Public Nuisance

In one line

A public nuisance harms the public at large, so the State prosecutes it, and a private person may sue only if he proves damage peculiar to himself.

In the wording a student can write in an exam: a public nuisance is an act or 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 necessarily causes injury, obstruction, danger or annoyance to persons who may have occasion to use any public right; it is an offence and not ordinarily a tort, and a private individual may sue in tort only if he proves special damage, that is, damage particular to himself and different in kind from that suffered by the public generally.

The statutory definition

Section 270 of the Bharatiya Nyaya Sanhita 2023 provides that 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.

Two features of that definition matter. The harm must be common, that is, suffered by the public or by a section of it, and a nuisance is not excused merely because it causes some convenience or advantage.

The three routes against a public nuisance

1. Prosecution. The State prosecutes under section 270 of the Bharatiya Nyaya Sanhita 2023. This is the primary remedy, because the wrong is a wrong to everybody.

2. A Magistrate's conditional order. Section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023 allows a Magistrate, on receiving a police report or other information, to make a conditional order requiring a person to remove an unlawful obstruction or nuisance from a public place, to stop a trade or occupation injurious to the health or physical comfort of the community, to stop the construction of a building or dispose of a substance likely to cause a conflagration or explosion, to fence a tank, well or excavation, or to destroy, confine or dispose of a dangerous animal, within a fixed time, or else to appear and show cause. Sections 153 to 156 provide for service of the order, for the person to comply or show cause, for a penalty for failure, and for the procedure that follows.

This is the fastest remedy in practice, and it is the one an ordinary citizen actually uses.

3. A civil suit. Section 91 of the Code of Civil Procedure 1908 provides that in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or such other relief as may be appropriate may be instituted by the Advocate-General, or, with the leave of the court, by two or more persons, even though no special damage has been caused to them. Sub-section (2) preserves any right of suit which exists independently of the section.