CHAPTER 20

Nuisance

1. Introduction

The term 'nuisance' is made up of French word 'nuire' and Latin word 'nocere' or 'nocumentum' which in legal sense means 'annoyance' or 'harm'. The element of unlawful 'annoyance' is the only thing common to all nuisances.

Everyone, today thinks that interference should not come from his neighbour in his way of life, but it is not possible in absolute manner. One has to endure some degree of noise, dust, smell, smoke, the escape of effluent etc., otherwise life would not move in the modern world.

Nuisance has been defined under two categories:

(i) Public Nuisance, and

(ii) Private Nuisance

2. Public Nuisance

Q. Define nuisance and discuss its types with the help of relevant cases.

If, an activity of a person annoys a large number of persons or class of persons then it is called as 'Public nuisance'. It is punishable under the law i.e., under section 268 of the Indian Penal Code which says-

"a person is guilty of 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 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."

e.g. - to block the public highway which stops the movement for a number of people is a public nuisance.

But, if someone gets injured from public nuisance then he may file the action for damages against the offender or wrongdoer. So, a 'public nuisance' may become a 'private nuisance' when an individual gets injured.

In Soltan v. De Held, (1851) 2 Sim RS 133, De Held was the priest of a Roman Catholic Chapel. Throughout the day and night the bell was rung. The plaintiff was living just the next door to chapel. The bell disturbed everyone in the vicinity of the chapel. The plaintiff was disturbed most. The court held that it was a public nuisance and as far as the plaintiff was concerned, a private nuisance and the plaintiff was held entitled to an injunction.

In Winter Bottom v. Lord Derby, 1867 LR Exch 316, it was observed that where a public nuisance does not cause any special damage or particular injury, an individual being annoyed like others, cannot file a civil suit for private nuisance as he had suffered damage not more than any other member of the public.

In Dr. Ram Raj Singh v. Babu Lal, MANU/UP/0286/1982 : AIR 1982 All 285, the defendant installed a brick grinding machine. The plaintiff had a clinic in the adjoining premises. Due to brick-grinding the air in the vicinity was polluted, dust particle, red in colour was all visible on clothes. The plaintiff got special damage as proved in the Court and the Court also granted permanent injunction restraining the defendant from running his brick grinding machine there. The appropriate remedy was provided under section 268 of the Indian Penal Code coupled with sections 133 to 143 of the Criminal Code.

3. Private Nuisance

Winfield has defined Private nuisance as unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it. There are following elements, which have to be proved by the plaintiff in every case of nuisance:

(i) Undue or unreasonable interference,

(ii) Interference must be with the use or enjoyment of land,

(iii) Damage.

Undue or unreasonable interference

Q. What is undue or unreasonable interference? Elaborate it with the helpof relevant cases.

There are some unwarranted interferences which cause damage to the plaintiff and such interferences are termed as undue or unreasonable. Undue or unreasonable interference refers to that which exceeds the limited usage in the society. If someone is erecting/constructing a building and in doing so it creates too much noise and dust, here, the action may lie. The interference should be continuous or repetitive.

For example, A, everyday beats a drum from 10 p.m. to 1 a.m. which creates a lot of noise and disturbs the sleep of B, his nighbour. Here, the activity of A is unusual and it doesn't happen so frequently in the society and, thus, A unduly interferes with B's enjoyment of land and it is also unusual because it is not in accordance with the usage of mankind in the particular society.

Radhey Shyam v. Gur Prasad, MANU/UP/0023/1978 : AIR 1978 All 86. Gur Prasad filed a suit to restrain Radhey Shyam from installing a flour mill in his premises as Gur Prasad was residing in the same premises and by installing of mill he would cause nuisance to him as the plaintiff would lose his peace on account of the rattling noise of the flour mill and thereby his health would also be affected adversely. The court observed that the impugned machines would seriously interfere with the physical comfort of the plaintiff and as such it amounted to nuisance and the plaintiff was entitled to an injunction against the defendant.

Usha Ben v. Bhagya Laxmi Chitra Mandir, AIR 1978 Guj 13: (1977) GLR 424. In this case defendant was running the film titled "Jai Santoshi Maa" in his theatre. The plaintiff filed a petition for permanent injunction of screening this film by the defendant on the ground that in the film Goddesses Laxmi, Parvati and Saraswati have been ridiculed and were depicted jealous. It hurt her sentiments/feelings. The Court ruled that to hurt religious feelings was not actionable wrong and that the plaintiff was free not to see the movie again. It was not a case of nuisance.

Abnormal sensitive person or property-If a person is oversensitive to a particular thing but for others that particular thing is very normal, then it is not nuisance. In Heath v. Mayor of Brighton, (1908) 24 TLR 414, the incumbent and trustees of a church were annoyed by a "buzzing sound" from the defendant's power station. The court observed that the 'buzzing sound' was not distracting attention of ordinary person attending the church and did not cause any annoyance to other person.

Intention (Malice)

If defendant is intentionally doing something to cause annoyance to plaintiff, then defendant's intent is certainly a relevant factor in nuisance. We can also say that an act of the defendant which is otherwise lawful may become a nuisance if done with malice.

In the case of Christie v. Davey, (1893) 1 Ch 326 (327), plaintiff and defendant, both were neighbours. The plaintiff and their family were fond of music. They used to sing and play various instruments. It disturbed the defendant. He started hammering the wall, beating trays, shrieking and whistling. The Court held the defendant liable as he was doing it intentionally and maliciously for the purpose of annoying the plaintiff. The Court observed-"if what has taken place had occurred between two sets of persons both perfectly innocent, I should have taken an entirely different view of the case. But, I am persuaded that what was done by the defendant was done for the purpose of annoyance".

Interference with the use or enjoyment of property

In private nuisance, an interference may cause either (a) injury to property, or (b) injury to comfort or health of an occupier of land.

Q. Is it true that damage to property due to an unauthorized interference constitutes a nuisance?

(a) Injury to property.-If property gets damaged due to an unauthorized interference then it is actionable as nuisance. In St. Helen's Smelting Co. v. Tipping, (1865) 11 HL Cas 642, fumes were emitted from the defendant's factory which damaged plaintiff's tree and plants. The defendants were held liable since such damage was held as an injury to the property of the plaintiff.

In Pakkle v. Aiyasami Ganapathi, MANU/TN/0215/1969 : AIR 1969 Mad 351, a suit was filed by some villagers, in a representative capacity to seek an injunction from the Court in order to restrain the defendants from laying the salt pans in the tank. The villagers had their plea that the water of tank was meant for drinking as well as for their animals and if the salt pans are placed then it will make water undrinkable for them. The defendant contended on the ground that the plaintiff had no proprietary rights on the suit land as it was the property of the government. The Court was of the view that although the tank belonged to the government but the villagers had right to use the water of tank for drinking and bathing purposes and also for bathing and washing cattle. The Court observed-"Once it is established that the villagers have a common right over the water in the tank for purpose of using it for their bathing and drinking purposes, any interference with that right would give them a cause of action, even though the interference is not in respect of land belonging to the plaintiff. The action of the defendants would amount to nuisance."

It was further stated that "it may be that if the government permits the defendants to lay salt pans in the tank, circumstances might arise where the injunction might not be of any use. But till that contingency arises the plaintiffs are entitled to injunction prayed for."

Incorporeal Property-Actions for private nuisance also lie for interferences with easements, profits-a-prendre and certain rights which are generally called as "natural rights." It is inherent in the ownership to support of one's land by one's neighbour's land.

Interference with the right to support-Nature of support may be for the land or for the building. Nature of rights vary in both these cases.

(i) Support for land.-It is a natural right to have one's land supported by one's neighbour. But, if one's neighbour, removes such support either laterally or from beneath, then it amounts to nuisance. This natural right is available only in respect of land and not for any structure/building. But, where the damage to the building is consequential to the damage to natural right of support, an action for withdrawal of support may lie.

In Stroyan v. Knowles, (1861) 6 H&N 454, the defendants were carrying on mining operations which caused the plaintiff's land to subside. In consequence, it damaged plaintiff's factory. The Court found that the weight of the building did not contribute to the causing of the subsidence. The defendant was held liable.

Section 34 of the Indian Easement Act says-

"the removal of the means of support to which dominant owner is entitled does not give rise to a right to recover compensation, unless an until substantial damage is actually sustained."

(ii) Support for buildings by grant of prescription.-It was held in the case Partiage v. Scott, (1838) 3 M&W 222, that a man has no right to load his own soil, so as to make it require the support of that of his neighbour. By grant or prescription, this right of support may be acquired. Where this right has been acquired, a nuisance will be committed if the support is withdrawn.

In Dalton v. Angus, (1881) 6 App Cas 740, the plaintiff and defendant, both were having properties i.e., house not touching each other. Laterally, houses were supported by adjoining land. The plaintiff converted his house into a factory which, then became heavier and, therefore, required stranger lateral support compared to earlier. Some 20 years later defendant demolished his house and made excavations upon the site. In consequence, the building subsided. The plaintiff brought an action against the defendant. The Court held that the plaintiff had acquired a right by prescription to the support of building. The plaintiff's claim was acceded to.

Interference with the right to light and air.-The right to light is not a natural right. It may be acquired by grant or prescription. But once it is acquired, any substantial interference invites action.

Section 25 of the Limitation Act, 1963 provides that the right of easement to light, air, way, water course, use of water etc. can be acquired by prescription if the right has been peaceably enjoyed as an easement and as of right without interruption and for twenty years.

Section 33 of the Indian Easements Act enables a person to bring an action against the defendant if there is a substantial infringement of an easement of light, air, way, water etc.

(b) Injury to comfort or health-If there is substantial interference with a man's comfort or health then the action for injury arises. Discomfort and inconvenience is determined, not by taking into account the particular plaintiff, but on the basis of average man residing in the same area. Carrying on an offensive trade as to interfere with another's health and comfort or his occupation of property is a nuisance. Accumulation of filth, sewage and stagnant water causing injury to health and discomfort may also amount to nuisance.

Q. If there is substantial interference with a man's comfort or health the action for injury arises. Substantiate it with elaboration in view of the judgment in the case Brijbala Prasad v. Patna Municipal Corporation?

In Brijbala Prasad v. Patna Municipal Corporation, MANU/BH/0074/1959 : AIR 1959 Pat 273, the plaintiff's houses were on a public lane, to the east of which an important drain in linking with other drains were running. The maintenance of drains was under the charge of City Municipal Corporation (Patna). The drain was broken at several places, due to which water with filth was overflowing and accumulating sewage, filth with foul smell all the way. It was difficult for residents there to live in such unhygienic condition. Even after repeated requests the drain was not repaired by the municipal corporation. The plaintiff brought an action on the ground that the stagnant water had become a breeding ground for the germs of different diseases and was emitting foul smell. The defence contended that it had done everything to improve the drainage system but could not do much due to limited financial provisions with the corporation. It further contended that the corporation should not be made liable for breach of the statutory duty which amounts to non-feasance.

The Lower Court observed that non-repairs and consequential nuisance amounted to misfeasance and therefore the corporation was liable. But on appeal, the lower sub-ordinate Court held that the present nuisance resulted from non-feasance for which the corporation was not liable.

The matter came to the High Court, and it found that the angle of approach which adopted by the lower appellate court was faulty and that the distinction between misfeasance and non-feasance was of not relevance in a case of nuisance. The Court observed that it was a well-recognized principle of law that where a person was guilty of a breach of duty to the public, an action could be maintained by any person who suffered special damage thereby. Such nuisance was not permissible under the Bihar and Orissa Municipal Act. Accordingly, the Court held the corporation liable for nuisance.

Damage

Actual damage is required to be proved, when the case of nuisance arises. In case of public nuisance, the action is brought against the defendant, when the plaintiff proves special damage to him. But when the nuisance is related to other than physical damage to property, damage is presumed by law without imposing upon the plaintiff the difficult task of furnishing strict proof of it.

4. Defences

Although, in various cases, nuisance due to act of others, reasonable care, plaintiff coming to nuisance etc. have been pleaded but these defences have been rejected by the Court.

Prescription and statutory authority are good defences.

Prescription

Prescription can legalise a nuisance. Prescription is a special defence and the right to continue a private nuisance may be acquired as easement by prescription. A person can acquire a right to commit a private nuisance as an easement provided it has been enjoyed as an easement peacefully and openly. At the same time it was continued for 20 years without interruption. After the expiry of 20 years, the nuisance becomes legalised as if it has been authorized by a grant of owner of servient land from the beginning.

In the case Sturges v. Bridgemen, (1879) 11 Ch D 852, defendant was a confectioner and had a kitchen in the back of his house. The plaintiff did not feel any noise and vibration from kitchen for over 20 years. After 20 years, plaintiff, who was a medical practitioner shifted his consulting room in the back garden of his house. After this shifting, the plaintiff felt the nuisance caused by kitchen's noise and vibration.

The plaintiff brought the suit and the Court granted injunction against the confectioner. Defendant's claim of prescriptive right failed because the interference had not been actionable nuisance for the preceding period of more than 20 years.

Statutory Authority

If a statute has authorized to do a particular act, all remedies, whether by way of indictment or action, are taken away, provided that every reasonable precaution consistent with the exercise of the statutory power have been taken. The liability for nuisance cannot be avoided where the act authorized by the statute has been done negligently.

5. Remedies

The remedies which are available to a person for nuisance are:

Abatment

It means the removal of nuisance by the person affected, but the removal must be peaceful and life or limb should not be endangered. A prior notice is necessary, if, to remove the nuisance, the defendant's territory has to be crossed.

Injunction

If nuisance is such that it is of permanent character, and is impending, then the injunction can be obtained from the court only.

Damages

Remedies are available to a person for nuisance if the plaintiff shows that he has suffered damage to his person or property.

6. Distinction between private and public nuisance

7. Distinction between nuisance and trespass

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