033-SLLR-SLLR-2009-V-1-AZATH-SALLEY-vs.-COLOMBO-MUNICIPAL-COUNCIL-AND-OTHERS.pdf
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AZATH SALLEY VS COLOMBO MUNICIPAL COUNCILAND OTHERS
SUPREME COURT
DR. SHIRANI BANDARANAYAKE, J
AMARATUNGA, J AND
BALAPATABENDI, J
S. C. (F. R.) APPLICATION: 252/2007
JULY 1st 2008
Fundamental Rights-Constitution-Article 3,17,12(1), 28(b)-Violationof fundamental rights guaranteed under Article 12(1) of the Constitu-tion – Equality before law and equal protection of the law to all persons-Article 126(2) of the Constitution – The Judicial review of violations offundamental rights by executive or administrative action – Article 17 ofthe Constitution – Remedy for the infringement of fundamental rightsby executive action. – liberal interpretation? – Entrenched provisions inthe Constitution.
The petitioner, a former Deputy Mayor of the Colombo MunicipalCouncil and a rate payer to the Colombo Municipal Council complainedof infringement of his fundamental rights and of the residents of theColombo Municipality area guaranteed in terms of Article 12(1) of theConstitution due to the failure of the respondents to remove a largenumber of unauthorized hoardings erected, and granting of purport-ed approval for the erections of hoardings and the display of adver-tisements, in violation of the By – laws and guidelines of the ColomboMunicipal Council.
Held
Article 126(2) of the Constitution must be given a broad and expan-sive interpretation keeping in line with the development that hadtaken place in the arena of Public Law.
Per Dr. Bandaranayake, J. –
“A strict interpretation of Article 126(2) of our Constitutionwould no doubt indicate that the judicial review of violationsof fundamental rights by executive or administrative action isrestricted, and there is no locus standi for an outsider to obtain
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relief in terms of the Articles of the Constitution. Such a strictinterpretation would undoubtedly restrict the applicability of thefundamental rights jurisdiction, and in my view, time is oppor-tune to forge and adopt a liberal interpretation for the purpose ofmaking fundamental rights more meaningful for the majority ofthe people.”
As Article 126(2) of the Constitution refers to the infringement ofa fundamental right of a “person’, it must be read with Article 17of the Constitution, which is an entrenched provision and dealswith the remedy for the infringement of fundamental rights byexecutive action.
The concept of public trust, is an accepted doctrine that theresources of the country belong to the people; Sri Lanka’ssovereignty is in the people in terms of Article 3 of the Constitutionand is inalienable and includes the powers of the government,fundamental rights and the franchise, and the people havecommitted the care and preservation of their resources to theorgans of the State, which are their guardians or trustees.
It is the fundamental duty of the 1st to 5th respondents to preserveand protect public property and combat misuse and waste ofpublic property as specified in Article 28(d) of the Constitution.
The failure of the 1st to 5th respondents to remove unauthorizedhoardings erected and granting of purported approval for theerection of hoardings within the city limits of the lsl respondentcouncil, contrary to applicable by-laws and guidelines hadinfringed the fundamental rights of the petitioner’s and of theresidents’ of the Colombo Municipal Council area guaranteed interms of Article 12(1) of the Constitution.
Conditions applicable to hoardings situated in public placeswould be applicable to hoardings erected on private places if suchhoardings are fronting the public street and are exposed to publicview.
Failure to remove unauthorized hoardings and granting approvalwithout giving due consideration to the by-laws and guidelineswhich were applicable at the time material had constituted aninfringement of the fundamental rights of the petitioner and theresidents of the Colombo Municipal Council area by ‘executive
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and administrative action’ within the meaning of Article 126 of theConstitution. Accordingly, 1** to 5th respondents are responsiblefor the said violation of the fundamental rights of the petitioner’sand the residents’ of the Colombo Municipal area by ‘executive andadministrative action’ guaranteed in terms of Article 12(1) of theConstitution.
Cases referred to:
Bandhua Mukti Vs. Union of India, AIR (1984) S. C. 802
Maharajah Singh Vs. Uttara Pradesh, AIR (1976) S. C. 2602.
S. P. Gupta Vs. Union of India, AIR (1982) S. C. 149
People’s Union for Democratic Rights Vs. Union of India, AIR (1982)S. C. 617
R Vs. Inland Revenue Commissioner’s ex-parte National Federationof Self Employment and Small Business Ltd. (1982) A. C. 617
R. Vs. Greater London Council ex-parte Blackburn (1976) 1 W. L. R.550
R vs. Secretary of State for Foreign and Commonwealth AffairsEx-parte Rees – Mogg, (1994) Q. B. 552
Somawathie Vs. Weerasinghe and others, (1990) 2 SLR 121
Bulankulama and others Vs. Secretary, Ministry of IndustrialDevelopment and others (2000) 3 Sri L. R. 243
Sriyani Silva Vs. Chanakalddamalgoda and others, (2003) 1 SLR 14and S. C. (Application) No. 471/2000 – S. C. minutes of 8.8.2002
Yabbicom Vs. King (1899) 1 Q. B. 444
E. P. Royappa Vs. State of Tamil Nadu, (1974) AIR 555
Westminister Corporation Vs. London & North Western Railway(1905) A. C. 426
Breen Vs. Amalgamated Engineering Union, (1971) 2 Q. B. 175
Padfield Vs. Minister of Agriculture, Fisheries and Food, (1968) A. C.997
Saghir Ahmad Vs. The State of Uttar Pradesh, (1955) S. C. R. 707
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C.S.S. Motor Services Vs. State of Madras, (1952) 2 M. L. J. 894
Links Advertisers and Business Promoters Vs. Commissioner,Corporation of City ofBanga lore (1977) A. 1. R. 1977 S. C. 1646
APPLICATION complaining of infringement of the fundamental rights.
J. C. WeKamuna with Mudurange Ratnayake for PetitionerUditha Egalahewa with Ranga Dayananda for ln to 5th Respondents.M. M. Mohideen for 6th and 7^ Respondents.
Cur.adv.vult.
March 04, 2009
DR. SHIRANI BANDARANAYAKE, J.
The petitioner, a former Deputy Mayor of the ColomboMunicipal Council and a rate-payer to the Colombo MunicipalCouncil (herenafter referred to as the CMC) had made thisapplication on his own behalf and in the public interest ofthe residents of the CMC area, that due to the failure of therespondents to remove a large number of unauthorized hoard-ings erected, granting of purported approval for the erectionof hoardings and the display of advertisements, in violationof the By-laws and guidelines of the CMC, the 1*' to 5threspondents have violated the fundamental rights of thepetitioner and the residents of the Colombo Municipality area,guaranteed in terms of Article 12(1) of the Constitution, forwhich this Court had granted leave to proceed.
The petitioner’s case, as submitted by him, albeit brief isas follows:
Displaying of Advertisements within the ColomboMunicipality is regulated by the Advertisement, Decorationand Posters by – law 1991 of the CMC. Section 2 of the saidBy-law, stated that,
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“No one shall display any advertisement or cause anyadvertisement to be displayed so as to be visible from anystreet, road, canal, lake, sea or the sky except under theauthority of a license issued in that behalf.”
Section 2 of the said by – law is subject to the exceptionsset out in section 3 of the by-law, which deals with the non- commercial advertisements, notices, etc. In terms of thesaid by -laws the 3rd respondent was vested with powers toentertain and approve applications and to issue licenses fordisplaying of advertisements.
In 2005, the 2nd respondent’s predecessor, the 3rdrespondent and the petitioner in his capacity as the thenDeputy Mayor had taken a decision to allow the MunicipalEngineers to decide the locations for hoardings. It was alsodecided to remove all unauthorized hoardings and in fact 386such hoardings were demolished in 2005.
During that period, as the CMC was in the processof identifying unauthorized hoardings for the purpose ofremoval, several cases were filed in the Court of Appeal andin one application, the matter was settled on the basis thatthe advertiser would be allowed to display the advertisementsuntil 31.12.2005, provided any arrears of payment due to theCMC was paid (P3). Thereafter, several fundamental rightsapplications were filed in this Court challenging inter alia,the authority of the 1st respondent to remove hoardings. Inthe mean time CMC had introduced guidelines in respect ofhoardings on which this Court had made order permittingCMC to remove hoardings, which were in violation of the saidguidelines (P4 and P5). Moreover, when these applicationswere considered on 18.09.2006, learned Counsel for thepetitioners in those applications had moved to withdraw them,considering the guidelines that have been formulated. It hadalso been submitted to Court on behalf of the respondents,
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in the aforementioned matters, that steps would be taken inrespect of hoardings, which were not in conformity with theby-laws of the CMC and the guidelines, to be removed (P5a).Accordingly, the said applications were dismissed by thisCourt.
Irrespective of the aforementioned orders made by Courtand the undertaking given by CMC, the petitioner alleged thatthe Municipality had failed to take effective steps whatsoeverto remove unauthorized or illegal hoardings displayed in theColombo Municipality area.
Table I
Guidelines -Clause 1 The maximum size of a hoarding shouldbe 20 feet x 10 feet.
There are several over-sized hoardings atthe Maradana Junction and the GreenPath Junction. Further the recently erectedlarge hoarding opposite Elphinston Theatreseriously undermines the scenic value of thehistoricalbuildingsattheMaradanaJunction.
Guidelines -Clause 2 Hoardings should only be erected onuni-poles (single poles).
The majority of the hoardings are erectedon two or more poles.
Guidelines -Clause 3 No hoarding should be erected within roadreservations of Independent Mawatha,Bauddhaloka Mawatha, Ananda Cooma-raswamy Mawatha and Galle Face CentreRoad
There are a large number of hoardingserected on the said roads.
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Guidelines -Clause 4 No hoarding should be erected at theIndependent Square, frontage of SportsMinistry Grounds, alongside cemeteriesand Viharamahadevi Park
There are several hoardings alongside theBorella Public Cemetaiy.
Guidelines -Clause 6 No hoarding should be erected on propertyfrontage of religious places of worship,schools, universities, other educationalinstitutions, buildings of nationalimportance, places of visual quality anddiplomatic missions.
There is a hoarding at Horton Place -Kynsey Road Junction outside LibyanEmbassy. On Reid Avenue there are eight (8)hoardings alongside the property frontageof the University of Colombo. There areseveral hoardings alongside the propertyfrontage of Devi Balika Vidyalaya, St.Bridget’s Convent and Royal College. Thereare hoardings on the property frontage ofthe Church and the Mosque in CinnamonGardens.
Guidelines -Clause 7 No hoarding should be erected alongsidesites of monuments within 10 metersthereof obliterating such monuments.
There are hoardings in violation of the saidClause 7 on either side of the statue of Hon.Dharmasiri Senanayake at the Devi BalikaVidyalaya Junction and near the statue ofHon. Lalith Athulathmudali at the RoyalCollege roundabout..
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Guidelines -Clause 8 No hoarding should be erected violatingthe rights of property owners to enjoyreasonable property frontage, ventilationand natural light.
Hoardings have been erected in violation ofthe said Clause 8
Guidelines -Clause 9 No hoarding should be erected on top ofanother hoarding.
Hoardings have been erected in violation ofthe said Clause 9
Guidelines -Clause 10 Only one hoarding should be allowed todisplay within 100 meters from the centreof an intersection with three arms andwith traffic signals. Only three (3)hoardings shall be allowed to displaywithin 100 meters from the centre ofan intersection with more than three (3)arms with traffic signals. This regulationshall be applicable to roundaboutsalso. Such advertisements shall not beilluminated and shall not be backed by afront of a traffic signal head.
There are hoardings at almost all theroundabouts and traffic signal heads in theColombo city.
Guidelines -Clause 11 No hoarding should be erected withinroundabouts, traffic diversion islands,public parks and centre median.
Hoardings have been erected at many placesviolating the said Clause 11
Guidelines -Clause 12 No hoarding should be erected withoutdisplaying municipal reference number,contact telephone number of applicantof advertisement and the phrase citycomplaints HYPERLINK "http://www.cmc.Vk" www.cmc.Vk on the right
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hand bottom comer of the front faceof the advertisement. This informationof the advertisement should be clearlyvisible and readable to the public. Thisinformation should be written on eitherside of the advertisement in case ofdouble side display. Only referencenumber of the advertisement shall bewritten on a 3 feet x 2 feet directionalsignboard.
Almost all the hoardings are in violation ofthe said Clause 12.
Guidelines -Clause 13 No hoarding should be erected on a land
or a property maintained by the council
in the following manner-
fa) parallel to a property frontage;
at an angle less than 45 degrees to- property frontage;
with less than 2.5 meters groundclearance;
within three meters of vehicularaccess to premises;
overhanging a carriageway;
where the width of the foot pathis less than or equal to 1.0 meter.Where the width of the foot pathis more than 1 meter, any part orcolumn of the structure shall notlie within the effective area of footpath;
on electricity posts and tele-com-munication posts.
Hoardings have been erected in violation of
the said clause 13.
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Guidelines -Clause 14 A cluster of hoardings should not exceedthree numbers. Gap between two hoard-ings in a cluster forming a row shall beone meter. Distance between two free-standing hoardings shall not be less than10 meters. Distance between two clustersof hoardings shall not be less than 20meters.
Hoardings have been erected in violation ofthe said Clause 14.
Guidelines -Clause 15 Visuals displayed shall be approved bythe Commissioner. No visual shall displaymaterial of disrespect to religiousbeliefs, depicting nudity, seminudity,cruelty of any nature including animals.
Hoardings have been erected in violationof the said Clause 15. (P6(a), P6(b), P6(c),P6(d), P6(e), P6(f) and P6(g)
Accordingly it was submitted that most of the new hoard-ings that have been approved do not display certificationwith regard to structure safety and suitability, thus violatingClause 16 of the said guidelines and as a result, when therewas heavy rain in the city of Colombo recently, nearly 40 suchhoardings collapsed causing damage to property. The peti-tioner alleged that some of the hoardings have been erectedin a structurally hazardous and unsafe manner and citedas an example the hoarding opposite the Elphiston Theatreat the Maradana Junction (P6(a)), which has not only beenerected in violation of the said By-law and the guidelines, butalso causing structural damage to the bridge and as for thepurpose of the erection of the said hoarding the ground hadbeen dug and a large number of steel poles have been fixed tothe ground on concrete slabs.
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It was also submitted that several newspapers havecarried articles bringing to light the issue of hoardings beingindiscriminately erected on roads and streets being a publicnuisance and also impacting on the aesthetic impression ofthe city of Colombo (P7).
Several residents in the city of Colombo have made com-plaints to the Mayor of Colombo regarding the hoardingsand the University of Colombo too has complained to the 3rdrespondent with regard to such hoardings (P8 (a), P8 (b) andP8 (c)).
The petitioner also alleged that aside from the arbitrarygranting of approval of hoardings in violation of the law, asthe 1st and/or 2nd and/or 3rd respondents have failed to evolvea transparent and an accountable mechanism of receivingrevenue by advertisement hoardings, the CMC has lost anenormous amount of revenue. Such action had led to corruptpractices particularly in the process of approving hoardingsas there is a greater demand for advertising at key locationsin the city of Colombo. According to the petitioner if hoard-ings were auctioned, a single hoarding in the city of Colombo,being the commercial capital of the country, would havefetched an annual income of Rs. 500,000/- to Rs. 1,000,000/-whereas most of the hoardings have currently been li-censed for an annual fee, which is as unrealistically low asRs. 20,000/-. The petitioner cited the Road DevelopmentAuthority which had adopted a competitive bidding processby way of auction in awarding hoardings that had been ableto collect as revenue the true market value of such hoardings(P9(a), P9(b), P9(c), P9(d) and P9(e)).
The petitioner therefore claimed that the failure of the 1stto 5th respondents to remove a large number of unauthorizedhoardings erected in the city of Colombo and their grantingof purported approval for the erection of said hoardings is
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illegal, irrational, contrary to by -laws of the CMC, andAdvertisement guidelines and constituted an infringement ofthe fundamental rights of the petitioner’s and the residents’of the CMC area guaranteed in terms of Article 12(1) of theConstitution.
The petitioner had prayed from this Court to direct, interalia, the respondents to remove all unauthorized hoardings,strictly enforce the said by-laws and guidelines and grant aninterim stay order restraining the respondents from grantingapproval for new advertising hoardings.
Prior to this matter being taken up for support for in-terim relief as prayed for by the petitioner, the respondentshad filed their objections. After considering the submissionsby both parties, this Court issued a limited interim order tothe effect that the 1st respondent council to consider all theapplications made for erection of hoardings for advertise-ments in terms of their guidelines (P4). Thereafter the saidinterim order was extended until the final hearing and deter-mination of this application with the consent of the ls< to 5threspondents.
Learned Counsel for the 1st to 5th respondents took upthe objection that the petitioner did not have locus standi tomake this application as he had failed to reveal as to how hisfundamental rights were violated.
Learned Counsel for the petitioner contended that thepetitioner, a rate payer and a resident of the CMC area hadfiled this case in the ‘public interest’ seeking relief that theguidelines governing hoardings would be implemented whileprotecting the revenue of the Council.
The fundamental rights jurisdiction and its exercise isspelt out in Article 126 of the Constitution. Article 126(2) of theConstitution, which refers to the exercise of the fundamental
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rights, clearly states that a person, whose fundamental righthas been infringed or is about to be infringed by executive oradministrative action, may himself or by an Attomey-at-Lawon his behalf, apply to the Supreme Court by way of a petitionpraying for relief. The said Article reads as follows:
"Where any person alleges that any such fundamentalright or language right relating to such person hasbeen infringed or is about to be infringed by executiveor administrative action, he may himself or by anattomey-at-law on his behalf, within one month there-of, in accordance with such rules of Court as may bein force, apply to the Supreme Court by way of petitionin writing addressed to such Court praying for relief orredress in respect of such infringement. …”
(emphasis added).
Thus as stated earlier, our Constitution had made provi-sion only for the person, who has suffered injury by reasonof the violation of his fundamental right or for an Attomey-at-Law, on his behalf, to be entitled to seek redress from theSupreme Court in terms of the fundamental rights jurisdic-tion under Article 126(2) of the Constitution.
A strict interpretation of Article 126(2) of our Constitutionwould no doubt indicate that the judicial review of violationsof fundamental rights by executive or administrative action isrestricted, and that there is no locus standi for an outsider toobtain relief in terms of the said Article of the Constitution.Such a strict interpretation would undoubtedly restrict theapplicability of the fundamental rights jurisdiction, and inmy view, time is opportune to forge and adopt a liberal inter-pretation for the purpose of making fundamental rights moremeaningful for the majority of the people. As rightly point-ed out by Bhagwati, J. (as he then was), in Bandhua MuktiMorcha v. Union of India,™
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“But if we want the fundamental rights to become a livingreality and the Supreme Court to become a real Sentinelon the qui vive, we must free ourselves from the shacklesof outdated and out mode assumptions and bring to bearon the subject fresh outlook and original unconventionalthinking.”
This position was observed by the Supreme Court of In-dia which had been broadening the applicability of the con-cept of locus standi and was clearly laid down in MaharajahSingh v. Uttara PradesH2) which stated that,
“Where a wrong against community interest is done, nohocus standi’ will not always be a plea to non-suit aninterested public body chasing the wrong doer in court.
. . . Locus standi has a larger ambit in current legalsementics than the accepted individualistic jurispru-dence of old.”
A few year later in S. P. Gupta v. Union of India™, theIndian Supreme Court had determined that any member ofthe public can maintain an application for an appropriatedirection or order or writ and had stated that,
“Where a legal wrong or a legal injury is caused to a per-son or to a determinate class of persons by reason of vio-lation of any constitutional or legal right and such personor determinate class of persons is by reason of poverty,helplessness or disability or socially or economically dis-advantaged position, unable to approach the Court forrelief, any member of the public can maintain am appli-cation for an appropriate direction or order or writ in theHigh Court under Article 226 or in case of breach of anyfundamental right to this Court under Article 32.”
An examination of the Indian Case Law clearly indicatesthat a petition in terms of Article 32 of the Indian Constitu-
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tion can be filed only by a public spirited individual, whoacts in a bona fide manner, without personal gain or profit orout of political motivation in cases, where there has been abreach of a public duty or breach of a constitutional provisioncausing injury to the general public.
A careful examination of the case law indicates that pub-lic interest litigation is a special juridical device’ that couldbe used to settle disputes in contemporary society. It hasbeen introduced by Justice Bhagwati (as he then was), as ‘astrategic aim of the legal-aid movement, which was intendedto bring justice within the reach of the poor masses’ and itspurpose is to promote and vindicate public interest, whichdemands that violations of constitutional or legal rights ofa large number of people should not go unnoticed and unredressed (Peoples’ Union for Democratic Rights v Union ofIndia[4).
It is not disputed that Article 126(2) of our Constitutioncannot be compared with Article 32 and/or 226 of the IndianConstitution. However, it also cannot be disputed that theconcept of locus standi had faced changes in the recent pastas measures were taken to expand its applicability.
This broadening of the concept of locus standi could beeven seen in the English Courts, where steps have been takento relax the rules applicable to standing in recent years. Thesaid ‘change in legal policy’ came into being in the well knowncase, popularly known as the Inland Revenue CommissionersCase (R v. Inland Revenue Commissioners’ ex-parte NationalFederation of Self Employment and Small Businesses Ltd.l5KApproving the concept that in suitable cases, a citi-zen’s action or actio popularis, must be allowed, LordDiplock in the Inland Revenue Commissioner’s casestated that,
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“It would, in my view be a grave lacuna in our systemof public law if a pressure group, like the federation, oreven a single public-spirited taxpayer, were prevented byoutdated technical rules of locus standi from bringing thematter to the attention of the court to vindicate the ruleof law and get the unlawful conduct stopped.”
Lord Diplock in Inland Revenue Commissioners’ case(supra) also referred to the words of Lord Denning M. R. in Rv. Greater London Council ex-parte Blackburn!6', where he hadstated that,
“I regard it as a matter of high constitutional prin-ciple that if there is good ground for supposing that agovernment department or a public authority istransgressing the law, or is about to transgress it, in away which offends or injures thousands of Her Majesty’ssubjects, then any one of those offended or injured candraw it to the attention of the courts of law and seek tohave the law enforced, and the court in their discretioncan grant whatever remedy is appropriate.”
These decisions clearly enumerate the new conceptadopted by English Courts on the test of standing. Theattitude of those Courts has been to consider the merits of theapplication than the standing of the applicant. Consideringthese decisions, Professor Wade (Administrative Law, 9thEdition, pp. 692-693) had succinctly spelt out the presenttrend of the English Courts in deciding the question of stand-ing, which reads as follows:
“The essence of standing, as a distinct concept, is thatan applicant with a good case on the merits may haveinsufficient interest to be allowed to pursue it. The Houseof Lords’ new criterion would seem virtually to abolishthe requirement of standing in this sense. Howeverremote the applicant’s interest, even if he is merely
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one taxpayer objecting to the assessment of another,he may still succeed if he shows a clear case ofdefault or abuse. The law will now focus upon publicpolicy rather than private interest, (emphasis added)”
The English Courts had taken a similar view in decidingcases filed in the public interest. For instance in R v. Secre-tary of State for Foreign and Commonwealth Affairs Ex-parteRees – Mogcf7) it was held that a member of the House ofLords had standing to challenge the decision of the Secretaryof State for Foreign and Commonwealth Affairs to proceed tothe ratification of the Treaty on European Union ‘because ofhis sincere concern for constitutional issues’.
The scope of Article 126(2) of our Constitution, onthe basis of the question of locus standi, was examined bythis Court in Somawathie v Weerasinghe and others!®. Inthat matter the petitioner was complaining of the violationof her husband’s fundamental rights and the alleged in-fringements including unlawful arrest, detention and as-sault, whilst he remained in police custody. In decidingthat the petitioner had no locus standi to maintain theapplication, Amerasinghe, J. pronouncing the majority view,construed the provision contained in Article 126(2) of theConstitution. According to Amerasinghe, J.,
“How should the word of this provision of the Constitutionbe construed? It should be construed according to theintent of the makers of the Constitution. Where, as in theArticle before us, the words are in themselves precise andunambiguous, and there is no absurdity, repugnance orinconsistency with the rest of the Constitution, the wordsthemselves do best declare that intention. No more canbe necessary than to expound those words in their plain,natural, ordinary, grammatical and literal sense.”
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However, Kulathunge, J., while dissentingwith the majorityopinion, expressed the view that in circumstances of gravestress or incapacity, particularly where torture resulting inpersonal injury has alleged to have been committed; next-of-kin such as a parent or the spouse should be able to apply tothis Court and this Court could entertain such an applicationnotwithstanding the failure to effect literal compliance withthe requirements of Article 126(2) of the Constitution.
The question of standing again arose in Bulankulamaand others v Secretary, Ministry of Industrial Development andothersPK In that case the representative of the Governmentand Freeport Mac Moran of USA and its officiate Imco Agricoinitiated the final drafts of the Mineral Investment Agreementand subsidiary documents in respect of a deposit of phos-phate rock at Eppawela in the Anuradhapura District. Theproposed agreement granted the Company the sole and ex-clusive right to search and explore the phosphate and otherminerals in the exploration area, to conduct test or pilot oper-ations at any location within the contract area and to developand mine under Mining Licenses any phosphate deposits (in-cluding associate minerals) found in the exploration area.
The petitioners, being residents of Eppawala engagedin cultivation and owning lands there, one of whom was theViharadhipathi of a temple, complained of infringement oftheir rights under Articles 12(1), 14(l)g and 14(l)h of theConstitution by reason of the proposed agreement. Theyrelied on the analysis of several professional experts andreports of the National Academy of Science and the NationalScience Foundation, who were of the opinion that theproposed agreement will not only be an environmentaldisaster, but also an economic disaster. The court held thatthere is a imminent infringement of the petitioners’ funda-mental rights guaranteed under Articles 12(1), 14(l)g and14(1) h of the Constitution.
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Several preliminary objections were taken at the hear-ing of that case and one of those were based on the questionof public interest litigation, where the learned Counsel forthe 5th and 7th respondents had submitted that the applica-tion should not be entertained under the provisions of theConstitution. Thus the question at issue had been whetherthe individual petitioners had standing to pursue their rightsin terms of Articles 17 and 126(1) of the Constitution andwhether they are qualified on the ground that it is publicinterest litigation. For this question Amerasinghe, J., hadanswered in the affirmative and had stated that,
“Learned Counsel for the 5th and 7th respondents submit-ted that, being an alleged ‘public interest litigation’ mat-ter, it should not be entertained under provisions of theConstitution and should be rejected. I must confess sur-prise, for the question of ‘public interest litigation’really involves questions of standing and not whetherthere is certain kind of recognized cause of action.The Court is concerned in the instant case with thecomplaints of individual petitioners. On the questionsof standing, in my view, the petitioners as individualcitizens, have a Constitutional right given by Article 17read with Articles 12 and 14 and Article 126 to be beforethis Court” (emphasis added).
The question of standing in regard to applications madeunder Article 11 of the Constitution was considered in thedecisions (application for leave to proceed and the hearing)in Sriyani Silva v Chanaka Iddamalgoda and others,10). It wasdecided by this Court that Article’ 126(2) of the Constitutionmust be interpreted broadly in order to grant constitutionalremedy expansively and that Article 17 recognizes that everyperson is entitled to make an application under Article 126 inrespect of the infringement of a fundamental right.
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As stated earlier, Article 126(2) of the Constitutionrefers to the infringement of a fundamental right of a ‘person’.Article 126 of the Constitution must be read with Article 17 ofthe Constitution, which is an entrenched provision and dealswith the remedy for the infringement of fundamental rightsby executive action. The Constitution of this Island Republicclearly stipulates that sovereignty includes fundamental rightsand it is in the People, which is inalienable. Article 4 of theConstitution deals with the exercise of sovereignty and Article4(d) clearly states that the fundamental rights, which are bythe Constitution declared and recognized, shall be respected,secured and advanced by all the organs of government. ThisArticle further stipulated that such fundamental rights ‘shallnot be abridged, restricted or denied’ to the People.
Considering the provisions contained in the Constitu-tion dealing with the fundamental rights jurisdiction and theapplicability of Article 126(2) read with Article 3,4(d) and 17, itis apparent that Article 126(2) should be interpreted broadlyand expansively. Where a person therefore complains thatthere is transgressing the law or it is about to transgress,which would offend the petitioner and several others, sucha petitioner should be allowed to bring the matter to the at-tention of this Court to vindicate the rule of law and to takemeasures to stop the said unlawful conduct. Such actionwould be for the betterment of the general public and thevery reason for the institution of such action may be in theinterest of the general public.
The petitioner as has been stated earlier is a rate payer tothe CMC, and had made this application on his behalf as wellas on behalf of the residents of the Colombo Municipal area.
On a consideration of the totality of the aforementioned,I hold that Article 126(2) of the Constitution must be given a
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broad and expansive interpretation keeping in line with thedevelopments that had taken place in the arena of Public Lawand I accordingly overrule the objection raised on the basis ofthe standing of the petitioner.
Having considered the objection raised by the learnedCounsel for the 1st to 5th respondents, let me now turn toexamine the main issues raised in this application.
The contention of the learned Counsel for the peti-tioner was that 1st and /or 2nd and/or 3rd and/or 4th and/or 5th respondents had granted approval to erect hoardingsin the CMC area in violation of the by-laws marked P2 andadvertisement guideline marked P4.
Learned Counsel for the 1st to 5th respondents submit-ted that the petitioner had relied on the purported by-lawcontained in the document marked P2, but the said by-lawis not the prevailing by-law, which regulate the displaying ofbanners, advertisements and hoardings within the CMC areaas it was never approved by the 1st respondents Council. Thecontention of the learned Counsel for the 1st to 5th respon-dents was that the applicable by-laws are the ones, whichcame into operation in 1949 and which was gazetted in theNotification No.541/17 dated 20.01.1989.
Learned Counsel for the 1st to 5th respondents furthercontended that the position taken up by the learned Coun-sel for the petitioner regarding the guidelines that they weregiven legal sanctity by the 1st respondent Council is notcorrect. His position was that the fundamental rightsapplications bearing Nos. S.C. (Application) 30-35/2006 werefiled challenging, inter alia, the applicability of the proposedguidelines at that time and the contents of the said guide-lines. The submission of the learned Counsel for the 1st to 5threspondents was that this Court had directed the 1st respon-dent Council to entertain the applications for the erection of
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hoardings, in terms of the applicable by-laws of CMC and noton the basis of the guidelines.
Since the said by-laws were outdated, this Court hadpermitted the said guidelines to be used to ascertain thehoardings that should be removed. Learned Counsel fur-ther submitted that, thereafter a set of new guidelines ap-proved by the then Commissioner was filed in Court for ap-proval and as the petitioners in the applications referred toearlier, sought to withdraw the said applications before theconclusion of the hearing, the said guidelines could not beproperly considered by this Court.
The contention of the 1st to 5th respondents therefore wasthat the by-laws, which come into' operation in 1949 andthe by-laws gazetted in Government Gazette Notification No.541/17 dated 20.01.1989 and adopted by the 1st respondentCouncil regulated the displaying of banners, advertisementsand hoardings within the Colombo Municipality area (R9 andRIO) and the question as to whether the hoardings set up atvarious locations referred to in the petition were in violationof the guidelines does not arise as the operation of the guide-lines in question had been suspended by the 3rd respondent.
Since the applicability of the guidelines has come upas the main issue in this application, I would now turn toexamine the validity of the said guidelines in question.
Considering the submissions made by the learned Coun-sel for the 1st to 5th respondent and the affidavit of the 4threspondent on behalf of himself and l9t, 3rd and 5th respon-dents, it is apparent that initially erection of hoardings withinthe Colombo Municipal area were considered in terms of theby-laws, which regulated the displaying of banners, adver-tisements and hoardings. Admittedly the said by-laws hadcome into effect in 1949 and was gazetted in the GazetteNotification dated 20.01.1989.
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Later a set of guidelines for the purpose of advertisingin Colombo had come into being to be effected fromJanuary 2006. The said guidelines (P4) contained 18 clausesand stated that the said guidelines had to be followed in con-sidering applications to obtain a license to display advertise-ments within the city of Colombo.
It is thus not disputed that a set of guidelines had beenintroduced by the 1st respondent Council and had come intobeing, with effect from January 2006. In fact the applicabilityof the said guidelines had been considered by this Courtin February 2006, when the question of removal of hoard-ings had to be examined. In that manner, the 1st respondentCounsel had informed this Court that the 1st respondentwould decide as to the hoardings that would have to beremoved on the basis of the guidelines for advertisements ofthe 1st respondent Council(P5). It is to be noted that on theday the said order was made by this Court, the Chief LegalOfficer of the 1st respondent Council was present in Courtand the order made on 01.02.2006 had stated that,
“The applications, which have already been made bythe petitioners, would be taken into consideration forthe purpose of deciding to grant formal licenses to thepetitioners in terms of the applicable by-laws.
Learned Counsel for the l8t and 3rd respondents informsCourt that after perusing the applications made by thepetitioners, the 1st respondent Council will decide as tothe hoardings that will have to be removed in terms ofthe guidelines” (emphasis added).
The order thus had referred to the applicable by-laws aswell as the guidelines, which were to be taken into account indeciding the validity of the already erected hoardings as wellto consider the applications made for the purpose of erectionof new hoardings.
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Whilst this was the position by February 2006, it appearsthat the 3rd respondent had thereafter decided to suspendthe guidelines and to draft a new set of by-laws. The 4th re-spondent in his affidavit referred to documents marked as R6and R7 and had averred to the aforesaid intention of the 3rdrespondent. These two documents are reproduced belowsince they are of importance to this application.
“Director Engineering (Projects)
Implementation of Guidelines for Hoardings inColombo
As you are aware, several cases had been filed in theSupreme Court against the Council in respect of hoard-ings. When these cases were taken up in the SupremeCourt and having heard both petitioners and respondents,Supreme Court had noticed that certain amendments ormodifications have to be made to the present guidelinesfor hoardings. Thereafter amendments and modificationswere made to the guidelines and the same was submittedto the Supreme Court, but unfortunately the petitionersconcerned withdrew those cases on 18.09.2006.
Though we have reserved our rights to implement thepresent guidelines, still I see it needs further modifica-tions and amendments.
Since this is substantial income to the Council and theinterest of the Council as well as advertisers, it is hightime for the Council to amend present advertising bylaws incorporating the present guidelines with amend-ments and modifications to suit the present economic,cultural and social status of the city in particular and thecountry in general.
In view of the above, you are requested to draft a set ofadvertisement by laws incorporating the guidelines as
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aforesaid, in consultation with Legal Officer, Director(Traffic & Designs) and Director (planning). The applica-tion of present guidelines is hereby suspended until suchtime the new by laws are framed and enacted.
Municipal Commissioner
(R6).”
The Director Engineering (Projects) by his letter dat-ed 03.10.2006 had informed the 3rd respondent, MunicipalCommissioner that he would not take into consideration theguidelines either for the new applications or for the applica-tions for the existing hoardings. He had further stated that hewould prepare the by-laws ‘leisurely in his spare times’. Thesaid letter is as follows:
“Municipal Commissioner
Implementation of Guidelines for Hoardings inColombo
This is in reference with your instructions dated
regarding the above matter.
As instructed by you, present guidelines will not be takeninto consideration. I hereby refrain from adopting guide-lines for locations of new applications and requests foradvertisements and also for existing advertisements.
Formulation of new by laws incorporating modified guide-lines is a time consuming process as many aspects suchas economic, cultural, social status of the city, identi-fication of objectionable locations, aesthetic and sce-nic beauty requirements, impact on traffic etc. shouldbe considered. On the other hand, I have to undertakethese tasks in addition to my assigned duties as DirectorEngineering (Projects). Hence I am unable to give you any
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predicted period to finalize by laws and please allow meto draft these by laws leisurely in my spare times and I
will appraise you of progress of draft by law from time totime when necessity arises. I also suggest and seek yourapproval to incorporate a new enhanced fee structure foradvertisements together with the by laws.
Director Engineering (Projects)
03.10.2006” (emphasis added) (R7).
The 4th respondent in his affidavit therefore had averredthat the question whether the hoardings set up at variouslocations and stated in paragraph 11 of the affidavit filed bythe petitioner, that the said hoardings have been set up inviolation of the guidelines does not arise since the operationof the aforesaid guidelines have been suspended by the 3rdrespondent. The contents of paragraph 11 was reproduced intabulated form and given in Table I at the commencement ofthe judgment.
On examination of the aforementioned two communica-tions between the Municipal Commissioner and the DirectorEngineering (Projects) (R6 and R8) it is abundantly clear thatat a time when this Court had recorded to the effect that,
“the guidelines in question had been approved by theChief Minister on the basis,
the specific locations would be identified where hoardingsshould be permitted;
within the specific locations where the guidelines wouldapply”
(Journal Entry dated 28.04.2006 – P10),
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and that the
“respondents would take action that has been withheldpending these applications in respect of the hoardingsthat are not compliant with by laws and guidelines andalso to recover the amounts that are due.”
(Journal Entry dated 18.09.2006-P10),
the 3rd respondent, Municipal Commissioner had tak-en steps to suspend the application of present guidelinesuntil new by-law are framed and enacted, with a single strokeof his pen. It is quite apparent that no thoughts were givenand no steps were taken for the period interim, for hoardingsthat were to be erected in the city of Colombo. Due to thisposition several parties suffered; the advertisers did not knowon what basis they had to apply for the erection of hoardings;the residents and the general public within the city ofColombo had faced difficulties (P8a, P8b and P8c) and the 1strespondent Council had lost revenue as there was no clearfee structure. It is also to be noted that the 3rd respondenthad refrained from tendering an affidavit to this Court andhad got the 4th respondent to file an affidavit on his behalf aswell as on behalf of 1st, 3rd and 5th respondents.
Considering the aforementioned affidavit of the 4threspondent filed on his behalf and on behalf of the 1st, 3rd and5th respondents, the question which arises at this point isthat, whether the suspension of the guidelines marked as P4was lawful and whether the 1st to 5th respondents had actedin contravention to the doctrine of public trust.
Learned Counsel for the petitioner strongly contendedthat the failure of the 1st to 5th respondents to remove a largenumber of unauthorized hoardings erected within CMC areaand granting of purported approval for the erection of hoard-ings is illegal, irrational and contrary to by-laws of the Council
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and its guidelines and therefore constitutes a grave abuse ofpower and is obnoxious to the doctrine of public trust.
As stated earlier, it was not disputed that the displayingof advertisements within the Colombo Municipality area wasregulated by the by-laws, which came into operation in 1949and the by-laws gazetted in Government Gazette Notificationbearing No. 541/17 dated 20.01.1989 and adopted by the 1strespondent Council. The displaying of such advertisementswithin the Colombo Municipality area was also regulated,as stated earlier, by the guidelines prepared and approvedby the Chief Minister of the Western Provincial Council. Theaforementioned by-laws clearly stipulated that,
“No person shall cause any advertisement to be displayedso as to be visible from any street, road, canal or lake,except under the authority of licence issued in thatbehalf by the Commissioner.”
The proviso to the above clause refer to the advertise-ments to which the aforesaid should not apply, providedthat such advertisement is an illuminated advertisement ora sky sign. These types of advertisements were described asfollows:
“(a) an advertisement relating to any entertainment the netproceeds of which are to be used for the purpose of charity;
an advertisement relating to any entertainment to beheld in the premises upon which such advertisement isdisplayed;
an advertisement displayed by the Government,
an advertisement relating to a religious, political or publicmeeting;
an advertisement in the window of any building;
a To Let’ advertisement;
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a ‘ For Sale’ advertisement;
a domestic name plate;
a name plate not exceeding 09 square meters in area,used for professional purpose;
an advertisement on a vehicle used for trade purposesdisplaying the name and address of the owner of thatvehicle;
an advertisement relating to the trade or businesscarried on in the premises upon which such advertise-ment is displayed.
Part II of the said set of by-laws, refers to the otherrelevant provisions pertaining to advertisements. The learnedCounsel for the 1M to 5th respondents submitted that theby-laws referred to above are the currently applicable by-lawsand the 4th respondent too had averred to this effect in hisaffidavit of 30.11.2007.
It is therefore abundantly clear that there was a set ofvalid by-laws in addition to the aforementioned guidelinespertaining to advertisements within the city limits of the 1strespondent Council area. The contention on behalf of the1st to 5th respondents, as stated in the affidavit of the 4threspondent is that the question whether the hoardings setup at various locations referred to in the petition in violationof the guidelines does not arise since the operation of thesaid guidelines had been suspended by the 3rd respondent.Although the learned Counsel for the 1st to 5th respondentsstrenuously contended that the guidelines in question werenot adequate for the purpose it was intended and that theyhad not obtained legal sanctity, there was no reference madeto the applicability of the by-laws approved by the members ofthe Municipal Council and published in terms of the Munici-pal Councils Ordinance in the Gazette of 20.01.1989. Spe-cific reference was however, made to the by-laws of 1948 (R9)being ‘archaic and in need of drastic changes to suit socio
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economic environment at present’. The question however,arises at this juncture as to whether the 3rd respondent couldhave taken the decision to suspend the guidelines in questionas stated earlier with just a stroke of a pen and totally ignorethe by-laws enacted in terms of the provisions of the Munici-pal Councils Ordinance.
The law regarding the waiver, relaxation and repeal of by-laws of local authority has no ambiguities as there is no pos-sibility for a local authority to waive its by-laws unless thereis specific provision contained in the by-law itself. Referringto this position, Charles A Cross (Principles of Local Govern-ment Law, 6th Edition, pg.123) stated that,
“An authority has no power to waive its by-laws or to re-lax them in any respect unless the by-laws themselvescontain provisions enabling this to be done (it is highlyimprobable that by-laws containing a dispensing powerwould be confirmed) or else there is specific statutoryprovisions for waiver or relaxation.”
This position was considered as far back as in 1899 byDay,J.in Yabbicom vKinglU), where it was categorically statedthat,
. . by-laws properly made have the effect of laws; a pub-lic body cannot any more than private persons dispensewith laws that have to be administered; they have no dis-pensing power whatever.”
When the 3rd respondent had decided to suspend theguidelines, he had not stated about the applicability of theby-laws. A careful examination of the letter from the 3rdrespondent to the Director Engineering (Projects) howev-er, reveals that there is no reference to the applicability ofby-laws enacted and published in the Gazette Notificationdated 20.01.1989. In these circumstances the question aris-es as to whether the 3rd respondent’s decision to suspend the
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application of guidelines and by-laws without any authorityfrom the 1st respondent Council could be regarded as lawfuland not an arbitrary decision. The answer to the question isclearly in the negative for the reasons set forth in the follow-ing paragraphs.
The allegation of the petitioner is that the failure of the 1stto 5th respondent to remove a large number of unauthorizedhoardings erected and further granting of purported approv-al for the erection of hoardings within the city limits of thel8t respondent Council area contrary to applicable by-lawsand guidelines had infringed the fundamental rights of thepetitioner’ and of the resident’s of the CMC area guaranteedin terms of article 12(1) of the Constitution.
Article 12(l)of the Constitution deals with the right toequality and reads as follows:
“All persons are equal before the law and are entitled tothe equal protection of the law. ”
Equality, which is a dynamic concept, forbids unfairnessand arbitrariness. The Concise Oxford Dictionary of CurrentEnglish (7th Edition, pg. 44) refers to an arbitrary decision as,
“Derived from mere opinion or random choice; capricious;unrestrained, despotic.”
Referring to arbitrariness, in E. P. Royappa v. State ofTamil Nadu 1121 it was stated that equality is antithetic toarbitrariness and equality and arbitrariness are swornenemies. In the words of Justice Bhagwati (as he then was),
In fact equality and arbitrariness are sworn enemies; onebelongs to the rule of law in a republic while the other, tothe whim and caprice of an absolute monarch. Where anact is arbitrary, it is implicit in it that it is unequal both
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according to political logic and constitutional law and istherefore violative of Article 14. . .
The summation of these concepts is that in terms of theConstitution everything must be carried out according to therule of law. The concept of the rule of law has many meaningsand out of which an important and relevant aspect is thatthe functions of the authorities should be conducted withina framework of recognized rules and principles, which wouldrestrict discretionary power. Professor Wade refers to thepicturesque language of Coke, where he had described thisposition as “the golden and straight metwand’ of law asopposed to “the uncertain and crooked cord of discretion’(Administrative Law, supra pg. 20).
Although Dicey in his theory had explained that in clas-sical constitutional law wide discretionary power was incom-patible with the rule of law (A. V. Dicey, Law of the Constitu-tion, 9th Edition, pg. 202), this concept does not hold goodin today’s context and in practical terms what is necessarywould be not to eliminate the wide power of discretion, but thecontrol of its exercise.
This general principle had remained unchanged forcenturies and in Coke’s words (Administrative Law, suprapage. 351),
“For discretion is a science or understanding to discernbetween falsity and truth, between wrong and right,between shadows and substance, between equity andcolourable glosses and pretences, and not to do accordingto their wills and private affections; for as one saith, talisdiscretio discretionem confundit.”
It is interesting to note that the general principlewhich was evolved since the Rooke’s case in 1958 (Admin-istrative Law, supra) was followed continuously in relat-ed matters and the decision in Westminister Corporation v.
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London & North Western Raitwaifl3), where Lord Macnaghten,stated with reference to a local authority’s power to erectpublic conveniences that,
“It is well settled that a public body invested with statu-tory powers such as those conferred upon the corpora-tion must take care not to exceed or abuse its powers. Itmust keep within the limits of the authority committed toit. It must act in good faith. And it must act reasonably.The last proposition is involved in the second, if not inthe first.”
This position was further illustrated with approval by LordDenning M.R. in Breen v Amalgamated Engineering Union (14>,referring to the land mark decision in Padfield v Minister ofAgriculture, Fisheries and Food(15), where it was stated that,
“The discretion of a statutory body is never unfettered.It is a discretion which is to be exercised according tolaw. That means at least this: the statutory body must beguided by relevant considerations and not by irrelevant.If its decision is influenced by extraneous considerationswhich it ought not to have taken into account, then thedecision cannot stand. No matter that the statutory bodymay have acted in good faith; nevertheless the decisionwill be set aside. That is established by Padfield v Min-ister of Agriculture, Fisheries and Food, which is a landmark in modem administrative law.”
It is therefore apparent that a public authority has noabsolute or unfettered discretion. Referring to this position,Professor Wade (supra pgs. 354-355) had stated that,
“Statutory power conferred for public purposes isconferred as it were upon trust, not absolutely – Thatis to say, it can validly be used only in the right andproper way which Parliament when conferring it ispresumed to have intended” (emphasis added).
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Learned Counsel for the petitioner contended that themanner in which the approval was granted for the hoard-ings and how they were allowed to be displayed constituteda grave abuse of power and violation of the doctrine of publictrust and the 1st to 5th respondents were liable in terms ofsection 12(1) of the Constitution.
This Court in Bulahkulama and others v Secretary,Ministry of Industrial Development and others (supra) hadcarefully considered the concept of public trust and had heldthat the ‘organs of State are guardians to whom the people havecommitted the care and preservation of the resources ofthe people’. This position was referred to in the SupremeCourt Determination on Tand Ownership’ (Decisions of theSupreme Court on Parliamentaiy Bills, 1991 – 2003, Vol. VIIpg. 455), where it was stated that, “from the time immemo-rial, land had been held in trust for the people in this islandrepublic’.
The concept of public trust had been followed in severaljudgments of this Court and now it is an accepted doctrinethat the resources of the country belong to the people; SriLanka’s sovereignty is in the people in terms of Article 3 ofthe Constitution and is inalienable and includes the powersof government, fundamental rights and the franchise; andthe people have committed the care and preservation of theirresources to the organs of the State, which are their guard-ians or trustees.
In such circumstances, the 1st to 5th respondents havea fundamental duty as specified in Article 28(d) “to preserveand protect public property, and to combat misuse and wasteof public property’. Furthermore the learned Counsel for thepetitioner contended that the arbitrary methods of approvinghoardings in a non-transparent manner had serious lapsesof financial accountability. The 1st respondent Council, whichhas a history of over one hundred and twenty two years, is the
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largest and the oldest Minicipal Council in the country. Rev-enue from an independent source, which is an essential com-modity for any local authority, could have been enhanced, ifthe 1st respondent Council had utilized the applicable by-lawsand the guidelines in granting approval for the hoardings.
Accordingly it is apparent that by the process, whichwas followed by the 1st to 5th respondents, the 1st respondentCouncil would have lost a substantial amount of income,which could have been put to good use for the upliftment,not only of the capital city, but also of its residents.
Learned Counsel for the 1st to 5th respondents contendedthat the guidelines, which were suspended did not provide formany important aspects of advertising. It had not made pro-vision to prevent covering the public view, and no provisionregarding the safety of the public. Furthermore, there wasno provision for competitive transparent bidding procedurein awarding the bill boards and hoardings to advertisers. Itwas also contended that the existing bylaws were archaic andoutdated and in need of drastic changes to suit the presentsocio-economic environment.
Learned Counsel for the 1st to 5th respondents hadfurther contended that the 1st respondent Council receivedonly the annual fee of Rs. 20,000/- per hoarding regardlessof the location of the hoarding. It was conceded referring tothe documents marked P9(a) to P9(e) that the Road Develop-ment Authority had fetched millions of rupees adopting thecompetitive bidding process.
There were five (5) documents submitted by the petition-er along with his petition marked P9(a) to P9(e). These docu-ments refer to the charges levied by the Road DevelopmentAuthority in the year 2007 for the erection and maintenanceof hoardings, gantries, cantilevers and overhead bridges.The relevant portions of these documents are re-produced
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below, since they indicate the income that could be generatedthrough this process.
. . . Permission for erection and maintenance ofhoardings at Peliyagoda abundant bridge on Colombo- Kandy road.
This refers to the auction held at Ministry of Highways on
on the above.
You are required to do the following prior to the erectionof hoarding.
Make payment of Rupees Seven Million Nine Hundredand Twelve Thousand and Five Hundred + 15% VAT(Rs. 7,912,500.00 + 15% VAT) by a Bank draft
1. You are required to erect, maintain and removal of theabove hoarding strictly in accordance with the conditionsfor erection, maintenance and removal of hoardings onNational Highways. . . . (P9a)
Permission for erection and maintenance of gantriesand cantilever on Cotta Road.
… Make payment of Rupees One Million Six HundredThousand + 15% VAT (Rs. 1,600,000.00 + 15% VATby a Bank draft. . . (P9b)
Permission for erection and maintenance of gantries,cantilevers and overhead bridges on Marine Drive.
This it to inform you that you are the successful bidderat the above auction for installing and maintaining of 02Nos. full gantries, 04 Nos. cantilevers and advertisingspace of 02 Nos. overhead bridges on Marine Drive.
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Make payment of Rupees Two Million Bight HundredThousand + 15% VAT (Rs. 2,800,000.00 + 15%VAT) .
. . (P9c)
Permission for erection and maintenance of gantriesand cantilevers on W. A. Silva Mawatha.
This is to inform you- that you are the successful bidderof the above auction for installing and maintaining of03 Nos. full gantries and 02 Nos. Cantilevers on W.A.Silva Mawatha
This is to inform you that you are the successful bidderof the above auction for installing and maintaining of 03Nos. full gantries and 02 Nos. Cantilevers on W. A.Silva Mawatha.
Make payment of Rupees One Million Nine HundredThousand + 15% VAT (Rs. 1,900,000.00 + 15% VAT)
(P9d)
Permission for erection and maintenance of hoardingon Baseline Road.
This is to inform you that you are the successful bid-der at the above auction for installing and maintaining of35 Nos. hoardings on Baseline Road.
Make Payment of Rupees Six Hundred Thousand + 15%
VAT (Rs. 6,600,000.00 + 15% VAT)(P9e)” (emphasis
added).
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It is common ground that the 1st respondent Councilhad charged only a maximum of Rs. 20,000/- per annumper hoarding. The aforementioned documents clearly illus-trate the amount of revenue the 1st respondent Council couldhave earned through such hoardings. In fact guideline 18 ofthe document marked P4 refers to the fact that hoardingscould be awarded to advertisers by calling for tenders. Evenin the event that there were no proper guidelines, the 1st re-spondent Council could have formulated relevant guidelineseither to allow tenders or to conduct auctions. Irrespectiveof the method used, it is not disputed that, this would havepaved the way for the 1st respondent Council to enhance itsrevenue from an independent source of income.
Learned Counsel for the petitioner submitted that it iscommon ground that even a newspaper advertisement of afull page in an insignificant page of a widely circulated news-paper would cost over Rs. 350,000/-. In such circumstances,it is surprising that the 1st respondent Council, presumablybeing aware of how advertising space was given by otherorganizations such as the Road Development Authority, tookno steps at least on a temporary basis, until such time theguidelines were implemented, to levy a fee commensuratewith the other comparable institutions.
Learned Counsel for the 1st to 5th respondents submittedthat the 1st respondent Council had levied license fees in termsof Council Resolution No. 2061 (sanctioned on 28.06.1996)and that it is necessary to revise the present fees.
Accordingly learned Counsel for the 1st to 5th respondentscontended that it was the sole responsibility of the membersof the 1st respondent Council to impose appropriate licensefees and to prepare a new set of by-laws to regulate the set-ting up of hoardings.
Whilst such was the situation, the 3rd respondent hadtaken steps to suspend the guidelines without making any
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arrangements as to the procedure that should be applicableregarding the erection of hoardings in the interim. At the timethe guidelines were suspended no reference was made to theapplicability of the prevailing by-laws. Accordingly it is notdisputed that due to the said action of the 3rd respondent,several illegal hoardings had come up within the city limitsof Colombo without any consideration for the safety of thegeneral public or the scenic beauty of the capital city of thecountry.
Advertising, it is to be noted, has been used by the com-mercial enterprises and the business community for the pur-pose of promoting their products and has become a thrivingindustry in the commercial world. Considering its competi-tiveness in today’s context, advertising, which in its purestform is an art, alone had become a booming industry, whichshould not be stifled. It is also to be noted that the creativityand the variety of out door advertisements carried out in anorganized manner could add colour, vividity and luster to acity centre.
However, it is to be admitted that there should be a pol-icy, guidelines and bylaws to regulate the erection of hoard-ings, bill boards, gantries and any other mode used for thepurpose of exhibiting advertisements. These regulationsshould have the requirement in issuing licenses for suchhoardings etc. in public places as well as in private places.When public places are concerned, it is not disputed thatthe State or the local government institutions concerned hasthe authority to regulate them. As stated in Saghir Ahmadv. The State of Uttar Pradesh (16), referring to the decision inC. S. S. Motor Service v. State of Madras (17):
“The true position then is, that all public streets and
roads vest in the State, but that the State holds them
as trustees on behalf of the public. The members of the
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Sri Lanka Law Reports
[2009] 1 SRIL.R.
public are entitled as beneficiaries to use them as amatter of right. . . . The State as trustees on behalf of thepublic is entitled to impose all such limitations on thecharacter and extent of the user as may be requisite forprotecting the rights of the public generally;. . .”
However, this does not mean that the hoardings erectedon private places should be. excluded. As referred to in LinksAdvertisers and Business Promoters v Commissioner, Corpo-ration of the City of Bangalore (18), what is necessary to beconsidered is whether the advertisement affixed is frontingthe public street and is exposed to public view and if so theconditions applicable to hoardings situated in public prop-erty would be applicable to those as well.
On an examination of all the circumstances aforemen-tioned, it is apparent that the manner in which hoardingshad been allowed to be displayed without any regard to thescenic beauty and the historical value of the capital city ofthe country, without due regard to safety of the public andthe non consideration for the financial accountability regard-ing the income that could have been generated by the 1strespondent Council, the said respondents should have takensteps to remove the unauthorized hoardings in terms of theapplicable by-laws and guidelines. Such failure to remove thesaid unauthorized hoardings and granting approval withoutgiving due consideration to the by-laws and guidelines, whichwere applicable at the time material had constituted an in-fringement of the fundamental rights of the petitioner and theresidents of the CMC area by ‘executive and administrativeaction’ within the meaning of Article 126 of the Constitutionand I hold that the 1st to 5th respondents are responsible forthe said violation of the fundamental rights of the petitioner’sand the residents’ of the CMC area, guaranteed in terms ofArticle 12(1) of the Constitution.
I accordingly allow this application and direct the 1strespondent to take action forthwith on the following:
sc
Azath SaUey Vs Colombo Municipal Council And Others
(Dr. Shtrani Bandaranayake, J.)
405
to strictly enforce the by-laws published in the GazetteNotification dated 20.01.1989 (RIO) and the guidelinesfor advertising in Colombo which came into effect on01.01.2006, (P4) until such time amended by-laws andguidelines are introduced;
to remove all unauthorized/illegal hoardings and hoard-ings erected in the Colombo Municipal Council area whichwere given approval in violation of the aforementioned by-laws and the guidelines for advertising in Colombo; and
to take immediate steps to revise the present guide-lines, considering the globally accepted detailed policieson hoardings and out door advertising in keeping withthe practice of other organizations such as the RoadDevelopment Authority conducting auctions to enhancethe financial viability in the process. Such revision ofguidelines to be carried out as an urgent requirement bythe 1st respondent Council and to consider the proposalsfor this purpose that could be submitted by the 6th and7th respondents, who are the President and the Secretary- General of the Outdoor Advertising Association of SriLanka, respectively.
These guidelines to be prepared and finalized to comeinto being with effect from 01.01.2010.
If these directions are sincerely and expeditiously car-ried out, it would not only improve the revenue of the 1st re-spondent Council, but would also be an enhancement to theadvertising industry and more importantly, would beautifythe capital city of the pearl of the Indian Ocean.
In all the circumstances of this case, I make no order asto costs.
AMARATUNGA, J. – I agreeBALAPATABENDI, J. – I agreeApplication allowed