2014 (6) TMI 1023 - HC - Indian Laws

Validity of Section 7(1) of the Bombay Shops and Establishments Act, 1948 - Non-obtaining of license under the act - launching of Criminal prosecution - medical practitioner - Commercial establishment or not - HELD THAT - The Apex Court in DR. DEVENDRA M. SURTI VERSUS STATE OF GUJARAT 1968 (5) TMI 57 - SUPREME COURT has, after examining the provisions of the Gujarat Shops and Establishments Act , which are identical to the provisions of Bombay Shops and Establishments Act, 1948 come to the conclusion that private dispensary of doctor is not commercial establishment . The amendment incorporating medical practitioners within the definition of commercial establishment will have to be held ultra vires and is accordingly struck down - Criminal prosecution which has been initiated against the petitioner is quashed. Petition allowed.

Summary

Issues: Challenge to section 7(1) of the Bombay Shops and Establishments Act, 1948 regarding medical practitioners as commercial establishments.

In this judgment by the Bombay High Court, the petitioner, a medical practitioner registered under the Maharashtra Medical Council, challenged the inclusion of medical practitioners as commercial establishments under section 7(1) of the Bombay Shops and Establishments Act, 1948. The petitioner argued that providing medical services does not constitute commercial activity. The court noted that legal practitioners and medical practitioners were included in the definition of commercial establishments in 1997 through an amendment. However, the court referred to a previous case where legal practitioners successfully challenged this inclusion. The court held that the amendment including medical practitioners as commercial establishments was ultra vires and struck it down.

The court also referred to a Supreme Court case where it was held that a private dispensary of a doctor is not a commercial establishment. The court found that the Supreme Court's decision applied to the present case. Additionally, the court cited a Division Bench judgment of the Bombay High Court which held that a legal practitioner with an office does not engage in commercial activity and therefore does not fall within the definition of a commercial establishment. The court held that these judgments were applicable to the current case.

Consequently, the court held the amendment incorporating medical practitioners within the definition of commercial establishments as ultra vires and quashed the criminal prosecution initiated against the petitioner. The petition was allowed, and the court disposed of the case in favor of the petitioner by striking down the inclusion of medical practitioners as commercial establishments under the Act.