COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

SRI LANKA

Sri Lanka - Due Process

APPEAL UNDER SECTION 23E OF THE NATIONAL ENVIRONMENTAL ACT BY E.M.S. NIYAZ

SECRETARY, MINISTRY OF ENVIRONMENT (1995)
D. NESIAH, SECRETARY, MINISTRY OF ENVIRONMENT

Introduction

E.M.S. Niyaz (Niyaz) appeals against the decision of the Poojapitiya Pradeshiya Sabha (the PS) canceling the Environmental Protection License (EPL) issued to him under Section 23B of the National Environmental Act. Niyaz operates a saw mill, and the EPL covers the discharge of waste and transmission of noise from this saw mill.

Section 23D of the National Environmental Act allows the Central Environment Authority (CEA) to cancel an EPL, and Section 23E gives the party whose EPL is cancelled a right to appeal to the Secretary, Ministry of Environment.

Legislative Framework

Sections 23B, 23D, 23E, 26 National Environmental Act.

Held

The Secretary, Ministry of the Environment, set aside the cancellation of the EPL of Niyaz, stating that the PS did not hold a proper inquiry with the participation of Niyaz and any complainants.

Once an EPL is granted, it creates legal rights and obligations in the licence holder. This license can only be cancelled after a fair hearing. The CEA, and those to whom it has delegated the power to issue, suspend and cancel an EPL, must act judicially when they perform these acts. The CEA and its delegate institutions must follow principles of natural justice, which require that they act fairly and give affected parties a fair opportunity to state their case. The CEA must also make decisions on relevant data, evidence and facts.

This fair opportunity to make a case requires CEA and delegate institutions to:

(1) hear neighbourhood objections and carry out appropriate investigations prior to granting an EPL;

(2) entertain, investigate and inquire into community complaints about EPL violations or situations in which waste/noise is being discharged contrary to the National Environmental Act;

(3) grant EPL holders a reasonable opportunity to know the case against them and place their defence before the CEA and delegate institutions before an EPL is cancelled or suspended, unless an emergency situation requires that an EPL be suspended.

In this case, the PS did not give Niyaz a hearing or any opportunity to make representations prior to the cancellation of his EPL, and this decision is contrary to law and the National Environmental Act.

Cases Cited

Abdul Thassim v. Rodrigo 48 NLR 121
Buhari v. Jayarathne 48 NLR 224
Mohamed & Company v. Controller of Textiles 48 NLR 461
South-Western Bus Company Ltd. v. Arumugam 48 NLR 385