TaxTMI 
TaxTMI 
2007 (5) TMI 627
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....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 States and Union Territories of India against the Union of India ....
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.... 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. 22. Minimum standards of veterinary education.-- (1) The Council may, by regulations, specify the minimum standards of veterinary education req....
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....ther 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 notification in the Official Gazette, specify in this behalf; (c) be entitled to sign or authenticate a veterinary health certificate or any other certificate required by any law to be signed or authenticated by duly qualified veterinary....
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.... 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 local authority or in any public establishment, body or institution, unless he is registered under this Act. 24 Notwithstanding anything contained in any law for the time being in force, no person other than a person registered under Part IV of this Act (a) shall sign or authenticate any veteri....
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....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 efficient practice of their profession, or 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 institution conferring a qualification not entered in the Schedule are such as to secure the possession by persons obtaining such qualification of the requisite knowledge and....
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....ealth 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 services to be rendered by the Veterinary Science Certificate or Diploma holders in the Government Service or in Semi-Government organizations. 20. The contention of the writ petitions inter alia is that having regard to the fact that the veterinary practitioners who were possessing 'diploma in veterinary science' or 'certificate in veterinary science' which were recognized by the State of Maharahstra and some other States they ....
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....ein. 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) No. 11880 of 2006 whereas Mr. U.U. Lalit, learned senior counsel appeared on behalf of the writ petitioners in the writ petition. 26. The submission of the learned counsel is that Section 67 of the Central Act must be read in two parts. By reason of the first part, it is conceded that the State Act stands repealed, but it is contended that once the first part of Section 67 comes into force, by reason of the second part, Section 6 of the General Clauses A....
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.... 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 citizens or otherwise." 29. The above provision is in two parts. It empowers Parliament and the State Legislature to impose reasonable restrictions on the exercise of the right conferred by the sub-clause (g) of Clause (1) of Article 19 of the Constitution of India in the interest of the general public. The second part of the said provision provides that in particular nothing therein shall affect the operation of an existing law insofar as it relates to or prevents the State from making any law inter alia relating to ....
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.... 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 factor. The Legislature of Executive can have several choices or options to deal with a matter, and courts cannot say which choice or option should have been preferred. 36. Before us, the Union of India as also the various States including the State of Maharashtra, have placed certain facts. According to the State Governments, despite coming into force of the Central Act they had not opted therefor, immediately as they had to make a detailed study of the applicability thereof in the fact situation obtaining in that particular State. We may by way of example consider the ma....
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....ng 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 all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable." 40. The tests laid down therein, viz., the test of reasonableness as also general public interest, however, may not ipso facto apply in a case involving Clause (6) of Article 19 of the Constitution of India. 41. Here we may deal with the extent of judicial review permissible under Article 19(6). It was observed in Saghir Ahmad v. The State of U.P. and Ors., AIR 1954 SC 728 by Mukherjea, J. at p. 727 in the following terms:....
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....rs 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 Practitioners Act, 1963 as persons practising modern System of Medicine for purposes of the Drugs Act. The aforementioned rule defined "Registered Medical Practitioner". A medical practitioner who was registered with the Board of Ayurvedic and Unani System of Medicines, Punjab, and was practising modern system of medicines was served with an order prohibiting him from keeping in his possession any allopathic drug for administration to patients and further issuing general direction to the chemists not to issue allopathic drugs to any patient on the prescription of the said doctor. The medical Practitioner in res....
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....annot 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 opinion that the rural areas continue to be heavily dependant on the certificate holders for providing essential veterinary services as was submitted on behalf of the petitioners. The State is presumed to know the needs of the citizens. 50. Our attention has been drawn to a Constitution Bench decision of this Court in Akadasi Padhan v. State of Orissa and Others [AIR 1963 SC 1047 : 1963 Supp (2) SCR 691] wherein two extreme positions were taken by the learned counsel for the parties. In the said decision, the court was dealing with the right of a State to create a State monopoly in the kendu leaves. Whereas the contention of the learned A....
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....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 as medical practitioner in the disciplines contemplated under the said Act or in the absence of any requirement for registration such person had been practising for five years or intended to be registered and was also entitled to be registered, the right of such person to practise in the discipline concerned including the privileges of a registered medical practitioner stood protected even though such practitioner did not possess requisite qualification under the said Act of 1970. It may be indicated that such view of ours is reflected from the Objects and Reasons indicated for introducing sub-section (3) of Section 17 in the Act." 56. Noticing the ob....
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....re 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: "... Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot....
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....d, 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 enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by super- adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal (see Craies on Statute Law, 7th Edn. pp. 349, 353, 373, 374 and 375; Maxwells Interpretation of Statutes, 11th Edn. pp. 164, 390 based on Mount v. Taylor; Southerlands Statutory Construction 3rd Edn. Vol. I, para 2014 and 2022, pp. 468 and 490). Broadly speaking, the principal object of a repealing and amending Act is to excise dead matter, prune off superfluities and reject clear....
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....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 admittedly do not possess, the right of the petitioners to continue to practice despite the fact that they do not fulfill the criteria laid down under the Parliamentary Act or the Central Act would not survive. 70. The expression "unless a different intention appears" contained in Section 6 of the General Clauses Act, thus, in this case, would be clearly attracted. A right whether inchoate or accrued or acquired right can be held to be protected provided the right survives. If the right itself does not survive and either expressly or by necessary implication it stands abrogated, the question of applicability of Section 6 of the General Clauses Act would not arise at all. [See Bansidhar and Others v. State of Rajasthan, (1989) 2 SCC 557....
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....ad 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. It may not be possible for the State or even the Veterinary Council to keep a watch on the performance of the said persons and in particular when a complaint is made against him. Only when a person's name is placed on the register, the question of striking off his name therefrom in the event of commission of a professional or other misconduct would arise. A person who is in service, in the event of his committing any misconduct, may also be held to be subject to disciplinary action. 78. For the aforementioned purpose, we are of the opinion that the statute being vague, a purposive construction thereto must be given. 79. In Francis Bennion's Statutory Interpretation, purposive construction has been described in the following manner: "A pur....