STATE OF W B Vs. ARJUN KUMAR IZADDAR

JUDGEMENT

(1.) The learned Counsel appearing on behalf of the respondent/writ petitioner does not seriously oppose the application made under Section 5 of the Limitation Act by the petitioner/appellant. We accordingly, allow the application for condonation of delay.

(2.) While considering the application for stay we found that apart from grievances on merit of the matter, there is a substantial grievances on the part of the appellant/petitioner and that is non-service of the writ petition upon the appropriate respondent at or before the impugned order was passed. It appears that a notice of filing of the writ petition as well as the notice of moving the same was given to the learned Junior Advocate of the Government attached to this Court. It appears to be the contention of the respondents in the writ petition that no notice of moving the writ petition nor the filing of the same nor a copy thereof was served upon them. It is true that our High Court Rules do directed service of a copy of the writ petition intended to be moved against the State to be served upon the Government Pleader attached to the High Court but such service does not dispense with service of the copy of the writ petition as well as the notice of moving the same upon the other respondents and an order passed only on service of copy of the writ petition upon the Government Pleader should therefore, be deemed to be an order made without notice to the respondents.

(3.) In those circumstances, we fee! that the matter must be remitted back to the learned Trial Judge for the purpose of decision on merit after giving the appropriate respondents an opportunity of speaking their part of the story in relation to the contentions raised in the writ petition. We accordingly, treat the appeal as on the days, list and dispose of the appeal as well as the application for stay by setting aside the order under appeal and by remitting back the matter to the (earned Trial Judge with liberty to the appellant before us to file affidavit-in-opposition to the main writ petition within three weeks from today; reply thereto, if any, be filed two weeks thereafter. Thereafter, it shall be open to the parties for mentioning before the learned Trial Judge, having determination for fixation of an early date of hearing. There shall be no order as to costs.