Public Nuisance
Chapter Thirty-Eight
Syllabus topic 2.4, "Torts affecting person &Property: Nuisance, Negligence, Fraud"
Pages 154 to 157 of 434
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.
Public Nuisance
The tort, and the special damage rule
A public nuisance is a tort at the suit of a private individual only where he proves special damage. That means damage which is:
Particular to him, and not merely a share of the inconvenience the public suffers; and
Different in kind, or at least substantially greater in degree, than what the public suffers; and
Direct, not remote.
The reason for the rule is practical: if every member of the public could sue for an obstruction on a highway, one obstruction would produce ten thousand suits, and the criminal law and the Magistrate's power exist precisely to deal with the public aspect of the wrong.
Examples of special damage recognised in the cases: a shopkeeper whose customers cannot reach his shop because of a long obstruction of the road; a person whose vehicle is damaged by an unlighted heap left on the highway; a person who suffers illness from a polluted water supply.
Not special damage: having to walk further, being delayed, or sharing the general discomfort.
A worked example
A builder dumps sand across a public lane in Nagpur for three months.
The public. Every user of the lane is inconvenienced. That is the common injury which makes it a public nuisance under section 270 of the Bharatiya Nyaya Sanhita 2023.
A resident who is delayed each morning has no civil action: his harm is the same in kind as everybody else's.
A shopkeeper on that lane, whose customers cannot reach him and whose takings fall, has special damage: it is particular to him and different in kind, so he may sue in tort for damages and for an injunction.
A cyclist who rides into the heap at night and is injured has special damage too, and may also sue in negligence.
Any two residents, with the leave of the court, may sue under section 91 of the Code of Civil Procedure 1908 for a declaration and an injunction, without proving special damage at all.
And the quickest route is a complaint to the Magistrate, who may pass a conditional order under section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023 requiring the sand to be removed within a fixed time.
Public Nuisance
Distinctions that carry marks
| Public nuisance | Private nuisance | |
|---|---|---|
| Who is harmed | The public or a section of it | A particular occupier |
| Primary character | An offence | A tort |
| Who may sue in tort | Only a person with special damage | The occupier |
| Statutory suit | Section 91 of the Code of Civil Procedure 1908, two or more persons with leave, no special damage needed | Not applicable |
| Criminal provision | Section 270 of the Bharatiya Nyaya Sanhita 2023 | None as such |
What it does NOT mean
It does not mean nobody can sue. A person with special damage may sue in tort, and two or more persons may sue under section 91 of the Code of Civil Procedure 1908 with leave.
It does not mean inconvenience is enough. Special damage must be particular to the plaintiff and different in kind from the public's.
It does not mean a useful activity is exempt. Public benefit is not a defence to a nuisance, though it may bear on the relief granted.
It does not require ownership of land by the plaintiff. Unlike private nuisance, the plaintiff's interest is in the public right, not in his land.
Quick revision
- Public nuisance: an act or illegal omission causing common injury, danger or annoyance to the public, section 270 of the Bharatiya Nyaya Sanhita 2023.
- It is primarily an offence, not a tort.
- A private person may sue in tort only on proof of special damage: particular to him, different in kind or substantially greater in degree, and direct.
- Delay and general inconvenience are not special damage.
- Section 91 of the Code of Civil Procedure 1908: a suit for declaration and injunction by the Advocate-General, or by two or more persons with leave, without special damage.
- Section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023: a Magistrate's conditional order for removal, with sections 153 to 156 for service, compliance, penalty and procedure.
- Three routes: prosecute, apply to a Magistrate, or sue.
Test yourself
1. What is a public nuisance, and when may a private person sue for it? A public nuisance is an act or an illegal omission which causes 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 a public right: that is the definition in section 270 of the Bharatiya Nyaya Sanhita 2023. It is primarily an offence, because the wrong is done to the public at large. A private person may sue in tort only if he proves special damage, meaning damage particular to himself, different in kind or substantially greater in degree than that suffered by the public generally, and direct rather than remote. A shopkeeper whose customers cannot reach him because a road is blocked has special damage; a passer-by who is merely delayed does not.
Public Nuisance
2. What remedies exist against a public nuisance in India? Three. The State may prosecute under section 270 of the Bharatiya Nyaya Sanhita 2023, which is the primary remedy since the wrong is public. A Magistrate may pass a conditional order under section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023 requiring the removal of an unlawful obstruction or nuisance from a public place, the stopping of a trade injurious to the health or comfort of the community, the fencing of a tank, well or excavation, or the disposal of a dangerous animal, within a fixed time, and sections 153 to 156 provide for service, compliance, penalty and the procedure thereafter; this is the quickest route in practice. And a civil suit for a declaration and an injunction lies under section 91 of the Code of Civil Procedure 1908 at the instance of the Advocate-General or, with the leave of the court, of two or more persons, even though no special damage has been caused to them.
3. Why is special damage required, and what counts as special damage? It is required because a public nuisance injures everybody, and if every member of the public could sue, a single obstruction would generate an unmanageable number of identical suits; the public aspect of the wrong is left to the criminal law and to the Magistrate's summary power. Special damage means harm particular to the plaintiff, different in kind from what the public suffers, or at least substantially greater in degree, and directly caused. Loss of custom by a shopkeeper cut off by an obstruction, physical injury from an unlighted heap on a highway, and illness from a polluted supply have all been treated as special damage. Having to take a longer route, being delayed, or sharing the general discomfort of a smell or a noise is not.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.