Dharmaputhran T. vs State of Kerala

P.R. Ramachandra Menon, J.—The challenge is against Ext. P6 order passed by the third respondent/District Level Authorization Committee, which stands affirmed by Ext. P7 order dated 09.12.2014 passed by the second respondent/Secretary to Government, Dept. of Health, Thiruvananthapuram.

The issue pertains to the permission sought for to have ''Kidney Transplantation''. The first petitioner is a chronic renal patient and it has been certified by the medical authorities that transplantation of kidney is essential. Efforts taken to identify a near relative with a matching kidney came to be unsuccessful. While so, the second petitioner with whom, the first petitioner was having acquaintance came forward because of love and affection, to donate his kidney. After satisfying the formalities in this regard, Ext. P3 application dated 03.09.2014 was preferred before the third respondent/District Level Authorization Committee, jointly by the petitioners, producing relevant documents,. The consent of the near relatives of the donor/second petitioner was also produced, as borne by Exts. P4 and P5. However, without any regard to the actual facts and figures, the application came to be rejected by the third respondent, as per Ext. P6 order dated 01.11.2014, raising some doubts as to the willingness expressed by the donor/second petitioner. Being aggrieved of the said order, the petitioners preferred an appeal before the Government. But interference was declined and the appeal came to be rejected as per Ext. P7 order dated 09.12.2014, which in turn is under challenge in this writ petition.

Heard the learned Counsel for the petitioner as well as the learned Government Pleader appearing for the respondents.

During the course of hearing, it is brought to the notice of this Court that the issue has been approached by the concerned respondents in a casual manner, without any regard to the struggle of the first petitioner/patient for his life. Absolutely no insinuating circumstance or incriminating instance has been pointed out either in Ext. P6 or Ext. P7, but for raising some doubts as to the genuineness of the love or altruism expressed from the part of the second petitioner. It is also pointed out that the matter was got enquired into by the Police (Dy. SP, Thodupuzha), who has certified as per Ext. P1, that there is absolutely no commercial interest in the transaction. But this has been simply given a ''go-bye''.

A similar issue had come up for consideration before this Court earlier and as per the decision reported in Mohammed Vs. State of Kerala, , it was observed, with reference to Section 24(1) of Transplantation of Human Organs Act, 1994 and the relevant rules, that when materials are available on record to indicate that there is no commercial interest between the parties, the authorities concerned should not insist on further proof regarding the same.

Coming to the case in hand, it is seen that the matter was enquired into by a police officer of higher level (Dy. S.P. Thodupuzha), who has categorically asserted, as per Ext. P1, that there is no commercial interest. This being the position, the discrepancy, if at all any with regard to the statement/deposition collected by the third respondent, during the course of examination of the issue need not be given undue importance to turn down the relief sought for. This Court finds that the issue has been approached in a mechanical manner, without any regard to the object of the Statute.

Considering the prime necessity in this regard and the materials produced, this Court is of the firm view that rejection of the application preferred by the petitioners on surmises and conjunctures is not liable to be sustained. Accordingly, Exts. P6 and P7 are set aside. The third respondent/District Level Authorization Committee is directed to pass necessary orders for facilitating the transplantation of kidney from the donor to the recipient to save the life of the patient concerned. Necessary steps shall be pursued in this regard forthwith, at any rate, within two weeks from the date of receipt of a copy of the judgment. It is for the petitioners to produce a copy of the judgment along with a copy of the writ petition before the third respondent/District Level Authorization Committee for further steps.

The writ petition is disposed of.