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2018 DIGILAW 961 (KER)

Abdul Kharim v. Pazhayakunummel Grama Panchayath

2018-11-28

A.MUHAMED MUSTAQUE, ASHOK MENON, K.VINOD CHANDRAN

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ORDER : A. Muhamed Mustaque, J. This Writ Appeal is referred to the Full Bench by a Division Bench doubting the correctness of the judgment of a Division Bench in Sudhakaran v. Pallichal Grama Panchayat, 2016 (2) KLT 175 . 2. The matter raises a point of construction of provisions related to deemed licence under S.236(3) of the Kerala Panchayat Raj Act, 1994, (hereafter referred to as the Act, for short). 3. The appellants before the Division Bench are the petitioners in the Writ Petition. They submitted an application for building permit on 07.02.2018. The Panchayath noted certain defects in the application and returned the application on 12.02.2018. The resubmitted application was again returned before the expiry of 30 days. However, no order was passed within 30 days on the application. 4. The petitioners approached this Court seeking a writ of mandamus directing the Secretary of the Panchayath to issue building permit based on the ‘deemed permit’ under S.236(3) of the Act. According to the petitioners, the Panchayath having failed to disapprove the building permit within a period of 30 days of submitting an application, a deemed permit would come into existence on expiry of such 30 days. 5. A learned Single Judge of this Court in Rajesh Ramachandran v. Corporation of Trivandrum, 2008 (3) KLT 419 interpreted the provisions under the Kerala Municipality Act, 1994 in regard to deemed permit, opining that if an application for licence is not rejected and communicated within 30 days, a deemed permit would come into existence even in a circumstance where the applicant was intimated about the defect in the application, within 30 days. The Division Bench approved the dictum in Rajesh Ramachandran’s case in Sudhakaran’s case (supra) without noticing the distinguishing facts involved in both the cases. The factual circumstances involved in Sudhakaran’s case would go to show that it was not a case where the application was found defective and the applicant was intimated about the defects in the application within 30 days. Though the facts involved in Sudhakaran’s case is different, the Division Bench approved that dictum in Rajesh Ramachandran’s case. It is to be noted that the Division Bench which heard the matter in Sudhakaran’s case was on a reference from the learned Single Judge who did not agree with the interpretation of the law in Rajesh Ramachandran’s case. 6. Though the facts involved in Sudhakaran’s case is different, the Division Bench approved that dictum in Rajesh Ramachandran’s case. It is to be noted that the Division Bench which heard the matter in Sudhakaran’s case was on a reference from the learned Single Judge who did not agree with the interpretation of the law in Rajesh Ramachandran’s case. 6. We find the Division Bench, in the factual circumstances of that case, was right in regard to the interpretation of relevant provisions regarding deemed licence in as much as that the Panchayath did not issue any communication to the applicant within 30 days in regard to the application for the licence. We find at the same time the Division Bench erred in approving the dictum in Rajesh Ramachandran’s case for the reasons stated hereafter. 7. We find that the facts involved in Rajesh Ramachandran’s case and in the instant case are almost similar for the decision on the question of law involved. In both the cases, the application was found defective and communication was issued to the applicant before the expiry of 30 days. 8. It is appropriate to refer the deeming provision as referred in S.236(3) of the Act. It reads thus: “236. General provisions regarding licences and permissions.- (1) ..... (2) ..... (3) Save as aforesaid, if orders on application for any such licence or permission are not communicated to the applicant within thirty days or such longer period as may be prescribed in any class of cases after the receipt of the application by the Secretary, the application shall be deemed to have been allowed for the period, if any, for which it would have been ordinarily allowed and subject to the law, rules and bye-laws and all conditions ordinarily imposed”. 9. A deeming provision is based on legal fiction for attaining a desired legal consequence. Therefore it will have to be strictly interpreted. It becomes operational only upon such factors as referred and exist under the statutory provision. The court cannot eschew the elements that are required to form part of legal fiction while interpreting the provision. All the elements must be satisfied to give effect to the deeming provision. Therefore, we have to examine the elements which are required to declare that the applicant would be entitled to a deemed licence. The court cannot eschew the elements that are required to form part of legal fiction while interpreting the provision. All the elements must be satisfied to give effect to the deeming provision. Therefore, we have to examine the elements which are required to declare that the applicant would be entitled to a deemed licence. The court also will have to consider the very object of such deeming provision in the light of the statutory provisions. 10. The local authority will have to act promptly on an application for licence or permit. That is the reason why the Statute stipulates time bound consideration of such application. The law makers felt that an applicant should not be denied of his fundamental right to effectuate business or such other activities on account of the inert attitude of a local authority. The very fixation of the outer limit is therefore to uphold the fundamental rights of the citizens. 11. There are two elements that would require to be established by an applicant to entitle him for a ‘deemed licence’. One is lodging an application in accordance with the statutory provision and other is the expiry of the time for consideration of such an application by the authority. The very purpose of fixing an outer limit for consideration of the application is to find out the validity of application and also to consider whether the applicant is entitled for permit or licence. The point that arises for consideration is, when an application is found to be defective within the outer limit stipulated for considering such application, can that application be considered as an ‘application’ as stipulated under S.236(3) of the Act? 12. The Statute prescribes the mode of lodging the application. In the matter of building construction, Rule 7 lays down the procedure and the documents to be accompanied with the application. In the matter of licence for other activities, the Rules also insist that it should accompany such requisites along with the applications; for example, Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules 1996 (D. & O. Rules)). Similarly, the Rules for application for development permit also insists certain formalities. If an application is filed without complying such norms and requirements under law, it cannot be treated as an ‘application’. Similarly, the Rules for application for development permit also insists certain formalities. If an application is filed without complying such norms and requirements under law, it cannot be treated as an ‘application’. The application as referred under S.236(3) of the Act cannot be understood as an application which does not satisfy the legal requirements. The law assumes that the application was in order, if no decision is taken within the time prescribed. This is the first part of the element of legal fiction. Therefore, upon expiry of the time for consideration, if no order is passed on such application and communicated to the applicant, a deemed permit would come into existence. This is the second part of the element of legal fiction. The deeming provision cannot come into effect on the basis of an application which is not, in accordance with the stipulations or satisfying the specifications. When the local authority calls for further details, the applicant will necessarily have to furnish it and in that circumstance the 30 days commence only from the date of furnishing of such details. It is also not an imperative that every communication seeking clarification should have a recital of rejection. If an application is found defective within time and communicated to the applicant within time, the law considers that no application exists for consideration unless the defects are cured. Such fiction would arise again when the applicant resubmits the application. The proposition as above is incontrovertible from the language as well as the object of the provisions. 13. Legal fiction cannot be extended beyond the very purport and purpose of the deeming provision. When the application itself was found defective within 30 days, there is no application as legally understood and therefore, deeming provision would not come to the aid of the applicant. The application as referred in S.236(3) of the Act has to be understood or assumed as an application lodged as per the legal requirement. One cannot interpret the application as referred under S.236(3) of the Act to include defective application as well, so as to enlarge the scope of deeming provision. Therefore, deeming provision would come into operation only in the circumstance when the application was not found defective within the time fixed for consideration and no order was passed and communicated to the applicant within the time fixed for consideration. Therefore, deeming provision would come into operation only in the circumstance when the application was not found defective within the time fixed for consideration and no order was passed and communicated to the applicant within the time fixed for consideration. Therefore, we are of the considered view that the law laid down in Rajesh Ramachandran’s case and approved by the Division Bench in Sudhakaran’s case is not good law. Answering the reference as above, we remit back the matter to the Division Bench.