CHAPTER 28 NUISANCE The origin of the tort of nuisance is to be found in the French word nuire and

latin term nocere which means to hurt or to annoy. According to Blackstone nuisance (nocumentum) is
something that causes damage, inconvenience and annoyance. Definition Federick Pollock has defined
nuisance as a wrong done to a person by unlawfully disturbing him in the enjoyment of his land, or in
some cases in the exercise of a common right. According to Dr. Winfield, nuisance as a tort means an
unlawful interference with a person's use or enjoyment of land, or some right over, or in connection
with it. The Caterference may be by way of noise, vibrations, heat, smoke, smell, fumes, water, gas.
electricity, excavation or disease producing germs etc. In short, any unlawful interference with the
health, safety or comfort may amount to nuisance. He opines that in modern sense nuisance is that
branch of law of tort which is mostly concerned with 'protection of the environment.2 Thus nuisance
actions are concerned with pollution by oil or noxious fumes. interference with leisure activities,
offensive smell from premises used for animals or noise from industrial installations etc. He further
holds that no precise or universal formula is possible to determine whether an act constitutes a nuisance
or not by abstract consideration of act itself, without reference to all the relevant circumstances of the
particular case, the time and place of its commission, the gravity of harm, the manner of committing it,
whether it is done with malice or in the reasonable exercise of one's right, whether it is transitory or
permanent, occasional or continuous and so on. The most part of law of nuisance has been concised in
the English Environment Act, 1995. and the Statutory Nuisance Act, 1993. Dr. Salmond defines nuisance
as a wrong consists in causing or allowing without lawful justification, the escape of any deleterious
thing from a person's land or from elsewhere into land in possession of the plaintiff, eg., water, smoke,
smell, fumes, gas. noise, heat, vibration, electricity, disease, germs, animals, etc. The tort of nuisance is
generally a continuing wrong which relates to unlawful interference with a person's use or enjoyment of
land or of some right over, or in connection with it. Nuisance is both, a crime as well as a tort Stephen
has defined nuisance as an unlawful interference in the use or enjoyment of land or heriditament which
causes annoyance or damage to a person, but which is not a trespass. For instance, water, smoke,
fumes, vibration, gas, noise, heat etc. may be the cause of nuisance if they cause annoyance to a person
in peaceful use or enjoyment of his land or a right relating to land. Nuisance can be caused by an act or
omission. The origin of tort of nuisance may be traced in the Latin maxim sic utere tuo ul alienum non
laedas which means "so use your land or property as not to cause injury or damage to the property or
land of others". In other words, a person should not use his land or right of land in a manner which case
obstruction, inconvenience or annoyance to others in the use or enjoyment of the land or right to land
Nuisance is different from Trespass It may be stated that nuisance and trespass are similar insofar as in
either case the plaintiff has to show his possession of the land. At times, the two may even coincide and
an act of nuisance may also constitute a tort of continuing trespass, but there is a material difference
between the two and the main points of distinction are as follows (1) If interference in use of enjoyment
of land and of a right over it is direct, it is a wrong of trespass but if it is consequential, it will be a tort of
nuisance. For example, to throw stones upon the neighbour's premises is trespass but to allow stones
from a rainous chimney to fall upon his premises will be a tort of nuisance (2) Trespass is an interference
with a person's possession of land whereas as nuisance is an interference with a person's use or
enjoyment of land. That is to say, there could be interference with enjoyment of land without interfering
with the possession. For example, creating offensive smell or noise on one's land could be a nuisance to
the next- door neighbour though there is no interference with his possession over the land (3) In case of
trespass, the interference is always through some tangible object, but muisance can be committed
through the medium of intangible objects such as smell. noise, vibrations etc (4) Trespass is actionable
per se. therefore the plaintiff is not required to prove damage, but nuance is not actionable per se and
the plaintiff has to prove special damages suffered by him in order to succeed in or action for nuisance
Main Characteristics of Nuisance It is generally accepted that nuisance is an injury to the right of a
person in possession of property to undisturbed enjoyment of it and results from an improper use by
another person of his own property. This is expressed by the latin maxim sic where to alienum non ledar
which means "so use your own property as not to injure another But C), Erle in Bonomi v Backhouse, has
called this maxim as a mere verbitage: because a party may damage the property of another where the
law permits, and he may not where the law prohibits; so the maxim can never be applied until the law
ascertained, and therefore, it is superfluous Holmes called it as "an empty general proposition which
teaches nothing but a benevolent yearning" It is said that nuisance is actionable only if it causes both
damage and injury. But it is submitted that an injury to a right eg. night of way or of use of waters may
be actionable even without the proof of damage A sudden explosion by fusing of electric main was held
to be a nuisance In Halsey Exo Petroleum Co. Ltd. the defendants were dealing with fuel oil. In its tights
from the chimneys projected from the boiler house, acid smuts containing sulphate were emitted and
were visible falling outside the plaintiff's house. There was evidence that the simuts had damaged the
clothes hung out to dry in the garden of the plaintiff's house and it also caused damage to the paint of
the plaintiff's car which he kept outside the door of his house. The defendant's depot emitted a pungent
and nauseating smell of oil which was enough to effect the health of a sensitive person though plaintiff
did not suffer any injury to his health from this smell. During night the noise from the boilers was at its
peak causing vibrations in the doors and windows of the plaintiff's house and was a potent cause of
disturbing the sleep of the plaintiff and his family. On an action being brought against the defendants for
muisance caused by acid smuts, smell and noise, they were held liable. In yet another case, namely,
Hollywood Silver Fox Farm Ltd. v. Emmett, the plaintiff erected a notice board on his farm as Hollywood
Silver Fox Farm' to which his neighbour Emmett had an objection because he felt that the board would
obstruct the development of his estate and therefore, asked the plaintiff to remove it. When the plaintiff
did not remove the Board, the defendant sent his son to discharge a twelve-bore gun loaded with black
powder on the border of his land near vixen's pens. When objected to by the plaintiff, the defendant
said gun firing was for the purpose of shooting rabbits. The gun shot created horror among the plaintiff's
silver foxes and disturbed their breeding for which the plaintiff sued the defendant for damages
complaining nuisance. The defendant pleaded that he had right to use his land as he liked and therefore,
his act did not amount to nuisance. But rejecting the defendant's defence, the Court held him liable for
nuisance and held a person should so use his land as not to interference with the enjoyment of land by
another person, of his land". The High Court of Punjab summarised the law relating to nuisance in its
decision in Ramlal v. Mustafabad Oil & Cotton Ginning Factory and laid down the following general
principles:- 1. Nuisance is a subjective and a relative term in the sense that what may be an
inconvenience or annoyance to one person may not be necessarily so for another. Again, what may
amount to nuisance in one place may not be so in other place under different circumstances. 2. The
degree of inconvenience and annoyance also varies from person to person depending on their individual
sensitiveness. The degree of patience or tolerance being variable among persons, their reaction to
inconvenience and annoyance is bound to vary according to their temperament. 3. The annoyance or
interference which warrants a relief against the nuisance complained of must be real and substantial for
law takes no notice of trivial or fanciful inconveniences resulting from delicacy or fastidiousness. 4.
Nuisance, if continued unabated is actionable as a continuing wrong 5. In certain circumstances and
situations even a natural tendency to cause damage or injury and a substantial fear or a reasonable
apprehension of danger may amount to nuisance. 6. Vibrations and jarring caused to the plaintiff's
premises and noises exceeding a certain decibel limit and physical discomfort caused to persons of
ordinary sensibilities are actionable as nuisance. The High Court of Gujarat in Ushaben Navinchandra
Trivedi v. Bhagyalaxmi Chitra Mandir, commented that the main characteristics of an actionable
nuisance are that it should be a wrongful act which causes injury or damage or annoyance or discomfort
to others and such annoyance, discomfort or inconvenience should be substantial and not trivial. The
High Court of Andhra Pradesh in B. Venkatappa v. B. Lovis, observed that emission of smoke or fumes
from chimneys being injurious to health and natural surroundings was an actionable nuisance as it
results in discomfort and annoyance to the residents of the nearby locality. Categories of Nuisance
There are two categories of nuisance, namely, (1) public nuisance, and (2) private nuisance. There may,
however, cases where the same conduct may amount to both, public as well as the private nuisance.
Public Nuisance A public nuisance besides being a tort is also a crime? while private nuisance is only a
tort. Public nuisance is one which materially affects the reasonable comfort and convenience of life of a
sizable class of public which come within the sphere of its operation. The question whether the number
of persons affected is sufficient to constitute a sizable class is one of fact in each case: For example, a
malicious bomb hoax call may be treated as a public nuisance. Denning, L.J.. in Attorney-General v.
P.Y.A. Quarries Ltd., observed, a public nuisance is one which is so widespread in its range or so
indiscriminate in its effect that it would not be reasonable to expect one person as distinct from the
community at large to take proceedings to put a stop to it. Where the activities like quarrying, blasting,
stones and splinters projected from quarry, dust, noise, vibration etc. affects the public or a cross-
section of society, it will be actionable as a public nuisance and it does not matter that in fact only a
small number of people use the facility.4 Where there existed a public nuisance in a locality due to open
drainage, heaps of dirt, pits and public excretion by human beings for want of lavatories and
consequently breeding of mosquitoes, the court ordered the Municipality under Section 123 of the
Municipality Act to take affirmative action to remove the course of public nuisance, Section 133 of the
Code of Criminal Procedure, 1973 empowers the District Magistrate to pass order for the removal of
public nuisance. For the purpose of this section the word 'public' may include a class or community
residing in a particular locality: Similarly, 'public place' generally implies a place to which the public in
general have access by right, permission, usage, custom or otherwise. The Supreme Court of India in
Ram Avtar v. State of U.P. held that conduct of a trade in vegetables was not injurious to public health
nor was it a cause of physical discomfort to the community. Therefore, an order restraining such trade
was not at all maintainable. In this case, the appellants carried an trade of auctioning vegetables in a
private house. The persons who bought vegetables for sale kept their carts on the public road which
caused obstruction to traffic. The noise caused due to auctioning was a cause of discomfort for persons
residing in the locality. The Magistrate by an order restrained auctioning of vegetables in the private
house and the order was upheld by the High Court In appeal, the Supreme Court set aside the order and
judgment of the High Court and held that a trade like auctioning of vegetables which has to be carried
on as necessary for the well being of the community, some amount of noise has to be borne by the
public and therefore, a little discomfort, if it is in the interest of the public at large must be tolerated by
the residents of that locality. Public nuisance is an interference with the rights of public in general and is
punishable as an offence. Obstructing a public road by digging a trench or constructing structures on it
are examples of public nuisance. Undoubtedly, such obstructions may cause inconvenience to several
persons who pass through that road but each one of them cannot be allowed to bring a civil suit for
that, the reason being that there would be multiplicity of suits for a single cause of nuisance and it will
the practically impossible for the Courts to deal with each one of the suits separately. In order to avoid
this, law. makes public nuisance an offence under Section 268, IPC. However, where any individual
suffers special or particular damage.! different from inconvenience to public as a whole, he may sue the
defendant for the tort of nuisance but this is possible only when two or more persons, with the prior
permission of the Attorney-General have filed the civil action In Rose v. Miles, the defendant wrongfully
moored his barge across a public navigable creek, which blocked the way of plaintiff's barges and he had
to incur huge expenditure for unloading the cargo and transporting it by land. The Cours accepted the
special damage caused to the plaintiff and therefore, the defendent was held liable for public nuisance
In Campbell Paddington Corporation, the plaintiff owned a building in London The funeral procession of
King Edward VII was to pass from the highway just in front of the plaintiff's building. Taking advantage of
the location of her building she accepted payments from certain persons for permitting them to occupy
the seats at the first and second floor windows of her building to have a full view of the procession
which was to pass through the highway. But a couple of days before the date of funeral procession, the
defendant Corporation erected a stand on the highway in front of the plaintiff's building for the guests
to have a view of the procession. The stand thus obstructed the view from the windows of the plaintiff's
building and she was, therefore, deprived of the profitable contracts of letting out the seats in her
building. She sued the defendant Corporation for public nuisance claiming special damages due to
construction of stand on the highway. The Court held the defendant liable and ordered the Corporation
to compensate the plaintiff for the amount which she had lost due to cancellation of contracts with
persons who had booked seats in her building In Benjamin v. Storr, it was held that acts incidental to use
of highway like loading ur unloading of goods in front of a godown or a shop or making the cart, van or
carriage stand in front of premises for picking up passengers or allowing them to get down would not
amount to obstruction for the purpose of nuisance if it is done promptly or reasonably for a short time.
In the instant case the horse-carts and horses were made to stand in front of the plaintiff's house for
long hours which caused foul smell and obstructed sun-light entering his house. The defendants were,
therefore, held liable and were restrained to continue nuisance by an injunction order. In Dwyers.
Mansfield, the defendant, a shopkeeper had a licence to sell vegetables and fruits. At one time, there
was shortage of potato supply and therefore, he sold potato only on ration card and there were always
queues of customers at his shop extending upto highway which caused obstruction for neighbouring
shops and highway users. The other shopkeepers sued the defendant for public nuisance. The Court
rejected the suit on the ground that neither nuisance nor damage was proved by the plaintiff's.
Moreover, the so called obstruction was due to distribution and supply of a food item for the public
which the defendant was carrying on in a systematic manner and was thus helping for a nobel cause and
there was nothing unreasonable or unnecessary under those circumstances. The queue and the rush of
customers at defendant's shop was due to short supply of potatoes hence it was not the creation of the
defendant. In the case of Attorney-General v. P.Y.A. Quarries Ltd.. it was held that a nuisance may be
treated as a public nuisance if it materially affects the reasonable comfort and convenience of life of a
sizable class of persons. In this case, certain quarry owners conducted their operations in a manner that
became the cause of inconvenience and discomfort for the neighbouring residents due to the dust and
vibrations from explosions in dry weather polluting their homes and gardens. The vibrations caused
structural damage to their houses. When the plaintiff's moved the court for an injunction against the
defendants, the latter took some steps to mitigate the nuisance, but it could not be completely
eliminated. Expert evidence showed that nuisance caused by vibrations could be avoided by the exercise
of proper care. In an action brought by the Attorney-General on behalf of the local residents, the court
granted injunction restraining the defendants from carrying on the business of quarrying in a manner so
as to cause a nuisance to the neighbouring residents by dust and by vibrations. On appeal, the grant of
injunction was held to be justified in the circumstances of the case. Denning. L.J., in this case observed,
"public nuisance involves some degree of repetition or continuance, but an isolated act may amount to a
public nuisance if it is done in such circumstances that the public right To condemn it should be
vindicated". The question of public nuisance caused due to noise was involved for decision before the
Court in Soltou v. De Held 3 The plaintiff who was residing next to the Roman Catholic Church of which
the defendant was the priest complained of nuisance caused by cont muous ringing of Church bell at all
hours of day and night. The Court held it to be a case of private nuisance and therefore, the plaintiff was
entitled to an injunction. But in Heath v. Mayor of Brighton, the Court refused to grant injunction to the
trustees of a Brighton Church to restrain "a buzzing noise" from the defendant's adjacent power station
on the ground that it caused no annoyance to any other person except the plaintiff, nor was the noise
such as could detract the attention of devotees coming to the Church. The Court, therefore, observed
that over-sensitiveness of the plaintiff could not be held to be a sufficient cause for grant of injunction.
In Leanze v. Egerton, the plaintiff sustained injuries due to falling of the glass pieces from the
defendant's house-window while he was passing through the highway in front of his house. This incident
occurred on Tuesday. The glass of the plaintiff's window had broken due to air raid of the preceding
Friday but the next two days, i.e., Saturday and Sunday being holidays the plaintiff could not get the
glasses of the window replaced or repaired. Held, the defendent had the knowledge of possibility of
nuisance but he overlooked it and therefore, he was held liable to the plaintiff for public nuisance. In
Hunter v. Canary Wharf, several hundred persons complained that their television reception had been
impaired by the presence of the Canary Wharf tower which was over 800 feet high. Some of the
plaintiffs were house-holders but others, such as spouses, children or lodgers had no property interest in
the houses where they lived. Held, interference with television reception by a physical obstruction could
not be held as a public nuisance nor could it be called a private nuisance. In the case of George Philip v.
Subbammal, the plaintiff was residing in his building having a garden in it. To the north of this building
there was open land which was purchased by the defendant who constructed a cashewnut factory in
that land. The plaintiff complained that this factory was a nuisance to him and those residing in his
building premises and also to his garden. The smoke emitted from the factory due to roasting of
cashewnuts, was spreading all over the plaintiff's premises causing damage to his cultivation and
adversely affecting public health in the locality. The plaintiffs further alleged that there was no
scavenging arrangement for the latrines attached to the factory and that the foul odour emanating from
the latrines was an additional cause of nuisance. discomfort and inconvenience to the plaintiff and other
residents of his building premises. Dismissing the petition, the Court held that the grievance of the
plaintiff appeared to be more imaginary than real and no case of public nuisance was made out to justify
grant of injunction. The suit by the plaintiff therefore, deserved to be dismissed with costs. In Ram Raj
Singh v. Babulal, the High Court of Allahabad observed that when a person suffers some special or
particular damage, different from what is inflicted upon public as a whole, a civil right of public nuisance
accrues which becomes a private nuisance so far as the person suffering special damage is concerned.
Thus the expression 'special damage in the context of nuisance means damage caused to a party in
contradiction to the public at large. The High Court of Madras in Pakkle v. Aiyasami Ganpath, found the
plaintiff entitled to an injunction for preventing the continuance of a public nuisance. In this case the
plaintiff's filed a representative suit on behalf of the villagers to restrain the defendants from laying salt
pans in the bed of the tank belonging to the Government, thereby making water in it useless to people
for bathing, drinking and also for use of their cattle. It was found that the right to use of water from the
tank existed from times immemorial and it had become saltish due to laying of salt pans in the tank's
bed. The Court noted that even though the interference was not in respect of land belonging to the
plaintiffs. they were nevertheless entitled for an injunction as the defendant's act amounted to a public
nuisance. In Bhartiya Land Mortgage Bank v. Ahmad Bhai Habib Bhai & Keshav Ramchandra, the plaintiff
owned several rooms which he had rented out and earned a good income by way of rent. The
defendants opened a cotton mill adjacent to these rooms with the result the room remained vacant
without tenants due to smoke and obnoxious smell coming out from the defendant's mill. On plaintiff's
suit against the defendant, the Court held it to be a case of public nuisance and granted injunction
directing the defendant to initiate adequate measures to prevent emission of smell and smoke from
their cotton mill. In Municipal Corporation, Delhi v. Subhagwanti, the Supreme Court held the Municipal
Corporation liable for public nuisance for neglect in proper maintenance of the clock tower located in
Chandni Chowk which fell due to its ruinous condition causing injuries to several persons passing
through the road. Taking serious note of the astray cattle roaming about unattended on the public roads
the High Court of Rajasthan in Sanjay Phophli v. State of Rajasthan, directed the Government to issue
instructions to the municipal officials to initiate effective steps to prevent this public nuisance and not to
evade its responsibility on the ground of shortage of municipal staff or paucity of funds. The Court
warned that any negligence in preventing this public nuisance should be viewed seriously and the
defaulting officals be punished for their lapse of duties. According to Dr. Winfield, the deepest doctrinal
roots of modern environmental lies in the common law principle of nuisance. Such nuisance may be
through escape of polluted water, fumes, smoke, foul gas, smell, noise, heat vibrations, disease-germs.
electricity etc. In V. Laxmipathy v. State of Karnataka,2 the High Court held that water, air, land and
noise were hazardous kinds of nuisance, which could not be permitted as they directly affected the
guilty of environment which none could be allowed to pollute. In M. C. Mehta v. Kamal Nath the
Supreme Court observed that environmental pollution is a civil wrong against the community as a whole
giving rise to cause of public nuisance. In this case, the untreated effluents discharged from the
defendant's motel were polluting the river Beas. It has caused serious damage to river bed, flora-fauna
and fishery in the area. The respondent (the owner of the motel) was directed to stop further
construction of the motel and pay Rs. ten lakh as cost to restore normal environment and ecology of the
region. In State of Madhya Pradesh v. Kedia Leather & Liquor Ltd., the respondent's factory was
discharging toxic and untreated effluents and foul air which was a cause of nuisance for the residents of
the locality. The Magistrate, therefore, ordered under Section 133 Cr. P.C. the respondents to prevent
environmental pollution, The Court held that order of the Magistrate to prevent the cause of nuisance
under Section 133 Cr. P.C. is not only preventive but also curative and penal in nature. Similarly in Suhel
Khan Khudayar Khan v. State of Maharashtra, the Supreme Court affirmed the order of the Magistrate
issued under Section 133 Cr. P.C. to remove the public nuisance comfort caused due to noxious
trade/business which was injurious to health and physical comfort of the community. Public Nuisance
when actionable by private person A private person may sue the defendant for damages in respect of a
public nuisance provided the following conditions are fulfilled:- (1) The injury caused to him must be
substantial and not fleeting or evanscent. For example, in Ram Das & Sons v. Bhuvneshwar Prasad Singh,
the defendant left deep trench on the street without covering it or placing danger lights or indications
on either side. The plaintiff who was riding on his cycle fell into the trench and was severely injured. The
Court allowed him to recover for public nuisance as the damages were substantial and a direct result of
the defendant's act. (2) The injury must be direct and not merely consequential. The injury is deemed
direct when it could be foreseen by the defendant to be likely to cause substantial damage to the
plaintiff besides the inconvenience being caused to the public in general thereby (3) The plaintiff must
show that he suffered special damage. Where the defendant causes to obstruct a highway, it is not
enough for the plaintiff to show that he suffered inconvenience in the use of the highway like other
persons but must show any special damage caused to him on account of that obstruction. For instance,
in the case of Municipal Board Lucknow v. Ram Dei, the Court reiterated that where the defendant dug a
trench across a highway, the plaintiff cannot sue him for public nuisance because the trench had
prevented him from passing along the highway, for that is an inconvenience caused equally to all those
who use the highway. It is only when he happens to fall into the trench and breaks his leg or suffers an
injury or the vehicle he was driving is damaged, he shall be entitled to sue the defendant for public
nuisance. Remedies for Public Nuisance The remedies available to a person who is aggrieved by public
nuisance committed by defendant are as follows:- (1) Instituting criminal proceedings against the
wrongdoer under Section 278 of the Indian Penal Code. The remedies prescribed for public nuisance are
contained in Sections 133 to 143 of the Code of Criminal Procedure, 1973; or (2) A civil suit may be filed
by the plaintiff claiming special damage or a suit for declaration and injunction may also be instituted by
(a) Advocate General, or (b) with the leave of the Court, by two or more persons even though no special
damage is caused to the plaintiff by reason of public nuisance. Besides, the local bodies and Municipal
Corporation etc. also have a legal right to remove the cause of public nuisance and if they deny or fail to
exercise this authority without any valid reason, a writ can be filed against them under Article 226 of the
Constitution of India. 3. Private Nusiance Private nuisance may be described as unlawful interference
with a person's use or enjoyment of land, or some right over, or in connection with it. It may be in three
forms namely, (1) unlawful interference or encroachment on a neighbour's land. (2) interference with
the enjoyment of land; and (3) direct material damage. Infringement of an easement right or servitude,
such as the obstruction of a right of way or blocking of an acquired right to light or air may also give rise
to a private nuisance. For example, the right of a riparian owner to take a reasonable quantity of water
for agricultural or domestic purposes, if infringed may result in an action for private nuisance. The High
Court of Rajasthan in Bhawarlal v. Dhanraj defined private nuisance as an unlawful interference in one's
enjoyment of land or some right over or in connection with it, which causes some material damage or
adversely affects the health or convenience of a person. Essentials of Private Nuisance The essentials or
ingredients of a private nuisance, which the plaintiff has to prove against the defendant are as follows:
(1) Unreasonable interference; (2) Such interference should relate to peaceful use or enjoyment of to
land; and (3) Damage should have been caused. 1. Unreasonable Interference In order to succeed in an
action for private nuisance against the defendant the plaintiff has to show that there was unreasonable
interference to his land which caused him damage or discomfort. It, therefore, follows that if the
interference is not unreasonable, no action can lie for nuisance. As rightly observed by Lord Wright in
Sadleigh Donfiled v. O'Callagham, "a balance has to be maintained between the right of the occupier to
do what he likes with his own land, and the right of his neighbour not to be interfered with". Whether
the interference is justified or not, will however, depend on conditions of different localities and
societies. An unreasonable interference cannot be justified on the ground that it was for public good or
all possible care had been taken to avoid the nuisance, Sr. Helan's Smelting Co. v. Tipping? was a
landmark case on nuisance involving impact of industrial pollution on local inhabitants. In this case, the
fumes emitted from the defendent's compay caused damage to the plaintiff's trees and shrubs. Such
damage being an injury (damage) to property, it was held that the defendents were liable for private
nuisance. The Court held that the possessor or occupier of land is entitled to an injunction and he is also
entitled to compensation for the diminution in the utility of his land. In Ramlal v. Mustafabad Oil and
Cotton Ginning Factory, the High Court of Punjab held that noise pollution is considered as a nuisance of
the high degree, it shall be no defence to contend that it was as a result of a business or from lawful
amusement or religious worship Prohibition on loud noise which is a public nuisance dose not
contravene the freedom of carrying out trade and business under Article 19 (1) (g) of the Constitution. In
Re Noise Pollution V the Supreme Court reiterated that "noise is not just an ordinary nuisance, it causes
a real and present danger to people's health. It also results in psychological stress and causes
annoyance." Now a days noise has become a major pollutant of environment and has serious effect on
health of the people. In Mulana Mufti Syed Mohd. Noor Rehman Barkati v. State of West Bengal, the
High Court of Calcutta observed that excessive noise is certainly cause of nuisance and a threat to
environmental pollution. The right to sleep peacefully at night and right to leisure case implicit in Article
19 (1) (a) read with Article 21 of the Constitution. In the case of President, Guruvayur Devasthan
Management Committee v. Superintendent of Police, Trichur, plaintiff's, the residents of the Devasthan
locality complained against the Devasthan that the daily morning prayer, devotional songs discourses
etc. relayed on the loud speaker were causing noise pollution in the surrounding area, therefore, the
defendants should be restrained from causing this nuisance. The Court held that the sound from the
loudspeaker was confined to the premises of the Devasthan and it was not loud enough to cause noise
pollution to the people residing in the nearby vicinity. Moreover, the use of loud speaker was made in
relay information about the missing persons or property, money, jewellery lost et which was in the
public interest Under the circumstances, the noise from Devasthan could not be said to be unreasonable
so as to be an actionable nuisance In G.M.M. Pandler Lid v. Tata AIG Life Insurance Co Ltd. & others, the
chiller plant of the defendants caused noise and vibrations in the office premises of the locurance
Company. The plaintiff (TATA LIC) therefore, filed a suit for injunction on grounds of nuisance. The Court
after referring to a number of English and Indian cines, held that reasonable noise of vibration would not
constitute an actionable tort of nuisam In Church of Goa (Full Gospel) v. K KR. Majestic Colony Welfare
Association the respondents filed petition against the Church for causing intolerable noise pollution due
to late night musical activities of the Church on the ground that it was a cause of nuisance and great
discomfort for the residents of the colony, The Court therefore restramed the Church as it was a cause
of nuisance. In appeal against the restraining order the Supreme Court observed: "Undoubtedly no
religion prescribes that prayers should be performed by disturbing the peace of others nor does it
preach that they should be through voice amplifiers or beating of drums. In a civilised society, in the
name of religion, activities which disturb old and infirm persons, students or children having their sleep
in early hours or during day time or other persons carrying on their activities cannot be permitted. It
should not be forgotten that young hatges in the neighbourhood are also entitled to enjoy their natural
right of sleeping in a peaceful atmosphere.....the old and infirm, sick people affected with psychic
disturbances as well as children are entitled to enjoy reasonable quietness during leisure hours without
there being nuisance of noise pollution." The Supreme Court dismissed the appeal filed by the Church
and held that prohibition imposed musical activities, under Rule 5 of the Noise Pollution Control Rules,
2000 was justified for maintaining ambient air quality standard with respect to noise pollution.
Abnormal Sensitivity of the Plaintiff In Heath v. Mayor of Brighton, the Court observed that an act
otherwise reasonable. does not become unreasonable to be actionable as a nuisance if the damage
even though substantial, is caused due to sensitiveness of the plaintiff. In this case the Court refused to
grant injunction to the trustees of the Brighton Church to restrain a "buzzing noise" from the
defendants' power station located near it. The noise did not cause annoyance. discomfort to people in
general except the trustees nor was it loud enough to distract the attention of ordinary persons
attending the church. The case of Robinson v. Kilveri, illustrates that a person who carries on an
exceptionally sensitive or delicate trade cannot complain on the ground that he is injured (damaged) by
his neighbour's doing something lawful in his property. In this case, the defendant manufactured paper
boxes and warehoused them in the house, the upper part of which was in the occupation of the plaintiff.
The defendant's business required hot air for drying the paper boxes. This raised the temperature at the
upper floor which was occupied by the plaintiff and caused damage to his warehoused brown paper and
diminished its value. Normally it was not hot-enough to cause damage to workmen or the paper stock of
the plaintiff. The Court, therefore, dismissed the suit and held that it was the exceptional delicate or
sensitive nature of the trade which caused damage to plaintiff's goods. i.e... brown-paper, hence it was
not serious enough to establish a case of nuisance. The Court opined that a person cannot restrict the
freedom of action of his neighbour by putting his property to a very sensitive use. Nuisance is not
actionable if it is occasional A mere isolated happening or an occasional nuisance is not actionable. For
example, the manure heaps which were ordinarily not offensive were occasionally rendered offensive
due to delay in their removal by the concerned authorities or by the presence of dead cats and dogs.
Similarly, a negligent act that caused physical damage to electric cable was not held to be a sufficient
ground for an action for private nuisance.2 In Stone v. Bolton, when the plaintiff lady was standing on a
highway in front of her house, a cricket ball coming from the defendant's ground fell on her head and
she sustained injuries. She sued the defendants for nuisance and damages. She could not succeed in her
action for nuisance. Dismissing her case, Oliver, J., observed "an isolated act of hitting a cricket ball on to
a road cannot amount to nuisance... The very word nuisance connotes some continuity...a nuisance
must be a state of affairs, however, temporary, and not merely an isolated happening". The Court noted
that the ball reaching the highway only very occasionally is an evidence to show that no dangerous state
of affairs exists in the adjoining cricket ground. The plaintiff's claim for damages on the ground of
defendant's negligence was also dismissed by the Court on the ground that the injury caused to the
plaintiff was incidental and unforeseen. In Dollman v. Hillman Ltd.. the plaintiff while walking on the
pavement slipped on a piece of meat lying there outside the butcher's shop. He sued the defendant for
nuisance. The defendant was held not liable as an isolated event for which the defendant would have
perhaps been held liable for negligence but not for nuisance. Malice In an action for nuisance, malice of
the defendant towards the plaintiff though not an essential element of the tort, has to be taken into
consideration by the Court while deciding the case. Thus, in Christie v. Davey, the defendant who, was
fed up and irritated by the continuous sound coming from the music class held by the plaintiff living in
the adjacent house, maliciously interrupted his music class by beating of drums, trays etc. against the
common wall and by whistling and shrieking. The Court granted injunction because the defendant's act
was malicious and deliberate to cause annoyance to the laintiff. North, J., said. "the noises which were
made in the defendant's house were not a legitimate use of the defendant's house, they were for the
purpose of vexing and annoying the plaintiff. But two years later, the House of Lords in Bradford
Corporation v. Pickles asserted that a bad motive or malice cannot make wrongful an act which is
otherwise legal. Lord Mac Naughton in this case observed, "it is the act and not the motive for the act,
that must be regarded". If the act, apart from notice, gives rise merely to damage without legal injury,
the motive, however, reprehensible it may be, will not supply that element. Thus the House of Lords
affirmed the principle laid down in Bradford case in its subsequent decision in Allen v. Flood, decided in
1898. In yet another case, f.e., Hollywood Silver Fox Farm Lid. v. Emmett, the plaintiff had the business
of breeding silver foxes on their land. The vixen of these foxes are extremely nervous during their
breeding season and if they are disturbed by loud noises, they cannot breed for that seasons and tend
to kill their own young ones. The plaintiff put a name board at the entrance of his farm with the farm's
name on it and the defendant had an objection to the erection of the board as it was allegedly
obstructing his proposed work of building construction. He therefore, requested the plaintiff to remove
the board to which the latter paid no heed. Annoyed with this, the defendant asked his son to fire he
gun from his own land as near as possible to the breeding pens in the plaintiff's land to frighten the
silver foxes and stop their breeding so as to cause damage to the plaintiff's business. The Court held that
even though the gun firing was done by the defendant from his own land to which he was entitled to,
but the plaintiff was entitled to an injunction and for damages as the law expects a person to make use
of his own land in a way that it does not interfere with the right of enjoyment of land of other persons.
Similarly, a person who persistently by way of retaliation repeatedly makes telephone-calls to the
plaintiff in order to vex, harrass or disturb him, that person will be liable for nuisance.4 2. Interference
with the Use and Enjoyment of Land Interference with the use and enjoyment of land may be in two
forms, namely (1) by causing damage to property itself, or (2) injury to comfort or health of the
occupants of certain property. Any unauthorised interference with the property of another person
through some object whether tangible or intangible, which causes damage to the property, will be an
actionable nuisance. Thus to allow the escape of roots of a tree to the neighbour's land amounts to a
nuisance. So also, the escape of water, gas, smoke, smell, fumes etc. from one's premises to another's
land will be an actionable tort of private nuisance. In Sadashiv Chetty v. Rangappa Raju the defendant's
oil mill emitted obnoxious smell and caused unbearable noise which interfered with the near-by
resident's peaceful enjoyment of their land, the defendant was therefore, held liable for causing
nuisance and directed to prevent the cause of nuisance by adequate measures It may be stated that the
court may grant injunction to prevent a nuisance which may be possible in future in certain
circumstances. Thus the Supreme Court brought out the distinction between the existing and the future
nuisance in Kuldeep Singh v. Subhash Chandra Jain and held that the measure and quantum of damages
in an existing nuisance may be easily assessed but it is not so in case of a nuisance which is likely to arise
in future and, therefore, grant of injunction to prevent such possible nuisance is perhaps the only
remedy available to the persons who are likely to suffer from such nuisance. However, this remedy need
not be extended to a nuisance, the possibility of which is apprehended on baseless grounds. The
defendants plan to collect and stack bones in a residential locality, opening of a explosives
manufacturing factory or digging a trench near the children's school are some of the examples which
may be a cause for nuisance in future and therefore, they can be restrained by grant of an injunction.
Interference with Incorporeal Property Every person has a right of support from neighbour's land and
therefore removal of such support lateral or from beneath will be an act of nuisance. In case of buildings
right of support may be acquired by grant or prescription. In Coles v. Home of Colonial Stores Ltd., the
sunlight coming into the plaintiff's room on the ground floor was obstructed due to construction of
building by the defendant adjacent to that room. The plaintiff therefore, sued the defendant alleging
that obstruction to sun light had adversely affected his office work and he had to keep his electric lights
on throughout the day. The Court refused to grant injunction and held that substantial deprivation of
light could not be said to be a sufficient ground for nuisance. Similarly, in Webb v. Bird, the construction
of building by the defendant obstructed the working of the plaintiff's wind-mill due to blocking of flow of
air passage. Held, the plaintiff had no prescriptive right to prevent the defendant from the construction
of the building, therefore, an injunction could not be granted for restraining him from doing so and the
case was dismissed. However, where due to the defendant's construction of building, the ventilator of
plaintiff which he was using as a prescriptive right for the past 40 years is blocked, an injunction may be
granted to prevent such construction.3 In India, the right to light, water and air has been protected by
Section 15 of the Easements Act. 1882 and Section 25 of the Limitation Act, 1963. According to Section
25 of the Limitation Act, a person who is peacefully enjoying the right of light and air on his land
continuously for twenty years without interruption, acquires a prescriptive right. For the compilation of
period of 20 years, a period of two years immediately before the institution of the suit shall not be taken
into consideration, L.e., excluded. The remedy of damages is available to a person whose prescriptive
right is violated under Section 33 of the Easement Act, 1882. In Polsue & Alfieri Ltd. v. Rushmere, the
plaintiff who was living in a busy noisy locality sued the defendant for installing a printing machinery
adjacent to his house as it was a cause of discomfort to him and the members of his family had to keep
awake at night due to noise coming from the printing press. Considering it as an additional noise to
already existing noise in that locality, the Court granted injunction against the defendants. The status of
the person may also be material in such cases, observed the Court. Injury to health or comfort In Kinkri
Devi v. State of Himachal Pradesh, indiscriminate blasting and mining operation for extracting lime-stone
in Shivalik Hills in Sirmaur district of Himachal Pradesh had created a serious health and environmental
hazard which was a nuisance for the inhabitants of that vulnerable area. The Court order closure of
quarrying and mining in the area and directed the Government to regulate mining activities in that zone
to prevent the nuisance. In Bichhari case, five factories were manufacturing hyaluronic acid (H-acid)
which was highly toxic, in Bichhari village of Udaipur district in Rajasthan. These units were discharging
highly toxic untreated effluents and sludge having high gypsum and iron contents, which were not only
damaging to villager's health but also denuding the fertility of the soil and polluting the underground
water. The Court held it to be a serious nuisance causing health hazards and ordered the closure of the
factories to abate the cause of nuisance. The Court also imposed costs on these units for restoration of
ecology of the arca. Any unreasonable interference with health and comfort or enjoyment of property
through an offensive trade is actionable as nuisance. Thus in Golstaun v. Doonia Lal Seal defendant, the
owner of a shellac manufacturing unit drained out a highly poisonous and harmful liquid in the
municipal drain which caused blocking of the drain resulting in discomfort and inconvenience to the
plaintiff. The Court held the defendant liable for nuisance. Similarly, in Fay v. Prentice, a cornice of the
defendant's house was projecting over the plaintiff's garden. It was held that the mere fact of cornice
projection was sufficient to raise a presumption of rain-water falling into the garden causing it damage.
Therefore, the same need not be proved in an action for nuisance. The defendant was, therefore, held
liable. In Jawand Singh v. Mohamaddin,3 in an action for nuisance, the Court by an injunction order
restrained the Hindu devotee of the temple not to beat drums or blow 'Shankh" at the time when 'Ajan'
is being held in the Muslim mosque which was located near the Hindu temple. In Satya Narayan Rao v.
Narsinha Rao, on one side of the plaintiff's residence there was open space from where he was having
uninterrupted access of air and light for many generations. The municipality decided to construct septic
latrines for public use on that open land to which the plaintiff objected on the ground that it would be
an invasion on his prescriptive right of air and light which he has been enjoying for many generations
The Court accepted the plaintiff's claim and issued injunction restraining the municipality from
constructing septic tank on that open land which was going to be a nuisance for the plaintiff. Highway
Nuisance In England, the maintenance of highway being the responsibility of the Government, any
obstruction causing nuisance to road users rendered the Government liable under the Highways
(Miscellaneous Provisions) Act, 1980. However, in India there is no such law in existence, In Ware v.
Garston Haulage Co. Ltd., the defendant left his lorry with a trailer attached to it on the side of the road.
There being no red (danger) light in the rear of the trailor, the plaintiff who was riding on his motor cycle
dashed against it and got severely injured and his byke damaged. He therefore, sued the defendant for
nuisance. The Court held the defendant liable for leaving the lorry with trailor in darkness on highway
without red light to indicate the danger. Davies, J., in Parish v. Judd, observed that in an action for
highway nuisance it is not enough to prove that the defendant left the vehicle in mid-road without the
danger signal or indicator, but has also to show that such a vehicle was not only an obstruction to the
highway users but also a positive danger for them. Where the defendant has exhibited red light to
indicate presence of a vehicle and the light has gone off for some reason, the defendant can be held
liable only when it is shown that it had gone off due to some negligent act of the defendant. In the
instant case, the defendant's van had developed some defect, hence it was being pulled by some other
vehicle. Though the rear red light of the effective van was not working but the persons coming from the
rear side could clearly see the presence of the van because of three reflectors affixed in its rear. Besides,
when the approaching car hit the van from behind, the van was standing about 6 feet away from the
lamp post at the side of the road. Under the circumstances the defendant was held not liable as he had
taken all possible care to ensure that his van does not cause obstruction to road traffic in any way.
Where the defendants are engaged in picketing and slogan-shouting in front of the plaintiff's premises
and interrupting peaceful enjoyment of his land, they will he held liable for nuisance.! In Wilkes v.
Hungerford Market Co.,2 the defendant obstructed the entrance of the plaintiff's Book Shop thereby
causing the customers to take a long route to come to the shop. Held, the inconvenience an discomfort
caused to the plaintiff and his customers was a nuisance for which the defendant was held liable. In
Newsome v. Durton Urban District Council, the dependents dug a drain across the road and then filled it
up with earth. But three years later due to washing away of earth there was a huge depression on the
road. A cyclist while passing from the road fell into the trench and injured. He sued the highway
authorities for nuisance and negligence. The highway authorities were held liable for failure to discover
and remedy the sources of danger urising from repairs which they had executed three years before.
Nuisance due to Projections on Highways It was been well recognised that people have the right merely
to pass or repass over the highway and so long as that right is not interfered with they have no right to
complain of what was in the air above or on the earth beneath. It therefore, follows that all projections
on the highway are not necessarily nuisance unless some substantial damage is caused by them. For
instance, in Noble v. Harrison a branch of beech tree growing on the defendant's premises was
overhanging a highway at the height of over 30 feet above the ground. On a fine weather day the
branch suddenly broke and fell upon the plaintiff's vehicle which was passing along the highway. The
plaintiff sued the defendant for damage to the vehicle and personal injuries to him. The Court held the
defendant not liable and reiterated that a branch of tree overhanging a highway is not nuisance by itself
unless a danger from it could be foreseen by the defendunt and there would have been negligence on
his part to avert the danger. In Tarry v. Ashton the plaintiff a lady while walking through the street
adjoining the defendant's house was seriously injured by falling of a large lamp weighing about 40 lbs,
which had been suspended from the front of the house and projected several feet across the pavement.
The falling of the lamp was due to the decayed condition of the lamp iron to which the lamp was
fastened. The lamp was repaired about three months prior to this accident but the contractors had not
done the repair work properly Lash and Quain, JJ., in this case held the defendant liable on the ground
that he had a duty to keep the lamp in proper repair so that it is not dangerous to the public and he
cannot he allowed to escape liability saying that he had employed a proper person to keep the lamp in
proper repair. In Caminer v. Northern & London Investment Trust Lad, the defendants were lease-
holders of land on which there was an elm tree which was about 130 years old. One day the tree
suddenly fell on the adjoining highway thereby injuring the plaintiff and his car while he was passing
from there. Some other persons on the highway also suffered injuries due to falling of the tree. The
reason for the falling of the tree was that it was badly affected by a disease known as 'elm but rot.
However, there were no symptoms of the disease of the root above the ground. The plaintiffs sued the
defendants for negligence and nuisance, but the Court held them liable for neither because the defect
(disease) in the tree could not be known nor an assessment of the dangerousness of it could be made by
ordinary deligence. In Wringe v. Cohen, the Court of Appeal held that if owing to want of repair,
premises on highway become dangerous and a cause for nuisance, and the passer-by or the adjoining
owner suffers damage by their collapse, the owner will be answerable whether he knew or ought to
have known of the danger, on the principle of strict liability rule laid down in Rylands v. Fletcher. In this
case, the wall of the defendant's building adjoining the plaintiff's shop collapsed and the debris fell on
the plaintiff's shop. The defendant was held liable for nuisance and also for negligence for not keeping
the wall in proper repairs. In British Road Services Lad. v. Slater, the defendants were the owners and
occupiers of a farm adjoining the public-road. An oak tree of considerable age was on the farm with
branches hanging towards the road. The tree had grown before the defendants came to own and
occupy the farm. Neither the defendants nor the highway authorities nor plaintiff's driver who
frequently passed along the road considered the hanging branch as a nuisance and a hazard. When the
plaintiff's lorry carrying high load of packing cases was being driven on the road at night, the driver
pulled in aside to let other lorry coming from opposite side to pass, thereby load striking the branches of
the oak tree and one of the packing fell on the road. The lorry coming from opposite direction also
sustained damages while trying to avoid the packing case lying on the road. The plaintiff sued the
defendants for nuisance, Disallowing the plaintiff's claim, the Court held that although overhanging
branch was a nuisances but the defendants could not be presumed to know of this nuisance and foresee
any harmful consequences. In Nagmani V. Madras Corporation, on May 11, 1953 at about 8 P.M. one
Ramachandra Naidu was returning from office to his home when the ventilator iron post of the
Corporation erected on the pavement fell upon him resulting in head injuries and consequent death on
the same night. The column on which iron-post was erected was made of steel and only 30 years old as
against its normal life of 50 years. It was securely fixed on a cement pavement in an iron socket sunk
three feet deep and the entire thing was inspected only a month prior to this accident when it was
found in perfectly sound condition. There was other such coloumns fixed in different parts of the city
and this was the first accident. The Court held that there was no negligence on the part of Corporation
nor was there any apparent reason for the fall of the coloumn, therefore, the defendants were not liable
for either. The Court accepted the probability of the column having been left insecure and some
miscreants might have attempted to steal it away or it might have bzen dashed by some vehicle. In
Sushila v. Chennai Corporation, there were two big trees on the Corporation's land in front of the
plaintiff's house which were causing obstruction in the flow of sewage through the drains. Since
branches of these trees were also overhanging the plaintiff's premises, he apprehended danger from
them as this was causing them great inconvenience and discomfort. The plaintiff therefore, sought
permission from the Corporation to cut off these trees but the corporation neither gave the permission
nor itself take any steps to cut these trees, therefore, the plaintiff decided to cut off the tree at his own
and simultaneously sued the corporation for nuisance. The Court upheld the cause of plaintiff and
directed the Corporation to remove those trees so as to abate the cause of nuisance. 3. Damage Private
nuisance not being actionable per se, the plaintiff is required to prove the damages caused to him due to
defendant's act of nuisance. However, where nuisance involves the violation of a right to casement, the
damage need not be proved because the prayer is usually for an injunction. For instance, in Nicholls v.
Ely Beet Sugar Factory Ltd, large quantity of refuge and effluents were alleged to be discharged from the
defendant's sugar factory into the river in which the plaintiff had owned two exclusive fisheries. The
Court of Appeal held that there was no need for the plaintiff to prove pecuniary loss, the damages being
actionable per se. It is, however, a different matter that be lost the case because he failed to prove that
the damage caused to him was because of defendant's act Further, where the nature of nuisance is such
that the strict liability rule as laid down in Ryland v. Fletcher, is applicable, the plaintiff need not prove
any damage and the defendant will be held liable. Normally, the assessment of damage in nuisance
cases is done on the basis of depreciation in value of the plaintiff's properly caused by the defendants
act. In case the plaintiff has sustained any special damages, he shall have to prove it. Where plaintiff's
loss of tenants on account of defendant's nuisance is only one of the several causes, then he may be
awarded the amount equivalent to loss of monthly rent? The High Court of Nagpur in Khir Singh v.
Brijlal, held that the claimant becomes entitled to special damages only when he successfully proves
that the special damage suffered by him is in addition to the general damage suffered by other persons
who are also affected by the defendant's nuisance. For example, placing an obstruction across the road
or digging a trench in it is a cause of discomfort and inconvenience to all those who pass over that road,
but if the plaintiff claims that due to that obstruction he slipped over the stones and bricks scattered
there and fell down and sustained injuries, then in that case he may be awarded special damages.
Where the nuisance is apprehended or threatened, no damages may be claimed as no damage has been
sustained as yet. But when the plaintiff asks for an injunction, the Court has a discretion to grant
damages instead of injunction, which will then be inclusive of all the future losses which the plaintiff is
likely to incur due to apprehended or threatened nuisance Defences Against Nuisance Generally, there
are two main defences available to defendant in an action for nuisance against him. Firstly, he may show
that right to continue the alleged nuisance has been acquired by prescription as it has been peaceably
and openly enjoyed as of right continuously for more than twenty years. Secondly, it will be a valid
defence to show that the said nuisance is under the terms of a grant. These defences are besides the
general defences which are available to a defendant in law of torts. But the following have not been
accepted as valid defences in an action for nuisance and therefore, the defendant cannot escape liability
on the ground of these defences (1) The plaintiff coming to the nuisance was one time held to be a
defence but it has now been discarded as a ralic of the old rule of procedure. In other words, the
defendant cannot raise the plea that having knowledge about the existence of nuisance, the plaintiff
chose to come to it and therefore, defendant is not liable. For example, in Bliss v. Hall the defendant's
tallow chandlery was in operation for many years and the diverse noises, noxious and offensive vapours,
furnes, smell and stinches coming out from it were a cause of great uncomfort and annoyance for the
residents of the locality. Plaintiff, one of the resident of that locality sued the defendant for nuisance.
The defendant pleaded that the plaintiff himself had come near the nuisance hence he cannot complain
of it. He argued that the tallow chondlery was operating there three years before the plaintiff took the
house near it. Rejecting the defendant's plea, Court held him liable. The Court, however, made it clear
that a person who comes to live in an industrial town or city from a country village should not expect the
same pollution-free atmosphere as he was enjoying in a secluded village. (2) It is no defence for the
defendant to say that his act of nuisance was for public good: If a person is engaged in a trade or
business which is a cause of annoyance, he can not escape liability on the ground that the said trade was
in the interest of public in general. In Adams v. Ursell, the defendant opened a shop for selling fried
fishes in the residential locality which was a cause of nuisance for the residents doe to offensive smell
coming from the shop. They therefore, moved the Court for closure of the shop or its shifting elsewhere.
The defendant pleaded public interest in his defence and argued that injunction would cause great
hardship to the poor customers. Rejecting his plea the Court granted injunction to the residents. In R v.
Train, in an action for nuisance against the defendants for laying dangerous tram lines in the mid of the
street, their defence that the running of trams was meant for the convenience of the public in general
was not accepted by the Court and an injunction was granted against them. In Kennaway v. Thompson,
on a complaint of the plaintiff residing near the boat racing club regarding nuisance due to noise, the
Court restrained the Motor Boat Club from organising boat-racing. The defendant raised the plea that
boating race was for the entertainment of public in general and in fact it should be granted due
protection, but the Court rejected the plea and allowed the Boat Club to organise boat race only once in
a year that too only for three days in a fine weather. (3) Contribution of other's act to aggravate
nuisance is no defence to exonerate the defendant from his liability for nuisance. Salmond holds that
defendant cannot be allowed to say in his defence that besides his act of nuisance, there was also
contribution of others to aggravate the nuisance. Illustrating this he observed that if 20 industrial
factories pollute the environment by emitting foul smell, fumes and smoke and cause nuisance. then the
contribution of each individual industry may be negligible but all taken together. assume a serious form.
In such a situation all the industrial units will be held liable and the quantum of damages shall be
recovered from them proportionately but none of them will be allowed to escape liability. (4) It is no
defence for to defendant to argue that the place from where the nuisance 353 emanates is the only
suitable place for carrying out the activity complained of and there could be no other place to carry on
that activity, operation or business, as the case may be. (5) Similarly, the defendant will not be allowed
to say that he exercised due care to prevent the nuisance and that he was merely making a reasonable
use of his property. The use of property cannot be said to be reasonable if it causes interference in the
other's enjoyment of land or property. Remedies for Private Nuisance The various remedies available to
a plaintiff against the defendant in an action for nuisance are: (1) Extra-judicial remedy of abatement of
nuisance, (2) Damages, and (3) Injunction. The Supreme Court has elaborately explained the remedies
available to a plaintiff in the tort of private nuisance in the case of Kuldeep Singh v. Subhash Chandra
Jain. 1. Abatement of Nuisance.-It is an extra-judicial remedy which a person seeks by self-help without
recourse to law-suit in a Court. For instance, where the branches of tree from the land of the neighbour
are stretching on a persons' land, he can cut them off or remove them himself by giving a reasonable
notice to the neighbour and without using unreasonable force. But this act should be done peacefully
without causing any risk of life or property of the neighbour. Also the force used should not be more
than what is necessary in the circumstances of the case.2 2. Damages. The injury or harm caused due to
nuisance may be redressed by claim of damages against the defendant who caused nuisance. The
quantum of damages is generally equivalent to actual harm or loss caused to the plaintiff.3 3.
Injunction.-Where the nuisance is of a continuing nature for which the remedy of damages may not be
appropriate, the plaintiff can move the court for grant of an order of injunction against the defendant.
Injunction is an order issued by the Court against the defendant directing him to remove or undo the
cause of nuisance. However, where the remedy of damages is reasonable and adequate, the Court
generally refrain from granting injunction. Where nuisance is caused by noise from running heavy
machine, the Court generally grants permanent injunction restraining the defendant to abate the cause
of noise or to shift the machine to some other is dated place. Continuing Nuisance Where the nuisance
is of a continuing nature, that is, the damage caused by it continues unabated, the cause of action would
be deemed to have accrued every day for the purpose of limitation until it is removed. Thus, in Galstaun.
Doonialal Seal, the defendant, the owner of a shellac factory discharged into the municipal drain liquid
effluents of an offensive character which interfere with the plaintiff's ordinary comfort. Held, it was a
continuing nuisance for which remedy was an injunction to retain the defendant from discharging the
waste effluents into the municipal drain. The normal remedy for continuing nuisance is injunction which
should not be highly denied and damages granted lieu thereof. The principles in this regard are laid
down by the Court of Appeal in Shelfer v. City of London Electric Light Company, which are as follows (1)
The plaintiff is prima facie entitled to an injunction against a continuing nuisance, which invades his legal
right. (2) Payment of damages by the defendant causing continuing nuisance cannot purchase claimant's
legal right (3) Though the Court has jurisdiction to award damages instead of an injunction in cases of
continuing nuisance, but it does not mean that Court should be allowed to legalise wrongful act of the
defendant, who is able and willing to pay damages. (4) In case of continuing nuisance injunction' should
be rule and award of damages an exception to this rule. An injunction to prevent an apprehended or
future nuisance will generally not be granted unless the threat is immediate and irreparable damage is
likely to result in from such nuisance. In the case of LT.C. Limited v Chowringhee Residency (Pvt.) Ltd. the
dominant owner was enjoying use of ancient light uninterruptedly for more than 20 years. The servient
owner acquired permission from the Municipal Authority for construction of a building. Such
construction was going to be detrimental to dominant owner's exercise of easementary right to light
partially on the west side. The Court refused to grant injunction to the plaintiff (dominant owner)
holding that dimunition of light not being substantial, damages would be adequate remedy and as such,
dominant owner was held entitled to damages. The Court in this case noted that the factors which
should be considered by the Judge in coming to a decision whether to grant an injunction or not in
categories of nuisance involving easement infringement cases are never closed and they vary with
circumstances, from case to case. In the instant cases, the damage caused to the defendant by grant of
the injunction was going to be oppressive and much more detrimental to the defendant than the
damage to the plaintiff by non-grant of injunction." Considering this fact the Court declined to grant
injunction and directed the plaintiff that he could file a suit for damages to which he was entitled to in
the present case. Distinction between Public & Private Nuisance The main points of distinction between
public and private nuisance are as follows:- 1. A public nuisance affects the public at large or some
considerable portion of it while a private nuisance affects only one person or a determinate body of
persons. Thus a public nuisance involves violation of public right and safety or convenience of the
people in general. But a private nuisance is a violation of a person's personal right relating to his land or
enjoyment thereof. 2. Public nuisance is both an offence as well as a tort, ke.. civil wrong, but private
nuisance is necessarily a civil wrong and not an offence. 3. A private individual cannot maintain an action
in respect of a public nuisance in his own name except under certain conditions mentioned earlier. A
private nuisance, on the other hand, is maintainable in a person's own name. 4. A public nuisance
cannot legitamised by prescription for however long time it might have been in existence, but unlike
this, a private nuisance can be legalised or acquired by prescription. 5. Abatement of a private nuisance
may be resorted to as an extra-judicial remedy by the aggrieved person but no individual person can
abate a public nuisance. 6. The remedy against a public wrong is generally a prayer for grant of
injunction or a declaration and damages can be claimed only when the claimant (plaintiff) has sustained
special damage. But an action for damages lies in case of a private nuisance. It may, however be stated
that there may be a case when a public and a private nuisance may coincide. For example, industrial
pollution causing intolerable noise, emission of noxious gas, fumes, flames, smoke etc. may cause
nuisance to residents of the particular locality as well as the general public. So also is the case when
nuisance is caused by obstruction of a highway. It is actionable as a public nuisance, but if any individual
sustains special damage such as personal injury or damage to his vehicle, goods or property etc., he may
sue for an action in private nuisance and claim damages. Distinction Between Nuisance & Negligence
Nuisance is generally a consequence of defendant's negligent act, therefore more often than not, he is
sued by the plaintiff for both, nuisance and negligence. Thus it will be seen that though in most cases
nuisance and negligence coincide, but they differ from each other in certain aspects. 1. In an action
against the defendant for negligence the plaintiff has to show that the defendant owed a duty to him
and he committed breach of such duty, but in case of a nuisance the plaintiff is only to prove the
wrongful act of the defendant which caused him nuisance. 2. In case of negligence as a tort, the main
question for consideration before the Court is to find out whether the defendant exercised due diligence
in doing the act? That is, the defendant can escape liability in an action for negligence if he proves that
he was careful, but in nuisance only defendant's wrongful act which caused nuisance is to be proved. 3.
Contributory negligence is not a defence in tort of negligence, but where the defendant proves the
contributory negligence of the plaintiff along with his own negligence, his liability for damages is
proportionately reduced by the application of the doctrine of apportionment. But cont, ibutory
negligence has no significance so far the tort of nuisance is concerned. 4. There are certain cases which
are distinctly either negligence or nuisance. For example, a careless surgery will always be a negligent
act and not a nuisance Similarly, violation or obstruction of an easement right is distinctly a nuisance and
not negligence.