Suits on Public Nuisance and other matters Affecting the Public

When people live in a society, acts of one always affect the other. This article focusses on the procedure for the institution of suits on public nuisance and other matters Affecting the Public under Sections 91 and 93 of the Code of Civil Procedure, 1908.

Introduction

India is a country with a billion people living in an area of 3 million square kilometres. It means that two individual lives at a distance of less than 10 metres and this includes public roads and railways. When the population is so high, there is bound to be the noise of the traffic, garbage dumps on the road and dug up roads everywhere. The thing that adds up to this menace is the careless attitude of the people who prefer disturbing the lives of others at the cost of their effort to adhere to law and decency.

This led to the rise of the concept of nuisance and claims were brought before the courts for disposal of filth in the neighbourhood and for unnecessary and incessant honking of horns before a hospital.

Moreover, the concept of public charitable trusts have been heard by everyone and also their misuse. These trusts are created by people, entities or government for the welfare of the general public who may be of a specific community, locality or entire nation. For instance, religious and endowment trusts are established by religious groups or State governments for the promotion and propagation of religion.

This article shall deal with these two concepts of public rights and suit for their infringement under the CPC in two parts. The first part shall deal with public nuisance and suit for public nuisance under Section 91 of the CPC and Part II shall deal with Public Charities and suit for their misuse and enforcement under Section 92 of the Code.

Part I: Suits for Public Nuisance

Private Nuisance and Public Nuisance

The claims were private and taken by the individual affected by those acts. This is known as private nuisance. Basically, it is the basic conventional rule that everyone has the right to the complete and peaceful enjoyment of his property without interference from any third party. When an of a third party cause infringement of this peaceful possession, it amounts to private nuisance and action can be taken for claims by the affected person.

On the other hand, people also have absolute right over public places and public utilities such as roads, railways, parks, etc. When these places are affected, it amounts to public nuisance. The definition of public nuisance can be borrowed from Section 268 of the Indian Penal Code, 1860 since the CPC is silent on this aspect.

According to Section 268, any person who commits an unlawful act or omits to do a lawful act and by such commission or omission causes injury or annoyance to the people residing in the neighbourhood or any other general public who have reasonable expectation to exploit their right which is hindered by the offender is called to have caused public nuisance.

Public Nuisance under CPC

The issue of public nuisance is dealt under Section 91 of Part V of the Code. The provision gives right to sue any person who has caused a public nuisance in the society.

• Meaning of Public Nuisance

The term public nuisance has not been defined by the code but, however, it has already been explained above that it is defined under Section 268 of the Indian Penal Code which can be applied mutatis mutandis to the present provision. Thus, public nuisance simply means causing trouble, annoyance or disturbance to the public at large. However, Section 91 is much broader in terms than Section 268 of the IPC.

The marginal note to the provision states “public nuisance and other wrongful acts”. It means that the provision does not restrict itself to only public nuisances but also includes any other acts or omissions that may cause injury to the public at large. Generally accepted public nuisances are causing environment pollution by littering or disposal of waste in public places or noise pollution by vehicular horns and loud music, etc.

Besides these acts of public nuisance, other acts have also been considered as giving rise to a cause of action under Section 91. For instance, the courts have held slaughter of cattle in public places either normally or during festivals as affecting public tranquillity and raising cause of action under Section 91. However, the provision excludes lawful and necessary nuisance from being sued.

For instance, a noise made by train engines and aircraft or any hindrances caused due to the construction of public roads or yards, etc. Public nuisance caused because of acts undertaken in public interest and welfare is not actionable.

• Procedure to file Suit

According to Section 91, there are two methods in which a suit may be instituted against a person or entity for causing a public nuisance. Firstly, by the advocate general of the State and secondly, by way of class litigation filed by two or more persons of the affected place or genuinely interested in the redressal of public harm.

Initially, the Code allowed for a suit only by the advocate-general to ensure that suit with malicious intent are not filed to waste the time of the court. Advocate general was empowered to look into circumstances and decide whether a cause of action exists or not.

In 1976, the code was amended and two or more persons were allowed to move the court for public nuisance after obtaining permission from the advocate-general. This led to an extra burden on the advocate-general to look into every application and decide its authenticity.

The provision was again changed in 1999 and now, two or more persons can approach the court after obtaining the leave of the court to file the suit. The court looks into the genuineness of the claim raised and decides whether to allow the suit or not.

• Remedies for Public Nuisance

Section 91 acknowledges several remedies for public nuisance divided into two parts. Firstly, Section 91 (1) provides for certain civil remedies and then Section 91 (2) provides for other residuary remedies. Under civil remedies, the advocate-general or the plaintiff, as the case may be, may pray for a declaration, injunction and any other relief as the court considers appropriate.

Declaration signifies any order with which the court establishes the rights and liabilities of the parties. For instance, if a suit is filed against a company disposing sewage into the public river and the question arises whether people have a right over the public water. Any order passed by the court stating that the people have a right to use the public water is a declaration.

Further, an injunction is an order to direct a person to stop or do an act that will remedy the wrong done. For instance, order to stop disposing of waste into the public water is an order of injunction. Lastly, any other relief may include any compensation for the loss caused by public nuisance to the litigants or the people residing in the vicinity.

Besides civil remedies, Section 91 (2) protects the right to sue entitled under any other law than the CPC. Therefore, for one cause of public nuisance, a civil suit may be instituted, a criminal prosecution may be initiated under Section 268 and also writ petition may be filed for violation of the fundamental right to environment.

Part II: Suits for Public Charity

Private Charitable Trust and Public Charitable Trust

A trust is a fiduciary arraignment whereby one person known as the trustee holds certain assets or properties on behalf of the other known as the trust maker for the benefit of a third person known as the beneficiary. The trust maker gives clear instructions and there is a written agreement to utilise the properties of the trust for the benefits of the people mentioned as beneficiaries of the trust.

There are two types of trust, viz. private trust and public trust. When a person sets up a trust for the benefit of his family or certain private individuals or relatives, it is a private trust. On the other hand, when a philanthropic person or any entity creates a trust for the benefit of the general public and anyone meeting the criteria can avail of the benefit of the trust, it is called a public trust.

In Deoki Nandan v. Muralidhar[1], the court distinguished between the two trusts by stating that in private trusts, the beneficiaries are specified people such as employees of a company whereas in public trust the beneficiary is a fluctuating body of individuals. For instance, a trust created for the educational purposes of poor people.

Suit against Trust under CPC

• Meaning of trust

Section 92 of Part V of the Code deals with suits against public charities for any form of breach of trust. Section 92 allows suing of only public trusts either charitable or religious and not private charities which is regulated by the Indian Trust Act, 1882. In case of public trusts, the trust is made for a specific purpose or for a specific period and all the assets are required to be used for the benefit of the people to meet that purpose only.

Moreover, public trust should not utilize its funds for the benefit of the trustees or the members of the board and should not deny the benefit to any eligible beneficiary.

Public trusts are wholly maintained by the board of trustees and there is very less control of the trust maker who in most of the situation is the government and sometimes rich philanthropists. Thus there is an opportunity of mismanagement and breach of the purpose of the trust. Therefore, it is essential to allow legal action to be taken against such breach and mismanagement to allow that the purpose of the trust is duly met from time to time.

• Procedure to File Suit

According to Section 92 (1) of the Code, where there is some kind of deviation from the purposes of the trust or need for change in administration of the trust, the advocate-general of the State or two or more persons interested in the maintenance of the trust may file a suit against such breach of objects of the trust.

When the suit is filed by a class of persons aiming to ameliorate the management of the trust, it is essential that the leave of the court is obtained before instituting the suit.

• Remedies for Breach of Trust

The Code enlists several remedies that can be sought in a suit for breach of public trust under Section 92 (1) and (3). The remedies that are available to the advocate-general or the aggrieved persons are:

1. To remove a present trustee from the post for mismanagement.
2. To appoint a new trustee to either replace an old trustee or to supervise the present trustees.
3. To vest any asset or property of the trust in a trustee.
4. To direct a dismissed or retired trustee to transfer the possession of any trust property to the trust.
5. To direct the inspection of accounts of the trust and conduct inquiries.
6. To declare the proportion of trust property available for separate objects of the trust.
7. To authorize the sale, exchange or mortgage of any property in possession of the trust.
8. To a settle a claim or any scheme allowed by the trust to a beneficiary.
9. To change or modify the original objective for which the trust was created if the original objective has been fulfilled or become impossible to fulfil. For instance, a trust created with the objective of establishing four schools in a village. When the schools are constructed, the object is complete but the trust may have some assets left. In such cases, the civil court can be moved to alter the objects of the trust.

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References:

1. Dinshaw F. Mulla, the Key to Indian Practice: A Summary of the Code of Civil Procedure, 1908, (11^th 2015).
2. K. Takwani, Civil Procedure, (8^th ed. 2018).
3. C. Sarkar, Code of Civil Procedure, Vol. II, (12^th ed. 2017).

[1] Deoki Nandan v. Muralidhar, AIR 1957 SC 133.

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