Mohiuddin Faruk Case BELA 308564 - W.P.No.891of94 (Judgemnt) PDF
Mohiuddin Faruk Case BELA 308564 - W.P.No.891of94 (Judgemnt) PDF
Mohiuddin Faruk Case BELA 308564 - W.P.No.891of94 (Judgemnt) PDF
A.B.M.Khairul Haque, J:
1. This rule was issued at the instance of late Dr. Mohiuddin Farooque, the
(‘BELA’ for short), an association registered under the Societies Registration Act,
2
to represent the said association, to move the High Court Division of the Supreme
praying for appropriate relief relating to the matter of control of pollution from
Registration Act, 1860, with the aims and objects, inter alia, to organize and
been active in the field of environment, ecology and related horizon of public
interests since 1991 even before its formal registration as an association. Since its
its wide-spread contributions in these fields earned its reputation and recognition
why a direction should not be given to implement the decision of the Government
dated 5th June, 1986, published in the Bangladesh Gazette on 7th August,
4. This part of the world which is now known as Bangladesh, had always
been predominantly an agricultural based country and in early days pollution was
never even felt in this region. Since early sixties, of necessity, industries of
various kinds started to spring up slowly. Although in those days the question of
pollution did not cross anybodies mind but certain provision were made in the
Chapter III provides for health and hygiene in a factory. Section 13 under the said
chapter provides for disposal of wastes and effluents. Rule 13 of the Factories
Rules, 1979 provides for similar provision. Subsequently, East Pakistan Water
provide for the control, prevention and abatement of pollution of waters in the
then East Pakistan. Section 2 of the said Ordinance defined the words “pollution”
“2. ………………………………………………..
(a) ………………………………………………..
(e) “pollution” means such contamination, or other alteration of
the physical, chemical, or biological properties of any waters,
including change in temperature, taste, colour, turbidity, or odour
of the waters, or such discharge of any liquid, gaseous, solid,
radioactive, or other substance into any waters as will or is likely
to create a nuisance or render such waters harmful, detrimental or
injurious to public health, safety or welfare, or to domestic,
commercial, industrial, agricultural, recreational, or other
legitimate beneficial uses, or to livestock, wild animals, birds, fish
or other aquatic life;
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……………………………………………………..
…………………………………………………….
After liberation of Bangladesh, this Ordinance was repealed and replaced by the
(Ordinance No. XIII of 1977) (‘Ordinance’ in short), to provide for the control,
follows:
“2.………………………………………………………
(a)…………………………………………
(f) “environment” means the surroundings consisting of air, waters,
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.”
Environment Pollution Control Board. Section 5 of the Ordinance provides for the
Director, for the purpose of implementation of the policies of the Board and the
caused continuously due to discharge of various industrial wastes into air and
water bodies. They also found that the intensity of pollution caused by the
factories and industrial units depend on their type, location, raw materials,
chemical effects, production process and discharge of gaseous, liquid and solid
pollutants to the natural environment. After the survey, the respondent no.2, by a
Bangladesh Gazette on
7th August, 1986, specified the names and addresses of the 903 industries and
The said notification also mentions that the Government, in order to combat the
“2………………………………………………
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7. The grievance of the petitioner BELA, in this writ petition is that it made
several investigations up and down the country to assess the improvement, if any,
made in the ecology of the country by lessening the adverse effects of pollution
itself and specifically pointed out in the notification dated 7.8.1986 (Annexure-C
to the petition), but in its utter dismay found no evidence as to any effective
measure or legal action taken against any of the 903 industries/factories to curb
their continuing discharge of the affluent and wastes into air and water bodies,
7.8.1986 but in many a new industries/factories sprung up since then and are
severely polluting the environment and ecology endangering life and its support
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systems, thereby the respondents failed in performing their statutory duties and
obligations cast upon them by the provisions of the Ordinance. As such, being
rule.But he died during the pendency of the rule and Ms. Syeda Rizwana Hasan,
petition.
Advocate of this Court, appears with Mr. M. Iqbal Kabir, Advocate, in support of
the rule, while Mr. Md. Zahurul Islam Mukul, Assistant Attorney General,
9. This writ petition is in the nature of public interest litigation, as such, the
10. In this case, any individual member or members of BELA do not claim to
have been directly or specially effected by the toxic pollutants caused by the
discharge of affluent and wastes, rather, the petitioner claims that the beneficiaries
of this writ petition are the people, the inhabitants of this country and not simply
the rights of the people of Bangladesh and champions their cause to enjoy their
own life, free from pollution as bestowed upon them by the Lord in His
unbounded mercy. From the narration of the writ petition it appears that BELA is
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directly involved since its inception for the preservation of the environment from
the ill effects of ecological imbalance created by the senseless as well as reckless
enacted in this regard and since BELA is trying to uphold the right to life as a
appearing in Article 102 of the Constitution and has locus standi to maintain the
Kamal, J (as his Lord-ship then was) in the case of Dr. Mohiuddin Farooque Vs.
11. The importance of public interest litigation had already been settled in
Lordship then was) forcefully propounded the legal position almost 20(twenty)
years back in this manner in the case of Peoples Union for Democratic Rights
“….Public interest litigation is brought before the court not for the
purpose of enforcing the right of one individual against another as
happens in the case of ordinary litigation, but it is intended to
promote and vindicate public interest which demands that
violations of constitutional or legal rights of large number of
people who are poor, ignorant or in a socially or economically
disadvantaged position should not go unnoticed and unredrssed.
That would be destructive of the Rule of Law which forms one of
the essential elements of public interest in any democratic form of
government. The Rule of Law does not mean that the protection of
the law must be available only to a fortunate few or that the law
should be allowed to be prostituted by the vested interests for
protecting and upholding the status quo under the guise of
enforcement of their civil and political rights. The poor too have
civil and political rights and the Rule of Law is meant for them
also, though today it exists only on paper and not in reality.”(Para-
2).
12. Under such circumstances, we have no hesitation to hold that BELA being
registered as an association with the aims and objects, inter alia, to undertake
systems and since it is profoundly active and vocal in this field of great public
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interest, it comes within the expression ‘person aggrieved’ under Art.102 of the
Constitution.
13. During the hearing of the rule, a supplementary affidavit was filed on
14. Ms. Syeda Rizwana Hasan, the learned advocate, submits that their
the factories and industrial units creating ecological imbalance due to discharge of
various industrial wastes into air and water bodies and published a notification on
own decisions taken and narrated in clause 2 of the Gazette notification dated
7.8.1986. She refers in this connection to the reply dated 11.7.1994 (Annexure-H)
She also refers to the new list prepared by the Department of Environment
(Annexure-I). This new list, she submits, identified a total number of 1176
industries/ factories up and down the country as polluters which only shows that
failure to curb the ill effects of pollution in the country by the respondents. As
such, she prays that the respondents should be directed to implement the declared
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policy of the Government made as far back as in 1986 in the Gazette Notification
15. On behalf of the respondents, Mr. Md. Zahurul Islam, Assistant Attorney
independent and sovereign country of their own and through their Constituent
17. This paragraph of the preamble glorified the pledge of the nation to
establish a society in which the rule of law, fundamental human rights and
18. Part III of the Constitution enshrines the basic right of the people under
47A. Article 26 declares that the laws inconsistent with the fundamental rights are
to be void. Article 32 provides for protection of right to life and personal liberty.
This declaration in the Constitution is not mere empty words. These guarantees
which is necessary to make it meaningful and a ‘life’ worth living, such as, among
maintenance of health, lack of which may put the ‘life’ of the citizen at nought.
Naturally, if the lives of the inhabitants living around the concerned factories are
of this country.
19. In India, the first break-through of importance in this regard came in the
652, popularly known as Doon Valley Case. The Dehradun Valley in India is
surrounded in one side by the Himalayan range and the Ganges and Yamuna
rivers in the other, has been an exquisite region but because of uncontrolled
quarrying of limestone, its landscape lost its former beauty. In this case a letter
received from the Rural Litigation and Entitlement Kendra, Dehradun, was treated
as a writ petition and the Supreme Court by its Judgment and Order dated 12th
March, 1985, AIR SC 652, directed closing down the mines of ‘A’ category
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located within the municipal limits of Mussoorie and in doing so held as follows
in paragraph 6:
In the aforesaid Doon Valley Case, several committees were appointed and their
reports and schemes were considered by the Supreme Court and further directions
were given from time to time. However, in the subsequent Judgment reported in
AIR 1987 SC 359, considering the questions as to whether the mine leases can be
“17…..It is for the Government and the Nation and not for the
Court, to decide whether the deposits should be exploited at the
cost of ecology and environmental considerations or the industrial
requirement should be otherwise satisfied.
18. Government- both at the Centre and in the State- must realize
and remain cognizant of the fact that the stake involved in the
matter is large and far reaching. The evil consequences would last
long. Once that unwanted situation sets in, amends or repairs
would not be possible. The greenery of India, as some doubt, may
perish and the Thar desert may expand its limits.
19……We are not oblivious of the fact that natural resources have
got to be tapped for the purposes of social development but one
cannot forget at the same time that tapping of resources have to be
done with requisite attention and care so that ecology and
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environment may not be affected in any serious way there may not
be any depletion of water resources and long-term planning must
be undertaken to keep up the national wealth. It has always to be
remembered that these are permanent assets of mankind and are
not intended to be exhausted in one generation.”
(Ranganath Misra, J.)
20. In the back-drop of this legal position, let us now consider the grievance of
the Government of the day was not in total oblivion of the problem of
environmental pollution in Bangladesh and although slowly but they took the
cell created for the purpose of executing the policies of the Board.
Environment, Pollution Control. The said survey identified the types of factories
polluting the environment and those factories and industrial units were also
classified into 13(Thirteen) classes, numbering in total 903 factories and industrial
units. The classification with the list of factories and industrial units identified by
Affidavit).
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22. Meanwhile, the Act of 1995 replaced the earlier Ordinance. The Act
(jq¡ f¢lQ¡mL). Section 4 of the Act narrates the powers and functions of the
Director General.
to take all such steps as may be deemed expedient and necessary for the
writing to any person for performing his duties under the Act. Sub-section 2(d)
entitles the Director General to give advice or direction as the case may be to any
pollution and may give orders or directions to appropriate authority or person for
the prevention, control and mitigation of the environmental pollution. Under sub-
section 3, directions may also be issued providing for the closure, prohibition or
regulations of any industry, or process and the concerned person shall be bound to
24. Section 7 of the Act contemplates the remedial measures if the eco-system
indirectly, he may, after assessing the extent of damage, direct the person
responsible for taking appropriate corrective measures and such person shall be
likely to occur due to any accident or other unforeseen act or event, the person
responsible for such acts or the person in charge of the place at which such
contemplated under this rule, the Director General shall, as soon as possible,
pollution and such person shall be bound to render all assistance to the Director
this provision.
Rules, 1997 (‘Rules’ for short). The Rules lay down the procedure for achieving
the objectives provided for in the Act. Rule 7 describes the procedure for
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obtaining environmental clearance and also classifies the industrial units and
projects into three broad categories depending on the possible degree of risk of
28. The industrial units and projects which have very little pollution impact on
are classified as Orange-ka, Orange-kha and the dangerous ones are classified as
Red. These four categories of industrial units and projects are mentioned in
Schedule-I to the Rules. Schedule-2, 3, 4 and 8 has set the standard limits for air,
water, noise, odour respectively. Schedules 10, 11, 12 of the Rules have also
The provisions of the Act and the Rules require that these standard limits have to
29. The grievance of BELA, it appears is that inspite of all these provisions
made in the Act and also in the Rules there is hardly any improvement in curbing
and reducing the hazardous industrial pollution rather, the reports (Annexure-I)
industrial units and projects causing environmental pollution is on the increase all
over Bangladesh. The papers annexed with the petition and the subsequent
taking all possible measures to reduce the environmental pollution but failed to
Forest, the respondent no.3. The facts stated in the said Affidavit is equally vague
and do not deny the allegations of unresponsiveness on the part of the officials in
implementing the letters of the law and the decisions of the Government taken in
this regard and published in the Bangladesh Gazette as far back as on 7.4.1986
“18 (1) The State shall regard the raising of the level of nutrition
and the improvement of public health as among its primary duties,
and in particular shall adopt effective measures to prevent the
consumption, except for medical purposes or for such other
purposes as may be prescribed by law, of alcoholic and other
intoxicating drinks and of drugs which are injurious to
health.”(under-linings are mine).
The Constitution also commands the duties of the citizens and of public servants
Rules, the hiatus remained as before between the letters of law and the
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32. The oath of office of the Judges of the Supreme Court requires that they
will preserve, protect and defend the Constitution and the laws of Bangladesh.
These are not mere ornamental empty words. These glorifying words of oath
Government or its functionaries fails to act and perform its duties cast upon them
by the laws of this Republic, the High Court Division of the Supreme Court, shall
not remain a silent spectator to the inertness on the part of the Government or its
officials, rather, in order to vindicate its oath of office can issue, in its discretion,
necessary orders and directions, under Article 102 of the Constitution to carry out
the intents and purposes of any law to its letter, in the interest of the people of
Bangladesh because all powers in the Republic belong to the people, and their
exercise on behalf of the people shall be effected only under, and by the authority
of the Constitution.
33. In this connection, let us consider certain decisions of the superior Courts
in India. In Doon Valley case discussed earlier, the Supreme Court of India for the
first time, in exercise of its epistolary jurisdiction, ordered closing down of lime-
stone quarries, in order to preserve the ecological balance in Mussorie Hill range
34. In the case of Mr. M. C. Mehta V Union of India AIR 1987 SC 1086,
Oleum gas leaked in one of the units of Shriram Foods and Fertilizer Industries
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with serious apprehension of disaster, the Supreme Court, on the petition of Mr.
M.C. Mehta, an Advocate of the Supreme Court, initially closed down the plant
but after much deliberation with considerable hesitation, allowed the plant to re-
start but subject to many a safety measures. P.N. Bhagwati, C.J. in considering the
delicate issue involving closure of the plant causing loss of jobs to the hundreds of
employees, economic loss to the Company and other ancillary issues, held as
follows :
35. In the case of L.K. Koolwal V State of Rajasthan AIR 1988 Raj 2, one Mr.
L.K. Koolwal moved the Court in its writ jurisdiction in connection with the acute
sanitation problem in Jaipur City which became hazardous to the life of the
Municipality to remove the dirt, filth etc. within a period of six months, D.L.
The learned Judge while upholding the enforcement of the duty cast on the state
“If the Legislature or the State Govt. feels that the law enacted by
them cannot be implemented then the Legislature has liberty to
scrap it, but the law which remains on the statutory books will
have to be implemented, particularly when it relates to primary
duty.”(Para-10).
its affluents in the river Ganga near Kanpur the Supreme Court of India ordered
follows :
take certain immediate steps, the Supreme Court of India on the application of
Karnataka 57, while issuing a mandamus with a direction to abate the pollution in
Karnataka 281, the rice mill situated near the residential house of the petitioners,
causing health hazard by emitting husk and dust in the entire atmosphere in
down.
39. In the instant case, it appears that the Government took the decision as far
back as in 1986, that the Ministry of Industries would ensure that the industries
measures to control pollution over a period of next three years. The affidavit in
Attorney General could not put before us evidence of any such measures
years the situation got worse inspite of enacting various laws in this respect. But
we do not see on papers before us, evidence of implementation of any of the many
entitles every citizen of this country to the right to protection of law. Art. 31 reads
as follows :
country. The Act of 1995 and the Rules of 1997 were enacted with specific
from the environment, as such, protection of the citizens under such laws, is a
guaranteed right under Art. 31, to make their lives meaningful and worth-living.
perform their such primary, mandatory and obligatory duties as required under the
provisions of the Act and the Rules made thereunder and no excuse would be
rights of any person, and the laws of the country are obeyed and implemented to
the letter. The Act of 1995 are enacted with lofty ideas and solemn hope to
eradicate the ill effects of pollution and to protect the lives of many millions of
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Bangladesh, under Art.31, is entitled to enjoy protection of such laws and under
Art.21, every person in the service of the Republic has a duty to ensure
observance of the Constitutional mandates and the laws of the land, to strive at all
times to serve the people to whom all powers in the Republic belong. As such, it
is also the constitutional obligation of the Government to ensure that the rights of
the people, so very glorified under Art.18 and Art.32 of the Constitution, are
vindicated and defended and the provisions of the said Act is implemented in its
real spirit to protect the interest of the people. In case of any breach or latches in
Government under Article 102 of the Constitution. In such a process, the Supreme
42. Art.32 guarantees a right to life. This expression ‘life’ does not mean
merely an elementary life or sub-human life but connotes in this expression the
life of the greatest creation of the Lord who has at least a right to a decent and
healthy way of life in a hygienic condition. It also means a qualitative life among
others, free from environmental hazards. This is also one of the basic rights of a
Art.102 will be available if this basic human right is threatened due to violation of
any of the provisions of the relevant laws enacted for such purpose or due to
upset the guarantees under Art.31 and Art.32 of the Constitution. In this
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free environment to protect the life from its ill effects, although various provisions
are embodied in the Act and the Rules made thereunder but apparently, the
Government, specially the respondent no.4, who is charged with the duties to
make the environment pollution free, failed to execute and perform their such
duties to the letters of the law so far, meanwhile the 903 industrial units and the
identified in 1994-95 (Annexure-I) continued to pollute the waters, the rivers, the
mandates and the legislations on this vital aspect of national importance and
pollution continued unabated which may bring serious consequences to the lives
of the many millions of people of this country and mauls the very core of Art.32
of our Constitution.
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44. The facts and circumstances, presented to this Court shows that the
respondents failed to implement their own decisions dated 5.6.1986 as spelt out in
the meantime, the number of industrial units and factories identified as polluters
legislations were made from time but the Government apparently was never
serious about implementing its own laws to the detriment of the eco-system of
this country. The concerned officials and the Government as a whole appears to
and Art.32 read with Art.18 and Art.21. This sorry state of affairs cannot continue
unabated. We are also constrained to hold that this unfortunate state of affairs is
not due to any lack of legislation rather, due to unresponsiveness of the concerned
Government officials to implement the letters of the law and executed into action
Ratlam V. Vardhichand, AIR 1980 SC 1622, where Krishna Iyer, J. quotes with
approval “ All power is a trust- that we are accountable for its exercise – that,
from the people, and for the people, all springs, and all must exist.” (Vivian Grey,
“….the court will not sit idly by and allow municipal government
to become a statutory mockery. The law will relentlessly be
enforced and the plea of poor finance will be poor alibi when
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directed to ensure that the industrial units and the factories which come within the
classification ‘red’ as stated in rule 7 of the Rules, must adopt adequate and
sufficient measures to control pollution within one year from the date of receipt of
this judgment and order and report compliance to this Court within six weeks
thereafter.The industrial units and the factories which are classified as Orange-Ka
and Orange-Kha, must also adopt similar measures to control pollution within a
period of two years from date and the respondent no.4 shall ensure compliance
within the said period and report to this Court soon thereafter.
ensure that no new industrial units and factories are set-up in Bangladesh without
the provisions of the Act and the Rules made thereunder to the notice of this
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Court. The respondents are also at liberty to approach this Court for directions as
and when necessary so that the objectives of the Act can be achieved effectively
and satisfactorily.
50. Before parting with the case, we would like to place on record our deep
appreciation for BELA and its members for their tireless, sincere and
commendable service in their efforts for maintaining the ecological balance and
also for the preservation of the environment in this part of the world.
51. Let copies of this judgment and order be forwarded to the Secretary,
take necessary steps in this regard immediately. A copy also be forwarded to the
Chairman, BELA.