Gujarat High Court
State Appropriate Authority Under Pndt ... vs Jashmina Dilip Devda & on 6 January, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/311/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 311 of 2014
In SPECIAL CIVIL APPLICATION NO. 6215 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE APPROPRIATE AUTHORITY UNDER PNDT ACT & 1....Appellant(s)
Versus
JASHMINA DILIP DEVDA & 1....Respondent(s)
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Appearance:
MR HARSHEEL SHUKLA, ASST GOVERNMENT PLEADER for the
Appellant(s) No. 1 - 2
MS RV ACHARYA, ADVOCATE for the Appellant(s) No. 2
Page 1 of 7
C/LPA/311/2014 JUDGMENT
MR KRUNAL D PANDYA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 06/01/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The present appeal is filed challenging the judgement and order dated 05.08.2013 passed by the learned Single Judge in Special Civil Application No. 6215 of 2011 whereby the learned Single Judge allowed the writ petition and quashed and set aside the order passed by the District Authority.
2. The original petitioner - present respondent no. 1 is having a hospital at Ahmedabad known as Dev Hospital. The hospital of respondent no. 1 has been granted registration under the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (hereinafter referred to as the PNDT Act) for carrying out such genetic counseling, pre- natal diagnostic procedure and pre-natal diagnostic test. It is the case of respondent no. 1 that one Smt. Shilpa Punani of Wadhwan, District : Surendranagar had been admitted in the hospital on 10.09.2010 and 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 was developing, was likely to be a mentally retarded child if it is allowed to grow. Therefore, the husband Page 2 of 7 C/LPA/311/2014 JUDGMENT and family members of the patient agreed for termination of pregnancy and the operation was performed on 11.09.2010 after obtaining necessary consent. However pursuant toa complaint filed, the officials visited the hospital, prepared the panchnama and seized the sonography machine and certain files of the hospital. Thereafter, same has been confiscated and seal was applied. Therefore, respondent no. 1 approached the authority, who after following procedure, passed impugned order. Being aggrieved by the same, respondent no. 1 filed writ petition before the learned Single Judge which came to be allowed. Hence, the original respondent - present appellant has preferred the present appeal.
3. Mr. Harsheel Shukla, learned AGP appearing for the appellant has drawn the attention of this Court to the provisions prescribed under Section 20(3) of the PNDT Act and submitted that the authority has suo motu powers to exercise in larger public interest. He submitted that the State Appellate Authority has upheld the order passed under Section 20(3) of the PNDT Act considering the same that non mentioning of statutory provisions does not vitiate the proceedings in larger public interest.
4. Mr. Krunal Pandya, learned advocate appearing for respondent no. 1 supported the impugned order passed by learned Single Judge and submitted that the same having been passed in accordance with law does not call for interference by this Court.
5. We have read the impugned judgement and order passed by the learned Single Judge. The learned Single Judge has in Page 3 of 7 C/LPA/311/2014 JUDGMENT detail considered the submissions of both the sides and has come to the conclusion that the procedure as required under Section 20(1) & (2) of the Act have not been followed with regard to the issuance of the notice or the show cause notice by the appellant. Section 20 of the PNDT Act reads as under:
"20. Cancellation or suspension of registration.-
(1) The Appropriate Authority may suo moto , 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 sub-
sections (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 sub-section (1). "
5.1 The learned Single Judge in relevant paragraphs has observed as under:
"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 Page 4 of 7 C/LPA/311/2014 JUDGMENT denial of rules of natural justice. Though in the reply, it has been contended that such a contention is vague, the 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 Annexure-F 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 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 sub-section (1).
10. Thus in order to have an explanation or way out for non compliance, sub-section (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 sub-section (3) of Section 20, the Page 5 of 7 C/LPA/311/2014 JUDGMENT 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 Honble 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 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. "
6. We are of the opinion that no illegality is committed by the learned Single Judge in passing the above order. The appellant had not followed due procedure prescribed under the Act. The learned Single Judge is justified in coming to the conclusion that merely by stating or suggesting that power is provided in sub-section (3) of Section 20, the case does not Page 6 of 7 C/LPA/311/2014 JUDGMENT automatically fall under Section 20(3) nor it could be covered in such a manner and that admittedly no reasons are stated and that there is no public interest. We are in complete agreement with the reasonings adopted and findings arrived at by the learned Single Judge and therefore do not see any reason for causing interference.
7. In the premises aforesaid, appeal is devoid of any merits and is therefore dismissed accordingly. No costs.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 7 of 7