Legal Services and Laws of Sri Lanka

SLR-1997 Vol.2-P306

SLR - 1997 Vol.2, Page No - 306

C.A. 137/96.
DECEMBER 17, 1996.
Certiorari - Permit to run a Zoo - Locus standi - Implementation and Enforcement of the taw relating to nature, its
conservation and the environment - Constitution Articles 28(f) and 29.

Fauna and Flora Protection Ordinance No. 2 of 1957 - Amended by Act, No. 49 of 1993 - Section 55 - Alternative remedy.
The petitioner, a public interest environmental law and advocacy organisation soughtawritofcertioraritoquashthe
authorisation issued by the Director, Department of Wild Life Conservation (2nd respondent) granted to the 3rd respondentto
possess and display 30 species of mammals, reptiles and birds and the decision of the 1st respondent Minister to restorethe
Permit which was earlier revoked. It was contended that a permit cannot be issued to run a private Zoo, in terms of Act,No.
49 of 1993.
It was also contended that, it is an offence to take writ to have in one's possession 26 speciesofmammals,reptilesand
birds listedinthepermitexceptforthepurposeofprotection,preservation,propagation,scientificstudyor
investigation, unless the Zoo is a National Zoo.

(i) As a party genuinely interested in the matter complained of, the petitioner has focus standi to make this application.
(ii) Section 56(2) of the Ordinance No. 2 of 1937 (as amended) gives any person aggrieved by the revocation of apermitthe
right to appeal to the Minister, and the decision of the Minister is final and conclusive (section 56(4)).Inviewofthe
preclusive clause, court will not interfere with an orderexceptinthecircumstancessetoutinsection22ofthe
Interpretation Ordinance.
The petitioner has not satisfied court that either the 1 st or the 2nd respondent had acted contrarytotheprovisionsin
section 22.

If the 3rd respondent (the owner of the Zoo) has breached the conditions in the permit the petitioner has the righttomake
representations to the 2nd respondent - Director of Wild Life Conservation, for necessary action in terms of theclausesin
the permit.
Since breach of the conditions in the permit is a matter which court is not in a position to monitorcontinuously,itwill
not make orders it cannot effectively enforce.

APPLICATION for a Writ of Certiorari.
Cases referred to:
1. Premadasa v. Wijewardena - [ 1991 ] -1 Sri L. R. 333 at 343.
2. Simon Singho v Government Agent, WP - 47 NLR 545.
3. Wijesiri v. Siriwardena [1982] -1 Sri LR 171.
4. R. v. Paddington, Valuation Officer 1966 1 QB 380.
5. R. v Thames Magistrates Court (1957) 55 LR 129.
6. Re Forster (1863) 4 B & S 187.
7. Sama Lanka Ltd., v Weerakoon [1994] -1 Sri LR 405.
Lalanath de Silva with Mihiri Gunaratne for petitioner.
K. C. Kamalasabayson, P.C., A.S.G. with S. Sri Skandarajah SSC for respondent.
F. Musthapa, P.C. for 3rd respondent.
December 17, 1996.
The petitioner, Environmental Foundation Ltd., a public interest, Environmental, LawandAdvocacyOrganisationhasfiled
this application inter alia
(1) for a writ of certiorari quashing the authorisation(1R1),issuedbythe2ndrespondent,Director,Departmentof
Wildlife Conservation, to the 3rd respondent, Masahim Mohamed, to possess and display 30 speciesofmammals,reptilesand
birds specified therein.
(2)for a writ of certiorari quashing the decision of the 1st respondent, Minister of Public Administration,conveyed
by letter dated 22.9.95 (2R17), to restore Permit No. Va/Sa/San 1.5.62, dated 27.8.93 (1R1), subject totherestrictionof
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 1 R1, issuedby
the 2nd respondent. The Zoo is open to public on payment of an entrance fee of Rs. 15/- and Rs. 100, from localandforeign
visitors respectively. The permit lists 30 species of mammals, reptiles and birds and the number of each speciesthatcould
be possessed and exhibited. 1R1 also lists six conditions under which it is issued. Thepetitionerstatesthatitisan
offence to take and to have in one's possession 26 species of mammals, reptiles and birdslistedin1R1,exceptforthe
purpose of protection, preservation, propagation or for scientificstudyorinvestigation.OnlyaNationalZooitis
submitted may be allowed such an exemption. The petitioner contends that in the circumstances, 1R1 that hasbeenissuedby
the 2nd respondent, is illegal, null and void. The petitioner has also alleged that the 3rd respondent has in hispossession
a sloth bear not included in the permit and five pythons in excess of the number permitted by 1R1, and the permitshouldbe
revoked in terms of condition no. 6.

The petitioner filed an earlier application No. 933/94, before this Court seeking inter alia, a writ ofcertiorariquashing
1131. While that application was pending, permit 1R1 was revoked by letter dated 27.7.95 (B), sent by the 2ndrespondentto
the 3rd respondent. The 3rd respondent then appealed to the 1strespondentagainstorder(B),byletterdated1.8.95,
(3R2/1R1). The 1st respondent after calling for and considering the reportsfromthe2ndrespondent,theSecretaryand
Additional Secretary of his ministry had decided to restore 1R1, on condition that the speciesandthenumberofanimals
kept in the 3rd respondent's possession should be restricted tothespeciesandnumberspecifiedinthepermit.That
decision was conveyed to the 3rd respondent by 2R17/3R3. On an application made by thepetitionertowithdrawApplication
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 standiitomake
the present application. He submits that the law as to locus standi to apply for Certiorari may bestatedasfollows the
writ can be applied for by an aggrieved party, who has a grievance or by a member ofthepublic.Iftheapplicantisa
member of the public, he must have sufficient interest to make the application". Premadasa v.Wijewardena(1).Locusstandi
in relation to mandamus is more stringent. The petitioner must have .apersonalinterestinthesubjectmatterofthe
application., Simon Singho v. Government Agent W P.(2). Counsel for thepetitionerontheotherhandsubmitsthatthe
petitioner has as its objectives the protection of nature and the conservation of its riches. - (videP1,P2,P3).Itis
genuinely concerned with the implementation and enforcementofthelawrelatingtonature,itsconservationandthe
environment in general and is performing a duty cast on it by Article 28(f) of the ConstitutionofSriLanka,toprotect
nature and conserve its riches. It is to be noted, however, that Article 29 of the Constitution provides that theprovisions
of Chapter VI do not confer or impose legal rights or obligations 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 anapplicant,
who can show a genuine interest in the matter complained of and that he comes beforeCourtasapublicspiritedperson,
concerned to see that the law is obeyed in the interestsofall:See:WijesirivSiriwardena(3).lessanycitizenhas
standing, therefore, there is no means of keeping public authorities within the law, unless the Attorney-General willact-
which frequently he will not. That private persons should be able to obtain some remedywastherefore"amatterofhigh
constitutional principle". - Lord Denning M.R. - R v. Paddington ValuationOfficer(4).NeverthelesstheCourtwouldnot
listen to a mere busybody who was interfering in things which didnotconcernhim.Butwilllistentoanyonewhose
interests are affected by what has been done. See: R v. Paddington (supra). In any event, if the application is made bywhat
for convenience one may call a stranger, the remedy is purely discretionary. See: Parker,J.inR.vThamesMagistrates
Court(5). Court retains the discretion to refuse to act at the instance of a mere strangerifitconsidersthatnogood
would be done to the public. See: Re Forster(6). As a party genuinely interested in the matter complained of, thepetitioner
has the locus standi to make this application.
The petitioner's complaint is that section 55 of the Fauna and Flora Protection Ordinance, No.2of1937,permitsthe2nd
respondent by a writing under his hand to authorise any person to do any act otherwise prohibitedorpenalizedunderthat
Ordinance or any regulation made thereunder, if in the opinion of the 2nd respondent such act should beauthorisedforthe
protection, preservation or propagation, or for scientific study or investigation, or for the collection of specimensfora
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 20.10.93, the words "for a Zoo" have been replaced by the words "For a nationalZoo".The3rd
respondent's Zoo is a private Zoo. Therefore, it is contended the permit 1R1 issued by the 2nd respondentisillegal,null
and void. It is submitted, the restoration of permit 1R1, in the purported exercise of the powers undersection56ofthe
Ordinance by the 1st respondent, is also made without jurisdiction and therefore null and void.

The 1st respondent has affirmed that permit 1R1, was issued prior to the certification oftheFaunaandFloraProtection
(Amendment) Act. This statement of the 1st respondent has not been challenged by the petitioner by way.ofaffidavit.Upon
the revocation of 1R1, by the 2nd respondent the 3rd respondent has appealed to the 1st respondent, who asadmittedbythe
petitioner in paragraph 6 of the petition, is the appellate authority for the purpose of permits and licencesundersection
56 of the Ordinance. In paragraph 8 of the petition filed in application 933/94, (A) the petitioner has admitted 1131wasa
"permit" issued by the 2nd respondent to the 3rd respondent to possess and display 30 species of mammals, reptiles andbirds
specified in the said permit (vide clause 6 of 1R1).
Section 56(2) gives any person aggrieved by the revocationofapermitorlicencetherighttoappealagainstsuch
revocation to the Minister, and a decision of the Minister on any appeal under section 56(2) shall befinalandconclusive
in terms of section 56(4). In view of the preclusive clause, this Court will not and cannotinterferewithsuchanorder
except in the circumstances set out in section 22 of the Interpretation Ordinance. That is, where, (a) the order madeisex
facie not within the power conferred on the person making suchdecision,(b)thepersonmakingsuchdecisionhasnot
followed a mandatory rule of law or (c) failed to observe rules of natural justice in the process ofmakingsuchdecision.
See: SamaLanka Ltd. v. Weerakoon(7). The petitioner has not satisfied this Court that either the 1st or2ndrespondenthas
acted contrary to (a) to (c) above relifs, c and d, claimed by thepetitionerstemfromreliefsaandb.Ifthe3rd
respondent has breached the conditions in 1R1, by either possessing mammals, reptiles andbirdsinexcessofthenumber
permitted by 1R1, or keeping the sloth bear without authorisation of the 2nd respondent, the petitionerwillinanyevent
have the right, as it has already done, to make representations to the 2ndrespondentfornecessaryactionintermsof
clause 6 of 1R1. Since breach of the conditions in 1R1 is a matter which Court is not in a position to monitorcontinuously,
primarily because of the natural increase by breeding - (vide 3R4), it will not make orders itcannoteffectivelyenforce.
Reliefs e, f and g are matters preliminary to the hearing of the application. Since the petitioner hasfailedtoestablish
sufficient grounds for reliefs a and b. The application is dismissed without costs.

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