In recent times public nuisance has invariably been used to address tobacco use, smoking, firearms distribution and global warming. The court considers public nuisance as a tort and they, as common law tribunal try to qualify these acts as public nuisance. This article will focus public nuisance as a tort rather than a criminal law.

Nuisance came into picture in 1970 when it was used as a weapon to tackle environmental hazards but if public nuisance is properly used as a public action, then it may deviate from its very purpose of social reform without authorizing the legislation. Like any other law, it could not proceed further unless it has been specified what exactly comes under public nuisance.

Court also should not have any absolute authority to determine which acts come under public nuisance that means all of the decisions that has been taken under public nuisance till now are just the interpretation made by the judges and maybe reinterpreted again in the near future. This research paper will discuss all the aspect of public nuisance with the case laws of USA, UK and India and finding the relevancy of public nuisance as a tort in these countries.

Introduction
In the never-ending struggle between people who wants to broaden the scope of public nuisance so as to include a cause of action for which they have suffered harm and those who wants to keep public nuisance actions only to its historical roots. These conflicting interests have forced scholars to compromise with any fixed definition of public nuisance. A theory suggests that public nuisance is not and never was a tort.

It is considered as an action through which larger public interest can be preserved. This action can be charged criminally by statutory authorities that's why public nuisance is most closely compared to criminal law and not tort in terms of conceptual and historical understanding. On contrast some says that public nuisance interferes with the enjoyment of health, comfort, security of public at large it does not affect only one individual or group, so there must be a civil action i.e., tort.

Meaning of Tort

The word tort comes from a Latin word 'tortum' which means 'to twist'. Thus, we can say that tort is not something which is straight, lawful but something which is unlawful, twisted or crooked. In English language the word tort has purely a legal meaning - wrongful act for which the law provides compensation. Actually, law imposed some duty on citizen which they have to abide and breach of that duty will constitute a wrongful act.

If an act which is done is against the criminal law, then that act will constitute as crime or if a party to a contract doesn't fulfill its promise, then it will constitute as breach of contract. Similarly, tort is also a breach of duty which has been recognized under law of torts.

Although there is no a universal definition of law of torts which can cover all the aspects unlike in contract laws, reason for saying this is tort law include different wrongs having different historical background so it is not possible to cover all of them in a single definition. Some definition given by scholars are as follows:

"Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages."[1]

"Tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust, or other merely equitable obligation."[2]

The very basic things that we can derive from these definitions are � first, the tort is a civil wrong and second, every civil wrong is not a tort.

Nuisance

In simple terms we can say that nuisance is unlawful interference with a person's use or enjoyment of land any act which is interfering with health, safety and comfort will come under the tort of nuisance. This act may include smell, smoke, noise, gas, or germs that may spread disease etc.

There are two kinds of nuisance:

• Private Nuisance
• Public Nuisance

Private Nuisance

Public nuisance is that type of nuisance in which persons right of enjoyment of property is violated by another. It can also affect another person by injuring his property or may also by only affecting the enjoyment of the property. In private nuisance, an individual usage and enjoyment of his property has been violated but not of the whole society or public at large which is not the case in public nuisance. Civil action can be filed by the plaintiff in order to receive the remedies.

Elements which constitute private nuisance are:

1. The interference that has been done by another person should be unreasonable or unlawful that means that the act committed should not be justified in the eyes of law and should be an act which a reasonable man would not do in a certain situation.
2. That interference must be with the use or enjoyment of land or with the right of the property or it may also be in the case of physical discomfort or in connection with the property.
3. There should be a foreseeable damage to the property or with the use or enjoyment of the property in order to term that act as private nuisance.

Public Nuisance

Section 268 of the Indian Penal Code talks about the definition of public nuisance as "A person is guilty of a public nuisance who does any act or is guilty of an 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."

As we can understand from its name itself public nuisance affects the society at large or certain portion of the society and effects the right of the people living in the society which can be in the form of enjoyment or usage of their property. The acts which seriously interferes with the health, comfort or safety of the common people is a public nuisance. Public nuisance is based on legal maxim "sic uteretuout rem publicam non laedas", which means you should use your property in such a way that it doesn't affect or injured the rights of public

In this article we'll dealing with public nuisance and its related aspects only.

Distinction Between Public And Private Nuisance

Public nuisance is generally considered as an interference which:

1. affects the right of public or
2. seriously effects the health, safety and comfort of sufficient number of people within certain geographical area.

While private nuisance is unreasonable interference with the enjoyment or usage of the property an individual.

Public nuisance comes under both criminal law and tort while private nuisance comes under tort only. A relator action can be taken by the attorney general for civil action even though the frequency has been considerably controlled by the public law controls. In private nuisance an individual that has suffered has to bring an action at all times against the person causing interference.

Public nuisance covers wide range of interest even where the claimant doesn't have interest, as is generally thought to be in case of private nuisance. Private injury damages can certainly be claimed in public nuisance by showing a special damage as compared to others. In private nuisance when we look into the case of Rylands v. Fletcher the recovery of the damages is not free from doubt. Nuisance focuses more on the prevention of the damage then to provide the remedies after happening of that act which can be in the form of injunction.

Public Nuisance
Section 268 of IPC defines offender of public nuisance as someone (i) who have done any act or omitted to do certain act which is supposed to do (ii) causes any kind of damage, annoyance or interfered with the enjoyment of (iii) to the individual or public who has right to use that property in their vicinity or which causes any damage, obstruction and annoyance to anyone who has the opportunity to use any public right.

Meaning of public
In section 12 of the IPC, 1860, the term "public" is defined. Any class of the public or any group is included in the term "public." As a result, a class or group living in a certain location may be considered "public." The term 'public' refers to the whole human population, as well as a nation, state, or community. However, as defined by the IPC, it covers any public class, no matter how tiny, that is large enough to become a class and eliminates the possibility of a single individual. As a result, the terms 'community' and 'public' are used interchangeably here, and a community can be a sect, race, or group of men united on any particular concept. The term 'public' can refer to a class or group of people who live in a certain area.

History of Public Nuisance
In contrast to other forms of tort proceedings, public nuisance law has been defined as an "impenetrable jungle" that "elude[s] clear definition" and is more simply "negatively defined." In general, a public nuisance is "a person's inappropriate use of his or her own property that works to impair the public's rights." It's a component of the larger social contract to which everyone is a signatory. In its oldest form, public nuisance was a criminal offence meant to stop acts that were seen to be harmful to the general public's welfare. Such actions were seen to be abuses of the Crown's rights, and as a result, they were prosecuted as a crime.

However, over the period, public nuisance legislation has evolved into a more flexible remedy for protecting public rights such as "roadway safety, air and water pollution, disorderly behaviour, and public health." Public annoyance eventually evolved into a cause of action that allowed private citizens to file claims provided they could show that they had experienced a "special" or "precise" damage.

Is it Tort or Crime?
Public nuisance is both a tort and a crime, and the definitions of both of these concepts are almost similar, with the exception that a private individual can only claim for the tort if he or she suffers damage in addition to the effect on the wider public. Unlike other offences of equal severity, public nuisance does not require the offender to have meant or been irresponsible about whether his actions produced the appropriate type of injury. The blame criterion in a crime is the same as in a tort: the defendant must have reasonably foreseen the consequences of his or her conduct or omission.

Punishment
The punishment for causing a public disturbance is dealt with under Section 290 of the Indian Penal Code. Any individual found guilty of causing a public disturbance is subject to a fine of up to 200 rupees, according to the law. However, Section 291 states that if an injunction has been issued against the defendant and he continues to engage in nuisance behaviour, he will be sentenced to a term of imprisonment of up to 6 months, a fine, or both.

Interference with a Public Right
To be held accountable for public nuisance the act has to interfere with the right which is common to all people. This element is also used to differ public from private nuisance that means only rights which are common to public and are not only for some groups of individuals are protected under public nuisance. It is not like everyone has to be assaulted, cheated, robbed individually to be held accountable and it is also a very important point because cause of action that arises in negligence can't absolutely use in public nuisance.

Finally, not only the right but the injury that has been sustained should be public which is also an important element in product liability cases in which for example let's say people bought wine bottle from a shop end that wine was not safe for drinking purpose so the people affected by the bottle maybe on a very large scale but they are only discrete number of people who bought the wine from this shop only. So, this product will not come under public nuisance.

Court has also been cautious to not broaden the scope of public rights. For example, in recent case it was argued whether sell of firearms is interfering with public right. Here court refused to take this into the scope of public right.

Unreasonable Interference
Every interference with the public right will not constitute public nuisance. That interference must be unreasonable or unjustified and any reasonability test should be applied to consider whether the act committed was unreasonable or not. Plaintiff has to prove that defendant's act was unreasonable to claim the compensation. Considering this some court has also free the manufacturers from the liability of firearms because they can't foresee the usage of those arms.

One factor which determines unreasonable interference is the violation of regulation or statute. These regulations and statutes often use to determine public nuisance in an abroad way which is not required in these types of cases. Defendant must refrain themselves from using public nuisance with the elements required for cause of action in a statute or regulation.

Control of the Nuisance
Some court said that the cause of action which has been raised should be in control of the person that have committed it and this is logical too because plaintiffs in these causes of action generally seek abatement of some certain activity, which cannot be satisfied by a defendant without control over the nuisance.

On the other hand, some courts have also refused this rationale because they think control requirement is not necessary in public nuisance it is merely an element to determine the damages or cause. They said that control is not a different element it is relevant factor in determined the proximity and court's ability to release appropriate injunction. For example, manufacturer of firearms has the main defense argument that as they sold the firearm chain of causation breaks not merely that they lacked control over plaintiff's claim.

Case Laws:
India
Ram Raj Singh v. Babulal[3]
In this case court has recognized the private nuisance that has been arising from public nuisance.

Fact:
was such that plaintiff was a doctor and he had clinic in that place he lives in. The same area defendant also used to work in his brick powdering mills. The plaintiff filed a case again defendant by saying brick powder is polluting the atmosphere and also reaching his chamber which is causing inconvenience to his patient. He also mentioned about the machine which is used by defendant and has not taken permission from municipal board.

Issue:
was whether defendant is liable for public nuisance because he claimed that bricks used to be put in a moisture before actually using it to avoid dust also, he said that the machine is causing no noise pollution.

Court held that the dust coming out of the mills of the defendant is causing inconvenience to the general public because the red powder is visible on the clothes of the people sitting outside and is also health hazard. Court granted special damages to the plaintiff because he suffered more damage as in reduction in no. of patients. Also, the court said about the substantial injury that means when do not have to wait for actual damage but we can seek injunction to avoid that nuisance or can get compensation.

Municipal Council, Ratlam v. Shri Vardhichand & Others[4]
The case is related to overcoming environmental issues and the responsibility of statutory bodies to act.

Fact:
People living in Ratlam city of Madhya Pradesh filed a complaint to the sub magistrate divisional against the municipality of that area which is not constructing appropriate drains because of which there's a lot of stench and stink in that area. The sub divisional magistrate of Ratlam asked the municipality to setup a proper plan within six months and when they could not do that the case was brought before the Supreme Court. Municipality defended themselves by saying that they don't have appropriate funds to construct the drains.

Issue:
Whether municipality's unavailability of fund will save them from fulfilling their liability.

Supreme Court upheld the decision of High Court and said that unavailability of funds is not an excuse and they have the duty to perform under a statutory authority towards the public.

UK
Attorney-General v PYA Quarries Ltd [1957][5]
In this case court said that substantial number of private nuisances constitutes a public nuisance.

Fact:
The defendant was the owner of quarry and he used blasting technique which caused a lot of noise and emitted huge quantity of dust, vibrations interfering with the enjoyment of the property for the people living there. Plaintiff asked for an injection to prevent the continuation of nuisance. Defendant claimed that he was liable for private instead of public nuisance because the damage was happening to only particular people in that area and thereby not bound by injunction prohibiting public nuisance.

The issue was whether defendant's action was private or public nuisance. What exactly is the difference between public and private nuisance and when we can determine the private nuisance had become public nuisance.

The blast that the defendant was doing can lead to a public nuisance and so the injunction can be granted. While it is difficult to differentiate between private and public nuisance, we can say a public nuisance is the one where it affects the reasonable comfort or safety of particular group and what constitutes a group depends on the facts and circumstances of the case.

Actually, it is impossible to define certain number of people and call it a public nuisance. Public nuisance is too indiscriminate that it doesn't even expect any individual to take the duty to stop it instead the it is responsibility of society at large and this is what happened in the case, injunction was granted.

Campbell v Paddington Corporation [6]
In this particular case compensation was granted apart from the public nuisance because of the special injury.

Fact:
was such that plaintiff was the owner of the place from where one can see the funeral of King Edward VII. Hence, she allowed people to come over her place in exchange of money to see the funeral but a day before the event defendant constructed a stand on the road to see the funeral clearly and because of this there was reduction in the price leading to the loss of plaintiff and then she filed case against defendant owing compensation under public nuisance.

Issue:
was whether the stand constructed on a highway will come under public nuisance or not.

The court held that the defendant was liable for constructing a stand on an open highway and in front of plaintiff's building. The court reasoned that the plaintiff had a right of action against the company since she suffered loss more than any other general public due to nuisance.

USA:
Missouri v. Illinois & Sanitary District of Chicago[7]
In this particular case the court applied the formula of remoteness which was also use U.S. Supreme court's first Interstate pollution case.

Fact:
was such that state of Missouri in USA filed a case against state of Illinois in which it said that city of Chicago discharge sewage into Mississippi River as a public nuisance actually city of Chicago has reversed the stream of Chicago Rovers so that it could not go into Lake Michigan and pollution will flow into Mississippi River. State of Missouri said that reverse flow has poisoned that river and caused typhoid to the people living there.

Issue:
was whether state of Illinois will be liable for public nuisance by throwing sewage into Mississippi River and indirectly causing typhoid to people living there.

The court rejected the nuisance claim on the basis of causation. Justice Holmes said that the sewage thrown 350 miles downstream and the disease discovered was so far away and too remote for any disease to occur. The state also failed to prove that typhoid bacteria flow through the river. Also the industries which is already located in the state of Missouri discharge such practices as well. Hence the court said that more evidence of causation may lead to a different result however that is not the case now and gave the judgement in favour of Illinois.

St Helen's Smelting Co v Tipping [8]
In this case court has explained the difference between the enjoyment of land and nuisance which causes the damage to the property. The decision whether the defendant has committed nuisance will depend upon his type and frequency of interference alleged and for the damage of property plaintiff only need to show that the damage has been occurred because of defendant.

Fact:
of the case was such that plaintiff purchased a land which is over thousands of acres and this land was nearby defendant's smelting factory which has been in operation for a very long time. This factory produces toxic gases as a result of its manufacturing which is often considered to be a normal in the part of smelting company. There were damages to the plaintiff's property and he sued for compensation under tort of nuisance.

Issue:
was that whether the defendant has right to carry on his business who is discharging smelt or whatever as a result of the industry or whether defendant's act will come under nuisance.

The plea was allowed and the court said that it is not a defense to say that the plaintiff himself came to that place where smelting operation was already going on. While the court accepted that smelting operations are not unlawful and neither was in place where there could be any nuisance expected. However, there should be a difference between unreasonable interference to the enjoyment and damage occurred to the property. Finally, the court held defendant liable.

Conclusion
There has been a strong urged by the scholars to abolish this indefinite extensive offense as public nuisance and it will not have any harmful effect on country's legal system.

However, there are some contrary viewpoints also who said that instead of abolishing the whole concept we can make changes in the act itself otherwise we have to make "general offence of doing anything which creates a major hazard to the physical safety or health of the public" to fill the gaps that can occur in the absence of public nuisance in this way we can keep a check on those individuals only who try to disrupt public peace they can be polluters or environment destroyers and also cause less disturbance then the one which can occur by abolishing public nuisance altogether.

In conclusion I want to say there are some ambiguities in this law which needs to be addressed and for that we don't need to abolish it at all but we need some affirmative changes to serve its purpose of maintaining public peace.

References:
Bibliography
Journals

• Howard L. Oleck, Nuisance in a Nutshell, 5 Clev-Marshall L. Rev. 148 (1956)
• Thomas W. Merrill, Is Public Nuisance a Tort? 4(2) J. TORT L. ii (2011).
• Mass Torts, Volume 8, Number 1, Fall 2009. � 2009 by the American Bar Association
• The Cambridge Law Journal , Mar., 1989, Vol. 48, No. 1 (Mar., 1989), pp. 55-84
• �2018 IJLMH | Volume 2, Issue 1 | ISSN: 2581-5369

Websites

• https://blog.ipleaders.in/the-tort-of-nuisance/
• https://www.britannica.com/topic/public-nuisance

Others

• Simplification of Criminal Law: Public Nuisance and Outraging Public Decency, A report by law commission of UK

End-Notes:

1. MLA. Winfield, Percy Henry, Sir, 1878-1953. Winfield and Jolowicz on Tort. London: Sweet and Maxwell, 1971.
2. Salmond, John W. (John William), Sir, 1862-1924. Salmond on the Law of Torts. London: Sweet & Maxwell, 1973.
3. AIR 1982 All 285
4. 1980 AIR 1622, 1981 SCR (1) 97
5. 1957 2 QB 169
6. 1911 1 KB 869
7. 180 U.S. 208 (1901)
8. 1865 11 HL Cas 642