Kerala High Court
Hamza M vs State Of Kerala on 19 June, 2025
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W.A No.1455 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
WA NO. 1455 OF 2025
AGAINST THE JUDGMENT DATED 11.06.2025 IN WP(C)
NO.18316 OF 2025 OF HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 HAMZA M.
AGED 47 YEARS
S/O. MOIDEEN, MOOCHITHODI HOUSE, OORAKAM,VENGARA P.O.,
MALAPPURAM DISTRICT, PIN - 676519
2 SHAJI M.K.
AGED 42 YEARS
S/O. K.A.KUMARAN, MEKKARAVELI LAKSHAMVEEDU, PALLIPPURAM
P.O., PANAVALLY, CHERTHALA TALUK, ALAPPUZHA DISTRICT,
PIN - 688541
BY ADVS.
SRI.C.M.MOHAMMED IQUABAL
SHRI.ISTINAF ABDULLAH
SRI.P.ABDUL NISHAD
SMT.SURYA S.R.
SMT.THASNEEM A.P.
SHRI.SUBRAHMANIAN T.
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RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO HEALTH
DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 THE PRINCIPAL SECRETARY
DEPARTMENT OF HEALTH, GOVERNMENT OF KERALA, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
3 THE CONVENER
STATE LEVEL TECHNICAL COMMITTEE, FUNCTIONING UNDER
KERALA STATE ORGAN AND TISSUE TRANSPLANT ORGANIZATION,
1ST FLOOR, OLD HOUSE SURGEON QUARTERS, NEAR SUPER
SPECIALITY BLOCK, GOVERNMENT MEDICAL COLLEGE,
THIRUVANANTHAPURAM, PIN - 695011
4 THE DISTRICT LEVEL AUTHORIZATION COMMITTEE FOR
TRANSPLANTATION OF HUMAN ORGANS ERNAKULAM
REPRESENTED BY ITS CHAIRMAN, GOVERNMENT MEDICAL
COLLEGE, MEDICAL COLLEGE P.O., THRISSUR DISTRICT, PIN -
680596
BY SRI.K.P HARISH, SR. GOVT. PLEADER
SRI.AJIT JOY, SC.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
17.06.2025, THE COURT ON 19.06.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Sushrut Arvind Dharmadhikari, J.
The present intra-court appeal under Section 5 of the Kerala
High Court Act, 1958 assails the judgment dated 11.06.2025
passed in W.P.(C) No.18316 of 2025 whereby the learned Single
Judge has dismissed the writ petition.
2. The brief facts of the case are that the 1st appellant is a
kidney patient undergoing treatment at the West Fort Hospital,
Thrissur. The 2nd appellant is a person who has come forward to
donate his kidney to the 1st appellant. The appellants have
challenged Ext.P7 rejection order dated 13.02.2025 wherein
permission has been refused for the followings reasons:
"1. Discrepancies in Statements: The
statement provided by the recipient's representative,
donor and the donor's representative contain significant
inconsistencies. In particular, there is a notable
mismatch in the information regarding the period during
which the donor worked. These discrepancies raise
serious concerns regarding the authenticity of the
documents submitted.
2. False Story by the Donor: Upon review, it
appears that the donor's account is not truthful, casting
doubt on the legitimacy of the entire transplantation
process.
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3. Lack of Proper Documentation: The
necessary and proper documentation required to
substantiate the transplantation request has not been
provided. The absence of key documents is a significant
failure in compliance with the regulatory and procedural
guidelines for kidney transplantations.
4. Non-Genuine Documents: Certain
documents submitted appear to be non-geuine, further
undermining the credibility of the application and the
intention to proceed with the transplant.
5. Failure to Establish Emotional Bond: The
donor and the donor's representative failed to establish
a clear and strong emotional bond with the recipient,
which is a key criterion for approval of kidney
transplantation under the applicable guidelines.
6. Lack of Clear Link between Donor and
Recipient:Despite the requirement to establish a direct
and genuine emotional connection, the donor's
relationship with the recipient has not been sufficiently
demonstrated, leading to concerns about the legitimacy
of the donation.
Hence the committee unanimously rejected the case".
The appellants have also challenged Ext.P10 appellate order dated
26.04.2025 rejecting their appeal petition.
3. Learned counsel for the appellants contended that the
4th respondent-District Level Authorisation Committee, while
taking a decision as per Ext.P7, has not disclosed the reasons as
to why the request is being rejected, which provision of the Rules
and Regulations has not been complied and which are the
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documents which have not been annexed along with the
application. Even the appellate order dated 26.04.2025 does not
deal with the issues raised in the appeal, meaning thereby both
the orders are non speaking and therefore, they are liable to be
set aside and the matter needs to be remanded to the District
Level Authorisation Committee for fresh adjudication, after giving
opportunity to the appellants to submit all the documents and
thereafter consider the same as expeditiously as possible.
Learned counsel for the appellants further submitted that the
appeal has been rejected in a summary manner. No commercial
transaction has been found between the parties. The health
condition of the 1st appellant is very bad and if transplantation is
delayed, the 1st appellant would be subjected to irreparable loss.
4. Per contra, learned counsel for the respondents resisted
the submissions of the learned counsel for the appellants and
contended that during interaction with the 2nd appellant, he
wanted to withdraw his consent to donate his kidney to the 1st
appellant. In view of the aforesaid, after analysing the facts
emerged during hearing the donor and the recipient's
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representative, the Authorisation Committee recommended that
the donation cannot be allowed. Therefore, on the basis of the
recommendations of the Authorisation Committee, the appeal has
also been rejected. In such a situation, no interference is called
for and the writ appeal deserves to be dismissed.
5. Heard Sri.C.M.Mohammed Iquabal, learned counsel for
the appellant, Sri.K.P Harish, learned Senior Government Pleader
for respondents 1 and 2 and Sri.Ajit Joy, learned Standing Counsel
for respondents 3 and 4.
6. Admittedly, on a perusal of Exts.P7 and P10 orders, it
can be seen that no specific reasons have been assigned for
coming to the conclusion. Both the orders are non speaking.
Even the Appellate Authority did not consider the grounds raised
in the appeal.
7. The 2nd appellant stated in the court that he is ready to
donate kidney, without any undue influence and without there
being any commercial transaction, to a friend who is on the verge
of his death. In such a situation, the authorities ought to have
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assigned proper reasons and passed a speaking order which has
not been done in this case.
8. Accordingly, in the interests of justice, we are of the
considered opinion that Ext.P7 order dated 13.02.2025 as well as
Ext.P10 order dated 26.04.2025 deserve to be and are hereby set
aside. The matter is remanded back to the 4th respondent District
Level Authorisation Committee to consider the application afresh,
in accordance with law. The Authorisation Committee shall permit
the 2nd appellant to submit all the required documents, if
demanded. They shall reconsider the matter afresh, after hearing
all concerned, and pass a reasoned and speaking order. The
appellants shall approach the Authorisation Committee within a
period of seven days from today. If the appellants approach the
4th respondent Authorisation Committee within the aforesaid
period, they shall consider the application afresh and take a
decision within a period of ten days thereafter.
As a consequence of the aforesaid directions being issued by
this Court, the judgment passed by the learned Single Judge
dated 11.06.2025 in W.P(C) No.18316 of 2025 is set aside and
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the writ appeal stands allowed to the extent indicated herein
above.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M
JUDGE
smp
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PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE AFFIDAVIT OF THE 2ND
APPELLANT DATED 12.06.2025
