305 (PLP)

Muhammad Javid Malik, Froprietor Naz Cinema, Attock Cantonment, the petitioner filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 against the Federation, respondent No. 1, the Cantonment Board, Lahore, respondentrespondent No. 3, Cantonment Executive Officer, Kamra Cantonment, respondent No. 4 and Cantonment Board, Peshawar, respondent No. 5 for directing the respondents to strictly enforce the provisions of the Motion Pictures Ordinance 1979, Pakistan Cantonment Cinematograph Rules 1985, and the Cantonments Act 1924 as regards obtaining of No Objection Certificates and Cinematograph Licences for exhibiting. Cinematograph pictures in the Cinemas/Auditoriums situated within the limits of the Cantonment Boards and also to collect entertainment duty assertedly payable under President's Order No. 13 of 1979, from the respondents (No. 6 to 9) who are the lessees of the Cinemas/Auditoriums situated within the limits of respondent Cantonment Boards.

2. The respondents Nos. 6 to 9 are Ch. Nazir Ahmad, Robina Nazir and Ch. Mushtaq Ahmad. They have been impleaded as they are holding jointly-leases of these auditoriums/cinemas except for P.A.C. Auditorium Kamra Cantonment which is on lease with Ch. Mushtaq Ahmad exclusively. The leases of Cinemas/Auditoriums were granted to the respondents Nos. 6 to 9 by the Presidents of the Service Institutes of the respective Pakistan Air Force bases or Army Garrisons, but the Service Institutes, the lessors of these auditoriums/cinemas have not been impleaded as party to the petition.

3. The case of the petitioner is that lessees of these auditoriums are bound to obtain Licences from the respective Cantonment Boards under Section 13 of the Motion Pictures Ordinance, 1979, read with Section 124 (3) Cantonments Act 1924 and Rules 3 and 4 of the Pakistan Cantonment Cinematograph Rules, 1985 and also to pay entertainment duty in respect of civilian visitors at the rate of 100% of the price of the ticket. It was explained that the auditoriums/cinemas in the immediate and direct control of the Military authorities are exempt from taking out the Licence but the private respondents, the lessees, as are in control of the auditoriums, the provisions of subsection (3) of section 124, Cantonments Act 1924 do not apply and as such the lessor the respective Service institute or the Lessee are bound to obtain the requisite Licence. As regards payment of entertainment Duty by the Lessees, it was contended that the President's Order No. 13 of 1979 has adopted the provisions of the Entertainment Duty Act 1958 (a provincial law) for the purpose of levying the duty on the admission of civilian visitors to the film exhibitions held in the auditoriums situated within the limits of Cantonments (the federally controlled area). It was asserted that in all these institutes, of which the respondents held leases, civilians are being admitted to the film exhibition but Entertainment Duty is not being paid to the Cantonment Boards. The petitioner explains his grievance in one of the paras of the petition as under:-- "The respondents admit non-exempted civilians and collect the entertainment duty but do not pay the same to the respective Boards, whereas the petitioner is collecting and paying the entertainment duty to his Cantonment Board with the result that the respondents by pocketing the full amount received are financially better of to screen better, expensive and costly films and thus attract more visitors while the petitioner, who has to pay 100% duty is made to face unequal competition and in this manner the business of the petitioner is being adversely affected." It was claimed that not only that the petitioner is being made to suffer financial continuously but the Government and the Cantonment Boards are also being deprived of the entertainment duty to the tune of Rs. 15,000 per month per auditorium.

4. The position taken by each of the respondents may now be noticed: (a) Islamic Republic of Pakistan, respondent No.

1. The position taken by the Federation in the written statement may be summed up as under:-- The Cinema Licenses are issued by the Cantonment Boards and the entertainment duty is levied and recovered by them from all Cinemas/Auditoriums situated within cantonment limits, the petitioner's cinema is one of them. However, purely regimental/garrison cinemas and auditoriums admittance where into is restricted to soldiers/sailors/airmen, i.e military personnel who are exempted from the payment of Entertainment Duty, are neither required to obtain Cinematograph Licences annually nor even to recover and pay any Entertainment Duty. The cinemas/auditoriums of respondents Nos. 6 to 9 are believed to be purely regimental/garrison ones admittance whereinto is confined strictly to the Military Personnel such as soliders/sailors/airmen, who enjoy exemption from payment of entertainment duty. It was added that if respondents Nos. 6 to 9 are admitting civilians and other non-exempt persons into their cinemas/auditoriums, they should be liable not only to obtain licences annually but also to recover Entertainment Duty and to pay the same to the Cantonment Board concerned. (b) Cantonment Board, Lahore Cantonment, Respondent No.

2. Mr. Muhammad Rashid Ahmad, Advocate, appearing for respondent No. 2, stated that the petition is not maintainable as the petitioner has no cause of action as against it. It was further asserted that in the previous writ petition (W.P. No. 4319/83) the position taken by the Cantonment Board, Lahore Cantonment was that the Board is not interested in the recovery of the duty said to be payable. (c) Cantonment Board, Attock, respondent No.

3. The position taken in the report submitted is that the Artillery Centre, Attock has arranged for the welfare of the Jawaans in its Centre through a contractor. The respondent does not charge any duty from the said contractor on his plea that only Military personnel are admitted to the shows. Similarly no entertainment duty is charged from the contractor for the sale of tickets to Military personnel for whom he has made special arrangements through a special window. The assertion contained in para. 7 of the writ petition to the effect that entertainment duty for the civilians being admitted to the shows held in the auditorium is not being paid was replied by saying that respondents are liable to pay entertainment duty if Civilians of General Public are admitted to Garrison Cinema, but the respondents are not doing any act against law in connection with the entertainment duty. With these submissions it was prayed that the petition be dismissed. However, different position was taken in the written statement subsequently filed by the Cantonment Executive Officer, Attock, as it was stated that respondents Nos. 7 and 8 (Robina, Nazir and Ch. Mushtaq Ahmad) are also bound to obtain Cinema Licence as Civilians/General Public are admitted intoArtillery Auditorium/Cinema, Attock and they are also legally bound to pay entertainment duty but so far they do not allow respondent No. 3 to enter their cinema premises to check civilian admission and, therefore, the answering respondent is unable to recover entertainment duty from them. So the position taken is that the lessees are legally bound to pay entertainment duty on civilain admissions, and that despite utmost efforts to recover entertainment duty the lessees have not paid the same. It was prayed that the petition be decided in the light of the above-noted submissions. (d) Respondent No. 4, Cantonment Executive Officer, Kamra Cantonment, has not filed comments or the written statement. (e) Cantonment Board Peshawar, respondent No.

5. The position taken is that PAF Institute Cinema Peshawar is running and exhibiting films without obtaining licence as required under Rule 3 (Chapter 2nd) of Pakistan Cantonments Cinematograph rules, 1985 read with section 124 of Cantonments Act, 1924 and Motion Pictures Ordinance, 1979; that the specimen copy of the lease deed between the P.A.F. and Ch. Nazir Ahmad and Ch. Mushtaq Ahmad (attached as appendix A) does not contain any clause to the effect that no civilian shall be admitted to the Auditorium, consequently in the absence of the said clause, the contractor of the P.A.F. Institute Cinema, Peshawar, is admitting the civilians in the PAF cinema without payment of the entertainment duty to the Cantonment Board, Peshawar; that in spite of the constant correspondence, P.A.F. authorities have not paid any heed to obey the orders issued vide Memo. No.79/D-12/ML&C/71-II dated 5-12-1982 of the Ministry of Defence (Defence Division) Rawalpindi and the other orders of C.M.L.A. etc; and that in fact Cantonment Board, Peshawar has tried its best to enforce Presidential Order No. 13, 1979, and Pakistan Cantonment Cinematograph Rules 1985 but the respondent is persistently ignoring the law. With these submissions it was prayed that appropriate orders be passed. (1) Robina Nazir and Ch. Nazir Ahmad respondents. The position taken in the written statement filed by the respondents is that neither the Federation nor Cantonment Boards have required them to obtain the licence or to pay the entertainment duty and that they are ready and willing to observe the law. It was conceded that civilians are being admitted to exhibitions being held in the Auditoriums of which they hold leases alongwith Ch. Mushtaq Ahmad respondent. It was further stated that if the Cantonment Board Attock directs them to pay the entertainment duty in respect of the civilians they would comply with the said direction. (g) Ch. Mushtaq Ahmad respondents. The petition was contested by Ch. Mushtaq Ahmad respondent lessee. He for all practical purposes is the contesting respondent. The preliminary objections taken by him are to the effect that the petitioner is not an aggrieved person, therefore, he has no locus standi to maintain the petition; that the Service Institutes, the lessors, are necessary parties to the petition and the present petition in their absence is not maintainable; that Cantonment Board, Peshawar, is not performing functions within the territorial jurisdiction of the Court, therefore, the petition against it is incompetent; that the petitioner acting mala fide has filed this petition in order to harass the respondent and with a view to adversely affect his business interests and reputation at the behest of Ch. NazirAhmad and Robina Nazir, his partners, who are in litigation with him due to business disputes existing between them. On merits it was asserted that the premises in question are institutions/clubs/auditoriums owned by Armed Forces and are not meant to be "cinemas" stricto senso, as these are also used for the purposes of training, briefing, and imparting military knowledge and skill to the Army and Air Force Personnel. These are also used for holding Qirat Competitions which functions are presided over even by head of the Army Services. It was added that these are located within the restricted area where neither any civic amenities are provided by any Cantonment Board nor such areas are under their control in any manner whatsoever. On these premises it was asserted that neither the provisions of Cantonments Act nor those contained in the Presidential Order are applicable. Learned counsel added that in view of the provision contained in Section 124 (3) of the Cantonments Act 1924 no licence for such cinemas/auditoriums is required to be obtained as these cinemas/auditoriums admittedly are the property of the Federal Government and the exhibitions are being held with the permission and under the control of the military authorities.

5. As regards the question of payment of entertainment duty the position taken by Mr. S.M. Zafar was that President's Order No. 13 of 1979 merely authorizes Cantonment Boards to collect entertainment duty, levied under West Pakistan Entertainment Duty Act 1958, if the duty is otherwise payable. He added that the military personnel have been exempted from payment of entertainment duty and as these cinemas and auditoriums are regimental/garrison cinemas to which only military personnel are admitted, these are neither required to recover nor to pay the entertainment duty. He referred to the report submitted by the Ministry of Defence in Writ Petition No. 4319 of 1983 (Khurshid Inamullah v. Cantonment Board etc.) Annexure R-3 to the written statement and relied particularly on paras. 3 and 4 thereof. These paras. read as under:-- "

3. The Institutes of the kind mentioned in the foregoing paragraph are not meant to be cinemas stricto-senso. They are used for the purpose of training, briefing, debriefing, lectures and for other purposes like showing movies to the personnel of the P.A.F. films which are meant to improve their professional capacity. It is true that when such institutes are not required for these purposes, they are also utilized for showing films to the P.A.F. personnel for entertainment purposes. Since it is primarily a welfare activity, civilian dependants and guests of the P.A.F. personnel are also admitted to avail this facility. The entire income accruing from the exhibition of such films is spent on the welfare of the troops. Keeping in view this general consideration, this Ministry is of the view that no duty need be collected nor to be payable either to the Provincial Government or to the Cantonment Boards, on payments made for admission to exhibition of cinematograph films in such institutes. 4.It is also pertiment to mention that the institutions of the kind subject matter of these instructions have been enjoying the exemption from the entertainment duty from time immemorial. This exemption was enjoyed prior to the partition. It continued to be so even after the partition. This position did not change when the various Provinces were amalgamated inUnit. It did not alter even when one unit was again broken up. In the view of this Ministry, President's Order XIII of 1979 does not have the effect of changing the position as explained above."

6. Learned counsel added that Service Institutes are of the view that the auditoriums being properties of the Federal Government are immune from Provincial tax leviable under the Entertainment Duty Act, 1958 (a Provincial Statute) and that President's Order 13 of 1979 does not have the effect of levying the duty. It was asserted that it was because of the aforenoted stand of the Defence Ministry and the Presidents of the Service Institutes that the Cantonment Boards have not been able to impose, levy and collect the entertainment duty from the cinemas/auditoriums and that the Cantonment Boards, being themselves not sure of the legality and validity of the imposition, have not ever invoked the powers to recover the duty otherwise vesting in them under the law.

7. Mr. S.M. Zafar referring to the documents attached with the written statement and the rejoinder submitted that the issues that really arise in the case are whether the duty is leviable and the licence is required by law to be obtained for the exhibition held with permission and under the control of Armed Forces in the auditoriums situated in the restricted area and belonging to Federal Government. It was canvassed that the controversy being raised by the Cantonment Board should have been sorted out by the functionaries of the Federal Government themselves or if the controversy exists between the functionaries of Federal Government and the Provincial Government then the same is to be resolved by making a reference to the Supreme Court under Article 184 of the Constitution and a petition under Article 199 by a citizen like the petitioner is incompetent. He argued that petition is in any case incompetent as the petitioner lacks necessary locus standi to maintain the same. It was submitted that the issues involved for their determination require presence of proper and necessary parties before the Court, and proper pleadings containing full facts and stand of proper parties but in this petition the most necessary parties, the Service Institutes which have granted the Licences or Leases for the auditoriums have been mala fide left out with a view to obtain verdict from the Court against them in their absence. Mr. S.M. Zafar cited various judgments in support of the plea that the petitioner is not an "aggrieved person" and that constitutional jurisdiction under Article 199 of the Constitution is not to be used for adjudicatory purpose as its principal function is to command and execute and not to inquire and adjudicate and therefore it was not the purpose of the writ to establish a legal right but to enforce one which has already been established. It will not lie for the purpose of preventing third parties from doing illegal acts or to forbid the doing of certain acts. (Corpus juris Secondum Vol. 55 Pages 85-86). Learned counsel submitted that the petitioner is demanding enquiry and adjudication with respect to the rights and obligations of Provincial Government or Cantonment Boards and the Service Institutes, he is not seeking enforcement of any legal right vesting or residing in him or compelling performance of duty in his favour and as such the proceedings in the form of writ would not be appropriate. Reliance was placed on Messrs Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income-tax Lahore Range, Lahore and 7 others (PLD 1978 SC 151), Anjuman Araian, Bhera v. Abdul Rashid and others (PLD 1982 SC 308), Abdul Haleem v. Additional District Judge and others (1987 MLD 2456), TheProvince of East Pakistan v. Kshiti Dhar Roy and others (PLD 1964 SC 636) and Masudul Hassan v. Khadim Hussain and another (PLD 1963 SC 203).

8. Syed Niaz Ali Shah, the learned Standing Counsel, submitted that the situation does not demand a reference under Article 184 of the Constitution as no dispute exists between the Provincial and the Federal Government on the subject. He added that if any Cantonment Board finds that civilians having no connection with the armed personnel are being admitted to the exhibitions being held in these auditoriums, these can take up the matter with the Service Institutes or may invoke the powers vesting in them under law but the petitioner in no case has the right to maintain a constitution petition as the question whether civilians are being admitted to the shows or not is a pure question of fact and this Court in exercise of constitutional jurisdiction cannot determine such a controverted question of fact.

9. Learned counsel for the petitioner in reply argued that the petitioner is an "Aggrieved Person" as the non-performance of the duty imposed by law is causing recurring financial loss to the petitioner and that in any case the petition falls within the category of public interest litigation and as such this Court should not refuse to enforce the law. Reliance was placed on People's Union for Democratic Rights and others v. Union of India and others (AIR 1982 Supreme Court 1473).

10. The plea that the petition falls within the category of public interest litigation' is without merit. In the very case cited (People's Union for Democratic Rights and others (supra) by the learned counesl, it was observed as under:-- "Public interest litigation is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed..... Public interest litigation is essentially a co operative or collaborative effort on the part of the petitioner, the State or public authority and the Court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them. The State or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights, constitutional as well as legal, to those who are in a socially and economically disadvantaged position, as the petitioner who brings the public interest litigation before the Court." In the instant case the petitioner seeks direction to recover the duty which according to him is leviable as due to failure to do that, the respondent is pocketing the full amount received by him from cinema whereas the petitioner is made to part with the amount of duty with the result that the petitioner has to face unequal competition as he is not able to screen better and expensive films and thereby he is suffering irreparable loss. This plea is premised on the assumption that the respondent is deriving financial gains unduly and the incomebasis factual or legal has been laid down in the petition for assuming that Ch Mushtaq Ahmad respondent is making that much money that he is in a position to adversely affect the business prospects of the petitioner. This Court obviously cannot act on the basis of assumptions. Be that as it may, the petitioner in no way seeks to ensure basic human rights, constitutional or legal to those who are in a socially and economically disadvantageous position. Moreover, the grievance made in the petition is also premised on the factual assertion that civilians not connected with the armed personnel, who are liable to pay Entertainment Duty are being admitted to the shows and the duty is being recovered from them but the same is not being paid to Cantonment Boards. This assertion was controverted by the contesting respondent. It is apparent that relief prayed for cannot be granted without determining the controverted questions of fact. These for their determination require holding of detailed factual enquiry. This Court in exercise of extraordinary jurisdiction ordinarily does not hold factual enquiries. Even the plea that the Cantonment Boards are being deprived of thousands of rupees daily and that exercise of the legal duty would secure public revenues does not entitle the petitioner to maintain the petition under Article

199. In Muhammad Younus v. Islamic Republic of Pakistan (PLD 1972 Lahore 847) Sardar Muhammad Iqbal, J., after examining judgments from foreign jurisdiction and of the Supreme Court observed:-- "A 'person aggrieved' must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand. In order that a person is an 'aggrieved person' within the meaning of Article 98 he may not have right in strict jurisdic sense but he must show that he had a "personal interest in the performance of the legal duty" and that the non-performance of the duty is to result in the loss of some "personal benefit or advantage or the curtailment of a privilege". Unless he shows that he will lose "some benefit or advantage which he would have gained if the order was in accordance with law" he cannot be an aggrieved person. A tax-payer has no personal interest. It has been held that a tax-payer has a "personal interest" in the performance of the legal duty by all the public functionaries in all cases. It has also never been held that if the order by a public authority is not in accordance with law or results into "loss of some personal benefit or advantage" to a tax payer? A tax-payer cannot maintain a petition pro bono publico." Again in Associated Cement Companies Ltd. v. Pakistan (supra) it was observed: "It is true that under Article 98, a High Court had the jurisdiction to grant to an 'aggrieved party' relief in a proper case provided it could successfully show that there was 'no other adequate remedy, provided to him by law. Now in order to be an 'aggrieved party', within the meaning of sub-Article (2) of Article 98, it would be imperative for a party to show that any of his proprietary or personal right, as recognised by the laws of the country, has been invaded or denied to him. 'Right' and 'remedy' are no doubt complementary concepts, because right withoutremedy would be meaning less just as it would be inconceivable to think of a remedy without a corresponding right. In other words a right', be it tangible or intangible, such as the right of a person to enjoy his property or to remain secure in his reputation, clearly postulates something of value to a person for the protection or the realisation of which remedy is provided in every civilised legal system. Inevitably, therefore, if a person is unable to show that any of his right as recognised by law has been invaded or denied to him then he would have no cause of action to seek any relief, for evidently he cannot claim to be 'aggrieved"." The observation made in the case of Anjuman Araian Bhera (Supra) reads:-- "But this grievance was shared by the appellant alongwith numerous others and, therefore, his capacity, while agitating against the orders of transfer, was of a person raising a question pro bono publico. However, this Court has now held in several decisions that a party acting pro bono publico had no locus standi to call in question the transfer of property in favour of a third party unless he has a personal interest in the matter. We may add that person can be deemed to be "aggrieved" if he has some interest in the corpus of the party, to which the law attaches some sanctity. It is only if the appellant can demonstrate some interest in the property, to which some legal sanctity was attached, can he be considered as an aggrieved party." It will, therefore, be seen that on the bare plea of financial propriety i.c. that compliance of law by authorities will augment financial resources of the Boards for the benefit of the general public fail to confer necessary locus standi on the petitioner to invoke constitutional jurisdiction of the Court. Be that as it may, the petition is liable to be dismissed on the score that the direction prayed for cannot be issued in the absence of necessary parties i.e. the Service Institutes which are managing these auditoriums and which have granted the licences or leases to the private respondents. It will be seen that in the absence of necessary parties and proper pleadings and necessary material, jurisdiction of this Court cannot be invoked. Some of these institutes, as well as Cantonment Board Peshawar are situated outside the territorial jurisdiction of this Court. As against them no order or direction can be passed by this Court. The failure to implead Service Institutes appears to be deliberate. It was suggested that non-impleading of these institutes is not only deliberate but also mala fide with a view to obtaining order adverse to them in their absence as on the objection being raised, no step was taken to implead these institutes. These institutes are the real contesting parties as a lessee or licensee has interest till the expiry of the lease period. It was explained that petitioner so long as he himself was the lessee of the Auditorium at Kamra, did not come up with the plea that duty was payable, but after the expiry of his lease with a view to causing financial loss to the respondent (Ch. Mushtaq Ahmad) has filed this petition at the behest of the other two private respondents. The move so made being mala fide it was emphasised should not be allowed to succeed. These submissions in the circumstances are not devoid of merit. In any case the direction/order sought in all fairness should not be made in the absence of the necessary parties. For the reasons given above, this petition is bound to fail. The same is here by dismissed. The petitioner will also pay the costs of respondent No. 8 (Ch. Mushtaq Ahmad). M.B.A./M-1395/L. Writ refused. ***