Illegal sand extraction: SC slams HC for entertaining UP chairman’s plea
The Appellate Division of the Supreme Court in the full text of a verdict has directed the Chandpur deputy commissioner to realise the royalty from expelled local Awami League leader Md Selim Khan for illegally extracting sand from the Meghna in the district's 21 mouzas since 2016.
The apex court also castigated the High Court Division for allowing Selim, now chairman of Chandpur's Lakshmipur Union Parishad, to extract sand from the river for an indefinite period without fixing any tenure and royalty.
It observed that the HC played the role of the lessor and travelled beyond its jurisdiction declaring the mouzas in question as Balu Mahal (an area from where sand is extracted).
The SC expressed dissatisfaction with the government that it did not contest the HC rule on time.
"Before parting, it is necessary to note that since 2016 the writ petitioner-respondent [Selim Khan] extracted sand from the mouzas in question without paying any royalty to the government in an arbitrary manner, which has already incurred a heavy financial loss to the government.
"Thus, the authority concerned, in particular the deputy commissioner, Chandpur, is directed to take necessary steps to realise the royalty for the alleged extraction of sand from the petitioner [Selim Khan], from the date of the judgment of the High Court Division till the date of order of stay [April 4 this year] passed by this Division [Appellate Division]," a three-member bench of the Appellate Division, headed by Chief Justice Hasan Foez Siddique, observed in its 16-page full text of the verdict which was released recently.
Two other judges of the bench are Justice Obaidul Hassan and Justice M Enayetur Rahim.
On May 29 this year, the apex court bench delivered a short judgement on the issue, scrapping the HC verdict that allowed Selim to extract the sand from the Meghna in Chandpur.
On that day, the apex court passed the short verdict following a leave to appeal petition filed by the state, seeking cancellation of the HC directive.
Following the writ petition filed by Selim, an HC bench on April 5, 2018, allowed him to extract sand in 21 mouzas under Chandpur Sadar and Haimchar upazilas, Deputy Attorney General Kazi Mynul Hassan told The Daily Star.
In the full text verdict, the Appellate Division observed that, "But the High Court Division making the Ain, 2010 [the Balumahal and Mati Babosthapona Ain, 2010] nugatory most illegally and arbitrarily leased out the mouzas in question to the writ petitioner for extracting sand. The High Court Division, in fact, had played the role of the lessor, which it cannot do.
"But in the instant case, the High Court Division has allowed the writ petitioner to extract sand for an indefinite period without fixing any tenure and royalty. Thus, we are constrained to hold that the High Court Division disposed of the writ petition beyond the scope of Article 102 of the Constitution of the People's Republic of Bangladesh."
The apex court judges said "…it is crystal clear that the deputy commissioner of the district concerned has been empowered to declare a certain area as Balu Mahal, subject to fulfilment of certain conditions with the approval of the divisional commissioner concerned.
"In the instant case, the alleged 'Dubochars' of the Meghna river bed under the mouzas in question have never been declared as Balu Mahal by the deputy commissioner concerned complying the provisions of relevant law."
The verdict said the HC cannot assume the power and jurisdiction of a particular authority conferred by a specific law/statute in exercising power under Article 102 of the country's constitution and thus, the HC cannot declare a particular area as Balu Mahal making a particular law, i.e. Ain 2010 nugatory or redundant.
Thus, in this particular case, the HC has travelled beyond its jurisdiction declaring the mouzas in question as Balu Mahal, it added.
From the impugned judgment it transpires that the High Court Division without taking consideration of the provision of section 9 of the Ain 2010 straightaway treated the Dubochars of Meghna river bed under mouzas in question as Balu Mahal and directed the writ-respondents-petitioners (state) to allow the writ petitioner to extract sand from the said mouzas, read the SC verdict.
"Having considered and discussed as above, we have no hesitation to hold that the High Court Division has committed serious error in passing the impugned judgment and order," the SC judges observed in the full text verdict.
The judges said, "It also surprises us that on behalf of the government, no affidavit-in-opposition was filed before the High Court Division to contest the Rule and the conduct of the law officers concerned are highly suspicious. The government officials concerned of Chandpur district administration slept over the matter for a long time. We express our dissatisfaction with the conduct of the government officials concerned of Chandpur district administration, who slept over the matter years together as well as the law officers who did not perform their duties property before the High Court Division."
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