Sugathapala Mendis and Others V Ms.

Chandrika Bandaranaike Kumaratunge and

Others. S.C. F.R No. 352/2007 (Waters Edge case)
Sugathapala Mendis and Others V Ms. Chandrika Bandaranaike Kumaratunge and
Others. S.C. F.R No. 352/2007 (Waters Edge case)

In this case the etitioners filed a case on the basis that their right to equal protection of the law
under Article 12(1) has been violated. They stated that their lands were acquired under the Land
Acquisition Act for interest of the ladies and children of Colombo and necessary resources on the
basis that they were required for public purpose for constructing the arliamentary
dministrative complex and for providing water retention as a low lying area and paid a sum of
Rs. 312/= per acre as compensation. Though the lands were acquired on an urgent basis and
vested in the UDA, nothing was done for about 9 years.

Later they were sold to a private entrepreneur to serve as an exclusive and private golf resort in
Sri Lanka.

The Petitioner stated that the court is the bastion of the people in whom sovereignty is reposed
and that they are affected by the patent abuse of executive or administrative power.

Later Cabinet gave approval to release the land to the Asia Pacific Golf Co. on concessionary
terms and several lands acquired were given to the Respondents either of free of charge or for a
nominal sum for 99 years. Later the Respondents were permitted to sell some of the said lands as
restrictions on the sale were removed.

Certain other lands were acquired to develop a playground at Battaramulla in Kaduwela

Pradeshiya Sabha area. The land was filled by expenditure of public funds by the P.S. Some of
these lands were also given to the Asia Pacific Co. with the approval of authorities. (Pg 9 and 10
of Judgement) The Co. was permitted to build 100 luxury holiday villa on freehold basis.

As a result valuable land inclusive of marshy land was arbitrarily alienated in violation of the
provisions of the Constitution.

Wetlands rely on an established water drainage pattern. Any population nearby with its paved
streets, gardens storm water etc., inevitably alters water drainage patterns and affects the wetland.
Wetlands provide a haven for a vast number of living creatures, which rely on them for food,
shelter and as a breeding place.

Environmental issues were not duly focused when the EIA was prepared.

• The land which was acquired for public purpose was alienated to private persons
arbitrarily in violation of the provisions of the constitution.
Related Areas:

1. Public Interest Litigations

2. Public Trust Doctrine.

3. Sustainable Development.

H.Senarath and Others V Chandrika Bandaranaike Kumaranatunga and Others S.C.(FR)

503/2005

The Rtitioners stated that they were filing this case on their own interest as well as in the public
interest and alleged that their FR under Art. 12 (1) has been violated. The alleged infringement
relates to the unlawful, unreasonable, arbitrary and mala fide executive action by the 1st Resp.
former President Chandrika Bandaranaike and the members of the Cabinet in securing the
following:-

1. A free grant of a land vested in the UDA in extent 1 ½ acres close to the Parliament
which had been fully developed at a cost of Rs. 800million

2. Premises at 27 Independence Avenue Colombo 7

3. Staff, other facilities, vehicles far exceeding the entitlement given under Presidents’
Entitlement Act No. 4 of 1986.

The Petitioners stated that the 1st Resp. and the Cabinet of Ministers of which she was the Head,
being the custodian of executive power should exercise that power in trust for the people.
Reference was made to the In re Nineteenth Amendment to the Constitution 2000 (3) S.L.R. 85)
which stated that the respective organs of government are reposed power as custodian for the
time being exercised for the people. Art. 3 and 4 were discussed and the court stated as follows:
Therefore executive power should not be identified with the President and personalized and
should be identified at all as the power of the people. The 1st Resp. and the Cabinet of Ministers
were the custodian of public property and public funds. The property and funds will have to be
dealt with according to law for the benefit of the people. “But who is to guard the guards
themselves”

The Supreme Court of Sri Lanka has taken a leading role in the protection of environment by

a) Entertaining public interest litigation;

b) Taking liberalized approaches in granting relief;

c) Influencing the policy makers for the purpose of preventing pollution.

Related Areas:

1. Public Interest Litigations

2. Public Trust Doctrine.

3. Precautionary Principle.

4. Intergenerational Equity.

M.C. Mehta Vs. Union of India (Shriram as leak case) 1987SC 1086, 1090

The original petition sought the closure of Shriram’s hazardous industrial plant and its relocation
away from Delhi’s populated localities.

While the petition was pending, petroleum gas escaped from the sulphuric acid plant causing
widespread panic in the surrounding community and harmed certain persons. They filed an
action for compensation in the original case and closure and relocation in the writ petition. The
court stated that principle of strict liability evolved in England more than a century ago in Ryland
v Fletcher cannot apply in determining the liability of hazardous and inherently dangerous
industries. Supreme Court observed as follows:-

“where an enterprise is engaged in a hazardous and inherently dangerous activity and harm
results to anyone on account of an accident in the operation of such hazardous and inherently
dangerous activity For ex. the escape of toxic gas, the enterprise is strictly and absolutely liable
to compensate to all those who are affected. The court stated that the object of the court in such
cases is to deter the wrongdoer. It said that compensation must be correlated to the magnitude
and capacity of the enterprise as it should have a deterrent effect.

Related Areas:

1. Polluter Pays Principle

2. Public Interest Litigations.

Directive Principles

Seneviratne V U.G.C. (1978) 1 182,

Justice Wanasundera stated that, all relevant provisions of the Constitution must be given effect
when a Constitutional provision is under consideration

Vadivelu Vs. OIC Sithamparapuram Regional Camp Police Post Vavuniya & Others
(2002)S.L.R. 3

Right to Life

Sriyani Silva v. Iddamalgoda OIC Paigala, 2003 (1) S.L.R 14

• The Petitioner complained that her husband was subject to extreme torture that he died
soon after.

• The Supreme Court examined the position of right to life and stated that although the
right to life is not expressly recognized as a fundamental right, that it is impliedly
recognized in some of the provisions of Chapter III of the Constitution.

Lamahewage Lal Fernando Vs. OIC Seeduwa2006 S.L.R 40

Territorial Sovereignty

Trail Smelter Case (USA Vs. Canada- Award in 1938 and 1941)

• Canada was required to take protective measures to reduce pollution caused in its river by
Sulphur dioxide emitted by zinc and lead smelter plants in Canada only 7 miles away
from the Canadian US border.

Corfu Channel Case (UK Vs. Albania 949 ICJ)

• Rendered judgement against Albania stating that it was under obligation to warn the
approaching ships of the imminent dangers to which the minefields exposed them. (Loss
of human life and damage to British naval ships)

Lac Lanoux case (Spain Vs. France) 1957 ICJ.

• Both states were using the waters from the lake. However France diverted its course in
order to generate electricity. Spain claimed that the said act of France would affect the
rights of the Spanish people. The court held that there was no infringement of such rights
as France had taken adequate measures to protect them.

Sustainable Development

Gabcikavo Nagymarous Project Hungary Vs. Slovakia ICJ (4) SAELR 1997

• Both countries utilized the waters of Danube River. Slovakia initiated a power generation
project which intended to divert water from the said river, in agreement with Hungary.
• Due to the dispute which arose between both countries, the matter was taken to ICJ.

• Slovakia alleged that the project would be beneficial to the people as it is a power
generation project.

• However Hungary contended that it will cause ecological damage and be harmful to
fauna and flora

• Justice Weeramantry giving a dissenting judgment analyzing many issues relating to

sustainable development.

• “Development” means, development not merely for the sake of development and the
economic gain it produces, but for its value in increasing the total sum of human
happiness and welfare”

• The protection of environment is also a vital part for many human rights such as right to
health and the right to life.

• Therefore, development can only be prosecuted (use/engage) in harmony with reasonable

demands of environmental protection.

• Natural resources are not individually, but collectively owned, and a principle of their use
is that they should be used for the maximum service of people.

• The purpose of development is the betterment of the condition of the people.

• Justice Weeramantry referred to our ancient irrigational systems in length and stated as
follows :-

“SD is thus not merely a principle of modern international law. It is one of the most
ancient ideas in the human heritage. Fortified by the rich insights that can be gained from
millennia of human experience, it has an important part to play in the service of
international law”

Related Areas:

1. Public interest litigation

2. Inter generational equity

Narmada Bachao Andolan Vs Union of India.

• Narmada river is the 5th largest river in India, and largest west flowing river in India. It
flows through Gujarat Madhya Pradesh and Maharashtra and then it flows into the sea.

• In order to harness the waters of Narmada river for the purpose of water supply, irrigation
and hydro power a project was proposed.

• The project included the construction of major terminal dam at Sardar Sarovar.

• In the process, 245 villages were to be submerged in water and the residents to the
relocated.

• One of the conditions attached to the project was that rehabilitation of the affected
persons should take place simultaneously with the construction of the dam.

• The conflict between development and environment was discussed in this case. The
conflict between the rights of individuals and the greatest need of the society explained.

• In this case greater benefit for the public outweighed individual rights.

• It was stated in this case that if the waters of Narmada river continues to flow into sea
unused,

• Then there appears to be no alternative towards the deprivation (loss) of water to the
human beings of that area.

Related Areas:

1. Public interest litigation

2. Inter generational equity

Bulankulama v. Secretary Ministry of Industrial development and others (2000) 3 S.L.R.

243

In this landmark judgement of Sustainable Development was discussed at length.

In this case the Government intended to enter into a joint venture project with a foreign company
to mine phosphate deposits in Eppawala in the Anuradhapura District.

This is a case where the Government of Sri Lanka was intending (purposing) to enter into an
agreement for exploration and mining of phosphate in the Eppawala area in Anuradhapura, with
a foreign Company which had branch in Sri Lanka (with a low share capital).

The proposed agreement granted sole and exclusive right to the company to :

A. to search and explore for phosphate and other minerals in the Exploration area;

B. to conduct test or pilot operations in any location within the contract area;

C. mine and develop any phosphate deposit including associated minerals found in the
Exploration area under the mining License.

The proposed agreement did not provide for an Environmental Impact Assessment Report, but
provided for only a feasibility study.

• Project proposal and exploration plan were not approved by a project approving agency.

• Strict confidentiality was maintained in the whole process. There was disregard to the
provisions of the National Environmental Act and Mines and Minerals Act.

• By the said agreement the Government was intending to give away, for a nominal (small) sum
of money the phosphate mineral which is non-renewal and valuable, which belongs to the
present and future generations of this country. If the proposed agreement was implemented the
said mineral would have been exhausted within a period of thirty years.

• According to scientific evidence the phosphate reserves on Eppawala amount to 25 metric tons
and the inferred reserve is 35 million metric tons. The phosphate is presently mined at the rate of
40,00 metric tons per year which means that the reserve would last for many years to come.
However under the proposed agreement phosphate would be mined at the rate of 1.2 million
metric tons a year for the first 12 years and thereafter 900,000 per year.

• Thus after 30 years Sri Lanka will not have any phosphate at all The introduction of the
proposed agreement states as follows:-

“The Government seeks to advance the economic development of the people of Sri Lanka and to
that end desires to encourage promote the rational exploration and development of the phosphate
mineral resources of Sri Lanka”
Dr. A.R.B. Amerasinghe J. referred to the relevant principles of Stockholm and Rio Declaration
relating to SD (page 274 of the Judgement) and stated as follows :-

• “The proposed agreement must be considered in the light of the fore going principles. He gave
recognition to the said principles by stating the following:-

•“Admittedly, the principles set out in the Stockholm and Rio De Janeiro Declarations are not
binding in the way in which an Act of Parliament would be. It may be regarded as ‘soft law’.
Nevertheless as a member of the United Nations, they could hardly be ignored by Sri Lanka.
Moreover, they would in my view, be binding if they have been either expressly enacted or
become a part of the domestic law by adoption of the Superior courts of record and by the
Supreme Court in particular in their decisions.

He further pointed out that “The human paradigm needs to be placed within the context of our
finite environment, so as to ensure the future sustainability of the mineral resources and of the
water and soil conservation ecosystems of the Eppawala region and of the North Central
Province and Sri Lanka in general…..”

•There were 7 Petitioners in this case who challenged the agreement stating that if the proposed
agreement is implemented, their fundamental rights under Articles 12(1) and 14(1) (g) would be
violated.

•The proposed agreement contained clauses which were mostly favourable to the Respondent
Company. Respondents’ lay great emphasis are the sole criteria for measuring human welfare.
He referred to an observation made by David Korten, the Founder President of the People-
Centered Development Forum in this respect.

Accordingly “The capitalist economy has a potentially fatal ignorance of two subjects.

(1) The nature of money

(2) The nature of life.

• This ignorance leads us to trade away life for money, which is a bad bargain indeed. We use the
terms ‘money’, ‘capital’, ‘assets’ and ‘wealth’ interchangeably-leaving no simple means to
differentiate money from real wealth. Money is a number. Real wealth is food, fertile land,
building or other things that sustain us. Squandering (spending resources lavishly and wastefully.)
real wealth in the pursuit of numbers is ignorance of the worst kind. The potentially fatal kind.

• Petitioners were granted relief

------------------------------------------Sustainable Development------------------------------------------

Dr. A. R. Amerasinghe J Referred to this doctrine referring to the attitudes of our ancient rulers.
He stated as follows: Organs of the State are guardians to whom the people have committed the
care and preservation the resources of the people .He referred to a statement made by the King
(reported in Mahavamsa) which reads as follows :

“In my kingdom are man paddy fields cultivated by means of rain water, but few indeed are
those which are cultivated by perennial streams and great land by rocks and by many thick
forests, by great marshes is the land covered In such a country le not even a small quantity of
Water obtained by rain, go to the sea without benefiting man.

There was also reference made in this case, to sermon of Arahat Mahinda, son of Emperor Asoka
of India preached to King Devanampiya Tissa relating to guardianship, which is in the following
words:

“O great king, the birds of the air and the beasts have as equal a right to live and move abou in
any part of the land as thou”

The land belongs to the people and all living beings; thou are only the guardian of it.

Therefore it is very clear that the doctrine of public trust has been practiced from ancient times in
Sri Lanka. Our ancient rulers were duty bound to protect and preserve the natural resources for
the benefit of the people including future generations.

There was disregard to the provisions of the National Environmental Act and Mines and
Minerals Act. By the said agreement the Government was intending to give away, for a nominal
sum of money the phosphate mineral which is non- renewal and valuable, which belongs to the
present and future generation of this country. If the proposed agreement was implemented the
said mineral would have been exhausted within a period of thirty years. The Supreme Court
decided that there was arbitrary action by the Government and the officials were violating the
provisions of the Constitution.
-----------------------------------------Public Trust Doctrine-------------------------------------------------

In the Eppawala case Justice Amerasinghe referred to this principle extensively in relation to the
use of Sri Lanka’s phosphate deposits which are non – renewable resource.

He referred to the Stockholm and Rio Declaration Principles and stated that “The non-renewable
resources of the earth must be employed in such a way as to guard against their future exhaustion
and to ensure that benefits from such employment are shared by all humankind.

----------------------------------------Inter-generational Equity--------------------------------------------

In the Eppawala case the petitioners alleged that the environmental pollution resulting from the
said project will be massive and irreversible and will render the affected area unusable in the
foreseeable future. Waste products from the large scale mining as envisaged by the project
include phosphor-gypsum and other radioactive substances, while mining operation will leave
behind pits and gullies which will cause severe health hazards. (pages 285 & 286) The Court
further pointed out that,

“The traditional concept that development and ecology are opposed to each other is no longer
acceptable”.

The Exploration Area mentioned in the agreement was elastic and extendable by the company.

The contract stated that the relevant provisions of the local laws shall be complied (abide by) by
the company. The proposed agreement did not provide for environmental impact assessment
report as required by the NEA. The company’s liability was limited (Branch in Colombo)

----------------------------------------(Precautionary Principle)----------------------------------------------

It was alleged, that under the agreement, a factory for the production of Phosphoric acid and
Sulphuric acid which are highly polluting Substances, would be constructed at Trincomalee
using 450 acre land next to Trincomalee bay. The environment pollution resulting from
The said project will be massive and irreversible and will render the affected area unusable in the
near future.

• Waste products from large scale mining of phosphate as envisaged by the project include
phosphor- gypsum and other radioactive substances.

• Mining operation will leave behind large pits and gullies which will provide a breeding ground
for mosquitoes and lead to the spread of diseases.

The National Academy of Science of Sri Lanka stated that mountains of phosphate-ngypsum will
accumulate polluting the environment.

• The Petitioners drew attention to the inadequacy of the protection offered by the proposed
agreement with regard to the repair and restoration of the environmental damage.

Related areas:

1. Sustainable development

2. International Environmental Law

3. Precautionary Principles

4. Intergenerational Equity

5. Public Trust Doctrine

6. Public Interest Litigations.

Precautionary Principle

New Zealand V France - Judgment of ICJ(1996) Vol 3 (1&2)SAELR page 3

A. This case is in relation to a dispute between over France’s intention to conduct

underground nuclear tests in the South Pacific.

B. Though New Zealand objected to the testing, the application was dismissed.

C. However, Justice Weeramantry and another Judge gave a dissenting judgement

explaining the environmental impacts of nuclear testing.
Vellore Citizens Welfare Forum v Union of India

the Supreme Court of India observed that “the Precautionary Principle suggests that where there
is an identifiable risk or serious and irreversible harm, including for example, extinction of
species, wide spread toxic pollution, major threats to essential ecological processes i may be
appropriate to place the burden of proof on the person or entity proposing the activity that is
potentially harmful to the environment”.

---------------------------------------Precautionary Principle-------------------------------------------------

• In this case the Supreme Court focused on the balancing of competing interests of
development and environment.

• It observed that ‘though the leather industry is of vital importance to the country as it
generates foreign exchange and provides employment avenues, it has no right to destroy the
ecology and pose a health hazard.”

• The Court further pointed out that “the traditional concept that development and ecology
are opposed to each other is no longer acceptable”.

---------------------------------------Sustainable Development-----------------------------------------------

The Supreme Court stated that the polluter pays principle is an essential feature of sustainable
development. In this case several tanneries have been polluting the environment for a long period
of time.

Action was filed to stop tanneries in the State of Tamil Nadu from discharging untreated effluent
into agricultural fields, waterways and open lands.

This caused 35,000 agricultural lands to be partially or totally unfit for cultivation and 170 types
of chemicals used polluted the drinking water.

In this case the court observed that the Polluter Pays Principle means the absolute liability for
harm to the environment extents not only to compensate the victims of pollution but also the
cost of restoring the environmental degradation. – Liable to pay the cost to the individual
sufferers as well as the cost of reversing the damaged ecology

The Court stated that although the leather industry was a major foreign exchange earner in India
and provided employment, the industry has no right to destroy ecology or degrade the
environment that creates health hazards.
• Co. was ordered to pay compensation as well as to pay for the past pollution it generated.

-----------------------------------------Polluter Pays Principle------------------------------------------------

M.C. Mehta v Union of India AIR 1997 SC 734.

• An action was filed against the coke/coal industries situated close to Taj Mahal causing
damage to Taj Mahal. Expert studies proved that acid rain caused by the industries
caused atmospheric pollution and had a corroding effect on the gleaming white marble.

• It was stated that white marble had yellowed and blackened in certain places. The Court
stated that the atmospheric pollution in Taj Trapezium Zone has to be eliminated at any
cost. The Court held that the industries identified potential polluters, had to change to
natural gas as industrial fuel and those who were not in a position to obtain gas
connections should stop functioning in the TTZ.

The SC also held that apart from being cultural heritage, is an industry itself. It is a source of
revenue to the country as millions of tourists visit this tourist people attraction every year.

--------------------------------------------Precautionary Principle--------------------------------------------

The Petitioner sought the closure of a chlorine plant and the relocation of Shriram Foods and
Fertilizers Industries situated in a densely populated area, following the disastrous consequences
of a leakage of oleum gas from a plant. As a result, one person died and several suffered injuries.
Later the factory was closed .This resulted 4000 employees losing their jobs.

• The Supreme Court took this fact into consideration and ordered the factory to be re-started
with specific conditions including periodic health checks of the workers etc.

• This was a writ application and it was referred to a larger bench as issues relating to
fundamental rights and compensation were to be discussed. The court had to determine whether
absolute and non- delegable duty to the community to ensure that no harm results to anyone on
account of the hazardous or inherently dangerous nature of the activity which it has undertaken.
sriram a private company could fall with the definition of state. The court did not rule that it was
state for the purpose of Article 21.

• However, it held that a corporation owes While the petition was pending, oleum gas escaped
from the sulphuric acid plant causing widespread panic in the surrounding community and
harmed certain persons. They filed an action for compensation in the original case and closure
and relocation in the writ petition. The court stated that principle of strict liability evolved in
England more than a century ago in Ryland v Flectcher cannot applied in determining the
liability of hazardous and inherently dangerous industries.

Supreme Court observed as follows: - “where an enterprise is engaged in a hazardous and

inherently dangerous activity and harm results to anyone on account of an accident in the
operation of such hazardous and inherently dangerous activity For ex. the escape of toxic gas, the
enterprise is The court held that the polluting industries were liable to compensate for the harm
caused to the villagers, to the soil and to he underground water and hence they are bound to take
all necessary measures to remove sludge and other pollutants lying in the affected area.

S. Jaganath v Union of India AIR 1997 SC 811

It was found that the shrimp culture in and around certain lakes, adjacent to the East coast was
causing salinity of the soil and the drinking water strictly and absolutely liable to compensate to
all those who are affected. The court stated that the object of the court in such cases is to deter
the wrongdoer.. It said that compensation must be correlated to the magnitude and capacity of
the enterprise as it should have a deterrent effect after. This industry was also detrimental to the
fauna and flora

-----------------------------------------Public Interest Litigation----------------------------------------------

MC.Metha v. Union of India AIR 1987 961 (Shriram gas leak case)

M.C. Metha v Union of India AIR 1998 1115 (Gangies pollution case)

The SC granted standing to a Delhi resident to sue the Government agency whose neglect of
duties resulted in the pollution of several rivers.
Polluter Pays Principle

Indian Council for Enviro-Legal Action V. Union of India (1997) Vol. 4 (1) S.A.E.L.R 2.

Several chemical factories situated in the village of Bichchri in Rajasthan were discharging
poisonous chemical wastes and polluting the environment including the ground water. The
respondents operated these plants without any license. The wastewater which was discharged
into the water ways were untreated and left to be absorbed into the earth. The soil became
polluted and unfit for cultivation. As a result the villagers had to suffer severe hardships

The Supreme Court ordered for the

(1) Closure of the Shrimp culture industries;

(2) To compensate the affected individuals

(3) To contribute for the damage caused for reversing the damage caused to the ecology.

Unreported cases: - Coca cola; Chunakam oil leak cases

MC Mehta V Kamalnath & Others 1997 (1)SCC 388

• In this case the course of the river was diverted to save the motel belonging to the Respondent
from floods.

• He was ordered to pay the pollution cost.

Absolute Liability

Ryland v Fletcher (L.R.3 H.L 33)

The court for the first time enunciated the principle of Absolute Liability.
• According to this principle, the enterprise indemnifies all those who suffer on account of the
carrying on the hazardous or inherently dangerous activity regardless of whether it carried on
carefully or not. The court stated that the enterprise should provide the highest standards of
safety and if any harm results, it should be absolutely liable.

• The court stated that the principle of strict liability evolved in England more than a century ago
in Ryland v Fletcher and was diluted to a large extent by adding exceptions to the principle

• 1. Act of God

• 2. Default of the plaintiff

• 3. Consent of the plaintiff

• 4. Independent act of third party

• 5. Statutory authority.

• The court held that the enterprise is strictly and absolutely liable to compensate all those who
are affected by the accident and such liability is not subject to any of the exceptions in the
Ryland v Fletcher case.

Inter-generational Equity

Juan Antonio Opasa and Others V. The Honourable Fulgencio S. Factorab and another
1994 Vol. (1 and 2) SAELR 113.

The Plaintiffs being minors sued the authorities along with their parents and on behalf of the
generations yet to be born seeking the court to cancel all existing timber licenses and not to issue
any new licenses against the felling of virgin tropical rain forest. They stated that not only they
have a right for themselves but also a duty to defend the rights of the future generations.

Though the defendants objected to the standing of the plaintiffs who were minors, the Court
accepted the Locus standi –Standing to sue. The plaintiffs alleged that they are the citizens of the
Republic of Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the
natural resources treasure, that is country’s virgin tropical rainforests. The plaintiffs stated that if
the timber license agreements are to be implemented and the rain forests are to be cut down the
following consequences will follow :
(A)Water shortage resulting from drying up of water table;

(B)Salinization of water table as a result of the intrusion therein of salt water;

(C)Massive erosion and the consequential loss of soil fertility and agricultural productivity;

(D)The endangering and extinction of the country’s unique, rare and varied flora and fauna;

(E)The dislocation of cultural communities;

(F)The siltation of rivers and sea beds and consequential destruction or reduction of coral and
aquatic resources;

(G)Recurrent spells of drought;

(H)Increasing velocity of typhoon winds which result in the absence of speed breakers;

(I)The flooding of lowlands and agricultural

(J)The reduction of the earth’s capacity to process carbon dioxide gases which may lead to
climate change. The Court was amazed in respect of which the Secretary was giving undue and
unwarranted benefits and advantages to the timber license holders, for he would have ever bound
the

Government to strictly respect the said licenses, according to their terms and conditions,
regardless of changes in policy and the demands of public interest and welfare.

The court referred to an earlier case and stated as follows :“…A timber license is an instrument
by which, the state regulates the utilization and disposition of forest resources to the end, that
public welfare is promoted. A timber license is not a contract within the purview of the due
process clause. It is only a privilege which can be validly withdrawn whenever dictated by public
interest or public welfare”. The Court gave order in favour of the plaintiff.

Environmental Foundation Limited Vs.Urban Development Authority of Sri Lanka and

Others E.A.P Edirisinghe & Others. S.C. F.R App. 47/2004

The UDA entered into a Lease Agreement whereby it sought to hand over the management and
control of 14 acres seaside promenade of Colombo, the Galle Face Green to EAP & Co.
The Petitioner challenged the agreement stating that is should not be leased out due importance
and the nature of the Galle Face Green, which is a landmark history of our nation. The rock
tablet at the sea-ward edge, well preserved up to date, has the following inscription :-

“GALLE FACE WALK

Commenced by Sir Henry Ward 1856 Completed 1859 and recommended to his successors in
the interest of the Ladies and Children of Colombo”.

The Court emphasized the importance of the Galle Face Green for this generations and the
generations to come, and stated that the Agreement was unlawful as the UDA had no authority to
enter into the Lease and stated that Galle Face Green should be maintain as a public utility in
continuance of the dedication made by Sir Henry Ward and necessary resources For this purpose
it should be made available to the people by the Government of Sri Lanka, being the successor to
the Colonial Governor who made the dedication referred to above.

------------------------------------------Inter-generational Equity--------------------------------------------

In the Galle Face case the Urban Development Authority of Sri Lanka was intending to give on
lease the Galle Face Green to E.A.P Edirisinghe and Others, to turn the Green to a mega
entertainment and leisure park with food stalls with a hawker- street style theme .There was no
transparency regarding the management agreement .The petitioners were denied the right to
information etc Urban Development Authority of Sri Lanka did not have any right or interest
whatsoever over the said land.

Public Trust Doctrine

Vasudeva Nanayakara & Others Vs. K.N. Choksy & Others S.S. F.R. App. 158/2007

In this case the Petitioners alleged that the sale of 90% shares of the state owned SLIC (which
was a profit making institution) to the Private sector by wrongful, irregular and unlawful
executive and administration action has caused immense loss to the state and the citizens of Sri
Lanka. The rule keeps all organs of state within the limits of the law and the public trust doctrine
operates as a check to ensure that the powers delegated to the organs or the government are held
in trust and properly exercised to the benefit of the people and not to their detriment.
Amaratunge J referred to Article 28(e) of the Constitution which casts a duty on every citizen of
this country to preserve and protect public property and to combat misuse and waste of public
property. “The conscience of this Court is shocked by the manner in which the senior public
officers had handled the sale of a pivotal asset of the state which belongs to the people of this
country”.

Lalanath De Silva V. Nandamitra Ekanayaka and Others

Which led to the making of Regulations in regard to air pollution.

Geethanie and Environmental Foundation Limited V. Minister of Environment and Others

Which led to the preparation of road maps and plans to reduce air pollution (Pending case)

Al Haj M.T.M. Ashik and Four Others, Trustee of Kapuwatta Mohideen Jumma Mosque
Denipitiya Weligama V. R.P.S. Bandula OIC Weligama and Nine Others

Which led to the preparation of new Regulations in regard to noise pollution. Sand mining case
which led to the making of the Regulations relating to the Prohibition of mechanized sand
mining.
Public Interest Litigation

Hussainara Khatoon V Home Secretary of the State of Bihar AIR 1979 S.C. 1360

The Court recognized standing of a public spirited lawyer to move a petition on behalf of 18
prisoners awaiting trial for very long periods in jail in the state of Bihar. The petition led to the
discovery of over 80,000 prisoners, some of whom had been languishing in prisons for periods
longer than they would have served, if convicted.

PIL has been used to curb the increasing lawlessness of public officials, in public interest.

The case of Rural Litigation and Entitlement Kendra Dehradun v. State of Uttar Pradesh AIR
1998 SC 287 resulted in the closure of lime Stone quarry in Dehra dun Region. In Sri Lanka too
many cases have been filed under PIL.

• EFL v.Minister of Urban Development and Others (Galle face case)

• Geethanai Wijesinghe and EFL V Patali Champika Ranawake (Air pollution) Public Law
Foundation.

• Public Law Foundation V Central Environmental Authority 2001 (3) SLR 330 (Southern
Expressway case)

• Vasudeva Nanayakara v K.N. Choksy and Others SC/FR 158/2007

•H. Senarath and Others v Chandrika Bandaranike and Others SC/FR 503/2005

•Environmental Foundation Ltd and Others v Mahawali Authority of Sri Lanka & Others
2010 Vol 1 1.

However personal interest cannot be enforced through this process. Subash Kumar v. State
of Bihar 1991 SC 420
Public Nuisance

In Saram V. Seniveratne a clear distinction was drawn between public nuisance and private
nuisance. The accused was the proprietor of an oil store where coopering (making or repairing of
barrels) was carried on the noise created by the constant hammering on the barrels affected the
whole neighborhood.

The court observed that “it is not necessary to prove that the public at large should be affected by
the nuisance and the proof of that Community or neighborhood is so affected will be sufficient.
The words “to the public” or “to the public in general” mean a body of considerable number of
persons.

Nair V. Costa 28 N.L.R. 385

Where an action was brought against the accused under section 283 of the Penal Code for
causing public nuisance for failing to take the necessary precautions to prevent his dog barking
continuously at night, and thereby causing disturbance and annoyance to the people in the
neighbourhood. The Magistrate convicted the accused. However in appeal Dalton J stated that
the only question for argument was whether the evidence disclosed any act or illegal omission on
the part of the appellant which caused annoyance to the public or to the people in general who
dwell in the vicinity, and that there is no evidence to show that any person except the Police
Magistrate who convicted the accused. The conviction was set aside.

Municipal Council, Ratlam V. Vardhichand 3 AIR 1980 SC 1622,

An action was filed against Ratlam Municipal Council to compel it to take steps to prevent
public nuisance caused by lack of public sanitation and the discharge of waste from an alcohol
plant into a public street. Many issues relating to human rights, social justice and environmental
degradation were discussed in this case in addition to public nuisance. The court described the
situation in the as follows:

“ The Ratlam Municipal town, like many other Indian urban centers, is populous with human and
sub human species, is punctuated with Affluence and indigence in contrasting co- existence, and
keeps public sanitation a low priority item, with cess-pool and Filth menacing health. The rich
have bungalows and toilets, the poor live on pavements and litter the streets, with human excreta
because they use the roadsides as latrines in the absence of public facilities. Another contributory
cause to the insufferable situation was the discharge from the alcohol plant of malodorous fluids
into the public street.

The Magistrate gave order against the Municipal Council stating that it was guilty of breach of
duty and public nuisance and active neglect as it had not carried out its statutory obligation. The
Magistrate ordered the Municipal Council to abate the nuisance by constructing Drain pipes to
wash away the filth and stop the stench. The Council appealed against the said order.

The court went on to the extent of holding that the defense of the Municipal Council that it had
insufficient funds to carry out its duties under the relevant Act was baseless. Justice Krishna Iyer
stated that the Criminal Procedure Code operated against statutory bodies and others regardless
of the cash in their coffers, even human rights under Part III of the Constitution has to be
respected by the State regardless of budgetary provisions.

M.M. Khalid and 3 others vs. Chairman of Sri Jayawardenapura-Kotte Urban Council
(1996) Vol.3, part III SAELR p. 62

Action was brought under section 98 of Code of Criminal Procedure Act N 15 o 1979. by
residents of Senanayake Avenue against the Chairman of the Jayawardenapura-Kotte Urban
Council. They claimed that the Urban Council was dumping garbage in the vicinity of
Senanayke Avenue which is a residential area causing public nuisance. The said act attracted
crows and animals resulting in a foul stench, the increase of flies and the risk of disease and also
causing danger of flooding as a certain extent of low lying land was being filled up in this
process.

The Magistrate issued conditional order on the Respondent. The Respondent appeared and filed
objections stating the following:

• The Plaintiff has not complied with the provisions 220 of the Urban Council Ordinance which
requires one month’s notice of action against the Urban Council;

• the garbage was being deposited under section 118 of the Ordinance which states that it is the
duty of the Urban Council to clean the streets and for securing the due removal at proper periods
of all house refuse and for the proper disposal of all street soil;

• It was the only site available to the Urban Council;

• The Urban Council was gradually introducing methods to hygienically dispose of the garbage;
• The Urban Council had previously dumped garbage on the site with a view to building it as a
children’s playground and sports ground;

• There was no danger to the plaintiff’s health and wellbeing.

The court rejected the objections and stated that under section 120 of the Ordinance the garbage
must be disposed in a manner which does not cause nuisance.

Further section 220 which requires one month’s notice to be given to the Urban Council
regarding any action, has no application to an action under section 98 of the Code of Criminal
Procedure Act. The court stated that a nuisance cannot be excused under section 261 of the Penal
Code and rejected the Urban Council’s claim and made the conditional order absolute.

In appeal, the court upholding the Magistrate’s order, Justice Krishna Iyer observed that
“although the Indian Penal Code and the Criminal Procedure Code are of ancient vintage, the
new social orientation imparted to them by the Constitution of India makes it a remedial weapon
of versatile use.

In Greena Fernando V. Teckla Saparamadu 1990 (1) Sri.L.R. 270,

A complaint was made by the complainant – respondent under section 98(1) of the Code in the
Magistrate’s court against the appellant and the fifth respondent alleging that they obstructed a
water course that went across a road and their respective Gardens. The Magistrate made a
conditional order directing the fifth respondent and the appellant not to interfere with the water
course and allow it to take its original course.

He referred to the provisions of the Indian Criminal Procedure Code which has identical
provisions as in the Sri Lankan Code. However the Magistrate stated that the provisions of the
Indian Act and the Sri Lankan Code are not identical and reproduced the relevant sections which
Read as follows :-

Section 138(1) of the Indian Code, which is equivalent to section 101 reads as follows :-

“If the person against whom an order under section 133 is made, appears and shows cause
against the order, the Magistrate shall take evidence in the matter as in a summons in a case.”

Section 101(1) of the Sri Lanka Code reads as follows:-

“If such person appears and moves to have the order set aside or modified the Magistrate shall
take evidence in the matter.”
The Magistrate stated that as both the sections are not identical, there is no requirement under
section 101(1) of the Sri Lanka Code to take evidence as in a summons .Further the word
“summons” means a case relating to an offence. In proceedings under section 98(1) of the Code,
the Magistrate is obliged to make a conditional order in the first instance only if he considers it
necessary having regard to a report filed under that section, and on taking such evidence (if any)
if he thinks fit.

Section 98(2) requires a person against whom such order is made, if he is dissatisfied with such
order to move to have it set aside or modified in the manner hereinafter provided. Section 101(2)
lays down the procedure to be followed when such party appears in court and moves to have it
set aside or modified. This section makes it mandatory for the Magistrate to take evidence in the
matter and be satisfied with the Evidence submitted. If however the Court upon the evidence led
on either side considers that the defendant has not been able to meet the case against him, the
original conditional order will be made absolute, and in this case too the provisions of sections
102 and 103 will apply to such order Absolute.

While dismissing the appeal the Court stated that the Magistrate had afforded an opportunity to
all parties to adduce evidence, and has arrived at his finding having given due consideration to
the material placed before him. The procedure adopted by the Magistrate calling upon the
appellant to begin it in accordance with the provisions of the Code.

In the case of Neil Fernando V. Ranjith Cooray and Others 1999 (1) Sri.L.R. 281, report
was filed in the Magistrate’s Court against the appellant who was a funeral undertaker who
caused nuisance by channeling impure and Contaminated water utilized for the purpose of
washing cadavers in the process of embalming and from permitting noxious vapors of formalin
to emanate into the atmosphere thus contaminating the air which was detrimental to the health of
the complainants and others. The Magistrate after considering the report and made a conditional
order permitting the appellant to continue with the business subject to the conditions that

• The respondent - appellant should ensure that contaminated water in washing dead bodies and
cadavers should not be permitted to flow on to the drain on the main road; and

• The parts removed from the cadavers in the process of embalming should be systematically
disposed of. The appellant made an appeal against the order to the High Court in terms of the
320 (1) of the Code of Criminal Procedure Act read with section 4 of the High Court of the
Provinces Special Provisions Act No 19 of 1990.

The High Court Judge acting in revision set aside the order of the Magistrate. An appeal was
made to the Supreme Court from the said order. The question for argument was whether one can
appeal to the Supreme Court without a final order of a lower court. The court into consideration
the relevant sections of the Code of Criminal Procedure Act and was of the view that an order
made under section 101 of the Code is an appealable order which attracted the provisions of
section 320 of the Code.

The fifth respondent agreed to comply with the order and the appellant however sought to have
this order set aside. The learned Magistrate having taken evidence under the provisions of
section 101(1) of the Code, delivered order making the conditional order absolute, in terms of
section 101(3) of the Code.

The appellant filed an appeal on the ground, that the Magistrate had misdirected himself on the
question as to which party should begin in the proceedings under section 101(1) of the Code, and
that the Magistrate had made order that the appellant should begin and which is wrong it law.
The court also stated that an order made under section 109 is an appealable order. The Magistrate
set aside the conditional order after taking into consideration the objections taken by the
appellant and the contents of the affidavit produced.

The Magistrate relied on the provisions of section 415 of the Code which authorizes the learned
Magistrate to have acted upon the said affidavit. The Supreme Court set aside the Order made by
the High Court stating that the court had erred in taking into consideration extraneous matters
and affirmed the order of the Magistrate.

Elal Jayantha V. Officer-in-charge, Police Station, Panadura1986 (1) Sr.L.R 334

is a case which deals with the procedure which should be followed in making order under
section98(1) of the Code. The Police filed a report in the Magistrate’s Court alleging that the
appellant was committing nuisance to the neighbours by working a metal crushing machine
which emitted deafening noise and dust carrying particles of metal thus creating a health hazard.
The matter was fixed for inquiry and both parties appeared. After hearing evidence of both
parties, the Magistrate directed himself to decide whether the respondent created a public
nuisance,

and whether his acts were injurious to the health or the physical comfort of the community and
after considering the materials before him concluded that the respondent had committed a public
nuisance. There was also evidence that the machine was operated without obtaining a license
from the local authority.

The Magistrate made order against the respondent. He appealed to the Court of Appeal against
this order The Court of Appeal stated that there was a defect in the proceedings adopted by the
Magistrate.
Section 98 (1) of the Code reads as follows; “Whenever a Magistrate considers on receiving a
report or other information and on taking such evidence as he thinks fit that –

(b) that any trade or occupation or the keeping of any goods or merchandise should by reason of
its being injurious to health or physical comfort of community be suppressed or removed or
prohibited, or….. Such Magistrate may make a conditional order requiring the person causing
such obstruction or nuisance to remove such obstruction or nuisance”.

This is confirmed by section 98(2) which states as follows:-

(2) Any person against whom a conditional order has been made under subsection (1) may
appear may appear before the Magistrate making that order or any other Magistrate of that court
before the expiration of the time fixed by that order and move to have the order set aside or
modified in manner hereinafter provided.

The court was of the view that the Magistrate had not followed the said procedure. The court
took into consideration whether due to this irregularity of procedure the proceedings should be
allowed to stand. As there is overwhelming evidence that a public nuisance has been created and
the irregularity has not occasioned a failure of justice – section 436 of the Code, the Magistrate’s
order is upheld. The court also issued a statement of warning as follows.

“ This ruling is given only on the facts and circumstances of this particular case, and should not
be considered as a license to Magistrates to boldly disregard the procedural provisions of the
Code of Criminal Procedure Act.

In the case of Singalanaka Standardard Chemicals Limited V. T.A. Sirisena and Others
(1996) (3) 3SAELR p.69, a revisionary appeal was made to the High Court of the Province of
Avissawella from the Magistrate Court of Homagama to reverse the conditional order of the
Magistrate, halting the operation of the Respondents -Petitioner ’s chemical factory, which
manufactured aluminium sulphate. On a complaint made to the effect that the emissions and
discharge from the said factory constituted a public nuisance, the Magistrate acting under the
provisions of Chapter IX of the Code of Criminal Procedure Act No. 15 of 1979 dealing with
public nuisance, ordered the closure of the factory.

The issue which was taken up in this case was whether the Magistrate has power to close down a
factory under s. 98 (1) of the C r. Pro. Act. The Magistrate was of the view that under s. 98 the
only way in which public nuisance could be stopped is to stop the means of production by
ordering the closure of the factory for a limited period of time; as the factory has been causing
damage to the health and physical comfort of the petitioner and the community.
The case of Keangnam Enterprises Ltd. vs. E.A. Abeysinghe and Others (1994) 2 S.L.R.
p.271, scussed the provisions of Chapter IX of Code of Criminal Procedure Act dealing with
the power of the Magistrate to abate public nuisance, and provisions of National Environmental
Act dealing with the Environmental Protection License.

Keangnam Enterprises Company was engaged in rehabilitating the Ambepussa-Dambulla-

Anudadhapura road. The Company had established a metal quarry, a metal crusher and a premix
plant on a land leased for this purpose. The residents of the area claimed that the quarry blasting
operations were causing them immense hardship and personal injury and damage to property and
complained to the Magistrate’s Court and sought relief under section 98 (1) and 104 (1) of the
Code of Criminal Procedure Act.

An objection was taken by the Company stating that the Magistrate’s Court has no jurisdiction to
make orders regarding the application of the Informant-Respondent. The Magistrate rejected the
objection and fixed the matter for inquiry under section 101 (1) of the Code. The Company had
not obtained the Environmental Protection License as required by section 23A of the National
Environmental Act .The Respondent-Petitioner (the Company) made an application to the Court
of Appeal for revision and sought relief.

The primary issue which was taken up in the Court of Appeal was whether the Magistrate’s
jurisdiction to the information of the Informant- Respondents and to make orders under Chapter
IX Code of Criminal Procedure Act, had been ousted by the provisions of the National
Environmental Act

There was an issue which arose as to whether the Magistrate’s jurisdiction to entertain the
information of the informant and to make order under Chapter IX of the Code has been ousted by
section 29 of the National Environmental Act, No. 47 of 1980.

Premasiri Weerasekara V. Keangnam Enterprises Ltd.CA.(PHC)Apn. 40/2004

This is another case in which the said issue was discussed. This was an application for revision to
set aside the Order of the High Court in a case of abatement of public nuisance.

Information was filed in terms of section 98 (1) of the Code in the Magistrate’s Court against the
Respondent who was carrying out blasting of rocks with explosives, alleging that the Company
had caused public nuisance due to excessive noise, vibration and the emission of dust. The
Learned Magistrate made a conditional order, requesting the Respondent to deposit Rs. 500,000/-
and not to proceed with quarrying activities.

The Respondent deposited the said sum of money and raised a preliminary objection stating that
the Magistrate Court does not have jurisdiction as an Environmental Protection License had been
obtained in terms of section 23A of the National Environmental Act and The Learned Magistrate
over-ruled the preliminary objection and ruled that a license obtained under the National
Environmental Act does not deny the Magistrate Court jurisdiction in respect of a public
nuisance. The Respondent by way of revision moved the High Court in the matter and the court
issued a Stay Order staying the operation of the Learned Magistrate’ Order and subsequently
quashed the said Order. The Petitioner appealed against the Order of the High Court to the Court
of Appeal. Appeal was made on the following grounds :-

a) The learned Judge of the High Court has failed to appreciate the case of Keangnam
Enterprises Ltd. V.E.A. Abeysinghe and others referred to in his Order in fact recognizes the
jurisdiction of the Magistrate's court in similar instances.

b) The Order of the High Court is bad in law in that it fails to appreciate that it is a well-accepted
principle in law that in the interpretation of statues, a statute should not be construed as taking
away the jurisdiction of the Courts in the absence of clear and unambiguous language to that
effect.

c) In particular the Judge of the High Court failed to appreciate that even if a person has a license
for a certain activity, if such person “does not comply with the conditions of a license”, then such
a person “acts as if he has no license” and would therefore be subject to the public nuisance
jurisdiction of the Magistrate’s Court.

d) The learned Judge of the High Court has failed to appreciate that a license in terms of the
National Environmental Act is not a license to commit a public nuisance and that it is well
established law that even if a person a license if his actions cause a public nuisance then the
Magistrate’s Court has jurisdiction in this regard.

e) The Order of the High Court is bad in law in that it fails to take into account the fact that the
Petitioners have also complained of a public nuisance being caused by the activities of the
crusher situated on the land and that the said crusher is not the subject of the license filed by the
Respondent before Court. The Court of Appeal analyzed the Order of the Magistrate and states
that the Magistrate ordering the respondent to pay the money and Permitting the company to
proceed further is bad in law. Conditional Order should require the party concerned to stop the
noise or disturbance as the case may be until same is vacated on an application by the opposing
party.

The respondent’s position that section 29 of the NEA has ousted the jurisdiction of the
Magistrate cannot be accepted. There is no inconsistency between section 98 of the Code of
Criminal Procedure Act and section 29 of the NEA. There is no overlapping between the said
laws.

The law relating to public nuisance like in earlier times is an important legal remedy available to
litigants to safeguard their basic rights for a peaceful living.

Public Interest Law Foundation Vs. Central Environmental Authority 2001 (3) S.L.R. 330
(Southern Expressway case)

Project approval was challenged on the ground that the alternative rail route was not considered.
The COA held all alternatives were Sufficiently considered This was considered in the Upper
Kotmale Project. In this case the Ceylon Electricity Board requested approval for the
construction of hydro power plant for the purpose of generation of electricity. The matter was
referred to a technical committee by the PAA which made suggestions and did not recommend
approval. As approval was not given the PP made an appeal in terms of section 23DD of the
NEA to the Secretary of Ministry of Environment. Appeal was rejected. Secretary was requested
to reconsider the matter. The approval was later given subject to several conditions relating to
mitigating measures the Minister made Regulations for the purpose of monitoring the project –
vide Gazette Extraordinary No.1283 /19 dated 10th April 2003.

Specific monitoring duties in the form of mitigating measures have been specified. The National
Environmental (Upper Kotmale Hydro-power Project – monitoring Regulation No. 1 of 2003.
Due to the environmental concerns in the Project

Environmental Foundation Limited v. CEA and Others COA No. 1556/2004

The Petitioner challenged the validity of the approval given by the CEA to a private company to
construct a mini hydro project on The upper reaches of a river, at an altitude of about 1750
meters above sea level, in an area with steep mountain slopes As approval was granted on the
basis of IEE and not EIA, the public was not entitled to any notice of the project. The PAA had
granted approval to an IEE on the recommendation of a technical committee. Only the PAA has
the power to decide as to whether an IEE or EIA should be submitted. The CEA cannot in law
surrender the discretion vested in it to the technical committee. Public orders made by public
authorities are meant to have public effect and are intended to affect the conduct of those to
whom they are addressed and must be construed objectively

Writ of certiorari was granted.

In the case of Heather Mundi v. CEA and Others,

The Road Development Authority as a Project Proponent requested approval from CEA to
construct Southern Express way in order to link Colombo and Matara Approval was granted by
the CEA subject to several conditions which included the manner in which relocation of the
people could be minimized, providing alternative lands together with the payment of
compensation at the market price without delay, minimizing traversing through wetlands etc.
There were three stages of the project (original, combined and final traces). The Appellants’
lands were not affected within the purview of the original trace and combined trace. However
they were acquired at the final trace of the project. They complained that they were denied an
opportunity of being heard before such adoption, that the CEA was not informed of the final
trace, that there was no supplementary EIA and that CEA’s approval was not obtained. In fact
the final trace was some distance away from the original trace and the combined trace. One of
the Appellants had commenced construction of her residence with the required local authority
approval and completed construction and applied for electricity connection.

It was then she learnt that her residence would be affected by the Express way. The Respondents
stated that the approval given would cover the final trace too. The Appellants prayed for
certiorari to quash the CEA approval and for Mandamus to direct the CEA to call for a
supplementary EIA from the RDA in accordance with the prescribed procedure and stated in the
Court of Appeal that the alterations effected by the final trace were illegal.

While hearing the writ application the COA stated that “all parties agree that the express way
project is an absolute necessity The COA appointed a judicial committee to inquire and submit a
report on the following:

•whether the deviations which form the subject matter of the case, are feasible in terms of the
NEA and the economy of the Project.

•whether the deviations are environmentally and socially the most desirable. The incumbent
priest of a temple complained that the final traced traversed through the temple resulting in
several of the structures of the temple and the bo tree being destroyed. The villagers also
complained that they were unaware of the final trace.

Based on the report of the judicial committee the COA stated that ‘The alterations made in this
case are in fact changes of a substantial nature and extent. The Appellants’ main grievance is that
they were denied the right to be heard in regard to the final trace- which the judicial committee
confirmed. The fact that some of their neighbours might have been heard, at some previous stage,
does not excuse the denial of their right to be heard, and that aspect the COA failed to consider.
The COA referred to Goa Foundation v Kondan Railway Corporation, AIR 1992Bombay
471, here it was held that “a public project (a railway line) of great magnitude undertaken for
meeting the aspirations of a section of the people cannot be defeated on account of “extremely
negligible” damage to a few persons., to the effect that ‘the interest of the applicant had to be
measure against the needs of good administration which includes

need for speed, finality in decision making and the public interest” and held that “the court
should be cautious when exercising the discretionary remedy of writ jurisdiction where a project
of public importance had already commenced and resources have been committed towards it
implementation and the possibility of quashing a decision leading to unbudgeted expenditure.}

The COA dismissed the application and concluded as follows:-

“The Courts have to balance the right to development and the right to environmental protection.
While development activity is necessary and inevitable for the sustainable development of a
nation, unfortunately it impacts and affects the rights of private individuals, but such is the
inevitable sad sacrifice that has to be made for the progress of a nation. Unhappily there is no
public recognition of such sacrifice which is made for the benefit of the larger public interest
which would be better served by the development. The courts can only minimize and contain as
much as possible the effect of such rights.

This is an appeal from the Court of Appeal to the Supreme Court. The Supreme Court stated that
this is a matter relating to the violation of FR. And also stated that the courts have recognized
and applied the Public Trust Doctrine; that power vested in public authorities are not absolute or
unfettered but held in trust for the people, to be exercised for the purposes for which they have
conferred; and that doctrine extends to national and natural resources.

Besides executive power is also necessarily subject to fundamental rights in general, to Article
12(1) in particular which guarantees equality before the law and the equal protection of the law.

Protection of the law includes the right to notice and to be heard. According to Article 126(3) FR
matters should be referred to the SC which has the exclusive jurisdiction on FR.

lthough this court would still be exercising the writ jurisdiction, its powers or review and relief
would not be confined to the old prerogative writs. These Constitutional principles and
provisions have shrunk the area of administrative discretion and immunity. The Supreme Court
analyzed the meaning of ‘alterations”

Regulation 17 (i) (a) and condition III.

Here the changes were substantial; they adversely affected the Appellants and their property
rights; they were changes in respect of the route of the Express-way, and the route was a
principal component of the project The SC held that they were alterations. The Appellants were
entitled to notice to be heard. The CEA approval in 1999 did not cover the final trace and the
location of the final trace was contrary to the CEA approval. The COA did not take note of the
impact of the fundamental rights on its writs jurisdiction. If the matter was referred to the SC
under 126(3) the appellants would have been entitled to compensation since the jurisdiction is an
equitable one. If it is permissible in the exercise of a judicial discretion to require a humble
villager to forego his right to a fair procedure before he is compelled to sacrifice a modest plot of
land and a little hut because they are of “extremely Negligible” value in relation to a multi-
billion rupee national project, it is nevertheless not equitable to disregard totally the infringement
of his rights; “the smaller the value of his property, the greater to compensation.” The Court held
that the deviations were in fact alterations which need fresh approval.

Pollution

In Jayawardena V Akmeemana Pradeshiya Sabha’s case, the petitioner applied to the CEA
for permission to set up a metal crushing operation and paid the inspection fee. CEA granted
permission through the PS. The petitioner submitted an Application to the P.S. for an
Environmental Protection License (EPL) and after inspection the petitioner was granted the EPL
subject to conditions. Thereafter there were complaints made to the Minister against the
operation and two police officers requested the petitioner to stop operations.

A public complaint against the construction of the metal crusher was handed over to the
chairman of the P.S. as a result of the noise and dust pollution caused by the said operation. Also
on inspection it was found that the petitioner had commenced operations without obtaining a
Trade License as he was obliged to do by law and in terms of the letter of approval issued by the
CEA.

The conditions stipulated in the letter of recommendation of the CEA and in the Environmental
Protection License (EPL) at preventing or minimizing noise and dust pollution had not being
complied with. The Chairman cancelled the license as the conditions have been violated.

Environmental Protection License (EPL aimed at preventing or minimizing noise and dust
pollution had not being complied with. The Chairman cancelled the license as the conditions
have been violated. The petitioner made a FR application to the Supreme Court under Article 14
(1) (g) stating that he was not given a hearing before the cancellation of the EPL.

Dr Amerasinghe J referred to sections 23A, 23B, 23D and 23E of the NEA and the relevant
regulations and stated as follows:
“Article 14 (1) (g) of the Constitution declares and recognizes the right of every citizen to the
freedom to engage by himself or in association with others in any lawful occupation, profession,
trade, business or enterprise. The emission of dust and noise from the metal crushing operation
was lawful only if such operation was licensed. A license was issued to the petitioner; but it was
subject to specified conditions. In my view a person who does not comply with the conditions of
a license, acts as if he had no license….”

The petitioner acted in violation of the conditions subject to which the EPL was issued.
Therefore the Authority was entitled to cancel the EPL. The conditions on the basis of which the
CEA authorized the license –the noise created by the metal crusher caused at least irritation; by
discharging dust it brought about an undesirable change in the characteristics of the air which
could adversely affect the inhabitants of the neighbourhood. The air pollution and the noise
pollution altered the receiving environment and adversely affected the beneficial use of the
environment by making it less conducive to public safety and health. The SC declared that his
FR under 12(1) and 14(1) (g) were not violated.

Gunaratne V Homagama Pradeshiya Sabha

The petitioner made an application to the P.S. for the purpose of establishing a saw mill. This
was referred to the CEA. The Technical officer of the P.S. inspected the site and recommended
approval. This was referred to the CEA, which without adducing any reasons refused to approve
the application.

On Minister’s intervention the CEA stated that it had no objection and stipulated certain
conditions. The P.S. laid down 7 more conditions and gave approval. The petitioner started
clearing the site, erecting a boundary wall and to obtain electricity connection. While
preparations were on he received a letter from the Chairman P.S. informing him that the CEA
had informed that the CEA does not recommend the industry and to direct the petitioner to
temporarily suspend operations

When the petitioner appealed to the Minister, the DG of the CEA informed him that the
proposed industry would be a nuisance to the public in the area and therefore the authorization
initially given was withdrawn. The petitioner filed an application to the SC stating that his FR
under Article 12(1) had been violated. The SC stated that “Publicity, transparency and fairness
are essential if the goal of sustainable development is to be achieved…None of these elements
were present in this case.

Dr. Amerasinghe J stated that the respondents have acted in an arbitrary manner in suspending
the authorization granted earlier and the suspension was ill-conceived.
The court held that petitioner’s right under Article 12 (1) had been violated and quashed the
order of suspension.

Anura Lamahewa v. Habaraduwa Pradeshiya Sabha and Others Fernando (1995) 2

SAELR 16

Appeal under section 23E of the NEA by Kamal Fernando (1997) 4 SAELR 16. The Appellant
applied for an EPL in respect of a brick kiln. The CEA imposed two conditions namely that the
kiln should be situated 200 meters away from the Respondent’s residence and the smoke from
the kiln be disposed by means of a chimney 30 feet high.

The Secretary held that the condition imposed on the Appellant requiring him to maintain a
distance of 200 meters was arbitrary and had no technical basis. The second condition was held
to be reasonable according to the guidelines issued.

Al Haj M.T.M Ashik and Others v Bandula OIC Weligama and Others SC.FR. Appl No.
38/2005

The application for infringement of rights was instituted by the Trustees of the Kappuwatta
Mohideen Jumma Mosque in Weligama on the basis that the Police had imposed certain
restrictions on the use of loudspeakers by their mosque which have not been imposed on two
other mosques in the area under section 80 (1) of the Police Ordinance.

EFL and others were permitted to intervene in the case to make a determination as to the
effective guarantee of the fundamental right enshrined in Article 12(1) of the Constitution for the
equal protection of the law in safeguarding the people from harmful effects of noise pollution.

Sections 23P to sections 23R of the NEA contain provisions relating to noise pollution.
Accordingly it would be an offence to emit noise in excess of the volume intensity and quality of
the standards or limitations prescribed. There are no regulations dealing directly with the control
of noise from religious institutions.

The issue which was discussed in this case was whether the exercise of right to religion can be
restricted by the provisions relating to noise Pollution. (Penal Code, Police Ordinance and the
National Environmental Noise Control Regulations No. 1 of 1966)
No religion advocates a practice that would cause harm to another or worse still as would cause
pollution of the environment, a health hazard or a public nuisance being an annoyance to the
public. Several cases were discussed here and the court gave order restricting the use of loud
speakers.

Related Areas:

1. Public nuisance

Source: The Environmental Law lecture note (2019) by Mrs. Fatima Thalaysingam
(Attorney-at-Law)

Compiled by: Chathurika Perera (Intermediate Year)

Hasala Gunathilake (Intermediate Year)