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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1587 OF 2009
Dr.Dadasaheb S/o.Popatrao Tarte,
Age-33 years, Occu-Medical Practitioner,
R/o.Amalner, Tq.Patoda,
Dist. Beed. PETITIONER
VERSUS
1. The State of Maharashtra,
Through the Minister,
for Health and Family Welfare
Mantralaya, Mumbai,
1A.The State Appropriate Authority
and Additional Director of Health
Services, State Family Welfare
Department, Pune.
2. The District Counselling Authority,
and District Civil Surgeon
District Civil Hospital,
Beed, Dist. Beed. RESPONDENTS
Mr.V.D.Salunkhe, h/f. Mr.B.A.Shinde, learned counsel for petitioner.
Mr.K.B.Chaudhary, learned AGP for respondents.
(CORAM : P.V.HARDAS AND
A.V.POTDAR, J.J.)
RESERVED ON : 04/08/2009
PRONOUNCED ON : 14/08/2009
JUDGMENT : (Per A.V.Potdar, J.)
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1. Rule.
2. Rule made returnable forthwith. By consent of the parties, the
writ petition is finally heard at the stage of admission.
3. By the present writ petition under Article 14, 226 and 227 of
the Constitution of India, initially the petitioner has prayed for
issuance of a writ of mandamus for direction to the first respondent
to decide the appeal challenging the order passed by the 2nd
respondent dated 30th August 2008, with further prayers for issuance
of writ of mandamus directing the respondents to release the
sonography machine in the light of directions issued by this Court in
Writ Petition No.7973/2008 dated 17th December 2008. During
pendancy of the writ petition, the prayers were added to quash and
set aside the order dated 30/08/2008 passed by the 2nd respondent
suspending the registration of Genetic Clinic of the petitioner at
(Exh.I, paper book page no.39) and to quash and set aside the order
dated 24/03/2009 (Exh.L at paper book page no.52) passed by the
respondent no.1A dismissing the appeal filed by the present
petitioner.
4. Before dealing with the submissions across the bar, it is
necessary to consider the facts which gave rise to file the writ
petition, which can be summarized as.
a) The petitioner is registered medical practitioner, holder of
requisite certificate of registration under the Maharashtra Medical
Practitioner’s Act, 1961. He is also holding Certificate of Registration
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under Pre-conception and pre-natal Diagnostic Techniques.
(Prohibition of Sex Selection) Rules (In short the P.C.P.N.D.T. Act,
under rules thereunder) (Hereinafter referred as the Act and the
rules thereunder) (At Exh.A) in form “B” Rule 6(2)(5) and 8(2) and
under section 19 of the Act of 1994 issued by the competent
designated authority. This certificate is in the name of Padmavati
Hospital, Amalner, Tal.Patoda, Dist. Beed. The certificate is issued
on 30/03/2003 and is valid upto 02/07/2008. The petitioner also
claimed that he is holding valid license to run the Genetic Centre.
The petitioner is using Ultra Sonography Machine of Toshbro S.D.U
350-A in Genetic Centre which is noted in the certificate. Initially
services of one Dr.Deshpande, who is holding requisite qualification
of M.B.B.S. D.N.R.E. were engaged as the authorized radiologist to
operate the equipment. After his demise, services of one
Dr.Bhagyashree Hambire were engaged. This radiologist has
executed necessary agreement (Exh.B) with the petitioner. The
petitioner claimed that he has maintained requisite registers in his
Genetic Centre run by him and is following all the procedures under
the Act and Rules framed thereunder.
b) It is further alleged that on 06/12/2007 at about 2.00
p.m. Taluka Counselling Authority, Incharge Medical Superintendent,
Rural Hospital, Patoda, Dist. Beed alongwith his squad has visited
the centre run by the petitioner under the allegations that the
petitioner is illegally running the centre without maintaining the
requisite record. The said squad seized the sonography machine and
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the record maintained at the centre. Accordingly complaint was
lodged with J.M.F.C. Patoda against the petitioner and the two
radiologists u/s.3(2), 4(3), 29(1) of the Act of 1994. The learned
J.M.F.C. took cognizance of the said complaint under section 23(1),
25 of The P.C. P.N.D.T. Act (Exh.C collectively). Accordingly the
complaint was registered as R.C.C.No. 165/2007. The petitioner
claimed that the time of visit of the said squad he was not present in
the centre.
c) The petitioner has filed an application for return of the
Ultra Sonography Machine before J.M.F.C. Patoda, which application
was rejected on 31/01/2008. Within meantime the petitioner has
also filed a Criminal Application numbered as 219/2008 before this
Court to challenge the legality of RCC No.165/2007. On 16/06/2008,
this Court granted “Rule” and stayed the further proceedings in the
said RCC No.165/2007 during the pendancy of the Criminal
Application. It is further contended that the order passed by the
J.M.F.C. Patoda about the return of the property was challenged
before the Court of Session by filing Criminal Revision application no.
30/2008, but the Court of Revision was not inclined to grant any
relief in the said revision application on the ground “further
proceedings in the criminal complaint are stayed by this Court.”
d) It is further contended that as the Ultra Sonography
Machine was seized, the clinical diagnosis at the centre are stand
still. It is further contended that in the identical situation, order of
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return of sonography machine was passed in writ petition no.
7973/2008 by the Principal Bench at Bombay. The Centre of the
petitioner is situated in rural area, hence to provide better medical
services to the patients, the petitioner has prayed for the similar
reliefs about the return of the Ultra Sonography Machine.
e) It is also contended by the petitioner that the registration of the
Genetic Clinic of the petitioner is cancelled by the authorities on
10/12/2007 (Exh.G) which order is challenged by way of appeal
before the Director of Family Welfare Bureau, Pune. The State
Advisory Committee have heard the appeal and by its decision set
aside the order of cancellation of registration, but suspended the
registration vide order dated 12/08/2008 (Exh.H) In view of this
order, respondent authority suspended the registration of the Genetic
Centre of the petitioner by order dated 30/08/2008 (Exh.I). This
order is challenged before the first respondent by appeal on
01/10/2008. It is further alleged and contended by the petitioner
that before passing the suspension order of the registration of
certificate of petitioner, no show cause notice was issued upon him.
It is also alleged that while taking action u/s. 20(3) of the Act, the
competent authority to record the reasoned order about the
suspension of the registration certificate in the public interest as the
authority has not recorded the reasoned finding about the
suspension of the registration certificate of the petitioner. Hence the
present writ petition for the prayers as stated in para no.3 of this
judgment and as stated in para no.23(B), (C), (BB), (BBB) of the writ
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petition on the grounds stated in para no.17(A) and 17(B) of the writ
petition.
5. In response to the notice issued by this Court, the respondents
appeared in the writ petition and filed an affidavit in reply of one
Dr.Sudhakar Sudkoji Ambekar, the Assistant Director, State Family
Welfare, Pune to oppose the admission of the writ petition inter alia
contending that
a) In most of the Indian family, female child is not welcomed
resulting in tremendous growth of Genetic Counseling Centre for
female foeticide. Such abuse of technique is crying against the
female sex diminishing the dignity and honour of women. The
P.N.D.T. (Regulation of Prohibition of Misuse) Act of 1994 and
P.C.P.N.D.T. (Prohibition of Sex Selection) Act 2003 was enacted to
control and misuse of such tests and techniques. Accordingly the
Government has set up the forum and various authorities for the
purpose to implement the Act at various levels for their respective
jurisdiction. In addition to this forum, Additional Director of Health
Services (F.W.N.C.H. And S.H.) Pune has been declared as State
Appropriate Authority. These forums and authorities are functioning
as per the provisions for the implementation of P.C. And P.N.D.T. Act
in the entire State.
b) It is alleged that in the present case during the visit of
team of Taluka Appropriate Authority to the Genetic Clinic of the
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petitioner, they noticed (i) booklet of P.C.P.N.D.T. Act and rules as per
Rule 17(2) was not found kept, (ii) authorised radiologist was not
found present in the sonography room, (iii) consent of some of the
patients was not obtained as required u/s. 5 of The P.C.P.N.D.T. Act,
(iv) demise of authorized radiologist Mr.Deshpande was not informed
to the appropriate authority, (v) appointment of new radiologist
Dr.Hambire was not informed to the appropriate authority, (vi)
timetable about the visit of radiologist was not displayed in the clinic,
(vii) monthly report about the sonography centre was incomplete,
(viii) Form-F and Form-G are not update as required u/s. 29(1) of The
P.C.P.N.D.T. Act of 2003. According to the deponent, these acts of the
petitioner amount to be violation of the provisions of The P.C.P.N.D.T.
Act and rules thereunder. Hence the sonography machine and the
record of the clinic of the petitioner was sealed and seized.
Thereafter complaint was lodged with a J.M.F.C. Patoda. Initially, the
District Appropriate Authority and Civil Surgeon, Beed cancelled the
registration vide its letter dated 10/12/2007.
c) It is further contended that the petitioner submitted an
appeal u/s. 21 of the Act before the State Appropriate Authority,
Pune which appeal was received on 25/02/2008, and was placed
before the State Advisory Committee meeting held on 24/06/2008
wherein the order of cancellation was revised and the registration
was suspended vide communication dated 12th August 2008 to the
District Appropriate Authority and the same was communicated to
the petitioner vide letter dated 30th August 2008.
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d) It is further contended by the respondent that the
petitioner has further submitted an appeal before the Minister of
Health and Family Welfare, State of Maharashtra dated 29/09/2008
which was kept before the Advisory Committee of which meeting was
held on 23/03/2009. This appeal was not considered by the
Committee as the case against the petitioner is subjudiced before the
competent criminal court and this decision was communicated to the
petitioner vide letter dated 27/04/2009. It is further alleged that
earlier on 24/01/2004, and on 06/02/2004, the District Appropriate
Authority have warned the petitioner in writing for not properly
maintaining the record, still the petitioner has ignored these
warnings. It is also urged that the acts of the petitioner indicates
that he has approached this Court with a malafied intention just to
delay the proceeding pending before the Trial Court, hence the
petitioner is not eligible for any reliefs as claimed for.
6. In the further affidavit in reply, it is contended by the
respondent that the petitioner has not intimated about the demise of
authorized radiologist Shri.Deshpande and appointment of Dr.
Hambire to the appropriate authority. According to the respondent,
considering the gravity of the case and the lapses committed by the
petitioner, he is not entitled for any relief. According to the
respondents that the facts on which the rule was given in W.P. No.
7973/2008, can not be compared with the case that of the petitioner,
hence that citation is not applicable in the present case. The
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respondents support the decision taken by the State Advisory
Committee about the suspension of the organization of the petitioner
vide order impugned in a writ petition dated 23rd March 2009
communicated to the petitioner vide letter dated 27/04/2009, and
lastly prayed for dismissal of the writ petition with costs.
7. Heard respective counsels for the parties in the background of
these pleadings.
8. Chapter (vi) of The P.N.D.T. Act of 1994 deals with the
registration of Genetic Counselling Centres, Genetic Laboratories and
Genetic Clinics. Section 20 of the said chapter deals with the
cancellation or suspension of the registration while section 21 of the
Act deals with the appeals provided under the Act.
Section 20 : Cancellation or suspension of registration :
1. 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.
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, and 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.
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3. 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).
Section 21 : Appeal : The Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic may, within thirty days from the
date of receipt of the order of suspension or cancellation of
registration passed by the Appropriate Authority under section
20, prefer an appeal against such Order to —
(i) the Central Government, where the appeal is against the
order of the Central Appropriate Authority; and
(ii) the State Government, where the appeal is against the order
of the State Appropriate Authority;
in the prescribed manner.
On plain reading of sub section (1) and (2), it is clear that the
Appropriate Authority is required to issue show cause notice before
suspension or cancellation of the registration as the case may be,
disclosing the reasons mentioned in the said notice. It is further
clear that the reasonable opportunity of hearing be given to the
concerned before taking the action of suspension or cancellation of
the registration as the case may be. At the same time, the plain
reading of sub section (3), it is clear that in case it is expedient in the
public interest, the competent authority may pass the reasoned order
of suspension or cancellation of the registration as the case may be
even without notice of such action to the concerned.
9. On reading the order under challenge at Exh.I (at page no.39)
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and Exh.L (page no.55) as well as the contents of the affidavit in reply
filed by the respondent, it is further clear that before passing these
orders, no show cause notice was served on the petitioner or any
opportunity was given to the petitioner before the action of
cancellation or suspension of the registration of the clinic of the
petitioner was taken. At the same time, order impugned is not a
reasoned order as contemplated under sub section 3 of section 20 of
the Act of 1994. From these facts, it is apparent on the face of it that
the order impugned is not in conformity with the compliance of sub
section 1 to sub section 3 of section 20 of the Act of 1994. The
second point required for consideration is abut the authority who has
passed the impugned order dated 24/03/1990. The contents of the
order clearly discloses that the decision of the order under challenge
was taken in the meeting of the State Advisory Committee whereas
sub section (3) of section 20 contemplate the appellant authority is a
State Government against the order passed by the State Appropriate
Authority. The copy of the appeal memo filed by the petitioner is at
Exh.7 (at page no.40) which is addressed to the Hon’ble Minister of
the State for Health and Family Welfare State of Maharashtra. This
fact is also clear from the unnumbered para no.1 of the impugned
order at Exh.L (page no.55), but in this appeal, the decision was
taken by the State Advisory Committee, which is not in accordance
with the provisions under sub section (ii) of section 21 of the Act of
1994.
10. The prayers in terms of prayer clause “C” of the writ petition is
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about the return of property seized by the Appropriate Authority
during their alleged visit dated 06/12/2007 to the Genetic Clinic of
the petitioner. The attack of the learned advocate for the petitioner
about this statement is two fold. First that the Ultra Sonography
Machine which was seized by the visiting squad to the Genetic Clinic
of the petitioner is otherwise also used for the clinical diagnosis of
the patients coming in the dispensary i.e. Padmavati Hospital and
hence it is necessary to release the Ultra Sonography Machine and
second considering the provisions under the Act of 1994 and the
rules made thereunder, the authority is not empowered to seize the
Ultra Sonography Machine.
11. Section 30 in Chapter (viii) of the Act of 1994 deals with powers
to search and seize records, which read as follows :
Section 30 : Power to search and seize records etc. : (1) If
the Appropriate Authority has reason to believe that an offenceunder this Act has been or it being committed at any Genetic
Counselling Centre, Genetic Laboratory of Genetic Clinic, such
Authority or any Officer authorized thereof in this behalf may,
subject to such Rules as may be prescribed, enter and search
at all reasonable times with such assistance, if any, as suchauthority or Officer considers necessary, such Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic and
examine any record, register, document book, pamphlet,
advertisement or any other material object found therein and
seize the same if such Authority or Officers has reason to
believe that it may furnish evidence of the commission of an
offence punishable under this Act.
(2) The provisions of the Code of Criminal Procedure, 1973
relating to searches and seizures shall, so far as may be apply
to every search or seizure made under this Act.
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At the same time, Rule 12 of the Rules of 1996 deals with the
procedure for search and seizure by the Appropriate Authority which
read as follows.
Rule 12 : Procedure for search and seizure : (1) The
Appropriate Authority or any Officer authorized in this behalf
may enter and search at all reasonable times any Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic, in
the presence of two or more independent and respectable
persons, for the purposes of section 30.
(2) A list of any document, record, register, book, pamphlet,
advertisement or any other material object found in the Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic and
seized shall be prepared in duplicate at the place of effecting
the seizure. Both copies of such list shall be signed on every
page by the Appropriate Authority or the Officer authorised in
this behalf and by the witnesses to the seizure :
Provided that the list may be prepared, in the presence of
the witnesses, at a place other than the place of seizure if, for
reasons to be recorded in writing, it is not practicable to make
the list at the place of effecting the seizure…………….
12. On clear reading of the provisions u/s. 30 of the Act of 1994 as
well as the provisions under Rules of 1966 made it clear that the
Appropriate Authority is empowered to seize the documents, record,
register, book, pamphlet, advertisement or any other material object
found in the Genetic Clinic, Genetic Centre, or the Genetic
Laboratory. But on clear and bare reading of the provision under the
Act as well as the rules it nowhere provides that the authority is
empowered to seize the machinery/the machine used in the Genetic
Clinic. If it is so, the authority is not empowered to seize the Ultra
Sonography Machine under the provisions of Law. In the premise,
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the case of the petitioner is covered under the citation as the rule
given by the Principle Bench of this Court in Writ Petition No.
7973/2008 is applicable to the present case. In the premise, we set
aside the order of the seizure of the Ultra Sonography Machine and
direct to return the seized Ultra Sonography Machine to the
petitioner.
13. For the discussion made in the above foregoing paragraphs, it
is apparent that the order under challenge was not passed by the
authority empowered under the law or otherwise the order was
passed without any authority as contemplated under section 21(ii)
and also in contravention of the provisions u/s. 20(1) to (3) of the Act
of 1994. If it is so, then these orders impugned under the writ
petition liable to be quashed and set aside. Accordingly we quash
and set aside the impugned orders dated 30/08/2008 and
24/03/2009 and remit the matter back for hearing afresh in
accordance with Law within the period of 4 weeks from the date of
communication of this order before the authority where the appeal is
filed by the present petitioner. The Appellate Authority to dispose of
the appeal within the period of 3 months thereafter in accordance
with Law after giving proper opportunity to all the concerned. The
Appellate Authority to decide the pending appeal without influencing
the fact that the criminal case is pending before the J.M.F.C.Patoda,
Dist. Beed.
14. Rule thus made absolute as indicated above and the writ
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petition stands disposed of accordingly with no order as to costs.
(A.V.POTDAR, J.) (P.V.HARDAS, J.)
khs/JULY 2009/wp1587-09
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