IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

 (SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 14977 OF 2022 IN THE MATTER OF :

Three Angle Marine Ltd.

....Petitioner

- V E R S U S -

Bangladesh and others

.... Respondents

Mr. M. Ashraf Ali, with

Mr. S.S. Arefin Junnun, Advocates

.....For the petitioner Mr. Md. Sarwar Hossain Bappi, DAG 

…….For the respondent No. 1 Mr. N.M. Ahasanul Haque, Advocate

...For the respondent No. 6 Mr. Md. Kaiser Zahid Bhuiyan, Advocate

...For the respondent No. 7

             Present:

Mr. Justice Zafar Ahmed

   And

Mr. Justice Khandaker Diliruzzaman

Heard on: 01.11.2023 Judgment on: 29.11.2023

Zafar Ahmed, J.

In the instant writ petition, the petitioner has challenged the the Memo No. 04.00.0000.522.17.001.19.117 dated 25.07.2022 (Annexure-K) issued by the respondent No. 1 directing the

respondents Nos. 7 to 10 to take action against the petitioner and to cancel its Foreshore licence and Memo No. 05.30.5900.303.99.010.21.1003 dated 28.09.2022 (Annexure-K-1) issued by the respondent No. 10 directing the respondent No. 12 to take action against the petitioner if the petitioner fails to remove the structure and sand from the land adjacent to the river and Memo No. 05.30.5900.303.99.010.21.1006 dated 03.10.2022 (Annexure-K-2) issued by the respondent No. 10 directing the respondent No. 8 for taking action against the petitioner for violating the provisions of Bangladesh Environment Conservation Act, 1995 and Memo No. 05.30.5900.303.99.010.21.1009 dated 03.10.2022 (Annexure-K-3) issued by the respondent No. 10 directing the respondent No. 7 for cancelling the Foreshore licence issued by the respondent No. 7.

This Court, on 15.12.2022, issued a Rule Nisi and passed an interim order directing the parties to maintain status-quo.

Challenging the interim order, the respondent No. 7, namely Chairman, Bangladesh Inland Water Transport Authority (BIWTA) filed Civil Petition For Leave to Appeal No. 1445 of 2023. The Apex Court, vide order dated 23.07.2023 disposed of the civil petition directing this Bench to dispose of the Rule on merit. The Apex Court did not interfere with the interim order.

Respondent No. 6, namely Chairman, Jatiyo Nodi Rokkha Commission filed a power in the Rule. Respondent No. 7 (Chairman, BIWTA) filed an affidavit-in-opposition.

The petitioner, namely ‘Three Angle Marine Ltd.’ is involved in the business of ship building. It obtained the requisite permissions from the authorities concerned to carry out its business. Its dockyard situates at Nayanagar under Upazilla Gazaria, District-Munshiganj. The dockyard is constructed adjacent to the river Meghna.

On 28.07.2021, a news was published in a local Bengali newspaper ‘®cn l¦f¡¿¹l’ under the caption ‘®jOe¡-g¥mc£l h¤­L L¡lM¡e¡’. It was reported that the petitioner had illegally grabbed the river by filling sand.

The Cabinet Division considered the newspaper report and, vide Memo dated 02.08.2021 (Annexure-G1) directed the Deputy Commissioner (DC), Munshiganj to hold an inquiry into the matter and to submit a report. Accordingly, an inquiry was held in which the petitioner was heard. The DC, Munshiganj, vide Memo dated 20.10.2021 (Annexure-H) submitted the report (first report) stating, inter alia:

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•      

It appears that the Cabinet Division was not satisfied with the said report and, vide Memo dated 15.12.2021 (Annexure-I) directed the DC, Munshiganj to clarify some points including:

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”

Again, another inquiry was held in which the petitioner was heard. Thereafter, the DC, vide Memo dated 28.04.2022 (Annexure-J) submitted a report (second report) to the Cabinet Division stating inter alia:

“

Water Modelling

CEGIS  (Centre  for  Environmental  and  Geographic  Information Services) IWM (Institute of Water Modelling)

”

On  receipt  of  the second  report,  the  Cabinet  Division,  vide Memo dated 25.07.2022 (Annexure-K) directed respondent Nos. 2-5 and 10 to take the following steps:

“

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” 

The  DC,  Munshiganj  thereafter,  vide  separate  Memo  dated 28.09.2022 (Annexure-K1), Memo dated 03.10.2022 (Annexure-K2) and  Memo  dated  03.10.2022  (Annexure-K3)  communicated  the decision of the Cabinet Division to the Upazilla Nirbahi Officer and President  of  Zilla  Nodi  Rokkha  Committee,  Gozaria,  Munshiganj, Director,  Dhaka  Area,  Directorate  of  Environment,  Chairman, BIWTA respectively to take necessary steps as specified therein. The legality of Annexure-K to K3 has been challenged in the instant writ petition.

The learned Advocate Mr. Md. Kaiser Zahid Bhuiyan appearing for the respondent BIWTA submits that the impugned memos i.e. Annexure-K to K3 are merely inter ministerial communication and as such, the instant writ petition is not maintainable.

It appears that the Memo issued by the Cabinet Division (Annexure-K) and Memos issued by the DC, Munshiganj (Annexure- K1 to K3) were not communicated to the petitioner and as such, prima facie those are inter ministerial communication in nature. On this issue, Mr. M. Ashraf Ali appearing with Mr. S.S. Arefin Junnun for the petitioner submits that although Annexure-K to K3 are inter ministerial communication in nature, however, but they do not relate to a mere policy matter rather they have the implication of touching upon the right, title and interest of the petitioner company adversely and as such, the concerned authorities should have communicated those memos to the petitioner to satisfy the minimum requirement of the principle of natural justice. The learned Advocate submits that in the attending facts and circumstance of the case, Annexure-K to K3 cannot be termed as a mere inter ministerial communication and hence, the writ petition is maintainable. We find force in the submission. 

It appears that the allegation in respect of the river encroachment and river grabbing by the petitioner was not proved in the first and second inquiry reports. Being aware of those reports, the Cabinet Division, vide Annexure-K instructed the concerned

government departments and authorities to take steps and actions against the petitioner based on the allegation regarding river encroachment and river grabbing which was published in the newspaper. Those instructions issued by the Cabinet Division were reflected in the memos (Annexure-K1 to K3) issued by the DC, Munshiganj who had no option but to follow those. Annexure-K issued by the Cabinet Division is a reflection of non-application of mind.

At this juncture, Mr. Md. Kaiser Zahid Bhuiya, appearing for the respondent BIWTA, draws our attention to a memo dated 27.04.2022 (Annexure-X) issued by the respondent No. 6 (Jatiya Nadi Rokkha Commission) to the BIWTA. It appears from the said memo that respondent No. 6 conducted an independent inquiry into the matter and made some specific recommendations. It further appears that the inquiry held by respondent No. 6 is independent and unconnected with the earlier inquires conducted by the DC, Munshiganj and the memo (Annexure-K) issued by the Cabinet Division has no nexus, whatsoever, with the inquiry held by the respondent No. 6.

In view of the facts and circumstances discussed above, we have no hesitation to hold that the impugned memo dated 25.07.2022 (Annexure-K) issued by the Cabinet Division directing the other government authorities to take steps and actions against the petitioner so far as they relate to river encroachment and river grabbing by the petitioner is an outcome of misreading of earlier two inquiry reports wherein the specific allegation was found not proved. Accordingly, Annexure-K1 to K3 issued by the DC, Munshiganj for implementation of the directions of the Cabinet Division cannot be sustained. Accordingly, we find merit in the Rule.

In the result, the Rule is made absolute.

However, this judgment and order shall have no bearing upon the outcome of the inquiry and recommendation made by the respondent No. 6 (Jatiya Nadi Rokkha Commission as contained in memo dated 27.04.2022 (Annexure-X) annexed to the affidavit-in- opposition).

Khandaker Diliruzzaman, J.

I agree.

Mazhar/BO