TOPIC: NUISANCE

SUBMITTED TO: PROF. SURBHI GOYAL

FACULTY OF TORT

SUBMITTED BY: ANJALI DAS

ENROLLMENT NO.: 21FLUCDDN01023
SUBMISSION DATE: 20TH JANUARY
ICFAI LAW SCHOOL
THE ICFAI UNIVERSITY, DEHRADUN
ACKNOWLEDGEMENT
First and foremost, I would like to thank our tort Prof. Surbhi Goyal who guided us in doing
this project. She provided us with invaluable advice and helped us in difficult periods. Her
motivation and help contributed tremendously to the successful completion of the project.
Besides, we would like to thank all the teachers who helped us by giving us advice and
providing the equipment which we needed.
Also, I would like to thank my family and friends for their support. Without that support we
couldn’t have succeeded in completing this project.
At last, but not in least, we would like to thank everyone who helped and motivated us to work
on this project.

Date: ANJALI DAS

20/01/2022 LLB 1ST SEMESTER
DECLARATION
I, ANJALI DAS student of LLB 1st semester hereby declare that the project work on
nuisance, has been prepared under the guidance of Prof. Surbhi Goyal, Faculty of Tort in
ICFAI University, Dehradun.
I also declare that this project is the outcome of my own effort, that it has not been submitted
to any other university for the award of any degree.

Date:
20/01/2022
TABLE OF CONTENT

INTRODUCTION
DEFINITIONS BY VARIOUS THINKERS
ESSENTIALS ELEMENTS OF NUSIANCE
1. UNREASONABLE INTERFERENCE
2. INTERFERENCE WITH THE USE OR ENJOYMENT OF LAND
3. DAMAGE
KIND OF NUISANCE
1. PUBLIC NUISANCE
ESSENTIALS
2. PRIVATE NUISANCE
ESSENTIALS
DEFENCES
1. PRESCRIPTION
2. STATUTORY AUTHORITY
3. DE-MINIMIS NON-CURAT LEX
EXCEPTIONS OF DEFENCE
REMEDIES
1. INJUCTION
2. DAMAGES
3. ABATEMENT
DISTINGUISH BETWEEN NUISANCE AND TRESPASS
CONCLUSION
BIBLIOGRAPHY
INTRODUCTION
A person in possession of a property is entitled to its undisturbed enjoyment as per law.
However, if someone else’s improper use or enjoyment in his property ends up resulting into
an unlawful interference with his enjoyment or use of that property or of some of the rights
over it, or in connection with it, we can say that the tort of nuisance has occurred.
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.
Nuisance should be distinguished from trespass, which is also a wrong against possession of
property. If interference is direct, the wrong is trespass, but if it is consequential, it amounts to
nuisance. Planting a tree on another’s land is trespass. But when a person plants a tree over his
own land but the roots or branches project into or over the land of another person, that is
nuisance.
In Durga Prasad v State (AIR 1962 Raj 92), it was observed that ‘nuisance’ ordinarily means
anything, which annoys, hurts or that which is offensive.

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.

ESSENTIALS ELEMENTS OF NUISANCE

1. Unreasonable interference
Interference may cause damage to the plaintiff’s property or may cause personal discomfort
to the plaintiff in the enjoyment of the property. Every interference is not a nuisance. Every
person must put up with some noise, some vibration, some smell, or inconvenience, etc. So that
other members of the society can enjoy their own rights. A person having a house by the
roadside must put up with such inconvenience which is incidental to the traffic on the road. So
long as the interference is not unreasonable, no action can be brought.
In the case of Ushaben v. Bhagyalaxmi Chitra Mandir, where the Plaintiff prosecuted the
Defendant against the screening of the movie “Jai Santoshi Maa”, declaring that it undermines
the religious sentiments of a particular Hindu community, the court dismissed the plea stating
that undermining a religious emotion was not an actionable wrong and the Plaintiff is free to
not watch the movie again. Hence it was held that in order to claim damages for Nuisance, the
interference shall be in a state of continuing wrong.
Malice- Does an act, otherwise lawful, become a nuisance if the act of the
defendant has been actuated by an evil motive to annoy the plaintiff?

In the case of Mayor of Bradford v. Pickles, the House of Lord held that if an act is otherwise
lawful, it does not become unlawful merely because the same has been done with an evil
motive. However, if the act of the defendant, which is done with an evil motive, becomes an
unreasonable interference, it is actionable. A person has a right to make a reasonable use of his
own property but if the use of his property causes substantial discomfort to others, it ceases to
be reasonable.
In the case of Hollywood Silver Fox Farm Ltd. V. Emmett, the plaintiff’s had the business
of breeding silver foxes on their land. The vixen are extremely nervous during the breeding
season. The defendant maliciously caused guns to be fired on his own land but as near as
possible to the breeding pens with a view to causing damage to the plaintiff by interfering with
the breeding vixen. The plaintiff was entitled to an injunction and compensation.

2. Interference with the use or enjoyment of land

Interference may cause either injury to the property itself or injury to comfort or health of
occupants of certain property.

An unauthorized interference with the property of another person through some object, tangible
or intangible, which causes damage to the property is actionable as nuisance. Example: by
allowing the branches of tree to overhang on the land of another person, or the escape of the
roots of a tree, water, gas, smoke or fumes, etc. On the Neighbour's land or even by vibrations.
Substantial interference with comfort and convenience in using the premises is also actionable
as a nuisance. A mere trifling or fanciful inconvenience is, however, not enough. The standard
of comfort and inconvenience in using the premises varies from time to time and place to place.
Inconvenience and discomfort from the point of view of a particular plaintiff is not the test of
nuisance but the test is how an average man residing in the same area would take it. Disturbance
of Neighbour's throughout the night by same area would take it. Example: the noise of horses
in a building converted into a stable was a nuisance. Smoke, noise and offensive vapour may
constitute a nuisance even though they are not injurious to health.
In the case of Halsey v. Esso Petroleum Co. Ltd, where the defendant’s factory emitted
smokes, oil, fumes and smell and polluted the environment along with harming the plaintiff’s
health because of his own sensitive health issue, the former was held liable to the latter only
for the emission of smoke, oil and fume and not for health hazard.

3. DAMAGE
Unlike trespass, which is actionable per se, actual damage is required to be proved in an action
for nuisance. Even in the case of public nuisance, the plaintiff can claim compensation if he
can show a special damage to himself.
KIND OF NUISANCE

1. PUBLIC NUISANCE
The Indian Penal code defines nuisance as an act which causes any common injury,
danger or annoyance, to the people in general who dwell or occupy the property, in the
vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to the
people who may have occasion to use any public right.
Public Nuisance is defined as an unreasonable and unlawful act of the defendant that causes
substantial inconvenience and legal injury to the people at large. It comes into play when by
the Act of the defendant, a mass of people is influenced negatively. In the words of
Bermingham, Public Nuisance, where the defendant’s actions “materially affects the
reasonable comfort and convenience of life of a class of Her Majesty’s subjects”
Public Nuisance, being a crime under the Indian as well as English Laws, finds its recognition
in various statutes of the country. Public nuisance affects the society and the people living in it
at large, or some considerable portion of the society and it affects the rights which the members
of the society might enjoy over the property. The acts which seriously affects or interferes with
the health, safety or comfort and convenience of the general public is a public nuisance. Case
filed by pubic interest litigation.
ESSENTIALS
• A person must have done an act or an illegal omission.
• Such an act or omission must cause any common injury, danger or annoyance
to the public or to the people in general who dwell or occupy the property in the
vicinity.

Instances where an individual may have a private right of action in respect to a public nuisance:
• He must show the existence of any personal injury which is of a higher degree
than the rest of the public.
• Such an injury has to be direct and not just a consequential injury.
• The injury must be shown to have a huge effect.

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. Private
Nuisance, influences an individual rather than the world at large. It provides the affected
person a claim of “Right in Personam”. Private Nuisance occurs when the action of the
Defendant affects only the Plaintiff in his own enjoyment of land and property and no one
else. Technically, when a person does an action which influences another person, and
intercepts the latter from performing rights over his own property. It does not affect any other
person.
The remedy for private nuisance is a civil action for damages or an injunction or both. Plaintiff
can claim for unliquidated damages and considering the seriousness of injury, the same are
decided and awarded to him.

ESSENTIALS OF 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 seeable damage to the property or with the enjoyment of the
property in order to constitute a private nuisance.
Example: obstructing a public way by digging trench etc.
In the case of 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 good 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.
In the case of Ram Raj Singh v. Babulal AIR 1982 ALL 285, the defendant had created a
brick grinding machine adjoining to the premises machine generated lots of dust, which in turn
polluted the atmosphere. The dust that was generated due to the brick grinding machine entered
the consulting chamber of the plaintiff and caused physical inconvenience to the plaintiff and
his patients and a red coating on the clothes which was clearly visible. It was held that special
damages were proved regarding the plaintiff and a permanent injunction was issued against the
defendant which would restrain him from running his brick grinding machine there.

In Dattamal Chiranji Lal v. Lodh Prasad, the defendants were awarded an injunction to stop
the grinding mill which led to a non-peaceful life for the Plaintiff and his family.
In Palmar v. Loder, the Defendants were awarded a perpetual injunction against loud
laughing, noise making and continuous ringing of the Plaintiff’s Doorbell.
A nuisance may be in respect of either property or physical discomfort
• Damage to Property: – In case of damage to property, any sensible injury will
be sufficient to support an action. Nuisances of this class may arise from
manufacturing works, chains, etc. For example, smoke, fumes, gas, noise, water,
filth, trees or animals.
• Physical Discomfort: – In the case of physical discomfort, the act complained
of must be in excess of the natural and ordinary course of enjoyment of the property
materially interfering with the ordinary comforts 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 with the enjoyment. For
example, carrying any trade causing nuisance, obstruction of light, etc.
In the case of Radhey Shyam v. Gur Prasad AIR 1978 All 86, Mr. Gur Prasad Saxena and
another filed a suit against Mr. Radhey Shyam and five other individuals for permanent
injunction restraining the defendant from installing and running a flour mill in the premises
occupied by the defendant. Gur Prasad Saxena filed another suit against Radhey Shyam and
five other individuals for a permanent injunction from running and continuing to run an oil
expeller plant. The plaintiff has alleged that the mill was causing a lot of noise which in turn
was affecting the health of the plaintiff. It was held that by running a flour mill in a residential
area, the defendant was causing a nuisance to the plaintiff and affecting his health severely.

DEFENCES

1. PRESCRIPTION
• 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 the 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 legalised 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 16 of the easement 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 unfavorable 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.
In the case of Elliotson v. Feetham, it was held that the Defendant has obtained
tyrannical rights to continue malodorous trade as he continued to do so for the past
20 years without any interference from the Plaintiff.

2. STATUTORY AUTHORITY
An act done under the authority of a statue is complete defence. 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 statue 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.
Example: a railway company authorized to run railway trains on a track is not liable if, in spite
of dur care, the sparks from the engine set fire to the adjoining property, or the value of the
adjoining property is depreciated by the noise, vibrations and smoke by the running of trains.
In the case of Vaughan v. Taff Rl, the act of the defendant of building the locomotive lines,
under the statutory authority, prevented the Plaintiff from taking any action against the former,
despite the damage suffered by the latter.
3. De-Minimis Non-Curat Lex
An Action for damages against the defendant cannot be brought if it is shown that
the Plaintiff is extra sensitive and an otherwise prudent person would not complain
of such non-substantive trifle.

EXCEPTIONS OF DEFENCE
In spite of the various defences available to the Defendant, he cannot claim the
following if an action for nuisance is brought against him-
• It is no defence to claim that the Plaintiff himself came to the place of
Nuisance.
• It is no defence to claim that all reasonable care had been adopted by
the defendant to prevent the act of Nuisance interrupt or harm the
Plaintiff.
• It is no defence to claim that there are others as well who commit
Nuisance against the Plaintiff and that the defendant is not the sole
wrongdoer.
• It is no defence to claim that the act of Nuisance is for the benefit of
Public and affects negatively to the Plaintiff only.

REMEDIES
1. INJUNCTION
An injunction is a judicial order restraining a person from doing or continuing an act which
might be threatening or invading the legal rights of another. It may be in the form of a
temporary injunction which is granted on for a limited period of time which may get reversed
or confirmed. If it is confirmed, then it takes the form of a permanent injunction.
2. DAMAGES
The damages may be offered in terms of compensation to the aggrieved party, these could be
nominal damages. The damages to be paid to the aggrieved party is decided by the statue and
the purpose of the damages is not just compensating the individual who has suffered but also
making the defendant realize his mistakes and deter 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 favored by the law. But is available
under certain circumstances.
This privilege must be exercised within a reasonable time and usually 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 overtime
outgrows and reaches the land of Ace. Now Ace has every right to cut that part of the tree
which is affect his enjoyment of his land with prior notice to Beck. But if Ace goes to Beck,
land without his permission, 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.

DISTINGUISH BETWEEN TRESPASS & NUISANCE:

S.NO. NUISANCE TRESPASS
1. Nuisance is an injury to some right of Trespass is the direct physical
possession of property, but not interference with the possession of the
possession of itself. property of the plaintiff by means of
some material or tangible object.
2. In nuisance the proof of actual Trespass is actionable per se (actions
damage to the property is required. which do not require allegations or
proof).
3. If the interference in the use or If the interference with the use of the
enjoyment of property is property is direct, then there is
consequential it would amount to a wrongful trespass.
nuisance.
4. If there is any injury to the property of Entering into the property of another
another or any interference with his person without the consent of the
enjoyment of the property, it shall be owner and without causing any injury
a nuisance. to him would be trespassing.
5. For example: – If a person plants a tree For example: – It would be trespass to
on his own land which then grows on plant a tree on someone else’s land.
another’s land it would be a nuisance.

In the case of Ushaben Navinchandra Trivedi v. Bhagyalaxmi Chitra Mandal AIR 1978
Gujarat 13, (1977) GLR 424, the plaintiff had sued the defendant for a permanent injunction
to restrain the defendant from showing a movie named “Jai Santoshi Maa”. It was said by the
plaintiff that the contents of the movie significantly hurt the religious sentiments of the people
belonging to the Hindu community as well as the religious sentiments of the plaintiff as the
movie showed Hindu Goddess’ Laxmi, Parvati, and Saraswati, to be jealous of one another and
were ridiculed in the film. It was held that hurt to religious sentiments was not an actionable
wrong.
CONCLUSION
The concept of nuisance arises commonly in everyone’s daily life, in fact, 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 own 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.

BIBLIOGRAPHY
• Law of tort by Dr. R.K.Bangia
• https://lawbhoomi.com/nuisance-law-of-
torts/#Defences_against_Nuisance_under_Law_of_Torts
• https://legalpaathshala.com/nuisance-in-tort-law/
• https://lawfaculty.in/nuisance-law-of-tort/