K.J. Sengupta, J.

1. THE appeal is at the instance of the State of West Bengal against the judgment and order of the learned Single Judge. THE learned Trial Judge by the impugned order has struck down Rule 88A of the West Bengal Motor Vehicles Rules, 1989 and also connected notification issued on 24th May, 2005. With the appeal the Writ Petition No. 25179 (W) 2005 is also heard as the petitioners challenge the same Rule and notification. THE facts for which appeal was preferred connected writ petition was filed are shortly put hereunder:

2. ON 17th March, 2005 the State Government amended the West Bengal Motor Vehicles Rules by inserting a new Rule 88A in the manner as follows: "88A. Power of the State Government to impose special conditions on permit restraining plying of transport vehicles (passenger as well as goods) beyond a particular age and in any particular area of the State. The State Government may, by issue of notification to be published in the Official Gazette, direct the State Transport Authority or the Regional Transport Authority, as the case may be, to impose such special conditions on issue of permit for transport vehicles as may deem fit restricting the plying of transport vehicles beyond particular age and in any particular areas of the State for safe movement of the vehicular traffic to avoid congestion and to reduce the level of automobile pollution and for safety of the passengers in public interest. The State Government may also impose such restrictions on the existing permit holders by giving prior notice of not less than sixty days"

The said Rule described as the West Bengal Motor Vehicles (Amendment) Rules, 2005 came into force on and from 17th March, 2005 being the date of notification.

3. PURSUANT to the said Rule the State Government issued notification dated 24th May, 2005 as follows:

4. IN the writ petition the petitioners basically challenged the vires of the said amended Rule and the said notification issued subsequently on the strength of the said Rules. The grounds for challenge of the Rule is that the State Government has no legislative competence to make the said Rule fixing age of the vehicle as this subject is the exclusive power of the Central Government under section 59 of the Motor Vehicles Act, 1988. As such the aforesaid amendment is wholly ultra vires provisions of the said Act of 1988. INvidious situation has been meted out to the operators having vehicles manufactured in December, 1989, moreover there cannot be any reasonable nexus with the object and reasons to be achieved for framing the said amended Rules as far as the vehicles plied within the Kolkata Metropolitan area and out side this area are concerned. The reasons given for the aforesaid amendment is wholly arbitrary and absurd. The other grounds mentioned in the writ petition in our view are not relevant for adjudication as the same are explanatory in nature.

The learned Advocate General Mr. Ray with Mr. Sandip Srimani learned Additional Government Pleader appearing in support of the appeal submits that the learned Judge overlooked that the rule making power is provided under sub-section (1) of section 96 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act) and sub-section (2) thereof contains illustration of the subject over which power can be exercised. He contends that language of sub-section (2) of section 96 makes it clear that the matters mentioned therein are not exhaustive, merely illustrative, and it is evident from first line of sub-section (2) beginning with words "without prejudice to generality of the forgoing power". The Rule making power really emanates from sub-section (1) which cannot be abridged by the illustration mentioned in sub-section (2). Legally statutory provision of this nature is dominated by sub-section (1) not by sub-section (2). Such proposition of law is firmly established by the judicial pronouncements and in this connection he has relied on a decision of Privy