IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WP(C).No. 11889 of 2006(M) -------------------------- PETITIONER(S): --------------- MOHAMMED KABEER ASLAMI, AGED 34 YEARS, S/O. MOIDEENKUTTY, KUNDAMCHOLA, PUTHOOR, EDAPPATTA, AKKARAPPURAM P.O., MALAPPURAM DISTRICT. BY ADV. SRI.C.A.NAVAS SRI.P.M.ABDUL JALEEL RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE REGISTRAR, TRAVANCORE COCHIN MEDICAL COUNCIL, RED CROSS ROAD, THIRUVANANTHAPURAM. 3. THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI. 4. THE DIRECTOR OF HOMEOPATHY, STATE OF KERALA, THIRUVANANTHAPURAM. 5. THE SUB INSPECTOR OF POLICE, PERINTHALMANNA POLICE STATION. 6. ABOOBACKER, SECRETARY, HAHNEMANN ASSOCIATION OF HOMEOPATH, MALABAR AREA, MALAPPURAM DISTRICT. ADV. SRI.N.RAGHURAJ, STANDING COUNSEL, TCMC - R2 SRI.A.DINESH RAO FOR R3 GOVT.PLEADER SRI.ARAVIND KUMAR BABU-R1,R4 & R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON 21/01/2010 DELIVERED THE FOLLOWING: W.P.C.NO.11889 OF 2006 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: Photostat copy of the relevant provision of Homeopathy Central Act 1973. Ext.P2: The photostat copy of the mark list issued by Devghar Vidyapith Bihar, No.Nil dated 05.07.1996. Ext.P3: The photostat copy of the Diploma Certificate issued by Devghar Vidyapith Bihar, No.Nil dated 19.11.1996. Ext.P4: The photostat copy of the registration certificate No.43336 dated 31.01.1997. Ext.P5: Photostat copy of the participation certificate No.A-4572 issued by the Pranic Healing foundation, Kerala. Ext.P6: Photostat copy of the participation certificate No.B-0399 issued by the Pranic Healing foundation, Kerala. Ext.P7: Photostat copy of the participation certificate No.C-0341 issued by the Pranic Healing foundation, Kerala. Ext.P8: Photostat copy of the participation certificate No.D-086 issued by the Pranic Healing foundation, Kerala. Ext.P9: Photostat copy of the certificate dated 20.03.2006. Ext.P10: The photostat copy of the certificate of the registration No.024022 dated 24.08.2003. Ext.P11: The photostat copy of the registration certificate No.114/TTH dated 08.10.2004. Ext.P12: The photostat copy of the judgment dated 21.05.1997 in O.P.No.11040/90 of the Honourable High Court. Ext.P13: The photostat copy of the judgment dated 09.03.2006 in W.A.No.804 of 1998 of the division bench of the Honourable High Court. Ext.P14: The photostat copy of the petition No.Nil dated 24.01.2006. RESPONDENTS' EXHIBITS: NIL C.T. RAVIKUMAR, J. --------------------------------------------- W.P.(C) NO. 11889 OF 2006 --------------------------------------------- Dated this the 21st day of January, 2010 JUDGMENT The petitioner, who claims to be a practitioner in Homeopathy, filed this Writ Petition mainly with the following prayers:- (I) To call for the records relating to Exhibit.P1 to P14 and to issue a writ of mandamus or any other appropriate writ direction or order directing the 6th respondent not to interfere in the homeopathic practice of the petitioner. (II) To issue a writ of mandamus or any other appropriate writ, direction or order to the respondents declaring that the petitioner is eligible to practice homeopathy in anywhere in the state of Kerala untrammeled by any obstruction from the respondents. 2. Before considering whether the petitioner is entitled to the aforesaid reliefs, it is only appropriate to refer to the various contentions raised by the petitioner in a bid for establishing his right to practise Homeopathy. According to the petitioner, as on 25.4.2006, the date of filing of this Writ Petition, he was having more than 15 years of practice of Homeopathy. It is the case of the petitioner that he had acquired D.H.M.S from Devghar Vidyapith Bihar, Patna only in December 1996 and even much prior to that he had been practising Homeopathy. According to him, there was no impediment for such practice in Homeopathic system of W.P.(C) NO.11889 of 2006 2 medicine for the reason that there was no ban in Malabar area restricting practice for skilled Homepathic practitioners. To fortify his contention relating that right, the petitioner placed reliance on Section 15 (3) (c) of the Homeopathy Central Council Act, 1973 for short ‘Central Act’ only. It is further contended that there cannot be any impediment at all for his practice in Homeopathic system of medicine in view of Exts. P2 to P4 and he is even entitled to continue practice of Homeopathy solely based on his experience. 3. With respect to the contention of the petitioner regarding the right to practise Homeopathy based on the provisions under Section 15 (3) (c) of the Central Act, I am afraid it cannot be countenanced. Section 15 (3) (c) of the Central Act reads thus: “the right of a person to practise Homeopathy in a State in which on the Commencement of this Act, a State Register of Homeopathy is not maintained if, on such commencement, he has been practising Homeopathy for not less than five years” (emphasis supplied) 4. Admittedly, the petitioner was only 34 years of age as on 25.4.2006 i.e., the date of filing of this Writ Petition. The Central Act came into force on 1.8.1974 and on that day the petitioner was only a W.P.(C) NO.11889 of 2006 3 suckling. Therefore, the question of application of Section 15 (3) (c) will not arise at all in the case of the petitioner. The admitted age of the petitioner would make it impossible to comprehend with his contention that as on 25.4.2006, he was having more than 15 years of practice of Homeopathy. Admittedly, the petitioner had acquired D.H.M.S qualification only in the year 1996. According to him, he had enrolled (enlisted) under State Board of Homeopathic Medicine, Bihar only on 31.1.1997. However, according to him, he had been practising Homeopapthy even prior to 1997. The petitioner had failed to bring to my notice any provision under the Central Act or any other provision of law which permitted such practice even prior to the acquisition of qualification in the case of a person like the petitioner. The petitioner cannot take shelter under Exts.12 and P13 judgments to justify his illegal practice. Ext.P12 would reveal that the benefit arising out of the said judgments is available only to those category of Homeopathic practitioners who fulfilled the conditions provided under Section 15 (3) (c) i.e., those Homeopathic practitioners who were having not less than 5 years practice of Homeopathy as on 1.8.1974. 5. In the Writ Petition, a counter affidavit has been filed by the second respondent. In the counter affidavit, it has been categorically stated that on the strength of Ext.P4 certificate, the petitioner is not entitled W.P.(C) NO.11889 of 2006 4 for registration in the state of Kerala. The claim of the petitioner to practise in Homeopathic system of medicine based on the provision under Section 15 (3) (c) of the Central Act was rightly refuted thereunder. Paragraph 5 of the counter affidavit would reveal that the contention of the petitioner that at the time of commencement of the Central Act, no State Register was maintained in the state of Kerala, was also refuted. It has been stated therein that at the time of commencement of the Central Act, State Register was being maintained as per the provisions of the Travancore Cochin Medical Practitioners Act 1953. The contention of the petitioner to substantiate his right to practise made in paragraph 6 of the Writ Petition on the ground that he was possessing certificate issued by Pranic Healing Foundation, Kerala was also refuted by the second respondent. In this context, the relief sought for by the petitioner assumes relevance. He seeks for a declaration that he is entitled to practise Homeopathy. In the counter affidavit, it has been contended that Pranic Healing Foundation is not an approved system of medical practice under any of the statutory councils in India, namely the Indian Medical Council, Indian Medicines, Central Council and Homeopathic Central Council. At any rate, possession of Exts.P5 and P8 certificates cannot confer or create any right on the petitioner to practise Homeopathy. In the wake of the said circumstances expatiated earlier, the entitlement of the petitioner to the reliefs sought for is to be examined. With respect to the first relief, there W.P.(C) NO.11889 of 2006 5 cannot be no doubt that it cannot be entertained at all. The petitioner is seeking a relief of issuance of a writ of mandamus against the sixth respondent. No ground has been established to maintain such a writ against the sixth respondent who is only a private individual and there is absolute absence of any contention that he has been discharging a public duty. In such circumstances, there cannot be any question of issuing a writ of mandamus. The second relief is also absolutely confusing. The former part of it contains a prayer for issuance of writ of mandamus whilst the latter part carries the prayer for a declaration that he is entitled to practise Homeopathy. Whatever that be, in view of the failure on the part of the petitioner to establish his right to practice and in view of the specific contention of the second respondent, as discussed earlier, a declaration that the petitioner is entitled to practice Homeopathy anywhere in the State of Kerala untrammeled by any obstruction from the respondents cannot be granted especially taking into account the fact that he is not having registration in the State of Kerala. In short, the Writ Petition is devoid of merits and it is liable to be dismissed. However, I may hasten to add that in view of the claim of the petitioner that Exts.P2 to P4 are sufficient to earn registration in the State of Kerala and to practise Homeopathy in the state it will be open to him to approach the second respondent for getting such registration in the state of Kerala so as to practice in Homeopathy. The originals of Exts.P2 to P4 were produced by the petitioner pursuant to W.P.(C) NO.11889 of 2006 6 a direction to that effect as per order dated 23.9.2009. A perusal of those documents suggests that they require scrutiny by the second respondent. In case the petitioner fails to approach the second respondent for such relief within 3 weeks from the date of receipt of copy of this judgment or if the second respondent is found him not qualified to practise Homeopathy in the state of Kerala, the second respondent shall take appropriate action as contemplated under the Central Act on the expiry of the said period. Subject to the above, the Writ Petition is dismissed. (C.T. RAVIKUMAR) JUDGE spc W.P.(C) NO.11889 of 2006 7