GOVERNMENT OF KARNATAKA DEPARTMENT OF FOREST, ECOLOGY AND ENVIRONMENT Vs. ST. PHILOMENAS HOSPITAL, REPRESENTED BY ITS ADMINISTRATOR AND OTHERS

JUDGEMENT

(1.) ALL the above appeals arise out of the judgment passed in W. P. No. 451 of 2000 and connected Writ Petitions, wherein the Learned Single Judge of this Court by order dt. 16.7.2003 has held that Rule 8(3) of the Bio Medical Waste (Management and Handling) Rules 1998 (herein after called as 'Rules' for short) is ultra vires the provisions of the Environment (Protection) Act, 1986 (hereinafter called as 'Act' for short) and cannot be sustained and consequently setting aside the notification issued by the State Government dt. 17.7.1999 and collection of fees by the Appellant - Prescribed Authority for Bio - Medical Waste (Management and Handling) Rules. 1998 which is Karnataka State Pollution Control Board.

(2.) THE Petitioners filed Writ Petitions under Article 226 of the Constitution of India for declaration of Rule 8(3) of the Rules as ultra vires the provisions of the Act as the Act does not enable imposition of fee by the Central or State Government to generate the fund for monitoring of agencies who are authorised as agents to levy the fee as provided under Rule 8(3) of the Rules, is ultra vires as the Rules can be framed for implementing the provisions of the Act and unless there is a substantive provision enabling imposition of fee, no fee can be imposed by the delegatory authority under the Rules as the power which the authority itself cannot possess, cannot be delegated. It was also contended that in the absence of any provisions enabling imposition of the fee after monitoring the function of the authorities by the competent authority, i.e., Karnataka State Pollution Control Board (hereinafter called 'Board') in this case, levy of such fee by notification issued by the Government dt. 17.7.1999 at the rate of Rs. 25/ - for application and Rs. 100/ - per bed per annum, is declared to be ultra vires and consequential collection of the fee by the Board is without jurisdiction. The Writ Petitions were resisted by filing statement of objection on behalf of the first Respondent - Board. However, Respondent Nos. 2 and 3, Union of India and Government of Karnataka did not file any objection statement and it is averred in the statement of objections filed by the first Respondent - Board that the imposition of fee is attributable to Section 25 of the Act R/w Sections 6, 8 and 25 of the Act. Section 25 of the Act enables framing of the Rules by the Central Government for carrying out the purpose of the Act and under Sub -section (2) Clause (f) of Section 25 of the Act the functions of the environmental laboratories, the procedure for the submission to such laboratories of samples of air, water, soil and other substances for analysis or test; the form of laboratory report; the fees payable for such report and other matters to enable such laboratories to carry out their functions under Sub -section (2) of Section 12; and it was contended that since the Board is required to generate finance for supervising the implementation of the Act, monitoring the provisions of the Act as the persons who are authorised to issue authorisation in Rule 8 of the Rules, prescription of the fee is justified. The Learned Single Judge after considering the contention of the counsel appearing for the parties and the reply arguments, held that there must be specific provision in the Act for imposition of fee and in the absence of any provision enabling imposition of fee, the said power cannot be delegated and under delegated legislation Rules cannot be framed imposing fee as Rules are made only for implementation of the provisions of the Act and to provide procedure for the same. In the absence of any provision in the Act enabling imposition of the fee as per the notification issued by the State Government impugned in the Writ Petitions, imposing of fee as per Rule 8(3) of the Rules in the facts of the case, the provision of the Act is ultra vires. He has relied upon the decision of the Hon'ble Supreme Court in the case of Ahmedabad Urban Development Authority Vs. Sharadkumar Jayantikumar Pasawalla and others, AIR 1992 SC 2038 , wherein the Hon'ble Supreme Court has held as follows: 6. After giving our anxious consideration to the contentions raised by Mr. Goswami, it appears to us that in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and /or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power. The facts and circumstances in the case of District Council of the Jowai Autonomous Distt., Jowai and Others Vs. Dwet Singh Rymbai etc., AIR 1986 SC 1930 ) are entirely different. The exercise of powers by the Autonomous Jantia Hills Districts are controlled by the constitutional provisions and in the special facts of the case, this Court has indicated that the realisation of just fee for a specific purpose by the autonomous District was justified and such power was implied. The said decision cannot be made applicable to the facts of this case or the same should not be held to have laid down any legal proposition that in matter of imposition of tax or fees, the question of necessary intendment may be looked into when there is no express provision for imposition of fee or tax. The other decision in Khargram Panchayat Samiti and Another Vs. State of West Bengal and Others, JT (1987) 2 SC 266 also deals with the exercise of incidental and consequential power in the field of administrative law and the same does not deal with the power of imposing tax and fee. That in a fiscal matter, it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. Such power of imposition of tax or fee by the delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee and held that decision in the case of B.S.E. Brokers Forum, Bombay and Ors. etc. Vs. Securities and Exchange Board of India and Others etc., AIR 2001 SC 1010 is not helpful to the Respondents as there was specific provision under Section 11(2)(k) of the Act providing for imposition of regulatory fee and therefore, the Hon'ble Supreme Court upheld imposition of fee and accordingly passed the order impugned in these appeals. Being aggrieved by the order dt. 16.7.2003 passed in W. P. No. 451 of 2000 and connected Writ Petitions W.A. Nos. 7673 -7678 of 2003 and 8091 -8097 of 2003 are filed by Respondent No. 1 -Board and W.A. Nos. 828 and 832 -833 of 2004 are filed by the third Respondent - State of Karnataka. It may be noted here itself that the Union of India was the second Respondent in the Writ Petitions has not chosen to file any appeal being aggrieved by the order of the Learned Single Judge dt. 16.7.2003, wherein Rule 8(3) of the Rules framed by the Central Government has been held to be ultra vires of the Act.

(3.) IT may be noted at the outset that the order passed by the Learned Single Judge in W P No. 451/2000 c/w W P No. 41005/1999 and in the connected Writ Petitions the above said decision is followed and they are disposed of on the same terms as in W P No. 451/2000 c/w W P No. 4 1005/ 1999.