KATHMANDU, Feb 8: The interlocutory stay order issued by the Supreme Court on a writ petition related to businessman Ajaya Sumargi seems to be the court’s final order and this has violated the norms developed by the Supreme Court in writ jurisdiction.
In a writ petition filed by Achyut Prasad Kharel vs Dhruba Bahadur Pradhan, the apex court had set a norm that it would not issue interim order which was expected in the final decision.
“Final order cannot be issued in the name of an interim order,” senior advocate Shambhu Thapa who is also a former president of Nepal Bar Association, told Republica. “Interim order can be issued only for maintaining the status quo.”
The apex court on Tuesday issued the interim order in the name of the Nepal Rastra Bank (NRB) not to freeze the funds of Nepal Satellite Telecom Pvt. Ltd owned by Sumargi and had summoned the central bank and Nepal Investment Bank to participate in a hearing on February 14. NRB had frozen the suspicious funds which are being investigated by the Central Investigation Bureau of Nepal Police and the Department of Money Laundering.
The apex court had issued the order stating that NRB’s freezing of the funds was groundless. The central bank had ordered freezing of the funds five years ago after the sources of the funds were questioned.
Rule 49(1) of the Supreme Court Rules, 2017 has set some criteria on whether or not to issue interim order in any petition. If non-issuance of an interim order causes irreparable loss to the petitioner or amounts to violation of any fundamental right or legal provision, the apex court may issue interim order as demanded by the petitioner.
Another senior advocate and constitutional law expert Chandra Kanta Gyawali also said that the final order cannot be issued in the name of the interim order while settling any dispute. “Summoning defendants by giving such an order has killed the significance of the petition” Gyawali said adding, “The order issued in Sumargi’s case eliminate the significance of the petition.”