Reliefs against smoke and noise

The civil, criminal and statutory routes open to a person troubled by smoke or noise

Scope: Reliefs against smoke and noise as continuing nuisances. The noise rules and silence zones are covered in the note on noise pollution.

In one minute

Smoke and noise are classic continuing nuisances. A person can sue for an injunction and damages, ask a Magistrate to act, or complain to the State Pollution Control Board.

Smoke that damages property can be stopped even in an industrial area. The Air Act, 1981 treats noise as an air pollutant.

Exam focus

Frequency: Frequently asked
Usually asked as: Both (long answer and short answer)

Legal provision

Sections 38 and 40, Specific Relief Act, 1963: perpetual injunction, and damages with or instead of it.
Section 2(a), Air (Prevention and Control of Pollution) Act, 1981: "air pollutant" includes any solid, liquid or gaseous substance, including noise, in such concentration as may be or tend to be injurious to people, other living creatures, plants, property or environment.
Section 19, Air Act: the State Government may declare air pollution control areas. It may prohibit the use of fuel other than an approved fuel there.
Section 21, Air Act: no industrial plant may operate in such an area without the previous consent of the State Board.
Section 22, Air Act: no emission above the standards laid down by the State Board.
Section 22A, Air Act: where excess emission is apprehended, the Board may apply to a court to restrain it. The court must be at least that of a Metropolitan Magistrate or a Judicial Magistrate of the first class.
Section 31A, Air Act: the Board may issue written directions, including closure of an industry or stoppage of electricity and water.
Section 270, BNS and section 152, BNSS: public nuisance and the Magistrate's order to remove it.

Meaning and definition

Reliefs against smoke and noise are the remedies for a nuisance that is continuing. The harm travels through the air, so it is indirect. It is nuisance and not trespass.

Who can act against smoke or noiseHow to read this: read from left to right. Each box is one body, with what it can do. The green box is the court that grants the final order.

Affected personComplains to the Board and the Magistrate, or sues in a civil court.

State Board and MagistrateThe Board gives directions and consents. The Magistrate passes a conditional order.

Civil courtGrants a temporary or perpetual injunction and damages.

The person can use all three routes at the same time.
The Board can itself approach a court under section 22A of the Air Act.
A civil injunction is a private remedy and does not replace the Board's regulatory power.

Detailed explanation

Step 1: civil suit for injunction and damages

The affected person sues in nuisance. A temporary injunction can stop the smoke or noise while the suit is pending. A perpetual injunction under section 38 can stop it permanently. Damages under section 40 are awarded with or instead of the injunction. The injunction is the main remedy because damages alone do not stop the harm.

Step 2: the rule on smoke and fumes

In St Helen's Smelting Co. v. Tipping (1865), fumes from copper smelting works damaged trees and crops on a neighbouring estate. The Lords held that where a business causes material injury to property, the fit character of the locality is no defence. Where the complaint is only personal discomfort, the character of the place matters much more.

Example. A coal-fired brick kiln near Nagpur is surrounded by other kilns. Its smoke scorches a farmer's orange orchard. The farmer can get an injunction and damages, because the harm is material injury to property. The fact that the area is industrial is no answer.

Step 3: relief under the Air Act, 1981

Air pollution control areas can be declared under section 19, with limits on the fuels and appliances used there.
An industrial plant there needs the State Board's consent (section 21) and must not exceed the standards (section 22).
The Board can apply to a court to restrain excess emission (section 22A).
The Board can give written directions, including closure (section 31A).

The affected person can complain to the State Board to start these steps.

Step 4: public nuisance proceedings

Section 270 BNS defines public nuisance, and section 152 BNSS lets a Magistrate order its removal. Both can apply to smoke and noise.

Step 5: noise

For noise, the Air Act includes it in "air pollutant". The Noise Pollution (Regulation and Control) Rules, 2000 set the standards. A civil injunction is available against noise in the same way as against smoke.

Example. A flour mill in a Kolkata lane runs loud machines through the night. A neighbour sues for an injunction and also complains to the Board. The two steps run together.

Don't confuse: private suit and Board action

Point	Civil suit	Board action under the Air Act
Who starts it	The affected person	The State Board
Result	Injunction and damages for the plaintiff	Directions, closure or a court order restraining emission
Based on	The tort of nuisance	Breach of consent or standards

Inside the concept. An orchard owner sues the kiln for damages and an injunction. This is a civil suit.

Just outside it. The State Board directs the kiln to close for emitting above the standard. This is Board action.

Common mistakes

Saying locality is always a defence to smoke. It is no defence where property is materially injured.
Treating smoke or noise as trespass. It is indirect and so is nuisance.
Forgetting that noise is within "air pollutant" in the Air Act.
Thinking a victim must wait for the Board. Civil and Magistrate routes are independent.

Leading case laws

St Helen's Smelting Co. v. Tipping (1865)
Facts. Smelting works damaged the trees and crops of the Bold Hall estate. The neighbourhood was full of factories.

Principle. The jury direction was correct. Where a business causes material injury to property, the fit character of the locality is no defence. Personal discomfort depends greatly on the place.

Why it matters. The rule applies unless the defendant has acquired a right by prescription (long use) or agreement. They did not say locality is irrelevant to every nuisance.
M.C. Mehta v. Union of India (Taj Trapezium Case) (1996)
Facts. Industrial emissions in the Taj Trapezium Zone were damaging the Taj Mahal.

Principle. The 292 listed industries had to switch to natural gas. Those that could not had to stop using coke or coal there and relocate by 31 December 1997.

Why it matters. It shows a court controlling smoke by changing the fuel used.

How to write this answer in the exam

5-mark answer

Smoke and noise as continuing nuisance.
Civil injunction and damages.
Air Act powers of the Board.

10-mark answer

Nuisance, not trespass, because the harm is indirect.
Injunction under section 38 and damages under section 40.
St Helen's v. Tipping on fumes.
Air Act sections 19, 21, 22, 22A, 31A.
Section 270 BNS and section 152 BNSS.
Noise as an air pollutant and a conclusion.

Key points to remember

Smoke and noise are indirect, so the tort is nuisance.
Injunction is the main remedy. Damages come with it or instead.
St Helen's: locality is no defence to material injury to property.
Air Act: noise is included in "air pollutant". The Board uses sections 19, 21, 22, 22A and 31A.
Public nuisance proceedings under section 270 BNS and section 152 BNSS also apply.

Quick self-test

1. Is the industrial character of a locality a defence to smoke that damages property?

No. Under St Helen's v. Tipping it is no defence to material injury to property.

2. Which Air Act section lets the Board apply to a court to restrain excess emission?

Section 22A.

3. Does the Air Act cover noise?

Yes. Section 2(a) includes noise in "air pollutant".