NAWAB KHAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The petitioner Nawab Khan has filed this writ petition with the following prayers :

(2.) The petitioner's case is that he has obtained a degree of "Ayurved Ratan" from Hindi Sahitya Sammelan, Prayag which is recognised all over the country. The petitioner applied for registration to the Government Ayurvedic and Unani Chikitsa Board under the Bihar Development of Ayurvedic and Unani System of Medicines Act, 1951, and was registered by the said Board (Annexure-1 to the writ petition). The U. P. Indian Medicine Act. 1939. provides for registration of Medical Practitioner and grant of qualified practitioner Certificate under Sections 27 and 30 of the Act. The petitioner alleges that Indian Medicine Central Council Act, 1970 (Act No. XLIII of 1970) was enacted by the Parliament to provide for a constitution of a Central Council of Indian Medicines and the maintenance of the Central Register of Indian Medicines and for matters connected therewith. Section 17 (3) of the Act provide that a medical practitioner of Indian Medicines enrolled on a State Register of Indian Medicines, will have right to practice in Indian Medicines in any State and will carry the State privilege. The petitioner alleges that entry 25 of List III of Schedule VII of the Constitution of India provides for registration on legal medical and other professions, Act No. 48 of 1970 is passed by Central Legislature after taking sanction of President of India and, therefore, the provisions of the said Act in so far as they are in consistence with any State Act, enacted prior to it will override the provision of the State Act. The provisions of U, P. Act No. 10 of 1939 in so far as they disentitle the petitioner from practising Indian Medicine in the State of U. P. are, therefore, inconsistent with Section 17 of the Act No. LXIII of 1970. The petitioner alleges that there are several medical practitioners who are not qualified at all but are registered under Section 50 of the U. P. Act No. 10 of 1939 on the ground of long experience of practice belonging to indigenous system registered in the year 1963-64. The petitioner alleges that he has a qualification of 'Ayurved Ratna'. The discrimination between the petitioner and the persons registered under Section 50 of the Act No. 10 of 1939 is, therefore, without any reasonable basis and is, therefore, violative of Article 14 of the Constitution of India. The petitioner alleges that recently in the month of May and June, 1992 respondent Nos. 2 and 3 and the Officer subordinate to them conducted raids on the medical clinics of the petitioner and have warned the petitioner not to carry on medical practice. The respondent No. 3 had started compaign to take action to prosecute each and every medical practitioner of Indian Medicines either registered or unregistered and has threatened the petitioner and other registered medical practitioners to stop their practice otherwise they will be prosecuted. The petitioner keeps tethoscope, Thermometer, B. P. Instrument and other simple and primary instruments of diagnosis. These instruments are also required to disgrace in Indian Medicine system--without these instruments it is not possible to diagnose and treat the patients. The petitioner alleges that respondent Nos. 2, 3 and 4 cannot have any objection for the possession of these instruments by the petitioner but the respondents are threatening the petitioner and are restraining him to keep those instruments. The action of the respondent Nos. 2 to 4 in restraining and threatening the petitioner to practice Indian Medicine, is absolutely illegal, arbitrary and violative of Articles 14 and 19 (1) (b) of the Constitution of India. The petitioner alleges that he has been practising at district Bulandshahr and rendering service at his residence without any complaint of any member of public.

(3.) This Court by its order dated 9th November. 1998 directed the Senior Superintendent of Police, Allahabad, to enquire the genuineness of the certificate of the petitioner and submit a report. Accordingly the Senior Superintendent of Police, Allahabad, has sworn an affidavit before this Court in which he has stated in paragraphs 2 and 3 that the certificate of the petitioner has been certified by the Examination Controller. Hindi Sahitya Sammelan, Prayag and is a genuine document. In paragraph 8 of the affidavit, the Senior Superintendent of Police has reported that on a perusal of the Indian Medicine Central Act, 1970, it is clear that Hindi Sahitya Sammelan has no recognition under Statute after 1967 for issuing the degree of 'Vaidya Visharad' and 'Ayurved Ratna'. The Senior Superintendent of Police has requested this Court in paragraph 9 of the affidavit for issue of show cause notice to the Hindi Sahitya Sammelan, Prayag to explain under what legal authority it is Issuing the certificate which does not have statutory recognition.