ENVIRONMENTAL FOUNDATION {GUARANTEE) LTD AND ANOTHER

ENVIRONMENTAL FOUNDATION {GUARANTEE) LTD AND ANOTHER

VS.

DIRECTOR GENERAL OF WILDLIFE CONSERVATION AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
OBEYESEKERE, J.
CA/WRIT/51/2018
JULY 2, 2020

Writs of mandamus and prohibition-Fauna and Flora Protection Ordinance, No. 2 of 1937, as amended, sections 2(1), 2(5)-Gazetted orders required to be approved by Parliament-Oaths and Affirmations Ordinance, No. 9 of 1895, as amended, sections 9, 12(2)- Supreme Court Rules 1978, rule 46-Court of Appeal (Appellate Procedure) Rules 1990, rule 3(1)(a) and 3(8)-Defect in the affidavit in support of the petition- Technical objections that go to the root of the case

The two petitioners filed this writ application as public interest litigation seeking reliefs mainly against the 1st and 2nd respondents, the Director General of Wildlife Conservation and the Minister of Sustainable Development and Wildlife, respectively, on the basis that the religious festivities of the Pallekandal St. Anthony's Church located inside the Wilpattu National Park are in violation of the Fauna and Flora Protection Ordinance, No. 2 of 1937, as amended.

The 4th respondent and the other added respondents took up two preliminary objections. One preliminary objection was that the declaration of the area by the subject Minister as the 'Wilpattu National Park Block V' by Gazette dated 07.12.1973 was not approved by Parliament, as required by section 2(5)(b) of the Fauna and Flora Protection Ordinance, and therefore has no legal validity. The other preliminary objection was that there was no valid application before court inasmuch as the affidavit in support of the petition was attested by an employee of the 1st petitioner in contravention of the proviso to section 12(2) of the Oaths and Affirmations Ordinance, No. 9 of 1985, as amended.

Held :

1. Section 2(5)(b) of the Fauna and Flora Protection Ordinance is applicable only to section 2(5)(a), that is, when the Minister

decides to alter or vary the limits of any National Reserve or Sanctuary. In this instance there was no alteration or variation of the existing limits but a declaration of a specified area of Crown land to be a National Reserve and National Park. Section 2(5) (b) has no application to section 2(1) by which the Minister made the impugned order. It was for the first time by Act No. 22 of 2009 that the approval of Parliament was made necessary for orders made by the Minister under section 2(1 ). The Minister gazetted the order in 1973. The amendment has no retrospective effect.

2. Every application made to the Court of Appeal invoking the writ jurisdiction of the court shall be by way of petition and affidavit. An accompanying affidavit in support of the averments contained in the petition is a sine qua non for the constitution of a proper application.

3. The Commissioner for Oaths who attested the affidavit of the 1st petitioner was an employee of the 1st petitioner at the time of the attestation of the affidavit. This is contrary to the express provisions contained in the proviso to section 12(2) of the Oaths and Affirmations Ordinance, No. 9 of 1895, which enacts "a Commissioner for Oaths shall not exercise the powers given by this section in any proceeding or matter in which he is attorney-at-law to any of the parties, or in which he is otherwise interested." The Commissioner for Oaths who attested the affidavit was "otherwise interested'' in the matter affirmed to before her.

4. The defect in the affidavit cannot be cured under section 9 of the Oaths and Affirmations Ordinance. When there is an express prohibition in the statute, the court cannot override it by the application of a preceding general provision.

5. When there are several parties to an application, there is no requirement for each party to file separate affidavits. But the affidavit tendered by the 2nd petit

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