Jayani De Silva

LL.B. (Hons) (Colombo)

--------------------------------

Singalanka Standard Chemicals Ltd
v
ThalangamaAppuhamilageSirisena and Others

C.A. 85/98
M.C Homagama 31286
Before: W.L.R. Silva, J and A.W.A. Salam, J
Counsel: A.R. Surendran PC for the Petitioner
NalinLadduwehetty for the Respondent
Argued: 11-05-2009 and 28-05-2009
Decided: 01-10-2009


Facts in Brief:
Facts reveal that the Petitioners factory commenced operations in 1984 after obtaining the
approval of the governmental authorities including the Central Environmental Authority, with an
initial investment of nearly 50 million rupees and had been engaged in the manufacture of
AluminiumSulphate popularly known as Alum for more than 11 years. On a complaint made to
the effect that the emissions/discharge from the said factory, constituted a public nuisance the
learned Magistrate ofHomagama, acting under the provisions of Chapter IX of the Code of
Criminal Procedure
1
dealing with public nuisance, ordered the closure of the factory.
2

Analysis:
The issue in the preliminary stage was whether the jurisdiction of the Magistrate can make orders
under Chapter IX of the Code of Criminal Procedure Act has been ousted by the provisions of
the National Environment Act
3
. In this aspect it is important to note that the judge mentioned it

1
Act No. 15 of 1979
2
Singalanka Standard Chemicals Ltd v. ThalangamaAppuhamilageSirisena and Others;
C.A. 85/98; M.C Homagama 31286, pp 02
3
Act No. 47 of 1980
is often argued that Section 29
4
of National Environmental Act has the effect of making the
provisions of the Act prevails over the provisions of Chapter IX of the Code of Criminal
Procedure Act.
5
It is important to note that in support of this analysis the argument that was put
forward is where a statute creates a special remedy for the resolution of certain class of
disputes, the statute takes away the jurisdiction of the ordinary courts in respects of such
matters.
6
The judge has made a comprehensive case analysis regarding this aspect and they are
as follows.
HendrickAppuhami v. John Appuhami
7

Mansoor and Another v. O.I.C. Avissawella Police and another
8

Farook v. Gunawardena
9

Guneratne v. Abesinghe
10


4
National Environmental Act, Section 29, The provisions of this act shall have effect not withstanding anything to
the contrary in the provisions of any other written law, and accordingly in the event of any conflict or inconsistency
between the provisions of this Act and the provisions of such other written Law, the provisions of this Act shall
prevail over the provisions of such written law.
5
Singalanka Standard Chemicals Ltd v. ThalangamaAppuhamilageSirisena and Others;
C.A. 85/98; M.C Homagama 31286, pp 03
6
ibid
7
69 NLR 219, the question before the court was whether The Paddy Lands Act excluded a landlord from
instituting action in the District Court. Overruling the District Judge who held that he had jurisdiction on the basis
that there was no section in the said Act ousting the jurisdiction of the District Court, Sansony, C.J Held that the
District Court had no jurisdiction, as a specific remedy has been provided where a landlord finds that a tenant has
infringed the rights given to him by the Act and for breach of that statutory right the remedy provided by the act
must be sought.
8
(1991) 2 SLR 75, the question before the court was whether the existence of a special remedy under the
Agricultural Lands Law No. 42 of 1973 and the Agrarian Services Act No. 58 of 1979 removed the jurisdiction of
the Primary Court. The court was called upon to, determine whether a tenant cultivator who is evicted from a paddy
land can avail himself of an order made by the Primary Courts Procedure Act notwithstanding the remedy provided
to him under the provisionsof the Agricultural Lands Law and later the Agrarian Services Act. The court upheld the
submission of the Counsel for the Respondent that the remedy under the Agricultural Lands Law and the Agrarian
Services Act given to a tenant cultivator to complain of an eviction and to secure restoration of possession is a
special remedy which excludes any remedy that may be obtained from the exercise of the ordinary jurisdiction of the
Primary Court.
9
(1980) 2 SLR 243, this was a case under the State Lands Recovery of Possession Act which provides for
ejectment by the Magistrate. It was held that the statute created a special procedure and an aggrieved person was
restricted to the procedure specified in the Act itself.
10
(1988) 1 SLR 255, this was a case under the Urban Development Projects Special Provisions Act No. 2 of 1980
this act provided for the authority to Institute action for recovery of possession of premises. The State Lands
recovery of possession act which prescribes a procedure similar to the procedure for recovery of possession
Keangnam Enterprises v. E.A. Abeysinghe and Eleven Others
11

Out of the observations made by the court, one important aspect to be noted is that by
implication what was held in that case was that if there had been a certificate issued by the
Central Environmental Authority the jurisdiction of the Magistrate Courts would have been
ousted.
12
The reason behind such a statement is because the Petitioner Company cannot rely
upon the provisions of the Act due to the reason it had not obtained license from Central
Environmental Authority. Therefore in my opinion this is a very clear principle in law which
explains that one needs to have a legal right to rely on a particular law.
The judgment has also referred to a recent case named R.P. Weerasekara v. Keangnam
Enterprises Ltd
13
where the Magistrate of Balangoda issued a conditional order overruling the
objection taken by the company which had obtained an Environmental Protection License for its
proposed activities.
14
Importance of using relevant authorities in a judgment is highly
significance at a time because this particular Keangnam case is very supportive to establish a
strong stance in this case in question, stating the view of the Magistrate was that such a license
did not fetter his power to determine whether a public nuisance is being committed. The
company moved in revision in the Provincial High Court which set aside the order of the
Magistrate. The case then went before the Court of Appeal, which extensively reviewed the

prescribed by part 5A of the statute was under consideration in that appeal. The Urban Development Projects
Special Procedures Act gave a special remedy to a person affected by an order for recovery of possession made
under the Act namely to move the Supreme Court by way of writ. The aggrieved party however made an application
for revision against the order for eviction made by the Magistrate. In this case the Supreme Court upheld the
contention of the Urban Development Authority that the Court of Appeal could not act in relation to that order
because its jurisdiction had been removed by that Act.
11
C.A No. 259/92, In deciding that the company could not rely on the provisions of the Environmental Act the
court of Appeal proceeded on the basis that the company did not have a license at the time the Magistrate made the
order acting under the provisions of Chapter IX.
12
Singalanka Standard Chemicals Ltd v. ThalangamaAppuhamilageSirisena and Others;
C.A. 85/98; M.C Homagama 31286, pp 06
13
C.A. (PHC) No. 40/2004, H.C. Ratnapura No. HCRA 56/2004
14
Singalanka Standard Chemicals Ltd v. ThalangamaAppuhamilageSirisena and Others;
C.A. 85/98; M.C Homagama 31286, pp 06
authorities in Sri Lanka and other jurisdictions and held that the Magistrate had jurisdiction to
determine whether a public nuisance has been committed. The fact that the activity in question
had been authorized by some other law was a relevant consideration, but the question whether
the statute in question authorized the committing of a public nuisance was ultimately a matter for
the Magistrate to decide.
15
The court also went to the extent of highlighting the importance of
why powers of the Magistrate Court should not be taken away by referring to an Indian Court
judgment, Nagarjuna Paper Mills Ltd v. Sub Divisional Magistrate and Divisional Officer,
Sangareddy.
16

The judgment also states that the National Environmental Act and the Chapter IX of the Code of
Criminal Procedure are two statutes that operate in different fields, and even though has a clash
between the two they could coexist.
17
Therefore the judge has analyzed it stating that the basis of
Section 98 of the Criminal Procedure Code is that, there needs to be an imminent danger of an
act of nuisance being committed and that if the Magistrate does not take prompt action
irreparable damage will ensure to the public.
18
In my opinion the pure intention of the Criminal
Procedure Code is to secure the public from nuisance activities to avoid any imminent danger
that could arise, therefore the Magistrate has been identified as the person who should take the
necessary action on such activities to prevail justice. Another important aspect which arose from
this judgment is that it was noted when there is a court case pending with regard to an alleged

15
ibid
16
(1987) Cri. L. J 2071 Andre Pradesh High Court, In dealing with Section 133 of the Indian Code of Criminal
Procedure which is very much similar to the provisions contained in Chapter IX of our Code of Criminal Procedure
namely Section 98, the Indian High Court rejected the argument that the State Pollution Control Board had the
exclusive right to control air and water pollution and held that the Water (Prevention and Control of Pollution) Act
of 1974 had not taken away the powers of the Magistrate under the Indian Code of Criminal Procedure.
17
Singalanka Standard Chemicals Ltd v. ThalangamaAppuhamilageSirisena and Others;
C.A. 85/98; M.C Homagama 31286, pp 10; The Environmental Act provides for the issuance of licenses permitting
the license holders to commit certain acts which would otherwise be acts of nuisance whereas the provisions under
Chapter IX of the Criminal Procedure Code are intended to prevent the commission of acts of nuisance and the
abetment of nuisance.
18
ibid
commission of an act of public nuisance under the Criminal Procedure Code then the
environmental authority should not grant a license till that matter is finally adjudicated by
courts.The judgment has also reflected on the fact of striking a balance between development
and environment impact as follows:
The purpose of issuing the license under the Environmental Act is to balance environment
concerns with development needs. Sustainable development is an attempt to reconcile two
contradictory human rights namely the right to development and the right to environment
conservation. Simply stated it would imply a benign balance between environment and
development or in other words eco-development.
The society has to develop but not at the expense of the environment and in similar vein, the
environment has to be protected but not at the cost of the development of the society.
Development is not possible without some adverse effects on the ecology. There shall have to be
both development and proper environment and as such a balance has to be found out and
administrative actions ought to proceed in accordance therewith.
19

This judgment has addressed on the importance of striking a balance
betweendevelopmentsandpreserving the environment significantly because with the increasing
globalization activities and commercialization this has become an issue worldwide which needs
to be addressed firmly. The decision has gone beyond the above explanation and categorized few
important environmental principles,explaining each aspect briefly which has made the judgment
more attractive by emphasizing the importance of those principles, making it an eye opener to
reflect on those principles thoroughly when deciding an environmental issue. I have briefly
commented on those principles as how it was discussed in the case extracting most important
statements are as follow:

19
ibid, pp 11

Environmental Principles referred in the Case:
Public Nuisance viewed in the light of Fundamental Rights
Polluter Pays Principle
Principle of Precaution
Universal Obligation
The Principle of Trusteeship and the Principle of Intergenerational Rights
Public Nuisance viewed in the light of Fundamental Rights
The decision states that the Sri Lankan Constitution Article 27(14)
20
has imposed a public duty
by way of directive principles upon the state. It is therefore reasonable to think that the right to
move the appropriate court to direct the state to perform their duty cannot be denied. At present
this is not only a directive principle but has been recognized and enlarged by judicial ingenuity
into a fundamental right.
21
In another important case named Fernando and Others v. Officer In
Charge of Seeduwa Police Station
22
Her Ladyship ShiraniBandaranayake, J held that according
to our Constitution Article 13 by implication embodies the right to life. Her Ladyship has stated
that Article 13(4) should be interpreted broadly to mean that the said article recognizes the right
to life impliedly and that by reading Article 13(4) with Article 126 (2) of the Constitution which
would include the lawful heirs and/or dependents to be able to bring in an action in a situation
where death has occurred as a result of violation of Article 11.
23
In year 2003 Fernando, J. held
in a case
24
that Article 11 and 13 (4) by necessary implication recognize the right to life.

20
The state shall protect, preserve and improve the environment for the benefit of the community.
21
Singalanka Standard Chemicals Ltd v. ThalangamaAppuhamilageSirisena and Others;
C.A. 85/98; M.C Homagama 31286, pp 13
22
S.C. (FR) Application No. 700/2002
23
ibid
24
Silva v. Idamalgoda (2003) 2 SLR 63
Thejudgment has next referred to a case named Subash Kumar v. State of Bihar decided in
Indiawhich has stated right to life is a fundamental right under Article 21 of the Constitution
which includes the right of enjoyment of pollution free water and air for full enjoyment of
life.
25
After giving reference to these cases and emphasizing the importance of right to life the
Judge has stated as follows;
The right to life would take within its sweep the right to a decent environment. In the spirit of
this approach the judges must apply the law to the facts of an individual case mindful all ways
that they are called upon to ensure the fundamental rights of the citizen.
26

Therefore with all these authorities what is significant is that, states are expanding the
fundamental right clauses by including rights such as right to life so forth. This is definitely a
necessary impact on having an eye opener how Public Nuisance could be viewed in the light of
Fundamental Rights due to the broad interpretations coming up from Fundamental Rights
clauses.
Polluter Pays Principle
This particular principle has been used in the judgment to show the importance of how an
enterprise could be absolutely liable and not get subject to any exceptions by referring to one of
the famous case in India, Olium Gas Leak Case
27
which stated, Where an enterprise is engaged
in a hazardous or inherently dangerous activity and harm results to anyone on account of an
accident in the operation of inherently dangerous activity. The enterprise is strictly and
absolutely liable to compensate all those who are affected by the accident and such liability is not
subject to any of the exceptions which operate vis--vis the tortious liability or strict liability

25
ibid
26
Singalanka Standard Chemicals Ltd v. ThalangamaAppuhamilageSirisena and Others;
C.A. 85/98; M.C Homagama 31286, pp 14
27
(1987) 1 SCC 395
under the rules of Rayland v. Fletcher
28
.
29
In my opinion the judge has highlighted on the fact, if
the environment is getting polluted, it will be the polluter who is responsible for it and needs to
bear the cost of it. This principle in other hand shows the responsibility a polluter has towards the
society back, because the environment is the core base of every human life on the planet.
Principle of Precaution
This Principle involves the anticipation of environmental harm and taking measures to avoid or
choose the least environmentally harmful activity. The said principle in its turn has also led to
the special principle of burden of proof in the environmental cases. Herein, the burden of proof
as to the absence of injurious effect of the actions proposed was placed on those who wanted to
change or have changed the status quo. This amounted to a reversal of the burden of proof as it
would be unfair to order those who opposed the change to shoulder the burden (Vide. 1996,
5SCC 647 -A.P. Pollution Control Board v. Professor M.V. Nayudu 1999, 2 SCC 718).
30

In the case Bulankulama v. Secretary Ministry of Industrial Development
31
it was mentioned that
it is the license holder who needs to lead evidence and satisfy the court that he has not violated
conditions in the license. If the conditions are unreasonable and against concept of sustainable
development then the remedy would lie elsewhere by way of a fundamental rights application in
the Supreme Court of by way of writ in the Court of Appeal.
32
The interesting fact is that in this
case the judge has gone further and stated that even if it is found that the respondent has not
violated the conditions laid down in the license still, if the act complained it is hazardous, and it
appears to Court that the relevant licensing authority had not applied its mind to the safety of the

28
(1995) SCC 77; (1996) 3 SCC 212
29
Singalanka Standard Chemicals Ltd v. ThalangamaAppuhamilageSirisena and Others;
C.A. 85/98; M.C Homagama 31286, pp 15
30
ibid, pp 16
31
(2000) 3 SLR 243
32
Singalanka Standard Chemicals Ltd v. ThalangamaAppuhamilageSirisena and Others;
C.A. 85/98; M.C Homagama 31286, pp 16
people, the Magistrate has the power to make an order to prevent a nuisance if he is satisfied
thatthe nuisance should be abated
33
. (Vide. TehiriBandhVirodhiSangashSamithi v. State of
Uthar Pradesh
34
)
Universal Obligations (ergaomnes)
This concept has been very precisely but emphasizing on the importance of the Universal
Obligation has been expressly stated in this case. The judgment states that there are
environmental rights which is distinct from ordinary civil rights and that they could be called as
universal rights. Under universal rights, rights such as pollution free water and inter-generational
right to natural resources could be given as examples. The decision also state why it becomes a
universal obligation is because environmental hazards affect not only the present generation but
also generations to come and the right to a healthy environment is a right even the unborn
have.
35
The reason behind identifying it as a universal obligation is because environment
hazards will not affect only particular individual but also it can impact on the entire universe.
Also it carries the feature that it is not possible to compensate and the judgment highlight it by
stating as follows; the harm or the evil that may cause would be irreversible and lasting, the
effects of which cannot be compensated.
36

The Principle of Trusteeship and the Principle of Intergenerational Rights
The principle of trusteeship and the principle of intergenerational rights and the principle of
development and environment conservation must go hand in hand, land is to be respected as
having a vitality of its own and being integrally linked to the benefit of the community when it is
used by human, every opportunity should be afforded to replenish its resources. There is a duty

33
ibid, pp 17
34
(1992) SU1 SCC 44
35
Singalanka Standard Chemicals Ltd v. ThalangamaAppuhamilageSirisena and Others;
C.A. 85/98; M.C Homagama 31286, pp 18
36
ibid
lying upon all the members of the community to preserve the integrity and purity of the
environment, this is a universal obligation which cannot be restricted by agreements between
private parties or between the state and private parties or between state and state.
37

Conclusion:
After observing all the issues, concepts, principles, rules and relevant authorities, judge is in the
view that the jurisdiction to try public nuisance matters should go unhampered and undeterred
or untrammeled by the ordinary rules which apply in ordinary matters to restrict the jurisdiction
of the Magistrates Court.
38
Therefore in this case decision concludes with the observation
where a statute creates a special remedy to the resolution of a certain class of disputes the
statute takes away the jurisdiction of the ordinary courts in respect of such matters would
become irrelevant in the case of an act of public nuisance causing environmental hazards and
thus the jurisdiction of the Magistrates Court to proceed under Chapter IX of the Criminal
Procedure Code in the case of an act of public nuisance is not ousted by the provisions of the
National Environmental Act.
39
In my view this judgment has observed the issue in question
successfully while addressing the other important aspects too very attractively which needs to be
looked at when it is a case upon an environmental issue.


37
ibid, pp 19; The decision further refers to the case of Hungary v. Slovakia opinion of Vice President His
Eminence Lord Justice Weeramantry (Deputy President of the International Court) which popularly known as the
Danube Case. Natural resources are not individually but collectively owned and the principle of their use is that
they should be used to the maximum to service the people. When we enter the Greenhouse obligations which
operate universally and collectively, rather than inter partes, rules based on individual standards and procedural
compliance may be inadequate. The great ecological questions now surfacing the court is food for thought upon this
mater Vide (Bulankulama v. Secretary Ministry of Industrial Development supra).
38
ibid, pp19
39
ibid, pp 20