Punjab-Haryana High Court
Neenu Kalra vs Civil Surgeon Yamuna Nagar And Others on 7 December, 2021
Author: Raj Mohan Singh
Bench: Raj Mohan Singh
CWP Nos.5778 and 22601 of 2021(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision:07.12.2021
1. CWP No.5778 of 2021(O&M)
Dr. Neenu Kalra
... Petitioner
Versus
Civil Surgeon, Yamuna Nagar and others
... Respondents
2. CWP No.22601 of 2021(O&M)
Dr. Neenu Kalra
... Petitioner
Versus
State of Haryana and others
... Respondents
CORAM:-HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr. Lekh Raj Sharma, Advocate
for the petitioner.
Mr. Vivek Chauhan, Addl., A.G., Haryana.
***
RAJ MOHAN SINGH, J.
[1]. Vide this common order, CWP No.5778 of 2021 titled Dr. Neenu Kalra Vs. Civil Surgeon, Yamuna Nagar and others 1 of 11 ::: Downloaded on - 16-01-2022 20:55:40 ::: CWP Nos.5778 and 22601 of 2021(O&M) 2 and CWP No.22601 of 2021 titled Dr. Neenu Kalra Vs. State of Haryana and others are being disposed of.
[2]. Petitioner has preferred CWP No.5778 of 2021 for issuance of an appropriate writ, order or direction in the nature of certiorari for setting aside the order of seizure of ultrasound centre dated 05.02.2021 passed by Deputy Civil Surgeon, Yamuna Nagar, whereby ultrasound machines No. Aloka Alpha (M 02548) and Toshiba SSA 320A (postable) (E0553401) have been seized by the respondents in violation of provisions of PNDT Act 1994. Petitioner also sought writ in the nature of mandamus, directing respondents to decide the application for renewal dated 09.02.2021 including the representation dated 03.03.2021.
[3]. Notice of motion was issued on 30.07.2021 by passing the following order:-
"This matter is being taken up for hearing through video conferencing due to outbreak of pandemic, COVID-19.
Learned counsel for the petitioner submits that petitioner is duly registered with the Haryana Medical Council, Panchkula and was running the ultrasound centre, which was duly registered with the appropriate authority under the PNDT Act and Rules. Certificate issued to the petitioner for usage of ultrasound machines was valid till 16.12.2020. However, due to the peculiar circumstances caused on account of outbreak of pandemic COVID-19, consequent shortage of staff as well as certain personal difficulties faced by petitioner, application for renewal of the certificate could not be submitted within the 2 of 11 ::: Downloaded on - 16-01-2022 20:55:40 ::: CWP Nos.5778 and 22601 of 2021(O&M) 3 stipulated period. Premises of the petitioner were inspected on 05.02.2021 and ultrasound machines on the premises were sealed on the ground that registration certificate has expired and application for renewal of the same was not filed. Petitioner immediately submitted the application for renewal on 09.02.2021 and deposited the requisite fee of Rs.17,500/- as well. However, no action is being taken by the authorities to renew petitioner's certification, thereby leading to a complete violation of petitioner's right to carry on her livelihood. Petitioner's ultrasound centre is lying closed. Learned counsel further submits that petitioner has been carrying on with her work since the last 15 years and there had never been any instance of any misuse at her end.
Notice of motion.
Mr. Ashish Yadav, Addl. A.G., Haryana, accepts notice on behalf of all the respondents and prays for a short adjournment to seek instructions.
At request of learned counsel for the State, adjourned to 11.08.2021.
30.07.2021 (Lisa Gill)
Sunil Judge"
[4]. Evidently, petitioner is a qualified doctor as M.B.B.S.
M.D (Obstetrician and Gynecologist) duly registered with Haryana Medical Council, Panchkula. The ultrasound centre which was being run by the petitioner was registered with an appropriate authority under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and Rules of 1996 framed thereunder. Petitioner got ultrasound machines registered in the year 2005 and registration certificate 3 of 11 ::: Downloaded on - 16-01-2022 20:55:40 ::: CWP Nos.5778 and 22601 of 2021(O&M) 4 was issued under Chapter VI of the said Act read with Rules 4, 5 and 6 of the Rules and under Rule 7, the certificate was valid for 5 years. Thereafter, certificate was renewed in the year 2010 and 2015 and it was lastly valid upto 16.12.2020. Due to the currency of COVID-19, illness of her close relative, shifting of the old staff and due to misconception, the petitioner could not get timely renewal of certificate of the ultrasound machines beyond 16.12.2020. Petitioner has a very clean record for running this ultrasound centre for more than 30 years. Petitioner is a senior member of IMA Fraternity of Jagadhari, District Yamuna Nagar.
A permanent registration certificate dated 15.10.2020 was issued, which is valid upto 14.10.2025. The said certificate has been issued under the Haryana Medical Council Act, 1960 having registration No.HN001925 with original date of registration as 19.10.2005. For running of ultrasound centre, the petitioner got her machines registered in the year 2005 under the rules. Although, renewal was due on 16.10.2020 and the petitioner was supposed to make an application for renewal before 30 days from the date of expiry, but due to illness of her close relative, situation arising out of COVID-19, shifting of old staff and due to misconception, the period of expiry could not be noticed and application for renewal of certificate of ultrasound machines could not be timely made. Petitioner was required to submit the monthly report online for conducting the sonography
4 of 11 ::: Downloaded on - 16-01-2022 20:55:40 ::: CWP Nos.5778 and 22601 of 2021(O&M) 5 test to the Civil Surgeon, Yamuna Nagar. Petitioner had been doing the same regularly and furnished report online to respondent No.1 for the month of December, showing the total test conducted in the month of December to be 11 and even physical record was also available for physical verification. Petitioner also submitted online report for the month of January, showing 29 sonography test conducted.
[5]. Respondent No.2 raided the ultrasound centre on 05.02.2021 and sealed the ultrasound machines on the ground that registration certificate had expired on 16.12.2020 and no renewal application was filed. Petitioner immediately submitted the application for renewal of ultrasound machines on 09.02.2021 and deposited the requisite fee amounting to Rs.17,500/- through Punjab National Bank vide cheque No.367836. Petitioner also filed representation to the respondents on 03.03.2021 for de-sealing the ultrasound machines and renewal of ultrasound centre. [6]. In the aforesaid writ petition, the petitioner has challenged to the order of seizure dated 05.02.2021, whereby the ultrasound machines were seized.
[7]. Perusal of spot memo would show that on 05.02.2021, a team consisting of Dr. Rajesh Kumar, Dy. Civil Surgeon and Dr. Vijay Vivek visited Kalra Eye and Maternity Hospital, Model Town, PNDT, Reg. No.45 for routine inspection.
5 of 11 ::: Downloaded on - 16-01-2022 20:55:40 ::: CWP Nos.5778 and 22601 of 2021(O&M) 6 It was observed that registration certificate had expired on 16.12.2020 and the machines were sealed.
[8]. Perusal of the aforesaid order of seizure would show that no independent witness was joined at the time of raid and seizure of the ultrasound machines.
[9]. Learned counsel for the petitioner submitted that the order of seizure of ultrasound machines was in utter violation of Rule 12 of the Rules, which prescribes that the authority/officer authorized in the context of conducting raid, can only enter and search the premises of the petitioner centre in the presence of two or more independent witnesses for the purposes of search and examination of any record, register, document, book, pamphlet, advertisement or any other material. List of document/record was required to be prepared under Rule 12(2) in duplicate at the place of effecting the seizure. Both copies of such list were required to be signed on every page by the Appropriate Authority or officer authorized in this behalf and by the witnesses to the seizure: Provided that the list may be prepared in the presence of the witnesses at the place other than the place of seizure, if, for the reasons to be recorded in writing, it is not practicable to make the list at the place of effecting the seizure.
[10]. Thereafter, the case was taken up on 03.09.2021 and following order was passed:-
6 of 11 ::: Downloaded on - 16-01-2022 20:55:40 ::: CWP Nos.5778 and 22601 of 2021(O&M) 7 "This matter is being taken up for hearing through video conferencing due to outbreak of the pandemic, COVID-19.
Learned counsel for the State while referring to the reply filed on behalf of respondents No.1 to 4 submits that there is no provision for renewal registration certificate under the PNDT Act on an application filed after expiry of the tenure.
Mr. Yadav submits that in case the petitioner applies for fresh registration, the same shall be considered in accordance with law.
Mr. Sharma, learned counsel for the petitioner submits that application for fresh registration alongwith requisite fee etc. shall be submitted within two weeks.
In case such an application is submitted the same be considered by the competent authority.
At request, adjourned to 06.10.2021.
September 03, 2021 (LISA GILL)
JUDGE"
[11]. Perusal of the reply would show that respondents
No.1 to 4 have taken an objection that there is no provision for renewal of certificate under the PNDT Act on an application filed after expiry of the tenure.
[12]. Learned State counsel submitted that if the petitioner applied for fresh registration, the same can be considered in accordance with law. Petitioner undertook to file an application for fresh registration along with requisite fee. Thereafter, the petitioner did the compliance of filing of the fresh application along with requisite fee.
7 of 11 ::: Downloaded on - 16-01-2022 20:55:40 ::: CWP Nos.5778 and 22601 of 2021(O&M) 8 [13]. The said application has been declined by passing speaking order dated 20.10.2021 by respondent No.2, which is being assailed by the petitioner in CWP No.22601 of 2021 titled Dr. Neenu Kalra Vs. State of Haryana and others. [14]. With the passing of order dated 20.10.2021 by respondent No.2/appropriate authority-cum-PNDT-cum-Civil Surgeon, virtually CWP No.5778 of 2021 has become infructuous. Ordered accordingly.
[15]. Learned counsel for the petitioner has assailed the order dated 20.10.2021 on the premise that even if, a complaint under Sections 18, 23, 25 of the PNDT Act 1994 read with Rule 8 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection Rules), 1996 has been filed against the petitioner, the same is not an impediment in accepting the application for renewal of ultrasound machines/centre. Learned counsel further submitted that the petitioner has a clean record and is a qualified doctor. She has served Haryana Government till September 2004. She is a Senior Laparoscopic Surgeon and has certificate of operating more than 10,000 tubal legations laproscopically. Petitioner was also member of advisory committee to the appropriate authority under PNDT and has experience of more than 30 years with neat and clean record. Petitioner is also a senior member of IMA Fraternity, Jagadhari, District Yamuna Nagar and the petitioner got the ultrasound 8 of 11 ::: Downloaded on - 16-01-2022 20:55:40 ::: CWP Nos.5778 and 22601 of 2021(O&M) 9 centre registered with machines in the year 2005. The registration certificate was issued under the rules. The certificate was renewed from time to time and it was valid upto 16.12.2020. Due to the currency of COVID-19, illness of her close relative, shifting of the old staff and due to misconception, the petitioner could not timely apply for renewal of the certificate beyond 16.12.2020. In the meantime, raid was conducted on 05.02.2021. The petitioner promptly applied for renewal of certificate on 09.02.2021.
[16]. Thereafter, in compliance of order dated 03.09.2021 passed by the High Court, petitioner also filed fresh application for registration along with requisite fee. [17]. Learned counsel further submitted that vires of Rule 18-A(4)(ii) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 was assailed before the Bombay High Court, wherein learned Assistant Solicitor General for the Union of India stated that the aforesaid rule shall not be construed as total prohibition to receive application for renewal or fresh registration of centre/machines. Even pendency of criminal case, shall not be a reason to deny renewal of registration. There is no allegation that at the time of inspection of the clinic, there was any discrepancy viz-a-viz the maintenance of the record, nor was any complaint in respect of illegal sex determination of fetus. Learned counsel 9 of 11 ::: Downloaded on - 16-01-2022 20:55:40 ::: CWP Nos.5778 and 22601 of 2021(O&M) 10 further relied upon order dated 26.05.2017 passed in CWP No.7690 of 2017 titled Dr. Neelam Mittal Vs. Union of India and others and also order dated 27.02.2017 passed in CWP No.2400 of 2017 titled Dr. Kanwal Raj Vs. Union of India and others and submitted that pendency of criminal complaint under Sections 18, 23 and 25 of the PNDT Act and Rules framed thereunder, shall not be construed as a bar for seeking renewal/fresh registration of the centre/machines. Fresh registration has been declined and de-sealing of the machines has also been declined on the premise that with the filing of criminal complaint, machines would acquire the status of case property and machines are to be produced as case property in the Court as and when required.
[18]. As per ratio of afore-referred cases, there is no bar for renewal of certificate of machines as well as fresh registration of the same, however, a rider can be placed that in case, the case properties are required to be produced in the Court at any time, the petitioner shall produce the same without any objection and to that extent, the petitioner can be directed to execute undertaking/surety before the concerned Court, where the complaint under Sections 18, 23, 25 of the PNDT Act is pending. [19]. For the reasons recorded hereinabove, I deem it appropriate to dispose of CWP No.22601 of 2021 with a direction to the petitioner to execute an undertaking as well as requisite 10 of 11 ::: Downloaded on - 16-01-2022 20:55:40 ::: CWP Nos.5778 and 22601 of 2021(O&M) 11 surety before the concerned Court, where criminal complaint under Sections 18, 23, 25 of the PNDT Act is pending. Subject to executing the aforesaid undertaking/surety to the satisfaction of the concerned Court, machines in question shall be de-sealed and be handed over to the petitioner. Petitioner shall produce the case property in the Court as and when required by the Court in accordance with law.
[20]. With the aforesaid observations, CWP No.22601 of 2021 stands disposed of.
(RAJ MOHAN SINGH)
JUDGE
07.12.2021
Prince
Whether reasoned/speaking Yes/No
Whether reportable Yes/No
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