1
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
WRIT PETITION NO. 8089 OF 2013
IN THE MATTER OF:
An application under Article 102(1) and 2(a)(i) of the Constitution of the People’s Republic of Bangladesh.
AND
THE MATTER OF:
1. Ain O Salish Kendro (ask), being represented by its Executive Director Sultana Kamal, 7/17 Block-B, Lalmatia, Dhaka.
2. Association for Land Reforms and Development (ALRD) being represented by its Executive Director, Md. Shamsul Huda, House # 1/3, Block-F, Lalmatia, Dhaka.
3. Bangladesh Environmental Lawyers Association (BELA), being represented by its Chief Executive, Syeda Rizwana Hasan, Advocate, Supreme Court, House-15A, Road-3, Dhanmondi, Dhaka.
4. Bangladesh Poribesh Andolon (BAPA) being represented by its General Secretary Abdul Matin, 9/12 Block-D, Lalmatia, Dhaka.
5. Institute of Architects Bangladesh (IAB) represented by its ex-President Architect Mubasshar Hussain, House-11, road-4, Dhanmondi R/A, Dhaka.
6. Porbesh Bachaon Andolon (POBA) being represented by Chairman Abu Naser Khan 58/1, Kalabagan, 1st Lane, North Dhanmondi, Dhaka.
7. NIJERA KORI, being represented by its Coordinator, Khushi Kabir, 7/8, Block-C, Lalmatia, Dhaka.
… PETITIONERS
- V E R S U S -
1. Bangladesh, represented by the Secretary, Ministry of Housing and Public Works, Government of the People’s Republic of Bangladesh, Bangladesh Secretariat, Shahabagh, Dhaka.
2. The Secretary, Ministry of Land, Bangladesh Secretariat, Shahabagh, Dhaka.
3. The Secretary, Ministry of Environment and Forest, Bangladesh Secretariat, Shahabagh, Dhaka.
4. Rajdhani Unnayan Kartipakkha (RAJUK), represented by its Chairman, Rajuk Bhaban, P.S. Motijheel, Dhaka.
5. The Director General, Department of Environment, Paribesh Bhaban, E-16, Sher-E-Bangla Nagar, Agargaon, Dhaka.
6. The Deputy Commissioner, Office of the Deputy Commissioner, Gazipur.
7. Upazila Nirbahi Officer, Kaligonj Upazila, Gazipur.
8. The Project Director, Purbachal New Township Project Rajuk Bhaban, P.S. Motijheel, Dhaka.
9. Mr. Ataur Rahman, M/S ARK-IH JV, House 307, 1st floor, Road 21, New DOHS, Mohakhali, Dhaka.
10. Mr. Nurujjaman Khan, Village-Purbogram, Thana-Rupgonj, District-Narayangonj.
... RESPONDENTS
AND
IN THE MATTER OF:
Articles 15, 18A, 21, 31, 32, 40 and 42 of the Constitution of People’s Republic of Bangladesh; Acquisition and Requisition of the Immovable Property Ordinance, 1982 (Ordinance No. XXXIII of 1982); the Bangladesh Environment Conservation Act, 1995 (Act No. I of 1995) and the Environment Conservation Rules, 1997 made thereunder ; …….(Act No. XXXVI of 2000); the Forest Act, 1927; the Forest Policy, 1994; the Forestry Sector Master Plan, 1993-2012; The Town Improvement Act, 1953; the Circular of Ministry of Land related to acquisition of agricultural land dated 31 March, 1992 and other applicable laws and policies.
AND
IN THE MATTER OF:
Layout Plan of the Purbachal New Town Project (impugned Plan as of Annexure “J”) of respondent No. 4 prepared without any environmental impact assessment of the Project and environmental clearance from respondent No. 5 and in deviation from the existing land use plan of the Borokau and Parabarth mouzas of Nagari Union under Kaliganj Upazilla of Gazipur district.
AND
IN THE MATTER OF:
Implementation of the Purbachal New Town Project by respondent No. 4 in the wetlands and forested areas of Borokau and Parabarth Mouzas of Nagari Union Under Kaliganj Upazilla of Gazipur district ignoring totally the lawful recommendations of respondent No. 5 and causing destruction of the sound environment and unique ecology of the said area.
To
Mr. Justice Md. Muzammel Hossain, the Hon’ble Chief Justice of Bangladesh and his companion Justices of the said Hon’ble Court.
The humble petition of the above named Petitioners most respectfully-
S H E W E T H:
1. That Petitioners are registered non-governmental organizations and representatives of professional groups working in their respective fields to advocate for planned development of townships, promote safety and comfort of the City dwellers and defend their rights to a safe, secured and descent environment and living. They have all been duly authorized by their respective committees/boards to represent their organizations/groups in all proceedings, cases etc. and as such are competent to swear the affidavit.
2. That the petitioners have proven experience nad expertise in protecting human, environmental and civic rights and promoting the cause of justice. There are many instances where the petitioners have upheld the rule of law, protected the vulnerable and promoted access to justice by invoking the protective role of the High Court Division of the Supreme Court under Article 44 and 102 of the Constitution.
3. That respondent No. 1 is the Ministry of Housing and Public Works responsible, inter alia, for urban development in specific cities and townships and is the line Ministry of respondent No. 4, Respondent No. 2 is the Ministry of Land responsible for land management of the country in the best interest of the people. Respondent No. 3 is the Ministry of Environment and Forest having statutory responsibility for the management and conservation of environment and its various Resources and is also the line ministry of respondent No. 5, Respondents No. 4 and 8 are respectively Rajdhani Unnayan Kartipakkha (hereinafter referred to as “RAJUK”) created under the Town Improvement Act, 1953 and authorized and entrusted with the responsibilities, among others, to develop planned township. Respondent No. 5 is the Department of Environment (hereinafter referred to as “DoE”) which is the implementing agency of the Bangladesh Environment Conservation Act 1995 (Act No. I of 1995) and is entrusted with all responsibilities to regulate development through the issuance of environmental clearance. Respondents No. 6 and 7 are respectively the Deputy Commissioner of Gazipur and the Upazilla Nirbahi Officer of the Kaligonj Upazilla having responsibility with regard to land administration, public safety and comfort at the local level. Respondents No. 9 and 10 are appointed by respondent No. 4 to undertake land development activity of its Purbachal New Town Project.
4. That the Purbachal New Town Project (hereinafter referred to as the said Project) of respondent No. 4 is being implemented over 6140 acres of land located in between the Shitalakhya and the Balu river at Rupgonj police station under Narayanganj district and the Kaliganj Police Station under Gazipur district. The project commenced in 1995 and is expected to be completed by 2015 after developing 26,000 plots and 62000 flats with needed civic facilities. In addition to creation of plots and flats, the objectives of the Project include maintaining the balance of environment by proper urbanization, creating environment friendly and sustainable atmosphere.
5. That in the Gazipur district, the government vide notification dated 15.09.2005 and 29.10.2009 acquired about 1600 acres of land mentioned against L.A case Nos. 3/2000-2001, 2/2000-2001 and 7/2001-2002. Worth noting that the process of land acquisition was first initiated in Gazipur in 1993-94 and was subsequently withdrawn vide Gazette Notification dated 9 March, 2000.
Truecopy of the notification are annexed hereto and marked as Annexures “A” and “A-1”
6. That the said around 1600 acres of land subjected to the process of acquisition under the L.A cases referred to in paragraph 5 above lie in the Borokau and Parabartha Mouza of Nagari Union, P.S. Kaliganj district Gazipur.
7. That these two mouzas host the five villages of Borokau, Bashabashi Kalikuti, Guchchhogram and Parabartha. The land formation of thses two mouzas are largely of Gojari Garh type that has a dense tree coverage of 42.46%.
Truecopies of some satellite image of forested land of the area are annexed hereto and marked as Annexures “B” series.
8. That ever since the notification for acquisition of land was published, the local people started resisting the same not only because the acquisition will take away from them their homestead and agricultural land which is 49.22% (excluding the agriculture low land) of the total land area but will diminish the unique greenery of the villages for the creation of housing plots for few privileged.
9. That as the issue of acquisition has been settled by the Appellate Division vide judgment dated 23 November, 2008 (CA 83-84/2006) the local community approached the relevant agencies for changing their decision of implementing the project in these two mouzas on social and ecological reasons. On their appeal and based on the directive of the Hon’ble Prime Minister, her office vide letter dated 30 March, 2010 directed for protection of the forested area in the implementation of the said Project.
Truecopy of some appeals of the local people and letter of the PMs office dated 30 May, 2010 are annexed hereto and marked as Annexures “C”, “C-1” and “C-2”.
10. That following appeal of the local community, a team from respondent No. 5 visited the area on 15-02-2010 and submitted a report on 24-02-2010. The said report of the DoE clearly started that as the project will require large-scale land development it will harm the dense sal forest, the rich orchards and the medicinal plant gardens inflicting devastating impact on biodiversity. The DoE report also narrated how important it is to protect the forest and tree cover of the area in order to escape and mitigate the adverse effect of climatic changes.
11. That the said report of respondent No. 5 stated as follows:
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Truecopy of the said report of respondent No. 5 dated 24-4-2010 is annexed hereto and marked as Annexure “D”.
12. That it is evident from paragraph 4 of the said report of the DoE that the Project of respondent No. 4 has not obtained the mandatory environmental clearance certificate which is turn shows that no Environmental Impact Assessment (EIA) has been done for a Project of such magnitude.
13. That the fact that the five villages of the two mouzss have dense tree coverage is evident from the fact that against the L.A Case No. 3/2000-2001 the compensation to be paid against trees (taka 15,73,68,799) is significantly higher than the compensation to be paid against land (taka 12,69,51, 202/50).
Truecopy of the compensation statement as prepared by the office of respondent No. 6 is annexed hereto and marked as Annexure “E”.
14. That following the directives of the Prime Minister’s Office a private consulting firm Data Expert Pvt. (datEx) was appointed by respondent No. 4 vide its letter dated 9th November 2009 to undertake the GPS and Total Station Based Topographic Survey of the said area.
Truecopy of the appointment letter in favour of the Data Expert Pvt. Dated 9 November, 2009 is annexed hereto and marked as Annexure “F”.
15. That the Data Expert Pvt. Conducted the survey jointly with the representatives of the local people. A total of 106 survey log sheets depict that in addition to the 190. 73 acres of dense Sal forest, the total surveyed 4803 bighas (1585.99 acres) of land comprises of dense tree coverage, orchards, medicinal plants and bamboo. Copies of the date log sheets surveying 106 households with dense forest may be produced during the time of hearing as the same will particularize the area where the trees are standing.
16. That according to the existing land use map prepared by the Data Expert Pvt., of the total 1600 acres proposed for the said project of respondent No. 4, 486.77 acres (30.51%) are mixed forest, 190.73 acres are forest (11.95%), 19.77 acres are wetlands (1.24%), 0.02 acres are khal (0.01%), 629.70 acres are cultivable land (39.47%) and 97.70 acres remain agriculture lowland (6.12%).
Truecopy of the map of the existing land use of the said two mouzas (duly attested by the local member of parliament) as prepared jointly by respondent No. 4, the Data Expert Pvt. And the local people is annexed hereto and marked as Annexure “G”.
17. That although the Data Expert Pvt. Vide their letter dated 9 March, 2011 submitted the existing layout plan of the two mouzas to respondent No. 4, the latter giving various excuses is denying the petitioners a signed copy of the same.
Truecopy of the letters of petitioner No. 3 seeking signed copy of the map submitted by the Data Expert Pvt. To Rajuk vide its letter dated 28 January, 2013, 11 March, 2013, 22 April, 2013, 3 June, 2013 and 4 July, 2013 are annexed hereto and marked as Annexures “H”, “H-1”, “H-2”, “H-3” “H-4” and “H-5”
18. That as the local people kept on resisting the destructive plans of forest and tree felling of respondent No. 4, the State Minister for Ministry of Housing and Works visited the site and in public directed for a joint survey of the area in order to keep the forested land and lands with orchards and standing trees undisturbed and free from the creation of plots.
Truecopies of some pictures of respondent No. 4 visiting the site and having consultation with the local people are annexed hereto and marked as Annexure “I” series.
19. That sharply contrasting from the findings of the joint survey and totally ignoring commitments and cautionary notes of the political high ups and the Statutory agencies (As of Annexures “C-2” “D” and “G” series), respondent No. 4, finalized the lay out plan for the said Project proposing therein to keep only 5.7% of the total project area as forest and converting the rest into 3, 5 and 10 kathha plots! The lay out plan so far it relates to the Parabartha and Borokau mouzas of the Nagari union is thus a mockery to the notion of sustainable development, the constitutional commitment to project forest, wetlands and their riches for the present and future citizens and negate the purpose of the acquisition and the project of maintaining the balance of environment by proper urbanization and creating environment friendly and sustainable atmosphere; hence, the said layout plan so far it relates to the Parabartha and the Borokau mouzas is being impugned by the petitioners.