Sri Lanka -- Environmental Foundation Limited vs. Ratnasiri Wickramanayake, C.A. App. No. 137/96

Environmental Foundation Limited
Vs.
Ratnasiri Wickramanayake,
Minister of Public Administration
and Two Others
The South Asian Law Reporter Vol 3(4) Dec 1996
Court of Appeal of Sri Lanka
C.A. Application No.137/96

Before: Dr Ranaraja J.

Counsel: Lalanath De Silva with Mihiri Gunawardena for Petitioner

K.C. Kamalasabeyan P.C., Additional Solicitor-General, with S. Sri Skandarajah, Senior State Counsel, for 1st and 2nd Respondents

F. Mustapha P.C. for 3rd Respondent

Decided: 17 December 1996

Application originally filed by Petitioner for writ of certiorari to quash order of 2nd Respondent (Director, Department of Wildlife Conservation) permitting 3rd Respondent to display 30 species of animal at a private zoo - subsequent cancellation of licence due to alleged violation of terms and conditions - appeal by 3rd Respondent to 1st Respondent (the Minister) - decision of 1st Respondent, purportedly exercising his powers under the Fauna and Flora Protection Ordinance, to restore the licence provided conditions were adhered to - application by Petitioner to quash this subsequent order as being illegal - question of Petitioner’s locus standi

The Petitioner was a public interest law firm dedicated to the protection of nature and the conservation of its riches. It had previously filed an application No.993/94 for a writ of certiorari to quash the order of the 2nd Respondent, the Director, Department of Wildlife Conservation, permitting the 3rd Respondent to possess and display 30 species of mammals, reptiles and birds at a private zoo. Subsequent tot he filing of that application, the 2nd Respondent had revoked the permit allegedly for breach of the conditions on which it had been issued. However the 3rd Respondent appealed tot he 1st Respondent Minister, who restore the permit on condition that its terms and conditions would be adhered to.

The Petitioner then withdrew its earlier application and filed the present application, repeating the prayer in its earlier application (relief “a”) and adding a further prayer for a writ of certiorari to quash the decision of the 1st Respondent restoring the permit (relief “b”). The Petitioner also prayed for a writ of mandamus compelling 2nd Respondent to seize the animals at the zoo which may be produced in evidence in terms of the Fauna and Flora (Protection) Ordinance (relief “c”), and a writ of mandamus compelling the 2nd Respondent to prosecute and otherwise enforce the law against the 3rd Respondent for the commission of offences under the Fauna and Flora (Protection) Ordinance as amended by Act No. 49 of 1993 (relief “d”).

The Petitioner’s contention was that Section 55 of the Ordinance which allows the Director of Wildlife Conservation to authorize any person to do an act which is otherwise prohibited under the Ordinance, related only to acts for the protection, preservation or propagation, or scientific study and investigation, or for the collection of specimens for a national zoo, museum or other similar institution, of the fauna and flora of Sri Lanka. The word “national” had been added before the word “zoo” only by the Fauna and Flora Protection (Amendment) Act No, 49 of 1993 which was certified on 20 October 1993.

The Respondents at the outset took up a preliminary objection that the Petitioner has no locus standi to make this application. The 1st Respondent also stated that his restoration of the 3rd Respondent’s permit had been made prior to the certification of the Fauna and Flora Protection (Amendment) Act which statement was not challenged by the Petitioner.
(1) As the Petitioner was a party genuinely interested in the matter complained of, it had the locus standi to make this application.

(2) In terms of Section 56(2) of the Fauna and Flora Protection Ordinance, the 1st Respondent was the proper authority to whom a person aggrieved by the revocation of a permit of licence had a right of appeal.

(3) The section provides that the decision of the Minister shall be final and conclusive, and accordingly, in terms of Section 22 of the Interpretation Ordinance, the Court could not interfere unless the order made was ex facie not within the power conferred on the person making it, or the person making the decision had not followed some mandatory rule of law or had failed to observe the rules of natural justice. The Petitioner had not satisfied Court that either the 1st or 2nd Respondent had acted in such a fashion.

(4) If the 3rd Respondent, ass alleged by the Petitioner, had breached the conditions of his permit, the Petitioner had the right to make representations to the 2nd Respondent for necessary action. Since the Court was not in a position to monitor the breach of conditions of the permit, it would not make orders it could not effectively enforce.

(5) The Petitioner had accordingly failed to establish sufficient grounds for the grant of reliefs prayed for in prayers “a” and “b” and the other reliefs claimed by the Petitioner stemmed for these prayers. The application was therefore dismissed without costs.

Cases cited:

Premadasa vs. Wijewardena (1991) 1 S.L.R. 333
Simon Singho vs. Government Agent, W.P. 47 N.L.R. 545
Wijesiri vs. Siriwardena (1982) 1 S.L.R. 171
R. vs. Paddington Valuation Officer (1966) 1 Q.B. 380
R. vs. Thames Magistrates Court (1957) 55 L.G.R. 129
Re Forster (1863) 4 B. &. S. 187
Samalanka Ltd. vs. Weerakoon (1994) 1 S.L.R. 405

Dr. Ranaraja J.

The petitioner Environmental Foundation Ltd., a public interest environmental law and advocacy organization, has filed this application, inter alia:

1) for a writ of certiorari quashing the authorization (1R1) issued by the 2nd Respondent, the Director, Department of Wildlife Conservation, to the 3rd Respondent, Masahim Mohamed, to possess and display 30 species of mammals, reptiles and birds specified therein
2) for a writ of certiorari quashing the decision of the 1st Respondent, the Minister of Public Administration, conveyed by letter dated 22.09.1995 (2R17) to restore permit No. Va/Sa/San/1/5/62, dated 27.08.1993 (1R1), subject to the restriction of species and number of animals which could be kept by the 3rd Respondent under the conditions stipulated in the permit.

The 3rd Respondent is the owner of a private zoo called “Crocodiles and Mini Zoo”, Galle Road, Ahungalla, on 1R1 issued by the 2nd Respondent. The zoo is open to the public on payment of an entrance fee of Rs.15/2 and Rs.100/2 form local and foreign visitors respectively. The permit lists 30 species of mammals, reptiles and birds and the number of each species of mammals, reptiles and birds listed in 1R1, except for the purpose of protection, preservation, propagation or for scientific study or investigation. Only a national zoo, it is submitted, may be allowed such an exemption. The Petitioner contends that in the circumstances, 1R1 that has been issued by the 2nd Respondent is illegal, null and void. The Petitioner has also alleged that the 3rd Respondent has in his possession a sloth bear not included in the permit, and five pythons in excess s of the number permitted by 1R1, and that the permit should be revoked in terms of condition no.6.

The petitioner filed an earlier application No.933/94 before this court, seeking, inter alia, a writ of certiorari quashing 1R1. While that application was pending, the permit 1R1 was revoked by letter dated 27.05.1995 (B), sent by the 2nd Respondent to the 3rd Respondent. The 3rd Respondent appealed to the 1st Respondent against order (B) by letter dates 01.08.1995(3R2/1R1). The 1st Respondent, after calling and considering the reports from the 23rd Respondent, the Secretary and the Additional Secretary of his Ministry, had decided to restore 1R1 on condition that the species and the number of animals kept in the 3rd Respondent’s possession should be restricted to the species and number specified in the permit. That decision was conveyed to the 3rd Respondent by 2R17/3R3. On application made by the Petitioner to withdraw Application No.933/94, which was allowed, that application was dismissed.

Counsel for the 1st and 2nd Respondents have taken a preliminary objection that the Petitioner has no locus standi to make the present application. He submits that “the law as to locus standi to apply for certiorari may be stated as follows: the writ can be applied for by an aggrieved party, who has a grievance, or by a member of the public. If the applicant is a member of the public, he must have sufficient interest to make the application” :Premadasa v. Wijewardena, (1991) 1 S.L.R. 333 at 343. Locus standi in relation to mandamus is more stringent. The petitioner must have a personal interest in the subject matter of the application: Simon Singho v. Government Agent, W.P., 47 N.L.R.545.

Counsel for the Petitioner, on the other hand, submits that the Petitioner has its objective the protection of nature and the conservation of its riches (Vide P1, P2, P3). It is genuinely concerned with the implementation and enforcement of the law relating to nature, its conservation and the environment in general, and is performing a duty case on it by Article 28(f) of the Constitution of Sri Lanka, to protect nature and conserve its riches. It is to be noted, however, that Article 29 of the Constitution provides that the provision of Chapter VI do not confer or impose legal rights or obligation and are not enforceable in any court or tribunal.

However, there are decisions both here and abroad which have expanded the principle of locus standi to include an applicant who can show a genuine interest in the matter complained of, and that he comes before court as a public-spirited person, concerned to see that the law is obeying the interest of all: See Wijesiri v. Siriwardena, (1982) 1 S.L.R. 171. Unless any citizen has standing there is no means of keeping public authorities within the law unless the Attorney General will act - which frequently he will not. That private persons should be able to obtain some remedy therefore “a matter of high constitutional principle”: Lord Denning, MR - R v. Paddington Valuation Officer (1966) 1 Q.B. 380. Nevertheless, the Court would not listen to a mere busybody who was interfering in things which did not concern him, but will listen to anyone whose interest are affected by what has been done: See R. v. Paddington (supra). In any event, if the application is made by what for convenience one may call a stranger, the remedy is purely discretionary: See Parker J in R. v. Thames Magistrates Court (1957) 55 L.G.R. 129. Court retains a discretion to refuse to act at the instance of a mere stranger, if it considers that no goof would be done to the public: See Re Forster (1863) 4 B.&.S. 187. As a party genuinely interested in the matter complained of, the Petitioner has the locus standi to make this application.

The Petitioners complain is the Section 55 of the Fauna and Flora Protection Ordinance No.2 of 1937 permits the 2nd Respondent by a writing under his hand, to authorize any person to do any act otherwise prohibited or penalized under the Ordinance or any regulation made thereunder, if , in the opinion of the 2nd Respondent, such act should be authorized for the protection, preservation or propagation, or for scientific study or investigation, or for the collection of specimens for a zoo, museum or similar institution, of the fauna and flora of Sri Lanka. By the Fauna and Flora Protection (Amendment) Act No.49 of 1993, certified on 20.10.1993, the worse “for a zoo” have been replaced by the words “for a national zoo”. The 3rd Respondent’s zoo is a private zoo. Therefore, it is contended, the permit IR1 issued by the 2nd Respondent is illegal, null and void.

The 1st Respondent has affirmed that the permit 1R1 was issued prior to the certification of the Fauna and Flora Protection (Amendment) Act. This statement of the 1st Respondent has not been challenged by the Petitioner by way of affidavit. Upon the revocation of 1R1 by the 2nd Respondent, the 3rd Respondent has appealed to the 1st Respondent, who, as submitted by the Petitioner in paragraph 6 of the petition, is the appellate authority for the purpose of permits and licences under Section 56 of the Ordinance. In paragraph 8 of the petition files in Application No.933/94, “(a)”, the Petitioner has admitted that 1R1 was a “permit” issued by the 2nd Respondent to the 3rd Respondent to possess and display 30 species of mammals, reptiles and birds specified in the said permit, (vide clause 6 of 1R1).

Section 56(2) gives any person aggrieved by the revocation of a permit or licence the right of appeal against such revocation the Minister, and a decision of the Minister on any appeal under Section 56(2) shall be final and conclusive in terms of Section 56(4). In view of the preclusive clause, this Court will not and cannot interfere with such an order except in the circumstance set out in Section 22 of the Interpretation Ordinance. That is, where (a) the order made is ex facie not within the power conferred on the person making such decision; (b) the person making such decision has not followed a mandatory rule of law; or (c) failed to observe rules of natural justice in the process of making such decision: See Samalanka Ltd. v. Weerakoon (1994) 1 S.L.R. 405. The petitioner has not satisfied this Court that either the 1st or 2nd Respondent has acted contrary to (a) to (c) above. Reliefs “c” and “d” claimed by the Petitioner stem from reliefs “a” and “b”. If the 3rd Respondent has breached the condition in 1R1, by either possessing mammals, reptiles and birds in excess of the number permitted by 1R1 or keeping the sloth bear without authorisation of the 2nd Respondent, the Petitioner will in any event have the right, as it has already done, to make representations to the 2nd Respondent for necessary action in terms of clause 6 of 1R1. Since breach of the conditions in 1R1 is a matter which Court is not in a position to monitor continuously, primarily because of the natural increase by breeding - (vide 3R4), it will not make orders it cannot effectively enforce. Reliefs “e”, “f” and “g” are matters preliminary to the hearing of the application. Since the Petitioner has failed to establish sufficient grounds for reliefs “a” and “b”, the application is dismissed without costs.

(Sgd)
Judge of the Court of Appeal

Fecha del Recurso: 
1996
Países y Regiones: 
Tipo de recurso: