A party must act promptly under Article 226(3) to vacate an interim order; inaction may imply acceptance.

1. In this application, the respondent No. 4/applicant has prayed for vacating the interim order dated 6-5-2003 passed in the writ application, W. P. (S) No. 2135 of 2003 from perusal of the said order dated 6-5-2003, it appears that the notice was issued to the respondent No. 4 and the counsel for the State was given five weeks' time to obtain instructions and file counter affidavit. The case was fixed for admission for 11th of July, 2003 and the following interim order was passed:
"Until further order the respondent No. 4 shall not function, but the petitioner shall pay him the subsistence allowance. The petitioner may also proceed against the Respondent No.4 departmentally and may pass appropriate order in accordance with law, after notice to him subject to the decision of the case. It will be open to the concerned Respondents to ask for appropriate modification/clarification of this interim order."

2. It appears from the record that the respondent No. 4 i.e. the applicant appeared on 10-7-2003 and filed a detailed counter affidavit. The respondent No. 4 applicant, however, did not chose to object the interim order at that time and he did not file any application for vacating the interim order. The respondent No. 4/applicant, thereafter, filed supplementary counter affidavit on 9-9-2003, but even on that day, no application was filed for vacating the interim order. Thereafter, by an order dated 4-11-2003, this writ application was admitted for hearing. The respondent No. 4 at that time too did not object to the interim order and did not file any application for vacating the same. After more than a year from the date of admission, the respondent No. 4-applicant has filed the instant application dated 4-1-2005 praying therein for vacating the interim order dated 6-5-2003.

3. When this interlocutory application is taken up for hearing, Mr. K. K. Jha 'Kamal', learned counsel appearing on behalf of the respondent No. 4-applicant submitted that he does not want to go into the merits of his application as the same having not been disposed of within the period prescribed under Article 226(3) of the Constitution, the interim order automatically stood vacated under the said provision.

4. Mr. J. K. Pasari, learned counsel appearing on behalf of the petitioner refuted the said stand of the respondent No. 4 and submitted that there is absolutely no merit in the application filed by the respondent No. 4-applicant, but since the respondent No 4-applicant, himself has not pressed the petition on merit, the petitioner does not want to address this Court on the same. However, learned counsel submitted that the claim of automatic vacation of the interim order passed in the writ application is wholly misconceived, frivolous and baseless. Learned counsel submitted that the respondent No. 4 has appeared as far back as in the year 2003 and filed his counter affidavit and thereafter he also filed a supplementary counter affidavit, but he did not prefer to file any application for vacating the interim order. According to the learned counsel, since the petitioner did not file the application for vacating the interim order when he first time appeared in the year 2003, there is no consequential effect of Article 226(3) on any petition filed thereafter. Learned counsel submitted that the nature of the interim order passed in this case does not come within the ambit of Article 226(3) as the order is (i) to pay subsistence allowance to the respondent No. 4; and (ii) to proceed against the respondent No. 4 departmentally and to pass appropriate order in accordance with law after notice to