NUISANCE: A TORT

    Edited by: Vaani Garg

    Nuisance

    The word “nuisance” is derived from the French word “nuire”, which means “to do hurt, or to annoy”. If one is in possession of a property, another can’t claim his right over it, improper use of the owner’s property results in an unlawful interference with his use or enjoyment of that property or of some right over, and we may say that tort of nuisance occurred. In other words, nuisance is an unreasonably interfering with a person’s right over, and his connection with, his property or land. It may be caused in various ways such as the causing of unnecessary noise, heat, smoke, smell, and other such disturbing activities.

    Essentials of Nuisance:

    1) Wrongful acts: Any act which is done with the intention to cause the infringement of the legal rights of another is considered to be a wrongful act.

    2) Damage/ loss/ inconvenience/ annoyance caused to another: Inconvenience or discomfort to be considered more than mere delicacy and producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material.

    Kinds of Nuisance:

    1. Public Nuisance:

    The Section 268 of  Indian Penal code defines nuisance as an act which causes any common injury, danger or annoyance, to the people in general who dwell or occupy the property, in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to the people who may have occasion to use any public right.

    Public nuisance disturbs the society and the people living in it at large, or some significant portion of the society and it affects the rights of the members of the society. The acts which grievously affect  the health, safety or comfort of the general public is a public nuisance.

    Special Damage Exception to the No Private Action Rule:

    1) The plaintiff must prove that he has suffered more damages than suffered by the public at large.

    2) Injury has to be direct and not just a consequential injury.

    3) The injury must be substantial.

    2. Private Nuisance:

    Private Nuisance is that kind of nuisance in which a person’s use or enjoyment of his property is injured by another. It may also harm the owner of the property by physically injuring his property or by affecting the enjoyment of the property. The remedy for private nuisance is a civil action for damages or an injunction or both.

    Elements which constitute 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.

    2) Interference should 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.

    A nuisance may be in respect of either property or physical discomfort

    (i)  Property:

    In the case of a nuisance with respect to the property, any unreasonable injury to the property will be sufficient to support an action for the damages.

    (ii) Physical discomfort:

    In a suit of nuisance resulting out of physical discomfort, there are two essential conditions required-

    (1) In surfeit of the natural and ordinary course of enjoyment of the property.

    The usage by the third party should be out of the natural course of enjoyment from one party.

    (2) 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  tolerate the enjoyment.

    Defenses of Nuisance:

    1. Prescription:

    A prescription is a title obtained by use and time, which is allowed by the law, a person claims any property because his ancestors have had the possession of the property by law.

    Prescription is a special kind of defence, as, if a nuisance has been peacefully  going on without any kind of interruption then the defence of prescription is accessible to the party. On the expiration of this term of twenty years, the nuisance becomes legalised as if it had been authorised in its commencement by a grant from the owner of the land.

    The essence of prescription is explained in Section 26 of the limitations act and Section 15 of the Easements Act.

     Essentials of prescription:

    (i) Use or enjoyment of the property: The use or enjoyment of the property must be obtained by the individual by law and the use or enjoyment must be done openly and peacefully.

    (ii) Identity of the thing/property enjoyed: The individual should be knowledgeable of the identity of the thing or property which he or she is peacefully or publically enjoying.

    (iii) It should affect the rights of another individual: The use or enjoyment of the thing or property should be of such a nature that it should be affecting the rights of another individual thus causing a nuisance and even after knowing of such a nuisance being caused there must’ve been no action taken against the person causing it for at least twenty years.

    2. Statutory authority:

    When a statute legitimizes the doing of a particular act or the use of land in a way, all the remedies whether by action or indictment, are taken away. Provided that every obligatory sensible precaution has been taken.The statutory authority may be either absolute or conditional.When there is an absolute authority, the statue allows the act and it is not obligatory that the act must cause a nuisance or any  injury.Whereas in the case where there is a conditional authority, the state allows the act to be done only if it can be done without any causation of nuisance or any injury.

    Remedies for Nuisance:

    1. Injunction:

    An injunction is a judicial order restraining a person from doing  an act which might be threatening or infringing the legal rights of another. It may be in the form of a temporary injunction which is granted on for a limited period of time which may get reversed or confirmed. If it is confirmed, then it takes the form of a permanent injunction.

    2. Damages:

    The damages may be offered in terms of compensation to the aggrieved party, these could be nominal damages. The damages to be paid to the aggrieved party is decided by the statute and the purpose of the damages is not just compensating the individual who has suffered but also making the defendant realise his mistakes and deter him from repeating the same wrong done by him.

    3. Abatement:

    Abatement of nuisance means the removal of a nuisance by the party who has suffered, without any legal proceedings. This kind of remedy is not favoured by the law. But is available under certain circumstances.

    This privilege must be exercised within a reasonable time and usually requires notice to the defendant and his failure to act. Reasonable for may be used to employ the abatement, and the plaintiff will be liable if his actions go beyond reasonable measures.