The inclusion of legal practitioners in the definition of 'commercial establishment' under S. 2(4) of the Bombay Shops and Establishments Act, 1948, was arbitrary and irrational, and violative of Art. 14 of the Constitution.

JUDGMENT :

Deshpande, J.

1. By these two petitions, the petitioners pray for striking down the amendment to S. 2(4) of the Bombay Shops and Establishments Act, 1948 (Bombay Act LXXIX of 1948), effected by S. 2(b) of the Maharashtra Act No. LXIV of 1977.

2. The petitioners contend that they do not have any establishment as contemplated by the Bombay Shops and Establishments Act, 1948 ('the Shops Act' for short). Petitioner No. 1 in Special Civil Application No. 1165 of 1978 has employed only one clerk who does miscellaneous work like keeping briefs and carrying them to the Court, and he never employs any organised labour which is involved in carrying on the legal profession by the petitioner.

3. The petitioner in Special Civil Application No. 1185 of 1978 is also an Advocate. Besides being an Advocate, he is also duly elected as the Secretary of the Akola Bar Association. The Shop Inspector of the first respondent, Municipal Council, Akola, issued instructions to this petitioner requiring him to register himself under the provisions of section 7 of the Shops Act, on the assumption that his office-cum-residence is a commercial establishment as defined u/s 2(4) of the Shops Act and also asking him to send a list of Advocates who come within the purview of the Act.

3A. According to Shri. A. S. Bobde, the learned counsel for the petitioners, the amendment of the definition of 'commercial establishment' as contained u/s 2(4) of the Shops Act by the amending Act LXIV of 1977, enlarging the meaning of 'commercial establishment' so as to include establishment of any legal practitioner, could not be justified by Entry 24 of List III of the Seventh Schedule of the Constitution of India and the State Legislature has no competence to legislate on the subject by including the establishment of a legal practitioner in the definition of 'commercial establishment', under the guise of that Entry. It is also contended that in view of the prevalence of the Advocates Act, 1961, which governed the legal practitioners, it was not competent for the State Legislature to legislate on the same subject. It was further urged that the class of legal practitioners did not partake all the attributes of business, commerce or trade which was necessary for bringing them under the definition of "commercial establishment" and in view of the avowed object of the Act as originally framed, the inclusion of legal practitioners in the definition was arbitrary and irrational and was, therefore, violative of Article 14 of the Constitution of India. Shri V. G. Palshikar, the learned counsel who intervened on behalf of the Maharashtra Bar Council, and Shri L. Mohta for the petitioner in Special Civil Application No. 1185 of 1978, adopted the submissions of Shri. A. S. Bobde.

4. On the other hand, it was urged by Shri. B. P. Jaiswal, the learned Assistant Government Pleader on behalf of the respondents, that it was not only under Entry No. 24 of List III of Seventh Schedule of the Constitution that the State Legislature derived its power to legislate, but it was referable also to Entry No. 26 of that list which deal with legal, medical and other professions, and there could not be any repugnancy between the provisions of the Shops Act and the Advocates Act, as the amending Act LXIV of 1977, after being passed by the State Legislature, received the President's assent on the 29th November, 1977 and would, therefore, prevail in the state of Maharashtra, in view of Article 254(2) of the Constitution. While submitting that no question of competency of the State Legislature can arise in these circumstances, it was contended that the amendment sought to enlarge the definition of commercial establishment by including the establishment of a legal practitioner along with others, and the amendment was not, therefore, violative of Article 14 of the Constitution.

5. Before proceeding to deal with the rival contentions raised by the parties, it is necessary to remember the test laid down by Lor