Delhi High Court
Pawan Anand & Anr. vs Director General Of Health ... on 1 October, 2012
Author: Rajiv Shakdher
* THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : 21.09.2012
% Judgment delivered on: 01.10.2012
+ WP(C) No. 5960/2012
PAWAN ANAND & ANR. ...... PETITIONERS
VS
DIRECTOR GENERAL OF HEALTH SERVICES
AND OTHERS ..... RESPONDENTS
Advocates who appeared in this case:
For the Petitioners : Mr. Mukesh Anand, Advocate
For the Respondents : Mr. Rajeeve Mehra, ASG with Mr. M. Sumeet Pushkarna, CGSC,
Mr. Gaurav Sharma and Mr. Ashish Virmani, Advocates for R-1&3
CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
1. There are few decisions which challenge the intrinsic attributes of a human
being, which is, to tilt in favour of life and equity, as and when equity
coalesces with law. At times, similar challenges are faced by Judges. This is
one such case. Much of the initial dilemma faced by me was resolved on
coming across the reply that Justice Holmes gave to his friend Judge learned
Hand who while parting his company, exhorted him: "Do justice, Sir, do
justice". Justice Holmes in his inimitable style turned back and replied: "that
is not my job. It is my job to apply the law". The takeaway for me is: for a
judge it is always about justice according to law.
2. With this preface, let me first pen down, the facts obtaining in the
present case. By and large, the facts are not in dispute.
2.1 There are two petitioners before me. Petitioner no.1 is the son of one,
Mrs. Urmila Anand, who is suffering from a chronic liver disease
accompanied with cirrhosis of liver and is therefore, in urgent need of liver
transplantation (hereinafter referred to as the recipient). Petitioner no.2, is
one, Smt. Gulab Devi (hereinafter referred to as donor), who is the potential
donor of a part of her liver, in respect of which, permission is sought under the
Transplantation of Human Organs and Tissues Act, 1994 (in short the
Transplantation Act). The recipient is approximately 62 years of age, while
the donor is 43 years of age; is married and has five children, of which three
are unmarried, while the other two being a son and a daughter are married.
The unmarried children are aged: twenty (20), eighteen (18) and sixteen (16)
years. The married son stays separately and is not financially supporting the
donor's family.
2.2 It appears that in and around April, 2012, the recipient discovered that
she was suffering from a chronic liver disease and hence, required a liver
transplant. The recipient's family appears to have approached Indraprastha
Apollo Hospital, Delhi (in short Apollo Hospital) for advice and treatment.
2.3 The treating doctor, one, Dr. Subash Gupta vide communication dated
16.04.2012, wrote to the Authorisation Committee, in the State of U.P., for
issuance of a No Objection Certificate (NOC), under the Transplantation Act,
to enable the necessary medical procedure to be undertaken for effecting the
transplant.
2.4 A certificate was also issued by the Centre for Liver and Biliary
Surgery, on 08.06.2012, certifying thereby, the necessity of a requirement of a
liver transplant by the recipient.
2.5 The recipient has also obtained NOC from the office of the District
Magistrate, Agra dated 21.05.2012. Recommendations have also been
obtained by the recipient from the Mayor of Agra and a Member of
Parliament from Agra dated 22.05.2012 and 23.05.2012 respectively.
2.6 With these certificates and recommendations in hand, petitioner no.1
approached the Authorization Committee in the State of Delhi as the medical
procedure was required to be conducted at Delhi. Vide a communication
dated 07.06.2012, the request for effecting liver transplant was rejected. The
said communication very cryptically informed the consultant (i.e., treating
doctor of the recipient), that permission for transplant could not be granted for
the following reasons :-
(i). there was no reciprocal relationship between the recipient and the
donor;
(ii). there appears to be an "association" of "Master" and "Care Taker"
between the two; and
(iii). there was a gross financial disparity between the donor and the
recipient.
2.7 Aggrieved by the same, petitioner no.1 approached this court by way of
a writ petition, bearing no.3734/2012. Simultaneously, an appeal under
section 17 of the Transplantation Act, was also filed. The said writ petition
came up for hearing before this court on 15.06.2012. On the said date, the
writ petition was disposed of with a direction to respondent no.1, to dispose of
the appeal within a period of one week from the date of the order.
Respondent no.1, was also, directed to consider the judgment of this court
passed in WP(C) 2574/2012, titled Parveen Begum and Anr. Vs. Appellate
Authority and Anr., decided on 15.05.2012.
2.8 The appeal was disposed of by respondent no.1 vide order dated
21.06.2012. Respondent no.1, dismissed the appeal briefly on the ground that
based on the evidence on record, petitioner no.1 had failed to establish "love
and affection" or "affection and attachment" as between the donor and the
recipient. In sum and substance, respondent no.1 agreed with the decision
taken by the Authorization Committee of the Apollo Hospital.
2.9 This order of the respondent no.1 was assailed before me in WP(C)
3848/2012. By order dated 09.08.2012, I allowed the writ petition and set
aside the order of the respondent no.1, primarily on the ground that while
passing the order dated 21.06.2012, no personal hearing had been given to
petitioner no.1. I had also observed that on account of my interaction with
petitioner no.2, I had come to a conclusion that the apparent consent of
respondent no.1, was not an informed consent. It is in these circumstances
that I remanded the matter to respondent no.1 for a de novo hearing. I had
also directed respondent no.1 to inform petitioner no.2 with regard to all
possible outcomes of such an operation.
2.10. Pursuant to the above, the respondent no.1 undeniably granted a
personal hearing to petitioner no.1. As directed, petitioner no.2 was also
informed, it appears, about the possible outcomes of such a transplant surgery,
including the fact that, it could lead to mortality. Respondent no.1, pursuant
to its reconsideration of the matter, has come to a conclusion vide the
impugned order dated 24.08.2012 that, the request of the petitioner no.1,
could not be accepted. The appeal was accordingly dismissed.
SUBMISSIONS OF COUNSELS
3. It is against this order of the respondent no.1, that the present writ
petition has been preferred. Mr. Mukesh Anand, appeared on behalf of the
petitioners, while the respondents were represented by Mr. Rajeeve Mehra,
learned ASG, instructed by Mr. Sumeet Pushkarna, CGSC, Mr. Gaurav
Sharma and Mr. Ashish Virmani, Advocates.
3.1. Briefly, Mr. Mukesh Anand, submitted that the impugned order would
have to be set aside in view of the following :-
3.2 The impugned order lacks cogent reasons. In this regard, it was
submitted that, the reference in the impugned order to the fact that the
recipient and the donor families did not participate in marriage functions of
their children, was incorrect.
3.3 No opportunity of hearing was granted to the petitioners and that the
order had been passed in breach of the principles of the Natural Justice;
3.4 Petitioner no.2, is cognizant of the consequences of a transplant
surgery, which is borne out from, not only the psychiatric report, but also, the
advice rendered to her by the concerned doctors i.e., Dr. Subash Gupta and
Dr. Manav Wadhawan. It was contended in this regard that, petitioner no.2
was advised even by respondent no.1 pursuant to the order of this court; a fact
which is recorded even in the impugned order of respondent no.1.
3.5 On merits, it was contended by learned counsel for the petitioner that
there was no financial disparity between petitioner no.1 and his family and
that of the respondents family. In this regard, a reference was made to the
Income Tax returns of petitioner no.1 to demonstrate that the gross income of
petitioner no.1, for the Assessment Year 2011-2012 was Rs.4,34,595/-, which
after statutory deductions, was equivalent to Rs.3,19,600/-
3.6 The position for the assessment year prior to the one referred above was
even less rosy, according to the learned counsel, in as much as, the gross total
income of petitioner no.1, for the assessment year 2010-2011, was
Rs.3,84,449/- while the taxable income, after statutory deductions, was
Rs.2,71,550/-. The position in Assessment Year 2009-2010 was more or less
the same. The petitioner no.1, had the gross total income of Rs.5,04,254/-,
while the taxable income was Rs.3,91,360/-.
3.7 As against this, the husband of petitioner no.2, operated two auto
rikshaws; one of which was owned by him and the other rented out by him;
from which he earned an annual income of Rs.1,80,000/-. The donor i.e.,
Petitioner no.2, ran a tiffin service from her house, and had, almost the same
annual income i.e., Rs.1,80,000/-. For this purpose, reliance was placed by
Mr. Mukesh Anand on certificates of Chartered Accountants dated 22.05.2012
and 01.06.2012.
3.8. It was also contended that that even though the recipient had three
children, that is, two daughters and a son (i.e., petitioner no.1), they were not
in a position to donate a part of their liver as their blood group did not match
with that of the recipient. While, the blood group of the recipient, the mother,
was, „O(-) negative‟, the blood group of her children i.e., petitioner no.1 and
one daughter was „A(+) positive‟ and that of the other daughter was „B(+)
positive‟. It is, for this reason, that the family members of the recipient were
unable to donate a part of their liver to the recipient.
3.9. In order to demonstrate, the subsistence of a long relationship between
the recipient's family and that of the donor's family, reliance was placed by
Mr. Anand on the School Leaving Certificates of the three children of the
donor which, evidently bore the address of the house owned by the petitioner.
Reliance in this regard was also placed on photographs and a guarantee card
issued by a Refrigerator company in the name of the husband of the petitioner,
which showed the address of the house owned by petitioner no.1's family.
The purpose was to show that there was a long association by virtue of which,
it was stressed, intense intimacy had developed between the recipient and the
donor - which, was the sentiment, according to the learned counsel, which
propelled the donor, to offer a part of her liver to the recipient.
4. In addition to the above, reliance was also placed on the affidavit of the
donor wherein, she has deposed to the effect that, she has known the recipient
family since 1983, as she resided in the recipient house situate at E-319,
Kamla Nagar, Agra, U.P. The donor in the said affidavit has gone on to state
that she stayed in the recipient‟s house till 2002. It is averred by the donor
that on account of this long association and the affection which the recipient
showed to the donor and her children, the donor and the recipient developed a
mother and daughter relationship. The donor further avers that on becoming
aware of the ailment suffered by the recipient, she voluntarily offered to
donate a part of her liver which, as it turned out had the same blood group, as
that of the recipient. The donor has denied exertion of any coercion or undue
influence on her or that her offer to donate a part of her liver is motivated by
commerce.
4.1 In support of his contentions, Mr Anand strenuously relied upon the
judgment of a Single Judge of this court in the case of Praveen Begum & Anr.
vs Appellate Authority and Anr.
5. On the other hand, the learned ASG relied upon the impugned order to
contend that this was a clear case of financial disparity. The impugned order
is based on the evidence on record placed before respondent no.1 and
therefore, the court ought to sustain the view taken in the impugned order.
5.1 Reliance was placed by the learned ASG on the following judgments:
Kuldeep Singh & Anr. vs State of Tamil Nadu & Ors. (2005) 11 SCC 122;
Poonam Gupta vs State of Punjab & Ors. AIR 2009 P&H 162;
REASONS
6. I have heard the learned counsels for the parties and perused the record.
On perusal of the record, which was furnished in the first round of writ
petition i.e., WP (C) 3848/2012 and the record filed in the captioned writ
petition, the following has emerged :-
6.1 when the matter was taken up by the Authorisation Committee on
07.06.2012, which incidently was the Authorisation Committee of the treating
hospital i.e., the Apollo Hospital, both the recipient and the donor were
personally interviewed. The Authorization Committee comprised of six
persons, out of which four were doctors. The Authorization Committee had
before it the entire record which included the assessment of the treating doctor
i.e., Dr. Subash Gupta and the Centre for Liver and Biliary Surgery. The
committee also had before it, the various NOCs and recommendations issued
in favour of the recipient. This apart, in its record, it also had before it the
psychiatric assessment of the donor. Apart from other documents, there is
also a donor proforma available in the record, which shows, the total income
of the donor as "nil". To be noted, that alongwith this information, there is
also available on record the certificates of the Chartered Accountants
certifying the income of the donor and her husband, to which I have already
made a reference above. The transcript of the interview that the
Authorization Committee had with the recipient, petitioner no.1, the donor
and her husband is also on record. The photographs filed by the recipient's
family are also found on record.
6.2. The Authorisation Committee after due consideration of this entire
body of evidence concluded that there was a "Master" and a "Caretaker"
relationship between the recipient's family and that of the donor. It was the
Authorisation Committee's assessment that there was gross financial disparity
between the donor and the recipient. Respondent no.1, in first appeal, vide its
order dated 21.06.2012 more or less came to the same conclusion when it
stated that the relationship between the donor and recipient was not based on
the love and affection. Since, petitioner no.1 had not been given a personal
hearing, I had remanded the matter to respondent no.1 for a de novo hearing.
6.3 On remand, contrary to what has been submitted before me by Mr.
Anand, the impugned order clearly shows that a personal hearing was
accorded to the petitioners on 21.08.2012 under the chairmanship of Dr. N.K.
Mohanty. Therefore, the suggestion to the contrary in the writ petition is
wholly untenable. It appears that this ground has crept in as the petitioner
appears to have lifted the ground of challenge which they have formulated in
the petition filed in the first round.
6.4. A perusal of the impugned order would show that the donor's husband
came in contact with the recipient's husband in early 1980's when he would
transport the recipient's husband to and fro from his home to office and back.
It appears that in and around 1983, the recipient's house which is located at E-
319, Kamla Nagar, Agra was under construction and required a caretaker.
This is where, the donor's husband stepped in and was thus tasked with the job
of looking after the house, in return, the donor's family was housed therein.
6.5 The donor has deposed before the Authorisation Committee that her
family continued to stay in the recipient house in Kamla Nagar, Agra between
1983 to 2002. After 2002, the donor's family moved to Ishwar Nagar in Agra,
as the tiffin service which the donor ran from Kamla Nagar, Agra, did not do
well. What is also come through in the statements of the donor is that she has
a large family, comprising of five children, out of which two are married. The
certificates of Chartered Accountants submitted on behalf of the donor's
family shows that the donor family annually earns an income of Rs.3,60,000/-
with which they are required to take care of rent, food, clothing, fee for three
children as also expenses which may have to incur from time to time for
medical care.
6.6. As against this, petitioner no.1 has income from salary and other
sources. Petitioner no.1's family also has assets in the form of their own
house, with large accommodation comprising of seven rooms. The recipient‟s
husband, evidently, retired from State Trading Corporation Ltd. as an
Assistant Manager. The recipient's two daughters are married. The
assessment of the Authorisation Committee that the recipient and the donor
belonged to a different social milieu, is demonstrable by the following
answers to the questions raised by one of the Members of the said
Authorisation Committee.
"..Member : Kaise, aap kaise inke contact me aaye? Kaise
dhoonda aapne inko?
Donor : Nahin dhunda, nahin, hamare auto chalte the
na to inka jo baau ji hai na baau ji ko le jaane
lane karte the, hamare pati school ke bachhe
vachhe chodte the.
Member : Auto chalate the?
Donor : Ji abhi bhi chalate hai
Member : Abhi bhi chalate hai, vo jo teen pahiye wala
hota hai?
Donor : Ji wahi chalate hai..."
6.7. Furthermore, a careful perusal of the following extracts of the interview
had with the donor would cast doubt about the assertion that there has been a
long association between the families of the recipient and the donor or that
there is financial parity between the two families. With respect to the first
aspect, questions were asked of the donor to the effect that having contended
that her family had stayed in the Kamla Nagar house for 16 years, she would
have got herself a ration card issued. The answer of the donor was as
follows :-
"..Member : Kitne din rahi?
Donor : Yeh 16 saal tak
Member : 16 saal rahi uska koi ration card hai koi?
Donor : Ration crad wahan nahi banwayi thi
Member : Kyun?
Donor : Ration cad wahan nahi banwayi thi.
Member : Kyon?
Donor : Ration card yahan aakar banwai.
Member : Wahan par ration card kyun nahi banwaya?
Donor : Iss liye kyuki yahan rahne ka mann nahi tha
Member : 16 saal aap wahan rahi scooter khareda inn
16 saal mein uske kagaz toh bane honge na,
ration card ke bina thodi hoga
Donor : Auto jo kharida thi who kisi ke naam par nhi,
kisht mein kharidi thi.
Member : Apne naam par nahi kharida????
Donor : Nahi, kisht pure hoga tabhi to humara.....
Member : Abhi kaha rehte ho????
Donor : Abhi main reh rhi hu kakreta, Ishwar Nagar
Kakreta.
Member : Kiraye ka makan hai aapka
Donor : Ji
Member : Kitna kiraya dete hai?
Donor : 1500, 2000
Member : 1500 dete ho 2000?
Donor : 2000 deti hu
Member : 2000 deti hai, aap kaam kya karti hai?..."
6.8. As to the donor's present vocation and the amount she earned, her
responses were as follows :-
"...Member : Tiffin ka matlab?
Donor : Student wagarah, jaise office wagarah khana
iss type ka
Member : Ghar par banati hai aur tiffin bhejti hai
Donor : Haan ji, bache school se aate hai unhe kahti
hu tiffin chodh aao.
Member : Kite tiffin hote hai roj ka?
Donor : 15, 20, 40 aise ho jata hai
Member : Kite paise leti ho
Donor : Ek ka 40 rupay leti hu. Aur meetha kuch
rakh deti hu to 50 ho jata hai.
Member : Aur aapke husband tiffin le jate hai
Donor : Ji main aur 2 rakh liya jaisa helper hota hai no
kam krne k liye use aur badhti ja rahi hai...".
6.9. Having regard to the above, it is quite clear that the Authorisation
Committee's assessment with regard to the glaring gap in the social and
financial status of the recipient's family and that of the donor's family, is not
incorrect. This very body of evidence has also been examined by respondent
no.1. Having regard to the above, one cannot find fault with the conclusion
of the authorities below that the offer of donation of a part of her liver by
petitioner no.2 i.e., the donor is not propelled by "love and affection".
7. It would, not be out of place to mention that, both the preamble of the
Transplantation Act as well as the provision of section 9 of the said Act,
proclaim and therefore, prohibit "commercial dealings" in human organs.
There will rarely be direct evidence with regard to "commercial dealings".
Commercial dealings necessarily have to be inferred from facts and
circumstances, obtaining in each case.
7.1. While section 9(3) of the Transplantation Act, permits donation by a
person other than a "near relative", for reasons of affection or attachment
towards a recipient or for any other special reason - such a donation, which
involves removal of an organ from the donor, prior to his death, and its
transplantation in the body of the recipient requires prior approval of the
Authorization Committee.
7.2. Therefore, the assessment of the authorities below which includes the
Authorization Committee and respondent no.1 attains significance. I found
nothing on record which would have me come to a conclusion different from
one which has been arrived at by the authorities below. In these
circumstances, I am of the view that the writ petition will have to be
dismissed, and consequently, the orders of the authorities below sustained. It
is ordered accordingly.
7.3 Before I conclude, I must also deal with the judgment of a Single Judge
of this court in the case of Parveen Begum & Anr. vs Appellate Authority &
Anr., which was cited by Mr Anand in support of his contention. A careful
perusal of the judgment would show that the court overturned the order of
Authorization Committee rejecting the application, on the ground that the
Authorization Committee had misdirected itself by carrying out its enquiry on
aspects which were not germane, i.e., to the provisions of the Transplantation
Act and the rules framed thereunder. The Authorization Committee sought to
direct its enquiry substantially to seek answers from the recipient as to why
her relatives had not come forth to make the donation; disregarding the fact
that the donor was infact a relative (the donor‟s mother and recipient were
sisters) and that the Transplantation Act did not prohibit receipt of donation
from a person other than a near relative, as long as, it was made on account of
love and affection or for other special reasons. The special reasons, would
necessarily not include commerce. In my view, the judgment ultimately
turned on its own facts; as would be the case in most such cases.
8. Having come to the conclusion which I have above, I make it clear that
the dismissal of the writ petition will not come in the way of the petitioner
no.1 and / or the recipient attempting to enter into a swapping transaction with
relatives of similarly circumstanced families of patients who are willing to
donate a part of their liver which matches the blood group of the recipient in
the present case. A perusal of the statement of the petitioner no.1 made before
the Authorization Committee is indicative of the fact that the recipient‟s
family have enlisted themselves for a swapping arrangement with the
concerned hospital.
9. This apart, I also deem it fit to issue directions to the respondents to file
an affidavit before this court as to the policy which is been put in place by
the Government of India, Ministry of Health and Family Welfare with regard
to organs harvested from cadavers. The affidavit will also disclose as to
whether information with regard to swapping requests and donation of organs
from cadavers are uploaded on official website. More than any other area of
human concern, there is an urgent need to inculcate complete transparency,
accountability and general awareness in the citizenary at large, in this area, by
the State. This affidavit be filed within one week from today.
10. With the aforesaid directions, the writ petition is disposed of.
11. List for directions on 08.10.2012.
12. Dasti to both parties, under the signatures of the Court Master.
RAJIV SHAKDHER, J
OCTOBER 01, 2012
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