LAW YOG
Public Nuisance

Public Nuisance

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A nuisance is an act which is harmful or offensive or causes annoyance or trouble to someone. In Law, one can ask for legal remedies when someone commits such an act. Blowing unnecessary horn in a dense public area, throwing garbage at someone’s lawn are some of the examples of an act creating Nuisance. If someone commits a nuisance, he is liable to give legal remedy to the sufferer. But what if there are more than one sufferers? For this reason,

Nuisance has been divided into two categories.

  • Private Nuisance:  Any act that causes annoyance or discomfort or harm, to an  Individual owner, or anyone that is not categorized as ‘Public’, is considered as a Private Offense. For example; Throwing smelly garbage at the neighbour’s lawn.
  • Public Nuisance: Any act that causes or discomfort or harm, to Public or Society or People in general, is considered as a Public Nuisance. For Example; Obstructing a public road.

In this article, we will see all thing related to Public Nuisance.

What is Public Nuisance

Any act that causes annoyance or discomfort or harm, to Public, or Society or People in general, is considered as a Public Nuisance. As the act infringes the rights of the people, hence the liability of a person committing Public Nuisance is Criminal in Nature and the remedy is punitive in the form of fine or imprisonment. In Indian Law, Indian Penal Code provides the definition of Public Nuisance. 

As per Indian Penal Code1, “A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.” 

To understand Public Nuisance, we will first need to understand what ‘Public’ and ‘Person’ means in law. As per IPC, ‘Public’ means a general body of the human race, community, State or Nation2, whereas a ‘Person’ includes any Company or Association or body of persons, whether incorporated or not3. Any person who commits an act, that causes annoyance or danger or injury to the public or to people who are living or occupies some kind of property near the cause of action, commits a Public Nuisance.

For example, smoking cigarettes or bidis in a public place is a Public nuisance, as it creates passive smoking to the public, which is dangerous for the people roaming around in public4.

Not committing an act can also be considered under Public Nuisance, if there is a lawful duty which has not been performed by the accused, and that omission created an annoyance or injury or danger to Public. For example, A person was appointed to manage traffic is a city’s crossover, one day he fall asleep in his office and because of that the crossover was jammed with traffic causing annoyance to the Public.

It should also be noted that the act or omission committed by the person, should be an unlawful act or omission. If someone commits an act or omission that is lawful and under his rights, and that resulted in nuisance, then it would not be considered under Public Nuisance. As in the case of Q.Emp. vs Byramji Edulji5, the defendant was keeping meat exposed in the view of the public, the complainant was annoyed by that act. The court held that this act would not amount to Public nuisance.

It should also be noted that the unlawful act or omission should be committed in a Public Place. For example, gambling in a public place may attract Public Nuisance, but gambling in a private place would not be considered under Public Nuisance if no annoyance is caused to public6.

Public Nuisance under CrPC.

CrPC or Criminal Procedure Code provides procedure and conduct that should be followed in Criminal Matters. As Public Nuisance is also a criminal matter, CrPC has provided a procedure for the removal of Public Nuisance. Such as

1. Section 133 of this code, provide powers to the District Magistrate or Sub-District Magistrate or an Executive Magistrate to:

  • Remove any unlawful obstruction causing Public Nuisance.
  • Prohibits or Regulates, the conduct of any trade or occupation that is injurious to health or physical comfort of the community.
  • Prevent or Stop any construction or disposal of any substance that can cause an explosion.
  • Remove or Adjust any structure including tree, that may cause injury to the nearby neighbourhood.
  • Provide fencing for wells, excavation or tanks that are adjacent to a public place.
  • Destroy or Dispose of or Confine any animal that is dangerous to the public.

The objective of this section is to prevent the Public Nuisance, and the Magistrate has to work through a source like Police report or any other report. A magistrate is not permitted to take evidence in the form of an affidavit. He is bound to record evidence as recorded in a summon case7.

2. The Magistrate can also give a conditional order to the person creating obstruction or annoyance to the public, to perform the instruction mentioned in Section 133 of this code. If that person does not perform the order or fails to perform the instruction, he will be punished with imprisonment of either description extended to 6 months or with fine up to 200 rupees, or both8. And if his act causes danger to human life and safety or tends to causes riots,  then he will be punished with imprisonment of either description up to 6 months, or fine up to 1000 rupees, or both9.

Public Nuisance under CPC?

Although public nuisance being a criminal offence has its procedure in CrPC, we can also see some parts of it in CPC or Code of Civil Procedure too. Section 91 of this code gives the power to file a civil suit in the case of Public Nuisance. For the matters of CPC, the definition of ‘Public Nuisance’, is the same as provided in IPC. 

This section was made to provide a parallel remedy for criminal jurisdiction or damages under Torts. But under CPC only Advocate General or two or more member, by the consent of the Advocate General may file a suit for declaration and injunction or any relief appropriate with the circumstances.

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Constitutional Remedy for Public Nuisance

Public Nuisance is the nuisance that affects the Public. The Constitution safeguards the public, especially under Article 21 of the Indian Constitution, people have the fundamental right to life and live with dignity. Hence the article can be interpreted to safe people from public nuisance too. To protect that a person can file a PIL or Public Interest Litigation, where one can represent and file a suit where the matter concerns the public as a whole. One such example of such PIL’s was MC Mehta vs Union of India10, where MC Mehta filed a PIL at the Supreme Court of India, as there had been an oleum gas leak from the Shriram Foods and Fertilizers Ltd. at the complex of Delhi, causing public nuisance in the nation’s capital, where some people died and many more were hospitalized.

Landmark Cases on Public Nuisance

1. Bharosa Patak vs. Emperor,11 the complainants were the residents of two villages i.e Amam and Basarat and the defendant were the residents of Mauza Barkagaon. The land of Mauza Barkagaon lies at a lower level, hence when there is excessive rain, the waters from the complainant’s village flows down to Mauza Barkagaon. In 1885, there was a civil suit between parties with regards to the dam built by the Barkagaon people, to prevent the flow of the water. The court in that 1885 suit held that the dam should be maintained as it was broken from several places.

The complainant now pleaded to the court that, the people from the Barkagaon had extended their old dam both eastward and westward, which obstructed the flow of excess water along the natural channel which resulted in the land and crops of Amam and Basarat village damaged. The magistrate recorded all the evidence found out that it indeed obstructed the flow of water and ordered for the removal of the extension.

2. Rural Litigation and Entitlement Kendra vs State of UP12, where the Supreme Court held that pollution caused by quarries adversely affects the health and safety of the people, and hence, same should be stopped as being violative of Article 21.

Endnotes

  1. Indian Penal Code, 1860. s.268
  2. T. Bhattacharya, “The Indian Penal Code”, Central Law Agency 10th ed. p.11 (2019)
  3. Indian Penal Code, 1860. s.11
  4. K Ramakrishnan vs State of Kerala  AIR 1999 KER 385
  5. Q.Emp vs Byramji Edulji, (1887) 12 Bom 437.
  6. 6.  Santosh vs State, 1985 Cr LJ 756 (Ker)
  7. Deepak Goyal, “Law Related to Public Nuisance in India”,  ILJMH, Vol.2 Issue1, p.8 (2018)
  8. Indian Penal Code, 1860. s188.
  9. Id
  10. MC Mehta vs Union of India 1987 SCR (1) 819, AIR 1987 965
  11. Bharosapatak vs. Emperor (1912) CrLJ 183 (ALL)
  12. 1989 AIR 594, 1989 SCC Supl. (1) 537
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Aniket Kotnala

Student, Manipal University, Jaipur

Aniket has a keen interest over criminology and criminal trials. He’s exploring his interests in the field of law and wants to become a great criminal litigator. For any Clarifications, feedback, and suggestion, you can reach him at aniketkotnala2088@gmail.com

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