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TMI Blog2015 (10) TMI 2146X X X X Extracts X X X X X X X X Extracts X X X X ..... ew to establishing a Beer and Wine Parlour, the petitioner has desired to obtain an FL-11 licence from the Excise Department. Since one of the stipulations for obtaining the said licence is to have a 'No Objection Certificate' (NOC) from the fourth respondent, the petitioner submitted Exhibit P2 application before the fourth respondent on 10.09.2014. That apart, the petitioner is also said to have submitted Exhibit P6 application to the same authority for the grant of a 'hygiene and sanitation certificate' for the Hotel. 2. For considering the applications submitted for the purpose of obtaining any licence or permission the time limit is thirty days as per Section 447 (6) of the Kerala Municipality Act (`the Act' for br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Senior Counsel has submitted that in terms of the deeming provision in Section 447 (6) of the Act, both the certificates -- the NOC and the Sanitation Certificate--are, as a matter of legal fiction, given to the petitioner. According to him, the requirement of the petitioner to produce those certificates before the excise authorities stands dispensed with. 6. Per contra, the learned Standing Counsel for the Corporation has strenuously opposed the claim of the petitioner as regards the deeming provision. Adverting to the merits of the matter, the learned Standing Counsel would contend that the petitioner had not fulfilled any of the norms prescribed for obtaining the NOC. 7. The learned Government Pleader, on his part, has subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority has the power to refuse the licence or permission in the interest of the public, within the stipulated time, however. 11. The contention of the learned Government Pleader that Beer and Wine are not included in the dangerous and offensive trade cannot be countenanced. The fact remains that foreign liquor very well includes them, as can be seen from Section 3 (12) and (13) of the Abkari Act. As a corollary, the further contention of the learned Government Pleader that no time limit is fixed concerning other trades is also required to be rejected, and is accordingly rejected. 12. Once it is accepted that a time frame has been fixed for considering an application under Section 447 (3) of the Act, it is further incumbent for me to exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted, there cannot be any hindrance against the petitioner's approaching the excise authorities, as if he had those certificates, which it would have been otherwise compelled to produce before the licencing authorities. 15. Black's Law Dictionary defines legal fiction as an assumption that something is true even though it may be untrue, made especially in judicial reasoning to alter how a legal rule operates; specifically a device by which a legal rule or institution is diverted from its original purpose to accomplish some other object indirectly. It is also termed fiction of law or fictio juris. The law lexicon further quotes from Morris R. Cohen's Law and the Social Order (1933) to the following effect: "Legal fiction is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility. P.9 of Legal Fiction by Lon L. Fuller (Stanford University Press) Legal fictions, indeed, are not allowed to work an injury, and ipso facto they are required to be construed strictly. 19. In Manish Trivedi v. State of Rajasthan (2014) 14 SCC 420 the Hon'ble Supreme Court has held that a deeming provision is enacted for the purpose of assuming the existence of a fact which does not really exist. When the legislature creates a legal fiction, the court has to ascertain for what purpose the fiction is created and after ascertaining this, to assume all those facts and consequences which are incidental or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our, the authorities, nevertheless, are not powerless to re-examine the issue in the course of time whether the petitioner has violated any statutory provision while the deemed NOC or licence has been in force. In such an event, after putting the petitioner on notice, the Municipal authorities can further determine the issue. In the above facts and circumstances, it is declared that the petitioner has the NOC, as well as the sanitation certificate, for the purpose of establishing a Beer and Wine Parlour. Consequently, the first and second respondents are directed to consider petitioner's application for Beer and Wine parlour licence treating as if the petitioner had the NOC and the sanitation certificate from the fourth respondent. No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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