The Registrar Maharashtra ... vs The State Of Maharashtra Through ...
2023 Latest Caselaw 3413 Bom

                                                                             904-ASWP-2884-2020.DOC




                        Shivgan



          Digitally          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          signed by
          SHAMBHAVI
SHAMBHAVI NILESH                          CIVIL APPELLATE JURISDICTION
NILESH    SHIVGAN
SHIVGAN   Date:
          2023.04.10
          15:11:03                         WRIT PETITION NO.2884 OF 2020
          +0530




                        The Registrar Maharashtra Council of
                        Homeopathy                                                          ...Petitioner
                             Versus
                        The State of Maharashtra
                        Through Secretary of General Administration &
                        Ors                                                             ...Respondents


                        Mr RV Bansode, for the Petitioner.
                        Mr PN Diwan, AGP, for the Respondent-State.
                        Mr Vansh Bahadur, for Respondent No.3.
                        Mrs Purnima Awasthi, for Respondent No.4 (NCH).



                                                      CORAM: G.S. Patel &
                                                             Neela Gokhale, JJ.

DATED: 6th April 2023 PC:-

1. The Petitioner is the Registrar of the Maharashtra Council of Homeopathy. The challenge is to an order dated 31st October 2019 passed by the Maharashtra State Human Rights Commission in Case No. 823 of 2016 filed by the 3rd Respondent. By that order, a copy of which is at page 28, the learned Commissioner has directed the Petitioner to issue a registration in favour of the 3rd Respondent to practise homeopathy. There is a reference to Articles 19 "and

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19A" of the Constitution of India. We assume the second reference is an inadvertent error. The Commission also passed directions to the Petitioner to issue the necessary registration within a period of four weeks, and this is apparently said to be in accordance with the provisions of Section 18(e) of The Protection of Human Rights Act, 1993 ("Human Rights Act") and Regulations 23 and 24 of the Maharashtra State Human Rights Commission (Procedure) Regulations, 2011.

2. On behalf of the Petitioner, Mr Bansode submits that the State Human Rights Commission has no jurisdiction whatsoever. The entire field is occupied by a statute and there are statutory remedies. Even assuming that some statutory provision has not been followed, or the impugned action is contrary to the statute, this does not in itself generate a cause of action under the Human Rights Act or confer jurisdiction on the Human Rights Commission. Human rights are defined in Section 2(1)(d) of the Human Rights Act to mean rights relating to life, liberty, quality and dignity of the individual guaranteed by the Constitution and embodied in international covenants and enforceable by Courts in India. But this does not mean that there is conferred on the State Human Rights Commission a jurisdiction or power as wide as Article 226 of the Constitution of India or that the State Human Rights Commission can direct even a statutory authority to act in the manner not contemplated by the statute itself on the ground that there is an alleged human rights violation. The statute in question, namely, the Maharashtra Homeopathic Practitioners Act, 1960 ("MHP Act") has adequate provisions for registration, removal from the register and cancellation of registration. The fact that a person is affected by

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an action taken under that Act does not mean that there is automatically a violation of human rights. The Constitutional right to practice a profession does not mean that any person or citizen has a right to practice or to be registered to practice de hors the governing statute. No one has a 'fundamental right' to practice homeopathy or to be registered as a homeopath without regard to the MHP Act. If the action taken -- of de-registration or refusing to register -- is under and within the MHP Act, then there can be no question of 'violation of human rights'.

3. In any case, the impugned order only says that the 3rd Respondent is at liberty to apply again after obtaining the necessary clarifications from the Central Council. Even if the 3rd Respondent is already registered with the Central Council, his remedies lie elsewhere.

4. We have today in a separate judgment in Writ Petition No. 3468 of 2022 dealt with a similar case of non-registration or refusal of registration but that was in a Writ Petition that was brought before us by the individuals affected. They did not go to the Human Rights Commission.

5. The question however in this Petition is not one of the merits but of a jurisdiction which goes to the root of the matter. The 3rd complainant has not filed a Writ Petition before us assailing the decision of the Petitioner. He maintains that the State Human Rights Commission's impugned order must be implemented and that the Petition must be dismissed. He seeks to place reliance on

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two decisions, one of the Allahabad High Court and one of a Full Bench of the Madras High Court. We will consider those decisions.

6. However, prima facie, there is substance to Mr Bansode's case about the lack of jurisdiction. In fact, as he puts it, if this approach is to be accepted then there is not a single branch of public law in which the State Human Rights Commission would not have jurisdiction entirely overlapping that of the Writ Court under Article 226 of the Constitution of India.

7. Hence, Rule. All Respondents waive service of Rule.

8. Affidavits in Reply are to be filed by the 3rd and 4th Respondent (the latter is the Central Council of Homeopathy)by 28th April 2023. No rejoinder at this stage with leave of the Court.

9. The operation of the impugned order is stayed but only until the next date.

10. List the Petition peremptorily for hearing and final disposal on 9th June 2023 at 2:30 pm.

(Neela Gokhale, J) (G. S. Patel, J)

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