Partly allowed

Sri Arshadali Gove v. the State of Karnataka

Karnataka HC30 Sept 2021WP/17905/2021

Case brief

AI extract

What is this about?

This writ petition was filed to quash an order remanding a kidney transplant case to the Authorization Committee and to grant approval due to grave urgency. The Court held that life itself is a fundamental right under Article 21 and directed the Committee to decide the matter within one week.

What did the court decide?

Writ of Mandamus to the State Level Authorization Committee to take the decision on the remand within a period of one week.

Sri Arshadali Gove Vs the State of Karnataka — Medical Negligence | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 30^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.17905 OF 2021(GM-RES)

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BETWEEN:

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SRI. ARSHADALI GOVE, S/O SRI MASTAN SAB GOVE, AGED ABOUT 50 YEARS, R/O NO.73, C.C.B. II CROSS, AZAM NAGAR, BELAGAVI-590 001.

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SMT.RESHMA FAZAL SHAIKH W/O FAZAL SHAIKH AGED ABOUT 39 YEARS, RUKMINI HOUSING SOCIETY SANJAY NAGAR, SANGLI-416 416 MAHARASTRA STATE

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...PETITIONERS

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(BY SRI. S.P. KULKARNI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REP BY CHIEF SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, VIKASA SOUDHA, BENGALURU-560 011.

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THE APPELLATE AUTHORITY AND ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, HEALTH AND FAMILY WELFARE DEPARTMENT, VIKASA SOUDHA, BENGALURU-560 001.

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THE STATE LEVEL AUTHORIZATION COMMITTEE FOR TRANSPLANTATION OF HUMAN ORGANS DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF KARNATAKA, INSTITUTE OF NEPHRO UROLOGY BUILDING, VICTORIA HOSPITAL CAMPUS, BENGALURU-560 002. REP BY ITS CHAIRMAN.

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… RESPONDENTS

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(BY SRI. SRIDHAR HEGDE, HCGP)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN APPEAL FILED BY THE PETITIONERS BEFORE THE R2 AUTHORITY IN APPEAL NO.HEW 05 FPR 2021 AND QUASH THE ORDER DTD 02.09.2021 PASSED BY THE R2 - THE APPELLATE AUTHORITY AND ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, BENGALURU IN SO FAR A IT RELATES TO ONLY REMANDING THE MATTER TO THE R3 COMMITTEE AND IN ITSELF NOT GRANTING PERMISSION FOR KIDNEY TRANSPLANTATION AS SOUGHT FOR BY THE PETITIONERS HEREIN AND CONSEQUENTLY GRANT THE PERMISSION / APPROVAL FOR KIDNEY TRANSPLANTATION AS SOUGHT FOR BY THE PETITIONERS HEREIN IN VIEW OF THE GRAVE URGENCY IN THE MATTER ANNEXURE-X

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The shorn of thickness of the petition book and the pleading as such, learned counsel for the petitioners draws the attention of this Court to the urgency involve and argues that the immediate transplantation of kidney has to take place; that the second petitioner being a relative of the first petitioner – expectant donee has entered into an arrangement in this regard.

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Learned counsel for the petitioners vehemently submits that the matter is now remanded to the third respondent-Committee and in view of the urgency the Committee needs to accomplish the consideration thereof within a shortest possible period and on a warfooting.

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Learned HCGP on request having accepted notice for the respondent Nos. 1 & 2, notice to respondent No.3 being dispensed with, submits that in matters of this kind, ordinarily, the Court should not interfere and it should be left to the discretion of the third respondent – Committee, which is an expert body.

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Having heard the learned counsel for the parties and having perused the petition papers, this Court broadly agrees with the submission of learned counsel for the petitioners; the contention of learned HCGP that Court should keep away from such matters is bit difficult to countenance since, life & limb of first petitioner i.e., the expectant kidney donee are at stake. In a way, case of the first petitioner falls under Article 21 of Constitution of India and therefore, the Writ Court is duty bound to grant indulgence especially when the prayer is innocuous.

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The submission of the learned counsel for the petitioners that the matter does not involve any elements of Commerce in the light of the decision of the Apex Court in KULDEEP SINGH Vs. STATE OF TAMILNADU 2005 (11) SCC 122 and another in W.P.No.2574/2012 between PARVEEN BEGAM & OTHERS VS. APELLATE AUTHORITY

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& OTHERS, in the Hon’ble Delhi High Court disposed off

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on 15.05.2012, is placed on record.

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In the above circumstances, this writ petition succeeds in part; a Writ of Mandamus issues to the third respondent to take the decision on the remand within a period of one week.

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The learned HCGP is requested to inform this order to the third respondent – Committee to whom notice is dispensed with because of the innocuous prayer in the writ petition.

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It is open to the petitioners to present a downloaded copy of this order to the third respondent-Committee for immediate process of the matter.

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No costs.

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Sd/JUDGE

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Bsv

Sri Arshadali Gove v. the State of Karnataka

Case brief

What is this about?

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Sri Arshadali Gove v. the State of Karnataka

Case brief

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