Legal Development in Nepal

SC Clears Path for Upper Karnali Project

This is a news that we were waiting from Supreme Court of Nepal for some days. Though the matter has not been disposed fully, SC of Nepal has refused to give interim stay on the agreement signed by Government of Nepal and a private Indian Company GMR Energy of India. The News is reported here by Kanunisanchar.

I, nowonwards, generally rest my news on this site-Kanunisanchar.com as it collects most of the news as soon as it is pronounced.

If You remember, in this blog post, I had expressed my annoyance in a way PIL was filed as in my opinion, the petitioners are not able to make any such case and had demanded (in the sense expected that) SC must reject the petition for lack of merits. We need to wait and see what SC has to say on its final pronouncement. And it is expected that whatever will be the outcome of the case, it will be surely landmark in the annals of Foreign Investment related laws and constitutional validity of such laws in ‘New Nepal’.

In my earlier blog post, I had posed a question to the petitioners formulated in this way as mentioned below and I still believe that the question is still a valid one to find a simple answer for this case.

 “One simple question to petitioners: Are they going to file Public Interest Litigation (PIL) against government for not making dam and not obstructing the flow of rivers which eventually goes to mix in Bay of Bengal? My learned brothers, please look at there, water-our natural resources- is flowing down to south to foreign land and Our Parliament has not passed any such resolution.”

You can read the Supreme Court report here and is reproduced below:

Refusing to issue a stay order in the Upper Karnali Hydropower Project case, the Supreme Court on Thursday permitted the government to go ahead with the implementation of the understanding reached with Hyderabad-based GMR Energy Limited on the 300-MW power project.

A division bench of Chief Justice Kedar Prasad Giri and Justice Ram Kumar Prasad Shah refused to issue a stay order, and said the constitutional and legal questions raised by the petitioners will be settled by the court while delivering a final verdict on the case.
“The question whether the understanding needed a parliamentary approval or not will be decided while delivering the final verdict,” the bench stated.

The bench said: “Though the water flowing in a river is a natural resource, further discussion is required to decide on whether electricity generated from it is a natural resource or not, and whether an MoU signed with any national, international or joint venture company is a treaty or not.”

Advocates Bal Krishna Neupane, Borna Bahadur Karki, Tika Ram Bhattarai, Bhimarjun Acharya and Kamal Nayan Panta pleaded on behalf of the petitioners while Attorney General Yagya Murti Banjade and Deputy Attorney General Narendra Prasad Pathak defended the government.

Advocates Bharat Raj Upreti, Sushil Kumar Pant, Anil Kumar Sinha and Amarjivi Ghimire pleaded on behalf of the GMR Energy Limited.
Gorakha Bahadur BC of Kalikot and Ram Singh Rawal of Surkhet had jointly challenged the understanding reached between the government and the GMR Energy Limited to generate 300-MW hydropower from the Karnali River.

The counsels of the petitioners claimed that the signing of the agreement between the government and the GMR limited was unconstitutional. They also claimed that it was treaty related to sharing of a natural resource, and that the government violated the constitution by not seeking a parliamentary approval for it. The constitution says any treaty related to sharing of natural resources must be approved by a two-thirds majority of the parliament.

The government however claimed that the MoU was not related to sharing of natural resources and it did not need a parliamentary approval.

One Response

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  1. nepal trekking said, on November 15, 2009 at 9:34 am

    You have make very nice blog with good information.Thanku very much for sharing with us

    Regard
    Nepal Trekking


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