Judgment

S.K. Mishra, J.

In this writ petition, the petitioner seeks a direction from the Court to the opposite parties for according necessary permission for kidney transplantation of her husband from a unrelated donor.

2. The petitioner’s husband namely Dillip Kumar Behera belongs to Scheduled Caste community. He is suffering from bilateral chronic medical reneal diseases since 2010. He is also suffering from paralysis and other multiple diseases. He is under constant dialysis and under Intensive Care Unit of different hospitals including Apollo Hospital, Bhubaneswar. Due to non-functioning of both the kidneys, the petitioner’s husband is in serious condition and is under constant treatment of Dr. Nitish Kumar Mohanty, who is the Senior Consultant, Nephrology and Transplant Consultant of Apollo Hospital, Bhubaneswar. Doctor has advised him for immediate kidney transplantation. The petitioner therefore approached the doctors of the Apollo Hospital, Bhubaneswar and the S.C.B. Medical College & Hospital, Cuttack for transplantation of kidney, but however despite her request the treating doctor has not forwarded the application of the petitioner’s husband for approval of the Authorisation Committee constituted under the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter referred to as “the Act” for brevity).

3. When the matter came up before this Bench on 15.3.2013 after hearing parties this Court directed the Managing Director, Apollo Hospital, Bhubaneswar, opposite party no.4, to process the application forthwith and send it to the Authorisation Committee. It was further directed that the Authorisation Committee shall process the same and take a decision within twenty-four hours from receipt of such application and report to this Court on 20.3.2013. On 25.3.2013 the matter was again taken up wherein this Court was informed that the Apollo Hospital, Bhubaneswar is only authorized to take up transplantation in respect of near relatives in terms of Section 2(i) of the Act and there is noncompliance of Rule 6F(d) of the Transplantation of Human Organs Rules,1995. That apart pursuant to the proceeding dated 19.3.2013, the Authorisation Committee asked for nine documents for the decision in this matter. This Court perused the files produced by learned Addl. Government Advocate and directed the petitioner to submit the documents asked by the Authorisation Committee within three days. It was further directed that the Authorisation Committee will take a decision in the matter within three days thereafter and give its report to this Court with a copy of the same to the petitioner.

4. The Authorisation Committee met in an emergent meeting on 3.4.2013 at 4.30 P.M. in the office Chamber of Director Medical Education and Training, Odisha(hereinafter referred to as the “DMET(O)”) under the Chairmanship of Prof.(Dr.) Sonamali Bag. After considering the matter in a cryptic order the Committee resolved as follows:-

“As per the kind orders of the Hon’ble High Court dated 25.3.2013 in W.P.(C) No.5554/2013 an emergent meeting of Authorisation Committee was held under the Chairmanship of Prof.(Dr.) Sonamalil Bag, DMET(O) on 3.4.2013 at 4.30 P.M. During this meeting Sri Dillip Ku. Behera (Recipient) was absent. The donor Smt. G. Vijayalaxmi and wife of the recipient Smt. Indu Behera were present. The Committee interacted with them and on such interaction the Committee is of the opinion that no cogent reasons have been given as to why the donor wishes to donate her kidney. Further Domicile/Residence proof of the donor is not supported by relevant documents. Hence, the Committee unanimously resolved not to grant NOC.”

On such resolution the petitioner filed an additional affidavit, inter alia, contending that the Authorisation Committee under Rule-6F(d) of the Transplantation of Human Organs Rules, 1995(hereinafter referred to as “the Rules” for brevity) refused to accord permission on the ground that the Apollo Hospital is only authorize