachment or for any special reasons to make donation of his organ. As the W.A.474/2021 33 purpose of enactment of the Statute itself shows, there cannot be any commercial element involved in the donation. The object of the Statute is crystal clear that it intends to prevent commercial dealings in human organs. The Authorisation Committee is, therefore, required to satisfy that the real purpose of the donor authorizing removal of the organ is by reason of affection or attachment towards the recipient or for any other special reason. Such special reasons can by no stretch of imagination encompass commercial elements. Above being the intent, the inevitable conclusion is that the Authorisation Committees of the State to which the donor and the donee belong have to take the exercise to find out whether approval is to be accorded. Such Committee shall be in a better position to ascertain the true intent and the purpose for the authorisation to remove the organ and whether any commercial element is involved or not. They would be in a better position to lift the veil of projected affection or attachment and the so called special reasons and focus on the true intent. The burden is on the applicants to establish the real intent by placing relevant materials for consideration of the Authorisation Committee. Whether there exists any affection or attachment or special reason is within the special knowledge of the applicants, and a heavy burden lies on them to establish it. Several relevant factors like relationship if any (need not be near relationship for which different considerations have been provided for), period of acquaintance, degree of association, reciprocity of feelings, gratitude and similar human factors and bonds can throw light on the issue. It is always open to the Authorisation Committee considering the application to seek information/materials from Authorisation Committees of other W.A.474/2021 34 States/State Governments as the case may be for effective decision in the matter. In case any State is not covered by the operation of the Act or the Rules, the operative executive instructions/Government orders will hold the field. As the object is to find out the true intent behind the donor's willingness to donate the organ, it would not be in line with the legislative intent to require the Authorisation Committee of the State where the recipient is undergoing medical treatment to decide the issue whether approval is to be accorded. Form I in terms requires the applicants to indicate the residential details. This indication is required to prima facie determine as to which is the appropriate Authorisation Committee. In the instant case, therefore, it was the Authorisation Committee of the State of Punjab which is required to examine the claim of the petitioners.
13. We may note here that there is a provision for appeal in terms of Section 17 of the Act in case of refusal by the Authorisation Committee. But taking into account the urgency involved and the grey area projected by the two States regarding the proper Authorisation Committee, we have entertained the Writ Petition and decided the issues involved. In the normal course, it would be for the Appellate Authority constituted in terms of Section 17 who has to consider the appeal to be preferred by the aggrieved party.
14. Since the object of the Statute is to rule out commercial dealings, it would be desirable to require the donor and recipient to give details of their financial positions and vocations. It would be appropriate for the Legislature to accordingly amend the Rules and the Form I, so that W.A.474/2021 35 requirement for disclosing incomes and vocations for some previous financial years (say 3 years) gets statutorily incorporated. This would help the Authorisation Committees to assess whether any commercial dealing is involved or not. Until Legislative steps are taken, all Authorisation Committees shall, in terms of this judgment require the applicants to furnish their income particulars for the previous three financial years and the vocations. The petitioners are directed to furnish the aforesaid details within ten days from to-day before the Authorisation Committee.
15. We find that in certain States administrative officials are nominated as members of the Authorisation Committee. That appears to be the proper course as the Authorisation Committee has to decide both on the medical angle regarding need for transplantation, and the existence or otherwise of the essential ingredients to be established under Sub-section (3) of Section 9 of the Act. Presence of an administrative official in the Authorisation Committee would be helpful in deciding the issues more effectively.
16. Though we are told that the present Authorisation Committee of the State of Punjab consists of only doctors, in view of urgency we direct the existing Committee to examine the matter without awaiting the induction of an administrative official. We request the Committee to examine the application of the petitioners on the basis of materials to be placed by the petitioners and to decide whether the applicants have established the requirements necessary for according approval. If it accords approval, the same may be transmitted to the State of Tamil Nadu immediately so that the Authorisation Committee W.A.474/2021 36 of the said State can also consider on the therapeutic angles. In case approval is not accorded, it shall be open to the applicants to avail such remedies as are available in law. We make it clear that we have not expressed any opinion on the issue as to whether approval is to be accorded or not as the same is to be considered by the Authorisation Committee.
17. Before parting with the case, we may indicate that with a view to effectuate the laudable object of the Act, it would be appropriate for States which have not yet adopted the Act, to do so immediately."
(iv) In Parveen Begum and Ors. v. Appellate Authority and Ors. 189 (2012) DLT 427, a Hon'ble Division Bench of the Delhi High Court considering the provisions of the Transplantation of Human Organ & Tissues Act, 1994, held as under:
"28. This Court, while exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India, does not sit as an appellate forum to examine or reassess the case on merits, after a statutory authority has formulated its view, upon examination of the merits of the case. This Court is primarily concerned with the compliance of the procedural aspects, and the application of the correct principles laid down statutorily, or otherwise, in the decision making process of the concerned authority. This Court would interfere in an appropriate case, where the Government or a statutory authority or a public authority has failed to exercise, or has wrongly exercised the discretion conferred upon it under the statutory rule or a policy decision of the Government, or has exercised such discretion malafide or on irrelevant considerations, or by ignoring the relevant considerations and materials, or in such a manner as to frustrate the object W.A.474/2021 37 conferring such discretion, or the policy, for implementation for which such discretion has been conferred. (see Comptroller and Auditor General of India Gian Prakash, New Delhi & Anr. v. K.S. Jagannathan & Anr., (1986) 2 SCC 679, para 20).
51. 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 9(IA). 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 Authorization Committee to ascertain and evaluate, by applying the guidelines/yardsticks and tests provided in Rule 4A(4) and 6F(d) 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. The Authorization Committee is required to enquire whether the donor is offering his organ/tissue by reason of affection or attachment towards the recipient or for any other special reasons. 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."
"83. In the light of the aforesaid facts, circumstances, discussion and the law, in my view, the impugned decision of W.A.474/2021 38 the Authorization Committee as well as the appellate authority are wholly unsustainable and, accordingly, they are quashed. 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.
84. 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.
85. In the present case, the petitioner No. 1 has been in need of a kidney replacement since June, 2011. The joint application for seeking the approval of the Authorisation Committee was submitted by the petitioners in August, 2011. Over this period of time, the condition of the petitioner No. 1 has only deteriorated and she requires dialysis thrice a week. Even from the interviews of petitioner No. 1 conducted on different dates, her deteriorating condition of her health is evident.
86. 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. 2 to petitioner No. 1 in terms of their application. The formal approval should be granted within W.A.474/2021 39 two days, failing which it shall be deemed that the said formal approval stands granted."
20. From the material on record, it could be deduced that the writ petitioners have produced the required application in Form 3 and other documents. Though an enquiry has been conducted by SHO, Ambalapuzha, he has raised suspicion over the second writ petitioner, coming forward to offer her kidney to the first writ petitioner. The Deputy Superintendent of PoliceAlappuzha in Ext.P7 dated 24.9.2020 has forwarded the report to the Consultant Nephrologist, West Fort Hi-
Tech Hospital, Thrissur. However, perusal of the authorisation certificate Ext.P8 dated 9.11.2020 issued by the Chairman of the Authorisation Committee does not disclose that the said authority has adverted to the parameters contained in Sub Rule 3 of Rule 7 of Transplantation of Human Organs and Tissues Rules, 2014, in detail.
Besides it is the contention of the writ petitioner that there was a mistake in Ext.P6 certificate dated 24.7.2020 issued by Ongaloor Panchayat that instead of six months it was erroneously stated as six years. The said Panchayat has categorically stated that the second petitioner was residing at the quarters owned by the first petitioner and that the former has come forward voluntarily to donate one kidney to the first petitioner. The authorisation committee under the Transplantation W.A.474/2021 40 of Human Organs and Tissues Act, 1994 and Transplantation of Human Organs and Tissues Rules, 2014 is mandated to (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.g. proof that they have lived together, etc.; (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.
21. Authorisation Committee, instead of discharging its duties as mandated under sub Rule (3) of rule 7 of the Transplantation of Human Organs and Tissues Rules, 2014, has opined that the Sub Rule 7(3)(i) to (iv) of Transplantation of Human Organs and Tissues Rules, 2014, is not complied with. On the particulars submitted, it is the duty of the Authorisation Committee to evaluate the parameters and arrive at a conclusion as to whether permission can be granted or not.
W.A.474/2021 41Authorisation Committee has erred in shifting the burden on the applicant. It is well settled that when a thing has to be done in a particular manner, the same has to be done in the same manner as provided in the statutory provisions and not otherwise. Reference can be made to few decisions:
(i) In Captain Sube Singh v. Lt. Governor of Delhi, reported in [2004 (6) SCC 440] : [AIR 2004 SC 3821], at paragraph 29, the Hon'ble Supreme Court held thus:
" In Anjum M.H. Ghaswala a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka ) The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with sub-clause (i) thereof. "
(ii) The Hon'ble Supreme Court in State of Jharkhand v. Ambay Cements reported in [2005(1) SCC 368] : [AIR 2005 SC 4168] at paragraph 26, held thus:
"Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to W.A.474/2021 42 comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. Since the requirement, in the instant case, of obtaining prior permission is mandatory, therefore, non-compliance of the same must result in canceling the concession made in favour of the grantee-the respondent herein."
(iii) In Mathura Prasad v. Union of India and Others reported in 2007 (1) SCC 437, the Hon'ble Supreme Court, at paragraph 19, held thus:
When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under Sub-rules are required to be strictly followed. It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review.
(iv) In Kunwar Pal Singh (Dead) by Lrs v. State of U.P and Others, reported in 2007 (5) SCC 85 at paragraph 16, the Hon'ble Supreme Court held thus:
"13. Section 6(2), on a plain reading, deals with the various modes of publication and they are: (a) publication in the W.A.474/2021 43 Official Gazette, (b) publication in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language and (c) causing public notice of the substance of such declaration to be given at convenient places in the said locality. There is no option left with anyone to give up or waive any mode and all such modes have to be strictly resorted to. The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed therefore in the Act. "
22. The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed in the Act. The said principle of law is reiterated in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. reported in 2008 (4) SCC 775, at para 35, the Hon'ble Supreme Court held thus:
"34. It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and in no other manner, vide Chandra Kishore Jha vs. Mahavir Prasad, AIR 1999 SC 3558 (para
12), Dhananjaya Reddy vs. State of Karnataka, AIR 2001 SC 1512 (para 22), etc. Section 86(1)(f) provides a special manner of making references to an arbitrator in disputes between a licensee and a generating company. Hence by implication all other methods are barred."W.A.474/2021 44
In Selvi J. Jayalalithaa and Ors. v. State of Karnataka and Ors. reported in (2014) 2 SCC 401, the Hon'ble Apex Court, at paragraph 34, held thus:
"There is yet an uncontroverted legal principle that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. In other words, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following any other course is not permissible."
23. Giving due consideration to the material on record, and the decisions considered, we are of the view that the opinion of the authorisation committee, Ext.8 dated 9.11.2020 requires to be interfered with and consequently the impugned judgment in W.P(C).No.161 of 2021 dated 22.2.2021.
In the result, writ appeal is allowed. Judgment in W.P(C).No.161 of 2021 dated 22.2.2021 and the Authorisation Certificate, Ext.P8 dated 9.11.2021 are set aside. Authorisation Committee is directed to reconsider the entire materials and pass a reasoned order, keeping in W.A.474/2021 45 mind the objects of Transplantation of Human Organs and Tissues Act, 1994 and the Transplantation of Human Organs and Tissues Rules, 2014, as expeditiously as possible taking note of the health condition of the 1st petitioner.
S. Manikumar, Chief Justice Shaji P. Chaly, Judge sou.
W.A.474/2021 46APPENDIX PETITIONER'S EXHIBITS ANNEXURE A1 :A TRUE COPY OF THE MEDICAL CERTIFICATE OF 1ST APPELLANT DATED 24.2.2021 ISSUED BY WEST FORT HI-TECH HOSPITAL LTD.