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Judicial Activism in the Arena of Environmental Law of Bangladesh

By mahbubani Apr 23, 2013 21681 Words
AN ASSIGNMENT ON

“JUDICIAL ACTIVISM IN THE ARENA OF ENVIRONMENTAL LAW OF BANGLADESH”

Content…

TopicPage no.

1. Prologue 1

2. Judicial Activism 3

3. Judicial Restraint 8

4. Difference between Judicial Activism & Judicial Restraint 9

5. General Development and Environment Context of Bangladesh12

6. Major Environmental Issues Facing Bangladesh 14

7. Environmental Law in the Legal Regime of Bangladesh 15

8. Development of Judicial Activism in the Environmental Regime & the ECA 16

9. Administration of Environmental Justice: The Court Cases23

10. Environmental Nuisance should be Mitigated 24

11. Right to Environment 24

12. Access to Justice: Opening up the Horizon of Public Interest Litigation (PIL) 25

13. Right to Participation 25

14. Suo motu Rule against Grabbing Land of Public Garden 26

15. Protecting River from Encroachment 26

16. Checking Industrial Pollution 27

17. Vehicular Pollution to be Reduced 28

18. Judicial Decisions in the Issue of Environment of Bangladesh 29

19. Epilogue 91

Prologue:

The issue of environment pollution has become a burning one with the increase of global warming throughout the whole world especially in Bangladesh. The Supreme Courts of different countries are coming forward to meet this issue at the frequent insistence of the environmentalist organizations which are very watchful upon environmental disaster. Though natural calamities cannot be resisted, man-made disasters can be checked to judicial activism i.e. judicial enforcement. With the growing rate of environmental pollution in Bangladesh, judicial activism in the arena of environmental law has been getting stronger here. Before the introduction of the Public Interest Litigation (PIL), there didn’t have any direct access to the court for enforcing environmental issues, but after the introduction of the PIL, environmental issues can directly be settled by the courts.

The United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro from 3 to 14 June 1992 recognized the entitlement of human beings to a healthy and productive life in harmony with nature[1]. The threshold of the Rio Declaration was the recognition of right to development[2] and more importantly sustainable development. With the adoption of Rio, the global community committed to integrate environmental issues into mainstream economic and social policy[3] and reduce and eliminate unsustainable patters of production and consumption[4].

Commitments recorded in the Rio declaration call for legal and judicial activism. When commitment for sustainable development suffers judicial review can be sought on the basis of the Rio principles of ‘common but differentiated responsibilities’[5], ‘polluters pay’[6], ‘precautionary approach’[7] and ‘EIA’[8]. While the Rio declaration in Principle 11 requires the states to enact effective environmental legislation and standards, access to judicial and administrative review process becomes relevant[9] to uphold people’s rights that such laws would endure. Right to participation and access to environmental decision making process[10] need express legal recognition that the judiciary can safeguard in appropriate instance.

The post-Rio developments in the legal and judicial area of Bangladesh have showed respect to the Rio commitments and also the framework of Agenda-21 that requires protection of fragile eco-system and resources.

This paper would highlight on the legal and judicial activism in Bangladesh that have contributed in promoting sustainable development and environmental management as pledged by the global community in various international conventions, treaties and protocols. Judicial Activism:

Judicial activism is a political term used to describe judicial rulings that are suspected to be based upon personal and political considerations other than existing law. Judicial restraint is sometimes used as an antonym of judicial activism. The term may have more specific meaning in certain political contexts. Concerns of judicial activism are closely tied to constitutional interpretation, statutory construction, and separation of powers.

Definition
Judicial activism refers to “a philosophy of judicial decision-making whereby judges allow their personal views about public policy among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”[11]

“If to resolve the dispute, the Court must create a new rule or modify an old one that is law creation. Judges defending themselves acquisitions of judicial activism sometimes say they don’t make law, they only apply it. It is true that in our system, judges are not supposed to and generally don’t make new law with the same freedom that legislatures can and do; they are, in Oliver Wendell Holmes’s phrase, ‘confined from molar to molecular motions.’ The qualification is important, but the fact remains that judges make, and do not just find and apply law.”[12]

"Judicial activism" is frequently used in political debate without a clear definition, which has created some confusion over its precise meaning. Bradley Canon posited six dimensions along which judge courts may be perceived as activist are:[13] • Majoritarianism— This dimension takes into account the degree to which policies adopted through the democratic process are judicially overturned. • Interpretive stability— This dimension takes into account the degree to which court decisions alter earlier decisions, doctrines, or constitutional interpretations. • Interpretive fidelity— This dimension takes into account the degree to which constitutional provisions are interpreted contrary to the clear intentions of their drafters, or the clear implications of the language used in the provision. • Substance/democratic process— This dimension takes into account the degree to which judicial decisions make substantive policy, as opposed to acting to preserve the democratic political process. • Specificity of policy— This dimension takes into account the degree to which a judicial decision establishes policy itself, as opposed to leaving discretion to other agencies. • Availability of an alternate policymaker— This dimension takes into account the degree to which a judicial decision supersedes or inhibits serious consideration of the same problem by other government agencies.

Origins
Arthur Schlesinger Jr. introduced the term "judicial activism" to the public in a January 1947 Fortune magazine article titled "The Supreme Court: 1947."[14] According to Keenan Kmiec, in a 2004 article in California Law Review:

“Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the "Judicial Activists" and Justices Frankfurter, Jackson, and Burton as the "Champions of Self Restraint." Justice Reed and Chief Justice Vinson comprised a middle group.”[15]

Debate
Detractors of judicial activism charge that it usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy.[16] They argue that an unelected or elected judicial branch has no legitimate grounds to overrule policy choices of duly elected or appointed representatives, in the absence of a real conflict with the constitution.[citation needed] In some instances, government regulation by appointed officers in government agencies are overturned by elected judges.

Defenders of judicial prerogatives say that many cases of so called "judicial activism" merely exemplify judicial review, and that courts must uphold existing laws and strike down any statute that violates a superseding law. For example, ruling a statute is unconstitutional because it conflicts with the Constitution of a jurisdiction. However, detractors of judicial activism retort that neither democracy nor the rule of law can exist when the law is merely what judges presently say it should be.

Defenders counterclaim that indeed this is precisely what the role of the judiciary is, namely to interpret the law. Detractors argue that the discretion of judges must be limited e.g. by the intentions of lawmakers and appointed or elected government officers, or else any group of people engaged in any behavior could become a judicially protected minority, and any law could be subverted by the predilections of elected or appointed judges.

Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e. there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers.[17] Moreover, they argue that the judiciary strikes down both elected and unelected official action, that in some instances acts of legislative bodies reflect the view the transient majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down, that the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since corporations and the wealthy are unable to dictate their version of constitutional interpretation with threat of stopping political donations.

Examples
The following have been cited as examples of judicial activism: • Mercein v. People - 1840 Connecticut transfers absolute sovereignty over children from parents to the State • Dred Scott v. Sandford - 1857 Supreme court ruling that ruled that people of African descent imported into the United States and held as slaves, or their descendants—whether or not they were slaves—were not protected by the Constitution and could never be citizens of the United States • Plessy v. Ferguson - 1896 Supreme Court ruling declaring racial segregation as constitutional • Brown v. Board of Education - 1954 Supreme Court ruling ordering the desegregation of public schools • Griswold v. Connecticut - 1965 Supreme Court ruling striking down a Connecticut ban on contraception for unmarried individuals • Loving v. Virginia - 1967 Supreme Court ruling striking down Virginia's ban on interracial marriage • Roe v. Wade - 1973 Supreme Court ruling establishing a constitutional right to abortion • Bowers v. Hardwick - 1986 Supreme Court ruling upholding the constitutionality of Georgia's sodomy law. • Bush v. Gore - 2000 Supreme Court ruling that resolved the 2000 presidential election in favor of George W. Bush. • Lawrence v. Texas - 2003 Supreme Court ruling striking down Texas's criminalization of sodomy • In re Marriage Cases - 2008 California Supreme Court ruling establishing a constitutional right to gay marriage • Citizens United v. Federal Election Commission - 2010 Supreme Court decision overturning Congressionally enacted limitations on corporate political spending[18]

Judicial Restraint:

Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional.[19] It is sometimes regarded as the opposite of judicial activism.

In deciding questions of constitutional law, judicially-restrained jurists go to great lengths to defer to the legislature. Judicial restraint requires the judge to uphold a law whenever possible. Former Associate Justice Felix Frankfurter, a Democrat appointed by Franklin Roosevelt, is generally seen as the "model of judicial restraint."[20]

Judicially-restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges. When the late Chief Justice Rehnquist overturned some of the precedents of the Warren Court, Time Magazine said he was not following the theory of judicial restraint.

Difference between Judicial Activism & Judicial Restraint:

Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court justices' interpretations of the United States Constitution; justices appointed by the President to the Supreme Court serve for life, and thus whose decisions shape the lives of "We the people" for a long time to come.

Judicial activism is the view that the Supreme Court and other judges can and should creatively (re)interprets the texts of the Constitution and the laws in order to serve the judges' own visions regarding the needs of contemporary society. Judicial activism believes that judges assume a role as independent policy makers or independent "trustees" on behalf of society that goes beyond their traditional role as interpreters of the Constitution and laws. The concept of judicial activism is the polar opposite of judicial restraint.

Judicial restraint refers to the doctrine that judges' own philosophies or policy preferences should not be injected into the law and should whenever reasonably possible construe the law so as to avoid second guessing the policy decisions made by other governmental institutions such as Congress, the President and state legislatures. This view is based on the concept that judges have no popular mandate to act as policy makers and should defer to the decisions of the elected "political" branches of the Federal government and of the states in matters of policy making so long as these policymakers stay within the limits of their powers as defined by the US Constitution and the constitutions of the several states.

Marbury v. Madison, one of the first US Supreme Court cases asserting the power of judicial review, is an effective argument for this power; however, it lacks direct textual basis for the decision. John Marshall managed to get away with this deficiency because of the silence on many issues and the vague wording of the Constitution. Marshall was also the first to interpret the Constitution loosely, also known as judicial activism. During his term as Supreme Court Chief Justice, Marshall was also successful in loose constructionism through other landmark Supreme Court cases such as Gibbons v. Ogden ("Emancipation Proclamation" of commerce), and McCulloch v. Maryland (whose decision stated that the states cannot tax a federal bank). These landmark decisions were the basis and the precedent for future Supreme Court cases, and had also provided a means through which the Supreme Court can question the law and even possibly change different facets of life affecting the present and future of "We the people."

Liberals and Democrats tend to favor judicial activism as it opens new doors to interpretation and experimentation. However, those that favor judicial restraint on the other hand, and thus favor the status quo and the strict construction of the Constitution are conservatives and Republicans. Two landmark Supreme Court decisions that strictly interpreted the Constitution for its literal meaning were Dred Scott v. Sanford and Plessy v. Ferguson. In the Dred Scott case, the Supreme Court ruled that African Americans did not have the right to sue for their freedom, since they were seen strictly by the law as property and not even citizens of the United States. As well, in Plessy v. Ferguson the Court ruled that segregation of public schools was not unconstitutional, even though African Americans were still seen as equal citizens due to the 14th Amendment to the Constitution ("separate but equal"). However, this particular case was then overturned by Brown v. Board of Education, Topeka, Kansas in 1954. The Brown decision, unlike that of Plessy v. Fergusion and Dred Scott v. Sanford expressed judicial activism and ruled racial segregation unconstitutional.

Many will protest that the people do not elect the Supreme Court Justices and therefore the Supreme Court should not have the power of judicial activism and change the law of the land. However, as one critic points out, "No institution in a democratic society could become and remain potent unless it could count on a solid block of public opinion that would rally to it's side in a pinch." However, anticipating the nominees to the Supreme Court most likely to be forwarded to the US Senate for confirmation by President George Walker Bush, since Bush is a conservative, he is most likely to favor the philosophy of judicial restraint. Clearly, the Supreme Court is ultimately responsible to the will of the people, and the future ramifications of said choices may indeed lean toward judicial restraint more often than judicial activism, thus favoring the status quo and earlier precedents set by previous Supreme Court decisions. By maintaining independence from politics, the Justices avoid the major problems of political parties and party platforms. Furthermore, the Supreme Court's small size allows the Constitution to speak with a unified voice throughout the country.

General Development and Environment Context of Bangladesh:

Bangladesh with a total area of 147570 sq. km is home to some 140 million people of which 49 percent are women. The country’s network of 230 rivers runs across 24140 km[21]. Forests comprise 14 percent of the total land area.

Eighty percent of the population is rural. One half of the population lives in poverty and one third in extreme poverty. A further 20 percent of the population are tomorrow’s poor; those who will join the ranks of the poor given the current trends of development and ecological degradation.

The agrarian economy of Bangladesh accounts for one-third of the GDP and employs two-thirds of the labour force[22]. The fisheries sector employs about 1.2 million people[23] while the employment in the forests sector is about 2 percent of the total labour force[24]. Fish still remains the major source of proteins for 60 percent Bangladeshis.

Life and livelihoods in Bangladesh, especially for the poor, depends deeply on nature. Any undue interference with water, land, forest, fishery and other environmental resources would inevitably impact the lives of the people of whom 47.5 percent are income poor and 76.9 percent capability poor[25]. The relationship of the people of Bangladesh with nature cannot be overemphasized and can be stated from the words of the Secretary General of the UN Mr. Kofi Anan.

“The great majority of Bangladeshis live in rural areas, on the frontlines of resources management, natural disaster and environmental awareness. For them the relationship between human beings and the natural world is a daily reality, not an abstract idea. Our biggest challenge in this new century is to take an idea that seems abstract sustainable development and turn it into a daily reality for the entire world’s people."[26]

Over time, the gradual degradation of resources particularly land, contamination of water, loss of fisheries, traditional species and depletion of forests became visible in Bangladesh with adverse impact on life and livelihood. In the last decade or so, environmentalists in Bangladesh, the state organs and the citizens groups have rightly identified the depletion of environmental resources as a major cause of poverty in the country.

There are certain environmental concerns and factors that are the result of activities originating beyond the frontiers of Bangladesh. These include legal questions relating to the use of natural resources like the waters of shared rivers, environmental hazards like the frequent floods, droughts and salinity, global warming, climate change and so on. The efficacy of the environmental legal system in certain areas is dependent on attitudes of neighboring countries and so cannot be redressed unilaterally. The Constitution of Bangladesh affirms commitments to international laws and principles, and Bangladesh is a signatory to most major international conventions, treaties, and protocols on environment.

Major Environmental Issues Facing Bangladesh:[27]

A. Regional/Global:

• Ecological changes due to share water disputes
• Maritime boundary dispute and a weaker regime on marine resources • Greenhouse effect and its consequence on Bangladesh, global warming and climate change • Refugees and migration
• Ecological effect caused by trans-boundary acts
• International trade and environmental regimes such as Trade Related Intellectual Property Rights (TRIPs), General Agreement on Tariff and Trade (GATT), World Trade Organization (WTO), Climate Change Protocols, Convention on Biological Diversity and so on.

B. National:

• Population and poverty
• Degradation of resources (inadequate policies)
• Conflict of development with environment; illiteracy vs. ignorance • Pollution of water, air and soil
• Destruction of mangrove, tree cover and firewood
• Loss of fisheries
• Unplanned human settlement
• Unplanned urbanization and industrialization
• Loss of wildlife
• Natural hazards (also to include river erosion)
• Contamination of ground water

Environmental Law in the Legal Regime of Bangladesh:

Sources of Environmental Laws:

The main sources of environmental law are the Constitution, statutory laws and by-laws, customs, traditional perceptions and practices, international conventions, treaties and protocols.

An investigation into the statutory laws prevailing in Bangladesh would reveal that there are about 187 laws that deal with or have relevance to environment. The compartmentalized administration of the statutory enactment would place the laws on environment under several heads. These would include, land use and administration, water resources, fisheries, forestry, energy and mineral resources, pollution and conservation, wildlife and domestic animals, displacement, vulnerable groups, relief and rehabilitation, local government, rural and urban planning and protection. The laws on physical environment do address issues like occupational rights and safety, public safety and dangerous substances, transportation and safety, cultural and natural heritage and so on.

The environmental legislation are sectorally compartmentalized especially the substantive and administrative rules. The procedural rules for the Courts to administer these laws would be derived mostly from the same general codes, e.g., the Civil Procedure Code, 1908, the Criminal Procedure Code, 1989 and the Evidence Act, 1872.

Development of Judicial Activism in the Environmental Regime & the ECA:

The law that deals specifically with environment is the Environment Conservation Act (ECA), 1995[28]. The Act has come into force since the June 1995 and to some extent has recognized the Rio principles of precaution, polluters’ pay and people’s participation. The ECA has replaced the earlier Environment Pollution Control Ordinance, 1977 and has added new dimension to environment management by making a shift from ‘pollution control’ to ‘environment conservation’. The recent amendment of the Act in 2002 has given the provisions of the law overriding effect over all other laws[29].

According to section 2(d) of the ECA environment shall include water, air, land and physical properties. The inter relationship among and between these components of environment and human and other living beings, plants and micro-organisms are also included in the broader definition of environment.

The ECA has established the Department of Environment (DoE) and has authorized its Director General (DG) to take all such steps as are necessary for the conservation of environment, improvement of environmental standard and control and mitigation of pollution[30]. In line with Section 11 of the Agenda 21 that calls for conservation and management of resources for development, the ECA in Section 5 has authorized the government to declare areas of great ecological importance as Ecologically Critical Area. Such legal authority would allow the government to declare fragile eco systems as critical or protected areas and bring them under special management system.

Section 5 of the ECA reads as follows:

“Declaration of Ecologically Critical Area – (1) If the Government is satisfied that due to degradation of environment the eco-system of any area has reached or is threatened to reach a critical state, the Government may, by notification in the official Gazette, declare such area as ecologically critical area.

The Government shall specify, in the notification provided in subsection (1) or in any other separate notification, which of the operations or processes shall be carried out or shall not be initiated in the ecologically critical area.”

Under Section 5, the Ministry of Environment and Forests (MoEF) has already declared 8 areas including one mother fishery (wetland), fragile coral island, part of world’s largest mangrove forest as ecologically critical areas[31] and has brought them under special protective measures. Such initiative of the Government of Bangladesh strongly supports its commitment expressed under the various CTPs including the Convention in Biological Diversity, 1992 and the Convention on Wetlands of International importance Especially as Waterfowl Habitat, 1971. Most recently, the cabinet on 22 July 2002 has approved the International Convention on Oil Pollution Preparedness Response and Cooperation, 1990 paving the way to protect its territorial water from oil pollution.

Section 2(1) of the Act defines ‘wastes’ and authorizes the Government to determine the standard for discharge and emission of waste including radioactive wastes [Section 20(2)(e)]. Hazardous substance has also been defined [Section 2(i)] and the Government has been authorized to lay down rules for environmentally sound management of hazardous substances and toxic wastes. Although the Government is yet to exercise its rule making powers, these legal developments correspond to the accepted framework of Agenda 21 calling for environmentally sound management of hazardous wastes and substances. At the national frontier, the Government in exercise of its powers under the Agricultural Pesticides Ordinance, 1971[32] has banned the import of ten pesticides for their hazardous impact on vegetation human and animal life[33]. Worth mentioning, Bangladesh has ratified the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal, 1989. The country has also signed the recently adopted Stockholm Convention on Persistent Organic Pollutant, 2001 on 23 May 2001.

Section 12 of the ECA incorporates the precautionary principle by requiring industrial unit or projects to be established after obtaining environmental clearance from the DoE. Any violating unit may be shut down by the DG, DoE. The amended ECA[34] empowers the government to ban products that are harmful to environment and the government, with active participation from the people, has been very successful in banning the production, use and sale of polythene products below 20 macron.

The most significant advancements after the enactment of the ECA have been the setting up of quality standard for air, water, noise and soil and the formulation of environmental guidelines to control and mitigate pollution. The setting up of such standards has been done through the Environment Conservation Rules framed in 1997. The Rules have detailed out the development where environmental impact assessment (EIA) would be necessary. This has made EIA mandatory for specified projects and industries although procedural details of EIA are yet to follow. The Government may think of making the EIA process participatory ensuring access in decision-making process. The ECA has made it an offence to discharge excessive pollutants and causing damage, direct or indirect, to eco-systems. Sections 7 and 9 of the ECA have in effect incorporated the principle of ‘polluters pay’. Under Section 7 the DG shall require any person including companies responsible for pollution to adopt corrective measures and also to pay good the losses caused by such pollution. In the event of failure by the polluter to prevent emission of excessive discharge the DG shall initiate the needed remedial measures and the expenses incurred shall be recovered from the polluter as public demand[35].

The ECA tends to ensure access to administrative proceedings and also to participation in the decision making process. Section 8 of the ECA allows a person affected or likely to be affected from the pollution or degradation of environment to apply to the DG for remedying the damage or apprehended damage. The DG may adopt any measures including public hearing for setting such grievance.

Under the original Act, cognizance of offence by the courts required a written report from the DG. The requirement of report from DG, DoE would have adverse affect on right to justice. Fortunately, the original Act has been amended in a positive fashion. The requirement of written report although still valid, may be relaxed at the discretion of the judiciary if there appears to be a prima facie case and also failure on part of DoE to take proper initiative.

Amended Section 4A of the ECA has required all statutory agencies to render assistance and services to the DG on his request.

Violation of the provisions of the Act has been made an offence and may be visited with a penalty of Taka 10 lakh and/or 10 years of imprisonment[36]. The Act has recently been amended to provide for different punishment for violation of different provisions.

For proper implementation of the ECA, it has been proposed to set up environmental courts in the six administrative divisions of the country[37]. The proposed courts would administer the environmental offences under the ECA and also other laws as may be notified by the Government in official Gazette. This revolutionary step aims at ensuring speedy trial and disposal of environmental cases. The Act provides in details the investigation and trial procedure for the Courts comprising of members of the subordinate judiciary. Section 9 of the Act empowers the Environmental Courts to use the fine realized as compensation for the people affected by the environmental offence.

The judges for two environmental courts have already been appointed and it is expected that the judicial system will start functioning soon.

An amendment to the Forest Act, 1927 in 2000[38] has provided scope for public participation in environmental resource management. The newly added section 28A has given express legal recognition to the concept of social forestry and has empowered the government to make rules requiring an ‘agreed upon management plan’ for social forestry programmes. The rules are in the process of finalization.

Another significant piece of law enacted in 2000 is the Open Space Protection Act, 2000[39]. With proper implementation of the law, the respective authorities can protect the natural water bodies including the flood plains of the urban areas from filing up for the sake of urbanization and development.

In addition, legal regime on environment contains provisions recognizing customary rights over forest[40], access to open water fisheries[41] and participation in the development process while finalizing water related schemes[42] and master plan for urban areas[43]. Legal regime provides punishment against pollution of territorial waters[44] and prohibits pollution of air, water and soil from agricultural, fishery, industry, vehicle and other sources[45]. Environmental resources like forest and fishery have been given special status for protection purposes.

Administration of Environmental Justice: The Court Cases:

On the fact of activism by the civil society, the judiciary in Bangladesh has started responding to cases seeking environmental justice. Judicial activism contributes to proper implementation of environmental laws and allows the vast majority of the backward section access to the justice system.

As a result of progressive interpretation by the judiciary of some constitutional and legal provisions, ‘public interest litigation’ (PIL) and ‘right to environment’ have received express legal recognition. The cases decided by the judiciary have tended to activate the executive, create wider awareness and affected the value system of the administration and the society. In the cases on environment decided so far by the judiciary, directions have been given to the government agencies to perform their statutory functions. All these decided cases have addressed issues on sustainable development, precautionary principle, participation and access and are rather landmark decisions.

With increased number of PILs in Bangladesh, it can now be said that the environmentalists and the civil society places confidence in the judiciary in redressing the grievance of the downtrodden and the deprived. In deciding some of the cases the judiciary has endorsed the innovations that justice require in one recent incident, the High Court even intervened and issued suo moto rule to protect a public garden from encroachment.

Environmental Nuisance should be Mitigated:

Judicial recognition for protection of environment was first recorded by the High Court[46] in a case that challenged nuisance during election campaign. The judiciary disposed of the case on assurance from the Attorney General to take measures against defacing of public and private property in the name of election campaign.

Right to Environment:

The judiciary, while deciding on a case involving importation of radiated milk[47] attached broader meaning to the constitutional ‘right to life’ and held “Right to life is not only limited to the protection of life and limbs but extends to the protection of health and strength of the workers, their means of livelihood, enjoyment of pollution-free water and air, bare necessaries of life, facilities for education, development of children, maternity benefit, free movement, maintenance and improvement of public health by creating and sustaining conditions congenial to good health and ensuring quality of life consistent with human dignity.”

Access to Justice: Opening up the Horizon of Public Interest Litigation (PIL):

In an appeal from the judgment of the High Court Division dismissing a writ by a local environmentalist group on ground of locus standi, the Appellate Division of the Supreme Court of Bangladesh in its historic judgment dated 25 July 1996 granted standing to the ground[48].

In allowing the appeal, the judiciary interpreted the constitutional requirement of “aggrieved” in ways beyond the strict traditional concept. The appeal being allowed is a landmark decision in addressing the constitutional knot and riddle that have been prevailing on the threshold question as to who is an “aggrieved person” for last twenty four years history of our Constitution.

The decision opened up the horizon of PIL in Bangladesh and since then the judiciary has entertained a good number of cases on environmental grievances.

Right to Participation:

On application from a local environmental group, the High Court Division (HCD) of the Supreme Court also intervened to judge on the legality of a development project called the Flood Action-Plan-20[49]. The petitioner accused the authorities of violating a number of laws that ensure people’s participation in the decision making process, provide for compensating affected people for all sorts of loss and protecting the national heritage. The Court delivered judgment on 28 August 1997 and observed, “... in implementing the project the respondents (government) cannot with impunity violate the provisions of law”. The Court directed the authorities to execute the work in compliance with the requirements of law that guarantee right to participation and compensations.

Suo motu Rule against Grabbing Land of Public Garden:

The Court has been active in protecting the environment in specific class action, and it has also given rules, suo motu, questioning blatant violations of the state’s obligations to protect and preserve the environment.

In one such case, the High Court Division (HCD) issued a suo moto rule when, in violation of an earlier order of the Court to maintain status quo, gunned hoodlums attempted to encroach upon 2.8 acres land of the only public garden of old Dhaka for construction of hotel therein.

Protecting River from Encroachment:

On application from an environmentalist group[50] seeking judicial intervention to protect the only river flowing through Dhaka from illegal encroachment, the HCD directed the concerned statutory authorities to submit before the Court an action plan setting out definite time frame and measures to be undertaken for removing the encroachers.

Following the petition, the government acted to remove the encroachers and the river now stands free from illegal occupation. Taking from the learning of this case, the government has constituted an inter-ministerial committee to remove illegal occupation from the other rivers of the country.

Checking Industrial Pollution:

In a recent decision, the HCD gave directions to check indiscriminate pollution of air, water, soil and the environment by 903 industries belonging[51]. These industries were identified polluters by the Ministry of Local Government, Rural Development and Co-operatives (LGRDC). The 14 sectors include Tanneries, Paper and Pulp, Sugar Mills, Distilleries, Iron and Steel, Fertilizer, Insecticide and Pesticide Industries, Chemical Industries, Cement, Pharmaceuticals, Textile, Rubber and Plastic, Tyre and Tube and Jute.

An official notification of the government directed the Department of Environment (DoE), the Ministry of Environment and Forests (MoEF) and the Ministry of Industries to ensure within three years that appropriate pollution control measures were undertaken by the identified polluting industries. The Notification also required the said authorities to ensure that no new industry could be set up within pollution fighting devices. When no measure was taken even after the lapse of eight years, the above petition was filed.

After a lengthy hearing, the Court directed implementation of the directions given in the notification. To ensure implementation of the Court order, it was required from the respondents to report to the Court after six months by furnishing concerned affidavit showing compliance. The Court held it imperative on the part of the DG, DoE to take penal action against such department or persons responsible for not implementing the ECA, 1995.

Vehicular Pollution to be Reduced:

The HCD, in a recent decision, gave a comprehensive judgment[52] to fight vehicular pollution at different from. The six directives of the Court required the authorities to -

• Phase out all two-stroke vehicles from city streets of the Capital by December 2002

• Convert all petrol and diesel-fuelled government vehicles into Compressed Natural Gas (CNG) powered within six months

• Enforce the prohibition on use of pneumatic horns within 30 days

• Check fitness of vehicles using computerized system with immediate effect

• Follow international standard of fuel by reducing or eliminating toxic elements

• Set up adequate number of CNG filling stations within six months and ensure that all cars imported since July 2001 is fitted with catalytic converter. This petition also has been kept pending for further monitoring.

The other pending cases on environment involves preservation up of lakes, flood flow zones and rivers, encroachment over rivers, violation of construction law, pollution from brick fields, environmental hazards of shrimp cultivation, destruction of hills, gas explosion without environmental impact assessment (EIA), compensation for environmental damages and so on.

Judicial Decisions in the Issue of Environment of Bangladesh:

The concept of public interest litigation as has emerged into the judicial administration of Bangladesh is yet to mature with the concept of justice guaranteed by the Constitution. This is a crucial concept in a country like ours where 65% of the total populace have no or less access to judiciary although the constitution commits for equality before law, justice, right to life and equal enjoyment of fundamental rights by all citizens. With obvious socio-economic constraints and a long history of feudal past, the realization of legally recognized rights is still subject for movement by various social and pressure groups. In recent time the movement for enjoyment of rights took a new dimension as the potential of judiciary is being increasingly emphasized by the activists and the courts are dealing with cases seeking relief against administrative anarchy and ignorance. It was interesting to note that the concept of PIL is developing in Bangladesh as a performance of public duty by some citizens groups holding or advocating in support of progressive ideologies. Thus in 1994 a petition was first taken before the High Court by a national non-governmental organization called Bangladesh Environmental Lawyers Association (BELA) on behalf of the people of a locality where a disputed development action was being implemented. The petition was at first rejected by the court on the ground of standing of the organization. An appeal was preferred from that rejection where the core question was whether groups like BELA with dedicated and sincere record of activism can claim to have acquired sufficient interest to seek judicial redress against anarchy in its own field of action. The question was vital as it was a constitutional requirement under Article 102 that it is only “a person aggrieved” who can file petitions for enforcement of fundamental rights. Being responded by the Supreme Court in the positive this became the turning point in the history of PIL in Bangladesh. BELA that led the movement for opening up the horizon of PIL in Bangladesh has filed the cases noted below:

 
1. Dr. Mohiuddin Farooque v. Election Commission & others
Writ Petition No. 186/1994 (Nuisance during Election Campaign)

The first ever-environmental litigation was filed in 1994 in the form of a Writ Petition in the High Court Division of the Supreme Court of Bangladesh by a group of environmental lawyers called the Bangladesh Environmental Lawyers Association (BELA). It was filed against the four authorities of the Government responsible for the enforcement of various civic rights, and accordingly, the respondent was the State. The election of the four Municipal Corporations of the country, held at the beginning of this year, evidenced gross violation of some legal obligations and, consequently, interfered with the various rights of the people. The unlawful activities created by the election campaign resulted in encroaching on public properties, restricting and depriving the rights to life, property, enjoyment of public resources, etc. of the city dwellers. The footpaths and other public places were saturated with election camps; incessant use of loudspeakers and other noisy instruments rendered life miserable; the walls of the four major cities of the country where the elections were being held were all covered with election slogans; unscheduled and unregulated processions created serious traffic jams, and so on. Repeated appeals by the Election Commission for showing respect to the laws of the country were virtually ignored. All this anarchy prompted the institution of a petition where the Hon’ble Court issued rule nisi upon the respondents asking them to show cause as to why they should not be directed to comply with the directive issued by the Election Commissioner touching upon the various acts and laws and rules. The Court also considered the prayer of the petitioner to restrain the Election Commissioner from holding the election till full compliance with the respondents. The rule, however, was disposed of, following assurance from the Attorney General that the Government would take all necessary steps to implement all the directives of the Election Commission.

2. Dr. Mohiuddin Farooque v. Bangladesh & others
Writ Petition No. 891/1994 (Industrial Pollution Case)

In 1994 BELA filed this Writ Petition seeking relief against indiscriminate pollution of air, water, soil and the environment by 903 industries of 14 sectors identified as polluters by the Ministry of Local Government, Rural Development and Cooperatives (LGRDC) vide Gazette notification dated 7 August 1986. The 14 sectors include Tanneries, Paper and Pulp, Sugar Mills, Distilleries, Iron and Steel, Fertilizer, Insecticide and Pesticide Industries, Chemical Industries, Cement, Pharmaceuticals, Textile, Rubber and Plastic, Tyre and Tube and Jute.

The Notification of 7th August 1986 directed the Department of Environment (DoE), the Ministry of Environment and Forests (MoEF) and the Ministry of Industries to ensure within three years that appropriate pollution control measures were undertaken by those industries. The Notification also required the said authorities to ensure that no new industry could be set up without pollution fighting devices. But unfortunately, even after the lapse of eight years when no measure was taken the above Petition was filed.

After seven years since the date of filling of the petition on the 15 July of 2001, the court has directed the Directed General, Department of Environment to implement the decision taken with regard to mitigation of pollution by 903 industries identified as polluters within the time frame of six months from the date of the judgment.

The Petitioner pleaded that the ecological system of the country more particularly the air and water including the major rivers (Buriganga, Surma, Karnaphuli and so on) are being severely affected by the identified 903 industries and that no affirmative action has been taken in furtherance of the decisions of the Gazette dated 7th August, 1986. Rather the number of polluting industries has multiplied as the recent list prepared by the DoE shows that the number of polluting industries have risen up to 1176. The Court earlier issued Rule Nisi to the Respondents including the LGRDC, Ministry of Environment and Forest, Ministry of Industries and Department of Environment to show cause as to why they should be directed to implement the decisions of the Government dated 5 June, 1986 which was published in the official Gazette. After hearing the Petitioner, the Rule has been made absolute today and the DG, DoE has been directed to “Report to this Court after six months by furnishing concerned affidavit showing that compliance of this Order of this Court”. To ensure implementation of the Court directions, the Hon’ble High Court further held that “It will be imperative on the part of the Director General to take penal action against such department for persons who are responsible for not implementing the letter of the Environment Conservation Act, 1995.”

3. Dr. Mohiuddin Farooque v. Bangladesh & others
Writ Petition No. 300/1995 (Vehicular Pollution Case)

This writ petition was filed by BELA seeking appropriate direction upon the Respondents to perform their statutory public duties and functions for controlling environmental pollution created by motor vehicles and to take effective measures to ensure the most appropriate mitigative measures, devices and methods to prevent further aggravation and danger to life and public health. The petition was filed against 13 Respondents, namely, (1) The Secretary, Ministry of Communications; (2) The Chairman, Bangladesh Road Transport Authority; (3) The Secretary, Ministry of Home Affairs; (4) The Commissioner, Dhaka Metropolitan Police; (5) The Secretary, Ministry of Environment and Forest; (6) The Director General, Department of Environment; (7) The Dhaka City Corporation; (8) The Secretary, Ministry of Health & Family Welfare, (9) The Secretary, Ministry of Commerce, (10) The Secretary, Ministry of Energy and Mineral Resources, (11) Chairman, Bangladesh Petroleum Corporation, (12) The Secretary, Ministry of Industries, and (13) The Bangladesh Standards and Testing Institution.

In his submission the petitioner stated that the air pollution from faulty motor vehicles has been universally identified as a major threat to human body and life. Such pollution in Dhaka City is acute and incompatible with the conditions required for the growth of human life and ecology. The lives of the City dwellers and its environment are endangered and the failures of the respondents in the performance of their statutory and public duties are depriving people of their fundamental rights disturbing the public peace creating public annoyance. He submitted that the lead-laced gas emitted because of the use of leaded petroleum were severely affecting the lungs, liver, brain and the nervous system, resulting to high blood pressure, IQ and memory-retention damage among children and damage to foetuses leading to deformed babies. The high sulphur content in the petroleum, and hence in the smoke, causes severe damage to the ecology.

The main thrust of Dr. Farooque's submission was that although the right to a safe and healthy environment has not been directly specified in the Constitution as a fundamental right, such a right is inherent and integrated in the "right to life" as enshrined in Article 32 of the Constitution. Hence, the right to a sound environment was also a fundamental right under Article 32 being supported by Article 31 that ensures that no action detrimental to life, body, property could be taken. Therefore, the failures of the Respondents in their duties denied the people of their basic fundamental right.

Upon hearing the Petition, the Court issued a rule nisi upon the Respondent to show cause as to why they should not be directed to take all adequate and effective measures to check pollution caused due to the emissions of hazardous smokes from the motor vehicles and the use of audible signaling devices giving unduly harsh, shrill, loud or alarming noise.

The matter was pending for a long time and after a lapse of 7 years, on the 27th March of 2002 the High Court has directed the government to phase out all two stroke vehicles from City Street by December 2002.

The court also directed that all petrol and diesel-fuelled government vehicles have to be converted into Compressed Natural Gas (CNG) powered within six months and pneumatic horns being discarded within 30 days.

It asked the Bangladesh Road Transport Authority (BRTA) to check fitness of vehicles, using computerized system with immediate effect. The court also asked the government to ensure international standard of fuel by reducing or eliminating toxic elements.

The High Court further directed the government to set up adequate number of CNG filling stations within six months and to ensure that all cars imported since July 2001 be fitted with catalytic converter.

The government was also asked to strictly comply with its decision to ban two stroke vehicles of over nine years old.

BELA also prayed for ensuring that the exemption of motor cycles from the requirement of certificate of fitness under the Motor Vehicles Ordinance, 1983 be withdrawn immediately which was also directed by the Court.

On behalf of the government BRTA, Dhaka Metropolitan Police, Environment Ministry, Department of Environment, Commerce Ministry and Ministry of energy and mineral resources submitted testimony (affidavit) in opposition before court. The matter is pending for further monitoring.

4. Sharif Nurul Ambia v. Bangladesh & others
Writ Petition No.  937/ 1995 (Unlawful Construction)

The Petition was filed with legal assistance from Bangladesh Environmental Lawyers Association (BELA) by Mr. Sharif Nurul Ambia, Joint General Secretary of Jatiya Samajtantric Dal (JSD).

The Petition was moved by the Secretary General of BELA, Dr. Mohiuddin Farooque submitting that the DCC has undertaken the construction of the multi-storied building at the site earmarked for public car park in the RAJUK Master Plan unlawfully and without the latter's approval and hence liable to be demolished. It was further submitted that the construction was continuing defying DoE's finding that the said building would create a disruption to the environment of the area and the neighborhood depriving them the right to life, body and healthy environment against hazardous pollution and obstruction to air and light as being endangered by the unauthorized construction by the Respondents.

Upon hearing the petitioner, the Court stayed the said construction till disposal of suit. The rule was ultimately disposed of against which an appeal is pending before the Appellate Division.

5. Dr. Mohiuddin Farooque v. Bangladesh and others
Civil Appeal No. 24/1995 (Case on Standing)

This Appeal arose from the judgment of the High Court Division dismissing a writ   stating that BELA had no right to sue on behalf of the people of Tangail where the Flood Action Plan-20 was being implemented. On Appeal, the Appellate Division granted standing to BELA on 25th July 1996.

The main thrust of the appeal was to get a judicial verdict as to whether a person or group of persons could be “aggrieved” in ways beyond the strict traditional concept, which are now emerging in many legal systems, like suits by evidently public-spirited persons or bodies having proven dedication. The appeal being allowed is a landmark decision in addressing the Constitutional knot and riddle that have been prevailing on the threshold question as to who is an "aggrieved person” for last twenty four years history of our constitution.

6. Dr. Mohiuddin Farooque v. Bangladesh & others (Writ Petition No.998/94) Sekandar Ali Mondol v. Bangladesh and others (Writ Petition No.1576/1994)  (Challenging Flood Action Plan-20)

In 1994, a Petition was filed by BELA challenging the implementation of Flood Action Plan-20 in Tangail. The Petition, first rejected by Court on the ground of Standing of the Petitioner was subsequently sent for hearing on merit to the High Court after the Appellate Division granted standing (Bangladesh Legal Decisions, (BLD) 1997 Appellate Division (AD), pg.1).

In the petition, the authorities were accused of violating a number of laws that provide for compensating affected people for all sorts of loss and protecting the national heritage. The Court delivered Judgment on 28 August ’97 and observed that “... in implementing the project the respondents cannot with impunity violate the provisions of law. We are of the view that the FAP-20 project work should be executed in complying with the requirements of law.”

7. Dr. Mohiuddin Farooque v. Bangladesh & others
Writ Petition No. 948/1997 (Uttara Lake Fill-up)

A division Bench of the High Court Division issued an injunction of the filling up of Uttara Lake for housing purposes. The injunction was issued on an application of Dr. Mohiuddin Farooque, Secretary General, BELA upon the Secretary, Ministry of Housing and Public Works, Chairman, Rajdhani Unnayan Kartripakhya (RAJUK) and DG, DoE. The petition was filed on an appeal from the local residents of Uttara, who accused RAJUK of creating an environmental hazard in the area by filling up part of the lake in violation of the original Master Plan of Uttara. The injunction would remain effective till disposal of the case.

Upon final hearing of the petition the Hon’ble Court on presided over Mr. Justice Md. Imman Ali and Mr. Justice Shamin Hasnain on 17 February, 2004 discharged the rule without any order as to cost.

After gating aforesaid judgement BELA filed Civil Miscellaneous Petition 84 of 2004 and Civil Petition for Leave to Appeal 564 of 2004 before the appellate division upon hearing the petitioner the Hon’ble Appellate Division granted prayer Leave. Pending hearing of the rule, parties are directed to maintain status quo.

8. Dr. Mohiuddin Farooque v. Bangladesh & others
Writ Petition No. 1252/1997 (Unregulated Operation of Brick Field)

The indiscriminate operation of 19 brickfields in Senbag of Noakhali District in violation of applicable legal provisions and circular was brought to the notice of the High Court through the above petition. The petition filed by BELA on behalf of a local group called Senbag Thana Pollution Free Environment Committee accused the local administration for being indifferent towards the environmental havoc created by the brick furnaces. The management of the brickfields were not conducting their business with due regard to the legal provisions mandating in favour of sound environment and health state. Moreover, leasing agricultural land to brick fields in violation of existing land management laws and manual resulted in a tremendous pressure on the available stock of agriculture land, as after a given period the lands do not remain fit for agricultural purposes.

Upon hearing the petitioner BELA, the Court issued a Rule Nisi calling upon Secretary, Ministry of Land, Deputy Commissioner, Noakhali and DG, DoE to show cause “as to why the issuance and renewal of licenses permitting operations of 19 brick manufacturing kilns in the Senbag Thana under Noakhali District causing threat to the natural environment and health of the neighbouring residents of the area should not be declared to have been done without any lawful authority and be directed to implement the circular.” The matter is now pending for hearing.

9. Dr. Mohiuddin Farooque v. Bangladesh & others
Writ Petition No. 6020/1997 (Hill Cutting Case)

The indiscriminate, unlawful and unauthorized cutting and rising of hills within the Chittagong City Corporation and its adjoining areas was brought to judicial notice by BELA through the above petition. The Court on hearing the petitioner, Dr. Mohiuddin Farooque, directed the DG, DoE to submit a report on alleged illegal and indiscriminate cutting of hills, contributing to ecological imbalance and degradation of environment of the city. The Court further ordered that the report should contain the measures taken by the Government to prevent such illegal activities. Subsequent application has been filed under the petition. The matter is now pending for hearing.

10. Dr. Mohiuddin Farooque v. Bangladesh & others
Writ Petition No. 6105/1997 (Gas Explosion at Magurchara)

The above petition was against the Secretary, Ministry of Energy and Mineral Resources, Chairman, Bangladesh Oil, Gas and Mineral Development Corporation (PETROBANGLA), DG, DoE and Occidental of Bangladesh Limited for their negligence in preventing the fire that engulfed the Magurchhara Gas Field and the adjoining areas, while the Occidental of Bangladesh Ltd., a reputed foreign oil company, was carrying on with their regular excavation. The statutory authorities permitted such risky operation without proper EIA, as required by the ECA.  BELA, the petitioner, also blamed the respondents for failing to combat the after effects of the fire, as reports suggest that it took quite a long time before normal life was restored in the affected areas.

A show cause notice was issued upon the respondents to clarify their own position. With the filing of subsequent petition the petition is pending for hearing.

11. Dr. Mohiuddin Farooque v. Bangladesh & others
Writ Petition No. 7422/1997 (Gulshan Lake Fill-up)

A division bench of the High Court Division issued a Rule in a petition filed in 1997 against implementation of an agreement called the “Banani, Gulshan, Baridhara Lake Development Project Agreement” signed between RAJUK and Indus Valley Investment Pvt. Ltd. to undertake a huge construction in the said areas, defying and violating the constitutional and legal requirements. The Court directed them to show cause as to why “the agreement and the subsequent agreements to lease out a total area of 220 acres of public land should not be declared to have been entered/undertaken without lawful authority in violation of law and the constitution against public interest and as such be declared null and void and of no legal effect.” The Government subsequently cancelled the project.

12.  Nijera Kori v. Bangladesh & others
Writ Petition No. 1162/1998 (Allotment of Land for Shrimp Cultivation)

The petition was filed against allotment of Government owned Khas Land to Shrimp Cultivators in Sudharam, P.S. of Noakhali District in contravention of the provision of the Land Management Manual, 1991 and Articles 15, 19, 31 and 32 of the Constitution depriving thereby the landless people. The Court on two occasions restrained the respondents from disturbing the peaceful possession of the landless families. The matter is now pending for hearing.

13. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 2482/1999 (Gulshan Lake)

The unlawful filling up of Gulshan, Banani, Baridhara Lake for creating housing plots was challenged by another writ petition No. 2482 of 1998 filed by BELA. Following the Petition a division bench of the High Court directed RAJUK to take measures for suspending all construction and/ or filling up of the water body and lakeside areas of Gulshan, Banani and Baridhara Model Towns in specific areas. The Court also issued a rule nisi upon the Ministry of Works and RAJUK to show cause as to why the allotment of on the lake water lake-side area in Gulshan, Banani, Baridhara Town shall not be declared to have been undertaken in violation of the Town Improvement Act, 1953, against public interest and why they should not be directed to restore public property in a manner best suited to public interest.

The Court further directed RAJUK to prepare and submit before it a detailed and complete statement regarding allotment of plots and filling up of the lake water and/or lakeside area in violation of the approved Master and Lay Out plan rendering thereby water bodies of the Lake into private properties along with list of names and address of persons in whose favor such allotment have been made and those encroachment upon the lake water and or lakeside. The matter is pending for hearing.

14. Biplob Kumar Roy v. Bangladesh and others
Writ Petition No. 1840 of 1999 (Nabaganga River)

A Rule Nisi was issued upon the Deputy Commissioner, Narail District for unlawfully leasing out part of the River Nabogonga having its flow through Rajpur to Jaipur Ghat. The rule came as a result of the Petition No. 1840 of 1999 filed by BELA and one member of the local fisherman community, alleged that such leasing violated the notification of the Ministry of Land dated 5 September ’95 prohibiting leasing of open fisheries for protecting the rights of the poor fishermen community and ensuring their livelihood. The rule required to show cause as to “why the leasing out of the part of the river Naboganga shall not be declared to have been made in defiance of legal and constitutional obligations and against public interest, is of no legal effect and without any lawful authority”. The authority ultimately cancelled the lease.

15.  Bangladesh Environment Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 4098/1999 (Buriganga Encroachment)
A direction was issued upon the Secretaries, Ministry of Land, Home Affairs, Water Resources; Chairmen, Bangladesh Water Development Board and Bangladesh Inland Water Transport Authority and the Deputy Commissioners of Dhaka and Narayanganj requiring them to prepare and submit a report in the form of an action plan setting out a definite time frame and stating the measure to be undertaken for recovering the public property of the river Buriganga and evict the illegal encroachers as identified by a report of the Deputy Commission of Dhaka dated 5 February, 1998. The direction was issued by a division bench of the High Court following a Writ Petition No. 4098 of 1999 filed by BELA and required the report to be submitted within two months.

The Hon’ble Court also issued a Rule Nisi upon the above state parties also including the Secretary, Ministry of Environment to show cause as to why they should not be directed to perform their legal duties in taking immediate appropriate measures for removing the illegal encroachment over the river Buriganga and protecting its environment and restoring the same in a manner best suited in the interest of the public.

In the above Writ Petition the Hon’ble Court upon hearing the Petitioner was pleased to pass an Order on 18 January 2000 directing to take immediate appropriate measures for removing the illegal encroachment over the river Buriganga for recovering the public property and protecting its environment. After the said Order the Honorable Court issued directions on 23 April, 19 July and 20 August’ 2000 virtually extending time for compliance with the Order dated 18 January ‘2000. Despite such repeated Orders from the Hon’ble Court and service of the notices the Respondent failed to comply with the direction of Hon’ble Court. For the non compliance of the Court directions by the Respondents, BELA filed a Contempt Petition No. 33 arising out of Writ Petition No. 4098 of 1999 on 8th April, 2001. The matter is now pending for hearing.

16. Bangladesh Environment Lawyers Association (BELA) v. Bangladesh and others Contempt Petition No. 33 of 2001 (Arising out of Writ Petition No. 4098 of 1999) (Buriganga Encroachment)

One contempt petition has been filed before the Hon'ble High Court Division to wilful disregard to the order of the High Court Division relating to the Buriganga Encroachment in this petition the division bench calling upon the respondents contemnors to show cause as to why they should not be prosecuted for committing contempt of court in my some meeting the report in compliance to the order dated 18 January 2000, 23 April, 2000 and 19 July, 2000 passed in writ petition No. 4098 of 1999 and take appropriate action to punish the respondent contemnors according to law and / or such other or further order passed as to this Court may seem fit and proper. The matter is pending for hearing.

17. Khushi Kabir v. Bangladesh and others
Writ Petition No. 3091 of 2000 (Illegal Shrimp Cultivation)

A Division Bench of the High Court Division comprising Mr. Justice Mohammad Gholam Rabbani and Justice Begum Nazmun Ara Sultana has issued a Rule Nisi on 6 June, 2000 upon the Secretary and Assistant Secretary, Ministry of Fisheries and Livestock, Director General, Fisheries Directorate, District Commissioner, Khulna, District Fisheries Officer, Khulna to show cause as to why the impugned order for utilizing the land of Polder 22 for shrimp cultivation under Deluti Union, Paikgachha P.S. of Khulna district dated 9 May, 2000 shall not be declared to have been issued without lawful authority and have no effect as being ultra virus and in violation of the fundamental rights of the petitioner as guaranteed under articles 27, 31 and 42 of the Constitution. The Hon’ble Court also stayed the operational effect of the above-mentioned letter issued by the Respondent No. 2 and of any steps taken for shrimp cultivation pursuant to the impugned letter issued from the same Respondent.

The petitioners were aggrieved by the order issued by the Respondent No. 2 vide letter bearing No. Motsho-2 (Niti) 10/99/52 that purported to direct that Polder No. 22 under Deluti Union of Paikgacha Thana be earmarked for shrimp cultivation upon the application submitted by Advocate Sheikh Mohammad Nurul Hoq, MP.

The petition alleged that if the area under Polder 22 is allowed for shrimp cultivation that would create environmental problems.

18. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 1691 of 2001 (PAP Case)

A division bench of the High Court comprising Mr. Justice Kazi AT Monwar uddin and Mr. Justice Mozammul Hossain has issued a Rule Nisi upon the Secretary, Ministry of Water Resources and Land; Chairman, BWDB; Director General, WARPO; Deputy Commissioner, Tangail and Executive Engineer, BWDB to show cause as to why they should not be directed to assess the compensation claims of the Project Affected People in compliance with the provisions and procedures of the Acquisition and Requisition of the Immovable Property Ordinance, 1982; section 28, 30 and 31 of The Embankment and Drainage Act, 1952 (East Bengal Act I of 1953); Article 11(1)(c) of Bangladesh Water and Power Development Boards Order, 1972 (President’s Order No. 59 of 1972) and the judicial pronouncement dated 28 August, 1997 passed in Writ Petition Nos. 988 and 1576 of 1994 by this Hon’ble Court. This matter is pending for hearing.

19. Md. Shahjahan Mondol and others v. Executive Engineer CPP Division Water Development Board Tangail and others Civil Revision no. 2873 of 2001 (FAP)

A single bench presiding by Mr. Justice Md. Abdul Wahhab Miah the court issued rule calling upon their opposite parties to show cause as to why the order dated 25.2.2001 passed by the Sub-Ordinate Judge Arthorin Adalat Tangail in miscellaneous appeal no. 78 of 1999 setting aside the order maintaining a status quo dated 4-11-99 passed by the Senior Assistant Judge, Tangail in Title Suit No. 113 of 1999 should not be set aside and or passed such other or further order or orders as to this court may seem fit and proper. Pending hearing of the rule Parties are directed to maintain status quo in respect of possession of the suit property. The matter is now pending for hearing.

20. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh & others Writ Petition 3336 of 2002 (Filling up of Ashulia Flood Flow Zone)

A Division Bench of the High Court comprising Mr. Justice S.A.N Mominur Rahman and Mr. Justice Arayesuddin has directed to immediately stop the unlawful earth filling of the Ashulia flood flow zone by Jamuna Builders Ltd. Following a writ petition filed by BELA, the Hon’ble High Court has given the direction on 13th of July, 2002.

In the petition filed by BELA relief was sought against 8 respondents including Secretaries, Ministry of Housing and Public Works, Ministry of Land, Ministry of Environment and Forest; Chairmen, RAJUK and BWDB; Director General, Department of Environment; Deputy Commissioner, Dhaka; and Managing Director of Jamuna Group Ltd.

The BELA petition alleged that the earth filling by the Jamuna Builders Ltd. and other developers in Ashulia flood flow zone for housing purposes has no approval from the RAJUK. The filling up of the flood flow zone and the branches of the Turag River flowing thereon was essentially changing the nature, character and utility of the natural water body. Such filling up was in gross violation of the Master Plan of the City prepared by RAJUK and also the 2000 Act that aims to protect the open spaces including the flood flow zones from being filled up. The 2000 Act strictly prohibits activities that would change the nature of the water bodies including flood flow zones without prior approval from the government.

The Master Plan prepared by RAJUK discourages all development in main flood flow areas to enable free flow of flood water. The only activities allowed therein under the Master Plan are agriculture, dry season recreation and ferry terminals. The violation of the Act of 2000 is punishable with imprisonment of 5 years and fine upto Taka 50 thousand.

In defiance of this entire legal requirement, the Jamuna Builders Ltd. proposed to develop housing over an area of 2276.19 bigha encroaching upon 5000 acre flood flow zone and also the branches of Turag that the government, as claimed by BELA failed to prevent effectively.

Upon hearing the petition, the Hon’ble Court directed the respondents to show cause as to why the unlawful filling up of Ashulia flood flow zone and branches of the Turag River by the Jamuna Builders Ltd. should not be declared illegal under Act XXXVI of 2000, Town Improvement Act, 1953 and the Environment Conservation Act, 1995.

The Court has further directed to immediately stop all kinds of earth filling in the Ashulia flood flow zone. The matter is now pending for hearing.

21. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 4685 of 2002 (Protection of Fuldi River from Unlawful Leasing)

In ensuring sustainable management of public properties BELA has filed this Writ Petition before the Hon’ble High Court Division of the Supreme Court on 9March, 2002. A large portion of the river Fuldi of village Sonar Kandi under Gazaria police station of Munshigonj District was unlawfully leased for a period of 99 years. The villagers have been using the said river in their agricultural activities including irrigation and drainage. Peasants of nearby villages have been earning their livelihood by carrying out various income generating activities in and around the river that includes boat ferry service, traditional fishing, daily convenient usage, water transport and other usual utilisation like many other rivers of the country. The petitioners claim that the respondents have been acting collusively with mala fide abuse of power with intention to deprive the petitioners and the general public of the locality from their livelihood and environmental protection as the Scheduled Land forms part of natural water flow of the rive Fuldi.

The Court issued a Rule Nisi calling upon the Respondents to show cause as to why the impugned settlement of the disputed scheduled land being against public interest and violative of the petitioners fundamental rights guaranteed under Articles 27 and 31 of the Constitution should not be declared to have been done without lawful authority and is of no legal effect .The Court also stayed the operation of the impugned lease deeds for a period of 3 months from date. The rule was made returnable within 4 weeks from date.   The respondents were Secretary, Ministry of Land; Divisional Commissioner, Dhaka Division; Chairman, Bangladesh Water Development Board; Director General, Department of Environment; Deputy Commissioner, Munshigonj, Additional Deputy Commissioner (Revenue), Munshigonj; the Assistant Commissioner (Land), Munshigonj; Amina Khatun, Ameenuddin & Lal Banu. The matter is now pending for hearing.

22. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 1430 of 2003 (Tannery case)

To relocate Tannery Units from Hazaribagh the High court has issued a Rule Nisi on 3 March , 2003.A division bench of the court comprising of Mr. justice M.A Aziz and Mr. Justice Nazrul Islam Chowdhury has called upon the seven government agencies and two tannery associations as respondents namely; the secretaries of the Ministries  of Industries and Commerce, Environment and Forest, the Director General and the Director of DoE ,member of Planning Commission ,Chairmen of RAJUK ,BSCIC and  Tanners Association and BFLLFEA .They were asked to show cause why they should not be directed to relocate within 18 months from date the tannery units from Hazaribagh area of the city to suitable location as contemplated in the Master Plan prepared under the Town improvement Act 1953 and ensure that adequate pollution fighting devices are developed in the new location /site as required under the Environment Conservation Act, 1995 and the Factories Act, 1965 and the rules made there under.

Pending hearing of the Rule, the respondents are also directed to apprise the Court regarding the process of relocation of Tannery Units and submit a report in this regard to the Court within 6 months from date. The rule is made returnable within 4 weeks. The matter is now pending for hearing.

23. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 2911 of 2003 (Ship Breaking to be Regulated by Law)

Most recently BELA has also filed a petition on the 19th of April, 2003 before the Honb’le High Court division to check pollution of coastal / marine ecosystem caused by the disposal of hazardous ship wastes as taking place in the ship breaking operation in Sitakunda of Chittagong. Seeking relief against violation of legal provisions on environment and labour protection, the petition has been filed, amongst others, the Secretaries, Ministry of Shipping, Industries and Commerce, Labour and Employment, Environment and Forest. The Director General, Department of Environment, Fire Service and Civil Defence, Chief Inspector of Factories and Establishments, Department of Explosives, Collector of Customs, Chittagong, Mercantile Marine Department and the President of Bangladesh Ship Breakers Association are amongst the other respondents. According to the petitioners; the available records suggest that no ship-breaking agencies have environmental clearance despite the clear requirement to have such clearance as a hazardous industry/factory. Moreover, the persistent violation of labour related laws in the ship breaking agencies have resulted in few major explosions in the past three years.

Upon hearing the petitioner, the Division Bench of the High Court Division comprising Mr. Justice M. M. Ruhul Amin and Mr. Justice Mohammad Bazlur Rahman has issued a Rule Nisi calling upon the respondents to show cause why they should not be directed to ensure that ship breaking operation is undertaken only after obtaining certificate of environmental clearance as required under section 12 of the Environment Conservation Act, 1995 and on adopting detailed and appropriate safety and labour welfare measures as required under the Factories Act, 1965.

The Court has also asked the respondents to show cause as to why ship breaking shall not be undertaken only after obtaining gas free certificate from the custom Department to prevent dangerous explosion and protect the workers/labourers from the risk of death, grievous heart and injuries. In this regard the respondents would also show cause why import of ship for breaking purposes shall not be regulated in line with the requirements of the Basel Convention, 1989. The Rule is made returnable within 4 weeks. The matter is now pending for hearing.

24. Fishery related Cases

As a partner of the Community based Fishery Management Programme (CBFM-phase II), BELA is assisting the other partner NGOs/department of fisheries/Local Management Committees of CBFM to defend cases to protect the rights of the beneficiary fishermen. Ten such cases are pending before the sub ordinate courts of Rangpur, Kishoregonj, B’Baria and Narail districts. The suits relate to leasing out of public fisheries to poor fishermen for conservation-oriented management (known as biological management) as opposed to revenue management in favour of individual lease-holder. The suit numbers are:

a. Title Suit No. 24/2002
b. Appeal No. 30 of 1999 and Mis. Case No. 19 of 2002
c. Complainant Register Case No. 02 of 2003
d. Title Appeal No. 142 of 2000
e. Title Suit No. 161 of 2002
f. Other Suit No. 22 of 2003
g. Others Suit No. 27 of 2003
h. Others Appeal No.  23 of 2002
i. Title Suit No. 84 of 2001
j. Title suit no. 66 of 2002.

In these cases BELA is representing the interest of the community in supporting the case of defendant who are partner NGOs of CBFM. Out of these cases, BELA has already won two while the rest are pending.

25. Bangladesh Environmental Lawyers Association (BELA) v. Ministry of Land and others Writ Petition No 4286 of 2003 (Protection and Conservation of Sonadia Island)

A petition (Writ Petition no. 4286 of 2003) was moved by BELA on 6 July, 2003 before the High Court Division seeking special protective measures to protect and conserve the 4916 hectors of Sonadia Island as an Ecologically Critical Area (ECA). The petition for the first time has relied on the principle of ‘polluters pay’.

The petition of BELA made the Secretaries, Ministry of Environment & Forest (MoEF) and Ministry of Land, the Chief Conservator of Forest, the Deputy Commissioner, Cox’s Bazar, the Divisional Forest Officer, Cox’s Bazar respondents.

The petition stated that the declaration of the total of 4916 hector of land of the Sonadia Island as ecologically critical area (ECA) establishes the facts that the mangrove forest of the said land area has special ecological significance in protecting and preserving the char land of Sonadia Island from erosion and also to save the people living nearby from being inundated and swept by the tidal bore during natural disaster. The declaration was withdrawn by the Ministry of Environment and Forest on the erroneous ground that the said forest was once declared reserve and hence following specific management guidelines as developed by the Department of Forest. BELA’s investigation revealed that the forest was never declared reserve and hence withdrawal of its status as ECA has virtually left it unprotected.

Upon hearing the petitioner, the Division Bench of the High Court Division comprising Mr. Justice ABM Khairul Haque and Mr. Justice Syed Shahidur Rahman issued a Rule Nisi calling upon the Respondents to show cause as to why they should not be directed to undertake special protective measures as required under Section 5 of the Environment Conservation Act, 1995 to protect and conserve the 4916 hectors of Sonadia Island as an Ecologically Critical Area as declared vide Gazette notification dated 19 April, 1999 under section 5 of the Environment Conservation Act, 1995. Further granting of lease of or otherwise tampering with the 4,916 hectors of the forest land of Sonadia Island has also been stayed by the Court.

The Respondents have been directed to undertake investigation to identify and measure the areas within the 4,916 hectors of the Sonadia Island where shrimp cultivation/clearing of forest is taking place or has taken place, list those who are involved in such cultivation/clearing and the enabling arrangements, assess in monetary terms the loss of forest resources for such individual shrimp cultivation/clearing of forest and submit a report on the same within two months before this Court. The Rule has been made returnable within 4 weeks. The matter is now pending for hearing.

26. Nijera Kori v. Bangladesh & others
Writ Petition no. 7248 of 2003 (Shrimp Cultivation)

The petition was filed against allotment of Government owned Khas Land to Shrimp Cultivators at Noakali District in contravention of the provision of the Land Management Manual, 1990 and Articles 15, 19, 31 and 32 of the Constitution depriving thereby the landless people. The Court on 15 December 2003 directed not to disturb or harass the petitioners for a period of two weeks. Subsequently a division bench comprising Mr. Justice Shah Abu Naeem Mominur Rahman and Mr. Justice Abdus Salam Mamun granted status co.

Meanwhile the learned Assistant Attorney General appearing in this application submitted that the Government has taken a decision not a evict the landless persons belonging to the writ petitioner samity till their rehabilitation and further under taken that he will inform the government about order passed by this court un this writ petition. In view of the decision of the Government the learned advocate appearing for the writ petitioner submitted that she will not press this application at this stage since the Government has decided not to evict the landless persons from the case land till their rehabilitation.

Considering statements made in the application and the submissions made by the learned Assistant Attorney General the learned advocate appearing for the writ petitioner to the effect that the Government has taken decision not to evict the members of the writ petitioner i.e the land less persons now occupying the case land till their rehabilitation in due course and since the learned Assistant Attorney General has under taken to that effect, let the writ application be disposed of without any order as to costs.

The directions of the Court came in a Writ Petition filed by Nijera Kori with legal assistance from Bangladesh Environmental Lawyers Association (BELA).

27. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh & others Writ Petition no. 2224 of 2004 (Protection and Conservation of Sunderbans)

A petition (Writ Petition no. 2224 of 2004) was moved on 2 May 2004 before the High Court Division by BELA seeking special protective measures to protect and conserve the 9285.15 sq kilometers of Sunderbans as an Ecologically Critical Area (ECA). In the petition filed by BELA relief was sought against the Secretaries, Ministry of Land, Ministry of Environment & Forest (MoEF), Department of Environment (DoE), Chief Conservator of Forest, the Divisional Forest officer, Bagerhat, Divisional commissioner, Khulna, the Deputy Commissioner, Bagerhat, the Upazila Nirbahi officer, Bagerhat.

The petition stated that the land area in question is being grabbed by the Ministry of Land for unlawfully implementing its project despite severe protests even from the Forest Department. It was also stated in the petition that the government vide a gazette notification dated 30 August, 1999 has declared 10 (ten) kilometres area around the reserved forest of Sunderbans as Ecologically Critical Area (ECA) and has prohibited in that area such activities that can threaten the forest and habitat of wild animals. The plan of the Ministry of Land to implement its project is in fact within the limits of the ECA.

Upon hearing the petitioner, the Division Bench of the High Court Division comprising Mr. Justice Shah Abu Naim Mominur Rahman and Mr. Justice Jubayer Rahaman Chowdhury has issued a Rule Nisi calling upon the government to show cause as to why the setting up and implementation of Adrasha Gram project should not be declared to have been undertaken without any legal effect. Pending hearing of the Rule the Court has also stayed implementation of the project and issued an injunction restraining the Secretary, Ministry of Land, Divisional Commissioner, DC and UNO of Bagerhat district from carrying out any activities towards settlement of any person in the ECA of the Sunderbans. The Rule has been made returnable within 8 weeks.

28. Bangladesh Environmental Lawyers Association (BELA) and Global Village, Rangamati v. Bangladesh and others Writ Petition No. 2459 of 2004 (Construction of a Community Center in the Sole Municipal Park of Rangamati)

A petition (Writ Petition no. 2459 of 2004) was moved on 15 May 2004 before the High Court Division by BELA.

Division bench of the High Court Division comprised of Justice Md. Abdul Matin and Mr. Justice Tarequel Hassan granteed status quo on construction of a community center in the sole Municipal Park of Rangamati. The order came following a Writ petition filed by BELA and Global Village of Rangamati.

Established in 1985 at the reserve bazar in Rangamati, the Park comprising 2.5 acres remains the only recreation park for the children. The municipal authority decided to construct a community center, pacca roar and bench of the west side of the park. The construction work planned to be carried out in two phases is being supported by the LGED and World Bank.

For the purpose of establishing community center, many trees on the western side of the Park have already been chopped down. The 20 years older municipal park also has monuments of two famous persons. Protesting the decision of building community center in the Park the civil society of Rangamati arranged series of Demonstrations, human-chain and submitted memorandum to the concern authorities, but of no avail.

But upon hearing the petitioner the Court issued Rule Nisi calling the respondents to show cause as to why the impugned construction project for construction of Community Center in place of Children’s Park casusing threat to the natural environment or the area and the open Space should not be declared to have been undertaken without lawfull authority and is of no legal effects and /or pass such other or further order or orders passed as to the Court may seem fit and proper.

Pending hearing of the rule, parties are directed to maintain status quo in respect of the possession of the park till disposal of the rule.

29. Bangladesh Environmental Lawyers Association (BELA) and Thengamara Mohila Sabuj Sangha (TMSS) v. Bangladesh and others Writ Petition No. 4244/04 (Illegal Sand Extraction from River Korota)

The High Court in August, 2004 issued a rule nisi on the Government and the concerned individuals to show cause why they should not be directed to prevent the illegal sand extraction from the river Korota of Mouzas Thengamara, Shakharia, Bonomalipara and the surrounding areas of Bogra.

The rule nisi was issued on a writ petition filed by BELA and Thengaramara Mohila Sabuj Sangha (TMSS). The petitioners sought judicial intervention to prevent illegal sand extraction from the river Korotoa at the Thengamara, Shakharia and Bonomalipara Mouzas and the surrounding areas of Bogra and also to compensate the affected villagers. The Court further stayed illegal sand extraction for a period of six months.

A division bench of HC comprising the Justice Mohammad Abdul Wahab Mia and Justice Zinat Ara issued the orders upon the secretaries, Ministries of Land, Environment & Forest, Water Resources, DG of Department of Environment (DoE), Deputy Director of DoE at Rajshahi and Deputy Commissioner of Bogra.

30. Nijera Kori and others v. Bangladesh and others
Writ Petition No. 5194 of 2004 (Illegal Shrimp Cultivation and Settlement of Land in favour of Landless People)

In a writ petition  filed by Nijera Kori along with BELA, BLAST, Ain-o-Salish Kendro, ALRD and BSEHR, a division bench of the High Court comprising Justice Md. Abdul Whabab Mia and Justice Jinath Ara issued a Rule Nisi on 1st September, 2004 calling upon the respondents to show cause as to why they should not be directed to protect the landless people living in he 11955.59 acres of char lands declared as shrimp mohal in Noakhali and compensate those landless people who have been affected by the unlawful harassment, intimidation and eviction of the land grabbers and so-called shrimp cultivators.

In the petition, the petitioner sought settlement of the land areas in favour of the landless people as per the provisions of the Land Management Manual, 1990 and also the shrimp mohal management guidelines that gives landless people priority in settlement of khas land.

The Court further stayed the operation of the impugned government memo dated 6.5.2003 declaring 11, 955. 59 acres of char land as ‘shrimp mohal’ in Noakhali that led to severe conflicts, unrest and disputes in the locality. The order of the court will protect 40, 000 landless people of at least 13, 000 families who, being victim of river erosion, are leaving in the khas char land of the government.

The order was served upon the respondents of the case that include the Secretaries Ministry of Land, Ministry of Environment and Forest, and Ministry of Home Affairs; Inspector General of Police; the Divisional Commissioner, Chittagong; the Deputy Commissioners of Noakhali; the Assistant Commissioners (Land), Sadar Upzilla, Noakhali and the Assistant Commissioner (Land), Companigonj Upzilla, Noakhali.

31. Modhumoti Model Town Case Title & No.

In a historic judgment on 27 July, 2005, a division bench of the Supreme Court of Bangladesh comprising Mr. Justice MA Matin and Mr. Justice A F M Abdur Rahman declared the implementation of the Modhumoti Model Town (MMT) undertaken by the Metro Makers and Developers Ltd. as unauthorised, illegal and against public interest. The judgment came following a public interest litigation (4604 of 2004) filed by Bangladesh Environmental Lawyers Association (BELA) that was exhaustively argued before the special bench that delivered the judgment. Together with the BELA petition, the Hon’ble Court has rejected an earlier petition filed by the Metro makers.

BELA first filed the petition on 14 August, 2004 challenging the legality of the Project that was filling up the sub-flood flow zone near Amin Bazar and was being implemented ignoring the mandate of RAJUK. On 15 August, 2004 a Division bench of the High Court comprising Mr. Justice Md. Abdul Wahab Miah and Justice Zinat Ara issued injunction for six months against Metro Makers Ltd. preventing them from further earth filling or undertaking any other activity for implementing the Project including advertisements to sell plots in Modhumoti Model Town. The said order further banned all advertisements for selling of plots of the so-called Modhumoti Model Town.

Subsequently, the stay order was vacated by a division bench of the High Court comprising Mr. Justice Joynal Abedin and Mr. Justice Nirmalendu Dhar on 1 September, 2004 against which BELA preferred appeal. Although the vacation bench of the Appellate Division presided over by Mr. Justice Tafazzul Islam again granted stay in favour of BELA on 3 October, 2004, on regular appeal the Appellate Division referred the matter to the High Court Division for hearing on merit.

The matter was finally disposed of today together with the earlier writ petition (5103 of 2003) filed by the Metro makers alleging that RAJUK through filing of police case was illegality obstructing its development activities. In that case Metro makers obtained stay in their favour and continued to implement the project on the claim that they had RAJUK’s approval for the same. The permission letter they appended in their petition was challenged by BELA as forged and subsequently on scrutiny of the original files; the court today held that the letter was of course not a genuine one. The Hon’ble Court, therefore, discharged the rule issued earlier that so long prevented RAJUK from obstructing earth filling by the Metro makers.

In disposing of the BELA’s case the Hon’ble Court made the rule absolute in part. Considering the length of the judgment, the Hon’ble Court only pronounced the operative part touched upon five major issues. Firstly the Court rejected the plea of the Modhumoti’s lawyers that BELA has no standing to file the case. The maintainability issue was also decided favourably.

On the issue of legality of the project the court categorically held that the project of Modhumoti Model Town being undertaken in violation of the Town Improvement Act and the Master Plan prepared thereunder, the Environment Conservation Act and the Act No. 36 of 2000 and without having obtained any permission from RAJUK, the same is unauthorised, illegal, without lawful authority and against public interest.

The Court therefore, directed RAJUK to protect the sub flood flow zone of Savar Amin Bazar from illegal earth filling by the Metro makers and also directed Metro makers to refrain from undertaking any further earth filling in the said sub–flood flow zone.

The Court, however, directed that since people have already purchased plots, the third party interest of the buyers shall not be affected by this order.  
On behalf of BELA, the petition was moved by Mr. Mahmudul Islam, Mr. A F Hassan Ariff, both former Attorney Generals and Dr. Kamal Hossain with assistance from S. Rizwana Hasan, Iqbal Kabir and Tanjibul Alam. On behalf of RAJUK and the government, the petition was moved by   Mr. A J Mohammad Ali, Attorney General, Ms. Sigma Huda and Mr. Adilur Rahman Shubhro, deputy attorney general.

On behalf of Metro Makers and the added respondents (buyers of plots), amongst others, Mr T H Khan, Mr Azmamul Hossain, Mr. Rokonuddin Mahmud, Mr. Abdul Matin Khasru, Mr. Mahbubey Alam, Ms. Tania Amir,  Mr. Sirajul Haq  appeared before the Court.

The petition of BELA was fought against the indiscriminate and unregulated earth filling by the developers that are causing unbearable water logging in the City.  
32. Bangladesh Environmental Lawyers Association (BELA) and others v. Bangladesh and others Writ Petition No. 6911 of 2005 (Gas Blow Out at Tengratila)

In a writ petition filed by BELA with two other human rights NGOs namely Ain-o Shalish Kendra (ASK) and Odhikar, challenging the legality of the Joint Venture Agreement (JVA) between BAPEX and NIKO, a vacation bench of the High Court comprising Mr. Justice M. A. Rashid and Mr. Justice Md. Fazlur Rahman had issued a Rule (show cause) on 12 September, 2005 on 9 responsible government agencies and NIKO.

Upon hearing the petitioners, the Court issued Rule Nisi calling upon the respondents to show cause as to why the JVA dated 16 October, 2003 between BAPEX and NIKO should not be declared to have been made without lawful authority and why it should not be treated as illegal and a nullity in the eye of law for being volatile of the Bangladesh Petroleum Act, 1974 as well as the Environment Conservation Act, 1995 and having been procured through flawed process effected and induced by resorting to fraudulent and forged document by Niko.

The respondents have also been directed to show cause as to why they should not be directed to take effective legal measures to protect the public property of the gas fields, mitigate the damage and losses sustained by the two blow outs and take immediate effective measures to realize full compensation for destruction of the valuable natural gas resources and the damage to live and property and environment by the blow outs. The Court has further given the following interim orders:

i) Restrained the government from making any payment to Niko in respect of Feni Gas Field or on any other account; ii) Directed the Ministry of Energy, Petrobangla and Bapex to submit the Investigation Reports of different committees dated 7 February, 2005, 13 April, 2005, 4 June, 2005, 13 August, 2005, 28 August, 2005 and 3 September, 2005 on the blow outs within 15 days of receipt of the order; iii) Directed the government to submit a report within 45 days of receipt of the order specifying the measures that have been taken against Niko to recover compensation for the successive blows out; iv) Directed Niko to submit name and particulars of the individual and corporate shareholders of Niko Resources Ltd., and Niko Resources (Bangladesh) Ltd.; v) Directed freezing of all the bank accounts of respondent Niko maintained in Bangladesh.  

33. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 9089/05 (Construction of Jetty in Cox’s Bazar)

In a public interest litigation filed by BELA challenging the decision of the Cox’s Bazar Sea Beach Management Committee to construct a jetty in the Ecological Critical Area (ECA) of the Cox’s Bazar Sea Beach, a division bench of the High Court comprising Mr. Justice Abdul Matin and Mr. Justice Md. Rezaul Haque has stayed all activities in connection with the construction of the Jetty. The petition has been filed against, amongst others, the Secretaries, Ministries of Environment and Forest, Communication, Civil Aviation and Tourism, Deputy Commissioner, Cox’s Bazar.

The petition was filed by BELA on request from Cox’s Bazar Unnayan O Paribesh Shangrakkhan Parishad and Cox’s Bazar Environmental Journalists Forum. The grievance of the petitioner was that the Sea Beach Management Committee was not authorized to introduce commercial activities in the beach area or undertake/authorize construction in the beach area in the name of development. Further the decision of the Committee to go for such unplanned construction and introduction of commercial activities have been taken without any environmental clearance from the government. Such decisions also reflect the insensitiveness of the Committee to protect the ecologically fragile beach that has already been declared ECA by the government for its critical condition.

The local people apprehend that the claim of the Committee that the jetty is needed to facilitate rescue and security operations and also to protect the fish trawlers from sea-pirates and enable the Coast Guard, Bangladesh Rifles and Police to prevent the pirates is not tenable as these objectives have no relevance to the construction of a Jetty. Instead the hurried construction of the Jetty, non-disclosure of the source of fund and the proposition to collect toll from it clearly reveal that the actual agenda behind the construction of the Jetty is hidden and as such the same in contrary to public interest.

Upon hearing the petitioner, the Hon’ble High Court has further issued a rule nisi upon the respondents to show cause as to why the decision for construction of the Jetty and the construction of the Jetty for commercial purposes in the ECA of the Cox’s Bazar Sea Beach without having the authority to do so shall not be declared unlawful, unauthorized and of no legal effect and why the Jetty shall not be directed to be removed and dismantled and also why the respondents shall not be directed to refrain from authorizing any commercial activity in the ECA of the sea beach.

34. Gaurang Proshad Roy and Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 5732 of 2005 (Illegal Shrimp Cultivation at Dakop, Khulna)

In a Writ Petition filed by BELA and local affected people of Dakop Upazilla of Khulna regarding issuance of Shrimp Cultivation Licence and forced flow of saline water over the agricultural lands of the local affected people, a Division Bench of the High Court comprising Mr. Justice Md. Abdul Matin and Mr. Justice Mamnun Rahman on 13 August, 2005 issued a Rule Nisi upon the respondents to show cause as to—

i) why the issuance of licence by the Upazilla Nirbahi Officer and Upazilla Fisheries Officer for shrimp cultivation in the five Unions namely, Bajua, Banishanta, Dakop, Kailashgonj and Laudob of Polder No. 33 of the Dakop Upazilla shall not be declared to be without lawful authority and of no legal effect as being contrary to the provisions of laws; ii) why forced intrusion of salt water over the agricultural lands of the affected local people for cultivation of shrimp shall not be declared to be without lawful authority and of no legal effect; iii) why the respondents shall not be directed to compensate the affected people for the loss suffered by them due to flow of saline water over their lands; iv) why all the respondents shall not be directed to take appropriate measures to prevent the unauthorized use of the sluice gates and public water bodies by the shrimp cultivators in Polder No. 33 under Upazilla – Dakop, Khulna; and v) why projects for cultivation of shrimp and production thereof in saline water shall not be required to be regulated in public interest by the provisions of the Environment Conservation Act, 1995.

35. Bangladesh Environmental Lawyers Association (BELA) and Bangladesh Legal Aid and Services Trust (BLAST) v. Bangladesh and others Writ Petition No. 7123 of 2006 (Water Logging in Jessore)

A Writ Petition was moved on 13 August, 2006 by BELA seeking appropriate judicial intervention to address the sufferings of the local people of 144 villages of the three Upazilas of Abhaynagar, Manirampur and Keshabpur of Jessore caused by the long standing water logging resulting from the implementation of the faulty Khulna Jessore Drainage Rehabilation Project (KJDRP) of ADB and the BWDB.

The petition has been filed at a time when due to the KJDRP more than one lack people of the 144 villagers are forced to live an in human life with their homestead, agricultural lands, academic institutions, road are remaining under water since October, 2005.  Although in a meeting held in last November, 2005 with the three members of Parliament present it was decided that the situation shall be dealt with like emergency/war situation, and that the BWDB continues to claim that it has submitted yet another project worth 92 crores taka, the local people are yet to be rescued from this unprecedented water logging that resulted in serious and unbearable sufferings for the villagers who had no agricultural activities and resultantly no economic  returns for a long time. Local people have demanded removal of the Bhobodoho sluice gate that they believe to be root of the problem and have for long been pressing for adequate relief and supports from the national and local administration, but of no avail.

Following the motion hearing, a division bench of the High Court comprising Mr. Justice Syed Mohammad Dusthagir Hossain and Mr. Justice Mamnon Rahaman has directed, amongst others, the Chairman, Bangladesh Water Development Board, the Deputy Commissioner of Jessore, the Deputy Director, Department of Environment, Khulna and the Upazilla Nirbahi Officers of Abhaynagar, Manirampur and  Keshabpur to provide all such services, products, goods and other supports within their means that are required to ensure that the people of the affected villages of the three Upazillas are safety located and are receiving food, water, medicine and other essentials during such period as the water logging continues.

The Hon’ble Court has further directed the government agencies to show cause within a month as to why their failure to address the catastrophic and prolonged water logging in the three Upazillas of Jessore prevailing for the last few years and failure of the respondents to protect the lives, properties, livelihoods, safety, comfort, health of the villagers from the adverse impact of such unprecedented water congestion should not be declared to be without lawful authority and in violation of their statutory duties. The respondents have also been directed to show cause within four weeks as to why they should not be directed to draw up necessary action plans in consultation with the local people and why a direction should not be issued upon them to form a Committee composed of the persons nominated by the Supreme Court to permanently resolve such catastrophe and arrange for adequate compensation for the local people against the losses resulting from such water logging. The matter is pending for hearing.

36. Bangladesh Environmental Lawyers Association (BELA) and other v. Bangladesh and others Writ Petition No. 7465 of 2006 (Dumping Waste in Savar Amin Bazar by DCC)

In a writ petition filed on 6 August, 2006 by BELA, challenging the dumping of waste by the DCC in the flood flow zone of Konda and Baliarpur mouzas of Savar, Amin Bazar, a division bench of the Supreme Court comprising Mr. Justice Syed Mohammad Dusthagir Hossain and Mr. Justice Mamnon Rahaman has restrained the Mayor, DCC and the Project Leader of Dhaka Mohanogoreer Bibhinno Elakar Obokatthamo o Paribesh Unnayan Prokolpa of DCC.

The case has been filed against, amongst others, the Secretaries, Ministry of Land, Ministry of Local Government and Rural Development and Cooperatives, Ministry of Environment and Forest, Ministry of Housing and Public Works, the Mayor, Dhaka City Corporation, the Chairman, Rajdhani Unnayan Kartripakkha, RAJUK, the Director General, Department of Environment (DoE).

The Hon’ble Court has issued Rule on the respondents to show cause as to why the impugned No Objection letter of Rajuk and the Site Clearance of DoE purporting to allow conversion /use of sub-flood flow zone and agriculture land of mouza Baliarpur and Konda as Waste Dumping Depot by the DCC shall not be declared to have been done without lawful authority and are of no legal effect. The rule has also required the government to show cause as to why it should not be directed to take appropriate measure to protect the flood flow zone of Konda and Baliarpur villages and to frame appropriate Rules under the Environment Conservation Act and the Dhaka City Corporation Ordinance prescribing the procedure for waste management. The matter is pending for hearing.

37. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 3055 of 2006 (Protection of Molgiri Khal)

On 9 April, 2006, BELA moved a writ petition concerning the unlawful filling up of the Molgiri khal located at Sayastabad Union, Barisal Sadar Upazilla, under district of Barisal. The writ petition was filed against Secretaries of Ministry of Land, Ministry of Environment and Forest, Ministry of Local Government, Rural Development and Cooperatives, the Mayor, Barisal City Corporation, the Director General, Department of Environment, Deputy Commissioner, Barisal, the Executive Engineer, Bangladesh Water Development Board, Barishal, Deputy Director, Department of Environment, Barisal Division, Upazila Nirbahi Officer, Barisal Sadar Upazila and Chairman, Sayastabad Union Parishad.

Upon hearing the petitioner a Division Bench of High Court Division of the Supreme Court comprising Mr. Justice Syed Mohammad Dusthagir Hossain and Mr. Justice Mamnon Rahaman has  issued a Rule Nisi calling upon the aforesaid respondents, to show cause as to why filling up of the Molgiri khal located at Sayastabad Union, Barisal Sadar Upazila, under district of Barisal by the Chairman, Sayastabad Union Parishad shall not be declared unauthorised, unlawful and against public interest. Moreover, why they shall not be directed to protect the Molgiri Khal from all unlawful encroachments, earth fillings and/or grabbing and restore it to its original position.

Pending hearing of the Rule, the Court passed an interim order of injunction restraining from any further earth filling over the Molgiri khal and also passed an order directing the concerned governmental agencies to demarcate on-site the boundaries of the Molgiri khal withappropriate devices to prevent any further encroachment/earth filling and/or grabbing over the same. The matter is pending for hearing.

38. Sramik Nirapotta Forum v. Bangladesh and others
Writ Petition No. 2019 of 2006 (Fire at KTS Garments)

In a writ petition moved on 8 March, 2006 by a coalition of 11 human rights and environmental organizations by the name Sramik Nirapotta Forum, a division bench of the Supreme Court comprising Mr. Justice Abdul Matin and Mr. Justice A T M Fazle Kabir has directed the Ministry of Home, DC, Chittagong, DG, Department of Environment and the President, BGMEA to produce their investigation reports regarding the cause of fire in the KTS Textile Mill before the Court within 15 (fifteen) days. The Hon’ble Court has also directed the President of BGMEA and the owners and management of KTS Textile Mill to submit in the form of a report a complete account of the amount paid to the victims as compensation and the basis for the computation of such amount within 15 days. The respondents have further been directed to take steps to provide necessary medical treatment for the victims of the fire on 23.02.2006 at the KTS factory.

In the public interest litigation filed by 11 NGOs challenging the inaction and omission of the responsible government agencies in preventing fire and other accidents in the garment sector the Court issued a rule upon the concerned agencies to show cause within four weeks as to why a National Committee shall not be formed to monitor compliance by garments factories with the applicable laws on fire safety and to inspect all garments factories operating in Dhaka, Narayanganj and Chittagong to ensure compliance with fire safety measures, and in particular to ensure that they have adequate numbers of gates which are kept open during working hours and also adequate emergency exits. The Court has required the respondents to show cause why they should not be directed to secure payment of adequate compensation to the workers who have been injured in the said fire and dependents of deceased workers. The matter is pending for hearing.

39.Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 586/06 (Construction of CNG Station in the Protected Batali Hill of Chittagong)

In a Writ Petition filed by BELA challenging the construction of CNG station in the Batalli Hill of Chittagong, a division bench comprising Mr. Justice Abdul Matin and Mr. Justice A T M Fazle Rabbi issued a rule upon the respondents to show cause as to why the permission granted by the Chittagong Development Authority (CDA) and the allotment made by the Railway in favour of M/s Rainbow CNG station to use 0.32 decimals of land in the Strategic Open Space of Batalli Hill for construction of Rainbow CNG Refueling Station and Conversion Workshop shall not be declared to have been issued without lawful authority.

Bangladesh Railway allotted land to one M/s Rainbow for construction of CNG station right at the bottom of the Batalli Hill in violation of the Master Plan of Chittagong and the Open Space Protection Act, 2000. This allotment rose serious public concern and following that the Chittagong Development Agency refrained from issuing any clearance to the Rainbow authorities for construction. However, subsequently the CDA gave conditional permission for clearance last November, 2005 that BELA has challenged in the petition it has filed. The petition has been filed against the Secretaries, Ministries of Communication, Environment and Forest and Housing and Public Works; the Mayor, Chittagong City Corporation; the Chairmen, Chittagong Development Authority and the Director Generals of Bangladesh Railway and Department of Environment, amongst others.

On motion hearing, the division bench comprising Mr. Justice Abdul Matin and Mr. Justice A T M Fazle Rabbi has issued rule upon the respondents to show cause as to why the permission granted by the CDA and the allotment made by the Railway in favour of M/s Rainbow CNG station to use 0.32 decimals of land in the Strategic Open Space of Batalli Hill for construction of Rainbow CNG Refueling Station and Conversion Workshop shall not be declared to have been issued without lawful authority. The respondents shall also show cause within three weeks as to why they shall not be directed to dismantle the construction and restore the open space to its original condition. The matter is pending for hearing.

40. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 4962/05 (Illegal Operation of a Brick Field in Naodaboga, Bogra)

In a writ petition filed by BELA against illegal construction and operation of a brick field, a division bench of the High Court issued a Rule Nisi calling upon the respondents to show cause as to why the establishment and operation of the brick manufacturing/kiln namely M/S A.R. Constructions in the village of Naodaboga, Upazilla- Sonatola, District-Bogra should not be declared to have been done unauthorized, illegal and in violation of laws. The Court also directed to take effective and appropriate measures to prevent the illegal activities in operating the said manufacturing/kiln and to remove the same from the prohibited proximity of the said village of Sonatola Upazila as the same is against public interest and in violation of the fundamental rights of the villagers. The matter is pending for hearing.

41. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 8815/05 (Illegal Operation of Brick Fields in Lalpur, Natore)

In a writ petition filed by BELA against illegal establishment and operation of listed brick fields at Lalpur under Natore district, a division bench of the High Court issued a Rule Nisi calling upon the respondents to show cause as to why the establishment and operation of the listed brick manufacturing fields/kilns should not be declared to have been done unauthorized, illegal and in violation of laws. The Court also directed to take effective and appropriate measures to prevent the operation of the listed brick manufacturing fields/kilns and to remove the same from the prohibited proximity of the said villages of Lalpur Upazila as the same is against public interest and in violation of the fundamental rights of the villagers. The matter is pending for hearing.

43. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 488 of 2006 (Protection of Rajshahi Town Protection Embankment from encroachment)

A writ petition was heard on 25 May, 2006 where the Court issued a Rule Nisi calling upon the respondents to show cause as to why the impugned failure to protect the banks of the river Padma and the Rajshahi Town Protection Embankment from encroachments by unauthorized persons, extraction of sands within prohibited proximity from the Embankment and plying of heavy vehicles over the Embankment thereby threatening the river Padma and the Embankment shall not be declared to have been without lawful authority and why they should not be directed to take immediate appropriate measures for removing the illegal encroachments and establishments from the river bank of Padma and the Rajshahi Town Protection for protecting and maintaining the river side and the Embankment in a manner best suited in the public interest. The matter is pending for hearing.

44. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 6025/05 (Prevention of the unlawful operation of Akij Bidi Factory)

In a Writ Petition filed by BELA against the unlawful operation of the Akij Bidi Factory Limited in the Village-North Musrat Madati, Post-Bhotmaree, Upazilla-Kaligonj, Lalmonirhat, the Hon’ble Court issued a Rule Nisi calling upon the Respondents to show cause as to why the establishment of the Akij Bidi Factory Limited (Bidi Manufacturing and Tobacco Crushing Centres) without obtaining any environmental clearance certificate from the concerned authorities being violative of the provisions of the Bangladesh Environment Conservation Act, 1995, the Environment Conservation Rules, 1997, the Factories Act, 1965 and the Factories Rules, 1979 and the fundamental rights of the villagers as guaranteed under the Constitution shall not be declared to be illegal, without lawful authority and having no legal effect and why the Respondents shall not be directed to take effective remedial measures to prevent the unauthorized and unlawful activities of the factory. The matter is pending for hearing.

45. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. .............(Maintenance of Jalalabad Shishu Park, Sylhet)

A Writ Petition was filed on 17 October, 2006 where Rule Nisi was issued by the Court calling upon the respondents to show cause as to why the omission to secure maintenance of the Jalalabad Shishu Park and Osmani Shishu Udyan of Sylhet Divisional City and allowing illegal encroachment and unlawful occupation over the same and using/purporting to use the same for commercial construction and other purposes threatening the greenery and environment of the City and the civic, environmental, recreational and aesthetic rights of the City dwellers in violation of the fundamental rights as guaranteed under Article 31 and 32 of the Constitution shall not be declared to be without lawful authority and is no legal effect and why the respondents shall not be directed to ensure proper maintenance and protection of said open spaces of the Sylhet City as required under the Sylhet City Corporation Ordinance, 2001 and Act No. 36 of 2000.

Pending hearing of the Rule, the Court also passed an order directing the respondents to— i) complete, within two months, the process of demarcation of the said two open spaces of the Sylhet City namely the Jalalabad Shishu Park and the Osmani Shishu Udyan; and ii) issue an injunction restraining Sylhet City Corporation from constructing any commercial building at Jalalabad Shishu Park or otherwise converting the said Park. The matter is pending for hearing.

46. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. ......... (Protection of Kalibari Pukur, a Public Water body in Sunamgonj)

A writ petition has been filed by BELA on against the concerned agencies to protect the Kalibari Pukur, a public water body, located at Sunamgonj Paurashova, under the district of Sunamgonj from illegal earth filling. The Court issued a rule on 14th August 2006 against the concerned agencies as to why they shall not be directed to protect the Kalibarir Pukur from all encroachment, earth-filling and grabbing and restore the same to its original position. The matter is pending for hearing.

47. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 2020 of 2006 (Preventing cutting of Shoi Tila)

A writ was filed where the Court issued a Rule Nisi calling upon the Respondents to show cause as to why the impugned Agreement signed between the Assistant Commissioner (Land) of Chhatak Upazila and Chatak Cement Factory, represented by the Managing Director on 27.03.05 leasing out 22.65 acres of khas land of the popularly known Shoi Tila in favour of M/s. Chhatak Cement Company Ltd. to use the same for industrial activity and the impugned action and omission of the responding in allowing removal of earth from the said hillock shall not be declared to be without lawful authority and of no legal effect and why they shall not be directed to take all necessary and effective measures to prevent cutting or razing of hillocks in the Fakirtila and Nijgaon Mouzas under Chhatak Upazilla, and Nasimpur Mouza under Doarabazar Upazilla, District Sunamgonj by any one. The matter is pending for hearing.

48. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 8603/05 (Stone crushing mill in residential area at Jaflong)

A Writ Petition was filed on 4 December, 2005 where Rule Nisi was issued by the Court calling upon the respondents to show cause as to why the unauthorized establishment and operation of stone crushing mills/machines in the Jaflong Forest area in Jaintapur and Goainghat Upazilas shall not be declared to be in violation of laws, against public interest and as such illegal, without lawful authority and of no legal effect. The Court also directed the concerned authorities to evict the illegal stone crushers from the protected and ecologically sensitive forest area of Jaflong, to prevent any further unlawful and unauthorized activities of stone crushing in the said area and to realize compensation for the said illegal and destructive activities. The matter is pending for hearing.

49. Abdul Hamid and Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 6097 of 2006 (Polluting residential area by M/s. Bonoful Bread factory)

A Writ Petition was filed by BELA against the Secretary of MoEF, Mayor, Divisional Commissioner, DG of DoE, Deputy Commissioner and other concerned agencies for the failure of respective authorities to take any action against Bonoful Avijat Confectionary & Pastry Shop (Pvt.) Ltd. for running a factory in a residential area without an environmental clearance certificate & causing health hazards to the inhabitants of the surrounding area.

In the writ petition the Hon’ble court issued a rule calling upon the respondents as to why the respective authorities should not be directed to take appropriate actions against the factory owner for its unlawful operation in the residential area and why they should not be directed to recover appropriate compensation for the environmental damages caused by the factory. The matter is pending for hearing.

50. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. ....... August 31 2006(Shrimp Cultivation at Botiaghata, Khulna)

A Writ Petition was filed against Secretaries, Ministry of Environment  & Forest, Ministry of Land, DG-DoE, Deputy Commission and others against the forced flow of saline water by identified shrimp cultivators over the agricultural lands of the villages Halia and Shialidanga in the Bhandarkot Union under Upazilla Botiaghata, District–Khulna affecting thereby fundamental rights of the villagers as guaranteed under Articles 15, 31, 32, 40 and 42 of the Constitution of Peoples’ Republic of Bangladesh.  

After hearing the Petitioner, the Hon’ble Court was pleased to issue a Rule Nisi calling upon the respondents to show cause as to why allowing saline water shrimp cultivation in the Halia and Shialidanga villages under Bhandarkot Union of Botiaghata Upazilla,Khulna; and failure to prevent forced intrusion of salt water over the agricultural lands of the villages of Halia and Shialidanga in the Bhandarkot Union under Botiaghata Upazilla, by identified shrimp cultivators shall not be declared to be without lawful authority and of no legal effect as being violative of the Bangladesh Water Development Board Order, 2000; The Environment Conservation Act, 1995; Shrimp Mohal Management Policy;  Circulars of the Cabinet Division dated 01 January, 1998 and 03 September, 1998 and the fundamental rights of the land owners and inhabitants of the villagers of Halia village as guaranteed under Articles 31, 32, 40 and 42 of the Constitution.

The respondents were also directed to prevent saline water flow in the villages of Halia and Shialidanga and to compensate the land owners of Halia and Shialidanga villages for the loss suffered by them due to forced flow of saline water over their lands caused by the identified shrimp cultivators. The matter is pending for hearing.

51. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 11594 of 2006 (Pollution caused by a polythene factory at Keranigonj)

A Writ was filed against the establishment and operation of a Plastic & Polythene Recycling Factory named Hafsa Enterprise. After hearing the Petitioner, the Court issued a Rule Nisi calling upon the respondents to show cause as to why the establishment and operation of the Hafsa Enterprise without obtaining any environmental clearance certificate and adopting pollution fighting devices being violative of the provisions of the Bangladesh Environment Conservation Act, 1995, the Environment Conservation Rules, 1997, the Factories Act, 1965 and the Factories Rules, 1979  and threatening the fundamental rights of the villagers as guaranteed under Articles 31 and 32 of the Constitution shall not be declared to be illegal, without lawful authority and having no legal effect and why the respondents shall not be directed to take effective remedial measures to prevent the unauthorized and unlawful activities of respondent No. 9 as sanctioned and required under the applicable laws.

Pending hearing of the Rule, the Court also passed an interim order of injunction restraining the owner of the factory from continuing with his polythene recycling operations in the name of Hafsa Enterprise (Plastic & Polythene Recycling Factory) situated and operating in village Kamarta, under Keranigong upazila, Dhaka. The matter is pending for hearing.

52. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 7466 of 2006 (Saw mill within the Reserved Forest at Kuakata) A writ was filed challenging the operation of a saw mill situated within prohibited proximity of reserved forest in Kolapara Upazilla under the district of Patuakhali. Rule Nisi was issued calling upon the respondents to show cause as to why the establishment and operation of the saw mill called Abu Saleh Rice Flour and Sawmill in mouza Latachapali, JL No. 34, Khatian No. 1310, Dag no. 5254 within the prohibited proximity of the reserved forest of Amtolee and without obtaining license/clearance from the concerned authorities and also the failure of the other respondents in preventing the same as per the Forest Act, 1927, the Sawmill (License) Rules, 1998 and the Environmental Conservation Act, 1995 and the Rules of 1997 made thereunder shall not be declared illegal, without lawful authority and of no legal effect. The matter is pending for hearing.

53. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. ................. (Brick fields in agricultural land in Barisal)

Challenging the establishment and operation of the listed brick manufacturing fields/kilns in Barisal, BELA filed a writ petition where the Hon’ble Court issued a rule nisi calling upon the respondents to show cause as to why the establishment and operation of the listed brick manufacturing fields/kilns should not be declared to have been done unauthorized and illegal as the same violate the provisions of the Local Government (Union Parishads) Ordinance, 1983, the Bangladesh Environment Conservation Act, 1995 and the Environment Conservation Rules of 1997 made thereunder, the Brick Burning (Control) Act, 1989, the Smoke Nuisance Act, 1905, Penal Code, 1860 and why the respondents should not be directed to take effective and appropriate measures to prevent the operation of the brick manufacturing fields/kilns and to remove the same from the prohibited proximity of the villages of Uttar Rahamatpur, Khudrakatthi, Mohishadi, Doharika and Mirgonj under Babuganj Police Station, District Barisal as the same is against public interest and in violation of the fundamental rights of the villagers guarantee under Articles 27, 31, 32, 40 and 42.

54. Bangladesh Environmental Lawyers Association (BELA) v. Bangladesh and others Writ Petition No. 3475 of 2003 (Protection and Maintenance of Parks and Playgrounds of Dhaka)

A petition was moved on 11 May, 2003 before the High Court Division by BELA seeking proper maintenance and protection of 10 playgrounds and 61 parks of the City.

This petition was filed against the Mayor, Dhaka City Corporation (DCC), Chief Engineer, Public Works Department (PWD) and Chairman, RAJUK the petitioner prayed for direction to (i) ensure proper maintenance and protection of open spaces of the City as required under the Town Improvement Act, 1953, the Dhaka City Corporation Ordinance, 1983 and the Open Space Protection Act, 2000, (ii) complete the process of demarcation of all open spaces, (iii) develop, time bound plan for development and maintenance of the open spaces as required under the Town Improvement Act, 1953 and the Dhaka City Corporation Ordinance, 1983, and (iv) implement the said plan within such time as may be fixed by the Court.

Upon hearing the petitioner, the Division Bench of the High Court Division comprising Mr. Justice Md. Tafazzal Islam and Mr. Justice A. F. M. Abdur Rahman has issued a Rule Nisi calling upon the respondents to show cause why they should not be directed to ensure proper maintenance and protection of open spaces of the city as a Annexure- C and C-1 (10 playgrounds and 61 parks of the City) as required under the Town Improvement Act, 1953, the Dhaka City Corporation Ordinance, 1983 and the Open Space Protection Act, 2000.and or pass such other or further order or orders as to this court seem fit and proper.

Pending hearing of the rule the Court also directed to (i) complete within six months from the date of the order the process of demarcation of all open spaces as of annexure C and C-1 protect these as envisaged under the open space protection Act, 2000 (ii) develop a time bound plan for development and maintenance of the open spaces as required the Town Improvement Act 1953 and the Dhaka City Corporation Ordinance 1983 and (iii) implement the said plan within such time as may be fixed by this Court and the respondents Nos. 2 and 5 are also directed to submit periodic reports of compliance time bound directors of this court and or require any further person, body or authority to monitor such progress and report in a manner to be determined by this Court.

The Rule has been made returnable within 3 weeks from date. The matter is now pending for hearing.

Epilogue:

The society in Bangladesh is responding to the global call for protection of environment. With the adoption of new sets of laws and rules, the legal regime as it stands today sounds more progressive and sensitive. With a demand to implement law, overcome the shortcomings and ensure adequate institutional and policy support, the civil society activism is developing vigorously. Such activism will support and foster changes in law and institutional attitude and the gradual rise in public awareness is expected to ensure responsible behaviour from all sectors. The judicial commitments to uphold constitutional values will continue to develop a proper environmental jurisprudence with due regard to human rights and dignity.

Bangladeshis have always demonstrated the spirit to fight back hazards and disasters. But in the changing scenario of global environment, there are factors that remain outside the control of any particular community or state and require activism on part of the global community. Sea level rise is one such phenomenon that has special pertinence to a low-lying delta like Bangladesh. The scientist apprehend that one meter rise in the sea level would displace 11% of the population and inundate 17.5% of the total land area of Bangladesh. While there is need to continue with the progress of legal and judicial activism at the national front, it is also of crucial importance that the global community would advance the principle of ‘common but differentiated responsibility’ to address challenges like this. Otherwise, all our achievement may be undermined for the ‘greed’ of a few and at the cost of the deprived.

-----------------------
[1] Principle 1 of the Rio Declaration on Environment and Development [2] ibid, Principle 3
[3] ibid, Principle 4
[4] ibid, Principle 8
[5] ibid, Principle 7
[6] ibid, Principles 13 and 16
[7] ibid, Principle 15
[8] Principle 17
[9] Principle 10
[10] ibid
[11] The Black’s Law Dictionary 8th Edition
[12] Richard A. Posner, The Federal Courts: Crisis and Reform 3 (1985) [13] Bradley C. Canon - "Defining the Dimensions of Judicial Activism", Judicature, 66.6, 1983 [14] Keenan Kmiec in a 2004 California Law Review article

[15] Keenan D. Kmiec, The Origin and Current Meanings of "Judicial Activism," 92 Cal. L. Rev. 1441, 1447 (2004).] [16] Justice Antonin Scalia's dissent in Romer v. Evans[1]
[17] John Hart Ely, Democracy and Distrust. Cambridge: Harvard University Press, 1980, chapters 4-6. [18] Mann, Thomas E. (January 26, 2010). "Commentary: Citizens United vs. FEC is an egregious exercise of judicial activism". McClatchy News Service. http://www.mcclatchydc.com/2010/01/26/82982/commentary-citizens-united-is.html. Retrieved 2010-04-29. [19] http://www.bartleby.com/59/14/judicialrest.html

[20] A Justice for All, by Kim Isaac Eisler, page 11; ISBN 0-671-76787-9 [21] Statistical Yearbook of Bangladesh, 2000, Bangladesh Bureau of Statistics, January, 2002, Dhaka [22] Chapter XIII-A-1, Fifth Five Year Plan (1997-2002), Planning Commission, Ministry of Planning, Government of Bangladesh, June, 1997, Dhaka [23] Chapter XIII-C-28, ibid

[24] Chapter XIII-E-43, ibid
[25] UNDP Human Development Report, 1996 for 1993
[26] BELA Newsletter, Vol VIII, June 2000-May, 2001
[27] Farooque. Mohiuddin, Reflections on the State of Environment and Environmental Law [28] Act No. I of 1995
[29] Section 2 A of the Environment Conservation (Amendment) Act, 2002 (Act No. IX of 2002) [30] Section 4(1) of the Environment Conservation (Amendment) Act, 2002 (Act No. IX of 2002) [31] Gazette Notification of the Ministry of Environment and Forest (MoEF), 19 April, 1999, memo No. pabama-4/7/87/99/245 [32] Ordinance No. II of 1971

[33] Section 9 of the Agricultural Pesticides Ordinance, 1971 [34] Section 6A of the Environment Conservation (Amendment) Act, 2002 [35] Section 9 of the ECA, 1995
[36] Section 15 of the ECA, 1995
[37] Environment Court Act, 2000 (Act No. XI of 2000)
[38] Forest (Amendment) Act, 2000 (Act No. X of 2000)
[39] Act No. XXXVI of 2000
[40] Sections 4,5,6,8,11,12,14,15,29,32 of the Forest Act, 1927 (Act No. XVI of 1927) [41] Gazette Notification of the Ministry of Land (MoL), Branch 7, 4 September 1995 [42] Sections 7 and 8 of the Embankment and Drainage Act, 1952 (Act I of 1953) [43] Section 73 of the Town Improvement Act, 1953 (Act No. XIII of 1953) [44] Section 8 of the Territorial Waters and Maritime Zones Act, 1974 (Act No. XXVI of 1974) [45] Section 150 of the Motor Vehicle Ordinance, 1983 (Ordinance No. LV of 1983), section 8 of the Smoke Nuisance Act, 1905 (Bengal Act III of 1905), sections 6 and 7 of the ECA, 1995, section 3 of the Protection and Conservation of Fish Act, 1950 (Bengal Act XVIII of 1950) [46] Dr. Mohiuddin Farooque Vs. Bangladesh and others 48 DLR, 434 HC [47] Dr. Mohiuddin Farooque vs. Bangladesh and others, 48 DLR 438 HC [48] Dr. Mohiuddin Farooque Vs. Bangladesh and Others, 49 DLR (AD) 1 [49] Dr. Mohiuddin Farooque Vs. Bangladesh and Others, 1998 DLR 84 HC [50] Writ Petition No. 4098 of 2000, Bangladesh Environmental Lawyers Association vs. Bangladesh and others [51] Writ Petition No. 891 of 1994, Judgment Delivered on 15 July 2001 [52] Writ Petition No. 300 of 1995, Bangladesh Environmental Lawyers Association vs. Bangladesh and others, Judgment Delivered on 27 March 2002

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