TMI Blog2015 (10) TMI 2146X X X X Extracts X X X X X X X X Extracts X X X X ..... effect so as to subserve the statutory mandate. The Courts have often held that the deeming provision or the legal fiction has the impact of rendering things real and tangible, though, in fact, they are not. In that context, the deeming provision has the impact as if the petitioner had been granted licence. Once the said proposition is accepted, 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. At any rate, it is to be further observed that though in terms of the deeming provision, the NOC and Sanitation Certificate are declared to have been given, for all practical purposes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 brevity). The respondent authorities have, however, not taken within the stipulated time any decision on the applications made by the petitioner; on the other hand, they issued to the petitioner Exhibit P3 notice on 01.11.2014, informing tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 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 submitted that sub-section (3) of Section 447 deals with the granting of licence or permission for conducting dangerous or offensive trade within the municipal limits. According to him, the time limit of thirty days prescribed is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 examine the scope of sub-section 6 of Section 447, which reads as follows: (6). If the order on an application for any licence or permission is not communicated to the applicant within thirty days after the receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the mask that progress must wear to pass the faithful but blear-eyed watchers of our ancient legal treasures. But though legal fictions are useful in thus mitigating or absorbing the shock of innovation, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inevitable corollaries for giving effect to the fiction. 20. In fact, this Court in Rajesh Ramachandran v. Corporation of Trivandrum 2008 (3) KLT 419 dealing with an identical issue, having placed r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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