PROJECT TOPIC: NUISANCE

CHANAKYA NATIONAL LAW UNIVERSITY

This final draft is submitted for the fulfilment of
project in Law of Torts.

Submitted to:

Assistant Professor of Law

1
 TABLE OF CONTENTS
Contents
ACKNOWLEDGEMENT ........... Error! Bookmark not
defined.
INTRODUCTION .......Error! Bookmark not defined.
AIM AND OBJECTIVE OF THE RESEARCH ............... 5
HYPOTHESIS .......................................................... 6
RESEARCH METHODOLOGY .................................. 6
LIMITATION OF THE STUDY ................................... 6
HISTORICAL BACKGROUND ................................... 7
HISTORICAL MEANING .......................................... 8
ESSENTIAL ELEMENTS OF NUISANCE .................. 11
KINDS OF NUISANCE ........................................... 13
Differences between public and private nuisance
............................................................................ 18
Remedies for Nuisance ....................................... 21
Defences to an action for nuisance .................... 23
CONCLUSION ....................................................... 24

2
3
 ACKNOWLEDGEMENT
I would like to show sincere gratitude to all
academic and administrative staff of
CHANAKYA NATIONAL LAW UNIVERSITY and in
particular Ms. Nidhi Kumari, who extended
their help in completion of project work. This
topic, Nuisance, which has enhanced my
knowledge due to the extensive research
required.
I would also like to thank my parents and
friends who helped me a lot in finishing this
project.

4
INTRODUCTION
The word Nuisance is derived from the French word ‘Nuire’
which means to annoy or hurt. It is an unlawful interference
with a person’s use or enjoyment of land. Under normal
circumstance, a person is entitled to the full and reasonable
enjoyment and use of this property tangible, intangible,
movable or immovable, whatsoever. This being his legal right
cannot be taken away without lawful justification. Contrary
to the provided protection if someone unlawfully interferes
with this entitlement of a person he/she commits a tort of
Nuisance.
As per the most accepted definition of Nuisance which is the
one given by Bermingham, Nuisance is an unlawful
interference with a person’s use and enjoyment of land, or of
some right over, or in connection with it. Hence it is an injury
or inconvenience faced by a person in the use of his property
because of another person who unreasonably uses his own
property in a way which negatively affects the former.
According to Stephens “Nuisance is anything done to the hurt
or annoyance of the lands, tenements of another, and not
amounting to trespass.
Another Jurist Salmond expresses “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,
fumes, smoke, gas, noise, heat, vibration, electricity, disease,
germs, animals.

5
In law, nuisance has a more restrictive meaning than it has in
an ordinary parlance. It is not all inconveniences that will
succeed in an action for nuisance. Minor inconveniences
which are usually as a result of normal human interaction in
the society are not actionable in law. The law always tries to
strike a balance between the conflicting interest of the
plaintiff and the defendant in the society. So we can define
the tort of nuisance as an act which gives rise to unlawful,
unwarranted or unseasonable annoyance or discomfort to
the plaintiff and which results in damage to the property of
the plaintiff or interfere with his use and enjoyment of his
land.

AIM AND OBJECTIVE OF THE RESEARCH

1. The researcher’s prime is to define
nuisance in legal terms and also state the
kinds of nuisance.
2. With the help of books and articles the
researcher will also present the defences
available to nuisance.
3. To study some case laws and the
perspective of honourable Supreme Court.

6
HYPOTHESIS
The term ‘nuisance’ has a wider meaning and
its interpretation can be done in several ways.
In all cases nuisance issues need to be
controlled and prevented in a satisfactory
manner.

RESEARCH METHODOLOGY
The researcher has adopted a doctrinal
method of research. The researcher has made
use of the internet and published sources.

LIMITATION OF THE STUDY

The resources on which the researcher resorts
for data and information are limited. There is a
time restraint which bounds the researcher.

7
HISTORICAL BACKGROUND
In the late 19th and early 20th centuries, the
law of nuisance became difficult to
administer, as competing property uses often
posed a nuisance to each other, and the cost
of litigation to settle the issue grew
prohibitive. As such, most jurisdictions now
have a system of land use planning (e.g.
zoning) that describes what activities are
acceptable in a given location. Zoning
generally overrules nuisance. For example: if
a factory is operating in an industrial zone,
neighbours in the neighbouring residential
zone can't make a claim in nuisance.
Jurisdictions without zoning laws essentially
leave land use to be determined by the laws
concerning nuisance.
Similarly, modern environmental laws are an
adaptation of the doctrine of nuisance to
modern complex societies, in that a person's
use of his property may harmfully affect
8
another's property, or person, far from the
nuisance activity, and from causes not easily
integrated into historic understandings of
nuisance law.

HISTORICAL MEANING
The meanings of the term nuisance have
taken many different forms over the years
and were often very vague in its definition. In
general, the term is characterized by a simple
annoyance or hurt caused by some person or
thing. Historically, nuisance referred to the
denial of someone's rights to use land. In the
thirteenth century, the writ of nuisance was
available to plaintiff to take action against
those injuries which were committed wholly
on the land of the defendant, but interfered
with the rights of the plaintiff. This was the
beginnings of the modern day private
nuisance. An extension of private nuisance
eventually gave rise to public nuisance as
9
well. Any interference on the rights of the
public, or the rights of the crown, was
considered to be a crime. These crimes first
developed from wrongdoings on the property
of a public highway, or other public property.
Because of the similarity between crimes
against private property and public property,
these wrong doings were also labelled as
nuisances. The term became so widely used
that it began to describe all types of crime
against the crown or against private citizens.
A private nuisance is primarily based on a civil
wrong in which the rights of a private
individual, in which a wrongdoing has
interfered with the plaintiff's land. A public
nuisance refers instead to a crime which
affects the rights of the public at large. It is a
very broad term that encompasses many
different offenses. A public and private
nuisance actually has very little comparison,
except in name. The nature of the offenses is
actually very different, but they both include
10
some kind of interference by the wrongdoer
that disturbs the plaintiff, or the public. In
order to prove a defendant to be guilty of a
private nuisance, he must have substantially
interfered with the right of a plaintiff's
enjoyment of land. A public nuisance must
affect the community in general. Absolute
nuisances are nuisances for which the
defendant is strictly liable. Certain activities
are so sure to cause a nuisance that they are
labelled this way. Setting off fireworks in
public, storing flammable substances on one’s
property, will qualify as absolute nuisances.

11
ESSENTIAL ELEMENTS OF NUISANCE
For making an act of Nuisance actionable
under the law of torts the following essentials
must be satisfied.
1. Wrongful Act by the Defendant

For the Action against Nuisance to

arise the first essentiality is the
conduct of a wrongful act by the
Defendant. This may include any
action which is prima facie not legal
and unreasonable in the eyes of a
prudent man.
Caveat - If the plaintiff is extra
sensitive and finds the action of the
Defendant to be unreasonable due to
his sensitivity, which otherwise is
reasonable as per a prudent man, the
action for Nuisance cannot arise.

12
 2. Damage caused to the plaintiff
The next essentiality requires a substantive
damage or inconvenience to be caused to the
Plaintiff. The maxim "De minimis non curat
lex" comes into play and provides that law
shall not consider trifles or minimal damage
claimed by the plaintiff due to his own
sensitivity Nevertheless, if the act of the
Defendant involves the hampering of a Legal
Rights of the plaintiff, nuisance comes into
play.
Case Law: In Ushaben V. Bhagyalaxmi Chitra
Mandir, where the Plaintiff sued the
Defendant against the screening of the movie
"Jai Santoshi Maa" claiming that it hurts the
religious sentiments of a particular Hindu
community, the court dismissed the plea
stating that hurt to religious feeling was not an
actionable wrong and the plaintiff is free to not
watch the Movie again.

13
Hence it was held that in order to claim
damages for Nuisance, the interference shall
be in a stale of continuing wrong.
In Halsey V Esso Petroleum Co Ltd, where the
defendant's factory emitted smokes, oil,
fumes and smell and polluted the environment
along with harming the plaintiff's health
because of his own sensitive health issue, the
former were held liable to the latter only for
the emission of smoke, oil and fume and not
for health hazard.

KINDS OF NUISANCE
Nuisance as a tort is further divided into two
types-
 Private Nuisance
 Public Nuisance

PRIVATE NUISANCE

14
Private nuisance protects the interest of the
occupier of land or premises in the use and
enjoyment of his land. This type of nuisance
usually emanates from the defendant's private
land or his actions in his private capacity.
Accordingly, a plaintiff must show that he has
some interest in the land in question. Thus, the
land must not be public land. The law of
private nuisance seeks to strike a balance
between two conflicting interests; that of an
occupier in the using his land as he thinks fit
and that of his neighbour in the quiet
enjoyment of his land. Thus, a person must not
use his property is such a way that will cause
inconvenience to his neighbours.

Elements which constitutes a private nuisance

1.The interference must be unreasonable or

unlawful. It is meant that the act should not be
justifiable in the eyes of the law and should be
by an act which no reasonable man would do.

15
2. Such interference has to be with the use or
enjoyment of land, or of some rights over the
property, or it should be in connection with
the property or physical discomfort.
3. There should be visible damage to the
property or with the enjoyment of the
property in order to constitute private
nuisance.

Rose v. Miles (1815)

The defendant had wrongfully obstructed a
public navigable creek which obstructed the
defendant from transporting his goods
through the creek due to which he had to
transport his good through land because of
which he suffered extra cost to the
transportation. It was held that the act of the
defendant had caused a public nuisance as the
plaintiff successfully proved that he had
incurred loss over other members of the

16
society and this he had a right of action against
the defendant.

A nuisance may be in respect of either

property or physical discomfort:
1. Property
In the case of a nuisance with respect to
the property, any sensible injury to the
property will be enough to support an
action for the damages.
2. Physical discomfort
In a suit of nuisance arising out of physical
discomfort, there are two essential
conditions required:
 In excess of the natural and ordinary
course of enjoyment of the property.
The usage by the third party should be
of out of the natural course of
enjoyment from one party.

17
  Interfering with the ordinary conduct
of human existence.
The discomfort should be of such a
degree that it would affect an
individual in the locality and people
would not be able to put up or tolerate
with the enjoyment.

PUBLIC NUISANCE
A public nuisance is a crime, while a private
nuisance is only a tort a public nuisance or
common nuisance is one which materially
affects the reasonable comfort and
convenience of life of a class of the public
who come within the sphere or
neighbourhood of its operation, the question
whether the number of persons affected is
sufficient to constitute a claw is one of fact in
every case, and it is sufficient lo show that a
representative cross-section of that class has
been affected for an injunction to issue. The
18
term public nuisance covers a wide variety of
minor crimes that threaten the health,
morals, safety, comfort, convenience, or
welfare of a community. Violators may be
punishable by a crime sentence, a fine or
both.
A defendant may also be required to remove
a nuisance or to pay the cost of removal. For
example, a manufacturer who has polluted a
stream might be fined and might also be
order to pay cost of clean-up. Public
nuisances may interfere with public health,
such as in the keeping of animals or a malarial
pond.

Differences between public and private nuisance

The following are the differences between
public and private nuisance-
1. Private nuisance is an injury to an individual
in particular whereas public nuisance is an

19
injury to the public in general. Public nuisance
is a crime covering many kinds of interferences
with rights of the public at large e.g. brothel-
keeping, obstructing public highways, selling
impure food and so on.
2. In a private nuisance, an action for dangers
lie. The person whose comfortable enjoyment
of properties is disturbed may file a suit in civil
court for damages or for injunction. The
commission of public nuisance is not tortious
unless an individual proves that he has
suffered particular damage beyond that
suffered by the rest of community.
3. A private nuisance, may be abated (done
away with) by one who inconvenienced by it, a
public nuisance cannot be abated by an
individual except to the extent to which it
causes some special to the person who desires
to abate it.
4. A private nuisance may become legal by
prescription i.e. and unobstructed existence
20
for 20 years. On the contrary, a public nuisance
cannot be legalised after any length of time
and so a man who keeps a game house for
gamblers for 20 or for any larger number of
years cannot acquire any right for keeping it.
At any time, he may be punished or the work
may be stopped by the authorities.
5. In private nuisance, the plaintiff must prove
interference with his enjoyment of land,
whereas claims based on public nuisance are
not necessarily linked with the user of land.
6. Public nuisance is regarded as criminal
offence in of India. Chapter 14 of Indian Penal
Code provides for the punishment of the
public nuisance such as spreading of infection,
fouling water, making atmosphere noxious to
health, adulteration of food, drinks and drugs
and so on. In Chapter 10 the Criminal
Procedure Code make provision for removal of

21
public nuisance. This chapter include Sections
133 to 140.1

Remedies for Nuisance

1. Abatement of Nuisance: This refers to self-help
in order to stop nuisance. Generally, self-help is
not allowed by the court of the law. The court
usually frowns at the remedy of self-help. This is
to avoid chaos in the society. In minor cases of
nuisance, self- help as a remedy may be allowed
by law considering that court cases are usually
expressive and may take long to determine.
2. Injunction: This is the most important judicial
remedy in cases of nuisance There are many types
of injunction:
 Interim injunction - is obtained ex parte
and is only granted where it is not
possible or not appropriate to give the
other party proper notice.
 Interlocutory injunction – is a court order
to compel or prevent a party from doing
1
Ramaswamy Iyer’s, The Law of Torts 413 (10th ed.)
22
 certain acts pending the final
determination of the case.
 Final injunction – a court order entered
after trial on all issues, directing that the
losing party take some action or stop
doing something.
 Prohibitory injunction – an order of court
requiring an person to restrain from doing
any particular act.
 Mandatory injunction – an order requiring
the defendant to do some positive act for
the purpose of putting an end to a
wrongful act.2

Injunction is a discretionary remedy and the court

has discretion to grant or refuse injunction so that
even if one has made out a good case for the
grant of injunction, the court may still find a good
reason to refuse injunction. However, the court's
discretion must be exercised judiciously and
judicially.

2
Principles of mandatory injunction, https://districts.ecourts.gov.in (Nov. 1)
23
3. Damages: This is the monetary compensation
for any loss or injury occasioned to the plaintiff by
reason of the nuisance. There are many types of
damages, namely
 Aggravated damages
 Nominal damages
 Special damages

Defences to an action for nuisance

1. The act complained of is not unreasonable,

unjustifiable, unwarranted or unlawful.
2. That there was consent of the plaintiff or
volenti non fit injuria. Generally, that it is not a
defence that the plaintiff came into the
nuisance but in appropriate cases the court
may use it as a basis for refusal or injunction
such as in Miller v. Jackson.3

3
Nuisance: A Tort, http://www.legalservicesindia.com/article/825/Nuisance:-
A-Tort.html (Nov. 1)
24
3. Prescription: a claim that a defendant has
acquired a right to cause the relevant
nuisance because they have done so for over
20 years without interruption.
4. Contributory negligence
5. Act of a stranger
6. Inevitable accident
7. Act of necessity
8. Statutory authorization

CONCLUSION
The concept of nuisance relates to the day to
day activities of an individual. Nuisance as a
tort got comprehensiveness through a
plethora of judgments along with the works
of many eminent jurists. India was once a
British colony has relied heavily on the English
judgments to understand and develop the
concept of this tort. However, it has also
amended and modified various aspects of
25
interpretation, depending upon its own
geographical, cultural and economic diversity
in order to strive for providing justice to
almost each of its people and maintain the
reign of Rule of Law along with Justice Equity
and good conscience.
The law of nuisance is almost an uncodified
one. Yet it has grown and expanded through
interpretation and through a plethora of
judgments. The concept of nuisance is one
that arises most commonly in a man's daily
life and the decision regarding the same has
to be delivered on a case to case base
ensuring that neither the aggrieved plaintiff
goes back uncompensated nor the defendant
is punished unnecessarily. Indian Courts in the
matters of nuisance have borrowed quite
intensively from the English principles as well
as from the decisions of the common law
system along with creating their own
precedents. This has resulted in a sound

26
system of law being developed that ensures
fairness and well- being of all i.e. the parties
and the society at large.

BIBLIOGRAPHY
BOOKS
1. Ramaswamy Iyer, The Law of Torts (10th
ed.)
2. Dr. J.N. Pandey, Law of Torts with
Consumer Protection Act and Motor Vehicles
Act.
WEBSITES
1.
http://www.legalservicesindia.com/article/82
5/Nuisance:-A-Tort.html
2. http://en.wikipedia.org/wiki/Nuisance
3. http://nuisance.uselegal.com/types-of-
nuisances/private-nuisances/

27
4.
http://www.indiankanoon.com/doc/1294636

28
29