Dharmender Kumar vs The Deputy Commissioner Of Police ...
2011 Latest Caselaw 4502 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 14th September, 2011.

+             W.P.(C) 5321/2011 & CM No.10804/2011 (for stay)

%      DHARMENDER KUMAR                                      ..... Petitioner
                  Through:              Dr. Rakesh Gosain, Adv.

                                 Versus

    THE DEPUTY COMMISSIONER OF POLICE (LICENSING)
    AND ANR                                  ..... Respondents
                 Through: Mr. Najmi Waziri, Standing Counsel
                           with Ms. Neha Kapoor, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may              Not necessary
       be allowed to see the judgment?

2.     To be referred to the reporter or not?             Not necessary

3.     Whether the judgment should be reported            Not necessary
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner is aggrieved from the condition imposed for issuance of

temporary license for sale of fire crackers at the time of the festivals of

Dassehra and Diwali, of the shop with respect to which temporary license is

sought, not to have residence above. It is the case of the petitioner that he

has been issued such temporary license with respect to Shop No.1401-A,

Bazar Gullian, Jama Masjid, Delhi for the last 35 years and cannot now be

denied the temporary license.

2. Notice of the petition was issued on the plea of the petitioner that

though such a condition was imposed for issuance of temporary license,

permanent licenses had been issued with respect to shops with residences

above.

3. The counsel for the respondents has invited attention to Rule 83 of the

Explosives Rules, 2008 which prohibits the storage in shops of explosives

other than inter alia fireworks and requires the shop to be not situated under

the upper floor used for the purpose of dwelling. It is further the contention

of the counsel for the respondents that the respondents have been insisting

upon such condition with respect to temporary as well as permanent

licenses. With respect to the instances cited by the petitioner, it is stated that

on enquiry some of the licenses issued by the Controller of Explosives have

been found to be in contravention of the said condition and the Controller of

Explosives has been informed of the same and is likely to take action.

4. The counsel for the petitioner has not been able to controvert the

applicability of the Rule 83 (supra). He has however invited attention to Set

XI in Schedule V, part 4 to the Rules prescribing the terms and conditions

for issuance of a temporary license. It is his contention that the said terms

and conditions do not contain any such condition as prescribed in Rule 83.

He is however unable to contend that the conditions as prescribed in Set XI

alone govern the grant of temporary license. There is nothing to show that

Rule 83 (supra) would not be applicable to temporary license.

5. Moreover, the said condition appears to the in the interest of safety

and security and has to be interpreted accordingly.

6. As far as the argument of certain others having been wrongfully

issued the licenses is concerned, as long as the condition impugned in this

petition is found to be legal, merely because it has been violated qua others,

would not entitle the petitioner also to a license in contravention of the

Rules. The Supreme Court recently in UOI Vs. M.K. Sarkar (2010) 2 SCC

59 has reiterated that there can be no claim on the basis of negative equality.

7. The counsel for the petitioner has also contended that prior to the

framing of the Rules aforesaid, this Court in order dated 30 th September,

2005 in W.P.(C) No.16910/2004 titled Dharmender Kumar Vs. DCP

(Licensing) had rejected the argument of a license being not issuable with

respect to a shop for the reason of residences above. He contends that the

Rules subsequently framed, could not be in violation of the said judicial

verdict.

8. The Rules of 2008 were not before this Court on 30 th September,

2005. I am unable to decipher any legal principles that Rules in

contravention of a verdict cannot be framed.

9. Though the counsel for the respondents has stated that action with

respect to the others is being taken but if notwithstanding the same, the

petitioner desires action to be taken with respect to others issued license

wrongful, the petitioner would be at liberty to file a PIL in that respect.

10. There is thus no merit in the petitioner; the same is dismissed; the

interim order stand vacated.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 14, 2011 bs