IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 10437 of 2022

In the matter of:

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

- AND-

In the matter of:

A.N.M.Helal  Uddin,  President,  Cox’s  Bazar Citizen Forum, Cox’s Bazar.

    ………..Petitioner.           -Versus-

Government  of  Bangladesh  represented  by the Secretary, Ministry of Environment and Forest,  Bangladesh  Secretariat,  Ramna, Dhaka and others,

............. Respondents.

Mr. Md. Amir Hossain, Advocate with

Ms. Aziha Akter, Advocate

 ….For the petitioner. Mr. Bepul Bagmar, DAG with

Mr. Md. Sirajul Alam Bhuiyan, AAG

         ….For respondent No.2.

Judgment on: 14.03.2024

Present:

Mr. Justice Md. Khasruzzaman

and

Mr. Justice K M Zahid Sarwar

Md. Khasruzzmaman, J.

In the application under article 102 of the Constitution, on 01.09.2022 the Rule Nisi under adjudication was issued in the following terms:

“ Let a Rule nisi be issued calling upon the respondents to show  cause  as  to  why  the  action  of  the  respondents constructing a Jetty  at Royel Tulip Hotel’s Point,  Inani, Cox’s Bazar Sadar, Cox’s Bazar Sea Beach (as evidenced from the news reported in the Daily Inquilab on 08.1.2021) (Annexure-A-1) should not be declared to have been done without any lawful authority and is of no legal effect and as  to  why  a  direction  should  not  be  given  upon  the respondents  to  demolish  the  Jetty  immediately  and/or pass such other or further order or orders as to this Court may seem fit and proper.”

Facts relevant for disposal of the Rule Nisi, in short, are that Cox’s Bazar Sea Beach is the longest Sea Beach of the World which is one of the significant tourist destinations in Bangladesh.  It  stretched  about  120  Kilometers  Sandy  Sea Beach with a gentle slope. The Government-respondent No.1 exercising  power  under  section  5  of  the  Environment Conservation Act, 1995 has declared certain areas including Cox’s Bazar to Teknaf Sea Beach as Ecologically Critical Area (ECA) vide Gazette Notification dated 19.04.1999.As per the said gazette notification any change in the soil and water of the  natural  characteristics  has  been  prohibited.  Without considering  the  above  facts  and  circumstances,  the respondent  No.2  undertook  the  project  for  construction  of gigantic jetty with a depth of 100 feet and concrete casting surface from the Hotel Royal Tulip, Inani, Cox’s Bazar Sea Beach. Due to such construction of jetty, Cox’s Bazar Sea Beach has been divided and lost its fundamental character. The petitioner came to know about the construction of jetty from  a  report  widely  published  in  the  Daily  Inquilab  on 24.10.2021 and 08.11.2021 vide Annexures- A, A-1 and A-2. Thereafter,  without  making  any  delay,  the  petitioner  made representation dated 16.11.2021 to the respondent Nos. 4 to 6 stating  inter-alia  that  the  construction  is  an  illegal construction and it has bad impact on the human life and environment  including  destruction  of  bio  diversity,  socio economic condition and division of biggest sea beach of the world (Annexures- B, B-1 and B-2). But the respondents did not  care  about  the  same.  Thereafter,  the  petitioner  issued notice demanding justice through his learned Advocate to the respondents  on  25.11.2021  requesting  to  take  immediate steps against such illegal jetty (Annexure-C). But they did not pay any heed to the same.

Under the above facts and circumstances, the petitioner earlier filed Writ Petition No. 11698 of 2021 but it was not in form  and  as  such,  it  was  rejected  for  not  being  pressed. Thereafter, the petitioner filed the instant writ petition and obtained the above Rule Nisi.

After  obtaining  the  Rule  Nisi,  the  petitioner  filed  an application for direction upon the respondent No.4 to stop operation  of  the  Jetty  in  question.  After  hearing,  the application  was  kept  with  the  record  vide  order  dated 10.01.2024.

The  respondent  No.2,  Secretary,  Ministry  of  Defense, Gano Bhaban Complex, Dhaka, filed an affidavit-in-opposition denying all material allegations made in the writ petition and contending inter-alia that the petitioner has no locus standi to file the writ petition and nowhere in the writ petition he made any statement as to how he is an aggrieved person. Although the petitioner made objection against the construction of jetty which is situated near the Hotel Royal Tulip, they have no objection  against  such  Hotel.  It  is  stated  that  the  jetty  is situated on the land belonged to Bangladesh NAVY which was constructed with prior approval of the concerned authorities to conduct  International  Fleet  Review  of  2022  (in  short,  IFR- 2022) and also to conduct subsequent naval operations to protect sovereignty of the People’s Republic of Bangladesh. IFR is an international issue of pride, dignity, honour and sign of national  prosperity  which  extended  our  international friendship  beyond  the  horizon.  The  petitioner  failed  to understand the implied application of IFR-2022 and the state policy object and interest of the sovereignty. Sea is the source

of  enormous  resources  of  providing  us  valuable  energy, minerals,  protein,  aquaculture,  shipping  port  and  marine, logistics, tourism and others. The Bay of Bengal being largest bay of the world is strategically important for all the littoral countries.  The  Territorial  Waters  and  Maritime  Zones  Act, 1974 has established the sovereign rights of Bangladesh over the sea and its resources. The maritime boundary delimitation with  the  neighbouring  countries  has  generated  new opportunities for unhindered exploration and exploitation of the marine resources leading to ensure the food security of the growing  population  and  contribute  to  the  sustainable development  of  Bangladesh  in  a  changing  environment considering our rights on the vast sea area in the Bay of Bengal under national jurisdiction and there is a tremendous demand to extend the naval friendship and cooperation. The causeway and the jetty can be used for facilitating offshore search  and  rescue  operations.  During  natural  calamity, emergency relief operation can be expedited using the jetty. Bangladesh  Oceanographic  Research  Institute  (BOIR)  has been  established  at  Cox’s  Bazar  which  requires  naval assistance. It is stated that Anchor holding ground and depth of water are suitable for naval vessels. As a result, besides Saint Martin’s Inland, this area is an alternative anchorage for the NAVY. This area was also used for foreign ships during IFR-2022. The said causeway and jetty can be used to provide operational assistance and maintenance to naval vessel while at anchor and during patrolling off at Cox’s Bazar. Ships of Bangladesh NAVY and Coast Guard are deployed in different operations. In such operations, emergency medical assistance is provided to critical patients through evacuation and transfer to different hospitals. Inani is a forwarded location from where wartime logistics will be feasible. The causeway and jetty can be used in wartime and peacetime to carry out ammunitions re-supply, loading/unloading of provision and spares to ships at sea in order to ensure the regular presence of the navy in different naval operation like operation TREASURE SHEILD, PROTIRODH,  PROTIHOTO,  BLUE  GUARD,  NIRMUL, SURAKKHA, SOMUDRA PROHORA etc. It is stated that on 06.12.2022 in the occasion of IFR 2022, the Prime Minister for the People’s Republic of Bangladesh has inaugurated the jetty for  operational  purpose.  But  the  petitioner  with  a  view  to defraud  shedding  crocodile  tears  in  the  name  of  so  called ‘national  interest’  has  published  misleading  information without focusing on the national interest which is subversive of  the  state  and  as  such,  the  Rule  Nisi  is  liable  to  be discharged with costs.

Mr. Md. Amir Hossain along with Ms. Aziha Akter, the learned  Advocates  appearing  on  behalf  of  the  petitioner submits that Cox’s Bazar Sea Beach is the longest Sea Beach in the world. The Government vide Gazette Notification dated 19.04.1999 declared the sea beach as ecologically critical area by which any kind of change in the basic environment of the sea beach was prohibited. But the respondent No.2 without considering anything has constructed the jetty which is illegal, arbitrary  and  without  lawful  authority.  Referring  to  the judgment and order dated 22.07.2010 passed in Writ Petition No. 639 of 2010 which was disposed of along with other 34 writ  petitions  and  subsequently  affirmed  by  the  Appellate Division in CPLA No. 4057 of 2018 along with similar other civil petitions, the learned Advocate further submits that any kind of change in the said ecologically critical area has not been approved by the Court with observation to maintain the basic environment of the said ECA area and as such, the Rule Nisi may be made absolute with a direction to demolish the said jetty constructed in the ECA area of Cox’s Bazar.

Mr. Bepul Bagmar, the learned Deputy Attorney General along  with  Mr.  Md.  Sirajul  Alam  Bhuiyan,  the  learned Assistant  Attorney  General  appearing  on  behalf  of  the respondent  No.2  submits  that  the  petitioner  has  no  locus standi to file the writ petition. Referring to paragraph No.5 of the writ petition, the learned Deputy Attorney General submits that the petitioner challenged the construction of NAVAL Jetty without making any sort of objection with regard to Hotel Royal Tulip, Inani, Cox’s Bazar sea beach which means that the writ petition is filed to represent the opulent members who is affected by the construction of NAVAL Jetty. Moreover, the petitioner did not make any statement as to how he is an aggrieved person or whether the writ petition has been filed as public interest litigation (PIL) and as such, the writ petition is not  maintainable.  Referring  to  the  decision  in  the  case  of National Board of Revenue Vs. Abu Saeed Khan and others, 18 BLC(AD)116 the learned Deputy Attorney General further submits that challenging the policy matters of the Government and  Development  works  of  the  Government  as  well  as representing the opulent member herein the Royal Tulip Hotel who  is  affected  by  such  construction  no  writ  petition  is maintainable  and  the  Court  has  no  power  to  entertain  a petition which trespasses into the areas which are reserved to the executive and legislative by the Constitution. Moreover, there  is  no  question  of  environmental  pollution  from  the Environment  Directorate  by  such  construction  of  defense installation i.e. the NAVAL Jetty which was constructed with prior approval of the concerned authority with environment friendly modern architectural design by ensuring ecological stability  and  keeping  natural  flow  of  sea  waves.  The  said NAVAL  Jetty  was  constructed  with  a  view  to  facilitate

We  have  considered  the  submissions  made  by  the learned Advocate and the learned Deputy Attorney General for the respective party and perused the writ petition and other papers annexed thereto as well as the law and decision as referred to by the parties.

On perusal of the materials on record, it appears that the respondent No.2 namely Ministry of Defense, Gano Bhaban Complex, Dhaka has constructed a Jetty with prior approval of the  concerned  authority  in  front  of  the  land  belonged  to Bangladesh Navy. The purpose of construction of such jetty is for  conducting  International  Fleet  Review,  2022  (IFR-2022) and for conducting naval operations including offshore search and  rescue  operations  and  to  protect  sovereignty  of  the People’s  Republic  of  Bangladesh.  In  such  operations, emergency medical assistance is provided to critical patients through evacuation and transfer to different hospitals. The same can be done using the jetty in question. In the affidavit- in-opposition the respondent stated that Inani is a forwarded location wherefrom wartime logistics will be feasible and the causeway and jetty will play an important role in this respect. The jetty can be used both in wartime and peacetime to carry out ammunition re-supply, loading/unloading of provision and spares to ships at sea in order to ensure the regular presence of the Navy in different Naval operations such as TREASURE SHEILD, PROTIRODH, PROTIHOTO, BLUE GUARD, NIRMUL, SURAKKHA, SOMUDRA PROHORA etc. From the affidavit-in- opposition we have also found that the Jetty was also used for anchorage of foreign ships during IFR of 2022. It is claimed by the respondent that the jetty in question will lead our nation to  reach  at  optimum  level  of  the  international  naval cooperation. The jetty is a state policy object and interest of

At this stage, challenging the construction of jetty of Bangladesh  Navy,  the  petitioner  has  filed  the  instant  writ petition. Nowhere in the writ petitionthe petitioner mentioned as to whether hehas filed the same as a public interest litigant since he is not personally aggrieved party. In the writ petition, the  petitioner  stated  that  the  construction  of  jetty  was undertaken with a depth of 100 feet deep and a concrete casting surface in and from Hotel Royal Tulip, Inani, Cox’s Bazar sea beach. Such type of statement has directly and indirectly  indicated  that  Hotel  Royal  Tulip  is  aggrieved  by construction of such jetty but the said Hotel has not come forward  to  file  the  writ  petition.  However,  relying  on  the judgment and order vide Annexure-D to the writ petition, the petitioner  filed  the  writ  petition  by  challenging  the construction  of  jetty  which  is  the  state  policy  object  and interest of the sovereignty of this Country.

In such circumstances, the issues raised before us for adjudication are that:

1.               Whether  the  writ  petition  is  maintainable challenging the NAVAL Jetty which was constructed as  a  state  policy  object  and  interest  of  the sovereignty of the country.

2.            Whether  the  judgment  and  order  passed  by  this Division and subsequently affirmed by the Appellate Division  vide  Annexure-D  to  the  writ  petition  is applicable in view of the facts and circumstances of the present case.
3.         Whether the Rule Nisi has got any merit in the eye of law.

Let us take up the first issue as to whether the writ petition  is  maintainable.  It  appears  that  the  Jetty  was constructed  as  a  state  policy  object  and  interest  of  the Sovereignty of this country. We have already found that the purpose  of  construction  of  such  jetty  is  for  conducting International  Fleet  Review,  2022  (IFR-2022)  and  for conducting  naval  operations  including  offshore  search  and rescue operations and to protect sovereignty of the People’s Republic  of  Bangladesh.  In  such  operations,  emergency medical  assistance  is  provided  to  critical  patients  through evacuation and transfer to different hospitals. The Jetty was also used for anchorage of foreign ships during IFR of 2022. So, no doubt the jetty in question will lead our nation to reach at optimum level of the international naval cooperation. And as such, it is completely a state policy object and interest of the sovereignty of this country.

Now the question is whether it can be entertained in the writ petition. In the case of National Board of Revenue Vs. Abu Saeed Khan and others, 18 BLC (AD) 116, the Appellate Division has elaborately discussed and considered the first case  of  Dr.  Mohiuddin  Farooque  on  the  Public  Interest Litigation (PIL), and thereby fixed up the parameters within which the High Court Division can extend its discretionary jurisdiction in entertaining PIL matter which reads as follows:

“1.  Before entertaining a petition the Court will have to decide the extent of sufficiency of interest and the fitness  of  the  person  invoking  the  discretionary

jurisdiction.

2. The Court which considering the question of bonafide in a particular case will have to decide as to why the affected party has not come before it and if it finds no satisfactory  reason  for  non-appearance  of  such affected party it may refuse to entertain the petition.
3. If a petition is filed to represent opulent members who  were  directly  affected  by  the  decision  of  the Government or Public Authority, such petition would not be entertained.
4. The  expression  ‘person  aggrieved’  used  in  article 102(1)  means  not  any  person  who  is  personally aggrieved but one whose heart bleeds for the less fortunate  fellow  beings  for  a  wrong  done  by  any person or authority in connection with the affairs of the Republic or a Statutory Public Authority.

5. If the person making the application on enquiry is found  to  be  an  interloper  who  interferes  with  the action of any person or authority as above  which does not concern him is not entitled to make such petition.
6. The Court is under an obligation to guard that the filing of a PIL does not convert into a publicity interest litigation or private interest litigation.
7. Only  a  public  spirited  person  or  organization  can invoke the discretionary jurisdiction of the Court on behalf of such disadvantaged and, helpless persons.
8. The Court should also guard that its processes are not abused by any person.
9. The  Court  should  also  guard  that  the  petition  is initiated for the benefit of the poor or for any number of  people  who  have  been  suffering  from  common injury but their grievances cannot be redressed as they are not able to reach the Court.
10. It must also be guarded that every wrong or curiosity is not and cannot be the subject matter of PIL.

11. No petitions will be entertained challenging the policy matters of the Government, development works being implemented by the Government, Orders of promotion or transfer of public servants, imposition of taxes by the competent authority.
12. The Court has no power to entertain a petition which trespasses into the areas which are reserved to the executive and legislative by the Constitution.
13. A petition will be entertained if it is moved to protect basic  human  rights  of  the  disadvantaged  citizens who are unable to reach the Court due to illiteracy or monetary helplessness.
14. Apart from the above, the following some categories of cases which will be entertained:

1.             for protection of the neglected children.
2.             non-payment  of  minimum  wages  to  workers and  exploitation  of  casual  workers  and complaints of violation of labour laws (except in individual case).
3.              petitions  complaining  death  in  jail  or  police custody, or caused by law enforcing agencies.
4.             petitions  against  law  enforcing  agencies  for refusing  to  register  a  case  despite  there  are existing allegations of commission of cognizable offences.

5.              petitions against atrocities on women such as, bride  burning,  rape,  murder  for  dowry, kidnapping.
6.                petitions complaining harassment or torture of citizens  by  police  or  other  law  enforcing agencies.
7.             petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration,  maintenance  of  heritage  and culture, antiques, forest and wild life.
8.             petitions from riot victims.”        

On  perusal  of  the  aforesaid  parameters  mentioned  in serial Nos. 11 and 12, we find that no writ petition can be filed by challenging the policy matters and development works of the Government. Besides the Court has no power to entertain a petition which trespasses into the areas reserved for the executive and the legislative by the Constitution.

The present construction of NAVAL Jetty is the result of policy matters of the Government as well as object and interest of  the  sovereignty  of  the  state.  Furthermore,  such  a construction  of  NAVAL  Jetty  is  a  matter  of  the  executive. Moreover, the respondent-Environment Directorate did not file any affidavit raising any allegation of environmental pollution by such construction and disturbance of ecological balance and  as  such,  the  same  cannot  be  challenged  in  the  writ petition.

Now  let  us  come  to  the  second  issue  whether  the judgment and order dated 22.07.2010 passed by this Division in Writ Petition No. 639 of 2010 along with others, relying upon which the writ petition has been filed vide Annexure-D to the writ petition, can be applicable in view of the facts and circumstances of the present case.

On perusal of the said judgment, it appears that the judgment is with regard to cancellation of long term lease of the  petitioners  of  that  writ  petition.  But  the  present  writ petition is with regard to defense installation i.e. causeway and Jetty of Bangladesh NAVY which was constructed with prior  approval  of  the  concerned  authority  for  conducting International Fleet Review of 2022 (IFR-2022) and also for naval  operations  as  a  state  policy  object  and  interest  of sovereignty  of  the  country.  So,  the  judgment  and  order referred to by the petitioner in Annexure-D to the writ petition has no manner of application in the facts and circumstances of the present case.

Now comes to the last issue as to whether the Rule Nisi has got any merit.

In this respect, section 5 of the Bangladesh Environment Conservation  Act,  1995  is  with  regard  to  declaration  of ecologically  critical  area.  Under  sub  section  (1)  if  the Government is satisfied that due to environmental degradation eco-system  of  any  area  is  in  critical  condition  or  there  is apprehension to be in critical condition then the Government by Gazette Notification can declare such area as ecologically critical area (ECA) and side by side the Government will take measure to get rid from such critical condition. Under sub section  (4)  the  Government  will  fix  up  by  such  Gazette Notification as required under sub section (1) with regard to prohibition of any harmful/hazardous activities in the ECA. It appears  from  a  photocopies  of  the  management  of  ECA wherein some categories of restriction/prohibitions have been incorporated which reads follows:

BwmG-‡Z wb¤œewY©Z Kvh©µg wbwl× Kiv n‡q‡Q:-

Ò(1) cÖvK„wZK eb I MvQcvjv KZ©b ev AvniY;

2. mKj cÖKvi wkKvi I eb¨cÖvYx nZ¨v;
3. wSbyK, †Kvivj, K”Qc I Ab¨vb¨ eb¨cÖvYx aiv ev msMÖn;
4. cÖvYx I Dw™¢‡`i Avevm¯’j aesmKvix mKj cÖKvi Kvh©Kjvc;
5. fzwg Ges cvwbi cÖvK…wZK ‰ewkó bó/ cwieZ©b Ki‡Z ci v ‡Ggb mKj KvR;
6. gvwU, cvwb, evqy Ges kã `ylbKvix wkí ev cÖwZôvb ¯’vcb;
7. gvQ Ges Ab¨vb¨ RjR cÖvYxi ÿwZKviK †h †Kvb cÖKvi Kvh©vejx;

8.      b`x-Rjvkq-‡jK-Rjvfzwg‡Z emZevox, wkí cÖwZôvb &Ges Ab¨vb¨ cÖwZôv‡bi cq:cÖYvjxm„ó eR¨© I Zij eR©¨ wbM©gb Ges KwVb eR¨© AcmviY;
9.      hvwš¿K ev g¨vbyqvj ev Ab¨ †Kv‡bv c×wZ‡Z cv_imn Ab¨ †h †Kv‡bv LwbR m¤ú` AvniY|Ó     

On perusal of above nine categories of restrictions, we do

not find any restriction on the Government from construction

of any such jetty or any development work as a policy matters

of the Government. By using the causeway and the jetty the Bangladesh Armed Forces, Bangladesh Boarder Guard and Coast  Guard  will  make  their  offshore  search  and  rescue operations and providing emergency medical evacuation and transfer of the critical patients to different hospitals. This jetty

will play an important role to carry out ammunition resupply, loading/unloading of provision and spares to ships at sea for ensuring the regular presence of the navy in different naval operations as stated above.  

In the facts and circumstances stated hereinabove, the writ petition is not maintainable. Moreover, there is no merit

in the Rule Nisi which is liable to be discharged.

In the result, the  Rule Nisi is discharged without any order as to costs.

Communicate the order.

K M Zahid Sarwar, J.

I agree.