JUDGMENT 1. - Through this misc. petition under section 482 Cr.P.C., petitioner Bhagwan Dass seeks the quashment of the proceedings against him under section 133 Cr.P.C. pending before the SDM, Anupgarh. 2. The facts leading to this petition are these. Petitioner is the owner of ice factory situated in the residential area of village Rawla Tehsil Gharsana. There was leakage of Ammonia Gas from the factory in the morning of 10.7.99. The inhabitants of the area sent a representation to the Chief Minister of Rajasthan. The Patwari of the area made a report to the S.D.M., Anupgarh that though there was no damage caused by the leakage of Ammonia Gas on 10.7.99 yet any time there may be accident as the factory is located in the residential area. On 12.7.99 the inhabitants of the area filed an application under section 133 Cr.P.C. seeking the closure of factory. It was alleged that because of the leakage of the Ammonia Gas on 10.7.99 children had problem in respiration, they had vomitings and there was irritation in their eyes. Affidavits were filed in support of the application. The learned S.D.M. after hearing the counsel for the applicants (respondents in this petition) found a prima facie case to proceed under section 133 Cr.P.C. Observing that the ice factory was having adverse effect on the health of the inhabitants, and it was a public nuisance, he registered a case and restrained the petitioner from running the factory upto 27.7.99 on which date they could appear and show cause against the order. 3. On the same day, the petitioner appeared in the Court of S.D.M. and filed two applications. In one application, it was stated that though there was leakage of arnmona gas on 10.7.99 yet it did not cause harm to anyone. it was also stated that the factory was the only source of income of the petitioner and the closure of the factory would cause him a loss of Rs. 5000/-per month which is the minimum charges to be deposited in the RSEB. In another application, the petitioner requested that he may be permitted to run the ice factory for 4-5 days so that the milk which was already in process might be utilised. 4. 5000/-per month which is the minimum charges to be deposited in the RSEB. In another application, the petitioner requested that he may be permitted to run the ice factory for 4-5 days so that the milk which was already in process might be utilised. 4. The learned SDM recalling the earlier order directed that the petitioner could get the milk product by operating deep fridge plant but the plant of Ammonia Gas shall not be operated. 5. Mr. Joshi contended that the order of temporary injunction under section 142 Cr.P.C. has been passed without making a preliminary order under section 133 Cr.P.C. and therefore, the order is liable to be quashed. His further contention was that the Magistrate could not stop the running of the factory, and as he had stopped the running of the factory upto 27.7.99 the order should be quashed. He cited the cases of Tara Chand v. State of Rajasthan, 1981 Cr.LR, (Raj.) 273 , Mohammad Refique v. State of Rajasthan 1985 RLW 208 , Smt. Chen Devi v. State of Rajasthan (1998(2) WLC (Raj.) 337 : 1998(1) RCC 468 , Suresh Kumar v. State of Rajasthan 1998(2) RCC 106 and Shyam Sunder v. State of Rajasthan 1998(3) WLC (Raj. 644: 1998(2) RCC 325 . 6. Mr. Raeta, learned counsel for the respondents, contended that as running of the factory, in which Ammonia Gas was used, was hazardous to the inhabitants residing there, and therefore, the learned SDM was right in passing the impugned order. Pointing out that the petitioner has established the factory without obtaining the clearance certificate from the concerned Gram Panchayat, contended that the certificate obtained from the different Gram Panchayat does not justify the running of the factory in the residential area. Relying on the cases of Smt. Ajeet Mehta v. State of Rajasthan, 1989(1) 598 and Atam v. Bulakidas (S.B. Civil Revision Petition No. 12/96) decided on 4.7.98 he submitted that the petition should be dismissed. 7. I have considered the above arguments. There is a preliminary order passed on 12.7.99 when the S.D.M. observed that having gone through the to record he was satisfied that there was prima facie case and that because of the existence of the factory in the residential area then was adverse effect on the health of the residents and it was a public nuisance. There is a preliminary order passed on 12.7.99 when the S.D.M. observed that having gone through the to record he was satisfied that there was prima facie case and that because of the existence of the factory in the residential area then was adverse effect on the health of the residents and it was a public nuisance. The order obviously has been passed under section 133 Cr.P.C. There is thus no merit in the contention of Mr. Joshi that an order under section 142 Cr.P.C. has been passed without passing an is order under section 133 Cr.PC. 8. Of course, in the first order passed on 12.7.99 the SDM had directed the closure of the factory but in the second order he made it clear that the petitioners could run the factory upto 15.7.99 without operating the plant which was related to ammonia Gas therefore, it cannot be said that. the SDM has ordered the closure of the factory. It is significant to point out that in his application the petitioner himself wanted to run the factory for 4-5 days only to utilise the milk which was already in process. He did not make a request to allow him to run the factory upto 27.7.99. Moreover, the order permitting the petitioners to run the factory upto 15.7.99 only was passed on the application of the petitioner himself. 9. Under Section 133(1)(b) of the Code of Criminal Procedure, if the Magistrate is satisfied that a particular trade or occupation or keeping of any goods or merchandise is injurious to health or physical comfort of the community, he may make a conditional order requiring the person causing to such nuisance. Under clause (a) of sub-section (1) of Sec 133 Cr.P.C., the Magistrate may make a conditional order requiring the removal of public nuisance. It cannot be accepted that the leakage of ammonia Gas was not injurious to health or physical comfort of the inhabitants. At this stage there is no cause to disbelieve the averments made in the application that the leakage of ammonia Gas had caused respiration problem to the children, irritation in their eyes, and the children had started vomiting. The learned Magistrate was perfectly justified in making a conditional order under section 133 Cr.P.C. 10. In the case of Mohd. At this stage there is no cause to disbelieve the averments made in the application that the leakage of ammonia Gas had caused respiration problem to the children, irritation in their eyes, and the children had started vomiting. The learned Magistrate was perfectly justified in making a conditional order under section 133 Cr.P.C. 10. In the case of Mohd. Rafiq v. State of Rajasthan (supra), it was noticed that the S.D.M. had not passed the conditional order, but straightway passed the final order without hearing the other side. Not only that, in that case without any prayer in the application of the complainant, the Court had directed the removal or the factory from the premises. In these circumstances, this Court held that no order under section 133 Cr.PC. could be passed without notice to the other side. It is not always necessary to issue notice to the other side before making conditional order under section 133 Cr.P.C. In any case, in the instant matter, the order was passed after the petitioner appeared and filed his application, it cannot therefore be said that the order was passed without affording an opportunity of hearing to the petitioner. 11. The case of Suresh Kumar (supra), it may be stated is based on the ruling of Mohd. Rafiq (supra). The learned Judge disposed of the case following the case of Mohd. Rafiq. Since the ratio of Mohd. Rafiq (supra) is about the final order u./s. 133 Cr.P.C. the ruling of Suresh Kumar (supra) which is with regard to an order under section 142 Cr.PC., cannot be considered an authority on the point that an order under section 142 Cr.PC. cannot be passed without hearing the other side. 12. As to the case of Tara Chand (supra), it is noticed, the factory was not established in the residential area but it was located in the industrial area and permission had been obtained to run the factory from the municipality and the other concerned authorities. This Court therefore held that it was not proper for the S.D.M. to have passed an order closing the factory itself further observing that an order could have been passed abating the nuisance of ammonia Gas. 13. In the instant case, as already stated, the petitioner appeared before the S.D.M. on the same day on which the order was passed and on his own request. 13. In the instant case, as already stated, the petitioner appeared before the S.D.M. on the same day on which the order was passed and on his own request. the running of factory was allowed upto 15.7.99 restraining only the is working of plant of ammonia Gas. Moreover, in the instant case, the factory is being run in the residential area and without the permission the Gram Panchayat in whose jurisdiction the village was situated. The No Objection Certificate filed by the petitioner was obtained by him from Gram Panchayat Rojari. At the time of arguments, it was frankly conceded by Mr. Joshi that the village Rawla was not situated within the territorial jurisdiction of Gram Panchayat, Rojari, and it is situated in the territorial jurisdiction of 8 P.S.B. Panchayat and this Gram Panchayat is functioning since 1988. The respondents have filed copies of two certificates granted by Sarpanch, Gram Panchayat 8 P.S.D. (B) stating that the Gram Panchayat 8 P.S.D. (B) was established in 1988 and it had never issued to objection certificate to the petitioner to establish ice factory in the village. It is thus obvious that the ice factory of the petitioner is established in residential area without obtaining no objection certificate from the concerned Gram Panchayat. As such, the ruling of Tara Chand (supra) does not help the petitioner. 14. in the case of Smt. Chen Devi (supra) and Shyam Sunder (supra) the learned Single Judge has observed that the Executive Magistrate while passing an order under section 142 Cr.PC. must apply his judicial mind and he should satisfy himself as to the existence of imminent danger or injury of serious kind. There cannot he any quarrel with the legal position. It is the duty of the Magistrate to apply his judicial mind before passing an order. In the state case, the impugned order clearly shows that the Executive Magistrate has applied his judicial mind and as he was satisfied with the material on record, he passed the impugned order. 15. On a careful consideration of the material on record, it cannot be said that the learned Magistrate has committed any error in passing the conditional order under section 133 Cr P.C. and in restraining the petitioner from running the plant of ammonia Gas. 15. On a careful consideration of the material on record, it cannot be said that the learned Magistrate has committed any error in passing the conditional order under section 133 Cr P.C. and in restraining the petitioner from running the plant of ammonia Gas. The petitioner has ample opportunity to show cause against the order and the learned Magistrate after considering the material on record and hearing both the parties will pass appropriate order. For the present there is no cause to interfere with the impugned orders. 16. Consequently, the petition, being devoid of merit, is dismissed.Petition dismissed. *******