Suresh Garg vs The State Of Madhya Pradesh
2022 Latest Caselaw 12712 MP

                                              W.P. No.21660/2022
                              1




        IN THE HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR
                            BEFORE
     HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                ON THE 22nd OF SEPTEMBER, 2022
            WRIT PETITION No. 21660 of 2022
        BETWEEN:-
1.      SURESH GARG S/O LAE SHRI BADRI
        PRASAD GARG, AGED ABOUT 56
        YEARS, BUSINESS R/O KASIM KHAN KA
        BADA DAL BAZAR LASHKAR GWALIOR
        R/O 123 REVERA TOWN T.T NAGAR
        BHOPAL (MADHYA PRADESH)



2.      RAMPRASAD       PANDEY    S/O  SHRI
        RADHESHYAM PANDEY, AGED ABOUT
        39 YEARS, OCCUPATION: PRIVATE JOB
        R/O 132, JASMIN VILLA, NEAR MOTHER
        TERESA SCHOOL, KOLAR ROAD,
        BHOPAL (MADHYA PRADESH)



                                              .....PETITIONER
        (BY SHRI KAPIL SHARMA- ADVOCATE )
        AND
1.      THE STATE OF MADHYA PRADESH
        THROUGH       THE     PRINCIPAL
        SECRETARY DEPARTMENT OF PUBLIC
        HEALTH AND FAMILY WELFARE M.P
        GOVT. BHOPAL (MADHYA PRADESH)



2.      SIDDHARTH HOSPITAL , THROUGH ITS
        MANAGING DIRECTOR RED CROSS
        BHAWAN, LINK ROAD NO. 01, SHIVAJI
        NAGAR, DISTRICT BHOPAL (MADHYA
                                                         W.P. No.21660/2022
                                    2




       PRADESH)



3.     AUTHORIZATION       COMMITTEE,
       APPOINTED BY THE STATE GOVT.
       UNDER THE TRANSPLATATION OF
       HUMAN ORGANS (AMENDMENT) ACT.
       2011 GANDHI MEDICAL COLLEGE
       BHOPAL (MADHYA PRADESH)



4.     HOSPITAL         AUTHORIZATION
       COMMITTEE, SIDHARTH RED CROSS
       SUPER    SPECIALTY    HOSPITAL
       DISTRICT    BHOPAL    (MADHYA
       PRADESH)



5.     DEAN AND C.E.O. GANDHI MEDICAL
       COLLEGE, AUTONOMOUS SOCIETY ,
       BHOPAL APPROPRIATE AUTHORITY
       HUMAN    ORGAN     TRANSPARENT
       COMMUNITY (MADHYA PRADESH)



                                                    .....RESPONDENTS
       (BY MS. G.K. PATEL- GOVERNMENT ADVOCATE )

      This petition coming on for admission and interim relief this

day, the court passed the following:

                                ORDER

By filing this petition under Article 226 of the Constitution of

India, the petitioners have prayed for the following reliefs :

W.P. No.21660/2022

"i. The Hon'ble High Court may kindly be please to direct the respondents authority to grant approval for renal transplantation and expedite the process of kidney transplantation between petitioner no.1 and 2, without any further delay to save the life of the petitioner no.1.

ii. The Hon'ble High Court may kindly be please to set aside impugned letter dated 13.09.2022 issued by respondent no.5 and direct respondent no.2 hospital to expedite the process of kidney transplantation between petitioner no.1 & 2 without any further delay to save the life of petitioner no.1 in the interest of justice.

iii. The Hon'ble Court may be please to call for relevant records for its kind perusal.

iv. The Hon'ble Court may please to grant another relief deemed fit and proper looking to the facts and circumstances of the case."

2. Earlier, the petitioners had approached this Court in W.P.

No.18311/2022 and this Court vide order dated 30.08.2022 had

passed the following order:

"This petition under Article 226 of the Constitution of India has been filed seeking direction to the W.P. No.21660/2022

respondent no.3 to grant approval for renal transplantation and to expedite the process of kidney transplantation between the petitioner no.1 and 2 without any further delay to save the life of the petitioner no.1, who is on the deathbed.

The petitioner no.2 is ready to donate the kidney to petitioner no.1 for which they have completed the requisite formalities; but, the authorities are not granting them No Objection Certificate for the reason that they are not blood relatives.

The application filed by the petitioner is pending before the respondent no.5 which was filed on 30.6.2022; however, no decision has been taken till date. Counsel for the petitioner submitted that under such circumstances this court in W.P.No.6141/2021 and W.P.No.9668/2019 had directed the authorities to carry out the exercise of transplantation of kidney.

Heard learned counsel for the parties and perused the record.

The Parliament has enacted the Act known as 'the Transplantation of Human Organs Act, 1994" and have made the rules thereunder known as "the Transplantation of Human Organs and Tissues Rules, 2014", hereinafter referred to as 'the Rules'. Rule 7 sub rule (3) clause (iv) and clause (ix) provides as under :-

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

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W.P. No.21660/2022

(iv) examine the documentary evidence of the link, e.g. proof that they have lived together, etc.;

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(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 of such kind shall also be recorded and taken note of".

Keeping in view the aforesaid provisions of the Rules as well as the judgment passed by this court, the respondent no.3 is directed to consider the claim of the petitioner and decide the same as expeditiously as possible preferably within a period of seven days keeping in mind the pronouncements made by this Court as well as the provision of law on the subject and take a decision in respect of kidney transplantation between petitioner no.1 and 2 and submit its report before this Court before the next date of hearing.

List this case on 8.9.2022 along with the report.

Certified copy today."

3. From the above order, it is evident that the respondent No.3

was directed to consider the claim of the petitioners and decide the

same as expeditiously as possible preferably within a period of seven W.P. No.21660/2022

days keeping in mind the pronouncements made by this Court as well

as the provision of law on the subject and take a decision in respect of

kidney transplantation between petitioners No.1 and 2 and submit its

report before the next date of hearing. Thereafter, the case was listed

on 08.09.2022.

4. On 08.09.2022, the respondents/State did not choose to file the

report as directed by this Court and looking to the urgency shown by

the petitioners, the case was finally disposed of. The following order

came to be passed:

"Keeping in view the aforesaid provisions of the Rules as well as taking into consideration the fact that the competent Specialist doctors after examining the health condition of the petitioner No.1 as well as the petitioner No.2 have arrived at the conclusion that Kidney can be donated. There is no reason to reject the prayer of the petitioners specially when he is on the death bed and is fighting for his life.

Hence, this petition is disposed of with a direction to respondents Nos.2 and 3 to expedite the process of transplantation of Kidney between petitioner No.2 and No.1 within a period of seven days from the date of receipt of certified copy of this order."

W.P. No.21660/2022

5. Since the report was not filed, this Court was constrained to

direct the authorities to carry out the transplantation of kidney

between the petitioners No.1 and 2. From perusal of the impugned

order dated 13.09.2022 (Annexure P/6), it is seen that the Committee

has again rejected the application on the ground that Mr. Ram Prasad

Pandey (Donor), and Mr. Suresh Garg (recipient) are not related to

each other and have failed to produce documents to prove that there is

no monetary transaction between them and have also failed to prove

the term "relationship".

6. Taking note of the fact that in the first round of litigation, vide

order dated 08.09.2022, this Court had already directed to expedite

the process of transplantation of kidney between the petitioners No.1

and 2 within a period of seven days, meaning thereby the respondents

ought to have performed the operation, however, they have failed to

do so.

7. In such a situation, looking to the urgency in the matter and the

fact that the petitioner No.1 is on the death bed and is fighting for his

life so also keeping in view the orders passed by this Court in similar

circumstances in W.P. No.6141/2021, W.P. No.9668/2019 and W.P.

W.P. No.21660/2022

No.20797/2021, the respondents are directed to carry out the surgery

for transplantation of kidney between petitioner No.1 (recipient) and

petitioner No.2 (Donor) despite the fact that NOC has not been

granted by the respondents/State. Needless to say that the competent

specialist doctors after examination of the health condition of the

petitioner No.1 as well as petitioner No.2 have arrived at the

conclusion that kidney can be donated.

8. It is further made clear that considering the factual situation of

the matter, when operation, which is likely to be carried out and can

save life of a person and undoubtedly it needs urgency in the matter, I

am not inclined to grant any time to the State to seek any further

instruction.

With the aforesaid observation, this petition is finally disposed

of.

Certified copy today.

(S. A. DHARMADHIKARI) JUDGE Shanu Digitally signed by SHANU RAIKWAR Date: 2022.09.22 18:19:14 +05'30'