Private and Public Nuisance

Where the principle is written down

Section 91 of the Code of Civil Procedure 1908. 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 for 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 such persons by reason of the public nuisance. Sub-section (2) preserves any right of suit that exists independently of the section.

Read what section 91 does. It removes, for a public nuisance, the requirement that a plaintiff show damage special to himself, and in exchange it requires either the Advocate-General or leave of the court. That is the whole difference between the two kinds, expressed as a rule of procedure. A private nuisance is sued on by the occupier because it is his enjoyment that is disturbed; a public nuisance is not the property of anybody, so the Code supplies a substitute for the missing plaintiff.

Section 292 of the Bharatiya Nyaya Sanhita 2023. Whoever commits a public nuisance in any case not otherwise punishable by the Sanhita shall be punished with fine which may extend to one thousand rupees. Section 293 punishes repeating or continuing a public nuisance after an injunction by a public servant with lawful authority, with simple imprisonment up to six months, or fine up to five thousand rupees, or both. The corresponding provisions of the Penal Code were sections 290 and 291.

Section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023. A District Magistrate, Sub-divisional Magistrate or Executive Magistrate specially empowered may, on a police report or other information and after taking such evidence as he thinks fit, make a conditional order for the removal of an unlawful obstruction or nuisance from a public place or way, or for the prohibition or regulation of a trade injurious to the health or physical comfort of the community, or for the prevention of building or disposal likely to cause conflagration or explosion, or for the removal or support of a dangerous building or tree, or for the fencing of a tank, well or excavation, or for the destruction or confinement of a dangerous animal.

Three routes, and none of them for a private nuisance. A criminal prosecution, a civil suit under section 91, and a Magistrate's conditional order. A private nuisance has one route only: a suit by the person whose enjoyment is disturbed, for an injunction and damages.

The case

Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622, decided on 29 July 1980, is the standard authority on the public side and it shows the machinery working.

Facts. Residents of a locality in Ratlam complained to the Sub-Divisional Magistrate under section 133 of the Code of Criminal Procedure 1973, the predecessor of section 152 of the Sanhita, that the Municipal Council had failed to provide sanitary facilities on the roads and public conveniences for slum dwellers, who were using the road for that purpose, and had failed to stop a nearby alcohol plant discharging malodorous fluids into the public street. The Council answered that the residents had chosen to live there knowing the conditions, and that it had no money. The Magistrate found the facts proved and ordered the Council to provide the amenities and abate the nuisance within a fixed time, on pain of prosecution under section 188 of the Penal Code. The Sessions Court thought the order unjustified, the High Court upheld it, and the Council came to the Supreme Court.

Held. The order was upheld. Wherever there is a public nuisance the presence of section 133 must be felt, and the Magistrate's public power is a public duty owed to the members of the public who are the victims of the nuisance, to be exercised when the jurisdictional facts are present; his responsibility is to order removal within a time fixed in the order, disobedience being punishable. The Code operates against statutory bodies regardless of the cash in their coffers, and section 123 of the Madhya Pradesh Municipalities Act 1961 has no saving clause for a penniless municipal council. Pollutants discharged by large factories to the detriment of poorer sections are a public nuisance and a challenge to the social justice component of the rule of law.

Why it matters here. Because it shows the differentia doing its work. Nobody in Ratlam owned the street or could claim that his own enjoyment of his own land was disturbed by the smell in it. The complaint succeeded because the class affected was the public, which is what put the Magistrate's power in play; and the plea of poverty failed because a public duty is not conditional on the resources of the body that owes it.

Private nuisance, from principle

No case is cited for what follows, for the reason in the front matter, and what is stated is the settled framework rather than any court's words.

The interest protected is the use and enjoyment of land, so the person who may sue is the person with an interest in the land affected, not a visitor or a passer-by.

The interference must be substantial, judged by the standard of an ordinary person and not of a person of unusually delicate sensibility.

And it must be unreasonable, which is where the locality, the duration, the time of day, the utility of the defendant's conduct and any malice are weighed. Reasonableness is here what it is everywhere in law: a standard left open on purpose, at sequence 590, because the range of cases cannot be foreseen.

The remedies are the plaintiff's own: an injunction, damages, and in a narrow class of cases abatement by the plaintiff himself.

A worked example

A flour mill runs at night in a residential lane. Its noise keeps one adjoining householder awake; its dust settles on the whole lane; and its lorries obstruct the lane, which is a public way.

Sort the interferences by the class affected.

The noise affects one household in the enjoyment of its own land. Private nuisance. The householder sues.

The dust affects everyone living in the lane. Public nuisance, since it causes common injury or annoyance to people in general who dwell or occupy property in the vicinity, in the words of section 270. Prosecution under section 292 is available, a Magistrate's conditional order under section 152, and a suit under section 91 by the Advocate-General or by two or more persons with leave.

The obstruction affects persons who may have occasion to use a public right, which is the second limb of section 270. Public nuisance again, and the same three routes.

Now the point of the example. One mill, three interferences, two different classes affected, and the division of nuisance sorts them without a moment's doubt. The classification does not depend on how bad the interference is or on what kind it is. It depends on who is hurt, which is the fundamentum divisionis, and everything procedural follows from it.

And a caution the section itself supplies. The mill may argue that it is convenient to the neighbourhood and supplies flour cheaply. Section 270 answers that in terms: a common nuisance is not excused on the ground that it causes some convenience or advantage.

Distinctions that carry marks

What this does not mean

The two are not distinguished by the seriousness of the interference. A trivial obstruction of a highway is a public nuisance and a grave interference with one house is a private one.

They are not mutually exclusive on the facts. The same conduct may be both, and where a public nuisance causes damage special to one person, that person may sue in tort on his own account, which section 91(2) preserves.

A private nuisance is not an offence. There is no section under which it can be prosecuted, and looking for one is a standard first-year error.

Quick revision

Genus: unlawful interference with use or enjoyment. Differentia: the class affected, and therefore who may sue.

Public nuisance is defined: BNS 2023 s.270, formerly IPC s.268. Common injury, danger or annoyance to the public or to people in general in the vicinity, or necessary injury to persons using a public right. Not excused by convenience or advantage.

IPC s.270 is a different offence entirely. The definition was IPC s.268.

Three public routes: prosecution, BNS ss.292 and 293; a suit under CPC s.91, without special damage, by the Advocate-General or two or more persons with leave; a Magistrate's conditional order, BNSS s.152.

One private route: a suit by the person with an interest in the land, for injunction and damages.

Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622: the Magistrate's power is a public duty, and poverty is no answer to it.

Private nuisance requires substantial and unreasonable interference, judged by an ordinary occupier and not a delicate one.

Test yourself

1. Define public nuisance, giving the provision.

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 causing 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, and that a common nuisance is not excused on the ground that it causes some convenience or advantage. The same definition stood as section 268 of the Indian Penal Code 1860.

2. What is the fundamentum divisionis between private and public nuisance?

The class affected, and therefore who may complain. Both are interferences with use or enjoyment, and the kind of interference is the same on both sides: smoke, smell, noise, dust and obstruction appear in both. What separates them is whether the person hurt is an individual in the enjoyment of his own land or the public or a section of it, and every procedural difference follows from that one distinction.

3. Where is that principle written down?

Chiefly in section 91 of the Code of Civil Procedure 1908, which allows a suit for a public nuisance to be brought 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. It removes the requirement of individual damage, which a private nuisance action rests on, and substitutes a public officer or leave of the court in its place. Sub-section (2) preserves any independent right of suit.

4. What routes exist against a public nuisance, and against a private one?

Against a public nuisance there are three: prosecution under section 292 of the Bharatiya Nyaya Sanhita 2023, with section 293 for continuance after an injunction by a public servant; a civil suit under section 91 of the Code of Civil Procedure; and a conditional order for removal by a Magistrate under section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023. Against a private nuisance there is one: a suit by the person with an interest in the land affected, for an injunction and damages.

5. What did the Supreme Court hold in Ratlam, and why does it matter to this topic?

That the Magistrate's power to order the removal of a public nuisance is a public duty owed to the victims of it, to be exercised when the jurisdictional facts are present, and that the Code operates against statutory bodies regardless of their finances, section 123 of the Madhya Pradesh Municipalities Act 1961 having no saving clause for a penniless council. It matters because nobody in Ratlam could have complained of an interference with the enjoyment of his own land: the complaint lay because the class affected was the public, which is the differentia at work.

6. Can the same conduct be both a private and a public nuisance?

Yes. A mill whose noise disturbs one household, whose dust settles on the whole lane and whose lorries obstruct a public way commits a private nuisance as to the first and a public nuisance as to the other two. Where a public nuisance causes damage special to one individual, that individual may sue in tort on his own account, and section 91(2) of the Code of Civil Procedure expressly preserves such a right.