By Sneha Mathew, Law Student, Christ University
Winfield once said, “Nuisance may be described as unlawful interference with a person’s use or enjoyment of land or of some right over, or in connection with it.”
Nuisances are usually divided into two categories – public and private. In this article, I will be focusing on public nuisance. A public nuisance is the one which affects the public and is an annoyance to the people generally who come in contact with it. It is a type of common law offence in English criminal law in which, rather than persons, in particular, the public usually suffers the injury, loss or damage. Public nuisance encompasses a broad range of minor crime, which endangers a community’s health, morality, protection, comfort or well-being. Judicial penalties, fines or both will be levied on violators. An accused may also be required to remove an inconvenience or pay the removal costs. For instance, if a factory has contaminated a lake, a fine could be levied and cleaning costs could then be charged.
Public Nuisance as a Tort
The concept of public nuisance comes under the Law of Torts as well as Criminal Law.
The Law of Torts is uncodified and mainly followed through judgements given through previous case laws. In the case of Rose v Miles, the defendant had pushed his barge falsely over the navigable public neck. The plaintiff had been blocked from moving his barges which led the plaintiff to pay costs while unloading and moving the freight on the same property. In this case, the plaintiff was found to be causing special damages. Therefore for public nuisance under torts law, the decisions and judgements made by judges play a vital role in regulating public nuisance in the society.
Public Nuisance as an Offence
As mentioned earlier, public nuisance can come under criminal law as well. Section 268 of the Indian Penal Code defines a public nuisance as ‘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 general public or to the people in general who dwell or occupy property with 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 doer of public nuisance is (1) one who does any act or is guilty of an illegal omission (2) this omission or act causes a common injury, danger or annoyance (3) to the general public or the people in general who dwell or occupy property with in the vicinity (4) causes injury, obstruction, danger or annoyance to persons who may have any occasion to use any public right.
Public nuisance is based on the concept laid down in the maxim of civil law ‘sic utere tuo ut rem publicam non laedas’, which means ‘use your property in such a way as to not injure the rights of the general public.’
It was argued in K Ramakrishnan vs Kerala that cigarettes smoked in any kind of public space make the non-smokers passive smokers and hence cause public discomfort as specified by section 268 of the IPC. The High Court of Kerala was then advised to declare smoking tobacco not only illegal as it creates public nuisance, but also unconstitutional. The High Court held that smoking tobacco in public places in the form of cigarettes, cigars or beedis fell within the limits of the criminal laws relating to public nuisance. On the grounds of the right to life guaranteed under Article 21 of the Constitution, the High Court ruled that smoking tobacco was illegal.
Removal of Public Nuisance under CrPC
Section 133 of the criminal procedural code focuses on the conditional order for the removal of nuisance. The aim and public intention behind Section 133 of the CrPC is to avert public nuisance whereby irreparable harm will be done to the public if the magistrate failed to take prompt recourse to Section 133. Under this section, however, no action seems possible if the nuisance has been in effect for a long period of time.
Section 134 of the CrPC emphasizes on service or notification of order. It states that
- The order shall, if practicable, be served on the person against whom it’s made, with in the manner herein provided for service of a summons.
- If such order cannot be so served, it shall be notified by proclamation, published in such manner as the State Government may, by rules, direct, and a replica thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.
Section 135 of CRPC aims at persons to whom an order is addressed to obey or show cause the person against whom such order is made shall –
- Perform, within the time and in the manner specified in the order, the act directed thereby; or
- Appear in accordance with such order and show cause against the same.
Section 136 of CrPC talks about the consequences of his failing to do so. If such person does not perform such act or appear and show cause, he shall be susceptible to the penalty prescribed therein behalf in section 188 of the Indian Penal Code, (45 of 1860) and the order shall be made absolute.
As once Justice V.R. Krishna Iyer “it’s not how many laws we’ve, it’s how effectively we implement”. Therefore, depending on Section 133 of the CrPC and other similar criminal provisions under separate laws would pave the way for improved environmental governance as well as the elimination of environmental nuisance.
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