"In that view of the matter, this Court has no hesitation to
quash the order dated 02.07.2014 passed by the State
Appropriate Authority under the PC&PNDT Act in Appeal
Case No.4 of 2013 and remand the matter back to the
State Appropriate Authority under the PC&PNDT Act for
fresh adjudication. The petitioner is directed to file the
certified copy of this order before the State Appropriate
4 The Orissa Clinical Establishments (Control and Regulation) Act, 1991, is an
Act to provide for the control and the regulation of registration and proper
functioning of private nursing homes and other clinical establishments in the
State and for matters connected therewith or incidental thereto.
2.8. Accordingly, on furnishing such certified copy of the
order of this Court, the State Appropriate Authority
comprising Dr. Binod Kumar Mishra, Director, Family
Welfare, Odisha-cum-Chairperson, State Appropriate
Authority under the PCPNDT Act and Sri K.L. Barik,
Additional Secretary to Government, Law Department,
Member, State Appropriate Authority under the PCPNDT
Act took up Appeal (assigning number, i.e., Appeal Case
No.1 of 2017) proceeded to hear the appellant being
represented by Advocate and also the Assistant
Collector, Angul appearing on behalf of the District
Appropriate Authority, Angul, and dismissed the appeal
on 02.05.2017 with the following observation:
2.9. On such dismissal of appeal by the State Appropriate
Authority, the appellant praying fervently sought for
release of goods as per seizure list dated 14.08.2013 in
W.P.(C) No.11461 of 2024, which stood dismissed vide
Order dated 19.02.2025 with the following observation:
2.10. Aggrieved thereby, the appellant/petitioner preferred
this writ appeal.
3. Petition for condonation of delay of ten days caused in
filing the writ appeal came up for consideration on
14.10.2025. Having condoned the delay, the writ appeal
was directed to be listed on 11.11.2025 under the
heading "Fresh Admission".
3.1. The counsel for respective parties advanced arguments
on the said date of listing. Having heard Sri Umakanta
Mishra, Advocate for the Appellant and Sri Saswat Das,
learned Additional Government Advocate for the
Respondents, this matter stood reserved for delivery of
judgment/order at a later date.
4. Sri Umakanta Mishra, learned counsel for the appellant
with the above factual backdrop submitted that the
learned Single Bench has not considered the grievance of
the appellant in proper perspective and has dismissed
the petition on the ground that the Appellant has not
approached the Appropriate Authority under Section 21
of the PCPNDT Act within the prescribed period therein.
4.1. It is submitted that though the petitioner specifically
prayed for release of seized machines, articles and
documents as per seizure list dated 14.08.2023, the
learned Single Judge should have appreciated the plight
of the Appellant in not being able to utilise the
ultrasound machine which has been kept under seal
since the date of inspection, i.e., 14.08.2013. More than
12 years by now has been elapsed, yet no criminal
proceeding pursuant to FIR stated to have been lodged
on 14.08.2013 has been instituted. Such glaring
omission on the part of the learned Single Judge
deserves intervention in the instant writ appeal.
4.2. Pursuant to direction of this Court contained in W.P.(C)
No.23322 of 2016 vide Order dated 27.03.2017, the
Appellant approached the Appropriate Authority
challenging the Order dated 24.08.2013 of the Collector
and District Magistrate-cum-Appropriate Authority,
PCPNDT Act, Angul suspending the licence basing on
the inspection report and the appeal before it was
treated as appeal and numbered as Appeal Case No.1 of
2017, which depicts obviously that such appeal is under
Section 21 of the PCPNDT Act 5 . Under such
21. Appeal.--
The Genetic Counselling Centre, Genetic Iaboratory or Genetic Clinic may,
within thirty days from the date of receipt of the order of suspension or
cancellation of registration passed by the Appropriate Authority under
Section 20 prefer an appeal against such order to--
circumstances, the observation of the learned Single
Judge is inappropriate to hold that the writ petition is
not "maintainable".
4.3. Valiant submission is made that copy of Registration
Certificate granted on 13.05.2012 by Collector-cum-
Appropriate Authority under the PCPNDT Act, 1994,
Angul (Annexure-1 to the writ petition) reveals that the
same is valid for five years, i.e., till 23.04.2016, as earlier
certificate of registration remained valid from 24.04.2006
to 23.04.2011. Non-renewal of such licence is tainted
with arbitrariness inasmuch as the suspension cannot
be for indefinite period and the authority concerned
having not specified period of suspension as required
under Section 20, the Order dated 24.08.2013 is liable
to be set aside. No action even for cancellation has ever
been undertaken. In such view of the matter, it is
contended that as no criminal proceeding has been
instituted as yet, since lodging of FIR in the year 2013,
the learned Single Judge could have considered release
of the items enumerated in the seizure list dated
14.08.2013.
4.4. It is argued that inspection of the premise would not ipso
facto empower the Appropriate Authority to seize
(i) the Central Government, where the appeal is against the order of
the Central Appropriate Authority; and
(ii) the State Government, where the appeal is against the order of the
State Appropriate Authority, in the prescribed manner."
documents/registers and seal the equipments. Section
20 of the PCPNDT Act in unequivocal terms mandates
show cause notice before suspending licence and it is
apparent from the Order dated 24.08.2013 that the
District Appropriate Authority seems to have abdicated
his discretion to the State Appropriate Authority who
has transmitted the inspection report suggesting
suspension of licence. Sub-section (2) of Section 20 of
PCPNDT Act clearly spells out that after giving a
reasonable opportunity of being heard to the Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic
and subject to satisfaction of the Appropriate Authority
that there has been a breach of the provisions of the said
Act or the Rules, having regard to the advice of the
Advisory Committee, action can be taken. Sub-section
(3) of Section 20 lays down the modality which
prescribes mandatory compliance on the part of the
Appropriate Authority. The counter affidavit being silent
about recording of "opinion" of the Appropriate Authority
that such action was necessary or expedient in the
public interest. No reason appears to have been recorded
in writing before suspending the registration of Clinic.
Since the date of seizure on 14.08.2013 no further
action has been taken by the Appropriate Authority.
Therefore, he submitted that the learned Single Judge
should have shown indulgence in the order of
suspension and directed for release of the machine and
other documents/registers seized as reflected in the
seizure list on the ground of excess of exercise of power
and authority vested in the statutory authority.
4.5. It is contested that had the appeal bearing No.1 of 2017
pursuant to order of this Court in earlier writ petition
been not maintainable before the State Appropriate
Authority, appropriate steps could have been taken by
the respondents at the relevant point of time. Therefore,
it is urged that, on the flimsy ground of availability of
alternative remedy under Section 21, the learned Single
Judge could not have stated that the writ petition is not
"maintainable", particularly when the Appropriate
Authority without raising any objection decided the
appeal being No.1 of 2017 of the Appellant on merit.
5. Sri Saswat Das, learned Additional Government
Advocate, sought to justify the averments made in the
counter affidavit filed in the writ petition and submitted
that the decision of the learned Single Judge cannot be
found fault with for the Appellant should have
approached the State Appellate Authority declared under
Rule 19A of the PCPNDT Act 6 . Since the Order dated
Additional Secretary to Government."
6. It is evident from the records that the items as
enumerated in the seizure list dated 14.08.2013 are
under seal on account of search operation conducted by
authorities under the PCPNDT Act. It does reveal from
Order dated 27.03.2017 of this Court passed in W.P.(C)
No.23322 of 2016 that the appellant approached the
State Appropriate Authority in appeal, which was
registered as Appeal No.1 of 2017. Paragraph 2 of said
order of this Court that,
"The petitioner was inspected by a Committee headed by
the Appropriate Authority. They found certain illegalities
in the maintenance of register and violation of other Rules
and, therefore, they submitted report to the Collector-cum-
District Appropriate Authority under the PCPNDT Act,
Angul. Accordingly, licence was suspended as per
Annexure-3. The petitioner preferred appeal before
the State Appropriate Authority under the PCPNDT
Act and order passed by the State Appropriate
Authority under the PCPNDT Act and the order
passed by the State Appropriate Authority under
the PCPNDT Act, Annexure-4, is impugned in this
writ petition."
6.1. From the Order dated 02.07.2017 passed in Appeal No.1
of 2017, it is manifest that the State Appropriate
Authority, having raised no objection to the observation
and direction of this Court in Order dated 27.03.2017 in
W.P.(C) No.23322 of 2016, took up the appeal and
afforded opportunity to the appellant and also the
District Authority and came to record reasons.
6.2. The contentions of the respondents with respect to
appointment of the State Appellate Authority under the
PCPNDT Act and the Rules framed thereunder, is
required to be examined as it is evident that the meat of
appreciation by the learned Single Judge in the
impugned order was existence of alternative remedy
under Section 21 of the said Act dithers the Court to
exercise power under Article 226/227 of the
Constitution of India.
6.3. Section 21 of the PCPNDT Act deals with provisions for
appeal to challenge the order of suspension or
cancellation of registration passed by the Appropriate
Authority under Section 20 and provides for preferring
an appeal against such order to the State Government,
where the appeal is against the Order of the State
Appropriate Authority, in the prescribed manner. It
appears objection has been raised by the respondents as
to maintainability of writ petition on the ground that the
State Appellate Authority is appointed in exercise of
powers under 19A of the PCPNDT Rules by virtue of the
Health and Family Welfare Department Notification
dated 28.07.2017.
6.4. Such plea of the respondents is apparently
misconceived. The appeal has been preferred before the
State Appropriate Authority being directed by this Court
in the writ petition on earlier round of litigation. Order in
said writ petition was passed on 27.03.2017. As it
transpires from Section 21 that the appeal is to be
preferred in the "prescribed manner". Rule 19A of the
PCPNDT Rules came to statute book by virtue of
insertion vide the Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection)
Amendment Rules, 2017 [G.S.R. 492(E), dated
22.05.2017], with effect from 23.05.2017. Bare perusal
of Annexure-C/2 of the counter affidavit filed by the
respondents in the writ petition depicts that the
Notification appointing State Appellate Authority came to
be issued on 28.07.2017.
6.5. However, the respondents, being State functionaries,
should have brought on record copy of such notification
as published in the Odisha Gazette. It is not made
known whether such notification is in force, in absence
of any material on record to suggest that said
notification has been published in the Odisha Gazette as
required under Rule 19A. It could not, thus, be possible
to ascertain its legal sanctity of such notification. This
observation is felt expedient to be made in view of
language of Rule 19A of said Rules. In view of the
decision of the Supreme Court of India in Union of India
Vrs. Ganesh Das Bhojraj, (2000) 9 SCC 461, the position
is clear that a Notification comes into force on the date it
is printed in the Official Gazette and not on the date on
which it is made available to the public. Publication of
Notification in the Odisha Gazette can be made effective
from the date of its printing. 7 In Harla Vrs. State of
Rajasthan, (1952) SCR 110 it has been observed as
follows:
"We do not know what laws were operative in Jaipur
regarding the coming into force of an enactment in that
State. We were not shown any, nor was our attention
drawn to any custom which could be said to govern the
matter. In the absence of any special law or custom, we
are of opinion that it would be against the principles of
natural justice to permit the subjects of a State to be
punished or penalised by laws of which they had no
knowledge and of which they could not even with the
exercise of reasonable diligence have acquired any
knowledge. Natural justice requires that before a law
can become operative it must be promulgated or
published. It must be broadcast in some
recognisable way so that all men may know what it
is; or, at the very least, there must be some special
rule or regulation or customary channel by or
through which such knowledge can be acquired
with the exercise of due and reasonable diligence.
The thought that a decision reached in the secret recesses
of a chamber to which the public have no access and to
which even their accredited representatives have no
access and of which they can normally know nothing, can
nevertheless affect their lives, liberty and property by the
mere passing of a Resolution without anything more is
abhorrent to civilised man. It shocks his conscience. In
the absence therefore of any law, rule, regulation or
7 Vide observation of this Court in Order dated 18.05.2022 passed in the matter
of United Spirits Ltd. Vrs. State of Odisha, STREV No.499 of 2008.
custom, we hold that a law cannot come into being
in this way. Promulgation or publication of some
reasonable sort is essential."
6.6. It does reveal from record that Notification dated
28.07.2017 did not see the light of the day on the date of
disposal of W.P.(C) No.23322 of 2016 on 27.03.2017.
The State Appropriate Authority on the date of disposal
of Appeal bearing No.1 of 2017, i.e., 02.05.2017, could
not have invoked provisions of Rule 19A as well. Had
that been so, it could have transmitted the record of
appeal to the State Appellate Authority, if at all it was
constituted.
6.7. In Mohinder Singh Gill Vrs. Chief Election Commission,
(1978) 2 SCR 272 = (1978) 1 SCC 405 it has been stated
as follows:
"We may here draw attention to the observations of Bose
J. in Commissioner of Police Vrs. Gordhandas Bhanji, AIR
1952 SC 16 = 1952 SCR 135:
„Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of
what he meant, or of what was in his mind, or what he
intended to do.
Public orders made by public authorities are meant to
have public effect and are intended to effect the actings
and conduct of those to whom they are addressed and
must be construed objectively with reference to the
language used in the order itself.‟-- Orders are not like
old wine becoming better as they grow older."
6.8. The order is to be tested on the basis of reasons ascribed
thereto. Nonetheless, the appellant in the writ petition
sought for release of seized articles, machine and
documents, inasmuch as no case has been filed by the
District Appropriate Authority. It is also prayed for
issuance of mandamus to renew licence or issue fresh
licence. The learned Single Judge has proceeded to
dispose of the writ petition vide Order dated 19.02.2025
with the observation that "the petitioner has not
approached the Appropriate Authority under Section 21 of
the PCPNDT Act within the prescribed time, instead, the
petitioner has approached this Court by way of the
present writ petition, which is not maintainable". Reading
of Paragraphs 4 and 5 of said Order, it transpired that
such observation has been based on the submission of
the respondents that the appellant ought to have
approached the State Appellate Authority under Section
21 of the PCPNDT Act, but filed the writ petition
circumventing the provisions relating the remedial
measure provided in the statute. It is, thus,
demonstrably eminent that the respondents were not fair
enough to bring it to the notice of the learned Single
Judge to examine the applicability of the Health and
Family Welfare Department Notification dated
28.07.2017 (vide Annexure-C/2 of the counter affidavit;
though copy of such notification as published in the
Odisha Gazette has not been furnished) issued in
exercise of powers conferred on the State Government
under Rule 19A of the PCPNDT Rules, which came to
exist after disposal of the Appeal bearing No.1 of 2017.
6.9. What was essentially before the writ Court was Order
dated 02.07.2017 passed by the State Appropriate
Authority in appeal bearing No.1 of 2017 under Section
21 of the PCPNDT Act, which was filed pursuant to
direction of this Court vide Order dated 27.03.2017 in
W.P.(C) No.23322 of 2016. The learned Single Judge
could not have swayed away by the contention of the
respondents that the appellant was required to exhaust
the remedy of appeal provided under Section 21. The
contention of the respondents in this regard before the
learned Single Judge is misconceived and is an attempt
to misguide the Court.
6.10. The marginal heading indicates that Rule 19A lays down
"the manner for filing and disposal of the appeal under
clauses (i) and (ii) of Section 21 of the Act". Sub-rule (2)
of said Rule 19A reads as follows:
"(2) (a) The State Government may, by notification
in the Official Gazette, appoint a State
Appellate Authority for the whole State,
for the purpose of appeal against the
order of State Appropriate Authority.
(b) The State Appellate Authority shall consist of
the Principal Secretary, Health and Family
Welfare or an officer not below the rank of the
State Appropriate Authority as notified by the
State Government."
6.11. Be that be, for the appellant having filed the appeal
challenging the order of suspension passed by the
District Appropriate Authority (i.e., Collector and District
Magistrate-cum-Appropriate Authority, PCPNDT Act,
Angul) on 24.08.2013 pursuant to direction of this Court
vide Order dated 27.03.2017 (prior to introduction of
Rule 19A), Rule 19 of the PCPNDT Rules would be the
applicable provisions for the present purpose.
6.12. Rule 19 of the PCPNDT Rules stands as follows:
"19. Appeals.--
(1) Anybody aggrieved by the decision of the
Appropriate Authority at sub-district level may
appeal to the Appropriate Authority at district level
within 30 days of the order of the sub-district level
Appropriate Authority.
(2) Anybody aggrieved by the decision of the
Appropriate Authority at district level may appeal to
the Appropriate Authority at State/UT level within
30 days of the order of the district-level Appropriate
Authority.
(3) Each appeal shall be disposed of by the District
Appropriate Authority or by the State/Union
Territory Appropriate Authority, as the case may be,
within 60 days of its receipt.
If an appeal is not made within the time as
prescribed under sub-rule (1), (2) or (3), the
Appropriate Authority under that sub-rule may
condone the delay in case he/she is satisfied that
appellant was prevented for sufficient cause from
making such appeal."
6.13. Thus, on the aforesaid analysis of available material on
record, the Order dated 19.02.2025 deserves to be
interfered with. The observation of the learned Single
Judge that alternative remedy of appeal under Section
21 would deprive the appellant from ventilating its
grievance before this Court by way of the writ petition
cannot be found to be justified.
7. This matter can be looked at on different angle.
7.1. This Court takes note of the following ruling of the
Hon'ble Supreme Court of India in the case of Rikhab
Chand Jain Vrs. Union of India, 2025 SCC OnLine SC
2510 laying down that without exhausting alternative
remedy available in the statute, the writ petition should
not be entertained:
"9. While deciding whether to entertain a petition under
Article 226 bearing in mind the precedents in the
field, a writ court ought to additionally notice the
forum designated by the statute for the litigant to
approach. This is necessary because the
alternative forum that is provided by the
statute has to be one which can dispense
speedy and efficacious relief. However, as in the
present case, if the statutorily designated alternative
forum happens to be the high court itself whose
jurisdiction under Article 226 is invoked and not any
ordinary statutory functionary/tribunal, refusal to
entertain the petition should be the rule and
entertaining it an exception.
10. We may profitably refer, in this context, to the
Constitution Bench decision in Thansingh Nathmal
Vrs. A. Mazid, Superintendent of Taxes, AIR 1964
SC 1419. In Thansingh Nathmal (supra), this Court
had the occasion to lay down a principle of law
which is salutary and not to be found in any other
previous decision rendered by it. The principle,
plainly, is that, if a remedy is available to a
party before the high court in another
jurisdiction, the writ jurisdiction should not
normally be exercised on a petition under
Article 226, for, that would allow the
machinery set up by the concerned statute to
be bye-passed. The relevant passage from the
decision reads as follows:
„The jurisdiction of the High Court under Article 226
of the Constitution is couched in wide terms and the
exercise thereof is not subject to any restrictions
except the territorial restrictions which are expressly
provided in the article. But the exercise of the
jurisdiction is discretionary; it is not exercised
merely because it is lawful to do so. The very
amplitude of the jurisdiction demands that it will
ordinarily be exercised subject to certain self-
imposed limitations. Resort to that jurisdiction is not
intended as an alternative remedy for relief which
may be obtained in a suit or other mode prescribed
by statute. Ordinarily the court will not entertain a
petition for a writ under Article 226, where the
petitioner has an alternative remedy, which, without
being unduly onerous, provides an equally
efficacious remedy. Again the High Court does not
generally enter upon a determination of questions
which demand an elaborate examination of evidence
to establish the right to enforce which the writ is
claimed. The High Court does not therefore act
as a court of appeal against the decision of a
court or tribunal, to correct errors of fact, and
does not by assuming jurisdiction under Article
226 trench upon an alternative remedy
provided by statute for obtaining relief. Where it
is open to the aggrieved petitioner to move another
tribunal, or even itself in another jurisdiction for
obtaining redress in the manner provided by a
statute, the High Court normally will not permit, by
entertaining a petition under article 226 of the
Constitution, the machinery created under the
statute to be by-passed, and will leave the party
applying to it to seek resort to the machinery so set
up.‟
11. Since the appellant had a remedy by way of a
reference before the High Court against the Order
dated 23rd June, 2000 of the CEGAT, we do not
consider refusal to exercise discretion in favour of
the appellant to be so fundamentally incorrect that
interference is warranted.
12. That apart, the majority view in a previous
Constitution Bench in A.V Venkateswaran, Collector
of Customs, Bombay Vrs. Ramchand Sobhraj
Wadhwani, AIR 1961 SC 1506 reads thus:
„14. ***, we must express our dissent from the
reasoning by which the learned Judges of the
High Court held that the writ petitioner was
absolved from the normal obligation to exhaust
his statutory remedies before invoking the
jurisdiction of the High Court under Article 226
of the Constitution. If a petitioner has
disabled himself from availing himself of
the statutory remedy by his own fault in
not doing so within the prescribed time, he
cannot certainly be permitted to urge that
as a ground for the Court dealing with his
petition under Article 226 to exercise its
discretion in his favour. Indeed, the second
passage extracted from the judgment of the
learned C.J. in Mohammed Nooh case8 with its
reference to the right to appeal being lost
„through no fault of his own‟ emphasizes this
aspect of the Rule.‟
In essence, this Court was of the opinion that
once a petitioner has due to his own fault
disabled himself from availing a statutory
remedy, the discretionary remedy under Article
226 may not be available.
13. Although there is no period of limitation for invoking
the writ jurisdiction of a High Court under Article
226, all that the Courts insist is invocation of its
8 See, State of Uttar Pradesh Vrs. Mohammad Nooh, 1958 SCR 595.
jurisdiction with utmost expedition and, at any rate,
within a "reasonable period". What would constitute
"reasonable period" cannot be put in a straight-
jacket, and it must invariably depend on the facts
and circumstances of each particular case.
Nonetheless, the period of limitation prescribed by
an enactment for availing the alternative remedy
provided thereunder in certain cases does provide
indication as to what should be the "reasonable
period" within which the writ jurisdiction has to be
invoked."
7.2. The fact on record evidently demonstrates that the
appellant has approached in appeal bearing No.1 of
2017 before the State Appropriate Authority challenging
the order of suspension of licence and legality of seizure
of articles prior to insertion of Rule 19A and issue of
Notification dated 28.07.2017 appointing the State
Appellate Authority in exercise of power under said Rule
in pursuance of direction of this Court in earlier round
of litigation. After disposal of said appeal on 02.05.2017
by the State Appropriate Authority even prior to said
notification, as it seems the appellant had no other
efficacious alternative remedy than to approach this
Court invoking writ jurisdiction. Of course, in the writ
petition the appellant has sought for release of goods
seized as per the seizure list dated 14.08.2013.
7.3. Prior to the date of passing the impugned Order dated
19.02.2025 in the writ petition, the matter was on board
before the learned Single Bench on 11.07.2024,
16.08.2024, 13.09.2024, 20.11.2024, 09.12.2024 and
14.02.2025. A counter affidavit on behalf of the
respondents came to be filed on 08.08.2024 and the
learned Single Judge on 14.02.2025 passed the following
Order:
"1. This matter is taken up through hybrid arrangement.
2. Having heard the learned counsels for the
Parties, the Chief District Medical Officer,
District Head Quarter Hospital, Angul/Opposite
Party No.2 is directed to take fresh steps to
conduct inspection of the Petitioner's clinic
and if any deficiency is pointed out by him/her,
the said deficiency shall be removed by the
Petitioner. After removal of the deficiency, a
fresh license be issued in favour of the
Petitioner.
3. In the meantime, this Court seeks presence of the
Chief District Medical Officer, District Head Quarter
Hospital, Angul/Opposite Party No.2 before this
Court on 19th February, 2025 at 2 P.M through
Virtual Mode.
4. List this matter on 19th February, 2025 at 2 P.M.
5. A free copy of this order be issued to the learned
counsel for the State for compliance."
7.4. After thus proceeded with the merit of the writ petition
as contended by the petitioner, and upon filing of
counter affidavit by the respondents responding to the
averments of the petitioner in the writ petition, the
learned Single Judge vide Order dated 19.02.2025
should not have dismissed the petition on the specious
plea of alternative remedy stemming on Section 21 read
with Rule 19A as sought to be agitated by the
respondents.
7.5. The learned Single Judge took note of following
submissions advanced by the learned advocate for the
appellant/petitioner:
"3. *** They seized the machine and other equipments of
the clinic as the clinic was running illegally and not
complying with the PC and PNDT Act. He further
submits that the said equipments, i.e., ultrasound
machine and other records of the clinic were seized
by the said authority and an FIR was lodged on
14.08.2013. He further submits that the petitioner‟s
seized equipments have not yet been released to the
petitioner despite passing of 10 years in the
meantime. Moreover, the State Appropriate Authority
has not initiated any criminal action as per Section
17(4)(e) of the Act. Therefore, the authority has
violated Article 19(1)(g) of the Constitution of India.
***"
7.6. From perusal of impugned order of the learned Single
Judge it is not forthcoming that there was any disputed
fact for the writ Court not to advert to decide the case on
merit. In the instant case, it does not emanate that the
appellant/petitioner has due to his own fault disabled
himself from availing statutory remedy. Therefore, the
discretionary remedy under Article 226 of the
Constitution of India in the opinion of this Court is
available for the appellant to seek remedy against
seizure of goods since 2013 particularly when no case
has been instituted against it at no point of time even if
information is supplied to the Police Station on
14.08.2013 by the Chief District Medical Officer, Angul.
7.7. Reference to Union Territory of Ladakh Vrs. Jammu and
Kashmir National Conference, (2023) 12 SCR 68 may be
relevant to consider that existence of alternative remedy
is not an interdiction to maintain writ petition. It has
been laid down in the said reported case as follows:
"16. It requires no reiteration that the powers of
this Court and the High Courts vested under
the Constitution cannot be abridged, excluded
or taken away, being part of the Basic
Structure of our Constitution. Reference need
only be made to decisions in His Holiness
Kesavananda Bharati Sripadagalvaru Vrs. State of
Kerala, (1973) 4 SCC 225; Indira Nehru Gandhi Vrs.
Raj Narain, 1975 Supp SCC 1; Minerva Mills Ltd.
Vrs. Union of India, (1980) 3 SCC 625; L. Chandra
Kumar Vrs. Union of India, (1997) 3 SCC 261 and
more recently, to Kalpana Mehta Vrs. Union of India,
(2018) 7 SCC 1 and Rojer Mathew Vrs. South Indian
Bank Limited, (2020) 6 SCC 1, all of which were
rendered by a Bench of 5 or more learned Judges.
Section 12 of the 1997 Act need not detain us.
Insofar as Section 13 of the 1997 Act is concerned, it
is by now too well-settled that the availability of
alternative efficacious remedy is no bar to the
exercise of high prerogative writ jurisdiction, in the
light of various decisions, including but not limited
to, State of Uttar Pradesh Vrs. Mohammad Nooh,
1958 SCR 595; Madhya Pradesh State Agro
Industries Development Corporation Ltd. Vrs. Jahan
Khan, (2007) 10 SCC 88; Maharashtra Chess
Association Vrs. Union of India, (2020) 13 SCC 285.
Even on the anvil of Radha Krishan Industries
Vrs. State of Himachal Pradesh, (2021) 6 SCC
771, Section 13 of the 1997 Act does not, and
cannot, impede a Constitutional Court from
proceeding further. We do not wish to multiply
established authorities on the point but would add
the very recent Godrej Sara Lee Ltd. Vrs Excise and
Taxation Officer-cum-Assessing Authority, 2023 SCC
OnLine SC 95 to the list enumerated above."
7.8. In A.L. Kalra Vrs. Project & Equipment Corpn., (1984) 3
SCC 316 it has been observed as follows:
"13. The appellant approached the High Court of Delhi
under Article 226 of the Constitution questioning the
correctness and validity of the findings of the inquiry
officer and the decision of the Disciplinary Authority
as well as the Appellate Authority inter alia on the
ground that the inquiry was held in violation of the
principles of natural justice and the quasi-judicial
authority failed to give reasons in support of its
order and the action taken against the appellant
was per se arbitrary and in violation of Article 14
and Article 16 of the Constitution inasmuch as the
allegations contained in the heads of charges, even
if unrebutted, do not constitute a misconduct within
the meaning of the expression in 1975 Rules. In
order to sustain the maintainability of the writ
petition, the appellant also contended that the
respondent is an instrumentality of the State and is
comprehended in the expression "other authority" in
Article 12 of the Constitution.
***
16. Once when in this Court it was conceded that the
respondent was amenable to the writ jurisdiction of
the High Court, the question arose whether the
matter should be remitted to the High Court as the
High Court has rejected the writ petition in limine on
the ground that the respondent was not amenable to
the writ jurisdiction of the High Court. Ultimately,
in order not to protract the litigation involving
livelihood of the appellant, the appeal was set
down for final hearing on merits. The
respondent Corporation was accordingly
directed to file its affidavit as also the
documents on which it seeks to rely. The
appeal was thereafter heard on merits."
7.9. In A.P. Electrical Equipment Corporation Vrs. Tahsildar,
2025 SCC OnLine SC 447 it has been held that,
"48. Normally, the disputed questions of fact are not
investigated or adjudicated by a writ court while
exercising powers under Article 226 of the
Constitution of India. But the mere existence of
the disputed question of fact, by itself, does not
take away the jurisdiction of this writ court in
granting appropriate relief to the petitioner. In
a case where the Court is satisfied, like the one on
hand, that the facts are disputed by the State
merely to create a ground for the rejection of the writ
petition on the ground of disputed questions of fact,
it is the duty of the writ court to reject such
contention and to investigate the disputed facts and
record its finding if the particular facts of the case,
like the one at hand, was required in the interest of
justice.
49. There is nothing in Article 226 of the
Constitution to indicate that the High Court in
the proceedings, like the one on hand, is
debarred from holding such an inquiry. The
proposition that a petition under Article 226
must be rejected simply on the ground that it
cannot be decided without determining the
disputed question of fact is not warranted by
any provisions of law nor by any decision of
this Court. A rigid application of such proposition or
to treat such proposition as an inflexible rule of law
or of discretion will necessarily make the provisions
of Article 226 wholly illusory and ineffective more
particularly Section 10(5) and 10(6) of the Act, 1976
respectively. Obviously, the High Court must avoid
such consequences."
7.10. In the case of Genpact India Private Limited Vrs. Deputy
Commissioner of Income Tax, (2019) 17 SCR 139
observed as follows:
"Even otherwise, the learned Judge was not right in law.
True it is that issuance of rule nisi or passing of interim
orders is a relevant consideration for not dismissing a
petition if it appears to the High Court that the matter
could be decided by a writ court. It has been so held even
by this Court in several cases that even if alternative
remedy is available, it cannot be held that a writ
petition is not maintainable. In our judgment,
however, it cannot be laid down as a proposition of
law that once a petition is admitted, it could never
be dismissed on the ground of alternative remedy. If
such bald contention is upheld, even this Court cannot
order dismissal of a writ petition which ought not to have
been entertained by the High Court under Article 226 of
the Constitution in view of availability of alternative and
equally efficacious remedy to the aggrieved party, once
the High Court has entertained a writ petition albeit
wrongly and granted the relief to the petitioner."
7.11. Nevertheless, this Court appreciating that the machine
and documents/registers have been seized and licence
under the PCPNDT Act has been suspended since 2013;
yet no criminal action has been taken nor is any case
filed against the appellant, and that the learned Single
Judge has not referred to any disputed question of fact
which prevented him from adjudicating the grievance of
the appellant for release of seized material, the Order
dated 19.02.2025 cannot be upheld. It is also observed
in the preceding paragraphs under discussion that the
State Appellate Authority has been appointed after
disposal of Appeal bearing No.1 of 2017, which was filed
in pursuance of the Order dated 27.03.2017 passed in
W.P.(C) No.23322 of 2016. The forum which is directed
to decide the appeal of the appellant-petitioner being not
objected to by the respondents in the earlier round of
litigation and said forum having adjudicated the appeal,
at this belated stage, without seeking for any variation of
the said order of this Court, the respondents are
estopped from raking up the issue to keep the seized
material in sealed condition, even as in the meantime 12
years have been elapsed.
7.12. To fortify such a stance, reference to Kedar Shashikant
Deshpande Vrs. Bhor Municipal Council, (2011) 2 SCC
654 is apposite. In the said case, it has been observed as
follows:
"28. The question whether the Additional Collector had
jurisdiction to entertain and decide the
disqualification petition filed by the respondents is
essentially a question of fact. It is pertinent to note
that Section 13(3) of the Maharashtra Land Revenue
Code, 1966 contemplates statutory delegation in
favour of the Additional Collector. Whether there was
statutory delegation in favour of the Additional
Collector in terms of Section 13(3) of the
Maharashtra Land Revenue Code, is a question of
fact. Therefore, the appellants cannot be permitted to
argue for the first time before this Court the point
that the Additional Collector had no jurisdiction to
entertain the disqualification petition filed by the
respondents. Even otherwise, the record clinchingly
shows that the appellants had submitted to the
jurisdiction of the Additional Collector and
participated in the proceedings before the Additional
Collector without any reservation. Therefore, having
lost before the Additional Collector, they cannot turn
round and challenge the jurisdiction of the
Additional Collector for the first time in the appeals
filed under Article 136 of the Constitution."
7.13. It is prominent from the Order dated 02.05.2017 of the
State Appropriate Authority in Appeal No.1 of 2017 that
not only the Appellant was heard being represented by
Advocate, but also the District Appropriate Authority,
Angul participated in the proceeding being represented
by the Assistant Collector. Therefore, in view of Kedar
Shashikant Deshpande (supra) the respondents cannot
turn round to contend otherwise before the learned
Single Judge. As it has already been seen that after the
counter affidavit is filed by the respondents enclosing
documents clearly admitted that no further proceeding
has been undertaken by the Appropriate Authority, and
the learned Single Judge vide Order dated 14.02.2025
upon hearing directed for fresh step to be undertaken by
the Authority concerned to conduct inspection of the
Clinic, this Court, therefore, deems it seemly to request
the learned Single Judge to consider the matter on merit
on the basis of material available on record.
7.14. Judicial review is subject to the principles of judicial
restraint and must not become unmanageable. If any
action is taken by any person which is arbitrary,
unreasonable or otherwise in contravention of any
statutory provisions or penal law, the Court can grant
relief keeping in view the evidence before it and
considering the statutory provisions involved. However,
the Court should not pass any judicially unmanageable
order which is incapable of enforcement. [See, Pravasi
Bhalai Sangathan Vrs. Union of India, (2014) 4 SCR 446].
7.15. In Utkal Highways Engineers and Contractors Vrs. Chief
General Manager, MANU/SCOR/04014/2025, the
Hon'ble Supreme Court in Special Leave Petition (C)
No.14350 of 2022 vide Order dated 08.01.2025 having
considered "The short submission of the learned counsel
for the appellant in both the appeals is that the writ
petitions were filed in the year 2010, parties had
exchanged their affidavits, and the matters were ripe for
final disposal. In these circumstances, without even
adverting to the facts borne out from the affidavits
exchanged by the parties, there was no justification for
the High Court to relegate the appellant to avail other
remedies" observed that,
"8. Be that as it may, the High Court has not dealt with
the merits of the writ petition. Moreover, it is not an
inviolable rule that no money claim can be
adjudicated upon in exercise of writ jurisdiction.
Non-payment of admitted dues, inter alia, may be
considered an arbitrary action on the part of
respondents and for claiming the same, a writ
petition may lie. 9 Further, throwing a writ
9 Surya Constructions Vrs. State of Uttar Pradesh and others, (2019) 16 SCC 794;
See also: Unitech Ltd. and others Vrs. Telangana State Industrial Infrastructure
petition on ground of availability of alternative
remedy after 10 years, particularly, when
parties have exchanged their affidavits, is not
the correct course unless there are disputed
questions of fact which by their very nature
cannot be adjudicated upon without recording
formal evidence.10
9. The High Court, in the impugned orders, has not set
out any factual foundation of the kind which may
suggest that there were disputed questions of fact
that necessitated recording of evidence."
7.16. Keeping abreast of dicta of the Hon'ble Supreme Court of
India, when the instant context is examined this Court
finds that in the counter affidavit the respondents
clarified that after the inspection report is submitted to
the District Appropriate Authority (Annexure-A/2), an
FIR was lodged by the Chief District Medical Officer,
Angul on 14.08.2013, pursuant to which no criminal
action has been taken against the appellant as yet.
7.17. Ergo, having found no disputed question of fact
requiring adjudication by the fact-finding authority in
the matter and the learned Single Judge having not
recorded such disputed question of fact that detained
the Court from exercising jurisdiction under Article 226
Corporation (TSIIC) and Others, (2021) 16 SCC 35; Joshi Technologies
International Inc Vrs. Union of India and Others, (2015) 7 SCC 728.
10 Dr. Bal Krishna Agarwal Vrs. State of UP and others, (1995) 1 SCC 614 (para 10);
Durga Enterprises (P) Ltd. and another Vrs. Principal Secretary, Govt. of U.P. &
others, (2004) 13 SCC 665.
of the Constitution of India, the writ appeal deserves to
be allowed.
Conclusion:
8. On the aforesaid discussed factual matrix and legal
position as set forth herein above, it demonstrably clears
that the appellant/petitioner has exhausted remedy
available in the statute on the facts and in the
circumstances of the case. Upon reviewing the
challenged decision (impugned order) made by the
learned Single Judge, it is not evident that there were
any factual disagreements that would have prevented
the Court from taking a decision based on the material
available on record and substantive legal arguments of
the case on merit. Having found no clear indication from
the impugned order that there were factual disputes
significant enough to justify the Single Judge not to
address the issue raised in the writ petition on merit,
this Court believes the learned Single Judge could have,
or should have, decided the case on its merits. The writ
petition is maintainable in view of decisions of the
Hon'ble Supreme Court of India referred to supra.
9. On a perspicuous analysis of the materials on records
and diligent consideration of the arguments advanced
vis-a-vis grounds of appeal, coupled with the fact that
the appellant has exhausted remedy as directed by this
Court in W.P.(C) No.23322 of 2016 prior to insertion of
Rule 19A of the PCPNDT Rules, this Court cannot
hesitate but to hold that the writ petition is maintainable
and, hence, the writ appeal succeeds. Consequently, the
Order dated 19.02.2025 passed in W.P.(C) No.11461 of
2024 is set aside.
9.1. Considering the fact that no case has been instituted
against the appellant despite around 12 years have been
elapsed since information is furnished to the Police and
the seized goods including the ultrasound machine as
per seizure list dated 14.08.2013 (Annexure-3 to the writ
petition) and zimanama (Annexure-F/2 to the counter
affidavit) have been kept under seal since 14.08.2013,
the learned Single Judge is requested to hear and
dispose of the writ petition on merit as expeditiously as
possible.
10. In the result the writ appeal stands disposed of with no
order as to costs. Pending interlocutory application(s), if
any, shall stand disposed of accordingly.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN)
Signed by: ASWINI KUMAR SETHY High Court of Orissa, Cuttack
Designation: Personal Assistant
(Secretary in-charge) The 27th November, 2025//Aswini/Bichi/Laxmikant
Reason: PASSWORD
Location: ORISSA HIGH COURT,
CUTTACK
Date: 27-Nov-2025 14:27:12
