IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Wednesday, the 10th day of August 2022 / 19th Sravana, 1944
WA NO. 1066 OF 2022
AGAINST JUDGMENT DATED 11.07.2022 IN WP(C) 22937/2021 OF THIS COURT
APPELLANTS/RESPONDENTS 3 TO 5:
1. SECRETARY,NEYYATTINKARA MUNICIPALITY, MUNICIPAL OFFICE, TB JUNCTION
- HOSPITAL JCT RD, ALUMMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM
695121.
2. NEYYATTINKARA MUNICIPALITY,MUNICIPAL OFFICE,TB JUNCTION - HOSPITAL
JCT RD, ALUMMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM 695121,
REPRESENTED BY ITS SECRETARY.
3. HEALTH INSPECTOR, NEYYATTINKARA MUNICIPALITY, MUNICIPAL OFFICE, TB
JUNCTION-HOSPITAL JCT RD, ALUMMOODU, NEYYATTINKARA,
THIRUVANANTHAPURAM 695121.
BY ADVS.M/S.R.T.PRADEEP,BINDUDAS M. & K.C.HARISH
RESPONDENTS/PETITIONER & RESPONDENTS 1,2,6 & 7:
1. DHANYA C.,AGED 39 YEARS,W/O BIJU RAMACHANDRAN, DEVAGANDHARAM,
PERUMPAZHUTHOOR, NEYYATTINKARA, THIRUVANANTHAPURAM 695121.
2. BIJU RAMACHANDRAN,AGED 46 YEARS, DEVAGANDHARAM,PERUMPAZHUTHOOR,
NEYYATTINKARA, THIRUVANANTHAPOURAM 695121.
3. STATE OF KERALA, REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695001.
4. DISTRICT COLLECTOR, THIRUVANANTHAPURAM, 2ND FLOOR, CIVIL STATION
BUILDING, CIVIL STATION ROAD, THIRUVANANTHAPURAM, KERALA - 695043.
5. ROY C.K., S/O KRISHNAN.K., ROY BHAVAN, THOONGAMPARA, KANDALA P.O.
THIRUVANANTHAPURAM- 695512.
6. STATION HOUSE OFFICER, NEYYATTINKARA POLICE STATION, NEYYATTINKARA,
KATTAKADA ROAD, ALUMMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM
695121.
BY ADV.SRI.L.RAJESH NARAYAN FOR R1 & R2
SENIOR GOVERNMENT PLEADER SRI.V.TEKCHAND FOR R3,R4 & R6
ADV.SMT.SINDHU SANTHALINGAM FOR R5
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of common Judgment dated 11.7.2022 in W.P.(C)
No.22937/2021 by the learned Single Judge of this Hon'ble Court, pending
disposal of Writ Appeal.
This Writ Appeal coming on for admission along with connected case
on 10/08/2022 upon perusing the appeal memorandum, the court on the same
day passed the following:
S.Manikumar, C.J.
&
Shaji P.Chaly, J.
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W.A.Nos.1065 & 1066 of 2022
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Dated this the 10th day of August, 2022
ORDER
S.Manikumar, C.J.
Before the writ court, the petitioner in W.P.(C)No.16195 of 2022/respondent No.1 in W.A.No.1065 of 2022, sought for the following reliefs:
"i) Call for the records leading to the issuance of Exhibit.P8 order and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction;
ii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 4 th respondent to permit the petitioner to operate the gym in accordance with law;
iii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 4 th respondent to consider the application for license under Kerala Place of Public Resorts Act and under the Municipalities Act and allow the petitioner to operate the gymnasium until disposal of the same."
W.A.Nos.1065 & 1066 of 2022 -:2:-
2. Short facts leading to the filing of W.P.(C)No.16195 of 2022 are as hereunder:
The petitioner is running a fitness centre under the name and style "High Power Multi-gym and Fitness Centre" within the limits of 4th Respondent - Neyyattinkara Municipality, after obtaining Exhibit P3 licence. Respondents 8 and 9, who are adjacent plot owners of petitioner's commercial building wherein the above gym is situated, started to make complaints after complaints against the functioning of the gym without any valid reason. The main allegation was that the music played in the gym is causing noise pollution. The authorities concerned realised that there is no nuisance from running the gym by the petitioner as alleged. Simultaneously, respondents 8 and 9 filed W.P.(C)No. 22937 of 2021 on vague allegations.
During the pendency of the writ petition, on 31.3.2022, the term of Exhibit P3 licence has expired and the petitioner applied for renewal of the same. He also applied for licence W.A.Nos.1065 & 1066 of 2022 -:3:- under the Kerala Places of Public Resort Act, 1963. As per Exhibit P7, this court was pleased to pass an order not to use musical instrument for the present and also observed that the petitioner can continue to use the musical treatment on obtaining necessary licence subject to the conditions therein.
The 4th respondent also submitted before the court that they will complete the process of renewal of licence by 25.04.2022.
To the utter shock and dismay, without having any jurisdiction, on 05.5.2022, the Health Supervisor of 4 th respondent Municipality issued Exhibit P7 impugned order rejecting the petitioner's application for licence. Even though he claimed that an inspection was conducted by him, no notice of such inspection was served on the petitioner and no explanation/opportunity of hearing was called for. Moreover, the action of the 7th respondent deprived petitioner's fundamental right guaranteed under Article 19(1)(g) of the Constitution of India.
W.A.Nos.1065 & 1066 of 2022 -:4:-
3. After considering the rival submissions and statutory provisions under the Kerala Places of Public Resort Act, 1963 vis-a-vis the Kerala Municipality Act, 1994 and the Rules framed thereunder, writ court, vide judgment dated 11.07.2022 in W.P.
(C)Nos.22937 of 2021 and 16195 of 2022, ordered thus:
"Therefore, these writ petitions are disposed of with the following directions :
1) The application submitted by the petitioner in W.P. (C.) No. 16195/2022 for licence as per The Kerala Places of Public Resort Act, 1963 shall be considered by the 3rd and 4th respondents in that writ petition, in the light of the observations made in this judgment as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.
2) Till final orders are passed in the application for licence submitted by the petitioner in W.P.(C.) No. 16195/2022, the interim order dated 5.4.2022 in W.P.(C.) No. 22937/2021 will continue.
3) Before passing final orders in the application submitted for licence as per the Act, 1963, an opportunity of hearing should be given to the petitioners in W.P(C.) No. 22937/2021 and W.P(C.) No. 16195/2022.
W.A.Nos.1065 & 1066 of 2022 -:5:-
4) The 1st respondent-State of Kerala will issue a general direction to all the Corporations, Municipalities, and Panchayats to find out whether any gymnasiums are functioning in their area of operation without getting a licence as per The Kerala Places of Public Resort Act, 1963 and if there is no licence to any of them, a notice must be issued to those gymnasiums to get a licence within three months. Till notice is issued to the individual gymnasiums for getting licence as per The Kerala Places of Public Resort Act, 1963, their functioning shall not be disturbed, for a period of three months from the date of receipt of the notice demanding the necessity of getting a licence.
5) Registry will forward a copy of this judgment to the 1st respondent forthwith and the 1st respondent will issue the general direction as directed above within three weeks from the date of receipt of this judgment."
4. Being aggrieved, these writ appeals are filed inter alia on the following grounds:
A. The impugned Judgment to the extent of enforcing Act 40 of 1963 so far it relate to gymnasium is in violation of Article 243 ZF of Part IX A of the Constitution and Sections 447, 448, 449, 450, 565 of Kerala Municipality Act, 1994 and Industries, Factories, Trades, Entrepreneurship And Other Services (Grant of Licence) Rules, 2020. The Act 40 of 1963 so far it relate to W.A.Nos.1065 & 1066 of 2022 -:6:- gymnasium is impliedly repealed being inconsistent with Part IX A and by the provisions of Act 20 of 1994 and the Rules framed thereunder. Hence the impugned direction to enforce Act 40 of 1963 with respect to gymnasium is arbitrary, perverse, unreasonable and violative of Article 14 of the Constitution of India.
B. Gymnasiums being specifically enumerated under 2020 Rules framed under Act 20 of 1994, that would override the provisions of Act 40 of 1963. The impugned Judgment is totally silent as to the enforcibility of Act 20 of 1994 and the rules framed thereunder. The Act 40 of 1963 cannot be enforced by overreaching the latter enactments brought in line with constitutional requirement. Hence the requirement of licence for gymnasium is confined to the provisions of the latter Act and the contrary view is against the Constitution. C. The perception of gymnasium underwent a sea change from Act 40 of 1963 to Act 20 of 1994. Regulation of gymnasium is the motto under the former Act whereas establishment and sustenance of gymnasiums which is an integral part of maintaining public health is conceived as a constitutional and statutory obligation of municipality. The requirements and procedure for grant and renewal of licence under Act 40 of 1963 are inconsistent with the constitutional obligation as well as the requirements and procedure for grant and renewal of W.A.Nos.1065 & 1066 of 2022 -:7:- licence under Act 20 of 1994 and the Rules made thereunder. The licence for gymnasium as contemplated under Act 40 of 1963 being inconsistent with Part IX A and Kerala Municipality Act 1994 and the rules made thereunder cannot survive by virtue of Article 243 ZF.
D. The Act 40 of 1963 so far it relate to gymnasium, fell in disuse by the coming into force of Act 20 of 1994. For the last more than two decades, gymnasiums are functioning with the licence granted under Section 447 of Kerala Municipality Act, 1994. Hence mandamus cannot be issued to enforce an Act which has now become obsolete by falling in disuse by the principle of desuetude.
E. The new generation gymnasiums under the nomenclature of health clubs and fitness centres where mechanically propelled gadgets are being used and functioning with limited membership cannot be equated with the gymnasium as conceived under Act 40 of 1963. Therefore the obsolete law cannot be pressed into motion in derogation of the latter enactments specifically dealing with gymnasiums. F. The Act 40 of 1963 is not a special enactment for gymnasiums. The Act is primarily concerned with public resorts or entertainments. Gymnasium which will not come under the definitional fiat of public resorts or entertainments under Section 2(b) is included by virtue of specific inclusion. But for W.A.Nos.1065 & 1066 of 2022 -:8:- the specific enumerated inclusion, gymnasium cannot be brought under public resorts or entertainments G. The licensing authority is devoid of power to ensure conditions to abate nuisance, if any, caused to neighbouring owners under Act 40 of 1963. The conditions to be complied under the Act are confined to the situs and nature of building under Rule 3 of the Kerala Places of Public Resort Rules, 1965. H. The Municipality is proposing to impose stringent conditions like all noises emanating from the gym shall be abated, the functioning shall be strictly confined to the hours for which licence is granted, register shall be insisted for the membership of the gym, specific time slot shall be given for members to use the gym, the number of persons using the gym at a time shall be regulated by not exceeding 15, the details of the members shall be furnished to the Municipality, identity card shall be ensured, the conduct of the members shall be without causing any nuisance to the persons residing in the locality. It is possible to impose such conditions only on grant of licence under Section 447 of Act 20 1994 r/w Rules.
5. Heard Mr.R.T.Pradeep, learned counsel for the appellants/respondents 3 to 5 in both the writ petitions. W.A.Nos.1065 & 1066 of 2022 -:9:-
6. Considering the issues raised, in particular, applicability of the provisions of the Kerala Places of Public Resort Act, 1963 vis-a-vis the Kerala Municipality Act, 1994 and the Rules framed thereunder, insofar as grant of licence to a gymnasium is concerned, we deem it fit to entertain the writ appeals. Hence the writ appeals are admitted.
7. Smt.Sindhu Santhalingam, learned counsel takes notice for respondent No.1 in W.A.No.1065 of 2022. Sri.V. Tekchand, learned Senior Government Pleader takes notice for respondents 2, 3 and 5. Sri.T.Naveen, learned standing counsel takes notice for respondent No.4. Sri.L.Rajesh Narayan, learned counsel takes notice for respondent Nos.6 and 7.
8. Sri.L.Rajesh Narayan, learned counsel takes notice for respondent Nos.1 and 2 in W.A.No.1066 of 2022. Sri.V.
Tekchand, learned Senior Government Pleader takes notice for respondents 3, 4 and 6. Smt.Sindhu Santhalingam, learned counsel takes notice for respondent No.5.
W.A.Nos.1065 & 1066 of 2022 -:10:-
9. There shall be an interim stay of the operation of clause (1) of the directions.
As the gymnasium is stated to be running, it shall continue to do so until further orders.
Sd/-
S.Manikumar Chief Justice Sd/-
Shaji P.Chaly Judge vpv 10-08-2022 /True Copy/ Assistant Registrar