Bangladesh Environmental Decisions 01 BED 2018

Dr. Mohiuddin Farooque Vs. Bangladesh, 49 DLR (AD) 1;

Ms. Syeda Rizwana Hasan Vs. Bangladesh and others BALCO Employees Union (Regd) Vs. Union of India, 2001 AIR SCW 5135;
also reported in 9 ADC (2012) 816, 18 BLC (AD) (2013) 54; 39 CLC (AD) [8508] S. P. Gupta Vs. Union of India, 1981 (Supp) SCC 87; J
anata Dal Vs. H.S. Chowdhury, (1992) 4 SCC 305;
Unnayan Kartipakha and another Vs. Moshiul Islam, 53 DLR (AD) 79;
ABM Khairul Haque CJ Mushiul Islam (53 DLR (AD) 79);
Ms. Syeda Rizwana
Md. Muzammel Hossain J Parvin Akter (7 BLC (AD) 167).
Hasan..................... Petitioner
Surendra Kumar Sinha J
vs.
Counsels Involved:
Bangladesh and others.....................
Judgment Fida M. Kamal, Senior Advocate, instructed by Mrs. Nahid Sultana, Advocate-on-Record—For the
Respondent*
08th November 2010 Appellant.

Morad Reza, Additional Attorney General, instructed by Mrs. Sufia Khatun, Advocate-on-Record—For
Related Acts: Respondent No.1.
The Constitution of Bangladesh, 1972 - Article 102.
A. F. Hasan Ariff, Senior Advocate, instructed by A.K.M. Shahidul Hague, Advocate-on-Record—For
Note: Respondent No.2.
A Petition of Public Interest Litigation
Nurul Islam Bhuiyan, Advocate-on-Record—For Respondent No.4.
In considering a petition as PIL it is to be seen that where there is undoubtly public
injury by the act or omission of the functionary of the State or a local authority or Rokanuddin Mahmud, Senior Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record—For
public authority or executive excess causes a legal injury to a specific class or group Respondent Nos.5-7 (as added respondent).
of individuals or a public injury or public wrong or infraction of fundamental rights
affecting a number of people is involved the exercise of jurisdiction by Court is Ex-prate-For Respondent No.3.
justiciable. If grievances of those people are unredressed due to poverty, lack of
education, helplessness, social disability, only then the Court would entertain a
petition if a public spirited person or organisation comes to Court on their behalf. In Judgment
other words, more clearly the underprivileged or the poor who are unable to come to
Court due to illiteracy or monetary helplessness, a petition on their behalf will be 1. Surendra Kumar Sinha J: Leave granted.
welcomed. The litigation must have been initiated for the benefit of the poor or any
number of people who have been suffering the common injury but their grievances 2. Appellant, the Bangladesh Environmental Lawyers Association, (BELA) questioned
cannot be redressed as they are not able to reach the Court. the propriety of the implementation of partly revised lay out plan on the bank of
lake adjacent to Road No.20, Sector-3, the Uttara Model Town (UMT) by a writ
Conversely, if the said class or group who are injured by the action do not wish to petition in the High Court Division. It's claim is that it has been active since 1992
claim a right or relief against such invasion and accept such act or omission without as one of the organizations with expertise in the regulatory field of environment
protest, no member of the public or organisation making the relief has suffered a and ecology. Since its inception BELA has undertaken a large number of public
secondary public injury can maintain any petition against such act or omission, or interest litigations (PIL) and to promote in creating public awareness for the safe
when an act or omission is of such a nature which shocks the judicial conscience, the and sound environment and to establish a sound ecological order. The writ
Court should extend its jurisdiction. respondent No.2, the Rajdhani Unnayan Kartipakka ("RAJUK") has been authorized
and entrusted with the responsibilities, among others, to adopt Master Plan, allot
Cases Referred: plots, approve building constructions, create recreational and other civic facilities,
Chairman, RAJUK and other Vs. Parvin Akter, 7 BLC (AD) 167; infrastructure plans for the Dhaka City. The UMT situated at both sides of Dhaka-
Hussaina Khatoon Vs. state of Bihar, AIR 1979 S.C. 1369 ; Tongi highway adjoining the International Airport was developed as a Model Town
Khatri Vs. state of Bihar, AIR 1981 S.C. 928; for residential purposes in the early 1980 by the writ respondent No.2. Since the
BRAC Vs. Professor Mozaffar Ahmed, 54 DLR (AD) 36; creation of the UMT, its inhabitants have been enjoying the calm and pacifying
flow of a water body through the heart of the township popularly known as "Uttara
*
Civil Appeal No.200 of 2004. Lake". While preparing the Master Plan of the UMT by the writ respondent No.2,
(From the judgment and order dated 17.2.2004 passed by the High Court Division in Writ Petition No.948 of 1997.)

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 Bangladesh Environmental Decisions 01 BED 2018

this water body was kept to be viewed and purposes of a lake as an essential the UMT being seriously aggrieved by the aforesaid unlawful acts of the said
environmental component. A part of the water body has its flow by the side of respondents appealed to the writ petitioner for appropriate legal assistance. After
Road No.20 in Sector-3 of UMT. The lakeside or bank adjacent to Road No.20 is a conducting necessary field investigation, scrutinizing relevant papers and
narrow strip of land and was left by the writ respondent No.2 in the original Master analysing laws, the writ petitioner, being satisfied with the truth of the allegations
Plan as space for developing Park to enhance the view and purpose of the water issued a notice demanding justice on 23 October, 1996, on the writ respondents
body as lake. requesting them to cancel, abandon the implementation of the revised layout plan
immediately in the greater interest of the public and the natural environment of
3. The writ respondent No.2 has adopted a revised layout plan for Sector 3. In this the lake and the adjoining areas. But none of the writ respondents have replied to
layout plan the narrow strip of the lakeside land adjacent to Road No.20 be filled the notice till date.
up and plots be reclaimed and allotted thereafter to new allottees for construction
of residence. At the same time, the southern side of the lake would also be filled 6. Writ respondent No.4, a private person individually contested the Rule by filing an
up for constructing a new Road No.22 and connecting it to Road No.20. The writ affidavit-in-opposition denying the allegations made in the writ-petition. It was
respondent No.2 has already initiated the process to implement the layout plan claimed that the revision of the layout plan was done in accordance with law and
and has started allotting plots on the lakeside land deviating from the original that the layout plan was revised for creating additional plots which is a continua-
Master Plan. The reclamation and allocation of the plots on lake side has created tion of the earlier plan for the purpose of accommodation, and this creation of
wide dissatisfaction amongst the inhabitants of the UMT in general and more plots would not involve environmental risk.
particularly the nearby residents who made several representations to the
appropriate authorities and agencies including the respondent Nos.2 and 3, the 7. The High Court Division upon hearing the parties observed that there is no evi-
Department of Environments for taking effective measures against such unlawful, dence or material with regard to filling up the lake in any way, that the amenities
irregular, environmentally hazardous and arbitrary decision and action of the said such as park, play ground, school, mosque etc. are clearly marked in the layout
writ respondents. In response to the appeal of the residents of the UMT, the writ plan, that the open space in front of Road No.20 does not appear to have been
respondent No.3 conducted investigation in the said area and submitted its report marked for any such purpose, that the benefit of the open space in front of the
dated 3 September, 1996 which is supportive of the allegations of the residents. lessees was a momentary fortuitous benefit which has been taken away for the
The said report has recorded the fact of deviation from the original Master Plan greater benefit of the community at large and that the views taken by this
and factually supported the concern of the inhabitants with regard to degradation Division in Chairman, RAJUK and others Vs. Parvin Akter, 7 BLC (AD) 167
and pollution of environment in case part of the lake was filled up for allocation on are applicable in the case.
the vacant land of a part of the lakeside shown as Park in the original Master Plan.
The respondent No.3 vide its letter dated 23 September, 1996 suggested the 8. Before we enter into the merit of the case, we would like to dispose of a prelim -
Ministry of Environment and Forest (MoEF) for requesting respondent Nos.1, the inary point raised by the learned Additional Attorney General about the
Ministry of Housing and Works, and the respondent No.2 for developing the UMT maintainability of the writ petition. According to the learned Additional Attorney
without disturbing the natural environment of the lake. General, the writ petitioner is not a person aggrieved' within the meaning of
Article 102 of the Constitution; the writ petitioner was representing well-to-do cit-
4. Accordingly, the Ministry by its letter dated 13 October, 1996 conveyed the find- izens, who are allotees of UMT capable of establishing their rights, and thus, a PIL
ings and requested not to disturb the natural environment of the lake by their pro- on their behalf for alleged public injury or invasion of the fundamental rights is for-
posed allocation. The writ respondent No.2 in pursuance of the impugned layout eign to the jurisprudential concept.
plan, has been allotting new plots for the purposes of housing constructions. The
original Master Plan shows that the Road No.20 is about 20 feet in width having 9. It is pertinent to mention here that one Mahmuda Parveen filed writ petition
building line on one side and lake on the other side while all other roads of the No.5121 of 1996 claiming as lessee of a plot in the vicinity of Road No.20 of UMT
UMT are 40-60 feet in width having lessees on both sides. This also indicated that on the ground that the creation of new plots on the western edge of the lake is
while drawing the Master Plan, there was no plan to develop the lake side for any outside the layout plan and that would" block cross-ventilation between each of
purposes other than to maintain a natural water body with further greening of the the plots allowing common passage of air and light to pass easily. No other
site. allotees of the vicinity challenged legality of the implementation of the revised
layout plan supporting the claim of Mahmuda Parvin other than the writ petitioner
5. Accordingly, the lessees of the road side adjoining the lake have designed their who claimed that the residents being seriously aggrieved by the alleged unlawful
houses and have been living with the benefit of the excellent lake-view. The allot- acts appealed to it for appropriate legal assistance. Said Mahmuda Parveen,
ment of plot on the lake side would render the area as a congested one adversely however, accepted the judgment of the High Court Division and did not challenge
affecting the residential trait of the UMT and will add to another example of it in this Division.
disaster by unplanned development with questionable motives. The residents of
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10. In this sub-continent the concept of PIL has been developed in India in 1970 for Court Division and also did not move on behalf of other less fortunate persons of
vindicating the interest of common people to protect their fundamental rights and the society who had no source or means to invoke writ jurisdiction. Learned Chief
other related rights who are socially and economically disadvantaged, not con- Justice concluded his argument observing as under:
scious to their basic rights, even if they are conscious but due to paucity of their
ability they could not vindicate their rights and unable to seek legal redress to the "So, the petitioner cannot move the High Court Division under Article 102 of
Court of law. Bhagwati, J. in Hussaina Khatoon Vs. State of Bihar, AIR 1979 the Constitution to protect the interest of the so-called less fortunate people
S.C. 1369 followed by Khatri Vs. state of Bihar, AIR 1981 S.C. 928 with an in the society."
innovative mind had handed down monumental decisions which had a
tremendous impact on the lives and liberty of the people and had opened up the 13. In Dr. Mohiuddin Farooque Vs. Bangladesh, 49 DLR (AD) 1, Mostafa
concept of PIL -a term used to mean actions filed by a member of the public to Kamal, J. argued on the point of 'person aggrieved' within the meaning of Article
protect the human - rights of those disadvantaged sections who could not afford 102. It is stated that when a public injury or public wrong or infraction of a funda-
to move the High Court. The High Courts extended it’s arms so as to secure mental affecting an in terminate number of people is involved, it is not necessary,
justice for the poor and weaker sections of the community who are not in a in the scheme of our Constitution, the multitude of individuals who has been
position to protect their own interests. It is in that sense ’litigation in the interest collectively wronged or whose collective fundamental rights have been invaded
of the public'. This type of litigation was invoked almost for the weaker sections of are to invoke the jurisdiction under Article 102 in a multitude individual writ
people and in areas where there was violation of human rights under Article 21 of petitions, each representing his own portion of concern. In so far as it concerns
the Constitution of India, which provision is in verbatim with Article 32 of our public wrong or public injury or invasion of fundamental rights of an interminate
Constitution which provides 'No person shall be deprived of life or personal liberty number of people, any member of the public, suffering the common injury or
save in accordance with law." common invasion in common with others, espousing that particular cause is a
person aggrieved. It is further argued:
11. With the passage of time, the Indian High Courts and the Supreme Court by
their pronouncements expanded the philosophy towards various dimensions, "If he espouses a purely individual cause, he is a person aggrieved if his own
entertained petitions, extended and exercised jurisdiction in respect of: interests are affected. If he espouses a public cause involving public wrong
or public injury, he need not personally affected. The public wrong or injury
a) Where the concerns underlying a petition are not individualist but are is very much a primary concern of the Supreme Court which in the scheme
shared widely lay a large number of people (women, Children or bonded of our Constitution is a Constitutional vehicle for exercising the judicial
labour); power of the people."

b) Where judicial law making is necessary to avoid exploitation such as inter- 14. B.B. Ray Chowdhury J while endorsing those arguments added as under:
country adoption, the education of the children of the prostitutes;
"In this backdrop the meaning of the expression "person aggrieved" occur-
c) Where judicial intervention is necessary for the protection of the sanctity of ring in the aforesaid clauses (1) and (2) (a) of Article 102 is to be understood
democratic institutions-independence of judiciary, existence of grievances and not in an isolated manner. It cannot be conceived that its interpretation
redressal forums; and should be purged of the spirit of the Constitution as clearly indicated in the
Preamble and other provisions of our Constitution, as discussed above. It is
d) Where administrative decision related to development are harmful to the unthinkable that the framers of the Constitution had in their mind that the
resources such as air or water. grievances of millions of our people should go unredressed, merely because
they are unable to reach the doors of the court owing to abject poverty,
12. In BRAC Vs. Professor Mozaffar Ahmed, 54 DLR (AD) 36, Professor illiteracy, ignorance and disadvantaged condition. It could never have been
Mozaffar Ahmed, an economist, questioned the validity of a certificate of no the "intention of the framers of the Constitution to outclass them. In such
objection issued by the Bangladesh Bank for the incorporation of BRAC Bank harrowing conditions of our people in general if socially conscious and pub-
Limited by Bangladesh Rural Advancement Committee in the High Court Division lic-spirited persons are not allowed to approach the court on behalf of the
in the nature of PIL. The High Court Division made the rule absolute. On appeal, public or a section thereof for enforcement of their rights the very scheme
this Division interfered with the judgment of the High Court Division on the ground of the Constitution will be frustrated. The inescapable conclusion, therefore,
of the writ petitioner's locus-standi to maintain the writ petition. M. Amin is that the expression 'person aggrieved" means not only any person who is
Chowdhury, CJ speaking for the majority argued that the writ petitioner did not not only any person who is personally aggrieved but also one whose heart
mention that how less fortunate people are being protected in moving the High bleeds for his less fortunate fellow beings for a wrong done by the
Government or a local authority in not fulfilling its constitutional or statutory
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obligations. It does not, however, extend to a person who is an interloper new jurisprudence which the Court is evolving a jurisprudence which
and interferes with things which do not concern him. This approach is in demands judicial statesmanship and high creative ability."
keeping with the constitutional principles that are being evolved in the
recent times in different countries." 18. In Janata Dal Vs. H.S. Chowdhury, (1992) 4 SCC 305, the above views
have been reaffirmed in the following language:
15. In BALCO Employees Union (Regd) Vs. Union of India, 2001 AIR SCW
5135 Kirpal J in his speech argued: "It is thus clear that only a person acting bonafide and having sufficient
interest in the proceedings of PIL will alone have a locus standi and can
"It will seen that whenever the Court has interfered and given direction approach the Court to wipe out the tears of the poor and needy, suffering
while entertaining PIL it has mainly been where there has been an element from violation of their fundamental rights, but not a person for personal gain
of violation of Article 21 or of human rights or where litigation has been ini - or private profit or political motive or any oblique consideration. Similarly a
tiated for the benefit of the poor and the under privileged who are unable to vaxatious petition under the colour of PIL brought before the Court for
come to Court due to some disadvantage. In those cases also it is the legal vindicating any personal grievances, deserves rejection at the threshold."
rights which are secured by the Courts. We may, however, add that Public
Interest Litigation was not meant to be a weapon to challenge the financial 19. Petitions of the nature are being filed at random and a sense of feeling at one
or economic decisions which are taken by the Government in exercise of time has been developed that the filing of PIL is not regarded to become 'Publicity
their administrative power. No doubt a person personally aggrieved by any Interest Litigation' or 'Private Interest Litigation'. The PIL, initially disapproved by
such decision, which he regards as illegal, can impugn the same in a Court judges with traditional bent of mind had over the years grown into unmanageable
of law, but, a Public Interest Litigation at the behest of a stranger ought not proportions opening up flood gates of litigation-some quite legitimate whilst some
to be entertained. Such a litigation per se be on behalf of the poor and were nothing more than sheer abuse of judicial process. Thus there is no gain-
downtrodden, unless the Court is satisfied that there has been violation of saying that 'the Public Interest Litigation' was essentially meant to protect basic
Article 21 and the persons adversely affected are unable to approach the human rights of the disadvantaged section of citizens and a jurisprudence which
Court." has been innovated where a public spirited person or organization like NGO
invokes the jurisdiction of the Court on behalf of such persons, who by reason of
16. Recently we have noticed that there is a tendency of filing petitions in the poverty, lack of education, helplessness, social disabilities or economic paucity
nature of PIL and the High Court Division has been entertaining such petitions cannot seek legal redress for the violation of his rights, fundamental or legal in the
without satisfying the criteria for entertaining such petitions and making interim Court of law. There is, thus, need to reemphasize the parameters within which the
orders preventing the Government or the local authority in undertaking High Court Division should extend its jurisdiction. The High Court Division should
development works of the country. It is also seen that after filing petitions, the guard to see that its' processes are not abused by any person or lawyer and
lawyers are pretending to propagate to the electric and print media focusing to exercises its jurisdiction sparingly.
the orders of the Court, the motive is discernible which is deprecated.
20. Now the point to be considered is the parameter of exercising the discretion. It
17. In S. P. Gupta Vs. Union of India, 1981 (Supp) SCC 87 Bhagwati J. is to be seen that where there is undoubtly public injury by the act or omission of
observed: the functionary of the State or a local authority or public authority or executive
excess causes a legal injury to a specific class or group of individuals or a public
"But we must be careful to see that the member of the public, who injury or public wrong or infraction of fundamental rights affecting a number of
approaches the Court in cases of this kind, is acting bonafide and not for people is involved the exercise of jurisdiction by Court is justiciable. If grievances
personal gain or private profit or political motivation or other oblique of those people are unredressed due to poverty, lack of education, helplessness,
consideration. The Court must not allow its process to be abused by social disability, only then the Court would entertain a petition if a public spirited
politicians and others to delay legitimate administrative action or to gain a person or organisation comes to Court on their behalf. In other words, we would
political objective -------. It is also necessary for the Court to bear in mind like to make it clear that the underprivileged or the poor who are unable to come
that there is a vital distinction between locus-standi and justifiability and it to Court due to illiteracy or monetary helplessness, a petition on their behalf will
is not every default on the part of the state or a public authority that is be welcomed. The litigation must have been initiated for the benefit of the poor or
justiciable. The court must take care to see that it does not overstep the any number of people who have been suffering the common injury but their griev -
limits of its judicial function and trespass into areas which are reserved to ances can not be redressed as they are not able to reach the Court.
the Executive and the Legislative by the Constitution. It is a fascinating
exercise for the Court to deal with public interest litigation because it is a 21. However, if the said class or group who are injured by the action do not wish to
claim a right or relief against such invasion and accept such act or omission with-
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out protest, no member of the public or organisation making the relief has provisions of the Act. Learned counsel further contended that the expression
suffered a secondary public injury can maintain any petition against such act or Master Plan has not been defined in the Act or in any other laws. According to the
omission, or when an act or omission is of such a nature which shocks the judicial learned Counsel, there is distinction between "a Master Plan" and "a layout Plan",
conscience, the Court should extend its jurisdiction. and in support of his contention he has referred to 83AM-JUR, 2nd Edition (Zoning
and planning) at page 61.
22. We want to make it clear that every wrong or curiosity is not and can not be
the subject matter of PIL. In the name of public interest frivolous applications 26. This takes us to consider whether, annexure-B, to the writ petition is the orig-
should be avoided. None of the contingencies discussed above is present in this inal master plan of Sector-3 which has subsequently been changed by the writ
case and thus the writ petition is not maintainable. This disposes of the respondent No.2 in the revised layout plan in order to allot plots to the new
preliminary objections as to the maintainability of the writ petition raised by the allottees. What constitutes a 'Master Plan' and 'comprehensive zoning plan' have
learned Additional Attorney General. been explained in 83 AM-JUR as under:

23. Mr. Fida M. Kamal, learned Counsel appearing for the appellant argued that the "Master plans serve as general guides that recommend area development
High Court Division erred in law in relying upon the case of Parvin Akter in failing and proposed future land use and zoning. Such a plan may be called a
to appreciate the ratio decendidi of the case of Rajdhani Unnayan Kartipakha master plan or a comprehensive plan. Not only is the development of a local
and another Vs. Moshiul Islam, 53 DLR (AD) 79, which is applicable in this comprehensive zoning plan a valid exercise of power by the government,
case, and the case of Parvin Akter is quite distinguishable. It is further but an enabling statute may require that zoning be made in accordance
contended that the High Court Division failed to appreciate that there can not be with a plan. A master plan essentially surveys land use as it exists and
any revision of layout plan without first adopting an improvement scheme. The makes recommendations for future planning, and it may include maps and
findings of the High Court Division that the alteration of the open space being not other descriptive materials which document the various land uses present
marked as public amenity is lawful is erroneous, inasmuch as, annexure-B to the within the jurisdictional area.
writ petition, clearly shows that the said open space is lake side greenery that
cannot be altered for creation of new plots without following the provisions of the A "comprehensive zoning plan" is one which applies to or covers a substan -
Town Improvement Act, 1953. Learned counsel further urged that the findings of tial or wide geographical area, and must be designed to control and direct
the High Court Division that the benefits of open space are momentary fortuitous the use of land and buildings according to present and planned future con-
is erroneous as it ignores that the petition was filed in public interest to protect ditions, to accomplish as far as possible the most appropriate uses of the
the water body of Uttara lake and associated rights. It is finally argued that the land consistent with the public interest and the safeguarding of the interests
High Court Division erred in law in failing to consider that a road 20 of feet in of individual property owners. A municipality may establish a com-
width is being used as pedestrian road only as opposed to vehicular road as per prehensive land-use plan and effectuate that plan through a scheme of
provisions of the Town Improvement Act. comprehensive zoning regulations."

24. Learned counsel based his submission relying upon annexures-B & C, to the 27. We find from the above that a master plan is nothing but a guide for proposed
writ petition and tried to impress us that annexure-B is a Master Plan of Sector 3, future land use recommending the development of the area and zoning. It
UMT, where the lake side adjacent to Road No.20 shows a narrow strip of land generally surveys land use as it exists and recommends for future planning. In the
which has been left out by the respondent No.2 in the original Master Plan as Act, the expression 'Master Plan' has not been defined. There is however,
space for development park with a view to enhance the view of the water body. reference of 'Master Plan' in sections 73, 74 and 75. Section 73 speaks about
The writ petitioner claimed that if the proposed scheme is implemented, there preparation of a 'Master Plan' in respect of an area for carrying out development
would be degradation of the environmental and health hazard to the residents of of the land in phases. It is said, a master plan includes maps and such descriptive
the vicinity and that the southern side of the lake would be filled up for matters to illustrate the sites of proposed roads, public and other buildings, fields,
constructing new Road No.22 for connecting it to Road No.20 which is a deviation parks, pleasure grounds and other open spaces. A master plan must be published
of the original Master Plan. in the official gazette by the Government after it has been prepared by the
authority. There is also provision for filing objection against the master plan by
25. Mr. A.F. Hasan Ariff, learned counsel appearing for the respondent No.2 argued any person aggrieved by the preparation of the same and the Government may
that the learned counsel for the writ petitioner confused the expression 'Master modify it if there is merit in the objection. Though this 'Master Plan' is a conclusive
Plan' and on a misconception of law claimed that the respondent No.2 changed evidence after it is approved by the Government as provided therein but it can
the original master plan. According to the learned counsel, under no stretch of the also be amended or altered by the Katripakkha under section 74(2) from time to
imagination, exhibit-B can be taken as a Master Plan which is nothing but a time with the approval of the Government. Section 75 relates to use of land within
revised layout plan and the authority has revised it in accordance with the
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the 'Master Plan' area for any purpose other than that laid down in the master and the blaster plan has been approved by the Government before
plan by any person with prior permission of the authority. implementation of UMT. These are past and closed transactions. This alternation
or revision of the layout plan of a particular Zone of UMT has been undertaken for
28. We find from the above that the Town Authority or the Municipality or the the development of the area. Therefore, we find no substance in the contention of
Katripakkha draws a comprehensive plan for the development of the township by the learned Counsel for the appellant that there is violation of sections 69, 73 and
phases after surveying the entire land for future planning. This includes roads, 74 of the Act.
public and private buildings, fields, parks, pleasure grounds etc. delineating in the
maps and in the layout plans with descriptions to illustrate the proposals. There is 31. Now the question is whether as a result of revising the layout plan, there will
no dispute that annexure-'B' is a photo copy of a layout plan and the same does be environmental degradation due to congestion of the area by reason of
not include descriptive matter to infer anything that the open space has been kept conversion of the narrow strip land into residential plots. True, by reason of
for park or pleasure ground for the residents of the vicinity of Road No.20. It has conversion of the vacant space there might be congestion in the area but this
not been published in the official gazette and therefore, it does not fall in the preparation of relaying out plan is within the power of the respondent No.2, and
category of 'Master Plan' as indicated in section 73. this has caused no infraction of law. If there is no infraction of law, then it is
difficult to come to the conclusion that there has been invasion of the
29. Clause (c) (II) of section 38 of the Town Improvement Act, 1953 authorizes the fundamental rights of the writ petitioner. It is also difficult to sustain to the view
Kartripakkha either on a representation or otherwise for the purpose of developing that this congestion has caused environmental degradation of the locality in the
and improving any area to pass a resolution to that effect and may then proceed absence of law in that regard.
to frame an improvement scheme. Mr. Ariff contended that the respondent No.2
revised the layout plan for greater interest of the public for housing accom- 32. Learned Counsel tries to make out a case that this revision of the layout plan is
modation and in doing so it has not violated any law. As observed above, exhibit-B violative of section 54, inasmuch as, under this provision roads or strips of land of
is a photo copy of a layout plan and the learned counsel for the writ petitioner has 20 feet in width is intended for pedestrian traffic only as opposed to vehicular
frankly conceded that exhibit-B is not the original Master Plan of Sector-3. Though road and since this vacant space has been converted into housing plots, this road
an open space is seen in it by the lake side towards the western side of Road which is meant for pedestrian traffic will be used for vehicular purposes. Section
No.22, but this layout plan does not indicate as to the purpose for which it has 54 deals with matters relating to existing streets and alteration of the existing one
been kept. The writ petitioner did not call for the original layout plan of Sector-3 to providing that if the authority requires any alteration the width of the street
show that this narrow strip of land has been kept for development of Park to should not be reduced to forty feet if it is intended to be used for vehicular traffic
enhance the view of the water body as lake. Thus, we find no substance in the and twenty feet if it is intended for pedestrian traffic. In the proviso it is provided
contention that Annexure-B is a master plan of Sector No.3 and that the narrow that the width of an existing street need not be increased if the Katripakkha
strip has been kept for Park or for any other purposes other than for housing considers it impracticable and that the authority may in case of necessity install
purpose. equipment beneath the street for sanitary purposes. This provision has been
provided for the convenience of the residents of the locality that a provision has
30. Section 40 of the Act relates to matters for the improvement schemes. Clause been made in the Act that a street having less than twenty feet in width be
(b) of section 40 authorizes the Katripakkha to laying out or relaying out of an indented for pedestrian traffic. The alteration of the existing street is not the case
area for implementing a scheme for development purposes. Admittedly the of the writ petitioner and thus we find no merit in the contention of Mr. Fida M.
respondent No.2 revised the layout plan for using the vacant space for housing Kamal.
purpose. As per provisions of the Act the respondent No.2 has been authorized to
undertake improvement by relaying out of the land of any area. Mr. Fida M. 33. On a delving into the Act it is. noticeable that as per scheme, the katripakkha
Kamal, however, argued that this section 40 has been wrongly applied by the High has been given power to revise, alter or amend the layout plan or the master
Court Division and this alteration has been made in violation of sections 69, 73 plan, in case of necessity, for the purpose of development of an area and this
and 74 of the Act. Section 69 deals with matters relating to plans for public streets improvement of any locality is a continuous process and for the improvement and
or open spaces in regard to any area within the city or neighbourhood of the city accommodation of more people, an unutilized land acquired for habitation
where the Act applies. This section has no application in view of the fact that the purpose can be utilized at any time. Section 73 of the Town Improvement Act
lay out plan of Sector-3 has admittedly been prepared long before the institution authorises the respondent No.2 to prepare a master plan for an area indicating
of the writ petition as will be evident from Annexures-B & C to the writ petition. the manner of using land for carrying out development by preparing maps and
The master plan of UMT has been prepared long long-ago and after approval of such descriptive matter to illustrate the proposals delineating proposed roads,
the master plan, the Kartripakkha has taken up for the development of the UMT buildings, fields, parks and this master plan has no nexus with a development
phase by phase. The formalities for filing objections against the master plan or scheme to be undertaken in a particular zone under section 40 of the Act.
part thereof as required under sub-section (4) of section 73 has long been elapsed
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On a combined reading of sections 38, 40 and 73 shows that an improvement improvement. The conversion of park and open space enjoyed by the surrounding
scheme in respect of a particular zone or area is a continuous process and the allottees of a planned township cannot be converted into residential plots. In the
continuation of such scheme does not amount to violation of any of the provisions facts of the given case, this Division rightly maintained the judgment of the High
of the Act. Court Division and this decision is quite distinguishable.

34. Annexure-E, is the report of the Ministry of Environment which shows that the 38. In Parvin Akter (7 BLC (AD) 167), a writ petition was filed by Parvin Akter
lake has not been filled up. What is more, annexure-1 is the layout plan of Sector- challenging the action of the RAJUK in implementing a project in Gulshan Model
3, which was prepared on 14th November, 1983 and in the said layout plan, some Town by creating plots on the bank of the lake and constructing a road for access
plots had been shown in between the Road No.20 and the lake. Annexure-2 is the to the new plots adjacent to her house. It is claimed that if the construction was
revised layout plan of Sector 3, which was prepared on 30th October, 1995 made by the new allottees, greeneries and vegetation would be destroyed arid
earmarking 26 housing plots. These plots were created in the revised plan before she would be deprived of the view of the lake and greeneries and her privacy
filing the writ petition in 1997. In view of the above, we find no merit in the would also be disappeared rendering it impossible to reside on her constructed
contention of Mr. Fida M. Kamal that the adoption of the revised layout plan has building. The High Court Division made the rule absolute. This Division set aside
been made without following the provisions of the Act. the judgment of the High Court Division observing that the original master plan of
Dhaka City was formulated as far back in 1959 and there is no master plan for
35. Learned Counsel has referred to an unreported decision in Civil Appeal No.148 Gulshan Model Town. It is further observed that a residential model town is
of 2002 in support of his contention. In that case, the writ petitioner called in developed according to the detail area plan commonly known as layout plan
question the unauthorized construction of a multi-storey building namely 'Udayan prepared to cater to the requirements of the time, and that there is scope for
Market' undertaken by the Dhaka City Corporation at Bangabandhu Avenue which change and modification of the layout plan from time to time to cope with and
was a site reserved for car parking center as shown in the master plan of RAJUK. cater to the needs of a first growing metropolitan capital city. The RAJUK, in the
The writ petition was filed on the ground that if the multistory shopping complex premises, modified the layout plan and converted the narrow strip of land
is constructed, the environment of the area will be threatened and that the project between the Parvin Akter's land and Gulshan lake. There is no evidence that the
was not undertaken for the welfare of the common people. This Division upon lake has been or is being filled up for the project. The narrow strip of the vacant
hearing the parties allowed the appeal declaring that the construction of Udayan land has been converted into plots which is an extension of Gulshan residential
Market on the proposed land earmarked for public car parking in the master plan plots by altering the layout plan and this would not adversely affect the envi-
had been undertaken unlawfully, for collateral purposes, and that it would be ronment of Gulshan or the greeneries of the lake. The facts of the case of Parvin
unlawful for any one to use the land for any purpose other than that laid down in Akter are almost in resemblance with the facts of the present case. In view of the
the master plan unless such person was permitted to do so. The facts of the case above, the High Court Division has rightly followed the case of Parvin Akter.
is quite distinguishable from the facts of this case.
39. There is no material in support of the allegation that the lake side land
36. There is no allegation that if housing project is implemented on the vacant adjacent to Road No.20 would be filled up or that process for allotment of plots of
space, there will be environmental problems in the vicinity depriving the residents the lake side land has been started deviating the original master plan and that the
from the 'lawful rights to the enjoyment of a sound and healthy environment. southern side of the lake would be filled up for constructing a new road being
There is also no allegation that in case of implementation of the housing project Road No.22. However, we have reason to believe that the implementation of the
there will be ecological affect in the locality. Though there is allegation that by the project would render the area congested one, which in turn affect the residential
impugned layout plan, the narrow strip of the lake side land be filled up and plots trait of the UMT. It can not altogether be brushed aside that if this process of
be reclaimed and at the same time, the southern side of the lake would also be allotment of plots is implemented without any check, one day the planned UMT
filled up for constructing a new road being No.22 for connecting it with Road would be converted into an unplanned residential area, in which event, the
No.20, the High Court Division upon perusal of the materials on record came to purpose for which UMT had been under taken would be bound to shatter. This sort
the conclusion that there is no evidence or material with regard to the filling up of of scheme would also deprive the residents of the vicinity from a healthy
the lake in any manner. atmosphere.

37. In Mushiul Islam (53 DLR (AD) 79), admittedly a vacant space kept for use 40. What is more, these new plots had not been allotted at the initial stage along
as park, play ground, school, mosque and community center in Sector 4, UTM was with it’s surrounding plots. The authority cannot allot plots of a residential area
converted into residential plots. The High Court Division found that this alteration capriciously without following the procedures. We have been noticing in a number
was made illegally and the layout plan was illegally changed. This Division of cases that there has been a rise in the tendency of converting the narrow strips
maintained the judgment observing that section 2(h) of the Act authorities RAJUK and vacant spaces which have been kept beside the lakes of Banani, Gulshan,
to alter the layout plan, which power must be exercised for the purpose of Baridhara, Nikunja and Uttara Model Town and they are being allotted as resi-
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 Bangladesh Environmental Decisions 01 BED 2018

dential plots to the selected persons on political or other considerations. If this have always been considered to have an overriding duty to maintain public
process is allowed to continue one day it would be found that the greeneries and confidence in the administration of justice-often referred to as the duty to
vegetation would be covered by multistorey buildings rendering the vicinity a vindicate and uphold the majesty of law. Due administration of justice has always
congested area resulting it impossible for the city dwellers to lead a normal habit - been viewed as a continuous process, not confined to determination of the
able life in those areas and this would have affected environmental degradation. particular case, protecting its ability to function as a court of law in the future as
in the case before it. Doing justice is the paramount consideration and that duty
41. If we look at society from a historical perspective, we realise that protection can not be abdicated or diluted by reason of improper application. It is recognized
and preservation of the environment has been integral to the cultural etho of most in the public interest that the authority acting by virtue of statutory powers can
human communities. The international community has increased its awareness of not exceed his authority. In view of the above, we feel it proper to direct the
the relationship between environmental degradation and human rights abuses. respondent Nos.1 and 2 to carry out the following guidelines:
Environmental protection encompasses not only pollution but also sustainable
development and conservation of natural resources and the eco-system. Our a) to make survey of the aforesaid lakes on the basis of the original mas ter
Government is increasingly supportive of stringent environmental laws and plans drawn and in its absence, the original layout plans and demarcate the
enacted evsjv‡`k cwi‡ek `~lb msi¶b AvBb, 1995 , Article 31 of the Constitution areas of the said lakes by affixing permanent pillars.
states that every citizen has the right to protection from 'action detrimental to the
life, Liberty, body, reputation or property' unless these are taken away in b) RAJUK to take immediate step not later than 6 months from the date of
accordance with law. The citizens have the inalienable right to be treated in receipt of this judgment to construct Mk-ways on the banks around the
accordance with law. If these rights are taken away compensation must be paid. Gulshan, Baridhara, Banani, Nikunja and Uttara lakes.
The Supreme Court of India upon interpreting Article 21 of the Indian Constitution
observed that the right to life and personal liberty to include the right of c) to serve notices upon the encroachers to vacate the encroached lands,
environment. within 15 days of receipt of the notices after demolishing structures, if there
be any, and if they fail to vacate land evict all encroachers after survey and
42. It is thus apparent that environmental and human rights are inextricably linked. the costs of such eviction be realised from them by filing cases under the
Despite the above law, protection and preservation of environment is still a pass - Public Demand Recovery Act, 1913.
ing issue. The RAJUK taking advantage of its powers conferred by the Act is con-
verting the open spaces initially kept beside the Gulshan, Baridhara, Banani, d) to close down all drains and other pits of filth that pass into those lakes.
Nikunja and Uttara lakes into residential plots and has been allotting those plots
to the influential persons phase by phase without following the procedures. There e) the residential plots created from the vacant spaces beside those lakes prior
should be transparency in the system of allotment of such plots. Mr. Ariff has to this pronouncement will be allotted in accordance with the procedure
failed to satisfy us what procedures for allotment of these plots are being fol- being followed in the allotments in respect of old plots were made.
lowed? Admittedly the converted plots from the vacant open spaces had not been
allotted at the time of allotment of surrounding plots of the locality. Taking f) to transplant trees on the banks bordering the lakes.
advantage of lack of proper plan to ultize these vacant spaces, the neighbouring
allotees it is alleged, has encroached most of the said lands and even raised g) if these directions are not complied with, the Chief Metropolitan Magistrate
constructions without prior permission. Allotment of selected plots by pick and will prosecute the officers responsible.
choose basis without following objective procedure is arbitrary and deprecated.
Under the circumstances, we feel it proper to see that the Katripakha has not The appeal is dismissed with the above observations without any order as to costs.
exercised its powers arbitrarily while dealing with such vacant spaces. If the
authority decides to use an unutilized land acquired for habitation purpose, the Ed.
allotment should be made in transparent manner safeguarding the interest of the
neighbouring residents and following the procedures.

43. Though we found that the writ petition is not maintainable, but considering the
trend of converting the vacant spaces in a concerted manner phase by phase as
housing plots taking advantage of the weakness of the law and allotting them to
selected persons without following the procedures, this Division being the final
arbiter should step in to prevent undue and arbitrary exercise of powers. Courts

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