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Petitioner: MESSRS EVERDAY PICTURES LTD. VS Respondent: GOVERNMENT OF PAKISTAN AND 3 Other
Court Name: Sindh High Court Judge(s): Fakhruddin G. Ibrahim, Ajmal Mian Title: MESSRS EVERDAY PICTURES LTD. vs GOVERNMENT OF PAKISTAN AND 3 Other Case No.: Constitutional Petition No. D-355 of 1978 Date of Judgment:1978-10-03 Reported As: PLD 1979 Karachi 155 Result: Petition allowed
JUDGMENT
JUDGMENT AIMAL MIAN, J.-This Constitutional Petition challenges . The order dated 11-8-1977 and the order contained in a notification dated 9-1-1978 pasted' by the respondents Nos. 3 and 1 respectively. The facts giving rise to this petition, as disclosed in the petition, are that Messrs Moghul Film Corporation, Lahore applied for certification of a film named as "Begam Jan" (hereinafter referred to as the film) under section 4 of the Censorship of Films Act, 1963 (hereinafter referred to as the Act). In respect whereof the respondent No. 2 granted a certificate dated 16-3-1977 certifying that the film was fit for public exhibition (Annexure A to the Petition). It has been asserted that after the above certification Messrs Moghul Films Corp. Sold the rights of the exhibition and distribution of the film to Messrs Rabia Films and Evernew Studios, Multan Road, Lahore. It has also been averred that the petitioner under an agreement dated 10-7-1977 entered into between the petitioner and Messrs Rabia Films acquired the right of sole distributorship of the film for the purpose of exhibition, exploitation and distribution for the entire territories of Sind and Baluchistan, including the territory of Karachi for the period of 7 years (Annexuro B to the petitioner). It has been further asserted that on or about 21-7-1977 when the petitioner was planning to release the film at Hyderabad for screening the respondent No. 3 served an order of even date (Annexure C to the Petition) ran the three cinema houses, namely, Firdous, Chiragh Mahal and Capri, Hyderabad in the exercise of the power under subsection (2) of section 5 of the Act prohibiting the screening of the film and suspending the above censor certificate. It has also been asserted that the petitioner made a representation against the aforesaid ex parte order of the respondent No. 3, to the Martial Law authorities. Whereupon a committee comprising of the Martial Law authorities, S. D. M. City Hyderabad, and 5 Pathan leaders
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of Hyderabad witnessed the aforesaid film and found nothing objectionable in the film. In consequence whereof the aforesaid order dated 21..7-1977 was recalled by the respondent No. 3 through his order dated 26-7-1977 (Annexure D to the petition). It has been further averred that there-- after in the month of August the film was released for exhibition at Firdous Cinema, Hyderabad and Sabeen Cinema, Latifabad, from 2-8-1977 to 12-8-1977 and 4-8-1977 to 10-8-1977 respectively. It has also been asserted that neither there; was any law and order situation nor anybody objected to the exhibition of the film. However, the exhibition of the above film was discontinued on 13-8-1977 as another order dated 11-8-1977 passed by the respondent No. 3 was served on the above cinemas on the aforesaid date (Annexure G to the petition). Thereafter the petitioner on or about 9-1-1978 came to know about another order passed by the respondent No. 1 contained in a notification dated 9-1-1978, whereby it was ordered that the film shall be deemed to be uncertified film in respect of the following areas (1) Peshawar District, N: W. F. P. (2) Mardan District, N.-W. F. P. (3) Province of Sind. The petitioner has challenged the above orders through this Petition as being illegal, ultra vires and without jurisdiction. 2. Though the respondents Nos. 3 and 4 were represented by the Advocate-General of Sind's office through Mr. A. H. Farooqui, Advocate but have not filed any counter-affidavit to the petition. However, the respondents Nos. 1 and 2 have filed a counter-affidavit in which it has been asserted that this D. M. Peshawar, D. M. Mardan, D. M., Karachi East, Deputy Commis--sioner, Karachi West and D. M., Hyderabad on receiving complaints/reports through the Martial Law authorities and from the public in general being of the opinion that the film was highly derogatory to Pathan's culture and was about to create class hatred and law and order situation, had suspended the censor certificate of the film. It has also been asserted that the copies of the above orders were forwarded to the respondent No. 1 which had also received a communication from the Government of N.-W. F P. Drawing its attention to the fact that the film was bound to create hatred among the Pathans and non-Pathans and should be banned and therefore, the respon--dent No. 1 directed re- examination of the film and called for a complete censor report from the respondent No. 2. The film was re-examined by the Board on 15-10-1977 and a report in respect thereof was submitted to the respondent No. 1. Whereupon the impugned order contained in the notifica--tion dated 9-1-1978 was passed. It has also been asserted that the petitioner has no locus standi to challenge the impugned order as the petitioner was to act merely as an agent of Messrs Rabia Films and was accountable to the said firm. 3. The learned counsel for the petitioner Mr. Saiduzzaman Siddiqui has contended that, as the impugned orders have been passed in violation of the; Act and the Rules and also in disregard of the rule of natural justice, the same are liable to be set aside. On the other hand the learned counsel for the respondents Nos. 1 and 2 Mr. Said A. Shaikh has urged that the petitioner has no locus standl to. File the above petition and that under section 5 of the Act read with rule 22 of the Censorship of Films Rules 1963 (hereinafter referred to as the Rules) the petitioner was not entitled to any hearing and. Therefore. Is cannot be urged that there has been any violation of the rule of audi alteram parten. 4. It may be advantageous to reproduce hereinbelow section 5 of the Act and rule 22 of the Rules, which read as follows "5.-(1) Notwithstanding anything contained in subsection (3) of section 4, an authority may- (a) before a certified film is publicly exhibited within its local areas, require it to be exhibited before such authority; and
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(b) if it is of opinion that the film should not be publicly exhibited within its local area, by order, suspend, pending the orders of the Central Government under subsection (4), the certificate in respect of that film granted by any other authority. (2) If a District Magistrate is of the opinion that a certified film should not be publicly exhibited within his district, . He may, by order, suspend, pending the order of Central Government under sub- -section (4~ the certification in respect of that film granted by an authority. (3) A certified film shall, during the period of suspension of its certificate under subsection (1) or subsection (2) be deemed to be an uncertified film in respect of the local area or district within the jurisdiction of the authority or District Magistrate making the order of suspension. (4) A copy of any order of suspension made under subsection (1), or subsection (2), together with a statement of the reasons therefor, shall forthwith be forwarded to the Central Government by the authority or the District Magistrate making the order, and the Central Government may either discharge the order, or, by notification in the official Gazette, direct that the film shall be deemed to be an uncertified film in respect of a Province or such area or areas as may be specified in the notification. (5) Where, on receipt of the reference under subsection (4), or of its own motion, the Central Government is of the opinion that a certified film should not be publicly exhibited in Pakistan, it may, by notification in the official Gazette, direct that such film shall be deemed to be an uncertified film in respect of the whole of Pakistan." "Rule 22. Re-examination of certified films.-(1) If, in the case of a certified film, an order of suspension is received from a District Magistrate under subsection (4) of section 5, or a representation is made by a member of the Board or an individual or an association or group of individuals, it shall, at the direction of the Central Government, be examined by the Chairman and if, he considers it desirable, shall be laid before the Board for consideration. (2) Where the Board decides that the film be re-examined or where the Central Government directs the Board to re-examine the film, the Secretary shall arrange for the re-examination of the film by the Board as soon as practicable Provided that no examination fee or screening fee shall be charged in respect of a film so re- examined. (3) The original applicant for the examination of the film or the person to whom the rights of ownership or distribution in the film have passed shall, on receiving a written notice from the Secretary, arrange to deliver a print of the certified film within such time as may be specified in the notice for re-examination of the film by the Board. (4) The certificate of the film shall be liable to cancellation if its print is not supplied within the period so specified. (5) After the examination of the film, the Secretary shall forward the opinion of the Board to the Central Government, who may pass such orders thereon as it deems fit. (6) No order under this rule shall be made to the prejudice of the applicant unless he has had an opportunity of representing his case to the Central Government." A perusal of the above-quoted section shows that under subsection (1), an authority (as defined in section 2(a) of the Act, i.e. An authority constituted under section (3), may by an order suspend the exhibition of a film within its local area pending the orders of the Central Government under subsection (4) of the above section by suspending the certificate. Whereas under subsection (2) of the above section 5 of the Act a District Magistrate has been empowered to suspend by an order the certificate in respect of the film pending the others of the Central Government. Further--more subsection (3), provides that a certified film shall during the period of suspension of the certificate under subsection (1), or subsection (2), be deemed to be uncertified in respect of the local area or district within the jurisdiction of the authority or the District Magistrate making the order. Subsection
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(4), enjoins that copy of the above order is to be forwarded together with the statement of reasons thereof to the Central Government by the authority or the District Magistrate making the order and the Central Government may either discharge the order or by notification in the official Gazette direct that the film shall be deemed to be uncertified film in respect of a province or such area or areas as may be specified in the notification. The above Rule provides the steps which are to be taken after receiving suspension order from an authority or a District Magistrate referred to hereinabove. It contemplates inter alia a direction to the original applicant to the distributor to deliver a print of the certified film, to-examination the film by the Censor Board, submission of the report by the Board to e Central Government and thereafter passing of an order thereon by the central Government as it deems fit. Sub-clause (6) of the above Rule provides that no order under this rule shall be made to the prejudice of the applicant unless he has had an opportunity of representing his case to the central Government. 5.-(a) In support of his first contention that the petitioner has no locus standi the learned counsel for respondents Nos. 1 and 2. Mr. Said A. Shaikh has contended that the petitioner cannot be an aggrieved person within e meaning of Article 199 of the Constitution, as according to the petitioner's own showing its status is of an agent and not that of an owner or of an assignee of the film. In furtherance of the above contention Mr. Shaikh has referred to clause (4) of the agreement (Annexure B to the petition) in which it has been provided that as a remuneration for the exhibition and distribution of the above picture the petitioner as the distri--butor shall be entitled to a fixed commission of 15 % out of the net income of the picture throughout the validity of the agreement. The learned counsel has also drawn our attention to clause (6) of the agreement which imposes an obligation on the petitioner as a distributor to submit a statement of account along with a statement of business as on the last date of the particular month together with the remittance of the business share and the the income after adjusting its agreed commission. On the other hand, the learned counsel for the petitioner Mr. Saiduzzaman Siddiqui has contended at the respondent No. 3's aforesaid order dated 26-7-1977 recalling his earlier order dated 21-7-1977 was passed in consequence of representation made by the petitioner to the Martial Law authorities, and therefore, the petitioner is very much an aggrieved party as the above order dated 26-7-1977 s been superseded by the impugned order dated 11-8-1977 and the order contained in the notification dated 9-1-1978 without affording an opportunity the petitioner. It has also been contended that even otherwise the petitioner has locus standi as the impugned orders have adversely affected e petitioner's rights/interests. In support of the above contention Mr. Siddiqui has relied upon the case of Fazaldin v. Lahore Improvement Trust (PLD 1969 SC 223). (b) In the above case the facts were that the appellant Mian Fazaldin ter purchasing a plot bearing No. 86-E/1 in the Gulberg III Scheme of shore Improvement Trust, constructed a bungalow thereon. At the time when the appellant purchased the above plot the scheme as approved by the respondent Improvement Trust showed Plot No. 94-F/1 meant for a public market. However, it appears that the respondent trust allotted a portion the above plot reserved for market to an association for the purpose of constructing inter aila a mosque. The petitioner filed a constitutional petition rich was dismissed by a Division Bench of the erstwhile High Court of West Pakistan. Against which an appeal was filed in the Supreme Court. In the above appeal a preliminary objection was raised by the respondent to e effect that appellant had no locus standi to file the writ petition. Their Lordships of the Supreme Court while rejecting the above contention were pleased to hold that the right sufficient for maintaining a proceeding of a writ is not necessarily a right in the strict juristic sense, but it is enough if the applicant discloses that he had personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or curtailment of the privilege or liberty or franchise. Their Lordships were also pleased to quote with approval a passage from the
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judgment in the case of Montgomery Flour and General Mills v. Director of Food Purchase (PLD 1957 Lah 1914), delivered by Kaikaus, J. (as he then was). The above West Pakistan High Court decision of Kaikaus, J. Was also approved by the Supreme Court of Pakistan in another case, viz. Ikram Bus Service v. Board of Revenue (APLD 1963 SC 564). It may be advantageous to reproduce hereinbelow the above-quoted passage in the above Supreme Court case which reads as follows :- "In support of this contention learned counsel has also placed strong reliance upon the observation contained in a judgment of the High Court of West Pakistan in the case of Montgomery Flour & General Mills Ltd. v. Director, Food Purchase (PLD 1957 Lab. 914) by Kaikaus, J. (as he then was). "It is true," observed the learned Judge "that the petitioner must have some right if he applies to the Court for a direction or order under Article 170 (now Article 98 of the Constitution of Pakistan) but he need not have a right in that strict sense of the term which is mentioned above. Whenever an enactment empowers a public officer to pass orders that benefit or harm a citizen, the citizen gets a right that in a matter in which he is concerned "an order be passed in accordance with law. This too is a right that can be enforced by the Court in the exercise of its jurisdiction under Article 170 of the Constitution of Pakistan. If the officer concerned passes an order that is not in accordance with law, any person whose interests are affected by the order can maintain a petition for a writ or direction under Article 170. All orders of Executive Officers, are subject to challenge by those affected by the orders, and a person would be affected even if he loses some benefit or advantage which he would have gained if the order was in accordance with law. A public Officer passing an order on an application submitted to him does not grant the applicant a favour. He is only granting the applicant his right in the sense that he has a right to have the matter determined in accordance with law and justice. It will be observed that even a fundamental right may not be a "right" in the strict sense of the term. A right to acquire or hold property, a right to carry on a profession, a right to move about freely, etc. Are not rights in the strict sense because they do not cast any corresponding duties on any person. They are what writers on jurisprudence call "liberties". In a wider sense these too are recognised as rights by jurisprudence and they can form the basis of a writ --petition." This decision was approved by this Court in the case of Ikram Bus Service v. Board of Revenue PLD 1963 SC 564 where this Court stated that "Even an administrative body such as an R. T. A. Is under a legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body, should determine the matter with whose decision it is charged, in accordance with law." A perusal of the above-quoted passage of the High Court indicates that if an Officer passes an order that is not in accordance with law, any person whose interests are affected by the order can maintain a petition,, for a writ or direction and that all the orders of the Executing Officer are subject to challenge by those affected by the orders and that a person would be affected even if he loses some benefit or advantage which he would have gained if the order was in accordance with law. (c) In our view. It is not the status of the petitioner as an agent or otherwise which will determine his locus standi but the determining factor will be as to whether the impugned orders have adversely affected the petitioner's right/interest in any manner. In the instant case under the agreement the petitioner has paid a sum of Rs. 2,50,000 to the principal as an advance payment. The petitioner is entitled to receive 15 % as a commission out of the net income of the film throughout the period of 7 years from the exhibition of the film in Sind and Balushistan. The effect of the impugned orders is that the petitioner cannot exhibit the film throughout the province of Sind in respect of which it holds the right to exhibit under the agreement. Therefore, it cannot be urged that the petitioner has no locus stand! To challenge the impugned orders.
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6. Mr. Said A. Shaikh has also contended that the petitioner's status being of an agent, it cannot maintain a legal proceeding in its own name in the presence of its principal. The above contention proceeds on the wrong premises that the above petition has been filed by the petitioner on behalf of its principal. The petitioner has not challenged the impugned orders for or on behalf of its principal but has challenged the impugned orders on the ground that the same have adversely affected the petitioner's rights/interests, and therefore, the above contention is devoid of any force. 7. The learned counsel for the respondents Nos. 1 and 2 in support of his above second contention that the principle audi altrampartem has not been violated, has drawn our attention to rule 22 of the Rules which contemplates providing of an opportunity of hearing to an applicant, who bad obtained a certificate of censorship and not to any other person. It has also been urged by the learned counsel that by expressly providing in sub-clause (6) of rule 22 that an opportunity is to be given to the applicant of the censor certificate, by implication excluded the right of other persons to be heard. On the other hand, the learned counsel for the petitioner has contended that as the order dated 21-7-1977 was rescinded through the order dated 26-7-1977 by the respondent No. 3 in response to the representation made by the petitioner to the Martial Law authorities, it was entitled to be heard before the above order dated 26-7-1977 was to be superseded finally. It may be advantageous to reproduce the order dated 26-7-1977 referred to hereinabove (Annexure D to the petition), which reads as follows "No. H (R)/4131 / 1977. District Magistrate's Office, Hyderabad. Dated 26-7-1977. Order of the District Megistrate, Hyderabad, Sind. A committee comprising of Martial Law Authorities, and Sub-Divisional Magistrate City, Hyderabad and five Pathan leaders witnessed film entitled "Begum Jan" and found nothing objectionable in it. Besides the film is being exhibited in other parts of country including Peshawar and it has been confirmed from the District Magistrate, Peshawar that the film is under exhibition and no one has raised any objection for its exhibition. Therefore, the District Magistrate, Hyderabad is leased to withdraw suspension order issued under this Office No. H(B)/4054 dated 21st day of July 1977. Given under my hand and seal of the Office this the 26th day of July 1977. (Sd.) Muhammad Hashim Memon, for District Magistrate, Hyderabad, Sind: 26-7-1977." From the reading of the above order, it is clear that after the passing of the above order dated 21- 7-1977 a committee comprising of the Martial Law authorities, S. D. M. City, Hyderabad and 5 Pathan leaders was constituted to witness the film, who upon witnessing the film found nothing objectionable in it. On the basis of the above finding of the committee and the fact that the film was exhibited in other parts of Pakistan including Peshawar, which fact was confirmed on the telephone from the D. M. Peshawar, the above suspension order dated 21.7-1977 was recalled. In para. 6 of the petition it has been asserted that the petitioner made a representation to the Martial Law authorities, and that upon its representa--tion the aforesaid order dated 26-7-1977 was passed. The learned counsel for respondents Nos. 1 and 2 has contended that the above fact has not been proved by the petitioner, by any documentary evidence as the documents on the record do not disclose the name of the petitioner. To this, the reply of the learned counsel for the petitioner was that the petitioner has asserted the above fact in the petition which has not been refuted by the respondents Nos. 3 and 4 by filing a counter-affidavit. As stated herein--above that though the respondents Nos. 3 and 4 were represented through a counsel but no counter-affidavit was filed on their behalf and, therefore, it is to be presumed that the aforesaid respondents have inter alia admitted the above assertion contained in the petition. It may be observed that even the respondents Nos. 1 and 2 have not specifically denied the above assertion, but have not admitted
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the same for want of knowledge. It appears that the respondent No. 3' has not forwarded a complete report to the respondent No. 1 as was required under section 5(4), of the Act which fact is clear from para. 8 of the counter-affidavit, wherein the following assertion has been made "Para. 8 of the petition is not admitted for lack of knowledge as no copy of the alleged order was forwarded to these respondents." 8. In our view, it cannot be urged that the petitioner was a stranger to the proceedings taken under section 5 of the Act by the respondent No. 3. Our Supreme Court as well as the High Courts have consistently held that even though there might not be an express provision for providing l hearing, but the rule of natural justice requiring that a person should not be condemned unheard is a settled principle of law which will b-l read into the relevant law unless the application is excluded by express words. In this regard we may refer to the following cases: (i) Chief Commissioner, Karachi v. Mrs. Dine Sohrab Katrak PLD 1959 SC (Pak.) 45. (ii) Messrs Faridsons Ltd. v. Government of Pakistan and another PLD 1961 SC 537. (lli) Abdur Rehman v. Collector and Deputy Commissioner, Bahawalnagar, PLD 1964SC461. (iv) Abdul Sabur Khan v. Karachi University 1966 SC 536. (v) Muhammad Khan v. Shamshuddin PLD 1969…
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