001-SLLR-SLLR-2010-V-1-ENVIRONMENTAL-FOUNDATION-LTD.-AND-OTHERS-v.-MAHAWALI-AUTHORITY-OF-SRI-LAN.pdf
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Environmental Foundation Ltd. and others v. Mahawali Authority of
Sri Lanka and others
1
ENVIRONMENTAL FOUNDATION LTD. AND OTHERSV.
MAHAWALI AUTHORITY OF SRI LANKA AND OTHERSSUPREME COURTJ. A. N. DE SILVA C. J.
MARSOOF. J.
RATNAYAKE. J.
SC 459/08 (FR)
OCTOBER 21, 2009DECEMBER 2, 18 2009
Constitution-Art 12(1), Art27(14), Art28(f)-PubUcInterestLitigation-Construction of residential buildings on lands reserved for thereservoir – Special areas – Directive principles ofstate policy- PublicTrust Doctrine – Mahaweli Authority-Act 23 of1979- Section 3(1),Section 12, Section 22 (1), Section 54, Fauna and Flora ProtectionOrdinance 44 of 1964 amended by Act 15 of 1968 amended byAct 52 of 1982 – Public property to be used for public purpose
The petitioners filed the application in the public interest complainingof a violation of Art 12 (1) in the alienation of lands within the ‘specialarea’ declared under the provisions of the Mahaweli Authority Act andfurther complaining that the construction of houses do not fall withinthe prescribed projects.
Held
The origin of public trust doctrine can be traced to JustiniansInstitutes where it recognizes that things common to mankind -air, running water and sea. These common property resourceswere held by the rulers in trusteeship for the free and unimpededuse of the general public.
The public trust is more than an affirmation of state power to usepublic property for public purposes. It is an affirmation of the dutyof the state' to protect the people’s common heritage of streams,lakes, marshlands and tide lands, surrendering the right only inthose rare cases when the abandonment of the right is consistentwith the purposes of the trust.
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Per Ratnayake. J.
“Although it is expressly declared in the Constitution that thedirective principles and fundamental directions – Cap VI of theConstitution and Art 27 (14) do not confer or impose legal rightsor obligations and are not enforceable in any Court or Tribunal,Courts have linked the directive principles to the public truthdoctrine and have stated that these principles should guide statefunctuaries in the exercise of their powers”.
The public trust doctrine requires the respondents to exercisetheir powers only in furtherance of the functions of the MahaweliAuthority. They should not indulge in any activity in theperformance of their functions which would be detrimental for therealization of the functions of the Mahaweli Authority.
The lands which are the subject matter of this case and which fallwithin the reservation area should be utilized exclusively to ensurethe realization of the objections of the Mahaweli Authority.
Per Ratnayake. J.
“It is clear that the alienation of the lands and the granting ofpermission to construct houses in the lands which are the subjectmatter of their application have been done in violation of theapplicable laws and regulations in an arbitrary manner by the 1“respondent authority thereby violating Art 12 (1).”
APPLICATION under Art 126 of the Constitution.
Cases referred to:
M.L. Mehtha vs. Kamal Nath 1997 – 1 SCC 388
National Andobon Society vs. Superior Court of Alpine Country(Mono Lake Case) 33 Ca. 3 d 419
Sugathapala Mendis vs. Chandrika Bandaranayke Kumarana-tunge – SC FR 352/2007
Wattegedera Wijebanda vs. Conservator General Forests andothers- SC 188/2004 – SCM 5.4.2007
Nishantha Sirmanna with Wardani Karunaratne for petitioners.
Nihal Jayamanne PC with Uditha Collure for 8th respondent
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Environmental Foundation Ltd. and others v. Mahawali Authority of
Sri Lanka and others (Ratnayake, J.)
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Palitha Kumarasinghe PC with Chintaka Mendis for 1-4 respondents.
Indika Demuni de Silva DSG for 5th, 6th, ll"1, 12th, 13th and 14threspondents.
Cur.adv.vult
June 17th 2010RATNAYAKE, J.
The Petitioners in this case have filed this application inthe public interest complaining of a violation of Article 12(1)of the Constitution in the alienation of the lands referred totherein and the granting of permission for construction ofbuildings on such lands. The 1st Petitioner is a non-profitmaking company incorporated under the laws of Sri Lankaand according to the Memorandum of Association annexedmarked <P1B’ to the Petition, the objects include the monitor-ing of State Departments and Regulatory Agencies so as toensure that the public interest in protecting the environmentis fully considered in their administrative actions. The 2nd and3rd Petitioners are persons who are residing in close proximityto the Victoria Reservoir. The Petitioners allege that the alien-ation and granting of permission for construction of buildingsin the lands which are the subject matter of this applicationhad been done in an arbitrary and adhoc manner in violationof the applicable legal provisions and guide lines.
Petitioners state that the lands which are the subjectmatter of alienation and granting of permission for construc-tion fall within the “Special Area” declired in terms of Section3(1) of the Mahaweli Authority Act No. 23 of 1979. Accordingto them the said land also fall within the 100 m. reservationfrom the full supply level of the Victoria Reservoir which isone of the important reservoirs falling within the “AcceleratedMahaweli Program” described in the document annexed asTO’ to the petition of the Petitioners. They also contend that
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the concerned lands also fall within the “Victoria – Randeni-gala – Rantabe Sanctuary” created under Section 22 of theFauna and Flora Protection Ordinance (Cap. 469) as amendedby Act 44 of 1964 and Act No. 1 of 1970. Accordingly thePetitioners allege that unlike other state lands different andmore stringent provisions apply for the alienation of suchland and the granting of permission for construction on thelands falling under the above regimes, and that one or moreof the Respondents have violated these provisions.
This Court which granted Leave to Proceed in this appli-cation in respect of the alleged violation of Article 12 (1) of theConstitution also on 17th December 2008 granted interim re-lief as prayed for by the Petitioner in paragraphs *m’ and *n’of the prayer to the petition which states as follows:-
(m)Issue an interim order until the final determination of thisApplication, restraining the 1st to 6th Respondents and/or any one or more of them from issuing any instrumentsof alienation/disposition, including annual permit, to anyperson(s), in respect of any lands located within 100 metersfrom the full supply lever of the Victoria Reservoir andvested in the Mahaweli Authority and/or declared asconstituting “Special Ares”, and/or for the purposes oferecting buildings and/or permanent structures thereonand/or subject to the imposition such terms and conditionsthat may be deemed fit and appropriate by Your Lordships’Court; and/or
(n)Issue an interim order until the final determination ofthis Application, restraining the 1st to 10fh Respondentsand/or any one or more of them from permitting and/orauthorizing in any manner whatsoever, the erection/con-struction of any buildings, structures on any lands locatedwith 100 meters from the full supply level of the Victoria
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Reservoir and/or on any lands located within 100 metersfrom the boundaries of the ‘Victoria Randenigala-RantambeSanctuary’, except in strict compliance with the condi-tions/ Guidelines laid down by the Special Committeein 1997 (as contained in the document marked P12), and/or with EIA or TEE approval obtained therefore from theMahaweli Authority and/or the Department of WildlifeConservation, prior to commencing such constructionfs);and/or staying the operation of any building approvals/permits that have been granted/issued by any of the saidrespondents in breach/violation of the said requirement;
This application deals with two aspects, namely –
alienation of the lands in question and
granting of permission for construction.
In order to cany out the functions falling within the“Accelerated Mahaweli Program” the government of theday created a State Corporation by the name of MahaweliAuthority of Sri Lanka (hereinafter referred to as theMahaweli Authority) by Act No. 23 of 1979. The 1st Respondentin this case is the said Mahaweli Authority and the 2nd and3rd Respondents are officials of the Mahaweli Authority. The1st Respondent Corporation, which has wide and extensivepowers, was entrusted with the following functions by theMahaweli Authority of Sri Lanka Act No. 23 of 1979;
“12 (a) to plan and implement the Mahaweli Ganga Develop-ment Scheme including the construction and operationof reservoirs, irrigation distribution system and in-stallations for the generation and supply of electricalenergy”;
Provided, however, that the function relating to thedistribution of electrical energy may be discharged
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by any authority competent to do so under any otherwritten law;
to foster and secure the full and integrated develop-ment of any Special Area;
to optimize agricultural productivity and employmentpotential and to generate and secure economic andagricultural development within any Special Area; ■
to conserve and maintain the physical environmentwithin any Special Area;
to further the general welfare and cultural progress ofthe community within any Special Area and to admin-ister the affairs of such area;
(ft to promote and secure the participation of privatecapital, both internal and external, in the economic andagricultural development of any Special Area; and
(g) to promote and secure the co-operation of Governmentdepartments, State institutions, local authorities, publiccorporations and other persons, whether private orpublic, in the planning and implementation of theMahaweli Ganga Development Scheme and in thedevelopment of any Special Area.”
The area of authority of the Mahaweli Authority is givenin Section 3(1) of the above Act in the following manner.
“The Minister may, with the approval of the President fromtime to time by Order published in the Gazette declare anyarea which in the opinion of the Minister can be developed withthe water resources of the Mahaweli Ganga or of any majorriver to be a special area (hereinafter referred to as “SpecialArea” in or in relation to which the Authority may, subject to
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the other provisions of this Act, exercise perform and dischargeall or any ofts powers, duties and functions
The Government Gazettes dated 15.6.1979 and
specify the “Special Areas” declare under theabove Provisions and the said Gazettes have been annexedmarked as “CA5A” and “CA5B” to the counter affidavit of thePetitioners. It is common ground that the lands which arethe subject matter of this application falls within the ‘SpecialArea’ as declared by the two Gazette Notifications referredto above. In respect of the ‘Special Areas’ Section 22 (1) ofthe Mahaweli Authority of Sri Lanka Act grant the followingspecial powers.
“22 (1) The written laws for the time being specified inSchedule B hereto shall have effect in every SpecialArea subject to the modification that it shall be lawfulfor the Authority to exercise and discharge in such areaany of the powers or Junctions vested by any suchwritten law in any authority, officer or person in likemanner as though the reference in any such writtenlaw to the authority, officer or person empowered toexercise or discharge such powers orfunctions includeda reference to the Authority
The written laws specified in Scheduled B above are asfollows
Agricultural Development Authority Incorporation OrderAgrarian Services ActAnimals Act
Co-operative Societies LawEntertainment Tax OrdinanceFauna & Flora Protection OrdinanceFlood Protection OrdinanceForest Ordinance
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Irrigation Ordinance
Land Development Ordinance
Mahaweli Development Board Act
Mines and Minerals law
National Water Supply & Drainage Board Law
Paddy Marketing Board Act
River Valleys Development Board.Act
Sale of State Lands (Special Provisions) Law No. 43 of 1973
State Lands Ordinance
State Lands (Recovery of Possession) Act
Thoroughfares Ordinance
Tolls Ordinance
Vehicles Ordinance
Water Resources Board Act
Wells and Pits Ordinance.
Written Law enacted under any of the aforesaid enactments.
Accordingly the power to alienate lands under the LandDevelopment Ordinance vest in the Mahaweli Authority andits authorized officials. The Petitioners contend that the abovepowers of alienation have been exercised by the 1 “ Respondentand officials of the 1st Respondent in an “adhoc and arbitrarymanner”.
The Petitioners have annexed to their petition marked as“P 15”a report prepared by an official of the 1st Respondentpursuant to a complaint made to the 1st Respondent by the1st Petitioner. The report is dated 23rd May 2006. This reportstates that the lands alienated are situated within the 100m.Reservation Area from the full supply level of the VictoriaReservoir. It also states that the lands which are the subjectmatter of this action and referred to in this report fall with-in the “Buffer Zone” of the Victoria-Randenigala-RantabeSanctuary declared under the Fauna and Flora Protection
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Ordinance as amended. These facts are not disputed by theRespondents. It is also common ground that these landshave been given on standard permits issued under the LandsDevelopment Ordinance.
If appears from P22 which is a copy of a permit issued,Clause 12 thereof has been amended granting authority tothe permit holder to construct buildings on the said landsalienated on annual permits and the permit holders wereentitled to obtain a grant or long term lease of the said lands,if constructions commence within 6 months from the date ofthe Annual Permit.
The Petitioners have annexed marked as ¥7’ the Regula-tions framed under Sections 54(1) and 54(2) of the MahaweliAuthority of Sri Lanka Act No. 23 of 1979 dated 10th December1975. Clause 7 of the said Regulations prohibit the con-struction of buildings and structures in close proximity toreservoirs in the following manner;
Clause 7 – Buildings and Structures –
No person shall engage in the construction of a building orstructure below the high flood level of a reservoir withoutprior permission of the Authorised Officer.
No person shall engage in the construction or provision ofbuildings and structures in and around a reservoir withoutpriorapprovalofanAuthorisedOfficerandintheconstructioncarried out after approval to conform to such terms andconditions laid out in the approval. ”
The word “Reservoir” is defined in the said Regulationin the following manner. “Reservoir” means an expanse ofwater resulting from manmade constructions across a river
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or stream to store or regulate water. Its environs will includethat area extending to a distance of 100m. from full supplylevel of the reservoir inclusive of all islands fallings withinthe reservoir.” It is common ground that the lands which arethe subject matter of this application falls within the areareferred to in Clause 7 of the above regulations and accordingly,construction of buildings and structures are prohibitedwithout permission of the authorized officer.
Petitioners have produced many documents andcontended that the construction of buildings in the landswhich are the subject matter in this application attractSection 23 BB (1) of Part IV (c) of the National EnvironmentalAct No. 47 of 1980 as amended. According to this provisionan initial environmental examination report or an environ-mental impact assessment report is required to be submit-ted to the project approving agency prior to the approval forconstruction is granted. They also contend that no suchreport was obtained by the 1st Respondent prior to approvalbeing granted for the construction of the buildings.
Part IV (C) of the National Environmental Act No. 47 of1980 as amended deals with approval of projects. In termsof Section 23(z) coming under Part IV (c) of the Act theMinister by Order published in the Gazette shall specify theprojects and undertakings in respect of which approval wouldbe necessary under the provisions of Part IV (c) of the Act.Section 23BB (1) of the National Environmental Act states asfollows:-
23BB(l)aIt shall be the duty of all project approving agencies torequire from any Government department, Corporation,Statutory board, local authority, company, firm orindividual who submit any prescribed project for its
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approval to submit within a specified time an initialenvironmental examination report or an environmentalimpact assessment report as required by the projectapproving agency relating to such project and con-taining such information and particulars as may beprescribed by the Minister for the purpose. ”
The Petitioners have produced marked ‘P8’ the ordermade by the relevant Minister under Section 23(z) of theNational Environmental Act dated 18th June 1993. Parts I,II, and III deal with the prescribed projects, which requireapproval under the provisions of Part IV C of the NationalEnvironmental Act.
The Respondents have contended that the constructionof houses do not fall within the prescribed projects describedin ‘P8’. After the conclusion of the pleadings and argumentsin this application the Petitioners by way of a motion dated4th December 2009 have produced an Order made by therelevant Minister under the National Environmental ActSection 23(z) whereby the earlier order is amended and a newClause is added as Clause 32 (a) to the following effect;
32 (a) “Construction of all commercial buildings as definedby the Urban Development Authority Law, No. 41 of1978 and the construction of dewelling housing units,irrespective of their magnitudes and irrespective ofwhether they are located in the coastal zone or not, iflocated wholly or partly within the areas specified inPart III of this Schedule”
Clause 2 of Part III of the Schedule states as follows
“Within the following areas whether or not the areasare wholly or partly within the Coastal Zone:
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Any erodible area declared under the Soil Conserva-tion Act (Chapter 450).
Any Flood Area declared under the Flood ProtectionOrdinance (Chapter 449) and any flood protectionarea declared under the Sri Lanka Land Reclamationand Development Corporation Act, No. 15 of 1968 asamended by Act No. 52 of 1982.
60 meters from the bank of a public stream as definedin the Crown Lands Ordinance (Chapter 4545) andhaving a width of more than 25 meters at any point ofits course.
Any reservation beyond the full supply level of areservoir.
Any archaeological reserve, ancient of protected mon-ument as defined or declared under the AntiquitiesOrdinance (Chapter 188)
Any area declared under the Botanic Gardens Ordi-nance (Chapter 446).
In these regulations unless the context otherwiserequires –
“hazardous waste* means any waste which has toxic,corrosive, flammable, reactive, radioactive or infectiouscharacteristics.
“reservoir” means an expanse of water resulting frommanmade constructions across a river of a stream tostore or regulate water. Its “environs” will include thatarea extending up to a distance of 100 meters fromfull supply level of the reservoir inclusive of all islandsfalling within the reservoir. ”
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Based on the above Gazette Notification Petitionerscontend that the construction of houses within the landswhich are the subject matter of this action fall within the"prescribed projects” for which approval need to be obtainedin terms of Part IV C of the National Environmental Act,and accordingly an Initial Environmental Examination (IEE)report or Environmental Impact Assessment (EIA) report isrequired by the Project Approving Agency .prior to grantingapproval. 11167 also contend that the 1** Respondent or itsofficials did not have such a report before the alienation ofthe lands or granting approval for the constructions in theland. It may appear that the contention of the Petitioner maybe well founded but the Court will not venture to make anypronouncement adverse to the Respondents in this regardas the relevant Gazette Notification has been submitted afterthe closure of the pleadings and the conclusion of thearguments in this case and accordingly Respondents havenot been heard on this matter.
In any event the production of the above mentionedgazette notification is not necessary to contend that partIVC of the National Environmental Act is applicable to theconstruction of buildings in the lands which are the subjectmatter of this case due to the following facts and documentsproduced by the Petitioners.
The Petitioner has submitted the Gazette Notificationmarked P 10’ containing the order dated 30th January 1987made by the relevant Minister under Section 2(2) of theFauna & Flora Protection Ordinance declaring the areadescribed in the said Gazette Notification under the heading“Victoria-Randenigala-Rantabe Sanctuary” as a Sanctuary forthe purposes of the Fauna & Flora Protection Ordinance. Theyhave produced marked Pll’ an Order dated 16th February
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1995 made by the relevant Minister under Section 23(z) ofAct No. 47 of 1980 as amended. They contend in paragraph20 of the petition that in terms of this order “No house (irre-spective of its magnitude) can be constructed within any areaextending up to a distance of 100m. from the boundary orwithin any area declared as a sanctuary under the Fauna &Flora Protection Ordinance, without obtaining approval fromthe relevant Project Approving Agency under and in terms ofPart IV C of the said Act. As such any person who proposesto engage in any construction activity within the saidreservation area must obtain, inter alia Environmental ImpactAssessment (EIA) or Initial Environmental Examination (IEE)with their application for approval from the Department ofWildlife Conservation prior to effecting any suchconstructions”. The 1st to 4th Respondents in their statementof objections have admitted the above contentions of thePetitioners. In paragraph 55(i) of the Petition thePetitioners contend that they “verily believed that EIA ofIEE approval has not been obtained from the respectiveProject Approving Agencies prior to or after the constructionof any of the said building/structures on the said lands”.It is surprising to observe that the 1st to 4th Respondentshave merely stated that they are unaware of this contention.If such approvals were obtained this fact should necessarilyhavebeenwithin the knowledge of the Respondents. Accordingly,it is obvious that such approvals have not been obtained priorto the alienation of the lands and the granting of permissionfor constructions.
The Petitioners have also submitted annexed marked as‘P 35 A’ to ‘P 35C’ certain directives issued by the PresidentialSecretariat and the 1st Respondent Authority dealing withallocation of State lands. Clause 10 of ‘P35A’ contains adirective not to lease lands falling within natural water
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ways, natural reserves and wildlife sanctuaries. *P35B’ andP35C’ which have been issued by the Director General of theMahaweli Authority dated 30th July 2000 require certainprocedures to be adopted in selecting allotees for alienation ofland. The Petitioners contend that these directives guidelinesand procedures have also not been followed by the Respon-dents.
The Petitioners have submitted to Court annexedmarked as ‘P12’ to the Petition a document dated 18.06.1997containing guidelines for the construction of houses inprivate lands formulated by a special committee appointed bythe Director General of the Mahaweli Authority. The guidelineinter alia state that there should be a minimum land area of20 m. between two houses. By the letter dated 08.11.2006annexed marked as *P 19’ to the Petition the Director Generalof Mahaweli Authority quoted the legal advice given by theHon. Attorney General to the effect that the Director Generalhas no legal authority to permit any construction in violationof these special committee guidelines. The alienation of theselands and the granting of permission to construct buildingshave been made in violation of these guidelines. Paragraph36 of the petition of the Petitioners states as follows:-
“Futhermore the Petitioners state that even when own-ers of private lands, which are situated within the saidreservation area, are desirous in engaging in any construc-tion activity, they are required to first obtain the permissionof the Mahaweli Authority of build on such lands and alsoadhere to the stringent building guidelines/ conditionsstipulated by a special committee in 1997. The Petitionersstate without any prejudice to the foregoing that, in anyevent these guidelines have also been violated, in as muchas, inter alia;
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the lands alienated on annual permits to the said personsare dearly 15.30 perches each in extent, whereas 1997guidelines require each land to be a minimum of 20 perchesin extent if constructions is to be effected thereon.
Some of the said constructions had been affected not forresidential purposes but dearly for commercial purposes.
The guidelines require the minimum distance between twobuildings to be 20 meters whereas in some instances thedistance between two buildings is only 2 meters”
In the statement of objections the 1*‘ to 4th Respondentshave admitted this paragraph. They only make an attemptto justify the alienation of lands in allotments less than 20perches in their objections in their objections in the followingmanner.
Paragraph 8 (c)
“the alienation has been made in allotments in less than20 perches in mew of the decisions taken by the thenDirector General of the 1st Respondent on the basis thatthere are large number of applicants and by sub dividingthe land into 15 perches of allotments, larger number ofapplicants could be given lands; True copies of the minutedated 5th April2005and letter send by then Director Generalto the Resident Project Manager-Victoria are filed herewithmarked ‘1R2A and 1R2B’ are pleaded as part and parcelof this statement of objections.
8(d) The said decision has been taken in good faith inorder to provide land for a larger number of deserving citi-zens who has no lands to construct houses for their resi-dences. ”
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The Petitioners go further and contend that the guide-lines in ‘P12’ were meant to apply to private land ownerswhose lands fell within the “Special areas” created under theMahaweli Authority Act and who owned those lands prior tothe creation of these ‘special areas’. Therefore, the guidelinescontained concessionary terms to satisfy those land owners.Accordingly they contend that the mere satisfaction of theguidelines in *P12’ is not sufficient by any means when grant-ing of permission for constructions in the lands which are thesubject matter of this case are being considered. The Courtagrees with the contention of the Petitioners. In that contextit is observed that even the concessionary guidelines whichare applicable when granting permission for constructionsto private land owners have not been followed when grant-ing permission for constructions in the lands which are thesubject matter of this case.
In paragraph 32 of the petition filed by the Petitioners itis stated as follows :-
“In November 2006, the 1st Petitioner caused a further sitevisit to be carried out in respect of the Theldeniya area andthe said unlawful constructions and a detailed report wasprepared in pursuance thereof. The said Report containsthe following conclusions;
All constructions referred to in the said Report arecontained within the Reservation areas of the Victoria-Randenigala-Rantambe Sancturary. ”
The plans pertaining to the said constructions have notbeen approved by the relevant pradeshiya Sabha.
Soil erosion has escalated as a result of the trees beingcompletely removed from the said lands for thepurpose of effecting the said unauthorized construe-
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tions in steep areas within the said reservation areas.The layers of soil get washed away with ran waterand get deposited as sediment in the Victoria Reser-voir.
Due to unauthorized constructions being effected insteep area, the said areas are susceptible to earthslips and landslides.
A true copy of the said Site Visit Report dated 27.11.2006,together with the annexures thereto, are annexed heretomarked ‘P21 ’ and pleaded as part and parcel of thispetition*
The 1st to 4th Respondents in their objections haveadmitted this paragraph. If the position contended by thePetitioners were incorrect it was upto the 1st to 4th Respondentswho are the relevant officials having the required informationand or the resources to obtain the required information intheir custody to have disputed this position and submitted toCourt material to establish that the statements made by thePetitioners are incorrect. They have failed to do so.
In the circumstances referred to above I accept thefacts as stated in the said paragraph 32 of the petition andcontained in the report annexed marked as “P21” to thepetition. These facts clearly illustrate the extent and serious-ness of the damage caused to the environment due to theunlawful acts that have been committed.
In recent times Court has emphasized the applicabilityof the public Trust Doctrine to state functionaries in theexercise of their powers.
The origins of Public Trust doctrine can be traced toJustinien’s Institutes where it recognizes three things commonto mankind i.e. air, running water and sea, (including the
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shores of the sea). These common properly resources wereheld by the rulers in trusteeship for the free and unimpededuse of the general public.
The applicability of the Public Trust doctrine wasexpressly recognized by the Supreme Court of India in thecase of M.C. Mehta Vs. Kamal Nath.™ The Supreme Court ofCalifornia too in the case of National Audubon Society Vs.Superior Court of Alpine Country (the Mono Lake case/21summed up the doctrine as follows:-
“Thus the Public Trust is more than an affirmation ofstate power to use public property for public purposes.It is an affirmation of the duty of the state to protect thepeoples common heritage of streams, lakes, Marshlandsand tidelands, surrendering the right only in those rarecases when the abandonment of the right is consistentwith the purposes of the trust”.
Under Chapter VI of the Constitution which deals withDirective principles of State Policy and fundamental dutiesin Article 27(14) it is stated that “The State shall protectpreserve and improve the environment for the benefit of thecommunity”. Although it is expressly declared in the Consti-tution that the Directive principles and fundamental duties‘do not confer or impose legal rights or obligations and arenot enforceable in any Court of Tribunal’ Courts have linkedthe Directive principles to the public trust doctrine and havestated that these principles should guide state functionariesin the excise of their powers. (Vide Sugathapala Mendis vs.Chandrika Bandaranayake Kumararungaf31 and WattegedaraWijebanda Vs. Conservator General of Forests and others.™
The Public Trust Doctrine requires the lsl to 4th Respon-dents to exercise their powers only in furtherance of the
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functions of the Mahaweli Authority. They should not indulgein any activity in the performance of their functions which-would-be detrimental for the realization of the functionsof the Mahaweli Authority. Therefore the lands which are thesubject matter of this case and which fall within the reserva-tion area should be utilized exclusively to ensure the realiza-tion of the Mahaweli Authority.
Section 12 of the Mahaweli Authority of Sri Lanka Actlays down the functions of the Mahaweli Authority in rela-tion to ‘Special Areas’ declared under Section 3(1) of the Act.Section 12(b) and 12(d) states as follows:-
“The functions of the authority in or in relation to any‘Special Area ’ shall be
to foster and secure the full and integrated development ofany ‘Special Area’
to conserve and maintain the physical environment withinany ‘Special Areas’.
The 1st to 4th Respondents have not provided this Courtwith a rational or justifiable basis for alienating reservedlands of the reservoir and granting permission for construc-tions as referred to above to private parties. It is the viewof this Court that such alienation of lands and grantingpermission for constructions cannot facilitate the achieve-ment of the objects specified in Section 12 of the MahaweliAuthority of Sri Lanka Act.
The Respondents have not sought to justify the alien-ations and permission granted for constructions of the lands
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which are the subject matter of this application except tosay that the power of alienation of such lands are with theMahaweli Authority and its authorized officials.
Prom the aforesaid, it is clear that the alienation of thelands and the granting of permission to construct houses inthe lands which are the subject matter of this applicationhave been done in violation of the applicable laws and regula-tions in an arbitrary manner by the 1st Respondent Authoritythereby violating Article 12(1) of the Constitution.
Due to the above reasons, I hold that the 1st RespondentAuthority has violated Article 12(1) of the Constitution by (i)alienation and (ii) granting of permission to construct housesin respect of the lands which are the subject matter of thisapplication.
There are no specific allegations that have been estab-lished against the 2nd Respondent. In paragraph 8(b) of theStatement of Objections of the Is* to 4th Respondents it isstated that the “Alienations have been made prior to thepresent Director General assumed duties.” There is no denialof this position by the Petitioner.
From the pleadings it appears that the impugnedactions have been taken not by the 3rd Respondent who is thepresent Resident Project Manager but by other officials whowere his predecessors as referred to in paragraph 9(c) of theStatement of the Objections of the 1st to 4th Respondents.There are also no particular allegations established againstthe 4th, 5th, 6th, 8th, 9th, 10th and 11th Respondents.
The letter annexed marked ‘P34’ to the petition of thePetitioner clearly set out the circumstances under which the7th Respondent the Medadumbara Pradeshiya Sabha was
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compelled to grant permission for the construction of thehouses.
The Central Environmental Authority which is the12th Respondent cannot be found fault with as the ProjectApproving Agency in terms of the regulations made under theNational Environmental Act, in respect of the area comprisingthe lands and building which are the subject matter ofthis action, is the Mahaweli Authority of Sri Lanka, the Is*Respondent. This position is stated is the document annexedmarked *P11’ to the Petitioner’s petition.
It is also clear that the 13th Respondent who is theDirector of Wildlife Conservation did not have any powersunder the laws and regulations referred to by the Petitionersin respect of the lands which are the subject matter of thisapplication and this position has been conveyed to the l8tPetitioner by the letter of the 13th Respondent dated 18thSeptember 2006 annexed by the Petitioners themselves totheir petition marked as *P 18(b)’.
In paragraphs (g) and (h) of the prayer to the petition, the •Petitioner have prayed for relief as follows
“(g) Declare and direct the 1st to 10th Respondents and/oranyone or more of them to forthwith revoke/cancel allpermits and instruments of alienation/disposition issuedin respect of the said lands and/or building approvalsissued to the occupants of the said lands and/or issuedin breach/ violation of the condition/guidelines formulatedby the special committee in 1977 (as contained in thedocument marked PI 2); and/or”
(h) Declare and direct the 1st to 4th and/or 7th and/or 8th and/or 9th and/or 10th Respondents to forthwith take steps andmeasures according to law to eject the occupants of allthe said lands and recover vacant possession of the said
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Environmental Foundation Ltd. and others v. MahawaU Authority of
Sri Lanka and others (Ratnayake, J.)
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lands and/or to demolish all the buildings and permanentstructures erected thereon and/or to demolish any suchbuildings/permanent structures that had been erectedthereon in breach of the conditions/ guidelines formulat-ed by the special committee in 1997 (as contained in thedocument marked P 12) and buildings and structures inrespect of which the Mahaweli Authority has not grantedEIA or IEE Approval; in so far any such demolition does notcause any further harm or damage to the environment;’'
This Court will not be able to make the orders referred toabove as the grantees and/or the occupants of the lands havenot been made parties to this application. When the mainallegations of the Petitioners are the arbitrary and adhocalienation of the lands and the permission granted to con-struct the buildings, it is necessary that the grantees and/or the persons in occupation of the lands whose interestswould be directly affected be made parties. This has deprivedthe Court the ability of making a suitable order in respect ofsuch alienations and the permission granted to construct thebuildings.
The Petitioners make specific reference in paragraph 33of the petition, of 3 allotments of land identified as lots 13,14 and 15, each containing in extent 15.30 perches situatedwithin the said 100m. area from the Victoria Reservoir whichhad been allegedly alienated by the former Resident ProjectManager to private parties. The Site Visit Report annexedmarked ‘P21’ to the Petition of the Petitioners identified thenames of the persons who are in possession as permit holders.But the permit holders, grantees or the former Resident ProjectManager have not been made parties to this application.Paragraph 4 of the Petitioner’s petition states that “ThePetitioners have instituted this application in the best interestof the public, having regard, inter alia to article 28(f) of theConstitution. The Petitioners further state that a meaningful
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Sri Lanka Law Reports
[2010)1 SRI LR.
and positive result from these proceedings will also benefitthe public and most significantly the environment.” The Courtwhilst appreciating the service done by the Petitioners infiling this application nevertheless observes that not namingas parties the persons referred to above have affected theability of Court to grant more positive and meaningfulresults.
In the circumstances mentioned above, this Court makesorder as follows:-
The 1st Respondent has violated the fundamental right toequality and equal protection of the law as guaranteed tothe Petitioners by Article 12(1) of the Constitution,
Court directs that a proper investigation be conducted bythe 2nd Respondent and suitable action be taken againstthe officials responsible for the unauthorized alienationsand the granting of permission to construct buildings inviolation of the applicable legal provisions,
Court holds that no further allocation of lands in the subjectarea be made without following the procedure laid downunder Part IV C of the National Environmental Act No. 47of 1980, and the regulations made their under,
Court also holds that the guide lines contained in the docu-ment annexed marked as “PI 2” to the petition be followedin the future when granting permission for the constructionof residential buildings,
Court also orders that the 1st Respondent shall pay each ofthe Petitioners a sum ofRs. 25,000/- as costs.
J. A. N. DE SILVA, C. J. – I agree.
MARSOOF, J. – I agree.Relief granted