BELA v. Government of Bangladesh and others WP of 2003 (2003.5.11) (Parks and Playgrounds Case) (Original Petition)

IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(Special Original Jurisdiction)
WRIT PETITION NO. … OF 2003
IN THE MATTER OF:

An application under Article 102 (1)(2)(a) of the Constitution of the People`s Republic of Bangladesh.

AND

IN THE MATTER OF:

Articles 31 and 32 of the Constitution of the People`s Republic of Bangladesh.

AND

IN THE MATTER OF:

The Bangladesh Environment Conservation Act, 1995 (Act No. 1 of 1995), The Environment Conservation Rules, 1997, The Town Improvement Act, 1953 (E.B. Act No. XIII of 1953) as amended by Act No. XXI of 1987, The Building Construction Act, 1952 (E.B Act No. II of 1953) as amended by Act No. XII of 1987, …

AND

IN THE MATTER OF:

Illegal encroachment/ unlawful occupation and non-maintenance of open spaces including parks, udyans, gardens and playgrounds of the Capital City of Dhaka for construction and other purposes threatening the greenery and environment of the City and the civic, environmental, recreational and aesthetic rights of the City dwellers.

AND

IN THE MATTER OF:

Bangladesh Environmental Lawyers Association (BELA) being represented by its Director (Programs) and member, Executive Committee Syeda Rizwana Hasan, having office at House No. 9, Road No. 8, Dhanmondi Residential Area, P.S. Dhanmondi, Dhaka-1205.

………Petitioner

-Versus-

1. Bangladesh, represented by the Secretary, Ministry of Housing and Public Works, Government of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka;
2. The Chief Engineer, Public Works Department, Segunbagicha, Dhaka;
3. Bangladesh, represented by the Secretary, Ministry of Environment and Forest, Government of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.
4. The Director General, Department of Environment, Paribesh Bhaban, E-16, Sher-E-Bangla Nagar, Agargaon, Dhaka;
5. The Dhaka City Corporation, represented by its Mayor, Nagar Bhaban, P.S. Ramna, Dhaka
6. Rajdhani Unnayan Kartipakhya, RAJUK), represented by its Chairman, Rajuk Bhaban, P.S. Motijheel, Dhaka;

………. Respondents

To: Mr. Justice Mainur Reza Chowdhury, the Chief Justice of the Supreme Court of Bangladesh and his companion Justices of the said Hon`ble Court.

The humble petition of the above named Petitioner most respectfully-

SHEWETH:

1. That the Petitioner is Bangladesh Environmental Lawyers Association, hereinafter referred to as BELA, a society registered under the Societies Registration Act, 1860, registration number 1457 (17) dated 18th February, 1992 being represented by its Director (Programmes) Syeda Rizwana Hasan who has been duly authorized by a resolution of the Executive Committee of BELA dated 30 June 2001 to represent BELA in all proceedings, cases and so on to promote its objectives and as such is competent to represent BELA. Photocopies of the Certificate of Incorporation of BELA and the resolution dated 30 June, 2001 authorizing Syeda Rizwana Hasan to represent BELA are annexed herewith and marked as Annexures – `A` and `A-1` respectively.

2. That BELA has been active since 1992 as one of the leading organizations with proven, documented and well-recognized expertise and achievements in the field of environment, ecology and relevant matters of pubic interest. Through its various sincere and devoted endeavors it has protected public interest against environmental anarchies and significantly contributed in promoting environmental justice through a serious of persistent and well-designed activities. There are many evidences of BELAs efforts to promote a healthy environment using legal mechanism as an effective legitimate tool.

3. That the Respondent No. 1 is the Ministry of Housing and Public Works responsible for drawing up and approval of the Master Plan for the City of Dhaka thus regulating urbanization activity in the City and is the line ministry of Respondent No. 2. The Respondent No. 2 is the Public Works Department sub-ordinate to Respondent No. 1 that has certain parks, udyans, playgrounds, gardens under its management and is responsible for maintaining some parks, udyans, playgrounds, gardens as identified in the Master Plan of the City. The respondent No. 3 is the Ministry of Environment and Forest (hereinafter referred to as MoEF) that has assumed all responsibilities regarding environmental protection and conservation since its creation in 1989 and is the line ministry of respondent no. 4. The respondent No. 4 is the Director General, Department of Environment (hereafter referred to as DoE) and is responsible for implementation of the Environment Conservation Act, 1995.

4. That the Respondent No. 5 is the Dhaka City Corporation created under the Dhaka City Corporation Ordinance, 1983 and is required to take measures to improve civic amenities including parks, playgrounds, udyans and gardens identified as such in its documents or the Master Plan and maintain the same. The Respondent No. 6, the Rajdhani Unnayan Kartipakhya (hereinafter referred to as RAJUK) established under the provisions of Town Improvement Act, 1953, is the principal authorizing and controlling agent for any building construction and development activity within the 1,528 sq. km area of Dhaka City and is responsible for implementing the Master Plan of the City. One of its key tasks is to undertake and execution of development projects like open spaces, parks, playfields, lakes, etc.

5. That the addresses of the parties for the purpose of communication and service of notices, summons and other documents are as given in the cause title.

6. That the environment and ecology of Bangladesh, more particularly in the urban areas, are being continuously endangered and threatened by various activities originating from both private and public sectors. The City of Dhaka is no exception to this where the dwellers are faced with horrible congestion and havoc of unplanned urbanization, affecting their legitimate rights to healthy environment and enjoyment of the open spaces for fresh breath and natural panorama for physical, mental and spiritual well being.

7. That the Town Improvement Act, 1953 required the Respondent No. 1 to prepare Master Plan for the City of Dhaka for planned urbanization of the township. While preparing the Master Plan, the said Act entrusted the Respondent No. 1 to make provisions for open spaces and provide the same for the enjoyment of the City dwellers.

8. That accordingly, the Master Plan of the Dhaka City (1995-2005) titled the Dhaka Metropolitan Development Plan (hereafter referred to as the said Plan) prepared by the Respondent No. 1 recommended a given area of the City for use as open space to be essentially free of structures that serves the purpose of visual relief and buffering from building and structural mass.

9. That the said Master Plan tends to define `open space` as including but not limiting to parks, playgrounds, play fields, botanical gardens, fountains, reflecting pools and other bodies of water, walkways and non-build able rights of the way.

10. That the Detailed Area Plan prepared for 13 spatial zone of the City under the Master Plan in accordance with Section 73 (2) of the Town Improvement Act, 1953 identified a few parks, udyans, playgrounds, gardens as open spaces where, a) no obstruction from its lowest level to the sky shall be created, b) it shall be at finish grade unless otherwise specified in the chapter, c) it shall not be used for parking maneuvering of vehicles, or storage of equipment or refuse. The udyans as identified in the said Plan include Sarwardi Udyan, Ramna Park, Shaheed Anwar Parks and Zia Udyan (popularly known as Chandrima Udyan) that are under the management of Respondent No. 2. Photocopy of the relevant portion of the said Plan is annexed herewith and marked as Annexure – `B`.

11. That in addition to the Master Plan, the Dhaka City Corporation Ordinance, 1983 duly emphasized on the role of open spaces in the City and entrusted the Respondent No. 5 with the responsibility of providing and maintaining open spaces, gardens and so on in the City. Two separate lists provided by the Respondent No. 5 show that the said respondent has under its management a total of 10 playgrounds and 58 parks within the Dhaka City. The lists naming the playgrounds and parks with location that are under the management of the Respondent No. 5 are annexed hereto and marked as Annexures – `C` and `C-1`.

12. That the newspapers have quite often been reporting on the miserable state of some of the open spaces including parks, udyans, gardens and playgrounds of the City. These reports have so far covered the poor state of management of the Osmani Udyan, Kawran Bazar Chirdren`s Park, Sayedabad Children`s Park, Zatrabari Park, Mirpur Children`s Park, Gulshan Park, Bahadur Shah Park, Botanical Garden, Boldha Garden, Sarwardi Udyan, Shaheed Anwara Park, Mohammadpur Shahid Park, Shishu Park near Hardeo Glass Factory at Hatkhola, Old City`s Nimtali Children`s Park, Ramna Park that are under the management of Respondent Nos. 2 and 5. The news clippings reporting on the condition of some of the open spaces including parks, udyans, gardens and playgrounds of the City are annexed hereto and marked as Annexures – `D`, `D-1`, `D-2`, `D-3`, `D-4`, `D-5`, `D-6`, `D-7`, `D-8`, `D-9`, `D-10`, `D-11`, `D-12`, `D-13`, `D-14`, `D-15`, `D-16`, `D-17`, `D-18`, `D-19`, `D-20`, `D-21`, `D-22`, `D-23`, `D-24`.

13. That the reports published in the national dailies on the miserable conditions of the open spaces report the use of children`s park in Kawran Bazar as vegetable wholesale market, (as of Annexures-`D-3 and `D-4`); park at Gulshan Section-1 as DCC cleaners` colony (as of Annexures-`D-8` and `D-9`); children`s park at Sayedabad as waste dumping spot, mini-bus stand, parking lot for trucks and rickshaw-vans, motor workshop and oil containers (as of Annexures-`D-5` and `D-6`); illegal encroachment of Osmani Udyan (as of Annexures-`D`, `D-1` and `D-2`) and so on.

14. That the parks and udyans under the management of Respondent No. 2 is in no better condition as the news reports verified by the Petitioner show that the Ramna, Sarwardi, Shaheed Anwara parks are now frequented by drug peddlers, vagabonds, muggers, floating sex workers, vendors and are no longer favoured by morning walkers or joggers (as of Annexures-`D-22`, `D-14`, `D-15`, `D-16` and `D-17`). Due to absence of maintenance, the greenery of Ramna Park and the unique appeal of the Boldha Garden are fast loosing charm ((as of Annexures-`D-22`, `D-12` and `D-13`).

15. That as suggested by the news reports the main reasons for such miserable state of the open spaces including parks, udyans, gardens and playgrounds remain to be encroachment, lack of proper maintenance, defacing of public property, unauthorized use and construction and so on. Despite such frequent reporting, the respondents have turned deaf ear to the plea of City dwellers and have failed to take effective measures in rectifying such mismanagement.

16. That following newspaper reporting, the petitioner undertook field level investigation that revealed the truthfulness of the reports. During the investigation, a good number of open spaces including parks, udyans, gardens and playgrounds of the City were found under illegal occupation while the rest being utilized for construction purposes in gross violation of Master Plan and relevant laws and regulations. Photographs of field investigation are annexed herewith and marked as `Annexure – E`.

17. That the present condition of these open spaces including parks, udyans, gardens and playgrounds are classic example of utter negligence by the public authorities in maintaining public property for public good and utility. As a result these open spaces are loosing their attraction and the very purposes of their creation, i.e., recreation and leisure. Despite extreme crisis for recreational facilities in the City that is home for about 10 million people, the City dwellers no longer plan to visit these open spaces for lack of security, maintenance, amenities and facilities.

18. That considering the ever-deteriorating condition of the open spaces including parks, playground, udyans, a law titled, … hereinafter referred to as the Open Space Protection Act, 2000) was enacted that prohibited non-interference with the nature of open spaces including parks, udyans, gardens and playgrounds within the City areas, district towns and urban municipal areas.

19. That the newspaper reports and the findings of the petitioner suggest that the provisions of the above law are yet to be attracted to accord required protection or maintenance to the open spaces that perhaps needs no evidence to anyone living in the City.

20. That the Petitioner humbly submits that the protection and improvement of environment are vital for the survival and well being of human beings. Open spaces form integral part of City planning and environment and that such spaces must be protected against degradation to ensure a healthy environment for the City dwellers and urban residents. It is the duty of the respondents to protect such civic amenities as part of their statutory obligation to save environment and protect public property for the best interest of the present and future generation.

21. That it is respectfully submitted that the regulatory regime and the legitimate interest of the City dwellers demand that negligence over maintenance of public open spaces including parks, udyans, gardens and play grounds be checked immediately and that the concerned authorities, in fulfilling their public and statutory duties, take urgent measures for protecting the same in the greater interest of the City dwellers.

22. That it is submitted that encroachment for construction purposes, unlawful utilization and use, non-maintenance of the open spaces of the City have all resulted in either total or partial change in the nature of these open spaces thus rendering these unfit for designated use as open space. Consequently, the City dwellers are deprived of their constitutional right to rest and recreation that the respondents have failed to guarantee.

23. That it is also submitted that in some cases the respondents authorise construction activities in open spaces that change the nature of such space. Such authorisation as given by the respondents sharply contrast with their statutory duty to provide and maintain public open spaces for recreation purposes and deprive the City dwellers of much needed relief from the havoc and pressure of urban life.

24. That it is humbly submitted that such failures by the respondents to maintain open spaces and protect those from unlawful use and utilization negate the constitutional fiat and spirit expressed in Articles 7 and 13 of the Constitution.

25. That it is submitted that taking plea of unclear demarcation of the open spaces, the respondents purport to unlawfully utilize part of open space for commercial or rent receiving purposes, thus changing the nature of the open space. To ensure that such deceptive actions of the respondents are regulated, it is essential that the entry and exit of all open spaces be marked with clear demarcation stating the exact land area of the respective one.

26. That it is submitted that the flagrant violation of the laws by the respondents undermines rule of law that jeopardise the fundamental rights of the city dwellers including the Petitioner as guaranteed under Articles 31 and 32 of the Constitution.

27. That after having undertaken field investigation and being satisfied about the truthfulness of the newspaper reports, the Petitioner served a notice demanding justice dated 5 March, 2002 requesting the Respondents to immediately take all such measures necessary for proper maintenance of the open spaces including parks, udyans, play grounds and gardens of the Dhaka City including the ones mentioned in the news clippings (as of Annexures-`D`, `D-1`, `D-2`, `D-3`, `D-4`, `D-5`, `D-6`, `D-7`, `D-8`, `D-9`, `D-10`, `D-11`, `D-12`, `D-13`, `D-14`, `D-15`, `D-16`, `D-17`, `D-18`, `D-19`, `D-20`, `D-21`, `D-22`, `D-23`, `D-24`). Photocopy of the said notice for Demand of Justice dated 5 March, 2002 as served by the petitioner is annexed hereto and marked as Annexure `F`.

28. That except the Law Officer of the Respondent No. 5 none of the respondents have replied to the said notice of the Petitioner. The reply given by the Law Officer vide letter dated 29 April, 2002 ref. No. 55/A have attached few documents/reports that largely support the allegations of the petitioner with regard to poor maintenance of open spaces. Photocopy of the said reply of the respondent No. 5 dated 29 April, 2002 is annexed hereto and marked as Annexure `G`.

29. That the petitioner, committed to the cause of environment and ecological protection, conservation and management files this application bona fide, in performance of public duty and in public interest and the relief sought for herein, if granted, shall be effective, efficacious and complete.

30. That the petitioner, being a public interest litigant and not being in possession of all original documents, begs permission from this Hon`ble Court to allow the filling of photocopies as Annexures.

31. That the petitioner, in the circumstances, being seriously aggrieved and having no other equally efficacious remedy provided by law, begs to move your Lordships under Article 102 of the Constitution of Bangladesh on, amongst others, the following:

GROUNDS

I. For that the respondents have failed to maintain the open spaces including the parks, Udyans, playgrounds, gardens of the City (as of Annexures `C` and `C-1`) and have thus failed to perform their statutory obligations that require them to provide and maintain such civic amenities for the interest, comfort, well-being and development of the City dwellers.

II. For that the encroachment of open spaces, lack of their proper maintenance and supply of facilities, defacing of public property of the open spaces, unauthorized use and construction of such spaces negate the statutory obligation of the respondents as laid down in `…’

III. For that due to such failures of the respondents, the rights of the petitioner and other City dwellers to sound environment, health, recreation are adversely affected for the protection of which appropriate direction from this Hon`ble Court is sought for.

IV. For that the unlawful acts of the respondents and their failure to enforce law and to perform their legal duties effectively have resulted in detrimental action and omission to the life, body and property of the petitioner and the City dwellers threatening their right to life guaranteed by Articles 31 and 32 of the Constitution respectively, and hence appropriate direction and order from this Hon`ble Court is necessary.

V. For that the Petitioner is seeking appropriate orders and directions from this Hon`ble Court to protect the environment of the City and thus uphold public interest, public health in performance of public duty under the law and the Constitution, and hence this application is submitted before this Hon`ble Court.

Wherefore it is most humbly prayed that your Lordships would graciously be pleased to:

a) Issue a Rule Nisi calling upon the respondents to show cause as to why they should not be directed to ensure proper maintenance and protection of open spaces of the City (as of Annexures – `C` and `C-1`) as required under the Town Improvement Act, 1953, the Dhaka City Corporation Ordinance, 1983 and the (Open Space Protection Act, 2000);

b) After perusing the cause, if any, shown and hearing the parties make the rule absolute;

c) Pending hearing of the Rule, pass an order directing the respondents to (i) complete, within two months, the process of demarcation of all open spaces (as of Annexures – `C` and `C-1`) protect these as envisaged under the Open Space Protection Act, 2000; (ii) develop, within six months from the date of the order, a time bound plan for development and maintenance of the open spaces as required under the Town Improvement Act, 1953 and the Dhaka City Corporation Ordinance, 1983; and (iii) implement the said plan within such time as may be fixed by this Hon`ble Court.

d) Pass an order requiring the Respondents, in particular respondents No. 2 and 5 to submit periodic reports of compliance stating the progress achieved in implementing the time-bound directions of this Hon`ble Court and/or require any other person, body or authority to monitor such progress and report in a manner to be determined by this Hon`ble Court;

e) Award costs in favour of the petitioner and against the respondents; and

f) Pass such other or further order or orders to which the petitioner is entitled in law and equity as Your Lordships may seem fit and proper.

And for this act of kindness your Petitioner as in duty bound shall ever pray.

A F F I D A V I T

I Syeda Rizwana Hasan, wife of Abu Baker Siddique of House No.9, Road No. 8, Dhanmondi, Dhaka, aged about 35 years, by faith Muslim, by occupation Lawyer, by Nationality Bangladeshi, do hereby solemnly affirm and say as follows:

1. That I am the Director (Programmes) and Member Executive Committee and Petitioner in this writ petition and fully conversant with the facts and circumstances of the case and competent swear this affidavit.

2. That the statements made herein above are true to the best of my knowledge and belief.

Prepared in my office.

(Md. Iqbal Kabir) (Syeda Rizwana Hasan)

Advocate Deponent
The deponent is known to me and identified by me.

(Md. Iqbal Kabir)
Advocate
Solemnly affirmed before
me by the said deponent
this the …. day of May,
2003 at a.m.
COMMISSIONER OF AFFIDAVITS
SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION, DHAKA.