Unique Hotel and others Vs. Bangladesh & others [4 LNJ (2015) 235]

Case No: Writ Petition No. 4020 of 2009 with Writ Petition No. 6242 of 2009 with Writ Petition No. 6338 of 2009

Judge: Moyeenul Islam Chowdhury,

Court: High Court Division,,

Advocate: A. F. Hassan Ariff,Mr. A. K. M. Nazrul Islam,Mr. M. K. Rahman,Mr. Abdul Baset Majumdar,Mr. A. J. Mohammad Ali,,

Citation: 4 LNJ (2015) 235

Case Year: 2015

Appellant: Unique Hotel and others

Respondent: Bangladesh & others

Subject: Administrative Law,Writ Jurisdiction,Principles of Natural Justice,

Delivery Date: 2010-05-03


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Moyeenul Islam Chowdhury, J,
And
A. K. M. Abdul Hakim, J.
 
Judgment on
02.05.2010 and 03.05.2010
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Unique Hotel and Resorts Ltd
. . . Petitioner
-Versus-
The Government of the People’s Republic of Bangladesh and others
. . .Respondents
(In Writ Petition No. 4020 of 2009)

And

Dr. S. A. Mahmood
. . . Petitioner
-Versus-
The Government of the People’s Republic of Bangladesh and others
. . .Respondents
(In Writ Petition No. 6242 of 2009)

And

Dr. S. A. Mahmood
. . . Petitioner
-Versus-
Rajdhani Unnayan Kartipakkhya and others
. . .Respondents
(In Writ Petition No. 6338 of 2009)
 
Constitution of Bangladesh, 1972
Article 102
The concepts of ‘fairness’ and ‘legitimate expectation’ have expanded the applicability of natural justice beyond the sphere of right. An applicant for registration as a citizen, though devoid of any legal right, is entitled to a fair hearing and an opportunity to controvert any allegation levelled against him. An alien seeking a visa has no entitlement to one, but once he has the necessary documents, he does have the type of entitlement that should now be protected by due process, and the Government should not have the power to exclude him summarily. ...(33)

Constitution of Bangladesh, 1972
Article 102
The application of the rules of natural justice are no longer tied to the dichotomy of right-privilege. The principles of natural justice should be deemed incorporated in every statute unless it is excluded expressly or by necessary implication by any statute. . . .(35)
 
Constitution of Bangladesh, 1972
Articles 31 and 102
The basic principle of fair procedure is that before taking any action against a man, the authority should give him notice of the case and afford him a fair opportunity to answer the case against him and to put his own case. The person sought to be affected must know the allegation and the materials to be used against him and he must be given a fair opportunity to correct or contradict them. The right to a fair hearing is now of universal application whenever a decision affecting the rights or interest of a man is made. But such a notice is not required where the action does not affect the complaining party. . . . (36)

Constitution of Bangladesh, 1972
Article 102
To render an action mala fide, “There must be existing definite evidence of bias and action which cannot be attributed to be otherwise bona fide; actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act. . . . (38)

Constitution of Bangladesh, 1972
Articles 31 and 102
The principle of reasonableness is used in testing the validity of all administrative actions and an unreasonable action is taken to have never been authorized by the Legislature and is treated as ultra vires. . . .(39)

Constitution of Bangladesh, 1972
Articles 102(2)(a)
There is a constitutional bar to the invocation of the Writ Jurisdiction of the High Court Division under Article 102(2)(a) of the Constitution, if there is any other equally efficacious remedy is provided by law. …(40)

Constitution of Bangladesh, 1972
Articles 102(2)(a)
Article 102(2)(a) having incorporated the rule of exhaustion of statutory remedies, existence of efficacious remedy will preclude reliefs  thereunder. The bar of efficacious remedy is not attracted when an infringement of fundamental right is alleged. . . . (43)

Constitution of Bangladesh, 1972
Articles 102
If the impugned action is wholly without jurisdiction in the sense of not being authorized by the statute or is in violation of a constitutional provision, a Writ Petition will be maintainable without exhaustion   of the statutory remedy. Besides, on the ground of malafides, the petitioner may come up with a Writ Petition by-passing the statutory alternative remedy.  It is well-settled that malafides goes to the root of jurisdiction and if the impugned action is malafide, the alternative remedy provided by the statute need not be availed of. . . . (45)

General Clauses Act (X of 1887)
Section 21
Section 21 of the General Clauses Act provides for the applicability of the principle of “locus penitentiae”. As per that principle, the authority competent to make an order has the power to undo the same; but the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual.                                                          . . . (48)

Abdur Rahman and others Vs.  Sultan @ Sultan & others, 35 DLR (AD) 51, Ridge v. Baldwin ([1964] AC 40) another Vs.  Zakir Ahmed, 16 DLR (SC) 722; Sk. Ali Ahmed Vs.  The Secretary, Ministry of Home Affairs and others, 40 DLR (AD)170; Habibullah Khan Vs. Shah Azharuddin Ahmed and others, 35 DLR (AD)72; Hamidul Huq Chowdhury and others Vs.  Bangladesh and others, 33 DLR 381 and Farzana Haque Vs. The University of Dhaka and others, 42 DLR 262; In Re Infant H(K) ([1967] 1 All E.R. 226), Civil Service Union V. Minister for the Civil Service[1984] 3 All E.R. 935); Mills V. India, AIR 1981 SC 818); Chingleput Bottlers V. Majestic Bottlers, AIR 1984 SC 1030, [1924] 1 KB 171); Ridge Vs.  Baldwin ([1964] AC 40); Dacca and another Vs. Zakir Ahmed, 16 DLR (SC) 722; Sk. Ali Ahmed Vs.  The Secretary, Ministry of Home Affairs and others, 40 DLR (AD)170; Habibullah Khan Vs. Shah Azharuddin Ahmed and others, 35 DLR(AD)72; Hamidul Huq Chowdhury and others Vs.  Bangladesh and others, 33 DLR 381 and Farzana Haque Vs. The University of Dhaka and others, 42 DLR 262. Infant H(K) ([1967] 1 All E.R. 226); (Council of Civil Service Union V. Minister for the Civil Service[1984] 3 All E.R. 935), AIR 1984 SC 1030; Ram Chandra Vs.  Secretary to the Government of W.B, AIR 1964 Cal 265); (Associated Provincial Picture Vs.  Wednesbury Corporation [1948]1KB 223); Dhaka Warehouse Ltd. and another Vs. Assistant Collector of Customs and others, 1991 BLD(AD) 327; Dhaka Warehouse Ltd. and another Vs. Assistant Collector of Customs and others, 1991 BLD(AD) 327 and (Ziauddin Vs. Pakistan Defence Housing Authority, 1999 PLC 723) ref.
 
Mr. Abdul Baset Majumdar with
Mr. M. Sayed Ahmed and
Mr. Md. Abu Taleb, Advocates
. . .For the petitioner in Writ Petition No. 4020 of 2009.

Mr. A. F. Hassan Ariff, Advocate
...For the respondent no. 7 in Writ Petition No. 4020 of 2009.

Mr. A. J. Mohammad Ali with
Mr. T. M. Shakil Hasan, Advocates
......For the petitioners in Writ Petition Nos. 6242 of 2009 & 6338 of 2009.

Mr. A.K.M. Nazrul Islam with
Mr. Md. Shahed Ali Jinnah, Advocates
...For the respondent nos. 2, 5 & 1 in Writ Petition Nos. 4020 of 2009, 6242 of 2009 & 6338 of 2009 respectively.

Mr. Abdul Baset Majumdar with
Mr. M. Sayed Ahmed and
Mr. Md. Abu Taleb, Advocates
…For the respondent nos. 6 & 4 in Writ Petition Nos. 6242 of 2009 & 6338 of 2009 respectively.

Mr. M. K. Rahman, Additional Attorney-General with
Mr. Korunamoy Chakma, DAG with
Mr. Titus Hillol Rema, AAG 
Mr. Md. Eunus Ali, AAG
Mr. Nazibur Rahman, AAG
…For the respondent nos.  8, 2 & 3 in Writ Petition Nos. 4020 of 2009, 6242 of 2009 & 6338 of 2009 respectively.

Writ Petition No. 4020 of 2009 with Writ Petition No. 6242 of 2009 with Writ Petition No. 6338 of 2009
 
JUDGMENT
Moyeenul Islam Chowdhury, J:
 
As the questions of laws and facts involved in Writ Petition Nos. 4020 of 2009, 6242 of 2009 and 6338 of 2009 are identical, those have been heard together and this consolidated judgment disposes of them.
 
In Writ Petition No. 4020 of 2009, a Rule Nisi was issued calling upon the respondents to show cause as to why the action of the respondents in allowing the respondent no.7 to construct a high-rise commercial building in the case plot adjacent to the petitioner’s Five-Star Hotel, namely, “The Westin, Dhaka” without considering the security concern of foreign guests, tourists and dignitaries staying there and having any “অবসহানগত ছাড়পত্র” from the Environment Directorate, Dhaka should not be declared to  be  without lawful authority and of no legal effect.
 
In Writ Petition No. 6242 of 2009, a Rule Nisi was issued calling upon the respondents to show cause as to why the Memo No. Paribesh/ Dhabi/18628/Proshason-1737 dated 26.08.2009 (Annexure-‘B’) issued under the signature of the respondent no. 4 cancelling the “অবসহানগত ছাড়পত্র” dated 15.02.2009 in respect of construction of a multi-storied building in the case plot given in favour of the petitioner should not be declared to be without lawful authority and of no legal effect.
 
In Writ Petition No. 6338 of 2009, a Rule Nisi was issued calling upon the respondents to show cause as to why the Memo No. RAJUK/ NaAaAa-2B/R3C-151/09/301 Sthatha dated 07.09.2009 (Annexure-‘C’) issued under the signature of the Authorized Officer-2B, RAJUK, the respondent no. 2, pursuant to the decision of a meeting of the Building Construction Committee alleged to be held on 03.09.2009, cancelling the sanction for construction of a multi-storied building as was given by the Memo No. RAJUK/NaAaAa-2/B-R3C-151/09/339 dated 11.05.2009 (Annexure-‘A’) should not be declared to be without lawful authority and of no legal effect.
 
The case of the petitioner, as set out in the Writ Petition No. 4020 of 2009, in short, is as follows:
          The petitioner is a limited company incorporated under the Companies Act and engaged in hotel tourism business. It has established a 24-storied Five-Star International Hotel under the name and style ‘The Westin, Dhaka’. The local VIPs (Very Important Persons), foreign delegates, dignitaries and tourists almost all over the world are the regular boarders of the Hotel. The Westin is one of the most prestigious American Chain Hotels in Bangladesh. It also contributes to our revenue collection significantly. It is situated on Plot No.1, Block No. CWN(B), Road No. 45, Gulshan-2, Dhaka. The respondent no. 7 is the owner of the adjacent Plot No. 2, Block No. CWN(B), Road No. 45, Gulshan-2, Dhaka(case plot). Being the owner of the case plot, he took the initiative to build a commercial high-rise building on the said plot which would highly affect the security measure of the reputed Five-Star Hotel Westin.  At one stage, the petitioner-company requested the respondent no. 2 not to grant sanction for construction of the high-rise building in the case plot in view of the security concern of foreign guests, tourists and delegates; but the respondent no. 2 turned a deaf ear thereto. However, under compelling circumstances, on 28.09.2008, the company served a legal notice upon the respondent no.2 not to sanction any plan for construction of the multi-storied building in the case plot. The company also filed an application before the Ministry of Environment and Forest to look into the security problem of the Westin Hotel in view of the contemplated construction of the high-rise building in the case plot by the respondent no. 7 whereupon the said Ministry issued two Memos dated 22.01.2009 and 22.04.2009 to the Director-General of the Environment Directorate containing some directives. Anyway, the respondent no. 2, without making any proper inquiry as to security concern of foreign boarders of the hotel, approved of the plan submitted by the respondent no.7 vide Memo No. রাজউক/নঅঅ-২/বি-ছ৩সি-১৫১/০৯/৩৩৯ dated 11.05.2009. After obtaining the sanction from the respondent no. 2, in the first phase, the respondent no.7 demolished the two-storied building situated in the case plot.  Meanwhile, the petitioner filed Title Suit No. 6816 of 2008 in the 7th Court of Joint-District Judge, Dhaka for permanent injunction and the suit is still pending for adjudication. After the terrorist attacks on Taj Hotel and Marriott Hotel in 2008 in the neighbouring countries, the Starwood (Asia Pacific Resource Private Limited) filed an application to the then Chief Adviser of the Caretaker Government Dr. Fakhruddin Ahmed on 08.12.2008 stating its anxiety regarding the safety and security of all guests staying and visiting the Westin Hotel, Dhaka. Thereafter Dr. Fakhruddin Ahmed directed the concerned authority to enquire into the matter and the DGFI (Director-General of Forces Intelligence) enquired thereinto and recommended not to allow anybody to establish any high-rise building adjacent to the Hotel Westin. Be that as it may, the petitioner served a notice demanding justice upon the respondent no. 2 requesting it to cancel the sanction granted in respect of construction of the multi-storied building in the case plot, but without any result. If the contemplated multi-storied building is constructed therein, the security of foreign guests, dignitaries and tourists will be endangered and consequently Foreign Direct Investment (FDI) shall be hampered in Bangladesh. The action of the respondents in allowing the construction of the multi-storied building in the case plot by the respondent no.7 is without lawful authority and of no legal effect.
 
The respondent no. 7 has contested the Rule by filing an Affidavit-in-Opposition. His case, as set out in the Affidavit-in-Opposition, briefly runs as follows:
          The petitioner-company made a proposal to the respondent no. 7 for purchase of the case plot (admitted in Annexure-‘A’), but the said proposal was turned down by him. Having failed to purchase the case plot, the petitioner made correspondences with various authorities averring falsely that the respondent no.7 was trying to transfer the case plot in favour of a third party. Subsequently, the petitioner filed the Writ Petition by suppressing material facts with a view to compelling the respondent no. 7 to sell the case plot to the petitioner-company against his will. The intention of the petitioner in filing the Writ Petition is malafide. By the impugned action of the respondent no.2, no right of the petitioner was infringed and as such it has no locus standi to challenge the said action for its personal benefit. On 19.11.2008, the petitioner filed Title Suit No. 6816 of 2008 in the 7th Court of Joint-District Judge of Dhaka for a declaration that it has acquired easement right to light and air through the case plot stating the self-same facts of the Writ Petition and sought an order injuncting the approval of the building plan by the RAJUK and that suit is still pending for adjudication. When the matter in dispute between the parties is pending before the Civil Court for disposal, the Writ Court has no jurisdiction thereover. The apprehension of the petitioner-company that the Westin Hotel might be made targets of terrorists like the Taj Hotel and the Marriott Hotel is not correct and this has been agitated only for the purpose of filing of the Writ Petition. The Annexure-‘E’ to the Writ Petition is just an application addressed to the then Chief Adviser of the Caretaker Government. However, the contents of Annexure-‘E’ manifest that it was written just for instructing the competent authorities to look after the safety of the Westin Hotel. As per report of the DGFI (Annexure-‘E-1’), it does not indicate that the DGFI inquired into the matter and even if the DGFI conducted any inquiry thereinto, that was done behind the back of the respondent no. 7. The report of the DGFI (Annexure-‘E-1’) is just indicative of security concern of the Westin Hotel. In compliance with all relevant laws regarding construction of the high-rise building in the case plot, the respondent no.7 applied to several offices for obtaining permission to construct the same. In due course, the respondent no.7 obtained sanction to construct the multi-storied building in the case plot from the RAJUK by Memo No. RAJUK/NaAaAa-2/B-R 3C-151/09/339 dated 11.05.2009. He obtained No Objection Certificate under Memo No. KO-Aa/ANA/898/2008/46 dated 26.11.2008 from the Dhaka Water Supply and Sewerage Authority (WASA). He also obtained No Objection Certificate under Memo No. DESCO/ SE&D/ 2008/277 dated 20.10.2008 from the Dhaka Electric Supply Company Limited (DESCO). He further obtained permission under Memo No. B:Aa:JO:8/65 /1307 dated 15.10.2008 from the Titas Gas Transmission  &  Distribution Company Limited. He also obtained permission from the Dhaka City Corporation (DCC) by Memo No. NA PA B/BAHUTAL/08/34 dated 07.10.2008 and No Objection Certificate from the local Ward Commissioner by Memo No. (KA/Aa/PA): 163/08 dated 19.08.2008. He further obtained permission from the Bangladesh Civil Aviation Authority by Memo No. caab/a-a/ats/1501/ 21/07 (sangraha-14)/1631 dated 13.08.2008 and No Objection Certificate from the Fire Service and Civil Defence Department by Memo No. fs & cd/ agni/uma-81/088633 dated 06.11.2008. He also obtained Traffic Certificate from the Police Commissioner’s Office, Dhaka Metropolitan Police by Memo No. shangsthapan/195-2009/384 dated 25.01.2009. He next obtained No Objection Certificate from the Joint-Police Commissioner (Traffic) by Memo No. 119-2009/ fugma commissioner-(Traffic)/1930 dated 10.10.2008 and the same from the Deputy Commissioner (Traffic-North) by Memo No. 3237 dated 29.09.2008. Lastly, on 03.11.2008, the respondent no.7 Dr. S. A. Mahmood filed an application before the Directorate of Environment for according permission to construct the high-rise building in the case plot and accordingly, he got permission to that effect by Memo No. Paribesh/Dha-B/18628/Char-262 dated 15.02.2009 issued under the signature of one Mostafizur Rahman, Director, Environment Directorate, Dhaka; but the petitioner obtained the Rule Nisi and stay-order suppressing that fact and stating falsely  that the respondent no.7, without taking any permission from the Directorate of Environment, got his plan approved by the RAJUK for construction of the multi-storied building therein. As the Rule was obtained by committing fraud upon the court, the same is liable to be discharged. 
 
In the Affidavit-in-Reply dated 14.03.2010 to the Affidavit-in-Opposition filed on behalf of the petitioner, it has been stated  that although the Ministry of Environment and Forest instructed the Environment Directorate vide Memo dated 22.01.2009 to do the needful under intimation thereto, but the respondent no. 7 obtained “অবসহানগত ছাড়পত্র” dated 15.02.2009 from the said Directorate mysteriously. By the Memo dated 24.04.2009, the said Ministry directed the Environment Directorate not to issue any clearance certificate in favour of the respondent no. 7. Given this scenario, the “অবসহানগত ছাড়পত্র” dated 15.02.2009 issued by the Directorate of Environment is ineffective. The petitioner has the locus standi to ventilate its grievances before the Writ Court as it has the right to save its property and the lives of the boarders of the hotel. The respondent no. 7 can not give any assurance that no militant or fundamentalist will purchase any apartment of the contemplated high-rise building in the case plot to launch any attack on the Westin Hotel. Under the given circumstances, the petitioner-company is entitled to protect its property under Article 32 of the Constitution. Section 14 of the Building Construction Act, 1952 bars the jurisdiction of the Civil Court and as such the petitioner’s only remedy lies before the High Court Division under Article 102 of the Constitution. According to Rule 45 of the ঢাকা মহানগর ইমারত নির্মাণ বিধিমালা, ২০০৬, the authority may stay the construction of multi-storied building in the case plot if the lives and properties of the neighbouring people are threatened. In the instant case, the Hotel Westin’s security and the lives of its boarders (mostly foreign) are impliedly threatened.
 
The case of the petitioner in Writ Petition No. 6242 of 2009 briefly runs as follows:
          The petitioner is the owner of the case plot and has been in possession of the same by constructing a two-storied building for about 40 years. At one point of time, he executed an agreement with the NAVANA Real Estate Ltd. in the month of June, 2008 for constructing a multi-storied building therein. Accordingly, a power-of-attorney was executed in favour of the said developer empowering it to construct the building. In compliance with the relevant laws, the petitioner obtained clearance certificates from various authorities for the purpose. Thereafter he started the construction of the multi-storied building by way of demolishing the residential building situated in the case plot. While the construction work of the building was underway, the petitioner through his developer company received a Rule-issuing order along with a stay-order from the High Court Division issued in Writ Petition No. 4020 of 2009 on 04.06.2009 filed by the Unique Hotel and Resorts Limited. On perusal of the Writ Petition 4020 of 2009, the petitioner came to learn that the Unique Hotel and Resorts Limited made a false statement to the effect that Dr. S. A. Mahmood, without approval of the Environment Directorate, was constructing the building in the case plot and mainly on the basis of that statement, the company obtained the Rule Nisi and order of stay. On 03.07.2009, the present petitioner received Memo No. PARIBESH/ DHA /18628 /PROSHASHA-1334 dated 29.06.2009 issued under the signature of one Zamshed Ahmed, Director, Directorate of Environment staying operation of the Memo containing “অবসহানগত ছাড়পত্র” by referring to the order dated 04.06.2009 passed by the High Court Division in Writ Petition No. 4020 of 2009. While the matter in question was pending before the High Court Division in Writ Petition No. 4020 of 2009, on 27.08.2009 the present writ petitioner received another Memo No.  paribesh/dha bi/ 18628/proshashan-1737 dated 26.08.2009 issued under the signature of the respondent no. 4 cancelling the “অবসহানগত ছাড়পত্র” dated 15.02.2009 without issuing any show cause notice upon him or giving him any opportunity of being heard. However, on 19.11.2008, the respondent no. 6 (Unique Hotel and Resorts Limited) filed Title Suit No. 6816 of 2008 in the 7th Court of the Joint-District Judge, Dhaka for a declaration to the easement right of the Westin Hotel to light and air through the case plot and that suit is still pending for disposal. Anyway, as the impugned Memo dated 26.08.2009 is malafide and in violation of the principle of natural justice, the same is without lawful authority and of no legal effect.
 
The respondent nos. 4, 5 and 6 have contested the Rule by filing three separate Affidavits-in-Opposition in Writ Petition No. 6242 of 2009. Their case, in short is as follows:
On the basis of a complaint, the respondent no.4 cancelled the “অবসহানগত ছাড়পত্র” as the matter involved the security and safety of foreign guests, tourists and dignitaries staying in the Hotel Westin. The cancellation of the “অবসহানগত ছাড়পত্র” by the Memo dated 26.08.2009 is perfectly justified in the facts and circumstances of the case. Furthermore, the petitioner did not have recourse to the appellate authority in terms of Section 14 of the পরিবেশ সংরক্ষণ আইন, ১৯৯৫ against the impugned order of cancellation dated 26.08.2009. As the petitioner did not exhaust the appellate forum as contemplated by Section 14 of the said Ain, the Writ Petition is not maintainable. As such, the Rule is liable to be discharged.
 
The case of the petitioner in Writ Petition No. 6338 of 2009, in brief, is as follows:
          With a view to constructing a multi-storied building in the case plot, the petitioner obtained sanction from the RAJUK by Memo No. RAJUK/NaAaAa-2/B-R3C-151/09/339 dated 11.05.2009. Besides, he also obtained clearance certificates from various authorities concerned in that regard as required by relevant laws. But curiously enough, without affording him any opportunity of being heard, the RAJUK cancelled the sanction for construction of the multi-storied building in the case plot by Memo No. RAJUK/NaAaAa-2B/R3C-151/09 /301 Sthatha dated 07.09.2009 in pursuance of a decision of a meeting of the Building Construction Committee alleged to be held on 03.09.2009. Since the impugned Memo dated 07.09.2009 is tainted with bad faith and in violation of the principle of natural justice, it is without lawful authority and of no legal effect.
 
The respondent nos. 1 and 4 have contested the Rule by filing two separate Affidavits-in-Opposition in Writ Petition No. 6338 of 2009. Their case, in short, is as under:
The petitioner is a lessee under the RAJUK in the case plot subject to the stipulations in the deed of standard lease. After making necessary enquiries, the RAJUK granted sanction to him for constructing a multi-storied building therein by Memo No. RAJUK/ NaAaAa-2/B-R3C-151/09/339 dated 11.05.2009. But subsequently, the RAJUK authority came to know that there was security concern of foreign guests, tourists and dignitaries staying in the Westin Hotel and on the basis of cancellation of the “অবসহানগত ছাড়পত্র” given by the Environment Directorate, the RAJUK authority revoked the sanction for construction of the multi-storied building in the case plot by the impugned Memo dated 07.09.2009. In the facts and circumstances of the case, the revocation of the sanction by the impugned Memo dated 07.09.2009 is perfectly justified. So the Rule is liable to be discharged. 
 
At the outset, Mr. Abdul Baset Majumdar, the learned Advocate appearing on behalf of the petitioner-company in Writ Petition No. 4020 of 2009, submits that admittedly the case plot is adjacent  to the Five-Star Westin Hotel, Gulshan-2, Dhaka and since the respondent no.7 Dr. S.A. Mahmood got a plan approved  from the RAJUK for construction of a multi-storied building therein, the security and safety of foreign guests, tourists and dignitaries staying in the Westin Hotel would be at stake thereby hampering  the business of the company and the DGFI report dated 12.05.2009 rightly vindicated the security concern of the company and in this perspective, the sanction granted by the RAJUK for construction of the multi-storied building in the case plot was rightly revoked during the pendency of the Writ Petition.
 
Mr. Abdul Baset Majumdar next submits that at the time of granting sanction for construction of the high-rise building in the case plot, the RAJUK authority could not visualize the security concern of the company and subsequently, it appreciated the same and accordingly, it revoked the sanction for constructing the multi-storied building therein and this revocation can not be regarded as without lawful authority in view of Annexure-‘E-1’ to the Writ Petition No. 4020 of 2009.
 
Mr. M. Sayed Ahmed, another learned Advocate appearing on behalf of the Unique Hotel and Resorts Limited, submits that the Title Suit No. 6816 of 2008 of the 7th Court of the Joint-District Judge, Dhaka was filed for a declaration of the easement right of the Westin Hotel to light and air  through the case plot and that suit is admittedly pending for adjudication in the Court below and the company filed the Writ Petition No. 4020 of 2009 challenging the sanction accorded to Dr. S. A. Mahmood for construction of the high-rise building  in the case plot and as the jurisdiction of the Civil Court stands ousted by the provisions of Section 14 of the Building Construction Act, the company had no other option but to file the Writ Petition No. 4020 of 2009 and in such view of the matter,  the same is maintainable.
 
Mr. M. Sayed Ahmed also submits that in the light of the Memo of the Ministry of Environment and Forest dated 22.04.2009 directing the Environment Directorate not to provide any “অবসহানগত ছাড়পত্র” to Dr. S. A. Mahmood for construction of the multi-storied building in the case plot, the “অবসহানগত ছাড়পত্র” dated 15.02.2009 is ineffective and invalid for all practical purposes.
 
Mr. A. J. Mohammad Ali, the learned Advocate appearing on behalf of the petitioners in Writ Petition Nos. 6242 of 2009 and 6338 of 2009, submits that the “অবসহানগত ছাড়পত্র” from the Directorate of Environment was taken on 15.02.2009 by Dr. S. A. Mahmood; but suppressing this fact, the Unique Hotel and Resorts Limited Company filed the Writ Petition No. 4020 of 2009 and obtained the Rule Nisi and stay-order on 04.06.2009 and on this count alone, the Rule issued in that Writ Petition No. 4020 of 2009 should be discharged.
 
Mr. A. J. Mohammad Ali further submits that in consideration of all the facts and circumstances pertaining to the matter, the RAJUK accorded sanction to Dr. S. A. Mahmood on 11.05.2009 for construction of the multi-storied building in the case plot; but strangely enough, the sanction was rescinded by the impugned Memo dated 07.09.2009 in the face of the revocation of the “অবসহানগত ছাড়পত্র” by the Environment Directorate by the Memo dated 26.08.2009 without adhering to the principle of “Audi Alteram Partem” and such being the state of affairs, the impugned orders of the Environment Directorate dated 26.08.2009 and the RAJUK dated 07.09.2009 are without jurisdiction and malafide and from this standpoint, Dr. S. A. Mahmood felt legally obligated to file Writ Petition Nos. 6242 of 2009 and 6338 of 2009 under Article 102 of the Constitution.
 
On the contrary, Mr. A.K.M. Nazrul Islam, the learned Advocate appearing on behalf of the respondent-RAJUK, submits that as against the impugned order dated 07.09.2009, Dr. S. A. Mahmood ought to have preferred an appeal to the appellate authority under Section 15 of the Building Construction Act; but since he did not do so, the Writ Petition No. 6338 of 2009 is incompetent. In this connection, Mr. A. K. M. Nazrul Islam relies on the decision in the case of Shahabuddin Chisti Vs. Rajdhani Unnayan Katripakhya reported in 6 ADC 271.
 
Mr. A.K.M. Nazrul Islam also submits that the RAJUK correctly appreciated the security concern of foreign guests, tourists and dignitaries staying in the Westin Hotel in view of the report of the DGFI (Annexure-‘E-1’ to the Writ Petition No. 4020 of 2009) and as such the RAJUK authority rightly revoked the sanction by the impugned order dated 07.09.2009.
 
Mr. A.K.M. Nazrul Islam also submits that in the facts and circumstances of the case, the impugned order dated 07.09.2009 is perfectly justified, even though Dr. S.A. Mahmood was not given any opportunity of being heard prior to issuance of the same.
 
Mr. A.K.M. Nazrul Islam further submits that in view of the provisions of Section 3 of the Building Construction Act and Section 21 of the General Clauses Act, the RAJUK authority has the inherent power revoke or withdraw any sanction for construction and accordingly, it revoked the sanction by the impugned order dated 07.09.2009.
 
In a last-ditch attempt, Mr. Mr. A.K.M. Nazrul Islam submits that as per second proviso to Section 3A of the Building Construction Act, the construction of the multi-storied building in the case plot would be nothing but a nuisance to the boarders of the Westin Hotel and that being so, the RAJUK rightly rescinded the sanction by the impugned order dated 07.09.2009 and as such no exception can be taken thereto.
 
Mr. A.F. Hassan Ariff, the learned Advocate appearing on behalf of the respondent no. 7-Dr. S. A. Mahmood in Writ Petition No.4020 of 2009, submits  that the “অবসহানগত ছাড়পত্র” was given by the Environment Directorate on 15.02.2009; but stunningly enough,  the affidavit in that Writ Petition was sworn on 03.06.2009 asserting that Dr. S. A. Mahmood started construction of the multi-storied building in the case plot without having any “অবসহানগত ছাড়পত্র” from the Environment Directorate and thus by perpetration of fraud upon the Court, the Unique  Hotel and Resorts Limited obtained the Rule Nisi  and stay-order on 04.06.2009 and this conduct of the company clearly demonstrates  the malafides or bad faith on its part in filing the said Writ Petition and in this view of the matter, the Rule issued therein must fail.
 
Mr. M. K. Rahman, the learned Additional Attorney-General appearing on behalf of the added respondent no.8-Ministry of Home Affairs in Writ Petition No. 4020 of 2009, submits that because of security concern of the diplomatic areas in general and the foreign boarders of the Westin Hotel in particular, there should not be any high-rise building in the case plot and the RAJUK authority finally appreciated the matter and revoked the sanction by the impugned order dated 07.09.2009.
 
Mr. Korunamoy Chakma, the learned Deputy Attorney-General appearing on behalf of the respondent nos.1-4 in Writ Petition No. 6242 of 2009, submits that in the facts and circumstances of the case, the Directorate of Environment lawfully cancelled the “অবসহানগত ছাড়পত্র” by the impugned Memo dated 26.08.2009 and by that reason, it does not call for any interference.
 
Mr. Korunamoy Chakma also submits that it is true that the impugned Memo dated 26.08.2009 cancelling the sanction of the RAJUK with reference to construction of the multi-storied building in the case plot was issued without hearing Dr. S. A. Mahmood; but in the light of the decision in the case of Abdur Rahman and others V. Sultan @ Sultan & others reported in 35 DLR (AD) 51, the impugned order dated 26.08.2009 is sustainable in law.
 
We have heard the learned Advocates Mr. Abdul Baset Majumdar, Mr. M. Sayed Ahmed, Mr. A. J. Mohammad Ali, Mr. A. F. Hassan Ariff and the Additional Attorney-General Mr. M. K. Rahman and the Deputy Attorney-General Mr. Korunamoy Chakma and perused the Writ Petitions, Affidavits-in-Opposition, Affidavit-in-Reply and relevant Annexures annexed thereto.
 
Mr. A.K.M. Nazrul Islam, Mr. Abdul Baset Majumdar and Mr. M. Sayed Ahmed have particularly laid emphasis on the report of the DGFI dated 12.05.2009 (Annexure-‘E-1` to the Writ Petition No. 4020 of 2009) as to the security concern of the Westin Hotel and its foreign boarders. From a perusal of Annexure-‘E-1’, it appears that the DGFI was concerned with the security of the entire diplomatic zone in the vicinity of the case plot. This Annexure-‘E-1’ does not specifically and substantially refer to any security threat that may emanate from the construction of the high-rise building therein; rather the security concern expressed in Annexure-‘E-1’ seems to be vague, nebulous and unwarranted. Mere apprehension of security threat does not ipso facto hold good. The construction of the multi-storied building in the case plot can not be halted in any event. Over and above, it is the right of Dr. S. A. Mahmood to enjoy his own property in any manner he likes unless it is barred by any specific restriction imposed by law. It may be recalled that it is on record that at one point of time, the Unique Hotel and Resorts Limited made a proposal to Dr. S. A. Mahmood to purchase the case plot, but he did not consent thereto. As we see it, this phenomenon prompted the company to lodge complaints with various authorities against Dr. S. A. Mahmood’s contemplated construction of the high-rise building in the case plot resulting in eventual revocation of the অবসহানগত ছাড়পত্র issued by the Environment Directorate and the sanction given by the RAJUK behind his back. Although the “অবসহানগত ছাড়পত্র” dated 15.02.2009 was issued by the Directorate of Environment  in favour of Dr. S. A. Mahmood; but for reasons best known to itself, the company suppressed this fact in Writ Petition  No. 4020 of 2009 and obtained the Rule Nisi and stay-order on 04.06.2009. This conduct of the company, no doubt, betokens bad faith or malafides on its part in obtaining the Rule Nisi and stay-order in that Writ Petition. On this score alone, the Rule issued therein must fail.
 
It may be recalled that the impugned order dated 26.08.2009 was issued cancelling the “অবসহানগত ছাড়পত্র” dated 15.02.2009. Besides, the impugned order dated 07.09.2009 was made rescinding the sanction for construction of the high-rise building in the case plot. It is undisputed that in both the instances, Dr. S. A. Mahmood was condemned unheard. In other words, the principle of “Audi Alteram Partem” was not adhered to prior to rescission of the “অবসহানগত ছাড়পত্র” by the Environment Directorate and the sanction by the RAJUK authority.    
 
Mr. A.K.M. Nazrul Islam candidly concedes that Dr. S. A. Mahmood did not violate any of the terms and conditions of the sanction as provided by Section 9 of the Building Construction Act and in this view of the matter, the question of cancellation of sanction for construction of the multi-storied building in the case plot does not arise at all on that ground.
 
The principles of natural justice are applied to administrative process to ensure procedural fairness and to free it from arbitrariness. Violation of these principles results in jurisdictional errors. Thus in a sense, violation of these principles constitutes procedural ultra vires. It is, however, impossible to give an exact connotation of these principles as its contents are flexible and variable depending on the circumstances of each case, i.e., the nature of the function of the public functionary, the rules under which he has to act and the subject-matter he has to deal with. These principles are classified into two categories-(i) a man can not be condemned unheard (audi alteram partem) and (ii) a man can not be the judge in his own cause (nemo debet esse judex in propria causa). The contents of these principles vary with the varying circumstances and those can not be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. In applying these principles, there is a need to balance the competing interests of administrative justice and the exigencies of efficient administration. These principles were applied originally to courts of justice and now extend to any person or body deciding issues affecting the rights or interests of individuals where a reasonable citizen would have legitimate expectation that the decision-making process would be subject to some rules of fair procedure. These rules apply, even though there may be no positive words in the statute requiring their application.
 
Lord Atkin in R. v. Electricity Commissioners ([1924] 1 KB 171) observed that the rules of natural justice applied to ‘any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially’. The expression ‘having the duty to act judicially’ was used in England to limit the application of the rules to decision-making bodies similar in nature to a court of law. Lord Reid, however, freed these rules from the bondage in the landmark case of Ridge v. Baldwin ([1964] AC 40). But even before this decision, the rules of natural justice were being applied in our country to administrative proceedings which might affect the person, property or other rights of the parties concerned in the dispute. In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. In this connection, reliance may be placed on the cases of The University of Dacca and another Vs. Zakir Ahmed, 16 DLR (SC) 722; Sk. Ali Ahmed Vs. The Secretary, Ministry of Home Affairs and others, 40 DLR (AD)170; Habibullah Khan Vs. Shah Azharuddin Ahmed and others, 35 DLR (AD)72; Hamidul Huq Chowdhury and others Vs. Bangladesh and others, 33 DLR 381 and Farzana Haque Vs. The University of Dhaka and others, 42 DLR 262.
 
In England, the application of the principles of natural justice have been expanded by introducing the concept of ‘fairness’. In Re Infant H(K) ([1967] 1 All E.R. 226), it was held that whether the function discharged is quasi-judicial or administrative, the authority must act fairly. It is sometimes thought that the concept of ‘acting fairly’ and ‘natural justice’ are different things, but this is wrong as Lord Scarman correctly observes that the Courts have extended the requirement of natural justice, namely,  the duty to act fairly, so that it is required of a purely administrative act (Council of Civil Service Union V. Minister for the Civil Service[1984] 3 All E.R. 935). Speaking about the concept, the ‘acting fairly’ doctrine has at least proved useful as a device for evading some of the previous confusions. The Courts now have two strings to their bow. An administrative act may be held to be subject to the requirements of natural justice either because it affects rights or interests and therefore involves a duty to act judicially, in accordance with the classic authorities and Ridge V. Baldwin; or it may simply be held that in our modern approach, it automatically involves a duty to act fairly and in accordance with natural justice. The Indian Supreme Court has adopted this principle holding “….this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands” (Swadeshi Cotton Mills V. India, AIR 1981 SC 818). The English Courts have further expanded the horizon of natural justice by importing the concept of ‘legitimate expectation’ and holding that from promise or from established practice, a duty to act fairly and thus to comply with natural justice may arise. Thus the concepts of ‘fairness’ and ‘legitimate expectation’ have expanded the applicability of natural justice beyond the sphere of right. To cite a few examples, not only in the case of cancellation of licence which involves denial of a right, but also in the case of first time grant of licence and renewal of licence, the principle of natural justice is attracted in a limited way in consideration of legitimate expectation. An applicant for registration as a citizen, though devoid of any legal right, is entitled to a fair hearing and an opportunity to controvert any allegation levelled against him. An alien seeking a visa has no entitlement to one, but once he has the necessary documents, he does have the type of entitlement that should now be protected by due process, and the Government should not have the power to exclude him summarily.
 
In the case of Chingleput Bottlers V. Majestic Bottlers reported in AIR 1984 SC 1030, the Indian Supreme Court has made certain observations which create an impression that the rules of natural justice are not applicable where it is a matter of privilege and no right or legitimate expectation is involved. But the application of the rules of natural justice are no longer tied to the dichotomy of right-privilege. It has been stated in “Administrative Law” by H.W.R. Wade, 5th edition at page-465: “For the purpose of natural justice, the question which matters is not whether the claimant has some legal right, but whether the legal power is being exercised over him to his disadvantage. It is not a matter of property or of vested interests, but simply of the exercise of Governmental power in a manner which is fair …” In the American jurisdiction, the right-privilege dichotomy was used to deny due process hearing where no right was involved. But starting with Gonzalez V. Freeman (334 F. 2d 570), the Courts gradually shifted in favour of the privilege cases and in the words of Professor Schwartz, “The privilege-right dichotomy is in the process of being completely eroded” (“Administrative Law”, 1976, Page-230). Article 31 of our Constitution incorporating the concept of procedural due process, the English decisions expanding the frontiers of natural justice are fully applicable in Bangladesh.
 
In English law, the rules of natural justice perform a function, within   a limited field, similar to the concept of procedural due process as it exists in the American jurisdiction. Following the English decisions, the Courts of this sub-continent have held that the principles of natural justice should be deemed incorporated in every statute unless it is excluded expressly or by necessary implication by any statute.
 
The basic principle of fair procedure is that before taking any action against a man, the authority should give him notice of the case and afford him a fair opportunity to answer the case against him and to put his own case. The person sought to be affected must know the allegation and the materials to be used against him and he must be given a fair opportunity to correct or contradict them. The right to a fair hearing is now of universal application whenever a decision affecting the rights or interest of a man is made. But such a notice is not required where the action does not affect the complaining party.
 
It is often said that mala fides or bad faith vitiates everything and a mala fide act is a nullity. What is malafides?  Relying on some observations of the Indian Supreme Court in some decisions, Durgadas Basu J held, “It is commonplace to state that mala fides does not necessarily involve a malicious intention. It is enough if the aggrieved party establishes: (i) that the authority making the impugned order did not apply its mind at all to the matter in question; or (ii) that the impugned order was made for a purpose or upon a ground other than what is mentioned in the order.” (Ram Chandra Vs. Secretary to the Government of W.B, AIR 1964 Cal 265).
 
To render an action mala fide, “There must be existing definite evidence of bias and action which can not be attributed to be otherwise bona fide; actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act” (Punjab Vs. Khanna, AIR 2001 SC 343).
 
The principle of reasonableness is used in testing the validity of all administrative actions and an unreasonable action is taken to have never been authorized by the Legislature and is treated as ultra vires. According to Lord Greene, an action of an authority is unreasonable when it is so unreasonable that no man acting reasonably could have taken it. This has now come to be known as Wednesbury unreasonableness. (Associated Provincial Picture Vs. Wednesbury Corporation [1948]1KB 223).
 
In Article 226 of the Indian Constitution, we do not come across the expression “if satisfied that no other equally efficacious remedy is provided by law”; but in our constitution, this expression is very much there in Article 102(2)(a). So there is a constitutional bar to the invocation of the Writ Jurisdiction of the High Court Division under Article 102(2)(a) of the Constitution, if there is any other equally efficacious remedy is provided by law.
 
In England, prerogative writs particularly writs of mandamus were not issued by the Court when alternative remedy under the statute was available. This was a self-imposed rule of the Court on the ground of public policy. Issuance of writs when alternative remedies were not availed of would undermine the Subordinate Courts and Tribunals. Under the Pakistan Constitution of 1956, the Supreme Court and the High Courts in issuing prerogative writs used to follow the rule of the English Court. It was, however, pointed out that this rule of exhaustion of alternative remedies was the rule of the Court and did not affect the jurisdiction of the Court to entertain writ petitions. But the Pakistan Constitution of 1962 provided that the High Courts would interfere only when there was no other adequate remedy available to the petitioner. The same position has been maintained in our Constitution which stipulates non-availability of efficacious remedy as a pre-condition for interference by the High Court Division.
 
 In the case of Shafiqur Rahman v. Certificate Officer, Dhaka and another reported in 29DLR SC 232, the Supreme Court noted the change and observed in paragraph 28:
 
“... if the alternative remedy is adequate and equally efficacious, in that case, such an alternative remedy is a positive bar to the exercise of the writ jurisdiction, even though the writ concerned is in the nature of certiorari.”
 
Article 102(2)(a) having incorporated the rule of exhaustion of statutory remedies, existence of efficacious remedy will preclude reliefs  thereunder. The bar of efficacious remedy is not attracted when an infringement of fundamental right is alleged.
 
In the case of Dhaka Warehouse Ltd. and another Vs. Assistant Collector of Customs and others reported in 1991 BLD(AD) 327, it was held in paragraph 12:
 
“12. In principle, where an alternative statutory remedy is available, an application under Article 102 may not be entertained to circumvent a statutory procedure. There are, however, exceptions to the rule. Without attempting an exhaustive enumeration of all possible extraordinary situations, we may note a few of them. In spite of an alternative statutory remedy, an aggrieved person may take recourse to Article 102 of the Constitution where the vires of a statute or a statutory provision is challenged; where the alternative remedy is not efficacious or adequate; and, where the wrong complained of is so inextricably mixed up that the High Court Division may, for the prevention of public injury and the vindication of public justice, examine that complaint. It is needless to add that the High Court Division is to see that the aggrieved person must have good reason for by-passing an alternative remedy.”
 
If the impugned action is wholly without jurisdiction in the sense of not being authorized by the statute or is in violation of a constitutional provision, a Writ Petition will be maintainable without exhaustion of the statutory remedy. Besides, on the ground of malafides, the petitioner may come up with a Writ Petition by-passing the statutory alternative remedy.  It is well-settled that malafides goes to the root of jurisdiction and if the impugned action is malafide, the alternative remedy provided by the statute need not be availed of. Another exception has been made in the case of M.A. Hai and others Vs. Trading Corporation of Bangladesh reported in 40 DLR (AD) 206 where the Appellate Division has held in paragraph 10 that availability of alternative remedy by way of appeal or revision will not stand in the way of invoking the writ jurisdiction of the High Court Division raising purely a question of law or interpretation of statute.
 
Coming back to the present case, it is an admitted fact that Dr. S. A. Mahmood  did not resort to the appellate authority as contemplated  by Section 15  of the Building Construction Act against the impugned order dated 07.09.2009 cancelling the sanction for construction of the high-rise building in the case plot. It is further admitted that he did not prefer any appeal under Section 14 of the পরিবেশ সংরক্ষণ আইন, ১৯৯৫ against the impugned order dated 26.08.2009 rescinding the “অবসহানগত ছাড়পত্র” dated 15.02.2009.
 
It goes without saying that in view of the Ministry of Environment and Forest’s Memo dated 22.01.2009, the Directorate of Environment issued the “অবসহানগত ছাড়পত্র” dated 15.02.2009 with reference to the construction of the multi-storied building in the case plot. So we are not impressed by the contention of Mr. M. Sayed Ahmed that the “অবসহানগত ছাড়পত্র” dated 15.02.2009 is ineffective and invalid for all practical purposes in the light of the Memo of the said Ministry dated 22.04.2009.
 
Section 3 of the Building Construction Act deals with restriction as regards construction of any building or excavation of any tank without the previous sanction of an Authorized Officer or a Building Construction Committee, as the case may be. That sanction was granted for construction of a high-rise building in the case plot by the Memo dated 11.05.2009. Section 21 of the General Clauses Act provides for the applicability of the principle of “locus penitentiae”. As per that principle, the authority competent to make an order has the power to undo the same; but the order can not be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual (Ziauddin Vs. Pakistan Defence Housing Authority, 1999 PLC 723). It appears that pursuant to the said Memo dated 11.05.2009, Dr. S. A. Mahmood demolished the pre-existing two-storied residential building and started constructing the high-rise building in the case plot. In fact, the Memo dated 11.05.2009 was acted upon before issuance of the impugned Memo dated 07.09.2009. So we hold that Mr. A. K. M. Nazrul Islam has erroneously invoked Section 21 of the General Clauses Act.
 
As indicated earlier, the report of the DGFI (Annexure-‘E-1’ to Writ Petition No. 4020 of 2009) relates to the security concern of the diplomatic zone of Dhaka Metropolitan City. We fail to understand as to why it was perceived by the RAJUK and the Environment Directorate that the contemplated high-rise building in the case plot would pose a security threat to the Westin Hotel and its boarders especially when there are several existing high-rise buildings in its vicinity.
 
Having regard to the facts and circumstances of the case, it seems to us that the impugned Memo dated 26.08.2009 cancelling the “অবসহানগত ছাড়পত্র” dated 15.02.2009 was issued in colourable exercise of power and for collateral purpose. It is very strange that the RAJUK issued the impugned Memo dated 07.09.2009 cancelling the sanction for construction of the high-rise building in the case plot in a very mechanical, thoughtless, slipshod and cavalier manner. A reference to the impugned Memo dated 07.09.2009 positively indicates that the RAJUK just followed suit in the matter of revocation of sanction. It is an indisputable fact that Dr. S. A. Mahmood was not afforded any opportunity of being heard prior to issuance of the impugned Memos dated 26.08.2009 and 07.09.2009. These two impugned Memos amply demonstrate that both the Environment Directorate and the RAJUK did not apply their mind to the matter. In other words, it was a case of total non-application of mind on the part of the RAJUK and the Environment of Directorate. They signally skirted around their duty to act fairly and reasonably. Neither the Building Construction Act, 1952 nor the পরিবেশ সংরক্ষণ আইন, ১৯৯৫ expressly or impliedly excludes the operation of the principle of “Audi Alteram Partem”. As Dr. S. A. Mahmood’s right to enjoyment of the case plot was adversely affected by the impugned Memos of the Environment Directorate and the RAJUK; in all fairness and reasonableness, he ought not to have been condemned unheard. To all intents and purposes, in our assessment, the Environment Directorate and the RAJUK’S impugned Memos dated 26.08.2009 and 07.09.2009 respectively are unreasonable in the Wednesbury sense. As the said Memos dated 26.08.2009 and 07.09.2009 are malafide and without jurisdiction, Dr. S.A. Mahmood was not required to approach the Appellate Authority  either under Section 14  of the পরিবেশ সংরক্ষণ আইন, ১৯৯৫  or under Section 15 of the Building Construction Act, 1952 and he rightly approached the High Court Division directly under Article 102 of the Constitution.
 
We do not find any material on record to hold that Dr. S. A. Mahmood infringed any of the provisions of Rule 45 of the ঢাকা মহানগর ইমারত নির্মাণ বিধিমালা, ২০০৬. Undeniably, he did not violate any of the provisions of Section 9 of the Building Construction Act, 1952. According to the submission of Mr. A.K.M. Nazrul Islam, the construction of the high-rise building in the case plot would be a nuisance to the Hotel Westin and its neighbourhood as postulated by second proviso to Section 3A of the Building Construction Act. But no material is forthcoming on record to justify this submission of Mr. A.K.M. Nazrul Islam.
 
As to the reliance of Mr. A.K.M. Nazrul Islam on the decision in the case of Shahabuddin Chisti Vs. Rajdhani Unnayan Katripakhya and another reported in 6 ADC 271, we find that the facts and circumstances of that case are quite distinguishable from those of the instant case.  Secondly, in that case, the filing of a suit was found to be not maintainable as the Building Construction Act provides for a special remedy by way of appeal. No suit having been instituted by Dr. S. A. Mahmood, his two Writ Petitions, namely, Writ Petition Nos. 6242 of 2009 and 6338 of 2009 have already been found maintainable by us. In such a posture of things, the reference to that decision does not appear to be of any avail to Mr. A.K. M. Nazrul Islam.
 
With regard to the reference to the decision in the case of Abdur Rahman and others Vs. Sultan @ Sultan & others reported in 35DLR(AD)51 made by the learned Deputy Attorney-General Mr. Korunamoy Chakma, we opine that the said decision, in the facts and circumstances of the case in hand, has no manner of application. So the reference to the above decision by Mr. Korunamoy Chakma does not help him in any way.
 
Mr. Abdul Baset Majumdar relies on the decision in the case of V.M. Kurian Vs. State of Kerala and others reported in AIR 2001 Supreme Court 1409 in support of his argument that for public safety, both the Environment Directorate and the RAJUK rightly issued the impugned Memos dated 26.08.2009 and 07.09.2009 respectively. The facts and circumstances of that case are ex-facie distinguishable from those of the present case. So we do not find any relevance and applicability of that decision to the facts and circumstances of this case.
 
Admittedly, the Unique Hotel and Resorts Limited Company filed Title Suit No. 6816 of 2008 in the 7th Court of Joint-District Judge, Dhaka for a declaration of easement right to light and air through the case plot. It is also undisputed that the suit is still pending for adjudication. Although the reliefs sought for in Writ Petition No. 4020 of 2009 and those sought for in Title Suit No. 6816 of 2008 are not one and the same, but nevertheless the company does not seem to be interested in getting the said suit disposed of on merit with utmost expedition for inexplicable and unfatho-mable reasons. 
 
Having regard to the facts and circumst-ances of the case and in view of the foregoing discussions, it transpires to us that as a pressure strategy, the company has filed the Writ Petition No. 4020 of 2009 against Dr. S. A. Mahmood in particular in order to compel him to yield to its undue pressure so that at one point of time, he may agree to sell the case plot thereto.
 
Having considered all the aspects of the case, we are of the considered view that there is no merit in the Rule issued in Writ Petition No. 4020 of 2009 and we do find merit in the Rules issued in Writ Petition Nos. 6242 of 2009 and 6338 of 2009.
 
Accordingly, the Rule issued in Writ Petition No. 4020 of 2009 is discharged without any order as to costs. Consequentially and necessarily, the Rules issued in Writ Petition Nos. 6242 of 2009 and 6338 of 2009 are made absolute without any order as to costs. It is declared that the impugned Memo No. Paribesh/Dhabi/18628/Proshason-1737 dated 26.08.2009 (Annexure-‘B’) issued by the respondent no. 4 in Writ Petition No. 6242 of 2009 cancelling the “অবসহানগত ছাড়পত্র” dated 15.02.2009 is declared to be without lawful authority and of no legal effect. It is further declared that the impugned Memo No. RAJUK/NaAaAa-2B/R3C-151/09/301 Sthatha dated 07.09.2009 (Annexure-‘C’) issued by the respondent no. 2 in Writ Petition No. 6338 of 2009 revoking the sanction for construction of the high-rise building in the case plot as was given by Memo No. RAJUK/NaAaAa-2/B-R3C-151/09/339 dated 11.05.2009 (Annexure-‘A’) is without lawful authority and of no legal effect.
 
Let a copy of this judgment be transmitted immediately to the concerned respondents each.
 
Ed.