In Fernando v Fernando (1936) 1 CLJ 20 Soertsz J said in dealing with a Magistrate's power to take preventive action in respect of a public nuisance there is no provision in our criminal procedure which gives a Magistrate jurisdiction to entertain a prayer for relief against a private nuisance. The preventive jurisdiction of Magistrates is intended for the suppression of public nuisances.
In Sinna Gura v Inspector of Police, Karawanella (1957) 61 NLR 186,Sinnetamby J stated that a Magistrate, therefore, is not entitled to make an order in respect of a tree standing on a neighbour's land, although it is likely to fall down and damage buildings belonging to the complainant and injure members of his family.
In an anonymous case reported in 7 Tamb. 22 it was held that in deciding whether the obstruction should be removed or not, the Magistrate must act on evidence which has satisfied him that the obstruction is on land or water used by the public and which the public may lawfully use.
In Don Andiris v Don Manuel (1909) 2 Leader LR 143, it was held that where a path is alleged to have been obstructed, there must be evidence to establish that the path has been dedicated to the use of the public, either by proof of a notarial grant from the respondent or his predecessors in title or by proof of use of the path by the public as of right from time immemorial.
In Tissera v Fraser (1921) 21 NLR 241 it was held per de Sampayo J that where dedication is relied on as a source of rights available to the public, dedication otherwise than by deed as a mode of conferring rights on the public is not recognized by the Roman-Dutch law, nor has this principle of dedication been introduced to the law of Ceylon.
In Allishamy v Arnolishamy (1898) 1 Tamb26 it was held per Bonser CJ and Withers J that proof of uninterrupted use for 30 years and upwards is not sufficient to establish user from time immemorial in Ceylon. User for a period extending beyond the memory of man must be proved.
In Sangarasegra v Sinnatamby (1923) 25 NLR 139 it was moreover, held per Jayewardene AJ that the presumption of immemorial user from demonstrable user for 30 years or longer can only be made in the absence of any evidence as to when and how the user actually commenced. It is essential that the person asking for an order under this provision should establish that the place from which the obstruction is to be removed is a public place.
In Saram v Seneviratne (1918) 21 NLR 190 it was held per de Sampayo J that a nuisance which affects only those living or carrying on business in the vicinity, and not necessarily the public in general, may be the subject of proceedings under this provision. All that is essential is that the injury, danger or annoyance should be "common", and not restricted to a few individuals.
A Magistrate's preventive jurisdiction
In Ratwatte v Owen (1892) 1 SCR 172 it was decided that the invocation of a Magistrate's preventive jurisdiction in this regard involves interference with rights in respect of property, in the interest of the community or a substantial section of it. While the public interest requires protection, this objective must be attained by causing as little interference as possible with the enjoyment of private rights. One way of ensuring minimal interference is to insist that, where an act can be committed in an innocuous as well as an offensive manner, a Magistrate should not prohibit the act absolutely but only prevent performance of it in the mode likely to cause annoyance to others. The underlying principle is that a person cannot be restrained from using his property at all on the ground of anticipation that a nuisance might result from the use of the propertyin an improper manner.
In Forrest v Leeff (1910) 13 NLR 119 it was held that a person cannot, by long continuance of his practice, acquire a right to carry on a business in such a way as to cause a public nuisance. If the place where he carried it on was first surrounded by land on which there were no buildings, but houses gradually approached it, so that the activity becomes a nuisance to the inhabitants, they are entitled to the right to have it abated.
In Saram it was also held that an order may be made against the proprietor of an oil store where coopering is carried on, if the noise created by the constant hammering on barrels affects the whole neighbourhood.
In Muttiah v Meera Meydeen (1891) 1 SCR 85 it was held that, similarly, proceedings may be taken against a person who refuses to allow, or obstructs, drawing water from a public well.
In Hendricks Mendis v Sri Chandrasekera Mudaliyar (1908) 12 NLR 33, it was held that where a person other than against whom proceedings are instituted asserts a bona fide claim to the property in respect of which the proceedings are commenced, it is the duty of the Magistrate to stay criminal proceedings and to allow such person the opportunity of establishing his claim in a court of civil jurisdiction.
In Janse v Costa (1897) 2 NLR 299, it was held that it is not competent for a Magistrate to order the complainant to pay costs to the State. An appeal lies from an order to pay costs to the State, if such order is made without jurisdiction.
In Mendis v Fernando (1909) 3 Leader Part 3, p. 3 it was held that criminal proceedings abate on the death of the party cited as respondent, and the substitution of his legal representative is improper.
In Cader Saibo v Branha (1897) 2 NLR 302, it was held that an order by a Magistrate to suppress a public nuisance must specify clearly the particular trade, activity or occupation in respect of which the order is made, and the place where the trade, activity or occupation was engaged in.
The removal of a
In Chapter IX, of the Code of Criminal Procedure Act No 15 of 1979, titled Public Nuisances, in Part A relating to Orders for Removal or Abatement in Cases of Nuisance,Section 98, on a conditional order for the removal of a nuisance, lays down that (1) whenever a Magistrate considers on receiving a report or other information and on taking such evidence (if any) as he thinks fit (a) that any unlawful obstruction or nuisance should be removed from any way, harbour, lake, river, or channel which is or may be lawfully used by the public or from any public place; or (b) that any trade or occupation or the keeping of any goods or merchandise by reason of its being injurious to the health or physical comfort of the community be suppressed or removed or prohibited; or (c) that the construction of any building or the disposal of any substance should as being likely to occasion a conflagration or explosion be prevented or stopped; or (d) that any building or tree is in such a condition that it is likely to fall and thereby cause injury...... to persons living or carrying on business in the neighbourhood or passing by and that in consequence its removal, repair, or support is necessary; or (e) that any tank, well, or excavation adjacent to any such way or public place should be fenced in such a manner as to prevent danger arising to the public, such Magistrate may make a conditional order requiring that the person causing such obstruction or nuisance or carrying on such trade or occupation or keeping any such goods or merchandise or owning, possessing, or controlling such building, substance, tree, tank, well or excavation shall within a time to be fixed by such order (i) remove such obstruction or nuisance; or (ii) suppress or remove such trade or occupation; or (iii) remove such goods or merchandise; or (iv) prevent or stop the construction of such building; or (v) remove, repair, or support it; or (vi) alter the disposal of such substance; or (vii) remove such tree; or (viii) fence such tank, well or excavation as the case may be; (2) any person against whom a conditional order has been made under Sub-Section (1) may appear before the Magistrate making that order or any other Magistrate of that court before the expiration of the time fixed by that order and move to have the order set aside or modified in the manner hereinafter provided; (3) any order duly made under this Section shall not be called in question in any civil court; and (4) for the purposes of this Section "a public place" includes also property belonging to the State or a corporation or vested in any public officer or department of State for public purposes and ground left unoccupied for sanitary or recreational purposes.
On the service or notification of an order, Section 99 lays down that (1) the order or any other order or notice given under this Chapter shall if practicable be served on the person against whom it is made or to whom it is to be given in manner herein provided for service of a summons; and (2) if such order cannot be so served a copy thereof shall be posted up at such place or places as the Court may consider fittest for conveying the information to such person.
On the requirement that the person to whom the order is addressed is to obey or show cause and the consequences of failing to do so, Section 100 lays down that (1) the person against whom such order is made shall within the time specified therein (a) perform the act directed thereby; or (b) act under Sub-Section (2) of Section 98; and (2) if such person does not perform such act or appear and move to have the order set aside or modified as required by Sub-Section (1) he shall be liable to the penalty prescribed in that behalf in Section 185 of the Penal Code and the order shall be made absolute: Provided that if such person be a corporate body every director thereof shall be liable to the penalty herein before prescribed unless such director proves that such default was not occasioned by any act of his or by any omission on his part.
The order shall be made absolute
On the procedure in the case of appearance, Section 101 lays down that (1) if such person appears and moves to have the order set aside or modified the Magistrate shall take evidence in the matter; (2) if the Magistrate is satisfied that the order is not reasonable and proper he shall either rescind the same or modify it in accordance with the requirements of the case, and in the latter case the order as modified shall be made absolute; and (3) if the Magistrate is not so satisfied the order shall be made absolute.
On the procedure on the order being made absolute, Section 102 lays down that when an order has been made absolute under Section 100 or Section 101 the Magistrate shall give notice of the same to the person against whom the order was made and shall further require him to perform the act directed by the order within a time specified in the notice and inform him that in the case of disobedience he will be liable to the penalties provided by Sub-Section (2) of Section 100.
On the consequence of disobedience to the order, Section 103 lays down that (1) if such act is not performed within the time specified in the notice issued under Section (2) the Magistrate may cause it to be performed and may recover the costs of performing it either by the sale of any building, goods, or other property removed by his order or by the distress or sale of any other movable property of such person within or without the local limits of the jurisdiction of his Court and if such other property is without such limits the order shall authorize its attachment and sale when endorsed by a Magistrate within the local limits of whose jurisdiction the property be attached is found; and (2) a suit shall not lie in respect of anything done in good faith under this Section.
On an injunction pending inquiry, Section 104 lays down that (1) if the Magistrate making an order under Section 98 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public he may issue such an injunction to the person against whom the order was made as is required to obviate or prevent such danger or injury; (2) in default of such person forthwith obeying such injunction the Magistrate may use or cause to be used such means as he thinks fit to obviate such to prevent such injury; and (3) a suit shall not lie in respect of anything done in good faith by a Magistrate under this Section.
On the provision that a Magistrate may prohibit continuance of public nuisances, Section 105 lays down that a Magistrate may order any person not to repeat or continue a public nuisance as defined in the Penal Code or any special or local law.
In Part B on Temporary Orders in Urgent Cases of Nuisance, Section 106,on power to issue absolute order at once in urgent cases of nuisance, lays down that (1) in cases where in the opinion of a Magistrate immediate prevention or speedy remedy is desirable the Magistrate may by a written order stating the material facts of the case and served in manner provided by Section 99 direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if the Magistrate considers that such direction is likely to prevent of tends to prevent obstruction, annoyance, or injury, or risk of obstruction, annoyance, or injury, to any person lawfully employed or danger to human life, health or safety, or a riot or an affray; (2) an order under Sub-section (1) may in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a service upon the persons against whom the order is directed be made ex parte;(3) an order under Sub-section (1) may be directed to a particular person or to the public generally when frequenting or visiting a particular place, and in the latter case a copy of the order shall be posted up as provided by Sub-section (2) of Section 99;(4) any Magistrate may rescind or alter any order made under Sub-section (1) by himself or his predecessor in office; and (5) an order under this Section shall not remain in force for more than fourteen days from the making thereof 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.(Ceylon Today)