Law and You >Procedural Laws > BNSS > Conditional Order for Removal of Nuisance (S. 152 to 162 BNSS)
Nuisance could be defined as unlawful interference in the peaceful enjoyment of one’s property, or any right associated with it. Nuisances may be divided into two main headings namely, (i) private nuisances and (ii) public nuisances. This division is not exhaustive, and to some extent overlap with each other. Private nuisance is actionable in civil Court as tort. The Public nuisance is punishable under Section 270 of the BNSS. A Civil suit may be filed for injunction or abatement against public nuisance by the Advocate General or by two or more persons who have obtained the consent of the Advocate General under Section 91 of the CPC. The civil and criminal remedy are concurrent and pursuit does not bar the other. Nuisances may be permanent, continuing, recurrent and temporary. There is immediate remedy for public nuisance under Section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). In this article, we shall discuss conditional order for removal of nuisance under Section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
S. 152 BNSS:
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 conflagration 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.
The purpose of this section is to prevent public nuisance, if a magistrate fails to take immediate recourse to section 152 BNSS, irreparable damage would be done to the public. It is intended to remove public nuisance and can be invoked in urgent cases because the nuisance can sometimes be fraught with potential danger requiring immediate action. This section empowers a magistrate to deal with specific public nuisance and it provides a summary remedy for their removal but the pre- requisite is that there must be an imminent danger to property and consequential nuisance to the public.
In Ram Avtar v. State Of U. P., AIR 1962 SC 1794 case, the appellants carried on the trade of auctioning vegetables in a private house. The noise caused by the auctioning caused discomfort to persons living in the locality. An order was passed under s. 133 of the Code of Criminal Procedure restraining auctioning vegetables in their house. The Supreme Court held that the order was not justified under s. 133 of the Code. Merely because the appellants carried on auctioning in connection with which the carts were brought, they could not be considered to have caused the obstruction. In a trade like auctioning which has to be carried on as necessary for the well being of the community some amount of noise has to be borne by the public. Section 133 was not intended to stop such trades merely because of the discomfort caused by the noise.
Section 152 BNSS enables a District Magistrate / Sub Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government to deal with public nuisances. This power can be exercised either on receipt of a police report or other information. Public nuisances which can be dealt with under this section fall under the following six categories
- Any unlawful obstruction or nuisance from any public place or from any way, river or channel, which is or may be lawfully used by the public.
- The conduct of any trade or occupation, or keeping of any goods or merchandise, is injurious to the health or physical comfort of the community.
- The construction of any building or disposal of any substance, as is likely to occasion conflagration or explosion.
- Any building, tent, structure, or tree which is likely to fall and thereby cause injury to persons.
- Any tank, well or excavation adjacent to any such way or public place.
- Any dangerous animal, which requires to be destroyed confined or otherwise disposed of.
When a proceeding under Section 152(1) BNSS is drawn up for alleged obstruction of public right, the Magistrate is to make two inquiries firstly to determine whether or not there exists any public right in respect of it and secondly whether or not there is obstruction of it by the public. These two inquiries cannot be made without complying with the requirement of Section 156 and 157 of the BNSS. If the party against whom such conditional order has been made denies the existence of the alleged public right, the Magistrate shall inquire that question by taking evidence of such objector. If on such enquiry the Magistrate finds that the evidence in support of the denial of the alleged right is reliable, the Magistrate shall stay the proceeding before him until the question of existence is decided by a competent court.
The area of operation in the Sanhita and the pollution laws in question are different with wholly different aims and objects; and though they alleviate nuisance that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side. While as noted above the provisions of Section 152 of the BNSS are in the nature of preventive measures, the provisions contained in the two Acts are not only curative but also preventive and penal. The provisions appear to be mutually exclusive and the question of one replacing the other does not arise.
In Lakshmi Cement vs State, 1994 CRILJ 3649 case, it was held that Section 133 CrPC (S. 152 BNSS) does not automatically or impliedly get repealed after the commencement of the Air (Prevention and Control of Pollution) Act, 1981. So proceedings under Section 133 CrPC (S. 152 BNSS) are not barred.
Remedies/Relief under Section 152 BNSS:
If the Magistrate is satisfied that the nuisance or obstruction exists, a conditional order is issued. This order may:
- Prohibit continuing the harmful activity immediately or within specified time
- Direct removal of such obstruction or nuisance.
- Prevent or stop the construction of such building, or to alter the disposal of such substance
- Require demolition or repair of unsafe structures, or cutting of trees etc.
- Order closure of a trade
- Restrict keeping of dangerous animals
Punishment under Section 152 BNSS:
The punishment for the conduct of offences concerning public nuisance is provided under sections 270 to 296 of the Bharatiya Nyaya Sanhita, 2023.
In cases that where the offences are not provided for, then under section 292 of the BNS, public nuisance is punishable with a fine that can extend up to Rs. 200. The remedy in the case of private nuisance is a civil suit.
S. 153 BNSS:
Service or Notification of Order:
(1) The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of summons.
(2) If such order cannot be so served, it shall be notified by proclamation published in such manner as the State Government may, by rules, direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.
Section 153 of the BNSS deals with the service or notification of an order issued under BNSS. It outlines how such an order, particularly one passed under Section 152 (conditional order for removal of nuisance), should be brought to the attention of the person against whom it is directed.
The order shall be served to the person against whom it is made in the manner provided for service of summons. If an order made under Section 153(1) BNSS, remains unserved, the same shall be notifies by proclamation, by publishing it in such a manner as is prescribed by the state government in this behalf and a copy of the same shall be stuck up at a place from where the information can be conveyed to such person against whom the order is made.
S. 154 BNSS:
Person to Whom Order is Addressed to Obey or Show Cause:
The person against whom such order is made shall—
(a) perform, within the time and in the manner specified in the order, the act directed thereby; or
(b) appear in accordance with such order and show cause against the same; and such appearance or hearing may be permitted through audio-video conferencing.
Section 154 of the BNSS deals with the person to whom an order is addressed to obey or show cause. It outlines the obligations of an individual against whom a magistrate has passed an order, specifically requiring them to either comply with the order or appear before the court to explain their reasons for not doing so.
The individual must either perform the act specified in the order within the prescribed time and manner, or appear before the magistrate and explain their reasons for not complying. The appearance or hearing may be permitted through audio-video conferencing.
S. 155 BNSS:
Penalty for Failure to Comply with Section 154:
If the person against whom an order is made under section 154 does not perform such act or appear and show cause, he shall be liable to the penalty specified in that behalf in section 223 of the Bharatiya Nyaya Sanhita, 2023, and the order shall be made absolute.
Section 155 of the BNSS deals with the consequences of failing to comply with an order issued under Section 152 or 154 of the BNSS. Specifically, it outlines that if a person doesn’t perform the act required by the order or doesn’t appear before the court to show cause for non-compliance, they become liable to the penalty prescribed in Section 223 of the Bharatiya Nyaya Sanhita, 2023. Furthermore, the court order under Section 155 BNSS becomes “absolute,” meaning it’s fully enforced, and the person is liable for the penalties specified.
Thus, Section 155 ensures that orders issued under the BNSS to address public nuisances are not treated lightly and that there are legal repercussions for non-compliance.
S. 156 BNSS:
Procedure Where Existence of Public Right is Denied:
(1) Where an order is made under section 152 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 157, inquire into the matter.
(2) 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 as laid down in section 157.
(3) A person who has, on being questioned by the Magistrate under sub-section (1), 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.
Section 156 of the BNSS outlines the procedure when a person denies the existence of a public right in a way, river, channel, or place, following an order to prevent obstruction, nuisance, or danger. Essentially, if someone challenges the public’s right to use a certain area, the Magistrate must investigate this denial before proceeding with further actions.
The section applies when a Magistrate issues an order under Section 152 BNSS to prevent an obstruction, nuisance, or danger on a public way, river, channel, or place. If the person against whom the order is made denies the existence of a public right in that area, the Magistrate must inquire into the matter. The Magistrate will examine whether there is reliable evidence to support the denial. If such evidence is found, the Magistrate must stay the proceedings until a competent court decides on the matter of the public right. If no reliable evidence is presented to support the denial, the Magistrate can proceed with the actions outlined in Section 157 of the BNSS.
If the person either denies the public right and provides reliable evidence or does not deny it, they cannot later raise the same issue in future proceedings.
S. 157 BNSS:
Procedure where Person against whom Order is Made under Section 152 Appears to Show Cause:
(1) If the person against whom an order under section 152 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.
(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification.
(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case:
Provided that the proceedings under this section shall be completed, as soon as possible, within a period of ninety days, which may be extended for the reasons to be recorded in writing, to one hundred and twenty days.
This Section allows a person to contest an order made under Section 152 BNSS before a Magistrate through a proper legal process.
Section 157 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the process followed when a person challenges an order issued under Section 152 BNSS regarding temporary measures to prevent nuisance or danger.
If a person challenges an order made under Section 152, the Magistrate must conduct an inquiry similar to a summons-case trial. The Magistrate may either confirm the order as it is, modify it, or reject it based on the evidence presented. The entire process should be completed within 90 days, extendable to 120 days with recorded reasons. This ensures a fair hearing while preventing undue delays in resolving public nuisance matters.
S. 158 BNSS:
Power of Magistrate to Direct Local Investigation and Examination of an Expert:
The Magistrate may, for the purposes of an inquiry under section 156 or section 157—
(a) direct a local investigation to be made by such person as he thinks fit; or
(b) summon and examine an expert.
The purpose of these actions is to assist the Magistrate in making a decision regarding the issue under inquiry, specifically in cases involving public nuisances or obstructions.
Section 158 of the BNSS, empowers a Magistrate to direct a local investigation or summon an expert for the purposes of an inquiry under sections 156 or 157 BNSS. This section allows the Magistrate to gather additional information relevant to the inquiry by either sending someone to inspect the relevant area or by consulting with an expert.
The Magistrate can appoint a person (e.g., a police officer, revenue official, or other suitable individual) to conduct a local investigation. This involves going to the location in question, gathering information, and reporting back to the Magistrate. The Magistrate can also summon and examine an expert witness. This could be someone with specialized knowledge relevant to the inquiry, such as an engineer, doctor, or surveyor.
S. 159 BNSS:
Power of Magistrate to Furnish Written Instructions, etc.:
(1) Where the Magistrate directs a local investigation by any person under section 158, the Magistrate may—
(a) furnish such person with such written instructions as may seem necessary for his guidance;
(b) declare by whom the whole or any part of the necessary expenses of the local investigation shall be paid.
(2) The report of such person may be read as evidence in the case.
(3) Where the Magistrate summons and examines an expert under section 158, the Magistrate may direct by whom the costs of such summoning and examination shall be paid.
Section 159 of the BNSS deals with the power of a Magistrate to furnish written instructions to any police officer or public servant within their jurisdiction. Additionally, it empowers the Magistrate to direct who will bear the costs associated with summoning and examining an expert under Section 158. Similarly, if an expert is summoned and examined under Section 158 BNSS, the Magistrate can decide who will pay the summoning and examination costs.
S. 160 BNSS:
Procedure on Order Being Made Absolute and Consequences of Disobedience:
(1) When an order has been made absolute under section 155 or section 157, 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 the time to be fixed in the notice, and inform him that, in case of disobedience, he shall be liable to the penalty provided by section 223 of the Bharatiya Nyaya Sanhita, 2023.
(2) 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, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate’s local jurisdiction, and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found.
(3) No suit shall lie in respect of anything done in good faith under this section.
Section 160 of the BNSS deals with the procedure when an order made absolute under section 155 or section 157 BNSS is disobeyed. It outlines the steps a Magistrate must take and the consequences for failing to comply with the order.
When an order is made absolute, the Magistrate must inform the person against whom the order was issued. This notice will specify the act required to be performed and the time within which it must be done. The notice will also warn of the penalty under section 223 of the Bharatiya Nyaya Sanhita, 2023 for disobedience.
If the person fails to comply with the order within the specified time, the Magistrate can have the act performed at the person’s expense. The cost of performing the act can be recovered by selling any property removed by the Magistrate’s order or by distress and sale of other movable property of the person.
Section 160(3) clarifies that no suit can be filed against any action taken in good faith under this section.
S. 161 BNSS:
Injunction Pending Inquiry:
(1) If a Magistrate making an order under section 152 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.
(2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury.
(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section.
Section 161 of the BNSS deals with injunctions pending inquiry in cases of public nuisance or danger. It allows a magistrate to issue an order (injunction) to prevent or mitigate an imminent danger or injury to the public while an inquiry is ongoing.
If a magistrate, while investigating a public nuisance under section 152 BNSS, believes immediate action is necessary to prevent serious harm, they can issue an order (injunction) to the person responsible. This injunction aims to stop or prevent the danger or injury until the matter is fully resolved through the inquiry. If the person doesn’t comply with the injunction, the magistrate can take necessary steps, including using force, to ensure compliance.
Actions taken in good faith by the magistrate to prevent public danger under this section are protected from lawsuits,
S. 162 BNSS:
Magistrate may Prohibit Repetition or Continuance of Public Nuisance:
A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate or Deputy Commissioner of Police empowered by the State Government or the District Magistrate in this behalf, may order any person not to repeat or continue a public nuisance, as defined in the Bharatiya Nyaya Sanhita, 2023, or any special or local law.
Section 162 of the BNSS empowers a Magistrate to prohibit the repetition or continuance of a public nuisance. This section allows a Magistrate to issue an order to prevent a person from continuing or repeating a public nuisance, as defined in the Indian Penal Code or any other relevant law.
Section 62 BNSS specifically addresses situations involving public nuisance, which is an act that affects the rights of the public or a section of the public, causing inconvenience or annoyance.
The aim of the section is to prevent harm, disturbance, or annoyance to the public by stopping the continuation or repetition of the nuisance-causing activity.
Conclusion:
The provision for issuing a Conditional Order for Removal of Nuisance under the BNSS underscores the State’s commitment to maintaining public order, health, and safety. By empowering magistrates to act swiftly and preventively, this mechanism balances administrative efficiency with due process. While ensuring that public nuisances are addressed before they escalate, it also provides individuals an opportunity to be heard and present their case. As part of the BNSS, this provision reinforces the importance of civic responsibility and the role of the law in safeguarding community welfare.