UNIT II: Defamation and Nuisance

Libel and slander, Essentials of Defamation, kinds of Nuisance, Essentials and Defences of
Nuisance

DEFAMATION
In our society, the reputation of an individual is considered as his biggest property and his most valuable
asset. Though our Constitution grants us a right of freedom of speech, it is ensured that this right
doesn’t use in a manner to hamper or destroy the reputation of other members of society. So, in order
to protect our reputation from the malicious conduct of other individuals, the concept of defamation is
provided in our legal setup.

“Our Reputation is the purest perfume that makes our identity in society.” – Justice Iyyer

The term defamation is derived from the Latin word “Diffamare’ which means ‘spreading evil or bad
information about someone’. As per the Black law dictionary, defamation is an offence wherein a
person’s character, fame, or reputation is injured by false and malicious statements. In simple terms,
under defamation, one person publicizes or issues a statement that is derogatory or untrue in nature
with the sole objective of destroying the image of that person in the society, workplace, etc.
Example: Rahul posted a comment on Vivek’s post that he had been in prison for 5 years in a murder
case. Now, if any person reads this comment on the post, then he will definitely think that Vivek is a
criminal and he spent 5 years in jail. This can totally tarnish the image of Vivek because no one will give
him respect and start avoiding him. If this statement is untrue, then it will be called a defamatory
statement and this offence is known as defamation.

In the Indian Penal Code, 1860, the offence of defamation is provided under Section 499. As per this
section, if some words, signs or visible representation is published or spoken with the sole intention of
causing harm to the reputation of a person or it has a reason to believe that this will destroy the
reputation of that concerned individual, then the offence of defamation is committed. The punishment
for defamation is provided under Section 500 of the IPC which is generally of 2 years with or without a
fine. The defamation comes under criminal as well as a civil wrong. A person who has been defamed can
sue for damage to the person who defamed him.

Meaning:
Defamation is injury to the reputation of a person. If a person injures the reputation of another he does
so at his own risk, as in the case of an interference with the property. The reputation of a human being
is a highly valuable property, and each person has a right to protect the same. A man’s reputation is his
property, and if possible, more valuable, than other property. This right is widely acknowledged as a jus
in rem i.e., a right enforceable against those who violate such right of a person. Defamation is either a
written statement (Libel) or in spoken/ oral form (Slander).

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Any intentional false communication, either written or spoken, that harms a person's reputation;
decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or
disagreeable opinions or feelings against a person, is called defamation.

Scrutton L.J. defined a defamatory statement as ‘a false statement about a man to his discredit’.

TYPES OF DEFAMATION
There are essentially two types of defamation:

• Libel
• Slender

Libel is a representation made in a permanent form like writing, movie, picture etc. For e.g., X printed
some advertisement saying Y is bankrupt but Y was not thus it was representation in a specific form.
Slander, on the other hand is the publication of a defamatory statement in transient form like spoken
words or gestures. For e.g., A questions the chastity of B in an interview, A is slanderous.

Libel defamation:
It refers to that defamation that harms the reputation of an individual, business group etc. by making a
false representation in the form of writing, picture, movie etc. This type of defamation is generally of
permanent nature and invites more stringent punishment. This defamation occurs while publishing an
article in the newspaper, making a comment on a social media platform, etc.
For example- A newspaper named “Z” publishes that Mr X has become bankrupt but in reality, Mr X is
not. So, this is a false statement made in a written form, thereby it is called libel defamation.

Slender defamation:
It refers to that defamation wherein a falsified statement is made by spoken words or by some other
transitory forms, whether visible or audible, such as a sign, gesture, hissing, etc. This type of defamation
generally attracts civil punishments and it is actionable only in proof of actual damage.
It becomes clear before the aforesaid definitions that the fundamental distinction between libel and
slander lies solely in the form in which the defamatory matter is published. However, In Indian
jurisprudence, unlike British law, both libel and slander are treated equally and both are considered as
an offence under Section 499 of the IPC. In the case of Hirabai Jehangir v. Dinshawdulji, the Bombay
high court both stated that no distinction shall be made between treating libel and slander as criminal
offences.

Youssoupoff v. MGM Pictures Ltd (1934)

The plaintiff (herself a Princess) complained that she could be identified with the character Princess
Natasha in the film ‘Rasputin, the Mad Monk’. On the basis that the film suggested that, by reason of
her identification with ‘Princess Natasha’, she had been seduced by Rasputin. The defendant contended
that if the film indicated any relations between Rasputin and ‘Natasha’ it indicated a rape of Natasha
and not a seduction.

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Held- In a cinema film, not only the photographic part of it is considered to be libel but also the speech
which synchronises with it also. Slesser LJ said that defamation could include words which cause a
person to be shunned or avoided: ‘not only is the matter defamatory if it brings the plaintiff into hatred,
ridicule, or contempt by reason of some moral discredit on [the plaintiff’s] part, but also if it tends to
make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiff’s] part.
Thus, she was awarded with damages.

DISTINCTION BETWEEN LIBEL AND SLANDER

➢ Libel is addressed to the eye while slander to the ear.

➢ In English Criminal law, only libel has been recognized as an offence, slander is no offence. -In
Indian law, both are criminal offences under Section 499 and 500 of IPC.
➢ Under law of torts, slander is actionable and libel is actionable per se.

In D.P. Choudhary v. Kumari Manjulata (1997)

The plaintiff– respondent Manjulata about 17 years of age belonged to a distinguished family and
studied B.A. There was a publication of a news item in a local daily Dainik Navjyoti that last night she ran
away with a boy named Kamlesh; but she had gone to attend night classes. The news item was untrue
and negligently published with utter irresponsibility. She was shocked and ridiculed by others. It was
held that the action was defamatory and she was entitled with the damages of Rs 10000/- by way of
general damages.

CONCEPT OF INNUENDO
It sometimes happens that a statement may have more than one meaning or some hidden meaning is
attached to the statement. Sometimes the statement may be prima facie innocent but because of some
latent or secondary meaning may be considered to be defamatory i.e., a statement may prima facie
appear defamatory but its natural meaning doesn’t state so or vice versa. When the natural and
ordinary meaning is not defamatory but the plaintiff wants to bring an action of defamation, he must
prove the latent or secondary meaning i.e., Innuendo which makes the statement defamatory. for e.g.,
the statement that a lady has given birth to a child is defamatory when the lady is unmarried. So, in that
situation, the aggrieved person needs to show the hidden meaning and the intention behind the 2nd
statement for proving defamation. Thus, proving defamation from the secondary meaning of a sentence
is known as Innuendo.

Illustrations
Mohan makes a statement that Ram is an honest man and he never stole his cricket bat. Now this
statement is at first instance may appear to be innocent, but it can be defamatory if the person to
whom it was made, interprets from this that Ram is a dishonest man and there are chances that he
could have stolen the cricket bat. It is an example of innuendo.

ESSENTIALS OF DEFAMATION

For constituting the offence of defamation, the plaintiff must prove or satisfy various essentials of
defamation that must be included to consider the statement defamatory. If the statement given by a

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person is following these essentials, the statement will be considered defamation. So, let us discuss the
essentials of defamation:

There are mainly 5 essentials of defamation:

i. Statement of fact
ii. Publication is required
iii. The statement must be defamatory and false
iv. The statement must refer to the plaintiff
v. Must cause serious harm

i. Statement of fact
Firstly, the statement given by the person must be a statement of fact and not a statement of opinion. If
a person is giving his opinion in the statement irrespective of the fact whether it’s true or false, it will
not be considered defamation. Let’s take the example to understand the difference between the
statement of fact and statement of opinion.

• Rohit says that I think Mohit is a criminal. Here, he is giving his opinion; this is a
statement of opinion. It will not be considered defamation whether it is true or false.
• Rohit says in an interview that Mohit is a criminal who had committed theft. Now, it is
important to note that this statement is presented assertively, so it is a statement of fact.
It will be considered defamation if the statement given by Rohit is false. But if the
statement given by Rohit is true, it will not be considered defamation.

However, it must be noted that mere hasty expression spoke in anger, or vulgar abuse to which the
object is not to injure the character or reputation of a person will not fall under the ambit of
defamation. For example – If “A” an employer scolds his employee B for not coming on time in front of
the whole staff, then B cannot claim that A has injured his reputation.

ii. Publication is required

Defamation is the publication of a statement which tends to lower a person in the estimation of right-
thinking members of society generally or which tends to make them shun or avoid that person. The
second ingredient of this offence is that there must be the publication of the false statement passed by
the offender. Here, the publication does not mean that it should be published in the newspaper only but
it means that the defamatory statement is communicated to the parties other than the defamed one.
Publication means making the defamatory matter known to some person other than the person
defamed and unless that is done, no civil action for defamation lies. If the person gives his statement
only to the person he wanted to blame, then it will not be considered defamation.
Example: A said to B in a personal encrypted chat that you are a criminal. Now, there is no
communication with other people. It will not be considered defamation. But if B passes the same
statement by posting it on the WhatsApp group where there are lots of members in the group it will
come under the definition of defamation.

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The standard to be applied is that of a right-minded citizen. A man of fair average intelligence, and not
that of a special class of persons whose values are not shared or approved by the fair-minded members
of the society generally.

In the case of Mahender Ram v. Harnandan Prasad, it was said when a defamatory letter is written in
urdu to the plaintiff and he doesn’t know urdu, he asks a third person to read it, it is not defamation
unless it was proved that at the time of writing letter defendant knew that urdu was not known to the
plaintiff.

Ram Jethmalani v. Subramaniam Swamy

An inquiry commission was setup for examining the facts and circumstances relating to assassination of
late Shri Rajiv Gandhi. The defendant, at a press conference alleged that the then Chief Minister of Tamil
Nadu had prior information that LTTE cadre would make an assassination bid on the life of Rajiv Gandhi.
The plaintiff was engaged as a sr. counsel to the then CM of TN. In discharge of his professional duties,
the plaintiff cross examined the defendant. During the proceeding, the defendant in the written
conclusive submission, alleged that the plaintiff had been receiving money from LTTE, a banned
organization. The statement by defendant was ex facie defamatory.

In Ramdhara v. Phulwatibai, it has been held that the imputation by the defendant that the plaintiff, a
widow of 45 year age, is a keep of the maternal uncle of the plaintiff’s daughter-in-law, is not a mere
vulgar abuse but a definite imputation upon her chastity and thus constitutes defamation.

In South Indian Railway Co. v. Ramakrishna, a ticket checker of railway asking for the identity proof and
other documents as a part of his duty is no defamation, as he has not published any defamatory
statement.

iii. The statement must be defamatory and false

The statement passed by the person must be in the nature of defamation and must be a false
statement. The statement which is true cannot be taken as a defamatory statement. The test to check
whether a particular statement is defamatory or not depends upon how a prudent member and of
society is likely to comprehend it. The accused person can’t take the plea that he doesn’t want to injure
his reputation thereafter. The statement made by the defendant must be one that in injuring the
reputation of the plaintiff and exposing him to humiliation. The statement can either be oral, or written,
or published, or in any other way by which it gets known to the public.

“A defamatory statement is one which has a tendency to injure the reputation of the person to whom it
refers, which tends, that is to say, to lower him in the estimation of right-thinking members of the
society generally and in particularly to cause him to be regarded with feelings of hatred, contempt,
ridicule, fear, dislike or disesteem.” – Salmond

iv. The statement must refer to the plaintiff

Before starting the proceedings of defamation, the plaintiff needs to prove that the statement of which
he complains particularly referred to him. Further, it is important to note that if the plaintiff reasonably
believes that the statement is referred to him, then the defendant may be held liable.

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Illustration- If a bank issues a notice to all its branches to not give the loan to any person belonging to
XYZ colony as the people of that locality are more often repeated defaulters. Now due to this a resident
named B of the XYZ colony didn’t get a loan anywhere in the city due to the bad reputation created by
the notice and he suffered significant monetary harm. Now, this statement will be considered
defamatory although it is not directly referred to him.

In Newstead v. London Express Newspapers Ltd., the defendants published an article stating that
‘Harold Newstead, a Camberwell man’ had been convicted of bigamy. The story was true of Harold
Newstead, a Camberwell barman. The action for defamation was brought by another Harold Newstead,
the barber. As the words were considered to be understood as referring to the plaintiff, the defendants
were liable.

The Delhi HC in Harsh Mendiratta v. Maharaj Singh said that an action for defamation was
maintainable only by the person who was defamed and not by his friends or relatives.

v. Must cause serious harm

Lastly, the false statement must have an effect on the reputation or financial growth of the plaintiff. If
there is no harm to the reputation or financial growth, the person cannot claim the [defamation]. For
example, if a person loses his job due to a false statement given by a person is considered as a financial
loss to the person and that person can claim defamation.

In the case of T.V. Ramasubha Iyer v. A.M.A Mohindeen, the Hon’ble Supreme Court held that the
defendants are liable for publishing a statement without any intention to defame the defendants. The
statement provided that, some particular person carrying the business of Agarbattis to Ceylon has been
arrested for the offense of smuggling and we should refrain from purchasing them. Later on, this
statement proved to be false and a person who was engaged in a similar agarbatti business faced
substantial harm. It was a defamatory statement.

Defamation is civil and criminal

In India, defamation is punishable under civil law as well as under criminal law. There is not much
difference between both the types. The core difference lies in the intent of the accused party and the
remedy reported by the aggrieved party.

Civil Defamation
The remedy in the case of civil defamation is also provided under the Law of Torts. In this type, the
person who is defamed can move either high court or subordinate courts and seek damages in the form
of monetary compensation. The accused person will not be subject to detention or a jail sentence.

Criminal Defamation
In criminal defamation, the person against whom a defamation case is filed might be punished for two
years imprisonment or fined or both. In India, both libel and slander [defamation] is a criminal offence
under section 499 and 500 of Indian penal code and thereby give the chance to the aggrieved person to

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file a criminal case against the person accusing him or her. In order to prove that it is a defamatory case
of either libel or slander, the statement must contain the following essentials of defamation.

• A defamatory statement must directly or indirectly be referred to the plaintiff

• The statement has been communicated or published to a minimum of one person other
than the plaintiff or victim.
In Criminal defamation, it is important that the allegation should be made with the malicious intent to
defame another. Further, it has to be proved beyond reasonable doubt that the act was being done to
lower the reputation of another.

DEFENCES AVAILABLE

There are three defences of defamation, namely:

i. Justification of truth
The truth is an absolute defence of the offence of defamation. It means that if a statement is true,
irrespective of the fact whether it is derogatory or cheap, the offence of defamation can never take
place. In civil defamation, it is well-settled law that if the statement is proved true, then the charge of
defamation automatically gets removed because the law can’t punish an individual for speaking the
truth.

However, under criminal law merely proving the truth will not solve the purpose and besides this, the
person needs to show that the statement was made in a bona fide manner. In the case of Radheyshyam
Tiwari v. Eknath, the court held that if the defendant can’t prove the validity of the statement, then it
will be presumed that the intention was malice.

In Alexander v. N.E. Rly., the plaintiff had been convicted of riding a train from Leeds without having
purchased a valid ticket. The penalty was a fine and a period of imprisonment of fourteen days if he
defaulted on the fine. However, following the conviction, the defendant published a notice that the
plaintiff was convicted and issued a fine or three weeks imprisonment if in default. The plaintiff alleged
that the defendant had committed libel by describing the penalty issued to him inaccurately. The
defendants argued that the conviction was described with substantial and sufficient accuracy and the
words so far as they differed in their literal meaning from the words of the conviction were not libellous.

Judgment was given in favour of the defendants. The gist of the libel was that the plaintiff was
sentenced to pay a sum of money and, in default of payment, to be imprisoned. Blackburn J. noted that
the substance of the libel was true but the question was whether what was stated inaccurately, was the
gist of the libel.

ii. Making Fair comment

The term fair comment involves making or putting one’s opinion in matters relating to our national
interest. This is a valid defence against the offence of defamation. For taking this exception, one needs
to prove the following things –

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 1. It must be a comment. In other words, it means that it shall be an expression of opinion
rather than an assertion of fact.
2. The comment must be fair and it should not be based upon untrue facts.
3. The matter commented upon must relate to the public interest. Matters like
administration of government departments, courts, ministers, public meetings,
textbooks, etc. falls under the ambit of public interest.

For a person to avail this defence, he must prove that the statements made by him were an opinion
expressed and not a forceful statement of facts. He must prove that expression of such an opinion was
fair and was for the purpose of public interest. To determine that the statement made by the defendant
is a comment or not depends on how he has used the language or in what context has he stated it.

The comment made by the defendant cannot be considered as a fair comment if such statement is not
true. The matter on which such comments are made must be of public interest such as regarding
government departments or any public company, or local authorities, etc.

In the case of K.S. Sundram v. S. Vishwanathan, the defendants published about the deterioration in
the performance of management of the company of which the plaintiff was the President. It was held by
the Madras High Court that there was no personal anger established for a writer who publishes articles
which are defamatory for the plaintiff. It was also held that the articles published contained fair
comment and are not statements of defamation.

iii. Privilege
There are certain occasions when the law recognizes the right to freedom of speech outweighs the
plaintiff’s right to reputation, the law treats those occasions as ‘Privileged’. The word privilege means
giving a special status. This special status is generally accorded when the law feels that the right of free
speech overweighs the right against defamation. These privileges are generally of 2 types.

(a) Absolute privileges – In these matters, complete immunity is given to a person speaking and no
action for defamation can lie against him. It includes the occasion of

• Parliamentary proceedings– As per Article 105(2) of the Indian constitution, the

parliamentarians can speak anything during the course of business of parliament and no
action of defamation would lie against them.
• Judicial proceedings– This protection has been accorded to judges, counsels, witnesses,
and parties to a suit under the Judicial Officers Protection Act of 1850.

(b) Qualified privilege – In this type of privilege, though the immunity is given to the speaker it is not
absolute in nature. For availing of this defence, the impugned person needs to prove that the statement
has been made without an element of Malice. The defendant has to prove that statement was made on
a privileged occasion fairly.

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Getting Apology from the Aggrieved Party
If the person who has passed the defamatory statement asks for an apology by the defamed person and
the defamed person accepts the apology, then also it will not be considered defamation.

In the recent case of Arun Jaitley v. Arvind Kejriwal, the court held that though the statement said by
Arvind Kejriwal and his 5 other leaders appears to be defamatory but the matter needs to be completely
disclosed as all the defendants apologized for their actions and apology is granted to them.

iv. Communication between husband and wife

As per Section 122 of the Indian Evidence Act, 1872 it is believed that the communication between
husband and the wife is considered as “privileged communication” and it is outside the purview of
defamation. The law believes that husband and wife are the lifelong partners with whom we share our
all sentiments thus there cannot be any publication and consequently no defamation. Thus, the
communication between husband and wife will be considered as an exception of section 499 of the
Indian Penal Code, 1860.

PUNISHMENT FOR DEFAMATION

The punishment for criminal defamation is provided under Section 500 of the Indian Penal Code, 1860. If
it is proved that if the accused is guilty of the offence of defamation before the court, then he/she will
bear the following punishment

• Imprisonments for a period of up to 2 years

• Or Fine
• Or both
This offence is a non-cognizable, bailable or compoundable offence.

➢ Who bears the burden of proof to prove defamation?

The liability to prove the defamatory statement lies on the plaintiff who has filed the defamatory
petition. He/she has to prove before the court that the statement referred to him or her is defamatory
in nature and publicized by the defendant which severely injured his/her reputation in the society.

Mahendra Ram v. Harnandan Prasad

A letter written in Urdu was sent to the plaintiff. Therefore, they needed another person to read it to
him. It was held in the case that since the defendant knew the plaintiff does not know Urdu and he
needs assistance so this act of the defendant amounted to the offence of defamation.

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 NUISANCE

The word “nuisance” is derived from the French word “nuire”, which means “to hurt, or to annoy”. The
Latin term for nuisance is “nocere” which means “to cause harm”. Annoyance can be from a variety of
intangible things such as sight, smell, noise, etc. In other words, a nuisance is an act of indirect
interference to the enjoyment of one’s property by causing any kind of discomfort. The Law of Tort
recognizes Nuisance as an offence for which the aggrieved party can approach the Court for relief.

DEFINITIONS:
Various Jurists and scholars have defined Nuisance in the following ways-

Stephen defined nuisance to be “anything done to the hurt or annoyance of the lands, tenements of
another, and not amounting to trespass.”

As per Salmond, “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”.

Bermingham says that, “nuisance in an unlawful interference with a person’s use and enjoyment of
land, or of some right over, or in connection with it”.

ESSENTIAL ELEMENTS OF NUISANCE

To constitute Nuisance as an actionable tort, it is essential that there exist:

▪ A wrongful act.
▪ Such act has resulted in the interference with the use or enjoyment of land, or some right
over, or in connection with the land;
▪ Because of the interference there must be damage or loss or inconvenience or annoyance
caused to another.
Inconvenience must be what law considers as substantial or material in nature. Mere sensitive personal
discomfort does not amount to a Nuisance. The essence of the tort is undue interference with the use or
enjoyment of land.

Examples:
1. Mr. A starts a cement factory on his own land. Loud noises and dust from the factory
disturbs his neighbor Mr. B and pollutes his surroundings. Here, Mr. A commits a nuisance
by disturbing Mr. B’s right to enjoy his property and surroundings peacefully.
1. Mr. X takes his herd(group) of cattle through the main road thereby obstructing the passage
of people passing by. Mr. X has created a Nuisance for the people on the road by blocking
their way. Also, the main road is not meant for animals but vehicles.

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In Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978, the plaintiffs’-appellants sued the defendants-
respondents and asked for a permanent injunction to restrain them from exhibiting the film “Jai
Santoshi Maa”. It was contended that the exhibition of the film was a nuisance because the plaintiff’s
religious feelings were hurt as Goddesses Saraswati, Laxmi and Parvati were portrayed as jealous
women and were ridiculed in the film. It was held that hurting religious feelings was not an actionable
wrong. Moreover, the plaintiffs were free and not compelled to watch the movie.

In Halsey v. Esso Petroleum Co. Ltd., AIR 196A, the defendant’s depot dealt with fuel oil. Acid smuts
containing sulphate were emitted from the chimneys and were visible falling outside the plaintiff’s
house. There was proof that the smuts had damaged clothes hung out to dry in the garden of the
plaintiff’s house and also paintwork of the plaintiff’s car which he kept on the highway outside the door
of his house. The depot emanated a pungent and nauseating smell of oil which went beyond a
background smell and was enough to affect a sensitive person but the plaintiff had not suffered any
injury in health from the smell. During the night time, the noise from the boilers was at its peak and
caused windows and doors in the plaintiff’s house to vibrate and affected the plaintiff’s sleep. An action
was brought by the plaintiff for a nuisance.
The defendants were held liable in respect of emission of acid smuts, noise and smell.

Differentiation between Nuisance and Trespass

The definition of nuisance may sound similar to that trespass, however, there are two different
concepts. Some of the differences are-
• Trespass is direct interference; on the other hand, Nuisance is consequential.
• Trespass is interference with a person’s possession of land; however, in Nuisance, there
is interference with a person’s use or enjoyment of land.
• In trespass, the interference is usually through some material or tangible objects; on the
other hand, nuisance can be committed through intangible objects also as gas, noise
smoke, etc.
• Trespass is actionable per se, but in case of nuisance, it must be proved that damage is
caused.

KINDS OF NUISANCE
Nuisance is of two kinds-

1. Public Nuisance or Common Nuisance

It is defined under section 3 (48) of the General Clauses Act, 1897 as, “Public nuisance is an
unreasonable, unwarranted, or unlawful interference with a right common to the general public. In
other words, a public nuisance is an act affecting the public at large or some considerable portion of it;
and it must interfere with rights which members of the community might otherwise enjoy. Putting it
simply, public nuisance is an act affecting the public at large, or some considerable portion of it and it
must interfere with rights which members of the community might otherwise enjoy. Thus, acts which
seriously interfere with the health, safety, comfort or convenience of the public generally or which tend
to degrade public morals have always been considered a public nuisance.”

It comes under the domain of criminal acts under the Indian Law and does not allow civil action. Section
268 of the Indian Penal Code, defines a public nuisance as “an act or illegal omission which causes any

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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 persons who may
have occasion to use any public right.”

To constitute a Public Nuisance-

1. The plaintiff must show a particular injury to himself beyond that which is suffered by the
rest of the public i.e. he must show that he has suffered some damage more than what the
general body of the public had to suffer.
2. Such injury must be direct, not a mere consequential injury; as, where one is obstructed, but
another is left open.
3. The injury must be shown to be of a substantial character, not fleeting or evanescent.

In Solatu v. De Held (1851), the plaintiff resided in a house next to a Roman Catholic Chapel of which
the defendant was the priest and the chapel bell was rung at all hours of the day and night. It was held
that the ringing was a public nuisance and the plaintiff was held entitled to an injunction.

In Attorney General v. P.Y.A. Quarries, (1957), action at the instance of the Attorney General, it was
held that the nuisance from vibration causing personal discomfort was sufficiently widespread to
amount to a public nuisance and that injunction was rightly granted against the quarry owners
restraining them from carrying on their operations.

Although such obstruction may cause inconvenience to a lot of people but none can be allowed to file a
civil action for it, otherwise, there will be hundreds of actions for a single action only. To avoid this, the
law makes Public Nuisance itself a punishable offence under criminal law.
In a lot of cases, a person may suffer some special damages which are different from that of the public.
In such a case a civil right of action is available to the affected person. Although, the following
conditions must be proved–
1. The person must show a particular injury caused to him that is beyond what is caused to
the public in general.
2. Such damage has to be direct and not consequential.
3. The injury must have a huge effect.

In Dr. Ram Raj Singh v. Babulal, the suspect created a brick grinding machine adjacent to the premises
of the plaintiff, who was a medical practitioner. The brick grinding machine-generated dust impured the
environment. The dirt came inside the chamber of the plaintiff and it caused troubled for him and his
patients, and it caused red coating on their clothes, caused by the dirt, and could be apparently visible.
It was held that the plaintiff has been proven to have specific damage and a permanent injunction was
issued against the defendant preventive him from running his brick grinding machine there.

2. Private Nuisance
A nuisance interferes with the right of a specific person, individual or entity, it is considered a private
nuisance. Private nuisance lawsuits generally arise between neighbors, with one property owner being
negatively affected by the acts of his/her neighbor. It gives the affected person a claim of “Right in

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Personam”. Example – When a neighbor regularly plays his music at a very high volume during late
night. The act becomes a private nuisance and a civil action may lie for damages or an injunction or
both.

Private Nuisance refers to the unreasonable interference with the use or enjoyment of land of the
plaintiff resulting in some injury.

The essentials the constitute private nuisance are:

(i) Unreasonable interference:

• Every interference isn't always a nuisance. To represent a nuisance, the interference
ought to be unreasonable. Thus, someone simply can’t deliver action for the
inconvenience made by the traffic noise if his/her house is near a road, nor can someone
sue his neighbor for playing or listening to music. The interference must be unreasonable.

In Radhey Shyam v. Gur Prasad, Gur Prasad and another filed a case against Radhey Shyam and others
for a permanent injunction to stop them from putting in and running a flour mill within the premises
occupied by the defendant. The complainant in the case alleged that the mill was inflicting noise that as
a result was poignant about the health of the plaintiff.

The court command that by running a flour mill in an exceedingly residential area, the litigant was
inflicting the nuisance that conjointly settled the health of the plaintiff.

• A reasonable act does not become unreasonable and actionable when the damage is
caused only because of the sensitiveness of the plaintiff. For e.g., If few noises do not
cause any trouble to a normal person but it only disturbs the plaintiff due to his over
sensitiveness, then it is no nuisance against the plaintiff.

• A lawful act does not become unlawful just because it is done with an evil motive. It is
the act that should be taken into consideration, not the motive. However, if the act done
by the defendant with an evil motive becomes an unreasonable interference, then it is
actionable.

(ii) Interference with the use/enjoyment of Land

Interference may either cause:

(a) injury to the property itself, or

(b) injury to the comfort or health of occupants of certain property.

(a) Injury to the property itself – An interference that is not authorized with the use of the property of
another person through some object either tangible or intangible, which causes injury to the property, is
actionable as nuisance. The interference may be through water, smoke, fumes, branches of trees, etc.

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In St. Helen’s Smelting Co. v. Tipping, fumes from the defendant company’s works damaged plaintiffs’
trees and shrubs. Such damage caused injury to the property and hence the defendants were held
liable.

(b) Injury to comfort or health – Injury to comfort or health is actionable as a nuisance. The standard of
comfort varies from place to place and from time to time. The test of discomfort isn't done keeping in
mind of a selected person however the test is how a median man residing within the same space would
take it.

(iii) Damage
Actual damage is required to be proved in an action for nuisance.

In Fay v. Prentice, a cornice of the defendant’s house projected over the plaintiff’s garden. It had been
held that the mere fact that the cornice projected over the plaintiff’s garden advances a presumption of
fall of rainwater into and damage to the garden and the same need not to be proved. It was a nuisance.

DEFENCES TO NUISANCE

1. Prescription
A prescription is a title acquired by use and time and is allowed by law. A person claims any property
because his ancestors have had the possession of it for the period prescribed by law. This is mentioned
under Section 26 of the Limitation Act & Section 15 of the Easements Act.

If a nuisance has been peacefully and openly being going on without any kind of interruption for twenty
years then the defence of prescription is available to the party. On the expiration of this period, the
nuisance becomes legalized ab-initio. The time period of twenty years starts from the day when the
nuisance began.

The easement can be acquired only against specific property, not against the entire world.

▪ In Elliotson v. Feetham (1835) it was held that a prescriptive right to the exercise of a
noisome trade on a particular spot may be established by showing twenty years used by the
defendant.
▪ In Goldsmid v. Turubridge Wells Improvement Commissioners (1865), it was held that no
prescriptive right could be obtained to discharge sewage into a stream passing through the
plaintiff’s land and feeding a lake therein perceptibly increasing the quantity.
▪ In Sturges v. Bridgman (1879), A had used certain heavy machinery for his business for
more than 20 years. B, a physician neighbor, constructed a consulting room adjoining A’s
house only shortly before the present action and then found himself seriously
inconvenienced by the noise of A’s machinery. B brought an action against A for abatement
of the nuisance. B succeeded. The court held that A cannot plead prescription since time
runs not from the date when the cause of the nuisance began but from the day when the
nuisance began.

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 1. Statutory Authority –
Where a statute backs a particular act or the use of land in a particular way, all remedies whether by
way of indictment or action, are taken away; provided that every reasonable precaution consistent with
the exercise of the statutory powers has been taken. Statutory authority may be either absolute or
conditional.

In case of absolute authority, the statute allows the act notwithstanding the fact that it must necessarily
cause a nuisance or any other form of injury.

In the case of conditional authority, the State allows the act to be done only if it can be without causing
nuisance or any other form of injury, and thus it calls for the exercise of due care and caution and due
regard for private rights.

In Vaughan v. Taff Vale Rly. (1860) 5 H.N. 679, the defendants who had authority by statute to
locomotive engines on their railway, were held not liable for a fire caused by the escape of sparks.

REMEDIES FOR NUISANCE –

The remedies available for nuisance are as follows:

1. Injunction- Temporary injunction is granted on an interim basis which might get reversed or
confirmed. If it’s confirmed, it takes the form of a permanent injunction.
2. Damages- The damages offered to the aggrieved party can be nominal, statutory, or
exemplary damages. Nominal damages are granted in recognition of the harm that has been
caused to the plaintiff. Statutory damages are decided by the statute specifically
independent of the harm caused to the plaintiff. The purpose of Exemplary damages is to
punish the wrongdoer and make him repent his actions.
3. Abatement- The summary remedy or removal of a nuisance by the party injured without
having recourse to legal proceedings.

The law of nuisance is mostly uncodified. Over the years it has developed through the interpretation of
different laws and precedents delivered by the judiciary in its various judgments. The decision in cases
concerning nuisance is delivered on a case-to-case basis. Indian Judiciary has borrowed quite intensively
from the English principles and from the common law system along with their own precedents. This has
resulted in a sound system of law being developed that ensures fairness and well-being of all i.e., the
parties and the society at large.

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