TaxTMI 
TaxTMI 
2007 (5) TMI 627
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....g prayers were made: (a) the declaration that the non-graduate Veterinary Practitioners who are registered under the Maharashtra Veterinary Practitioners Act, 1971 (for short to be referred as "the State Veterinary Act") are eligible to practice Veterinary medicine in the same manner and on such conditions as they were prior to coming into force of the Indian Veterinary Councils Act, 1984 ("Central Veterinary Act" for short) in the State of Maharashtra; (b) to declare that non-graduate Veterinary Practitioners who are eligible to be registered under the State Veterinary Act will be permitted to practice Veterinary medicine in the same manner and on such conditions as they were prior to the coming into force of the Central Veterinary Act in the State of Maharashtra; and (c) for directions to renew the registration of non-graduate Veterinary Practitioners in the register maintained by the State Council under the State Veterinary Act til the coming into force of the Central Veterinary Act. 4. The Writ Petition under Article 32 of the Constitution of India has been filed by the petitioners representing similarly placed veterinary practitioners from several....
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.... (f) "register" means a register maintained under this Act; (g) "registered veterinary practitioner" means a person whose name is for the time being duly registered in a register;" 8. Section 3 provides for the establishment of the Central Council and the State Councils. 9. Sections 15, 22, 23, 30 and 67 of the Central Act read as under: "15. (1) The veterinary qualifications granted by any veterinary institution in India which are included in the First Schedule shall be recognised veterinary qualifications for the purposes of this Act, (2) Any veterinary institution in India, which grants a veterinary qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised and the Central Government, after consulting the Council, may, by notification in the Official Gazette amend the First Schedule so as to include such qualification therein and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such veterinary qualification declaring that it shall be a recognised veterinary qualification only when granted after a specified date. ....
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....ithout delay of all additions, and other amendments in the State veterinary register made from time to time. 30. Right of persons who are enrolled on the Indian veterinary practitioners register.-- No person, other than a registered veterinary practitioner, shall-- (a) hold office as veterinary physician or surgeon or any other like office (by whatever name called) in Government or in any institution maintained by a local or other authority; (b) practise veterinary medicine in any State : Provided that the State Government may, by order, permit a person holding a diploma or certificate of veterinary supervisor, stockman or stock assistant (by whatever name called) issued by the Directorate of Animal Husbandry (by whatever name called) of any State or any veterinary institution in India, to render under the supervision and direction of a registered veterinary practitioner, minor veterinary services. Explanation.-- "Minor veterinary services" means the rendering of preliminary veterinary aid, like, vaccination, castration, and dressing of wounds, and such other types of preliminary aid or the treatment of such ailments as the State Government may, by notifi....
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.... reciprocity of registration has been arranged with such Council, be entitled to be registered under this Act, on making an application in that behalf, on payment of a fee of Rs. 15 and on his informing the Registration Officer or the Registrar, as the case may be, of the date of his registration under the said law and on giving a correct description of his qualifications with the dates on which they were granted. (4) Any person who has been convicted of a cognizable offence as defined in the Code of Criminal Procedure, 1898, or who, being or having been subject to military law has been convicted under the Army Act or under the Indian Army Act, 1911 or under the Army Act, 1950, of an offence which is also a cognizable offence as so defined and any person who after due enquiry has been held guilty by the Council of infamous conduct in any professional respect may be refused registration under this Act. 19. No person shall, except with the sanction of the State Government, hold any appointment for the performance of veterinary duties in any veterinary dispensary, hospital or infirmary which is not supported entirely by voluntary contributions or which belongs to a l....
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....titling him for registration. (2) The State Government may, after consulting the Registration Officer or the Council, as the case may be, permit the registration of any person who has been actually conducting veterinary practice in the State of Maharashtra on such conditions as may be provided for by regulations made for this purpose, notwithstanding the fact that he may not be possessing qualifications entitling him to have his name entered in the register." 14. Section 23 of the 1971 Act contained an identical provision which is in pari materia with the provisions of the 1953 Act. Section 26 empowers the Council to call for information and attend examination. Section 33 provided for control in the following terms: "33. If it shall appear to the State Government on the report of the Council or otherwise, that the course of study and examinations prescribed by any of the institutions specified in column 1 of the Schedule conferring the qualifications described in column 2 of that Schedule with their abbreviations specified in column 3 thereof are not such as to secure the possession by persons obtaining such qualifications of the requisite knowledge and skill for the ef....
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.... formation of the State of Maharashtra and who is actually conducting practice in the State of Maharashtra, since then: or (ii) Prescribed or recognized by the Government of Maharashtra from time to time, after the formation of the State of Maharashtra and who is actually conducting practice in the State of Maharashtra, since then, for eligibility for appointment to a post of Livestock Supervisor, Stockmen, Stockmen-cum-Health Assistant or Veterinary Assistant: or (b) Shall have at the time of registration, practical experience for a period of not less than ten years in compounding and dispensing under any registered veterinary practitioners possessing a degree in veterinary science of a statutory University." 17. Similar legislations were existing in many other States. 18. Although the Central Act came into force in 1984, several States did not adopt the same. On or from 1997, the Central Act was made applicable to the States of Haryana, Bihar, Orissa, Himachal Pradesh and Rajasthan and all Union Territories. 19. The State of Maharashtra issued a notification dated 26th August, 1997 in terms of Section 30 of the Central Act specifying minor veterinary se....
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.... 23. Section 6 of the General Clauses Act, it was urged, would have no application in a situation of this nature inasmuch as the very fact that the Central Act intended to bring about a new situation, the same would ipso facto be a pointer to the fact that both the Central Act and the State Act cannot stand together. 24. The Division Bench of the Bombay High Court, by reason of the impugned judgment, has upheld the contention of the respondents herein. It, however, opined that relief (c) prayed for by the writ petitioners before it, in view of the notification issued on 1st August, 1997 in terms whereof the Central Act had been introduced in the State of Maharashtra with effect from the first day of August, 1997, did not survive. It furthermore held that in view of the provisions of Sub-section (1) of Section 23 of the Central Act as existing veterinary practitioners whose names appeared in the register part I maintained by the State Veterinary Council are duly protected, relief (a) as reproduced hereinbefore would be covered thereby. 25. Before us Mr. R.F. Nariman, learned senior counsel advanced arguments on behalf of the appellants in Civil Appeal arising out of SLP (C) ....
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....lause (1) of Article 19 of the Constitution of India confers a fundamental right to protect any profession or to carry on any occupation, trade or business. Clause (6) of Article 19 reads as under: "19. Protection of certain rights regarding freedom of speech, etc. (1) **** (2) **** (3) **** (4) **** (5) **** (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, - (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of c....
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....lage veterinary chests). Second Schedule (9) Village Veterinary Chests. (10) Veterinary Aid Centres." 34. It is somewhat interesting to note that even in terms of the 1953 Act, there was no provision for allowing a diploma holder to practice. 35. The validity of a statute would ordinarily be tested keeping in view the social conditions as were existing on the date of coming into force thereof. It is one thing to say that a law causes hardship to a section of the people but it is another thing to say that the same would be unconstitutional. It may be that with the passage of time, a statute which was intra vires on the date of coming into force of the Act may be considered to be ultra vires. However, for that there should be sufficient materials which are either brought on record or of which the court can take judicial notice. The difficulty would arise where the materials brought on record may provide for divergent views. In such a situation, the court will not ordinarily exercise its power of judicial review over legislation. The facts on the basis whereof the Legislature of a State or the Parliament had chosen to rely upon should be the guiding fa....
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....ision of this Court in State of Madras v. V.G. Row [(1952) SCR 597] wherein it was stated: "15. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for....
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....)(g) is concerned." 43. The position of law has since been consistently reiterated in M/s. Orient Paper and Industries Ltd. and another etc. v. State of Orissa and others [AIR 1991 SC 672], State of Tamil Nadu and Ors. v. L. Abu Kavur Bai and Ors. [AIR 1984 SC 326], Tinsukhia Electric Supply Co. Ltd. v. State of Assam and others [(1989) 3 SCC 709], Utkal Contractors and Joinery (P) Ltd. and Ors. v. State of Orissa [AIR 1987 SC 2310], Rasbihari Panda and Ors. v. The State of Orissa [AIR 1969 SC 1081], Amritsar and Ors. v. State of Punjab and Ors. [AIR 1969 SC 1100], etc. 44. In Dr. Mukhtiar Chand and Others v. State of Punjab and Others [(1998) 7 SCC 579] this Court primarily dealt with the right to practice the medical profession as also the related question of right to well being of a person as being part of life. In exercise of the power under Rule 2(ee)(iii) of the Drugs and Cosmetics Rules, 1945 the State of Punjab had issued a Notification 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 P....
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....ner is registered. But she has strenuously argued that the right which the holders of a degree in integrated courses of Indian medicine are claiming is to have their prescription of allopathic medicine honoured by a pharmacist or a chemist under the Pharmacy Act and the Drugs Act. This argument is too technical to be acceded to because prescribing a drug is a concomitant of the right to practise a system of medicine. Therefore, in a broader sense, the right to prescribe drugs of a system of medicine would be synonymous with the right to practise that system of medicine. In that sense, the right to prescribe an allopathic drug cannot be wholly divorced from the claim to practise allopathic medicine." 47. Such is not the case here. 48. Furthermore, the Central Act is flexible. It not only recognizes the degrees granted by the institutions recognized by it, it provides extension of grant of such recognition to other institutions also if they satisfy the tests. Undoubtedly, such a flexible situation has been created by reason of the Central Act only to meet the exigencies of the situations arising in future, if any. 49. It is not for this Court to arrive at a conclusive opinio....
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....ification is laid down by a law within the meaning of Sub-clause (g) of Clause (1) of Article 19 of the Constitution of India, the same would come into effect. In other words, it would act prospectively and, thus, not retrospectively, inasmuch as the practice he had already enjoyed is not taken away. 55. In Delhi Pradesh Registered Medical Practitioners v. Director of Health, Delhi Admn. Services and Others [(1997) 11 SCC 687], this Court rejected a similar contention to the effect that only because the practitioners got their names registered in the discipline of Ayurveda, they would have a right to practice in such discipline as registered medical practitioners, and the privileges which a registered practitioner has stood protected by sub- section (3) of Section 17 of the Indian Medicine Central Council Act, 1970 stating: "5. We are, however, unable to accept such contention of Mr Mehta. Sub-section (3) of Section 17 of the Indian Medicine Central Council Act, 1970, in our view, only envisages that where before the enactment of the said Indian Medicine Central Act, 1970 on the basis of requisite qualification which was then recognised, a person got himself registered ....
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....lf of the petitioners that there exists an inconsistency insofar as whereas under the Central Act only the degree holders are entitled to be enrolled in the register maintained by the Central Council; the State Act recognizes the diploma and certificate holders also. 60. Veterinary services in terms of the Central Act is in two parts (1) veterinary services and (2) minor veterinary services. What would be the minor veterinary services has been laid down by reason of a notification issued by the respective State Governments in exercise of their power under clause (b) of Section 30 of the Central Act. Once such a notification has been issued, indisputably, those who are not otherwise entitled to resort to veterinary practices within the meaning of the Central Act can be asked to perform the jobs of minor veterinary services. 61. A distinction exists between a repeal simpliciter and a repeal by an Act which is substituted by another Act. 62. This legal position operating in the field is clear from the proposition laid down by a Constitution Bench of this Court in State of Punjab v. Mohar Singh [(1955) 1 SCR 893] wherein the law has been laid down in the following terms: ....
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....iterate them altogether. 74. On the touchstone of the principles of law culled out from the judgments of various courts applied to the facts of these cases lead to a definite conclusion that the Assistant Commissioner (Commercial Taxes), Warangal Division was fully justified in initiating and completing the proceedings under the A.P. GST Act even after it is repealed." 64. Yet again in India Tobacco Co. Ltd. v. Commercial Tax Officer, Bhavanipore and Others [(1975) 3 SCC 512], this Court held: "16. It is now well-settled that repeal connotes abrogation or obliteration of one statute by another, from the statute book as completely as if it had never been passed; when an Act is repealed, it must be considered (except as to transactions past and closed) as if it had never existed. (Per Tindal, C.J., in Kay v. Goodwin and Lord Tenterdon in Surtees v. Ellison cited with approval in State of Orissa v. M.A. Tulloch & Co.). 17. Repeal is not a matter of mere form but one of substance, depending upon the intention of the legislature. If the intention indicated expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former....
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....the same approach should be adopted to the interpretation of 'right,' 'obligation,' or 'liability' in s.16 of the Act of 1978. The section clearly contemplates that there will be situations where an investigation, legal proceeding or remedy may have to be instituted before the right or liability can be enforced and this supports this approach." 67. Whether such a right is protected or not must be considered having regard to the statute in question. If a right has crystallized before the repealing Act comes into force, by reason of repeal of the earlier statute indisputably the right crystallized cannot be taken away. 68. Section 17(1) of the Interpretation Act, 1978 provided that where an Act repeals a previous enactment and substitutes new provisions for the enactment repealed, the repealed enactment remains in force until the substituted provisions come into force. 69. We are not beset with such a situation in the instant case. The right of the petitioners to practise in the field of veterinary practice has expressly been taken away. When such a right has been taken away upon laying down an essential qualification therefor which the petitioners ad....
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....arashtra Zilla Parishads and Panchayat Samities Act, 1961 confers the responsibility of providing veterinary services on the Zilla Parishads and Panchayat Samities. Nothing has been shown to us that any person could start practice in veterinary services without getting himself registered. Hence, in our opinion, the answer to the said question appears to be in the negative inasmuch as a legislative act must be read with the regulations framed. A subordinate legislation, as is well known, when validly framed, becomes a part of the Act. 75. Regulation 3 provides for the mode and manner in which registration of a medical practitioner has to be carried out. The 1973 Act was enacted for registration of veterinary practitioners. Section 23 must be read in that context. The Act also does not provide for carrying on any profession as such. It is difficult to assume that practice in veterinary service would be wholly unregulated despite the preamble of the Act. 76. Regulation 3 encompasses within its fold both the categories, viz., practitioners as also the employees. 77. The necessity to maintain a register cannot be minimized unless the name of a person is placed on the register. ....