Jayakody v. Kanmanayake, Officer-in-Charge.
SCPolice Station, Polgahawela and Attorney-General (Kulatunga, J.)271
KEANGNAM ENTERPRISES LTD.
v.ABEYSINGHE AND OTHERS
COURT OF APPEAL.
ANANDA GRERO, J.
CA NO. 259/92.
M.C. KURUNEGALA NO. 55907/91.
National Environmental Act, No. 47 of 1980 as amended by the National■Environmental [Amendment} Act, No. 56 of 1988 ss. 23A, 23B and 29 -•Environmental Protection Licence – Code of Criminal Procedure Act, No. 15 of' 1979, ss. 98(1) and 104(1) – Jurisdiction of Magistrate – Rule 46 of the SupremeCourt Rules.
The Petitioner-Company had established a metal quarry, a metal crusher and apremix plant at a site taken on lease for developing and rehabilitating theAmbepussa – Dambulla – Anuradhapura road: The Informant-Respondents'complained of a public nuisance created by the Petitioner-Company. TheMagistrate granted an injunction restraining the operation of the quarry under
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section 104(1) of the Code and also entered a conditional order under section98(1) of the Code for the removal of the public nuisance caused by the quarry.
The Magistrate had jurisdiction to make the orders complained of under ChapterIX of the Code of Criminal Procedure Act, No. 15 of 1979 because at the time thequarrying was commenced and the matter was heard the Petitioner-Companyhad not obtained an Environmental Protection Licence from the CentralEnvironmental Authority as required by section 23A of the National EnvironmentalAct No. 47 of 1980 as amended by Act No. 56 of 1988. The Pradeshiya Sabhaspermission to have and maintain a metal quarry and a metal crusher is notenough.
By the time the application for revision was taken up the Petitioner-Company hadobtained the requisite licence but this will not legalise the earlier illegality ofquarrying without the licence.
II the Petitioner-Company had the Environmental Protection Licence at the timewhen the Informant-Respondents complained to the Magistrates' Court, then theMagistrate would have had no jurisdiction to entertain and determine theapplication (section 29 of the National Environmental Act.). As the Petitioner-Company has the licence now it can make the appropriate application to theMagistrate.
Under Rule 46 of the Supreme Court Rules only material documents need be filedalong with an application for revision.
Case referred to:
1. Kiriwantha and Another v. Navaratne and Another S.C. Application No. 628/88.
APPLICATION for revision of the order of the Magistrate of Kurunegala.
H. L. de Silva PC. with O. S. Wijesinghe P.C. and Anil Silva for Petitioner-Company.
Lalanath de Silva with Preethi Raj Perera for informant-respondents.
S. J. Jayanaga with Rohana Jayasekera for 9-12 aggrieved-party-respondents.
Cur. adv. vull.
August 26, 1992.
ANANDA GRERO, J.
This is an application for revision made by the Respondent -Petitioner to this court seeking the following reliefs:-
CA | Keangnam Enterprises Ltd v. Abeysinghe and Others (Ananda Grero, J.) 273
To set aside the orders made by the learned Magistrate ofKurunegala dated 18.12.91 and 26.3.92.
To dismiss the application of the Informant-Petitioners.
To stay the operation of the ex parte injunction dated
and the inquiry fixed for 30.4.92 pending thehearing and determination of this application.
When this matter came up for the first time before this Court on
the petitioner reserved his right to pursue the interim relief hesought in paragraph (d) of the prayer (i.e. to stay the operation of theex parte injunction dated 18.12.91, and the inquiry fixed for 30.4.92till the determination of this application) to the petition on a futuredate. On that day, this Court issued notices on the Informant-Respondents.
On 22.4.92, when this matter came up before this Court, on anapplication made by the Counsel for the petitioner, an order wasmade, directing the Magistrate of Kurunegala not to hold the inquiryfixed for 30.4.92, until the final determination of this application. Butup to date, no order has been made to stay the operation of the exparte injunction issued by the Magistrate of Kurunegala dated
The respondent-petitioner (also referred to as Petitioner-Company)had established a metal quarry, a metal crusher, and a premix plant,at a site taken on lease by the Petitioner-Company in July 1991.Thereafter, the Petitioner-Company states that after obtaining therequisite permits and/or licences from the various statutory authoritiesit commenced blasting operations on 1.9.91, and had employedabout 850 employees and the metal obtained from the said quarrywas used for the purpose of developing and rehabilitating theAmbepussa-Dambulla-Anuradhapura road.
The Informant-Respondents on 18.12.91, filed papers in theMagistrate’s Court of Kurunegala complaining of a public nuisancecreated by the Respondent-Petitioner, by the operation of the saidquarry, and sought reliefs under Sections 98(1) and 104(1) of theCode of Criminal Procedure Act No. 15 of 1979. The learnedMagistrate having heard the Counsel for the Informant-Respondents,
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and after considering the affidavits and the petition filed by them, andalso after examining the documents filed along with the petition,granted an injunction restraining the operation of the quarry (underSection 104(1) of the Code) and also entered a conditional order(under Section 98(1) of the Code) for the removal of a publicnuisance caused by the said quarry.
Thereafter, on 31.12.91 the Administration Manager of theRespondent-Company filed his objections which is marked andproduced as P8. and for the reasons contained therein, stated thatthe Magistrate had no jurisdiction to make any order under ChapterIX of the Code of Criminal Procedure Act No. 15 of 1979, and that theapplication made to the Magistrate’s Court was misconceived.
On 16.1.92, when the conditional order made under Section 98(1)and the injunction issued under Section 104(1) of the Code ofCriminal Procedure Act were served on the Petitioner-Company, itfiled its objections on 17.1.92 which is marked and produced as P10,and for the averments stated therein took up the position thatMagistrate had no jurisdiction to make any order under Chapter IX ofthe Code, and that he should not consider the application of theInformant-Respondents.
The Road Development Authority at a later stage sought tointervene as a party, and its intervention was allowed by the learnedMagistrate, and the said Authority was made an added Respondent-Respondent to the case before the Magistrate. Further at a laterstage four workmen under the Petitioner-Company, sought thepermission of the learned Magistrate to intervene, and he by hisorder dated 6.3.92, allowed their application, and they were addedas 9th, 10th, 11th and 12th, Aggrieved-Party-Respondents to thecase before him.
Thereafter, on 14.2.92, submissions were made on behalf,of thePetitioner-Company regarding the question of jurisdiction of theMagistrate's Court to make orders under Chapter IX of the Code ofCriminal Procedure Act. The Added-Respondent-Respondent andthe Aggrieved-Party-Respondents too agreed with the submissionsmade by the Counsel for the Petitioner-Company, that theMagistrate's Court had no jurisdiction to inquire into the application ofthe Informant-Respondents,
CA Keangnam Enterprises Ltd. v. Abeysinghe and Others (Ananda Grero, J.) 275
It appears from the submissions made before the learnedMagistrate by the learned Counsel for the Petitioner-Company, that hehad relied upon the provisions of the National Environmental Act, No.47 of 1980 as amended by Act, No. 56 of 1988. According to him, theprovisions of the said Act had taken away or ousted the ordinaryjurisdiction of the Magistrate under Chapter IX of the Code ofCriminal Procedure Act and with regard to any environmentaldamage caused, then the remedy available for the Informant-Respondents is to resort to the remedies provided by the said Act,and not to resort to the provisions of Chapter IX of the Code. Itappears that the attention of the learned Magistrate had been drawnto Section 29 of the said National Environmental Act by the learnedCounsel for the Petitioner-Company when he made his submissions.The said section reads as follows:-
"The provisions of the Act shall have effect notwithstandinganything to the contrary in the provisions of any other written law,and'accordingly in the event of any conflict or inconsistencybetween the provisions of this Act and the provisions of such otherwritten law, the provisions of this Act shall prevail over theprovisions of such other written law.”
There had been some other submissions made by the learnedCounsel for the Petitioner-Company before the learned Magistrate asaverred in its Petition; but the contention or the main submission wasthat the learned Magistrate had no jurisdiction to make orders underChapter IX of the Code of Criminal Procedure Act, in view of theprovisions of the National Environmental Act.
The Informant-Respondents in reply to the submissions made onbehalf of the Petitioner-Company, submitted to Court writtensubmissions (marked P11) and had taken up the position that theMagistrate’s Court has jurisdiction to hear, determine, and to makeorders, under Chapter IX of the Code of Criminal Procedure Act andits jurisdiction has not been ousted by the National EnvironmentalAct. ,
It must be noted that the aforesaid submissions were made by therespective parties, not before the Magistrate who made the ordersunder Section 98(1) and Section 104(1) of the Code dated 18.12.91,but before his successor in office. The said Magistrate by his order
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dated 19.3.92 had rejected the objection raised by the Petitioner-Company and the other parties that the Magistrate's Court has nojurisdiction to make orders regarding the application of the Informant-Respondents, and fixed the matter for inquiry under Section 101(1) ofthe Code of Criminal Procedure Act.
Thereafter the Respondent-Petitioner made an application forRevision to this Court and sought the reliefs mentioned earlier in thisorder. The Informant-Respondents filed their objections and for theaverments contained therein prayed that the application of theRespondent-Petitioner be dismissed with costs. The Aggrieved-Party-Respondents too filed an affidavit and sought the assistance of thisCourt to have the matter resolved very early so as to enable them tocontinue in their employment.
At the inquiry before this Court, the primary issue that arose fordetermination was, whether the Magistrates jurisdiction to entertainthe information of the Informant-Respondents and to make ordersunder Chapter IX of the Code of Criminal Procedure Act had beenousted by the provisions of the National Environmental Act?
In regard to the said issue, the parties concerned made theirsubmissions both oral and written through their attorneys-at-law.
In the Statement of objections filed by the Informant-Respondentsthey have taken up the position that contrary to the instructionsissued by the Central Environmental Authority as indicated in P5, thePetitioner-Company had commenced quarrying without anEnvironmental Protection Licence as required by law. That noEnvironmental Protection Licence has been issued by the CentralEnvironmental Authority even at the date of filing their objections andin proof of that fact they had tendered to this Court a letter dated
from the said Authority marked 1R1. They further stated in theirstatement of objections, that in paragraph 10 of the complaint madeto the Magistrate's Court dated 18.12.91, they had clearly stated thatthough the Authority had only granted a site clearance for the project,it had not issued an Environmental Protection Licence to thePetitioner-Company. (Vide paragraph 7(c), (d) and (e) of theStatement of Objections).
CA Keangnam Enterprises Ltd. v. Abeysinghe and Others (Ananda Grero, J.) 277
When this matter came up for inquiry on 22,6.92 before this Court,the learned Counsel for the Petitioner-Company submitted a letterfrom the Central Environmental Authority marked X, dated 19.6.92,and the Environmental Protection Licence issued by the Director-General, Central Environmental Authority dated 19.6.92, marked X(1).The learned Counsel for the Informant-Respondents objected to thesaid licence being produced at that stage; but this Court acceptedthe same subject to his objections.
The said licence had been issued to the Petitioner-Company bythe aforesaid Authority to be in force from 19th June 1992 to 18thJune 1993.
The learned Counsel for the Informant-Respondents submitted tothis Court that at the time the learned Magistrate made his conditionalorder with regard to the removal of nuisance under Section 98(1) ofthe Code, and granted an injunction under Section 104(1) of theCode restraining the operation of the quarry in question, there was nolicence granted by the Central Environmental Authority to thePetitioner-Company.
He also drew the attention of this Court to P5, a letter that has beensent to the Special Commissioner, Kurunegala Pradeshiya Sabha, bythe Director. Central Environmental Authority dated 10.7.91 and saidthat the Petitioner-Company had violated or acted contrary tocondition 14 of the said letter. The said condition 14 says:-
“ln accordance with the section 23(A) of the NationalEnvironmental Amendment Act No. 56 of 1988, anEnvironmental Protection Licence Shall be obtained by thedeveloper to carry out operations. The developer shall submitan application for the said licence to the CentralEnvironmental Authority one month prior to thecommencement of manufacturing operations”.
He further contended that the Petitioner-Company had actedcontrary to Section 23(A) of the National Environmental Act. The saidSection reads as follows
“With effect from such date as may be appointed by the Ministerby order published in the Gazette, (hereinafter referred to as the278
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‘relevant date"), no person shall discharge, deposit, or emitwaste into the environment which will cause pollution except –
under the authority of a licence issued by the Authority andin accordance with such standards and other criteria asmay be prescribed under this Act”.He therefore contended that the commencement of metalmanufacturing operations by the Petitioner-Company withoutobtaining the most requisite licence from the Authority was an actcontrary to the aforesaid provisions of Section 23(A) of the Act, andCondition 14 of P5, and such operations are illegal.
The learned counsel for the Petitioner-Company, when he madehis oral submissions admitted, that there is a breach of condition 14of P5, but contended, that it is not a thing that the Informant-Respondent could complain of a nuisance, as they have done in thiscase.
It is crystal clear, that at the time the Informant-Respondentcomplained of a public nuisance to the learned Magistrate underChapter IX of the Code of Criminal Procedure Act, there was noEnvironmental Protection Licence issued to the Petitioner-Companyby the Central Environmental Authority. Even at the time the learnedMagistrate considered the application of the Informant-Respondents,and made orders under Section 98(1) and 104(1) of the Code ofCriminal Procedure Act, the Petitioner-Company was without alicence granted by the Authority. Even when the learned Magistratemade his subsequent order dated 19.3.92 (which was delivered on26.3.92), the Petitioner-Company was still without a licence issued bythe Authority. It is only after the application for Revision was filedbefore this Court, the Petitioner-Company was able to get a licencefrom the Authority. No doubt the Petitioner-Company had made anapplication for such a licence on 3.7.91. But making an applicationdoes not mean that there was sufficient compliance with Section32(A) of the Act. The licence issued by the Authority (X(1)) is in forcefrom 19.6.92 to 18.6.93, and it does not relate back to the date ofapplication, i.e. 3.7.91. Therefore, it could be seen that when thePetitioner-Company commenced metal manufacturing operations itwas without a licence granted by the Authority in terms of Section23(A) of the Act.
CA Keangnam Enterprises Ltd. v. Abeysinghe and Others (Ananda Grero, J.) 279
The necessity to have a licence from the Authority to carry outoperations is further established, when this Court considers condition14 of P5. The said P5 is a letter sent by the Director, CentralEnvironmental Authority, to the Special Commissioner, KurunegalaPradeshiya Sabha, informing him that the Authority has no objectionfor the establishment of a project (i.e. a metal quarry, metal crusherand a premix plant) at the proposed site subject to 14 conditionsstated therein. One of such conditions is that in accordance withsec. 23(A) of the National Environmental Amendment Act, No. 56 of1988, the Environmental Protection Licence shall be obtained by diedeveloper to carry out operations.
;To obtain a licence from the Authority is mandatory both under theprovisions of Section 23(A) of the Act, and condition 14 of P5, inorder to carry out operations of the quarry in question. But no licencehas been obtained by the Petitioner-Company from the Authority asaforesaid, when it commenced the operations of the metal quarry.
■The Petitioner-Company relies more particularly on P5, and P6 inorder to show that it commenced operations with the leave andlicence of various authorities. P3 is a permit granted by theGovernment Agent Kurunegala under the Explosives Act No. 21 of1956 to the Petitioner-Company to possess and use the quantity ofexplosives stated in the said permit. P6, is a letter issued by theChairman of Kurunegala Pradeshiya Sabha, dated 10.7.91, wherebyhe: had given permission to the Petitioner-Company to have andmaintain a metal quarry, and a metal crusher at the proposed site forthe year 1991 subject to 16 conditions stated therein. P6 reveals thatit had been issued by the Chairman of the Pradeshiya Sabha, in asequel to the application made by the Petitioner-Company for apermit to have a quarry and a metal crusher for the year 1991.Nowhere in P6, is it stated that permission is given to the Petitioner-Company to have and maintain a metal quarry, and a metal crusher,by ;virtue of the power delegated to the Pradeshiya Sabha by theAuthority. Pure and simple, P6 grants to the Petitioner-Company, thePradeshiya Sabha's permission, to have and maintain a metal quarryand a metal crusher, at the proposed site as the sabha had beensatisfied with the application of the Petitioner-Company. The saiddocuments (P3, P5, P6) and other documents like P7A, P7B and P73cannot be equated to the licence granted by the Authority ascontemplated in Section 23(A) and 23(B) of the Act.
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The commencement of operations of the quarry and the metalcrusher on the strength of P6 cannot be equated to suchcommencement of operations after the receipt of a licence grantedby the Authority under the provisions of Section 23(A) and 23(B) ofthe Act. The most fundamental requirement is to get a licence fromthe Authority, because according to the provisions of the Act to havesuch a licence is mandatory. This Court is of the view that in order toinvoke the provisions of the Act, the Petitioner-Company shouldpossess a licence granted by the Authority. It is only the licencegranted by the Authority in terms of the Act which paves the way tothe Petitioner-Company to rely upon the provisions of the Act, when itappeared before the learned Magistrate, through its AdministrationManager in connection with the application made by the Informant-Respondent, and made its submissions (before the Magistrate) thatthe learned Magistrate had no jurisdiction to act under Chapter IX ofthe Code, and make the orders under Sections 98(1) and 104(1) ofthe Code.
As stated earlier the Petitioner-Company was not possessed of alicence granted by the Authority at the time the learned Magistratemade his orders under Chapter IX of the Code. It did not possesssuch a licence granted by the Authority when submissions weremade on its behalf before the learned Magistrate that his ordinaryjurisdiction under Chapter IX of the Code had been ousted by virtueof Section 29 of the Act. Even at the time the learned Magistratemade order rejecting the objection raised by the Petitioner-Companyit did not have a licence granted by the Authority. No doubt P6 was inforce at that time; but based on that the Petitioner-Company cannotinvoke the provisions of the Act. If the Petitioner-Company had thelicence granted by the Authority at the time the Informant-Respondents made their application to the Magistrate’s Court, and atthe time the learned Magistrate made his orders, and whensubmissions were made on behalf of the Petitioner-Company that thelearned Magistrate had no jurisdiction to entertain and make adetermination on such application, then it could be held that thePetitioner-Company was entitled to invoke or rely upon the provisionsof the Act; but not otherwise. In the circumstances, it could not beheld that the learned Magistrate had no jurisdiction to entertain andmake orders under Chapter IX of the Code in view of the provisions ofthe Act; and more particularly in view of Section 29 of the Act.
Keangnam Enterprises Ltd. v. Abeysinghe and Others
(Ananda Grero, J.)
Even under P6, the Petitioner-Company had been allowed to haveand maintain a quarry and a metal crusher and to carry outoperations, strictly according to the conditions stated therein. If acondition is violated or conditions are violated and such violationbecomes a nuisance to the people living in the neighbourhood,would it then not be possible for such people to make an applicationunder the provisions of Chapter IX of the Code to abate suchnuisance? This Court is of the view that they can.
According to 1R16, an Informant-respondent (1st Informant-respondent) had written to the Director of Central Environmental.Authority complaining that the metal crusher operates till 10 p.m.,and as a result it has become a nuisance to the people living in thatarea. The same Informant-respondent had written a letter (1R17) tothe Chairman, Pradeshiya Sabha complaining that the metal crusheroperates till late at night. In fact according to condition 2 of P6, theoperations could only be carried out between 6 a.m. and 6 p.m., andthis requirement has to be compulsorily adhered to. The aforesaid1R16 and 1R17 reveal that the said condition had been violated. Anexamination of the affidavits submitted to the Magistrate’s Court(marked and produced 1R3 to 1R8) by the Informant-respondentreveal that they were complaining of a nuisance that arose as a resultof: an environmental pollution created due to the commencement ofoperations by the Petitioner-Company. This environmental pollutionhad taken place at a time when the petitioner-Company had notobtained an Environmental Protection Licence from the relevantAuthority under the provisions of the Act. In other words when it hadacted contrary to condition 14 of P5. 1R16 reveals that on behalf ofthe affected parties (people who suffered due to the environmentalpollution) the 1st named Informant-respondent had complainedabout this environmental pollution to the Director-General of theCentral Environmental Authority to take necessary action. At last theInformant-respondents had gone before the Magistrate's Court ofKurunegala and sought relief under Chapter IX of the Code. This inshort is the history of this case.
All the aforesaid steps have been taken at a time when thePetitioner-Company did not possess a licence issued by the Authorityunder the provisions of the Act. Under such circumstances, thelearned Magistrate is not prevented from making orders under
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Chapter IX of the Code if he is satisfied with the information furnishedby the Informant Respondents regarding the nuisance which theycomplained of. The learned Magistrate had acted under theprovisions of Chapter IX of the Code, at a time when thePetitioner-Company could not invoke or rely upon the provisionsof the Act as it had not got the required licence from the CentralEnvironmental Authority. In the circumstances, it cannot be heldthat the learned Magistrate had made the orders in question withoutjurisdiction to do so. Also for the reasons stated above, this Courtcannot agree with the contention of the learned Counsel for thePetitioner-Company, that although there was a breach of condition 14of P5, yet it is not a ground for the Informant-Respondents to havecomplained of a nuisance as done by them in this case.
The Petitioner-Company is now in possession of the licencegranted by the Authority as contemplated in Section 23(A) and 23(B)of the Act. It could now go before the learned Magistrate and place itbefore him, and make submissions based on the provisions of theAct, and would be able to ask him to annul the orders, made by him.For that, the opportunity is already afforded by the learned Magistrateby fixing the matter for inquiry under Section 101 of the Code ofCriminal Procedure Act.
In the aforesaid circumstances, I do not think that this Court shouldexercise its revisionary powers to revise the orders made by thelearned Magistrate, and therefore the application of the Petitioner-Company for revision is hereby dismissed with costs.
In view of the aforesaid decision arrived at by this Court on thebasis of the reasons stated earlier in this order, this Court is of theview that the necessity does not arise at this stage to consider othermatters raised at this inquiry by the respective parties (including theAdded-Party Respondents) to this application except one matterraised by the Informant-respondents.
The learned Counsel for the Informant-respondents submitted tothis Court that the petitioner-Company has failed and neglected to file17 documents marked along with its revision application. He saysthat these documents marked P1 to P17 by the Informant-Respondents in the Magistrate's Court of Kurunegala, have been
Keangnam Enterprises Ltd. v. Abeysinghe and Others
(Ananda Grero, J.)
suppressed by the Petitioner-Company in violation of Rule 46 of thethen Rules of the Supreme Court and the current Rule 3 of the Courtof Appeal. He cited a few decisions of the Supreme Court and theCourt of Appeal to show that this Court has the power to dismiss therevision application of the Petitioner-Company in limine for non-compliance of the said Rule. Rule 46 of the Supreme Court requiresthat an application for Revision should be made by way of petitionand affidavit accompanied by originals of documents material to thecase or duly certified copies thereof in the form of exhibits.
In a more recent case namely Kiriwanthe and Another v.Navaratne and Another (S.C. Application No. 628/88) the SupremeCourt held that all these rules must be complied with, and the lawdoes not require or permit an automatic dismissal of the applicationor appeal of the party in default. The consequence of non-compliance is a matter falling within the discretion of the Court to beexercised after considering the nature of the default, as well as theexcuse or explanation thereof, in the context of the object of theparticular Rule.
The .learned counsel for the Petitioner-Company submitted to thisCourt that the issue before this Court is, to find out whether theMagistrate had no jurisdiction to entertain the information of theInformant-respondents, having regard to the provisions of theNational Environmental Act. To decide that issue, he contended, thatthe documents referred to by the learned counsel for the Informant-respondents are not material, and are unnecessary. Therefore, hesaid that those documents were not filed along with the applicationfor revision. This Court agrees with the said contention of the learnedCounsel for the Petitioner-Company and considering the purpose ofthe said Rule 46 and the decision of Kiriwanthe's case. I am of theview that there is a substantial compliance of this rule by thepetitioner Company when it filed its application before this Court.Hnthe circumstances, the application for revision should not bedismissed in limine. But for the reasons stated earlier, the applicationfor'revision is hereby dismissed with costs.