Manisha Pralhad Bhosle (Dr.) vs State Of Maharashtra And Ors.
2004 Latest Caselaw 107 Bom

JUDGMENT

C.K. THAKKER, C. J.

1. The grievance of the petitioner in the present petition is that her application for permitting her to practise in medicine has not been decided by the respondents. A writ of mandamus is, therefore, sought directing the respondent authorities to decide the application.

2. The learned counsel for the petitioner stated that the petitioner holds B.E.M.S. Degree Certificate and is a registered Electro Homeopathic Practitioner. It is the case of the petitioner that she made an application in the prescribed format. A copy of the said application is also placed on record of the petition. In the columns relating to qualification and knowledge regarding Ayurvedic Science, it has been stated that the petitioner is S,S.C. (Secondary School Certificate Examination) as also possesses degree of Bachelor of Electropathy Medicine and Surgery (B.E.M.S.) and having "Book Knowledge" and Medical Professional Experience. It is, therefore, submitted that it is obligatory on the respondents to decide the application keeping in view the educational qualifications and experience of the petitioner.

3. The learned Additional Government Pleader, However, invited our attention to the provisions of the Maharashtra Medical Practitioners Act, 1961 (hereinafter referred to as "the Act"). Section 37 of the said Act permits a person to practise medicine in any rural area subject to the fulfilment of conditions laid down therein. Section 37 is in Chapter VI (General Provisions applicable to all Medical Practitioners). Sub-section (2) of Section 2 of the Act reads :

"For the purposes of Chapter VI, a person shall be deemed to practise any system of medicine who holds himself out as being able to diagnose, treat, operate or prescribe medicine or other remedy or to give medicine for any ailment, disease, injury, pain, deformity or physical condition or who, by any advertisement, demonstration, exhibition or teaching offers or undertakes, by any means or method whatsoever to diagnose, treat, operate or prescribe medicine or other remedy or to give medicine for any ailment, disease, injury, pain, deformity or physical condition." The proviso, however, states that a person who inter alia practices "electrotherapy" shall "not be deemed to practise medicine".

4. It was submitted by the learned Additional Government Pleader that since the petitioner practises in electro-therapy, she is not eligible to make such an application, and hence this Court may not issue writ of mandamus directing respondent-authorities to decide the application of the petitioner, who is ineligible to make such application.

5. Our attention in this connection has also been invited to a decision of the Division Bench of this Court in Electropathy Medicos of India v. State of Maharashtra and Ors., , to which one of us (S.A. Bobde, J.) was a party. A similar contention was raised before the Division Bench of this Court. Repelling the contention, in para 6 of the judgment, the Court observed :

"At the outset, it is required to be stated that electropathy system which is sought to be espoused by the petitioner-society is not recognised in India nor is it a part of homoeopathy system of medicines recognised in India as is conveyed by mis-leading name "electrohomoeopathy." In fact, no Government/University/ Authority has recognised the petitioner-society as medical institution entitled to confer degree and diploma or certificate in electropathy or electrohomoeopathy. The degrees, diplomas, certificates etc. conferred by the petitioner/colleges affiliated to it are not recognised in law and would not permit the students to practise as medical practitioners. We may also mention that electropathy is not recognised as a system of medicine in any part of the world including in Italy, where it is alleged to have been discovered in 1865 as is sought to be made out by the petitioner."

6. In the light of the provisions of Section 37, read with Proviso to Sub-section (2) of Section 2 of the Act as well as the decision of this court in Electropathy Medicos of India, in our opinion, the petitioner is ineligible. She, hence, could not have applied under Section 37 of the Act and no direction can be issued to the respondent-authorities to decide the application which was not competent and maintainable. The petition, therefore, deserves to be dismissed and is accordingly dismissed. No order as to costs.

Parties be given copies of this order duly authenticated by the Sheristedar/Private Secretary.