Kerala High Court
The Secretary vs Dhanya C on 1 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944
WA NO. 1065 OF 2022
WP(C) 16195/2022 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 3-5:
1 SECRETARY,
NEYYATTINKARA MUNICIPALITY, MUNICIPAL OFFICE, TB
JUNCTION - HOSPITAL JUNCTION ROAD, ALUMMOODU,
NEYYATTINKARA, 695121THIRUVANANTHAPURAM.
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.
R.T.PRADEEP
M.BINDUDAS
K.C.HARISH
RESPONDENTS/PETITIONER & RESPONDENTS 1, 2, 6-9:
1 ROY C K.,
AGED 39 YEARS
S/O KRISHNAN.K., ROY BHAVAN, THOONGAMPARA,
KANDALA P.O., THIRUVANANTHAPURAM 695512.
WA No. 1065 & 1066 of 2022
..2..
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.
BY ADVS.
SINDHU SANTHALINGAM
SENIOR GOVERNMENT PLEADER SRI.V.TEK CHAND (B/O)
DEEPAK RAJ
ABRAHAM K GEORGE
AKBAR K.A.
C.P.ROOPA
CHINJU P. JOYIES
VAMADEV NARAYANAN K.M.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
01.03.2023, ALONG WITH WA.1066/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WA No. 1065 & 1066 of 2022
..3..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944
WA NO. 1066 OF 2022
WP(C) 22937/2021 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 3-5:
1 THE SECRETARY, NEYYATTINKARA MUNICIPALITY,
MUNICAL 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.
R.T.PRADEEP
M.BINDUDAS
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.
WA No. 1065 & 1066 of 2022
..4..
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 ADVS.
SRI.L.RAJESH NARAYAN (B/O)
A.D.SHAJAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
01.03.2023, ALONG WITH WA.1065/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WA No. 1065 & 1066 of 2022
..5..
JUDGMENT
A. MUHAMED MUSTAQUE, J.
The point of law involved in these appeals at
the instance of the Neyyattinkara Municipality
is whether an owner of gymnasium/health
club/fitness centre is required to obtain a
licence under the Kerala Places of Public
Resort Act, 1963 (for short, "Act 40 of 1963")
over and above the licence obtained under
Section 447 of the Kerala Municipality Act,
1994 (for short, "the Municipality Act").
2. The learned Single Judge was of the view that
licence is required under both the enactments.
Aggrieved by this, the Neyyattinkara
Municipality has come up in these appeals. We
are not adverting to the facts leading to the
issue for the obvious reason that now what is
to be decided in these appeals is only a point
of law.
3. The Municipality Act is a replacement of
WA No. 1065 & 1066 of 2022
..6..
earlier enactments relating to Municipalities
and Municipal Corporations. Section 447 of the
Municipality Act provides that no place within
the Municipal area shall be used without
licence. It also authorizes the Municipality
to fix the terms and conditions of licence to
be issued. The first proviso to Section 447 of
the Municipality Act mandates that licence
shall not be detrimental to any public
interest. This aspect is significant in these
appeals for decision.
4. The Government of Kerala, by virtue of the
powers conferred on them under Section 447 and
other provisions of the Municipality Act,
brought into force "2020-ല ക രള മ ന സ പ റ
(ആപൽകരവ അസഹ വ മ യ വ പ രങൾക മറ
വ പ രങൾക ഫ കറ ൾക ല സൻസ" നൽ ൽ)
ക#ദഗത ചടങൾ". In the schedule to the said
Rules, it is stipulated that gymnasium/health
club requires a licence under Section 447 of
the Municipality Act. There is no dispute on
WA No. 1065 & 1066 of 2022
..7..
this aspect.
5. The present dilemma appears to have arisen in
a context, where a neighbour of a fitness
centre in Neyyattinkara Municipality raised a
complaint that the owner had not obtained
licence from the Municipality. That appears to
be a genuine complaint. Subsequently, the
owner obtained licence under Section 447 of
the Municipality Act. Thereafter, it was
contended that a licence under the Act 40 of
1963 is also required. The learned Single
Judge, accepting that contention, directed
that no gymnasium shall be conducted without
obtaining licence under the Act 40 of 1963 as
well. That means, licence under both the
enactments is required to operate a gymnasium.
The issue in these appeals is whether licence
is required under both the enactments.
6. The Act 40 of 1963 is an enactment of the
year, 1963, relating to licensing and
inspection of places of public resort or
WA No. 1065 & 1066 of 2022
..8..
entertainment in the State of Kerala. Section
2(b) of the Act 40 of 1963 defines "place of
public resort or entertainment", which is
reproduced below;
"2. Definitions:- In this Act, unless the
context otherwise requires:-
(a) xxxxx
(b) "place of public resort or
entertainment" shall mean any place,
enclosure, building, tent, booth or other
erection whether permanent or temporary,
where music singing, dancing or any
diversion or game or the means of carrying
on the same is provided, and to which
public are admitted either on payment of
money or with the intention that money may
be collected from those admitted,
otherwise than for bonafide charitable or
religious purpose, and shall include a
race-course, circus, theatre, music hall,
billiard room, bagatelle room, gymnasium
and fencing school."
7. Perhaps, taking the clue, the reference to
"gymnasium" in Section 2(b), the learned Judge
was of the view that gymnasium also requires a
licence under the Act 40 of 1963. It seems
that a certain open area or an enclosed area
including a building, if made a public place
of resort, licence is to be obtained under the
above enactment. The public resort, here, has
WA No. 1065 & 1066 of 2022
..9..
to be understood as a place, where the public,
without there being a predetermined
understanding of contract, enters into and
enjoys singing, dancing and such other
activities. We need go into the circumstances,
in which such enactment was made. In our
country, it is a practice that many temporary
or some arrangements are made, where public
would throng for enjoyment. The gymnasium or
any other place otherwise operates based on a
contract entered into with the beneficiaries
of such service cannot be understood to mean a
"place of public resort". Though a licence
condition under Section 447 of the
Municipality Act stipulates that there cannot
be discrimination among the beneficiaries of
service, that does not mean that the public,
as a matter of right, without there being a
contract, can enter into such place and enjoy
services being the member of the public. In
every private place, where a service is being
WA No. 1065 & 1066 of 2022
..10..
provided, there is an implied contract between
the provider and the beneficiary of their
service. It is in the realm of the autonomy of
aforesaid parties to avail and accept such
service. Entrance to such places would be
based on the terms and conditions of the
operator. It is only a place of business,
wherein business is entertained without there
being any fixed norm or without any
predetermined contract between the parties,
that could be classified as a public resort.
It also appears that the building or place,
where such entertainment is offered, has no
fixed nature of user criteria. We cannot
assign a meaning to public resort out of
context. The Municipality Act having regulated
licence for operation of normal gymnasiums
taking note of the larger public interest, the
operator of the gymnasium cannot now be
insisted to obtain another licence under the
Act 40 of 1963.
WA No. 1065 & 1066 of 2022
..11..
8. It is to be noted that the licence under the
Act 40 of 1963 has to be obtained from the
very same authority. In both statutory
provisions, while issuing licence, the
Municipality has to advert to the public
interest. Since the Municipality Act is a
later enactment and the aspects related to
public interest have to be safeguarded as
provided under the Act 40 of 1963, there is an
implied repeal of the provisions of the Act 40
of 1963 so far as it is governed by the
Municipality Act. We make it clear that the
requirement of licence under the Act 40 of
1963 would stand repealed by the Municipality
Act so far as it is related to obtain licence
under the Municipality Act.
We thus allow the appeals, modifying the
impugned judgment to the extent that no
licence is required to operate gymnasium under
the Act 40 of 1963. However, we make it clear
that if any person has a complaint regarding
WA No. 1065 & 1066 of 2022
..12..
the operation of the gymnasium affecting
his/her normal life, the Municipality shall
act on such complaint and take appropriate
action in accordance with law. The
Municipality, while issuing licence under the
Municipality Act, shall also stipulate such
condition ensuring peaceful living in the
neighbourhood as well. The impugned judgment
is set aside to the extent as above.
Sd/-
A. MUHAMED MUSTAQUE
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
