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2018 DIGILAW 617 (GUJ)

Priyakant Mokalal Kapadia v. State of Gujarat

2018-04-16

RAJESH H.SHUKLA

body2018
JUDGMENT : Rajesh H. Shukla, J. 1. The present petition is filed by the petitioner under Articles 14, 19, 21 and 226 of the Constitution of India as well as under the provision of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "PNDT Act") for the prayers as prayed for inter alia that appropriate writ, order or direction may be issued for quashing and setting aside the impugned orders passed by the respondent No. 2 - Appropriate Authority dated 10.10.2013 and 03.12.2013 at Annexure-C collectively and the order passed by the Appellate Authority in Appeal No. 3/2004 dated 02.06.2014 on the grounds stated in the memo of petition. 2. The facts of the case briefly stated are as follows:-- 2.1 The petitioner is a Doctor by profession having Master Degree. It is the case of the petitioner that the petitioner runs Maternity Hospital and uses sonography machine for the routine check-up of the foetus health so as to ensure the proper growth of the foetus and to safeguard the life of the mother. It is the case of the petitioner that the petitioner was required to change sonography machine and accordingly had changed with New Color Doppler USG Unit. It was also informed to the respondent vide letter dated 01.10.2011 produced at Annexure-A. However the respondent visited the clinic of the petitioner on 05.10.2013 and on the ground that the proper declaration of the patient is not made, irregularities and deficiencies were found resulting in seizure memo and, therefore, suspension of the registration of the licence of the petitioner under Section 20(3) of the PNDT Act. 2.2 Therefore, the petitioner filed Special Civil Application No. 16159/2013 challenging the said decision, however, it was withdrawn in view of the alternative remedy. 2.3 The petitioner then preferred Appeal No. 3/2013, which came to be dismissed. 2.4 Therefore, the present petition is filed challenging the impugned orders on the ground as stated in the memo of petition inter alia non compliance of the procedure for search and seizure under the PNDT Act and also exercise of power under Section 20 of the PNDT Act is arbitrary and in violation of Rules of natural justice. 3. Heard learned Advocate, Shri Samir Dave for the petitioner, learned AGP Ms. Asmita Patel for the respondent No. 1 and learned Advocate, Shri N.J. Shah for the respondent No. 2. 3. Heard learned Advocate, Shri Samir Dave for the petitioner, learned AGP Ms. Asmita Patel for the respondent No. 1 and learned Advocate, Shri N.J. Shah for the respondent No. 2. 4. Learned Advocate, Shri Dave referred to the papers and the documents with the order passed earlier and also the judgment of this Court in case of Jashmina Dilip Devda v. State Appropriate Authority under PNDT Act, reported in 2014 (1) GLH 265 and submitted that it squarely applies to the facts of the present case. Learned Advocate, Shri Dave submitted that in this very matter, the Coordinate Bench (Coram : A.J. Desai, J.) by an order dated 10.04.2015, had also made observation and suspension was set aside. He, therefore, submitted that this is nothing but a harassment caused by colourable exercise of power by the respondent No. 2-Authority. 5. Learned Advocate, Shri Shah for the respondent No. 2 referred to the papers and submitted that the interim order passed by the Coordinate Bench in this matter was carried by way of Letters Patent Appeal No. 941/2015 and the Hon'ble Division Bench vide order dated 21.07.2015 quashed and set aside the order and remanded the matter back to the learned Single Judge to consider the same in accordance with law on merits. He, therefore, submitted that it is required to be considered with reference to the facts and the statutory provision of the Act. Learned Advocate, Shri Shah strenuously submitted that a dacoit was sent and irregularities were found as stated in detail and, therefore, steps have been taken by seizure and, thereafter, by suspension of the registration. He referred to the impugned order passed by the Appellate Authority to support his submission with regard to deficiency and submitted that the judgment of the Full Bench of the High Court in case of Suo Motu v. State of Gujarat, reported in 2009 (1) GLR 64 has empowered the Authority in case of such lapse and deficiency and burden is on the concerned doctor to establish that it is not merely a mistake. Learned Advocate, Shri Shah referred to the affidavit in reply and emphasized Paragraph No. 6 of the affidavit-in-reply, which reads as under:-- "6. .........................It is for the petitioner to establish the need for such notice by specifying the statutory provision. Learned Advocate, Shri Shah referred to the affidavit in reply and emphasized Paragraph No. 6 of the affidavit-in-reply, which reads as under:-- "6. .........................It is for the petitioner to establish the need for such notice by specifying the statutory provision. If it is not for the criminal complaint, then there is no need for such notice as the answering respondent has exercise the Authority conferred under Section 20(3). Contention that the deficiencies/inaccuracies are procedure lapse cannot be sustained in context of the view expressed by the full bench of the Hon'ble High Court of Gujarat. Though the petitioner has raised a contention about non-consideration of the provisions of the Rules - 12 of PNDT Rules, the same has not been detailed and hence will be taken care of as and when it is specifically detailed...................." 6. Learned Advocate, Shri Shah referred to Section 20(3 of the PNDT Act and submitted that the Statute has empowered and the powers have been exercised and, therefore, it cannot be said to be erroneous. Again he has made reference to the judgment of the Hon'ble Full Bench of the High Court in case of Suo Motu v. State of Gujarat (supra). 7. Learned Advocate, Shri Shah also referred to the Rules and submitted that there are deficiencies and lapses resulting in violation of provisions of the PNDT Act and Rules made therein and, therefore, the present petition may not be entertained. He submitted that PNDT Act has been enacted in larger public interest and, therefore, the present petition may not be entertained. 8. Learned Advocate, Shri Dave for the petitioner in rejoinder submitted that the judgment of the Hon'ble Full Bench is with regard to the criminal proceedings and no reference is made to the issue, which is involved in the present petition regarding the provision of Section 20 of the PNDT Act. He emphasized the observations made in the judgment of this Court in case of Jashmina Dilip Devda (supra) and submitted that admittedly when no notice or opportunity has been given and the order is passed in violation of Rules of Natural Justice, the impugned orders deserve to be quashed and set aside. He submitted that opportunity of hearing was requested, which was not given. He further submitted that reference is made to the order of the Hon'ble Division Bench, which has only remanded the matter back to the learned Single Judge. He submitted that opportunity of hearing was requested, which was not given. He further submitted that reference is made to the order of the Hon'ble Division Bench, which has only remanded the matter back to the learned Single Judge. He, therefore, submitted that it may be examined with reference to the statutory provision of Section 20 of the PNDT Act. 9. In view of these rival submissions, it is required to be considered whether the present petition deserves consideration. 10. The provision of the PNDT Act has been enacted with definite purpose in the public interest. However, it is required to be stated that the petitioner is a practicing doctor for many years and he has explained with regard to the deficiency particularly in complete information in the Form - F or in complete details. Assuming the fault regarding the deficiency at the face value, the moot question as to whether the exercise of power under Section 20 of the PNDT Act, is required to be considered. The provision of Section 20 of the PNDT Act provides "cancellation or suspension of registration". 11. Again Section 20(2) of the PNDT Act refers to giving reasonable opportunity of being heard to such Genetic Counselling Centre. Further the provision of Sub-section (3) of Section 20 empowers the Authority to suspend the registration of such Genetic Counselling Centre or the Laboratory without issuance of notice subject to fulfillment of the requirements as stated in this Sub-section (3) of Section 20 of the PNDT Act. The provision of Sub-section (3) of Section 20 of the PNDT Act provides and obliges the Appropriate Authority to form an opinion and record reasons in writing that it is necessary or expedient to do so in public interest to suspend such license without issuance of notice. Therefore, the exercise of power is subject to the fulfillment of the requirement casting an obligation on the Authority for the purpose of exercise of such power. Therefore, the powers have been reserved in a given circumstances but the Legislature has obliged the Authority to fulfill the necessary requirement or the criteria like recording of reasons in a public interest with the formation of opinion that in the public interest, such powers are required to be exercised without issuance of notice. Therefore, the powers have been reserved in a given circumstances but the Legislature has obliged the Authority to fulfill the necessary requirement or the criteria like recording of reasons in a public interest with the formation of opinion that in the public interest, such powers are required to be exercised without issuance of notice. Thus the provision of Section 20 is an exception carved out to the normal procedure provided under Sections 20(1) and 20(2) of the PNDT Act. In other words, the procedure under Sections 20(1) and 20(2) of the PNDT Act is required to be followed. However, the Authority is empowered by Section 20(3) of the PNDT Act to proceed without issuance of notice in a given case subject to fulfillment of the requirements. The language in which the provision has been couched, has underlying purpose to provide an opportunity for explanation in compliance with the Rules of natural justice. Same view has been expressed and taken by this Court in a judgment in case of Jashmina Dilip Devda (supra). However, learned Advocate, Shri Shah has categorically stated at the time of submission that language of Section does not provide for giving any notice which to say the least amount to arrogant and contemptuous attitude for the Advocate appearing for the Authority. In any case, it is well accepted that even if the provision of the statute or the Rules may not have expressly provided for the opportunity of hearing in compliance with the Rules of natural justice, it is required to be read into it. In other words, if the action is likely to adversely affect the right of the individual, notice is required to be given as a minimum compliance of the Rules of Natural Justice. Thus the language of the statutory provision or the Rule reflecting on the underlying purpose or the object of the Act is one thing but for the purpose of implementation when the statute itself has made the provision for fulfillment of the criteria, same cannot be overlooked. The adherence to the provision and fulfillment of the criteria provided in the statutory provision itself would take care of the compliance with the Rules of natural justice and fair play. The Legislature has provided for safeguard to balance the right of an individual and that of Authority, which would be a safeguard against any kind of abuse or arbitrary exercise of power. The Legislature has provided for safeguard to balance the right of an individual and that of Authority, which would be a safeguard against any kind of abuse or arbitrary exercise of power. Further the object of such notice is to give an opportunity to individual concerned to present his case. The Hon'ble Apex Court evolving the concept of fair play has made the observations right from the judgment in case of State of Orissa v. Binapani Dei, reported in AIR 1967 SC 1269 and also in a subsequent judgment in case of Olga Tellis v. Bombay Municipal Corporation, reported in (1985) 3 SCC 545 . It has been observed that in spite of the statutory provision about removal of unauthorised construction by the Commissioner without notice, the Court held that it was merely an enabling provision and not a command not to issue notice before demolition of structure. In other words, the discretion was required to be exercised in consonance with the principles of Natural Justice. Therefore it has been observed that the ultimate test is - test of prejudice or test of fair hearing. In the ultimate analysis, though there may not be any straight jacket formula, the Courts have time and again made observations that when the prejudice is likely to be caused, opportunity of hearing must be provided as the concept of fair play would require such opportunity. Same view has been reiterated in a subsequent judgment in case of Shrilekha Vidyarthi v. State of U.P., reported in (1984) 3 SCC 465 , wherein the observations have been made referring to the Circular that though it provided for termination, "without assigning any cause", compliance of the Rules of natural justice was required. 12. It is, therefore, well settled that the text of the Act has to be read in context. Again it is well accepted that the letter and spirit of the language has to be considered. Therefore inspite of the statutory provision in Section 20(1) providing for issuance of the notice to the Genetic Counselling Centre to show cause before proceeding to suspend or cancel the registration, Section 20(2) of the PNDT Act refers to giving reasonable opportunity of being heard. The submission are made by the conveniently emphasizing on Section 20 of the PNDT Act. This reflects about the convenient interpretation by the Authority for the purpose of exercise of such power. The submission are made by the conveniently emphasizing on Section 20 of the PNDT Act. This reflects about the convenient interpretation by the Authority for the purpose of exercise of such power. It is well accepted that the provision of the Statute or the Section has to be read as a whole. Therefore when the provision of Section 20 of the PNDT Act read as a whole, it is clear that the provision of Section 20(3) of the PNDT Act leaves by way of exception an option or discretion in a given case to the Authority to proceed without notice in a public interest. However again for that, the Authority is obliged to form an opinion with reasons recorded therein in a public interest. 13. Thus as discussed above, while keeping in mind the object and purpose of the Act or the public interest, the compliance with the provision of the PNDT Act, which itself has made the provision for the notice and the requirement of recording reasons for doing away with the notice in a given case itself be indicative of the intention of the Legislature even while making such statutory provision. Therefore on one hand, when the provision has been made to curb the evil, on the other hand, the right of a person like the petition under Article 19(1)(g) read with 21 of the Constitution of India are also required to be balanced. The person, who is said to have committed breach of the statutory provision or the Rules would be deprived of his source of livelihood and at the same time, may affect his reputation and, therefore, minimum compliance with the Rules of Natural Justice cannot be overlooked as sought to be canvassed. It may not be out of place to mention that in a given case, where the statute or the Rules itself provides for assumption against the person, still the requirement with the Rules of Natural Justice is not overlooked. Therefore, the submissions made by learned Advocate, Shri Shah without reference to whole scheme of Section 20 of the PNDT Act are devoid of merits. 14. As could be seen from the impugned orders, the requirement of the provision of the PNDT Act have not been fulfilled. Therefore, the present petition deserves to be allowed. 15. In the circumstances, the present petition stands allowed in terms of Para Nos. 15[B]. 14. As could be seen from the impugned orders, the requirement of the provision of the PNDT Act have not been fulfilled. Therefore, the present petition deserves to be allowed. 15. In the circumstances, the present petition stands allowed in terms of Para Nos. 15[B]. The impugned orders passed by the respondent No. 2 - Appropriate Authority dated 10.10.2013 and 03.12.2013 at Annexure-C collectively and the order passed by the Appellate Authority in Appeal No. 3/2004 dated 02.06.2014 are hereby quashed and set aside. Rule is made absolute. 16. However a copy of this order may be forwarded to learned Advocate General for information and suitable measures for future.