The Rest of the Procedure, and Whether It Works
Chapter Thirty-Four
Syllabus topic 1, "General Laws on Environmental Concern"
Pages 135 to 138 of 913
In one line
Eleven sections follow the conditional order, and they decide whether it survives the person's objection.
In the wording a student can write in an examination: sections 156 to 162 of the Bharatiya Nagarik Suraksha Sanhita 2023 carry the procedure after a conditional order under section 152, providing for the position where the existence of a public right is denied, for the inquiry where the person appears to show cause, for local investigation and the examination of an expert, for the consequences of failing to comply with an order made absolute, for an injunction pending inquiry, and for the magistrate's power to prohibit the repetition or continuance of a public nuisance.
Why the procedure decides the case
The conditional order is easy to obtain. Whether it survives depends on what happens next, and the person against whom it is made has three lines of defence built into these sections: deny the public right, dispute the facts, and demand an expert.
Section 156, the denial of a public right
Where an order under section 152 is made for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the magistrate must, when the person appears, question him as to whether he denies the existence of any public right in respect of it.
If he denies it, the magistrate must inquire into the matter before proceeding. If the inquiry discloses reliable evidence in support of the denial, the magistrate must stay the proceedings until the existence of the right has been decided by a competent court. If there is no such evidence, he proceeds.
A person who, on being questioned, fails to deny the existence of the public right, or who denies it and fails to adduce reliable evidence in support, is precluded from raising the question afterwards.
Why this is the first line of defence. A builder who has walled off a village path will deny that a public right of way ever existed. That converts a summary abatement into a civil dispute about title, which will take years, and the magistrate must stay his hand once reliable evidence is produced.
Sections 157 to 159, the inquiry
Section 157 provides for the procedure where the person appears to show cause: the magistrate takes evidence in the manner provided for a summons case, and if he is satisfied that the order is reasonable and proper he makes it absolute; if he is not so satisfied no further proceedings are taken.
Section 158 empowers the magistrate, for the purposes of an inquiry under section 157, to direct a local investigation to be made by such person as he thinks fit, or to summon and examine an expert.
The Rest of the Procedure, and Whether It Works
Section 159 provides for the furnishing of written instructions to the person making a local investigation and for the report to be read as evidence.
The power to summon an expert is what makes this procedure usable for pollution. A magistrate who cannot decide whether an effluent is injurious to health can direct an analysis.
Sections 160 to 162, the consequences
Section 160. Where an order has been made absolute and the person against whom it is made fails to perform the act directed within the time fixed, the magistrate may cause it to be performed and may recover the cost from that person, 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 his within or without the local jurisdiction; and no suit lies in respect of anything done in good faith under the section.
This is the section that gives the machinery its bite. The nuisance is removed at the defaulter's cost whether or not he cooperates.
Section 161. Where the magistrate making an order under section 152 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 the person against whom the order was made directing him to avert the danger, and if he does not the magistrate may himself use or cause to be used such means as he thinks fit, with no suit lying in respect of anything done in good faith.
Section 162. 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 in this behalf, may order any person not to repeat or continue a public nuisance as defined in the Bharatiya Nyaya Sanhita 2023 or any special or local law.
Section 162 is the injunction that section 293 of the Nyaya Sanhita punishes the breach of, and the reference in it to a special or local law is what lets the machinery be used to enforce a municipal or a pollution statute.
Worked example
A stone crusher operates two hundred metres from a village school. Dust settles on the classrooms. A conditional order is made under clause (b) of section 152.
The operator appears and denies the facts. Section 157 applies. The magistrate takes evidence as in a summons case.
He says the dust comes from the road, not from him. The magistrate directs a local investigation under section 158, and summons an expert from the Pollution Control Board to sample and report.
The report supports the complaint. The order is made absolute under section 157.
The Rest of the Procedure, and Whether It Works
He does not comply. Section 160: the magistrate may have the crusher's screens or its operation stopped, and recover the cost by distress and sale of his movable property.
In the meantime the school is unusable. Section 161: if there is imminent danger or injury of a serious kind, an injunction may be issued at once and, on default, the magistrate may take the measures himself.
Afterwards. Section 162: an order not to repeat or continue the nuisance, breach of which is punishable under section 293 of the Nyaya Sanhita with six months' simple imprisonment.
Distinctions
| Section 152, the conditional order | Section 163, the urgent-cases order | |
|---|---|---|
| Precondition | A nuisance within one of six clauses | Sufficient ground for proceeding and immediate prevention or speedy remedy desirable |
| Made against | The person causing the nuisance | Any person, or the public generally in a defined area |
| Hearing | The person may show cause before it is absolute | May be made ex parte in emergency |
| Duration | Until complied with | Two months, extendable by the State Government to six in certain cases |
| Use | Abating a continuing nuisance | Preventing an imminent one |
What it does NOT mean
It does not mean the magistrate decides the public right. Section 156 requires him to stay his hand and send the question to a competent court once reliable evidence supporting the denial is produced.
It does not mean the expert's report decides the case. It is evidence, read under section 159, and the magistrate must be satisfied on the whole material that the order is reasonable and proper.
It does not mean the cost of removal is a penalty. It is a recovery under section 160, and it is in addition to any punishment.
Limits and criticism
Section 156 is the weak point. A determined respondent with a colourable claim can convert a summary abatement into civil litigation about title, and there is no filter against a denial made only for delay.
There is no standard. The magistrate asks whether a trade is injurious to health or physical comfort, and different magistrates answer differently on similar facts.
The expert is optional. Section 158 says the magistrate may summon an expert. Nothing requires him to, and a magistrate who decides a pollution question without technical evidence is doing what section 158 exists to prevent.
It is faster than everything else. That is the answer to all three, and it is why the machinery survives.
Quick revision
- Section 156: the denial of a public right; on reliable evidence the magistrate stays until a competent court decides; a person who does not deny is precluded later.
- Section 157: the inquiry, evidence as in a summons case, order made absolute if reasonable and proper.
- Sections 158 and 159: local investigation and the examination of an expert, the report read as evidence.
- Section 160: on default the magistrate has the act done and recovers the cost by distress and sale.
- Section 161: injunction pending inquiry where there is imminent danger of a serious kind.
- Section 162: order not to repeat or continue a public nuisance, breach punishable under section 293 of the Nyaya Sanhita.
The Rest of the Procedure, and Whether It Works
Test yourself
1. What happens when the person against whom a conditional order is made denies that any public right exists? Section 156 requires the magistrate to question him on the point when he appears, and if he denies the existence of the public right the magistrate must inquire into the matter. If the inquiry discloses reliable evidence supporting the denial, the proceedings must be stayed until a competent court decides the question. If there is no such evidence, the magistrate proceeds under section 157. A person who fails to deny, or who denies and fails to adduce reliable evidence, cannot raise the question afterwards.
2. The order is made absolute and ignored. What can the magistrate do? Under section 160 he may cause the act directed to be performed and recover the cost from the defaulter, by the sale of any building, goods or property removed under his order or by distress and sale of any other movable property of his, whether inside or outside the local jurisdiction. No suit lies in respect of anything done in good faith under the section. Separately, the defaulter is liable under section 223 of the Nyaya Sanhita and, for continuance after the injunction, under section 293.
3. Which provision lets a magistrate get technical evidence, and why does it matter for pollution cases? Section 158, which empowers him for the purposes of an inquiry under section 157 to direct a local investigation by a person he thinks fit, or to summon and examine an expert, with the report read as evidence under section 159. It matters because the question under clause (b) of section 152 is whether a trade is injurious to the health or physical comfort of the community, which cannot honestly be answered about an effluent or an emission without analysis.
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.