Bangladesh -- BELA v. Government of Bangladesh and others (WP of 2003) (Tannery Case) (Original Petition)

IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)




WRIT PETITION NO . OF 2003


IN THE MATTER OF:

An application under Article 102 (1) and (2) (a) of the Constitution of the People’s Republic of Bangladesh.


AND

IN THE MATTER OF:

Articles 31 and 32 of the Constitution of the People’s Republic of Bangladesh.

AND

IN THE MATTER OF:

Environment Conservation Act, 1995, Environment Conservation Rules, 1997, Factories Act, 1965, Town Improvement Act, 1953 and the Master Plan for the Dhaka City prepared thereunder, the Industrial Policy, 1999 and the Environment Policy, 1992.

AND

IN THE MATTER OF:

Bangladesh Environmental Lawyers Association (hereafter referred to as BELA), represented by Syeda Rizwana Hasan, Member, Executive Committee and Director Programmes), BELA, an Association registered under the Societies Registration Act, 1860 having its office at House NO. 9, Road No. 8, Dhanmondi Residential Area , Dhaka.
....Petitioner

VERSUS

1. Bangladesh, represented by the Secretary, Ministry of Industries and Commerce, Government of the People’s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna;

2. Bangladesh, represented by the Secretary, Ministry of Environment and Forest, Government of the People’s Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka;
                         
3. The Director General, Department of Environment (DoE), 16-E Agargoan, Sher –E-Banglanagar, Dhaka;
                    
4. The Director, Department of Environment (DoE), Paribash Bhaban, 16-E Agargoan, Sher- E -Banglanagar, Dhaka;

5. The Member (Industries and Energy), Planning Commission, Sher-EBangla Nagar, Dhaka;

6. The Chairman, Rajdhani Unnayan Kartripakkhya, Rajuk Bhaban, Motijheel, Dhaka;

7. The Chairman, Bangladesh Small Cottage Industries Corporation (BSCIC),137-138 Motijheel C/A Dhaka;
     
8. The Chairman, Tanners Association, 99, Hazaribagh, Dhaka-1209;

9. The Chairman, Bangladesh Finished Leather, Leather Goods and Footwear Exporters Association (BFLLFEA), Road No. 2A, House No.61 (ground floor), Dhanmondi R/A, Dhaka-1209.

.... Respondents.


IN THE MATTER OF:

Failure to perform statutory public environmental duties on the part of the respondents and inordinate delay and negligence in arranging for relocation of the tannery industries/ units operating in the Hazaribagh area of the Dhaka Metropolitan City to combat the adverse effects of pollution caused by the tanneries in the Hazaribagh and surrounding areas under the Police Station- Lalbagh, Dhaka.

To,

Mr. Justice Mainur Reza Chowdhury, the Chief Justice of Bangladesh and his companion Justices of the said Hon’ble Court.
The humble petition of the above named Petitioner most respectfully-

S H E W E T H:

1. That the Petitioner, Bangladesh Environmental Lawyers Association (hereinafter referred to as BELA), is an Association registered under the Societies Registration Act 1860, bearing registration No. 1457 (17) dated 18 February, 1992. The petitioner is represented by Syeda Rizwana Hasan, Director (Programmes) and Member, Executive Committee, who has been duly authorized by a resolution of the Executive Committee of BELA dated 30th June, 2001 to represent the Association in legal suits, petitions, proceedings and so on. Photocopy of the certificate of registration of BELA and the resolution authorizing Syeda Rizwana Hasan to represent BELA are annexed hereto and marked as ANNEXURES ‘A’, and ‘A-1’ respectively.


2. That BELA has been active since 1991 as one of the leading organization with proven, documented and well-recognized expertise and achievements in the field of environment, ecology, and relevant matters of public interest. Through its various sincere and devoted endeavors, BELA has by now developed itself into an active and effective institution on environment regulatory framework with widespread recognition and acceptance at all levels. There are many evidences of BELAs’ efforts to promote a sustainable healthy environment and public interest using legal mechanism as the tool.

3. That the respondent No.1 is the Ministry of Industries that, under the Factories Act, 1965 and the Industrial Policy, 1999, has been entrusted with the responsibilities to ensure treatment of industrial effluent/ wastes and to combat the adverse effects of pollution caused by the industries/factories. The Respondent No. 2 is the Ministry of Environment and Forest that has assumed all responsibilities regarding environmental protection and conservation since its creation in 1989 and is the line ministry of respondent Nos. 3 and 4. The respondent No. 3 is the Director General, Department of Environment (hereafter referred to as DoE) and is responsible for implementation of the Environment Conservation Act, 1995 and the rules made thereunder. The said respondent is also responsible to regulate industrial operation through issuance of clearance and subsequent monitoring for compliance. The respondent No. 4 is the Director, Dhaka Division, DoE who is specifically entrusted to ensure compliance with environmental laws in the said division.

4. That the respondent No. 5 is the Member (Industries and Energy), Planning Commission who is responsible for approval of the project titled ‘Tannery Industry Town-Savar, Dhaka’ (hereafter referred to as the said Project) that proposes to relocate the tannery industries of Hazaribagh area in a place called Harindhara under the Savar-Keraniganj Upazila. The said Project proposes to relocate the tanneries from the Hazaribagh area and other parts of the country to a new site and set up common effluent treatment plant and waste dumping yard in that new site. The respondent No. 6, i.e., the Chairman, Bangladesh Small Cottage Industries Corporation (hereafter referred to as BSCIC) has been entrusted with the responsibility of implementing the said project. The respondent No. 7 is the Chairman, Rajdhani Unnayan Kartripakhhya (hereafter referred to as RAJUK) who is responsible for implementation of the Master Plan prepared for the Metropolitan City under the Town Improvement Act, 1953. The respondent Nos. 8 and 9 are associations of tannery owners that represent the units of tanneries operating in the Hazaribagh area of the Metropolitan City.

5. That the address of the petitioner for the purpose of communication and service of notices, summons and other documents is as given in the cause title.

6. That the environment and ecology of Bangladesh, more particularly in the urban areas, are being continuously endangered and threatened by various activities originating from private and public affairs. Amongst the primary causes and sources of environmental degradation, pollution of the ecosystem, surrounding atmosphere and natural resources have exceeded all norms and standards of human cognition. In a large number of cases such grave contamination has been contributed by the careless, selfish and profit seeking attitudes of various industries and factories that defy all applicable law, rules and regulations. Pollution by such industries/factories has been identified as major environmental threat by various scientific studies, research, investigation, reports, survey and so on conducted by various persons, agencies/ institutions, both national and international. In certain severe instances, the concerned agencies of the government have also admitted facts of such pollution and contamination in publications and printed forms. Unfortunately, in a large number of cases, such pollution remain unredressed due to failure by the statutory agencies to ensure compliance with regulatory provisions and protect life, public health, comfort and property of the people.

7. That the tannery industries in the Hazaribagh area of the Dhaka city is a fitting example of such persistent violation of legal provisions and resultant pollution and hazard. The area of Hazaribagh has been identified in the Master Plan for the Metropolitan City of Dhaka prepared by the respondent No. 7 in exercise of its powers under the Town Development Act, 1953 as ‘spontaneous residential area’ with about 84 acres of land used for the noxious tanneries. Established since 1947, the tanneries in Hazaribagh constitute 90% of the total 270 tanneries in Bangladesh. The areas surrounding Hazaribagh are Rayer Bazar, Jigatola, Chorokghata, Sanaton Ghar, Shankar, Sutangang, Kalu Nagar, Kamrangirchar where large concentration of City inhabitants reside faced with the havoc of severe tannery pollution. True copy of the relevant part of the Master Plan identifying Hazaribagh as spontaneous residential area and admitting the fact of pollution caused therein and the surrounding area by the noxious tanneries is annexed hereto and marked as Annexure 'B'.

8. That the unregulated operation of such large number of tanneries within a residential area has been identified by many sources as serious threat to the surrounding environment and public health. A study titled Leather Industry: Environmental Pollution and Mitigation Measures (hereafter referred to as the said Study) conducted by a research organization named Society for Environment and Human Development (hereafter referred to as SEHD) describes the physical look and smell of the area as frightening, intolerable and horrendous. According to the said study the Hazaribagh area accumulates large quantity of solid and liquid wastes in the low land on the west side that is ultimately pumped out on the other side of the Dhaka Protection Embankment, i.e., to the river Buriganga. Such unregulated dumping has caused immense harm to the water quality of the river Buriganga and its aquatic resources that call for immediate remedial measures. Photocopy of the relevant part of the said Study conducted by SEHD is annexed hereto and marked as Annexure ’C’.

9. That according to a survey of UN Food and Agricultural Organization (1991), tanneries all over the country generates 8.47 million litter liquid wastes and 98 MT solid wastes everyday. Out of these, tanneries in Hazaribagh alone generate 7.70 million litter liquid wastes and 88 MT solid wastes everyday. In an inter-ministerial meeting held on 20-08-98 on relocation of tanneries from the Hazaribagh area, the respondent No. ... stated that 15000 cubic meter of untreated chemical wastes from the tanneries of Hazaribagh ultimately goes into the river Buriganga and that 70% of the pollution of the river Buriganga is caused by such wastes. Photocopy of the said meeting dated 20 August, 1998 is annexed hereto and marked as Annexure ‘D’.

10. That a status report of July, 2001 prepared by a committee of the respondent No. 2 has in clear terms admitted the devastating effect of pollution caused by the tanneries of Hazaribagh on the important eco-system of the Buriganga river and its precious aquatic resources. The said report stated that the tannery units in the Hazaribagh area are operating only at the cost of environmental pollution and human health. Photocopy of the said status report prepared by the committee of respondent No. 2 is annexed hereto and marked as Annexure ‘E’.

11. That the River Buriganga has always played a dominant role in the economy of the country because of the water transportation facilities provided by the said River. The River also affected the lives of millions of people who served as fishermen, boatmen and depended on the water body for their livelihood. Like other open water fisheries, the fish stock of this public water body was not only a capital for business but also significantly contributed in meeting the necessary protein intake of a large number of people living around who are the poorest of the poor and traditionally depended on its fish lot. The water of the said River is also used for consumption and other domestic purposes by surrounding people having no alternative water sources. Apart from its historic, socio-economic and material importance, the River has great value from ecological and recreational perspectives.

12. That unfortunately the existence of the River Buriganga is posed to serious threat by the discharge of hazardous tannery wastes into its water. In the absence of alternative, large number of surrounding people use the contaminated water of the River for daily consumption and other essential needs at the cost of their health. Moreover, the polluting substances being deposited on the bed of the River has raised the level of the river-bed high impeding dangerously the inland navigation. Photocopies of paper clippings reporting such disastrous condition of the Buriganga river are annexed hereto and marked as Annexure ‘F.

13. That in addition to such unregulated disposal of liquid and solid wastes, strong odour in the air of Hazaribagh and surrounding areas perhaps needs no evidence to anyone present there. People residing around the tannery areas are severely affected by the foul air of the Hazaribagh tannery units that also affects their property including house shed, walls, gold and other metals and so on. The tannery pollution has also exposed the residents of Rayerbazar, Zigatala, Keraniganj and the southern part of Savar to various health hazards. Photocopy of relevant part of the Study conducted by SEHD and newspaper clippings reporting on the deadly atmospheric pollution created by the tanneries in Hazaribagh are annexed hereto and marked as Annexures 'G' and G1.

14. That the environment inside the tannery factories is unwholesome. Unregulated use of chemicals like sodium sulfide, sodium metabisulfite, sulfuric acid, basic chromium sulfate, acid dyes, basic dyes, formic acid and so on used in the tanneries are extremely harmful to human health and expose the unprotected tannery workers to high health risk. The study conducted by SEHD has picturized some examples of affected tannery workers. Newspapers have also reported on such incidents of pollution and resultant health hazards to the tannery workers. True copy of relevant part of the Study conducted by SEHD and newspaper clippings reporting on health hazard of tannery workers are annexed hereto and marked as Annexures 'H and H-1'.

15. That considering the graveness of the pollution, the Master Plan for the City of Dhaka as prepared by the respondent No. 7 has recommended for relocation of Hazaribagh tannery (Annexure ‘B’).

16. That the issue of relocation of the tannery units from the residential areas of Hazaribagh has also been discussed several times at the decision making level of the Government with no concrete result as yet. Available records suggest that a meeting was held on 31 July, 1991 at the office of the respondent No. 1 with the shifting of tannery industries as the main agenda. The meeting disclosed that the first decision to shift the tanneries to an area called Kantchpur under Demra Police Station was abandoned following protest from the local people. It was also revealed in the meeting that subsequently a 4-member committee headed by the respondent No. 1 was given the responsibility to find out an alternative place for relocation of the tanneries. The said committee selected a place near Sonargaon Upazila with 400 acres of land and the respondent No. 6 was made responsible to draft a proposal with detailed plans of relocation. True copy of the proceedings of the said meeting dated 31-07-91 is annexed hereto and marked as Annexure 'I'.

17. That the meeting dated 31 July, 1991 rejected the proposal of the respondent No. 6 for being faulty. Instead, following opinion of the respondent No. 3 the meeting entrusted the respondent No. 1 with the responsibility to undertake a survey on the feasibility of establishing an effluent treatment plant (hereafter referred to as ETP) for proper discharge of wastes by the tanneries.

18. That in the subsequent meeting dated 7 August, 1991 held under the chairmanship of the respondent No. 1, the opinion of the respondent Nos. 8 and 9 was sought on the issue of relocation of the tanneries from Hazaribagh to Sonargaon. The said respondents consented to relocation to Sonargaon on condition that the place be made fit for industrial operation under government supervision. The later however preferred ETP rather than relocation. True copy of the proceedings of the said meeting dated 07-08-91 is annexed hereto and marked as Annexure 'J'.

19. That after a considerable break, a meeting was held at the office of the respondent No. 1 on 20 August, 1998 to discuss the issue of relocation of the tannery units from Hazaribagh. The meeting was informed of a prior decision of 1993 to shift the tanneries of Hazaribagh to Savar for which acquisition of 17.30 acres of land in Savar also started. True copy of the proceedings of the said meeting dated 20-08-1998 is annexed hereto and marked as Annexure ‘K’.

20. That in was also shared in the said meeting of 20 August, 1998 that the 11th meeting of the Board of Investment held on 15 April, 1998 with the then Prime Minister as the chair decided to shift the tanneries from the Hazaribagh areas. To this effect the meeting dated 15 April, 1998 required the respondent No. 1 to take necessary measures to this effect in consultation with other ministries. True copy of the proceedings of the said meeting dated 15-04-98 is annexed hereto and marked as Annexure ‘L’.

21. That the said meeting dated 20 August, 1998 (Annexure ’K’) recorded the fact that since 1989 a series of discussion/decisions have been taken at the higher level with regard to relocation of the tanneries from Hazaribagh, but of no effective result. In the said meeting the respondent No. 9 reiterated on the need of having an ETP in the tannery area of Hazaribagh while the respondent No. 3 emphasized on relocation of the tanneries from the Hazaribagh area.

22. That in the said meeting dated 20 August, 1998 (Annexure ‘K’) the respondent No. 1 was once again given the responsibility to find out a suitable place for relocation of tanneries and prepare an econo-technical survey in this regard. It was also decided to take initiative to set up an ETP in the tannery area and in this regard speed up implementation of the technical proposal submitted to the Planning Commission, i.e., respondent No. 5 by the respondent No. 3.

23. That in a subsequent meeting held on 18 November, 1998 in the office of the Ministry of Commerce reference was made to the decisions taken in the meeting dated 15 April, 1998 (as of Annexure 'L') and 20 August, 1998 (Annexure 'K') that reiterated the decisions taken in the said earlier meetings favouring relocation of tanneries from the Hazaribagh.

24. That in a meeting between the Hon’ble Prime Minister and the respondent nos. 8 and 9 on 11 November, 2001, the Hon’ble Prime Minister conveyed her decision to relocate the tanneries from Hazaribagh to a suitable place for the sake of public health. The Hon’ble Prime Minister while inaugurating International Leather Fair on 27 January, 2002 once again reiterated the need for relocation of the tanneries from Hazaribagh in consideration of public health and future of the nation. True copy of newspaper clipping reporting on assurances from the Hon’ble Prime Minister for relocation of the tanneries from Hazaribagh are annexed hereto and marked as Annexure ‘M’.

25. That a meeting dated 14 February, 2002 held at the office of the respondent No. 1 to discuss the issues of relocation of tanneries from Hazaribagh duly emphasized on the negative impact of unplanned tannery operation on the water bodies, public health and environment of the surrounding areas. It recorded the commitment of the Hon'ble Prime Minister to relocate the tanneries of Hazaribagh to a suitable place outside the City of Dhaka and also the fact that the residents of the area and other national and international environmental NGOs have for long been demanding such relocation. True copy of the minutes of the said meeting dated 14-02-02 is annexed hereto and marked as Annexure ‘N’.

26. That in the said meeting dated 14 February, 2002 the respondent Nos. 8 and 9 ultimately communicated their consent to relocation of the tanneries in an industrial town outside the City of Dhaka and in this respect suggested a place near Gazipur-Kaliakoir or to any other suitable place. The respondent No. 1 said that in developing an industrial town for the tannery, the government shall also establish therein a Common Effluent Treatment Plant (CETP) as its own cost.

27. That the meeting dated 14 February, 2002 stated that the shifting of the tanneries may be expensive yet in public interest and for protection of the environment the same will be done even if no foreign assistance is available for the same. The meeting took some important decisions that include, amongst others, the followings:

1. Formation of an inter-ministerial steering committee with representation from the respondent Nos. 1, 3, 5, 8 and 9 and the respondent No. 1 as the convenor to:

a. select the proposed Gazipu/Kaliakoir site or other suitable site by the Dhaka-Chittagong highway for relocation
     
b. Decide on a work module for relocation of the tanneries in phases

2. Signing of a memorandum between the government and the tannery owners giving consent for relocation

3. Preparation of a project concept paper in light with recommendations from the steering committee and so on.

28. That in a subsequent meeting held on 16 March, 2002 at the office of the respondent No. 2, the previous decisions in favour of relocation were discussed and reiterated. In the said meeting the respondent No. 8 while arguing in favour of the suggested spot in Gazipur disclosed that out of the proposed 1000 acres of land in Gazipur, 850 acres belong to forest department and the rest are owned by private citizen. All the respondents, however, opined in favour of relocation and it was decided to speed up relocation process. The meeting also decided to set up an inter-ministerial committee to decide on ways and process for relocation with no reference to the earlier inter-ministerial steering committee (Annexure ''). True copy of the minutes of the said meeting dated 16-03-02 is annexed hereto and marked as Annexure ‘O’.

29. That the first meeting of the inter-ministerial steering committee (as formed in furtherance of meeting decision dated 14 February, 2002) was held on 30 March, 2002 at the office of respondent No. 1. The meeting highlighted the contradictions between the concerns of the local people in Koliakoir, respondent No.5 and the assertion of the respondent Nos. 8 and 9 on suitability and size of the said place proposed for relocation of tanneries. The said meeting constituted a sub-committee to visit the proposed site in Kaliakoir or find another suitable place by the Dhaka-Chittagong highway and also to prepare a Project Concept Paper (PCP). The sub-committee comprised of respondent Nos. 1, 2, 3, 6, 8 and 9 was required to submit its report following 15 days. True copy of the said meeting minutes dated 30 March, 2002 is annexed hereto and marked as Annexure ‘P’.

30. That since then several news media reported on protest from the local residents of the proposed site in Kaliakoir. Referring to the offices of respondent Nos. 1 and 6, a news item published in a national daily dated 14 August, 2002 further claimed that Savar has finally been selected as the site for relocation and that a tripartite agreement of understanding to that effect was due to be signed between the respondent Nos. 6, 8 and 9 on 15 August, 2002. For reasons best known to the respondents, this Memorandum of Understanding (MOU) was finally not signed. True copy of the said news items reporting on protests from local residents of Kaliakoir and the memorandum of understanding are annexed hereto and marked as Annexure ‘Q’.

31. That it would be evident from the above facts that the issue of relocation of the polluting and hazardous tannery units from the Hazaribagh area to a suitable place has been discussed time and again by the respondents who all agreed and consented for relocation. The chief executives of the country have given commitments several times for relocation of the tanneries from the Hazaribagh area but the actual process for relocation has not started as yet. Instead the respondents have miserably failed to translate their words into action and the tanneries in Hazaribagh area continue to operate regardless of environmental and health consideration of the surrounding populace.

32. That in its relentless effort to protect the environment from all sources of pollution the petitioner filed an application being Writ Petition No. 891 of 1994 before this Hon'ble Court. The said application of the petitioner sought direction against the statutory authorities including respondent Nos. 1, 2, 3 to implement their decision dated 5 June, 1986 reference being EPC/8.1/4C-1/85/419 and require existing industries to adopt pollution control measures. The decision of the respondents was taken following identification of 903 industries that included 175 tanneries form the Hazaribagh.

33. That the judgment of the Hon'ble Court dated 15 July, 2001 directed the respondents to ensure that industrial units and factories that come within the classification of 'red' under the Environment Conservation Rules, 1997 must adopt adequate and sufficient measures to control pollution within one year from the date of receipt of the judgment. The judgment of the Hon’ble Court in Writ Petition No. 891 of 1994 categorically directed that tannery units of Hazaribagh, falling under the ‘red’ category of industries/projects should undertake appropriate mitigation measures. Although the Hon’ble Court directed the respondents including respondent Nos. 1, 2 and 3 to report on compliance to the Hon’ble Court within six weeks thereafter, no such report has as yet been filed. A copy of the relevant portion of the judgment of the Hon'ble Court dated 15-07-01 is annexed hereto and marked as Annexure 'R'.

34. That it is humbly submitted that operation of the tanneries in the residential area of Hazaribagh and with no effective pollution fighting devices is continuing in flagrant violation of the legal provisions the Environment Conservation Act, 1995 (Act No.1of 1995), Environment Conservation Rules, 1997, Factories Act, 1965 and Town Improvement Act, 1953. Such unregulated operation of the tanneries pose serious threat to peoples' constitutional right to life, their comfort, health, safety and sound environment and is also violative of the recommendations of the Master Plan, related policies on industry and environment and the judicial pronouncement dated 15 July, 2001.

35.     That it may be mentioned here that such unregulated and indiscriminate violation of environmental laws and serious environmental pollution caused by tannery units located in Hazaribagh is likely to cause serious repurcation in the foreign earnings from the leather sector as well as the importers of the leather goods are mainly North America and Europe where importation from non-complying countries is seen as “undue exploitation”.

36. That it is stated that pollution from the tannery industries/ factories have occurred due to violation or non-compliances with the requirements of the Environment Policy, 1992, The Environment Action Programme of 1992 (appended with the National Environment Policy as its integral part), the Bangladesh Environment Conservation Act, 1995, the Environment Conservation Rules, 1997. The Factories Act, 1965 dealing with “disposal of wastes and affluent” that states in sub section (1) “Effective arrangement shall be made in every factory for the disposal of wastes and affluent due to the manufacturing process carried on therein” and one of the main object of the Industrial Policy, 1999 is to set up a pollution free Industrialization (Chapter II Article 2.12). It is the statutory duty of the respondents to protect environment and environmental recourses to maintain and restore the same in a manner favorable to the objectives of the law and policy. The cumulative, synergistic and consequential effects of the said failures of the respondents have resulted in the denial of the fundamental rights of the people guaranteed under Article 32 and 32 of the Constitution and in other law of the land.

37. That it is respectfully submitted that the respondents have totally failed to perform their statutory and constitutional duties towards the citizens as guaranteed under the Constitution of People’s Republic of Bangladesh under Article 31 and 32. The protection and safety of the people living within the territory of Hazaribagh and concerned area and also for the protection of public properties and recourses like water. Almost the total population of Hazaribagh and concerned area directly and causally is facing the risk to their life and health due to the aforesaid discharge of tannery wastes into water bodies destroying the aquatic flora and fauna especially the habitat of fish that provides 90 percent of animal protein to the people and that such lethal pollutants ultimately get into human body system causing diseases, deaths and sufferings.

38. That it is submitted that the serious pollution is also being caused by many tannery industries without having any or adequate pollution control/ protection measures which the respondents are duty bound to ensure not only by the said recommendation of Metropolitan Development Plan (1995-2005), decision adopted by the National Environment Committee 2nd Meeting of 1997 but also under the prevailing laws, rules, regulation, orders, policies etc. Because of the severe contamination of the life supporting water resources with toxic pollutants from tanneries units the risk of communicable disease is far higher and a large number of population is also being put to a great risk of life and health and the lands being degraded due to soil contamination from the polluting tannery units. The fact that the identified tannery factories severely polluting the environment threatening the life and ecology in Bangladesh has been reported in the media.

39. That the petitioner, being seriously concerned and aggrieved by the failures of the respondents in the performances of their statutory obligations and the implementation of the decisions published through the impugned notification, issued a Notice of Demand for Justice on 26 August 2002. The notice was served upon the respondents by the special messenger, but only one e.i respondent no.7 has replied, other have not 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. True copy of the said Notice of Demand for Justice dated 26 August 2002 and reply from the respondent No. 7 dated 13 October 2002 are annexed hereto and marked as Annexures ”S and S-1” .

40. That the failure of the respondents to take effective measures in implementing the content and spirit of the said impugned notifications and other relevant laws orders and policies 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. The tanneries identified as polluters in the impugned notification having flagrantly acted in contravention to the decision contained in the said notification frustrated the efforts of the Government to combat ecological imbalance, which was the duty of the respondents under the law to maintain.

41. That in view of the Dhaka Metropolitan Development Plan (1995-2005), decision adopted by the National Environment Committee (2nd meeting) dated 04-05-1997 and assurance given by Prime Minister and the Environment and Forest Minister, it is very much clear that decision had already been taken to build ‘tannery village’ at any appropriate place outside Dhaka shifting tanneries from Hazaribagh, by now more than five years have elapsed but all efforts went in vain. Therefore, it is in utmost public interest that this Hon’ble Court may kindly intervene to protect the interest of public and fundamental rights of the citizen

42. That it is in the greatest interest of the Nation and the public that decisions of the government, orders and other provisions of laws 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 and when polluters are identified, as has been done in the impugned notification, they have to be strictly enforced or else in future neither any such polluters would pay any heed to such decision and the laws and 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.

43. That to implement the decision of the Government within the shortest possible time in the interest of environmental conservation including the rights of the people and to assists the Hon’ble Court in deciding the most technically/ scientifically realistic time frame for appropriate pollution control/protection system or any other measure, the respondents should be required to prepare and submit an updated list of polluting tannery factories so that the Hon’ble Court may take a suitable and realistic decision on the issue of such pollution control in Hazaribagh and concerned area without any discrimination between existing or old tanneries factories and new tannery factories.

44.     That it is manifestly clear from the above that the Government has not been acting diligently and in their decision making process lack of commitment and transparency is causing further deterioration of environment in the surrounding areas and causing continuous degradation of environment as such they have miserably failed to perform their statutory duty imposed under the Environment Protection Act, Environment Conservation Rules, Factories Act and Town Improvement Act.

45.     That it is submitted that lack of co-ordination among the respondents in ensuring compliance with the laws and regulations and persistent failure to reach a conclusive decision regarding the relocation area is causing serious damages to the residents of Hazaribagh and surrounding ecology including Buriganga as such appropriate direction upon the respondents to secure expeditious re-location of tannery undertakings is imperative for the interest of public and environment.

46.     That it is submitted that the respondents failure to implement their decision for relocation of tannery undertakings from Hazaribagh has created a situation that the factories now operating in this area are being allowed to continue their hazardous activities in total disregard of the Environment Conservation Rules.

47.     That it is submitted that while the respondents are delaying in taking a firm decision regarding relocation of tannery undertakings at the same time they have not been taking any protective measures to prevent continuous pollution of environment by the tannery factories located in Hazaribagh and such negligence in securing compliance with the mandatory provisions of the Environment Conservation Rules amounts to gross violation of the respondents statutory duty and denial of public rights to be treated in accordance with law.

48. That it is stated that despite specific penal provision for non-compliance with the requirement of the provisions of the Factories Act, Environment Conservation Act the respondents have not been taking any action for prevention of such non-compliance and also not taking any step to ensure compliance with the provision of the Environment Conservation Rules and the Factories Act and such persistent failure to take action against the wrongdoers and perpetual failure to secure compliance by the tannery undertakings in Hazaribagh on the part of the respondents amounts to non-compliance with the provisions of the Environment Conservation Act and denial of the fundamental rights of the workers in those factories and the public at large.

49.     That it is submitted that the respondents’ in ordinate delay in implementing the decision of relocation of tannery industries from Hazaribagh and culpable failure to secure compliance with the provisions of the Environment Conservation Act, Environment Conservation Rules an the Factories Act and negligent failure to take any penal action against the factories which have not set up any affluent treatment plant in compliance with the Environment Conservation Rules amounts to denial of the fundamental rights of the peoples of Hazaribagh area and public at large as guaranteed under Articles 27 and 31 of the Constitution.

50. That the petitioner, being a public interest litigant and not being in possession of all original documents, begs permission from this Hon'ble Court to allow the filling of photocopies as Annexures.

51. That the petitioner is committed to the cause of environment protection, conservation and management and is duty bound to protect public property and uphold public interest using legal and any other lawful mechanisms as tool.

52. 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 lack of co-ordination among the respondents in ensuring compliance with the laws and regulations and persistent failure to reach a conclusive decision regarding the relocation area is causing serious damages to the residents of Hazaribagh and surrounding ecology including Buriganga as such appropriate direction upon the respondents to secure expeditious re-location of tannery undertakings is imperative for the interest of public and environment.

II.     For that the failure of the respondents to implement their decision for relocation of tannery undertakings from Hazaribagh has created a situation that the factories now operating in this area are being allowed to continue their hazardous activities in total disregard of the Environment Conservation Rules.

III.     For that while the respondents are delaying in taking a firm decision regarding relocation of tannery undertakings at the same time they have not been taking any protective measures to prevent continuous pollution of environment by the tannery factories located in Hazaribagh and such negligence in securing compliance with the mandatory provisions of the Environment Conservation Rules amounts to gross violation of the respondents statutory duty and denial of public rights to be treated in accordance with law.

IV. For that despite specific penal provision for non-compliance with the requirement of the provisions of the Factories Act, Environment Conservation Act the respondents have not been taking any action for prevention of such non-compliance and also not taking any step to ensure compliance with the provision of the Environment Conservation Rules and the Factories Act and such persistent failure to take action against the wrongdoers and perpetual failure to secure compliance by the tannery undertakings in Hazaribagh on the part of the respondents amounts to non-compliance with the provisions of the Environment Conservation Act and denial of the fundamental rights of the workers in those factories and the public at large.

V.     For that the respondents’ in ordinate delay in implementing the decision of relocation of tannery industries from Hazaribagh and culpable failure to secure compliance with the provisions of the Environment Conservation Act, Environment Conservation Rules an the Factories Act and negligent failure to take any penal action against the factories which have not set up any affluent treatment plant in compliance with the Environment Conservation Rules amounts to denial of the fundamental rights of the peoples of Hazaribagh area and public at large as guaranteed under Articles 27 and 31 of the Constitution.

VI. For that the unlawful acts of the Respondents and their failure to enforce law and to perform their legal duties effectively have resulted in detrimental action and omission to the life, body and property of the surrounding people and is affecting the environment of the City dwellers threatening their right to life guaranteed by Articles 31 and 32 of the Constitution respectively and the some other legislation in Bangladesh amply provide the guidelines to the authority to control effectively the pollution in Bangladesh, but the respondents have neglected their constitutional and statutory duty to maintain quality of environment and hence appropriate direction and order from this Hon'ble Court is necessary.

VII. For that the Petitioner is seeking appropriate order and direction from this Hon'ble Court to save the City Dwellers and River Buriganaga and its invaluable aquatic resource and thus protect the eco-system and environment of the City and neighborhood to uphold public interest, public health and for public duty under the law and the Constitution, and hence this application is submitted before this Hon'ble Court.


WHEREFORE it is most humbly prayed that your Lordships may graciously be pleased to:

a) Issue a rule Nisi calling upon the respondents to show cause as to why they should not be directed to relocate, within a given time frame, the tannery units from the Hazaribagh area of the City to a suitable location/site as contemplated in the Master Plan prepared under the Town Improvement Act, 1953 and ensure that adequate pollution fighting devices are developed in the new location/site as required under the Environment Conservation Act, 1995 and the Factories Act, 1965 and the rules made thereunder;

b)     after perusing the cause, if any, shown and hearing the parties make the Rule absolute;

c)Pending hearing of the Rule, pass an order directing the respondents to (i) complete, within 2 (two) months the process of site selection for relocation of the tanneries from Hazaribagh to a suitable location/site; (ii) develop, within six months from the date of the order, a time bound work module for such relocation in new site ensuring adequate safety and pollution control devices therein in line with the requirements of the Environmental Conservation Act, 1995, the Factories Act, 1965 and the rules made under the said Acts; (iii) implement the said work module within such time as may be fixed by this Hon’ble Court; and (iv) submit periodic reports of compliance with the directions of the Hon’ble Court;

d) Award costs in favour of the petitioner and against the respondents;

e) pass such other or further order or orders to which the petitioner is entitled in law and equity as Your Lordships may seem fit and proper

And for this act of kindness your petitioner as in duty bound shall ever pray.

AFFIDAVIT

I, Ms. Syeda Rizwana Hasan, wife of Abu Baker Siddique of House No. 9,Road No.8, Dhanmondi R/A, P.S. Dhanmondi, Dhaka, Aged about 32 years, by profession Lawyer ,by Nationality Bangladeshi, do here by solemnly affirm and say as follows :

1. That I am Director (Programmes) and Member of Executive Committee of ‘BELA’ 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 beliefs
Prepared in my office.

( M IQBAL KABIR) ( Sayeda Rizwana Hasan)
ADVOCATE DEPONENT

The deponent is known to me and identified by me.

(M. IQBAL KABIR)
           Advocate

Solemnly affirmed before
by the said deponent on
this the------day of
February, 2003 at---- a.m.


COMMISSIONER OF AFFIDAVITS,
SUPREME COURT OF BANGLADESH,
HIGH COURT DIVISION, DHAKA.