Madhya Pradesh High Court
Piyush Shrivastava vs The State Of Madhya Pradesh on 24 November, 2022
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
W.P. No.22503/2022
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 24th OF NOVEMBER, 2022
WRIT PETITION No. 22503 of 2022
BETWEEN:-
PIYUSH SHRIVASTAVA S/O MAHESH
NARAYAN SHRIVASTAVA, AGED ABOUT 37
YEARS, R/O H. NO. 363 RACHNA NAGAR
NEAR RAILWAY LINE GOVINDPURA
BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SHASHANK SHEKHAR- SENIOR ADVOCATE WITH
SHRI SHASHWAT AWASTHI- ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH
THORUGH PRINCIPAL SECRETARY
DEPARTMENT OF PUBLIC HEALTH AND
FAMILY WELFARE MP GOVERNMENT
DISTRICT BHOPAL M.P. (MADHYA
PRADESH)
2. SIDDHANTA RED CROSS SUPER
SPECIALITY HOSPITAL THROUGH
MANAGING DIRECTOR RED CROSS
BHAWAN LINK ROAD NO. 1 SHIVAJI
NAGAR BHOPAL (MADHYA PRADESH)
3. AUTHORISATION COMMITTEE APPOINTED
BY THE STATE GOVT. UNDER THE
TRANSPLANTATION OF HUMAN ORGANS
(AMENDMENT ) ACT 2011 THROUGJH
GANDHI MEDICAL COLLEGE HAMIDIYA
ROAD BHOPAL (MADHYA PRADESH)
W.P. No.22503/2022
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4. KARAN KHATRI S/O LT. SHRI LATE
KARTAR SINGH, AGED ABOUT 22 YEARS,
R/O NAYAB BAZAAR NARSINGHPUR
TEHSIL NARSINGHPUR DISTRICT
NARSINGHPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SIDDHARTH SHARMA- ADVOCATE WITH SHRI
AMIT JAIN- ADVOCATE )
This petition coming on for admission this day, the court
passed the following:
ORDER
Heard finally with the consent of both the parties. By filing this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :
"7.1 That this Hon'ble Court may kindly be pleased to quash the Impugned order dt.13/09/2022 passed by Respondent no.3 (Annexure P/9), in the interest of justice.
7.2 That this Hon'ble Court may kindly direct the authorization committee appointed by the state govt. under The Transplantation of Human Organs Act, 1994 to grant necessary sanction for kidney transplantation without any further delay, in the interest of justice.
W.P. No.22503/2022 3 7.3 That this Hon'ble Court may kindly be pleased to direct Respondent no.2 and 3 to expedite the process of kidney transplantation between Petitioner and Respondent no.4, without any further delay, after obtaining proper sanctions from the appropriate authority appointed by the state govt.
under the Transplantation of Human Organs Act.
7.4 Any other relief which this Hon'ble court may deem just and proper in the facts and circumstances f the case may kindly be issued in favor of the petitioner along with cost of the petition."
2. Learned senior counsel appearing for the petitioner submitted that by the impugned order dated 13.09.2022 (Annexure P/9), the respondent No.3 (Authorization Committee) has refused to grant permission for kidney transplantation between the petitioner and respondent No.4 in spite of the fact that the petitioner is virtually on the death bed and is fighting for his life.
3. Brief facts leading to filing of the instant petition are that the petitioner is suffering from kidney disease and was advised to undergo kidney transplant. All his blood relatives were examined, W.P. No.22503/2022 4 but, none of them were found to be medically fit and competent to donate kidney to the petitioner. However, the respondent No.4 was found to be medically fit and competent for kidney transplant. A detailed medical examination of respondent No.4 took place at Siddhanta Red Cross Super Specialty Hospital, Bhopal, under the supervision of specialist doctors and equipments. The respondent No.4 has already given his consent for kidney transplantation without exerting to any external or internal pressure or force or in lieu of any monetary consideration, rather on his own will in order to save the life of the petitioner. The respondent No.4 is having family relations with the petitioner. The mother and Donor, both have given their affidavits in support of kidney transplantation. Earlier, the petitioner had approached this Court in W.P.No.18262/2022. This Court vide order dated 24.08.2022 read alongwith order dated 30.08.2022, had directed the respondent No.3 to consider the application of the petitioner on an urgent basis. Since the application of the petitioner has been rejected by the respondent authorities, the petitioner has no option but to approach this Court seeking permission for kidney transplantation.W.P. No.22503/2022
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4. Learned counsel for the petitioner submitted that while considering the case of the petitioner, the Medical Board Authorization Committee rejected the application on the ground that the respondent No.4- Donor and the petitioner- Recipient are not related to each other and have failed to produce documents to prove that there is no monetary transaction between them and also failed to prove long term relationship. He further submitted that the impugned order is passed without application of mind and in clear violation of Rule 7(3) of The Transplantation of Human Organs and Tissues Rules, 2014 (hereinafter shall be referred as "Rules of 2014"). Rule 7(3) mandates that the Authorization Committee, in case when the proposed Donor and the Recipient are not blood relatives, shall strictly scrutinize and evaluate the application as per the said Rule. Rule 7(3) of the Rules of 2014 reads as under:
"7. Authorization Committee --(1) The medical practitioner who will be part of the organ transplantation team for carrying out transplantation operation shall not be a member of the Authorization Committee constituted under the provisions of clauses (a) and
(b) of sub-section(4) of section 9 of the Act.W.P. No.22503/2022 6
(2) When the proposed donor or recipient or both are not Indian nationals or citizens whether near relatives or otherwise, the Authorization Committee shall consider all such requests and the transplantation shall not be permitted if the recipient is a foreign national and donor is an Indian national unless they are near relatives.
(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.;W.P. No.22503/2022 7
(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 W.P. No.22503/2022 8 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.
(4) Cases of swap donation referred to under subsection (3A) of section 9 of the Act shall be approved by Authorisation Committee of hospital or district or State in which transplantation is proposed to be done and the donation of organs shall be permissible only from near relatives of the swap recipients."
5. Learned counsel for the petitioner submitted that the respondents have not followed the prescribed Rule before rejecting the request and have passed a cyclostyled order putting the petitioner into jeopardy and his life at stake. Learned counsel for the petitioner further submitted that the application for kidney transplantation was submitted by the petitioner in the prescribed format alongwith the required documents/affidavits etc. but the respondent No.3- Authorization Committee has not taken into consideration and has not given the finding in respect of Rule 7(3)(i to viii) individually. Without following the aforesaid procedure, the Authorization W.P. No.22503/2022 9 Committee has straightway come to the conclusion and rejected the application of the petitioner. He also submitted that once the Hospital examining the health condition of the petitioner as well as respondent No.4 has arrived at the conclusion that respondent No.4 is medically fit to donate the kidney as well as the Recipient i.e. petitioner to accept the kidney, refusal for transplantation of kidney would be illegal and arbitrary particularly when the petitioner is on death bed. In such a situation, the impugned order dated 13.09.2022 (Annexure P/9) deserves to be set aside and permission may be granted to the petitioner for kidney transplantation as has been done by this Court in identical writ petition bearing W.P. No.14507/2022.
6. Per contra, learned counsel for the respondents/State opposed the prayer and submitted that the Authorization Committee after examining the case of the petitioner has rightly rejected his application by arriving at the conclusion that kidney cannot be transplanted. Moreover, the petitioner could not prove that there is any commercial transaction between the Recipient and the Donor and no payment has been made to the Donor or promised to be made to the Donor or any other person. He also failed to prove his W.P. No.22503/2022 10 relationship. Hence, no interference is called for and the petition deserves to be dismissed.
7. Heard the learned counsel for the parties and perused the record.
8. On perusal of the record as well as considering the submission of learned counsel for the parties, this Court is of the considered opinion that Rule 7 sub-rule 3 of the Rules of 2014 has not been followed by the respondents before passing the impugned order dated 13.09.20222 (Annexure P/9). Learned counsel for the respondents is unable to show that the case of the petitioner was considered in the light of Rule 7(3) of the Rules of 2014. In view whereof, the impugned order dated 13.09.2022 (Annexure P/9) rejecting the application cannot be allowed to stand. Accordingly, the same is hereby set aside. Matter is remanded back to the Authorization Committee to strictly scrutinize and evaluate the application Rules of 2014 particularly Rule 7, as expeditiously as possible preferably within a period of 15 days from the date of receipt of certified copy of the order passed today. It would be open for the Authorization Committee to call for the documents/seek clarification/explanation W.P. No.22503/2022 11 from the petitioner before coming to a fresh conclusion. If the Authorization Committee after re-evaluation comes to the conclusion that the petitioner has made out a case for kidney transplantation, permission for kidney transplantation shall be granted without further loss of time looking to the urgency in the matter.
With the aforesaid, this petition is allowed to the extent indicated hereinabove.
No order as to cost.
(S. A. DHARMADHIKARI) JUDGE Shanu Digitally signed by SHANU RAIKWAR Date: 2022.11.25 14:16:46 +05'30'