Highly controversial mega project: LHC asks government to construct Kalabagh Dam
November 30, 2012: The Lahore High Court on Thursday directed the federal government to construct highly controversial Kalabagh Dam. The LHC Chief Justice, Umar Ata Bandial, while disposing of several identical petitions seeking directions for construction of Kalabagh Dam observed that under Article 154(7), it was the constitutional obligation of the government to enforce the decision of the Council of Common Interest (CCI) about construction of Kalabagh Dam.
“In the circumstances and for detailed reasons to follow, the federal government is directed that in the performance of its duty under Article 154 of the Constitution, it shall in letter and in spirit take steps to implement the decisions of the CCI dated 16.09.1991 and 09.05.1998 regarding Kalabagh Dam,” he said.
The CJ further added that bona fide steps by the federal government in the foregoing behalf were necessary so that the fate of the project was not sealed on the basis of presumptions and surmises when in the light of the material on record the project was admittedly feasible both technically and economically.
The chief justice directed the government to take the foregoing steps expeditiously with a resolve to comply with the provisions of Article 154 of the Constitution by effectuating the will of the CCI as expressed or by seeking further guidance and direction therefrom, “if need arises.” The court further observed that “whilst implementing the CCI decisions the federal government shall faithfully strive to explore and devise an administrative framework and safeguards that allay the apprehensions, political or otherwise nurtured by concerned quarters about the Kalabagh Dam project”.
The CJ said that Senior Joint Secretary of the Ministry of Inter-Provincial Co-ordination, Government of Pakistan had apprised the Court of two decisions by the CCI regarding the Kalabagh Dam project. “The first is dated 16.09.1991 when express approval for construction of Kalabagh Dam multipurpose project was given,” the court said.
Thereafter, on 09.05.1998 the CCI re-visited the project when the Natural Water Resources Development Program (NWRDP) headed by the Ministry of Water and Power was directed to prepare for detractors a document explaining the issues involved in the construction of Kalabagh Dam and addressing political and technical concerns about it. It was also directed that supplementary projects in support of the Kalabagh Dam be prepared to mitigate its effect. The CJ further observed that neither the said decisions nor the project thereafter received much attention of the federal government.
The Chief Justice observed that a decision of the CCI had an obligatory effect unless the same was modified by Parliament at the instance of the Federal government under Article 154(7) of the Constitution. In the present day of shortage of available electric power in the national grid, the chief justice said scarcity and depletion of irrigation water resource for arable land in the country and the frequent occurrence of floods in the Indus Riverine Basin had adversely affected the quality and security of life of the citizen in the Province of Punjab and the country as a whole.
The resulting degradation in the quality and conditions of life of the affected citizen violates their fundamental rights guaranteed under Article 9 and 25 of the constitution, according to him. Bar members Azhar Siddique, Syed Feroze Shah Gillani and others had filed the petitions, seeking construction of the dam. Petitioners” counsel said that in 1991, the chief ministers of the four provinces and the federation had signed an agreement at the Council of Common Interests (CCI) and this agreement had not been implemented so far. He submitted that the court could invoke the provisions of Articles 9 and 38 of the Constitution and order the construction of the KBD under the doctrine of public interest.
The counsel said that this project was in interest of all four provinces and objections raised against it were of technical nature, which could be removed. The technical committee on water resources on April 11, 2005 had given a green signal for construction of this dam. He said that in June 1985 and July 1989 the Planning and Development Division had decided to construct this dam.
He said that former caretaker chief minister of Khyber Pakhtunkhwa and Wapda ex-chairman Shamsul Mulk said on October 9, 2010 that KBD was not an issue of Punjab alone but a matter of the country”s survival that was at stake due to fast depleting water resources. The petitioner said the KP suffered the most due to a delay in the construction of KBD as even after completion of Bhasha Dam the province would continue to be deprived of additional water because it would be 50 feet below D. I. Khan where 800,000 acres of available agricultural land could not be irrigated economically.
He said if KBD was built water would be available for vast tracts of land in KP at affordable price because the water level would be high enough to irrigate farms. He said the purpose of CCI was to iron out differences, problems and irritants between the provinces and between provinces and federation.
He said that in year 2004 the LHC had ordered for taking measures to construct this dam. He therefore urged the court to issue directions for the construction of KBD. Water and Power Development Authority (Wapda) had submitted a report in LHC and said the objections and apprehensions of three provinces against the construction of Kalabagh Dam were based on lack of information.
However, provincial assemblies of Khyber Pakhtunkhwa (KP), Balochistan and Sindh had passed unanimous resolutions against the construction of Kalabagh Dam in December 1988, October 1994 and June 1994 respectively. Wapda report said that the construction of this project was necessary to meet the country”s energy needs, “as it is a gigantic multipurpose engineering project.” The objections and apprehensions of three provinces against construction of Kalabagh Dam were baseless. An awareness campaign should have been launched to inform legislators about the importance of this project, but no such exercise was done before the passage of resolutions.
It said if allowed, it could build the dam within six years and by 2020 it would be generating electricity. He said experts of various countries, including China and America, had given their recommendations that the construction of the dam was not harmful for any part of the country. According to the reply, as per the findings of experts, no land of the Khyber Pakhtunkhwa will be rendered barren by the construction of KBD.