Kerala High Court
Ratheesh K vs State Of Kerala on 1 July, 2016
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938
WP(C).No. 31199 of 2016 (Y)
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PETITIONER(S):
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1. RATHEESH K, S/O.KARAPPASAMI,
AGED 32 YEARS, KANAMKOTTU HOUSE,
PANTHEERAMKAVU PO, KOZHIKKOE DT. PIN 673 019.
2. SULFIKAR .K., S/O.KUNHUMUHAMMED,
AGED 41 YEARS, EZHUPARATHARA HOUE,
PADINJARETHARA, VAIKKAM P.O.,
KOTTAYAM DT PIN 686 141.
BY ADVS.SRI.T.K.AJITH KUMAR
SRI.K.T.SIDHIQ
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY,
HEALTH DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN 695 001.
2. THE DISTRICT LEVEL AUTHRISATION COMMITTEE
FOR THE HUMAN ORGAN, TRANSLPLANTATION,
REPRESENTED BY ITS CHAIRMAN, THE PRINCIPAL,
GOVERNMENT MEDICAL COLLEGE, THRISSUR, PIN 680 596.
R1 & R2 BY SENIOR GOVERNMENT PLEADER
SRI.T.K.ARAVIND KUMAR BABU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29-09-2016, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
bp
WP(C).No. 31199 of 2016 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1: TRUE COPY OF THE JOINT APPLICATION UNDER FORM -3 OF
THE TRANSPLANTATION OF HUMAN ORGANS RULES, 2014
SUBMITTED BY TH PETITIONERS BEFORE THE 2ND
RESPONDENT
P2: TRUE COPY OF THE JOINT AFFIDAVIT SUBMITTED BY THE
PETITIONERS BEFORE THE 2ND RESPONDENT
P3: TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND
PETITIONER BEFORE THE 2ND RESPONDENT
P4: TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED FROM
THE WEST FORT HI-TECH HOSPITAL , THRISSUR TO THE 2ND
PETITIONER
P5: TRUE COPY OF THE CERTIFICATE DATED 1.7.2016 ISSUED
BY THE CHAIRMAN, VAIKKOM MUNICIPALITY
P6: TRUE COPY OF THE CERTIFICATE DATED 25.6.2016
ISSUED BY THE PRESIDENT OF OLAVANNA GRAMA PANCHAYATH
P7: TRUE COPY OF THE CERTIFICATE ISSUED FROM THE WEST
FORT HI-TECH HOSPITAL, THRISSUR RECOMMENDING ORGAN
TRANSPLANTATION
P8: TRUE COPY OF THE AUTHORISATION LETTER ISSUED BY
THE 1ST PETITIONER
P9: TRUE COPY OF THE ORDER DATED 23.8.2016 PASSED BY
THE 2ND RESPONDENT DENYING PERMISSION FOR ORGAN
TRANSPLANTATION
P10: TRUE COPY OF THE JUDGMENT IN LATHEEFA E. V. STATE
OF KERALA AND OTHERS REPORTED IN 2013(2) KHC 183
P11: TRUE COPY OF THE CERTIFICATE DATED 21.9.2016 ISSUED
FROM WEST FORT HI-TECH HOSPITAL, THRISSUR
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
SHAJI P. CHALY, J
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W.P.(C)No.31199 OF 2016
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Dated this the 29thday of September, 2016
J U D G M E N T
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This writ petition is filed by the petitioners challenging Ext.P9 order passed by the second respondent denying permission for human organ transplantation, for the reason that, mother of the 1st petitioner was not able to say the name of the hospital in which, 1st petitioner undergoes treatment and could not explain about the relationship by and between the 1st petitioner and the 2nd petitioner. According to the petitioner, in accordance with the law laid down by this Court in [Latheefa E. v. State of Kerala and Others, (2013 (2) KHC 183)], holding that minor contradictions in statements will not be fatal, when there is no concrete material to doubt the correctness of the claim of the parties that, they are close family friends, Ext.P9 cannot be sustained under law. It is in W.P.(C)No.31199 OF 2016 2 this background seeking to quash Ext.P9 order, this writ petition is filed.
2. Heard learned counsel for the petitioner, learned Government Pleader appearing for the respondents and perused the documents on record and the pleadings. On a reading of Ext.P9, the permission was declined stating that the recipient's mother could not explain satisfactorily the link between the donor and the recipient, and the circumstances which led to the voluntary donation and that, mother of the recipient is not aware the name of the hospital in which the 1st petitioner undergoes treatment.
3. Taking note of the respective submissions made across the bar and the tenor of Ext.P10 judgment, I am satisfied that similar circumstances existing in this case also. Merely because, the mother of the recipient could not state where the 1st petitioner, is undergoing treatment, that cannot be turned out as a circumstance against the petitioners. W.P.(C)No.31199 OF 2016 3 It may be true that an old person might not have recollected name of the hospital where her son is undergoing treatment. The enabling circumstance for granting permission for human organ transplantation is avoidance of any commercial transaction. No where in Ext.P9 it is found that there is any commercial transaction by and between the 1st petitioner and the 2nd petitioner. Therefore, I am of the considered opinion that the reasons noted in Ext.P9 are only minor discrepancies which will have to be ignored by the 2nd respondent. In that view of the matter, I set aside Ext.P9 and direct the 2nd respondent to re- consider the permission sought for by the petitioners in accordance with law and in terms of the judgment referred (supra) in [Latheefa E. v. State of Kerala and Others, (2013 (2) KHC 183)], and a decision shall be taken at the earliest and at any rate, within two weeks from the date of receipt of a copy of this judgment.
W.P.(C)No.31199 OF 2016 4
Writ petition is disposed of accordingly.
sd/-
SHAJI P. CHALY, JUDGE R.AV