KARAMAT NAZIR BHANDARI, J. -- Necessary and undisputed facts for disposal of this petition are that Taj Cinema vested in Main Taj Din, father of the petitioner and predecessor-in-interest of respondents Nos. 2 to 7 and 9 to 13. Said Mian Taj Din was also licensee of the cinema under the Motion Pictures Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979) read with the Punjab Cinematograph Rules, 1984 (hereinafter referred to as the Rules, 1984). He died on 13.1.1996, leaving behind the cinema, some other properties, heirs from 2/3 wives and the consequential disputes about sharing of the properties. It is the case of the petitioner that his father made an oral gift of the cinema in favour of the petitioner way back in 1975 which he later on also acknowledged in writing. The factum of gift and ownership of the cinema with the petitioner is contested by private respondents/other legal heirs. It is stated that after the death of the owner/licensee, the petitioner applied for grant of licence but the District Magistrate has been withholding the decision and is refusing the same on one pretext or the other, including the extraneous influence of a Punjab Minister who happens to be real paternal uncle of the contesting parties. The petition further details the stages of past and present litigation pending in Civil Court/Appellate Courts between the parties. Finally on 27.8.1998, the District Magistrate declined the application of the petitioner for grant of licence for the reasons stated therein. In this Constitutional petition it is prayed that the District Magistrate he directed to issue/grant the licence in favour of the petitioner. As an interim relief it has been prayed that this Court may issue a direction for grant of temporary permit.
2. In the report and parawise comments submitted by the District Magistrate, the denial of licence is justified on the ground that the petitioner does not fulfil the conditions prescribed in the relevant rules. It is claimed that the petitioner was directed to fulfil the requirement of Rule 5 (2) and 69 of the Rules, 1984 which he has not done so far and no final order upon his application has been passed. Reply to the writ petition has also been filed by the body of contesting heirs namely respondents Nos. 2 to 7 and 9 to 13 in which the interse dispute has been highlighted and it is claimed that the petitioner alone is not entitled to inherit/grant/renewal of the licence which stood in the name of Late. Mian Taj Din, predecessor ininterest of the parties.
3. In support of the petition it has been contended that the view of the District Magistrate on legal plan is not correct. It is urged that even in disputed cases of ownership the District Magistrate can grant licence so that the cinema itself is run and revenue generated for the Government. It is urged that in fact the District Magistrate has acted under the extraneous influence of one Minister of the Punjab Government who was closely related to the parties and who was inimical towards the petitioner. It is also urged that even in cases of disputed ownership the District Magistrate can issue a temporary permit pending adjudication of contested claims either by himself or by the Civil Court.
4. On the other hand, learned counsel for the contesting heirs has maintained that the cinema as well as the licence, after the death of the owner/licensee, vests in the whole body of the legal heirs and the petitioner alone is not entitled to either claim the licence, or to run the cinema to the exclusion of the other heirs. He has maintained that Rule 74 of the Rules, 1984 deals with the issuance of temporary permit and is not attracted to the facts and circumstances of the case which is governed exclusively under Rule 70 of the Rules, 1984.
5. Mr. Muhammad Amin Lone, Assistant Advocate General Punjab has also supported the stance taken by the District Magistrate.
6. Admittedly the parties are litigating on the civil .Side for the ownership of the cinema as well as the profits accruing from the same. It would, therefore, be improper for this Court to comment upon the respective claim of the parties, much less determine these questions as these have to be determined by the proper Court where the litigation is pending. I would, therefore, solely confine to the determination of the question of applicability of the relevant rules and of the grant/issue of licence or a temporary permit.
7. The survey of the statutory provisions namely the Motion Picture Ordinance, 1979 and the Rules, 1984 shows that no cinema can be run without a licence. Section 13 of the Ordinance, 1979 so requires. The Ordinance, 1979 as well as the Rules, 1984 made thereunder lay down in detail the manner of construction, electrification, maintenance and allied matters of the cinema and the obligations to maintain the cinema in accordance with the conditions of the licence. Rule 5 deals with the question of grant of licence and apparently this rule is applicable to a freshly constructed cinema as the rules earlier to Rule 5 deal with the .Question of No Objection Certificate in respect of construction of a cinema. Chapter No. 7 of the Rules deal with the question of procedure for the grant of cinema licence. Under Rule 69 of the Rules, 1984 certain conditions for grant of a licence have to be fulfilled by the applicant. Rule 5 together with Rule 69 deals with the question of grant and renewal of the licence. Rule 70 (1) says that licences granted under Rule 69 of the Rules, 1984 are either annual or temporary. Under Rule 70 (2) it is stated that:- "A licence granted under sub-rule (1) shall not be transferable except with the prior written permission of the District Magistrate but on the death of the licensee the licence may he transferable by the District Magistrate to the legal heirs of the deceased licensee: Provided the person or persons inheriting the cinema fulfil the provisions of the rules and conditions set forth in the Schedule of Conditions appended to these Rules."
8. Rule 73 lays down the time when the application for renewal of an annual licence should be made. Rule 74 is also relevant and is reproduced below:- "Power to grant or refuse to grant the licence: (1) If, on an application for the renewal of an annual licence, the District Magistrate does not for any reasons, before the date of expiry of the licence, either renew the licence or refuse to renew the same, he may grant a temporary permit in Form 'C'.
(2) Such temporary permit shall be subject to the condition of the licence sought to be renewed and shall be valid for such period not exceeding three months as the District Magistrate may direct: Provided that the temporary permit shall cease to be valid and shall be surrendered to the District Magistrate by the applicant receiving his licence duly renewed, or on his receiving an ing to renew the licence."
9. It will be seen that Rule 70 (2) is directly applicable to the present situation. Mian Taj Din was the licensee who died on 13.1.1996. The District Magistrate can transfer the licence to the legal heirs of the deceased licensee if he finds that the person or persons inheriting the cinema fulfil the provisions of the rules and conditions set forth in the Schedule of Conditions appended to these Rules.
10. The question, however, is as to how the District Magistrate should proceed in the event of serious contest to the claim of ownership amongst the heirs.
(I) Should he tentatively proceed to decide the question himself or should he direct the parties to have the same adjudicated from the proper forum?
(II) Should the cinema be kept closed pending decision by the District Magistrate or by the proper forum?
(III) Is the District Magistrate competent to permit running of the cinema pending resolution of dispute under Rule 74 by grant of a temporary permit?
11. Learned counsel appearing for the parties in this case stated that so far as their knowledge goes, the above questions have not been judicially determined by any precedent case. Learned counsel for the petitioner did refer to the case of Faqir Sayyed Fayyaz-ud-Din and another Versus District Magistrate, Lahore and another (PLD 1964 Lahore 359) which is not helpful to answer the above question as the facts of the case were different.
12. The survey of the provisions of the Ordinance and the Rules leads to the conclusion that a cinema cannot be run without a licence granted by the District Magistrate. Grant and renewal of licence is governed by the provision of Rule 5 react with Rule 69 of the Rules. A licence granted can be annual or temporary and for a short period. Under Rule 74, pending decision of renewal of licence, a District Magistrate can grant temporary permit for running a cinema. On the death of a licensee, the District Magistrate has the power to transfer the licence to the legal heirs. This is provided in rule 70 (2) of the Rules and it is this provision which is attracted to the facts and circumstances of the present case.
13. The language of this provision shows that this is an enabling provision and before the District Magistrate can direct transfer to the legal heirs, he has to satisfy himself that the person inheriting the cinema fulfil the provisions of the Rules and conditions set forth in the Schedule of conditions appended to the Rules. In other words if in a given case one or more of the legal heirs do not fulfil the conditions laid down in Rule 69 and other Rules, transfer of licence to him/them can he declined. Logically, therefore, in case of contest/dispute between the legal heirs the District Magistrate can tentatively decide the question of transfer. I am using the expression,"tentatively" because the finding and the course adopted by the District Magistrate will have to be subject to any final adjudication by the Civil Court, because inter se dispute of inheritance amongst the legal heirs, is a civil dispute and can exclusively be resolved by the Civil Court.. The finding will be subject to- oder/judgment/decree of the Civil Court on these questions. It may not be possible to enumerate all the considerations which should be kept in view by the District Magistrate in deciding the inter se controversy between the heirs but keeping in view the object of the Ordinance/Rules, the District Magistrate can give weight to the fact of possession of the cinema, the suitability of the claimant, his past experience in the field and the likelihood of a candidate to fulfil and abide by the conditions of the licence. These are not exhaustive factors but are some of the relevant factors.
Question No 1 noted in Para No. 10 of the judgment is, therefore, answered in the above terms.
14. As regards question No. 2, it is clear that it is in nobody's interest that pending decision by the Civil Court or by the District Magistrate, the cinema should be kept closed. Learned counsel for the contesting heirs has argued that Rule 74 is restricted to a case of renewal and not for transfer of the licence to the legal heirs. He has, therefore, submitted that in case of transfer of licence to the legal heirs falling within Rule 70 (21 of the Rules, no temporary permit can be issued.
15. The submission does not seem to be correct. Even though Rule .74 states that "if, on an application for the renewal of annual licence, the District Magistrate............ He may grant a temporary permit in Form 'C'." However, keeping in view the entire object of the Ordinance and the Rules, there is no compelling reason to restrict the grant of temporary permit to the case where only renewal of licence is involved. The District Magistrate while seized of the question of transfer of the licence to one or the other legal heir/heirs should be able to decide the question of running of cinema ad interim, pending final orders in respect of issue/transfer of licence. The term renewal is not defined by Rules and going by ordinary dictionary meaning it would encompass a case of an existing licensee seeking extension. In case the licensee dies, the transfer of licence in favour of the legal heirs can also be described as a case of renewal although not in the name of the deceased but in the name of one or the other or all the legal heirs.
Element of continuation is there, even in such a case. Looked at from this angle also, I hold that'
Rule 74 is available to a District Magistrate to allow the running of a cinema on a temporary permit, pending decision by himself as regards the transfer of licence in favour of the contesting legal heirs. This interpretation would enhance objective of the Ordinance and the Rules and would also generate economic activity and fetch revenue to the State. It is emphasized that keeping the cinema closed, is .In nobody's interest, not even in the interest of warring legal heirs as their rights in the cinema and in its income and profit will in any case be determined by the Civil Court and not by the District Magistrate. As I have it, in this case the contesting legal heirs are already litigating in the Civil Court and as such the respective rights of the legal heirs in the corpus of the cinema and its machinery as. Well as in its income and profits will be determined by the Court in due course and whoever may be running the cinema under the licence granted by the District Magistrate will have to be bound by the judgment of the Civil Court in respect of the corpus as well as the income, and the profits. There is, therefore, no deprivation of the rights of legal heir/heirs who is/are excluded from the actual running of the cinema under the licence granted by the District Magistrate.
16. The perusal of the impugned order shows that the District Magistrate has proceeded to decide the claim of the petitioner on consideration of Rules 5/69 of the Rules and has not kept in view the provision of Rule 70 (2) of the Rules. It is a case of misdirection in law.
17. For all the above reasons, this petition is allowed and the impugned order of the District Magistrate dated 27.8.1998 is hereby declared as without lawful authority and consequently of no legal effect. The application of the petitioner for the transfer of licence shall be deemed to be pending with the District Magistrate which shall now be decided by him afresh in accordance with law and in the light of this judgment, in the presence of all the contesting heirs and after giving them opportunity to present their point of view. As the cinema is not running due to this dispute, the District Magistrate shall decide this question within four weeks at the latest and pending decision the District Magistrate may also consider the question a permitting running of the cinema on temporary basis as laid down in Rule 74 of the Rules. The parties are left to bear their own costs.