S.C. Mital, J.
1. By this petition, under Section 482 Cr.P.C, the petitioner has challenged the order dated 7.2.98 passed by learned Sub Divisional Magistrate, Phalodi (District Jodhpur) under Section 133 Cr.P.C. in Criminal Case No. 5/96, State v. Khet Dan instituted on the report of S.H.O., Bap after inquiry made by him on the complaint lodged by the respondent No. 2 Gordhan in the Court of learned Sub Divisional Magistrate, Phalodi and forwarded by him for inquiry by order dated 3.4.96. By the impugned order, the learned Sub Divisional Magistrate, Phalodi rejected the application of the petitioner for dropping the proceedings and also ordered to close down the lime-kiln of the petitioner in village Sanwara.
2. The respondent No. 2 Gordhan alleged in his complaint that the lime-kiln run by the petitioner is creating air pollution by throwing smoke and dust thereby causing nuisance making vicinity inhabitable because the lime-kiln has been installed in the mid of the residential houses of the village. The learned S.D.M. forwarded the complaint to S.H.O., Bap for inquiry after lodging the report as aforesaid.
3. The learned S.D.M., Phalodi registered the case under Section 133 Cr.P.C. on 3.6.96 and issued simple notices to the petitioner i.e. conditional order was not passed as envisaged under Section 133(i) Cr.P.C. The petitioner put in appearance and submitted his objections on 27.12.97 and prayed for dismissing the complaint on the grounds mentioned therein. The learned S.D.M. heard the arguments and passed the impugned order as stated above.
4. I have heard the learned Counsel for the parties and learned Public Prosecutor. I have perused the relevant record of the case. It is contended on behalf of the petitioner; firstly, the learned S.D.M. did not properly satisfy himself with regard to the allegations in the complaint and did not issue conditional order which vitiates the whole proceedings and no order could be passed to close down the lime-kiln under Section 142 Cr.P.C. Reliance has been placed on Mohd. Rafi v. State of Rqjasthan and Ors. 1985 WLN (UC) 260. Secondly, the trial court has committed an error in stopping the functioning of lime-kiln on the application of the petitioner which was submitted for dismissing the complaint and no application on behalf of the complainant was filed to stop lime-kiln. Thirdly, the learned S.D.M. did not consider the important aspects of the case lime- kiln was started by completing all necessary formalities and sanction from Panchayat. Even loan was sanctioned for running this lime-kiln. Hence, the learned S.D.M. has made wrong observations about the petitioner's lime-kiln as unauthorised or illegal. Fourthly, it has also been completely ignored that at the most the trial court could have given necessary orders/directions to prevent the dispersal of smoke and dust to prevent any so called or alleged air pollution. A lime-kiln started with due permission could not be ordered to be closed. Fifthly, though the learned S.D.M. has not mentioned the provisions, probably the order has been given by way of injunction under Section 142 Cr.P.C. but there was no emergency or such imminent danger necessiting the impugned order of closing the lime-kiln rendering the workers, unemployed loosing their livelihood.
5. Learned Counsel for the petitioner cited 1998 RCC (4) 68 Smt. Chain Devi and Ors. v. State of Rajasthan and Ors.. He has vehemently argued that the impugned order is illegal, not supported by any evidence regarding the alleged pollution which may be set aside.
6. It is strenuously argued on behalf of the learned Counsel for the respondent No. 2 that consistently the allegation is against the petitioner that working of lime-kiln causing air pollution by emanating dust and smoke and being in the mid of the colony, it is creating nuisance and imminent danger to the physical comfort and health of the residents. A report was received from the Tehsildar and the learned S.D.M. passed the impugned order which is just and proper in the facts and circumstances of the present case. Thus, the learned Counsel for the respondent No. 2 and the learned Public Prosecutor supported the impugned order. It is urged that any activity creating pollution has to be considered seriously and should be stopped immediately. Serious view has been taken by the Hon'ble Supreme Court and took support from the decisions : AIR1996SC2231 M.C. Mehta v. Union of India and Ors. and : AIR1997Ker162 M.R. Pillal v. Executive Officer, Panchayat, Kayamkulla and Ors.
7. I have given my thoughtful consideration to the rival contentions. I have perused the record of the case. At this level, it will be worthwhile to have a look at the relevant provisions having bearing upon the controversy before us. Section 133 Cr.P.C. provides that the Magistrate may make conditional order for removable of nuisance on having satisfied that the conditions referred in Sub-section (1) of Section 133 Cr.P.C. exist on receiving the report of a police officer or other information. The Magistrate may require by such conditional order any person to comply with the conditional order or if he objects so to do, to appear before him and show cause that why the order should not be made absolute. Section 142 Cr.P.C. makes provisions for issuing injunction pending inquiry which reads as follows:
142. Injunction pending inquiry._(1) If a Magistrate making an order under Section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.
(2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury.
(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section.
8. Thus, the aforesaid Section empowers the Magistrate making an order under Section 133 Cr.P.C. to take immediate measures by issuing an injunction to prevent imminent danger or injury of a serious kind to the public to require the person to obviate or prevent such danger or injury pending the determination of the matter. Before passing the injunction it is incumbent on the Magistrate to consider the facts and circumstances of the case and the kind of the nuisance and the relevant material placed on record for drawing objective satisfaction that if the nuisance is not prevented it will cause imminent danger or injury of a serious kind to the public. This jurisdiction of issuing injunction pending the determination of the matter cannot be exercised in case of every danger or injury unless it is of that gravity as mentioned above and referred in Sub-section (1) of Section 142 Cr.P.C. Such powers cannot be exercised arbitrarily without having any material on record for satisfaction as referred in the aforesaid section and in each and every case of alleged nuisance without showing any imminent danger or serious injury to the public. The learned Executive Magistrate has to be more careful and to pass a reasonable order when the order results in the complete closing of the unit rendering the employees unemployed and the owner deprived of his livelihood.
9. In the instant case, the initial order passed by the learned Executive Magistrate on 3.6.96, discloses that it is not a conditional order as per the requirements of Section 133 Cr.P.C. When no conditional order was passed it was not justified to pass at any later stage an order closing the lime-kiln more so when there was no stage of passing any injunction order under Section 142 Cr.P.C. The record shows that no application under Section 142 Cr.P.C. was filed nor any such notice or the copy of the application was given to the petitioner to oppose the same. The matter was heard only on the objections filed by the petitioner after appearing in the court. It is also revealed from the documents submitted by the petitioner that he has taken permission from the panchayat samity and also took loan for running this lime kiln. Therefore it is not clear as to how it could be alleged unauthorised. I have perused the impugned order in which the learned Executive Magistrate has not given specific finding whether the operation of the lime kiln will cause 'imminent danger' or serious injury to the life and physical comfort of the people living in the vicinity'. The impugned order does not refer to any such material/or reaching to the conclusion as required under Section 142 Cr.P.C, only the report of the Tehsildar has been referred in the impugned order to the extent that there was environmental pollution and the people have objected in continuing this lime kiln in the mid of Abadi. In my opinion, the learned Executive Magistrate has not considered and discussed the facts and circumstances which according to him will create imminent danger and serious injury to the public if the lime kiln is allowed to run there. Moreover, this aspect has also not been taken into consideration while ordering closing of the lime kiln that whether the operation of the lime kiln can be allowed by providing measures or taking safe guards to prevent the dispersal of smoke and dust to remove the nuisance. The impugned order amounts to a final order of closing the lime kiln as prayed in the complaint before recording any evidence for deciding the complaint and without probing ways and means to prevent alleged nuisance other than the close of the lime kiln. The learned Counsel for the petitioner has submitted that he is prepared to comply with any direction or order to instal any machinery or appliances or any step to be taken to prevent emission of smoke and dust to check pollution and the alleged nuisance if any, if necessary as advised by the experts in the matter or by the court.
10. In view of the above discussion, I am of the view that the impugned order is liable to be quashed being against the expressed provisions of Section 142 Cr.P.C. and also in the interest of justice. The judgments of the Apex Court relied upon by the non-petitioner No. 2 are distinguishable on facts with the present case, wherein the factories were established in Delhi not permitted by the provisions of the Master Plan or the directions by Pollution Control Board to increase the diameter and height of circular chimney, planting of treas and disposal of solid waste were not carried out and no consent was obtained under the Water (Prevention & Control of Pollution) Act. 1974. Hence the factories were ordered to be closed.
11. In the result, the impugned order dated 7.2.98 is hereby partly set aside to the extent it orders the closing of the lime kiln. The learned Sub Divisional Magistrate, Phalodi is directed to hear both the parties again after giving them reasonable opportunity to place material on record and to pass order under Section 142 Cr.P.C. in accordance with law within one month from the date of receiving copy of this order. It is hereby further ordered that the petitioner shall keep his lime kiln closed till 30th April, 1999. The record be sent immediately.