(1) In the case of a public nuisance or other wrongful act affecting or likely to affect the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,—
(a) By the Advocate-General, or
(b) With the leave of the court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
Section 91 (1) of the Code prior to its amendment by the Amendment Act, 1976, authorised the Advocate-General or two or more persons having obtained his consent in writing to institute a suit. The provision with regard to the obtaining of the Advocate-General’s consent has now been modified by the provisions of S. 91 stated above.
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This section is a procedural provision. It does not purport to create any new right, nor does it purport to deprive anybody of a right derived from the general law of the land. Consequently, it does not control representative suits under Order I, Rule 8 (discussed in detail earlier in Part I) or modify the right of a person to sue apart from the provision of this section.
Thus a representative suit brought not on behalf of the public of a place but of one particular community forming part of it, i.e., for declaration of its right to take out a procession along a particular route and for removal of certain obstructions did not earlier require previous consent of the Advocate-General or the leave of the court.
Meaning of Public Nuisance:
The term “public nuisance” occurring in S. 91 has not been defined in the Code of Civil Procedure. It is an act which interferes with the enjoyment of a right which all members of the community are entitled to, such as the right to fresh air, to travel on the highways, etc. (Osborn).
In view of the provisions of S. 3 (48) of the General Clauses Act, the definition of “public nuisance” as given in S. 268 of the Indian Penal Code will apply to the present Code. It says: “A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”
The consensus of judicial opinion has, in recent years, veered round the view that the English rule that the plaintiffs cannot maintain a suit in respect of an obstruction to a highway unless they prove special damage to themselves personally in addition to the general inconvenience to the public is not applicable in India.
A suit seeking relief in respect of public nuisance is maintainable although sanction of the Advocate-General as it obtained prior to the Amendment Act, 1976, or the leave of the court, had not been obtained as required by S. 91, C.P.C., if the plaintiff proved special damage. Special damage is that damage which by reason of a nuisance would be suffered by some individual beyond what is suffered by him in common with other persons affected by that nuisance.
Award of damages for previous suit improper:
Where suit for declaration and injunction against nuisance as in representative capacity and another application to treat suit to be instituted under Section 91 were
rejected, held that as there was no suit before Court for trial and no written statement was filed the question of defendants claiming damages will not arise.
Article 91 Insubordinate Conduct Toward Warrant Officer, Noncommissioned Officer, or Petty Officer
This article applies to persons accused of disrespecting a warrant officer, noncommissioned officer or petty officer.
There are three instances in which service members shall come under the purview of Article 91 and face court martial:
- striking or assaulting a noncommissioned officer, warrant officer or petty officer, or
- willfully disobeying the lawful order of a noncommissioned officer, warrant officer, or petty officer, or
- treating a noncommissioned officer, warrant officer, or petty officer with contempt or disrespectful language
Elements and Explanation of Assault
The following four elements define the article and must be investigated to gain a fair assessment of the case:
a. The accused was an enlisted service member or warrant officer
b. The accused attempted to inflict bodily harm on the officer or struck him/her
c. The attempt or action on the victim occurred when he/she was performing his official duties
d. The accused was aware, at the time, that the victim was a warrant, noncommissioned or petty officer
Elements A and D also apply to 'willful disobedience' and 'contempt or disrespect' aspects of Article 91. In all three cases, the accused should have performed or attempted to perform the wrongful action (assault, disobedience or disrespect) when the officer was executing his/her office.
The nature of assault is also a determining factor in Article 91. In this regard, the assault can be of three types. Assault by attempt refers to an attempt to inflict bodily harm in a way that goes beyond mere preparation. Assault by offer is an intentional or culpably negligent act that allows the victim to reasonably believe that he/she will be subject to bodily harm. Culpable negligence is a gross or deliberate disregard for foreseeable consequences. It goes beyond simple negligence where there is a failure to use due care. Assault consummated by a battery refers to unlawfully and intentionally inflicting violence or force.
Elements and Explanation of Willful Disobedience
To be found guilty of willful disobedience, it should be established that the accused intentionally disobeyed a certain lawful order from the petty, warrant or noncommisioned officer in question. He/she should also have a duty to obey the order.
The order must have been directed personally to the accused, who must be aware that he/she is receiving it from a petty, noncommisioned or warrant officer. The order must be understandable, and the method of delivering the order is not important.
Elements and Explanation of Contempt or Disrespect
Contempt includes all rude and insulting conduct directed at a noncommisioned, petty or warrant officer. It also includes the act of attributing qualities like worthlessness and disreputableness to the officer. Disrespect can be conveyed through words or acts that demonstrate rudeness, indifference, disdain, silent insolence and impertinence towards the officer and within his/her sight and hearing.
The elements under 'contempt or disrespect' include:
- Doing or failing to do certain acts or directing certain behavior at the officer, as alleged
- Using certain language as alleged
- Being disrespectful to the rank and state of the officer by performing the alleged actions or engaging in the alleged behavior
Defense under Article 91
Divestiture of status can be cited as a defense under Article 91. When the evidence suggests that the victim acted in a way that took away his/her status as a petty, noncommisioned or warrant officer in the execution of office, a careful examination is merited. If it is believed beyond a reasonable doubt that the officer did not behave in a manner unbecoming of his/her rank and did not abandon his/her status, the accused shall be deemed guilty.
- The maximum punishment for assault is dishonorable discharge and forfeiture of all pay and allowances. Depending on whether the victim in question is a noncommissioned/petty officer, superior noncommisioned/petty officer or warrant officer, the confinement can be one year, three years or five years respectively.
- The maximum punishment for willfully disobeying the lawful order of a petty or noncommissioned officer is dishonorable discharge, total forfeiture and a one-year jail term. The same applies for willfully disobeying a warrant officer, but the confinement period in this case is two years.
- The maximum punishment for contempt and disrespect to a warrant officer is bad-conduct discharge, total forfeiture and 9-month confinement. When the victim is a superior noncommisioned/petty officer, total forfeiture, bad-conduct discharge and 6-month confinement shall be imposed. In case of other petty or noncommisioned officer, confinement of three months and forfeiture of two-thirds of monthly pay for a period of three months, shall be imposed.