IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 4091 OF 2017

In the matter of:

An application under article 102 of the Constitution of the People’s Republic of Bangladesh.

AND                            In the matter of:

Hazi Md. Nazrul Islam

                                                   ....Petitioner

-Versus-

Bangladesh, represented by the Secretary, Ministry of Environment and Forest, Bangladesh Secretariat, Shahabagh, Dhaka and others

..... Respondents

None appears

         ...... For the Petitioner Mr. Muntasir Uddin Ahmed, Advocate

                                                             .... For the respondent No. 2

             The 26th August, 2021             Present:

Mr. Justice Md. Khasruzzaman

               and

Mr. Justice Md. Mahmud Hassan Talukder

Md. Khasruzzaman, J:

This is an application for discharging the Rule.

In  the  application  under  article  102  of  the  Constitution,  on 26.04.2017 the Rule Nisi was issued calling upon the respondent Nos. 2-5 to show cause as to why the impugned Memo No.30. 26. 38. 3. 691.210914/fËn¡- 1263 dated 29.12.2016 issued under signature of the respondent No.4 for removal of the Brick field of the petitioner and

giving him only 15 days notice should not be declared ultra vires and illegal to have been issued without lawful and is of no legal effect and/or pass such other or further order or orders as this Court may seem fit and proper.  

At the time of issuance of the Rule, the impugned Memo No. 30.26.38.3.691.210914/fËn¡- 1263 dated 29.12.2016 was stayed for a period of 6(six) months from 26.04.2017 and subsequently, it was extended time to time and lastly on 30.12.2019 it was extended for a period of 6 (six) months from date and thereafter the said order was not extended and as such it was expired on 29.06.2020.

The  respondent  No.2  filed  an  affidavit-in-opposition  and  an application for discharging the Rule, and those were receipt by the learned Advocate for the petitioner.

Mr.  Muntasir  Uddin  Ahmed,  the  learned  Advocate  for  the respondent No. 2, submits that the petitioner obtained Environment Certificate  from  their  office  and  thereafter  it  was  extended  till 30.06.2016  and  subsequently  his  Environment  Certificate  was  not renewed. But the petitioner on the basis of this writ petition has been continuing  his  business  within  one  kilometer  from  the  newly established Central Jail, Rajendrapur, Keranigonj.  He also submits that if the petitioner is aggrieved by any order passed by the Deputy Director of the Department of Environment, he can file appeal under section 14 of the Bangladesh Environment Conservation Act, 1995 and as such this writ petition is not maintainable.

The petitioner did not deny the factual matter as stated by the respondent No.2 that the brick field is situated within one Kilometer

from the Central Jail, Rajendrapur, Keranigonj and thus it goes against

the petitioner.

It is stated that section 8(4) of the BU cÖ¯‘Z I fvUv ¯’vcb (wbqš¿Y) AvBb, 2013 states that prior the enforcement of this section, if any clearance

certificate holder has already established the brick kiln within the

prohibited area or within the distance as stated in sub section (3) ,

then, he will transfer the said brick kiln in a suitable place as per

provision of this act within 2 years of time from the enforcement of

this Act, otherwise, his licence will be cancelled. Despite expiry of

said 2 years of time in 2015, the petitioner did not transfer his brick

field as per the Act, rather, he has been operating the brick field in

question without any ECC or its renewal and thereby, the Deputy

Director of Environment issued the impugned letter of direction upon

the petitioner to transfer his brick field within 15 days upon stopping

the operation of the brick field, otherwise, legal action would be taken

against him (Annexure-G).

It is stated that writ petition is not maintainable in its present

form as the petitioner has challenged the order of direction given by

the Deputy Director of the Department of Environment to transfer his

brick field within 15 days and against the same, there is an appropriate

forum available for the petitioner to agitate his grievances by filing

appeal  before  the  Appellate  Authority  as  per  section  14  of  the

Bangladesh  Environment  Conservation  Act,  1995.  However,  the

petitioner filed the instant writ petition without exhausting the given

statutory alternative forum, thus, appreciating the same, the Rule may

kindly be discharged.

It is stated that the brickfield in question is situated within 1

kilometer area of prohibited zone which is complete violation of section-8(3)(ka) and (Umo) of the BU cÖ¯‘Z I fvUv ¯’vcb (wbqš¿Y) AvBb, 2013 and based on the same, the Deputy Director of the Department of Environment has rightfully and with lawful authority issued the letter

containing direction upon the petitioner to transfer his brick field in an environmental suitable place.

It is stated that the Environment Conservation Act is the parent

law and the respondent Ministry and Department of Environment are

the regulatory body and retains the authority to issue Environment

Clearance Certificate (ECC) under different categories and renewal of

it  and  in  the  event  of  violation  of  any  of  the  given  conditions

stipulated in the ECC, the Department of Environment retains the

authority to take any appropriate action under the parent laws, which

includes issuance of relocation or removal or appropriate notice and

thus, as per section 4 of the Environment Conservation Act, 1995, the

Director General of the Department of Environment can delegate his

power  and  function  to  any  person  for  the  conservation  of  the environment, and improvement of environmental standards, and for

the control and mitigation of environmental pollution and in pursuant

to  the  same,  the  Deputy  Director  of  Environment  has  issued  the

impugned letter of direction. Thus, the respondent No. 4 has issued

the  same  with  lawful  authority  which  got  legal  forces  and  the

petitioner is bound to obey the direction.

It appears that section 8(4) of the BU cÖ¯‘Z I fvUv ¯’vcb (wbqš¿Y) AvBb, 2013 provided the petitioner 2 years of time from the date of enforcement of this Act to transfer his brick field in an environmental

suitable place which was expired in 2015, despite so, the petitioner,

without  transferring  the  brick  field,  has  been  operating  the  same

without any Environment Clearance  Certificate or its renewal  and

thereby,  finding  no  alternative,  the  respondent  No.  4  directed  the

petitioner to transfer his brick field within 15 days upon stopping the

operation of the brick field.

Considering the submissions of the learned Advocate for the respondent No.2 and the statements made in the application, we have

found substance of the application.

Accordingly, the application is allowed.  

In the result, the Rule Nisi is discharged.  

Communicate the order.

Md. Mahmud Hassan Talukder, J:

    I agree.