(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 v. Sharadkumar Jayantikumar Pasawalla and Ors., 1992 AIR(SC) 2038, wherein the Hon'ble Supreme Court has held as follows:
(3.) We have heard the learned Counsel appearing for the Appellants in these appeals and the learned Counsel appearing for Writ Petitioners in the respective impugned Writ Petitions and the learned Government advocate appearing for the State Government.