Gujarat High Court
Mahesh Chimanlal Jariwala vs Shilpa Yadav & 1....Opponent(S) on 14 February, 2017
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/MCA/3621/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR CONTEMPT) NO. 3621 of 2016
In
SPECIAL CIVIL APPLICATION NO. 16489 of 2010
With
CIVIL APPLICATION NO. 2550 of 2017
In
MISC. CIVIL APPLICATION NO. 3621 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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 ?
==========================================================
MAHESH CHIMANLAL JARIWALA....Applicant(s)
Versus
SHILPA YADAV & 1....Opponent(s)
==========================================================
Appearance:
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MISC. CIVIL APPLICATION No.3621 of 2016 :
SHRI A.D. OZA, ADVOCATE for the Applicant(s) No. 1
SHRI NIKHILESH J SHAH, ADVOCATE for the Opponent(s) No. 1
NOTICE SERVED BY DS for the Opponent(s) No. 1 - 2
CIVIL APPLICATION No.2550 of 2017 :
SHRI NIKHILESH J SHAH, ADVOCATE for the applicant.
SHRI A.D. OZA for opponent no.1.
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 14/02/2017
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) This Misc. Civil Application is filed under sections 10 and 12 of the Contempt of Courts Act, 1971 seeking prayers which read as under:
"13(A) This Hon'ble Court may be pleased to admit and allow this application.
(B) This Hon'ble Court may be pleased to initiate proceedings against the opponents under the Contempt of Courts Act, 1971 for committing willful and deliberate contempt of the order dated 25.01.2011 passed by the this Hon'ble Court in SCA No.164 89 of 2010 and further be pleased to punish the respondents for the same;
(C) This Hon'ble Court, with a view to purge the
contempt of the order of the Hon'ble Court, the
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respondents herein may be directed to comply the order passed by the Hon'ble Court and renew the registration of the application;
(D) Pending admission, hearing and final disposal of this application, this Hon'ble Court may be pleased to direct the respondents to purge themselves of the contempt by complying the order dated 25.01.2011 passed by this Hon'ble Court;
(E) 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."
2. The petitioner herein is a doctor, practicing as a Consultant Gynecologist. He runs clinics at two different places and such clinics are located at Bapunagar and Shahibaug in the city of Ahmedabad. As the petitioner is using sonography machines he has obtained certificate of registration for both the clinics as required under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as 'PC & PNDT Act') for the clinics which he is running, bearing Registration Certificate No.940 for Bapunagar Clinic and Registration Certificate No.679 for Shahibaug Clinic.
3. During the year 2010, a criminal case was registered against the petitioner on the ground that he had violated the provisions of the PC & PNDT Act and rules made thereunder and he was tried Page 3 of 18 HC-NIC Page 3 of 18 Created On Thu Feb 16 00:14:01 IST 2017 C/MCA/3621/2016 JUDGMENT for such offence in Criminal Case No.1212 of 2010 by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, in which judgment was delivered on 20.05.2014, whereby the petitioner herein was acquitted of such offence and such judgment has become final, as there was no appeal filed against such judgment.
4. Pursuant to registration of crime, during the year 2010, when sonography machine bearing PNDT Registration No.679 was sealed, he approached this Court by Special Civil Application No.16489 of 2010. This Court has granted interim relief in terms of paras 8(FF) and 8(G) of the petition, which read as under:
"9(FF) Pending admission hearing and final
disposal of the petition be pleased to stay the
execution, implementation and operation of the
decision taken by the District PNDT Advisory
Committee of the respondent no.1-Authority and also the order/ communication dated 28.12.2010 communicated/ passed by the respondent no.1- authority and further be pleased to allow the petitioner to practice his profession in furtherance of certificate with respect to the registration no.679 (Ann.:A)"
"(G) Pending admission hearing and final disposal of the petition be pleased to direct respondent authorities to remove the seal applied on the sonography machines and to restore the registration forthwith and further be pleased to allow the petitioner to continue his practice, pursuant to the certificate."Page 4 of 18
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5. By the aforesaid interim directions this Court has not only stayed execution, implementation and operation of the order of the authority dated 28.12.2010, but further directed to allow the petitioner to practice his profession in furtherance of certificate with respect to Registration No.679. In para 8(G) [sic., 9(G)] of the petition which is also granted, this Court directed the respondent authorities to remove the seal applied on the sonography machine and restore registration forthwith by allowing the petitioner to continue his practice, pursuant to the certificate. It is not in dispute that such interim order passed by this Court on 25.01.2011 is still in force and the writ petition, viz. Special Civil Application No.16489 of 2010 is pending before this Court. As per the provisions of the PC &PNDT Act, certificate of registration granted is valid for a period of five years and the same is to be renewed after the expiry of validity period.
6. Certificate of registration bearing No.679 was valid upto 08.10.2016. As such the petitioner has applied for renewal so as to continue his practice by using sonography machine and the same is rejected by respondent no.1-Appropriate authority by order dated 17.10.2016 stating that such application of the petitioner cannot be accepted for renewal, by placing reliance on Rule 18A(4)(ii) of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, framed under section 32 of the Pre-
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natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. On receipt of such communication from respondent no.1-Appropriate Authority, on behalf of the petitioner, contempt notice was issued on 22.10.2016 to respondent no.1. In the said notice it was stated that such rejection of renewal passed by respondent no.1 is nothing but deliberate and willful disobedience of order dated 25.01.2011 passed in Special Civil Application No.16489 of 2010 pending before this Court. It is categorically stated in the notice that by rejecting renewal on untenable grounds, respondent no.1 has deliberately made the interim relief non- operational and thereby denied the petitioner- doctor renewal of registration to practice by using the sonography machine. In the said notice, reference is made to judgment dated 20.05.2014 rendered in Criminal Case No.1212 of 2010, by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, whereby the petitioner herein was acquitted.
7. For the aforesaid contempt notice dated 22.10.2016, reply notice was sent on 21.11.2016. In the reply notice, while denying various allegations made in the Contempt Notice dated 22.10.2016, which was issued on behalf of the petitioner herein, again respondent no.1-Appropriate Authority defended refusal based on Rule 18A(4)(ii) of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996. In the said reply notice it is stated that if a court case is pending against any Page 6 of 18 HC-NIC Page 6 of 18 Created On Thu Feb 16 00:14:01 IST 2017 C/MCA/3621/2016 JUDGMENT doctor, as per rules, renewal is not possible. Further, a reference is made to communication dated 12.07.2016 issued by the Office of Commissioner of Health, Medical Service and Medical Education (Health Department), Sachivalaya, Gandhinagar and it is pleaded that respondent no.1 is bound to follow such instructions. On receipt of such reply, which is contrary to plain language of Rule 18A(4)(ii) of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, the petitioner has approached this Court by filing this application under sections 10 and 12 of the Contempt of Courts Act, 1971.
8. In this application, it is pleaded that the petitioner-doctor hails from a noble family and he is running two clinics at two different places in the city of Ahmedabad, for which he has obtained Registration Certificate No.940 (for Bapunagar Clinic) and Registration Certificate No.679 (for Shahibaug Clinic), to use sonography machine. It is categorically pleaded that when directions were issued by this Court to allow the petitioner to practice his profession in furtherance of Registration No.679 by removing seals, respondent no.1 herein has deliberately and intentionally violated such directions, by making the interim order non- operational, by refusing registration by misconstruing Rule 18A(4)(ii) of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, framed under section 32 of the Pre-natal Diagnostic Techniques Page 7 of 18 HC-NIC Page 7 of 18 Created On Thu Feb 16 00:14:01 IST 2017 C/MCA/3621/2016 JUDGMENT (Regulation and Prevention of Misuse) Act, 1994. It is submitted that it is also stated that as much as the petitioner herein was acquitted of Criminal Case No.1212 of 2010, which was filed against him for violation of the provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, there is no reason to deprive him renewal for using such registration, by respondent no.1. It is stated that by such highhanded and revengeful action on the part of the respondents, the petitioner is not in a position to use the sonography machine and is not able to examine the patients and is sending them to nearby radiologist, which is resulting in the patients incurring more expenses. It is stated that the petitioner is not able to do his profession on account of illegal action of the respondents in not renewing the certificate. It is categorically pleaded that respondent no.1 had rejected renewal application on the very same ground stated in order dated 17.10.2016, with respect to the clinic of the petitioner situated at Bapunagar, and when the petitioner pointed out that criminal case against the petitioner is now not pending, respondent no.1 renewed the certificate with respect to the clinic at Bapunagar. At the same time, the respondent on similar set of grounds, though the petitioner is entitled for renewal of registration, the same is refused by referring to the rule which is ex facie not applicable to the facts of the case. It is the say of the petitioner that such stand Page 8 of 18 HC-NIC Page 8 of 18 Created On Thu Feb 16 00:14:01 IST 2017 C/MCA/3621/2016 JUDGMENT of the respondents is deliberate, intentional and in violation of the orders passed by this Court depriving the petitioner- doctor right to practice by using the sonography machine bearing Registration Certificate No.679.
9. In this Misc. Civil Application, Affidavit-in-Reply and Further Affidavit are filed. Respondent no.1, while denying various allegations made by the petitioner, stated that the order dated 25.01.2011 passed by this Court in Special Civil Application No.16489 of 2010 is complied with by the respondents by removing the seals applied on sonography machine of the petitioner's clinic and registration was restored. Further, it is stated that the act of the answering respondent of non-acceptance of renewal application/ refusal of renewal registration of the petitioner under the PC & PNDT Act is based on Rule 18A(4)(ii) of the Pre- Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 and the same is in consonance with the statutory provisions, but not with intention to flout the orders of this Court. It is stated that registration to practice, as per the provisions of the PC & PNDT Act was valid for five years, which was valid upto 18.10.2011. Thus, registration under the Act is no longer in existence, after 08.10.2016 and application for renewal beyond 08.10.2016 has been rejected on the basis of Rule 18A(4)
(ii) of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996. It is also the case of the Page 9 of 18 HC-NIC Page 9 of 18 Created On Thu Feb 16 00:14:01 IST 2017 C/MCA/3621/2016 JUDGMENT respondents that as renewal was not pleaded and sought in Special Civil Application No.16489 of 2010, the same cannot be read into interim relief granted by this Court. Though it is not strictly relevant for the purpose of answering the allegations made by the petitioner, the answering respondent also made some unwanted statements in the Affidavit-in-Reply, which read as under:
"6. Even otherwise, the Hon'ble High Court can never be expected to even think of passing orders ignoring the statutory provisions of the law. .. .."
"7. .. ..
If this is permitted, it frustrates one of the priority of the Hon'ble Chief Justice of any of the Hon'ble High Court of reducing the backlog or discouraging the piling up of matters. .. .."
10. Affidavit-in-Rejoinder is filed on behalf of the petitioner, to the reply filed by respondent no.1. In the Affidavit-in-Reply again reference is made to Rule 18A(4)(ii) of the Pre-Conception and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 and it is pleaded that such rule is not applicable at all. It is stated that the aforesaid rule provides refusal of registration, if any case is pending in any court against the petitioner for violation of the provisions of PC&PNDT Act only. It is submitted that as criminal case filed against the petitioner for violation of the provisions of the PC&PNDT Act and he was acquitted on 20.05.2014, as such the judgment has become final and the petition Page 10 of 18 HC-NIC Page 10 of 18 Created On Thu Feb 16 00:14:01 IST 2017 C/MCA/3621/2016 JUDGMENT filed by the petitioner in this Court under Article 226 of the Constitution of India cannot be taken as a case pending against the petitioner for the purpose of invoking Rule 18A(4)(ii) of the Pre- Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996. It is pleaded that such stand of the respondents is only to defeat the order passed by this Court and is vindictive, mala fide, prejudicial and per se illegal.
11. Additional Affidavit is filed by respondent no.1. In the Additional Affidavit respondent no.1 has reiterated her stand that interim relief has not dealt with renewal, as such it cannot be said that the respondents have violated the directions issued by this Court. While stating that interim directions were implemented, it is stated that on 25.01.2011, interim order was passed, and on 01.02.2011 interim order is implemented by restoring registration and by removing seals applied on sonography machine and renewal was also effected on 07.10.2011 and operated upto 08.10.2016. In Further Affidavit a categorical statement is made that registration of the petitioner's other clinic, was carried out as there was no case pending under the PC & PNDT Act.
12. After the matter was heard on earlier occasions, during the course of hearing, Additional Affidavit is filed by the respondent- Appropriate Authority. In the Additional Affidavit it is further pleaded that in case this Court comes to the conclusion that the Page 11 of 18 HC-NIC Page 11 of 18 Created On Thu Feb 16 00:14:01 IST 2017 C/MCA/3621/2016 JUDGMENT petitioner had violated the provisions of the PC & PNDT Act or Rules, the Appropriate Authority will be justified in denying renewal. Further, conditional apology is tendered confining to the statements which have been made in the previous affidavits for which this Court felt should have been made.
13. Heard Shri A.D. Oza, learned counsel for the petitioner and Shri Nikhilesh J. Shah, learned counsel for respondent no.1. The learned counsel pointedly referred to the directions issued by this Court stating that this Court has granted interim orders; not only order passed by respondent no.1-authority on 28.12.2010 is stayed, but with specific direction to allow the petitioner to practice his profession in furtherance of certificate with respect to registration no.679 of removing seals of sonography machine. Respondent no.1 has correctly understood the order, removed the seals and allowed the petitioner to operate the sonography machine and also effect renewal of registration on 07.11.2011, which was valid upto 08.10.2016. Further when application is made for renewal, respondent no.1- authority has applied Rule 18A(4)(ii) of the Pre- Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, which cannot be applied and such refusal is deliberate, intentional and to make the interim order passed by this Court unenforceable. It is submitted that Rule 18A(4)(ii) of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 operates empowering the authority to Page 12 of 18 HC-NIC Page 12 of 18 Created On Thu Feb 16 00:14:01 IST 2017 C/MCA/3621/2016 JUDGMENT refuse renewal only in the event when a case is pending against the petitioner for violation of the provisions of PC & PNDT Act. It is contended that Criminal Case No.1212 of 2010 which was registered against the petitioner for violation of the provisions of the PC & PNDT Act and was pending before the learned Additional Chief Metropolitan Magistrate, Ahmedabad, was adjudicated and the petitioner is acquitted. In spite of the same, willfully and deliberately, respondent no.1- authority has referred to such rule with reference to the Special Civil Application filed by the petitioner before this Court and rejected renewal. It is further submitted that the conduct of respondent no.1 for willful and deliberate violation is evident from the fact that even with regard to other clinic owned by the petitioner for which registration certificate bearing no.940 was issued to use sonography machine, same stand was taken by the respondent- authority for refusal of registration, on submitting representation by the petitioner, stating that the rule cannot be applied for refusal of registration. Respondent no.1- authority has correctly understood and renewed registration. Different yardsticks are applied in denying use of sonography machine by respondent no.1- authority. It is submitted that the very order passed by this Court directing the respondents to allow the petitioner to practice by permitting use of sonography machine, the respondents under the guise of refusal of renewal, violated the directions issued by this Court deliberately, intentionally and vindictively.
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14. Learned counsel Shri A.D. Oza placed reliance on the judgment of the Hon'ble Supreme Court in the case of Principal, Rajni Parekh Arts, K.B. Commerce and BCJ Science College, Khambhat and another Vs. Mahendra Ambalal Shah, reported in (1986) 2 SCC 560, in support of his argument and contended that in respect of blatant, wilful and deliberate violation of directions issued by this Court, respondent no.1- contemner has not even tendered apology. It is submitted that in the aforesaid judgment of the Hon'ble Supreme Court, attempt to tender apology at a belated stage was not accepted observing that it would encourage litigants to flout the orders of the Court with impunity. It is submitted that though respondent no.1 referred to Additional Affidavit tendering apology, but such an apology is also conditional one, only with regard to statements made by respondent no.1 in the earlier Affidavit-in-Reply and Further Affidavit-in-Reply, but not with reference to violation of directions issued by this Court. The learned counsel also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ranveer Yadav Vs. State of Bihar, reported in 2010 (2) GLH 703 (SC) in support of his argument that provision under the Contempt of Courts Act, 1971 must be given broad sweep so as to include within it every attempt of the contemners to interfere with the due course of judicial proceedings. It is submitted that having violated the order deliberately, the respondents may not be allowed to defend the Page 14 of 18 HC-NIC Page 14 of 18 Created On Thu Feb 16 00:14:01 IST 2017 C/MCA/3621/2016 JUDGMENT contemptuous action, under the guise of refusal of registration by applying rule, which is ex facie not applicable.
15. On the other hand Shri Nikhilesh J. Shah, learned counsel appearing for respondent no.1 submits that renewal was not the subject matter of the earlier petition. In that view of the matter refusal of renewal by applying Rule 18A(4)(ii) of the Pre- Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 cannot be construed as willful and deliberate violation of the directions issued by this Court. It is contended by learned counsel Shri Shah that the directions issued by this Court in order dated 25.01.2011 passed in Special Civil Application No.16489 of 2010, are fully complied with by removing seal applied on sonography machine and permitting the petitioner to operate the machine till the expiry of renewal time. It is submitted that refusal to renew is an independent action and it cannot be said that it constitutes flouting of orders and directions issued by this Court.
16. After the arguments from both the sides concluded on 31.01.2017, this application was ordered to be placed under the caption, "For Orders" on 10.02.2017. In the meanwhile, respondent no.1 herein has filed Civil Application No.2550 of 2017 on 06.02.2017. The said Civil Application is filed with the prayers which read as under:
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(B) accept unconditional apology tendered by the
applicant herein, permits withdrawal of the
affidavits or ignore the contents of affidavits and may be pleased to dispose of the main application being MCA 3621 of 2016 accordingly.
(C) pass such other and further orders as may be deemed fit in the interest of justice."
17. When this application was listed along with the Misc. Civil Application, affidavit in reply on behalf of opponent no.1 is filed opposing the prayer sought in the Civil Application. Learned counsel Shri A.D. Oza appearing for the respondent in the Civil Application and the applicant in the Misc. Civil Application for Contempt submitted that as much as the respondent has committed contempt by violating the directions issued by this Court willfully and deliberately, and has come up with this application to accept the unconditional apology after arguments are concluded on 31.01.2017, as such he submits that it is not a fit case to accept the unconditional apology and to drop the contempt proceedings initiated against the applicant in the Misc. Civil Application.
18. Along with Civil Application No.2550 of 2017, the applicant also enclosed material, viz. Certificate of Registration issued in Form-B renewing Registration Certificate of the application on 04.02.2017.
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19. In the Affidavit in Reply and Further Affidavit filed in the main Misc. Civil Application, initially the respondent has taken stance that in absence of any directions for renewal of registration certificate issued under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, there was no violation of directions issued by this Court. Further, realizing that the said stance is not correct, in Civil Application No.2550 of 2017, the respondent-contemner has tendered unconditional apology and sought permission for withdrawal of affidavits filed in the Misc. Civil Application earlier. While offering unconditional apology, the respondent has also expressed her regrets for the inconvenience caused and further ensured to implement the orders of this Court whenever directions are issued. Looking at the initial stance of the respondents and in the Affidavit in Reply filed in the application, we have heard the matter, but even before orders are pronounced as the Civil Application is filed by the respondent-contemner, by which unconditional apology is tendered and has withdrawn her stance made in the earlier application and purged the contempt by renewing the registration certificate, we deem appropriate that it is not a fit case to proceed further and to close the proceedings by accepting the unconditional apology, for the delay caused in implementing the directions of this Court. We place on record the proceedings, viz. Certificate of Registration dated 04.02.2017 bearing Registration No.679, in favour of the Page 17 of 18 HC-NIC Page 17 of 18 Created On Thu Feb 16 00:14:01 IST 2017 C/MCA/3621/2016 JUDGMENT applicant.
20. In view of the observations and findings recorded above, we allow Civil Application No.2550 of 2017 and consequently dispose of Misc. Civil Application No.3621 of 2016, accepting the unconditional apology tendered by respondent no.1 herein. Notices issued to respondents no.1 and 2 in the Misc. Civil Application hereby stand discharged. No order as to cost.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) karim Page 18 of 18 HC-NIC Page 18 of 18 Created On Thu Feb 16 00:14:01 IST 2017