ENVIRONMENTAL FOUNDATION LTD v. MINISTER OF PUBLIC ADMINISTRATION AND

031-SLLR-SLLR-1997-2-ENVIRONMENTAL-FOUNDATION-LTD-v.-MINISTER-OF-PUBLIC-ADMINISTRATION-AND.pdf


306
Sri Lanka Law Reports
[1997] 2 Sri LR.
ENVIRONMENTAL FOUNDATION LTD.
v.
MINISTER OF PUBLIC ADMINISTRATIONAND SIX OTHERS
COURT OF APPEALDR. RANARAJA. J.
C.A. 137/96.
DECEMBER 17,1996.
Certiorari – Permit to run a Zoo – Locus standi – Implementation and Enforcementof the law relating to nature, its conservation and the environment – ConstitutionArticles 28(f) and 29.
Fauna and Flora Protection Ordinance No. 2 of 1957 – Amended by Act, No. 49of 1993 – Section 55 – Alternative remedy.
The petitioner, a public interest environmental law and advocacy organisationsought a writ of certiorari to quash the authorisation issued by the Director,Department of Wild Life Conservation (2nd respondent) granted to the 3rdrespondent to possess and display 30 species of mammals, reptiles and birdsand the decision of the 1st respondent Minister to restore the Permit which wasearlier revoked. It was contended that a permit cannot be issued to run a privateZoo, in terms of Act, No. 49 of 1993.
It was also contended that, it is an offence to take writ to have in one's possession26 species of mammals, reptiles and birds listed in the permit except for thepurpose of protection, preservation, propagation, scientific study or investigation,unless the Zoo is a National Zoo.
Held:
As a party genuinely interested in the matter complained of, the petitioner haslocus standi to make this application.
Section 56(2) of the Ordinance No. 2 of 1937 (as amended) gives any personaggrieved by the revocation of a permit the right to appeal to the Minister, and thedecision of the Minister is final and conclusive (section 56(4)). In view of thepreclusive clause, court will not interfere with an order except in thecircumstances set out in section 22 of the Interpretation Ordinance.
The petitioner has not satisfied court that either the 1st or the 2nd respondent hadacted contrary to the provisions in section 22.
If the 3rd respondent (the owner of the Zoo) has breached the conditions in thepermit the petitioner has the right to make representations to the 2nd respondent- Director of Wild Life Conservation, for necessary action in terms of the clausesin the permit.
Since breach of the conditions in the permit is a matter which court is not in aposition to monitor continuously, it will not make orders it cannot effectivelyenforce.
CA
Environmental Foundation Ltd. v. Minister of Public Administration
and Six Others (Dr. Ranaraja, J.)
307
APPLICATION for a Writ of Certiorari.
Cases referred to:
Premadasa v. Wijewardena – [1991] – 1 Sri L.R. 333 at 343.
Simon Singho v. Government Agent, WP – 47 NLR 545.
Wijesiri v. Siriwardena [1982] – 1 Sri LR 171.
R. v. Paddington, Valuation Officer 1966 1 QB 380.
R. v. Thames Magistrates Court (1957) 55 LR 129.
Re Forster(1863) 4 B & S 187.
Sama Lanka Ltd., v. Weerakoon [1994] – 1 Sri LR 405.
Lalanath de Silva with Mihiri Gunaratne for petitioner.
K. C. Kamalasabayson', P.C., A.S.G. with S. Sri Skandarajah SSCfor respondent.F. Musthapa, PC. for 3rd respondent.
Cur. adv. vult.
December 17,1996.
DR. RANARAJA, J.
The petitioner, Environmental Foundation Ltd., a public interest,Environmental, Law and Advocacy Organisation has filed thisapplication inter alia;
for a writ of certiorari quashing the authorisation (1R1),issued by the 2nd respondent, Director, Department of WildlifeConservation, to the 3rd respondent, Masahim Mohamed, to possessand display 30 species of mammals, reptiles and birds specifiedtherein.
for a writ of certiorari quashing the decision of the 1strespondent, Minister of Public Administration, conveyed by letterdated 22.9.95 (2R17), to restore Permit No. Va/Sa/San 1.5.62, dated
(1R1), subject to the restriction of species and number ofanimals, which could be kept by the 3rd respondent under theconditions stipulated in the permit.
The 3rd respondent is the owner of a private Zoo called"Crocodiles and Mini Zoo”, Galle Road, Ahungalla, on' 1R1, issued bythe 2nd respondent. The Zoo is open to the public on payment of anentrance fee of Rs. 15/- and Rs. 100,-. from local and foreign visitors
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respectively. The permit lists 30 species of mammals, reptiles andbirds and the number of each species that could be possessed andexhibited. 1R1 also lists six conditions under which it is issued. Thepetitioner states that it is an offence to take and to have in one’spossession 26 species of mammals, reptiles and birds listed in 1R1,except for the purpose of protection, preservation, propagation or forscientific study or investigation. Only a National Zoo it is submittedmay be allowed such an exemption. The petitioner contends that inthe circumstances, 1R1 that has been issued by the 2nd respondent,is illegal, null and void. The petitioner has also alleged that the 3rdrespondent has in his possession a sloth bear not included in thepermit and five pythons in excess of the number permitted by 1R1,and the permit should be revoked in terms of condition no. 6.
The petitioner filed an earlier application No. 933/94, before thisCourt seeking inter alia, a writ of certiorari quashing 1R1. While thatapplication was pending, permit 1R1 was revoked by letter dated
(B), sent by the 2nd respondent to the 3rd respondent. The3rd respondent then appealed to the 1st respondent agajnst order(B), by letter dated 1.8.95, (3R2/1R1). The 1st respondent aftercalling for and considering the reports from the 2nd respondent, theSecretary and Additional Secretary of his ministry had decided torestore 1R1, on condition that the species and the number of animalskept in the 3rd respondent’s possession should be restricted to thespecies and number specified in the permit. That decision wasconveyed to the 3rd respondent by 2R17/3R3. On an applicationmade by the petitioner to withdraw Application No. 933/94, whichwas allowed, that application was dismissed.
Counsel for the 1st and 2nd respondents have taken a preliminaryobjection that the petitioner has no locus standii to make the presentapplication. He submits that the law as to locus standi to apply forCertiorari may be stated as follows; the writ can be applied for by anaggrieved party, who has a grievance or by a member of the public.If the applicant is a member of the public, he must have sufficientinterest to make the application”. Premadasa v. Wijewardenam.
. Locus standi in relation to mandamus is more stringent. The petitionermust have a personal interest in the subject matter of the application.,Simon Singho v. Government Agent W.P.V).
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Environmental Foundation Ltd. v. Minister of Public Administration
and Six Others (Dr. Ranaraja, J.)
309
Counsel for the petitioner on the other hand submits that thepetitioner has as its objectives the protection of nature and theconservation of its riches. – (vide P1, P2, P3). It is genuinely concernedwith the implementation and enforcement of the law relating to nature,its conservation and the environment in general and is performing aduty cast on it by Article 28(f) of the Constitution of Sri Lanka, toprotect nature and conserve its riches. It is to be noted, however, thatArticle 29 of the Constitution provides that the provisions of ChapterVI do not confer or impose legal rights or obligations and are notenforceable in any Court or Tribunal.
However, there are decisions both here and abroad which haveexpanded the principle of locus standi to include an applicant, whocan show a genuine interest in the matter complained of and that hecomes before Court as a public spirited person, concerned to see thatthe law is obeyed in the interests of all: See: Wijesiri v. Siriwardena{3).Unless any citizen has standing, therefore, there is no means ofkeeping public authorities within the law, unless the Attorney-Generalwill act – which frequently he will not. That private persons should beable to obtain some remedy was therefore “a matter of highconstitutional principle”. – Lord Denning M.R. – R v. PaddingtonValuation Officer w. Nevertheless the Court would not listen to a merebusybody who was interfering in things which did not concern him. Butwill listen to any one whose interests are affected by what has beendone. See: R v. Paddington (supra). In any event, if the application ismade by what for convenience one may call a stranger, the remedy ispurely discretionary. See: Parker, J. in R. v Thames Magistrates Court{S).Court retains the discretion to refuse to act at the instance of a merestranger if it considers that no good would be done to the public. See:Re Forster(6). As a party genuinely interested in the matter complainedof, the petitioner has the locus standi to make this application.
The petitioner's complaint is that section 55 of the Fauna and FloraProtection Ordinance, No. 2 of 1937, permits the 2nd respondent bya writing under his hand to authorise any person to do any actotherwise prohibited or penalized under that Ordinance or anyregulation made thereunder, if in the opinion of the 2nd respondent
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such act should be authorised for the protection, preservation orpropagation, or for scientific study or investigation, or for thecollection of specimens for a Zoo, museum or similar institution, ofthe fauna and flora of Sri Lanka. By the Fauna and Flora Protection(Amendment) Act, No. 49 of 1993, certified on 20.10.93, the words “fora Zoo" have been replaced by the words “For a national Zoo". The 3rdrespondent's Zoo is a private Zoo. Therefore, it is contended the permit1R1 issued by the 2nd respondent is illegal, null and void. It issubmitted, the restoration of permit 1R1, in the purported exercise ofthe powers under section 56 of the Ordinance by the 1st respondent, isalso made without jurisdiction and therefore null and void.
The 1st respondent has affirmed that permit 1R1, was issued priorto the certification of the Fauna and Flora Protection (Amendment)Act. This statement of the 1st respondent has not been challengedby the petitioner by way of affidavit. Upon the revocation of 1R1, bythe 2nd respondent the 3rd respondent has appealed to the 1strespondent, who as admitted by the petitioner in paragraph 6 of thepetition, is the appellate authority for the purpose of permits andlicences under section 56 of the Ordinance. In paragraph 8 of thepetition filed in application 933/94, (A) the petitioner has admitted1R1 was a “permit” issued by the 2nd respondent to the 3rdrespondent to possess and display 30 species of mammals, reptilesand birds specified in the said permit (vide clause 6 of 1R1).
Section 56(2) gives any person aggrieved by the revocation of apermit or licence the right to appeal against such revocation to theMinister, and a decision of the Minister on any appeal under section56(2) shall be final and conclusive in terms of section 56(4). in viewof the preclusive clause, this Court will not and cannot interfere withsuch an order except in the circumstances set out in section 22 of theInterpretation Ordinance. That is, where, (a) the order made is exfacie not within the power conferred on the person making suchdecision, (b) the person making such decision has not followed amandatory rule of law or (c) failed to observe rules of natural justicein the process of making such decision. See: SamaLanka Ltd. v.Weerakoonp). The petitioner has not satisfied this Court that either the
CA
Environmental Foundation Ltd. v. Minister of Public Administration
and Six Others (Dr. Ranaraja, J.)
311
1st or 2nd respondent has acted contrary to (a) to (c) above. Reliefs,c and d, claimed by the petitioner stem from reliefs a and b. If the 3rdrespondent has breached the conditions in 1R1, by either possessingmammals, reptiles and birds in excess of the number permitted by1R1, or keeping the sloth bear without authorisation of the 2ndrespondent, the petitioner will in any event have the right, as it hasalready done, to make representations to the 2nd respondent fornecessary action in terms of clause 6 of 1R1. Since breach of theconditions in 1R1 is a matter which Court is not in a position tomonitor continuously, primarily because of the natural increase bybreeding – (vide 3R4), it will not make orders it cannot effectivelyenforce. Reliefs e, f and g are matters preliminary to the hearing ofthe application. Since the petitioner has failed to establish sufficientgrounds for reliefs a and b. The application is dismissed withoutcosts.