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NUISANCE[1]

Table of Contents

QUESTION BANK

Q.1. What is a nuisance? Distinguish between public nuisance and private nuisance. What are the remedies available for it?

Q.2. Under what circumstances a private person can have a right of action in respect of public nuisance?

Q.3. What are the essentials of a tort of ‘Nuisance’?

Q.4. Define ‘Nuisance’ and state its ingredients and types.

SHORT NOTES

Public Nuisance.

SYNOPSIS

I] Definition: –

II] Kinds of Nuisance-

A) Public Nuisance: –
a) Suit by a private individual for public nuisance:
Special damage to him-
Direct Injury: –
Such injury must be substantial: –
b) Remedies for public Nuisance: –
Civil Remedies-
Criminal Sanctions: –
B) PRIVATE NUISANCE: –
a) Elements of Private nuisance: –
b) Kinds of Private Nuisance: –
Damage to property: –
Physical Discomfort: –
c) Who can sue for private nuisance: –

The following persons are entitled to sue: –

The owner: –
The occupier: –
The reversioner: –

III. WHO IS LIABLE FOR NUISANCE: –

The creator of nuisance: –
An occupier: –
Landlord: –
REMEDIES: –
Abatement: –
Damages: –
Injunction: –
PUBLIC AND PRIVATE NUISANCE DISTINGUISHED-
Nature of the right violated: –
Who can sue: –
Acquisition of right of nuisance: –
Abatement of nuisance: –
Remedies available: –
Nuisance actionable in civil or Criminal Court-
DEFENCES: –
Grant: –
Prescription.
Statutory authority.

I. Definition: –

The word ‘nuisance’ is derived from the French word ‘nutre’ and the Latin word ‘nocere’, which means ‘to do hurt or to annoy’.

Generally, “Nuisance” is defined as “to do hurt or annoyance to the lands, tenements or hereditaments of another and not amounting to trespass”.
According to Winfield, nuisance means an “unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it”.
According to Blackstone, “nuisance is something that ‘worketh hurt, inconvenience or damage.’[2].

Acts interfering with comfort, health, or safety are examples of interference. The interference may be noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavations, disease-producing germs, etc.

II. Kinds of Nuisance-

A nuisance may be of the following two kinds: –

A) Public Nuisance[3]: –

Definitions-

1) According to S. 268 I.P.C., “Public nuisance is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general, who dwells 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”.

2) Generally, “A public or common nuisance is one which affects the public and is an annoyance to the people generally who comes in contact with it”.

Thus, keeping a common gaming house or disorderly inn, obstructing a highway, or making it dangerous for traffic would come within the category of public nuisance.

‘Public nuisance’ consists not only of acts that interfere with definite public rights (such as the right to use public thoroughfare) but also those which endanger the health, safety, or comfort of the public. Examples of public nuisance are noise, escape of noxious vapours, gases, fumes, or any harmful thing affecting the public’s health.

Public nuisance can only be the subject of one action; otherwise, a million suits might ruin a party. Public nuisance does not create a civil cause of action for any person. In the leading case of nuisance

Attorney-General Vs. P.Y.A. Quarries Ltd[4]

Facts: – Certain quarry owners so conducted their operations that neighbouring householders were discomforted by vibration from explosions and by the dust emanating from the quarry in dry weather.

Court Held: – that the nuisance is a public nuisance if, within its sphere (which is the neighbourhood), it materially affects the reasonable comfort and convenience of life of a class of subjects, and the question of whether the number of persons affected is sufficient to constitute class is one of the facts.

a) Suit by a private individual for public nuisance: –

Public nuisance does not create a civil cause of action for any person. To enable a private individual to bring an action for damages in respect of a public nuisance, he must prove: –

1. Special damage to him-

That he has suffered a particular injury for himself beyond that, what is suffered by the public generally.

In Dr. R.B. Singh Vs. Babulal[5]

Facts: – A large quantity of dust from the neighbouring brick powdering mill entered in the doctor’s consulting room, and a visible thin red coating on clothes resulted. The dust was a public hazard that was injuring the health of human beings.

The court held that it was special damage suffered by a doctor; therefore, he succeeded in a public nuisance case.

2. Direct Injury: –

Such a special injury must be direct and not merely consequential, e.g., where one way is obstructed, but another is left open; in such a case, the private and particular injury is not sufficiently direct to give a cause of action.

3. Such injury must be substantial: –

The injury must be shown to be of substantial character and not a slight one. Thus, in order to entitle a person to maintain an action for damage caused by that which is a public nuisance, the damage must be particular, direct, and substantial. The object of this rule is to avoid the multiplicity of litigation.

b) Remedies for public Nuisance: –

1. Civil Remedies-

In the case of a public nuisance or other wrongful acts affecting or likely to affect the public, a suit for declaration and injunction or for such other reliefs as may be appropriate in the circumstances of the case may be initiated-

a). by the advocate General; or

b). by two or more persons, with the leave of the Court (even though no special damage is caused to them by reason of that public nuisance or other wrongful act (S. 95 of the C.P.C.)).

2. Criminal Sanction: –

Chapter XIV of the Indian Penal Code and S. 133 to 143 of the Criminal Procedure Code, 1973 prescribe penal remedies for causing a public nuisance.

B) PRIVATE NUISANCE[6]: –

A ‘private nuisance’ is some unauthorised use of a man’s own property, causing damage to the property of another, or some unauthorised interference with the property or proprietary rights of another, causing damage but not amounting to trespass. Private nuisance includes obstruction to light and air, wrongful escape of foul gas or noise, water filth, germs, etc.

In Bradley Vs Gill[7]

Held – A man may become responsible for a nuisance by erecting and working a noisy workshop.

a) Elements of Private nuisance: –

Thus the elements of private nuisance are: –

Unreasonable or unlawful interference;
Such interference is with the use or enjoyment of land or some right over or in connection with the land, and
Damage

b) Kinds of Private Nuisance: –

A private nuisance may be with respect to property or person or physical discomfort.

1. Damage to property: –

In the case of damage to a property, any sensible injury will be sufficient to support an action. The nuisance of this class arises from manufacturing works, drains, etc.

In St. Helen Smelting Co. V[s Tipping[8]

Facts– Fumes from the defendant’s manufacturing work damaged the plaintiff’s trees and shrubs.

Court Held that such damage being an injury to the property gives rise to a cause of action for private nuisance.

2. Physical Discomfort: –

In the case of physical discomfort, the act complained of must be:-

In excess of the natural and ordinary course of enjoyment of the property, that is to say, the interference must be with the enjoyment or use of land.
b) Materially interfering with the ordinary comfort of human existence.

In Soltou V[s De Held

Facts– Constant ringing of the heavy bell in the adjoining house was held to be a private nuisance against which an injunction was to be granted.

c) Who can sue for Private Nuisance?

Private nuisance being unlawful interference with the use or enjoyment of land (or a right over or in connection with it), Plaintiff must prove his title or interest affecting land.

The following persons are entitled to sue: –

1. The owner: –

The owner with possession is always entitled to sue for private nuisance.

2. The occupier: –

The occupier of the land, such as the tenant, can sue for private nuisance.

3. The reversioner: –

If there is a danger of permanent injury to his property, the reversioner can bring an action for nuisance.

III. WHO IS LIABLE FOR NUISANCE: –

1. The creator of nuisance[9]: –

The person who creates a nuisance is always liable for its creation and continuance, even if he is not an occupier of land on which a nuisance has been created.

2. An occupier[10]: –

Where an occupier of land or building fails to repair the premise, whereby a nuisance is created, he will be liable.

In Wringe Vs Cohen[11]

Facts– the defendant’s house, for want of repair, collapsed, damaging the plaintiffs adjoining property.

Held– The defendant was held liable.

3. Landlord[12]: –

Generally, a landlord will not be held liable for nuisance. The occupier or tenant is the proper person to be sued. A landlord is not liable for the nuisance arising during a tenancy unless he has authorized it or it is the necessary consequence for the purpose for which the tenancy was granted.

IV. REMEDIES: –

The following remedies are available to the plaintiff for the defendant’s nuisance.

1. Abatement[13]: –

Abatement means the removal of a nuisance by the party injured. Such removal must be peaceful, without danger to life and limb, and if it is necessary to enter another’s land or property, prior notice should be given.

2. Damages: –

Damages are the second type of nuisance remedy. Every day, the nuisance continues, and a fresh cause of action arises. To which further damages may be recovered.

3. Injunction[14]: –

To obtain an injunction, it must be shown that the injury complained of (as at present or impending) is such as, by reason of its gravity, its permanent character, or by both, cannot be adequately compensated by damages.

V. PUBLIC AND PRIVATE NUISANCE DISTINGUISHED-

There are five points of distinction, viz;

1. Nature of the right violated: –

A public or common nuisance affects the public at large or some considerable portion thereof. A private nuisance affects only one person or a determinate body of persons.

2. Who can sue?: –

Public nuisance does not create a civil cause of action for any private person, except for the three circumstances mentioned above. On the other hand, private nuisance is actionable in the suit of any injured person.

3. Acquisition of right of nuisance: –

While no length of time can legalise a public nuisance, a right to create or continue a private nuisance may be acquired by prescription (considerable long use).

4. Abatement of nuisance: –

While a private nuisance may be abated by the person injured or affected thereby.

He cannot so abate a public nuisance.

5. Remedies available: –

In a public nuisance case, the action is generally for declaration and injunction, whereas in a private nuisance case, an action is for damages.

6. Nuisance actionable in civil or Criminal Court: –

In a public nuisance case, remedies are available to the aggrieved persons in both the Criminal Court and Civil Court.

But in the case of a private nuisance, the remedy available is only in the Civil Court by way of an action for damages.

VI. DEFENCES: –

Following are the defences available to defendants against an action for nuisance:-

1. Grant[15]: –

The nuisance is covered by the grant (allowed as a privilege) and is a good defence against an action for nuisance.

2. Prescription[16].

The right to continue a private nuisance may be acquired as an easement of prescription if it has been peaceably and openly enjoyed as an easement and as of right, without interruption and for 20 years.

3. Statutory authority[17].

When the State has authorized the doing of a particular act or the use of land in a particular way, all remedies, whether civil or criminal, are taken away, provided that every reasonable precaution consisting of the exercise of the statutory power has been taken.

In Vaughan Vs. Taff Vale Rly[18]

Facts– The defendant, who had been authorized by statute to use locomotive engines on their railway, caused a fire by sparks from the engine.

Held- that they are not liable for a fire caused by the escape of sparks from the engine, as they had taken all reasonable measures to prevent the escape of sparks.

However, the liability for a nuisance cannot be avoided when the act authorized by statute is done negligently.

*****

[1] उपद्रव [ बाधा ]

[2] (4) According to Salmond “the wrong of nuisance consists in causing or allowing without lawful justification (but so as to common to a trespass) the escape of any deleterious thing from his land or from elsewhere into land in possession of the Plaintiff, e.g. water, smoke, smell, fumes, gas, noise, heat, vibration, electricity, disease, germs animals, negligence”.

[3] सार्वजनिक उपद्रव [ सार्वजनिक उपद्रव ]

[4] . 1957 All ER.

[5] AIR 1982 All 285

[6] व्यक्तीगत उपद्रव [ व्यक्तिगत उपद्रव ]

[7] 1861

[8] 1865

[9] उपद्रव करणारा [ सरदर्द ]

[10] मिळकत ताब्यात असणारा [आय का स्वामी ]

[11] 1940 K. B.

[12] जमीन मालक [ जमीन का मालिक ]

[13] उपद्रव काढून टाकणे [ विघ्नों का निवारण ]

[14] स्थगिती [ स्थगन ]

[15] अनुदान[प्रदान करणे [ अनुदान देना[प्रदान करना ]

[16] जुनी वहिवाट[वहिवाटीचा हक्क [ पुराना अधिभोग[अधिभोग का अधिकार ]

[17] कायदेशीर अधिकार [ क़ानूनी अधिकार ]

[18] 1860