Muhammad Basheer and Manikandan v State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 10TH DAY OF APRIL 2018 / 20TH CHAITHRA, 1940** **WP(C).No. 12171 of 2018** **-----------------** **PETITIONER(S)** - **-------------** - **1 MUHAMMAD BASHEER, AGED 52 YEARS, S/O.ABDU HAJI, MACHINCHERY HOUSE, THOZHUVANNOOR POST, MALAPPURAM DISTRICT.** - **2 MANIKANDAN. K.S,** - **AGED 45 YEARS, S/O.K.R. SUKUMARAN NAIR, KANNOTHUKUDI HOUSE, EAST OKKAL, SREEKRISHNAPURAM, CHELAMATTOM, ERNAKULAM DISTRICT.** **BY ADVS.SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH.** ## **RESPONDENT(S):** - **-------------** **1. STATE OF KERALA,** - **REP. BY THE SECRETARY, HEALTH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DISTRICT LEVEL AUTHORIZATION COMMITTEE FOR THE HUMAN ORGAN TRANSPLANTATION, REP. BY ITS CHAIRMAN, THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, KOTTAYAM-686 008.** **3. THE MANAGING DIRECTOR,** - **LAKESHORE HOSPITAL AND RESEARCH CENTRE, NH BYE PASS, MARADU, NETTUR POST, ERNAKULAM, PIN-682 040.** **R1 & R2 BY SR. GOVT. PLEADER SRI.P.M. MANOJ.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **11/04/2018.** **WP(C).No. 12171 of 2018 (V)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY DR.ABHISHEK YADEV OF THE LAKESHORE HOSPITAL DATED 27.03.2018. EXHIBIT P2 TRUE COPY OF THE DECLARATION AND CONSENT LETTER DATED 06.03.2018 ISSUED BY THE 2ND PETITIONER EXHIBIT P3 TRUE COPY OF THE JOINT AFFIDAVIT DATED 06.03.2018 ISSUED BY THE PETITIONERS. EXHIBIT P4 TRUE COPY OF THE CERTIFICATE ISSUED BY THE CHAIRPERSON OF THE VALANCHERY MUNICIPALITY DATED 24/02/2018. EXHIBIT P5 TRUE COY OF THE RELATIONSHIP CERTIFICATE BETWEEN THE PETITIONERS DATED 06.03.2018 EXHIBIT P6 TRUE COPY OF THE IDENTIFICATION CERTIFICATE OF THE PETITIONERS DATED 08.03.2018 ISSUED BY THE TAHSILDAR, TIRUR. EXHIBIT P7 TRUE COPY OF THE FORM 3 APPLICATION DATED 06.03.2018 SUBMITTED BY THE 2ND PETITIONER. EXHIBIT P8 TRUE COPY OF THE FORM 11 APPLICATION FOR APPROVAL DATED 06.03.2018. EXHIBIT P9 TRUE COPY OF THE LETTER ISSUED BY THE DYSP PERUMBAVOOR TO MR.DR.ABHISHEK YADEV, LAKESHORE HOSPITAL DATED 05.03.2018. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 17.03.2018 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs. 11/04/2018.** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.12171 of 2018 ----------------------------------------------Dated this the 10[th] day of April, 2018** ## **JUDGMENT** This writ petition is filed by the petitioners seeking to quash Ext.P10 order passed by the 2[nd] respondent dated 17.03.2018, whereby the transplantation of liver sought for by the 1[st] petitioner by accepting the same from the 2[nd] petitioner is declined in accordance with the provisions of the Transplantation of Human Organs and Tissues Rules, 2014. Material facts for the disposal of the writ petition are as follows: 2. First petitioner is suffering from Liver Cirrhosis and Diabetic Mellitus. Other consequential diseases are suffered by the 1[st] petitioner. According to the 1[st] petitioner, his condition is very critical and required urgent liver transplantation. Second petitioner has offered to donate the liver to the 1[st] petitioner. Thereupon, after completing the requisite formalities, 2[nd] respondent considered the application for the approval of transplantation, however, dismissed the same by Ext.P10 order. According to the petitioners, the 2[nd] respondent **W.P.(C) No.12171 of 2018** 2 failed to take into account the relevant aspects and the principles of law laid down by this Court in ' _**Latheefa E. v. State of Kerala and Others**_ ' [2013 (2) KHC 183]. The reason assigned in Ext.P10 order for refusing transplantation is that, the 2[nd] petitioner failed to prove the relationship between them and hence the link between the donor and the recipient is suspected. However, it is submitted that the 2[nd] respondent did not find anything to show that there is any element of commercial transaction involved in the subject matter. Ext.P9 letter issued by the Deputy Superintendent of Police, Perumbavoor also shows that the donor is altruistic and there is nothing suspicious. These are the background facts projected by the petitioners seeking interference with Ext.P10 order. 3. I have heard learned counsel for the petitioners and the learned Senior Government Pleader, and perused the documents on record and the pleadings put forth by the petitioners. 4. Ext.P1 is a certificate issued by the hospital, certifying that the 1[st] petitioner is diagnosed with decompensated liver cirrhosis and diabetic mellitus and he has **W.P.(C) No.12171 of 2018** 3 de-compensation in the form of ascites, edema, and hepatic encephalopathy. Therefore, the 1[st] petitioner is unable to have a normal life and is at risk of dying without an urgent Liver Transplant. Other requisite documents are produced as Exts.P2 to P7 in accordance with the provisions of the aforesaid Rules. 5. Now the sole question remains to be considered is, whether any manner of interference is warranted to Ext.P10 order. Ext.P9 is a report submitted by the Deputy Superintendent of Police, Perumbavoor dated 05.03.2018, wherein it is stated that, necessary enquiries were made by the Station House Officer, Perumbavoor about the donor viz., the 2[nd] petitioner, and as per the report of the Station House Officer, 2[nd] petitioner is willing to donate a part of his liver to the 1[st] petitioner who is his friend and is suffering from acute liver failure, and decided to undergo liver transplantation. It is also stated that, there is nothing adverse revealed against the donor and he has not engaged in any criminal offence and he has an altruistic mind also. Therefore, there is no objection from the part of police in 1[st] petitioner undergoing liver transplantation accepting the same from the 2[nd] petitioner. 4 **W.P.(C) No.12171 of 2018** 6. In my considered opinion, what was weighed with the 2[nd] respondent is that the donor viz., 2[nd] petitioner did not know the name of the saw mill where the 1[st] petitioner worked along with him and did not know the phone number of the 1[st] petitioner. It is also stated thereunder that the 2[nd] petitioner failed to identify the names of nearby shops. Therefore, the explanation of the link between the proposed donor and the recipient and the circumstances which led to the offer being made is suspected. That apart, it is stated that, the proposed donor and the nominee of the recipient gave contradictory statements at the time of interview. Other similar circumstances are pointed out. But, nowhere in Ext.P10 order, it is found that there is any commercial transaction by and between the parties in order to donate the liver to the 1[st] petitioner. 7. Learned counsel for the petitioners has invited my attention to the judgment of this Court in _**'Latheefa E**_ ' ( _supra_ ), wherein it is held that, if application and its enclosures submitted by the donor meets the requirements laid down in the Act, it has to be considered properly, and minor contradictions in statements will not be fatal when there is no **W.P.(C) No.12171 of 2018** 5 concrete material to doubt the correctness of claim of the parties that they are close family friends. The order passed by the Authorization Committee was interfered with therein, and directed to re-consider the issue and take a decision in accordance with law. Following the said judgment, in W.P.(C) No.31199 of 2016, this Court has rendered a judgment dated 29.09.2016, interfering with the order passed by the Authorization Committee and issued directions to re-consider the matter. 8. Having evaluated the facts and circumstances and reckoning the law in accordance with the Rules provided for the purpose, and also the proposition of law laid down by this Court in _**'Latheefa E**_ ' ( _supra_ ), I am of the considered opinion that, similar circumstances are existing in this case. The findings rendered by the 2[nd] respondent in Ext.P10 order are without taking into account Ext.P9 report submitted by the Deputy Superintendent of Police, and also attributing minor discrepancies like 2[nd] petitioner and the 1[st] petitioner's nominee failed to provide the details as is sought for at the time of interview correctly. In my considered opinion, the 2[nd] respondent Committee was carried away by such issues and 6 **W.P.(C) No.12171 of 2018** thereupon, overlooked the material aspects that are to be taken into account for the purpose of considering such applications taking into account the urgency of the matter. Having found so, there is clear violation of the principles of natural justice, arbitrariness and illegality in Ext.P10 order, liable to be interfered with by this Court under Article 226 of the Constitution of India. 9. Accordingly, I quash Ext.P10 order and direct the 2[nd] respondent to re-consider the application taking into account all inputs including the report of the Deputy Superintendent of Police and other attendant circumstances, inclusive of the principles laid down in the judgment in _**'Latheefa E**_ ' ( _supra_ ), and pass orders at the earliest possible time, and at any rate, within two weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/11.04.2018