Sri Lanka Law Reports
11989} 1 Sri L. R
M. S. de SILVA
. CHAIRMAN, U. C. AMBALANGODA & ANOTHER
5ENEVIRATNE J. FERNANDO J & AMERASINGHE J.
S.C. APPLICATION NO.-161 OF 1987.
OCTOBER Y7.’ 1987.
Fundamental Rights — Infringement of Fundamental Rights under Article 12(1}.
. 12 (2) and 14 (1).(g) of the Constitution — Disconnection of electricity supply.
The petitioner's supply of electricity used by him to run a chillie grinding mill wasdisconnected by the 1st respondent Chairman of the Urban Council ofAmbalangoda'on the ground that the running of such a mill caused pollution,noise, nuisance and was a health' hazard. No licence was granted to run the mill.
The fact that the electricity is being used to produce an improper result isnot relevant. The-disconnection was unlawful but to attract relief under Article'12 (1).if must also be established that those in like circumstances are beingunequally treated.-It. was not established that the other, business referred to bythe petitioner like manure-factory, printing press, casting types, electric tapefactory and cinnamon processing factory were in fact similar. No violation ofArticle 12 (2) has been established as 1st respondent's conduct has not beenproved to have been motivated by political animosity.
Licensing requirements in regard to offensive or dangerous trades or whichare likely to create a nuisance'are clearly justifiable under Article 15 (7) in theinterests of public health, securing the rights of others, and the justrequirements of the general welfare of society. In the absence of a licence, the
. petitioner's occupation or'business was not " lawful " and his complaint is notwithin the scope of Article 14(1) (g).
In making an application under Article 1 26 the petitioner has misconceivedhis remedy.
Cases referred to
Negombo M.C. v. Fernando'— 63 NLR 51 2
M.C. Badulla v. Ratnayake — [1978-79] 2 SRI LR 141.
David v. Abdul Cader 77 NLR 18.
Coree.v. U.C. Kotte — 62 NLR 253.
Nandasiri v. G.M.S. de Silva
SCChairman. U.C. Ambalangoda & Another (Fernando. J.)103
Application complaining'of infringement of Fundamental Rights.
V. Vivekanandan with S. Perimpanayagam. K. Packialingam and Miss K.Rajanathan for Petitioner.
S. Wijesinghe with Miss S. Nandadasa for the 1st Respondent.
Cur. adv. vult.
•December 2. 1988FERNANDO. J.
This application is in respect of the alleged infringement of thePetitioner's fundamental rights, under Articles 12(1), 12 (2) and14 (1) (g). by the 1st Respondent, the Chairman of the UrbanCouncil of Ambalangoda, who directed the disconnection of thesupply of electricity to premises No. .370. Main Street.Ambalangoda. where the Petitioner was carrying on the businessof a grinding mill. The Petitioner's case is that (a) others carryingon like businesses were not similarly. treated, (b). he- was-discriminated against on account of political opinion, arid (c) hisright to engage in a lawful, business was violated.
In October 1986, the Petitioner, took these-premises on lease,
. and applied to the Councillor a 3-phase supply of electricity,forbusiness purposes, specified as a grinding mill.-Some residentspetitioned against'the business of grinding" chillies being carriedon'in these premises ; this was’"referred for inquiry to certainofficials, who reported that the Petitioner had not obtained a'licence to carry on this.business in.these premises, that the area.was a mixed'residential area, that approval should, not be grantedfor such business, and that before a supply, of electricity wasgiven; these matters should be brought to the notice of theElectrical- Superintendent. The Petitioner obtained a letter of 'consent from several residents, but not from his immediate,neighbours on-either side. By letter-dated 29.11.86, the 1stRespondent informed the Petitioner of the refusal of permissionfor the proposed grinding mill.
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The Petitioner pursued his efforts to obtain permission for thegrinding mill. In March 1987. the Urban Development Authority(U.D.A.) requested the 1st Respondent to consider the grant ofpermission subject to such conditions as to the hours ofbusiness, and'the prevention of pollution and noise, as may berecommended by the Central Environmental Authority (C.E.A.).Having inspected the proposed grinding mill, that Authorityrecommended conditions as to an- exhaust ventilation system, achimney taller than the neighbouring buildings, the maximumnoise ievel. and working hours. The 1st Respondent neverthelessdid not permit-the grinding of chillies. By letter dated 9.4.87. thePetitioner complained to the U.D.A. that, while the Council wastaking steps to give this electricity supply, permission for thegrinding of chillies had been refused ; he requested the U.D.A. toadvise the Council to grant such permission. On or about1 2.4.87 the electricity, supply was'given, and the Petitioner waspermitted to carry on. and did commence, the business of agrinding mill; the 1st Respondent states that'the grinding ofchillies was expressly excluded. No formal licence was issued. Upto this time; the relationship between the Petitioner and the 1stRespondent was cordial. ■ ■
■ While these facts are undisputed, the contents of a documentdated 9.4.87 are hotly disputed. The Petitioner says that he -handed, to the 1st Respondent some-blank papers, signed'byhim, to be used for the purpose of obtaining the licence. The 1 stRespondent denies this, asserting that this document wastendered by the Petitioner in connection with the electricitysupply, which had not yet been given on 9.4.87 ; this containsconditions, specified by the Petitioner, which are substantiallythe same as those specified by the C.E.A. shortly before, as wellas a condition excluding'thegrindmg of chillies. The signaturebeing admitted, it .was for the Petitioner to prove that thedocument was signed in blank (and perhaps also that the 1stRespondent had no implied authority to insert whatever nowappears-therein). His letter, dated 9.4.87 to the U.D.A. and thefact that he was given .the electricity supply and permission torun. the.grindirig mill within a few days makes it.probable that thecontents of this document were not inserted after it was signed. Ithink it more likely that, six months having already elapsed, he
Nandasiri v. G.M.S. de Silva
SCChairman. U.C. Ambalangoda & Another (Fernando. J.)105
reluctantly agreed to a condition excluding the grinding ofchillies ; but nevertheless persisted in his efforts to get the U-.D.A.to advise the Council to. grant such permission.
Later the relationship deteriorated. The 1st Respondent hadbeen elected to the Urban Council as a candidate of the .UnitedNational Par.ty, of which the Petitioner was. an active supporter.Early in June 1987, the 1st Respondent tendered his nominationfor.the Urban Council elections; as a nominee of;an IndependentGroup, and was thereupon expelled from the U.N..P. Thereafter,says the Petitioner, steps were taken to cripple his business.During this period, the Petitioner was grinding chillies at hisgrinding mill ;-permission having been refused on 9,4.87, there -is nothing to suggest that any suGh permission was thereaftergiven; despite a request by the U.D.A. by letter dated 20.4.87 toconsider granting, such permission.-Complaints were irriade byMajor Ranjit Vithana, the Petitioner’s- immediate-.neighbour, inregard to pollution, noise and-injury to health. Acting ,on thesecomplaints, the 1st Respondent warned the'Petitioner opt. togrind • chillies, and the Police instituted' proceedings (stillpending) in-the Magistrate's Court, where too he was similarlywarned, the C.E.A. by letter dated 24.9.87 informed the U.D.A.that upon an inspection of the premises it was found that chillieswere being ground,, causing air and noise pollution, as well asbeing a nuisance to residents in the vicinity. Om 184.108.40.206. .the.1st Respondent directed the disconnection of the Petitioner'selectricity supply, although, he avers, long before thaT date hehadeeased to grind chillies:-
We are called upon to'decide whether the disconnection of thePetitioner's electricity supply'was unlawful, and in violation ofArticles 12 (1). 12 (2) and 14 (1) (g).. •…….
It. was conceded that the 1st Respondent could exercise therights and powers of the Urban Council in regard'to the grantand disconnection of a supply of electricity. It was submitted forthe Petitioner that there was'no statutory provision or contractualright of disconnection in the circumstances': bf this case. Theapplication.for supply was for business purposes, and there wasno^right to exclude-a particular business ; any .condition
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purporting to exclude the grinding of chillies, was therefore ultravires ; and hence disconnection on that ground was unlawful. Herelied on Negombo M.C. v. Fernando (1). where H.N.G. Fernando.
J.. held that there cannot be imposed on a contract for thesupply of electricity terms and conditions which are notauthorised expressly, by the Electricity Act or the regulationsmade thereunder. Counsel for the 1st Respondent did not seekto contend that the impugned condition was " authorised ". Thisdecision was followed in M.C. Badulla v. Ratnayake (2) : there thebusiness of milling paddy was an " offensive or dangeroustrade " which could be carried on with a licence from theCouncil : however, under a zoning scheme this business wastotally prohibited in buildings in residential areas. The plaintiffapplied for a'supply, of electricity fbr such a business in aresidential area ; notwithstanding the zoning scheme the Councildecided to give the supply, accepted payment and commencedwork. Later the Council refused to give the supply, on the basisthat it was not legally able'to grant a licence for that businessarid cthat no useful purpose would be served by supplyingelectricity. N/ythialingarm J.. held that the purpose for which thesupply was required was irrelevant : if the plaintiff carried on aprohibited .business, .he would be liable to prosecution andpunishment, and " this has nothing to do .with the ElectricityAct". However, the plaintiff at the relevant time knew nothingabout the zoning scheme and the legal prohibitions, and his. evidence, that.if such-business was not possible, he would haveused the premises for some other permissible business, wasaccepted. In those circumstances, it was held that the refusal togive the supply of electricity was wrongful, and the plaintiff was. held entitled to damages.
Jf a supply of electricity is given for a purpose which becomesillegal, because of statutory provisions or the failure to obtain a-necessary licence, jt may well be contended that the contractualobligation is discharged by supervening illegality, despite theabsence of statutory or contractual coriditioris entitling the. supplier to disconnect the supply. This question was notexpressly decided in the cases cited, nor did Counsel for the 1 stRespondent,submit that principle was. applicable to the presentcase..and.I therefore do hot express any opinion thereon ; for it.
,Nandasiri v. G. M S. de Silva
Chairman, U.C. Ambalangoda & Another- (FernandQ. J.)
may also involve other issues, e.g. whether the 1st Respondent'sfailure’ to grant a licence was wrongful. I have therefore toproceed on the assumption that the disconnection was unlawful,as the condition, relied on was not ." authorised ", however- laudable the 1 st: Respondent's motives (of preventing pollutionand nuisance) might have been.
Counsel for the 1 st ' Respondent fell back on a condition'contained in terms and conditions said to have been annexed tothe original application, authorising the'disconnection of thesupply of any consumer who uses or applies electrical energy, inan improper manner so as to obstruct any other consumer or theefficient supply of electricity ; he submitted that subjectingresidents in the. vicinity to environmental pollution.and causing anuisance amounted to such obstruction. This condition relates to'obstruction to other ".consumers ", and for that reason alone aviolation has not been established.- More important, it refers tothe improper manner in which electrical- energy, qua energy; isused, and-not to ah improper result produced by a proper use'of •electricity. Thus electricity may be used properly' (Complying withtechnical requirements regarding-voltage, amperage, quality ofwiring, earthing, etc.) in-a printing press ; if the press is used atsome point of time to print defamatory or seditious matter, it isthe. press, .and not electricity, that is then being used in animproper, manner, This submission also fails, and it isunnecessary to consider the submission in reply, that no such,document was ever signed by the Petitioner and that a copythereof was'not even served on him in these proceedings. .
The Petitioner's allegation that others were carrying Onbusinesses of a similar nature at Main Street was denied ; theinstances cited were " manure factory, printing press, castingtypes, electric tape factory and. cinnamon processing factory.'"and the 1st Respondent's rejoinder was that no adverse reportsor complaints had been received in respect of these. Article 12applies where those in like circumstances are unequally treated-;.the material before us is totally inadequate to establish that theother businesses were in fact similar'. Ne do not know, whetherthey were causing comparable pollution and nuisance, whether"adequate precautions were taken, whether they were-duly
Sri Lanka Law Reports
[1989i 1 Sn L R.
licensed, and whether they had been carried on before newenvironmental standards came to be recognised. If thedisconnection is unlawful, it would entitle the Petitioner to a legalremedy, but it would not amount -to a violation of Article 12(1)unless both factors — like. circumstances, and unequaltreatment — areestablished. In regard to the allegation that the1 st Respondent was motivated by political animosity, there is nodoubt that the 1st Respondent's conduct from October 1986vyas consistent : he was motivated by other factors, relating toenvironmental pollution and nuisance. The delay in the supply ofelectricity and the refusal'of a licence, up to April 1987. weretherefore not attributable to political bias, for differences ofpolitical opinion occurred only in June 1 987 ; and there was nosignificant change of attitude by-the 1st Respondent thereafter.No violation of Article 1 2 (2) has been established.
Counsel also submitted that the Petitioner's right to engage ina lawful occupation or business has been infringed. This right isnot absolute, but is subject to restrictions in terms of Articles 1 5(5.)__and 1 5 (7). It is common ground that a licence was requiredfor the business in question, and had not been obtained ..there.was no suggestion that the requirement of a licence wasunconstitutional. Licensing requirements in regard to offensiveor dangerous, trades, or which are likely to create a nuisance, areclearly justifiable under Article 15 (7) : in the. interests of public.'health, securing the rights of others, and the just requirements ofthe general welfare of society. In the absence of a licence, thePetitioner's occupation or business was not " lawful ”, and thusnot within the scope of Article 14 (1) (g). The Petitioner's right tocarry on that business-elsewhere was not proved to have beenaffected, but I express- no opinion on the question whether forthat reason too a violation of the Article .14 (1) (g) has not beenestablished.
The decisions cited (1). (2)' indicate that the nature of the.remedies available for the wrongful disconnection- of- anelectricity supply are clear (see’also David v. Abdul Cader (3) and
Piyatilake v. Vincent Pandita (Silva, J.)109
Corea v. U.C. Kotte (4). In making this application under Article.126 the Petitioner has misconceived hi's remedy. In thecircumstances, I dismiss the Petitioner's application with costsfixed in a. sum of Rs. 750.
Seneviratne, J.. — I agree.
Amerasinghe, J.. — I agree.
NANDASIRI v. G. M. S. de SILVA CHAIRMAL U. C. AMBALANGODA & ANOTHER