District vs Dr.Kaushik on 6 October, 2010

Gujarat High Court

CA/11280/2010 2/ 7 ORDER

 IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

CIVIL APPLICATION – FOR VACATING INTERIM RELIEF No. 11280 of 2010

IN SPECIAL

CIVIL APPLICATION No. 12313 of 2009

=========================================================

 

DISTRICT PANCHAYAT & 1 – Petitioner(s)

Versus

 

DR.KAUSHIK

BABULAL SHAH – Respondent(s)

========================================================= Appearance

:

MR NIKHILESH J SHAH for Petitioner(s) : 1 – 2. MR SAMIR J DAVE for Respondent(s) : 1,

=========================================================

 

CORAM:

 HONOURABLE MR.JUSTICE H.K.RATHOD

 

 

 

Date

: 06/10/2010

 

ORAL

ORDER

 

 

 

Heard

learned advocate Mr. NJ Shah on behalf of applicant.

This

application is preferred by District Panchayat through Appropriate authority in PNDT Act, CDHO District Panchayat, Bhadra, Ahmedabad through Dr. RR Vaidya Additional District Health Officer. The following averment made in para 2, 3, 4, 5 and 6 of present application are relevant, therefore, quoted as under:

2. Reply

& rejoinder to the SCA are filed. Thus the pleadings are almost complete, but for want of the matter being taken up for hearing, the petitioner is enjoying the stay, against show cause notice, granted by this Hon’ble Court vide order dated 26/2/2010. (Annexure A)

 

3. The

same is against the settled principles of Law writ not maintainable against show cause notice. In another case under the Pre Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex selection) Act, 1994 PCPNDT Act for short involving sealing of sonography machine and already acted upon suspension of registration, the very same Hon’ble Court has granted stay but the same has been quashed and set aside by the Division Bench of this Hon’ble Court (Coram: Hon’ble the Chief Justice Mr. S. J. Mukhopadhya and Hon’ble Mr. Justice Anant Dave). Copy of which is Annexed herewith as Annexure B. Other decisions relied upon by the applicant are as under:

1994

(2) GLR 1639 = 1995 (1) GLH 734

(1985)

2 SCC 412

 

1989

ELT-43-24 = 1991 ECR 32-401

1996

GCD 3- 445

 

1997

GLH 1- 431

 

2007

JX(Guj) 0-357

 

 

4. Continuation

of the interim relief amounts to allowing the petition by interim order which is also not permissible as per settled legal proposition. The order of the ad interim relief does not deal with the judgments relied by the applicant. The judgment relied by the other side is not applicable to the facts of the case.

 

5.As

the petitioner has been found to be indulging in activity of sex determination, an act contrary to the provisions of the Act/Rule and thus frustrating the very basic purpose of the Act, it is in the interest of the society public at large to refrain the petitioner from conducting any activity contrary to statutory provision under the PCPNDT Act. Not to let an impression being spreaded to Medical fraternity that the PCPNDT Act can be taken lightly and flouted easily without having any fear of any deterrent, considering as the Hon’ble High Court being there as a savior, it is desirable to vacate the stay and let the proceeding under PCPNDT Act pursuant to the show cause notice under challenge, be allowed to go further.

 

 

6. The

petitioner has not even avail of the effective alternative remedy. This wise also the main petition deserves to be rejected. The applicant herein rely upon the contentions raised in the reply filed in the main SCA and be permitted to raise further contention, in support of the case to vacate the interim relief, as and when required.

 

 

In

view of aforesaid averment made in present application as referred above, prayed made in this application in para 8(B) is quoted as under:

 

Vacate

the interim relief passed in SCA no. 12313/2009 vide order dated 26/2/2010 Annexure A.

 

 

This application was filed in Registry of this Court on 20/8/2010 with a prayer to vacate interim relief passed in SCA no. 12313/2009 dated 26/2/2010. The order passed by this Court on 26/2/2010, at that occasion, learned advocate Mr. NJ Shah remained present on behalf of respondent and after hearing him, order has been passed by this Court which is quoted as under:

Heard Mr.B.B. Naik, learned Senior Advocate appearing with Mr.Samir J. Dave, learned Advocate for the petitioner and Mr.N.J. Shah, learned advocate for the respondents

It is contended by the learned Senior Advocate for the petitioner that only for a technical mistake, which is a clerical mistake, whereby instead of referring Registration No.735 of Isanpur, by mistake the Registration No.300 of Maninagar, was mentioned by the petitioner in the statutory Form ‘first information report’ and it is the main ground for issuance of the show cause notice to the petitioner. It is also contended by the learned Senior Advocate that the clinic of the petitioner at Maninagar bearing Registration No.300 was in a sealed condition on the date on which the said form ‘F’ in question was filled. It is submitted that only by mistake the Registration Number of the said clinic was mentioned in Form ‘F’. The learned Senior Advocate has also drawn the attention of the Court to the show cause notice at Annexure-C (page No.29) and has submitted that the very last paragraph of the said show cause notice shows the prejudicial approach on the part of the respondent-authority.

 

 

During the course of hearing, it is contended by the learned advocate for the respondents that the present petition has been filed at a premature stage since only a show cause notice has been issued at this stage by the respondent-authority. In support of this submission, he has relied upon the decisions of Supreme Court reported in (1985) 2 SCC 412 and (1995) 6 SCC 326 as well as a decision of this Court reported in 1994(2) GLR 1639.

 

As against the said decisions relied upon by the learned advocate for the respondents, the learned Senior Advocate Mr.B.B. Naik for the petitioner has relied upon a decision of the Apex Court reported in the case of Whirlpool Corporation v. Registrar of Trade Marks, reported in AIR SC 1999 22.

 

Having considered the rival contentions advanced by the learned counsel appearing for the respective parties, documents on record as well as the reply affidavits and the rejoinder affidavit, it transpires that it is a typographical mistake committed by the petitioner by referring to Registration No.300 of Maninagar instead of No.735 of Isanpur in the Form ‘F. Further, it is pertinent to note that on the date of filling in the said form, the sonography machine installed at Maninagar clinic of the petitioner had already been sealed by the respondent-authority. Therefore, there was no question of carrying out sonography in the said machine. The attention of the Court is also drawn to the show cause notice at Annexure-C to the petition. It would be beneficial to quote the relevant portion of the said show cause notice, which reads as under : 

So please explain within 7 days of the receipt of this notice, why PNDT Registration of your clinics at Maninagar (Reg. No.300) & Isanpur (Reg. No.735) should not be suspended till the judgment of Hon’ble court in case No.785/2009 comes under PC PNDT Act for the contraventions mentioned above. If the same is not complied within the aforementioned time period, the necessary actions as per PC PNDT Act will be initiated against you.

 

 

Thus, in view of the aforesaid contents of the show cause notice, prima facie I am of the opinion that the respondent-authority has prejudged the entire issue. Further, taking into consideration the ratio of the decision of the Apex Court in the case of Whirlpool Corporation (supra), I am of the opinion that the ad interim relief granted by this Court is required to be confirmed.

 

In view of the aforesaid, Rule, returnable on 23rd April 2010. The ad interim relief granted earlier is hereby confirmed.

 

 

This Court has issued Rule, returnable on 23/4/2010 and interim relief granted earlier is confirmed by this Court. Now applicant wants to vacate such confirmed interim relief by way of present application. The averment, which has been made by applicant in present application as if that present application is not merely an application for vacating interim order but it is an Appeal challenging order passed by this Court dated 26/2/2010. Such averment are not proper when application for vacating interim relief as preferred by respective parties. However, this Court has confirmed interim relief granted earlier after giving reasonable opportunity of hearing to learned advocate Mr. Shah. In such circumstances, applicant is having alternative remedy to approach by way of filing LPA before Division Bench of this Court. Instead of that, present application is filed with a prayer to vacate confirmed interim relief which order has been passed by this Court after hearing learned advocate Mr. NJ Shah.

Therefore,at this stage, it is very difficult for this Court to entertain such application made by applicant because if this Court required to vacate confirmed interim relief, then this Court must have to examine merits of matter which amounts to almost final hearing of matter. So, without examining matter finally this Court can not grant relief which is prayed by applicant in present application.

According to my opinion, this application, at this stage, is not entertained by this Court. However, it is open for applicant if they so desire to challenge order passed by this Court on 26/2/2010 by way of filing LPA before Division Bench of this Court. Therefore, only on this ground, this application is not entertained by this Court as petitioner is having alternative effective remedy to challenge such order dated 26/2/2010.

Therefore,present application is disposed of by this Court without expressing any opinion on merits.

 

 

 

(H.K.RATHOD,

Jasma

Advertisements

Author: savedaughters19

This is a coverage of my struggles to save my daughters.I am thank full to my parents not only for Not killing me ,but also helping me save my daughters... My dream- A big shelter house for women who want to give birth to their daughters and raise them up with dignity and self respect , but have to fight their own families to do so. Will have medical facilities and facilities for legal aid. will have training centers for vocational courses so that they can stand up on their own two feet and stop the dependency on their husbands for finances, A child care center run and managed by the inmates, A kitchen and a vegetable farm run and managed by the inmates. At present only a dream.... But with grace of God will become a reality. God will show the way and means to achieve the dream.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s