Gopal Gulabrao Rathod And Another vs The State Of Maharashtra And ...
2016 Latest Caselaw 3505 Bom

                                                                     902wp6490-16.odt
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD

                             WRIT PETITION NO. 6490 OF 2016




                                                                             
    1.        Gopal s/o Gulabrao Rathod
              Age 29  Years, Occu: Service,




                                                     
              R/o Talegaon,
              At present residing at
              Swapna Nagari, Aurangabad




                                                    
    2.        Smt. Kanta d/o Dashrat Chavan                 ... Petitioners
              Age 45 years, Occu: Agri. and 
              Household, R/o Arambhi
              At present residing at Pushkar 




                                               
              Niwas, Garkheda
              Parisar, Aurangabad

              VERSUS
                                  
    1.        The State of Maharashtra
                                 
              Through its Secretary,
              Medical Education & Drug 
              Department, Mantralaya, Mumbai 
              400 032
      


    2.        The Additional Chief Secretary
   



              Maharashtra State, Mantralaya,
              Mumbai-32

    3.        The Dean/Chairman,               ... Respondents





              Government Medical College and
              Hospital, Aurangabad,
              Chairman of Authorization 
              Committee constituted for the 
              purpose of  grant of permission 





              to transplant Human  Organs and 
              Tissues.

    Mr. V. J. Dixit, Senior Advocate i/by Mr. Ankush N. 
    Nagargoje, Advocate for the petitioners
    Mr. A. R. Kale, AGP for the Respondents 1 to 3-State.

                                        CORAM   :  R. M. BORDE & 
                                                  K. L. WADANE, JJ.

902wp6490-16.odt DATE : 30th June, 2016

ORAL JUDGMENT (Per Borde, J.):

1. We have heard the learned counsel for the

respective parties.

2. Rule. Rule made returnable forthwith.

3. By consent of the parties, the petition is taken

up for final hearing.

4.

Petitioner No.1, aged 29 years, is suffering

from kidney problems and has been advised kidney

transplantation. Petitioner No.2, who is close relative

of petitioner No.1, has consented for donation of

her kidney to petitioner No.1, however, she does not

come within the purview of definition of 'near

relative' as provided under the Transplantation of

Human organs And Tissues Act, 1994. A joint application

was made by the petitioners as required under the

Regulation to the Authorization Committee, seeking

approval for donation of kidney by petitioner No.2 to

petitioner No.1. However, the Authorization Committee,

by order dated 22.12.2015, was pleased to reject the

application on the ground that relation between

petitioner No.1 and petitioner No.2 cannot be confirmed

902wp6490-16.odt at the level of the Committee and on the basis of

documents produced.

5. An appeal was presented to the Appellate Forum

provided under Section 17 of the Act of 1994. However,

the Appellate Forum rejected the appeal totally on

different ground. The appellate forum has recorded in

the order that donation of kidney by petitioner No.2 in

favour of petitioner No.1 appears to be out of her

obligation towards petitioner No.1 and his family than

out of love and affection. The Appellate Forum

recorded that the consent cannot be termed as

voluntary. The reason recorded by the Appellate Forum

does not appear to be in conformity with the facts

giving rise to the appeal.

6. Petitioner No.2 is sister of mother of

petitioner No.1 in whose favour she has agreed to

donate human organ. Admittedly, petitioner No.2 resides

with her brother and is not a burden on the family of

petitioner No.1. Reasons set out in the Appellate

order that donation of kidney is mere out of obligation

towards Petitioner no.1 does not appear to be correct.

Petitioner No.2 does not appear to have any obligation

towards petitioner no.1, since she resides separately

902wp6490-16.odt with her brother at a different place. Apart from this,

the Authorization Committee, while dealing with the

matter, has not accorded opportunity of hearing to

the petitioners as required under Section 9 of the

Act of 1994 framed under the Act. Sub Section 6 of

Section 9 of the Act, 1994 provides that if, after the

enquiry and after giving an opportunity to the

applicants of being heard, the Authorization Committee

is satisfied that the applicants have not complied

with the requirements of this Act and the Rules made

thereunder, it shall, for the reasons to be recorded

in writing, reject the appication for approval.

7. In the instant matter, admittedly the petitioners

have not been extended opportunity of hearing by the

Authorization Committee. As such, the order passed by

the Authorization Committee is bad on account of non

observation of principles of natural justice. The

Authorization Committee shall apply its mind to the

case on the basis of material placed before it and

after extending opportunity of hearing to the parties

and render its decision by taking into account the

provisions of Rule 7(3) of Rule 2014. Decision of the

Authorization Committee shall be within the framework

of the Rules and the application cannot be turned down

902wp6490-16.odt on any ground outside the scheme of the Rules. Sub

Rule (3) of Rule 7 reads thus:

"7. Authorization Committee:

(1)...

(2)....

(3)when the proposed donor and the recipient are not

near relatives, the Authorization 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.;

(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 the 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

902wp6490-16.odt dealing;

(viii) ensure that the donor is nor 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 the recipient, and the reasons for donation, and any strong view of disagreement or objection of such kin

shall also be recorded and taken note of.

8. It is informed that the petitioner No.1 is under

treatment in Kamal Nayan Bajaj Hospital, Aurangabad,

and is in critical condition and needs urgent kidney

transplantation operation. Considering the urgency of

the matter, we direct the Authorization committee to

hear the parties on Monday,4th July, 2016 and render

decision in consonance with the directions issued by

this Court, as expeditiously as possible and preferably

within three days from the date of appearance.

9. The impugned orders passed by the Authorization

Committee and Appellate Forum are quashed and set

aside. Rule is made absolute accordingly.

10. In the facts and circumstances of the case,

902wp6490-16.odt there shall be no order as to costs.

11. Authenticated copy is allowed. Parties to act

upon authenticated copy of this order.

     (K. L. WADANE, J.)                   (R. M. BORDE, J. ) 




                                                 
    JPC