Discuss and analyze Public Nuisance with legal provisions and effects thereof.
Introduction
Public nuisance is a common thing in our country. But most of us don’t know what is public nuisance where knowing legal provision against public nuisance is a dream. Even we are not concern about public nuisance except some ideal citizen of our country. In our daily life we do it because we don’t know it and also we don’t know punishment of this crime.
Public nuisance is not a rocket science or complex theory or something very complex. It’s very simple. It is happen every day in front of us. Even we do it. This is just a basic knowledge of behavior in public. Nuisance means something annoying, obnoxious, rude, unreasonable, too loud, too much of a pest. In very general terms, a nuisance is something that annoys – a wearing on the nerves by a persistent unpleasantness. (What is a Nuisance?)
Legally, the term nuisance is traditionally used in three ways:
- to describe an activity or condition that is harmful or annoying to others (e.g., indecent conduct, a rubbish heap or a smoking chimney)
- to describe the harm caused by the before-mentioned activity or condition (e.g., loud noises or objectionable odors)
- To describe a legal liability that arises from the combination of the two. However, the “interference” was not the result of a neighbor stealing land or trespassing on the land. Instead, it arose from activities taking place on another person’s land that affected the enjoyment of that land.
The law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (private nuisance) or with the rights of the public (public nuisance).
There are two type of nuisance. One is private nuisance and another is public nuisance. Most of the private nuisance is about land. Public nuisance is anything that annoys a community of people.
What is public nuisance?
Public nuisance is a broad concept, which concerns how the activity of one person (or business) affects the rights of another, for example, how noise from playing music interferes with another person is right to sleep.
Public nuisance is a class of common law offence and in common law offence public nuisance is the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.
Public nuisance is also known as a common nuisance. A public nuisance is one which inflicts damage, injury or inconvenience on all the (pubic) or on all members of a class who come within the sphere or neighborhood of its operation…. The question whether the number of persons affected is sufficient to constitute a class is one of fact. (Halsbury).
Actually public nuisance is something which disturb or annoys the enjoyment of land, area or region of a community. It includes everything, which disturbs the health and safety of a community of people. Even it can include many things that are partially safe or unhealthy and impartially unsafe or unhealthy. There are many types of acts, behavior and process that can be considered as public nuisance. For example, a person may decide to take his clothes off and bathe in a public creek within sight of his neighbors, causing a public nuisance. Another person may own a large, aggressive dog and allaw him to exit the house unleashed. In context of Bangladesh it can be smoking in a public area or park a car in side of a road where the place is not for parking, or sit with a product in a road etc.
Legal provisions of public nuisance
There are some legal provisions of public nuisance. Code of criminal procedure, 1898 describes about public nuisance at its chapter number 10. Essential parts related with legal provisions of public nuisance are given belaw (based on Bangladesh).
Application
| 132A. The provisions of this Chapter shall not apply to [a Metropolitan Area.]]
Conditional order for removal of nuisance that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public, or from any public place, or 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 that the construction of any building, or the disposal of any substance, as likely to occasion conflagration or explosion, should be prevented or stopped, or that any building, tent or structure, or any tree is in such condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighborhoods 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 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 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, to remove such obstruction or nuisance; or 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 to prevent or stop the erection of, or to remove, repair or support, such building, tent or structure; or to remove or support such tree; or to alter the disposal of such substance; or to fence such tank, well or excavation, as the case may be; or 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] at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided. (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 receptive purposes. Service or notification of order 134.(1) The order shall, if practicable, be served on the person against whom it is made, in manner herein provided for service of a summons. (2) If such order cannot be so served, it shall be notified by proclamation, published in such manner as the Government may by rule 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. All of these are the legal provision of public nuisance in Bangladesh. We must follow all of these rules to get a legal provision of public nuisance. |
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In UK, government passed a new licensing Act at 2003 to prevention of public nuisance. This license will give permission to sell alcohol, provide entertainment to people or sell hot food at late night. This new license will include[2] [following license types]:
· Sale of alcohol on or off the premises
· Registered Members Club
· Public Entertainment
· Late Night Refreshment
· Theatre
· Cinema
Before the Licensing Authority issues a license it must be, satisfied that applicant can comply with the four key objectives of the Act which are to deal with:
· Prevention of crime & disorder
· Public safety
· Protecting children from harm
· Prevention of public nuisance
When people will apply for this license, they have to mention about the process of their activity. Before making a decision on an application, the Licensing Authority must listen to the views of a number of other bodies called Responsible Authorities, as well as other interested parties such as local residents. They divide public nuisance in four types:
1. noise
2. odour
3. litter, waste and street fouling
4. light pollution
This division of public nuisance helps to protect public nuisance. They described every type these public nuisance in order to protect public nuisance and they give complete outline for every question can arise.
Comparison (BD Vs UK)
In Bangladesh, authority did not mentioned rules and regulation of public nuisance clearly. They just set some rules which in not very clear. In metropolitan area its depends on police ordinance. In addition, for outside of metropolitan area its totally depends on Magistrate. So prevention or break of public nuisance will totally depends on individual Magistrate wish. Even in Bangladesh, they did not specify and clearly described what is public nuisance. In addition, public nuisance rules and laws in Bangladesh are more than hundred years old. This law is not suitable for this modern world. In a word, Bangladesh does not have a clear and specific law, regulation, guideline about public nuisance.
The scenario is very different in UK, there act, regulation, guideline about public nuisance is totally modernized. They passed new license law at 2003 to prevent public nuisance. They have guide for application for public nuisance and public safety. They mentioned every issue related with public nuisance.
Though this part of Asia (Bangladesh, India, and Pakistan) inherits UK law but we did not update our laws, our regulation and we did not bother about this issue. Now a day is its becoming so much important in our country because of new educated generation of this nation. I hope our government will pass new act and regulation regarding public nuisance.
Case
Case-1(Unlawful Construction)
Sharif Nurul Ambia v. Bangladesh & others
Writ Petition No. 937/ 1995 (Unlawful Construction)
REASONING: The Petition was filed with legal assistance from Bangladesh Environmental Lawyers Association (BELA) by Mr. Sharif Nurul Ambia, Joint General Secretary of Jatiya Samajtantric Dal (JSD).
Fact : The Petition was moved by the Secretary General of BELA, Dr. Mohiuddin Farooque submitting that the DCC has undertaken the construction of the multi-storied building at the site earmarked for public car park in the RAJUK Master Plan unlawfully and without the latter’s approval and hence liable to be demolished. It was further submitted that the construction was continuing defying DoE’s finding that the said building would create a disruption to the environment of the area and the neighborhood depriving them the right to life, body and healthy environment against hazardous pollution and obstruction to air and light as being endangered by the unauthorized construction by the Respondents.
JUDGEMENT: Upon hearing the petitioner, the Court stayed the said construction till disposal of suit. The rule was ultimately disposed of against which an appeal is pending before the Appellate Division.
Case -2 (Radiated Milk)
Dr. Mohiuddin Farooque v. Bangladesh & others
Writ Petition No. 92/1996 (Radiated Milk)
REASONING: This petition was filed by Dr. Farooque as a potential consumer seeking redress against the failure of the authorities in taking effective and efficacious measures in dealing with the consignment of 125 metric tons Skimmed Milk Powder which was imported to Bangladesh and was found by the Atomic Energy Commission to be containing high concentration of radioactivity.
Fact: It was argued that the consumers must be protected against all unscrupulous activities aiming to release the said consignment of radiated milk to give meaning to the Constitutional right to life.
JUDGEMENT: The Judgment addressed some vital issues for the first time. While the authorities were directed to adopt necessary measures to ensure proper testing of milk, the scope of constitutional right to life was given a broader meaning. Right to environment was expressly recognized as being included in right to life.
Case-3 (Unregulated Operation of Brick Field)
Dr. Mohiuddin Farooque v. Bangladesh & others
Writ Petition No. 1252/1997 (Unregulated Operation of Brick Field)
REASONING: The indiscriminate operation of 19 brickfields in Senbag of Noakhali District in violation of applicable legal provisions and circular was brought to the notice of the High Court through the above petition. The petition filed by BELA on behalf of a local group called Senbag Thana Pollution Free Environment Committee accused the local administration for being indifferent towards the environmental havoc created by the brick furnaces. The management of the brickfields were not conducting their business with due regard to the legal provisions mandating in favor of sound environment and health state. Moreover, leasing agricultural land to brick fields in violation of existing land management laws and manual resulted in a tremendous pressure on the available stock of agriculture land, as after a given period the lands do not remain fit for agricultural purposes.
Fact: Upon hearing the petitioner BELA, the Court issued a Rule Nisi calling upon Secretary, Ministry of Land, Deputy Commissioner, Noakhali and DG, DoE to show cause “as to why the issuance and renewal of licenses permitting operations of 19 brick manufacturing kilns in the Senbag Thana under Noakhali District causing threat to the natural environment and health of the neighboring residents of the area should not be declared to have been done without any lawful authority and be directed to implement the circular.”
JUDGEMENT: The matter is now pending for hearing.
Effects
Because of public nuisance, we live more comfortable life than before. Though in our country we don’t bother too much about public nuisance but thing is changing now. Our new educated generation is more concern about public manner and public nuisance. They are trying to avoid doing anything considers as a public nuisance.
Conclusion
For a country like a Bangladesh, it is difficult to protect public nuisance. Most of the people of this country are not aware about this matter but it is changing now. I hope in near future our citizen’s will be more aware about their right and our government will introduce new law and regulation regarding public nuisance.
Bibliography
(2008, October). Retrieved from What is a Nuisance?: http://www.mrsc.org/subjects/legal/nuisances/nu-what.aspx
Code of criminal procedure.
(1886). Code of criminal procedure.
(1886). Code of criminal procedure.
(February 2005). Guide for Applicants on Public Nuisance & Public Safety .
Halsbury. (n.d.). Public Nuisance Definition. Retrieved from http://www.duhaime.org: http://www.duhaime.org/LegalDictionary/P/PublicNuisance.aspx
(2005). How does the new Law affect me? , . In A Guide for Licensees on the Prevention of Public Nuisance.
low, E. c. English criminal low. In common low offence (p. public nuisance).
Nuisance . (n.d.). Retrieved from http://en.wikipedia.org: http://en.wikipedia.org
(1966). In W. L. Prosser, Private Action for Public Nuisance (Vol. 52 Va. ).
Public Nuisance. (n.d.). Retrieved from http://www.duhaime.org : http://www.duhaime.org/LegalDictionary/P/PublicNuisance.aspx .
PublicNuisance. (n.d.). Retrieved from http://www.duhaime.org: http://www.duhaime.org/LegalDictionary/P/PublicNuisance.aspx .
(1979). Restatement (Second) of Torts.
the code of criminal procedure (Amendment) Act, 2009 (Act No. XXXII of 2009) (with effect from 1st November, 2007).
the code of criminal procedure (Amendment) Act, 2009 (Act No. XXXII of 2009) (with effect from 1st November, 2007).
What is a Nuisance? (n.d.). Retrieved from http://www.mrsc.org: http://www.mrsc.org/subjects/legal/nuisances/nu-what.aspx
[1] See section 51 of the code of criminal procedure (Amendment) Act, 2009 (Act No. XXXII of 2009) (with effect from 1st November, 2007)
[2] See Guide for Applicants on Public Nuisance & Public Safety February 2005