Dalbir Malik vs Gnctd & Ors. on 1 October, 2011

Delhi High Court
Dalbir Malik vs Gnctd & Ors. on 1 October, 2011
Author: Rajiv Sahai Endlaw
            *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 dangerous

W.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

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