Full Text
HIGH COURT OF DELHI
Date of Decision: 13th December, 2022
DR. TARUN KOTHARI .... Petitioner
Through: Mr. Prasoon Kumar Mishra, Advocate.
Through: Mr. Avishkar Singhvi, Mr. Naved Ahmed & Mr. Vivek Kumar, Advocates. (M-9654847982)
Dr. Sauharda Nath, District Nodal Officer, PCPNDT (West) for R-2.
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present writ petition has been filed on behalf of the Petitioner - Dr. Tarun Kothari seeking directions to the Respondent No.1 - Government of NCT of Delhi to hear his appeal under section 21 of The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 and stay the judgement dated 6th September, 2022 passed by the State Appropriate Authority, PCPNDT Act, GNCT of Delhi (hereinafter, “State Appropriate Authority”). The present writ petition also seeks stay of the sealing memo dated 19th September 2022 passed by the Respondent No. 2 - District Magistrate/ District Appropriate Authority (West), PCPNDT Act, GNCT of Delhi and de-seal the USG machine and clinic/room of the Petitioner.
3. The Petitioner runs a diagnostic centre/clinic called Indo-American Health Care at RR13, Miyavali Nagar, Paschim Vihar, New Delhi-110087. The said clinic was registered in 2010 and was allotted registration number being DL/W/2015/0171. Initial registration of the same was from 19th May, 2010 to 18th May, 2015. The Petitioner was granted renewal till 17th May,
2020. Sometime in March, 2020, the Petitioner sought further renewal but no renewal was granted by the Respondent No. 2.
4. A show cause notice was issued by the Respondent No. 2 dated 20th October, 2020 stating three discrepancies in the Petitioner’s clinic due to which the renewal was not granted. The said discrepancies are as under: “(a). Notice board depicting ban on Prenatal Sex Determination {Rule 17(1)} was not displayed at conspicuous place. (b) The centre is in basement and there are 16 stairs which are very steep and there is no ramp or lift. Steepness of the stairs is unsafe and dangerous to the ANC patients.
(c) Board displaying name of the centre was in very bad condition and unreadable.”
5. The Petitioner accordingly replied to the said show cause notice. However, the application of the Petitioner for renewal of registration was rejected vide order dated 22nd January, 2021 passed by the Respondent No.2. The Petitioner filed a writ petition bearing W.P.(C) 1808/2021 titled Tarun Kothari v. District Magistrate/ District Appropriate Authority (West) PCPNDT Act, GNCT of Delhi before this Court seeking setting aside of the said order. In the meantime, the Respondent No.2 sealed the medical equipment of the Petitioner. The said writ was disposed of by this Court vide order dated 23rd February, 2021 in the following terms:
7. A perusal of the said discrepancies shows that the insofar as (a) and (c) are concerned, the same can be rectified easily by the Petitioner. Further insofar as the centre being run from a basement is concerned, since the Petitioner has always been running the centre from the basement, the same cannot be a grievance which is raised afresh by the Petitioner. However, adequate safeguards and safety measures such as installation of proper rails to enable patients to take support while climbing the stairs etc., can be taken by the Petitioner to ensure the safety of the patients who visit the clinic. Accordingly, the Petitioner’s writ petition is transferred to the Appellate Authority and may be considered as an appeal against the order of rejection dated 22nd January, 2021. The appeal shall be taken up next week itself.
8. In the meantime, the Petitioner’s clinic shall be desealed and any orders which may be passed by the Appellate Authority even in the interim for the purpose of removal of discrepancies and to ensure security and safety of the patients, shall be carried out by the Petitioner. Accordingly, the following directions are issued: i) The Petitioner’s clinic be immediately desealed within a period of five days; ii) The present petition be transferred to the Appellate Authority by the ld. Counsel appearing for the Respondent. The Appellate Authority would afford a hearing to the Petitioner on 1st March, 2021 at 11:30 a.m. The Appellate Authority would consider the interim directions which are to be passed for removal of discrepancies of the Petitioner; iii) The appeal shall thereafter be heard on merits after affording a proper hearing to the Petitioner and the prayer for renewal shall be adjudicated in accordance with law. iv) If the prayer for renewal is rejected, the same shall not take effect for a period of two weeks, to enable the Petitioner to avail its legal remedies.
9. The Petition is disposed of in the above terms. All pending applications are also disposed of. ”
6. Pursuant to the aforementioned order of this Court, the State Appropriate Authority vide order dated 6th September, 2022, upheld the rejection of the Petitioner’s renewal application and directed the Petitioner to stop work in violation of the PCPNDT Act, 1994 within seven working days. Thereafter, the Respondent No.2 vide sealing order dated 19th September 2022 once again sealed the medical equipment and room/clinic of petitioner. The Petitioner filed an appeal before the State Programme Officer (SPO) challenging the order of the State Appropriate Authority. The same was, however, rejected on 28th November, 2022. Hence, the present writ petition.
7. On the last date i.e. 5th December, 2022, this Court had directed the Petitioner to place on record the photographs of the premises in order to peruse the board affixed therein. Ld. Counsel appearing for the Respondent No.1 was also directed to take instructions as to whether the appropriate Appellate Authority under Section 21 of the PCPNDT Act, is constituted. The relevant part of the order dated 5th December, 2022, is as under: “5. Even otherwise on merits, when this Court had remanded the matter for decision by the Appellate Authority on 23rd February, 2021, it was directed that the order of the Appellate Authority would not take effect for a period of two weeks. However, considering the fact that the order dated 6th September, 2022 came to be passed, the ultrasound machinery of the Petitioner in his clinic has now been sealed, he is unable to provide ultrasound services in his clinic.
6. It has been submitted that the Petitioner’s clinic is one being run for the last 12 years without any complaint or untoward incident. The three reasons for the non-renewal of his registration under the Act are as follows: ● Notice board depicting ban on Prenatal Sex determination [Rule 14(1)] was not displayed at conspicuous place ● The centre is in a basement and there are 16 stairs which are very steep and·there is no ramp or lift. Steepness of the stairs is unsafe and dangerous to the ANC patients ● Board displaying the name of the centre was in a very bad condition and unreadable Thus the grounds of cancellation primarily are that the notice board was defective and that there is no ramp or lift in the premises and there are 16 stairs, in a steep staircase.
7. A perusal of the order passed by the Appellate Authority also shows that there is a Public Works Department (PWD) report stating that there is no possibility of installing a ramp in the clinic as per the Central Public Works Department (CPWD) guidelines. Under this situation, the Petitioner submits it would be fait accompli to deprive patients of the Peera Garhi area from accessing the ultrasound services of the clinic. Further the Petitioner is also unable to earn his livelihood from the functioning of clinic.
8. Let instructions be taken by ld. Counsel for the Respondent in the above background.
9. At this stage, ld. Counsel for the Petitioner prays for the de-sealing of the machinery. Let the photographs of the premises with the conspicuous notice board/s, which are stated to have now been installed by the Petitioner, be placed on record before the next date of hearing”
8. Today, Mr. Avishkar Singhvi, ld. Counsel for Respondent No. 2 submits that the Appellate Authority which consists of three members is duly constituted and functional and can take up the grievances of the Petitioner. Ld. Counsel points out that the order passed by the State Appropriate Authority on 6th September, 2022 is challengeable before the Central Appellate Authority being the Secretary, (Health and Family Welfare). A notification dated 7th May, 2018 notifying the Secretary as the Central Appellate Authority has also been placed on record by the ld. Counsel for Respondent No. 2.
9. It is further submitted on behalf of the Respondents that the Petitioner is not willing to consider reducing the risk to his patients by either providing a lift or a movable chair attached to the steep staircase leading to his clinic, for the patients unable to walk down the stairs.
10. It is submitted on behalf of the Petitioner that in the entire locality, several patients are being deprived of diagnostic services of the Petitioner and there is an urgent need for de-sealing of the USG machine and room/clinic of the Petitioner. It is further submitted that ever since the Petitioner’s clinic opened, there has been no accident or untoward incident with respect to the stairs leading to the clinic.
11. The Petitioner has placed on record the photographs of his clinic showing that the board has been changed. The current board clearly informs the patients that pre-natal sex determination is illegal and is not done at the Petitioner’s clinic. The new board of the Petitioner’s clinic which has been placed on record is extracted below:
12. This only leaves the issue of the staircase, which according to the Respondents could be dangerous for the patients who may be visit the Petitioner’s clinic. The Petitioner’s submission that there has been no untoward incident in his clinic in the last 11 to 12 years, is also to be borne in mind by this Court. In view of the circumstances of this case as also the fact that the Central Appellate Authority has been notified by the Respondents, the following directions are issued:
(i) The Petitioner is permitted to approach the Central Appellate
Authority by way of an appeal, within a period of 15 days. If the appeal is filed within 15 days, the same shall not be dismissed by the Central Appellate Authority as being barred by limitation as the Petitioner has been before this Court during this period;
(ii) The Petitioner is willing to cooperate with the Central Appellate
(iii) Recording the Petitioner’s undertaking to this effect, the
Petitioner’s premises as also his medical equipment is permitted to be de-sealed so that the Petitioner can resume his clinic. This shall however be subject to the orders that may be passed by the Central Appellate Authority. If the order finally passed is against the Petitioner, the Petitioner’s remedies are left open. The said order shall not take effect for two weeks.
13. The present petition is disposed of with the above directions. All the pending applications are also disposed of. No further orders are called for.
PRATHIBA M. SINGH JUDGE DECEMBER 13, 2022 Rahul/KT