Jan 1, 20215 min read

Public nuisance discussed like never before

PUBLIC NUISANCE

133. Conditional order for removal of nuisance.—

(1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers—

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order—

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or

(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order, or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.

Explanation.—A “public place” includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.

Sections 268-294-A of Indian Penal Code, 1860 which relate to public nuisances under the Indian Penal Code provide punishments for the commission of offences, while this chapter contains a procedure for speedy removal of the obstruction or the nuisance itself which is injurious to the public.

Public nuisance is something which is offensive to the public, an inconvenience, discomfort or hurt, annoying or endangering the safety of the whole community in general.

Section 268 IPC : In order to constitute a public nuisance, the injury, danger or annoyance must be caused to the public, or to the people in the vicinity, or to persons who may have occasion to exercise any public right

According to Section 12 IPC, the word “public” includes any class of the public or community; but that class must be numerically sufficient to be designated “the public”.

SCOPE :

Chapter 10-B of CRPC deals with public nuisance.
Section 133 provides a speedy and summary remedy in case of urgency where danger to public interest or public health, etc. is concerned

When the power is exercised under this section, it becomes a conditional order.

NATURE OF POWER :

When on disclosure of existence of a public nuisance from information and evidence the Magistrate considers that such unlawful obstruction or nuisance should be removed from any public place which may be lawfully used by the public, he is to order removal of such nuisance within a time to be fixed by the order.[ Municipal Council, Ratlam v Vardichan, (1980) 4 SCC 162. ] .
INFORMATION : Information can be from an individual, a corporate body or Society and including any person who is aggrieved of such public nuisance.
This section empowers the Magistrates specified therein to make a conditional order for the removal of such nuisances in emergent cases.

This power being summary in nature should be sparingly used.
The idea is that if immediate steps are not taken, irreparable injury will be done. Extraordinary powers were meant to be exercised under extraordinary circumstances.[ Basanti Devi v Rex, AIR 1949 All 650 : (1949) 50 Cr LJ 991]
If the obstruction is lawful, no proceeding under section 133 of Code of Criminal Procedure, 1973 can be maintained.[ Ajit Kumar Kesri v State of Jharkhand, 2014 (1) JLJR199]
The injunction/ pendency of civil suit or if dispute was of civil nature cannot bar the proceedings under this section. Parallel proceedings under this section and civil suit can be entertained.

LIMITATIONS:

When the obstruction is not of public nuisance. (landlords cannot evict tenants with the help of this section)
When the obstruction or nuisance is merely anticipated.
Private disputes.

This section cannot be applied for above-said situations.

WHO CAN ORDER THE SAME?

Conditional order under section 133 can be passed by The District Magistrate, Sub-Divisional Magistrate or any Executive Magistrate.
Judicial Magistrate cannot pass a conditional order for removal of public nuisance

FAILURE TO COMPLY : Failure to comply with the direction under Section 133 will be punishable under Section 188 IPC.

SECTION 133 IN COMPARISON

Section 133 is more specific provision AND the order under is Conditional.
Section 144 is more general provision AND the order under is Absolute.
Section 133 is of remedial nature AND can only be resorted to when there is a question of removal of existing obstruction on a public place.
Section 147 is of preventive nature AND can be drawn up when there is no obstruction but there is an apprehension of interference of the right of user of any land or water and consequently apprehension of breach of peace.