HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 29
Case :- WRIT – C No. – 46858 of 2013
Petitioner :- Dr. Manoj Agrawal
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Vivek Saran
Counsel for Respondent :- C.S.C.
Hon’ble Sheo Kumar Singh,J.
Hon’ble Pradeep Kumar Singh Baghel,J
1. Heard Sri Vivek Saran, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.
2. On 04.09.2013 when the matter was entertained, learned Standing Counsel was given time to obtain instructions pursuant to the directions so given.
3. Written instructions is available with the learned Standing Counsel, which was placed and has been perused.
4. Under challenge in this writ petition is the order passed by respondent no. 2 dated 07.08.2013, by which exercising power under Section 30 of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, the ultrasound machine being run in the petitioner’s nursing home has been seized, and the registration to run the aforesaid machine, has been cancelled.
5. One of the ground raised by the learned counsel for the petitioner is that before passing of order of cancellation, for which the authorities are empowered under Section 20 of the Act, no show cause or any opportunity of hearing has been given and, therefore, the impugned order besides being illegal is in violation of principles of natural justice.
6. For convenience, we are to quote Section 20 of the Act at this stage.
20. Cancellation or suspension of registration.-
1. The Appropriate Authority may suo moto, 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.
2. If, after giving a reasonable opportunity 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.
7. A bare perusal of the aforesaid provision makes it clear that petitioner is to be given a show cause notice and after giving a show cause notice and opportunity of being heard, appropriate action for suspension or cancellation of the registration can be taken.
8. Section 30 of the Act permits only search and seizure and that too on being satisfied with various factors.
9. Here is a case where at the present nothing wrong has been reported against the petitioner and it is only on the ground of a complaint case which was filed by the Chief Medical Officer i.e. Complaint Case No. 2021 of 2011, the impugned order has been passed.
10. The complaint was filed about two years back and we are not to go into the merits of the complaint, which has to be decided on its own merit with all expedition, in which petitioner is to cooperative.
11. So far as the impugned order is concerned, we feel pursuaded to remit the matter back to the respondent no. 2 for a fresh decision for want of any show cause notice or any opportunity, so that on getting the notice the petitioner may be able to place his version to the competent authority.
12. After giving the show cause notice and on receipt of the reply, the respondent no. 2 is to consider the same on the merits and he has to pass a speaking order.
13. For the reasons given above the impugned order dated 07.08.2013 passed by the District Magistrate, Agra/ respondent no. 2 is set aside and we direct the petitioner to file a certified copy of this order within a period of ten days before the respondent no 2, upon which he will immediately give a show cause notice stating the charges against him within a period of one week, to which petitioner is to respond within another period of one week and decision by the authority preferably within a period of ten days thereafter.
14. It is made clear that if the petitioner do not file certified copy of this order, as directed above, then the effect of the order, which has been passed in his favour will not be available to him.
15. It is further provided that after passing the fresh order by the respondent no. 2, the consequence is to follow and both the sides are to abide as the law permits.
16. Learned Standing Counsel is also directed to inform about this order to the District Magistrate / respondent no. 2, so that he may get the needful done within the time so allowed.
17. Let a certified copy of this order be made available to learned Standing Counsel without any payment, and copy to the petitioner on payment of usual charges, if applied, by 16.09.2013.
Order Date :- 11.9.2013