A gymnasium licensed under the Kerala Municipality Act does not require a separate license under the Kerala Places of Public Resort Act.

1. 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 S.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. (Ed. Note : Please See 2022 (4) KLT 437 = 2022 (4) KLT OnLine 1002 - Dhanya v. State of Kerala) 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. S.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 S.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 S.447 and other provisions of the Municipality Act, brought into force "2020 - ലെ കേരള മുനിസിപ്പാലിറ്റി (ആപല്‍ക്കരവും അസഹ്യവുമായ വ്യാപാരങ്ങള്‍ക്കും മറ്റു വ്യാപാരങ്ങള്‍ക്കും ഫാക്ടറികള്‍ക്കും ലൈസന്‍സ് നല്‍കല്‍) ഭേദഗതി ചട്ടങ്ങള്‍". In the Schedule to the said Rules, it is stipulated that gymnasium / health club requires a licence under S.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 S.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. S.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) xxxx xxxx xxxx
(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 bona fide 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 S.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 enactme