CS Deepak Pratap Singh
We are living in modern world, where some degree of nuisance are tolerable relating to noise, dust, pollution, smell, smoke and escape of effluents etc. We are daily facing various types of nuisance and we ignore to some extent.
Nuisance may come from your neighbours, your locality, and your state or even from various other authorities.
The term “Nuisance” is made of French word “nuire” and Latin word “nocere” or “nocumentum”, which in legal sense means “annoyance” or “harm”.
Nuisance defined in free dictionary; – One that is inconvenient, annoying or vexatious and use of property or course of conduct that interferes with the legal rights of others by causing damage, annoyance or inconvenience.
A person, thing, or situation that is annoying or that causes troubles or problems.
Wikipedia define; nuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury. It can be either public or private.
“ an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstruct or causes inconveniences or damage to the public.”
Now let us suppose we are living in a civilised society in which all are living together and harmony. If one of your neighbour starts behaving rudely, produces noise , through garbage in the society, not ready to follow rules of the society and accommodate some anti social person in his/her residence. All these acts of your neighbour which cause annoyance harm to you and the society is a type of nuisance.
Nuisance has been defined under two categories;
1. Public Nuisance, and
2. Private Nuisance
PUBLIC NUISANCE;
If any act of a person annoys a large number of persons or class of persons, it is called “Public Nuisance”.
A Public Nuisance is an unreasonable interference with the public rights to the property. Any act which affects the safety, health and right to live in peace of the people is nuisance. Suppose someone has blocked the highway, due to which public are unable to use that facility. It is a Public Nuisance that affects a large number of public.
Section 268, India Penal Code, 1860 provides that; “ a person is guilty of public nuisance who dose 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.”
Note: if any person is injured due to act of any person in the nature of Public Nuisance, the he/she can sue the person for damages as a Private nuisance.
As decided in case of Soltan v. De Held (1851) 2sim RS 133, De Held, was the priest of a Church. Throughout the day the bell of the Church was ringing and producing sounded, which affects the people living in the vicinity of the Church. The plaintiff was the most affected person, since his house was near the Church. The Court in this case decided that it was a type of Public Nuisance and plaintiff was entitled to injection.
Dr. Ram Raj Singh. Babu Lal, AIR, 1982 ALL285; the defendants had installed a brick grinding machine on his plot and the plaintiff was a doctor and have a clinic adjoining the plot of the defendant. Due to brick grinding the adjacent environment had been polluted with the red brick materials and same was visible on the dress of doctors, which affects the health of the persons residing in the vicinity of the clinic. The plaintiff brought a suit against the defendant for damages and got an injection order from the Court on the basis of Public Nuisance.
PRIVATE NUISANCE;
If freedom or property of an individual is affected due to any act of another person, it is a private nuisance.
“Lord Winfield” defined it as; unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it, which causes damage to the persons’ property or safety.
The interference will be unwarranted, which causes damages to the plaintiff and such interferences are termed as undue or unreasonable. Any interference, which exceeds limited uses permitted in any society, is undue or unreasonable.
Note: the interference must be continuous or repetitive.
As decided in case of Radhey Shyam v. Gur Prasad, AIR 1978 ALL 86; Gur Prasad brought a case before the Court and got an injection by claiming that the flour mill , which was going to be installed in the premises by the defendant in which he resides, will cause serious health issue and noise , so he can lose his peace on account of the rattling noise of the floor mill. The Court observed the act of defendant as Private nuisance and issued order for restraining installation of flour mill in the premises.
Usha Ben v.Bhagya Laxmi Chitra Mandir, AIR 1978(Guj) 13(1977) GLR 424; in this case Usah Ben brought the case before the Court and demand complete ban on screening the film in the theatre, because in the film three deities Laxmi, Parvati and Saraswati were shown a jealous with each other. This episode hurt the Usha Ben very much. The Court has decided that the film did not hurt any religious filing and not an actionable wrong. Usha Ben if found it hurting, then she can decide not to see the film.
Note: if a person is very sensitive for a particular thing but for others that thing is very normal, then it is not a nuisance.
If a lawful act is done by defendant with a wrong intention or malice, it is a nuisance.
A private nuisance can be done either (1) injury to property or (2) injury to the health or comfort of an occupier of land. If property gets damaged due to unreasonable inference then it is an actionable nuisance.
Suppose the plants and trees in the garden of your neighbour have been damaged due to fumes emitted from your house or factory. Then it is an actionable nuisance.
Actions for private nuisance also lie for interference with easement, profits-a-pendre 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.
Stroyean v. Knowls, (1861) 6 H & N 454; the defendants were carrying on mining operations which caused the plaintiff’s land to subside. In consequence it damages the factory of the plaintiff. 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 Indian Easement Act says-“the removable of the means of support to which dominant owner is entitled does not give rise to a right to recover compensation, unless and until substantial damage is actually sustained.”
Section 25 of the Limitation Act, 1963 says- 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 Easement Act, enables and person to bring an action against the defendant if there is an substantial infringement of an easement of light, air, water, water to use etc.
It is necessary to prove actual damage, when cause 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 proving it or providing evidence.
DEFENCES AVAILABLE;
Prescription: it is a special defence and the right to continue a private nuisance may be acquired as easement by prescription. The easement should be enjoyed peacefully and openly. This type of nuisance can be enjoyed for a period of 20 years and after that it will be legalised.
Statutory Authority; if a statute has allowed or authorised 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 has been taken away.
REMEDIES;
Abetment; it means removable of nuisance by the person affected, but the removable must be peaceful and life should not be endangered.
Injection; it is based on the nature of the nuisance and if the nuisance is such that it is impeding and should be stopped. Then injection is necessary.
Damages; if plaintiff succeeds in proving that the nuisance caused damages to his property or health, and then the Court may order for payment of compensation for the damages.
(Author can be reached at cs.deepakpsingh@gmail.com)
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