The New Nation - Internet Edition

High Court Division

(Special Original Jurisdiction)

Md Awlad Ali J

Zinat Ara J

Sufi Samrat Hazrat

Mahbub-e-Khuda,

tttttt.Petitioner

vs

RAJUK represented by

Chairman and others

tttt Respondents

Judgment

March 15th, 2007

Building Construction Act, 1952 (II of 1953) -Section 3

The Authorised Officer is authorised to sanction or approve the plan and he is not authorised to refuse the sanction if the legal requirements are fulfilled and the Building Construction Rules of 1996 are complied with. The petitioner appeared to have made the representation dated 30-6-2005 stating that he had not received any plan from his predecessor for the standing structures and has prayed for approval of the plan on payment of requisites fees, the notice dated 12-7-2005 directing the petitioner to demolish the structures is without any lawful authority.

tt (5)

Jamuna Builders Ltd vs Rajdhani Unnayan Kartripakha 57 DLR 762 rel.

Abdul Wadud Bhuiyan with Syed Mokaddas Ali and Syed Golam Mostafa, Advocates-For the Petitioner.

Rehana Malek, Advocate-For Respondent No.1.

Judgment

Md Awlad Ali J : Two notices being Memo No ivRDK/bAA4/2wm-01/05/401 (14)-12 gy ZvwiL 21-6-2005 Bs (Annexure-A) and Memo No ivRDK /bAA/2wm-01/05/444-11gy ZvwiL 28-06-2005 Bs (Annexure-D) both issued by the respondent No. 2, the Authorised Officer, RAJUK, Dhaka were initially challenged by the petitioner in this writ petition and Rule was issued on 3-7-2005.

Subsequently, on an application filed by the petitioner praying for further Rule, Rule in modified form was issued on 17-7-2005 calling upon the respondents to show cause as to why the impugned final notice vide Memo No. ivRDK/bAA/2wm-01/05/(10)-517 gy dated 12-7-2005 issued under the signature of respondent No 2 (Annexure-G) directing the petitioner to demolish the existing structure of the petitioner on holding No.l/2/E South Kamlapur, Dhaka should not be declared to have been issued without lawful authority and is of no legal effect.

2. The petitioner purchased land measuring 17.77 khatas appertaining to CS plot No. 114, SA Plot No., 487 RS Plot No. 878 by registered deed dated 29-6-2004 at Municipal Holding No.1 /2/E. On 22-6-2005; a notice dated 21-6-2005 purported to have been issued by the respondent No.2 was left at holding No 1/2/E, South Kamalapur, Dhaka stating therein that a semi pucca building has been built at the said holding without any approved plan. The petitioner was required to submit the said plan of the respondent No.2 within 3(three) days. The petitioner replied to the said notice on 26-6-2005 stating, inter alia, that the petitioner purchased the said property with the semi-pucca structures standing over there and the petitioner had not made any construction after purchase.

In the reply, request was made to the respondent to the following effect ÓZvB eZ©gvb A¯’vqx ¯’vcbvw` ivRDK KZ…©K cÖPwjZ AvBbvbyhvqx ˆeaKi‡bi e¨e¯’v MÖn‡Yi Aby‡iva Ki‡ZwQÓ

Thereafter, on 30-6-2005, the petitioner submitted an application to the respondent No. 2 along with a plan/map praying for according sanction/approval under the Building Construction Act with an undertaking to deposit necessary fees.

The notice (Annexure-D) dated 28-6-2005 was issued and served upon the petitioner staling that the petitioner failed to produce the approved plan and that the petitioner constructed a pucca building in violation of section 3 of the Building Construction Act and by that notice the petitioner was asked to show cause within 7(seven) days as to why such construction shall not be demolished. The petitioner has stated that there was no Master Plan covering the area in question and the petitioner has/had no knowledge about the Gazette Notification about the application of the Building Construction Act for the area. However, the petitioner prepared a reply and sent it on 30-6-2005 to the office of the respondent No. 2 through, his agent but the respondent No. 2 refused to entertain the same and thereafter the petitioner sent the same to the respondent No.2 by registered post.

Although the said two notices were stayed by the order dated 3-7-2005 the respondents purported to have issued the impugned final notice/(P~ovšÍ †bvwUk) directing the petitioner to demolish the existing structure of the petitioner within seven days from receipt of the notice which has been impugned by the petitioner by filing application for further Rule.

3. Ms Sigma Huda, along with two learned Advocates, entered appearance on behalf of the RAJUK on 22-12-2005, but the respondents have not filed any affidavit-in-opposition till today. Therefore, the material statements made in the writ petition and the supplementary affidavit have not been controverted.

4. Mr Abdul Wadud Bhuiyan, appearing with Mr Syed Golam Mostafa for the petitioner, has contended that the petitioner having replied to the two notices stating that the petitioner purchased semi-pucca tin shed/structures, applied to the RAJUK by submitting plan for approval of the same comprising the semi-pucca structures at holding No 1/2/E according to the Building Construction Act and prescribed Rules stating that the petitioner is: giving undertaking to deposit the requisite fees for such approval, the impugned notice, (PzovšÍ †bvwUk) (Annexure- '(G) directing the petitioner to demolish the structures is malafide, arbitrary and without lawful authority.

His further contention is that the petitioner having submitted a plan prayed for approval with an undertaking to pay the requisite fees, no further action was warranted under the provisions of law and the respondent No.2 is under statutory obligation to sanction the plan in accordance with the rules.

5. In the case of Jamuna Builders Ltd us Rajdhani Unnayan Kartripakha and others reported in 57 DLR 762 it has been observed in paragraph 12 that the Building Construction Act, 1952 was enacted in order to prevent haphazard construction of building and excavation of tank which are likely to interfere with the planning of certain areas in Bangladesh.

For that purpose, certain legal requirements are to be fulfilled for having a sanctioned plan. The Authorised Officer is authorised to sanction or approve the plan and he is not authorised to refuse the sanction if the legal requirements are fulfilled and the Building Construction Rules of 1996 are complied with.

The petitioner appeared to have made the representation dated 30-6-2005 stating that he had not received any plan from his predecessor for the standing structures and has prayed for approval of the plan on payment of requisites fees, the notice dated 127-2005 directing the petitioner to demolish the structures is without any lawful authority.

6. In view of what has been stated above, the impugned notice dated 12-7-2007 (Annexure-G) issued by the respondent No. 2 is declared to have been issued without lawful authority and is of no legal effect.

7. The respondents are now under legal obligation to approve the plan of the petitioner on receiving the fees as prescribed under Rules, if the plan has been submitted complying with the Building Construction Rules, 1996.

In the result, the Rule is made absolute without any order as to costs.

Justice Md. Imman Ali

(From previous issue)

At this juncture it would not be out of place to advert to one other issue which has been a bone of contention in the past. In cases brought under any special law, children have been tried by Special Tribunals. In State vs Sukur Ali, a 14-year-old child was convicted by the Nari-o-Shishu Nirjatan Daman Bishesh Adalat under section 6(2) of the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and was sentenced to death. A Division Bench of the High Court upheld the conviction , and sentence on the ground that section 3 of the relevant law has an overriding effect and the provisions of this law would prevail over other laws, including the Children Act. In this regard it was observed in the Md. Roushan Mondal case, cited above, that ' t.. juveniles charged with offences falling under special law will have to be dealt with by the Juvenile Court in accordance with provisions of the Children Act, which, in our view, is of universal application and approach, irrespective of the offence alleged t. ' Support was gathered from the Indian decision in In re: Sessions Judge, Kalpetta, 1995 Cri.L.J. 330, where the Court after deliberation reasoned that the 1989 Act the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which has a non-obstante clause similar to section 3 of our Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995] aims at giving protection to the Scheduled Caste and Scheduled Tribe communities against whom atrocities are being committed. The Act was concerned with victims of the crimes and not the offenders. In their Lordships' view the overriding power given by section 20 of the Act cannot be extended to nullify the provisions contained in the 1986 Act [the Juvenile Justice Act, 1986]. Their Lordships concluded, " t it can safely be concluded that Parliament totally excluded the jurisdiction of ordinary courts in relation to juvenile offenders.

In other words, jurisdiction of all other courts established under law is ousted and it is solely conferred on Juvenile Courts, insofar as juvenile offenders are concerned." Similarly, in our country the Nari-o-Shishu Nirjatan (Bishesh Biclhan) Ain, 1995 and other similar special laws were enacted with a view to protecting the victims, whereas the relevant sections of the Children Act, 1974 were enacted for the benefit of the child offender.

[9 BLC (HCD) 2381]

If one applies the doctrine of mischief, i.e. the purpose for which the law was enacted, then one cannot avoid the conclusion that where the allegation involves a child in conflict with the law then the provisions of the Children Act will prevail. The matter has now been clarified by the Nari-o-Shishu Nirjatan Daman Ain, 2000, repealing the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, which is considered as a remedial legislation. In the new law section 20(7) provides that, 'if a child is accused of committing an offence under this law, or is a witness of such an offence, then, so far as possible, the provisions of the Children Act, 1974 shall be followed.'

Hence, it must be concluded that the matters described above, are a failure of the system to ensure the inalienable universal rights of the child-citizen, given by statute enacted to enforce the fundamental rights recognised by the Constitution.

In the above example, (Jail Appeal No. 552 of 2004) the system has failed to give the child offender his due benefits by way of bail, services of a Probation Officer, confinement in a place other than a prison and trial in an appropriate Court following the law and rules duly enacted in this regard, i.e, the Children Act 1974 and the Children Rules 1976. That law and the Rules having been specifically enacted for a particular class of citizens, it is the fundamental right of anyone falling within that category to receive treatment as provided by that law.

The matter being sub judice, I shall refrain from commenting on the legality or otherwise of the sentence awarded, in the facts of the case mentioned above.

("Section 20 of the 1989 Act states that save as otherwise provided in the Act, the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force t .)

i.e. Nari-o-Shishu Nirjatan Daman Ain, 2000 (XXXIX of 1974)

More than thirty-three years helve elapsed since the enactment of the Children Act 1974, yet we find many persons concerned with and responsible for the operation of the law to be oblivious of the provisions of the law thus enacted.

It cannot be over-emphasised that it is our bounden duty and in our greater interest to look after the well-being of our children for our prosperous and peaceful future. We are duty bound to enforce the law and to administer the rights ensured by legislation and to grant benefits accruing there from, whenever and wherever it is due.

Justice is to be ensured by due process of law. Children too have a right to be dealt with in accordance with law, i.e. the provisions of the Act, and thereby in conformity with the mandate of the Constitution.

The law was purposefully enacted for the benefit of that class, giving them specific rights, overriding the non-discrimination clause in the Constitution. We should not allow such rights to be frittered away. (Concluded)