Disposed

Majeed Koshi v. the State of Kerala, Represented by the Secretary to Health and Family Welfare Department

Kerala HC9 Aug 2023WP(C)/3389/2023

Case brief

AI extract

What is this about?

The Court disposed of two connected writ petitions involving alleged unauthorized medical practice and demolition threats. It held that impugned orders were not passed after a hearing and directed the authority to treat them as show-cause notices, granting the parties two weeks to respond before a final order could be passed.

What did the court decide?

Exhibits P11 and P12 treated as show cause notice; time given for objections; authority directed to pass final order after hearing within six weeks.

Majeed Koshi Vs the State of Kerala, Represented by… — Service and Employment | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

¶4

WEDNESDAY, THE 9^TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945

¶5

WP(C) NO. 25872 OF 2023

¶6

NAME AND ADDRESS OF THE PETITIONER:

¶7

ZAREENA JASMINE M.M., AGED 36 YEARS D/O. MULLAKKOYA K., BACK TO BALANCE HOLISTIC WELLNESS AND RESEARCH CENTRE, PANADANS HILL VIEW COMPLEX, SOUTH PIPELINE ROAD, KALAMASSERY, ERNAKULAM, PIN - 682022

¶8

BY ADVS. AJWIN P LALSON BABU KARUKAPADATH M.A.VAHEEDA BABU P.U.VINOD KUMAR ARYA RAGHUNATH VAISAKHI V. T.M.MUHAMMED MUSTHAQ KARUKAPADATH WAZIM BABU P.LAKSHMI AYSHA E.M. SHIFANA KAISE

¶9

NAME AND ADDRESS OF THE RESPONDENTS:

¶10

1 KERALA STATE MEDICAL COUNCIL FOR INDIAN SYSTEM OF MEDICINE, RED CROSS ROAD, THIRUVANANTHAPURAM, REPRESENTED ITS REGISTRAR, PIN - 695035

¶11

2 THE REGISTRAR KERALA STATE MEDICAL COUNCIL FOR INDIAN SYSTEM OF MEDICINE, RED CROSS ROAD, THIRUVANANTHAPURAM, PIN - 695035

¶12

3 KALAMASSERY MUNICIPALITY

¶13

-2-

¶14

W.P.(C). Nos. 3389 & 25872 of 2023

¶15

KALAMASSERY, ERNAKULAM, REPRESENTED BY ITS SECRETARY, PIN - 682033

¶16

4 STATION HOUSE OFFICER KALAMASSERY POLICE STATION, KALAMASSERY, ERNAKULAM, PIN - 682033

¶17

BY ADV.

¶18

SHRI.M.K.ABOOBACKER,SC - R3 SRI. B.S.SYAMANTAK, GP SRI.N.RAGHURAJ, SC – R1 & R2

¶19

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR

¶20

ADMISSION ON 09.08.2023, ALONG WITH

¶21

WP(C).3389/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶22

W.P.(C). Nos. 3389 & 25872 of 2023

¶23

-3-

¶24

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶25

PRESENT

¶26

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

¶27

WEDNESDAY, THE 9^TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 WP(C) NO. 3389 OF 2023

¶28

PETITIONER:

¶29

MAJEED KOSHI AGED 52 YEARS S/O. T.M. ALIYAR, THACHAVALLATH MASJID ROAD, THYKKATTUKULANGARA P.O., ALUVA, PIN - 683106

¶30

BY ADVS. SHERRY J. THOMAS JOEMON ANTONY ANTONY NILTON REMELO

¶31

RESPONDENTS:

¶32

1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT OF KERALA, SECRETARIAT BUILDING, THIRUVANANTHAPURAM, PIN - 695036

¶33

2 THE KERALA STATE MEDICAL COUNCIL FOR INDIAN SYSTEMS OF MEDICINE, REP BY ITS REGISTRAR RED CROSS ROAD, THIRUVANANTHAPURAM, KERALA, PIN - 695035

¶34

3 THE REGISTRAR, CENTRAL COUNCIL FOR RESEARCH IN YOGA AND NATUROPATHY (CCRYN), INSTITUTIONAL AREA, JANAKPURI, NEW DELHI, INDIA,

¶35

-4-

¶36

W.P.(C). Nos. 3389 & 25872 of 2023

¶37

PIN - 110058 4 THE DISTRICT MEDICAL OFFICER OF HEALTH, PARK AVENUE, MARINE DRIVE, ERNAKULAM, KERALA, PIN – 682011, INDIA 5 OPJS UNIVERSITY, REPRESENTED BY ITS REGISTRAR OPJS UNIVERSITY, NEAR SANKHU FORT, JHUNJHUNU ROAD, SADULPUR, RAJASTHAN, REPRESENTED BY ITS REGISTRAR, PIN - 331303 6 STATION HOUSE OF OFFICER KALAMASSERY POLICE STATION, KALAMASSERY, PIN - 683104 7 ZAREENA JASMINE BACK TO BALANCE AQUAPUNCTURE NATUROPATHY AND SUJOK HEALTH RESEARCH CENTRE, OPP. HMT POST OFFICE, PANADANS HILL VIEW COMPLEX, SOUTH, PIPELINE ROAD, KALAMASSERY, ERNAKULAM, PIN - 683104 8 RAJASTHAN MEDICAL COUNCIL, REPRESENTED BY ITS REGISTRAR RAJASTHAN MEDICAL COUNCIL, GOVT. DISPENSARY CAMPUS, NEAR SANKAR BHAWAN, SARDAR PATEL MARG, DURGADAS COLONY, C SHEME, ASHOK NAGAR, JAIPUR - 302001 BY ADVS. N. RAGHURAJ K.S.PRENJITH KUMAR P.A.ABDUL JABBAR MUHAMMED SHAFFI(K/1201/2012) SHAHIM BIN AZIZ(K/557/2016)

¶38

W.P.(C). Nos. 3389 & 25872 of 2023

¶39

-5-

¶40

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.08.2023, ALONG WITH WP(C).25872/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶41

-6-

¶42

W.P.(C). Nos. 3389 & 25872 of 2023

¶43

P.V.KUNHIKRISHNAN, J.

¶44

========================= W.P.(C) Nos.3389 & 25872 of 2023

¶45

========================= Dated this the 9^th day of August, 2023

¶46

JUDGMENT

¶47

These two writ petitions are connected and therefore, I am disposing of these two writ petitions by a common judgment.

¶48

WP(C) No.25872 of 2023 is filed with

¶49

following prayers:

¶50

“i) declare that, the attempt of the respondents 1 and 2 to interfere with the practice of the petitioner in Acupuncture and her establishment providing Acupuncture Therapy is without authority or jurisdiction;

¶51

ii) Call for the records leading to Exhibits P11 and P12;

¶52

-7-

¶53

W.P.(C). Nos. 3389 & 25872 of 2023

¶54

iii) issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibits P11 and P12;

¶55

iv) issue a writ of mandamus or any other appropriate writ, order or direction to the respondents 1 to 4 not to interfere with the practice of the petitioner in Acupuncture and her establishment providing Acupuncture Therapy;

¶56

v) grant such other reliefs, as this Hon’ble Court shall deem just. And

¶57

vi) This Hon’ble Court may be pleased to dispense with filing of the translation of vernacular documents.” [SIC]

¶58

It is submitted by the petitioner in this

¶59

case that she is a qualified Acupuncture Therapist, who has been practicing and running her establishment for the last few years within the jurisdiction of the 3^rd respondent Municipality. The petitioner produced Exts.P1 to P5 to show that the petitioner has Diploma,

¶60

Post Graduate Degree and Ph.D in Acupuncture

¶61

W.P.(C). Nos. 3389 & 25872 of 2023

¶62

-8-

¶63

and she has sufficient experience as well. Petitioner is having Ext.P7 license and Ext.P8 Registration from the 3^rd respondent Municipality is the further contention. It is the case of the petitioner that, when she was successfully undertaking her practice in Acupuncture, the 1^st respondent issued Exts.P11 and P12 orders interdicting the petitioner from practicing and continuing her establishment even without a notice to her and without hearing her. Aggrieved by Exts.P11 and P12, WP(C) No.25872 of 2023 is filed.

¶64

WP(C) No.3389 of 2023 is filed with

¶65

following prayers:

¶66

“i) Call for the entire records pertaining to Exhibit P 2 A and direct the 2^nd Respondent to finalise the same within a time frame and prevent the 7^th Respondent from unauthorized practice.

¶67

-9-

¶68

W.P.(C). Nos. 3389 & 25872 of 2023

¶69

ii) Issue a Writ of Mandamus or any other direction to 2^nd Respondent to issue communication to the 6th Respondent SHO to prevent the 7th Respondent from unauthorized practice.

¶70

iii) Issue a Writ of Mandamus or any other direction to Respondents 1 to 4 to initiate stringent action against unauthorized medical practice of persons like 7^th Respondent and Direct the 2^nd Respondent to initiate prosecution proceedings against forthwith.

¶71

iv) Issue a Writ of Mandamus or any other direction to Respondent No. 8 to report whether the 7^th Respondent has successfully complete the course which is having validity and report whether any NOC has been issued for registration with 2^nd Respondent.

¶72

v) Petitioner prays that this Honourable Court may be pleased to dispense with the translation of the vernacular documents produced in the vernacular language.

¶73

vi) Provide cost of the proceedings.”[SIC]

¶74

The petitioner in WP(C) No.25872 of

¶75

2023 is the 7^th respondent in this case.

¶76

W.P.(C). Nos. 3389 & 25872 of 2023

¶77

-10-

¶78

According to the petitioner in this case, 7^th respondent is practicing as BNYS – (Bachelor of Naturopathy and Yoga Science) Degree holder and making her practice claiming that she is a Doctor holding BNYS Degree obtained from Rajasthan. It is the case of the petitioner that, the BNYS course, which is being conducted in Rajasthan by the 6^th respondent University is not having valid recognition and those who are attending that course can not successfully register under the Kerala State Medical Council working under the 2^nd respondent council. It is also the case of the petitioner that the 7^th respondent in that case has not taken any registration as per the Kerala State Medical Council Act. Hence this writ petition is filed

¶79

W.P.(C). Nos. 3389 & 25872 of 2023

¶80

-11-

¶81

with a main prayer to prevent the 7^th

¶82

respondent from unauthorized practice.

¶83

Heard the learned counsel appearing for the petitioners in these cases, the learned Standing counsel appearing for the Kerala State Medical Council for Indian Systems of Medicine and the learned Government Pleader.

¶84

The main contention of the petitioner in WP(C) No.25872 of 2023 is against Exts.P11 and P12 produced in that writ petition. A perusal of Exts.P11 and P12 produced in WP(C) No.25872 of 2023 would not show that, it is an order passed after giving an opportunity of hearing to the petitioner in that case. Therefore, I am of the considered opinion that, without expressing any opinion on merit, there

¶85

W.P.(C). Nos. 3389 & 25872 of 2023

¶86

-12-

¶87

can be a direction to the 1^st respondent in that case to treat Exts.P11 and P12 as show cause notice to the petitioner and the petitioner's objection can be considered and thereafter an order can be passed by the 1^st respondent in accordance with law. The petitioner in WP(C) No.3389 of 2023 is also free to submit his objection before the Council.

¶88

Therefore, these writ petitions are disposed of in the following manner:

¶89

i. Exts.P11 and P12 produced in WP(C) No.25872 of 2023 shall be treated as show cause notice to the petitioner in that writ petition. The petitioner in that writ petition is free to submit her objection to the show cause notice, within a period of two

¶90

-13-

¶91

W.P.(C). Nos. 3389 & 25872 of 2023

¶92

weeks from the date of receipt of a certified copy of this judgment.

¶93

ii. Petitioner in WP(C) No.3389 of 2023 is also free to submit his objection to the 1^st respondent in WP(C) No.25872 of 2023, within a period of two weeks from the date of receipt of a certified copy of this judgment.

¶94

iii. The 1^st respondent in WP(C) No.25872 of 2023 will consider the objections submitted by the petitioners in these cases and pass final orders in it, after giving an opportunity of hearing to the petitioners in these cases, as expeditiously as possible, at any rate, within a period of

¶95

W.P.(C). Nos. 3389 & 25872 of 2023

¶96

-14-

¶97

six weeks from the date of receipt of the objections.

¶98

iv. Petitioners will produce a certified

¶99

copy of this judgment along with a copy of the writ petition before the 1^st respondent in WP(C) No.25872 of 2023 for compliance.

¶100

P.V.KUNHIKRISHNAN JUDGE

¶101

das/DM

¶102

-15-

¶103

W.P.(C). Nos. 3389 & 25872 of 2023

¶104

APPENDIX OF WP(C) 3389/2023

¶105

PETITIONER EXHIBITS

¶106

EXHIBIT P1 THE TRUE COPY OF THE PETITION DATED 20.8.2022 EXHIBIT P2 THE TRUE COPY OF THE COVERING LETTER ON 7-12-2022 EXHIBIT P2A THE TRUE COPY OF THE PROCEEDINGS OF THE COUNCIL DATED 14-9-2022 EXHIBIT P3 THE TRUE COPY OF THE FIR DATED 199-2022

¶107

RESPONDENT EXHIBITS

¶108

EXHIBIT R3(A) TRUE COPY OF THE LETTER NO.M.11013/1/2019-YN DATED 14.01.2021 EXHIBIT- R7(A) TRUE COPY OF THE BNYS CERTIFICATE ISSUED TO THE 7TH RESPONDENT BY THE 5TH RESPONDENT UNIVERSITY. EXHIBIT- R7(B) TRUE COPY OF THE OFFICE ORDER DATED 21.02.2019 ISSUED BY THE MINISTRY OF HEALTH AND FAMILY WELFARE. EXHIBIT- R7(C) TRUE COPY OF THE JUDGEMENT DATED 03.01.2017 PASSED IN CRL. M.C. NO. 1349/2016.

¶109

-16-

¶110

W.P.(C). Nos. 3389 & 25872 of 2023

¶111

APPENDIX OF WP(C) 25872/2023

¶112

PETITIONER EXHIBITS

¶113

EXHIBIT P1	A TRUE COPY OF THE PROFESSIONAL
	CERTIFICATE AND DISTINCTION
	CERTIFICATE DATED 28/02/2018 IN
	DIPLOMA IN ACUPUNCTURE ISSUED TO
	THE PETITIONER FROM BHARAT SEVAK SAMAJ
EXHIBIT P2	A TRUE COPY OF THE CERTIFICATE
	DATED NOVEMBER 2019 IN MD
	(ACUPUNCTURE) OF THE PETITIONER
	FROM THE OPEN INTERNATIONAL
	UNIVERSITY FOR COMPLEMENTARY MEDICINES WITH MARK STATEMENT.
EXHIBIT P3	A TRUE COPY OF THE DOCTORATE
	CERTIFICATE DATED SEPTEMBER 2021 IN ACUPUNCTURE OF THE PETITIONER FROM THE OPEN INTERNATIONAL UNIVERSITY FOR COMPLEMENTARY MEDICINES.
EXHIBIT P4	A TRUE COPY OF DIPLOMA CERTIFICATE DATED 28/08/2020 IN ACUPUNCTURE OF THE PETITIONER FROM JAIN UNIVERSITY.
EXHIBIT P5	A TRUE COPY OF THE CERTIFICATE
	DATED 12/12/2018 IN ADVANCED
	ACUPUNCTURE AND CUPPING THERAPY OF
	THE PETITIONER ALONG WITH
	MEMORANDUM OF MARKS FROM JAN
	SHIKSHAN SANSTHAN, KOLLAM .
EXHIBIT P6	A TRUE COPY OF THE DEGREE
	CERTIFICATE DATED 21/04/2022 IN
	NATUROPATHY AND YOGA SCIENCE FROM
	OPJS UNIVERSITY, CHURU, RAJASTHAN TO THE PETITIONER.
EXHIBIT P7	A TRUE COPY OF THE LATEST LICENSE

¶114

-17-

¶115

W.P.(C). Nos. 3389 & 25872 of 2023

¶116

DATED 26/05/2023 ISSUED BY THE 3RD RESPONDENT, WHICH IS VALID UPTO 31/03/2024.

¶117

EXHIBIT P8	A TRUE COPY OF THE REGISTRATION
	CERTIFICATE DATED 20/07/2023 ISSUED
	BY THE 3RD RESPONDENT MUNICIPALITY
	TO THE ESTABLISHMENT OF THE PETITIONER.
EXHIBIT P9	A TRUE COPY OF THE RELEVANT PORTION
	OF THE REPORT OF 1991 OF THE WHO
	SCIENTIFIC GROUP ON THE PROPOSED
	STANDARD INTERNATIONAL ACUPUNCTURE THERAPY NOMENCLATURE.
EXHIBIT P10	A TRUE COPY OF THE RELEVANT PORTION OF THE PROCEEDINGS DATED 20/08/2004 OF RAJYASABHA.
EXHIBIT P11	A TRUE COPY OF THE ORDER
	NO.D/14776/2022/MC/ISM DATED
	24/07/2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P12	A TRUE COPY OF THE COMMUNICATION
	DATED 24/07/2023 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.
EXHIBIT P13	A TRUE COPY OF THE RELEVANT PARTS OF THE MAHARASHTRA ACUPUNCTURE SYSTEM OF THERAPY ACT, 2015.
EXHIBIT P14	A TRUE COPY OF THE INTERIM ORDER
	DATED 19/07/2017 IN WP(C)
	NO.19088/2017 OF THIS HON'BLE COURT.
EXHIBIT P15	A TRUE COPY OF THE ORDER DATED
	03/01/2017 IN CRL. MC NO.1349/2016.

¶118

//TRUE COPY// PA TO JUDGE

Majeed Koshi v. the State of Kerala, Represented by the Secretary to Health and Family Welfare Department

Case brief

What is this about?

What did the court decide?

Majeed Koshi v. the State of Kerala, Represented by the Secretary to Health and Family Welfare Department

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.M.Joseph Vs Tahsildar

T.P. Jayaprakashan Vs State of Kerala

Raju Antony Vs Taluk Tahsildar & Executive Magistrate

Shijith Kozhiparambil Kunhi Velayudhan Vs Union of India

Muhammed Ali P Vs State of Kerala

Nagaraju Vs State of Kerala