Allowed

Kalpna Pundlik Jamdade v. the Assistant Municipal Commissioner, Nanded and Others

Bombay HC13 Mar 2013WP/1637/2013

Case brief

AI extract

What is this about?

The court set aside orders sealing the petitioner's sonography machine and suspending its registration. It held that the Assistant Municipal Commissioner lacked authority as an Appropriate Authority and that the sealing order failed to record necessary subjective satisfaction regarding potential offenses.

What did the court decide?

Set aside the order sealing the machine and the suspension of registration; make the rule absolute.

Kalpna Pundlik Jamdade Vs the Assistant… — Constitutional and Fundamental Rights | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1637 OF 2013

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Dr. Kalpna W/o Pundlik Jamdade, Age : 46 Years, Occu. : Medical Practitioner, R/o Jamdade Hospital, 65, Boreban Area, Vazirabad, Nanded, Tq. & Dist. Nanded. .. Petitioner

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Versus

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The Assistant Municipal Commissioner, Nanded Waghala City Municipal Corporation, Nanded, Tq & Dist. Nanded.

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The District Appropriate Authority, and Collector, Nanded, Tq. & Dist. Nanded.

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The State Appellate Authority, Saint Gorge Hospital, At Mumbai. .. Respondents

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Shri R. N. Dhorde, Senior Advocate i/by Shri V. R. Dhorde, Advocate for the Petitioner.

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Shri M. V. Deshpande, Advocate for the Respondent No. 1. Shri V. B. Ghatge, A.G.P. for Respondent Nos. 2 and 3.

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CORAM : S. V. GANGAPURWALA, J. DATE : 13TH MARCH, 2013.

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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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The petitioner’s sonography centre is registered under provisions of the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (hereinafter referred as to the “P.C.P.N.D.T Act” for the sake of brevity). The respondent No. 1 on 17.07.2011 sealed the sonography machine of the petitioner and on 19.07.2011 suspended the registration of the petitioner’s sonography centre. The petitioner assailed said orders before the Appellate Authority, however, the said appeal came to be dismissed. Aggrieved thereby present petition.

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Shri Dhorde, the learned Senior Counsel submits that the order sealing the machine does not satisfy the test as laid down U/Sec. 30 of the P.C.P.N.D.T Act. read with Rule 11 and 12 of the P.C.P.N.D.T Rules. According to the learned Senior Counsel the authority sealing the machine had no reason to believe that the said machine may furnish evidence of commission of an offence under the Act. In the light of that the action is illegal.

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The learned senior counsel further submits that the action of suspension of registration is by the Assistant Municipal Commissioner who is not an Appropriate Authority under the statute. By notification the State has designated the Appropriate Authorities and the Assistant Municipal Commissioner is not designated as Appropriate Authority. As per Sec. 17 of the P.C.P.N.D.T Act, it is only the Government who by notification in official Gazette appoint the Appropriate Authorities. Even the order of suspension is passed without issuance of show cause notice. Sub Section 1 and 2 of Sec. 20 of the P.C.P.N.D.T Act have not been followed. There was no case made out to resort to Sub Sec. 3 of Sec. 20 of the P.C.P.N.D.T Act. Sub Sec. 3 of Sec. 20 of the P.C.P.N.D.T Act is an exception wherein the Appropriate Authority if finds it expedient in the public interest and for the reasons to be recorded can suspend the registration without issuance of notice. The case is not spelt out to invoke Sub Sec. 3 of Sec. 20 of the P.C.P.N.D.T Act. Only because some irregularities are found in maintenance of the forms, the action has been taken. Even the same are not the irregularities.

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Shri M. V. Deshpande, the learned counsel for the

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respondent No. 1 supports the action and submits that a detailed order has been passed giving reasons by the respondent No. 1. It has been observed in the order by the respondent No. 1 that the petitioner has engaged in large scale irregularities. The record of F Form was not available for a period of July 2009 to September 2010 for inspection. The monthly reports were not submitted. The declaration of pregnant women has not been taken and false monthly statement of sonography record was submitted to the Appropriate Authority. The details have also been given in the order itself of large scale deficiencies. The Appropriate Authority thought it expedient in the public interest to suspend the registration of the ultrasound machine.

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According to the learned counsel, it is a fact that sex ratio of Nanded district is declining continuously and primarily due to the misuse of Pre-Natal Diagnostic Techniques used for sex determination leading to elimination of female foetus.

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The learned A. G. P. also supports the action taken by the respondent No. 1.

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The Appropriate Authority is laid down U/Sec. 17 of the

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P.C.P.N.D.T Act. It is State Government who by notification in the official Gazette can appoint one or more Appropriate Authority for any part of the State or whole of State. The notification is produced on record and the persons designated as Appropriate Authorities are spelt out in the said notification. The Assistant Municipal Commissioner is not designated as Appropriate Authority under the said notification. No other notification is placed on record showing that the Assistant Municipal Commissioner is designated as an Appropriate Authority. The reliance is placed on the order dated 17.06.2011 issued by the Commissioner of Nanded Waghala Municipal Corporation, wherein it is said that the Assistant Commissioners as Ward Officers would be entitled to take action under the P.C.P.N.D.T Act. Sec. 17 of the P.C.P.N.D.T Act does not authorize the Commissioner of Municipal Corporation to appoint Appropriate Authorities. It is only the Appropriate Authorities designated under the Statute or appointed by the State Government in particular state would be entitled to act as Appropriate Authorities. When a statute lays down a particular thing to be done in particular manner, it has to be done in that manner only. The Assistant Municipal Commissioners are nowhere shown as Ward Officers. The order is also passed in the

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capacity of Assistant Municipal Commissioner, Nanded. In absence of any notification in that behalf by the State Government, the said Assistant Municipal Commissioner cannot be an Appropriate Authority. The action taken by him of suspending the registration would be without authority and deserves to be set aside. Even otherwise, the registration of petitioner’s centre is suspended since 19.07.2011 i. e. for more than one and half year.

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As far as sealing of the machine is concerned, the same is contemplated U/Sec. 30 of the P.C.P.N.D.T Act read with Rules 11 and 12 of the P.C.P.N.D.T Rules. The Appropriate Authority or any person authorized in that behalf can resort to action of sealing sonography machine, if the said authority has reason to believe that the said machine may furnish evidence of commission of offence under the P.C.P.N.D.T Act. In the present case, the order sealing the machine does not spell out this fact. The authority has to arrive at a conclusion upon subjective satisfaction based on objective assessment of the facts. Perusal of the order sealing the machine it is manifest that the said machine has been sealed as the record has not been properly maintained.

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For the aforesaid reasons, the impugned action cannot be sustained and the same is set aside.

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Rule is accordingly made absolute in terms of prayer clause

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“B”

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Needless to state that present order would not be an impediment for the authorities to take action in accordance with the provisions of the Statute and Rules.

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Sd/-

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[ S. V. GANGAPURWALA, J. ]

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bsb/March 13

Kalpna Pundlik Jamdade v. the Assistant Municipal Commissioner, Nanded and Others

Case brief

What is this about?

What did the court decide?

Kalpna Pundlik Jamdade v. the Assistant Municipal Commissioner, Nanded and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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