IN THE HIGH COURT AT CALCUTTA

(Constitutional Writ Jurisdiction)

APPELLATE SIDE

Present:

The Hon’ble Justice Krishna Rao

W.P.A. No. 14608 of 2026

Sunita Khara

Vs.

State of West Bengal & Ors.

Mr. Aritra Basu

Ms. Maitree Roy

....For the petitioner.

Mr. Falguni Bandyapadhyay

Mr. Rohit Banerjee

Ms. Riya Ballab

….For the State.

Mr. Saurendra Betal

….For the Respondent No.7.

Mr. Uttam Kumar Mandal

….For the Respondent No.8.

Hearing Concluded On : 22.07.2026

Judgment Delivered On : 30.07.2026

Judgment Uploaded On : 30.07.2026

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Krishna Rao, J.:

1. The petitioner has filed the present writ petition praying for a direction

upon the respondent no.6 and the Authorization Committee,

Government of West Bengal, to immediately consider and grant

necessary approval for the renal transplantation of the petitioner’s

husband, who has been diagnosed with End Stage Renal Disease and is

in urgent need of a kidney transplant.

2. The petitioner’s husband, namely, Chintu Khanra, who is aged about

48 years, and is suffering from End Stage Renal Disease and is bed-

ridden. The husband of the petitioner was clinically examined by the

doctors of Rabindranath Tagore International Institute of Cardiac

Sciences (hereinafter referred to as “R.N. Tagore Hospital”), a unit of

Narayana Health Multispecialty Hospital Pvt. Ltd. and issued a

certificate advising Kidney Transplant as a definitive treatment for the

renal disease of the patient.

3. The respondent no.7, Rupa Saha, being a family friend of the husband

of the petitioner voluntarily agreed to donate one kidney to the husband

of the petitioner out of her natural love and affection on humanitarian

ground. The petitioner’s husband filed an application in Form No.11

along with all necessary documents for Approval of Transplantation

from Living Donor duly signed by the prospective donor and recipient.

4. Mr. Aritra Basu, Learned Advocate representing the petitioner submits

that the donor and her guardian, i.e. her father, have also executed an

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affidavit before the Learned 1

st Class Judicial Magistrate affirming that

the respondent no. 7 is donating her kidney to the husband of the

petitioner out of compassion, without any pressure or financial

consideration, solely to save a needy person.

5. Mr. Basu submits that pursuant to the notice dated 5

th June, 2026, the

petitioner along with the proposed donor and donor’s guardian

appeared before the Organ Transplantation Authorization Board on 9

th

June, 2026, with all relevant documents but it was informed to the

petitioner verbally that the case of the husband of the petitioner is not

recommended for kidney transplantation.

6. Mr. Basu submits that the respondent authorities without assigning

any reasons refused the request of the husband of the petitioner for

kidney transplantation. He submits that the husband of the petitioner

has submitted all required documents along with an affidavit of the

proposed donor and her guardian but the respondent authorities

without assigning any reason not recommended the case of the

petitioner for kidney transplantation.

7. Mr. Basu has relied upon the judgment passed by this Court in the

case of Niraj Kumar Sonthalia Vs. State of West Bengal and Ors. in

WPA No. 5037 of 2026 dated 6

th

March, 2026, wherein this Court

held that the donor has voluntarily come to donate his organ to save

the life of the wife of the petitioner being the well-wisher and also

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affirmed an affidavit before the Learned Magistrate and also verified by

the police authorities.

8. Mr. Basu has also relied upon the judgment in the case of Sudha

Mathesan and Another Vs. Authorization Committee

(Transplantation), rep. by its Chairman and Another reported in

2024 SCC OnLine Mad 1633 and submits that unless there is definite

material to establish that there are financial dealings involving the

parties, permission ought not to be withheld or rejected. If the donor

states that out of love and affection, she is making donation, in the

absence of any credible reason, the averment should not be doubted.

9. Mr. Basu has relied upon the judgment in the case of V. Periasamy Vs.

The Chairman, Office of the Chairman Organization Committee,

Directorate of Medical Education and Ors. reported in

MANU/TN/3743/2025 and submits that it is incomprehensible as to

how the family friends can establish their relationship through

documents. Emotion plays a part in a relationship involving friends and

it is not determined through documentation.

10. Mr. Basu has relied upon the judgment in the case of Ratnakar

Peddada and Others Vs. State of Telangana and Others reported in

MANU/HY/0103/2018 and submits that the Authorization Committee

has to inquire whether there has been a commercial transaction

between the donor and the recipient. If the result of the inquiry is in the

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negative, then evaluating the evidence on record, it has to grant

approval for transplantation.

11. Mr. Basu has relied upon the judgment in the case of Kuldeep Singh

and Another Vs. State of T.N. and Others reported in (2005) 11 SCC

122 and submits that the Committee shall be in a better position to

ascertain the true intent and the purpose for the authorization to

remove the organ and whether any commercial element is involved or

not.

12. Mr. Falguni Bandyapadhya, Learned Advocate, representing the State

submits that two member verification committee has been constituted

in order to support and assist the functioning of the Authorization

Committee with additional input and information under the

Transplantation of Human Organs and Tissues Act, 1994. The proposal

for permission of renal transplantation of the husband of the petitioner

was submitted on 29

th October, 2025. The verification committee

submitted report along with police report after examination of the donor

and her guardian. On receipt of verification report, the authorization

committee did not find any special reason for willingness of the donor

to donate one of her kidney to the recipient and have not recommended

for organ transplantation.

13. The verification committee after examination of the petitioner, donor

and her guardian, had submitted report on 15

th

May, 2026, which

reads follows:

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1) Whether there is any commercial

transaction between the donor

and recipient

Nothing Established

2) Whether any pecuniary promises

have been made to the donor or

any other person for this organ

donation.

Nothing Established

3) Nature of link between non-

related donors and recipients.

As per verbal statement

husband of the donor

Worked as a driver but he is

missing since January

2025. GD has been done by

the donor.

4) How donor come to contact of

recipient

As per verbal statement

husband of the donor

Worked as a driver but he is

missing since January

2025. GD has been done by

the donor.

5) Documentary evidence of the link,

if any

Not submitted any

Documents

6) Reason why the donor desires to

donate

Humanitarian Ground

7) Identity photograph showing the

donor and recipient together

Yes

8) Whether there is any middle

men/tout involved

Nothing established

9) Financial status of the donor and

recipient

Donor- Monthly Income –

6,000/- (Six Thousand)

Recipient-Monthly Income –

75,000/- (Seventy-Five

Thousand)

Legal Guardian of Donor-

Monthly Income – 2,000/-

(Two Thousand)

10) Whether donor is a drug addict No

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11) Profile verification report Receiver by Deputy –

Superintendent of Police,

DIB Barasat Police District.

Ref-memo. No.-DC-329/DIB

BST PD, Date-31/01/2026

12) Interview report of the next of the

kin of the proposed non-related

donor regarding the awareness

about his intention to donor, the

authenticity of the link between

the donor and the donor and the

recipient and the reason for

donation

Next of the kin is aware

It is not clear how both the parties came in contact and

became family friend or Driver. No documentary evidence or

any photograph was produced. Hence link between both the

parties could not be ascertained. Hence not Recommended.”

14. The police authority has submitted report which reads as follows:

“Barasat P.D.

Ref: Memo No – DC-779, dated- 15.01.2026 .

Sub: Verification report of authentication

of antecedent of Recipient Mr. Chintu

Khanra and donor Mrs. Rupa Saha

(39 years) and legal guardian her

father Mr. Dilip Saha of the donor of

human organ.

Respected Sir,

With due respect, I beg to informed you that as

per your kind order I have enquired the matter.

During enquiry I had been to the Vill – East

Kamarthuba, P.O + P.S- Habra, North 24 Parganas,

Pin – 743263. to enquired the matter physically.

During enquiry it is revealed that:

1) There is no blood relation with the donor

and recipient could be established.

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2) No possibility of official dealing could be

established.

3) Nothing could be established.

This is for your kind information.

Yours faithfully

SI Sujit Dewan

DIO Habra”

15. This Court has called for the video recording of the verification

committee wherein the verification committee examined the wife of the

recipient, the donor and her guardian. In the report submitted by the

verification committee at Serial Nos. 3 and 4, it is recorded that “As per

verbal statement husband of the donor worked as a driver but he is

missing since January 2025. G.D. has been done by the donor”.

This Court perused the recording of the verification committee

wherein several questions were put to the proposed donor. The

verbatim of the statement of the donor is as follows:

“1) Where this Kidney transplant is going to take

place?

Answer:- R.N. Tagore, under Dr. Deepak Shankar

Ray. (Answered by the wife of the

recipient)

 Answered by Rupa Saha :

2) Who is Rupa Saha?

Answer:- I am, Sir

3) Where is Rupa Saha residing?

Answer:- Habra

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4) Is the recipient’s house at Belur, Howrah?

Answer:- Yes.

5) How do you know the recipient?

Answer:- Through my husband, since my husband

used to work under the recipient as their

driver since the year 2014-2015.

6) What does your husband do now?

Answer:- No, He’s not working currently…..

7) If his is not working, how is he able to feed

himself and his family?

Answer:- He has worked for a longtime, that’s why

we have some savings (unclear words).

8) How much have recipient and his family, offered

to pay for kidney donation?

Answer:-They haven’t paid anything at all, and I

also haven’t asked for any money, since

money is not the main purpose of life and

there has been no involvement of money in

this matter. If you come to my house you can

see that I am the only child of my father, and

my father owns a two-storied building on

three cottahs of land. My father also has a

shop as well. I am financially independent. I

have a job and I own a house.

9) So, if not money, have they offered anything else

in return of the donation?

Answer:- No. I am a follower of Shri Premanand

Maharaj, he’s also suffering from kidney

issues and many of his followers has offered

to donate kidney to him, but he has refused.

So, I take him as my inspiration and I want to

help someone.

10) Where’s your husband now?

Answer:- I don’t know. He’s missing.

11) Since when he’s missing?

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Answer:- since 4

th January, 2025.

12) Whether any report has been lodged before the

concerned police station regarding the missing

of your husband?

Answer:- Yes, at Habra Police Station. Several

communications have also taken place

between the concerned police station and me.

13) Do you have any children?

Answer:- Yes, I have a son, who’s currently

studying in class 7.

14) How do you manage your family’s expenses?

Answer:- I work a casual job in the Municipality, I

also do home delivery services and I run my

small jewelry business.

15) How did you get to know the recipient and his

family?

Answer:- Since my husband used to work there,

we have visited their house on multiple

occasions, as well as they have come to visit

my house including the time of my “Griha

Pravesh Puja”.

16) Is there any documentary evidence to prove the

good relations between the recipient and his

family, and you?

Answer:- No, there isn’t any documentary evidence

to prove such relation. It is just the fact that

the recipient and his family have visited my

house on multiple occasions.

17) Why did you agree to donate a kidney? Are you

aware that donating one kidney can be life-

threatening in certain situations and may also

lead to increased expenses if your health

deteriorates and there are associated health

risks?

Answer:- I have consulted with the doctors and I

am aware of every risk. Firstly, when I met

with the wife of the recipient, she had shared

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that her husband is suffering and is in dire

need of a kidney transplant, and as such they

have advertised in all the news papers as

well. Afterwards, I myself decided and

volunteered and since my blood group is also

O+, is there any possibility if I donate a

kidney. Thereafter, the wife of the recipient,

me and my father, had discussed with the

doctors and the doctors advised that donating

one kidney will not be a problem and it will

also save somebody’s life.

18) The doctor present here today is pointing out

himself that it will be a life-risk if you agree to

donate a kidney, you are a single mother, and

you also have a young son who’s now

studying in class 7, and your father is also

quiet old. So, in case if you fall sick, who will

take care of him? I, myself is a doctor, and I

am explaining it to you that donating a kidney

may be life-threatening and anything can

happen to you while you are in the operation

theatre, are you aware that you will be given

anesthesia and several other medications?

Answer:- Yes

19) What is your name? (Question asked to the

donor’s father)

Answer:- Dilip Saha.

19) Are you also aware of the risks being taken by

your daughter? Why are you agreeing for your

daughter to face such danger? (Question

asked to the donor’s father)

Answer:- I am aware of every risk. This is not a

danger, this is a help.

 Answered by Rupa Saha :

20) Have you submitted your photograph?

Answer:- Yes, along with all the details.

21) Have you submitted your income certificate?

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Answer:- Yes.

22) Do you take any medication?

Answer: No, I don’t.

23) Do you know anyone who introduced you to

the family of the recipient considering their

crisis?

Answer:- No.

24) Being her father, are you aware that the act of

your daughter involves life risk, and that she

may also die inside the operation theatre?

(Question asked to the donor’s father)

Answer:- Yes. I think it’s her fate. If her fate

permits she will be absolutely fine and if not

she might die. She’s trying to save

somebody’s life and I think it’s a great deed.”

16. It is admitted that the donor is not a near relative of the recipient. The

donor and recipient are unrelated to each other but it is the case of

both the parties that they are family friends. The donor and her

guardian have executed an affidavit before the Learned 1

st Class

Judicial Magistrate. In the affidavit of donor, it is stated that “She is

donating her kidney to the recipient out of compassion, without any

pressure or financial consideration, solely to save a needy person”. The

guardian of the donor has stated that “He has no objection if his

daughter donates her kidney to the recipient”.

17. Section 2(f) defines Donor and 2(i) of the Transplantation of Human

Organs and Tissues Act, 1994, defines near relative which reads as

follows:

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“2(f) “donor means any person, not less than

eighteen years of age, who voluntarily authorizes

the removal of any of his [human organs or tissues

or both] for therapeutic purposes under sub-section

(1) or sub-section (2) of section 3;

2(i) [“near relative” means spouse, son,

daughter, father, mother, brother, sister,

grandfather, grandmother, grandson or

granddaughter;]”

18. Section 9 of the Transplantation of Human Organs and Tissues Act,

1994, provides restrictions on removal and transplantation of human

organs or tissues or both. In the present case, Sub-Section (3) of

Section 9 is relevant, which reads as follows:

“9. (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 reasons 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.”

19. As per Act of 1994, there is no restriction for donation of kidney in

favour of a person who is not a near relative but the only restriction is

that transplantation can be done only after prior approval of the State

Authorization Committee.

20. Rule 7 defines “Authorization Committee”. In the present, case Sub-

Rule (3) of Rule 7 is relevant, which reads as follows:

“7. Authorisation Committee. –

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(3) When the proposed donor and the recipient

are not near relatives, the Authorisation Committee

shall,-

(i) evaluate that there is no commercial

transaction between the recipient and

the donor and that no payment has

been made to the donor or promised to

be made to the donor or any other

person;

(ii) prepare an explanation of the link

between them and the circumstances

which led to the offer being made;

(iii) examine the reasons why the donor

wishes to donate;

(iv) examine the documentary evidence of

the link, e.g. proof that they have lived

together, etc.;

(v) examine old photographs showing the

donor and the recipient together; (vi)

evaluate that there is no middleman or

tout involved;

(vi) evaluate that financial status of the

donor and the recipient by asking them

to give appropriate evidence of their

vocation and income for the previous

three financial years and any gross

disparity between the status of the two

must be evaluated in the backdrop of

the objective of preventing commercial

dealing;

(vii) ensure that the donor is not a drug

addict;

(viii) ensure that the near relative or if near

relative is not available, any adult

person related to donor by blood or

marriage of the proposed unrelated

donor is interviewed regarding

awareness about his or her intention to

donate an organ or tissue, the

authenticity of the link between the

donor and the recipient, and the

reasons for donation, and any strong

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views or disagreement or objection of

such kin shall also be recorded and

taken note of.”

21. In the case of Kuldeep Singh (supra), the Hon’ble Supreme Court held

that:

“12. Where the donor is not “near relative” as

defined under the Act the situation is covered by

sub-section (3) of Section 9. As Form 1 in terms of

Rule 3 itself shows, the same has to be filed in both

the cases where the donor is a near relative and

where he is not, so far as the recipient is

concerned. In case the donor is not a near relative

the requirement is that he must establish that

removal of the organ was being authorised for

transplantation into the body of the recipient

because of affection or attachment or for any

special reasons to make donation of his organ. As

the purpose of enactment of the statute itself

shows, there cannot be any commercial element

involved in the donation. The object of the statute is

crystal clear that it intends to prevent commercial

dealings in human organs. The Authorisation

Committee is, therefore, required to satisfy that the

real purpose of the donor authorising removal of the

organ is by reason of affection or attachment

towards the recipient or for any other special

reason. Such special reasons can by no stretch of

imagination encompass commercial elements.

Above being the intent, the inevitable conclusion is

that the Authorisation Committee of the State to

which the donor and the donee belong have to take

the exercise to find out whether approval is to be

accorded. Such Committee shall be in a better

position to ascertain the true intent and the

purpose for the authorisation to remove the organ

and whether any commercial element is involved or

not. They would be in a better position to lift the

veil of projected affection or attachment and the so-

called special reasons and focus on the true intent.

The burden is on the applicants to establish the

real intent by placing relevant materials for

consideration of the Authorisation Committee.

Whether there exists any affection or attachment or

special reason is within the special knowledge of

the applicants, and a heavy burden lies on them to

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establish it. Several relevant factors like

relationship if any (need not be near relationship

for which different considerations have been

provided for), period of acquaintance, degree of

association, reciprocity of feelings, gratitude and

similar human factors and bonds can throw light

on the issue. It is always open to the Authorisation

Committee considering the application to seek

information/materials from the Authorisation

Committees of other States/State Governments, as

the case may be for effective decision in the matter.

In case any State is not covered by the operation of

the Act or the Rules, the operative executive

instructions/government orders will hold the field.

As the object is to find out the true intent behind

the donor's willingness to donate the organ, it

would not be in line with the legislative intent to

require the Authorisation Committee of the State

where the recipient is undergoing medical

treatment to decide the issue whether approval is

to be accorded. Form 1 in terms requires the

applicants to indicate the residential details. This

indication is required to prima facie determine as to

which is the appropriate Authorisation Committee.

In the instant case, therefore, it was the

Authorisation Committee of the State of Punjab

which is required to examine the claim of the

petitioners.”

22. In the present case, the donor has executed an affidavit before the

Learned 1

st Class Judicial Magistrate and the verification committee

has also examined the donor. The police have also submitted a report.

On consideration of all, the verification committee has come to the

conclusion that commercial transaction between the donor and

recipient is not established. The verification committee has not

submitted report preparing as per the statement made by the donor at

the time of examination of the donor. The donor in her statement

categorically stated that she is the follower of Shri Premanand Maharaj

and she inspired with Maharaj and she want to help someone. She has

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also stated that though there is no documentary evidence to prove

relationship but the husband of the donor used to work as driver of the

recipient and they also used to visit her home including at the time of

“Griha Prabesh”.

23. The Verification Committee has also not considered the income of the

donor and her guardian. During examination of the donor by the

verification committee, she has stated that they are having two storied

building and other sources of income but the same has not been

recorded by the verification committee. In the affidavit, the donor has

stated that she is having the income of Rs. 1,20,000/- approximately

but the same has not been considered by the committee.

24. In the case of V. Periasamy (supra), the Madras High Court has held

that:

“15. A careful reading of the above report

dated 13.6.2025 would show that the donor was

working under the petitioner and that their family

became close to the family of the petitioner.

Therefore, it was claimed that they are family

friends. However, the third respondent has given a

finding to the effect that no documents have been

filed to establish that the family of the donor and

the family of the recipient namely the petitioner are

family friends. The third respondent is expecting

the petitioner to prove the negative.

16. It is incomprehensible as to how the

family friends can establish their relationship

through documents. Emotion plays a part in a

relationship involving friends and it is not

determined through documentation. Hence, the

very basis, on which, the report has been given by

the third respondent, lacks sound reasoning.

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17. It is also seen from the records that all the

other relevant forms have been filed along with the

certificate and the only ground that has been put

against the petitioner is that the third respondent

has come to the conclusion that the donor and the

recipient did not establish through the documents

that they are family friends. The decision taken by

the first respondent - Committee purely on the

basis of the report of the third respondent -

Committee does not satisfy the mandatory

requirements under Rule 23 of the Rules. There is

no independent application of mind and the

decision taken by the first respondent - Committee

suffers from error of law apparent on the face of the

impugned order.”

25. In the case of Sudha Mathesan (supra), the Madras High Court held

that:

“17. Let us put ourselves in the shoes of the

applicants. They can only assert that there is no

commercial dealing. They cannot be called upon to

prove the negative. Rule 17 provides for scrutiny of

application. In case of doubt, explanation can be

sought from the applicants and there can also be

verification done through the officials of the

Government. Too much of burden cannot be laid on

the shoulders of the applicants. Unless there is

definite material to establish that there are

financial dealings involving the parties, permission

ought not to be withheld or rejected. If the donor

states that out of love and affection, he/she is

making the donation, in the absence of any credible

reason, the averment should not be doubted. The

Government must come out with definite guidelines

in this regard. Otherwise, the issue will be left to

the arbitrary discretion of the Authorisation

Committee. If the recipient is well placed and

connected, the decision of the committee will swing

in his favour. If the recipient is not all that

influential, by passing a template order, permission

can be rejected. One must take note of the fact that

parliament never intended to rule out donation by

non-near relatives. The parliamentary intent ought

not to be frustrated by adopting a rigid approach.

One need not take a cynical view that a non-near

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relative will not donate out of altruistic

considerations.”

26. In the present case, admittedly there is no commercial transaction

between the donor and the recipient. The only issue is that the donor is

not a near relative. The donor is agreeable to donate her kidney to the

recipient. As per affidavit, executed before the Learned 1

st Class

Judicial Magistrate out of compassion, the donor is agreeable without

any pressure or financial consideration, solely to save a needy person

she is donating her kidney. It is also the case of the donor that due to

love and affection and on humanitarian ground, she is ready to donate

her kidney to the recipient. The verification committee has not

considered all the documents submitted by the donor and has also not

considered the statement made by her during her examination by the

verification committee.

27. This Court finds that the verification committee has not considered the

statement of the donor properly, affidavit executed by the donor before

the Learned 1

st Class Judicial Magistrate, the reasons for which the

donor is ready to donate her organ to the recipient and income of the

donor.

28. In view of the above, the report of the verification committee dated 15

th

May, 2026 and the decision taken by the Authorization Committee for

not recommending the proposal of the donor are set aside and quashed.

The Authorization Committee is directed to reconsider the statement of

the donor, her father, the police report and to take fresh decision within

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a period of one (1) week from the date of receipt of the copy of this

judgment and to communicate the same to the petitioner immediately.

29. WPA No. 14608 of 2026 is allowed.

Parties shall be entitled to act on the basis of a server copy of the

Judgment placed on the official website of the Court.

Urgent Xerox certified photocopies of this judgment, if applied for,

be given to the parties upon compliance of the requisite formalities.

(Krishna Rao, J.)