Gujarat High Court
Priykant Mokalal Kapadia vs State Of Gujarat & on 10 April, 2015
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/9424/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9424 of 2014
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PRIYKANT MOKALAL KAPADIA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SAMIR J DAVE, ADVOCATE for the Petitioner(s) No. 1
MR RS OZA ASSISTANT GOVERNMENT PLEADER for the Respondent(s)
No. 1 -
MR NIKHILESH J SHAH, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 10/04/2015
ORAL ORDER
1.0 As per the observations made by the Division Bench of this Court in Letters Patent Appeal No. 133 of 2015, the matter is taken up for final hearing.
2.0 By way of present petition under Articles 14, 19 , 21 and 226 of the Constitution of India, and the petitioner is practicing as M.D. (Gynec), the petitioner has prayed as under:
15[A] This Hon'ble Court may be pleased to admit and allow this petition.
[B} This Hon'ble Court may be pleased to issue writ of Page 1 of 11 C/SCA/9424/2014 ORDER mandamus or certiorari or writ in the nature of mandamus or certiorari or any other appropriate writ, direction and/or order quashing and setting aside the impugned orders dated 10.10.2013 and 03.12.2013 passed by the respondent no.2 Appropriate Authority [ Annexure C collectively] and order dated 02.06.2014 passed in Appeal No. 3 of 2014 by the Appellate Authority [ Annexure D].
[C] Pending hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the impugned orders dated 10.10.2013 and 03.12.2013 passed by the respondent no. 2 Appropriate Authority [ Annexure C collectively] and order dated 02.06.2014 passed in Appeal No. 3 of 2014 by the Appellate Authority [ Annexure D].
[D] To grant any such other and further reliefs as this Hon'ble Court deems just and proper in the facts and circumstances of the case.
[E] To award the cost of the petition. 3.0 The brief facts arose from the record are as under:
3.1 That the petitioner is a Doctor by profession and having degree of MD in Gynec and having his maternity hospital and uses sonography machine for routine check up of the foetus health so as to ensure the proper growth of the foetus and to safeguard the life of the mother. 3.2 It is the case of the petitioner that with the advancement of the Page 2 of 11 C/SCA/9424/2014 ORDER technology, the petitioner was required to purchase/change the sonography machine and accordingly, he bought/changed the sonography machine by purchasing new Color Doppler USG Unit. Accordingly, the petitioner informed about the same vide letter dated 01.10.2011 to the respondents. The petitioner is maintaining the registers and other requirement as per the provisions of the Act. The petitioner was regularly submitting the forms filled up by the petitioner along with the declaration of the patient and the petitioner with the respondent authorities as per the requirement under the Act. It is also the case of the petitioner that he is not provided with the complete details by the patients due to their ignorance or illiteracy and therefore, the petitioner could not mention those details in the register and the same remained silent on certain issues. The respondents visited the clinic of the petitioner on 05.10.2013 and carried out the Panchnama of the clinic of the petitioner wherein the respondent found certain deficiencies and irregularities. The petitioner was served with the impugned order of suspension of registration/license of the petitioner under Section 20(3) of the Preconception and Prenatal Diagnostic Techniques ( Prohibition of Sex Selection Act) 1994 (for short 'the PNDT Act) till further order.
3.3 After passing the order dated 10.10.2013, the petitioner again received a communication dated 03.12.2013 from the respondent authority extending his suspension of his registration/license till the Page 3 of 11 C/SCA/9424/2014 ORDER Criminal Case No. 1423 of 2013 is finally decided. The petitioner challenged the suspension of the authority before the appellate authority by way of filing Appeal No. 3 of 2014 which came to be dismissed vide order dated 02.06.2014. Hence, this petition. 4.0 Initially the stay against the implementation of order was passed by the coordinate bench of this Court ( Coram: Paresh Upadhyay, J.) on 10.12.2014. The said order was challenged by the respondent by way of filing appeal being Letters Patent Appeal No. 133 of 2015 along with Civil Application challenging the order of the learned Single Judge . The Division Bench of this Court has granted the stay in favour of the appellant respondent and against the implementation, operation of the interim relief granted by the Court. On 12.03. 2015, the Division Bench disposed of the appeal however requested the learned Single Judge to expedite the appeal since the registration of the petitioner has been suspended and the machines have been seized by the authority and lying idle with it since October 2013.
5.0 Mr. Samir Dave, learned advocate appearing for the petitioner would submit that the authority has initially suspended the registration by passing the order dated 10.10.2013 under Section 20(3) of the PNDT Act and thereafter continued the same by another order dated 03.12.2013. He would submit that even after initial order of suspension dated 10.10.2013, the authority has neither issued any notice to the Page 4 of 11 C/SCA/9424/2014 ORDER petitioner nor called upon the petitioner for explanation before passing the order dated 03.12.2013, by which, the registration/lincese has been suspended till the criminal case is finally decided by the competent Court. He would submit that under Section 20(3) of the PNDT Act, the authority has power to suspend the registration only if the authority is of the opinion that it is necessary or expedient to so to do in the public interest, however, in ordinary case, cancellation or suspension of registration or license would be subject to issue notice to the concerned center who is running the Clinic or Laboratory etc. 6.0 Mr. Samir Dave, learned advocate appearing for the petitioner would submit that no such opportunity of hearing was given by the authority to the petitioner before passing the second order dated 03.12.2013 which is as good as suspending the registration permanently since the completion of criminal case would take a long time. He would submit that even otherwise, considering the allegations levelled against the petitioner that he does not keep the record according to the Act and Rules, the authority may permit the petitioner to carry on his profession by putting terms and conditions and having a periodic check in the Clinic run by the petitioner.
7.0 He would submit that the criminal case which has been recently filed in the year 2013, shall take long time and the petitioner who has been practicing since 40 years shall lose his practice for indefinite Page 5 of 11 C/SCA/9424/2014 ORDER period.
8.0 He would further submit that if the authority would have given opportunity of hearing, the petitioner could have placed all relevant documents which have been produced before the Court and could have explained under what circumstances, the one Form F was not filled up by the petitioner as required under the provisions of Act and Rules. 9.0 He therefore, relied upon the decision of this Court in case of Jashmina Dilip Devda versus State Appropriate Authority under PNDT Act and Anr. 2014(1) G.L.H 265 and submits that the case is squarely covered under the said ratio laid down by this Court and therefore, the impugned orders may be quashed and set aside and the petition may be allowed.
10.0 On the other hand, Mr. NJ Shah, learned advocate appearing for respondent no.2 would submit that the orders have been passed under Section 20(3) of the PNDT Act and therefore giving opportunity of hearing to the petitioner is not required since the powers are vested with the appropriate authority if it is of the opinion that it is required to do so in the public interest. By taking me through the order dated 10.10.2013, he would submit that the order has been passed in the public interest and therefore, there is no requirement of quashment of the orders passed by the authority.
Page 6 of 11 C/SCA/9424/2014 ORDER 11.0 He would further submit that Section 20(1) and Section 20(2) of the PNDT Act would not be applicable in the present case since initially the order has been passed under sub section (3) of Section 20 of the PNDT Act and the subsequent order dated 03.12.2013 is only clarification that the registration is suspended till the criminal case is finally decided by the competent Court for breach of penal provisions of the Act and Rules. He would further submit that the registration/license of the petitioner is not cancelled and therefore, there is no question of giving opportunity of hearing to the petitioner till the criminal case is finally decided by the authority. As far as the case which has been relied upon by the learned advocate for the petitioner in case of Jashmina Dilip Devda ( supra) is concerned, he would submit that facts are different from the present case and therefore, it is not applicable in the present case.
12.0 I have heard learned advocates for the parties and perused the papers including the impugned orders.
13.0 Before dealing with the facts, I would like to reproduce Section 20 of the PNDT Act. Section 20 of the PNDT Act reads as under:
(1) The Appropriate Authority may suomotu, or on complaint, issue a notice to the Genetic Counselling Centre, Genetic Page 7 of 11 C/SCA/9424/2014 ORDER 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, ofthe 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).
14.0 If the provisions of Section 20(3) of the PNDT Act is perused, it appears that appropriate authority has power to suspend the registration of the laboratory or the clinic etc., if it is of the opinion that it is necessary or expedient so to do in the public interest and hence there is no need to serve a notice and therefore, the order can be passed Page 8 of 11 C/SCA/9424/2014 ORDER without issuing any notice under Section 20(3) of the PNDT Act. 15.0 It is true as stated herein that the authority has passed the orders dated 10.10.2013 and second one dated 03.12.2013 under the provisions of Section 20(3) of the PNDT Act. However, I am of the opinion that while passing the order dated 10.10.2013, there was no need to issue any notice under Section 20(1) of the PNDT Act. However, when the second order dated 03.12.2013 is passed by the authority, by which, suspension of registration/ licence is extended which, in my opinion is amount to confirming the suspension because it would be indefinite suspension since there is no time limit prescribed under the provisions of the PNDT Act to complete the criminal case filed for the offence punishable under the PNDT Act.
16.0 I am also of the opinion that by extending the suspension of the registration that too without giving opportunity of hearing to the petitioner would amount to breach of principles of natural justice. The petitioner had not been given opportunity for his defence who is facing the suspension and thereafter cancellation of the registration. 17.0 If sub section (1) and (2) of Section 20 of the PNDT Act is closely scrutinized, it makes specific provision of hearing the person who is facing the suspension or cancellation of the registration of laboratory or center, clinic etc. Subsection (3) of Section 20 of the PNDT Act in Page 9 of 11 C/SCA/9424/2014 ORDER exceptional cases, if the authority finds that it is necessary or expedient so to do in the public interest, the suspension of license without calling upon the party, the notice is not necessary at the initial stage for passing order under Section 20(3) of the PNDT Act, however, it ought to have given opportunity of hearing to the petitioner before extending the suspension period, which in my opinion would be for a indefinite period. The suspension for a indefinite period would be as good as cancellation of registration. A citizen must get sufficient opportunity to plead his case when there is a question of pursuing his profession, business etc. 18.0 Even otherwise, if the orders impugned in the petition are looked into, the petitioner might have been committed breach of one of the provisions of the Act/ Rules, that is not filling up the form of one patient, that would not suffice to suspend the license for indefinite period. 19.0 Considering the overall facts and circumstances of the case, I am of the opinion that while passing the order passed on 03.12.2013, the authority ought to have issued the notice to the petitioner so as to explain his case before suspension of his license for indefinite period. 20.0 By extending the suspension that to relying upon the earlier order only amount to suspend the license for indefinite period. The second order dated 03.12.2013 does not disclose any additional ground which would govern the provisions of Section 20(3) of the PNDT Act for Page 10 of 11 C/SCA/9424/2014 ORDER passing the order.
21.0 Considering the overall facts and circumstances of the case, I am of the opinion that the petition requires consideration. The impugned orders dated 10.10.2013 and 03.12.2013 passed by the appropriate authority as well as order dated 02.06.2014 passed in Appeal No. 3 of 2014 by the Appellate Authority are hereby quashed and set aside. Rule is made absolute.
22.0 Mr. Shah, learned advocate for respondent no. 2 requests to suspend the present order for a period of four weeks. Accordingly, the present order shall be suspended for four weeks.
(A.J.DESAI, J.) niru* Page 11 of 11