INTRODUCTION
The term “Nuisance” is derived from the French word “nuire” which is further derived from the Latin word “nocere” which means “to cause hurt or to annoy.” If we consider the meaning of the concept of nuisance in common parlance it is nothing, but an inconvenience to people or others. But in law, this concept has little restrictive meaning as law does not consider “mere inconvenience” as an offense of nuisance Various jurists have defined this concept which helps us to understand the legal perspective of it.
According to Blackstone nuisance is something that “worketh hurt, inconvenience or damage.” The description given by him simply provides us the basic meaning of the concept.
Salmond defined it in a more extensible manner. According to him “the wrong of nuisance consists in causing or allowing without lawful justification the escape of any deleterious thing from his land or from elsewhere into land in possession of the plaintiff, e.g. water, smoke, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals.”
Stephen defined nuisance to be “anything done to the hurt or annoyance of the lands tenements of another, and not amounting to trespass.”
Thus from above all definitions, we can conclude that nuisance is an injury or an unlawful interference to the use or enjoyment, or some right of a person in possession of a property. It is an act of unlawful, unreasonable or unwarranted annoyance to the plaintiff’s use or right over the land.
TYPES OF NUISANCE
Nuisance can be classified into two kinds:
1. PUBLIC NUISANCE,
2. PRIVATE NUISANCE
PUBLIC NUISANCE
Section 3(48) of the General clauses Act, 1897 defines a public nuisance as it is defined in the Indian penal code (IPC). So we need to refer IPC for its definition. IPC defines it under section 268 where it means an act or omission which is illegal and results in common injury, danger, or annoyance to the people who dwell or occupy the property and is also extended to include people who are in the vicinity. Such annoyance must infringe the certain rights of those people.
Thus public nuisance can include all the acts which affect general public or a large section of the community. Some of its examples are- where a person operates a trade which causes loud noise, keeping inflammable substances in large quantity, etc.
In the case of Ram Raj Singh v. Babulal where the defendants installed a brick grinding machine adjacent to the plaintiff’s land who is medical practitioner, it was held that the dust from the machine causes public nuisance as it affects all the patients or visitors too.
In certain circumstances, an individual can have a private right to the action in case of a public nuisance if he can prove following-
- He must show a personal injury i.e. beyond what is suffered by general public.
- Such injury must be appeared to be of a substantial character.
- Such injury must be direct in nature.
Though in India under Section 91 of the Civil Procedural Code (CPC) allows a civil action in case of a public nuisance without any proof of special damage. Such suit can be instituted by the Advocate General or by two or more persons with the leave of the court.
PRIVATE NUISANCE
In contrast to public nuisance, the concept of private nuisance involves injury to a particular individual and not to public at large. In such cases, the remedy of civil action or injunction or both is available to such individuals. The remedy of indictment doesn’t exist in case of private nuisance.
The law of private nuisance protects the interest of the occupier of land. It seeks to maintain a position where an individual can exercise his right to enjoy his property while not causing inconvenience to his neighbors.
ELEMENTS OF PRIVATE NUISANCE
- THERE MUST BE AN UNLAWFUL OR UNREASONABLE INTERFERENCE.
An act of nuisance can be proved only in the situation where someone unlawfully or without any cause which is reasonable in nature interferes with the peaceful enjoyment of plaintiffs in his property. Thus the cases where someone under legal authority ends up causing the offence of nuisance while carrying on the authorized work, he would not be held liable.
- SUCH UNLAWFUL INTERFERENCE MUST BE WITH THE ENJOYMENT OR USE OF THE LAND OR SOME RIGHT OR IN CONNECTION WITH THE LAND.
Every person has a right so that he can peacefully enjoy his property. This law is in place to protect such rights only. In the case of Datta Mal Chiranji Lal v. Lodh Prasad where the plaintiff was not able to enjoy peacefully in his house due to the excessive noise produced by the electric mill installed by the defendants, it was held that the plaintiff has a right to the action.
- THERE MUST BE SOME DAMAGE SUFFERED BY THE PLAINTIFF.
The damage here can be to the property or the plaintiff in the form of physical discomfort. In the cases where damage is done to the property, any sensible injury would be enough to support an action. In the case of St. Helen Smelting Co. v. Tipping where the fumes from the defendant’s manufacturing industry damage the trees and shrubs present in plaintiff’s land, it was held to be sufficient amount of damage to the property.
In Dilware v. Westminister City Council, the roots of the respondent’s tree caused a crack to the neighbor’s building. The neighbor in the present case was allowed to claim compensation for the damage caused to his property.
Now when we come to the case where damage is in the form of physical discomfort, the following two conditions must be fulfilled-
- There must be material interference with the ordinary comfort of human existence.
- Such interference is caused by an activity that is in excess of ordinary use or enjoyment of land.
REMEDIES FOR NUISANCE
The following remedies are available for nuisance-
- INJUNCTIONS
It is one of the most important remedy available in the cases of nuisance, which is discretionary in nature. Being a discretionary remedy, it is upon the court to exercise its discretion whether to grant such or not, though court must always act judicially while deciding so.
In the case of Miller v. Jackson plaintiff constructed his house near the cricket playground. When he complained about the nuisance from a cricket ball, the court refused to give him the remedy of an injunction because firstly he must have known about the existence of such ground, and secondly, the court considered the interest of the entire village by having a ground to play.
The court can issue a temporary injunction that is interim in nature. Such a temporary injunction can either be confirmed or reversed. The cases where it is confirmed, it becomes a permanent injunction.
- DAMAGES
Damages are monetary compensation given to the plaintiff. It could be nominal damages (which is simply given to recognize the harm suffered by the plaintiff) or statutory damages (which is given as per a statutory law) or exemplary damages (which is given to set an example for everyone so that such is not repeated in future).
- ABATEMENT
This is a self-help remedy, where the injured person doesn’t take a legal course to seek a remedy. This remedy is usually not advisable as even courts do not favor it. One such example of this kind of remedy is where the plaintiff himself cuts the branches of the tree of the defendant which causes him a nuisance.
DEFENSES TO NUISANCE
FOLLOWING ARE THE VALID DEFENSES AVAILABLE FOR THE ACT OF NUISANCE-
- PRESCRIPTIVE RIGHT TO COMMIT NUISANCE
This concept is embodied in section 26 of the Limitation Act and Section 15 of the Easement Act, which is that a title can be acquired by use and time because of continuous possession of the property. This defense can be avail in case of nuisance when defendant can show a peaceful open enjoyment of property as an easement for 20 years.
To establish a right by prescription following conditions must be fulfilled-
- Enjoyment or use
- Identity of the thing which is enjoyed.
- Such enjoyment must be adverse to the right of some person
In the case of Elliotson v. Feetham, the court approved the prescriptive right to a noisome trade when the defendants were able to prove 20 years of its existence.
In Sturges v. Bridgman, defendants were operating certain heavy machines for more than 20 years in their place. Plaintiff who was a medical practitioner constructed a consulting room adjacent to defendant’s house. In the present case, the court doesn’t allowed defendant to claim an easement right as the period of 20 years can be counted from the day plaintiff constructed such room.
- STATUTORY AUTHORITY
When certain power is conferred by statutory law and such is exercised with due care and skillfully without exceeding the conferred limit, the defendant can claim a defense against offence of nuisance. In the case, of Vaughan v. Taff Vale Rly where the defendants were having the statutory authority to run a locomotive engine on their railway, it was held that they cannot be held liable for the fire caused by the sparks of such engine.
- ACT OF GOD
Defendants can claim a defense of “act of God” as those are beyond human power or contemplation and are caused by a superior natural force. In Nicholas v. Marsland where an unprecedented rainfall caused bursting of the embankments of the lake, it was held plaintiff cannot be made liable to the flood caused by such lakes. As such was an act of god which was unexpected and beyond human control.
- CONSENT OF PLAINTIFF
This is basically a defense of ‘volenti non fit injuria’ where the plaintiff has either explicitly or impliedly consented for such an act of nuisance. In Kiddle v. City business properties the plaintiff was a tenant in the defendant’s house where he was occupying the ground floor of the house. The gutter of the landlord’s house was blocked even at the time when plaintiff was taking the house on rent. Thus, defendant was here allowed to claim this defense when damage was caused to plaintiff’s stock as he consented for such.
- NECESSITY
When the offense of nuisance is committed in order to prevent a threat or harm, the defendant can claim the defense of necessity.
- TRIFLES
The latin maxim “De minimis non curat lex” means that law does not concern itself with matters that are insignificant and/or immaterial. Thus, no remedy is available to the plaintiff in a matter which is immaterial in nature. For example, where the shadow of the defendant’s tree falls on the plaintiff’s land, he cannot claim remedy against offense of the nuisance.
CASE LAW
- RAM BAJ SINGH V. BABULAL
In this case the court has recognized private nuisance arising out from a public case.
Facts of case are the plaintiff was a doctor, was running a cleaning in his area, he complained about the defendant as defendant has brick-powdering mill also in same area where clinic was situated so, here plaintiff demanded special damage and also compensation for substantial injury as the defendant mill has polluted the atmosphere and also had entered to the consulting chamber of plaintiff which caused physical inconvince to him and his patients. Also, plaintiff mentioned in complaint that this machine set-up by defendant is there without permission from municipal board.
Defendant contended that there is no question of pollution in atmosphere and also bricks used to be put in moisture before grinding to avoid dust. Defendant further stated that machine do not cause noise pollution.
Courts comment on special damage it was held that dust that was coming out in air was health hazard and also it was entering plaintiff chamber so much that red coating was visible from the clothes of person sitting there. This is absolutely coming in category of special damage.
Substantial injury every injury is considered to be substantial in which a reasonable person is considered to be so. It is been reviewed that reasonable person of society has caused this to another reasonable person. If any one has to wait for actual damage then it will become palpable or demonstrable so this case facts provide right to have compensation from substantial injury.
- CHRISTI V. DAVEY
The defendant filled case as said he was being continuously irritated by the music and singing lessons by the plaintiff. Plaintiff here was music teacher and was giving music lesson to students four day in a week which totally amounts to 17 hours approximately. The neighbors were being aggravated because plaintiff so they also did party where they were beating trays, whistling, shrieking and this way he was interfering his music teaching.
Held that giving music tuition cannot be considered as unreasonable use of house, that could be restrained by any injunction. But the person who interfered into this teaching by doing party and creating wired sound have done so out of malice, which is a significant factor and has caused nuisance.
- SHAIKH ISMAIL HABIB V. NIRCHANDA
The defendant had set apart a portion of his own house for purpose of charity in this he allowed to preform any type of function related to marriage ceremonies, poojas etc. this was available to people present around free of cost, due to this particular charity place a lot of noise was caused also with discordant instrument plying for long time during ceremonies this was normal residence place where people finding difficult of do normal and ordinary course of life.
Held by high court that this act of defendant amounted to nuisance and plaintiff was entitle to injunction that will restrain defendant from disturbing further during hour of sleep and charity cannot be defense in such cases.
- DATTA MAL CHIRANJI LAL V. L.L PRASAD
Defendant has a electric flour mill in premises of Bazar Locality of Mussoorie which was adjacent to plaintiff house. The plaintiff alleged that this caused lot of noise and vibration and because of this plaintiff and his family members are finding difficult to reside in their house, they said the this is causing inconvince and discomfort to them.
Case moved in Allahabad High Court dealt with two contention together and stated: every owner of property has right to use that as per reasonability this is subjected to certain limitations as maybe incidental and beneficial enjoyment of owner and properties.
Plaintiff is therefore entitled to reside comfortably in his own house, if the defendant is producing noise and vibration as to cause substantial discomfort to plaintiff this amount to nuisance. The court stated mill as nuisance and substantial question and dismissed the appeal.
- D.RAMNATHA V. S. RAZAACK
The case was that plaintiff was enjoying light and air from window and ventilator form upstairs of building for about 50 years. Therefore, he acquired easement right. The defendant construction which he wants to do of two story will completely shut up these windows and there will be no light or air to pass to property of plaintiff. It was held that defendant is not allowed to obstruct the air and light coming through the windows. Hence court instated the suit of permanent injunction permanently, prohibiting the defendant from shutting out the windows ans ventilators situated in the plaintiffs property and costs.