*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 1st October, 2011
+ W.P.(C) 7295/2011
DALBIR MALIK ..... Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Adv. with
Mr. Abhay Kumar, Adv.
Versus
GNCTD & ORS. ..... Respondents
Through: Mr. Najmi Waziri & Ms. Zeenat
Masoodi, Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition has been filed impugning the oral order dated
28.09.2011 of the respondent No.2 SHO, Sultanpuri Police Station
prohibiting the petitioner from running the Maruti Car Circus (Kuan)
joyride in Ramlila & Dussehra Mela event at Indra Park, Jalebi Chowk,
W.P.(C)7295/2011 Page 1 of 14
Sultanpuri, New Delhi. Contending that the said oral order had been
issued by the respondent No.2 SHO at the instance of the respondent No.3
Deputy Commissioner of Police (DCP), Outer District, Pitampura, Delhi,
and the respondent no.4 Consumer of Police, Delhi, they have also been
impleaded as parties. Interim relief of restraining the respondents from
prohibiting the petitioner from running the said joyride has been claimed.
2. The petition came up before this Court first yesterday when it was
found that the Municipal Corporation of Delhi (MCD) (not impleaded as
party in this petition) had in response to the enquiry made reported to the
Additional Commissioner of Police (ACP) (Licencing) on 27.09.2011that
on inspection, the joyrides including the aforesaid Maruti Car Circus
(Kuan) at the location aforesaid had been found to be satisfactory and in
good working condition and further found that the ACP (Licencing) had on
28.09.2011 granted licence under the Regulation for Licensing &
Controlling Places of Amusement (other than Cinemas) and Performance
for Public Amusement, 1980, for the joyrides as per the Fitness Certificate
issued by the MCD. The counsel for the respondents appearing yesterday
W.P.(C)7295/2011 Page 2 of 14
had stated that a policy decision had been taken to not allow the said
joyride also known as Maut Ka Kuan (MKK) at any place in Delhi.
However since no decision / order in this regard was placed before this
Court and finding that the licence granted to the petitioner was till
07.10.2011 only, interim order restraining the respondents from interfering
in the petitioner setting up and operating the said joyride in accordance
with the licence / permission given was granted leaving it open to the
respondents to take proceedings in accordance with law for revocation of
the licence / permission already given. Further, considering the safety /
security aspects, the matter was posted for today.
3. The counsel for the respondents has today informed that an order
has been issued by the ACP (Licencing) to the petitioner as well as to the
others who had also been given licence for the same joyride, as under:
“It has been found that in the above mentioned Performance
License issued to you for holding Ramlila & Dussehra Mela,
you have taken the permission for the Joy Ride namely Maruti
Car Circus, which has been reported during / after installation
to be in fact a Joy ride, traditionally called as „Maut Ka
Kuan‟, which is not permitted as it is deemed to be dangerousW.P.(C)7295/2011 Page 3 of 14
to the visitors as well as the rider himself. There are chances
of the vehicles falling inside the well resulting in explosion
which is dangerous to the life of spectators as well as the
rider. The Motor Cycle / Car (engines) used in such
performances are modified which make a lot of Noise
pollution under which it is difficult to hear any other sound
and may cause inconvenience, annoyance to the visitors.
Therefore, on these grounds it has been decided not to permit
the Ride Maut Ka Kuan which may be called Maruti Car
Circus or by any other name and your Licence No.194/11
issued vide No.1951-60/Addl.CP/Lic. (Amst.) dated
28.09.2011, as per “The Regulation for Licensing and
Controlling of Public Amusement (other than Cinemas) and
Performances for Public Amusement, 1980″ is accordingly
modified to such extent.”
4. The counsel for the respondents has also placed before this Court the
affidavit furnished by the petitioner while applying for the licence and in
which the petitioner had agreed to abide by all the instructions of the
Licencing Authority as may be given from time to time in public interest.
He has further invited attention to Regulation 224 of the aforesaid
Regulations of the year 1980 whereunder the respondents notwithstanding
having issued the licence are in their absolute discretion at any time
empowered to cancel or suspend a licence and to direct the licencee to
close the premises. An order dated 29.09.2011 of the ACP (Licencing)
W.P.(C)7295/2011 Page 4 of 14
revoking the said licence given to the petitioner is also placed on record.
He has also shown the application made by the petitioner for the licence
and has contended that the petitioner therein did not seek permission for
the aforesaid joyride.
5. Though during the arguments, the provisions of the Delhi Municipal
Corporation Act, 1957 i.e. Sections 417 & 422 empowering the MCD to
grant licences were also discussed but no licence if any granted by the
MCD is before this Court. The letter dated 27.09.2011 of the MCD to the
ACP (Licencing) appears to be in response to the report sought by the ACP
(Licencing) from the MCD. Thus need is not felt to discuss the provisions
of the DMC Act.
6. The senior counsel for the petitioner has however cited Sections 28
and 120 of the Delhi Police Act, 1978. He has contended that Section 120
dealing with “Dangerous Performances” is dealing with only such
performance in which or during which a person buries himself under
ground or seals himself in any room or receptacle or other than in such
W.P.(C)7295/2011 Page 5 of 14
manner as to prevent all access of air to him. It is contended that subject
joyride is thus not treated as dangerous under the Delhi Police Act. With
reference to Section 28 providing for making of regulations for regulating
traffic and for preservation of order in public places etc., it is contended
that event such as the subject joyride can be said to be falling in none of
the Clauses of the said provision except Clause (o) providing for licencing,
controlling any risk, danger or damage. The argument is that what under
Section 120 of the Act is not dangerous cannot be dangerous under Section
28 (o) of the Act and cannot be regulated.
7. The senior counsel for the petitioner has further contended that in
the application submitted by the petitioner to the respondents for licence,
one of the items mentioned is “Circus” and which can be nothing else
except the Maruti Car Circus (Kuan) which is expressly mentioned in the
letter aforesaid of the MCD. It is pointed out that the licence issued to the
petitioner is with reference to the joyrides inspected and found satisfactory
by the MCD in its letter dated 27.09.2011 and thus the respondents cannot
urge that the licence was not sought for or issued for the subject joyride.
W.P.(C)7295/2011 Page 6 of 14
8. The senior counsel for the petitioner has further contended that
though there can be no judicial review of the perception of danger but
contends that in the present case there is absolutely no basis therefor. He
contends that there is no change between 28.09.2011 and today for the
respondents to have changed their perception about the danger from the
subject joyride; that when MCD has inspected the site and accorded its
satisfaction qua all safety parameters, without any subsequent event, no
change could have been effected. It is further contended that the reasons
given in the order of revocation are erroneous; the joyride Maut Ka Kuan
is far different from Maruti Car Circus (Kuan); in Maut Ka Kuan a person
rubs petrol on his body and enters into a ball of fire with water underneath,
while the subject joyride is the driving of Maruti car by skilled driver on
the walls of an artificial well; that there can be no danger to the spectators
from the said event inasmuch as the vehicle even if falls, falls in the well
and the danger is only to the driver thereof. It is also contended that there
is no more noise in driving of the said car then in driving of any other
vehicle on the roads; that the order proceeds on the erroneous premise that
the vehicles are modified to make more noise; nothing of the sort is done.
W.P.(C)7295/2011 Page 7 of 14
It is contended that when the country is on the verge of hosting its first
Formula 1 Race, for the fear of a freak accident, the petitioner should not
be deprived of his business; that on the basis of the licence granted by the
respondents not only this year but in the previous years as well, the
petitioner has made investments, called the skilled artists from out of
station and made payments to them. It is contended that the order ought
not to be made effective immediately and the petitioner should be allowed
to operate the subject joyride at least in this season.
9. The counsel for the respondents has contended that the permissions
for the subject joyride were not granted in the last two years also though
admits that were being granted earlier.
10. As far as the argument of the senior counsel for the petitioner of
there being no reason for revocation is concerned, the predicament of the
Police can be appreciated. They unfortunately face the public ire in either
eventuality. If they are to wait for a calamity to happen, they are blamed
for having allowed it in the first place. Now that they are taking preventive
W.P.(C)7295/2011 Page 8 of 14
steps on their own perception of danger, they are being blamed for
prohibiting without any loss to danger or life of any person. Long back
Sardar Patel had said “the police have inherited a legacy of suspicion and
dislike” – the predicament of police was also noticed by this Court in
Baldev Band v. UOI 1985 Cr.L.J 787.
11. The joyride in the present case is inherently / per se dangerous. In
the said joyride a vehicle instead of plying on horizontal surface for plying
whereon it is manufactured, is made to ply on in a near vertical wall for
plying whereon it is not manufactured and meant. The same is possible
only with the highest degree of skills and owing to the scientific principle
of centrifugal force. A smallest error or negligence be it on the part of the
driver or be it on the part of those erecting the said temporary well or in
tightening the nuts and bolts thereof can have disastrous consequences.
We are a country of masses. For any small accident on a road a large
number of people gather to witness. The possibility of a stampede in the
event of any accident even if in the well cannot be ruled out. The
photographs shown during the course of hearing show PVC sheets being
W.P.(C)7295/2011 Page 9 of 14
used for creating a well. PVC is inherently inflammable material. The
possibility of outbreak of a fire even in the event of the vehicle falling
inside the well resulting in explosion can also not be ruled out. I am thus
of the opinion that even if the respondents have misconstrued the subject
joyride as a Maut Ka Kuan, the subject joyride nevertheless remains an
inherently dangerous one.
12. Once a conclusion is reached that the subject joyride is inherently
dangerous, in my view merely because the respondents had earlier granted
the licence and merely because no accident has happened in the
interregnum would not be a reason for interfering with the change of hearts
of the respondents. Sufficient reasons have been stated for such change of
decision. Undoubtedly in the application made to the resondents there was
no mention of Maruti Car Circus (Kuan). What was mentioned was only
circus which could very well be understood as acrobatic exercises. Though
MCD in its report mentioned Maruti Car Circus (Kuan) but in the
circumstances the possibility of a misunderstanding cannot be ruled out
and this Court would not come in the way of correction of mistake
W.P.(C)7295/2011 Page 10 of 14
committed by the respondents in understanding and the petitioner cannot
have any benefit of such mistake. We are living in tumulous times. The
burden on the authorities especially the Police to ensure the safety, security
and peace is at the optimum.
13. I do not find any merit in the agreement that except for what is
mentioned in Section 120 DPA, nothing else can be dangerous. The need
for licence from the respondents is evident and in compliance therewith
only the petitioner approached the respondent for licence. The matter is
squarely covered by Regulations aforesaid. The satisfaction report of MCD
does not help the petitioner in as much as MCD was not granting any
permission or licence and merely reporting to the police and the
application of mind and decision was to be of the ACP licencing only.
14. Though it is often said that Executive Authorities do not have the
power of reviewing their decision but in the matters such as this, in my
view no such limitation can be placed. There is no bar to the Licencing
Authority to change its own mind / opinion and in admitting an earlier
W.P.(C)7295/2011 Page 11 of 14
action to be erroneous. That precisely appears to be the purport of the
Regulation aforesaid empowering the Licencing Authority to revoke a
licence earlier given.
15. Though the senior counsel for the petitioner has not expressly
argued the aspect of revocation being in non compliance of the principles
of natural justice but in my view, if the procedure as issuance of a show
cause notice and hearing to be granted were to be followed, it would make
the power of revocation redundant. The said power of revocation has to be
seen contextually. The licence in the present case is for a few days only
and an event which is dangeours cannot be permitted to run / operate
pending a hearing.
16. Though the senior counsel for the petitioner had also vaguely
suggested that the order is in violation of the fundamental right of the
petitioner to carry on business but the business sought to be carried on in
the present case is as aforesaid an inherently dangerous business and the
law is amply clear that there is no right to carryon such dangerous
W.P.(C)7295/2011 Page 12 of 14
activities and the State is empowered to control / recall the same.
17. As far as the argument of the counsel for the petitioner of the
petitioner owing to the licence earlier granted having incurred expenses is
concerned, the same though cannot entitle the petitioner to challenge the
said order but may certainly entitle the petitioner to make a claim for
damages.
18. Thus while dismissing the writ petition, it is clarified that the
petitioner shall have liberty to make claim for damages against the
respondents.
19. Though the revocation order has been issued to all those who had
earlier been granted licences but still it is deemed expedient to while
dismissing the petition direct the respondents to ensure that the order is
strictly complied with without discrimination. During the course of
hearing a newspaper of today with pictures of the said joyride operating at
some other venue were shown. It thus appears that while the petitioner
was prohibited and made to dismantle the well, at some other venue
W.P.(C)7295/2011 Page 13 of 14
joyride was permitted. Such discrimination can lead to avoidable
heartburn.
20. The petition therefore fails and is dismissed with directions
aforesaid to the Police and liberty aforesaid to the petitioner.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
OCTOBER 01, 2011
„gsr‟..
W.P.(C)7295/2011 Page 14 of 14
