SECTION 268 OF IPC: PUBLIC NUISANCE

Public nuisance- 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 vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who may have occasion to use any public
right.

Stephen defined nuisance to be “anything done to the hurt or annoyance of the lands, tenements
of others not amounting to trespass.

According to Salmond, “the wrong of nuisance consists in causing or allowing without lawful
justification the escape of any deleterious thing from his land or from elsewhere into land in
possession of the plaintiff, e.g. water, smoke, fumes, gas, noise, heat, vibration, electricity,
disease, germs, animals”.

In general we can say that Nuisance is an act that is illegal because it interferes with the rights of
the public generally. For example, if someone for his own purpose obstructs the public road by
using heavy vehicle, thereby causes annoyance to the general public. Pollution which causes
environmental damage or injury to land (as opposed to the public at large) may also give rise to
claims for public nuisance.

Section 290 of IPC- Punishment for public nuisance in cases not otherwise provided for.—
whoever commits a public nuisance in any case not otherwise punishable by this Code, shall be
punished with fine which may extend to two hundred rupees.

BACKGROUND

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. 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. The
section 268 of IPC provides rights to an individual to enjoy their property without any
disturbance or annoyance.

Generally, nuisances cannot be justified on the ground of necessity, pecuniary interest,

INTERPRETATION

In the case of “Dwarika Prosad vs. Dr. B.K Roy Choudhury 1”, the petitioners have a shop in
certain premises where they make ice-cream. The ice-cream is made in a refrigerator. It is said
that the noise created by the working of the refrigerator constitutes a public nuisance. The
justification that was given by petitioner is that noise created in the process of making ice-cream
does not constitute public nuisance. The Respondent pleads that a number of persons living
adjacent to the premises where this business is carried on are disturbed by the noise and that
therefore that there was a public nuisance . Here in the case concerned, court said that if the
conduct of any business or trade is injurious to the health or physical comfort of the community,
and that in consequence such trade or occupation should be prohibited. Keeping in mind Section
268 of IPC, any act or illegal omission which causes annoyance to the public or to the people in
general who dwell or occupy property in the vicinity will constitute public nuisance. The word
Public or vicinity clearly indicates that there can be no claim for nuisance unless you prove that
general population gets affected by the actions of the petitioners.  In this case there is really no
evidence to show that anybody was affected by the sound of this machine except some persons
living in the same house. The noise constitutes a nuisance to the residents of the building whose
flats are adjacent to the place where the machine is running. Court does not even find that the
noise of the machine constitutes a nuisance to all the residents of the building; it constitutes a

1
Dwarika Prosad and Ors. Vs. Dr. B.K. Roy Choudhury and Ors. 1950 CrLj 1315 Cal.
nuisance to the residents of the building whose flats are adjacent to the place where the machine
is running. So this may raise case for private nuisance but case under section 268 is not
maintainable.

In the case of “S.Venkataramaiah vs. State of Karnataka2” the petitioner said something bad to
respondent in the office of Land tribunal during ongoing proceedings. The question is whether
the utterance of bad words among the private parties constitute public nuisance whether the
utterance of bad words among the private parties constitute public nuisance and punishable under
section 290 of IPC. The answer is no because the words uttered by the petitioner was directed
towards only respondent not anyone else. It has been clearly stated in section 268 that in order to
amount to a public nuisance, a person must have acted in a manner may cause any common
injury or annoyance to the people in general, who have rights in respect to that locality or
vicinity. Here saying bad about respondent did not cause any injury or annoyance to public at
large, so the claim for public nuisance is not sustainable.

In “Sheo Narain vs. A. N Rastogi case3”, the petitioner did not pay the taxes, so he was convicted
by Nyaya panchayat for public nuisance. The court in this case stated that nonpayment of taxes
may result in injury to the revenue of the panchayat but did not constitute public nuisance.
Nonpayment of tax by a person in no stretch of imagination is brought within the purview of
“public nuisance”. An omission to pay the taxes did not cause any common injury, danger or
annoyance to the public. The public is a body different from the Panchayat, and the one has
nothing to do with the other.

In the case of “S. Venkataramaiah vs. State4”, the act of the respondent leads to stagnation of
water leading to breeding of mosquitoes etc. giving rise to offensive smell and causing to people
living in that locality or vicinity danger to their health and annoyance and threatening also such
injury and annoyance to the persons who would of necessity compelled to use that part of road.
Therefore this is a clear cut case of public nuisance because the act of respondent is causing
annoyance to general population.

2
S. Venkataramaiah vs. State of Karnataka, 1989 CrLj 789 kar.
3
Sheo Narain Lal vs. A. N. Rastogi, 1964(1) CrLj 24: AIR 1964 All 16.
4
S. Venkataramaiah vs. State, 1989 CrLj 789 Kar
In the case of “M.C Mehta vs. UOI5”, The Petitioner filed a writ petition in the Supreme Court
for the prevention of nuisance caused by the pollution of the River Ganga by tanneries and soap
factories on the banks of the river, at Kanpur. The nuisance caused by the pollution of the river
Ganga was a public nuisance, which was widespread in range and indiscriminate in its effect and
creates unhealthy environment and annoyance to community at large. So the court in this case,
prevented Industries from disposing off domestic and industrial waste and effluents in the Ganga
River.

“Village of Wilsonville v. SCA Services”, is a case in which the plaintiffs, a village and other
governmental bodies, alleged that the defendant's hazardous chemical landfill was a public
nuisance. The plaintiffs sought to enjoin the operations of the landfill and require removal of
toxic waste and contaminated soil. The court found that there was a substantial danger of
groundwater contamination and explosions from chemical reactions. Although the damages
were prospective, the nuisance already was present. Therefore, the court granted an injunction
and ordered a site clean-up.

CONCLUSION

This study concludes that the general rule is that a person may use his land or personal property
in any manner he sees fit. However, this rule is subject to certain restrictions. The owner must
use his property in a reasonable manner so that it will not infringe anyone’s right . Public
nuisance arises whenever a person uses his property to cause material injury or annoyance to a
reasonable neighbor. Odors, dust, smoke, other airborne pollutants, water pollutants and
hazardous substances have all been held to be nuisance. Under public nuisance law, the plaintiff
must prove that the defendant’s activity unreasonably interfered with the use or enjoyment of a
protected interest and caused the plaintiff substantial harm. The unreasonableness of an act or
omission is established by its social utility and the harm it causes. Public nuisance law protects
from interference a "right common to the general public." Plaintiffs may bring a public nuisance
action if there are damages, or inconvenience to the public. A state may assert a public nuisance
action as an exercise of its police powers the typical situation. A private citizen may bring a

5
1987 AIR 1086, 1987 SCR (1) 819
public nuisance action only if he or she can show that he or she has suffered from a harm that can
be distinguished from that suffered by the members of the general public.

The existing legal provisions are inadequate to control the enormous Problems of environmental
pollution of various types in the country. Therefore, the judiciary has to play a more active and
constructive role this has become all the more essential in view of the lack of awareness in the
masses of the pollution problems; lack of planning and the plenty of the industries and the local
bodies in this regard. New jurisprudential techniques have to be devised to deal adequately with
the problems of pollution control and protection of environment. Government must initiate the
programmes to create public awareness with regard to relation between human rights and
environmental protection and also related laws.