Ayishamol V. vs The State Of Kerala
2021 Latest Caselaw 6206 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

                       WP(C).No.161 OF 2021(U)

PETITIONERS:

      1        AYISHAMOL V., AGED 41 YEARS, W/O.HYDERALI, PARATHODI
               HOUSE, KONDOORKARA P.O., KALLADIPATTHA, PATAMBI,
               PALAKKAD DISTRICT, PIN-679 313.

      2        AMBILY, AGED 43 YEARS,
               W/O.SHAJUMON, RAJEEV COLONY, KOMANA P.O.,
               AMBALAPUZHA, ALAPPUZHA DISTRICT, PIN-688 561.

               BY ADVS.
               SRI.K.V.JAYADEEP MENON
               SRI.T.P.RAMESH (THENGUMPILLIL)
               SMT.P.KRISHNAPRIYA
               SRI.VINEETH.K.MOHANAN

RESPONDENTS:

      1        THE STATE OF KERALA,
               REPRESENTED BY THE SECRETARY, HEALTH DEPARTMENT,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM, PIN - 695 001.

      2        THE DISTRICT LEVEL AUTHORIASATION COMMITTEE FOR RENAL
               TRANSPLANTATION,
               REPRESENTED BY ITS CHAIRMAN, THE PRINCIPAL,
               GOVERNMENT MEDICAL COLLEGE, THRISSUR,
               MEDICAL COLLEGE P.O.,
               THRISSUR DISTRICT, PIN - 680 596.

      3        THE LOCAL LEVEL COMMISSIONER FOR RENAL
               TRANSPLANTAGION,
               REPRESENTED BY ITS CHAIRMAN/MEDICAL DIRECTOR,
               WEST FORT HI-TECH HOSPITAL LTD,
               TMC 1/1536 OF THRISSUR CORPORATION, PUMKUNNAM,
               THRISSUR DISTRICT, PIN - 680 002.

      4        THE DEPUTY SUPERINTENDENT OF POLICE,
               ALAPPUZHA DISTRICT, PIN - 688 012.

               BY ADV. SMT.PRINCY XAVIER, GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION           ON
22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.161 OF 2021(U)

                                  2



                           JUDGMENT

The writ petition is filed

challenging Ext.P8 proceedings of the 2nd

respondent rejecting the Authorisation

Certificate for transplantation of kidney

for the 1st petitioner from the donor - the

2nd petitioner.

2. The 1st petitioner, who is a chronic

kidney patient of stage V, has been under

treatment in the Medical Trust hospital.

It is stated that the 2nd petitioner

voluntarily came forward to donate her one

kidney to the 1st petitioner and thereafter

they submitted joint application before

the 3rd respondent along with Ext.P3 joint

affidavit, Ext.P4 medical fitness of the

1st petitioner, Ext.P5 certificate issued

by the President of the Ambalapuzha South WP(C).No.161 OF 2021(U)

Grama Panchayat, Ext.P6 certificate issued

by the President of Ongallur Grama

Panchayat, etc. It is stated that as per

Ext.P8 proceedings dated 09.11.2020, the

2nd respondent rejected the Authorisation

Certificate, on the basis of Ext.P7 report

submitted by the 4th respondent.

3. In Ext.P7 report of the DySP,

Alappuzha, it was stated that the matter

was inquired into through the Station

House Officer, Ambalapuzha Police Station,

who furnished a report, stating that the

2nd petitioner had submitted an application

for donating one of her kidneys to

Mrs.Celin Sara Stephen in January, 2020;

but that was rejected due to mismatching

found in the last time check up. She

stated that when she was at the hospital, WP(C).No.161 OF 2021(U)

for this purpose she got acquainted with

the 1st petitioner, who was under treatment

there and she expressed her willingness to

donate one of her kidneys to her, due to

her affection towards the 1st petitioner.

SHO reported that the financial background

of the family of 2nd petitioner is poor.

The SHO suspected that there is some other

motive behind the donation of kidney, as

she has submitted two applications for

donating kidney in the recent time and

therefore he did not recommend the request

for transplantation. The DySP forwarded

the report of the SHO, Ambalapuzha along

with the statements he had taken.

4. After examining the matter with

reference to relevant materials, the 2nd

respondent found it not feasible to grant WP(C).No.161 OF 2021(U)

authorisation. The Committee arrived at

the finding that there was no compliance

with Rule 7 Sub Rule (3)(1) to (VI) of the

Transplantation of Human Organs and

Tissues Rules, 2014 (2014 Rules) and

provisions contained in 1994 Act.

Producing Ext.P9 certificate obtained from

the President of the Ongallur Grama

Panchayat, the petitioners have approached

this Court stating that there was a

mistake in Ext.P6 certificate issued by

the President of the Panchayat on

24.07.2020 in stating that the 2nd

petitioner had been residing in the

quarters of the 1st petitioner for six

years and that Ext.P9 certificate is

issued correcting that mistake, stating

that she had been residing there only for WP(C).No.161 OF 2021(U)

the last six months.

5. The learned counsel for the

petitioner argued that the 2nd respondent

rejected the Authorisation Certificate

only because of the Police report as well

as Ext.P6 certificate of President of

Ongallur Panchayath, relating to the

acquaintance of the donor with the donee

and Ext.P9 certificate obtained after the

rejection in Ext.P8 would show the

genuineness of the application submitted

before the Committee.

6. The 2nd respondent has filed a

statement supporting the findings and

referring to the report submitted by the

4th respondent. It is stated that the SHO,

who made inquiry, suspected that the donor

has some other motive behind the kidney WP(C).No.161 OF 2021(U)

donation and hence did not recommend the

transplantation request, pointing out the

financial background of the 2nd petitioner

also, who had submitted two applications

for donating kidney in the recent time.

It is stated that there was disparity in

the statement given by the donor and her

husband before the Committee and also the

documentary evidence submitted before the

West Fort Hi-tech Hospital for

establishing the link between donor and

recipient. It is stated that the donor had

given a false statement about the link

between donor and recipient. As per

donor's statement on interview with

Committee members and agreement submitted

by donor, her willingness for donating

kidney to Mrs.Celin Sara Stephen was WP(C).No.161 OF 2021(U)

rejected due to mismatching and when she

was at the hospital for this, she got

acquainted with the 1st petitioner, who was

then under treatment at Medical Trust

Hospital, Ernakulam and it is thereupon

she expressed her willingness to donate

kidney. Moreover, the President of

Ongallur Grama Panchayat certified that

the donor Ambily has been staying at the

quarters owned by the 1st petitioner for

around six years. It is stated that the

certificate issued subsequent to the

rejection were not produced before the

District Level Authorisation Committee.

However, the Committee was convinced of

the reasons placed before it and there was

no explanation for the link between the

donor and recipients.

WP(C).No.161 OF 2021(U)

7. Heard the learned Counsel for the

petitioner and the learned Government

Pleader. According to the learned counsel

for the petitioner, the 2nd respondent has

rejected the Authorisation Certificate

only because of the erroneous certificate

issued by the President of the Grama

Panchayat. When he has corrected that

mistake in Ext P9 revised certificate, the

2nd respondent has to reconsider the

application based on that.

8. The petitioners are challenging the

correctness of the findings of the 2nd

respondent Committee. The transplantation

of human organs including kidney is

governed by "The Transplantation of Human

Organs and Tissues Act, 1994" (herein

after referred to as '1994 Act' in short) WP(C).No.161 OF 2021(U)

and "The Transplantation of Human Organs

and Tissues Rules, 2014" (herein after

referred to as '2014 Rules' in short). One

of the objects behind the enactment of

1994 Act, is to ensure prevention of

commercial dealings in human organs and

tissues. The provisions in the Act were

amended and the 2014 Rules were introduced

in the background of widespread reports

regarding commercial dealings in human

organs and tissues.

9. In order to determine the issue

raised by the petitioner it is necessary

to have a look at the relevant provisions

in the Act and Rules. Subsection 3, 5 and

6 of Section 9 of the 1994 Act and ,

reads as follows:

"9. Restrictions on removal and transplantation of human organs or tissues WP(C).No.161 OF 2021(U)

or both:

xxxx (3) If any donor authorises the removal of any of his human organs or tissues or both before his death under sub-section (1) of Section 3 for transplantation into the body of such recipient not being a near relative as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ or tissue or both shall not be removed and transplanted without the prior approval of the Authorisation Committee.

xxx (5) On an application jointly made in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorisation Committee shall, after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act and the rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ or tissue or both.

(6) If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act WP(C).No.161 OF 2021(U)

and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval."

10. As per subsection 5 of section 9

the Authorisation Committee is bound to

conduct an inquiry and to take a decision

on the application for grant of approval

for removal and transplantation of human

organs after holding an inquiry. Such

approval can be granted only on being

satisfied that the applicants have

complied with all the requirements under

the Act. Section 9(6) provides that the

Authorisation Committee would be free to

reject the application for removal, if

after the inquiry or after giving an

opportunity to the applicants of being

heard, it is satisfied that the applicants

have not complied with the requirements of WP(C).No.161 OF 2021(U)

the Act and rules. Rule 7(3) of the Rules

2014 provides for the procedure to be

followed by the Authorisation Committee in

a case where the proposed donor or the

recipient are not near relatives. Sub rule

3 of Rule 7 reads as follows:

"(3) When the proposed donor and the recipient are not near relatives, the Authorisation 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;

WP(C).No.161 OF 2021(U)

(vii)evaluate that financial status of the donor and the recipient by asking them to give appropriate evidence of their 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 dealing;

(viii)ensure that the donor is not 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 views or disagreement or objection of such kin shall also be recorded and taken note of."

11. The findings of the committee are

to be considered in the light of the

aforesaid provisions in the Act and Rules.

In Ext.P8, the 2nd respondent found as WP(C).No.161 OF 2021(U)

follows:

"There is a disparity of statement given by the donor and her husband before committee and documentary evidence submitted through West Fort Hi-tech Hospital for establishing the link between the donor and recipient. Donor gave false statement about the link between donor and recipient. As per donor's statement on interview with committee members and agreement submitted by donor, she states that her willingness for donating kidney to Mrs.Celin Sara Stephen was rejected due to mismatching during last time check up and when she was at hospital she get acquainted with Mrs.Ayisha Mol who was under treatment at Medical Trust Hospital Ernakulam and due to the affection towards Mrs.Ayisha Mol, she expressed her willingness to donate one of her kidneys to her. Sri.Jishar Parambil, President Ongallur Grama Panchayath certified that proposed donor Smt.Ambily is staying at a quarter under the ownership of recipient Ayisha Mol for around 6 years."

         12. The            very               purpose                 behind
 WP(C).No.161 OF 2021(U)



    constitution            of    Authorisation            Committees

is to see that the there is no trade or

commercial dealings involved in respect of

transplantation of human organs. Though

the 1st petitioner is in dire need of

kidney transplantation, this Court cannot

permit a transplantation from a person,

whose bonafides are suspected by the

Committee. The certificate of the

President of the Panchayat alone, was not

the material before the Committee for

coming to the conclusion to reject

Authorisation Certificate. The statement

made by the donor as well as her husband

and the donor's attempts for donating

kidney for different persons in a short

interval was also taken note of the

Committee.

WP(C).No.161 OF 2021(U)

In the above circumstances, I find

that this Court would not be justified in

interfering with the findings of the

Committee, which has on the basis of

materials before it, found it not proper

to issue a certificate.

Accordingly, the writ petition is

dismissed.

Sd/-

P.V.ASHA JUDGE WW WP(C).No.161 OF 2021(U)

APPENDIX PETITIONERS' EXHIBITS:

EXHIBIT P1 A TRUE PHOTOCOPY OF THE JOINT APPLICATION IN FORM-3 OF THE TRANSPLANTATION OF HUMAN ORGANS AND TISSUES RULES, 2014 DATED 13.07.2020 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.

EXHIBIT P2 A TRUE PHOTOCOPY OF THE APPLICATION FOR THE APPROVAL OF TRANSPLANTATION FROM LIVING DONOR UNDER FORM 11 OF THE TRANSPLANTATION OF HUMAN ORGANS AND TISSUES RULES, 2014 SUBMITTED BY THE PETITIONERS TO THE 3RD RESPONDENT.

EXHIBIT P3 A TRUE PHOTOCOPY OF THE AFFIDAVIT DATED 09.10.2020 SUBMITTED BY THE 2ND PETITIONER TO THE 3RD RESPONDENT.

EXHIBIT P4 A TRUE PHOTOCOPY OF THE CERTIFICATE OF MEDICAL FITNESS OF THE 1ST PETITIONER DATED 17.10.2020 SUBMITTED TO THE 3RD RESPONDENT.

EXHIBIT P5 A TRUE PHOTOCOPY OF THE CERTIFICATE DATED 23.07.2020 ISSUED BY THE PRESIDENT OF AMBALAPUZHA SOUTH GRAMA PANCHAYATH.

EXHIBIT P6 A TRUE PHOTOCOPY OF THE CERTIFICATE DATED 24.07.2020 ISSUED BY THE PRESIDENT OF ONGALLUR GRAMA PANCHAYATH.

EXHIBIT P7 A TRUE PHOTOCOPY OF THE LETTER DATED 24.09.2020 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.

EXHIBIT P8 A TRUE PHOTOCOPY OF THE AUTHORISATION CERTIFICATE DATED 09.11.2020 REJECTING THE CASE ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P9 A TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE PRESIDENT OF ONGALLUR GRAMA PANCHAYATH AFTER CORRECTING THE MISTAKE SUBMITTED TO THE 2ND RESPONDENT.

EXHIBIT P10 A TRUE PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 12.12.2020 ISSUED FROM THE CONSULTANT NEPHROLOGIST OF THE 3RD RESPONDENT.