Nuisance – By SOHINI BISWAS

INTRODUCTION

The word “nuisance” has been derived from the Old French word “nuire” which means “to cause harm, or to hurt, or to annoy”. The Latin word for nuisance is “nocere” which means “to cause harm”. Nuisance is an injury to the right of a person’s possession of his property to undisturbed enjoyment of it and results from an improper usage by another individual.

Definitions by Various thinkers:

According to Stephen, nuisance is anything done to the hurt or annoyance of the tenements of another, or of the lands, one which doesn’t amount to trespass.

According to Salmond, nuisance consists in causing or allowing to cause without lawful justification, the escape of any deleterious thing from one’s land or from anywhere into land in possession of the plaintiff, such as water, smoke, gas, heat, electricity, etc.

ESSENTIAL ELEMENTS OF NUISANCE

1. Wrongful act

Any act which is done with the intention to cause the infringement of the legal rights of another is considered to be a wrongful act.

2. Damage or loss or annoyance caused to another individual.

Damage or loss or annoyance must be such which the law should consider as a substantial material for the claim.

KINDS OF NUISANCE

There are two kinds of nuisance:

1. PUBLIC NUISANCE

A public nuisance is a crime whereas a private nuisance is a civil wrong. A public nuisance is interference with the right of the public in general and is punishable as an offense.

Section 268 of IPC defines “Public nuisance – 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.”

Obstructing a public way by digging a trench or constructing structures on it are examples of public nuisance. Although such obstruction may cause inconvenience to many persons, but none can be allowed to bring a civil action for that, otherwise, there may be hundreds of actions for a single act of public nuisance. To avoid a multiplicity of suits, the law makes public nuisance only an offense punishable under criminal law.

In certain cases, when any person suffers some ‘special’ or ‘particular damage’, different from what is inflicted upon the ‘public as a whole’, a civil right of action is available to the person injured. What is otherwise a public nuisance, also becomes a private nuisance so far as the person suffering special damage is concerned. The expression “special damage” in this context means damage caused to a party in contradiction to the public at large.

For example, digging a trench on a public highway may cause inconvenience to the public at large. No member of the public, who is thus, obstructed or must take a diversion along with others, can sue under civil law. But if any one of them suffers more damage than suffered by the public at large, e.g., is severely injured by falling into the trench, he can sue in tort. To sustain a civil action in respect of a public nuisance, proof of special and damage is essential. The proof of special damage entitles the plaintiff to bring a civil action for what may be otherwise a public nuisance.

Dr. Ram Raj Singh vs. Babulal AIR 1982 All. 285

In this case, the Defendants created a brick grinding machine adjoining the premises of Plaintiff, who was a medical Practitioner. The brick grinding machine-generated dust, which further polluted the atmosphere. The dust entered the consulting chamber of the Plaintiff and caused physical inconvenience to him and his patients, and their red coating on clothes, caused by the dust, could be visible. It was held that special damages to the plaintiff had been proved and a permanent injunction was issued against the defendant restraining him from running his brick grinding machine there.

Winterbottom vs. Lord Derby (1857) L.R. 2 Exch. 316

In this case, the Defendant’s agent blocked a public footway. Plaintiff brought an action alleging that sometimes he had to go by another route and sometimes he had to incur some expenses in removing the obstruction. Held, he could not recover as he had not suffered more damage than could have been suffered by other members of the public. Kelley, J., observed, “if we were to hold that everybody who merely walked up the obstruction, or who chose to incur expenses in removing it might bring his action for being obstructed, those would do not limit to the number of actions which might be brought.”

In one of the recent cases, namely, Anil Bhatia vs. Government of NCT of Delhi, AIR. 2015 Del. 159., it was decided that unregulated putting up of posters/ banners on private property, even if on one’s property is held to be a public nuisance. The Delhi Prevention of Defacement of Property Act, 2009, prohibited the putting up political posters/banners on private property without proper permission. Holding the Act as constitutionally valid, the Delhi High Court said the requirement of taking permission for putting up posters/banners/hoardings even on one’s property but visible to others and affecting the view of and becoming an eyesore for others, could not be said to be unreasonable.

2. PRIVATE NUISANCE

Private Nuisance is that kind of nuisance in which a person’s use or enjoyment of his property is ruined by another. It may also injuriously affect the owner of the property by physically injuring his property or by affecting the enjoyment of the property. Unlike public nuisance, in private nuisance, an individual’s usage or enjoyment of property is ruined as distinguished from the public or society at large. The remedy for private nuisance is a civil action for damages or an injunction or both.

ELEMENTS WHICH CONSTITUTE PRIVATE NUISANCE:

The interference must be unreasonable or unlawful. It is meant that the act should not be justifiable in the eyes of the law and should be by an act which no reasonable man would do.

Such interference has to be with the use or enjoyment of land, or of some rights over the property, or it should be in connection with the property or physical discomfort.

There should be see able damage to the property or with the enjoyment of the property to constitute a private nuisance.

Rose v. Miles (1815) 4M &S. 101

The defendant had wrongfully obstructed a public navigable creek which obstructed the defendant from transporting his goods through the creek due to which he had to transport his goods through land because of which he suffered extra costs in the transportation. It was held that the act of the defendant had caused a public nuisance as the plaintiff successfully proved that he had incurred loss over other members of the society and this he had a right of action against the defendant.

A nuisance may be in respect of either property or physical discomfort

I. Property

In the case of a nuisance concerning the property, any sensible injury to the property will be enough to support an action for the damages.

II. Physical discomfort

In a suit of nuisance arising out of physical discomfort, there are two essential conditions required.

· In excess of the natural and ordinary course of enjoyment of the property.

The usage by the third party should be out of the natural course of enjoyment from one party.

· Interfering with the ordinary conduct of human existence.

The discomfort should be of such a degree that it would affect an individual in the locality and people would not be able to put up or tolerate the enjoyment.

Radhey Shyam vs. Gur Prasad AIR 1978 All 86

In Radhey Shyam v. Gur Parsad, Gur Parsad and another filed a suit against Radhey Shyam and others for a permanent injunction to restrain them from installing and running a flour mill in their premises, It was alleged that the said mill would cause a nuisance to the plaintiffs, who were occupying the first-floor portion of the same premises since the plaintiffs would lose their peace on account of rattling noise of the flour mill and thereby their health would be adversely affected. It was held that substantial addition to the noise locality, by the running of the impugned machines, seriously interfered with the physical comfort of the plaintiffs, and as such, it amounted to nuisance, and the plaintiffs were entitled to an injunction against the defendants.

DEFENCES

Several defences have been pleaded in an action for nuisance. Some of the defences have been recognized by the courts as valid defences and some others have been rejected.

I. EFFECTUAL DEFENCES

A. PRESCRIPTIVE RIGHT TO COMMIT NUISANCE

A prescription is a title acquired by use and time and which is allowed by the law, a person claims any property because his ancestors have had possession of the property by law.

Prescription is a special kind of defence, as, if a nuisance has been peacefully and openly been going on without any kind of interruption then the defence of prescription is available to the party. On the expiration of this term of twenty years, the nuisance becomes legalized as if it had been authorized in its commencement by a grant from the owner of the land.

The essence of prescription is explained in Section 26 of the limitations act and Section 15 of the Easements Act.

There are three essentials to establish a person’s right by prescription, these are

Use or enjoyment of the property: The use or enjoyment of the property must be acquired by the individual by law and the use or enjoyment must be done openly and peacefully.

Identity of the thing/property enjoyed: The individual should be aware of the identity of thing or property which he or she is peacefully or publicly enjoying.

It should be unfavourable to the rights of another individual: The use or enjoyment of the thing or property should be of such a nature that it should be affecting the rights of another individual thus causing a nuisance and even after knowing of such a nuisance being caused there must’ve been no action taken against the person causing it for at least twenty years.

B. STATUTORY AUTHORITY

· When a statute authorizes the doing of a particular act or the use of land in a way, all the remedies whether by action or indictment or charge, are taken away. Provided that every necessary reasonable precaution has been taken.

· The statutory authority may be either absolute or conditional.

· When there is an absolute authority, the statute allows the act, and it is not necessary that the act must cause a nuisance or any other form of injury.

· Whereas in the case where there is a conditional authority, the state allows the act to be done only if it can be done without any causation of nuisance or any other form of injury.

II. INEFFECTUAL DEFENCES

A. NUISANCE DUE TO ACTS OF OTHERS

Sometimes, the act of two or more persons, acting independently of each other, may cause nuisance although the act of any one of them alone would not be so. An action can be brought against any one of them and it is no defence that the act of the defendant alone would not be a nuisance, and the nuisance was caused others had also acted in the same way. If there is a nuisance by hundred people leaving their wheelbarrows in a place and a single wheelbarrow by itself could not have caused nuisance, an action can be brought against those hundred persons and none of them can be allowed to take the defence that his acts by itself could not have caused any damage to the complainant.

B. PUBLIC GOOD

It is no defence to say that what is a nuisance to a particular plaintiff is beneficial to the public in general, otherwise, no public utility undertaking could be held liable for the unlawful interference with the rights of individuals. A reference to the case; Shelter vs City of London Electric Lighting Co. (1895) 1 Ch. 287 is made to illustrate this point. In this case, while the construction of an electric powerhouse was going on, violent vibrations were resulting in damage to the plaintiff’s house. In an action for injunction by the Plaintiff, the defence pleaded was that if the building was not constructed, the whole of the city of London would suffer by losing the benefit of light to be supplied through the proposed powerhouse. The plea was rejected, and the court issued an injunction against the defendants.

C. REASONABLE CARE

The use of reasonable care to prevent nuisance is generally no defence. In Rapier vs. London Tramways Co. (1893) 2 Ch. 588, considerable stench amounting to nuisance was caused from the defendants ‘stables constructed to accommodate 200 horses to draw their trams. The defence that maximum possible care was taken to prevent the nuisance failed and the defendants were held liable. If an operation cannot, by any care and skill, be prevented from causing a nuisance. It cannot lawfully be undertaken at all, except with the consent of those injured by it or by the authority of a statute.

D. PLAINTIFF COMING TO NUISANCE

It is no defence that the plaintiff himself came to the place of the nuisance. A person cannot be expected to refrain from

REMEDIES FOR NUISANCE

There are basically three kinds of remedies available, and these are as follows:

1. Injunction

An injunction is a kind of a judicial order restricting a person from doing or continuing an act that might be threatening or trespassing the legal rights of another. It may be in the form of a temporary injunction which is granted for a limited period which may get reversed or confirmed. If it is confirmed, then it exerts the form of a permanent injunction.

2. Damages

The damages may be granted in terms of compensation to the aggrieved party, these could be nominal damages. The damages to be paid to the aggrieved party are decided by the statute and the scope of the damages is not just compensating the individual who has born a loss but also making the defendant realize his mistakes and discourage him from repeating the same wrong done by him.

3.Abatement

Abatement of nuisance means the removal of a nuisance by the party who has suffered, without any legal proceedings. This kind of remedy is not spared by the law. But is feasible under certain circumstances.

This privilege must be executed within a reasonable time and ordinarily requires notice to the defendant and his failure to act. Reasonable for may be used to employ the abatement, and the plaintiff will be liable if his actions go beyond reasonable measures.

Example: Ace and Beck are neighbours; Beck has a poisonous tree on his land which over time outgrows and reaches the land of Ace. Now Ace has every right to cut that part of the tree which affects his enjoyment of his land with prior notice to Beck. But if Ace goes to Beck, land without his consent, and chops off the entire tree which then falls on the land of Beck, then Ace shall be in the wrong here as his action taken would be beyond reasonableness.

CONCLUSION

The concept of nuisance arises commonly in everyone’s daily life, the Indian courts have borrowed quite a lot from the English principles as well as from the decisions of the common law along with creating their precedents. This has helped the concept of nuisance in the field of law develop quite extensively and assures the fairness and wellbeing of all the parties which may be involved such as in the case of Private nuisance, the party, which is being affected, as well as, in the case of public nuisance, where the society at large is being affected.

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