' AJMAL MIAN, J.--By this common judgment, we intend to dispose of the above constitutional petitions as they involve common points of law. The brief facts leading to the filing of the above petitions are as follows:
(i) Constitutional Petition No.D-478 of 1983: The petitioner is the owner of Cinema known as 'Capri Cinema' situated at M.A. Jinnah Road, Karachi within the limits of Karachi Cantonment Board (hereinafter referred to as the Board). The petitioner has impugned the demand of respondents Nos. 2 and 3 to obtain licence from them under the Motion Pictures Ordinance, 1979 Ordinance XLIII of 1979, which came into force on 3-9- 1979 (hereinafter referred to as the Ordinance). It is the case of the petitioner that by virtue of section 24 of the Cantonment Act 11 of 1924 (hereinafter referred to as the Act) and the Cantonments (Urban Immovable Property Tax and Entertainments Duty) Order, 1979 (President's Order No.XIII of 1979) which came into force on 22-8-1979 (hereinafter referred to as the Order), the only competent authority to issue licences is the Board. The petitioner in the memo of the petition have also referred to the previous litigation culminating in the withdrawal by them Special Leave to Appeal No.57 of 1978 upon the promulgation of the Order and have also referred to the opinion given by the Ministry of Law, Government of Pakistan, opining that the Board was competent to issue licence to cinemas in the cantonment area.
(ii) Constitutional Petition No. D-734 of 1983: The petitioner is the owner of a Cinema known as 'Star Cinema' situated at Garden Road, Sadder Karachi, falling within the Municipal Limits. The petitioner has filed the above petition against the Government of Sind and the District Magistrates (East) and (South) for directing them to compel the owners of the Cinemas situated in the cantonment area to obtain cinema licences from them.
The petitioner has not impleaded the owners of the cinemas situated in cantonment area in the above petition. It is the grievance of the petitioner that the owners of the cinemas situated in cantonments limits have been placed in advantageous position than the petitioner and the other owners of the cinemas situated within the K.M.C. limits by not enforcing the provisions of the Ordinance against them as the Board has not fixed the maximum price of the cinema tickets as has been done by the respondents in respect of the cinemas situated within the municipal limits.
With the result that the owners of the cinemas situated within the cantonment area are charging more per ticket than the petitioner and the other owners of the cinemas situated in the K.M.C. limits are allowed to charge.
2. Before referring to the above relevant enactments, it may be pertinent to observe that the question, whether the Provincial Government is competent to issue licences for the cinemas situated within the cantonment limits had been agitated before the Courts as well on the administration side. In this regard, it may be pertinent to refer to the case of Messrs Capri Cinema Karachi v.
Government of Sind and 2 others PLD 1978 Kar. 229 in which the petitioner in the present Constitutional Petition No.D-478 of 1983 had impugned the actions of the Provincial Government and the District Magistrates asking them to obtain the cinema licences. In the above case a Division Bench of this Court held that on account of section 124 of the Act, the petitioner was bound to obtain the licence from the Board and because of the provisions of the Cinematograph Act, 1918 they were also bound to obtain a licence from the District Magistrate. Against the above judgment the aforesaid special leave petition was filed which was withdrawn upon the promulgation of the Order. The matter was also considered by the Chief Martial Law Administrator Secretariat and a directive was issued by the C.M.L.A. Secretariat signed by the then Major-General K.M. Arif for C.O.S. to C.M.L.A. (at page 55 of the Constitutional Petition No. D-734 of 1983.) It may be advantageous to reproduce C.M.L.A's directive, dated 30-11-1977 sub-pars (b) of pare 1 of which deals with the question of levy of recovery of entertainment duty/cinema show tax etc.which reads as follows: "CHIEF MARTIAL LAW ADMINISTRATOR ' Subject: Martial Law Directives Regarding Taxes in Cantonments.
(1) Notwithstanding any thing contained in Laws (Continuance in Force) Order 1977 or in any M.L Order and Regulation or in any other law for the time being in force, C.M.L.A. has been pleased to issue the following directives:-
(a) With immediate effect, the Provincial Government will cease to levy and recover the tax on immovable property situated within the limits of cantonments throughout Pakistan. The local Cantonment Boards will continue to levy and recover the tax on property and land under section 60 of the Cantonment Act, 1924 (II of 1924). The net proceeds from this source shall, however, be shared between the Cantonment Boards and the Provincial Governments concerned in the ratio of 85% and 15% respectively. The recoveries so far made by the Provincial Governments on this account from cantonment areas shall be reimbursed to the respective Cantonment Boards before 30th November, 1977 in the said ratio.
(b) It is further directed that the Provincial Governments should stop the levy and recovery of entertainment duty/cinema show tax etc. from all cinema houses situated within the limits of Cantonments throughout Pakistan and the same shall be levied and recovered directly and independently by the respective Cantonment Boards. The net proceeds from this source shall, however, be shared between the Cantonment Boards and the Provincial Governments concerned in the ratio of 85% and 15% respectively. The recoveries so far made on this account by the respective Provincial Governments shall be reimbursed to the Cantonment Boards concerned before 30th November, 1977 in the said ratio. Amounts lying in deposits or standing securities pledged to the Provincial Governments/Cantonment Boards on this account under the orders of the Civil Courts shall also be released to the respective Cantonment Boards. It is also directed that Cantonment Boards should merge the Cinema Show Tax and entertainment duty/tax into one tax.
The legal formalities for the merger of entertainment tax/duty and Cinema Show Tax shall be completed as quickly as possible. In the meantime, the Cantonment Boards should start recovery of both these taxes/duty at the prevailing rates as levied by the respective Provincial Governments/Cantonment Boards.
(c) The M.L.As. shall examine the ratio in which octroi receipts are being shared between the Cantonment Boards and Municipal Commitees situated within their respective jurisdiction and will take necessary steps to rationalize the same in accordance with the present day conditions. In calculating octroi receipts fines imposed for ovasion shall also be taken into account. They shall also direct the defaulting Municipal Committees to execute necessary agreements with the Cantonment Boards, where they have not done so, and pay the arrears of Cantonment Board's share to them at the existing rates before 30th November, 1977. The Municipal Committees and Cantonment Boards in their respective jurisdiction should also be directed to depose of rights of collection of cotroi duty through public auction, as far as possible.
(2) Compliance report on all those directives will be submitted to C.M.L.A. Secretariat by 30 November 1977."
3. Having dealt with the above factual side, it may be pertinent to observe that the first Act on the subject is the Cinematograph Act, 1918 (Act No. II of 1918) (hereinafter referred to as Act No. II of 1918) of which section 4 empowered the District Magistrate or any other person notified by the Provincial Government to act as the licensing authority. The second enactment relevant to the controversy in issue is the Act i.e. (Cantonments Act, 1924) of which section 124 empowers the Board to issue cinema licences. The third relevant statute is the Order referred to hereinabove and the last being the Ordinance mentioned hereinabove. It may be pertinent to quote hereinbelow section 4 of Act II of 1918, section 124 of the Act, Article 5 of the Order and sections 13 and 21 of the Ordinance, which read as follows: "Section 4 of Act II of 1918: ' The authority having power to grant licences under this Act (hereinafter referred to as the "licensing authority") shall be the District Magistrate: ' Provided that the Provincial Government may, by notification in the official Gazette, constitute for the whole or any part of a Province such other authority as it may specify in the notification to be the licensing authority for the purposes of this Act."
Section 124 of Cantonments Act, 1924: ' Regulation of cinematographic and dramatic performances.--(1) Notwithstanding any thing contained in the Cinematograph Act, 1918, no exhibition of pictures or other optical effects by means of a cinematograph or other like apparatus for the purpose of which inflammable films are used, and no public dramatic performance or pantomime, shall be given in any cantonment elsewhere than in premises for which a licence has been granted by the Board under this section.
(2) If the owner of a cinematograph or other apparatus uses the apparatus or allow it to be used, or if any person takes any part in any public dramatic performance or pantomime, in contravention of the provisions of this section, or if the occupier of any premises allows them to be used in contravention of the provisions of this section, or condition of any licence granted under this section, he shall be punishable with fine which may extend to two hundred rupees, and, in the case of a continuing offence, with an additional fine which may extend to fifty rupees for each day after the first during which the offence continues.
(3) Nothing in this section shall be deemed to prohibit the giving of any exhibition or any dramatic performance or pantomime in any theatre or institute which is the property of the Government where the exhibition, parformance or pantomime is held with the permission and under the control of the military authorities.
' Article 5 of Cantonments (Urban Immovable Property Tax and Entertainments Duty) Licences under Act II of 1918 in cantonments.--The Cantonment Board of a cantonment shall be the authority competent to grant licences under the Cinematograph Act, 1918 (II of 1918), in the cantonment and, in respect of a cantonment, the said Act shall have effect as if the reference therein to "Provincial Government" were a reference to "Federal Government": ' Provided that the rules made under the said Act and in force in a cantonment immediately before the commencement of this Order shall continue to be in force until repealed, modified or amended by the Federal Government.
' Sections 13 and 21 of the Motion Pictures Ordinance, 1979;
13. Licensing of places for exhibition of films.--(1) Save as otherwise provided in this Chapter, no person shall give a public exhibition by means of cinematograph elsewhere than in a place licensed under this Ordinance or otherwise than in compliance with any condition and restriction imposed by such licence.
(2) The authority having power to grant a licence under this Ordinance, hereinafter referred to as the licensing authority, shall be the Provincial Government: ' Provided that the Provincial Government may, by notification in the official Gazette, specify for the whole or any part of the province such other authority as it may specify in the notification to be the licensing authority for the purposes of this Chapter.
(3) The licensing authority shall not grant a licence under this Chapter in respect of any place unless it is satisfied that--
(a) the rules made under this Chapter have been complied with; and
(b) adequate precautions have been taken in respect of the place for which the licence is to be given to provide for the safety and healthy of persons attending exhibition therein.
(4) Subject to the foregoing provisions of this section, the licensing authority may grant a licence under this Chapter to such applicant as it deems fit and on such terms and conditions subject to such restriction as it may determine.
(5) Where the authority specified by the Provincial Government under the proviso to subsection (2) to be the licensing authority consists of more persons than one, no decision of the licensing authority shall be invalid by reason only of the existence of a vacancy in, or defect in the constitution of, the said authority.
21. Repeals and savings.--The Cinematograph Act, 1918 (II of 1918), and the Censorship of Films Act, 1963 (XVIII of 1963), are hereby repealed.
(2) Notwithstanding the repeal of any Act by subsection (1), and without prejudice to the provisions of section 24 of the General Clauses Act, 1897 (X of 1897), every thing done, order passed, action taken or obligation, liability, penalty or punishment incurred under any of the provisions of the said Act, shall, if not inconsistent with the provisions of this Ordinance, continue in force and be deemed to have been done, passed, taken or incurred under the provisions Of this Ordinance.
4. From the above-quoted provisions of the statutes it is evident that till the enforcement of the Order on 22-8-1979 the District Magistrate under above-quoted section 4 of Act II of 1918 and the Board by virtue of section 124 of the Act were issuing licences for cinemas situated within the limits of cantonment in view of the above judgment of a Division Bench of this Court reported in PLD 1978 Kar.
229. However, upon the promulgation of the Order of which Article 2 provided that the Order shall have effect notwithstanding anything contained in the Constitution or any other law for the time being in force, the Board was constituted as the authority competent to grant licences under Act II of 1918 and the references to the Provincial Government in above Act No.II of 1918 were to be read as reference to the Federal Government in terms of above-quoted Article 5 of the Order. The Ordinance was promulgated on 3-9-1979 i.e. hardly less than two weeks after the issuance of the Order whereby under above-quoted section 21, Act II of 1918 and Censorship of Films Act, 1963 (XVIII of 1963) were repealed and under section 13 it has been provided that as otherwise provided in this Chapter no person shall give a public exhibition by means of cinematograph else where than in a place licensed under the Ordinance or otherwise than in compliance with any condition and restriction imposed by such Ecence. It has also been provided that the authority under the Ordinance shall be the Provincial Government or any other authority to be notified by the Provincial Government. There is no controversy between the parties that upon the issuance of the Order, the Board was the competent authority to issue licences in respect of the cinemas situated within the cantonment limits. However, the parties are at issue as to the effect of the enforcement of the Ordinance. According to Mr. Riazul Hassan learned counsel for the petitioner in Constitutional Petition No.D-478 of 1983, Mr. Mansoorul Arifin for respondent No.6 in the said petition and Mr. Abdus Sattar learned counsel for respondent No.4 in Constitutional Petition No.D-734 of 1983, the Ordinance has not altered the position obtaining upon the issuance of the Order and according to them by virtue of section 8 of the General Clauses Act, 1897, reference to Act II of 1981 in the Order has to be read as reference to the Ordinance, whereas according to Mr.A.H.Mirza learned counsel for the petitioner in Constitutional Petition No.D-734 of 1983 and Mr. Abdul Sattar Shaikh, learned Additional Advocate-General appearing for the Provincial Government and the District Magistrates in both the Petitions, the effect of the promulgation of the Ordinance is that only the Provincial authority is now competent to issue the licences in respect of the cinemas irrespective of their location in the cantonment limits and that section 8 of the General Clauses Act is not applicable as there is contrary intention apparent in the Ordinance.
5. The controversy between the parties seems to be within very narrow compass namely, whether section 8 of the General Clauses Act is applicable to the present cases or not. It may be pertinent to reproduce the above section, which reads as follows: Construction of the references to repealed enactments.--(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and m-enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
' A plain reading of the above section indicates that unless different intention appears upon repeals and re-enactments with or without modifications reference to the repealed enactments in any other enactment will be read as reference to the re-enacted enactment. It has been vehemently urged by Messrs Riazul Hassan and Mansoorul Arifin that there is no different intention in the re-enacted Ordinance which has repealed Act II of 1918. On the other hand, it was vehemently contended by Messrs A.H. Mirza and Abdul Sattar Shaikh that different intention is evident from the language of section 13 of the Ordinance.
6. It may be pertinent to refer to some other provisions of the Order which have also direct bearing to the point in issue. It may be observed that in Article 3 it is provided that Urban Immovable Property tax to cease to be leviable in cantonments under the West Pakistan Urban Immovable Property Tax Act, 1958 and that Cantonment Board of a cantonment shall continue to levy and collect in accordance with the provisions of the Act. It also provides that eighty-five per cent.of the net proceeds of the tax referred to in the above Article collected on or after the commencement of this Order shall be paid by the Provincial Government to the Cantonment Board concerned and that fifteen per cent of the net proceeds of the tax collected on or after commencement of the Order shall be paid by the Cantonment Board concerned to the Provincial Government. Whereas Article 4 of the Order provides that the duty leviable under the West Pakistan Entertainments Duty Act, 1958 shall cease to be levied or collected by the Provincial Government on payments made for admission to an exhibition of a cinematograph film within a cantonment and that the aforesaid duty shall be payable to, and be collected by, the Cantonment Board of the cantonment at the rates and in the manner for the time being prevailing in the province. It also provides that eighty- five per cent of the net proceeds of the duty referred to in clause (1) collected on or after the commencement of this Ordinance shall be paid by the Provincial Government to the Cantonment Board concerned. It further provides that the amounts lying in deposit with, and the standing sureties pledged to, the Provincial Government under the orders of a Civil Court, in respect of a cinema house within a cantonment shall be transferred to the Cantonment Board concerned. It also provides that the Cantonment Board of a cantonment shall continue to levy and collect the tax on cinema houses levied and collected by it under the Act, provided the Board shall take early steps to merge the duty referred to in clause (1) of Article 4 and the tax referred into a single tax under the said Act, whereas Article 5 of the order as pointed out hereinabove confers the power on the Board to issue licences under Act II of 1918. It may be pointed out again that Article 2 of the Order provides that the Order shall have effect notwithstanding any thing contained in the Constitution or any other law for the time being in force. It may be pertinent to point out here that their Order has given statutory cover to the above reproduced C.M.L.A's. directive/Order, dated 30- 11-1977, referred to hereinabove in para 2. Furthermore, the above C.M.L.A's order is also protected by para 2 of Article 15 of the P.C.O., the effect of which is that the Board shall continue to be the competent authority to issue cinema licences in cantonments by virtue of the aforesaid C.M.L.A's. order, dated 30-11-1977.
7. Reverting back to the question, whether under the Ordinance contrary intention has been manifested as to exclude the application of section 8 of the General Clauses Act, it may be observed that the object of the Ordinance seems to be to provide one enactment dealing with the topics covered by the Cinematograph Act, 1918 and the Censorship of Films Act, 1963. A perusal of the Ordinance indicates that the Federal Government is the Government concerned for the purposes of most of the sections. However, in section 13 which deals with the question of grant of licence for exhibition of films, it has been provided that under the Ordinance the licensing authority shall be the Provincial Government and that the Provincial Government may by notification in the official Gazette specify for the whole or any part of the Province such other authority as it may specify in the notification to be the licensing authority for the purpose of Chapter III of the Ordinance.
' We are unable to infer any contrary intention either from above section 13 or any other provision of the Ordinance as to exclude the application of section 8 of the General Clauses Act. The Ordinance, as pointed out hereinabove was promulgated after less than two weeks from the issuance of the Order. There seems to be no plausible reason to undo the provisions of the Order within a period of less than two weeks. The object of the Order as is apparent from the various Articles was to empower the Board concerned in the cantonment areas to recover the property tax, entertainments duty and to issue cinema licences. The income from the above recovery is to be shared in proportion mentioned in the relevant Articles with the Provincial Government.
' In our view, section 8 of the General Clauses Act is applicable and the reference in Article 5 of the Order to Act II of 1918 is to be read as reference to the Ordinance.
8. Mr. Abdul Sattar Shaikh, learned Additional Advocate-General then tried to canvass at the bar that an Order is an administrative act, whereas an Ordinance is a legislative Act and, therefore, the provisions of an Ordinance are to prevail upon the provisions of an Order. In support of his above contention, he has referred to the case of Mian Iftikhar-ud-Din and Arif Iftikhar v. Muhammad Sarfaraz and another PLD 1961 (W.P.) Lah. 842, in which one of the learned Judges (A.R. Changez, J.) of a Full Bench while dealing with the above aspect has observed as follows: "The word "Ordinance" has a recognised meaning in legal terminology, namely, the expression of the legislative will of the Executive Head of the Government when the National Assembly is not in session. The word "Order", however does not necessarily refer to the expression of the legislative will of the Executive Head. Resides, Orders can be made by the competent authority irrespective of the fact that the National Assembly is in session or not. In this view of the matter, the distinction is indeed fundamental and cannot be ignored."
'From the above-quoted passage, it cannot be inferred that in no case an Order can be a legislative Act. It may be observed that the Order as well as Ordinance have been issued by the President in pursuance of the proclamation of the 5th day of July, 1977 read with the Laws (Continunace in Force Order, 1977) C.M.L.A. Order No.1 of 1977 and in exercise of all powers enabling him in that behalf, when there were no Assemblies working. In our view, both are pieces of legislation and cannot be distinguished merely on the ground that for D one the term "Order" has been used and for the other the word "Ordinance" has been employed.--An administrative Order could not have contain a provision like Article 2 of the Order already referred to hereinabove more than once, which provides that the Order shall have effect notwithstanding any thing contained in the Constitution or any other law for the time being in force. We are inclined to hold that since the source of legislation is the same, the Order and the Ordinance are at par.
9. Before parting with the above discussions, it may be observed that it was contended by Mr. Abdul Sattar learned counsel for respondent No.4 in Constitutional Petition No.734 of 1983 that the petitioner in the said petition is not an aggrieved party as no demand against it was was raised by the Board for the reason that the petitioner's Cinema is situated within the K.M.C.limits.
' On the other hand Mr. A.H. Mirza has submitted that the petitioner is prejudiced on account of non-enforcement of the provisions of the Ordinance in the cantonment areas as the owners of the cinemas situated in cantonment areas are charging more per ticket as the Board has not fixed on the lower side in respect of the cinema tickets of the cinemas situated within the K.M.C. limits. He has referred tr the case of Munawwar Ali and five others v. Secretary to the Government of Punjab and 2 others PLD 1975 Lah. 544, in which a Division Bench of the Lahore High Court held that in order to constitute a person an aggrieved person within the ambit of Article 199 (1)(a) (i) of the Constitution of Pakistan, 1973, it is not necessary that a person should have in strict juristic sense a particular right but it is sufficient that E he should have a personal interest in the performance of the legs duty which if performed in a manner not permitting by law would result in the loss of some personal benefit or advantage to him he is an aggrieved person.
' We are inclined to hold that it cannot be urged that the petitioner has no locus standi or not an aggrieved person.
10. For the aforesaid reasons the Petition No. D-734 of 1983 is dismissed with no order as to costs, whereas Constitutional Petition No. D-478 of 1983 is allowed with no order as to costs and it is declared that respondent No.2 has no authority to issue performance licences to the petitioner's cinema which is situated within the cantonment area. Respondents Nos. 1, 2 and 3 are also refrained from demanding the petitioner to obtain annual performance licence etc.