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2015 (10) TMI 2146 - KERALA HIGH COURT

2015 (10) TMI 2146 - KERALA HIGH COURT - TMI - Denial of FL-11 licence - establishing a Beer and Wine Parlour - NOC not taken within stipulated time - Held that:- Section 447 (3) of the Act prescribes a time limit of thirty days for the authorities to consider any application filed to obtain any licence to use a place for conducting a dangerous or offensive trade. Indeed, the authority has the power to refuse the licence or permission in the interest of the public, within the stipulated time - A .....

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e 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, in the petitioner's favour, the authorities, nevertheless, are not powerless to re-examine the issue in the course of time whether the petitioner has violated .....

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ad the NOC and the sanitation certificate from the fourth respondent - Decided in favour of appellant. - W.P.(c) No. 18118 of 2015 - Dated:- 19-8-2015 - Dama Seshadri Naidu, J For the Petitioner : Sri.T.A.Shaji (Sr.), Smt.K.P.Sheeba, Smt.Namithajyothish, Sri.V.Vincent Didacose And Sri.Darsan Somanath For the Respondent : Sri.Praveenk.Joy,Sc,Cochin Corporation, Sri.P.K.Soyuz,Sc,Cochin Corporation And Sr. Government Pleader Sri. K.C. Vincent JUDGMENT The petitioner, a unit of a Private Limited Com .....

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pplication 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 .....

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Section 447(6) of the Act. 4. Mr. T. A. Shaji, the learned Senior Counsel for the petitioner, has submitted that sub-section (6) of Section 447 has incorporated the deeming provision and that since thirty days has elapsed from the date of petitioner's making an application, the advantage of the said deeming provision has to be applied with full vigour in petitioner's favour. The learned counsel has also pointed out that though sub-sections (6) to (8) of Section 447 had been deleted thro .....

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atter 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 .....

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angerous and Offensive Trade Licensing Rules, 2011 does not include Beer and Wine under any category of the dangerous and offensive trades. Referring to Item 154 in Schedule I, the learned Government Pleader would contend that it only enumerated spirit, toddy and foreign liquor, but not beer or wine. 8. The learned Senior Counsel in reply has, however, countered the submissions of the learned Government Pleader that the Beer and Wine have not been included under dangerous and offensive trades. A .....

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conducting a dangerous or offensive trade. Indeed, the authority 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 .....

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days after the receipt of the application by the Secretary or within such longer period, as may be prescribed in any class of cases the application shall be deemed to have been allowed for the period required in the application, subject to the Act, rules and bye-laws and all conditions which would have been ordinary imposed." 13. Indisputably, the above extracted provision stood omitted through Act 14 of 1999 with effect from 24.03.1999. Later, the legislature has, however, reincorporated i .....

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tatutory 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 produc .....

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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 work havoc in the form of intellectual confusion." 16. Writers on jurisprudence have regarded fiction as a remedial institution like equity and not as a unit in legislative law-making because the employment of legal fictions .....

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the scope and reach of a rule; 2) as a terminological device; 3) to secure economy of speech and didactics; and 4) to enact provisions ex majori cautela [out of an abundance of caution] to render certain that which might be regarded as uncertain. 18. As Lon L. Fuller has observed, the influence of the fiction extends to every department of the jurist's activities.' Bentham has detested the pestilential breath of Fiction', whereas Backstone has felt that legal fictions are highly bene .....

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ovision 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 p .....

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