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Parks
and open spaces cannot be converted
into residential plots
High
Court Division (Special Original Jurisdiction)
The Supreme Court of Bangladesh.
M Saleem Ullah, Advocate and others (Petitioners)
Vs
Bangladesh, represented by the Secretary, Ministry Housing and
Public Works and others (Respondents)
Before Mr. Justice MM Ruhul Amin and Mr Justice Md Bazlur Rahman.
Date of judgement: July 2nd, 2002.
Background
MM Ruhul Amin J : This Rule Nisi was issued calling upon the respondents
to show cause as to why the revised plan, of section 12, Block-A, Mirpur
Housing Estate, Dhaka (Annexure B) converting the vacant space known as
"Lal Math" situated between Road No. 3 and Road No. 4, at Block
A, Section 12, Mirpur Housing Estate under Police Station Pallabi, Dhaka
into residential plots, community centre and police station should not
be declared to have been made without lawful authority and of no legal
effect and why they should not be directed to develop the same vacant
space as a park and/or such other or further order or orders passed as
to this court may seem fit and proper.
Facts
in brief
The case of the petitioners, inter alia, is that the then Government of
erstwhile East Pakistan developed the vast Mirpur area into residential
plots and nucleus house for a residential estate in 1960s and utilised
the vast vacant land at sections 1, 2, 6, 7, 10, 11 and 12 under the master
plan approved under the Town Improvement Act, 1963 (EB Act XIII of 1953)
without damaging quality of playgrounds, parks and open spaces. The Block
A of section 12 Mirpur has 163 plots with a park in between Road No. 3
and Road No. 4. This park is popularly known as "Lal Math".
The residents of the area and Pallabi area stroll there every morning
and evening, the children and youths play there and the people congregate
there on two Eid occasions. The petitioners except the petitioner. Nos.
1 and 10 took lease for a period of 99 years of plot Nos. 120, 127, 130,
131, at Road No. 3, Block A, plot No. 150 at Road No. 2, Section 12, Mirpur
Housing Estate, PS Pallabi, Dhaka and attached to their conveyance deeds
are the site plans that show the topography of the site, i.e. plots, nucleus
houses, roads, parks, open space, etc thus showing topographical positions
of the newly developed township.
It is stated that the Town Improvement Act 1963 provides a legal basis
for open space for purposes of ventilation and recreation and the parks
or open space accordingly provided in the site plan Annexure A, A-1) reflect
the scheme of the Master Plan. The petitioners are owners/lessees in possession
and users of different plots namely plot Nos. 120. 124, 127, 130 at Road
No. 3, plot Nos. 108, 110, 112, 116 at Road No. 4, all of Block A, Section
12, Mirpur Housing Estate and all of them have built thereon multi-storeyed
residential houses providing habitats for thousands of people.
The petitioners and the residents of the area have protested publicly
by bringing out processions and making representations when a portion
of the park, known as Lal Mat was illegally converted into a community
centre, under the impugned revised part 1/5 layout plan of Section 12,
Block A approved by the Chief Engineer, Housing and Settlement Directorate,
Government of Bangladesh.
It appears from the Layout plan that the said park known as Lal Math has
been divided into 52 small plots with 60m wide road in between the two
blocks showing the proposed building of Pallabi Police Station and a community
centre and remaining plots to be leased out to 31/32 persons thus completely
degrading the quality of environment necessary for the health and well-being
of the people of the area. The Government-respondent has most illegally
constructed a community centre at the extreme east of the park blocking
considerable space and is about to embark on further construction of the
buildings for police station and residential houses on the plots earmarked.
The respondents have constructed a double-storied community centre in
the extreme east of the park in question.
Deliberation
We have heard Mr. MI Farooqui the leanred Advocate for the petitioners
and Mr. AJ Mohammad Ali, the learned Additional Attorney-General with
Mr Karunamoy Chakma, the learned Assistant Attorney-General appearing
for the respondent No.3
It is undisputed that the land in between Road Nos. 3 and 4 of Block A.
Section 12, Mirpur Housing Estate was shown as vacant space in the site
plan of residential area at Mirpur Housing Estate, Dhaka vide enclosure
Annexure A to the writ petition. Mr Farooqui submits that it is also undisputed
that this vacant space was meant for a park which will serve as window
to the residents of the locality and, as such, the Government in violation
of the provision of Town Improvement Act and fundamental right cannot
convert the same into residential plots and allot the same to others and
also cannot construct community centre and police station in the vacant
space which is meant for a park.
The learned Advocate further submits that the impugned plan suggesting
conversion of the park known as Lalmath of Mirpur Housing Estate into
community centre, police station and residential plots completely blocking
the open air space and degrading the quality of environment in the area
and neighbourhood necessary for the health and well-being of the citizens
has infringed the fundamental right of the petitioners and other residents
to life, which cannot flourish and survive without healthy ecosystem of
the area.
It is also submitted that the right of life under Articles 31 and 32 of
the Constitution of Bangladesh is fundamental to all fundamental rights
guaranteed under the Constitution of the republic and that right to life
includes, among others, right to adequate standard of living, right to
health, care, right to have unpolluted air and noise. It is also submitted
that the terms of the deeds of lease, with the provisions of the Building
Construction Act 1952 (EB Act XIII of 1953) ensure that the topography
containing open space for recreation, etc will be ensured.
Mr. Farooqui in support of his contention cited the case of Rajdhani Unnayan
Kartipakhya and another vs Mohshinul Islam and another, reported in 53
DLR (AD) 79 and submits that in that case it was held that conversion
of parks and open spaces enjoyed by allottees of a plan township cannot
be converted as residential plots. Conversion of such open spaces and
parks into residential plots is not an improvement by any means and therefore
exercise of such power is contrary to the purpose for which it is conferred
under the Town Improvement Act, 1953.
He lastly, cited the case of Dr Mohiuddin Farooque vs Bangladesh and others,
reported in 48 DLR 438 and submits that in that case it was observed that
if the right to life under Articles 31 and 32 of the Constitution means
right to protection of health and normal longevity of an ordinary human
being endangered by the use or possibility of use of any contaminated
foods, etc then it can be said that fundamental right of right to life
of a person has been threatened or endangered. In that case it was further
observed that state is bound to protect the health and longevity of the
people living in the country as right to life guaranteed under Articles
31 and 32 of the Constitution includes protection of health and normal
longevity of a man free from threat is justified by law. It as further
observed that right to life under the aforesaid Articles of the Constitution
being a fundamental right it can be enforced by this court to remove any
unjustified threat to the health and longevity of the people as the same
are included in the right of life.
In view of the above decisions, especially in view of the case reported
in 53 DLR (AD) 79, the learned Additional Attorney-General found it difficult
to support the case of the respondent No. 3. The learned Additional Attorney-General
frankly submits that the principle of law enunciated in 53 DLR (AD) 79
is fully applicable in the present case.
Decision
For the reasons and discussion above, we are of the view that the action
of the respondents in converting the open space meant for park in between
Road Nos. 3 & 4 of Block. A Section 12 Mirpur Housing Estate and known
as Lal Math into residential plots is without any lawful authority as
the same is violative of fundamental right and detrimental to the health
and well-being of the people of the area.
In the result, the Rule is made absolute in part. The revised plant part
1/5 layout plan of section 12, Block A, Mirpur Housing Estate, Dhaka (Annexure
B) converting the vacant space known as 'Lal Math' situated in between
Road Nos. 3 and 4, Block A, Section 12, Mirpur Housing Estate under Police
Station Pallabi, Dhaka into residential plots and police station is hereby
declared to have been made without any lawful authority and to be of no
legal effect.
MI
Farooqui with Md Ruhul Quddus, Md Abdul Mannan Khan, Advocates for the
petitioners and Attorney-General with Karunamoy Chakma, Assistant Attorney-General
for the respondents.
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