DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

ENVIRONMENTAL LAW

PROJECT ON

THE TORT OF NUISANCE UNDER ENVIRONMENTAL LAW

SUBMITTED TO: SUBMITTED BY:

MR. VIPIN YADAV AKSHITA GUPTA

ASSISTANT PROFESSOR B.A.LL.B. (Hons.)- VII sem.

Enrollment No.: 130101011

R.No: 011

1|Page
 ACKNOWLEDGEMENT
It is a great enthusiasm of satisfaction and a matter of privilege to work on a project of
Environmental Law. I express my deep gratitude to my teacher Mr. Vipin Yadav. He helped me
understand and remember important details of the project work. I am thankful to the honorable
Vice Chancellor, Prof. Gurdeep Singh and the Dean (Academics) Prof (Dr.) C.M. Jariwala, who
provided me all possible resources for the successful completion of this project. Without their
guidelines, the project would not have worked successfully and effectively. At last but not the
least, I am thankful to my parents and friends who encouraged and motivated me to make the
best possible efforts for the completion of this project.

2|Page
 TABLE OF CONTENTS

1. Introduction....04
2. Nuisance...05-06
3. Public and Private Nuisance.........07-08
4. Penal provisions with regard to public nuisance..09-10
5. Judicial activism and S. 133 of CrPC...11-12
6. Conclusion.13
7. Bibliography..14

3|Page
 INTRODUCTION

Saghir Ahmed J of the Supreme Court has aptly observed, in unequivocal terms:
Pollution is a civil wrong. By its very nature, it is a tort committed against a community as a
whole. A person, therefore, who is guilty of causing pollution, has to pay damages for
restoration of the environment and ecology. In addition to the damages aforesaid, the person
guilty of causing pollution can also be held liable to pay exemplary damages so that it may act
as a deterrent for others not to cause pollution in any manner.1

Law of tort, basically a part of common law, is based on judicial pronouncements. There are
various torts which provide relief for environmental pollution. Some of them are:
Nuisance
Trespass
Negligence
Strict Liability

The very roots of environmental law can be found in the common law tort of nuisance. 2 The
definition of pollution under the Water (Prevention and Control of Pollution) Act, 1974
establishes that contamination of water can be said to be pollution, when it may or is likely to
create a nuisance. 3 This research paper discusses the tort of nuisance with respect to
Environmental Law. Public and Private nuisance under environmental law will also be dealt
with.

1
M.C Mehta v. Kamal Nath (2000) 6 SCC 213
2
Rogers, Winfield and Jolowicz on Tort (1984) 377.
3
P. Leelakrishnan, Public Nuisance and Civil Remedies, Environmental Law in India, LexisNexis, 3rd ed., 2008.

4|Page
 NUISANCE

Nuisance is a common law tort. It means that which causes offence, annoyance, trouble or
injury.

Legally, the term nuisance is traditionally used in three4 ways:

1. To describe an activity or condition that is harmful or annoying to others (e.g., indecent

conduct, a rubbish heap or a smoking chimney)
2. To describe the harm caused by the before-mentioned activity or condition (e.g., loud
noises or objectionable odors)
3. To describe a legal liability that arises from the combination of the two. However, the
"interference" was not the result of a neighbor stealing land or trespassing on the land.
Instead, it arose from activities taking place on another person's land that affected the
enjoyment of that land.

A nuisance can be either public (also "common") or private. The law of nuisance was created to
stop such bothersome activities or conduct when they unreasonably interfered either with the
rights of other private landowners (i.e., private nuisance) or with the rights of the general public
(i.e., public nuisance).5

Nuisance is a recurring state of affairs. It covers the escape of deleterious things and
inconvenience to another. Nuisance ordinarily means anything which annoys, hurts or that is
offensive. It maybe through escape of water, smoke, fumes, gas, noise, heat, vibrations,
electricity, disease, germs, trees, etc.

Nuisance arises from an allegation of injury to person or property. As in other areas of tort, the
injury need not be physical, and can include injury to rights or property enjoyment. The law of
nuisance recognizes two distinct categories of claims: private nuisance and public nuisance.
Defendant's conduct may create an actionable public nuisance when it interferes with the public

4
Winfield on Tort, 7th ed. P. 193
5
ibid

5|Page
health, safety or welfare. It may constitute a private nuisance when it interferes with another's
current possessory or beneficial interest in the use or quiet enjoyment of land.6
In Dhannalal v. Thakur Chittarsignh Mehtapsingh7, the MP High Court held that the constant
noise, if abnormal or unusual, can be actionable if it interferes with anothers physical comfort.
The person causing nuisance maybe restrained by injunction, although he may be conducting his
business in a proper manner according to rules framed in this behalf either by the municipality or
the state.
The focal point of law of nuisance is the material interference with the ordinary comfort of
human existence. The following factors are material in deciding whether the discomfort is
substantial as to make it actionable:8
Degree of intensity
Duration
Locality
The mode of using the property

The court held that anything which lessens the comfort or endangers the health or safety of a
neighbor must be an actionable nuisance. In this case, the plaintiff complained of smoke and
smell form the burning of bricks by the defendants.9

6
Pollock on Torts, 15th Ed., p. 302
7
AIR 1959 MP 240
8
S.C. Shastri, Environmental Pollution and Control under Other Laws, Environmental Law, Eastern Book
Company, 5th ed, 2015.
9
Bamford v. Turnley, (1862) 3 B&S 66

6|Page
 PUBLIC AND PRIVATE NUISANCE

The distinction between public and private nuisance is important for a number of reasons. Most
importantly, it determines whether or not you have standing (i.e., the right to sue). An individual
does not have standing to sue for a public nuisance, unless an exception applies. The principle
exception is if you are harmed in a manner that is different in kind from the harm suffered by the
public at large (i.e., you have a special injury).

A private nuisance is an unreasonable, unwarranted, or unlawful interference with

another persons private use and enjoyment of his or her property. A public nuisance is an
unreasonable, unwarranted, or unlawful interference with a right common to the general
public. Generally, any nuisance that is not a public nuisance is a private nuisance.
A private nuisance is a civil wrong, meaning that damages are the appropriate remedy for
those who have been harmed. On the other hand, a public nuisance is sometimes
classified as a criminal offense, and it may be remedied by civil or criminal penalties, but
it usually takes a city attorney or another public official (as opposed to a private
citizen) to initiate an action over a public nuisance.
The complainant in private nuisance neednt own the property; he need only be a lawful
occupant or the holder of one or more other use rights. In contrast, for a suit in public
nuisance, the complainant neednt have a property interest in any property affected by
defendant's conduct. A defendant may incur liability in both private and public nuisance.
For an individual to have an action for compensation for the inconvenience or
interference suffered, they would have to show that the impact was such as to cause them
special damage. That is, they must show that the impact on them was greater than that on
the general public. To have a claim relating to a private nuisance, you must show that
you live on the property (this includes if you are living on the land under an agreement
with the owner). In making your complaint to the court, you must show that the nuisance
complained of is not trivial or unreasonable.

It is important to note here that both categories have a substantial nexus with environment
management. But the law of public nuisance has a predominant connection with environmental
law and is an effective remedy at the grassroots.

7|Page
In case of private nuisance under environmental law, it is important for the plaintiff to show that
he has suffered some special damage, i.e., he has suffered some damage that is more than what
the others have suffered.

In Dr. Ram Raj Singh v. Babulal,10 the defendant created a brick grinding machine adjoining
the premises of the plaintiff, who was a medical practitioner. The brick grinding machine
generated dust, which polluted the atmosphere. The dust entered the consulting chamber of the
plaintiff and caused physical inconvenience to him and his patients. It was held that special
damage to the plaintiff had been proved and a permanent injunction was issued against the
defendant restraining him from running his brick grinding machine there.

In Radhey Shyam v. Gur Prasad,11 Gur Prasad and another filed a suit against Radhey Shyam
and others for a permanent injunction to restrain them from installing and running a flour mill in
their premises. It was alleged that the flour mill would cause nuisance to the plaintiffs, who were
occupying the first floor of the same premises inasmuch as the plaintiffs would lose their peace
on account of rattling noise of the flour mill and thereby their health would also be adversely
affected. It was held that substantial addition to the noise in a noisy locality, by the running of
impugned machines, seriously interfered with the physical comfort of the plaintiffs and as such,
it amounted to nuisance, and the plaintiffs were entitled to an injunction against the defendants.

In the case of Ram Raj Singh v. Babulal12, the court explained that when something is done by
the owner of a neighboring land upon his own land, which is not comfortable or is wholly
uncomfortable with physical comfort or human existence, the person aggrieved gets a right to
sue. The act of the neighbor of which he will complain will be an actionable nuisance. Special
damage must be caused. Special damage indicates damage caused to a party in
contradistinction to damage caused to the public at large.

But, as already stated, public nuisance has a closer nexus and a predominant connection with
environmental management and environmental law. There are certain penal provisions with
respect to public nuisance, which are more deterrent than other civil remedies.

10
AIR 1982 All. 285
11
AIR 1978 All. 86
12
AIR 1982 All. 285

8|Page
 PENAL PROVISIONS WITH REGARD TO PUBLIC NUISANCE

INDIAN PENAL CODE

The Indian Penal Code, 1860 provides punishment for the offence of committing a public
nuisance. Section 268 states that, a person is guilty of public nuisance who does any act or is
guilty of any 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.13

A negligent act resulting in an infection that is dangerous to life14, and the acts of adulteration of
food, drinks and drugs15 are offences inviting punishment of a varying nature. Contaminating the
water of a public spring or reservoir to make it unfit for ordinary use 16 , or poisoning the
atmosphere to the detriment of persons living in the neighborhood or passing along a public
way17 are punishable offences.

CODE OF CRIMINAL PROCEDURE

Under S. 133 of the Cr.PC, an executive magistrate can interfere and remove a public nuisance in
the first instance with a conditional order, and then with a permanent one. This provision can be
utilized in the case of a public nuisance of an environmental nature. The magistrate can adopt
immediate measures to prevent danger or injury of a serious nature to the public.

The court examined the scope of this provision in as early as 1926 in Deshi Sugar Mill v. Tupsi
Kahar18, where the sub-divisional magistrate shut down two sugar mills in a locality because
they were draining dirty and toxic water into the river. On appeal, the Patna High Court held that
S.133 of CrPC gave the power to proceed against the discharge of effluents injurious to the
health of the community.

13
Indian Penal Code 1860, Section 268
14
Ibid, Ss. 269,270
15
Ibid, Ss. 272-276
16
Ibid, Ss. 277
17
Ibid, Ss. 278
18
AIR 1926 Pat. 506

9|Page
The decision of the Patna High Court was specific on the point that S. 133 of the Code of
Criminal Procedure could be used for preventing public nuisance caused by pollution of water.
The discretion to decide what type, or quantum of evidence should support this decision, is left to
the magistrate. The law of public nuisance as laid down in Section 133 is equally applicable to
noise pollution as well. In Raghunandan v. Emperor19, the Allahabad High Court upheld the
order of a magistrate forbidding a factory owner from operating his factory engines from 9pm to
5am on the ground that it was injurious to the physical health of the community. The court held
that nuisance of such a nature would undoubtedly affect those living in the neighborhood of a
factory, and would be a matter attracting attention under S. 133 of CrPC.

However, the courts have at times tried to narrow down the scope of S. 133 to include only
actual nuisance and not to extend to the cases of potential nuisance. But in recent times, the
scenario is totally different. Consequences of a possible environmental catastrophe are of such
unpredictable quickness and magnitude that prevention rather than cure should be the best
environmental policy. Section 133 of CrPC does not show that it is applicable only to actual
nuisance. If preventive action can be taken when the construction of a building or the condition
of a tree is likely to be dangerous to the public, there is no reason why such preventive action is
not allowed in all types of public nuisance.

19
AIR 1931 All 433

10 | P a g e
 JUDICIAL ACTIVISM AND S. 133 OF CODE OF CRIMINAL
PROCEDURE

In 1979, the Supreme Court of India has captured the potential parameters of the law of nuisance
in CrPC as a remedy for environmental assaults in Govind Singh v. Shanti Swaroop20, where the
nuisance caused was due to smoke emanating from a bakery. The magistrate made an order for
the demolition of the oven and the chimney, and later directed the baker to wind up his business
from the site. The SC, on an SLP, noted that the evidence disclosed the emission of smoke
injurious to the health and physical comfort of the people living or working in the proximity of
the appellants bakery. The court observed that, in cases where safety and convenience of the
public at large is involved, it would be a safer recourse to order the appellant to not use the oven
and the chimney at all during a particular period.

A landmark decision in this respect is Municipal Council Ratlam v. Vardhichand21, where the
residents in the Ratlam municipality were suffering for a long time from pungent smell
emanating from open drains, which was caused by public excretion in slums and liquid flowing
in the streets from the distilleries. Instead of complying with the order of the magistrate to
remove the drain within a 6 month time period, the municipal council challenged the decision.
The apex court held that local bodies had a certain responsibility towards protection of
environment and developed the law of public nuisance in the CrPC as a potent instrument for
enforcement of their duties.

It was held that when an order is given under S. 133, the municipality cannot take the plea that
notwithstanding public nuisance, its financial liability validly exonerated it from the liability.
The CrPC operates against statutory bodies and agencies regardless of the cash in their coffers,
because human rights have to be respected by the state irrespective of budgetary provisions. The
court was of the view that statutory agencies should not defy their duty by urging in self-defence,
a self-created budget of perverted expenditure budget. It was also observed that the processes
envisaged under Section 133 have a social justice component. The remedies available and the

20
AIR 1979 SC 143
21
AIR 1980 SC 1622

11 | P a g e
powers exercisable are conducive to the demands of rules of law necessitated by the conditions
of developing countries.22

The verdict in Ratlam case is a significant milestone in the path of environmental protection. It
has served to offset the insufficiency of the legal mechanism and enforcement not only in the
laws governing the local bodies, but also in environmental legislations such as Water Act, Air
Act and EPA. It has widened the scope and amplitude of the jurisdiction of magistrate under
S.133 of CrPC. Besides being a useful antidote to the crisis of sanitary environment management
in the Indian scenario, it lays down basic guidelines in determining the primary responsibilities
of local bodies and industries and points towards the accountability of both public and private
agencies in a welfare state.23

This case has remarkably influenced later judicial pronouncements. In a case where the
complaint by a lady whose husband was a heart patient and could not sleep because of the noise
and air pollution from a glucose saline manufacturing company in that residential area, the
magistrate ordered to close down the factory, which was upheld by the Madhya Pradesh High
Court.24 In another case where working of fodder cutting machines caused noise and offensive
smell. Sand laden winds carried the fodder particles to a nearby residential colony, due to which
people could not sleep or sun-dry their clothes. The Rajasthan High Court held that all this
caused public nuisance justifying the verdict of the magistrate.25

22
Municipal Council Ratlam v. Vardhichand, AIR 1980 SC 1622
23
P. Leelakrishnan, Public Nuisance and Civil Remedies, Environmental Law in India, LexisNexis, 3rd ed., 2008.
24
Krishna Gopal v. State of Madhya Pradesh, (1986) CrLJ 396
25
Himmat Singh v. Bhagwana, (1988) CrLJ 614

12 | P a g e
 CONCLUSION

Nuisance, therefore, can be an effective remedy against environmental pollution. It can be

anything that disturbs the peaceful living of a person in a society, from smoke, noise, dust,
garbage, effluents to water, gas, heat, vibrations, disease, germs, etc. it can be either private or
public. Though private nuisance is as important a consideration as public nuisance, but public
nuisance has a closer nexus with environmental law. Law also provides for certain penal
provisions to control public nuisance.

Environmental nuisance is to be dealt by the local authorities through the help of statutory
powers. Such powers include licensing schemes or enforcement notices. The strategy which is
appointed by the local authorities in dealing with such offence is by discussing the problem with
the person responsible for such offense before issuing enforcement notice.

Thus, after the analysis of above cases, we find that, the Supreme Court is, at the present time,
stretching the different legal provisions for environmental protection. In this way, the judiciary
tries to fill in the gaps where there is laciness of the legislation. These new innovations and
developments in India by the judicial activism open the numerous approaches to help the
country. In India, the courts are extremely cognizant and cautious about the special nature of
environmental rights, considering that the loss of natural resources cant be renewed.

13 | P a g e
 BIBLIOGRAPHY
BOOKS
P. Leelakrishnan, Public Nuisance and Civil Remedies, Environmental Law in India,
LexisNexis, 3rd ed., 2008.
S.C. Shastri, Environmental Pollution and Control under Other Laws, Environmental
Law, Eastern Book Company, 5th ed, 2015.
Pollock on Torts, 15th Ed
Winfield on Tort, 7th ed

STATUTES

Indian Penal Code, 1860

Code of Criminal Procedure, 1973

WEB SOURCES

Abhishek Narula, The concept of nuisance in Tort Law,

http://www.publishresearch.com/download/857
Ajay Shaw, India, http://dsklegal.com/html/pdf/env10_chapter24_india.pdf
Atisha Sisodiya, Role of Indian Judiciary in protection of Environment in India,
http://www.lawctopus.com/academike/role-indian-judiciary-protection-environment-
india/
Ranjit Singh, Legal Control of Noise Pollution in India: A Critical Evaluation,
http://www.ijrhss.org/pdf/v3-i4/5.pdf
K. Rama Joga Rao, Use of Criminal Machinery for Environmental Protection,
http://www.ebc-india.com/lawyer/articles/2001v7a7.htm

14 | P a g e