Public Nuisance

2026 MLD 157 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 561-A & 133Quashing of orderInherent power of High CourtPublic nuisanceScope

Application under S.133, Cr.P.C., was filed by private respondent against applicant, who was alleged to have disposed waste water from its factory which was injurious to health

Such allegations were challenged on the grounds inter alia that the matter was already addressed at various forums

Validity

Perusal of the record reflected that earlier identical applications under S.133, Cr.P.C., were filed against the same Mill of applicant by one "AWA" who later on also approached the High Court under Art.199, wherein Mukhtiarkar Revenue was appointed as Local Commissioner to inspect the site and report from concerned SHO Police Station were also called

Both such reports negated the allegations against the applicant and the petition was accordingly dismissed vide order dated 26.09.2018

Record further reflected that in the present case also, an application for appointment of Local Commissioner to inspect the site was made which was allowed and Report from the concerned SHO was also called, who in his report dated 25.02.2021 reported that no nuisance had been caused by the applicant but there was some dispute between some local community and the applicant over some agricultural land

Concerned Mukhtiarkar also filed his inspection report

Considering the said facts, the application under S.133, Cr.P.C., was dismissed by the Magistrate after hearing the parties

Moreover, it appeared that in the Criminal Revision Application, a statement dated 09.08.2021 was filed by the private respondent for withdrawal of revision application and based whereon vide order dated 09.08.2021 the revision was ordered to be dismissed as withdrawn by the Court

It was alleged by applicant that once the revision application was dismissed as withdrawn, the Sessions Judge had no jurisdiction to pass any further order in the same case, yet the impugned order dated 27.04.2022 was passed

Study of the subject showed that principle of functus officio had been strictly followed in every variety of law, as for instance, a Magistrate became functus officio once the Sessions Court took cognizance of the matter

Upon dropping of proceedings also the Magistrate became functus officio and lacked power to subsequently issue orders for attachment of property under S.145, Cr.P.C.

With respect to powers under S.561-A, Cr.P.C., it had been held that although legislature had equipped the High Court with ample inherent power under S.561-A, Cr.P.C., however after disposal of a criminal matter, it became functus officio; it could not review or sit in appeal against its own orders passed in criminal jurisdiction, except correction of clerical errors

Even under the constitutional jurisdiction this principle was followed that after passing of an order for withdrawal of a petition as not pressed, the Court became functus officio and correction of the same on merits under S.151 or 152, C.P.C, was not permissible

On the other hand, perusal of reports from the concerned Mukhtiarkar and SHO also did not point towards any illegality being committed by the applicant whereas a complete mechanism for protection of environment was also available under the Sindh Environment Protection Authority Act, 2014

Further, it was clearly reported that no particular incidence of nuisance caused due to water ponds or storage of black mud by the mill to any person was found

Petition was allowed, accordingly.

2019 PLD 751 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 133Public nuisanceConditional order for removal of nuisanceFiling of complaintPre-requisites

Perusal of S.133, Cr.P.C clearly revealed that consent of Advocate General or leave of Court was not required for filing complaint under S.133 Cr.P.C. or for bringing machinery of criminal law into motion

Magistrate could pass order for removal of obstruction or nuisance on basis of police report or any other information/evidence thought fit by him.

2019 PLD 751 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 133Public nuisanceConditional order for removal of nuisanceObstructionScopeBlocking drain water of village

Perusal of record revealed that petitioner had prima facie caused unlawful obstruction by filling someland of village 'chapper' (water drainage reservoir) with clay and erecting a 'wat/bund', which resulted into blockage of passage of water from village to 'chapper', which act prima facie constituted 'obstruction' as defined in S.133 Cr.P.C.

Petition was dismissed accordingly.

2019 PLD 751 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 91(1) [as amended by the Code of Civil Procedure (Punjab Amendment) Act (XIV of 2018)]Public nuisanceSuit, filing ofProcedureLeave of the court

Before amendment of S. 91(1), C.P.C, consent of Advocate General was required when civil suit was to be filed regarding public nuisance

After amendment of S. 91(1) by Code of Civil Procedure (Punjab Amendment) Act (XIV of 2018) now only 'leave of the Court' was necessary for filing such a suit.

2017 CLC 635 ISLAMABAD Judicial Precedent

S. 91 & O.VII, R. 11Specific Relief Act (I of 1877), Ss.42 & 54Public nuisanceSuit for declaration and permanent injunctionConsent of Advocate GeneralScopePlaint, rejection ofPlaintiffs filed suit to the effect that defendants were closing the road

Authorities (defendants) moved application for rejection of plaint on the ground that land through which road in question passed was acquired by the authorities

Plaint was rejected concurrently

Validity

If a particular right of suit had arisen in favour of a particular person i.e. in case of public nuisance then such right was not affected by S.91, C.P.C.

If plaintiffs were shown to suffer direct or special damage and also the general public then suit would be maintainable without consent of Advocate General

Plaintiffs wanted to prosecute the suit in their individual and independent capacities and not as representatives of the village

Present suit could be proceeded without the plaintiffs having obtained the permission of Advocate General

Where the case did not relate to a public nuisance then S.91, C.P.C. was not attracted and no intervention of Advocate General was necessary

Plaintiffs were not seeking permanent easement rights over the road in question

Land through which road passed was owned by Development Authority

Plaintiffs could not obstruct Development Authority to use the road

Development Authority would be at liberty to use the road in question and close the same to carry out development activity

Impugned judgments passed by the courts below were set aside

Matter was remanded to the Trial Court for further proceedings

Trial Court would determine as to whether the case was in fact a case of private nuisance or it involved the determination of plaintiffs' independent right to use the road so as to take the case within the parameters of S.91(2), C.P.C.

Second appeal was allowed in circumstances.

2016 CLC 1719 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 91Constitution of Pakistan, Art.199Constitutional petitionPublic nuisanceCommercial activity in residential area in CantonmentFactual controversy

Petitioners were aggrieved of commercial activities in shape of beauty parlours/private schools by respondents in residential buildings situated in residential areas

Validity

No material was available on record to establish nuisance and only reliance was made to certain judgments of superior Courts to establish nuisance on wrongful use of residential properties

Commercial activity was going on at residential properties and in order to claim nuisance one had to establish the same through tangible evidence

"Nuisance" was a relative term and it could not be ascertained in Constitutional jurisdiction of High Court, as it required recording of evidence

Petitioners could seek their remedy before competent Court of law, if so desired, as provided under S.91, C.P.C. or before Cantonment Board

No Objection Certificates were issued by Cantonment Board for operation/opening of certain educational institutions

In presence of "No Objection Certificates" and on account of pending litigation proceedings before appropriate forum, functioning of schools/ educational institutions/ commercial organizations could not be considered to be unlawful or illegal

High Court directed Cantonment Board to optimize its policy and to evolve workable strategy in order to shorten miseries and multiplicity of litigation in the larger interest and welfare of public at large

Commercial/educational institutions had been working at their respective premises since long due to obvious inaction on the part of Cantonment Board in addition to the mandate contained in letter issued by authorities

High Court remanded the matter to Cantonment Board to conclude pending proceedings pursuant to show cause notices issued to alleged violators

Petition was disposed of accordingly.

2016 PLD 26 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 54Civil Procedure Code (V of 1908), O. VII, R. 11 & S. 91Constitution of Pakistan, Art. 199Constitutional petitionSuit for permanent injunctionRejection of plaintPrinciplesPublic nuisancePermission of Advocate General for filing suit on ground of nuisance under S.91, C.P.C.Scope

Section 91 of C.P.C. provided that suit for declaration or injunction in respect of public nuisance could be filed by two or more persons with permission of Advocate General

Exception, however, was there, that principle as embodied in S.91(2) of C.P.C., which provided that provision of S.91(1), C.P.C. would not limit or otherwise affect any right of suit, which might exist independently

Plaintiff had claimed that conversion of residential unit into commercial unit (car showroom) had disturbed their peace, privacy and security, and that they would face constant disturbance and agony along with their families due to said illegal conversion

Plaintiff, on basis of said claims, had independent right to sue, and no permission of Advocate General was, therefore, required for filing of present suit

Present suit contained multiple prayers and permission of Advocate General under S.91 of C.P.C. would be required only to the extent of prayer regarding said conversion and not regarding other reliefs prayed for by plaintiff

Plaint could not be rejected in piecemeal

Plaint could only be rejected if all reliefs claimed by plaintiffs were barred under law

Even if one of the prayers was maintainable, plaint could not be rejected under O. VII, R.11 of C.P.C.

Constitutional petition was dismissed in circumstances.

2016 PLD 26 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 91Specific Relief Act (I of 1877), Ss. 42 & 54Public nuisancePermission of Advocate General for filing of suitPrinciples

Section 91 of C.P.C. provided that suit for declaration or injunction in respect of public nuisance could be filed by two or more persons with permission of Advocate General

Exception, however, was there, that principle as embodied in S.91(2) of C.P.C., which provided that provision of S.91(1) of C.P.C. would not limit or otherwise affect any right of suit, which might exist independently.

2016 PLD 292 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 91Public nuisancePermission of Advocate General for filing of a lis

Written permission of Advocate General was required for filing a lis by two or more persons with regard to 'public nuisance' who had not suffered any special damage

Said condition would not limit or affect a right of suit which might exist independently

Where one or more persons had approached the court for declaration of a nuisance while claiming an invasion to their 'easement right' permission of Advocate General for filing the lis was not required

In the present case, plaintiffs had alleged that use of property as Marriage Hall by the respondents had been causing serious discomfort and annoyance resulting in disturbing their easment rights

Held, one had a right to enjoy music and arrange gathering or feast at his place but not by discomforting or annoying neighbours to enjoy their right of easment and restrict them to reach at their doors

Complaint of the plaintiffs if established would constitute a 'nuisance (infringement of their individual rights to enjoy property and right to live therein)

Both the courts below had exceeded in exercising their jurisdiction

Impugned judgments/orders passed by the courts below were set aside and case was remanded in its original position for decision in accordance with law within a specified time.

2012 SCMR 604 SUPREME-COURT Judicial Precedent

S. 21Criminal Procedure Code (V of 1898), S. 133Constitution of Pakistan, Art. 185(3)Public NuisanceNuisance created by machines in grind mill installed in inhabited area

Notices were issued by Supreme Court to Director-General Environment to explain as to whether installation of grind mill in inhabited area was permissible

Director-General Environment submitted report outlining, the different forms of nuisances created by the machines installed; the reasons for the nuisance; remedial measures that could be adopted to reverse the impact of the nuisance, and the fact that machines had since been sealed and were not operational on orders of the Assistant Commissioner

Contention of petitioner was that the grind mill was a nuisance in all forms and manifestations and it was required to be removed

Validity

Respondent had stated that machines installed by him had been sealed under order of the Assistant Commissioner and in case he operated them again, same would abide by all the remedial measures suggested by the Director-General Environment in his report

Petition for leave to appeal was disposed of accordingly.

2012 CLD 698 SUPREME-COURT Judicial Precedent

S. 21Criminal Procedure Code (V of 1898), S. 133Constitution of Pakistan, Art. 185(3)Public NuisanceNuisance created by machines in grind mill installed in inhabited area

Notices were issued by Supreme Court to Director-General Environment to explain as to whether installation of grind mill in inhabited area was permissible

Director-General Environment submitted report outlining, the different forms of nuisances created by the machines installed; the reasons for the nuisance; remedial measures that could be adopted to reverse the impact of the nuisance, and the fact that machines had since been sealed and were not operational on orders of the Assistant Commissioner

Contention of petitioner was that the grind mill was a nuisance in all forms and manifestations and it was required to be removed

Validity

Respondent had stated that machines installed by him had been sealed under order of the Assistant Commissioner and in case he operated them again, same would abide by all the remedial measures suggested by the Director-General Environment in his report

Petition for leave to appeal was disposed of accordingly.

2012 CLC 1145 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 91Public nuisanceScopeWhether permission of the Advocate-General was necessary to file the suitConstruction of embankments, sewage water and soil erosion causing damage to land, houses, trees and cropsAllegation of construction of embankments to save politician's landTrial Court had decided that permission of Advocate-General was necessary before filing the suitValidity

Section 91. C.P.C., provided that a suit for declaration or injunction in respect of public nuisance could be filed by two or more persons with the permission of the Advocate-General, however, there was an exception to said principle under section 91(2), C.P.C., which provided that provisions of section 91(1), C.P.C., would not limit or otherwise affect any right of suit, which may exist independently

Appellants' contention being that they had suffered losses due to construction of embankments to save the lands of a Minister, they had independent right to sue on the basis of such averments, and permission of the Advocate-General was not required for filing the suit

Findings of Trial Court on the issue, therefore, were not sustainable and were reversed.

2011 CLC 1866 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 42 & 54Civil Procedure Code (V of 1908), Ss.91, 94(c), O.XXXIX, Rr.1 & 2Suit for declaration and permanent injunctionScopePublic nuisancePublic interest

Commercial school opened by defendant without permission of City Local Government on residential property in a residential area in immediate vicinity of plaintiffs' houses causing them nuisance and impairing peaceful enjoyment thereof

Plaintiffs' application for grant of interim injunction against operation of school on suit property

Defendant's plea that school on suit property was in full operation since year 2004 long before acquisition of residences by plaintiffs in year 2006-2007; that more than 59 schools were in operation in same locality, which ceased to be a purely residential area, thus, acts complained of would not constitute a nuisance; that defendant by running school was performing an important civic duty of imparting education, which was in larger public interest, thus, sought refusal of such relief

Validity

Onus was on defendant to establish that complexion/character of disputed locality being residential had already changed

Owner of a private residence would normally be only concerned with and could only complain about his own disturbance

Enjoyment of a private residence would not ordinarily be affected if similar or other commercial activities were being carried out in other neighbouring localities

Other 59 schools were not operating in vicinity of plaintiffs' residences

Nothing on record to show that immediate neighbourhood of plaintiffs had been so altered by commercial and other activities that operation of a school by defendant on suit property would not constitute a nuisance

Residential property put to a non-residential use and then great deal of movement to and from such property at regular times would constitute a nuisance

Activities of or at a school at specific time of its opening and closing could materially impair enjoyment by neighbours of their properties

Plaintiffs had established a prima facie case that running of school on suit property constituted a nuisance as they were being discomforted in enjoyment of their residences on daily basis during school term

Balance of convenience and question of irreparable loss/injury was in favour of plaintiffs

Court, though finding all three ingredients to be in plaintiffs' favour, could in appropriate circumstances withhold injunctive relief for same being equitable and discretionary

Mushroom growth in population had created huge demand for education in all parts of the country, which demand of public interest must be met one way or the other

Court, in larger public interest could withhold such relief even though plaintiff having made out a case therefor on account of nuisance

Public interest would be fully engaged, when school had been in operation for some time and a large number of students had been attending school for a number of years

Sudden disturbance in established routine of education of a large number of students would have disruptive impact on their education

Court in such situation would consider and weigh question of public interest while outweighing individual rights of plaintiffs

High Court declined to grant the relief to plaintiffs in circumstances

Principles.

2011 CLC 250 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 91Public nuisanceSuit for declarationMaintainabilityConditionPrior permission of Advocate General in the case of public nuisance under S.91, C.P.C. was a mandatory condition

Court was not liable to entertain suit where said permission had not been obtained by the plaintiff before filing the suit.

2011 CLC 250 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 42 & 56Civil Procedure Code (V of 1908), S.91 & O. VII, R.11Sindh Buildings Control Ordinance (V of 1979), S.6(2)Karachi Building and Town Planning Regulations, 2002, Reglns.18-3.1.8 & 25-2.1Public nuisanceSuit for declaration and permanent injunctionEssential conditions for seeking relief of declaration under S.42, Specific Relief Act, 1877, enumerated

Plaintiff contended that defendant unlawfully sub-divided and converted the suit property to unauthorized commercial use

Defendant contended that plaintiff had failed to disclose any cause of action, therefore, plaint was liable to be rejected

Validity

No easement right of plaintiff was infringed by construction on the suit property

Object of exercise of powers under O. VII, R.11, C.P. C. was to bring an end to the incompetent suit at the earliest to avoid wastage of time

Four conditions were essential for seeking relief of declaration under S.42 of Specific Relief Act, 1877 namely, that plaintiff must be entitled to a legal character at the time of suit; that plaintiff must be entitled to a right to property; that defendant must have denied or been interested in denying such legal character or right and that plaintiff should not be in position to ask for relief consequential upon declaration sought

Plaintiff, in the present case, had failed to obtain permission of Advocate-General which was a mandatory condition in the case of a `public nuisance' under S.91, C.P.C.

Court was not liable to entertain suit where prior permission of Advocate General in the case of public nuisance had not been obtained by plaintiff

Where no benefit accrued to the plaintiff or plaintiff had set up merely a abstract right to satisfy his ego or settle a personal score, suit could not be allowed to proceed

Plaintiff, in circumstances, failed to disclose any cause of action against the defendant

Plaint was rejected accordingly.

2009 PCrLJ 55 Supreme Court (AJ&K) Judicial Precedent

S. 133Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42Public nuisance

Chapter X of Criminal Procedure Code, 1898, dealing with public nuisances had clearly stipulated every step to be taken by the Magistrate on receiving an information regarding a public nuisance

Spirit of the said Chapter had to be carried into effect and every word of the law was to be given in meaning as provided by the law itself

Magistrate had adopted cursory procedure in dismissing the complaint made by the S.H.O. regarding an encroachment upon a public road by the petitioner, without following any provision of law

Magistrate appeared to have dealt with the case in an administrative manner instead of adopting a legal procedure

Courts below had rightly set aside the order of the Magistrate and directed him to proceed in accordance with the provisions of law

Leave to appeal was refused to the petitioner accordingly.

2004 PLD 744 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

ConnotationTypes of public nuisancePublic nuisance can be of various typesInterference with the use of a public street resulting in annoyance to public constitutes a `public nuisance'Public is entitled toy use of full width of public street. however wide it may be

Whoever encroaches any part of public street by building over it, infringes the right of public quo ad the part built over

Act of nuisance must necessarily cause obstruction to persons who may have occasion to use their public right over the part encroached upon

Where owners of houses or, shops occupied by them have built certain platforms in front of them to enable the shopkeepers to sit on them for selling their goods and the platforms cause any common injury, danger or annoyance to the public or to people in general, the person who builds such platform is guilty of an act which ex hypothesi amounts to a public nuisance.