Chattisgarh High Court
State Of Chhattisgarh vs Dr. (Smt.) Kiran Agrawal 11 Wa/255/2017 ... on 1 October, 2018
Bench: Ajay Kumar Tripathi, Parth Prateem Sahu
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 726 of 2018
1. State Of Chhattisgarh Through The Secretary, Government Of
Chhattisgarh, Department Of Health And Family Welfare Mantralaya,
Mahanadi Bhawan New Raipur District Raipur Chhattisgarh ( Respondent
No. 2)
2. State Of Chhattisgarh Through Collector , Ex - Officio Chairman P C - P N
D T , Act, Through - Appropriate Authority, Ambikapur District Surguja
Chhattisgarh. ( Respondent No. 1)
3. Nodal Officer, P C - P N D T Act, Ambikapur District Surguja Chhattisgarh.
( Respondent No. 3)
4. Chief Medical And Health Officer, Ambikapur District Surguja
Chhattisgarh. ( Respondent No. 4)
---- Appellants
Versus
• Dr. (Smt.) Kiran Agrawal W/o Dr. Lalit Agrawal Aged About 47 Years R/o
Arogya Niketean Hospital Agrasen Marg, Agrasen Chowk, Ambikapur
District Surguja Amibikapur Chhattisgarh. (Petitioner )
---- Respondent
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For Appellants/State : Shri PN Bharat, Additional AG For Respondent : Smt Fouzia Mirza, Advocate
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Hon'ble Shri Ajay Kumar Tripathi, Chief Justice Hon'ble Shri Justice Parth Prateem Sahu Judgment on Board Per Ajay Kumar Tripathi, Chief Justice 01.10.2018
1. Heard learned counsel for the parties.
2. Learned Single Judge has allowed the writ application. State is in appeal against the order dated 03.07.2018 passed by learned Single Judge, who allowed the writ application and held the sealing of ultrasound machines of the private respondent- hospital by the authorities to be an illegal exercise of power.
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3. The private respondent was running a hospital in the name of Arogya Niketan Hospital at Ambikapur. She holds a valid certificate of registration for performing sonography or ultrasound. This certification has been issued by the competent authority in exercise of power under Section 19(1) of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, the Act 1994). The license is valid till 10.07.2021.
4. An inspection was carried out by a team of National Inspection and Monitoring Committee along with certain State representatives as part of the direction issued by the Hon'ble Apex Court in the matter of Centre for Enquiry into Health and allied Themes (CEHAT) and others Vs Union of India and others reported in AIR 2003 SC 3309. Allegation was that certain irregularities were found in maintaining the images or records of the sonography and therefore, the Committee decided to seal the ultrasound machine. This decision of the Committee gave a cause of action for the private respondent to challenge the same under Article 226 of the Constitution of India.
5. The learned Single Judge has taken note of the various statutory provisions under the Act and specially, the power of search and seizure granted under Section 30 of the Act. So far as the relevant statutory provision vesting power upon certain authority and mandate to exercise such authority was not the issue before the Court. The manner in which the Committee went ahead and did sealing after so called inspection was the issue under consideration. Learned Single Judge recorded the wa 726 of 2018 3 following findings in the impugned order, specially in paragraphs 16 to 18 as below:
"16. Reverting to the facts of the present case, it appears from the record that that the petitioner's ultrasound machine was sealed by team of NIMC and after sealing the machine, the said committee recommended to the District Magistrate- cum-Appropriate Authority to seal sonography machine of the petitioner. Nothing has been brought on record to demonstrate that NIMC inspection team was authorized to exercise jurisdiction under Section 30(1) of the Act of 1994 and to seal the ultrasound machine of the petitioner. The act of recommendation by the said committee read with notification dated 12.02.207 would clearly indicate that the inspection team (NIMC) was not authorized to exercise power of sealing under Section 30(1) of the Act of 1994 and the District Magistrate being the appropriate authority under Section 17(2) of the Act of 1994 has not exercised the power under Section 30(1) of the Act of 1994. Therefore, I am of the considered opinion that order passed sealing the ultrasound machine of the petitioner is absolutely without jurisdiction and without authority of law and the order impugned deserves to be set aside.
17. By virtue of the provisions contained in Section 30(2) of the Act of 1994, provisions contained in CrPC relating to search & seizure has been made applicable, to the search & seizure made under this Act. In the present case, neither search has been made nor seizure has been made, only ultrasound machine has been sealed. For unsealing no such provision in CrPC has been brought to my notice, therefore, plea of alternative remedy is over-ruled.
18. As a fallout and consequence of the above-stated discussion, sealing of ultrasound machine of the petitioner at her hospital premises is hereby quashed. The respondents are directed to unseal ultrasound machine of the petitioner wa 726 of 2018 4 forthwith upon receipt of certified copy of this order. While unsealing, the respondents are at liberty to collect data from ultrasound machine for the purpose of evidence."
6. It is also evident that the sealing was ordered to be done by the Inspection Committee and then the matter was reported to the District Magistrate to formalise such a decision.
7. The facts being such, obviously, the power not vested in authorities had been exercised having consequences for the private respondent.
8. A line of argument was made during the course of hearing of the appeal by learned Additional Advocate General that the District Magistrate has due powers to further delegate or nominate any other Executive Magistrate to exercise such power and from the order of sealing contained in Annexure-P/1 to the writ application, the signature of the Deputy Collector is also visible.
9. This Court is surprised to see that as a justification, Annexure-A/3 has been annexed by the State in the memo of appeal which is supposed to be the office memo dated 02.11.2017 delegating power under Section 30 read with Rule 11 and 12 of the Act to one Ms Nayantara, Deputy Collector.
10. The said Annexure itself indicates that it is a ready-made cyclostyled kind of office memo, where, details are filled in at drop of a hat and the same has not even been issued under the signature of the District Magistrate of the district but that of an Additional Collector.
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11. Delegation of power if contemplated under a statutory provision is permissible but then, such delegation of power has to be in accordance with the mandate laid down therein. Section 17 is the appropriate Section of the Act, where the State Government can notify by a notification in official gazette one or more appropriate authorities for the whole or part of the State for the purposes of this Act. Further the State Government has been further given leeway to notify District Magistrates in every district as the appropriate authority. It is further also noticed that the District Magistrates have been further given powers to delegate under the said legislation but a delegatee cannot further re-delegate his powers in a manner contrary to what the statute lays down. If the appointment of the District Magistrate is required to be made by a notification in the official gazette then he in furtherance to that power to sub-delegate cannot notify any other appropriate authority by some kind of office order as that will not be permissible under law.
12. Principle is well settled that if an act is required to be done or performed in a particular manner by the delegatee, the sub-delegatee cannot be conferred that power in any other fashion or manner.
13. In view of the same, the decision of the learned Single Judge cannot be said to be erroneous.
14. The appeal has no merit. It is dismissed.
Sd/- Sd/-
(Ajay Kumar Tripathi) (Parth Prateem Sahu)
Chief Justice Judge
padma