HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Reserved on: 09.03.2022

Pronounced on: 22.03.2022

OWP No. 1532/2017

IA No. 1/2017

c/w

OWP No. 1847/2016

IA No. 1/2016

M/s Indian Dental Association and another

...Appellant/Petitioner(s)

Through :- Mr. Amit Gupta, Advocate.

v/s

<

State of J&K and others

.....Respondent (s)

Through :- Mr. Dewakar Sharma, Dy. AG.

Coram:

HON?BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

JUDGMENT

1.

In these two petitions, one filed by M/s Indian Dental Association

and another and the other filed by M/s Sunny Dental Clinic, the

issue that falls for consideration is >whether the dental clinic falls

within the ambit of the term <establishment= as defined under

Section 2(8) of the Jammu and Kashmir Shops and

Establishments Act 1966 (The Act of 1966)?.

2.

The short grievance projected by the petitioners in these petitions is

that, the petitioners are running only the dental healthcare services

in their dental clinics and are not carrying on any business, trade or

profession. Learned counsel appearing for the petitioners relies

upon Section 3 (c) of the Act of 1966 to contend that establishments

for treatment and care of the sick, infirm, destitute or mentally unfit

2 OWP No. 1532/2017

OWP No. 1847/2016

are exempted from the operation of the provisions of the Act of

1966.

3.

Learned counsel for the petitioners contends that petitioners run

dental clinics wherein all dental related services are provided to the

patients suffering from dental diseases. He submits that the activity

carried on by the petitioners is purely professional and does not

have any element of commercial activity as is understood in law.

He places reliance upon the judgment of Supreme Court in the Case

of Devendra M. Surti Vs. State of Gujarat reported as AIR 1969

SC 63, in which a similar question had come up for consideration in

the context of <Doctors? dispensary= under the Bombay Shops and

Establishments Act, 1948 [<Bombay Act=].

4.

Hon?ble Supreme Court after referring to definition of <Commercial

Establishment= given under Section 2(4) of the Bombay Act,

concluded that the >Doctors? Dispensary? ordinarily does not falls

within Section 2(4) of the Bombay Act of 1948, and it would fall

within the definition of commercial activity only if the activity is

organized in a manner in which the trade or a business is generally

organized or arranged and if the activity is systematically or

habitually undertaken for rendering material services to the

community at large or a part of such community with the help of

the employees and if such an activity generally involves

cooperation of the employer and the employees. To similar effect is

the judgment of the Bombay High Court in Narendra

Keshrichand Fuladi and another V. State of Maharashtra, 1985

3 OWP No. 1532/2017

OWP No. 1847/2016

(1) Bom. C.R. 460 in which the Bombay High Court, following the

judgment of Devendra M. Surti (Supra), held that a legal

practitioner having an office, cannot be said to be carrying on

commercial activity and, therefore, would not fall within the

definition of expression <commercial establishment=. In the later

judgment rendered in the case of Kavita Pravin Tilwani V. State

of Maharashtra, 2014 (4) Bom. C.R (Cri) 150, the High Court of

Bombay held that >medical practitioner? does not falls within the

definition of the expression <commercial activity= and therefore

was not amenable to the Bombay Act.

5.

Respondents have filed their objections in the case of M/s Sunny

Dental Clinic and the stand taken by the