NUISANCE ON HIGHWAYS:A CRITICAL STUDY

Introduction

A person in possession of a property is entitled to its undisturbed enjoyment as per law.

However if someone else’s improper use or enjoyment in his property ends up resulting into
an un lawful interference with his enjoyment or use of that property or of some of the rights
over it, or in connection with it, we can say that the tort of nuisance has occurred.

Nuisance is an injury to the right of a person’s possession of his property to undisturbed

enjoyment of it any results from an improper usage by another individual. Nuisance is a word
that everybody understands and we can say that nuisance in common parlance means
nothing more than inconvenience to people or to another. The law recognizes that minor
inconveniences should be endured as they are inevitable; example if you build your house
along a high way, cars will always pass with their horns hooting. Nuisance on highway is an
important kind of nuisance which is faced in daily life .

Meaning and Definition

The word Nuisance is derived from the French word ‘Nuire’ which means to annoy or hurt. It
is an unlawful interference with a person’s use or enjoyment of land. Under normal
circumstance, a person is entitled to the full and reasonable enjoyment and use of this
property tangible, intangible, movable or immovable, whatsoever. This being his legal right
cannot be taken away without lawful justification. Contrary to the provided protection if
someone unlawfully interferes with this entitlement of a person he/she commits a tort of
Nuisance.1

As per the most accepted definition of Nuisance which is the one given by Bermingham,
nuisance is an unlawful interference with a person’s use and enjoyment of land, or some of
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 unreasonably uses his own property in
a way which negatively affects the former. According to Stephens “Nuisance is anything
done to the hurt or annoyance of the lands, tenements of another, and not amounting to
trespass.”

Another Jurist Salmond expresses “The wrong of Nuisance consists in causing or allowing
without lawful justification the escape of any deleterious thing from his land or from

1
Available at Nuisance and it’s essential,Manuputra (accessed on 08
April,2024),https://www.manupatrafast.com.

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elsewhere into land in possession of the plaintiff, e.g. water, fumes, smoke, gas, noise, heat,
vibration, electricity, disease, germs, animals.”

Nuisance in Legal Terms

In law, nuisance has a more restrictive meaning than it has in an ordinary parlance. It is not
all inconveniences that will succeed in an action for nuisance. Minor inconveniences which
are usually as a result of normal human interaction in the society are not actionable in law.
The law always tries to strike a balance between the conflicting interest of the plaintiff and
the defendant in the society. So we can define the tort of nuisance as an act which gives rise
to unlawful, unwarranted or unseasonable annoyance or discomfort to the plaintiff and
which results in damage to the property of the plaintiff or interfere with his use and
enjoyment of his land2.

Essential Elements of Nuisance-

For making an act of Nuisance actionable under the law of torts the following essentials
must be satisfied:-

• Wrongful Act by the Defendant

The Action against Nuisance to arise the first essentiality is the conduct of a wrongful act by
the Defendant. This may include 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 Rights of the
plaintiff, nuisance comes into play.

Case Law: In Ushaben V. Bhagyalaxmi Chitra Mandir 3 where 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

2
Available at The tort of Nuisance, iPleaders Blog ( accessed on 08 April 2024),https://blog.ipleaders.in
3
A.I.R, 1978 Guj. 13.

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the Movie again. Hence it was held that in order to claim damages for Nuisance, the
interference shall be in a state of continuing wrong. In order to claim an action for nuisance
legal right should be violated of the plaintiff, without proof of damage to the plaintiff, it’s
action cannot be claimed.

In Hasley v. Esso Petroleum Co. Ltd4, where the defendant’s factory emitted smokes, oil.
And polluted the environment along with harming the plaintiff’s health because sensitive
health issue, the former were held liable to the later only for the emission of smoke ,oil and
fume and not for health hazards.

Kinds of Nuisance under Law of Torts

Nuisance as a tort is further categorized into two types-

Private Nuisance and Public Nuisance, both having their own areas of actions and types of
damages

Kinds of Nuisance under Law of Tort:-

Private Nuisance

Private nuisance protects the interest of the occupier of land or premises in the use and
enjoyment of his land. This type of nuisance usually emanates from the defendant’s private
land or his actions in his private capacity. Accordingly, a plaintiff must show that he has
some interest in the land in question. Thus, the land must not be public land. The law of
private nuisance seeks to strike a balance between two conflicting interests; that of an
occupier in the using his land as he thinks fit and that of his neighbours in the quiet
enjoyment of his land. Thus, a person must not use his property is such a way that will cause
inconvenience to his neighbour.

In an action for private nuisance, the court considers the following:

i)Whether the injury complained of is sensible in the case of material damage to property
and in the case of interference with enjoyment of land, whether the injury is substantial.

ii)Whether the conduct of the defendant is unlawful, unwarranted or unreasonable.

Elements which constitute a private nuisance:-

To constitute a private nuisance following essentials are required:-

2-Unreasonable Interference:- To constitute nuisance interference the should be

unreasonable. Reasonable interference does not count.

4
(1961) 2 All. 86.

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Every person must put up with some noise some vibrations ,some smell etc, so that
members of the society can enjoy their own rights .

In case of Radhey Shyam v. Gur Prasad5,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 said mill would nuisance to the plaintiffs
who were occupying the first floor portion of same premise inasmuch as the plaintiffs would
lose their peace on account of rattling noise of the floor mil and thereby their health would
be also adversely affected. It was held substantial addition of noise in a noisy locality by
running of impugned machine seriously interfere with the health and physical comfort of the
plaintiffs therefore defendants were held liable.

2-Interference with the use of enjoy of land:- Interference may cause either 1-Injury to the
Property itself, or 2- Injury to the health or comfort of occupants of certain property.

Injury to property- An unauthorised interference with the use of property of another person
through some object tangible or intangible which causes damage to the property is
actionable as nuisance. It may be by allowing the branches of a tree to overhang on the land
of another person or the escape of the roots of a tree, water, gas ,smoke or fumes etc on to
the neighbour’s land or even by vibrations.

In the case of St. Helen ‘s Smelting Co. V. Tipping 6 , fumes from the defendant company’s
works damaged plaintiffs trees and shrubs, such damage is being an injury to the property it
was held at the defendants were liable the plea that locality was devoted to works of that
kind was unsuccessful.

Injury to comfort or health – Substantial interference with the comfort and convenience in
using the premises is actionable as a nuisance A mere trifling or fanciful inconvenience is
not enough the rule is De minimis non curax lex meaning the law does not take account of
every trifling matters, there should be a serious inconvenience and interference with the
comfort of the plaintiff.

In the case of Ball v. Bay7, it was held that the disturbance to neighbours throughout the
night by noise of horses in a building which was converted into a stable was a nuisance.

So the interference must be with comfort or enjoyment of property. And this include injury
to comfort or health and injury to property which can be done through tangible or intangible
object which causes damage to the property.

5
A.I.R 1978 All.86.
6
(1865) 11 H.L. Cas 642
7
(1873) L.R.8 Ch. App. 467

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In Delaware Ltd. V. Westminister City Council8 where the roots of the Defendant’s trees
caused cracks to the adjacent building, the Plaintiff i.e. the owner of the building was made
entitled to recover suitable damages from the defendant by the Virtue of tort of Nuisance.

In Dattamal Chiranji Lal v. Lodh Prasad9, the defendants were awarded an injunction to
stop the grinding mill which led to a non-peaceful life for the Plaintiff and his family.

In Palmar v. Loder 10 , the Defendants were awarded a perpetual injunction against loud
laughing, noise making and continuous ringing of the Plaintiff’s Doorbell.

Public Nuisance

Public nuisance refers to that which affects the general public or a section of the public. It is
that which affects the public segment or class of the public by reason that it is indiscriminate
in its effect or widespread.

A nuisance may become public nuisance either from its source or its final effect or
destination. Again, a nuisance that affects a class or a segment of a society is public
nuisance and whether the number of persons affected is sufficient to merit public nuisance
is a question of facts depending on the facts and circumstances of each case. Everything is
to be looked at from a reasonable point of view. Instances, of public nuisance include
obstruction of highway or public roads, public waterways, noises pollution, oil spillage from
the activities of multinational oil companies and carrying on obnoxious business like
operating a brothel etc.

A public nuisance is usually a crime ( section 234 of the Criminal Code and sections 192 &
194 of the Penal Code) which can only be prosecuted by the Attorney General in his capacity
as the custodian of public right, In other words, a private person has no right to prosecute
the crime of public nuisance; the Attorney-General prosecutes.

However, for a private person to sue for public nuisance, he has to show that he has suffered
a particular or special loss/damage over and above that suffered by other members of the
public.

In a certain case , the Supreme Court, stated the position of the law ,“an obstruction of
highway or hindering the free passage of the public along the highway is a public nuisance
and a private individual has a right of action if he can prove that has sustained particular

8
[2001] UKHL 55.
9
AIR 1960 All 632.
10
(1962) CLY 2233.

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damage other than and beyond the general inconvenience and injury suffered by the public
and that the particular damage which he sustained was direct and substantial.”

The requirement of proving particular damage will be satisfied If the plaintiff can show that
he has suffered damage which is appreciable greater in degree than any suffered by the
general public.

It is germane to note that, many a time a class or section of the public will sue for public
nuisance and usually the action will fail as the court will always say that a class action is
improper in such cases. This is because all of them put together are private persons and they
cannot enforce public nuisance. It is better to sue individually by trying to prove that you have
suffered over and above all others.11

A similar decision was reached in Adediran v. Interland Transport Ltd, Where the
plaintiffs/appellants sued in a representative capacity for themselves and on behalf of
residents of a housing estate; the Supreme Court holding that although all the injuries
complained of arise from the same nuisance complained of, each separate injury is a
distinct tort.

In the case of Rose v. Miles12 the defendants wrongfully moored his barge across a public
navigable creek , This blocked the way for plaintiff’s barges and the plaintiff had to incur
considerable expenditure in unloading the cargo and transporting the same by land.lt was
held that there was special damage caused to the plaintiff to support his claim, It was held
a public nuisance and the defendant was held liable.

Nuisance on Highways

Obstructing a highway or creating danger on it or in its close proximity is a nuisance

In relation to highways, the law of nuisance overlaps considerably with the statutory law
(mostly in the Highways Act, 1980 ), but the common law is expressly preserved by Section
333 of Highway Act 1980.

Pratt and Mackenzie’s Law of Highways (21st Edition, 1967) defined a highway nuisance as –
‘any wrongful act or omission upon or near a highway, whereby the public are prevented from
freely, safely and conveniently passing along the highway’.

A nuisance is either: (i) An actual interference with the public right of way or highway, or (ii)
Such use of the adjoining land that persons who deviating from the road while using the

11
Available at Nuisance under Law of Tort, Legal Service India ( accessed on 08
April,2024),https://www.legalserviceindia.com
12
(1854) 4 M & S.101

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highway with ordinary care, may suffer injury from some dangerous structure or excavation
on that land.

• The statutory Provisions

Chapter 9 of Highway Act, 1980 specifically deals with the Nuisance on Highways .
According to Lord Halsbury —” the moment the structure of the road is interfered with and it
comes within the ambit of the operation commenced by the person who is entitled to
interfere with the structure of the road then until the road is restored into the condition in
which it was before that alteration of its structure began it seems to me the person who
interfered with it responsible for a misfeasance.”13

Under the Highways (Miscellaneous Provisions) Act, 1961 the common law rule that a
highway authority is not liable for non-feasance is abolished therefore the distinction
between misfeasance and nonfeasance by local authorities is now abrogated . The law is to
be found now in the Highways Act 1980.

In the case of Haydon v. Kent County Council 14 , it was held that in any action against
Highway Authority for its failure to maintain a highway, it is a defence to prove that the
authority had taken such care as in all the circumstances was reasonably required.

Leaving unlighted vehicle on road at night

In Ware v. Garston Haulage Co. Ltd. 15a motorcyclist at night ran into the back of a trailer
which was attached to a stationary lorry standing on the near side of a highway. The lorry and
trailer were un attendant and no rear lights showed from the trailer. It was held that the lorry
and trailer were an obstructions on the highway and as such constituted and actionable
nuisance. There was a dangerous obstruction in the highway and consequently there was an
absolute duty on the defendants to light it or otherwise efficiently guard it to prevent
accident.

Injury caused by subsidence of Highway

In the case of Newsome v. Darton Urban District Council16 the defendants had made a
trend in a highway for the purpose of laying of drain. The trench was filled in but after 3 years
a subsidence occurred at the site of the excavation, The plaintiff while riding a bicycle passed
over the subsidence and was thrown from his machine and injured. It was found that the
subsidence was the result of the work though the work has not been done negligently. It was

13
Mayor and Corporation Of Shoreditch v.Bull, (1904) 90 L.T. 210,211
14
(1978) QB 343
15
(1944) KB 30
16
(1938) 1 All ER 78

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held at first (1) the defendants having brought a nuisance on highway, were liable to the
plaintiff; (2) the defendants, being under a duty to make good the inevitable subsidence
resulting from the excavations also liable on the ground of negligence in not discovering and
remedying the danger.

Obstruction on Highways

In the case of Umesh Chandra Kar17, it was held that obstructing a highway or creating a
dangers on it or in its close proximity is a nuisance . Obstruction need not to be total . The
obstruction must however be unreasonable.

In the case of R v. Carlie 18 ,it was held that to cause the formation of queues without
completely blocking the public passage is a nuisance.

In the case of Barber v. Penley 19 due to considerable queues at the defendants theatre
access to the plaintiff premises, a boarding house, became extremely difficult at certain
hour, it was held that obstruction was a nuisance and the management of the theatre was
held liable

In the case of Dwyer v. Mansfiield 20, during acute scarcity of potatoes long queues were
form outside the defendants shop who having licence to sell fruits and vegetables used to
sell only one lb potatoes per ration book. The queues extended on the highway and also
caused some obstruction to the neighbouring shops. In an action by the neighbouring
shopkeepers for nuisance against the defendants, it was held that the defendant was not
liable because he was conducting his business in the normal way during this scarcity of
potatoes.So every kind of interference does not count ,the interference must be
unreasonable. And this unreasonable can be determined by circumstances and facts of
each case

In the case of Leanse v. Egerton 21 , the window plates of a building belonging to the
defendants, which was by the side of a highway, had been broken one Friday in an air raid.
The plaintiff got injured by a glass falling from the window the next Tuesday, by which time no
repairs had been got done by the defendants. Although the owner had no actual knowledge
of the state of premises, he was presumed to have the knowledge of the danger which
constituted nuisance and he was therefore held liable to the plaintiff. So obstruction on
highway is nuisance and the obstruction need not to be total.

17
(1887) 14 Cal, 656
18
(1834) 6 C & P 636
19
(1893) 2 Ch. 447
20
(1946) 1 K.B. 437
21
(1943) K.B. 323

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Creation of dangers on the highway by making excavations 22 ,projection of tree or lamps23 ,
leaving slippery or dangerous substances on the road also amounts to nuisance.

Doing an act in one’s own premises even though that offends the sentiments of the passer-
by of a certain class of persons is not a nuisance. Thus cutting up of cows by Mohammedans
in their own compound for a religious purpose was held to be no nuisance even though the
compound was partly visible from a public road24

Similarly in the case of Hassan v. Samad 25 , cutting of meat in one’s own premises and
exposing the same to public view did not amount to nuisance merely because that offended
the sentiments of a section of the public.

Projections on Highways

As regards projections on the Highways by objects like overhanging branches of a tree or a

clock etc from the land or building at joining the highway no action nuisance can be brought
for such projections unless some damage is caused, The mere fact that some object
projects on the highway does not mean that it is a nuisance .If every projection was to be
considered to be nuisance it would seem that a fortiori every lamp so over hanging, every
sign board every clock including that of law courts, every awning outside a shop, are in
themselves illegal errections,not to mention the upper storeys corbelled out over the
roadway which is common in every town in the country for centuries.

Rowatt J.,in the case of Noble v. Harrison26 observed that right of the public on a highway
was merely to pass and re pass and that so long as that right was not interfered with, they
could not complain of what was in the air above or on the earth beneath. In this case the
branch of a tree growing on a defendant land hung on the highway to a height of about 30 feet
above the ground . In a fine weather the branch of the three suddenly broke and fell upon the
plaintiffs vehicle which was passing along the highway. For the damage to the vehicle the
plaintiff sue the defendant to make him liable either for nuisance or alternatively for the rule
in Rylands v.Fletcher.

It was held that there was no liability for nuisance because the mere fact that the branch of
the tree was overhanging was not nuisance nor was the nuisance created by its fall as the
defendant neither knew nor could have known that the branch would break and fall . So mere

22
Gary v. Pullen,(1864) 5 B. And S.970
23
Tarry v. Ashton,(1876) 1 Q.B.D. 314
24
Zukinuddin,(1887) 10 All. 44
25
(1879) Unrep. Cr. C. 903.
26
(1926) A.C.88

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fact that something is hanging or projecting is not nuisance by itself unless it causes
damage.

In case of Caminer v. Northern & London Investment Trust Ltd.27, the defendants were the
lessees of land on which there was an Elm tree which was about 130 years old. That tree fell
on the adjoining highway on the plaintiffs car damaged the car and also injured some person,
the reason of the fall of the tree was that the roots of the tree were badly affected by a disease
known as elm butt rot. There was no indication of the disease of the roots above the ground.
In an action against the defendants for either negligence or for nuisance, it was held there
was no liability of defendant for either till neither the defendant knew nor the an ordinary
layman could have known about the dangerous condition of the tree so they could not be
made liable.

In the case of Tarry v. Ashton28 , the plaintiff was walking in a street adjoining the house
occupied by the defendant. A Large lamp weighing 40 to 50 lbs which had bee suspended
from the front of the house and projected several feet across the payment fell on the plaintiff
and seriously injured her. It was found that the fastening by which the lamp was attached to
the lamp iron was in a decade condition and that was the reason for the lamp falling and a
few months to prior this accident, the defendant had employed an independent contractor
for the repair of the lamp but he had not done his job properly ,in an action against the
defendant he was held liable.

Lush and Quain ,JJ. Held him liable on the ground that the defendant has duty to keep the
lamp in proper condition so that it is not dangerous to the public and he cannot get rid of the
liability for not having so kept it by saying that he employed a proper person to repair it. The
reason stated by Blackburn J. for making the defendant liable was that after knowing that the
lamp was in a dangerous state it was the duty of the defendant to see that it was properly
prepared and if he failed to get that the liability was his, it was the defendants duty to make
the lamp reasonably safe , the contractor failed to do that and the defendant having the duty
has trusted the fulfilment of that duty to another who has not done it therefore defendant
has not done his duty and he is liable to the plaintiff for the consequences it was his duty to
have the lamp set right, it was not set right.

As regards the projections on private land rather than on highway such projections in
themselves constitutes nuisance because in such a case there is an interference with the
neighbours absolute right to the uninterrupted enjoyment of his own land. So interference
on private property is nuisance by itself because it interfere with the plaintiff’s absolute right
of uninterrupted enjoyment of property whereas projections on highways is not nuisance in

27
(1951) A.C. 88
28
(1876) 1 Q.B.D. 314

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itself unless it causes damage to the plaintiff. Thus there is a difference between projections
on private land and projections on public highways.

Remedies for Nuisance

The following remedies exist for nuisance. They are:-

1-Abatement of Nuisance: This refers to self-help in order to stop nuisance. Generally self-
help is not allowed by the court or the law. The court usually frowns at the remedy of self-
help to avoid chaos in the society. In minor cases of nuisance, self help as a remedy may be
allowed by law considering that court cases are usually expressive and may take long to
determine.

2- Injunction: This is the most important judicial remedy in cases of nuisance. There are
many types of injunction :-

(a)Interim injunction — obtained pending the determination of the interlocutory injunction

(applicable in urgent cases).

(b)Interlocutory injunction — obtained pending the determination of the final injunction.

(c)Final injunction — this exists to prohibit one from doing something.

(d)Prohibitory injunction — this exists to prohibit one from doing something.

(e) Mandatory injunction — this exists to mandate one to do something. Injunction is a

discretionary remedy and the court has discretion to grant or refuse injunction so that even
if one has made out a good case for the grant of injunction, the court may still find a good
reason to refuse injunction. However, the court’s discretion must be exercised judiciously
and judicially.

Damages: This is the monetary compensation for any loss or injury occasioned to the
plaintiff by reason of the nuisance. There are many types of damages, namely :-

1-Aggravated damages

2-Nominal damages

3-Special damages

Defences to an Action for Nuisance

It is germane to note that some of the defences in nuisance are strictly speaking not
defences but only go to show that nuisance has not been proved. The defences 29are;

29
Available at Nuisance under Law of Torts, Law Bhoomi( accessed on 08 April,2024)

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i)That the act complained of is not unreasonable, unjustifiable, unwarranted or unlawful;

ii) That there was consent of the plaintiff or volenti non fit injuria. It is generally not a defence
that the plaintiff came into the nuisance but in appropriate cases the court may use it as a
basis for refusal or injunction such as in Miller v. Jackson.

iii) Prescription that is the defence in law which is to the effect that the plaintiff has slept over
this right for too long and has therefore lost his right to sue. At Common law in England,
where nuisance lasts for 20 years, the plaintiff can no longer sue.

iv) Contributory negligence.

v) Act of a stranger: that is, that the plaintiff has not made out any case against the defendant,
he has only succeeded in making out a case against a stranger who cause the nuisance.

vi) Inevitable accident.

Vii) Act of necessity.

viii) Statutory authorization: that is power given by statute. In exercising such powers, the
defendant must ensure that all reasonable care and skill is used and it he does not go outside
the powers given by the statute. Again, statutory defences are usually construed strictly
against the person exercising the power so as to protect the citizens. See the case of
Ekemode v. Alausa where a public officer was given power to clear inland waterways. In
exercising that power he removed some canoes from the water but in the process he
damaged a particular canoe and the court held that the power to remove a canoe is
incidental to the power to clear the waterway but damaging the canoe is not part of the
powers given to him by statue, he was therefore liable for the damage.

All in all, it is germane to note that in most cases of oil spillage, the plaintiff would not know
whether to sue for negligence, for nuisance, whether public or private or under the rule in
Rylands v. Fletcher. On how to bring the action a lot depends on the facts of each case; but,
it may be wiser to sue for all in alternatives and also add a claim simply for damages on the
basis of Ubi Jus Ibi Remedium.

Conclusion

The concept of nuisance arises commonly in everyone’s daily life, in fact, the Indian courts
have borrowed quite a lot from the English principles as well as from the decisions of the
common law along with creating their own precedents. This has helped the concept of
nuisance in the field of law develop quite extensively and assures the fairness and well being

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of all the parties which may be involved such as in the case of Private nuisance, the party
which is being affected, as well as, in the case of public nuisance, where the society at large
is being affected.

References -

I-Dr. R.K. Bangia, Law of Torts,(Central Law Agency ,24 th Ed. 2017).

2-Ratanlal & Dhirajlal,The Law Of Torts,( LexisNexis, 29thEd.2023).

3-Winfield and Jolowicz on Torts(Sweet & Maxwell 19 th Ed.2015).

4-https://www.lexisnexis.co.uk

5-https://blog.ipleaders.in

6-https://www.legalserviceindia.com

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