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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7846 OF 2014
ALONG WITH
WRIT PETITION NO.7847 OF 2014
Indian Medical Association,
Pune Branch .. Petitioner
(in both petitions)
Vs.
State of Maharashtra & Ors. .. Respondents
(in both petitions)

Mr.S.U.Kamdar, Sr.Advocate a/w Mr.Chirag Kamdar i/b Bimal
Rajasekhar for the Petitioner.
Mr.Sunil Manohar, Advocate General a/w Mr.A.B.Vagyani, Government
Pleader and Mrs. M.P.Thakur, AGP for Respondent Nos.1 to 3 and 6.
Mr.Makarand D. Adkar a/w Mr.Shrikrishna R. Ganbavale i/b Ms. Yogita
R. Singh for the Respondent No.4 in W.P.No.7846/2014.
Mr.Pralhad Paranjape a/w Dr.Arun Mishra i/b Aafrin Shaikh for

Respondent No.4 in W.P.No.7847/2014.
Mr.A.V.Anturkar, Senior Advocate a/w Mr.Abhay Anturkar i/b Mr.Rui

Rodrigues for Respondent No.5 in W.P.No.7846/2014.
Mr.Pankaj Sawant, Senior Advocate i/b Mr.Abhijeet Desai and Vrushali
Maindad for Respondent No.5 in W.P.No.7847/2014.
Mr.Rahul Nerlekar for Respondent No.7 in both the Petitions.
Mr.A.A.Kumbhakoni, Senior Advocate i/b Mr.Shrikant V. Gavand a/w

Mr.Avinash Fatangare & Savita M. Yadav for Respondent No.9 in
W.P.No.7846/2014.
Mr.Ramchandra Yadav a/w Abu Khan i/b Legal Vizz for Respondent
No.9 in W.P.No.7847/2014.
Mr.Harshad Bhadbhade for Respondent No.10 in W.P.No.7846/2014.
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Mr.Ajit S. Karande for Respondent No.11 in W.P.No.7846/2014 and for
Respondent No.10 in W.P.No.7847/2014.
–
CORAM : A.S. OKA & A.S.GADKARI, JJ
DATED : 24TH DECEMBER 2014
ORAL ORDER : ( PER A.S. OKA, J)
. We have heard the learned counsel representing the parties
on the prayer for grant of interim relief. In both the Petitions, in
substance, the prayer for interim relief is for stay of operation of the
amendments carried out by the State of Maharashtra to certain statutes.
The prayers made in both these Petitions will have to be tested on the
basis of the well settled law that there exists a presumption of
constitutional validity of any legislation. Though the learned counsel
representing some of the parties have made submissions at length as if
we were hearing these Petitions finally, the said submissions will have to
be considered in the context of grant of drastic prayers made for interim
relief.
FACTS OF WRIT PETITION NO.7847 OF 2014
2. In the Writ Petition No.7847 of 2014, the challenge is to
the Maharashtra Act No.XIX of 2014. The said Act is the Maharashtra

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Homoeopathic Practitioners' and the Maharashtra Medical Council
(Amendment) Act, 2014 (for short “the Act No.XIX of 2014”). By the
said Act of XIX of 2014, an amendment has been made to clause (a) in
Subsection (12) of Section 20 of the Maharashtra Homoeopathic
Practitioners' Act, 1960. Clause (a) in SubSection (12) of Section 20 of
the Maharashtra Homoeopathic Practitioners' Act, 1960 (for short “MHP
Act”) earlier read thus:
“(a) Every registered practitioner shall be given a
certificate of registration in the form prescribed by
rules; 9[and shall practice 10[Homoeopathy] only.
The registered practitioner shall display the
certificate of registration in a conspicuous place in
his dispensary, clinic or place of practice.]”
For the word “only”, by the Act No.XIX of 2014, the
following words have been added.
“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”.
3. By the Act of XIX of 2014, an amendment has been also
made to the provisions of the Maharashtra Medical Council Act, 1965
(for short “MMC Act”). The first amendment is to clause (d) of Section
2 of the MMC Act which defines the words “Medical Practitioner” or
“the Practitioner”. The said unamended clause (d) reads thus:

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“(d) “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.”
By Section 3 of the Act XIX of 2014, for the words “or
Biochemic System of Medicine” in clause (d), the words “ System of
Medicine” have been substituted. A proviso has been added to Clause
(d) which reads thus:
“Provided that, nothing in this clause shall mean to
exclude the registered practitioner as defined in
clause (16) of section 2 of the Maharashtra
Homoeopathic Practitioners' Act who have passed
the Certificate Course in Modern Pharmacology
approved by the State Government.”
4. The Clause (h) of Section 2 of the MMC Act defines the
word “Register”, which reads thus:
“(h) “Register” means the register of medical

practitioners prepared or deemed to be prepared
and maintained under this Act.”
After the words “maintained under this Act”, the following
portion has been added:
“and includes a separate register which shall be

maintained by the Council for those covered by entry
28 of the Schedule”.

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Section 10 of the MMC Act reads thus:
“10 Powers, duties and functions of the Council.
Subject to such conditions as may be prescribed by
or under the provisions of this Act, the powers,
duties and functions of the Council shall be
(a) to maintain the register, and to provide

for the registration of the medical
practitioners;
(b) to hear and decide appeals from any

decision of the Registrar;
(c) to prescribe a code of ethics for regulating
the professional conduct of practitioners;
(d) to reprimand a practitioner, or to

suspend or remove him from the register,
or to take such other disciplinary action
against him as may, in the opinion of the
Council, be necessary or expedient;
(e) to exercise such other powers, perform

such other duties and discharge such
other functions, as are laid down in this
Act, or as may be prescribed”.
After the words “conduct of practitioners” under clause(c)
above, by Section 4 of the Act No. XIX of 2014, the following words
have been added.
“including those covered by entry 28 of the

Schedule.”

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By virtue of Section 5 of the Act XIX of 2014, after the
Entry No. 27 in the Schedule to MMC Act, the Entry No.28 has been
added, which reads thus:
“28. Registered practitioner as defined in clause (16)
of section 2 of Maharashtra Homoeopathic
Practitioners' Act who have passed the Certificate
Course in Modern Pharmacology approved by the
State Government.”

5. Thus, by the Act No.XIX of 2014, by amending the MHP
Act, it has been provided that every registered practitioner under the
MHP Act will be entitled to practice 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. As a result of the amendments carried out to the MMC
Act by the said Act No.XIX of 2014, a person who is engaged in the
practice of Homoeopathic System of Medicine who has passed the
Certificate Course in Modern Pharmacology approved by the State
Government has been included in the definition of “Medical
Practitioner” or “Practitioner” under the MMC Act. The Schedule under
the MMC Act lays down the qualifications in addition to those specified
in the Schedule to the Indian Medical Council Act, 1965 (for short “IMC
Act”), the possession of which entitles a person for registration under
the MMC Act. The Act No.XIX of 2014 provides for adding Entry No.28

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in the Schedule by which the qualification of the Certificate Course in
Modern Pharmacology approved by the State Government has been
included. The Item No.28 covers registered practitioners as defined in
Clause (16) of Section 2 of the MHP Act who have passed the
Certificate Course in the Modern Pharmacology approved by the State
Government. By the other amendments to the MMC Act, it is provided
that a separate register shall be maintained by the Maharashtra Medical
Council for those who are covered by the Entry No.28 of the Schedule.
By virtue of addition of a proviso to Clause (d) of Section 2 of MMC Act,
a registered practitioner as defined in Clause (16) of Section 2 of the
MHP Act who has passed the Certificate Course in Modern
Pharmacology approved by the State Government will not be excluded
from the definition of the “Medical Practitioner” or “Practitioner”.
Thus, the net effect of the said Act No.XIX of 2014 will be that the
registered practitioners of Homoeopathic medicine who have passed a
Certificate Course in Modern Pharmacology approved by the State
Government will be entitled to practice Allopathy to the extent of the
knowledge received by passing the aforesaid certificate course. For the
sake of completion of the factual aspects, we must note here that as the
position stands today, the Certificate Course in Modern Pharmacology
approved by the State Government is not in existence and the State
Government has appointed a Committee to make recommendations to
suggest necessary details of the said Course.

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THE FACTS OF WRIT PETITION NO.7846 OF 2014
6. In the Writ Petition No.7846 of 2014, the challenge is
multiple. Firstly, the challenge is to the validity of the Maharashtra Act
No.XXVIII of 2014. The said Act is the Maharashtra Medical
Practitioners' (Amendment) Act, 2014. By the said Maharashtra Act
No.XXVIII of 2014, an amendment has been made to Section 25 of the
Maharashtra Medical Practitioners' Act, 1961 ( for short “MMP Act”).
The amendment has been made by incorporating Clauses (iv) and (v) in
Section 25 of the MMP Act. Section 25 of the MMP Act deals with the
right of registered practitioners to practice. This Section starts by a non
obstante clause . After the first three clauses, the following clauses have
been added by the Maharashtra Act No.XXVIII of 2014.
“(iv) the registered practitioners of the Indian

Medicine and holding the qualifications
mentioned in the PART A, A1, B or D of the
Schedule, shall have privilege to practice the
modern scientific medicine known as allopathic
medicine to the extent of the training they
received in that system, alongwith the system of
Indian Medicine for which they are registered.
(v) the registered practitioners of the Indian

medicine holding the qualifications mentioned in
the PART A, A1, B or D of the Schedule and
holding postgraduate qualification which is
entered as additional qualification in the register
prepared under section 17 shall be eligible to

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pursue and practice the latest knowledge, skill

and technological advances to the extent of the
training they received in that system during the
postgraduation.”
7. There is also a challenge in Writ Petition No.7846 of 2014
to the Notification dated 25th November 1992 by which in exercise of
powers under Section 33 of the MMP Act, the State Government
directed that the Ayurvedic Practitioners enrolled on the State Register
of Practitioners of Indian Medicine holding qualifications specified in
Parts A, B and A1 of the Schedule appended to the MMP Act shall be
eligible to practice the modern system of medicine which is known as
allopathic system of medicine, to the extent of the training they
received in that system. The clauses (iv) and (v) sought to be added by
the Maharashtra Act No.XXVIII of 2014 refer not only to the Parts A B
and A1, but also to the Part D.
8. It will be necessary to make a reference to the Clause (fa)
of Section 2 of the MMP Act which reads thus:
“(fa) “Indian Medicine” means the system of Indian
medicine commonly known as Ashtang Ayurvedic or
Siddha or Unani or Unani Tibb, whether,
supplemented or not by such modern advances as the
Central Council from time to time by notification
may declare under clause (e) of Subsection (1) of
Section 2 of the Indian of Medicine Central Council
Act, 1970 (XLVIII of 1970)”

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9. Section 17 of the MMP Act deals with the preparation of a
register of medical practitioners. In the register prepared, the names of
the practitioners who possess any of the qualifications specified in the
Schedule are required to be incorporated. The Section 29 deals with
the amendment of the Schedule which confers a power on the State
Government to amend the Schedule. Section 33 of the MMP Act
imposes prohibition on medical practice by persons who are not
registered.
10. The effect of incorporating Clause (iv) in Section 25 of the
MMP Act is that the registered practitioners of the Indian medicine who
are holding qualifications mentioned in Parts A, A1, B or D of the
Schedule shall have privilege to practice the modern scientific medicine
known as allopathic medicine to the extent of the training they received
in that system along with the system of Indian medicine for which they
are registered. Part A of the Schedule deals with the qualifications in
Ayurvedic system of Medicine with a course supplemented by the
modern advances. The Part A1 incorporates qualifications in Indian
system of medicine Ayurvedic recommended by the Central Council of
Indian Medicine. Part B of the Schedule deals with the qualifications in
Ayurvedic System with a course supplemented by the modern advances
with the matriculation or HSC examinations. Part D deals with the
qualification in Unani System of Medicine. Thus, by virtue of Clause

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(iv) added to Section 25 of the MMP Act by the Maharashtra Act
No.XXVIII of 2014, Ayurvedic and Unani Practitioners possessing the
qualifications mentioned in Part A, A1 and D of the Schedule will be
entitled to practice the modern scientific medicine known as allopathic
medicine to the extent of the training they received in that system along
with the system of Indian Medicine for which they are registered.
Clause (v) which is added to Section 25 of the MMP Act is a similar
clause which applies to the Registered Medical Practitioners holding
qualifications mentioned in Parts A, A1, B or D in the Schedule and
possessing the postgraduate qualifications. Such Practitioners are
eligible to pursue and practice the latest knowledge, skill and
technological advances to the extent of the training they received in
that system during the postgraduation. The first challenge in the Writ
Petition No.7846 of 2014 is to the Maharashtra Act No.XXVIII of 2014.
The second challenge is to the Notification dated 25 th November 1992.
The third challenge is to the Notification dated 23 rd February 1999
issued by the State Government by which it was declared that the
persons holding the qualifications for the time being mentioned in Parts
A, A1, B or D of the Schedule to the MMP Act will be entitled to
practice the modern scientific system of medicine for the purposes of
Drugs and Cosmetics Act, 1940. The fourth challenge incorporated by
way of amendment is to the validity of Section 28 of the MMC Act.

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DELAY IN FILING WRIT PETITION NO.7846 OF 2014 AS

REGARDS SOME PRAYERS:
11. As far as the challenge to the Notification dated 25 th
November 1992 as well as the Notification dated 23 rd February 1999 is
concerned, there is a gross delay. Even there is a gross delay in
challenging the validity of Section 28 of the MMC Act which exists on
the statute book from the year 1965. This Petition is filed on 8 th August
2014. The first Notification is in force for 22 years and the second one
is being operated for last 15 years. Therefore, no case is made out for
grant of stay to the said Notifications. Even Section 28 of the MMC Act
exists on the Statute Book from the year 1965. Apart from the
presumption of constitutionality, at such belated stage, a drastic prayer
made for grant of stay of operation of the provisions of Section 28
cannot be entertained apart from the fact that though the prayer (aa)
was added incorporating the substantive challenge to Section 28 of the
MMC Act, there is no specific prayer made for grant of interim relief as
regards the Section 28 of the MMC Act.
GIST OF IMPORTANT SUBMISSIONS:
12. As far as Writ Petition No.7846 of 2014 is concerned, the
submission of the learned senior counsel appearing for the Petitioner is
that clause (d) of Section 2 of MMC Act specifically provides that a

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Medical Practitioner does not include a Practitioner engaged in
Ayurvedic, Unani or Homoeopathic system of medicines. Therefore,
permitting the persons registered under the MMP Act, who are not
Allopathic Practitioners to practice allopathy to the extent of training
they received in that system is contrary to the Clause (d) of Section 2 of
the MMC Act. The learned senior counsel appearing for the Petitioner
relied upon Section 10A of the IMC Act. He submitted that unless the
Courses in Ayurvedic or Unani permitting the training in modern system
of Allopathy are recommended or approved by the Central Government
in accordance with Section 10A of the IMC Act, the State Government
cannot permit such persons to practice the modern system of allopathy.
He relied upon a decision of the Apex Court in the case of Thirumuruga
Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational
and Charitable Trust v. State of Tamil Nadu and Others 1. He submitted
that the IMC Act is an enactment under Entry No.66 in the ListI of
Seventh Schedule and thus, there is no power in the State Government
to enact any legislation pursuant to the Entry No.25 in the List III of
Seventh Schedule of the Constitution of India. His submission is that
Section 28 of the MMC Act is void in view of the enactment of Sections
10A to 10C of the IMC Act inserted by Act No.XXXI of 1993 in exercise
of powers under Entry No.66 in the List I. His submission is that the
power of prescribing standard of education or course is taken away by
1 AIR 1996 SC 2384

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the Central Government and, therefore, the Section 28 of the MMC Act
is void in view of the Article 254 of the Constitution of India. He urged
that the decision of the Apex Court in the case of Dr.Mukhtiar Chand
and Others v. State of Punjab and Others2 will not help the contesting
Respondents as the said decision does not consider the effect of the
enactment of Section 10A to 10C of the IMC Act. He has also made
detailed submissions based on the various provisions of the IMC Act.
The learned senior counsel representing the Medical Council of India
and the Maharashtra Medical Council have supported the Petitioner.
Reliance is placed on various decisions by the learned senior counsel
appearing for the said parties.
13. In support of the Writ Petition No.7847 of 2014, it was
submitted that under Section 2(d) of the MMC Act, only those persons
who are engaged in the practice of modern scientific medicine can get
registration as the definition excludes Ayurvedic and Homoeopathic
Practitioners. It is submitted that the Homoeopathic Practitioners who
have passed the certificate course in modern Pharmacology cannot be
covered by the provisions of the MMC Act. Relying upon the Clause (b)
of Section 10A(1) of the IMC Act, it was submitted that no medical
college can open a new or higher course of study or training which
would enable a student of such course or training to qualify himself for
2 (1998)7 SCC 579

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the award of recognized medical qualification unless it is recognized by
the Indian Medical Council. It was submitted that One Year Course in
modern Pharmacology approved by the State Government is not
recognized or approved by the Central Government as required by
Sections 10A and 10B of the IMC Act. It is again urged that the IMC Act
is under the Entry No.66 in ListI and thus, there is no power in the
State Government to enact any legislation in pursuance of Entry No.25
in the List III of Seventh Schedule. It is urged that after enactment of
Section 10A of the IMC Act, any legislation enacted contrary thereto by
the State would be void. It is submitted that the State Government has
no power to prescribe the Course of Study in modern farmacology. It is
urged that in view of the enactments of Sections 10A to 10C of the IMC
Act, the provisions of Section 28 of the MMC Act are rendered void. We
must note here that the Respondent No.5 in the Writ Petition No.7847
of 2014 which is the Central Council of Homoeopathy has supported
the Petitioner. In both the Petitions, there is also an argument made that
there is a possibility of the misuse of the amended provisions thereby
causing danger to the members of the public.
REPLY AFFIDAVIT OF THE STATE GOVERNMENT:
14. As far as the Writ Petition No.7846 of 2014 is concerned,
there is an affidavit filed by Shri Yashwant Rambhau Gaikawad on

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behalf of the State Government, who is the Deputy Secretary of Medical
Education and Drugs Department. It is pointed out that by the
Notifications of the years 1992 and 1999, the State has permitted the
Registered Practitioners of the Indian Medicine to practice the modern
scientific medicine known as allopathic medicine only to the extent of
knowledge and education received by them in that system and thus,
many such Practitioners are practicing allopathic medicine to that
extent for last more than 20 years. It is pointed out that from the year
1981, there is a critical shortage of doctors in various Government
hospitals and, therefore, by the Government Resolution dated 26 th May
1981, the State Government granted equal status and equal pay and
work profile to all the different category of doctors and medical officers
working in the Rural Hospitals and Primary Health Centres in the State.
It is pointed out that in various parts of the State, the doctors practising
Indian system of medicine who are employed in the Primary Health
Centers and other Government Hospitals are efficiently handling the
medical emergencies. It is pointed out that the total population of the
Maharashtra is around 12 crores, out of which 80% of the population
resides in Rural and Tribal areas. It is pointed out that as per the World
Health Organization guidelines, the ideal doctor patient ratio is 1 : 400.
If the number of only MBBS doctors in the State is taken into
consideration, then the said ratio comes to 1: 1700. If the doctors of
Indian Medicine System are considered, the said ratio comes to 1:700.

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It is pointed out that dominant rural and slum population in the
Maharashtra depends upon the doctors of Indian System of Medicine,
both in Government Hospitals and in the Private Sectors. It is
submitted that if the stay is granted, it will cause harm to the entire
population of the State especially the rural population.
SUBMISSIONS OF ADVOCATE GENERAL
15. The learned Advocate General appearing for the State
pointed out the Notifications of the years 1992 and 1999. He pointed
out that the qualification of Ayurvidya Visharad of the Tilak
Maharashtra Vidyapeeth of Pune, during the years 1921 to 1935, has
been included in the Schedule under the MMC Act. Relying upon the
well settled principle of presumption in favour of the constitutional
validity of any legislation, he submitted that the law laid down by the
Apex Court in the case of Bhavesh D. Parish and Others v. Union of India
and Another3 will apply even to his case though the said decision was in
relation to a fiscal statute. He urged that considering the availability of
the doctors practising modern system of medicine and considering the
larger interests of rural population that the State Government has
carried out the impugned amendments and, therefore, the interim relief
cannot be granted. He countered the submission regarding the possible
misuse of the amended provisions by relying upon a decision of the
3 (2000)5 SCC 471

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Apex Court in the case of Sushil Kumar Sharma V. Union of India and
others4. Lastly he urged that the decision in the case of Dr.Mukhtiar
Chand and Others settles the issue. He, therefore, submitted that no
case is made out for grant of any interim relief.
CONSIDERATION OF SUBMISSIONS FOR LIMITED

PURPOSES OF GRANT OF INTERIM RELIEF:
16. When we consider the submissions in support of the prayer
for grant of stay, the law laid down by the Apex Court in the case of
Bhavesh D. Parish and Others and in particular Paragraph 30 thereof will
have to be considered. Paragraph 30 of the said decision reads thus:
“30. Before we conclude there is another matter which

we must advert to. It has been brought to our notice that
Section 45-S of the Act has been challenged in various
High Courts and a few of them have granted the stay of
provisions of Section 45-S. When considering an
application for staying the operation of a piece of
legislation, and that too pertaining to economic reform or
change, then the courts must bear in mind that unless
the provision is manifestly unjust or glaringly
unconstitutional, the courts must show judicial restraint
in staying the applicability of the same. Merely because a
statute comes up for examination and some arguable
point is raised, which persuades the courts to consider
the controversy, the legislative will should not normally
be put under suspension pending such consideration. It
is now well settled that there is always a
presumption in favour of the constitutional validity
of any legislation, unless the same is set aside after
final hearing and, therefore, the tendency to grant
stay of legislation relating to economic reform, at the
interim stage, cannot be understood. The system of
checks and balances has to be utilised in a balanced
4 (2005)6 SCC 281

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manner with the primary objective of accelerating

economic growth rather than suspending its growth by
doubting its constitutional efficacy at the threshold.”
(emphasis added)
17. In the decision in the case of Bhavesh D. Parish and Others,
the Apex Court was dealing with the amendments made to the Reserve
Bank of India Act, 1934. In Paragraph 31, the Apex Court has observed
thus:
“31. While the courts should not abrogate ( sic abdicate)

their duty of granting interim injunctions where
necessary, equally important is the need to ensure that
the judicial discretion does not abrogate from the
function of weighing the overwhelming public interest in
favour of the continuing operation of a fiscal statute or a
piece of economic reform legislation, till on a mature
consideration at the final hearing, it is found to be
unconstitutional. It is, therefore, necessary to sound a
word of caution against intervening at the interlocutory
stage in matters of economic reforms and fiscal statutes.”
18. It is in this context that the statements made on oath by
Shri Yashwant Rambhau Gaikwad, the Deputy Secretary of the Medical
Education and Drugs Department of the State of Maharashtra, in his
affidavit in the Writ Petition No.7846 of 2014 will have to be
considered. In Paragraphs 33 to 37 of the said affidavit, he has stated
thus:
“33. I say and submit that the total population of

Maharashtra is around 12 crores, out of which
80% of population is based in rural, tribal &
slum areas. According to WHO guidelines, the
ideal doctor patient ratio is 1:400. If the

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number of only MBBS doctors is taken into

consideration then the ratio is 1:1700. The said
huge gap of doctor patient ratio in State like
Maharashtra can be brought to near ideal if the
doctors of Indian System of Medicine are
considered, viz. (1:1700). The above stated
dominant rural and slum dominant
population of Maharashtra is solely
dependent on the doctors of Indian System of
Medicine (private as well as Government
sector) practicing in those area whereas the
doctors having MBBS degrees are not
available. Therefore, it is humbly submitted
that if any interim relief as prayed by the
petitioner is granted, it will in a way deprive the
rural and slum population of the health needs
which are diligently taken care of as afore
stated.
34. Furthermore, the following position will go to

demonstrate the grave harm and damage that
will be to public at large and the health care
system in particular if any stay is granted in
view of the involvement of the medical
practitioners in ISM as set with herein under.
The Primary Heal Centers (PHC)

located in the remotest of the remote pockets
of the State of Maharashtra are largely
manned by these Doctors. I say and submit
that the rural hospitals provide emergency,
maternity, surgical, and critical care services
where at too these Doctors are serving. I say
and submit that the Ambulance (108) services
under national ambulance program, joint
program of Government of India and
Government of Maharashtra shall stand affected
which is a joint program of NRHM (National
Rural Health Mission) & Government of
Maharashtra which practically deals with
emergency and critical care management of the
fatal emergencies & which service is well
appreciated in the society is completely run &
fully dependent on doctors of ISM. I would like
to put on record that RBSK as well as NRHM

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schemes run in the State of Maharashtra

which are well appreciated by Government of
India are run today by the services of BAMS
& BUMS doctors. I crave leave to produce the
data of the manpower of the doctors of Indian
medicine working in Government sector and
providing services in the rural, tribal and slum
dominant areas.
35. I further say and submit that the PHC's are

the primary source of treating the patients in
Emergency and if the doctors of Indian
System of Medicine, who primarily work at
the grass root levels, are prohibited from
using Modern system of medicines, a wide
spread damage in terms of nonavailability of
Medical help in Emergency would be caused.
36. I say and submit that services of the medical

officers of ISM recruited through MPSC or direct
employments which are around 7000 in number,
who are serving in the remotest of the remote
areas of Maharashtra would be affected.
37. I also say and submit that the relentless services
of around seventy eight thousand practitioners
of Indian System of Medicine (ISM) providing
health care services to the rural and urban areas
since more than 50 years shall stand affected. I
say and submit that casualty medical officers;
resident doctors in Government as well as
private multispecialty hospitals including
super specialty and critical care management
are largely dependent on ISM doctors.
Therefore, I say that the aforestated projects
which are in nature of basic as well as critical
care health services to the public at large
including the economically disadvantaged
sections of the society in rural; tribal and slum
areas, in keeping with the national health
programs will not only be gravely prejudiced but
will also virtually lead to its collapse. Presently,
in the State of Maharashtra as aforementioned
nearly 78000 ISM practitioners are actively
involved in the running of the said projects as

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and therefore grant of stay as prayed for by the
petitioners will have an adverse cascading effect
in that regard”.
(emphasis supplied)
19. The IMC Act applies only to modern scientific medicine as
is clear from the clause (f) of Section 2 thereof. Section 15 thereof
provides that the medical qualifications included in the Schedules to the
said Act shall be sufficient qualifications for enrollment on any State
Medical Register. Subsection (2) thereof provides that no person other
than a medical practitioner enrolled on a State Medical Register shall
practice medicine in any State. Thus, the said Act deals only with the
practice of allopathy or modern medicine. The Indian Medicine Central
Council Act, 1970 (for short “IMCC Act”) applies to Indian medicines
such as Ayurveda and Unani etc. Section 17 of the IMCC Act provides
that the medical qualifications provided in the Second, Third or Fourth
Schedules thereto shall be sufficient qualifications for the enrollment on
any State Register of Indian Medicine. Subsection (2) thereof provides
that no person other than a practitioner of Indian Medicine who
possesses a recognised medical qualification and whose name is on a
State Register or the Central Register of Indian medicine shall practice
Indian medicine in any State. As distinguished from the IMC Act, the
IMCC Act provides for maintenance of a Central Register of Indian
Medicine as well as the State Register. It is pertinent to note that from

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the definition provided in Clause (e) of Section (2) of the IMCC Act, it
is apparent that the Homoeopathic medicine is not included in the
Indian medicine.
20. The Homoeopathy Central Council Act, 1973 ( for short
“The HCC Act”) deals with the Central Register of Homoeopathy.
Clause (d) of Subsection (1) of Section 2 of the HCC Act defines the
term “Homoeopathy” to mean the Homoeopathic System of Medicine
and includes use of biochemic remedies. Section 15 thereof provides
that any medical qualification included in the Second or the Third
Schedule shall be sufficient qualification for enrollment on the State
Register of Homoeopathy. Subsection (2) of Section 15 provides that a
practitioner of Homeopathy who possesses a recognized medical
qualification and is enrolled on a State Register or the Central Register
of Homoeopathy shall be entitled to practice Homoeopathy in any State.
Thus, even the HCC Act provides for maintenance of two registers.
Section 21 provides that the Central Register of Homoeopathy is in two
parts. The First Part contains the names of all persons who are enrolled
on any State Register and the Second Part contains the name of all
persons other than those who are enrolled on any State Register. MHP
Act again applies only to Homoeopathic System of Medicine. Section 20
of the MHP Act deals with the preparation of a State Register for the
State of Maharashtra.

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21. As provided in Clause (fa) of Subsection (1) of Section 2
of the MMP Act, the same deals with the Indian medicines such as
Ayurvedic and Unani medicines. The MMP Act does not apply to
Homoeopathic medicine. Section 17 thereof contemplates the
preparation of a State Register. One of the three parts of the State
Register contains the name of the practitioners who possess any of the
qualifications specified in the Schedule. Section 33 of the MMP Act
provides that no person other than a medical practitioner whose name
is entered in the Register maintained under the MMP Act or the MHP
Act or the MMC Act shall practice any system of medicine in the State.
Thus, Section 33 of the MMP Act is applicable not only to a medical
practitioner practising the Indian medicine, but is also applicable to the
practitioners who are practising the Homoeopathic or Allopathic
medicine. Unamended clause (d) of Section 2 of the MMC Act defines
the term “medical practitioner” to mean a person who is engaged in the
practice of modern scientific medicine in any of its branches, but it
excludes Ayurvedic, Unani and Homoeopathic system of medicine.
Section 16 of the MMC Act provides for preparation and maintenance of
Register which contains the names of the persons who possess any of
the qualifications specified in the Schedule to the MMC Act or in the
Schedule to the IMC Act. It is pertinent to note here that the Schedule
under the MMC Act contains qualifications in addition to those specified

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in the Schedules under the IMC Act. The Schedule includes Ayurvidya
Visharad of the Tilak Maharashtra Vidyapeeth of Pune, during the years
1921 to 1935.
22. In the light of the aforesaid statutes, the challenge in the
Petitions will have to be considered in the context of the prayer for
grant of interim reliefs. It will be necessary to make a reference to the
Notification dated 25th November 1992 which is challenged in the Writ
Petition No7846 of 2014. The said Notification reads thus:
“No.CIM.1091/CR179/91 (Part V) ACT. In exercise
of the powers conferred by the proviso to section 33,
read with clause (fa) of section 2 of the Maharashtra
Medical practitioners' Act, 1961 (Mah.XXVIII of 1961)
(hereinafter referred to as “the said Act”), the
Government of Maharashtra hereby directs that the
Ayurvedic Practitioners enrolled on the State
Register of Practitioners of Indian Medicine
holding qualification specified in Parts A, B and A1
of the Schedule appended to the said Act, shall be
eligible to practise the modern system of medicine
which is known as allopathic system of medicine,
to the extent of the training they received in that
system.”
(emphasis added)
23. Thus, from 25th November 1992, the medical practitioners
enrolled on the State Register of Indian Medicine holding qualifications
provided in the Parts A, A1 and B of the Schedule under MMP Act
became eligible to practice in the modern system of medicine which is

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known as allopathic system of medicine to the extent of the training
they received in that system. By the Maharashtra Act No.XXVIII of 2014
in Section 25 of MMP Act which deals with the rights of the registered
practitioners to practice, the Clauses (iv) and (v) have been
incorporated which provide that the registered practitioners holding
qualifications mentioned in Parts A, A1, B or D of the Schedule under
the MMP Act shall have privilege to practice the modern scientific
system of medicine which is known as Allopathic system of medicine to
the extent of training they received in that system along with the system
of Indian Medicine for which they are registered. The Part D of the
Schedule to the MMP Act lays down qualifications in Unani System of
Medicine. Thus, from 25th November 1992, Ayurvedic Practitioners
enrolled under the MMP Act were entitled to practice the modern
system of medicine to the extent of the training they received in that
system. Now, by the impugned statutory amendment, even Unani
practitioners possessing qualifications set out in Part D of the Shedule
are entiled to practice the modern system of medicine to the extent of
the training they received in that system. The other Notification dated
23rd February 1999 which is challenged in the Writ Petition No.7846 of
2014 has been issued in exercise of powers under Subclause (iii) of
Clause (ee) of Rule 2 of the Drugs and Cosmetics Rules, 1945. It
provides that the persons holding qualifications mentioned in Parts A,
A1, B and D of the Schedule to the MMP Act and registered in the

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register maintained under the said Act are declared to be persons
practicing the modern scientific system of medicine for the purposes of
the Drugs and Cosmetics Act, 1940. Thus, from 23 rd February 1999, the
Ayurvedic and Unani Practitioners who are covered by the Schedule
A,A1,B and D under the MMP Act and who have registered thereunder
were entitled to practice the allopathic system of medicine. This is
subject to the law laid down by the Apex Court in the case of Dr.
Mukhtiar Chand. Thus, nothing which is very drastic has been newly
brought about by the Maharashtra Act No.XXVIII of 2014 and,
therefore, no case is made out for grant of stay of operation of the Act
No.XXVIII of 2014. We have already observed that no case is made out
for grant of stay of operation of the provisions of the Notifications dated
25th November 1992 and 23rd February 1999 on the ground of gross
delay.
24. As far as the challenge in the Writ Petition No.7847 of 2014
to the Maharashtra Act No.XIX of 2014 is concerned, under unamended
Subclause (a) of Subsection (12) of Section 20 of the MHP Act, a
registered Homoeopathic Practitioner was entitled to practice only in
Homoeopathy. By Section 2 of the Act No.XIX of 2014, after deleting
the word “only”, a provision is added that a registered Homoeopathic
practitioner shall be entitled to practice Modern Scientific Medicine
(Allopathy) in the State to the extent of knowledge received by passing

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a Certificate Course in the modern pharmacology approved by the State
Government. The second amendment is made by the said Act No.XIX
of 2014 is to Clause (d) of Section 2 of the MMC Act. As pointed out
earlier, under the Clause (d) of Section 2 of the MMC Act, a medical
practitioner was defined to mean a person who is engaged in the
practice of modern scientific medicine, but it did not include a person
engaged in practice of Ayurvedic, Unani, Homoeopathic or Biochemic
System of Medicine. The last part of Clause (d) is amended for
clarifying that a registered practitioner under the MHP Act who has
passed a Certificate Course in the modern pharmacology approved by
the State Government will not be excluded from the definition of
“Medical Practitioner”. Further amendments are made in Section 10 as
well as to the Schedule to the MMC Act. The effect of the Maharashtra
Act No.XIX of 2014 is that those who are registered under the MHP Act
as Homoeopathic Practitioners will be entitled to practice modern
scientific medicine (Allopathy) to the extent of knowledge received by
them by passing a Certificate Course in the modern pharmacology
approved by the State Government.
25. As pointed out earlier, right from the year 1992, the
Ayurvedic Practitioners have been permitted to practice modern
scientific medicine to the extent of knowledge received by them of
modern scientific medicine. Moreover, in the affidavit of the State

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Government to which we have made a reference earlier, it is stated that
the amendments were required to be brought as a matter of policy to
ensure that the adequate number of Doctors are made available for the
rural population and to implement various health schemes as narrated
therein. The object of the amendments is to ensure that the medical
relief is extended to a large percentage of population which resides in
the rural areas. Thus, the amendments are based on a policy decision
of the State to ensure that health services are available to the majority
population in rural area. The decision of the Apex Court in the case of
Bhavesh deals with the issue of grant of stay of operation of fiscal
statutes. There is no reason why the principles laid down therein should
not apply to the impugned statutory amendments based on the policy of
the State. The grant of stay, as narrated in the affidavit of the State,
will adversely affect the health services to the majority population of
the State. Therefore, no case is made out for grant of stay.
26. Another issue is canvassed regarding the validity of the
Certificate Course in the modern pharmacology which will be approved
by the State Government. The submissions have been made based on
the Section 10A of the IMC Act which requires previous permission of
the Central Government for even opening a new Course of Study.

ash 30 wp-7846n7847.14-order-
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27. At this stage, admittedly, the nature of the Certificate
Course proposed as provided in the Maharashtra Act No.XIX of 2014 is
not determined. Depending upon the nature of the Course and the
manner in which it is introduced, the issue whether the Certificate
Course meets the requirements of relevant law will have to be decided.
It is obvious that if such a Course requires approvals of the various
Authorities in accordance with law, the State Government will have to
take necessary approvals. As soon as a final decision is taken regarding
the nature of the Course, its syllabus, etc., we grant liberty to the
Petitioner to take out a separate Application for grant of interim relief
only in relation to the Course.
28. Now we may make a reference to the decision in the case
of Dr.Mukhtiar Chand and Others. The issue which arose before the
Apex Court is noted in Paragraphs 1 and 2 Which read thus:
“1. These cases raise questions of general

importance and practical significance — questions
relating not only to the right to practise the medical
profession but also to the right to life which includes
the health and well-being of a person. The controversy
in these cases was triggered off by the issuance of
declarations by the State Governments under clause ( iii)
of Rule 2(ee) of the Drugs and Cosmetics Rules, 1945
(for short “the Drugs Rules”) which defines “registered
medical practitioner”. Under such declarations, notified
vaids/hakims claim right to prescribe allopathic drugs
covered by the Indian Drugs and Cosmetics Act, 1940
(for short “the Drugs Act”). Furthermore, vaids/hakims
who have obtained degrees in integrated courses claim
the right to practise the allopathic system of medicine.

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2. In exercise of the power under clause (iii) of Rule

2(ee), the State of Punjab issued Notification No. 9874-
IHBII-67/34526 dated 29-10-1967 declaring all the
vaids/hakims who had been registered under the East
Punjab Ayurvedic and Unani Practitioners Act, 1949 and
the PEPSU Ayurvedic and Unani Practitioners Act, 2008
Bk and the Punjab Ayurvedic and Unani Practitioners
Act, 1963 as persons practising modern system of
medicine for purposes of the Drugs Act. One Dr Sarwan
Singh Dardi who was a medical practitioner, registered
with the Board of Ayurvedic and Unani System of
Medicines, Punjab, and who was practising modern
system of medicines, was served with an order of the
District Drugs Inspector, Hoshiarpur, prohibiting him
from keeping in his possession any allopathic drug for
administration to patients and further issuing a general
direction to the chemists not to issue allopathic drugs to
any patient on the prescription of the said doctor. That
action of the Inspector was questioned by Dr Dardi in
the Punjab & Haryana High Court in CWP No. 2204 of
1986. He claimed that he was covered by the said
notification and was entitled to prescribe allopathic
medicine to his patients and store such drugs for their
treatment (hereinafter referred to as “Dardi's case”). A
Division Bench of the Punjab & Haryana High Court, by
judgment dated 17-9-1986, held that the said
notification was ultra vires the provisions of sub-clause
(iii) of clause (ee) of Rule 2 of the Drugs Rules and also
contrary to the provisions of the Medical Council Act,
1956 and accordingly dismissed his writ petition.”
In paragraph 49, the Apex Court held thus:
“49. The upshot of the above discussion is that Rule 2( ee)

(iii) as effected from 14-5-1960 is valid and does not
suffer from the vice of want of legislative competence
and the notifications issued by the State Governments
thereunder are not ultra vires the said Rule and are legal.
However, after sub-section (2) in Section 15 of the 1956
Act occupied the field vide Central Act 24 of 1964 with
effect from 16-6-1964, the benefit of the said Rule and
the notifications issued thereunder would be
available only in those States where the privilege of
such right to practise any system of medicine is
conferred by the State law under which practitioners
of Indian medicine are registered in the State, which
is for the time being in force. The position with regard

ash 32 wp-7846n7847.14-order-
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to medical practitioners of Indian medicine holding

degrees in integrated courses is on the same plane
inasmuch as if any State Act recognizes their qualification
as sufficient for registration in the State Medical Register,
the prohibition contained in Section 15(2)( b) of the 1956
Act will not apply.”
(emphasis added)
29. At this stage, when we are considering the drastic prayer for
interim relief, we cannot brush aside the aforesaid decision on the
ground that Sections 10A, 10B and 10C were not considered by the
Apex Court. The decision continues to hold the field. There are other
decisions relied upon by the Parties. We are not finally deciding the
Petitions. Therefore, it is not necessary to elaborate in detail what the
decisions hold. The said decisions do not affect the reasons which we
have recorded for rejecting the Prayers for interim relief.
30. Another ground canvassed is the possibility of misuse of the
impugned provisions. The law is well settled. In the case of Sushil
Kumar Sharma v. Union of India, (2005) 6 SCC 281, the Apex Court
held thus:
“12. It is well settled that mere possibility of abuse
of a provision of law does not per se invalidate a
legislation. It must be presumed, unless the contrary
is proved, that administration and application of a
particular law would be done “not with an evil eye
and unequal hand”. (See A. Thangal Kunju
Musaliar v. M. Venkatichalam Potti [(1955) 2 SCR
1196 : AIR 1956 SC 246] .)”

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31. Subject to what is observed above, the prayer for interim
relief in both the Petitions is rejected.
(A.S.GADKARI, J) ( A.S. OKA, J )

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Mr.Pralhad Paranjape a/w Dr.Arun Mishra i/b Aafrin Shaikh for

Mr.A.V.Anturkar, Senior Advocate a/w Mr.Abhay Anturkar i/b Mr.Rui

Mr.A.A.Kumbhakoni, Senior Advocate i/b Mr.Shrikant V. Gavand a/w

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Homoeopathic Practitioners' and the Maharashtra Medical Council

Sub­section (12) of Section 20 of the Maharashtra Homoeopathic

For the word “only”, by the Act No.XIX of 2014, the

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By Section 3 of the Act XIX of 2014, for the words “or

“(h) “Register” means the register of medical

“and includes a separate register which shall be

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(a) to maintain the register, and to provide

(b) to hear and decide appeals from any

(d) to reprimand a practitioner, or to

(e) to exercise such other powers, perform

“including those covered by entry 28 of the

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MHP Act will be entitled to practice Modern Scientific Medicine

practice of Homoeopathic System of Medicine who has passed the

Certificate Course in Modern Pharmacology approved by the State

Government has been included in the definition of “Medical

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Modern Pharmacology approved by the State Government has been

MHP Act who has passed the Certificate Course in Modern

from the definition of the “Medical Practitioner” or “Practitioner”.

Thus, the net effect of the said Act No.XIX of 2014 will be that the

Certificate Course in Modern Pharmacology approved by the State

approved by the State Government is not in existence and the State

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6. In the Writ Petition No.7846 of 2014, the challenge is

No.XXVIII of 2014. The said Act is the Maharashtra Medical

Practitioners' (Amendment) Act, 2014. By the said Maharashtra Act

“(iv) the registered practitioners of the Indian

(v) the registered practitioners of the Indian

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pursue and practice the latest knowledge, skill

powers under Section 33 of the MMP Act, the State Government

allopathic system of medicine, to the extent of the training they

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Government to amend the Schedule. Section 33 of the MMP Act

imposes prohibition on medical practice by persons who are not

are holding qualifications mentioned in Parts A, A­1, B or D of the

Ayurvedic system of Medicine with a course supplemented by the

with the matriculation or HSC examinations. Part D deals with the

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(iv) added to Section 25 of the MMP Act by the Maharashtra Act

No.XXVIII of 2014, Ayurvedic and Unani Practitioners possessing the

clause which applies to the Registered Medical Practitioners holding

possessing the post­graduate qualifications. Such Practitioners are

eligible to pursue and practice the latest knowledge, skill and

technological advances to the extent of the training they received in

The third challenge is to the Notification dated 23 rd February 1999

issued by the State Government by which it was declared that the

A, A­1, B or D of the Schedule to the MMP Act will be entitled to

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DELAY IN FILING WRIT PETITION NO.7846 OF 2014 AS

Subsection (12) of Section 20 of the Maharashtra Homoeopathic

are holding qualifications mentioned in Parts A, A1, B or D of the

possessing the postgraduate qualifications. Such Practitioners are

A, A1, B or D of the Schedule to the MMP Act will be entitled to

that the IMC Act is an enactment under Entry No.66 in the ListI of

provided in the Parts A, A1 and B of the Schedule under MMP Act