Gujarat High Court
Dipak Rajkumar Khilwani vs Sub Appropriate Authority (Pc And Pndt) on 10 May, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/2447/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2447 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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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 or any
order made thereunder ?
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DIPAK RAJKUMAR KHILWANI
Versus
SUB APPROPRIATE AUTHORITY (PC AND PNDT) & 2 other(s)
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Appearance:
MR AD OZA(515) for the Petitioner(s) No. 1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 3
MS RV ACHARYA(1124) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 10/05/2019
ORAL JUDGMENT
1 Petitioner is before this Court in a petition under Articles 14,19(1)(g) and 226 of the Constitution of India challenging the action of respondent No.1 in the following factual background:-
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C/SCA/2447/2018 JUDGMENT 1.1 The petitioner, after completing his MBBS Degree from B.J. Medical
College, Ahmedabad has acquired the qualification of Diploma in Obstetrics and Gynecology from the same college in the year 2011 and has acquired certificate of fellowship in Indian College of Obstetrics and Gynecology in ultrasound. The wife of the petitioner has also acquired the qualification of BDS from ACPM Dental College, Dhule, Maharashtra and is working presently as a consultant dentist at Nidhi Hospital, Modasa. The petitioner is presently running his own Gynec consultancy in the name and style of Shree Navjeevan Hospital from December, 2011 at Meghraj, District: Aravalli. The said hospital is also having the registration under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 ("PC & PNDT Act" for short) and the same was renewed after five years in the year 2017. He is following the entire proceduralities in respect of the registration under the Act. It is further his say that he never encouraged or helped in determination of sex of the foetus and/or abortion. The petitioner has started a new clinic at Modasa in the name and style of Nidhi Hospital, District: Aravalli in the year 2017. The said clinic is also registered with certificate bearing Registration NO.GJ-14000006-GC-2017 which was granted vide letter dated 14.08.2017. The petitioner placed an order of sonography machine and respondent No.2 granted permission to install the machine in the premises of the clinic vide order dated 31.08.2017. The petitioner submitted installation report of the Samsung India Electronic Pvt. Ltd. vide letter dated 04.09.2017. Respondent No.2 appropriate authority instructed respondent No.1 Page 2 of 11 Downloaded on : Sat Sep 28 23:06:15 IST 2019 C/SCA/2447/2018 JUDGMENT Sub-District Appropriate Authority on 08.09.2017 to include the details of sonography machine and to prepare report with detailed check-list after verifying the proposal of the petitioner and further requested respondent No.1 to send back the said proposal along with the opinion to the office of respondent No.2.
2 It is the grievance on the part of the petitioner that respondent No.1 came to the clinic of petitioner on 03.10.2017 pursuant to the said letter of respondent no.2 of 08.09.2017, without any intimation and instead of carrying out the inspection, as instructed by respondent No.2, respondent No.1 started blaming the petitioner and when he did not succumb to the pressure, he started inspecting the sonography machine. At that time, Dr. Anil Baranda, Gynecologist, had come with his wife Dr. Gayatri Baranda. Respondent No.2 noticed that the wife of Dr.Baranda is pregnant and therefore the officer insisted the petitioner to demonstrate the functioning of the machine. The petitioner not having realized that this was a trap of respondent No.1 took photographs of Dr.Gayatri Baranda, who was lying on the table and therefore, the presence of the lady is evident.
2.1 It is also alleged that Respondent No.1 did not even maintain the decorum and dignity of a pregnant woman. The wife of Dr. Anil Baranda is registered for the purpose of consultation with another gynecologist Dr. Jalpa Shah, who has her clinic in the name and style of "Shreenath Hospital. Therefore, as such, she did not need any sonography at the clinic of the petitioner. Dr. Jalpa shah Gynecologist has also sent Form-F duly filled in with respect to the case of Page 3 of 11 Downloaded on : Sat Sep 28 23:06:15 IST 2019 C/SCA/2447/2018 JUDGMENT Dr.Gayatri Baranda, since she regularly visited Shreenath hospital. It is the grievance on the part of the petitioner that respondent No.1 did not complete any formality and instead had instructed respondent No.2 vide communication dated 08.09.2017. No entry was made of sonography machine in the registration certificate. Therefore, there was no online I.D. created nor any password generated. Sonography machine could not have been used even before 03.10.2017 and respondent No.1 had taken away the booklet consisting of Form-F. 3 Notice came to be issued on 03.10.2017 seeking explanation of the present petitioner within 02 days as to why registration of the clinic be not cancelled and seal be not applied to the machine. 3.1 The petitioner was required to remain present before the advisory committee on 04.01.2018, which he did. Copy of the minutes of the advisory committee where the petitioner remained present also has been furnished to him.
4 It is the grievance on the part of the petitioner that after getting the report of the advisory committee on 04.01.2018, respondent No.1 had attended the clinic of the petitioner with other three members of the supporting staff and made a panchnama without following any rules where his signature also has not been obtained. It is alleged that it is revengeful action to defame his clinic. He has relied on the provisions of the PC & PNDT Act and Rules to challenge that subsequent notice issued, being the show cause notice on 09.02.2018, seeking to suspend registration of the clinic of the petitioner under section 20(3) of the said Act.
4.1 As averred in the petition, since the action of the respondent is Page 4 of 11 Downloaded on : Sat Sep 28 23:06:15 IST 2019 C/SCA/2447/2018 JUDGMENT
arbitrary, illegal, mala fide, as pleaded and therefore, the petitioner has prayed for the following reliefs:-
"PRAYERS
8.The petitioner, therefore, most humbly prays that:-
(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 mandamus or any other appropriate writ, order or direction or writ in the nature of certiorari, quashing and setting aside the notice dated 03.10.2107 passed by the respondent No.2(Annexure- F); and further be pleased to direct the respondents to reopen the seal on sonography machine of the petitioner;
(C) This Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ, or any other appropriate writ, order or direction or wirt in the nature of certiorari, quashing and setting aside the action on th epart of respondent No.1 and 2 in sealing and seizing the Sonography machine by the declaring the same as illegal, improper, unjust, mala fide, vindictive and against the principles of natural justice and further be pleased to direct the respondent to release the Sonography machine and the petitioner be permitted to use the same pursuant to the registration under the PD & PNDT Act;
(D) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the execution, implementation, and operation of the notice dated 03.10.2017 and further be pleased to direct the respondent No.1 and 2 to allow the petitioner to use his Sonography machine by removing the seal applied thereon;
(E) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents to allow the petitioner to practice in furtherance of the registration No.GJ-14000006-GC-2017 and to use the Sonography machine;
(EE) Amendment carried at as per Court's order dated 20.02.2018. (F) This Hon'ble Court may be pleased to grant any other and further reliefs, as the nature and circumstances of the present case may require."
5 Affidavit on behalf of respondents No.1 and No.2 is filed by Dr.Jigna D. Jayswal working as Sub-District Appropriate Authority, Modasa stating therein that she is conversant with the facts.
6 It is not disputed that the petitioner has started the new clinic at Modasa, namely, Nidhi Hospital in July, 2017 and he had applied for registration of sonography machine and the same was granted by the Appropriate Authority. Installation of the sonography machine was done by the petitioner and he informed the authorities on 04.09.2017. On 03.10.2017 respondent No.1 herein had visited the clinic of the petitioner and it was Page 5 of 11 Downloaded on : Sat Sep 28 23:06:15 IST 2019 C/SCA/2447/2018 JUDGMENT found that the petitioner was performing the sonography on a pregnant lady called Ms.Gayatri Baranda without following the provision of PC & PNDT Act and the rules. When enquired, she was threatened of his political connections. It is urged that this threat coupled with non-filing of Form-F nor taking signature of the pregnant woman are some of the serious violations of the provisions of the PC & PNDT Act. The case is at the stage of show cause notice dated 03.10.2017, which is not being replied to, till date. It is the contention that before the Advisory committee the petitioner had admitted of having performed the sonography of a pregnant lady and that too, without filling up Form-F. It is further lamented that sex ratio in the District of Aravalli-Modasa has depleted considerably of 864 females against 1000 males. In such circumstances, when he was found to be performing sonography on the pregnant lady having female child the possibility of this being a subject of sex determination of the foetus cannot be ruled out. A complaint is filed before the Court of learned Judicial Magistrate First Class, Modasa being Criminal Case No.65 of 2018. He is yet to be tried for the offences committed under the PC & PNDT Act and, therefore, seal of machine cannot be opened at this stage. It is further contended by the respondents that he has been issued the show cause notice and the same has been replied to. Such a reply has been placed before the advisory committee where the order of suspension of registration is yet to be passed. Therefore, staying the operation and implementation of the notice is prematured since no final order of suspension of registration is passed by the authority. Respondent No.1 has taken charge of her post on Page 6 of 11 Downloaded on : Sat Sep 28 23:06:15 IST 2019 C/SCA/2447/2018 JUDGMENT 13.09.2017 and, therefore, there does not arise any question of mala fide since he was found caught red-handed performing sonography on a pregnant lady. It is urged that only with a view to escape from the said act has alleged mala fide and vindictiveness against the respondents. 7 Affidavit-in-rejoinder is also filed where averments set out in the main petition have been reiterated, wherein it is further urged that respondent No.2 cannot take such a drastic step of sealing sonography machine. There is a mala fide intention in the communication dated 09.02.2018. The show cause notice is of 03.10.2017. The machine was sealed on 04.02.2018 and complaint is filed on 08.01.2018. It is further his say that respondent No.1 was directed to include details of sonography machine and to prepare a report and detailed check-list after performing the proposal of the petitioner. Instead, respondent No.1 had diverted the entire issue. It is reiterated that the issuance of notice and action of sealing of sonography machine is unjust, improper and illegal. There is no mention of conducting sonography in case Dr. Gayatri Baranda. 8 This Court has heard extensively learned advocates on both the sides who have reiterated the version set out in the pleadings. 8.1 Learned Advocate Mr. Oza appearing for the petitioner vehemently urged that for more than a year machine has been sealed without following the procedure and it is a criminal waste of huge investment made by the petitioner. He has urged further that Taluka level officer had no business to seal the machine under subsequent notice under section 20(3) of the Act.
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C/SCA/2447/2018 JUDGMENT 8.2 Learned advocate Ms.Acharya appearing for the appropriate
authority has resisted the same on the ground that the petitioner has attempted to bypass the mode prescribed under the special statute. Ratio of females qua males has reduced considerably in the State and particularly in Modasa District and hence, strict implementation of the rules and provisions of the Act need not be interfered with. 8.3 Learned Additional Public Prosecutor also has resisted this application considering the availability of alternative remedy. 9 Having thus heard both the sides and on due consideration of material available, the question that would arise for consideration of this Court is as to whether this Court needs to exercise the extraordinary powers for setting aside the show cause notice dated 03.10.2017 and also the subsequent notice dated 09.02.2018 and whether any direction needs to be given for releasing the sonography machine?
9.1 In the case of Union of India vs. Coastal Container Transporters Association and others, 2019 SCC OnLine SC 274, has held in no unclear terms as to why the Court need not exercise the extraordinary powers. Profitably the the ratio requires reproduction:-
"19. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of the Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ pettions at the stage of cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this court. Ths judgment of this Court in the case of Union of India v. Guwahati Carbon Ltd. (supra) relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code Page 8 of 11 Downloaded on : Sat Sep 28 23:06:15 IST 2019 C/SCA/2447/2018 JUDGMENT in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case of Malladia Drugs & Pharma Ltd. v. Union of India, relied on by the learned senior counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage."
9.2 In the case State of Orrisa and others vs. Mesco Steels Ltd and another, 2013(4) SCC 340, the Apex Court held as under:-
"16. In the light of what we have said while deciding question No.1 above, this question should not hold us for long. It is true that the High Court had by an interlocutory order directed the parties to maintain status quo, but whether the said order had the effect of preventing the State Government from issuing a show cause notice was arguable. The issue of show cause notice did not interfere with the status quo. It simply enabled the respondent-company to respond to the proposed action. Be that as it may, once the show cause notice was issued, the High Court could have directed the respondent-company to respond to the same and disposed of the writ petition reserving liberty to it to take recourse to such remedy as may have been considered suitable by it depending upon the final order that the Government passed on the said notice. What was significant was that the respondent-company had not assailed the validity of the show cause notice on the ground of jurisdiction or otherwise. If the validity of the show cause notice was itself in question on the ground that the Government had no jurisdiction to issue the same, nothing prevented the company from maintaining a writ petition and challenging the notice on that ground. The High Court would in that event have had an opportunity to examine the validity of the notice. In the absence of any such challenge the High Court could not simply ignore the notice even if it was issued in breach of the order passed by the Court. It was one thing to prevent further steps being taken pursuant to the notice issued by the Government but an entirely different thing to consider the notice to be non est in the eye of law. The High Court could have taken the show cause notice as a reason to relegate the parties to a procedure which was just and fair and in which the respondent could urge all its contentions whether on facts or in law. Our answer to question No.2 is, therefore, in the negative.
9.3 In the case of Special Director vs.Mohd. Ghulam Ghouse, 2004(3) SCC 440, the Apex Court held as under:-
"5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even Page 9 of 11 Downloaded on : Sat Sep 28 23:06:15 IST 2019 C/SCA/2447/2018 JUDGMENT investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted."
10 Without going into the merits of the matter, the law is very well laid down so far as exercise of writ jurisdiction under Article 226 of the Constitution of India is concerned, the Apex Court has held and observed that the litigation against the show cause notice is not sustainable when there is an alternative efficacious remedy provided under the law. Reverting to the factual matrix of the case on hand, it is not in dispute that the show cause notice of Taluka level officer is of 03.10.2017 for sealing of machine and cancellation of registration under PC & PNDT Act. The sealing of the machine was done on 04.02.2018 and the criminal complaint is of 08.01.2018. Amendment in the petition is permitted to the petitioner as during the pendency of this petition, yet another show cause notice is issued under section 20(2) of the said Act and it is apparent from the record that the petitioner has already replied to the said show cause notice on 12.02.2018 the challenge is made to both the show cause notices as well as to the process of sealing and also initiation of criminal complaint.
11 It appears that the petitioner is aggrieved by the visit of respondent No.1 who after the permission to install the machine by M/s. Page 10 of 11 Downloaded on : Sat Sep 28 23:06:15 IST 2019
C/SCA/2447/2018 JUDGMENT Samsung Company came to inspect without any prior intimation. The petitioner was carrying out sonography to test run the machine on the wife of his colleague and a friend, who is already registered with another colleague doctor. Admittedly, generation of password and other requisite formalities were yet to be completed and in such circumstances, if he was found to be using the machine even in the circumstances, he explained first show cause notice is issued on 03.10.2017 and thereafter the Appropriate Authority has issued the same on 09.02.2018 under section 20 of the Act.
11.1 Appeal is provided under section 21 of the Act in the event order of cancellation of registration is passed by the Appropriate Authority. 11.2 When the authority concerned, prescribed under the statute have followed the procedure of issuance of show cause notices and petition has already replied to one of these notices on 12.02.2018, it does not appear to be the case for this Court to intervene in the writ jurisdiction.
11.3 This petition is not entertained at the stage of show cause notice. Let the process be completed of adjudicating upon the said SCNs, if not already over within two weeks from the date of receipt of the copy of this judgment. The petitioner if is aggrieved by the outcome, shall take due course prescribed under the law. This disposal since is not on merit and shall not be viewed prejudicially in his case. 12 Petition stands disposed of accordingly.
Direct service is permitted today.
(MS. SONIA GOKANI, J. ) SUDHIR Page 11 of 11 Downloaded on : Sat Sep 28 23:06:15 IST 2019