Natural justice principles mandate that applicants must be given an opportunity to explain their case, particularly in organ donation applications without evidence of commercial motives.

ORDER :

1. The petitioner is working as an Electrical Assistant in Indian Railways. He is aged about 30 years. He is suffering from chronic kidney disease. He is under dialysis. He has been advised by his nephrologist to undergo kidney transplant at the earliest. The petitioner's wife came forward to donate her organ. But it did not materialise on account of medical incompatibility. Offers made by other relatives also met the same fate. Seeing the petitioner's condition, Mrs.Radhika, W/o.Kuppan offered to donate her organ and she was found to be compatible. As she was not related, prior approval from the Authorisation Committee was required.

2. Accordingly, application in Form-11 was submitted by the prospective donor and the petitioner. Their case is that the offer by Mrs.Radhika is out of love and affection and there is no commercial element in the transaction. However, the application was rejected. Challenging the same, the present writ petition has been filed.

3. The learned counsel for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition and called upon this Court to grant relief as prayed for.

4. Per contra, the learned Government Advocate for the department submitted that the impugned order does not deserve to be interfered with. In the alternative, he submitted that the petitioner can very well file an appeal as provided under Section 17 of the TRANSPLANTATION OF HUMAN ORGANS AND TISSUES ACT , 1994.

5. I carefully considered the rival contentions and went through the materials on record. Vide order dated 30.05.2024 in W.P.Nos.13918 of 2024 etc batch, I had laid down the parameters for considering Form 11 application when the applicants are not “near relatives.” The order dated 09.10.2023 made in W.P. No. 27106 of 2023 (Dr. J. Kaja vs. The Authorisation Committee (Transplantation), Rep. by its Chairmnan, Chennai) passed by Mr.Justice N.Seshasayee was not brought to my notice. His Lordship has explained succinctly the ratio and rationale underlying the decision of the Hon'ble Supreme Court reported in (2005) 11 SCC 122 ( Kuldeep Singh v. State of Tamil Nadu ). There are many takeaways from the said judgment. The first is that transplants from non-near relative donors are contemplated under Section 9(3) of the TRANSPLANTATION OF HUMAN ORGANS AND TISSUES ACT , 1994 and Rules 14 and 19 of the Transplantation of Human Organs and Tissues Rules, 2014 prescribe the procedures and consequently, refusal by hospitals in the State of Tamil Nadu to perform transplants concerning unrelated donors would be plainly illegal. G.O.(Ms)No.175, dated 06.06.2008 which touches upon the procedure of considering the applications has been extracted in toto. The Hon'ble Judge expressed his belief that physicians and hospitals would gain in confidence in dealing with the issue and that what is required is legal education on the subject and expected the Government to take a lead in the matter. Without being aware of the aforesaid order, I had also rendered judgment on the same lines. I had held that the applicants cannot be expected to prove the negative; the statement that the prospective donor has come forward out of altruistic motive should not be doubted in the absence of definite materials evidencing commercial dealing. I had further held that when there is no material to show passing of consideration, approval should be granted.

6. The Authorisation Committee sat on 10.05.2024 and the deliberations pertained to liver transplantation as well as renal transplantation. The table contains six columns under the following headings, serial number, name of the hospital, name of the pa