DR .
RAM MANOHAR LOHIYA NATIONAL LAW
UNIVERSITY
ENVIRONMENTAL LAW
Project Title-The Tort of nuisance under environmental law
Submitted to: Submitted by:
Dr. Amandeep Singh Vaishnavi Singh
Assistant Professor (Law) EnrollmentNo-210101162
Dr. RMLNLU V1 semester
1
TABLE OF CONTENTS
[Link]………………………………………………..3
[Link]……………………………………………………..4
[Link]………………………………………………………...5
[Link] and Private Nuisance………………………………….…7
[Link] provisions with regard to public nuisance………………..9
[Link] activism and S.133 of Crpc …………………………...11
[Link]………………………………………………..….13
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ACKNOWLEDGEMENT
I have taken efforts in this project. However, it would not have been
possible without the kind support and help of many individuals and
organizations. I would like to extend my sincere thanks to all of them. I am
highly indebted to Dr. Amandeep Singh for his guidance and constant
supervision as well as for providing necessary information regarding the
project, also for his support in completing the project. I extend my
gratitude towards the seniors and batchmates of my course, who constantly
helped me find the best sources for research. Finally, I acknowledge the
authorities as well as the caretakers of Dr. Madhu Limaye Library. This
project is a result of my efforts combined with all the means and
environment that have been provided to me by Dr. Ram Manohar Lohiya
National Law University, Lucknow, and its authorities and I am thankful to
them.
DECLARATION
I hereby declare that the project on “Can a new resolution plan be
considered after a resolution plan is approved by the committe of
creditors:An analysis of the DHFL Saga” submitted by me to Dr. Ram
Manohar Lohiya National Law University, Lucknow in partial fulfillment
requirement for the award of the degree of [Link]. B (Hons.) is a record
of bonafide project work carried out by me under the guidance of Dr.
Amandeep Singh . I further declare that the work reported in this project
has not been submitted, and will not be submitted either in part or in full,
for the award of any other degree or diploma in this institute or any other
university.
Vaishnavi Singh
Enrolment Number- 210101162
VIth Semester, [Link]. B (Hons.)
Dr. Ram Manohar Lohiya National Law University, Lucknow
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INTRODUCTION
Saghir Ahmed J of the Supreme Court has aptly observed, in unequivocal terms:
Pollution is a civil wrong. By its very nature, it is a tort committed against a
community as a whole. A person, therefore, who is guilty of causing pollution,
has to pay damages for restoration of the environment and ecology. In addition
to the damages aforesaid, the person guilty of causing pollution can also be
held liable to pay exemplary damages so that it may act as a deterrent for
others not to cause pollution in any manner.1
Law of tort, basically a part of common law, is based on judicial
pronouncements. There are various torts which provide relief for environmental
pollution. Some of them are:
Nuisance
Trespass
Negligence
Strict Liability
The very roots of environmental law can be found in the common law tort of
nuisance.2The definition of pollution under the Water (Prevention and Control
of Pollution) Act, 1974 establishes that contamination of water can be said to be
pollution, when it may or is likely to create a nuisance.3This research paper
discusses the tort of nuisance with respect to Environmental Law. Public and
Private nuisance under environmental law will also be dealt with.
1
M.C Mehta v. Kamal Nath (2000) 6 SCC 21
2
Rogers,Winfield and Jolowicz on Tort (1984) 377.
3
P. Leelakrishnan, Public Nuisance and Civil Remedies, Environmental Law in India, LexisNexis, 3rd
ed,2008
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NUISANCE
Nuisance is a common law tort. It means that which causes offence, annoyance,
trouble or injury.
Legally, the term nuisance is traditionally used in three4 ways:
1. To describe an activity or condition that is harmful or annoying to others
(e.g., indecent conduct, a rubbish heap or a smoking chimney)
2. To describe the harm caused by the before-mentioned activity or condition
(e.g., loud noises or objectionable odors)
3. To describe a legal liability that arises from the combination of the two.
However, the "interference" was not the result of a neighbor stealing land or
trespassing on the [Link], it arose from activities taking place on another
person's land that affected the enjoyment of that land.
A nuisance can be either public (also "common") or private. The law of
nuisance was created to stop such bothersome activities or conduct when they
unreasonably interfered either with the rights of other private landowners (i.e.,
private nuisance) or with the rights of the general public (i.e., public nuisance).5
Nuisance is a recurring state of affairs. It covers the escape of deleterious things
and inconvenience to another. 'Nuisance ordinarily means anything which
annoys, hurts or that is offensive. It maybe through escape of water, smoke,
fumes, gas, noise, heat, vibrations, electricity, disease, germs, trees, etc.
4
Winfield on Tort, 7th ed. P. 193
5
ibid
5
Nuisance arises from an allegation of injury to person or property. As in other
areas of tort, the injury need not be physical, and can include injury to rights or
property enjoyment. The law of nuisance recognizes two distinct categories of
claims: private nuisance and public nuisance.
Defendant's conduct may create an actionable public nuisance when it interferes
with the public health, safety or welfare. It may constitute a private nuisance
when it interferes with another's current possessory or beneficial interest in the
use or quiet enjoyment of land.6 In Dhannalal v. Thakur Chittarsignh
Mehtapsingh7 ,the MP High Court held that the constant noise, if abnormal or
unusual, can be actionable if it interferes with another's physical comfort.
The person causing nuisance maybe restrained by injunction, although he may
be conducting his business in a proper manner according to rules framed in this
behalf either by the municipality or the state.
The focal point of law of nuisance is the material interference with the ordinary
comfort of human existence. The following factors are material in deciding
whether the discomfort is substantial as to make it actionable8
Degree of intensity
Duration
Locality
The mode of using the property
The court held that anvthing which lessens the comfort or endangers the health
or safety of a neighbor must be an actionable nuisance. In this case. the plainti ff
complained of smoke and smell form the burning of bricks by the defendants.9
6
Pollock on Torts, 15th Ed., p. 302
7
AIR 1959 MP 240
8
S.C. Shastri, Environmental Pollution and Control under Other Laws,Environmental Law, Eastern
Book Company, 5th ed, 2015
9
B amford v. Turnley, (1862) 3 B&S 66
6
PUBLIC AND PRIVATE NUISANCE
The distinction between public and private nuisance is important for a number
of reasons. Most importantly, it determines whether or not you have standing
(I.e., the right to sue). An individual does not have standing to sue for a public
nuisance, unless an exception applies. The principle exception is if you are
harmed in a manner that is different in kind from the harm suffered by the
public at large (i.e., you have a special injury).
● A private nuisance is an unreasonable, unwarranted, or unlawful
interference with another person's private use and enjoyment of his or her
property. A public nuisance is an unreasonable, unwarranted, or unlawful
interference with a right common to the general public. Generally, any
nuisance that is not a public nuisance is a private nuisance.
● A private nuisance is a civil wrong, meaning that damages are the
appropriate remedy for those who have been harmed. On the other hand,
a public nuisance is sometimes classified as a criminal offense, and it may
be remedied by civil or criminal penalties, butit usually takes a city
attorney or another public official (as opposed to a private citizen) to
initiate an action over a public nuisance.
● The complainant in private nuisance needn't own the property; he need
only be a lawful occupant or the holder of one or more other use rights. In
contrast, for a suit in public nuisance, the complainant needn't have a
property interest in any property affected by defendant's conduct. A
defendant may incur liability in both private and public nuisance.
● For an individual to have an action for compensation for the
inconvenience or interference suffered, they would have to show that the
impact was such as to cause them special damage. That is, they must
show that the impact on them was greater than that on the general public.
To have a claim relating to a private nuisance, you must show that
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you live on the property (this includes if you are living on the land under an
agreement with the owner). In making your complaint to the court, you must
show that the nuisance complained of is not trivial or unreasonable.
It is important to note here that both categories have a substantial nexus with
environment management. But the law of public nuisance has a predominant
connection with environmental law and is an effective remedy at the grassroots.
In case of private nuisance under environmental law, it is important for the
plaintiff to show that he has suffered some special damage, i.e., he has suffered
some damage that is more than what the others have suffered.
In Dr. Ram Raj Singh v. Babulal10, the defendant created a brick grinding
machine adjoining the premises of the plaintiff, who was a medical practitioner.
The brick grinding machine generated dust, which polluted the atmosphere. The
dust entered the consulting chamber of the plaintiff and caused physical
inconvenience to him and his patients. It was held that special damage to the
plaintiff had been proved and a permanent injunction was issued against the
defendant restraining him from running his brick grinding machine there.
In Radhey Shyam V. Gur Prasad,11 Gur Prasad and another filed a suit against
Radhey Shyam and others for a permanent injunction to restrain them from
installing and running a flour mill in their premises. It was alleged that the flour
mill would cause nuisance to the plaintiffs, who were occupying the first floor
of the same premises inasmuch as the plaintiffs would lose their peace on
account of rattling noise of the flour mill and thereby their health would also be
adversely affected. It was held that substantial addition to the noise in a noisy
locality, by the running of impugned machines, seriously interfered with the
physical comfort of the plaintiffs and as such, it amounted to nuisance, and the
plaintiffs were entitled to an injunction against the defendants.
In the case of Ram Raj Singh v. Babulal12, the court explained that when
something is done by the owner of a neighboring land upon his own land, which
is not comfortable or is wholly uncomfortable with physical comfort or human
existence, the person aggrieved gets a right to
10
AIR 1982 All.285
11
AIR 1978 All.86
12
AIR 1982 All.285
8
sue. The act of the neighbor of which he will complain will be an actionable
nuisance. Special damage must be caused. 'Special damage' indicates damage
caused to a party in contradistinction to damage caused to the public at large.
But, as already stated, public nuisance has a closer nexus and a predominant
connection with environmental management and environmental law. There are
certain penal provisions with respect to public nuisance, which are more
deterrent than other civil remedies.
PENAL PROVISIONS WITH REGARD TO PUBLIC NUISANCE
INDIAN PENAL CODE
The Indian Penal Code, 1860 provides punishment for the offence of
committing a public nuisance. Section 268 states that, 'a person is guilty of
public nuisance who does any act or is guilty of any illegal omission which
causes any common injury, danger or annoyance to the public or 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. 13
A negligent act resulting in an infection that is dangerous to life14, and the acts
of adulteration of food, drinks and drugs15 are offences inviting punishment of a
varying nature. Contaminating the water of a public spring or reservoir to make
it unfit for ordinary use16, or poisoning the atmosphere to the detriment of
persons living in the neighborhood or passing along a public way17 are
punishable offences.
CODE OF CRIMINAL PROCEDURE
Under S. 133 of the Cr. PC, an executive magistrate can interfere and remove a
public nuisance in the first instance with a conditional order, and then with a
permanent one. This provision can be
13
Indian Penal Code 1860, Section 268
14
Ibid,Ss 269,270
15
Ibid,Ss 272-276
16
Ibid,Ss 277
17
Ibid, Ss 278
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utilized in the case of a public nuisance of an environmental nature. The
magistrate can adopt immediate measures to prevent danger or injury of a
serious nature to the public.
The court examined the scope of this provision in as early as 1926 in Deshi
Sugar Mill v. Tupsi Kahar18, where the sub-divisional magistrate shut down
two sugar mills in a locality because they were draining dirty and toxic water
into the river. On appeal, the Patna High Court held that S.133 of CrPC gave the
power to proceed against the discharge of effluents injurious to the health of the
community.
The decision of the Patna High Court was specific on the point that S. 133 of the
Code of Criminal Procedure could be used for preventing public nuisance
caused by pollution of [Link] discretion to decide what type, or quantum of
evidence should support this decision, is left to the magistrate. The law of public
nuisance as laid down in Section 133 is equally applicable to noise pollution as
well. In Raghunandan v. Emperor19, the Allahabad High Court upheld the
order of a magistrate forbidding a factory owner from operating his factory
engines from 9pm to Sam on the ground that it was injurious to the physical
health of the communitv. The court held that nuisance of such a nature would
undoubtedly affect those living in the neighborhood of a factory, and would be a
matter attracting attention under S. 133 of CrPC.
However, the courts have at times tried to narrow down the scope of S. 133 to
include only actual nuisance and not to extend to the cases of potential nuisance.
But in recent times, the scenario is totally different. Consequences of a possible
environmental catastrophe are of such unpredictable quickness and magnitude
that prevention rather than cure should be the best environmental policy. Section
133 of CrPC does not show that it is applicable only to actual nuisance. If
preventive action can be taken when the construction of a building or the
condition of a tree is likely to be dangerous to the public, there is no reason why
such preventive action is not allowed in all types of public nuisance.
18
AIR 1926 Pat .506
19
AIR 1931 All 433
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JUDICIAL ACTIVISM AND S. 133 OF CODE OF CRIMINAL
PROCEDURE
In 1979, the Supreme Court of India has captured the potential parameters of the
law of nuisance in CrPC as a remedy for environmental assaults in Govind
Singh v. Shanti Swaroop"20, where the nuisance caused was due to smoke
emanating from a bakery. The magistrate made an order for the demolition of
the oven and the chimney, and later directed the baker to wind up his business
from the site. The SC, on an SLP, noted that the evidence disclosed the emission
of smoke injurious to the health and physical comfort of the people living or
working in the proximity of the appellant's bakery. The court observed that, in
cases where safety and convenience of the public at large is involved, it would
be a safer recourse to order the appellant to not use the oven and the chimney at
all during a particular period.
A landmark decision in this respect is Municipal Council Ratlam v.
Vardhichand21', where the residents in the Ratlam municipality were suffering
for a long time from pungent smell emanating from open drains, which was
caused by public excretion in slums and liquid flowing in the streets from the
distilleries. Instead of complying with the order of the magistrate remove the
drain within a 6 month time period, the municipal council challenged the
[Link] apex court held that local bodies had a certain responsibility
towards protection of environment and developed the law of public nuisance in
the CrPC as a potent instrument for enforcement of their duties.
It was held that when an order is given under S. 133, the municipality cannot
take the plea that notwithstanding public nuisance, its financial liability validly
exonerated it from the [Link] CrPC operates against statutory bodies and
agencies regardless of the cash in their coffers. because human rights have to be
respected by the state irrespective of budgetary provisions. The court was of the
view that statutory agencies should not defy their duty by urging in self-defence,
a self-created budget of perverted expenditure budget. It was also observed that
the processes envisaged under Section 133 have a social justice component. The
remedies available and the powers exercisable are conducive to the demands of
rules of law necessitated by the conditions of developing countries.22
20
AIR 1979 SC 143
21
AIR 1980 SC 1622
22
Municipal Council Ratlam [Link] , AIR 1980 SC 1622
11
The verdict in Ratlam case is a significant milestone in the path of
environmental protection. It has served to offset the insufficiency of the legal
mechanism and enforcement not only in the laws governing the local bodies, but
also in environmental legislations such as Water Act, Air Act and EPA. It has
widened the scope and amplitude of the jurisdiction of magistrate under S.133
of CrPC. Besides being a useful antidote to the crisis of sanitary environment
management in the Indian scenario, it lays down basic guidelines in determining
the primary responsibilities of local bodies and industries and points towards the
accountability of both public and private agencies in a welfare state.23
This case has remarkably influenced later judicial pronouncements. In a case
where the complaint by a lady whose husband was a heart patient and could not
sleep because of the noise and air pollution from a glucose saline manufacturing
company in that residential area, the magistrate ordered to close down the
factory, which was upheld by the Madhya Pradesh High Court24 In another case
where working of fodder cutting machines caused noise and offensive smell.
Sand laden winds carried the fodder particles to a nearby residential colony, due
to which people could not sleep or sun-dry their clothes. The Rajasthan High
Court held that all this caused public nuisance justifying the verdict of the
magistrate25
CONCLUSION
Nuisance, therefore, can be an effective remedy against environmental
pollution. It can be anything that disturbs the peaceful living of a person in a
society, from smoke, noise, dust, garbage, effluents to water, gas, heat,
vibrations, disease, germs, etc. it can be either private or public. Though private
nuisance is as important a consideration as public nuisance, but public nuisance
has a closer nexus with environmental law. Law also provides for certain penal
provisions to control public nuisance.
Environmental nuisance is to be dealt by the local authorities through the help
of statutory powers. Such powers include licensing schemes or enforcement
23
P. Leelakrishnan, Public Nuisance and Civil Remedies,Environmental Law in India, LexisNexis, 3rd
ed., 20
24
Krishna Gopal [Link] of Madhya Pradesh, (1986) CrLJ 396)
25
Himmant Singh v Bhagwana(1988)
12
notices. The strategy which is appointed by the local authorities in dealing with
such offence is by discussing the problem with the person responsible for such
offense before issuing enforcement notice.
Thus, after the analysis of above cases, we find that, the Supreme Court is, at
the present time, stretching the different legal provisions for environmental
protection. In this way, the judiciary tries to fill in the gaps where there is
laciness of the legislation. These new innovations and developments in India by
the judicial activism open the numerous approaches to help the country. In
India, the courts are extremely cognizant and cautious about the special nature
of environmental rights, considering that the loss of natural resources can't be
renewed.
BIBLIOGRAPHY
BOOKS
P. Leelakrishnan, Public Nuisance and Civil Remedies, Environmental
Law in India, LexisNexis, 3rd ed., 2008.
S.C. Shastri, Environmental Pollution and Control under Other Laws,
Environmental Law, Eastern Book Company, 5th ed, 2015.
Pollock on Torts, 15th Ed
Winfield on Tort, 7" ed
STATUTES
Indian Penal Code, 1860
Code of Criminal Procedure, 1973
WEB SOURCES
Abhishek Narula, The concept of nuisance in tort law
[Link]
Ajay Shaw, India, [Link]
chapter24_india.pdf
13
Atisha Sisodiya, Role of Indian Judiciary in protection of Environment in
India,
[Link]
vironment-india/
• Ranjit Singh, Legal Control of Noise Pollution in India: A Critical
Evaluation,
[Link]
• K. Rama Joga Rao, Use of Criminal Machinery for Environmental
Protection,
[Link]
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