A public nuisance - a drain overflowing into the street, an obstruction of a public way, unbearable noise, the dumping of waste, a dangerous structure - is dealt with first by a complaint to the municipality or the police, who can order it abated. If that fails, the magistrate can act on a complaint, and under the criminal procedure the magistrate may order the removal of the nuisance - a power now in Section 152 BNSS 2023 (formerly Section 133 CrPC). Where the nuisance also injures a private right, the affected person can bring a civil suit for an injunction and damages.
Before you start
- A clear description of the nuisance, the place, and how long it has gone on.
- Photographs and videos with the date visible, and the measurement or extent of the obstruction or the overflow.
- The names or at least the identification of the people causing it, where known.
- Copies of any earlier complaint to the municipality, the police or the offender.
- For a health angle, a doctor's certificate, and for a property angle, the record of what right of yours is affected.
Steps
- Decide whether it is public or private. A nuisance that affects the public at large is public; one that injures your right over your own land or your own health more than the public's is private, or both. The route changes with the answer.
- Complain to the municipality. The corporation or municipality has powers under its own Act to abate a nuisance - to close a drain, pull down a dangerous structure, clear an encroachment or stop a trade that pollutes - and its sanitary and building staff act on a written complaint. File it with the ward or borough office and keep the acknowledgement.
- Complain to the police. Where the nuisance is an obstruction, a public gathering that threatens the peace, or a dangerous structure likely to collapse, the police can act under their own powers and register a report if an offence is disclosed. Keep the copy of the complaint.
- Approach the magistrate. If the nuisance persists, a complaint can be made before the magistrate, who may pass a conditional order requiring the person causing the nuisance to remove it or to appear and show cause, and on default make the order absolute. This power to order removal of a public nuisance is Section 152 BNSS 2023 (formerly Section 133 CrPC).
- Bring a civil suit where a private right is affected. Where the nuisance injures your right as well as the public's, a suit for a permanent injunction and damages lies, and an interim injunction can be sought to stop it while the suit is pending. Where the injury is only to the public and not to a private right, a suit for public nuisance needs the consent of the Advocate General or two or more residents, under Section 91 of the Code of Civil Procedure.
- Collect the evidence as you go. Photographs, complaints, notices and witnesses kept from the beginning decide both the criminal and the civil route.
Documents to keep
- The written complaints to the municipality and the police, with acknowledgements.
- Dated photographs and video of the nuisance over time.
- The health records and any doctor's certificate.
- The property papers and the survey or plan showing your right and the location.
- The magistrate's order, or the plaint in the civil suit, with the injunction order if obtained.
What goes wrong
The trap is choosing the wrong forum. A complaint about a drain or an encroachment that goes first to the police may be sent back with a direction to the municipality, and vice versa, so file with the body that actually has the power to abate the nuisance and keep proof of both. The second trap is letting the nuisance become old before acting: delay weakens an injunction because the court asks why the complainant tolerated it, and a continuing nuisance is still a nuisance but the interim relief is harder to get. In the magistrate's route, a complaint that describes the nuisance vaguely, or names the wrong person as the one causing it, is dismissed, and the person must be shown to be doing the act that constitutes the nuisance. Where the structure is dangerous, the municipal route acts faster than either the police or the court. If the nuisance is by a neighbour and damages your property, the civil suit and the injunction are usually the lasting remedy; if the same act is also an offence, the criminal route runs alongside but does not by itself compensate you. For the suit and the injunction our civil litigation and property law teams are the right desks, and the civil litigation formats help frame the pleadings. Contact us with the photographs and the previous complaints.
Common questions
Is noise from a neighbour a public nuisance?
Noise from a trade or an event that disturbs a whole locality is a public nuisance and can go to the municipality and the magistrate. Noise from one flat into the next may be a private nuisance, remedied by a suit, unless a licence condition or a court order also covers it.
Can the magistrate order the structure to be removed?
Yes. On a complaint, the magistrate may pass a conditional order to remove or abate a nuisance of a public kind, including a dangerous structure or a drain, and make it absolute if the person does not comply or show cause. The power is Section 152 BNSS 2023 (formerly Section 133 CrPC).
What if the municipality does nothing?
Keep the complaint and the acknowledgement, then escalate through the ward and borough channels, and move the magistrate or the civil court. Persistent inaction by a public body can itself be challenged on a writ.
Do I need to suffer a special loss to sue?
To sue on your own for a public nuisance you must show a special injury to a private right beyond what the public suffers. If you cannot, the suit for the public nuisance must be brought under Section 91 of the Code of Civil Procedure with the Advocate General's consent or by two or more residents.
FileX Advocates & Legal Consultants, Kolkata, files nuisance complaints before the magistrate and injunction suits before the civil courts. Call +91 7439811422 or WhatsApp us for a free first consultation.