' MUHAMMAD ZAHOORUL HAQ, J.-- The petitioners who claim to be the residents of Kunri Town, Tharparkar District, have challenged the grant of No-Objection Certificate in respect of an open air cinema 2. The relevant facts are that on 9-1-1980, respondent No.2, who made by the District Magistrate, Tharparkar, in favour of respondents 2 and 3. was a minor, applied for establishing an open air cinema in Kunri Town. The petitioner having come to know of the same made representation to the President of-Pakistan against opening of a neW cinema on 14-1-1980 and endorsed a copy thereof to the District Magistrate, Tharparkar. The petitioners also sent representation to the Mukhtiarkar Kunri to the same effect, on 5-2-1980. On 7- 6-1981, the respondent No. 3, who is the father of respondent No.2 applied to the District Magistrate, Tharparkar, for grant of N.O.C. in his name in his capacity as the guardian of respondent No.2, who was a minor. On 14-6-1981, respondent No.1, the District Magistrate, Tharparkar, granted, N.O.C. under rule 5 (4) of the Cinematograph Rules, 1962, to respondent No.3 Shaukat All Khan which was valid for one year. It was clearly specified in the N.O.C. that it was being granted to Shaukat Ali Khan who was guardian of minor Javed Khan.
3. In January 1982 new rules were framed by the said Government for the grant of licence and N.O.C. for cinemas in Sind.
4. It is an admitted position that the open air cinema was not constructed during the period of one year. On 7-6-1982, the respondent No.3 applied, to respondent No.1 for extension of the N.O.C. On 11- 7-1982, the respondent No.1 refused to extend time for the N.O.C. and he assigned reasons for this order. On 13-7-1982, the respondent No. 3 applied for review to the respondent No.
1. On 29-7-1982, review was allowed by respondent No.1 but no reasons were assigned for this review. The N.O.C. was extended for one year.
5. The petitioners having felt aggrieved against the grant/extension of the N.O.C. filed Petition No.19183 on 5-3-1983 in the High Court and the same was dismissed in limine on 16-1-1984 on the ground that the petition had become infructuous because the N.O.C. granted for one year on 29-7- 1982 had lost its effectiveness on the date of the order. On 7-3-1984 the respondent No.1 started proceeding under rule 11 of Sind Cinematograph Rules, 1982. The petitioners had made an application to the District Magistrate on 24-1-1984 for giving them the hearing in respect of cinema but the same does not appear to have taken notice of and, therefore, the petitioners have filed the present petition.
6. Mr. Muhammad Ismail H. Memon, the learned counsel for the petitioners, has attacked the grant, of N.O.C. and its extension on the following grounds:-
(1) That the N.O.C. could not be granted to a minor;
(2) that the N.O.C. could not be extended after its expiry on 13-6-1982;
(3) that the respondent No.1, having dismissed the application for extension on 13-7-1982, had become functus officio in the matter and there being no provision for review in the Act or Rules he could not review his order refusing to extend the N.O.C., on 29-7-1982;
(4) that it was incumbent upon respondent No.1 to take into consideration the objections but he had failed to do so;
(5) that even if the application for review was to be retreated as a fresh application then the procedure prescribed under the new Rules of 1982 should have been followed.
7. Syed Masood Ali, the learned counsel for respondent No.1, had taken position that first N.O.C. granted on 14-6-1981 had been issued in favour of a minor, therefore, it was a nullity and hence all proceedings thereafter in pursuance of the said N.O.C. were also a nullity.
8. Mr. Aftab Ahmed Shaikh, the learned counsel for respondents Nos.2 and 3, submitted that there was no bar under the Rules of 1962 to the grant of N.O.C. to a minor but the bar was only in respect of grant of licence which could not be granted to a minor. He wanted to draw distinction between 1962 Rules and 1982 Rules and submitted that 1982 Rules had barred even the grant of N.O.C. to a minor while 1962 Rules did not bar the grant of annual licence. He, therefore, submitted that the N.O.C. granted to a minor or to the guardian of a minor under 1962 Rules could not be challenged and since extension granted on 29-7-1982 was of the N.O.C. issued in 1981, therefore, the same could also not be challenged.
9. Mr. Aftab Ahmed Shaikh strenuously argued that the earlier petition filed by the petitioners had raised all the grounds which have been raised in the present petition and since the same was dismissed in limine, therefore, the dismissal of the said petition in limine should be taken as res judicata and the present petition should be barred under the provisions of section 11 of C.P.C. as the dismissal in limine should be treated as a decision on all the contentions raised by the petitioners in that petition.
10. Mr. Aftab Ahmed Shaikh, further contended that the original Rules of 1962 provided for N.O.C. for two years, therefore, the N.O.C. granted in 1981 for one year should be treated to be the N.O.C. for a period of two years. The next contention of Mr. Shaikh was that the cinema having been constructed the petition should be dismissed.
11. We have given our serious thought to the contentions raised by the learned counsel and we have perused the documents produced by them and after hearing them we had allowed this petition by a short oral order on 11-9-1984. The following are the reasons for the same.
12. Before dealing with the matter on merits we will first examine the point of res judicata. It is a common ground that the present petition and the Petition No. 19/83 contained common grounds.
The said petition was disposed of on 16-1-1984 by a learned Single Judge of this Court and a perusal of the order shows that the Hon'ble Judge who dismissed the said petition considered that the N.O.C. granted in 1982 had become ineffective on 12-6-1983 and, therefore, it shall be deemed to be non-existent and, therefore, no relief could be granted to set aside an order which was already inoperative and ineffective and hence the petition was ,dismissed as infructuous. It is, therefore, apparent that the previous petition was dismissed on technical ground and the merits and the contention of the petitioners had not been considered. The counsel for the petitioners has drawn our attention to a number of cases in this respect. In PLD 1964 Kar. 337 (340) it was held that an award which was not given on merits was not binding upon the parties. It was further observed that in order to support a plea of res judicata the former decision must have been on the merits on the question in issue in the subsequent litigation. In PLD 1966 Kar. 597 (601) it was held by a Division Bench relying upon AIR 1961 SC 1457, that if a writ petition was dismissed in limine and an order is pronounced, then if the order considers the questions raised in the petition it would be an order on merits, but if on the other hand, the order does not consider all the aspects of the case and disposes of the matter on some technical ground it cannot be said to be an order on merit so as to attract the principle of res judicata. The Karachi Bench has clearly observed in that case that the order passed in limine cannot be said to be an order so as to operate as res judicata.
13. The petitioners' counsel also drew our attention to PLD 1980 SC 139(144) where it was observed as under:- "On the point of res judicata it cannot be ignored that the first writ petition was not decided on merits. It has been rightly held by the learned Judge in the High Court that the dismissal thereof for non-prosecution did not for this reason alone bar a fresh writ petition."
' The 'learned counsel for the petitioners also relied upon PLD 1978 Lah. 901 (905). The relevant observations are as under:- "When a writ petition is dismissed as infructuous it is only a fact noted. No finding is recorded. No adjudication takes place. No determination of the dispute is attempted. No decision is given. If any observation is made with regard to the merits of the controversy or the rights of the parties to all their misgiving or to provide a guideline to the statutory functionary its obiter dicta, which in plain words, means "A judicial opinion not bearing on the elements of a case and, therefore, not binding."
14. In the light of the above observations we have no doubt in our mind left that the dismissal of the previous petition of the petitioners was only on a technical point and the merits of their case had not been considered, therefore, the present petition is not barred.
15. The relevant Rules in respect of the present petition are Rules 3 to 8 of West Pakistan Cinematograph Rules, 1962 as amended by Gazette of West Pakistan dated 17-12-1965. Rule 3 provides that no person under 18 years of age _shall be entitled to obtain or hold any licence under these Rules. Rule 5 provides that any person who intends to obtain an annual licence shall apply to the District Magistrate for grant of N.O.C. alongwith a plan of the proposed site indicating the surrounding roads and buildings including any school, hospital and mosque within a distance of 200 yards. However, for renewal of an annual licence N.O.C. is not necessary. Sub-rule (2) of rule 5 provides that the District Magistrate shall take into consideration any objection and under para. 6 of this sub-rule. It is provided that he may at his discretion grant a No-Objection Certificate or to refuse to grant the same. The other relevant provision of this rule is sub-rule (4) which originally provided for the grant of N.O.C. in Form-A which was to be valid for two years from the date of issue. But the amendment of the Rules in 1965 provided under sub-rule (5) that no N.O.C. in Form-A shall be valid for a period of more than one year from the date of issue.
16. A bare reading of the rules 3 and 5 makes it clear that a minor of less than 18 years cannot be granted any licence for running a cinema and rule 5 further makes it clear that it is only the person, who intends to obtain a licence for running a cinema, can alone make an application to the District Magistrate for the grant of N.O.C. It is therefore, obvious that a person who cannot apply for a licence under the rules could not apply for a N.O.C. under the said rule, and therefore, application by a minor either for N.O.C. or for a licence is absolutely incompetent and a nullity in law. When we read the application of Javed Iqbal Khan dated 9-1-1980 and the application of Shaukat Ali Khan dated 7-6-1981 it becomes clear that Javed Iqbal Khan was a minor and Shaukat Ali Khan hid stepped in on behalf of the said minor as his guardian. The position is completely made clear by the N.O.C. granted by respondent No.1 on 14-6-1981 which has been issued in the name of Shaukat Ali Khan as guardian of applicant Javed lqbal Khan son of Shaukat Ali Khan. It is, therefore, clear to us that the application made by Javed Igbal Khan or his guardian Shaukat Ali Khan was hit by the provisions of rule 3 and similarly the N.O.C. was invalid on that account. In this respect the distinction that Mr. Aftab Ahmed Shaikh wanted to draw between the grant of N.O.C. and licence is of no consequence because if rules 3 and 5 of 1962 Rules are read together they make it clear that a person under 18 years of age cannot hold a licence for running a cinema and N.O.C. can only be applied for by that person alone who intends to obtain an annual licence. Therefore, if a person is not competent to obtain an annual licence then he is similarly incompetent to obtain the N.O.C.
17. It is common ground that the 1982 Rules made by the Sind Government on 11-1-1982 called Sind Cinematograph Rules, 1982 make it clear in rule 3(3) that N.O.C. shall not be granted to any person below the age of 18 years we are, therefore; of the view N.O.C. granted to respondent No.3 on behalf of respondent No.2 by respondent No.1 on 14-6-1981 was completely without lawful authority, as it was granted in favour of a minor.
18. We may also at this stage note that the said N.O.C. nowhere showed that the objections of the petitioners had been taken into consideration by the respondent No.1 at all and, therefore, also the N.O.C. was granted in breach of sub-rule (2) of rule 5 of the rules. It is correct that respondent No.1, had the discretion, to refuse or grant a N.O.C. but since the rules themselves provide for consideration of any objection, therefore, it was incumbent upon respondent No.1 to give his thought to the objections and then decide whether he would still grant the N.O.C. in spite of the objections/ That having not been done, the objection of the petitioners remained unconsidered and unattended to and N.O.C. was granted in clear breach of the rules.
19. Mr. Aftab Ahmed Shaikh wanted to submit that the respondent No.1 had taken into consideration the report of the Mukhtiarkar, but the rules provide that it is the. respondent No.1 who was to consider the objections and, therefore, the respondent No.1 could not have acted on the report of the Mukhtiarkar in a mechanical manner and had to apply his own mind to that aspect of the cake but he has failed to do so.
20. In respect of the submission that the extension granted on 13-7-1982 was incompetent because it had once Leen refused on 11-7-1982 and the respondent No.1 had no power to review, it is enough to note that neither the Rules of 1962 nor the Rules of 1982 nor the Sind Cinematograph Act and nor the Motion Pictures Ordinance, 1979, gives the District Magistrate viz., respondent No.1 any right of review. We note here that lack of power of reviewing has been conceded on all hands by the learned counsel for the respondents. It is an established proposition of law that there is no power or right to review an order by an officer unless the power of review is specifically given to him. Tn PLD 1970 SC 1, it was held that the review is a substantive right and is always the creation of statute. The similar view has been taken by the Supreme Court again in PLD 1981 SC 94. This being the position in law it is manifest that the application made by respondent No.2 on 13-7-1982 for reviewing the order of refusal dated 11-7-1982 was not in accordance with law and was incompetent.
Consequently, the order of review by respondent No.1 dated 29-7-1982 was also incompetent and without jurisdiction and hence it did not confer any right upon respondents Nos. 2 and 3. Moreover, since this order had extended the N.O.C. granted on 14-6-1981 in favour of a minor, therefore, the extension of the said N.O.C. was again hit by the provisions of rules 3 and 5 of 1962 rules.
21. Even if the application made by respondent No.3 for extension of the N.O.C. granted on 14-6-1981 was to be considered as a new application for granting N.O.C. the same had to be granted after following the procedure as provided in rule 3 of 1982 Rules which bars an application by a person below the age of 18 years and it can be granted after considering the matter prescribed in sub-rule
(4) of that rule and only after notice has been published inviting objections under rule 4 and after considering the objections and suggestions. It is an admitted position that while granting the extension on 29-7-1982 the procedure prescribed in rules 3 and 4 of 1982 Rules has not been followed and, therefore, on this basis also the extension of the N.O.C. was completely illegal.
22. In respect of the extension granted on 29-7-1982 we may also note that, at the time that the application for extension of N.O.C. was made, the 1982 Rules had come into force and sub-rule (3) of rule 4 of the said rules provided that the N.O.C. could be extended by the licensing authority on valid grounds for a further period not exceeding one year. It is, therefore, obvious that before the extension could be granted on 29-7-1982 the grounds for the same had to be mentioned and those grounds were required to be valid. But the order of 29-7-n82 does not give a single reason, what to say of valid reason, as to why extension was being granted. In fact the said order even does not show as to why review of an order was being made which was passed on 11-7-1982. If we compare the order of refusal dated 11-7-1982 with the order passed in review bn 29-7-1982 we find, that the order of 11-7-1982 is a reasoned order which takes into consideration the failure of the respondents Nos.2 and 3 to make the foundation of the cinema in a period of one year which indicated that they had no intention to start the work and the finding-of the respondent No. 1 was that there was no necessity to extend the period of N.O.C. But the order of 29-7-1982 has not taken into consideration any one of those grounds of refusal of extension and has merely extended validity of the N.O.C. granted on 14-6-1981. It is, therefore, clear that the extension of 29-7-1982 was not made on valid grounds and was completely arbitrary and in absolute disregard of the rules framed in 1982. In fact it could be pointed out here that the Rules of 1962 read with Form-A of the Schedule of the said rules had made it quite clear that no extension of the N.O.C. was possible and in Case the N.O.C., was allowed to expire then a fresh N.O.C. could alone be asked for and not the extension of the same.
23. In the light of the above discussion we are clearly of the view that the grant of N.O.C. on 14-6- 1981 or its extension on 29-7-1982 were completely without lawful authority and it, therefore, follows that action initiated by respondent No.1 on 7-3-1984 under rule 11 of the Sind Cinematograph Rules 1982 having been based on invalid N.O.C. and its extension, the same was also without lawful authority.
24. The factum that the cinema has been constructed cannot have the effect of washing away the nullity of the N.O.C. In any case, it is only open air cinema which does not have much of the structure which is involved in a closed cinema. Moreover, we are simply declaring the action which has been so far taken as a nullity and the same does not bar a competent person to make an application afresh to the respondent No.1 if the same can be substantiated in law. This petition was, therefore, allowed on 17-10-1984.