Nuisance

Meaning According to Black Stone, Nuisance is something that causes damage, inconvenience and annoyance to the plaintiff. Sir Federick Pollock has defined nuisance as a wrong done to a person by unlawfully disturbing him in the enjoyment of his land, or in some cases in the exercise of a common right. The interference may be by way of noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavation or disease producing germs etc.

Meaning Any unlawful interference with the health, safety or comfort may amount to nuisance. E.g. Pollution by oil; noxious/harmful fumes; offensive smell from premises used by animals; noise from industry; high volume of loudspeakers etc. Dr. Salmond defines nuisance as a wrong which causes or allows without lawful justification, the escape of any harmful thing from a person’s land or from elsewhere into land in possession of plaintiff.

Characteristics Tort of Nuisance is generally a continuing wrong which relates to unlawful interference with a person’s use or enjoyment of land. Nuisance is both, a crime as well as a tort. It is an injury to the right of a person (eg., right of way or right of use of water) in possession of the property to undisturbed enjoyment of it. This may be actionable without the proof of damage. It is actionable only if it causes both damage & injury (eg., throwing garbage in the society; Increased volume of loudspeakers; polluting the environment etc.)

Characteristics Halsey v. Esso Petroleum Co. Ltd., (1961) 1 WLR 683) defendants were dealing with fuel oil, acid ashes containing sulphate were emitted & were visible falling outside plaintiff’s house. The acid ashes had damaged plaintiff’s clothes hung out in his garden, damaged the paint of his car which was kept outside the door of his house. It even emitted a pungent & nauseating smell of oil which was enough to effect the health of a person, though plaintiff did not suffer any injury to his health from that smell.

Characteristics During the night, the noise from the boilers disturbed the plaintiff in his sound sleep. The plaintiff brought a suit for all the nuisance created by the defendant. The court held the defendant liable for nuisance.

Characteristics In Hollywood Silver Fox Farm Ltd. v. Emmett, (1936) 2 KB 408 (CA) the defendant sent his son to fire a gun loaded with black powder on the border of his land near vixen’s/fox house. When objected by plaintiff, defendant said that gun firing was for the purpose of shooting rabbits.

Characteristics The gun shot created horror among the foxes & disturbed them, for which plaintiff filed a suit complaining of nuisance. Defendant pleaded that he had a right to use his land as he liked & therefore, his act did not amount to nuisance. But the court rejected his contention & held him liable for nuisance observing that a person should use his land as not to interfere with the enjoyment of land by another person.

Characteristics In Ushaben Navinchandra Trivedi v. Bhagyalaxmi Chitra Mandir, (AIR 1978 Guj. HC 13) the Gujarat HC held that the main characteristic for nuisance is that it should be a wrongful act which causes injury or damage or annoyance or discomfort to others.

Categories of Nuisance

Categories of Nuisance Public Nuisance Private Nuisance 1) Public Nuisance: - It is one which materially affects the reasonable comfort & convenience of life of a sizable class of public or the society at large, e.g., high volume of loudspeakers; to create a false terror of bomb. Activities like stone quarrying, blasting of stones, dust noise, vibrations all cause nuisance to the society.

Public Nuisance It is a tort as well as a crime under Section 268, IPC, which defines “Public Nuisance”: - as any act done or any illegal omission done by a person, which causes any common injury, danger or annoyance to the public or 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.

Public Nuisance In Municipal Council, Ratlam v. Virdhi Chand, AIR 1980 SC 1622 There existed a public nuisance in a locality due to open drainage, heaps of dirt, pits & public excretion by human beings for want of lavatories & consequently breeding of mosquitoes. When a suit was filed for public nuisance, the SC order the Municipality under Section 123, Municipality Act to take affirmative action to remove public nuisance.

Public Nuisance Section 133, Code of Criminal Procedure, 1973 (Cr.P.C.) empowers the District Magistrate to pass order for removal of public nuisance. In Ram Avtar v. State of UP, AIR 1962 SC 1794 the appellant carried a trade of auctioning vegetables in a private house. The persons who brought vegetables for sale kept their carts on the public road & caused obstruction to traffic. The noise of auction was a cause of discomfort for persons residing in the locality.

Public Nuisance The Magistrate by an order restrained the auctioning of vegetables in the private house & this order was upheld by the HC. But the Supreme Court set aside the order & judgment of HC & held that a trade like auctioning of vegetables has to be carried on as necessary for the well being of the community, some amount of noise has to be borne by the public & therefore, a little discomfort, if in the interest of public at large must be tolerated by the residents of that particular locality.

Public Nuisance It is an interference with the rights of the public in general & is punishable as an offence. Eg., obstructing a public road by digging a trench/gutter on it. Such obstructions may cause inconvenience to several persons who pass through the road, but each one of them cannot be allowed to bring a civil suit for the same because otherwise there will be multiplicity of cases filed in the court for the same cause of action. Therefore, to avoid this, law makes public nuisance an offence under S.268, IPC

Public Nuisance However, where different individuals suffer particular type of injury, like someone falling in the trench/hole dug on the road, then he can file a suit against the defendant. In Campbell v. Paddington Corporation, (1911) 1 KB 869) plaintiff owned a building in London to watch the funeral procession of King Edward VII passing from the highway just in front of the plaintiff’s building. Taking advantage of location, plaintiff accepted payments from certain people & permitted them to occupy seats at 1st & 2nd floor windows of her building o have a full view of the same.

Public Nuisance But a few days before the procession, defendant corporation erected a stand on the highway in front of the plaintiff’s building. The stand obstructed the view of the guests & plaintiff was deprived of further payments. Thus, plaintiff sued defendant corporation for public nuisance claiming special damages due to construction of stand on the highway. The court held defendant liable & ordered the corporation to compensate the plaintiff for the amount which he lost due to cancellation of contracts with persons who had booked seats in her building.

Remedies A criminal case can be instituted against the wrongdoer under Section 278, IPC, which provides that “whoever voluntarily makes the atmosphere in any place noxious to health of persons dwelling there or carrying on business in the neighbourhood or passing along a public way, shall be punished with fine which may extend to Rs 500.” A civil suit can be filed by plaintiff claiming special damages or a suit for injunction may be filed by (a) Advocate General or (b) with the leave of the court, by 2 or more persons for public nuisance.

Private Nuisance It may be described as unlawful interference with a person’s use or enjoyment of land, or some right over it. Essentials of Private Nuisance: - a) unlawful or unreasonable interference or encroachment on a neighbour’s land; b) interference with the use and enjoyment of the land; c) direct damage should have been caused. Infringement of an easement right, such as obstruction of a right of way or blocking a right to air or light, gives rise to Private Nuisance.

Private Nuisance 1) Unreasonable Interference: - Every slight and trivial annoyance is enforceable under the tort of private nuisance. The fault to qualify as private nuisance, must primarily interfere with the use or enjoyment of one’s land and must be unreasonable in its effect on the plaintiff.  E.g., destruction of crops, blasting of mines damages the house of plaintiff 2) Interference with the use and enjoyment of the land may be by two forms: (i) by causing damage to property of plaintiff; (ii) injury to comfort or health of the residents of a certain property.

Private Nuisance Any unauthorized use of property of plaintiff, through some object, which causes damage to plaintiff’s property, will be actionable as nuisance. To allow escape of roots of a tree to neighbour’s land amounts to nuisance. In Sadashiv Chetty v. Rangappa Raju, (43 Ind Cases 871 Madras HC) defendant’s oil mill emitted obnoxious smell & caused unbearable noise which interfered with near-by resident’s peaceful enjoyment of their lands. When sued, the court held defendant liable for causing nuisance & directed him to prevent the cause of nuisance by taking adequate measures.

Remedies Abatement of Nuisance by the plaintiff himself Damages Injunction

Defences 1) The defendant may show that the right to continue the alleged nuisance has been acquired by prescription (a method of acquiring a non-possessory interest in the land through long & continuous use of the land) as it has been peacefully enjoyed by the defendant as a right continuously for more than 20 years (Section 8 & 13, Indian Easements Act, 1882). 2) It is a valid defence for defendant to show that the said nuisance is under the terms of a grant or licence, * e.g., sugar factory polluting environment, established under a licence.

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