# Praveen Kumar v. State of U.P

- **Citation:** (2014) 1 ILRA 118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-16
- **Case number:** Civil Misc. Writ Petition No. 64481 of 2012
- **Bench:** V.K. Shukla, Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/praveen-kumar-v-state-of-u-p-42889
- **Pages:** 13

## Headnote

Constitution of India, Art.-226-Petitioner
being registered with board of Ayurvedic &
Unani,Tibbisystem-with
specialization
in
C.C.H-claiming practice in modern medicine
(alopathic)-held-dearth
of
doctor
and
rendering service to poor people-can not be
allowed
for
transgression
to
another
branch-petition dismissed.

Held: Para-36
This is not at all case of the petitioner that
he has acquired degree or qualification as
is provided for under the Indian Medical
Council Act, 1956, and is registered in the
State register, maintained in this regard
then, in such a situation and in this
background, the petitioner cannot be
permitted to administer the medicine
connected with the modern medicine and
it may be true on the ground that large
number of poorer sections of the society,
being rendered service by him and various
other similarly situated but the same
cannot be a criteria to flout the statuary
provisions, the same being in the realm of
policy decision of other constitutional
functionaries. Apex Court in the case of
Mumbai Vs. State of Maharashtra and
another reported in JT 2009 (3) SC 351
has repelled such an argument wherein
plea has been raised that incumbent was
rendering service to treat the poor people
and there is dearth of Doctors, and
accordingly, he should be permitted to
prescribe medicine.

Case Law discussed:
1996(4) SCC 332; (1998) 7 SCC 579; 1998Laws(SC)-7-81; 2000(5)SCC 80; [(2001) 2 JIC
774(All)];
2004(2)ESC(All)960;
2004(2)ESC
976; W A No. 1260 OF 2006; AIR 1999 SC
468; W.P. No. 13696 of 2009; (2013)4 SCC
252; AIR 1995SC 922.

## Text

_Characters 0–39,749 of 44,341. This is a partial read: ask again with offset=39749 for what follows._

118 INDIAN LAW REPORTS ALLAHABAD SERIES
perverse, in the sense that they are not
supported by the evidence brought on record
by the parties or that they are against the
weight of evidence, it would be the duty of the
Deputy Director to scrutinize the whole case
again so as to determine the correctness,
legality or propriety of the orders passed by
the authorities subordinate to him. In a case,
like the present, where the entries in the
revenue records are fictitious or forged or they
were recorded in contravention of the
statutory provisions contained in the U.P.
Land Records Manual or other allied statutory
provisions, the Deputy Director would have
full power under Section 48 to reappraise or
re-evaluate the evidence-on-record so as to
finally determine the rights of the parties by
excluding forged and fictitious revenue entries
or entries not made in accordance with law.

10. Similar view has been taken by
Supreme Court in Sheshmani Vs. DDC
and others, 2000 (91) RD 210 and Gulzar
Vs. DDC and others, (2009) 12 SCC 590.
Due to some contradictory decisions,
Explanation (3) has been added by U.P.
Act No. 3 of 2002. Thus, the arguments
raised by the counsel for the petitioner
that in case of disagreement, Deputy
Director of Consolidation ought to have
remanded the case to Settlement Officer
Consolidation is not liable to be accepted.

11. The practice of remand has been
deprecated by Supreme Court time to time.
Supreme Court in Municipal Corpn.,
Hyderabad v. Sunder Singh, (2008) 8 SCC
485, held that it is now well settled that
before invoking the provision of Order 41
Rule 23 of the Code of Civil Procedure, the
conditions precedent laid down therein must
be satisfied. It is further well settled that the
court should loathe to exercise its power in
terms of Order 41 Rule 23 of the Code of
Civil Procedure and an order of remand
should not be passed routinely. It is not to be
exercised by the appellate court only because
it finds it difficult to deal with the entire
matter. If it does not agree with the decision
of the trial court, it has to come with a proper
finding of its own. The appellate court cannot
shirk its duties.

12. Settlement Officer Consolidation
found that marriage of Mohkam to Maya
was proved. But as Maya was not examined
to prove that Mithlesh Babu was her born
due to bedlock with Mohkam as such, the
matter was remanded for fresh trial. Mithlesh
Babu examined Satyapal and Thakuri and
filed his school record. On the basis of these
evidence, the Consolidation Officer recorded
findings that it was proved that Mithlesh
Babu was legitimate son of Mohkam. In the
circumstances, the remand was wholly
unnecessary and only allowing the parties to
fill up the lacuna in their evidence.
Respondent-1 has rightly set aside the order
of the appellate Court. Finding of facts
recorded by respondents-1 and 2 do not
suffer from any illegality.

13. In view of the aforesaid
discussion, the impugned orders do not
suffer from any illegality. The writ
petition has no merit and is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2013

BEFORE
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No. 64481 of 2012

Praveen Kumar... Petitioner
Versus
State of U.P.... .Respondent

Counsel
for
the
Petitioner:
1 All] Praveen Kumar Vs. State of U.P.
119
Sri Hira Lal Singh Kushwaha
Sri Pankaj Dube

Counsel for the Respondent:
C.S.C.

Constitution of India, Art.-226-Petitioner
being registered with board of Ayurvedic &
Unani,Tibbisystem-with
specialization
in
C.C.H-claiming practice in modern medicine
(alopathic)-held-dearth
of
doctor
and
rendering service to poor people-can not be
allowed
for
transgression
to
another
branch-petition dismissed.

Held: Para-36
This is not at all case of the petitioner that
he has acquired degree or qualification as
is provided for under the Indian Medical
Council Act, 1956, and is registered in the
State register, maintained in this regard
then, in such a situation and in this
background, the petitioner cannot be
permitted to administer the medicine
connected with the modern medicine and
it may be true on the ground that large
number of poorer sections of the society,
being rendered service by him and various
other similarly situated but the same
cannot be a criteria to flout the statuary
provisions, the same being in the realm of
policy decision of other constitutional
functionaries. Apex Court in the case of
Mumbai Vs. State of Maharashtra and
another reported in JT 2009 (3) SC 351
has repelled such an argument wherein
plea has been raised that incumbent was
rendering service to treat the poor people
and there is dearth of Doctors, and
accordingly, he should be permitted to
prescribe medicine.

Case Law discussed:
1996(4) SCC 332; (1998) 7 SCC 579; 1998Laws(SC)-7-81; 2000(5)SCC 80; [(2001) 2 JIC
774(All)];
2004(2)ESC(All)960;
2004(2)ESC
976; W A No. 1260 OF 2006; AIR 1999 SC
468; W.P. No. 13696 of 2009; (2013)4 SCC
252; AIR 1995SC 922.

(Delivered by Hon'ble V.K. Shukla, J.)

1. Praveen Kumar has approached
this Court praying therein for following
reliefs:

(i) a writ, order or direction in the
nature of mandamus commanding and
directing the respondent to permit the
petitioner
to
practice
as
Modern
Medicines
(Allopathic
Medicines)
alongwith Aurvedic Medicines in the
wake and light of the judgment of Hon'ble
Supreme Court in the case of State of
Haryana Vs. Phool Singh decided on July,
20, 1998.

(ii) a writ, order or direction in the
nature of mandamus commanding and
directing the respondent not to disturb the
petitioner's career in any way even
alleging him as Jhola Chhap Doctor."

2. Petitioner claims that he has got to his
credit B.A.M.S. Degree from Rajiv Gandhi
University of Health Science Karnataka and is
registered with registration No. 57099 with
Board of Aurvedic and Unani Tibbi Systems
of Medicine, U.P.. Petitioner claims that he
has also done specialization course in Child
Health (Paediatric) C.C.H and is having
certificate no. IHSM/7903/11. Petitioner
further claims that students of MBBS, BUMS,
BAMS and BHMS are equally eligible for
CCH Course. Petitioner submits that he is a
competent
B.A.M.S
Doctor
having
knowledge and training of both modern and
aurvedic medicines, as the course of B.A.M.S.
comprises not only the syllabus and
curriculum of Aurvedic medicines but also to
great extent the syllabus and curriculum of
modern medicines, in such a situation and in
this background, petitioner claims that he is
entitled to and deserves to practice modern
medicines also alongwith Aurvedic medicines
and in the said practice no obstructions should
be caused by the respondents.
120 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Petitioner has proceeded to mention
that as there is dearth of doctors, in view of
the same petitioner should be permitted to
practice in morden medicines (Allopathy
medicines) alongwith Aurvedic medicines
and any impediment sought to be created to
his practice be stopped.

4. To the said writ petition counter
affidavit has been filed and therein stand
has been taken that request as has been
made by the petitioner cannot be accepted
as petitioner does not fulfil requisite
minimum eligibility criteria provided for
under Indian Medical Council Act, 1956
and petitioner is not at all qualified to
practice in the said field and petitioner
cannot claim as a matter of right to
practice
in
Modern
Medicines
and
petitioner can practice in the branch of
"Indian Medicine" only.

5. To the said counter affidavit,
rejoinder
affidavit
has
been
filed
disputing
the
averments
mentioned
therein and the judgment in the case of
State of Haryana Vs. Phool Singh decided
on 20.07.1998 has been appended and has
been relied upon.

6. After pleadings mentioned above
have been exchanged present writ petition
has been taken up for final hearing and
disposal.

7. Sri Hira Lal Singh Kushwaha,
learned
counsel
for
the
petitioner
submitted with vehemence that in the
present case petitioner is fully entitled to
practice even "Modern medicines" as he
has knowledge and training of general use
of allopathic medicine which is included
in the course of B.A.M.S. Degree and
there being dearth of Doctors in the State
of U.P., such permission should be
accorded specially keeping in view the
provision of Rule 2 (ee) of the Durgs and
Cosmetics Rules, 1945 as well as the
provisions of Section 17 (3) (b) of the
Indian Medicine Central Council Act,
1970 which gives privilege to the
practitioners
of
Indian
System
of
Medicine to practice alongwith "Indian
medicine" any system of medicine and
accordingly writ petition deserves to be
allowed.

8. Countering the said submission Sri
J.K.Tiwari,
learned
Standing
counsel
submitted that petitioner is entitled to
practice in the Indian System of Medicine
Branch comprising of Ashtang Ayurveda,
Sidha the qualification recognized under the
Indian Medicine Central Council Act, 1970
and is not at all entitled to practice in
Allopathy medicine which is provided for
under the Indian Medical Council Act,
1956, as such writ petition deserves to be
dismissed.

9. In order to examine the issue as
has been sought to be raised by the
petitioner before this Court, this Court
proceeds to take note of statutory
provision which governs the field of
"Modern Medicines" as well as "Indian
Medicines", as well as the relevant
provisions of Drugs and Cosmetics Rules
, 1945.

10. To start with the provision as
contained under the Drugs and Cosmetics
Rules, 1945, Section 2(ee) being relevant
is reproduced below:

2[(ee)
"Registered
medical
practitioner" means a person__

(i)holding a qualification granted by
an authority specified or notified under
Section 3 of the Indian Medical Degrees
Act, 1916 (7 of 1916), or specified In the
1 All] Praveen Kumar Vs. State of U.P.
121
Schedules to the Indian Medical Council
Act, 1956 (102 of 1956); or

(ii)
registered
or
eligible
for
registration in a medical register of a State
meant for the registration of persons
practicing the modern scientific system of
medicine 3 [excluding the Homoeopathic
system of medicine] ; or

(iii) registered in a medical register,
3 other than a register for the registration
of Homoeopathic practitioner, of a State,
who although not falling within subclause (i) or sub-clause (ii) declared by a
general or special order made by the State
Government in this behalf as a person
practising the modern scientific system of
medicine for the purposes of this Act; or

(iv)
registered
or
eligible
for
registration in the register of dentists for a
State under the Dentists Act, 1948 (16 of
1948); or

who is engaged in the practice of
veterinary medicine and who possesses
qualification approved by the State
Government] "

11. The Indian Medical Council Act,
1956 holding the field Modern medicine
(Allopathic) has been promulgated with
an object for reconstitution of Medical
Council of India and the maintenance of
Medical Register of India. Section 2 of
the Act deals with definition and SubSections (d), (f), (h) and (k) being
relevant are being reproduced below:

"(d)
"Indian
Medical
Register"
means the medical register maintained by
the Council.

(f)
"medicine"
means
modern
scientific medicine in all its branches and
includes surgery and obstetrics, but does
not include veterinary medicine and
surgery .

(h) recognised medical qualification"
means any of the medical qualifications
included in the Schedules.

(k) State Medical Register" means a
register maintained under any law for the
time being in force in any state regulating
the
registration
of
practitioners
of
medicine.".

12. Section 11 of this Act provides
that the medical qualifications granted by
any University or Medical Institution in
India which are included in the First
Schedule shall be recognised medical
qualifications for the purposes of this Act.
The
First
Schedule
enumerates
the
recognised medical qualifications granted
by Universities or Medical institutions in
India. Section 15(1) provides that subject to
the other provisions contained in this Act,
the medical qualifications included in the
Schedule shall be sufficient qualification for
enrolment on any State Medical Register.
Section 15(2)(b) provides that save as
provided in Section 25 no person other than
a medical practitioner enrolled on a State
Medical Register, shall practise medicine in
any State. Section 15(3) lays down that any
person who acts in contravention of any
provision of Sub-section (2) shall be
punished with imprisonment for a term
which may extend to one year, or with fine
which may extend to one thousand rupees,
or with both.

13. The Indian Medicine Central
Council Act. 1970 was enacted by the
Parliament and was published on 21-121970. Its preamble shows that it is an Act
to provide for the Constitution of a
Central Council of Indian Medicine and
the maintenance of a Central Register of
Indian
Medicine
and
for
matters
connected therewith. Section 2(1) of this
122 INDIAN LAW REPORTS ALLAHABAD SERIES
Act gives the definition clause and
Clauses (b), (c), (d), (e), (j) and (h) of
Section 2(1) read as follows:

"(b)
"Board"
means
a
Board,
Council, Examining Body or Faculty of
Indian Medicine (by whatever name
called)
constituted
by
the
State
Government under any law for the time
being in force regulating the award of
medical qualifications in, and registration
of practitioners of, Indian medicine;

(c) "Central Council" means the
Central Council of Indian Medicine
constituted under section 3;

(d) "Central Register of Indian
Medicine" means the register maintained
by the Central Council under this Act.

(e) "Indian Medicine" means the
system of Indian medicine commonly
known as Ashtang Ayurveda, Siddha or
Unani Tibb whether supplemented or not
by such modern advances as the Central
Council may declare by notification from
time to time.

'(ea) "medical college" means a
college of Indian medicine, whether
known as such or by any other name, in
which a person may undergo a course of
study or training including any postgraduate course of study or training which
will qualify him for the award of a
recognized medical qualification;'.

(f) "medical institution" means any
institution within or without India, which
grants degrees, diploma or licenses in
Indian medicine.

( g) "prescribed" means prescribed
by regulation;

(h)
"recognised
medical
qualification" means any of the medical
qualifications, including Post-graduate
medical qualification, of Indian medicine
included in the Second, Third or Fourth
Schedule;

(i) "regulation" means a regulation
made under section 36;

(j)
"State
Register
of
Indian
Medicine" means a register or registers
maintained under any law for the time
being in force in any State regulating the
registration of practitioners of Indian
Medicine;"

14. Section 2(1)(e) shows that "Indian
Medicine" means the system of Indian
medicine commonly known as Ashtang
Ayurveda, Siddha or Unani Tibb. Allopathic
system of medicine is not at all included in the
aforesaid definition. Chapter III of this Act
deals with recognition of medical qualifications
and Section 14 thereof provides that the
medical
qualifications
granted
by
any
University, Board or other medical institution
in India which are included in the Second
Schedule
shall
be
recognised
medical
qualifications for the purposes of this Act. The
Second Schedule to the Act gives a long list of
recognised medical qualifications in Indian
medicine granted by Universities. Boards and
other Medical Institutions in India, Part 1 of this
Schedule deals with Ayurveda and Siddha and
Part II deals with Unani. Section 17(1) of this
Act provides that subject to the other provisions
contained in this Act any medical qualification
included in the Second Schedule shall be
sufficient qualification for enrolment on any
State Register of Indian Medicine. Sub¬section
(2) of Section 17 imposes certain restrictions
and Clause (b) thereof lays down that no
person other than a practitioner of Indian
medicine who possesses a recognised medical
qualification and is enrolled on a State Register
or the Central Register of Indian Medicine shall
practise Indian Medicine in any State. This
provision clearly shows that unless a person
possesses a recognised medical qualification as
laid down in the Schedule of the Act and is
enrolled on a State Register or the Central
Register of Indian Medicines, he cannot
1 All] Praveen Kumar Vs. State of U.P.
123
practise Indian Medicine. A similar restriction
is contained in Clause (a) of Section 17(2)
namely, that unless a person possesses a
recognised medical qualification and is enrolled
on a State Register or the Central Register of
Indian medicine, he cannot hold office as
Vaidya, Siddha. Hakim or Physician or any
other office in Government or in any institution
maintained by a local or other authority. SubSection (3) of Section 17 provides for by
mentioning that nothing contained in subsection (2) of Section 17 shall effect the right of
practitioner of Indian Medicine. Section 17(4)
provides that any person who acts in
contravention of any provisions of Sub-section
(2) shall be punished with imprisonment for a
term which may extend to one year or with fine
which may extend to one thousand rupees or
with both.

15. On the parameters of the
provisions quoted above, issue as raised
by petitioner is being examined by this
Court.

16. The scope of Section 15 of
Indian Medical Council Act, 1956 has
been considered before the Apex Court in
the case of Poonam Varma Vs. Ashwin
Patel 1996 (4) SCC 332, wherein the
practitioner registered under Bombay
Homoeopathic
and
Biochemic
Practitioner Act, 1959 proceeded to
administer modern medicine, then Apex
Court took the view, that he was not
qualified to practice Allopathic, and had
entered into prohibited field of Allopathic.
Relevant extract of the said judgement is
as follows:

"31. The impact of the above
provisions is that no person can practice
medicine in any State unless he Possesses
the requisite qualification and is enrolled
as a Medical Practitioner on State Medical
Register. The consequences for the breach
of these provisions are indicated in Subsection

32. If a person practices medicine
without possessing either the requisite
qualification or enrollment under the Act
on any State Medical Register, he
becomes liable to be punished with
imprisonment or fine or both.

32. Apart from the Central Act
mentioned above, there is the Maharashtra
Medical Council Act 7 1965 dealing with the
registration of Medical Practitioners and
recognition of qualification and medical
institutions. Section 2 (d) defines 'Medical
Practitioner' or 'Practitioner' as under :
"Medical Practitioner or Practitioner means a
person who is engaged in the practice of
modern scientific medicine in any of its
branches including surgery and obstetrics, but
not including Veterinary medicine or surgery
or the Ayurvedic, Unani, Homoeopathic or
Biochemic system of medicine

(emphasis supplied)

33. It will be seen that the definition
consists of two distinct parts; the first part
contains
the
conclusive
nature
of
phraseology and the latter part is the
exclusionary
part
which
specifically
excludes Homoeopathic or Biochemic
System of Medicine. A register of
Medical Practitioners is to be maintained
in terms of the mandate contained in
Section 16(1) of the Act Under Subsection (3), a person possessing requisite
qualification and on payment of requisite
fee can apply for registration of his name
in the aforesaid Register.

34. A combined reading of the aforesaid
Acts, namely, the Bombay Homoeopathic
Practitioners Act, 1959, the Indian Medical
Council Act, 1956 and the Maharashtra
Medical Council Act, 1965 indicates that a
person who is registered under the Bombay
Homoeopathic Practitioners Act, 1959 can
124 INDIAN LAW REPORTS ALLAHABAD SERIES
practice Homoeopathy only and that he
cannot be registered under the Indian Medical
Council Act, 1956 or under the State Act,
namely, the Maharashtra Medical Council,
Act, 1965, because of the restriction on
registration of persons not possessing the
requisite qualification. So also, a person
possessing the qualification mentioned in the
Schedule appended to the Indian Medical
Council Act, 1956 or the Maharashtra
Medical Counsel Act, 1965 cannot be
registered as a Medical Practitioner under the
Bombay Homeopathic Practitioners Act,
1959, as he does not possesse any
qualification in Homoeopatnic System of
Medicine. The significance of mutual
exclusion is relevant inasmuch as the right to
practice in any particular system of medicine
is dependent upon registration which is
permissible only if qualification) and that too,
recognised qualification, is possessed by a
person in that System.

35. It is true that in all the aforesaid
Systems of Medicine, the patient is
always a human being. It is also true that
Anatomy and Physiology of every human
being all over the world, irrespective of
the country, the habitat and the region to
which he may belong, is the same. He has
the same faculties and same systems. The
Central Nervous System, the CardioVascular System, the Digestive and
Reproductive systems etc. are similar all
over the world. Similarly, Emotions,
namely, anger, sorrow, happiness, pain
etc. are naturally possessed by every
human being.

36. But merely because the Anatomy
and Physiology are similar, it does not
mean that a person having studied one
System of Medicine can claim to treat the
patient by drugs of another System which
he might not have studied at any stage.
No doubt, study of Physiology and
Anatomy is common in all Systems of
Medicines and the students belonging to
different Systems of Medicines may be
taught physiology and Anatomy together,
but so far as the study of drugs is
concerned, the pharmacology of all
systems is entirely different.

37. an ailment, if it is not surgical, is
treated by medicines or drugs. Typhoid Fever,
for example, can be treated not only under
Allopathic System of medicine, but also under
the Ayurvedic, Unani and Homoeopathic
Systems of Medicine by drugs prepared and
manufactured
according
to
their
own
formulate and pharmacopoeia . Therefore, a
person having studied one particular System
of Medicine cannot possibly claim deep and
complete knowledge about the drugs of the
other System of Medicine.

38. The bane of Allopathic medicine
is that it always has a side-effect. A
warning to this effect is printed on the
trade label for the use of the person
(Doctor) having studied that System of
Medicine.

39. Since the law, under which
Respondent No. 1 was registered as a
Medical Practitioner, required him to practice
in HOMOEOPATHY ONLY, he was under
a statutory duty not to enter the field of any
other System of Medicine as, admittedly, he
was not qualified in the other system,
Allopathy, to be precise. He trespassed into a
prohibited field and was liable to be
prosecuted under Section 15(3) of the Indian
Medical Council Act, 1956. His conduct
amounted to an actionable negligence
particularly as the duty of care indicated by
this Court in DR. LAXMAN JOSHI'S
CASE (SUPRA) WAS BREACHED BY
HIM ON ALL THE THREE COUNTS
INDICATED THEREIN.

41. A person who does not have
knowledge of a particular System of
Medicine but practices in that System is a
Quack and a mere pretender to medical
1 All] Praveen Kumar Vs. State of U.P.
125
knowledge or skill, or to put it differently,
a Charlatan.

17. As per the said judgement right to
practice in particular system of medicine is
dependent
upon
registration
which
is
permissible only if qualification is there, and
that too, if recognised qualification is
possessed by a person in that system. Apex
Court further made it clear that merely
because the subject of Anatomy and
Physiology are similar, it does not mean that a
person having studied one System of
Medicine can claim to treat the patient by
drugs of another System which he might not
have studied at any stage.

18. Thereafter once again before the
Apex Court in the case of Dr. Mukhtiar
Chand and others Vs. State of Punjab and
others reported in (1998) 7 SCC 579,
issue was raised as to whether an
incumbent who is engaged in medical
practice in Indian medicines can he be
permitted to practise in modern medicine
based on the provisions of Drugs and
Cosmetics Rules 1945 vis-a vis the
provisions of 1956 Act and 1970 Act. The
answer has been in negative as follows:

"However, the claim of those who
have been notified by Ste Government
under clause (iii) of Rule 2(ee) of the
Drugs Rues and those who possess
degrees in integrated courses to practice
allopathic medicine is sought to be
supported form the definition of Indian
medicine is Sence 2(e) of the 1970 Act,
referred to above , meaning the system of
Indian medicine commonly known as Ash
tang Ayurvedic, Sridhar or USANi Tabb
whether supplemented or not by such
modern advances as the Central Council
may declare by notification from time to
time. A lot of emphasis is laid on the
words italicized to show that they indicate
modern scientific medicine have been
included in the syllabi. A degree-holder in
integrated courses is imparted not only the
therorticalknowledge of modern scenic
medicine but also training there under, is
the
claim.
We
shall
examine
the
notifications
issued
by
the
Central
Council to ascertain the import of those
words. In its resolution dated 11-3-1987.
The Central Council elucidated the
concept of "modern advances" as follows;

"This meeting of the Central Council
hereby unanimously resolved that in
clause (e) of sub-section (1) of of Section
2 of the 1970 Act of the IMCC Act, ''the
modern advances;, the drug had made
advances under the various branches of
modern scientific system of medicine,
clinical, non-clinical biosciences, also
technological innovations made from time
to time and declare that the courses and
curriculum conducted and recognized by
the CCIM are supplemented by such
modern advances."

On
30-10-1996,
a
clarificatiory
notification was issued, which reads ads
under:

"As per proven under Section 2(1) of
the Indian Medicine Central Council Act,
1970, hereby the Central Council of
Indian
Medicine
notifies
that
"institutionally qualified practitioners of
Indian system of medicine(Ayurvedic,
Sridhar and Unani) are eligible to practice
Indian system of medicine and modern
medicine including surgery, gynecology
and obstetrics based on their training and
teaching which are included in the syllabi
of courses of ISM prescribed by the
Central Council of Indian Medicine after
approval of the Government of India.
126 INDIAN LAW REPORTS ALLAHABAD SERIES

The meaning of the word "modern
medicine" (advances) means advances
made in various branches of modern
scientific medicine, clinical, non-clinical
biosciences,
also
technological
innovations made from time to tome and
notify that the courses and curriculum
conducted and recognized by the Central
Council
of
Indian
Medicine
are
supplemented by such modern advances"

Based on those clarifications, the
arguments
proceed
that
persons
who
registered under the 1970 Act and have done
integrated courses, are entitled to practice
allopathic medicine. In our view, all that the
definition of "Indian medicine" and the
clarifications issued by the Central Council
enable such practitioners of Indian Medicine
id to make use of the modern advances in
various sciences such as radiology report, (Xray), complete blood picture report, lipids
report, ECG, etc. for purposes of practicing in
their own system. However, it any State Act
recognizes the qualification of integrated
course
as
sufficient
qualification
for
registration in the State Medical Register of
that State, the prohibition of Section 15(2)(b)
will not be attracted.

47. A harmonious reading of Section
15 of the 1956 Act and Section 17 of the
1970 Act leads to the conclusion that
there is no scope for a person enrolled on
the State Register of Indian Medicine or
the Central Register of Indian Medicine to
practice modern scientific medicine in
any of its branches unless that person is
also enrolled on a State Medical Register
within the meaning of the 1956 Act.

48. The right to practice modern
scientific medicine or Indian system of
medicine cannot be based on the
provisions of the Drugs Rules and
declaration made there under by State
Government.

"Neither it is averred in the writ
petition nor it has been urged that the
petitioner is enrolled on a State Medical
register as defined in Section 2(k) of
Indian Medical Council Act, 1956 and,
therefore, he is not entitled to practise
modern scientific medicine or to prescribe
allopathic drugs. Learned counsel has also
referred to certain provisions of Drugs
and Cosmetics Rules but in our opinion
they are wholly irrelevant as they deal
with import manufacture, distribution and
sale of drugs and they neither confer nor
deal with the right to practise medicine."

19. The provisions of Indian Medicine
Central Council Act, 1970 under the scheme
of things provided for show that a person
holding a qualification recognised by the
aforesaid Act in the system of Indian medicine
commonly known as Ashtang. Ayurveda,
Siddha or Unani Tibb is entitled to practise
only in the discipline in which he has acquired
the qualification. The Act does not authorise
him to practice in Allopathy system of
medicine. The right to practice modern
scientific medicine or Indian system of
Medicine can not be based on the provisions
of Drug Rules and for practising modern
medicine, one has to have the qualifications
provided for under 1956 Act, alongwith
enrolment on State Medical Register.

20. Contrary to the said view, as
quoted above the most surprising feature of
present writ petition is that petitioner is
placing reliance on the judgment of the Apex
Court, in the case, State of Haryana vs. Phool
Singh, 1998-Laws (SC)-7-81, decided on
20.7.1998 wherein Apex Court has held as
follows:
1 All] Praveen Kumar Vs. State of U.P.
127

"(1) For the last few days we have
heard a batch of Civil matters in which
sub-clause (iii), clause (ee) of Rule 2 of
the The Drug and Cosmetics Rules 1945 has
been the subject matter of debate in its widest
spectrum. Prima facie conclusions drawn
therefrom make us feel that the judgment of
the High Court cannot be faulted with. The
respondent does come within the definition
of a registered medical practitioner entitled to
keep allopathic medicines by virtue of his
degree and registration in the state of Bihar.
We thus find nothing to interfere in this
appeal. The appeal is therefore dismissed."

21. Bare perusal of the said judgment
would go to show, that on prima facie basis
conclusions drawn by High Court has not
been faulted with. Same Bench comprising
of Hon'ble M.M. Punchi, C.J., and K.T.
Thomas and S.M. Quadri J., based on
hearing that is referred to in the judgment
itself by mentioning that for last few days we
have heard batch of Civil matters, wherein
sub-clause (iii), clause (ee) of Rule 2 has
been subject matter of debate in its widest
spectrum, subsequent to the same have
exhaustively dealt with the issue on
8.10.1998, while deciding the case of Dr.
Mukhtar Chandra (Supra) and therein
altogether different view, has been taken,
then for all practical purposes,view as
expressed on prima-facie basis in the case of
State of Haryana vs. Phool Singh, as relied
upon by petitioner, has to be accepted as
virtually over-ruled. Subsequent reasoned
judgment, by the same Bench will hold the
field, and accordingly petitioner, cannot get
any benefit or advantage of the judgment and
order dated 29.7.1998, in the case of State of
Haryana vs. Phool Singh.

22. As lines were repeatedly being
crossed by incumbents, who were not
authorised to practice allopathic branch of
medicine, on 25.04.2000 the Apex Court
in the case of D.K. Joshi Vs. State of U.P.
reported in 2000 (5) SCC 80 came heavily
by issuing following directions:

(i) All district Magistrates and the Chief
Medical officers of the State shall be directed
to identify, within a time limit to be fixed by
the Secretary, all unqualified/ unregistered
medical practitioners and to initiate legal
actions against these persons immediately;

(ii) Direct all District Magistrates
and the Chief Medical Officers to monitor
all legal proceedings initiated against such
persons;

(iii) The Secretary, Health and Family
Welfare Department shall give due publicity
of the names of such unqualified/ unregistered
medical practitioners so that people do not
approach such persons for medical treatment.

(iv) The Secretary, Health and
Family Welfare Department Shall monitor
the action taken by all District Magistrates
and all Chief Medical Officers of the
State and issue necessary directions from
time to time to these officers so that such
unauthorized persons cannot pursue their
medical profession in the State

23. This Court also had an occasion to
consider whether the persons holding
degrees in Indian Medicines such as
Ashang, Ayurved, Siddha, Unani Tibb are
authorized to practice Allopathic system of
medicines in the case of Dr. Mehboob Alam
vs. State of U.P. and Ors. (06.09.2001)
W.P.(Cr.) 5896 of 2000 reported in [(2001)
2 JIC 774 (All)] and after analysis of
provisions of Indian Medical Council Act,
1956 took the view that the medicine means
modern scientific medicine for all its
branches and includes surgery, and same is
entirely different from the Indian Medicine
and only a person who possess the
qualification
enumerated
in
the
first
schedule of this order which have been
128 INDIAN LAW REPORTS ALLAHABAD SERIES
recognized and entitled to be enrolled on
any State register, can only practice. A
person holding qualification recognised
under 1970 Act, does not authorise him to
practice Allopathy system of medicine.

24. This Court once again on issue
being raised as to whether incumbents who
has got to his credit degree in Indian
Medicine can he be permitted to practice in
modern medicine, proceeded to consider the
matter at length in the case of Rajesh Kumar
Srivastava (II) Vs. A.P. Verma, reported in
2004 (2) ESC (All) 960, and repelled the
submission, so advanced.

25. Division Bench of this Court once
again reiterated the same principal in the
case of Ravinder Kumar Goel vs. State of
U.P. 2004 (2) ESC 976, that a person with
Ayurvedic and Unani qualification, if is
practising Allopathic, same is illegal.

26. The field of practice thus stands
demarcated i.e. the doctors enrolled in
their branch of medicine should not be
allowed to practice in any other branch of
medicine of which he has not acquired
knowledge or has little knowledge. Under
the scheme of things provided for, there is
mutual exclusion i.e. one is not allowed to
practice in any other branch of medicine
of which he has not acquired knowledge.

27. Petitioner has next proceeded to
place
reliance
on
the
Government
Notification dated 25.11.1992, issued by
Government
of
Maharashtra,
under
Maharashtra Medical Practitioners Act,
1961, as well as on the notification dated
22.01.2004, issued by Central Council of
Indian Medicine.

28. Petitioner will not succeed on this
score also, for the reason that the provisions
of Maharashtra Medical Practitioner Act,
1961, cannot be pressed in reference of
practice of modern medicine in the State of
U.P. Coupled with this, the circular as has
been issued, the same has been interpreted by
Kerela High Court in the case of National
Integrated Medical Association and another
Vs. State of Kerala WA No. 1260 of 2006
(A) decided on the 12.12.2006 wherein the
High Court of Kerela at Ernakulam held that
the modern advances mentioned in Section
2(e) of the Act of 1970 can only be advanced
in Ayurveda, Siddha and Unani and not
Allopathic medicine. By virtue of Section
15(2) (b) of the Indian Medical Council Act,
1956 the persons having the prescribed
qualifications included in the schedules alone
are eligible to practice modern medicine. The
words
"modern
medicine"
would
be
referable to the modern advances made in the
respective fields of Ayurveda, Siddha and
Unani. The Kerela High Court followed
Mukhtar Chand Vs. State of Punjab AIR
1999 SC 468. In support of the observations
made by it and reiterated that modern
advances mentioned in Section 2(3) of the
Act of 1970 cannot be interpreted to mean
Allopathic Medicines.

29. Against the judgment of Kerela High
Court dated 12.12.2006, Special Leave to
Appeal NO.6116 of 2007 had been filed, and
the same has also been dismissed on 23.7.2007.
Thereafter,
Central
Council
of
Indian
Medicine, taking note of judicial proceedings in
its 158th Meeting dated 28.6.2010 has decided
to with all earlier resolutions. Madras High
Court also in Writ Petition No.13696 of 2009,
D.J. Kaleem Nawaz, BUMS vs. State of
Tamilnadu, decided on 29.10.2010, wherein
prayer was made to the similar effect, not to
interfere in administering allopathic medicine,
very clearly ruled that such a prayer cannot be
accorded and clarifications issued by Central
Council of Indian Medicine are of no
1 All] Praveen Kumar Vs. State of U.P.
129
consequence, wherein it has been mentioned
that practitioners of Indian System of Medicine
who practised modern scientific system of
medicine, allopathic medicine are protected
under Section 17(3)(b) of 1970 Act is not
correct as provisions of 1956 Act have been
ignored.

30. This Court, also approves of the
same view, and further clarifies that a
statutory
body
created
under
Indian
Medicine Central Council Act, 1970 such as
Central Council of Indian Medicine, at the
point of time when it proceeds to exercise its
statutory authority the same has to be in
connection with "Indian Medicine" and not
at all beyond the same. Words "Modern
advances" has to be contextually interpreted
i.e "Modern advances" in the field of
Ayurveda, Sidha and Unani and not at all in
context of "Modern Medicines". In the
context of, practitioners of "Indian Medicine"
the practitioners of "Indian Medicine" can
make use of modern advances in various
sciences such as radiology report (X-ray),
complete blood picture report, lipids report,
ECG etc for practising in their own system.
This does not mean that practitioners of
"Indian Medicine" would start acting as
Radiologist/Pathologist/Cardiologist.
Only
for the purposes of practising "Indian
Medicine" they can make use of the reports
and this will not at all authorize the
practitioners of "Indian Medicine" to
administer and prescribe modern medicines
(allopathic)"

31. Recently, the Apex Court in the
case of Bhanwar Kanwar Vs. R.K. Gupta
and another reported in (2013) 4 SCC 252
has
taken
the
view
that
wherein
unauthorized
medical
treatment
is
administered, same is unfair trade practice
and administering allopathic medicine by
person who is qualified in Ayurvedic
medicine cannot be approved of. Apex
Court in the facts of case, enhanced the
compensation amount from Rs.5 lacs to
Rs. 15 lacs.

32. In the said judgment benefit has
been sought to be taken of the Government
Order dated 24.02.2003. Qua the same, Apex
Court has mentioned that in connection with
some cases, the High Court Allahabad has
issued direction to take action against the
quacks who are practising Allopathic
medicine but not registered with Medical
Council.