2015 (10) TMI 2146 - HC - Indian Laws

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 deeming provision being a facet of legal fiction, it is required to be given full 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, 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 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. - 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 - Decided in favour of appellant.

Summary

Issues:
Delay in processing license applications under the Kerala Municipality Act; Interpretation of Section 447(6) of the Act regarding deeming provision for granting licenses; Inclusion of Beer and Wine under dangerous and offensive trades; Legal implications of deeming provisions in legislative enactments.

Analysis:
The petitioner, a unit of a Private Limited Company, applied for an FL-11 license to establish a Beer and Wine Parlour, requiring a 'No Objection Certificate' (NOC) from the fourth respondent. Despite the stipulated 30-day time limit for processing applications under Section 447(6) of the Kerala Municipality Act, the authorities failed to make a decision within the timeframe, issuing a notice of non-granting of NOC after the deadline. The petitioner also applied for a hygiene and sanitation certificate, which was not addressed post the NOC notice. The petitioner approached the Court challenging the non-granting of NOC and seeking a declaration that the NOC is deemed to have been granted as per the Act.

The Court examined the legislative history of Section 447(6) and reinstatement of the deeming provision, emphasizing that the statutory provision must be applied to the petitioner's application due to the failure to consider it within 30 days. Legal fictions, as per Black's Law Dictionary, alter legal rules to achieve specific objectives, and the Court held that the deeming provision should be given full effect, treating the petitioner as having been granted the license.

Regarding the classification of Beer and Wine as dangerous and offensive trades, the Court rejected the argument that they were excluded, citing the Abkari Act's definition of foreign liquor, which encompasses Beer and Wine. The Court upheld that a time frame exists for processing applications under Section 447(3) and that the deeming provision applies to the petitioner's case, granting them the benefit of the provision.

The Court referenced previous judgments to support its interpretation of legal fictions, emphasizing that the law recognizes these fictions as realities for specific legal consequences. While the petitioner is deemed to have the necessary certificates, the authorities retain the power to re-examine compliance with statutory provisions post the deemed grant. Ultimately, the Court declared that the petitioner possesses the NOC and sanitation certificate for the Beer and Wine Parlour license application, directing the authorities to consider the application as if the certificates were obtained.