Smt. Atasi Chatterjee And Others vs The State Of West Bengal And Others
2022 Latest Caselaw 2734 Cal

 AD. 185.
May 11, 2022.
MNS.


                                 WPA No. 7790 of 2022

                            Smt. Atasi Chatterjee and others
                                          Vs.
                          The State of West Bengal and others


                         Mr. Sanat Kumar Roy,
                         Mr. Abhishek Banerjee

                                               ...for the petitioners.

                         Mr. Pantu Deb Roy,
                         Mr. Anand Farmania

                                               ...for the State.

                         The grievance of the writ petitioners is

                primarily that, upon the petitioners having applied for

                replacement of the original vehicle, which has turned

                to scrap after an accident, by an existing vehicle of

                higher     model    insofar    as   the   environmental

                specifications     are   concerned,    the   respondent

authorities are not deciding on such application and

insisting upon production of a Bharat Stage (BS)-III

certificate for the vehicle.

Learned counsel places reliance on the

specific language of the Notification dated August 7,

2012 and submits that the case of the petitioners is

squarely covered by Schedule-III (replacement of

vehicle), Clause (F), sub-clause (b) pertaining to the

column which covers areas excluding the Kolkata

Municipal Corporation area and the areas under Salt

Lake and Lake Town Police Stations and other areas

within the Kolkata Metropolitan Area (KMA).

It is contended that the authorities are insisting

upon production of a BS-III certificate, despite the

petitioners' existing vehicle, which is sought to be

replaced, having a BS-II certificate, which is

sufficient, being a higher model than the scrapped

vehicle.

Learned counsel further contends that even

the latest order of the National Green Tribunal,

passed in Original Application No. 33/2014/EZ dated

August 11, 2016, is besides the point and the

discussion therein, insofar as the Notification dated

August 7, 2012 is concerned, was not directly on the

issue at hand and, is, not binding on the petitioners.

Leaned counsel appearing for the respondent-

authorities, at the outset, submits that the writ petition

is premature, insofar as the application for

replacement of vehicle filed by the writ petitioners is

still pending decision.

It is further submitted, by placing reliance on

an order of the Joint Secretary to the Government of

West Bengal dated April 26, 2013 vide memo No.

1643-WT/3M-38/2013, that the same is the latest

order governing the field and stipulates that even for

areas outside Kolkata, the applicants have to

produce BS-III certificates for the vehicle sought to

brought in as replacement.

By placing reliance on the judgement of the

National Green Tribunal in O.A. No. 33/2014/EZ (Shri

Subhas Datta Vs. State of West Bengal and others) it

is further stressed that the National Green Tribunal

clearly held that for the rest of the State of West

Bengal other than the Kolkata Municipal Corporation

and areas under Salt Lake and Lake Town Police

Stations, production of BS-III certificate is mandatory.

As such, the petitioners fall short of the requirement

of law, it is submitted.

Learned counsel appearing for the

respondent-authorities further places reliance on the

second paragraph of the Notification dated August 7,

2012, where it has been stipulated that BS-IV norms

are applicable in the city of Kolkata with effect from

April 1, 2010 and BS-III norms are applicable for the

areas outside the city of Kolkata but within the State

of West Bengal.

It is, thus, contended that even apart from the

writ petition being premature, the grounds taken by

the writ petitioners, in support of production of BS-II

certificate, are not tenable in law.

A consideration of the cited judgement of the

National Green Tribunal indicates that the question

which fell for consideration therein was entirely

concerning the cities of Kolkata and Howrah, as

indicated clearly in the very first sentence of the said

judgment.

Even the subsequent paragraphs of the

judgment indicate that the zone of consideration by

the National Green Tribunal was the alarming

deterioration an air quality situation of Kolkata and

adjacent areas, including Howrah.

Only in such context, in paragraph - 25 of the

said judgment, the National Green Tribunal observed

that by Notification dated August 7, 2012, it was inter

alia prescribed that vehicles plying within the Kolkata

Municipal Corporation and areas under Salt Lake and

Lake Town Police Stations should have BS-IV

emission norms while in the rest of the State it was

required to be of BS-III.

A bare perusal of the Notification dated August

7, 2012, which is relied on by both sides, clearly

indicates that the general norms regarding emission

certificates are stipulated therein. It is clearly

mentioned in the said Notification that the directions

enumerated in the said notification were given in

respect of registration of new vehicle/grant of new

permit/replacement of existing vehicle.

Out of the said directions, schedule- (iii)

pertains specifically to replacement of vehicles and,

specifically sub-head (F) thereof, deals with

replacement of goods vehicle/bus.

In the third row thereunder, on the left hand

column, it is stipulated that the norms given in the

corresponding right hand column pertains to areas

excluding the Kolkata Municipal Corporation area

and the areas under Salt Lake and Lake Town Police

Stations and other areas within the jurisdiction of the

Kolkata Metropolitan Area (KMA).

On the right hand column, in clause (b), it is

provided that, if the incoming vehicle in respect of

replacement is an existing vehicle, replacement shall

be allowed on the conditions next following. Sub-

Clause (i) indicates that such vehicle must be of

similar nature or higher model including BS norms

compliance. Sub-Clause (ii) says that, if registered

with the same Registering Authority, the vehicle

should not be less than BS-II Emission Norms

complaint.

Clause (iii) thereof says that the existing

outgoing vehicle shall have to be covered under

Contract carriage/Stage carriage permit or be

scrapped with cancellation of existing registration

number.

In the case of the petitioners, clause (b) and

all its sub-clauses are applicable squarely.

In respect of the petitioners, the previous

vehicle met with an accident and was scrapped with

cancellation of existing registration number. Thus,

the petitioners are required to provide a BS-II

emission norms certificate, which is of higher model

in respect of emission norms compliance than the

previous vehicle, which was a BS-I model.

Hence, even a bare reading of the Notification

dated August 7, 2012 indicates that the BS-III norms

covers the Kolkata Metropolitan Area, including those

regions which fall outside the Kolkata Municipal

Corporation area and the areas under the Salt Lake

and Lake Town Police Stations, and does not extend

to areas beyond the KMA territory.

That apart, the decision of the National Green

Tribunal, as discussed earlier, deals with the

environmental situation in Kolkata and Howrah and

the entire consideration in the said judgment was in

such context. Taken in such context, paragraph- 25

of the same only deals with the Notification dated

August 7, 2012 insofar as the KMA is concerned.

Within the KMA area, two sub-classifications were

made by the National Green Tribunal - vehicles

plying within the Kolkata Municipal Corporation area

and the areas under Salt Lake and Lake Town Police

Stations (BS-IV) and the rest of the State (BS-III).

Taken in proper perspective, read in conjunction with

the actual Notification dated August 7, 2012, the

expression "the rest of the State" has to be

necessarily restricted to the rest of the State of West

Bengal falling within the "Kolkata Metropolitan Area",

apart from Kolkata, Salt Lake and Lake Town, as

opposed to areas of West Bengal falling outside the

Kolkata Metropolitan Area.

Hence, it is obvious that the respondent-

authorities are acting without jurisdiction in insisting

upon prior production of a BS-III certificate for the

vehicle of the petitioners with which the replacement

is proposed, even prior to deciding on the application

for replacement.

It is evident that, in view of the extant law, for

areas outside the Kolkata Metropolitan Area but

within the State of West Bengal, production of a

higher model (including a BS-II compliant vehicle)

than the one replaced is sufficient, in case of

proposed replacement of an existing vehicle in place

of a scrapped vehicle.

Hence, although no decision has yet been

arrived at by the respondent-authorities on the

application for replacement of the petitioners' vehicle,

the insistence on production of BS-III certificate is

unwarranted and uncalled for and has no relevant

bearing on the decision.

Hence, WPA No. 7790 of 2022 is disposed of

by directing respondent no. 2, that is, the Regional

Transport Authority, Purba Bardhaman to decide the

application for replacement made by the petitioners

as expeditiously as possible, in the light of the

observations made above, without insisting upon

prior production of a BS-III certificate for the existing

vehicle sought to be replaced for the previous

scrapped one. Such exercise shall be completed by

respondent no. 2, if necessary, upon giving adequate

opportunity of hearing to all concerned, as

expeditiously as possible, positively within June 11,

2022. Immediately thereafter, the respondent no. 2

shall intimate its decision to the writ petitioners for the

latter to take appropriate consequential steps

thereafter.

There will be no order as to costs.

Urgent photostat certified copies of this order,

if applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)