RAJESH H.SHUKLA,J. - (1.) THE present petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India as well as under the provisions of the PreNatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 and Rules made thereunder challenging the order passed by the State Appropriate Authority in Appeal No.2 of 2011 dated 17.03.2011 on the grounds stated in the memo of petition.
(2.) THE facts of the case briefly summarized are that the petitioner is having hospital at Ahmedabad known as Dev Hospital, which is one type of Polyclinic having other doctors from other branches like Gynecology, Physician and General Surgeon, who are also treating patient in the said hospital. The hospital of the petitioner has been granted registration under the PreNatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (hereinafter referred to as the PNDT Act) for carrying out such genetic Counseling, prenatal diagnostic procedure and prenatal diagnostic test, which is valid upto 23.05.2015. One Dr.Ruchita Sharda, Gynecology is also attending the hospital and the husband of the petitioner is also a doctor. It is the case of the petitioner that one Smt. Shilpa Punani of Wadhwan, District : Surendranagar had been admitted in the hospital of the petitioner on 10.09.2010 and she was advised to undergo ultra sonography test, which was carried out and Form No.F was filled in by Dr.Ruchita Sharda. Sonography test revealed that foetus, which is developing, was likely to be a mentally retarded child if it is allowed to grow. Therefore as per the medical science and jurisprudence, advice has been given to the patient that foetus is not properly developed and there are chances of complication if it is allowed to give a birth to a child. Therefore, husband and family members of the patient agreed for termination of pregnancy and the operation was performed on 11.09.2010 after obtaining necessary consent and other formalities were completed. However, one relative of Smt.Shilpaben serving in the office of the Honble Chief Minister has misused the office and pressurized the office of the Health and Family Welfare Department to initiate action against the petitioner, which led to complaint by the official and they have visited the hospital and in violation of Rule 12, prepared the panchnama and seized the sonography machine and certain files of the hospital of the petitioner. Thereafter, same has been confiscated and seal has been applied and custody has been given to the petitioner. Therefore, the petitioner approached the Authority, who after following procedure, passed impugned order. It is also contended that the Appropriate Authority without following procedure as prescribed under Section 20(1) and 20(2) of the Act passed an order of suspension of the registration of the petitioner dated 25.10.2010 produced at Annexure D.
(3.) HEARD learned Counsel, Shri B.T. Rao for the petitioner, learned AGP Shri Bharat Vyas for the respondent No. 1 and learned Counsel, Shri N.J. Shah for the respondent No. 2. Learned Counsel, Shri Rao referred to the provisions of Section 20 of the PNDT Act and submitted that provision of Sections 20(1) and 20(2) of the PNDT Act clearly provide for the issuance of the notice and reasonable opportunity of being heard before passing order regarding suspension of the registration. Learned Counsel, Shri Rao submitted that as it has a consequence both civil as well as economic consequence and also it may affect the very profession of the petitioner, such an order could not have been passed in violation of principles of natural justice. Learned Counsel, Shri Rao submitted that though Section 20(3) of the PNDT Act provides in public interest to take action for the reasons to be recorded in writing, the present case would not be covered by such provision. He therefore submitted that having regard to the background of the facts that it was in the interest of the patient as well as foetus, which has not properly developed and if it was allowed to continue, it would have led to birth of retarded child. Learned Counsel, Shri Rao therefore submitted that as a member of medical profession, the petitioner and others are expected to guide the patient and, therefore, with the consent of patient and her family members and that too, after completing the formalities and the procedure, the operation was performed for termination of the pregnancy on 11.09.2010. Learned Counsel, Shri Rao referred to Annexure B and also referring to patient history recordsheet and submitted that it is dated 10.09.2010 and it refers to Hydrocephalus. He has also referred to Annexure C as well as Annexure D dated 25.10.2010 and submitted that the registration has been suspended in purported exercise of power under Sections 20(1) and 20(2) of the PNDT Act. Learned Counsel, Shri Rao submitted that no notice has been given as required under law, which is mandatory requirement for compliance of the rules of natural justice. He submitted that admittedly no such notice or opportunity of hearing has been given and, therefore, such action is bad and illegal. He also referred to the order passed by the Appellate Authority dated 21.12.2010 produced at Annexure F. He submitted that though the Appellate Authority has in terms accepted that no notice was issued as required under law, which was legally required to record the reasons before passing order and also the fact that licence has been suspended, the operative portion of the Appellate Authority does not satisfy the order and has merely directed to pass suitable order suggesting to fill in lacuna including the provisions of the law. He therefore submitted that the Appellate Authority has also adopted and has to perform its statutory duty as an Authority and it has led to the present petition when the Authority on the basis of such order of remand passed fresh order dated 29.12.2010 produced at Annexure G, against which, Appeal was preferred, wherein the order came to be passed by the Appellate Authority rejecting Appeal, which has led to filing of the present petition. Learned Counsel, Shri Rao pointedly referred to the memo of Appeal as well as the order where the submissions are recorded. Again he emphasized that there is breach of the mandatory provision of law, which has not been followed. However to fill in lacuna and justify the action, the order is passed in purported exercise of power under Section 20(3) of the PNDT Act. Further the deficiency are mentioned, however, it may be a procedural lapse but it would not amount to violation of law, by which, harsh action of suspension of the registration and seal of the machine could be taken by the respondents. Learned Counsel, Shri Rao therefore submitted that it was incumbent upon the Authority as well as appellate Authority to first consider as to whether there is any violation of provisions of the Act, which would justify such action. Learned Counsel, Rao referred to the papers including the communication produced at Annexure R1 with affidavit in reply on behalf of the respondent No. 1 addressed by the patient. He also referred to the affidavit of the patient and also statement dated 27.10.2010 and submitted that affidavit is required to be considered closely as stamp paper is of Wadhwan and the name of the purchaser is of the patient herself, who is said to have purchased on 20th October, 2010. He submitted that though it has been denied, she has not consented for the operation nor does the paper bear signature, fact remains that it was on the basis of the medical exigency, she has been advised with full understanding and, therefore, the provisions of law would not be attracted. Learned Counsel, Shri Rao also referred to the provisions of Section 30 of the Act, which provides for power of search and seizure the record r/w Rule 12 of the Rules. He submitted that Rule 12 provides for procedure for search and seizure. Learned Counsel, Shri Rao has referred to Rule 12 in detail and submitted that the procedure has to be followed and two independent witnesses are required to be kept present. Therefore, learned Counsel, Shri Rao submitted that how search is made unilaterally is not mentioned.;