Case Study 1:
Compliance of Environmental Laws are needed during Construction Projects

The case of the BGMEA Vs. Bangladesh & ors [9 SCOB [2017] AD 70] serves as an illustration of how neglecting Environmental Laws during the construction of a building or project (legal obligations) can lead to severe consequences, even the demolition of constructed structures.  To protect natural resources, construction activities must comply with both construction regulations and environmental laws.  

Importance of the BGMA case from an Environmental and Construction Law Perspective in Bangladesh:

The Joladhar Ain 2000 (Act XXXVI of 2000) mainly protects natural waterbodies and prohibits any change in their nature, character, or use. Section 5 of the Act bars construction or alteration, and Section 8 describes penalties for violations. In the BGMEA case, the 15-storied BGMEA commercial complex was constructed directly on Begunbari Khal and Hatirjheel Lake, both recognized as natural water bodies, as documented in government records and the Dhaka Metropolitan Development Plan. The construction altered the waterbodies without lawful authority, the High Court Division ordered demolition upon a Suo Moto, and clarified that BGMEA could claim no compensation. Under the Environment Conservation Act 1995, an Environmental Clearance Certificate (ECC) from the Department of Environment must be obtained before initiating construction, for multi-storied commercial building projects fall under ‘Orange Kha’ class, which requires both a site clearance certificate and an ECC. BGMEA received only the site clearance certificate. As they do not have both certificates, it exposes project developers, contractors, and other consultants to fines. This case did not allow any compensation other than the buying price of the flats, stating that they are entitled to know about the illegal project and hold them responsible for it. The responsibility is shared among the contractors, subcontractors, and suppliers.

The case also emphasized the importance of having the title of the construction land while obtaining permission from RAJUK. Building Construction Act, 1952, and RAJUK rules 1996 require ownership documents to get approval, but BGMA failed to do so. Even if they got approval on condition, they constructed without fulfilling the given conditions.  The transfer of the property from EPB to BGMEA itself was illegal, as the contract to give the property to BGMEA was executed without EPA having ownership of the property. So, BGMEA had no valid point for the construction to make it a legal one. In fact, their intention was to make a business out of it; there was no economic benefit.

Upon filing leave to appeal by the BGMEA in the appellate division, The Supreme Court of Bangladesh in BGMEA vs. Bangladesh & Ors (2017) did not grant the leave to appeal and uphold the high court decision to demolish the building, give the buyers their money as it violated Jaladhar Ain 2000, Environment Conservation Act 1995 and the Building Construction Act 1952. The court even said not to provide any compensation, calling it an illegal construction. Additionally, the Honourable court referred to Metro Makers & Developers Ltd vs. BELA (65 DLR(AD)181), where construction on low-lying areas was found to violate environmental law and was subsequently declared illegal.

The Hon’ble Court decided that,

‘In such view of the matter the transfer/allotment of the water body by EPB to BGMEA and consequently the change of the nature and character of the said water body (“Joladhar”) by BGMEA is completely violative of the said two laws and as such the violators are liable to be punished with imprisonment and fine and such illegal construction is liable to be demolished for which BGMEA or any other person is not liable to get any compensation.’

The BGMEA case is a precedent and caution for developers, contractors, and policymakers to comply with environmental and construction laws in Bangladesh. When a project or construction wants to run, legal compliance with environmental and construction laws is not optional in Bangladesh. Unauthorized land transfer, non-compliance with ECC requirements, failure to obtain RAJUK approval, and failure to follow environmental regulations can lead to demolition.  Hence, the courts in Bangladesh are strict in upholding these protections to balance the environment and construction.