Bijumon. C.P vs State Of Kerala
2023 Latest Caselaw 3777 Ker

WP(C) No. 36164 of 2022            1



              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
 THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
                          WP(C) NO. 36164 OF 2022
PETITIONER:

         BIJUMON. C.P
         AGED 57 YEARS
         S/O PAPPACHEN, CHAMAKKALAYIL AL VILLA, AYRANIKUDY
         P.O., CHERUMUKHA, MAVELIKKARA, ALAPPUZHA DISTRICT,
         PIN - 690558
         BY ADVS.
         REJI MATHEW.M
         N.SAJU THOMAS
         MATHEW VARGHESE
         SABU K. VARGHESE
         MATHEWS K. NELLUVELY
RESPONDENTS:

   1     STATE OF KERALA
         REP. BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF
         GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM, PIN - 695001
   2     THE NOORANAD GRAMA PANCHAYAT
         REP. BY ITS SECRETARY, PADANILAM P.O., ALAPPUZHA
         DISTRICT, PIN - 690529
   3     THE SECRETARY
         NOORANAD GRAMA PANCHAYAT, PADANILAM P.O., ALAPPUZHA
         DISTRICT, PIN - 690529
   4     K. R. AJAYAN
         AGED 54 YEARS,S/O RAGHAVAN, AJAYA BHAVAN,
         EDAKKUNNAM P.O., CHARUMMODU, ALAPPUZHA DISTRICT,
         PIN - 690505
         BY ADVS.
         RASHEED C.NOORANAD
         RINNY STEPHEN CHAMAPARAMPIL
         ANITHA M.N. (EKM)
         G.P., SRI. RIYAL DEVASSY


       THIS    WRIT   PETITION     (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 WP(C) No. 36164 of 2022         2




                      VIJU ABRAHAM , J.
           ===========================
                  WP(C) No. 36164 of 2022
           ============================
            Dated this the 30th day of March, 2023

                          JUDGMENT

The above writ petition is filed seeking a direction to the 3 rd

respondent not to issue a license to the 4 th respondent for

running a gymnasium in the building owned by the petitioner

without petitioner's permission. Petitioner has also sought for a

direction to the 3rd respondent to initiate steps to stop the

functioning of the gymnasium run by the 4 th respondent on the

terrace of the 1st floor of the building.

2. The specific case of the petitioner is that, he is the

owner of a two storeyed building and during August 2021, the 4 th

respondent approached the petitioner with a request to permit

him to use the terrace area of the first floor of the building for

conducting yoga classes. Eventhough the petitioner declined the

said request, later on the petitioner has granted consent to the

4th respondent to start the yoga classes, but on specific condition

that the classes will be conducted under strict supervision and

instructions as well as no sound disturbance will be caused or

music will be played during the classes.

3. Thereafter the 4th respondent again approached the

petitioner with a lease deed expressing his willingness to use the

terrace and pay an amount of Rs. 3,000/-. Though the petitioner

was agreeable for the monthly amount for using the space, he

was not agreeable to execute the deed and therefore he did not

sign it. Though the petitioner has agreed for using the building

premises for conducting yoga classes, the 4 th respondent started

bringing certain equipments used in gymnasium and gradually

started to use the space as a gymnasium.

4. The case of the petitioner is that, the 4 th respondent

has not obtained any license for running the said gymnasium as

required under the Kerala Places of Public Resort Act, 1963 from

the local authority and that the 4th respondent is running the

gymnasium illegally without a valid agreement with the

petitioner and without a valid license from the local authority.

5. Thereupon a suit was filed by the 4th respondent

against the petitioner as O.S. No. 239/2022 of the Munsiff Court,

Mavelikkara and Ext P3 order of injunction was granted in his

favour against forceful eviction from the upstairs of the house

cum shopping building of the petitioner herein. Petitioner also

relies on the judgement of this Court in Dhanya C. and Others

Vs. State of Kerala and Others [2022 (4) KHC 688], a copy

of which is produced as Ext P4, wherein this Court has issued a

direction that the license under Section 7 of the Kerala Places of

Public Resort Act, 1963 is required for running the gymnasium.

6. Thereupon the petitioner has submitted Ext P5

complaint before the 3rd respondent, Secretary of the Panchayat.

Thereafter Ext P6 communication was issued to the petitioner

intimating that the 4th respondent has been intimated by the

respondent Panchayat that he should take necessary license for

conducting the said gymnasium. Inspite of the said direction, the

4th respondent is again continuing with the gymnasium and

feeling aggrieved by the same, petitioner has approached this

Court filing the above writ petition.

7. The 4th respondent has filed a detailed counter

affidavit, wherein it is submitted that, he has obtained an interim

prohibitory order by the Civil Court, against forceful eviction as is

evident from Ext P3 and the present attempt of the petitioner is

to evict the 4th respondent by a shortcut method. The petitioner

is well aware of the fact that the 4 th respondent is running a

gymnasium in the premises owned by the petitioner and not

conducting yoga as contended by the petitioner. An advance

amount of Rs. 25,000/- was also paid as is seen from the

endorsement in Ext P2 lease agreement. It is only because of the

reason that the 4th respondent turned down the request of the

petitioner for an increase in the monthly rent, that the present

complaints have been preferred. The 4th respondent further

submits that he has preferred Ext R4(b) request for issuance of a

license and Ext R4(c) receipt is produced to substantiate the

same. But the respondent Municipality has rejected the said

application as per Ext R4(d), wherein he was intimated that the

building in which the gymnasium is being conducted is an area

having no building number assigned and only after

regularisation of the said building and after submitting an

application along with a copy of the rent deed, the application

for license will be considered.

8. When the matter came up for consideration on an

earlier occasion, this Court has directed the 2 nd respondent local

authority to conduct an inspection and file a report. Pursuant to

the same, a report has been filed along with a memo, wherein it

was reported that in the inspection conducted, it was found that

the gymnasium is being conducted by enclosing the terrace

portion by using some flex boards and that no safety measures

are being installed in the said establishment. It is further

submitted that, the gymnasium is coming under occupancy 'D'

and the building in which the said gymnasium is being

conducted is included in occupancy 'F' and that in such

occupancy the gymnasium cannot be conducted.

9. The petitioner has filed a reply affidavit, in which he

has produced Ext P7 judgement and Writ Appeal No. 1065/2022,

wherein this Court has held that a license as per the provisions

of the Kerala Municipality Act, 1994 is required for conducting a

gymnasium. Though the Court held that a license as per the

provisions of the Kerala Places of Public Resort Act, 1963 is not

required, admittedly no license is obtained as per the provisions

of the Kerala Municipality Act, 1994. Further the said

gymnasium is being conducted in an occupancy which is not

permitted to be used for conducting a gymnasium. It is also

reported that the said gymnasium is conducted by enclosing the

open terrace by using flex boards and that no provisions for any

hygiene or safety is provided.

10. In view of the same, it is clear that the 4 th respondent

is conducting the gymnasium without obtaining necessary

license and the same is functioning in a building which is

included in occupancy 'F'. The above writ petition is disposed of

with a direction to the 3rd respondent to take appropriate further

action in the matter and see that the 4 th respondent shall not

conduct the gymnasium unless obtaining a valid consent/license

from the authorities concerned. A decision in this regard shall be

taken by the 3rd respondent in accordance with law, after

affording an opportunity of being heard to the petitioner as well

as the 4th respondent.

With the above said direction, the writ petition is disposed

of.

Sd/-

VIJU ABRAHAM JUDGE

sbk/-

APPENDIX OF WP(C) 36164/2022

PETITIONER EXHIBITS ExhibitP1(a) THE PHOTOGRAPH EVIDENCING THE CRACKS DEVELOPED ON THE WALLS OF THE BUILDING Exhibit P1(b) EXT P1(B) - THE PHOTOGRAPH EVIDENCING THE CRACKS DEVELOPED ON THE WALLS OF THE BUILDING Exhibit P2 EXT P2 - COPY OF THE UNILATERAL UNDERTAKING MADE BY THE 4TH RESPONDENT DATED 01-09-2021 Exhibit P3 EXT. P3. THE COPY OF THE ORDERS DATED 03-09-2022 IN IA 1/2022 IN OS 239/2022 OF THE MUNSIFF COURT, MAVELIKKARA Exhibit P4 EXT.P4. THE COPY OF THE JUDGEMENT DATED 11-07-2022 IN WP(C) 16195/2022 OF THIS HON'BLE COURT.

Exhibit P5 EXT. P5 - THE COPY OF THE COMPLAINT DATED 17-08-2022 MADE BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

RESPONDENT EXHIBITS Exhibit R4(a) A true copy of the inauguration notice of the gymnasium PETITIONER EXHIBITS Exhibit P6 EXT.P6 - THE COPY OF THE REPLY DATE DATED 27-08-2022 OF THE 3RD RESPONDENT.

RESPONDENT EXHIBITS Exhibit R4(b) A true copy of the application preferred on 17/01/2023 before the 3rd Respondent Exhibit R4(c) A true copy of the acknowledgement receipt dated 17/01/2023 issued by the 2nd Respondent Exhibit R4(d) A true copy of the communication dated 19/01/2023 issued by the 2nd Respondent Panchayath PETITIONER EXHIBITS Exhibit P7 A copy of the judgement dated 01-03-

2023 in WA 1065 of 2022 and WA 1066 of

Exhibit P8 Copy of the relevant pages of Kerala Municipality (Issuance of Licence of Dangerous and Offensive Trade and Factories) Amendment Rules 2020 published in the official gazette as

GO(P)No 62/2020/LSGD dated 30-10-2020