An act of a person or the enjoyment of a property is legitimate only as long as it does not affect the general public in any way. Affecting here means pollution, harm, discomfort or frightening the public. Public here refers to a community or a group of people. When only one individual is affected, it becomes private nuisance. However, while causing public nuisance one individual may,in particular, incur more damage than the others.
How is public nuisance treated in India:
Public nuisance can be both a tort and a criminal offence. It refers to any act or omission that harms or endangers the collective health, enjoyment or safety of the public as under section 268 of the Indian Penal Code which is punishable with a maximum fine of rupees 200.There can also be a civil remedy through a suit filed under section 91 of Civil Procedure Code, which does not stop the complainant from seeking remedy under criminal jurisdiction or damages under tort.
Action against public nuisance:
Section 133 of the Criminal Procedure Code empowers a District magistrate or a Sub-Divisional Magistrate or an Executive Magistrate of the first class, on receiving a police report or other information and on taking such evidence (if any) as he thinks fit,
1. To remove any unlawful obstruction which causes or holds the potential to disturb the normal routine of the public
2. To prevent, regulate or stop any trade or occupation or the safekeeping of certain goods which might injure the health or public’s comfort
3. Prevent or stop the construction of a building or the disposal of certain substances which might affect the public
4. Remove or repair any tree, tent, building, structure, etc. which is in such a condition that its very presence causes injury to those living nearby or passing through the premises.
5. Fence the tank, well or an excavation in a public area which may cause serious disturbance to the public
6. Dispose, confine or destroy any dangerous animal which may cause trouble to a certain portion or the public at large.
The action of a Magistrate is expected when there is a need for urgent action. This process may be initiated by any person or group of persons who feel aggrieved by the nuisance. They can make a complaint with the police which as a report will be brought before the magistrate and the action thus initiated.
When there is a nuisance that is undoubtedly affecting the public’s peace or health as mentioned earlier, a suit may be filed,
a. By the Advocate-General, or
b. With the leave of the court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful
The special features of this section are that,
- Special damages need not be proved.
- This action does not limit the aggrieved from filing a case under any other provisions.
Private individuals can bring an action for public nuisance provided that it must be proved that they have been incurring more harm or damage in particular.[i] Public interest litigations under article 32 of the Indian constitution can also be filed as some nuisance amount to the infringement of Article 21.[ii]
- The magistrate may grant an injunction to the one causing nuisance. When the injunction is not complied with, he is punished with imprisonment upto 2 years or fine or with both under Section 291 of The Indian Penal Code.
- For private action against public nuisance, the court may give directions to compensate for the damages incurred by him.
Defenses available against public nuisance:
Public nuisance is said to be committed when a public right has been affected. However, there are circumstances where certain properties cannot be enjoyed without causing nuisance to others. It is recognized by the courts and here are some defences available.
- When the source of nuisance, a property in particular, comes under the ambit of section 15 of the Easements Act, it can be a defense. It involves the property of a person who has acquired the title of it, which has been used by his ancestors and now him for a period prescribed under the Limitation Act. In India, if the property has been enjoyed for twenty years as an easement, in the way which is considered a nuisance, no action can be brought against it. The nuisance in itself becomes legalized.[iii]
- The main defense against public nuisance is called “coming to the nuisance”. When the nuisance was already present in an area where the plaintiff later acquired interest, it acts as a defence. The judge carefully analyses the merits of the case and should see to it that the plaintiff did not land himself in a place which was already running such errands. In short, public rights cannot be expected in a place where it is practically not possible to be protected.[iv] It is used to determine whether there is a liability or not on the defendant.[v]
- Similarly, when the court is positive that the plaintiff had an “assumption of risk” and consciously chose to incur the risk of enduring the nuisance, the court does not hold the defendant liable.
Nuisance cases are dealt with mainly based on the facts and jurisdiction. It is unimaginably difficult to list out the activities that can be brought under the ambit of nuisance. In order to not commit public nuisance, a person must keep in mind not to disturb the public in anyway. Some activities that are clearly considered as public nuisance are unnecessary use of loud speakers in public, emission of harmful gases or chemicals in public places, soliciting customers by sexworkers etc. it is advised to exercise due caution before indulging in any kinds of activities that attracts public attention.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] Ushaben v. BhagyalaxmiChitraMandir [AIR 1978 Guj 13]
[ii] Sayeed Maqsood Ali V. State of M.P. [AIR 2001 M.P. 220]
[iii] Elliotson v Feetham and another  EngR 798; (1835) 2 Bing NC 134; (1835) 132 ER 53
[iv] Boomer v. Atl. Cement Co. – 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (1970)
[v] Foster v. Preston Mill Co. – 44 Wash. 2d 440, 268 P.2d 645 (1954)