DASHRATH SHAMRAO SHINDE V STATE OF MAHARASHTRA
Citation 2012(3)MH.LJ 163 dated 7/3/2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5231 OF 2011
CORAM : S. A. BOBDE and P. B. VARALE, JJ.
ORAL JUDGMENT (PER P. B. Varale, J.)
1. Rule. Rule made returnable forthwith. Heard finally by
consent of the learned counsel for the respective parties.
2. By the present petition, the petitioner who is running a
sonography centre i.e. a Genetic Clinic with a sonography manchine
namely ‘Shinde hospital’, is challenging the order dated 07.12.2010
passed by respondent no.3 Civil Surgeon , Buldhana.
3. Mr. Deshpande, the learned counsel for the petitioner
submits that the petitioner is a qualified Doctor having M.B.B.S. degree at
his credit and runs a clinic namely Shinde Hospital. He further submits
that the petitioner purchased a Sonography machine and the same is
installed in his clinic. He further submits that a register is maintained by3 Judgment wp5231.11
the petitioner and record is duly maintained about the patients attended
for sonography test. The learned counsel for the petitioner further
submits that the petitioner has completed all the required formalities as
prescribed under ‘F’ form. He further submits that the impugned order
passed by respondent no.3 the Civil Surgeon, Buldhana, dated
07.12.2010 thereby sealing the sonography centre and suspending the
registration of the clinic of the petitioner is wholly unsustainable. In
challenge to the impugned order, the learned counsel for the petitioner
raised his first contention that in view of the provisions of Section 20 of
The Preconception and Prenatal Diagnostic Techniques (Prohibition of
Sex Selection) Act, 1994 (57 of 1994) (hereinafter referred to as “the
PCPNDT Act”), the petitioner ought to have been granted an opportunity
of a personal hearing. The second contention of the learned counsel for
the petitioner is that the impugned order do not reflect that the order is
passed ‘in public interest’. The third contention of the learned counsel for
the petitioner is that no reasons are recorded for passing the impugned
order. Lastly, the learned counsel for the petitioner contended that the4 Judgment wp5231.11
order has been passed by respondent no.3, who is not the Appropriate
Authority to pass such order under the Act. In support of these
contentions, the learned counsel for the petitioner has placed reliance on
the order passed by this Court in Writ Petition No. 2766/2010.
4. Ms. Tajwar Khan, the learned Assistant Government Pleader
for the respondents submitted that the PCPNDT Act empowers the
Authority to seal the sonography centre without issuing any notice, if the
action is in public interest. The learned A.G.P. further submits that in
view of the recent Government Circular, the Civil Surgeon is entrusted
with the power of sealing.
5. Considering the rival contentions, the clinic run by the
petitioner is undoubtedly a ‘Genetic Clinic’ within the meaning of Section
2(d) of the PCPNDT Act. Insofar as submission of the learned A.G.P.
that in the public interest, the Appropriate Authority may suspend the
registration of Genetic Councelling Centre, Genetic Laboratory and5 Judgment wp5231.11
Genetic Clinic without issuing notice, we are inclined to accept the
submission. However, perusal of the impugned order reveals that the
order is not passed under subsection 3 of Section 20 of the PCPNDT
Act so as to dispense with the issuance of show cause notice. Though,
perusal of the record show that a showcause notice was issued to the
petitioner under Section 3 and 18 of the PCPNDT Act and the same is a
format notice, Section 3 of the Act deals with regulation of Genetic
Counselling Centres, Genetic Laboratories and Genetic Clinics, whereas
Section 18 deals with registration of Genetic Counselling Centres,
Genetic Laboratories and Genetic Clinics. There is nothing on record
placed by the respondents to show that any notice was issued to the
petitioner as required under Section 20(1) of the Act, nor there is
anything on record that any opportunity of hearing was granted to the
petitioner as required under Section 20(2) of the Act. The record also
reveals that no reasons are recorded in writing in the impugned order
since the order purports to suspend the registration of Genetic Clinic of
the petitioner. Though, it is the required under the law, the order merely6 Judgment wp5231.11
recites that the petitioner’s sonography centre was inspected by the
inspection squad and a panchanama to that effect was drawn. This
Court has considered this issue in an identical case i.e. Writ Petition
No. 613/2012.
6. It is interesting to note that the impugned order only refers to
the deficiency in maintaining ‘F’ Form register. It is not even the case of
the respondentauthorities that the petitioner was found involved in some
sex determination. In view of this fact, we are of the opinion that the
impugned order suffers from noncompliance of the requirements of
Section 20 of the PCPNDT Act. Though, the learned A.G.P. has
submitted that the power of sealing and suspension of registration are
with Civil Surgeon, nothing is placed on record in support of this
submission.
7. In Our considered view, the impugned order is unsustainable
in view of noncompliance of the provisions of Section 20 of the PCPNDT
Act and the same is required to be quashed and set aside. In the result,7 Judgment wp5231.11
the writ petition is allowed. The impugned order dated 07.12.2010 is
quashed and set aside. Rule is made absolute accordingly. No costs.
8. We make it clear that this order does not prevent the
respondents from taking any further action in the matter as they may
consider advisable, in accordance with law.
JUDGE JUDGE
Diwale
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Citation 2012(3)MH.LJ 163 dated 7/3/2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5231 OF 2011
CORAM : S. A. BOBDE and P. B. VARALE, JJ.
ORAL JUDGMENT (PER P. B. Varale, J.)
1. Rule. Rule made returnable forthwith. Heard finally by
consent of the learned counsel for the respective parties.
2. By the present petition, the petitioner who is running a
sonography centre i.e. a Genetic Clinic with a sonography manchine
namely ‘Shinde hospital’, is challenging the order dated 07.12.2010
passed by respondent no.3 Civil Surgeon , Buldhana.
3. Mr. Deshpande, the learned counsel for the petitioner
submits that the petitioner is a qualified Doctor having M.B.B.S. degree at
his credit and runs a clinic namely Shinde Hospital. He further submits
that the petitioner purchased a Sonography machine and the same is
installed in his clinic. He further submits that a register is maintained by3 Judgment wp5231.11
the petitioner and record is duly maintained about the patients attended
for sonography test. The learned counsel for the petitioner further
submits that the petitioner has completed all the required formalities as
prescribed under ‘F’ form. He further submits that the impugned order
passed by respondent no.3 the Civil Surgeon, Buldhana, dated
07.12.2010 thereby sealing the sonography centre and suspending the
registration of the clinic of the petitioner is wholly unsustainable. In
challenge to the impugned order, the learned counsel for the petitioner
raised his first contention that in view of the provisions of Section 20 of
The Preconception and Prenatal Diagnostic Techniques (Prohibition of
Sex Selection) Act, 1994 (57 of 1994) (hereinafter referred to as “the
PCPNDT Act”), the petitioner ought to have been granted an opportunity
of a personal hearing. The second contention of the learned counsel for
the petitioner is that the impugned order do not reflect that the order is
passed ‘in public interest’. The third contention of the learned counsel for
the petitioner is that no reasons are recorded for passing the impugned
order. Lastly, the learned counsel for the petitioner contended that the4 Judgment wp5231.11
order has been passed by respondent no.3, who is not the Appropriate
Authority to pass such order under the Act. In support of these
contentions, the learned counsel for the petitioner has placed reliance on
the order passed by this Court in Writ Petition No. 2766/2010.
4. Ms. Tajwar Khan, the learned Assistant Government Pleader
for the respondents submitted that the PCPNDT Act empowers the
Authority to seal the sonography centre without issuing any notice, if the
action is in public interest. The learned A.G.P. further submits that in
view of the recent Government Circular, the Civil Surgeon is entrusted
with the power of sealing.
5. Considering the rival contentions, the clinic run by the
petitioner is undoubtedly a ‘Genetic Clinic’ within the meaning of Section
2(d) of the PCPNDT Act. Insofar as submission of the learned A.G.P.
that in the public interest, the Appropriate Authority may suspend the
registration of Genetic Councelling Centre, Genetic Laboratory and5 Judgment wp5231.11
Genetic Clinic without issuing notice, we are inclined to accept the
submission. However, perusal of the impugned order reveals that the
order is not passed under subsection 3 of Section 20 of the PCPNDT
Act so as to dispense with the issuance of show cause notice. Though,
perusal of the record show that a showcause notice was issued to the
petitioner under Section 3 and 18 of the PCPNDT Act and the same is a
format notice, Section 3 of the Act deals with regulation of Genetic
Counselling Centres, Genetic Laboratories and Genetic Clinics, whereas
Section 18 deals with registration of Genetic Counselling Centres,
Genetic Laboratories and Genetic Clinics. There is nothing on record
placed by the respondents to show that any notice was issued to the
petitioner as required under Section 20(1) of the Act, nor there is
anything on record that any opportunity of hearing was granted to the
petitioner as required under Section 20(2) of the Act. The record also
reveals that no reasons are recorded in writing in the impugned order
since the order purports to suspend the registration of Genetic Clinic of
the petitioner. Though, it is the required under the law, the order merely6 Judgment wp5231.11
recites that the petitioner’s sonography centre was inspected by the
inspection squad and a panchanama to that effect was drawn. This
Court has considered this issue in an identical case i.e. Writ Petition
No. 613/2012.
6. It is interesting to note that the impugned order only refers to
the deficiency in maintaining ‘F’ Form register. It is not even the case of
the respondentauthorities that the petitioner was found involved in some
sex determination. In view of this fact, we are of the opinion that the
impugned order suffers from noncompliance of the requirements of
Section 20 of the PCPNDT Act. Though, the learned A.G.P. has
submitted that the power of sealing and suspension of registration are
with Civil Surgeon, nothing is placed on record in support of this
submission.
7. In Our considered view, the impugned order is unsustainable
in view of noncompliance of the provisions of Section 20 of the PCPNDT
Act and the same is required to be quashed and set aside. In the result,7 Judgment wp5231.11
the writ petition is allowed. The impugned order dated 07.12.2010 is
quashed and set aside. Rule is made absolute accordingly. No costs.
8. We make it clear that this order does not prevent the
respondents from taking any further action in the matter as they may
consider advisable, in accordance with law.
JUDGE JUDGE
Diwale
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