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1971 DIGILAW 348 (KER)

SADANANDAN v. COMMISSIONER, CORPORATION OF COCHIN

1971-12-21

P.UNNIKRISHNA KURUP, T.C.RAGHAVAN

body1971
Judgment :- 1. A learned judge of this Court dismissed a writ petition in limine; and the appeal is directed against that order. The appeal was admitted by a Division Bench and was directed to be posted after a case then pending before a Full Bench was decided. That, case has since been decided and is reported as Kesavan Vaidyar v. Muncipal Commissioner, Sherthallai (1970 KLT. 831). 2. The appellant is a homeopath plying bis profession in Mattancherry, Cochin. The Cochin Corporation, the respondent, imposed a licence fee of Rs. 15/- per year on the appellant (on other similar practitioners of homeopathy too) under S.299 of the Kerala Municipal Corporations Act read with Schedule IV thereof, where the Corporation is given power to impose fee for issuing licence for storing, among other things, chemical preparations. The main question before the Full Bench was whether arishtarams and asavams were chemical preparations and for storing them a licence was necessary. Tile Full Bench held that arishtams and asavams were chemical preparations. The other question decided by the Full Bench was whether there was quid pro quo for the licence fee collected by the Municipal Council, Sherthallai. On that also, considering the materials produced before Court and the allegations in the counter affidavit of the Municipal Council, the Full Bench held that there was quid pro quo and there was also correlation between the quid pro quo and the services rendered. 3. We shall first consider the first question, viz:, whether there is quid pro quo to the appellant and other homeopaths similarly situated. The Corporation has filed to counter affidavits. And in the additional counter affidavit, the Corporation has averred that the sanitary staff employed by the Corporation had to inspect the premises of these homeopaths very often and remove the waste products: they had also to spray disinfectants around these premises very often, at least once a week, and in larger quantities than in other premises. It is also averred in the same counter affidavit that frequent inspections had to be made for checking the premises and to give directions to the licencees from time to time. Ia the original counter affidavit filed by the Corporation, it is stated that the receipts on the several relevant heads were less than the heads of expenses the Corporation had to meet and that the Corporation was even suffering a loss on these heads. Ia the original counter affidavit filed by the Corporation, it is stated that the receipts on the several relevant heads were less than the heads of expenses the Corporation had to meet and that the Corporation was even suffering a loss on these heads. It cannot therefore be said that the appellant is not having any quid pro quo for the licence fee he pays. There cannot also be any serious contest that the amount collected does not bear a reasonable proportion to the services rendered, because the amount is only Rs. 15/- per year; thus there is proper correlation too between the fee collected and the services rendered. 4. The second contention advanced by the counsel of the appellant is that the homeopathic medicines stored by him are not chemical preparations. Of course, what is done at his premises is only to mix the medicines he gets from other parts of India with sugar of milk and prescribe and distribute these medicines in the form of such charged sugar pills. The argument is that is that process there is no chemical process involved. It cannot be disputed that in that process there is no chemical process. But, under Schedule IV, even for storing chemical preparations, a licence is required. Therefore, the question boils down to whether the homeopathic medicines the appellant gets down from other parts of India and the sugar pills he prepares out of them at his premises are chemical preparations. It is contended by the counsel of the appellant that in the theory of homeopathy homeopathic medicines contain no chemicals. He has brought to our notice some literature connected with this and ultimately to a passage from Organon of Medicine by Samuel Hahnemanu (B. K. Sarkar). It is contended by the counsel of the appellant that in the theory of homeopathy homeopathic medicines contain no chemicals. He has brought to our notice some literature connected with this and ultimately to a passage from Organon of Medicine by Samuel Hahnemanu (B. K. Sarkar). The passage at page 332 of the book reads: "The discovery that crude medicinal substances (dry and fluid) unfold their medicinal power ever more and more by trituration or succession with non-medicinal things, and in greater extent the further, the longer and the stronger this trituration or succession is carried on, so that all their material substance seems gradually to be dissolved and resolved into pure medicinal spirit." What is claimed by this passage is that by trituration (grinding into very small particles) and by succession (dilution in water or other non-acting liquids) the chemical character of the substance ground or dissolved is decreased and the medicinal character is increased, with the result that when a substance is successively ground into thinner and thinner particles or dissolved into more and more of the liquid, the substance loses all its chemical character and what remains is only the medicinal character "the pure medicinal spirit". Thus, a homeopathic medicine prepared by more and more trituration and more and more succession has no chemical character or chemical quality about it. 5. This theory does not appear to have been universally accepted. Therefore, it will be too much for us to accept it and proceed on the basis that none of the homeopathic medicines have any chemical substance in them or chemical character about them. The counsel of the appellant has had to concede at the bar that, in diluting or grinding, no chemical change takes place and what takes place is only a physical change. If that is the position, however much a substance is diluted or ground, the solution or the fine powder roust still contain the substance dissolved or ground. Thus, when a chemical is triturated or dissolved, the powder or solution that results must still contain the chemical at least in a small quantity. Therefore, we hold that every homeopathic medicine contains at least a minute part of the substance (the chemical) triturated or dissolved: and that that is enough to bring the substance within the meaning of chemical preparation in Schedule IV of the Municipal Corporations Act. 6. Therefore, we hold that every homeopathic medicine contains at least a minute part of the substance (the chemical) triturated or dissolved: and that that is enough to bring the substance within the meaning of chemical preparation in Schedule IV of the Municipal Corporations Act. 6. The third contention urged before us is that the power given to the Corporation is unguided without any guidelines as to what is a chemical preparation. We do not think that this is a matter where any guideline is required, because what is a chemical preparation is a question which can be decided without any guideline. This contention has also no force. 7. In the result, we dismiss the writ appeal, however, without costs.