Public Nuisance and the Conditional Order

The order requires the person responsible, within a time fixed in it, to do the corresponding thing, listed in clauses (i) to (vi), or, if he objects, to appear before the Magistrate or a subordinate Executive Magistrate at a time and place fixed and show cause why the order should not be made absolute.

Sub-section (2), the ouster. No order duly made under this section shall be called in question in any Civil Court.

The Explanation. A "public place" includes property belonging to the State, camping grounds, and grounds left unoccupied for sanitary or recreative purposes.

Sections 153 to 155: service, the choice, and the penalty

Section 153, service. The order shall, if practicable, be served on the person in the manner provided for service of summons. If it cannot be so served, it is notified by proclamation published as the State Government's rules direct, and a copy stuck up at the places fittest for conveying the information to him.

Section 154, the choice. The person against whom the order is made shall either:

(a) perform the act within the time and in the manner specified; or (b) appear in accordance with the order and show cause against it.

And the section adds, in words the old Code did not have, that such appearance or hearing may be permitted through audio-video conferencing.

Section 155, the penalty. If he neither performs the act nor appears and shows cause, he is liable to the penalty specified in section 223 of the Bharatiya Nyaya Sanhita, 2023, and the order shall be made absolute.

Section 155 is the old section 136 under a new name. Its marginal note now points at section 154 instead of describing the consequence, but the substance is the same.

Sections 156 and 157: the two inquiries

Section 156, where a public right is denied. Where the order was made to prevent obstruction, nuisance or danger to the public in the use of a way, river, channel or place, the Magistrate shall, on the person's appearance, question him whether he denies the existence of any public right in it. If he does, the Magistrate shall inquire into that matter before proceeding under section 157.

Sub-section (2). If the Magistrate finds any reliable evidence in support of the denial, he shall stay the proceedings until the existence of the right has been decided by a competent Court. If he finds no such evidence, he proceeds under section 157.

Sub-section (3), the estoppel. A person who, on being questioned, failed to deny the public right, or who denied it but failed to adduce reliable evidence, shall not in the subsequent proceedings be permitted to make such a denial.

Section 156 is the point at which the executive magistracy stops and the civil court begins. The Magistrate does not decide whether the public has a right of way; he decides whether there is reliable evidence that it does not, and if there is, he steps aside.

Section 157, where cause is shown. If the person appears and shows cause, the Magistrate shall take evidence in the matter as in a summons-case.

Sub-section (2). If satisfied that the order, as originally made or with such modification as he considers necessary, is reasonable and proper, the order shall be made absolute with or without modification.

Sub-section (3). If he is not so satisfied, no further proceedings shall be taken.

The proviso, and it is new. Proceedings under section 157 shall be completed as soon as possible within ninety days, extendable for reasons to be recorded in writing to one hundred and twenty days.

Sections 158 and 159: help for the inquiry

Section 158. For an inquiry under section 156 or 157 the Magistrate may direct a local investigation by such person as he thinks fit, or summon and examine an expert.

Section 159. Where he directs a local investigation, he may furnish written instructions for the guidance of the person appointed, and may declare by whom the expenses are to be paid. The report of that person is admissible in evidence.

Sections 160 to 162: enforcement and prohibition

Section 160(1), notice after the order is absolute. When an order has been made absolute under section 155 or section 157, the Magistrate shall give notice to the person, require him to perform the act within a time fixed in the notice, and inform him that on disobedience he will be liable to the penalty provided by section 223 of the Bharatiya Nyaya Sanhita.

Sub-section (2), doing it for him. If the act is not performed in time, the Magistrate may cause it to be performed, and recover the costs either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of that person, within or outside his local jurisdiction. Property outside is attached and sold on the order being endorsed by the Magistrate of the place where it is found.

Sub-section (3). No suit shall lie in respect of anything done in good faith under the section.

Section 161, injunction pending inquiry. If a Magistrate making a section 152 order considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue an injunction to obviate or prevent it pending the determination. On default in forthwith obeying, he may himself use, or cause to be used, such means as he thinks fit. No suit lies for anything done in good faith under this section.

Section 162, prohibiting repetition. A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate or Deputy Commissioner of Police empowered by the State Government or the District Magistrate, may order any person not to repeat or continue a public nuisance as defined in the Bharatiya Nyaya Sanhita or any special or local law.

Section 162 is short and is the one most often used, because it forbids a repetition rather than requiring a positive act.

A worked example

A Sub-divisional Magistrate at Vasai receives a police report that a three storey structure on a busy lane is leaning and its balcony is cracked.

The order. Clause (d) of section 152(1) applies: a building likely to fall and cause injury to persons passing by. He makes a conditional order requiring the owner, within a fixed time, to remove, repair or support it, or to appear on a fixed date and show cause why the order should not be made absolute.

Service. Served like a summons under section 153(1). If he cannot be found, the order is notified by proclamation and a copy stuck up at the fittest places, section 153(2).

He does nothing and does not appear. Section 155: he is liable to the penalty under section 223 of the Bharatiya Nyaya Sanhita, and the order is made absolute.

Instead he appears and says the lane is his private property, not a public way. Because the order was to prevent danger to the public in the use of a way, section 156 applies. The Magistrate questions him, and if there is reliable evidence for the denial, he stays the proceedings until a competent Court decides the right. If there is none, he goes on under section 157. If the owner never raised the denial, section 156(3) stops him raising it later.

He appears and says the building is sound. Section 157(1): evidence is taken as in a summons case. The Magistrate may direct a local investigation or summon an engineer as an expert, section 158, furnish written instructions and decide who pays the expenses, section 159. The proceedings must finish within ninety days, extendable to one hundred and twenty for recorded reasons.

Meanwhile the balcony may come down this week. The Magistrate may issue an injunction under section 161 to prevent imminent danger, and if it is not obeyed forthwith he may himself use such means as he thinks fit. No suit lies for what he does in good faith.

The order is made absolute and the owner still does nothing. The Magistrate gives notice under section 160(1), then may have the repair done and recover the cost by selling material removed or by distress and sale of the owner's movable property, section 160(2).

Distinctions

What this does NOT mean

A conditional order is not a finding that the person has done wrong. It is an order to act or to answer.

Section 152(2) does not oust the High Court. It says no order duly made shall be called in question in any Civil Court, which leaves the constitutional jurisdiction untouched.

Section 156 does not let the Magistrate decide a public right. It lets him decide whether there is reliable evidence denying it, and if there is, he must stay his hand until a competent Court decides.

And section 160(2) is not a punishment. It is recovery of the cost of doing what the person was ordered to do.

Quick revision

• Section 152: conditional order by a District, Sub-divisional or specially empowered Executive Magistrate, in six situations: obstruction or nuisance in a public place or way; a trade, occupation or goods injurious to health or physical comfort; construction or disposal likely to cause conflagration or explosion; a building, tent, structure or tree likely to fall; an unfenced tank, well or excavation; a dangerous animal. No Civil Court may question a duly made order. "Public place" includes State property, camping grounds and grounds left unoccupied for sanitary or recreative purposes.
• Section 153: served as a summons; failing that, by proclamation and by sticking up a copy.
• Section 154: perform the act, or appear and show cause, and appearance or hearing may be by audio-video conferencing.
• Section 155: neither performing nor appearing means the penalty under BNS section 223 and the order is made absolute.
• Section 156: on a denial of a public right, inquire; stay if there is reliable evidence for the denial; a person who did not deny, or denied without reliable evidence, is estopped later.
• Section 157: evidence as in a summons case; absolute if reasonable and proper, with or without modification; otherwise no further proceedings; ninety days, extendable to one hundred and twenty for recorded reasons.
• Sections 158 and 159: local investigation and expert evidence; written instructions, expenses, and the report is admissible.
• Section 160: notice, then the Magistrate may do the act and recover the cost by sale of removed property or by distress and sale of other movables, inside or outside his jurisdiction; no suit for good faith acts.
• Section 161: injunction against imminent danger pending determination; the Magistrate may act himself on default; no suit for good faith acts.
• Section 162: an order not to repeat or continue a public nuisance, by a District or Sub-divisional Magistrate, or an empowered Executive Magistrate or Deputy Commissioner of Police.

Test yourself

1. Name any four of the six situations in section 152(1). Unlawful obstruction or nuisance in a public place or in a way, river or channel used by the public; a trade, occupation or the keeping of goods injurious to the health or physical comfort of the community; construction of a building or disposal of a substance likely to occasion conflagration or explosion; a building, tent, structure or tree likely to fall and injure; an unfenced tank, well or excavation adjacent to a way or public place; and a dangerous animal.

2. What are the two things a person served with a conditional order may do? Perform the act within the time and manner specified, or appear and show cause against the order, section 154; and the appearance or hearing may be through audio-video conferencing.

3. What happens if he does neither? He is liable to the penalty specified in section 223 of the Bharatiya Nyaya Sanhita and the order is made absolute, section 155.

4. A person denies that the public has any right of way over the land. What must the Magistrate do? Inquire into the denial before proceeding under section 157. If there is reliable evidence supporting it, he must stay the proceedings until a competent Court decides the existence of the right; if there is none, he proceeds, section 156.

5. Within what time must proceedings under section 157 be completed? As soon as possible within ninety days, extendable for reasons recorded in writing to one hundred and twenty days.

6. How does a Magistrate recover the cost of doing the act himself? By the sale of any building, goods or other property removed by his order, or by distress and sale of any other movable property of that person, within or outside his local jurisdiction, section 160(2).

7. Who may order a person not to repeat a public nuisance? A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate or Deputy Commissioner of Police empowered by the State Government or the District Magistrate, section 162.