Dismissed

Mehul Acharya, Appropriate Authority (Pc and Pndt) and. Dy. Health Officer v. Jayesh Kantilal Shah

Gujarat HC13 Nov 2019LPA/1669/2019

Case brief

AI extract

What is this about?

At its first hearing, the Gujarat High Court addressed an appeal against an order quashing the seizure of a sonography machine. The bench upheld the Single Judge's decision, finding no illegal prejudice as the criminal case was still pending without a charge-sheet. The appeal was dismissed, and the machine de-sealing order was affirmed.

What did the court decide?

Dismissal of the Letters Patent Appeal and disposal of the connected Civil Application for stay.

Mehul Acharya, Appropriate Authority… — Constitutional and Fundamental Rights | Gujarat HC (2019)

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C/LPA/1669/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 1669 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 11262 of 2019

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With

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CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 In R/LETTERS PATENT APPEAL NO. 1669 of 2019

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MEHUL ACHARYA, APPROPRIATE AUTHORITY (PC AND PNDT) AND. DY. HEALTH OFFICER

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Versus JAYESH KANTILAL SHAH

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Appearance: MR NIKHILESH J SHAH(3007) for the Appellant(s) No. 1 MR AD OZA(515) for the Respondent(s) No. 1

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH and HONOURABLE MR.JUSTICE A.J. SHASTRI

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Date : 13/11/2019

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ORAL ORDER (PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)

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Present Letters Patent Appeal under Clause 15 of the Letters Patent is filed for the purpose of seeking correction of the order passed by the learned Single Judge date 26.8.2019 in Special Civil Application No.11262 of 2019.

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The case, in brief, is that respondent – original petitioner is M.D. (Obstetrician and Gynecologist) and practicing since 1991. The wife of the respondent is also a visiting Gynecologist at Old Madhupura Vepari Mahajan Mandal, Ahmedabad. The respondent is also associated with RNS Trust Hospital,

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C/LPA/1669/2019 ORDER

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Dhandhuka and also having vast professional experience in the medical field as Gynecologist. The respondent is also having registration under (Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act,1994 (for short ‘the Act’) since 2002 and the same was renewed from time to time. Though the respondent is having registration right from the year 2002, he is not involved in any kind of complaint or grievance.

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2.1 According to the respondent, two persons, namely, (i) Dr.Mehul Acharya (Corporation Area), Appropriate Authority PC & PNDT Act & Deputy Health Officer and (ii) Dr.Daksha Maitrak visited the hospital of respondent on 14.5.2019 for verification purpose, since an application was submitted on 13.5.2019 to the Appropriate Authority and Chief District Health Officer, Ahmedabad for seeking transfer of Sonography machine from 2, Mohanlal Gandhi Park Society, First Floor, Opp.B.J.Medical College, Civil Hospital Camp Road, Ahmedabad to just adjoining place at 1, Mohanlal Gandhi Park Society on the First Floor. Instead of verifying and completing formality, one of the officers abruptly started questioning the respondent and his wife and sought certain documents and records. It was also pointed out that on account of renovation work at a place where Sonography machine was placed vide communication dated 16.3.2018, way

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C/LPA/1669/2019 ORDER

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back the respondent did inform the Appropriate Authority about such temporary transfer of machine to just adjoining block. Despite the aforesaid circumstances though having been pointed out, the authority had seized the original and duplicate Form-B of the respondent with his certificate of clinic / Sonography machine; panchnama carried out on 14.5.2019 and also seized all office copies of Form-FS from the clinic which were on-line provided in view of Rule 9(8) of the PC & PNDT Rules.

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2.2 The case of the respondent herein was that there was absolutely no allegation with regard to conducting of sex determination of foetus and there was no slightest doubt even raised against the respondent. The officers conducted the seizure and in turn, sealed the Sonography machine by just executing a panchnama.

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2.3 A show cause notice dated 16.5.2019 came to be served upon the respondent by a different Authority i.e. Appropriate Authority and Chief District Health Officer, Jilla Panchayat, Ahmedabad, who originally granted registration to the respondent. Said show cause notice appears to have been issued in purported exercise of power under Section 20(1) of the Act, which, according to the respondent, was effectively replied on

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C/LPA/1669/2019 ORDER

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23.5.2019. Since considerable long time passed on after sealing the Sonography machine and since the said sealing process was published in the newspaper which has got the effect of defaming the respondent, the respondent herein approached the Court by way of Special Civil Application under Article 226 of the Constitution of India for challenging the action of sealing of Sonography machine and asked for the following reliefs :

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“A. This Hon’ble Court may be pleased to admit and allow this petition;

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B. This Hon’ble Court may be pleased to issue writ of mandamus or any other appropriate writ, order or direction or writ in the nature of certiorari, quashing and setting aside the action of sealing of sonography machine taken on 14.5.2019 as stated in the panchnama dated 14.5.2019 and panchnama drawn by the respondent authority (Annexure-B) and be pleased to declare that the action of sealing of sonography machine by the respondent authority is highly improper, unjust, illegal, mala-fide, arbitrary and violative of Section 30 of the PC & PNDT Act and Rule 12 of the PC & PNDT Rules and further be pleased to direct the respondent authority to de-seal the sonography machine of the petitioner forthwith;

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C. Pending admission, hearing and final disposal of this

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C/LPA/1669/2019 ORDER

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petition, this Hon’ble Court may be pleased to direct by way of an ad-interim relief to respondent authority to remove the seal forthwith which was applied on sonography machine as same is per se illegal; and in violation of principles of natural justice.

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D. Pending admission, hearing and final disposal of this petition, this Hon’ble Court may be pleased to restrain the respondent from taking any coercive steps against the petitioner;

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E. This Hon’ble Court may be pleased to grant any other and further reliefs, as the nature and circumstances of the present case may require.”

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2.4 The writ petition was heard after completion of necessary pleadings of both the sides and the matter was taken up for hearing by the learned Single Judge. Since the submissions of the respondent herein were related only for the purpose of considering the relief regarding de-sealing of sonography machine in the aforementioned writ petition, the learned Single Judge, after hearing both the sides and after considering the relevant provisions of the Act and the Rules, was pleased to allow the petition and direct the present appellant – authority to de-seal the sonography machine within a period of 2 weeks from the date of receipt of the order. It is this order passed by the

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C/LPA/1669/2019 ORDER

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learned Single Judge is made the subject matter of present Letters Patent Appeal before us.

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Shri N.J.Shah, learned counsel appearing on behalf of the appellant authority, has vehemently contended that the sealing process is conducted by the authorized officers and the same is in close conformity with the relevant process and the procedure prescribed under the Act and the Rules. It has been contended that there was a clear satisfaction arrived at by the authority during the course of verification that respondent herein had not maintained the complete record and thereby, has frustrated the very object and mandate of Rule 9 of the PC & PNDT Rules. It has been contended that non-maintaining of relevant record as mandated by the statute is constituting a serious act and the offence and the same is not to be treated merely a procedural lapse. This stringent provisions are mandatory and required to be observed by the respondent herein which unfortunately has not been, resultantly the appellant authority was constrained to take an action. It has been pointed out that there is a specific remedy available under the statute, precisely under Section 19 by way of an appeal and, therefore, unless and until the statutory remedy is exhausted, there can be no exercise of extraordinary jurisdiction.

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C/LPA/1669/2019 ORDER

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3.1 Shri N.J.Shah, learned counsel, has submitted that the

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learned Single Judge, while passing the order impugned, has not properly considered the submissions and dealt with the same in its true perspective and has also erroneously come to the conclusion that yet the sonography machine is to be treated as muddamal. The learned Single Judge, according to Shri Shah, has not properly appreciated and considered the finding of criminal case. By referring to the complaint which has been filed in respect of this episode, a contention is raised that since the criminal case is ceased by the learned Magistrate, in view of the settled position of law it is only the learned Magistrate where the complaint is filed, is competent to consider the de-sealing request of sonography machine. That fact having not been properly construed by the learned Single Judge, an error is committed which deserves to be corrected. It has further been submitted by Shri Shah, learned counsel, that certain relevant pleadings which are referred to in the reply, has not been dealt with. Resultantly, the order also suffers from the vice of nonapplication of mind. Learned counsel has strenuously relied upon the decision delivered by the Apex Court in Civil Appeal No.8269 of 2009, decided on 9.12.2009 and ultimately, contended that in view of this proposition of law laid down by the

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Apex Court, no extraordinary jurisdiction could have been exercised. That being so, the order apparently is not sustainable in the eye of law and the same deserves to be corrected. No other submissions have been made.

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As against this, Shri A.D.Oza, learned counsel appearing on behalf of the respondent, has vehemently opposed the stand of the appellant authority. It has been contended that here is a case in which there is no cogent evidence available with the appellant authority to justify the action. On the contrary, on the basis of office copy material, the authority has presumed that act has been committed by the respondent and thereby, proceeded with. Such an arbitrary act on the part of appellant authority is not recognized under the law. Shri Oza, learned counsel, has vehemently submitted that here is a case in which the respondent is having a long standing bright and unblemished career as a professional doctor. On account of some unforeseen circumstances, with a view to defame the respondent, in an arbitrary manner the appellant authority has acted as a power charged authority. Learned counsel further submitted that this illegal sealing of sonography machine is not at all a justifiable act on the part of authority and that having been appreciated by the learned Single Judge, the order requires

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C/LPA/1669/2019 ORDER

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no interference. In fact, overall reading of the record indicates that there is no allegation worth the name about sex determination of foetus nor any such incident occurred even in past of such a nature which may permit the authority to act in such an arbitrary manner. The action, according to learned counsel, is absolutely illegal, not in consonance with the provision of the Act and the Rules, resultantly no error is committed by the learned Single Judge.

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4.1 On the contrary, the learned Single Judge has by passing an order not prejudicially affected the rights of appellant authority of any nature nor has passed any order which may influence even the parallel pending proceedings against the respondent, since the only issue related to sealing of sonography machine is considered. That being so, in the absence of any prejudice to the appellant authority since the order is passed after assigning cogent reasons, the same may not be disturbed in any manner.

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4.2 It has further been contended by Shri Oza, learned counsel, that even in the order of suspension which has been passed against the respondent of registration is the subject matter of yet another proceedings in the form of Special Civil

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C/LPA/1669/2019 ORDER

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Application No.16038 of 2019 in which after hearing, a notice came to be issued and keeping this fact consciously in mind, without observing anything on merit related to the overall act, in the present proceedings only issue related to sealing is dealt with. It has been stated that there is no irregularity of any nature committed in any form; there is no violation of any rules and the procedure contained therein and on the contrary, as a law abiding citizen, even for shifting the sonography machine from one block to another in the very same premises, intimation was given and still, the action is taken in an arbitrary manner. It has further been submitted that the judgment which has been relied upon by the learned counsel is ex-facie not applicable in view of the fact that in a criminal case which has been filed, no cognizance is taken yet by the learned Magistrate and nothing is served upon the respondent. When that be so, no error can be said to have been committed by the learned Single Judge while passing the impugned order. In view of aforesaid circumstances which are prevailing, there is hardly any case made out by the appellant to sustain the Letters Patent Appeal. It has further been contended that sealing of costly sonography machine is not going to achieve any purpose of authority in any manner or in any form. There is no reason to believe by the appellant

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C/LPA/1669/2019 ORDER

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authority that sonography machine may furnish any evidence of commission of any offence as punishable under the Act and as such, keeping in view the decision delivered by the coordinate bench of this Court in Letters Patent Appeal No.1371 of 2009, decided on 7.12.2009, Shri Oza, learned counsel, has requested to dismiss the present Letters Patent Appeal.

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4.3 Shri Oza, learned counsel, has further submitted that out of several forms i.e. 1837 forms for the period commencing from 1.1.2017 to 14.5.2019, only six forms are allegedly found deficient and by that time, series of deliveries have taken place about more than 200 in number. Had there been any conduct on the part of respondent to carry out any irregularity, even this would have not been found by the authority. The respondent herein is a well recognized doctor, having good reputation in the area and had never been indulged in any kind of such activity which may constitute any offence or misconduct of any nature and, therefore, the appeal is requested to be dismissed by awarding cost.

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Having heard learned counsel appearing for the respective parties and having gone through the material on record in the context of examining the correctness of an order passed by the

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learned Single Judge, we have noticed that it is not even the case of the authority that any substantive act is committed by the respondent nor any allegation is made about sex determination of foetus. It has also been revealed from the record that this action is initiated on the basis of office copies of the record maintained in the hospital and there appears to be no independent material to justify the sealing of sonography machine. Since here in the present proceedings we are only concerned with the decision delivered by the learned Single Judge related to de-sealing of sonography machine, without going into other aspects, apparently we find that the order passed by the learned Single Judge is in close conformity with the material on record and the same has been passed at length after extending full opportunity to both the sides.

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We have also noticed from the order passed by the learned Single Judge that while passing the order impugned, the relevant provisions of the Act and the Rules have taken note of by the learned Single Judge and has also considered the decision delivered by the Apex Court as pressed into service and after close examination of panchnama and other materials, the order of de-sealing of sonography machine is passed. While examining this issue about the sealing of sonography machine, it has been

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noticed that prior to shifting of location of machine at just adjacent block, an application also appears to have been submitted and a fact has also been taken note of by the learned Single Judge that in a criminal case, the sonography machine is yet to be treated as muddamal as no cognizance is taken. Further, while passing the order, it is clearly mentioned by the learned Single Judge that only issue sealing of sonography machine is dealt with. Even before us also, it has not been brought out that after completion of investigation, any chargesheet has been submitted. On the contrary, a reference is made about the issuance of summons pursuant to order dated 16.5.2019 but, said summons has also not been served as stated before us nor any material about it is brought before us. As a result of this, the overall material on record and the close reading of the order passed by the learned Single Judge, we see no error of any nature crept in while passing the order.

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At this stage, Shri N.J.Shah, learned counsel, has brought to our notice the decision delivered by the Apex Court in case of Federation of Obstetrics and Gynecological Societies of India

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(FOGSI) v. Union of India & Ors. , reported in AIR 2019 SC 2214 and submitted that even non-compliance of the relevant

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C/LPA/1669/2019 ORDER

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procedure related to Rule 9 and the other provision is also to be treated as substantive misdeed which may punish an erring person under the Act. But since we are not examining the action in the context of suspension of the registration, we do not want to express our opinion in this regard in any form since the petition is at large before the appropriate bench. Hence, we are not impressed by the submissions made by the learned counsel for the appellant. We accordingly are of the opinion that the appeal lacks merit.

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Additionally, while going through the decision which has been brought before us and pointed out by the learned counsel for the appellant which is a decision rendered in Civil Appeal No.8269 of 2009, it appears that the facts were altogether different. In the said decision, the criminal offence pursuant to which the seizure has taken place and complaint was thoroughly investigated and the charge-sheet was also filed before the appropriate court. Whereas on the case on hand, even it has not satisfactorily been pointed out either before the learned Single Judge or even before us that the summons which is sought to have been issued in criminal case is yet served or not, is questionable and as such also, when the facts are distinct from the said decision of the present case, we see no reason to apply

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the said decision as a straitjacket formula because the law of precedent is indicating that if the facts are different, even one additional fact would make a world of difference in applying the ratio. Resultantly, having examined the order passed by the learned Single Judge, we are satisfied that no error is committed by the learned Single Judge. Accordingly, we deem it proper to dismiss the appeal.

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As a result of this, present Letters Patent Appeal stands dismissed.

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Consequently, connected Civil Application No.1 of 2019 also stand disposed of.

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While parting with the present order, a request is made by Shri Shah, learned counsel for the appellant, to suspend the operation of the present order.

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But we see no justification in considering such request. Accordingly, the request is rejected.

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(VIKRAM NATH, CJ)

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(A.J. SHASTRI, J)

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V.J. SATWARA

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Mehul Acharya, Appropriate Authority (Pc and Pndt) and. Dy. Health Officer v. Jayesh Kantilal Shah

Case brief

What is this about?

What did the court decide?

Mehul Acharya, Appropriate Authority (Pc and Pndt) and. Dy. Health Officer v. Jayesh Kantilal Shah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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