The Appellate Division of the Supreme Court has ruled that the High Court Division cannot assume the power and jurisdiction of a particular authority conferred by a specific law or statute in exercising power under Article 102 of the Constitution.
A three-member bench of the Appellate Division headed by Chief Justice Hasan Foez Siddique passed the ruling in a verdict delivered after hearing a leave to appeal petition filed by the Ministry of Land against a High Court order.
In the full text of the verdict the apex court also observed that the High Court in exercising power under Article 102 of the Constitution cannot declare a particular area as ‘Balumahal’. It said the Deputy Commissioner of the concerned district has been empowered to declare a certain area as ‘Balumahal’ subject to fulfilment of certain conditions with the approval of the concerned Divisional Commissioner.
However, the High Court Division without taking consideration of the provision of ‘the Balumahal and Mati Babosthapona Ain, 2010’ straight way treated the Dubochars of Meghna River bed under different mouzas in question as ‘Balumahal’ and directed government officials to allow the writ petitioner, Md Selim Khan, to extract sand from the said mouzas, also read the full verdict published recently in the SC website.
The court said, from the provision of law, it is clear that a ‘Balumahal’ shall be leased out through open tender, and after acceptance of lease proposal, concerned Deputy Commissioner would execute lease agreement in a specific manner and procedure and after receiving the lease money the possession of leased ‘Balumahal’ will be handed over to the lessor.
But the High Court Division making the Ain, 2010 nugatory most illegally and arbitrarily leased out the mouzas in question to the writ petitioner for extracting sand. The High Court Division, in fact, had played the role of the lessor, which it cannot do.
According to the verdict, Md Selim Khan, Chairman of Lokkhipur Model Union Parishad under Chandpur Sadar Upazilla, filed a writ petition in 2015 seeking directions for sand extraction after conducting a hydrographic survey in Meghna river at his own cost in 21 mouzas of Chandpur and Himchar upazials. The writ was filed mentioning activating a route for water transport.
The High Court issued a rule on July 9 of the same year on the primary hearing of the writ petition. Later, on April 5 in 2018, the High Court disposed of the rule delivering a verdict saying that there is sufficient sand and soil in the river of those mouzas and there is no bar to extract sand from there.
Feeling aggrieved by and dissatisfied with the said judgment the Ministry of Land represented by its Senior Secretary filed this leave petition.
After hearing the leave petition the apex court set aside the High Court Division order and directed the Deputy Commissioner of Chandpur to take necessary steps to realize the royalty for the alleged extraction of sand from Md Selim Khan, from the date of the judgment of the High Court Division till the date of order of stay (April 4, 2022) passed by this Division.
The apex court found the conduct of the concerned law officers highly suspicious and expressed dissatisfaction with the conduct of the concerned government officials of the Chandpur district administration who slept over the matter.
