LEX/BDAD/0253/2010

Equivalent Citation: 9ADC (2012)816

IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)

Civil Appeal No. 200 of 2004
Decided On: 08.11.2010
Appellants: Syeda Rizwana Hasan
Vs.
Respondent: Bangladesh and Ors.
Hon'ble Judges:
A.B.M. Khairul Haque, C.J., Muzammel Hossain and Surendra Kumar Sinha, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Fida M. Kamal, Senior Advocate instructed by Nahid
Sultana, Advocate-on-Record
For Respondents/Defendant: Morad Reza, Additional Attorney General instructed by
Sufia Khatun, Advocate-on-Record
JUDGMENT
Surendra Kumar Sinha, J.
1 . Leave granted. Appellant, the Bangladesh Environmental Lawyers Association,
(BELA) questioned the propriety of the implementation of partly revised lay out plan
on the bank of lake adjacent to Road No. 20, Sector-3, the Uttara Model Town (UMT)
by a writ petition in the High Court Division. It's claim is that it has been active since
1992 as one of the organizations with expertise in the regulatory field of environment
and ecology. Since its inception BELA has undertaken a large number of public
interest litigations (PIL) and to promote in creating public awareness for the safe and
sound environment and to establish a sound ecological order. The writ respondent
No. 2, the Rajdhani Unnayan Kartipakka ("RAJUK") has been authorized and entrusted
with the responsibilities, among others, to adopt Master Plan, allot plots, approve
building constructions, create recreational and other civic facilities, infrastructure
plans for the Dhaka City. The UMT situated at both sides of Dhaka-Tongi highway
adjoining the International Airport was developed as a Model Town for residential
purposes in the early 1980 by the writ respondent No. 2. Since the creation of the
UMT, its inhabitants have been enjoying the calm and pacifying flow of a water body
through the heart of the township popularly known as "Uttara Lake". While preparing
the Master Plan of the UMT by the writ respondent No. 2, this water body was kept to
be viewed and purposes of a lake as an essential environmental component. A part of
the water body has its flow by the side of Road No. 20 in Sector-3 of UMT. The
lakeside or bank adjacent to Road No. 20 is a narrow strip of land and was left by the
writ respondent No. 2 in the original Master Plan as space for developing Park to
enhance the view and purpose of the water body as lake.
2. The writ respondent No. 2 has adopted a revised layout plan for Sector-3. In this
layout plan the narrow strip of the lakeside land adjacent to Road No. 20 be filled up
and plots be reclaimed and allotted thereafter to new allottees for construction of
residence. At the same time, the southern side of the lake would also be filled up for

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 constructing a new Road No. 22 and connecting it to Road No. 20. The writ
respondent No. 2 has already initiated the process to implement the layout plan and
has started allotting plots on the lakeside land deviating from the original Master
Plan. The reclamation and allocation of the plots on lake side has created wide
dissatisfaction amongst the inhabitants of the UMT in general and more particularly
the nearby residents who made several representations to the appropriate authorities
and agencies including the respondent Nos. 2 and 3, the Department of Environments
for taking effective measures against such unlawful, irregular, environmentally
hazardous and arbitrary decision and action of the said writ respondents. In response
to the appeal of the residents of the UMT, the writ respondent No. 3 conducted
investigation in the said area and submitted its report dated 3 September, 1996
which is supportive of the allegations of the residents. The said report has recorded
the fact of deviation from the original Master Plan and factually supported the
concern of the inhabitants with regard to degradation and pollution of environment in
case part of the lake was filled up for allocation on the vacant land of a part of the
lakeside shown as Park in the original Master Plan. The respondent No. 3 vide its
letter dated 23 September, 1996 suggested the Ministry of Environment and Forest
(MoEF) for requesting respondent Nos. 1, the Ministry of Housing and Works, and the
respondent No. 2 for developing the UMT without disturbing the natural environment
of the lake.
3 . Accordingly, the Ministry by its letter dated 13 October, 1996 conveyed the
findings and requested not to disturb the natural environment of the lake by their
proposed allocation. The writ respondent No. 2 in pursuance of the impugned layout
plan, has been allotting new plots for the purposes of housing constructions. The
original Master Plan shows that the Road No. 20 is about 20 feet in width having
building line on one side and lake on the other side while all other roads of the UMT
are 40-60 feet in width having lessees on both sides. This also indicated that while
drawing the Master Plan, there was no plan to develop the lake side for any purposes
other than to maintain a natural water body with further greening of the site.
4 . Accordingly, the lessees of the road side adjoining the lake have designed their
houses and have been living with the benefit of the excellent lake-view. The
allotment of plot on the lake side would render the area as a congested one adversely
affecting the residential trait of the UMT and will add to another example of disaster
by unplanned development with questionable motives. The residents of the UMT
being seriously aggrieved by the aforesaid unlawful acts of the said respondents
appealed to the writ petitioner for appropriate legal assistance. After conducting
necessary field investigation, scrutinizing relevant papers and analysing laws, the
writ petitioner, being satisfied with the truth of the allegations issued a notice
demanding justice on 23 October, 1996, on the writ respondents requesting them to
cancel, abandon the implementation of the revised layout plan immediately in the
greater interest of the public and the natural environment of the lake and the
adjoining areas. But none of the writ respondents have replied to the notice till date.
5. Writ respondent No. 4, a private person individually contested the Rule by filing an
affidavit-in-opposition denying the allegations made in the writ-petition. It was
claimed that the revision of the layout plan was done in accordance with law and that
the layout plan was revised for creating additional plots which is a continuation of
the earlier plan for the purpose of accommodation, and this creation of plots would
not involve environmental risk.
6 . The High Court Division upon hearing the parties observed that there is no

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 evidence or material with regard to filling up the lake in any way, that the amenities
such as park, play ground, school, mosque etc. are clearly marked in the layout plan,
that the open space in front of Road No. 20 does not appear to have been marked for
any such purpose, that the benefit of the open space in front of the lessees was a
momentary fortuitous benefit which has been taken away for the greater benefit of
the community at large and that the views taken by this Division in Chairman, RAJUK
and other vs. Parvin Akter, 7 BLC(AD) 167 are applicable in the case.
7 . Before we enter into the merit of the case, we would like to dispose of a
preliminary point raised by the learned Additional Attorney General about the
maintainability of the writ petition. According to the learned Additional Attorney
General, the writ petitioner is not a 'person aggrieved' within the meaning of Article
102 of the Constitution; the writ petitioner was representing well-to-do citizens, who
are allottees of UMT capable of establishing their rights, and thus, a PIL on their
behalf for alleged public injury or invasion of the fundamental rights is foreign to the
jurisprudential concept.
8 . It is pertinent to mention here that one Mahmuda Parveen filed writ petition No.
5121 of 1996 claiming as lessee of a plot in the vicinity of Road No. 20 of UMT on
the ground that the creation of new plots on the western edge of the lake is outside
the layout plan and that would" block cross-ventilation between each of the plots
allowing common passage of air and light to pass easily. No other allottees of the
vicinity challenged legality of the implementation of the revised layout plan
supporting the claim of Mahmuda Parvin other than the writ petitioner who claimed
that the residents being seriously aggrieved by the alleged unlawful acts appealed to
it for appropriate legal assistance. Said Mahmuda Parveen, however, accepted the
judgment of the High Court Division and did not challenge it in this Division.
9. In this sub-continent the concept of PIL has been developed in India in 1970 for
vindicating the interest of common people to protect their fundamental rights and
other related rights who are socially and economically disadvantaged, not conscious
to their basic rights, even if they are conscious but due to paucity of their ability they
could not vindicate their rights and unable to seek legal redress to the Court of law.
Bhagwati, J. in Hussaina Khatoon V. state of Bihar, AIR 1979 S.C. 1369 followed by
Khatri v. state of Bihar, AIR 1981 S.C. 928 with an innovative mind had handed down
monumental decisions which had a tremendous impact on the lives and liberty of the
people and had opened up the concept of PIL a term used to mean actions filed by a
member of the public to protect the human rights of those disadvantaged sections
who could not afford to move the High Court. The High Courts extended its' arms so
as to secure justice for the poor and weaker sections of the community who are not
in a position to protect their own interests. It is in that sense litigation in the interest
of the public. This type of litigation was invoked almost for the weaker sections of
people and in areas where there was violation of human rights under Article 21 of the
Constitution of India, which provision is in verbatim with Article 32 of our
Constitution which provides 'No person shall be deprived of life or personal liberty
save in accordance with law."
10. With the passage of time, the Indian High Courts and the Supreme Court by their
pronouncements expanded the philosophy towards various dimensions, entertained
petitions, extended and exercised jurisdiction in respect of:
a) Where the concerns underlying a petition are not individualist but are
shared widely lay a large number of people (women, Children or bonded

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 labour);
b) Where judicial law making is necessary to avoid exploitation such as
inter-country adoption, the education of the children of the prostitutes;
c) Where judicial intervention is necessary for the protection of the sanctity
of democratic institutions-independence of judiciary, existence of grievances
redressal forums; and
d) Where administrative decision related to development are harmful to the
resources such as air or water.
1 1 . In BRAC vs. Professor Mozaffar Ahmed, 54 DLR (AD) 36, Professor Mozaffar
Ahmed, an economist, questioned the validity of a certificate of no objection issued
by the Bangladesh Bank for the incorporation of BRAC Bank Limited by Bangladesh
Rural Advancement Committee in the High Court Division in the nature of PIL. The
High Court Division made the rule absolute. On appeal, this Division interfered with
the judgment of the High Court Division on the ground of the writ petitioner's locus-
standi to maintain the writ petition. M. Amin Chowdhury, CJ. Speaking for the
majority argued that the writ petitioner did not mention that how less fortunate
people are being protected in moving the High Court Division and also did not move
on behalf of other less fortunate persons of the society who had no source or means
to invoke writ jurisdiction. Learned Chief Justice concluded his argument observing
as under:
"So, the petitioner can not move the High Court Division under Article 102 of
the Constitution to protect the interest of the so-called less fortunate people
in the society."
1 2 . In Dr. Mohiuddin Farooque vs. Bangladesh, 49 DLR (AD), Mostafa Kamal, J.
argued on the point of 'person aggrieved' within the meaning of Article 102. It is
stated that when a public injury or public wrong or infraction of a fundamental
affecting an in terminate number of people is involved, it is not necessary, in the
scheme of our Constitution, the multitude of individuals who has been collectively
wronged or whose collective fundamental rights have been invaded are to invoke the
jurisdiction under Article 102 in a multitude individual writ petitions each
representing his own portion of concern. In so far as it concerns public wrong or
public injury or invasion of fundamental rights of an in terminate number of people,
any member of the public, suffering the common injury or common invasion in
common with others, espousing that particular cause is a person aggrieved. It is
further argued:
"If he espouses a purely individual cause, he is a person aggrieved if his own
interests are affected. If he espouses a public cause involving public wrong
or public injury, he need not personally affected. The public wrong or injury
is very much a primary concern of the Supreme Court which in the scheme of
our Constitution is a Constitutional vehicle for exercising the judicial power
of the people."
13. B.B. Ray Chowdhury, J. while endorsing those arguments added as under:
"In this backdrop the meaning of the expression "person aggrieved"
occurring in the aforesaid clauses (1) and (2)(a) of Article 102 is to be
understood and not in an isolated manner. It cannot be conceived that its

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 interpretation should be purged of the spirit of the Constitution as clearly
indicated in the Preamble and other provisions of our Constitution, as
discussed above. It is unthinkable that the framers of the Constitution had in
their mind that the grievances of millions of our people should go
unrepressed, merely because they are unable to reach the doors of the court
owing to abject poverty, illiteracy, ignorance and disadvantaged condition. It
could never have been the intention of the framers of the Constitution to
outclass them. In such harrowing conditions of our people in general if
socially conscious and public-spirited persons are not allowed to approach
the court on behalf of the public or a section thereof for enforcement of their
rights the very scheme of the Constitution will be frustrated. The inescapable
conclusion, therefore, is that the expression 'person aggrieved" means not
only any person who is not only any person who is personally aggrieved but
also one whose heart bleeds for his less fortunate fellow beings for a wrong
done by the Government or a local authority in not fulfilling its constitutional
or statutory obligations. It does not, however, extend to a person who is an
interloper and interferes with things which do not concern him. This
approach is in keeping with the constitutional principles that are being
evolved in the recent times in different countries."
1 4 . In BALCO Employees Union (Regd) V. Union of India, 2001 AIR SCW 5135
Kirpal, J. in his speech argued:
"It will seen that whenever the Court has interfered and given direction while
entertaining PIL it has mainly been where there has been an element of
violation of Article 21 or of human rights or where litigation has been
initiated for the benefit of the poor and the under privileged who are unable
to come to Court due to some disadvantage. In those cases also it is the
legal rights which are secured by the Courts. We may, however, add that
Public Interest Litigation was not meant to be a weapon to challenge the
financial or economic decisions which are taken by the Government in
exercise of their administrative power. No doubt a person personally
aggrieved by any such decision, which he regards as illegal, can impugn the
same in a Court of law, but, a Public Interest Litigation at the behest of a
stranger ought not to be entertained. Such a litigation per se be on behalf of
the poor and downtrodden, unless the Court is satisfied that there has been
violation of Article 21 and the persons adversely affected are unable to
approach the Court."
15. Recently we have noticed that there is a tendency of filing petitions in the nature
of PIL and the High Court Division has been entertaining such petitions without
satisfying the criteria for entertaining such petitions and making interim orders
preventing the Government or the local authority in undertaking development works
of the country. It is also seen that after filing petitions, the lawyers are pretending to
propagate to the electric and print media focusing to the orders of the Court, the
motive is discernible which is deprecated.
16. In S.P. Gupta v. Union of India, 1981 (Supp) SCC 87 Bhagwati J. observed:
"But we must be careful to see that the member of the public, who
approaches the Court in cases of this kind, is acting bonafide and not for
personal gain or private profit or political motivation or other oblique
consideration. The Court must not allow its process to be abused by

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 politicians and others to delay legitimate administrative action or to gain a
political objective. It is also necessary for the Court to bear in mind that
there is a vital distinction between locus-standi and justifiability and it is not
every default on the part of the state or a public authority that is justifiable.
The court must take care to see that it does not overstep the limits of its
judicial function and trespass into areas which are reserved to the Executive
and the Legislative by the Constitution. It is a fascinating exercise for the
Court to deal with public interest litigation because it is a new jurisprudence
which the Court is evolving a jurisprudence which demands judicial
statesmanship and high creative ability."
17. In Janata Dal v. H.S. Chowdhury, (1992) 4 SCC 305, the above views have been
reaffirmed in the following language:
"It is thus clear that only a person acting bonafide and having sufficient
interest in the proceedings of PIL will alone have a locus standi and can
approach the Court to wipe out the tears of the poor and needy, suffering
from violation of their fundamental rights, but not a person for personal gain
or private profit or political motive or any oblique consideration. Similarly a
vexatious petition under the colour of PIL brought before the Court for
vindicating any personal grievances, deserves rejection at the threshold."
18. Petitions of the nature are being filed at random and a sense of feeling at one
time has been developed that the fitting of PIL is not regarded to become 'Publicity
Interest Litigation' or 'Private Interest Litigation'. The PIL, initially disapproved by
judges with traditional Rent of mind had over the years grown into unmanageable
proportions opening up flood gates of litigation - some quite legitimate whilst some
were nothing more than sheer abuse of judicial process. Thus there is no gainsaying
that the Public Interest Litigation' was essentially meant to protect basic human rights
of the disadvantaged section of citizens and a jurisprudence which has been
innovated where a public spirited person or organization like NGO invokes the
jurisdiction of the Court on behalf of such persons, who by reason of poverty, lack of
education, helplessness, social disabilities or economic paucity can not seek legal
redress for the violation of his rights, fundamental or legal in the Court of law. There
is, thus, need to reemphasize the parameters within which the High Court Division
should extend its jurisdiction. The High Court Division should guard to see that its'
processes are not abused by any person or lawyer and exercises its jurisdiction
sparingly.
19. Now the point to be considered is the parameter of exercising the discretion. It is
to be seen that where there is undoubtedly public injury by the act or omission of the
functionary of the State or a local authority or public authority or executive excess
causes a legal injury to a specific class or group of individuals or a public injury or
public wrong or infraction of fundamental rights affecting a number of people is
involved the exercise of jurisdiction by Court is justifiable. If grievances of those
people are unrepressed due to poverty, lack of education, helplessness, social
disability, only then the Court would entertain a petition if a public spirited person or
organisation comes to Court on their behalf. In other words, we would like to make it
clear that the underprivileged or the poor who are unable to come to Court due to
illiteracy or monetary helplessness, a petition on their behalf will be welcomed. The
litigation must have been initiated for the benefit of the poor or any number of
people who have been suffering the common injury but their grievances can not be
redressed as they are not able to reach the Court.

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 20. However, if the said class or group who are injured by the action do not wish to
claim a right or relief against such invasion and accept such act or omission without
protest, no member of the public or organisation making the relief has suffered a
secondary public injury can maintain any petition against such act or omission, or
when an act or omission is of such a nature which shocks the judicial conscience, the
Court should extend its jurisdiction.
21. We want to make it clear that every wrong or curiosity is not and can not be the
subject matter of PIL. In the name of public interest frivolous applications should be
avoided. None of the contingencies discussed above is present in this case and thus
the writ petition is not maintainable. This disposes of the preliminary objections as to
the maintainability of the writ petition raised by the learned Additional Attorney
General.
22. Mr. Fida M. Kamal, learned Counsel appearing for the appellant argued that the
High Court Division erred in law in relying upon the case of Parvin Akter in failing to
appreciate the ratio decidendi of the case of Rajdhani Unnayan Kartipakha and
another vs. Moshiul Islam, 53 DLR (AD) 79, which is applicable in this case, and the
case of Parvin Akter is quite distinguishable. It is further contended that the High
Court Division failed to appreciate that there can not be any revision of layout plan
without first adopting an improvement scheme. The findings of the High Court
Division that the alteration of the open space being not marked as public amenity is
lawful is erroneous, inasmuch as, annexure-B to the writ petition, clearly shows that
the said open space is lake side greenery that cannot be altered for creation of new
plots without following the provisions of the Town Improvement Act, 1953. Learned
counsel further urged that the findings of the High Court Division that the benefits of
open space are momentary fortuitous is erroneous as it ignores that the petition was
filed in public interest to protect the water body of Uttara lake and associated rights.
It is finally argued that the High Court Division erred in law in failing to consider that
a road 20 of feet in width is being used as pedestrian road only as opposed to
vehicular road as per provisions of the Town Improvement Act.
23. Learned counsel based his submission relying upon annexures-B & C, to the writ
petition and tried to impress us that annexure-B is a Master Plan of Sector-3, UMT,
where the lake side adjacent to Road No. 20 shows a narrow strip of land which has
been left out by the respondent No. 2 in the original Master Plan as space for
development park with a view to enhance the view of the water body. The writ
petitioner claimed that if the proposed scheme is implemented, there would be
degradation of the environmental and health hazard to the residents of the vicinity
and that the southern side of the lake would be filled up for constructing new Road
No. 22 for connecting it to Road No. 20 which is a deviation of the original Master
Plan.
24. Mr. A.F. Hasan Ariff, learned counsel appearing for the respondent No. 2 argued
that the learned counsel for the writ petitioner confused the expression 'Master Plan'
and on a misconception of law claimed that the respondent No. 2 changed the
original master plan. According to the learned counsel, under no stretch of the
imagination, exhibit-B can be taken as a Master Plan which is nothing but a revised
layout plan and the authority has revised it in accordance with the provisions of the
Act. Learned counsel further contended that the expression Master Plan has not been
defined in the Act or in any other laws. According to the learned Counsel, there is
distinction between "a Master Plan" and "a layout Plan", and in support of his
contention he has referred to 83 AM-JUR, 2nd Edition (Zoning and planning) at page

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 61.
25. This takes us to consider whether annexure-B, to the writ petition is the original
master plan of Sector-3 which has subsequently been changed by the writ respondent
No. 2 in the revised layout plan in order to allot plots to the new allottees. What
constitutes a 'Master Plan' and 'comprehensive zoning plan' have been explained in
83 AM-JUR as under:
"Master plans serve as general guides that recommend area development and
proposed future land use and zoning. Such a plan may be called a master
plan or a comprehensive plan. Not only is the development of a local
comprehensive zoning plan a valid exercise of power by the government, but
an enabling statute may require that zoning be made in accordance with a
plan. A master plan essentially surveys land use as it exists and makes
recommendations for future planning, and it may include maps and other
descriptive materials which document the various land uses present within
the jurisdictional area.
A "comprehensive zoning plan" is one which applies to or covers a
substantial or wide geographical area, and must be designed to control and
direct the use of land and buildings according to present and planned future
conditions, to accomplish as far as possible the most appropriate uses of the
land consistent with the public interest and the safeguarding of the interests
of individual property owners. A municipality may establish a comprehensive
land-use plan and effectuate that plan through a scheme of comprehensive
zoning regulations."
26. We find from the above that a master plan is nothing but a guide for proposed
future land use recommending the development of the area and zoning. It generally
surveys land use as it exists and recommends for future planning. In the Act, the
expression 'Master Plan' has not been defined. There is however, reference of 'Master
Plan' in sections 73, 74 and 75. Section 73 speaks about preparation of a 'Master
Plan' in respect of an area for carrying out development of the land in phases. It is
said, a master plan includes maps and such descriptive matters to illustrate the sites
of proposed roads, public and other buildings, fields, parks, pleasure grounds and
other open spaces. A master plan must be published in the official gazette by the
Government after it has been prepared by the authority. There is also provision for
filing objection against the master plan by any person aggrieved by the preparation
of the same and the Government may modify it if there is merit in the objection.
Though this 'Master Plan' is a conclusive evidence after it is approved by the
Government as provided therein but it can also be amended or altered by the
Katripakkha under section 74(2) from time to time with the approval of the
Government. Section 75 relates to use of land within the 'Master Plan' area for any
purpose other than that laid down in the master plan by any person with prior
permission of the authority.
2 7 . We find from the above that the Town Authority or the Municipality or the
Katripakkha draws a comprehensive plan for the development of the township by
phases after surveying the entire land for future planning. This includes roads, public
and private buildings, fields, parks pleasure grounds etc. delineating in the maps and
in the layout plans with descriptions to illustrate the proposals. There is no dispute
that annexure-'B' is a photo copy of a layout plan and the same does not include
descriptive matter to infer anything that the open space has been kept for park or

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 pleasure ground for the residents of the vicinity of Road No. 20. It has not been
published in the official gazette and therefore, it does not fall in the category of
'Master Plan' as indicated in section 73.
28. Clause (c)(II) of section 38 of the Town Improvement Act, 1953 authorizes the
Kartripakkha either on a representation or otherwise for the purpose of developing
and improving any area to pass a resolution to that effect and may then proceed to
frame an improvement scheme. Mr. Ariff contended that the respondent No. 2 revised
the layout plan for greater interest of the public for housing accommodation and in
doing so it has not violated any law. As observed above, exhibit-B is a photo copy of
a layout plan and the learned counsel for the writ petitioner has frankly conceded that
exhibit-B is not the original Master Plan of Sector-3. Though an open space is seen in
it by the lake side towards the western side of Road No. 22, but this layout plan does
not indicate as to the purpose for which it has been kept. The writ petitioner did not
call for the original layout plan of Sector-3 to show that this narrow strip of land has
been kept for development of Park to enhance the view of the water body as lake.
Thus, we find no substance in the contention that Annexure-B is a master plan of
Sector No. 3 and that the narrow strip has been kept for Park or for any other
purposes other than for housing purpose.
29. Section 40 of the Act relates to matters for the improvement schemes. Clause (b)
of section 40 authorizes the Katripakkha to laying out or relaying out of an area for
implementing a scheme for development purposes. Admittedly the respondent No. 2
revised the layout plan for using the vacant space for housing purpose. As per
provisions of the Act the respondent No. 2 has been authorised to undertake
improvement by relaying out of the land of any area. Mr. Fida M. Kamal, however,
argued that this section 40 has been wrongly applied by the High Court Division and
this alteration has been made in violation of sections 69, 73 and 74 of the Act.
Section 69 deals with matters relating to plans for public streets or open spaces in
regard to any area within the city or neighbourhood of the city where the Act applies.
This section has no application in view of the fact that the lay out plan of Sector-3
has admittedly been prepared long before the institution of the writ petition as will be
evident from Annexures-B & C to the writ petition. The master plan of UMT has been
prepared long long-ago and after approval of the master plan, the Kartripakkha has
taken up for the development of the UMT phase by phase. The formalities for filing
objections against the master plan or part thereof as required under sub-section (4)
of section 73 has long been elapsed and the master plan has been approved by the
Government before implementation of UMT. These are past and closed transactions.
This alternation or revision of the layout plan of a particular Zone of UMT has been
undertaken for the development of the area. Therefore, we find no substance in the
contention of the learned Counsel for the appellant that there is violation of sections
69, 73 and 74 of the Act.
30. Now the question is whether as a result of revising the layout plan, there will be
environmental degradation due to congestion of the area by reason of conversion of
the narrow strip land into residential plots. True, by reason of conversion of the
vacant space there might be congestion in the area but this preparation of relaying
out plan is within the power of the respondent No. 2, and this has caused no
infraction of law. If there is no infraction of law, then it is difficult to come to the
conclusion that there has been invasion of the fundamental rights of the writ
petitioner. It is also difficult to sustain to the view that this congestion has caused
environmental degradation of the locality in the absence of law in that regard.

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 31. Learned Counsel tries to make out a case that this revision of the layout plan is
violative of section 54, inasmuch as, under this provision roads or strips of land of
20 feet in width is intended for pedestrian traffic only as opposed to vehicular road
and since this vacant space has been converted into housing plots, this road which is
meant for pedestrian traffic will be used for vehicular purposes. Section 54 deals with
matters relating to existing streets and alteration of the existing one providing that if
the authority requires any alteration the width of the street should not be reduced to
forty feet if it is intended to be used for vehicular traffic and twenty feet if it is
intended for pedestrian traffic. In the proviso it is provided that the width of an
existing street need not be increased if the Katripakkha considers it impracticable and
that the authority may in case of necessity install equipment beneath the street for
sanitary purposes. This provision has been provided for the convenience of the
residents of the locality that a provision has been made in the Act that a street having
less than twenty feet in width be indented for pedestrian traffic. The alteration of the
existing street is not the case of the writ petitioner and thus we find no merit in the
contention of Mr. Fida M. Kamal.
32. On a delving into the Act it is noticeable that as per scheme, the Katripakkha has
been given power to revise, alter or amend the layout plan or the master plan, in
case of necessity, for the purpose of development of an area and this improvement of
any locality is a continuous process and for the improvement and accommodation of
more people, an unutilized land acquired for habitation purpose can be utilized at any
time. Section 73 of the Town Improvement Act authorises the respondent No. 2 to
prepare a master plan for an area indicating the manner of using land for carrying out
development by preparing maps and such descriptive matter to illustrate the
proposals delineating proposed roads, buildings, fields, parks and this master plan
has no nexus with a development scheme to be undertaken in a particular zone under
section 40 of the Act. On a combined reading of sections 38, 40 and 73 shows that
an improvement scheme in respect of a particular zone or area is a continuous
process and the continuation of such scheme does not amount to violation of any of
the provisions of the Act.
33. Annexure-E, is the report of the Ministry of Environment which shows that the
lake has not been filled up. What is more, annexure-1 is the layout plan of Sector-3,
which was prepared on 14th November, 1983 and in the said layout plan, some plots
had been shown in between the Road No. 20 and the lake. Annexure-2 is the revised
layout plan of Sector 3, which was prepared on 30th October, 1995 earmarking 26
housing plots. These plots were created in the revised plan before filing the writ
petition in 1997. In view of the above, we find no merit in the contention of Mr. Fida
M. Kamal that the adoption of the revised layout plan has been made without
following the provisions of the Act.
34. Learned Counsel has referred to an unreported decision in Civil Appeal No. 148
of 2002 in support of his contention. In that case, the writ petitioner called in
question the unauthorized construction of a multi-storey building namely 'Udayan
Market' undertaken by the Dhaka City Corporation at Bangabandhu Avenue which was
a site reserved for car parking center as shown in the master plan of RAJUK. The writ
petition was filed on the ground that if the multistory shopping complex is
constructed, the environment of the area will be threatened and that the project was
not undertaken for the welfare of the common people. This Division upon hearing the
parties allowed the appeal declaring that the construction of Udayan Market on the
proposed land earmarked for public car parking in the master plan had been
undertaken unlawfully, for collateral purposes, and that it would be unlawful for any

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 one to use the land for any purpose other than that laid down in the master plan
unless such person was permitted to do so. The facts of the case is quite
distinguishable from the facts of this case.
3 5 . There is no allegation that if housing project is implemented on the vacant
space, there will be environmental problems in the vicinity depriving the residents
from their lawful rights to the enjoyment of a sound and healthy environment. There
is also no allegation that in case of implementation of the housing project there will
be ecological affect in the locality. Though there is allegation that by the impugned
layout plan, the narrow strip of the lake side land be filled up and plots be reclaimed
and at the same time, the southern side of the lake would also be filled up for
constructing a new road being No. 22 for connecting it with Road No. 20, the High
Court Division upon perusal of the materials on record came to the conclusion that
there is no evidence or material with regard to the filling up of the lake in any
manner.
36. In Mushiul Islam (53 DLR (AD) 79), admittedly a vacant space kept for use as
park, play ground, school, mosque and community center in Sector 4, UTM was
converted into residential plots. The High Court Division found that this alteration
was made illegally and the layout plan was illegally changed. This Division
maintained the judgment observing that section 2(h) of the Act authorities RAJUK to
alter the layout plan, which power must be exercised for the purpose of
improvement. The conversion of park and open space enjoyed by the surrounding
allottees of a planned township cannot be converted into residential plots. In the
facts of the given case, this Division rightly maintained the judgment of the High
Court Division and this decision is quite distinguishable.
3 7 . In Parvin Akter (7 BLC(AD) 167), a writ petition was filed by Parvin Akter
challenging the action of the RAJUK in implementing a project in Gulshan Model
Town by creating plots on the bank of the lake and constructing a road for access to
the new plots adjacent to her house. It is claimed that if the construction was made
by the new allottees, greeneries and vegetation would be destroyed and she would be
deprived of the view of the lake and greeneries and her privacy would also be
disappeared rendering it impossible to reside on her constructed building. The High
Court Division made the rule absolute. This Division set aside the judgment of the
High Court Division observing that the original master plan of Dhaka City was
formulated as far back in 1959 and there is no master plan for Gulshan Model Town.
It is further observed that a residential model town is developed according to the
detail area plan commonly known as layout plan prepared to cater to the
requirements of the time, and that there is scope for change and modification of the
layout plan from time to time to cope with and cater to the needs of a first growing
metropolitan capital city. The RAJUK, in the premises, modified the layout plan and
converted the narrow strip of land between the Parvin Akter's land and Gulshan lake.
There is no evidence that the lake has been or is being filled up for the project. The
narrow strip of the vacant land has been converted into plots which is an extension of
Gulshan residential plots by altering the layout plan and this would not adversely
affect the environment of Gulshan or the greeneries of the lake. The facts of the case
of Parvin Akter are almost in resemblance with the facts of the present case. In view
of the above, the High Court Division has rightly followed the case of Parvin Akter.
38. There is no material in support of the allegation that the lake side land adjacent
to Road No. 20 would be filled up or that process for allotment of plots of the lake
side land has been started deviating the original master plan and that the southern

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 side of the lake would be filled up for constructing a new road being Road No. 22.
However, we have reason to believe that the implementation of the project would
render the area congested one, which in turn affect the residential trait of the UMT. It
can not altogether be brushed aside that if this process of allotment of plots is
implemented without any check, one day the planned UMT would be converted into
an unplanned residential area, in which event, the purpose for which UMT had been
under taken would be bound to shatter. This sort of scheme would also deprive the
residents of the vicinity from a healthy atmosphere.
39. What is more, these new plots had not been allotted at the initial stage along
with its' surrounding plots. The authority cannot allot plots of a residential area
capriciously without following the procedures. We have been noticing in a number of
cases that there has been a rise in the tendency of converting the narrow strips and
vacant spaces which have been kept beside the lakes of Banani, Gulshan, Baridhara,
Nikunja and Uttara Model Town and they are being allotted as residential plots to the
selected persons on political or other considerations. If this process is allowed to
continue one day it would be found that the greeneries and vegetation would be
covered by multistory buildings rendering the vicinity a congested area resulting it
impossible for the city dwellers to lead a normal habitable life in those areas and this
would have affected environmental degradation.
40. If we look at society from a historical perspective, we realise that protection and
preservation of the environment has been integral to the cultural ethos of most
human communities. The international community has increased its awareness of the
relationship between environmental degradation and human rights abuses.
Environmental protection encompasses not only pollution but also sustainable
development and conservation of natural resources and the eco-system. Our
Government is increasingly supportive of stringent environmental laws and enacted
Article 31 of the Constitution states that every citizen has
the right to protection from 'action detrimental to the life, liberty, body, reputation or
property' unless these are taken away in accordance with law. The citizens have the
inalienable right to be treated in accordance with law. If these rights are taken away
compensation must be paid. The Supreme Court of India upon interpreting Article 21
of the Indian Constitution observed that the right to life and personal liberty to
include the right of environment.
41. It is thus apparent that environmental and human rights are inextricably linked.
Despite the above law, protection and preservation of environment is still a passing
issue. The RAJUK taking advantage of its powers conferred by the Act is converting
the open spaces initially kept beside the Gulshan, Baridhara, Banani, Nikunja and
Uttara lakes into residential plots and has been allotting those plots to the influential
persons phase by phase without following the procedures. There should be
transparency in the system of allotment of such plots. Mr. Ariff has failed to satisfy us
what procedures for allotment of these plots are being followed? Admittedly the
converted plots from the vacant open spaces had not been allotted at the time of
allotment of surrounding plots of the locality. Taking advantage of lack of proper plan
to utilize these vacant spaces, the neighbouring allottees it is alleged, has encroached
most of the said lands and even raised constructions without prior permission.
Allotment of selected plots by pick and choose basis without following objective
procedure is arbitrary and deprecated. Under the circumstances, we feel it proper to
see that the Katripakha has not exercised its powers arbitrarily while dealing with
such vacant spaces. If the authority decides to use an unutilized land acquired for
habitation purpose, the allotment should be made in transparent manner

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 safeguarding the interest of the neighbouring residents and following the procedures.
42. Though we found that the writ petition is not maintainable, but considering the
trend of converting the vacant spaces in a concerted manner phase by phase as
housing plots taking advantage of the weakness of the law and allotting them to
selected persons without following the procedures, this Division being the final
arbiter should step in to prevent undue and arbitrary exercise of powers. Courts have
always been considered to have an overriding duty to maintain public confidence in
the administration of justice-often referred to as the duty to vindicate and uphold the
majesty of law. Due administration of justice has always been viewed as a
continuous process, not confined to determination of the particular case, protecting
its ability to function as a court of law in the future as in the case before it. Doing
justice is the paramount consideration and that duty can not be abdicated or diluted
by reason of improper application. It is recognized in the public interest that the
authority acting by virtue of statutory powers can not exceed his authority. In view of
the above, we feel it proper to direct the respondent Nos. 1 and 2 to carry out the
following guidelines:
a) to make survey of the aforesaid lakes on the basis of the original master
plans drawn and in its absence, the original layout plans and demarcate the
areas of the said lakes by affixing permanent pillars.
b) RAJUK to take immediate step not later than 6 months from the date of
receipt of this judgment to construct walk-ways on the banks around the
Gulshan, Baridhara, Banani, Nikunja and Uttara lakes.
c) to serve notices upon the encroachers to vacate the encroached lands,
within 15 days of receipt of the notices after demolishing structures, if there
be any, and if they fail to vacate land evict all encroachers after survey and
the costs of such eviction be realised from them by filing cases under the
Public Demand Recovery Act, 1913.
d) to close down all drains and other pits of filth that pass into those lakes.
e) the residential plots created from the vacant spaces beside those lakes
prior to this pronouncement will be allotted in accordance with the procedure
being followed in the allotments in respect of old plots were made.
f) to transplant trees on the banks bordering the lakes.
g) if these directions are not complied with, the Chief Metropolitan Magistrate
will prosecute the officers responsible.
The appeal is dismissed with the above observations without any order as to costs.
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