0ne act that is crime under section 133 of the Code of Criminal Procedure, 1898 and civil wrong under section 91 of the Code of Civil Procedure, 1908 as public nuisance, can possibly provide a cause for an action as private nuisance to an individual.

 PLD 2022 Lahore 92

0ne act that is crime under section 133 of the Code of Criminal Procedure, 1898 and civil wrong under section 91 of the Code of Civil Procedure, 1908 as public nuisance, can possibly provide a cause for an action as private nuisance to an individual. In essence the difference is that Section 91 of the Code of Civil Procedure, 1908 allows the action for public nuisance even in the absence of proof of special damages, however, where an individual can prove the special damage, can maintain the action as private nuisance for the same act. The damage will qualify as special if it is particular and direct.

Having said that one action can result into both private and public nuisance, we would like to address the remaining objections to the plaint which mainly became reason for rejection of plaint (i) two or more persons should have obtained consent from the Advocate-General (ii) construction of wedding hall, its site plan or approval are matters between the Respondents/Defendants 1 to 3 and Rawalpindi Development Authority (RDA) and Appellant/ Plaintiff despite being neighbor has no concern or cannot maintain action.

There can be no liability to anyone for doing what the law permits, but subsequent permissions from the local authority cannot always justify nuisance or can be taken as a license to create nuisance, especially when it is done in a wrongful or negligent manner. Any damage to private individuals caused by the unreasonable method and manner of operation entails liability notwithstanding permission of local authority, subject to features mentioned above. The existence of permission by authority (if justifiable and meets the criteria of law, reasonableness and public interest), refusal of injunction may be justified but rarely determines actionability and it can influence the remedy. Thus, it would not justify to non-suit someone strait-away by applying Order VII Rule 11 of CPC, despite injury or loss.

Section 91(1) provides that “though no special damage is caused”, which itself suggests that the permission of Advocate-General (prior to amendment of 2018) and now leave of Court is required, for public nuisance as it is collective cause for which suit is maintainable despite no special damage to any individual or requirement of proof of such damage to an individual. When it is particularly read with sub-section 2 of section 91, it is further clarified that the requirement of obtaining consent of Advocate-General (and now leave of the Court), is limited to the cases where no special damage is caused to more than one person but nothing limits the right sue that otherwise accrues or is available under the law, to a person. The suit by Advocate-General or his consent is primarily a representation of people in the locality or people concerned.