CA/11280/2010 2/ 7 ORDER
В IN
THE HIGH COURT OF GUJARATВ AT AHMEDABAD
CIVIL APPLICATION FOR VACATING INTERIM RELIEF No.11280 of 2010
IN SPECIAL
CIVIL APPLICATION No.12313 of 2009
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DISTRICT PANCHAYAT & 1 Petitioner(s)
Versus
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DR.KAUSHIK
BABULAL SHAH Respondent(s)
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:
MR NIKHILESHВ J SHAH for Petitioner(s) : 1 2.MR SAMIR J DAVE for Respondent(s) : 1,
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CORAM:
В HONOURABLE MR.JUSTICE H.K.RATHOD
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Date
: 06/10/2010
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ORAL
ORDER
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Heard
learned advocate Mr.NJ Shah on behalf of applicant.
This
application is preferred by District Panchayat through Appropriate authority in PNDTВ Act, CDHOВ District Panchayat, Bhadra, Ahmedabad through Dr.RR Vaidya Additional District Health Officer.The following averment made in para 2, 3, 4, 5 and 6 of present application are relevant, therefore, quoted as under:
2.Reply
& rejoinder to the SCA are filed.Thus the pleadings are almost complete, but for want of the matter being taken up for hearing, the petitioner is enjoying the stay, against show cause notice, granted by this Hon’bleВ Court vide order dated 26/2/2010.(Annexure A)
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3.The
same is against the settled principles of Law writ not maintainable against show cause notice.In another case under the Pre Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex selection) Act, 1994 PCPNDTВ Act for short involving sealing of sonographyВ machine and already acted upon suspension of registration, the very same Hon’bleВ Court has granted stay but the same has been quashed and set aside by the Division Bench of this Hon’bleВ Court (Coram: Hon’bleВ the Chief Justice Mr.S.J.MukhopadhyaВ and Hon’bleВ Mr.Justice AnantВ Dave).Copy of which is Annexed herewith as Annexure B.Other decisions relied upon by the applicant are as under:
1994
(2) GLRВ 1639 = 1995 (1) GLH 734
(1985)
2 SCC 412
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1989
ELT-43-24 = 1991 ECR 32-401
1996
GCD 3- 445
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1997
GLHВ 1- 431
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2007
JX(Guj) 0-357
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4.Continuation
of the interim relief amounts to allowing the petition by interim order which is also not permissible as per settled legal proposition.The order of the ad interim relief does not deal with the judgments relied by the applicant.The judgment relied by the other side is not applicable to the facts of the case.
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5.As
the petitioner has been found to be indulging in activity of sex determination, an act contrary to the provisions of the Act/Rule and thus frustrating the very basic purpose of the Act, it is in the interest of the society public at large to refrain the petitioner from conducting any activity contrary to statutory provision under the PCPNDTВ Act.Not to let an impression being spreadedВ to Medical fraternity that the PCPNDTВ Act can be taken lightly and flouted easily without having any fear of any deterrent, considering as the Hon’bleВ High Court being there as a savior, it is desirable to vacate the stay and let the proceedingВ under PCPNDT Act pursuant to the show cause notice under challenge, be allowed to go further.
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6.The
petitioner has not even avail of the effective alternative remedy.This wise also the main petition deserves to be rejected.The applicant herein rely upon the contentions raised in the reply filed in the main SCA and be permitted to raise further contention, in support of the case to vacate the interim relief, as and when required.
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In
view of aforesaid averment made in present application as referred above, prayed made in this application in para 8(B) is quoted as under:
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Vacate
the interim relief pa*sed in SCA no.12313/2009 vide order dated 26/2/2010 Annexure A.
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This application was filed in Registry of this Court on 20/8/2010 with a prayer to vacate interim relief pa*sed in SCA no.12313/2009 dated 26/2/2010.The order pa*sed by this Court on 26/2/2010, at that occasion, learned advocate Mr.NJ Shah remained present on behalf of respondent and after hearing him, order has been pa*sed by this Court which is quoted as under:
Heard Mr.B.B.Naik, learned Senior Advocate appearing with Mr.Samir J.Dave, learned Advocate for the petitioner and Mr.N.J.Shah, learned advocate for the respondents
It is contended by the learned Senior Advocate for the petitioner that only for a technical mistake, which is a clerical mistake, whereby instead of referring Registration No.735 of Isanpur, by mistake the Registration No.300 of Maninagar, was mentioned by the petitioner in the statutory Form в
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