This judgment shall decide Writ Petitions Nos,3526 of 1999. 21037 of 1997, 9250 of 2000 and 3637 of 1994 as common questions are involved and all these cases 'were directed to be heard together.
2. Through these writ petitions, the petitioners seek direction to the respondent A in the matter of commencement and completion of Kala Bagh Dam Project. It has been emphasised that the said Project is absolutely necessary for agricultural need of the country as also for the survival of citizens in the long term. It has also been complained that notwithstanding the said vital importance of the Project to the country, the Project had not been commenced because of, what is being termed by the petitioners as political expediency .
3. Writ Petition No,3526 of 1999 was admitted to regular hearing by means of order dated 23-6- 2000 while the other cases have been tagged along. Notices were issued to the Federal Government as also all the Provincial Governments. In response the Federal Government.
Governments of the Punjab and N.-W.F.P. have filed comments. The Federal Government has expressed agreement with, the petitioners inasmuch the importance of the said project in the national interest is concerned.. However, it has been stated that some Provinces. to be precise Province of N.-W.F.P. and Provinces of Sindh have raised objections in the matter and steps are being taken to achieve a national consensus. The Government of Punjab has whole-heartedly supported the plea of the petitioners. The Government of N.-W.F.P. while not denying the fact that the Project is vital to meet with the growing needs of the country at the same time has expressed reservation with reference to the apprehension of the people of the area where the Project is proposed to be constructed.
4. Learned Deputy Attorney General for Pakistan has taken objections to the maintainability of the writ petitions on the ground that primarily it is a matter of policy and this Court would not interfere in the same.
5. I have heard the learned counsel for the writ petitioners and learned Law Officers and have also examined the several documents placed on record of these writ petitions.
6. As stated by me above, the Federal Government as well as Provincial Governments who had deemed it proper to response to the notice issued by this Court, have not denied the fact that the said Project is an absolute notional requirement. Some relevant facts and figures are available in the key note addressed by a Member (Water) WAPDA to a Conference arranged by Water Resources Council of Pakistan on 9-2-1998. The learned Speaker after referring to the existing resources and with reference to continuing loss of storage capacity in existing reservoirs, has estimated that by the year 2010 there will be a shortage of 7.7. MAF (Million Acres Feet) of Water required for agricultural need. The learned Speaker then earnestly asserted that work on another storage reservoir ought to have begun immediately after the completion of Tarbela Darn and quarter century delay is threatening not 13 only food security position but total economy of the country.
7. The replies submitted by the Federal Government, Punjab Government and Government of N.- W.F.P. do give impression that the respondents are fully aware of the said threatening situation. The Federal Government has also noted in its reply the apprehension expressed by Provincial of N.- W.F.P. which are the primal fear of recurrence of 1929 flood in Peshawar Valley including Noshera Town, adverse effect upon the Drainages of surrounding area of Mardan. Pabbi and Swabi plains which could result in water logging and salinity, adverse effect upon a portion of SCARP, submersion of cultivated land and displacement of large number of people. The apprehensions of Sindh Province are that the proposed Project would have effect of converting the province into desert, the River inner are would go out of production due to control over floods. Mangroves Forest in Indus Delta would vanish, adverse affect on fishery below Kotri. Sea water would intrude in Indus Estatstary. Another objection is that whereas the Project will be funded by the Federal Government Royalty would go to Punjab only.
8. The said apprehension expressed by the said Provinces have also been sought to be explained by the Federal Government.
9. It thus appears that the need for additional reservoir is recognized by the Federation as well as Units. However with reference to the location of the proposed Project apprehensions have been expressed by the said Provinces of Sindh and N.-W.F.P. Now on the one hand there is consensus that a Project of the nature of Kala Bagh Darn is absolutely essential for the agricultural and consequently the economic needs of the country while on the other apprehended hazards to the citizenary inhabiting area where the Project is proposed to be located are also to be considered. I may note here that the contentions, of the writ petitioners are based on Article 199 of the Constitution guaranteeing right of life to the citizens of the country. However, whereas essential nature of the Project for alleviating threats to the sustenance of the national agricultural and economy which ultimately means the survival of the entire populace on the one hand and apprehended losses and damages in the area in question, on the other need to be considered by the Federal Government. Mr. Justice Saleem Akhtar (as his lordship then was) in his leading opinion in the judgment in the case of Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) observed as follows at page 711 of the report:- "One cannot ignore that energy is essential for present-day life, industry commerce and day-to- day affairs; The more energy is produced and distributed, the more Progress and economic development became possible. Therefore, a method should be devised to strike balance between economic progress and prosperity and to minimise possible hazards. In fact a policy of sustainable development should be adopted."
In the said case his lordship was dealing with a situation where the grievance was made that high mention wires spread all over the country for transmission of electrical energy are adversely, affecting the health of the citizens.
10. There however, can possibility be no denial of the fact that ultimately it is matter of policy to be devised by the Federal Government and it will not be possible for this Court to issue specific direction particularly when the matter is of highly technical nature.
11. All these writ petitions are accordingly disposed of with the observations that the Federal Government, taking the Provinces into confidence and keeping in mind the national interest, the welfare of the citizens as also future generation shall resolve the issue. 'Some guidelines are available in the said judgment of the Honourable Supreme Court referred to by me above.
Hopefully the present regime and the 'representative Government proposed to be set up will not make it matter of political expediency. Copies of this judgment to be remitted to Secretary, Water and Power Division, Government of Pakistan Islamabad; Chief Secretary, Government of the Punjab. Lahore; Chief Secretary, Government of N.-W.F.P., Peshawar and Chief Secretary, Government of Sindh. Karachi.