Road blockages and waste disposed on the roads, which are very commonly sighted, are everyday nuisances, but from a legal point of view, what is a nuisance?
What Is A Nuisance?
The term 'nuisance' is incapable of an exact and exhaustive definition. The word 'nuisance' is derived from the French word `Nuirc,' which means to injure, hurt, or harm.
According to Shorter Oxford Dictionary, it means `anything injurious or obnoxious to tile community or to lie individual as a member of it, for which some legal remedy may be found.'
Liberally, anything that causes annoyance or that works hurt or injury, harm or prejudice to an individual or the public, or anything wrongfully done or permitted which injures or annoys another in the legitimate enjoyment of his legal rights would constitute a nuisance.
The Karachi High Court has, in Sultan Ahmed v. Syed Wahid Hussain, 1991 MLD 1340, defined nuisance as “Anything did which unwarrantably affects the rights of the others endangers life or health gives offense to the sense, violates the laws of decency or obstructs the comfortable and reasonable use of property can amount to the nuisance.”
Nuisance is of two kinds, namely:
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Private nuisance
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Public nuisance
Private Nuisance
A private nuisance is anything done to the annoyance of some particular individual or individuals as distinguished from the public. A private nuisance is a nuisance that violates a personal right not familiar to the public or causes damage to one or a limited number of individuals. A private nuisance involves using one's property that causes significant harm to another individual's use or enjoyment of their private land.
Public Nuisance
A public nuisance generally refers to any conduct that interferes with the rights of the public.
A public nuisance is an offense both under civil and criminal law. It can be complained of under the Code of Civil Procedure, 1908 (the “CPC”) or under the Code of Criminal Procedure, 1898 (the “Cr. PC”).
The distinction between Public and Private Nuisance
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The act causing nuisance must be illegal in a public nuisance for it to be treated as a crime, whereas, in a private nuisance, even legal action could cause injury, danger, or annoyance to another person.
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A public nuisance is a crime, while a private nuisance is a tort.
Public Nuisance Under The CPC
The CPC does not define the term public nuisance. In accordance with Section 2(44) of the General Clauses Act, 1897, it is to be given the same meaning as is assigned to by Section 268 of the Pakistan Penal Code 1860.
Section 91 of the CPC provides for public nuisance. It reads:
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In the case of a public nuisance, the Advocate General, or two or more persons having obtained the consent in writing of the Advocate General, may institute a suit. However, no special damage has been caused, for a declaration and injunction or such other relief as may be appropriate to the circumstances of the case.
By a plain reading of the provision, it is clear that a civil suit against public nuisance can be instituted either by the Advocate General or two or more persons with the permission of the Advocate General.
The suit may be filed irrespective of the fact that no special damage has been caused.
Public Nuisance under the Cr.PC:
Chapter X of the Cr.PC deals with the subject of Public nuisances. To constitute an act or illegal omission a public nuisance, it must have regard to section 268 Pakistan Penal Code, 1868, which defines a public nuisance in the following words:
268. Public nuisance;
A person is guilty of a public nuisance who does any act or is guilty of an illegal omission that 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 because it causes some convenience or advantage.
To establish public nuisance, such an act or omission must affect the public or people in general and not only a particular class of people or community. Additionally, if an action is a nuisance to the general public, it will not be allowed to continue because it has some advantages.
The legal requirements to establish public nuisance are:
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Firstly, that action complained of is injurious to the health or physical comfort of the community
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Secondly, the activity complained of must be illegal or prohibited under some law
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Thirdly, that injury, danger, or annoyance is caused to the public in general
The Remedy Under Cr. PC
Under Section 133 of the Cr.PC, the Magistrate concerned, has the discretion to pass or not to give a conditional order for removing the nuisance or unlawful obstruction.
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If on examination of the presented complaint, the magistrate thinks it fit to proceed with the case, he may issue a notice to the respondent to appear before him on a specified date to show cause as to why he should not be made to remove the public nuisance.
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On appearance and submission of reply and presenting some evidence by the respondent, the Magistrate. If the respondent fails to satisfy him, the Magistrate will make the conditional order absolute.
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The final order is passed under Section 140 of the Cr.PC requires him to perform the actions directed by the order of the Magistrate to remove nuisance within a fixed time. In case of non-compliance or disobedience, he will be liable to the penalty provided by Section 188 of the Pakistan Penal Code.
Absolute Order under Section 140
Order under Section 133 is conditional and under Section 140 of the Cr.PC is in complete order. A conditional order passed under section 133 cannot be challenged in a Civil Court by instituting a civil suit, but there is no such bar to an absolute order passed under section 140 of the Cr.PC is being challenged in a Civil Court.
