Present: Mr. Peeush Gagneja Advocate Vs. Board of Ayurvedic and Unani System of Medicine and Another - Court Judgment

Rs.No.1812 of 2012 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1812 of 2012 (O&M) Date of Decision: May 13, 2014 Madan Lal ..Appellant Versus Board of Ayurvedic and Unani System of Medicine and another ..Respondents CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH1 Whether Reporters of the local papers may be allowed to see the judgment?.

2) To be referred to the Reporters or not?.

3) Whether the judgment should be reported in the Digest?.

Present: Mr.Peeush Gagneja, Advocate, for the appellant.

Paramjeet Singh, J.

C.M.No.4979-C of 2012 For the reasons indicated in the Civil Misc.

application, the same is allowed.

The appellant is allowed to make good the deficiency in court fee in the appeal.

C.M.No.4980-C of 2012 Having heard learned counsel for the appellant and for the reasons indicated in the Civil Misc.

application, the same is allowed.

Delay of 27 days in refiling the appeal is condoned.

Kumar Virender 2014.05.20 16:15 I attest to the accuracy and integrity of this document Rs.No.1812 of 2012 (O&M) 2 R.S.A.No.1812 of 2012 Instant regular second appeal has been preferred by the appellant/plaintiff against the judgment and decree dated 20.05.2010 passed by learned Civil Judge (Junior Division).Abohar whereby suit for declaration and permanent injunction has been dismissed, as well as, against the judgment and decree dated 16.09.2011 passed by learned Additional District Judge, Ferozepur whereby appeal preferred by the appellant/plaintiff has also been dismissed.

For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of fiRs.instance.

The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced.

However, brief facts relevant for disposal of this second appeal are that plaintiff filed a suit for declaration to the effect that plaintiff obtained a decree of Ayurvedic Rattan from Hindi Sahitya Samelan, Prayag in the year 1973.

He applied to defendant no.1 for registration under Punjab Ayurvedic and Unani Practitioner Act, 1963 (hereinafter referred to as the “Act”.).but the same was refused.

Thereafter, plaintiff filed appeal under Section 18 of the Act, which was decided in his favour in the year 1979 and he was enrolled/registered as registered medical practitioner.

His registration was renewed from time to time and lastly it was renewed in the year 1995.

It was pleaded that defendant no.1 served a show cause notice dated 18.02.2002 upon the plaintiff alleging that it has received letter from defendant no.2 intimating that examination of Hindi Sahitya Samelan Kumar Virender 2014.05.20 16:15 I attest to the accuracy and integrity of this document Rs.No.1812 of 2012 (O&M) 3 Prayag was valid upto the year 1967.

The plaintiff filed reply to the show cause notice, but the same was not considered and defendant no.1 cancelled registration of the plaintiff vide order dated 03.04.2002 which is illegal, without jurisdiction, against the principles of natural justice and un-operational upon the rights of the plaintiff.

It was further pleaded that Section 17 of Indian Medicine Central Council Act came into enforce on 01.10.1976 and as per the said Section, the persons who are registered as Medical Practitioner at the time of commencement of this Act were saved and plaintiff was deemed to be enrolled much before enforcement of Section 17 of the Indian Medicine Central Council Act.

It was further pleaded that if degree of the plaintiff was valid only upto the year 1967, there was no question of enrollment of the plaintiff by defendant no.1 in the year 1979.

Now, after a lapse of so many yeaRs.the defendants are estopped from de-recognition of the decree of the plaintiff and removing him from his enrollment.

Upon notice, defendants appeared and filed separate written statements.

Defendant no.1 in its written statement took various preliminary objections.

On merits, it was pleaded that in view of the Central Legislation and in view of the decision of the Hon'ble Supreme Court, registration /enrollment and renewal of the plaintiff by defendant no.1 were not in accordance with law, rules and provisions of Central Legislation.

Plaintiff is not qualified medical practitioner and his medical qualification is unrecognized and bogus.

The degree of Vaid Visharad and Ayurved Ratna awarded by Hindi Sahitya Samelan, Allahabad was valid Kumar Virender 2014.05.20 16:15 I attest to the accuracy and integrity of this document Rs.No.1812 of 2012 (O&M) 4 only upto 1967 and not thereafter, as per Second Schedule to the Indian Medicine Central Council Act, 1970.

The plaintiff, who obtained degree after 1967 from Hindi Sahitya Samelan, is not entitled to practice Indian Medicine, as the said degree has not been recognized under the Indian Medicine Central Council Act, 1970.

Thus, name of the plaintiff was rightly removed from the State register.

Defendant no.2 in its written statement took preliminary objections that the civil Court has no jurisdiction to try the suit.

The matter has already been decided by the Hon'ble Supreme Court in Delhi Pradesh Registered Medical Practitioners versus Director of Health Services, 1997 (II) Supreme Court Cases, 687, wherein it has been held that qualification of “Vaid Visharad and Ayurved Ratna”.

awarded by Hindi Sahitya Samelan Prayag from 1932 to 1967 only are recognized medical qualifications and not thereafter.

Therefore, the suit of the plaintiff, who obtained degree in 1973, is liable to be dismissed.

On merits, it was pleaded that plaintiff is not a qualified medical practitioner and his medical qualification is unrecognized and bogus.

The plaintiff, who has obtained degree from Hindi Sahitya Samelan in the year 1973 is not eligible to practice medicine after enforcement of Section 17 of the Indian Medicine Central Council Act.

Plaintiff filed replication to the written statements denying the averments in the written statements and reiterating the averments in the plaint.

On the basis of the pleadings of the parties, the Court of fiRs.Kumar Virender 2014.05.20 16:15 I attest to the accuracy and integrity of this document Rs.No.1812 of 2012 (O&M) 5 instance framed the following issues:- “1.

Whether plaintiff is entitled to declaration prayed for?.

OPP2 Whether plaintiff is entitled to permanent injunction prayed for?.

OPP3 Whether this Court has no jurisdiction to entertain the present suit?.

OPD4 Whether suit is bad under the provisions of Section 113 CPC?.

OPD5 Whether suit is bad for non-joinder of necessary and proper parties?.

OPD6 Whether plaintiff has no locus standi and cause of action to file the present suit?.

OPD7 Whether plaintiff is estopped by his act and conduct from filing the present suit?.

OPD8 Whether suit is not properly valued for the purpose of Court fee and jurisdiction?.

OPD9 Whether suit is bad for want of notice under Section 80 CPC?.

OPD10 Relief.”

.

The Court of fiRs.instance after perusal of the evidence led by the parties dismissed the suit of the plaintiff vide judgment and decree dated 20.05.2010.

Against that, plaintiff preferred an appeal, which has also been dismissed by the lower appellate Court vide judgment and decree dated 16.09.2011.

Hence, this second appeal.

Learned counsel for the appellant submitted that following substantial questions of law, formulated in para no.15 of the grounds of second appeal, arise for consideration:- “i) Whether the appellant/plaintiff is entitled to get the Kumar Virender 2014.05.20 16:15 I attest to the accuracy and integrity of this document Rs.No.1812 of 2012 (O&M) 6 protection under sub-section (3) of Section 17 of the Indian Medicine Central Council Act, 1970?.

ii) Whether the provisions of the Central Act are applicable or not to the persons enrolled before coming into operation of the Indian Medicine Central Council Act, 1970?.

iii) Whether the judgments and decrees of the Courts below are the result of misreading and mis-appreciation of evidence oral as well as documentary?.

iv) Whether the judgments and decrees are based on conjectures and surmises and are liable to be set aside?.

Learned counsel for the appellant contended that judgments of both the Courts below are against law and result of non-reading of material evidence on record, as such, are perverse.

I have considered the contention raised by learned counsel for the appellant.

Both the Courts below have recorded findings after appreciating the evidence on record.

The findings of fact are recorded by lower appellate Court in para nos.11, 12 and 13 of its judgment which read as under:- “11.

Undisputedly, the plaintiff obtained degree of Ayurvedic Rattan from Hindi Sahitya Samelan, Prayag in the year 1973.

It was contended by the learned appellant's counsel that plaintiff obtained this degree of Ayurvedic Rattan from Hindi Sahitya Samelan, Prayag much before enforcement of Section 17 of the Indian Medicine Central Council Act, 1970.

Therefore, he is protected and is entitled to continue to practice as an exception has been claused under Section 17(3) of the said Act.

Kumar Virender 2014.05.20 16:15 I attest to the accuracy and integrity of this document Rs.No.1812 of 2012 (O&M) 7 12.

The aforesaid contention of the learned appellant's counsel is devoid of merit in view of the law laid down by the Hon'ble Apex Court in case titled as Rajasthan Pradesh V.S.Sardarshahar & Anr.

versus Union of India and Ors., AIR2010SC).221.

Appeals were filed by the different States before the Hon'ble Supreme Court.

One appeal arising of SLP (C) 21043 of 2008 has been filed by CCIM challenging order of the Hon'ble High Court to the extent that a persons who acquired the certificate, degree or diploma from Hindi Sahitya Sammelan Prayag between 1967 and 1.10.1976 have also been permitted to practice.

This appeal was accepted by the Hon'ble Apex Court and it has been held that a person who acquired the certificate, degree or diploma from Hindi Sahitya Sammelan Prayag after 1967 is not eligible to indulge in any kind of a medical practice.

It was further held that Hindi Sahitya Sammelan has got no recognition from the Statutory Authority after 1967.

Relevant paragraph of the judgment reads as under:- “43.

At the cost of repetition, it may be pertinent to mention here that in view of the above, we have reached to the following inescapable conclusions :- (I) Hindi Sahitya Sammelan is neither a University/Deemed University nor an Educational Board.

(II) It is a Society registered under the Societies Registration Act.

(III) It is not an educational institution imparting education in any subject inasmuch as the Ayurveda or any other branch of medical field.

(IV) No school/college imparting education in any subject is affiliated to it.

Nor Hindi Sahitya Kumar Virender 2014.05.20 16:15 I attest to the accuracy and integrity of this document Rs.No.1812 of 2012 (O&M) 8 Sammelan is affiliated to any University/Board.

(V) Hindi Sahitya Sammelan has got no recognition from the Statutory Authority after 1967.

No attempt had ever been made by the Society to get recognition as required under Section 14 of the Act, 1970 and further did not seek modification of entry No.105 in II Schedule to the Act, 1970.

(VI) Hindi Sahitya Sammelan only conducts examinations without verifying as to whether the candidate has some elementary/basic education or has attended classes in Ayurveda in any recognized college.

(VII) After commencement of Act, 1970, a person not possessing the qualification prescribed in Schedule II, III & IV to the Act, 1970 is not entitled to practice.

(VIII) Mere inclusion of name of a person in the State Register maintained under the State Act is not enough making him eligible to practice.

(IX) The right to practice under Article 19(1)(g) of the Constitution is not absolute and thus subject to reasonable restrictions as provided under Article 19 (6) of the Constitution.

(X) Restriction on practice without possessing the requisite qualification prescribed in Schedule II, III & IV to the Act, 1970 is not violative of Article 14 or ultra vires to any of the provisions of the State Act.”

.

13.

The plaintiff, who has obtained degree from Hindi Sahitya Sammelan, Prayag in the year 1973, is thus not eligible to indulge in any medicine practice in view of the aforesaid decision of the Hon'ble Apex Court.

Thus, the learned trial Court has rightly decided all the issues and Kumar Virender 2014.05.20 16:15 I attest to the accuracy and integrity of this document Rs.No.1812 of 2012 (O&M) 9 rightly dismissed the suit of the plaintiff.....”

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Concurrent findings of fact have been recorded by both the Courts below that plaintiff, who has obtained degree from Hindi Sahitya Sammelan, Prayag in the year 1973 is not eligible to indulge in any medicine practice in view of decision of Hon'ble Supreme Court in Rajasthan Pradesh V.S.Sardarshahar's case (supra).Learned counsel for the appellant could not show that the said findings are perveRs.or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record.

Consequently, said findings of fact do not warrant interference in second appeal.

No question of law, much-less substantial question of law, as alleged, arises for adjudication in this second appeal.

No other point has been urged.

Dismissed in limine.

May 13, 2014 [Paramjeet Singh].vkd Judge Kumar Virender 2014.05.20 16:15 I attest to the accuracy and integrity of this document