The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 30466 OF 2023 (An application under Article 226 of the Constitution of India) * * * * Hemanta Kumar Parida …. Petitioner -versus- Secretary, Department of Health and Family Welfare, Bhubaneswar and others Advocates appeared: …. Opp. Parties
Legal Reasoning
For Petitioner : Mr. D.P. Nanda, Senior Advocate being assisted by Ms. Shreya Pattnaik, Advocate For Opp. Parties : Mr. Debendra Kumar Mohanty, Additional Standing Counsel CORAM: JUSTICE K.R. MOHAPATRA
Decision
---------------------------------------- Heard and disposed of on 06.02.2024 --------------------------------------- JUDGMENT 2. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition seeks to assail the e- mail dated 5th August, 2023 (Annexure-7) attaching the reasoned order in Form-C passed by the Appropriate Authority under Rule 8(3) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection), Rules, 1996 (as amended in 2017) (for short ‘the Rules’), whereby an application submitted by him for renewal of certificate of Page 1 of 5 // 2 // registration in respect of Shree Krishna Ultrasound Clinic at Karigara Sahi, Dhenkanal, has been rejected. 3. Mr. Nanda, learned Senior Advocate submits that the Petitioner-Proprietor runs the aforesaid Ultrasound Clinic and he was issued with a registration certificate on 20th July, 2017 (Annexure-1). In due course, he made an application on 20th February, 2023 (Annexure-3) in Form-A for renewal of certificate of registration. On receipt of the said application, a show cause notice was issued on 18th April, 2023 (Annexure-4). On receipt of the show cause reply, his application was rejected on the ground that the name of the Doctor was not stated in the application in Form-A. The reasoned order was communicated to the Petitioner through e-mail dated 25th April, 2023 (Annexure-5). Accordingly, the Petitioner made a fresh application on 24th May, 2023 in Form-A complete in all respect. Upon receipt of the said application, the Petitioner alleged to have been issued with a notice to show cause on 25th July, 2023. However, the renewal application was again rejected by the District Magistrate & Collector, Dhenkanal- Opposite Party No.2 vide order dated 5th August, 2023 under Annexure-7. Hence, this writ petition has been filed. 3.1 Mr. Nanda, learned Senior Advocate drew attention of this Court to Rule 8 of the Rules, which deals with the procedure for renewal of certificate of registration. It is his submission that an application for registration has to be filed in Form-A. On receipt of the said application, the Appropriate Authority shall hold an enquiry under sub-rule (2) of Rule 8 and after satisfying itself that the Applicant has complied with all Page 2 of 5 // 3 // the requirements of the Act and Rules, renew the certificate of registration in Form-B. If after enquiry and giving opportunity of hearing to the Applicant and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that the Applicant has not complied with the requirements of the Act and the Rules, it shall, for the reasons to be recorded in writing, reject the application for renewal of certificate of registration under Rule 8(3) of the Rules. However, sub-rule (6) of Rule 8 deals with the period of limitation for entertaining an application for renewal of certificate of registration. Sub-rule (6) of Rule 8 provides as under: 8. Renewal of registration:- xx xx xx 6) In the event of failure of the Appropriate Authority to renew the certificate of registration or to communicate rejection of application for renewal of registration within a period of ninety days from the date of receipt of application for renewal of registration, the certificate of registration shall be deemed to have been renewed.” 3.2 Referring to the counter affidavit filed by Opposite Party Nos.2 and 3, wherein it is specifically stated that the Petitioner was issued with a show cause notice on 25th July, 2023, Mr. Nanda, learned Senior Advocate submits that the notice to show cause was issued beyond 90 days of making application for renewal of certificate of registration, which was made on 24th May, 2023. It is further submitted that on the 91st day, the Appropriate Authority becomes functus officio to act upon the application in Form-A and as per sub-rule (6) of the Rule 8 certificate of registration is deemed to have been renewed. However, an e-mail was sent on 5th August, 2023 under Page 3 of 5 // 4 // Annexure-7 attaching the reasoned order, which is much beyond the statutory period of ninety days. 3.3 There are also some other infractions in the impugned order, but since the order of rejection is without jurisdiction and certificate of registration is deemed to have been renewed, other grounds need not be pressed into service at this stage. He, therefore, submits that the Petitioner should be allowed to operate the Ultrasound Clinic by opening the seal. 4. Mr. Mohanty, learned Additional Standing Counsel submits that there are several allegations against the Doctor, who has been named in the Form-A application. As such, following due procedure of law, the impugned order has been passed under Annexure-7 rejecting his application. It is, however, submitted that there is no material on record to show that the application for renewal of certificate of registration was rejected within a period of ninety days. He also submits that there cannot be any dispute with regard to the provision under sub-rule (6) of Rule 8 of the Rules, but looking at the allegations made against Petitioner’s Ultrasound Clinic and more particularly when rejection order has already been passed, the deeming provision under sub-rule (6) is waived. He, therefore, submits that the impugned order under Annexure-7 warrants no interference. 5. Considering the submissions made by learned counsel for the parties, this Court finds that the application in Form-A was made on 25th April, 2023, but the show cause notice to conduct an enquiry under sub-rule (3) of Rule 8 of the Rules was issued only on 25th July, 2023, i.e. on 91st day of submitting Page 4 of 5 // 5 // the Online application in Form-A. Further, the impugned order was passed much beyond ninety days, i.e. on 5th August, 2023 (Annexure-7). In view of the provision under sub-rule (6) of Rule 8, on receipt of the Online application for renewal of certificate of registration, the Appropriate Authority has to take a decision on the same within 90 days from the date of receipt of the application and communicate the same to the Applicant. On expiry of 90 days as provided the Appropriate Authority becomes functus officio to pass any order on the application and the certificate of registration is deemed to have been renewed. 6. Provision under sub-rule (6) of Rule 8 of the Rules is squarely applicable to the instant case. In view of the application of the aforesaid provision, certificate of registration of the Petitioner’s Ultrasound Clinic is deemed to have been renewed. As such, the authorities are directed to take follow up action and permit the Petitioner to operate the Ultrasound Clinic by breaking open the seal, if any and to issue renewal certificate in favour of the Petitioner observing the formalities. The entire exercise shall be completed within a period of fifteen days from the date of production of certified copy of this order. 7. Accordingly, the impugned order under Annexure-7 is set aside and the writ petition is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. Urgent certified copy of this order be granted on proper Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack bks Date: 09-Feb-2024 20:21:48 application. (K.R. Mohapatra) Judge Page 5 of 5