(1) HIGH COURT OF MADHYA PRADESH JABALPUR WRIT PETITION NO.18526 of 2016 Dr. Ravi Garg Vs. State of M.P & others For Petitioner : Shri Manikant Sharma, Advocate. For Respondent/State : Shri B. D. Singh, GA O R D E R ( 18.4.2017.) Per : Sujoy Paul J. This petition filed under Article 226 of the Constitution takes exception to the order of Additional Collector dated 29.9.2016 Annexure P/6 and the order of respondent No.3/ “Supervising Authority” dated 4.11.2016 Annexure P/7. 2. Briefly stated the relevant facts are that one Mohd. Iqbal Khan preferred a complaint before the Collector during “Jansunwai” on 30.6.2016 against the petitioner. The Collector directed the Additional Collector to look into the matter. The Additional Collector, in turn, passed the order dated 29.9.2016. On the basis of reasons given in the said order, he opined that prima facie petitioner has not provided treatment to the patient because of which he died. Resultantly, he directed the respondent No.3 to take action in accordance with law. In turn, the respondent No.3 passed the impugned order dated 4.11.2016 Annexure P/7. (2) 3. Shri Manikant Sharma, learned counsel for the petitioner criticized these orders by contending that petitioner's clinic is registered under “The Madhya Pradesh Upcharyatgriha Tatha Rujopchar Samabandi Sthapnaye (Ragistrikaran Tatha Anugyapan) Adhiniyam, 1973” (for brevity “Adhiniyam”). The competent authority for taking action as per 'Adhiniyam' is respondent No.3 who is described as “Supervising Authority” under Section 2(k) of the Adhiniyam. He submits that the Additional Collector was not competent to conduct any inquiry and take any adverse decision against the petitioner. It is submitted that the order dated 14.11.2016 Annexure P/7 is solely based on the order of respondent No.3 and there was no independent application of mind of respondent No.3. It runs contrary to the statutory mandate prescribed in Sections 4, 5, 6 of the Adhiniyam. 4. Prayer is opposed by Shri B. D. Singh, learned Govt. Advocate. He submits that Collector has not directed the respondent No.3 to act in mechanical manner. He only directed him to take action in accordance with law. Hence, it cannot be said that respondent No.3 was working under the dictate. In addition, he submits that power to suspend the license, includes inherent power to cancel the license. He supported the impugned orders Annexure P/6 and P/7. 5. No other point is pressed by learned counsel for the parties. During the course of argument, learned counsel for the State fairly admits that respondent No.3 is the “supervising authority” in the present case. The (3) relevant portion of the order passed by Additional Collector reads as under :- ^^6- eq[; fpfdRlk ,oa LokLF; vf/kdkjh gjnk ds izfrosnu esa MkDVj fllkSfn;k ds }kjk dFku esa crk;k x;k fd cPpk vfrxaHkhj voLFkk esa Fkk mipkj gsrq esfMdy dkyst Hkksiky gsrq fjQj dj fn;k x;k] cPpk dh xaHkhj fLFkfr fufeZr gksus] tks vkxs e`R;q ds dkj.k esa cnyus dk jDrk/kku ,d dkj.k vfHker esa n'kkZ;k] ftlesa MkW- jfo xxZ futh fpfdRld ,oa MkW- :ch [kku dh Hkwfedk lansgkLin gSA MkW- :ch [kku esa vius dFku esa crk;k fd muds }kjk CyM dh dzkWlesafpax o CyM xqzfiax iwue larksjs ysc VsDuhf'k;u ls djkbZ rFkk os larq"B gSA eq[; fpfdRlk ,oa LokLF; vf/kdkjh gjnk us vius er esa ys[k fd;k x;k fd ek= 1-5 ekg ds cPps dks jDr yxkus dk fu.kZ; MkW- jfo xxZ dk mfpr izrhr ugha gksrk gS] D;ksafd mudk fu.kZ; Lo;a dk ugha Fkk] muds }kjk MkW- iou lksekuh ds iqjkus ipsZ@fjiksVZ dks vk/kkj cukdj buds }kjk jDr p<+kus dk fu.kZ; fy;k x;k Fkk] izdj.k esa MkW- jfo xxZ ds fo:) dk;Zokgh dh tk ldrh gS e-iz-f'k'kq e`R;q nj ,d gtkj izfr thfor tUe ij 63 izfr cPps gS] tks Hkh izdj.k esa uotkr f'k'kq dh mez 1-5 ekg Fkh] vU; ladze.k ls cPps dh e`R;q dk dkj.k gks ldrk gSA izdj.k esa f'kdk;rdRrkZ }kjk izLrqr bykt ds ipZs@fjiksVZ dh Nk;kizfr;ksa] fpfdRldksa ds dFku rFkk eq-fp-,oa Lok- vf/kdkjh gjnk ds izfrosnu ds vk/kkj ij Li"V gS fd ek= 1-5 ekg ds uotkr f'k'kq dks MkW- Hkkxor] MkW- iou lksekuh] MkW- jfo xxZ] futh fpfdRld ,oa ftyk fpfdRlky; esa MkW- feFkkSfy;k ,oa MkW- jkts'k fllkSfn;k }kjk ijh{k.k dj bykt fd;k x;k] e`R;q dk dkj.k jDrk/kku ls gksuk eq-fp- ,oa Lok- vf/kdkjh gjnk us vius vfHker ls n'kkZ;k gSA vr% mijksDr foospuk ds vk/kkj ij ;g Li"V gksrk gS fd izFke n`"V;k MkW- jfo xxZ futh fpfdRld }kjk iw.kZ ltxrk ls f'k'kq ds bykt ugha fd;k tkuk ik;k x;k] muds }kjk MkW- iou lksekuh ds ipsZ ,oa fjiksVZ ds vk/kkj ij jDr yxkus dk fu.kZ; fy;k] tcfd mUgsa Lo;a vko';d tkap djkuk pkfg;s FkkA vr% eq[; fpfdRlk ,oa LokLF; vf/kdkjh gjnk dks ;g vkns'k fn;k tkrk gS fd os bl laca/k esa fu;ekuqlkj dk;Zokgh djsaA ;g vkns'k vkt fnukad 29-9-2016 dks esjs gLrk{kj ,oa bl U;k;ky; dh eqnzk ls tkjh fd;k x;kA^^ 6. The relevant portion of order passed by respondent No.3 dated 4.11.2016 Annexure P/7 reads as under :- ^^i= dzekad 7232 fnukad 25-7-2016 ls tkap dj izfrosnu is'k djus gsrq funsZf'kr fd;k x;k] funsZ'k vuqlkj i= dzekad 8099 fnukad 6-8-2016 ls tkap izfrosnu vfHker lfgr izsf"kr fd;k x;k] muds }kjk foLr`r :i ls izR;sd rF;ksa dk v/;;u dj izFke n`"V;k MkW- jfo xxZ futh fpfdRld }kjk iw.kZ ltxrk ls f'k'kq ds bykt ugha fd;k tkuk ik;k x;k] muds }kjk MkW- iou lksekuh ds ipsZ ,oa fjiksVZ ds vk/kkj ij jDr yxkus dk fu.kZ; fy;k] tcfd mUgsa Lo;a vko';d tkap (4) djkuk pkfg;s FkkA vij dysDVj gjnk us vkns'k dzekad 9866@jhMj@v-d-@2016 fnukad 29-9-2016 ls eq[; fpfdRlk ,oa LokLF; vf/kdkjh gjnk ftyk gjnk dks ;g vkns'k fn;k x;k fd os bl laca/k esa fu;ekuqlkj dk;Zokgh djsaA vij dysDVj gjnk ds mDr vkns'k ifjis{; esa e-iz-'kklu } kjk e/;izns'k mip;kZx`g rFkk :tksipkj laca/kh LFkkiuk;sa ¼jftLVªhdj.k rFkk vuqKkiu½ vf/kfu;e 1973 ds dzekad 47 lu~ 1973 ds lsD'ku &5 esa mYysf[kr df.Mdkvksa ds ikyu u gksdj fpfdRlh; ifjp;kZ esa ikbZ xbZ deh ls uotkr f'k'kq dh e`R;q ,oa bykt esa tYnckth ,oa ykijokgh fd;s tkus dk nks"kh ik;s tkus ij MkW- Jh jfo xxZ] futh fpfdRld LVs'ku jksM gjnk ftyk gjnk dk iath;u dzekad CL@0524@flrEcj 2015 dks bl vkns'k ds tkjh gksus ds fnukad ls 1 ekg dh vof/k ¼tkjh fnukad ls 30 fnol½ ds fy;s fuyafcr j[kk tkrk gS] bl vof/k esa os fdlh izdkj dk iath;u vuqlkj mipkj vFkok fpfdRlh; ifjp;kZ lEikfnr ugha djsaxsA fdlh Hkh izdkj ls vkns'k ds mYya?ku dk nks"kh ik;s tkus ij vf/kfu;e ds izko/kkfur [k.Mksa esa fufgr fd;s x;s vuqns'kksa ds vuq:i muds fo:) le{k U;k;ky; esa vfHk;ksx izfrLFkkfir fd;s tkus gsrq v/kksgLrk{kjdrkZ Lora= gksxkA vr,o~ MkW- Jh jfo xxZ futh fpfdRld LVs'ku jksM gjnk ftyk gjnk ls vis{kk dh tkrh gS fd os vkns'k dk v{kjka'k ikyu lqfuf'pr djsaA^^ (Emphasis Supplied) 7. A plain reading of the order of learned Additional Collector dated 29.9.2016 shows that he has prima facie given a finding that petitioner has not given proper treatment to the child because of which he died. The order of respondent No.3 shows that he has taken the decision solely on the basis of report of Additional Collector dated 29.9.2016. The highlighted portion of order dated 4.11.2016 leaves no room for any doubt that respondent No.3 has not applied his independent mind and mechanically acted on the directions and report submitted by the Additional Collector dated 29.9.2016. 8. This is trite law that if a statute prescribes a thing to be done in a particular manner, it has to be done in same manner or not at all. See AIR 1959 SC 1993 – Baru Ram Vs. Prasanni; 2001(4) SCC Page 9- Dhananjay Reddy Vs. State of Karnataka, 2002(1) SCC (5) 633- CIT Vs. Arjum M.H. Ghaswala and judgment of this Court reported in 2011(2) MPLJ 690 – Satyanjay Tripathi Vs. Banarsi Devi. 9. In the light of this settled legal position, it is profitable to refer to certain provisions of the Adhiniyam. Section 4, 5 and 6 reads as under :- “(4) The supervising authority may reject an application if he is satisfied – (a) That the applicant, or any person employed by him at the nursing home or the clinical establishment, is not a fit person, whether by reason of age or otherwise, to carry on or to be employed at, the nursing home or the clinical establishment of such a description as the nursing home or clinical establishment named in the application; or (b) That the applicant or the nursing home or the clinical establishment does not fulfill the condition prescribed under sub section (3); or (c) That the real object of the applicant is to use, or allow the nursing home or clinical establishment to be used for unsocial or immoral purpose or for both; or (d) In the case of a nursing home other than a maternity home, that the nursing home is not or will not be under the charge of a qualified medical practitioner resident therein and that the nursing of persons received and accommodated therein is not or will not be under the superintendence of a qualified nurse resident there in; or (e) In the case of a maternity home that such maternity home is not or will not be under the charge of qualified midwife and that the attendance on every woman before, at, or after child-birth or on any child born is not or will not be under superintendence of a qualified midwife resident therein; or (f) That for reasons connected with the situation, construction, accommodation, staffing or equipment, the nursing home or clinical establishment is not fit to be used for a nursing (6) home or the clinical establishment of such a description as the nursing home or the clinical establishment mentioned in the application; and shall in every case, where the application is rejected, record the grounds for rejection. (5) Every license granted under sub-section (3) shall be upon such terms as may be prescribed and such terms may, inter alia, require,- (a) Such precautions to be observed for safe guarding that the nursing home or the clinical establishment is not used for unsocial or immoral purpose or both; (b) such sanitary and hygienic measures be taken and such accommodation to be provided as may be specified by the supervising authority; (c) Such minimum equipment to be provided as may be specified by the supervising authority in this behalf; (d) In the case of nursing homes records to be kept of persons received and accommodated and intimation to be given to specified authority of births, deaths and miscarriages therein, and such statistics shall be transmitted each month, besides an annual report to the concerned Ministry of the Central Government, and to such other authorities as may be prescribed; (e) In the case of clinical establishment, records to be kept of persons investigated or treated therein, and such statistics shall be forwarded each month to the State Government and to the concerned Ministry of the Central Government. *(6) A certificate of registration and a license issued under this section shall, subject to the provisions of section 5, be in force and shall be valid until the 31st day of March of the third year next following the date of which such certificate of registration and license was issued. (7) A certificate of registration issued in respect of nursing home or a clinical establishment shall be kept affixed in a conspicuous place in the nursing home or the clinical establishment, as the case may be. 5. If at any time after any person has been registered in respect of any nursing home or (7) clinical establishment and granted a license therefor, the supervising authority is satisfied, – (i) that the terms of the license are not being complied with ; and (ii) that any of the grounds which would have entitled him to refuse the application for registration or license, exist ; or (iii) that the person registered and licensed, has been convicted of an offence punishable under this Act ; or (iv) that any other person who has been convicted of an offence under this Act is materially interested in the nursing home or the clinical establishment. he may cancel such registration and license. 6. (1) Before making an order refusing an application for registration and license in respect of a nursing home or a clinical establishment or an order canceling any registration and license in respect thereof, the supervising authority shall give to the applicant or to the person registered and licensed not less than one calendar month's notice of its intention to make such an order, and every such notice shall state the grounds on which the supervising authority intends to make the order and shall contain in intimation to the effect that if within a calendar month of the receipt of the notice the applicant or the person registered informs the authority in writing that he desires so to do, the supervising authority shall, before making the order, give him an opportunity of showing cause (in person or by representative) why the order should not be made. (2) If the supervising authority after giving the applicant or the person registered an opportunity of showing cause as aforesaid, decides to refuse the application for registration and license or to cancel the registration and the license, as the case may be, it shall make an order to that effect and shall send a copy of the order by registered post to the applicant or the person registered. (3) Any person aggrieved by an order refusing (8) an application for registration and license, or canceling any registration and license may, within a period of a calendar month after the date on which the copy of the order was received by him, appeal to the 1appellate authority, against such order. (4) Deleted. (5) An appeal shall not operate as a stay of the order appealed against except so far as the 2appellate authority, may order. (6) 3 The appellate authority may, for sufficient cause order the stay of the order appealed against until further orders or until the disposal of the appeal whichever is earlier. (7) Where an application is made for stay of the order appealed against before the expiration of the time prescribed for appealing there from the supervising authority, which made the order may, on sufficient cause being shown, order the stay . 10. Section 5 of the Adhiniyam makes it clear that the supervising authority must be 'satisfied' about certain violations which are enumerated in clauses (i) to (iv). The words “satisfied” has a definite connotation in law. It needs independent application of mind by the statutory authority to whom the power is vested. In other words, it should be the personal satisfaction of the supervising authority which must be based on his independent application of mind. In the present case, as noticed, the said authority has acted on the directions and findings recorded by learned Additional Collector. For this reason alone the impugned order Annexure P/7 cannot sustain judicial scrutiny. 11. Section 6 of the Adhiniyam provides that before taking decision, an opportunity to show cause must be given. The principles of natural justice are codified in (9) the shape of Section 6 of the Adhiniyam. In the present case, admittedly, no opportunity of any nature was given to the petitioner before passing the order dated 4.11.2016 Annexure P/7. 12. On the basis of foregoing analysis, the impugned order dated 29.9.2016 and 4.11.2016 cannot be permitted to stand. Resultantly, both the said orders are hereby set aside. Liberty is reserved to the competent authority to proceed against the petitioner in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the case. 13. Petition stands allowed. c.c. as per rules. (Sujoy Paul) Judge mrs.mishra