Environmental Foundation Limited Vs Urban Development Authority of
SCSri Lanka and others123
ENVIRONMENTAL FOUNDATION LIMITED
vsURBAN DEVELOPMENT AUTHORITY OF SRI LANKAAND OTHERS
SUPREME COURTSARATH N. SILVA, C. J.
N. K. UDALAGAMA, J AND
N. E. DISSANAYAKE, J
SC (F. R.) APPLICATION NO. 47/2004
Constitution -Article 12(1) – Equality before law -Article 14(1) (a) freedomof speech and expression – Article 4(d) – Manner in which the sover-eighty of the people shall be exercised in relation to fundamental rights -Whether petitioner being an incorporated company had legal status toinvoke fundamental rights jurisdiction under Article 12(1) and 14(l)(d)of the Constitution.
An application was filed by the petitioner in the public interest and it re-lates to a purported Management Agreement or Lease entered into on15.12.2003 by the 1st respondent (UDA) with the 2nd Respondent (E. A.P. Networks (Pvt.) Ltd. – E. A. P. Ltd) whereby it was sought to hand overthe management and control of the 14 acre – “the Galle Face Green”, toE. A. P. Ltd. The Supreme Court granted leave to proceed and made aninterim order directing the UDA to refrain from putting into operation anylease or any other kind of arrangement or agreement affecting the use,occupation and/or management of the area described as the Galle FaceGreen.
Held:
Although the right to information is not specifically guaranteed underthe Constitution as a fundamental right, the freedom of speech andexpression including publication guaranteed by Article 14(l)(a), to bemeaningful and effective should carry within its scope an implicit rightof a person to secure relevant information from a public authority inrespect of a matter that should be in the public domain. It shouldnecessarily be so where the public interest in the matter outweighsthe confidentiality that attaches to affairs of State and officialcommunications.
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The Urban Development Authority (UDA) is an organ of theGovernment and is required by the provisions of Article 4(d) to secureand advance the fundamental rights that are guaranteed by theConstitution.
The UDA has an obligation under the Constitution to ensure that aperson could effectively exercise the freedom of speech, expression andpublication in respect of a matter that should be in the public domain.Consequently, a bare denial of access to official information amountsto infringement of the petitioner’s fundamental rights as guaranteedby Article 14(l)(a) of the Constitution.
The arbitrary refusal of information required by the Petitioner is aninfringement of the Petitioner’s fundamental rights guaranteed byArticle 12(1) of the Constitution.
The word “persons” as appearing in Article 12(1) should not berestricted to “natural” persons but extended to all entities having legalpersonality recognized by law.
J
Sarath N Silva. CJ:
“Although Counsel contended that Article 14(1) should be readdifferently in view of the reference to a “citizen”. I am of the view that thisdistinction does not carry with it a difference which would enable acompany incorporated in Sri Lanka, to vindicate an infringementunder Article 12(1) and disqualifies it from doing so in respect of aninfringement under Article 14(1).
(6) The action of the UDA constitutes an infringement of fundamentalrights guaranteed by Article 12(1) of the Constitution.
APPLICATION for relief for infringement of fundamental rights.
Cases referred to:-
Janatha Finance & Investments Ltd vs. Liuanage & others -1983 2SLR 111
Smithkline Beecham Biological S. A. 8s Others vs. State Pharmaceuti-cal of Sri Lanka & Others 1997 3 SLR 20
Leader Publications (Pvt) Ltd vs. Ariya Rabasinghe, Director of Infor-mation & competent Authority 8s others 2000 1 SLR 265
I. R. Rajapakse with Ms. Pamoda Rajakeeya for Petitioner
Romesh de Siva, P. C. with Sugath Caldera for 1st Respondent.
Shankir Parathatingam, P. C. with N. R. Svendran and S. Cooray for 2nd
Respondent.
Cur. vutLadv
Environmental Foundation Limited Vs Urban Development Authority of
SCSri Lanka and others (Sarath N. Silva, C. J.)125
November 23, 2005SARATH N. SILVA, C. J.
This case relates to a purported Management Agreementor Lease entered into on 15.12.2003 by the 1st Respondent(Urban Development Authority – UDA) with the 2nd Respondent(E.A.P. Networks (Pvt) Ltd – EAP Ltd), whereby it was soughtto hand over the management and control of the 14 acreseaside promenade of Colombo – “the Galle Face Green”, toE. A. P. Ltd. When the application was supported on13.02.2004, the Court granted leave to proceed and madean interim order directing the UDA to refrain from puttinginto operation any lease or any other kind of arrangement oragreement affecting the use, occupation and /or managementof the area described as the Galle Face Green. The orderstates as follows:
“We make this order on the basis that Galle Face Greenhas been open to the public, established and maintainedas a public utility for the past 150 years.”
The interim order did not make specific reference to theimpugned Agreement since it was not in the public domainat that time and the Petitioner had been denied access toit, being the alleged infringement of Article 14(1) (a) of theConstitution.
The Agreement has been subsequently produced byE.A.P. Ltd., marked 2R2. Although the Agreement purportsto be a Management Agreement, as correctly submitted byCounsel for the Petitioner, since it provides for payment tobe made to the UDA it is more in the nature of a lease. It isplain that a manager does not pay the owner. I do not haveto dwell on this matter further, since even after the extendedtime allowed for the purpose, the Respondents have failed toproduce any grant, lease or order by which Galle Face Greenwas vested in the UDA. Therefore, the UDA had no powerwhatsoever to enter into the Agreement 2R2 and the interimorder of this Court fortuitously prevented, “the landmark in
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the history of our nation”, “the nations pride and heritage” (touse the words, in the prominent newspaper notification P5,published by the UDA, which would be referred to later) frompassing into private hands.
This is an application filed in the public interest andconsidering the purported exercise of power by the UDAalleged to be an infringement of Article 12(1) of the Constitution- and the refusal to disclose information alleged to be aninfringement of Article 14(l)(a), it is necessary to examine thelegal status and character of the Galle Face Green.
As stated in the description, in the newspaper notificationP5, published by UDA, the Galle Face Green is in certainrespects a “landmark in the history of our nation”, in referenceto the British period of colonial rule of our history and thelater period after gaining independence. Whilst the national,social, cultural and political events that have taken place atthe Galle Face Green, including Independence Day Parades,Swearing in of the President, visit of His Holiness the Pope andforeign dignitaries including Her Majesty the Queen, May DayRallies, and the like form part of our contemporary history,the establishment and development of Galle Face Green arefirmly engraved on a rock tablet and a plaque, found at theseaward edge and at the Galle Road end, respectively of theGreen. The rock tablet (referred to in P4d) at the sea-wardedge of the “walk’ marks the commencement of the Galle FaceGreen and has a legal significance that we have to take noteof. The rock tablet, well preserved upto date, has the followinginscription:
GALLE FACE WALKCommenced bySir Henry Ward1856
Completed 1859
and recommended to his successors in the interestof the Ladies and Children of Colombo
Environmental Foundation Limited Vs Urban Development Authority of
SCSri Lanka and others (Sarath N. Silva, C. J.)127
Sir Henry Ward was the Governor and wielded the powerof the British Monarch. The inscription reflects the immensetoil that would have gone into the construction of the elevatedwalk and green with the panoramic view of the Indian Oceanstretching to the arch of the horizon. The idyllic setting oftranquility and leisure was dedicated to the “ladies and childrenof Colombo”. The “recommendation to his successors” by theGovernor, which would include the Government of the Republicof Sri Lanka, ascribes to it the character of a dedication inperpetuity and it is the duty of the Government of Sri Lankato maintain the Galle Face Green in the manner as laid downby Sir Henry Ward. The location of the Galle Face Hotelconstructed in 1864, effectively prevents the construction of anyroad, highway or rail track across the Green and removed it fromthe pale of commercial exploitation. The cherished dedicationof Sir Henry Ward has held sway for nearly 150 years until, thearrangement being the subject of this application was made, inthe manner that will be stated hereafter.
As noted in the publication P4, over the years due to badmaintenance, the Green turned into a dust bowl and in the years2000 – 2001 the then administration undertook a comprehensiverehabilitation programme spending over Rs. 30 Million, whichwas completed 23.9.2001 as recorded in the plaque referred toabove, as a part of a comprehensive Galle Face DevelopmentProgramme.
After the change of administration towards the end ofDecember 2003, the Petitioner pleads that there were severalnewspaper publications, some of which have been producedmarked P4(a) to P4(d) reporting a “deal” entered into between theUDA and EAP Ltd., whereby the control of the Green would passto the latter to set up a “Mega Leisure Complex”. The computerprint out of the Gulf News “GN online” dated 23.12.2003 (P5d)contains an account of the Governor and the extensivedevelopment carried out by the previous administration. A portionof this publication reads as follows:
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“Now, the Urban Development Authority has leased outthe sacred site to a private entertainment company, E.A.P.Edirisinghe, to turn the Green to a mega entertainmentand leisure park with food stalls with a hawker-streetstyle theme. Small-time traders fear they will be wipedout of business as the big-names come into eat into theirbusiness. And free access will surely be a thing of the past.The hands-off Galle Face Green policy since the latter partof the 19th century might not be yielded without a fight.”
The UDA lost no time responding to these publicationswhich implied a “secret deal”- and published a half pagenotification on 4.1.2004(p5) with a bold headline.
MORE TRANSPARENT THAN GLASS
The notification is in reference to the transaction the UDAhas entered into with E. A. P. Ltd., and extols the many attri-butes of the Green some of which have been referred to abovewith an assurance that the public would have free and uninter-rupted access to the Green.
Within 2 days of the publication P5, the Petitioner wroteletter P6 (dated 6.1.2004) to the UDA describing its status as a“ non-profit making organization – which has for over 22 yearsdedicated itself to the protection of the environment in the publicinterest” and called for copies of the following documents-
The Order vesting the Galle Face Green in the UDA
The Lease Agreement entered into with EAP Group ofcompanies or related entity
The approved plan, if any, for the development of Galle FaceGreen in terms of the said lease.
The Petitioner copied the letter to the Chairperson E.A.P.Group of Companies. There was no response to this request ofthe Petitioner by the UDA and E.A.P. Ltd. The Petitioner thensent a further request by letter dated 14.1.2004, addressed
Environmental Foundation Limited Vs Urban Development Authority of
SCSri Lanka and others (Sarath N. Silva, C. J.)129
to the UDA and E.A.P. Ltd (P7 and P8) The UDA replied byletter dated 20.1.2004(P10), stating that the Authority is notin a position to forward official documents as requested.
The Petitioner alleges that the refusal on the part of the UDAto disclose the information, as requested in the letters markedP6 and P8 constitute an infringement of the fundamental rightguaranteed by Article 14(l)(a) of the Constitution. It is seen thatthis Article guarantees “the freedom of speech and expressionincluding publication”.
There is no specific guarantee of a fundamental right toinformation contained in our Constitution.
Counsel for the Petitioner contended that the right toinformation, in the circumstances of this case, is implicit in thefreedom of expression, that is guaranteed by Article 14(l)(a) ofthe Constitution. It is submitted that the UDA by the publicationof P5 containing the bold headline “more transparent than glass”brought the matter of the agreement entered into with E.A.P.Ltd., into the public domain. Therefore the Petitioner is entitledto check on the information given by the UDA as regards thetransaction entered into with E.A.P. Ltd., by securing therelevant documents including the vesting order, agreementand the approved plan for development. It is only on the basisof this information the Petitioner would be in a position toeffectively exercise the freedom of expression. It is contendedthat the Petitioner, being a well recognized entity working for thepreservation of the environment is entitled to act in the publicinterest and secure relevant information as to the transactionthat had been entered into since the matter should be in thepublic domain.
The contention of the Petitioner and the objections raisedthereto, have to be considered in the light of the fact theright to information is not specifically guaranteed under our
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Constitution as a fundamental right. Although there is no suchsafeguard I am of the view that the “freedom of speech andexpression including publication’ guaranteed by Article 14(l)(a),to be meaningful and effective should cany within its scope animplicit right of a person to secure relevant information froma public authority in respect of a matter that should be in thepublic domain. It should necessarily be so where the publicinterest in the matter outweighs the confidentiality that attachesto affairs of State and official communications.
Article 4(d) of the Constitution states the maimer in whichthe sovereignty of the people shall be exercised in relation to thefundamental rights, as follows:
“the fundamental rights which are by the Constitutiondeclared and recognized shall be respected, secured andadvanced by all the organs of government, and shall not beabridged, restricted or denied, save in the manner and to theextent hereinafter provided.”
The UDA is an organ of the Government and is requiredby the provisions of Article 4(d) to secure and advance thefundamental rights that are guaranteed by the Constitution. Ithas an obligation under the Constitution to ensure that a personcould effectively exercise the freedom of speech, expression andpublication in respect of a matter that should be in the public do-main. Therefore a bare denial of access to official information ascontained in P10, sent by the UDA, in my view amounts to an in-fringement of the Petitioner’s fundamental rights as guaranteedby Article 14(1) (a) of the Constitution.
The petitioner also alleges that the refusal as contained indocument P10 on the part of the UDA amounts to an arbitraiyexercise of power in the absence of specific reasons that support, such refusal. The UDA is here purporting to exercise statutorypower. It has held out in publication P5 that a very transparent
Environmental Foundation Limited Vs Urban Development Authority of
SCSri Lanka and others (Sarath N. Silva, C. J.)131
transaction has been entered into in respect of Galle Face Greenwith E.A.P. Ltd., with all necessary safeguards to preserve andprotect the public interest. Since the transaction entered intoand the publication constitute a purported exercise of power, thearbitrary refusal of information required by the Petitioner is aninfringement of the petitioner’s fundamental rights guaranteedby Article 12(1) of the Constitution. In this instance I have tonote that the conduct of the UDA is worse than being arbitraryin the light of the publications that alleged a “secret deal” inrespect of the Galle Face Green and UDA’s bold notification thatthe agreement entered into was a very transparent transaction.The purpose of the publication was to mislead the public thateverything has been done reasonably and according to law.But, when requested for information the UDA took a differentturn and refused any disclosure of whatever information. TheUDA has persisted in this refusal even before the Court. This isadministrative action that has to be unreservedly condemned.Therefore the irresistible inference to be drawn is that thepublication P5 was an act of deceit on the part of the UDA toprevent any further inquiry into the matter and the agreemententered into, until it was implemented.
The timely intervention of the Petitioner prevented thematter becoming a fait accompli In the circumstances the actionof the UDA constitutes an infringement of fundamental rightsguaranteed by Article 12(1) of the Constitution.
An objection has been raised that the Petitioner cannot haveand maintain this application, since it is an incorporated companyand that the fundamental rights guaranteed by Articles12(1) and 14(l)(a) can be invoked only by persons and inthe case of Article 14(l)(a) by a citizen. In my view the word“persons” as appearing in Article 12(1) should not be restricted to“natural” persons but extended to all entities having legalpersonality, In several cases this Court has given relief to
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incorporated bodies that have a legal personality recognized bylaw Jarvatha Finance & Investments Ltd. vs. Liyanage & Others/11Smithkline Beecham Biological S. A. & Others vs. State Phar-maceutical of Sri Lanka & Others/21 Leader Publications (Pvt) Ltdvs. Ariya Rubasinghe, Director of Information & CompetentAuthority & Others/31 Although Counsel contended that Article14(1) should be read differently in view of the reference to a“citizen”, I am of the view that this distinction does not carrywith it a difference which would enable a company incorporatein Sri Lanka, to vindicate an infringement under Article 12(1)and disqualify it from doing so in respect of an infringementunder Article 14(1).
The Petitioner has pleaded, without contradiction that itis a non profit making organization with the object of inter aliathe monitoring of State Departments and regulatory Agencies toensure that the public interest is protected in the matter ofpreserving the environment.
In December 1981 Central Environment Authority registeredthe Petitioner as a National Level Non-Governmental Organizationengaged in activities in the field of environment (P3).
In several cases the petitioner has assisted this Court inimportant matters with regard to the preservation of environment.In this instance too the Petitioner has acted in the public interestand exposed acts on the part of the UDA that are clearly ultravires. As noted above although much time has been granted, theUDA has failed to produce any order or authority by which theGalle Face Green had been vested in it.
It appears that the then Minister in charge of UrbanDevelopment whose efforts are referred to in the publicationsP4(c) and P4(d), used the agency of the UDA in order tocany out the ambitious Galle Face Development Project. It hadbeen done in the fulfilment of the dedication made by Sri Hen-
Environmental Foundation limited Vs Urban Development Authority of
SCSri Lanka and others (Sarath N. SUva, C. J.)133
iy Ward to preserve this seaside promenade as a place of quietleisure for the people of Sri Lanka” After the change ofadministration the UDA has endeavoured to commercialize thisproperly dedicated to the public benefit without realizing thesignificance of the sensitivity with which the colonial Governorexpended enormous amount of money and effort to create apanoramic setting.
For the reasons stated above I would grant to the Petitionera declaration that the fundamental rights guaranteed by Articles12(1) and 14(l)(a) have been infringed by acts of the UDA.
I would make a further order declaring that the purportedagreement entered into between the UDA and EAP Limited andproduced marked 2R2 is ultra vires and of no force or avail inlaw. The Galle Face Green should be maintained as a publicutility in continuance of the dedication made by Sir HenryWard and necessary resources for this purpose should be madeavailable by the Government of Sri Lanka, being the successorto the Colonial Governor who made the dedication referred toabove.
The application is allowed and the 1st Respondent is directedto pay the Petitioner a sum of Rs. 50,000/- as costs.
UDALAGAMA J. -1 agree
DISSANAYAKE J. -1 agree
Application allowed.
