Disposed

Bhagirathibai Babarao Hendre v. the State of Maharashtra and Others

Bombay HC23 Feb 2016WP/1765/2016

Case brief

AI extract

What is this about?

The petitioner, suffering from nephrological ailments, approached a hospital for a kidney transplant but was refused because the donor was unrelated. The court directed petitioner to apply directly to the State/District Level Authorization Committee within one week, ensuring a decision within four weeks, noting the hospital performs fewer than 25 transplants annually.

What did the court decide?

Petitioner directed to apply directly to the Authorization Committee within one week; Committee to decide within four weeks; hospital to cooperate.

Bhagirathibai Babarao Hendre Vs the State of… — Pension and Retirement Benefits | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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 WRIT PETITION NO.1765 OF 2016

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Sow. Bhagirathibai Babarao Hendre,
Age-55 years, Occu:Household,
R/o-Village Gojegaon, Post-Gorlegaon,
Tq-Hadgaon, Dist-Nanded.

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...PETITIONER

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 VERSUS

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1) The State of Maharashtra,
 Through its Secretary,
 Medical Education and Drugs Dept.,
 Mantralaya, Mumbai-32,

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2) The Secretary and Appropriate
 Authority and Director
 of Health Services,
 Maharashtra State,
 Mumbai,

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3) The Chairman
 of the Authorization Committee
 and Dean, Government Hospital
 and Medical College (GHATI),
 Aurangabad, Dist-Aurangabad,

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4) MGM Medical College and Hospital,
 Through its Authorized Person Dean/
 Medical Superintendent,
 MGM Campus, Town Center,
 Seven Hills, Aurangabad.

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...RESPONDENTS

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...

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 Mr. R.B. Narwade Patil Advocate for Petitioner.
 Mr. A.B. Girase, Government Pleader for
 Respondent Nos.1, 2 and 3.
 Mr. V.S. Kadam Advocate for Respondent No.4.

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...

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CORAM: R.M. BORDE AND
 A.I.S. CHEEMA, JJ.

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 DATE : 23RD FEBRUARY, 2016

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ORDER :

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1. The Petitioner, who is suffering from some
nephrological ailment, is seeking directions to
Respondent No.4 - M.G.M. Medical College and
Hospital to forward the proposal of the Petitioner
to Respondent No.3 i.e. Authorization Committee

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forthwith. The Petitioner is also seeking
directions to the Authorization Committee to take
decision on the proposal expeditiously, so that
the Petitioner can undergo kidney transplant
operation. According to Petitioner, she has been
advised kidney transplantation by a medical
practitioner having necessary super specialization
qualification.ThePetitionerapproached

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Respondent No.4 in connection with the treatment
and tendered request to Respondent No.4, which is

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also recognized human transplant center, to
undertake kidney transplant operation at the
center. Request was also made by the Petitioner to

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forward the proposal to the authorization
committee for its consideration. Respondent No.4,

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however, considering the fact that the donor is
not related with the donee as specified under the
provisions of the Act, has refused to undertake
kidney transplant operation. It is recorded in the
communication issued to the Petitioner that the

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relations of the donor with the recipient are not
established, hence the center is unable to perform
the transplant operation. The Petitioner contends
that it is the responsibility of Respondent No.4
to forward the proposal to Respondent No.3 for its
consideration.

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2.The Transplantation of Human Organs and

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Tissues Act, 1994 (Act of 1994) provides for

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regulationofremoval,storageand

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transplantation of human organs and tissues for
therapeutic purposes and for the prevention of
commercial dealings in human organs and tissues.
Section 9(5) of the Act of 1994 provides that, on

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an application jointly made in such form and in
such manner as may be prescribed, by the donor and
the recipient, the Authorization 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.

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3.It is not a matter of dispute that the
proposed donor is not relative within the meaning
of Section 2(i) of the Act of 1994 and the
proposed transplant of human organ is not between

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the near relatives. The composition of State and
District Level Authorization Committee is provided

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under Rule 13 of the Transplantation of Human
Organs and Tissues Rules, 2014 (Rules of 2014),
whereas the procedure in case of transplant other
than near relatives, is provided under Rule 19 of
the Rules. It is provided that the approval shall
have to be granted by the Authorization Committee
of the Hospital or if Hospital based Authorization
Committee is not constituted, by the District or
State Level Authorization Committee.

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4.Rule 11(4) of the Rules of 2014 provides
that, the Authorization Committee should be
hospital based if the number of transplants is
twenty five or more in a year at the respective
transplantation centers, and if the number of
organ transplants in an institution or hospital
are less than twenty five in a year, then the
State or District Level Authorization Committee

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would grant approval.

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5.In the instant matter, it has been

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reported that the hospital, during the preceding
year has performed less than twenty five
transplant operations and as such the State or
District Level Committee shall have to consider
the application of the Petitioner.

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6.Relying on the decision rendered by the
Division Bench of this Court in Writ Petition
No.1485 of 2013 (Master Siddhant Vikram Pal and
another vs. The Authorization Committee and
another) and other companion matters, decided on
21st June 2013, at Mumbai, it is pointed out that
in accordance with Clause (ii) of the directions

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contained in Para 17 of the Judgment,
Authorization Committee is under an obligation to
accept the application made in accordance with
Sub-section (3) read with Sub-section (5) of Sec.9
of the said Act and the Authorization Committee
cannot direct the applicants to apply through the
concerned hospital. It is also directed under
Clause (iv) of Paragraph 17 of the Judgment that,

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if along with the application under Sub-section
(3) read with Sub-section (5) of Section 9 of the
said Act, a certificate of medical practitioner
havingrequisitesuperspecialization
qualification in the concerned subject is
submitted recording that the recipient is
immediately required to undergo transplantation of
human organ and if the Authorization Committee is
satisfied about the genuineness of certificate,
the Committee shall proceed to decide such
application by giving utmost priority and
preferably within a period of four weeks from the
date of submitting the application.

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7.In view of the directions issued by the

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Division Bench of this Court as above, it would be
open for the Petitioner to tender application

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directlytotheAuthorizationCommittee
constituted under Rule 13 of the Rules of 2014,

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and the said Committee has to deal with the
application in accordance with law. If the

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Petitioner tenders application within ONE WEEK
from today, the Authorization Committee shall take
appropriate decision in the matter within FOUR
WEEKS from the date of receipt of the application.
Respondent No.4 Center shall co-operate the
Petitioner in complying with necessary formalities
for tendering of an application to the
AuthorizationCommitteeseekingnecessary
permission for undergoing transplant of human
organ as specified in Rule 10 of the Rules of
2014.

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8.The counsel appearing for Respondent No.4
Center, states on instruction, that as a matter of
policy the Center does not deal with the
transplantation of human organs if doner is
unrelated and deals with the transplantation of
human organs only between the relations specified
in the Act of 1994. We do not wish to deal with

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the issue, at this stage, in the instant matter.

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9.With the directions as above, the Writ
Petition stands disposed of.

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.The parties to act upon authenticated

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copy of this order.

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[A.I.S. CHEEMA, J.] [R.M. BORDE, J.]
asb/FEB16

Bhagirathibai Babarao Hendre v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Bhagirathibai Babarao Hendre v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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