CA
Environmental Foundation Ltd. vs.
Central Environmental Authority and Others
57
ENVIRONMENTAL FOUNDATION LTD.VS.CENTRAL ENVIRONMENTAL AUTHORITY AND OTHERSCOURT OF APPEAL.
SRIPAVAN. J.
SISIRA DE ABREW. JCA 1556/2004.
OCTOBER 7, 24, 2005.
NOVEMBER 21, 2005.
MAY 11,2006.
JULY 12, 2006.
Writ of Certiorari and Mandamus National Environmental Act, No. 47 of1980-section 23 BB (4) – Hydro Power Project- Approval granted on I. E. E.Report – No EIA Report – Validity?-Exercise of power in a certain form -Neglect – Ultra vires?
The petitioner alleges that the Central Environmental Authority (CEA)published a notice indicating its final decision on the Initial EnvironmentalExecution Report (IEER) of the proposed Mini Hydro Project without callingfor an Environmental Impact Assessment Report (EIAR).
The decision to grant approval to the 4th Respondent was challengedon the basis of an IEER without calling an EIAR. This was on the basisthat the Technical Evaluation Committee (TEC) decided to rely only on theIEER.
HELD: (1) The Project Approving Agency has discretion to call for anIEER or an EIAR from the 4th respondent in order to decidewhether approval should be given. The law contemplatesthat such report has to be considered by the Project ApprovingAgency – CEA.
(2) When a statute requires the power to be exercised in a certainform the neglect of that form renders the exercise of the power“ultra vires."
TEC has no jurisdiction to decide whether an IEER or EIARis required for a specified project. The 1st respondent CEAhad failed to exercise its discretion reasonably and in goodfaith in discharging its public duty. The 1st respondent cannotin law surrender the discretion vested in to the TEC.
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(3) where a power is exceeded or abused any act done in suchexcess or abuse of the power is done without authority. The“ultra vires" doctrine effectively controls those who exceed orabuse the administrative discretion which a statute has given.
Per Sripavan. J.
‘This Court cannot issue a Writ of Mandamus directing the CEA to callfor an EIAR. The discretion to call for an EIAR or IEER has to be exercisedby the CEA (1 st respondent) only. Public orders made by public authoritiesare meant to have public effect and are intended to affect the conduct ofthose to whom they are addressed and must be construed objectively."
APPLICATION for a Writ of Certiorari/Mandamus.
Ms. Ruana Rajapakse with P. Rajakeeya for petitionerN. Wijesekare for 1st Respondent -Ms. Bimba Tilakaratne DSG for 2nd Respondent -Nalin Laduwahetty for 4th Respondent –
cur. adv. vult.
July 31,2006.
SRIPAVAN, J.
The petitioner is a non – governmental organization engaged inenvironmental activities and registered with the first respondent.Authority. The petitioner alleges that the first respondent acting interms of section 23 BB (4) of the National Environmental Act No.47 of1980 as amended, published a notice marked P4 indicating its finaldecision on the Initial Environmental Examination Report (hereinafterreferred to as the IEER) of the proposed Bomuruella Mini Hydro PowerProject at Perawella-, Nuwara Eliya. By the said notice, the firstrespondent informed the General Public that it has decided to grantapproval for the establishment of the said project to the fourthrespondent subject to certain specified terms and conditions.
The Petitioner in paragraph 10 of the petition states that upon request,it obtained a copy of the IEER which was in two parts. This fact wasnot denied or disputed by the first respondent. The said report dated3rd August 2003 is marked P5a and annexed to the petition. Thepetitioner’s complaint is that the decision of the first respondentAuthority to grant approval to the said project on the basis of an IEER
CA
Environmental Foundation Ltd. vs.
Central Environmental Authority and Others (Sripavan, J)
59
without calling for an Environmental Impact Assessment Report(hereinafter referred to as the EIAR) was arbitrary and unreasonable inview of significant environmental impacts of the project. Therefore, thepetitoner seeks a writ of certiorari to quash
the approval given for the said project by the first respondentAuthority as shown in the notice marked P4 and ;
the annual permit granted to the fourth respondent by thesecond respondent by letter dated 29,th April 2004 marked“X” and referred to in the document marked P8.
On 18th March 2005, the learned DSG appearing for the secondrespondent informed court that though a decision was taken to issuea permit to the fourth respondent by letter dated 29th April 2004 marked“X”, no such permit was issued. In view of the said submissions, learnedcounsel for the petitioner submitted that she was not seeking relief interms of paragraph “C” of the prayer to the petition. The writtensubmission filed by the second respondent also shows that since theproject area falls within the Kandapaha – Seetha Eliya Forest Reservewhich is in higher elevation and is an important catchment area, thesecond respondent was not inclined to grant the required annual permitin the absence of a proper EIAR. Therefore, the relief claimed by thepetitioner to quash the annual permit allegedly granted to the fourthrespondent by the letter dated 29th April 2004 marked "X” does notarise.
The first respondent in paragraph 12 of its statement of objectionscategorically pleads and annexes a copy of the minutes of the meetingheld at the Central Environmental Authority prior to granting of theapproval. The said document is marked “1R3” and produced along withthe statement of objections. The minutes indicate that the said meetingwas held on 10th July 2003 by the Technical Evaluation Committee(hereinafter referred to as the TEC). The members of the saidCommittee finally decided that an IEER was required to be preparedby the petitioner prior to the granting of any approval and that therewas no need to call for an EIAR.
In the light of the said averment contained in the statement ofobjections of the first respondent, it becomes relevant to consider thelegal provision, namely, section 23BB (1) of the said Act which readsas follows
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“It shall be the duty of all project approving agencies to require fromany Government department, corporation, statutory board, localauthority, company, firm or individual who submit any prescribed projectfor its approval to submit within a specified time an initial environmentalexamination report or an environmental impact assessment report asrequired by the project approving agency relative to such project andcontaining such information and particulars as may be prescribed bythe Minister for the purpose°(emphasis added)
Thus, the project approving agency has a discretion to call for anIEER or an EIAR from the fourth respondent in order to decide whetherapproval be given to a prescribed project. The law contemplates thatsuch report has to be considered by the project approving agency,namely the first respondent in this application. However, paragraph 12of the statement of objections of the first respondent shows that theTEC decided that IEER was sufficient to cover all the matters andconcluded that such a report was required to be prepared by the projectdeveloper prior to considering the approval.
Where a statute requires the power to be exercised in a certainform, the neglect of that form renders the exercise of the power ultravires. It has been the consistent approach of the court in the exerciseof its power of judicial review, that it will not interfere with the exerciseof a discretionary power vested in the executive or administrative agencyexcept on limited grounds. The court would not substitute its discretionfor that of the expert, but would interfere with its exercise, if it is soughtto be exercised in an arbitrary manner or in matters outside the limitsof the discretionary authority conferred by the legislature or onconsiderations extraneous to those laid down by the legislature. Thus,this court cannot issue a writ of mandamus directing the first respondentto call for an EIAR in respect of the said project. The discretion to callfor an EIAR or IEER has to be exercised by the first respondent andby the first respondent only. Any clear departure from the objects ofthe statute is objectionable and renders the act invalid inlaw. Publicorders made by public authorities are meant to have public effect andare intended to affect the conduct of those to whom they are addressedand must be construed objectively.
CA
Environmental Foundation Ltd. vs.
Central Environmental Authority and Others (Sripavan, J)
61
The TEC has no jurisdiction under the Act to decide whether anIEER or EIAR is required in respect of a prescribed project. The firstrespondent in my view has failed to exercise its discretion reasonablyand in good faith in discharging its public duty. The first respondentcannot in law surrender the discretion vested in it to the TEC. I thereforehold that the first respondent has failed to exercise its discretion ingranting its approval in the manner provided in section 23BB (1) of theAct.
The first respondent along with its statement of objections producedto court the approval given to the fourth respondent dated 20th October2003 marked 1R2. The second paragraph of the said letter containingthe approval is reproduced below
“This is to inform you that the Central Environmental Authority (CEA)after study of your responses to the Environmental Questionnaire dated3rd June 2003 and the subsequent letter from the Forest Departmentdatedl 2th October 2003 has decided to grant environmental clearancefor the above project subject to the conditions given below”
It is therefore abundantly clear that the first respondent granted theapproval after considering the following two documents
The environmental questionnaire dated 3rd June 2003; and
The letter from the Department of Forests dated 12th October2003.
This too demonstrates that the first respondent has failed to exerciseits power in terms of section 23 BB (1) considering the purpose forwhich such power was given. The environmental questionnaire dated3rd June 2003 could not be equated to an IEER or EIAR referred to insection 23 BB(1). The questionnaire seems to contain the preliminaryinformation on the proposed project. The IEER and /or EIAR mustcontain information and particulars as prescribed by the Minister forthe purpose of ascertaining serious environmental consequences ofthe project. Review by court of an act or decision of an administrative agencyhas always been based on an allegation that the agency has exceeded orabused its powers and has acted Ultra-Vires. When a power is
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exceeded or abused any acts done in such excess or abuse of thepower is done without authority. The ultra vires doctrine effectivelycontrols those who exceed or abuse the administrative discretion, whicha statute has given.
For the reasons stated, a writ of certiorari is issued quashing theapproval given for the said project by the first respondent as shown inthe public notice marked p4. The petitioner is entitled for costs in asum of Rs.10,000 payable by the first respondent.
SISIRA DE ABREW, J – / agree.
Application Allowed.
