1984 PLP 3209 (CLC)

(On appeal from the judgment of the High Court, dated 28th March, 1981 in Writ Petition No. 62 of 1980). (a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑ ‑‑‑ S. 42‑Cinematograph Act (II of 1918)‑‑Writ‑Principles of res-judicata--High Court declaring No Objection Certificate and licence issued under Cinematograph Act, 1918 as void‑Such findings, held, not res judicata in fresh writ proceedings as they related to different periods of time‑Civil Procedure Code (V of 1908), S. 11.‑[Res judicata]. (b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑ ‑‑‑ Ss. 44 & 42‑Cinematograph Act (Il of 1918), S. 8‑Fresh plea‑Petitioner contending before Supreme Court that impugned order was not a Government order‑Such contention not raised in writ Petition‑Plea, held, could not be allowed to be taken for first time in Supreme Court. (c) Cinematograph Act (II of 1918)‑ ‑‑‑ S. 8‑General Clauses Act (X of 1897), S. 21‑Government autho rised under S. 8 of Cinematograph Act, 1918 to prescribe population formulae, held, competent to change or modify same‑Authority competent to make an order, held further, competent to regulate its application and operation‑[Interpretation of Statutes]. ‑‑ S. 8‑Azad Jammu and Kashmir Cinematograph Rules, 1972, rr. 2(xiv), 3 & 4‑General Clauses Act (X of 1897), S. 3(29)‑Noti fication‑A law‑Notification issued by Government under rule mak ing power conferred by S. 8, Cinematograph Act, 1918, held, was in nature of a law and fell within terms of Azad Jammu & Kashmir laws as defined in S. 3(29), General Clauses Act, 1.897. Muhammad Suleman etc. v. Abdul Ghani P L D 1978 S C 190 ; New Kissan Transport Co. Ltd., Lyallpur v. Messrs Sher Brothers Ltd. Lyallpur and others P L D 1962 Lah. 863 and Montgomery Flour and General Mills Ltd. v. Director, Food Purchases P L D 1957 Lah. 914 distinguished. Edward Mills Co. Ltd. v. State of Ajmeer A I R 1955 S C (Ind.) 25 ref. (e) Azad Jammu and Kashmir Cinematograph Rules, 1972‑ ‑‑ Rr. 2(xiv), 3 & 4‑Term open air"‑Meaning‑Term "open air", held, stands defined in r. 2(xiv) and refers to condition of auditorium and not to nature of licence‑Nature of licence issued under r. 4 is either annual or temporary‑A licence marked "Annual (open air)", held, was not temporary.‑[Words and phrases]. (f ) Azad Jammu and Kashmir Cinematograph Rules, 1972‑ ‑‑ Commissioner under Rules, held, competent to issue "No Objection Certificate"‑Any procedural defect, held, was merely an irregularity curable at any time. Bharat Bhushan v. Cinema and City Magistrate etc. A I R 1956 All. 99 fol. SHER ZAMAN CHAUDHRY, J.‑Through this appeal by leave has been challenged the validity of the judgment of the High Court, passed on 28th March, 1982 whereby while accepting the writ petition of the respondents the orders under challenge in the writ petition passed in favour of appel lants were declared by a learned Single Judge in the High Court as violative of law and inoperative. The facts giving rise to the controversy briefly stated are; that the litigation between the parties originally started when a no objection certificate was issued by the District Magistrate Mirpur in 1975 in favour of minor sons of the appellants. On a writ petition filed by Riaz Ahmad respondent and others, the no objection certificate and the licence so issued were declared void by the learned High Court vide its judgment announced on 7th June, 1977. On appeal filed by Riaz Ahmad and other petitioners before the Supreme Court the case was remanded back to the High Court to give its findings also on the points :‑ (a) Whether in view of the Government Orders, dated 28th February, 1975 and 26th March, 1971 prohibiting grant of exhibition licence for the new cinema at Mirpur, no licence for exhibition of a new cinema could be granted? (b) Whether the grant of a new licence at Mirpur was in contravention of the provisions of the notification, dated 4th February, 1976 prescribing 25,000 population as a unit for the grant of exhibition licence for one cinema in a town or municipality?

2. Amin Beg appellant and another, in pursuance of a Government Order, dated 23rd June, 1977 whereby the limitation on construction of a new cinema house having been removed, were again issued N. O. C. by the Commissioner on 28th June, 1977 and a licence by the District Magistrate on 2nd July, 1977. So, a fresh writ petition to challenge the above listed orders was filed in the High Court by Tariq Ismail and others. This new petition and the one remanded by the Supreme Court were heard together by the learned High Court. Since the bar placed on the construction of a new cinema house had been removed by a Government Order, dated ?.3rd June, 1977 the first point formulated by the Supreme Court for consideration was decided against the petitioners now respondents in this appeal. On second point formulated for determination by the High Court the learned Single Judge in the High Court found that the restriction of 25,000 popula tion formula though within the competence of the Government to relax it, having not been relaxed, was operative. There already being 3 cinemas in the town and population having been found less than 75,000 the orders under challenge in the writ petitions were declared illegal by the High Court vide its judgment, dated 2nd September, 1980.

3. The appellants then filed petitions for leave to appeal in the Supreme Court. In view of the findings recorded by the High Court that the Government had the authority to relax the condition of 25,000 population formula, 'they also moved the Government for exemption. A Government Order was then issued to that effect. In pursuance of this Government Order no objection certificate and annual (open air) licence were issued in favour of the appellants by the Commissioner and the District Magistrate respectively. The appellants thereafter moved an application in the Supreme Court to the effect that as fresh `no objection certificate` and `licence' in their favour have been issued. they no longer wished to pursue their petitions for leave to appeal ; as such these were dismissed for non‑prosecution by the Supreme Court vide its order, dated 20th December, 1980.

4. The respondents feeling aggrieved, through a writ petition filed on 17th December, 1980 challenged the legality of the orders, dated 9th December, 1980, 10th October, 1980 and 11th December, 1980 issued by the Secretary Revenue, Commissioner and District Magistrate respectively. While this writ petition of the respondents was still awaiting decision, the District Magistrate Mirpur on an application moved' by the appellants and on consideration of the reports made by the S. E., P. W. D. Mirpur and the Electrical Inspector Muzaffarabad, issued an annual licence on 26th May, 1981 in favour of the appellants. This order was also challenged through the amended writ petition. The points canvassed before the High Court en behalf of the respondents during the arguments, as, appears from the perusal of the impugned judgment, were :‑ (a) that in view of the findings on the point of population recorded by the High Court in a previous writ petition decided on 2nd September, 1980 respondents Nos. 3 to 5 in the present writ peti tion, were estopped to issue the impugned orders. (b) that the population within the municipal limits ‑of Mirpur town being less than 25,000 the orders under challenge were violative to the rules and as such were void.

5. As the no objection certificate and the licence declared void in a previous writ petition and those now under challenge related to different a periods of time, the principle of res judicata, according to the findings of the learned Judge, was not attracted in the present case. On the point of population, the learned Judge in the High Court, however, found that there existed clear and convincing evidence on record that the population of Mirpur town within its municipal limits was below than 75,

000. The orders under challenge were declared violative to law by the learned High Court vide its judgment, dated 28th March, 1982.

6. It is this judgment of the High Court the validity of which has now been challenged on the grounds :‑ (a) that the condition of 25,000 population envisaged under the Government Order No. 511‑571/SI/76, dated 4th February, 1976 had been relaxed vide Government Order . This aspect of the case having not even been considered by the learned Single Judge in the High Court, the impugned judgment could not, therefore, be sustained ; (b) that there has been misreading and non‑reading of evidence. Besides, the appraisal of evidence by the learned Judge in the High Court was conducted in violation to the settled norms of apprecia tion of evidence. The finding that population was less than 75,000 could not, therefore, be maintained.

7. Controverting the arguments advanced on behalf of the appellants Mr. Muhammad Taj Chaudhry, on the contrary, submitted that the exemption order passed in favour of the appellants could not be regarded as a Government Order. Assuming that it was a Government order it still being a subordinate legislation could not, argued the learned Advocate, put an end to. the express statutory requirements. The exemption order, according to him, having been passed without lawful authority, was of no legal consequence. On the point of population it was argued that there existed clear and convincing evidence on record to the effect that the popula tion was less than 75,

000. The finding arrived at by the learned High Court on the point was perfectly valid. The impugned judgment was, therefore, submitted the learned counsel, perfectly in accordance with law and open to no‑ exception. Reliance was placed on Muhammad Suleman etc. v. Abdul Ghani (PLD 1978SC190), New Kissan Transport Company Ltd.; Lyal1pur v. Messrs Sher Brothers Ltd. Lyallpur and others (P L D 1962 Lah. 863) and Montgomery Flour and General Mills Ltd. v. Director Food Purchases (P L D 1957 Lah.914).

8. The points in view of the submissions made by the learned Advocates for the parties, therefore, nova requiring determination are :‑ (a) Whether the exemption order could be regarded as a Government Order and then if the Government was competent to pass it ? (b) Whether no objection certificate and licence under challenge were issued in accordance with the requirements of relevant rules ?

9. Adverting to the first point formulated for consideration it may be stated that the respondents in their writ petition have impleaded the Govern ment as one of the respondents. The nature of the Order as being a Government order has not been challenged by them. Only the competency of the Government to pass the order and the legality of N. O. C. and the licence issued in pursuance of that Government order has been challenged by the respondents through paras. 5 and 6 listed in their writ petition. So, this plea now for the first time in the Supreme Court cannot be allowed to be taken. Besides, we have carefully examined the Government file (it was summoned by the High Court) available on the record. All the formalities required for passing such order appear to have been taken. Opinion of the District Magistrate was sought in the matter. In his detailed report a case for relaxing the population formula requirement is found to have been made out by the District Magistrate. After the neces sary processing it received the presidential assent. The order was then sent to the Government. Printing Press to be published in the official Gazette. The copies of the order were also sent to other various Government Depart ments. In this view of the matter the order has all the necessary charac teristics of a Government order. The objection now taken by the learned Advocate for the respondents in this respect, in our view, is misconceived.

10. The point next needing resolution is whether the Government was competent to pass the order. The point although specifically taken by the respondents in their writ petition yet as appears from the perusal of the impugned judgment was neither argued by the learned Advocate for the respondents nor was it attended to by the learned Single Judge in the High Court. The writ petition was disposed of and all the impugned orders were struck down by the learned Single Judge on the sole ground that the population within the municipal limits of Mirpur town was less than 75,000.

11. The point was, however, argued before this Court at a considerable length. To determine the legality of the Government order or for that matter the competency of the Government, the order in dispute is to be con sidered with reference to the first Government order fixing the population limits in order to determine the numbers of static cinemas in a city or a town. The Government vide its order, dated 4th February, 1976 prescribed the population formula. The authority for passing such orders is made available to the Government under rule 8 of the Cinematograph Act. Then the question now, therefore, needing examination is as to whether an authority or a forum having the competency to impose certain restriction has also the powers to remove or modify that' restriction. The answer obviously is in the affirmative. If the Government under a certain provision bad the power to pass the first order, then there seems no justifiable reason as to why it could not pass a subsequent order under the same provision. Looking at the proposition from another angle it is found that if through an order or notification certificate restrictions or limitations are imposed by the Government ; its application and operation can also be validly modified, regulated or exempted from by the Government through a subsequent order or notification. Such powers apart from section 8 of Cinematograph Act are also available under section 21 of the General Clauses Act.

12. The legality of the Government order providing the exemption was challenged by the learned Advocate for the respondents also on the ground that if a limitation or restriction has been provided in a particular form the withdrawal of it must also be in the same form. We have carefully gone through the report of the case titled Muhammad Suleman etc. v. Abdul Ghani (P L D 1978 S C 190), referred to by the learned counsel. We are in agreement with the principle enunciated by the learned Judges in the Supreme Court. But then the question is as to how does it help the respondents in the present case. The argument is misconceived for the reasons that the notification, placing limitation made by the Government in exercise of the rule making powers vested in it under section 8 of the Cinematograph Act, was in the nature of law. While considering the proposition as to whether such a noti fication was included within the term `law', the Supreme Court of India in Edword Mills Co. Ltd. v. State of Ajmeer (A I R 1955 S C (India) 25) held that term `notification' was included in `Indian Law' as defincd in section 3 subsection (29) of the General Clauses Act. Similarly, the Government order now under con sideration in the instant case could also be regarded as included in term `law' as the Government while passing it (though without specifically men tioning section 8), as already observed in the earlier part of this judgment, was acting under the same provision, which was resorted to while passing the first order. Mere non‑mentioning of the relevant provisions would not make any difference. The word `Indian Law' (in the present case Azad Kashmir or Pakistani Laws) in section 3 subsection (29) of the General Clauses Act has been defined as "shall mean any act, Ordinance, regulation, rule, order, by law, or other instruments ."The order in this clause referred to is what may be called the species of delegated legislation, such for instance as were passed by the Government or the District Magistrate etc. So the difference between the two terminologies (notification, order) as merely a difference of description and not of substance or quality, in the circumstances of the present case. The argument advanced by Mr. Muhammad Asiam Khan, the learned Advocate for the appellants, that the Government order relaxing the restriction of population limits in favour of Almughal Cinema was a lawful order has a lot of force and is found to be valid. We, therefore, are in agreement with him on the point. The plea on the proposition taken on behalf of the respondents is. therefore, rejected. We have carefully gone through the reports of other cases referred to by the learned Advocate for the respondents and find that neither the facts nor the principle evolved in these cases have any relevancy to the .,proposition now under consideration.

13. The next point needing resolution is as to whether the no objection certificate and the licence issued in favour of the appellants were violative to the rules framed under the Cinematograph Act. As already observed in the earlier part of this judgment the orders were declared void by the learned High Court on the simple ground that the population within the municipal limits of Mirpur town was less than 75,000 and as such `no objection certificate' and the `licence' for the establishment of fourth static cinema could not be issued in favour of the appellants. The arguments on behalf of the respondents, as appears from the perusal of the impugned judgment, were also addressed only on the point of population. We however, allowed the arguments on an enlarged scope. The contention of the learned Advocate for the respondents is that no objection certificate and the licence were violative to the provisions of other rules as well, e. g. sections 4 and 5 of the Azad Jammu and Kashmir Cinematograph Rules, 1972. It was also urged that licence issued in favour of the appellants by the District Magistrate on 11th February, 1980 being open air licence was a temporary licence. As, according to the learned Advocate, no open air licence is envisaged under the rules, no objection certificate and the licence under challenge were, therefore, issued in violation of the rules. Besides, temporary licence, according to the learned Advocate, could only be issued for a period of 3 months. The orders were, therefore, illegal on this count as well. We have given our earnest thought to the points raised and have also carefully gone through the impugned judgment. The learned Single Judge in the High Court, from the perusal of the impugned judgment, appears to be of the view that open air licence was a temporary licence. The arguments advanced by the learned Advocate for the respondents and the view held by the learned Judge in the High Court are based on a mis taken assumption of the legal position. The term `open air' refers to the condition of the auditorium and most certainly not to the nature of a licence. In section 2, Clause XIV of Azad Jammu and Kashmir Cinematograph Rules, 1972 the term `open air' has been defined as open air cinema' means a building which is permanently equipped for cinematograph exhibition but whose auditorium is partly or wholly open to the sky'. Under section 4 of these rules nature of licence is described as annual or temporary. We have carefully examined the licence in question, the copy of which ha also been placed on the record. It is clearly marked as annual lope air). So, the whole argument has been based on a mistaken hypothesis. Besides, if there was any defect in it the licence issued on 25th June, 1981 which is also under challenge, suffers from no such defect.

14. The no objection certificate and the licence were issued in pursuance of the Government order and on a detailed report based on an inquiry made by the District Magistrate. The arguments on this point are also found to be without any force. The Commissioner under rules was competent to issue no objection certificate and the District Magistrate to issue licence. Assuming that there was any procedural defect it was merely an irregularity curable at any time. The proposition came under considera tion in Bharat Bhushan v. Cinema and City Magistrate etc. (A I R 1956 All. 99). As appears from the report of that case, under the following circumstances ; a cinema licence issued in pursuance of Government order was signed by the Cinema Magistrate but it did not bear the signatures of the District Magist rate. The illegality of the licence was, therefore, challenged. While attending to the proposition Mr. Agarwala, J. observed :‑ If there was an irregularity in issuing of the licence that can be cured at any time by the District Magistrate. We are, therefore, of the view that the no objection certificate and the licence under challenge were lawfully issued and suffered from no legal infirmity. As the appeal . can be disposed of on the points already deter mined we do not think it necessary to determine the merits of the remaining points with regard to the population. For the foregoing reasons we set aside the impugned judgment and find that the orders under challenge issued in favour of the appellants were perfectly valid and were issued with lawful authority. M. B. A. . Appeal accepted,