As the society gets more and more complicated, the common social issues also get complicated. The public wants to mind its own business and live in peace. When certain parties disrupt that, the public becomes helpless. The police and the Local Authorities are there to protect the general public from such situations.
The court exists in order to get things done from the above institutions or to issue orders to the above institutions against someone who harms the public and to protect the public from those individuals.
Today, many things that harm the public are happening. These include disposing garbage on the street, not collecting garbage, dumping it in dumping grounds and letting them become huge garbage mountains which make it unbearable for the neighbouring residents, obstructing roads, obstructing waterways or releasing chemicals into water sources or streams, discharging water or faecal matter into sewages or the road, dumping into rivers, disposing hospital waste in the forests, buildings that are breeding grounds for mosquitoes, storages that are not fire-safe, factories that emit smoke, toxic gases, landfills and waste released from ships. Parties who contribute to this kind of harm and nuisance are quite common in today’s society. They should be brought to justice. That is what we are going to discuss today.
The law is strict in this regard.
Who can file cases?
How?
Under this section the police can present facts to the court. The court has the option to either inquire evidence from the plaintiff or not, or release a conditional order.
The courts must serve the conditional order to the offending person, board, or department or government corporation via post or the Fiscal Officer, or if it is not possible, it should be displayed publicly on the premises. It is then considered that the order has been served.
Do keep in mind that most of the time, the conditional order is issued unilaterally. That is because the proceedings will take longer which may also lead to the further harm if both parties are called. Therefore, the magistrate’s satisfaction is sufficient.
The conditional order should be an order that prevents public nuisance. It should be specific. It should be targeted at a person or an organization. It should also be practically doable.
Section 100 of the Penal Code – When this type of order is issued against an individual, it cannot be violated. The individual must come to the court and make their submissions. If the magistrate considers that the issue is serious, an injunction can be issued. If you admit to the offense when an order is issued against you and, if you rectify it, there will not be a problem. If the party which received the order does not agree with the order, they can make a request to cancel it or to amend it to some extent. When such a request is made, it will be examined. That means witnesses will be called. The evidence can be oral or provided through affidavits. After the calling of evidence, if the magistrate is satisfied, the order can be changed, slightly amended or continued. If an individual does not adhere to the order, the magistrate can implement it through the court and charge the expenses.
Also, the parties that violate the order can be punished under section 185 of the Penal Code. That means neglecting or not following a legally issued order by a government official. If that happens, there will be no mediation. That would lead to imprisonment and bail will be set. Also, if nothing is done under Section 100, the conditional order will become permanent and that might cause a disadvantage. Therefore, if you receive such an order, it is better to present yourself before the court within the given time period.
Many people complain about the Local Authorities dumping garbage. This is the best solution for that. A collection of 5 people can lodge a police complaint. If not, a group can get together and file a private complaint under section 136 (1)(a) of the Penal Code.
Next, let us look at Section 101. Here, the party who received the conditional order, can request the court to remove or to slightly amend the order. When it is requested, the Magistrate will look into it. If the offending party is objecting the order, an investigation must be carried out. If an investigation is started, the party that objects the conditional order should provide evidence first.
In Darmadasa v. Kularatna, justice Jayasingha has clearly stated that the defendant partyrequesting the order to be cancelled or amended, should initiate the case.
My experience is also similar. Here, the defendant or the party that received the order, needs to do only one thing. That is to prove that the conditional order is unfair and inappropriate using evidence. The plaintiff has the burden of proof to establish that an offence is being committed. A renowned senior lawyer and an expert in this subject, Mr. A.A. Weeraratne states the same in his book ‘Public Nuisance.’ It is stated that due to the above factors and considering efficiency the calling of evidence from the plaintiff party is deliberately abandoned. CA 153/97 (4.5.2001)
The plaintiff also must file evidence and they must prove the occurrence of public nuisance. The defendant is not bound to claim that the public nuisance does not exist. They should be claiming that the conditional order is unfair and inappropriate. Based on Sections 101(2) and 101(3), the conditional order should be either amended or approved.
Furthermore, when a conditional order issued according to Section 102 is not followed, actions should be taken under the subsection 2 of Section 100.
If it is not followed within the time period stipulated in section 103, expenses can be recovered either by selling the goods in the damaged property or taking another property of the defendant into prohibition or by selling the same. Doing so under Section 103(2) will not entail any civil responsibility.
If the magistrate’s understanding is that harm has been caused under Sections 104.1 and 98, and if it is serious harm, an injunction can be issued against the defendant in order to prevent or avoid escalation of the situation.
If the party that received the order does not adhere to it, it can be carried out with the magistrate’s order. That does not entail civil responsibility.
Under Section 105, the magistrate has the power to prevent the occurrence from continuing.
Other organizations that can take actions against public nuisance besides police
Sections 100-107 of the Divisional Secretaries Act No.15 of 1987, Section 83 of the Urban Councils Ordinance No.61 of 1947 and Section 83 of the Municipal Councils Ordinance No. 29 of 1947 are important. Through this act and the ordinances, the urban councils, the municipal councils and divisional secretariats are given considerable authority to prevent public nuisance in their respective jurisdiction to ensure the wellbeing and welfare of the public. Not only that, the Central Environmental Authority also has many powers under the Central Environmental Authority Act. According to the powers vested in the Police Ordinance, the police can file a case and prosecute. Even with that many authorities empowered, the public suffers much environmental harm. All of them are public nuisances. However, because of political reasons and elections, many municipal councillors are reluctant to make decisions. As a result, these issues are dealt by nongovernmental organizations such as the Centre for Environment Justice. These issues include nuisances ranging from minor matters such as not collecting garbage, to large-scale nuisances or offences. The public should be on alert and seek legal counsel in the event of such occurrences.
As many Local Authority members do not fulfil their duties, getting these done is also difficult. In such situations, the simplest answer is to file a writ. If any of the above authorities do not to use their powers and execute their duties, a Mandamus writ order can be obtained. Also, injunctions can be filed against them through the Court of Appeal.
If there is a garbage mountain (landfill) in your village, and if it is a public nuisance, a group of people can get together and file a complaint under the section 98. You can take action against factories, carpentry workshops or others that cause too much noise. Some unnecessary loud speakers can also be stopped. Many things can be prevented. Only thing is, action should be taken by you. Demand your Municipal Councillors to act under this Act, and if they do not, refrain from voting for them in the next LA election.
Also, you can individually file civil cases against the harassment caused by your neighbour. That does not come under public nuisance. There is another act called the Nuisance Ordinance. It is related to harm to public health and nuisance that affect the general public.
By: Lakshan Dias, Attorney at law
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