By Simranpreet Kaur
Student at UILS Punjab.
The word tort denotes ‘something that is not lawful’. Tort is a civil wrong but all civil wrongs are not tort. We call tort as ‘law of torts’ because there are number of torts. One such civil wrong or tort is tort of nuisance. Every person has right to use and enjoyment his/her property. To maintain this right, the concept of nuisance has been there. It protects right of person to use or enjoy property from any unlawful interference. Nuisance is not just a civil wrong but this concept also concerns the area of IPC. The suit of nuisance be filed in either of these areas or in both depending upon amount of damage caused and decree of wrong committed. Nuisance is not confined to its theoretical concept but its practical applicability is seen in many English cases as well as Indian cases. Its application shows how important role is being played by essential features of nuisance and how certain factors decide any situation as nuisance. Various factors like malice, sensitivity and locality plays crucial role in deciding any act as nuisance.
The word nuisance has been derived from old French word “nuire” which means “to cause harm, or to hurt, or to annoy”. The Latin word for nuisance is “nocere” which also means “to cause harm”. Various thinkers gave definition of nuisance.
Stephen, “nuisance is anything done to the hurt or annoyance of the lands, tenement or hereditaments of another, and not amounting to a trespass”.
Blackstone, “nuisance as some thing that worketh hurt, inconvenience or damage”.
Winfield, “nuisance is incapable of exact definition but for the purpose of law of tort, it may be described as unlawful interference with a person’s use or enjoyment of land or of some right over, or in connection with it”.
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.
DISTINCTION BETWEEN NUSIANCE AND TRESPASS
Nuisance and trespass are often confused, they should be distinguished from each other.
Trespass is the direct physical interference with plaintiff’s possession of land through some material or tangible object.
Nuisance is unlawful interference with person’s use or enjoyment of land, or some right over, or in connection with it.
Apart from the definition, the action for both terms are also different. The trespass is actionable per se but in nuisance, special damage has to be proved.
Both the terms coincide each other; some kinds of nuisance being also continuing nuisance. The example cited below draws a clear distinction between both the terms. Planting a tree on somebody else’s land is trespass but when a tree is planted on one’s own land and roots and branches project into or over somebody else’s land is nuisance.
KINDS OF NUISANCE
- Public nuisance
- Private nuisance
Section 3 (48) of general clauses act, 1897 declares public nuisance to be as defined by Indian Penal Code. According to section 268 of IPC, “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 personas who may have occasion to use any public right”.
It is interference with the right of public in general and is punishable as an offence. Public nuisance is a crime. Some examples include unlawfully digging a pit, blocking public road, unregulated putting up of posters or banners on private property etc.
- K. Ramakrishnan and anr. V state of Kerala and ors.
Facts- In this case, petitioner sought orders to prevent the smoking of tobacco in any form in public places and to order the state to take measures to prosecute and punish people guilty of smoking in public places and to treat such smoking as nuisance under IPC.
Judgement- The court held that smoking in public places was noxious to health of the people. It was also held that public smoking of tobacco in any form be it cigarettes, cigars, beedis or otherwise is illegal, unconstitutional.
- Kachrulal Bhagirath Agrawal and ors. v. state of Maharashtra and ors.
Facts- the accused was wholesaler dealer in dry chillies. He used to store it in the godown. The chillies used to load and unload for storing it and distributing among customers. It was claimed that loading ad unloading of red chillies caused inconvenience to health of residents of locality, such as irritation to skin, asthma etc.
Judgement- it was held by court that occupation of the accused caused inconvenience and was hazardous for health of the residents. The act affected the general public at the large, so it was declared by court that this act was indeed a public nuisance.
It is basically a tort of nuisance. To constitute a tort of nuisance, some essentials are required:
- Unreasonable interference
- Interference with use or enjoyment of land
If the interference is unreasonable, no defence of public good be given. The reasonableness also varies from different places. One such case is of Radhey shyam v. Gur prasad. In this case, Gur prasad along with others filed a case against radhey shyam for permanent injunction to restrain from installing and running flour mill in the premises. It was alleged that mill would have caused nuisance to plaintiff who occupied 1st floor of the same premises. It was held that mill would interfere with physical comfort of plaintiff and would amount to nuisance. The court imposed injunction against defendant installing the mill.
Interference with use or enjoyment of land include either injury to the property itself or to comfort or health of occupants of certain property. An unauthorized interference can be done through some tangible or intangible object. In case of St. Helen’s smelting co. v. tipping, the fumes from defendant’s company’s work damaged trees and shrubs of plaintiff. The damage was to the property, so the court held the defendant liable. Injury to health or comfort does recognise trifling matters. The test is how an average person residing in same area would respond.
For an action in nuisance, actual damage needs to be proved. In case of public nuisance, plaintiff can bring up an action in tort, only when there is some special damage. In case of ushaben v. Bhagya Laxmi Chitra mandir, the plaintiff sued defendant for permanent injunction to restrain them from showing film ‘jai Santoshi maa’. Plaintiff alleged that the way goddess Lakshmi, Parvati and Saraswathi were depicted, hurt his religious sentiments. As hurting religious sentiment was not an actionable wrong, no damage could be proved; the court held that defendant wasn’t liable.
FACTORS WHICH DETERMINE UNREASONABLENESS
- Sensitive Plaintiff
An act which is reasonable can’t become unreasonable and actionable, merely due to the fact that plaintiff is sensitive. For example, if some noises do not disturb an ordinary person but only disturbs the person in sleep or work due to his/her sensitiveness, it does not constitute a nuisance. Even the exceptionally delicate trade also doesn’t increase liability of any defendant.
Case law- Heath v. Mayor of Brighton
In this case, the plaintiff prayed for an injunction to restrain buzzing noise from defendant’s power station. It was held by court that the noise did not cause any annoyance to any other person nor could it distract attention of any person attending the church. Here, the plaintiff is sensitive.
- State of Affairs
The act of nuisance is generally a continuous wrong. The isolated acts of escape can also entitle plaintiff the damages. The wrongful escape can be either continuous, intermittent or even isolated. Any of these sates of affairs, is actionable.
Case law– Dollman v. Hillman Ltd.
In this case, a piece of fat was lying on the pavement outside defendant’s shop, who was a butcher. The plaintiff slipped on the fat and got injured by defendant’s isolated act. The defendant was held liable for nuisance.
A lawful act can become nuisance if driven by an evil motive.
Case law- Christie v. Davey
In this case, the plaintiff has business of breeding silver foxes. These foxes get nervous during breeding season. If they get disturbed by loud noise, they may not breed, may miscarry or kill their own young ones. The defendant’s land was adjoining plaintiff’s land and he maliciously caused guns to be fired on his own land, where he was entitled to do so. The court held that the defendant was liable for nuisance and imposed injunction on the act and also made plaintiff recover damages.
The defences available for nuisance can be categorized as effectual and ineffectual defences. Effectual defence are valid in the court of law.
- Prescriptive right- if a person has continued to do any activity on land of another for 20 years or more, he acquires a legal right by prescription, to continue that act in future as well. The essence of prescription is described under section 26 of the limitations act and section 15 of easement act.
Illustration- A used brick grinding machine on his plot for 20 years adjoining B’s plot and B never complained. After 20 years, B can’t complain it as nuisance because A has got this right by prescription.
- Statutory authority- an act done under statutory authority is complete defence. Here, the statute authorises doing of particular act, all the remedies are taken away, provided that necessary reasonable precautions were taken. The statutory authority may be either conditional or absolute. Illustration- The railway company won’t be liable, if in spite of due care, the sparks from the engine set fire to the adjoining property.
- Nuisance due to act of others- if the act done by two or more persons, acting independently of each other, cause nuisance and if an action is brought against one of them, the defence that act done alone would not amount to nuisance won’t be acceptable in court of law.
- Public good- the plaintiff can’t take the defence that the act done by him was beneficial to the general public. One such case is of R v. Train where court held that there is no defence that running of trams is beneficial to the general public.
- Reasonable care- while performing the act, reasonable care was taken is no defence. In rapier v. London tramways co., the defence that maximum possible care was taken to prevent nuisance was rejected by court.
- Volenti non fit injuria- It is no defence that plaintiff voluntarily came to place of nuisance. In bills v. hall, it was held by court that by mere fact that business has been there for continuous 3 years and plaintiff came to the place is no defence.
- Injunction- it is a judicial order to restrain person from doing an act or continuing to do an act which invades or violates the legal right of the plaintiff. When it is confirmed, it takes form of permanent injunction.
Illustration- A is storing red chillies in his godown. The loading and unloading of chillies cause discomfort to the residents of the vicinity. B files suit of nuisance and court imposed permanent injunction against the storing, loading and unloading of chillies.
- Damages- It is being offered to aggrieved party in order to compensate the wrong committed. This not only compensate the aggrieved party but also make the defendant realise his/her mistake. This is done to deter any other individual to commit the wrong.
- Abatement- Abatement of nuisance means the removal of a nuisance by the party who has suffered, without any legal proceedings. This remedy is not acceptable by the law. But this kind of remedy can be available under certain circumstances. It can be exercised within a reasonable time and usually requires notice to the defendant. If he fails to act, it would be reasonable enough to employ the abatement. The plaintiff will be liable if his actions go beyond reasonable measures.
Illustration- A and B are neighbours. A’s tree is poisonous and when it overgrows, its branches fell on B’s backyard. In order to prevent branches to fell on his backyard, he gives prior notice to A and cut those branches. In this case, if he without bringing in notice of A cuts down the branches, he would go beyond reasonability.
This article emphasised on concept of nuisance, both as civil as well as criminal wrong. The essentials of nuisance helped us to distinguish it from other wrongs. There have been certain defences, some being effectual and other being ineffectual in court of law. There have also been some remedies able to defendant to recover damages either in form of compensation or injunction.