1. ' We intend to decide the following I.C.As. By one consolidated order having similar facts and law:-- - (1 ) I.C.A. No,930 of 2001, (2) I.C.A. No,950 of 2001, (3) I.C.A. No,951 of 2001, (4) I.C.A. No,112 of 2002, (5)
2. I.C.A. No,645 of 2002, (6) I.C.A. No,451 of 2002 and (7) I.C.A. No,776 of 2002.
3. ' The first three I.C.As. Arise out of the facts that Riaz Cinema, Capri Cinema and Sheesh Mehl Cinema filed Constitutional petition Writ Petition No,12976 of 2001, Writ Petition No,16102 of 2002 and Writ Petition No,16634 of 2001 with the prayer that Exemption Notification, dated 18-7-2001 be applied in its true sense and the matter of the aforesaid respondents/petitioners be considered on equity basis and the fixation of Rs,2,300 per day be withdrawn and be declared as illegal and with the further prayer that the aforesaid respondents/petitioners be allowed to pay the Entertainment Duty on the basis of each day under the Entertainment Duty Act, 1958. The aforesaid Constitutional petitions were accepted by the learned Single Judge vide orders, dated 11-10-2001.
4. ' The remaining I.C.As. Arise are that Sangeet Cinema, Capri Cinema, New Imperial Moon Light Cinema filed Constitutional petitions Writ Petition No,2502 of 2002, Writ Petition No,1169 of 2002, Writ Petition No,5225 of 2002 with the prayer for issuance directions to Government of the Punjab through Secretary, Excise and Taxation Department and Excise and Taxation Officer and Director (Headquarters), Excise and Taxation to collect entertainment duty from the respondents/petitioners in terms of the order, dated 11-10-2001 passed in Constitutional petition Writ Petition No,12976 of 2001, Writ Petition No,16102 of 2001 and that of order, dated 9-5-2002 passed in Writ Petition No,5225 of 2002, order, dated 25-1-2002 in Writ Petition No,1169 of 2002, which were accepted by the learned Single Judge.
5. ' The Government of the Punjab being aggrieved filed I.C.As. Nos.645 of 2002, No,112 of 2002 and No,776 of 2002. Akbar Rehman etc. Also filed I.C.A. No,451 of 2002 against the order of the learned Single Judge, dated 9-5-2002 passed in Writ Petition No,5225 of 2002.
6. ' Syed Najam-ul-Hassan Kazmi, learned counsel of the appellants submits that the respondents concealed the material facts in the Constitutional petitions and he highlighted history of framing the law in question. Submits that persons who engaged in Film Industries in this country caused colossal losses since 1970 in view of development in the science field incoming of VCR which was misused by small hotels owners. Tea stalls who without securing licence/permission from the competent authority have started showing Indian Movies on VCRs of their hotels and restaurants.
7. Subsequently, with the development of science and technology satellites in space started catering need of public and expansion of network, information technology alongwith transfer of news, views and movies and thereafter introduction of cable system. The persons who engaged in the Film Trade and exhibition of movies had made various representations to the Government to save the Film Trade and persons engaged in the said business. Consequently, the Government constituted certain committees, invited proposals, held deliberations with the representatives of the Film Trade and after minute review after verifying ground realities the competent authority had decided to provide relief to the Film Trade by allowing certain tax exemption and enforcing a system of fixed entertainment duty on the cinemas, a Cabinet meeting was held on 26-1-2001 and the following decisions were taken:---
(1) Entertainment Duty on cinemas in Punjab would be brought down from 65% to 30% but converted to a fixed charge per day in respect of different categories to be determined by the Excise and Taxation Department. The rate would be frozen for a period of five years.
(2) Annual Cinema Tax paid to the District Magistrate would not be levied for a period of 5 years.
(3) Annual Licence Fee paid to Punjab Government would not be levied for a period of 5 years.
(4) Weekly Municipal Show Tax shall be abolished.
(5) Annual Fee paid to PWD Department should not be levied for a period of 5 years.
(6) Fee/Tax levied on electrical inspection and miscellaneous expenses with regard to such inspections would not be levied for a period of 5 years.
(7) Professional Tax on Cinema and Proprietor shall be abolished.
(8) Government would not impose any restriction on number of daily shows.
(9) Ticket prices for cinema goers would not be fixed by the Government.
(10) Air-conditioning surcharge shall be abolished.
(11) Government would fix a date for annual inspection of all the cinemas between 1st and 31st of March every year.
(12) The concept of multiplexes would be further explored by a Committee comprising Secretary Housing, Director General, LDA and Administrator MCL, Lahore.
8. ' Consequently, section 3 of Punjab Entertainment Duty Act, 1958 was amended through Punjab Finance Ordinance, 2001 and proviso was added which is subject-matter of this controversy. Sindh Entertainment Duty Act, 1958 is also amended by insertion of section 6(a) which is para materia with proviso 3 of Punjab Entertainment Duty Act, 1958. He further urges that the Government also issued Notification of Exemption, dated 18-7-2001 to grant exemption to the Cinema and Proprietor from the payment of professional tax w.e.f, 1-7-2001. The respondents fixed Entertainment Duty on the basis of average per day in view of the statement showing , collection of Entertainment Duty for the years 1998-99, 1999-2000 and 2000-2001 in respect of Cinema Houses of Punjab. Notification dated 18-7-2001 was also modified vide Notification dated 15-8-2001 in terms of proviso of section 3(1) of Punjab Entertainment Duty Act, 1958. Learned counsel of the appellants submits that private respondents secured the order from this Court by filing Constitutional petitions without impleading the appellants as respondents in their Constitutional petitions, therefore, private respondents approached this Court with unclean hands. He further submits that the appellants are necessary and proper party which were not impleaded mala fide by the private respondents in their Constitutional petitions. He further urges that the impugned orders/judgments of the learned Single Judge are also hit by the principle of natural justice.
9. ' Mr. Muhammad Hanif Khatana, Additional Advocate-General appeared in the connected I.C.As.
10. Mentioned above, submits under instructions that Government has no intention to amend the law.
11. He further argues that Government will suffer irreparable loss in case the existing arrangement of method of levy of tax be changed. He also adopted the arguments of learned counsel of the appellants.
12. ' Mr. Ali Akbar Qureshi, Advocate has also adopted the arguments advanced by Syed Najam-ul- Hassan Kazmi, Advocate for appellants.
13. ' Mr. Ahmad Sibtain Fazli, learned counsel of the respondents submits that the learned Single Judge passed the basic impugned judgment/order on the basis of consenting parawise comments submitted by the Government of the Punjab through Secretary, Law and Parliamentary Affairs, Lahore in Constitutional Petition No,16634 of 2001, therefore, Government has no lawful authority to wriggle out from the stand taken by Government functionaries before the learned Single Judge while filing the report and parawise comments in Writ Petition No,16634 of 2001 on the well-settled principle of estoppel and waiver. He further submits that Advocate-General has given undertaking before the Court, therefore, the same is binding upon the Government so Additional Advocate- General has no lawful authority to wriggle out from the statement of the Advocate-General. He also placed on record letter of Advocate-General, Punjab, dated 11-1-2002 sent to the Deputy Secretary, Excise and Taxation under the heading Exemption in the provisions of section 3(1), Punjab Entertainment Duty Act, 1958 made through Punjab Finance Ordinance, 2001 of the Lahore High Court passed thereon. He further urges that the respondents are sufferer in view of addition of proviso in section 3 of Punjab Entertainment Duty Act, 1958. He further submits that the respondents are not in a position to pay Rs,2,300 per day to the Government as tax as the respondent would not earn such amount per day. He further submits that the respondents had no lawful authority to classify the cinemas on the basis of average of three years which is not prescribed under the provisions of Punjab Entertainment Duty Act, 1958. Learned counsel wants to rely upon report and parawise comments of respondent No,1 filed by the Government of the Punjab in Constitution Petition No,16634 of 2001 filed by Messrs Galaxy Cinema in I.C.A. No,951 of 2001 filed by the appellant against this , order which was not fixed by the office alongwith the connected matter. With the concurrence of learned counsel of the parties office was directed to issue cause list for today and learned counsel of the respondents was allowed to rely upon the report and parawise comments of respondent No,1 in the said writ petition, therefore, the same is also decided alongwith the aforesaid I.C.As.
14. ' Mr. Tahir Akhtar Paracha, learned counsel of the respondents submits that the respondents filed Writ Petition No,16102 of 2001 which was decided by this Court in favour of respondent Capri Cinema. The public functionaries failed to implement the order of This Court. The private respondents being aggrieved filed Constitutional Petition No,1169 of 2002 which was decided by the learned Single Jude in favour of Capri Cinema on the ground that Government failed to challenge order passed by the learned Single Judge in Writ Petition No,16102 of 2001, therefore, the same has become final between the parties. He further adds that the appellants have no locus standi to file present I.C.A. Against the order of the learned Single Judge as the appellant No,1 is resident of Faisalabad in I.C.A. No,451 of 2002 whereas the appellant. No,2 is Association and Association has no right under the law to challenge the vires of the order of learned Single Judge by filing present I.C.A.
15. ' Syed Najam ul Hassan Kazmi, learned counsel of the appellants submits in rebuttal that the appellants have filed I.C.A. No,951 of 2001 against the order of the learned Single Judge dated 11-10- 2001 passed in Writ Petition No,16634 of 2001 and filed I.C.A. No,112 of 2002 against the order of the learned Single Judge, dated 25-1-2002 passed in Writ Petition No,1169 of 2002 and also filed I.C.A.
16. No,950 of 2001 against the order of the learned Single Judge, dated 11-10-2001 passed in Writ Petition No,16102 of 2001, therefore, impugned order dated 25-1-2002 is also not in accordance with the ground realities and is result of nonimpleading the appellants as respondents in the Constitutional petitions. He further urges that this Court has no jurisdiction to frame the law while exercising the power under Article 199 of the Constitution but the learned Single Judge while accepting the writ petition had taken the role of legislator as is evident from para. 5 of the impugned orders passed in Constitutional petitions on 11-10-2001.
17. ' We have given our anxious consideration to the contentions of learned counsel of the parties and perused the record ourselves.
18. ' It is better and appropriate to reproduce the minutes/decision of the Cabinet meeting dated 26- 2-2001, proposal for amendment in section 3 of Punjab Entertainment Duty Act, 1958 and addition to proviso in section 3(1) of the Punjab Entertainment Duty Act, 1958 vide Ordinance No,VI of 2001 under the name and style of Punjab Finance Ordinance, 2001 and also section 6(1) which was inserted in Sindh Entertainment Duty Act, 1958:--- MINUTES OF THE MEETING DATED 26-2-2001
(1) Entertainment Duty on cinemas in Punjab would be brought down from 65% to 30% but converted to a fixed charge per day in respect of different categories to be determined by the Excise and Taxation Department. The rate would be frozen for a period of five years.
(2) Annual Cinema Tax paid to the District Magistrate would not be levied for a period of 5 years.
(3) Annual Licence Fee paid to Punjab Government would not be levied for a period of 5 years.
(4) Weekly Municipal Show Tax shall be abolished.
(5) Annual Fee paid to PWD Department should not be levied for a period of 5 years.
(6) Fee/Tax levied on electrical inspection and miscellaneous expenses with regard to such inspections would not be levied for a period of 5 years.
(7) Professional Tax on Cinema and Proprietor shall be abolished.
(8) Government would not impose any restriction on number of daily shows.
(9) Ticket prices for cinema goers would not be fixed by the Government.
(10) Air-conditioning surcharge shall be abolished.
(11) Government would fix a date for annual inspection of all the cinemas between 1st and 31st of March every year.
(12) The concept of multiplexes would be further explored by a Committee comprising Secretary Housing, Director-General, LDA and Administrator, MCL, Lahore.
19. PROPOSAL FOR AMENDMENT IN SECTION 3(1)
20. ' The following amendment is to be included in the Punjab Finance Ordinance, 2001 relating to Entertainment Duty administered by the Excise and Taxation Department, in compliance of the decision taken in the Cabinet Meeting held on 26-2-2001 (Annexure A): Amendment in the entertainment duty ' In the Punjab Entertainment Duty Act, 1958 in subsection (1) of section 3, the following provision would be added by deleting full stop (.) after the word "duty" at the end of the last line:-- ' "except in case of Cinema Houses where the Entertainment Duty has been reduced from 65 to 30% and converted into a fixed charge per day in respect of different categories of Cinema. Houses screening/exhibiting movies only. The Government shall determine the categories of Cinema Houses and fix per day rate for each cinema. The per day rate so fixed would remain operative for a period of 5 years."
21. Addition of proviso in section 3(1)
22. "3. Amendment of Act (X) of 1958.--- In the Punjab Entertainment Duty Act, 1958 (X of 1958), in section 3, in subsection (1), before the existing first proviso, the following proviso shall be added:-- ' "Provided that, for a period of five years, the entertainment duty shall be levied and paid to the Government on all payments for admission to cinema houses at the rate of thirty per cent. Of such payment and shall be converted into fixed charge per day in respect of different categories of cinema houses, screening or exhibiting movies. The Government shall determine the categories of cinema houses and fix per day the rate of entertainment duty for each cinema."
23. Section 6-A of Sindh Entertainment Duty Act, 1958 "6-A. Mode of levying entertainment duty on cinemas.--- (a) Notwithstanding anything contained in this Act, the entertainment duty on per day basis on cinemas shall be levied according to the classification of the cinemas as specified in the Schedule to the Act.
(b) Government or any authority empowered by Government in this behalf, may at any time, after holding such inquiry as it deems fit, alter the classification of any cinema: ' Provided that the classification of a cinema shall not be upgraded without giving an opportunity to the proprietor of the cinema to show cause against the proposed upgrading;
(c) The entertainment duty in respect of a cinema shall be paid by the proprietor of the cinema;
(d) The entertainment duty under this section in respect of a cinema shall be payable in advance for all the cinematographic exhibitions (shows) which such cinema is authorized to hold during the following week: ' Provided that if it is proved that in the case of any cinema, during any week, less than the authorized number of cinematographic exhibitions (shows) for such cinema have been held, the proprietor of the cinema shall be eligible, at his opinion for refund of the entertainment duty paid by him for shows not held, or to have the same set off against future payment of entertainment duty;"
24. In case the aforesaid facts are put in juxtaposition then it brings the case in the area that section 3 was amended on the representation of the persons engaged in the business/trade in cinema, therefore, private appellants are necessary and proper party as the law laid down by the Honourable Supreme Court in Abdul Wali Khan's case reported as PLD 1976 SC 57. It is admitted fact that private respondents did not implead the appellants as respondents in their Constitutional petitions, therefore, A private respondents did not approach this Court with clean hands. It is the duty and obligation in the aforesaid background upon the private respondents to implead the appellants as respondents in their Constitutional petition in view of the law laid down by the Honourable Supreme Court in Muhammad Rameez's case PLD 1992 SC 221. It is also admitted fact that the impugned orders were passed without any notice to the private appellants, therefore, the impugned orders are hit by the principle of natural justice as the law laid down by the Honourable Supreme Court in the following judgments:- ' Pakistan and others v. Public-at-large and others PLD 1987 SC 304; Crescent Sugar Mills and Distillery Ltd., Faisalabad v. Central Board of Revenue, Islamabad and 2 others PLD 1982 Lah.
25. 1.
26. In view of aforesaid Cabinet decision the appellants have secured vested right on well-known principle of promissory estoppel and locus poenitentiae as the laid down by the Hon'ble Supreme Court in the following judgments:--- ' Pakistan through Secretary, Ministry of Commerce v. Salah-udDin and 3 others PLD 1991 SC 546 and Pakistan through Secretary, Ministry of Finance v. Muhammad Himyat Ullah Farooqi PLD 1969 SC 407.
27. It is also admitted fact as mentioned above that private appellants were not impleaded as party by the private respondents in their Constitutional petitions, therefore, statement of the Advocate- General, Punjab is not binding upon them. The private appellants are well within their rights to challenge the vires of the impugned orders of learned Single Judge in the aforesaid appeals as laid down by the Honourable Supreme Court in Wazir Ali Industries' case PLD 1969 SC 65.
28. ' The contention of learned counsel of the respondents that order passed in Constitutional Petition No,16102 of 2001 was not challenged before any higher forum, therefore, the same has become final, has no force in view of the aforesaid circumstances as the I.C.As. Have already been filed by the appellants against the order/judgment, dated 11-10-2001 passed in Writ Petition No,16102 of 2001 (I.C.A. No,950 of 2001), and order/judgment of learned Single Judge dated 25-1-2002 passed in Writ Petition No,1169 of 2002 (I.C.A. No,112 of 2002), therefore, judgment of the learned Single Judge, dated 25-1-2002 is judgment per incuriam. The contention of learned counsel of the respondents that Akbar Ali etc. Has no locus standi has also not force in view of the law laid down in Fazal Din's case reported as PLD 1969 SC 223. It is pertinent to mention here that private respondents did not challenge the vires of proviso of section 3(1) of Punjab Entertainment Duty Act, 1958 in any of the Constitutional petition as is evident from prayer clause of all the Constitutional petitions filed by the private respondents before this Court.
29. In view of what has been discussed above, these I.C.As. Are accepted. However, keeping in view the controversy in the appeals and Constitutional petitioners parties are directed to appear before the Secretary to Government of the Punjab, Excise and Taxation Department, Lahore, who is directed to look into the matter personally and pass an appropriate order strictly in accordance with law after providing the proper hearing to all the concerned including the appellants and private respondents within two months after receiving the orders of this Court. The parties are directed to appear before the Secretary in his office on 18-10-2003, who is directed to pass an appropriate order strictly in accordance with in terms of the aforesaid directions either himself or entrust the same to some competent authority who will decide the same in terms of the aforesaid directions without being uninfluenced by any observation of this Court and the learned Single Judge.. In view of what has been discussed above aforesaid I.C.As. Are disposed of with above mentioned observations.