' The petitioner is proprietor of Charda Sooraj Touring Cinema, Shahkot District Sheikhupura. Ch. Shah Muhammad is the Proprietor of Majestic Touring Cinema, Shahkot District Sheikhupura. Both these cinemas are touring cinemas. The licensing of these cinemas is regulated by the Cinematograph Act, 1918, and the West Pakistan Cinematograph Rules, 1962. The Act provides in section 3 that- ' Save as otherwise provided in this Act, no person shall give an exhibition by means of a cinematorgaph elsewhere than in a place licensed under this Act, or otherwise than in compliance with any conditions and restrictions imposed by such licence."
' Clearly therefore no cinema can run without a proper licence, Section 4 deals with "Licensing authority" and provides that the licensing authority having power to grant licences under the Act shall be the District Magistrate. It however leaves it within the scope of the powers of the Provincial Government to constitute for the whole or any part of a Province any other authority specified in the notification to be the licensing authority for the purpose of the Act. Section 5 provides that the licensing authority shall not grant a licence under this Act, unless it is satisfied that the rules made under the Act have been substantially complied with and adequate precautions have been taken in the place in respect of which the licence is to be given to provide for the safety of persons attending exhibitions therein. In subsection (2) provision is made for inserting of other conditions to which it is not necessary to make any reference. Then comes subsection (3) which provides that- "Subject to the foregoing provisions of this section, and to the control of the Provincial Government, the licensing authority may grant licences under this Act to such persons as it thinks fit, and on such terms and conditions, and subject to such restrictions as it may determine."
' The next important provision is the provision of section 8 which authorises the Provincial Government to make rules for the purpose of carrying into effect the provisions of the Act.
According to subsection (4) all rules made under the Act shall be published in the official Gazette, and, on such publication, shall have effect as if enacted in this Act.
2. The West Pakistan Cinematograph Rules, 1962, were framed under this provision. These rules made a distinction between what may be called static cinemas and touring cinemas. The period of licence for static cinema is fixed as one year renewable from time to time. There is also a provision in rule 10 for the grant of temporary licences for such cinemas only in certain contingencies which are provided in that rule and such temporary permit is issued in Form 'C'. Rule 6 as it stood before the amendment to which reference will be made at the proper time provided for licences to touring cinemas. These licences were contemplated to be temporary licences. The rule read as follows :- "(1) An annual licence shall only be granted in accordance with the provisions of the rule in Part III and in respect of a building permanently equipped for cinematograph exhibitions. It shall be valid, for one year from the date of issue and shall be renewable on application being made by the licensee.
(2) A temporary licence may be granted by the District Magistrate in respect of any town, village or rural area for exhibition by means of a touring cinematograph subject to the following conditions :-
(a) A temporary licence under this sub-rule shall be granted subject to the provisions contained in Part IV.
(b) No temporary licence shall be granted in respect of -
(1) a rural area or a village where one or more permanent cinemas are functioning ; (ii)a town or municipality which according to the latest official census, has population of 20,000 people or more ; and
(iii) a town or municipality and within one mile of its outer limits where one or more permanent cinemas are functioning ;
(c) No temporary licence shall be granted to any person for any one village, town or rural area for a period exceeding ninety days in a calendar year and no licences for touring cinematographs shall be granted in respect of any one village, town or rural area for a period exceeding one hundred and eighty days during one calendar year.
(3) The Commissioner may of his own motion or on the application of any person aggrieved at any time review any order of the District Magistrate passed under sub-rule (2) and the orders passed by the Commissioner shall be final."
' It will be clear from sub-rule (2) as it stood before the amendment that temporary licensing was subject to the conditions that such licence could not be issued for a rural area or a village where one or more permanent cinemas are functioning, in a town or municipality which has a population of 20,000 people or more and within one mile of its outer limits where one or more permanent cinemas are functioning. There are also limitations placed upon the power of the lisensing authority in regard to the period of licence. It was provided that no temporary licence shall be granted for any one village, town or rural area for a period exceeding ninety days in a calendar year. It also provides that if more than one licence is required to be granted then the total period for which such licences in such area can be granted should not exceed one hundred eighty days.
Sub-rule (3) makes a provision for review of the order of the District Magistrate issuing or refusing to issue licence by the Commissioner and the order of the Commissioner has been given a finality.
' By Memo. No, S.
0. (P&C)-VIII-3-73 dated the 3rd August, 1974, the Government framed a rule that after exhausting the period for licence issued by the District Magistrate, the Commissioner can grant extension in the period of temporary licence for 30 days and the Govern ment will extend it further in genuine cases for a period not exceeding 60 days in each individual case. This letter is reproduced in extenso as follows :- "From ' The Chief Secretary to Government of the Punjab, S. G. A. And Information Department.
' To
1. All Commissioners of Division in the Punjab.
2. All the Deputy Commissioners in the Punjab.
Memo No, S 0 (P&C)-VIII-3/73, Dated Lahore, the 3rd August, 1974. Subject: Exhibition by means of a touring Cinematograph ' Rule 6(2) of the West Pakistan Cinematograph Rules, 1962, as it stands now, empowers the District Magistrate to issue a temporary licence to any one person in respect of any village, town or city for exhibition by means of a touring cinematograph for a period not exceeding 90 days in a calendar year. The District Magistrate can issue temporary licences to more than one person in respect of any one village, town or city for periods which taken together make aggregate period not exceeding 180 days in a year. The Commissioner of the Division and the Government are competent to relax the prescribed period of 90/130 days and can grant temporary licence/licences for period/periods exceeding the limit as specified in the said rule.
2. A number of applications are being received by the Government for the grant of temporary licences for exhibition by means of extension in the period of temporary licences previously issued by the District Magistrates. In order to regulate the issue according to a set policy and to avoid not too uniform a disposal of applications received by the Commissioners of Divisions or the Government, it has been decided that the District Magistrates may continue to grant temporary licence/licences as provided under rule 6(2) of the West Pakistan Cinematograph Rules, 1962. The Commissioner of the Division may, at his discretion, grant extension in the period of temporary licence for 30 days and the Government will extend it further in genuine cases for a period not exceeding 60 days in each individual case.
3. As regards touring talkies area of operation, it has been decided that they may be allowed to operate only one touring cinema in a town or municipality if there is no static cinema already functioning within the municipal limits. No temporary licence may be granted in respect of a town or municipality and within one mile of its outer limits where one or more permanent cinemas are functioning.
(Akhtar Sultan), Section Officer (P & C), for Chief Secretary.
4. By Memo No, S.
0. (P&C)-VIII-2/76 dated the 23rd June, 1976, the Government in reply to a memorandum received from the District Magistrate, Sheikhupura, clarified this further that the rule does not provide that Government will grant permission for the issuance of a licence only after the District Magistrate has exercised his authority in this behalf in a particular case. This appears to be a clear departure from the letter referred to above, since according to that letter the jurisdiction to grant licence was first to be exercised by the District Magistrate. This letter goes on to say that the extension in period provided by the Government is only an administrative arrangement to regulate the issue according to a set policy. It is further admitted there that these instructions were not issued in exercise of any statutory power. The letter is reproduced for further reference as follows :- "GOVERNMENT OF THE PUNJAB SERVICE, & GENERAL ADMN: & INFOMATION DEPTT.
(IC&T WING)
' To ' The District Magistrate, Sheikhupura, ' No, S.
0. (P&C)-VIII-2/76, dated Lahore, the 23rd June, 1976.
' Subject : Grant of Permission to operate Majestic Touring Cinema at Shahkot Tehsil and District Shelkhupura.
' Reference your memoranda No, HC/2532, dated 1-3.76 and No, HC/ G/449I, dated 17-5-76, on the subject noted above.
2. Government is competent to grant permission for the issuance of a licence/licences for touring cinematograph for the period/periods exceeding the limit as specified in rule 6(2) of the West Pakistan Cinematograph Rules, 1962. The rule does not provide that Government will grant permission for the issuance of a licence only after the District Magistrate has exercised his authority in this behalf in a particular case.
3. The instructions issued by Government specifying the period for which Government will extend the term of a licence issued by the District Magistrate, is only an administrative arrangement to regulate the issue according to a set policy. These instructions do not impinge upon the authority of Government to grant permission for the issuance of a licence for touring cinematograph as provided under the Rules. If permission has been granted by Government straightway for the issuance of a licence in violation of the instructions, this violation does not invalidate the permission granted by Government, inasmuch as such instructions were not issued in exercise of any statutory powers.
(Sd.) Akhtar Sultan, Section Officer (P&C) for Secretary to Government of the Punjab."
5. After hearing the learned counsel for the petitioner as well as the learned Asstt. Advocate- General who was called by me at the motion stage about the powers of the Government to issue such instructions and Mr. M. R. Chughtai, Advocate, who appears for Shah Muhammad, Proprietor of Majestic Cinema, as well as respondent No,
4. I agree with this departmental interpretation that the instructions referred to above are not in pursuance of any statutory provision. Rule 6(2) did not confer any right either upon the Commissioner or upon the Government to extend the period of 90 days for one licence or 180 days as the cummulative period for all licences in a calendar year. It provides for certain review by the Commissioner but this review power can be exercised within the ambit of the jurisdiction of the District Magistrate and does not allow the Commissioner to pass any order contrary to the rules. Sub-rule (2) however, has undergone a change and has been substituted by the following rule which has been published in the official Gazette :- "(2) Subject to the provisions contained in Part IV of these Rules, a temporary licence may be granted by the District Magistrate in respect of any village, town or city for exhibition by means of a touring cinematograph subject to the following conditions-
(a) no temporary licence shall be granted in respect of a town or municipality where one or more permanent cinemas are functioning ; and
(b) save with the sanction of the Commissioner of the Division, and unless Government otherwise directs, no temporary licence shall be granted to any one person for any one village, town or city for a period exceeding ninety days in a calendar year and no licences for touring cinematographs shall be granted in respect of any one village, town or city for periods which taken together make an aggregate period exceeding one hundred and eighty days during a year."
' The learned Assistant AdvocateGeneral pointed out that the rule as published omits some words in the original rule sent for publication. It is not necessary to refer to those words since the purport of the rule as sent is also the same that if licences are granted for one village then the total period for which they are issued by the District Magistrate shall not exceed 180 days.
6. The Government by another policy letter (Memo No, SO (P&C)- VIII-3173, dated the 7th July, 1976, has now taken over the powers to allow extention for touring cinematograph unto 120 days instead of 60 days in each individual case on merits.
7. The facts of this case to which the Rules had to be applied are that originally an application was made by the Majestic Cinema to the Government for permission to run cinema in the calendar year 1976 for a period of 60 days. This permission was granted and the District Magistrate was directed to issue licence to the above cinema. This memorandum is dated the 24th January, 1976.
It appears that the Deputy Commissioner first resisted compliance with this letter with the result that Shah Muhammad filed Writ Petition No, 1328 of 1976 which has been dismissed by me today as having borne fruit. A report was called from the District Magistrate. Ultimately cn the 8th July, 1976, the ADC (G) who appeared in person was allowed a fortnight to formulate his final view in the matter and to act upon it. The District Magistrate thereafter gave a temporary licence as dirceted by the Government to the Majestic Cinema, for a period of 60 days from 13-7-76 to 10-9-76.
8. The petitioner had been given a licence originally for a period of 90 days by the Deputy Commissioner and he had run his touring cinema from 2-1-1976 to 2-4-1976. He thereafter, operated this cinema on a further extension granted by the Commissioner for 30 days from 18-5- 76 to 16-6-76. For further extension of 60 days he submitted an application to the Government which was allowed by Order Annexure 'C' which is dated the 26th August, 1976. The order is as follows : - "From ' The Secretary, Government of the Punjab, SGA and Information Department, (Information, Culture & Tourism Wing).
' To ' The District Magistrate, Sheikhupura. Memo. No, S.
0. (P&C)-V111-2/76-11 dated Lahore, the 26th August, 1976.
' Subject t Grant of permission to operate Charda Suraj Touring Cinema, Shahkot, District Sheikhupura.
' Reference correspondence resting with this Department's endorsement of even number dated the 13th August, 1976, on the subject noted above.
2. The Proprietor of Charda Suraj Touring Cinema, Shahkot, District Sheikhupura may be allowed to operate his touring cinema for a period of 60 days in case the Majestic Touring Cinema have not applied for extension after 10-9-76.
(Sd.) Akhtar Sultan, Section Officer (P&C) for Secretary to Government of the Punjab."
8. The petitioner is aggrieved against the imposition of the condition that the extension will be operative if the Magestic Cinema has not applied for extension. It is clear from the record that the Majestic Cinema has applied for extension. Consequently the grant in favour of the petitioner has become unavailable. This gave him a cause of action to file this petition.
9. On going through the Rules, I do not feel satisfied that the Government had any power to give the extension. I, therefore, called upon Mr. Tanvir Ahmad Khan, learned Assistant Advocate-General to address me in this case. Mr. Rashid Chughtai thereafter appeared on behalf of respondents Nos. 3 and 4 and he has also been heard. The petitioner was given a hearing on the initial point also since if the decision was against there being any jurisdiction in the Government to grant the extension, that would affect the maintainability of the writ petition itself.
10. All the learned counsel relied upon the amended sub-rule (2) of rule 6. It was not contended that the original sub-rule (2) of that rule gave the Government any such power of granting extension or conferred upon the Commissioner such power to grant such extension for the period fixed in the memo., dated the 3rd August, 1974. The argument is based oa the amended sub-rule
(2) of rule 6. The relevant clause in this sub-rule is clause (b). This sub clause provides that-
(1) no temporary licence shall be granted to any one person for any one village, town or city for a period exceeding ninety days in a calendar year ; and
(ii) no licences for touring cinematographs shall be granted in respect of any one village, town or city for periods which taken together make an aggregate exceeding one hundred and eighty days during a year.
' This power of the District Magistrate has been made subject to the condition which is evident from the following words :- "Save with the sanction of the Commissioner of the Division, and unless Government otherwise directs."
' The use of the word "and" shows that the two conditions are to exist simultaneously and if there is no Government direction then the Commissioner has full authority to extend the period over 90 or 180 days, as the case may be, for which the District Magistrate is authorised to grant licence. The words "unless Government otherwise directs" if seen in this context, will only mean that the Commissioner has power to grant a period exceeding 90 days or 180 days but he cannot give this sanction if the Government directs that the period in this sub-rule shall be adhered to. In such case the Commissioner would have no jurisdiction to give sanction for an additional period. Similarly, if the Government directs that the period of extension cannot exceed e. g. 30 days in a case where one licence only is issued or for a period of 60 days where various licences are issued and thus raise the period from 90 days or 180 days as the case may be to 120 days in one case and 240 days in another case, the Government can say that instead of 30 days or 60 days the period of additional grant can be fixed at 15 days or 30 days only, as the case may be. It does not, however, mean that the Government itself has the power to grant any extension or to issue any instruction that after the power of the Commissioner is exhausted, it can direct the District Magistrate to make a grant for a further additional period. The power of issuing licence/licences for 90/180 days in a calendar year is that of the District Magistrate. The Government independently does not have any jurisdiction to pass any order of grant of licence or to extend the period of licence. It can curtail or limit only the period of extension to be given by the Commissioner.
11. Faced with this situation, the learned Assistant Advocate-General and the two learned counsel shifted their emphasis to section 5 of the Act, in which, as stated above, it is provided in subsection
(3) that the licensing authority may grant licences subject to the provisions of subsections (1) and
(2) of section 5 and "to the control of the Provincial Government". The argument is that since the Government has the jurisdiction to control, it has jurisdiction to impose its own order of choosing a licensee as well as to grant an extension in the period of licences. In this respect, the learned Assistant Advocate-General relied upon the dictionary meaning of the word "control" in Webster's Dictionary where the word is defined as meaning "restrain, regulate, dominate". Mr. M. R. Chughtai added to this argument that the "control" also means mandate or direct a thing to be done in a particular manner. The learned Assistant Advocate-General argued that the word "regulate" gives the power to the Government to pass orders of extension or to fix a period of extension or to impose its will in the matter of choice of the applicant upon the licensing authority. M M. R. Chughtai went a step further and argued that the meaning "issuance of mandate or direction" gives the power to the Government to pass any order it likes inter alia to the District Magistrate in all such matters. The learned Assistant Advocate-General also relied upon Inayat Ullah v. M. A. Khan (1) where it was held that though the word "control" in the West Pakistan Waqf Properties Ordinance could not be read as meaning "checking or restricting" but it does mean "regulating". This case arose out of the demand by the petitioners that they were entitled to hold Khatam Sharif Ghausia Alia in the Mosque Patolian of Lahore which was taken over under the above Ordinance by the Chief Administrator, Auqaf who had been given the power to control. The Chief Administrator exhausted it. The matter went to the Supreme Court of Pakistan where it was held that the word "control" could not be used in such sense as restraining the petitioners thereof from holding the ceremonies of Khatam Sharif. It was further held that those persons were entitled to hold the ceremonies and it was not open to the Chief Settlement Commissioner to ban the ceremonies which had the sanction of past practice. It is clear that the word "control" was not given an extended or wide meaning as is being canvassed at the Bar by the learned counsel for both the parties as well as the learned Assistant Advocate- General.
12. The Act and the Rules, as seen above, have made provisions in regard to the licensing authority i. e. The person who can issue licences.
(1) PLD 1964 SC 126 They also vest that authority with the jurisdiction to choose from among applicants the persons to whom licences can be granted. It has to see whether the rules have been complied with and then pass an order of issuance of licence. In regard to the touring cinemas sub-rule (2) of rule 6 gives the additional power to the Commissioner to extend the period fixed in that rule for the licences issuable by the District Magistrate. Sub-rule (3) of rule 6, which still holds the field further provides for review of any order of the District Magistrate and confers finality on the order of the Commissioner. The Act, therefore, does not only provide for the authority to act as a licensing authority but also provides for a review by a higher authority and gives finality to the order of that authority i. e. The Commissioner. In these circumstances, no power can be claimed by the Government in the garb of control which is not conferred by the Rules. It may also be seen by the letter dated the 23rd June, 1974, to which reference has already been made that the Government has been alive to the situation that while fixing the period of extension to be given by the Commissioner and the Government, it was not exercising any statutory function but was exercising an administrative function; but I am afraid. The Government is bound by the law of the land. It cannot exercise any administrative function which in the case of licensing of cine matogragh is not provided by the law or the rules. No doubt it is open to the Government to make amendments in the rules but for so long as these amendments are not made by publication in the official gazette, the Government does not have any jurisdiction to pass any order of the type passed in favour of the petitioner or respondent No,
3. If any amendment is made in the rules by publication, no doubt that amendment will make the rules a part of the statute but for so long as this is not done the Government as a statutory functionary has no power or authority to pass any order either of extension or of selecting a particular person as fit for a licence. This power has been granted by the conferment of review jurisdiction upon the Commissioner and his order has been given a finality.
The word "control" cannot take away the finality given by the rules to the order of the Commissioner or to the jurisdiction conferred upon the Deputy Commissioner.
13. The learned counsel then argued that the Government having conceded the alleged power to extend period of 60 days for grant of licence in favour of respondent No, 3, it cannot make the order subject to the condition referred to above. This point does not arise in view of what I have held; but if the power is conceded to the Government to fix a period of 60 days for grant of licence, the power to extend the period of 60 days to 120 days also will have to be conceded to it. This point, therefore, does not arise.
14. Lastly the learned counsel argued that the Government had no right to grant any licence initially to Shah Muhammad or to ask the District Magistrate to grant such a licence. The first part of my judgment sufficiently deals with this question. If the power is not there the question of conceding the power at the fag-end or at the initial stage will not arise. But it appears that the Government has misconceived the situation when it undertook to pass order even at the initial stage vide Memo. No, S.
0. (P&C)-VIII-2/76 dated the 23rd June, 1976, as being the repository of all administrative jurisdiction. But this argument or ground is absolutely fallacious as referred to above.
15. The sum and substance of the case is that the petitioner having obtained extension from the Government cannot rely upon it in view of my findings against the Government having any jurisdiction to grant it. The petition is, therefore dismissed in limine.