Madhya Pradesh High Court
Sanjiv Mohan Gupta vs The State Of Madhya Pradesh on 4 July, 2022
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 4th OF JULY, 2022
WRIT PETITION No. 14507 of 2022
Between:-
SANJIV MOHAN GUPTA S/O LATE SHRI
GURUDEV GUPTA , AGED ABOUT 58 YEARS,
OCCUPATION: BUSINESS ADDRESS 44 NISHAT
COLONY, 74 BUNGLOWS, BHOPAL (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SANKALP KOCHAR - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETRY DEPARTMENT OF
PUBLIC HEALTH AND FAMILY WELFARE M.P.
GOVT. BHOPAL (MADHYA PRADESH)
2. SIDDHANTA RED CROSS SUPER SPECIALTY
HOSPITAL THROUGH MANAGING DIRECTOR
RED CROSS BHAVAN LINK ROAD NO.1 SHIVAJI
NAGAR BHOPAL (M.P.) (MADHYA PRADESH)
3. AUTHORISATION COMMITTEE APPOINTED BY
THE STATE GOVERNMENT UNDER THE
TRANSPLANTATION OF HUMAN ORGANS
(AMENDMENT )ACT 2011 (MADHYA PRADESH)
4. GOVIND AHIRWAR S/O JAGDEESH AHIRWAR ,
AGED ABOUT 22 YEARS, R/O GRAM AFATGANJ
POST INTKHEDI TEHSIL BADI INTKHEDI
RAISEN (M.P.) (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT/STATE BY SHRI G.P.SINGH - GOVERNMENT
ADVOCATE)
Signature Not Verified
SAN
This petition coming on for admission this day, th e court passed the
Digitally signed by HEMANT SARAF
Date: 2022.07.04 19:12:18 IST
following:
ORDER
2 This petition under Article 226 of the Constitution of India has been filed challenging the legality and validity of the order dated 27.5.2022, passed by the respondent no.3 (Authorisation Committee) whereby they have refused to grant permission for kidney transplantation between the respondent no.4, the donor and the petitioner, the recipient in spite of the fact that the petitioner is virtually on the death bed and is fighting for his life.
Brief facts leading to filing of the instant petition are that the petitioner is suffering from kidney disease and was advised to undergo kidney transplantation. All his blood relatives were examined, 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 transplantation. A detailed medical examination of the respondent no.4 took place at Siddhanta Red Cross Super Specialty Hospital, Bhopal, under the supervision of specialist doctors and instruments. The respondent no.4 has already given his consent for kidney transplantation without exerting any external 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. Parents and wife of the respondent no.4 have also executed an affidavit wherein they have categorically stated that they have no objection to the aforementioned transplantation. Earlier, the petitioner had approached this Court in W.P.No.8575/2022. Vide order dated 20.4.2022 the petition was disposed of with liberty to the petitioner to submit an application before the Authorisation Committee, respondent no.3, within three Signature Not Verified days and was directed to consider and decide the application within a period of SAN seven days. The said Authorisation Committee has rejected the application of Digitally signed by HEMANT SARAF Date: 2022.07.04 19:12:18 IST the petitioner stating that according to the guidelines of kidney transplant the 3 Committee cannot overlook or violate the existing norms as per Rule 3 part IV and IX, which has been highlighted for, hence, cannot recommend transplantation in the above case. Being aggrieved therewith the petitioner has preferred this petition.
Learned counsel for the petitioner submits that the reasons assigned by the respondent no.3 in refusing kidney transplantation of the petitioner is illegal and arbitrary. He submits that once the hospital examining the health condition of the petitioner as well as the respondent no.4 arrived at the conclusion that the respondent no.4 is medically fit to donate the kidney as well as the recipient, i.e. the petitioner is also fit to accept the kidney, refusal for transplantation of kidney would be illegal and arbitrary particularly when the petitioner is on the death bed.
Per contra, learned counsel for the respondents/State opposed the prayer made in the petition by submitting that the Authorisation Committee after examining the case of the petitioner has rightly rejected his application by arriving at the conclusion that the kidney cannot be transplanted. Hence, no interference is called for and the petition deserves to be dismissed.
Heard learned counsel for the parties and perused the record. The Parliament has enacted the Act known as 'the Transplantation of Human Organs Act, 1994" and have made the rules thereunder known as "the Transplantation of Human Organs and Tissues Rules, 2014", hereinafter referred to as 'the Rules'. Rule 7 sub rule (3) clause (iv) and clause (ix) provides as under :-
Signature Not Verified"(3) When the proposed donor and the recipient are not near SAN Digitally signed by HEMANT SARAF Date: 2022.07.04 19:12:18 IST relatives, the Authorisation Committee shall,-4
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(iv) examine the documentary evidence of the link, e.g. proof that they have lived together, etc.;
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(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 of such kind shall also be recorded and taken note of".
Keeping in view the aforesaid provisions of the Rules as well as taking into consideration the fact that the competent Specialist doctors after examining the health condition of the petitioner as well as the respondent no.4 have arrived at the conclusion that the respondent no.4 is medically fit to donate the kidney as well as the recipient, i.e. the petitioner is also fit to accept the kidney, there is no reason to reject the prayer of the petitioner specially when he is on the death bed and is fighting for his life.
Hence, this petition is disposed of with a direction to respondents no.2 and 3 to expedite the process of transplantation of kidney between respondent no.4 and the petitioner within a period of seven days from the date of receipt of certified copy of this order.
Signature Not Verified SANCertified copy today.
Digitally signed by HEMANT SARAF Date: 2022.07.04 19:12:18 IST 5(S. A. DHARMADHIKARI) JUDGE HS Signature Not Verified SAN Digitally signed by HEMANT SARAF Date: 2022.07.04 19:12:18 IST