2008 (6) TMI 608 - HC - Customs

Summary

Issues involved: The main issue in this case is whether the petitioner is entitled to a deemed license as per sec.447(6) of the Kerala Municipality Act, 1994.

Controversy and Facts:
The petitioner sought relief to carry on a retail store in a building owned by the Corporation of Thiruvananthapuram. The petitioner applied for a license on 13.3.2008, but the respondent pointed out inadequacies in the application. The respondent later declined the license on 23.4.2008. The petitioner claimed that as no response was received within thirty days of application, they were entitled to a deemed license and started the business on 28.4.2008. The respondent contended that the application was defective and the order declining the license was communicated within the prescribed time.

Legal Provisions:
Sec.447(3A) of the Act states the procedure for granting or refusing a license within fifteen days of application. Sec.447(6) provides for a deemed license if the order is not communicated within thirty days of application.

Petitioner's Argument:
The petitioner argued that the communication declining the license was issued beyond the 30-day limit, entitling them to a deemed license u/s 447(6).

Court's Decision:
The court accepted the petitioner's argument, citing that the communication was indeed issued beyond the prescribed time, thus entitling the petitioner to a deemed license as per sec.447(6) of the Act. The court referred to previous judgments to explain the effect of legal fiction and held that the petitioner should benefit from the statutory provisions.

Final Judgment:
The writ petition was disposed of in favor of the petitioner, granting them a deemed license u/s 447(6) and restraining the respondent from preventing the petitioner from operating the retail shop. However, the Corporation was allowed to take legal action if any provisions of the Act, Rules, or Bye-laws were not complied with, with prior notice to the petitioner.