P L D 1961 (W (PLP)

Muhammad Shafi with Muhammad Nazar Khan for Petitioner. A. H. Najfi for respondents No. 2 and

3. Nemo for respondent No.

1. Dates of hearing : 8th and 13th December 1960. ANWARUL HAQ, J.‑The petitioner Nazir Beg is the lessee of a cinema, known as the 'Golden Cinema', situated in Mardan, which is owned by respondents No. 2 and

3. The lease is for the period 1st July 1959 to 30th June 1962. Previously the cinema was treated as an evacuee concern and was allotted to one Nawab Kamal Khan. This gentleman returned to India in 1954. The licence of the cinema had been taken out, and continued to be renewed, in his name until the year 1959. The petitioner Nazir Beg was described as the Managing Proprietor in the licence. In the year 1959, the petitioner Nazir Beg was convicted by a Military Court and sentenced to ten years' rigorous imprisonment and a fine of Rs. 40,

000. The sentence of imprisonment was, however, later reduced to two years' rigorous imprisonment. He appointed one Abdul Hadi as his attorney. Abdul Hadi presented an application to the District Magistrate of Mardan for renewal of the licence on the 6th of January 1960, but by his order dated the 7th of July 1960, copy at Annexure `D' to the petition, the District Magistrate has refused to renew the licence for the reasons that "Kamal Khan is nowhere on the earth after 1954, the lessee Nazir Beg has been convicted by a Martial Law Court, and there is no legality of running the Golden Cinema by the present lessee being attorney of the convicted lessee." The Dirtrict Magistrate, therefore cancelled the licence standing in the name of Nawab Kamal Khan and directed the owners to produce evidence regarding their ownership and to make arrange ments for the running of the cinema.

2. On the 25th of July 1960, an application was filed on behalf of the petitioner Nazir Beg praying for the issue of a licence in his own name, but this was rejected on the 27th of July 1960 in the following words :‑ "Let him appeal. This may be filed."

3. Nazir Beg is aggrieved by these orders of the learned District Magistrate, Mardan. It is contended on his behalf that (a) the order dated 27‑7‑60, is arbitrary and against the principles of natural justice as the petitioner was not heard and his case not examined on merits. (b) the order is against the provisions of the Cinematograph Act of 1918, as the petitioner had satisfied all the conditions laid down in section 5 of the Act for the grant of a licence and was, therefore, entitled to the issue of a licence for running the cinema, and (c) the conviction of the peti tioner under Martial Law Regulations is irrelevant for the purpose of deciding the question of the issue of the licence, as it is the cinema premises which has to be licensed and not the individual.

4. The petitioner has prayed for a writ of certiorari for quashing both the orders of the District Magistrate and also for a writ of mandamus directing the District Magistrate to grant the requisite licence to the petitioner for running the Golden Cinema.

5. Mr. Muhammad Shafi, the learned counsel appearing for the petitioner, has relied on several English authorities to show that the proceedings concerning the issue of a licence under the Cinematograph Act are of a judicial or, at any rate, quasi‑judicial nature and, therefore, a writ of certiorari lies in respect of such proceedings. He particularly relies on Rex. v. London County Council ; Ex parte Entertainments Protection Association (1931 L T R Vol. 144, p. 464), In this case their Lordships have discussed at length the nature of the proceedings under the Cinematograph Act and the scope of a writ of certiorari and have held that "a County Council, in proceedings for granting licences under the Cinematograph Act of 1909, and proceedings consequential thereon‑like licensing justices and confirming authorities in proceedings for granting public‑house licences‑are under a duty to act judicially, and so, as in those proceedings, they have legal authority to determine questions affecting the rights of subjects, and if they act in excess of their legal authority, certiorari will lie." The learned counsel has pointed out that the provisions of the Cinematograph Act of 1909 in England are very similar to those of the Cinematograph Act of 1918 under which the petitioner's applica tion was made.

6. Whatever be the state of law in England with regard to proceedings under the Cinematograph Act of 1909, we consider that in view of the dictum of their Lordships of the Supreme Court in Tariq Transport Co., Lahore v. The Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak.) 437), Mr. Shafi's contention that the District Magistrate of Mardan was acting judicially in dealing with the petitioner's application for the issue of a licence under the Cinematograph Act of 1918 cannot prevail. In that case their Lordships dealt exhaustively with the distinction between a judicial and an administrative act, and came to the conclusion that even a Regional Transport Authority acts in an administrative capacity and not judicially in spite of the fact that the law enjoins a public hearing of the applications for the grant of route permits, and there is also the requirement of stating reasons for the action taken. It was observed that "the applicants have no legal right to the grant of a permit, which depends upon matters of policy in the light of considerations mentioned in section 47 (1)". It seems to us that in the light of principles laid down by their Lordships of the Supreme Court, we must hold that the District Magistrate of Mardan was acting in an administrative capacity in the matter of the grant of licences A under the provisions of the Cinematograph Act of 1918. Such being the case, no writ of certiorari lies for quashing the orders it question.

7. It was next urged that the applicant had a legal right to the grant of a licence for running the cinema, as all the conditions laid down in section 5 (1) were fulfilled by him. No one has appeared on behalf of the District Magistrate, Mardan, to controvert the assertion that the conditions laid down in section 5 (1) were fulfilled, but it appears that the mere fulfilment of conditions laid down in that section does not confer a right on an applicant to the grant of a licence. The section is of a directory nature and enjoins the Licensing Authority not to grant a licence under the Cinematograph Act unless certain conditions are satisfied. Subsection (3) of section 5 lays down that the Licensing Authority may grant licences under the Act to persons as it thinks fit and on such terms and conditions and subject to such restrictions as it may determine. It would appear, therefore, that even when the con ditions laid down in section 5 (1) are fulfilled the licensing authority retains a discretion under subsection (3) of the same section to grant or to refuse the licence. For these reasons we do not think that a case is made out for the issue of a writ of mandamus that a licence must be granted to the applicant.

8. At the same time, we consider that there is, however, a clear case for the issue of a writ of mandamus to the District Magistrate of Mardan to decide the petitioner's case one merits. The order passed by the District Magistrate on the 7th of July, 1960 was mainly directed to deciding the question as to whether the licence should be renewed in the name of Nawab Kamal Khan or not. Having refused to renew the licence in that name and ordering its cancellation for the reasons given in that order, the District Magistrate, however, went on to give a direction to the owners of the cinema to make arrangements for the running of the cinema. This direction was not covered by any provision of the Cinematograph Act. When the petitioner applied for the issue of a licence in his own name, the District Magistrate did not care to examine the merits of that applica tion and merely observed that "let him appeal". We have not been able to discover any provision in the Cinematograph Act or the rules framed thereunder allowing for an appeal to any specified authority. Subsection (3) of section 5 of the Act, no doubt, says that the licensing authority is to act subject to the control of the Provincial Government, but that is not tantamount to providing a right of appeal to an applicant C whose application is refused by the District Magistrate. The order passed by the District Magistrate was, therefore, clearly of an arbitrary nature and not founded on law. Having refused to renew the license in the name of Nawab Kamal Khan, it was the duty of the District Magistrate to examine the merits of the petitioner's application for the grant of a license in his own name. The petitioner clearly had a legal right to have his application considered on merits in accordance with the pro visions of the Cinematograph Act, and we may add that the primary consideration in granting or refusing a licence under D section 5 is the fulfilment of the requirements of subsection (1). The fact that the petitioner had been convicted under Martial Law was, therefore, of little or no significance to the merits of the case.

9. We would, therefore, accept this petition to the extent of issuing a writ of mandamus directing the District Magistrate of Mardan to consider and decide the petitioner's application for the grant of a license on merits. In the circumstances of the case, we leave the parties to bear their own costs. K. B. A. Petition accepted.