Sakharam Narayan Kherdekar vs City of Nagpur Corporation

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1962 Supreme(Bom) 70

IN THE HIGH COURT OF BOMBAY
IN THE HIGH COURT OF BOMBAY AT NAGPUR
Abhyankar N.L. and Paranjape, JJ.
Appellants: Sakharam Narayan Kherdekar
Vs.
Respondent: City of Nagpur Corporation and Ors.
Special Civil Appln. No. 45 of 1962
Decided On: 25.09.1962
Counsels:
For Appellant/Petitioner/Plaintiff: S.W. Dhabe, H.W. Dhabe and P.G. Palsikar, Advs.
For Respondents/Defendant: C.S. Dharmadhikari, Adv. and S.M. Hajarnavis, Asst. Govt. Pleader

Headnote:
Bombay Shops and Establishments Act, 1948 (Act) - Applicability to Advocates - Whether an Advocate's office is an 'establishment' under the Act - Interpretation of 'commercial establishment' - Held, an Advocate's office is not an 'establishment' under the Act.
Fact of the Case:

Petitioner, an Advocate, challenged the applicability of the Bombay Shops and Establishments Act, 1948 (Act) to his office. The Act sought to regulate the conditions of work and employment in establishments, including commercial establishments. The petitioner contended that his office was not a 'commercial establishment' as defined under the Act, as the profession of law was not a commercial activity. The respondents, the State Government and the Market Superintendent, argued that the petitioner's office was an establishment within the meaning of the Act, and that the definition of 'commercial establishment' included any premises where business, trade, or profession was carried on.
Finding of the Court:

The Court held that the petitioner's office was not an 'establishment' under the Act. It interpreted the definition of 'commercial establishment' to mean premises where business, trade, or profession of a commercial nature was carried on. The Court found that the profession of law was not a commercial activity, as it required specialized skill, training, and adherence to strict ethical and professional standards. The Court also noted that lawyers were officers of the Court and played a vital role in the administration of justice, which was a regal function of the State. Therefore, the Court held that the petitioner's office was not a 'commercial establishment' and was not subject to the provisions of the Act.
Issues: 1. Whether the petitioner's office was an 'establishment' within the meaning of the Bombay Shops and Establishments Act, 1948 (Act). 2. Whether the definition of 'commercial establishment' under the Act included premises where business, trade, or profession was carried on. 3. Whether the profession of law was a 'commercial activity' within the meaning of the Act.
Ratio Decidendi: The Court interpreted the definition of 'commercial establishment' under the Act to mean premises where business, trade, or profession of a commercial nature was carried on. The Court found that the profession of law was not a commercial activity, as it required specialized skill, training, and adherence to strict ethical and professional standards. The Court also noted that lawyers were officers of the Court and played a vital role in the administration of justice, which was a regal function of the State.
Final Decision: The Court allowed the petition and issued a writ of prohibition restraining the respondents from enforcing the provisions of the Act against the petitioner and other Advocates.

judgment-

1. This petition raises an interesting and an important point of interpretation, under the Bombay Shops and Establishments Act, 1948. This Act has been made applicable to Vidarbha region by the Extension and Amendment Act 1960, applying the provision of this Act all over the State of Maharashtra.

2. The petitioner, Shri S. N. Kherdekar, is a Advocate of this Court, and also the elected Secretary of the High Court Bar Association at Nag-pur. The Association is a body registered under the Societies Registration Act. The petitioner has been practising for the last 27 years in the High Court and also enrolled under the Legal Practitioners Act and now under the new Advocates Act, 1961.

3. The petitioner has stated that he is practising at his own residence and does not maintain an establishment. He carries on profession by receiving briefs at his house. He has a clerk who looks after the Court work. The clerk is a registered clerk under the rules of the High Court. The petitioner is governed by the Legal Practitioners Act and the Advocates Act. The petitioner, it is claimed, is also an officer of the Court, and is not running any firm or business, or organising any commercial establishment.

4. The petitioner in his capacity as Secretary of the High Court Bar Association, received from the Market Superintendent of respondent No. 1 Corporation of the city of Nagpur a letter dated 23-1-62. In this letter the Market Superintendent intimated to the petitioner that the Bombay Shops and Establishments Act, 1948, has been made ap-plicable to Vidharbha region with effect from-1-10-61. He therefore forwarded 25 forms which could be used by members of the High Court Bar Association. He also stated that any further requirement may be referred to the Market Superintendent. A copy of the form which was forwarded by the Market Superintendent is to be found at page 10 as Annexure B to the petition. This form is prescribed according to Rule 5 of the Rules-framed by the State Government under the Bombay Shops and Establishments Act, 1948, hereafter referred to as the Shops Act. The form prescribed by Rule 5 is to be used by all employers as defined in the Act. The employers are required under Section of the Shops Act to send to the Inspector of the local area concerned a statement in this form together with prescribed fees. The information that is to be given in the form is with respect to the name of the employer and the manager, if any, the postal address of the establishment, the name of the establishment, if any, the category of the establishment, namely, whether it is a shop or commercial establishment or a residential hotel, restaurant, eating house, threatro or any other place of public amusement or entertainment, and other particulars that may be prescribed. On receipt of the form the Inspector has to be satisfied about the correctness of the statement, and then the establishment is to be registered in the register of establishments as prescribed by the rules. On such registration a registration certificate is granted to the employer which is valid till the end of the year. One of the consequences of non-registration and not sending the form as required by Section 7 is provided in Section 52 (a) of the Shops Act. Under that clause if an employer fails to send to the Inspector a statement during the period specified in Section 7, then the employer and the manager are liable to be prosecuted and on conviction each will be punishable with a fine which shall not be less than Rs. 25/- and which may extend to Rs. 25O/-, and if the contravention under Section 7 is continued after the expiry of the tenth day after conviction, the employer shall be liable on further conviction to be punished with fine which may extend to Rs. 10/- for each day on which the contravention is so continued.

5. The petitioner thus being exposed to the risk of a prosecution if he were not to register himself as an employer of an establishment under Section 52 of the Ac

Click Here to Read the rest of this document