Legal provisions regarding Public Nuisance under section 268 of Indian Penal Code
Meaning of Nuisance (Nocumentum)
Nuisance or annoyance means anything which causes hurt, inconvenience, or damage, or which essentially interferes with the enjoyment of life or property. ‘Nuisance’ includes any act, omission, place, or thing which causes or is likely to cause injury, danger or offence to the sense of sight, smell or hearing or which is, or may be, dangerous to life or injurious to health or property.
Anything done which unwarrantedly affects the rights of others, endangers life or health, gives offence to the senses, violates the law of decency or obstructs the comfortable and reasonable use of property amounts to nuisance.
Kinds of nuisance:
Nuisances may be divided into two main headings namely, (i) private nuisances and (ii) public nuisances. This division is not exhaustive, and to some extent overlap with each other; for the same act may often cause a public nuisance and also cause special damage to individuals.
Nuisances may be permanent, continuing, recurrent and temporary nuisances. A permanent nuisance is one of such a character and existing under such circumstances that it will be presumed to continue indefinitely, and as a rule consists of some building or structure.
Nuisances consisting of acts done, or particular uses or property, may be properly termed continuing when they are of such a character that they may continue indefinitely, or on the other hand may be discontinued at any time; recurrent when they occur from time to time but are not continuous or uninterrupted; and temporary when from their nature they will not be continued or repeated.
Nuisances may be (i) nuisances per se or nuisances at law and (ii) nuisances per accidents or nuisances in fact. A nuisance at law or a nuisance per se in an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. A nuisance in fact or nuisance per accident consists of those acts, occupations, or structures which are not nuisances per se but may become nuisances by reason of the circumstances or the location and surroundings.
Private nuisance is anything which causes material discomfort and annoyance to a man in the use for ordinary purposes of his house or property and for the suppression of which the individuals aggrieved are entitled to invoke the assistance of the courts.
Private nuisance may be defined as anything done to the hurt or annoyance of the lands, tenements or, hereditaments of another since private nuisance affects only particular individuals and they are treated as private wrongs and they do not form the subject matter of public prosecutor.
Public or Common nuisances:
Public nuisance or common nuisance is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general, or by neglecting to do anything which the common good requires. It is an act affecting the public at large, or some considerable portion of them; and it must interfere with rights which members of the community might otherwise enjoy.
Public nuisances which injuriously affect the welfare of the community are dealt with by or in the name of State or corporate bodies specially authorised by statute to intervene.
In public nuisance it is not necessary that the annoyance should injuriously affect every member of the public within its range of operation. It is sufficient that it should affect people in general who dwell in the vicinity. It is also sufficient that if the act is of such a nature that it must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
In regard to the public nuisance, the rights which are common to all subjects have been infringed; generally speaking such rights are unconnected in any way with possession or title to immovable property.
Regarding Public nuisance:
Section 268 of the Indian Penal Code 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.
A common nuisance is not excused on the ground that it causes some convenience or advantage.”
Section 268 of the Code requires the following essentials.
(1) Doing of any act or illegal omission to do an act.
(2) The act or omission;
(i) Must cause any common injury, danger or annoyance-
a) To the public, or
b) To the people in general who dwell or occupy property in the vicinity, or
(ii) Must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
Public nuisance is based on the principle embodied in the maxim of civil law “sic utere tuo ut rem publicum non laedas”, which means ‘enjoy your property in such a way as not to injure the right of the public’.
According to Section 12 of the Code, the word ‘public’ includes any class of the public or community. Thus, a class or community residing in a particular locality may come within the term ‘public’. In popular parlance, the word ‘public’ means the general body of humankind or of a nation, State or community.
But as defined in the IPC, it includes any class of the public even so small, but still large enough to form a ‘class’ and which excludes the possibility of a mere individual. By ‘public’ means general public and not an individual of particularly refined susceptibilities.
To constitute an offence under Section 268, there must be an injury, danger or annoyance. It must be caused to the public or the people in general, who live or occupy property in the vicinity. It can also be caused to anyone who may have the occasion to use a public right.
It is immaterial whether the act complained of is convenient to a large number of the public than it inconveniences, but the fact that the act complained of facilitates the lawful exercise of their right by part of the public may show that it is not a nuisance to any of the public. In the second paragraph of Section 268 it is stated that a common nuisance cannot be excused on the ground that it causes some convenience or advantage.
No prescriptive right can be acquired to maintain and no length of time can legalise a public nuisance, though twenty years’ user may find the right of an individual, yet the public have a right to demand the suppression of a nuisance even of a longer standing.
The words ‘illegal omission’ in Section 268 must be construed in the light of the definitions of words ‘acts’, ‘act’ and ‘illegal’ given in Sections 32, 33 and 43, IPC, respectively. Every omission will not constitute an offence under Section 268. Unless the omission which causes the nuisance is an illegal omission in the above sense, there will be no public nuisance.
Acts which seriously interfere with the health, safety, comfort, or convenience of the public generally, or which tend to degrade public morals have always been considered public nuisances. Some of the public nuisances, according to decided cases, are:
1) A brew-house, glass-house or swine-yard may be a public nuisance if it is shown that the trade is such as to render the enjoyment of life and property uncomfortable;
2) Erecting gunpowder mills or keeping gunpowder magazine near a town;
3) Keeping large quantities of naphtha near dwelling-houses;
4) Blasting stone near a high-way;
5) Keeping large quantities of materials for making fireworks near a street;
6) Working rice-husking machine at night in a residential quarter of a city;
7) Keeping disorderly houses e.g., disorderly inns, bawdy houses, gaming houses;
8) Committing acts of indecency in public places;
9) Houses maintained for gambling or the keeping up of lottery or betting house that attract a number of disorderly persons and thus cause annoyance to the neighbours;
10) Disturbing the stillness of the night by making a great noise by speaking with loud voice, or a nude exposure of one’s person to the public, whether from the balcony of one’s own house or from a public place such as a urinal, an omnibus or a bathing place, however ancient, by which female pass or the exhibition of a nude figure covered with sores as an advertisement by a herbalish;
11) Exhibition by beggars in fairs or markets of their loathsome ailments with a view to exciting pity will also be nuisance though it is generally tolerated by the apathetic masses;
12) If any portion, however small, of a public road is encroached upon, it would cause obstruction to persons who may have occasion to use the highway and it would constitute the offence of public nuisance.
13) Appropriating a part of a street by building over it or by erecting a platform in front the house which abutted on it; filling up a portion of a ditch or drain which formed part of a public way and which belonged to the public.
14) Tobacco smoking in the form of cigarettes, cigars, or beedis falls within the mischief of the penal provisions relating to ‘public nuisance’.
There is a class of nuisance which is known as legalised nuisance such as cremation of the dead, licensed trade etc. Even a lawful trade may sometimes become a nuisance, if it interferes with the comfort and peace of the neighbours or if it becomes a health hazard.
Slaughtering of cattle cannot be deemed to be a public nuisance, unless the act is done in places and in a manner where it might prove to be a public nuisance. Mere sale of meat or fish near or on a public road cannot be deemed a nuisance though the fact that such exposure is offensive to the religious susceptibilities may be a matter for executive action.
The throwing of rubbish into one’s own garden is ordinarily not a public nuisance unless it affects the hygienic conditions of the vicinity.
A common gambling-house to which everyone who chooses to pay is able to go is necessarily a nuisance and no evidence of any actual annoyance to the public is required in such a case. But a person who admits gamblers into his house and every person who games therein are not guilty of this offence in the absence of such evidence.