Human Rights Advocacy
Cutting of hills: Lack of law or lack of law enforcement?
Barrister M. Omar Bin Harun Khan
The recent tragic land sliding incident in Chittagong and some other parts of Bangladesh has reawakened attention to the issue of illegal hill cutting in our country. Massive hill cutting by powerful individuals or organisations, both from public and private sectors for commercial and non-commercial purposes, took a grave turn in recent years in more than one city and district of Bangladesh, threatening environment, natural beauty and bio-diversity of the land having wonderful geographical uniqueness. This hill cutting is going on in full swing even at the expense of the human lives!
The government has imposed restriction on hill cutting without permission and directed the authorities concerned to strictly execute the Building Construction Act, 1952. Despite the fact that hill cutting without proper legalisation is banned, the activity goes on without fear of reprisal and, in some cases, with the law enforcers working as accomplices.
The Building Constriction Act was enacted in 1952, which was given effect from 21.03.1953, with a view to preventing haphazard erection of buildings, excavation of tanks and cutting of hills and hillocks in Bangladesh. Initially the Act did not contain any specific provision for the cutting of hills. But later on after realising the momentous of this issue, the government amended the 1952 Act twice in 1987 and in 1990. In the Building Construction (Amendment) Act of 1990, amongst other, section 3C and 3D were inserted into the 1952 Act.
As per section 3C of the Act no person shall without the previous sanction of the authorised officer cut or raze any hill. As per this section no such sanction shall be granted unless the authorised officer or such other authority as the government may specify is satisfied that-
(a) the cutting or razing of the hill shall not cause any serious damage to any hill, building, structure or land adjacent to or in the vicinity of the hill, or
(b) the cutting or razing of the hill shall not cause any silting of or obstruction to any drain, stream or river, or
(c) the cutting or razing of the hill is necessary in order to prevent loss of life or property, or
(d) the cutting of the hill is such as is normally necessary for construction of dwelling house without causing any major damage to the hill, or
(e) the cutting or razing of the hill is necessary in the public interest.
Being empowered under section 18 of the Act, the government formulated the Building Construction Rules 1996 with specific provision regarding the permission procedure for cutting of hills. The said Rules contain the application procedure for the approval of cutting of hills and the fee structure for the same. Rule 27 states that in addition to the fees, designs as required under the Rules, the applicant must also submit the following documents:
(a) clearance or NOC from the environment department;
(b) topographical or contour map of the hill;
(c) detailed design showing all the necessary development plan, protective measures etc;
However, to the greatest surprise it has been found that in many occasions the Environment authority responsible for giving the clearance, gives the clearance in exchange of bribes or because of political or other pressures and/or because of personal connections, completely disregarding the environmental impact of giving such clearance. On most of the occasions, the hill cutters do not obtain any clearance at all from the authority and in very few of the cases the authority takes actions against them.
After receiving the clearance from the environment authority, when the application is made to the authorised officer, the same incident of corruption takes precedence over the operation of law. Thus, the whole process becomes corrupt and handicapped. Permissions are given not as per the law but by being directed by other improper and illegal motives and for ensuring the unjust enrichment of some vested groups.
The Act not only contains the permission procedure and criteria but also contains specific provisions for punishment and legal actions against the persons transgressing the law. As per section 3D, the authorised officer can serve a show cause notice to any person who is cutting hills illegally. According to section 10A of the 1952 Act, if the authorised officer has reason to believe that someone is cutting the hills without permission or someone is violating the terms of the permission, he may seize all the vehicle, instrument, material used for cutting the hills and may get the person arrested by a police officer without warrant. Furthermore, violation of section 3C is an offence punishable with upto seven years' imprisonment. Thus ample powers have been bestowed on the authority to ensure legal compliance. In Chittagong, so far the Chittagong Development Authority (CDA) has filed only a few cases against some of its officers and against some of the illegal hill cutters, but most of which do not see any day light for different unknown (!) reasons. Thus and so corruption has always been taking precedence over the legal provisions. In collusion with the law enforcing agencies and the responsible persons of the concerned authority, the culprits remain beyond the reach of the law. Following the recent incident in different newspaper reports published recently, we have come to know that though important hills were demolished authorities did not take any effective steps against the violators, other than some eye-washing legal actions. In Chittagong, Khulsi, Panchlaish, Nasirabad, Baizid, Lalkhan Bazar, Foy's Lake, Oxygen, Hathazari and Sitakunda have been the worst affected areas where hill cutting still continues. Journalists have also published their repots after physically visiting the affected areas and found that many earth-loaded trucks were seen moving towards their destinations in the dark of night. Hills were usually being razed and leveled after midnight as influential persons and some dishonest law enforcers were seen assisting the hill cutters in the cover of the night.
Isn't it now crystal clear that it is not the deficit or insufficiency of law rather the non-application of law and corruption of some government servants, law enforcing personnel coupled with the greed of unscrupulous persons of the country are responsible for the illegal hill cutting? Consequently, can we only blame the nature for causing the death of hundreds of people in Chittagong or shall we raise our fingers to the actual culprits?
Proper and effective measures should be taken to create examples for the future and to stop any such incident from occuring in the future. Already different NGOs, concerned and conscious citizens are effecting some movements and demonstrations, and media is playing a vigorous role in this regard as well. But like in the past and alike most of the issues in Bangladesh, let not this hope that the issue of illegal hill cutting be pushed under the carpet until the occurrence of another tragic incident.
The writer is practicing in the Supreme Court.