2014 (7) TMI 1302 - HC - Indian Laws

Scope of medical practitioner - whether comes within the definition of the expression commercial establishment under Section 2(4) of the Bombay Shops and Establishments Act, 1948 or not - HELD THAT - The Apex Court in the case of DR. DEVENDRA M. SURTI VERSUS STATE OF GUJARAT 1968 (5) TMI 57 - SUPREME COURT has held that private dispensary of a doctor is not a commercial establishment. The amendment incorporating medical practitioners within the definition of the expression commercial establishment will have to be struck down since doctors cannot fall within the definition of the said expression - petition allowed.

Summary

Issues:
1. Constitutional validity of Maharashtra Act No.64 of 1977 including medical practitioners in the definition of "commercial establishment" under the Bombay Shops and Establishments Act, 1948.

Analysis:
1. The petitioner challenged the constitutionality of the amendment including medical practitioners in the definition of "commercial establishment." The petitioner, a doctor, cited various judgments, including those of the Apex Court and the High Court, to support her argument. She contended that prior to the amendment, medical practitioners were not considered commercial establishments. However, the amendment broadened the definition to include all professionals. The petitioner argued that this amendment was unconstitutional.

2. The respondent Corporation requested time to file an affidavit, but the Court found the issue was already settled by previous judgments. The Corporation argued that since the petitioner had registered under the Bombay Shops and Establishments Act but not renewed the registration, she could not challenge the section's validity. The Court rejected the Corporation's request for an adjournment, stating that the settled legal position addressed the Corporation's submission.

3. The amended Section 2(4) of the Bombay Shops and Establishments Act, 1948, broadened the definition of "commercial establishment" to include various professionals, including medical practitioners. The Apex Court in a previous judgment held that a private dispensary of a doctor is not a commercial establishment. The Court emphasized the distinction between professional activities and commercial activities. Similarly, a Division Bench of the High Court held that legal practitioners and medical practitioners cannot be treated as commercial establishments.

4. The Division Bench, in a case similar to the present one, held that the amendment incorporating medical practitioners in the definition of "commercial establishment" needed to be struck down. The Court agreed that doctors cannot be categorized as commercial establishments. Consequently, the writ petition was allowed in favor of the petitioner, and the amendment was declared unconstitutional.

This detailed analysis of the judgment highlights the constitutional validity challenge, the legal arguments presented, and the Court's decision based on previous judgments and legal principles.