Rabiya and Susamma v. District Level Authorization Committee for Transplantation of Human Organs, Thrissur; Thrissur Government Medical College, Thrissur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 20[TH] DAY OF SEPTEMBER 2021 / 29TH BHADRA, 1943** ## **WP(C) NO. 18852 OF 2021** ## **PETITIONERS:** 1 RABIYA AGED 46 YEARS W/O. USMAN GURUKKAL, CHANGAMPALLY HOUSE, PAIKANNUR P. O., VALANCHERRY, MALAPPURAM DISTRICT. 2 SUSAMMA AGED 44 YEARS W/O AJIKUMAR, AJIBHAVANAM, THANNITHODE VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT. BY ADV C.M.MOHAMMED IQUABAL ## **RESPONDENT:** THE DISTRICT LEVEL AUTHORIZATION COMMITTEE FOR TRANSPLANTATION OF HUMAN ORGANS, THRISSUR, THRISSUR GOVERNMENT MEDICAL COLLEGE, THRISSUR, MEDICAL COLLEGE P. O., PIN - 680 596, REPRESENTED BY ITS CHAIRMAN. ADV.SMT.RASHMI K.M, SENIOR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.18852/2021 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------** **W.P.(C)No.18852 of 2021** **-------------------------------------Dated this the 20[th ] day of September 2021** ## **JUDGMENT** ## **The above writ petition is filed with** ## **following prayers:** _“a) Call for the records leading up to Ext.P11 order and quash the same by issuance of a Writ of Certiorari or any other appropriate writ, order or direction._ _b) Issue a Writ of Mandamus or any other appropriate writ, order or direction directing the respondent to issue approval for unrelated kidney transplantation to the petitioners as per Ext.P8 and P9 applications._ _and_ _c) Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioner may pray from time to time.”_ ## **2. The 1[st] petitioner is undergoing** **treatment for kidney problem at the West Fort Hi-Tech Hospital, Thrissur. She was advised to transplant her kidney immediately. Since, the kidneys of the close relatives of the 1[st]** WP(C) NO.18852/2021 3 **petitioner are not suitable, the 2[nd] petitioner has informed her readiness to donate her kidney** **to the 1[st] petitioner. Therefore, the petitioners approached the respondent for getting approval for unrelated renal transplantation by filing Exts.P8 and P9 applications along with necessary documents. The respondent rejected the applications by virtue of Ext.P11 order. Aggrieved by the same, this writ petition is filed.** **3. Heard the learned counsel for the petitioners and the learned Government Pleader.** **4. The learned counsel for the petitioners reiterated his contentions in this writ petition. The learned counsel for the petitioners submitted that the respondent rejected the application because there is some contradiction about the job of the husband of the doner. It is stated that there is contradiction in the statement given by the doner and her husband. The learned counsel** WP(C) NO.18852/2021 4 **submitted that it is an oral statement given by the doner and her husband. According to the petitioners, the 2[nd] petitioner is an ordinary village lady. She was appearing before a committee with expert doctors. There was some confusion about the dates. The learned counsel submitted that the finding in Ext.P11 is unsustainable. The learned counsel also relied on the judgment of this Court in** _**Mohammed M.K and another v. State of Kerala and others**_ **[2014 KHC 109]** **5. The learned Government Pleader seriously opposed the same and it is submitted that the intention of the respondent is only to see that there is no commercial transaction. The learned Government Pleader submitted that there is nothing to interfere with Ext.P11 order. The learned Government Pleader also submitted that it is a subjective satisfaction of the respondent.** **6. I considered the contentions raised by** WP(C) NO.18852/2021 5 **the petitioners and the learned Government Pleader. It will be better to extract the relevant portion of Ext.P11 order by which the** ## **respondent rejected the applications.** _“As per the history given by the donor, her husband had job at wooden mill at valanchery at around 1991-1993 before her marriage 30 years back. According to the husband of the donor he had worked at that place during the period 20142016. Husband of the donor Ajikumar worked 6 years back so the committee could not found genuinity of donation of organ._ _Rule 7 Sub Rule (3)(1) to (VI) is not complied with the transplantation of Human Organs and Tissues Act 1994 and the transplantation of Human Organs and Tissues Rule 2014._ _Hence the committee unanimously rejected the case.”_ ## **7. This Court in** _**Mohammed M.K's case**_ **(supra) observed the duty of the authorisation committee in detail. It will be better to extract paragraph Nos.3, 4 and 7 of the above said judgment:** _“3. The learned counsel for the_ _petitioners submits that, Ext.P14 order passed by the second respondent is in a cursory manner, without any regard to the actual facts or the mandate under the relevant provisions of_ WP(C) NO.18852/2021 6 _law. The learned counsel points out that, there is no violation of any of the provisions, particularly Rule 4A as mentioned in Ext.P4 and that there is no merit in the observations, as to the grounds for rejection at serial No. 2 and 3 of Ext.P4. It is stated that the petitioners have produced all the documents before the concerned authorities as borne by Exts. P1 to P9. In the consent letter given by the second petitioner, all the near relatives, including the wife, parents and in-laws have subscribed their signature as to the genuineness of the cause. The factual position is discernible from Ext.P9 consent letter as well._ _4. However, without any regard to the facts and circumstances, Ext.P10 order has been passed by the District Level Authorization Committee alleging violation of Sub rule 4(i) (ii)(a)(b)(c) and (d) of Rule 4A of the Transplantation of Human Organs and Tissues Rules, 1995 and the contradictory statements given by the recipient's wife, donor and donor's wife. The position though was sought to be explained in the appeal, the appellate authority also chose to follow the very same course and has virtually reproduced the contents of Ext.P10 while passing Ext.P14 and hence the challenge._ _7. On going through the contents of the impugned proceedings, it cannot be said that a proper evaluation as envisaged under the statute has been done by the concerned authorities leading to Ext.P10 and P14. Ext.P14 is not liable to be termed as a 'speaking_ WP(C) NO.18852/2021 7 _order' passed with proper application of mind and the specific instances of violation of particular provisions of law, if any, is not discernible therefrom. This Court finds that, the matter requires to be reconsidered by the second respondent with specific reference to the facts and figures and also the relevant provisions of law, with proper application of mind.”_ ## **8. The duty of the authorisation committee** **is only to see that there is no commercial transaction. According to the petitioners, there was some mistake in the dates submitted by the 2[nd] petitioner and her husband. The learned counsel submitted that there is absolutely no commercial transaction in this case.** **9. I don't want to make any further opinion in this case. According to me, the finding in Ext.P11 is unsustainable. It can be set aside and there can be a direction to the respondent to reconsider the matter.** ## **Therefore, this writ petition is allowed in** **the following manner:** **i) Ext.P11 order is set aside.** WP(C) NO.18852/2021 8 **ii) The respondent is directed to reconsider Exts.P8 and P9 applications afresh in the light of the principle laid down by this Court in the above cited judgment.** **iii) The above exercise should be completed within one week from the date of receipt of a copy of this judgment.** **Sd/P.V.KUNHIKRISHNAN JUDGE** **DM** WP(C) NO.18852/2021 9 ## **APPENDIX OF WP(C) 18852/2021** PETITIONER EXHIBITS - EXHIBIT P1 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE DEPUTY SUPERINTENDENT OF POLICE, KONNI ALONG WITH THE REPORT DATED 13.07.2021. - EXHIBIT P2 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE PRESIDENT OF THANNITHODE GRAMA PANCHAYATH DATED 23.06.2021. - EXHIBIT P3 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE CHAIRMAN OF VALANCHERRY MUNICIPALITY DATED 15.07.2021. - EXHIBIT P4 THE TRUE COPY OF THE AFFIDAVIT OF THE 2ND PETITIONER DATED 10.07.2021. - EXHIBIT P5 THE TRUE COPY OF THE IDENTIFICATION CERTIFICATE OF THE 2ND PETITIONER AND HER HUSBAND DATED 30.06.2021. - EXHIBIT P6 THE TRUE COPY OF THE IDENTIFICATION CERTIFICATE OF THE 2ND PETITIONER AND HER SON DATED 30.06.2021. - EXHIBIT P7 THE TRUE COPY OF THE IDENTIFICATION CERTIFICATE OF THE 2ND PETITIONER AND HER SISTER DATED 29.07.2021. - EXHIBIT P8 THE TRUE COPY OF FORM 11 APPLICATION SUBMITTED BY THE PETITIONERS DATED 14.07.2021. - EXHIBIT P9 THE TRUE COPY OF FORM 3 APPLICATION SUBMITTED BY THE PETITIONERS DATED 14.07.2021. EXHIBIT P10 THE TRUE COPY OF THE COMMUNICATION ISSUED BY WEST FORT HI-TECH HOSPITAL DATED 26.07.2021. WP(C) NO.18852/2021 **==> picture [15 x 9] intentionally omitted <==** EXHIBIT P11 THE TRUE COPY OF THE ORDER ISSUED BY THE RESPONDENT DATED 08.09.2021. RESPONDENT EXHIBITS : NIL **==> picture [95 x 37] intentionally omitted <==**