(c) “Nuisance is no branch of negligence.” Explain. Describe who can sue and who is liable for nuisance.

“Nuisance is no branch of negligence.” - Explanation

The statement "Nuisance is no branch of negligence" encapsulates a critical distinction between these two torts. While both are civil wrongs leading to liability, their foundational principles and elements are different.

• Focus of the Wrong: Negligence focuses on the 'conduct' of the defendant, specifically whether it falls below the standard of a reasonable person, thereby breaching a duty of care. Nuisance, on the other hand, focuses on the 'result' or 'consequence' of an act or state of affairs – an unreasonable interference with the use and enjoyment of land or public rights. The act causing the nuisance may or may not be negligent.
• Duty of Care: In negligence, establishing a duty of care owed by the defendant to the plaintiff is paramount. Without a duty, there can be no negligence. Nuisance does not necessarily require the existence of a prior duty of care. It arises from an act or omission that interferes with proprietary or public rights, irrespective of whether the defendant owed a specific duty to the plaintiff to avoid such interference.
• Unreasonableness: In negligence, unreasonableness relates to the defendant's conduct. In nuisance, unreasonableness relates to the interference itself – whether the interference with the plaintiff's use and enjoyment of land is substantial and unreasonable in the given circumstances.
• Mental Element (Intention): While intention is generally absent in negligence (it's about carelessness), nuisance can arise from intentional acts, negligent acts, or even acts without any specific fault. The liability in nuisance is often considered a strict liability in certain circumstances, focusing on the interference rather than the fault of the creator.

For instance, if a factory owner operates machinery that creates excessive noise disturbing neighbours, it could be a nuisance even if the owner has taken all reasonable precautions (i.e., not negligent) to minimize noise. The interference with the neighbours' enjoyment of their property is the core issue. Conversely, if a driver negligently causes an accident, injuring a pedestrian, this is negligence, not nuisance, as it does not involve interference with land use or public rights in the same manner.

Types of Nuisance

Nuisance is broadly classified into two categories:

1. Public Nuisance

Public nuisance affects the community at large or a considerable section of the public. It is a criminal offense under Section 268 of the Indian Penal Code (IPC), 1860, and also a civil wrong under the Law of Torts. Section 268 of the IPC defines public nuisance as any act or illegal omission that causes common injury, danger, or annoyance to the public or to people 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.

• Examples: Blocking a public highway, polluting a river used by the public, operating a noisy factory in a residential area causing widespread discomfort, carrying out hazardous activities without proper safety measures.
• Remedies:
  • Criminal: Punishment under Section 290 of IPC (fine), or Section 291 of IPC (imprisonment for continuing nuisance after injunction). Magistrates can also order removal of public nuisances under Sections 133-143 of the Criminal Procedure Code (CrPC).
  • Civil: An individual can sue for public nuisance in tort if they suffer 'special damage' (damage distinct from that suffered by the public at large). Remedies include injunctions (court orders to stop the nuisance) and damages (monetary compensation).

2. Private Nuisance

Private nuisance is an unlawful interference with a person's use or enjoyment of land, or some right over or in connection with it. Unlike public nuisance, it affects a specific individual or individuals, not the general public. It is solely a civil wrong.

• Essential Elements:
  1. Unreasonable Interference: The interference must be substantial and unreasonable. What constitutes unreasonableness depends on factors like the locality, duration, intensity of the interference, and the sensitivity of the plaintiff.
  2. Interference with use or enjoyment of land: This includes physical damage to property (e.g., vibrations causing cracks) or interference with comfort and convenience (e.g., excessive noise, foul smells, smoke, dust, vibrations).
  3. Damage to the plaintiff: Actual damage (pecuniary loss or discomfort) must generally be proved, although physical damage to property is presumed by law.
• Examples: Persistent loud music from a neighbour, smoke or noxious fumes from a nearby factory making residential living unbearable, branches of a neighbour's tree overhanging one's property and causing damage.
• Remedies: Damages (monetary compensation for loss suffered) and Injunction (a court order compelling the defendant to stop or prevent the nuisance). Abatement (self-help removal of nuisance) is also a remedy but is generally disfavoured by law.

Who Can Sue for Nuisance?

The standing to sue for nuisance depends on whether it is a public or private nuisance:

For Private Nuisance:

• Generally, only a person with an interest in the affected land can sue. This includes:
  • The owner of the property.
  • The tenant or lessee in possession of the property.
  • The occupier of the property, including a licensee with exclusive possession.
• The plaintiff must demonstrate that they have suffered an unlawful and unreasonable interference with their use or enjoyment of their property.

For Public Nuisance:

• Under Section 91 of the Civil Procedure Code (CPC), 1908, a suit for public nuisance can be instituted by:
  • The Advocate General.
  • Two or more persons, with the leave of the court, even without proof of special damage.
  • Any private person who has sustained 'special damage' (damage over and above that suffered by the general public). This special damage must be direct and not merely consequential.

Who is Liable for Nuisance?

Liability for nuisance can fall on various parties, depending on their role in creating or continuing the nuisance:

• The Creator of the Nuisance: The person who directly causes or creates the nuisance is primarily liable. This applies regardless of whether they are the owner or occupier of the land from which the nuisance emanates.
• The Occupier of the Premises: An occupier of land can be held liable even if they did not directly create the nuisance, but they adopt or continue it. This includes:
  • Occupier by adoption: If the occupier makes use of the state of affairs causing the nuisance.
  • Occupier by continuance: If the occupier knows or ought to have known about the nuisance and fails to take reasonable steps to abate it. This can include nuisances created by trespassers or natural causes.
• The Landlord/Owner: Landlords are generally not liable for nuisances created by their tenants unless:
  • They expressly or impliedly authorized the nuisance.
  • The nuisance existed at the time of letting the property, and the landlord knew or ought to have known about it.
  • The landlord retained control over the part of the premises causing the nuisance or was responsible for repairs.
• Joint Tortfeasors: If multiple parties contribute to the same nuisance, they may be jointly and severally liable.
• Local Authorities/Government: In cases of public nuisance, local authorities or the government may be liable if the nuisance falls within their statutory duties to maintain public amenities and they fail to do so. For example, in Municipal Council, Ratlam v. Vardhichand (1980), the Supreme Court held the Municipal Council liable for public nuisance arising from open drains and lack of sanitation.