Mohshinul Islam Vs Rajdhani Unnayan Kartripakkha and others

Case No: Writ Petition No.1001 of 1993.

Judge: Kazi Ebadul Hoque,

Court: High Court Division,,

Advocate: Mr. Ziaur Rahman,AF Hassan Arif,Mr. Syed Haider Ali,GS Huq ,,

Citation: 52 DLR (HCD) (2000) 12

Case Year: 2000

Appellant: Mohshinul Islam

Respondent: Rajdhani Unnayan Kartripakkha and others

Subject: Property Law,

Delivery Date: 1999-06-09

Mohshinul Islam Vs Rajdhani Unnayan Kartripakkha and others
52 DLR (HCD) (2000) 12
 
Supreme Court
High Court Division
(Special Original Jurisdiction)
 
Present:
Kazi Ebadul Hoque J
Md. Muzammel Hossain J
 
Mohshinul Islam………………………….Petitioner
Vs.
Rajdhani Unnayan Kartripakkha and others………..Respondents
 

Judgment
June 9, 1999.
 
Town Improvement Act (XIII of 1953)
Section 2(f)
It is an obligation of the RAJUK to provide parks, open spaces, play grounds or similar amenities. It cannot deprive the residents of an improvement scheme from such facilities on the plea of providing residential plots to the growing number of town dwellers.
 
Cases Referred To-
Giasuddin vs. Dhaka Municipal Corporations 17 BLD 577=49 DLR 199; Miah Fazal Din vs. Lahore Improvement Trust 21 DLR (SC) 225 (13 & 14).
 
Lawyers Involved:
GS Huq with Syed Haider Ali, Advocates-For the Petitioner.
AF Hassan Ariff with Ziaur Rahman Khatian, Ashik Ali Jalil, Advocates—For the Respondent Nos.1 and 2.

Writ Petition No.1001 of 1993.

 

Judgment

Kazi Ebadul Haque J.- Rule in Writ Petition No.1001/93 was issued on 22-6-93 at the instance of the petitioner Md. Mohshinul Islam allottee of plot No.32 of Deed No.6 Section No.4, of the Uttara Model Town calling upon the respondents, Rajdhani Unnayan Kartripakkha and two others to show cause as to why layout plan dated 18-10-92 (Annexure-F) shall not be declared to have been made without any lawful authority and of no legal effect and the respondents were directed not to change the nature and character of the lands earmarked in the original master plan (possibly meant layout plan) for community purpose, recreation and other non-residential purposes. This Rule was directed to be heard along with Writ Petition No. 531 of 93. But the said Rule was discharged for default in the meantime.

2. Rule in Writ Petition No.1185/93 was issued on 18-7-93 at the instance of the petitioner Mr. Mir Nizamul Hoque allottee of plot No.14 Road No.1 of Section No.5 of Uttara Model Town calling upon the respondents, Rajdhani Unnayan Kartripakkha and two others to show cause as to why revised layout plan dated 20-5-91 (Annex E) should not be declared to have been made without any lawful authority and of no legal effect and the respondents were directed not to change the nature and character of the land earmarked in the original master plan (possibly meant layout plan) for community purpose and recreation and other non-residential purposes.

3. Both the Rules are contested by respondents. Respondent Writ Petition No.1001 of 1993 is being contested by respondent Nos.1 and 2 by filing an affidavit-in-opposition. Petitioner filed affidavit-in-reply to the same and also filed a supplementary affidavit showing the latest position of the disputed land. Writ Petition No.11851 being contested by respondent No.1 by filing an affidavit-in-opposition and two supplementary affidavits-in-opposition. But no affidavit-in-reply has been filed by the petitioner to the affidavit-in-opposition filed by the respondent No.1. But the petitioner filed a supplementary affidavit stating that the respondents after converting the vacant space reserved for mosque, community centre, school, etc, into residential plots allotted the same to different lessees and in view of protest of residents of section 5 published a revised place of section 5 wherein space for play ground, mosque and other civil amenities were clearly demarcated for residents of Uttara Model Town generally residents of section 5 in particular.

4. Contention of the respective petitioner in both the Rules is as to whether respondent No.1 Rajdhani Unnayan Kartripakkha can alter the lay out plan of the sector concerned either to eliminate or curtail park, play ground and other community facilities enjoyed by the allottee residents of the sector concerned. Since in both the Rules common question has been raised these are being disposed of by this judgment.

5. Relying on clause 21 of the lease deed of the respective petitioner on the basis of which ease was granted to him learned Advocate for the petitioner submitted that in the layout plan attached to the respective lease deed vacant space for park, play ground, community centre, school etc. was kept but subsequently respondents either converted the entire or part of the vacant space into plots in violation of the promise made to the allottees at the time of allotment made to them in the sector including to petitioner of the respective Rule. On the other hand, learned Advocate for the respondents relying upon the provisions of section 40(b) and (h) of the Town Improvement Act, 1953 submitted that RAJUK can alter the layout plan at any time and the layout plans have been changed converting the open spaces into plots to meet increased demand for residential plots by large number of city dwellers and there is no illegality in altering the layout plan in such manner. He further submitted that there is no question of holding out any promise by RAJUK to the allottees as of any estoppel preventing it from converting the open space into residential plots.

6. Petitioner of Wit Petition No.1001/93 got tease of plot No.31 of Road No.6 Sector No.4 of Uttara Model Town by registered lease deed dated 3-8-78. In the schedule of the said deed there is mention of a layout plan of sector IV of Uttara residential Model Town. Similarly, petitioner of Writ Petition No.1185/93 got lease of plot No.14 Road No.1 Sector No.5 of Uttara Model Town by registered lease deed dated 3-2-1982 and in the schedule of the said deed there is mention of a lay out plan of sector V of Uttara Residential Model Town. But none of the petitioners produced the lay out plan mentioned in the respective lease deed. In para 21 of the both the lease deeds there is mentioned of land earmarked for school, dispensary, Hospital, Mosque, Temple etc. Learned Advocate for the petitioner contended that park, play ground and community center are covered by the words “etc in use 21 of the lease deeds.

7. There is no dispute that some vacant spaces were earmarked in the original layout plans for common facilities and user of the lessee residents of the respective sector and there is also no dispute that open spaces kept for such purposes such as park, play ground, community centre, School, Mosque, Temple in sector 5 were subsequently converted into residential plots and some vacant spaces towards the western side of sector 5 was kept for such purposes. There is also no dispute that part of the vacant spaces kept for use as park, play ground, School, Mosque and community centre in sector No.4 was converted into residential plots. Petitioner of the respective Rule challenged the authority of the RAJUK to convert such open space in residential or commercial plots.

8. To consider the contention of the learned Advocate for the RAJUK that it can alter the layout plan converting such vacant space into residential plots legally it is required to consider the provisions of Town Improvement Act, 1953 under which RAJUK has been constituted. Preamble of the said Act provides-
“Whereas it is expedient to make provision for the development, improvement and expansion of the Capital of the Republic and Narayanganj and Tongi Municipalities and certain areas in their vicinity by opening up congested areas laying out or altering streets, providing open spaces for purposes of ventilation or recreation demolishing or constructing buildings, acquiring land for the aforesaid purposes and for the rehousing of persons displaced by the execution of improvement schemes and otherwise as hereinafter appearing;"
According to section 2(1) of the said Act-
“improvement scheme” means any scheme under chapter III but it does not include a rehousing scheme or a projected public street referred to in section 69,”
clause (d) of section 38 appearing in chapter III of the said Act is as follows-
“38. Whenever it appears to the Kartripakkha, whether upon an official representation made under section 43 or without such representation (d) that it is necessary to provide in any area, parks, open spaces, play grounds or similar amenities“
Clause (b) and (h) of section 40 appearing in chapter III of the said Act, is as follows:
“40. An improvement scheme may provide for all or any of the following matters, namely:
(b) The laying out or relaying out of the land in the said area.
(h) The formation, retention or enlargement of open spaces.”
From the preamble and aforesaid provisions it is clear that it is the duty of RAJUK to provide for parks, open spaces, play grounds or similar amenities in the improvement scheme such as new township like Uttara Residential Model Town. In compliance with the requirement of the above provisions in the original layout plans such amenities were provided for by earmarking some land as parks, play grounds, community centres, School, Mosques etc. Contention of the learned Advocate for the RAJUK that in exercise of power under section 40(b) it can change the layout plan converting the open spaces into residential or commercial plots has no merit in view of the provisions of section 40(h) which provides that in an improvement scheme open spaces can be formed, retained or enlarged. Under section 40(b) RAJUK can lay or relay out the land in an improvement scheme. But it cannot curtail or diminish open spaces kept for common use. In view of aforesaid provisions of law and the assurance made in clause 21 of the lease deeds we have no hesitations to declare that the layout plan No.TP/RIP/2164/OCT-68/92 (153) dated 18-10-92 (Annexure-F) converting part of the open spaces earmarked in the original layout plan of section 4 of Uttara Residential Model Town is without lawful authority.

9. But the lay out plan No.TP/RIP/1916 May 9/91(36) dated 20-5-91 (Annexure-E) in respect of sectors 11, 12, 13, 14 of the Uttara Model Town cannot be so declared as the same does not cover any area of sector 5. The layout plan of sector 14 covers some area towards the western side of sector 5 which was originally shown as vacant and part of the same has been converted into residential plots. But western part of the said vacant space after the residential plots has been kept as play field, park, market, community centre etc. in the said lay out plan dated 20-5-91. The said vacant space is intervened from sector 5 by the residential plot made part of the sector 14. By filing a supplementary affidavit respondent No.1 stated that those residential plots have been allotted to different allottees long before the issuance of the Rule and most of those allottees are in possession of the same. It may be mentioned that admittedly vacant spaces earmarked for park, play ground, School, community centre, Mosque etc in the middle of the sector 5 were converted into residential plots and allotted to different persons who had constructed houses therein. Claim of the petitioner of Writ Petition No.1185/93 that vacant space towards the western side of sector 5 was kept by the RAJUK for common use by the resident sector 5 finds support from layout plan dated 20-5-91 and the plan filed with the supplementary affidavit dated 3-8-98.

10. Respondent Nos.1 and 2 of Writ Petition No.1001/93 though asserted in the affidavit opposition that residential plots in the layout plan dated 18-10-92 in respect of part of the vacant spaces of sector No.4 were allotted to different persons and possession was delivered to them no particulars of such allottees were given. On the other hand, petitioner of Writ Petition No.1001/93 by filling supplementary affidavit dated 10-5-99 with a sketch map asserted that residential plot Nos. 15, 18, 20, 22, 24, 26, 28, 30, 32, 32A, 25, 27, 29, 31,33,35, 37 and 39 are merely notional plots and those have no existence on the spot and only plot Nos.1,3,5, 11, 2,4, 6, 8, 10,12,14,18, 9, 11,13,15, 17, 19,21 and 23 have only been allotted and the remaining vacant space is still in existence as shown in the yellow and green colours in the said sketch map. As per calculation given in the supplementary affidavit dated 10-5-99 at present 7.12 acres of land is vacant. In spite of service of copy of the same respondent Nos.1 and 2 did not deny the assertion made in the said supplementary affidavit.

11. In the above facts and circumstances we are of the view that 7.12 acres of vacant spaces shown in the supplementary affidavit dated 10-5-99 of the petitioner by yellow and green colors including the pond shown in white colour should be retained as vacant spaces and allotment, if any of the National Plot Nos.15, 18, 20, 22, 24, 26, 28, 30,32 32A,25,27, 29,31,33,35,37 and 39 by the southern side to anyone by the RAJUK should be cancelled and those persons should be allotted alternative plots in any other suitable site.

12. We have already noticed that vacant space kept in Sector 5 was converted into residential plots and allotted to different persons long before the issuance of the Rule and another vacant spaces towards the western side of sector 5 was promised by the RAJUK to be kept for the common user of the residents of the said sector 5 and part of the same has been converted into residential plots and made part of sector 14 and allotted to different persons long before issuance of the Rule in Wit Petition No.1185/93 as asserted in the supplementary affidavit dated 8-6-99 of the respondent No.1 and said assertion has not been denied by the petitioner. In view of the same we cannot declare the conversion of part of the land towards the western side of sector 5 to be without any lawful authority. But respondent RAJUK having kept westernmost part of the said vacant land for park, play ground, Market, Community centre, School etc. residents of sector 5 should be given access to the same from sector 5 for their user.

13. Before parting we like to refer to certain decisions referred to by the petitioner in support of contention that open space in a residential area is necessary for the sake of healthy environment. In the case of Giasuddin vs. Dhaka Municipal Corporations reported in 17 BLD 577 49 DLR 199 a Division Bench of this Court to which one of us was a party it was held “A public Park is necessary for protecting health and hygiene of the habitants of the area providing open space with garden. Trespassers cannot be allowed to occupy the same on the plea of their indispensable accommodation to protect their life to the detriment of health and hygiene of the inhabitants of the area and the Corporation is under legal obligation to evict such unauthorised occupants from the park and other facilities meant for public convenience and for maintaining the environment free from pollution and degradation.” In the case of Bang Medical Trust Vs. BS Middappa reported in AIR 1991 (SC) 1902 it has been held that conversion of a public park into a private nursing home is illegal and private nursing home is neither amenity nor can be considered improvement over necessity like Public Park. In the case of Miah Fazal Din vs. Lahore Improvement Trust reported in 21 DLR (SC) 225 it has been held that if the modification of a sanctioned scheme completely alters the nature of scheme or radically changes it as to render the sanctioned scheme materially different then the modification must be republished on the general principles.

14. From the above decisions it appears to us that there is growing concern for maintaining open space like public parks in the urban areas for protecting health and hygiene of the inhabitants of the area and the authorities cannot deprive them from such facility. We have already noticed from the provisions of the Town Improvement Act 1953 that it is an obligation of the RAJUK to provide parks, open spaces, play grounds or similar amenities and cannot deprive the residents of an improvement scheme like Uttara or Gulshan from such facilities on the plea of providing residential plots to the growing number of town dwellers. Maintaining healthy environment in a residential area is a prime necessity of the day and vacant spaces in the development schemes are kept under the requirement of law for maintaining healthy environment for the residents and RAJUK cannot deprive the residents of such facilities on any plea whatsoever.
In the result, both the Rules are made absolute in part without any order as to cost with the above declaration and direction.
Ed.