Prem Niketan Hospital Vs. State of Raj. & Ors.

judfile

1.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
DB Civil Writ Petition No.96/2012
Prem Niketan Hospital Vs. State of Raj. & Ors.
Date:23/07/2012
HON’BLE THE CHIEF JUSTICE MR. ARUN MISHRA
HON’BLE MR. JUSTICE NARENDRA KUMAR JAIN-I
Mr. S.K. Singh, for petitioner.
Mr. Mohd. Rahil Kalam, for respondent State.
In the instant petition, petitioner has
challenged vires of amendment made in Rule 11(2) of
the Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Rules, 1996 (hereinafter
referred to as the Rules of 1996) on the ground that the
Rule does not deal with renewal of already registered
machine. It is also submitted that Rule is against the
provisions of natural justice and the Rule is applicable to
the sonography machines of the organizations which are
not registered at all and not in the cases where they are
registered but it has not been renewed.
Stand of the respondents is that registration
certificate of the petitioner had expired on 18.1.2009 and
petitioner has applied for renewal on 7.6.2011 after more
than a period of two years from the date of expiry.
Application for renewal filed by the petitioner has been
rejected. The Magistrate while passing order dated
1.7.2011 has imposed a condition that petitioner shall
not open the seal and shall not undertake sonography of
any patient without registration. The machine was being
used without any valid registration certificate. Rule-11(2)
2.
of the Rules of 1996 has been substituted vide
amendment dated 31.5.2011. Amendment has rightly
been made in the Rules. It cannot be said to be ultra
vires.
We have heard learned counsel for the parties.
Shri S.K. Singh learned counsel appearing on
behalf of the petitioner has submitted that provisions of
Rule-11(2) cannot be made applicable where registration
was there but there was non-renewal of registration; as
such, the order of confiscation is bad in law. He has also
submitted that provision is not applicable with respect to
the machines which were held by the organization and
were registered once upon a time.
Amended Rule-11(2) of the Rules of 1996 is
quoted below:-
“11(2). The Appropriate Authority or the
officer authorised by it may seal and seize any
ultrasound machine, scanner or any other
equipment, capable of detecting sex of foetus,
used by any organization if the organization
has not got itself registered under the Act.
These machines of such organizations shall be
confiscated and further action shall be taken as
per the provisions of the Section 23 of the Act.”
A bare reading of the Rule makes it clear that
the organization has to be registered otherwise, action
has to be taken as per provisions of Section 23 of the
PCPNDT Act, 1994. We find that Rule cannot be said to
be ultra vires on the basis of submissions made. They are
in realm of interpretation of Rules not pertaining to its
vires. Rule is quite clear. It cannot be said to be illegal or
arbitrary. Thus, we do not find any substance in the
submission that the Rule is ultra vires. Validity of the
order of confiscation is to be seen independently. It is
3.
open for the petitioner to question validity of the order
independently in accordance with law. We find no ground
so as to declare the Rule 11(2) of the Rules to be ultra
vires.
Resultantly, the writ petition is dismissed.
(NARENDRA KUMAR JAIN-I)J. (ARUN MISHRA)CJ.
GS
All corrections made in the judgment/order have been
incorporated in the judgment/order being emailed.
Govind Sharma, PA

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