C/SCA/12881/2009 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.12881 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/ ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO =================================================== YOGESH NATHABHAI CHAUHAN....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) =================================================== Appearance: MR AD OZA, with MR RAJESH K KANANI, ADVOCATES for the Petitioner(s) No. 1 MR PP BANAJI, AGP for the Respondent(s) No.1 & 3 MR NIKHILESH J SHAH, ADVOCATE for Respondent No.2 =================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 09/04/2014 ORAL JUDGMENT (1) By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged order dated 04.08.2009 passed by respondent No.2District Appropriate Authority as well as order in appeal dated 24.09.2009 passed by respondent No.3State Appropriate Authority. Page 1 of 10 C/SCA/12881/2009 JUDGMENT (2) The facts which can be culled out from the record of the petition are that the petitioner, a medical practitioner, is having a clinic, namely, Chiranjivi Hospital and Sonography Clinic at Shihor, Dist. Bhavnagar and got registered his clinic as well as his sonography machine under the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short 'the Act') in the year 2006, certificate of which is annexed with the present petition. It is a matter of record that on 16.01.2009 the District Appropriate Authority decided to carry out surprise check at various clinics and accordingly the clinic of the petitioner was checked. It appears that the main reason for such surprise check was increase of male birth ratio. Record shows that panchnama came to be prepared and the sonography machine of the petitioner came to be sealed. The said proceedings were followed by show cause notice dated 17.01.2009, which indicates that there was breach of Rules 17(1), 17(2), 9(1), 9(4), 10, 9(8) of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (for short 'the Rules'). It is also provided in the show cause notice that Page 2 of 10 C/SCA/12881/2009 JUDGMENT under subsection (3) of Section 20 of the Act, appropriate authority suspended the registration of the petitioner with immediate effect. It further appears that the petitioner immediately gave reply to the show cause notice by communication dated 19.01.2009. Record further indicates that thereafter special meeting of PNDT Advisory Committee, Bhavnagar, was held on 20.01.2009 wherein cases of four doctors, including that of the petitioner, were considered and the committee advised that a criminal complaint be filed against the petitioner. It is also a matter of record that the said order was challenged by the petitioner by way of filing an appeal as provided under Section 21 of the Act, which came to be registered as Appeal No.2 of 2009. The appellate authority disposed of the said appeal on the ground that final order is yet to be passed and while disposing of the said appeal directed District Appropriate Authority, Bhavnagar to consider the reply filed by the petitioner and to take final decision under Section 20(2) of the Act. It appears that after the appeal came to be disposed of, the appropriate authority by order dated 19.05.2009 passed an order whereby the registration of the petitioner's Page 3 of 10 C/SCA/12881/2009 JUDGMENT clinic was cancelled in exercise of powers under Section 17(4)(a) of the Act. It further appears that the petitioner filed an appeal against the aforesaid order, which came to be partly allowed by order dated 08.06.2009 by the appellate authority wherein following observations are made: “In view of the foregoing reasons, the appeal filed by the appellant is partly allowed to that extent only. The Appropriate Authority, Bhavnagar is directed to place the matter before the Advisory Committee for its advice and then pass the order as it deems fit under section 20(2) of the Act within a period of thirty days from the receipt of this order.” (3) After the proceedings came to be referred back to the appropriate authority, as aforesaid, it passed the impugned order dated 04.08.2009 relying upon the earlier order dated 19.05.2009 of the Appropriate Authority, the State Appropriate Authority's order in appeal dated 08.06.2009, the office note of Advisory Committee, Bhavnagar dated 31.07.2009 and the letter of Chairman of the Advisory Committee, Bhavnagar dated 31.07.2009. Being aggrieved by the said order, the petitioner approached the appellate authority under Section 21 of the Act by filing an appeal, which came to be registered as Appeal No.6 of 2009, which Page 4 of 10 C/SCA/12881/2009 JUDGMENT came to be dismissed vide order dated 24.09.2009. Hence, the present petition. (4) It may be noted that this Court on 04.02.2010 passed the following order in the present petition: “RULE returnable in the last week of April 2010. It is pointed out that in identical matters the concerned authority has taken a contrary view. Further, since the sonography machine has been sealed since last one year, and since the registration has also been canceled, it will not be appropriate to continue the same. This penalty seems to be beyond the maximum permissible penalty under the law. In that view of the matter, the impugned orders passed by the authority are ordered to be kept in abeyance till the final outcome of this petition. Direct service is permitted.” (5) It is a matter of record that the respondents authorities herein filed an intercourt appeal being Letters Patent Appeal No.1214 of 2010 wherein while allowing the appeal, the following order is passed by the Division Bench of this Court: “This appeal has been preferred against the interim order dated 4.2.2010 passed by the learned Single Judge in SCA No. 12881 of 2009, which reads as follows: RULE returnable in the last week
of April 2010. It is pointed out that in identical matters the concerned authority has taken a contrary Page 5 of 10 C/SCA/12881/2009 JUDGMENT view. Further, since the sonography machine has been sealed since last one year, and since the registration has also been canceled, it will not be appropriate to continue the same. This penalty seems to be beyond the maximum permissible penalty under the law. In that view of the matter, the impugned orders passed by the authority are ordered to be kept in abeyance till the final outcome of this petition. Direct service is permitted.” The case was taken up on 20.5.2010, when this Court passed adinterim order of stay against the said order. In the light of the interim order, as no stay is now operating in the SCA and in spite of notice issued to the concerned respondent writ petitioner, the said respondent did not choose to appear and oppose the prayer, we are of the view that SCA No. 12881/09 be heard on merits without any interim order. For the reason aforesaid, interim order dated 4.2.2010, as clarified by order dated 13.5.2010 both are set aside. SCA No. 12881 of 2009 be placed before the learned Single Judge immediately for decision on merits. Both Appeal and Civil Application stand disposed of.” (6) Heard Mr.Arun D. Oza, with Mr.Rajesh K. Kanani, learned advocates for the petitioner, Mr.P.P.Banaji, learned Assistant Government Pleader for respondent Nos.1 and 3, and Mr.Nikilesh J. Shah, learned advocate for respondent No.2. (7) Learned advocate for the petitioner has taken this Court through the factual matrix arising out of this petition and has raised various contentions, including the Page 6 of 10 C/SCA/12881/2009 JUDGMENT contention that the petitioner has been arbitrarily singled out in as much as that in case of similarly situated doctors and even in cases where breach is more serious, a lenient view has been taken by the same authority. It is further contended that as such the order dated 08.06.2009 is not properly adhered to by the appropriate authority while passing the impugned order dated 04.08.2009 and has mechanically passed a similar order. It is further submitted that as such no advise for cancellation of the registration was ever given by the advisory committee and therefore the impugned orders are bad and illegal. (8) Learned advocate for the petitioner also invited attention of this Court to the reply to the show cause notice given by other doctors and has further submitted that the same authority has considered such reply, which only says that from now onwards no mistakes or breach of any rule shall be committed, which is accepted by the same authority, whereas a different view is taken in case of the petitioner. Learned advocate for the petitioner further expressing the anguish has submitted that since 2009 Page 7 of 10 C/SCA/12881/2009 JUDGMENT sonography machine of the petitioner is sealed and considering the reply of the show cause notice dated 17.01.2009 it clearly indicates that the reply given by the petitioner are selfsufficient and the same should have been taken into consideration. (9) Learned advocate for the petitioner has further contended that as such in the facts and circumstances of this case as the petitioner is not undertaking any investigation by invasive techniques and he has been registered only for ultrasound, the petitioner is not supposed to fillup FormG as per Rule 10 of the Rules. Learned advocate for the petitioner relying upon Rule 12 of the Rules contended that seal and seizure can be effected if there is reason to believe that it may furnish evidence of commission of an offence punishable under the Act. (10) During course of hearing, on inquiry, it is found that the impugned order dated 04.08.2009 is passed without any notice or hearing. Learned advocate for respondent No.2 has candidly, on the basis of the original record, submitted that no hearing is given to the petitioner. As provided under subsection (2) of Section 20 of the Page 8 of 10 C/SCA/12881/2009 JUDGMENT Act, the appropriate authority has to give reasonable opportunity of being heard to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, which is admittedly not given to the petitioner. Taking into consideration the aforesaid facts, it is therefore not necessary to deal with the other contentions raised by the petitioner, the same are kept open. In light of the aforesaid admitted position therefore the impugned order dated 04.08.2009 is arbitrary and deserves to be quashed and set aside on the short ground of nonobservance of principles of natural justice. Similarly though the said order is confirmed in Appeal No.6 of 2009 by order dated 24.09.2009, both the orders impugned herein dated 04.08.2009 as well as dated 24.09.2009 deserve to be quashed and set aside. Respondent No.2 is hereby directed to hear the petitioner, taking into consideration the material which is already placed before it and after giving an opportunity of personal hearing to the petitioner and permitting the petitioner to adduce further explanation and/or documents. Considering the fact that the issue is of 2009, respondent No.2 shall carry out such an exercise within 04 (four) weeks from today i.e. on or before 09.05.2014. Page 9 of 10 C/SCA/12881/2009 JUDGMENT (11) It may further be clarified that the present petition is allowed only on the aforesaid sole ground, even though the petitioner as well as respondent No.2 has raised various contentions, in view of the aforesaid factual position, this Court has not dealt with other contentions that are raised by the learned advocate for the respective parties. Respondent No.2 authority shall decide the issue de novo, without in any manner influenced by any of the earlier orders as well as the present judgment, only in accordance with law, after giving an opportunity of being heard to the petitioner, strictly on merits. It would be open for the petitioner to take all contentions available to him before respondent No.2 authority. (12) Consequently, the petition is allowed. Impugned orders dated 04.08.2009 as well as dated 24.09.2009 are hereby quashed. However, the position as existed on 17.01.2009 shall continue till final order is passed by respondent No.2. Rule is made absolute to the aforesaid extent. There shall be no order as to costs. Sd/ [R.M.CHHAYA, J ] Bhavesh[pps]* Page
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