1. ' B. G. N. KAZI, J.-The petitioners who claim to be owners of contigous Kabuli land in Deh Machhko; Taluka Kandhkot and Deh Zargarh Taluka Kashmore now under water known as "Sour Dhoro" have challenged the order dated 11-7-1977 of the Department of Fisheries Government of Sind auctioning the lease of Sour Dhoro to respondents Nos, 4 and 5; order dated 1-12-1977 of respondent No, 3 stopping them from fishing in the aforesaid water, order dated 2-2-1978 of respondent No, 2 permitting the auction purchasers to fish and finally the order of respondent No, 2 dated 6-6-1978 upholding the auction of the water on 7-11-1977.
2. ' The facts as stated in the petition are that petitioners 1 to 15 jointly own and possess Survey Nos, 117 to 121, 123 to 140, 142, 143, 215, 216, 604 to 609, 613 to 615, situated in Deh Machhko, Taluka, Kandhkot and petitioners 16 to 25 jointly own and possess Survey Nos, 149-156, 159, 168, 172, 189, 191, 210, 966 and 968 in Deh Zargarh, Taluka Kashmore contiguous with the aforementioned Survey numbers in Deh Machhko. The entire land holding of the petitioners under the water measures 408 acres of Kabuli land. According to them a portion of Survey No, 157, Survey Nos, 169 to 171 and 190 measuring in all about 12-1/2 acres situated in Deh Zargarh, Taluka Kashmore, is Nakabuli state land which is scattered and is surrounded by the petitioner's land already referred to. The entire area is situated in one continuation and is under seepage water since 1958, because of its close proximity with Begare feader canal of Gudu Barrage. It may here be stated that in the counter-affidavit of the Fisheries Development Officer, Sukkur, on behalf of respondents Nos, 1 to 3 the factual position with regard to Survey Nos, 117 to 121, 123 to 140, 142, 143, 215, 216, 604 to 609 and 613 to 615 situated in Deb Machhko Taluka Kandhkot belonging jointly to petitioners 1 to 15 was denied and it was asserted that aforesaid Servey numbers are exclusively owned by petitioner Inam Khan alone and it was denied that Survey Nos, 149 to 159 to 168, 172 to 189, 191 to 210, 965 and 968 of Deh Zargarh Taluka Kashmore were jointly owned by petitioners 17 to 25 but it was asserted that the same were owned by 19 Khatedars. It was further alleged that the petitioners had deliberately suppressed the existence of Survey Nos, 142, 143. 144, 145, 146, 147, 148, 133, 134, 138, 139, 820, 121 of Deh Zargarh.
3. Whatever the exact position about the ownership of the different Survey Nos, It has been argued by the learned counsel for the petitioners that it is undoubted factual position that the land under the "Sour Dhoro" is mainly Kabuli land belonging to Khatedar and there is some Nakabuli land belonging to the Government also under the water.
4. ' The validity of the impugned orders is challenged mainly on the grounds that the main portion of the land under the water being Kabuli land belonging to petitioners the Fisheries Department is wrong in considering that the water is "Public Water" as defined in rule 2 (f) of the West Pakistan Fisheries Rules, 1965 and for the same reason the auction of fishing rights in the water under rule 18 of the aforesaid rules is not legal and proper. It is further contested by the learned counsel for the petitioners that there being no legal provision directly on the point of lease mixed waters the position as it existed under the instructions of the Government of Sind in Part II of standing Order No, 7 regarding the disposal of Fishery and Aqastic Plans etc. Should be considered as unaffected by the promulgation of the West Pakistan Fisheries Ordinance, 1961 (Ordinance XXX of 1961) and the West Pakistan Fisheries Rules 1965. In support of his contention about rights of the Khatedars whose Kabuli land is under the water the learned counsel has referred to note 505 under Part I dealing with Public and Private Fisheries in Halsbury's Laws of England Vol. 17 (Third Edition) at page 297. The relevant portion of the note reads as under:- : "505. Corporeal and incorporeal fisheries.-The general principle is that fisheries are in their nature mere profits of the soil, over which the water flows and the title to a fishery arises from right to soil."
5. ' For a proper understanding of the contention of the learned counsel for the petitioners Part II of the Standing Order of the Sind Government referred to by him is reproduced and is as under :- "The fishery rights of Government extend over all dhandhs and dhoras, except such as are in kabuli lands. Where the dhandh lies entirely within kabuli land, the Government right of fishing, as of other produce has been commuted for a cash assessment under the Survey Settlement and Government has no further claim. If the kabuli land is in possession of more than one khatedars, the khatedars must decide on the question of disposal of the fishing rights among themselves. The Mukhtiarkar should interfere in case of dispute.
6. ' Where the land under the dhandh is partly kabuli and partly nakabuli if the boundries of the kabuli land can be distinguished, the same rule will apply, i,e,, Government can dispose of the right of fishing only over the nakabuli land. Where, however, it is not possible to distinguish the boundaries, the proper method is to lease the fishing rights of the whole dhandh and to pay a share of the produce to the khatedars proportionate the area of their holdings under the dhandh after deducting the survey assessement. It would be a matter for the Collector's discretion to whom fishing rights should be leased in such cases. It would probably often be desirable to give the lease to the occupant, or the principal occupant of the kabuli land under the dhandh Mohanas, may, however, have some vested interests in the dhandh, or at least in that portion which is nakabuli and in that case it may be desirable to give the lease to them."
7. ' It would be observed that it has been emphasized in the Standing Order that fishery right of Government extend over all Dhandhs and Dhoras except such as are on kabuli land. Emphasis has been placed on the fact that where dhandh lies entirely within kabuli land the Government rights of fishing as of other products are to be commuted for a cash assessment under the survey settlement and Government has no other claim. The fishery rights were considered as belonging to Government and therefore even in case the entire dhandh or water was over kabuli land it was a case of assessm ent. As paragraph 2 or Part II quoted above makes clear, in case the dhandh o A water is partly on kabuli land and partly on nakabuli land and the boundaries of kabuli land are not distinguishable, as is the case of water under consideration, the Government had the right to dispose of the right of fishing in whole dhandh and to pay a share or produce to the khatedars proportionate to their holding. Thus it cannot be said that the Government had no right to auction fishery rights in waters covering kabuli as well as nakabuli land, and distinction was made between waters exclusively on the land of Khatedrr and waters over land which was not exclusively owned by a khatedar Even definition of "private Fishery" given in Halsbury's Laws of England at page 303 (Third Edition) is of fishery made exclusive for the Crown or a subject. The same distinction has been maintained in the West Pakistan Fisheries Ordinance, 1961 in definition of "Private Water" as given in S. 21 ((g) thereof as under :- (g)
8. "Private water" means water which is the exclusive property of any person, or in which any person has for the time being an exclusive right of fishery, whether as owner, lessee or in any other capacity; Explanation.-Water shall not cease to be "Private Water" within the meaning of this definition by reason only that other person may have by custom a right of fishery therein;" - "Public Water" has been defined in rule 2 ( f) of the West Pakistan Fisheries Rules, 1965 as under :- ( f) "Public Water" means water other than the 'private water" and includes-
(i) all natural bodies of water, such as rivers and their tributaries creeks, brooks, lakes, bayous, mays channels, canals or lagoons or dug, dredged of blasted canals;
(ii) any water impounded by the construction of any lake or dam or other impounding device across the channel of a navigable stream ;
(iii) flowing water within which fish are free to move across property lines and which are not by law or customs property of any person;"
9. ' It would be observed that the definition is of wide cannotation in 'that it means water other than "private water" which has been defined in the Ordinance and includes waters described in clauses (0, (ii) and (iii) of the rule. We are therefore unable to accept the contention the "Sour Dhoro" is not covered by definition of "Public Water" as given in rule 2 (f) of Rules.
10. ' Section 4 of the West Pakistan Fisheries Ordinance, 1961 gives power to Director, of Fisheries or such other officers as he may empower to lease out the right to fish in any water other than private water. The impugned order which certainly was not with regard to private water was therefore passed_ under a legal provision and similarly the other impugned orders or administrative authorities could not be said to be illegal for the same reason.
11. ' It may here be observed that before invoking the extraordinary jurisdiction of this Court under Article 199 of the Constitution the petitioners should have exhausted all other legal remedies.
12. Although the petition mentions that a representation was made to Secretary, Department of Agriculture, Livestock and Fisheries, Government of Sind there is no mention of the outcome of representation. There is also no mention in the petition as to whether any claim for compensation etc. In respect of the kabuli land under seepage water from the canal was ever made.
13. ' Since for the reasons given above the impugned orders cannot be considered to be illegal or without jurisdiction, under the circumstances stated, the petition is dismissed with no order regarding costs.
14. ' FAKHRUDDIN G. EBRAHIM, J.-I agree that this petition be dismissed but for the reasons that it has come infructuous for the impugned auction for a specified period, which period even otherwise stands expired, was never given effect to and it is not open to us to answer academic questions in exercise of our jurisdiction under Article 199 of the Constitution.