|Category||Right to an adequate standard of living|
|Date of Judgment||20-01-2004|
|Link / Attachment||https://www.elaw.org/content/sri-lanka-mundy-vs-central-environmental-authority-and-others-sc-appeal-582003-decided-20-ja|
The Government of Sri Lanka had decided to construct the Southern Expressway in order to link Colombo and Matara. The parties to the appeals in this case agreed that the project itself was of national importance, but the appellants complained in regard to the proposed route of the Expressway, which adversely affected their lands. The Court of Appeals had dismissed all applications. The petitioners appealed to this Court.
The Central Environmental Authority had approved the trace subject to numerous conditions, including that the project proponent should obtain fresh approval in respect of any alterations that were intended to be made to the project. Thereafter, the project proponent prepared what was described as the "Final Trace". The Appellants complained that they were denied an opportunity of being heard before the adoption of the final trace, that there was no supplementary Environmental Impact Assessment, and that approval by the Central Environmental Authority was not obtained for the final trace.
The Supreme Court considered the relevant legislation, the authority’s power to grant approval, the rights of the appellants to notice and to be heard in regard to "deviations" that were made to the original proposal, and the power and the discretion of this Court in regard to the grant of relief.
The court was of the view that the purposes of an Environmental Impact Assessment would not be achieved if changes to the proposal were treated as not being alterations. The Appellants were entitled to notice and to be heard before the final trace was approved. It emphasized that the Court of Appeal seemed to agree that the rights of the Appellants had been infringed. While the circumstances were such that the Court could reasonably have concluded that, on balance, the final trace should be left undisturbed, one of the major considerations was cost. If a judicial discretion was exercised in favour of the State, inter alia, to save costs, it was only equitable that the appellants should have been compensated for the injury to their rights.
If it was permissible in the exercise of a judicial discretion to require a humble villager to forego his right to a fair procedure before he was compelled to sacrifice a modest plot of land and a little hut because they were of "extremely negligible" value in relation to a multi-billion rupee national project, it was nevertheless not equitable to disregard totally the infringement of his rights: the smaller the value of his property, the greater his right to compensation.
The court concluded that the deviations proposed by the project proponent were alterations requiring approval by the Central Environmental Authority; that despite the lack of such approval, the refusal of relief by way of writ, in the exercise of the Court’s discretion was justified; but that the Appellants ought to have been compensated for the infringement of their rights. To that extent, the appeals were allowed, and the court granted an order directing to pay compensation to the appellants.
(Excerpt from the Judgement)
I therefore grant and issue an order in the nature of a writ of Mandamus directing the CEA to require the RDA to pay, and directing the RDA to pay, each of the Appellants compensation in a sum of Rs 75,000/-. That will be in addition to the compensation payable by the State under the Land Acquisition Act, and in terms of the CEA approval and the compensation package referred to by the Respondents in their written submissions. To preclude further delays, misunderstandings and allegations of victimization, I further direct that the Appellants shall have the right to accept such compensation and to hand over possession of their lands without prejudice to their rights of appeal in respect of the quantum of compensation.
In respect of costs, I direct the RDA to pay the Appellant(s) in each appeal one set of costs in a sum of Rs 50.000/- (aggregating to Rs 150,000/- for the three appeals) and to reimburse them in respect of all sums paid towards the costs, expenses and fees of the Judicial Committee.