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2001 DIGILAW 331 (CAL)

Dulu Ghosh v. State of West Bengal

2001-06-15

RONOJIT KUMAR MITRA

body2001
JUDGMENT 1. In this application, the petitioners prayed for the issuance of a Writ of Mandamus directing the respondents to act in accordance with the notice dated July 14, 1988 Annexure P-3 to the petition. According to the petitioner, the Motor Vehicles Act, 1939 had been repealed. The respondents were bound to act in accordance with the notice and not allow any Emission Testing Centre within 5 K.M. of any existing centres. Advocate appearing for the petitioner submitted that the provision for the State Government to make rules regulating .........in respect to the emission of smoke etc. as contained in Section 70 of the Motor Vehicles Act, 1939 had been retained in Section 110 (g) of the new Act being Motor Vehicles Act, 1988. He argued that there was no inconsistency and, therefore, in terms of Section 217 (a) of the new Act, the notification dated July 13, 1988 was valid and respondents were bound to effect to the provision contained therein. 2. Under the old Act in Section 70, it was submitted by Advocate appearing for the respondent-authorities the State Government had been authorised to frame rules and in Section 110 of the New Act, the Central Government had been empowered to make rules and that there was no provision under which the State Government would frame rules. He argued that the alleged notification dated July 13, 1988 had been issued by the District Magistrate, Burdwan and by virtue of the relevant provision contained in the new Act, the notification was not effective in law and would not be relied on. 3. The matter had been heard on an earlier occasion and Advocate for the respondent-authorities prayed for an adjournment and such adjournment was allowed, to enable him to obtain instruction in respect to his contention that the notice dated July 13, 1988 had been cancelled. Today, however, he was unable to produce any such notification of cancellation. He produced a letter dated June 1, 2001 issued by the District Magistrate to the petitioner, as also to the respondent No.5, where the petitioner and the respondent No.5 were requested to attend the meeting "for hearing regarding Auto Emission Centre at Durgapur': I am unable to understand why such a meeting was convened by the District Magistrate, Burdwan. It would appear to me that the meeting had been convened without reference to the existing law. It would appear to me that the meeting had been convened without reference to the existing law. Indeed, Section 217 does keep alive any notification etc. which had been taken under the repealed enactment and was in force immediately before the commencement of the enactments "so far as it is not inconsistent to the provision of the act", had been made to "he deemed to have been issued, made, granted, done or taken under corresponding provision of this act". Section 70 of the old Act corresponds to Section 111 of the new Act, where there is a specific provision for the State Government to make rules in respect to "(d) the periodical testing and inspection of vehicles by prescribed authorities'" The provision which was included in Section 70 (2) of the old Act has also been prescribed in the new Act, in Section 110 (g). It would further appear in Section 258 (2) and (3) of the West Bengal Motor Vehicles Rules, 1989 that specific provision has been made for "test for smoke emission level and other pollutant level for motor vehicles" and "pollution under control certificate". 4. In these circumstances, I would be inclined to find that on a plain reading of the provisions of law as contained in the abovementioned sections of the new Act, and by virtue of Section 217(2) (a) relating to "repeal and savings" the power to make rules by the State Government in respect to prevention of emission of smoke has been retained in the new Act. It was significant that the new act provided for, "the periodical testing and inspection of vehicles by prescribed authorities" arid that the application of every motor vehicle would carry with it a "pollution under control certificate". The District Magistrate has acted in the capacity of the Registering Authority, and I do not find it anomalous. 5. For these reasons, this application is allowed. The State authorities were empowered to give directions and make rules and these rules which it had made prior to the enactment of the new Act continued to remain valid. The respondents are estopped from denying the contents of the notice dated July 14, 1988 being Annexure P-3 to the petition and are bound by the same. The State authorities were empowered to give directions and make rules and these rules which it had made prior to the enactment of the new Act continued to remain valid. The respondents are estopped from denying the contents of the notice dated July 14, 1988 being Annexure P-3 to the petition and are bound by the same. The respondent-authorities, I am of the view, have failed to appreciate the law and in violation purported to grant approval of a testing centre within 5 K.M. of the centre being operated by the petitioner. Such grant is bad and in contravention with the existing law. The grant of the testing centre in favour of the respondent No.5 is set aside and shall be of no effect either in law or otherwise. This application is, accordingly, disposed of. However, this shall not restrain the respondent-authorities from taking any decision in accordance with law.