Allowed

Dr. Sheela Subhash Rachewad v. the Assistant Municipal Commissioner, Nanded Waghala and Others

Bombay HC20 Mar 2013WP/1670/2013

Case brief

AI extract

What is this about?

Petitioner challenged the sealing of her sonography machine and suspension of registration by the Assistant Municipal Commissioner. The High Court held the Commissioner lacked authority as not designated under Section 17, the sealing order lacked required reasons under Section 30, and show cause notice requirements were not met, setting aside the actions.

What did the court decide?

Impugned actions of sealing the machine and suspending registration set aside; Rule made absolute.

Dr. Sheela Subhash Rachewad Vs the Assistant… — Pension and Retirement Benefits | Bombay HC (2013)

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1 W.P.1670.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1670 OF 2013

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Dr. Sheela W/o Subhash Rachewad,
Age : 37 Years, Occu.: Medical
Practitioner,
R/o Rachewad Netralaya and Prastuti
Gruha, Gokul Nagar, Nanded

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 Tq. and District Nanded

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 .. PETITIONER

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Versus

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1. The Assistant Municipal Commissioner, Nanded Waghala City Municipal Corporation, Nanded,

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 Tq & Dist. Nanded.

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

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3. 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.
Shri M. V. Deshpande, Advocate for Respondent
No. 1.

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Shri V. B. Ghatge, A.G.P. for Respondent Nos. 2
and 3.

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CORAM: S. V. GANGAPURWALA, J.

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 DATE : 20.03.2013.

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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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2 W.P.1670.13

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2.The petitioner’s sonography centre is

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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

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sake of brevity). The respondent No. 1 on
04.08.2011 sealed the sonography machine of the
petitioner and on 06.08.2011 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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3. Shri Dhorde, the learned Senior Counsel

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submits that the order sealing the machine does
not satisfy the test as laid down U/Sec. 30 of

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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

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3 W.P.1670.13

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action is illegal.

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4.The learned senior counsel further submits

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that the action of suspension of registration is
by the Assistant Municipal Commissioner who is
not an Appropriate Authority under the statute.

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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

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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.

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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

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for the reasons to be recorded can suspend the
registration without issuance of notice. The

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4 W.P.1670.13

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

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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

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5 W.P.1670.13

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machine.

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

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8.The Appropriate Authority is laid down
U/Sec. 17 of the 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.TheAssistantMunicipal
Commissioner is not designated as Appropriate
Authority under the said notification. No other

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6 W.P.1670.13

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notification is placed on record showing that

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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

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the Assistant Commissioners as Ward Officers

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would be entitled to take action under the

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P.C.P.N.D.T Act. Sec. 17 of the P.C.P.N.D.T

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Act does not authorize the Commissioner of
Municipal Corporation to appoint Appropriate
Authorities. It is only the Appropriate

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Authorities designated under the Statute or
appointed by the State Government in particular

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state would be entitled to act as Appropriate

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Authorities. When a statute lays down a
particular thing to be done in particular
manner, it has to be done in that manner only.

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The Assistant Municipal Commissioners are

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nowhere shown as Ward Officers. The order is

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also passed in the capacity of Assistant
Municipal Commissioner, Nanded. In absence of
any notification in that behalf by the State

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7 W.P.1670.13

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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 06.08.2011 i. e. for more than one and
half year.

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9.As far as sealing of the machine is

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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

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this fact. The authority has to arrive at a
conclusion upon subjective satisfaction based on
objective assessment of the facts. Perusal of

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8 W.P.1670.13

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the order sealing the machine it is manifest
that the said machine has been sealed as the

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record has not been properly maintained.

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10.For the aforesaid reasons, the impugned

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action cannot be sustained and the same is set
aside.

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Rule is accordingly made absolute in terms
of prayer clause “B”

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11. Needless to state that present order would

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not be an impediment for the authorities to take
action in accordance with the provisions of the
Statute and Rules.

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MTK

Dr. Sheela Subhash Rachewad v. the Assistant Municipal Commissioner, Nanded Waghala and Others

Case brief

What is this about?

What did the court decide?

Dr. Sheela Subhash Rachewad v. the Assistant Municipal Commissioner, Nanded Waghala 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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