Civil Suits On Public Nuisance And Other Wrongful Acts Affecting Public

Introduction

Whether it is the noise of the loudspeakers or the dug up roads, the occurrences of public nuisance are numerous. Unnecessary and incessant honking of horns to blocking the sun in a public park, the concept of nuisance is spanned in a vast sphere of our lives. While earlier, nuisance claims were generally instituted by individuals for damages, public nuisance claims through class litigation and public interest litigations are a relatively new addition in the Indian context. It has to be realized that Environment protection is not a pre-occupation of the educated and the affluent and the disposal and control of toxic waste and governmental regulation of polluting industries is public interest oriented. It is nothing but immense insensitivity of the Indian society that the biggest issue of public nuisance, environment-deterioration, goes unnoticed by most of the people, save a few public spirited people, who take up this responsibility of preserving the environment upon themselves. Public interest litigations (hereinafter PILs) have emerged as an instrument to set the wheels into action and work towards a sustainable environment.

The present paper proceeds in two parts. Part I deals with the concept of public nuisance for the purpose of section 91 of the Code of Civil Procedure 1908. It discusses at length the procedural of a claim for public nuisance as enlisted in section 91, supported with case laws. Further, it discusses various legal remedies available in a nuisance claim. Part II aims to illuminate the concept of public nuisance with special focus on the spate of litigation directed towards the preservation of environment through the instrument of PILs( public interest litigation).

1.  

The Concept Of Nuisance In Indian Jurisprudence.

Like major other fields in civil jurisprudence, India borrowed the concept of nuisance from Common Law. Before the conceptualization of the Code of Civil Procedure in 1908, the liabilities incurred in the offence of nuisance emanated from the common law interpretation of ‘civil wrongs’ that imposed a tortious liability on the wrong-doer. This tortious liability was a capable ground for claiming damages for the injury caused due to the prevalence of the cause of nuisance for a considerable span of time. Therefore, the concept of nuisance is not statutorily developed in the Indian civil jurisprudence. However, through a spate of adjudication on the same, as well as elaborated criminal interpretation of nuisance as well as its application in tort law has given it a definite dimension.

There is no universally accepted definition on nuisance. In fact the term ‘nuisance’ is incapable of an exact definition. But its concept is well understood. There must be interference with the use or enjoyment of land, or some right over or in connection with it, causing damage to the plaintiff. Halsbury defines it as an injury to the right of a person in possession of property to undisturbed enjoyment of it and results from an improper use by another of his own property. According to Blackstone, it is something that “worketh hurt, inconvenience or damage”.The act must result into both danger and injury to cause an actionable nuisance. Acts which seriously interfere with the health, safety, comfort or convenience of the public generally or which tend to degrade public morals have always been considered public nuisances and wrongful acts affecting public. Speaking generally, such acts arise from callous disregard of other people’s welfare and interest.

Nuisance can be broadly classified into two categories: private nuisance and public nuisance.

Private nuisance: Nuisance in its conventional sense refers to the offence of private nuisance emanating from the customary right to enjoyment of one’s own property without interruption to the extent that the rights of another do not stand to be abridged in the course. Reasonableness plays a crucial role in deciding whether an act constitutes actionable nuisance or not. Since private nuisance is categorically the nuisance caused to individual and not the public at large, it cannot be made the subject of an indictment. However, it can constitute a sufficient cause of action of a civil suit claiming damages and injunction.

Public nuisance: Public nuisance has not categorically been defined in the Code of Civil Procedure, 1908. However, for the purpose of adjudication of the cause, the definition has been borrowed from section 268 of the Indian Penal Code, 1860. According to section 268, 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 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.

The distinction between private and public nuisance is a matter of fact and not law and can collapse in situations where the right being violated is a public right but the injury is caused to an individual and not the public at large. In many cases it essentially is a question of degree. An example of such a situation is obstruction of a highway affecting houses adjacent to it. In such cases, even though the number of people being affected is not large, the right being violated is public in nature. Unlike private nuisance, public nuisance does not consider easement rights as acceptable defence for nuisance. Merely the fact that the cause of nuisance has been in existence for a long time does not bar any challenge against it as no length of time can legalize a public nuisance.

2.  

Public Nuisance in CPC

Public nuisance derives support from section 91 of CPC that lays down the procedure for initiation of a civil suit for the offense of public nuisance. Being purely procedural, the section gives the flexibility of seeking parallel remedies in criminal jurisdiction or damages under law of torts. The marginal note of section 91 reads: public nuisance and other wrongful acts affecting the public. Inclusion of ‘other wrongful acts affecting public’ besides public nuisance widens the scope of the section to incorporate various situations which although do not fall under the accepted straitjacket definitions of nuisance, yet are a cause of discomfort and inconvenience to the public. For instance, courts have read slaughtering of cattle on a public street or encroachment upon a public street by construction of buildings as legitimate cause of action for a claim for public nuisance by the virtue of it being a wrongful act against public.

Section 91 of CPC states that

(1) In the case of a public nuisance the Advocate General or two or more persons having obtained the consent in writing of the Advocate General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

As per the General Clauses Act 1897, the definition of nuisance for the purpose of section 91, CPC has to be borrowed from section 268 IPC. The definition of nuisance excludes from its ambit the instances of legalized nuisance. Legalized nuisance are cases when the nuisance cause is statutorily approved and in the interest of greater good and social welfare. For instance, the running of railway engines and trains or establishment of the yard, despite being a legitimate cause of nuisance, is not punishable under IPC or a valid ground for invoking Section 91.

Though much hasn’t been said about the inclusion of clause 1 in section 91, it is believed that inclusion of the Advocate General as the initiator of the suit for public nuisance was to act as a safety check arrangement to the expansive and broad definition of nuisance and the subjectivity of ‘wrongful acts against the public’. Later, by the 1976 amendment, the provision of two or more persons filing a suit for public nuisance with the consent of the advocate general was added to section 91. Such active involvement of the Advocate General in public nuisance suits was to ensure that suits are not initiated with malicious intentions, with the sole purpose of creating impediments for the party alleged with causing nuisance. This rule however does not extend to representative cases when a member of the community whose rights are being restricted by the act of public nuisance files the claim. In such suits, the leave of the court is not necessary. Even in cases when certain rights are provided to the entire community, but immediate damage by the nuisance occurs to an individual, leave of court is not mandatory.

Clause 2 of Section 91 permits the existence of a parallel suit for the same cause of action in criminal jurisdiction through a PIL or as a civil suit for private claims. It also allows an individual aggravated by the nuisance to file for damages his individual suit. This is primarily so because section 91 in its entirety does not create any rights or deprive anyone of their existing rights. It merely states the procedural guidelines for instituting a civil suit when the cause of action is public nuisance. Consequently, it does not control representative suits under order I, rule 8 or modify the right of a person to sue apart from the provision of this section. This means that if a group initiates a suit for declaration of a particular right, it does not fall under the category of suit for public nuisance and hence mandates the prior approval of the advocate general. However, the existence of such right is a necessary prerequisite. For instance, a suit against a religious procession is maintainable under Section 91 only if the infringement of some right and even if the consequent damage caused is not proved. Similarly, member of the public can maintain a suit for removal of obstruction of a public highway, if his right of passage through it is obstructed, without proof of special damage.

3.  

Remedies In Cases Of Public Nuisance

As mentioned above, section 91, clause 2 permits the concomitant existence of individual as well as suits under other laws for relief for public nuisance. Since public nuisance is an offence both in civil and criminal jurisprudence, the reliefs range from punitive to pecuniary (generally in case of private claims). In public nuisance cases, the most common relief is the injunction order for continuing the act causing nuisance or an order for removal of the cause by the magistrate. Therefore, the remedies for public nuisance are:

1.  

1. Criminal Prosecution under such section of chapter XIV of the Indian Penal Code as may be applicable to the case.

Sections 269 to section 291 enlist provisions for punitory remedies with imprisonment, fine or both. For attracting provisions of chapter XIV, it is not necessary that the annoyance should injuriously affect every single member of the public within the range of operation, it is sufficient that nuisance disturbs the people living in the vicinity.

2.  

2. Removal of nuisance or stopping the nuisance-causing activity by the orders of the magistrate under section 143 and 133, CrPC.

Section 133 of CrPC allows the magistrate to order removal of the nuisance causing agent or activity from the locality provided that he is satisfied that the nuisance affects or injures number of people enough to attribute ‘public nature’ to the right being violated, the dispute is not of private nature, between two members or groups of public or the dispute is a case of emergency or imminent danger to public interest as in cases of pollution by industries.

3.  

3. Action under this section by the Advocate General, or two or more persons with the leave of the Court where a declaration or injunction or some other appropriate relief is desired to put an end to a public nuisance.

This is when the remedy is sought under section 91 of the CPC where a suit is filed either by the advocate general himself or by two or more people in representative capacity with the prior consent of the advocate general or the leave of the court. The reliefs available to the parties in such cases are temporary or intermittent injunction if the injury complained of is either irreparable or continuous .Even if no substantial damage is caused by the act, injunction can be granted if the nature of nuisance-causing act is such that it can obstruct public rights in future. Declaration of can also be sought as a remedy.

4.  

4. Action by a private individual, where he has sustained some extraordinary damage by it.

As mentioned in part I( A), the distinction between private and public nuisance collapses in cases where an individual is caused damage by the act of nuisance which prima facie violates a public right. In such a case, invoking clause 2 of section 91, an individual can file a claim for damages or injunctions for violation for some right without prior consent of the Advocate General or the leave of the Court if there is sufficient proof of violation of his some of his or her existing rights. As per the amended provision, no such sanction is required and independent locus is conferred on every person aggrieved by public nuisance or wrongful act to file a suit for declaration or injunction. For instance, if the petitioner’s land that is used by everyone in the village( public right) as a passage is dug for making a channel by the authorities, a sufficient cause of action for initiating a suit under clause 2 of article 91 is created. Apart from this section no individual can maintain an action against another for a relief against public nuisance except on proof of special damage.

Besides civil suits and criminal cases, another way of realizing these remedies is through the instrument of public interest litigations or PILs. In the last two and a half decades, PILs have emerged as a striking balance of citizen-consciousness and judicial activism to work for the welfare of all. The next section of this paper aims to trace the history of PILs in India and their use to check public nuisance detrimental to the environment.

Public Interest Litigation And Public Nuisance

With the break-neck speed of development and mechanisation of human life, the instances of public nuisance have increased considerably. Often, such nuisances, besides causing inconvenience to public, also act to the detriment of the environment. Public Interest Litigations recently, have assumed the importance of being the primary tool for bringing to the notice of judiciary, causes of action against public nuisance damaging the environment.

Public interest litigations have largely been benefitting to the weaker sections of the society who were deterred by practical impediments in approaching the courts. They have also significantly aided the protection and preservation of environment to encourage sustainability. However, the concept of PILs has lately been subjected to it being a tool for harassing private parties in the name of environment, for the mere want of monetary compensation. As this paper focuses on the use of PILs as a tool for challenging public nuisance and other wrongs against public, the discussions over pros and cons of PILs are defined out of the scope of this paper. Also, the focus being only on public nuisance and environment degradation, other common spheres of action of PILs have been excluded.

Public interest litigation or social interest litigation is principally a litigation in which a person, even though not aggrieved personally, brings an action on behalf of the downtrodden masses for the redressal of their grievances. It may be defined as a litigation undertaken for the purpose of redressing public injury, enforcing public duty and claiming public rights. In India, the trajectory of PILs has been traced in the sphere of constitutional and not civil litigation. This however, does not exclude the possibility of it being filed as a civil suit either in the capacity of a class action under order 1, rule 8 or a public nuisance suit under section 91 of the CPC.

The Indian jurisprudence saw a faint glimpse of the concept of pro bono litigation in a judgment delivered by Justice Krishna Aiyer in Mumbai Kamgar Sabha v Abdulbhai which was a case regarding some dispute in payment of bonus. Quoting Justice Aiyer,

“Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualization of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjective law.

The concept of PILs was spelt out with conviction and clarity in the S.P.Gupta v Union Of India where the Court clarified that it was the court’s responsibility to ensure that the instrument of public interest litigation was not being used to garb private profit or political motivation or other oblique considerations other than those in furtherance of justice and public welfare. However, it was the Ratlam Municipality case that broke new ground for using litigation in public interest for removal of nuisance (caused by dismal state of the drains in the locality in the case).

PILs with backing of judicial activism became an important means of realizing what was envisaged in Article 48A of the Constitution. There has been an array of public interest litigations raising environmental issues including on water and air pollution, river pollution and management, noise pollution, management and regulation of hazardous waste, regulation of mining and conservation of forest and wildlife resources. The Court( High Court in case of an Article 226 writ and Supreme Court in case of an Article 32 writ), acting as a sentinel to people’s fundamental right to a clean environment, has to maintain the delicate balance between encouraging development of the nation and ensuring sustainability of the environment. The Supreme Court through various pronouncements in environment PILs has acknowledged the fact that no development is possible without some adverse effect on the ecology and the environment. Despite that, the theme underlying the judgments is that of sustainable development which as defined in the 1987 report of the World Commission on Environment and Development( Brundtland Report) is , “ development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.”

Thus the Supreme Court has not been hesitant in prohibiting nuisance causing acts like blowing loud air horns, bursting firecrackers after 10 P.M. at night which obstructed right to sleep at night and to leisure or even noise cause by religious activities , and other acts of public nuisance obstructing public welfare and greater good.

Conclusion

Despite availability of remedies in civil, criminal as well as constitutional jurisdiction, public nuisance, garbed behind the need for development, has become a vice which our society has failed to combat successfully. Despite the spate of laws on the subject of environment, we find ourselves in a situation where we are standing at the brink of precipice of sustainability in our environment. More than new laws, what is required is the effective implementation of the existing ones. The State should take up the responsibility to ensure that industries and other development activities with potential to cause irreparable damage to environment or obstruct an important public right by being a cause of nuisance, are kept in statutory check.

Bibliography

Primary Sources:

Code of Civil Procedure, 1908.

Code of Criminal Pricedure, 1973.

Constitution of India, 1950.

Indian Penal Code, 1870.

General Clauses Act, 1897.

Secondary Sources:

Books:

Halsbury’s Laws Of India , Vol 29(1) ,Butterworths , Delhi, 2001.

M.P.Jain, Code of Civil Procedure, 2nd Ed, Wadhwa Publications, Nagpur,2007.

Mulla, The Code of Civil Procedure, 17th Ed.(S.K.Sarvaria), Vol I, Lexis Nexis Butterworths, New Delhi, 2007.

P.Leelakrishnan,Environment Law in India, 3rd Ed., Lexis Nexis Butterworths, Nagpur, 2008.

P.M.Bakshi, Public Interest Litigations, Ashoka Law House, New Delhi, 2002.

Rajesh Tendon, The Code Of Civil Procedure 26th Ed, Asian Offset Press, Faridabad ,2005.

Ratanlal, Dheerajlal, The Indian Penal Code, 28th Ed., Wadhwa Publications, Nagpur, 2003.

Rattanlal And Dheerajlal , Law Of Torts, 23rd Ed., Wadhwa Publications,New Delhi, 1999.

S.K.Sarkar, Public interest Litigations and Public Nuisances, 2nd Ed., Orient Publishing Company, New Delhi, 2006.

Sarkar, Code of Criminal Procedure, 9th Ed., Wadhwa Publications, Nagpur, 2007.

Sonia Hurra, Public Interest Litigation- In Quest Of Justice, Mishra & Co, Ahemdabad,1993.

Videh Upadhaya, Public Interest Litigation in India: Concept, cases, concerns, Lexis Nexis Butterworths, Nagpur, 2007.

Woodroffe and Amen Ali’s commentary on the Code of Civil Procedure, 1908, 4th Ed., Delhi law house, New Delhi,2006.

Articles:

V. Krishnamoorthy, Loudspeaker menace,The Hindu( Madurai, July 10, 2007), available online at http://www.hindu.com/2007/07/10/stories/2007071059570300.htm( Last visited on March 22, 2010).

Cases:

Attorney General v Sheffield Gas Consumers Co (1868) LR 4 Ch 71.

Bhanwar Lal vs. Dhonraj ,AIR 1973 Raj 212.

Burrabazar Fireworks Dealers Association v Commissioner of Police, Calcutta( 1997) 2 Cal LJ 468.

Chaudhary v maharaja, AIR 1940 Pat 449.

Chavali Ranga Reddy vs Chavali Sesha Reddy 2007 (5) ALD 552( Andhra high court)

Chettriya Pradushan Mukti Sangharsh Samiti v State Of Uttar Pradesh, AIR 1990 SC 2060.

Church of God in Ondia v KKR Majestic Colony Welfare Association, AIR 2000 SC 2773.

Intellectuals Forum,Tirupati v State of Andhra Pradesh, (2006) 2 SCALE 494.

Kirori Mal v State AIR 1958 Punj 11.

M.C.Mehta v Union of India(Taj Trapezium Case)I, (1997) 2 SCC 653.

Manbhum District Court v B.N.Rly Co., AIR 1945 Pat 200.

Mandakinee v. Basantakumaree, AIR 1933 Cal 884.

Mumbai Kamgar Sabha v Abdulbhai , (1976) 3 SCC 832.

Munusami v. Kuppusami, AIR 1939 Mad 691.

Muncipal Council, Ratlam v Vardichan, AIR 1980 SC 622 1628.

Neti Gopalakrishna v. Narasimham, AIR 1958 Andh Pra 586.

Queen-Empress v Zakhiruddin , ILR 10 All 41.

Queen Empress v Virappa Chett, ILR 20 Mad 433.

Rabin Mukherjee v State of West Bengal, AIR 1985 Cal 222.

Ramu v Murli, AIR 1943 All 19.

Society For Preservation Of Environment And Quality Of Life v Industries Dept, AP AIR 1982 SC 149.

S.P.Gupta v Union Of India AIR 1982 SC 149.

S.Venkatramaiah v State, 1989 CrLJ 789 Kar.

State of MP v Kedia Leather and Loquor Ltd, 2003 CrLJ 4335(SC).

V.V.Balakrishna Nambiar v R.Madhavan Nambiar, 1986 CrLJ 109.