IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

( SPECIAL ORIGINAL JURISDICTION )

WRIT PETITION NO. 891 OF 1994

IN THE MATTER OF :

Dr. Mohiuddin Farooque

...Petitioner
-Versus-
Government of Bangladesh and others
... Respondents.

Syeda Rezwana Hasan with

Mr. M. Iqbal Kabir, Advocates
... For the Petitioner
Mr. Mustafa Zaman Islam, D.A.G.
... For the respondents.
Mr. Justice A.B.M. Khairul Haque
And
Mr. Justice Md. Mamtaz Uddin Ahmed
The 23rd June, 2009

ORDER

In this matter earlier on the application of Bangladesh Environmental Lawyers

Association (BELA), a Rule was issued on 6.6.1994 in respect of pollution in

Bangladesh. The Rule was made absolute by the judgment and order dated 15.5.2001.

Although it was directed in the above quoted judgment that the Director General,

Directorate of Environment, the respondent no. 4, would ensure that the industrial units

and the factories which come within the classification ‘red’ as stated in rule 7 of

cwi‡ek msi¶Y wewagvjv, 1997 (‘Rules’), must adopt adequate measures to

control pollution within one year and report compliance but the said respondent

miserably failed to do so. Of late, we came to learn about the deplorable condition of

pollution as reported in various newspapers and the pictures printed thereon. As such, by

our order dated 28.4.2009, asked the respondent nos. 1,3 and 4, and also the petitioner to

furnish reports in respect of the steps taken to implement the directions made in the

judgment dated 15.7.2001, within a period of one month from the said date and fixed

1.6.2009 for further orders. Accordingly, reports are filed on behalf of the respondent no.

1 and the petitioner, sworn on 1.6.2009.

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The much belated reports are far from satisfactory, rather, highlights the sorry

and the appalling condition of environmental pollution in Bangladesh, specially in and

around the City of Dhaka. The condition of two rivers, namely, Buriganga and

Shitalakkhya since 2001, deteriorated much and beyond recognition. The river Buriganga

is no longer a river, but has become a large drain.

Under such painful circumstances, we brought the matter again in our daily cause

list and heard the respondent no. 4 and also the petitioner. In the meantime, two further

affidavits, sworn on 3.6.2009 and 23.6.2009, are filed on behalf of the petitioner.

Syeda Rezwana Hasan, the learned Advocate for the petitioner, took us through

the various news-papers and the pictures printed thereon. Referring to the news paper

reports she submits that tons of purple dye are pouring into the river Shitalakkhya

through drain pipes from the dying industries, that huge effluents from the nearby

industries are being disgorged in the river, poisoning fishes and every living being to

death in the process. Pitch black effluents from Tajgaon Industrial Area containing heavy

metals are causing serious pollution in various nearby canals leading to pollution of

Balu river. She further submits that only a trickle of black liquid represents the Turag

river which is already filled with free-for-all encroachments. The river Buriganga is in its

worst condition, she submits, millions of gallons of highly toxic wastes are being released

from thousands of industrial units, 75 percent of the city’s raw sewage and hundreds of

tons of solid wastes are being dumped into the river Buriganga and the river resembles a

huge gutter with pitch-black toxic chemicals in it, that stench in it has already become

unbearable. She further submits that a ten-feet layer of discarded polythene bags,

plastics, coconut shells and heavy sludge created by millions of tons of biodegradable

wastes cover the bed of the river Buriganga.

Referring to the news-papers and from her own ghastly experience, the learned

Advocate submits that Hazaribagh tanneries alone are the largest and the worst source of

toxic pollution. This place, she submits, is the cancerous area in the Dhaka Metropolitan

City and efforts are being taken since 1991 to shift and relocate the said tanneries, firstly

to Kanchpur area then to Sonargaon Upazila and finally to Savar in 1993. For that
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purpose an area of 17.30 acres were acquired there but without any visible response from

the tannery owners although most of them obtained industrial plots there.

She submits that an inter ministerial meeting was held on 20th August, 1998, for

relocation of tanneries from Hazaribagh area. It was also revealed as early as in 1998 that

15,000 cubic meter of untreated chemical wastes from the tanneries of Hazaribagh

ultimately went into the river Buriganga and 70% of the pollution is caused by such

wastes. Since then, the extent of pollution has increased many folds.

She further submits that since 1991, dozens of meetings were held in connection

with relocation of the tanneries at Savar where all and full facilities are made by the

Government but the tannery owners so far refused to move there inspite of their

repeated promises. Lastly a 14 member committee headed by the Joint Secretary,

Ministry of Industries, in its meeting held on 25.9.2008, resolved that all tanneries shall

shift from Hazaribagh within February, 2010.

Besides, she submits, the whole of tannery area are of red category, but still they

did not install ETP in direct violation of the relevant provisions of environmental laws. In

this connection, she refers to the decision of Dr. Mohiuddin Farooque V. Bangladesh 55

DLR (2003) 69 in which one of us was the author Judge.

It appears that very little improvement has been made in minimizing pollution in

Bangladesh but apparently the situation deteriorated to the extreme since 2001, specially

in and around the city of Dhaka.

Nobody can deny that the rivers around the City have become moribund. Those

are ravaged by the effluence disgorged by the tanneries, mills and factories. These are not

rivers any more. We have seen the pictures of those pools of chemicals which were once

picturesque rivers. We are simply at a loss, seeing the horrendous situation of such an

incredible magnitude. Admittedly, the ground water level in and around the city is also

going down by 9 feet per year, besides, the polluted water is percolating into the

subsurface but although it has all the powers under the provisions of Act 1 of 1995 and

the Rules of 1997, to protect the environment of Bangladesh but for some reasons or

other it remains somewhat indulgent. Special courts were established in 2002 under the
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provisions of cwi‡ek Av`vjZ AvBb,2000(2000 m‡bi 11 bs AvBb)

but action in accordance with law are not much visible although there are instances of

hundreds and thousands of violations of the environmental laws without any redress.

Besides, the Department failed to implement the directions given by this Court in the

above noted decision given in 2001. It did not even feel it necessary to approach the

Court for further direction, while the City has been continuously sinking in pollution.

This conduct on the part of the officials of the Republic is highly deplorable and

deprecated. However, the present Director General, Department of Environment,

personally appeared before us and assured their full co-operation. Of late, they have also

started taking steps in this regard.

We have given our utmost attention to the pollution created by the Tanneries, the

Dying Industries , the Textile Industries, and other Industries. We are also not

unmindful of the large number of workers engaged in those industries. But we have to

weigh the crisis that may be created because of redundancy of the workers which may be

caused by the possible closure of various industries due to their reckless failure to install

the obligatory ETP. On the other hand, if we fail to act and act quickly to implement the

provisions of Environmental laws meticulously in its letters and spirit, there shall be no

river, no water left in and around Dhaka and it will be a dead-city very soon. In such an

impending precarious life-threatening situation do we have a choice ? We are of the

opinion that unless we act quickly disaster will be inevitable.

As such, on balance we are left with no alternative but to implement the

provisions of law strictly. We have to take the risk of redundancy of few thousand

workers to save the city and its 12 million inhabitants. Otherwise, the future of this

country, as a whole is bleak indeed and the health condition of millions of its citizens will

be seriously jeopardized.

It is admitted and agreed that the tanneries at Hazaribagh is the single most

serious source of pollution in the river Buriganga.

It may be noted that Article 32 of the Constitution guarantees right to life.

Article 32 reads as follows :

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“ 32. No person shall be deprived of life or personal liberty save in

accordance with law.” (underlining is mine)

This has been explained in Dr. Mohiuddin Farooque’s case in this manner:

“23. This declaration in the Constitution is not mere empty words. These
guarantees are fundamental in nature, bestowed upon the people of
Bangladesh by its Constitution. The expression “life” enshrined in Article
32 includes everything which is necessary to make it meaningful and a
‘life’ worth living, such as, among others, maintenance of health is of
utmost importance and preservation of environment and hygienic
condition are of paramount importance for such maintenance of health,
lack of which may put the ‘life’ of the citizen at naught. Naturally, if the
lives to the inhabitants living around the concerned factories are in
jeopardy, the application of Article 32 becomes inevitable because not
only a right to life but a meaningful life is an inalienable fundamental right
of citizens of his country.”

In the said case, it has been noticed that by a Gazette Notification published in

1986, 903 industries and factories were identified as polluters 23 years back and the

tanneries, even at that time, toped the list of polluters. It was classified as dangerous ones

and was placed at red category.

In the above decision, it was further observed :

“51. This Constitutional mandate guarantees protection of law on every

citizen of this country. The Act of 1995 and the Rules of 1997 were
enacted with specific purpose to preserve the hygienic conditions of the
country by eradicating pollution from the environment, as such, protection
of the citizens under such laws, is a guaranteed right under Article 31, to
make their lives meaningful and worth living. Under such circumstances,
the concerned officials can however, be directed to perform their such
primary, mandatory and obligatory duties as required under the provisions
of the Act and the Rules made there under and no excuse would be
accepted in the performance of their such primary obligations.”

In the back-drop of the above legal position, the following directions were given

in the said Judgment :

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“The Director General, Directorate of Environment, the respondent no.4,

is 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.

The Secretary, Ministry of Industries, respondent no.1, is also directed to

ensure that no new industrial units and factories are set-up in Bangladesh
without first arranging adequate and sufficient measures to control
pollution, as required under the provisions of the Act of 1995 and the
Rules of 1997.
The petitioner BELA is at liberty to bring incidents of violation of any
of the provisions of the Act and the Rules made thereunder to the notice of
this 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.” (Underlinings are mine).

The above directions were given nearly 8(eight) years back but during this period

the pollution continued unabated, rather, increased manifolds, specially from the

tanneries at Hazaribagh, threatening the civic life of the inhabitants of the city of Dhaka.

No improvement has been indicated since passing of the above Judgment in 2001, rather,

the pollution has increased to horrendous proportion. But under the provisions of the

Environmental laws no industry of red category can at all operate in residential areas, but

the tanneries continue at Hazaribagh inspite of extreme sufferings of the inhabitants of

the neighbouring localities. It has also been reported that even the workers suffer from

various diseases because of the extreme unhealthy conditions in their working places. In

order to save the city and its inhabitants the Government in exercise of its Constitutional

duties ought to have taken appropriate measures long ago to curb the pollution but

apparently it did not, leading to the present disastrous situation.

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Under such painful circumstances, we are constrained to issue the following

directions :

i) All the Industries of red category must install Effluent Treatment

Plant (ETP) and other appropriate pollution fighting devices by
30.6.2010 positively, failing which they shall be subject to the
legal sanctions as spelt out under section 4(3), 4A and 7 of
evsjv‡`k cwi‡ek msi¶Y AvBb, 1995, without any
exception.

ii) The tanneries at Hazaribagh are of red category. None of those

tanneries installed ETP inspite of our such direction in the
Judgment dated 15.7.2001, in Dr. Mohiuddin Farooque’s case
mentioned above. The chemicals and other deadly effluents
disgorged by those tanneries at Hazaribagh caused the ghastly
death of the river Buriganga. As such, we have no other
alternative but to direct :
a) As resolved earlier by the Government, let the
tanneries be relocated from Hazaribagh by 28th
February, 2010, failing which those shall be shut
down since the life and well being of the citizens take
precedence above everything and cannot be sacrificed
even for the industries.
b) Once relocated, those tannery industries shall
function only on setting up and operating ETPs,
sanitary land fill and other appropriate pollution
mitigation devices.
iii) Meticulous compliance of the provisions of Environmental Laws
by all kinds of industries failing which the Department of
Environment, the respondent no. 4, is obliged to take necessary
actions in accordance with the provisions of laws.

The Director General, Directorate of Environment, the respondent no. 4, must

ensure that these directions are complied with to the letter and spirit without

any exception. The Ministry of Industries, the Ministry of Environment and Forest, are

also directed to co-operate with the respondent no. 4, in this regard.

The Metropolitan Police Commissioner, Dhaka, is directed to co-operate with the

Director General, Department of Environment, in implementing these directions so far

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the Dhaka City is concerned. The Inspector General of Police, Bangladesh, is also so

directed to afford necessary protection to the concerned officials so that the directions of

this Court are meticulously and thoroughly implemented.

The Secretary, Ministry of Home Affairs, Government of the People’s Republic

of Bangladesh, shall also be accountable if any impediment is caused for the

implementation of the orders of this Court.

The Director General, Department of Environment is directed to produce the

reports of compliance in this respect by 30.7.2010, before the appropriate Bench of this

Court.

Let copies of this order be forwarded to the Secretary, Ministry of Environment,

the Secretary, Ministry of Industries, the Secretary, Ministry of Home Affairs, Inspector

General of Police of Bangladesh, the Metropolitan Police Commissioner, Dhaka, for their

information and necessary compliance.

This writ petition for this purpose shall be treated as continuing mandamus.

Let this matter be posted in the daily cause-list for further orders on 30.7.2010. In

the meantime, if any of the respondents feel it necessary for further direction, they are at

liberty to approach the Court.