' WAJIHUDDIN AHMED, J.---On 17-11-1994 we had passed an order wherein were incorporated a number of conclusions on the legal plane which had emerged from several judgments of this Court. Such order which we reproduce below may be treated to be part hereof: "Learned counsel agree that, inter alia, in view of the decisions of this Court in Sikandar All v.
Province of Sindh and others (C.P. No, D-320 of 1991), Adam v. Province of 'Sindh and others (C.P. No, D-374 of 1994) and Haji Khan v. Government of Sindh (1990 M LD 155) the following questions stand determined at the level of this Court:-
1. Pursuant to the Sindh Fisheries Ordinance, 1980 and the Sindh Fisheries Rules, 1983, framed under that Ordinance, leases of fishing rights can be granted by the Government only in the manner prescribed, the word 'prescribed' having been defined as prescribed by the rules. It has, accordingly, followed per postulation in rule 6 of the Sindh Fisheries Rules, 1983, that such rights, as aforesaid, can only be leased in the stipulated months of May and June 'by open auction' and that is to be 'for the next financial year', implying that the leases in question are not to exceed one financial year. It, however, still remains to be decided whether fishing rights in reserved or protected forests are regulated by the Sindh Fisheries Ordinance and the Rules.
2. Such leases as aforesaid and indeed conferment of similar rights at the level of public bodies, where the prescribed mode is by way of public auction, the auctions have to be processed through appropriate public notices in newspapers, enjoying wide circulation and such notices are to be published reasonably in advance of the dates fixed for the relevant auctions.
3: In so far as leases of fishing rights are concerned the conferment of those rights is to be restricted to Muqami Mirbahars; in other words out siders are precluded.
4. There may be a distinction between leases and licences granted under the Sindh Fisheries Ordinance and pursuant rules vis. Sindh Fisheries Rules, 1983, but the differentiation can only be made on the facts of each case.
' While the foregoing enunciations may have attained finality at the level of this Court, it is conceded at all ends that some of the aforementioned questions are currently receiving attention at the level of the Supreme Court of Pakistan upon grants of necessary leaves to appeal. We, however, are not bound by the leave granting orders which do not constitute declarations of law in terms of Article 189 of the Constitution of Pakistan. On the other hand, one Division Bench of a High Court is bound by an earlier enunciation of law by another Division Bench of the same Court subject, of course, to the formation of a larger Bench and a different determination by such Bench of the same question but that would arise only when a Bench, subsequently seized of a similar matter, comes to entertain a different view on the same legal issue. We, however, on our part respectfully agree with the formulated enunciations and would decide this and the connected petitions on the basis of the formulations recorded above, subject always to relevant distinctions, if any, in each of the several petitions, which have been laid together before us for hearing today.
' Putting the parties to appropriate notices, we adjourn the hearings of this and the connected petitions to 23-11-1994."
' Upon hearing the facts, as they have emerged, are that according to the petitioner the respondent No, 6 was granted a contract of fishery rights in the disputed waters otherwise than through an open public auction and otherwise than in due course of law by the respondents Nos. 3 and 4, the period spreading over 19 months and ending with 31-12-1994. Mr. Abdul Fattah Malik, however, says that the contract of the respondent No, 6 was for a period of 12 months and the grant was made in an open public auction. It would not be all that necessary to determine such controversy because the petitioner has not claimed the grant of rights to him for such period, admittedly ending 31-12-1994. What he has questioned, however, is an extension of the respondent's contract by the Minister Fisheries whereby the contract of the respondent No, 6, such as it may have been, was formally extended for a period of three years at the level of the Director Fisheries, respondent No, 2.
In view of the decided points of law, reproduced above, such extensions at the level of the Executive are impermissible and cannot be sustained. Mr. Abdul Fattah Malik for the respondent No, 6, however, has urged that the petitioner has no locus standi to enter caveat as to such a noncompliance. We do not think so. The petitioner admittedly is a citizen of Pakistan. If any rights are required by law to be conferred through open (public) auctions, all persons entitled to participate in such auctions can insist upon specific compliance of the conditionalities of such grants, namely, by way of open auctions. The petitioner being a citizen and also allegedly a Mirbahar would be entitled to maintain a petition of this character. However, whether he is a local Mirbahar or not is a disputed question and can only be deter mined by the auctioning authority as and when the auction takes place.
As to fishing rights in reserved or protected forests, it would seem that neither the Sindh Fisheries Ordinance, 1980, nor the Sindh Fisheries Rules, 1983, are directly applicable to the same. However, grants of those F fishing rights as well, which are regulated by section 26(1)(i) etc. Of the Forest Act, 1927, would more or less be subject to similar general formalities, as are, set out above.
Regarding the distinction between leases and licences, under the Sindh Fisheries Ordinance, 1980 and the Rules made thereunder, subject to what we have stated above, all that we need to say is that a lease of fishing rights would involve exclusive possession for a specific purpose of an identifiable fishing area, for a period fixed mutually, whereas a licence would entail a mere permission to fish alongwith others against a fee, the permit being revocable at the option of the licensor. The right involved here falls in the category of a lease rather than a licence and calls for compliance of the formalities sipelled out above.
' For such reasons, as aforesaid, we are of the view that the petition calls for grant. We allow it in the under-noted terms:-
(i) The official respondents would hold a fresh auction for the fishery rights involved in this petition for the period 1-1-1995 to 30-6-1995 and such auction would be held during the month of December, 1994 after duly advertising the date of the auction in terms of the order dated 17-11-1994.
Only Muqami Mirbahars would be entitled to participate in such auction and the contract would be granted to the highest bidder and the best person capable of performance of such contract.
(ii) In the event the respondent No, 6 does not get the contract for the period commencing 1-1-1995 for any reason whatsoever he would not be entitled to hold on to possession. In case he has any claim, right or entitlement against the department such would be pursued appropriately by way of the relevant legal remedy.
(iii) The petitioner as well as the respondent No, 6 would be entitled to refund of such amounts as may be due to them from the official respondents in relation to the two contracts which each of them has projected in this petition. This in so far as the respondent No, 6 is concerned would be after adjusting the period for which that respondent has already run the contract. Further, the respondent No, 6 would not be entitled to any seeds etc. That he may have put in the contracted fishing waters.
(iv) Once the contract is awarded in accordance with the foregoing, fresh auctions would be held from year to year of the disputed waters in the months of May and June each succeeding year, as prescribed by rule 6 of the Fisheries Rules.
(v) Any contravention howsoever trite it may be of the foregoing terms would constitute contempt of the authority of this Court.
(vi) Parties would bear their own costs. Petition disposed of.