S. R. RAJASEKHARA MURTHY, J. ( 1 ) 1. The learned Govt, Pleader was directed to take notice re. rule and stay of recovery by the Tahsildar pursuant to annexure-A was stayed for a period of four weeks. The writ petitions are disposed of after issuing rule and after hearing both sides. ( 2 ) THE grievance of the petitioner in these writ petitions is that no order is made so far on the stay applications filed along with the two appeals on 11-10-88 against the two ex-parte assessment orders for the years 81-82 and 82-83. In the meanwhile, the assessing authority has issued a certificate to the Tahsildar for recoveries, to recover the entire tax in dispute, pursuant to which the Tahsildar has now issued notice of recovery under rule 112 of the Land Revenue Rules. ( 3 ) IT is the case of the petitioner that immediately after the notice of assessment was served on him, appeals were filed for both the years within time before the Deputy Commissioner of Commercial taxes (Appeals), Bangalore (2nd respondent) accompanied by applications for stay. The tax disputed in the appeals filed by the petitioner before the second respondent for the two years in question is Rs. 76,843-43 Ps. which is the subject matter before the appellate authority. The petitioner-assessee had to approach this Court in this writ petition on service of notice issued by the third respondent- tahsildar demanding recovery of the entire tax in dispute and was threatened with coercive and compulsory proceedings by the Tahsildar. ( 4 ) LARGE number of assessees under the Act are driven to file writ petitions in this Court in a number of cases wherein similar cases coercive process to recover the disputed taxes through the Tahsildar is resorted to by the Department. ( 5 ) IT is needless to point out this procedure of taking coercive step to recover the disputed tax without making any order of the stay applications filed before the appellate authority, deprives the assessees under the Act the right of aopeal against the assessments and the right to obtain an order of stay of the disputed tax on such terms as the appellate authority may deem fit to impose. The provisions of the Act providing for filing appeals against the order of assessment confers a right on the dealer to question any order affecting him passed under the provisions of the Act. Even though sub- sec. (3) of Section 20 makes it mandatory to deposit the disputed tax, the appellate authority is conferred with the discretion to give such directions as it thinks fit in regard to the payment of tax. This provision is not only meant to confer a right on the assessee to question the correctness of the assessments but also confers a statutory duty on the appellate authority to make such order as it may think fit as regards the payment of tax, namely, the tax disputed in the appeal. ( 6 ) IN all the cases which have come up before me by way of writ petitions in which recovery proceedings are challenged, in most of the cases the Deputy Commissioners have not passed any order on the stay applications and simultaneously steps to recover the disputed tax through the Tahsildar, are taken. The inaction on the part of the Deputy Commissioner in all these cases has to be construed as failure to perform the statutory duty which is coupled with discretion and deferring making such orders on the stay applications has resulted in frustrating or defeating the very right of appeal. ( 7 ) IN this context, the observations of shah, J : in L Hirday Narain v I. T 0. A Ward, Bareitly (76 ITR 26) (S. C.), are relevant :"if a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exetcise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right public or private-of a citizen. "his Lordship further quoted from julius v Bishop of Oxford (1880) 5 App. Cas. Even if the words used in the statute are prima facie enabling the courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right public or private-of a citizen. "his Lordship further quoted from julius v Bishop of Oxford (1880) 5 App. Cas. 214 (HL), the words of Cairns L. C. , thus :"the word 'it shall be lawful' conferred a faculty or power, and they did not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so". ( 8 ) LORD Blackburn observed in the same judgment as follows :"the enabling words give a power which prima facie might be exercised or not, but if the object for which the power is conferred is for the purpose of effectuating a right there may be a duty cast upon the donee of the power to exercise it for the benefit of those who have that right when required on their behalf". ( 9 ) THE observations of Shah, J : and the Law-Lords in Julius v Bishop of oxford, are very aposite to the facts of these cases where the Deputy Commissioner of Commercial Taxes is vested with the discretion to exercise powers as an appellate-authority in the matter of stay of demand which is in dispute in the appeal before him, on such conditions as he may deem fit to impose. This Court is flooded with large number of writ petitions wherein similar recovery proceedings taken by the Tahsildar for recovery of the disputed tax even when the appeals are pending and stay applications are not disposed of. The dealers are forced to approach this Court in these circumstances and this Court has to exercise its extraordinary jurisdiction to grant appropriate relief. The dealers are forced to approach this Court in these circumstances and this Court has to exercise its extraordinary jurisdiction to grant appropriate relief. ( 10 ) ON the facts of the present case, appeals were filed against the assessment for the two years on 11 -10-88 along with applications for stay of recovery of the disputed tax. The averment made in the writ petitions that no order is made till this day by the Deputy Commissioner on the applications for stay is not disputed. And, on the othor hand, certificate was issued to the Tahsildar to recover the entire tax in dispute pursuant to which notice, as psr Annexure-A, threatening to take coersive process to recover the tax, was issued to the petitioner. It is in these circumstances that the petitioner has approached This Court under Article 226 and the writ petitions were filed on 17-3-89 challenging the action taken by the department to recover the disputed tax and the recovery proceedings taken by the tahsildar. ( 11 ) THIS very case is a classic example to demonstrate how an assessee who appears to be having a good case on merits is facing recovery proceedings even though the assessment is challenged before the appellate authority The appellant's case before the Deputy Commissioner is that all the sales of charcoal was for domestic use only and hence was entitled to the total exemption from the levy of tax under Entry 29a of the V Schedule of the K. S. T. Act. No doubt, the assessee himself is to be blamed for the ex-parte order of assessment made against him, but the reasons put-forward for failure to produce the books-of accounts in support of his claim for exemption is a matter on which the deputy Commissioner has to adjudicate in the appeal. ( 12 ) IT is the obligatory duty of the Deputy commissioner to appreciate the facts of the case in order to find out whether the appellant has a prima-facie case on merits, and whether it warrants exercise of his discretion either to stay the entire demand or to put the appellant on terms. The inaction or failure on the part of the deputy Commissioner of Commercial taxes in not making any order on the stay application is the sole reason for the petitioner to approach this Court to have the recovery proceedings stayed. The inaction or failure on the part of the deputy Commissioner of Commercial taxes in not making any order on the stay application is the sole reason for the petitioner to approach this Court to have the recovery proceedings stayed. Normally, these are not cases for issue of any mandamus to the appellate- authority under the Act to discharge his obligatory functions under Section 20 in the matter of exercise of discretion as to the payment of disputed tax during the pendency of the appeal. Since the department has sought to recover the entire tax in dispute in the absence of any order being made by the appellate authority on the stay applications and coercive process is being taken to recover the disputed tax, this Court has no alternative but to quash the recoveryproceedings. For the reasons stated above, the recovery proceedings taken by the third- respondent-Tahsildar, as per Annexure-A, is liable to be set aside and it is ordered accordingly. order issue of mandamus to the second-respondent-Deputy Commissioner of Commercial Taxes to consider and dispose of the stay applications of the petitioner within six-weeks from the date of receipt of this order, and any recover that may have to be taken thereafter should be in confirmity with the said order. The above direction shall hold good to all similar cases where the appellate authorities have kept the stay applications pending without making any orders on on them so far. Writ petition allowed. --- *** --- .