Back
2011 Supreme(Guj) 518
2012 (1) GCD 44 (Guj)
Hon’ble Smt. Justice Abhilasha Kumari
Dr. Kalpesh J. Patel
Versus
State of Gujarat & Ans.
Special Civil Application No. 6625 of 20111—Decided on 19/09/2011
Mr. M.B. Gandhi, Mr. Chinmay M. Gandhi, for the Petitioner.
Mr. Rashesh Rindani, Asstt. Government Pleader for the Respondent No. 1.
Mr. Nikhilesh J. Shah, for the Respondent No. 2.
Point in Issue :
Whether in the facts and circumstances of the case sealing of Sonography machines and suspension of the registration of petitioner clinic sustainable.
Headnote:Head Note :
The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994— Sections 4(3), 51(b), 20(1), 20(2), 21 and 30 — The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 — Rules 9(1), 9(4) and 10(1A), 12 and 19 — Constitution of India, 1950 — Articles 19(1)(g) and 226 — Contravention of the Provisions of the Act — Sealing two Sonography machines and suspension of the registration of petitioner clinic — Challenging the action of competent authority — Sustainability — Court held there has been no violation of the principles of natural justice as alleged in so far as the suspension of the registration of the clinic of the petitioner is concerned — The impugned notice given in this respect by competent authority can not said to be bad merely on technical consideration as there has been a substantial compliance with provisions of the Act — An opportunity of hearing was granted to petitioner which has been availed of by rendering his explanation by petitioner — That apart alternative statutory remedies are available to the petitioner under the Act and Rules with regards alleged action of the competent authority and no such contingency exists for invocation of the jurisdiction of the Court under Article 226 of Constitution by passing statutory remedies.
Held :
There has been no violation of the principles of natural justice insofar as the suspension of the registration of the Clinic of the petitioner is concerned. The impugned notice dated 28.04.2011 cannot be said to be bad merely on technical considerations as there has been a substantial compliance with the provisions of Section 20(1) and (2) of the PNDT Act. An opportunity of hearing has been granted to the petitioner, which has been availed of, by rendering his explanation.
[Para 51]
In Court considered view, as alternative statutory remedies are available to the petitioner under Rule 19 of the Rules and Section 21 of the PNDT Act, with regard to sealing of Sonography machines and suspension of registration of his Clinic, no such contingency exists justifying the invocation of the jurisdiction of this Court under Article 226 of the Constitution of India, by by-passing the statutory remedies. [Para 52]
Smt. Abhilasha Kumari, J.—As the parties to these petitions and the factual matrix are the same and the issues involved in both petitions are overlapping, it is found appropriate to decide the petitions, which were heard together, by a common judgment.
Special Civil Application No. 6625/2011:—
2. By preferring this petition under Article 226 of the Constitution of India, the petitioner has challenged the communication dated 13.05.2011, whereby the explanation dated 01.05.2011 offered by the petitioner to the notice dated 24.04.2011, issued by the Appropriate Authority (District Ahmedabad), for contraventions of the provisions of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (“the PNDT Act” for short) has not been accepted. The action of the Appropriate Authority of sealing two Sonography machines in the Clinic of the petitioner, as per Panchnama dated 13.05.2011, is also the subject-matter of challenge.
3. Briefly stated, the facts, as stated in the petition, and discernible from the material on record, are as follows. The petitioner is a Radiologist, holding an M.D., D.M.R.E. Degree. It is stated that the petitioner had been to France and Germany for about five years and had worked as a Radiologist in the King Khalid Hospital at Saudi Arabia. Thereafter, he had served in a Government department for five years and had later started his own independent Clinic in the year 2003. The petitioner, at one point of time, had a Sonography machine in a mobile van and his registration number was 478. On 12.05.2006, the respondent authority had seized certain documents leading to the sealing of the Sonography machines of the petitioner. This led to the filing of a petition by the petitioner, being Special Civil Application No. 14495 of 2006, which was disposed of, by order dated 03.08.2006 of this Court, subject to furnishing of an Undertaking by the petitioner. The petitioner filed Miscellaneous Civil Application No. 68 of 2007, seeking to withdraw the Undertaking, which was permitted, by order dated 05.02.2007. At that point of time, the petitioner had his Radiology Clinic at another place. Thereafter, the petitioner shifted to the present Clinic, which is being run under the name and style of “Dr.Kalpesh Patel’s Imaging House”. The petitioner applied, afresh, for registration of the said Clinic, which was granted on 08.04.2009, as Registration No. 813. The Certificate of Registration has been issued for five years and is valid upto 07.04.2014, subject to the provisions of the PNDT Act and Rules framed thereunder. It is stipulated therein, that any contravention of the PNDT Act and Rules will result in suspension, or cancellation, of the Certificate of Registration, before the expiry of five years, apart from prosecution.
4. On 13.02.2010, the Appropriate Authority under the PNDT Act visited the Clinic of the petitioner and carried out an inspection. Certain contraventions of the provisions of the PNDT Act were found, inasmuch as Form-F was not being filled up by the petitioner, though, as per the respondents, the PNDT Act requires that it should be filled up and signed by the concerned Radiologist or Gynaecologist, who conducts the Ultrasound procedure on pregnant women. The Appropriate Authority found that Form-F was being filled up by the staff of the petitioner which, as stated in the said notice, is a serious contravention. The petitioner replied to the notice on 19.02.2010, offering his explanation, and undertaking that he will take care in future, and that Form-F shall be filled in by him. The explanation of the petitioner was accepted by the Appropriate Authority, as communicated to the petitioner on 20.05.2010. The petitioner was directed to ensure strict compliance of the provisions of the PNDT Act. A second inspection of the Clinic of the petitioner took place on 23.09.2010, and five contraventions of the PNDT Act and Rules, in respect of filling up Form-F were found, as d
