SHC bars Irsa from acting on Cholistan link canals water certificate

KARACHI: The Sindh High Court (SHC) on Monday restrained the federal government and the Indus River System Authority (Irsa) from taking any further action in pursuance of the water availability certificate of January 25, 2024, regarding water supply through link canals for Cholistan area.

The interim order came on a petition seeking the implementation of a court order for appointing a federal member to Irsa from Sindh. Petitioner’s counsel Zamir Ghumro submitted that since the current composition of Irsa is not in accordance with the law -- Indus River System Authority Act, 1992 and the executive order of July 10, 2000 -- which has been affirmed by this court in its earlier judgment, therefore, the certificate of January 25, 2024, issued by the Secretary of Irsa be suspended, on the basis of which the present water dispute has arisen, inter alia, for transferring water through link canals for Cholistan area.

He submitted that no steps regarding the construction of the canals could be taken as water availability certificate issued by Irsa on 25th January 2024 during caretaker set up was illegal. The counsel submitted that Irsa composition is not in accordance with law in the absence of federal member Irsa as the same was not appointed from Sindh as per Sindh High Court’s judgment.

He submitted that Irsa issued water availability certificate illegally when water is not available for canals. He said that no work on canals could be undertaken on the basis of illegal water availability certificate as Irsa was working illegally without member Irsa from Sindh.

The counsel submitted that there was severe water scarcity in Sindh and delta has been destroyed, hence the construction of canals may be stopped forthwith as construction of canals would severely affect Sindh. He sought interim stay order with regard to supply of water through link canal for Cholistan area.

SHC’s division bench comprising Justice Faisal Kamal Alam and Justice Jawad S Sarwana observed, prima facie, contention appears to be correct, because the judgment of the SHC has attained finality, according to which the Member representing the federation is to be from Sindh province, but the present incumbent Irsa member is not from Sindh, thus the present structure of Irsa is under serious dispute.

The court observed that looking at the sensitivity of the issue the propriety demands that the federal government and the Irsa should not take any further action and measures in pursuance of the water availability certificate January 25, 2024.

The court observed that Article 155 of the Constitution provides a dispute resolution mechanism, including appointment of commission of experts.

To court query, the advocate general Sindh submitted that such provision has been invoked. The federal and provincial law officers sought time to file para-wise comments.

The court granted the law officers ten days’ time to file para-wise comments along with documents and an advance copy be provided to the petitioner’s counsel.

Petitioner Qurban Ali Maitlo submitted in the petition that appointments made to Irsa were not being made in accordance with the law, which is a prerequisite for ensuring transparency, merit and good governance.

He maintained bias is manifestly evident in its recent decision to construct the Cholistan and Thal Canal Phase-II, despite insufficient water availability in the Indus basin. Consequently, he submitted, the very existence of the Indus delta, which is already facing an ecological disaster characterised by seawater intrusion, loss of mangrove forests, dwindling fisheries, and saltwater contamination of freshwater sources, is at the risk.

The court was requested to direct the respondent member federal to show authority of law under which he was holding his office of federal member of Irsa, and in case of his failure to do so, issue writ of quo warranto against him declaring his office vacant forthwith.

He also sought a declaration that the decisions made by Irsa, including but not limited to the Water Availability Certificate January 25, 2024, are unconstitutional and void ab initio, having been made without lawful authority and in violation of the fundamental rights of the people of Sindh and the province’s rights under the constitution and laws of Pakistan.

Speaking at a news conference at Karachi Press Club on Monday, Pakistan Peoples Party Senator Barrister Zamir Ghumro said that after the fresh stay order granted by the Sindh High Court, the government cannot undertake the construction of the controversial irrigation canals on the Indus River.

Ghumro said that the concerned people of the province had taken to the streets against the proposed construction of irrigation canals on the Indus River.

He said the high court has granted a stay order against the certificate issued by the Indus River System Authority (Irsa) about the availability of water to construct new irrigation canals on the river.

He also said the construction of new canals is not possible after the fresh court order. He recalled that on January 25, 2024, Irsa had controversially issued the certificate for the availability of additional water in the Indus River’s system.

He said that the canals project had later been referred to the Executive Committee of the National Economic Council, where it failed to get approval.

The senator said the federation’s representative to be nominated as an Irsa member should be from Sindh as per the past decision of the government. The federal government has “unduly” chosen its representative to sit on Irsa from Punjab to make a decision against Sindh’s legitimate water interests, he added.