DR.

RAM MAHOHAR LOHIYA NATIONAL

LAW UNIVERSITY
2020-2021

SUBJECT: LAW OF TORTS

PROJECT ON: “TORT OF NUISANCE”

SUBMITTED BY: ANUSHKA VERMA SUBMITTED TO: DR. ANKITA YADAV

ENROLLMENT NO:200101034 ASSISTANT PROFESSSOR ( LAW )

SEMESTER: SECOND RMLNLU LUCKNOW

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 DECLARATION

I hereby declare that the project work entitled “Tort of Nuisance ” submitted to the Dr. Ram
Manohar Lohiya National Law University, Lucknow is a record of an original work done by me
under the guidance of Dr. Ankita Yadav, Assistant Professor, Law, RMLNLU and this project
work is submitted in the partial fulfillment of the requirements for the award of the degree of
B.A. LLB. (Hons.)

The results embodied in this thesis have not been submitted to any other University or Institute
for the award of any degree or diploma.

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 ACKNOWLEDGEMENT

In the accomplishment of this project successfully, many people have best owned upon me their
blessings and the heart pledged support, this time I am utilizing to thank all the people who have
been concerned with this project.

Primarily, I would like to thank god for being able to complete this project successfully. Then I
would like to express my special thanks of gratitude to my Psychology professor “ Dr. Ankita
Yadav ” for her kind guidance and for clearing all the doubts and technicalities that I came up
with during the making of this project.

I take this opportunity to express my profound gratitude and deep regards to hon’ble vice
chancellor “ Prof. Subir. K . Bhatnagar “ and Dr. Ram Manohar Lohiya National Law University
for giving me this enriching opportunity to research and work on this topic.

This project would not have seen the light of the day without the constant direction and guidance
of my parents and guardians to whom I owe a lot. Last but not the least I would like to thank my
fellowmates and seniors who aided me along the way of making of this project.

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 TABLE OF CONTENTS

 RESEARCH METHODOLOGY…………………………………………………5
 INTRODUCTION…………………………………………………………………....5
 Definition by Different Jurists……………………………………..………....5
 Distinction between Nuisance and Trespass…………..……………………..6
 ESSENTIALS OF NUISANCE…………………………..…………………….…..6
 KINDS OF NUISANCE………………………………………….………………..7
 Public Nuisance.……..……………………………………………………....7
 Private Nuisance………………….…………………………………………..8
 DEFENCES TO NUISANCE …………………………………….……………….11
 REMEDIES FOR NUISANCE……………………………………………………..13
 CONCLUSION……………………………………………………………………….14
 REFERENCES…………………………………………………………………….….15

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 RESEARCH METHODOLOGY
The source material for the study is basically collected from the secondary sources. Relevant
statues, case-laws, and articles published in journals, judgments of Supreme Court, newspaper
articles, blogs and other sources were used in making of this project.

INTRODUCTION
The word “nuisance” springs from the French word “nuire”, which suggests “to do hurt, or to
annoy”. Nuisance as a tort means unlawful interference with a person’s use or enjoyment of land,
or some right over or in connection with it. Acts interfering with comfort, health or safety are
examples of it. The interference may be in anyways e.g., noise, vibrations, heat, smoke, smell,
fumes, electricity, excavation or disease causing germs.

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 along with his use or
enjoyment of that property or of some right over, or in reference to it, we may say that tort of
nuisance occurred.

This project aims to discuss about tort of nuisance in detail including it’s definition by different
Jurists, it’s types, essentials that constitute nuisance, defences to nuisance and remedies for
nuisance. I would be relying on different cases to explain each of them in detail.

DEFINITION BY DIFFERENT JURISTS:

According to Stephen, nuisance is anything done to the hurt or annoyance of the tenements of
another, or of the lands, one which doesn’t amount to trespass.

According to Salmond, nuisance consists in causing or allowing to cause without lawful

justification, the escape of any deleterious thing from one’s land or from anywhere into land in
possession of the plaintiff, such as water, smoke, gas, heat, electricity, etc.

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According to Pollock, “ Nuisance is the wrong done to a man by unlawfully disturbing him in
the enjoyment of his property, or in some cases, in exercise of common right.”

Winfield defined nuisance as “Nuisance may be described as unlawful interference with a

persons use or enjoyment of land or of some right over or in connection with it.”

DISTINCTION BETWEEN NUISANCE AND TRESPASS:

 Trespass is direct physical interference with the plaintiff’s possession of land through
some material or tangible object while nuisance is an injury to some right accessory to
possession but no possession itself. E.g. a right of way or light is an incorporeal right
over property not amounting to possession of it, and hence disturbance of it's a nuisance
and not trespass.
 If interference is direct, the wrong is trespass, if it is consequential, it amounts to
nuisance. Planting a tree on another ’ s land is trespass, but when a person plants a tree
over his own land and the roots or branches project into or over the land of another
person then it amounts to nuisance.
 In trespass, interference is always through some material or tangible objects or material
ones whereas in nuisance, interference can be committed through the medium of
intangible objects.
 A trespass is actionable per se but in an action for nuisance, action for damages got to be
proved.

ESSENTIALS OF NUISANCE

For making an act of Nuisance actionable under the law of torts the following essentials must be
satisfied-
 Wrongful Act by the Defendant:

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 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.

 Damage/Loss/Inconvenience 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. In Ushaben v. Bhagyalaxmi Chitra Mandir , AIR 1978
Guj 13, the plaintiffs’ appellants sued the defendants-respondents for a final injunction to
restrain them from exhibiting the film “Jai Santoshi Maa”. It absolutely 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 non-secular feelings wasn't an actionable wrong.
Moreover, the plaintiff is free to not see the movie.

KINDS OF NUISANCE
Nuisance as a tort is further categorized into two types-

 Private Nuisance
 Public Nuisance

PUBLIC NUISANCE:
Public Nuisance is also known as Common Nuisance. Public Nuisance is interference with the
rights of public in general and is punishable as an offence. For example obstructing a public way
by digging a trench, or constructing structures on it are simply public nuisance. Thus, acts which
seriously interfere with the health, safety, comfort or convenience of the general public generally
or which tend to degrade public morals have always been considered nuisance.

Section 268 of the Indian legal code, defines it as “an act or illegal omission which causes any

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common injury, danger or annoyance, to the people generally who dwell, or occupy property,
within the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to
persons who may have occasion to use any public right.”
A nuisance that affects a class or a segment of a society is public nuisance and whether the
number of persons affected is sufficient to merit public nuisance is a question of facts depending
on the facts and circumstances of each case. Everything is to be looked at from a reasonable
point of view.
In Dr. Ram Raj Singh v. Babulal, the defendant had constructed a brick grinding machine
adjoining the premises of plaintiff who was a medical practitioner. Special damages were given
to the plaintiff and injunction was issued against the defendant as court held that damage had
been caused to the plaintiff and his patients due to the dust produced by the grinding machine.
In Malton Board of Health v. Malton Manure Co., (1879) it was held that public nuisance can
only be subject of one action, otherwise a celebration can be ruined by 1,000,000 suits. Further,
it might make to multiplicity of litigation leading to burdening the scheme. Generally speaking,
nuisance isn't a tort and thus doesn't make to legal action.
If the plaintiff cannot prove that he has suffered any special damages, that is, more damage than
suffered by other members of the public, he cannot claim compensation for the same. This can be
explained by the case of Winterbottom v. Lord Derby.
In the following circumstances, a private may have a non-public right of action in respect a
nuisance.
1. He must show a specific injury to himself beyond that which is suffered by the remainder of
public i.e. he must show that he has suffered some damage quite what the final body of the
general 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 considerable character, not fleeting or evanescent.

PRIVATE NUISANCE:
Private Nuisance is also known as Tort of Nuisance. Private nuisance is that the using or
authorizing the utilization of one’s property, or of anything under one’s control, so on injuriously
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affect an owner or occupier of property by physically injuring his property or affecting its
enjoyment by interfering materially together with his health, comfort or convenience. In contrast
to nuisance, nuisance is an act affecting some particular individual or individuals as
distinguished from the general public at large. The remedy in an action for personal nuisance
could be a legal action for damages or an injunction or both and not an indictment.

ESSENTIALS OF PRIVATE NUISANCE:

To constitute the tort of Nuisance, the following essentials are required to be proved.

1. Unreasonable Interference
2. Interference with the use or enjoyment of land.
3. Damage

 UNREASONABLE INTERFERENCE-

 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. In the case of Sedleigh Denfield v. O’ Callghan
(1940), it was stated that “ A balance has to be maintained between the right of the
occupier between what he likes and rights of his neighbor not to be interfered with.
 In Radhey Shyam v. Gur Prasad, it was held that substantial addition to the noise in a
noisy locality, by the running of the impugned machines would seriously interfered with
the physical discomfort of the plaintiffs and it amounted to nuisance, hence plaintiffs
were entitled to injunction against the defendants.
 In J Chandresekaran v. V.D.Kesavan., the defendant fixed electric meters on the walls of
the plaintiff and acquiesced to it. Holding the fixtures necessarily mounting to nuisance,
the Madras High Court said that any length of period of such use by the defendant would
not ensure the benefit of user concerned unless specifically law enabled him to do so.
 An act which is otherwise reasonable does not become unreasonable or actionable even
though the damage done is substantial, if the act is caused solely due to the sensitiveness
of the plaintiff or the use to which he puts his property.
 In Mayor of Bradford Corp. v. Pickles, the house of Lords held that if an act is otherwise
lawful, it does not become unlawful merely because it was done with an evil motive. It is
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 the act not the motive for the act which is regarded. However if the act if the act of the
defendant which was done by an evil motive becomes an unreasonable interference then
it becomes actionable.

 INTERFERENCE WITH THE USE OR ENJOYMENT OF LAND-

Interference may cause either

 Injury to the property itself.
 An unauthorized interference with the use of property of another person
through some object, tangible or intangible which causes damage to the
property is actionable as nuisance.
 A person has a natural right to have his land supported by his neighbours and
therefore removal of support, lateral or from beneath is a nuisance if a
substantial damage has occurred due to the removal of that support. This right
is available only on lands without buildings.
 When there is a substantial infringement of an easement of light and air , the
same is actionable by an action for damages according to Section 33 of Indian
Easements Act.
 Injury to comfort or health of occupants of certain property.
 Substantial interference with the comfort and convenience in using the
premises is actionable as a nuisance.
 Reasonable interference incidental to the lawful carrying on of trade is not an
actionable nuisance.
 The discomfort should be such as an ordinary or average person in the locality
and environment would not put up with or tolerate.
 Following factors are material in deciding whether the discomfort is
substantial:
1. its degree or intensity
2. its duration
3. its locality

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  DAMAGE-

 In private nuisance, although damage is one of the essentials, the law will often
presume it. In Fay v. Prentice, fall of rain water was presumed into the plaintiff’s
garden because the cornice of the defendant’s house projected over the plaintiff’s
garden. Nuisance was proved.
 In Barber v. Penley., due to the considerable queues at the defendant’s theatre,
access to the plaintiff’s premises were obstructed and this obstruction was
considered as a nuisance by the courts.
 As regards projections on the highways, no nuisance can be brought for those
projections unless some damage is caused thereby.

DEFENCES TO NUISANCE

Following are the valid defences to an action for nuisance

It is a legitimate 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 an individual claims anything,
because he, his ancestors, or they whose estate he hath, have had possession for the number
prescribed by law. this could be there in Section 2610, Limitation Act & Section 15 Easements
Act.
Three things are necessary to work out a right by prescription:
1. Use and occupation or enjoyment;
2. The identity of the thing enjoyed;
3. That it should be averse to the rights of another person.

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A special defence available within 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 existing for twenty years prescriptive right to continue
it's acquired as an easement appurtenant to the land on which it exists. On the expiration of this
era the nuisance becomes legalised initially, 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 rationale
behind the nuisance began but from the day when the nuisance began.

 STATUTORY AUTHORITY-
Where a statute has authorised the doing of a specific act or the use of land during a specific way,
all remedies whether by way of indictment or action, are taken away; as long as every reasonable
precaution keep with the exercise of the statutory powers has been taken. Statutory authority
could even be either absolute or conditional.
In case of absolute authority, the statute allows the act notwithstanding the actual fact that it must
necessarily cause a nuisance or the opposite reasonably injury.
In case of conditional authority, the State allows the act to be done providing it's without causing
nuisance or the opposite reasonably injury, and thus it demands the exercise of due care and
caution and due regard for private rights.
In Vaughan v. Taff Vale Rly11 (1860) 5 H.N. 679, The defendants who had authority by Statute
to locomotive engines on their railway, were held to not blame for a hearth caused by the escape
of sparks.
In a suit for nuisance it's no defence:
1. Plaintiff came to the nuisance: E.g. if an individual knowingly purchases an estate in close
proximity to a smelting works his remedy, for a nuisance created by fumes issuing therefrom
isn't affected. it is not valid defence to say that the plaintiff came to the nuisance.
2. Within the case of constant nuisance, it's no defence that each one possible care and skill are
being employed to prevent the operation complained of from amounting to a nuisance. In an
action for nuisance it's no answer to say that the defendant has done everything in his power to
prevent its
existence.
3. It's no defence that the defendant’s operations wouldn't alone mount to nuisance. E.g. the other
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factories contribute to the smoke complained of.
4. It's no defence that the defendant is just making a reasonable use of his own property. No use
of property is affordable which causes substantial discomfort to other persons.
5. That the nuisance complained of although causes damages to the plaintiff as a personal,
confers a benefit on the final public at large. A nuisance could even be the inevitable results of
some or other operation that's of undoubted public benefit, but it's an actionable nuisance
nonetheless. No consideration of service should deprive a personal of his legal rights without
compensation.
6. That the place from which the nuisance proceeds is that the sole place suitable for carrying on
the operation complained of. If no place is found where such a business won't cause a nuisance,
then it cannot be disbursed the smallest amount bit, except with the consent or acquiescence of
adjoining proprietors or under statutory sanction.

REMEDIES FOR NUISANCE

The remedies available for nuisance are as follows:

❖ Injunction
It may be 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 favours and is not usually

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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 Indian courts have borrowed quite a lot
from the English principles as well as from the decisions of the common law along with creating
their own precedents. However, it has also amended and modified various aspects of
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 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. 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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 REFERENCES

 Nuisance | law. Encyclopedia Britannica. (2008). Retrieved from

https://www.britannica.com/topic/nuisance.

 Das, Tanya. (n.d.). “Nuisance: A Tort”, Retrieved July 14, 2021 from
http://www.legalservicesindia.com/article/825/Nuisance:-A-Tort.html

 Joshi, Krishnendra. (2020, May 19), “The Tort of Nuisance”,

https://blog.ipleaders.in/the-tort-of-nuisance/

 Winfield, P. (1931). Nuisance as a Tort. The Cambridge Law Journal, 4(2), 189-206.
Retrieved from www.jstor.org/stable/4502514

 Singh, D. (2015). Types Nuisance and Its Remedies. TaxGuru. Retrieved from
https://taxguru.in/corporate-law/types-nuisance-remedies.html.

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