High Court rejects bail in foeticide case


High Court rejects bail in foeticide case

Judgement-   I) Pandurang Jagannath Patil vs state of Maharashtra ordjud

2) Sanjay Balkrishna Shinde vs state of Maharasthra- Sanjay Balkrishna Shinde vs state of maharashtra

The Bombay high court has recently rejected the bail application of a man who was arrested for working as an agent between a doctor and a family to facilitate a sex determination test and later illegal operation of the daughter-in-law at their residence, resulting in her death.

According to the prosecution’s case, Ramchandra Patil, father of deceased Rupali, had filed a complaint with the Shahuwadi police station that her husband and in-laws had illegally determined the sex of the foetus and then terminated the pregnancy of his daughter at their residence. The operation went wrong and his daughter died.

According to the complainant, Rupali was married to Hemant Patil in March 2011 and she was blessed with a baby girl in 2012. Thereafter, in July 2014 Rupali visited her maternal house and informed her parents that she was four months pregnant and her in-laws, who were annoyed with the birth of girl earlier, had forced her to undergo a sex determination test, which confirmed she was again carrying a female foetus.

On July 30 at about 9 pm, Rupali’s father received a phone call from one Maruti Patil who informed him that his daughter had been taken to Saraswati Apple Hospital for treatment in Kolhapur and had not survived.

Later, Mr Patil came to know that Rupali’s husband and in-laws had taken the services of a doctor to terminate her pregnancy at their residence and due to the failure of the operation, she had died and so he filed a police complaint.

The police then arrested the suspects, including doctors and Pandurang Patil for acting as an agent between the doctor and family to carry out the illegal termination of pregnancy. His lawyer argued before the court that his client was innocent and was falsely implicated in the case.

However, Justice Sadhna S. Jadhav accepted public prosecutor Veera Shinde’s arguments that the witness does not have enmity with applicant so there was no reason to falsely implicate him and, as per a call data record, there was exchange of calls between him and a family member that showed his involvement.

The judge, while rejecting the bail plea, observed that the crime was heinous and in the present-day scenario where the courts and Medical Council of India are seriously looking into the ratio of females against males, the defence of the applicant that he was an agriculturist and not aware of the law could not be accepted.

The court said, “This amounts to killing a female foetus as if to say that being a female, she has been denied the right to come into this world.”.

PRIYAKANT MOHANLAL KAPADIA vs STATE OF GUJARAT  &  1


R/CR.MA/10039/2014 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 10039 of 2014 ============================================= PRIYAKANT MOHANLAL KAPADIA….Applicant(s) Versus STATE OF GUJARAT  &  1….Respondent(s) ============================================= Appearance: MR SAMIR J DAVE, ADVOCATE for the Applicant(s) No. 1 MR NIKHILESH J SHAH, ADVOCATE for the Respondent(s) No. 2 MS JIRGA JHAVERI, APP for the Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 23/03/2015 ORAL ORDER [1] The applicant who is Doctor by profession has filed present application under section 482 of the Code of Criminal Procedure (“the Code”   for   short)   seeking   to   quash   the   complaint   at   Annexure   A registered as Criminal Case No.1423 of 2013 on 15.10.2013 for the offence under sections 4(3), 29 of the Pre­Conception and Pre­Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (“the Act” for short) and Rules 9(1), 9(4), 9(6), 9(8), 10(1A) and 13 of the the Pre­Conception and Pre­Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (“the Rules” for short). [2] The gist of allegations as stated in the complaint reads as under :­ “During   the   search   and   seizure   procedure   on   studying   the records   searched   and   produced   by   Dr.   Kapadia,   following contraventions were observed :­ Page 1 of 16 R/CR.MA/10039/2014 ORDER 1. A register with name and age of the pregnant women and men subjected to the Sonography, with spouse name, address etc. is not maintained at clinic since last  2 years (Rule 9(1) is contravened) 2. Deficiencies in Record keeping : On examination of 68 form “F” of time period from 3/11/2012 to 26/09/2013 were found filled up incompletely.   Complete   record   of   last   2   years   was   not   produced (Section 4(3) and 29 is contravened) In these total 68 form “F” the deficiencies were encircled were given serial no.1 to 68 and were seized on 5/10/2013 in presence of the   witnesses   as   the   proof   of   the   contravention   of   the   Act.   The deficiencies and inaccuracies in form F is shown below :­ i. In Sr.No. 3,4,8,9,11,12,14,16,17,23,37,50 and 62 of Form “F”, point no.4 “Number of children with sex of each child” was not filled up by Dr. Kapadia. ii. In Sr.No.4,12,17,19,21,23,26,27,28,36 and 50 of Form “F”, point no.6 “Full address with Tel. No. if any” was not filled up by Dr. Kapadia while Tel.No. Was not shown in Sr. No.1,2,3,5 to 11, 13 to 16, 18,20,22,24, 25, 29 to 35, 37 to 49, 51,52, 53, 55, 59, 60, 63, 66, 67 and 68 of Form F. iii. Particulars in all seized 68 forms point no.7 “Referred by (full name and address of Doctor (s) / Genetic Counseling Center”) were not shown by Dr. Kapadia. While in point no.8 “Last menstrual period / weeks of pregnancy” was not filled up in Sr. No.41 of Form F. iv. In Sr. No. 35, 38, 43 to 48 “Indication for pre­natal diagnosis” is not filled up. Page 2 of 16 R/CR.MA/10039/2014 ORDER v. Particulars in all seized 68 forms point no. 14 “Result of ….” were not filled up by Dr. Kapadia. vi. In Sr. No.1 to 41 of Form F, point no.15 “Date(s) on which procedures carried out” is not filled up. vii. Particulars in all seized 68 forms, points nos.17, 18 and 19 were not filled up by Dr. Kapadia. viii. In   Sr.No.9,   21,   36   and   41   of   Form   F   in   “Declaration   of pregnant women” part of the form “F” signature of pregnant woman was not obtained by Dr. Kapadia and “Declaration of Doctor / person conducting ultrasonography / image scanning” part of Form “F” was not signed by Dr. Kapadia. ix. Form “F” of Sr. No.45 to 46 and 47 to 48 were found both original and carbon copies during the visit on 5/10/2013 and there are reasons to believe that it was not sent with a view to conceal   the   information   from   the   appropriate   authority showing bad intention of not submitting form F (Rule 9(8) is contravened). Sixty eight (68) such forms were seized as evidence of the offence marking the relevant parts of the form “F” with a circle and putting sign of the witnesses and DAA with the date. These totally 68 forms “F” given serial no.1 to 68 were seized on 05/10/2013 in presence of the witnesses, as the proof   of the contraventions of the Act.  Thus section 4(3), 29 and the Rules 9(1), 9(4), 9(6), 9(8) are contravened. 3. Registered   Sonography   machine   at   the   time   of   clinic registration   LOGIQ   BOOK   was   not   found   during   the   visit   on 5/10/2013. As per Doctor’s statement if was not as Buy back scheme Page 3 of 16 R/CR.MA/10039/2014 ORDER to the GE Company in September 2011 without any intimation to the DAA and new ultrasonography machine LOGIQ – C5, Sr. No. 199687 WX5   of   GE­   Medi   Systems   was   installed   at   the   clinic   on   dated 12/09/2011.   That   is   also   not   informed   to   the   DAA   (Rule   13 contravened) 4. On date 13/09/2013, a decoy pregnant lade was sent at Dr. Kapadia’s hospital for sonography purpose.   Sonography was done and complete file with sonography report, prescription and image print of sonography done by Dr. Kapadia was given to the decoy, but her form “F” was not filled up under the provisions of the PC and PNDT Act.  The decoy has given written statement to DAA to cooperate be be a decoy for exposing the offenders of the PC and PNDT Act. After undergoing the sonography, the decoy gave a written statement to DAA that before, during and after the sonography on 13/09/203, neither any form was filled up nor her signature was obtained by at the clinic of Dr. Kapadia. This was confirmed by studying the form “F” for September 2013 submitted by Dr. Kapadia where in the form “F” of the decoy was not sent to the office of Appropriate Authority, Ahmedabad. The statements of the decoy were shown to and read by the witnesses during the procedure on 05/10/2013. This shows that sonography of the decoy was done, form “F” was not filled up and was not sent to DAA (Rule 9(4) and 9(8) contravened). 5. As per the directions of the Hon’ble Gujarat High Court’s oral judgment dated 26/02/2010 in SCA No. 11531/2006, Dr. Kapadia has not started online reporting in spite of repeated instructions and also notice issued on dated 26/09/2013 and hence failed to obey the order of Hon’ble Gujarat High Court (Annexure). Page 4 of 16 R/CR.MA/10039/2014 ORDER The deficiencies and inaccuracies in record keeping as evident from the facts mentioned above is the breach of provisions of the Act. The decision for sealing of the USG machine of the clinic was taken to obtain further evidence of the offence. Hence, ultrasound machine Make – GE Medi System Model – Logiq C5 Sr.No.199687 WX 5 of the accused was sealed in presence of the witnesses and placed at the place, at the premises of the clinic of the accused as per written request of Dr. Kapadia, after written assurance by Dr. Kapadia to safeguard the machine and the seal applied to it. A “panchnama” was done to document the transparency of the procedure, a list of the documents seized was prepared and both were signed by the witnesses and DAA handed over to Dr. Kapadia under acknowledgment.” [3] Learned advocate Mr. Dave for the applicant has urged that on two grounds the complaint filed before the lower Court is required to be quashed (1) search and seizure made at the clinic of the applicant was not with two independent witnesses but they were from the very District   Panchayat   where   complainant   is   serving   as   District   Health Officer and functioning as  appropriate authority under the Act and (2) that prior to lodging the complaint no notice as contemplated under section 20(1) of the Act was issued to the applicant and therefore, the complaint itself is not maintainable. [4] Learned advocate Mr. Shah and Ms. Jhaveri for respondents submitted   that   the   contents   of   the   complaint   do   make   out   offences Page 5 of 16 R/CR.MA/10039/2014 ORDER alleged   against   the   applicant.   Mr.   Shah   submitted   that   whether witnesses who accompanied the complainant at the time of search and seizure were independent or not, is a matter of appreciation of evidence before the Court below.  Mr. Shah submitted that the provisions of the Act clearly authorize the appropriate authority to make search of the place where breach of the Act is stated to have taken place and as stated in the complaint, search and seizure was carried out with the witnesses and as per provisions of section 30(2) of the Act, provisions of the Code of Criminal Procedure relating to search and seizure are to apply as far as possible and therefore, complaint at this stage cannot be quashed on the ground that the search was not made with the help of independent witnesses.     Mr.   Shah   submitted   that   so   far   as   service   of   notice   as provided under section 20(1) of the Act is concerned, same is for the purpose of taking civil action and not for initiating any criminal action for breach of provisions of the Act and the Rules. [5] Having heard learned advocates for the parties, the Court finds from  the  contents of  the  FIR  that  several breaches punishable under the Act are alleged against the applicant.   [6] The Act is to provide for the prohibition of sex selection before or after conception  and for regulation  of pre­natal diagnostic techniques   for   the   purposes   of   detecting   genetic   abnormalities   or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex lined disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. [7] To   achieve   the   object   and   purpose   of   the   Act,   various provisions are made in the Act which read as under :­ Page 6 of 16 R/CR.MA/10039/2014 ORDER Section 4 Regulation of pre­natal diagnostic techniques. On and from the commencement of this Act,­­  (1) no place including a registered Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for   conducting   pre­natal   diagnostic   techniques   except   for   the   purposes specified in clause (2) and after satisfying any of the conditions specified in clause (3); (2) no pre­natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely:­­  (i) chromosomal abnormalities;  (ii) genetic metabolic diseases;  (iii) haemoglobinopathies;  (iv) sex­linked genetic diseases;  (v) congenital anomalies;  (vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board;  (3) no pre­natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied that any of the following conditions are fulfilled, namely:­­  (i) age of the pregnant woman is above thirty­five years;   (ii) the pregnant woman has undergone of two or more spontaneous abortions or foetal loss;  (iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;  (iv) the pregnant woman has a family history of mental retardation or physical deformities such as spasticity or any other genetic disease;  (v) any other condition as may be specified by the Central Supervisory Board;  Provided that the person conducting ultrasonography on a pregnant Page 7 of 16 R/CR.MA/10039/2014 ORDER women   shall   keep   complete   record   thereof   in   the   clinic   in   such manner, as may be prescribed and any deficiency or inaccuracy found therein shall amount to contravention of the provisions of section 5 or section 6 unless contrary is proved by the person conducting such utrasonography;  (4) no person including a relative or the husband of the pregnant woman shall seek or encourage the conduct of any pre­natal diagnostic techniques on her except for the purpose specified in clause (2).  (5). no person inducing a relative or husband of a woman shall seek or encourage the conduct of any sex selection technique on her or him or both.  Section   5.  Written   consent   of   pregnant   woman   and   prohibition   of communicating the sex of foetus.  (1) No person referred to in clause (2) of section 3 shall conduct the prenatal diagnostic procedures unless­­ (a) he has explained all known side and after effects of such procedures to the pregnant woman concerned;  (b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and  (c) a copy of her written consent obtained under clause (b) is given to the pregnant woman.  (2)   No   person   including   the   person   conducting   pre­natal   diagnostic procedures shall communicate to the pregnant woman concerned or her relatives the sex of the foetus by words, signs or in any other manner. Section 22 : ­ Prohibition of advertisement relating to pre – conception and pre­natal determination of sex and punishment for contravention.  (1) No   person,   organisation,   Genetic   Counselling   Centre,   Genetic Laboratory or Genetic Clinic, including Clinic, Laboratory or Centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall Page 8 of 16 R/CR.MA/10039/2014 ORDER issue, publish, distribute, communicate or cause to be issued, published, distributed   or   communicated   any   advertisement   in   any   form,   including internet, regarding facilities of pre­natal determination of sex available at such Centre, Laboratory, Clinic or any other place. (2) No person or organisation including Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish,  distribute, communicate or cause to be issued, published, distributed or communicated regarding prenatal   determination   of   pre   conception   selection   of   sex   by   any   means whatsoever, scientific or otherwise.  (3) Any person who contravenes the provisions of sub­section (1) or subsection (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees.  Section 24  :­  Presumption in the case of conduct of pre­natal diagnostic techniques. Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), the court shall presume unless the contrary is proved that the pregnant woman was compelled by her husband or the relative, as the case may be,  to undergo pre­natal diagnotic technique for the purposes other than those specified in sub­section (2) of section 4 and such person shall be liable for abetment of offence under sub­section (3) of section 23 and shall be punishable for the offence specified under that section. [8] Sub­section (1) of Section 20 provides for issuance of show cause notice before taking any action for  cancellation or registration of Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic. Sub – section (2) of Section 20 provides for taking of action after giving reasonable opportunity of being heard. But such action as stated in subsection (2) is without prejudice to any criminal action that the authority may take against the Center or Laboratory or Clinic. Page 9 of 16 R/CR.MA/10039/2014 ORDER Sub­section (3) of Section 20 starts with non obstance clause and in consonance with  the  object of the Act, it is provided  that  in public interest the authority may even take action for suspending registration of the clinic or laboratory by recording reasons even without issuing notice under sub­section (1). [9] From   section   20   of   the   Act,   it   clearly   appears   that   two actions are independent to each other. One is civil action of cancellation of registration and / or suspending registration and another is of taking criminal action. If sub section (2) of section 20 provides for taking of action of cancellation of registration without prejudice to any criminal action, service of notice before taking criminal action, as submitted by Mr.Dave   is   not   required.   However,   Mr.   Dave   relied   on   Full   Bench decision of this Court in the case of  Suo Motu v/s. State of Gujarat reported in 2009 Cri.L.J. 721  and submitted that the Full Bench has ruled that even for taking criminal action  for breach of violation  of sections 5 and 6 of the Act, prior notice is must and if there is no notice, then prosecution cannot be said to be validly instituted.  [10] Before the Full Bench, following questions were referred by the learned Single Judge :­ “(i) Whether under the provisions of section 28 of the Preconception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, a Court can take cognizance of an offence under the Act on a complaint made by any officer authorised in this behalf by the Appropriate Authority? (ii) Whether the provisions of the proviso to sub­section (3) of section 4 of the PNDT Act require that the complaint should contain specific allegations regarding the contravention of the provisions of sections 5 Page 10 of 16 R/CR.MA/10039/2014 ORDER and 6 of the Act? (iii) Whether the burden lies on the authority to prove that there was contravention of the provisions of section 5 or 6 of the PNDT Act? (iv) Whether any deficiency of inaccuracy in filing Form­F as required under the statutory provisions is merely a procedural lapse?” [11] In the context of above said questions referred, the Full Bench has held and observed in paragraph nos.8 and 9 as under :­ “8. It needs to be noted that improper maintenance of the record has also   consequences   other   than  prosecution   for   deemed   violation   of section 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 section 6 against the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and expose such clinic to proceedings under   section   20   of   the   Act.   Where,   by   virtue   of   the  deeming provisions of the proviso to sub­section (3) of section 4, contravention of the provisions of section 5 or 6 is legally presumed and actions are proposed   to   be   taken   under   section   20,   the   person   conducting ultrasonography on a pregnant woman shall also have to be given an opportunity to prove that the provisions of section 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 sections 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 Page 11 of 16 R/CR.MA/10039/2014 ORDER failure of the Act and its purpose if procedural requirements were flouted. The proviso to sub­section (3) of section 4 is crystal clear about the maintenance of the record in prescribed manner being an independent offence amounting to violation of section 5 or 6 and, therefore, the complaint need not necessarily also allege violation of the provisions of section 5 or 6 of the Act. A rebuttable presumption of violation of the provisions of section 5 or 6 will arise on proof of deficiency or inaccuracy in maintaining the record in the prescribed manner   and   equivalence   with   those   provisions   would   arise   for punishment as well as for disproving their violation by the accused person. That being the scheme of these provisions, it would be wholly inappropriate to quash the complaint alleging inaccuracy or deficiency in maintenance of the prescribed record only on the ground that violation of section 5 or 6 of the Act was not alleged or made out in the complaint. It would also be improper and premature to expect or allow the person accused of inaccuracy or deficiency in maintenance of the relevant record to show or prove that provisions of section 5 or 6 were not violated by him, before the deficiency or inaccuracy were established in court by the prosecuting agency or before the authority concerned in other proceedings.  9. Upon above analysis and appreciation of the scheme and provisions of the Act and Rules made thereunder, opinion on issues referred to the larger bench is as under: (i) Under the provisions of section 28 of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (“the PNDT Act”), a Court can take cognizance of an offence under the Act on a complaint made by any officer authorised in that behalf by the Appropriate Authority. (ii) The proviso to sub­section (3) of section 4 of the PNDT Act does Page 12 of 16 R/CR.MA/10039/2014 ORDER not require that the complaint alleging inaccuracy or deficiency in maintaining record  in the prescribed manner  should  also contain allegation of contravention of the provisions of section 5 or 6 of the PNDT Act. (iii) In a case based upon allegation of deficiency or inaccuracy in maintenance of record in the prescribed manner as required under sub­section (3) of section 4 of the PNDT Act, the burden to prove that there was contravention of the provisions of section 5 or 6 does not lie upon the prosecution. (iv) Deficiency or inaccuracy in filling Form F prescribed under Rule 9 of   the   Rules   made   under   the   PNDT   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 section 5 or 6 of the PNDT 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 section 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 ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 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. (v) The   judgment   in  Dr.Manish   C.   Dave   v.   State   of   Gujarat reported in 2008 (1) GLH 475  stands overruled to the extent it is inconsistent with the above opinion. The references  stand disposed Page 13 of 16 R/CR.MA/10039/2014 ORDER accordingly.” [12] As rightly submitted by Mr. Shah that the Full Bench has nowhere laid down that absence of show cause notice under section 20(1) would in any way render prosecution invalid. [13] It is pertinent to note that as per proviso to sub­section (3) of section 4 of the Act, any deficiency or inaccuracy in keeping complete record by the person conducting ultrasonography on female amounts to contravention of section 5 and 6 of the Act, unless contrary is proved by the person conducting such ultrasonography.  As held by the Full Bench deficiency or inaccuracy in filling Form F prescribed under Rule 9 of the Rules made under the 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 section 5 or 6 of the Act and has to be treated and tried accordingly. Section 23 of the Act makes contravention of any provisions of the Act and Rules including section 5 and 6 of the Act and Rule 9 of the Rules punishable. [14] As stated above, sub­section (2) of section 20 is for taking independent action of cancellation of registration without prejudice to any criminal action.   It would be profitable to reproduce observations made by the Full Bench in Paragraph no.7 which reads 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   loop­holes   in   strict   and   full compliance   are   sought   to   be   plugged   by   detailed   provisions   for maintenance   and   preservation   of   records.   In   order   to   fully Page 14 of 16 R/CR.MA/10039/2014 ORDER operationalise the restrictions and injunctions contained in the Act in general and in sections 4, 5 and 6 in particular, to regulate the use of prenatal diagnostic technique, to make the pregnant woman and the person conducting the pre­natal 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 sections 5 and 6, by virtue of the proviso to subsection (3) of section 4 of the Act. It must, however, be noted that the proviso would apply only in cases of ultrasonography conducted on a pregnant woman. And   any   deficiency   or   inaccuracy   in   the   prescribed   record   would amount to contravention of the provisions of sections 5 and 6 unless and   until   contrary   is   proved   by   the   person   conducting   such ultrasonography. The deeming provision is restricted to the cases of ultrasonography   on   pregnant   women   and   the   person   conducting ultrasonography is, during the course of trial  or other proceeding, entitled to prove that the provisions of sections 5 and 6 were, in fact, not violated.” [15] Therefore,   for   contravention   of   Act   or   Rules,  a   separate criminal action can be taken under section 23 of the Act, for which no show cause notice before taking such criminal action is required to be issued under sub­section (1) of section 20 of the Act. [16] Considering the allegations made in the FIR, the Court finds that serious allegations as regards breach of provisions of the Act and Page 15 of 16 R/CR.MA/10039/2014 ORDER Rules are made. In such view of the matter, it is not the case where inherent powers under section 482 of the Code can be exercised in favour of the applicant. [17] As   stated   above,   the   question   whether   witnesses   who accompanied competent authority – complainant at the time of search and seizure were independent or not, is a matter of appreciation during trial and such ground is not available to the applicant to invoke powers under section 482 of the Code. [18] For the reasons stated above, the application is rejected. Notice is discharged.  Interim relief stands vacated.

R_CR.MA_10039_2014_o_5

(C.L.SONI, J.)  satish Page 16 of 16

THE STATE ORGANIZATION OF OBSTETRICS & GYNECOLOGICAL SOC….Applicant(s) Versus STATE OF GUJARAT THROUGH THE SECERATARY & 6….Respondent(s)


C/CA/556/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 556 of 2013 In LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1547 of 2012 In SPECIAL CIVIL APPLICATION NO. 11531 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE S.G.SHAH =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ THE STATE ORGANIZATION OF OBSTETRICS & GYNECOLOGICAL SOC….Applicant(s) Versus STATE OF GUJARAT THROUGH THE SECERATARY & 6….Respondent(s) ================================================================ Appearance: MR HEMANG M SHAH, ADVOCATE for the Applicant(s) No. 1 Page 1 of 15 C/CA/556/2013 JUDGMENT MS RV ACHARYA, ADVOCATE for the Respondent(s) No. 2 – 3 , 5 – 6 MR NJ SHAH, AGP for the Respondent(s) No. 1 & 4. ================================================================ CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE S.G.SHAH Date : 04/03/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE S.G.SHAH) The applicant is an organization of Obstetrics & Gynecological Society of Gujarat, which has preferred Letters Patent Appeal against the judgment and order dated 26/2/2010 passed by the Ld. Single Judge in group of Special Civil Applications having the leading Number of Special Civil Application No. 11531/2006. 2 It is clear that the present applicant was not a party in such impugned order dated 26/2/2010 and, therefore, they have preferred Civil Application No. 13703/2012 for leave to appeal on 29/11/2012. By an order dated 8/1/2013, leave to appeal was allowed. 3 Heard Ld. Sr. Counsel Mr. Shalin Mehta with Mr. Niranjan M Shah for the applicant and Ms. R V Acharya, Ld. Advocate for the respondent nos. 2 and 3, whereas Ld. AGP Mr. N J Shah for respondent nos. 1 and 4. Rest of the respondents are though served, they have chosen to remain away from such litigation. However, it cannot be Page 2 of 15 C/CA/556/2013 JUDGMENT ignored that one of them being respondent no. 7 is original petitioner in Special Civil Application No. 11531/2006, order of which is challenged in the Letters Patent Appeal [Stamp] No. 1547/2012. 4 Ld. Counsel for the applicant has submitted that sum and substance to justify the delay is narrated in para. 9 of the application. On perusal of record, it transpires that till paras. 8 of the application, history of the litigation is narrated with reproduction of the operative part of the impugned order and cause and justification for delay, as confirmed by the Ld. Counsel for the applicant, is only in para. 9. On careful reading of such reasons, for condonation of delay of 978 days caused in filing Letters Patent Appeal, are to the effect that – ….. Communications from the Government and Appropriate Authority were received only on 22/5/2012, 30/5/2012 and 7/7/2012 – Consultation was taken place between Doctors at local level i.e. local association. Discussion was initiated with State Level Functionaries. Communications were carried out on phone Some time was taken in receiving the response from local association Page 3 of 15 C/CA/556/2013 JUDGMENT Meetings were held to discuss and decide the future course of action Doctors began the task of raising funds for litigation At the end due to Diwali vacation, there was some delay. 5 However, this Court does not find any of the above grounds as sufficient and reasonable cause for not filing the appeal in time by the association of Doctors in the proceedings which were initiated for breach of the provisions of The Pre-Natal Diagnostic Techniques [Regulation and Prevention of Misuse] Act, 1994 [for short ‘PNDT Act’]. 6 Though in general, merits of the matter may not be looked into while considering the contention of delay, when Ld. Counsel for the applicant has referred the issue arguing that it affects the entire society and more particularly all the associations, then it becomes the public interest litigation. Even in the application itself, the applicant has contended that during the course of discussion it was found that other Doctors associated with other associations were also affected by such communication i.e. impugned order and hence present applicant thought it fit to initiate discussion with different functionaries. In view of such fact, if Page 4 of 15 C/CA/556/2013 JUDGMENT there is a public interest, then also the present applicant alone has no reason to file such Letters Patent Appeal, more particularly when such association was not party in Special Civil Application i.e before the Ld. Single Judge where impugned order was passed. 7 As stated earlier, though impugned order is not to be looked into for consideration of cause of delay, when the applicant itself has referred such order, we have no option but to record that by passing such order, the Ld. Single Judge has practically quashed and set aside the order impugned before it by the concerned authorities and thereby such authorities, which are also respondents in the present appeal, were directed to remove the seals applied in the examination rooms of the respective nursing homes/ clinics, where sonography machines were kept for the same, were not removed so far. The only grievance of the present appellant/applicant is with regard to directions issued by the Ld. Single Judge in para. 11 of the impugned judgment. Though all such directions are not relevant for consideration of an application for condonation of delay, it is sufficient to record that for passing such direction, the Ld. Single Judge has practically relied upon the consensus and suggestions made by the respective parties Page 5 of 15 C/CA/556/2013 JUDGMENT because it is categorically stated in para. 11 that “After hearing both the sides and after having gone through the suggestions made by the respective parties, the following directions are issued so as to see that the purpose and object for which the PNDT Act was enacted is not frustrated. ..” 8 It is, therefore, clear that by the impugned order, practically the directions were issued because of admission and consensus between the parties though some of the respondents have without admitting the fact, tried to support the application for condonation of delay on the ground that directions in the impugned order are not practical and cannot be fully acted upon or implemented. However, on such ground, delay cannot be condoned since condonation of delay is subject to legal limitation regarding sufficient cause which can be considered for condoning such delay and looking to the reasons for delay as explained by the applicant in para. 9 of the application and listed herein, it cannot be said that any of the grounds is sufficient for condoning long delay of 978 days in challenging such order. On the contrary, respondent no. 5 has filed an affidavit-in-reply, categorically opposing the condonation of delay, submitting that present application does not contain any Page 6 of 15 C/CA/556/2013 JUDGMENT justification much-less any sufficient cause for condoning inordinate delay in filing Letters Patent Appeal, since date of receipt of judgment by the applicant is not disclosed and there is no explanation for delay of 978 days. The respondent is relying upon the decision of the Hon’ble Apex Court in the case of Lanka Venkateswarlu v. State of Andhra Pradesh reported in 2011 [4] S.C.C. 363. 9 In following judgments also Hon’ble the Apex Court has held and confirmed that delay cannot be condoned mechanically and if there is no sufficient cause and explanation for condonation of delay, the same can be refused. 9.1 (2012)8 SCC 524 – Cicily Kallarackal Vs. Vehicle Factory – wherein the Apex Court has held that if there is no sufficient cause, inordinate delay would amount to substituting the period of limitation prescribed by statute. Therefore, outcome of such judgment is simple that for condonation of delay there must be sufficient cause, thus it cannot be said that delay cannot be condoned even if there is sufficient cause. 9.2 ( 2012)5 SCC 157 – Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai – wherien the Apex Court has dealt with Section 5 of the Limitation Act and more particularly Page 7 of 15 C/CA/556/2013 JUDGMENT expression ‘sufficient cause’. It is clarified and discussed with reference to object of Limitation Act and extent of leniency to be shown in public interest in condonation of delay by State machinery. Though High Court’s order to condone the delay was set-aside by the Apex Court, it was held that expression ‘sufficient cause’ should be construed liberally on facts without any hard and fast rules. It is further stated that substantive right of parties should not be ignored because of delay, but a distinction must be made between the delay of few days and inordinate delay causing prejudice to the other side and that no premium can be given to total lethargy or utter negligence. It is further stated that condonation of delay cannot be held as a matter of course by accepting the plea that dismissal of the matter on the ground of limitation will cause injury to public interest. In this reported case, there was delay of seven years and, therefore, the Apex Court has observed as such and refused to condone the delay, more particularly when explanation for such delay was prima-facie found as concocted and causing prejudice to private appellant when the issue was pertaining to demolition. It is further observed that explanation regarding advocate’s transfer has no bearing on the issue and that explanation offered was silent about the Page 20 Page 8 of 15 C/CA/556/2013 JUDGMENT of events and persons involved and credible causes for such delay. Therefore also, though in this reported judgment, delay has not been condoned, it cannot be the rule of law that delay cannot be condoned even if sufficient cause is shown, because in the present case, condonation of delay was practically refused because of the particular facts on record – delay of seven years with absence of proper explanation and concocted explanation for condonation of delay. Therefore, unless there is such reason in the case on hand, such decision cannot be applied to every cases blindly without verifying that whether cause for delay is sufficient or not. 9.3 (2012)3 SCC 563 – Post Master General & Ors. Vs. Living Media India Ltd. & Ors. – wherein also the Apex Court has dealt with ‘sufficient cause’ with reference to Section 5 of the Limitation Act, 1963. The Apex Court has held that if there is non-explanation of sufficient cause, and if there is absence of diligence by Department in prosecuting matter, inspite of another opportunity of filing ‘better affidavit’ being granted, it was held that condonation of delay is exception and should not be used as an anticipated benefit for government departments. Therefore, again this decision is based upon the particular facts and circumstances on record Page 9 of 15 C/CA/556/2013 JUDGMENT before the Apex Court wherein the Apex Court has found that there is negligence on the part of the Government and there is non-explanation of sufficient cause. Therefore, only because of such judgment, it cannot be said that delay cannot be condoned in all cases even if sufficient cause is proved. 9.4 ( 2010)8 SCC 685 – Balwant Singh (Dead) Vs. Jagdish Singh and Others – wherein the Apex Court has again dealt with express ‘sufficient cause’. But, it is categorically stated that ‘sufficient cause’ implies presence of legal and adequate reasons and there cannot be straitjacket formula uniformly applicable to all cases without reference to the particular facts and circumstances of a given case. Therefore, it is to be decided by the Court whether or not a cause is sufficient and whether it could have been avoided by the party by exercise of due care and attention. Therefore, only because of denial of condonation of delay in few cases would not amount to a straitjacket principle of law that delay cannot be condoned irrespective of sufficient case shown. 9.5 (2010)5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation & Anr. – wherein though Page 10 of 15 C/CA/556/2013 JUDGMENT the Supreme Court has directed probe to be conducted against defaulting officials of respondent Corporation for fixing accountability while denying to condone the delay, the fact remains that in the given case before the Apex Court, there was false statement made to explain the delay and when litigant did not approached the Court with clean hands, the Apex Court had no option, but to take serious view of the matter. However, while defining the term ‘sufficient cause’, the Apex Court has categorically observed and held that Courts bestowed with power to condone delay, if sufficient cause is shown and that term ‘sufficient cause’ elastic enough to enable the Courts to apply the law in a manner which subserves ends of justice and that there cannot be hard and fast rule laid down for condonation of delay and that liberal approach in condoning the delay of short duration with stricter approach in case of inordinate delay is required. It is further stated that certain amount of latitude not impermissible with regard to the State because State represents collective cause of the community and decisions are taken by the Officers/agencies i.e. more than one person. Therefore, even in the case cited by the opponent, the Apex Court has categorically stated in paragraph 15 that no hard and fast rule can be laid down in dealing with the application for Page 11 of 15 C/CA/556/2013 JUDGMENT condonation of delay. 9.6 (2008)17 SCC 448 – Pundlik Jalam Patil (Dead) Vs.Executive Engineer, Jalgaon Medium Project & Anr. – the Apex Court has refused to condone the delay mainly because of the reason that the Court was of the opinion that there was fraud on Court by public authority when false plea was taken with incorrect statement made in application seeking condonation of delay itself and, therefore, it was held that it is sufficient to reject such application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay or not. Therefore, unless there is a proof or pleading regarding fraud committed with the Court proceeding only because of such judgment, it cannot be held that delay cannot be condoned in any case. 9.7 (1997)7 SCC 556 – P.K. Ramachandran Vs.State of Kerala & Anr. – wherein the Apex Court has refused to condone the delay because there was no explanation much less reasonable or satisfactory explanation offered by the State for condonation of delay in application for the purpose. Though it was seriously opposed, the same was allowed by the High Court without taking into consideration of all the aspects touching to Page 12 of 15 C/CA/556/2013 JUDGMENT such subject. However, only for such citation, it cannot be held that delay cannot be condoned even if there is sufficient cause. 9.8 2012(7) SCALE 230 – B.Madhuri Goud Vs. B. Damodar Reddy – the Apex Court has refused to condone the delay of almost four years to setaside the ex-parte decree since the ground pleaded for condoning delay was that the documents were misplaced by the office of the advocate and inadvertently tagged with the record of another appeal, but the affidavit of concerned advocate was not filed on record. Therefore, in such case, when cause was not supported by affidavit, Apex Court has decided not to condone the delay. Hence, in absence of such proof, it cannot be said that delay cannot be condoned even if sufficient cause is pleaded and proved on record. 9.10 The sum and substance of all above decisions makes it clear that there cannot be a straitjacket formula or rule either for condonation of delay or to reject the condonation of delay and that every case is to be decided considering the facts and circumstances of that case only. The only requirement for condonation of delay is that whether there is ‘sufficient cause’ for the litigant not to initiate the Page 13 of 15 C/CA/556/2013 JUDGMENT litigation in prescribed time of limitation. In all the cases cited above, there is either inordinate delay, which was never explained or there was misrepresentation or fraud and, therefore, the Apex Court has held that in such cases, delay cannot be condoned. However, it cannot be ignored that in almost all such judgments, the Apex Court has categorically observed and held that if sufficient cause is shown, delay can be condoned and that term ‘sufficient cause’ elastic enough to enable the Courts to apply the law in a manner which subserves ends of justice and that there cannot be hard and fast rule laid down for condonation of delay. 10 It is also to be noted that in fact, the impugned order dated 26/2/2010 was assailed in Letters Patent Appeal Nos. 320/2011 to 324/2011, which were dismissed by an order dated 20/6/2011. Thus, once regular Letters Patent Appeals against the impugned order have been dismissed by this Court, there is no reason to entertain second Letters Patent Appeal against the same impugned order, which is filed by the Association. Probably original petitioner in the impugned order may be one of the members of the Associations, which are referred by the petitioner in para. 9. Therefore, practically, Page 14 of 15 C/CA/556/2013 JUDGMENT original petitioner, who was unsuccessful in assailing the impugned order, had probably taken shelter of different Associations to challenge the same order, which is otherwise final by above referred order dated 20/6/2011 passed in Letters Patent Appeal Nos. 320/2011 to 324/2011. 11 In view of the above facts and circumstances, there is no sufficient cause and justification shown by the applicant which can be considered as a sufficient cause and legal and proper justification so as to exercise the discretion of condonation of delay by this Court. Therefore, the application deserves to be dismissed and it is accordingly dismissed. Rule is discharged. (V.M.SAHAI, J.) (S.G.SHAH, J.) * Pansala. Page 15 of 15

C_CA_556_2013_j_3

YOGESH NATHABHAI CHAUHAN….Petitioner(s) Versus STATE OF GUJARAT  &  2….Respondent(s)


C/SCA/12881/2009 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.12881 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/­ ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether  their Lordships  wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether   it   is   to   be   circulated   to   the civil judge ? NO =================================================== YOGESH NATHABHAI CHAUHAN….Petitioner(s) Versus STATE OF GUJARAT  &  2….Respondent(s) =================================================== Appearance: MR AD OZA, with MR RAJESH K KANANI, ADVOCATES for the Petitioner(s) No. 1 MR PP BANAJI, AGP for the Respondent(s) No.1 & 3 MR NIKHILESH J SHAH, ADVOCATE for Respondent No.2 =================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA  Date : 09/04/2014   ORAL JUDGMENT (1) By way of this petition under Article 226 of the   Constitution   of   India,   the   petitioner has challenged order dated 04.08.2009 passed by   respondent   No.2­District   Appropriate Authority as well as order in appeal dated 24.09.2009   passed   by  respondent   No.3­State Appropriate Authority. Page 1 of 10 C/SCA/12881/2009 JUDGMENT (2) The facts which can be culled out from the record   of   the   petition   are   that   the petitioner,   a   medical   practitioner,   is having a clinic, namely, Chiranjivi Hospital and   Sonography   Clinic   at   Shihor,   Dist. Bhavnagar   and   got   registered   his   clinic   as well   as   his   sonography   machine   under   the Pre­conception   and   Pre­natal   Diagnostic Techniques   (Prohibition   of   Sex   Selection) Act, 1994 (for short ‘the Act’) in the year 2006,   certificate   of   which   is   annexed   with the   present   petition.   It   is   a   matter   of record   that   on   16.01.2009   the   District Appropriate   Authority   decided   to   carry   out surprise   check   at   various   clinics   and accordingly the clinic of the petitioner was checked. It appears that the main reason for such   surprise   check   was   increase   of   male birth   ratio.   Record   shows   that   panchnama came   to   be   prepared   and   the   sonography machine of the petitioner came to be sealed. The   said   proceedings   were   followed   by   show cause   notice   dated   17.01.2009,   which indicates   that   there   was   breach   of   Rules 17(1),   17(2),   9(1),   9(4),   10,   9(8)   of   the Pre­conception   and   Pre­natal   Diagnostic Techniques   (Prohibition   of   Sex   Selection) Rules, 1996 (for short ‘the Rules’). It is also provided in the show cause notice that Page 2 of 10 C/SCA/12881/2009 JUDGMENT under sub­section (3) of Section 20 of the Act,   appropriate   authority   suspended   the registration   of   the   petitioner   with immediate   effect.   It   further   appears   that the petitioner immediately gave reply to the show   cause   notice  by  communication   dated 19.01.2009.   Record   further   indicates   that thereafter special meeting of PNDT Advisory Committee, Bhavnagar, was held on 20.01.2009 wherein   cases   of   four   doctors,   including that of the  petitioner,  were considered and the   committee   advised   that   a   criminal complaint   be   filed   against   the  petitioner. It is also a matter of record that the said order   was   challenged   by   the  petitioner  by way   of   filing   an   appeal   as   provided   under Section   21   of   the   Act,   which   came   to   be registered   as   Appeal   No.2   of   2009.   The appellate   authority   disposed   of   the   said appeal on the ground that final order is yet to be passed and while disposing of the said appeal   directed   District   Appropriate Authority,   Bhavnagar   to   consider   the   reply filed   by   the  petitioner  and   to   take   final decision under Section 20(2) of the Act. It appears   that   after   the   appeal   came   to   be disposed   of,   the   appropriate   authority   by order   dated   19.05.2009   passed   an   order whereby the registration of the petitioner’s Page 3 of 10 C/SCA/12881/2009 JUDGMENT clinic   was   cancelled   in   exercise   of   powers under   Section   17(4)(a)   of   the   Act.   It further appears that the petitioner filed an appeal   against   the   aforesaid   order,   which came   to   be   partly   allowed   by   order   dated 08.06.2009   by   the   appellate   authority wherein following observations are made: “In   view   of   the   foregoing   reasons,   the   appeal filed by the appellant is partly allowed to that extent only. The Appropriate Authority, Bhavnagar is   directed   to   place   the   matter   before   the Advisory Committee for its advice and then pass the order as it deems fit under section 20(2) of the Act within a period of thirty days from the receipt of this order.” (3) After   the   proceedings   came   to   be   referred back   to   the   appropriate   authority,   as aforesaid,   it   passed   the   impugned   order dated   04.08.2009   relying   upon   the   earlier order   dated   19.05.2009   of   the   Appropriate Authority, the State Appropriate Authority’s order in appeal dated 08.06.2009, the office note of Advisory Committee, Bhavnagar dated 31.07.2009 and the letter of Chairman of the Advisory   Committee,   Bhavnagar   dated 31.07.2009.   Being   aggrieved   by   the   said order,   the   petitioner   approached   the appellate authority under Section 21 of the Act   by   filing   an   appeal,   which   came   to   be registered   as   Appeal   No.6   of   2009,   which Page 4 of 10 C/SCA/12881/2009 JUDGMENT came   to   be   dismissed   vide   order   dated 24.09.2009. Hence, the present petition. (4) It   may   be   noted   that   this   Court   on 04.02.2010 passed the following order in the present petition: “RULE returnable in the last week of April 2010.  It is pointed out that in identical matters the concerned   authority   has   taken   a   contrary   view. Further,   since   the   sonography   machine   has   been sealed   since   last   one   year,   and   since   the registration has also been canceled, it will not be appropriate to continue the same. This penalty seems to be beyond the maximum permissible penalty under   the   law.   In   that  view   of   the   matter,   the impugned   orders   passed   by   the   authority   are ordered   to   be   kept   in   abeyance   till   the   final outcome   of   this   petition.   Direct   service   is permitted.” (5) It   is   a   matter   of   record   that   the respondents   authorities   herein   filed   an inter­court   appeal   being  Letters   Patent Appeal   No.1214   of   2010   wherein   while allowing the appeal, the following order is passed by the Division Bench of this Court: “This   appeal   has   been   preferred   against   the interim   order   dated   4.2.2010   passed   by   the learned Single Judge in SCA No. 12881 of 2009, which reads as follows:­ RULE  returnable  in   the   last   week   of   April 2010.  It is pointed out that in identical matters the concerned authority has taken a contrary Page 5 of 10 C/SCA/12881/2009 JUDGMENT view. Further, since the sonography machine has   been   sealed   since   last   one   year,   and since   the   registration   has   also   been canceled,   it   will   not   be   appropriate   to continue the same. This penalty seems to be beyond the maximum permissible penalty under the   law.   In   that   view   of   the   matter,   the impugned orders passed by the authority are ordered   to   be   kept   in   abeyance   till   the final   outcome   of   this   petition.   Direct service is permitted.” The   case   was   taken   up   on   20.5.2010,   when   this Court passed ad­interim order of stay against the said order. In the light of the interim order, as no stay is now operating in the SCA and in spite of notice issued to the concerned respondent writ petitioner, the said respondent did not choose to appear and oppose the prayer, we are of the view that SCA No. 12881/09 be heard on merits without any interim order. For   the   reason   aforesaid,   interim   order   dated 4.2.2010, as clarified by order dated 13.5.2010 both   are   set   aside.   SCA   No.   12881   of   2009   be placed   before   the   learned   Single   Judge immediately for decision on merits. Both Appeal and Civil Application stand disposed of.” (6) Heard   Mr.Arun   D.   Oza,   with   Mr.Rajesh   K. Kanani,   learned   advocates   for   the petitioner, Mr.P.P.Banaji,  learned Assistant Government Pleader for respondent  Nos.1 and 3, and Mr.Nikilesh J. Shah, learned advocate for respondent No.2. (7) Learned   advocate   for   the   petitioner   has taken this Court through the factual matrix arising out of this petition and has raised various   contentions,   including   the Page 6 of 10 C/SCA/12881/2009 JUDGMENT contention   that   the   petitioner   has   been arbitrarily singled out in as much as that in   case   of   similarly   situated   doctors   and even in cases where breach is more serious, a   lenient   view   has   been   taken   by   the   same authority.   It   is   further   contended   that   as such   the   order   dated   08.06.2009   is   not properly   adhered   to   by   the   appropriate authority   while   passing   the   impugned   order dated 04.08.2009 and has mechanically passed a   similar   order.   It   is   further   submitted that as such no advise for cancellation of the   registration   was   ever   given   by   the advisory   committee   and   therefore   the impugned orders are bad and illegal.  (8) Learned   advocate   for   the   petitioner   also invited attention of this Court to the reply to   the   show   cause   notice   given   by   other doctors   and   has   further   submitted   that   the same   authority   has   considered   such   reply, which   only   says   that   from   now   onwards   no mistakes   or   breach   of   any   rule   shall   be committed,   which   is   accepted   by   the   same authority, whereas a different view is taken in case of the  petitioner. Learned advocate for   the   petitioner   further   expressing   the anguish   has   submitted   that   since   2009 Page 7 of 10 C/SCA/12881/2009 JUDGMENT sonography   machine   of   the   petitioner   is sealed and considering the reply of the show cause   notice  dated   17.01.2009   it   clearly indicates   that   the   reply   given   by   the petitioner  are self­sufficient and the same should have been taken into consideration.  (9) Learned   advocate   for   the   petitioner   has further contended that as such in the facts and   circumstances   of   this   case   as   the petitioner  is   not   undertaking   any investigation by invasive techniques and he has   been   registered   only   for   ultra­sound, the  petitioner  is   not   supposed   to   fill­up Form­G as per Rule 10 of the Rules. Learned advocate   for   the   petitioner   relying   upon Rule 12 of the Rules contended that seal and seizure can be effected if there is reason to believe that it may furnish evidence of commission   of   an   offence   punishable   under the Act. (10) During course of hearing, on inquiry, it is found   that   the   impugned   order   dated 04.08.2009   is   passed  without  any   notice   or hearing.   Learned   advocate   for   respondent No.2   has   candidly,  on   the   basis   of  the original   record,   submitted   that   no   hearing is   given   to   the  petitioner.   As   provided under sub­section (2) of Section 20 of the Page 8 of 10 C/SCA/12881/2009 JUDGMENT Act,   the   appropriate   authority   has   to   give reasonable opportunity of being heard to the Genetic   Counselling   Centre,   Genetic Laboratory   or   Genetic   Clinic,   which   is admittedly   not   given   to   the  petitioner. Taking   into   consideration   the   aforesaid facts, it is therefore not necessary to deal with   the   other   contentions   raised   by   the petitioner, the same are kept open. In light of the aforesaid admitted position therefore the   impugned   order   dated   04.08.2009   is arbitrary and deserves to be quashed and set aside on the short ground of non­observance of principles of natural justice. Similarly though the said order is confirmed in Appeal No.6 of 2009 by order dated 24.09.2009, both the orders impugned herein dated 04.08.2009 as   well   as   dated   24.09.2009   deserve   to   be quashed   and   set   aside.   Respondent   No.2   is hereby   directed   to   hear   the  petitioner, taking into consideration the material which is already placed before it and after giving an   opportunity   of   personal   hearing   to   the petitioner  and permitting the  petitioner  to adduce further explanation and/or documents. Considering   the   fact   that   the   issue   is   of 2009,   respondent   No.2   shall   carry   out   such an   exercise   within   04   (four)   weeks   from today i.e. on or before 09.05.2014.  Page 9 of 10 C/SCA/12881/2009 JUDGMENT (11) It may further be clarified that the present petition   is   allowed   only   on   the   aforesaid sole   ground,   even   though   the  petitioner  as well   as   respondent   No.2   has   raised   various contentions,   in   view   of   the   aforesaid factual   position,   this   Court   has   not   dealt with   other   contentions   that   are   raised   by the   learned   advocate   for   the   respective parties.   Respondent   No.2   authority   shall decide   the   issue  de   novo,  without  in   any manner   influenced   by   any   of   the   earlier orders as well as the present judgment, only in   accordance   with   law,   after   giving   an opportunity   of   being   heard   to   the petitioner, strictly on merits. It would be open   for   the   petitioner  to   take   all contentions   available   to   him   before respondent No.2 authority. (12) Consequently,   the   petition   is   allowed. Impugned orders dated 04.08.2009 as well as dated   24.09.2009   are   hereby   quashed. However,   the   position   as   existed   on 17.01.2009   shall   continue   till   final   order is passed by respondent No.2. Rule is made absolute   to   the   aforesaid   extent.  There shall be no order as to costs. Sd/­        [R.M.CHHAYA, J ] Bhavesh[pps]*  Page 10 of 10C_SCA_12881_2009_j_5

JASHMINA DILIP DEVDA vs STATE APPROPRIATE AUTHORITY PC AND PNDT ACT,1994 & 2….Respondent(s)


C/SCA/6215/2011 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION  NO. 6215 of 2011 FOR APPROVAL AND SIGNATURE:  HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/­ ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To   be   referred   to   the   Reporter   or not ? YES 3 Whether   their   Lordships   wish   to   see the fair copy of the judgment ? NO 4 Whether   this   case   involves   a substantial question of law as to the interpretation of the constitution of India,   1950   or   any   order   made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ======================================================= JASHMINA DILIP DEVDA….Petitioner(s) Versus STATE APPROPRIATE AUTHORITY UNDER PNDT ACT  &  1….Respondent(s) ======================================================= Appearance: MR BHARAT T RAO for the Petitioner(s) No. 1 MR BHARAT VYAS AGP for the Respondent(s) No. 1 MR NIKHILESH J SHAH for the Respondent(s) No. 2 ======================================================= CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Page 1 of 19 C/SCA/6215/2011 JUDGMENT Date : 05/08/2013 ORAL JUDGMENT 1. The   present   petition   has   been   filed   by   the petitioner   under   Articles   226   and   227   of   the Constitution   of   India   as   well   as   under   the provisions of the Pre­Natal Diagnostic Techniques (Regulation   and   Prevention   of   Misuse)   Act,   1994 and   Rules   made   thereunder   challenging   the   order passed   by   the   State   Appropriate   Authority   in Appeal   No.2   of   2011   dated   17.03.2011   on   the grounds stated in the memo of petition. 2. The facts of the case briefly summarized are that the   petitioner   is   having   hospital   at   Ahmedabad known   as   Dev   Hospital,   which   is   one   type   of Polyclinic   having   other   doctors   from   other branches   like   Gynecology,   Physician   and   General Surgeon, who are also treating patient in the said hospital. The hospital of the petitioner has been granted   registration   under   the   Pre­Natal Diagnostic   Techniques   (Regulation   and   Prevention of Misuse) Act, 1994 (hereinafter referred to as the   “PNDT   Act”)   for   carrying   out   such   genetic counseling,   pre­natal   diagnostic   procedure   and pre­natal   diagnostic   test,   which   is   valid   upto Page 2 of 19 C/SCA/6215/2011 JUDGMENT 23.05.2015.   One   Dr.Ruchita   Sharda,   Gynecology   is also attending the hospital and the husband of the petitioner is also a doctor. It is the case of the petitioner that one Smt.Shilpa Punani of Wadhwan, District : Surendranagar had been admitted in the hospital of the petitioner on 10.09.2010 and she was   advised   to   undergo   ultra   sonography   test, which was carried out and Form No.F was filled in by   Dr.Ruchita   Sharda.   Sonography   test   revealed that foetus, which is developing, was likely to be a   mentally   retarded   child   if   it   is   allowed   to grow.   Therefore   as   per   the   medical   science   and jurisprudence,   advice   has   been   given   to   the patient that foetus is not properly developed and there are chances of complication if it is allowed to give a birth to a child. Therefore, husband and family   members   of   the   patient   agreed   for termination   of   pregnancy   and   the   operation   was performed on 11.09.2010 after obtaining necessary consent and other formalities were completed. However,   one   relative   of   Smt.Shilpaben serving   in   the   office   of   the   Hon’ble   Chief Minister   has   misused   the   office   and   pressurized the   office   of   the   Health   &   Family   Welfare Page 3 of 19 C/SCA/6215/2011 JUDGMENT Department   to   initiate   action   against   the petitioner, which led to complaint by the official and   they   have   visited   the   hospital   and   in violation of Rule 12, prepared the panchnama and seized the sonography machine and certain files of the  hospital   of the  petitioner.  Thereafter,  same has been confiscated and seal has been applied and custody   has   been   given   to   the   petitioner. Therefore,   the   petitioner   approached   the authority,   who   after   following   procedure,   passed impugned   order.   It   is   also   contended   that   the Appropriate Authority without following procedure as prescribed under Section 20(1) and 20(2) of the Act   passed   an   order   of   suspension   of   the registration   of   the   petitioner   dated   25.10.2010 produced at Annexure­D. 3. Heard   learned   counsel,   Shri   B.T.   Rao   for   the petitioner, learned AGP Shri Bharat Vyas for the respondent   no.1   and   learned   counsel,   Shri   N.J. Shah for the respondent no.2. 4. Learned   counsel,   Shri   Rao   referred   to   the provisions   of   Section   20   of   the   PNDT   Act   and submitted   that   provision   of   Sections   20(1)   and 20(2)   of   the   PNDT   Act   clearly   provide   for   the Page 4 of 19 C/SCA/6215/2011 JUDGMENT issuance of the notice and reasonable opportunity of   being   heard   before   passing   order   regarding suspension   of   the   registration.   Learned   counsel, Shri   Rao   submitted   that   as   it   has   a   consequence both   civil   as   well   as   economic   consequence   and also   it   may   affect   the   very   profession   of   the petitioner,   such   an   order   could   not   have   been passed   in   violation   of   principles   of   natural justice. Learned counsel, Shri Rao submitted that though Section 20(3) of the PNDT Act provides in public interest to take action for the reasons to be recorded in writing, the present case would not be   covered   by   such   provision.   He   therefore submitted that having regard to the background of the   facts   that   it   was   in   the   interest   of   the patient as well as foetus, which has not properly developed   and   if   it   was   allowed   to   continue,   it would have led to birth of retarded child. Learned counsel,   Shri   Rao   therefore   submitted   that   as   a member  of  medical  profession,  the  petitioner   and others   are   expected   to   guide   the   patient   and, therefore,   with   the   consent   of   patient   and   her family members and that too, after completing the formalities  and  the  procedure,  the  operation   was Page 5 of 19 C/SCA/6215/2011 JUDGMENT performed   for   termination   of   the   pregnancy   on 11.09.2010. Learned counsel, Shri Rao referred to Annexure­B and  also  referring  to  patient   history record­sheet   and   submitted   that   it   is   dated 10.09.2010 and it refers to Hydrocephalus. He   has also referred to Annexure­C as well as Annexure­D dated   25.10.2010   and   submitted   that   the registration   has   been   suspended   in   purported exercise of power under Sections 20(1) and 20(2) of   the   PNDT   Act.   Learned   counsel,   Shri   Rao submitted   that   no   notice   has   been   given   as required under law, which is mandatory requirement for compliance of the rules of natural justice. He submitted   that   admittedly   no   such   notice   or opportunity   of   hearing   has   been   given   and, therefore, such action is bad and illegal. He also referred   to   the   order   passed   by   the   Appellate Authority dated 21.12.2010 produced at Annexure­F. He  submitted   that  though   the  Appellate  Authority has in terms accepted that no notice was issued as required under law, which was legally required to record the reasons before passing order and also the   fact   that   licence   has   been   suspended,   the operative portion of the Appellate Authority does Page 6 of 19 C/SCA/6215/2011 JUDGMENT not satisfy the order and has merely directed to pass suitable order suggesting to fill in lacuna including the provisions of the law. He therefore submitted   that   the   Appellate   Authority   has   also adopted and has to perform its statutory duty as an   authority   and   it   has   led   to   the   present petition when the authority on the basis of such order   of   remand   passed   fresh   order   dated 29.12.2010 produced at Annexure­G, against which, Appeal was preferred, wherein the order came to be passed   by   the   Appellate   Authority   rejecting Appeal,   which   has   led   to   filing   of   the   present petition.   Learned   counsel,   Shri   Rao   pointedly referred   to   the   memo   of   Appeal   as   well   as   the order where the submissions are recorded. Again he emphasized that there is breach of the mandatory provision   of   law,   which   has   not   been   followed. However to fill in lacuna and justify the action, the order is passed in purported exercise of power under Section 20(3) of the PNDT Act. Further the deficiency   are   mentioned,   however,   it   may   be   a procedural   lapse   but   it   would   not   amount   to violation   of   law,   by   which,   harsh   action   of suspension   of   the   registration   and   seal   of   the Page 7 of 19 C/SCA/6215/2011 JUDGMENT machine could be taken by the respondents. Learned counsel, Shri Rao therefore submitted that it was incumbent upon the authority as well as appellate authority to first consider as to whether there is any   violation   of   provisions   of   the   Act,   which would   justify   such   action.   Learned   counsel,   Rao referred to the papers including the communication produced   at Annexure­R­1  with  affidavit  in  reply on behalf of the respondent no.1 addressed by the patient. He also referred to the affidavit of the patient   and   also   statement   dated   27.10.2010   and submitted   that   affidavit   is   required   to   be considered   closely   as   stamp   paper   is   of   Wadhwan and the name of the purchaser  is of the patient herself,   who   is   said   to   have   purchased   on   20th October,   2010.   He   submitted   that   though   it   has been   denied,   she   has   not   consented   for   the operation nor does the paper bear signature, fact remains that it was on the basis of the medical exigency,   she   has   been   advised   with   full understanding   and,   therefore,   the   provisions   of law would not be attracted. Learned counsel, Shri Rao also referred to the provisions of Section 30 of   the   Act,   which   provides   for   ‘power   of   search Page 8 of 19 C/SCA/6215/2011 JUDGMENT and seizure the record r/w Rule 12 of the Rules. He submitted that Rule 12 provides for procedure for search and seizure. Learned counsel, Shri Rao has   referred   to   Rule   12   in   detail   and   submitted that   the   procedure   has   to   be   followed   and   two independent   witnesses   are   required   to   be   kept present.   Therefore,   learned   counsel,   Shri   Rao submitted that how search is made unilaterally is not mentioned. 5. Learned counsel, Shri N.J. Shah for the respondent authority   referred   to   the   papers   in   detail including   page   no.33.   He   also   referred   to   the facts   as   to   how   the   hospital   was   visited   and pointedly referred to the facts that the complaint was made, which was scrutinized and as there was a female  foetus,  termination  was  made  resulting  in this   complaint   for   the   alleged   breach   of   the violation of provisions of law. He submitted that though   it   has   been   stated   that   it   could   be   a technical  lapse  in  the  maintainability  of  record and   fill   the   form,   it   may   not   be   accepted.   He submitted   referring   to   Section   5(2)   of   the   Act that it was examination of the sex of a child and, therefore,   underlying   object   of   the   Act   is Page 9 of 19 C/SCA/6215/2011 JUDGMENT required   to be  considered.  Learned  counsel,  Shri Shah referred to the provision of Section 20(3) of the   Act   and   submitted   that   it   starts   with   nonobstant   clause   and   in   the   public   interest,   such order   could   be   passed.   Similarly   he   referred   to Section 30 read with Rule 12 and submitted that it empowers   seizure   and   seal   on   such   machine   and, therefore, when it has been seized after following procedure   including   the   witnesses,   it   cannot   be said that the procedure has not been followed. He submitted   that   it   may   not   be   necessary   to   take technician. He therefore submitted that in view of underlying   object   of   the   Act,   no   lenient   view could be taken. He has also referred to and relied upon   the   judgment   of   the   Hon’ble   Apex   Court   in case of  P.K. Palanisamy Vs. N. Arumugham & Anr., reported   in  (2009)   9   SCC   173  and   pointedly emphasized   the   observations   made   in   para   nos.28 and   29   and   submitted   that   if   the   authority   is empowered by the statute merely because there is no specific mention of a particular section like Section   20(3)   of   the   Act,   the   order   may   not   be rendered   illegal.  He  also  referred  to  affidavitin­reply   at   length   and   submitted   that   if   the Page 10 of 19 C/SCA/6215/2011 JUDGMENT foetus   was   not   developing   well,   it   was   life threatening and, therefore, the provisions of law could not have been contravened.  6. In  rejoinder,  learned  counsel,  Shri  Rao  referred to   the   reference   book   of   Ultrasonography   in Obstetrics and Gynecology by Peter W. Callen, M.D. produced   at   Annexure­R­4   along   with   the   reply filed   on   behalf   of   the   respondent   no.2.   Learned counsel,   Shri   Rao   submitted   that   such   provision has   civil   consequence   and   in   case   of   such   penal provision has to be considered directly and it has to   be   subject   to   the   satisfaction   of   the authority. He submitted that before coming to any conclusion about the breach or provisions of law, it   requires   to   be   seen   whether   there   is   any justification. He again referred to the papers and submitted that when hydrocephalus is diagnosed and it is allowed to give birth to said foetus, there is   chances   and   possibilities   of   retarded   child, therefore, such termination of pregnancy cannot be a ground for punishing doctor, who has performed his duty as required in the medical provision. He further submitted that had he not advised or had he   not   accepted   the   decision   of   the   patient   for Page 11 of 19 C/SCA/6215/2011 JUDGMENT termination,   he   could   not   have   been   blamed   in future. He submitted that there is no dispute that sonography   reports   are   of   the   same   patient   in which   it   has   been   recorded   specifically   about hydrocephalus   Therefore,   he   submitted   that   the present petition may be allowed. 7. In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not. 8. First aspect which is required to be considered is regarding   the   background   of   the   facts.   It transpires   that   the   patient   had   travelled   from Surendranagar   (Wadhwan).   Admittedly   the   fact   is that   as   required   under   the   law   and   procedure, necessary form/writing for consent of patient for undergoing   operation/surgery   has   been   filled   in. If   the   patient   and/or   her   relatives     were   not willing,   the   pregnancy   could   not   have   been terminated,   meaning   thereby,   the   complainant   and his   family   members   of   the   patient   have   not accepted the medical advise and shown willingness for the surgery and thereafter cannot he heard to say that there is violation of provisions of the PNDT   Act.   This   issue   is   also   required   to   be Page 12 of 19 C/SCA/6215/2011 JUDGMENT considered  in  background   of the  medical  science. The  diagnosis  of  the  foetus  having  Hydrocephalus at the time of sonography may have led to such a decision. Therefore considering underlying object of Act that termination of pregnancy of the female foetus   is   required   to   be   curbed   and   to   achieve object in public interest, such Act has been made. However   it   cannot   be   stretched   that   even   after medical opinion or medical diagnosis when there is possibility of either risk to the life or whether child   to   be   born   may   have   abnormality,   such termination   of   pregnancy   is   not   allowed   or permitted.  In fact on the basis of the right of privacy as well as human rights, patient, who is expected mother would be a best judge or a person to   have   such   decision   guided   by   the   medical science or opinion. Reference is made to the book of Ultrasonography in Obstetrics and Gynecology by Peter W. Callen, M.D., which clearly provides that “Congenital   hydrocephalus   has   generic implications”.  It   is   observed   that   “When hydrocephalus is diagnosed before viability, many parents may request termination of pregnancy. When this   option   is   not   accepted,   and   in   those   cases Page 13 of 19 C/SCA/6215/2011 JUDGMENT recognized   later   on   in   pregnancy,   a   thorough discussion of the possible choices with the couple is recommended. Many authors believe that delivery when   fetal   maturity   is   achieved   and   prompt neurologic treatment will maximize the chances of survival   and  normal  development  for  the  affected infants.” Therefore where there are possibilities of any abnormality of foetus which is allowed to develop may result in a child with law intellect causing   major   stress   to   the   couple   or   mother, which   one   has   to   suffer   could   be   avoided. Therefore may be the object of the Act is loadable but it has to be considered with background of the facts given in a case. 9. Moreover as contended by the petitioner referring to   the   statutory   provisions   of   Section   20   read with Rule 12, it is evident that before taking any such   issue   which   involves   civil   consequence, opportunity   of   hearing   is   required   to   be considered. However admittedly no opportunity has been   given   and   no   notice   as   required   has   been given,   which   would   amount   to   denial   of   rules   of natural justice. Though in the reply, it has been contended   that   such   a   contention   is   vague,   the Page 14 of 19 C/SCA/6215/2011 JUDGMENT fact remains that the provision of Section 20(1) and 20(2)  of the Act has not been complied  with which has led to earlier round of litigation and the   order   passed   by   the   appellate   authority   in Appeal No.5 of 2010 produced at Annexure­F would clearly   suggest   that   it   has   been   observed   that “Looking to the procedure adopted by the District Appropriate   Authority,   it   would   appear   that   the District   Appropriate   Authority   has   passed   order under section 20(1)(2) of the Act. The Appropriate Authority   was   required   to   issue   a   notice   to   the Genetic   Clinic   to   show   cause   as   to   why   its registration   should   not   be   suspended   for   the reasons   mentioned   in   the   notice   under   Section 20(1) & (2) of the Act. No such notice was issued to   the   Genetic   Clinic.   The   District   Appropriate Authority   was   legally   required   to   record   the reasons and then to pass the appropriate order and that   the   District   Appropriate   Authority   had   to specify   the   period   of   suspension   of   the registration”. This would clearly suggest that the procedure as required under Section 20(1) & (2) of the   Act   have   not   followed   with   regard   to   the issuance   of   the   notice   or   the   show   cause   notice Page 15 of 19 C/SCA/6215/2011 JUDGMENT and the order of the District Authority could have been set aside in Appeal. The Appellate Authority while remanding and deciding this matter seeks to have suggested the District Authority to resort to Section 20(3), which provides as under :­ “Notwithstanding   anything   contained   in subsections (1) and (2), if the Appropriate Authority   is   of   the   opinion   that   it   is necessary   or   expedient   so   to   do   in   the public interest, if 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 sub­section (1).” 10. Thus in order  to have an explanation or way out for   non   compliance,   sub­section   (3)   is   resorted that if for the reasons to be recorded in writing, it may suspend such cancellation without issuance of   notice.   Again   before   such   power   could   be exercised, it has to be :­ (i) in public interest; (ii) reasons   have   to   be   recorded   in   writing justifying that it is necessary in public interest   to   suspend   the   license   without notice. 11. Therefore   merely   by   stating   or   suggesting   that power   is   provided   in   sub­section   (3)   of   Section Page 16 of 19 C/SCA/6215/2011 JUDGMENT 20,   the   case   does   not   automatically   fall   under Section 20(3)  nor it could be covered  in such a manner. Admittedly no reasons are stated and there is no public interest. If the underlying objects are to be seen in public interest then every case would   be   falling   under   that   category   of   public interest   and   provision   of   Section   20(1)   &   (2) would   be   rendered   redundant.   Therefore   the Legislature has in a given circumstances kept the discretion open for the authority that such power could be exercised even without notice in a given case in a public interest subject to the reasons to   be   recorded   in   writing   that   is   not   the   case herein  and,  therefore,  the  contentions  raised  by learned   counsel,   Shri   Rao   are   required   to   be accepted on that count also. 12. The submission made by learned counsel, Shri Shah referring to the observations made by the Hon’ble Apex   Court   in   case   of  P.K.   Palanisamy   (supra), more   particularly,   paragraph   nos.28   and   29   are misconceived.   The   submission   that   it   is   not   the case of the petitioner that there is no power and, therefore, patient has the power is there and the order   cannot   be   set   aside   merely   because   the Page 17 of 19 C/SCA/6215/2011 JUDGMENT section   is   wrongly   mentioned   or   there   was   some lapse.   In   fact   this   judgment   would   not   have   any application to the facts of the case and for issue involved in this, it has been given with reference to   the   interpretation   of   the   provisions   of   the Code of Civil Procedure, 1908 and the issue is not that   section   or   the   provision   of   the   Act   is wrongly quoted but the issue is that the procedure prescribed   by   the   statute   has   not   been   complied with   and,   therefore,   the   reliance   placed   on   the observation   quoted   in   the   aforesaid   judgment   , reported in (2009) 9 SCC 173 (supra) in paragraph no.28   is   misconceived.   The   issue   is   not   with regard to the lack of power but the issue is with regard  to the exercise  of power in a given case subject to the compliance with the procedure like notice as contemplated under Section 20(1) & (2) of the Act. 13. Another   facet   of   argument   that   in   exercise   of discretion   under   Articles   226   and   227   of   the Constitution   of   India,   the   High   Court   may   not interfere with the order and the scope is limited is   also   misconceived.   In   fact   when   there   is   a breach   or   violation   of   the   provisions   of   the Page 18 of 19 C/SCA/6215/2011 JUDGMENT statute   requiring   compliance   with   the   rules   of natural justice, it is rather obligatory for the High Court to set aside such order and it cannot be   sustained.   A   useful   reference   can   be   made   to the judgment of the Hon’ble Apex Court in case of L. Hriday Narain Vs. Income Tax Officer, Bareilly, reported in AIR 1971 SC 33. Therefore, the present petition deserves to be allowed. 14. In the circumstances, the present petition stands allowed   in   terms   of   Para   No.21(A)   &   21(AA).   The impugned   order   passed   by   the   respondent   no.1   in Appeal   No.2   of   2011   dated   17.03.2011   confirming the order passed by the District Authority dated 29.12.2000 is hereby quashed and set aside. Rule is made absolute. No cost. Sd/­ (RAJESH H.SHUKLA, J.) Gautam Page 19 of 19C

_SCA_6215_2011_j_5

Mr.R.S.Mankad vs Unknown on 16 January, 2015


judfile

DR KALPESH J PATEL ­ Versus STATE OF GUJARAT & 1 ­


SCA/6625/2011 1/98 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 6625 of 2011
with
SPECIAL CIVIL APPLICATION No. 7234 of 2011
For Approval and Signature:
HON’BLE SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy
of the judgment ? No
4
Whether this case involves a substantial question
of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ? No
5 Whether it is to be circulated to the civil
judge ? No
=========================================================
C_SCA_6625_2011_j_3
=========================================================
Appearance : (In both SCAs)
MR MB GANDHI, MR CHINMAY M GANDHI for Petitioner
MR RASHESH RINDANI, ASSTT.GOVERNMENT PLEADER for Respondent No.1
MR NIKHILESH J SHAH for Respondent No.2
=========================================================
CORAM : HON’BLE SMT. JUSTICE ABHILASHA KUMARI
Date : 19/09/2011
COMMON C.A.V. JUDGMENT
1. As the parties to these petitions and the factual
matrix are the same and the issues involved in
both petitions are overlapping, it is found
appropriate to decide the petitions, which were
SCA/6625/2011 2/98 JUDGMENT
heard together, by a common judgment.
Special Civil Application No.6625/2011:
2. By preferring this petition under Article 226 of
the Constitution of India, the petitioner has
challenged the communication dated 13.05.2011,
whereby the explanation dated 01.05.2011 offered
by the petitioner to the notice dated 24.04.2011,
issued by the Appropriate Authority (District
Ahmedabad), for contraventions of the provisions
of the Pre­Conception and Pre­natal Diagnostic
Techniques (Prohibition of Sex Selection) Act,
1994 (“the PNDT Act” for short) has not been
accepted. The action of the Appropriate Authority
of sealing two Sonography machines in the Clinic
of the petitioner, as per Panchnama dated
13.05.2011, is also the subject­matter of
challenge.
3. Briefly stated, the facts, as stated in the
petition, and discernible from the material on
record, are as follows. The petitioner is a
Radiologist, holding an M.D., D.M.R.E. Degree. It
is stated that the petitioner had been to France
and Germany for about five years and had worked
SCA/6625/2011 3/98 JUDGMENT
as a Radiologist in the King Khalid Hospital at
Saudi Arabia. Thereafter, he had served in a
Government department for five years and had
later started his own independent Clinic in the
year 2003. The petitioner, at one point of time,
had a Sonography machine in a mobile van and his
registration number was 478. On 12.05.2006, the
respondent authority had seized certain documents
leading to the sealing of the Sonography machines
of the petitioner. This led to the filing of a
petition by the petitioner, being Special Civil
Application No.14495 of 2006, which was disposed
of, by order dated 03.08.2006 of this Court,
subject to furnishing of an Undertaking by the
petitioner. The petitioner filed Miscellaneous
Civil Application No.68 of 2007, seeking to
withdraw the Undertaking, which was permitted, by
order dated 05.02.2007. At that point of time,
the petitioner had his Radiology Clinic at
another place. Thereafter, the petitioner shifted
to the present Clinic, which is being run under
the name and style of “Dr.Kalpesh Patel’s Imaging
House”. The petitioner applied, afresh, for
SCA/6625/2011 4/98 JUDGMENT
registration of the said Clinic, which was
granted on 08.04.2009, as Registration No.813.
The Certificate of Registration has been issued
for five years and is valid upto 07.04.2014,
subject to the provisions of the PNDT Act and
Rules framed thereunder. It is stipulated
therein, that any contravention of the PNDT Act
and Rules will result in suspension, or
cancellation, of the Certificate of Registration,
before the expiry of five years, apart from
prosecution.
4. On 13.02.2010, the Appropriate Authority under
the PNDT Act visited the Clinic of the
petitioner and carried out an inspection. Certain
contraventions of the provisions of the PNDT Act
were found, inasmuch as Form­F was not being
filled up by the petitioner, though, as per the
respondents, the PNDT Act requires that it should
be filled up and signed by the concerned
Radiologist or Gynaecologist, who conducts the
Ultrasound procedure on pregnant women. The
Appropriate Authority found that Form­F was being
filled up by the staff of the petitioner which,
SCA/6625/2011 5/98 JUDGMENT
as stated in the said notice, is a serious
contravention. The petitioner replied to the
notice on 19.02.2010, offering his explanation,
and undertaking that he will take care in future,
and that Form­F shall be filled in by him. The
explanation of the petitioner was accepted by the
Appropriate Authority, as communicated to the
petitioner on 20.05.2010. The petitioner was
directed to ensure strict compliance of the
provisions of the PNDT Act. A second inspection
of the Clinic of the petitioner took place on
23.09.2010, and five contraventions of the PNDT
Act and Rules, in respect of filling up Form­F
were found, as detailed in the said notice. The
petitioner, once again, furnished his reply and
explanation to this notice, on 24.09.2010,
stating therein that he would rectify the lapses.
The explanation of the petitioner was accepted by
the District PNDT Advisory Committee and this was
communicated to the petitioner by the Appropriate
Authority, vide letter dated 01.12.2010. Once
again, the petitioner was directed to ensure
that no contraventions of the PNDT Act take place
SCA/6625/2011 6/98 JUDGMENT
at his Clinic in future, and the provisions of
the statute are strictly complied with.
5. The Clinic of the petitioner was inspected for
the third time on 28.04.2011, during which the
following contraventions of the PNDT Act were
found by the District Appropriate Authority:­
“1) Register to be maintained with details
of women (ANC) undergoing USG is not fill up
to date of today. It is filled upto date 23­
2­2011.
2) On inspection of form `F’ of period
January’ 11 to April 2011, in one form there
is no sign of doctor doing sonography and
its doctor’s declaration part. In eight form
`F’, there is no sign of the pregnant woman
in declaration of the woman part of the form
`F’. Totally nine form `F’ were filled with
deficiency or inaccuracy.”
6. The following documents/ materials also came to
be seized:­
“(1) The deficiently filled nine form `F’ as
mentioned above with a referral letter in
eight of them.
(2) The PNDT Register’s last page xerox
copy.”
7. The petitioner gave his explanation by letter
dated 01.05.2011. The said explanation was
considered by the District PNDT Advisory
Committee, but was not found to be satisfactory
SCA/6625/2011 7/98 JUDGMENT
as, by communications dated 20.05.2010 and
01.12.2010, the petitioner had been cautioned to
ensure strict compliance of the provisions of the
PNDT Act, despite which, further contraventions
were committed by him. The Appropriate Authority
informed the petitioner regarding the rejection
of his explanation, by the impugned communication
dated 13.05.2011. It is stated in the said
communication that, during the inspection
conducted on 28.04.2011, the petitioner was found
to have violated the provisions of Sections 4(3),
5(1)(b) of the PNDT Act and Rule 9(1), 9(4) and
10(1A) of the Pre­conception and Pre­natal
Diagnostic Techniques (Prohibition of Sex
Selection) Rules, 1996 (“the Rules” for short).
On 13.05.2011, a detailed Panchnama was drawn at
the Clinic of the petitioner, and two Sonography
machines that were in use by the petitioner, came
to be sealed. Aggrieved by this action of the
District Appropriate Authority, the petitioner
has assailed the same by way of this petition.
Special Civil Application No.7234/2011:
SCA/6625/2011 8/98 JUDGMENT
8. Pursuant to the search and seizure operation
conducted at the Clinic of the petitioner on
28.04.2011, during which two Sonography machines
came to be sealed, notice dated 28.04.2011 (the
extract of which is reproduced hereinabove) was
issued to the petitioner, to which he replied
vide letter dated 01.05.2011. As already stated
above, The explanation of the petitioner was not
found to be satisfactory by the District
Appropriate Authority, resulting in the issuance
of the impugned order dated 13.05.2011. It is
stated in the said order that the petitioner has
contravened the provisions of Sections 4(3), 5(1)
(b) of the PNDT Act and Rules 9(1), 9(4), and
10(1A) of the PNDT Rules, therefore, in exercise
of powers conferred under Sections 20(1) and
20(2) of the PNDT Act, and with regard to
Resolution No.3 of the District PNDT Advisory
Committee issued on 09.05.2011, the PNDT
Registration No.813 allotted to the Clinic of the
petitioner shall stand suspended, till further
orders. Being aggrieved by the suspension of the
registration of his Clinic by the above­mentioned
SCA/6625/2011 9/98 JUDGMENT
order, the petitioner has challenged the same, by
way of this petition.
9. With regard to the action of sealing of the
Sonography machines, Mr.M.B.Gandhi, learned
advocate for the petitioner, has made the
following submissions:­
(I) Though an alternative remedy is provided
under Rule 19 of the Rules, the petitioner is
invoking the jurisdiction of this Court as the
principles of natural justice have been violated
by the respondents, inasmuch as the petitioner
has not been given prior notice before sealing
the machines. Further, the petitioner has not
been made aware of the contraventions of the
provisions of the PNDT Act, for which the action
of sealing has been resorted to. As such, he has
been deprived of an opportunity of hearing and of
offering an explanation. In these circumstances,
the Court may entertain the petition, instead of
relegating the petitioner to the alternative
remedy.
(II) No notice has been issued to the
petitioner before the Panchnama was drawn on
SCA/6625/2011 10/98 JUDGMENT
13.05.2011. On 28.04.2011, the record was seized
from the Clinic of the petitioner. Sealing of the
machines can only be done for the purpose
mentioned in Section 30 of the Act, read with
Rule 12 of the Rules, in order to detect material
that provides evidence of a breach of the
provisions of the Act. No breach of the
provisions of the Act have been mentioned in the
impugned order, so as to justify the action of
sealing of the Sonography machines.
(III) Although there is no specific provision
in the PNDT Act for issuance of notice before
sealing the machines, however, it is a settled
principle of law that where an action, directly
and adversely, affects the fundamental rights of
an individual, the principles of natural justice
are required to be read into the provisions of
law. The petitioner has been deprived of carrying
on his profession, which constitutes a violation
of his fundamental rights under Article 19(1)(g)
of the Constitution of India, therefore, the
action of sealing the machines without following
the principles of natural justice is bad in law.
SCA/6625/2011 11/98 JUDGMENT
(IV) No specific order has been passed for
sealing the Sonography machines and no reasons
have been recorded why such an action has been
taken. The action of sealing has no reasonable
basis, therefore may be set aside.
10. With regard to the suspension of registration,
the submissions made by the learned advocate for
the petitioner are as below:
(i) Though an alternative remedy is provided
under Section 21 of the PNDT Act, the petitioner
is invoking the jurisdiction of this Court, as
the principles of natural justice have been
violated by the respondents while passing the
impugned order, suspending the registration of
the Clinic of the petitioner. In these
circumstances, the Court may entertain the
petition, instead of relegating the petitioner to
the alternative remedy.
(ii) The notice dated 28.04.2011 issued to
the petitioner under the provisions of Section
20(1) of the Act is not a proper notice as it has
not been issued in accordance with the mandate of
the Section. Section 20(1) contemplates that the
SCA/6625/2011 12/98 JUDGMENT
person concerned should be put to notice and
asked to show cause, why the registration should
not be suspended, or cancelled. Section 20(2)
provides for a reasonable opportunity to be
given to the person, to show cause. No
opportunity of hearing, in terms of this
provision of law has been provided to the
petitioner and the impugned order of suspension
has been passed straightaway.
(iii) The impugned order does not mention
the period for which the suspension is to be in
force, as provided in Section 20(2) of the Act.
(iv) The impugned order is an unreasoned and
non­speaking order. There are no reasons in
support of the conclusion arrived at, therefore,
the said order is bad in law.
(v) The Advisory Committee is required to be
consulted before taking action, as mandated in
Section 20(2), however, in the case of the
petitioner, there is no recommendation of the
Advisory Committee to suspend the registration of
the petitioner.
11. In support of his submissions, the learned
SCA/6625/2011 13/98 JUDGMENT
advocate for the petitioner has placed reliance
upon the following judgments:
(1) Naynaben Shantilal Pandya v. State of
Gujarat – 2006(3) GLR 2034
(2) Harbhajan Singh v. Nawanshahar Central CoOperative Bank Ltd. ­ (2004)10 SCC 606
(3) Ins Laljibhai Malhotra Through Power of
Attorney Holder v. Harit Shukla ­ LPA No.1566 of
2009 in SCA No.8678 of 2009 and cognate matters
decided on 26.08.2009.
(4) M.P.State Agro Industries Development
Corporation Ltd. v. Jahan Khan – (2007)10 SCC 88
(5) Oryx Fisheries Private Limited v. Union of
India – JT 2010(12) SC 35
(6) Lifecare Institute of Medical Science and
Research Pvt. Ltd. v. United India Insurance Co.
Ltd. & Ors. ­ 2010(2) GLH 512.*
(7) Satwati Deswal v. State of Haryana – (2010)1
SCC 126
(8) Kilol v. Shelat v. Municipal Corporation of
City of Ahmedabad & Anr. ­ 2009(1) GLH 13
(9) Sudesh Kumar v. State of Haryana – (2005)11
SCC 525.
(10) State of Mysore v. K. Manche Gowda – AIR
1964 SC 506
(11) Cantonment Board Dinapore v. Taramani Devi –
AIR 1992 SC 61
12. On the strength of the above submissions, it is
urged by the learned advocate for the petitioner
that the seals applied on the Sonography machines
SCA/6625/2011 14/98 JUDGMENT
be directed to be removed, and the impugned order
suspending the registration of the Clinic of the
petitioner, be quashed and set aside.
13. The petitions have been strongly opposed by
Mr.Nikhilesh J.Shah, learned advocate for
respondent No.2. Regarding the action of sealing,
Mr.Shah has made the following submissions:
(A) The petitioner has an alternative
statutory remedy available under the Rules, as he
can file an appeal, if aggrieved by the order of
the District Appellate Authority, to the State
Appellate Authority, as provided under Rule 19 of
the Rules, therefore, the petition may not be
entertained.
(B) The petitioner was found to have
contravened the provisions of the PNDT Act and
Rules twice, before the machines were sealed.
Though the explanations rendered by him on those
occasions were accepted, the petitioner had been
directed by the District Appropriate Authority to
strictly ensure that no further contraventions
take place, and had given assurances to that
effect. However, on 28.04.2011, when the team
SCA/6625/2011 15/98 JUDGMENT
visited the Clinic of the petitioner, it was
found that the petitioner had made several
contraventions, and it was thought necessary to
seal the Sonography machines of the petitioner,
in accordance with Section 30 of the PNDT Act,
read with Rule 12 of the Rules, as there is
reason to believe that the machines may furnish
evidence of the commission of an offence
punishable under the Act. A criminal case has
already been registered against the petitioner
for offences under the PNDT Act.
(C) The object of the PNDT Act is to prevent
female foeticide, and it is to achieve that end
that all contraventions of the Act are to be
curbed. The object of sealing the machines is to
provide evidence of the contraventions of the
PNDT Act. If the seals are directed to be
removed, important evidence may be lost that may
be crucial in the criminal case filed against the
petitioner. The action of sealing the machines is
in accordance with law and if aggrieved, the
petitioner may avail of the alternative remedy.
(D) There is no provision in the PNDT Act
SCA/6625/2011 16/98 JUDGMENT
mandating that notice be given before drawing the
Panchnama or sealing the machines. Without
prejudice to the above contention, notice under
Section 20(1) of the PNDT Act was already given
to the petitioner on 28.04.2011, to which the
petitioner has replied, therefore, the petitioner
was well aware of the contraventions of the PNDT
Act and Rules pointed out to him. Considering the
purpose for which sealing of machines is resorted
to, if prior notice of sealing is given, it would
frustrate the very purpose of the Act and render
Rule 12 nugatory.
(E) The submission of the petitioner that
his fundamental rights under Article 19(1)(g)
have been violated by sealing of the Sonography
machines is unfounded and untenable as he has
committed repeated contraventions of the PNDT Act
and Rules. The right to carry on a profession
means that it should be carried on lawfully. The
petitioner has stated in his reply that he is
carrying on a `business’, which discloses the
mindset of the petitioner.
14. Regarding the suspension of registration of the
SCA/6625/2011 17/98 JUDGMENT
petitioner, the learned advocate for respondent
No.2 has submitted that:
(a) The petitioner has an alternative
statutory remedy available under Section 21 of
the PNDT Act, which he can avail of, if aggrieved
by the suspension of registration of his Clinic,
therefore, the petition may not be entertained.
There is no violation of the principles of
natural justice in suspending the registration,
as he has been served with a notice under Section
20(1) of the PNDT Act, to which he has replied on
01.05.2011. It is stated in the notice that it
has been issued under Section 20(1) and (2) of
the Act, therefore, it is obvious that it has
been issued asking the petitioner to show cause
why the registration should not be suspended or
cancelled, as the said provisions deal with these
two contingencies only. The reply of the
petitioner has been considered by the District
Advisory Committee and found to be
unsatisfactory. The said Committee has
recommended suitable action be taken against the
petitioner, therefore, the District Appropriate
SCA/6625/2011 18/98 JUDGMENT
Authority has suspended the licence of the
petitioner, in accordance with the provisions of
the PNDT Act, after affording him an opportunity
of hearing that has been availed by him. The
suspension of registration is till further
orders. If aggrieved, the petitioner can file an
appeal under Section 21 of the PNDT Act, as
provided therein. The judgments cited by the
learned advocate for the petitioner will not be
applicable in the facts of the present case as
the principles of natural justice have not been
violated and the action of respondent No.2 is in
accordance with the provisions of the Act.
15. The learned advocate for respondent No.2 has
placed reliance upon the following judgments:
1) U.P.State Spinning Co. Ltd. v. R.S.Pandey &
Another ­ (2005)8 SCC 264
2) Uttaranchal Forest Development Corporation &
Anr. v. Jabar Singh & Others ­ (2007)2 SCC 112
3) Seth Chand Ratan v. Pandit Durga Prasad (D)
by LRS And Others ­ (2003)5 SCC 399
4) Karnataka Chemical Industries And Others v.
Union of India And Others ­ (2000)10 SCC 13
5) District Panchayat & Another v. Dr.Kaushik
Babulal Shah – Letters Patent Appeal No.1371 of
2009 & cognate matters in Special Civil
Application No.5830 of 2009, decided on
SCA/6625/2011 19/98 JUDGMENT
07.12.2009
6) Appropriate Authority v. H.G.Thakkar Hari XRays, Colour, Doppler Sonography & Ors. ­ Civil
Appeal No.8269 of 2009 arising out of SLP (C)
No.23358 of 2008, decided on 09.12.2009
7) Union of India and another v. Deoki Nandan
Aggarwal – AIR 1992 SC 96
8) Asmita R. Patel v. State of Gujarat and Anr.
­ 2009(1) GLH 584
16. Mr.Rashesh Rindani, learned Assistant Government
Pleader, has adopted the arguments made by the
learned advocate for respondent No.2.
17. It is not disputed by the learned advocate for
the petitioner that an alternative remedy is
available, as provided under Rule 19 of the Rules
against the action of the District Appropriate
Authority in sealing the Sonography machines of
the petitioner and under Section 21 of the PNDT
Act regarding suspension of the registration of
the Clinic of the petitioner. However, it has
been submitted by the learned advocate for the
petitioner that the action of sealing the
Sonography machines has been taken without
issuing a show cause notice or granting the
petitioner an opportunity of hearing, and that
SCA/6625/2011 20/98 JUDGMENT
the notice issued under Section 20(1) and (2) of
the PNDT Act before suspending the registration
of the Clinic of the petitioner, is not in
conformity with the said provision of law. In
this context, it would be appropriate to examine
the judgments relied upon by the learned
advocates for the respective parties.
18. The judgments cited by the learned advocate for
the petitioner may now be discussed:
(1) In Naynaben Shantilal Pandya v. State of
Gujarat (supra) , the challenge was to the order
of the Collector suspending the Resolution of the
Palanpur Nagarpalika, granting two advance
increments to the petitioner therein, in suo­motu
proceedings and to the order of the Deputy
Secretary (Appeals), confirming the order of the
Collector. Notice had been issued to the
Nagarpalika but not to the petitioner. The Court
came to the conclusion that the impugned order
under Section 258 of the Gujarat Municipalities
Act, 1963, passed by the Collector, deserved to
be quashed and set aside, as no notice or
opportunity of hearing was given to the
SCA/6625/2011 21/98 JUDGMENT
petitioner, who was the adversely affected party.
(2) In Harbhajan Singh v. Nawanshahar Central
Co­Operative Bank Ltd. (supra) , the appointments
of the appellants therein in the respondent­Bank
were challenged on the ground that the selection
process was vitiated by irregularities and
malpractices. The respondent­Bank stated before
the Court that certain irregularities were
noticed, and the Bank would take steps to remove
the appellants. The writ petition came to be
disposed of, as infructuous. The appellants were
served with notices for inquiry and obtained a
stay order from the Registrar of Cooperative
Societies. A contempt petition was filed for noncompliance of the order of the High Court. In
this background, the High Court directed removal
of the appellants from service. The Supreme Court
held that the High Court, in contempt
jurisdiction, should not have passed the order of
removal of the appellants in the absence of a
proper inquiry. It was held that as the
appellants were not given a reasonable
SCA/6625/2011 22/98 JUDGMENT
opportunity of being heard, the principles of
natural justice had been violated and the Bank
was directed to conduct a fresh inquiry and pass
appropriate orders.
(3) In Laljibhai Malhotra Through Power of
Attorney Holder v. Harit Shukla (supra) , the
Division Bench set aside the impugned order
cancelling the licence of the petitioner for
running the Cinema and exhibiting uncertified
films in the theater on the ground that the
petitioner had not been given an opportunity for
showing cause. The authorities were directed to
pass appropriate orders.
(4) In M.P.State Agro Industries Development
Corporation Ltd. v. Jahan Khan (supra) , the
issue arose whether the petition was
maintainable, despite an alternative remedy being
available, on the ground of violation of the
principles of natural justice. The Supreme Court
held as below:
“10. Before parting with the case, we may
SCA/6625/2011 23/98 JUDGMENT
also deal with the submission of learned
counsel for the appellants that a remedy by
way of an appeal being available to the
respondent, the High Court ought not to have
entertained his petition filed under Arts.
226/227 of the Constitution. There is no
gainsaying that in a given case, the High
Court may not entertain a writ petition
under Art. 226 of the Constitution on the
ground of availability of an alternative
remedy, but the said rule cannot be said to
be of universal application. The rule of
exclusion of writ jurisdiction due to
availability of an alternative remedy is a
rule of discretion and not one of
compulsion. In an appropriate case, in spite
of the availability of an alternative
remedy, a writ court may still exercise its
discretionary jurisdiction of judicial
review, in at least three contingencies,
namely, (i) where the writ petition seeks
enforcement of any of the fundamental
rights; (ii) where there is failure of
principles of natural justice or (iii) where
the orders or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged. In these circumstances, an
alternative remedy does not operate as a
bar. (See: Whirpool Corporation V/s.
Registrar of Trade Marks, Harbanslal Sahnia
& Anr. V/s. Indian Oil Corporation Ltd. &
SCA/6625/2011 24/98 JUDGMENT
Ors., State of H.P. V/s. Gujarat Ambuja
Cement Ltd. and Sanjana M.Wig V/s. Hindustan
Petroleum Corporation Ltd.).”
(5) In Oryx Fisheries Private Limited v. Union
of India (supra) , the show cause notice was
quashed and the cancellation of the registration
certificate of the appellant was set aside on the
ground that no reasons were given in the original
order, and that the show cause notice had been
issued with a pre­determined mind. The Supreme
Court held as below:
“24. It is well settled that a quasijudicial authority, while acting in exercise
of its statutory power must act fairly and
must act with an open mind while initiating
a show cause proceeding. A show cause
proceeding is meant to give the person
proceeded against a reasonable opportunity
of making his objection against the proposed
charges indicated in the notice.
25. Expressions like “a reasonable
opportunity of making objection” or “a
reasonable opportunity of defence” have come
up for consideration before this Court in
the context of several statutes.
26. A Constitution Bench of this Court in
Khem Chand v. Union of India and others,
SCA/6625/2011 25/98 JUDGMENT
reported in AIR 1958 SC 300, of course in
the context of service jurisprudence,
reiterated certain principles which are
applicable in the present case also.
27. Chief Justice S.R. Das speaking for the
unanimous Constitution Bench in Khem Chand
(supra) held that the concept of ‘reasonable
opportunity’ includes various safeguards and
one of them, in the words of
the learned Chief Justice, is:
“(a) An opportunity to deny his guilt
and establish his innocence, which he
can only do if he is told what the
charges leveled against him are and the
allegations on which such charges are
based;”
28. It is no doubt true that at the stage of
show cause, the person proceeded against
must be told the charges against him so that
he can take his defence and prove his
innocence. It is obvious that at that stage
the authority issuing the chargesheet,
cannot, instead of telling him the charges,
confront him with definite conclusions of
his alleged guilt. If that is done, as has
been done in this instant case, the entire
proceeding initiated by the show cause
notice gets vitiated by unfairness and bias
and the subsequent proceeding become an idle
ceremony.
29. Justice is rooted in confidence and
justice is the goal of a quasi­judicial
SCA/6625/2011 26/98 JUDGMENT
proceeding also. If the functioning of a
quasi judicial authority has to inspire
confidence in the minds of those subjected
to its jurisdiction, such authority must act
with utmost fairness. Its fairness is
obviously to be manifested by the language
in which charges are couched and conveyed to
the person proceeded against. In the instant
case from the underlined portion of the show
cause notice it is clear that the third
respondent has demonstrated a totally closed
mind at the stage of show cause notice
itself. Such a closed mind is inconsistent
with the scheme of Rule 43 which is set out
below. The aforesaid rule has been framed in
exercise of the power conferred under
Section 33 of The Marine Products Export
Development Authority Act,
1972 and as such that Rule is statutory in
nature. ”
(6) In Lifecare Institute of Medical Science and
Research Pvt. Ltd. v. United India Insurance Co.
Ltd. & Ors. (supra) , a Division Bench of this
Court was dealing with a situation where the
petitioner­hospital, which was recognized by the
respondents­Insurance Companies for cashless and
reimbursement claims, was debarred, without
SCA/6625/2011 27/98 JUDGMENT
issuance of a show cause notice, or giving any
form of hearing, before taking the said decision.
In this context, it was held that:
“10. There is nothing on record to suggest
that the respondents had issued any notice
or disclosed any adverse materials to the
petitioners before taking the final
decision. The details of the materials in
possession of the respondents are also not
clearly forthcoming. In fact, as already
noted, in the previous meeting, there was
a view that notice should be issued.
However, to avoid issuance of such notices,
instead of depaneling the hospitals
concerned, they were put “on declined
list of hospitals”. In effect, however,
the result remains the same. Treatment
that the patients would take in these
hospitals would not qualify either for
cashless policy or for reimbursement of the
expenses. There is no outer time limit for
which this order would operate. The effect,
therefore, will be that by the impugned
order, the respondents have virtually,
black­listed the petitioners hospitals and
such blacklisting would continue for an
indefinite period. Such an action cannot be
upheld in absence of any hearing
whatsoever.
SCA/6625/2011 28/98 JUDGMENT
11. In the case of Southern Painters, M/s.
v. Fertilizers and Chemicals Travancore
Ltd. AIR 1994 SC 1277, the Apex Court
observed as under:
“The deletion of the appellant’s name
from the list of approved contractors on
the ground that there were some
vigilance report against it, could only
be done consistent with and after the
compliance of the principles of natural
justice. That not having been done, it
requires to be held that withholding of
the tender form from the appellant was
not justified. In our opinion, the High
Court was not justified in dismissing
the writ petition.”
In the case of Raghunath Thakur v. State of
Bihar, AIR 1989 SC 620, the Apex Court
observed as under:
“Indisputably, no notice had been given
to the appellant of the proposal of
blacklisting the appellant. It was
contended on behalf of the State
Government that there was no
requirement in the rule of giving any
prior notice before blacklisting any
person. In so far as the contention
that there is no requirement
specifically of giving any notice is
concerned, the respondent is right. But
it is an implied principle of the rule
of law that any order having civil
consequence should be passed only after
following the principles of natural
justice. It has to be realised that
blacklisting any person in respect of
business ventures has civil consequence
for the future business of the person
concerned in any event. Even if the
rules do not express so, it is an
SCA/6625/2011 29/98 JUDGMENT
elementary principle of natural justice
that parties affected by any order
should have right of being heard and
making representations against the
order. In that view of the matter, the
last portion of the order in so far as
it directs blacklisting of the
appellant in respect of future
contracts, cannot be sustained in law.”
(7) In Satwati Deswal v. State of Haryana
(supra) , the Supreme Court set aside the impugned
order of the High Court rejecting the petition on
the ground that the order of termination of the
appellant therein had been passed without issuing
a show cause notice, without initiating any
disciplinary proceedings by the authorities and
without affording an opportunity of hearing. The
relevant extract of the judgment is reproduced
hereinbelow:
“5. In our view, the High Court had fallen
in grave error in rejecting the writ
petition on the aforesaid ground. First,
such an order of termination was passed
without issuing any show­cause notice to the
appellant and without initiating any
disciplinary proceedings by the authorities
and without affording any opportunity of
hearing. It is well settled that a writ
petition can be held to be maintainable
SCA/6625/2011 30/98 JUDGMENT
even if an alternative remedy is available
to an aggrieved party where the court or the
tribunal lacks inherent jurisdiction or for
enforcement of a fundamental right; or if
there had been a violation of a principle of
natural justice; or where vires of the act
were in question.
(8) In Kilol v. Shelat v. Municipal Corporation
of City of Ahmedabad & Anr. (supra) , a Division
Bench of this Court was dealing with a challenge
to the prescription of “road line” by the
Commissioner of Ahmedabad Municipal Corporation,
and to the eviction notices issued under Section
213 of the Bombay Provincial Municipal
Corporations Act, 1949 (BPMC Act). The vires of
Section 210(1)(a) of the BPMC Act were also the
subject matter of challenge. While upholding
Section 210(1)(a) of the BPMC Act, the Division
Bench held as below:­
“29. It goes without saying that a citizen
who is being deprived of his valuable right
to property which though may not be
fundamental right continuous to be a
Constitutional right and which, is by now
recognized as a human right has at­least the
minimum right of hearing before such a
SCA/6625/2011 31/98 JUDGMENT
result is brought about. In a given case, he
may be able to point out to the authority
that proposed prescription of the street
line is either arbitrary or unjust or wholly
mala fide. Depriving the citizen of his
right to property without even the minimum
right of hearing cannot be countenanced. In
case of P.T. Munichikkanna Reddy and others
v. Revamma and others reported in (2007) 6
Supreme Court Cases 59, the Apex Court
observed that the right of property is now
considered to be not only a Constitutional
or statutory right but also a human right.
Similar observations were also made in case
of Lachhman Dass v. Jagar Ram and others
reported in (2007) 10 Supreme Court Cases
448.
30. It is by now well settled that without
affording opportunity of being heard, no
order adverse to a person can be passed.
Principles of natural justice require that
before taking action against the citizen, he
must have a right to be heard. Such
requirement of principles of natural
justice can be abridged or even totally shut
out. However, same can be done only by
specific statutory provisions or by
necessary implications. In other words, when
the statute is silent, principles of natural
justice can be read into it and unless a
statutory provision specifically or by
SCA/6625/2011 32/98 JUDGMENT
necessary implications dispenses with the
principles of natural justice, hearing must
be given before passing any adverse orders.
In case of State Govt. Houseless Harijan
Employees’ Association v. State of Karnataka
and others reported in (2001) 1 Supreme
Court Cases 610, the Apex Court observed
that the requirements of natural justice
will be read into statutory provisions
unless excluded expressly or by necessary
implication.”
(9) In Sudesh Kumar v. State of Haryana (supra) ,
the Supreme Court held as below:
“6. A reasonable opportunity of hearing
enshrined in Article 311(2) of the
Constitution would include an opportunity to
defend himself and establish his innocence
by cross­examining the prosecution witnesses
produced against him and by examining the
defence witnesses in his favour, if any.
This he can do only if inquiry is held where
he has been informed of the charges levelled
against him. In the instant case, the
mandate of Article 311(2) of the
Constitution has been violated depriving
reasonable opportunity of being heard to the
appellant.”
(10) In State of Mysore v. K. Manche Gowda
SCA/6625/2011 33/98 JUDGMENT
(supra) , the issue for determination was whether
the respondent had been granted reasonable
opportunity of hearing as per the mandate of
Article 311(2) of the Constitution of India. The
Supreme Court held that:
“7. Under Art. 311(2) of the Constitution,
as interpreted by this Court, a Government
servant must have a reasonable opportunity
not only to prove that he is not guilty of
the charges levelled against him, but also
to establish that the punishment proposed to
be imposed is either not called for or
excessive. The said opportunity is to be a
reasonable opportunity and, therefore, it is
necessary that the Government servant must
be told of the grounds on which it is
proposed to take such action: see the
decision of this Court in the State of Assam
v. Bimal Kumar Pandit, Civil Appeal No.832
of 1962 D/­ 12­2­1963:(AIR 1963 SC 1612). If
the grounds are not given in the notice, it
would be well nigh impossible for him to
predicate what is operating on the mind of
the authority concerned in proposing a
particular punishment: he would not be in a
position to explain why he does not deserve
any punishment at all or that the punishment
proposed is excessive…..”
SCA/6625/2011 34/98 JUDGMENT
(11) In Cantonment Board Dinapore v. Taramani
Devi (supra) , the Supreme Court considered the
scope of Article 14 of the Constitution of India
and upheld the decision of the High Court,
holding that no order which is prejudicial in
nature to him should be passed behind the back of
a person, especially when it entails civil
consequences.
19. The submissions made by the learned advocate for
respondent No.2 are to the effect that the
petitions may not be entertained, as alternative
statutory remedies are available to the
petitioner. The judgments cited on this point are
as under:
1) In U.P.State Spinning Co. Ltd. v. R.S.Pandey
& Another (supra) , the Supreme Court held as
below:
“20. In a catena of decisions it has been
held that writ petition under Article 226 of
the Constitution should not be entertained
when the statutory remedy is available under
the Act, unless exceptional circumstances
are made out.
21. In U.P. State Bridge Corpn. Ltd. v.
U.P. Rajya Setu Nigam S. Karamchari Sangh,
SCA/6625/2011 35/98 JUDGMENT
[2004] 4 SCC 268, it was held that when the
dispute relates to enforcement of a right or
obligation under the statute and specific
remedy is, therefore, provided under the
statute, the High Court should not deviate
from the general view and interfere under
Article 226 except when a very strong case
is made out for making a departure. The
person who insists upon such remedy can
avail of the process as provided under the
statute. To same effect are the decisions in
Premier Automobiles Ltd. v. Kamlekar
Shantaram Wadke, [1976] 1 SCC 496, Rajasthan
SRTC v. Krishna Kant, [1995] 5 SCC 75,
Chandrakant Tukaram Nikam v. Municipal
Corpn. of Ahmedabad [2002] 2 SCC 542 and in
Scooters India v. Vijai E. V. Eldred, [1998]
6 SCC 549.
22. In Rajasthan SRTC v. Krishna Kant
(Supra) it was observed as follows:
“A speedy, inexpensive and effective
forum for resolution of disputes arising
between workmen and their employers. The
idea has been to ensure that the workmen
do not get caught in the labyrinth of
civil courts with their layers upon
layers of appeals and revisions and the
elaborate procedural laws, which the
workmen can ill­afford. The procedure
followed by civil courts, it was
thought, would not facilitate a prompt
and effective disposal of these
disputes. As against this, the courts
and tribunals created by the Industrial
Disputes Act are not shackled by these
procedural laws nor is their award
SCA/6625/2011 36/98 JUDGMENT
subject to any appeals or revisions.
Because of their informality, the
workmen and their representatives can
themselves prosecute or defend their
cases. These forums are empowered to
grant such relief as they think just and
appropriate. They can even substitute
the punishment in many cases. They can
make and re­make the contracts,
settlement, wage structures and what
not. Their awards are no doubt amenable
to jurisdiction of the High Court under
Article 226 as also to the jurisdiction
of this Court under Article 32, but they
are extraordinary remedies subject to
several self­imposed constraints. It is,
therefore, always in the interest of the
workmen that disputes concerning them
are adjudicated in the forums created by
the Act and not in a civil court. That
is the entire policy underlying the vast
array of enactments concerning workmen.
This legislative policy and intendment
should necessarily weigh with the courts
in interpreting these enactments and the
disputes arising under them”.
23. In Basant Kumar Sarkar and Ors. v. Eagle
Rolling Mills Ltd. and Ors., [1964] 6 SCR
913 the Constitution Bench of this Court
observed as follows:
“It is true that the powers conferred on
the High Courts under Art. 226 are very
wide, but it is not suggested by Mr.
Chatterjee that even these powers can
take in within their sweep industrial
disputes of the kind which this
contention seeks to raise. Therefore,
without expressing any opinion on the
merits of the contention, we would
confirm the finding of the High Court
that the proper remedy which is
available to the appellants to ventilate
SCA/6625/2011 37/98 JUDGMENT
their grievances in respect of the said
notices and circulars is to take
recourse to Section 10 of the Industrial
Disputes Act, or seek relief, if
possible, under Sections 74 and 75 of
the Act.”
The above position was recently highlighted
in Hindustan Steel Works Construction Ltd.
v. Employees Union, (2005) 6 SCALE 430.
24. Accordingly, the conclusion is
inevitable that the High Court was not
justified in entertaining the writ petition.
Usually when writ petition is entertained
notwithstanding availability of alternative
remedy and issues are decided on merits,
this Court is slow to interfere merely on
the ground of availability of alternative
remedy. But the facts of the present case
have special features, which warrant
interference.”
2) In Uttaranchal Forest Development
Corporation & Anr. v. Jabar Singh & Others
(supra) , the Supreme Court has held as under:
“44. In the instant case, the workmen have
not made out any exceptional circumstances
to knock the door of the High Court
straightaway without availing the effective
alternative remedy available under the
SCA/6625/2011 38/98 JUDGMENT
Industrial Disputes Act. But the dispute
relates to enforcement of a right or
obligation under the statute and a specific
remedy is, therefore, provided under the
statute. The High Court should not deviate
from the general view and interfere under
Article 226 of the Constitution except when
a very strong case is made out for making a
departure. There are several decisions to
the same effect. The respondents have not
made out any strong case for making a
departure. Accordingly, the conclusion is
inevitable that the High Court was not
justified in entertaining the writ petition.
45. We are, therefore, of the opinion that
the writ petitioners (respondents herein)
who have not invoked the jurisdiction of the
Tribunal are not entitled to any relief in
the writ petitions. They are not entitled
for any benefits of reinstatement, backwages and continuity of service. ”
3) In Seth Chand Ratan v. Pandit Durga Prasad
(D) by LRS And Others (supra) , the Supreme Court
has held:
“13. Even otherwise, the view taken by the
Division Bench of the High Court for
repelling the objection of the appellant
regarding the maintainability of the writ
petition that an alternative remedy does not
SCA/6625/2011 39/98 JUDGMENT
divest the High Court of its powers to
entertain petitions under Articles 226 and
227 of the Constitution, has hardly any
application on the facts of the present
case. It has been settled by a long catena
of decisions that when a right or liability
is created by a statute, which itself
prescribes the remedy or procedure for
enforcing the right or liability, resort
must be had to that particular statutory
remedy before seeking the discretionary
remedy under Article 226 of the
Constitution. This rule of exhaustion of
statutory remedies is no doubt a rule of
policy, convenience and discretion and the
Court may in exceptional cases issue a
discretionary writ of certiorari. Where
there is complete lack of jurisdiction for
the officer or authority or Tribunal to take
action or there has been a contravention of
fundamental rights or there has been a
violation of rules of natural justice or
where the Tribunal acted under a provision
of law, which is ultra vires, then
notwithstanding the existence of an
alternative remedy, the High Court can
exercise its jurisdiction to grant relief.
In the present case, the alternative remedy
of challenging the judgment of the Court was
not before some other forum or Tribunal. On
the contrary, by virtue of Sub­section (3)
SCA/6625/2011 40/98 JUDGMENT
of Section 27 of the Act, the order passed
by the Court amounted to a decree against
which an appeal lay to the High Court. When
the party had statutory remedy of assailing
the order passed by the District Court by
filing an appeal to the High Court itself,
he could not bypass the said remedy and take
recourse to proceedings under Articles 226
and 227 of the Constitution. Such a course
of action may enable a litigant to defeat
the provisions of the Statute which may
provide for certain conditions for filing
the appeal, like limitation, payment of
court fee or deposit of some amount or
fulfilment of some other conditions for
entertaining the appeal.
14. For the reasons stated, we are clearly
of the opinion that the High Court committed
manifest error of law in entertaining and
allowing the writ petition filed by Pandit
Durga Prasad and, therefore, orders passed
by the learned Single Judge on 2.9.1994 and
by the Division Bench in letters patent
appeal on 7.3.1995 are liable to be set
aside.”
4) In Karnataka Chemical Industries And Others
v. Union of India And Others (supra) , it was
held that the petitioner ought to have resorted
to the statutory remedy as provided under the
SCA/6625/2011 41/98 JUDGMENT
statute and the appeal was dismissed on this
short ground alone.
5) Regarding the issue of sealing of Sonography
machines, the learned advocate for respondent
No.2 has relied upon District Panchayat &
Another v. Dr.Kaushik Babulal Shah (supra) ,
wherein the Division Bench, declined to accept
the contention raised on behalf of respondent
that no specific reason is recorded, and that the
authority has reason to believe that the
Sonography machine may furnish evidence of
commission of an offence punishable under the
PNDT Act.
6) In Appropriate Authority v. H.G.Thakkar Hari
X­Rays, Colour, Doppler Sonography & Ors.
(supra) , the Supreme Court, by order dated
09.12.2009, set aside the orders of the High
Court, permitting the Sonography machines to be
sold by making the following observations:­
“In this matter, it was clearly the
exclusive jurisdiction of the concerned
Magistrate since the question pertained to
SCA/6625/2011 42/98 JUDGMENT
the custody of the property seized in a
criminal offence investigation. There does
not appear to be any observations by the
High Court regarding its jurisdiction and
the only reason why the high Court seems to
have passed the order, that it did, is that
on earlier two occasions similar orders were
passed. We do not think that the High Court
had jurisdiction to pass any orders under
Article 226 as there appears to be a
criminal offence registered against the writ
petitioner under Sections 4(1), 5(2), 6(a)
and Rule 9(4), 10(1), 18(1), 23(1), and 9(6)
of the Act. It is also reported that a
charge­sheet has been filed on the basis of
investigations made by the Police as well as
the Appropriate Authority. Therefore, it was
a question of the custody, interim or
otherwise by the Appropriate Authority
involved in the Commission of the offence
then the exclusive jurisdiction would be
that of the concerned Magistrate.
The exercise of powers under Article 226
would be out of question. We, therefore,
quash the Appellate Order of the High Court
which has not considered the question of
jurisdiction and further hold that the writ
petition is not maintainable. The same is
accordingly disposed of, however, in the
circumstances, without any costs.”
SCA/6625/2011 43/98 JUDGMENT
7) The learned advocate for respondent No.2 has
also relied upon judgment in the case of Union of
India and another v. Deoki Nandan Aggarwal
(supra) , wherein, it has been held as below:
“It is not the duty of the Court either to
enlarge the scope of the legislation or the
intention of the legislature when the
language of the provision is plain and
unambiguous. The Court cannot rewrite,
recast or reframe the legislation for the
very good reason that it has no power to
legislate. The power to legislate has not
been conferred on the courts. The Court
cannot add words to a statute or read words
into it which are not there. Assuming there
is a defect or an omission in the words used
by the legislature the Court could not go to
its aid to correct or make up the
deficiency. Courts shall decide what the law
is and not what it should be. The Court of
course adopts a construction which will
carry out the obvious intention of the
legislature but could not legislate itself.
But to invoke judicial activism to set at
naught legislative judgment is subversive of
the constitutional harmony and comity of
instrumentalities.”
(Para 14)
8) Reference has also been made to a judgment of
SCA/6625/2011 44/98 JUDGMENT
this Court in Asmita R. Patel v. State of
Gujarat and Anr. (supra) wherein the Court
rejected the applications for quashing the
complaints made against the petitioner therein,
under the provisions of Section 482 of the Code
of Criminal Procedure. The relevant extract of
the judgment is reproduced hereinbelow:
“14. In the complaint it is provided to
punish the accused so as to restrict the
contravention of the provisions of the PNDT
Act/ Rules and ensure the compliance thereof
to meet the noble cause as envisaged by the
PNDT Act. It was sought to be argued on
behalf of the petitioners that alleged
breaches are technical one. It is true that
it might be that alleged breaches may be
seen to be technical one but provisions of
the Act and Rules which are mandatory are
required to be complied with strictly so as
to achieve ultimate goal of the Act. As
stated hereinabove, certain duties are cast
upon the persons conducting
ultrasonography / image scanning on a
pregnant women so as to check female
foeticide.”
20. It is, by now, a settled position of law that the
rule of exclusion of writ jurisdiction under
SCA/6625/2011 45/98 JUDGMENT
Article 226 of the Constitution of India, due to
availability of an alternative remedy, is more a
rule of discretion, rather than that of
compulsion. Normally, the Court would be slow in
entertaining a petition where an alternative
remedy is available. However, the restriction is
a self­imposed one and in certain contingencies,
a writ Court may still exercise its discretionary
jurisdiction, in spite of availability of an
alternative remedy.
21. In Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai and others – (1998)8 SCC 1, the
Supreme Court has held as below:
“14. The power to issue prerogative writs
under Article 226 of the Constitution is
plenary in nature and is not limited by any
other provision of the Constitution. This
power can be exercised by the High Court not
only for issuing writs in the nature of
habeas corpus, mandamus, prohibition, quo
warranto and certiorari for the enforcement
of any of the Fundamental Rights contained
in Part III of the Constitution but also for
“any other purpose”.
15. Under Article 226 of the Constitution,
SCA/6625/2011 46/98 JUDGMENT
the High Court, having regard to the facts
of the case, has a discretion to entertain
or not to entertain a writ petition. But the
High Court has imposed upon itself certain
restrictions one of which is that if an
effective and efficacious remedy is
available, the High Court would not normally
exercise its jurisdiction. But the
alternative remedy has been consistently
held by this Court not to operate as a bar
in at least three contingencies, namely,
where the writ petition has been filed for
the enforcement of any of the Fundamental
Rights or where there has been a violation
of the principle of natural justice or where
the order or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged. There is a plethora of case­law
on this point but to cut down this circle of
forensic whirlpool, we would rely on some
old decisions of the evolutionary era of the
constitutional law as they still hold the
field.”
22. In the present cases, the petitioner claims that
the principles of natural justice have been
violated by the respondents, both while sealing
the Sonography machines, and in suspending the
PNDT registration of his Clinic. On this ground,
SCA/6625/2011 47/98 JUDGMENT
it has been urged that this Court may exercise
its discretionary jurisdiction, in spite of
availability of alternative remedies under Rule
19 of the Rules regarding sealing, and Section 21
of the PNDT Act, regarding suspension of
registration.
23. The issue that arises for consideration by this
Court is whether there has been a violation of
the principles of natural justice while sealing
the Sonography machines of the petitioner, and
while suspending the registration of his Clinic,
and whether this Court should exercise its
discretionary jurisdiction on this ground despite
the availability of alternative remedies.
24. It would be appropriate to first deal with
contention regarding violation of the principles
of natural justice, in the context of sealing of
the Sonography machines. To this end, it would be
necessary to examine the Scheme of the PNDT Act.
25. The Preamble of the PNDT Act states that it is:
“An Act to provide for the prohibition of
sex selection, before or after conception,
and for regulation of pre­natal diagnostic
techniques for the purposes of detecting
SCA/6625/2011 48/98 JUDGMENT
genetic abnormalities or metabolic disorders
or chromosomal abnormalities or certain
congenital malformations or sex­linked
disorders and for the prevention of their
misuse for sex determination leading to
female foeticide and for matters connected
therewith or incidental thereto.”
The Statement of Objects and Reasons reads as
below:­
“It is proposed to prohibit pre­natal
diagnostic techniques for determination of
sex of the foetus leading to female
foeticide. Such abuse of techniques is
discriminatory against the female sex and
affects the dignity and status of women. A
legislation is required to regulate the use
of such techniques and to provide deterrent
punishment to stop such inhuman act.”
In order to provide for:
(i) prohibition of the misuse of prenatal diagnostic techniques for
determination of sex of foetus, leading to
female foeticide;
(ii) prohibition of advertisement of
pre­natal diagnostic techniques for
detection or determination of sex;
(iii) permission and regulation of the
SCA/6625/2011 49/98 JUDGMENT
use of pre­natal diagnostic techniques for
the purpose of detection of specific genetic
abnormalities or disorders;
(iv) permitting the use of such
techniques only under certain conditions by
the registered institutions; and
(v) punishment for violation of the
provisions of the proposed legislation;
The PNDT Act came into force on 01.01.1996. A few
relevant definitions may be referred to.
“Genetic Clinic” has been defined in Section
2(d), as under:
“”Genetic Clinic” means a clinic, institute,
hospital, nursing home or any place, by
whatever name called, which is used for
conducting pre­natal diagnostic procedures;
Explanation­ For the purposes of this
clause, ‘Genetic Clinic’ includes a vehicle,
where ultrasound machine or imaging machine
or scanner or other equipment capable of
determining sex of the foetus or a portable
equipment which has the potential for
detection of sex during pregnancy or
selection of sex before conception, is
used.”
Section 2(i) reads thus:
SCA/6625/2011 50/98 JUDGMENT
“”pre­natal diagnostic procedures” means all
gynaecological or obstetrical or medical
procedures such as ultrasonography,
foetoscopy, taking or removing samples of
amniotic fluid, chorionic villi, embryo,
blood or any other tissue or fluid of a man,
or of a woman before or after conception,
for being sent to a Genetic Laboratory or
Genetic Clinic for conducting any type of
analysis or pre­natal diagnostic tests for
selection of sex before or after
conception.”
Section 2(j) states that:
“”pre­natal diagnostic techniques” includes
all pre­natal diagnostic procedures and prenatal diagnostic tests.”
Section 2(k) defines “pre­natal diagnostic test”
as below:
“”pre­natal diagnostic test” means
ultrasonography or any test or analysis of
amniotic fluid, chorionic villi, blood or
any tissue or fluid of a pregnant woman or
conceptus conducted to detect genetic or
metabolic disorders or chromosomal
abnormalities or congenital anomalies or
haemoglobinopathies or sex­linked diseases;”
SCA/6625/2011 51/98 JUDGMENT
Section 3 of the PNDT Act provides for regulation
of Genetic Counselling Centres, Genetic
Laboratories and Genetic Clinics, and reads as
below:
“3. Regulation of Genetic Counselling
Centres, Genetic Laboratories and Genetic
Clinics.­ On and from the commencement of
this Act,­
(1) no Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic unless
registered under this Act, shall conduct or
associate with, or help in, conducting
activities relating to pre­natal diagnostic
techniques;
(2) no Genetic Counselling Centre or Genetic
Laboratory or Genetic Clinic shall employ or
cause to be employed or take services of any
person, whether on honorary basis or on
payment who does not possess the
qualifications as may be prescribed;
(3) no medical geneticist, gynaecologist
paediatrician registered medical
practitioner or any other person shall
conduct or cause to be conducted or aid in
conducting by himself or through any other
person, any pre­natal diagnostic techniques
at a place other than a place registered
under this Act.”
SCA/6625/2011 52/98 JUDGMENT
Section 3A prohibits sex selection and states
thus:
“3A. Prohibition of sex­selection.­ No
person, including a specialist or a team of
specialists in the field of infertility,
shall conduct or cause to be conducted or
aid in conducting by himself or by any other
person, sex selection on a woman or a man or
on both or on any tissue, embryo, conceptus,
fluid or gametes derived from either or both
of them.”
Section 4 is one of the most important provisions
in the PNDT Act, and reads as below:
“4. Regulation of pre­natal diagnostic
techniques.­ On and from the commencement of
this Act,­­
(1) no place including a registered Genetic
Counselling Centre or Genetic Laboratory or
Genetic Clinic shall be used or caused to be
used by any person for conducting pre­natal
diagnostic techniques except for the
purposes specified in clause (2) and after
satisfying any of the conditions specified
in clause (3);
(2) No pre­natal diagnostic techniques shall
be conducted except for the purposes of
detection of any of the following
abnormalities, namely:­­
SCA/6625/2011 53/98 JUDGMENT
(i) Chromosomal abnormalities;
(ii) Genetic metabolic diseases;
(iii) Haemoglobinopathies;
(iv) Sex­linked genetic diseases;
(v) Congenital anomalies;
(vi) Any other abnormalities or diseases as
may be specified by the Central Supervisory
Board;
(3) no pre­natal diagnostic techniques shall
be used or conducted unless the person
qualified to do so is satisfied for reasons
to be recorded in writing that any of the
following conditions are fulfilled,
namely:­­
(i) Age of the pregnant woman is above
thirty­five years;
(ii) The pregnant woman has undergone of two
or more spontaneous abortions or foetal
loss;
(iii) The pregnant woman had been exposed to
potentially teratogenic agents such as
drugs, radiation, infection or chemicals;
(iv) The pregnant woman or her spouse has a
family history of mental retardation or
physical deformities such as, spasticity or
any other genetic disease;
(v) Any other condition as may be specified
by the Board;
Provided that the person conducting
ultrasonography on a pregnant woman shall
keep complete record thereof in the clinic
SCA/6625/2011 54/98 JUDGMENT
in such manner, as may be prescribed, and
any deficiency or inaccuracy found therein
shall amount to contravention of provisions
of section 5 or section 6 unless contrary is
proved by the person conducting such
ultrasonography;
(4) No person including a relative or
husband of the pregnant woman shall seek or
encourage the conduct of any pre­natal
diagnostic techniques on her except for the
purposes specified in clause (2);
(5) No person including a relative or
husband of a woman shall seek or encourage
the conduct of any sex­selection technique
on her or him or both.”
(emphasis supplied)
Section 5 is relevant in the context of the
issues arising in the petition and is reproduced
below:
“5. Written consent of pregnant woman and
prohibition of communicating the sex of
foetus.­ (1) No person referred to in clause
(2) of section 3 shall conduct the pre­natal
diagnostic procedures unless—
(a) He has explained all known side and
after effects of such procedures to the
pregnant woman concerned;
(b) He has obtained in the prescribed form
her written consent to undergo such
procedures in the language which she
SCA/6625/2011 55/98 JUDGMENT
understands; and
(c) A copy of her written consent obtained
under clause (b) is given to the pregnant
woman.
(2) No person including the person
conducting pre­natal diagnostic procedures
shall communicate to the pregnant woman
concerned or her relatives or any other
person the sex of the foetus by words, signs
or in any other manner.”
Section 6 provides that no pre­natal diagnostic
techniques, including Sonography, can be
conducted for the purpose of determining the sex
of the foetus and that no person shall conduct or
cause to be conducted any pre­natal diagnostic
techniques including ultrasonography for the
purpose of determining the sex of a foetus.
Section 17 provides for appointment of
Appropriate Authority and the Advisory Committee
for the State and the Central Government and
Section 17A delineates the powers of the
Appropriate Authorities in the State.
Section 18 pertains to registration of Genetic
SCA/6625/2011 56/98 JUDGMENT
Counselling Centres, Genetic Laboratories or
Genetic Clinics and sub­section (1) of Section
18, which is relevant, is reproduced hereinbelow:
“18. Registration of Genetic Counselling
Centres, Genetic Laboratories or Genetic
Clinics. ­ (1) No person shall open any
Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic, including
clinic, laboratory or center having
ultrasound or imaging machine or scanner or
any other technology capable of undertaking
determination of sex of foetus and sex
selection, or render services to any of
them, after the commencement of the Prenatal Diagnostic Techniques (Regulation and
Prevention of Misuse) Amendment Act, 2002
unless such Centre, Laboratory or Clinic is
duly registered under the Act.”
Section 19 provides for grant of Certificate of
registration by the Appropriate Authority after
holding an inquiry and satisfying itself that the
applicant has complied with the requirements of
the PNDT Act and the Rules.
Section 20 pertains to the cancellation or
suspension of registration and reads as below:
SCA/6625/2011 57/98 JUDGMENT
“20. Cancellation or suspension of
registration.­ (1) The Appropriate Authority
may suo­motu, 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, 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
sub­sections (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 sub­section (1). ”
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Section 21 provides for an alternative remedy of
appeal in case of suspension or cancellation of
registration and reads as below:
“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.”
Section 23 provides for offences and penalties
and is reproduced hereinbelow:
“23. Offences and penalties.­ (1) Any
medical geneticist, gynaecologist,
registered medical practitioner or any
person who owns a Genetic Counselling
Centre, a Genetic Laboratory or a Genetic
Clinic or is employed in such a Centre,
Laboratory or Clinic and renders his
professional or technical services to or at
SCA/6625/2011 59/98 JUDGMENT
such a Centre, Laboratory or Clinic, whether
on an honorary basis or otherwise, and who
contravenes any of the provisions of this
Act or rules made thereunder shall be
punishable with imprisonment for a term
which may extend to three years and with
fine which may extend to ten thousand rupees
and on any subsequent conviction, with
imprisonment which may extend to five years
and with fine which may extend to fifty
thousand rupees.
(2) The name of the registered medical
practitioner shall be reported by the
Appropriate Authority to the State Medical
Council concerned for taking necessary
action including suspension of the
registration if the charges are framed by
the court and till the case is disposed of
and on conviction for removal of his name
from the register of the Council for a
period of five years for the first offence
and permanently for the subsequent offence.
(3) Any person who seeks the aid of a
Genetic Counselling Centre, Genetic
Laboratory, Genetic Clinic or ultrasound
clinic or imaging clinic or of a medical
geneticist, gynaecologist, sonologist or
imaging specialist or registered medical
practitioner or any other person for sex
selection or for conducting prenatal
diagnostic techniques on any pregnant women
SCA/6625/2011 60/98 JUDGMENT
for the purposes other than those specified
in subsection (2) of section 4, he shall be
punishable with imprisonment for a term
which may extend to three years and with
fine which may extend to fifty thousand
rupees for the first offence and for any
subsequent offence with imprisonment which
may extend to five years and with fine which
may extend to one lakh rupees.
(4) For the removal of doubts, it is hereby
provided, that the provisions of sub­section
(3) shall not apply to the woman who was
compelled to undergo such diagnostic
techniques or such selection.”
Section 29 mandates that all records, charts,
forms, reports, consent letters and all the
documents required to be maintained under the
PNDT Act and Rules shall be preserved for a
period of two years or for such period as may be
prescribed. In case of criminal or other
proceedings, the records and other documents
shall be preserved till the final disposal of
such proceedings.
Section 30 confers power to search and seize
records. It states thus:
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“30. Power to search and seize records, etc.
– (1) If the Appropriate Authority has
reason to believe that an offence under this
Act has been or is being committed at any
Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic or any other
place, such Authority or any officer
authorised 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 such authority or
officer considers necessary, such Genetic
Counselling Centre, Genetic Laboratory or
Genetic Clinic or any other place and
examine any record, register, document,
book, pamphlet, advertisement or any other
material object found therein and seize and
seal the same if such Authority or officer
has reason to believe that it may furnish
evidence of the commission of an office
punishable under this Act.
(2) The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) relating to
searches and seizures shall, so far as may
be, apply to every search or seizure made
under this Act.”
(emphasis supplied)
Section 32 confers upon the State Government,
powers to make rules for carrying out the
SCA/6625/2011 62/98 JUDGMENT
provisions of the Act, including “the manner in
which the seizure of documents, records, objects,
etc., shall be made and the manner in which
seizure list shall be prepared and delivered to
the person from whose custody such documents,
records or objects were seized under sub­section
(1) of section 30”.
26. In exercise of the aforesaid powers under Section
32, the Central Government has framed the Rules.
Rule 9 provides for maintenance and preservation
of records and is extracted hereinbelow:
“9. Maintenance and preservation of
records.­ (1) Every Genetic Counselling
Centre, Genetic Laboratory, Genetic Clinic,
Ultrasound Clinic and Imaging Centre shall
maintain a register showing, in serial
order, the names and addresses of the men or
women given genetic counseling, subjected to
pre­natal diagnostic procedures or pre­natal
diagnostic tests, the names of their spouses
or fathers and the date on which they first
reported for such counseling, procedure or
test.
(2) The record to be maintained by every
Genetic Counselling Centre, in respect of
each woman counselled shall be as specified
in Form D.
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(3) The record to be maintained by every
Genetic Laboratory, in respect of each man
or woman subjected to any pre­natal
diagnostic procedure/technique/test, shall
be as specified in Form E.
(4) The record to be maintained by every
Genetic Clinic, in respect of each man or
woman subjected to any pre­natal diagnostic
procedure/technique/test, shall be as
specified in Form F.
(5) The Appropriate Authority shall maintain
a permanent record of applications for grant
or renewal of certificate of registration as
specified in Form H. Letters of intimation
of every change of employee, place, address
and equipment installed shall also be
preserved as permanent records.
(6) All case related records, forms of
consent, laboratory results, microscopic
pictures, sonographic plates or slides,
recommendations and letters shall be
preserved by the Genetic Counselling Centre,
Genetic Laboratory, Genetic Clinic,
Ultrasound Clinic or Imaging Centre for a
period of two years from the date of
completion of counseling, prenatal
diagnostic procedure or pre­natal diagnostic
test, as the case may be. In the event of
any legal proceedings, the records shall be
preserved till the final disposal of legal
proceedings, or till the expiry of the said
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period of two years, whichever is later.
(7) In case the Genetic Counselling Centre
or Genetic Laboratory, Genetic Clinic,
Ultrasound Clinic or Imaging Centre
maintains records on computer or other
electronic equipment, a printed copy of the
record shall be taken and preserved after
authentication by a person responsible for
such record.
(8) Every Genetic Counselling Centre,
Genetic Laboratory, Genetic Clinic,
Ultrasound Clinic and Imaging Centre shall
send a complete report in respect of all
pre­conception or pregnancy related
procedures/techniques/tests conducted by
them in respect of each month by 5th day of
the following month to the concerned
Appropriate Authority. ”
Sub­rule (1) of Rule 11 provides that every
Genetic Counselling Centre, Genetic Laboratory
and Genetic Clinic, Ultrasound Clinic, Imaging
Centre, nursing home, hospital, institute or any
other place where any of the machines or
equipments capable of performing any procedure,
technique or pre­natal determination of sex or
selection of sex before or after conception is
used, shall afford all reasonable facilities for
SCA/6625/2011 65/98 JUDGMENT
inspection of the place, equipment and records to
the Appropriate Authority or to any other person
authorized by the Appropriate Authority in this
behalf.
Sub­rule (2) of Rule 11 states as below:
“11(2) The Appropriate Authority or the
officer authorized 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 the
organizations may be released if such
organization pays penalty equal to five
times of the registration fee to the
Appropriate Authority concerned and give an
undertaking that it shall not undertake
detection of sex of foetus or selection of
sex before or after conception”.
Rule 12 lays down the procedure for search and
seizure as under:
“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,
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Genetic Clinic, Imaging Centre or
Ultrasound Clinic in the presence of two or
more independent witnesses for the purposes
of search and examination of any record,
register, document, book, pamphlet,
advertisement, or any other material object
found therein and seal and seize the same if
there is reason to believe that it may
furnish evidence of commission of an offence
punishable under the Act.
Explanation: ­ In these Rules­
(1) ‘Genetic Laboratory/Genetic
Clinic/Genetic Counselling Centre’ would
include an ultrasound center/ imaging center
/ nursing home/ hospital /institute or 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 pre­natal 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. ”
(emphasis supplied)
Rule 19 provides for the remedy of appeal and
reads as below:
“19. Appeals.­ (1) Anybody aggrieved by the
decision of the Appropriate Authority at
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sub­district level may appeal to the
Appropriate Authority at district level
within 30 days of the order of the subdistrict level Appropriate Authority.
(2) Anybody aggrieved by the decision of the
Appropriate Authority at district level may
appeal to the Appropriate Authority at
State/UT level within 30 days of the order
of the District level Appropriate Authority.
(3) Each appeal shall be disposed of by the
District Appropriate Authority or by the
State/Union Territory Appropriate Authority,
as the case may be, within 60 days of its
receipt.
(4) If an appeal is not made within the time
as prescribed under sub­rule (1), (2) or
(3), the Appropriate Authority under that
sub­rule may condone the delay in case he/
she is satisfied that appellant was
prevented for sufficient cause from making
such appeal.”
27. A perusal of the Scheme of the PNDT Act and the
Rules framed thereunder makes it clear that no
pre­natal diagnostic techniques shall be
conducted, except for the purpose of detection of
abnormalities as mentioned in sub­section (2) of
Section 4 of the PNDT Act. A pre­natal diagnostic
technique includes all pre­natal diagnostic
SCA/6625/2011 68/98 JUDGMENT
procedures and pre­natal diagnostic tests as per
section 2(j) of the Act and a pre­natal
diagnostic test would include an ultra­sonography
test as per Section 2(k). The power of search and
seizure is conferred by Section 30 and the
procedure to be followed during search and
seizure is delineated in Rule 12 of the Rules.
Section 30 provides that if the Appropriate
Authority has reason to believe that an offence
under the Act has been, or is being committed, at
any Genetic Counselling Center, Genetic
Laboratory, Genetic Clinic or any other place,
such authority or any officer authorized in this
behalf may, subject to the Rules, enter and
search at all reasonable times, such Genetic
Counselling Centre, Genetic Laboratory, Genetic
Clinic or any other place and examine any record,
register, document, book, pamphlet,
advertisement, or any other material object found
therein and seize and seal the same if such
Authority or officer has reason to believe that
it may furnish evidence of the commission of an
offence punishable under the Act. Explanation
SCA/6625/2011 69/98 JUDGMENT
(1) to Rule 12 states that “material object”
would include records, machines and equipments
and explanation (3) to Rule 12 states that
`seize’ and `seizure’ would include `seal’ and
`sealing’ respectively. A combined reading of
Section 30 of the Act and Rule 12 of the Rules
makes it clear that the machine and equipment
found at the Clinic that is being searched can be
seized and sealed if the Appropriate Authority
has reason to believe that it may furnish
evidence of the commission of an offence
punishable under the PNDT Act. The purpose behind
seizure and sealing of a machine or equipment (in
the present case, Sonography machines of the
petitioner) is to furnish evidence of commission
of an offence punishable under the Act. As per
section 23, any person mentioned therein, who
contravenes any of the provisions of the PNDT Act
or Rules, shall be punishable with imprisonment
for a term which may extend to three years and
with fine, as provided in the Act. There is no
specific provision in the PNDT Act contemplating
the issuance of a show cause notice before
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seizure or sealing of document and other
equipment from the Genetic Clinic, Genetic
Laboratory or Genetic Counselling Centre, as the
case may be. The power of sealing of the
Sonography machine is conferred upon the
Appropriate Authority and is to be exercised if
it believes that the machine may furnish evidence
of the commission of an offence. Sealing is not
stated to be a penalty for contravention of any
provision of the PNDT Act or Rules though it may
be a consequential action. There is no express
provision in the Act or Rules that provides for
issuance of a show cause notice before drawing
the Panchnama or sealing the machines. A
contention has been raised by the learned
advocate for the petitioner that the principles
of natural justice should be read into the
provisions of the Act and Rules, and it would be
obligatory on the part of the Appropriate
Authority to issue a show cause notice to the
petitioner and grant him an opportunity of
hearing, before sealing the Sonography machines.
28. At this stage, reference may fruitfully be made
SCA/6625/2011 71/98 JUDGMENT
to certain decisions of the Supreme Court with
regard to the plea of violation of the principles
of natural justice.
(1) In Union of India v. Col. J.N.Sinha And
Another reported in 1970(2) SCC 458, the issue
before the Supreme Court involved the compulsory
retirement of the petitioner therein under
Fundamental Rule (F.R.) 56(j) which, in terms,
does not require that any opportunity should be
given to the concerned Government servant, to
show cause against his compulsory retirement.
Admittedly, no opportunity was granted to the
said Government servant to show cause against his
compulsory retirement. The High Court held that
this amounted to a contravention of the
principles of natural justice. In this context,
the Supreme Court held that:
“8. Fundamental Rule 56(j) in terms does not
require that any opportunity should be given
to the, concerned government servant ’to
show cause against his compulsory
retirement. A government ­servant serving
under the Union of India holds his office at
the pleasure of the President as provided in
Art. 310 of the Constitution. But this
SCA/6625/2011 72/98 JUDGMENT
“pleasure” doctrine is subject to the rules
or law made under Art. 309 as well as to the
conditions prescribed under Art. 311. Rules
of natural justice are not embodied rules
nor can they be elevated to the position of
fundamental rights. As observed by this
Court in A.K.Kraipak and Ors. v. Union of
India [(1969)2 SCC 262] “the aim of rules of
natural justice is to secure justice or to
put it negatively to prevent miscarriage of
justice. These rules can operate only in
areas not covered by any law validly made.
In other words they do not supplant the law
but supplement it.” It is true that if a
statutory provision can be read consistently
with the principles of natural justice, the
courts should do so because it must be
presumed that the Legislatures and the
statutory authorities intend to act in
accordance with the principles of natural
justice. But if on the other hand a
statutory provision either specifically or
by necessary implication excludes the
application of any or all the principles of
natural justice then the court cannot ignore
the mandate of the Legislature or the
statutory authority and read into the
concerned provision the principles of
natural justice. Whether the exercise of a
power conferred should be made in accordance
with any of the principles of natural
SCA/6625/2011 73/98 JUDGMENT
justice or not depends upon the express
words of the provision conferring the power,
the nature of the power conferred, the
purpose for which it is conferred and the
effect of the exercise of that power. ”
(emphasis supplied)
(2) The above position of law has been reiterated
by the Supreme Court in its recent judgment in
the case of Automotive Tyre Manufacturers
Association v. Designated Authority And Others
reported in (2011)2 SCC 258.
“80. It is thus, well settled that unless a
statutory provision, either specifically or
by necessary implication excludes the
application of principles of natural
justice, because in that event the Court
would not ignore the legislative mandate,
the requirement of giving reasonable
opportunity of being heard before an order
is made, is generally read into the
provisions of a statute, particularly when
the order has adverse civil consequences
which obviously cover infraction of
property, personal rights and material
deprivations for the party affected. The
principle holds good irrespective of whether
the power conferred on a statutory body or
Tribunal is administrative or quasijudicial. It is equally trite that the
SCA/6625/2011 74/98 JUDGMENT
concept of natural justice can neither be
put in a strait­jacket nor is it a general
rule of universal application.
81. Undoubtedly, there can be exceptions to
the said doctrine. As stated above, the
question whether the principle has to be
applied or not is to be considered bearing
in mind the express language and the basic
scheme of the provision conferring the
power; the nature of the power conferred and
the purpose for which the power is conferred
and the final effect of the exercise of that
power. It is only upon a consideration of
these matters that the question of
application of the said principle can be
properly determined. (See: Union of India
v. Col.J.N. Sinha [(1970)2 SCC 458] ”
(3) It is well­settled that the principles of
natural justice cannot be put in a straitjacket,
and their applicability would depend upon the
context and facts and circumstances of each case.
In this regard, the Supreme Court has held, in
Bar Council of Kerala v. High Court of Kerala
reported in (2004)6 SCC 311, thus:
“45. Principles of natural justice are
required to be observed by a court or
tribunal before a decision is rendered
involving civil consequences. They may only
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in certain situations be read into Article
14 of the Constitution of India when an
order is made in violation of the rules of
natural justice. Principles of natural
justice, however, cannot be stretched too
far. Their application may be subject to the
provisions of a statute or statutory rule.”
(emphasis supplied)
(4) In Divisional Manager, Plantation Division,
Andaman & Nicobar Islands v. Munnu Barrick And
Others reported in (2005)2 SCC 237, the Supreme
Court has held as below:
“17. The principles of natural justice cannot
be put in a strait­jacket formula. It must
be viewed with flexibility. In a given case,
where a deviation takes place as regard
compliance of the principles of natural
justice, the Court may insist upon proof of
prejudice before setting aside the order
impugned before it. [See Bar Council of
India v. High Court of Kerala, (2004) 6 SCC
311].
18. The Presiding Officer, Labour Court, as
noticed hereinbefore, committed a manifest
error in invoking Article 311 of the
Constitution of India in the instant case.
19. In Karunakar [(1993)4 SCC 727], this
Court has clearly held that the employee
must show sufferance of prejudice by non
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obtaining a copy of the enquiry report.
20. This Court in Canara Bank [(2003)4 SCC
557] while following Karunakar (supra) held:
(SCC p.572, para 19)
“19. Concept of natural justice has
undergone a great deal of change in
recent years. Rules of natural justice
are not rules embodied always expressly
in a statute or in rules framed
thereunder. They may be implied from the
nature of the duty to be performed under
a statute. What particular rule of
natural justice should be implied and
what its context should be in a given
case must depend to a great extent on
the fact and circumstances of that case,
the frame­work of the statute under
which the enquiry is held. The old
distinction between a judicial act and
an administrative act has withered away.
Even an administrative order which
involves civil consequences must be
consistent with the rules of natural
justice. The expression “civil
consequences” encompasses infraction of
not merely property or personal rights
but of civil liberties, material
deprivations, and non­pecuniary damages.
In its wide umbrella comes everything
that affects a citizen in his civil
life.””
(emphasis supplied)
(5) In Ganesh Santa Ram Sirur v. State Bank of
India And Another reported in (2005)1 SCC 13,
the Supreme Court has held as below:
“31. Mr. Salve invited our attention to Para
17 of the Judgment in State Bank of Patiala
v. S.K. Sharma, 1996(3) SCC 364, which deals
with the opinion of the House of Lords in
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the United Kingdom. He also drew our
attention to S.L. Kapoor v. Jagmohan,
(1980)4 SCC 379 and Managing Director ECIL
vs B. Karunakar, 1993 (4) SCC 727 in SCC
para 25, 26 and 28. The decisions relied on
and cited above make one thing clear,
namely, principles of natural justice cannot
be reduced to any hard and fast formulae and
as said in Russel v. Duke of Norfold (1949)
1 All ER 109 (CA), these principles cannot
be put in a strait jacket. Their
applicability depends upon the context and
the facts and circumstances of each case.
The objective is to ensure a fair hearing, a
fair deal to a person whose rights are going
to be affected. In our opinion, the approach
and test adopted in Karunakar case should
govern all cases where the complaint is not
that there was no hearing, no notice, no
opportunity and no hearing but one of not
affording a proper hearing that is adequate
or a full hearing or violation of a
procedural rule or requirement governing the
enquiry. ”
29. From the above decisions, it emerges that where
there is no express provision for grant of an
opportunity of hearing, the applicability of the
principles of natural justice would depend upon
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the express language of the statute, its basic
scheme, nature of power, the purpose for which
the power is conferred and the effect of the
exercise of such power. The language of the
statute may expressly or, by necessary
implication, bar the applicability of the
principles of natural justice. In short, the
principles of natural justice cannot be stretched
too far, and their application may be subject to
the particular provisions of the statute and the
object for which the statute has been enacted.
30. As has been discussed hereinabove, there is no
express provision in the PNDT Act or the Rules
for issuance of a show cause notice before making
a Panchnama and sealing the Sonography machines
or seizing documents or other equipment from the
Genetic Clinic concerned. Section 30 makes it
clear that the power to seize any document,
record, register, book, pamphlet, advertisement
or any other material object which has been found
( including machines) is to be exercised if the
Appropriate Authority has a reason to believe
that it may furnish evidence of a commission of
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an offence under the PNDT Act. The Sonography
machines of the petitioner have been sealed, and
a criminal case has been registered against him.
It would, therefore, mean that the Appropriate
Authority had reason to believe that the said
machines may furnish evidence of commission of an
offence under the PNDT Act. In such
circumstances, when the sealing of the machines
has been carried out with a view to collect
evidence, the submission made by the learned
advocate for the petitioner that an opportunity
to show cause should have been afforded to the
petitioner before drawing the Panchnama or
sealing the machines, is not acceptable.
31. Sub­section (2) of Section 30 stipulates that the
provisions of the Code of Criminal Procedure,
1973, relating to searches and seizures shall
apply to every search and seizure made under the
PNDT Act. The object and scope of Section 100 of
the Code is that it provides for the right of
free ingress in case of closed premises, on
production of a warrant of search by the Police
officer and it seeks to ensure that searches are
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conducted fairly. For the said purpose, two
independent and respectable witnesses of the
locality should be present. When a search is
conducted under this provision, evidence can be
given regarding the thing seized in the course of
the search. The same principles would apply to
the power to search and seizure of records,
vested upon the Appropriate Authority under
Section 30 of the PNDT Act, and Rule 12 of the
Rules. Taking into consideration the object and
scope of section 30 of the Act read with Rule 12
of the Rules, which is to exercise the power of
sealing and seizure in order to furnish evidence
of commission of an offence, it cannot be said
that a prior show cause notice should be given
before conducting such search and seizure in
order to comply with the principles of natural
justice, as to do so would not be in consonance
with the object and purpose for which the said
provisions have been enacted. It was open to the
Legislature to have provided for an opportunity
of hearing before sealing the machines or seizing
documents and other equipment, had this been the
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intention. There is a provision for issuance of a
show cause notice under Section 20(1) and (2) of
the Act before suspending or cancellation of the
registration of the Clinic, but there is no such
provision regarding sealing of machines. The
omission appears to be a conscious legislative
intention, considering that sealing of machines
is to be carried out if the Appropriate Authority
considers that it may furnish evidence of the
commission of an offence. Keeping in view the
Scheme of the PNDT Act, the purpose for which the
Sonography machines are sealed and the fact that
there is no express provision contemplating the
issuance of a prior show cause notice, it is
clear that the applicability of principles of
natural justice has been barred by necessary
implication. In view of the above, in my
considered view, there has been no violation of
the principles of natural justice while drawing
the Panchnama and sealing the Sonography machines
of the petitioner.
32. Insofar as the submission regarding violation of
the fundamental rights of the petitioner under
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Article 19(1)(g) of the Constitution is
concerned, it has to be kept in mind that the
Sonography machines have been sealed in order to
furnish evidence in the criminal case filed
against the petitioner. It, therefore, cannot be
said that the petitioner has been deprived of his
right to carry on his profession, as the
petitioner is bound to conduct his profession in
accordance with the provisions of the PNDT Act.
Any consequences arising out of the alleged
violations of the said statute would not amount
to violation of the fundamental rights of the
petitioner under Article 19(1)(g) of the
Constitution.
33. Regarding the submission that no reasoned order
has been passed before sealing the Sonography
machines, it can only be said, at the cost of
repetition, that it has been resorted to in order
to furnish evidence of commission of an offence
in the criminal case filed against the
petitioner. There is no requirement of passing a
reasoned order before taking such action, in the
context of the provisions of Section 30 of the
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PNDT Act and Rule 12 of the Rules.
34. It is not disputed that an alternative remedy is
available to the petitioner, to agitate his
grievance regarding sealing of the machines, as
provided under Rule 19 of the Rules. Sub­rule (4)
of Rule 19 empowers the Appropriate Authority to
condone the delay in case he/ she is satisfied
that the appellant was prevented by sufficient
cause from making such appeal within time.
35. As already noted hereinabove, in Whirlpool
Corporation v. Registrar of Trade Marks, Mumbai
and others (supra) , the Supreme Court has
considered three contingencies which would not
operate as a bar in the exercise of jurisdiction
by the High Court under Article 226 of the
Constitution of India in spite of availability of
an alternative remedy. The relevant extract of
the judgment has already been reproduced earlier.
36. In view of the detailed discussion and conclusion
arrived at by this Court that there is no
provision in the PNDT Act requiring prior
issuance of a show cause notice before sealing
the Sonography machines in exercise of power
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conferred under Section 30 of the PNDT Act read
with Rule 12 of the Rules, and that the
application of the principles of natural justice
is impliedly barred, considering the object and
purpose of the Act, and nature of power and
intention of the Legislature, as reflected in the
Scheme of the Act, in my considered view, the
contingency regarding violation of the principles
of natural justice does not arise, as stated in
Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai and others (supra), so as to
persuade this Court to exercise jurisdiction in
spite of availability of an alternative remedy.
37. It is relevant to note that the nature and object
of exercise of power under Section 30 and Rule 12
is for furnishing evidence of commission of an
offence under the PNDT Act. Keeping this purpose
in view, the prior issuance of a show cause
notice would defeat the very purpose for which
the power is to be exercised, and may result in
prejudice in the criminal proceedings.
38. In this regard, reference may be made to the
observations of the Supreme Court in Appropriate
SCA/6625/2011 85/98 JUDGMENT
Authority v. H.G.Thakkar Hari X­Rays, Colour,
Doppler Sonography & Ors. (supra) that have been
reproduced hereinabove, regarding custody of the
property seized in a criminal offence, wherein it
has been held by the Supreme Court that the High
Court ought not to have exercised jurisdiction
under Article 226 of the Constitution of India as
a criminal offence under the PNDT Act had been
registered against the petitioner therein,
regarding the Sonography machines seized therein.
A criminal case has been registered against the
petitioner and the above observations would have
a bearing on the present case.
39. As a result of the above discussion, the prayer
made by the petitioner to direct the respondents
to remove the seals from the Sonography machines
of the petitioner cannot be granted.
40. With regard to suspension of the certificate of
registration of the Clinic of the petitioner, the
record reveals that the “Imaging House” of the
petitioner has been granted a certificate of
registration for a period of five years, ending
on 07.04.2014. The registration has been granted
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subject to the PNDT Act and Rules. It is clearly
stated in the Certificate that any contravention
of the PNDT Act and Rules shall result in
suspension, or cancellation, of the Certificate
of Registration, before the expiry of the period
of five years, apart from inviting prosecution.
41. It is not in dispute that on 13.02.2010, the
Appropriate authority under the PNDT Act visited
the Clinic of the petitioner and carried out an
inspection. It was found that Form­F is not being
filled up by the petitioner though, as per the
case of the respondent – Authority, the PNDT Act
requires that Form­F should be filled up and
signed by the concerned Radiologist /
Gynaecologist, who has conducted the ultrasound
test on the pregnant woman. The Appropriate
Authority found that Form­F was being filled up
by the staff of the petitioner which, as per the
said notice, amounts to a serious contravention
of the provisions of the PNDT Act. The petitioner
replied to the said notice on 19.02.2010,
undertaking that he shall personally fill up
Form­F in future, and take care. This explanation
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was accepted by the Appropriate Authority. By
communication dated 20.05.2010, the Appropriate
Authority, while informing the petitioner
regarding acceptance of his explanation, directed
him to ensure strict compliance of the provisions
of the PNDT Act. A second inspection of the
Clinic of the petitioner took place on
23.09.2010, and five contraventions of the PNDT
Act and Rules, as detailed in the notice,
regarding filling up of Form­F were found. The
petitioner gave his explanation vide reply dated
24.09.2010, stating that he would rectify the
said lapses. This explanation was also accepted
by the District PNDT Advisory Committee and the
petitioner was so informed, by communication
dated 01.12.2010. Once again, the petitioner was
directed to ensure that no contraventions of the
provisions of the PNDT Act and the Rules take
place at his Clinic, in future. The Clinic of the
petitioner was inspected for the third time on
28.04.2011, and two contraventions of the PNDT
Act were found. The contents of the notice dated
28.04.2011, have already been reproduced
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hereinabove. The explanation rendered by the
petitioner, vide letter dated 01.05.2011, was not
found to be satisfactory by the District PNDT
Advisory Committee. The petitioner was so
informed, by communication dated 20.05.2010,
stating that in spite of earlier warnings,
contraventions of the provisions of the PNDT Act
have continued to be made in the Clinic of the
petitioner. Resultantly, the impugned order dated
13.05.2011 came to be passed, suspending the
registration of the petitioner’s Clinic, till
further orders.
42. The main contention raised by the learned
advocate for the petitioner is that the notice
dated 28.04.2011, is stated to be issued under
Section 20(1) and (2) of the PNDT Act, but is not
in consonance with the said provisions of law, as
it is not stated that it is a show cause notice,
or why the registration of the petitioner should
be suspended or cancelled. It has also been
contended that the period for which the
registration has been suspended is not mentioned,
as stated in sub­section (2) of Section 20 of the
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PNDT Act, and no proper opportunity of hearing
has been afforded to the petitioner. In short,
the contention is that due to the above­mentioned
shortcomings in the notice dated 28.04.2011,
there has been a violation of the principles of
natural justice.
43. It is not disputed that an alternative, statutory
remedy is available to the petitioner under
Section 21 of the PNDT Act against suspension of
the registration. The said remedy has not been
availed, and the jurisdiction of this Court under
Article 226 of the Constitution has been invoked,
on the ground of violation of the principles of
natural justice.
44. In order to examine the above contentions, it
would be pertinent to revert to the contents of
the notice dated 28.04.2011, which is reproduced
hereinbelow:
“OFFICE OF THE DISTRICT APPROPRIATE
AUTHORITY (UNDER PNDT ACT 1994)
The premises of Dr.Kalpesh Patel’s Imaging
House, has been inspected by the A.A. & CDHO
Ahmedabad Dr.N.J.Patel today i.e. on
28.04.2011 and found the following
deficiencies:
1) Register to be maintained with details
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of women (ANC) undergoing USG is not fill up
to date of today. It is filled up to dated
23.02.2011.
2) on inspection of form “F” of period
January 11 to April, 2011, in one form there
is no sign doctor doing sonography & its
doctors declaration part. In eight form “F”
there is no sign. of the pregnant women
in declaration of the woman part of the form
“F” Totally nine form “F” were filled with
deficiency of inaccuracy.
In view of above contraventions of the also
under PC & PNDT Act, 1994 it is the public
interest that in exercise of the provision
under section 20(1) & (2) of the PC & PNDT
Act, I also order for issuing show cause
notice for complying the aforesaid
contravention within three days. The
following documents/ materials are also
being seized.
1) The deficiently filled nine form “F” as
mentioned above with a referal letter in
eight of them.
The PNDT Register’s last page Xerox copy.
Sd/­
(District Appropriate Authority)
28.04.2011
Appropriate Authority,
Pre­natal Diagnostic
Technique Act, 1994
of Ahmedabad District
And C.D.H.O.”
45. The said notice may not be very happily worded
but it is evident from a perusal thereof that it
has been issued under sub­sections (1) and (2) of
Section 20 of the PNDT Act, and that the
SCA/6625/2011 91/98 JUDGMENT
petitioner has been given three days in which to
reply. Though the word `reply’ has not been
specifically stated, and the language used is
“for complying the above said contravention
within three days”, it has been understood by the
petitioner that he is to reply within three days.
The petitioner has, in fact, furnished a reply
within the specified period of time, on
01.05.2011. The earlier notices issued to the
petitioner on 13.02.2010 and 23.09.2010, are
similarly worded, and on both occasions, the
petitioner has rendered his explanations within
the period of time stipulated therein. Those
explanations have been accepted by the
Appropriate Authority. The petitioner has not
raised any such contention as is being raised
regarding the impugned notice. So far as those
two notices are concerned, it has not been stated
by him that those notices were not in consonance
with the provisions of Section 20(1) and (2) of
the PNDT Act. The petitioner is well aware of the
fact that the notice dated 28.04.2011 has been
issued under Section 20(1) and (2) of the PNDT
SCA/6625/2011 92/98 JUDGMENT
Act and has, accordingly, rendered his
explanation, which has not been accepted.
46. An opportunity of hearing and putting up his
defence has been afforded to the petitioner and
he has availed of the same by offering his
explanation. It, therefore, cannot be said that
as the impugned notice has not been properly
worded, the petitioner has been deprived of a
proper opportunity of hearing. Such a contention
has never been raised by the petitioner in the
reply dated 01.05.2011, while furnishing his
explanation pursuant to the said notice.
47. The object of the principles of natural justice
which is now understood as being synonymous with
the obligation to provide a fair hearing, is to
ensure that there is no failure of justice and
that justice is done equally between the parties.
48. In this regard, the observations of the Supreme
Court in State Bank of Patiala And Others v.
S.K.Sharma (supra), are pertinent:
“32. Now, coming back to the illustration
given by us in the preceding paragraph,
would setting aside the punishment and the
entire enquiry on the ground of aforesaid
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violation of sub­clause (iii) be in the
interests of justice or would it be its
negation? In our respectful opinion, it
would be the latter. Justice means justice
between both the parties. The interests of
justice equally demand that the guilty
should be punished and that technicalities
and irregularities which do not occasion
failure of justice are not allowed to defeat
the ends of justice. Principles of natural
justice are but the means to achieve the
ends of justice. They cannot be perverted
to achieve the very opposite end. That would
be a counter­productive exercise. ”
(emphasis supplied)
49. As stated by the Supreme Court in the abovequoted judgment, technicalities and
irregularities which do not occasion a failure of
justice should not be allowed to defeat the ends
of justice. The petitioner has been afforded a
reasonable opportunity of hearing, which he has
availed, by offering his explanation. The
petitioner was aware that he was required to meet
the allegations levelled against him in the
impugned notice, and has given his reply. It
should be borne in mind that this is not the
SCA/6625/2011 94/98 JUDGMENT
first notice under Section 20(1) and (2) received
by the petitioner, but the third one. The
petitioner has replied to all the notices which
are similarly worded, each time, and it is only
when his explanation to the last notice has not
been accepted that a grievance has been raised
regarding violation of the principles of natural
justice. In these circumstances, the contention
that the principles of natural justice have been
violated on the technical ground that the
impugned notice is not properly worded, as
envisaged in sub­section (1) of Section 20, is
neither plausible nor convincing. What is
necessary is that a reasonable opportunity of
hearing should be granted, which has been done in
the present case. In the reply dated 01.05.2011,
the petitioner has not complained that he has not
been granted an adequate opportunity of hearing,
or that he would like to offer a further
explanation. On the contrary, the petitioner has
given an assurance that he would rectify the
contraventions of the PNDT Act, alleged to have
been committed by him.
SCA/6625/2011 95/98 JUDGMENT
50. The cumulative effect of the above discussion is
that, keeping in mind the Scheme, object and
purpose of the PNDT Act, and the Rules framed
thereunder, and considering that there is no
specific provision requiring a show cause notice
to be issued before sealing the Sonography
machines under Section 30 of the PNDT Act read
with Rule 12 of the Rules, there has been no
violation of the principles of natural justice at
the hands of the respondent – Appropriate
Authority while sealing the machines. The nature
of power vested under Section 30 of the PNDT Act
read with Rule 12 of the Rules, which empowers
the Appropriate Authority to exercise the power
for the purposes of search, seizure or sealing,
if it has reason to believe that such action is
necessary in order to furnish evidence of
commission of an offence under the PNDT Act,
makes the intention of the Legislature abundantly
clear. The very purpose and object for which the
Section and Rule have been enacted would be
defeated if prior notice of sealing is given. To
do so may result in important evidence being
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lost. It can, therefore, be said that the
intention of the Legislature that can be gathered
from the Scheme of the Act is to bar the
applicability of the principles of natural
justice by necessary implication with regard to
the provisions of Section 30 of the PNDT Act,
read with Rule 12 of the Rules. The judgments
relied upon by the learned advocate for the
petitioner would, therefore, not be applicable in
the context of the object, purpose, and Scheme of
the PNDT Act with regard to sealing of the
Sonography machines. Reference can be made to
Kilol v. Shelat v. Municipal Corporation of City
of Ahmedabad & Anr. (supra), relied upon by the
learned advocate for the petitioner, wherein a
Division Bench of this Court has held that the
principles of natural justice would have to be
read into the provisions of Section 210 of the
BPMC Act. There, the Court was dealing with the
right to property, which is quite distinct and
distinguishable obligation of the petitioner to
conduct his profession in accordance with the
provisions of the PNDT Act. In the present case,
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the Sonography machines have been sealed so as to
furnish evidence of the commission of an offence
under the PNDT Act. The BPMC Act cannot be
equated with the PNDT Act and the circumstances
and factual matrix, as obtaining in the judgment
of the Division Bench and in the present case,
are entirely on a different premise, therefore,
the principle of law enunciated in the said
judgment would not be applicable to the present
case.
51. As already discussed hereinabove, there has been
no violation of the principles of natural justice
insofar as the suspension of the registration of
the Clinic of the petitioner is concerned. The
impugned notice dated 28.04.2011 cannot be said
to be bad merely on technical considerations as
there has been a substantial compliance with the
provisions of Section 20(1) and (2) of the PNDT
Act. An opportunity of hearing has been granted
to the petitioner, which has been availed of, by
rendering his explanation.
52. In my considered view, as alternative statutory
remedies are available to the petitioner under
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Rule 19 of the Rules and Section 21 of the PNDT
Act, with regard to sealing of Sonography
machines and suspension of registration of his
Clinic, no such contingency exists justifying the
invocation of the jurisdiction of this Court
under Article 226 of the Constitution of India,
by by­passing the statutory remedies.
53. Resultantly, both Special Civil Application
No.6625 of 2011, and Special Civil Application
No.7234 of 2011, stand rejected.
54. It is clarified that the Court has not entered
into the merits of both petitions, and it is open
to the petitioner to invoke the alternative
remedies as provided under the PNDT Act and
Rules, if so desired. In that event, the
Appellate Authority may not be influenced by any
observation made in this judgment.
55. Rule is discharged in both the petitions. There
shall be no orders as to costs.
(Smt. Abhilasha Kumari, J.)
(sunil)
.