IN THE SUPREME COURT OF BANGLADESH

Appellate Division

PRESENT

Mr. Justice Hasan Foez Siddique, C. J.

Mr. Justice M. Enayetur Rahim Mr. Justice Jahangir Hossain

CIVIL PETITION FOR LEAVE TO APPEAL NO.762 AND 758 OF 2023.

(From the judgment and order dated the 16th day of February, 2023 passed by the High Court Division in Writ Petition No.9107 of 2014).

Md. Nasirul Alam and others  :                 .  .   .   Petitioners

(In C.P. No. 762 of 2023)

Bakhteyar Ahmed and others  :                 .  .   .   Petitioners

(In C.P. No. 758 of 2023)

-Versus-

The Government of  :                              . .  . Respondents Bangladesh, represented by the                                            (In both the cases) Secretary, Ministry of

Environment & Forest,

Bangladesh Secretariat, Dhaka

and others

For the Petitioners  :  Mr. Probir Neogi, Senior Advocate

(In both the cases) with Mr. Ahsanul Karim, Senior

Advocate, instructed by Ms. Shahanara Begum, Advocate-on-Record

For Respondent No.1    :  Mr. A.M. Amin Uddin, Attorney

(In both the cases) General, with Mr. Mohammad Saiful

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

For Respondent No.7    :  Mr. Manzill Murshid, Senior Advocate, (In C.P. No. 762 of 2023) instructed by Mr. Md. Nurul Islam

Bhuiyan, Advocate-on-Record

For Respondent No.15    :  Mr. Manzill Murshid, Senior Advocate, (In C.P. No. 758 of 2023) instructed by Mr. Md. Nurul Islam

Bhuiyan, Advocate-on-Record Respondent Nos. 2-6 & 8-13  :  Not represented

(In C.P. No. 762 of 2023)

Respondent Nos. 2-14 & 16-27  :  Not represented

(In C.P. No. 758 of 2023)

Date of hearing and judgment  :  The 4th day of June, 2023

JUDGMENT

M. Enayetur Rahim, J: These civil petitions for leave to appeal  are  directed  against  the  judgment  and  order  dated

16.02.2023  passed  by  the  High  Court  Division  in  Writ Petition No.9107 of 2014 discharging the Rule.

The relevant facts leading to the filing of the present civil  petitions  for  leave  to  appeal  are  that,  the  present respondents-writ  petitioners  (hereinafter  referred  to  as writ  petitioners)  are  the  established  businessmen  dealing with the business of brick manufacturing in their respective owned brickfields. They have been pursuing their businesses upon obtaining trade licenses issued by the Local Chairman being renewed in every year; have been paying income tax as well as VAT to the authority concerned for their respective businesses.  The  petitioners  had  been  running  their businesses in compliance  of the  ""  (as amended in 2001) and respectively.

On  12.07.2010,  the  writ  respondent  No.l  issued  a circular  bearing  No.  Pobomo/poribesh-3/04/(evani)- 02/2008/394  with  direction,  inter-alia,  that  every brickfield with 120 feet heightened permanent "Chimini" was required to be transformed under new technology i.e. hybrid Hoffman kiln, zigzag kiln, vertical shaft brick kiln, tunnel kiln etc. within 3(three) years from the publication of the said  circular.  In  compliance  thereof,  the  writ petitioners had upgraded their respective brickfields with new technology investing more than crore.

 While the writ petitioners were pursuing their lawful businesses of brick manufacturing  “

Act  No.59  of  2013  came  into  operation  by  publishing  in Gazette  on  20.11.2013.  However,  vide  Section  8(4)  of  the said  Act,  all  brickfields  which  were  being  run  with Clearance  Certificate  and  were  situated  within  the

prohibited zone  "  as defined  in Section 8(1) of the Act,  were  required  to  transfer  elsewhere within  2(two)  years  from  the  date  the  aforesaid  Act  came

into  force,  otherwise  their  respective  licenses  would  be treated to have been cancelled (  

In  this  context,  the  respective  petitioners  made  a representation  on  18.08.2014  to  the  office  of  writ respondent  No.3,  Deputy Commissioner,  Bandarban  Hill District  with a prayer for  allowing them to transfer their respective  brickfields  elsewhere  within  a  period  of  2(two) years under the Act No.59 of 2013, but with no response.

Under the circumstances, the writ petitioners  finding no other  alternative  filed  Writ  Petition  No.  9107  of  2014 before the High Court Division seeking a direction upon the respondents  to  allow  them  to  transfer  their  respective brickfields  to  different  location in  compliance  of  Section 8(4) of the Act, whereupon Rule Nisi  was issued with an ad- interim order.

Writ  respondent  No.2  contested  the  Rule,  but  did  not file  any  Affidavit-in-Opposition.  It  was  the  case  of respondent  No.2  that  section  4  of  the  Act,  2013  gives  a scope  for  the  brickfield  owner(s)  including  the  writ petitioners  to  transfer  their  respective  brickfields  to acceptable  places  within  2(two)  years  with  effect  from 20.11.2013, the day of which Act, 2013 came into operation and  that  said  2(two)  years  had  expired  on  10.11.2015. However, the writ petitioners have filed this writ petition seeking  only  direction  upon  the  writ  respondents  to  allow them to transfer their established brickfields at different locations in compliance with Section 8(4) of the Act, 2013.

Said prayer of the writ petitioners was duly allowed by the High Court Division while passing ad-interim injunction for 2(two) years, vide order dated 16.10.2014. Hence, on the expiry of the said period on 16.10.2016, this Rule has become infructuous by operation of law.

A Division Bench of the High Court Division after hearing the Rule Nisi by the impugned judgment and order discharged the Rule. 

Being aggrieved by the said judgment and order, the writ petitioners have preferred these civil petitions for leave to appeal before this Division.

Mr. Probir Neogi, learned Senior Advocate, appearing on behalf of the petitioners submits that the High Court Division  pleased to get apprised by the learned Advocate for respondent No.2, Department of Environment that as per Section 8(3)(gha) of the aforesaid Act, 2013, the "Parbotto Zelar Poribesh Unnoyon Committee" and also, "Zela Poribesh O Bon Unnayan Committee" were constituted and later the committee had taken a decision on 08.11.2022 for selection of designated area for establishment of brickfield and also, for making recommendation towards issuance of license for running the businesses of the brick manufacturing, meaning thereby, the High Court Division requires to pass an order of direction upon the respondents to make the declaration of the designated area to which, the petitioners may transfer their business setup pursuant to Section 8(4) of the aforesaid Act, 2013.

The learned Advocate also submits that the High Court Division erred in fact that other than writ respondent No.2, no Government respondents have contested the Rule, in as

much as, writ respondent No.2, Department of Environment did not  file  any  Affidavit-in-Opposition  except  added  party, private  respondent  and  yet,  the  High  Court  Division  went beyond  the  periphery  of  the  affidavits  available  for adjudication of the matter and gave findings that the writ petitioners have been causing environmental hazards.

Mr. Neogi further submits that the High Court Division erred in law in giving findings that the petitioners in the writ petition  only sought for a direction in the form of writ of  mandamus  to  allow  them  to  transfer  their  respective brickfields to different location under Section 8 (4) of the aforesaid  Act,  inasmuch  as  the  petitioners’  contention  as the   has  not  yet  identified/fixed designated place( as per Section 8 (3) (gha) of the Act,  2013  has  no  leg  as  pursuant  to  the  ad-interim injunction the petitioners were and are still running their respective brickfields within the prohibited/restricted area for more than 9 (nine) years from the date of promulgation of the Act, 2013 whereas vide Section 8 (4) of the Act, they had  only  2(years)  time  to  transfer  their  respective brickfields  elsewhere;  whereas,  the  High  Court  Division erred in law in interpreting that Section 8 (4) of the Act, 2013 is dependent on the obligations as set on the shoulder of the respondent Government that to constitute the  

and said committee is under legal compulsion to

designate an area, to which, the petitioners would transfer their brickfields business setups as stipulated in Section 8 (3) (gha) of the Act. Thus, considering the same, the impugned judgment and order is liable to be aside.

Mr. Neogi further submits that the High Court Division in  its  findings  stated  that  the  writ  petitioners  have miserably  failed  to  show  from  the  writ  petition  that  they have taken steps so far for transferring of their respective brickfields  elsewhere,  whereas,  the  High  Court  Division miserably failed to understand the failure of the respondent Government  Administration  for  designating  a  specific location  as  stipulated  under  Section  8(3)(gha)  of  the aforesaid  Act,  2013  within  2  (two)  years  of  time  and thereafter, only then, the writ petitioners could transfer their  brickfield  establishments  to  the  " otherwise, wherever, the writ petitioners would transfer their business setups then said area would be treated as prohibited zone. The learned Advocate lastly submits that it is apparent from the  Resolution  of  Bandarban  Hill  District  Environment  and Forest Development Committee that the Government has already taken  steps  in  order  to  fix/designate  a  place  for transferring the brickfields of the district as per section 8(3)(gha)  of  the  Act,  2013,  thus,  unless  and  until  the Government fix/ designate a place to transfer in compliance to the given laws then the present petitioners cannot able to  transfer  their  brick  fields  establishment  to  the  same

place and thereby, till the respondents designate the place, they  may  kindly  be  directed  not  to  interfere  with  the brickfield business of the petitioners.

Mr. A.M. Amin Uddin, learned Attorney General, appearing for  respondent  No.1  in  both  the  cases  made  submissions  in support of the impugned judgment and order of the High Court Division.  He  also  submits  that  at  present  the  petitioners have  no  legal  or  valid  permission/license  to  run  the brickfields,  and  taking  the  advantage  of  pendency  of  the litigation  they  are  running  their  brickfield  business causing  public  hazards  which  is  detrimental  for  the ecological balance. 

 Mr. Manzil Murshid, learned Senior Advocate, appearing for respondent No.7 in C.P. No. 762 of 2023 and respondent No.15  in  C.P.  No.758  of  2023  also  makes  submissions  in support  the  impugned  judgment  and  order  of  the  High  Court Division. 

We  have  considered  the  submissions  of  the  learned Advocates for the respective parties, perused the impugned judgment  and  order  of  the  High  Court  Division  and  other connected papers available on record.

Having regard to the fact that the Government enacted

‘ ’  which  came  into  force  on 20.11.2013. Section 4 of the said Ain prohibits to run the brickfields without license. Section 4 of the said Ain runs as follows:

Section 8 of the said Ain prohibits to run brickfields within some specific areas. Section 8 of the said Ain runs as follows:

Degraded Air Shed

Underlines

supplied).

underlines supplied)

The  learned  Advocate  for  the  writ  petitioners  has argued that though they approached before the Bandorban Hill District  Environment  and  Forest  Department  Committee  by submitting  representation  for  relocating  their  business place as per section 8(3)(ga) of the said Ain, but till date the said committee and the Government did not fix any place, where the petitioners’ brickfields can be shifted and, as such, till fixation or re-location of the designated area the writ petitioners are entitled to run their business.

In the instant case the High Court Division issued Rule Nisi on the following terms:

""Let a Rule Nisi be issued calling upon the respondents to show cause as to why they should not  be  directed  to  allow  the  petitioners  to transfer their respective established brickfields to  different  locations  in  compliance  with  the provision of Section 8(4) of the  

and/or  such  other  or  further  order  or orders passed as to this Court may seem fit and proper. ''  

From the materials as placed before us it appears that the petitioners had approached to the district

 for  relocation  of  the  new  place  to  establish  the brickfields,  however  the  committee  concerned  did  not relocate the designated area as yet.

In view of the Provision of section 8 (3)(Gha) of the the concerned Hill District   has been assigned to select/fix designated area for

establishment of brickfields. 

In view of the above relevant law and factual position of the present case, we are inclined to dispose of these leave petitions with the flowing directions:

is directed to dispose of the representations  of  the  writ  petitioners  following  the provisions of   within 2(two) months, if those are filed, or has already been filed.

Accordingly,  both  the  civil  petitions  for  leave  to appeal are disposed of. 

C. J.

J. J.

B.S./B.R./ *Words- 2,430*