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The common law can be construed to recognise nuisance under the legal maxim 'Ubi Jus lbi Remedium', which asserts that wherever a right exists, a commensurate remedy should be offered if that right is infringed. Nuisance as a tort in India is largely predicated on the countless cases interpreted by English courts and the work of many eminent jurists. Nuisance has now evolved to the point where it has become a part of the rule of law as a result of various judicial precedents.

“Nuisance is an unlawful interference with a person’s use and enjoyment of land, or of some right over, or in connection with it. Hence it is an injury or inconvenience faced by a person in the use of his property because of another person who unreasonably uses his own property in a way which negatively affects the former”- Birmingham

Nuisance, as recognized by tort law, emanates from the notion that everyone has the right to peacefully enjoy their property. In that respect, the right to not be disturbed might be construed as an extension of one's right over his or her property, since the common law provides the right to unencumbered enjoyment of one's property. The law provides a platform for civil relief where such interference transpires, provided that the interference is unlawful/unwarranted/unreasonable.

Nuisance can be classified into two categories: Private Nuisance and Public Nuisance

Private nuisance involves all those cases where a plaintiff has a particular and personal interest over the enjoyment of property. The nuisance is attributed to this private capacity of the plaintiff and thus the property in question cannot include any public property. The elements which need to be established to constitute a claim for action under the tort law includes:

1. Proof of actual damage to the plaintiff’s property or with reference to a physical discomfort

In the case of property, a claim of action simply be initiated on the proof of a certain damage to the property with respect to its enjoyment. However, if the plaintiff wishes to claim remedy for nuisance with reference to a physical discomfort caused to him by the actions of the defendant, the plaintiff bears the burden of proof to establish the

Lucid interference of the defendant in the ordinary enjoyment in the regular conduct of his/her life.

This means that the plaintiff has to prove that any prudent and rational person, in the same situation of the plaintiff will face the same discomfort due to the defendant’s conduct. The defendant cannot be held liable if the discomfort is specific only to the plaintiff by virtue of his/her peculiar condition. The dictum "De minimis non curat lex" comes into play, which states that the court will not recognize peculiarities and minor injuries claimed by the plaintiff attributable to his own sensitivity.

The court denied the plea in Ushaben V. Bhagyalaxmi Chitra Mandir[1], where the Plaintiff sued the Defendant over the broadcast of the film "Jai Santoshi Maa," claiming that it wounds the religious values of a certain Hindu community. The court held that hurting the religious sentiments of a particular community does not constitute nuisance . Furthermore, the court held that the particular discomfort should extend over a period of time, and not just be a one-time offence. The constitute as nuisance the disturbance should persist over a certain period of time.

In the case of Halsey v. Esso Petroleum Co. Ltd[2], where the defendant's factory emitted smokes, oil, fumes, and foul odour, polluting the environment and adversely affecting the plaintiff's health due to his own exceptional health condition, the defendant was only held liable for the pollution of the environment and not for the plaintiff's health damage.

In abundance of the property's natural and common pattern of enjoyment This means that the defendants conduct should be in contrary to the natural enjoyment of prudent man and not any special type of enjoyment.

2. The conduct of the defendant should amount to an unlawful/unreasonable interference This means that the defendant should not have a sufficient lawful justification for causing nuisance to the plaintiff

While seeking remedy for private nuisance the plaintiff can claim remedies in the form of injunction (permanent or temporary) and damages (in the form of monetary compensation. In rare instances the court may also recognize and legitimize an abatement by the plaintiff. This means that the court shall recognize any action taken by the plaintiff in response to the discomfort caused to him provided that he uses a reasonable force to counter the same.

Public nuisance is defined under the Indian Penal Code(1860) under Section 268 and not prima facie addressed as a tort . However individuals may have a private right of action in response to a public nuisance provided that :

• He establishes before the court that he has suffered a personal injury that is more severe than the general demographic(ie particularly affecting his interest in a public property)

• It is a direct injury rather than a resultant harm.

• It is demonstrated that the injury has a significant impact.

In Rose v. Miles[3]defendant had unjustly impeded a public navigable watercourse, preventing the defendant from shipping his products down the creek, forcing him to transit his goods through land, incurring additional transportation costs. The plaintiff successfully demonstrated that his actions had constituted a public nuisance, and that he had a right of action against the defendant since he had experienced a loss greater over the general public.

The plaintiff in Solatu v. De Held[4] lived adjacent to a Roman Catholic Chapel where the defendant was the priest. The bell was rung several times throughout the day and the plaintiff was granted an injunction because the ringing was deemed a public nuisance.Similiar principle was adopted by the Indian courts in Dr. Ram Raj Singh v. Babulal[5]

Suit for private nuisance can also arise without the existence of a proof of special damages from the part of the plaintiff, as provided under Section 91 of the civil procedural code. A civil Suit in respect of a public nuisance may be initiated without proof of a private interest ;

By the Advocate-General acting ex officio; or

By him at the instance of two or more persons or;

By two or more persons with the leave of the Court.

Defences against nuisance can be roughly classified as effective or ineffective.

Ineffective defences:

1. It is not a defence to claim that the defendant took reasonable precautions to avoid causing nuisance.

2. It is untenable to argue that the act of nuisance was committed with the larger public interest in mind. The courts have ruled that the defendant cannot justify his nuisance to any private party solely by balancing it against the interests of the broader public good

3. The defendant's assertion that the nuisance would not have occurred if not for the actions of the other joint tortfeasors is not a defence.

4. Claiming that it was the plaintiff's own fault that he found himself in a situation of gross nuisance is not a defence. This includes situations in which the plaintiff purchases a property understanding full well that he or she would not be able to enjoy it comfortably. This is due to the fact that each individual has a right to property and, as a result, a right to peacefully enjoy that property. The same was held in St Helens Smelting Co v Tipping[6]

Effective defences:

1. Prescription.

Section 26 of The Limitations Act (1963) and Section 15 of the Indian Easements Act

(1882) guarantees a prescriptive right of nuisance of an individual’s property. If the defendant has created nuisance to the plaintiff, continuously over a period of 20 years(without any interruption) and the plaintiff hasn’t complained about the same, then the defendant gains a prescriptive right to nuisance. After this period the plaintiff loses the right to seek remedies for Nuisance. After twenty years of continuous existence, a nuisance is granted a prescriptive right to continue as an easement attached to the property on which it exists. When this term expires, the nuisance becomes legalised ab inito, as if it had been authorised by the plaintiff .

Such a prescriptive right can be claimed only against a specific property and hence stands as a solid defence for private nuisance. Another pertinent thing to be noted is the fact that the time for prescriptive right is calculated , not from the day the cause of nuisance exists, but from the day the plaintiff recognized it to be nuisance.

In Sturges v. Bridgman[7], the defendant had employed a piece of specific heavy machinery for his business for more than 20 years and the plaintiff, a medical practitioner, built a consulting room adjacent to the defendant's residence only a few months before the current action and was subsequently severely agitated by the noise that the defendant's machinery produced.

The plaintiff filed a suit for nuisance and the defendant pleaded the defence of prescription. The court ruled in favour of the plaintiff and held that the defendant cannot claim prescription because time begins to run from the day the nuisance began, not from the day the cause of the nuisance began.

2. Statutory Authority

The defence entails determining whether parliament intended for the statute to enable acts that would otherwise be considered a nuisance under common law. The party asserting the purpose to take away a private right bears the burden of proof to demonstrate the intention in the legislation or under any authority.

In Allen v Gulf Oil Refining Ltd[8], the court held that the defence upheld the defence of statutory authority to legalize the emissions and noises arising from an oil refinery as it comes within the act of the parliament and backed by a Statute.

The Indian tort law system has enlarged its scope and made the claim for action in the claim of nuisance more comprehensive and reliable, based on several rulings.

[1] Ushaben V. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13. [2] Halsey v. Esso Petroleum Co. Ltd , [1961] 2 All ER 145. [3] Rose v. Miles, (1815) 4 M&S 101 [4] Solatu v. De Held, (1851) 2 Sim NS 133 [5] Dr. Ram Raj Singh v. Babulal, AIR 1982 All 285 [6] St Helens Smelting Co v Tipping ,[1865] UKHL J81. [7] Sturges v. Bridgman, (1879) LR 11 Ch D 852 [8] Allen v Gulf Oil Refining Ltd, [1981] AC 1001.

This article is written by Vikram Krishnan of Tamil Nadu National Law University.

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