S. M. SONI, J. ( 1 ) IT appears that under Sec. 5 of the Environment (Protection) Act, the State government passed an order of closure as Unit was not meeting with the norms prescribed by the Gujarat Pollution Control, Board ("gpcb" for short ). The said order of closure was implemented by disconnecting the electric supply on 11th September, 1995. The Unit thereafter gave undertaking on 13th October, 1995 for dismantling the carbonizing Unit. Cabonizing process in a textile processing house puts such Units in the category of highly polluting industries and were ordered to be closed down forthwith as per paragraph 135-A-I of the judgment dated 5th August, 1995 in case of Pravinbhai J. Patel vs. State of Gujarat, 1995 (2) GLR p. 1210. The inspection report prepared by officer of the GPCB on a visit on 21st November 1995 indicates that carbonizing plant was dismantled. It appears that thereafter electricity supply to the Unit was restored. On 22. 11. 1995 sample of the trade effluent was collected by the officers of the GPCB and the trade effluent as per analysis report was no as per the norms laid down by the GPCB. It appears that on 5. 2. 1995 consent application of the Unit under the Water (Prevention and control of Polution) Act, 1974 came to be rejected. There is nothing to show that after the consent was rejected, the Unit preferred an appeal or applied for a fresh consent but record indicates that Unit continuted production activities. On 8th March, 1996 and 26th april, 1996, the samples of trade effluent were collected and analyzed and the report of analysis clearly reveals that on both the occasions, the Unit was not in a position to meet with the norms laid down by the GPCB. The Unit however continued the manufacturing process polluting the environment. ( 2 ) IT appears that on 1. 6. 1996 there was inspection by the GPCB and surprisingly officers of the GPCB found that carbonizing process was being carried out and the effluent treatment plant was not operational. It also reveals that the acidic content for the effluent was very high (2. 29) as against the prescribed permissible limit of (6. 5-8. 5 ). It also appears that various parameters such as COD, oil and grease, sulphates and per cent sodium were also beyond the norms prescribed by the GPCB. It also reveals that the acidic content for the effluent was very high (2. 29) as against the prescribed permissible limit of (6. 5-8. 5 ). It also appears that various parameters such as COD, oil and grease, sulphates and per cent sodium were also beyond the norms prescribed by the GPCB. It also indicates that Unit was by passing untreated effluent through an underground pipe and thereafter discharging the same as if this effluent was being discharged after necessary treatment. It appears that in view of this report on 6. 6. 1996, the Court (Coram : R. A. Mehta, Acting C. J. and M. S. Shah, J.) issued notice to the Unit Bhavna Textile Pvt. Ltd. , State Government, GPCB and ahmedabad Electricity Company (for short "aec" ). The Court directed AEC to disconnect the electric supply to the above Unit and Court also directed the Unit to stop the manufacturing activity. Looking to the grave effect, the Unit was also directed to desist from using diesel generating sets with a futher direction that if the Unit is found to be in possession of any diesel generating set at any time, the same shall he sealed by aec. The Court directed the State Government and the GPCB to ensure immediate compliance of the directions mentioned above. ( 3 ) IT appears that on 15. 6. 1996 electric supply came to be disconnected, however, diesel generating sets were not sealed but were sealed on 23. 7. 1996 and AEC submitted its report dated 23. 7. 1996 in this behalf. Prior thereto on 17. 6. 1996, the GPCB visited the unit and reported that the production plant was in swing using diesel generating sets. However, in view of less quantity of trade effluent being discharged no sample was taken. Though consent was rejected much earlier it is a matter of surprise that the Unit was found discharging acidic trade effluent and neither the GPCB nor the State Government has thought it fit to take immediate action in the matter. It is required to be noted that the acidic effluent was being discharged in open nala taking the same to river Sabarmati. The unit after closure should have been under constant supervision by the GPCB. Consent came to be rejected as the Unit was not able to treat the effluent in accordance with the norms laid down by the GPCB. It is required to be noted that the acidic effluent was being discharged in open nala taking the same to river Sabarmati. The unit after closure should have been under constant supervision by the GPCB. Consent came to be rejected as the Unit was not able to treat the effluent in accordance with the norms laid down by the GPCB. Prior thereto officers of the GPCB found that the carbonizing process was going on the ultimately undertaking was given by the Unit to dismantle. On. 1. 6. 1996, it was reported that carbonizing process is being carried on by the unit and the Court passed an order on 6. 6. 1996 which we have referred earlier. Board officers were aware of these aspects and though on 17. 6. 1996 they found that in spite of an order of closure Unit has continued its operation using generating sets discharging highly acidic waste water yet the board has remained quiet. Apart from other norms not being met with these serious lapses committed by the Unit including that of bypassing untreated industrial effluent should have alerted the GPCB and the GPCB ought to have taken immediate action. ( 4 ) WHEN a question is put as to why the Board is not taking action, standard reply is given that the Board is not in a position to exercise powers under amended Sec. 33-A of the Water (Prevention and Control of Pollution) Act, 1974. Section 33-A is not applicable to the State of Gujarat as amendment is not adopted by the State of Gujarat, and therefore, in all matters wherein the question arises. The Board submits that request is made to government to exercise powers under Sec. 5 of the Environment (Protection) Act, 1996. For this purpose reliance is placed on the decision of this Court in Pravinbhai s case (Supra) wherein the Court has held in paragraphs 9 and 10 as under :"9. Notwithstanding the fact that Resolution under Art. 252 had bene passed by the Gujarat Assembly, which had the effect of making Water Act applicable to the State of Gujarat, no Resolution has been passed under Art. 252 (1), making the Amendment Act of 1988 applicable to the State of gujarat. The result of this is that neither Sec. 33-A, nor some other important amendment made in the parent Act have been extended to the State government. ""10. The result of this is that neither Sec. 33-A, nor some other important amendment made in the parent Act have been extended to the State government. ""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 Sec. 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, microorganisms and property. Under Sec. 23, the Central Government may, by Notification delegates 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 Sec. 5, which gives the Government power to issue directions. This provision, which is applicable in the State of Gujarat, is analogous to the aforesaid Sec. 33-A 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", Sec. 5 of the Environment (Protection) Act can be involved whenever the occasion arises. " ( 5 ) LEARNED Counsel for the GPCB submits that they are dependent for closure on the state of Gujarat as the powers are to be exercised under Sec. 5 of the Environment Act by the State of Gujarat. Under Sec. 33-A of the Water Act, the GPCB is not able to exercise powers as same is not adopted by the State Of Gujarat. It is required to be noted that Secs. 32 and 33 of the Water Act empowers the Board to take action. It appears to us that in number of matters at appropriate stage actions are not taken. If the powers are given to board to issue directions as contained in Sec. 33-A of the Water Act by adopting the said provision, the Board will not be able to say that though the Government is moved action is not taken by the Government. Ultimately, it is the responsibility of the GPCB to control pollution. If the powers are given to board to issue directions as contained in Sec. 33-A of the Water Act by adopting the said provision, the Board will not be able to say that though the Government is moved action is not taken by the Government. Ultimately, it is the responsibility of the GPCB to control pollution. When the Parliament has thought it fit to confer power on the Pollution Control board to issue directions of the nature indicated in Sec. 33-A of the Water Act, we feel that if the resolution is passed as contemplated under Art. 252 (1) of the Constitution of india adopting amended provision passing on the bucks could be avoided, much of the delay can be avoided and action can be taken immediately. The Board will have effective measures. In absence of powers, the Board; it appears is not in a position to take suitable measures as submitted by the learned Counsel for the GPCB. In a case like this, either complaint will have to be filed in a Court of law for committing the breach or else it can move the Court for an order under Sec. 33. According to the learned Counsel for the gpcb if the powers are conferred on the Board, then, effective measures can be taken immediately so as to prevent pollution. Top priority is required to be given to take immediate action for stopping pollution if the Board even on examination find that strict action of closure is required to be taken against the Unit. The Board feels helpless as the board has to move the Government for appropriate orders. It is pointed out that in many cases it happens that in spite of worst report against the Unit even if the State government is moved, the State Government merely gives warning to the Unit calling upon the Unit to meet with the norms and me purpose is thus frustrated according to the learned Advocate. We hope that the State Government shall do the needful in the matter so as to see that the Board empowered to take action in such case as contemplated under Sec. 33-A of the Water Act as amended by Act No. 53/1988. ( 6 ) INITIALLY, on behalf of the respondents stand was taken as if they have committed no wrong. ( 6 ) INITIALLY, on behalf of the respondents stand was taken as if they have committed no wrong. The report of Pandya Committee reveals that persons were found in the factory premises where the lights were on which had come to the switched off making it all dark. In the process house (i. e. , factory) at the relevant time there was full light. By means of the head light of the jeep they could observe about 100 persons running out of the factory premises. Five security persons who were initially hesitating to give their names later on disclosed their names. It appears that 54 vehicles were found parked in compound of the premises. Committee also found one other Unit within the precinct of the factory in the name of Preeti Textile with entrance shutters closed. From the premises of Unit concerned documents were collected at random and were finally packed in cartoons at about 11. 30 p. m. in presence of the Directors of the Company who arrived at the factory premises by that time and these two persons disclosed their identity as Vedprakash Chiripal and brijmohan Chiripal Directors of the Company. Committeee has placed on record report in detail. It is pointed out that the boiler was in operation, white fumes were seen coming out of the chimney of the boiler. It is also indicated that adjoining to the factory premises also a Unit was engaged in process and upon questioning it was informed that it was a unit known as Vishal Fabrics. Its Director was Mr. Sanjay. The Committee found that there was an interconnected water pipeline between the two Units. The report in detail which we may not discuss here gives an impression that Unit was working at the relevant time. Affidavits earlier filed refuting all these findings of the Committee are placed on record. Affidavits on behalf of the GPCB sworn by Assistant Environment Engineer and deputy Environmental Engineer are filed. At the later stage on behalf of each respondent affidavit is filed to the following effect:"1. That I am filing this affidavit for the limited purpose of tendering my unconditional apology to this Honble Court and to assure this Honble Court that in future such mistakes will not be committed. At the later stage on behalf of each respondent affidavit is filed to the following effect:"1. That I am filing this affidavit for the limited purpose of tendering my unconditional apology to this Honble Court and to assure this Honble Court that in future such mistakes will not be committed. " ( 7 ) THUS, the earlier contentions raised in the affidavit are not pressed and the learned counsel fairly stated that in view of the fact that breach of the order passed by this Court is committed by the respondents and respondents are feeling sorry for obstructing the committe in not co-operating. In fact, they have tendered apology to the Committee. As unconditional apology is tendered, the question now arises in view of tendering an apology as to what order should be passed for committing breach of the order passed by this Court and obstructing the members of the Committee. In view of the facts narrated hereinabove, this Court can exercise the powers under the provisions contained in the contempt of the Court Act or under Order 39 Rule 2-A of the Civil Procedure Code or under Art. 215 of the Constitution of India. ( 8 ) MR. Pandya fairly submitted that what should be the sentence should be decided looking to the facts and circumstances of the case and the manner in which breach is committed. He further submitted that signal must go to the industry that in matter of pollution it is not easy for an industry to pollute the environment by committing breach of the order passed by the Court. He submitted that breach of pollution law itself is required to be treated very seriously and once having committed a breach of pollution law if there is an order of closure and if the breach is committed of that order a serious view of the matter must be taken. It is required to be noted at this stage that the order of closure is in operation even today. Mr. Nanavaty, learned Counsel appearing for the Unit submitted that Unit shall unconditionally pay towards the betterment of environment the profit of rs. 9,60,000/- (Rupees nine lakhs sixty thousand) which is earned during the period of breach committed by the Unit. He submitted that Rs. 4,60,000/- (Rupees four lakhs sixty thousand) has been deposited earlier. Mr. Nanavaty, learned Counsel appearing for the Unit submitted that Unit shall unconditionally pay towards the betterment of environment the profit of rs. 9,60,000/- (Rupees nine lakhs sixty thousand) which is earned during the period of breach committed by the Unit. He submitted that Rs. 4,60,000/- (Rupees four lakhs sixty thousand) has been deposited earlier. He fairly stated that this amount be treated towards betterment of environment and remaining amount shall be paid within a period of three weeks from today. So far as the breach is committed, it is also required to be seen that in all six persons are responsible. We direct that three persons, namely, Shri Rajesh P. Bindal, Shri Vijay Agrawal, Shri Kailashnath Upadhya each shall pay sum of Rs. 1,00,000/- (Rupees one lakh ). Shri Vedprakash Chiripal and Shri Brijmohan Chiripal each shall pay sum of Rs. 2,50,000/- (Rupees two lakhs fifty thousand ). It is further directed that the Unit shall pay a sum of Rs. 25,000/- towards the cost of the Court Committee. Manager Jayendra R. Rajput has orally regretted through his learned Counsel for the act, omission and commission on his part and we direct that he shall pay a sum of Rs. 10,000/- (Rupees ten thousand ). This amount shall go towards the betterment of environment charges. Mr. Nanavaty states that a sum of Rs. 5,00,000/- will be deposited within a period of one week and the remaining amount shall be paid within two weeks thereafter. ( 9 ) MR. Nanavaty, learned Counsel for the defaulters contends that in the facts and circumstances of the case and also because the respondents and others who are connected with the breach when have agreed to pay substantial amount towards betterment of pollution, the Court may take a liberal view in the matter so far as punishment is concerned. If Court comes to conclusion to impose sentence of imprisonment, then the same may be suspended on such undertaking that may be directed by this Court to be filed and in case of breach of such undertaking within a particular time said order of suspension may be recalled and the respondents and others may be directed to undergo the sentence. He contends that fear to undergo sentence will effect more than undergoing sentence, particularly for businessmen and suspension of sentence will act more deterrent. He contends that fear to undergo sentence will effect more than undergoing sentence, particularly for businessmen and suspension of sentence will act more deterrent. Question about leaving the field may not arise after the order so that order of suspension of sentence may become infructuous, it is submitted that present management shall run the unit at least for three years. ( 10 ) IN view of what we have stated hereinabove, we hold the respondents guilty of breach of order, a deliberate breach and pass the following order : ( 11 ) EACH respondent shall undergo a sentence of 2 months Simple Imprisonment and shall pay a fine of Rs. 1,000/- (Rupees one thousand) and in default of payment of fine undergo S. I. for 15 days. However, we direct that the sentence be suspended on filing an undertaking by respondents that for a period of three years no breach of pollution law will be committed either independently or collectively or severally or jointly either in the name of this industry or industry wherein they have interest and shall give further undertaking that the Directors of the present Unit shall not be changed for a period of three years. The Mg. Director shall give undertaking that the company shall strictly follow the norms laid down by the GPCB and shall commit no breach of pollution laws. The said order of sentence shall become operative the moment any of the respondents/unit is found guilty of committing breach of pollution laws. The order of fine is not suspended. Hence, the fine be paid and the undertaking referred above be filed within a week. ( 12 ) RULE is made absolute accordingly in so far as it relates to breach of order and the contempt proceedings arising therefrom. ( 13 ) GPCB to monitor and place on record the reports. ( 14 ) S. O. to 1st September, 1997. .