This is a Constitutional petition by Gulistan Cinema Limited, petitioner Corporation, for a declaration that the order of the District Magistrate, Lahore, respondent No. 1, dated 28-1-1981 (Annexure `C' to the petition), refusing to the petitioner-Company the power to fix and prohibiting it from revising its rates of cinema tickets, be declared to be without lawful authority and of no legal effect.
2. The brief facts of the case are that the petitioner-Company owns and operates a cinema house known as Gulistan Cinema on Abbot Road, Lahore.
3. Prior to 3-9-1979, when the Motion Pictures Ordinance, XLIIII of 1979, was enacted, all cinemas operating in Pakistan including that of the petitioner, were licensed and governed by the provisions of the Cinematograph Act, Il of 1918. Under section 4 of the said Act, the District Magistrate was the licensing authority. Under section 5(3) thereof, the District Magistrate, as the licensing authority, had power to grant licences under the said Act to such persons as it thought fit, and on such terms and conditions and subject to such restrictions as he determined. Under section 5-A(2) no person could sell a ticket for a cinema show at a price higher than that approved by the District Magistrate. Under section 8(1) of the same Act, the Provincial Government could make rules for the purpose of carrying into effect the provisions of the Act and under section 8(2), such rules inter alia could also, in particular and without prejudice to the generality of the power contained in subsection (1), provide for other matters which by that Act was to be prescribed. Under rule 72 of the Punjab Cinematograph Rules, 1976, which were framed under section 8 of the Act, the annual cinema licencees had to be in Form `B' (as annexed to the Rules) and were to be subject to the conditions and restrictions set forth therein and to the provisions of the said Rules ; and in accordance with para. 16 of the Schedule of Conditions attached to the cinema licences under Form "B", cinema licenses, were directed to ensure that cinema tickets were made available to the public in an orderly manner and at the prescribed rates which were to be prominently displayed outside the booking office. The letter regarding the renewal of the last annual licence of the Gulistan Cinema, Lahore, for the period from 7-3-1980 to 6-3-1981, issued by the Punjab Government on 1-4-1980, is that as filed as Annexure 'A' to the petition. The last extsting annual licence in Form "B" with the attached Schedule of Conditions, is as per the document annexed with Annexure `A' to the petition. Under section 5-A(2) of the Cinematograph Act, 1918, the District Magistrate, Lahore, from time to time fixed the prices of the cinema tickets. The rates of cinema tickets as last revised by the District Magistrate, Lahore, and communicated to the petitioner- Corporation on 3-7-1979, are those as pasted on the annual licence in Form B just after the 4th para. Of the Schedule of Conditions. (See the Annexure as attached with Annexure 'A' to the petition).
4. On 3-9-1979, the Motion Pictures Ordinance, 1979, war promulgated repealing the Cinematograph Act, II of 1918, and the Censorship of Films Act, XVUI of 1963. Under section 13(2), the Provincial Government, as the licensing authority, had the power to grant licences under the Ordinance, which power it could delegate, by notification to such other authorities as it desired to specify in the notification. Under section 13(3) of the Ordinance the Provincial Government, as the licensing authority, had power to grant licences under the said Ordinance to such persons as it deemed fit and on such terms and conditions and subject to such restrictions as it determined.
Under section 19(1) of the Ordinance, the Federal Government could make rules for carrying out the purposes of the Ordinance and under section 19(2), such rules inter alfa could also, in particular and without prejudice to the generality of the power contained in subsection (1), provide the terms, conditions and restrictions, if any, under which licences could be granted under Chapter III of the Ordinance and other matters which was to be or could be prescribed. No provision similar to section 5-A of the 1918 Act is provided in the Ordinance.
5. It is the petitioner's case that the present Ordinance does not prohibit them from revising their rates of cinema tickets or requires them to seek the approval of respondent No. 1 or any other authority before making such a revision. The petitioner-Corporation, Consequently by letter dated 12-1-1981 (Annexure 'B' to the petition), informed respondent No. 1 of its intention to increase the rates of cinema tickets, as listed in the said letter. Respondent No. 1, however, by letter dated 2R-1- 1981 (Annexure 'C to the petition), intimated to the petitioner-Corporation, that it could not do so and that the earlier rates, as fixed by him, were valid by virtue of section 21(21 of the Motion Pictures Ordinance, 1979. Being aggrieved by the said action of respondent No. 1, the petitioner preferred a writ petition, which is now before me for disposal.
6. The learned counsel for the petitioner-Corporation, in support of his client's case, has submitted that since no provision similar to section 5-A of the Cinematograph Act, 1918, is present in the Motion Pictures Ordinance, 1979, neither the Provincial Government nor the District Magistrate, Lahore, has power to fix the rates of cinema tickets or prevent cinema owners from fixing or revising the same. The learned counsel further submits that para. 16 of the Schedule of Conditions attached to the annual licence in Form 'B', to the extent that it prescribes cinema licensees from ensuring that cinema tickets will be made available to the public at prescribed rates, is ultra vires of the Motion Pictures Ordinance, 1979, as there is no provision in the said Ordinance like the earlier section 5-A of the old Act giving power to the Provincial Government or the District Magistrate to fix the rates of cinema tickets. Since under the Ordinance there is no power to fix or revise cinema rates, any existing rule, or any licence issued in Form 'B' under any rule, or any condition imposed in or attached to such as annual licence, to the extent to which it prescribes that the Provincial Government or the District Magistrate can fix or revise rates of cinema tickets or calls upon the cinema licensees to sell tickets at rates fixed by the District Magistrate or the Government, would be inconsistent with the provisions of this Ordinance and, therefore, ultra vires of the Ordinance.
Learned counsel also contends that the rates of cinema tickets as last revised by the District Magistrate, Lahore, on 3-7-1979, lapsed with the coming into force of the 1979 Ordinance and could not continue thereafter, in. View of section 21(2) of the Ordinance, as they were inconsistent with the Ordinance.
7. The learned Assistant Advocate-General, Punjab, who strongly opposed the petition, submitted that under section 13(4) of the Ordinance, the licensing authority could grant a licence under Chapter III to such applicants as it deemed fit and on such terms and conditions and subject to such restrictions as it determined. According to the learned counsel for the State, determination of the conditions included the power to fix and revise rates of cinema tickets. Learned counsel, therefore, relying upon rule 72 of the Punjab Cinematograph Rules, 1976, and condition 16 of the Schedule of Conditions attached to Form 'B' of the annual cinema licence, submitted that the said rule and Form were consistent with the provisions of the Ordinaace and were intra vires. The learned Assistant Advocate-General, therefore, submitted that the last revised rates of cinema tickets as fixed by the respondent on 3-7-1974 were valid and binding on the petitioner and could not be revised by it.
8. I have given my anxious consideration to this case. The only question that arises in this case is whether in the absence of any direct section in the Motion Pictures Ordinance, XLIII of 1979, granting the licensing authority the power to fix the rates of cinema tickets, as was available under section 5-A of the previous Cinematograph Act, II of 1918, the impugned order of the District Magistrate, Lahore, dated 3-7-1979 fixing the rates of cinema tickets under the power granted to him under the Cinematograph Act, 1918, still holds the field and is binding on cinema owners after the promulgation of the Motion Pictures Ordinance, 1979. The Cinematograph Act, 1918, when initially enacted, did not contain section 5-A. Under section 4 of the said Act, the licensing authority was the District Magistrate. Under section 5(1), the licensing authority could not grant a licence under the Act unless it was satisfied that the Rules made under the Act had been substantially complied with and that adequate precautions had been taken in the licensed premises to provide for the safety of persons attending exhibitions therein. Under section 5(3), subject to the provisions contained in subsections (1) and (2) and subject to the control of the Provincial Government, the licensing authority could grant licences under the Act to such persons as it thought fit, and on such terms and conditions, and subject to such restrictions, as it determined. Under section 8(1), the Provncial Government could make rules for the purpose of carrying into efteit the provisions of the Act and, under section 8(2), it could make rules, in particular and without prejudice to the generality of the power contained in sub-section (1), to inter alia provide for the regulation of cinematograph exhibitions for securing the public safety and any other matter which by the Act was to be prescribed. Under rule 4 of the Punjab Cinematograph Rules, 1941. Licences whether annual or temporary had to be in Form 'A' annexed to the Rules and were to be subject to the conditions and restrictions set forth therein and to the provisions of the Rules. Condition No. 13 annexed to the Schedule of Conditions attached to the licence issued in Form 'A' provided that "the licensee (would) not admit to any performance any person whose ticket therefor bad been purchased otherwise than from an authorised booking clerk at the licensed place . . . ." By section 4 of the Cinematograph (West Pakistan Amendment) Ordinance, XIX of 1957, section 5-A was added to the Cinematograph Act, 1918. The said section was later continued by virtue of section 4 of the Cinematograph (West Pakistan Amendment) Act, XVI of 1958. By section 5-A(2) no person was authorised to sell a ticket for a cinema show at a price higher than that approved by the District Magistrate and as notified prominently outside the booking office of the class to which the ticket related. In view of the amendment, when the new West Pakistan Cinematograph Rules, 1962 were framed, certain changes were made in the rules to compel licensees to honour the amendment.
Rule 7 of the said Rules provided that licences, whether annual or temporary, would be in Form 'B' and would be subject to the conditions and restrictions set forth therein and to the provisions of the Rules. Condition No. 16 of the Schedule of Conditions attached to the cinema licence issued in Form `B' provided inter alia that the licensee would not admit to any performance any person whose ticket therefor had been purchased otherwise than from an authorised booking clerk at the licensed building,/place and that the licensee would further ensure that cinema tickets were made available to the public in an orderly manner and at the prescribed rates which would be prominently displayed outside the booking office. In 1976 the West Pakistan Cinematograph Rules, 1962, were replaced by the Punjab Cinematograph Rules, 1976, which did not alter the situation for all practical purposes-rule 72 replaced rule 7 and condition No. 16 attached with the licence issued in Form B' replaced the earlier condition. On 3-9-1979 the Motion Pictures Ordinance, XLIII of 1979, was enacted repealing the Cinematograph Act, 1918, and the Censorship of Films Act, 1963. Under.
Section 13(2), the authority having the power to grant licences under the Ordinance was the Provincial Government. Under section 13(3), the licensing authority could not grant a licence under Chapter III unless it was satisfied that the rules made under the said Chapter had been complied with and adequate precautions had been taken in the licensed premises to provide for the safety and health of persons attending exhibitions therein. Under section 13(4), the licensing authority could, subject to the conditions contained in subsections (1), (2) and (3), grant licences to such applicants as it deemed fit and on such terms and conditions and subject to such restrictions as it determined. Under section 19(t), the Federal Government could make rules for carrying out the purposes of the Ordinance and, under section 19(2), it could, in particular and without prejudice to the generality of the powers contained in subjection (1), make rules to provide inter alia the terms, conditions and restrictions, if any, under which licences could be granted under Chapter III and any other matter which was to be or should be prescribed.
9. The statement of objects and reasons which guided the Government to enforce the Cinematograph Act, 1918, runs as follows : "The Bill is designed to ensure proper control of cinematograph exhibitions with particular regard to the safety of those attending them, and to prevent the presentation to the public of improper or objectionable films. The existing law of the country contains certain scattered provisions affecting such exhibitions, and certain local enactments also bear on the subject ; but the rapid growth in the popularity of cinematograph and increasing number of such exhibitions in India have rendered these provisions inadequate for the protection of the public from indecent or otherwise objectionable representations. Further, the special danger from fire which attends cinematograph exhibitions, as has been illustrated by terrible catastrophies due to this cause in other countries, rendered it important to secure, in the interest of safety of spectators a proper regard to the structural conditions of the premises utilised.
The Bill accordingly provides that no exhibition shall be given except in accordance with the conditions of a licence granted by the prescribed authority. The licence is intended to ensure that the intentions of the Act are complied with and that adequate precautions are taken for safety of persons attending the exhibitions which it covers. The Bill also provides for the constitution of an authority which will be required to pass all films intended for exhibition in this country and which will have power to refuse the necessary certificate in the case of any film the production of which in public is open to objection for the reasons already given. The Bill includes the ordinary rule making provisions and enables the Local- Government to exempt any cinematograph exhibition, or class of cinematograph exhibitions, from any provisions of law. Finally it makes provision for the punishment of offences against the Act or the rules made thereunder."
10. The object of the Act as stated in the preamble is to make provisions for regulating exhibitions by means of cinematograph. Section 8(2) also gives the power to the Provincial Government to inter alia frame rules for the regulation of cinematograph exhibition for securing the public safety.
The real intention relating to the grant of licences and the fixation of terms, conditions and restrictions in relation thereto, therefore, appear to be to primarily ensure that licensees provide adequate safeguards with regard to the safety, convenience and welfare of the general public. The idea controlling the profits of the licensees is not intended. "Price control" is a special subject and must not be confused with "theatres, entertainment amusements" which is also an independent subject. According to the principle of laissez faire, a businessman has the freedom to contract and the right to fix his own rate of profits, without interference from the Government. However, if the Government desires to control the same, it must do so by conscious legislation to that effect. Item No. 7 of Part I( of the Concurrent List under Schedule V of the Constitution of Pakistan, 1956, gave a separate distinct power to the Provincial Government to control prices, apart from its power under Item No. 24 of the Provincial List under Schedule V of the Constitution to legislate with regard to matters connected with theatres, entertainments, amusements.1t was not until the Cinematograph (West Pakistan Amendment) Ordinance, XIX of 1957, and the Cinematograph (West Pakistan Amendment) Ordinance XVI of 1958, were enacted conscious pieces of legislation, that power was derived to control the prices of cinema tickets. Without the addition of section 5-A to the Cinematograph Act, 1918, it appears doubtful that the District Magistrate would have been able to fix prices and even with the addition of the said section, it appear doubtful that under section 5(3), the District Magistrate could have fixed the prices of cinema tickets by executive order or instructions under the guise of laying down terms, conditions or restrictions. In any case, section 5- A of the Cinematograph Act, 1918, gave the power to the Distric Magistrate to fix the prices and not any rule framed under the said Act. Neither the West Pakistan Cinematograph Rules, 1962, nor the Punjab Cinematograph Rules, 1976, authorised the District Magistrate to fix the rates of cinema tickets. The last rates, therefore, fixed by the District Magistrate, Lah-are, on 3-7-1979, were those fixed under the power given to him under section 5-A of the Cinematograph Act, 1918, and not under any provision contained in the 1962 or 1976 Rules. The omission of a section, such as section 5-A of the 1918 Act, from the Motion Pictures Ordinance, 1979, clearly shows the conscious intention of the law-giver to denude the licensing authority of all powers to fix or control the prices of cinema tickets. In Pakistan Tobacco Company's case (PLD 1967 5 C 241), where a provision, such as section 96(2)(b)of the Karachi Municipal Act, 1933, was not found enacted in the Municipal Administration Ordinance, 1960,the Supreme Court held that its conscious deletion manifested a clear intention on the part of the law-giver to exclude the terminal tax from the category of taxes leviable by a municipal authority. In these circumstances, it can safely be stated that with the enforcement of the Motion Pictures Ordinance, 1979, the lawgiver did not intend to arm the licensing authority with the power to control the prices of cinema tickets. In that view of the matter, the last order of the District Magistrate, Lahore, dated 30-7-1979, fixing the prices of cinema tickets has no life after the enforcement of the said Ordinance being ultra vires of the Ordinance. The order previously passed under the Cinematograph Act, 1918, to be valid after the enforcement of the 1979 Ordinance, must, under section 21(2) of the Ordinance, not only be not ineonr,i5tent with the provisions of the Ordinance but also one which can be devned to have been passed under the provisions of the Ordinance.If any authority is required for this view, Pakistan Tobacco Company's case may be cited. Since there is is no provision in the 1979 Ordinance empowering the District Magistrate or the Provincial Government to control the Prices of tickets, the earlier order of the District Magistrate -.In the first instance cannot be decried to have been passed under this Ordinance and second, if allowed to remain, would be inconsistent with the provisions of this Ordinance. In these circumstances, the order of the District Magistrate, Lahore, dated 30-7-1979 has no legal validity after the date of promulgation of the Motion Pictures Ordinance, 1979. The respondents, therefore, are not entitled to control the prices of cinema tickets or to restrain the licensees from fixing or revising their rates.
11. In view of the above, this petition is accepted with costs and the order of the District Magistrate, Lahore, dated 28-1-1981 (Annexure `C' to the petition) compelling the petitioner-Corporation to adhere to the prices of cinema tickets as earlier fixed by him and restraining it from revising its rates, is without lawful authority and of no legal effect.