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Courts and

public nuisance

Deshi Sugar Mill v Tupsi Kahar. AIR 1926 Pat 506


About a hundred people approaching, magistrate
ordered to discontinue two sugar mills draining
dirty, toxic water into the river)

Court recognized the magistrates power to


apply law of nuisance in s133 to pollution
did not interfere - no sufficient evidence to
pinpoint which of the two contaminated the
river.
no complaint against the one on the upstream till
the one in the downstream came into being.
A civil surgeon and a chemist saying pollution of
the river due to vegetable growth.

Ram Baj Singh (Dr) v Babulal,


AIR 1982 All 285

brick-powdering mill

generating dust entering doctors


chamber,
causing physical inconvenience to him
and his patients
the machine installed without valid
permission
after the doctor had started his
consulting chamber

Philosophy of Nuisance

public nuisance - consequence of ones acts


no longer remains confined to his own
property, but spills over in a substantial
manner to the property belonging to another
reasonable persons do not consider trivial
consequences as nuisance
something
done by the owner of a
neighboring land upon his own land which is
not comfortable or is wholly uncomfortable
with physical comfort and human existence
person aggrieved gets a right to sue - act of
the neighbor an actionable nuisance.

A note of caution
a) to judge whether the air has been
polluted to an extent that it has ceased
to be comfortable with human comfort
and existence
b) standard to be employed again is that
of a sober and reasonable mind
c) Concepts of elegant and dainty living
wholly out of place - the location of a
property a relevant circumstance
d) person living in an industrial locality
cannot claim to have as much fresh air
as a person living in a non-industrial
area

Special damage
special damage indicates damage
caused to a party contrary to damage
caused to the public at large
When an act amounts to public nuisance,
an individual can sue in his own right.
This can be done if he is able to prove
special damage to himself, i.e, damage
personal to him as opposed to damage or
inconvenience caused to the public at
large or to a section of the public.

Single act amounting to


pub.nuice
damage caused to public at large, on
account of a nuisance, is referred in law as
public nuisance.
a single act may amount to a public nuisance
providing cause of action to an individual to sue
- Example
a) heaps of night soil on the side of a public
highway
b) nuisance to the general public as well as a
private nuisance to a person who lives in a
adjoining house.

Test of the reasonable man


Dust emanated from the crushing of bricks - assessment of
substantial injury is to be made by the test of reasonable man
and not by the susceptibilities of hypersensitive persons. The
court said, Causing of actual damage by the act complained
of as a nuisance is beside the point. If actual damage or actual
injury were to be the criterion a person will have to wait before
the injury becomes palpable or demonstrable before instituting
a suit or its abatement.
the high court issuing a permanent injunction against using the
offending brick grinding machine - nuisance created by the
defendants brick powdering machine caused common injury,
danger or annoyance to the patients visiting the consulting
chamber
people were using road dividing the defendants place of
business and the plaintiffs chamber no debate whether such
nuisance would come within the ambit of public nuisance
under s. 133 of Cr PC, although the case was filed as a suit.

PATH OF ACTIVISM

GOVID SINGH v SHANTI SWAROOP


AIR 1979 SC 143

nuisance of smoke from a bakery - magistrate


ordering demolition of the oven and the
chimney and winding up e business

approving magistrate use of the


oven and chimney was virtually
playing with the health of the
people
emission of smoke injurious to the
health and physical comfort of
people in the proximity
Held, not merely the right of a

Govind Singh continues


the safer course to accept the view of the
Magistrate, who saw for himself in a local inspection
the hazard
carry on the trade of a baker but should not use the
oven and the chimney.
How can a baker carry on his trade if the oven and
the chimney for his bakery were demolished ? Not
examined in the case.
Supreme Court of India has captured the potentiality
of the law of nuisance in Cr PC as a remedy for
environmental
assaults
went
into
wider
parameters of public nuisance

Municipal Council, Ratlam v Vardhichand

, AIR1987 SC 2734

Residents within Ratlam, suffering from


pungent smell from open drains and
slums and the malodorous liquids
flowing on to the street from the
distilleries
magistrate ordered time bound sixmonth
program
for
constructing
drainage and public latrines
municipality opted to challenge this
pleading
financial
constraints
and
inability to carry out the scheme

Ratlam continues
municipal legislation casting a duty on the municipality to
maintain clean roads and clean drains and IPC punishment
for contravening magistrate s direction are imperative
tones demanding a mandatory duty under s133 Cr
PC
municipality cannot plead that notwithstanding the public
nuisance, its financial inability validly exonerated it from
statutory liability
Cr PC operates against statutory bodies regardless of the
cash in their coffers because human rights have to be
respected by the state irrespective of budgetary
provisions
statutory agencies should not defy their duties by urging in
self-defense, a self-created bankruptcy of perverted
expenditure budget.

Ratlam generated innovative ideas


Decency and dignity are non-negotiable facets
of human rights and are a first charge on the
local self-governing bodies. Similarly, providing
drainage systems not pompous and attractive,
but in working condition and sufficient to meet
the needs of the people cannot be evaded if
the municipality is to justify its existence
The processes having a social justice component
The remedies and the powers under the are conducive
to the demands of the rule of law necessitated by the
conditions of developing countries
municipality should prepare a scheme and abate the
nuisance.

Ratlam : a landmark in path of environmental jurisprudence

The judicial activism of the eighties - an important role in reaching new


horizons of environmental jurisprudence in India - Ratlam a significant
milestone in the path - identified responsibilities of local bodies towards
the protection of environment - developed law of public nuisance as a
potent instrument for enforcement.
served to offset the insufficiency of the legal mechanism and enforcement
not only in the laws governing local bodies but also in other environmental
legislations such as Water Act, Air and EPA
Local self-governing institutions can hardly take up welfare and
development plans, unless they
have sufficient funds - In certain
instances, directions of the court may prove to be unenforceable. Was plea
of financial inability rejected in a realistic manner?
73rd and 74th amendments to the Constitution - more powers,
responsibilities and financial strength - Ratlam period might have been
different with perpetual negligence in providing basic amenities and
performing clean-up duties - their zeal in spending money for litigation
instead of providing civic amenities - obvious factors that weighed with the
court in brushing aside the plea of financial inability
a trendsetter - widened the scope and amplitude of the jurisdiction of e
magistrate under s 133 of Cr PC - a useful antidote to the crisis of sanitary
environment management in the Indian scenario the case lays down
basic guidelines in determining the primary responsibilities of local bodies
and industries

Krishna Gopal v State of (1986) Cr LJ 396

manufacturing of medicine in a residential locality with the


aid of a booming boiler resulting in emission of smoke noise
MP High Court held
the community or large number of
complainants need not complain
s 133(1): jurisdiction of magistrate can be invoked on receiving a
report of a police officer or other information, and on taking such
evidence if any, as he thinks fit
rejected contention that the inconvenience to the inmates of the
house is not public nuisance, but only private nuisance - undoubtedly
injurious to health as well as the physical comfort of the community dismissed revision petition with costs.
Krishna Gopal applied both to air and noise pollution - found a wider
scope for the law of public nuisance for protecting the environment facts showing several public authorities colluding to grant license to
the company - a parallel civil suit decreed ex parte against one of the
authorizes
Ratlam gave substance to the provision in s 133, Krishna Gopal
renders it a new vigour.

Noise as public nuisance


Raghunandan v Emperor AIR 1931 All 433
magistrate forbidding operation of factory engines from 9 pm to 5 am
as it was injurious to the physical comfort of the community

Himmath Singh v Bhagwana 1988 CrLJ 614 (working of the fodder


cutting machines caused noise and offensive smell - sand-laden winds
carrying particles of fodder to the residential colony close by People
could not sleep, nor could wet clothes be sun dried)

Rajasthan High Court held that all these constituted public nuisance
justifying interference of the magistrate.
Madhavi v Thilakan

(1989) Cr LJ 499 (nuisance by automobile workshop in

residential area)

We recognise every mans home to be his castle which cannot be invaded by


toxic fumes, or tormenting sounds. This principle expressed through law and
culture, consistent with natures ground rules for existence, has been
recognised in s 133(1)(b). The conduct of any trade or occupation, or keeping
of any goods or merchandise injurious to health or physical comfort of
community could be regulated or prohibited under the section.
Not only criminal jurisdiction but also preventive and remedial jurisdiction a
repository of regulatory powers of the state in the interest of health and
physical comfort of the community

Contours of public nuisance


Jayakrishna Panigrahi v Hrisikesh Panda (1992) Cr LJ 1054.
The chapter containing s. 133 is titled public nuisance while the
section only nuisance arguable that expression nuisance cannot
but be interpreted as public nuisance.
Rajasthan High Court held, despite heading public nuisance, literal and
unambiguous meaning given to nuisance applying to a case where the
interest of a single individual or of a few individuals are affected.
Pranab Kumar Chakraborty v Mhd Akram Hussain 1991 Cr LJ 3156
With the help of s 133 a landlord could not evict a tenant in an
unreasonable manner - owner complaining that the tenant had in a
room kept under lock and key some unhygienic articles producing
bad smell - orders from magistrate, the police broke the door open
without the knowledge of the tenant only to find no article causing
odour.
The Gauhati High Court interfered and quashed the orders of the magistrate
and restored the room to the tenant. discretion of the magistrate under s
133 is not unbridled he has to apply his mind whenever a complaint is
brought before him.

Air pollution as public nuisance

Shoukat Hussain v Sheodayal, AIR 1958 MP 350


(particles of cotton blown from a cotton-carding machine causing breathing
difficulties to the non-applicant and his neighbors - residents not complained
Magistrate on a report: harm might affect more people and amount to public nuisancecourt: nuisance of one person and his neighbors cannot be public nuisance - facts show
that the nuisance would have affected a large number of people - S. 133, Cr PC not
showing it apply only to actual nuisance - when the construction of a building or the
condition of a tree is likely to be dangerous to the public, preventive action can be
taken - no reason why such preventive action is not allowed in all types of public
nuisance. In recent times, unpredictable and rapid environmental catastrophe
prevention is better than cure
Ajeet Mehta v State of Rajasthan, 1990 Cr LJ 1596
business of loading, unloading and stocking of fodder near a residential
locality being a serious health hazard polluting atmosphere with dust particles of
fodder - order of the magistrate for removal of the business was endorsed
Kachrulal Bhagirat Agrawal v Maharashtra, 2004 Cr LJ 4634
Storage, loading and unloading of red chillies in a godown situated in a
residential locality was alleged to have caused public nuisance - residents suffering
from sneezing, coughing, asthma, irritation of skin and burning sensation - Supreme
Court observed that there must at any rate, be an imminent danger to health or the
physical comfort of the community in the locality in which the trade or occupation is
conducted.
Imminent danger means a sense of urgency that failure to take recourse would bring
irreparable danger to the public.

CONFLICT OF JURISDICTION

Water and air Acts cover the area in relation to the control of
water and pollution of a special statute with machinery to
redress grievances - each law a code
do these special statutes aiming protection of the environment
prevail over, or repeal, s 133 - procedural formalities make the
remedies under those laws a complex time-consuming process
sometimes court seizing of the matter after happening of harm
Repeal being a legislative exercise, special laws do not repeal
the law of public nuisance - no implied repeal special law
overrides general law, only if, both operate on the same field one relates to pollution control, the other refers to maintenance
of public order and tranquility
compelling the aggrieved citizens to approach the board brings
no effective results being more or less a complainant before a
judicial magistrate Cr PC provides a mechanism for quick
remedy against nuisance.

State of MP v Kedia Leather and Liquor Ltd (2003) 7 SCC 389

(Magistrate directed closure as the industries discharged effluents to the


stream resulting in public nuisance. The high court held subsequent
enactments impliedly s. 133)
The area of operation in the Code and the pollution laws in question are different
with wholly different aims and objects, and though they alleviate nuisance, that
is not of identical nature. They operate in their respective fields and there is no
impediment for their existence side by side. While the provisions of section
133 of the Code are in the nature of preventive measures, the provisions
contained in the two Acts are not only curative but also preventive and penal.
The provisions appear to be mutually exclusive and the question of one
replacing the other does not arise.
Perhaps one may not agree with these arguments when one notes that the use
of s.133 to combat pollution enters the domain of laws relating to pollution of
water and air. It removes the same evil although methods differ. This difference
makes the public nuisance remedy easier than those available under the special
laws. Despite possible criticism on a highly legalistic plane, it cannot be denied
that Kedia Leather has strengthened the environmental content in the provision
of law of nuisance. The people in far-off villages and towns may find it extremely
difficult to approach the Supreme Court or the high courts with complaints
against ecological woes of their locality. Nor will succeed in getting a quick and
effective remedy by approaching the board - executive magistrates empowered
with jurisdiction to move the machinery against public nuisance are available in
every district with a grass root remedy.
the executive magistrates subject to the dictates of the higher echelons of