1. HAMOODUR RAHMAN, C. J.-This appeal by special leave is directed against the judgment of a Division Bench of the High Court of West Pakistan, Lahore Seat, dismissing a petition under Article 98 of the Constitution of 1962.
2. The said petition was filed to challenge the validity of a "No-Objection Certificate" granted by the Provincial Government on the 17th May 1968, to the respondent No. 4 herein for the construction of a Cinema House on Khasra Nos. 878 and 879 of the Pakki Thathi Area of Lahore.
3. The appellants who are residents of the locality, sought to challenge the validity of the Certificate on the following grounds :-
(i) That the said respondent No. 4 had deliberately omitted to show, on the site plan submitted by him, two mosques and a school which were situated within a radius of 200 yards of the site on which the Cinema was proposed to be constructed, in deliberate contravention of rule 5 of the West Pakistan Cinematograph Rules, 1962 ;
(ii) that apart from the two mosques and school there were some more mosques and a girls' school in the vicinity of the site ; (i.e) that the construction of the Cinema will be a continuous source of nuisance to the residents of the locality ;
(iv) that the authorities concerned had recommended and/or granted the "No-Objection Certificate" without inviting objections or, hearing the objections of the residents of the locality ;
(v) that the authorities had acted in excess of or in abuse of their statutory powers ;
(vi) that the "No-Objection Certificate" had been issued in the colorable exercise of powers for certain political and other considerations ; and
(vii) that the construction of the Cinema on the said site was in contravention of the Highway Laws.
4. The High Court, after examining the provisions of rule 5, framed under section 8 of the Cinematograph Act, 1918 and the instructions issued by the Secretary, Information Department, Government of West Pakistan, to all Commissioners and District Magistrates, came to the following conclusion :- "No doubt instructions were issued by the Government to Commissioners, District Magistrates and other competent officials to refuse the certificate where the construction is intended within the area of 200 yards of schools, hospitals and mosques, and' it is most unfortunate that the Government deviated from its own policy in the grant of `No-Objection Certificate' in the instant case and overlooked the sanctity attached to the mosques, but we are afraid, we cannot declare the order as one without lawful authority merely for the violation of the instructions, more especially when the Govern--ment is clothed with authority to grant the `No-Objection Certificate' in its discretion under rule 5 of the West Pakistan Cinematograph Rules."
5. Again with regard to the contention that the District Magistrate had not heard the objections of the local residents the High Court observed that it is "true (that) the District Magistrate has to, consider any local objections while making his recommendation to the Commissioner under clause (2) of rule 5 of the Rules, in his report he has submitted that he only followed, the recommendations of the Committee appointed for the inspection of the site. It is unfortunate that the report of the Committee kept the District Magistrate in dark regarding the real position of the site and the local objections for the grant of the `No-Objection Certificate.' The District Magistrate has, therefore, been hoodwinked. If the District Magistrate had been alert in the performance of his duties, `he should have himself heard the objections and taken into consideration their grievances".
6. Nevertheless the High Court took the view that since the District Magistrate had acted in the present case; under the instructions of the Government, which was the competent authority in Lahore to issue the certificate, the objections could not prevail, as the Provincial Government had discretion to allow the construction even in such an area. The petition was, accordingly, dismissed.
7. Unfortunately in spite of its own finding that the applicant for the certificate had not furnished correct information and that the District Magistrate, whose duty it was to consider the objections of the residents of the locality, had not performed this duty the High Court failed to consider as to what would be the validity of an order made in such circumstances. Even assuming that the Government had a discretion in the matter could it be said that the discretion had been properly exercised? Could it be said that the Government had applied its mind to the correct state of facts and then decided to grant the certificate in the exercise of its discretion? The discretion, if any, was exercised on the assumption that the proposed construction did not violate any of the conditions prescribed by the Rules and that no resident of the locality had raised any objection to such a construction.
8. Leave was granted in this case to consider as to whether the High Court was right in taking the view that, the Government could act in breach of the Rules framed by itself. While granting leave this Court also called for the production of the Government file relating to this case as it was alleged that after the filing of the writ petition by the present appellants the District Magistrate had himself inspected the site on the 9th December 1968, and reported to Government that the plan submitted by the respon--dent No. 4 was incorrect as a school and three mosques were actually situated within the radius of 200 yards of the site. On the basis of this report the Government at first suspended the Certificate but for reasons best known to it subsequently again restored the same.
9. The file which has now been produced discloses that the local residents, on finding that the construction of a cinema house had already started at the site, raised an agitation and filed a number of objections. It was due to this agitation that the District Magistrate was asked to report in the matter. He personally inspected the site and found that there were three mosques and a Corporation Free Primary School for boys situated within 600 feet of the site. On this report the then Minister for Information ordered on the 15th November 1968, `that the case should be referred to the Council of Ministers and in the meantime the construction should bb stopped. It would thus appear that the Government itself did not take the same view as the High Court, for, indeed it would have been a curious position for the Government to adopt if it were to assert that even though it had been duped or misled into granting the certificate it would still maintain its order.
10. The owner of the site then started making representations to Government and ultimately to the Governor of the Province himself. The Governor called for a report and in this report it was pointed out that not only a writ petition was pending in the High Court but also a civil suit had since been filed to challenge the validity of the "No-Objection Certificate" by some other persons. It was also pointed out that the legality of the order stopping the construction needed to be examined, for, the granting of a "No-Objection Certificate" was not by itself a guarantee for the working of the Cinema House. The licence would still have to be granted by the Licensing Authority on different considerations. In these circumstances it was suggested that there were two courses open to Government, namely : (i) to vacate the stay order and let the matter be decided by the Courts which had already been approached by interested persons; or (ii) to take the case for discussion again to the Council of Ministers keeping in view the legal aspect of the matter and pending reconsideration by the Council of Ministers the status quo may be maintained.
11. The Minister recommended the adoption of the second course and the Governor approved of the same, but as no meeting of the Council of Ministers could be held for a long time, the Minister on the 1st of March 1969, suggested that since the major part of the cinema building had by then been constructed, it would be in the fitness of things to follow the first course suggested in the Secretary's note, namely ; to vacate the stay order and let the matter be thrashed out by the concerned parties in the Court of law where the Government decision had been challenged. The Governor agreed with this and it was thereafter that the stay order was recalled.
12. A perusal of these notes on the Government file would thus indicate that neither the District Magistrate nor the Government had as yet considered or taken any decision upon the objections filed by the local residents, but had merely withdrawn the order stopping the construction and decided to await the decision of the Courts in the pending litigations. It seems to us that the Government has by adopting this course shirked its own responsi--bility, for, no Court can be in a position to decide as to whether the certificate should be granted or not granted. This is an executive decision which must be made by the Executive itself. All that the Courts are concerned in seeing is that the executive has acted in accordance with the procedure laid down by the statute itself or the rules framed to give effect to tire provisions of the statute, after giving all interested parties a reasonable opportunity of placing their respective points of view before the officer or authority charged with the duty of making the decision. Policy matters cannot be decided by Courts and it would be unfair to ask Courts to decide them. The jurisdiction of the High Court under Article 98 of the Constitution is not that of an appellate authority. It cannot substitute its own decision for the decision of the executive authorities concerned. All that it is entitled to see is that the authority has acted in accordance with law and exercised its discretion, if it is a matter within its discretion, upon sound principles fairly and reasonably and not perversely or whimsically or arbitrarily.
13. Rule 5 clearly lays down the procedure that is to be followed for the grant of a "No-Objection Certificate". An application for this purpose has to be made along with a fee of Rs. 100 and a plan of the proposed site drawn to scale clearly indicating therein the surrounding roads and buildings, including any schools, hospitals and mosques situated within a distance of 200 yards of the proposed site. Then the District Magistrate, before making any recommendation to the Commissioner of the Division, has to take into consideration any local objections that may have been made. This clearly envisages that he has to invite objections or to publicize the proposal for the erection of the cinema and fix a date for the filing of the objections. After this has been done and the objections heard, he has then to make a report to the Commissioner and it is the Commissioner who, except in the cases of Karachi, Lahore, Peshawar and Rawalpindi, grants permission for the issuance of the "No-Objection Certificate." In the case of Karachi, Lahore, Peshawar and Rawalpindi, the Commissioner in his turn has to make a recom--mendation to the Provincial Government with regard to the grant of the "No-Objection Certificate." If the Provincial Government refuses to grant the certificate, the applicant may apply for revision of the order within 30 days of the communica--tion of the same to him, but the Government's decision on this revision is final.
14. It seems that the stage at which the matter is now pending with the Government is that an enquiry has been made by the District Magistrate in respect of the allegations made in the objections filed before him and his report is now pending con--sideration with the Government. The Government has not yet given any decision. It is proper, therefore, that the matter should, as suggested by the learned Advocate-General, be returned to Government to make its final decision at an early date.
15. We, therefore, do not propose to make any order on this appeal save to point out that the writ petition was premature, and should have been dismissed as such. The Government will now dispose of the objections raised by the local residents and take a final decision with regard to the "No-Objection Certificate", for, even if a "No-Objection Certificate" has been granted it is still within the competence of the Government to withdraw that Certificate. This appeal is, accordingly, disposed of in these terms and the parties are left to bear their own respective costs.