Delhi High Court
Moolchand Khairati Ram Hospital & ... vs Department Of Health & Family ... on 2 December, 2013
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 02.12.2013
+ WP(C) No.7622 of 2013
MOOLCHAND KHAIRATI RAM HOSPITAL &
AYURVEDIC RESEARCH INSTITUTE ..... Petitioner
Through: Mr. Anil Sapra, Sr. Adv. with
Mr. Gaurav Mitra, Mr. Saurabh Seth &
Ms. Rupali Kapoor, Advs.
versus
DEPARTMENT OF HEALTH &
FAMILY WELFARE, GNCTD AND ANR. ..... Respondents
Through: Ms. Zubeda Begum, Standing Counsel,
GNCTD.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGEMENT
V.K.JAIN, J. (Oral)
CM No.16271/2013 (Exemption)
Allowed subject to just exceptions.
WP (C) No.7622/2013 & CM No.16270/2013 (Stay)
Section 20 (1) of the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 to the extent it is
relevant provides that the Appropriate Authority may either on a complaint
or of its own motion, issue a notice to a Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic, to show cause why its registration
should not be suspended or cancelled for the reasons specified in the said
notice. Sub-section (2) of Section 20 of the Act provides that if, after
giving a hearing the said centre, laboratory or clinic and having regard to
the advice of the Advisory Committee, the Appropriate Authority is
satisfied that there has been a breach of the provisions of the Act or the
Rules made thereunder, it may suspend its registration for such period as it
may think fit or may also cancel such registration. This will be without
prejudice to the criminal action which can be taken against such laboratory,
centre or clinic for contravening the provisions of the Act or the Rules
made thereunder. Sub-section (3) of Section 20 of the Act is in the nature
of an exception to the procedure prescribed in sub-sections (1) & (2) above
and empowers the Appropriate Authority to suspend the registration of the
centre, laboratory or clinic as the case may be without issuing a notice in
case it is satisfied for the reasons to be recorded in writing that it is
necessary or expedient to suspend such registration in the public interest.
2. The Appropriate Authority vide notice dated 26.11.2013, which the
petitioner claims to have received on 30.11.2013, referred to certain
breaches of the provisions of the Act and/or Rules and required the
petitioner to show cause with the direction to stop doing Ultrasoundgraphy
until further orders. The breaches stated in the said notice pertain
primarily to the maintenance of the record of Ultrasound test.
3. As noted earlier, the registration of a centre, laboratory or clinic,
without following the procedure prescribed under sub-sections (1) & (2) of
Section 20 of the Act, could have been suspended only if the Appropriate
Authority was satisfied that it was necessary or expedient to do so in the
public interest. The reasons on which the Appropriate Authority comes to
form such an opinion are required to be disclosed in the order itself.
However, the impugned notice dated 26.11.2013 contains no such reason.
In fact, it does not indicate even formation of an opinion by the
Appropriate Authority that it is in the public interest to suspend the
registration of the licence granted to the petitioner-Institute. Formation of
the requisite opinion, based on express reasons, being a condition preceded
before directing stopping ultrasoundgraphy, the impugned order, to the
said limited extent is ultra vires the powers of the Prescribed Authority.
The impugned notice to the extent it directs the petitioner to stop
Ultrasoundgraphy till further orders, therefore, cannot be sustained.
4. For the reasons stated hereinabove, the writ petition and the
application are disposed of with the following orders:
i. The direction given by the Appropriate Authority to the petitioner to
stop Ultrasoundgraphy till further orders is hereby quashed.
ii. The petitioner shall respond to the show cause notice dated
26.11.2013 within a week from today. While respondent to the show cause
notice, the petitioner shall be entitled to take all such objections as are open
to it in law.
iii. The petitioner shall be given personal hearing by the Appropriate
Authority on 18.12.2013 at 11:00 a.m. in its office. The Appropriate
Authority shall, after considering the reply of the petitioner and the
submissions made during oral hearing pass an appropriate order in
accordance with law within a week thereafter.
iv. If the petitioner is aggrieved from the order passed by the
Appropriate Authority it can avail such remedies as are open to it in law.
DECEMBER 02, 2013 V.K. JAIN, J.
b'nesh
