Public Nuisance in Tort, and the Suit Under Section 91

Kailash farms beside the track and now cannot reach his field at all. He has suffered damage particular to himself, over and above the inconvenience to the village, and he may sue in his own right under the second sub-section, without leave.

Sushila lives in the village and merely walks a longer way round. Her damage is the same in kind as everybody else's. She cannot sue in her own right. She may join with another villager and apply for leave under section 91.

The village as a body wants the wall removed. The Advocate General may sue, or the villagers may proceed under section 91 with leave, or a complaint may be made to a magistrate under the summary machinery of the Bharatiya Nagarik Suraksha Sanhita 2023, which is faster and free.

Which of the three routes will actually be used? In practice, the magistrate. That is why the criminal abatement power matters far more in this subject than section 91 does, and it has a chapter of its own.

The relationship with the criminal law

The same facts are three things at once.

A crime. Committing a public nuisance is punishable under the Bharatiya Nyaya Sanhita 2023, which repealed the Indian Penal Code on 1 July 2024. Repeating or continuing a public nuisance after being enjoined by a public servant with lawful authority is a separate and more serious offence.

A matter for summary abatement. A magistrate may make a conditional order for the removal of a nuisance under the Bharatiya Nagarik Suraksha Sanhita 2023.

A civil wrong. Actionable by the Advocate General, or under section 91, or by an individual with particular damage.

The three are independent. A prosecution does not bar the suit, and an abatement order does not bar either.

The special damage requirement, and what counts

Special damage, which more recent writing calls particular damage, means damage to the plaintiff that is different in kind, and not merely in degree, from the damage suffered by the public.

Facts. In Dr. Ram Baj Singh v. Babulal, AIR 1982 All 285, dust from a brick grinding machine entered a physician's consulting chamber in quantities that left a visible coating on the clothes of those inside. Held. Special damage means damage caused to a party in contradistinction to damage caused to the public at large, and the dust in the chamber established it; further, actual damage need not be proved, because otherwise a plaintiff would have to wait for the injury to become demonstrable before he could sue. Why it matters here. It is the clearest Indian explanation of what the requirement means, and it shows how easily it can be satisfied where the plaintiff has land near the source.

Facts. In Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622, residents complained of open drains and of effluent from an alcohol plant flowing through their street. Held. The Supreme Court upheld a magistrate's order requiring the municipality to construct drains, holding that a statutory body cannot plead want of funds against a mandatory public duty and describing the abatement power as a tool of social justice for ordinary people. Why it matters here. It shows the criminal route being used precisely because the civil one was too slow and too expensive for the people affected.

Distinctions

What it does NOT mean

It does not mean section 91 is the main environmental remedy. It is slow, it needs leave, and it produces no damages for the individual. The writ jurisdiction, the magistrate's abatement power and the National Green Tribunal have all displaced it.

It does not mean a public nuisance must affect the whole public. It is enough that it affects the public or a section of it, or the people in general who dwell or occupy property in the vicinity.

It does not mean special damage means large damage. It means damage of a different kind, not of a greater amount. A person who suffers a hundred times the ordinary inconvenience has still suffered the same kind of damage.

Limits and criticism

The requirement of special damage is the reason environmental harm went unlitigated for a century. Diffuse harm is by definition damage of the same kind to everybody, so nobody had standing, and the officer who did have standing was an officer of the State that was often the polluter.

Section 91 answered the objection in 1908 and was very little used, because a suit needs money, a lawyer and years. The real answer came seventy years later from the relaxation of standing in the writ jurisdiction, which reached the same result without any of the three.

A student should say plainly that section 91 is of historical and doctrinal importance rather than practical importance, and should be able to explain why.

Quick revision

• Public nuisance: common injury, danger or annoyance to the public or to people in general in the vicinity.
• At common law an individual needed special damage, meaning damage different in kind and not merely in degree.
• Section 91 of the Code of Civil Procedure 1908: suit by the Advocate General, or by two or more persons with leave, with no special damage required.
• Section 91(2) preserves the independent right of a person who has suffered particular damage.
• The same facts are a crime, a matter for summary abatement, and a civil wrong, independently.
• Ram Baj Singh explains special damage; Ratlam shows why the criminal route is used instead.

Test yourself

1. What does special damage mean, and why did it keep environmental claims out of court? Damage to the plaintiff different in kind from the damage suffered by the public generally, not merely greater in degree. It kept environmental claims out because environmental harm is characteristically the same in kind for everybody affected: each resident of a polluted valley breathes the same air. Nobody could therefore show damage of a different kind, and the only person who could sue was a law officer of the State.

2. Two residents want to sue about a public nuisance and neither has suffered anything special. What must they do? Apply under section 91(1) of the Code of Civil Procedure 1908 for the leave of the court to institute a suit for a declaration and injunction or other appropriate relief. The section expressly dispenses with proof of special damage for such a suit, and it requires two or more persons, so one of them alone could not bring it.

3. Why is section 91 rarely used in modern environmental litigation? Because three cheaper and faster routes displaced it. A magistrate may abate a public nuisance summarily on a complaint, at no cost. A writ petition under Article 226 needs no leave, no special damage and no co-plaintiff, and can compel the regulator as well as the polluter. And since 2010 an application to the National Green Tribunal offers a specialist forum with a low fee and a power to award relief and compensation.