Sri Lanka Law Reports
(1998) 1 Sri LR.
v.AKMEEMANA PRADESHIYA SABHA AND OTHERS
SUPREME COURTAMERASINGHE, J.,
S.C. APPLICATION NO. 594/96/FRSEPTEMBER 15. 1997.
Fundamental Rights – Article 14 (1)(g) of the Constitution – National Environmental,Act, Nos. 47 of 1980 & 56 of 1988 ss. 23A, 238, 23D, 23E and 26 – NationalEnvironmental (Protection & Quality) Regulations No. 1 of 1990 Reg. 2 & 10- Right to cancel Enviroment Protection Licence – Noise pollution and Dustpollution – Right to hearing before cancellation – Infringement only when theoccupation, business or trade is lawful and not when it is unlawful – Failure tocomply with conditions of licence – Allegation of political motives.
The son of the petitioner on October 26, 1995, applied for permission to set upa metal crushing operation at Kalahe. This was refused on July 08, 1996, thepetitioner sought permission for setting up metal crushing operation on a land,some 25 metres away from the first taken on lease by his son. The CentralEnvironmental Authority (CEA) inspected the land and by letter dated July 08,1996, addressed to the Chairman (2nd respondent) of the Pradeshiya Sabhagranted permission. On July 17, 1996, the petitioner submitted an applicationto the Pradeshiya Sabha for an Environmental Protection Licence and paid theprescribed inspection fees. After the site was inspected an EnvironmentalProtection Licence was issued on July 24, 1996, to the petitioner. The petitionercommenced operations on July 25, 1996. On July 27, 1996, the Chairman (2ndrespondent) informed the petitioner that the 3rd respondent Hon. Richard Pathirana,Minister of Education' and Higher Education had objected and found fault withhim for permitting the setting-up of the metal crushing operation. Two Police officersalso visited the petitioner and directed him to stop work. The 3rd respondentMinister in his affidavit stated he only asked the Chairman 2nd respondent tolook into the grievance of the respondents. He did not ask the 2nd respondentto cancel the licence and he was not responsible for what the Police did. TheChairman 2nd respondent in his affidavit stated a public petition had been handedto him and about 100 residents had gathered round the Sabha premises andprotested and the Police had to be brought in to maintain law and order. Someof the residents handed over a petition and on this the Environment officers ofthe Pradeshiya Sabha carried out a site inspection. They found the petitioner hadcommenced operations without obtaining a Trade Licence which was one of theconditions. The importance of the Trade Licence is that it is issued only if there
Jayawardena v. Akmeemana Pradeshiya Sabha and Others 317
is a report from the Public Health office. Further the conditions for minimisingnoise and dust pollution had not been complied with. On July 27, 1996, theChairman wrote to the petitioner cancelling the licence. At the Chairman's request,the Commissioner of Local Government had after inspection advised against theissue of an Environmental Protection Licence.
The Akmeemana Pradeshiya Sabha was exercising power, duties and functionsof the Central Environmental Authority under delegation, in terms of section 26of the National Environmental AcL
The emission of dust and noise from the metal crushing operation waslawful if only such operation was licenced. A licence was issued to thepetitioner but it was subject to specified conditions. A person who doesnot comply with the conditions of a licence, acts as if he had no licence.Therefore the petitioner's occupation, business or enterprise was unlawfulin terms of section 23A read with section 23B of the National EnvironmentalAct.
The petitioner acted in violation of the conditions subject to which he waspermitted to carry on operations and the Authority was entitled to cancelthe licence.
The air pollution and noise pollution altered the receiving environment bymaking it less conducive to public safety and health. The strong protestof the affected community underscored the urgency to take remedial action.In the circumstances the Akmeemana Pradeshiya Sabha and its Chairmanwere entitled to use the powers given to them by section 23D of the NationalEnvironmental Act and the proviso to Regulation 10 of the NationalEnvironmental (Protection & Quality) Regulations No. 1 of 1990 to forthwithissue an order cancelling the licence rather than affording the petitioneran opportunity of showing cause why the licence should not be cancelled.
The allegation that the Pradeshiya Sabha failed to act in accordance withthe law and were acting in arbitrary capricious and mala fide manner atthe instigation of the 3rd respondent Minister fails.
The allegation that the authority was moved by the political ulteriorconsideration of ill will to the petitioner and his family to cancel the licencecannot be sustained.
APPLICATION for relief for infringement of fundamental rights guaranteed underArticle 14 (1) (g) of the Constitution.
T. Marapana, P.C with Nalin Ladduwahetty, Jayantha Fernando and DhammikaD. Yapa for petitioner.
Lalanath de Silva with Mihiri Gunawardene for the 1st and 2nd respondents.
Sri Lanka Law Reports
(1998) 1 Sri LR.
E. D. Wickramanayake with A. W. Yoosuf for the 3rd respondent.
N. Pulle, State Counsel for the Attorney-General.
Cur. adv. vult.
September 24, 1997.
The petitioner was granted leave to proceed with his application forthe alleged infringement of Articles 12 (1) and 14 (1) (g) of theConstitution.
On 26 October, 1995, Ravi Jayewardena, the son of the petitionerapplied for permission to set up a metal crushing operation at Kalahe.On 21 November, 1995, the Central Environmental Authority, afterinvestigation, advised the Chairman of the Akmeemana PradeshiyaSabha that due to noise and dust pollution which was likely to affectthe occupants of the several houses situated close to the proposedsite of the operation, permission to set up the proposed operationwas refused. On 10 April, 1996, Ravi Jayewardena leased a land of14.9 perches in extent situated some twenty-five metres from the siteon which he had earlier intended to set up the metal crushing operationto enable his father, the petitioner, to set up a metal crushing operationon the leased land. The petitioner submitted an application on 25 April,1996, to the Central Environmental Authority (CEA) and paid theinspection fee. Officers of the CEA inspected the proposed site andby its letter dated 8 July, 1996, addressed to the 2nd respondent -the Chairman of the Akmeemana Pradeshiya Sabha – granted per-mission for the proposed metal crushing operation. A copy of thatletter was sent to the petitioner. On 17 July, 1996, the petitionersubmitted an application to the Akmeemana Pradeshiya Sabha – the1st respondent – for an Environmental Protection Licence and paidthe prescribed inspection fees. Thereafter three officials of thePradeshiya Sabha, including the 2nd respondent and two Environ-ment Officers visited the site and on 24 July, 1996, the PradeshiyaSabha issued the Environmental Protection Licence. The petitionercommenced operations on 25 July, 1996.
On 27 July, 1996, the 2nd respondent informed the petitioner thathe had received a telephone call from the 3rd respondent – The Hon.Richard Pathirana, Minister of Education and Higher Education.
Jayawardena v. Akmeemana Pradeshiya Sabha
and Others (Amerasinghe, J.)
According to the petitioner the Honourable Minister had told the 2ndrespondent that he objected to the petitioner being allowed to conducthis business and had found fault with him for permitting the petitionerto set up the metal crushing operation. Two police officers called onthe petitioner and requested him to stop his operations. Accordingto the petitioner the Honourable Minister had telephoned the Officer-in-Charge of the Habaraduwa Police Station and instructed him tostop the petitioner's metal crushing operations. The Honourable Ministeradmits that he did telephone the 2nd respondent and asked him tolook into representations made to him that noise and dust pollutionresulting from the operation of the metal crusher would adversely affectthe lives of the residents in the area, but denies any other involvement.The 2nd respondent in his affidavit states that the 3rd respondentdid not ask him to cancel the licence but requested him "to look intothe grievances of the residents whom he said he had seen andcomplained about the metal crusher". I have no hesitation in acceptingthe evidence of the 3rd respondent. He was the Member of Parliamentof the area and had every right and indeed a duty to require the2nd respondent to look into the complaints made by his constituents.He was not responsible for the action taken by the 2nd respondentor by the police and I therefore declare that the 3rd respondent didnot violate any of the petitioner's fundamental rights.
The manner in which the operations were brought to a halt isexplained in paragraph 11 of the affidavit of the Chairman of thePradeshiya Sabha dated 22 November, 1996: "… A public petitionagainst the construction of the metal crusher was handed over tome by a large number of residents in the area on 26.07.1996. . . On 27.07.1996 over 100 residents from around the petitioner'ssite gathered at the Pradeshiya Sabha premises, surrounded it andprotested strongly against the authorization of the metal crusher. Inorder to maintain law and order. I requested the Officer-in-Chargeof the Habaraduwa Police Station – the 4th respondent – to takesteps to stop the activities of the said metal crusher temporarily. Someof the residents who handed over the petition have made severalcomplaints to the police on the said metal crusher".
Upon receipt of the petition the Environment Officers of thePradeshiya Sabha carried out a site inspection on 26 July, 1996. Itwas found that the petitioner had commenced operations withoutobtaining a Trade Licence as he was obliged to do by law and the
Sri Lanka Law Reports
(1998) 1 Sri LR.
terms of the letter of approval issued by the Central EnvironmentalAuthority on 8 July, 1996 and the terms of the licence issued by thePradeshiya Sabha on 24 July, 1996. The importance of obtaining aTrade Licence before the commencement of operations is that sucha Licence is issued only if there is a report from a Public HealthOfficer in terms of the form printed behind the application for theLicence with regard to a proposed undertaking. At the time of thecommencement of the petitioner's operations, there was no such reportyet called for by the Pradeshiya Sabha with regard to the petitioner’sapplication which appears to have been dated the 25th of July, 1996:It seems the date was altered. The receipt for the payment of theTrade Licence Fee is dated 31 July, 1996. Additionally, the conditionsstipulated in the letter of recommendation of the Central EnvironmentalAuthority and in the Environmental Protection Licence aimed atpreventing or minimizing noise and dust pollution had not been compliedwith prior to the commencement of the operations. On 27 July, 1996,the 2nd respondent wrote to the petitioner cancelling the EnvironmentalProtection Licence issued by him on 24 July, 1996. On 1 August,1996,the 2nd respondent requested the Commissioner of Local Governmentto carry out a site inspection. The Commissioner of Local Governmentin his letter dated 9 September, 1996, advised against the issue ofan Environmental Protection Licence stating that the location wasunsuitable for a metal crushing operation.
In terms of section 23 A of the National Environmental Act Nos.47 of 1980 & 56 of 1988 "no person shall discharge, deposit or emitwaste into the environment which will cause pollution except (a) underthe authority of a licence issued by the Authority; and (b) in accordancewith such standards and other criteria as may be prescribed underthis Act". Regulation 2 of the National Environmental (Protection &Quality) Regulations No. 1 of 1990 makes it clear that "pollution"includes "noise pollution". Section 23 B (2) states, inter alia, that everysuch licence "shall be subject to such terms, conditions and standardsas may be prescribed". Section 23 D states: "Where a licence hasbeen issued to any person . . . and such person acts in violationof any of the terms, standards and conditions of the licence . . .theAuthority may by order . . . cancel such licence". Any person whois aggrieved by such an order may appeal against such cancellationto the Secretary to the Ministry, (section 23 E). Regulation 10 statesthat "The Authority may, before issuing an order . . . cancelling alicence under section 23 D of the Act give the holder of the licence
Jayawardena v. Akmeemana Pradeshiya Sabha
and Others (Amerasinghe, J.)
an opportunity to show cause why such order should not be issued.Provided that, where, since the issue of the licence, the receivingenvironment has been altered or changed due to natural factors orotherwise or where continued discharge, deposition or emissionof waste into the environment under the licence will or could affectany beneficial use adversely, the Authority shall forthwith issue anorder suspending the licence for a period to be specified in the orderor cancel such licence".
It was not in dispute that the Akmeemana Pradeshiya Sabhawas exercising the powers, duties and functions of the CentralEnvironmental Authority under delegation in terms of section 26 ofthe National Environmental Act.
Article 14 (1) (g) of the Constitution declares and recognizes theright of every citizen to the freedom to engage by himself or inassociation with others in any lawful occupation, profession, trade,business or enterprise. (The emphasis is mine). The emission of dustand noise from the metal crushing operation was lawful only if suchoperation was licensed. A licence was issued to the petitioner: butit was subject to specified conditions. In my view a person who doesnot comply with the conditions of a licence, acts as if he had nolicence, for the licence would not have been issued except on thebasis that the conditions were complied with. In the circumstances,the petitioner's occupation, business or enterprise was unlawful interms of section 23 A read with section 23 B of the NationalEnvironmental Act and he cannot complain that he had any right tocarry on such an activity. I therefore declare that Article 14 (1) (g)was not violated.
The petitioner acted in violation of the conditions subject to whichhe was permitted to commence and carry on operations and theAuthority was entitled in law to cancel the licence. The Authority mayhave given the petitioner an opportunity of showing cause why hislicence should not be cancelled; however, in my view, by his failureto comply with the conditions of the licence – the conditions on thebasis of which the Central Environmental Authority authorized thePradeshiya Sabha to issue the licence – the petitioner's metal crushingoperation by the noise it created caused at least irritation; bydischarging dust it brought about an undesirable change in thecharacteristics of the air which could adversely affect the inhabitants
Sri Lanka Law Reports
(1998) 1 Sri LR.
of the neighbourhood. The air pollution and noise pollution altered thereceiving environment and adversely affected the beneficial use of theenvironment by making it less conducive to public safety and health.The strong protests of the affected community underscored the ur-gency to take immediate remedial action. In the cricumstances, in myview the Akmeemana Pradeshiya Sabha and its Chairman, the 1stand 2nd respondents, were entitled to use the powers given to themby section 23 D of the National Environmental Act and the provisoto Regulation 10 of the National Environmental (Protection & Quality)Regulations No. 1 of 1990 to forthwith issue an order cancellingthe licence rather than first affording the petitioner an opportunity ofshowing cause why the licence should not be cancelled.
I reject the allegation that the 1st and 2nd respondents had failedto act in accordance with the law and that they were acting in anarbitrary, capricious and mala fide manner at the instigation of the3rd respondent. The petitioner alleged that the 3rd respondent wasnot favourably disposed to the petitioner and his family because hisson had "campaigned vigorously" for a Member of Parliament electedfrom a rival political party – the U.N.P. The 3rd respondent in hisaffidavit states that he was aware that the petitioner is a supporterof the U.N.P, but adds that "until reading this petition, I believed thatthe petitioner's son .. was a staunch supporter of the Sri Lanka
Freedom Party as he represented himself to be and acted as thoughhe was such a supporter". The petitioner's son was issued a licenceby the same Pradeshiya Sabha to operate a saw mill and thisis inconsistent with the petitioner's suggestion that the authorityconcerned was moved by the alleged ulterior consideration of ill willto the petitioner and his family to cancel the licence issued to thepetitioner. I have already explained why the 3rd respondent cannotbe said to have been instrumental in having the licence cancelled.
I have also explained why it was lawful for the 1st and 2ndrespondents to cancel the licence. In the circumstances, it has notbeen established that the 1st and 2nd respondents either acted inan unlawfully discriminatory manner or that they transgressed thepetitioner's right to equality before the law and equal protection ofthe law declared and recognized by Article 12 of the Constitution.
For the reasons stated in my judgment I declare that Articles 12and 14 (1) (g) of the Constitution have not been violated by the1st, 2nd, 3rd and 4th respondents and make order dismissing theapplication.
The Attorney-General v. Ruberoe and Others
Learned counsel for the 1st and 2nd respondents properlyoonceded that the Central Environmental Authority, who is not a partyto these proceedings, but on whose instructions the Pradeshiya Sabhaacted, had failed to act in accordance with the prescribed guidelines.In the circumstances the parties shall bear their own costs.
WIJETUNGA, J. – I agree.
GUNAWARDENA, J. – I agree.
JAYAWARDENA v. AKMEEMANA PRADESHIYA SABHA AND OTHERS