DEFENCES TO NUISANCE

PRESCRIPTION AND STATUTORY

AUTHORITY

SUBMITTED BY -Ekagrata Kalra

SUBMITTED TO- MS. HIMANSHI BABBAR
CLASS-2B
ENROLLMENT NO. 076
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INDEX
1. ACKNOWLEDGEMENT 2
2. ABSTRACT 3
3. INTRODUCTION 4
(I) NUISANCE
(II) PUBLIC NUISANCE
(III) PRIVATE NUISANCE

4. AIM & METHODOLOGY 6

5. DEFENCES TO NUISANCE 7
(I) PRISCRIPTION
(II) STATUTORY AUTHORITY

6. CONCLUSION 9
7. BIBLOGRAPHY 10
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ACKNOWLEGMENT

I would like to express my special thanks of gratitude to my teacher Ms. Himanshi Babbar as
well as our dean who gave me the golden opportunity to do this wonderful project on the
topic DEFENCES TO NUISANCE, which also helped me in doing a lot of Research and I
came to know about so many new things I am really thankful to them.
Secondly, I would also like to thank my parents and friends who helped me a lot in finalizing
this project within the limited time frame.
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ABSTRACT

This study deals with defences to nuisance with special emphasis on prescription and
statutory defence. The law of nuisance protects the right of the property owner or the right of
the person to use and enjoy the property and his liberty. Nuisance is an act that arises from
unlawful and unreasonable use of a person’s own property that is working an obstruction or
injury to the right of other person who is common public and producing such annoyance to
the public and causing inconvenience and discomfort resulting in damage or injury to the
rights or the property of a person. It is a valid defence to an action for nuisance that the said
nuisance is under the terms of a grant. The scope of this article is extended to deal with a
specific Tort of Nuisance and emphasis on the defence against nuisance: prescription and
statutory authority.
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INTRODUCTION

NUISANCE
The word “nuisance” is derived from the French word “nuire”1, which means “to do hurt, or
to annoy”. 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 with
his use or enjoyment of that property or of some right over, or in connection with it, we may
say that tort of nuisance occurred. In other words, Nuisance is an unlawful interference with a
person’s use or enjoyment of land, or of some right over, or in connection with it.2 Nuisance
is an injury to the right of a person in possession of a property to undisturbed enjoyment of it
and result from an improper use by another person in his property.
For making an act of Nuisance actionable under the law of torts the following essentials must
be satisfied-
■ Wrongful Act by the Defendant-
For the Action against Nuisance to arise the first essential is the conduct of a wrongful act by
the Defendant. Any action which is prima facie not legal and unreasonable in the eyes of a
prudent man. Caveat—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. 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 Right of the
plaintiff, nuisance comes into play.
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. 3
Hence it was held that in order to claim damages for Nuisance, the Interference shall be in a
state of continuing wrong.
In another case, the defendant's Factory emitted smokes, oil, fumes and smell and polluted
the environment along with harming the plaintiff's health because of his own sensitive health
issue, the former was held liable to the latter only for the emission of smoke, oil and fume
and not for health hazard.4

Nuisance is of two kinds:

1
https://en.oxforddictionaries.com/definition/nuisance
2
Definition of nuisance
3
Ushaben V. Bhagyalaxmi Chitra Mandir AIR 1978 Guj 13
4
Halsey V. Esso Petroleum Co. Ltd (1961) 2 All ER 145
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1. Public Nuisance
Public nuisance can be defined as “an act or illegal omission which causes any common
injury, danger or annoyance, 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.”5
The plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was
the priest and the chapel bell was rung at all hours of the day and night. It was held that the
ringing was a public nuisance and the plaintiff was held entitled to an injunction.6

2. Private Nuisance
Private nuisance is an unlawful interference and/or annoyance which cause damages to an
occupier or owner of land in respect of his enjoyment of the land.
The plaintiff, a doctor, complained that sufficient quantity of dust created by the defendant’s
brick powdering mill, enters the consultation room and causes discomfort and inconvenience
to the plaintiff and his patients;
The Court held that when it is established that sufficient quantity of dust from brick
powdering mill set up near a doctor’s consulting room entered that room and a visible thin
red coating on clothes resulted and also that the dust is a public hazard bound to injure the
health of persons, it is clear the doctor has proved damage particular to himself. That means
he proved special damage.7
Just as the law permits an injured party to bring a lawsuit to stop a nuisance, the law provides
land owners and users with certain defences–legally permitted excuses–to avoid liability for
nuisance claims. These are known as the defences against nuisance.

Aim of the Study:

5
Section 268 of the Indian Penal Code
6
Solatu v. De Held (1851) 2 Sim NS 133
7
Ram Raj Singh v. Babulal, AIR 1982 All. 285
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To analyse defences to nuisance: statutory authority and prescription

Research Methodology
1) This study is a non-doctrinal research
2) Secondary data are used

Source of Study
List of journals, articles, books are used for reference purpose in this study.

DEFENCES TO NUISANCE
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There is a number of defences being pleaded before the court. Some of them are recognized
by the court, others failed. Recognised ones are as follows:

PRISCRIPTION:
To commit an act which would otherwise be considered as an offence for nuisance, if the
permission is granted then under that circumstance the act would never be considered a
nuisance.
For where if a person is farming on a plaintiff’s land for which the plaintiff has not raise any
objection then in such circumstances it would be considered that such action has been done
under the permission granted by the defendant for which after a long period of time defendant
can’t have any claim. The period for legalizing such granted permission is presumed to be 20
years.
As in the case, the defendant was a confectioner who had his kitchen in the rear of his house.
Till 20 years he has been using the kitchen where its materials like large pestles and mortars
were kept and were in continuous use. The noise and vibrations used to come from his house
which never disturbed the plaintiff. But when the plaintiff shifted his consulting room to
garden then he felt disturbed due to the noise and vibration released from those pestles and
mortars. It was held that the plaintiff was liable for nuisance and therefore injunction order
was being passed against him. In his defence he pleaded for plaintiff permission being
granted as the noise never disturbed him for 20 years but the defence also failed as a nuisance
for the same was felt to plaintiff when he shifted his room, therefore, the defence failed.8

There are three essentials to establish a person’s right by prescription9, these are:
Use or enjoyment of the property: The use or enjoyment of the property must be acquired by
the individual by law and the use or enjoyment must be done openly and peacefully.
Identity of the thing/property enjoyed: The individual should be aware of the identity of thing
or property which he or she is peacefully or publicly enjoying.
It should be unfavourable to 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.

STATUTORY AUTHORITY
8
Sturges vs. Bridgman (1879) 11 Ch. D. 852.
9
The essence of prescription is explained in Section 26 of the limitations act and Section 15 of the Easements
Act.
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If some act has been committed under the authority given by the statutory authority then
under those circumstances that act would not lead to the offence of a nuisance. Like for
example, where a railway company authorized by the government to run railway trains on the
track, then if in spite of due care taken the sparks from engine set fire to the adjoining
property10 or even if the value of property adjoining to it depreciate by the noise, vibrations,
and smoke by the running train then the company won’t be held liable.
Where a statute has authorised the doing of a particular act or the use of land in a particular
way, all remedies whether by way of indictment or action, are taken away; provided that
every reasonable precaution consistent with the exercise of the statutory powers has been
taken. Statutory authority may be either absolute or conditional.
In case of absolute authority, the statute allows the act notwithstanding the fact that it must
necessarily cause a nuisance or any other form of injury.
In case of conditional authority, the State allows the act to be done only if it can be without
causing nuisance or any other form of injury, and thus it calls for the exercise of due care and
caution and due regard for private rights.
Leading Cases in India: Municipal Corporation was under duty to erect urinals and water
closets for public use. A site was selected to which plaintiff objected claiming it will be a
source of nuisance. it was held that corporation acted bona-fide in selecting the site.11
Observation in this case: If in pursuance of an act authorised by the legislature and all other
incidental and subsidiary acts created nuisance , the local body authorised to perform these
acts cannot be restrained by authoritative warning or order nor the local body may be held
liable for the damages except on the ground of negligence.

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 concept of nuisance is one that arises

10
Vaughan vs. Taff Vale Rail Co., (1860) 5 H and N. 697
11
Municipal Corporation of the City of Rangoon v. Surati Bara Bazar Co. -- ILR 1 Rang -668: (AIR 1924 Rang 194)
(G)
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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. To ensure that both the parties are treated
properly, certain defences have been made to deal with the same. These defences protect the
defendant from liability of nuisance caused. These defences can be used to by the defendant
while defending himself from the charges of nuisance.

BIBLIOGRAPHY
1. AVTAR SINGH, HARPREET KAUR, et.al., Introduction to the Law of Torts and
Consumer Protection 3rd Edition (LexisNexis, Gurugram, 2013)
2. http://lawtimesjournal.in/nuisance/
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3. https://acadpubl.eu/hub/2018-120-5/2/199.pdf
4. https://blog.ipleaders.in/the-tort-of-nuisance/
5. https://en.oxforddictionaries.com/definition/nuisance
6. https://www.lawteacher.net/modules/tort-law/nuisance/lecture.php
7. https://www.legalbites.in/nuisance-tort-law/#_ftnref2
8. https://www.scconline.com/
9. INDIAN PENAL CODE, 1860
10. R.K. Bangia, et.al., LAW OF TORTS Including Compensation Under the Motor
Vehicles Act and Consumer Protection Laws (ALA, COCHIN,2018)
11. Sir John William Salmond, R. F. V. Heuston, et.al., Salmond on the law of torts
(Sweet & Maxwell; 21st Revised edition edition (24 October 1996))
12. THE INDIAN EASEMENTS ACT,1882
13. THE LIMITATION ACT, 1963