CrPC Section 133: Power to Remove Public Nuisance

Section 133 to 143 of CRPC specifically deals with the Removal of any existing Nuisance in the Public place. 

It is one of the most powerful tools in the hands of common public for removal of the danger arising or hanging on their heads, due to such nuisance.

Lack of awareness about this law & its technicalities have resulted into less utilization of this powerful constitutional method for common benefit.

Today we shall discuss the basic framework of this law.

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An application can be made under this section to a District Magistrate for the removal of a public nuisance. 

Once application is received from the petitioner, magistrate orders a preliminary inquiry. 

After satisfying himself with the initial material of the case through preliminary inquiry, and if required, after taking evidence on oath, magistrate issues an Order (an Order of Conditional in nature) (also known as Conditional Order) directing the opposite party to either remove such obstruction/nuisance, OR to appear before himself at a time and place to be fixed by the order, and show cause, why the order should not be made absolute (i.e. Conditional order converted into the Final Order asking to remove the nuisance, failing which legal action shall be taken).

In case opposite party decides to appear before the magistrate, The first question magistrate shall ask him is to whether he denies the existence of any ‘Public Right’ in respect of the place of nuisance, and if he denies so, the Magistrate shall, inquire into the matter. If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed to give final order. 

A person who has, on being questioned by the Magistrate, failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.

When final order has been made, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Indian Penal Code (45 of 1860). 

If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it from the accused.

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Term ‘Nuisance’ is not capable of an exact definition under the law and broadly means an act or omission which causes injury, danger or annoyance to common public.

An obstruction or nuisance on a private property cannot be interfered with. 

For Section 133 to be applicable, establishing Public right is important. Danger should be to public at large and not to any single individual or to a single family.

Section 133 CrPC provide a speedy and summary remedy in case of an urgent situation where there is imminent danger to public interest or public health. 

In all other cases, the parties should be referred to the remedy under the ordinary law of land.

Section 133 applies only to existing and not to potential nuisances i.e., to what may become a nuisance in the future, nor does it apply when the nuisance has ceased.

Section 133 is of a remedial nature whereas provisions of other similar laws are mostly preventive.

It is important for the district magistrate to pass “Conditional Order” giving opportunity to opposite party to either show cause or execute the order of the magistrate.

Final Order of demolition of dangerous/dilapidated property should be given only in those cases only where providing support or repairs is not likely to serve the object of preventing injury to other persons.

To bring in application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. 

The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential nuisances, and on the other hand applies when the nuisance is in existence.

Some of the cases I could find related to CRPC Section 133 on the internet:

Nuisance of a Diaplated wall:

https://indiankanoon.org/doc/570222/

Nuisance of Barking dogs:

https://indiankanoon.org/doc/148237/

Illegal fishing:

http://arunachal24.in/arunachal-illegal-fishing-forest-destruction-hunting-prohibited-in-papumpare/

Prohibition on forest destruction:

https://arunachaltimes.in/index.php/2020/11/27/prohibitory-order-issued-2/

Ban On Spas:

https://m.timesofindia.com/city/noida/18-mths-on-sealed-spas-back-in-biz/articleshow/80697484.cms

Removal of Agitating Farmers:

https://www.livemint.com/news/india/hry-villagers-blocks-jind-chandigarh-highway-in-support-of-farmers-protest-11611883863211.html

*Palm tree leaning on neighbor's ground, is not private but public nuisance. Leaning of trees towards the roof of the neighbor or a dilapidated house abutting a neighbor's house if endangers human life of the inmates of the neighbor can bring an action before a Magistrate. [Jayakrishna Panigrahi And Ors. vs Hrusikesh Panda]

*Sub-Divisional Magistrates have jurisdiction to pass orders under Sec. 133, Cr.P.C. to remove public nuisance, notwithstanding the fact that Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 have come into force. Because, Water and Air Act, it is clear that the object is to take preventive measures. Under this Act, remedial measures are not available. [In the case of Harihar Polyfiber]

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Hope this gives you all a basic idea about this Law.

Kindly excuse me for any grammatical error or error in the law interpretation.

‘Know the Law India’ is a personal blog from a law enthusiast. My aim is to promote, build confidence & create awareness about various Constitutional Methods in the society to solve the general public problems.

Do share your feedback and more reference if any on this subject matter for common benefit of all.

Source of Information:

https://indiankanoon.org/doc/983382/

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Disclaimer:

These guides are not legal advice, nor a substitute for a lawyer. These articles are provided freely as general guides for legal awareness in the Society. Laws are updated/amended regularly by concerned authorities. Please check for the latest & updated laws with your legal advisor.