IN THE SUPREME COURT OF BANGLADESH
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)
The Government of : . . . Respondents Bangladesh, represented by the (In both the cases) Secretary, Ministry of
Environment & Forest,
Bangladesh Secretariat, Dhaka
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
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
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
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.
B.S./B.R./ *Words- 2,430*