Kerala High Court
Latheefa .E Aged 50 Years vs State Of Kerala
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935
WP(C).No. 8339 of 2013 (N)
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PETITIONER(S):
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LATHEEFA .E AGED 50 YEARS
W/O. SAINUDEEN, KAIPPALLIYIL VEEDU, MYLAPOOR
UMAYANALLOOR.P.O., KOLLAM DISTRICT.
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT
DEPARTMENT OF HEALTH & FAMILY WELFARE SECRETARIAT
THIRUVANANTHAPURAM-695001.
2. SECRETARY TO GOVERNMENT
DEPARTMENT OF HUMAN AFFAIRS, SECRETARIAT
THIRUVANANTHAPURAM-695001.
3. DIRECTOR GENERAL OF POLICE
THIRUVANANTHAPURAM-695001.
4. THE DEPUTY SUPERINETENDENT OF POLICE
ALAPPUZHA.
5. THE STATE LEVEL AUTHORIZATION COMITTEE FOR RENAL
TRANSPLANTATION
DEPARTMENT OF HEALTH AND FAMILY WELFARE SECRETARIAT
THIRUVANANTHAPURAM-695001.REPRESENTED BY ITS CHAIRMAN
6. THE DISTRICT LEVEL AUTHORIZATION COMMITTEE FOR ORGAN
TRANSPLANTATION (FOR DISTRICT OF THRISSUR
PALAKKAD AND MALAPPURAM AND MEDICAL TRUST HOSPITAL
ERNAKULAM ALAPPUZHA AND ERNAKULAM)
GOVERNMENT MEDICAL COLLEGE, MEDICAL COLLEGE.P.O.
THRISSUR-68001, REPRESEMNTED BY ITS PRINCIPAL.
7. THE OFIFCER IN CHARGE
MEDICAL TRUST HOSPITAL, M.G.ROAD, ERNAKULAM
KOCHI-682016.
*8. SMT.AJITHA A,
MOHANAVILASAM,
THATHAMPILLY POST,
ALAPPUZHA 688013
(*8TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER IN IA
NO.4892/13 DATED 26/3/13.)
BY GOVERNMENT PLEADER SRI.ABDUL SALAM
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-
03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 8339 of 2013 (N)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT.P1 TRUE COPY OF THE APPALICATION FILED BY THE PETITIONER TOGETHER
WITH DOCUMENTS AND OTHER DECLARATION UNDER FORUM 3 UNDER RULE 4 (1) (B) OF
THE TOHO RULES AND NECESSSARY CERTIFICATES.
EXHIBIT.P2 TRUE COPY OF THE LETTER DATED 1-3-13 ISSUED BY THE DISTRICT
LEVEL AUTHORIZATION COMMITTEE.
EXHIBIT.P3 TRUE COPY OF THE APPEAL MEMORANDUM DATED 4-3-13 SUBMITTED BY
THE PETITIONERS HUSBAND BEFORE THE 1ST RESPONDENT.
EXHIBIT.P4 TRUE COPY OF THE LETTER DATED 14-3-13 ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONERS HUSBAND.
//True Copy//
PA to Judge
Rp
ANTONY DOMINIC, J.
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W.P.(C) NO. 8339 OF 2013
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Dated this the 26th day of March, 2013
J U D G M E N T
Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.
2. Petitioner is a patient who is urgently in need of kidney transplantation. According to the petitioner, one Smt.Ajitha A, Mohanavilasam, Thathampilly Post, Alappuzha has agreed to donate one of her kidneys to her. On that basis, along with all documentation, Ext.P1 application was submitted before the District Level Authorization Committee constituted under the provisions of the Transplantation of Human Organs Act, 1994. The application was considered and was rejected by Ext.P2 order. Challenging Ext.P2 order, appeal was filed before the 1st respondent and that appeal has been rejected by Ext.P4. It is in these circumstances, the petitioner has filed this writ petition challenging Exts.P2 and P4 and also seeking consequential directions.
3. The reason stated in Ext.P2 are that the provisions of Sub Rule 4(i) (ii) (a) (b) and (c) of Rule 4A of the Transplantation WPC.No.8339/13 :2 : of Human Organs Rules, 1995 are not complied with. It is also stated that contradictory statements were given by the recipient's husband, donor and the donor's father. This order has been confirmed in Ext.P4 which does not deal with anyone of the contentions raised by the petitioner. On the other hand, the 1st respondent has proceeded to confirm Ext.P2 without any discussion.
4. Rule 4A (4) (i) provides that the Authorisation Committee shall evaluate that, there is no commercial transaction between the recipient and the donor and that no payment of money or moneys worth as referred to in the Act, has been made to the donor or promised to be made to the donor or any other person. Although this provision of the Rule has been mentioned in Ext.P2 order passed by the Authorization Committee, there is no finding that the case of the petitioner involves any commercial transaction or even a promise in that behalf. As far as the provisions of Sub Rule (4) (ii) (a), (b) and (c) of Rule 4A are concerned, Clause (a) requires the Authorisation Committee to assess the explanation of the link between the donor and donee and the circumstances which led to the offer being made. The WPC.No.8339/13 :3 : documents annexed to Ext.P1 application indicate that according to the donor and donee, the donee is a close family friend and that is the reason. Although certain minor contradictions in the statements recorded from the recipient's husband, donor and donor's father are mentioned in Ext.P2, no concrete material is relied on to doubt the correctness of the claim of the parties that they are close family friends. Necessary declarations have been made in the affidavit filed by both parties. The materials available before the Committee did not justify the suspicion about the bona fides of the offer made, justifying rejection of the application by Ext.P2 order. Since Ext.P4 does not contain any discussion, that order also is untenable.
5. For the aforesaid reasons, I am satisfied that Exts.P2 and P4 deserves to be set aside. Even the Authorization Committee does not have a case that the application or its enclosures submitted by the petitioner do not meet the requirements laid down in the Act. If that be so, in the absence of any circumstances justifying rejection of the application, I set aside Exts.P2 and P4 and direct the 6th respondent to pass orders according permission to the petitioner for accepting the kidney WPC.No.8339/13 :4 : offered by Smt.Ajitha A, Mohanavilasam, Thathampilly Post, Alappuzha. Orders in this behalf shall be passed at any rate within 10 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 Rp