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Nuisance as a Tort


In tort law, Nuisance means unlawful interference with a person’s use or enjoyment of land or some other right in connection with it. There are two types of nuisance: Public & Private.

Types of Nuisance:

Nuisances may be divided into two main headings namely, (i) private nuisances and (ii) public nuisances. This division is not exhaustive, and to some extent overlap with each other; for the same act may often cause a public nuisance and also cause special damage to individuals

  1. Public Nuisance: It is the interference with the rights of public at large in general and it is a punishable offence as per section 268 of the Indian Penal Code. A person is guilty of a public nuisance who does any act or is guilty of an 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.
  2. Private Nuisance: Private nuisance is the using or authorizing 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.

Essential Requirements: To constitute a tort of nuisance the following essentials are required to be proved:

Wrongful Act by the Defendant: for the action against nuisance to arise the first essentiality is the conduct of a wrongful act by the defendant. This includes interference. The interference must be unreasonable or unlawful. 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. Such interference has to 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. There should be visible damage to the property or with the enjoyment of the property.

However, If the plaintiff is extra sensitive and finds the action of the defendant to be unreasonable due to his sensitivity, which otherwise is reasonable as per a prudent man, the action for nuisance cannot arise.

Damage/Loss/Inconvenience caused to the plaintiff. The next essentiality requires a substantive damage or inconvenience to be caused to the plaintiff. It 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 right of the plaintiff, nuisance comes into play.

Case Law: In Ushaben V. Bhagyalaxmi Chitra Mandir, where the Plaintiff sued the Defendant against the screening of the movie “Jai Santoshi Maa” claiming that it hurts the Religious sentiments of a particular Hindu community, the court dismissed the Plea stating that hurt to religious feeling was not an actionable wrong and the Plaintiff is free to not watch the Movie again. Hence it was held that in order to claim damages for Nuisance, the interference should be in a state of continuing wrong.


Effectual Defences:

  • Prescriptive right to commit nuisance: The right to do something which would otherwise constitute private nuisance may be acquired an easement by prescription. A right to continue a nuisance can be acquired by prescription if it has been peaceably enjoyed as a right, without interruption for 20 years.
  • Statutory authority: an act done under the authority of a statute is a complete defence.

Ineffectual Defences:

  • Nuisance due to the act of others: sometimes the act of two or more persons acting independently of each other may cause nuisance altogether and the act of any one of them alone would not cause nuisance.
  • Public good: it is no defence to say that what is nuisance to a particular plaintiff is beneficial to the public in general otherwise no public utility undertaking could be held liable for unlawful interference with the right of individuals.
  • Reasonable care: use of reasonable care to prevent nuisance is generally no defence.
  • Plaintiff coming to nuisance: A person cannot be expected to refrain from buying a land on which a nuisance already exists, and the plaintiff cannot recover even if the nuisance has been going on long before he went to that place. So, it is no defence that the plaintiff himself came to the place of nuisance.

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