- (1.) R. H. Zaidi, J. Present petition has been filed under Article 226 of the Con stitution of India challenging the validity of the order dated 10-1-96 passed by respondent No. 1, whereby he has rejected the application of the petitioner for interim relief,
(2.) I have heard learned Counsel for petitioner and learned Standing Counsel. It appears that vide order dated 29-12-95, the licensing authority in exercise of his power under Section 17 of the Arms Act, hereinafter referred to as the Act, cancelled the licence of the petitioner. Aggrieved, petitioner preferred an appeal before the Commissioner and also filed an application for interim stay. The Com missioner acting as Appellate Authority under the said Act, after hearing the learned Counsel for parties came to the conclusion that the petitioner has failed to make out prima facie case for grant of interim stay and dismissed the application. It has been urged by the learned Counsel for petitioner that once the appeal was filed, it was obligatory upon the Commissioner to grant interim stay. He also placed reliance on the decision of Krishna Nand alias Krishna v. Commissioner, Jhansi Div. Jhansi, Civil Misc. Writ Petition No. Nil of 1992, decided on 7th May, 1992 of this Court in support of his argument. In the said decision of this Court it was observed that in view of the fact that the petitioner's appeal is still pending before the Commissioner, his application for interim stay ought not have been rejected by the Commissioner pending disposal of the appeal. No reason in support of said observation has been recorded. Sub-section (6) of Section 18 of the Act provides as under: "the order appealed shall, unless the Appellate Authority conditionally or uncondi tionally directs otherwise, be enforced pending disposal of the appeal against such order. " From aforesaid provision it is apparent that the Appellate Authority has got the jurisdiction to stay or not to stay the operation of the order appealed against, conditionally or unconditionally.
(3.) IT is well settled in law that mere admission of appeal cannot amount to stay the operation of the order or proceeding. The interim order has to be granted by the court after examining the facts of each case, if petitioner makes out a prima facie case for grant of interim stay. There is no such law that whenever the appeal is admitted the interim stay order should also be granted by the Appellate Authority. Further the present petition has been filed against the dismissal of applica tion for interim order. The appeal is pending disposal before the Commissioner. I, therefore, refuse to interfere under Article 226 of the Constitution of India with the order passed by the Commissioner acting as Appellate Authority.;