T. SURYA RAO, J. ( 1 ) THE petitioners asail the proceedings dated 18-9-2000 passed by the Mandal executive Magistrate in Roc. C/777/2000. ( 2 ) UNDER the impugned proceedings, the learned Mandal Executive Magistrate imposed ban on the petitioners-Stone crushers on any stone crushing activities around Pasuvulagutta in Thanapalle village with immediate effect. ( 3 ) THE factual matrix germane for consideration for brevity and better under standing of the matter may be set-forth hereunder thus:- the first petitioner Sri Ayyappa Stone crusher was established in the year 1983 and the second petitioner Sri Durga Stone crusher was established in the year, 1994 after having obtained the necesssary licences and the requisite lease for quarrying in accordance with the provisions contained in the A. P. Mining and Mineral Concession rules, 1966. As a measure of precaution the petitioners also obtained the form of consent from the Environmental Engineer A. P. The petitioners thus have been carrying on crushing operations without any obstruction and without causing disturbance to the people in that locality for the last several years. ( 4 ) WHILE so on a complaint from one sri J. Ramachandra Reddy, a retired Police officer, the Mandal Execuive Magistrate issued proceedings in Roc. C/777/2000 dated 12-06-2000 by means of a conditional order directing the petitioners to stop blasting operations immediately and to appear before him at 11 a. m. on 16-6-2000 to show-cause as to why the order passed earlier shall not be made absolute. The petitioners appeared through their Counsel and filed elaborate objections. After due consideration of the said objections the mandal Executive Magistrate passed orders on 6-8-2000 directing the closure of Sri Rama stone Crushers and Sri Sai Srinivas Stone crushers at Kuntrapakam and permitted the petitioners to run the Stone Crushing units subject to the conditions enumerated therein. The petitioners have taken all preventive measures incurring huge expenditure of Rs. 40 lakhs each and taking the same into consideration; they were allowed to continue the operations. ( 5 ) WHILE so, the Mandal Executive magistrate issued proceedings dt. 10-9-2000 under sub-section (1) of Section 133 of the criminal Procedure Code ( the Code for brevity) on the premises that there had been law and order problem while withdrawing the proceeedings issued by him earlier dated 6-8-2000. ( 5 ) WHILE so, the Mandal Executive magistrate issued proceedings dt. 10-9-2000 under sub-section (1) of Section 133 of the criminal Procedure Code ( the Code for brevity) on the premises that there had been law and order problem while withdrawing the proceeedings issued by him earlier dated 6-8-2000. The petitioners were asked to appear before him on 18-9-2000 at 11 a. m. The petitioners complained that they were not served with any notices and ultimately on 18-9-2000 the impugned proceedings came to be issued. ( 6 ) SRI E. Manohar, learned senior Counsel appearing for the petitioners contends that the impugned proceedings are in the nature of a review which is not permissible under law. The learned senior Counsel further contends that when the competent authority under the Water (Prevention and Control of pollution) Act, 1981 has given clearance, the mandal Executive Magistrate cannot take a different approach and therefore, the impugned order is bad. ( 7 ) SRI C. Padmanabha Reddy, learned senior Counsel appearing on behalf of the respondents 3 to 8 on the other hand contends that the order passed by the learned Mandal Executive Magistrate is preventive in nature, so as to maintain the public order and tranquillity and therefore, it is recurring in nature and the earlier order passed by the learned Executive Magistrate will not bar fresh proceedings and it cannot be considered as a review. The learned senior Counsel further contends that the impugned proceedings are the final order passed by the Mandal Executive Magistrate, when the petitioners did not appear before him. The learned senior Counsel further contends that the proceedings under section 133 of the Code do not automatically stand repealed in view of the Special enactments since they are preventive in nature. ( 8 ) AFTER having heard either side and in view of the divergent contentions raised on either side, it is expedient at the outset to consider the relevant provisions under the code for brevity and better understanding of the matter. ( 8 ) AFTER having heard either side and in view of the divergent contentions raised on either side, it is expedient at the outset to consider the relevant provisions under the code for brevity and better understanding of the matter. Section 133 of the Code, which is germane in the context for consideration may be extracted hereunder thus:-"section 133: Conditional order for removal of nuisance:- (1) Whenever a district Magistrate or a Sub-Divisional magistrate or any other Executive magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers- (a) That any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b) That the conduct of any trade or occupation, of the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated of such goods or merchandise should be removed of the keeping thereof regulated; or (c) That the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or (d) That any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or the removal or support of such tree, is necessary; or (e) That any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f) That any dangerous animal should be destroyed, confined or otherwise disposed of. Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise or owning, possessing or controlling such building, tent, structure, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in. Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise or owning, possessing or controlling such building, tent, structure, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in. the order- (i) to remove such obstruction or nuisance; or (ii) to desist from carrying or to remove or regulate in sucn manner as may be directed, such, trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii) to prevent or stop construction of such building, or to alter the disposal of such substance; or (iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; (v) to fence such tank, well or excavation; or (vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be called and made absolute. (2) No order duly made by a Magistrate under this Section shall be called in question in any Civil Court. " ( 9 ) COMING in the realm of Chapter-X dealing with maintenance of Public order and tranquillity, Section 133 of the Code pertains to removal of public nuisance. A plain reading of the above provision shows that the Executive Magistrate is competent to issue proceedings under this Section upon receipt of a report from a police officer or other information and considers that nuisance should be removed from any public place. He may make a conditional order requiring a person causing such nuisance within a time fixed therein to remove such nuisance or if that person objects so to do to appear before him, on a date fixed by the order to show-cause as to why the order should not be made absolute. In other words under Section 133 (1) of the code, the Executive Magistrate should pass a preliminary order. In other words under Section 133 (1) of the code, the Executive Magistrate should pass a preliminary order. Under Section 137 of the code, the Executive Magistrate should conduct an enquiry and pass final orders as per the procedure laid down under section 138 of the Code. Section 133 (2) of the code provides that such an order passed by the Executive Magistrate under Section 138 of the Code, shall not be called in question in any Civil Court. The orders passed under section 133 (1) of the Code are preventive in nature and meant to prevent any public nuisance. On a close scrutiny of the above provisions, it is obvious thatthe jurisdiction is vested to issue proceedings in the District magistrate or the Sub-Divisional Magistrate, or any other Executive Magistrate who is specially empowered in this behalf by the state Government. Section 20 of the Code enables the State to appoint the Executive magistrates in every district. One of them shall be the District Magistrate. In any Sub-Division of the District, the Government may also appoint an Executive Magistrate as the Sub-Divisional Magistrate. Under the hierarchy the Sub-Divisional Magistrate and the Executive Magistrates shall be subordinate to the District Magistrate as per section 23 of the Code. Turning to section 133 of the Code again either the district Magistrate or the Sub-Divisional magistrate is competent to exercise jurisdiction under it. However, other executive Magistrates are not competent to exercise jurisdiction, except those who are specially empowered in this behalf by the state Government. Therefore, for an executive Magistrate to exercise jurisdiction under Section 133 of the Code, he must be specially empowered by the State government for that purpose, whereas such empowerment is not necessary for a District magistrate or a Sub-Divisional Magistrate. ( 10 ) THE impugned proceedings in the instant case have been passed by the Mandal executive Magistrate. It is not known as to whether the learned Mandal Executive magistrate has been specially empowered in this behalf to act under Section 133 of the code. No proceedings issued by the government appointing specially for the purpose has been placed before this Court nor has been articulated in the order expressly. It is not known as to whether the learned Mandal Executive magistrate has been specially empowered in this behalf to act under Section 133 of the code. No proceedings issued by the government appointing specially for the purpose has been placed before this Court nor has been articulated in the order expressly. In the absence of any such special empowerment it is obvious that the competence of the learned Executive magistrate will be at stake and any order passed by him will become an order having been passed without jurisdiction. ( 11 ) THE first respondent herein is the learned Executive Magistrate. He filed his counter resisting the present petition. In the prolix counter filed by him, it has not been mentioned anywhere that he is specially empowered in this behalf by the State government. Under the circumstances it can be taken that the first respondent who issued the impugned proceedings has not been specially empowered in this behalf by the state Government. Therefore, he is not competent to invoke jurisdiction under section 133 of the Code. In ordinary course either the District Magistrate or the Sub- divisional Magistrate should have initiated the proceedings. The order passed by the first respondent for the above reasons is an order passed without jurisdiction and therefore, not an order in the eye of law. ( 12 ) THE first respondent under the proceedings in Roc. C777/2000 dt. 12-6-2000 initiated earlier against four stone crushers including the two petitioners herein by passing a preliminary order. After conducting an enquiry and upon perusing the letter No. G-1/pcb/ro/tpt/2000-805 dated 31-7-2000 written by the environmental Engineer of the A. P. Pollution Control Board passed the final order on 6-8-2000 and having been satisfied that the petitioners got the pollution control equipment to the satisfaction of the Board directed the preliminary orders passed by him on 12-6-2000 be withdrawn against the petitioners and allowed them to run the crushing operations in accordance with the guidelines issued by the authorities under the Mines and Geology Department and under the Pollution Control Board. Having passed the final orders thus withdrawing the proceedings against the petitioners, the learned Mandal Executive Magistrate again initiated proceedings dated 10-9-2000 by passing the preliminary order against the petitioners and two other Stone crushers, and since according to the first respondent, the petitioners committed default in making their appearance pursuant to the preliminary order, he passed the impugned proceedings on 18-9-2000, in the form of another final order. Under the impugned proceedings in para-18 it has been specifically mentioned that the final orders passed by him on 6-8-2000 have been withdrawn. A perusal of the order dated 6-8-2000 passed by the learned mandal Executive Magistrate shows that the learned Magistrate satisfied himself about the installation of the pollution control equipment. However, under the impugned proceedings, the learned Executive magistrate adverted to law and order problem in addition to the problem of pollution. In fact the earlier order dated 6-8-2000 shows that a Joint meeting has been convened by the Joint Collector between the village elders of Thanapalle, kuntrapakam, owners of Stone Crushers, assistant Director, Mines and Geology, and pollution Board authorities at Tirupathi on 12-7-2000 and 27-7-2000. But curiously no law and order problem has been advered to in the earlier proceedings. As a matter of fact a perusal of the impugned proceedings by keeping it in juxtaposition with the final orders passed by the learned Mandal executive Magistrate dated 6-8-2000 shows that the orders inconsistent to say the least. Can the learned Mandal Executive magistrate withdraw the final orders passed by him earlier and initiate fresh proceedings is the moot question. While it is the contention of the learned senior Counsel for the petitioners that the Executive Magistrate cannot do so, it is the contention of the learned senior Counsel for the respondents 3 to 8 that since the orders are preventive in nature and in view of recurring cause of action, the Executive Magistrate can do so. ( 13 ) THE learned senior Counsel for the respondents 3 to 8 to substantiate his contention seeks to place reliance upon a decision of the Punjab and Haryana High court in Rana Balram vs. Pritam Singh. That was a case where the petition filed under section 145 of the Code was dismissed in limine for want of specific allegations regarding danger of breach of the peace. That was a case where the petition filed under section 145 of the Code was dismissed in limine for want of specific allegations regarding danger of breach of the peace. Therefore, fresh petition basing on the same facts making specific allegations about the breach of peace was filed. After calling for a report from the local police, the Executive magistrate passed an order. Under the circumstances it was held that if the fresh order could not be said to be in the nature of a review of the earlier order, the twin objections raised in that regard by the opposite party that the order amounted to review of the earlier order and that in view of the bar contained in Section 403 of the old code akin to 300 of the new Code. It was held that it was neither a case of review nor it was a case of acquittal by repelling both the contentions and on consideration of the fact that the earlier petition was dismissed in limine for want of necessary allegations in the petition, about the existence of danger of breach of peace. Therefore, the said judgment has no application to the present facts. ( 14 ) AS discussed supra the ground of nuisance on account of the pollution is the same in both the orders. Of course the other ground of law and order is new and has been taken for the first time in the impugned proceedings. The ground of law and order is totally alien to the proceedings under section 133 of the Code. Whether it is a problem of law and order or a public order, there are other Sections in the Code, which can effectively deal with the same. However, section 133 of the Code deals with public nuisance. Section 144 of the Code is the relevant Section, which can be invoked for preventing urgent cases of nuisance or apprehended danger. ( 15 ) THE main ground being causing nuisance, I am of the considered view that the learned Executive Magistrate cannot recall his earlier order or withdraw the same and initiate fresh proceedings. The power to withdraw his earlier order has not been clearly vested in the Executive Magistrate in view of Section 362 of the Code. ( 15 ) THE main ground being causing nuisance, I am of the considered view that the learned Executive Magistrate cannot recall his earlier order or withdraw the same and initiate fresh proceedings. The power to withdraw his earlier order has not been clearly vested in the Executive Magistrate in view of Section 362 of the Code. ( 16 ) THE learned senior Counsel for the respondents 3 to 8 further seeks to place reliance upon a judgment of the Rajasthan high Court in Lakshmi Cements vs. State and another. That was an authority for the proposition that on account of the advent of air (Prevention and Control of Pollution) act, 1981, the provisions of Section 133 cr. P. C. cannot stand automatically and impliedly repealed. The learned senior counsel also placed reliance upon the judgment of this Court in M/s. Nagarjnnn paper Mills Ltd. vs. Sub-Divisional Magistrate and Revenue Divisional Officer, Sangareddy for the same proposition. The jurisdiction continues to be vested either in the District magistrate or the Sub-Divisional Magistrate to issue necessary proceedings under section 133 of the Code, for prevention of nuisance. As a matter of that, the power or competency of the Executive Magistrate to invoke proceedings under Section 133 of the code, in view of the letter given by the environmental Engineer dated 31-7-2000 is not being questioned. Therefore, the above two judgments are not germane in the context of the peculiar facts and circumstances of this case. The question is when a competent authority or the Pollution control Board is satisfied about the existence or non-existence of any Air pollution or other pollution, can the Executive magistrate take a different opinion in regard thereto for invoking the proceedings under section 133 of the Code. As regards the Air pollution or Water pollution certainly, it is within the competence of the Board to say whether such pollution exists or not. It is only basing upon the material placed before the Executive Magistrate, he can satisfy himself and in this regard the opinion of the pollution Control Board, which is the competent authority under the relevant enactments, may also constitute the sufficient material for the Executive magistrate to come to a conclusion. But I am afraid, the learned Executive Magistrate cannot take a different opinion than what has been given by the Pollution Control board. But I am afraid, the learned Executive Magistrate cannot take a different opinion than what has been given by the Pollution Control board. Under the circumstances, although the Executive Magistrate has jurisdiction to initiate proceedings under Section 133 of the code, notwithstaning the proceedings pending before the Pollution Control Board, the Executive Magistrate is not competent to form a different opinion inconsistent with the opinion expressed by the Pollution control Board. The jurisdiction of the pollution Control Board under the Air (Prevention and Control of Pollution) Act, 1981 is different and distinct and operates in a different field. Under Section 30 of the Air (Prevention and Control of Pollution ) Act, 1981, the report given by the Government analyst or a State Board Analyst may be used as evidence. Thus either the action or inaction on the part of the authorities under the Act will not prevent the Executive magistrate in initiating the proceedings for removal of the nuisance. In that view of the matter, the-Jurisdiction of the Executive magistrte cannot be doubted. However, his competence to formulate an opinion contrary to the opinion expressed by the board or its authorities is a different aspect, where the competence of the Executive magistrate is doubted to express his satisfaction about the pollution inconsistent with the satisfaction expressed by the engineer working under the control of the board. ( 17 ) SRI E. Manohar, learned senior counsel appearing for the petitioners, on the other hand, places reliance upon a judgment of the Apex Court in Vasant Manga Nikumba and Others vs. Babit Rao Bhikanna Naidu. The apex Court, while relying upon a Judgment of the Madras High Court in T. K. S. M. Kalyanasundaram vs. Kalyani Ammap, held in para 5 as follows:"in T. K. S. M. Kalyanasundaram vs. Kalyani ammal (5 supra) the Madras High Court held that the alleged nuisance would have been in existence for a long period. The circumstance and the evidence in that case did not prove that urgency existed warranting the taking of action under Section 133. No action can be taken under this Section where the obstruction or nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the Civil Court. The circumstance and the evidence in that case did not prove that urgency existed warranting the taking of action under Section 133. No action can be taken under this Section where the obstruction or nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the Civil Court. It was also held that Section 133 is attracted only in cases of emergency and immediate danger to the health or physical comfort of the community. Accordingly, on the facts in that case it was held that there was no immediate danger or emergency for the removal of the structure offending that case. It is also settled law that recourse to section 133 could not be a substitute for the civil proceedings and the parties should have recourse to civil remedy available and should not be encouraged to taking recourse to the provisions of section 133 of the Code. "i see considerable force in the contention of the learned senior Counsel inasmuch as the stone Crusher in this case has been established long back and has been functioning since then. The learned Senior counsel for the petitioners further relies upon a Judgment of the Apex Court in C. A. Avarachan vs. C. V. Sreenivasan and Another. The Apex Court held that the omission on the part of the Sub-Divisional Magistrate to draw up a preliminary order, which is a sine qua non for initiating proceedings under section 133 of the Code and without following the procedure provided for by section 138 for the Code the order made by the Sub-Divisional Magistrate directing the appellant to permanently close the quarry operations is unsustainable and is vitiated. Of course, there has been no infraction of the mandatory provision of Sec. 133 (1) of the code in this regard. It is the contention of the learned senior Counsel for the petitioners that fixing any date for its closer is bad. In support of the said contention, the learned senior Counsel seeks to place reliance upon a Judgment of this Court in Executive Officer, gram Panchayat, T. Koteapalli vs. Dadda satvavath. This Court held that it is imperative that some time has to be prescribed in the order passed under section 133 of the Code so that the person is given opportunity to carry out the same. This Court held that it is imperative that some time has to be prescribed in the order passed under section 133 of the Code so that the person is given opportunity to carry out the same. ( 18 ) IN any view of the matter, the impugned order is not sustainable under law and is liable to be quashed as having been passed without jurisdiction and after having withdrawn the final orders passed under Section 133 of the Code, by the learned executive Magistrate, which cannot be done under law. Since the Mandal Executive magistrate is not competent to pass any orders under Section 133 of the Code, even the earlier order passed by him becomes nonest for want of inherent jurisdiction. However, this will not preclude either the district Magistrate or the Sub-Divisional magistrate to initiate any fresh proceedings under Section 133 of the Code, after recording necessary satisfaction about the existence or to take preventive measures. ( 19 ) FOR the foregoing reasons, this petition is allowed and the impugned proceedings are set aside.