Kerala High Court
Secretary vs Roy C K on 10 August, 2022
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. 1065 OF 2022
AGAINST JUDGMENT DATED 11.07.2022 IN WP(C) 16195/2022 OF THIS COURT
APPELLANTS/RESPONDENTS 3 TO 5:
1. SECRETARY, NEYYATTINKARA MUNICIPALITY,MUNICIPAL OFFICE, TB JUNCTION
- HOSPITAL JUNCTION ROAD, ALUMMOODU, NEYYATTINKARA,
695121.THIRUVANANTHAPURAM.
2. NEYYATTINKARA MUNICIPALITY, MUNICIPAL OFFICE, TB JUNCTION - HOSPITAL
JUNCTION ROAD, ALUMMOODU, NEYYATTINKARA-695121, THIRUVANANTHAPURAM.
3. HEALTH SUPERVISOR, NEYYATTINKARA MUNICIPALITY, MUNICIPAL OFFICE, TB
JUNCTION - HOSPITAL JUNCTION ROAD, ALUMMOODU, NEYYATTINKARA-695121,
THIRUVANANTHAPURAM.
BY ADVS.M/S.R.T.PRADEEP, BINDUDAS M. & K.C.HARISH
RESPONDENTS/PETITIONER & RESPONDENTS 1,2, 6 TO 9:
1. ROY C K., AGED 39 YEARS S/O KRISHNAN K., ROY BHAVAN, THOONGAMPARA,
KANDALA P.O., THIRUVANANTHAPURAM 695512.
2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, M LOCAL
SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695001.
3. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM, 2ND FLOOR, CIVIL STATION
BUILDING,CIVIL STATION ROAD,THIRUVANANTHAPURAM DISTRICT-695043.
4. KERALA STATE POLLUTION CONTROL BOARD, PLAMOODU, PATTOM P.O.,
THIRUVANANTHAPURAM DISTRICT - 605014.
5. THE DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF THE DEPUTY
SUPERINTENDENT OF POLICE,NEYYATTINKARA - 695121.
6. DHANYA C., AGED 39 YEARS, W/O BIJU RAMACHANDRAN,
DEVAGANDHARAM, PERUMPAZHUTHOOR,NEYYATTINKARA,THIRUVANANTHAPURAM
DISTRICT 695121.
7. BIJU RAMACHANDRAN,AGED 46
YEARS,DEVAGANDHARAM,PERUMPAZHUTHOOR,NEYYATTINKARA,THIRUVANANTHAPURAM
DISTRICT 695121.
ADV.SMT.SINDHU SANTHALINGAM FOR R1
SENIOR GOVERNMENT PLEADER SRI.V.TEKCHAND FOR R2, R3 & R5
STANDING COUNSEL SRI.T.NAVEEN FOR R4
ADV.SRI.L.RAJESH NARAYAN FOR R6 & R7
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.16195/2022 by the learned Single Judge of this Hon'ble Court, pending
disposal of Writ Appeal.
This Writ Appeal coming on for admision 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. 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
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
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
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
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
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
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
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
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
