Section 98(1) (a) of the Code refers to a place. In other words, the section permits the court to make certain orders if the court is satisfied that any unlawful obstruction or nuisance should be removed from anyway, harbour, lake, river or channel which is or may be lawfully used by the public or from any public place. Public element is the basis of this section.
It is useful to refer to the judgment in Sandrasagara v Sinnatamby. In this case, Hindu Mukkwas (A caste in the Tamil community) refused to permit the Christian Mukkwas to draw water from a well that had been used for several years and built a fence around the well. A riot took place and the fence was pulled down and the Hindu Mukkwas re-erected the fence.
An application was made under section 105 (corresponding section to section 98 of the present code), for conditional order. The learned Magistrate held that the well was a public well and made a conditional order directing the Hindus Mukkwas to bring down the fence. An appeal was tendered against this order.
At the hearing of the appeal, Jayawardene A.J. considered several matters including modes of acquisition of rights by the public. He held that there are three ways through which the public could acquire rights. (a) by grant executed according to law (b) by immemorial user (c) by dedication otherwise than by deed. He went on to hold that the mode of dedication otherwise than by deed was an English principle which was initially recognised in Ceylon in 1900. (See Pullenayagam v Fernando, but that the question arises whether public could acquire rights in terms of this method. (Tissera v Fraser. He said that the third mode was not something that was recognised the Roman – Dutch principles and that accordingly the third mode does not become part and parcel of the law of Ceylon.
It was held that it is essential in a matter falling under this section that the placed concerned is a public place, See section 98 (4) of the Code). On this basis the learned judge allowed the appeal as the respondent had not adduced any evidence regarding the public nature of the place. However, this judgment cannot be taken as fully correct since the first limb of section 98(1) (a) does not limit itself to a place only but refers to the right of the public to use the several types of places referred to therein. If the right complaint hearing was a common right which was common to the public, it is our view that an order ought to have been made in this case on the basis of the well being a place that is lawfully used by the public. (See also the decision was Muthithiah v Meera Meydeen.
In Saram v Senevirathne, an important decision. Here the accused was the proprietor of an oil store wear coorporing was carried on. The notice created by the constant hammering affected the whole neighbourhood. In this case the question was whether the nuisance which only affected the neighbourhood not the public in general could have been the subject matter in an action under this section. It was held that such an action would fail within the scope of the section since the danger was common to a lot of people.
The nuisance or the obstruction must take place either in a public place or in any category of places referred to in the section that is currently used by the public or which may be used by the public. The right of the public to use such place is a matter of evidence (see Don Andris v Don Manuel. Since the public element is the basis of Section 98 (1) (a) , a court cannot make an order under this section if the place is not a public one or where there is no public element as regards the way, habour, lake, river or channel.
Section 98 (1) (b) provides for the situations where an order could be made regarding the continuance of any trade or occupation and keeping of any goods or merchandise. The main basis upon which orders could be made under this sub section is that the trade or occupation or the keeping of the goods or merchandise would be injurious to the health or physical discomfort to the community.
The injury or discomfort to the community would be the main aspect for consideration in an application under this subsection. The term ‘community’ in this section cannot be given a restricted meaning specially in the context of the pollution that takes place in todays’ society. Relatively smaller groups of people could get affected by the actions of others.
In these circumstances, it is best to give the widest possible interpretation to the term ‘community’ in this section. Carder Saibo v Branha is another relevant case for consideration by all courts dealing with an application under this subsection. In this case, it was held that in making an order under this subsection, the Magistrate must specify the particular trade or occupation and the place that is carried on, and that it has been made to appear to the Magistrate Court that the trade is injurious to public health or comfort for causes stated. It must also stated that applications under this subsection have increased especially in view of the several industries that have come up in recent times.
Section 98 (1) (c) deals with the restriction of construction of any building or the disposal of any substance which is likely to result in conflagration or explosion. Section 98(1) (d) deals with dangerous buildings and trees while section 98(1) e refers to prevention of danger to the public from any unprotected tank, well or excavation.
Functions of the Magistrate’s Court
Once the information is received by the Magistrate’s Court section 98 (1) requires the Magistrate to satisfy himself regarding the contents of the application. The Magistrate has discretion in deciding whether evidence should be obtained or not. Sometimes, the Magistrate may opt to act on the affidavits filed by the complainant and proceed to make an order under section 98 without calling for evidence on the matter. On the other hand, the Magistrate could also call for oral evidence before any order is made.
The initial question that the court has to be satisfied is the question that the matter complained of amounts to a public nuisance. Once the court is satisfied regarding this aspect, it must then pay attention to the matters set out in the application to Court. Thereafter, the Court must decide whether the obstruction should be removed or not. After hearing the complainants and their evidence wherever he deems such evidence necessary, the Magistrate could either refuse to issue a conditional order or if satisfied regarding the case of the complainant issue a conditional order as set out in section 98(1).
Once the conditional order is made in terms of section 99 of the Code, it has to be served on the respondent Section 98 (2) states that any person on whom such an order has been served may appear before such court before the expiration of the time stated in that order and move to vacate the order or modify it. This section very clearly shows that the respondent has options available to him when the order is made. He could either comply with the order or act under section 98(2). This is confirmed in section 100 of the Code too.
Once the conditional order is served on the respondent and if he fails to comply with the same and also does not under section 98(2) and apply for the modification of the order or to set it aside, he becomes liable to face the penalty set out in section 185 of the Penal Code. A prosecution under this section can take place only with the sanction of the Attorney General or on the complaint of the public servant.
If the respondent appears on the nominated day or before, and moves to have the order set aside or modified, the Magistrate is required to take evidence in the matter, (Section 101 of the Code). Until recently, there was some degree of confusion as to which party should commence leading the evidence in that occasion. There were some instances where the judges called upon the complainant to lead evidence and in certain cases the respondent was asked to lead evidence.
This confusion was resolved in a later case of Elal Jayantha v OIC Panadura where it was held that the burden of adducing evidence first, is with the party which has moved the court to set aside or modify the conditional order. Accordingly, the respondent will have to demonstrate through evidence that the conditional order should be set aside or modified. If the respondent is unable to discharge this burden, the Court would make the earlier order absolute.
Once the order is made absolute, the court would grant time to the respondent to perform any act that is contained in the order absolute. If he fails to do so he would face the same consequences as before (Penalty under section 100 of the Code). This order made under section 101 of the Code is required to be served on the respondent. Section 103 of the Code authorises the court to have the order enforced by causing it to be performed. The cost of such enforcement can be recovered by the sale of any building, goods or other property removed by his order or by the distress or the sale of any movable property within or outside the jurisdiction of the Magistrate’s Court. If the property is outside the jurisdiction of the court making the order under section 101, the order shall authorise the attachment and sale of such property when endorsed by the Magistrate within the local limits of whose jurisdiction the property may be attached or found. As decided in Fernando v Cooray, orders made under section 101 are appealable.
Injunctions by the Magistrate’s Court
The term ‘injunction’ is generally used in the context of civil litigation. An injunction is a restraining order issued by a court restraining the defendant in a civil case from the commission or continuance of a civil wrong. Section 54 of the Judicature Act of 1978 outlines the jurisdiction to grant injunctions whilst section 662 – 666 of the Civil Procedure Code, sets out the procedure in granting injunctions. Hence the jurisdiction conferred on a Magistrate’s Court under section 104 of the Code is an extremely special one.
This section empowers a Magistrate exercising power under section 98 of the Code to issue injunctions where the Magistrate considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public. If the person against whom such an injunction is issued does not obey the order, the Magistrate can make an appropriate order to obviate such danger or to prevent such an injury.
Section 106 of the Code, empowers the Magistrate to issue absolute order at the commencement of a case. This is done in extreme circumstances where the Magistrate is of the opinion that immediate prevention or speedy remedy is desirable. In such cases, the Magistrate may make a written order stating the facts of the case and directing the respondent to do or not to do certain acts as described in section 106. In terms of section 106(5), such an order will remain in force for a period of 14 days, unless in cases of danger to human life, health or safety or a likelihood of a riot or an affray, the Minister by notification in the Gazette otherwise directs.
Defences for respondent
The two chief defences to an action for nuisance are (1) statutory authority, and (2) prescription. As regards the former, a nuisance may be authorised by statute if the enterprise is in the public interest. Statutory authority will not, however, protect an unavoidable nuisance. If a statute imposes any restriction, it must be obeyed. If a nuisance is prohibited by law, it cannot be performed. As regards defence of prescription, there are authorities which say that a right to commit a nuisance can never be acquired by prescription.
The following are some of the defences that may be urged by a respondent under section 101 of the Code of Criminal Procedure Act;
(a) That he believed in good faith that the place concerned is not a public place.
This defence can be raised in respect of situations falling under section 98 (1) (a).
(b). That the act complained of was an act authorised by law.
(c) That the nuisance complained was done to protect the defendant from an extraordinary danger.
(d) That in fact there is no public nuisance
(e) That the respondent holds a valid environmental protection licence issued by the CEA.
The respondent may also point out that the material submitted by the complainants is inadequate to hold that there is any violation. Moreover the respondent could also raise objections of a technical nature, objecting to the admissibility of affidavits or the hearsay aspects of such affidavits if the affidavits do contain such material. In the case of Forest v Leefe, the respondent took up the position that he had conducted the business for a long period of time and pleaded such long period as a defence. This was rejected by the court which held that a person cannot by long continuance of his practice acquire a right to carry on business in such a way as to be a public nuisance.
Environmental protection and public nuisance actions
Prior to the enactment of the National Environmental Act of 1980 as amended, the provisions that dealt with the course of action available in the case of a pollution of the environment was contained in the Code of Criminal Procedure Act No.15 of 1979. Even though these provisions were not specifically identified as provisions relating to the protection of environment, they were made use of to curtail and restrict violations relating to environmental pollution. Even today these provisions are operational and are being used to complain to court about public nuisances.
In Jayawardene v Akmeenana Pradeshya Sabha, it was held that the issue of a licence does not have any legal recognition if the licensee continues to violate the conditions in the licence. The essence of this judgment appears to be that a proceeding under section 98 of the Code could proceed even in an instance; the respondent is issued with a licence under the National Environmental Act, if the licensee is found to have acted in breach of the conditions. In the earlier Sri Lankan case of Marshal v Gunaratne Unnanse et.al, it was stated that a permit under the Police Ordinance was no defence to a prosecution for public nuisance under the Penal Code.
Conclusion
The following key points should be borne in mind both by the Magistrate’s Court and the Counsel in public nuisance cases in discharging their functions.
An application to invoke the jurisdiction under section 98 of the Code of Criminal Procedure Act may be made either by way of private information or through the relevant authority or the Police.
It is relevant to note that the initial application to court must be carefully drafted.
Counsel should take precautions to include all materials to establish the nuisance. Details must be set out regarding the violation and the violator should be identified. Details of the nuisance and the impact must be set out with the supporting data and the necessary documents. All scientific data pertaining to the analysis of the extent of the nuisance must be presented to Court at the time the initial application is made.
Generally, the party affected by an act of a respondent would make police complaint and would possibly initiate action through the Police. But there is nothing in the law that prevents the affected parties from filing information by them. In this situation, it is advisable to obtain affidavits from all persons affected and to have them filed in court. Medical reports, scientific reports, police statements, affidavits are some of the documents that should be filed in such an instance.
Once the information is received by the Court section 98 (1) requires the Magistrate to satisfy himself regarding the contents of the application. He has discretion in deciding whether evidence should be obtained or not. This is a matter that has to receive extra attention by all judges exercising jurisdiction under section 98. Sometimes, a Magistrate may opt to act on the affidavits filed by the complainant and proceed to make an order under section 98 without calling for evidence on the matter. On the other hand, the Magistrate could also call for oral evidence before any order is made.
The initial question that the Court has to be satisfied is the question that the matter complained of amounts to a public nuisance. Once the Court is satisfied regarding this aspect, the Court must then pay attention to the matters set out in the application to Court. Thereafter, the Court must decide whether the obstruction should be removed or not.
After hearing the complainants and their evidence wherever the Magistrate deems such evidence necessary, the Magistrate could either refuse to issue a conditional order or if satisfied regarding the case of the complainant issue a conditional order as set out in section 98(1).
In Jayawardene v Akmeenana Pradeshiya Sabha, it was held that the issue of a licence does not have any legal recognition if the licensee continues to violate the conditions in the licence. The essence of this judgment appears to be that a proceeding under section 98 of the Code could proceed even in an instance; the respondent is issued with a licence under the National Environmental Act, if the licensee is found to have acted in breach of the conditions.
If the respondent appears on the nominated day or before and moves to have the order set aside or modified, the Magistrate under section 102 of the Code is required to take evidence in the matter. Until recently, there was some degree of confusion as to which party should commence leading the evidence. It was held in the case of Elal Jayantha v OIC Panadura, that the burden of leading evidence is with the respondent, on that occasion. If the respondent is unable to discharge this burden, the Court would make the earlier order absolute.
Once the conditional order is served on the respondent and if he fails to comply with the same and also does not act under section 98(2) and apply for the modification of the order or to set it aside, he becomes liable to face the penalty set out in section 185 of the Penal Code. A prosecution under this section can take place only with the sanction of the Attorney General or on the complaint of the public servant concerned. (Section 135 of the Code).
The writer is a retired Professor in Law at the University of Sri Jayewardenepura. He is an Attorney- at- Law, practising in courts and holds a Ph.D in Law.
