Moreover, in
the present facts, the act of putting seal is under the impression that as
renewal was refused on 21/12/2012, use of the machine for genetic
procedures by present petitioner thereafter was not legal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 683 OF 2013
Dr. Sadanand M. Ingle,
.. Versus ..
1. State of Maharashtra
CORAM : : B. P. DHARMADHIKARI AND
S. B. SHUKRE, JJ.
DATE OF PRONOUNCING JUDGMENT : JUNE 21, 2013
J U D G M E N T (Per S. B. Shukre, J.)
1. By this writ petition, the petitioner assails legality and
validity of order dated 21/12/2012 passed by the Civil Surgeon,
Buldana thereby rejecting application dated 03/8/2012 of the
petitioner for renewal of the registration of his sonography centre at
Khamgaon. This Court, by order dated 14/5/2013, has listed the
matter for final hearing at the stage of admission. Accordingly, Rule,
returnable forthwith.
2. Heard.
3. Shri Madkholkar, learned Counsel for the petitioner has
submitted that the impugned order dated 21/12/2012 has been passed
by the Civil Surgeon, Buldana in complete disregard of the provisions
of the Preconception and Prenatal Diagnostic Techniques (Prohibition
of Sex Selection) Act, 1994 (hereinafter referred to as ‘the Act, 1994’).
He points out that the petitioner, who runs a sonography centre at
Khamgaon, was issued registration for the same in the year 2007 and it
was due to expire on 08/01/2012. He submits that on 19/11/2011
the petitioner made an application for renewal of the registration of his
sonography centre and before any decision was taken on it, the
registration of the sonography centre was suspended on 21/12/2012
following seizure of sonography machine in a raid on the centre on
17/12/2011. He has further submitted that the order dated
21/12/2011 was challenged by the petitioner in Writ Petition No. 163
of 2012 and this Court by its judgment and order dated 07/3/2012
was pleased to allow the petition and set aside the order dated
21/12/2011. The learned Counsel has further submitted that in spite
of this order, the respondents rejected the application of the petitioner
for renewal of registration of sonography centre on 21/12/2012
stating that the sonography machine was sealed on 17/12/2011 and
that the matter was sub judice. According to him, the order of this
Court dated 07/3/2012, setting aside the suspension order dated
21/12/2011, nullified the sealing action that took place on
17/12/2011 as the order dated 21/12/2011 is founded on it.
Therefore, the learned Counsel submits that the impugned order
smacks of mala fides and is arbitrary.
4. The learned Counsel for the petitioner has further argued
that the impugned order cannot be sustained in law for the reason that
it is not passed by an appropriate authority. He has drawn attention of
this Court to the provisions of Section 17(2) and Section 20 of the Act,
1994. He has submitted that under Section 17(2) of the Act, 1994, the
State Government has been empowered to appoint by notification in
the official gazette one or more appropriate authorities for the
purposes of the Act and subsections (1) and (3) of Section 20
mandate that cancellation or suspension of a sonography centre must
be for reasons recorded in writing and also be in the public interest. He
has further submitted that none of these requirements of law is met by
the impugned order.
5. Learned Counsel for the petitioner has further submitted
that under rule 8(6) of the Preconception and Prenatal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996 (hereinafter
referred to as “Rules, 1996”), there is a deemed renewal of registration
of the sonography centre, and, in this case, there was indeed such
renewal as after making of the application on 03/8/2012, the
petitioner was not communicated any rejection of the application
within the stipulated period of 90 days from the date of receipt of the
application. This is another reason put forth by the learned Counsel
for the petitioner to term the impugned order as violative of provisions
of the Act, 1994.
6. Learned Counsel for the petitioner has further argued that
even the action of raiding sonography centre of the petitioner by
respondent Nos. 3 and 4 is illegal and actuated by malice arising out of
professional rivalry. He submits that unless there is an order of
suspension of the sonography centre passed in terms of the provisions
of Section 20 of the Act, 1994, sealing of the machine is not
permissible under the law. He has referred to a document titled
“Pawati Supurdnama” dated 30/12/2012, whereby the sonography
machine, that was sealed in the action of search and seizure carried
out at the centre on 28/12/2012 and 29/12/2012, has been released
in sealed condition into the custody of the petitioner. This document,
he has pointed out, has been signed by the Medical Superintendent,
Rural Hospital, Khamgaon. The learned Counsel has submitted that
this document is not supported by any order under Section 20 of the
Act, 1994 and that it is not signed by the appropriate authority. He
has also argued that the Medical Superintendent of Rural Hospital,
Khamgaon cannot be appropriate authority because the Rural Hospital
for Khamgaon area is situated at village Lakhanwada.
7. Learned Counsel for the petitioner further submits that the
impugned order dated 21/12/2012 is violative of principles of natural
justice as it neither records any reasons nor indicates that it is in public
interest. Rather, according to the learned Counsel for the petitioner,
the impugned order has been passed by a Government Officer, who
considers himself as an authority above the law and who has set
himself out to manipulate the law to serve his own interest. In
support, he has referred to the law laid down by the Hon’ble Apex
Court as regards recording of reasons in the case of Ravi Yashwant
Bhoiar Vs. District Collector, Raigarh & others reported in (2012) 4
SCC 407 (paras 42 and 46) and also the observations of the Hon’ble
Apex Court on the nature of law being science of what is good and just
and being protective of a civilized society recorded in para 1 of the
judgment rendered in the case of Mehmood Nayyar Azam Vs. State of
Chhatisgarh & others reported in (2012) 8 SCC 1.
8. Learned Counsel for the petitioner also argues that passing
of the impugned order by the respondents constitutes contempt of this
Court as it has been passed in total disregard of the order dated
07/3/2012 of this Court.
9. Learned Counsel for the petitioner has lastly submitted that
the impugned order having been passed without authority and
jurisdiction, the petitioner has directly approached this Court and for
this submission he seeks support from the observations of the learned
Single Judge in paragraph 19 of the judgment delivered in the case of
Sukhda w/o Dilip Mulay Vs. State of Maharashtra & others, reported in
2013(1) Mh.L.J.638.
10. The petition is strongly opposed by the respondents.
Smt. Dangre, Additional Government Pleader argues that the petition
is misconceived in law. She submits that in compliance with the order
dated 07/3/2012 passed by this Court in Writ Petition No. 163 of
2012, the respondents removed the seal of the sonography machine on
15/6/2012. She has further submitted that the application for renewal
of registration dated 03/8/2012 has been rejected by the appropriate
authority duly appointed under the provisions of the Act, 1994, and
that its basis has been the criminal cases initiated against the petitioner
in the Court of Judicial Magistrate, First Class, Khamgaon (for short,
J.M.F.C., Khamgaon) and not the search and seizure action carried out
on 17/11/2011. She has further submitted that although, the order of
suspension of registration of sonography centre of the petitioner dated
21/12/2011 has been set aside by this Court on 07/3/2012, it has
been made clear in the order itself that the respondents are free to take
such further action in the matter as may be considered advisable
under the law. She has further submitted that the criminal cases,
which followed search and seizure action dated 17/12/2011 are still
pending in the Court of J.M.F.C., Khamgaon and, therefore, there is
nothing wrong to make a reference to them and reject the renewal
application on the ground of pendency of these cases. She also
submits that with the liberty given by this Court to take further
appropriate steps and withdrawal of Contempt Petition by the
petitioner on 11/10/2012, the contention that answering respondents
have committed contempt of this Court loses steam
11. Learned Additional Government Pleader has further
submitted that a document referred to by the learned Counsel for the
petitioner vide AnnexureD (page No.49 of the petition) dated
28/12/2012 is not a document, which can be termed as renewal
certificate because this document is in FormF. The renewal certificate
has to be in FormC prescribed under Rule 8(3) of Rules, 1996. She
has invited attention of the Court to FormF prescribed under the
Rules, 1996 to show that this form is actually used for maintenance of
record in respect of pregnant women and not for issuing renewal
certificate. She has further argued that the registration number
mentioned at Sl. No.2 of AnnexureD is not the registration number of
sonography centre of the petitioner.
12. The learned Additional Government Pleader has taken us
through the various provisions of the Act, 1994 and also Rules, 1996 to
show that the impugned order is legal and not violative of any
principles of natural justice and that it has been passed in the public
interest. She has further submitted that the first order dated
07/01/2012, rejecting the first application dated 19/11/2011 made by
the petitioner for renewal of his sonography centre, was never
challenged by the petitioner and, therefore, if his another application
for renewal of registration of sonography centre was rejected by the
respondents, it would be not open to him to put up any challenge to
the subsequent order, which is impugned herein.
13. Learned Additional Government Pleader has further
submitted that the power to search and seizure of record, etc. at the
sonography centre emanates from Section 30 (2) of the Act, 1994 and
is independent of the provisions contained in Section 20 of the Act,
1994. According to her, for exercise of power to search and seizure,
etc. under Section 30, it is not necessary to first proceed to suspend the
registration under Section 20(3) of the Act, 1994. She argues that
Section 30 power comes into play when appropriate authority acts on
the basis of some inputs received and reasonably believed by him to
prima facie indicate that an offence under the Act, 1994 has been or is
being committed at the sonography centre and on the other hand,
Section 20(3) power would be invariably exercised if action under
Section 30(2) is first taken.
14. Learned Additional Government Pleader has referred to us
the Government notifications dated 11/9/1997 and 06/11/2001
showing that the Civil Surgeon at every district and Medical
Superintendent at every taluka of the State of Maharashtra has been
appointed to be the appropriate authority for the respective areas
under his jurisdiction for the purposes of the Act, 1994. Relying on
these notifications, she has submitted that the impugned order has
been passed by a competent authority. She has also submitted that the
document titled, “Pavti Supurdnama” is not an order passed under
Section 20(3) of the Act, 1994 as sought to be canvassed on behalf of
the petitioner. According to her, it is only a receipt obtained from the
petitioner in acknowledgment of the petitioner receiving custody of
sealed sonography machine after the action of search and seizure was
taken at his hospital on 28/12/2012 and 29/12/2012. She has further
submitted that even if it is to be construed as some kind of order, still
it cannot be termed as illegal because it has been admittedly signed by
the Medical Superintendent of Rural Hospital, Khamgaon, who is a
competent authority as per notification dated 06/11/2001. She has
also submitted that Rural Hospital, Lakhanwada is a different hospital
than Rural Hospital, Khamgaon and the latter has jurisdiction over
Khamgaon taluka.
15. Learned Additional Government Pleader has further
submitted that the alternate remedy in the nature of appeal under
Section 21 of the Act, 1994 was available to the petitioner and he, not
having exhausted that remedy, could not approach this Court in its
writ jurisdiction for redressal of his grievances. She has further
submitted that there has been no malice in law and facts in the entire
action and, therefore, the petition is liable to be rejected.
16. On the rival submissions raised, the points arise for our
determination are as follows. :
(1) Whether the impugned order dated
21/11/2012 is unsustainable under law
and, if so, whether the seal of the
sonography machine is liable to be
removed?
(2) Whether there was any deemed renewal of
registration of sonography centre of the
petitioner?
(3) Whether passing of order under Section
20(3) of the Act, 1994 is a condition
precedent for sealing of a sonography
machine?
(4) Whether any contempt of this Court has
been committed by the respondent?
17. In order to answer these points, it would be necessary for us
to consider the important legal and factual aspects of the case.
The Act, 1994 has been enacted with some definite
objectives, they being prohibition of sex selection, regulation of
modern diagnostic techniques involved in the detection of genetic or
metabolic disorders and to prevent the incidence of female foeticide
triggered by misuse of sex determination test. For achieving these
objects, the Act, 1994 lays down a detailed scheme for regulating and
monitoring genetic counselling centres, genetic laboratories and
clinics, prenatal diagnostic techniques, etc. The Act, 1994 also
provides for appointing various supervisory and competent authorities
and creates certain offences by prohibiting certain acts and lays down
penal consequences for the acts prohibited. The objects and scheme of
the Act, 1994 being as they are, it would be necessary for the various
authorities thereunder to strictly follow the procedural requirements of
the Act.
18. On going through the provisions of the Act, 1994, one does
not come across such expression as “sonography centre”, though there
is reference to such words as, “genetic clinic” or “ultra sound clinic” or
“imaging clinic”. The impugned order and some other documents filed
in this petition, however, use the expression, “sonography centre”.
This expression has to be construed as “genetic clinic” within the
meaning of Section 2(d) of the Act, 1994 for the reason that the
sonography centre of the petitioner is being admittedly used for
conducting prenatal diagnostic procedures.
19. The State Government has power under Section 17(2) of
the Act, 1994 to appoint appropriate authorities for the purposes of
this Act and in exercise of this power, the State Government has issued
notifications dated 11/9/1997 and 06/11/2001 appointing Civil
Surgeons/Deans of Medical Colleges and Medical Superintendents of
Rural Hospitals at district and taluka levels as apporopriate authorities,
respectively to exercise their jurisdiction in the areas under their
control.
20. Important factual aspects arising from the facts admitted on
record are stated thus. Initially, the registration for sonography centre
of the petitioner was granted in the year 2007 for a period of five
years, which was to expire on 08/01/2012. Before expiry of the
registration centre, the petitioner moved an application before the
appropriate authority on 19/11/2011 for renewal of the registration
and this application was rejected on 07/01/2012 on the grounds that
the renewal proposal had certain deficiencies, registration of the centre
was already suspended and that the proceedings before the Court of
J.M.F.C., Khamgaon against the centre were pending. This rejection
order signed by the Civil Surgeon, Buldana, an appropriate authority
under the Act, 1994 in view of notification dated 11/9/1997, was not
brought to the notice of this Court when it set aside the order of
suspension of registration of the centre dated 21/12/2011 on
07/3/2012 in Writ Petition No. 163/2012. The order of suspension of
registration dated 21/12/2011 was passed as a sequel to the sealing of
sonography machine in a raid on the centre on 17/12/2011. After
sealing of the machine, a Criminal Complaint Case No. 119/2011 was
filed against the petitioner before J.M.F.C., Khamgaon. It was based
upon a complaint lodged by one Sarla Ravindra Khotare about alleged
disclosure of sex of foetus by the petitioner at his sonography centre.
There have been two more criminal cases filed later on against the
petitioner by the respondents namely, Criminal Case Nos. 2/2012 and
7/2013.
21. There has been one letter issued on 14/12/2012 by the
Civil Surgeon, Buldana to the petitioner whereby the petitioner has
been called upon to submit his M.B.B.S. degree certificate. In this
letter, there is a specific mention about grant of registration to the
sonography centre of the petitioner. There is also one document,
which is in formF, the form prescribed for maintenance of record in
respect of pregnant women by genetic clinic, filed by the petitioner.
In this form, registration number of sonography centre of the
petitioner has been mentioned as “New: Buldana/44 Old: 19” and the
document is dated 28/12/2012.
22. Now, if we take a look at the impugned order dated
21/12/2012, some startling facts come to the fore. Although, it cannot
be said that the impugned order specifies no reason at all, that the
reasons mentioned therein are extremely cryptic and incongruous to
the own action of respondent Nos. 3 and 4 in opening the seal of the
sonography machine on 15/6/2012 in compliance with the order of
this Court passed in Writ Petition No. 163/2012 on 07/3/2012. This
Court, on 07/3/2012, had quashed and set aside the order of
suspension of registration dated 21/12/2011, which was based upon
the action of sealing of the machine taken precisely on 17/12/2011.
As a consequence thereof, the authorities had to remove the seal and
they indeed removed it on 15/6/2012. The impugned order, however,
refers to sealing of the machine on 17/12/2011 and pendency of
judicial proceedings in respect thereof which form very basis of the
order. Thus, the reasons stated in just one line take us back to the
position as it obtained on 21/12/2011, which position changed in
favour of the petitioner after the order dated 21/12/2011 was set
aside by this Court on 07/3/2012 and seals were removed on
15/6/2012 in compliance with the order. No doubt, the impugned
order has been passed by duly appointed appropriate authority, i.e.
Civil Surgeon, Buldana, but, fact remains that its foundation and tenor
are inconsistent with the order of this Court passed on 07/3/2012 and
own actions of respondent Nos. 3 and 4 that followed thereafter.
23. Learned Additional Government Pleader submits that a
general reference to pending judicial proceedings in the impugned
order envisages pendency of not just one Criminal Case No. 119/2011
filed after sealing of the machine on 17/12/2011, but also second
Criminal Case No. 2/12, which was filed against the petitioner. She
also submits that order dated 07/3/2012 passed by this Court does
make it clear that the respondents may take any such further action in
the matter as they may be advised, in accordance with law and,
therefore, the respondents pursued these criminal cases. Therefore,
according to her, the pendency of two criminal cases should be
considered as additional reason apart from the reason of sealing of the
machine, for refusal to grant renewal of registration of sonography
centre of the petitioner.
24. While there is no doubt about the liberty granted to the
respondents to take further appropriate action in the matter, the
argument that reference to the judicial proceedings made in the
impugned order has to be construed as reference to not just one
criminal case but also another criminal case, cannot be accepted. The
impugned order clearly shows that reference of judicial proceedings
made thereunder is only in the context of 17/12/2011 sealing action
and nothing more. If the consideration of pendency of second criminal
case lay at the back of the mind of the appropriate authority while
passing the impugned order, nothing had prevented the appropriate
authority from making a specific reference to the second criminal case.
This, not having been done, it has to be held that the impugned order
is inconsistent with the order of this Court passed on 07/3/2012 in
Writ Petition No. 163/2012 and the own action of respondent Nos. 3
and 4 in removing the seal of the machine on 15/6/2012. There was
no reason for the appropriate authority to have made any reference to
sealing of the machine in the inspection taken on 17/12/2011 and
filing of a criminal case following sealing of the machine, when this
Court had on 07/3/2012 already found the action of suspension of
registration upon sealing of the machine on 17/12/2011 as
unsustainable in law and the respondent Nos. 3 and 4 too, on their
part, had complied with the order of this Court by removing the seal of
the machine.
25. The impugned order is of 21/12/2012 and there is one
letter dated 14/12/2012 issued by Civil Surgeon, Buldana to the
petitioner, wherein it is stated in no uncertain terms that the
sonography centre of the petitioner has been granted registration. This
letter finds no reference in the impugned order. We do not understand
as to why the impugned order does not make any reference to the
letter of 14/12/2012. No explanation in this regard nor any
clarification in respect of issuance of this letter itself has been provided
by the respondent to the Court. Similarly, no explanation has been
given by the respondents in respect of registration No. Buldana/44, as
mentioned in FormF (AnnexureD filed at page No.49 of the petition).
It is pertinent to note here that this document, FormF, is of
28/12/2012, i.e. seven days after refusal of grant of renewal of
registration of the centre on 21/12/2012. In absence of any
explanation having been submitted by the respondents, it has to be
found that the impugned order is not only contrary to what is stated in
the letter dated 14/12/2012 but also unfair in law. Having regard to
penal consequences provided under the Act, 1994, any action of the
appropriate authorities thereunder must be seen as answering the
requirements of fair play and proper compliance with procedure
prescribed thereunder. It must be stated here that Respondent Nos. 3
and 4 are appropriate authorities under the Act,1994 and are entrusted
with onerous responsibility of ensuring that genetic clinics or centres
are kept within the bounds of law and no one covered under the Act,
1994 violates or misuses the provisions of the Act and whosoever does
that, is brought to book. Therefore, it was expected that the action of
these authorities would be consistent with the provisions of the Act,
1994 and fair in law. That being not the position here, we agree with
the submissions of the learned Counsel for the petitioner made in this
regard and find that the impugned order cannot be sustained in law.
26. At this stage, it is necessary to advert to the law laid down
by the Hon’ble Apex Court as regards necessity of recording of reasons
in the case of Ravi Bhoiar (supra). When the law requires recording of
reasons for taking a decision, law also demands that reasons recorded
are adequate and show application of mind so that anyone aggrieved
by the decision, gets sufficient notice of material used against him and
can adopt appropriate course of action to redress his grievance. If the
recorded reasons exhibit nonapplication of mind or are insufficient,
there would be no reasons in law. In this case, as already discussed
above, there have been some reasons recorded in the impugned order,
but, the reasons so recorded do not seem to be showing any
application of mind to the facts and circumstances of the case by
respondent Nos. 3 and 4 and, therefore, applying ratio of the law so
laid down, we find that in the instant case also there have been
virtually no cogent reasons recorded for passing of the impugned order
and as such, the impugned order is unfair and arbitrary on this count
also. The Apex Court has, in judgment reported at (1978) 1 SCC 405
in the case of Mohinder Singh Gill and another Vs. The Chief Election
Commissioner, New Delhi & others, declared that the reasons recorded
in the order, cannot be supplemented later on.
27. Renewal of registration is dealt with by rule 8 of Rules,
1996 and the provisions relating to deeming effect for and renewal of
the registration are to be found in sub rule (6), which reads as under.
“In the event of failure of the Appropriate Authority
to renew the certificate of registration or to
communicate rejection of application for renewal of
registration within a period of ninety days from the
date of receipt of application for renewal of
registration, the certificate of registration shall be
deemed to have been renewed.”
28. It is clear from the above provision that upon failure of the
appropriate authority to either renew the certificate of registration or
communicate its rejection within a period of ninety days from the date
of application, the certificate of registration is deemed to have been
renewed. For giving deeming effect to the renewal of registration,
fulfillment of either of two conditions namely; failure to renew the
registration or failure to communicate rejection of application for
renewal is necessary. In this case, there is no dispute about making of
an application for renewal of registration by the petitioner second time
in the month of August, 2012 and also about it’s being made on the
advise of respondent Nos. 3 and 4. According to the petitioner, the
application was made on 03/8/2012 and according to the impugned
order dated 21/12/2012, the date of renewal application is
06/8/2012. There is one letter dated 23/8/2012 addressed to the
appropriate authority/Medical Superintendent, General Hospital,
Khamgaon by the Civil Surgeon, Buldana on the subject of renewal of
registration of sonography centre of the petitioner filed on record by
the petitioner at page 48 of the petition. This letter mentions date of
renewal application as 03/8/2012. The petitioner has not filed on
record a copy of his second renewal application filed in the month of
August, 2012. However, there being no dispute about the second
renewal application and variation in the dates of application, as
mentioned in two documents above referred to, being marginal, not
much difference would eventually be caused in computing the period
of ninety days for the purposes of rule 8(6) of the Rules, 1996. If we
take the date 06/8/2012 as mentioned in the impugned order as the
date of receipt of the renewal application, the prescribed period of 90
days would be over on 04/11/2012. So, from this date, deeming
provision under rule 8(6) would be applicable and as such it would
have to be held that the registration of the centre was deemed to be
renewed w.e.f. 04/11/2012.
29. The above referred conclusion also receives support from
the documents dated 14/12/2012 and 28/12/2012 about which we
have already made a detailed discussion in the earlier paragraphs.
Accordingly, we find that in this case there was a deemed renewal of
registration of the sonography centre of the petitioner.
30. Thus, the impugned order can be seen to be not only unfair
and arbitrary but also inconsistent with the provisions of the Act, 1994
in the sense that deeming effect of renewal of the registration in view
of the provisions of Rule 8(6) has been completely ignored by the
appropriate authority when it passed the impugned order on
21/12/2012. It appears that the appropriate authority has forgotten
that there is a rule providing for deemed renewal of registration of a
genetic or sonography centre. While we refrain from commenting on
what could be the possible reasons for the appropriate authority to
ignore the provisions of rule 8(6) in passing of the impugned order, we
would like to draw support from the observations of the Hon’ble Apex
Court in the case of Mehmood Nayyar Azam vs. State of Chhatisgarh
(supra) made in paragraph 1, page 6; “..law is the science of what is
good and just and, in the very nature of things, protective of civilized
society..”, referred to us by learned Counsel for the petitioner in saying
that the concerned authorities should have been more mindful of the
provisions of the Act, 1994 in passing of the impugned order. For this
reason also, we find that the impugned order is unsustainable and
liable to be quashed and set aside. Consequently, we further hold that
seal of the sonography machine is liable to be removed.
The first two questions are answered accordingly.
31. Section 20 of the Act, 1994 deals with cancellation or
suspension of registration. We are concerned in this case with Section
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20(3), which reads thus :
“Notwithstanding anything contained in sub
sections (1) and (2), if the Appropriate Authority is of
the opinion that it is necessary or expedient so to do
in the public interest, it may, for reasons to be
recorded in writing, suspend the registration of any
Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic without issuing any such notice referred
to in subsection (1).”
The above referred provision requires appropriate authority
to form an opinion based on some objective material that it is
necessary or expedient in the public interest to suspend registration of
a genetic clinic or centre. The provision also mandates the appropriate
authority to record reasons in writing. This provision begins with
nonobstante clause and, therefore, the subsection stands on its own
footing empowering the appropriate authority to suspend registration
for a temporary period or cancel it without even issuing show cause
notice and giving a reasonable opportunity of hearing to the genetic
clinic or centre. This subsection and also subsections (1) and (2), it
may be stressed, do not refer to seal or seizure of the sonography
machine.
32. Section 30 confers power upon the appropriate authority or
other authorized officer to carry out search and seizure at the genetic
clinic or centre where the appropriate authority has a reason to believe
that some offence under the Act, 1994 has been or is being committed.
It also authorizes the appropriate authority or other authorized officer
to seize and seal any record or material object found at the centre. In
the explanation to rule 12 of Rules, 1996, the terms, ‘seize’ and
‘seizure’ have been explained to include, ‘seal’ and ‘sealing’,
respectively. The explanation reads thus :
“(1) ‘Genetic Laboratory/Genetic Clinic/Genetic
Counselling Centre’ would include an Ultrasound
Centre/Imaging Centre/ nursing home/ hospital/
institute or any other place, by whatever name called,
where any of the machines or equipments capable of
selection of sex before or after conception or
performing any procedure technique or test for pre
natal detection of sex of foetus, is used;
(2) ‘material object’ would include records, machines
and equipments; and
(3) ‘seize’ and ‘seizure’ would include ‘seal’ and
‘sealing’ respectively.”
So, Section 30 of the Act, 1994 read with rule 12 of the
Rules, 1996 makes it abundantly clear that the appropriate authority
can carry out not only the search at the genetic clinic or centre but also
seal the relevant record and material objects with a view to use them
as evidence of the commission of offence punishable under the
provisions of the Act, 1994. The power under this Section comes alive
only when the appropriate authority reasonably believes that an
offence under the Act, 1994 has been or is being committed. This is
the only condition precedent prescribed under Section 30 for exercise
of power under it. But, there is no reference therein, whatsoever, for
suspension of the registration of genetic clinic or centre. Moreover, in
the present facts, the act of putting seal is under the impression that as
renewal was refused on 21/12/2012, use of the machine for genetic
procedures by present petitioner thereafter was not legal.
33. From the characteristic features of Section 20(3) and
Section 30, as discussed above, it would be clear that both are
independent sections and do not require action to be taken under
another section as a prelude to taking of action under one section.
There can be suspension of registration under Section 20 (3) and it
may or may not necessarily follow sealing of the machine thereafter
and there can be sealing of the machine without suspension of the
registration under Section 20(3) of the Act, 1994. The third question
is answered accordingly.
34. Learned Counsel for the petitioner has urged before us that
there has been a contempt of this Court committed by the respondents
as they have in willful disobedience of the directions given by this
Court on 07/3/2012 in Writ Petition No. 163/2012 passed the
impugned order. We are not inclined to accept this argument for the
reason that no material has been brought on record to show us that
there has been a willful disobedience of the order dated 07/3/2012
passed by this Court or that it was out of some mala fides on the part
of the respondents. The order dated 07/3/2012 only sets aside the
order dated 21/12/2012 and gives liberty to the respondents to take
such further action in the matter as may be advised in accordance with
law. Accordingly, respondent Nos. 3 and 4 proceeded with the
prosecution of criminal cases against the petitioner in the Court of
J.M.F.C., Khamgaon. But, it appears that respondent Nos. 3 and 4
were ill advised in referring to sealing of the machine and pendency of
criminal case relating to it in the impugned order. At the most, such
reference could only be described as erroneous in law and facts and
nothing more. For initiating contempt action, it is absolutely necessary
to show that there is either willful disobedience of the order of the
Court or some mala fide intention on the part of the contemnor in
committing the act complained of and which resulted in lowering
down of the dignity or esteem of the Court or amounted to
interference with administration of justice. No material having been
brought on record to enable this Court to draw such an inference, we
find that no case is made out for taking any action for contempt of the
Court as urged by the petitioner. The question is answered
accordingly.
35. Before parting with the judgment, we would like to address
the point of availability of alternate remedy to the petitioner under
Section 21 of the Act, 1994 put forth by the learned A.G.P. In this
case, there has been complete ignorance by the respondents of
quashing of the order of suspension of the registration of the
sonography centre dated 21/11/2011 by this Court on 07/3/2012 and
own admissions of respondent Nos. 3 and 4 as mentioned in the letter
dated 14/12/2012, while passing the impugned order. Similarly, they
missed the important legal aspect of deemed renewal of the
registration of the sonography centre. These factors would make the
impugned order as one without authority of law and jurisdiction. The
objection about availability of an alternate remedy also needs to be
rejected because of earlier judgment of this Court dated 07/3/2012
and cognizance taken therein. Here, it is apparent that though the
registration stood renewed for next five years, on 21/12/2012 under
erroneous impression, the renewal of registration has been refused.
Said order or the affidavit filed in support thereof, nowhere referes to
the recommendation or opinion, if any, expressed by the State
Advisory Committee. The facts noticed by us, as above, also indicate
that alternate remedy is not made out to be efficacious.
36. In the result, the petition is allowed. Impugned order dated
21/12/2012 is set aside. The respondents are directed to remove the
seal of sonography machine, forthwith. However, it is made clear that
the respondents would be at liberty to take such further action in the
matter as may be advised to them, in accordance with law.
Rule is made absolute in the above terms with no order as
to costs.
Print Page
the present facts, the act of putting seal is under the impression that as
renewal was refused on 21/12/2012, use of the machine for genetic
procedures by present petitioner thereafter was not legal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 683 OF 2013
Dr. Sadanand M. Ingle,
.. Versus ..
1. State of Maharashtra
CORAM : : B. P. DHARMADHIKARI AND
S. B. SHUKRE, JJ.
DATE OF PRONOUNCING JUDGMENT : JUNE 21, 2013
J U D G M E N T (Per S. B. Shukre, J.)
1. By this writ petition, the petitioner assails legality and
validity of order dated 21/12/2012 passed by the Civil Surgeon,
Buldana thereby rejecting application dated 03/8/2012 of the
petitioner for renewal of the registration of his sonography centre at
Khamgaon. This Court, by order dated 14/5/2013, has listed the
matter for final hearing at the stage of admission. Accordingly, Rule,
returnable forthwith.
2. Heard.
3. Shri Madkholkar, learned Counsel for the petitioner has
submitted that the impugned order dated 21/12/2012 has been passed
by the Civil Surgeon, Buldana in complete disregard of the provisions
of the Preconception and Prenatal Diagnostic Techniques (Prohibition
of Sex Selection) Act, 1994 (hereinafter referred to as ‘the Act, 1994’).
He points out that the petitioner, who runs a sonography centre at
Khamgaon, was issued registration for the same in the year 2007 and it
was due to expire on 08/01/2012. He submits that on 19/11/2011
the petitioner made an application for renewal of the registration of his
sonography centre and before any decision was taken on it, the
registration of the sonography centre was suspended on 21/12/2012
following seizure of sonography machine in a raid on the centre on
17/12/2011. He has further submitted that the order dated
21/12/2011 was challenged by the petitioner in Writ Petition No. 163
of 2012 and this Court by its judgment and order dated 07/3/2012
was pleased to allow the petition and set aside the order dated
21/12/2011. The learned Counsel has further submitted that in spite
of this order, the respondents rejected the application of the petitioner
for renewal of registration of sonography centre on 21/12/2012
stating that the sonography machine was sealed on 17/12/2011 and
that the matter was sub judice. According to him, the order of this
Court dated 07/3/2012, setting aside the suspension order dated
21/12/2011, nullified the sealing action that took place on
17/12/2011 as the order dated 21/12/2011 is founded on it.
Therefore, the learned Counsel submits that the impugned order
smacks of mala fides and is arbitrary.
4. The learned Counsel for the petitioner has further argued
that the impugned order cannot be sustained in law for the reason that
it is not passed by an appropriate authority. He has drawn attention of
this Court to the provisions of Section 17(2) and Section 20 of the Act,
1994. He has submitted that under Section 17(2) of the Act, 1994, the
State Government has been empowered to appoint by notification in
the official gazette one or more appropriate authorities for the
purposes of the Act and subsections (1) and (3) of Section 20
mandate that cancellation or suspension of a sonography centre must
be for reasons recorded in writing and also be in the public interest. He
has further submitted that none of these requirements of law is met by
the impugned order.
5. Learned Counsel for the petitioner has further submitted
that under rule 8(6) of the Preconception and Prenatal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996 (hereinafter
referred to as “Rules, 1996”), there is a deemed renewal of registration
of the sonography centre, and, in this case, there was indeed such
renewal as after making of the application on 03/8/2012, the
petitioner was not communicated any rejection of the application
within the stipulated period of 90 days from the date of receipt of the
application. This is another reason put forth by the learned Counsel
for the petitioner to term the impugned order as violative of provisions
of the Act, 1994.
6. Learned Counsel for the petitioner has further argued that
even the action of raiding sonography centre of the petitioner by
respondent Nos. 3 and 4 is illegal and actuated by malice arising out of
professional rivalry. He submits that unless there is an order of
suspension of the sonography centre passed in terms of the provisions
of Section 20 of the Act, 1994, sealing of the machine is not
permissible under the law. He has referred to a document titled
“Pawati Supurdnama” dated 30/12/2012, whereby the sonography
machine, that was sealed in the action of search and seizure carried
out at the centre on 28/12/2012 and 29/12/2012, has been released
in sealed condition into the custody of the petitioner. This document,
he has pointed out, has been signed by the Medical Superintendent,
Rural Hospital, Khamgaon. The learned Counsel has submitted that
this document is not supported by any order under Section 20 of the
Act, 1994 and that it is not signed by the appropriate authority. He
has also argued that the Medical Superintendent of Rural Hospital,
Khamgaon cannot be appropriate authority because the Rural Hospital
for Khamgaon area is situated at village Lakhanwada.
7. Learned Counsel for the petitioner further submits that the
impugned order dated 21/12/2012 is violative of principles of natural
justice as it neither records any reasons nor indicates that it is in public
interest. Rather, according to the learned Counsel for the petitioner,
the impugned order has been passed by a Government Officer, who
considers himself as an authority above the law and who has set
himself out to manipulate the law to serve his own interest. In
support, he has referred to the law laid down by the Hon’ble Apex
Court as regards recording of reasons in the case of Ravi Yashwant
Bhoiar Vs. District Collector, Raigarh & others reported in (2012) 4
SCC 407 (paras 42 and 46) and also the observations of the Hon’ble
Apex Court on the nature of law being science of what is good and just
and being protective of a civilized society recorded in para 1 of the
judgment rendered in the case of Mehmood Nayyar Azam Vs. State of
Chhatisgarh & others reported in (2012) 8 SCC 1.
8. Learned Counsel for the petitioner also argues that passing
of the impugned order by the respondents constitutes contempt of this
Court as it has been passed in total disregard of the order dated
07/3/2012 of this Court.
9. Learned Counsel for the petitioner has lastly submitted that
the impugned order having been passed without authority and
jurisdiction, the petitioner has directly approached this Court and for
this submission he seeks support from the observations of the learned
Single Judge in paragraph 19 of the judgment delivered in the case of
Sukhda w/o Dilip Mulay Vs. State of Maharashtra & others, reported in
2013(1) Mh.L.J.638.
10. The petition is strongly opposed by the respondents.
Smt. Dangre, Additional Government Pleader argues that the petition
is misconceived in law. She submits that in compliance with the order
dated 07/3/2012 passed by this Court in Writ Petition No. 163 of
2012, the respondents removed the seal of the sonography machine on
15/6/2012. She has further submitted that the application for renewal
of registration dated 03/8/2012 has been rejected by the appropriate
authority duly appointed under the provisions of the Act, 1994, and
that its basis has been the criminal cases initiated against the petitioner
in the Court of Judicial Magistrate, First Class, Khamgaon (for short,
J.M.F.C., Khamgaon) and not the search and seizure action carried out
on 17/11/2011. She has further submitted that although, the order of
suspension of registration of sonography centre of the petitioner dated
21/12/2011 has been set aside by this Court on 07/3/2012, it has
been made clear in the order itself that the respondents are free to take
such further action in the matter as may be considered advisable
under the law. She has further submitted that the criminal cases,
which followed search and seizure action dated 17/12/2011 are still
pending in the Court of J.M.F.C., Khamgaon and, therefore, there is
nothing wrong to make a reference to them and reject the renewal
application on the ground of pendency of these cases. She also
submits that with the liberty given by this Court to take further
appropriate steps and withdrawal of Contempt Petition by the
petitioner on 11/10/2012, the contention that answering respondents
have committed contempt of this Court loses steam
11. Learned Additional Government Pleader has further
submitted that a document referred to by the learned Counsel for the
petitioner vide AnnexureD (page No.49 of the petition) dated
28/12/2012 is not a document, which can be termed as renewal
certificate because this document is in FormF. The renewal certificate
has to be in FormC prescribed under Rule 8(3) of Rules, 1996. She
has invited attention of the Court to FormF prescribed under the
Rules, 1996 to show that this form is actually used for maintenance of
record in respect of pregnant women and not for issuing renewal
certificate. She has further argued that the registration number
mentioned at Sl. No.2 of AnnexureD is not the registration number of
sonography centre of the petitioner.
12. The learned Additional Government Pleader has taken us
through the various provisions of the Act, 1994 and also Rules, 1996 to
show that the impugned order is legal and not violative of any
principles of natural justice and that it has been passed in the public
interest. She has further submitted that the first order dated
07/01/2012, rejecting the first application dated 19/11/2011 made by
the petitioner for renewal of his sonography centre, was never
challenged by the petitioner and, therefore, if his another application
for renewal of registration of sonography centre was rejected by the
respondents, it would be not open to him to put up any challenge to
the subsequent order, which is impugned herein.
13. Learned Additional Government Pleader has further
submitted that the power to search and seizure of record, etc. at the
sonography centre emanates from Section 30 (2) of the Act, 1994 and
is independent of the provisions contained in Section 20 of the Act,
1994. According to her, for exercise of power to search and seizure,
etc. under Section 30, it is not necessary to first proceed to suspend the
registration under Section 20(3) of the Act, 1994. She argues that
Section 30 power comes into play when appropriate authority acts on
the basis of some inputs received and reasonably believed by him to
prima facie indicate that an offence under the Act, 1994 has been or is
being committed at the sonography centre and on the other hand,
Section 20(3) power would be invariably exercised if action under
Section 30(2) is first taken.
14. Learned Additional Government Pleader has referred to us
the Government notifications dated 11/9/1997 and 06/11/2001
showing that the Civil Surgeon at every district and Medical
Superintendent at every taluka of the State of Maharashtra has been
appointed to be the appropriate authority for the respective areas
under his jurisdiction for the purposes of the Act, 1994. Relying on
these notifications, she has submitted that the impugned order has
been passed by a competent authority. She has also submitted that the
document titled, “Pavti Supurdnama” is not an order passed under
Section 20(3) of the Act, 1994 as sought to be canvassed on behalf of
the petitioner. According to her, it is only a receipt obtained from the
petitioner in acknowledgment of the petitioner receiving custody of
sealed sonography machine after the action of search and seizure was
taken at his hospital on 28/12/2012 and 29/12/2012. She has further
submitted that even if it is to be construed as some kind of order, still
it cannot be termed as illegal because it has been admittedly signed by
the Medical Superintendent of Rural Hospital, Khamgaon, who is a
competent authority as per notification dated 06/11/2001. She has
also submitted that Rural Hospital, Lakhanwada is a different hospital
than Rural Hospital, Khamgaon and the latter has jurisdiction over
Khamgaon taluka.
15. Learned Additional Government Pleader has further
submitted that the alternate remedy in the nature of appeal under
Section 21 of the Act, 1994 was available to the petitioner and he, not
having exhausted that remedy, could not approach this Court in its
writ jurisdiction for redressal of his grievances. She has further
submitted that there has been no malice in law and facts in the entire
action and, therefore, the petition is liable to be rejected.
16. On the rival submissions raised, the points arise for our
determination are as follows. :
(1) Whether the impugned order dated
21/11/2012 is unsustainable under law
and, if so, whether the seal of the
sonography machine is liable to be
removed?
(2) Whether there was any deemed renewal of
registration of sonography centre of the
petitioner?
(3) Whether passing of order under Section
20(3) of the Act, 1994 is a condition
precedent for sealing of a sonography
machine?
(4) Whether any contempt of this Court has
been committed by the respondent?
17. In order to answer these points, it would be necessary for us
to consider the important legal and factual aspects of the case.
The Act, 1994 has been enacted with some definite
objectives, they being prohibition of sex selection, regulation of
modern diagnostic techniques involved in the detection of genetic or
metabolic disorders and to prevent the incidence of female foeticide
triggered by misuse of sex determination test. For achieving these
objects, the Act, 1994 lays down a detailed scheme for regulating and
monitoring genetic counselling centres, genetic laboratories and
clinics, prenatal diagnostic techniques, etc. The Act, 1994 also
provides for appointing various supervisory and competent authorities
and creates certain offences by prohibiting certain acts and lays down
penal consequences for the acts prohibited. The objects and scheme of
the Act, 1994 being as they are, it would be necessary for the various
authorities thereunder to strictly follow the procedural requirements of
the Act.
18. On going through the provisions of the Act, 1994, one does
not come across such expression as “sonography centre”, though there
is reference to such words as, “genetic clinic” or “ultra sound clinic” or
“imaging clinic”. The impugned order and some other documents filed
in this petition, however, use the expression, “sonography centre”.
This expression has to be construed as “genetic clinic” within the
meaning of Section 2(d) of the Act, 1994 for the reason that the
sonography centre of the petitioner is being admittedly used for
conducting prenatal diagnostic procedures.
19. The State Government has power under Section 17(2) of
the Act, 1994 to appoint appropriate authorities for the purposes of
this Act and in exercise of this power, the State Government has issued
notifications dated 11/9/1997 and 06/11/2001 appointing Civil
Surgeons/Deans of Medical Colleges and Medical Superintendents of
Rural Hospitals at district and taluka levels as apporopriate authorities,
respectively to exercise their jurisdiction in the areas under their
control.
20. Important factual aspects arising from the facts admitted on
record are stated thus. Initially, the registration for sonography centre
of the petitioner was granted in the year 2007 for a period of five
years, which was to expire on 08/01/2012. Before expiry of the
registration centre, the petitioner moved an application before the
appropriate authority on 19/11/2011 for renewal of the registration
and this application was rejected on 07/01/2012 on the grounds that
the renewal proposal had certain deficiencies, registration of the centre
was already suspended and that the proceedings before the Court of
J.M.F.C., Khamgaon against the centre were pending. This rejection
order signed by the Civil Surgeon, Buldana, an appropriate authority
under the Act, 1994 in view of notification dated 11/9/1997, was not
brought to the notice of this Court when it set aside the order of
suspension of registration of the centre dated 21/12/2011 on
07/3/2012 in Writ Petition No. 163/2012. The order of suspension of
registration dated 21/12/2011 was passed as a sequel to the sealing of
sonography machine in a raid on the centre on 17/12/2011. After
sealing of the machine, a Criminal Complaint Case No. 119/2011 was
filed against the petitioner before J.M.F.C., Khamgaon. It was based
upon a complaint lodged by one Sarla Ravindra Khotare about alleged
disclosure of sex of foetus by the petitioner at his sonography centre.
There have been two more criminal cases filed later on against the
petitioner by the respondents namely, Criminal Case Nos. 2/2012 and
7/2013.
21. There has been one letter issued on 14/12/2012 by the
Civil Surgeon, Buldana to the petitioner whereby the petitioner has
been called upon to submit his M.B.B.S. degree certificate. In this
letter, there is a specific mention about grant of registration to the
sonography centre of the petitioner. There is also one document,
which is in formF, the form prescribed for maintenance of record in
respect of pregnant women by genetic clinic, filed by the petitioner.
In this form, registration number of sonography centre of the
petitioner has been mentioned as “New: Buldana/44 Old: 19” and the
document is dated 28/12/2012.
22. Now, if we take a look at the impugned order dated
21/12/2012, some startling facts come to the fore. Although, it cannot
be said that the impugned order specifies no reason at all, that the
reasons mentioned therein are extremely cryptic and incongruous to
the own action of respondent Nos. 3 and 4 in opening the seal of the
sonography machine on 15/6/2012 in compliance with the order of
this Court passed in Writ Petition No. 163/2012 on 07/3/2012. This
Court, on 07/3/2012, had quashed and set aside the order of
suspension of registration dated 21/12/2011, which was based upon
the action of sealing of the machine taken precisely on 17/12/2011.
As a consequence thereof, the authorities had to remove the seal and
they indeed removed it on 15/6/2012. The impugned order, however,
refers to sealing of the machine on 17/12/2011 and pendency of
judicial proceedings in respect thereof which form very basis of the
order. Thus, the reasons stated in just one line take us back to the
position as it obtained on 21/12/2011, which position changed in
favour of the petitioner after the order dated 21/12/2011 was set
aside by this Court on 07/3/2012 and seals were removed on
15/6/2012 in compliance with the order. No doubt, the impugned
order has been passed by duly appointed appropriate authority, i.e.
Civil Surgeon, Buldana, but, fact remains that its foundation and tenor
are inconsistent with the order of this Court passed on 07/3/2012 and
own actions of respondent Nos. 3 and 4 that followed thereafter.
23. Learned Additional Government Pleader submits that a
general reference to pending judicial proceedings in the impugned
order envisages pendency of not just one Criminal Case No. 119/2011
filed after sealing of the machine on 17/12/2011, but also second
Criminal Case No. 2/12, which was filed against the petitioner. She
also submits that order dated 07/3/2012 passed by this Court does
make it clear that the respondents may take any such further action in
the matter as they may be advised, in accordance with law and,
therefore, the respondents pursued these criminal cases. Therefore,
according to her, the pendency of two criminal cases should be
considered as additional reason apart from the reason of sealing of the
machine, for refusal to grant renewal of registration of sonography
centre of the petitioner.
24. While there is no doubt about the liberty granted to the
respondents to take further appropriate action in the matter, the
argument that reference to the judicial proceedings made in the
impugned order has to be construed as reference to not just one
criminal case but also another criminal case, cannot be accepted. The
impugned order clearly shows that reference of judicial proceedings
made thereunder is only in the context of 17/12/2011 sealing action
and nothing more. If the consideration of pendency of second criminal
case lay at the back of the mind of the appropriate authority while
passing the impugned order, nothing had prevented the appropriate
authority from making a specific reference to the second criminal case.
This, not having been done, it has to be held that the impugned order
is inconsistent with the order of this Court passed on 07/3/2012 in
Writ Petition No. 163/2012 and the own action of respondent Nos. 3
and 4 in removing the seal of the machine on 15/6/2012. There was
no reason for the appropriate authority to have made any reference to
sealing of the machine in the inspection taken on 17/12/2011 and
filing of a criminal case following sealing of the machine, when this
Court had on 07/3/2012 already found the action of suspension of
registration upon sealing of the machine on 17/12/2011 as
unsustainable in law and the respondent Nos. 3 and 4 too, on their
part, had complied with the order of this Court by removing the seal of
the machine.
25. The impugned order is of 21/12/2012 and there is one
letter dated 14/12/2012 issued by Civil Surgeon, Buldana to the
petitioner, wherein it is stated in no uncertain terms that the
sonography centre of the petitioner has been granted registration. This
letter finds no reference in the impugned order. We do not understand
as to why the impugned order does not make any reference to the
letter of 14/12/2012. No explanation in this regard nor any
clarification in respect of issuance of this letter itself has been provided
by the respondent to the Court. Similarly, no explanation has been
given by the respondents in respect of registration No. Buldana/44, as
mentioned in FormF (AnnexureD filed at page No.49 of the petition).
It is pertinent to note here that this document, FormF, is of
28/12/2012, i.e. seven days after refusal of grant of renewal of
registration of the centre on 21/12/2012. In absence of any
explanation having been submitted by the respondents, it has to be
found that the impugned order is not only contrary to what is stated in
the letter dated 14/12/2012 but also unfair in law. Having regard to
penal consequences provided under the Act, 1994, any action of the
appropriate authorities thereunder must be seen as answering the
requirements of fair play and proper compliance with procedure
prescribed thereunder. It must be stated here that Respondent Nos. 3
and 4 are appropriate authorities under the Act,1994 and are entrusted
with onerous responsibility of ensuring that genetic clinics or centres
are kept within the bounds of law and no one covered under the Act,
1994 violates or misuses the provisions of the Act and whosoever does
that, is brought to book. Therefore, it was expected that the action of
these authorities would be consistent with the provisions of the Act,
1994 and fair in law. That being not the position here, we agree with
the submissions of the learned Counsel for the petitioner made in this
regard and find that the impugned order cannot be sustained in law.
26. At this stage, it is necessary to advert to the law laid down
by the Hon’ble Apex Court as regards necessity of recording of reasons
in the case of Ravi Bhoiar (supra). When the law requires recording of
reasons for taking a decision, law also demands that reasons recorded
are adequate and show application of mind so that anyone aggrieved
by the decision, gets sufficient notice of material used against him and
can adopt appropriate course of action to redress his grievance. If the
recorded reasons exhibit nonapplication of mind or are insufficient,
there would be no reasons in law. In this case, as already discussed
above, there have been some reasons recorded in the impugned order,
but, the reasons so recorded do not seem to be showing any
application of mind to the facts and circumstances of the case by
respondent Nos. 3 and 4 and, therefore, applying ratio of the law so
laid down, we find that in the instant case also there have been
virtually no cogent reasons recorded for passing of the impugned order
and as such, the impugned order is unfair and arbitrary on this count
also. The Apex Court has, in judgment reported at (1978) 1 SCC 405
in the case of Mohinder Singh Gill and another Vs. The Chief Election
Commissioner, New Delhi & others, declared that the reasons recorded
in the order, cannot be supplemented later on.
27. Renewal of registration is dealt with by rule 8 of Rules,
1996 and the provisions relating to deeming effect for and renewal of
the registration are to be found in sub rule (6), which reads as under.
“In the event of failure of the Appropriate Authority
to renew the certificate of registration or to
communicate rejection of application for renewal of
registration within a period of ninety days from the
date of receipt of application for renewal of
registration, the certificate of registration shall be
deemed to have been renewed.”
28. It is clear from the above provision that upon failure of the
appropriate authority to either renew the certificate of registration or
communicate its rejection within a period of ninety days from the date
of application, the certificate of registration is deemed to have been
renewed. For giving deeming effect to the renewal of registration,
fulfillment of either of two conditions namely; failure to renew the
registration or failure to communicate rejection of application for
renewal is necessary. In this case, there is no dispute about making of
an application for renewal of registration by the petitioner second time
in the month of August, 2012 and also about it’s being made on the
advise of respondent Nos. 3 and 4. According to the petitioner, the
application was made on 03/8/2012 and according to the impugned
order dated 21/12/2012, the date of renewal application is
06/8/2012. There is one letter dated 23/8/2012 addressed to the
appropriate authority/Medical Superintendent, General Hospital,
Khamgaon by the Civil Surgeon, Buldana on the subject of renewal of
registration of sonography centre of the petitioner filed on record by
the petitioner at page 48 of the petition. This letter mentions date of
renewal application as 03/8/2012. The petitioner has not filed on
record a copy of his second renewal application filed in the month of
August, 2012. However, there being no dispute about the second
renewal application and variation in the dates of application, as
mentioned in two documents above referred to, being marginal, not
much difference would eventually be caused in computing the period
of ninety days for the purposes of rule 8(6) of the Rules, 1996. If we
take the date 06/8/2012 as mentioned in the impugned order as the
date of receipt of the renewal application, the prescribed period of 90
days would be over on 04/11/2012. So, from this date, deeming
provision under rule 8(6) would be applicable and as such it would
have to be held that the registration of the centre was deemed to be
renewed w.e.f. 04/11/2012.
29. The above referred conclusion also receives support from
the documents dated 14/12/2012 and 28/12/2012 about which we
have already made a detailed discussion in the earlier paragraphs.
Accordingly, we find that in this case there was a deemed renewal of
registration of the sonography centre of the petitioner.
30. Thus, the impugned order can be seen to be not only unfair
and arbitrary but also inconsistent with the provisions of the Act, 1994
in the sense that deeming effect of renewal of the registration in view
of the provisions of Rule 8(6) has been completely ignored by the
appropriate authority when it passed the impugned order on
21/12/2012. It appears that the appropriate authority has forgotten
that there is a rule providing for deemed renewal of registration of a
genetic or sonography centre. While we refrain from commenting on
what could be the possible reasons for the appropriate authority to
ignore the provisions of rule 8(6) in passing of the impugned order, we
would like to draw support from the observations of the Hon’ble Apex
Court in the case of Mehmood Nayyar Azam vs. State of Chhatisgarh
(supra) made in paragraph 1, page 6; “..law is the science of what is
good and just and, in the very nature of things, protective of civilized
society..”, referred to us by learned Counsel for the petitioner in saying
that the concerned authorities should have been more mindful of the
provisions of the Act, 1994 in passing of the impugned order. For this
reason also, we find that the impugned order is unsustainable and
liable to be quashed and set aside. Consequently, we further hold that
seal of the sonography machine is liable to be removed.
The first two questions are answered accordingly.
31. Section 20 of the Act, 1994 deals with cancellation or
suspension of registration. We are concerned in this case with Section
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20(3), which reads thus :
“Notwithstanding anything contained in sub
sections (1) and (2), if the Appropriate Authority is of
the opinion that it is necessary or expedient so to do
in the public interest, it may, for reasons to be
recorded in writing, suspend the registration of any
Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic without issuing any such notice referred
to in subsection (1).”
The above referred provision requires appropriate authority
to form an opinion based on some objective material that it is
necessary or expedient in the public interest to suspend registration of
a genetic clinic or centre. The provision also mandates the appropriate
authority to record reasons in writing. This provision begins with
nonobstante clause and, therefore, the subsection stands on its own
footing empowering the appropriate authority to suspend registration
for a temporary period or cancel it without even issuing show cause
notice and giving a reasonable opportunity of hearing to the genetic
clinic or centre. This subsection and also subsections (1) and (2), it
may be stressed, do not refer to seal or seizure of the sonography
machine.
32. Section 30 confers power upon the appropriate authority or
other authorized officer to carry out search and seizure at the genetic
clinic or centre where the appropriate authority has a reason to believe
that some offence under the Act, 1994 has been or is being committed.
It also authorizes the appropriate authority or other authorized officer
to seize and seal any record or material object found at the centre. In
the explanation to rule 12 of Rules, 1996, the terms, ‘seize’ and
‘seizure’ have been explained to include, ‘seal’ and ‘sealing’,
respectively. The explanation reads thus :
“(1) ‘Genetic Laboratory/Genetic Clinic/Genetic
Counselling Centre’ would include an Ultrasound
Centre/Imaging Centre/ nursing home/ hospital/
institute or any other place, by whatever name called,
where any of the machines or equipments capable of
selection of sex before or after conception or
performing any procedure technique or test for pre
natal detection of sex of foetus, is used;
(2) ‘material object’ would include records, machines
and equipments; and
(3) ‘seize’ and ‘seizure’ would include ‘seal’ and
‘sealing’ respectively.”
So, Section 30 of the Act, 1994 read with rule 12 of the
Rules, 1996 makes it abundantly clear that the appropriate authority
can carry out not only the search at the genetic clinic or centre but also
seal the relevant record and material objects with a view to use them
as evidence of the commission of offence punishable under the
provisions of the Act, 1994. The power under this Section comes alive
only when the appropriate authority reasonably believes that an
offence under the Act, 1994 has been or is being committed. This is
the only condition precedent prescribed under Section 30 for exercise
of power under it. But, there is no reference therein, whatsoever, for
suspension of the registration of genetic clinic or centre. Moreover, in
the present facts, the act of putting seal is under the impression that as
renewal was refused on 21/12/2012, use of the machine for genetic
procedures by present petitioner thereafter was not legal.
33. From the characteristic features of Section 20(3) and
Section 30, as discussed above, it would be clear that both are
independent sections and do not require action to be taken under
another section as a prelude to taking of action under one section.
There can be suspension of registration under Section 20 (3) and it
may or may not necessarily follow sealing of the machine thereafter
and there can be sealing of the machine without suspension of the
registration under Section 20(3) of the Act, 1994. The third question
is answered accordingly.
34. Learned Counsel for the petitioner has urged before us that
there has been a contempt of this Court committed by the respondents
as they have in willful disobedience of the directions given by this
Court on 07/3/2012 in Writ Petition No. 163/2012 passed the
impugned order. We are not inclined to accept this argument for the
reason that no material has been brought on record to show us that
there has been a willful disobedience of the order dated 07/3/2012
passed by this Court or that it was out of some mala fides on the part
of the respondents. The order dated 07/3/2012 only sets aside the
order dated 21/12/2012 and gives liberty to the respondents to take
such further action in the matter as may be advised in accordance with
law. Accordingly, respondent Nos. 3 and 4 proceeded with the
prosecution of criminal cases against the petitioner in the Court of
J.M.F.C., Khamgaon. But, it appears that respondent Nos. 3 and 4
were ill advised in referring to sealing of the machine and pendency of
criminal case relating to it in the impugned order. At the most, such
reference could only be described as erroneous in law and facts and
nothing more. For initiating contempt action, it is absolutely necessary
to show that there is either willful disobedience of the order of the
Court or some mala fide intention on the part of the contemnor in
committing the act complained of and which resulted in lowering
down of the dignity or esteem of the Court or amounted to
interference with administration of justice. No material having been
brought on record to enable this Court to draw such an inference, we
find that no case is made out for taking any action for contempt of the
Court as urged by the petitioner. The question is answered
accordingly.
35. Before parting with the judgment, we would like to address
the point of availability of alternate remedy to the petitioner under
Section 21 of the Act, 1994 put forth by the learned A.G.P. In this
case, there has been complete ignorance by the respondents of
quashing of the order of suspension of the registration of the
sonography centre dated 21/11/2011 by this Court on 07/3/2012 and
own admissions of respondent Nos. 3 and 4 as mentioned in the letter
dated 14/12/2012, while passing the impugned order. Similarly, they
missed the important legal aspect of deemed renewal of the
registration of the sonography centre. These factors would make the
impugned order as one without authority of law and jurisdiction. The
objection about availability of an alternate remedy also needs to be
rejected because of earlier judgment of this Court dated 07/3/2012
and cognizance taken therein. Here, it is apparent that though the
registration stood renewed for next five years, on 21/12/2012 under
erroneous impression, the renewal of registration has been refused.
Said order or the affidavit filed in support thereof, nowhere referes to
the recommendation or opinion, if any, expressed by the State
Advisory Committee. The facts noticed by us, as above, also indicate
that alternate remedy is not made out to be efficacious.
36. In the result, the petition is allowed. Impugned order dated
21/12/2012 is set aside. The respondents are directed to remove the
seal of sonography machine, forthwith. However, it is made clear that
the respondents would be at liberty to take such further action in the
matter as may be advised to them, in accordance with law.
Rule is made absolute in the above terms with no order as
to costs.
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