District-Dhaka IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION)
WRIT PETITION NO. OF 1995 IN THE MATTER OF: An application under Article 102(1) (2)(a) of the Constitution of the People`s Republic of Bangladesh.
A N D IN THE MATTER OF: Articles 31 and 32 of the Constitution of the People`s Republic of Bangladesh.
A N D IN THE MATTER OF: A direction to be given upon the Respondents to perform their statutory public duties and functions for controlling environmental pollution created by motor vehicles and take effective measures to ensure the most appropriate mitigative measures, devices and methods to prevent further aggravation and danger to life and public health.
A N D IN THE MATTER OF: Enforcement of Fundamental Rights, the right to life, body and healthy environment against hazardous air pollution caused by the motor vehicles in the Dhaka City.
A N D IN THE MATTER OF: The Motor Vehicle Ordinance 1983, (Ordinance No. LV of 1983) and The Dhaka Metropolitan Police Ordinance 1976, (Ordinance No. III of 1976).
A N D IN THE MATTER OF : Dr. Mohiuddin Farooque, son of Late Hemayet Ahmed of House No. 47, Road No. 5, Dhanmondi Residential Area, P.S. Dhanmondi, Dhaka……..Petitioner.
V E R S U S-
1. Bangladesh, represented by The Secretary, Ministry of Communications, Govt. of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.
2. The Chairman, Bangladesh Road Transport Authority, Allen Bari, Old Airport Road, P.S. Tejgaon, Dhaka.
3. Bangladesh, represented by The Secretary, Ministry of Home Affairs, Govt. of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.
4. The Commissioner, Dhaka Metropolitan Police, 27, Park Avenue, P.S. Ramna, Dhaka.
5. Bangladesh, represented by The Secretary, Ministry of Environment and Forest, Govt. of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.
6. The Director General, Department of Environment, House No.2, Road No. 16, Dhanmondi R/A., P.S. Dhanmondi, Dhaka.
7. The Dhaka City Corporation, represented by its Mayor, Nagar Bhaban, P.S. Ramna, Dhaka.
8. Bangladesh, represented by The Secretary, Ministry of Health & Family Welfare, Govt. of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.
9. Bangladesh, represented by the Secretary, Ministry of Commerce, Govt. of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.
10. Bangladesh, represented by the Secretary, Ministry of Energy and Mineral Resources, Govt. of the People`s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka.
11. The Bangladesh Petroleum Corporation, represented by its Chairman, 1/D Agrabad C/A, Chittagong.
12. Bangladesh, represented by the Secretary, Ministry of Industries, Bangladesh Secretariat, P.S. Ramna, Dhaka.
13. The Bangladesh Standards and Testing Institution, represented by its Director General, 116/A Tejgaon Industrial Area, P.S. Tejgaon, Dhaka………Respondents. To Mr. Justice Muhammad Habibur Rahman, the Chief Justice of the Supreme Court of Bangladesh and his Companion Justices of the said Honorable Court.
The humble petition of the Petitioner above named most respectfully-
S H E W E T H :
1. That the Petitioner Dr. Mohiuddin Farooque is a citizen of Bangladesh by birth and has been permanently residing in Dhaka, Bangladesh and an Advocate of the Supreme Court of Bangladesh and the address given in the cause title is the correct address for service of notice.
2. That the Petitioner is a conscious and active public interest lawyer and the Secretary General of Bangladesh Environmental Lawyers Association (BELA), having proven, sincere, bona fide and dedicated records and experience in upholding the natural and human environment, human health and public interest for many years. The Petitioner has also founded and leading the progress of BELA as a well recognised and reputed institution in the said field, both home and abroad, and has moved several petitions on public interest in person and on behalf of BELA in the courts including this Hon`ble Court. The Petitioner, besides being a public interest lawyer, is also the father of two children aged about 6 and 1 and a half years old respectively, and permanently resident in Dhaka City.
3. That the Respondent No. 1 is the Ministry of Communication who has been entrusted with the responsibilities, amongst other, of administration of motor vehicles legislations, rules made there under throughout the country and is the line ministry of the Respondent No.2. The Respondent No.2 is Bangladesh Road Transport Authority (hereafter referred to as “BRTA”) created under the Motor Vehicles Ordinance, 1983 (Ordinance No.LV of 1983) for carrying out the functions as entrusted under the said Ordinance and the Respondent No. 1.
4. That the Respondent No. 3 is the Ministry of Home Affairs who is responsible, amongst other, for regulating the traffic of the country through its regular force and to enforce motor vehicle legislations, rules and other laws relating motor vehicles and pollution as appropriate, and the line Ministry of Respondent No.4. The Respondent No. 4 is the Dhaka Metropolitan Police created under the Dhaka Metropolitan Police Ordinance, 1976 (Ordinance No.III of 1976), which is empowered to adopt and enforce the appropriate laws on vehicular including those provided under the said Ordinance.
5. That the Respondent No.5 is the Ministry of Environment and Forest (hereafter referred to as “MOEF”) which has assumed all responsibilities regarding environmental protection and conservation since its creation in 1989 including the implementation of the National Environment Policy, 1992 and the Respondent No.6 representing the Department of Environment (hereafter referred to as “DOE”) which is the implementing body/agency of the Respondent No.5 and also the Environment Pollution Control Ordinance, 1977 (Ordinance No.XIII of 1977).
6. That the Respondent No.7 is the Dhaka City Corporation created under the Dhaka City Corporation Ordinance, 1983 (Ordinance No. XL of 1983) which is required to take measures to protect public health and regulation of vehicles within the Dhaka City.
7. That the Respondent No.8 is the Ministry of Health and Family Planning having overall responsibility to ensure safety to public health, prevention of smoke nuisance and other related matters.
8. That the Respondent No. 9 is the Ministry of Commerce, which is responsible for the control of all import and export including policies, and the regulation of internal commerce which includes regulation of the import of motor vehicles and the spare parts.
9. That the Respondent No.10 is the Ministry of Energy and Mineral Resources which is authorised to formulate policy relating to petroleum, ensure the enforcement of all laws on petroleum including the Petroleum Act, 1934 (Act No. XXX of 1934), and is the line Ministry of Respondent No.11. The Respondent No.11 is the Bangladesh Petroleum Corporation, which is a public statutory body created under the Bangladesh Petroleum Corporation Ordinance, 1976 (Ordinance No. LXXXVIII of 1976), entrusted by the said Ordinance to acquire, import, refine and process crude petroleum and regulate the quality of petroleum products and their marketing subject to the Bangladesh Petroleum Act, 1974 (Act No. LXIX of 1974).
10. That the Respondent No. 12 is the Ministry of Industries which is entrusted, amongst other, to take measures relating to Standards and quality control and matters relating to Bangladesh Standards and Testing Institution and is the line Ministry of the Respondent No. 13. Respondent No. 13 is the Bangladesh Standards and Testing Institution (hereafter referred to as “BSTI”) established under the Bangladesh Standards and Testing Institution Ordinance, 1985 (Ordinance No. XXXVII of 1985) for standardization, testing, metrology, quality control, grading and marking of goods.
11. That the environment and ecology of Bangladesh are being continuously endangered and threatened by various activities originating from private and public sources. Amongst the primary causes and sources of environmental degradation, pollution of natural resources on which the survival of life is dependent, e.g., air, water, soil etc. have exceeded the standards necessary to sustain life and livelihood contrary to statutory safeguards. Such grave contamination, amongst others, has been contributed directly by the emissions of hazardous smokes and noises in the air from faulty and unfit motor vehicles lacking road-worthiness as required by law. As a result, an unhealthy environment has been prevailing at many places. The problem of air pollution from faulty motor vehicles has been universally identified as a major threat to human body and life by various scientific research, studies, investigations, reports, surveys conducted by various persons, agencies/institutions, both national and international, and the agencies of the Government have highlighted the issue in their various reports and publications. Copies of the relevant portions of such findings and admissions are annexed herewith and marked as Annexure ” A ” series.
12. That the major cities of the country are exposed to innumerable environmental hazards many of which are typical to urban areas. The most threatening urban centre is Dhaka which is the Capital of the country and where the Petitioner resides with his family. Some of the environmental hazards of the City are quite acute and incompatible with the conditions required for the growth of human life and ecology. The lives of the dwellers of the Dhaka City including that of the Petitioner and his family and its environment are, inter alia, subjected to many threats and injuries that originate from human actions and omissions. Amongst those the air pollution, especially from the faulty motor vehicles, have choked the air of the Dhaka City exceeding all tolerable and acceptable limits causing serious health hazards and irreparable damage to the physical environment and ecology. Such violations and the consequences are clearly visible in the Dhaka City which need no evidence to anyone who has been to the City. The pollution from the motor vehicles have been the results of violations and non-compliance of the requirements of various laws and policies and the failures of the Respondents to enforce the regulatory provisions and to perform their duties in accordance with the laws and policies. Copies of news paper clippings and reports containing information of vehicular air pollution in Dhaka City are annexed herewith and marked as Annexure ” B ” series.
13. That the incessant use of high noise-making horns, like pneumatic horns by the trucks, buses, minibuses etc. and sounds from the faulty vehicular engines have filled the air of the Dhaka City totally disregarding laws and as an evidently flagrant violation of various regulatory prohibitions. Such excessive noise pollution are affecting the normal and safe life especially of the students, examinees, commercial establishments, offices, hospitals, clinics, educational institutions, the children and the sick etc. Children, aged and the sick are the worst victim. The noise pollution is more acute in some particular areas of the city disturbing the public peace creating public annoyance.
14. That being concerned about the severity of the vehicular pollution prevailing in the Dhaka City the Petitioner along with BELA conducted an investigation into the reports, publications and the regulatory system on vehicular air pollution and the possibilities of preventing the same.
15. That the emissions of hazardous smokes from unfit and faulty vehicles are creating threat to life and peace resulting in serious health hazards. Moreover, vehicles without fitness are causing various accidents costing thousands of human lives and bodily harm or disability every year. The fact that too many vehicles do not have any fitness certificate at all have been admitted and repeatedly stated in various forms. A statement of the Respondent No.6 submitted before the 19th Parliamentary Standing Committee on the Ministry of Environment and Forests held on 13th January, 1994 mentioned that only “25 per cent of the vehicles used for commercial purposes within Dhaka City have Fitness Certificate and the rest do not have any”. A recent press report suggested that the lack of fitness ensuring road-worthiness was the cause of about 20 per cent of the road accidents. The said report, quoting BRTA sources, mentioned that although 60 per cent vehicles have fitness, in reality 80 – 85 per cent vehicles have faulty engines or other defects because they emit smokes 300 per cent times more than the international standard. The report further stated that till 1993, 70,000 vehicles did not obtain any fitness certificate from the authority. Copies of statement submitted by the Respondent No.6 dated
13.01.94 and a Press clipping are annexed herewith and marked as Annexure ” C ” series.
16. That the investigation conducted by the Petitioner and BELA showed that the total number of on road vehicles till
1994 were 3,37,012 out of which the percentage of the type of vehicles were approximately Bus:4, Mini-Bus:3, Truck:9, Three Wheeler:10, Motor car:15, Jeep & Micro-Bus:8, Motor Cycle:48.6 and Others:2.40. Although the largest number of on road vehicle is Motor Cycles, they have been exempted by the Respondent Nos. 1 and 2 from the requirement of regular fitness certificate. Most of these motor cycles are driven by two-stroke engines and are polluters of hazardous smoke and also of disturbing noise.
17. That the investigation of the Petitioner and BELA also revealed that the number of motor vehicles that have come for fitness certificate till 1994 were 96,192 which indicate that, excluding the number of motor cycles, about 65,000 motor vehicles on road did not come to the BRTA for obtaining fitness certificate although they were required by law to do so or to surrender their certificate of registration or the “Blue Book” to the authority and no effective steps have been undertaken by the Respondent Nos. 1 to 6 to compel them to comply with the law.
18. That the issuance of certificate of fitness under the Motor Vehicle Ordinance, 1983, which is issued for one year, does not entitle a motor vehicle to ply on the road even if the same vehicle become unfit before the expiry of the said period, and in such cases the fitness of the said vehicle has to be cancelled by the authority.
19. That the current procedure of granting fitness by the Respondent No.2 is based on human judgement which is subject to error and corruption although the technology of ensuring fitness through automation is easily available and also cost effective and such measures have been adopted almost in every country.
20. That the investigation of the Petitioner and BELA further revealed that many of the vehicles used by the Respondents and other Government agencies including those of the Transport Pool do not have fitness certificate as per records. Some of these vehicles are hazardous polluters.
21. That the Respondent No.6, through the circulation of leaflets (Annexure “A-3″) recognized the fact and informed the people that the emissions of hazardous smokes from the unfit and faulty vehicles and use of high noise-making horns are punishable offenses and are very much injurious to health and particularly to pregnant women and children. Such threats to health are also telecasted time to time through the Bangladesh Television. A Press-release from the said Respondent published in the news paper asking vehicles without fitness to remain off the road also manifest the severity and admission of the fact of vehicular pollution. Copy of the newspaper clipping containing the Press release is annexed herewith and marked as Annexure ” D ” .
22. That the current status of the scenario clearly manifest that a large number of vehicles emitting hazardous smokes and using pneumatic and other high noise making audible signals have been plying in the Dhaka City under the Respondents nose defying the laws and policies, and the Respondents have failed to enforce the relevant laws, policies and standards in preventing the vehicular pollution of the country more particularly in the Dhaka city and hence have failed to perform their statutory duties and responsibilities resulting in serious health and environmental hazards.
23. That the degree and extent of vehicular pollution is further aggravated by the quality of petroleum products used by the vehicles containing various constituents which are too dangerous to health and may cause serious diseases like cancer etc. The quality of petroleum is further degraded through adulteration and adding of additives in it while carrying and refining. Besides other purposeful reasons, one factor of such contamination is caused by the oil tankers which carry all different types of petroleum products in the same container. The other qualitative issue is the lead-laced gas emitted because of the use of leaded petroleum severely affecting the lungs, liver, brain and the nervous system, resulting to high blood pressure, IQ and memory-retention damage among children and damage to foetuses leading to deformed babies. The high sulphur content in the petroleum, and hence in the smoke, causes severe damage to the ecology.
24. That to prevent hazardous emission of smokes from the vehicles, many countries have opted for lead-free petroleum. In October, 1994, the Indian Supreme Court has directed the Indian Government to supply lead-free petrol to four major cities by April, 1995. In this case the provision of the supply of environment friendly petroleum has been introduced through the intervention and direction from the Supreme Court.
A photocopy of the newspaper clipping on the case is annexed herewith and marked as Annexure ” E “.
25. That besides the introduction of lead free petrol and consequent to the same, in many countries, catalytic converters are being installed in the vehicles to catalyse the reaction between oxygen and the nitrogen oxides, carbon monoxide and the hydrocarbons to produce nitrogen gas, carbon dioxide and water vapour. The use of catalytic converters have proved to be cost effective and easily implementable particularly in countries which import rather than locally manufacture motor vehicles. It may be mentioned that lead-free petroleum is a precondition to the use of catalytic converter since lead compound inhibit its reactions by poisoning the catalysts. The catalysts work by possessing active sites at which the gases are “energised” into reactions which would otherwise occur only very slowly. The use of lead as an additive to petrol blocks these active sites thus preventing the promotion of the reaction.
26. That the degree of vehicular pollution in the Dhaka City areas has exceeded all limits and such concerns are being raised by public and private bodies and individuals repeatedly through the news papers and the State controlled electronic media of the country. Copies of news paper clippings containing such concerns are annexed herewith and marked as Annexure ” F ” series.
27. That the National Environment Policy, 1992 has also recognized the aspect of vehicular pollution as one of priorities and stated: “3.11.1 Ensure that the road, rail, aviation and inland water transport system do not pollute the environment or degrade the resources…3.11.2 Ensure that all the vehicles and the people using roads, rails, air and inland waterways do not get involved in activities leading to environmental pollution and to take up steps to protect health of the workers engaged in the vehicles.” The extent of such pollution has assumed such a grave proportion that the proposed Environment Conservation Bill, 1994, which has been approved by the Cabinet and is pending for placement before the Parliament, has incorporated a separate and specific provision in Section 6 only on this issue with higher penal sanction. The said Section states, ” Prohibition Regarding the Plying of Vehicles Emitting Smoke Hazardous to Environment — (1) The plying of vehicles which emit smoke hazardous to health or injurious to environment is prohibited…” (Translated from Bengali). In Section 15 of the said Bill, the maximum penalty for all offenses under the Bill which includes the vehicular pollution, has been specified as 5 years imprisonment or fine of taka 1 lac or both which is much higher than that provided under the Motor Vehicles Ordinance, 1983. Copies of the Environment Policy, 1992 and the Environment Conservation Bill, 1994 in Bengali are annexed hereto and marked as Annexure “G” series.
28. That all matters pertaining to motor vehicles including smoke and noise control, road-worthiness, etc are covered by various provisions of The Motor Vehicles Ordinance, 1983 (Ordinance No.LV of 1983), the Dhaka Metropolitan Police Ordinance, 1976 (Ordinance III of 1976), The Environment Pollution Control Ordinance, 1977 (Ordinance No.XIII of 1977), and the Dhaka City Corporation Ordinance, 1983 (Ordinance XL of 1983).
29. That the relevant provisions expressed in various Sections of The Motor Vehicles Ordinance, 1983 provides, inter alia, “43. Suspension of Registration — (1) If any registering authority or other prescribed authority has reason to believe that any motor vehicle within its jurisdiction:
(a) is in such condition that its use in a public place would constitute a danger to the public, or that it fails to comply with the requirements of Chapter VI [Construction, Equipment and Maintenance of Motor Vehicles] or of the regulations made thereunder, or (b)… or is being used without a valid certificate of fitness; ……….. suspend the certificate of registration of the vehicle….”……
44. Cancellation of registration – (1) If a motor vehicle has been destroyed or has been rendered permanently incapable of use, the owner shall within fourteen days … report the fact to the registering authority … and shall forward to the authority the certificate of registration of the vehicle together with any token or card issued to authorise the use of the vehicle in a public place, and shall simultaneously send a copy of the report to the authority which issued or last renewed the certificate of fitness.
(2) The registering authority shall … cancel the registration and the certificate of registration.
(3) Any registering authority may order the examination of a motor vehicle … and, if upon such examination … it is satisfied that the vehicle is in such a condition that it is incapable of being used or its use in a public place would constitute a danger to the public and that it is beyond reasonable repair, may cancel the registration of the vehicle.
47. Certificate of fitness of motor vehicle -(1) Subject to the provisions of section 48, no motor vehicle other than the motor vehicles as may be prescribed shall be deemed to be validly registered for the purpose of section 32, unless it carries of fitness in Form J as set forth in the First Schedule, issued by the Inspector of Motor Vehicles or any other prescribed authority, to the effect that the vehicles complies for the time being with all the requirements of Chapter VI and the rules made thereunder….
(4) Any Inspector of Motor Vehicles or other prescribed authority may cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Ordinance and or the rules or regulations made thereunder; and on such cancellation … the owner of such motor vehicle shall surrender to the registering authority… any token or card issued to authorise the use of the vehicles in a public place.
137. General provision for punishment of offence – Whoever contravenes any provision of this Ordinance or of any rules or regulations, made thereunder shall, if no other penalty is provided for the offence, be punishable with fine which may extend to two hundred taka, or, if having been previously convicted of any offence under this Ordinance he is again convicted of an offence under this Ordinance, with fine which may extend to four hundred taka….
139. Fitting and using of prohibited horns or other sound producing device – Whoever uses or being the owner or person in charge of motor vehicle fits, causes or allows fitting of any horns or any sound producing devices prohibited by any competent authority having jurisdiction over the area or prohibited under the provision of this Ordinance or any rules or regulations made thereunder or uses horn or any sound producing device where its use is prohibited shall be punishable with fine which may extend to one hundred taka….
150. Using of motor vehicles emitting smokes – (1) Whoever drives or causes or allows or lets out a motor vehicle for use in any public place, the smoke of which would constitute a health hazard, shall be punishable with fine which may extend to two hundred taka.
162. Power to detain vehicles used without certificate of registration or certificate of fitness or permit – Any police officer or any Inspector of Motor Vehicles authorised in this behalf or other person authorised in this behalf by the Authority may, if he has reason to believe that a motor vehicle … is being used … without the certificate of fitness … seize and detain the vehicle, and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle….”
30. That the Bengal Motor Vehicles Rules, 1940 prohibits the use of high noise making horns in Rule 114(b) which states as follows: “No motor vehicle shall be fitted with any multituned horn giving a succession of different notes or with any other sound producing device giving an unduly harsh shrill, loud, or alarming noise.”
31. That Sections 159 (Special procedure for trial of offenses), 160 (Power of arrest without warrant), 161 (Power of police office to impound document), 162 (Power to detain vehicles used without certificate of registration or certificate of fitness or permit), 163 (Power to charge certain offenders on the spot), 164 (Deprivation of driving licence) and 101 (Duty to produce licence and certificate of registration) of the Motor Vehicles Ordinance, 1983 empower police officers to take various monitoring, inspection, enforcement and penal measures against the violators of the provisions of the said Ordinance including those covering vehicular air pollution.
32. That in addition to those powers sanctioned by the Motor Vehicles Ordinance, 1983, the Dhaka Metropolitan Police Ordinance, 1976 provides, inter alia, ” 15. General Duties of Police Officers — It shall be the duty of the police officer …
c) to best of his ability to prevent the commission of public nuisances; ……..
f) to discharge such duties as are imposed upon him by any law for the time being in force.
16. Duties of police-officers towards the public and arrested persons — It shall be the duty of every police-officer —
……….g) to use his endeavours to avert any accident or danger to the public.
25. Power of Police Commissioner to make regulations —
(1) The Police Commissioner may make regulations, not inconsistent with any provision of this Ordinance, or -…..
g) licensing, controlling or, in order to prevent the obstruction, inconvenience or annoyance to the residents or passengers in the vicinity, prohibiting the playing of music, the beating of drums or other instruments and the blowing or sounding of horns or other noisy instruments in or near streets or public places;
27. Power of Police Commissioner and other police-officers to give directions to the public – The Police Commissioner or any police-officer authorized by him in this behalf, may, from time to time as occasion may arise, give all such direction, not inconsistent with regulation made under Section 25, either orally or in writing, as may be necessary to– …….
(e) regulate and control the playing of music or singing, the beating of drums and other instruments, and the blowing or sounding of horns or other noisy instruments, in or near any street or public place; 56. Penalty for contravention of regulations under section 25 – Whoever contravenes any regulation made under section 25 or any of the conditions of a licence or permission issued or granted under any such regulation shall be punishable with fine which may extend to two hundred taka. 57. Penalty for contravention of directions under section 27 – Whoever contravenes any direction given under section 27 shall be punishable with fine which may extend to five hundred taka.
33. That the relevant provisions of the Dhaka City Corporation Ordinance, 1983 provides, inter alia, “150. Offence – Every act or omission specified in the Third Schedule shall be an offence under this Ordinance. Third Schedule – 48. Playing of music or radio, beating a drum, blowing a horn or trumpet or beating or sounding any brass or other instrument or utensil in contravention of any general or special prohibition issued by the Corporation.
34. That the Environment Pollution Control Ordinance, 1977 defines, inter alia, ” Section 2 (a) ” Air ” means the discharge into the atmosphere of foreign gases, vapours, droplets and particles or of excessive amounts of normal constituents, such as the carbon dioxide and suspended particulate matters produced by burning of fossil fuels; …… (f) ” Environment ” means the surroundings consisting of air, water, soil, food, and shelter which can support or influence the growth of life of an individual or group of individuals, including all kinds of flora and fauna; (g) ” Pollution ” means such contamination, or other alteration of the physical, chemical or biological properties of any air, waters or soil, including changing temperature, taste, colour, turbidity, odour or any other characteristics of air, waters, soil or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any air, waters or soil as will, or is likely to, create a nuisance or render such air, waters or soil harmful, injurious, detrimental or disagreeable to public health, safety or welfare or to domestic, commercial, industrial, agricultural, recreational, or other bona fide uses, or to livestock, wild animals, bird, fish, plants or other forms of life;…”
Under the Sections 5, 6 and 7 of the said Ordinance the Board, Implementation Cell and the Director are empowered to formulate policies and implement measures for the control, prevention and abatement of pollution of the environment.
35. That the Petroleum Act, 1934, The Bangladesh Petroleum Act, 1974, the Bangladesh Petroleum Corporation Ordinance, 1976 and the Bangladesh Standards and Testing Institution Ordinance, 1985 entrust upon the Respondent Nos. 10, 11, 12 and 13 to regulate the quality of petroleum products from its importation to marketing.
36. That the Petroleum Act, 1934 provides various provisions on the regulation of petroleum. Section 3 states:
“(1) No one shall import, transport, store or distribute any petroleum save in accordance with the rules made under Section 4……
4. The Government may make rules —
…….b) regulating the import of petroleum; ……..k) prescribing the proportion in which any specified poisonous substance may be added to petroleum, and prohibiting the import, transport or storage of petroleum in which the proportion of any specified poisonous substance exceeds the prescribed proportion; l) regulating the distribution of petroleum; ……..p) generally, providing for any matter which in its opinion, is expedient for proper control over the import, transport, storage and distribution of petroleum.”
37. That the Bangladesh Petroleum Act, 1974 empowers the Government to make rules under Sections 3(3) and 11 to make appropriate rules, inter alia, for processing, refining and marketing of petroleum.
38. That the Bangladesh Petroleum Corporation Ordinance, 1976 provides in Section 6, amongst other, the following: “Functions of the Corporation — Subject to the provisions of the Petroleum Act, 1974 (LXIX of 1974), and this Ordinance, the functions of the Corporation shall be …….
a) to acquire, import crude petroleum and other refined petroleum products; b) to refine crude petroleum and manufacture of various grades of refined petroleum products; c) to set up refineries and ancillary facilities; d) to import lubricating oil, both in the form of base stock, necessary additives and other chemicals as well as finished products; ……….
p) to do such other acts and things as may be necessary for carrying out the purposes of this Ordinance.”
39. That the Bangladesh Standards and Testing Institution Ordinance, 1985 entrust the BSTI to, inter alia, “5. …a) to set up Bangladesh Standards of quality and dimensions and prepare and promote the general adoption of standards on national and international basis relating to materials, commodities, structures, practices and operations and, from time to time, to withdraw, revise, alter and amend the same; …………
d) to secure compliance with the Bangladesh Standards adopted by the Institution by the producers and users; ……….”.
40. That it is submitted that the air of the Dhaka City has been filled with smoke and noise pollutants from the motor vehicles plying on the roads defying the laws and policy and thereby endangering the lives of the City dwellers, visitors including the Petitioner.
41. That it is humbly submitted that the failures of the Respondents in the performance of their statutory and public duties have given rise to a serious concern of public interest and public health threatening the health of the people of the City, the Petitioner and the ecology.
42. That it is further submitted that inspite of the admitted fact that such vehicular pollution has special impact on the health of the children, the parents of the City including the Petitioner feels seriously aggrieved and concerned for failure of the authority in mitigating the same.
43. That it is submitted that the degree and gravity of vehicular pollution of the air in the Dhaka City and the existence of too many vehicles plying on the roads without proper fitness manifest the failure of the Respondent Nos. 1 to 4 in enforcing the Motor Vehicle Ordinance, 1983.
44. That it is submitted that the continuance of defective and polluting vehicles on the public roads and places projects the gross negligence of Respondent Nos. 1 to
4 in adopting appropriate subordinate legislative measures and in enforcing the Motor Vehicles Ordinance, 1983, Motor Vehicles Rules, 1940 and the Dhaka Metropolitan Police Ordinance, 1976 including their objectives and spirit.
45. That it is submitted that the exemption of motor cycles, which constitutes about 50% of vehicles on the road, from the requirement of fitness by the Respondent Nos.1 and 2 is reflective of unsound and arbitrary decision and such exemption should be withdrawn to mitigate the environmental pollution.
46. That it is submitted that the indiscriminate emissions of hazardous smokes and noise pollution from the motor vehicles are against the spirit and provisions of the Environment Pollution Control Ordinance, 1977 and the National Environment Policy, 1992 and the existence of such detrimental situation in the Dhaka city is a clear evidence of failure of the Respondent Nos.1 to 6 in performing their statutory and public duties.
47. That it is submitted that the uncertainty and absence of specific statutory environmental quality standards has also contributed in exacerbating the air pollution in the Dhaka City being detrimental to life and body and jeopardizing the right to life of the city dwellers including the Petitioner which is expressive of and utter failure on the parts of the Respondent Nos. 5, 6, 12 and 13 in the performance of their public duties in the service of the affairs of the Republic.
48. That it is submitted that the flagrant violation of the laws and policies by the vehicle owners and users right under the nose of the Respondents undermines the rule of law which has created a chaotic condition by hazardously polluting the environment of the Dhaka City, thus jeopardising the fundamental rights of the residents of and visitors to the Dhaka City including the Petitioner guaranteed under Articles 31 and 32 of the Constitution.
49. That it is submitted that the failures of the Respondents in performing their public duties under various laws and Article 21 of the Constitution has negated and run contradictory to the Fundamental Principles of State Policy as enshrined in Part II of the Constitution, e.g., the protection of public health stated in Article 18(1) which was required to be protected by the Respondent Nos.5,6,7 and 8.
50. That it is submitted that the problem of vehicular pollution is too acute in Dhaka City having 70 lacs population so densely situated within such a small area and hence, the degree, severity and consequence of pollution are getting worse requiring immediate mitigation, and the Respondents are also criminally liable under sections 166 and 268 of the Bangladesh Penal Code, 1860, and such criminality is also allowing the vehicle owners to commit offence under section 278 of the same Code.
51. That it is respectfully submitted that although the National Environment Policy, 1992 stated, “3.4.1. Reduce and discourage the use of environment polluting fuels and encourage the use of environmentally sound and less harmful fuels and energy sources”, and the laws on petroleum specified hereinabove empowers the Respondent Nos. 10 and 11 to ensure the said requirement of the Policy, no effort has been made to regulate the quality of petroleum especially to make the same “lead-free” and environmentally sound. It is further submitted that such measures have been adopted in many countries including the neighbouring countries, sometimes with the direction or intervention of the court, the Respondents have failed to take steps in this regard which is a gross negligence and non-performance of their public duty.
52. That it is submitted that the supply, distribution and marketing of degraded quality and adulterated petroleum products are gross failure of Respondent Nos. 11,
12 and 13 in the performance of their statutory and public duties which has put at stake the lives of the millions of the residents including the Petitioner and his family and the visitors of the Dhaka City and its ecology.
53. That it is submitted that the aggravation of the vehicular air pollution causing and aggravating the miseries and ailments of the residents of the City and subjecting the lives of the Petitioner and his family to such threats that demonstrate the failure of the Respondent Nos. 2, 5, 6, 9, 10, 11, 12 and 13 to provide environmentally sound petroleum and also require compulsory installation of catalytic converters with all the imported vehicles as necessary for implementing the National Environment Policy, 1992 and for achieving the purposes and spirit of the Motor Vehicles Ordinance, 1983, the Environment Pollution Control Ordinance, 1977 and for safeguarding the fundamental rights guaranteed under the Constitution.
54. That it is submitted that the mandatory use of catalytic converter has been introduced in many countries but the Respondents have failed to appreciate the cost-benefit of the same, and have not taken any initiative to introduce the same in Bangladesh inspite of the severity of the problem in the Dhaka City and have therefore failed to provide a safe and sound environment to support the healthy growth of lives of the City dwellers and visitors including that of the Petitioner and his family.
55. That it is also submitted that the Environment Policy, 1992 further provides, “3.15.2. Encourage necessary research and evolving of technology to ensure long term, sustainable and environmentally sound utilisation of all national resources in preservation and improvement of environment”, the Respondent No.10, 11, 12 and 13 have failed to perform their progressive statutory duties in pace with the development of human knowledge and technology.
56. That it is submitted that the Respondents No.12 and 13 have failed in their public and statutory duties to provide an environmentally sound Bangladesh Standard on petroleum specifying its constituents in line with national requirements and international standards.
57. That it is also submitted that the failures of the Respondents in preventing the causes and sources of air pollution specially from and through the motor vehicles frustrates the duty of Bangladesh to its citizens including the Petitioner and its commitment registered under various international conventions and instruments.
58. That the Petitioner is committed to the cause of environment protection, conservation and management and is duty bound to protect public property, perform public duty and uphold public interest as required to be performed under Article 21 of the Constitution.
59. That the Petitioner invokes the jurisdiction of this Hon`ble Court also under Article 44 of the Constitution to protect his fundamental rights and also with a view to promoting the public purposes enshrined in Part II of the Constitution which is the basis of the work of the Petitioner under Article 8, and also to perform his professional duty required under the Bangladesh Bar Council Canons of Professional Conduct and Etiquette.
60. That the Petitioner humbly invokes the jurisdiction of this Hon`ble Court for the protection and safety of the people living in the Dhaka City. The total population of the Dhaka City, directly, indirectly and causally, is facing the risk to their lives and health due to the aforesaid pollution. Because of the severe contamination of life supporting air with toxic and hazardous pollutants discharged from the defective motor vehicles, the risk of diseases like pneumonia, bronchitis, cancer of the lungs, emphysema, asthma, blood pressure etc is far higher and such a large number of population of the City which is about 70 lacs have been exposed to a great risk of life and health.
61. That the Respondents have failed in performing their statutory duties to take effective measures to control pollution discharged from the motor vehicles the number of which is increasing everyday, and hence, immediate and efficacious remedies are needed to protect lives of millions of people including that of the Petitioner.
62. That the defiance of law by the vehicular polluters have been caused not only by the failure of the Respondents to adopt effective measures and enforce the same but also for the fact that the penal provisions are too lenient and inefficacious and hence the situation have been continuing indiscriminately endangering the environment.
63. That the petitioner, being seriously concerned and aggrieved by the failures of the Respondents in the performance of their statutory obligations and the duties, issued a Notice of Demand for Justice on 17th July, 1994 calling upon the said Respondents for performing their statutory obligations under various laws and for informing the Petitioner about the measures undertaken, if any, within four weeks time. The Notice was served upon the Respondents by special messenger, but excepting the Respondent No.6 none of them replied to the same till date or have contradicted the alleged facts of the said Notice and the Respondents have failed to take any appropriate steps so far. Copy of the said Notice of Demand for Justice dated 17th July,1994 is annexed hereto and marked as Annexure ” H “.
64. That by a reply dated 1st October, 1994 addressed to the Petitioner the Respondent No.6 admitting the severity of the pollution and stated that there is no direct provision under the Environment Pollution Control Ordinance, 1977 to take any step by the Department of Environment to control pollution caused through the emissions of hazardous smokes and use of hydraulic horns by the vehicles although in the same letter they claimed to have prosecuted more than 14,000 violators. The Respondent No.6 further stated that as the said pollution was deteriorating due to the increase of number of vehicles everyday they were strongly thinking of making some suggestions before the Government to solve the problems. Recently the Minister for Communication also underlined the fact that the lack of co-ordination among the Respondent Nos.2,4 and 6 have frustrated the enforcement of law leading to unabated vehicular pollution. Copies of the reply of the Respondent No.6 and the newspaper clipping containing the statement of the Minister are annexed hereto and marked as Annexure ” I ” series.
65. That the failure of the Respondents to take effective measures under relevant laws, orders and policies to check pollution caused through the use of pneumatic horns and emission of hazardous smokes from unfit and not roadworthy vehicles have allowed pollution to be continued unabated and indiscriminately threatening people`s life, health and property and their legitimate rights and interest protected by law and the Constitution. 66. That it is of great interest of the nation and the public that the law, orders and other provisions of the law having bearing on environment protection, conservation and wise management as incorporated in various policies are complied with and the environment be protected from grave injuries or else in future neither any such polluters would pay any heed to such laws, bye-laws and policies nor would the agencies under statutory duty to enforce them would consider the duty as a responsibility, and as such an appropriate intervention of the judiciary is necessary.
67. That this application is filed bona fide in public interest and the reliefs sought for herein, if granted, shall be effective, efficacious and complete.
68. That the addresses of the parties given in the cause title are correct addresses for the service of notice upon them.
69. 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: G R O U N D S I. For that the right to life, body and protection of law as guaranteed under the Constitution has been violated and threatened by negligence and misfeasance on the part of the Respondents who have failed to perform their duties and obligation under the law.
II. For that as per provisions of the Motor Vehicles Ordinance, 1983 (Ordinance No.XV of 1983), the Dhaka Metropolitan Police Ordinance, 1976 (Ordinance No.III of 1976) and the Dhaka City Corporation Ordinance, 1983 (Ordinance No.XL of 1983) the Respondent Nos.1 to 7 have totally failed to implement and perform their legal obligation bestowed upon them by the said laws.
III. For that the failure of the Respondent Nos.1 to 4 in enforcing the provisions of the Motor Vehicles Ordinance, 1983 and the Dhaka Metropolitan Police Ordinance, 1976 has resulted in hazardous vehicular air pollution endangering the lives and ecology of the Dhaka City and of its dwellers.
IV. For that as per provisions of the Environment Pollution Control Ordinance, 1977 (Ordinance No.XIII of 1977) the Respondent Nos.5 and 6 have failed to implement and perform their legal obligation bestowed to them by the said law for protecting and ensuring a safe environment to support growth of life as was required by the law.
V. For that the Respondent Nos. 1 to 7 owe statutory and also public duties to the Petitioner as well as to the entire residents and visitors of the Dhaka City to protect and conserve pollution free non-hazardous air quality by ensuring that no polluting vehicles ply on the roads of the Dhaka City.
VI. For that the plying of thousands of vehicles on road without fitness certificate clearly proves the failure of the Respondent Nos.1 to 4 to enforce the provisions of the Motor Vehicle Ordinance, 1983 and the Dhaka Metropolitan Ordinance, 1976 which has resulted in severe air pollution threatening the health, body and life of the Petitioner and those of the City dwellers as guaranteed under the Constitution.
VII. For that the gross negligence and failure of the Respondent Nos.1 to 6 in the performance of their statutory and public duties have allowed polluting motor vehicles to continue their pollution being on road endangering the lives of the millions, against public interest and public health, and hence a mandatory injunction from this Hon`ble Court is called for to protect the right of the citizens under the Constitution by asking the Respondents to immediately ensure that all polluting vehicles are taken off the roads.
VIII. For that the defiance of polluting vehicles showing thumb to the authorities is also reflective of inefficacy of the law, failure of the Respondents in adopting appropriate provisions exercising the sub-ordinate legislative power to stand to the need of the time and the leniency in penal sanction in addressing such a grave threat to human life and ecology and hence appropriate directions including a mandatory injunction from this Hon`ble Court is earnestly sought for ensuring immediate withdrawal of the vehicles from the road by the Respondent Nos.2, 4 and 6.
IX. For that the failure of the Respondents in the performance of their statutory and public duties having special severe impact on the children and pregnant women needs immediate prevention, and hence a mandatory injunction from this Hon`ble Court to remove all polluting vehicles urgently from the roads of the Dhaka City is sought for saving the future generation of the country.
X. For that the Respondent Nos.1 and 2 have acted arbitrarily, irrationally and incompatibly by exempting the Motor Cycles from the requirement of fitness certificate under the Motor Vehicle Ordinance, 1983 which has exacerbated the level of vehicular air pollution in the Dhaka City and hence an appropriate direction is required by this Hon`ble Court to require the motor cycles to obtain regular certificate of fitness. XI. For that the prevailing environmental condition of the Dhaka City is an evidence of the failure of the Respondent No.8 in its public duty to protect public health which has endangered public health and public interest.
XII. For that the aggravation of air pollution by degraded and adulterated quality of petroleum including distribution of leaded petroleum proves the negligence of the Respondent Nos.5,6,10,11,12 and 13 in performing their respective duties under the Petroleum Act, 1934, the Bangladesh Petroleum Act, 1974, the Petroleum Corporation Ordinance, 1976, the Environment Pollution Control Ordinance, 1977 and the National Environment Policy, 1992 and hence an appropriate direction from this Hon`ble Court to ensure supply of environmentally sound quality of petroleum is required.
XIII. For that the Respondent Nos.5,6,10,11,12 and 13 have failed to provide Bangladesh Standard of petroleum to implement the National Environment Policy,
1992 and the purposes of other laws mentioned hereinabove which has aggravated the air pollution through motor vehicles and hence an appropriate direction to provide Bangladesh Standard to ensure the supply of unleaded petrol to all the “filling stations” within the Dhaka City is required from this Hon`ble Court. XIV. For that it is essential for mitigating further aggravation of air pollution from the motor vehicles to direct the Respondent Nos.1,5 and 9 to ensure that all imported vehicles be fitted with “catalytic converter” and for which an appropriate direction is called for.
XV. For that the Respondent Nos.1 and 2 have failed to certify proper fitness to the vehicles which require installation and use of automation technology and hence an appropriate direction for installation of the same or adoption of sound measures to ensure correct fitness is required from this Hon`ble Court.
XVI. For that the Respondents and each one of them jointly and severally failed to take reasonable care to maintain proper and adequate monitoring mechanism over all the vehicles that ply on the roads to control air pollution.
XVII. For that the Respondents have miserably failed to perform their legal obligation in not protecting and controlling pollution caused due to the emissions of hazardous smokes from the faulty motor vehicles and thereby endangered life and health of the public including the Petitioner.
XVIII. For that the Respondents have miserably failed to perform their legal obligation in not protecting and controlling pollution caused due to the use of pneumatic or other high noise making audible signalling devices used by the various motor vehicles and thereby affecting the peace, health and life of the Petitioner and those of other residents.
XIX. For that the use of the horns giving unduly harsh shrill, loud or alarming noise flagrantly violating the Motor Vehicle Ordinance, 1983, the Bengal Motor Vehicle Rules, 1940, the Dhaka Metropolitan Police Ordinance, 1976, the Dhaka City Corporation Ordinance, 1983 and the Environment Pollution Control Ordinance, 1977, has caused noise pollution adversely affecting the peace, security and life of the people including the Petitioner although Respondent Nos. 1 to 7 were duty bound to prevent the same and the said Respondents having failed to enforce the law an appropriate direction for performance of their respective duties is called for. XX. For that the owners and users of the polluting motor vehicles are guilty of various offenses defined in the laws quoted hereinabove and also under section 278 of the Bangladesh Penal Code and the Respondents are also criminally liable under sections 166 and 268 of the same Code since their illegal omissions and negligence have abated such violations resulting in environmental hazards dangerous to the life and peace of the people including the Petitioner, and the Respondents have legal duty to remove, control and prevent such pollution immediately, and to prevent further abuse of the rights of the people appropriate directions from this Hon`ble Court are required.
XXI. For that the Respondents have failed to discharge their statutory duties and to take any lawful action and to prosecute persons and seize the faulty vehicles that are polluting the environment by using the prohibited horns and emitting hazardous smokes with diligence and adequate care.
XXII. For that the Respondents and each one of them, have been negligent and are in gross violation of their statutory and public duties in carrying forward the Fundamental Principles of State Policy incorporated in Part II of the Constitution especially Articles 8, 18 and 21, and such failure has led to the denial of fundamental rights of the citizens including the Petitioner and the members of his family, and hence appropriate directions from this Hon`ble Court is called for.
XXIII. For that the indiscriminate emissions of hazardous smokes and noise pollution from the motor vehicles are against the spirit and provisions of the Environment Pollution Control Ordinance, 1977 and the National Environment Policy, 1992 and the existence of such detrimental situation in the Dhaka city is a clear evidence of failure of the Respondent Nos.1 to 6 in performing their statutory and public duties, and hence an appropriate direction from this Hon`ble Court is necessary. XXIV. For that the gross negligence and failures of the Respondents in the performance of their statutory and public duties have resulted in acts and omissions detrimental to the life and body of the petitioner and other City dwellers including the right to life guaranteed by Articles 31 and 32 of the Constitution, and hence appropriate directions from this Hon`ble Court is necessary.
XXV. For that the Petitioner is seeking directions from this Hon`ble Court not only to protect his fundamental rights but also to protect the environment to uphold public interest, public health and for judicial assistance in performing his public duty under Articles 8 and 21 of the Constitution, and hence this application is submitted before this Hon`ble Court. WHEREFORE, it is most humbly prayed that your Lordships would be graciously pleased to :
a) Issue a Rule Nisi asking the Respondents to show cause as to why they should not be directed to do the following:
i) take all adequate and effective measures to check pollution caused due to the emissions of hazardous smokes from motor vehicles and the use of audible signalling devices giving unduly harsh, shrill, loud or alarming noise; ii) ensure that the exemption of Motor Cycles from the requirement of certificate of fitness under the Motor Vehicle Ordinance, 1983 be withdrawn immediately; iii) adopt and install appropriate technology for providing correct certificate of fitness; iv) set Bangladesh Standard for petroleum ensuring the reduction and removal of toxic and hazardous constituents from the same; v) provide lead free and un adulterated petroleum to all the petroleum filling stations within the Dhaka City; vi) require all the imported motor vehicles to be fitted with catalytic converters; b) Make the Rule absolute after perusing the cause, if any, shown and hearing the parties; c) Pass an interim order, pending hearing of the Rule, directing Respondent Nos. 2, 4 and 6 by way of a mandatory injunction to ensure that no hazardous smoke emitting and noise polluting motor vehicle plies on the roads within the Dhaka City within 30 days from the date of the order of the Hon`ble Court; d) Pass an order so that the Respondents submit periodic reports stating the progress in the implementation of the direction to ensure compliance within the binding time-frame for compliance or require any other person, body or authority to monitor the progress and report accordingly as would be determined by this Hon`ble Court; e) Pass such other and necessary and ancillary orders as may be deemed fit and proper and appropriate to enforce the fundamental rights and rights contained under the law; f) Direct the Respondents to bear all costs incidental to the application; g) Any other or further relief or reliefs to which the Petitioner is entitled in law and equity be also granted.
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, Dr. Mohiuddin Farooque son of Late Hemayet Ahmed of House No.47, Road No.5, Dhanmondi Residential Area, P.S. Dhanmondi, Dhaka, aged about 39 years, by faith Muslim, by profession Lawyer, by nationality Bangladeshi, do hereby solemnly affirm and say as follows :
1. That I am the Petitioner of this Writ Petition and as such I am fully conversant with the facts and circumstances of the case and competent to swear this affidavit.
2. That the statements made herein above are true to the best of my knowledge and belief.
Prepared in my office.
(Dr. Mohiuddin Farooque) (Dr. Mohiuddin Farooque) Advocate. D E P O N E N T The deponent is known to me and identified by me.
Solemnly affirmed before me (Mirza Quamrul Hasan)
by the said deponent on this Advocate. the February, 1995 at a.m. COMMISSIONER OF AFFIDAVITS, SUPREME COURT OF BANGLADESH, HIGH COURT DIVISION, DHAKA.