Rahul Yadav vs The Govt Of Nct & Ors
2013 Latest Caselaw 5567 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%
                                            Date of Decision: 02.12.2013

+      W.P.(C) 4482/2013
       RAHUL YADAV                                    ..... Petitioner
                          Through: Mr Rajesh Tyagi, Adv.
                          versus
       THE GOVT OF NCT & ORS                            ..... Respondents
                          Through: Mr Rajiv Nanda, Additional
                          Standing Counsel along with Dr. Shalley
                          Kamra, State Prog. Officer
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                              JUDGMENT

V.K.JAIN, J. (Oral)

An inspection of the Ultrasound Clinic being run by the petitioner

at 64, D/1, First Floor, Om Shanti Complex, Laxmi Market, Munirka,

Delhi, was carried by the officials of the District Authority under the

Pre-Conception and Pre-Natal Diagnostic Technique (Prohibition of Sex

Selection) Act, 1994 (hereinafter referred to as "PC & PNDT Act") and

a show-cause notice was issued to the petitioner on the spot in respect of

Item No. 6 and 7 of the said notice. Items No. 6 and 7 of the notice read

as under:-

"6. Register containing the information, as specified in Rule 9(1) of the Act, was not being maintained.

7. Record in Form F, as prescribed under Rule 9(4), was not being properly maintained."

2. The petitioner submitted a reply to the said notice on 27.01.2012,

stating therein that necessary corrections and implementation had been

done by him pertaining to some cases with „self-referrals‟ and indication

of foetal well being in cases. He also undertook that all the guidelines of

PC & PNDT Act would be implemented by him in future. Vide order

dated 23.03.2012, the appropriate authority suspended the licence of the

petitioner and issued a further show cause notice to him to show cause

why PNDT Registration of his diagnostic centre be not cancelled and

why prosecution should not be launched against him for violation of the

provisions of the said Act and Rules. The petitioner responded to the

said notice on 02.03.2012. Vide order dated 12.03.2012, the

Appropriate Authority directed cancellation of PNDT registration

certificate issued to M/s Urolife Stone & Diagnostic Centre and also

ordered sealing of the ultrasound machine (Doppler Machine) of the

said Centre. CDMO (SW)/Nodal Officer was simultaneously advised to

take action for launching prosecution against M/s Urolife Stone &

Diagnostic Centre. The aforesaid order dated 12.03.2012 was

challenged by the petitioner before the Appellate Authority under PC &

PNDT Act. The appeal was disposed of vide order dated 14.05.2012,

whereby the case was remanded back to the District Appropriate

Authority for further view and decision. Vide order dated 12.12.2012,

the Appropriate Authority, in exercise of the powers conferred by

Section 20(2) of the PC & PNDT Act, ordered for cancellation of PNDT

Registration of the petitioner and continuing the sealing of his

ultrasound machine. The petitioner again filed an appeal before the

prescribed Appellate Authority. The appeal came to be disposed of vide

order dated 13.02.2013, whereby the appeal was rejected. Vide order

dated 08.04.2013, the Appellate Authority also permitted shifting of the

ultrasound machine to 62-A, Urolife Stone & Diagnostic Centre, Laxmi

Market, Munirka, Delhi, though shifting to the aforesaid place was

never sought by the petitioner. Being aggrieved from the aforesaid

orders, the petitioner is before this Court seeking the following relief:-

i. "Quash the order dated 13.2.2013 and 12.12.2012, passed by the Respondent No. 2&3 respectively.

ii. Pass any other or further order or direction which the Hon‟ble Court may deem fit and proper in the facts and circumstances of the case."

3. As regards the ultrasound machine, this Court, accepting the

undertaking furnished by the petitioner, directed its de-sealing and its

being kept in the same clinic, where it was earlier kept. The petitioner

was also permitted to keep the said machine at an appropriate place in

the safe custody, subject to his complying with an undertaking given to

the Court.

Vide order dated 11.10.2013, the petitioner was permitted to sell

off/lease out the aforesaid machine subject to the conditions, stipulated

in the said order. However, the machine has not been sold by the

petitioner and the same continues to be in his possession.

4. Section 20 of the Act, to the extent it is relevant, provides that an

Appropriate Authority may suo motu, or on complaint, issue a notice to

the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to

show-cause why its registration should not be suspended or cancelled

for the reasons mentioned in the notice.

It would thus be notice that the show-cause notice in terms of sub-

section (1) of Section 20 is required to be issued by the Appellate

Authority alone. However, in the case before this Court, the show-cause

notice dated 24.01.2012, though purporting to be issued by the

Appropriate Authority was in fact not signed by the said Authority and

was signed only by the SDM, who carried out inspection of the premises

of the petitioner. There is no material before the Court to show that and

in fact this is not even the case of the respondents that the Appellate

Authority had delegated its power to issue show-cause notice under

Section 20(1) of the Act to the concerned SDM. Therefore, the issue of

notice by the SDM was clearly without jurisdiction.

5. The learned counsel for the petitioner has also contended that

even the notice issued by the SDM did not indicate what precisely was

the deficiency in the record in Form „F‟ which was alleged to be

improperly maintained. The learned counsel for the respondents,

however, submits that the deficiency was clearly understood by the

petitioner, as would be evident from the plea taken by him before the

Appellate Authority. However, since the notice has not been issued by

the competent person, I need not go into this aspect of the matter. As

the show-cause notice was issued by a person, who was not competent

to do so, the consequent proceedings become null and void.

6. The orders impugned in the writ petition as well as the show-

cause notice dated 24.01.201 are hereby quashed. It is, however, made

clear that it would be open to the Appropriate Authority to issue a fresh

show-cause notice in terms of Section 20(1) of the Act to the petitioner,

within a period of two weeks from today. On such a notice being issued,

the petitioner shall respond within two weeks thereafter and an

appropriate decision by the Appellate Authority would be taken within

eight weeks thereafter after giving opportunity of personal hearing to the

petitioner.

The writ petition stands disposed of.

Dasti

V.K. JAIN, J

DECEMBER 02, 2013 BG