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2019 DIGILAW 1019 (GUJ)

Mulubhai v. State of Gujarat

2019-10-21

B.N.KARIA

body2019
JUDGMENT : B.N. Karia, J. 1. By preferring this revision application under Section 397 read with Section 401 of the Code of Criminal Procedure 1973 (In short "CrPC"), the applicant has challenged the impugned order dated 1st March 2018 passed by the Sub Divisional Magistrate, Khambhalia in Case No. Criminal/133/2/2017 and requested to direct the District Magistrate Devbhoomi Dwarka to adjudicate and decide Case No. Criminal/133/2/2017 on merits and in accordance with law along with further prayer made in para 37(D), 37(E) and 37(F) of the application. 2. Short facts of the present case may be summarized as under: 2.1 As per the contents of the applicant, because of severe noise pollution created by the respondent no. 3 Company in production of calcined bauxite and without any safeguards, company stored raw materials and semi finished bauxite open to air in a place outside and inside the Company's premises, which is dangerous to life and health, more particularly of the fact that the residential premises and two primary schools and hospital are situated near the Company and complaints thereof were forwarded to the authorities to look into the aspect of nuisance. The applicant further contended that on 28th December 2015, a complaint was presented by the residents of village Harshadpura, Taluka: Khambhalia, Dist: Devbhumi Dwarka, by which, it was brought to the notice of the authority that conduct of trade and occupation of one M/s. Bombay Minerals Limited is injurious to the health and physical comfort for students and public, and therefore, a prayer was made to inquire into the complaint. Thereafter, also another complaint dated 23.11.2016 was made to the Regional Manager, Gujarat Pollution Control Board about the pollution of air remission by company-respondent no. 3. As nothing was heard from the authority and no action was taken by the concerned authority, applicant approached the District Magistrate on 4th April 2017 under Section 133 of the Code of Criminal Procedure 1973, and prayed for initiation of inquiry in relation to nuisance. That, in consideration of representation dated 23.11.2016 and 04.04.2017, Gujarat Pollution Control Board (In short "GPCB") made a surprise visit of the respondent company and prepared a site visit report dated 20.04.2017. GPCB directed the respondent no. 3 to take remedial measures in the interest of residents and to control the pollution. That, in consideration of representation dated 23.11.2016 and 04.04.2017, Gujarat Pollution Control Board (In short "GPCB") made a surprise visit of the respondent company and prepared a site visit report dated 20.04.2017. GPCB directed the respondent no. 3 to take remedial measures in the interest of residents and to control the pollution. As per the contents, the respondent company failed to comply with the aforesaid directions issued by the GPCB and continued illegal activities of production of calcined bauxite. However, report dated 20.04.2017 was available with the District Magistrate, Devbhumi Dwarka, illegal activities of the respondent company is continued and no proper action was taken under Section 133 CrPC. That, on 22.11.2017, District Magistrate was sitting tight over the complaint, applicant has approached this Court by filing Special Criminal Application No. 9111 of 2017 and prayed to issue direction against the District Magistrate to decide the complaints in accordance with law. That, this Court was pleased to pass an order dated 27th November 2017 directing the District Magistrate to decide the complaints in accordance with law and take an appropriate decision within a period of four weeks from the date of receipt of the writ of the order. 2.2 That, thereafter on 5th January 2018, Resident District Additional Collector directed Prant Officer, Khambhalia, GPCB Jamnagar and Sub Divisional Magistrate (SDM) Khambalia to carry out joint inspection of the unit. That, on 11th January 2018, a joint visit-inspection in relation to activities of Ashapura Mines @ Bombay Minerals was carried out in presence of the applicant by government officers and panchnama was drawn by SDM, Khambhalia and report was prepared by the GPCB. Thereafter, on 17th January 2018, SDM Khambhalia submitted a panchnama dated 11.01.2018 drawn at the site of Ashapura Mines Company Ltd. @ Bombay Mineral and requested the District Magistrate to take/issue necessary order against the company. That however, District Magistrate under obligation to discharge his duties in accordance with law, more particularly, in the facts of the present case, as there was direction of this Hon'ble Court to decide the complaints in accordance with law, on 29th January 2018, the District Magistrate, Devbhoomi Dwarka directed GPCB to take steps in accordance with law and submitted a report to him. That, by communication dated 7th February 2018, GPCB informed the District Magistrate, Devbhoomi Dwarka about the closure order with effect from 31st January 2018 passed against the unit and electricity supply within a period of 15 days was directed to be discontinued until further orders. That, after 11th January 2018, no communication was received by the applicant nor any notice from the District Magistrate. That, unit started production activities, which was directed to be discontinued by the GPCB vide order dated 7th February 2018. That, the applicant immediately approached the office of the District Magistrate and inquired about the proceedings. That, the applicant was informed that necessary information will be communicated to him. That, applicant made an application under the Right to Information Act and demanded copies of the proceedings carried out by the District Magistrate in compliance of the order of this Court dated 27th November 2017 passed in Special Criminal Application No. 9111 of 2017. That, in consideration of the application dated 26th April 2018, the documents were supplied to the applicant by the office of the District Magistrate disclosing that in compliance of order passed by this Court, a joint site visit was made and GPCB was directed to initiate proceedings and to take steps in accordance with law and submit report to the office of District Magistrate. That, on 31st January 2018, GPCB passed an order for closure of the unit and discontinued of electricity within 15 days from the order dated 31st January 2018 till further order. That, SDM Khambhalia, vide order dated 1st March 2018, disposed of the proceedings under Section 133 CrPC. That, at no point of time, the applicant has received any notice whatsoever in any manner from the District Magistrate, Devbhumi Dwarka in relation to proceeding of Case No. 2 of 2017 registered upon complaint made by the applicant under Section 133 of CrPC. That, order dated 1st March 2018 passed by the SDM Khambhalia is illegal, without jurisdiction and in breach of principles of natural justice and contrary to the scheme of Section 133 of CrPC. That, order dated 1st March 2018 passed by the SDM Khambhalia is illegal, without jurisdiction and in breach of principles of natural justice and contrary to the scheme of Section 133 of CrPC. Initially, the present applicant has preferred Special Criminal Application No. 7599 of 2018 and on 26th August 2019, the applicant sought permission to convert present proceedings into the revision proceedings under Section 397 r/w section 401 CrPC and permission sought for by the applicant was granted and registry was directed to do the needful as per the rules. Hence, this revision application is converted by the registry. 3. On a joint request made by learned advocate for the respective parties, this matter is taken up for final hearing. 4. Notice. Learned APP waives service of notice for and on behalf of the respondent-State and learned advocate Mr. S.N. Thakkar waives service of notice for and on behalf of the respondent no. 3. 5. Heard learned advocates for the respective parties and learned APP for the respondent-State. 6. It was submitted by learned advocate for the applicant that the impugned order passed by the learned SDM, Khambhalia on 1st March 2018 without issuing any notice to the present applicant or without giving any opportunity of making effective representation is illegal, arbitrary and perverse. That, no opportunity of hearing was given to the present applicant, however, there was one of the informant in lodging the complaint against the respondent No. 3. That, disposing of the proceedings by an order dated 1st March 2018 concluding that GPCB is directed to take necessary proceedings and submitted a report is contrary to the scheme of Section 133 CrPC. It is further argued by learned advocate for the applicant that the visit report of the GPCB and panchnama drawn by the officer under the order passed by District Magistrate in unequivocal terms discloses the factum of illegality committed by the respondent company. That, the order dated 7th February 2018 communicated by GPCB to District Magistrate through RDC was required to be considered by the District Magistrate and injunction must have been granted on same terms in exercise of powers under Section 142 CrPC. That, the order dated 7th February 2018 communicated by GPCB to District Magistrate through RDC was required to be considered by the District Magistrate and injunction must have been granted on same terms in exercise of powers under Section 142 CrPC. The SDM Khambhalia without any authority under the law and without any jurisdiction as well as without following the mandate of this Court, has disposed of the proceedings as per order dated 1st March 2018 in breach of principles of natural justice, which has resulted into failure of justice. That, in the present case, impugned action of public authorities smacks malafide and for extraneous consideration, the proceeding is disposed of without any adjudication as per scheme of section 133 of CrPC. It is further submitted that as on date, nuisance is in existence, which is not permissible in law and respondent no. 3 Company is carrying of its illegal activities against the interest of people and at the cost of living people, which may not be allowed to continue to secure the ends of justice. That, serious consequences would be surfaced if immediate measures are not taken to prevent imminent danger and/or injury which is serious one in view of the fact nuisance is continued in the area of two running primary schools, hospital and residences of the people and that the life and health of the students, patients and people are in imminent danger. That, respondents no. 1 and 2 have failed in discharging their duties under the provisions of law in its true spirit and letters. That, the activities of manufacturing of bauxite is highly injurious to the health of the people and creates nuisance which is danger for life and health of the people. In support of his arguments, learned advocate for the applicant has relied upon the following authorities: 1. Harihar Polyfibers and Anr. V. The Sub Divisional Magistrate, reported in 1997(1) ALT Cri. 946, 2. Municipal Council, Ratlam v. Shri Vardichan and Ors, reported in (1980) 4 SCC 162 , 3. Nagarjuna Paper Mills Ltd. v. Sub Divisional Magistrate and Ors, (Andhra Pradesh High Court) 4. 1976 GLR 979 7. Learned advocate for the applicant drawn attention to Section 251 to 254 of CrPC of summons case and submitted that in absence of the complainant, no evidence would be available with the District Magistrate. Nagarjuna Paper Mills Ltd. v. Sub Divisional Magistrate and Ors, (Andhra Pradesh High Court) 4. 1976 GLR 979 7. Learned advocate for the applicant drawn attention to Section 251 to 254 of CrPC of summons case and submitted that in absence of the complainant, no evidence would be available with the District Magistrate. That, evidence can only be recorded in presence of the respective parties. That, the impugned order passed by the SDM, Khambhalia clearly violates the principle of natural justice and not complied with the directions issued by this Court in Criminal Revision Application preferred by the present applicant. Hence, it was requested by learned advocate for the applicant to quash and set aside the impugned judgment and order dated 1st March 2018 passed by the Sub Divisional Magistrate, Khambhalia in Case No. Criminal/133/2/2017 and requested to direct the District Magistrate Devbhoomi Dwarka to adjudicate and decide Case No. Criminal/133/2/2017 on merits and in accordance with law. 8. Learned APP for the respondents No. 1 and 2 have submitted that no illegality was committed by the SDM, Khambhalia while passing the impugned order disposing the issue. That, authority has followed required procedure under the provisions of CrPC and no illegality was committed by the authority. It is further submitted that the dispute is pertaining to the respondent no. 3, and therefore, considering the facts of the case, this court may pass appropriate order. 9. Learned advocate for the respondent no. 3 has strongly opposed the submissions made by learned advocate for the applicant and supported the impugned order passed by the SDM Khambhalia in favour of the respondent no. 3. It is further submitted that the plant/factory of the respondent no. 3 company was set up in the year 1983-84 and the residential premises, primary school and the hospital were established much thereafter i.e., more than two decades. That, the applicant is a resident of Sanjaynagar and was aware with the fact that the hospital as referred to was set up only in the year 2014. However, the applicant made an attempt to show that the calcinations plant/factory was set up by the respondent no. 3 in the residential area. That, production of calcined bauxite at the factory/plaint of the company does not create any pollution, as alleged in the petition. It was further submitted that there is no usage of caustic soda as alleged in the petition. 3 in the residential area. That, production of calcined bauxite at the factory/plaint of the company does not create any pollution, as alleged in the petition. It was further submitted that there is no usage of caustic soda as alleged in the petition. That, caustic soda is not required to be used in Calcination of Bauxite and there is no hazardous process carried in the calcination. That, even GPCB has granted permission for calcination of bauxite and does not recognize the said process as hazardous process. That, the respondent no. 3 is having valid lease for extraction/excavation of bauxite since the year 1953, which is not in the vicinity of the plant sought to be projected, but in a village Mewasa, which is approximately 50 km away from the factory premises and therefore, question of the said mining activity causing damage to the applicant or to the residents of Sanjaynagar clearly does not arise. That, petitioner has produced an incomplete copy of the impugned order which contents three pages and he has deliberately chosen not to produce the clean page of the impugned order wherein learned SDM has recorded his discussion and findings of the case. That, as per the directions issued by this Court in Special Criminal Application No. 9111 of 2017, respondent no. 2 directed the Regional Officer, GPCB and Sub Divisional Officer, Khambhalia to conduct a joint inspection of the plant/factory of the respondent no. 3 and upon receiving the report dated 11th January 2018, the Collector, vide communication dated 29th January 2018, directed the Prant Officer, Khambhalia to initiate proceedings under Section 133 of CrPC against the respondent no. 3-Company and to report the same. That, the closure order dated 31st January 2018 of the factory/plant of the respondent no. 3 was issued by the GPCB in exercise of its powers under Section 31(A) of the Air (Prevention and Control of Pollution) Act, 1981. Thereafter, an application was filed by the respondent no. 3 on 05.02.2018 before the competent authority seeking revocation of the closure order in prescribed form No. D-7. That, remedial measures were taken to control the pollution by the respondent No. 3 which were shown in the application for complying with the pollution norms along with all the required documents. Thereafter, the SDM, Khambhalia, as per the directions issued by the respondent no. That, remedial measures were taken to control the pollution by the respondent No. 3 which were shown in the application for complying with the pollution norms along with all the required documents. Thereafter, the SDM, Khambhalia, as per the directions issued by the respondent no. 2, a conditional order under Section 133 of the CrPC was passed and called the respondent no. 3 Company to remain present on 28th February 2018 with all the necessary evidence. In support thereof including the compliance and remedial measures taken to control the pollution as well as submissions/reply filed by the respondent no. 3, in Magistrate/133/case/2/2017, SDM Khambhalia thought it fit to dispose of the proceedings as the factory/plant was closed due to closure order in force and the proceedings were pending before GPCB in that regard and there was no purpose in continuing the proceedings under Section 133 of CrPC in such circumstances at that stage. That, as per the order dated 31st January 2018 passed by the GPCB against the respondent no. 3, factory/plant was remained closed and electricity was disconnected. That, after taking remedial measures, GPCB revoked the closure order by passing a separate order on 16th March 2018. Section 133 of the CrPC empowers the District Magistrate or SDM to exercise such powers. That, representative of the petitioner was very much examined and considered by the respondent no. 2, who thought it fit to carry out joint inspection of the factory/plant to the respondent no. 3 and initiated necessary action under Section 133 of CrPC. That, the action of the SDM, Khambhalia cannot be said to be without jurisdiction as argued by learned advocate for the applicant. That, provisions of Section 133 of CrPC would not be applicable to the facts of the present case as the company of the respondent no. 3 is regulated by GPCB under the relevant statutory laws. That, the purpose of Section 133 of CrPC is to be invoked for any imminent urgency that too for the purpose of regulating the trade or business and not to prohibit the same. 3 is regulated by GPCB under the relevant statutory laws. That, the purpose of Section 133 of CrPC is to be invoked for any imminent urgency that too for the purpose of regulating the trade or business and not to prohibit the same. That, SDM, after considering the complaint/representation of the applicant and examining the evidence has rightly found it appropriate to close the case as the factory/plant was inoperative due to the closure order being regulated by the GPCB and there was no imminent nuisance much less public nuisance warranting continuation of the proceedings under Section 133 of CrPC. It was further submitted that under Section 397 of CrPC, the applicant may approach the court of Sessions by preferring revision application challenging the order of the SDM instead of availing proper remedy, applicant has approached this Hon'ble High Court under Section 397 of CrPC. That, as alternative efficacious remedy was already available to him. It was requested by learned advocate for the respondent no. 3 to reject the application. 10. In support of his arguments, learned advocate for the respondent No. 3 has placed his reliance on the below mentioned judgments: 1. AIR 1943 ALLAHABAD 19 2. 2000 SCC ONLINE CAL 36 4. 1975 SCC ONLINE Mad 263 5. (2000) 7 SCC 529 11. Learned advocate has further argued that the proceedings under Section 133 of CrPC would be between the opponent and District Magistrate. There is no violation of principle of natural justice as argued by the applicant. 12. Having considered the facts of the case and submissions made by learned advocates for the respective parties as well as learned APP for the respondent-State, it transpires from the record produced before the Court that respondent no. 3 company was set up in the year 1983 and the residential premises, primary school and the hospital were established much better thereafter i.e., more than two decades. The applicant is a resident of Sanjaynagar and must be aware with the fact that the hospital as referred was set up only in the year 2014. So far as allegations made, most important effect of production of calcined bauxite and the risks relate to noise, ergonomics, trauma and caustic soda splashes of the skin/eyes, in addition to other risks to the health, respondent no. So far as allegations made, most important effect of production of calcined bauxite and the risks relate to noise, ergonomics, trauma and caustic soda splashes of the skin/eyes, in addition to other risks to the health, respondent no. 3 has answered on oath that there is no chemical process undertaken for production of calcined bauxite which could cause and/or contribute to the health of the people residing in the near vicinity of the factory/plant. It is further submitted that there was no usage of caustic soda as alleged in the petition. There is no hazardous process carried in the calcinations. GPCB has also granted permission for calcinations of bauxite and it is not recognized that the said process is hazardous. Further it appears from the record that the factory/plant was situated in the village Mewasa, which is approximately 50 km away from the factory premises. It appears that Special Criminal Application No. 9111 of 2017 was preferred by the present applicant before this Court against the State of Gujarat and District Magistrate, Devbhumi Dwarka inter-alia seeking direction to decide and adjudicate the complaint/representation of the petitioner. This Court, vide order dated 27th November 2017, disposed of the said Special Criminal Application observing that the matter should be looked into by the respondent no. 2 and to consider the representation of the applicant in accordance with law. It further appears that upon considering the representation of the applicant, the Collector, Devbhumi Dwarka directed the Regional Officer, GPCB and the SDO, Khambhalia to conduct joint inspection of the factory/plant of the respondent no. 3-Company and upon receiving report dated 11th January 2018, the Collector, vide communication dated 29th January 2018 directed the Prant Officer, Khambhalia to initiate proceedings under Section 133 of CrPC against the respondent No. 3-Company and to report the same. The GPCB in exercise of its powers under Section 31(A) of the Air (Prevention and Control of Pollution) Act, 1981 issued a closure order dated 31st January 2018. It appears from the order that respondent no. 3 Company was required (1) to stop the production at the factory/plant within 15 days, (2) if production is carried out for captive consumption using the DG set, that also to be stopped and (iii) after expiry of 15 days, the electricity connection of the factory was to be disconnected till further orders. 3 Company was required (1) to stop the production at the factory/plant within 15 days, (2) if production is carried out for captive consumption using the DG set, that also to be stopped and (iii) after expiry of 15 days, the electricity connection of the factory was to be disconnected till further orders. Thereafter, it appears that present applicant, after receiving the closure order dated 31.01.2018, filed an application on 5th February 2018 before the Competent Authority seeking revocation of the closure order in prescribed form D-7. In the said application, in Col. 6, in respect of other remedial measures taken to control the pollution, the respondent no. 3-Company had given column wise details in respect of the remedial measures undertaken by the company for complying with the pollution norms along with all the required documents. It appears that as per the directions of the Collector, Devbhumi Dwarka, Sub Divisional Magistrate, Khambhaliya issued conditional order under Section 133 of the CrPC against the respondent No. 3 to immediately stop the nuisance as alleged and called upon the respondent no. 3 to remain present on 28th February 2018 with all necessary evidence. The respondent No. 3 appeared through its advocate before the learned SDM, Khambhalia on 28th February 2018 and filed its reply/submission alongwith necessary documents alongwith the compliance and remedial measures taken to control the pollution as is reflected in the application seeking revocation of the closure order dated 31.01.2018 filed with GPCB. Thereafter, considering the reply/submissions dated 28th February 2018 alongwith the list of documents filed by the respondent no. 3-company in Magistrate/133/case/2/2017 and more particularly, the fact that (I) there was already a closure order dated 31.01.2018 effective (ii) the electricity connection was disconnected, at the factory/plant of the respondent no. 3-company (iii) the production at the factory/plant had remained stopped/closed and (iv) the respondent no. 3-company had produced material evidence in respect of the remedial measures and the reports filed in that regard, the Sub Divisional Magistrate, Khambhaliya thought it fit to dispose of the proceedings as the factory/plant was closed due to closure order in force and the proceedings were pending before GPCB in that regard and there was no purpose in continuing the proceedings under Section 133 of the CrPC in such circumstances at that stage. Subsequent events of revoking the previous order dated 1st March 2018 passed by the SDM cannot be examined by this Court as it is not subject matter of this proceeding, however, argued by learned advocate for the applicant. 13. In case of Makhan Lal v. Buta Singh, reported in the Hon'ble High Court has defined the object of Section 133 of CrPC in para 5 as under: 5. The object of Section 133 Cr.P.C. is to enable an Executive Magistrate to pass orders speedily in a case where public nuisance or obstruction has been made in the right of the public at large. The object of Section 133 Cr.P.C. is not to enable a complainant to obtain order to safeguard his civil right nor he can obtain any relief in connection with his legal rights. The order contemplated under Section 133 Cr.P.C. is for the benefit of public at large. The Hon'ble Supreme Court in Vasant Manga Nikumba and Ors. v. Baburao Bhikanna Naidu (D) By Lrs. and Anr. 1995 Supplement (4) SCC 54 has approved the judgment of madras High Court holding that where the alleged nuisance has been in existence for a long period and the circumstantial evidence did not prove that an urgency existed warranting the taking or action under Section 133 Cr.P.C., it has been held that 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. Section 133 is attracted only in case of emergency and immediate danger to the health or physical comfort to the community. While approving the Madras High Court Judgment the Hon'ble Supreme Court observed as follows: "5. In T.K.S.M. Kalyanasundaram v. Kalyani Ammal, 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 an urgency existed warranting the taking or 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 an urgency existed warranting the taking or 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 in 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 the civil remedy available and should not be encourse (sic encouraged) to taking recourse to the provisions of Section 133 of the Code." 14. Hon'ble Allahabad, in case of Ramu alias Langar through Bhairon v. Murli Das, reported in AIR 1943 Allahabad 19, has observed as under: "The proceedings under S. 133 are not intended to settle private dispute between two members of the public. They are not originated by the filing of complaint or something of that kind. Any person can give a Magistrate information of the existence of any state of affairs, but when the Magistrate acts on that information, he is acting suo motu. The informant has no rights in the proceedings under S. 133 and is not a party thereto; if he wishes to obtain any redress in his personal capacity he can go to a civil court. If the Magistrate issues a preliminary order under S. 133 for the removal of an obstruction the question which arises is one between the Magistrate on the one side on behalf of the public at large and the person, on the other, to whom notice has been issued" 15. If we consider observation of the Hon'ble High Court of Allahabad, informant cannot be said to be a party in the proceedings under Section 133 of CrPC, if he wishes to obtain any redress in his personal capacity, he can go to Civil Court. If we consider observation of the Hon'ble High Court of Allahabad, informant cannot be said to be a party in the proceedings under Section 133 of CrPC, if he wishes to obtain any redress in his personal capacity, he can go to Civil Court. The petitioner may inform the District Magistrate in respect of the alleged public nuisance but has no right under proceedings under Section 133 of CrPC to redress the District Magistrate. Further, the Magistrate can for-good reasons drop proceedings at any stage and refuse to take any further action in the matter. Here also, closure order was passed by the GPCB on 31st January 2018 against the respondent no. 3, electricity connection of the respondent no. 3 was discontinued and factory/plant was closed, thus there was no need to take any immediate action by the respondent no. 2 or the SDM, Khambhalia against the respondent no. 3. 16. This High Court, in case of Manubhai Hathibhai Patel v. Sejalben Janakbhai Patel, Sarpanch & ors, reported in 2010(2) GLH 757 has observed the meaning of expression "any person aggrieved". As a complainant, a person who brings such irregularities to the notice of the Competent Authority may participate in the proceedings and bring on record material at his command. He, however, cannot claim to be a 'person aggrieved'. If ultimately on the basis of the evidence on record, the proceedings are dropped by the competent authority. If we consider the issue of violative principle of natural justice, as no notice was issued by the SDM, Khambhalia before passing impugned order or no opportunity was given to him, principle is that in addition to breach of natural justice, prejudice if caused must also be proved by the applicant. 17. Considering the facts that factory/plant of the respondent no. 3 was closed, absence of any notice to show cause, or giving any opportunity of hearing to the applicant, does not make it difference to him, as no prejudice is caused to the applicant. It is not possible to laid down rigid rule as to when the principles of natural justice are to be applied nor as to their scope or extent. If no other conclusion was possible on admitted or in disputable facts, it is not necessary to quash the order which was passed in alleged violation of natural justice. 18. It is not possible to laid down rigid rule as to when the principles of natural justice are to be applied nor as to their scope or extent. If no other conclusion was possible on admitted or in disputable facts, it is not necessary to quash the order which was passed in alleged violation of natural justice. 18. The Hon'ble Supreme Court in case of Vasant Manga Nikumba and Ors. V. Baburao Bhikanna Naidu (Deceased) and Anr., reported in 1995 Supp (4) SCC 54, has observed that when power under Section 133 of CrPC would be exercised. "Criminal Procedure Code 1973-S. 133-Power under-When to be exercised-Condition precedent-Magistrate must exercise judicious discretion-Proceedings not intended to settle private disputes or a substitute for civil proceedings-In the circumstances of the case held, there was no imminent danger as to require the holding to be demolished immediately. Para-3: Nuisance is an inconvenience materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. It may be public or private nuisance. As defined in Section 268 IPC, public nuisance is an offence against public either by doing a thing which tends to the annoyance of the whole community in general or by neglect to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the property in the vicinity. On the alternative it causes injury, obstruction, danger or annoyance to persons who may have occasion to use public right. It is the quantum of annoyance or discomfort in contra distinction to private nuisance which affects an individual is the decisive factor. The object and public purpose behind Section 133 is to prevent public nuisance that if the Magistrate fails to take immediate recourse to Section 133 irreparable damage would be done to the public. The exercise of the power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on record. The proceedings under Section 133 is not intended to settle private disputes or a substitute to settle civil disputes though the proceeding under Section 133 is more in the nature of civil proceedings in a summary nature" 19. The proceedings under Section 133 is not intended to settle private disputes or a substitute to settle civil disputes though the proceeding under Section 133 is more in the nature of civil proceedings in a summary nature" 19. If we consider Section 133 of CrPC, there was no imminent danger to the property and consequential nuisance to the public. There was no question of closure of plant of the respondent no. 3 or urgency required explaining that it was causing nuisance to the persons living or carrying on business in the neighbourhood. Each case has to be considered in the light of the facts and circumstances obtained in each case. 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. Section 133 of CrPC is attracted only in cases of emergency and imminent danger of the health or physical comfort of the community. The SDM, Khambhalia has rightly disposed of the matter as no imminent danger or emergency for closing of the plaint/factory of the respondent no. 3 company was found necessary as it was already closed. Recourse to Section 133 could not be a substitute for the civil proceedings and the parties should have recourse to the civil remedy available and should not be recourse to taking recourse to the provisions of Section 133 of the Code. 20. In case of Harihar Polyfibers and Anr. V. The Sub Divisional Magistrate, reported in 1997(1) ALT Cri. 946, Hon'ble Karnataka High court in the facts and circumstances of the case has observed as under: 12. With these principles in mind, it is now necessary to consider the case on hand. As stated earlier, the petitioners claim that since Water Air Pollution and Environment (Protection) Laws are the subsequent enactment, the Sub-Divisional Magistrate under Section 133 Cr.P.C. Cannot proceed with the case. At the very outset the learned counsel for the petitioner submitted that the petitioners have obtained licence from the State Board as contemplated under the Act and that licence continued to be in force. In that circumstances, the petitioners cannot be prevented from running the factory. At the very outset the learned counsel for the petitioner submitted that the petitioners have obtained licence from the State Board as contemplated under the Act and that licence continued to be in force. In that circumstances, the petitioners cannot be prevented from running the factory. If the Sub-Divisional Magistrate were to hold an enquiry without any basis, naturally the petitioners would be put to grant inconvenience, and hardship also would be caused to them. Further, a large number of employees would go without any Job. This Court under Sec. 482 Cr.P.C. Cannot consider all these aspects. The question is: as to whether the SDM has lost his jurisdiction to proceed against the case under Section 133 Cr.P.C. 21. In another case Municipal Council, Ratlam v. Shri Vardichan and Ors, reported in (1980) 4 SCC 162 , relied upon by the learned advocate for the applicant, under Section 133 of CrPC, Magistrate can compel Municipality to make drains and improve sewerage affecting the health and convenience of the residents. Financial stringency of the Municipal Body is no defence. 22. In case of Nagarjuna Paper Mills Ltd. v. Sub Divisional Magistrate and Ors, Hon'ble Andhra Pradesh High Court has taken a view that only SDM is entitled to take action under Section 133 of CrPC in case of removal of nuisance if any, brought to his notice either by a report from any police officer or any other information. The Magistrate is certainly empowered to take in evidence any other particulars that required for passing of the final order in the same shape or in the modified form, after giving an opportunity to the party concerned. Certainly, the observations made by High Court would apply in a case where the facts would emerge from the record. 23. If we consider second issue of maintainability of the revision application before this Court, the learned advocate for the applicant has relied upon the judgment reported in 1976 GLR 979 . In this case also, the petitioner straightway approached the High Court by preferring the revision application without approaching the Sessions Court. Considering the provisions of new Code regarding revision, it was held that High Court cannot in changed circumstances refuse to entertain the petition under Section 397(1) on the ground that Sessions Judge had not been moved before High Court was approached. Considering the provisions of new Code regarding revision, it was held that High Court cannot in changed circumstances refuse to entertain the petition under Section 397(1) on the ground that Sessions Judge had not been moved before High Court was approached. Rule 14 of the Bombay High Court Appellate Side Rules 1960 was considered and treated as having stood abrogated. Merely, the petitioner has not approached the Sessions Court in first instance, he cannot be refused for asking the relief as sought by him before the Court and thus, the submission made by learned advocate for the respondent on this point cannot be sustained. 24. As there was no imminent danger to the health and physical comfort of the community on 01.03.2018, the question of attracting provisions under Section 133 of CrPC would not arise by the respondent no. 2 or SDM, Khambhalia, and hence, the impugned order challenged by the applicant cannot be said to be illegal or perverse and no interference is required by this Court. Thus, present revision application is accordingly rejected. Rule is discharged.