The appellate authority has the power to grant a stay of eviction under Section 9(3) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, but it must exercise its discretion judicially.

( 1 ) (ORAL) (Rule D. B. ).--The challenge in this writ petition is to an order dated 7th March 1990, the effect of which is that the respondent No. I has been permitted to stay in the premises which had originally been allotted to him by the Government upto 20th April 1990.

( 2 ) BRIEFLY stated the facts are that the respondent No. 1 was a member of Lok Sabha and he had been allotted 1 Rajaji Marg, New Delhi. He was also a member of the Council of Ministers in 1982 and, according to respondent No. 1, he was allotted category VIII house because of his long standing in the parliament and also in view of the fact that he had been appointed a member of Council of Ministers.

( 3 ) THE 8th Lok Sabha, of which respondent No. 1 was a member, was dissolved on 27th November 1989. It is a common ground that under the Rules of allotment, the respondent No. 1 was entitled, as of right, to retain the premises in question for a period of one month thereafter. This period expired on 27th December 1989.

( 4 ) IT appears that respondent No. 1did not vacate the premises. A notice appears to has been sent to him by the Estate Officer in response to which the respondent No. 1 wrote a letter dated 9th February 1990 to the Deputy Director, Directorate of Estates. It was mentioned therein that respondent No. 1 had been discharged from a hospital in Bombay where he was being treated for a physical ailment and it was mentioned that respondent No. 1 was to be under continued medical treatment at home for at least 3 to 5 weeks more. A request was made to the effect that he should be allowed to retain the said accommodation for the time being till he was fully recovered from the ailment.

( 5 ) THE Estate Officer passed an order dated 14th February 1990. A representative of respondent No. I appeared before the Estate Officer and a reply was filed. After hearing the parties and seeing the reply, the Estate Officer concluded that respondent No. 1 had become unauthorised occupant of the accommodation in question and he was directed to vacate the promises within 15 days of the publication of the said order.

( 6 ) THE respondent No. 1 then filed an appeal under Section 9 (1) of the Public Premises (Eviction of Unauthorised Occupants) Act 1971, hereinafter referred to as the said Act. In (his appeal the facts which were enumerated in the petitioner s letter dated 9th February, 1990, were reiterated and it was stated that respondent No. 1 was entitled for extension of Time on medical grounds. It was also mentioned that he had who studying in school and that he had no two children are in Delhi. Lastly it was submitted that other accominodation. . the impugned order had been passed without application of mind to the contents of letter dated 9th February 1990.

( 7 ) THE appeal came up for hearing before the Additional District Judge on 23rd February 1990 Notice to show cause was issued to the petitioner herein and in the meantime interim orders were passed staying the eviction of the respondent No. 1 from the dispute premises. On 7th March 1990, a representative of the department did appear before the Additional District judge. A. statement was made by the counsel for respondent no. 1 to the effect that the appeal may be dismissed as withdrawn but an undertaking was given by the learned counsel to the effect that respondent No. 1 would vacate the premises in dispute by 20th April 1990. Thereupon the Additional District Judge passed the following order :-

"in view of the statement of the counsel for appellant, the appeal is dismissed as withdrawn. However, the appellant is given time to vacate the premises in dispute by 20-4-90. If he fails to do so, he will he responsible for all consequences of going back on his undertaking and will be liable to be thrown out by fores. A copy of order be sent to the respdt. Appeal file be consigned. "

( 8 ) IN this writ petition under Article 226 of the Constitution of India the challenge is to the passing of the af