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2013 Supreme(MP) 1244
MADHYA PRADESH HIGH COURT
S.K.Gangele, G.D.Saxena, JJ.
State of M.P. - Appellant
Versus
Vinod Kumar Khatar - Respondent
W.A. No. 473-2013
Decided On : 11-10-2013
For Appellant/Petitioner/Plaintiff:Smt. Nidhi Patankar, Govt. Advocate
For Respondents/Defendant:Shri R.B.S. Tomar , Shri Ajay Bhargava, Advocates
The main legal point established in the judgment is the requirement of registration and license for operating a clinical establishment under the M.P. Upcharyagriha Tatha Rujopchar Sambandhi Sthapanaye (Registration Tatha Anugyapan) Adhiniyam, 1973, and the authority of the Chief Medical and Health Officer for conducting inspections and taking actions under the Act.
Headnote:
Clinical Establishment - Seizure and Inspection - M.P. Upcharyagriha Tatha Rujopchar Sambandhi Sthapanaye (Registration Tatha Anugyapan) Adhiniyam, 1973 - Section 2, Section 3, Section 8 - The judgment discusses the provisions of the M.P. Upcharyagriha Tatha Rujopchar Sambandhi Sthapanaye (Registration Tatha Anugyapan) Adhiniyam, 1973, particularly focusing on the definition of 'clinical establishment' under Section 2, the requirement of registration and license under Section 3, and the penalties for offences under Section 8. The court emphasizes that no person is authorized to open, keep, or carry on a nursing home or clinical establishment without registration and license, and contravention of this provision is punishable with fines and imprisonment. The judgment also highlights the unauthorized inspection and seizure of the premises, and the appropriate authority for conducting inspections and taking actions under the Act.
Fact of the Case:
The respondent, a Radiologist, was found absent from duty and running a clinic without permission. The authorities conducted an inspection, seized the premises, and locked it. The respondent challenged the seizure and inspection on the grounds of incompetence of the inspecting committee.
Finding of the Court:
The court found that the committee conducting the inspection was not competent as per the provisions of the M.P. Upcharyagriha Tatha Rujopchar Sambandhi Sthapanaye (Registration Tatha Anugyapan) Adhiniyam, 1973. The respondent was found to have committed an offence under the Act by running a clinical establishment without registration and license.
Issues: Competence of the inspecting committee, unauthorized operation of a clinical establishment, and the legality of the seizure and inspection.
Ratio Decidendi: The court held that the unauthorized inspection and seizure were not justified, and the respondent had committed an offence under the Act by operating a clinical establishment without registration and license. The appropriate authority for conducting inspections and taking actions under the Act was emphasized.
Final Decision: The appeal was disposed of with directions for the Chief Medical and Health Officer to take action within the parameters of the Act, prohibiting the respondent from running the clinical establishment until the authority's decision, but permitting the use of the residential portion of the premises for residence.
Judgment:
1. This appeal is listed for admission, however, the counsel for the respondent appeared on advance notice, hence with the consent of the parties, the appeal is heard and disposed of finally. The appellants/State has filed this appeal against the order dt. 12.9.2013 passed by the learned Single Judge in W.P. No. 5366/2013(S).
2. The respondent challenged the seizure and inspection of the premises of the respondent on the ground that the authorities, who conducted inspection and locked the premises of the respondent, were not competent to conduct the inspection and seizure of premises.
3. The respondent has been working as Radiologist at District Hospital Morar, District Gwalior. The Collector District Gwalior conducted an inspection on 29.7.1993 of District Hospital Morar, District Gwalior. He found that the respondent, who is posted as Radiologist in the District Hospital Morar, was absent from duty. On enquiry, the Collector was informed further found that the respondent was the only Radiologist posted at District Hospital Morar. Civil Surgeon informed the Collector that the respondent was absent from duty since 25.7.2013 after submitting an application for earned leave. The Collector cancelled the leave of the respondent and he was directed to report on duty, however, the respondent did not turn up on duty. Various complaints were received by the Collector against the respondent. It was complained informed that the respondent had been running a clinic at his own home which is near Hajira Chouraha, Gwalior, then the Collector Gwalior constituted a committee under the administrative and supervisory power headed by Naib Tahsildar, who is also Executive Magistrate alongwith Dr. A.P. Shrivastava and other 2-3 persons as members of the Committee.
4. The Committee inspected the premises situated at 24-25 Tansen Nagar, Gwalior. It was found that the respondent had been running a clinic at his residence and he had installed an X-ray machine. The whole episode was videographed. Since it was found that the respondent had been running a medical establishment without any permission and registration or against the instruction of the government, respondent No. 3 had taken action in the matter in accordance with the direction issued by the Collector. The premises was seized and a lock was put on the door of the premises. Because the clinical activities without registration were not permitted under the law, hence, the activities have been stopped by the competent authority.
5. Learned Single Judge has allowed the petition on the ground that the committee headed by Naib Tahsildar was not competent to conduct any inspection of the premises of the respondent in accordance with the provisions of M.P. Upcharyagriha Tatha Rujopchar Sambandhi Sthapanaye (Registration Tatha Anugyapan) Adhiniyam, 1973 (hereinafter referred to Act of 1973) and the rules made thereunder neither the same could be sealed.
6. The State has enacted the act named as M.P. Upcharyagriha Tatha Rujopchar Sambandhi Sthapanaye (Registration Tatha Anugyapan) Adhiniyam, 1973 (hereinafter referred to Act of 1973) It was amended by the amending Act namely M.P. Act No. 16 of 2008. Section 2(aa) of the aforesaid Act defines 'clinical establishment', which is as under:-
Clinical establishment" means a medical laboratory a physiotherapy establishment, a clinic, or an establishment analogous to any of them, by whatever name called;
7. Section 3 of Chapter II of the aforesaid Act prescribes that Nursing Home or Clinical Establishment not to open, kept or carried on without registration and licence. The aforesaid section is as under:-
3. Nursing home or clinical establishment not to be opened, kept or carried on without registration and license. No person shall open, keep or carry on a nursing home or a clinical establishment without being registered in respect thereof and except under and in accordance with the terms of a licence granted therefor.
8. Section 8 of the Chapter III prescribe
