DHANYA C Vs. STATE OF KERALA

JUDGEMENT

(1.) The main point to be decided in these writ petitions is whether a licence is necessary as per the Kerala Places of Public Resort Act, 1963 (for short, Act 1963) for starting and functioning a gymnasium. It is conceded by both sides in these cases that several gymnasiums are working in our state without getting licence as per the Act 1963. Gymnasium have become a holy places like temples, mosques, churches etc for the young and the older people alike in the current world. Going to the gym is taken as a credit by men and women of all age groups. That is a good signal for achieving a healthy world. But the atmosphere in a Gymnasium should be attractive, and it should function legally after obtaining all the statutory licences.

(2.) The above two writ petitions are connected and therefore I am disposing these writ petitions by a common judgment. I will narrate the facts in W.P.(C). No.22937 of 2021. The petitioners are aggrieved by the functioning of a fitness centre with the name and style 'High Power Multi Gym and Fitness Centre' without obtaining a licence from the 4th respondent Neyyattinkara Municipality. According to the petitioners, the gym has been functioning without licence; moreover, the construction of the building in which it is situated is unauthorised. The petitioners submitted an application under the Right to Information Act 2005 before the Municipality, and the 4th respondent informed that there is no licence issued to the 6th respondent for conducting the 'High Power Multi Gym and Fitness Centre.' Ext.P1 is the information received dated 29.09.2021. According to the petitioners, they are facing various difficulties because of this gym. It creates a problem for a peaceful stay at their residence. The gym starts functioning from 5 am to 9 am and 4 pm to 9.30 pm. At the time of functioning the gym, music is played loud, and the petitioners are not in a position to stay at their house because of the horrible noise from the gym. It is also the case o f the petitioners that the customers of the gym used to lean on the walls and peep into the house of the petitioners. The petitioners submitted Ext.P2 complaint before the 3rd respondent, Secretary of the Municipality, but nothing transpired till date. Thereafter the petitioners submitted complaint to different authorities, as evident by Exts.P3, P4, and P5. In furtherance of Ext.P2 complaint, the petitioners called for a hearing and Exts.P6 is the hearing notice. But nothing has taken place thereafter. Ext.P7 and P8 are the other complaints submitted by the petitioners. Ext.P9 is yet another complaint submitted before the 3rd respondent requesting not to issue a licence to the 6th respondent and to close down the unauthorised functioning of the gym. It is also the case of the petitioners that the construction of the building is also in violation of the permit and the approved plan. Ext.P10 is the building permit and Ext.P11 is the occupancy certificate. The petitioners submitted Ext.P12 complaint to the 3rd respondent pointing out these violations. Ext.P13 is the completion plan. According to the petitioners, a perusal of Ext P13 with photographs will reveal that the construction effected is in violation of the approved plan. It is the further case of the petitioners that there is no set back provided as per the statutory requirements. In such circumstances, this writ petition is filed with the following prayers: i. Issue a writ in the nature of mandamus or any other appropriate order of direction commanding the respondents 3 to 5 to forthwith initiate action to stop the functioning of the fitness centre by name 'HIPOWER MULTI GYM AND FITNESS CENTRE', being conducted by the 6th respondent in the building No. No.8/687-1.

(3.) A counter-affidavit is filed by the 6th respondent disputing the averments in the writ petition. The 6th respondent submitted that Ext.R6(a) is the building permit issued by the authorities and Ext.R6(b) is the tax receipt issued by the Neyyattinkara Municipality. It is also stated that the unauthorised extension was removed and the Municipality has granted licence to the 6th respondent. Ext.R6(c) is the licence. It is also the case of the 6th respondent that the petitioners are doing business in Arishtam without complying with the statutory requirements. Exts.R6(d), R6(e) and R6(f) are the complaints submitted by the 6th respondent against the petitioners. A reply affidavit is filed by the petitioners in which it is stated that the functioning of the gym is without getting licence as per the Act 1963. It is also stated that on account of the disturbance, the petitioners are forced to leave their house at 5 am everyday and return home only by 9.30 pm.