IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

PRESENT:

Mr. Justice Hasan Foez Siddique,C.J.

Mr. Justice Obaidul Hassan

Mr. Justice M. Enayetur Rahim

CIVIL PETITION FOR LEAVE TO APPEAL NO.860 OF 2022

(Arising out of Writ Petition No.7545 of 2015)

(From the judgment and order dated 05th day of April, 2018 passed by the High Court Division in Writ Petition No.7545 of 2015)

Government  of  Bangladesh  :     .  .   .   Petitioners represented  by  the  Senior

Secretary, Ministry of Land and

others

-Versus-

Md. Selim Khan and others : . . . Respondents

For the Petitioners : Mr. Kazi Mynul Hassan, Deputy

Attorney  General  instructed  by  Mr. Haridas Paul, Advocate-on-Record

For the Respondent No.1  :  Mr. Ajmalul Hossain, Senior Advocate

with Ms. Tania Amir, Senior Advocate and Mr. Moniruzzaman Asad, Advocate instructed  by  Ms.  Madhumalti Chowdhury  Basree,  Advocate-on- Record

For the Respondent Nos.2-3  :  Not represented

Date of Hearing and Judgment   :  The 29th day of May, 2022

JUDGMENT

M. Enayetur Rahim, J: Delay of 1440 days in filling the civil petition for leave to appeal is hereby condoned.

This leave petition, at the instance of writ-respondents

are directed against the judgment and order dated 05.04.2018 passed by a Division Bench of the High Court Division in writ petition No.7545 of 2015 disposing the Rule with a direction to  co-operate  substantively  with  the  writ  petitioner- respondent for dredging/extracting of 86.30 lac cubic meter

(i.e. 30 crore and 48.10 lac cubic feet) sand/earth from the dubochar of Meghna River bed situated under charsholadi Mouza, Paschim Charkrishnapur Mouza, Charjahiruddin Mouza, Nilkomol Mouza, Monipur/ Kutubpur Mouza, Bajapti Mouza, Gazipur Mouza, Charbhoirabi Mouza and Miarchar Charfakhordia Mouza under Haimchar Upozilla, Chandpur and Razrajeswar Mouza, Nilarchar Mouza, Ibrahimpur Mouza, Zafrabad Mouza, Safarmali Mouza, Shakhua Mouza, Ichuli Mouza, Chaltatli Mouza, Gunanandi Mouza, Gorapia Mouza and Induli Mouza under Chandur Sadar Upozilla, Chandpur (as per annexure-L)  (hereinafter referred to as Mouzas in question) by country made dredger.

The relevant facts for disposal of the leave petition are as follows:

The present respondent No.1 as writ petitioner filed writ petition No.7545 of 2015 before the High Court Division and a Rule was issued on the following terms:

“Let a rule Nisi was issued calling upon the respondents to show cause

as to why they should not be directed to do a hydrographic survey chart from the Meghna river bed situated at Charsholadi Mouza, Paschim Charkrishnapur Mouza, Charjahiruddin Mouza, Nilkomol Mouza, Monipur/Kutubpur Mouza, Bajapti Mouza, Gazipur Mouza, Charbhoirabi Mouza and Miarchar Charfakhordia Mouza under Haimechar Upozilla, Chandpur and Razrajeswar Mouza, Nilarchar Mouza, Ibrahimpur Moua, Zafrabad Mouza, Safarmali Mouza, Shakhua Mouza, Ichuli Mouza, Chaltati Mouza, Gunanandi Mouza, Gorapia Mouza and Induli Mouza, under Chandpur Sadar Upozilla, Chandpur at the cost of the petitioner and to submit a hydrographic survey chart and report to the Respondent No.2 and 4 and also to the petitioner whether sand/earth (Balu) is in existence therein and to allow the petitioner for extraction of sand/earth from the above mentioned area if any sand/earth is found after hydrographic survey chart for public interest at the own cost of the petitioner by country made dredger for the proper navigability of the river and/or pass such other or further order or orders as to this Court may seem fit and proper.”

In the writ petition it is contended that the writ- petitioner is the sitting Chairman of No.10 Lokkhipur Model Union Parishad under Chandpur Sadar Upazilla, District- Chandpur and also a conscious citizen of Chandpur district. Siltation at the river bed creates problem to the navigability to the river and also becomes a major source of flood. Bangladesh Inland Water Transport Authority (BIWTA) as well as the Ministry of Land allow dredging in the river bed, the Government every year investing a huge amount of money in the river for dredging of river in order to keep up the proper navigability, but there are some char/pastureland under water in the river bed Meghna situated at the Mouzas in question and unless these area are dredged it is not possible to protect the river bank from river erosion.

By informing the real scenario of the said dubochar area on 15.06.2015, the petitioner filed two separate applications to the Hon’ble Minister, Ministry of Shipping and Senior Secretary, Ministry of land and requested to allow him to extract sand/earth from the aforesaid area at the cost of the petitioner for the proper navigability of the river. On 16.06.2015 and 17.06.2015 respectively, the Hon’ble Member of Parliament requested the Hon’ble Minister, Ministry of Shipping, the Chairman, BIWTA and the Senior Secretary, Ministry of Land to allow the petitioner to extract sand/earth from the said Mouzas at his own cost by country made dredger for the wellbeing of public of that area for the proper navigability of the river. But the authority concerned did not allow the petitioner to extract sand/earth form the said Mouzas.

Hence, the writ petitioner compelled to file the writ petition.

During pendency of the writ petition, the writ- petitioner-respondent filed an application before the High Court Division seeking direction to allow him to deposit money to the concerned authority for a hydrographic survey report within 30 days upon the aforesaid mouzas and accordingly the High Court Division allowed his prayer on 15.12.2015. However, said order was not interfered by this Division in civil petition for leave to Appeal No.875 of 2016. Pursuant to the order of High Court Division the writ petitioner-respondent on 11.12.2017 through a pay order deposited amounting to Tk.28,30,568.22 (Taka twenty-eight lac thirty thousand five hundred sixty eight and poisa twenty two) only in favour of the BIWTA for doing a hydrographic survey upon the said mouzas in question. Upon receiving the money BIWTA held hydrographic survey upon the said mouzas. Secretary, BIWTA vide a letter dated 31.01.2018 informed the Deputy Commissioner, Chandpur that within the said mouzas the survey authority found 45.08 lac cubic meter sand under survey chart No. CD 647/2018A and 41.22 lac cubic meters sand under survey chart No.CD647/2018B totaling 86.30 lac cubic meters.

The High Court Division having considered the said survey report, coupled with the fact that on behalf of the writ- respondents no affidavit-in-opposition has been filed  and accordingly disposed of the Rule on the following manner:

“The respondents are directed to co-operate substantively with the petitioner allowing him for dredging/extracting of 86.30 lac cubic meter (i.e 30 crore and 48.10 lac cubic feet) sand/earth from the dubochar of Meghna river bed situated under

Charsholadi Mouza, Paschim Charkrishnapur Mouza, Charjahiruddin Mouza, Nilkomol Mouza, Monipur/Kutubpur Mouza, Bajapti Mouza, Nilkomol Mouza, Monipur/Kutubpur Mouza, Bajapti Mouza, Gazipur Mouza, Charbhoirabi Mouza and Miarchar Charfakhordia Mouza under Haimchar Upozila, Chandpur and Razarajeswar Mouza, Nilarchar Mouza, Ibrahimpur Mouza, Zafrabad Mouza, Safarmali Mouza, Shakhua Mouza, Ichuli Mouza, Chaltatli Mouza, Gunandi Mouza, Gorapia Mouza and Induli Mouza, under Chandpur Sadar Upozilla, Chandpur (as per annexure L) by country made dredger.”

Feeling aggrieved by  and dissatisfied with  the said

judgment the writ-respondents have filed this leave petition.

Mr. Kazi Mynul Hassan, learned Deputy Attorney General, appearing for the leave petitioners submits that-

i)                        the High Court Division failed to appreciate that the Hydrographic Survey report pursuant to section 9(1) (Kha) of the Balumahal and Mati Babosthapona Ain, 2010 is not a sole basis for sand extraction from any river. The Hydrographic Survey report ought to be send to the Deputy Commissioner and to be considered in  the light of parameters/assessment stipulated under section 9(2) and (3) and there being no as such assessment under section 9(2) and (3) of the Balumahal and Mati Babosthapona Ain, 2010 by the office of the Deputy Commissioner, Chandpur in any manner and in the absence of declaration by the Divisional Commissioner as Balumahal for the Mouzas referred in the writ petition, direction passed by the High Court Division allowing sand extraction by the writ-petitioner-respondent No.1, has got no legal basis;

ii)                        the High Court Division failed to appreciate that there is a specific provision for lease in open tender in case of ‘Balumahal’ pursuant to Sections 10,11,12,13 and 14 of the Balumahal and Mati Babosthapona Ain, 2010 along with applicable Rules under Balumahal and Mati Babosthapona Rules, 2011. In the instant case there being no such lease, direction upon the writ respondents-petitioners to co-operate substantively allowing the writ- petitioner-respondent No.1 to dredging/extracting of

86.30      lac cubic meter (i.e. 30 crore nad 48.10 lac cubic feet) sand/earth from the dubochar of Meghna river bed situated at the Mouzas in question is absolutely without any lawful basis, therefore direction passed by the High Court Division is liable to be interfered;

iii)                   the Bangladesh Fish Research Institute, Nandi Kendra, chandpur; Bangladesh Water Development Board (BWDB) and BIWTA by their respective officials expressed grave concern against the nature and

manner of sand extraction by the writ-petitioner- respondent;

iv)                        the way  writ-petitioner-respondent extracted sand causing continuing prejudice to eco-diversity, fish production, livelihood of local people by river erosion and same is done by violation of the Act, 2010 and Rules, 2011 as such direction passed by the High Court Division is liable to be set aside.

Per contra, Mr. Ajmalul Hossain, learned senior Advocate appearing with Ms. Tania Amir, learned Senior Advocate, supports the impugned judgment making the following submissions:

i)              the writ petitioner being the public representative of the local area for the interest of proper navigability of the river Meghna has taken various steps, in particular to remove the sand/earth from the area in question;

ii)         the petitioner as per the order of the High Court Division, which was not interfered by the Appellate Division, deposited the cost for hydrographic survey of the mouzas in question and accordingly, survey had been done and the High Court Division having satisfied rightly given direction to the writ- respondents to allow the writ petitioner for dredging/extracting of 86.30 lac cubic meter (i.e. 30 crore and 48.10 lac cubic feet) sand/earth from the dubochar of Meghna River bed situated under the mouzas in question.

iii)    the High Court Division in passing the impugned judgment giving direction to the writ-respondents did not exceed it jurisdiction.

We have considered the rival submissions of the learned

Advocates for the respective parties, perused the impugned

judgment and other materials as placed before us as well as

the provisions of relevant law and Rules i.e. h¡m¤jq¡m I j¡¢V hÉhØq¡fe¡

BCe, 2010 (hereinafter referred to as Ain,2010) and h¡m¤jq¡m J j¡¢V hÉhØq¡fe¡

¢h¢dj¡m¡ 2011 (hereinafter referred to as Bidhimala,2011)z

Section-2(7) of the h¡m¤jq¡m J j¡¢V hÉhØq¡fe¡ BCe 2010 has defined "h¡m¤jq¡m'

as under:

""(7) h¡m¤jq¡m AbÑ f¢l­hn Ar¥æ l¡¢Mu¡ BqlZ­k¡NÉ h¡ E­š¡me­k¡NÉ h¡m¤ h¡ j¡¢V pwl¢ra

l¢qu¡ R HCl²f ®L¡e E¾j¤š² Øq¡e, Q¡ h¡N¡­el Rs¡ h¡ ec£l am­cn k¡q¡ HC BC el Ad£e

®Sm¡ fËn¡pL La«ÑL h¡m¤jq¡m ¢qp¡ h ®O¡¢oaz'' (underlines supplied)

Section 9 of the said Ain speaks about the procedure for

declaration and abolishment of a  Balumahal which is as

follows:

Ò9| evjygnvj †NvlYv I wejyßKiY|-1) evjygnvj wPwýZ I †NvlYvKi‡Yi †ÿ‡Î, Dc-aviv (2) Gi weavb mv‡c‡ÿ, †Rjv cÖkvmK‡K wb¤œewY©Z c×wZ AbymiY Kwi‡Z nB‡e-

(K) mswkøó GjvKvi ivR¯^ Awdmvi KZ…©K cwi`k©b KivBqv †Uªmg¨vc I Zdwmjmn ¯^qsm¤ú~Y© cÖwZ‡e`b MÖnY Kwi‡eb;

(L)  †bŠ-e›`i mxgvi evwn‡i wba©vwiZ †bŠ c‡_ †hLv‡b evjy ev gvwU Av‡Q †mB mKj ¯’v‡b evsjv‡`k Af¨šÍixb †bŠ-cwienb KZ…©cÿ (weAvBWweøDwUG) Gi gva¨‡g nvB‡WªvMvwdK Rwic KivBqv ¯^qsm¤ú~b© cÖwZ‡e`b MÖnY Kwi‡eb;

(M) `dv (K) I (L) Gi Aaxb M„nxZ cÖwZ‡e`‡bi Av‡jv‡K wefvMxq Kwgkbv‡ii wbKU

GZ`&&msµvšÍ cÖ¯Íve †cÖiY Kwi‡eb|

(2) Dc-aviv (1) Gi `dv (M) Gi Aaxb cÖ¯Íve †cÖi‡Yi c~‡e© †Rjv cÖkvmK cwi‡ek, cvnvo

aŸm, f~wg aŸm A_ev b`x ev Lv‡ji cvwbi †mªv‡Zi MwZc_ cwieZ©b, miKvwi ¯’vcbvi (h_vt

weªR, KvjfvU©, iv¯ÍvNvU, †dwiNvU, nvUevRvi, Pv-evMvb, b xi evua, BZ¨vw ) Ges AvevwmK

GjvKvi †Kv‡bv ÿwZ nB‡e wKbv †mB wel‡q mswkøó KZ©„c‡ÿi gZvgZ MÖnY Kwi‡eb|

(3) †Kvb evjygnv‡j D‡Ëvjb‡hvM¨ evjy ev gvwU bv _vwK‡j, ev evjy ev gvwU D‡Ëvjb Kwievi

d‡j cwi‡ek I cÖwZ‡ek webó ev miKvwi ev †emiKvwi ¸iæZ¡c~Y© ¯’vcbv ÿwZMÖ¯’ ev Rb¯^v_© wewNœZ nBevi AvksKv _vwK‡j, †Rjv cÖkvmK, wefvMxq Kwgkbv‡ii wbKU D³ evjygnv‡j wejyß †NvlYv Kwievi cÖ¯Íve †cÖiY Kwi‡Z cvwi‡eb|Ó

From the above, it is crystal clear that the Deputy

Commissioner of the concerned district has empowered to

declare a certain area as ÔBalumahalÕ subject to fulfillment of

certain conditions with the approval of concerned Divisional

Commissioner.

In the instant case, the alleged ‘Dubochars’ of Meghna

River bed under the mouzas in question  have  never been

declared as  ÔBalumahalÕ by the concerned Deputy Commissioner

complying the provisions of relevant law i.e. Ain 2010.

Now, the pertinent question is whether the High Court

Division in exercising power under Article 102 of the

Constitution can declare a particular area as  ÔBalumahalÕ

assuming the power of a Deputy Commissioner wherein there is a

specific law and Bidhimala to deal with the matter.

The answer is very simple-“No”.

The High Court Division cannot assume the power and

jurisdiction of a particular authority conferred by a specific

law/statute in exercising power under Article 102 of the

Constitution of the People’s Republic of Bangladesh and thus,

the High Court cannot declare a particular area as ÔBalumahalÕ

making a particular law i.e. Ain 2010 nugatory or redundant.

Thus, in this particular case the High Court Division has

traveled beyond its jurisdiction declaring the mouzas in

question as ÔBalumahalÕ.

From the impugned judgment it transpires that the High

Court Division without taking consideration of the provision

of section 9 of the Ain,2010 straight way treated the

Dubochars of Meghna River bed under mouzas in question as

ÔBalumahalÕ and directed the writ-respondents-petitioners to

allow the writ petitioner to extract sand from the said

mouzas.

Section 10 of the Ain of 2010 provisions about the

procedure for leasing a Ôh¡m¤jq¡mÕ runs as follows:

Ò10| evjygnvj BRviv cÖ vb, BZ¨vw |-(1) mKj evjygnvj, wewa Øviv wba©vwiZ c×wZ‡Z, Db¥y³

`ic‡Îi gva¨‡g BRviv cÖ`vb Kwi‡Z nB‡e|

2) GB AvB‡bi Aaxb BRviv cÖ`vb msµvšÍ mKj wel‡q †Rjv cÖkvmK‡K mnvqZv Kwievi Rb¨ cÖwZwU †Rjvq †Rjv evjygnvj e¨e¯’vcbv KwgwU bv‡g GKwU KwgwU _vwK‡e|

(3)  Dc-aviv (2) Gi Aaxb MwVZ †Rjv evjygnvj e¨e¯’vcbv KwgwUi MVb I Kvh©c×wZ wewa Øviv

wba©vwiZ nB‡e|

(4) Dc-aviv (1) Gi Aaxb Db¥y³ `ic‡Î †Rjv cÖkvm‡bi wbKU GB AvB‡bi Aaxb ZvwjKvfz³ †Kvb

e¨w³ ev cÖwZôvb e¨ZxZ Ab¨ †Kn AskMÖnY Kwi‡Z cvwi‡eb bv|

(5) Dc-aviv (4) Gi Aaxb ZvwjKvfzw³i kZ©vw` , †gqv` I c×wZ wewa Øviv wba©vwiZ nB‡e|

(6) †Kvb evjygnvj BRvivi cÖ¯Íve Aby‡gvw`Z nBevi ci, †Rjv cÖkvmK BRviv cÖ`Ë evjygnv‡ji

mywbw`ó eY©bvmn BRvivi kZ©mg~n mywbw`©ófv‡e D‡jøLc~e©K wewa Øviv wba©vwiZ c×wZ I di‡g, BRviv Pzw³ m¤úv`b Kwi‡eb|

(7)  BRviv g~‡j¨i m¤ú~b© A_© Av`v‡qi ci mswkøó BRvivMÖnxZv‡K evjygnv‡ji `Lj n¯ÍvšÍi Kwi‡Z

nB‡e|Ó [underline supplied]

From the above provision of law, it is clear that a

ÔBalumahalÕ shall be leased out through open tender, and after

acceptance of lease proposal, concerned Deputy Commissioner

would execute lease agreement in specific manner and procedure

and after receiving the lease money the possession of leased

ÔBalumahalÕ will be handed over to the lessor.

But the High Court Division making the Ain, 2010 nugatory most illegally and arbitrarily leased out the  mouzas in questions to the writ petitioner for extracting sand. The High Court Division, in fact, had played the role of the lessor, which it cannot do.

Further, in section 13 of the Ain,2010 the tenure of lease of a ÔBalumahalÕ has been mentioned which is as follows;

Ò13| evjygnvj BRvivi †gqv`|- evjygnvj BRviv cÖ`v‡bi †gqv` nB‡e cÖwZ evsjv m‡bi 1 ˆekvL nB‡Z 30 ‰PÎ ch©šÍ|Ó

But in the instant case the High Court Division has allowed the writ petitioner to extract sand for indefinite period without fixing any tenure and royalty. Thus, we are constrained to hold that the High Court Division disposed of the writ petition beyond the scope of Article 102 of the Constitution of the People’s Republic of Bangladesh.

Further, section 11 of the Ain, 2010 clearly contemplates that:

Ò‡Kvb evjygnvj BRviv cÖ`vb Kiv bv nBqv _vwK‡j, D³ evjygnvj nB‡Z GB AvB‡bi Aaxb BRviv cÖ vb e¨ZxZ Ab¨ †Kvb c×wZ‡Z evjy ev gvwU D‡Ëvjb, cwienY, wecYb I mieivn Kiv hvB‡e bv Ges GB g‡g© †Kvb ivR¯^I Av`vq Kiv hvB‡e bv|Ó

On examination of the above provision, it is clear that a ÔBalumahalÕ cannot be leased out otherwise, save and except

under the Ain, 2010.

It is now well settled that mandamus may not be issued where there is no violation of a legal right or statutory duty by the authority concerned and that a person can avail writ jurisdiction by way of mandamus only for enforcement of his legal right or for redress violation of such right. In this connection we may rely on the case of Hazerullah vs. Assistant Commissioner, Board of Management of Abandoned property, 55 DLR (AD) 15.

In the case of Telekhal progressive Fisherman vs. Co- operative Society ltd. vs. Bangladesh and others reported in 1 BLD (AD), 103 this Division has observed to the effect:

“It is well settled that in order to entitle a person to ask for the performance of any public duty by mandamus it is necessary to show that he has a legal right for claiming such performance apart from the fact that he is interested in the performance of such duty. In the case of Queen V. Guardians of the Lewisham Union, (1897) 1.Q.B. 498 it was

observed:

This court would be far exceeding its proper functions if it were to assume jurisdiction to enforce the performance by public bodies of all their statutory duties without requiring clear evidence that a person who sought its interference had a legal right to insist upon such performance.

It was held that an applicant should have a legal and specific right to enforce the performances of such duties. To quote Bruce J;-

It has always required that the applicant for a mandamus should have a legal specific right to enforce the performance of those duties.

In the instant case apart from the privileges of applying for the lease, the petitioner could not point out too any such specific legal right which inheres in him for which he claims the performance of the statutory duties conferred upon the public functionaries.

In the result, therefore, this petition is dismissed.”

In the instant case no legal right or statutory right has been created in favour of the writ petitioner to get lease of the ‘Balumahal’ in question and the concerned authority refrains to perform its legal or statutory duty. Mere deposition of the cost for hydrographic survey by the petitioner with the approval of court ipso facto does not create any legal or vested right in his favour. The writ petitioner did not come before the court to establish any public right but only to serve his selfish ends. A writ of mandamus cannot be indulged for such a purpose.

Further, Court cannot give any direction which is contrary to the relevant Act and Rules.

It is pertinent to mention here that the Port Rules, 1966 made under the Ports Act,1908 provides for removal of substance including sand from beds of navigable waterways and also excavation of any kind on the bed or foreshore of navigable waterways. The rule 53, 54 and 55 of the Port Rules, 1966 are as follows:

“53. Removal of substance from beds of navigable waterways- No person shall remove or cause to be removed gravel, sand, earth or substance from the beds of the navigable waterways of a port, without the prior written permission of the conservator and without the aid or under the supervision of such person, as the conservator may appoint to take part in or supervise the performance of such work.

54. Constructions and excavations affecting beds of navigable waterways-

(a) No person shall make any construction or excavation of any kind on the bed or foreshore of navigable waterways within a port without a licence from the Conservator. Any person, who wishes to obtain a licence under clause (a), shall apply in a prescribed form and shall pay an application fee of five rupees only.

55. Licence to construct or excavate-The Conservator may grant a periodical licence applied for under Rule 54 on such terms and conditions as may be specified in the licence and charge and collect a licence fee for such occupation in assessing such free and determining the period of such licence, the conservator shall take into consideration the importance and the nature of construction or excavation, the importance of the area, the volume of traffic, the landing and shipping charges for such traffic, the maintenance of the regime of the navigable waterways, and the effect of the construction or excavation therein. Any contravention of the terms and conditions as may be specified in the licence shall render the licence to cancellation without any notice and the licence shall be liable to any of the penalties as specified in the Act.

This Rule shall be deemed to apply to all existing encroachment constructions or excavation, if any, in or on the beds or foreshore of waterways within a port.”

However, in the present case the provision of Port Rules,

1966 will not be applicable. Because section 3 of the ‘evjygnvj I

gvwU e¨e¯’vcbv AvBb, 2010’ has over-overrode other laws and Rules. Section 3 of the said Ain is as follows:

Ò3| AvB‡bi cÖvavb¨|- Ports Act, 1908 (Act XV of 1908), Inland Water Transport Authority Ordinance,

1958 (E.P.Ord.No.LXXV of 1908), Lwb I LwbR m¤ú` (wbqš¿Y I Dbœqb) AvBb, 1992 (1992 m‡bi 39 bs AvBb) A_ev Ab¨ †Kvb AvBb ev Z`axb cÖYxZ wewa ev Ab¨ †Kvb Av‡`k, cÖÁvcb ev wb‡`©kbvq evj~gnvj e¨e¯’vcbv Ges GZ`&&msµvšÍ

Ab¨vb¨ wel‡q hvnv wKQzB _vKzK bv †Kb, GB AvB‡bi weavbvejx cÖvavb¨ cvB‡e|Ó (underlines supplied).

In view of the above, for the excavation of any kind of bed of navigable waterways or removal of sand(evjy) outside the port area, the provision of ‘evjygnvj I gvwU e¨e¯’vcbv AvBb, 2010’ will be applicable, even for the purpose of proper and smooth navigation. In this regard Bangladesh Inland Water Transport Authority (BIWTA) has got no authority to deal with the matter under the Port Rules,1966.  

Having, considered and discussed as above we have no hesitation to hold that the High Court Division has committed serious error in passing the impugned judgment and order.

Before parting it is necessary to note that since 2016 the writ petitioner-respondent had extracted sand (evjy) from the mouzas in question without paying any royalty to the Government in an arbitrary manner which has already incurred a heavy financial loss to the Government.

Thus, the concerned authority, in particular the Deputy Commissioner, Chandpur is directed to take necessary steps to realize the royalty for the alleged extraction of sand (evjy)

from the petitioner, from the date of the judgment of the High Court Division till the date of order of stay (04.04.2022) passed by this Division.

It also surprises us that on behalf of the Government no affidavit-in-opposition was filed before the High Court Division to contest the Rule and the conduct of the concerned law officers are highly suspicious. The concerned Government officials of Chandpur District administration slept over the matter for a long span of time. We express our dissatisfaction with the conduct of the concerned Government Officials of Chandpur District Administration who slept over the matter years together as well as the law officers who did not perform their duties properly before the High Court Division.

Accordingly, the leave petition is disposed of.

The judgment and order dated 05.04.2018 passed by the High Court Division in writ petition No.7545 of 2015 disposing the Rule with directions is hereby set aside.

C. J. J.

J.

B/O.Imam Sarwa Total Wards:3,880