IN THE SUPREME COURT OF BANGLADESH                    HIGH COURT DIVISION

                  (SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION No. 12552 OF 2015

In the matter of:

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

AND

                         In the matter of:

Shah Md. Shafiqul Islam and others                                   ....Petitioners.

-Versus-

Bangladesh of the People’s Republic of Bangladesh,  represented  by  the Secretary,  Ministry  of  Environment, Bangladesh  Secretariat,  Shahabagh, Dhaka and others  

                                                          .....Respondents.

Mr. Maqbul Ahmed, Advocate with Mrs. Sathi Shahjahan, Advocate 

         ......For Petitioners. Ms. Farhana Afrose Runa, A.A.G. 

                                         ...For respondent No.1 & 2.

Ms. Amatul Karim, Advocate 

                                                              .… For Respondent No.3.

Judgment on: 12.12.2021

Present:

Mr. Justice Md. Khasruzzaman

                  And

Mr. Justice Md. Mahmud Hassan Talukder.

MD. KHASRUZZAMAN, J.:

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

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why Clause Nos. 2, 3 and 4 of the Government

Notification  vide  Memo  No.  ceg/cwi‡ek-3/04/B‡cvwb  Av-1/2013/155 dated 25.02.2014  purportedly  issued  from  the  Paribesh  Branch-3  of

Ministry of Environment and Forest, Government of the People’s

Republic of Bangladesh directing .. “2| cye©Zb BU †cvov‡bv (ms‡kvab) AvBb,2001

Gi 3(5) aviv Abyhvqx †`‡ki mKj bem„ó wmwU K‡c©v‡ikb/‡Š cimfv  A_ev m¤úªmvwiZ wmwU K‡c©v‡ikb/‡cŠimfv Gi ewa©Zvs‡k BUfvUv (hw` _v‡K) †mm g¯Í BUfvUvmgyn AvMvgx 30 Ryb 2014 Zvwi‡Li g‡a¨ eÜ A_ev ¯’vbv¯Íi Kivi wb‡`©kbv i‡q‡Q| 3| GQvov c~e©Zb AvBb Abyhvqx we`¨gvb 120 dzU D”PZvi ¯’vqx wPgbx wewkó BUfvUvmgyn‡K AvMvgx 30 Ryb 2014 ZvwiL ch©šÍ 2(`yB) jÿ UvKv ÿwZcyiY Av`vq mv‡c‡ÿ cwiPvjbvi AbygwZ †`qv n‡q‡Q| 4| cªbxZ BU cÖ¯‘Z I fvUv ¯’vcb (wbqš¿Y) AvBb, 2013 AvMvgx 01 RjvB, 2014 n‡Z Kvh©Kix n‡e weavq Aby‡”Q` 2 I 3 G ewY©Z myweav mgyn †Kvbµ‡gB Avi ewa©Z Kiv n‡e bv| Ó so far as it relates to the petitioners brick fields those

are  situated  in  different  Upazilas  under  Chandpur  District

imposing the aforesaid conditions are violative of article 31 of the Constitution which guaranteed freedom of profession and or occupation and violative of the provision of the Bangladesh Environment Conservation Ain, 1995 and the provisions of the BU

†cvov‡bv (wbqš¿Y) AvBb, 1989 as repealed by the BU cÖ¯‘Z I fvUv ¯’vcbv (wbqš¿Y) AvBb, 2013 as contained in Annexure-E to the writ petition should not be

declared to have been issued without lawful authority and is of no

legal effect and/or pass such other or further order or orders as

this Court may seem fit and proper.”

It is stated in the writ petition that the writ petitioners after

obtaining licence and environmental clearance certificate from the concerned authorities established 120 feet chimney brickfields in different upazilas of Chandpur District under the “BU †cvov‡bv (wbqš¿Y)

AvBb, 1989Ó by investing huge amount of money on taking loan from the banks and thereafter they got their licences renewed till 30.06.2012 vide Annexures-A and B Series to the writ petition and has been manufacturing the bricks in accordance with law. But the Government vide Memo No.  ceg/cwi‡ek-3/‡RcÖ/ (B‡cvwb)-1/2008/391 dated 12.07.2010 directing the brickfield owners to get their existing 120 feet chimney brickfields converted into Hybrid Hoffman Kiln/Zigzag Kiln/Vertical Shaft Brick Kiln with direction upon the relevant authority to renew the existing environmental clearance certificate and licence only upto two years. In this respect it is stated that the petitioners do not have any idea about the models as directed but they came to know from the expert that conversion into the aforesaid models is a long process and it requires experts/machineries which are not available in our country and as such, the Government extended its earlier time frame upto 31st March, 2013 for installation of the same vide Memo dated 02.01.2012 with a condition to pay a fine of TK.1,00,000.00 (One Lac) vide Annexure D to the writ petition. Thereafter, the Government published the “BU cÖ¯‘Z I fvUv ¯’vcbv (wbqš¿Y) AvBb, 2013Ó through Bangladesh Gazette on 20.11.2013 with effect from 01.07.2014 upon repealing the earlier Act of 1989 pursuant to which the

Ministry of Environment and Forest Affairs issued the impugned Clause Nos. 2, 3 and 4 vide Notification under Memo No. ceg/cwi‡ek- 3/4/B‡cvwbAv-01/2013/155 dated 25.02.2014 (Annexures-E and E-1). Under such circumstances, the writ petitioners filed an application dated 29.11.2015 before the respondent No.4 with a prayer for extension of time to convert their 120 feet chimney brickfields into environment friendly Zigzag Kiln vide Annexure-F to the writ petition but the respondents did not pay any heed to the same.

In such backdrop of the matter, the writ petitioners have challenged Clause Nos. 2, 3 and 4 vide Notification under Memo No. ceg/cwi‡ek-3/4/B‡cvwbAv-01/2013/155 dated 25.02.2014 (Annexures-E) and obtained the above Rule Nisi.  

The notice of the Rule Nisi  having been served upon the respondents,  respondent  No.4,  Director  General,  Environment Directorate under the Ministry of Environment, Forest and Climate Change Affairs has entered appearance in this Rule Nisi through Ms.  Amatul  Karim,  the  learned  Advocate  and  filed  affidavit-in- opposition denying all material allegations made in the writ petition and contending inter alia that in this writ petition the petitioners have  25  brickfields  out  of  them  03  brickfields  belonging  to petitioner Nos. 20, 21 and 25 are Zigzag brickfields but the other

22 brickfields belonging to petitioner Nos. 1 to 19, 22, 23 and 24

are chimney brickfields which are prohibited by the “BU cÖ¯‘Z I fvUv ¯’vcbv (wbqš¿Y) AvBb, 2013Ó  through Bangladesh Gazette on 20.11.2013 with effect from 01.07.2014. It is contended that for the purpose of protecting the environment from pollution, to protect the fertility of

the land and forest, the Government has decided to convert existing

120  feet  chimney  brickfield  into  improved  environment  friendly modern  technology  and  as  such  issued  notification  dated 15.07.2010, 25.02.2014 and 12.03.2014 and 23.11.2015 in this respect but the petitioners did not comply with the same. It is further stated that as a plea of non compliance of the Government Notifications and the law, the petitioners has shown lame excuse in

the  writ  petition  that  modern  technologies  are  not  available  in Bangladesh but they did not approach the authority to deliver the design of modern brickfields which are available in Bangladesh. It

is also stated that most of the writ petitioners subsequent to this

writ petition also filed Writ Petition Nos. 17381 of 2017, 12881 of 2016 and 15196 of 2016 and obtained Rule Nisi and interim order

of  injunction  and  as  such,  the  present  Rule  Nisi  has  become infractuous.  

 Mr.  Maqbul  Ahmed  along  with  Ms.  Sathi  Sahjahan,  the

learned  Advocates  for  the  petitioners  has  submitted  that  the petitioners  after  obtaining  necessary  licence  and  environmental clearance  certificate  from  the  relevant  authorities  started  their business of manufacturing bricks under the law of 1989 and they

are getting their licences renewed from time to time on depositing

renewal fees in accordance with law but without giving any notice

the  respondents  issued  the  impugned  Notification  dated 25.02.2014 stopping the lawful business of the petitioners which

are violative of articles 31 and 40 of the Constitution and as such

the same is liable to be declared to have been issued without lawful authority and is of no legal effect.  

By referring to the affidavit-in-opposition Ms. Amatul Karim,

the learned Advocate for the respondent No. 4 submits that to

protect environment and public property in the interest of present

and the generation to come, the government issued notifications at

times and subsequently published the “BU cÖ¯‘Z I fvUv ¯’vcbv (wbqš¿Y) AvBb, 2013Ó through Bangladesh Gazette on 20.11.2013 with effect from 01.07.2014 pursuant to which the writ petitioners have no other

option but to convert their existing 120 feet chimney brickfields

into zigzag kiln and as such, the present Rule Nisi is required to be

discharged as there is no merit at all in the same. She further submits that most of the petitioners in this writ petition also filed Writ Petition Nos. 17381 of 2017, 12881 of 2016 and 15196 of 2016  and  obtained  Rule  Nisi  along  with  an  interim  order  of direction  and  as  such,  the  present  Rule  Nisi  has  become infractuous. Moreover, the learned Advocate pointed out that the interim direction of not to interfere with the petitioners’ brickfields has  already  expired  and  the  purpose  of  the  Rule  has  become frustrated and consequently the same is liable to be discharged.

Considering the submissions of the learned Advocate for both the parties and on perusal of the materials on record it appears that as per article 18(A) of the Constitution, the respondents are duty bound to protect environment and public property for the better interest of the present and future generations and as such, the respondents from to time issued several notifications and lastly published the “BU cÖ¯‘Z I fvUv ¯’vcbv (wbqš¿Y) AvBb, 2013Ó through Bangladesh Gazette dated 20.11.2013 with effect from 01.07.2014 pursuant to which the writ petitioners have no other option but to convert their existing 120 feet chimney brickfields into zigzag kiln. It appears that probably the writ petitioners appreciating purpose of the law have filed application dated 29.11.2015 to the respondent No. 5

vide Annexure-F to the writ petition with a prayer for giving time to

have their 120 feet chimney brickfields converted into the improved environment friendly modern technologies field like Zigzag Kiln and

side by side the writ petitioners have filed the present writ petition

just after three days of filing the application dated 29.11.2015.

It appears that at the time of issuance of the Rule Nisi on 09.12.2015, an interim order was passed directing the respondents

not  to  interfere  with  running  their  (petitioners)  brick  fields  till 30.06.2016 with clear terms /expressions that no further extension

will be given.

So, it is clear that by the interim order the writ petitioners

were given an opportunity of conversion of their chimney brickfields

into Zigzag Kiln upto 30.06.2016. But till today the writ petitioners

did not avail such opportunity to comply with the law. It further appears that challenging the provision of the “BU cÖ¯‘Z I fvUv ¯’vcbv (wbqš¿Y) AvBb, 2013Ó some of the petitioners filed writ petitions rendering the present writ petition to be infractuous. It also appears that the petitioners at the time of obtaining the Rule has relied on some writ petitions being Writ Petition Nos. 8394 of 2014, 8712 of 2014 and

8715 of 2014 which were filed challenging the same notification

dated  25.02.2014.  The  learned  Advocate  for  the  respondents

informed  this  Court  that  the  Rules  Nisi  issued  in  those  writ petitions were discharged in 2020.

In view of the aforesaid facts and circumstances, we do not find  anything  to  interfere  with  the  impugned  notification  and moreover, the opportunity, as asked for by the petitioners before the respondents, as given by the interim order of this Court being not availed of, the Rule Nisi has become infractuous and as such, the same is liable to be discharged.

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

Communicate the order.

MD. MAHMUD HASSAN TALUKDER, J: I agree.