Pratap Kumar Ray, J. (Oral). - (1.) Heard the learned Advocate appearing for the appellant. It is submitted by the learned advocate for the appellant that the learned advocate on record on behalf of the writ petitioner/respondent refused to accept the copy of the stay application, application under Section 5 of the Limitation Act as well as Memo of Appeal and as such all those documents have been sent to the writ petitioner/respondent by registered post with AD on 5th October, 2007.
(2.) The application under Section 5 of the Limitation Act is taken up for hearing. There is a delay of 289 days in preferring the appeal. From the impugned judgment it appears that the Learned Trial Judge directed grant of route permit in a route which is passing through the Central Business District, Calcutta and Howrah Railway Station and Howrah Bridge, a prohibitory zone in terms of notification dated 6th August, 2004 issued by the Transport Department, Government of West Bengal prohibiting grant of any permit in respect of route as would originate/terminate and/or pass through those areas concerned only to check the air pollution and congestion of the vehicle. The legality and validity of such notification has been upheld by the Division Bench of Calcutta High Court in the case of Sujata Ganguly & Ors. v. State of West Bengal & Ors. registered as F.M.A. No. 604 of 2004. As the grant of permit has been directed by the learned Trial Judge in a route which is in breach of the prohibitory notification, this Court is of the view that there is a prima facie merit in the appeal itself. It is a settled legal position that when there is a prima facie merit in the appeal itself the Court will not shut the door of justice only on the technical ground of limitation. It is the settled legal position now that the Court will condone the delay in respect of the case where there is a prima facie merit and/or arguable case. Reliance may be placed in the case of State of Nagaland v. Lipok A.O. reported in, 2005(3) SCC 752, Ram Nath Sao alias Ram Nath Sahu v. Gobardhan Sao reported in 2002 (3) SCC 195 : [2002(2) XC (S.C.) 1] and the judgment passed in the case of State of Haryana v. Chandramoni & Ors. reported in 1996 (3) SCC 132, a judgment of Three Judges' Bench. Furthermore on issue of sufficiency of cause, the Apex Court has dealt with the issue by declaring that the sufficient cause should be considered on the reflection of the averment as made thereof and such sufficient cause to be dealt with by the Court in consideration with pragmatism with justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. In paragraphs 5 to 10 cause of delay has been explained. Having regard to such, this Court is satisfied to condone the delay in preferring the appeal by the State. The delay accordingly stands condoned. The application under Section 5 of the Limitation Act is allowed.
(3.) The application for stay is taken up as on day's list for hearing. In view of our finding and observation in deciding the application under Section 5 of the Limitation Act it is noticed that there is prima. facie cage for considering the issue on merit in appeal in view of the mandatory order passed by the Learned Trial Judge directing grant of route permit as well as in view of the fact that in passing such judgment under appeal Learned Trial Judge failed to address the issue about the prohibitory --notification dated 6th August, 2004 and its impact thereof on the environmental condition and health hazards of the citizens residing in and around the Calcutta for whose benefit the prohibitory decision was taken by issuing the said notification. Considering that aspect of the matter we are of the view there should be an interim stay to the impugned judgment under appeal. Hence, there will be stay to the impugned judgment under appeal accordingly for a limited period of four weeks after vacation, with liberty to pray extension or vacation/modification of such order. Let affidavit-in-opposition be filed by two weeks after Vacation; reply, if any thereto, be filed by one week thereafter. The appellant is directed to communicate this order to the writ petitioner/respondent. Matter will appear four weeks after vacation. All parties concerned are to act on a signed xerox copy of this order on the usual undertakings. ;