176 177 RABIA BHUIYAN,MP vs LGRD 59 DLR (AD) (2007) 59 DLR (AD) (2007) RABIA BIIUIYAN, MP vs LGRD (MdTafazzllllslamJ)

judgment of the Administrative Appellate Tribunal APPELLATE DIVISION Hygienic environment is an integral facet of right to 3. 11)the writ petition it was, inter alia, stated and other connected papers. that the writ petitioner, a former Member of the (Civil) healthy lite andit would be impossible to hve with human Parliament trom Sonargaon area, a fonner Minister Md Ruhul Amin J Rabia Bhuiyan, MP...... dignity without a humane and healthy environmental 6. There is no dispute that the petitioners of Social Welfare and Women's Affairs, has rendered 9 years 9 months continuous service as MM Ruhul Amin J .Appellant. protection. Tberet()re, it has now become a matter of Md Tafazzul Islam J undertaken. various steps to alleviate social work-charged basis and thereafter he was absorbed vs grave conce..,? for human existence. Promoting environ- injustice; the Mi.tiistry,Local Government and Rural against regular substantive post in the Department ment protection implies maintenance of the environment Judgment Ministry ofLGRD & others.. Development i.e. LGRD, the Ministry of Health and without any break of service. It is also undisputed August 27th, 2005 as a whole comprising the man-made and the natural Family Welfare, Dr AZM ltlikhar Hussain, the that one Md. Harun-ur-Rashid, UD Assistant of the Respondents* environment. Therefore, there is a constitutional imper- Deputy Programme Manager Arsenic of the same Department who rendered 6 years 2 months Environment Conservation Act II ,,1 199:') i ative of the State Government and tbemunicipalities not Ministry of Health, the Chief Engineer, Department and 27 days of services on work-charged basis, on f Section 4 only to ensure all(Jsafeguard proper environment but also of Public Health Engineering i.e. DPHE, the his retirement was given full pension benefits t covering the period of his services as an work- Constitution o"'HangIadesh, 1'172 an imperative duty to take adequate measures to promote, respondent Nos.l"4 respyctivt!ly, being responsible for prevention of drinking of arsenic contaminated charged employee but in the case of the petitioner Adides 15(a), 18(1),31 & 32 protect and improve both the man-made and the natural the same benefit was denied. Thus there has been 11thus appears Ihat Ihe High Court Division I environm"nt. ..(24-25) water, are involved with the projects for installation of tubewells for "safe water" throughout the palpable discrimination in respect of the petitioner. fell in error in rejet'ting the writ petition Virendar Gaur vs State of flacyana (1995)2 SCC country; UNICEF, the respondent No.5, supported The Administrafive Appellate Tribunal further summarily Wjj!lOutat all considering Ihe .'espon- found that in case of one Shafiuddin Ahmed UD 577; MC Mehta vs Union oflndia 1999 (6) sce 12; Dr safe-water supply programme in Bangladesh and sibilities of the respondents under Ihe above law Mohiuddin Farooque vs Bangladesh 55 DLR 613 and provides technical resource supports and the Assis,tant-cum- Typist of the same Department the and Rnles and their inaction. Dircctio!'.s'from the authority concerned granted him full pension and Vineet Narain vs Union of India Al R ] 998 SC 889 ref. programmes of UNICEF are implemented through gratuity benefits covering the period of his services Court would provide a necessary cata:yst to t the respondent No.4 under the respondent No.1; due Dr Kamal Hossain. Senior Advocate. instructed by on work-charged basis but in case of the petitioner a ensuring due compliance of such bodies with their to the ala1l11raised, arsenic test in this region at first different view was taken and his pension and statutory obligations and policy commitments. Zahirlll Islam. AJvocate-on-Rec()rd~F()r the Appellant. began in West Bengal by UNICEF and subsequently gratuity, etc. for the period of his service on work arsenic testing also began in Chapainawabgonj Ex-porte-The Respondents. charged basis was denied most arbitrarily and ]n these circumstances and given the extreme gravity where DPHE found tubewells contaminated with without any lawful basis. Accordingly, Adminis- of the situation and the serious effect of continuing arsenic much above the standard level shown in the trative Appellate Tribunal held that the petitioner arsenic contamination through drinking ground water on guideline of World Health Organisation, i.e. WHO, was entitled to get pension, and gratuity benefits public health, this Court directs the respondents to fulfil Judgment the respondent No.7; in the year 1996 Dhaka covering the period of 9 years and 9 months on their legal obligations to provide safe water to millions of Community Hospital, for the first time, detected a Md 11Ifazzul Islam J : This appeal, by leave, is work-charged basis. patient with symptoms of arsenic poisoning and the persons across Bangladesh, in particular to stop human directed against the judgment dated 3-8-I999 Chairman of the said hospital, though took up the 7. It appears that the Administrative Appellate consumption of arsenic contaminated water, by adopting passed by'the High Court Division in Writ Petition matter, did not receive any response fpom Tribunal considered a number of government circu- the following measures. (22,23 & 29) No.2879 of 1999 rejecting the writ petition respondent Nos. 4 and 5; the respondent Nos.l, 2 lars issued by the Ministry of Establishment and the summarily. and also Dr Deepak Bahcherya, the respondent No. office orders issued by the PWD in this connection Constitution of Bangladesh, 1972 2. The appellant filed the above writ petition 6, who is the Chief, WES section of UNICEF, in and arrived at the decision. There is no cogent Al'tides 15, 18,31 & 32 reason to interfere with the same. in public interest, impugning the continued failure spite of numerous warnings given by experts did not Non-compliance with the statutory duties of by the Government and other public authorities, in take proper steps although the respondent No.1 IS dismissed The leave petition upon the respondents to ensure access to safe and particular the respondent No.1, to comply with their certified a list of 59 districts showing that not less condonation of delay. potable water constitutes a violation of the right legal duties under thc existing laws including the than 60 patients per thana of the above districts are Ed. to life as guaranteed by Articles 31 and 32 of the Environment Conservation Act 1995 and the Envi- affected by arsenic, a deadly carcinogen, which causes cancer; the responde!>t No.6, in a Regional Constitution read together with Articles 15 and ronment Conservation Rules 1997 in taking action, 18 of the Constitution, inter alia, to seal tube-wells contaminated with Conference held at New Delhi in the year 1997, also arsenic and to test water quality and to ensure that recognised that arsenic is a disaster in Bangladesh; *Civil AppealNo.118of 1999. the contents of arsenic in the ground water did not the respondent Nos. 4 and 5 though published guide- (Fromthejudgmentandorderdated3.8-1999passed exceed a particular quantity as noted in the lines for installing neW tubewells in Bangladesh but by the High Court Division in Writ Petition No.2879 of Environmen{ Conservation RuJcs 1997. new tubewells are still being tllstalle~ in various . 1999). AD 23

"'~.,T_- 178 RABIA BHUIYAN, MP vs LGRD (Md Tafazzullslam J) 59 DLR (AD) (2007) 59 DLR (AD) (2007) RABiA BHUIYAN,MPvs LGRD(MdTafazzullslamJ} 179

places without following the above guide-lines in with arsenic contents the respondents are under STAGE includes (i) white intermittent dots within should be utilised, including the mass media and the spite of full awareness of the severity of arsenic legal duty to completely seal up the contaminated the black area (leukonelanosis or rain drop syn- communication facilities of government/non- contaminated water; respondents Nos.! and 4 have tubewells to save the lives of millions and such drome), (ii) noaular growth on the palms and soles governmental organisations and specific posters, failed to provide alternative water resource and. inaction on the part of the respondents is violative of (hyperkeratosis) and (iii) swelling of the feet and leaflets and other communication materials should further, the installation of new tubewells are fundamental right guaranteed under the Constitution legs (non-pittiQg odema) and also liver and kidney be developed for this purpose. continuing without tests and the people are still and the High Court Division also fell in error in not disorders; the FINAL STAGE includes gangrene of ! 8. From the contents of National Policy of drinking arsenic contaminated water causing health appreciating that the claim of the appeIJant is based the distal organs or the parts of the body, cancer of hazards; the respondents and the concerned donor Arsenic Mitigation 2004 and Implementation plan on Articles 15(a), 18(1), 31 and 32 of the the skin, lungs and urinary bladder and kidney and for Arsenic Mitigation, Annexure-A of the addi- agencies though found extensive incidence of Constitution in breach of which the respondents are liver failure, the major sufferers. in Bangladesh are tional paper book, it appears that the Government of arsenic in the ground water, nevertheless failed to aIJowing the members of the public to continue to within 16 to 40 years of age; most patients are Bangladesh recognising the enormity of the arsenic take necessary steps to prevent human consumption drink water contaminated with arsenic contents. identified while they are at clinical stage 1 or IJ and crisis, established the BangJadesb Arsenic Mitiga- of such ground water and consequently millions of that children of 5-6 year~ are found to be affected by 6. We have heard the learned Counsels and tion Water and Sanitation Project supported by individuals across the country are being conti- arsenicosis and experts noted that arsenicosis at also perused the records. funds of over $32.4 million which is still ongoing nuously exposed to arsenic poisoning through least in the early stages, i.e. melanosis, can be and subsequently. consumption of such poisoned water and accord- 7. The contents of varions papers annexed reversed through drinking safe water at least to stop ingly, arsenic contaminated tubewclls be sealed and with the writ petition show that over the past three deterioration of the symptoms, if not ensure 9. The National Arsenic Mitigation Policy emergency provisions of alternative sources of safe decades, campaigns and technical support by inter- complete recovery. From the papers annexed it also 2004, amongst others, provides as follows: drinking water should be made. national agencies to the Government of Bangiadesh appears that in the year 1993, public concern I. Preamble in the water and sanitation sector resulted in a shift 4. The High Court Division though recog- regarding the problem of arsenic in the ground , nised that there is a horrible picture of arsenic conta- trom surface water to ground water consumption water was first raised with reports of arsenic conta- 1.1 In Bangladesh surface water is mination but nevertheless, rejectcd the writ petition across the country with tubewells being installed mination in the ground water in parts of Bangladesh abundantly available during the monsoon but it in limine holding that the petitioner had failed to across the country in order to provide access to while a test was conducted by DPHE in Chapai- is scarce during the dry season: Ninety-seven show that there was any 'law or rule to allow for ground water, for example, from 1972-1997, nawabganj District and by the year 1997, a regional conference was held in New Delhi to consider the percent of the population relies. on ground sealing' and further noting, that the government is UNICEF, supported Government of Bangbdesh in water for drinking purpose. Ground water used very much aware of this arsenic hazard in the the instaIJation of approximately one million public effect of arsenic in the ground water and the said conference noted that arsenic in drinking water is a for drinking in many areas if Bangladesh has country and they are taking steps in the matter. tubewells. The demand for drinking ground water expanded as a result of the concerted efforts of major public health hazard and should be dealt with been reported to have contamination by arsenic 5. Leave was granted on the submissions that development agencies and Government of Bangla- as an emergency situation and recommended that above the Bangladesh National Standard of 50 the High Court Division fell in error in not appre- desh to avoid surface water sources in a campaign to immediate relief measures be provided through the parts per billion (ppb). The percentage of contaminated tubewells in villages varies from ciating the required involvement of respondent reduce diseasescaused by, drinking contaminated supply of safe drinking water to aIJ those affected Nos.5 and 6, as has been enunciated in paragraph 2 surface water. However, no tests were carried out and/or are at risk because of current exposure and more that ninety percent to less than five of the writ petition details and the inaction of the for arsenic contamination of the ground water and the said conference further noted immediate relief percent. Geographically, the tubewells in the delta and the flood plains regions, which respondents is leading to cancer and death due to consequent]y, the people in Bangladesh, though measures that could be taken with priority provision drinking of arsenic contaminated water by members concerned about the quantity of water available, of safe drinking water, in particular for "affected comprise 72% of the land area, are more or less of the public and that the High Court Division fell in were not concerned about its quality because it was people" that is, those showing clinical manifes- affected by arsenic contamination. error in finding that the appellants could not show taken as granted that ground water per se was safe tations and also for "people at risk" that is, those 3.0 Policy Statements. any law or Rule under which respondents could be and accordingly, they continued and still continue to drinking arsenic contaminated drinking water bnt Access to safe water for drinking and prohibited from sinking tubewells without testing drink such water with its serious impacts on pnblic not necessarily showing symptoms of arsenic poi- cooking shall be ensured through implemen- ic contents; the High Court Division 'fell in health. The papers as annexed show that the effect soning; it was also recommended that intensive tation of alternative water supply options in all 'or in not considering that in terms of section 4 of on health of arsenicosis is very severe and it awareness-raising activities should be undertaken arsenic affected areas. the Environment Conservation Act, 1995 and the involves three stages leading at the most serious immediately with regard to the negative health ,...... Rules framed thereunder the respondents could be stage to cancer, the PRIMARY STAGE includes" (i) effects of drinking arsenic contaminated water in 5.1 Public awareness prohibited from sinking tubewells without testing blacking of some parts of the body or whole body order to introduce preventive measures in cooper- arsenic contents; in view of the admitted fact that i.e. melanosis and (ii) thickening and roughness of ation with local bodies, NGOs and others and all 5.1.1. Raising awareness regarding the tubewells are already identified as contaminated the palms and soles (keratosis); the SECONDARY avenues for increasing the awareness in this matter impact of ingestion of arsenic contaminated water; 181 180 RABIA BIIUIYAN, MPvs LGRD(MdTafazzullsla1l1J! 59 DLR (AD) (2007) 59 DLR (AD) (2007) RABIA BHlJlYAN,MP vs LGRD (MdTqf=lIslam.J)

There is a growing concern 5.1.2 Raising awareness about alternative dered and comprehensive approach to the of Bangladesh and UN Agencies titled "Proportion arsenic' tree safe water sources and mitigation supply of safe water to the people in the longer of population with sustainable access to an regarding the availability of ground water. options; tern1. improved water source", over the last few years Currently ground water is used widely for thousands oftL\bewelis have been found to be conta- irrigation, leading to a lowering of the water 5. 1.3 Raising awareness regarding reme- 6.2 Ground Water Act , minated with raturally occulTing arsenic at higher table. A prop~r ground water strategy will be dial measures against arsenic poisoning; and Ground water is a national resource and a 1 contents than WHO-recommended levels and if necessary to safeguard the resource. 5.1.4 Raising awareness that arsenicosis is suitable Ground Water Act should be enacted to I quality is taken into account, access to safe water not contagious and that social exclusions is not control all activities regarding ground water, 14. It also appears that duties were imposed 1 drops to only 72% in rural areas. In spite of the fact justified. exploration, cxtraction and management. i that this is good coverage by developing country under existing laws on public authorities to take 5.2. Alternative Arsenic Safe Water Supply }, standards, it implies that 30 million people remain steps to scal arscnic'contaminated tubewells and t6 5.2.1 Follow the Bangladesh Standards for 11. From the contents of the draft of the without access to safe water. providc for safc waler supply. The local government drinking water as defined in 'Environmental "Proposed Arsenic Testing Guideline for new tube- bodies namely, Paurashavas anB Union Parishads, 12. Further from the contents of Annexure-D have specific legal obligations to provide clean Conservation Act 1995 and Rules 1997, wells in Bangladesh" published by DPHE and Schedule-3' . UNICEF on 29-3-1998, which forms part of of the additional paper book it will appear that as water supplies to the community. Under The Paura- Annexure-G to the writ petition and starts from page noted by a commentator, these figures ai11ply demon- shava Ordinance 1977, all Paurashavas are respon- 5.2.2 Give preference to surface water over 148 of the paper book of this appeal, at page 153 strate that the race against time has gone badly and sible t()r providing safe water and promoting public ground water as source for water supply; under the heading "Allocation of New tubeweJls" it the "arsenic mitigation project" has been hobbled by health (sections 70, 73 and 74); the control, 5.2.4 Ensure on an emergency basis, safe will appear that thanas in which J-40% of tubewclls unforeseen problems resulting in death of poor regulation and inspection of private sources of water source of drinking water at a reasonable were affected, could be considered as moderate risk Bangladeshis from unsafe water and with many supply (section 74(3)(c)) and taking measures to distance; while thanas with more than 40% affected wells thousands of wells not yet even tested for arsenic. prevent the use of such water for drinking if it is unlit for consumption. 5.2.5 Assess the needs for water supply should be considered high risk areas. The National 13. It also appears that the Government has intervention based on the status of contami- Arsenic Mitigation Policy itself noted that tubewells also undertaken programme of the Millennium nation at vilJage level. had been affected in 72% of the land area and that in 15. Under the Local Government (Union Development Goals, MDG, with support trom inter- Parishad) Ordinance 1983, all Union Parishads are some villages, upto 9% of tubewells were conta- national partners setting up a target for Bangladesh 10. The Implementation Plan for Arsenic required; to carry out functions for the provision and minatcd. From the contents of the "Assignment which is to have, by 2015, major proportion of Mitigation 2004, amongst others, provides as maintenance of well, water pumps, tanks, ponds and follows :- Report" prepared in December 1996 by Prof. .1M people without sustainable access to safe drinking other works for the supply of water (First Schedule Dave, short-tern1 consultant of WHO, which forms water and basic sanitation. The report, reviewing 3.3.] Emergency response. Part I item (16); to adopt measures for preventing part of Annexure-B to the writ petition and may be implementation of the MDGs by Bangladesh, the contamination of the source of water supply for The government shall focus on ensuring at seen at page 71 of the paper book of this appeal, it further notes the following as a specific challenge, least one safe source of drinking water within a drinking (First Schedule Part 1, item (17) to prohibit appears that all districts adjoining the West Bengal highlighting the importance of ensuring use ofwater the use of water ofwe11s, ponds and other sources of reasonable distance on an cmergency basis. border, except for a few in the northern arca are traIn different on-arsenic contaminated sources and This shall be termed as "Emergency Water water-supply suspected to be dangerous to public affected and Panchagarh; Nawabganj; Rajshahi; the importance of developing a proper ground water Supply Programme in Severely Arsenic health item (18) and to take any other measures Kushtia; Meherpur; Chuadanga; Satkhira; Narayan- strategy. AfIected Areas". In Upazilas, where screening ganj; Faridpur; Pabna and Bagerhat Districts were likely to promote the welfare, health, safety of the Challenge I: Ensuring 100 percent cover- has already been completed, the emergency found to have a serious problem due to high arsenic inhabitants of the union or visitors (item 38); to age of safe water water supply programme should be com- concentration in drinking water of up to 1.75 mgll authorise a complaint regarding the commission of To be able to ensure nearly 100 percent menced without any further delay. In other and population of about 23 million is at risk due to the offence of using water for drinking from any areas this programme should start immediately the consumption of arsenic contaminated water. In coverage by 2015, at least 25 million people source which is suspected to be dangerous to public must gain access to arsenic-free, safe water '"'" "" ""a,fter the screening is com~plete. For the the year 1998 it was estimated by WHO that some health, and the use whereof has been prohibited over the next 10 years. This is a considerable . emergency response improved dug well, pond 23 million individuals in Bangladesh were at risk of under this Ordinance (Section 69, read with Third challenge since at present there is no effective sand filters will be tried first and deep tubewelJs arsenicosis but as it appears from the papers Schedule item (7). solution for communities which are highly following the protocols shall be adopted as the a)1nexed in the writ petition, by 2004, that is in a affected by arsenic communities and The responsibilities of the Government for the last option. The emergency response shall be further six years, the above figure had jumped to 30 individuals wi11have to learn to use water from supply of clean and safe 'Yater to communities are completed in one year. The emergency million persons at risk. As is evident from different sources for different purposes, if their clearly set out in a number of laws including the response will take pressure off all stockholders Mi11enniUl1'! Development Goals Progrcss Report water demands are to be met at viable cost. Environmental Conservation Act 1995 and the and time will be available to develop a consi- 2005 prepared in collaboration by the Government 132 RABIA BHUIYAN,MP vs LGRD (MdTafCczlllIslamJ) 59 DLR (AD) (2007) 59 DLR (AD) (2007) RABIA BHUIYAN,MPvs LGRD(MdTafazzlllIslamJ} 183

Environment Conservation Rules] 997 which of 0.05 mg per litre (Third Schedule item 19. The Committee has further noted in para- cally appropriate and of good quality. This provide, inter alia: (kha) Environment Conservation Rules). graph 12 that the right to health contains a number requires, inter alia, safe and potable water and the Department of Environment is to take of inter-related dlements which relate to availability, adequate sanitation. 16. Further legislation has already been framed measures and to give necessary directions accessibility, acceptability, quality which are as but not brought into force in the fonn of the Ground follows: 20. The Committee has [mther discussed that to any person to conduct drinking water Water Management Ordinance 1985 (Ordinance the legal obligations on States (under para 33) to quality surveillance programmes and General Comment No. 14 No.27 of 1985) The preamble to this Ordinance I respect, protect, fulfil their duties to secure rights submit report and advise or, in appropriate ! Para 12. The right to health in all its forms states that it has been enacted for the purpose of and that these include administrative, judicial and cases, direct, every person to follow the and at all levels contains the following inter- managing the ground water resources for agri- other promotional measures for realisation of rights. standard of drinking water (Section cultural production and for matters connected related and essential Cleme"nts .the precise The committee further discusses at para 36 the im- 4(2)(h), Act) application or" which will depend on the therewith. The Ordinance provides for licensing of parlance of securing the right in 11ational, political for such a direction to provide for the tubewells subject to prior inquiries regarding the conditions prevailing in a particular State party: and legal systems and with respect to the obligation closure, prohibition or regulation of 'any aquifer condition of the soil where the tubewell is to (a) Availability: Functioning public health to fulfil notes that States are required to ensure process' , subject to certain proce- be installed, the suitability of the site for installation and healthcare facilities, goods and services as equal access for all to the underlying determinants dures, provided that the DG may, in cases of the tubewell and on satisfaction that the instal- I well as programmes have to be available in suf- of health such as nutritiously safe foods and potable of urgency, instantly give necessary lation will not have any adverse effect on the sur- . ficient quantity within the State party. The drinking water, basic sanitation and adequate direction, if it appears that public life is rounding area (section 5(5)(a). Further, National precise nature of the facilities, goods and ser- housing and living conditions. about to be disrupted due to environmental Arsenic Policy refers to the importance of vices will vary depending on numerous factors I 21. The Committee then goes on to specify the pollution (Section 4(3)Act); establishing a regulatory framework for ground including the State party's developmental level. ~ core obligations on the state imposed by the coven- for receiving infornJation on application by water management. They will include however, the underlying ant and notes that these include at para 43(c) To persons affected from the pollution or detenninants of health such as safe and potable 17. It also appears that under the International ensure access to basic shelter, housing and sani- degradation of the environment for drinking water. Covenant on Economic, Social and Cultural Rights tation and an adequate supply of safe and potable remedying the damage and adopting any (b) Accessibility: Health facilities goods 1966 (the Covenant), which was ratified by Govern- water. measures including holding public and services (6) have to be accessible to every- ment of Bangladesh in the year 1998, includes hearings for setting an application under one without discrimination within the jurisdic- 22. II' thus appears that the High Court Divi- obligation to protect the right to health which this section (section 8 Act); tion of the State party. Accessibility has four sion fell in error in rejecting the writ petition sum- includes to ensure access to safe and potabJe water. for seizing any equipment if he had reason overlapping dimensions: marily without at all considering the respon- to believe that it may furnish evidence of 18. In elaborating the meaning of the right to Non-discrimination: Health facilities sibilities of the respondents under the. above law and Rules and their inaction. the commission of an offence under the Act health as guaranteed in Article 12 of the Covenant, goods and services must be accessible to all, (section 10); the UN Committee on Economic, Social and especially the most vulnerable or marginalised 23. Given that the existing legal and policy Cultural Rights has specifically interpreted the right for the formulation and declaration of envi- sections of the population in law and in fact, ftamework imposes legal duties on various public to health as including the right to access to safe and ronmental guidelines by notification in the without discrimination on any of the prohibited authorities and on local government bodies to take potable water and in its General Comment No. 14 on Official Gazette for the control and grounds (7) measures to provide safe water to individuals and Right to Health (2000) at para II it has been mitigation of environmental pollution Physical accessibility: Accessibility also also establishes a framework for implenrentation of provided as follows: (section 13, Act); implies that medical services and underlying a programme to provide safe arsenic free water. establishing a minimum standard for General Comment No. 14 para II detenninants of health such as sate and potable Directions from the Court would provide a neces- quality of water for consumption which Para I I The Committee interprets the right water and adequate sanitation facilities are within sary catalyst to ensuring due compliance of such provides for a maximum content of arsenic to health as defined in article] 2.1 as an safe physical reach including in rural areas. bodies with their statutory obligations and policy commitments and such direction would include. of 0.05 mg per litre (Third Schedule, item inclusive right extending not only to timely and Economic accessibility (affordability) appropriate health care but a]so to the under- (kha). Environment Conservation Rules) of Equity demands that poorer households should to ensure compliance with the statutory lying detenninants of health, such as access to Add!. paper book of C.A. 118 of 1999. not be disproportionately burdened with health duties as enumerated above safe and potable water and adequate sanitation, expenses as compared to richer households for establishing a minimum standard for to raise public awareness through an adequate supply of safe food, nutrition and (d) Quality: health facilities goods and dissemination through the national media, quality of water fJ)r consumption which housing, health, occupational and environ- services must also be scientifically and medi- provides for a maximum content of arsenic mental conditions. in partic~lar BTV and Bangladesh Radio, 11'14 RAnIA BHUIYAN,MPvs LGRD(MdTa/cczuIIslamJ) 59 DLR (AD) (201J71 59 DLR (AD) (2007) WASA vs MD ALl 185 of the dangers of drinking arsenic Narain vs Union of India AIR 199X SC 889 at para- (a) taking necessary and .effeetive steps to contaminated water and graph 9 it has been held that the continuing inertia APPELLATE DIVISION impJem;;nt the National Arsenic Mitigation of the agencies to even commence a proper inves- , (Civil) to provide a six monthly report to this Policy 2.004 and the National Action Plan tigation could not be tolerated any longer. In view of Md RlIhlll Al11in J Hon'ble Court on the status of for Arse;lie Mitigation; Managing Director, WASA... the persistence of that situation it became necessary t implementation of the policy and plan. MM Ruhul Amin J '. """ " '"" " " """Ap pellaI lt as the proceedings progressed to make some orders (b) complying with the relevant provisions of Md Tafazzlil Islam J vs which would activate the cm and the other 24. It also appears that non-compliance with i the Paurashava Ordinance 1977 and the Judgment Md Ali and others"""""" the statutory duties of the respondents to ensure agencies to at least commence a fruitful investiga- Local Govemment (Union Parishad) Ordi- July 11th, 2005 I """ " ". " "...Respondents. access to safe and potable water constitutes a viola- . tion. Merely issuance of a mandamus directing the nance !983 and other lawswith respect to tion of the right to life as guaranteed by Articles 31 agencies to perform their tasks would be fLltile and providing safe water supply; Constitution of Bangladesh, J972 Articles 31 and 35 and 32 of the Constitution read together with therefore, it was decided to issue dIrectIOns from (c) complying with the Environment Conser- , Articles 15 and 18 of the Constitution. time to time amI keep tbe matter pending requiring The question ofmalafide,'being a question of the agencies to report the progress of investigation vation Act. ] 995 and the Environment 25" As it appears in the case of Virendar Gaur Conservation Rules 1997 ; fact, has to be alleged specilically. As it appears so that monitoring by the Court could ensure con- \'S State of Haryana (1995)2 SCC 577 at paragraph the respondent nJe/'ely stated,that he has come to tinuance of the investigation. It was thereforc, 7 it has been held that Article 21 protects right to IiIe (d) framing rules for ground water management learn that some interested quarte'"s in o,'der to decided to direct the cm and other agencies to as a fundamental right, enjoyment of life and its in accordance with the National Policy for frnstrate the work and the contract at the allainment including thcir right to life with human complete the investigation expeditiously keeping Arsenic Mitigation 2004 ; the Court infonned hom tin~e to time of the pro- instance of some corrupt puty with malafide dignity encompasses within its ambit tbe protection (e) raising mass awareness of the dangers of intention and without any committee evalnation and preservation of environment, ecological balance gress of the investigation so that the C:1urtretaincd ,eisin (If tbe mallcr till the investigation was drinking water from arsenic contaminated or recommendation and without any reasonable frc'e from pollution of air and water, sanitation tubewells and of alternative sources of safe without which life cannot be enjoyed. Any contra completed and the charge sheets were filed in the cause or ground arbitrarily withdrawn the letter drinking water, inter alia, by disseminating acts or actions would cause environmental pollu- competent courl fc)r being dealt with thereafter in of intent which is interference with respondent's accordance with law. such information through the national tion, Environmental, ecological, air, water, pollution freedom of trade or business and the said letter media, including BTV and Bangladesh erc. should be regarded as amounting to violation of 27. Further, in tbe case of AIC 1viehta 1'0'Unioll Radio; disclosing no reason is mala fide, arbitrary and Aliicle 21. Therefore, hygienic environment is an of! IIdia 1999 (6) SCC 12 para 2.4 the Supreme against the principle of fairplay. "" ,,(34) integral facet ofright to hcalthy lite and it would be (f) expediting the testing of tubewells across Court of India required submission of regular the country for arsenic; Article] 02 impossible to live with human dignity without a reports by a Committee established to inquire into humane and healthy environmental prokction. incidence of vehicular pollution and compliance (g) undertaking a phase-by-phase programme As it appears in the instant case even if for Therefore, it has now become a matter of grave with court directions in this regard. for sealing tubewells identified as being argument's sake it is conceded that there was a concern for human existence. Promotll1g environ- arsenic contaminated and for continuing to contract and more so, the same was not merely to ment protection implies maintenance of the environ- 28. Moreover in the case of Dr Mohiuddin screen tubewells ; supply the generators bnt also for installation ment as.'a'whole comprising the man-made and the Farooqlle vs Bangladesh 55 VIR 613 at paragraph natural environmcnt. Therefore, there is a constitu- 15 tbe High Court Division had issued a direction (h) ensuring that no further damage to human andmainfenance of the generators even then, the tional imperative of the State Government and the requiring six monthly reports to be filed before the health is caused througb the use of arsenic contract being not entered into by the appellant contaminated tubewells ; and municipalities not only to ensure and safeguard Court regarding compliance with its directions with the respondent in ter"ms of any statutory concernmg prevention of vehicular pollution. provision or in exercise of statutory powe," of the proper environment but also an imperative duty to (i) providing a yearly report to this Court take ad' uate measures to promote, protect and appellant but the contt"act being an o"dinary 29. Accordingly, in these circumstances and regarding steps taken to implement the impro "- oth tbe man-made and tbe natural comme,-cial contract it comes to that the relief given the extreme gravity of the situatipn and the Arsenic Policy 2004 and lhe Pian. ~ environ ~nt. granted by the High Court Division in the writ serious effect of continuing arsenic contamination Accordingly, the appeal is allowed within petition is not legally available to the respondent 26. Regarding such directions Ii'om the Court through drinking ground water on public healtb, 11m directions as set out above. There is no order as to in the nature of continuing mandamus to provide a Court directs the respondents to fulfil their I"Ii;!! .costs. in respect of the contract allegedly entered into between the appellant and the "espondent. (47) necessary means for providing the public with infor- obligations to provide safe water to millions of p~1 Ed. mation regarding the nature of implementation of sons across Bangladesb, in particular to stop hLlII1ll11 .Civil Appeal No. 57 of2000. the policy and plan as sought by the appellam consumption of arsenic contaminated water, 11, (From the judgment and older dated May 11 and 12 during hearing, as it appears in the case of Vineel adopting the following measures - of 1999 passed by the High Court Divisionin Writ Petition No. 2621 of 1998).