AJITH DHARMASURIYA

VS.

MAHAWELI AUTHORITY OF SRI LANKA AND OTHERS

SUPREME COURT
K. SRIPAVAN, CJ.
NALIN PERERA J.
SC FR APPLICATION No. 330/2015
23.09.2016

Constitution Article 28-Article 126-Directive Principles - Fundamental Rights to be interpreted in the light of the Directive Principles - Role of the Apex Court in Fundamental Rights applications - Rule 44(1) of Supreme Court Rules of 1990 - Applicability of Article 126 (4) - Procedural Rules secondary to Constitutional guarantees - Rule of Law

The application was taken up for support. Preliminary Objection was raised by learned President's Counsel, for 10th to 12th, 14th and 15th Respondents, on maintainability of this application, on the following grounds.

(a) Lapse of time under Article 126 of the Constitution

(b) Failure to comply with Supreme Court Rules 44 (1) (b) of Part IV, of rules of 1990.

Held:

Per K. SRIPAVAN, CJ.

"The Judges of the apex Court cannot shut their eyes to injustice, otherwise, the apex Courts would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution. The Court cannot permit a repetition of a wrong action by the 1st Respondent Authority after the judgment was delivered in 2010. In any event this application is not time barred. I over rule the first preliminary Objection."

"It must be noted that in terms of Article 126 (4) of the Constitution, the Supreme Court has the power to grant such relief or make such directions as it may deem just and equitable in respect of any Petition. "Any procedural rules must be considered secondary to the constitutional guarantees".

This is an extensive jurisdiction and it carried with it all implied powers that are necessary to give effect and expression to our jurisdiction. We

would include within our jurisdiction, inter alia the power to make interim orders and to add persons without whose presence questions in issue cannot be completely and effectually decided. In fact, our present decision in no way widens the ambit of Article 126 but seeks to articulate its real scope and make the remedy more effective."

Thus, the Court cannot dismiss the application merely because the Petitioner has failed to name the Respondents. The Court directs the Petitioner to include the names of the Officers who hold the Offices of the Second, Third, Fourth and Fifth Respondents within a period of two weeks from today in order to consider the application further.

(1) The Fundamental Rights referred to in Chapter III of our Constitution should be interpreted in the light of the Directive Principles of State Policy and the fundamental duties referred to in Article 28. By defining the constitutional goals, the Directive Principles and fundamental duties referred to in Article 28, set forth the standards or norms of reasonableness which must guide and animate governmental action.

(2) If no one can maintain an action for redress of a public wrong or public injury, it would be disastrous to the rule of law for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. The strict rule of standing which insists that only a person who had suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule evolved which gives standing to any member of the public who is not a mere busy body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or its agencies by any citizen will induce the State or its agencies to act with greater responsibility and care thereby improving the administration of justice.

APPLICATION under Article 126 on a Preliminary Objection taken.

Cases referred to:

1. U. P. Pollution Control Board vs. Bhupendra Kumar Mody (2009 ) 2 SCC 147.
2. SC FR