By- Meher Sunil Dabrai
Introduction
The word “nuisance” is a commonly used word in English that we often hear in our day to day lives but in legal terms the word “nuisance” means an act that is harmful or offensive to the public or a member of it and for which there is a legal remedy.
Public nuisance is of two types; public and private nuisance. A private nuisance is a civil wrong. It is the unreasonable or unwarranted use of one’s property in a manner that interferes with the enjoyment or use of another person’s property without actual trespass or physical invasion of the land. A public nuisance is a criminal wrong such as an act or omission that obstructs, damages or causes inconvenience to the rights of the community.
This article mainly focuses on the concept of Public nuisance as explained under the Code of Criminal Procedure.
What is public nuisance?
Public nuisance covers a large range of minor crimes that may threaten the health, morals or safety or the welfare of the community at large. The violator may be punished with a criminal sentence or fine or both. A defendant in such cases is often asked to remove the nuisance.
For example a person that may have damaged a road or public property may be asked to pay for the damages caused. Public nuisance may also be something that may affect the public health at large for example, keeping uncovered garbage in the open in a neighborhood or keeping a malarial pond.
Some other examples of public nuisances include burning of fireworks in a public place putting a lot of people at risk, storing explosives, practicing medicine without a license or harboring a dangerous animal. Others such as illegal liquor stores or unlicensed prize fights are examples of public nuisance that interferes with public morals. The earlier example of obstructing a highway or creating a condition to make travel unsafe is examples of threatening the pubic convenience.
In Velan Pakkiri versus Subbayan[1] a view was taken that the essence of public nuisance is that it causes damage, injury or annoyance to the public or people in general but an obstruction that may be aimed at preventing only a particular class of people from using a highway or public place in a particular manner does not and cannot amount to public nuisance as it does not cause nuisance to the entire “public” in general.
Under Section 268 of the Indian Penal Code “a person guilty of 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 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.”
Section 290 of the Indian Penal Code defines the punishment for committing a public nuisance. The section states that the person committing the public nuisance shall be liable of a fine of two hundred rupees and if the person further continues to create a havoc and nuisance even after the lawful public authority issues an injunction in such a case that the person will be liable for imprisonment which may extend to 6 months or fine or both under Section 291 of the Indian Penal Code.
In Vasant Manga v. Baburao Bhikanna Naidu[2] it was held that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence and it is not capable of a precise definition.
Procedure for Removal of Public Nuisance
Section 133 of the Criminal Procedure Code 1975 (hereon referred to as CrP.C) provides a rough and ready procedure to be used in urgent cases for the removal of public nuisance. The Section states that whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this of behalf by the State Government on receiving the report of a police officer or other information on taking such evidence as he thinks fit he considers-
- that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may lawfully be used by the public; or
- that the conduct of any trade or occupation or the keeping of any goods or merchandise is injurious to the health or the physical comfort of the community, that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or keeping thereof regulated
- that the construction of any building or the disposal of any substance as is likely to occasion the configuration or the explosion should be prevented or stopped or
- that any building, tent or structure or any tree that is in such a condition that it is likely to fall and cause injury to any person that is living or carrying on business in the neighbourhood or passing by and that in consequence the removal or the repair or the support of such a building, tent or the structure or the removal or the support of such a tree, is necessary; or
- that any tank, well or site of excavation adjacent to any such way or public place should be fenced in such a manner so as to prevent danger arising to the public; or
- that any dangerous animal should be destroyed, confined or otherwise disposed of.
Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-
- to remove such obstruction or nuisance; or
- to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
- to prevent or stop the construction of such building, or to alter the disposal of such substance; or
- to remove, repair or support such building, tent or structure, or to remove or support such trees; or
- to fence such tank, well or excavation; or
- to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
The Section also states that no order duly made by a Magistrate under this section shall be called in question in any civil court. “Public place” in the section includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary and recreative purposes.
Although every person is bound to do so uses his property such that it may not cause legal damage or harm to his neighbors or society, despite this no one has the right to interfere with the enjoyment of his property by the owner, except on clear and absolute proof that such use of it is by him is producing such legal damage or harm.
Therefore, a lawful and necessary trade need not be interfered with it unless it is proved to be injurious to the health or the physical well being of the community.
It was held in Kachru Lal Bhagirat Agarwal versus State of Maharashtra[3] that the proceedings under Section 133 of the Code of Criminal Procedure are not intended to settle private disputes between different members of the public. They are intended to protect the public as a whole against any sort of inconvenience caused by such nuisance.
Judicial Review
In practicality the efficacy of recourse for public nuisance is very limited despite the number of provisions that criminalize it. It has been observed that as compared to the Indian Penal Code 1860, the Criminal Procedure Code provides a better option in preventing environmental damage where it amounts to public nuisance. The Executive Magistrate has been given vast powers under Section 133 of the CrPC.
The Magistrate has wide powers under this section to either remove the nuisance or pass orders requiring public bodies to perform their mandate. The meaning and usefulness of the remedy under Section 133 and Section 144 have been improvised for the benefits of people to avoid environmental damage.
It has been held in Ajeet Mehta versus State of Rajasthan[4] that stocking of fodder on a certain plot in the residential colony constitutes pollution of the atmosphere of the society leading to public nuisance. The order directing the removal of such nuisance was held as valid and the respondents were directed not to conduct any business or store any form of fodder on the plot.
Conclusion
The public peace and maintaining order is one of the core principles of governing a country. It also comes under the purview of the right to live under Article 21 of the Constitution of India but has been expanded to include the life and health of the people which heavily depends on an unpolluted environment.
Further, it has been made clear in several cases that the provision of Section 133 of the CrP.C to provide a remedy for public nuisance.
Recently, in the Covid 19 pandemic even a public gathering or not following the pandemic rules can come under the purview of the public nuisance. Although these acts would not cause any harm to the public under normal circumstances but due to fact that these acts cause harm to the public in a pandemic situation they may constitute as public nuisance.
- Velan Pakkiri versus Subbayan (19) 6 AIR 1919 Mad. 674 ↑
- Vasant Manga Nikumba versus Baburao Bhikanna Naidu 1955 Supp (4) SCC 54 ↑
- Kachru Lal Bhagirat Agarwal versus State of Maharashtra 2005 SCC(Cri.) ↑
- Ajeet Mehta versus State of Rajasthan 1990 Cri LJ 1956 ↑