ORDER : Sunder Mohan, J. The Criminal Revision challenges the order dated 21.02.2024 in Na.Ka.No.02/2022/A1 passed by the 1 st respondent under Section 133 of Cr.P.C ., directing the petitioners and one D.Vikram, to vacate the Dog Breeding Centre, situated at No.28, Circuit House Road, Puliyangulam, Coimbatore. 2. The brief facts leading to the passing of the impugned order is as follows: (a) One P.R.Damodaran, was the original owner of land measuring 56 cents at No.24, Kamaraj Road, Coimbatore. (b) On 27.11.2009, the Revenue Divisional Officer, Coimbatore, had passed an order in Ref.No.2966/09/A2 under Section 133 of the Cr.P.C ., against one D.Vikram, son of the said P.R.Damodaran that he should not carry on the activity of keeping or holding any dogs in the said premises and directing him to forthwith remove all dogs from the premises. (c) The said D.Vikram had challenged the said order before this Court in Crl.R.C.No.1195 of 2009. This Court, observed that the dogs in a residential area would cause nuisance; and that since the said Vikram was carrying on a commercial activity, the order passed by the Revenue Divisional Officer, Coimbatore, need not be interfered with and dismissed the said revision by the order dated 23.12.2009. (d) The Special Leave Petition in SLP (Crl.) No.9294 of 2010, filed challenging the said order was dismissed by the Hon'ble Supreme Court on 10.01.2011. (e) The said P.R.Damodaran, filed a suit before the District Munsif Court, Coimbatore in O.S.No.2529 of 2009 against the Commissioner, Deputy Commissioner, Assistant Commissioner, Inspector of Police (L&O) B4-Race Course Police Station, District Collector and Revenue Divisional Officer of Coimbatore District, praying for an injunction restraining them from taking any action against him for keeping pet dogs in his house. The said suit was decreed exparte on 03.02.2012. (f) While so on 31.12.2021, a complaint was given by the 3 rd respondent and others to the 1 st respondent herein/Revenue Divisional Officer, stating that in violation of the earlier orders passed by the Revenue Divisional Officer and the order of this Court in the revision, the petitioners were running a Dog Breeding Centre. (g) The 1 st respondent herein passed an order on 27.05.2022 in Na.Ka.No.002/2022/A2. The said Vikram Damodaran, challenged the said order before this Court in Crl.R.C.No.897 of 2022 stating that the order was passed without hearing him. (g) The 1 st respondent herein passed an order on 27.05.2022 in Na.Ka.No.002/2022/A2. The said Vikram Damodaran, challenged the said order before this Court in Crl.R.C.No.897 of 2022 stating that the order was passed without hearing him. This Court vide order dated 14.09.2022, set aside the order dated 27.05.2022 and directed the said Vikram Damodaran to submit his explanation to the notice dated 05.05.2022 and further, directed the Sub Divisional Magistrate and Revenue Divisional Officer to consider the said explanation and pass appropriate orders. (h) The said Vikram Damodaran and the petitioners herein participated in the proceedings and filed their written statement objecting to the passing of an order under Section 133 of Cr.P.C . (i) In the meanwhile, the 1 st respondent had also sought for a report from the Executive Engineer, Tamilnadu Pollution Control Board and obtained a report dated 28.11.2022. Thereafter, after conducting further enquiry, the 1 st respondent passed the impugned order. 3. Mr.V.Raghavachari, learned senior counsel appearing for the petitioners submitted that (a) the impugned order cannot be sustained as no preliminary order was passed under Section 133 of the Cr.P.C and no notice was sent to the petitioners before passing the impugned order under Section 133 of the Cr.P.C .; (b) the provisions of Section 133 of the Cr.P.C ., can only be invoked, if there is a public nuisance and if the complaint is with regard to a private nuisance, the remedy is to file a civil suit; (c) the provisions of Section 133 of the Cr.P.C ., can be involved only if there is an element of urgency and they cannot be a substitute for a civil Court; (d) though this Court in Crl.R.C.No.1195 of 2009, had upheld the order passed under Section 133 of the Cr.P.C ., against the petitioners' brother, the same would not be binding as the cause of action to initiate action then and to initiate action now, are different and the impugned order has to be tested independently without reference to the earlier order passed by this Court against the brother of the petitioners; (e) the impugned order refers to a report from the Engineer attached to the Tamil Nadu Pollution Control Board and the impugned order is based on the said report. However, the 1 st respondent had not furnished the copy of the said report to the petitioners; and had also not examined the author of the report. 4. The learned senior counsel further submitted that the finding of the 1 st respondent that there is nuisance is without any basis; and that the dogs in the premises are pet dogs and no commercial activity is performed/carried out in the premises and therefore, the 1 st respondent ought not to have invoked Section 133 of the Cr.P.C . 5. In support of the aforesaid submissions, the learned senior counsel relied upon the following judgments. 1.Sumer Singh & Another v. Sanitary Inspector of Bauria, reported in 1955 SCC OnLine Cal 176 ; 2. Vasant Manga Nikumba and others v. Baburao Bhikanna Naidu (Deceased) by Lrs. And another, reported in 1995 Supp (4) SCC 54 ; 3.Manuel Philip Perreira v. State, reported in 1966 SCC OnLine Bom 14; 4.Pepsico India Holding Ltd., v. The District Revenue Officer and 4 others, reported in 2001 SCC OnLine Mad 265; 5.State of M.P., v. Kedia Leather & Liquor Ltd. and others, reported in (2003) 7 SCC 389 ; 6.Kachrulal Bhagirath Agrawal and others v. State of Maharashtra and others, reported in (2005) 9 SCC 36; 7.The Manager, Kodanad Estate v. The Sub Divisional Magistrate, Nilgiris, reported in 2008 SCC OnLine Mad 316; 8.P.Rayin v. Sub-Divisional Magistrate and Revenue Divisional Officer, reported in 2024(2) MWN (Crl.) 639; 6. (a) The 1 st respondent has filed a counter stating that the complaint reveals that the petitioners and their brother were keeping large number of dogs in a residential area; that the dogs are making peculiar noises, including barking and howling during night hours; and that pursuant to the orders of this Court in Crl.R.C.No.897 of 2022, the 1 st respondent conducted a detailed enquiry on various dates, gave opportunity to all parties concerned and passed the order that is impugned in this revision. (b). (b). The counter further states that the decree obtained by the father of the petitioners would not be binding as fresh cause of action has arisen on the complaint given by respondents 3 to 7 and therefore, the said decree would not be a bar for his initiating action under Section 133 of the Cr.P.C especially, when the impugned order was passed on the compliance of the earlier order of this Court in Crl.R.C.No.897 of 2022 dated 14.09.2022. 7. Mr.Wilson, learned senior counsel appearing for respondents 3 to 6 submitted that (a) this court had earlier elaborately considered the very same question and held that nuisance is bound to be caused to the general public due to the keeping of dogs in the house of petitioners as they are bound to bark and howl at odd hours; that the challenge to the said order was negatived by the Hon'ble Supreme Court and that in violation of the orders of this Court, the petitioners are once again keeping the dogs in the residential area and therefore, the impugned order passed by the 1 st respondent does not call for any interference; (b) the petitioners on coming to know of the earlier order passed by the 1 st respondent, which was set aside by this Court in Crl.RC.No.897 of 2022 by the order dated 14.09.2022 had participated in the enquiry conducted by the 1 st respondent and had also filed a written statement and hence, in such circumstances they cannot complain of violation of principles of natural justice; (c) the observations of this Court in Crl.R.C.No.1195 of 2009 dated 23.12.2009 are binding and the petitioners have in fact violated the earlier order passed under Section 133 of the Cr.P.C ., besides violating the orders of this Court in the above revision; d) in the impugned order it is specifically stated that the petitioners and their brother were running a dog breeding centre in the premises and therefore, it would amount to a trade or occupation within the meaning of Section 133 (1)(d) of the Cr.P.C ., and hence, the impugned order is in accordance with the law; and (e) the petitioners had not obtained any permission to keep the dogs as mandated under Section 352 of the Coimbatore City Municipal Corporation Act. 8. 8. Mr.S.Doraisamy, the learned counsel for the 7 th respondent reiterated the aforesaid submissions and submitted that the order of this Court had been deliberately violated and there is no reason to interfere with the impugned order. 9. The learned senior counsel appearing for respondents 3 to 6 and the learned counsel appearing for the 7 th respondent relied upon the following judgments Sl.No. Judgments In support of their submission that 1 2012(5) SCC 1 [Ramlila Maidan Incident, In re,] right to sleep is a fundamental right. 2 2011(3) SCC 98 [M.Nagabhushana v. State of Karnataka] the earlier orders of this Court would operate as res judicata and hence, the petitioners cannot re- agitate the very same issue in a different form. 3 (2005) 7 SCC 190 [Ishwar Dutt v. Collector (LA) the principle of res judicata is a specie of principle of estoppel. 4 [WP No.929 of 2022 dated 24.01.2022 [Sai Bhairavalaya Animal Welfare, represented by its Trustee v. Executive Officer] keeping large number of dogs in the premises is likely to cause nuisance to the public. 10. Considered the submissions made by the learned counsels on either side and perused the materials available on record. 11. There cannot be any quarrel with the proposition that an order under Section 133 of the Cr.P.C must be preceded by a preliminary order and after affording opportunity of hearing to the person affected by the said order, the order can either be confirmed or modified. 12. As stated earlier, the 1 st respondent had earlier passed an order on 27.05.2022 calling upon the petitioner's brother to remove the dogs. The said order was preceded by a notice dated 05.05.2022 admittedly. This Court while setting aside the order dated 27.05.2022 had directed the petitioner's brother to submit his explanation to the notice dated 05.05.2022. The petitioners on coming to know of the proceedings also participated in the said proceedings and filed their written statements. Therefore, in the peculiar circumstances of the case, it is seen that though the exact procedure prescribed under Section 133 of the Cr.P.C has not been followed, the 1 st respondent has complied in substance with the procedural requirements of notice and hearing. Therefore, the judgments relied upon by the learned senior counsel for the petitioners in this regard, would not be of any avail to the petitioners. 13. Therefore, the judgments relied upon by the learned senior counsel for the petitioners in this regard, would not be of any avail to the petitioners. 13. The order passed by this Court in Crl.R.C.No.1195 of 2009 dated 23.12.2009 was in respect of the very same premises. The brother of the petitioners was asked to remove the dogs pursuant to an order passed under Section 133 of the Cr.P.C which was upheld by this Court and by the Hon'ble Supreme Court. The petitioners and his brother have now kept the dogs in the very same premises and therefore, the submission that the said order would have no bearing at all cannot be accepted. 14. In the earlier order passed by this Court, this Court had made the following observations. “20. The Court can take judicial notice that barking and howling of dogs in a residential area would certainly cause noise pollution and further, keeping those animals in the residential area, without getting license under Section 352 of the Coimbatore City Municipal Corporation Act is also violation. On the aforesaid circumstances, this Court is of the view that the decisions cited on the side of the petitioner would not make the action taken by the 4th respondent, Sub-Divisional Magistrate illegal to remove the public nuisance under Section 133 Cr.P.C . Keeping animals detrimental to the interest of the other residents cannot be a right of any person. 21. The Court can take judicial notice that keeping even 6 or 7 dogs in a residential area will cause public nuisance on account of barking and howling of the dogs, similarly, emitting foul smell by the dogs cannot be ruled out, which would also cause public nuisance. 22. Mr.A.Ramesh, learned Senior counsel appearing for the respondents 2 and 3 relying on the decision of the Madhya Pradesh High Court, Indore Bench in Krishna Gopal vs. State of M.P., ( (1986 Crl. L.J 396) ) submitted that the jurisdiction of the Sub-Divisional Magistrate can be invoked under Section 133 (1) Cr.P.C ., on receiving the report of the Police Officer or other information and on taking such evidence if any, as he thinks fit. It was held that on information received, the Sub-Divisional Magistrate is empowered to take action in this behalf for either removal or regularising a public nuisance. It was held that on information received, the Sub-Divisional Magistrate is empowered to take action in this behalf for either removal or regularising a public nuisance. The action that was initiated on the basis of a Police Report and the complaint received, could be the basis for taking action under Section 133 Cr.P.C . It has been held that merely because only one complainant has come forward to complain about the nuisance, the nuisance cannot be construed that there was no public nuisance, as contemplated under Section 133 Cr.P.C . In the instant case, there was complaints by three persons and they complained before the Sub- Divisional Magistrate, in order to remove the public nuisance and further, as per the impugned order, it is made clear that the Sub-Divisional Magistrate has considered the reports of the Inspector of Police, B4 Police Station, Assistant Commissioner of Police (Central) and the report of the Joint Director of Health Services and that the Commissioner, Coimbatore Corporation has also reported that no NOC was issued for rearing dogs at the residence of the petitioner. 23. It is not in dispute that public nuisance may be an annoyance, by way of unbearable noise or emitting foul smell. The barking and howling of dogs at the residential area is certainly be construed as a public nuisance, since it is an annoyance to public at the residential area. Keeping number of dogs in a residential area would also emit foul smell, injurious to the public health. It cannot be said by the petitioner that there was no howling or barking by the dogs or no emitting of foul smell, since more number of dogs were kept nearby the residence of the respondents 1 to 3. In a civilized society, every one has a right to live peacefully without noise pollution and health hazardous atmosphere, which has been recognised as a fundamental right guaranteed under Article 21 of the Constitution of India. 24. Even the conduct of any trade or occupation or keeping of any goods or merchandise, injurious to health or physical comfort of the community, could be construed only as a public nuisance. The noise pollution or air pollution cannot be ruled out as an exception. As held by the Kerala High Court, in Madhavi vs. Thilakan, reported in 1989 Crl. Even the conduct of any trade or occupation or keeping of any goods or merchandise, injurious to health or physical comfort of the community, could be construed only as a public nuisance. The noise pollution or air pollution cannot be ruled out as an exception. As held by the Kerala High Court, in Madhavi vs. Thilakan, reported in 1989 Crl. L.J 499, with reference to Articles 21 and 47 of the Constitution of India and Section 133 Cr.P.C , it cannot be disputed that right to live includes right to live in peace, to sleep in peace and right to repose good health. Running workshop in certain circumstances can cause air pollution and noise pollution, which could be regulated or prohibited by the authority in invoking the provisions of law. The noise and fuels emanating from the workship will cause health hazardous. Noise pollution and emitting foul smell by keeping dogs in a residential area is no way a lesser hazardous condition than a factory creating noise pollution. Barking and howling of dogs and emitting foul smell in a residential area is undoubtedly a public nuisance. 25. The power under Section 133 Cr.P.C . is vested with the Sub-Divisional Magistrate or Executive Magistrate, in order to protect the people from the tyranny of the public nuisance, by way of removing the nuisance. 26. It is also an admitted fact that the petitioner has not obtained any license from the authorities, as contemplated under Section 352 of the Coimbatore City Municipal Corporation Act, 1981 , for keeping dogs. The petitioner is keeping number of dogs not as pet dogs, but for commercial purposes. The power agent of respondents 1 to 3 was examined and he has specifically stated that he was conversant with the facts of the case and he was also cross-examined by the petitioner herein and therefore, there is no error in considering the evidence of the power agent of the complainants, when it is supported by other material evidence available on record. It has been made clear that the Sub-Divisional Magistrate was empowered under Section 133 Cr.P.C ., for removal of nuisance and to protect the people from public nuisance. It has been made clear that the Sub-Divisional Magistrate was empowered under Section 133 Cr.P.C ., for removal of nuisance and to protect the people from public nuisance. The dogs, being kept by the petitioner were causing nuisance by way of barking and howling in the residential area of the respondents 1 to 3 and hence, the action taken by the 4th respondent under Section 133 Cr.P.C ., cannot be construed as an illegal act. 27. As held by the Hon'ble Apex Court, nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence, but it is not capable of precise definition. Section 133 attracts only public nuisance, as held by the Hon'ble Supreme Court in Vasant Manga Nikumba vs. Baburao Bhikanna Naidu, reported in (1995) 4 (Supp) SCC 54. If the inconvenience or annoyance affects public at large, that has to be construed only as public nuisance. In the instant case, it has been established that barking and howling of the dogs have caused inconvenience and annoyance to the respondents 1 to 3 as well as other people residing in the locality and therefore, it is only a public nuisance. Similarly, emitting foul smell is also a public nuisance, causing inconvenience to all the people residing in the locality. As a matter of right, no one is entitled to keep dogs or other animals in a residential area, so as to create public nuisance. Considering the barking and howling of dogs, in addition to emitting foul smell, the concerned authority, empowered under Section 133 Cr.P.C ., can take action to remove the nuisance. 28. The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and which involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public, as decided by the Hon'ble Apex court in State of M.P. vs. Kedia Leather & Liquor Ltd., reported in 2003 SCC (Cri) 1642. 15. The petitioners in their written statements have admitted that dogs are present in their premises. The relevant portions are extracted hereunder “6. …The dogs at present in the premises are progenies of dogs belonged to Late P.R.Damodaran, husband of no.2 of these parties and father of nos.1,3 & 4 of these parties. 8. 15. The petitioners in their written statements have admitted that dogs are present in their premises. The relevant portions are extracted hereunder “6. …The dogs at present in the premises are progenies of dogs belonged to Late P.R.Damodaran, husband of no.2 of these parties and father of nos.1,3 & 4 of these parties. 8. … As such nos.3 and 4 also have their pet dogs maintained in the premises Door No.28, Circuit House Road, Coimbatore. 9. ... This proceeding would show that other than no.1 of the B party, his family members also had pet dogs in the same premises even during the earlier proceedings and now they continue to have their pups.....” 16. In the light of the above admission made by the petitioners and in view of the observation made by this Court in Crl.R.C.No.1195 of 2009, in respect of the same premises, which has become final, this Court is of the view that the 1 st respondent is bound by the observations of this Court and hence, the impugned order stating that the presence of dogs in large number is likely to cause physical discomfort to the residents of the locality, cannot be faulted. 17. The other submission of the learned senior counsel for the petitioners is that the provisions of Section 133 of the Cr.P.C cannot be a substitute for civil Court and can be invoked only when there is an emergency and since even according to the respondents, the dogs are kept since the COVID-19 period, there was no reason for the impugned action. 18. This Court is of the view that the complaint of the respondents 3 to 7 would show that immediately after the lock down period they had given a complaint to the District collector on 31.12.2021 stating that the petitioners and their brother, were running a breeding centre in their premises and it causes health hazard besides causing nuisance to the residents. The 1 st respondent had taken action immediately and pursuant to the orders of this Court, an enquiry was conducted and the impugned order has been passed. Therefore, this Court also is not inclined to accept the submission of the learned senior counsel for the petitioners that the respondents had tolerated nuisance and therefore, there is no urgency in the issue, to invoke Section 133 of the Cr.P.C . 19. Therefore, this Court also is not inclined to accept the submission of the learned senior counsel for the petitioners that the respondents had tolerated nuisance and therefore, there is no urgency in the issue, to invoke Section 133 of the Cr.P.C . 19. The order passed by the civil Court would also not be binding on the respondents as the respondents cannot be restrained permanently from taking any action even if there is a fresh cause of action to initiate action under Section 133 of the Cr.P.C . Therefore, this Court is of the view that a decree obtained by the petitioner's father would not prevent the respondents to take action if the conduct of the petitioners warrant an action under Section 133 of the Cr.P.C . 20. The question therefore is whether the provisions of Section 133 of the Cr.P.C can be invoked. It is also not in dispute that Section 133 of the Cr.P.C can be invoked only if there is a nuisance of such a nature which are mentioned in Section 133 (1) (a) to (f) of the Cr.P.C . If there is only a private nuisance, the aggrieved persons can only approach the civil Court. It is not in dispute that Section 133 (1) (a) and (c) to (f) would not be applicable to the facts of the instant case. It has to be examined whether Section 133 (1)(b) of the Cr.P.C ., can be invoked. Section 133 (1)(b) of the Cr.P.C ., reads as follows: “that the conduct of any trade or occupation or 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 or such goods or merchandise should be removed or the keeping thereof regulated:” 21. Unless the 1 st respondent finds that keeping of dogs is pursuant to a trade or occupation of the petitioners or their brother, Section 133 of the Cr.P.C ., cannot be invoked. 22. Any action under Section 133 (1)(b) of the Cr.P.C ., has to satisfy two requirements. The second requirement viz., that the keeping of dogs is injurious to the health or physical comfort of the community, has been dealt with by this Court in Crl.RC No.1195 of 2009. The said order is binding in so far the injury to the health or physical comfort. The second requirement viz., that the keeping of dogs is injurious to the health or physical comfort of the community, has been dealt with by this Court in Crl.RC No.1195 of 2009. The said order is binding in so far the injury to the health or physical comfort. The injury to the health or physical comfort of a person would not depend on whether the dogs are kept as pets or pursuant to any trade or occupation. However, the question as to whether the first requirement viz., that the dogs were kept pursuant to any trade or occupation ought to have been specifically dealt with by the 1 st respondent. Merely because, the petitioner's brother was carrying on a commercial activity in the year 2009, as observed by this Court in 2009, it cannot be said that the petitioners and their brother are carrying on commercial activity even now, as admittedly the dogs were removed after the earlier order. However, it also cannot be denied that there is a strong presumption against the petitioners and their brother, that they are carrying on a commercial activity. However, that alone may not be sufficient. 23. In the impugned order, the 1 st respondent has stated that in the year 2009, a Dog Breeding Centre was run by the petitioners' brother. The relevant portion, reads as follows: The impugned order further states as regards the keeping of dogs now as follows: 24. From the above, it is seen that the 1 st respondent had relied upon a report of an Engineer attached to the Tamil Nadu Pollution Control Board and thereafter, concluded on the basis of the said report that the petitioners' brother was running a Dog Breeding Centre, without the permission of the Corporation by keeping 32 dogs. 25. It is not clear from the impugned order as to whether the report of the Pollution Control Board was furnished to the petitioners. Since the conduct of any trade or occupation is a sine qua non, for invoking Section 133 (1)(b) of the Cr.P.C ., the 1 st respondent ought to have stated as to how he had concluded that a trade or occupation was being conducted. If he had relied upon a report, then the copy of the same ought to have been furnished to the petitioners. If he had relied upon a report, then the copy of the same ought to have been furnished to the petitioners. Therefore, this Court is of the view that the matter can be remitted back to the 1 st respondent to decide whether the petitioners have kept the dogs pursuant to a trade or occupation. 26. Black's Law Dictionary, defines 'trade' and 'occupation' as follows: Trade: 1. The business of buying and selling or bartering goods or services; 2. A transaction or swap; 3. A business or industry occupation; a craft or profession. Occupation: 1. An activity or pursuit in which a person engages; exp., a person's usual or principal work or business. ... 27. The other grounds raised by the petitioners as stated earlier are rejected as devoid of merits. The judgments relied upon on either side are not specifically referred to since the law laid down in the judgments cited on either side is not in dispute. The question really is whether the facts warrant an action under Section 133 of the Cr.P.C ., which has been dealt with. 28. The 1 st respondent therefore, shall give opportunity to the parties viz., respondents 3 to 7, the petitioners and their brother to establish their respective cases as regards the conduct of trade or occupation. Since the matter has been going back and forth the 1 st respondent shall complete this exercise within a period of four weeks from the date of receipt of a copy of this order and shall pass a fresh order in accordance with law, based on the evidence adduced on either side and the evidence if any, collected by him in exercise of his powers under Sections 139 and 140 of the Cr.P.C . 29. With the above observation, the Criminal Revision Case is disposed of. Consequently, the connected Criminal Miscellaneous Petition is closed.