In Special Leave to Appeal(C) No.19038/2022-SC- Unless Appeal is listed and there is interim order, mere filing of appeal would not operate as stay: Supreme Court
Justices A.S.Bopanna & Hima Kohli [24-01-2023]

Read Order: SANJIV KUMAR SINGH Vs. THE STATE OF BIHAR & ORS 

LE Correspondent

New Delhi, January 30, 2023: While terming the act of the District Magistrate in rejecting the NOC as unjustified, the Supreme Court has referred to Order 41 Rule 5 of CPC and opined that unless the appeal is listed and there is an interim order, the mere filing of the appeal would not operate as a stay.

In this matter, the petitioner was before the High Court seeking a direction to the second respondent-District Magistrate, East-Champaran, Motihari, Bihar to grant ‘No Objection Certificate’ (NOC) for starting MS/HSD retail outlet dealership over land situated in the District of East Champaran in  Bihar.

The District Magistrate had rejected the request of the petitioner for issuance of NOC. When the said order was  assailed before the Patna High Court, the High Court also dismissed the petition only on the ground that the respondents herein had contended that as against the decree passed in favour of the petitioner in respect of the said judgment, an appeal had been filed before the High Court and the same was yet to come up for hearing.

The petitioner had assailed the order of the High Court.

It was also pointed out that the appeal was filed on March 11, 2022 which was registered on March 15, 2022 and the scrutiny for posting the appeal before the Court was yet to be completed.

“Though, such contention is put forth by the respondents, keeping in view the provisions as contained in Order 41 Rule 5 of CPC, unless the appeal is listed and there is an interim order, the mere filing of the appeal would not operate as a stay”, the Division Bench of Justice A.S.Bopanna and Justice Hima Kohli said.

If that be so, the judgment  would enure to the benefit of the petitioner as on today and the rejection of the NOC only on the ground that the appeal had been filed, would not be justified, the Bench held.

Thus, the Bench observed that the High Court was not justified in rejecting the petition. 

Setting aside the Order passed by the Patna High Court, the Bench directed the  District Magistrate to take note of the decree and issue the NOC within a period of two weeks which would be subject to the result of the appeal pending before the High Court.