Public nuisance: conditional orders under BNSS 152–162

Section 152 is the Executive Magistrate’s tool against standing public harms — the blocked path, the crumbling building, the polluting unit. Where s. 163 handles emergencies for two months, ss. 152–162 handle the durable nuisance through a structured, evidence-based proceeding that ends in a permanent order. It is slower than a 163 order and far more durable: an absolute order under s. 160 does not expire.

Grounds: s. 152

On receiving a police report or other information, and taking such evidence (if any) as he thinks fit, the District Magistrate, Sub-Divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government may pass a conditional order against a person to:

• remove an unlawful obstruction or nuisance from any public place or from any way, river or channel lawfully used by the public;
• desist from carrying on, or to regulate, a trade or occupation injurious to the health or physical comfort of the community, or to remove or regulate offensive goods or merchandise;
• prevent or stop the construction of any building, or the disposal of any substance, likely to occasion conflagration or explosion;
• remove, repair or support a building, tent or structure, or a tree, in a condition likely to fall and cause injury;
• fence a tank, well or excavation adjacent to a public way or place;
• destroy, confine or dispose of a dangerous animal.

Note the forum: a plain, unempowered EM cannot pass a s. 152 order. The order is “conditional” because it commands the person, within a time fixed, either to comply or to appear before the Magistrate and show cause why the order should not be made absolute.

The procedure, step by step

1. Service — s. 153. The order is served on the person like a summons; where service is not practicable, it is notified by proclamation published as the State Government directs — dandora and local affixture in practice.
2. Comply or show cause — ss. 154, 155. The person must either perform the act within the time fixed or appear and show cause. Doing neither exposes him to the penalty under s. 155 (with prosecution under the BNS for continuing disobedience) and the order will be enforced against him.
3. Denial of a public right — s. 156. If the person appears and denies the existence of the public right — says the path is his private land, the channel a private drain — the Magistrate must inquire whether there is any reliable evidence supporting the denial. If there is, proceedings stay until the right is decided by a competent civil court; if the denial is unsupported by any reliable evidence — frivolous — the proceeding continues. This is the escape hatch every respondent tries; test the denial against the record — pahani entries, the village map, classification as poramboke — before conceding it.
4. Evidence — ss. 157–159. Otherwise the Magistrate takes evidence as in a summons case (s. 157), may direct a local investigation or summon an expert for the purpose (s. 158), and may furnish the person directed to make the local investigation with written instructions and declare who bears the expenses (s. 159).
5. Absolute or dropped — s. 160. If the cause shown fails, the conditional order is made absolute — with or without modification — and the person is required to perform it; disobedience carries the section’s consequences and the Magistrate may have the act performed and recover the cost. If the cause succeeds, no further proceedings are taken.
6. Injunction pending inquiry — s. 161. Where imminent danger or injury of a serious kind looms, the Magistrate may issue an interim injunction pending the inquiry — and if the person defaults, may himself use or cause to be used the means necessary and recover the cost. No such order is bad merely for want of notice in a genuine emergency.
7. No repetition — s. 162. The DM, SDM or empowered EM may prohibit any person from repeating or continuing a public nuisance, permanently.

There is no appeal against orders in this chapter; the remedies are revision under s. 438 and the writ court.

A worked example: the wall across the cart track

Yerrampalem, a village in a mandal of erstwhile Khammam. A rice-mill owner — call him Veeraswamy — extends his compound wall across a cart track that thirty families of the weaker-section colony have used for decades to reach their fields and the burial ground. The gram panchayat writes to the Tahsildar; a scuffle at the wall produces a police report; both reach the RDO.

The file, run properly:

1. Record first. Before any order, the RDO calls for the village map and pahani: the track shows as a recorded footpath-cum-cart track on government poramboke; Veeraswamy’s patta stops at his mill compound’s old line. The revenue inspector’s spot report with a sketch and photographs completes the base.
2. Conditional order. A s. 152 order issues: reciting the police report, the RI’s report and the record; finding the track a way lawfully used by the public and the wall an unlawful obstruction; and directing Veeraswamy to remove the wall within fifteen days or appear and show cause. Served under s. 153 against acknowledgment.
3. The s. 156 gambit. Veeraswamy appears and denies the public right: the track, he says, is his ancestral private passage. The RDO does what s. 156 requires — asks for his evidence. He produces a sale deed that describes his boundary as the compound’s old line and nothing showing title over the track. Against the village map and pahani, the denial has no reliable support; the RDO records that finding and continues.
4. Evidence and local investigation. Under s. 157, the panchayat secretary, two colony elders and the RI depose; under s. 158 the RDO directs the mandal surveyor to measure the track against the village map, with written instructions under s. 159. The surveyor’s report confirms the encroachment: the wall stands 1.8 metres into the recorded track.
5. Absolute. Cause fails; the conditional order is made absolute under s. 160 with a fresh ten-day compliance window. Veeraswamy does not comply; the wall is removed through the Tahsildar at his cost, recovery noted. A s. 162 order prohibits re-erection. His revision to the Sessions Court fails on the strength of the record — the map, the pahani, the survey, the reasoned s. 156 finding.

The proceeding survived because the public character of the way was proved from the revenue record before the conditional order ever issued.

Edge cases and common mistakes

• Ordering first, checking the record later. The conditional order that recites no material collapses the moment the respondent denies the public right. The pahani, the village map and classification come first.
• Conceding s. 156 too easily. A bare assertion of private title is not “reliable evidence” — the section requires you to test it. Equally, where the respondent produces a genuine registered document or a decree, the honest course is to stay and let the civil court decide; pressing on invites reversal.
• Using 152 for a private dispute. Two neighbours fighting over a shared passage is a civil matter, or if a breach of peace looms, s. 164 territory. Section 152 protects public rights and community interests, not one party’s convenience dressed up as the public’s.
• The wrong forum. Only the DM, SDM or a specially empowered EM may act. A Tahsildar not so empowered signing a conditional order produces a nullity — check the district notification.
• Demolition without an absolute order. Enforcement — removal at cost — follows an order made absolute under s. 160 or an emergency injunction under s. 161, not the conditional order alone. Pulling the structure down while cause could still be shown is the classic writ-fetching error.
• Letting the interim power sleep. Where the harm is imminent — the leaning wall over a school path before monsoon — s. 161 exists precisely so the inquiry’s pace does not become the danger’s timetable. Use it, with reasons.
• Confusing 152 with revenue eviction. Encroachment on government land also has remedies under the land-encroachment law; s. 152 is the faster route where a public way or resource is actually obstructed, but it abates the nuisance — it does not settle title or replace the revenue proceeding.

Questions you’ll actually get

“The panchayat says: the encroacher is powerful, just demolish it under your magistrate powers.” The power exists but runs through the procedure: record, conditional order, opportunity, evidence, absolute order — then removal at his cost. The procedure is not the obstacle; it is what makes the demolition stick in revision.

“Respondent’s counsel: my client has been running this mill for twenty years — how is it suddenly a nuisance?” Length of operation is no licence for a public nuisance; the question under s. 152 is present injury to the community, and the trade head expressly permits regulation short of closure. The order can regulate — hours, effluent handling, relocation of the offending process — rather than shut, and a proportionate order is the more defensible one.

“Can I get an order to stop my neighbour’s function-hall noise at night?” Noise affecting a neighbourhood can ground the trade/comfort head, but one aggrieved neighbour’s quarrel usually belongs to the police and the civil court. Where a community is affected — the whole street, a school — the s. 152 route opens.

“What if he neither complies nor appears?” s. 155’s penalty attaches, prosecution follows for disobedience, and the order is enforced — the act performed through the administration and the cost recovered from him. Non-appearance does not stall the file; it forfeits his defence.

“Where does he appeal?” Nowhere — there is no appeal in this chapter. His remedies are revision under s. 438 and the High Court’s writ jurisdiction, both of which read the record you built.

Field notes for a probationer

Read one s. 152 file that ended in an absolute order and one that collapsed at the s. 156 stage. The difference is almost always preparation: the surviving order had the public character of the way or channel proved from the revenue record before the conditional order ever issued. Then keep a private list of the division’s standing nuisances — the tank-bed encroachments, the pre-monsoon dangerous structures — because this chapter rewards the officer who moves before the collapse, not after.