JUDGMENT

Chakradhari Sharan Singh, J. - This matter relates to transplantation of kidney, which the petitioner No.1 requires and petitioner No. 2, it has been claimed, is willing to donate for the said purpose. The petitioner No. 1 has accordingly been described as 'the proposed Recipient' and petitioner no.2 as 'the proposed Donor' for the purpose of present judgment and order.

2. This writ application under Article 226 of the Constitution of India has been filed jointly by the proposed Donor and the proposed Recipient seeking direction to the respondents for recommending/forwarding their case to the Authorization Committee of Patna Medical College and Hospital, Patna, for granting 'No Objection Certificate' for transplantation of kidney as the private hospital, namely, Paras HMRI Hospital, Bailey Road, Patna (Respondents No. 6 to 8), where the proposed Recipient was undertaking treatment for renal disorder, has refused the request for transplantation of kidney, which the proposed Donor has willingly agreed to donate. The petitioners also seek a direction to start pre-transplant treatment/medical test in respect of proposed Donor for donation of kidney in order to save the life of proposed Recipient. Parties have been heard.

3. The proposed Donor is, admittedly, not a near relative of the proposed Recipient within the meaning of Section 2(i) of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter to be referred to as the 'THO&T Act'). The proposed Recipient is a chronic patient of renal failure and undeniably requires kidney transplantation. He had been undergoing haemodylysis regularly in Paras HMRI Hospital, Bailey Road, Patna, (hereinafter to be referred to as the 'Private Hospital'), which is duly approved by the authorities under the THO&T Act read with Transplantation of Human Organs and Tissues Rules, 2014 (hereinafter to be referred to as the 'THO&T Rules').

4. It has been alleged in the writ petition that the Private Hospital has refused to undertake the process of kidney transplantation despite unconditional willingness of the proposed Donor to donate for the sole reason that the proposed Donor is not the near relative of the proposed Recipient. It is the petitioners' case that the proposed Donor is willing to donate his kidney voluntarily, which is triggered by the affection and attachment which he has for the proposed Recipient. They have alleged that the Private Hospital has refused to forward the application of the petitioners before the State Authorization Committee for granting no objection, which is required under the Provisions of the THO&T Act.

5. When this application was taken up by this Court on 29.09.2020 through on-line video conference mode on a mentioning for urgent hearing, it was informed that a supplementary affidavit had been filed, which was unavailable on record. The matter was accordingly adjourned. Subsequently, the matter was taken up on 08.10.2020 through on-line video conference mode, when the Court was informed that the proposed Donor had been asked to appear before a high powered statutory 'Authorization Committee', constituted under the THO&T Act and the Rules framed thereunder. The Court had recorded an assurance furnished by Mr. Sandeep Kumar, learned counsel appearing on behalf of the Private Hospital that the Hospital shall furnish all documents as per the norms to the Authorization Committee as and when required without any unnecessary delay.

6. For one reason or the other, the matter was adjourned on several dates as the Private Hospital was found refusing to undertake the desired surgery, as, according to them, donation of the organ by the proposed Donor was 'in suspicious circumstance' and not out of affection and attachment. The question had arisen as to whether this Court in such circumstance could and should issue directions or orders in the nature of writ of mandamus exercising power of judicial review under Article 226 of the Constitution of India. Extensive arg