Sameer Muhammed, S/O Muhammed ... vs State Of Kerala
2023 Latest Caselaw 5775 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
                   WP(C) NO. 15989 OF 2023
PETITIONERS:

    1     SAMEER MUHAMMED, S/O MUHAMMED ISMAIL,
          THOKKAYIL (H), KILIMONOOR P.O, TRIVANDRUM
          REPRESENTED BY HIS UNCLE NOWSHAD K.A
          AGED 56 YEARS, KIZHAKKETHIL,
          ELLIKKAL KUZHINJAR ROAD, KUMMANAM P.O,
          CHEGALAM SOUTH, KOTTAYAM, PIN - 686022
    2     ANEESH
          AGED 33 YEARS, S/O ANDREWS, MALLOOR VEEDU,
          KOVILTHOTTAM P.O, PANMANA, CHAVARA,
          SANKARAMANKALAM, KOLLAM, PIN - 691583
          BY ADVS.M.A.SULFIA
          ABDUL JALEEL.A
          THUSHARA C. PULICKEL

RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
          HEALTH AND FAMILY WELFARE DEPARTMENT,
          SECRETARIATE, THIRUVANANATHAPURAM, PIN - 695001
    2     THE DISTRICT LEVEL AUTHORISING COMMITTEE,
          CONSTITUTED UNDER THE TRANSPLANTATION OF HUMAN
          ORGANS AND TISSUES ACT
          REPRESENTED BY THE PRINCIPAL
          GOVERNMENT MEDICAL COLLEGE, KALAMASSERY
          ERNAKULAM, PIN - 683503
    3     THE DIRECTOR- NEPHROLOGY AND CHIEF OF RENAL
          TRANSPLANT SERVICE
          LAKESHORE HOSPITALS AND RESEARCH CENTRE LTD,
          NATIONAL HIGHWAY-47 BYPASS, MARADU, NETTOOR,
          KOCHI, PIN - 682040
    4     LOCAL APPROVAL COMMITTEE OF ORGAN TRANSPLANTATION
          LAKESHORE HOSPITALS AND RESEARCH CENTRE LTD,
          NATIONAL HIGHWAY-47 BYPASS, MARADU, NETTOOR,
          KOCHI, REPRESENTED BY ITS CONVENER., PIN - 682040
          BY ADVS.
          P.BENNY THOMAS
          D.PREM KAMATH(K/1285/1998)
 WP(C).No.15989/2023

                             2



           TOM THOMAS (KAKKUZHIYIL)(K/000821/2008)
           ABEL TOM BENNY(K/1381/2018)
           AARON ZACHARIAS BENNY(K/001533/2023)
           K.S.MUHAMMED SHEFIN(K/002107/2021)
           AMRUTHA SELVAM(K/001249/2023)
           VIDYA KURIAKOSE, GP


    THIS WRIT PETITION (CIVIL) HAVING COME UP
FOR ADMISSION ON 24.05.2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.15989/2023

                                    3




                     P.V.KUNHIKRISHNAN, J.
                      --------------------------------
                     W.P.(C).No.15989 of 2023
               ----------------------------------------------
              Dated this the 24th day of May, 2023


                             JUDGMENT

This writ petition is filed with following prayers:

i. To call for records leading to the issuance of Exhibit P2 and P4 and issue of a writ of certiorari or any other writ, order or direction and quash Exhibit P2 rejection certificate and P4 Government Order.

ii. To grant permission for the transplantation of kidney at the earliest possible time, considering the deteriorating health condition of the recipient. iii. To dispense with production of English translation of vernacular documents.

vi. To pass any other orders as this Honourable Court deem fit to pass in the nature and circumstances of the case.

(SIC)

2. The 1st petitioner is suffering from chronic kidney

disease. The 2nd petitioner decided to donate her kidney to the

1st petitioner. The 2nd petitioner is not a relative of the 1 st

petitioner. In such circumstances, the petitioners submitted WP(C).No.15989/2023

an application before the 2nd respondent seeking permission of

for transplantation. The same was rejected as per Ext.P2. The

petitioners submitted an appeal before the appellate authority

and the appellate authority dismissed the same as per Ext.P4.

Aggrieved by the same, this writ petition is filed.

3. Heard the learned counsel for the petitioners and

the learned Government Pleader.

4. This Court considered the contentions of the

petitioners and the respondents. Ext.P2 is the order passed by

the original authority. The reason mentioned in Ext.P2 to

reject the application is as follows: "Totally unrelated donor

and recipients. Very contradictory statements, money

transaction also suspected." The appellate authority, after

extracting Rule 7(3) of the Transplantation of Human Organs

and Tissues Rules, 2014 (for short, Rules 2014), reiterated the

findings in Ext.P2 and dismissed the appeal. I am of the

considered opinion that the original authority and the

appellate authority have not considered the factors mentioned

in Clauses (i) to (ix) of Rule 7(3) of Rules 2014. A speaking

order is necessary from the side of the original authority. The

appellate authority can only consider the materials available WP(C).No.15989/2023

from the original authority. In such circumstances, when an

application is filed, the original authority has to consider all

the aspects and also the materials available, and pass orders

strictly in accordance with Clauses (i) to (ix) of Rule 7(3) of

Rules 2014. Therefore, I am of the considered opinion that

Ext.P2 is not a speaking order. To facilitate the original

authority to pass fresh orders, Exts.P2 and P4 can be set

aside.

Therefore, this writ petition is allowed in the following

manner:

1. Exts.P2 and P4 are set aside.

2. The 2nd respondent is directed to reconsider the

application, as expeditiously as possible, at any

rate, within three weeks from the date of receipt

of a stamped certified copy of this judgment.

3. The petitioner will produce a stamped certified

copy of this judgment along with a copy of this

writ petition before the 2nd respondent for

compliance.

sd/-

P.V.KUNHIKRISHNAN JV JUDGE WP(C).No.15989/2023

APPENDIX OF WP(C) 15989/2023

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE AUTHORIZATION LETTER DATED 8/11/2022 PRODUCED BY SAMEER MUHAMMED BEFORE THE CHAIRMAN, ZONAL AUTHORIZATION COMMITTEE FOR HUMAN ORGAN TRANSPLANTATION, GOVERNMENT MEDICAL COLLEGE, ERNAKULAM Exhibit P2 THE TRUE COPY OF THE CERTIFICATE DATED 25/01/2023 ISSUED BY 2ND RESPONDENT Exhibit P3 THE TRUE COPY OF THE APPEAL DATED 01/02/2023 FILED BY PETITIONERS ALONG WITH ITS ACKNOWLEDGMENT Exhibit P4 THE TRUE COPY OF THE G.O (RT) NO.

521/2023/H&FWD DATED 07/03/2023 Exhibit P5 THE TRUE COPY OF THE JOINT AFFIDAVIT DATED 31/08/2022 FILED BY PETITIONERS STATING THEIR RELATION BETWEEN PETITIONERS Exhibit P6 THE TRUE COPY OF THE CONSENT LETTER DATED 31/08/2022 BY 2ND PETITIONER/DONOR STATING HIS RELATION WITH RECIPIENT Exhibit P7 THE TRUE COPY OF THE POLICE VERIFICATION/CERTIFICATE OF ALTRUISM DATED NIL Exhibit P8 THE TRUE COPY OF THE INCOME CERTIFICATE DATED 16/08/2022 ISSUED BY THE VILLAGE OFFICER CONCERNED TO 1ST PETITIONER Exhibit P9 THE TRUE COPY OF THE INCOME CERTIFICATE DATED 15/09/2022 SHOWING THE INCOME OF DONOR/2ND PETITIONER ISSUED BY THE VILLAGE OFFICER CONCERNED TO 2ND PETITIONER