Bangladesh Environmental Decisions 01 BED 2018

Ms. Syeda Rizwana Hasan Vs. Bangladesh and others

also reported in 9 ADC (2012) 816, 18 BLC (AD) (2013) 54; 39 CLC (AD) [8508]

ABM Khairul Haque CJ

Ms. Syeda Rizwana
Md. Muzammel Hossain J
Hasan..................... Petitioner
Surendra Kumar Sinha J
vs.
Bangladesh and others.....................
Judgment
Respondent*
08th November 2010

Related Acts:
The Constitution of Bangladesh, 1972 - Article 102.

Note:
A Petition of Public Interest Litigation

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
public authority or executive excess causes a legal injury to a specific class or
group 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 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
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
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
cannot be redressed as they are not able to reach the Court.

Conversely, 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 without
protest, no member of the public or organisation making the relief has suffered a
secondary public injury can maintain any petition against such act or omission, or
when an act or omission is of such a nature which shocks the judicial conscience,
the Court should extend its jurisdiction.

Cases Referred:
Chairman, RAJUK and other Vs. Parvin Akter, 7 BLC (AD) 167;
Hussaina Khatoon Vs. state of Bihar, AIR 1979 S.C. 1369 ;
Khatri Vs. state of Bihar, AIR 1981 S.C. 928;
BRAC Vs. Professor Mozaffar Ahmed, 54 DLR (AD) 36;
Dr. Mohiuddin Farooque Vs. Bangladesh, 49 DLR (AD) 1;
BALCO Employees Union (Regd) Vs. Union of India, 2001 AIR SCW 5135;
S. P. Gupta Vs. Union of India, 1981 (Supp) SCC 87; J

*
Civil Appeal No.200 of 2004.
(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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anata Dal Vs. H.S. Chowdhury, (1992) 4 SCC 305;

Unnayan Kartipakha and another Vs. Moshiul Islam, 53 DLR (AD) 79;
Mushiul Islam (53 DLR (AD) 79);
Parvin Akter (7 BLC (AD) 167).

Counsels Involved:
Fida M. Kamal, Senior Advocate, instructed by Mrs. Nahid Sultana, Advocate-on-Record—For the
Appellant.

Morad Reza, Additional Attorney General, instructed by Mrs. Sufia Khatun, Advocate-on-Record—For
Respondent No.1.

A. F. Hasan Ariff, Senior Advocate, instructed by A.K.M. Shahidul Hague, Advocate-on-Record—For

Respondent No.2.

Nurul Islam Bhuiyan, Advocate-on-Record—For Respondent No.4.

Rokanuddin Mahmud, Senior Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record—For

Respondent Nos.5-7 (as added respondent).

Ex-prate-For Respondent No.3.

Judgment

1. Surendra Kumar Sinha J: Leave granted.

2. Appellant, the Bangladesh Environmental Lawyers Association, (BELA)

questioned 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 petition in the High Court Division. It's claim is that it has been active
since 1992 as one of the organizations with expertise in the regulatory field of
environment and ecology. Since its inception BELA has undertaken a large
number of public interest litigations (PIL) and to promote in creating public
awareness for the safe and sound environment and to establish a sound eco-
logical order. The writ respondent No.2, the Rajdhani Unnayan Kartipakka
("RAJUK") has been authorized and entrusted with the responsibilities, among
others, to adopt Master Plan, allot plots, approve building constructions, create
recreational and other civic facilities, infrastructure plans for the Dhaka City. The
UMT situated at both sides of Dhaka-Tongi highway adjoining the International
Airport was developed as a Model Town for residential purposes in the early
1980 by the writ respondent No.2. Since the 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 Lake". While preparing the
Master Plan of the UMT by the writ respondent No.2, this water body was kept to
be viewed and purposes of a lake as an essential environmental component. A
part of the water body has its flow by the side of Road No.20 in Sector-3 of UMT.
The lakeside or bank adjacent to Road No.20 is a narrow strip of land and was
left by the writ respondent No.2 in the original Master Plan as space for
developing Park to enhance the view and purpose of the water body as lake.

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3. The writ respondent No.2 has adopted a revised layout plan for Sector 3. In this
layout plan the narrow strip of the lakeside land adjacent to Road No.20 be filled
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 up for constructing a new Road No.22 and connecting it to Road
No.20. The writ respondent No.2 has already initiated the process to implement
the layout plan and has started allotting plots on the lakeside land deviating
from the original Master Plan. The reclamation and allocation of the plots on lake
side has created wide dissatisfaction amongst the inhabitants of the UMT in
general and more particularly the nearby residents who made several repre-
sentations to the appropriate authorities and agencies including the respondent
Nos.2 and 3, the Department of Environments for taking effective measures
against such unlawful, irregular, environmentally hazardous and arbitrary deci-
sion and action of the said writ respondents. In response to the appeal of the
residents of the UMT, the writ respondent No.3 conducted investigation in the
said area and submitted its report dated 3 September, 1996 which is supportive
of the allegations of the residents. The said report has recorded the fact of
deviation from the original Master Plan and factually supported the concern of
the inhabitants with regard to degradation and pollution of environment in case
part of the lake was filled up for allocation on 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 Ministry of Environment and
Forest (MoEF) for requesting respondent Nos.1, the Ministry of Housing and
Works, and the respondent No.2 for developing the UMT without disturbing the
natural environment of the lake.

4. Accordingly, the Ministry by its letter dated 13 October, 1996 conveyed the find-
ings and requested not to disturb the natural environment of the lake by their
proposed allocation. The writ respondent No.2 in pursuance of the impugned
layout 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 building line on one side and lake on the other side while all
other roads of the UMT are 40-60 feet in width having lessees on both sides.
This also indicated that while drawing the Master Plan, there was no plan to
develop the lake side for any purposes other than to maintain a natural water
body with further greening of the site.

5. Accordingly, the lessees of the road side adjoining the lake have designed their
houses and have been living with the benefit of the excellent lake-view. The
allotment of plot on the lake side would render the area as a congested one
adversely affecting the residential trait of the UMT and will add to another
example of disaster by unplanned development with questionable motives. The
residents of the UMT being seriously aggrieved by the aforesaid unlawful acts of
the said respondents appealed to the writ petitioner for appropriate legal
assistance. After conducting necessary field investigation, scrutinizing relevant
papers and analysing laws, the writ petitioner, being satisfied with the truth of
the allegations issued a notice demanding justice on 23 October, 1996, on the
writ respondents requesting them to cancel, abandon the implementation of the
revised layout plan immediately in the greater interest of the public and the

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natural environment of the lake and the adjoining areas. But none of the writ
respondents have replied to the notice till date.

6. Writ respondent No.4, a private person individually contested the Rule by filing
an affidavit-in-opposition denying the allegations made in the writ-petition. It
was claimed that the revision of the layout plan was done in accordance with
law and that the layout plan was revised for creating additional plots which is a
continuation of the earlier plan for the purpose of accommodation, and this
creation of plots would not involve environmental risk.

7. The High Court Division upon hearing the parties observed that there is no evi-
dence or material with regard to filling up the lake in any way, that the
amenities such as park, play ground, school, mosque etc. are clearly marked in
the layout plan, that the open space in front of Road No.20 does not appear to
have been marked for any such purpose, that the benefit of the open space in
front of the lessees was a momentary fortuitous benefit which has been taken
away for the greater benefit of the community at large and that the views taken
by this Division in Chairman, RAJUK and others Vs. Parvin Akter, 7 BLC
(AD) 167 are applicable in the case.

8. Before we enter into the merit of the case, we would like to dispose of a prelim-
inary point raised by the learned Additional Attorney General about the
maintainability of the writ petition. According to the learned Additional Attorney
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
citizens, who are allotees of UMT capable of establishing their rights, and thus, a
PIL on their behalf for alleged public injury or invasion of the fundamental rights
is foreign to the jurisprudential concept.

9. It is pertinent to mention here that one Mahmuda Parveen filed writ petition
No.5121 of 1996 claiming as lessee of a plot in the vicinity of Road No.20 of UMT
on the ground that the creation of new plots on the western edge of the lake is
outside the layout plan and that would" block cross-ventilation between each of
the plots allowing common passage of air and light to pass easily. No other
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 who claimed that the residents being seriously aggrieved by the
alleged unlawful acts appealed to it for appropriate legal assistance. Said
Mahmuda Parveen, however, accepted the judgment of the High Court Division
and did not challenge it in this Division.

10. In this sub-continent the concept of PIL has been developed in India in 1970
for vindicating the interest of common people to protect their fundamental
rights and other related rights who are socially and economically disadvantaged,
not conscious 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 Court of law. Bhagwati, J. in Hussaina Khatoon Vs. State of
Bihar, AIR 1979 S.C. 1369 followed by Khatri Vs. state of Bihar, AIR 1981
S.C. 928 with an 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 concept of PIL -a term used to mean actions filed by a member of
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the public to protect the human - rights of those disadvantaged sections who
could not afford to move the High Court. The High Courts extended it’s arms so
as to secure justice for the poor and weaker sections of the community who are
not in a position to protect their own interests. It is in that sense ’litigation in the
interest of the public'. This type of litigation was invoked almost for the weaker
sections of people and in areas where there was violation of human rights under
Article 21 of the Constitution of India, which provision is in verbatim with Article
32 of our Constitution which provides 'No person shall be deprived of life or
personal liberty save in accordance with law."

11. With the passage of time, the Indian High Courts and the Supreme Court by
their pronouncements expanded the philosophy towards various dimensions,
entertained petitions, extended and exercised jurisdiction in respect of:

a) Where the concerns underlying a petition are not individualist but are
shared widely lay a large number of people (women, Children or bonded
labour);

b) Where judicial law making is necessary to avoid exploitation such as inter-

country adoption, the education of the children of the prostitutes;

c) Where judicial intervention is necessary for the protection of the sanctity

of democratic institutions-independence of judiciary, existence of
grievances redressal forums; and

d) Where administrative decision related to development are harmful to the

resources such as air or water.

12. In BRAC Vs. Professor Mozaffar Ahmed, 54 DLR (AD) 36, Professor
Mozaffar Ahmed, an economist, questioned the validity of a certificate of no
objection issued by the Bangladesh Bank for the incorporation of BRAC Bank
Limited by Bangladesh Rural Advancement Committee in the High Court Division
in the nature of PIL. The High Court Division made the rule absolute. On appeal,
this Division interfered with the judgment of the High Court Division on the
ground of the writ petitioner's locus-standi to maintain the writ petition. M.
Amin Chowdhury, CJ speaking for the majority argued that the writ petitioner
did not mention that how less fortunate people are being protected in moving
the High Court Division and also did not move on behalf of other less fortunate
persons of the society who had no source or means to invoke writ jurisdiction.
Learned Chief Justice concluded his argument observing as under:

"So, the petitioner cannot move the High Court Division under Article 102
of the Constitution to protect the interest of the so-called less fortunate
people in the society."

13. In Dr. Mohiuddin Farooque Vs. Bangladesh, 49 DLR (AD) 1, Mostafa

Kamal, J. argued on the point of 'person aggrieved' within the meaning of
Article 102. It is stated that when a public injury or public wrong or infraction of
a fundamental affecting an in terminate number of people is involved, it is not
necessary, in the scheme of our Constitution, the multitude of individuals who

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has been collectively wronged or whose collective fundamental rights have been
invaded are to invoke the jurisdiction under Article 102 in a multitude individual
writ petitions, each representing his own portion of concern. In so far as it
concerns public wrong or public injury or invasion of fundamental rights of an
interminate number of people, any member of the public, suffering the common
injury or common invasion in common with others, espousing that particular
cause is a person aggrieved. It is further argued:

"If he espouses a purely individual cause, he is a person aggrieved if his

own 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 is very much a primary concern of the Supreme Court which in
the scheme of our Constitution is a Constitutional vehicle for exercising
the judicial power of the people."

14. B.B. Ray Chowdhury J while endorsing those arguments added as under:

"In this backdrop the meaning of the expression "person aggrieved" occur-
ring in the aforesaid clauses (1) and (2) (a) of Article 102 is to be under -
stood and not in an isolated manner. It cannot be conceived that its
interpretation 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 unthinkable that the framers of the Constitution had
in their mind that the 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, illiteracy, ignorance and disadvantaged
condition. It could never have been the "intention of the framers of the
Constitution to outclass them. In such harrowing conditions of our people
in general if socially conscious and public-spirited persons are not allowed
to approach the court on behalf of the public or a section thereof for
enforcement of their rights the very scheme of the Constitution will be
frustrated. The inescapable conclusion, therefore, is that the expression
'person aggrieved" means not only any person who is not only any person
who is personally aggrieved but also one whose heart 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 obligations. It does
not, however, extend to a person who is an interloper and interferes with
things which do not concern him. This approach is in keeping with the
constitutional principles that are being evolved in the recent times in
different countries."

15. In BALCO Employees Union (Regd) Vs. Union of India, 2001 AIR SCW
5135 Kirpal J in his speech argued:

"It will seen that whenever the Court has interfered and given direction
while entertaining PIL it has mainly been where there has been an element
of violation of Article 21 or of human rights or where litigation has been
initiated for the benefit of the poor and the under privileged who are
unable to come to Court due to some disadvantage. In those cases also it
is the legal rights which are secured by the Courts. We may, however, add
that Public Interest Litigation was not meant to be a weapon to challenge
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the financial or economic decisions which are taken by the Government in

exercise of their administrative power. No doubt a person personally
aggrieved by any such decision, which he regards as illegal, can impugn
the same in a Court of law, but, a Public Interest Litigation at the behest of
a stranger ought not to be entertained. Such a litigation per se be on
behalf of the poor and downtrodden, unless the Court is satisfied that
there has been violation of Article 21 and the persons adversely affected
are unable to approach the Court."

16. Recently we have noticed that there is a tendency of filing petitions in the
nature of PIL and the High Court Division has been entertaining such petitions
without satisfying the criteria for entertaining such petitions and making interim
orders preventing the Government or the local authority in undertaking
development works of the country. It is also seen that after filing petitions, the
lawyers are pretending to propagate to the electric and print media focusing to
the orders of the Court, the motive is discernible which is deprecated.

17. In S. P. Gupta Vs. Union of India, 1981 (Supp) SCC 87 Bhagwati J.

observed:

"But we must be careful to see that the member of the public, who
approaches the Court in cases of this kind, is acting bonafide and not for
personal gain or private profit or political motivation or other oblique
consideration. The Court must not allow its process to be abused by
politicians and others to delay legitimate administrative action or to gain a
political objective -------. It is also necessary for the Court to bear in mind
that there is a vital distinction between locus-standi and justifiability and it
is not every default on the part of the state or a public authority that is
justiciable. The court must take care to see that it does not overstep the
limits of its judicial function and trespass into areas which are reserved to
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
new jurisprudence which the Court is evolving a jurisprudence which
demands judicial statesmanship and high creative ability."

18. In Janata Dal Vs. H.S. Chowdhury, (1992) 4 SCC 305, the above views
have been reaffirmed in the following language:

"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
approach the Court to wipe out the tears of the poor and needy, suffering
from violation of their fundamental rights, but not a person for personal
gain or private profit or political motive or any oblique consideration.
Similarly a vaxatious petition under the colour of PIL brought before the
Court for vindicating any personal grievances, deserves rejection at the
threshold."

19. Petitions of the nature are being filed at random and a sense of feeling at one
time has been developed that the filing of PIL is not regarded to become
'Publicity Interest Litigation' or 'Private Interest Litigation'. The PIL, initially
disapproved by judges with traditional bent of mind had over the years grown
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into unmanageable proportions opening up flood gates of litigation-some quite

legitimate whilst some were nothing more than sheer abuse of judicial process.
Thus there is no gainsaying that 'the Public Interest Litigation' was essentially
meant to protect basic human rights of the disadvantaged section of citizens
and a jurisprudence which 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 poverty, lack of education, helplessness, social dis -
abilities or economic paucity cannot seek legal redress for the violation of his
rights, fundamental or legal in the Court of law. There is, thus, need to
reemphasize the parameters within which the High Court Division should extend
its jurisdiction. The High Court Division should guard to see that its' processes
are not abused by any person or lawyer and exercises its jurisdiction sparingly.

20. Now the point to be considered is the parameter of exercising the discretion.
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 authori ty or public authority or
executive excess causes a legal injury to a specific class or group 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 justiciable. If
grievances of those people are unredressed due to poverty, lack of education,
helplessness, social disability, only then the Court would enter tain a petition if a
public spirited person or organisation comes to Court on their behalf. In other
words, we would like to make it clear that 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 wel comed. The litigation must have been ini tiated
for the benefit of the poor or any number of people who have been suffering the
common injury but their grievances can not be redressed as they are not able to
reach the Court.

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 inva sion and accept such act or omission
without protest, no member of the public or organisation making the relief has
suffered a secondary public injury can maintain any petition against such act or
omission, or when an act or omission is of such a nature which shocks the
judicial conscience, the Court should extend its jurisdiction.

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
should be avoided. None of the contingencies discussed above is present in this
case and thus the writ petition is not maintainable. This disposes of the
preliminary objections as to the maintainability of the writ petition raised by the
learned Additional Attorney General.

23. Mr. Fida M. Kamal, learned Counsel appearing for the appellant argued that
the High Court Division erred in law in relying upon the case of Parvin Akter in
failing to appreciate the ratio decendidi of the case of Rajdhani Unnayan
Kartipakha and another Vs. Moshiul Islam, 53 DLR (AD) 79, which is
applicable in this case, and the case of Parvin Akter is quite distinguishable. It
is further contended that the High Court Division failed to appreciate that there
can not be any revision of layout plan without first adopting an improvement
scheme. The findings of the High Court Division that the alteration of the open
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space being not marked as public amenity is lawful is erroneous, inasmuch as,
annexure-B to the 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 Town Improvement Act, 1953. Learned counsel further
urged that the findings of the High Court Division that the benefits of open
space are momentary fortuitous is erroneous as it ignores that the petition was
filed in public interest to protect the water body of Uttara lake and associated
rights. It is finally argued that the High Court Division erred in law in failing to
consider that a road 20 of feet in width is being used as pedestrian road only as
opposed to vehicular road as per provisions of the Town Improvement Act.

24. Learned counsel based his submission relying upon annexures-B & C, to the
writ petition and tried to impress us that annexure-B is a Master Plan of Sector
3, UMT, where the lake side adjacent to Road No.20 shows a narrow strip of land
which has been left out by the respondent No.2 in the original Master Plan as
space for development park with a view to enhance the view of the water body.
The writ petitioner claimed that if the proposed scheme is implemented, there
would be degradation of the environmental and health hazard to the residents of
the vicinity and that the southern side of the lake would be filled up for
constructing new Road No.22 for connecting it to Road No.20 which is a
deviation of the original Master Plan.

25. Mr. A.F. Hasan Ariff, learned counsel appearing for the respondent No.2
argued that the learned counsel for the writ petitioner confused the expression
'Master Plan' and on a misconception of law claimed that the respondent No.2
changed the original master plan. According to the learned counsel, under no
stretch of the imagination, exhibit-B can be taken as a Master Plan which is
nothing but a revised layout plan and the authority has revised it in accordance
with the provisions of the Act. Learned counsel further contended that the
expression Master Plan has not been defined in the Act or in any other laws.
According to the learned Counsel, there is distinction between "a Master Plan"
and "a layout Plan", and in support of his contention he has referred to 83AM-
JUR, 2nd Edition (Zoning and planning) at page 61.

26. This takes us to consider whether, annexure-B, to the writ petition is the orig -
inal master plan of Sector-3 which has subsequently been changed by the writ
respondent No.2 in the revised layout plan in order to allot plots to the new
allottees. What constitutes a 'Master Plan' and 'comprehensive zoning plan' have
been explained in 83 AM-JUR as under:

"Master plans serve as general guides that recommend area development

and proposed future land use and zoning. Such a plan may be called a
master plan or a comprehensive plan. Not only is the development of a
local comprehensive zoning plan a valid exercise of power by the gov-
ernment, but an enabling statute may require that zoning be made in
accordance with a plan. A master plan essentially surveys land use as it
exists and makes recommendations for future planning, and it may
include maps and other descriptive materials which document the various
land uses present within the jurisdictional area.

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A "comprehensive zoning plan" is one which applies to or covers a

substantial or wide geographical area, and must be designed to control
and direct the use of land and buildings according to present and planned
future conditions, to accomplish as far as possible the most appropriate
uses of the land consistent with the public interest and the safeguarding of
the interests of individual property owners. A municipality may establish a
comprehensive land-use plan and effectuate that plan through a scheme
of comprehensive zoning regulations."

27. We find from the above that a master plan is nothing but a guide for
proposed future land use recommending the development of the area and
zoning. It generally surveys land use as it exists and recommends for future
planning. In the Act, the expression 'Master Plan' has not been defined. There is
however, reference of 'Master Plan' in sections 73, 74 and 75. Section 73 speaks
about preparation of a 'Master Plan' in respect of an area for carrying out
development of the land in phases. It is said, a master plan includes maps and
such descriptive matters to illustrate the sites of proposed roads, public and
other buildings, fields, parks, pleasure grounds and other open spaces. A master
plan must be published 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 any person aggrieved by the preparation of the same
and the Government may modify it if there is merit in the objection. Though this
'Master Plan' is a conclusive evidence after it is approved by the Government as
provided therein but it can also be amended or altered by the Katripakkha under
section 74(2) from time to time with the approval of the Government. Section 75
relates to use of land within the 'Master Plan' area for any purpose other than
that laid down in the master plan by any person with prior permission of the
authority.

28. We find from the above that the Town Authority or the Municipality or the
Katripakkha draws a comprehensive plan for the development of the township
by phases after surveying the entire land for future planning. This includes
roads, 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 no dispute that annexure-'B' is a photo copy of a layout plan
and the same does not include descriptive matter to infer anything that the
open space has been kept for park or pleasure ground for the residents of the
vicinity of Road No.20. It has not been published in the official gazette and
therefore, it does not fall in the category of 'Master Plan' as indicated in section
73.

29. Clause (c) (II) of section 38 of the Town Improvement Act, 1953 authorizes
the Kartripakkha either on a representation or otherwise for the purpose of
developing and improving any area to pass a resolution to that effect and may
then proceed 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 accommodation and in doing so it has not violated any law. As observed
above, exhibit-B is a photo copy of a layout plan and the learned counsel for the
writ petitioner has frankly conceded that exhibit-B is not the original Master Plan
of Sector-3. Though an open space is seen in it by the lake side towards the
western side of Road No.22, but this layout plan does not indicate as to the
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purpose for which it has been kept. The writ petitioner did not call for the
original layout plan of Sector-3 to show that this narrow strip of land has been
kept for development of Park to enhance the view of the water body as lake.
Thus, we find no substance in the contention that Annexure-B is a master plan of
Sector No.3 and that the narrow strip has been kept for Park or for any other
purposes other than for housing purpose.

30. Section 40 of the Act relates to matters for the improvement schemes.
Clause (b) of section 40 authorizes the Katripakkha to laying out or relaying out
of an area for implementing a scheme for development purposes. Admittedly
the respondent No.2 revised the layout plan for using the vacant space for
housing 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. Kamal, however, argued that this section 40 has been wrongly
applied by the High Court Division and this alteration has been made in violation
of sections 69, 73 and 74 of the Act. Section 69 deals with matters relating to
plans for public streets or open spaces in regard to any area within the city or
neighbourhood of the city where the Act applies. This section has no application
in view of the fact that the lay out plan of Sector-3 has admittedly been
prepared long before the institution of the writ petition as will be evident from
Annexures-B & C to the writ petition. The master plan of UMT has been prepared
long long-ago and after approval of the master plan, the Kartripakkha has taken
up for the development of the UMT phase by phase. The formalities for filing
objections against the master plan or part thereof as required under sub-section
(4) of section 73 has long been elapsed and the blaster plan has been approved
by the Government before 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 the development of the area. Therefore, we find
no substance in the contention of the learned Counsel for the appellant that
there is violation of sections 69, 73 and 74 of the Act.

31. Now the question is whether as a result of revising the layout plan, there will
be environmental degradation due to congestion of the area by reason of
conversion of the narrow strip land into residential plots. True, by reason of
conversion of the vacant space there might be congestion in the area but this
preparation of relaying out plan is within the power of the respondent No.2, and
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
fundamental rights of the writ petitioner. It is also difficult to sustain to the view
that this congestion has caused environmental degradation of the locality in the
absence of law in that regard.

32. Learned Counsel tries to make out a case that this revision of the layout plan
is violative of section 54, inasmuch as, under this provision roads or strips of
land of 20 feet in width is intended for pedestrian traffic only as opposed to
vehicular road and since this vacant space has been converted into housing
plots, this road which is meant for pedestrian traffic will be used for vehicular
purposes. Section 54 deals with matters relating to existing streets and
alteration of the existing one providing that if the authority requires any alter-
ation the width of the street should not be reduced to forty feet if it is intended
to be used for vehicular traffic and twenty feet if it is intended for pedestrian
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traffic. In the proviso it is provided that the width of an existing street need not
be increased if the Katripakkha considers it impracticable and that the authority
may in case of necessity install 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 been made in the Act that a street having less
than twenty feet in width be indented for pedestrian traffic. The alteration of the
existing street is not the case of the writ petitioner and thus we find no merit in
the contention of Mr. Fida M. Kamal.

33. On a delving into the Act it is. noticeable that as per scheme, the katripakkha
has been given power to revise, alter or amend the layout plan or the master
plan, in case of necessity, for the purpose of development of an area and this
improvement of any locality is a continuous process and for the improvement
and accommodation of more people, an unutilized land acquired for habitation
purpose can be utilized at any time. Section 73 of the Town Improvement Act
authorises the respondent No.2 to prepare a master plan for an area indicating
the manner of using land for carrying out development by preparing maps and
such descriptive matter to illustrate the proposals delineating proposed roads,
buildings, fields, parks and this master plan has no nexus with a development
scheme to be undertaken in a particular zone under section 40 of the Act.

On a combined reading of sections 38, 40 and 73 shows that an improvement

scheme in respect of a particular zone or area is a continuous process and the
continuation of such scheme does not amount to violation of any of the
provisions of the Act.

34. Annexure-E, is the report of the Ministry of Environment which shows that the
lake has not been filled up. What is more, annexure-1 is the layout plan of
Sector-3, which was prepared on 14th November, 1983 and in the said layout
plan, some plots had been shown in between the Road No.20 and the lake.
Annexure-2 is the revised layout plan of Sector 3, which was prepared on 30th
October, 1995 earmarking 26 housing plots. These plots were created in the
revised plan before filing the writ petition in 1997. In view of the above, we find
no merit in the contention of Mr. Fida M. Kamal that the adoption of the revised
layout plan has been made without following the provisions of the Act.

35. Learned Counsel has referred to an unreported decision in Civil Appeal

No.148 of 2002 in support of his contention. In that case, the writ petitioner
called in question the unauthorized construction of a multi-storey building name-
ly 'Udayan Market' undertaken by the Dhaka City Corporation at Bangabandhu
Avenue which was a site reserved for car parking center as shown in the master
plan of RAJUK. The writ petition was filed on the ground that if the multistory
shopping complex is constructed, the environment of the area will be
threatened and that the project was not undertaken for the welfare of the
common people. This Division upon hearing the parties allowed the appeal
declaring that the construction of Udayan Market on the proposed land ear-
marked for public car parking in the master plan had been undertaken
unlawfully, for collateral purposes, and that it would be unlawful for any one to
use the land for any purpose other than that laid down in the master plan unless
such person was permitted to do so. The facts of the case is quite
distinguishable from the facts of this case.
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36. There is no allegation that if housing project is implemented on the vacant

space, there will be environmental problems in the vicinity depriving the
residents from the 'lawful rights to the enjoyment of a sound and healthy
environment. There is also no allegation that in case of implementation of the
housing project there will be ecological affect in the locality. Though there is
allegation that by the impugned layout plan, the narrow strip of the lake side
land be filled up and plots be reclaimed and at the same time, the southern side
of the lake would also be filled up for constructing a new road being No.22 for
connecting it with Road No.20, the High Court Division upon perusal of the
materials on record came to the conclusion that there is no evidence or material
with regard to the filling up of the lake in any manner.

37. In Mushiul Islam (53 DLR (AD) 79), admittedly a vacant space kept for use
as park, play ground, school, mosque and community center in Sector 4, UTM
was converted into residential plots. The High Court Division found that this
alteration was made illegally and the layout plan was illegally changed. This
Division maintained the judgment observing that section 2(h) of the Act
authorities RAJUK to alter the layout plan, which power must be exercised for
the purpose of improvement. The conversion of park and open space enjoyed by
the surrounding allottees of a planned township cannot be converted into
residential plots. In the facts of the given case, this Division rightly maintained
the judgment of the High Court Division and this decision is quite distin-
guishable.

38. In Parvin Akter (7 BLC (AD) 167), a writ petition was filed by Parvin Akter
challenging the action of the RAJUK in implementing a project in Gulshan Model
Town by creating plots on the bank of the lake and constructing a road for
access to the new plots adjacent to her house. It is claimed that if the
construction was made by the new allottees, greeneries and vegetation would
be destroyed arid she would be deprived of the view of the lake and greeneries
and her privacy would also be disappeared rendering it impossible to reside on
her constructed building. The High Court Division made the rule absolute. This
Division set aside 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 Gulshan Model Town. It is further observed that a
residential model town is developed according to the detail area plan commonly
known as layout plan prepared to cater to the requirements of the time, and
that there is scope for change and modification of the layout plan from time to
time to cope with and cater to the needs of a first growing metropolitan capital
city. The RAJUK, in the premises, modified the layout plan and converted the
narrow strip of land between the Parvin Akter's land and Gulshan lake. There is
no evidence that the lake has been or is being filled up for the project. The
narrow strip of the vacant land has been converted into plots which is an
extension of Gulshan residential plots by altering the layout plan and this would
not adversely affect the environment of Gulshan or the greeneries of the lake.
The facts of the case of Parvin Akter are almost in resemblance with the facts of
the present case. In view of the above, the High Court Division has rightly
followed the case of Parvin Akter.

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39. There is no material in support of the allegation that the lake side land
adjacent to Road No.20 would be filled up or that process for allotment of plots
of the lake side land has been started deviating the original master plan and
that the southern side of the lake would be filled up for constructing a new road
being Road No.22. However, we have reason to believe that the implementation
of the project would render the area congested one, which in turn affect the
residential trait of the UMT. It can not altogether be brushed aside that if this
process of allotment of plots is implemented without any check, one day the
planned UMT would be converted into an unplanned residential area, in which
event, the purpose for which UMT had been under taken would be bound to
shatter. This sort of scheme would also deprive the residents of the vicinity from
a healthy atmosphere.

40. What is more, these new plots had not been allotted at the initial stage along
with it’s surrounding plots. The authority cannot allot plots of a residential area
capriciously without following the procedures. We have been noticing in a
number of cases that there has been a rise in the tendency of converting the
narrow strips and vacant spaces which have been kept beside the lakes of
Banani, Gulshan, Baridhara, Nikunja and Uttara Model Town and they are being
allotted as residential plots to the selected persons on political or other
considerations. If this process is allowed to continue one day it would be found
that the greeneries and vegetation would be covered by multistorey buildings
rendering the vicinity a congested area resulting it impossible for the city
dwellers to lead a normal habitable life in those areas and this would have
affected environmental degradation.

41. If we look at society from a historical perspective, we realise that protection

and preservation of the environment has been integral to the cultural etho of
most human communities. The international community has increased its
awareness of the relationship between environmental degradation and human
rights abuses. Environmental protection encompasses not only pollution but also
sustainable development and conservation of natural resources and the eco-
system. Our Government is increasingly supportive of stringent environmental
laws and enacted evsjv‡`k cwi‡ek `~lb msi¶b AvBb, 1995 , Article 31 of the
Constitution 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 accordance with law. The citizens have the inalienable right to be
treated in accordance with law. If these rights are taken away compensation
must be paid. 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 environment.

42. It is thus apparent that environmental and human rights are inextricably
linked. Despite the above law, protection and preservation of environment is still
a passing issue. The RAJUK taking advantage of its powers conferred by the Act
is converting the open spaces initially kept beside the Gulshan, Baridhara,
Banani, 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 should be transparency in the system of allotment of such
plots. Mr. Ariff has failed to satisfy us what procedures for allotment of these
plots are being followed? Admittedly the converted plots from the vacant open
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spaces had not been allotted at the time of allotment of surrounding plots of the
locality. Taking 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 constructions without prior permission. Allotment of selected
plots by pick and choose basis without following objective procedure is arbitrary
and deprecated. Under the circumstances, we feel it proper to see that the
Katripakha has not exercised its powers arbitrarily while dealing with such
vacant spaces. If the authority decides to use an unutilized land acquired for
habitation purpose, the 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 have always been considered to have an overriding duty to
maintain public confidence in the administration of justice-often referred to as
the duty to vindicate and uphold the majesty of law. Due administration of
justice has always been viewed as a continuous process, not confined to
determination of the 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 can not be abdicated or diluted by reason of
improper application. It is recognized in the public interest that the authority
acting by virtue of statutory powers can not exceed his authority. In view of the
above, we feel it proper to direct the respondent Nos.1 and 2 to carry out the
following guidelines:

a) to make survey of the aforesaid lakes on the basis of the original master
plans drawn and in its absence, the original layout plans and demarcate
the areas of the said lakes by affixing permanent pillars.

b) RAJUK to take immediate step not later than 6 months from the date of
receipt of this judgment to construct Mk-ways on the banks around the
Gulshan, Baridhara, Banani, Nikunja and Uttara lakes.

c) to serve notices upon the encroachers to vacate the encroached lands,

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 the costs of such eviction be realised from them by filing cases
under the Public Demand Recovery Act, 1913.

d) to close down all drains and other pits of filth that pass into those lakes.

e) the residential plots created from the vacant spaces beside those lakes
prior to this pronouncement will be allotted in accordance with the proce-
dure being followed in the allotments in respect of old plots were made.

f) to transplant trees on the banks bordering the lakes.

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g) if these directions are not complied with, the Chief Metropolitan Magistrate
will prosecute the officers responsible.

The appeal is dismissed with the above observations without any order as to costs.

Ed.

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