2012 Supreme(Del) 1421

189 (2012) DLT 427
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, JJ.
PARVEEN BEGUM AND ANR - Petitioners
versus
APPELLATE AUTHORITY AND ANR - Respondents
W.P.(C) 2574/2012
Decided On : 15.05.2012

Headnote:

TRANSPLANTATION OF HUMAN ORGAN ACT, 1994 - [SUBJECT] - SECTION 2(F), 2(I), 2(K), 3(1), 3(4), 4A, 6A, 6F, 9(1), 9(3), 9(5), 9(6) - [ACT SECTION LIST] - THE COURT HELD THAT THE AUTHORISATION COMMITTEE AND THE APPELLATE AUTHORITY MISDIRECTED THEMSELVES WHILE REJECTING THE PETITIONERS' CASE FOR TRANSPLANT OF A KIDNEY. THE COURT HELD THAT THE ENQUIRY BEFORE THE AUTHORISATION COMMITTEE PROCEEDS ON THE FOOTING THAT THE RECIPIENT AND THE DONOR ARE NOT NEAR RELATIVES (EXCEPT IN CASES COVERED BY SECTION 9(1A)). THE AUTHORISATION COMMITTEE IS NOT REQUIRED TO ENQUIRE INTO THE QUESTION AS TO WHY A NEAR RELATIVE OF THE RECIPIENT IS NOT READY OR WILLING TO, OR IN A POSITION, TO DONATE THEIR ORGAN/TISSUE TO THE RECIPIENT. MERELY BECAUSE, IN A GIVEN CASE, A NEAR RELATIVE MAY NOT BE WILLING TO DONATE HIS/HER ORGAN/TISSUE TO THE RECIPIENT, IS NOT GROUND TO EITHER RAISE A SUSPICION OF A COMMERCIAL TRANSACTION, OR TO REJECT THE CASE ALTOGETHER. THE COURT HELD THAT THE AUTHORISATION COMMITTEE DID NOT ASK THE PETITIONERS OR THEIR FAMILY MEMBERS EVEN ONE QUESTION AS TO WHETHER THERE WAS ANY FINANCIAL DEALING OR TRANSACTION BETWEEN THE RECIPIENT AND THE DONOR, UNDERLYING THE OFFER MADE BY THE DONOR TO DONATE ONE OF HER KIDNEYS TO THE RECIPIENT. THE COURT HELD THAT THE AUTHORISATION COMMITTEE AND THE APPELLATE AUTHORITY COMPLETELY MISDIRECTED THEMSELVES WHILE RENDERING THEIR DECISION TO REFUSE THE CASE OF PETITIONER NO. 1 FOR TRANSPLANT OF A KIDNEY WHICH PETITIONER NO. 2 AGREED TO DONATE TO PETITIONER NO. 1. THE COURT HELD THAT THE AUTHORISATION COMMITTEE SHOULD SATISFY ITSELF THAT THE REAL PURPOSE OF THE DONOR AUTHORIZING REMOVAL OF THE ORGAN IS BY REASON OF AFFECTION OR ATTACHMENT TOWARDS THE RECIPIENT OR FOR ANY OTHER SPECIAL REASON. THE SPECIAL REASON CANNOT ENCOMPASS COMMERCIAL ELEMENTS. THE COURT HELD THAT THE AUTHORISATION COMMITTEE, WHILE ASSESSING THE EVIDENCE PRODUCED IN THE FORM OF OLD PHOTOGRAPHS SHOWING THE ASSOCIATION BETWEEN THE DONOR AND THE RECIPIENT, HAS TO ACT WITH PRAGMATISM, AND KEEPING IN MIND THE GROUND REALITIES. THE COURT HELD THAT THE APPROACH OF THE AUTHORISATION COMMITTEE AND THE APPELLATE AUTHORITY CLEARLY LACKS THE EXERCISE OF DISCRETION JUDICIOUSLY AND WITH PRAGMATISM. THE COURT HELD THAT THE IMPUIGNED DECISION OF THE AUTHORISATION COMMITTEE AS WELL AS THE APPELLATE AUTHORITY ARE WHOLLY UNSUSTAINABLE AND, ACCORDINGLY, THEY ARE QUASHED. THE COURT HELD THAT THE AUTHORISATION COMMITTEE SHOULD FORTHWITH GRANT ITS APPROVAL TO THE CASE OF THE PETITIONERS FOR DONATION OF ONE KIDNEY BY PETITIONER NO.2 TO PETITIONER NO.1 IN TERMS OF THEIR APPLICATION. THE FORMAL APPROVAL SHOULD BE GRANTED WITHIN TWO DAYS, FAILING WHICH IT SHALL BE DEEMED THAT THE SAID FORMAL APPROVAL STANDS GRANTED. UPON THE GRANT OF THE SAID FORMAL APPROVAL/DEEMED FORMAL APPROVAL, THE PETITIONERS SHALL BE ENTITLED TO UNDERGO THE REQUIRED MEDICAL PROCEDURES AND OPERATION FOR THE PURPOSE OF CARRYING OUT THE TRANSPLANTATION, AS AFORESAID. THE COURT HELD THAT THE AUTHORISATION COMMITTEE AND THE APPELLATE AUTHORITY COMPLETELY MISDIRECTED THEMSELVES WHILE RENDERING THEIR DECISION TO REFUSE THE CASE OF PETITIONER NO. 1 FOR TRANSPLANT OF A KIDNEY WHICH PETITIONER NO. 2 AGREED TO DONATE TO PETITIONER NO. 1.

Fact of the Case:

THE PETITIONERS PREFERRED THE PRESENT WRIT PETITION TO SEEK A WRIT OF CERTIORARI THEREBY QUASHING THE ORDER OF REJECTION OF THE PETITIONERS’ APPEAL PASSED BY THE APPELLATE AUTHORITY ON 24.04.2012. THE PETITIONERS ALSO SEEK A WRIT OF MANDAMUS DIRECTING THE RESPONDENTS TO ACCORD APPROVAL TO THE PETITIONERS FOR EFFECTING TRANSPLANT OF KIDNEY FROM PETITIONER NO. 2 TO PETITIONER NO. 1.

Finding of the Court:

THE COURT HELD THAT THE AUTHORISATION COMMITTEE AND THE APPELLATE AUTHORITY MISDIRECTED THEMSELVES WHILE REJECTING THE PETITIONERS' CASE FOR TRANSPLANT OF A KIDNEY. THE COURT HELD THAT THE ENQUIRY BEFORE THE AUTHORISATION COMMITTEE PROCEEDS ON THE FOOTING THAT THE RECIPIENT AND THE DONOR ARE NOT NEAR RELATIVES (EXCEPT IN CASES COVERED BY SECTION 9(1A)). THE AUTHORISATION COMMITTEE IS NOT REQUIRED TO ENQUIRE INTO THE QUESTION AS TO WHY A NEAR RELATIVE OF THE RECIPIENT IS NOT READY OR WILLING TO, OR IN A POSITION, TO DONATE THEIR ORGAN/TISSUE TO THE RECIPIENT. MERELY BECAUSE, IN A GIVEN CASE, A NEAR RELATIVE MAY NOT BE WILLING TO DONATE HIS/HER ORGAN/TISSUE TO THE RECIPIENT, IS NOT GROUND TO EITHER RAISE A SUSPICION OF A COMMERCIAL TRANSACTION, OR TO REJECT THE CASE ALTOGETHER. THE COURT HELD THAT THE AUTHORISATION COMMITTEE DID NOT ASK THE PETITIONERS OR THEIR FAMILY MEMBERS EVEN ONE QUESTION AS TO WHETHER THERE WAS ANY FINANCIAL DEALING OR TRANSACTION BETWEEN THE RECIPIENT AND THE DONOR, UNDERLYING THE OFFER MADE BY THE DONOR TO DONATE ONE OF HER KIDNEYS TO THE RECIPIENT. THE COURT HELD THAT THE AUTHORISATION COMMITTEE AND THE APPELLATE AUTHORITY COMPLETELY MISDIRECTED THEMSELVES WHILE RENDERING THEIR DECISION TO REFUSE THE CASE OF PETITIONER NO. 1 FOR TRANSPLANT OF A KIDNEY WHICH PETITIONER NO. 2 AGREED TO DONATE TO PETITIONER NO. 1. THE COURT HELD THAT THE AUTHORISATION COMMITTEE SHOULD SATISFY ITSELF THAT THE REAL PURPOSE OF THE DONOR AUTHORIZING REMOVAL OF THE ORGAN IS BY REASON OF AFFECTION OR ATTACHMENT TOWARDS THE RECIPIENT OR FOR ANY OTHER SPECIAL REASON. THE SPECIAL REASON CANNOT ENCOMPASS COMMERCIAL ELEMENTS. THE COURT HELD THAT THE AUTHORISATION COMMITTEE, WHILE ASSESSING THE EVIDENCE PRODUCED IN THE FORM OF OLD PHOTOGRAPHS SHOWING THE ASSOCIATION BETWEEN THE DONOR AND THE RECIPIENT, HAS TO ACT WITH PRAGMATISM, AND KEEPING IN MIND THE GROUND REALITIES. THE COURT HELD THAT THE APPROACH OF THE AUTHORISATION COMMITTEE AND THE APPELLATE AUTHORITY CLEARLY LACKS THE EXERCISE OF DISCRETION JUDICIOUSLY AND WITH PRAGMATISM. THE COURT HELD THAT THE IMPUIGNED DECISION OF THE AUTHORISATION COMMITTEE AS WELL AS THE APPELLATE AUTHORITY ARE WHOLLY UNSUSTAINABLE AND, ACCORDINGLY, THEY ARE QUASHED. THE COURT HELD THAT THE AUTHORISATION COMMITTEE SHOULD FORTHWITH GRANT ITS APPROVAL TO THE CASE OF THE PETITIONERS FOR DONATION OF ONE KIDNEY BY PETITIONER NO.2 TO PETITIONER NO.1 IN TERMS OF THEIR APPLICATION. THE FORMAL APPROVAL SHOULD BE GRANTED WITHIN TWO DAYS, FAILING WHICH IT SHALL BE DEEMED THAT THE SAID FORMAL APPROVAL STANDS GRANTED. UPON THE GRANT OF THE SAID FORMAL APPROVAL/DEEMED FORMAL APPROVAL, THE PETITIONERS SHALL BE ENTITLED TO UNDERGO THE REQUIRED MEDICAL PROCEDURES AND OPERATION FOR THE PURPOSE OF CARRYING OUT THE TRANSPLANTATION, AS AFORESAID.

Issues: None

Ratio Decidendi: THE COURT HELD THAT THE AUTHORISATION COMMITTEE AND THE APPELLATE AUTHORITY COMPLETELY MISDIRECTED THEMSELVES WHILE RENDERING THEIR DECISION TO REFUSE THE CASE OF PETITIONER NO. 1 FOR TRANSPLANT OF A KIDNEY WHICH PETITIONER NO. 2 AGREED TO DONATE TO PETITIONER NO. 1.

Final Decision: THE COURT HELD THAT THE AUTHORISATION COMMITTEE SHOULD FORTHWITH GRANT ITS APPROVAL TO THE CASE OF THE PETITIONERS FOR DONATION OF ONE KIDNEY BY PETITIONER NO.2 TO PETITIONER NO.1 IN TERMS OF THEIR APPLICATION. THE FORMAL APPROVAL SHOULD BE GRANTED WITHIN TWO DAYS, FAILING WHICH IT SHALL BE DEEMED THAT THE SAID FORMAL APPROVAL STANDS GRANTED. UPON THE GRANT OF THE SAID FORMAL APPROVAL/DEEMED FORMAL APPROVAL, THE PETITIONERS SHALL BE ENTITLED TO UNDERGO THE REQUIRED MEDICAL PROCEDURES AND OPERATION FOR THE PURPOSE OF CARRYING OUT THE TRANSPLANTATION, AS AFORESAID.