PUBLIC NUISANCE
PUBLIC NUISANCE
Author : Monalisha Singh
A person in possession of a property is entitled to its undisturbed enjoyment as per law. However, if someone else’s improper use or enjoyment in his property finishes up resulting into an unlawful interference together with his enjoyment or use of that property or of a number of the rights over it, or in reference to it, we will say that the tort of nuisance has occurred. The word “nuisance” has been derived from the Old French word “nuire” which suggests “to cause harm, or to harm, or to annoy”. The Latin word for nuisance is “nocere” which suggests “to cause harm”.
Kinds of Nuisance
1. Public nuisance
The Indian legal code defines nuisance as an act which causes any common injury, danger or annoyance, to the people generally who dwell or occupy the property, within the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to the people that may have occasion to use any public right. Public nuisance affects the society and therefore the people living in it at large or some considerable portion of the society and it affects the rights which the members of the society might enjoy over the property. The acts which seriously affects or interferes with the health, safety or comfort of the overall public may be a common nuisance.
Instances where a personal may have a private right of action in reference to a public nuisance:
He must show the existence of any personal injury which is of a better degree than the remainder of the general public. Such an injury has got to be direct and not just a consequential injury. The injury must be shown to possess an enormous effect.
2. Private nuisance
Private Nuisance is that sort of nuisance during which a person’s use or enjoyment of his property is ruined by another. It’s going to also injuriously affect the owner of the property by physically injuring his property or by affecting the enjoyment of the property. Unlike common nuisance, privately nuisance, an individual’s usage or enjoyment of property is ruined as distinguished from the general public or society at large. The remedy for personal nuisance may be a legal action for damages or an injunction or both.
Elements which constitute a personal nuisance
The interference must be unreasonable or unlawful. It’s meant that the act shouldn’t be justifiable within the eyes of the law and will be by an act which no reasonable man would do. Such interference has got to be with the utilization or enjoyment of land, or of some rights over the property, or it should be in reference to the property or physical discomfort. There should be plausible damage to the property or with the enjoyment of the property so as to constitute a personal nuisance.
Case Law: Rose v. Miles(1815) 4M &S. 101
The defendant had wrongfully obstructed a public navigable creek which obstructed the defendant from transporting his goods through the creek thanks to which he had to move his good through land due to which he suffered extra costs within the transportation. It had been held that the act of the defendant had caused a common nuisance because the plaintiff successfully proved that he had incurred loss over other members of the society and this he had a right of action against the defendant. A nuisance could also be in respect of either property or physical discomfort
1. Property
In the case of a nuisance with reference to the property, any sensible injury to the property is going to 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. The usage by the third party should be of out of the natural course of enjoyment from one party.
Interfering with the standard conduct of human existence
The discomfort should be of such a degree that it might affect a private within the locality and other people wouldn’t be ready to put up or tolerate with the enjoyment.
Case Law: Radhey Shyam v. Gur Prasad AIR 1978 All 86
Mr Gur Prasad Saxena and another filed a suit against Mr Radhey Shyam and five other individuals for final injunction restraining the defendant from installing and running a mill within the premises occupied by the defendant. Gur Prasad Saxena filed another suit against Radhey Shyam and five other individuals for a final injunction from running and continuing to run an oil expeller plant. The plaintiff has alleged that the mill was causing tons of noise which successively was affecting the health of the plaintiff. it had been held that by running a mill during a residential district , the defendant was causing a nuisance to the plaintiff and affecting his health severely.
What are the defences available to Nuisance?
There are many valid defences available to an action for tort, these are:
1. Prescription
A prescription may be a title acquired by use and time and which is allowed by the law, an individual claims any property because his ancestors have had the possession of the property by law. Prescription may be a special quite defence, as, if a nuisance has been peacefully and openly been happening with none quite interruption then the defence of prescription is out there 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 restrictions act and Section 15 of the Easements Act.
There are three essentials to determine a person’s right by prescription, these are
Use or enjoyment of the property: the utilization or enjoyment of the property must be acquired by the individual by law and therefore the use or enjoyment must be done openly and peacefully.
Identity of the thing/property enjoyed: The individual should remember of the identity of thing or property which he or she is peacefully or publically enjoying.
It should be unfavourable to the rights of another individual: the utilization 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 a minimum of twenty years.
2. Statutory authority
When a statute authorises the doing of a specific act or the utilization of land during a way, all the remedies whether by action or indictment or charge, are removed as long as every necessary reasonable precaution has been taken. The statutory authority could also be either absolute or conditional. When there’s an absolute authority, the statue allows the act and it’s not necessary that the act must cause a nuisance or the other sort of injury. Whereas within the case where there’s a conditional authority, the state allows the act to be done as long as it are often avoided any causation of nuisance or the other sort of injury.
What are the remedies for nuisance?
There are three sorts of remedies available within the case of a nuisance, these are:
1. Injunction
An injunction may be a judicial order restraining an individual from doing or continuing an act which could be threatening or invading the legal rights of another. It’s going to be within the sort of a short lived injunction which is granted on for a limited period of your time which can get reversed or confirmed. If it’s confirmed, then it takes the shape of a final injunction.
2. Damages
The damages could also be offered in terms of compensation to the aggrieved party, these might be damages. The damages to be paid to the aggrieved party is set by the statue and therefore the purpose of the damages isn’t just compensating the individual who has suffered but also making the defendant realise his mistakes and deter him from repeating an equivalent wrong done by him.
3. Abatement
Abatement of nuisance means the removal of a nuisance by the party who has suffered, with none legal proceedings. This type of remedy isn’t favoured by the law. This privilege must be exercised within an inexpensive time and typically requires notice to the defendant and his failure to act. Reasonable for could also be wont to employ the abatement, and therefore the plaintiff are going to be liable if his actions transcend reasonable measures.
Example: Ace and Beck are neighbours, Beck features a poisonous tree on his land which overtime outgrows and reaches the land of Ace. Now Ace has every right to chop that a part of the tree which is affect his enjoyment of his land with prior notice to Beck. But if Ace goes to Beck, land without his permission, and chops off the whole tree which then falls on the land of Beck, then Ace shall be within the wrong here as his action taken would be beyond reasonableness.
