Dispensary of Medical Practisioner cannot be termed as Commercial Establishment

Dr. Kavita Pravin Tilwani v. State of Maharashtra & Ors.

FACTS:

  • The Petitioner is a registered Medical practitioner at Mumbai. The Responded no.2 Corporation issued a notice to the petitioner that her clinic is a commercial establishment and that registration of the same is necessary under the Bombay Shops & Establishments Act, 1948.
  • The Petitioner has cited various Supreme Court judgements wherein it has been held that the clinic of a medical practitioner cannot be held under the purview of a commercial establishment and therefore the show-cause notice issued by the Respondent Corporation was patently illegal.
  • The petitioner has moved the Bombay HC under article 226, seeking an appropriate writ order and direction declaring that the Maharashtra Act no. 64 of 1977, insofar as it includes a medical practitioner within the definition of the expression “commercial establishment” u/s 2(4) of the Act is unconstitutional.
  • It was further submitted by the petitioner that, prior to the amendment, medical practitioners and other professionals were not included under commercial establishments, however, post the amendment, professionals have been included within the meaning of the expression.
  • The Petitioner has relied on the following three judgements:
    • Dr. Devendra Surti v. State of Gujarat AIR 1969 SC 63
    • Narendra Keshrichand Fuladi & Anr. v. State of Maharashtra Mh. L.J. 1985 Page 1
    • M/s A.F. Fergusson & Co. & Ors. v. The State of Maharashtra & Anr. WP no. 1232 of 1995 Division Bom HC
    • Dr. Shubadha Motwani v. State of Maharashtra & Ors. WP No. 1731 of 2002
  • Counsel on behalf of the Corporation sought for some time to file an affidavit in reply. The Court did not allow the plea to file an affidavit as this case was fairly covered by the Supreme Court judgements and the present petition was filed in 2013 and a copy was immediately served to the Corporation.

JUDGEMENT:

  • In 1977, section 2(4) of the Bombay Shops and establishments Act, 1948 has been amended and the amended provision reads as: “(4) “Commercial establishment” means an establishment which carries on, any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession (and includes establishment of any legal practitioner, medical practitioner, marchitect, engineer, accountant, tax consultant or any other technical or professional consultant and also includes) a society registered under the Societies Registration Act, 1866 (XXI of 1860), and charitable or other trust, whether registered or not, which carries on (whether for purposes of gain or not) any business, trade or profession or work in connection with or incidental or ancillary thereto but does not include a factory, shop residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment;”
  • Citing the case of Devendra M. Surti, the Apex court said that a professional activity must be an activity carried out by an individual by his personal skill and intelligence. It pointed out the difference between professional activity and activity of a commercial nature and hence the professional activity cannot fall within the ambit of s. 2(4) of the Act.
  • Citing another case, National Union of Commercial Employees & Anr. v. MR Meher, Industrial Tribunal, Bombay 1962, it was held by the Bombay HC that the work of solicitors was not an industry within the purview of the Industrial Disputes Act, 1947 and therefore any disputes between the solicitor and his employees cannot be a subject of reference to the Industrial Tribunal.
  • In another case of Narendra Keshrichand Fuladi, before the Division Bench of the Bombay HC, the question before the Court was whether the office of a legal practitioner could be treated at par with other commercial establishments. The Division bench held hat a legal practitioner having an office cannot be said to carry on commercial activity and would not fall within the expression “commercial establishment”. In another order passed by this Bench in Dr. Subhada Motwani’s case, raising a similar issue, it was held that the amendment incorporating medical practitioners within the definition of the expression “commercial establishment” would have to be struck down since doctors cannot fall within the said expression. Disposing the case, the Bench allowed the prayer of the Petitioner.

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