COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

SRI LANKA

Sri Lanka - Public Nuisance

KEANGNAM ENTERPRISES LIMITED v. E.A. ABEYSINGHE and eleven others

C. A. APPLICATION NO. 259/92
COURT OF APPEAT

Introduction

The Petitioner-Company was engaged in the rehabilitation of the Ambepussa-Dambulla-Anuradhapura road and was extracting stone from the quarry for that purpose. The informants who obtained the Magistrate's Court order were a group of residents of the area who claimed to be affected by the blasting operations carried out by the Company. During the course of the proceedings the Court allowed separate applications from the Road Development Authority and four workers from the quarry who claimed that their livelihood would be affected if the quarry was shut down, to be added as parties.

The Petitioner-Company sought revision of two orders of the Magistrate's Court of Kurunegala delivered respectively on 18.12.1991 and 26.03.1992 in the Court of Appeal. The Order delivered on 26.03.1991 merely affirmed after an inter partes inquiry, the order made ex-parte on 18.12.1991 restraining the Petitioner-Company under Section 98(1) of the Criminal Procedure code from operating a quarry on land it had leased, and directing the removal of a public nuisance under Section 104(1) of the Code.

Legislative Framework

Criminal Procedure Code, Sections 98(1) 104(1), 106.
National Environmental Act No. 47 of 1980 (NEA), as amended by Act. No. 56 of 1988, Sections 23A and 29

The main argument of the Petitioner-Company in the Court of Appeal was that the Magistrate's power to make orders under Chapter IX of the Criminal Procedure Code (Sections 98 to 106) had been taken away by the provisions of the National Environmental Act No. 47 of 1980 as amended by Act No. 56 of 1988. Under Section 23A of the amended NEA, no person was allowed to discharge, deposit or emit waste into the environment which would cause pollution except under the authority of a license issued by the Central Environmental Authority (CEA) and in accordance with such standards and other criteria as may be prescribed under the Act. Section 29 of the Act declares that "The provisions of the Act shall have effect notwithstanding anything to the contrary in the provisions of any other written law."

At the time that the Magistrate made his orders the Petitioner Company had applied for but had not obtained a license from the CEA. It had commenced blasting operations on 1.9.1991 on the strength of a letter dated 10.07.1991 from the Director, CEA, to the Kurunegala Pradeshiya Sabha which stated that an environmental protection license "shall be obtained by the developer" and that "the developer shall submit an application for the said license to the CEA one month prior to the commencement of manufacturing operations."

A permit was eventually issued to the Petitioner-Company on 19.06.1992 after the Magistrate had made his restraining and conditional orders and after the Petitioner Company had filed this revision application in the Court of Appeal.

Held

The mere application for a license was not sufficient compliance with Section 23A of the Act and the Petitioner-Company had also acted in violation of the conditions stipulated in the letter of 10.07.1991 from the Director, CEA. Since the Petitioner-Company was not in possession of a license from the CEA as required by the Act, he could not invoke the provisions of the Act to defeat the action in the Magistrate's Court. The Magistrate had jurisdiction to make orders under Chapter IX of the Criminal Procedure Code if satisfied with the information furnished by the Informants regarding the nuisance which they complained of. Therefore, the revision application would be dismissed. However, since the Petitioner Company had subsequently obtained a license from the CEA it was at liberty to revert to the Magistrates Court where the main inquiry under Section 101 of the Code was still pending and make submissions based on the provisions of the National Environmental Act as amended, with a view to have the orders made by the Magistrate annulled.

Cases Cited

Kiriwantha and another v. Navaratne and another (S. C. Application No. 628/88)