• DEFENCES:

Some of the defences while are available to a person, are as follows –

1. Prescriptive right to commit nuisance, and
2. Statutory Authority

Let’s discuss them one by one:

• PRESCRIPTIVE RIGHT TO COMMIT NUISANCE:

If an activity is performed from the past 20 years or more, without and objections or hindrance, then the person performing that activity acquires the legal right to keep performing the activity in the coming future also. For example, giving way through one’s own plot, which is being used by the public from the past 20 years and no objections raised by the landowner during this period.

• STATUTORY AUTHORITY

When an act is done under the given regulation, it can be taken in account as a good defence. If the act falls under the purview of something which falls under the authority of statute, then it cannot be termed as ‘Nuisance’. For example, picking and dropping soldiers from posts, testing weapons and practising warfare (with due permission and all cautions) and while escorting important personals (Chief Ministers, Prime Minister or the President).

• WHEN PRIVATE NUISANCE BECOMES PUBLIC NUISANCE:

We have seen how nuisance is different from trespass, and also how private nuisance is different public nuisance. So now the question arises, is it possible that a Private nuisance gets converted into Public nuisance? The answer is yes, it can. To understand this better, let’s take a look at the illustration below:

• A famous car modification company “Kounts Kustoms” due to lack of space, starts parking its cars in front of A’s house. Here, it is to be noted that only A alone is annoyed. Meanwhile, with the passage of days, Kounts Kustoms started to occupy more space and to overcome the parking problem, they started parking cars outside everyone’s house (in the radius of 500 meters). Now this situation can be considered as a public nuisance. What was previously affecting only a single household, is now troubling the whole neighbourhood. The neighbours cannot sue Kounts Kustoms individually, but they club together and can then sue the company.

Similarly, in a public nuisance case, an individual can also file a private nuisance case. It’s very much baffling right? So, to understand this concept better, let’s bring into picture, “Kounts Kustoms” again.

• Imagine in the above scenario, Kounts Kustoms is held liable for public nuisance. The company has been punished with a fine and everything is fine now. But our old friend A, has suffered a broken main gate (front gate of A’s house is damaged), that to, because of the negligent car parking chore, which occurred during the car parking process. Now, it can be clearly understood that A has suffered special damages because of Kounts Kustoms conduct. It is therefore very likely, that A will be able to file an independent case and recover special damages under the purview of Private Nuisance.

Let’s understand how private nuisance gets converted into public nuisance using a recent famous case from the Jharkhand High Court.

• Bhola Prasad Deo vs The State of Jharkhand And Anr. (2003)[1]

In this case, Bhola Prasad Deo, the plaintiff has appealed against the order passed by the 1 st Additional Sessions Judge, Deogarh, who set aside his case as one which cannot be entertained under the purview of S 133 (1) (b) Cr. P C[2], which was preferred by the defendant. Thereafter, the plaintiff enquired the Sub-Division Magistrate to look into the matter under the ambit of S 133 (1) (b) Cr. P C. According to the plaintiff, his neighbour Gautam Bhattacharjee runs a poultry farm in first floor of his own house, without obtaining any valid license from the Government Organisation or Pollution Control Board, it is also to be noted that the said poultry farm in running in the middle of a populated locality, which causes the plaintiff great discomfort, unbearable foul smell and endangers his and his family member’s life. The Sub-division Magistrate looked into the inquiry, and found out the claims of the defendant to be true. He also found out that the poultry farm troubles not only the plaintiff, but also many of the neighbours and also it puts they lives in hazard. After satisfaction, he ordered for the conditional removal of the poultry farm, and ordered Gautam Bhattacharjee to show cause that why the farm shouldn’t be closed. The defendant’s counsel argued that the plaintiff appealed under the purview of private nuisance and it is because of this reason that the SDM cannot treat this case under the ambit of public nuisance. The SDM responded by stating that running a poultry farm in a densely populated area is fatal (as the plaintiff’s wife died due to this cause) not only to the individual neighbours but also to the community residing nearby at large. Thereafter with the help of S 133 of Cr. P C, this appeal was entertained.

We can see in the above case how a private nuisance case gets converted into public nuisance case. How a problem which affected an individual prima facie can trouble the whole society in minimal amount of time. The cases related to water pollution, air pollution, loud noises and foul odours can affect the society on large scale. What was previously a trivial problem has now become a matter of public concern.

As we can observe in the above cases that how public and private nuisance cases differ from each other, what are some basic differences between them, how both attract different types of punishments and how a private nuisance case gets converted into a public nuisance case. But have you ever thought about the one individual who has suffered more lose then the others in a public nuisance case? Wouldn’t it be unfair if he/she is not awarded more compensation then others? Keeping this in mind, we will study about Special Damages in Public nuisance cases.

[1] Bhola Prasad Deo vs The State of Jharkhand And Anr., 2004 CriLJ 2570, (JHARKHAND HC 2003)

[2] Code of Criminal Procedure

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