Gujarat High Court
Jasmina Dilip Devda vs District Appropriate Authority & 2 on 17 July, 2015
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/SCA/11444/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11444 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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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JASMINA DILIP DEVDA....Petitioner(s)
Versus
DISTRICT APPROPRIATE AUTHORITY & 2....Respondent(s)
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Appearance:
MR KRUNAL D PANDYA, ADVOCATE for the Petitioner(s) No. 1
MR. VANDAN BAXI, AGP, for the Respondent(s) No. 2
MR NIKHILESH J SHAH, ADVOCATE for the Respondent(s) No. 1
MR. DEVANG VYAS, ASSISTANT SOLICITOR GENERAL OF INDIA, for
respondent No. 3
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C/SCA/11444/2015 JUDGMENT
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 17/07/2015
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI) Rule. Rule is waived by learned advocate Mr. N.J. Shah for respondent No. 1. Learned AGP Mr. Vandan Baxi waives service of rule on behalf of respondent No. 2 and learned Assistant Solicitor General of India Mr. Devang Vyas waives service of rule on behalf of respondent No. 3.
2. After hearing learned counsel for the parties, we are of the opinion that we need not go to the challenges of various Rules and it is kept open to be decided.
3. The petitioner is the owner of ultra sound clinic. Sonography machine was used for the purpose of diagnosis in day today practice. As per the medical requirement, the petitioner had applied for registration as required under Preconception and Prenatal Diagnostic Techniques (Prohibition of sex selection) Act, 1994 ("the Act" for short) which was granted to the petitioner on 24.5.2010 and valid upto 23.5.2015. The petitioner had applied for renewal of registration on 5.5.2015 which has been returned by respondent No. 1 along with the office order mentioning that in view of provisions of Rule 18A(4)(iii) of amended Rule, 2014, the petitioner's licence was not renewable. It is this order which has been challenged by the petitioner in this petition.
4. For the purpose of the present petition, the relevant Page 2 of 5 C/SCA/11444/2015 JUDGMENT facts are extracted below:
"After having registration under PNDT Act, the petitioner was using the sonography machine regularly and following the requirement of sending of Form-F. On 21.10.2010 the authority sealed sonography machine of the petitioner for some infirmities found in Form F. Date of occurrence and detail of facts thereafter are narrated as under:
25.10.2010 - Registration of the petitioner under PNDT Act was suspended by the authority.
28.10.2010 Appeal No. 05/10 was preferred by the petitioner before State Appropriate Authority (Appellate Authority under the Act).
29.10.2010 Criminal case No. 1319/10 was filed against the petitioner in the Metropolitan Magistrate Court, Ahmedabad, on the basis of the same finding for which the sonography machine of the petitioner was sealed and registration was suspended.
21.12.2010 State Appropriate Authority passed an order asking the authority to clarify whether the order of the Authority dated 25.10.2010 is under Section 20(3) or Section 20(1) and (2)? 29.12.2010 The Authority passed fresh order declaring that the initial order dated 25.10.2010 was under Section 20(3). 19.1.2011 Appeal was preferred once again by the petitioner against both the orders dated 25.10.2010 and 29.12.2010. 17.3.2011 State Appropriate Authority passed an order in Appeal No. 2 of 2011. The appeal preferred by the petitioner was rejected.
9.5.2011 SCA No. 6215/2011 was preferred by the petitioner before the Hon'ble High Court of Gujarat challenging the order dated 17.3.2011 of State Appropriate Authority and also the original orders of the Authority.
5.8.2013 Hon'ble High Court allowed the SCA and set aside the orders of State Appropriate Authority and also the Authority.
Page 3 of 5C/SCA/11444/2015 JUDGMENT Thus it amounts to revocation of the suspension of registration of the petitioner under PNDT and also act of the Authority of sealing the sonography machine to be illegal.
8.1.2014 Order passed by Hon'ble High Court of Gujarat in MCA No. 2944/2013 which was preferred by the petitioner for clarification of the order dated 5.8.2013 passed in SCA No. 6215/11 asking the State as well as the Authority not to frustrate or make an attempt to deliberately disobey the order passed in SCA No. 6215 of 2011.
9.1.2014 MCA No. 2944/13 is disposed of as the Authority had opened the seal applied on the sonography machine of the petitioner and also revoked the suspension of the registration of petitioner under PNDT Act.
6..1.2015 LPA No. 311/14 preferred by the State challenging the judgement of learned Single Judge passed in SCA No. 6215/11, came to be rejected by the Hon'ble Division Bench.
5. From the aforesaid facts, it is clear that this Court by judgement dated 5.8.2013 allowed the writ petition and quashed the order passed by respondent No. 2 on 17.3.2011 confirming the order passed by the District Authority on 29.12.2010. Operative paragraph of the judgement in paragraph No. 14 is extracted below:
"In the circumstances, the present petition stands allowed in terms of para No. 21(A) and 21(AA). The impugned order passed by the respondent No. 1 in Appeal No. 2 of 2011 dated 17.3.2011 confirming the order passed by the District Authority dated 29.12.2010 is hereby quashed and set aside. Rule is made absolute. No cost."
6. Thereafter, the petitioner filed MCA which was disposed of by learned Single Judge on 9.1.2014 and LPA filed by respondent No. 2 was dismissed by the Division Bench of this Court on 6.1.2015. This order has become final as it was Page 4 of 5 C/SCA/11444/2015 JUDGMENT not challenged by respondent No. 1 before Apex Court. Learned advocate Mr. N.J. Shah for respondent No. 1 has stated that he has not been instructed as to whether any case is pending before the Supreme Court at the time of non- acceptance of renewal application. It appears that the respondents have not renewed the registration of the petitioner under the Act. In our opinion, this amounts to contempt of Court but this Court takes a lenient view of the matter and looking to the interest of the petitioner, instead of asking the petitioner to go to contempt Court, we dispose of this petition with a direction to the petitioner to resubmit the renewal form along with valid bank draft to respondent No. 1 within a week and thereafter within two weeks respondent No. 1 is directed to renew the registration of the petitioner from the date it expired so that there is no illegality and for the mistake on the part of respondent No. 1, the petitioner may not suffer.
7. This judgement has been delivered by us considering the peculiar facts and circumstances and it shall not be treated as precedent.
Direct service is permitted.
(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.) (pkn) Page 5 of 5