NUISANCE

A PROJECT SUBMITTED TO

Army Institute of Law, Mohali

IN THE PARTIAL FULFILMENT OF THE

REQUIREMENT FOR THE AWARD OF DEGREE OF
BA LLB

SUBMITTED TO: SUBMITTED BY:

Dr. Anmolpreet Kaur Name: Rudra Pratap Singh
Roll no: 24058

Punjabi University, Patiala, Punjab

Session – 2024

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 DECLARATION

It is certified work present in this report entitled “Nuisance” embodies

the results of original research work carried out by me. All the ideas
and references have duly acknowledged.

Name: Rudra Pratap Singh Roll no.: 24058

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 ACKNOWLEDGEMENT

In preparation of my assignment, I had to take the help and guidance of some

respected persons who deserve my deepest gratitude. As the completion of this
assignment gave me much pleasure, I would like to show my gratitude towards
Dr. Anmolpreet Kaur for giving me the guidance for the assignment through
numerous consultations. I would also like to extend my gratitude to all those who
have directly and indirectly guided me in writing this assignment.
I would also like to thank my family and peers whose constant encouragement
kept me motivated to work towards the completion of this project. I would also
like to extend my gratitude towards Army Institute of Law, Mohali and Dr
Tejinder Kaur, the Principal of Army Institute of Law, Mohali for giving me this
golden opportunity of making a project on such and interesting and engaging
topic.

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 Index

[Link] Topic Page no.

1. Inroduction 5-6

2. Essentials of Nuisance 7
3. Kind of Negligence 8-13

4. Defences to Nuisance 14-16

5. Remedies for Nuisance 17
6. Conclusion 18

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 INTRODUCTION

Nuisance (from archaic nocence, through Fr. noisance, nuisance, from Lat. nocere, "to hurt")
is a common law tort. It means something which causes offence, annoyance, trouble or injury.
A nuisance can be either public (also "common") or private. A public nuisance was defined
by English scholar Sir James Fitzjames Stephen as,

"an act not warranted by law, or an omission to discharge a legal duty, which
act or omission obstructs or causes inconvenience or damage to the public in
the exercise of rights common to all Her Majesty's subjects".1

Private nuisance is the interference with the right of specific people. Nuisance signifies that
the "right of quiet enjoyment" is being disrupted to such a degree that a tort is being
committed .

In the late 19th and early 20th centuries, the law of nuisance became difficult to
administer[citation needed], 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.

Under the common law, persons in possession of real property (land owners, lease holders
etc.) are entitled to the quiet enjoyment of their lands. However this doesn't include visitors
or those who aren't considered to have an interest in the land. If a neighbour interferes with
that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that
extends past the boundaries of the property, the affected party may make a claim in nuisance.

The word “nuisance” is derived from the French word “nuire”, which means “to
do hurt, or to annoy”. One in possession of a property is entitled as per law to
undisturbed enjoyment of it. If someone else’s improper use in his property
results into an unlawful interference with his use or enjoyment of that property or
of some right over, or in connection with it, we may say that tort of nuisance

1
1. Sir J. F. Stephen, Digest of the Criminal Law, p.120

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occurred. In other words, Nuisance is an unlawful interference with a person’s
use or enjoyment of land, or of some right over, or in connection with it

Nuisance is an injury to the right of a person in possession of a property to

undisturbed enjoyment of it and result from an improper use by another person in
his property.

Stephen defined nuisance to be “anything done to the hurt or annoyance of the

lands, tenements of another, and not amounting to a trespass.”

According to Salmond, “the wrong of nuisance consists in causing or allowing

without lawful justification the escape of any deleterious thing from his land or
from elsewhere into land in possession of the plaintiff, e.g. water, smoke, fumes,
gas, noise, heat, vibration, electricity, disease, germs, animals”.

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 ESSENTIALS OF NUISANCE

In order that nuisance is actionable tort, it is essential that there should exist:
• wrongful acts;
• damage or loss or inconvenience or annoyance caused to another.
Inconvenience or discomfort to be considered must be more than mere delicacy
or fastidious and more than producing sensitive personal discomfort or
annoyance. Such annoyance or discomfort or inconvenience must be such which
the law considers as substantial or material.
In Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13, the
plaintiffs’-appellants sued the defendants-respondents for a permanent injunction
to restrain them from exhibiting the film “Jai Santoshi Maa”. It was contended
that exhibition of the film was a nuisance because the plaintiff’s religious feelings
were hurt as Goddesses Saraswati, Laxmi and Parvati were defined as jealous and
were ridiculed.
It was held that hurt to religious feelings was not an actionable wrong. Moreover
the plaintiff’s were free not to see the movie again.
In Halsey v. Esso Petroleum Co. Ltd. (1961) 2 All ER 145:,the defendant’s
depot dealt with fuel oil in its light 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 proof that the smuts had damaged clothes
hung out to dry in the garden of the plaintiff’s house and also paint work of the
plaintiff’s car which he kept on the highway outside the door of his house.
The depot emanated a pungent and nauseating smell of oil which went beyond a
background smell and was more than would affect a sensitive person but the
plaintiff had not suffered any injury in health from the smell. During the night
there was noise from the boilers which at its peak caused window and doors in
the plaintiff’s house to vibrate and prevented the plaintiff’s sleeping. An action
was brought by the plaintiff for nuisance by acid smuts, smell and noise.
The defendants were held liable to the plaintiff in respect of emission of acid
smuts, noise or smell.2

2
Indian Penal Code, 1860, Section 268, India Code [Link] accessed on 24
September.

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 KINDS OF NUISANCE

Nuisance is of two kinds:

• Public Nuisance

Under Section 3 (48) of the General Clauses Act, 1897, the words mean a
public nuisance defined by the Indian Penal Code.

Section 268 of the Indian Penal Code, defines it as “an act or illegal omission
which causes any common injury, danger or annoyance, to the people in general
who dwell, or occupy property, in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who may have occasion to
use any public right.”

Simply speaking, public nuisance is an act affecting the public at large, or some
considerable portion of it; and it must interfere with rights which members of the
community might otherwise enjoy.

Thus acts which seriously interfere with the health, safety, comfort or
convenience of the public generally or which tend to degrade public morals have
always been considered public nuisance.

Examples of public nuisance are Carrying on trade which cause offensive smells,
Malton Board of Health v. Malton Manure Co., (1879) 4 Ex D 302; Carrying
on trade which cause intolerable noises, Lambton v. Mellish, (1894) 3 Ch 163;
Keeping an inflammable substance like gunpowder in large quantities, Lister’s
case, (1856) 1 D & B 118; Drawing water in a can from a filthy source, Attorney
General v. Hornby, (1806) 7 East 195

Public nuisance can only be subject of one action, otherwise a party might be
ruined by a million suits. Further, it would give rise to multiplicity of litigation
resulting in burdening the judicial system. Generally speaking, Public Nuisance is
not a tort and thus does not give rise to civil [Link] the following
circumstances, an individual may have a private right of action in respect a public
nuisance.

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1. He must show a particular injury to himself beyond that which is suffered by
the rest of public i.e. he must show that he has suffered some damage more than
what the general body of the public had to suffer.

2. Such injury must be direct, not a mere consequential injury; as, where one is
obstructed, but another is left open.

3. The injury must be shown to be of a substantial character, not fleeting or

evanescent.

In Solatu v. De Held (1851) 2 Sim NS 133, the plaintiff resided in a house next
to a Roman Catholic Chapel of which the defendant was the priest and the chapel
bell was rung at all hours of the day and night. It was held that the ringing was a
public nuisance and the plaintiff was held entitled to an injunction. 3

In Leanse v. Egerton, (1943) 1 KB 323, The plaintiff, while walking on the

highway was injured on a Tuesday by glass falling from a window in an
unoccupied house belonging to the defendant, the window having been broken in
an air raid during the previous Friday night.

Owing to the fact that the offices of the defendant’s agents were shut on the
Saturday and the Sunday and to the difficulty of getting labour during the week
end, no steps to remedy the risk to passers by had been taken until the Monday.
The owner had no actual knowledge of the state of the premises.

It was held that the defendant must be presumed to have knowledge of the
existence of the nuisance, that he had failed to take reasonable steps to bring it to
an end although he had ample time to do so, and that, therefore, he had
“continued” it and was liable to the plaintiff.

In Attorney General v. P.Y.A. Quarries, (1957)1 All ER 894:, In an action at

the instance of the Attorney General, it was held that the nuisance form vibration
causing personal discomfort was sufficiently widespread to amount to a public
nuisance and that injunction was rightly granted against the quarry owners
restraining them from carrying on their operations.

Without Proving Special Damage

3
Supreme Court Cases, "Ram Raj Singh v. Babulal," [Link] (last accessed
Sep. 27, 2024).

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In India under Section 91 of the Civil Procedure Code, allows civil action without
the proof of special damage. It reads as follows:

“S. 91.(1) In the case of a public nuisance or other wrongful act affecting, or
likely to affect, the public, a suit for a declaration and injunction or for such other
relief as may be appropriate in the circumstances of the case, may be instituted

by the Advocate General, or with the leave of the court, by two or more persons,
even though no special damage has been caused to such persons by reason of
such public nuisance or other wrongful act.

(2) Nothing in this section shall be deemed to limit or otherwise affect any right
of suit which may exist independently of its provisions.”

Thus a suit in respect of a public nuisance may be instituted by any one of the
followings:

By the Advocate-General acting ex officio; or

By him at the instance of two or more persons or

by two or more persons with the leave of the Court.

• Private Nuisance
Private nuisance is the using or authorising the use of one’s property, or of
anything under one’s control, so as to injuriously affect an owner or occupier of
property by physically injuring his property or affecting its enjoyment by
interfering materially with his health, comfort or convenience. In contrast to
public nuisance, private nuisance is an act affecting some particular individual or
individuals as distinguished from the public at large. The remedy in an action for
private nuisance is a civil action for damages or an injunction or both and not an
indictment.

Elements of Private Nuisance

Private nuisance is an unlawful interference and/or annoyance which cause
damages to an occupier or owner of land in respect of his enjoyment of the land.

Thus the elements of private nuisance are:

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1. unreasonable or unlawful interference;

2. such interference is with the use or enjoyment of land, or some right over, or in

connection with the land; and

3. damage.

Nuisance may be with respect to property or personal physical discomfort.

1. Injury to property

In the case of damage to property any sensible injury will be sufficient to support
an action.

In St. Helen Smelting Co. v. Tipping, (1865) 77 HCL 642:, the fumes from the
defendant’s manufacturing work damaged plaintiff’s trees and shrubs. The Court
held that such damages being an injury to property gave rise to a cause of action.

In Ram Raj Singh v. Babulal, AIR 1982 All. 285:, the plaintiff, a doctor,
complained that sufficient quantity of dust created by the defendant’s brick
powdering mill, enters the consultation room and causes discomfort and
inconvenience to the plaintiff and his patients.

The Court held that when it is established that sufficient quantity of dust from
brick powdering mill set up near a doctor’s consulting room entered that room
and a visible thin red coating on clothes resulted and also that the dust is a public
hazard bound to injure the health of persons, it is clear the doctor has proved
damage particular to himself. That means he proved special damage.

In Hollywood Silver Fox Farm Ltd v Emmett, (1936) 2 KB 468:, A carried on

the business of breeding silver foxes on his land. During the breeding season the
vixens are very nervous and liable if disturbed, either to refuse to breed, or to
miscarry or to kill their young. B, an adjoining landowner, maliciously caused his
son to discharge guns on his own land as near as possible to the breeding pens for
the purpose of disturbing A’s vixens. 4

A filed a suit for injunction against B and was successful.

In Dilaware Ltd. v. Westminister City Council, (2001) 4 All ER 737 (HL):, the
respondent was owner of a tree growing in the footpath of a highway. The roots
of the tree caused cracks in the neighbouring building. The transferee of the

4
Ratanlal & Dhirajlal, The Law of Torts (27th edn, LexisNexis Butterworths 2019)

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building of the building, after the cracks were detected, was held entitled to
recover reasonable remedial expenditure in respect of the entire damage from the
continuing nuisance caused by the trees.

2. Physical discomfort

In case of physical discomfort there are two essential conditions to be fulfilled:

a. In excess of the natural and ordinary course of enjoyment of the property –

In order to be able to bring an action for nuisance to property the person injured
must have either a proprietary or possessory interest in the premises affected by
the nuisance.

b. Materially interfering with the ordinary comfort of human existence

The discomfort should be such as an ordinary or average person in the locality

and environment would not put up with or [Link] factors are material
in deciding whether the discomfort is substantial:

 its degree or intensity;

 its duration;

 its locality;

 the mode of user of the property.

In Broadbent v. Imperial Gas Co. (1856) 7 De GM & G 436:, an injunction

was granted to prevent a gas company from manufacturing gas in such a close
proximity to the premises of the plaintiff, a market gardener, and in such a
manner as to injure his garden produce by the

escape of noxious matter.

In Shots Iron Co. v. Inglis, (1882) 7 App Cas 518: An injunction was granted to
prevent a company from carrying on calcining operations in any manner whereby
noxious vapours would be discharged, on the pursuer’s land, so as to do damage
to his plantations or estate.

In Sanders Clark v. Grosvenor mansions Co. (1900) 16 TLR 428: An

injunction was granted to prevent a person from turning a floor underneath a
residential flat into a restaurant and thereby causing a nuisance by heat and smell
to the occupier of the flat.

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In Datta Mal Chiranji Lal v. Lodh Prasad, AIR 1960 All 632: The defendant
established an electric flour mill adjacent to the plaintiff’s house in a bazaar
locality and the running of the mill produced such noise and vibrations that the
plaintiff and his family, did not get peace and freedom from noise to follow their
normal avocations during the day. They did not have a quiet rest at night also.

It was held that the running of the mill amounted to a private nuisance
which should not be permitted.

In Palmar v. Loder, (1962) CLY 2233: In this case, perpetual injunction was
granted to restrain defendant from interfering with plaintiff’s enjoyment of her
flat by shouting, banging, laughing, ringing doorbells or otherwise behaving so as
to cause a nuisance by noise to [Link] Radhey Shiam v. Gur Prasad Sharma,
AIR 1978 All 86: It was held by the Allahabad High Court held that a permanent
injunction may be issued against the defendant if in a noisy locality there is
substantial addition to the noise by introducing flour mill materially affecting the
physical comfort of the plaintiff.

In Sturges v. Bridgman (1879) 11 Ch D 852, A confectioner had for upwards of

twenty years used, for the purpose of his business, a pestle and mortar in his back
premises, which abutted on the garden of a physician, and the noise and vibration
were not felt to be a nuisance or complained of until 1873, when the physician
erected a consulting room at the end of his garden, and then the noise and
vibration, owing to the increased proximity, became a nuisance to him. The
question for the consideration of the Court was whether the confectioner had
obtained a prescriptive right to make the noise in question.

It was held that he had not, inasmuch as the user was not physically capable of
prevention by the owner of the servient tenement, and was not actionable until the
date when it became by reason of the increased proximity a nuisance in law, and
under these conditions, as the latter had no power of prevention, there was no
prescription by the consent or acquiescence of the owner of the servient tenement.

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 DEFENCES TO NUISANCE

Following are the valid defences to an action for nuisance

It is a valid defence to an action for nuisance that the said nuisance is under the
terms of a grant.

• Prescription
A title acquired by use and time, and allowed by Law; as when a man claims any
thing, because he, his ancestors, or they whose estate he hath, have had
possession for the period prescribed by law. This is there in Section 26,
Limitation Act & Section 15 Easements [Link] things are necessary to
establish a right by prescription:
1. Use and occupation or enjoyment;
2. The identity of the thing enjoyed;
3. That it should be adverse to the rights of some other person.
A special defence available in the case of nuisance is prescription if it has been
peaceable and openly enjoyed as an easement and as of right without interruption
and for twenty years. After a nuisance has been continuously in existence for
twenty years prescriptive right to continue it is acquired as an easement
appurtenant to the land on which it exists. On the expiration of this period the
nuisance becomes legalised ab initio, as if it had been authorised in its
commencement by a grant from the owner of servient land. The time runs, not
from the day when the cause of the nuisance began but from the day when the
nuisance began.
The easement can be acquired only against specific property, not against the
entire world.
In Elliotson v. Feetham (1835) 2 Bing NC 134, it was held that a prescriptive
right to the exercise of a noisome trade on a particular spot may be established by
showing twenty years’ user by the defendant.
In Goldsmid v. Turubridge Wells Improvement Commissioners (1865) LR 1
Eq 161, it was held that no prescriptive right could be obtained to discharge
sewage into a stream passing through plaintiff’s land and feeding a lake therein
perceptibly increasing quantity.

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In Mohini Mohan v. Kashinath Roy, (1909) 13 CWN 1002, it was held that no
right to hold kirtan upon another’s land can be acquired as an easement. Such a
right may be acquired by custom.
In Sturges v. Bridgman (1879) 11 Ch.D. 852 A had used a certain heavy
machinery for his business, for more than 20 years. B, a physician neighbour,
constructed a consulting room adjoining A’s house only shortly before the present
action and then found himself seriously inconvenienced by the noise of A’s
machinery.
B brought an action against A for abatement of the nuisance. It was held that B
must succeed. A cannot plead prescription since time runs not from the date when
the cause of the nuisance began but from the day when the nuisance began.

• Statutory Authority
Where a statute has authorised the doing of a particular act or the use of land in a
particular way, all remedies whether by way of indictment or action, are taken
away; provided that every reasonable precaution consistent with the exercise of
the statutory powers has been taken. Statutory authority may be either absolute or
conditional.
In case of absolute authority, the statute allows the act notwithstanding the fact
that it must necessarily cause a nuisance or any other form of injury.
In case of conditional authority the State allows the act to be done only if it can
be without causing nuisance or any other form of injury, and thus it calls for the
exercise of due care and caution and due regard for private rights.
In Vaughan v. Taff Vale Rly (1860) 5 H.N. 679, The defendants who had
authority by Statute to locomotive engines on their railway, were held not liable
for a fire caused by the escape of sparks.

In a suit for nuisance it is no defence:

1. Plaintiff came to the nuisance: E.g. if a man knowingly purchases an estate in
close proximity to a smelting works his remedy, for a nuisance created by fumes
issuing therefrom is not affected. It is not valid defence to say that the plaintiff
came to the nuisance.
2. In the case of continuing nuisance, it is no defence that all possible care and
skill are being used to prevent the operation complained of from amounting to a

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nuisance. In an action for nuisance it is no answer to say that the defendant has
done everything in his power to prevent its existence.
3. It is no defence that the defendant’s operations would not alone mount to
nuisance. E.g. the other factories contribute to the smoke complained of.
4. It is no defence that the defendant is merely making a reasonable use of his
own property.
No use of property is reasonable which causes substantial discomfort to other
persons.
5. That the nuisance complained of although causes damages to the plaintiff as an
individual, confers a benefit on the public at large. A nuisance may be the
inevitable result of some or other operation that is of undoubted public benefit,
but it is an actionable nuisance nonetheless. No consideration of public utility
should deprive an individual of his legal rights without compensation.
6. That the place from which the nuisance proceeds is the only place suitable for
carrying on the operation complained of. If no place can be found where such a
business will not cause a nuisance, then it cannot be carried out at all, except with
the consent or acquiescence of adjoining proprietors or under statutory sanction.

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 REMEDIES FOR NUISANCE

The remedies available for are as follows nuisance:

• Injunction- It maybe a temporary injunction which is granted on an interim
basis and that
maybe reversed or confirmed. If it’s confirmed, it takes the form of a permanent
injunction.
However the granting of an injunction is again the discretion of the Court.
• Damages- The damages offered to the aggrieved party could be nominal
damages i.e.
damages just to recognize that technically some harm has been caused to plaintiff
or statutory damages i.e. where the amount of damages is as decided by the
statute and not dependent on the harm suffered by the plaintiff or exemplary
damages i.e. where the purpose of paying the damages is not compensating the
plaintiff, but to deter the wrongdoer from repeating the wrong committed by him.

Abatement- It means the summary remedy or removal of a nuisance by the party

injured
without having recourse to legal proceedings. It is not a remedy which the law
favors and is not usually advisable. E.g. - The plaintiff himself cuts off the branch
of tree of the defendant which hangs over his premises and causes nuisance to
him.

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 CONCLUSION

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

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