SURESH MANJIBHAI PRAJAPATI Vs THE STATE OF GUJARAT & 1

SCA/17994/2006 11/11 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 17994 of 2006
=========================================================
SURESH MANJIBHAI PRAJAPATI – Petitioner(s)
Versus
THE STATE OF GUJARAT & 1 – Respondent(s)
=========================================================
Appearance :
MR NK MAJMUDAR for Petitioner(s) : 1,
MS MAITHILI MEHTA, Ld. AGP for Respondent(s) : 1 – 2.
=========================================================
CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
Date : 30/08/2006
ORAL ORDER
1. The petitioner is before this Court seeking the
relief as under:
?S7(b) Be pleased to issue a writ of mandamus or
any other appropriate writ, order or directions,
quashing and setting aside the order passed by
the respondents authorities dated 9.4.2006 by
which the registration of Genetic Clinic of the
petitioner has been suspended.??
It is also prayed in para (c ) as under:
?SBe pleased to issue a writ of mandamus or any
other appropriate writ, order or directions,
quashing and setting aside the action on the
part of the respondents authorities in applying
seal to the Sonography machine of the
petitioner, in view of the aforesaid peculiar
facts and circumstances of the case.??
The petitioner had been before the Appellate
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Authority by filing appeals, being Appeal Nos. 46 of
2006 and 47 of 2006, which were decided by order
dated 5.7.2006, copy of which is at Annexure-‘H’ to
this petition. It has been prayed in para (d) as
under:
?SBe pleased to issue a writ of mandamus or any
other appropriate writ, order or directions,
quashing and setting aside the order passed by
the Appellate Authority i.e. respondent No.3
dated 7.7.2006 (5.7.2006) by which it has been
ordered to maintain status quo in respect of the
seal applied to the Sonography machine of the
petitioner.??
2. The case of the petitioner is that on 9.4.2006,
the petitioner was served with a show cause notice
(Annexure-‘A’) after the place of the petitioner was
visited and inspected in presence of two independent
witnesses, namely (i) Ishwarji Laxmanji Chavda, aged
48 years, Deputy Mamlatdar, Chitnis Branch and (ii)
Shri Gopibhai Dhanabhai Gamar, aged 41 years, Deputy
Mamlatdar, Chitnis Branch, Collector Office,
Banaskantha, Palanpur alongwith 18 persons of the
Health Department of the District Panchayat,
Banaskantha. In the notice, various iregularities
and breaches of the provisions of The Pre-conception
and Pre-natal Diagnostic Techniques (Prohibition of
Sex Selection) Act, 1994 (hereinafter referred to as
?Sthe Act?? for brevity), are mentioned.
It is also recorded in the notice that Registration
holder Dr. Suresh M. Prajapati, i.e. the petitioner
herein, was not present in the hospital and,
therefore, in the presence of his representative-case writer Shri Laxmanbhai Karsanbhai Patel and in
presence of Shri Jignesh M. Raval, working as a
Pharmacist in ‘Simant Medical Store’, situated in
the campus of the hospital, record, register and the
hospital was inspected/ examined. Looking to the
irregularities and the breaches, including that of
change of address, without permission of the
authority, ‘change of machine’, as in the
application for registration under PNDT Act dated
7.11.2002, ?SWipro GE Logic Alpha 100-M.P.??
Sonography Machine was mentioned, whereas ?SLT
Medical Altra Sonography’ machine was found in the
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consulting room of the petitioner. This change of
machine was not intimated to the appropriate
authority.
It is stated in the notice that under Rule 13 of The
Pre-Natal Diagnostic Techniques (Regulation and
Prevention of Misuse) Rules, 1996, within three
days, appropriate authority is required to be
intimated such change. The notice also called upon
the petitioner to intimate the authorities as to
where the earlier machine is. It is mentioned in the
notice that provisions of Rule 17(1), 17(2), 1(1),
9(4), 5(1), 9(8), 13 are noticed to have been
breached. The petitioner was granted three days’
time to file his explanation.
3. The learned advocate for the petitioner submitted
that, on the same day, i.e. 9.4.2006, the
appropriate authority under the PNDT Act passed the
order and suspended the registration of the
petitioner resorting to the provisions of
sub-section (3) of Section 20 of the Act.
4. The learned advocate for the petitioner submitted
that the notice and the order both are vitiated on
account of violation of principle of natural
justice.
5. The learned advocate for the petitioner invited
attention of this Court to the provisions of Section
20 of the Act. For ready perusal, Section 20 is
reproduced:
?SSection 20. Cancellation or suspension of
registration.-The Appropriate Authority may suo motu,
or on complaint, issue a notice to the
Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic to show
cause why its registration should not be
suspended or cancelled for the reasons
mentioned in the notice.
1.
If, after giving a reasonable opportunity2.
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of being heard to the Genetic Counselling
Centre, Genetic Laboratory or Genetic
Clinic and having regard to the advice of
the Advisory Committee, the Appropriate
Authority is satisfied that there has
been a breach of the provisions of this
Act or the rules, it may, without
prejudice to any criminal action that it
may take against such Centre, Laboratory
or Clinic, suspend its registration for
such period as it may think fit or cancel
its registration, as the case may be.
Notwithstanding anything contained in
sub-sections (1) and (2), if the
Appropriate Authority is of the opinion
that it is necessary or expedient so to
do in the public interest, it may, for
reasons to be recorded in writing,
suspend the registration of any Genetic
Counselling Centre, Genetic Laboratory or
Genetic Clinic without issuing any such
notice referred to in sub-section (1).??
3.
The learned advocate for the petitioner submitted
that sub-section (3) is in the nature of proviso to
sub-Section (1) and (2). By this submission, what
exactly is to be conveyed by the learned advocate,
he could not and did not make it clear. If at all,
the legislature wanted to provide any proviso to
sub-sections (1) & (2) it could have so provided.
The hard reality is that sub-section (3) is what it
is. It is not a proviso to sub-sections (1) & (2).
It operates as sub-sections (1) and (2) operate. Not
only that sub-section (3) is having an overriding
effect as it starts with a ‘non obstente clause’.
In the considered opinion of this Court, sub-section
(3) gives wide powers alongwith discretion to the
authority. The moment the appropriate authority is
of the opinion that it is necessary or expedient, in
the public interest, after recording reasons in
writing, can suspend the registration without
issuing any notice, as is referred to in sub-section
(1) of Section 20.
6. In the present case, the authority issued notice
on 9.4.2006 and alongwith that issued an order on
the same day. The order is of nine pages recording
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the reasons in detail and then recording a fact that
the authority is of the opinion that the
registration of the ‘Genetic Clinic’ of the
petitioner- Dr. Suresh M. Prajapati is required to
be suspended in the public interest and then the
order of suspension is made.
7. The learned advocate for the petitioner relied
upon certain orders passed by this Court in Special
Civil Application No. 13357 of 2006, Special Civil
Application No. 13359 of 2006, Special Civil
Application No. 13360 of 2006 and Special Civil
Application No. 13433 of 2006.
The orders in first three matters are dated
10.7.2006, while the order in the fourth matter is
dated 11.7.2006. The orders were passed on the facts
presented by the learned advocate for the
petitioner. It is evident from the order itself. For
ready perusal, the order is reproduced hereunder:
?SHeard Mr.A.D. Oza, the learned advocate for
the petitioner. The learned advocate submitted
that the clinic of the petitioner-doctor was
visited by a team of persons on 24th May 2006.
They had drawn Rozkam also, but then as they did
not notice anything objectionable, no action was
taken. However, on 25th May 2006 again another
team visited without giving prior notice,
without intimating anything about the so called
irregularities or non compliance or non
observance of Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, 1994.
The authority not only sealed the sonography
machines but also cancelled the registration
with immediate effect.
2. The learned advocate for the petitioner
submitted that the order of cancellation of
registration and also sealing of sonography
machine are in utter disregard of principles of
natural justice, more particularly, the
procedure required to be followed under the law.
Rule. To be heard with Special Civil
Applications No.11531 of 2006 and 11533 of 2006.
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3. The respondents are directed to remove the
seal placed on the sonography machine of the
petitioner. It is clarified that removal of seal
is subject to final orders passed in the matter.
4. The learned advocate for the petitioner
submitted that the petitioner has preferred an
appeal against the order dated 25th May 2006
before the appellate authority, a committee
constituted at the State level for hearing of
such appeals. The learned advocate submitted
that this Committee enlists only ten matters per
month. He submitted that at that speed hearing
of the appeal will take place only after a long
time. He submitted that the petitioner stands
punished for the order passed without issuing
show cause notice and without giving an
opportunity of hearing. The learned advocate for
the petitioner submitted that the authorities
have also initiated criminal proceedings against
the petitioner. He submitted that the
authorities are acting under a drive without
complying with the procedure prescribed under
the law and principles of natural justice.
Order dated 25th May 2006 is stayed. The
respondents are directed to allow the petitioner
to continue his practice pursuant to certificate
dated 27th August 2001. Direct service is
permitted.??
The other orders are also more or less on the same
lines.
8. In those matters, after the other side appeared,
the learned advocate appearing for the respondent
authorities invited attention of the Court to
sub-section (3) of Section 20 and also Rule 12 of
the Rules, 1996. The learned advocate for the
respondents in those matters invited attention to
the explanation contained in sub-rule (1) of Rule
12, which reads as under:
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?SExplanation. In these Rules-‘Genetic Laboratory/Genetic
Clinic/Genetic Counselling Centre’ would
include an Ultrasound Centre/Imaging
Centre/ nursing home/hospital/institute
or any other place, by whatever name
called, where any of the machines or
equipments capable of selection of sex
before or after conception or performing
any procedure technique or test for
pre-natal detection of sex of foetus, is
used;
1.
‘material object’ would include records,
machines and equipments; and
2.
‘seize’ and ‘seizure’ would include
‘seal’ and ‘sealing’ respectively.??
3.
The learned advocate for the respondents appearing
in those matters also invited attention of the Court
to the provisions contained in Rule 13 and other
similar provisions. He also invited attention to
Form No. (B), in which certificate of registration
is to be issued, wherein Clause (3) provides Model
and make of equipments being used (any change is to
be intimated to the Appropriate Authority under rule
13). Those matters are pending for further hearing.
During the pendency, the learned advocate for the
petitioner filed a Civil Application for amendment
and also filed a Civil Application for taking
necessary action against opponent Nos. 1 and 2 and
other concerned persons for having committed
contempt of Court. Those matters were on Board
today. Today, the Court has passed the following
order in the Civil Applications:
?SMr. B.P. Tanna, learned senior advocate for
M/s. Tanna Associates, files affidavit-in-reply,
a copy of which is served to the learned
advocate for the petitioners. The learned
advocate for the petitioners wants time to
respond to the same. At his request, the matters
are adjourned to 1st September, 2006.??
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9. In view of the aforesaid state of affairs, the
order cited by the learned advocate for the
petitioner is not required to be followed unless the
Court is convinced that the facts of both the cases
are similar.
10. In the present case, the notice was issued on
9.4.2006. The order suspending the registration was
passed on 9.4.2006. The petitioner herein has filed
his reply to the show cause notice on 12.4.2006 and
on the same day, he made a request to the
authorities by an application, which is at
Annexure-‘D’ to remove the seal applied to the
hospital and to apply the seal to the Sonography
machine after allowing the petitioner to place the
Sonography machine in a room in a safe condition, so
that it is not damaged. It is informed by the
petitioner that the authorities have exceeded to
that request. The seal applied to the hospital is
removed and the machine is now kept in a separate
room and continued to be in sealed condition.
11. The petitioner has already preferred appeals,
being Appeal Nos. 46 of 2006 and 47 of 2006. Those
appeals are also heard and the Appellate Authority
has not found any reason to change the order passed
by the appropriate authority at the District level.
12. It is at this stage, that the petitioner is
before this Court.
13. Having taken into consideration all the relevant
facts of the case and the provisions of law, the
Court finds no substance in this petition. Hence,
the petition is dismissed.
Sd/-(RAVI R. TRIPATHI, J.)
omkar
To be referred to Reporter.
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Sd/-(RAVI R. TRIPATHI, J.)

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