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Microsoft Word - Writ Petition 1789 of 2011 Disposed of with direction. on 16.03.2023 Environment Final

IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION) Writ Petition No. 1789 of 2011

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Advocate Khan Himayat Uddin and another

...........the petitioners

-Versus-

Government of Bangladesh, represented by the Secretary,  Prime  Minister’s  Secretariat, Tejgaon, P.S.- Tejgaon, District: Dhaka

                                                 .......Respondents Mr. Manzill Murshid, Advocate

                               ...…For the petitioners

Mr. ABM Abdullah Al Mahmud, DAG

                    ... For the respondents

Present   

Mr. Justice K.M. Kamrul Kader

And

Mr. Justice Mohammad Ali

Heard On: 18.11.2021, 08.06.2022,   10.08.2022,  24.10.2022, 05.12.2022, 17.01.2023

And

Judgment On: 16.03.2023.

K. M. Kamrul Kader, J :

On  an  application  under  Article  102  of  the  Constitution of  the

People’s  Republic  of  Bangladesh  Rule  was  issued  on  02.03.2011,  in following terms:-

“Let  a  Rule  Nisi  was  issued  calling  upon  the respondents to show cause as to why a direction should not  be  given  upon  the  respondents  to  carry  out  the


1

social forestation project in a way to make it useful for the public and environment development and to implement the plantation of forest as proposed in the letter dated 15.01.2009 (Annexure-A-2) to raise the nutrition level and standard of health of the citizen and /or pass such other or further order or orders to this court may seem fit and proper.

Facts relevant for disposal of the Rule are brief that, the petitioner is  an  Advocate  and  well  known  tree-lover.  He  had  an  extensive knowledge on cultivation of land and tree. His theory on “poverty relieve by fruit plantation”, is already well-known plan through newspapers and appreciated by different organ of the Government. The petitioners as a member of Khulna Bar Association and being a conscious citizen, he is trying  to  execute  a  workable  social  forestation  plan.  As  a  conscious citizen, the petitioner sought for enforcement of social forestation project, in a way to make it useful for the public and to implement the plantation of forest for environmental development of the Country and its people. Thus,  the  petitioner  filed  this  application  under  Article  102  of  the Constitution  of Bangladesh  as  a public Interest  Litigation in  order  to playing a role to fulfil the nutrition of the citizen as the matter directly affect the people and environment of Bangladesh.

It is stated that forestation has been a part of “Daridro Bimochon Kormoshuchi” (DBK). However, this movement which has been taken by the Government has proven fruitless as the trees has been planted are not useful to the people. As it can be seen that previously the government took project relating to ‘forest’ and as such, one project for ‘fruit’ trees, required  to  be  planted.  It  is  stated  that  the  Government  may  took initiatives to execute a workable social forestation plan relating to (1) forest, (2) fruit and (3) organic trees required to be planted. Provided that the forest and fruit plants cannot grow and cultivate together, if the forest and fruit trees cultivate together then the fruit trees will merely grow but will not produce any fruit, so these trees together will not grow and will not contribute to the public, thus the purpose of the entire scheme will fail. The petitioner has personal knowledge and experience relating to the tree plantation as being a son of a farmer and for his personal interest on plant and plantation. He has published a book naming “Daridromukto Desh Gorbar Ongikar- (Sohojtomo Daridro Bimochon Kousholpotro)” as translate in English, “Promise to create a poverty free Country–Easiest Technique to Overcome Poverty” wherein he categorically identifies the causes of poverty in Bangladesh and assign reasons as to why the tree plantation  scheme  of  the  Government  has  failed  and  under  what conditions and/or techniques should be applied for a successful forestation and how to make a poverty free Bangladesh. It is further stated that in the year of 1977, the petitioner has submitted his book and explained his technique to the then Honourable President of Bangladesh who showed his interest and assured the petitioner that his plan will be implemented for forestation. Nevertheless, the petitioner did not stop there, but he with the help of his friends of Khulna District Bar Association, the then Deputy Commissioner and Divisional Commissioner who help him to organize several seminars on his techniques and plan relating to forestation. It is further stated that they also sent an application in the year of 1983 to the Honourable President to implement the petitioners’ plans, in response President’s office vide letter under Memo No. 20 (2) (GOP) 84-651/1,

informed the Khulna Lawyer Association that an order has been passed to the Planning Office to execute the plan of the petitioner. Thereafter, the Ministry of Environment and Forest has contact with the petitioner on several occasion. Next, the Ministry of Environment and Forest sent a letter  vide  Memo  No.-  POBAMA/SHA  BON-2/FORESTATION- 34/03(PART-1)/383  dated  11/08/2008  to  the  Chief  Forest  Protector requesting him to give his opinion relating to the book of the petitioner and a copy of the same was intimated to the petitioner (Annexure:-A to the writ petition). Thereafter, the Ministry of Environment and Forest sent another  letter  vide  Memo  No.-PABAMA/SHA  BON-2/ PARTFORESTATION-34/03(Part-1)/29 dated 14/01/2009 along with the book of the petitioner to the Chairman of Bangladesh Forest Industry Development Corporation, the Chief Forest Protector, Forest Director, and the Director, Bangladesh Forest Institution and directed them to take necessary  steps  as  per  relevant  portion  of  the  petitioner’s  book (Annexure:-A-1  to  the  writ  petition).  Similarly,  the  Ministry  of Environment  and  Forest  sent  another  letter  vide  Memo  No.- PABAMA/SHA  BA-2/PART  FORESTATION-34/03(PART-1)28  dated 15/01/2009 to the Director General (D.G.) of Directorate of Agricultural Extension, Khamarbari, Dhaka, directed him to take necessary steps for plantation  of  Date  and  Palm  trees  as  per  recommendation  of  the petitioner’s book (Annexure:-A-2 to the writ petition).

It  is  also  stated  that  the  “Social  Forestation”  under  “Daridro Bimochon  Kormoshuchi” has been failed  due to government’s  wrong choice of trees and wrong plans. This is evidently clear that the trees which have been successfully planted in any foreign countries need not to have the same effect on our country. The weather, soil texture and water are needed to be same as of the trees inhabitant country. This country’s weather, soil texture and water are useful and good for the plantation of date and palm and other trees and it will have a very significant effect on environment. These trees will grow naturally and will produce a lot of fruits. Nutrition is a part of right to life under Article 31 of Constitution of Bangladesh. In Dr. Mohiuddin Farooque v. Bangladesh, 48 DLR 438, it was held that “protection of health” is guaranteed as fundamental right under Article-31 of our Constitution. So, failure to use the Khas lands for forestation and to produce nutrition for the citizens is a failure to provide the protection of health under Article-31 of our Constitution.

Being aggrieved by and dissatisfied with the respondents for not taking any effective measure to implement necessary steps which is very essential  for  the  citizen  nutrition  and  health  and  having  no  other alternative, efficacious remedy, the petitioner filed this writ petition and obtained the instant Rule.

Mr. Manzill Murshid, learned Advocate appearing on behalf of the petitioners and submits that Palm and Date trees provide nutrition which is necessary for healthy life. Right to life includes healthy life. Right to life is also one of the fundamental rights as per our Constitution. He also submits that the palm tree plays an important role in making balance of environment. The palm tree absorbs carbon dioxide significantly which greater than other  trees.  Palm  tree  also  plays  role in  reducing  global warming caused by carbon dioxide emission. He further submits that palm trees also absorb lighting strikes and thereby reducing death caused by lighting. Right to life includes normal period of life. Right to life excludes unnatural death or accidental death, like death caused by lighting, thunder storms,  etc.  and  unnatural  death  is  against  normal  period  of  life.  He further  submits  that  the  Palm  tree  plays  an  important  role  to  protect landslides, natural disaster, like-cyclone, tidal wave etc. Palm trees also play role in reducing soil salinity. He also submitted that date trees and palm trees provide fruit, juice and timber. Therefore, palm trees and date trees play important role in generating economic growth and reducing the poverty  of  people.  He  next  submitted  that  under  the  facts  and circumstances stated above, he prays for directions upon the respondents to take the following steps for forestation /plantation of Date and Palm trees  (paragraph  No.  07  (seven)  of  Supplementary  Affidavit  dated 01.06.2022 filed by the Petitioner No.2), which reads as follows:-

  1.    to utilize the unused governmental land for Date trees and Palm trees plantation.
  2. to plant date trees and palm trees alongside railway, highway and embankment. 
  3.             to plant date and palm trees in observing various National days and international days.
  4.              to  take  appropriate  steps  to  develop  preservation  and marketing system for Date, Palm juice and timber and to export date palm juice and timber after meeting of local demand.
  5. to preserve seeds of palm and date and provide the seeds to people/organization/institution for plantation/ forestation of palm and date trees in time.
  1.      to  raise  awareness  of  date  and  palm  trees  forestation /plantation  through  networking,  training,  workshop, participations and news.
  2.   to provide fund to the concern authority for implementation and expansion of date and palm trees forestation/plantation.

viii) to take a project in a large scale for date and palm tree

plantation  across  the  country  and  form  committees  at National, District, Upazilla and Union level to implement and monitor date and palm tree plantation project.

ix) to create scope for involvement of rural people to alleviate

poverty where in women, farmer and young people should be given priority in date and palm trees plantation project across the country.

By  filing  a  supplementary  affidavit  learned  Advocate  for  the petitioner No.2 again referred online report which was published in the daily “Bangladesh Post” on 22.06.2022, updated on 23.06.2022 with a caption that, “Deaths from lighting increase”. In their report it was stated that, Bangladesh is one of the countries in the world considered to have reported one of the highest number of deaths due to lightning strikes. He next submits that in  the aforesaid report, it is  also stated  that  Curtin University in Australia has conducted a research on this natural disaster in Bangladesh. According to their research, at least 1878 people died in Bangladesh due to lightning from 2013 to 2020. Out of them, 72 percent were farmers and according to the Ministry of Disaster Management and Relief and the Non-Governmental Organization Disaster Forum, 3,162 people had died in lightning strikes from 2011 to 2021. As per the said news report as of June 17 of this year, at least 48 people had died for the same reasons. Most of the victims were farmers who were struck by

lightning while working or going to work in the crop fields. These news reports shows that in 2021, at least 362 people died in 2020 and more than 250 people died in 2019, the number was around two hundred. Some 250 people were killed in lightning strikes in 2016 and the government identified the thunderstorm as a natural disaster for the first time after so many people were killed on that year. In the said news report Dr. Khondoker Mokaddam Hossain, Professor (Institute of Disaster Management and Vulnerability Studies) of Dhaka University told in the Bangladesh Post,” Lighting is a normal occurrence. It has happened before, but in recent times its trend has increased. Bangladesh has the highest number of lightning strikes in South Asia. On an average, about 300 to 400 people died in lightning strikes every year.” He also submits that an online report was also published in the daily “Shomyeralo” on 24.06.2021, updated on 24.06.2021 with a captioning that “na­L¡¢V V¡L¡l a¡mN¡R ®L¡b¡u”: Another online report was published in “NewsBangla24.com” on 10.06.2021, captioning is that, “a¡mN¡Rx L¡N­S B­R ps­L ®eC”: These reports shows that the ‘KABITA’ Scheme of the Respondents had already failed. However, so many palm saplings were said to be planted, but none of them actually existed. These trees have lost their existence due to negligence /lack of care. The report also reveals that Palm trees planted in different districts namely-Gaibandha, Nilphamari, Thakurgaon and Lalmonirhat were, mostly lost their existence due to lack

of care and he prays for making the Rule absolute and seeking direction upon the respondents as per paragraph:- 07 of Supplementary Affidavit filed by the petitioner No. 2 dated 01.06.2022. 

Mr. Ashique Rubaiat, learned Assistant Attorney General appearing on behalf of the respondent No.3 opposing the Rule by filing an affidavit- in-opposition and an affidavit-in-compliance, submits that as per relevant official documents its shows that the logistic steps taken by respondent to complete the project of plantation of Palm trees across the countries. According to the direction of this Court the respondent No.3 submit a report relating to the plantation project which has been done in fiscal yearly basis, i.e. 2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018- 2019, 2019-2020, 2020-2021 and 2021-2022. He further submits that the Government has so far planted more than 4(Four) million Palm trees on both sides of the rural roads. Those trees were grown up on the roadsides and surrounding of the ponds and canals for enhancing the production of molasses  with a view  to reduce pressure on imported sugar. He  also submits that the main thrusts of the plantation programs were to reduce the rate of casualty caused by a thunderbolt, increase forest resources, enhance awareness of farmers about the plantation, improve condition of the soil and create employment opportunities in the area. Roadside palm tree  plantations  activities  are  progressing  successfully  which  will ultimately  help  to  reduce  carbon  emission  at  a  substantial  level.  The government is also encouraging to plant Date trees in many Districts of Bangladesh including Gazipur, Manikganj etc. He also submits that the social  forestry  is  a  key  activity  of  the  Forest  Department  for  socio- economic development and poverty alleviation of rural communities in Bangladesh and it plays important role in climate change mitigation and biodiversity  conservation  and  as  such,  the  Forest  Department  started involving people with this activity since early 1960s through the forest

extension  programs.  During  early  1980s,  local  people  from  7(seven) Districts  of  northern  Bangladesh  were  involved  for  the  plantation  in marginal government land. In 2004 (as amended in 2011) the government approved the social forestry rule to give legal basis for benefit sharing among the local people (participants) through implementing this activity. Under the social forestry program, plantation was raised for an area about 99,313.78  hectare  and  strip  plantation  was  raised  for  an  area  about 73,223.36 kilometer and about 2955 hectares of long term, short term, non-  mangrove  plantation  and  2664  KM  of  strip  plantation  was established  with  the  Climate  Change  Trust  Fund.  About  7,01,488 participants were  involved  with the social  forestry of which  1,34,542 participants were female. About 10,15,40,000 (ten crore fifteen lakh forty thousand) sapling were sold at a minimum price from forest nursery and distributed between 2002 to 2015- 16 in order to increase the number of tree all over the country. Under the social forestry in Bangladesh trees were cut from 43,943 hectare area and strip plantation from 18,362 KM till  2018-19 and  about 1,217, 82,18,910/-  (one thousand two hundred seventy crore eighty two lakh eighteen thousand nine hundred ten taka) were earned by selling wood, fuel wood and poles and the department distributed 3,83,23,5045/- (three hundred eighty three crore twenty three lakh five thousand forty five taka) amongst 1,91,854 (one lakh ninety one thousand  eight  hundred  fifty  four)  participants.  In  addition  about 1,10,20,17,385/-( one hundred ten crore twenty lakh seventeen thousand three hundred eighty five taka) has been deposited as Tree Framing Farm (TFF) to plant trees in the cutting areas. So far the department deposited 4,33,85,45,532/- (four hundred thirty three crore fifty eight lakh forty five thousand  two  hundred  thirty  two  taka)  as  revenue.  In  addition, 2,18,49,73,214/-  (two  hundred  eighteen  crore  forty  nine  lakh  seventy

three  thousand  two  hundred  fourteen  taka)  was  distributed  to  the landowners, the union council and others. It appears from the letter dated 17.11.2021  issued  by  Assistant  Chief  Conservator  of  Forests,  Social Forestry wing that from 1980-81 to 2020-2021 at total of woodlot trees

have been planted in the area of 1,2,339.29 (one lakh two thousand three hundred thirty nine point twenty nine) hectors and strip forest have been planted in 76,652.76 (seventy six thousand six hundred fifty two point seventy six) km areas of Bangladesh. Total beneficiaries of the program is 7,26,654 (seven lakh twenty six thousand six hundred fifty four) out of 1,40,865 (one lakh forty thousand eight hundred sixty five) are female and

due to such program hundred crores of taka has been distributed among

the beneficiaries and more than 500 crore taka has been deposited to the treasury of government. He lastly submits that various media published

news and documentary focusing the tremendous success of the steps taken

by the Department such as p¡j¡¢S he¡u­e qa c¢lâl¡ J q­µQ m¡Mf¢a published in Jagonews24.com dated 06.12.2017, f¢l­hn lr¡k ®e¡u¡M¡m£ EfL¨­m p¡j¡¢SL he¡ue published in Boishakhi TV online dated 16.02.2022, সামািজকhe¡u

াি ক জনেগা ী published in the Daily Bangladesh dated 12.02.2020,  ানীu দর

 িকত  কের  ৫০  একর  published  in  the  daily  Amader  Shomoy  dated 30.01.2022  with  regard  to  the  socio-economic  and  ecological development of poor rural people due to the social forestation of the Forest Department. The Forest Department is now concentrating to plant Arjun, Bokai Neem, Mehagoni, Raintree and other local verities of trees covering herbal trees, forest trees and fruit trees under the program instead

of planting foreign trees like eucalyptus considering the adverse affect on ecology and environment and as such, he prays for discharging the rule.

We have heard the learned Advocates for both sides, perused the writ  petition,  affidavit-in-opposition,  affidavit-in-compliance  and  other materials on record annexed herewith.

It  transpires  from  the  report  of  the  respondent  No.3  that   the government has so far planted more than 4 millions palm trees on both sides of the rural roads and other areas and these trees were grown on the roadsides and surrounding of ponds and canals and as such, it can be understood  that  the  social  forestation  program  became  successful  in reducing the  rate of  casualty  caused by  thunderbolt,  increasing  forest resources,  enhancing  awareness  of  farmers  about  the  plantation, improving  organic  matter,  status  of  soil,  creating  employment opportunities,  reducing  pressure  on  imported  sugar,  reducing  carbon emission etc. On the other hand, it appears from the online report which was  published  in  the  daily  “Shomyeralo”  on  24.06.2021,  updated  on 24.06.2021 with a captioning that “na­L¡¢V V¡L¡l a¡mN¡R ®L¡b¡u”: The report shows  that  Dr.  Md.  Enamur  Rahman,  State  Minister  for  Ministry  of Disaster Management and Relief admits that approximately 45 lakhs Palm saplings and Seeds were planted across the country in 2017 to prevent lightning/thunderbolt and almost all of them were eaten by cows and goats. Another online report was published in “NewsBangla24.com” on 10.06.2021, captioning is that, “a¡mN¡Rx L¡N­S B­R ps­L ®eC”: That report shows that under KABITA Scheme, 1,04,767 palm saplings have been planted in six upazilas out of eight upazilas of Rangpur District in the fiscal year 2019-20. However, so many palm saplings were said to be planted, none of them actually existed. The report also reveals that Palm trees  planted  in  different  districts  namely-Gaibandha,  Nilphamari, Thakurgaon and Lalmonirhat were, mostly lost their existence due to lack of care. These trees have lost their existence due to negligence /lack of care of the respondent. Thus, we are of the view that the respondents have failed to implement the project, namely Kabita Scheme, due to lack of care and negligence of the respondents.

We also noticed that Bangladesh is one of the countries in the world considered to have reported one of the highest numbers of deaths due  to  lightning strikes.  Curtin  University,  Australia  has  conducted  a research  on  this  natural  disaster  in  Bangladesh.  According  to  their research, at least 1878 people died in Bangladesh due to lightning from 2013 to 2020. Out of them, 72% (percent) were farmers and according to the  Ministry  of  Disaster  Management  and  Relief  and  the  Non- Governmental Organization Disaster Forum, 3,162 people had died in lightning strikes from 2011 to 2021. Most of the victims were farmers who were struck by lightning while working or going to work in the crop fields. The government identified the thunderstorm as a natural disaster as so many people were killed by lightning. Bangladesh has the highest number of lightning strikes in South Asia. On an average, about 300 to 400  people  died  in  lightning  strikes  every  year.  Admittedly,  the forestation /plantation of the date and palm trees across the country will save life of the people from lightning strikes.

A pollution free environment is inevitable requirement for healthy life, which ought to be secured as “right to life”. Plants, which are suitable for the soil texture,  ecology  and  environment,  are best to protect the environment and people of the country. Hence, the Palm and Date trees naturally grow in Bangladesh. So, these can be planted for protecting the life and environment of Bangladesh.

Considering these aspect of the matter, we are of the view that justice will be met if we direct the respondents to carry out the social forestation/plantation project in a way to make it useful for the public at large, ecological and environmental development of Bangladesh.

Accordingly,  the  Rule  is  disposed  of  with  direction.  The respondents are directed to carry out the social forestation project in a way to  make  it useful  for  the public at  large,  ecological and environment development of Bangladesh and to implement the plantation of forest as proposed  in  the  letter  dated  15.01.2009  (Annexure-A-2  to  the  writ petition) to raise the nutrition level and standard of health of the citizen of Bangladesh.  The  respondents  are  also  directed  to  consider  the recommendation made by the Petitioner No.2 in paragraph No. 07 (seven) of Supplementary Affidavit dated 01.06.2022, so far it’s relate to the plantation /forestation of Date and Palm trees all over Bangladesh, within 06(six) months from the date of receipt of this order, in accordance with

law, without fail.

However, there will be no order as to costs. Communicate at once.

Mohammad Ali. J:

I agree.