Writ Petition No. 5231 of 2011

7th March, 2012

Petitioner Counsel: Mr. ANAND DESHPANDE
Respondent Counsel: Ms. TAJWAR KHAN

JUDGMENT

P.B. VARALE, J. :- Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel for the respective parties.

2. By the present petition, the petitioner who is running a sonography centre i.e. a Genetic Clinic with a sonography manchine namely 'Shinde hospital', is challenging the order dated 07.12.2010 passed by respondent no.3 Civil Surgeon, Buldhana.

3. Mr. Deshpande, the learned counsel for the petitioner submits that the petitioner is a qualified Doctor having M.B.B.S. degree at his credit and runs a clinic namely Shinde Hospital. He further submits that the petitioner purchased a Sonography machine and the same is installed in his clinic. He further submits that a register is maintained by the petitioner and record is duly maintained about the patients attended for sonography test. The learned counsel for the petitioner further submits that the petitioner has completed all the required formalities as prescribed under 'F' form. He further submits that the impugned order passed by respondent no.3 - the Civil Surgeon, Buldhana, dated 07.12.2010 thereby sealing the sonography centre and suspending the registration of the clinic of the petitioner is wholly unsustainable. In challenge to the impugned order, the learned counsel for the petitioner raised his first contention that in view of the provisions of Section 20 of The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (57 of 1994) (hereinafter referred to as "the PCPNDT Act"), the petitioner ought to have been granted an opportunity of a personal hearing. The second contention of the learned counsel for the petitioner is that the impugned order do not reflect that the order is passed 'in public interest'. The third contention of the learned counsel for the petitioner is that no reasons are recorded for passing the impugned order. Lastly, the learned counsel for the petitioner contended that the order has been passed by respondent no.3, who is not the Appropriate Authority to pass such order under the Act. In support of these contentions, the learned counsel for the petitioner has placed reliance on the order passed by this Court in Writ Petition No. 2766/2010.

4. Ms. Tajwar Khan, the learned Assistant Government Pleader for the respondents submitted that the PCPNDT Act empowers the Authority to seal the sonography centre without issuing any notice, if the action is in public interest. The learned A.G.P. further submits that in view of the recent Government Circular, the Civil Surgeon is entrusted with the power of sealing.

5. Considering the rival contentions, the clinic run by the petitioner is undoubtedly a 'Genetic Clinic' within the meaning of Section 2(d) of the PCPNDT Act. Insofar as submission of the learned A.G.P. that in the public interest, the Appropriate Authority may suspend the registration of Genetic Councelling Centre, Genetic Laboratory and Genetic Clinic without issuing notice, we are inclined to accept the submission. However, perusal of the impugned order reveals that the order is not passed under sub-section 3 of Section 20 of the PCPNDT Act so as to dispense with the issuance of show cause notice. Though, perusal of the record show that a show-cause notice was issued to the petitioner under Section 3 and 18 of the PCPNDT Act and the same is a format notice, Section 3 of the Act deals with regulation of Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics, whereas Section 18 deals with registration of Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics. There is nothing on record placed by the respondents to show that any notice was issued to the petitioner as required under Section 20(1) of the Act, nor there is anything on record that any opportunity of hearing was granted to the petitioner as required under Section 20(2) of the Act. The record also reveals that no reasons are recorded in writing in the impugned order since the order purports to suspend the registration of Genetic Clinic of the petitioner. Though, it is the required under the law, the order merely recites that the petitioner's sonography centre was inspected by the inspection squad and a panchanama to that effect was drawn. This Court has considered this issue in an identical case i.e. Writ Petition No. 613/2012.

6. It is interesting to note that the impugned order only refers to the deficiency in maintaining 'F' Form register. It is not even the case of the respondent-authorities that the petitioner was found involved in some sex determination. In view of this fact, we are of the opinion that the impugned order suffers from non-compliance of the requirements of Section 20 of the PCPNDT Act. Though, the learned A.G.P. has submitted that the power of sealing and suspension of registration are with Civil Surgeon, nothing is placed on record in support of this submission.

7. In Our considered view, the impugned order is unsustainable in view of non-compliance of the provisions of Section 20 of the PCPNDT Act and the same is required to be quashed and set aside. In the result, the writ petition is allowed. The impugned order dated 07.12.2010 is quashed and set aside. Rule is made absolute accordingly. No costs.

8. We make it clear that this order does not prevent the respondents from taking any further action in the matter as they may consider advisable, in accordance with law.

Ordered accordingly.