M SALEEM ULLAH VS BANGLADESH 55 DLR HCD 2003

 

Analysis of the State:

The then Government erst while East Pakistan developed the vast Mirpur area into residential plots and nucleus house for a residential estate and utilized the vast vacant land at sections 7, 10, 11 and 12 under the master plan approved under the Town Improvement Act, 1963 without damaging the quality of playgrounds, parks and open spaces. The Block A of section 12 Mirpur has a park called Lal Math. The residents of that area and Pallabi area stroll their every morning and evening, the children and youths play there and people congregate there on two Eid occasions. The Town Improvement Act, 1963 provides for a legal basis for open space for the purposes of ventilation and recreation and the park or open space accordingly provided in the site plan. Asian Development Bank (ADB) provided the Government funds for development of urban manufrastructure to arrest deteriorating infrastructures, environmental degradation, inner city decay and neighborhood collapse but the Government diverted the fund to convert the park at the residential area in mirpur and other places into habitats completely blocking the breathing open space causing environmental degradation thus frustrating the very purpose for whether the ADB sanctioned the fund. The petitioners and the residents of the area protested publicly by bringing out procession and making out representations when the portion of the park was illegally converted into a community centre degrading the quality of the environment necessary for the healh and well being of the people of the area. The Government was about to embark on further construction of the buildings for police station and residential houses on the plots marked. 

Argument from the petitioner:                                           

It was argued that

 The vacant space ( Road nos. 3 and 4 of Block A, Section 12, Mirpur Housing Estate ) 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 can not convert the same into residential plots and allot the same to others and also can not construct community centre and police station in the vacant space which is meant for a park.

 At the time of the issuance of the rule the respondents were directed not to change the nature and character of the vacant space known as Lal Math.

 The impugned plan suggesting conversion of the park known as Lal Math into community centre, police station and residential plots completely blocking the open air space and degrading the quality of the environment in the area and neighborhood necessary for the health and well being of the citizens has infringed the fundamental right of the petitioners and other residents to life which can not flourish and survive without healthy ecosystem of the area.

 Right to life under articles 31 and 32 of our constitution is fundamental to all fundamental rights and right to life includes among others, right to adequate standard of living, right to health care, right to have unpolluted air and noise.

 The terms of the deeds of the lease with the provisions of the Building Construction Act, 1952 ensures that the topography containing open space for recreation should be ensured.

Argument from the respondent:

It was argued that

v  The petitioners shall not be prejudiced if allotment for residential plots, construction of community centers and construction for police station in the case land which is absolutely vested upon the Government are made. 

v  There will not be any environment pollution which can do harm to these petitioners and the petitioners brought the false case which is harmful to the development work of the State. There is no material on record to show that any fundamental rights or constitutional right of the petitioners has been violated.

Issue:

Whether the impugned act has violated any fundamental right of the petitioner as per the provision of the constitution ?

Decision:

The action of the respondents in converting the open space meant for in between Road no.3 and 4 of Block A section 12 Mirpur Housing Estate and known as Lal Math into residential plots is without any authority.

Reasoning behind the decision:

The above decision was taken on the following grounds:

 The impugned act was not an improvement by any means and therefore exercise of such power was contrary to the purpose for which it was conferred under the Town Improvement Act.  

 The impugned act is violative of fundamental right under article 31 and 32 of our constitution because it is detrimental to the health and well bring of the people of the area.

Principle: 

Any act which is detrimental to health and well being of the people of any particular area is also violative of Right to Life as per the provision of the article 31 and 32 of our constitution.

Importance of the case:

In this case the meaning of Right to life as per the provision of the article 31 and 32 is elaborately narrated. The court declared one of the Government’s plans as illegal due to violative of fundamental right under the constitution.