049-SLLR-SLLR-2006-V-1-VISHVANATH-vs.-DIVISIONAL-SECRETARY-MADHRAWALA-AND-OTHERS.pdf
369
SCVishvanath vs
Divisional Secretary, Madhurawala and Others (Bandaranayake, J.)
VISHVANATHvs
DIVISIONAL SECRETARY, MADHURAWALA AND OTHERSSUPREME COURTBANDARANAYAKE, JWEERASURIYA, J ANDFERNANDO, J
SC (FR) APPLICATION NO. 174/20038TH OCTOBER, 28TH JANUARY, 2004,
27TH MAY, 13TH JULY, 22ND AUGUST, 2005 AND 5TH JANUARYAND 1 ST FEBRUARY, 2006
Fundamental Rights — Article 12(1) of the Constitution — Authority to operatea stone quarry in 2002 — Delayed due to protests by neighbours andproceedings in the Provincial Council on a petition — Refusal of renewal ofauthority after2002—Justified by protests of neighbours who were affected—Refusal not arbitrary.
After consideration by different authorities namely 1st to 6th respondents,the petitioner was given authority and a trade permit to operate a stone quarryfor 2002. Then the 1st respondent (Divisional Secretary) directed him to
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suspend the work on the stone quarry as the matter was being considered bythe Western Provincial Council on a petition by 7th to 20th respondents.Thereafter when he applied for a renewal of the authority including a permitunder the Explosives Act, the 2nd respondent District Secretary informed himthat due to protests by neighbors and the harm to the environment, thepetitioner’s authority will not be renewed.
HELD:
The refusal to extend the petitioner’s authority was not arbitrary andwas justified by the protests of (neighbours) affected parties andenvironmental considerations.
There was no infringement of the petitioner’s rights under Article 12(1)of the Constitution.
Cases referred to:
E.P. Royappa vs State of Tamil Nadu – (1974) Air (SC) 555
Jayawardena vs Akmeemana Pradeshiya Sabha and Others – (1998) 1Sri LR 316
Gabcikovo vs Nagymaros – Project Environmental Aspects of Sri Lanka'sAncient Irrigation System, Sarvodaya Vishva Lekha Publishers page 27.
APPLICATION for relief for infringement of fundamental rights
Saliya Pieris with A. Devendra for petitioner.
Rajiv Gunatillake, State Counsel for 1st to 4th and 21st respondents.
Upul Jayasuriya with P. Radhakirishna for 5th and 6th respondents.
Sunil A de Silva for 7th to 9th and 11th to 20th respondents.
Cur.adv.vuit.
February 17,2006
SHIRANIA.BANDARANAYAKE, j.‘ The petitioner came before this Court alleging that his fundamentalrights guaranteed in terms of Articles 12(1) and 14(1 )(g) of the Constitutionwere infringed as the 2nd and 3rd respondents had refused to renew hispermit under the Explosives Act and the 5th and 6th respondents hadrefused to renew the trade permit in respect of the petitioner's quarry.
According to the petitioner he had made an application to the 1strespondent seeking permission to operate a quarry in his land situated at
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Ballapitiya. The 1 st respondent had referred this application to the GramaNiladhari of Ballapitiya (West) Division and to the Environmental Officer ofthe Divisional Secretariat, Madhurawala. Both officers had recommendedthe said application. Thereafter, the said application was forwarded to the4th respondent by the 1st respondent for necessary approval Arepresentative of the 4th respondent had inspected the site and after con-ducing several tests had granted the petitioner a permit for a term of oneyear commencing from 21.06.2001 (P4). The petitioner’s contention isthat according to the aforesaid permit (P4) he was granted permission tooperate a quarry in a portion of his land depicted as Lot B of the Planbearing No. 538B dated 05.05.1962. According to the conditions set outin the said permit (P4) the petitioner was required to obtain anEnvironmental Protection License (EPL) from the Central EnvironmentalAuthority (hereinafter referred to as the CEA) prior to commencing opera-tions in the quarry. The petitioner had therefore made aij application to theCEA seeking an Environmental Protection License. The CEA had visitedthe site, had conducted several tests and had granted an EnvironmentalProtection License in terms of Chapter 23A of the National EnvironmentalAct, No. 47 of 1980 for a period of three years commencing from 31.08.2001(P5). Thereafter the petitioner had made an application to the 5th respon-dent for a trade permit. The 5th respondent had referred the said applica-tion to a Health Officer for an inspection of the site. A Public Health In-spector had visited the site and had submitted a report and the 5th re-spondent had issued a trade permit for the year 2002 (P6). Thereafter thepetitioner had made an application to the 3rd respondent for a permitunder the Explosives Act, which was issued in January 2002 after obtain-ing reports from the 1 st respondent and the Grama Niladhari of the area.
The petitioner averred that thereafter he had commenced developing thenecessary infrastructure to quarry the land and for that purpose he had prepareda building plan and obtained permission from the 5th respondent to install ametal crusher at the site. After obtaining the approval for the building plan, thepetitioner had made an application for the supply of electricity from the CeylonElectricity Board for which he had paid Rs. 82,697 (P8, P9, P10 and P11).
According to the petitioner, while he was developing the infrastructurefacilities at the site, the 7th to 20th respondents established an organizationknown as ‘Environment Protection Organization’ and launched a protestcampaign against the petitioner’s business, alleging that it would causeenvironmental pollution. Thereafter this dispute was brought to the noticeof the Public Petitions Committee of the Western Provincial Council by amember of the Provincial Council. By letter dated 24.01.2002 the 1strespondent had informed the petitioner to refrain from operating the quarrysince the matter was pending before the Public Petitions Committee ofthe Western Provincial Council (P12).
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An inquiry was held and the report of the said inquiry was forwarded tothe 1 st respondent by the Public Petitions Committee informing that sincethe petitioner had obtained permits for his business, the Public PetitionsCommittee had no objection in respect of the petitioner’s business (P16).Thereafter by letter dated 28.05.2002 the 1 st respondent had informed thedecision of the Public Petitions Committee and had revoked P12 (P17).
According to the petitioner, by this time the permit granted under theExplosives Act and the permit granted by the 4th respondent had expiredand he had to obtain new permits, which were issued by the 3rd and 4threspondents (P18A and P18B). The permit under the Explosives Act wasvalid from August 2002 to November 2002, (P18A) while the permit forIndustrial Mining was valid for one year with effect from 21.06.2002 (P18B).
The petitioner thereafter had made applications to renew his permits forthe year 2003. By his letter dated 13.03.2003, the 2nd respondent hadinformed the petitioner that he would not be granted the permit under theExplosives Act as the 1 st respondent had not recommended the petitioner’sapplication due to the protest by the 7th to 20th respondents and that ifthe quarry is to be operative, it would interfere with the biological, physical,social, economical and cultural patterns of the area (P31). Further thepetitioner averred that although he had made an application to the 5threspondent to renew his trade permit in January 2003, he had not receiveda reply, but the 5th respondent is declining to issue the trade permit.
The petitioner averred that he had spent around Rs. 450,000 for thepurpose of purchasing the land, for infrastructure development, to obtainpermits and licenses, to obtain the connection for three-phase electricityand for the purchase of explosives.
The petitioner accordingly averred that the decisions of all the relevantrespondents in refusing to issue a permit under the Explosives Act andthe refusal and/or suspend the trade permit for the year 2003 are illegal,arbitrary, unlawful and unreasonable.
This Court granted leave to proceed for the alleged infringement of Article12(1) of the Constitution.
The Petitioner’s complaint is mainly against the 2nd and 3rd respondentsfor not issuing a permit under the Explosives Act and the 5th and 6threspondents for not issuing a trade permit for the year 2003.
The 2nd and the 3rd respondents’ contention was that they had faceddifficulties in renewing the explosives license as there had been protests
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by the people of the area, who were residing in and around the petitioner’squarry. The residents were complaining of the adverse effects the operationof the quarry would have on their environment and the safety of themselvesand their children. Referring to the report on their environment, the residentshad shown deep concern of the effects of the operation of the quarry onthe natural surroundings, peace and tranquility that prevailed in and aroundtheir residences as well as the historical value of the area, where the saidquarry was to operate. In view of these complaints made by the residentsit had become necessary for the 2nd and 3rd respondents to re-evaluatethe decision to renew the explosives license.
Learned State Counsel for the 1 st to 4th and 21 st respondents submittedthat for the commencement of a quarry it was necessary for the petitionerto fulfil the following:
a permit from the Geological Survey and Mines Bureau;
an environment protection license issued by the CEA;
a trade permit from the Local Authority to carry out the business ;
an explosives permit to carry out the work in the quarry.
For the purpose of operating a quarry as well as for carrying out theblasting operations it would be necessary to have all the aforementionedpermits and licenses issued by different authorities, which had been ob-tained by the petitioner. Learned State Counsel submitted that the pur-pose of requiring permits and licenses for various activities revolves aroundthe three concepts of regulation, revenue and renewal. The contention ofthe petitioner was that since he had fulfilled all the necessary require-ments at the time he applied for all the permits and licenses and moreoveras all the relevant authorities had granted the required permits and li-censes, that he is entitled to get the relevant permits and licence re- .newed, subject to the payment of relevant renewal fees. His position wasthat if it is a matter of renewal of a permit or a license, then he would beautomatically entitled for such renewal.
Learned State Counsel for the 1st to 4th and 21st respondentscategorically stated that renewal of permits and licenses are not doneeither automatically or as of right. His contention was that the threeconcepts, viz., regulation, revenue and renewal are interconnected. Whenan application is made for a specific purpose, the kind of activity is regulatedto ensure that it is not harmful. After the issuance of the permit when anapplication is made for renewal, it would be necessary for the relevantauthorities to asses the suitability of granting the requested permits andlicenses.
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Considering the aforementioned submission, it is evident that since theactivity of the petitioner in question was directly linked with the question ofenvironmental pollution that it became necessary for the respondents tore-consider the effects of the blasting operations prior to taking a decisionin renewing the necessary licenses and permits to carry out a quarry bythe petitioner. Moreover, it is also necessary to take into consideration the1 st respondent1 s averment that the residents of the area in and around thequarry had held demonstrations and had launched poster campaignsagainst the petitioner’s activities and had forwarded complaints to the 1 strespondent and other authorities for permitting the petitioner to operatethe quarry (1R1).
It was in the backdrop of the aforementioned circumstances that theauthorities involved in issuing the relevant permits had to re-assess andre-evaluate the possibility of renewing the permits and licenses issued tothe petitioner.
Thus the question that has to be considered by this Court would be asto whether the allegations made by the petitioner, being the decision ofthe 1 st to 6th respondents not renewing his licenses and deciding to carryout further assessments, would be in violation of his fundamental rightguaranteed in terms of Article 12(1) of the Constitution.
Article 12(1) of the Constitution deals with the right to equality andstates that,
11 “All persons are equal before the law and are entitled tothe equal protection of the law.”
Article 12(1) thus embodies a guarantee against arbitrariness in thedecision making process as in Article 14 of the Indian Constitution. Referringto Article 14 in E. P. Royappa v State of Tamil Nadi/'> it was stated that,
“The basic principle which, therefore, informs both Ar-ticles 14 and 16 is equality and inhibition against discrimi-nation We cannot countenance any attempt to trun-
cate its all embracing scope and meaning, for to do so wouldbe to violate its activist magnitude. Equality is a dynamicconcept with many aspects and dimensions and it cannotbe ‘cribbed, cabined and confined’ within traditional and doc-trinaire limits. From a positivistic point of view, equality isantithetic to arbitrariness.”
In such circumstances it would become necessary to consider notonly the allegations made by the petitioner, but also the grievances of the1st to 6th respondents, the 7th to 20th respondents and the villagers ofthe area, thus making it necessary to consider the effects of the blastingand the operation of the quarry of the petitioner. The grievances of the
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residents based on the aforementioned grounds were three fold, whichincluded the destruction to the road, damage to their residences and thedamage to the environment.
Access to the quarry was from the only approach way available to theresidents of the area. This road is a narrow 8 foot road, which had houseson both sides. The District Land Usage Planning Officer, Kalutara hadindicated in his report that, mining or quarrying could cause soil erosionand that the road was not suitable for use by heavy vehicles, which wouldbe used for transport to and from the quarry (1R4). The report of theGeological Survey and Mines Bureau dated 13.03.2004 had observed thatthe houses in the vicinity of the quarry were those made of mud walls. Theresidents were concerned that continuous and consistent blasting over aprolonged period of time might cause the walls of the houses, especiallymade out of mud, to crack and later collapse.
More importantly it is to be borne in mind that several representationswere made by the residents to state that there is a natural rock formationin the area and that caves in the area would be destroyed and theunderground water table could be affected as a result of the operation ofthe quarry (1R4). Accordingly the stability of the surroundings would bethreatened by way of earth slips. The culmination of all the aforementionedfactors, according to the contention of the 7th to 20th respondents, wasthe damage to their environment in an irreparable manner.
Leaned Counsel for the petitioner contended that if the 1st to 6threspondents were to refuse the grant of permits to the petitioner to carryout blasting operations and to operate the quarry, why was he given thepermits in the first instance, which decision had caused him financial lossas he now has to abandon his business venture.
As correctly pointed out by the learned State Counsel for the 1 st to 4thand 21 st respondents, the question at issue is not the cancellation of thepermits, but the refusal by the relevant authorities of their renewal. Thepermit for blasting operations under the Explosives Act and the trade permit,as referred to earlier was issued only for a limited period. At the end of thestipulated duration, if it becomes necessary, the applicant would have toapply for the renewal of the licence and/or the permit. At the stage ofrenewal the relevant authorities would have to take into account anassessment based on the impact on the environment due to the actionstaken on the basis of the permit given to him. As correctly stated by thelearned Counsel for the 5th and 6th respondents, the issuance of a tradepermit is not for the mere purpose of tax collection, as it entails an immensestatutory responsibility on the part of the local authority in protecting andpromoting the comfort, convenience and welfare of the people within itsarea of administration.
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It is to be borne in mind that by the time the petitioner had applied forthe renewal of his permits, there had been intense protests from theresidents of the area in and around the petitioner’s quarry on the adverseeffect the quarry would have on their environment. In Jayawardane vAkmeemana Pradeshiya Sabha and otherd® considering a cancellationof an existing quarrying license this Court held that the strong protest ofthe affected, community underscored the urgency to take remedial action’and upheld the cancellation of the said existing quarry licence as it amountedto noise and air pollution. Therefore the relevant authorities had rightfullycarried out the necessary assessments in order to consider whether it isappropriate to renew the permits issued to the petitioner.
Continuous assessments and monitoring process cannot be regardedas a practice alien to the issuance and renewal of permits. In a situationwhere permits have to be issued to operate a quarry, the assessment ofthe impact on the environment over such an operation will also have to becarried out from time to time and therefore will have to continue until theventure is completed. There would be no possibility for the authorities tobe satisfied with the initial assessment as it would not be possible togauge the impact only on an initial assessment. In fact this position wasconsidered in the well known decision in the case concerning TheGabcikovo – Nagymaros Project involving a dispute between Hungaryand Slovakia on the damming of the river Danube where JusticeWeeramantry in his separate opinion had clearly stated that,
“Environmental impact assessment means not merely anassessment prior to the commencement of the project, but acontinuing assessment and evaluation as long as the projectis in operation. This follows from the fact the EIA is a dynamicprinciple and is not confined to a pre-project evaluation ofpossible environmental consequences. As long as a project ofsome magnitude is in operation, EIA must continue, for everysuch project can have some unexpected consequences; andconsiderations of prudence would point to the need forcontinuous monitoring."
In fact Clause 5 of the Environmental Protection licence issuedto the petitioner clearly stipulates that there should be no harm topersons or property arising from blasting activity (P5). Accordinglyif there are complaints based on such blasting operations then itwould certainly be necessary for the relevant authority to assessthe impact on the environment. Considering all the surroundingfactors regarding the operation of the quarry it is quite obvious thatthe 1st to 6th respondents had no possibility to renew the licenceand the permit granted to the petitioner. Giving due considerationfor a suitable environment for adequate living and well-being,
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Attorney-General and others (Sarath N. Silva, C. J.)
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is included in the Universal Declaration of Human Rights, as Article 25,states that ‘everyone has the right to a standard of living adequate for thehealth and well-being of himself and of his family’. Accordingly, consideringall the facts and circumstances in this case, it cannot e stated that the1st to 6th respondents had acted arbitrarily or unreasonably when theyrefused the petitioner’s application to renew the permits and licences issuedto him.
With regard to the economical loss the petitioner has complained of, itis to be noted that, the purchase of the land and the electricity connectioncannot be considered a loss since the expenditure on purchase of theland could be recovered if necessary by selling the property and theelectricity connection would be considered as an improvement to theproperty, which would have enhanced its value. Moreover, the expenditureon the permits cannot be recovered from the respondents since there hasbeen no cancellation of those permits. The allegation -against therespondents was only on the basis of the refusal of the renewal of thepermits.
For the reasons aforementioned, I declare that Article 12(1) of theConstitution had not been violated by the 1st to 6th respondents. Iaccordingly make order dismissing this application, but in all thecircumstances of this case without costs.
WEERASURIYA, J. — I agree.
FERNANDO, J. —I agree.
Appeal dismissed.