{"id":234972,"date":"1992-04-22T00:00:00","date_gmt":"1992-04-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-a-k-sabhapathy-vs-state-of-kerala-and-ors-on-22-april-1992"},"modified":"2015-12-16T05:30:57","modified_gmt":"2015-12-16T00:00:57","slug":"dr-a-k-sabhapathy-vs-state-of-kerala-and-ors-on-22-april-1992","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-a-k-sabhapathy-vs-state-of-kerala-and-ors-on-22-april-1992","title":{"rendered":"Dr. A.K. Sabhapathy vs State Of Kerala And Ors on 22 April, 1992"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dr. A.K. Sabhapathy vs State Of Kerala And Ors on 22 April, 1992<\/div>\n
Equivalent citations: 1992 AIR 1310, \t\t 1992 SCR (2) 653<\/div>\n
Author: S Agrawal<\/div>\n
Bench: Agrawal, S.C. (J)<\/div>\n
           PETITIONER:\nDR. A.K. SABHAPATHY\n\n\tVs.\n\nRESPONDENT:\nSTATE OF KERALA AND ORS.\n\nDATE OF JUDGMENT22\/04\/1992\n\nBENCH:\nAGRAWAL, S.C. (J)\nBENCH:\nAGRAWAL, S.C. (J)\nFATHIMA BEEVI, M. (J)\n\nCITATION:\n 1992 AIR 1310\t\t  1992 SCR  (2) 653\n 1992 SCC  Supl.  (3) 147 JT 1992 (3)\t 66\n 1992 SCALE  (1)843\n\n\nACT:\n       Constitution  of\t India,\t 1950:\tArticle\t 254-Seventh\nSchedule-List-III-Entry\t 26-Medical Profession-Central\tLaw-\nState  law-Test\t for determination  of\tRepugnancy-What\t is-\nConditions  necessary for applicability of Article 254\tdis-\ncussed.\nDoctrine of occupied filed.\n     Travancore-Cochin\tMedical\t Practitioners\tAct,   1953:\nSection\t 38-First proviso-Medical  Practitioner-Practice  in\nallopathic system of medicine-Qualifications and  conditions\nfor  registration-Power\t of Government\tto  grant  exemption\nfrom-First  proviso, to the extent it relates to  allopathic\nsystem of medicine, held inconsistent with and repugnant  to\nsections 15 and 21 of the Indian Medical Council Act, 1956.\n     Indian  Medical  Council  Act,  1956:  Section  2\t(f)-\nExpression \"Modern scientific medicine\" refers to allopathic\nsystem of medicine-Object of the Act explained.\n\n\n\nHEADNOTE:\n     Section\t38   of\t  the\tTravancore-Cochin    Medical\nPractitioners' Act, 1953 provides that no person other\tthan\na  registered medical practitioner or a\t practitioner  whose\nname is entered in the list published under section 30 or in\nthe  list published under Section 25 shall  practise  modern\nmedicine,  homoepathic medicine, ayurvedic medicine,  siddha\nmedicine or unani tibbi medicine.  It further provides\tthat\nno  person who is not a registered practitioner of any\tsuch\nmedicine shall practise any other medicine unless he is also\nregistered  practitioner of that medicine. First proviso  to\nthe  said  section empowers the State  Government  to  grant\nexemption from the application of the section by  publishing\na  Notification in the official gazette. In exercise of\t the\npower conferred by the said proviso the Government of Kerala\nissued\ta  notification\t dated May 4,  1977  directing\tthat\nSection\t 38  shall not aply to persons\tholding\t degree\t and\ndiploma from Kerala University in Integrated Medicine  (DAM)\nfor practising\n\t\t\t\t\t\t       654\nmodern\tmedicine in the State. By an order  dated  September\n28, 1978 Government of Kerala also ordered that the  Diploma\nin Medicine and Surgery (DMS) awarded by Government of Bihar\nwill  be held at par with the integrated DAM of Kerala\tUni-\nversity\t and  by its notification dated April 13,  1981\t the\nGovernment  directed  that  section 38 shall  not  apply  to\nholders of DMS awarded by Government of Bihar.\n     The appellant challenged the validity of first  proviso\nto  section 38 and the Notifications dated May 4,  1977\t and\nApril 13, 1981 issued there-under as well as the order dated\n28th September 1978 on the ground that the first proviso  to\nSection\t 38 of the Travancore-Cochin Medical  Practitioners'\nAct,  1953, a State Act, was void under Article 254  of\t the\nConstitution  because it was repugnant to  and\tinconsistent\nwith  section 15 of the Indian Medical Council Act, 1956,  a\nCentral Act.\n     The  High Court of Kerala did not go into the  validity\nof notification dated May 4, 1977 but it upheld the validity\nof the first rpoviso and the order dated September 28,\t1978\nas well as the notification dated April 13, 1981 by  holding\n(a) that the Central Act does not lay down any qualification\nfor  registration  and all that section 15 says\t is  that  a\nperson\twhose name is not seen in the State  register  shall\nnot  practise medicine; (b) the proviso to section  38\tdoes\nnot  in\t terms say that a person whose name is\tnot  on\t the\nrolls  of  the\tState register in one  system  can  practise\nanother system and it only exempts practitioners who want to\npractise one system without being in the concerned list from\nthe  operation of section 38; (c) that neither\tthe  Central\nAct nor the State Act contains any provision which prohibits\na person possessing the requisite qualification to  practise\ntwo  systems from getting enrolled on two State rolls and  a\npractitioner can be a registered practitioner in two  regis-\nters  and  the Central Act does not place an  embargo  on  a\nState from recognising qualifications for the purpose of two\nsystems;  (d) that the definition of medicine  contained  in\nsection\t 2(f)  of  the Central Act would  not  involve\tboth\nHomoepathic  and indigenous system of medicine and that\t the\nCentral ACt concern itself only with the allopathic medicine\nand  the modern system contemplated by it is the  allopathic\nmedicine.  Against  the judgment of the\t Kerala\t High  Court\nappeal was filed in this court.\n     Allowing the appeal in part, this court,\n\t\t\t\t\t\t       655\nHELD:  1. In order that Article 254(1) of  the\tConstitution\nmay  apply,  two  conditions must  be  fulfilled.   Firstly,\nprovisions  of the Provincial law and those of\tthe  Central\nlegislation  must  both be in respect of a matter  which  is\nenumerated  in the Concurrent List, and secondly, they\tmust\nbe  repugnant  to each other.  It is only  when\t both  these\nreguirements are satisfied that the Provincial law will,  to\nthe extent of the repugnancy, become void. [661 B-C]\n     A.\t S.  Krishna  v. State of Madras,<\/a>  [1957]  SCR\t399,\nHoechst Pharmaceuticals Ltd. and Anr. etc. v. State of Bihar\nand Ors., [1983] 3 SCR 130, referred to.\n     2.\t In the instant case the Central Act as well as\t the\nState  Act  are\t both laws made in respect  of\tthe  medical\nprofession  which  is a matter relating to Entry 26  of\t the\nConcurrent  List.  The field of operation of the  State\t Act\ncovers\tall  the systems of  medicine,\tnamely,\t allopathic,\nayurvedic,   siddha,  unani  and  homoepathic\tsystems\t  of\nmedicine.    Moreover\tit   deals   with   recognition\t  of\nqualifications\trequired for registration of a person  as  a\nmedical\t practitioner  in  these  systems,  conditions\t for\nregistration  of  medical practitioners and  maintenance  of\nregister  of practitioners for each system and\tconstitution\nof   separate  councils\t for  modern  medicine\t homeopathic\nmedicine and indigenous medicine.  [661 E, 665 C-D]\n     As compared to the State ACt, the field of operation of\nthe  Central  Act is restricted and it is  confined  in\t its\napplication  to\t modern\t scientific  medicine,\tnamely,\t the\nallopathic  system of medicine only, wherein also  it  deals\nwith recognition of medical qualifications which may entitle\na person to be registered as a medical practitioner, consti-\ntution of the Medical Council of India to advise the Central\nGovernment  in\tthe matter of recognition or  withdrawal  of\nrecognition  of\t medical qualifications,  to  prescribe\t the\nminimum standards of medical education required for granting\nrecognised medical qualifications by Universities or medical\ninstitutions in India and to appoint inspectors and visitors\nfor inspection of any medical institution, college or hospi-\ntal.  But the Central Act  does not deal with the  registra-\ntion of medical practitioners in the States and it  proceeds\non the basis that the said registration and the\t maintenance\nof State Medical Register is to be governed by the law\tmade\nby the State. It cannot, therefore, be said that the Central\nAct  lays down an exhaustive code in respect of the  subject\nmatter dealt with by the State ACt. [665 E-H]\n\t\t\t\t\t\t  656\n     2.1 However it can be said that the Central Act and the\nState  Act, to a limited extent occupy the same field,\tviz,\nrecognition of medical qualifications which are required for\na  person to be registered as a medical practitioner in\t the\nallopathic  system  of medicine. Both  the  enactments\tmake\nprovision for recognition of such qualifications granted  by\nthe Universities or medical institutions. [665 H, 666 A]\n     Deep  Chand v. State of Uttar Pradesh and Ors.,<\/a>  [1959]\nsuppl. 2 SCR 8, relied on.\n     M.\t Karunanidhi  v. Union of India,<\/a>  [1979]  3SCR\t254,\nreferred to.\n     3. The High Court erred in holding that the Central ACt\ndoes  not lay down the qualifications for registration of  a\nmedical\t practitioner.\tThe provisions of  the\tCentral\t Act\ncontemplate that a person can practise in allopathic  system\nof  medicine  in  a  state or in  the  country\tonly  if  he\npossesses  a recognised medical qualification. Permitting  a\nperson\t who  does  not\t possess  the\trecognised   medical\nqualification in the allopathic system of medicine would  be\nin  direct conflict with the provisions of the Central\tAct.\n[668 A, 668 C]\n     4. The first  proviso to Section 38 of the\t Travancore-\nCochin\tMedical\t Practitioners' Act, 1953 in so\t far  as  it\nempowers the State Government to permit a person to practise\nallopathic  system of medicine even though he does not\tpos-\nsess  the recognised medical qualifications for that  system\nof medicine is inconsistent with the provisions of  Sections\n15  and 21 read with Sections 11-14 of the Central Act.\t The\nsaid  proviso suffers from the vice of repugnancy in so\t far\nas  it\tcovers persons who want to practise  the  Allopathic\nsystem of medicine and is void to the extent of such  repug-\nnancy. Practitioners in allopathic system of medicine  must,\ntherefore,  be excluded from the scope of the first  proviso\nand  it\t must be confined in its application to\t systems  of\nmedicines other than the Allopathic system of medicine.\n\t\t\t\t\t      [668 C-E]\n     4.1.  The\tnotification dated April  13,  1981,  issued\nunder the first proviso to Section 38, which enables holders\nof DMS diploma to practise modern medicine cannot be  upheld\nand  is\t set aside.  However the order dated  September\t 20,\n1978 treating the DMS diploma awarded by Government of Bihar\nat  par with Integrated DAM of the University of Kerala\t for\nthe  purpose of continuing in profession only has  not\tbeen\nissued under the\n\t\t\t\t\t\t\t 657\nfirst proviso to Section 38 of the State Act and it does not\nentitle the holders of DMS diploma to get themselves  regis-\ntered  as medical practitioner in modern medicine and  prac-\ntise modern medicine. Consequently, it does not suffer\tfrom\nthe same infirmity as the notification dated April 13, 1981.\n[668 G-H, 669 A-B]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3847 of
\n1983.\n<\/p>\n
     From the Judgment dated 14.10.1982 of the\tKerala\tHigh
\ncourt in O.P. No.3064 of 1981 C.\n<\/p>\n
     M.A. Firoz for the Appellant.\n<\/p>\n
     J.\t  Ramamurthy,  T.T.  Kunhikannan,  R.  Mohan,\tM.K.
\nNamboodry and  K.R. Nambiar [N.P.] for the Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     S.\t C.  AGRAWAL,  J. This appeal by  special  leave  is
\ndirected  against the judgment of the High Court  of  Kerala
\ndated  October 14, 1982. It raises the question relating  to
\nthe  validity  of  the first proviso to Section\t 38  of\t the
\nTranvancore-Cochin   Medical   Practitioners’\tAct,\t1953
\n(hereinafter  referred to as ‘the State Act’) and the  order
\ndated  September 28, 1978 and notification dated  April\t 13,
\n1981 issued by the Government of Kerala.\n<\/p>\n
\t  Section 38 of the State Act reads as under:\n<\/p>\n
\t “38.  Persons\tnot registered under this  Act\tetc.
\n\t not  to  practise:-  No person\t other\tthan  (i)  a
\n\t registered  practitioner  or  (ii)  a\tpractitioner
\n\t whose name is entered in the list of  practitioners
\n\t published under Section 30 or (iii) a\tpractitioner
\n\t whose\tname  is entered in the\t list  mentioned  in
\n\t Section  25  shall practise or\t hold  himself\tout,
\n\t whether  directly or by implication  as  practising
\n\t modern\t   medicine,   homoepathic   medicine,\t  or
\n\t ayurvedic   medicine,\tsiddha\tmedicine   or\tsuch
\n\t medicine  shall practise any other medicine  unless
\n\t he  is\t also  a  registered  practitioner  of\tthat
\n\t medicine:\n<\/p>\n
\t Provided  that the Government may, by\tnotification
\n\t in  the Gazette direct that this section shall\t not
\n\t apply to any person
\n\t\t\t\t\t\t       658<\/span>
\n\t or class of persons or to any specified area in the
\n\t State\t where\t none  of  the\tthree\tclasses\t  of
\n\t practitioners\tmentioned above carries\t on  medical
\n\t practice;\n<\/p>\n
\t     Provided  further that this section  shall\t not
\n\t apply\tto  practitioner eligible  for\tregistration
\n\t under this  Act who, after  having filed the appli-
\n\t cation\t for registration, is awaiting the  decision
\n\t of the appropriate council or of the Government  in
\n\t case of appeal.\n<\/p>\n
\t Provided  also\t that this section shall  not  apply
\n\t to  a practitioner eligible for registration  under
\n\t this\tAct   until  the   period   prescribed\t for
\n\t applications under Section 23 expires”.\n<\/p>\n
     The  University of Kerala awards a degree as well as  a
\ndiploma in Integrated Medicine known as DAM. By notification
\ndated  May 4, 1977 issued by the Government of Kerala  under
\nthe  first  proviso  to Section 38,  it\t was  directed\tthat
\nSection 38 of the Act shall not apply to the degree  holders
\nof  DAM\t and  diploma holders of DAM  in  practising  modern
\nmedicine  in the State. The Government of Bihar through\t the
\nBihar  State Board of Homoepathic Medicine awards a  Diploma
\nin Medicine and Surgery called DMS. By order dated September
\n28,  1978,  the Government of Kerala ordered that  the\tsaid
\ndiploma\t (DMS)\tawarded by the Government of Bihar  will  be
\nheld in par with the integrated DAM of Kerala University for
\npurpose of continuing in the profession only. The holders of
\nDMS  approached\t the Government with a request to  issue  of
\nnotification  similar to notification dated May 4,  1977  to
\nenable\tthem to practise Modern Medicine.  The said  request
\nwas earlier rejected by the Government but ultimately it was
\nacceded\t and a notification dated April 13, 1981 was  issued
\nby  the Government of Kerala in exercise of the\t power\tcon-
\nferred\tby the first proviso to Section 38 of the State\t ACt
\nwhereby\t it was directed that Section 38 shall not apply  to
\nholders\t of the DMS awarded by the Government of Bihar.\t The
\naforesaid notifications dated May 4, 1977 and April 13, 1981
\nand  order dated September 28, 1978 were challenged  by\t the
\nappellant  before the High Court of Kerala by filing a\tWrit
\nPetition under Article 226 of the Constitution. In the\tsaid
\nWrit  Petition it was submitted by the appellant that  after
\nthe  enactment\tof  the Indian\tMedical\t Council  Act,\t1956
\n(hereinafter  referred to as `the Central Act’), by  Parlia-
\nment the first proviso to Section 38 of the State Act, being
\nrepugnant and inconsistent with the provisions of Section 15
\nof the Central Act, has been rendered
\n\t\t\t\t\t\t       659<\/span>
\nvoid  and ineffective and the impugned notifications  having
\nbeen  issued in exercise of the power conferred by the\tsaid
\nproviso\t are also void and ineffective. The validity of\t the
\nfirst  proviso\tto  Section 38 of the  State  Act  was\talso
\nchallenged  by the appellant on the ground that it does\t not
\ncontain\t any guidelines for exercise of the power  conferred
\non the State Government and since it confers arbitrary power
\non the State Government it is violative of the provisions of
\nArticle 14 of the Constitution.\n<\/p>\n
     The  said\tWrit  Petition was contested  by  the  State
\nGovernment.  On\t behalf\t of  the  State\t Government  it\t was
\nsubmitted  that\t since\tDAM of Kerala  University  had\tbeen
\npermitted  practice of modern medicine, the  Government\t did
\nnot  see any reason why the holders of DMS of Bihar  Govern-
\nment should not practice and that the order dated  September
\n28,  1978  was passed by the Government\t after\tconsultation
\nwith the University of Kerala and the Director of Indigenous
\nSystems of Medicine and that due consideration was given  by
\nthe  Government\t to the allopathic subjects  taught  in\t the
\nBihar  DMS course. As regards the notification dated May  4,
\n1977 relating to DAM diploma holders and DAM diploma holders
\nof  Kerala University, it was submitted that  the  challenge
\nwas highly belated.\n<\/p>\n
     The  High\tCourt  did  not\t go  into  the\tvalidity  of
\nnotification dated May 4, 1977 relating to DAM degree  hold-
\ners  and DAM diploma holders for the reason that no one\t who
\nwould be affected by the invalidation of the said  notifica-
\ntion was before the Court and in absence of any such  person
\nbeing  impleaded  as a party to the Writ  Petition,  it\t was
\nneither\t permissible nor lawful for the Court to  adjudicate
\nupon  the said question. While considering the\tvalidity  of
\nthe other two notifications relating to DMS Diploma  holders
\nof  Bihar,  the High Court examined the\t provisions  of\t the
\nfirst  proviso to Section 38 in the light of the  provisions
\ncontained in  Section 15 of the Central Act.  The High Court
\nrejected the contention urged on behalf of the State Govern-
\nment  that the definition of medicine contained\t in  Section
\n2(f)  of the Central Act would take in both Homoepathic\t and
\nindigenous systems of medicine and held that the Central Act
\nconcerns itself with the allopathic medicine and the  modern
\nsystem\tthat is contemplated by it is the  allopathic  medi-
\ncine.  After  examining the enactments the  High  Court\t has
\nobserved  that\tthe State Act and the Central Act  are\tboth
\ncovered\t by Entry 26 in List III of the schedule VII to\t the
\nConstitution.  The  High Court,\t therefore,  considered\t the
\nquestion  whether  the first proviso to Section\t 38  of\t the
\nState Act was repugnant to Section 15 of the
\n\t\t\t\t\t\t       660<\/span>
\nCentral\t Act  in the light of the  provisions  contained  in
\nArticle\t 254 of the Constitution.  The High Court  has\theld
\nthat the Central Act does not lay down any qualification for
\nregistration  and all that Section 15 says is that a  person
\nwhose  name  is\t not seen in the State\tregister  shall\t not
\npractise medicine. The High Court has also pointed out\tthat
\nthe  proviso  to  Section 38 does not in terms\tsay  that  a
\nperson whose name is not on the rolls of the State  register
\nin one system can practise another system. According to\t the
\nHigh  Court the proviso only exempts practitioners who\twant
\nto  practice one system without being in the concerned\tlist
\nfrom the operation of Section 38. The High Court was of\t the
\nview that neither the Central Act nor the State Act contains
\nany  provision\twhich prohibits a person who  satisfies\t the
\nauthorities that he possesses the requisite qualification to
\npractise  two  systems from getting enrolled  on  two  State
\nrolls and a practitioner can be a registered practitioner in
\ntwo registers and the Central Act does not place an  embargo
\non  a State from recognising qualifications for the  purpose
\nof  two\t systems, due regard being given to  the  course  of
\nstudy  and  subjects taught, for such qualification  and  if
\nthat  is possible, nothing prevents a State Government\tfrom
\npermitting  a practitioner to be on two rolls. Although\t the
\nHigh Court found some repugnancy between the Central Act and
\nthe  State Act, it was of the view that the  repugnancy\t was
\nnot  one that was absolutely irreconcilable. The High  Court
\nnegatived the challenge to the validity of the first proviso
\nto Section 38 of the State Act on the ground to violation of
\nArticle\t 14  on\t the view that the power  conferred  by\t the
\nproviso vests in the State Government which is a  sufficient
\nsafeguard  against  arbitrary exercise of power.  Since\t the
\nvalidity  of the first proviso, Section 38 of the State\t Act
\nwas  upheld  the notification dated April  13,\t1981  issued
\nunder the said proviso was also upheld as valid by the\tHigh
\nCourt.\n<\/p>\n
     The  appellant is assailing the validity of  the  first
\nproviso\t to  Section 38 of the State Act on  the  ground  of
\nrepugnancy  under Article 254 (1) of the Constitution  which
\nprovides as under:\n<\/p>\n
\t  “254.\t  Inconsistency\t  between   laws   made\t  by
\n\t  Parliament  and laws made by the  Legislatures  of
\n\t States -(1)  if any provision of a law made by\t the
\n\t Legislature of a state is  repugnant to any  provi-
\n\t sion  of a law made by Parliament which  Parliament
\n\t is  competent to enact, or to any provision  of  an
\n\t existing  law\twith respect of one of\tthe  matters
\n\t enumerated in the Concurrent
\n\t\t\t\t\t\t\t 661<\/span>
\n\t  List,\t then, subject to the provisions  of  clause
\n\t  (2),\tthe law made by Parliament, ,whether  passed
\n\t  before or after the law made by the Legislature of
\n\t  such\tState, or, as the case may be, the  existing
\n\t  law,\tshall  prevail\tand  the  law  made  by\t the
\n\t  Legislature  of the State shall, to the extent  of
\n\t  the repugnancy, be void”.\n<\/p>\n
     In order that Article 254(1) may apply, two  conditions
\nmust be fulfilled:\n<\/p>\n
\t  “(1)\tThe  provisions of the\tProvincial  law\t and
\n\t those\tof the Central legislation must both  be  in
\n\t respect  of  a matter which is\t enumerated  in\t the
\n\t Concurrent   List, and (2) they must  be  repugnant
\n\t to  each  other.   It\tis  only  when\tboth   these
\n\t requirements are satisfied that the Provincial\t law
\n\t will,\tto  the\t extent of  the\t repugnancy,  become
\n\t void”.\n<\/p>\n
\t  A.S.\tKrishna v. State of Madras,<\/a> [1957]  SCR\t 399
\n\t  Hoechst  Pharmaceuticals  Ltd. & Another  etc.  v.
\n\t  State\t of Bihar & Others, [1983] 3 SCR 130.\n<\/p>\n
     In\t the  instant case the Central Act as  well  as\t the
\nState  Act  are\t both laws made in respect  of\tthe  medical
\nprofession  which  is a matter relating to Entry 26  of\t the
\nConcurrent List. The question is : Are the provisions of the
\nfirst  proviso to Section 38 of the State Act  repugnant  to
\nany provision of the Central Act? This question will have to
\nbe answered by applying the tests of repugnancy laid down by
\nthis Court. In Deep Chand v. The State of Uttar Pradesh\t and
\nOrs.,<\/a>  [1959] Suppl. 2 SCR 8, this Court has laid down\tthat
\nrepugnancy  between two statutes may be ascertained  on\t the
\nbases of the following principles:\n<\/p>\n
\t  (1)  Whether there is direct conflict between\t the
\n\t  two provisions;<\/p><\/blockquote>\n
\t  (2)  Whether\tParliament intended to lay  down  an
\n\t  exhaustive  code in respect of the subject  matter
\n\t  replacing the Act of the State Legislature; and
\n\t  (3) Whether the law made by Parliament and the law
\n\t  made\tby  the State Legislature  occupy  the\tsame
\n\t  field”. (P.43)
\n\t\t\t\t\t\t\t662<\/span>
\n     After considering the various decisions construing\t the
\nprovisions  of Article 254 this Court in M.  Karunanidhi  v.
\nUnion  of  India,<\/a>  [1979] 3 SCR 254,  the  Court  laid\tdown
\nfollowing propositions:\n<\/p>\n
\t  “1.  That  in\t order to  decide  the\tquestion  of
\n\t  repugnancy   it  must\t be  shown  that   the\t two
\n\t  enactments contain inconsistent and irreconcilable
\n\t  provisions, so that they cannot stand together  or
\n\t  operate in the same field.\n<\/p><\/blockquote>\n
\t  2.  That  there can be no  repeal  by\t implication
\n\t  unless  the inconsistency appears on the  fact  of
\n\t  the two statutes.\n<\/p><\/blockquote>\n
\t  3. That where the two statutes occupy a particular
\n\t  field,  there is room or possibility of  both\t the
\n\t  statutes  operating  in  the\tsame  field  without
\n\t  coming   into\t collision  with  each\t other,\t  no
\n\t  repugnancy results.<\/p><\/blockquote>\n
\t  4.  That  where there is no  inconsistency  but  a
\n\t  statute  occupying the same field seeks to  create
\n\t  distinct  and\t separate offences, no\tquestion  of
\n\t  repugnancy  arises and both the statutes  continue
\n\t  to operate in the same field”. [P.278]
\n     Keeping  in view these principles, we will examine\t the
\nprovisions of the State Act and the Central Act to ascertain
\nthe field of operation of the two enactments.\n<\/p>\n
     As\t indicated  in the Preamble the State Act is  a\t law
\nrelating to medical practitioners generally in the State  of
\nTravancore-Cochin  (now Kerala) and it has been\t enacted  to
\nregulate   the\tqualifications\tand  to\t provide   for\t the
\nregistration of the practitioners of modern medicine, homoe-
\npathic\tmedicine  and  indigenous medicine with\t a  view  to
\nencourage  the spread of such medicines. In Clause  (f)\t the
\nexpression  “modern medicine” is defined to mean  the  allo-
\npathic\tsystem of medicine. Clause (g) of Section 2  defines
\n“practitioner” to mean any person ordinarily engaged in\t the
\npractice  of  modern medicine or  homoeopathic\tmedicine  or
\nindigenous  medicine  as  the case may\tbe.  The  expression
\n“qualified  practitioner” has been defined in clause (i)  to
\nmean a qualification enumerated in the Schedule. The expres-
\nsion  “registered practitioner” has been defined  in  Clause\n<\/p>\n
(i)  of Section 2 to mean a practitioner whose name  is\t for
\nthe  time  being entered in a register.\t Under\tClause\t(k),
\n“register” means the
\n\t\t\t\t\t\t\t 663<\/span>
\nRegister of practitioners maintained under this Act. Section
\n3  makes  provisions for  establishment,  incorporation\t and
\nconstitution  of Council of Modern Medicine, the Council  of
\nHomoeopathic  Medicine and the Counsel of  Indigenous  Medi-
\ncine. Section 19 provides for appointment of a Registrar for
\neach  council and under Section 20(1) it is the duty of\t the
\nRegistrar  to  keep the registers. Section 20(2)  lays\tdown
\nthat there shall be separate registers for modern  medicine,
\nhomoeopathic  medicine, ayurvedic medicine, siddha  medicine
\nand  unani-tibbi medicine. Section 23 lays down\t the  condi-
\ntions of eligibility for registration of a practitioner\t and
\nevery  holder  of a recognised\tqualification  is  eligible.
\nSections 28 and 29 make provision for removal of the name of
\na  person from the register of practitioners. Section  31(1)
\nimposes a prohibition that no registered practitioner, other
\nthan a qualified registered practitioner who has not  under-
\ngone a course of practical training in surgery or obstetrics
\nunder modern medicine to the satisfaction of that  appropri-
\nate  council, shall practise surgery or obstetrics.  Section
\n47 empowers the State Government to alter the list of recog-
\nnised qualifications mentioned in the Schedule to the Act on
\nthe basis of the report of the appropriate Council. It would
\nthus be seen that the State Act governs the practitioners in
\nthe  various systems of medicine prevalent in the  State  by
\nestablishing  separate councils for each system to  regulate
\nthe registration of such practitioners and also by prescrib-
\ning  the qualifications which shall be recognised  for\tsuch
\nregistration.\n<\/p>\n
     The  Central Act has been enacted to  provide  for\t the
\nreconstitution\tof  the\t Medical Council of  India  and\t the
\nmaintenance  of medical register for India and\tfor  matters
\nconnected therewith. The expression “medicine” is defined in
\nClause\t(f) of Section 2 to mean modern scientific  medicine
\nin  all\t its branches including surgery and  obstetrics\t but
\nexcluding veterinary medicine and surgery. In Clause (h) the
\nexpression  “recognised\t medical  qualification”  has\tbeen
\ndefined\t to mean any of the medical qualifications  included
\nin  the Schedules. “State Medical Council” has been  defined
\nin  Clause (j) to mean a medical council  constituted  under
\nany law for the time being in force in any state  regulating
\nthe  registration of practitioners of medicine.\t Clause\t (k)
\ndefines\t  “State  Medical  Register”  to  mean\ta   register
\nmaintained under any law for the time being in force in\t any
\nState regulating registration of practitioners of  medicine.
\nSection\t 3  provides  for the constitution  of\tthe  Medical
\nCouncil of India Sections 11 to 14 deal with recognition  of
\nmedical qualifications granted by universities or medical
\n\t\t\t\t\t\t       664<\/span>
\ninstitutions  in  India as well as by  medical\tinstitutions
\noutside\t India. Section 15 enables a person  possessing\t the
\nmedical\t qualifications\t included  in  the  Schedule  to  be
\nenrolled  on any State Medical Register and it\tprohibits  a
\nperson\tother  than  a medical practitioner  enrolled  on  a
\nState Medical Register to practise medicine in any State.\n<\/p>\n
     Section 16 prescribes that every university or  medical
\ninstitution   in  India\t which\tgrants\trecognised   medical
\nqualification  shall furnish such information as the  Indian
\nMedical\t Council  may from time to time require\t as  to\t the
\ncourse of study and examinations to be undergone in order to
\nobtain\tsuch  qualification, as to the ages  at\t which\tsuch
\ncourse\tof  study  and\texaminations  are  required  to\t  be
\nundergone and such qualification is conferred and  generally
\nas  to\tthe  requisites for  obtaining\tsuch  qualification.
\nSection\t  17  provides\tfor  the  appointment\tof   medical
\ninspectors  for\t inspection  of\t any  medical\tinstitution,
\ncollege,   hospital  or\t other\tinstitution  where   medical
\neducation is given. Under Section 18 the Medical Council  of
\nIndia has been empowered to appoint visitors to inspect\t any
\nmedical\t institution, college hospital or other\t institution
\nwhere  medical education is given or attend any\t examination
\nheld  by  any  university or  medical  institution  for\t the
\npurpose\t  of  granting\trecognised  medical   qualification.
\nSection\t 19  provides  for withdrawal of  recognition  of  a
\nmedical qualification by the Central Government on the basis
\nof  the representation by the Medical Council. Section\t19-A
\nempowers  the  Medical\tCouncil of India  to  prescribe\t the
\nminimum\t  standards  for  medical  education  required\t for
\ngranting   recognised\tmedical\t  qualifications   by\t the
\nuniversities or medical institutions in India. Section\t20-A
\nempowers  the  Medical\tCouncil of India  to  prescribe\t the
\nstandards  of professional conduct and etiquette and a\tcode
\nof  ethics  for\t  medical practitioners.  Section  21  makes
\nprovision for maintaining a register of medical\t practition-
\ners  known as the Indian Medical Register, which shall\tcon-
\ntain  the  names of all persons who are for the\t time  being
\nenrolled  on any State Medical Register and who possess\t any
\nof  the\t recognised medical  qualifications.  Section  34(1)
\nprovides for removal of the name of a person from the  India
\nMedical Register if his name has been removed from the State
\nMedical\t Register in pursuance of any power conferred by  or
\nunder  any law relating to registration of  medical  practi-
\ntioners for the time being in force in any state. Section 27
\nprovides that every person whose name is for the time  being
\nborne  on  the\tIndian Medical Register\t shall\tbe  entitled
\naccording  to  his qualification to practise  as  a  medical
\npractitioner in any part of India.\n<\/p>\n
\t\t\t\t\t\t       665<\/span><\/p>\n
     The  High Court, in our opinion, has rightly held\tthat
\nthe expression ‘modern scientific medicine’ in Section\t2(f)
\nof the Central Act refers to the Allopathic system of  medi-
\ncine  and that the provisions of the Central Act  have\tbeen
\nmade  in relation  to medical practitioners  practising\t the
\nsaid  system.  This view finds support from  the  fact\tthat
\nafter  the  enactment  of the Central  Act,  Parliament\t has
\nenacted\t the  Indian Medicine Central Council Act,  1970  in
\nrelation to the system of Indian medicine commonly known  as
\nAyurveda, Siddha and Unani and the Homeopathy Central  Coun-
\ncil Act, 1973 in relation to homoepathic system of  medicine
\nwherin provisions similar to those contained in the  Central
\nAct have been made in relation to the said systems of  medi-
\ncine.\n<\/p>\n
     From the provisions of the State Act, noticed  earlier,
\nit  is evident that the field of operation of the State\t Act
\ncovers\tall  the systems of  medicine,\tnamely,\t allopathic,
\nayurvedic, siddha, unani and homoepathic system of medicine.
\nMoreover   the\t State\tAct  deals   with   recognition\t  of
\nqualifications\trequired for registration of a person  as  a
\nmedical\t practitioner  in  these  systems,  conditions\t for
\nregistration  of  medical practitioners and  maintenance  of
\nregister   of\tpractitioners  for  each  system   and\t the
\nconstitution  of  separate  councils  for  modern  medicine,
\nhomoepathic medicine and indigenous medicine. As compared to
\nthe State Act, the field of operation of the Central Act  is
\nrestricted  and it is confined in its application to  modern
\nscientific  medicine,  namely,\tthe  allopathic\t system\t  of
\nmedicine  only,\t wherein also it deals with  recognition  of
\nmedical\t qualifications\t which may entitle a  person  to  be
\nregistered  as a medical practitioner, constitution  of\t the
\nMedical Council of India to advise the Central Government in
\nthe  matter of recognition or withdrawal of  recognition  of
\nmedical\t qualifications, to prescribe the minimum  standards
\nof medical education required for granting recognised  medi-
\ncal  qualifications by universities or medical\tinstitutions
\nin India and to appoint inspectors and visitors for  inspec-
\ntion  of  any medical institution, college or  hospital.  It
\nalso  provides for maintaining the Indian  Medical  Register
\nand for enrolment of a person possessing recognised  medical
\nqualification  in  the said register and for  removal  of  a
\nperson from the said register. The Central Act does not deal
\nwith the registration of medical practitioners in the States
\nand it proceeds on the basis that the said registration\t and
\nthe maintenance of State Medical Register is to be  governed
\nby the law made by the State. It cannot, therefore, be\tsaid
\nthat the Central Act lays down an exhaustive code in respect
\nof  the subject matter dealt with by the State Act. It\tcan,
\nhowever,
\n\t\t\t\t\t\t       666<\/span>
\nbe said that the Central Act and the State Act, to a limited
\nextent\toccupy the same field, viz., recognition of  medical
\nqualifications\twhich  are  required  for  a  person  to  be
\nregistered  as\ta  medical practitioner\t in  the  allopathic
\nsystem\tof medicine. Both the enactments make provision\t for
\nrecognition   of   such\t qualifications\t  granted   by\t the
\nuniversities  or  medical institutions. The  third  test  of
\nrepugnancy  laid  down\tin Deep\t Chand’s  case\t(supra)\t is,
\ntherefore,  satisfied. Since the grievance of the  appellant
\nis confined to the first proviso to section 38 of the  State
\nAct,  we would examine whether the provisions of  the  First
\nProviso\t to  Section 38 of the state Act,  are\tinconsistent
\nwith any of the provisions of the central Act and whether it
\nis possible to reconcile the provisions of the First Proviso
\nto  Section 38 of the State Act with the provisions  of\t the
\nCentral Act. The main part of Section 38 prohibits a  person
\nother than those mentioned in the three categories specified
\ntherein,  namely,  (i) a registered practitioner or  (ii)  a
\npractitioner  whose  name is entered in the  list  published
\nunder  Section\t30  or (iii) a practitioner  whose  name  is
\nentered\t in the list published under Section 25 to  practise
\nor  to hold himself out, Whether by directly or by  implica-
\ntion,  as practising modern medicine, homoepathic  medicine,
\nayurvedic medicine, siddha medicine or unani-tibbi  medicine
\nand it further lays down that no person who is not a  regis-
\ntered practitioner of such medicine shall practice any other
\nmedicine unless he is also a registered practitioner in that
\nmedicine.  In other words, the main part of Section  38\t in-
\nsists  upon compliance with the requirements of\t the  provi-
\nsions of the State Act prescribing the conditions for regis-
\ntration\t as a medical practitioner which includes holding  a
\nrecognised  qualification, i.e., a qualification  enumerated
\nin the schedule to the State Act, in respect of a particular
\nsystem of medicine in which he wishes to practise. The first
\nproviso\t to Section 38 enables the State Government to\tdis-
\npense  with the requirements of the main part of Section  38
\nin relation to any person or class of persons or in relation
\nto  any specified area in the State where none of the  three
\nclasses of practitioners mentioned above carries on  medical
\npractice. As a result a person can be permitted to  practise
\nas  a medical practitioner even though he does\tnot  possess
\nthe  recognised\t qualifications which are  necessary  for  a
\nperson\tto  be\tregistered as a medical\t practitioner  in  a
\nparticular  system of medicine. This provision in so far  as
\nit  relates to the allopathic system of medicine, runs\tcon-
\ntrary to the provisions of the Central Act. Under S.11(1) of
\nthe  Central Act Medical qualifications granted by any\tuni-
\nversity\t or medical institution in India which are  included
\nin the First
\n\t\t\t\t\t\t       667<\/span>
\nSchedule  of the said Act alone are the\t recognised  medical
\nqualifications and under Section 11(2) a medical  qualifica-
\ntion  granted  by any university or medical  institution  in
\nIndia  which  is not included in the First Schedule  can  be
\nincluded in the said Schedule by the Central Government by a
\nnotification  in the Official Gazette after  consulting\t the
\nMedical\t Council of India. Similar provisions are  contained
\nin Section 12 in relation to medical qualifications  granted
\nby  medical  institutions outside India in  connection\twith
\nwhich there is a scheme of reciprocity which  qualifications
\nare included in the Second Schedule and Section 13  relating
\nto medical qualifications granted by medical institutions in
\nIndia  or outside India which are included in Part I and  II
\nof the Third Schedule. Section 14 contains a special  provi-
\nsion  empowering the Central Government\t after\tconsultation
\nwith  the  Medical Council of India to give  recognition  to
\nmedical\t qualifications granted by medical  institutions  in
\nany  country outside India in respect of which a  scheme  of
\nreciprocity  for the recognition of such medical  qualifica-
\ntion is not in force. Section 15(1) entitles a person having
\nrecognised  medical  qualification under the Act to  be\t en-
\nrolled\tin  any state medical register. Under  sub-s.(2)  of
\nsection\t 15  no\t person other than  a  medical\tpractitioner
\nenrolled on a State medical register shall practise medicine
\nin any State. The object underlying these provisions in\t the
\nCentral Act is that a person possessing a recognised medical
\nqualification alone is entitled to be registered as a  medi-
\ncal  practitioner  and it is the  Central  Government  alone
\nwhich  can declare a particular medical qualification  as  a
\nrecognised  medical  qualification in  accordance  with\t the
\nprovisions  contained in Section 11 to 14 of the Act.  More-
\nover the Central Act, in Section 19-A, empowers the  Medical
\nCouncil\t of  India  to prescribe the  minimum  standards  of
\nmedical education required for granting\t recognised  medical
\nqualifications\tby universities or medical  institutions  in
\nIndia.\tSection 16, 17 and 18 confer powers on\tthe  Medical
\nCouncil of India to keep an eye on the imparting of  medical
\neducation  by the universities and medical  institutions  in
\nIndia  and to appoint inspectors and visitors for that\tpur-
\npose. Section 19 enables the Central Government to  withdraw
\nthe  recognition to a medical qualification on the basis  of
\nthe  representation by the Medical Council of  India.  These
\nprovisions  indicate  that in enacting the Central  Act\t the
\nintention  of  Parliament was to ensure\t that  only  persons
\nhaving adequate knowledge of the allopathic system of  medi-
\ncine are able to practise medical profession.\n<\/p>\n
\t\t\t\t\t\t       668<\/span><\/p>\n
     We are, therefore, unable to agree with the view of the
\nHigh  Court  that  the Central Act does\t not  lay  down\t the
\nqualifications\tfor registration of a medical  practitioner.
\nWe  may\t in this context refer to sub-s.(1)  of\t Section  15
\nwhich postulates the holding of a recognised medical  quali-
\nfication  by  a\t person for being registered  in  the  State
\nMedical Register so as to entitle to practise modern  scien-
\ntific  medicine\t in the state and sub-s.(1)  of\t Section  21
\nwhich  provides\t that the Indian Medical  Register  that  is
\nrequired  to be maintained by the Medical Council  of  India
\nshall contain the name of persons who are for the time being
\nenrolled  in the State Medical Register and who possess\t any
\nof  the recognised medical qualifications. These  provisions
\ncontemplate that a person can practise in allopathic  system
\nof medicine in a state or in the country only if he possess-
\nes  a recognised medical qualification. Permitting a  person
\nwho does not possess the recognised medical qualification in
\nthe  allopathic system of medicine would be in\tdirect\tcon-
\nflict with the provisions of the Central Act. We are, there-
\nfore,  of the view that the first proviso to Section  38  of
\nthe State Act in so far as it empowers the State  Government
\nto permit a person to practise allopathic system of medicine
\neven  though  he  does not possess  the\t recognised  medical
\nqualifications\tfor that system of medicine is\tinconsistent
\nwith  the provisions of Section 15 & 21 read  with  Sections
\n11- 14 of the Central Act. The said proviso suffers from the
\nvice  of repugnancy in so far as it covers persons who\twant
\nto  practice the Allopathic system of medicine\tand is\tvoid
\nto the extent of such repugnancy. Practitioners in allopath-
\nic system of medicine  must, therefore, be excluded from the
\nscope  of the first proviso and it must be confined  in\t its
\napplication to systems of medicines other than the Allopath-
\nic  system of medicine. We, however, wish to make  it  clear
\nthat  we  have not considered the impact of  the  provisions
\ncontained in the Indian\t medicine Central Council Act,\t1970
\nand the Homoeopathy Central Council Act, 1973 on the  provi-
\nsions of the said proviso to Section 38 of the State Act.\n<\/p>\n
     The  notification dated April 13, 1981 has been  issued
\nunder  the first proviso to Section 38 and in express  terms
\nit enables holders of DMS diploma of Government of Bihar  to
\npractise  modern medicine in the State of Kerala  and  makes
\nthem  eligible for registration as practitioners  in  modern
\nmedicine.  Since  the scope of the first  proviso  has\tbeen
\nrestricted  to\texclude the system of modern  medicine,\t the
\nsaid notification cannot be
\n\t\t\t\t\t\t       669<\/span>
\nupheld\tand must be set aside. The same, however, cannot  be
\nsaid  with regard to Order dated September 20, 1978  whereby
\nthe  DMS  diploma awarded by Government of Bihar  is  to  be
\ntreated\t at  par with Integrated DAM of\t the  University  of
\nKerala for the purpose of continuing in profession only. The
\nsaid  order has not been issued under the first\t proviso  to
\nSection\t 38 of the State Act and it cannot be said  that  it
\nentitles  the  holders\tof DMS\tdiploma\t to  get  themselves
\nregistered  as medical practitioners in modern medicine\t and
\npractise modern medicine. The said order dated September 20,
\n1978, does not suffer from the same infirmity as the notifi-
\ncation dated April 13, 1981.\n<\/p>\n
     In\t the  result,  the appeal  is  partly  allowed.\t The
\njudgment and order of the High Court of Kerala dated October
\n14,  1982  is set aside and the Writ Petition filed  by\t the
\nappellant  is  allowed to the extent that  the\tnotification
\n(Ex.P8)\t dated\tApril 13, 1981 is quashed. No  order  as  to
\ncosts.\n<\/p>\n
T.N.A\t\t\t\t       Appeal partly allowed\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dr. A.K. Sabhapathy vs State Of Kerala And Ors on 22 April, 1992 Equivalent citations: 1992 AIR 1310, 1992 SCR (2) 653 Author: S Agrawal Bench: Agrawal, S.C. (J) PETITIONER: DR. A.K. SABHAPATHY Vs. RESPONDENT: STATE OF KERALA AND ORS. DATE OF JUDGMENT22\/04\/1992 BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-234972","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDr. A.K. 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