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 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- . 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 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 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 context otherwise requires:- Act, unless the

(a) xxxxx

(b) “place entertainment” of public shall mean resort or 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 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 enj