HINDUSTAN STEEL LIMITED v. DISTRICT JUDGE DURG — 1975 DIGILAW 171 (MP)

JUDGMENT : ( 1. ) THIS is a petition under Article 226 of the Constitution of india for a writ of certiorari seeking to quash the orders of the District Judge, durg, (Annexures m and N/1 ). ( 2. ) THE Petitioner Company Hindustan Steel Limited has a steel plant at bhilai and a large township under the administrative control of the company. The company is a Government Undertaking and it is not disputed that the area under its administrative control would be governed by the Public Premises {eviction of Unauthorised Occupants) Act, 1971 (Act No. 40 of 1971) (hereinafter referred to as the Act ). For the convenience of the employees of the petitioner residing in different sectors of the Bhilai Nagar township, the Company has either constructed shops and given them on lease or has given on licence plots of land to businessmen for construction of temporary structures over them for running shops. Respondent No. 3 was allotted a plot admeasuring 20 x 40 in sector No. 1 of the Bhilai Nagar. Respondent No. 3 availed of the allotment and after duly executing an agreement (Annexure E) constructed a shop over it. It appears, from the allegations made in the petition, that respondent No. 3 made extensive encroachment and made unauthorised construction over the plot allotted to her. Respondent No. 3 was then asked to remove the unauthorised construction, but she did not pay any heed to such communications. Thereafter, the petitioner moved the Estate Officer, appointed under the Act, for her eviction from the premises. The Estate Officer, after hearing both the parties, according to the procedure prescribed under the Act, passed an order (Annexure-J) directing respondent No. 3 to vacate the plot and to pay dues, damages and mesne profits. The order of the Estate Officer was passed under sections 5 (1) and 7 of the Act. ( 3. ) RESPONDENT No. 3 filed an appeal against the order of the Estate officer before the appellate officer, who is the District Judge, Durg at Rajnandgaon on 18-9-1974. Respondent No. 3 also applied for an ad interim stay. The District Judge, by his order dated 5-10-1974, stayed the operation of the order of the Estate Officer subject to respondent No. 3 depositing Rs. 5000 within a period of 10 days. Respondent No. 3 had not deposited the amount of Rs. Respondent No. 3 also applied for an ad interim stay. The District Judge, by his order dated 5-10-1974, stayed the operation of the order of the Estate Officer subject to respondent No. 3 depositing Rs. 5000 within a period of 10 days. Respondent No. 3 had not deposited the amount of Rs. 5000, when on 20-12-1974 the appeal itself was dismissed in default for failure to appear on the date of hearing. On 21-12-1974, i. e. , on the next day, respondent No. 3 filed an application for restoration of the matter. ( 4. ) IT is thus clear that there was an order dated 5-10-1974 granting stay of the enforcement of the order passed by the Estate Officer directing eviction, damages and mesne profits in full on the condition that the respondent No. 3 makes a deposit by 15th October, 1974. The respondent No. 3 did not make such deposit and the stay order, therefore, became inoperative after 15- 0-1974. Thereafter, on 20th December 1974, the appeal itself was dismissed for non-prosecution as the respondent No. 3 failed to appear on the date of hearing. It is, however, true that on 21-12-74, respondent No. 3 moved an application for restoration of the appeal. At that time, he did not make any application, either for extension of time to make the deposit or for obtaining any other stay order. The application for restoration appears to be pending. However, after about 9 months, on 30th September, 1975, the respondent No. 3 moved an application to the appellate officer praying for stay of the enforcement of the order passed by the Estate Officer directing eviction, damages, etc. by stating that he had already applied for restoration of the appeal and it is apprehended that the petitioner may enforce the aforesaid order of the Estate Officer and may demolish the building. The appellate officer considered that application. At that time really there was no enforcement of the order even in respect of eviction and the appellate officer could grant stay. But after hearing respondent No. 3, the appellate officer observed in his order dated 30-9-75, that the maximum relief, which could be granted to respondent No. 3, i. e. , the appellant in the appeal before the appellate officer, was that the respondents be restrained only from demolishing the building. But after hearing respondent No. 3, the appellate officer observed in his order dated 30-9-75, that the maximum relief, which could be granted to respondent No. 3, i. e. , the appellant in the appeal before the appellate officer, was that the respondents be restrained only from demolishing the building. This order was made after due consideration of the earlier facts and circumstances that the respondent No. 3 did not avail of the stay order granted earlier by fulfilling the condition of deposit of rs. 5000 within the prescribed time. The appellate officer also observed that the earlier stay order did not become operative. It is thus clear that the appellate officer, on 30-9-75, did not grant any stay regarding eviction or recovery of damages etc. , though by that time the orders were not carried out, and simply granted the relief of stay regarding demolition of the building in question by observing that it was the maximum relief which could be given under the circumstances of the case. ( 5. ) WHEN the prayer of the respondent No. 3 was thus rejected, the petitioners were free to execute the order regarding eviction and recovery of damages, because there was no stay ever operative in this respect and the request for the same was not granted by the appellate officer even on 30th september, 1975. The petitioners, therefore, took possession of the premises in accordance with the provisions of rule 7 of the rules framed under the Public premises (Eviction of Unauthorised Occupants) Act, 1971 and placed their lock on 30-9-75. Respondent No. 3 thereafter, on 3-10-75, moved an application to the District Judge under section 151 of the Code of Civil Procedure requesting that the possession of the premises in question be directed to be restored. On this application, on 17-10-75, the learned appellate officer passed an order directing the petitioners to restore the possession of the shop by opening the lock on the condition that the applicant deposits a sum of Rs. 3000, which may be later on adjusted toward rent. This is the order impugned in this petition along with the order dated 30-9-75. ( 6. 3000, which may be later on adjusted toward rent. This is the order impugned in this petition along with the order dated 30-9-75. ( 6. ) SINCE the present petition is against the aforesaid orders dated 30-9-75 and 17-10-75 directing re-delivery of possession, we are not concerned with various other grounds relating to the merits of the appeal, which is yet to be disposed of by the appellate officer finally. The petitioner, Hindustan Steel limited have challenged the impugned order on the following grounds: (i) that because section 10 of the Act makes every order passed by the appellate officer final, the application moved by respondent No. 3 appellant for restoration of the appeal dismissed for want of prosecution on failure to appear on the date fixed, was not maintainable and the appellate officer bad no jurisdiction to entertain such an application for restoration in the absence of any specific provision for the same; (ii) that since no application for restoration could lie, the order passed by the appellate officer on 30-9-75 even granting partial stay regarding demolition of the building, was also without jurisdiction; and (iii) that even if it was held that the application for restoration could lie, the appellate officer had no jurisdiction to direct re-delivery of possession while exercising its powers under section 9 sub-section (3) of the Act, which empowers the appellate authority only to stay the enforcement of the order passed by the Estate Officer, in other words, when the appellate authority had already refused to stay and the earlier order of stay undisputedly did not become operative for non-compliance of the condition of payment of Rs. 5000 and the order of the Estate Officer was already carried out, so far as the eviction was concerned, no such order for re-delivery could be made, because there was nothing to stay in respect of eviction. ( 7. ) SO far as the first contention raised by the petitioner is concerned, it will suffice to observe that the finality contemplated under section 10 of the act does not relate to such orders, which terminated or disposed of the appeal for want of prosecution or failure to appear on the date fixed. Finality has been given only to such orders which decided the dispute raised in the appeal on merits after hearing both the parties. Finality has been given only to such orders which decided the dispute raised in the appeal on merits after hearing both the parties. It is true that the language of section 9 no where makes it obligatory on the part of the appellate officer to decide the appeal on merits. But this does not mean that the finality given under section 10 of the Act could be extended to such orders also, which do not decide the appeal on merits. It is also true that sub-section (4) of section 9 uses the words "shall dispose of the appeal expeditiously" and does not use the word "decide". In view of this language, it can be said that it is not obligatory on the appellate officer to decide the appeal on merits in every case and the appeal could also be disposed of on the ground of non-prosecution on other defaults, even when there is no specific provision, either in the Act or rules in respect of dismissing the appeal on such ground. Therefore, in the absence of any such language using the words "shall decide", it may be permissible for the appellate officer to dispose of the appeal on the ground of non-prosecution or default so long as there was no such prohibition for doing so. But whenever there is power to dismiss the appeal on such ground, even in the absence of specific provision, it cannot be urged that there is no such power to restore the appeal or set aside such dismissal, which is not on merits. If there is power to dismiss an appeal for non-prosecution or default with a tribunal even in the absence of specific provision, there is always implicit power to set aside the same or restore the appeal if sufficient cause is shown to authorities concerned. As already observed earlier, section 10 does not make such orders of dismissal of the appeal as final. In V. S. Nayak v. State of Gujrat (AIR 1967 s c 148.)the Supreme Court had considered the terms "to decide" and "to dispose of". It is true that their Lordships have observed that the word "decide" does not mean "to dispose of the appeal". In the relevant provision of the Act involved in that case, the language used, was "shall decide" and not "dispose of" as used in the enactment governing the present case. It is true that their Lordships have observed that the word "decide" does not mean "to dispose of the appeal". In the relevant provision of the Act involved in that case, the language used, was "shall decide" and not "dispose of" as used in the enactment governing the present case. In that case, it had also been observed that the application for restoration could always lie in case of dismissal of the appeal, because the identical provisions of section 20 of the act concerned in that case making the decision of the tribunal final and conclusive, could not cover orders of such dismissal. The aforesaid observations made by the Supreme Court fortify cur view that even if the appellate officer could and had dismissed the appeal on the ground of non-prosecution or default, he had every jurisdiction to consider the application for restoration of the same. The first contention of the petitioner is, therefore, liable to be rejected. Consequently, the second contention of the petitioner that the appellate authority had no jurisdiction to stay the operation of the order regarding demolition of the building, is also liable to be rejected. On 30-9-75, when the second application was moved by the respondent No 3, enforcement of the order of the Estate Officer had not been carried out and therefore, the appellate authority had full jurisdiction to grant stay in respect of demolition of the building. The order (Annexure-M) is, therefore, within jurisdiction and is absolutely just and proper. If the building itself is demolished, the very purpose of the appeal will be frustrated. ( 8. ) SO far as the third contention raised by the petitioner is concerned, it is apparent that admittedly the order of the Estate Officer, so far as taking of possession was concerned, had already been carried out and, on 3-10-75, when the third application was moved by respondent No. 3 or on 17-10-75, when the impugned order directing re-delivery of possession was made, there was nothing to stay in respect of eviction. The application itself was not maintainable and the appellate officer had no jurisdiction under any of the provisions of section 9 to direct re-delivery of possession. The application itself was not maintainable and the appellate officer had no jurisdiction under any of the provisions of section 9 to direct re-delivery of possession. It was contended, on behalf of respondent No. 3, before us that though there was nothing to stay and the relief could not be granted in exercise of powers under section 9 which are confined to grant of stay of the enforcement, such relief of restoration of possession could be granted under inherent powers of the Court under section 151 of Civil Procedure Code and such injunctions can be granted under the inherent powers even in the absence of specific provision in this respect. Normally, if an order has been already executed and possession taken, the relief in respect of stay of ejectment on interim basis becomes infructuous, and the party so dispossessed, can get back the possession only under the provisions of principles of restitution in accordance with the final order. This is the normal course. In this particular case, it is not understood as to when on 30th September, 1975, the appellate officer already considered the request for grant of complete stay and in the light of the previous facts and circumstances observed that the maximum relief, which could be granted, was only in respect of demolition of structure and refused to grant full stay, what was the justification for making an order of re-delivery of possession subsequently when the order had already been carried out. The respondent No. 3 had, in his return filed before us, further challenged the authority of the District Judge to impose the condition of payment even earlier and also while making the impugned order on 17-10-75. The respondent No. 3 deliberately did not comply with the condition of the first order by making a deposit within 10 days. He did not make any deposit for months thereafter in order to make any request for extension of time. When he made the second application, prayer for complete stay of the execution of the order regarding eviction was refused and stay of demolition of structure only was granted by observing that it was the maximum relief, which could be granted and when in pursuance of the order, possession was taken according to law, the appellate officer could not arbitrarily direct re-delivery of possession subsequently when he had already refused the prayer for stay of eviction earlier. All this clearly indicates that the approach of the learned appellate officer was absolutely arbitrary. In this context, it will be relevant to refer to a decision of the Division Bench of this Court in durg Transport Co. Pvt. Ltd. , Durg v. Regional Transport Authority, Raipur ( 1965 MPLJ 417 = a i r 1965 m p 142.)wherein this Court had observed that normally jurisdiction under Article 226 is not to be invoked against Interlocutory orders made by the tribunals in respect of stay orders or injunctions. But when the tribunals or Subordinate courts act in an arbitrary manner and want to create a new state of affair by granting a mandatory injunction and to change the circumstances, which had already come into existence, it becomes a proper case for interference even in exercise of jurisdiction under Article 226 of the Constitution of India. In the present case, when the order was already carried out, after the refusal of stay regarding eviction, there was no case for directing re-delivery of possession. The very approach of the matter by the appellate officer was arbitrary and therefore, it is a clear case, which calls for interference under Articles 226 and 227 of the Constitution of India as observed by this Court in the case referred to above (supra ). It is true that there may be cases where possession had been taken in contravention of stay order already operative or in the absence of knowledge about the stay order. In such cases, it may sometimes be proper to direct re-delivery of possession by granting a mandatory ad interim injunction. The present case was not of such circumstances. ( 9. ) IT was contended on behalf of the respondent No. 3 that when, on 17-10-1975, the appellate officer made an order directing the petitioner to re-deliver the possession on deposit of Rs. 3000 with them, the respondent No. 3 deposited the amount with the management of Hindustan Steel Limited and the Estate Officer issued a direction to carry out the order of the District Judge regarding redelivery of possession. Respondent No. 3 wanted to urge that because the petitioners have received the deposit and did not refuse to carry out the order, they were estopped from challenging the validity of the same. It is not possible to accept this contention. Respondent No. 3 wanted to urge that because the petitioners have received the deposit and did not refuse to carry out the order, they were estopped from challenging the validity of the same. It is not possible to accept this contention. When there was no stay order against the impugned direction of the tribunal with the management of the petitioner company, they were bound to obey the order. ( 10. ) THERE is no question of estoppel in the facts and circumstances of this case, particularly, when there is nothing to show that the petitioner-company derived any advantage flowing from the impugned order dated 17-10-1975 (Annexure-N/1) and thereafter wants to challenge the validity of the same. Perusal of the impugned order (Annexure-N/1) clearly indicates that the amount of Rs. 3000 was only to be kept as deposit. As the appellate officer did not direct that the amount be deposited in the Court itself, the same was kept as deposit with the Assistant Accounts Officer, Township of the hindustan Steel Limited. The company was not free to appropriate the amount in any manner as it was clearly stated in the order that the amount will be in the nature of deposit and will be liable to adjustment towards rent etc. afterwards. Thus the aforesaid deposit is not in the nature of payment of costs or any other deposit, which the party concerned could appropriate by withdrawing the same from the Court. This amount was only to be retained as deposit and its final appropriation depended upon the orders of the Court, which were to be passed later on. If the appellant will succeed in the appeal, the aforesaid amount kept in deposit will be liable to be returned to him and if the appellant would fail then thereafter the amount deposited, will be available for appropriation by the petitioner-company in accordance with the orders of the Court by adjustment towards rent etc. The cases where orders are made directing certain payments to the other party or certain deposits are directed to be made for being paid to the party concerned and the party withdraws the amount and appropriates the same there may be a ground to urge that the party having derived benefit from the order is estopped from challenging the validity of the same. Thus, for successfully asserting the plea of estoppel, it is necessary to show that the opposite party had really derived advantage or taken benefit of the order. In a case reported in Smt. Sarat Kumari Dasi v. Amullyadhan Kundu and others (AIR 1923 PC 13 ). such an objection was raised by saying that the appellant could not challenge the validity of the decree because he had adopted the amount deposited in pursuance of the decree and therefore at the same time he could not impeach the aforesaid judgment and decree in appeal and was estopped from doing so. In that case, the plea of estoppel based on certain appropriation of the amount in deposit was rejected by their Lordships an the ground that such a contention of estoppel was unsustainable. It was observed that the amount was in the nature of deposit and was liable to be adjusted in accordance with the success or failure of the appeal. In this case, when the appellate officer directed that the amount of Rs. 3000 be deposited and the appellant made that deposit with the Assistant Accounts Officer of the petitioner company, no case of estoppel arises unless it was shown that the petitioner company had actually decided to waive their right to challenge the validity of the order before the superior Court. The act of the Assistant accounts Officer in receiving the deposit, as directed by the Court, could not have the effect of concluding the right of the petitioner-company unless it was shown that conscious decision to abandon the right of challenging the impugned order was taken after full comprehension of all the facts. If the directions of the Court were obeyed and on such deposit the Estate Officer issued directions for compliance of the order of the District Judge, the same does not create an estoppel against the petitioner-company, if the Estate Officer, who functions as a tribunal subordinate to the appellate tribunal under the public Premises (Eviction of Unauthorised Occupants) Act had issued any order directing re-delivery of possession in compliance with the orders passed by the appellate officer in the absence of any stay from the superior Court, the same will not stop the petitioner-company from challenging the validity of the impugned order. If there would have been refusal on the part of the Estate officer or,the Company to obey the order, they could have been proceeded for contempt of Court. Even despite all this, it is evident from the return and the written arguments filed by respondent No. 3 that he had moved an application for contempt of Court against these officers and the company before the appellate officer on the ground of disobedience. Under such circumstances, if the amount has been kept in deposit with the Assistant Accounts Officer or directions were issued by the Estate Officer to company with the order of the appellate Court, it is not possible to hold that the petitioner-company had abandoned its right to challenge the validity of the impugned order. There is nothing to show that the petitioner-company had appropriated the amount of deposit or could appropriate it so as to hold that certain advantage or benefit had been derived from the order, which is being challenged. The order itself makes it clear that the amount was to be adjusted or appropriated only afterwards. This view also finds support from a decision reported in Federal India assurance Co. Ltd. v. Anandrao Pandurangrao Dixit (1944 NLJ 134=air 1944 Nag. 161), wherein the counsel of the limited company received the amount of costs mechanically and it was urged that since the counsel of the company had received the costs, the company could not challenge the validity of the order setting aside ex-parte decree. It was held that in such cases unless a conscious decision to abandon the right was taken, the mere fact of receiving the amount of costs mechanically by counsel will not create estoppel. In the present case also the receipt of the amount by the Assistant Accounts Officer and issuance of directions by the estate Officer functioning as a tribunal under the relevant Act do not create estoppel against the petitioner-company for the reasons stated above. ( 11. ) THE provisions of Public Premises (Eviction of Unauthorised Occupants) Act have been enacted for providing speedy mode of eviction and recovery of damages etc. Section 9 itself provides that the appellate officer shall dispose of the appeal as expeditiously as possible. It is really unfortunate that the application for restoration of appeal was lying pending for 10 months without making any final orders on the same. Section 9 itself provides that the appellate officer shall dispose of the appeal as expeditiously as possible. It is really unfortunate that the application for restoration of appeal was lying pending for 10 months without making any final orders on the same. The appellant had already stated that due to late running of the Bus from Bhopal to Bhilai, he could not reach the Court in time. The application for restoration was made immediately on the next day. We, therefore, direct that the appellate officer shall restore the appeal to file and decide the same on merits within one month. Till then, the status quo will remain. If the respondent No. 3 succeeds in the appeal, he will naturally get back the possession. Respondent No. 3 had been already out of possession for the last 3 months and no case is made out for again disturbing the status quo when the subject-matter is to be finally heard and decided within a month The order (Annexure-M) of the appellate officer restraining the petitioner from demolishing the structure is upheld to be valid and calls for no interference. So far as the order (Annexure-N/1) regarding re-delivery of possession is concerned, it is set aside with the aforesaid observation that the appeal shall be heard and decided on merits within one month. The respondent No. 3 is free to take back the amount of Rs. 3000 deposited by him in pursuance of the order (Annexure-N/1), which we have set aside. ( 12. ) THE petition is, therefore, partly allowed. There will be no order as to costs under the facts and circumstances of the case. K. K. DUBE J. ( 13. ) I have the benefit of going through the order rendered by my learned brother and I agree with the conclusion that the appellate officer under the Act was justified in restoring the appeal and further that a direction be given to the appellate officer to decide the matter within a month of the receipt of the record. I would, however, give my own reasons for arriving at the conclusions as regards the power of the appellate officer under the scheme of the Act. ( 14. ) THE facts have already been stated and I may straightway proceed to deal with the powers of the appellate officer to restore the appeal dismissed for non-prosecution earlier by him. I would, however, give my own reasons for arriving at the conclusions as regards the power of the appellate officer under the scheme of the Act. ( 14. ) THE facts have already been stated and I may straightway proceed to deal with the powers of the appellate officer to restore the appeal dismissed for non-prosecution earlier by him. Sections 4, 5, 6 and 7 of the Act deal with the eviction of unauthorised persons from public premises by the Estate Officer and matters incidental thereto. It is significant that under section 8, the Estate officer is to exercise the powers vested in a civil Court under the Civil Procedure Code only in respect of certain matters enumerated thereunder. The enquiry by the Estate Officer is essentially of a summary nature and no elaborate procedure has been prescribed. The Act then provides for appeal to be preferred against the orders of the Estate Officer passed under sections 5 and 7. Sub-section (4) of section 9 enjoins on the appellate officer to dispose of the appeal as expeditiously as possible. Orders passed by the Estate Officer and, if challenged in appeal, by the appellate officer are final. By virtue of section 10, the orders could not be called in question in any civil Court. Under sub-section (f) of section 18 (2), the Central Government is authorised to frame rules regulating the procedure to be followed in appeals The above provisions would clearly indicate that Civil Procedure Code in terms is not made applicable to provide the procedure in appeal. Section 18 clearly envisages such rules to be framed by the Central Government and section 8, by providing that the civil Procedure Code will be applicable only in certain matters by implication, excluded its application generally. There is, therefore, no substance in the argument advanced that the procedural part is to be governed by the Code of civil Procedure. ( 15. ) RULE 9 framed in exercise of powers conferred under section 18 touching the procedure in appeals reads as under : - " (1) An appeal preferred under section 9 of the Act shall be in writing, shall set forth concisely the grounds of objection to the order appealed against and shall be accompanied by a copy of such order. ) RULE 9 framed in exercise of powers conferred under section 18 touching the procedure in appeals reads as under : - " (1) An appeal preferred under section 9 of the Act shall be in writing, shall set forth concisely the grounds of objection to the order appealed against and shall be accompanied by a copy of such order. (2) On receipt of the appeal and after calling for and perusing the record of the proceedings before the Estate Officer, the appellate officer shall appoint a time and place for the hearing of the appeal and shall give notice thereof to the Estate Officer against whose orders the appeal is preferred, to the appellant and to the head of the department or authority in administrative control of the premises. " It is manifest from the above provision that an appeal is not to be dismissed in limine. The appellate officer was bound to call for the record, fix a date of hearing and give notice to the Estate Officer and to the department concerned as also to the appellant. After this was done, it only stands to reason that if the appellant did not appear on the date of hearing, he was to adjudicate upon the matter and decide the appeal on merits. Since the rule contemplated that the appellate officer was not to dismiss the appeal summarily after merely perusing the order, there would be stronger reasons to hold that it was not intended to permit dismissal of the appeal in default of appearance, particularly when such a procedure was not provided. If the appellant did not appear on the date of hearing the appellate officer could proceed to decide the appeal in his absence and that is the sort of disposal by adjudicating upon it that is contemplated under the scheme. Sub-section (4) of section 9 does enjoin on the appellate officer to dispose of the appeal expeditiously. The disposal contemplated is disposal after adjudication. It follows then that if the appellate officer dismissed the appeal for default of appearance the order passed was erroneous and not in exercise of jurisdiction conferred on him. Such an order was nonest and the appellate officer could undoubtedly restore it to rectify his own mistake. There is, therefore, no difficulty in holding that the appellate officer was justified in restoring the order dismissed in default of appearance. ( 16. Such an order was nonest and the appellate officer could undoubtedly restore it to rectify his own mistake. There is, therefore, no difficulty in holding that the appellate officer was justified in restoring the order dismissed in default of appearance. ( 16. ) COMING to the second aspect of the case : whether the appellate officer was justified in restoring possession to the respondent No. 3, suffice it to say that there is no impediment to the powers of the appellate officer to do justice in a case. It would, however, be a different matter if, on the facts and circumstances of a given case, he had acted improperly. Section 9 (3) of the Act reads as under: "where an appeal is preferred from an order of the Estate Officer,the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit. " The appellate officer had full powers to stay the demolition of the house which admittedly had not taken place then. It is well settled that where an Act confers jurisdiction it impliedly also grants the power of doing such acts or employ such means as are essentially necessary to its execution. The power to grant stay of the execution of the order essentially flows from the jurisdiction to hear the appeal. The appeal of the respondent No. 3 in the instant case is that he was not in an unauthorised occupation of the premises. He could, therefore, be granted such ad interim reliefs as did not make his right of appeal infructuous or impinge upon such right. As already pointed out in the order of my learned brother, the appellate officer had considered that the stay should be effective only as regards the demolition of the building and having come to that conclusion, it was not open to him to arive at a different conclusion without any change of circumstances or without finding how the earlier order was erroneous. I would agree with my learned brother that such an order could not be arbitrarily changed at the whim of the appellate officer. ( 17. ) IN the conclusion, I agree that there is no reason to interfere with the order of the appellate officer in this extraordinary jurisdiction under Article 226 of the Constitution except quashing that part of the order where the respondent no. ( 17. ) IN the conclusion, I agree that there is no reason to interfere with the order of the appellate officer in this extraordinary jurisdiction under Article 226 of the Constitution except quashing that part of the order where the respondent no. 3 was directed to take possession of the premises. The record shall now be sent to the appellate officer with the direction that it be expeditiously decided within one month. There shall, however, be no order as to costs. The amount of security deposit shall be refunded to the petitioner. ( 18. ) IN view of the opinion expressed by the Bench, the petition is allowed in part in so far as the directions to take possession of the premises by respondent No. 3 are concerned. We quash the ad interim directions of the appellate officer directing respondent No. 3 to take possession of the premises pending disposal of the appeal. We maintain the order of the appellate officer restraining the petitioner from demolishing the impugned premises. We further direct that the appellate officer (District Judge, Durg) shall dispose of the appeal of the respondent No. 3 on merits within one month of the date of receipt of the record. Petition partly allowed.