MOUNT LAVINIA MAGISTRATE COURT
In the matter of an application for an order for removal of public nuisance in terms of Sec. 98(1) of the Criminal Procedure Code.
2)Ranaweera Arachchige Don Ajith Hemantha
3)Lalith Bandula Kariyawasam
6)Taradeniya Bandarage Ariyaratne Plaintiffs Case No.46086
VS Dehivala-Mount Lavinia Municipal Council Respondants
Respondants Municipal Council-Dehivala-Mount Lavinia Plaintiffs
1)Hettiarachchige Premasiri present
2)Ranaweera Arachchige Don Ajith Hemantha present
3)Lalith Bandula Kariyawasam present
4)Kapuruge Wickramasena absent
6)Taradeniya Bandarage Ariyaratne present On behalf of the plaintiffs
– Order –
1. Miss Amarasinghe Attorney-at-Law appears for Respondents. Miss Asha Dhanasiri appears for plaintiffs. Order was delivered in open courts. Order Since I am not satisfied that the facts presented by the respondents are sufficient enough to set aside the interim Order I decide the said order to be an absolute order . Further since the Respondents had a long time to remove this nuisance but have failed to take any step towards that I order the said Order to be an absolute Order. Further more I order to cover the remaining garbage with soil so that the stink will be removed and to act as to remove the said nuisance and report to court before two months.
If there is a disobedience to the above order I order the registrar to issue notices informing that actions will be taken against responds under 100(2) of the Criminal Procedure Code.
2. Reasons for Order are filed.
3. Proceed according to the above order and call for reports.
4. Issue a copy of relevant Order on due fees on the request of a party.
(Before the Mount Lavinia Magistrate K.H. Sumitrapala)
Mount Lavinia Magistrate Court, Mount Lavinia.
Reasons for judgment
1. Petitioners filing affidavits and other documents naming Respondents-the Dehivala- Mount Lavinia Municipal Council under Sec.98.1 of the Criminal Procedure Code, has stated that during around five years of time respondents are dumping garbage in their area causing ill health, insect problems with rapid growing of mosquitoes and flies and polluting well water by mixing of garbage with rain water.
2. Further they have stated that although they have informed about this nuisance to relevant authorities no step has been taken; no result occurred from their letters to mayor of Mount Lavinia and they have informed the Executive Director of Central Environmental Authority regarding this matter too. Documents are filed in this regard. Hence they have pleaded for a Conditional Order halting this dumping of garbage, to make the said Conditional Order absolute and for an Interim Injunction to destroy the already dumped garbage with care.
3. Notices have been issued against Respondents, appearances have been made in court and evidence has been lead. When considering evidence on behalf of Respondents, doctor Chandrasekara giving evidence stated that he has been serving as a medical officer for 35 years and has been serving in Municipal Council for about 8 years, a programme for pollution of environment in the area had been launched and there has been a decrease of amount of patients in accordance with programme. In the cross-examination of this witness, his evidence did not remove the occurring of a public nuisance out of the dumping of garbage.
4. Then the public Health Instructor of Dehiwala -Mount Lavinia Municipal Council giving evidence told that he is working in the Municipal Council for 17 years, and for 5 years he has been working in this relevant area. He also stated that steps have been taken to cover the garbage with soil after dumping them into the area. Further he has stated that in 1999 there were two Filaria patients in this area but that cannot be called because of the dumping of garbage, the stink in the area of dumping has been reduced applying enzymes and if the walls around the wells constructed to a height of three feet inconvenience from water also can be prevented. However his evidence has not removed that there is a nuisance to the public though it says the stink and the illnesses can be abated.
5. Public health instructor Karunaratne in his evidence stated that Dengue mosquitoes grow in clear water and that removing garbage is a public service, which will create a greater nuisance if not been done. Further engineer Vanigasuriya giving evidence for Colombo Municipal Council stated that an alternative method has been taken to dump the garbage which are being dumped in the area relevant to this case and Road Development Authority of Western Province has already sent Rs.200, 000 for that .He mentioned that it was stated that there is a disturbance to public health in that area too. Further he has stated that steps have been taken to cover the garbage in the area in dispute.
6. Like this several witnesses giving evidence for respondents have stated that Dehivala-Mount Lavinia Municipal Council is removing garbage of one and a half lacks of general public and if it is not done there will be a greater public nuisance caused.
7. Leading evidence for plaintiffs it was stated that people living in plaintiff`s houses face with illnesses because of the stink from the garbage and this stink seems to be difficult to be removed and further that well water is getting polluted by this garbage being taken away and left here and there by birds and other animals. Further more it was stated that diseases are being spread with the increased growing of mosquitoes and flies.
8. Venerable Bellanvila Vimalaratana Thero giving evidence has stated that this dumping of garbage is harassment to his temple too. Further it was stated for the plaintiffs that area of dumping garbage is a part of the bird sanctuary.
9. According to the facts forwarded by the plaintiffs there is evidence that their houses are absolutely affected by this dumping of garbage. Both parties have accepted that a large amount of garbage is being dumped here per day. Plaintiffs have given evidence that covering of garbage is not being done properly and respondents has stated that it is not so. However Respondents have accepted that there could be an unpleasant odor up to some amount. Therefore after considering the facts that the both parties have agreed, I am not satisfied with the facts forwarded for not making the Interim Order absolute.
10. Since the Respondents had a long time to remove this nuisance but have failed to take any step towards that I order the said Interim Order prohibiting the dumping of garbage in the said area to be an absolute Order.