Bombay High Court
The Registrar Maharashtra ... vs The State Of Maharashtra Through ... on 9 June, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
2023:BHC-AS:15371-DB 3-ASWP-2884-2020.DOC
Gaikwad RD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2884 OF 2020
The Registrar, Maharashtra Council of ...Petitioner
Homeopathy
Versus
The State of Maharashtra & Ors ...Respondents
Mr Rajaram V Bansode, with Sheetal Ubale, for the Petitioner.
Mrs PN Diwan, AGP, for Respondent No.1-State.
Mr Siddharth S Chapalgaonkar, with Nihar Chitre & Aadarsh
Pandey, for Respondent No.3.
Mrs Purnima Awasthi, for Respondent No.4-NCH.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 9th June 2023
PC:-
1. We issued Rule on 6th April 2023. Our order of that date
sufficiently sets out the nature of the controversy. The order reads
thus:
"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
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practise homeopathy. There is a reference to Articles 19
"and 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 an action taken under that Act does not mean
that there is automatically a violation of human rights. The
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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 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
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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."
2. By consent rule is made returnable forthwith. The impugned
order is of 31st October 2019 from pages 28 to 31. The Acting
Chairperson of the Maharashtra State Human Rights Commission
had before him a complaint that the present 3rd Respondent had
cleared the requisite Homeopathy course from the Babasaheb
Bhimrao Ambedkar Bihar University, Muzaffarapur during the
Academic Year 2012-13. The Petitioner applied for registration to
practise in Maharashtra in 2013, but there was no response.
3. The Human Rights Commission proceed on the footing, in
our view incorrectly, that there was a violation of human rights
within the meaning of the Protection of Human Rights Act, 1993
("Human Rights Act") and specifically with reference to Section
2(d) of the PHR Act. Unfortunately, there is no discussion in the
impugned order of the nature of the human rights or how these are
violated. There is no adherence to the procedure prescribed in
Chapter IV of the Human Rights Act and especially the provisions
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of Sections 17 and 18 of the Human Right Act regarding an enquiry.
Section 21(5) says that it may enquire (thus invoking Sections 17 and
18 and Chapter IV) into the violation of human rights only in respect
of matters relatable to entries in List II and List III of the VIIth
Schedule of the Constitution of India. This necessarily mean that
there is a two-level enquiry. First, there has to be an identification
that the subject matter is covered by List II or List III. We will
proceed on the footing that education is so covered. But that is not
all. It must then be shown that in respect of that entry, there is a
violation of a human right. Even that is not discussed. The reference
in impugned order is to Article 19 and then to 19A of the
Constitution. There is no Article 19A. We are told that this is to be
Article 19(1)(f ). We do not know how we can rewrite orders like
this. Without following the procedure and without a discussion
found in the impugned order, it is not possible to sustain that order.
It must be quashed and set aside. So ordered.
4. However, and perhaps fortunately for the Petitioner, all is not
lost. By our judgment and order dated 6th April 2023, the very same
date as the order in this matter issued rule, we dealt with a group of
Writ Petitions: Manmohan Pashupatinath Upadhyay & Ors
Maharashtra Council of Homoeopathy & Ors.1 In that. we considered
an identical issue where the Maharashtra Council refused to register
the Petitioner on the Maharashtra Council Rolls. The Petitioners
then did not dispute that they needed to be entered on the rolls of
the Maharashtra Homoeopathic Practitioners Act, 1960. We noted
2023 BHC-OS:2586-DB.
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that there is a Central Council Homoeopathic Act, 1973 as well.
Paragraphs 4 to 14 of that judgment reads thus:
"4. The immediate question in law is whether once a
person is registered by the Central Council, such a person is
entitled to registration under the Maharashtra Act. We are
concerned here only with the Central Council Act, and
none before us have contended otherwise.
5. The Central Council Act provides in Chapter III for
the 'Recognition of Medical Qualifications'. Chapter IV
deals specifically with 'the Central Register of
Homeopathy'. These are the two relevant Chapters for our
purposes. Chapter III has Sections 13 to 20. Section 13 deals
with the recognition of medical qualifications granted by
certain medical institutions in India. Section 14 has a
corresponding provision for States or countries outside
India. Then comes Section 15 which says that subject to any
other provision in the Act, any medical qualification
included in the Second or Third schedule "shall be
sufficient qualification for enrolment on any State Register
of Homeopathy". The word 'State Register of
Homeopathy' is defined in Section 2(1)(i) to mean a
register or registers maintained under any law for the time
being in force in any State regulating the registration of
practitioners of Homeopathy. Section 21, under Chapter IV,
deals with a separate register called the Central Register of
Homeopathy. It is in two parts. Part (1) has the names of all
persons who are for the time being enrolled on any State
Register and are possessed of the recognized medical
qualifications. Part (2) are the names of the persons other
than those in Part (1).
6. Section 23 then deals with registration in the Central
Register and says that the Registrar of the Central Council
may on receipt of a report of registration of a person in a
State Register or on an application made in the prescribed
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form by the person enter his name in the Central Register of
Homeopathy.
7. The Second Schedule of the Central Council Act
sets out the recognized medical qualifications in
Homeopathy granted by Universities, Boards or Medical
Institutions in India. This is divided State-wise and the
institutions within each State are listed. The Babasaheb
Bhimrao Ambedkar Bihar University at Muzaffarpur is
listed at entry No. 4B in the Second Schedule. There is a
list of the various degrees that are recognized including the
Bachelor of Homeopathic Medicine and Surgery
("BHMS"), and similar Homeopathic degrees. There
appear to be a total of ten such degrees awarded by the
Ambedkar University that are recognized in the Central
Act.
8. The Maharashtra Act is obviously connected with
the Central Act for the reasons that we have already set out
above. The relevant portions for our purposes today are to
be found in Chapter IV which deals with the Registration of
Practitioners. Section 20 is crucial for our purposes. We
reproduce the whole of this Section:
"20. Preparation of Register--
(1) As soon as may be after the appointed
day, the Registrar shall prepare and maintain
thereafter a register of Homeopathic
practitioners for the State of Maharashtra in
accordance with the provisions of this Act.
(1-A) The register shall contain the names of
practitioners, whose names are--
(i) continued on the register under sub-
section (4); and
(ii) entered in the register under sub-
section (3) or (5) on or after the date of
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commencement of the Bombay
Homoeopathic and Biochemic Practitioners'
(Amendment) Act, 1985)
(2) The register shall include the following
particulars, namely:--
(a) the full name, nationality and
residential address of the registered
practitioners;
(b) the date of his admission to the
register;
(c) the qualification for registration and
the date on which he obtained his degree,
diploma or any other like award in
Homoeopathy if any, and the authority which
conferred or granted it.
(d) his professional address and
(e) such further particulars as may be
prescribed by rules.
(3) Every person who possesses any of the
recognised medical qualifications shall, at any
time on an application made in the form
prescribed by rules to the Registrar and on
payment of such fee as the State Government
may, by notification in the Official Gazette,
specify be entitled to have his name entered in
the register.
(3A)(a) If the courses of study to be
undergone for obtaining any of the recognised
medical qualifications include a period of
training after a person has passed the
qualifying examination, and before such
qualification is conferred on him, any such
person shall, on an application made to the
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Registrar, in the form prescribed by the Rules
and on payment of such fee, as the State
Government may, by notification in the
Official Gazette, specify, be granted a
provisional registration in order to enable him
to practice Homoeopathic system of medicine
in the Recognised Institution for the purpose
of such training and for no other purpose, for
the period aforesaid;
(b) every person who is granted a
provisional registration under clause (a) shall
be given a certificate of provisional
registration in the form prescribed by the
Rules, which shall remain in force for such
period as may be specified therein.
(4) The register maintained under this
section and in force on the day immediately
preceding the date of commencement of the
Bombay Homoeopathic and Biochemic
Practitioners' (Amendment) Act, 1985
(hereinafter in this sub-section referred to as
"the Amending Act"), shall be deemed to be
the register maintained under the principal
Act as amended by the Amending Act and the
name of every person whose name is entered
in such register shall, subject to the provisions
of this Act, continue to be on the register.
(5) Notwithstanding anything contained
in any law for the time being in force, every
person entitled to be or is enrolled on the
register maintained under the
Homoeopathy Central Council Act, 1973,
but not enrolled on the register maintained
under this Act, shall, on an application and
on payment of the fee as provided in sub-
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section (3), be entitled to have his name
entered in the register maintained under
this Act.
(12)(a) Every registered practitioner shall be
given a certificate of registration prescribed by
rules; and shall practice Homoeopathy and
the Modern Scientific Medicine (Allopathy)
in the State to the extent of knowledge
received by passing the Certificate Course in
Modern Pharmacology approved by the State
Government. The registered practitioner shall
display the certificate of registration in a
conspicuous place in his dispensary, clinic or
place of practice.
(b) Such certificate shall be valid until it is
duly cancelled and the name of the
practitioner is removed from the register
under the provisions of this Act; and every
certificate of registration given before the
commencement of the Bombay
Homoeopathic and Biochemic Practitioners'
(Amendment) Act, 1974, which is valid on
such commencement shall, subject to the
provisions of section 26, be valid likewise, and
shall continue accordingly.
(c) Where it is shown to the satisfaction of
the Registrar that a certificate of registration
has been defaced, lost or destroyed, the
Registrar may, on payment of the prescribed
fee, issue a duplicate certificate in the form
prescribed under clause (a).
(13)(a) Any registered practitioner to whom a
certificate of registration is issued before the
day immediately preceding the date of
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commencement of the Bombay
Homoeopathic and Biochemic Practitioners
(Amendment) Act, 1985, and such certificate
is still in operation, may, at any time. by an
application in writing, accompanied by such
certificate (in original) and a fee of five
rupees. apply to the Registrar for issue of a
fresh certificate of registration in lieu of the
certificate issued earlier.
(b) On receipt of such application, the
Registrar shall cancel such certificate and
issue a fresh certificate of registration in the
form prescribed by rules made under clause
(a) of sub-section (12)."
(Emphasis added)
9. Section 20(5) is the provision that falls for analysis.
It begins with a non obstante clause and that clause is not
restricted to other provisions in the Act but extends to any
law for the time being in force. That sub-section says that
every person "entitled to be" or "enrolled" on the Register
maintained under the Central Council Act but not enrolled
on the Register maintained under the Maharashtra Act
Shall -- and the word is not 'may' -- on an application and
on payment of the fee provided in sub-section (3) be
"entitled" to have his name maintained in the Register
maintained under the Maharashtra Act. The reference to
sub-section (3) is only in regard to payment of the fees and
does not extend to qualifications.
10. The Petitioners claim that they were all registered
under the Central Council Act some time in 2014. At about
that time, the 1st Respondent, Maharashtra Council
insisted that they apply in Maharashtra for a registration.
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The Central Council, the Ministry of AYUSH and the
authorities at the Ambedkar University in Bihar all
repeatedly clarified that the Central Council registration
entitled the Petitioners to practice Homeopathy throughout
India.
11. The Maharashtra Council however refused to enter
the names of these ten Petitioners on the Maharashtra
Register. Hence the challenge in prayer clause (c) at page 31
to these refusals annexed as Exhibits A1 to A8 and the
applications C1 to C8. The orders in respect of the two
Petitioners are missing but we will take them as covered.
12. We need not go through each one of the rejections in
turn. Any one will suffice since they are all more or less in
the same terms. For April 6th Petitioner for instance, the
refusal is on the basis that he applied for registration with
Maharashtra Homeopathic Council on 8th April 2015. We
note that the corresponding certificate for the same
Petitioner at Exhibit B4 (page 54) is of 19th November
2014. The rejection letter notes that the 6th Petitioner
obtained a BHMS Degree in 1983 from the Magadha
Homeopathic Medical College affiliated with and
recognized by the Ambedkar University. Then there is a
reference to some Writ Petitions but the consequences are
not stated. The rejection is on the basis only of that
dismissal of those High Court Petitions. There is no
reference to the provisions of the statute. The letter then
says that if the Department of AYUSH takes an
independent positive decision, then the Petitioner is free to
reapply.
13. We entirely fail to understand what is to be made of
this. Section 20(5) is abundantly clear. It speaks of an
entitlement, and it speaks of a mandatory obligation when it
uses the word 'shall'. It also has a non obstante clause.
14. For this reason, the reliance on behalf of the 1st
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Respondent on Section 23 can have no application
whatsoever. Section 23 of the Maharashtra Act deals with
removal of names from a Register. Self-evidently, that
cannot apply because a person can be removed from a
Register only after he is placed on the Register to begin
with. The whole challenge here is to the refusal to enter the
names on the Register. There is no question of removal of
names if the person is not registered. The argument seems
to be that under Section 23(1)(ii)(B) the Maharashtra
Council may remove the name of a Practitioner and under
sub-sections (4) and (5) it may do so on its own motion or
after holding enquiries."
5. We, therefore, made Rule absolute. Since all the petitioners in
that group matter were registered with the Central Council, we
directed the Maharashtra Council to proceed to enter their names
on the Maharashtra Council rolls
6. In the present case, the 3rd Respondent is registered with the
Central Council of Homoeopathy. A copy of his registration
certificate is at page 204 of the Affidavit in Reply (repeated at 208).
This is certificate No.CCH-5405. It is dated 7th August 2015. In
other words, it was obtained after the 3rd Respondent applied for
the registration with the Maharashtra Council.
7. But now the entire landscape has changed. The 3rd
Respondent is now entitled to apply to the Maharashtra Council on
the basis of the Central Council Registration and is entitled to obtain
registration. Other than annexing his Central Council certificate to
the Affidavit in Reply, the 3rd Respondent does not seem to have
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actually made an application to the Maharashtra Council on the
basis of the Central Council registration.
8. The learned advocate for the 3rd Respondent states that an
application complete in all respect will be made within ten days, i.e.,
by 26th June 2023. Upon that being received and found to be
compete, it will be processed in accordance with our judgment in
Manmohan Pashupatinath Upadhyay by the Maharashtra Council,
the 1st Respondent by 7th July 2023.
9. Rule is thus made absolute in the foregoing terms and the
Petition is disposed of accordingly with no order as to costs.
(Neela Gokhale, J) (G. S. Patel, J)
9th June 2014
