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2012 DIGILAW 895 (GUJ)

DISTRICT APPROPRIATE AUTHORITY v. PRAKASH PATEL

2012-12-28

BHASKAR BHATTACHARYA, J.B.PARDIWALA

body2012
Judgment J.B. PARDIWALA, J. This appeal under Clause 15 of the Letters Patent is at the instance of respondent No.2 of a writ-application under Art. 226 of the Constitution of India and is directed against an order passed by a learned Single Judge dated March 5, 2012 by which His Lordship admitted the writ-application of the original applicant and granted mandatory relief in favour of the original applicant pending final disposal of the main application. 2. The facts leading to filing of this appeal may be summarised as under : 2.1. The respondent No. 1 herein i.e. the original petitioner is a medical practitioner and is operating from two places, namely, Sharda Hospital and Research Centre, Varachha Road, Surat having registration No. GJ-13-0078AAA-2002 and another being Sharda Hospital and Research Centre, Majura Gate, Surat bearing registration No. GJ-13-0354-888-2007. 2.2. On April 16, 2011, the District Health Officer and Appropriate Authority of the District with the Chief from Gandhinagar carried out surprise inspection on .the premises of the petitioner at Varachha Road and, after thorough inspection, collected as many as 66 office copies of forms lying in the clinic. It appears that the original petitioner is a Gynaecologist and possesses a sonography machine. 2.3. During inspection of the clinic, the following shortcomings were noticed by the Authority : (a) Addresses of two clinics had been mentioned in the form; (b) Declaration of pregnant women on Form-F as prescribed under the provisions of Pre-Conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as 'the P.N.D.T. Act' for the sake of brevity) were printed in English language whereas the same should be printed in vernacular languages. (c) The Radiologist who had carried out the sonography had not signed the declaration of the Doctor conducting the ultrasound in 16 forms as required according to the P.N.D.T. Act. (d) Signatures of four pregnant women were not taken in the Form-F which is mandatory according to the P.N.D.T. Act. 2.4. Based on the aforesaid shortcomings referred to above, a show-cause notice dated April 18, 2011 was served upon the petitioner by the District Appropriate Authority, Surat i.e. the appellant herein. On final adjudication, the Authority found that the explanation of the petitioner was not satisfactory and accordingly vide order dated May 23, 2011 cancelled the registration No. GJ-13-0078-AAA-2002 under Sec. 20(2) of the P.C.P.N.D.T. Act. On final adjudication, the Authority found that the explanation of the petitioner was not satisfactory and accordingly vide order dated May 23, 2011 cancelled the registration No. GJ-13-0078-AAA-2002 under Sec. 20(2) of the P.C.P.N.D.T. Act. The sonography machine was sealed with a direction on the original petitioner that the same shall not be used and should be kept in a store room. 2.5. Feeling aggrieved and dissatisfied by the decision of the District Appellate Authority, Surat, the petitioner preferred an appeal before the State Appropriate Authority (P.C.P.N.D.T.), Gandhinagar, Health and Family Welfare Department. 2.6. It was mainly contended by the petitioner before the Appellate Authority that the two addresses printed in one form were not with any mala fide intention but the same was only with a view to avoid mistake in filling the forms from the another hospital of the petitioner. It was also submitted that the patients do not understand Gujarati language or English properly and, therefore, they have to be explained personally. Moreover, Form-F available on Internet is in English. It was conceded by the petitioner that in four forms, the patients had not signed and in 16 forms his own signature was missing. In other 46 forms, as against invasive procedure and M.T.B., it was shown as not applicable. The petitioner gave an assurance to the Appellate Authority that the same would not happen again and it was just a mistake. The petitioner also assured that he would fill up and check the forms himself in future. 2.7. The Appropriate Authority, after taking into consideration all the relevant aspects of the matter, thought fit to confirm the order of the District Appellate Authority and accordingly, dismissed the appeal of the petitioner. 2.8. Feeling aggrieved and dissatisfied with the orders passed by the authorities below and against concurrent findings of fact, the petitioner challenged the two orders by filing Special Civil Application No. 15096 of 2011. 2.9. The learned Single Judge thought fit to admit the petition by issuing Rule and pending disposal of the petition, also thought fit by way of mandatory interim relief to stay the operation of the orders dated 12-8-2011 and 23-5-2011. The learned Single Judge also observed that it will be permissible for the petitioner to operate the machine strictly in accordance with law and rules at his clinic situated at Varachha Road. 3. The learned Single Judge also observed that it will be permissible for the petitioner to operate the machine strictly in accordance with law and rules at his clinic situated at Varachha Road. 3. Being aggrieved and dissatisfied with the grant of such mandatory interim relief, the District Appropriate Authority preferred the present appeal. The Division Bench of this Court vide order dated August 22, 2012, after hearing both the sides, thought fit to stay the order of mandatory interim relief passed by the learned Single Judge during the pendency of this appeal. The appeal has accordingly come up before us for hearing. 4. Mr. Nikhilesh J. Shah, learned Counsel appearing for the appropriate authority vehemently submitted that the learned Single Judge committed a serious error in granting such mandatory relief which virtually amounts to grant of the main relief. Mr. Shah also submitted that the allegations against the petitioner are very serious and one relating to determination of sex and foetus with the help of sonography. He submitted that both the authorities below have concurrently held that there were serious lapses on the part of the petitioner in operating the machine and in maintaining the records of sonography of pregnant women. According to Mr. Shah, in such type of cases, the learned Single Judge should not have exercised his discretion under Art. 226 of the Constitution of India for grant of such mandatory relief at the interim stage. Mr. Shah, therefore, prayed to set aside the order of interim relief passed by the learned Single Judge. 5. On the other hand, Mr. A.D. Oza, the learned Counsel appearing for the original petitioner vehemently opposed this appeal and submitted that the learned Single Judge committed no error, not to speak of any error of law, and therefore, no interference is warranted in the present appeal. Mr. Oza prayed that the learned Single Judge has very exhaustively dealt with each and every aspect of the matter at the time of admission and has taken pains to record the minutest of the details and, only after thorough satisfaction, that the learned Single Judge granted the interim relief. According to Mr. Oza, the discretion exercised by the learned Single Judge in grant of such mandatory interim relief could not be said to be beyond the scope and jurisdiction of Art. 226 of the Constitution of India. Mr. According to Mr. Oza, the discretion exercised by the learned Single Judge in grant of such mandatory interim relief could not be said to be beyond the scope and jurisdiction of Art. 226 of the Constitution of India. Mr. Oza invited our attention to few findings of the learned Single Judge, more particularly, the finding recorded by the learned Single Judge that the petitioner should not be permitted to suffer on account of lack of appropriate seriousness in passing the order and the lack of due diligence and vigilance on the part of the authority in bringing home the act of deviation so as to justify their action. Mr. Oza also invited our attention to the finding recorded by the learned Single Judge that the Court was left with no alternative but to grant the relief which could be termed to be mandatory, but still the order was required to be passed as the petitioner should not be permitted to suffer on the ground of technical aspect. Mr. Oza, therefore, urged before us that there being no merit in this appeal filed by the authority against the interim order the same may be dismissed. 6. Having heard the learned Counsel for the respective parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is whether the learned Single Judge was justified in granting such mandatory interim relief tantamounting to a mandamus at an interim stage. 7. In Deoraj v. State of Maharashtra, reported in 2004 (4) SCC 697, the Supreme Court has very succinctly explained as to how and in which circumstances grant of mandatory relief would be justified. We quote the following observations of the Supreme Court as they appear in Paras 11 and 12 : "11. xxx xxx xxx An order of interim relief mayor may not be a reasoned one but the factors of prima facie case, irreparable injury and balance of convenience do work at the back of the mind of the one who passes an order of interim nature. Ordinarily, the Court is inclined to maintain status quo as obtaining on the date of the announcement of the proceedings. Ordinarily, the Court is inclined to maintain status quo as obtaining on the date of the announcement of the proceedings. However, there are a few cases which call for the Court's leaning not in favour of maintaining the status quo and still lesser in percentage are the cases when an order tantamounting to a mandamus is required to be issued even at an interim stage. There are matters of significance and of moment posing themselves as moment of truth. Such cases do cause dilemma and put the wits of any Judge to test. 12. Situations emerge where the granting .of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases, the availability of a very strong prima facie case of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing) and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent." 8. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent." 8. The grant of mandatory reliefs which would nullify the disposal of the main petition was strongly deprecated by the Supreme Court in the decision in State of U.P. v. Ramona Perhar, AIR 1995 SC 241 in the following words (Para 4 at p. 243 of AIR) : "Passing of interim order more particularly of a mandatory nature is neither a matter of course nor a matter of charity. The power to grant interim orders is coupled with the duty to consider all the relevant facts and legal principles relevant in that behalf." 9. Bearing the aforesaid principles in mind, we shall now proceed to consider whether the learned Single Judge was justified in granting the interim relief. 10. We have noticed that the allegations against the petitioner are one which concerns the provisions of the P. N. D. T. Act. The tests which are available as of today and which can incidentally result in determination of the sex of the child are prohibited. The Statement of Objects and Reasons makes this clear. The statement reads as under : "The pre-natal diagnostic techniques like amniocentesis and sonography are useful for the detection of genetic or chromosomal disorders or congenital malformations or sex linked disorders." The Para 4 reads thus : "Accordingly, it is proposed to amend the aforesaid Act with a view to banning the use of both sex selection techniques prior to conception as well as the misuse of pre-natal diagnostic techniques for sex selective abortions and to regulate such techniques with a view to ensuring their scientific use for which they are intended." 11. It is clear that the P.N.D.T. Act proposes to control and ban the use of these selection techniques both prior to conception as well as its misuse after conception and it does not totally ban these procedures or tests. Both the authorities below have concurrently held that deficiency or inaccuracy in filling Form-F prescribed under Rule 9 of the Rules made under the P.N.D.T. Act was noticed. Both the authorities below have concurrently held that deficiency or inaccuracy in filling Form-F prescribed under Rule 9 of the Rules made under the P.N.D.T. Act was noticed. As a matter of fact, it appears from the order of the Appellate Authority that the petitioner also conceded that there had been some lapses and had assured the authorities that he would be careful in future. However, that would not be the end of the matter. We are not hearing the main petition, but we are only adjudicating on a limited issue whether the learned Single Judge was justified in granting such mandatory relief. Any observations on merits at our end would prejudice the case of either side. Therefore, we refrain from observing anything on merits of the two orders passed by the authorities. 12. We may only say that a very important question of law fell for the consideration of the Full Bench of this Court in the case of Suo Motu v. State of Gujarat, reported in 2009 Cri. LJ 721 (FB). The question was as under : "(iv) Whether any deficiency of inaccuracy in filing Form-F as required under the statutory provisions is merely a procedural lapse?" The Full Bench of this Court answered the question as under : "7. As seen earlier, the Act and the Rules made thereunder provide for an elaborate scheme to ensure proper implementation of the relevant legal provisions and the possible loop-holes in strict and full compliance are sought to be plugged by detailed provisions for maintenance and preservation of records. In order to fully operationalise the restrictions and injunctions contained in the Act in general and in Secs. 4, 5 and 6 in particular, to regulate the use of pre-natal diagnostic technique, to make the pregnant woman and the person conducting the pre-natal diagnostic tests and procedures aware of the legal and other consequences and to prohibit determination of sex, the Rules prescribe the detailed forms in which records have to be maintained. Thus the Rules are made and forms are prescribed in aid of the Act and they are so important for implementation of the Act and for prosecution of the offenders, that any improper maintenance of such record is itself made equivalent to violation of the provisions of Secs. 5 and 6, by virtue of the proviso to sub-sec. (3) of Sec. 4 of the Act. 5 and 6, by virtue of the proviso to sub-sec. (3) of Sec. 4 of the Act. It must, however, be noted that the proviso would apply only in cases of ultra-sonography conducted on a pregnant woman. And any deficiency or inaccuracy in the prescribed record would amount to contravention of the provisions of Secs. 5 and 6 unless and until contrary is proved by the person conducting such ultra-sonography. The deeming provision is restricted to the cases of ultra-sonography on pregnant women and the person conducting ultra-sonography is, during the course of trial or other proceeding, entitled to prove that the provisions of Secs. 5 and 6 were, in fact, not violated. 8. It needs to be noted that improper maintenance of the record has also consequences other than prosecution for deemed violation of Secs. 5 or 6. Section 20 of the Act provides for cancellation or suspension of registration of Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic in case of breach of the provisions of the Act or the Rules. Therefore, inaccuracy or deficiency in maintaining the prescribed record shall also amount to violation of the prohibition imposed by Sec. 6 against the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and expose such clinic to proceedings under Sec. 20 of the Act. Where, by virtue of the deeming provisions of the proviso to sub-sec. (3) of Sec. 4, contravention of the provisions of Secs. 5 or 6 is legally presumed and actions are proposed to be taken under Sec. 20, the person conducting ultra-sonography on a pregnant woman shall also have to be given an opportunity to prove that the provisions of Secs. 5 or 6 were not violated by him in conducting the procedure. Thus, the burden shifts on to the person accused of not maintaining the prescribed record, after any inaccuracy or deficiency is established, and he gets the opportunity to prove that the provisions of Secs. 5 and 6 were not contravened in any respect. Although it is apparently a heavy burden, it is legal, proper and justified in view of the importance of the Rules regarding maintenance of record in the prescribed forms and the likely failure of the Act and its purpose if procedural requirements were flouted...." 13. 5 and 6 were not contravened in any respect. Although it is apparently a heavy burden, it is legal, proper and justified in view of the importance of the Rules regarding maintenance of record in the prescribed forms and the likely failure of the Act and its purpose if procedural requirements were flouted...." 13. Upon analysis and appreciation of the scheme and provisions of the Act and Rules made thereunder, the Full Bench finally answered the question in the following words: "(iv) Deficiency or inaccuracy in filling Form-F prescribed under Rule 9 of the Rules made under the P.N.D.T. Act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse, but an independent offence amounting to contravention of the provisions of Sec. 5 or 6 of the P.N.D.T. Act and has to be treated and tried accordingly. It does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of Sec. 5 or 6 of the Act and the Court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filling up the forms. For example, not maintaining the record of conducting ultra-sonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of Sec. 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her." 14. We may only say that having regard to the facts and circumstances of the case, the learned Single Judge ought to have been very loath and circumspect in granting such mandatory interim relief, more particularly when two authorities have concurrently held against the petitioner. The petitioner may be having a good case on merits and the learned Single Judge may also have found a prima facie case in favour of the petitioner, but mere prima facie case by itself is not sufficient to justify grant of mandatory interim relief in matters of the present nature. For grant of mandatory interim relief, standard much higher than just prima facie case is required. 15. For grant of mandatory interim relief, standard much higher than just prima facie case is required. 15. We are of the opinion that the appeal merits consideration and deserves to be allowed. We, accordingly, allow the appeal. The order of grant of mandatory interim relief passed by the learned Single Judge is set aside. 16. Before parting, we may only say that the Division Bench vide order dated August 22, 2012 had already fixed the hearing of the Letters Patent Appeal on August 30, 2012 peremptorily while staying the operation of the order passed by the learned Single Judge during the pendency of this appeal. 17. Mr. Oza, the learned Counsel appearing for the petitioner submitted that his client is suffering monetary loss everyday as he is unable to operate the machine as the same has been sealed. In such circumstances of the case, we deem fit to request the learned Single Judge to hear and dispose of Special Civil Application No. 15096 of 2011 finally and preferably by January 31, 2013. 18. It goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the question of justification of grant of mandatory interim relief and shall not be construed as an expression of final opinion in the main matter. (HSS) Order accordingly.