Allowed

Vijaymala Vishal Akate v. the State of Mah and Ors.

Bombay HC17 Dec 2012WP/9913/2012

Case brief

AI extract

What is this about?

The High Court at Aurangabad allowed a writ petition challenging the cancellation of a Sonography Center's registration and sealing of its machine. The court held the actions violated procedural mandates of the PCPNDT Act due to lack of show cause notice, hearing, and requisite subjective satisfaction for sealing.

What did the court decide?

Impugned order cancelling registration and sealing machine quashed and set aside. Rule made absolute.

Vijaymala Vishal Akate Vs the State of Mah… — Pension and Retirement Benefits | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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WRIT PETITION NO.9913/2012

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Dr.Vijaymala W/o Vishal Akate Age 32 yrs, Occ-Radiologist Indumati Netralaya & Sonography Centre, Main Market, Sillod, Dist.Aurangabad.

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.. Petitioner

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1]The State of Maharashtra through its Secretary, Drug & Medical Education Dept. Mantralaya, Mumbai-32.

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[Copy to be served on the Govt. Pleader High Court of Judicature Bench at Aurangabad]

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2]The Chief Secretary General Administration Department Mantralaya, Mumbai

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3]The Commissioner [Family Welfare & Director, National Rural Health Commission, Mumbai.]

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4]The Collector, Aurangabad.

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5]The Medical Superintendent Sub District Hospital, Sillod Tq. Sillod, Dist.Aurangabad

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And the Appropriate authority.

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.. Respondents

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Mr.C.V.Thombre, Adv.for petitioner. Mr.K.G.Patil,A.G.P. for State

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CORAM : S.V.GANGAPURWALA,J. DATE : 17th DECEMBER 2012.

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ORAL JUDGMENT:

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. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.

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2] The registration of the petitioner’s Sonography Center has been temporarily cancelled and the machine sealed, vide panchanama dated 22/11/2012.

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3] Heard Mr. Thombre, the learned counsel for the petitioner and Mr.Patil, the learned A.G.P. Leave to correct Prayer clause “B” is granted.

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4] It is not disputed that prior to taking action of temporarily cancelling registration of the petitioner’s Sonography Center, no show cause notice nor any hearing was accorded to the petitioner. On the date when the visit was made and the panchanama drawn, in that panchanama itself, the order was passed cancelling the registration of the petitioner’s Sonography Center, so also, sealing

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the machine.

5] Sub Section 1 of Section 20 of the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [PCPNDT Act, for short] mandates issuance of show cause notice. Sub Section 2 of Section 20 of the said Act requires a hearing to be given and thereafter, only the authority can either suspend or cancel the registration of the Sonography Center. Exception is carved out by virtue of Section 3 of the said Act, wherein, if the authority finds it expedient or necessary so to do in the public interest, it can suspend the registration of the Sonography Center.

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6] Sub section 3 of Section 20 of the PCPNDT Act has to be resorted in exceptional cases i.e. the authority has to arrive at a subjective satisfaction based on the objective assessment about the existence of the emergent situation and that too in the public interest. Moreover, Sub Section 3 of Section 20 of the said Act, only authorises the authority to suspend the registration of the center and not to cancel the registration. In the present case, without issuing a show cause notice, and without affording an opportunity of hearing, the appropriate authority has cancelled the registration. The cancellation of registration is also contemplated u/s 23 by the Medical Council. In the present matter,the action is taken by the Medical Officer i.e. the apprpriate authority u/s 20 of the PCPNDT Act. The said action is contrary to Section 20 of the

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said Act and as such cannot be sustained.

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7] As far as sealing of machine is concerned, the machine can be sealed u/s 30 of the said Act. Read with Rules 11 and 12 of the said Rules, only if the authority concerned has reason to believe that the said machine is being used for commission of offence as contemplated in the said Act. The order/panchanama does not show the subjective satisfaction based on objective assessment of the authority in arriving at such conclusion.

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8] In a case in Writ Petition No.6557/12, vide order dated 11/9/12, I had dealt with in detail a concept of “Reason to believe”. I had observed as under :

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“17] “Reason to believe” or “reasonable belief” means coming to factual conclusion on the basis of information that a thing, condition, statement or a fact exists. Reason to believe contemplates an objective determination based on intelligent care and deliberation as distinguished from purely subjective consideration. The said expression is not synonymous to subjective satisfaction of the authority. It postulates belief and existence of reason

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for that belief. The belief has to be held in good faith. It cannot be a mere pretence. The reason for the belief must have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant for the purpose of the section.”

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9] In the present matter also, as the authority has failed to arrive at such conclusion, the order sealing the machine also cannot be upheld.

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10] In view of the above, Writ Petition is allowed. The impugned order cancelling the registration and sealing the machine is quashed and set aside. Rule is accordingly made absolute in above terms. No costs.

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[S.V.GANGAPURWALA,J.]

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umg/

Vijaymala Vishal Akate v. the State of Mah and Ors.

Case brief

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Vijaymala Vishal Akate v. the State of Mah and Ors.

Case brief

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