Madhya Pradesh High Court
Devanta Hospital vs The State Of Madhya Pradesh on 16 December, 2021
Author: Vivek Agarwal
1 WP-25973-2021
The High Court Of Madhya Pradesh
WP No. 25973 of 2021
(DEVANTA HOSPITAL Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated : 16-12-2021
Shri Siddharth Sharma, learned counsel for the petitioner.
Shri Pradeep Singh, learned Government Advocate for respondent
nos. 1 to 4/State.
Learned counsel for the petitioner at the outset submits that he is not
pressing upon relief B i.e. direction to respondent nos. 1 to 4 to initiate
appropriate proceedings against respondent no. 5 and register an F.I.R. under
Section 304B, 498A of I.P.C. against respondent no. 5.
Therefore, he submits that he is only pressing relief A i.e. quashing of
order dated 29/10/2021 Annexure P-6 by which registration of his hospital
has been cancelled.
Learned counsel for the petitioner in his turn submits that firstly no
show-cause notice was issued to him and even if notice dated 15/09/2021 is
taken to be a show-cause notice, then it is not a notice in terms of the
provisions contained in Section 6 of the Madhya Pradesh Upcharyagriha
Tatha Rujopchar Sambandhi Sthapanaye (Registrikaran Tatha Anugyapan)
Adhiniyam, 1973, therefore no action could have been taken to cancel
petitioner's registration, in as much as, notice dated 15/09/2021 is at most a
notice under Section 4 of the Act of 1973.
It is submitted that no opportunity of hearing was given to him on the
subsequent cause of action for which allegedly the Collector, Shahdol had
instituted an enquiry vide order 23/09/2021 as is mentioned in the press note
contained in Annexure P-5. It is submitted that since no show-cause notice
was issued in terms of the second enquiry, therefore, impugned order
cancelling petitioner's registration is illegal and deserves to be set aside.
Learned counsel for the petitioner has placed reliance on the judgment
o f Supreme Court in the case of Radha Krishan Industries Vs. State of
H.P. (2021)6 SCC 771 wherein the Hon'ble Supreme Court has held that
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SAN
Digitally signed by VAIBHAV YEOLEKAR
Date: 2021.12.17 10:50:32 IST
2 WP-25973-2021
there are exceptions to the rule of alternative remedy where the writ petition is
filed for enforcement of a fundamental right protected by part III of the
Constitution; there has been a violation of the principles of natural justice.
Learned counsel for the petitioner emphasizes that as there is violation of the
principles of natural justice and no show-cause notice was issued to him after
institution of enquiry at the instance of Collector-cum-District Magistrate,
therefore, petitioner cannot be forced to avail alternative statutory remedy as
is provided under sub-section 3 of Section 6 of the Act of 1973.
Learned Government Advocate in his turn submits that on 15/09/2021
itself, a copy of show-cause notice dated 15/09/2021 was served on the
petitioner. He has produced a copy of the notice along with
acknowledgement in terms of the proceedings of a co-ordinate Bench dated
14/12/2021. They are taken on record. He further submits that thereafter
enquiry which was conducted at the instance of Collector, Shahdol, a report
was prepared by the enquiry team and a report was forwarded by the Chief
Medical and Health Officer, District Shahdol to the petitioner on his E-mail
address on 27/09/2021 but again no reply was given by the Director/Manager
of the petitioner institute, though he was granted three days time to furnish
reply and there is a note that same be sent by whatsapp, mail and home
address. It is submitted that when no reply was filed, then final report was
obtained on 27/10/2021 and impugned action has been taken on 29/10/2021.
Thus, placing reliance on these documents, it is submitted that there is
no violation of principles of natural justice and, therefore, petitioner is bound
to avail alternative statutory remedy as is provided under sub-section 3 of
Section 6 of the Act of 1973.
After hearing learned counsel for the parties and on going through the
record, learned counsel for the petitioner fairly admits that as far as show-
cause notice dated 15/09/2021 under whatever section it may be was served
on the petitioner on 15/09/2021 itself. He fairly admits that no reply to said
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show-cause notice was given. However, his whole emphasis is on the aspect
SAN
Digitally signed by VAIBHAV YEOLEKAR
Date: 2021.12.17 10:50:32 IST
3 WP-25973-2021
that this show-cause notice dated 15/09/2021 was on a different aspect and
that could not have been used to issue order of cancellation of registration as
has been done by the authorities vide order dated 29/10/2021 contained in
Annexure P-6.
However, a perusal of report dated 27/09/2021 which Shri Pradeep
Singh, learned Government Advocate submits was furnished on the Mail I.D.
of the petitioner, and which learned counsel for the petitioner is not in a
position to dispute in present, thereafter, final report was furnished by a team
of four Doctors recommending cancellation of registration was made and
then impugned order was passed, then it is evident that sufficient opportunity
was afforded to the petitioner to explain his conduct and the deficiencies
which were pointed out by the authorities but petitioner did not avail of the
said remedy twice, firstly when the notice was served on him on 15/09/2021
and secondly when notice was served on 27/09/2021 or immediately
thereafter.
In view of such facts, ratio of law laid down in the case of Radha
Krishan Industries (supra) will not be applicable and, therefore, this writ
petition filed directly before this Court without availing the statutory remedy is
not maintainable.
However, liberty is granted to the petitioner to avail the said remedy as
provided under sub-section 3 of Section 6 of the Act of 1973 if so advised
and it is made clear that any discussion in this order will not prejudice the
appellate authority to decide the appeal on its own merits.
In above terms, the petition is dismissed.
(VIVEK AGARWAL)
JUDGE
vy
Signature Not Verified
SAN
Digitally signed by VAIBHAV YEOLEKAR
Date: 2021.12.17 10:50:32 IST
