Somapala Fernando v. S.C. Fernando

The Petitioner was to construct a brick kiln close to the Respondent’s house. The Respondent complained that the smoke emitted by the brick kiln would pose a threat to the health of those in the neighborhood. The Respondent claimed that, in addition being harmful to the inhabitants of his house, the smoke would also cause damage to his property.

The Respondent lodged a complaint with the police against the Petitioner in this regard. However, the Petitioner ignored the warnings of the police directing him to avoid causing environmental pollution.

Accordingly, the police filed a report under section 98(1)(b) of the Criminal Procedure Code. Under this Section, the Magistrate is required to ‘remove or suppress trade or occupation’, which may be ‘injurious to the health or physical comfort of the community.’

To substantiate their complaint, the Respondents produced a letter stating that the smoke emitting by the brick kiln would be a threat to the health of their neighbours, and therefore a public nuisance.

While the Magistrate’s Court discharged the appellant, the High Court acting in revision quashed the order of the Magistrate’s Court. The High Court directed the Magistrate to order the petitioner to demolish or terminate operations, and remove the brick kiln. This was done on the basis that the construction of the brick kiln did not comply with the requirements of the Central Environmental Authority (CEA), as there should have been a distance of 200 meters between the kiln and residences.

The Court of Appeal stated that the High Court misdirected itself when it held that the permission from the Central Environmental Authority was needed to construct a brick kiln. It further held that the decisive question in this instance was not whether the license from the CEA was obtained, but rather whether the evidence conclusively proved that the activities of the brick kiln posed a threat to the health of those in the vicinity.

On this question, the Court considered that the kiln could be considered only a private nuisance, and not a public nuisance, because it could not be shown that the kiln affected the health of the neighbourhood, as opposed to just the petitioner's house. The Court  took into consideration that only the Petitioner and his wife that gave evidence in Court stating that the smoke emitted would be a threat to the health of those in the neighbourhood, and that these claims were not backed up by other neighbours of the kiln.

In reaching its decision, the Court considered that no other neighbour was produced before Court to give evidence of the health hazard to the neighbours. In addition, the Courts found that a letter of complaint produced before Court was written by the Petitioner himself, and was thus hearsay evidence. The Court also questioned a document signed by 33 neighbours in the presence of a Grama Seva Niladari (government officer). Even though the Grama Seva Niladari was produced before the Court, he was not questioned as to the ‘correctness of the document.’

The Court therefore held that the evidence only proved a private nuisance and not a public nuisance.

“The above items of evidence may have been useful if there was initially evidence to show that the smoke emitted or likely to be emitted was causing a nuisance to the residents in the vicinity. The evidence led at the Magistrate's Court at best goes to prove a private nuisance as opposed to a public nuisance the only witnesses being the husband and wife.”  2002 SLR 3V 388, 392.