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2006 DIGILAW 560 (GUJ)

SURESH MANJIBHAI PRAJAPATI v. STATE OF GUJARAT

2006-08-30

RAVI R.TRIPATHI

body2006
RAVI R. TRIPATHI, J. ( 1 ) THE petitioner is before this Court seeking the relief as under : "7 (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 : "be 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 authority by filing appeals, being Appeal Nos. 46 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 : "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 appellate authority. 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 along with 18 persons of the health Department of the District Panchayat, Banashkantha. In the notice, various irregularities and breaches of the provision of the Pre-conception and Pre-natal diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "the Act" for brevity), are mentioned. It is also recorded in the notice that Registration holder Dr. Suresh M. Prajapati,. In the notice, various irregularities and breaches of the provision of the Pre-conception and Pre-natal diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "the Act" for brevity), are mentioned. It is also recorded in the notice that Registration holder Dr. Suresh M. Prajapati,. 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 P. N. D. T. Act dated 7-11-2002, "wipro GE Logic Alpha 100-M. P" Sonography Machine was mentioned, whereas "lt Medical Altra Sonography" machine was found in the 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 Rules 17 (1), 17 (2), 1 (1), 9 (4), 5 (1), 9 (8) and 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,. e. 9-4-2006, the appropriate authority under the P. N. D. T. Act passed the order and suspended the registration of the petitioner resorting to the provisions of sub-sec. (3) of Sec. 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 provisions of Sec. 20 of the Act. (3) of Sec. 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 provisions of Sec. 20 of the Act. For ready perusal, Sec. 20 is reproduced : "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 of 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. (3) Notwithstanding anything contained in sub-secs. (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-sec. (1)". The learned Advocate for the petitioner submitted that sub-sec. (3) is in the nature of proviso to sub-sees. (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-sees. (1) and (2) it could have so provided. The hard reality is that sub-sec. (3) is what it is. It is not a proviso to sub-sec. (3) is what it is. It is not a proviso to sub- secs. (1) and (2 ). It operates as sub-sees. (1) and (2) operate. Not only that sub-sec. (3) is having an overriding effect as it starts with a non-obstante clause . In the considered opinion of this Court, sub-sec. It is not a proviso to sub-sec. (3) is what it is. It is not a proviso to sub- secs. (1) and (2 ). It operates as sub-sees. (1) and (2) operate. Not only that sub-sec. (3) is having an overriding effect as it starts with a non-obstante clause . In the considered opinion of this Court, sub-sec. (3) gives wide powers along with 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-sees. (1) of Sec. 20. ( 6 ) IN the present case, the authority issued notice on 9-4-2006 and along with that issued an order on the same day. The order is of nine pages recording 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 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 : "heard 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 Diagnostics 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. 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 Diagnostics 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 Application Nos. 11531 of 2006 and 11533 of 2006. 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- sec. (3) of Sec. 20 and also Rule 12 of the Rules, 1996. 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- sec. (3) of Sec. 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 : "explanation :- In these Rules - (1) genetic Laboratory/genetic Clinic/genetic Counselling Centre would include an Ultrasound Centre/imaging Centre/nursing Home/hospital/institute on 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; (2) material object would include records, machines and equipments; and (3) seize and seizure would include seal and sealing respectively". 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 : "mr. 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. " ( 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. At his request, the matters are adjourned to 1st September, 2006. " ( 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 room in a safe condition, so that it is not damaged. It is informed by the petitioner that the authorities have acceded 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 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 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.