ABSTRACT
Public Nuisance, Is A Tortious Liability or Criminal Liability? Has Remained Mystery, Suffering from Its Schizophrenic Nature As Both Crime And Civil Action; the law of public nuisance is in some aspects uncertain and ill-defined, this acknowledges the complexities and ambiguities in the legal framework. This paper enlightens the topic with the help of divergent facts and circumstances of landmark judgements, doctrines, essential aspects under tort and crime, illustrations and most importantly, the extent and harm and the nature of the locality. This study looks into the legal aspect of a public nuisance that encompasses actions or omissions that significantly disrupt the general public’s rights, health, safety, or convenience. In addition, it specifies the defences against civil and criminal liability for the wrongdoers. In the context of tort, the injured party, typically a private individual or group, may seek a remedy through compensation or injunctive relief under special damage necessary for action for public nuisance.On the other hand, when public nuisance is regarded as a crime, it constitutes conduct that is directly injurious to the public at large, attracting criminal sanctions like fines or imprisonment under Bharatiya Nyaya Sanhitha 2023 and procedure under Bharatiya Nagarik Suraksha Sanhitha 2023. In either perspective, public nuisance legislation seeks to avoid and correct interruptions that threaten societal order and public well-being. This abstract highlights the significance of public nuisance laws in keeping society in balance and brings out the different but complementary roles of tort and criminal law in dealing with such noxious activities.
Keywords: Public Nuisance, Tort, Crime, Actionable nuisance, BNS, BNSS, CPC
INTRODUCTION:
The word “nuisance” is derived from the French word nuire, to do hurt or to annoy. Blackstone describes nuisance (Documentum) as something that “worketh hurt, inconvenience, or damage.” In modern parlance, Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it.¹ Acts interfering with comfort, health, or safety are examples of it. The interference may be in any way, e.g., noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavation or disease-producing germs. There are two types of nuisances, i.e. public nuisance and private nuisance as far as the topic concerned According to the General Clauses Act 1897, under section 3(48), public nuisance” shall mean a public nuisance as defined in the Indian Penal Code. Section 270 of the Bharatiya Nyaya Sanhita, 2023, deals with the concept of public nuisance. It prescribes the terms on which an individual can be found guilty of causing harm, annoyance, or risk to the public in general.Meanwhile, section 152 of BNSS, which speaks about the conditional order for removal of nuisance concerning any unlawful obstruction or keeping of any goods or merchandise injurious to the health or physical discomfort of the community, should be removed from any public place. Section 91 of the Civil Procedure Code, 1908 (CPC) provides for the filing of a suit in the case of public nuisance or other wrongful acts affecting the public at large. It states that such a suit can be instituted for declaration, injunction or such other relief which may be appropriate in the circumstances of the case Thus, any action which seriously hinders the health, safety, comfort and convenience of the public in general or which intend to demean morals come under public nuisance.
RESEARCH METHODOLOGY:
This research paper on understanding the true nature and scope of public nuisance as tort or crime is done with a qualitative approach using secondary data analysis to examine and understand existing literature, reports, and relevant case studies. This study incorporates a comparative analysis of private and public nuisance and its reasonableness. The data for this paper is sourced from academic journals and authorised online databases to ensure the accuracy of judicial decisions and primarily relied on books, bare acts, statutory provisions, etc. This research also uses methods to identify and analyse key factors and essentials contributing to public nuisance.
REVIEW OF LITERATURE:
The Law of Torts” 3rd edition- By Dr R. K. Bangia, The author talks about public nuisance as a crime, whereas private nuisance is a civil wrong and essential condition to constitute a public nuisance. The defences have been pleaded in an action for nuisance, i.e. effective defence, which means statutory defence and ineffective defences, both of which have been discussed further in detail.
Winfield and Jolowicz on Tort 17th edition- by W. V. H. Rogers, the author discusses the special or particular damage for the action of the public nuisance that so long as the public only or some section of it is injured no civil action can be brought by the private individual, apart from that the central issue of the whole law of nuisance is the question of the reasonableness of the defendant’s conduct has been clearly explained.
In the Law of Torts – Ratanlal and Dhirajlal, the author has covered all significant cases of the Supreme Court as well as the important decisions of various high courts. In addition to that, there is a classification of public nuisance as to obstruction of light, pollution of air and water, noise, etc..and also the liability of the highway authority in case of nuisance. Earlier, it was held that the highway authority was not liable for any neglect, but after some time, it was repealed.
METHOD
Public nuisance under tortuous liability:
“Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally, and its breach is redressible by an action for unliquidated damages.”-Winfield.
The mental element is an essential element in most of the forms of crime. Generally, under criminal law, the mere act of a person is not enough to create his liability. Men’s rea or a guilty mind is also required. A man, therefore, is not ordinarily punishable for something which he never meant or the consequences of which he could not foresee. It is not so easy to make any such generalisation about liability in tort. The position under the law of torts can be understood in two different ways with the help of cases.
Public nuisance as a tort:
Where, however, any private person is injured in some way peculiar to himself, that is, if he can show that he has suffered some particular or special loss over and above the ordinary inconvenience suffered by the public at large, then he can sue in tort, for example, if he falls into a trench unlawfully opened in the street and breaks his leg. Particular damage is not limited to special damage in the sense of pecuniary loss incurred, for example, in an action for negligence. It may consist of proven general damage, such as inconvenience and delay, provided it is substantial, direct and not consequential and is appreciably different in nature or extent to that suffered by the general public, although in another sense, it is “general” and not “special” to him. in certain cases, when any person suffers some special or particular damage, different from what is inflicted upon the public as a whole, a civil right of action is available to the person injured What is otherwise a public nuisance, also becomes a private nuisance so far as the person suffering special damage is concerned. The expression “special damage” in this context means damage caused to a party in contradiction to the public at large. For example, digging a trench on a public highway may cause inconvenience to the public at large. No member of the public who is thus obstructed or has to take a diversion along with others can sue under civil law. But if any of them suffers more damage than suffered by the public at large, e.g., is severely injured by falling into the trench, he can sue in tort. To sustain a civil action in respect of a public nuisance, proof of special and particular damage is essential.
Cause of action arose even when the plaintiff had no proprietary rights on the suit land: In Pakkle v. Aiyasami Ganapathi., a suit was filed by some villagers, in a representative capacity, to seek an injunction from the Court to restrain the defendants from laying the salt pans in the tank. The villagers had their plea that the water in the tank was meant for drinking as well as for their animals, and if the salt pans were placed, then it would make water undrinkable for them. The defendant contended on the ground that the plaintiff had no proprietary rights on the suit land as it was the property of the government. The Court was of the view that although the tank belonged to the government, the villagers had the right to use the water of the tank for drinking and bathing purposes and also for bathing and washing cattle. The Court observed-“Once it is established that the villagers have a common right over the water in the tank to use it for their bathing and drinking purposes, any interference with that right would give them a cause of action, even though the interference is not in respect of land belonging to the plaintiff. The action of the defendants would amount to a nuisance.” It was further stated that “it may be that if the government permits the defendants to lay salt pans in the tank, circumstances might arise where the injunction might not be of any use. But till that contingency arises, the plaintiffs are entitled to injunction prayed for.”
A nuisance may be defined, concerning highways, as any wrongful act or omission upon or near a highway, whereby the public are prevented from freely, safely, and conveniently passing along the highway.” To block the public highway, which stops the movement of several people, is a public nuisance. But, if someone gets injured from public nuisance, then he may file the action for damages against the offender or wrongdoer. So, a ‘public nuisance’ may become a ‘private nuisance’ when an individual gets injured.
Public nuisance under criminal liability:
Public nuisance does not create a civil cause of action for any person. So that an individual may have a private right of action in respect of a public nuisance-
- He must show a particular injury to himself beyond that which is suffered by the rest of the public. If the alleged nuisance is, for instance, the obstruction of a highway, it is not enough for him to show that he suffers the same inconvenience in the use of the highway as other people do.
(2) Such injury must be direct and not a mere consequential injury;
(3) The injury must be shown to be substantial, not fleeting or evanescent.
Public nuisance, for the most part, arises in respect of:
1. obstruction of light
2. pollution of air or water
3. Noise
If smoke, vapour, and noisome gases are communicated to the air which surrounds and enters the plaintiff’s house to cause inconvenience to the occupiers thereof and render the house manifestly less comfortable, the act will be a nuisance. In India, voluntarily vitiating the atmosphere to make it noxious to public health is indictable as an offence under section 278 of the Indian Penal Code. The Air (Prevention and Control of Pollution) Act of 1981 requires scheduled industries located anywhere in the country and any industry located within the control areas to abide by the standards laid down by the Central or State Board and provides penalties for non-compliance. Proceedings under the Code of Criminal Procedure can also be taken for removing a public nuisance caused by Air water. Noise or environmental pollution. The 1981 Air Act did not include the provision relating to control of noise pollution, but by amendment in 1987, noise present in the atmosphere has been brought within the definition of air pollutant. The Central Pollution Control Board has laid down certain noise standards under section 16 of the Act.
Water-Pollution of a public spring or reservoir, to render it less fit for the purpose for which it is ordinarily used, is a public nuisance and is punishable as an offence. In Dr. Ram Raj Singh v. Babu Lal, the defendant installed a brick grinding machine. The plaintiff had a clinic in the adjoining premises. Due to brick grinding, the air in the vicinity was polluted, and dust particles, red in colour, were all visible on clothes. The plaintiff got special damage, as proved in the Court, and the Court also granted a permanent injunction restraining the defendant from running his brick grinding machine there. The appropriate remedy was provided under section 268 of the Indian Penal Code coupled with sections 133 to 143 of the Criminal Code.
The extent of the harm and the nature of the locality or unreasonable interference:
Interference may cause damage to the plaintiff’s property or may cause personal discomfort to the plaintiff in the enjoyment of property. Every interference is not a nuisance. This is also based on the principle of De-Minimis Non-Curat Lex. In the leading case of St. Helen’s Smelting Co v Tipping Where trees on the claimant’s estate were injured by fumes from a copper smelter, the House of Lords distinguished between matters producing “sensible injury to the value of the property” or “material injury on the one hand and those attending personal discomfort on the other. In assessing whether the latter constitutes an actionable the other, it is necessary to take into account the nature of the locality so that interference which may be permissible in one area may be in another, as it was once put, “What would be a nuisance in Belgrave Square would not necessarily be so Bermondsey”, though it must at once be added that even the inhabitants of Bermondsey are entitled to a measure of legal protection. In these cases, there must be something over and above the everyday Inconveniences which are inevitable in that locality. “The law does not regard trifling inconveniences; everything is to be looked at from a reasonable point of view.”
SUGGESTION:
Although the overlap between these legal models guarantees comprehensive protection, it also proves difficult, for example, to define standing for civil claims and to balance public and private interests. The dual character of public nuisance underlines the necessity of strict legal rules to respond to changing social issues, as industrial pollution and urban unrest. Public nuisance law is, in the end, an important instrument for preserving public order and well-being, which needs ongoing legal fine-tuning in order to help control contemporary problems.
CONCLUSION
During the late 19th and early 20th centuries, it was difficult to make the nuisance law stick because those individuals who needed to utilize the same property but in different capacities frequently caused conflicts for one another. But it has also changed and adapted different dimensions of interpretation, based on its own geographical, cultural and economic diversity, to try to bring justice to nearly every one of its citizens and uphold the rule of the Rule of Law and Justice, Equity and Good Conscience. Public Nuisance as a Tort and as an Offence: If the public nuisance has been committed, anyone who has suffered special damage can sue in respect of it. It may, for example, be occupied by neighbouring property, and it may be a user of the highway. In a public nuisance action, after the nuisance is established and the defendant is established to have caused it, then the legal burden shifts to the defendant to excuse or justify himself. If he cannot, he is liable. Public nuisance has a special place in law, being both a tort and a crime. As a tort, it permits individuals or groups harmed by such conduct to seek civil redress. As a criminal offence, it is enforced by the state to safeguard the public in general from conduct injurious to health, safety, or comfort.
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Name: Harshitha S
College: 4th Year B.B.A.LL.B JSS Law College (Autonomous),Mysuru