W.P.C. Nos. 2028/2005 (N) & 8769/2005, Kerala High Court

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930** ## **WP(C).No. 2028 of 2005(N)** **--------------------------------------PETITIONER(S):** **-------------------------** **1. N.K.SREEDHARAN VAIDYAR, NEDUMPARAMBIL PHARMACY, NEDUMPARAMBIL HOUSE, IRINJALAKUDA.** **2. T.A.SREEDHARAN VAIDYAR, GEEVAMRUTHA PHARMACY, THAYIL HOUSE, CHALAKKUDY.** **BY ADV. SRI.MATHAI M PAIKADAY(SR.) SRI.JOE JOSEPH KOCHIKUNNEL SRI.ANIYAN JOSEPH SRI.JOSE KURIEN PERAYIL SRI.SAJI VARGHESE** **RESPONDENT(S):** - **--------------------------** **1. STATE OF KERALA, REP. BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE REGISTRAR, COUNCIL OF INTELLIGENCE MEDICINE, OFFICE OF THE MEDICAL COUNCIL, RED CROSS ROAD, THIRUVANANTHAPURAM.** **3. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM.** **4. THE ASSISTANT EXCISE COMMISSIONER, CIVIL STATION, THRISSUR.** **5. THE CIRCLE INSPECTOR OF EXCISE** - **(IRINJALAKUDA)CHALAKKUDY P.O.** **ADV. SRI.N.RAGHURAJ, SC, TCMC & KNMC FOR R2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2008 ALONG WITH WPC NO. 8769 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.2028/2005 N** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER.** - **EXT.P2: COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER.** - **EXT.P3: COPY OF THE LICENCE ISSUED BY THE 3RD AND 4TH RESPONDENTS TO THE 1ST PETITIONER.** - **EXT.P4: COPY OF THE LICENCE ISSUED BY THE 3RD AND 4TH RESPONDENTS TO THE 2ND PETITIONER.** - **EXT.P5: COPY OF THE APPLICATIONS SUBMITTED BY THE 1ST PETITIONER FOR RENEWAL OF LICENCE.** - **EXT.P5(A): COPY OF THE CHALLAN SUBMITTED BY THE 1ST PETITIONER ALONG WITH THE APPLICATION.** - **EXT.P6: COPY OF THE APPLICATIONS SUBMITTED BY THE 2ND PETITIONER FOR RENEWAL OF LICENCE.** - **EXT.P6(A): COPY OF THE CHALLAN SUBMITTED BY THE 2ND PETITIONER ALONG WITH THE APPLICATION.** - **EXT.P7: COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER.** - **EXT.P8: COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER.** - **EXT.P9: COPY OF THE ORDER OF ASSISTANT EXCISE COMMISSIONER NO.4 – 601/05 DTD. 18/02/2006.** ## **RESPONDENT'S EXHIBITS:** ## **N I L** **/TRUE COPY/** ## **P.S.TO JUDGE** _Kss_ ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.Nos.2028 & 8769 of 2005** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of December, 2008.** ## **JUDGMENT** Common questions arise in these two writ petitions and therefore they are being disposed of by a common judgment. 2. The petitioners in both the writ petitions are registered practitioners of Ayurveda System of Medicine. In Writ Petition No.2028/2005, the first petitioner started practice at Irinjalakuda in 1951 and the second petitioner started practice at Chalakkudy in 1950. In Writ Petition No.8769/2005 the petitioner started practice in Ayurveda at Cherpu in the year 1946. 3. Exts.P1 and P2 in Writ Petition No.2028/2005 are the communications issued by the Registrar, Travancore-Cochin Medical Councils, Trivandrum to the respective petitioners stating that their names had been entered in the list of practitioners of Ayurvedic System of Medicine, maintained in his office as per Section 25 of the TravancoreCochin Medical Practitioners' Act. In Writ Petition NO.8769/2005, the petitioner has produced Ext.P1, the registration certificate issued by the said Registrar under Section 23(1)(ii) of the Act by which it is certified that the WPC 2028 & 8769/2005 2 petitioner therein has been registered under the Travancore-Cochin Medical Practitioners' Act, 1953. The petitioners have been thus practicing in Ayurvedic System of Medicine in the respective places as they were doing before. 4. For the purpose of treatment of patients, they have been manufacturing certain Ayurvedic medicines which contains alcohol. The petitioners were being issued licence under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 for the said purpose. The licence issued thus, were being renewed from time to time. They had produced Exts.P3 and P4 in Writ Petition No.2028/2005 and Ext.P2 in Writ Petition No.8769/2005. For renewal of licence for the year 2004-2005 they submitted applications before the competent authority which are evidenced by Exts.P5 to P6(a) in Writ Petition No.2028/2005 and Ext.P4 in Writ Petition No.8769/2005. When the respondents refused to renew the licence, the petitioners approached this court. In both the writ petitions, this court directed the authority to consider the applications. The applications have been rejected as per Ext.P9 in Writ Petition NO.2028/2005 and Ext.P5 in Writ Petition NO.8769/2005. The main reason for rejection is that going by the judgment of this court in O.P.No.27784/2002, there is a declaration that WPC 2028 & 8769/2005 3 only such persons who have acquired qualifications from the institutions included in the Schedule, and have obtained registration under the Act alone are entitled to provide treatment. A circular issued by the Excise Commissioner is also referred to in Ext.P9 as well as in Ext.P5. 5. The question therefore is whether the petitioners who are having the registration under the Travancore-Cochin Medical Practitioners' Act, 1953 can be denied the licence on the premise that they are not having the qualifications from the institutions listed in Schedule A. Learned counsel for the petitioners invited my attention to Sections 23, 25 and 38 of the Act to contend for the position that the persons who have been registered as per the process envisaged in the said provisions, are not prevented from practicing in Ayurvedic system of medicine going by the express terms of Section 38. It is also submitted that the authorities have misinterpreted the dictum laid down in the decision of this court in O.P.No.27784/2002 and connected cases (reported in **Vanchiyoor Madhom Dhanwanthari Sannidhanam v. State of Kerala and others** - 2003 (1) KLT 52). 6. Going by Section 23 of the Act, eligibility for registration is conferred on: (i) every holder of a recognised qualification and every practitioner holding appointment under the Government at the WPC 2028 & 8769/2005 4 commencement of the Act; and (ii) every person who within the period of one year or such other longer period as may be fixed by the Government from the date on which this act comes into force, proves to the satisfaction of the appropriate council that he has been in regular practice as a practitioner for a period of not less than five years preceding the 1[st] day of April, 1953 shall be eligible for registration under this Act.” Such practitioners who have got registration, are entitled to practice, especially in the light of Section 38 of the Act. Section 25 of the Act deals with the list of practitioners as on 1[st] April, 1953. The same is extracted below: “25. List of Practitioners as on 1[st] April 1953 – (1) The Register shall prepare and keep a list called 'List of persons in practice on the 1[st] day of April 1953. (2) Every person not being a person qualified for or entitled to registration under this Act, who within a period of one year, or such other longer period as may be fixed by the Government, from the commencement of this Act, proves to the satisfaction of the Registrar that he has been in regular practice in the State on the 1[st] day of April, 1953 of modern medicine, Homeopathic Medicine, Ayurvedic Medicine, Sidha Medicine or Unanitibbi Medicine shall be entitled to have his name entered in the aforesaid list on payment of Rs.10/-. Provided however that any person whose name has been removed from the registers maintained under the Medical Practitioners Act WPC 2028 & 8769/2005 5 1119 or the registers maintained under any act of a State Legislature in India or the register of any country where he was formerly practicing for infamous contact in a professional respect, shall not be entitled to have his name entered into list. (3) The provisions of sub-section (3) and (4) of Section 20, Section 27 and Section 33 shall mutates mutandis applied to the list referred to in sub-section (1).” 7. For easy reference, Section 38 of the Act is also extracted below: “38. Persons not registered under this Act, not to practice:- NO person other than (i) a registered practitioner or (ii) a practitioner whose name is entered in the list of practitioners published under Section 30 or (iii) a practitioner whose name is entered in the list mentioned in Section 25 shall practice or hold himself out, whether directly or by implication as practicing modern medicine, homeopathic medicine, or ayurvedic Medicine, Sidha Medicine or Unanitibbi Medicine and no person who is not a registered practitioner of any such medicine shall practice any other medicine unless he is also a registered practitioner of that medicine. Provided that the Government may, by notification in the Gazette that this section shall not apply to any person or class of persons or to any specified area in the State where none of three classes of practitioners mentioned above carries on medical practice. Provided further that this section shall not be applied to a practitioner eligible for registration under this act who, after having filed the application for registration, is awaiting the decision of the WPC 2028 & 8769/2005 6 appropriate council or of the Government in case of appeal. Provided also that this section shall not apply to a practitioner eligible for registration under this act until the period prescribed for application under Section expires.” Going by Section 38 of the Act, a registered practitioner or a practitioner whose name is entered in the list of practitioners published under Section 30 or a practitioner whose name is entered in the list mentioned in Section 25, can practice modern medicine, homeopathic medicine, or ayurvedic medicine, sidha medicine or unani medicine. Now, the question is whether the interpretation of the above provisions as attempted by the respondents is correct. Admittedly petitioners have obtained registration and hence their eligibility to practice cannot be doubted. 8. The reason stated in Ext.P9 in Writ Petition No.2028/2005 to reject the application for licence as mentioned already, is that this court in the judgment in **Vanchiyoor Madhom Dhanwanthari Sannidhanam's case (** 2003 (1) KLT 520) has held that persons who are not having the qualification from the institutions included in the schedule cannot practice the various systems of medicines, like Ayurveda, etc. A reading of the above said judgment shows that their Lordships were considering cases where a person who does not possess the recognised qualification and is not WPC 2028 & 8769/2005 7 registered under the Act, is entitled to practice or not. This is clear from paragraphs 1 and 2 of the judgment itself. In para 10, after considering the effect of Section 38 of the Act, it was held specifically thus: “Only a person whose name is entered in the register is entitled to practise medicine.” Again, in para 11 it has been held that “on a cumulative consideration of the provisions of the two statutes it is clear that persons who have not been registered as medical practitioners are not entitled to administer any medicine.” Now reliance is placed by the learned counsel appearing for the respondents in the observations in para 17 of the judgment stating that “it is clear that under the 1953 Act only those persons who have acquired the qualification from the institutions included in the schedule are entitled to practise medicine and claim registration.” Obviously, this sentence has to be read along with the statutory scheme as well as the findings rendered in paragraphs 10 and 11 of the judgment. There is no ambiguity regarding the fact that persons whose names are placed in the register as per Section 25 of the Act are entitled to practice. This is clear from Section 38 of the Act. It is not as if all persons who are not having the required qualification, are prohibited from practicing Ayurvedic medicine. If such an interpretation is adopted, that will render the statutory provisions nugatory. It cannot be said WPC 2028 & 8769/2005 8 that such a result was intended by this court while rendering the judgment in **Vanchiyoor Madhom Dhanwanthari Sannidhanam's case (** 2003 (1) KLT 520). Therefore, the approach made by the respondents in interpreting the dictum laid down in the above case has resulted in the denial of licence to the petitioners whose names find a place in the register of the medical practitioners prepared under the statutory scheme of the Travancore-Cochin Medical Practitioners' Act. 9. In the above view of the matter, the rejection of the application for licence by the impugned orders, viz. Ext.P9 in Writ Petition No.2028/2005 and Ext.P5 in Writ Petition No.8769/2005 is illegal and accordingly they are quashed. It is declared that the petitioners whose names are entered in the register, are entitled to be granted licence as sought for for manufacturing ayurvedic medicines. The period for which the licence was applied is over. If the petitioners submit fresh application under the form prescribed, along with the requisite fee, the same shall be considered by respondents 3 and 4 and if the application conforms to the stipulations of the relevant rules, licence shall be issued to them for the manufacture of ayurvedic medicine. The petitioners shall submit fresh application, if any, within one month from today. The action, as ordered above, will be taken within a further period of WPC 2028 & 8769/2005 9 two months thereafter. The writ petitions are allowed as above. No costs. **(T.R. Ramachandran Nair, Judge.)** **kav/**