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Gujarat High Court

Mahendrabhai Namdev Chavan & 2 vs State Of Gujarat & on 28 March, 2014

Author: Ravi R.Tripathi

Bench: Ravi R.Tripathi, Mohinder Pal

          C/LPA/429/2014                                           ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               LETTERS PATENT APPEAL NO. 429 of 2014

           In SPECIAL CIVIL APPLICATION NO. 11240 of 2013

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          MAHENDRABHAI NAMDEV CHAVAN & 2....Appellant(s)
                            Versus
              STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:
MR HARSHADRAY A DAVE, ADVOCATE for the Appellant(s) No. 1 - 3
MR HARSHEEL SHUKLA AGP for Respondent : 1
================================================================

          CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
                 and
                 HONOURABLE MR.JUSTICE MOHINDER PAL

                                Date : 28/03/2014


                                 ORAL ORDER

(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)

1. Heard learned advocate, Mr.Harshadray A.Dave, for the appellants. Learned advocate for the appellants submitted that the learned Single Judge has dismissed Special Civil Application No.11240 of 2013 relying on decision in Special Civil Application No.285 of 2013. In this connection, learned advocate for the appellants invited the attention of the Court to para-4, relevant part of which reads as under:

"4. It is not in dispute that the respondent State of Gujarat has not enacted any legislation Page 1 of 4 C/LPA/429/2014 ORDER governing practice of electro-homeopathy / electropathy and therefore, submissions made by learned Counsel for the petitioners are on part with the submissions of petitioners of Special Civil Application No.285/2013, which came to be disposed of by this Court.

After considering the submissions, this Court observed that in a similarly situated case of petitioners, i.e. Special Civil Application No.285/2013, the following:-

"6. Upon hearing learned counsels for the parties and on perusal of the record of the case, I am of the view that in well demarcated functions of legislature, executive and judiciary, it is exclusively the domain of the State Government to take up the issue as to whether it is necessary for making any enactment subject to the constitutional provisions and schedule 7 of the Constitution of India. That the instructions of the Central Government referred by learned counsel for the petitioners is based on the order passed by Lucknow Bench of High Court of Judicature at Allahabad and it is to be treated as instructions only. No duty is cast upon the State Government in absence of any valid act or any national council like Medical Council of India, or Homeopathy Counsel of India or any other technical institute etc., the decision taken by Page 2 of 4 C/LPA/429/2014 ORDER the Department of Health and Family Welfare rejecting representation cannot be said to be in any manner illegal or contrary to law.

7. The decision in the case of Kalyan Cements Ltd. [supra] has no application to the facts of the present case inasmuch as no promise is given by the State Government or its agency.

8. However, it will be open for the petitioners to pursue respective Governments to consider the case within the framework of law and case if the Central Government or State Government or both decide to enact a legislation with regard to subject grievance, this order will not come in their way in enacting such legislation."

9. In the facts of this case, no parity can be drawn and the decisions as referred above do not confer any right on the petitioners with regard to the subject matter of this petition, more particularly where there is no such Act. In the above circumstances, when there is no legal background and set-up and when such practices are connected with human life, no direction can be given by a Writ Court in exercise of powers under Article 226 of the Constitution of India. Accordingly, this petition is rejected. Notice discharged".

2. Learned advocate states that against the dismissal of Special Civil Application No.285 of 2013, Letters Patent Appeal No.1340 of 2013 was filed which is admitted by this Court (Coram: Hon'ble Mr.Justice Vijay Manohar Sahai and Hon'ble Mr.Justice A.G.Uraizee) by order dated 10.12.2013. Hence, this Letters Patent Appeal is ADMITTED. It is ordered to be heard with Letters Patent Appeal No.1340 of 2013.

(RAVI R.TRIPATHI, J.) (MOHINDER PAL, J.) ashish Page 4 of 4