Ramesh Mahadu Bole vs The State Of Mahrashtra And Others
2021 Latest Caselaw 2286 Bom

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          IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                     WRIT PETITION NO.12280 OF 2019

 Dr.Ramesh Mahadu Bole,
 age: 38 years, Occ: Medical Practitioner,
 R/o Bole Hospital, Tamsa Road,
 Ardhapur, District Nanded.                                  Petitioner

          Versus

 01 The State of Maharashtra,
    through its Secretary,
    Department of Public Health &
    Family Welfare, Mantralaya,
    Mumbai-32.

 02 District Appropriate Authority/
    Civil Surgeon, Nanded, Main Road,
    Opposite to Collector Ofce,
    Vazirabad, Nanded.                                       Respondents


 Mr.S.G.Chapalgaonkar, advocate for the petitioner.
 Mr.K.B.Jadhavar, AGP for the Respondents.


                                       CORAM : V.K.JADHAV, J.

                                       DATE     : 04th February, 2021.



 JUDGMENT :

1 Heard. Rule. Rule made returnable forthwith and

heard fnally by consent of learned Counsel for respective

parties.

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2 This is regarding renewal of registration of

Sonography Centre run by the petitioner. Respondent No.2-

Appropriate Authority, by an order dated 16 th May, 2019, has

rejected the application of the petitioner seeking renewal of

registration of Sonography Centre of the petitioner on the ground

that criminal case is pending against the petitioner. Being

aggrieved by the same, the petitioner has preferred an appeal

under Rule 19 of the Pre-conception and Pre-natal Diagnostic

Techniques (Prohibition of Sex Selection) Rules, 1996 (hereinafter

called as "Rules of 1996"). The appellate authority has also

confrmed the order passed by the Appropriate Authority by an

order dated 31st July, 2019. Hence, this writ petition.

3 The learned Counsel for the petitioner submits that

the petitioner is a Medical Practitioner possessing MBBS, DGO

qualifcation. He runs his own hospital at Ardhapur. He had

applied for grant of registration for running Sonography Centre in

the year 2009 in terms of provisions of Pre-conception and

Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act,

1994 and Rules made thereunder. Respondent No.2/Appropriate

Authority granted such registration initially for fve years and it

was lastly renewed from 07.04.2014 to 06.04.2019. On

17th March, 2016, the Medical Team of Rural Hospital Barad has

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inspected record of the Sonography Centre of the petitioner and

alleged to have noted certain discrepancies in respect of

maintenance of "F" Form. On 22 nd March, 2016, notice was

issued to the petitioner as to why registration of Sonography

Centre should not be suspended. Though the petitioner has

submitted his explanation with all required details, Respondent

No.2/Appropriate Authority was pleased to suspend registration

of the Sonography Centre. Furthermore, a Complaint, being RCC

No.16 of 2016 also came to be fled before the Judicial

Magistrate, First Class, Ardhapur. The learned Counsel submits

that however, further proceedings in the said criminal case are

stayed under the orders of the Hon'ble Supreme Court in Special

Leave to Appeal (Criminal) No.9574 of 2018. Furthermore, the

petitioner has also challenged suspension of registration of the

Sonography Centre before the Appropriate Authority and

thereafter before this Court by fling Writ Petition No.2349 of

2017. By order dated 13 th February, 2018 in Writ Petition

No.2349 of 2017, the Division Bench of this Court (Coram:

S.V.Gangapurwala & A.M.Dhavale, JJ.) has quashed and set

aside the impugned order directing suspension of registration of

Sonography Centre of the petitioner with the further observation

that the order would not be an impediment for the Appropriate

Authority to take further course of action upon culmination of the

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criminal proceedings.

4 The learned Counsel for the petitioner submits that

the petitioner has fled an application on 01 st March, 2019,

seeking renewal of registration of Sonography Centre in terms of

Rule 8 (1) of the Rules of 1996. On 16 th May, 2019, the

application fled by the petitioner seeking renewal of registration

of Sonography Centre came to be rejected only on the ground

that criminal case is pending against the petitioner. Respondent

No.2/Appropriate Authority has also issued the order sealing the

Sonography Machine. The petitioner has fled Writ Petition

No.4765 of 2019, challenging the order directing sealing of the

Sonography Machine. This Court (Coram: P.R.Bora, J.), by

order dated 16th February, 2019, stayed the order sealing the

Sonography Machine by granting interim relief in terms of prayer

clause "B". Ultimately, by order dated 29 th April, 2019, the said

writ petition came to be disposed of by directing the Appellate

Authority to decide the appeal preferred by the petitioner.

5 The learned Counsel for the petitioner submits that

the Respondent/Appropriate Authority seems to have passed the

order under Rule 18-A (4) (ii) of the Rules of 1996, incorporated

with efect from 28th January, 2015. The learned Counsel submits

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that insertion of the aforesaid sub-rule was subjected to

challenge by fling Writ Petition No.4498 of 2015. In the said writ

petition, the learned Assistant Solicitor General, appearing for

Union of India, on instructions, has made a statement that the

aforesaid sub-rule incorporated with efect from 28 th January,

2015, shall not be construed as total prohibition on the

appropriate authority to receive an application for renewal or

fresh registration. The applications shall have to be received and

processed in accordance with Rule 8 of the Rules of 1996 and the

decision thereon shall be communicated to the concerned doctor.

Thus, by recording the said statement, the Division Bench of this

Court, in the aforesaid writ petition, has not issued any interim

order. However, it was observed that it would be open for the

Appropriate Authorities in the State to receive and process the

applications for renewal of registration or grant of registration

without impeded by the said rule 18-A (4) (ii) of the Rules of

1996.

6 The learned Counsel for the petitioner submits that

even then, by the impugned order dated 16 th May, 2019, the

Respondent-Appropriate Authority has rejected the application

fled by the petitioner seeking renewal of registration only on the

ground that RCC No.16 of 2016 is pending against the petitioner

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before the Judicial Magistrate, First Class, Ardhapur. The

appellate authority has taken the similar view and dismissed the

appeal by order dated 31st July, 2019.

7 The learned Counsel for the petitioner submits that in

most of the districts, considering the directions given by the

Division Bench of this Court, the Appropriate Authority, even

during pendency of criminal case, has granted renewal of the

Registration in terms of provisions of Rule 8 of the Rules of 1996.

8 The learned AGP has vehemently opposed grant of

any relief to the petitioner. It is submitted that the petitioner has

not flled "Form-F" properly and accurately which is mandatory

under Section 4(3) of the PCPNDT Act, 1994 and under Rule 9(4)

of the Rules of 1996. It is submitted that after receipt of

complaint by the Appropriate Authority, inspection of the

Sonography Centre was carried out and during inspection,

certain discrepancies were found in the record maintained by the

petitioner. It is further submitted that the Appropriate Authority

has constituted a Advisory Committee under the Act of 1994.

The Advisory Committee came to the conclusion that the

petitioner has violated the provisions of Act of 1994 and Rules of

1996 made thereunder and, therefore, the Appropriate Authority

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has passed an order of suspension of registration of Sonography

Centre of the petitioner and fled a complaint, being RCC No.16 of

2016 before the Judicial Magistrate, First Class, Ardhapur against

the petitioner. It is submitted that the State Appropriate

Authority, in the appeal, confrmed the order passed by the

District Appropriate Authority, directing sealing of sonography

machine of the petitioner. It is submitted that as per Rule 18-A

(4) (ii) no application for renewal and new registration is

accepted if any case is pending in any Court against the

applicant for violation of any provisions of the Act and the rules

made thereunder. It is submitted that the said criminal case is

still pending before the learned Magistrate.

9 The learned AGP submits that being an owner and

handler/operator of the Sonography machine, it is the prime

responsibility of the petitioner to follow all the regulatory

provisions of the Act of 1994 and Rules of 1996 made

thereunder. The learned AGP submits that in view of the above

facts and circumstances and, action taken by the Appropriate

Authority in respect of cancellation of registration of Sonography

Centre is legal and in accordance with the provisions of the Act of

1994 and Rules made thereunder. The learned AGP submits that

there is no merit and substance in the petition and same

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deserves to be dismissed.

10 In the instant case, allegedly there are certain

discrepancies in maintaining "Form-F" by the petitioner and

certain "Form-F" were found without signature of the doctor or

the concerned patients.

11 The petitioner has assailed the order of suspension of

registration of Sonography Centre and order of sealing the

sonography machine, passed by the District Appropriate

Authority along with the order of the appellate authority

confrming the said order, by fling Writ Petition No.2349 of 2017.

By order dated 13th February, 2018, the Division Bench of this

Court (Coram: S.V.Gangapurwala & A.M.Dhavale, JJ)

quashed and set aside the impugned order making the rule

absolute in terms of prayer clauses "B" and "C" of the said writ

petition. In para 10 of the judgment, the Division Bench has

made following observations:

"10 Considering the aforesaid anomalies and the fact that, the criminal proceedings have been stayed against the petitioner so also the suspension is almost for a period of two years and the allegations were in respect of non- maintenance of "F" form in a particular manner

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and further prima facie fnding that the ladies who were shown to have not signed the "F" form have subsequently delivered male/female child, we are inclined to exercise our jurisdiction."

12 Relevant clause (ii) of Rule 18-A (4) of the Rules of

1996 is reproduced hereunder, which reads as under:

18-A. Code of Conduct to be observed by Appropriate Authorities-

(1) ...... ...... ...... ...... ...... ...... ...... ...... ......

(2) ...... ...... ...... ...... ...... ...... ...... ...... ......

(3) ...... ...... ...... ...... ...... ...... ...... ...... ......

(4) All the Appropriate Authorities including the State, District and Sub-district notifed under the Act, inter alia, shall observe the following conduct for registration and renewal of applications under the Act, namely:-

(i) ...... ...... ...... ...... ...... ...... ...... ...... ......

(ii) ensure that no application for fresh registration or renewal of registration is accepted if any case is pending in any Court against the applicant for violation of any provision of the Act and the rules made thereunder.

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13 It seems that the Respondent No.2-Appropriate

Authority has rejected the application of the petitioner seeking

renewal of registration mainly on the ground of clause (ii) of Rule

18-A (4) of the Rules of 1996. Though said clause (ii) is not

referred in the impugned order passed by the Respondent No.2-

Appropriate Authority, however, the application fled by the

petitioner came to be rejected only for the reason that RCC No.16

of 2016 is pending against the petitioner before the Judicial

Magistrate, First Class, Ardhapur.

14 In Writ Petition No.4478 of 2015, the Division Bench

of this Court (Coram: R.M.Borde and V.K.Jadhav, JJ.) on

05th May, 2015, has recorded statement made on instructions by

the learned Assistant Solicitor General, appearing for the Union

of India. The order dated 05 th May, 2015 in Writ Petition No.4478

of 2015 reads as under:

               1                     The     learned        Assistant      Solicitor
               General         for    the     Union    of    India,      states   on
               instructions           that     Rule     18-A       (4)     (ii)    of
               Pre-conception                and      Pre-natal          Diagnostic

Techniques (Prohibition of Sex Selection) Rules, 1996, incorporated with efect from 28.1.2015 shall not be construed as a total prohibition on the appropriate authority to receive an application for renewal or fresh registration. The application shall

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have to be received and processed in accordance with rule 8 of the said Rules and decision thereon shall be communicated to the concerned doctor.

2 In view of the explanation furnished on behalf of the Union of India by the learned A.S.G., on instructions, no interim orders are necessary.

3 It would be open for the appropriate authorities in the State to receive and decide the applications for renewal of registration or grant of registration without impeded by Rule 18-A (4) (ii) of Rules.

4 The applications already disposed of citing provisions of Rule 18-A (4) (ii) and such of those applications which have not been decided, and pending consideration, shall be decided by respective appropriate authorities considering the merits of the application."

15 In view of the above, I fnd that the approach of

Respondent No.2-Appropriate Authority and the appellate

authority is not proper and correct. Rule 8 of the Rules of 1996

prescribes renewal of registration. In terms of sub-rule (2) of

Rule 8, the Appropriate Authority shall, after holding an enquiry

and after satisfying itself that the applicant has complied with all

requirements of the Act and these Rules and having regard to the

advice of advisory Committee in this behalf, renew the certifcate

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of registration, as specifed in Form B, for a further period of fve

years from the date of expiry of the certifcate of the registration

earlier granted.

16 In the instant case, since the Appropriate Authority

has not applied its mind in terms of provisions of Rule 8 (2) of the

Rules of 1996, this Court is left with no other alternative to

remand the matter to the Respondent No.2-Appropriate Authority

for deciding the application fled by the petitioner seeking

renewal of the registration of Sonography Centre afresh by giving

an opportunity of being heard to the petitioner.

 17               Hence, the following order:



 (i)              Writ Petition is hereby partly allowed.



 (ii)             The impugned order dated 16th May, 2019, passed by

Respondent No.2/Appropriate Authority and confrmed by the

State Appropriate Authority/appellate authority in appeal vide

order dated 31st July, 2019, are quashed and set aside.

(iii) The Respondent No.2/Appropriate Authority shall

decide the application dated 01st March, 2019, fled by the

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petitioner seeking renewal of registration of the Sonography

Centre afresh by giving an opportunity of being heard to the

petitioner, as expeditiously as possible.

(iv) The petitioner shall appear before the Respondent

No.2-Appropriate Authority on 22nd February, 2021.

18 Rule is made absolute partly in above terms. No

order as to costs.

(V.K.JADHAV) JUDGE

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