Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
2024 INSC 173
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
[Arising out of SLP (C) No. 17973 of 2015]
DISTRICT APPROPRIATE AUTHORITY
UNDER THE PNDT ACT AND
CHIEF DISTRICT HEALTH OFFICER
…..APPELLANT
VERSUS
JASHMINA DILIP DEVDA & ANR. …..RESPONDENTS
J U D G M E N T
J.K. Maheshwari J.
1. Leave Granted
2. In the present appeal, the issue concerns the interpretation
of power of Section 20(1) & (2) and Section 20(3) of the Pre
conception and PreNatal Diagnostic Techniques (Regulation &
Prevention of Misuse) Act, 1994 (hereinafter to be referred to as
the “ PC&PNDT Act ”) for cancellation, suspension or suspension in
public interest respectively by the appropriate authority specified
Signature Not Verified
in Section 17 of the PC&PNDT Act.
Digitally signed by
Jayant Kumar Arora
Date: 2024.03.05
14:55:39 IST
Reason:
1
3.
The brief facts are that the respondent no.1 is running a
hospital at Ahmedabad by the name of “ Dev Hospital ” which is a
type of polyclinic having doctors from multiple branches like
gynecology, general physician and general surgeon treating
patients in the said hospital. The hospital was registered under
the PC&PNDT Act and the said registration was valid up to
23.05.2015. On the basis of one complaint made by Shilpa
Punani of Wadhwan District Surendranagar, an inspection of the
hospital was conducted on 21.10.2010. During inspection, the
appropriate authority and its team found some lapses
contravening the provisions of PC&PNDT Act. Consequently, the
sonography machine operated in the hospital was seized. On
25.10.2010, the appropriate authority without giving any notice
passed an order suspending the registration of the hospital in
exercise of the power under Section 20(1) & (2) of the PC&PNDT
Act. On filing appeal by respondent no.1, the appellate authority
vide order dated 21.12.2010 directed the appropriate authority to
pass a suitable order within 15 days and to clarify whether the
order dated 25.10.2020, was passed in exercise of the power
under Section 20(1) & (2) or under Section 20(3) of PC&PNDT Act.
The appropriate authority taking cue from the order of the
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appellate authority, passed a fresh order on 29.12.2010 that there
is a breach of mandatory provisions and accordingly suspended
the registration purportedly under Section 20(3) of PC&PNDT Act
in public interest till finalization of the criminal proceedings.
4. An appeal preferred against the subsequent order dated
29.12.2010 by respondent no.1 was dismissed on 17.03.2011 by
the appellate authority. Being aggrieved, by the order of
suspension dated 29.12.2010 and the order passed in appeal
dated 17.03.2011, writ application being SCA No. 6215/2011 was
filed by respondent no.1 before the High Court of Gujarat
(hereinafter referred to as “ High Court ”) to set aside the said
orders and to revoke the suspension of registration of the hospital.
Prayer was also made to release the sonography machine seized by
the appropriate authority.
5.
Learned Single Judge vide order dated 05.08.2013 was
pleased to allow the writ application inter alia observing that
looking to the condition of foetus in the womb, once the patient
has consented for abortion, she cannot make a complaint for
alleged violation of provisions of PC&PNDT Act. The Court found
that neither any notice was issued nor an opportunity of hearing
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was afforded prior to passing the order suspending the
registration. It was further held that while passing the first order
of suspension on 25.10.2010, powers were exercised by
appropriate authority under Sections 20(1) & (2) of PC&PNDT Act
without affording an opportunity of hearing, which was contrary to
the spirit of the said provisions and wholly unjustified. The
Learned Single Judge was of the view that appellate authority was
not justified to remit the matter in appeal against the order of
suspension to the appropriate authority suggesting clarification
whether such powers were exercised by him under Section 20(1) &
(2) or under Section 20(3) of the PC&PNDT Act and how far the
reasons for exercising such power are justified. The Court further
held that the reason as assigned in the subsequent order, if
accepted as valid, then each and every case of suspension would
fall within the purview of Section 20(3) of PC&PNDT Act and the
provisions of Section 20(1) & (2) will be rendered redundant.
6.
Being aggrieved by the order of Learned Single Judge,
appropriate authority challenged the same by filing the Letters
Patent Appeal which was dismissed by the order impugned by the
Division Bench, putting a stamp of approval to reasonings of the
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Learned Single Judge. The Division Bench was of the opinion that
all the cases of suspension would not automatically fall within the
purview of Section 20(3) of the PC&PNDT Act. It was observed that
the reasons assigned in subsequent order of suspension by the
appropriate authority are not valid to exercise such power in
public interest. Therefore, the Letters Patent Appeal filed by the
appropriate authority was dismissed.
7.
Learned counsel for the appellant authority submits that on
the scope of Sections 20(1), (2) & (3) of PC&PNDT Act, there is no
judgment of this Court, so the question involved in the case is of
general public interest. He has placed reliance on the judgment of
Malpani Infertility Clinic Pvt. Ltd. vs. Appropriate Authority ,
2004 SC Online Bom 834 to urge that if power is exercised by
appropriate authority to suspend the registration due to pendency
of the prosecution, such power may be exercised in public interest
under Section 20(3) of PC&PNDT Act. It is contended that looking
to the object of PC&PNDT Act, if the appropriate authority
considers that the activity of the licensed entity is affecting the
public at large, the power to suspend the registration or license is
permissible. However, it is fairly stated that the High Court of
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Bombay has given a conflicting judgment in the case of J.
Sadanand M. Ingle (Dr) vs. State of Maharashtra , 2013 SCC
online Bom 697 which lays down that subsection (3) starts with
nonobstante clause and empowers the appropriate authority to
suspend the registration temporarily. Dealing with the scope of
Sections 20(3) and 30 of the PC&PNDT Act, it was observed that,
both Sections are independent and action can be taken
independent to each other. It is also urged that issuance of the
order dated 25.10.2010 referring to the wrong provisions, would
not itself render the said order illegal. The power under Section
20(3) is of interim nature which can be exercised in public interest
in a time bound manner. Thus, by the subsequent order dated
29.12.2010, suspension of the registration as directed by the
appellant authority was justified and prayed for to allow this
appeal and to setaside the orders of the High Court.
8.
Per contra , learned counsel for the respondent No. 1
submits that considering the tenor of the order passed by the
appropriate authority and the reasons so stated, it cannot be said
to be an order suspending the registration in public interest.
Relying upon the judgment of High Court of Gujarat passed on
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16.4.2018 in Special Civil Application No. 9424 of 2014 in the
case of Priykant Mokalal Kapadia vs. State of Gujarat , it is
urged that the power of Section 20(3) of the PC&PNDT Act is
exceptional in nature and can be exercised only in public interest
after forming opinion and recording the reasons in this regard,
otherwise, such power ought not to be exercised. In support of the
said contention, reliance has also been placed on a judgment of
the Bombay High Court in the case of Sujit Govind Dange vs.
, 2012(6) Mh.L.J. 289 to urge
State of Maharashtra and others
that the powers under Section 20(3) of PC&PNDT Act are extra
ordinary and the appropriate authority ought to have exercised
such power in larger public interest and in exceptional
circumstances, in particular when the said authority is of the
opinion that it is necessary or expedient to do so in public interest
by recording such reasons, otherwise such power should not be
exercised.
9.
We have heard learned counsel for both the parties at
length and to appreciate the scope of powers as specified under
Section 20(1), (2) & (3) of PC&PNDT Act, it is necessary to refer the
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said provisions. For ready reference, Section 20(1), (2) & (3) of
PC&PNDT Act are being quoted hereinbelow:
| 20 | . Cancellation or suspension of registration.— |
|---|
(1) The Appropriate Authority may suo moto, 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.
(2) If, after giving a reasonable opportunity of being heard
to the Genetic Counselling Centre, Genetic Laboratory or
Genetic 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 this Act
or the rules, it may, without prejudice to any criminal
action that it may take against such Centre, Laboratory or
Clinic, suspend its registration for such period as it may
think fit or cancel its registration, as the case may be.
(3) Notwithstanding anything contained in subsections (1)
and (2), if the Appropriate Authority is of the opinion that
it is necessary or expedient so to do in the public interest,
it may, for reasons to be recorded in writing, suspend the
registration of any Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic without issuing any such
notice referred to in subsection (1).
10.
Bare reading of the aforesaid provisions makes it clear that
Section 20(1) & (2) deals with both suspension or cancellation as
the case may be, while Section 20(3) only deals with suspension in
public interest. The authority, while exercising power under sub
sections (1) & (2) of Section 20 of PC& PNDT Act , may act suo moto
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or on a complaint and after notice to the Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic for the reasons to
show cause why its registration should not be suspended or
cancelled, and affording reasonable opportunity of hearing and
having regard to the advice of the Advisory Committee and on
being satisfied that there was a breach of the provisions of the
PC& PNDT Act or the Rules, without prejudice to any criminal
action, may suspend or cancel its registration as the case maybe.
Meaning thereby that for breach of the provisions of the PC& PNDT
Act and the Rules, power of suspension for such period as may
deem fit or of cancellation may be exercised parallelly by the
appropriate authority.
11. SubSection (3) of Section 20 only deals with suspension
and confers independent power to the appropriate authority
irrespective and notwithstanding the power under subsections (1)
or (2) of Section 20. The said power may only be exercised by the
appropriate authority if the said authority is of the opinion that
exercise of such power is necessary or expedient in public interest.
Meaning thereby that the exercise of such power of suspension by
appropriate authority is in a contingency where it is expedient or
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necessary to take immediate action in public interest. While
exercising such power, it is incumbent on the authority to form an
opinion for reasons to be recorded in writing to indicate the said
public interest. The said power is not akin to the power as
specified in subsection 2 of Section 20 of PC&PNDT Act and the
Rules thereto.
12. In the light of the discussion of the above provisions, it is
required to be seen whether the order of suspension passed on
25.10.2010 is really an order under subsection (2) or under sub
section (3) of Section 20 of the PC& PNDT Act . To understand the
real intent of the order, it would be proper to reproduce the order
dated 25.10.2010 as under :
| “No. DP/H/PNDT/Regn. Susp/Dr. Jasmina Devda/315/10 | |
|---|---|
| O/O Appropriate Authority, PNDT Act, 1994 & CDHO,<br>District Panchayat, Health Branch, Ahmedabad | |
| Date: 25.10.2010 | |
| Read: | |
| 1. The facts of the observations by Appropriate Authority during<br>the visit & the search & Seizure operation at clinic of Dr.<br>Jasmina D. Devda, Dev Hospital, Vasna, Ahmedabad on 21st<br>October, 2010. | |
| 2. Advice of the PNDT Advisory Committee meeting held on<br>22/10/2010. | |
| 3. Powers conferred under Section 20(1) & (2) of PC&PNDT Act,<br>1994 | |
| Office Order: | |
| As per the points read above, a search & seizure operation<br>was conducted at the clinic of Dr. Jasmina D. Devda, Dev |
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| Hospital, Kesariyaji Bus Stop, Dr. Jivraj Mehta Hospital<br>Road, Vasna, Ahmedabad on 21st October, 2010. | ||
|---|---|---|
| Dr. Jasmina D. Devda, Dev Hospital, Vasna, Ahmedabad<br>has convincingly contravened the Sections 4(3),5(2), 5(a) &<br>Rules 9(1), 9(4), 9(8), 10(1A) and 13 of the PC&PNDT Act,<br>1994. As per powers conferred under Section No. 21(1) &<br>20(2) of PC&PNDT Act, 1994, the PNDT registration No. 564<br>allotted to the clinic of the same at the above address is<br>hereby suspended till the next order TV undersigned. | ||
| Appropriate Authority | ||
| PNDT Act, 1994 & CDHO, | ||
| District Panchayat, | ||
| Ahmedabad. | ||
| To | ||
| Dr. Jasmina D. Devda, | ||
| Dev Seva Trust, Kesariyaji Bus Stop | ||
| Dr. Jivraj Mehta Hospital Road, Vasna, | ||
| Ahmedabad.” | ||
13.
Having gone through the order and the provisions of
subsection (2) of Section 20 of the PC& PNDT Act, in our view, the
order dated 25.10.2010 cannot be said to be an order under sub
section (3) of Section 20 of PC& PNDT Act. In fact , it is simplicitor
an order passed under subsection (2) of Section 20 alleging
contraventions of the provisions of PC& PNDT Act and the Rules.
Therefore, we have no hesitation to say that the appellate
authority, while remanding the matter vide order dated
21.12.2010, was not required to ask the appropriate authority to
clarify whether the order of suspension was under subsection (3)
or under subsections (1) & (2) of Section 20 of PC& PNDT Act.
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14. After remand, the subsequent order of suspension dated
29.12.2010 passed in public interest was assailed before the
appellate authority and the writ court. To appreciate the contents
of the said order and the provisions of subSections (1), (2) & (3) of
Section 20 of PC&PNDT Act, it is necessary to reproduce the order
dated 29.12.2010 which is as under:
OW No. DP/H/PNDT/Regn. Susp/Dr. Jasmina
“
Devda/852/100/0 Appropriate Authority, PNDT Act,
1994 & CDHO, District Panchayat, Health Branch,
Ahmedabad
Date: 29.12.2010
Read: (1) The facts of the observation by Appropriate
Authority during the visit 1 the search and seizure
operation at clinic of Dr. Jasmina D. Devda, Dev
st
Hospital, Vasna, Ahmedabad on 21 October, 2010.
(2) Power conferred under Section 20(3) of PC&PNDT
Act, 1994.
(3) Order dated 21/12/2010 passed in Appeal No.
5/2010 by State Appropriate Authority, PC & PNDT Act.
OFFICE ORDER
As per the points read above, a search & seizure
operation was conducted at the clinic of Dr. Jasmina D.
Devda, Dev Hospital, Kesariyaji Bus Stop, Dr. Jivraj
st
Mehta Hospital Road, Vasna, Ahmedabad on 21
October, 2010.
Dr. Jasmina D. Devda, Dev Hospital, Vasna,
Ahmedabad has convincingly contravened the Sections
4(3), 5(2), 6(a) & Rules 9(1), 9(4), 9(5), 10(1A) & 13 of the
PNDT Act, 1994. As per power conferred under Section
No. 20(3) of PC&PNDT Act, 1994, the PNDT Registration
No. 564 allotted to the clinic of the same at the above
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address is hereby suspended, for following reason till
finalization of criminal proceedings.
There is clear breach of mandatory provisions as
mentioned in the order dated 25/10/2010 viz. Section
4(3), 5(2), 6(a) & Rules 9(1), 9(4), 9(8), 10(1A) & 13. This
defeats the basic purpose of the Act & hence contrary
to the public interest. Thus in public interest it is
required to check the activity of yours as you are not
acting as per statutory provisions of Act & hence,
suspension of the PNDT registration is desirable.
Appropriate Authority,
PNDT Act 1994 &
CDHO,
District Panchayat,
Ahmedabad.”
15. Perusal of the above order reveals that the appropriate
authority while passing the order sought to exercise power under
subsection (3) of Section 20 of PC& PNDT Act and directed
suspension of the registration of the clinic till finalization of the
criminal proceedings because of the contraventions of the
provisions of the PC& PNDT Act and the Rules. Therefore, it is said
to be contrary to the public interest and such activity is required
to be curbed.
16. As per the discussion made hereinabove, in our view, the
power of subsection (3) of Section 20 of PC& PNDT Act is
notwithstanding the power of subsections (1) & (2) of Section 20.
The said power can only be exercised when the appropriate
authority forms an opinion that it is necessary or expedient in
public interest to do so. It is incumbent upon the appropriate
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authority to form its opinion based on reasons expedient or
necessary to exercise the power of suspension. The contents of the
suspension order dated 29.12.2010 does not contain reasons as
required to form an opinion that it is necessitated or expedient in
public interest to exercise the power of suspension. Therefore, in
our view, it does not fulfill the requirement of subsection (3) of
Section 20 of PC& PNDT Act. As per the above discussions, neither
the first order of suspension dated 25.10.2010 nor the second
order of suspension dated 29.12.2010 qualifies the requirement of
subSection (3) of Section 20 of the PC& PNDT Act. The said view
is fortified by the reasoning recorded by the learned Single Judge
and Division Bench which we find just and concur by its
reasoning. Therefore, we are not inclined to interfere in this
appeal.
17.
In the above context, it is necessary to refer to the
intendment of Section 20(2) and Section 20(3) of PC& PNDT Act. At
the cost of reiteration, we clarify that if the appropriate authority
finds breach of provisions of PC&PNDT Act or the Rules it may,
after issuing notice and giving a reasonable opportunity of being
heard, without prejudice to any criminal action against the
14
licensed entity, suspend its registration for such period as it may
think fit or cancel the same as the case maybe. The appropriate
authority has also been conferred with a power under subsection
(3) of Section 20 notwithstanding the power under subsection (1)
& (2) of Section 20. In the said situation in case, the authority
forms an opinion that it is necessary or expedient in public
interest, then after recording reasons in writing, it may suspend
the registration of the licensed entity without notice as specified in
subsection (1) of Section 20. Thus, the power of subsection (3) is
intermittent and in addition to the power of subsection (2) but it
may be exercised sparingly, in exceptional circumstances in public
interest. In our view, the power of suspension, if any exercised, by
the appropriate authority deeming it necessary or expedient in
public interest for the reasons so specified, it should be for interim
period and not for an inordinate duration.
18. As per above discussion of the legal position, in the facts of
the present case as is apparent, the inspection was made on
21.10.2010, and the order of suspension was passed on
25.10.2010 without any notice or affording any opportunity of
hearing as per subsection (2) of Section 20. On filing appeal, the
15
appellate authority remitted it to the appropriate authority which
passed the subsequent order of suspension dated 29.12.2010
exercising the power under subsection (3) of Section 20, which in
our view is not justified and has rightly been setaside by Learned
Single Judge and confirmed by the Division Bench. Therefore, the
appeal filed by the appropriate authority is hereby dismissed and
the order passed by Learned Single Judge and the Division Bench
are hereby upheld. Since the order under challenge has been
implemented and the hospital is operational, therefore no further
consequential orders are required to be passed directing to revive
the registration. In the facts and circumstances of the case, there
shall be no order as to costs.
…………….…………J.
(J.K. MAHESHWARI)
.………………………..J.
(K.V. VISWANATHAN)
NEW DELHI;
04.03.2024
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