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Letters Patent Appeal No. 95 of 1974, decided on 12th February, 1975.

‑‑ S. 4‑Cinematograph Rules, r. 31(1), proviso‑Licence, renewal, of‑Defect in building of open air cinema, disqualifying licensee for getting renewal‑Defect rectified by licensee before renewal of licence ‑Held, appellant, if aggrieved of grant of temporary licence for running open air cinema or removing non‑renew ability condi tion, should have been prompted to challenge same at by way of writ‑‑‑Nothing on record to indicate that renewal of grant of temporary licence was in violation of Rules‑Appeal dismissed in circumstances.‑[Letters Patent Appeal].

Malik Amjad Hussain for Appellant.

The appellant's partner namely, Farooq Ghani, had applied for the grant of a temporary licence for an open air cinema in August, 1972 (Annexure A') respondent No. 1, on 19th October, 1972 refused to grant the same suggesting to him that he should apply for a permanent licence for Pacca cinema (Annexure B'). The partner of the appellant moved another application for the same purpose on 2nd October, 1972 but this was also refused by respondent No. 1. On the other hand respondent No. 2 was given a temporary licence for an open air cinema in June, 1971 only for one year as there existed a condi tion that it would not be renewable. However, subsequently on 21st September, 1971 respondent No. 1 passed a resolution waiving the condi tion of non‑renewability of temporary licences. As a result the temporary licence on yearly basis granted to respondent No. 2 for running an open air cinema, became renewable automatically. Thereafter it is con tended that the appellant applied on 28th July, 1973 (Annexure 'E') to respondent No. 1 that since the open air cinema of respondent No. 2 had been allowed on the basis of a temporary licence in contravention of the rules, the temporary licence granted to him should not be further renewed and be cancelled. In response to this application, respondent No. 1 passed the impugned order, dated 27th August, 1973 (Annexure 'F') to the effect that the Board considered the matter and had decided the licence of respondent No. 2 be renewed subject to rectification of defects in the building as pointed out by the Cantonment Executive Offficer and that since those defects had been rectified, the cinema licence in favour of respondent No. 2 had been renewed for the year 1973‑74. Aggrieved of the aforesaid order the appellant filed Writ Petition No. 1487 of 1973, before the Court which was heard by learned Single Judge who dismissed the same vide order, dated 6th March, 1974 on the ground that the petition suffered from laches and delay of more than two years and that, therefore, the writ petition did not warrant admission. Hence the present appeal.

2. We have heard the learned counsel for the appellant. The record indicates that respondent No. 2 was originally granted a temporary licence for running an open air cinema in June, 1971 with the condi tion that it was not renewable. Thereafter on 21st September, 1971 res pondent No. 1 waived the condition of non‑renewability. The appellant should have challenged the order of respondent No. 1 at that stage if he had felt aggrieved of the same. This he did not do. Any way the argument of the learned counsel before us is that according to the Govern ment instructions (Annexure D') respondent No. 1 had been given powers in super session of section 4 of the Cinematograph Act, 1918 in which the District Magistrate was named as the Licensing Authority. In the said letter in the Cantonment areas respondent No.‑ I was authorised to act as the Licensing Authority, notwithstanding anything contained in section 124 of the Cinematograph Act. It is submitted .that according to respondent No. l they had not framed any rules of their own and the officer who represented them‑ alongwith the' record before the learned Single Judge, had also conceded that they were not governed by the rules framed under section 4. The reasoning of the learned counsel is that as they had framed no rules on their own,‑ respondent No. 1, by virtue of substitution Would still be governed by the rules framed under section 4 of the Cinematograph Act. He has taken us through the West Pakistan Cinematograph Rules, 1982, Part 111, particularly pertaining to the grant of temporary licence. Rule 31 reads that an annual licence shall only be granted ‑or renewed in respect of a cinema building which as regards its location, structure, fitness,: electrical and other equipments, complies with the provisions of the rules in this part. ,However, in the 2nd proviso open air cinema, the provisions may be relaxed by respondent No. 1 without any reference to the Government. The case of the appellant is that there is nothing on the record to indicate that respondent No. I has relaxed the rules in cast of open air cinema as contemplated in the proviso to rule 31. Therefore, they would be governed by these rules and that there has been a violation of the rules in the sense that respondent No. 2 who was granted the temporary licence for running an open air cinema had defects in building which ought to have disqualified him and that there was no question of rectification. We have pointed out to the learned counsel that his difficulty is that if there was any defect in the open air cinema respondent No. 2 which disqualified him for getting a renewal then according to Annexure F' such defects had been rectified before the licence in his favour was renewed for the year 1973‑74. Conse quently the defects which existed in the past and had been rectified would not constitute a violation of the existing rules pertaining to tempo rary grant of open air cinema licence unless it could be shown that there was a persistent violation of such rules. The result is that if the appellant was aggrieved of the grant of temporary licence for running an open air cinema to respondent No. 2 in June, 1971 or removing the nonrenewability condition by respondent No. 1, then he should have been prompt to challenge the same: by way of writ petition. On the other hand if he is to show to us that respondent No. 1 was still governed by rules framed under section 4 of the Cinematograph Act, then violation these rules ‑should be persistent. But in the present case nothing has been brought on the record to indicate that the renewal of grant of temporary licence in favour of respondent. 2 was in violation of any of these rules.

3. In the light of the above discussion, we are of the view that ,.,.this appeal has no substance and it is accordingly dismissed in hmine.

M. A. K ‑‑‑‑‑‑‑ Appeal dismissed.

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