We have heard Sri Rajeev Kumar Saini, learned counsel for the petitioner as well as Sri Harish Chandra Pathak, learned Standing Counsel appearing for the respondents and have perused the record. Pleadings have been exchanged and with consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage itself.
On receipt of the application of the petitioner as well as the father of the proposed recipient on 4.12.2010, the Commissioner, Moradabad Division, Moradabad forwarded the same to the District Magistrate, Bijnor vide his communication dated 9.12.2010. In turn, on 15.12.2011 the District Magistrate, Bijnor called for a report from the Sub Divisional Magistrate, Chandpur, District Bijnor. Thereafter on having made inquiry from the Tehsildar Chandpur, the Sub Divisional Magistrate submitted his report dated 20.12.2011. In the said report the Sub Divisional Magistrate has certified that the petitioner is a permanent resident of Village Noorpur, Tehsil Chandpur, District Bijnor. He has also stated that the petitioner as well as his wife have submitted two separate affidavits stating that the petitioner is donating his kidney out of his own free will without there being any monetary considerations. In the affidavit of the wife of the petitioner it is stated that she has no objection to such donation being made by her husband. The Sub Divisional Magistrate has noted that in the report of the Tehsildar it is stated that the petitioner wants to donate his kidney out of his own free will to Gaurav Jain son of Sri Surendra Kumar Jain of Kolkata. The Sub Divisional Magistrate has also noted that in his statement the petitioner has stated that in the past the Jain family has obliged him when he was in difficulty and helped him in establishing his business and as such he was wanting to donate his kidney out of his own free will without any monetary gains. The said report of the Sub Divisional Magistrate was forwarded by the District Magistrate to the Commissioner on 31.12.2011. Reports from the medical authorities were thereafter called for by the Commissioner which were all in favour of the proposed recipient and the donor.
Thereafter the District Level Authorisation Committee considered the matter in its meeting held on 28.12.2011 and after quoting the statement given by the petitioner, it was ultimately observed that the statement of the petitioner was contradictory and unclear. It was also observed in the said report that in the circumstances it could not be clearly established that there was no financial transaction undertaken for such donation of the kidney.
The said reports were considered by the State Level Authorisation Committee in its meeting held on 20.1.2012, the minutes of which have been filed as Annexure-C.A. 2 to the counter affidavit filed by the State. In the said report, all that has been stated is that on consideration of the report of the District Level Authorisation Committee dated 28.12.2011 it is found that the statement of the petitioner is contradictory and unclear. It is further stated that the donor (petitioner) lives in Calcutta (Kolkata) where he carries on the business of vegetable vending and as such the matter should be referred to the State Level Authorisation Committee of West Bengal. The said order was communicated to the petitioner by communication dated 8.2.2012 which is impugned in this writ petition. It may be mentioned that the State Level Authorisation Committee of West Bengal had already referred the matter in regard to the donation of kidney by the petitioner to the State Level Authorisation Committee of Uttar Pradesh.
The submission of the learned counsel for the petitioner is that in the absence of any finding that the donation was being made by the petitioner for any monetary gain or that the petitioner was a drug addict or known criminal, the rejection of the application of the petitioner, as well as that of the father of the proposed recipient, cannot be justified in law. It is also submitted that there is no contradiction in the statement given by the petitioner and without recording any finding as to what contradiction is there in the statement of the petitioner, the impugned order is vague and cannot be justified in law. It is also submitted that reference of the matter to the State Level Authorisation Committee of West Bengal is also unjustified inasmuch as the petitioner is a permanent resident of Village Noorpur, Tehsil Chandpur, District Bijnor, which is in the State of Uttar Pradesh and the petitioner has been temporarily residing in Kolkata (West Bengal) for business purposes for the last few years where he does not even have his own house. In support of his submissions, learned counsel for the petitioner submits that in none of the reports of the authorities of district Bijnor, including that of the Tehsildar, Sub Divisional Magistrate or the District Magistrate, has it been stated that the petitioner is not a resident of village Noorpur, Tehsil Chandpur, District Bijnor, where he got his statement recorded before the authorities concerned and as such a finding of this kind that the petitioner is a resident of Kolkata (West Bengal) by the U.P. State Level Authorisation Committee is wholly unjustified and it is the State Level Authorisation Committee of Uttar Pradesh alone that is authorised to take a decision in the matter on the basis of the evidence which was placed before it.
Sri Harish Chandra Pathak, learned Standing Counsel, appearing on behalf of the respondents has however submitted that under Rule 6B of The Transplantation of Human Organs Rules, 1995 the State Level Committee was authorised to determine the domicile status of the donor (petitioner).
The Transplantation of Human Organs Act, 1994 (hereinafter referred to as the Act) was enacted with the primary object of prohibiting commercial dealings in human organs, as would be clear from the Statement of Objects and Reasons of the said Act wherein it is stated that ".... it is considered necessary to enact a comprehensive law for regulating the removal and transplantation of human organs and for preventing commercial dealings in organs by providing punishment for such dealings". As such, what is primarily to be considered is as to whether such donation by a person (being not a near relative of the recipient) was a commercial transaction or not.
Section 2 of the Act defines "Authorisation Committee", "donor", "human organ", "near relative", "recipient", etc. and section 9 provides for restriction on removal and transplantation of human organs or tissues or both. The relevant sub-sections (3), (4), (5) and (6) of section 9 of the Act are quoted below:-
"(3) If any donor authorises the removal of any of his human organs or tissues or both before his death under sub-section (1) of section 3 for transplantation into the body of such recipient, not being a near relative, as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ or tissue or both shall not be removed and transplanted without the prior approval of the Authorisation Committee.
(4) (a) The composition of the Authorisation Committees shall be such as may be prescribed by the Central Government from time to time.
(b) The State Government and the Union Territories shall constitute, by notification, one or more Authorisation Committees consisting of such members as may be nominated by the State Governments and the Union territories on such terms and conditions as may be specified in the notification for the purposes of this sections.
(5) On an application jointly made, in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorisation Committee shall, after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act and the rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ.
(6) If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval."
The Transplantation of Human Organs Rules, 1995 (hereinafter referred to as the Rules of 1995) have been framed under section 24 (1) of the Act. Rule 4A of the Rules of 1995 provides for authorisation committee. The provisions of sub-rule (4) of Rule 4A, which relate to the proposed donor and the proposed recipient not being relatives, are being reproduced below:-
"(4) When the proposed donor and the recipient are not "near relatives", as defined under clause (i) of section 2 of the Act, the Authorisation Committee shall evaluate that, -
(i) there is no commercial transaction between the recipient and the donor and that no payment or money or moneys worth as referred to in the Act, has been made to the donor or promised to be made to the donor or any other person;
(ii) the following shall specifically be assessed by the Authorisation Committee:-
(a) an explanation of the link between them and the circumstances which led to the offer being made;
(b) reasons why the donor wishes to donate;
(c) documentary evidence of the link, e.g., proof that they have lived together, etc.;
(d) old photographs showing the donor and the recipient together;
(iii) that there is no middleman or tout involved;
(iv) that financial status of the donor and the recipient is probed by asking them to give appropriate evidence of their vocation and income for the previous three financial years. Any gross disparity between the status of the two must be evaluated in the backdrop of the objective of preventing commercial dealing;
(v) that the donor is not a drug addict or known person with criminal record;
(vi) that the next of the kin of the proposed unrelated donor is interviewed regarding awareness about his or her intention to donate an organ, the authenticity of the link between the donor and the recipient and the reasons for donation. Any strong views or disagreement or objection of such kin shall also be recorded and taken note of."
A perusal of the aforesaid sub-rule (4) of Rule 4A of the Rules of 1995 makes it clear that primarily what is to be considered by the State Level Authorisation Committee is that the donation is not on payment of any amount or with the objective of having any commercial dealing. What is also provided in the aforesaid sub-rule is that the interview of the next of the kin of the proposed donor who is not related to the proposed recipient should also be taken. The reports of the district authorities in this regard are absolutely clear that there is no finding with regard to any commercial transaction between the donor (petitioner) and the proposed recipient. Merely stating in its report that in the circumstances it cannot be clearly said that no financial transaction has taken place, cannot mean that there is any commercial transaction undertaken between the donor (petitioner) and the proposed recipient. While rejecting an application, there should be a specific finding in this regard, which is absent in the present case.
We have perused the statement of the petitioner as has been recorded in the report of the District Level Authorisation Committee wherein the petitioner has stated that he is a permanent resident of Village Noorpur, Tehsil Chandpur, District Bijnor and has been doing his business in Kolkata for the last about five years, where he came into contact with the Jain family who helped him in establishing his business and because of that he has been in close contact with Gaurav Jain for the last 4-5 years, and on coming to know that both the kidneys of Gaurav Jain had failed, he offered to donate his kidney. He has clearly stated that in lieu thereof he is not taking any money. The petitioner has specifically stated that because of his acquaintance with Gaurav Jain for the last 4-5 years, he has become very friendly with him but has no financial dealing with him or his family and the donation is being made purely on humanitarian ground and also because the Jain family had helped him in establishing his business. We fail to understand as to how in such statement of the petitioner there was contradiction or the statement was unclear. Learned Standing counsel also could not point out from the record any contradiction in the statement of the petitioner which has been quoted in the report of the District Level Authorisation Committee.
In view of the aforesaid, what we find is that the orders have been passed by the State Level Authorisation Committee as well as the District Level Authorisation Committee mechanically, without application of mind. We may reiterate that the State Level Authorisation Committee has rejected the application of the petitioner without giving any finding to the effect that there was any commercial transaction or that there is any likelihood of commercial dealing in such donation of the kidney by the petitioner to the recipient Gaurav Jain. The statement of the petitioner clearly shows that the donation is being made out of intimacy with and being beholden to Gaurav Jain and also on humanitarian ground as the family of the recipient had helped him in establishing his business in Kolkata and thereby they had developed good relations with each other. The next of the kin of the petitioner, i.e. his wife, has also given an affidavit to the effect that she has no objection to her husband (petitioner) donating his kidney. Though it may be necessary under sub-rule (4) of Rule 4A of the Rules of 1995 to consider the financial position of the recipient and the donor but what is to be seen in the said backdrop is whether there was any commercial dealing with the donor and the recipient or not. Merely because there is a disparity in the financial status of the donor and the recipient would not mean that the donation is being made because of any commercial dealing. A specific finding to that effect ought to have been recorded by the District Level Authorisation Committee or in the report of the district administrative authorities and in the absence of the same, merely on apprehension it cannot be stated that the donor (petitioner) is donating his kidney because of any commercial dealing.
Further, there being a clear finding of all the district level authorities that the petitioner is a permanent resident of Village Noorpur, Tehsil Chandpur, District Bijnor, then scuttling their responsibility by referring the matter to the State Level Authorisation Committee of West Bengal is wholly unjustified, inasmuch as when the petitioner is a permanent resident of the district of Bijnor in the State of Uttar Pradesh, and has been living in Kolkata (West Bengal) for the last few years only, it is the State Level Authorisation Committee of Uttar Pradesh that has to give its report under the provisions of the Act of 1994 and the Rules framed thereunder.
In view of the aforesaid discussion we are of the opinion that the impugned order dated 8.2.2012 passed by the Director General, Medical Education & Training, U.P. Lucknow, respondent no.2, as well as the report of the State Level Authorisation Committee dated 20.1.2012, in so far as it relates to the petitioner, deserve to be quashed.
In the result, this writ petition stands allowed. The impugned order dated dated 8.2.2012 passed by the Director General, Medical Education & Training, U.P. Lucknow, respondent no.2, as well as the report of the State Level Authorisation Committee dated 20.1.2012, in so far as it relates to the petitioner, are quashed. The State Level Authorisation Committee shall take a fresh decision on the application of the petitioner as well as Sri Surendra Kumar Jain (father of the proposed recipient Gaurav Jain) in the light of the observations made hereinabove, as expeditiously as possible, preferably within a period of one month from the date of filing of a certified copy of this order before the Principal Secretary, Medical & Health Department, Lucknow, respondent no.1. Considering the fact that the matter relates to the life and death of the proposed recipient of the kidney to be donated by the petitioner, we hope and trust that respondent no.1 will not delay the matter and shall make every effort to take a decision at the earliest.
In the end, we record our appreciation to the valuable assistance given by Sri Rajeev Kumar Saini, learned counsel for the petitioner, as well as Sri Harish Chandra Pathak, learned Standing Counsel appearing on behalf of the respondents.