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4. It is further alleged that representations have been filed before the Gujarat Pollution Control Board (hereinafter referred to as "G.P.C.B.") since about 1978 and other authorities, but no action has so far been taken. The contention of the petitioners is that the provisions of the three Acts, dealing with Environment, have been infringed by the Industries, the three Acts being : The Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as "The Water Act"), The Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as "The Air Act") and the Environment (Protection) Act, 1986 (hereinafter referred to as "The Environment Act"). The main prayer in the writ petition is that action should be taken against the respondents, viz., the State of Gujarat, the Gujarat Pollution Control Board (G.P.C.B.), the Gujarat Industrial Development Corporation (G.I.D.C), the Ahmedabad Municipal Corporation and the Gujarat Electricity Board for not taking steps to control and curb the water pollution of Khari river, which is resulting in the violation of the petitioners' fundamental rights under Article 21 of the Constitution of India. Direction is also sought for taking steps to control the water and air pollution and there is also a claim made for payment of compensation due to the loss suffered due to air and water pollution. Another prayer is for directions to be issued for providing proper drainage/gutter facilities for letting out trade effluent/waste water after treating them in order to arrest the pollution of water.

9. Notwithstanding the fact that Resolution under Article 252(1) had been passed by the Gujarat Assembly, which had the effect of making the Water Act applicable to the State of Gujarat, no Resolution has been passed under Article 252(1), making the Amendment Act of 1988 applicable to the State of Gujarat. The result of this is that neither Section 33A, nor some other important amendments made in the parent Act have been extended to the State of Gujarat.

10. The Environment (Protection) Act, to a certain extent, overlaps the Water Act. The reason for this is that the word 'environment', as defined in Section 2(a) of the Environment (Protection) Act includes water, air and land and the interrelationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property. Under Section 23, the Central Government may, by Notification, delegate its powers under this Act to any Officer, or the State Government or other authority. It is not in dispute that under this provision, the power of the Central Government under this Act has been delegated to the State Government. One of the provisions contained in this Act is Section 5, which gives the Government power to issue directions. This provision, which is applicable in the State of Gujarat, is analogous to the aforesaid Section 33A of the Water Act, which, however, is not applicable here. Nevertheless, even with regard to water pollution, because of the definition of the word 'environment', Section 5 of the Environment (Protection) Act can be invoked whenever the occasion arises.

75. Under Section 5 of the Environment Act, the G.P.C.B. could and ought to have issued directions to the units which were causing pollution to abide by the law. No effective directions have been issued in this regard. Even disconnection of electricity and/or water, in order to discipline the industrial units, was not directed.

Submissions of the Government:

76. It was contended by the learned Advocate General that under Section 5 of the Environment Act, various options were open to the State. Ordering closure was only one of them. It was submitted that the Court should not give a general direction of closure only. However, where no primary treatment plant had been installed, then the closure may be ordered and when the Court had already given time in March, 1995 for setting up of the secondary primary plant, then more time can be given by the Court for completion of these plants.

Directions:

131. Under Section 5 of the Environment Act, appropriate directions are to be issued by the State Government. Normally, a Court would not pass an order, directing the closure of any unit. Where, however, there is a complete abdication of authority by the Government and the Court comes to the conclusion, like in the present case, that the Government has failed to discharge its statutory duty, and which failure has resulted in the violation of the fundamental right of the petitioners and lacs of other people, guaranteed under Article 21 of the Constitution, then the Court is left with no option but to issue appropriate direction to the Government to pass the necessary orders under Section 5 of the Environment Act. We would like to observe that non-enforcement of a good law will invariably lead to the arising of an ugly situation. The Environment Acts were passed by the Parliament because the need had arisen to give statutory protection to the environment because degradation of the same was adversely affecting the quality of life. Having seen that the Government and the G.P.C.B. have shied away from taking effective steps under the Environment Act in protecting the environment or preventing its destruction in its desire to industrialise, it is necessary to issue directions which are required to be followed by the State Government and also to make suggestions or recommendations for the consideration of the Government.