P L D 1976 Karachi 1219 (PLP)

Mir KHUDA BAKHSH MARRI, J.-This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against an order of District Magistrate, Sukkur, dated 14-2-1974, whereby the petitioner's application for No-Objection Certificate to build a Cinema was cancelled on the orders of Home Secretary and Chairman, Provincial Cinema. Committee.

2. The short point involved in this petition is, whether District Magistrate, Sukkur could cancel a No-Objection Certificate earlier issued to the petitioner without any notice and without affording any opportunity of being heard to the petitioner ? The petitioner being owner of property bearing C. S. No. F-12, 12 A B C 12 to 17 applied for No-Objection Certificate to District Magistrate, Sukkur to build. a Cinema which was, granted in the year 1972 for one year. As he failed to build a Cinema within stipulated period the No-Objection Certificate expired, he however, made a fresh application and a fresh No-Objection Certificate was granted to him on 10-12-1973 for period of one year. That when the construction work was in progress he was served with impugned order dated 14-2-1974 cancelling his No-Objection Certificate without prior show-cause notice or any reason being assigned. He was, therefore, condemned unheard.

3. Mr. Suleman Memon, Additional Advocate-General submitted that no construction, whatsoever, has been started by the petitioner. This fact was supported by counter-affidavit and further submitted that grant of mere No-Objection Certificate does not give any vested right to the petitioner, particularly so, when he has not started any construction work and that respondent was within its rights to cancel the No-Objection Certificate and this was done, according to him, on the basis of a report of the Barrage Authority that the construction of the Cinema at the site is dangerous to the safety of the Sukkur Barage installations. He has cited no case-law in support of his arguments.

4. For construction of a Cinema, No-Objection Certificate is granted by the District Magistrate under rule 5 as amended by West Pakistan Cinematograph Rules, 1962. The rule is as under:- "5.-(1) Any person who intends to obtain an annual licence shall make an application to the District Magistrate for the grant of a "No Objection Certificate" and every such application shall be accompanied by a fee of rupees one hundred, which shall not be refunded, whether the licence is granted or not, and a plan of the proposed site drawn to scale which shall clearly indicate the surrounding roads and buildings, including any schools, hospitals and mosques situated within a distance of 200 yards of the proposed site : Provided that it shall not be necessary to obtain a "No-Objection Certificate" in the case of an application for renewal of an annual licence. (2) The District Magistrate shall take into consideration any objection and- (a) in the case of an application pertaining to the urban areas of` Karachi and Hyderabad, make recommendation to the Secretary to Government of Sind, Home Department whether "No-Objection Certificate" should be granted or not," ; and (b) in other cases, be may at his discretion, grant a "No-Objection Certificate" or refuse to grant the same ; provided that where the District Magistrate refuses to grant a "No-Objection Certificate" the applicant may, within thirty days of the communication of such decision to him, appeal against the decision to the Secretary to Government of Sind Home Department, whose decision shall be final. (3) On consideration of the report of the District Magistrate made under the provisions of clause (a) of sub-rule (2), the Secretary to Government of Sind Home Department clay grant a "No-Objection Certificate" or refuse to grant the same Provided that where the Secretary to Government of Sind Home Department refuses to grant a No-Objection Certificate the applicant may, within 30 days of the communication of such decision to him, apply to him for review of his decision and the orders passed thereon in review shall be final ; and (4) The "No-Objection Certificate" shall be in Form `A', shall be valid for a period of one year from the date of issue, shall not be transferable, and shall not in any way affect the discretion of the Licensing authority to refuse or grant a licence under rule 6(1). Counsel for the petitioner submitted that, admittedly, the town of Sukkur does not come within the purview of amended rule 5, (sub-rule 2(a) by which in Urban areas of Karachi and Hyderabad it is the Secretary, Home Department who has the power to grant or reject No-Objection Certificate. But it is the District Magistrate, Sukkur who is empowered in this case for grant of No-Objection Certificate, which in fact, he did grant, therefore, the power of refusal of the certificate or its cancellation also vests in the District Magistrate but in this case he has not himself cancelled the No-Objection Certificate but on the directions of the Home Secretary which he could not d:) as he has not exercised his own discretion fairly and properly. The order of cancellation of No-Objection Certificate is as under :- "No. JB/945 Sukkur ; dt. 14/2 To, Mr. Muhammad Yousif Qureshi Sub : Construction of Cinema on Plot CS No 12-A, 12-B and 12-C, Ward E, Bunder Road Sukkur- Application from Mr. Muhammad Yousif Qureshi. The Home Secretary and Chairman, Provincial Cinema Committee has ordered that no permission can be granted to you to build Cinema on the above proposed plot. The application for No-Objection therefore stands cancelled. This is for your information. (Sd.) for District Magistrate, Sukkur 14-2-1974." Counsel for the petitioner relied on "The District Magistrate, Lahore and another v. Faqir Sayyed Fayyazuddin and another (P L D 1965 S C 371), wherein although it was held that the grant of a No-Objection Certificate will, in no way, affect the discretion of a licensing authority to refuse or grant the licence, nevertheless a licensing authority cannot act either fancifully or arbitrarily, for the discretion vested under the Act must like any other discretion be exercised reasonably and upon just and proper grounds. Where the revocation of the "No Objection" Certificate has been made in accordance with the directions of Government on the recommendation of the Cinema Committee for sufficiently weigthy reasons and there was no suggestion either that the Cinema Committee had been actuated by ill-will and the District Magistrate acted under the control of the appropriate Government he was bound to carry out the orders of the Government and it could not be said that he acted illegally or without lawful authority. It may be noted that it was only in 1962 when rules with regard to No-Objection Certificate were introduced and later on amended and no rule existed as such in Cinematograph Rules in the year 1961 to which the above judgment related. It was held that the licensing authority must not act either fancifully or arbitrarily in exercise of discretion vested in him under the Act. He must exercise the discretion reasonably upon just and proper grounds. We see sufficient force in the arguments of learned counsel for the petitioner. It was the District Magistrate and not the t-tome Secretary, Government of Sind who has power under section 5(2)(b) to grant or refuse the No-Objection Certificate with regard to town of Sukkur. In the present case he has not exercised the discretion himself but has acted on directions of Home Secretary. It may be noted that mere grant of No-Objection Certificate is not equivalent to grant of licence because an applicant has to undergo for grant of licence some other formalities as well under the rules. Be that as it may, we are of the opinion that before cancelling the No-Objection Certificate the District Magistrate was bound to hear the petitioner, as this was not done we set aside the impugned order dated 14-2-1974 and direct the District Magistrate to decide the matter after issuing notice and hearing the parties afresh but make no orders as to costs. Order set aside.