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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1731 OF 2002
Dr.(Smt.)Shubhada Motwani ...Petitioner
vs.
The State of Maharashtra & Ors.
...Respondents
Mr.S.C.Naidu i/b.C.R.Naidu, Advocate for the
petitioner
Mrs.M.M.Deshmukh, APP, for the State.
Mr.Jamdar, Advocate for Respondent No.4
CORAM : V.M. KANADE &
P.D. KODE JJ.
JUNE 12, 2014
P.C. :-
1. By this petition, which is filed under
Article 226 of the Constitution of India,
Petitioner has challenged section 7(1) of the
Bombay Shops and Establishments Act, 1948. The
petitioner is a medical practitioner who is
duly registered under the provisions of
Maharashtra Medical Council. Show cause notice
was issued to the petitioner for not obtaining
a license under the Bombay Shops and
Establishments Act,1948 and criminal
prosecution was launched against her for
contravention of Section 7(1) of the said Act.
Bombay High Court
901-wp-1731-2002
2. Learned counsel appearing on behalf of
petitioner has submitted that a medical
practitioner cannot fall within the definition
of commercial establishment since a doctor is
providing services to the patients and the
said activity therefore would not fall within
the purview of commercial activity. It is
submitted that prior to 1997 legal
practitioners and medical practitioners were
not included in the said definition of
commercial establishment. However, by virtue
of an amendment in 1997 all these
professionals have been included in the said
definition. It is submitted that the legal
practitioners challenged the validity of the
said amendment by filing a petition.
3. This Court was pleased to hold that the
said amendment is ultra virus and struck down
the inclusion of legal practitioners from the
definition of commercial establishment.
4. It is also submitted that the Apex Court
in 1 “Devendra M. Surti, Dr. vs. State of
Gujarat, also held that private dispensary of
doctor is not commercial establishment. It is
1 AIR 1969 SUPREME COURT 63.
Bombay High Court
901-wp-1731-2002
submitted that the judgment of the Apex Court
therefore, applies to the facts of the present
case.
5. We have heard the learned counsel for the
petitioner and the counsel on behalf of the
State. The Apex Court in “Devendra M. Surti,
Dr. vs. State of Gujarat” (supra) 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”.
6. In our view, the ratio of the said
judgment squarely applies to the facts of the
present case. Similarly, the Division Bench
of this Court, in “Narendra Keshrichand Fuladi
and Anr. vs.State of Maharashtra, The
Maharashtra Law Journal 1985, page1”
also has
held that “a legal practitioner having a
office cannot be said to carry on commercial
activity and would not fall within the
definition of commercial establishment”. The
ratio of both these judgments squarely applies
to the present case.
Bombay High Court
901-wp-1731-2002
7. In our view, therefore the amendment
incorporating medical practitioners within the
definition of commercial establishment will
have to be held ultra virus and is accordingly
struck down.
8. Criminal prosecution which has been
initiated against the petitioner also,
therefore is, quashed.
9. Petition is accordingly allowed in terms
of prayer clause (a) and (b) and is disposed
of.
(P.D. KODE, J.) (V.M. KANADE, J.
Link to original judjement:
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