1. SARMAD JALAL OSMANY, J.--- This petition impugns the order, dated 9-7-1998 passed by respondent No,1 whereby the petitioners' request for enhancement of the rates of admission proposed to be charged for public display of the motion picture "Titanic" was refused.
2. The brief facts of the matter are that the petitioner No,1, which is in the business of motion picture distribution, imported the "Titanic" after entering into a Sub-Distribution Agreement with Paramount Communications on the terms and conditions mentioned in said Agreement between the parties which is dated 19-7-1998 and has been filed as Annexure "C" to the petition. As the petitioner No,1 had undergone considerable expense in acquiring the Titanic, it being the most expensive motion picture in history (per clauses 3.5 and 3.6 of the Agreement), the petitioner No,1 sought the permission of respondents Nos.1 and 2 in accordance with provisions of section 13(4) of the Motion Pictures Ordinance, 1979 to increase the rates of admission as per its letters addressed to respondents Nos. 1 and 2 both, dated 30-6-1998, which have been filed as Annexures "D" and "D/1" to the petition. A further ground given for such increase was the fact that due to the extraordinary running time of the Titanic only two shows a day could be held on weekdays.
3. Whereas respondent No,1 refused such permission vide the impugned order, respondent No,2 failed to reply and hence the petition with the prayer that the impugned order may be struck down and the respondents be directed to approve the enhanced admission rates for the Titanic as per Annexure "D' to the petition.
4. A number of grounds have been taken in the petition inter alia that the impugned action of the respondent No,1 does not give any reasons whatsoever and is otherwise harsh and oppressive besides being' in clear violation of the principles of natural justice; the enhanced rates would result in enhanced revenues to the exchequer by way of entertainment duty etc. and that it would be in the interest of the public welfare as it would enable the petitioners to import other good quality films for public entertainment through the money earned by the Titanic.
5. Paradise comments have been filed in reply to the petition by both respondents. Respondent No,1 has taken the preliminary objection that as only the licensees were authorized under the law to approach the Authorities for enhancement in the rates of admission, therefore, the petition was not maintainable to the extent that petitioner No,1 was not a licensee. So also as regards petitioners Nos.2 and 3, although they are licensees as contemplated under the law, since they had never approached the respondent No,1 regarding increase in the admission rates, to that extent the petition was premature. It is further contended by respondent No,1 that the request for enhancement was validly rejected as the same would result in great hardship for the common man in the street as it was only this class of society, which patronized cinema halls for their entertainment, whereas well to do persons preferred to stay at home and watch television and video cassette films for this purpose. As regards the issue of increased revenues to the Government through corresponding enhancement in the admission rates, it has been maintained that the Government did not want to earn revenue at the expense of the poorer section of Society, which would also result in unjust enrichment for the petitioners. However, during the course of arguments learned counsel for respondent No,1 did not press these objections to the petition and agreed to abide by any reasonable enhancement in the admission rates allowed by this Court.
6. Respondent No,2 in his paradise comments has reiterated the preliminary objections of respondent No,1 as to petitioner No,1 's right to file the petition. It is also submitted by him that under the law it is only the Cantonment Board, which is entitled to grant a licence to operate Cinema Halls within the Cantonment limits and not himself. As regards the merits of the. Case, it is averred that the Cantonment Board has maintained a uniform policy pertaining to the rates of admission to Cinemas situated within its jurisdiction which has been filed as Annexure "R/1". Accordingly, the petitioner No, 1 's request for enhanced rate was regretted as per reply, dated 17-8-1998 as it (petitioner No,1) was not a licencee of the Board.
7. We have heard learned counsel for the parties and our views are as follows with regard to respondent No,2's contention since learned counsel for respondent No,1 gave his consent to any reasonable enhancement in the admission rates allowed by this Court.
8. The preliminary objection raised by the respondent No,2 as to the petitioners right to file the petition is two-fold i,e, (a) that the petitioner No,1 not being the licencee of respondent No,2 (it only being the distributor) could not in any event seek any enhancement in the admission rates as only the licencee could do so in terms of section 13(4) of the Motion Pictures Ordinance, 1979 read with Rule 24 of the Cantonment Cinematographic Rules, 1985; secondly (b) as the licencee (in this case petitioner No,2) had never approached the respondent No,2 for enhancement in its rates, the petition is premature as an alternative remedy is available under the above-mentioned Rules. As regards the first objection akin by the respondent No,2, we are of the view that admittedly, petitioner No, 2 is a licensee of said respondent. consequently, the petition cannot be dismissed on the sole ground that the petitioner No,1 is not such a licensee. With regard to the second preliminary objection, we are of the view that as mentioned by respondent No,2 in his paradise comments that the Board followed a uniform policy of admission rates (Annexure "RR" to said comments), any request for enhancement by petitioner No,2 could hardly have succeeded.
9. Consequently, for reasons, which follow on the merits of the case we cannot agree with learned counsel for respondent No, 2 that the petition deserves dismissal based upon this preliminary objection raised by him.
10. Coming to the merits of the case it would be seen that as regards respondent No 2, Rule 24 of the Rules empowers the Cantonment Board to fix the rates of admission in conclusion with the Pakistan Film Exhibitor's Association from time to time . A copy of the Inter-Office memo. filed as Annexures "R 1" to respondent No.1's comments indicate that the last enhancement in admission rates was allowed on 08-10-1996 upon application for this purpose filed by the management of Nishat Prince and princess Cinemas, which are situated within the Cantonment limits. It would, thus, be seen that Rule 24 gives the Cantonment Board the ultimate power to fix rates of admission to Cinemas albeit that this exercise is to be carried out in consultation with the Association. It is settled law that the discretion and powers vested with the State Functionaries is not unfettered and is to be exercised judiciously and not arbitrarily or whimsically and should be based on sound principles of justice, equity, fairness and in accordance with the spirit of the provisions in which such powers are given. As much has been laid down by the superior Courts of this country in the following cases:--
(a) Amanullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092,
(b) Muhammad Iqbal Khokhar v. The Province of Punjab PLD 1991 SC 35,
(c) Shaukat Ali v. Government of Pakistan PLD 1997 SC 542 and
(d) Dadabhoy Investment (Pvt.) Ltd. v. Federation of Pakistan PLD 1995 Kar. 33.
11. In the sent case it would be seen that respondent No,2 initially failed to respond to petitioner No, 1 's letter, dated 30-6-1998 requesting for enhancement in rates and it was only after the petition was filed on 1-8-1998 that a perfunctory reply was given on 17-8-1998 denying such request on the ground that as petitioner No,1 was not a licencee of respondent No,2, the former had no formal/legal capacity to make the same. To say the least, such denial based on a mere technicality was certainly not premised on any sound principle of justice, equity and fairness and in our opinion a capricious exercise of power vested with the Cantonment Board particularly in view of the fact that a very valuable fundamental right was involved as guaranteed by Article 18 of the Constitution i,e, the right to conduct any lawful trade or business subject of course to the regulation of the same by a licensing system. It would further be seen that Rule 24 of the Rules enjoins upon the Cantonment Board to fix the admission rates in consultation with the Pakistan Film Exhibitors'
12. Association. A perusal of Annexure "R/1" to the comments filed by respondent No,2, which is an inter-office note authored by said respondent and is dated 8-10-1996 whereby the admission rates were increased does not display any prior consultation with the Association. When we asked learned counsel for respondent No,2 whether in fact such consultation had taken place he displayed his ignorance.
13. In the result, we are of the opinion that in the circumstances of the case, given the extraordinary length of the Titanic and its expense, it would be in the interest of justice to enhance the admission rates thereof as follows:-- Grand Circle From Rs,50 to Rs,100 Dress Circle From Rs,40 to Rs,75 Circle From Rs,25 to Rs,35 The rates for Stalls shall remain the same at Rs,10.
14. These are the reasons for our short order passed on 25-9-1998. It is, however, clarified that these orders shall not be either cited or made the basis for a uniform increase in the rates of admission to Cinema Houses in the country as they have been passed in the peculiar circumstances of the case.