* Author
[2024] 5 S.C.R. 155 : 2024 INSC 353
Ajay Ishwar Ghute & Ors.
v.
Meher K. Patel & Ors.
(Civil Appeal No. 4786 of 2024)
30 April 2024
[Abhay S. Oka* and Ujjal Bhuyan, JJ.]
Issue for Consideration
This Hon’ble Court was considering a challenge to an Order of
the High Court disposing of a writ petition in terms of a “Minutes
of Order” filed by the Advocates, and signed by the parties to the
petition, without impleading the affected parties.
Headnotes
Practice and Procedure – Considerations by the Court while
passing an order in terms of “Minutes of Order” – Order
passed by the Court based on the “Minutes of Order” is not
a consent order, it is an order in invitum – Court must record
brief reasons indicating the application of mind.
Held: An Order passed in terms of “Minutes of Order” is an order
in invitum – The Court must first examine whether it will be lawful
to pass an order in terms of the “Minutes of Order” – The Court
must consider whether all necessary parties have been impleaded
to the proceedings in which the “Minutes of Order” have been filed
– The Court must consider whether third parties will be affected by
the order sought in terms of the “Minutes of Order” – If the Court is
of the view that necessary parties were not impleaded, the Court
ought to allow the Petitioner to implead them – On the failure of the
Petitioner to implead them, the Court must decline to pass an order
of disposing of the Petition in terms of the “Minutes of Order” – The
reason is that an order of the Court passed without hearing the
necessary parties would be illegal – Only if the Court is satisfied that
an order in terms of the “Minutes of the Order” would be legal, the
Court can pass an order in terms of the “Minutes of Order” – While
passing an order in terms of the “Minutes of Order”, the Court must
record brief reasons indicating the application of mind. [Para 17]
Practice and Procedure – Practice of advocates drafting
“Minutes of Order” was evolved to save time – Advocates
156 [2024] 5 S.C.R.
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who sign and tender the “Minutes of Order” have a greater
responsibility.
Held: Reliance placed on the Judgment of this Hon’ble Court
in Speed Ways Picture Pvt. Ltd. and Anr. v. Union of India and
Anr.[1996] Supp. 7 SCR 636 : (1996) 6 SCC 705 : 1996 INSC
1202 where this Hon’ble Court considered the practice of passing
orders in terms of “Minutes of Order” – For the convenience of the
Court and as a matter of courtesy, the advocates draft “Minutes of
Order” containing what could be incorporated by the Court in its
order – Perhaps this practice was evolved to save the time of the
Court – The advocates who sign and tender the “Minutes of Order”
have greater responsibility – Before they sign the “Minutes of the
order”, the advocates have an important duty to perform as officers
of the Court to consider whether the order they were proposing
will be lawful – They cannot mechanically sign the same – After
all, they are the officers of the Court first and the mouthpieces of
their respective clients after that. [Para 18]
Civil Law – Order XXIII of Code of Civil Procedure, 1908 – Filing
of Consent Terms – Court has jurisdiction to decline to pass a
consent order, if the same is tainted with illegality – Consent
Terms not binding on persons who were not parties to the
Consent Terms.
Held: Even if parties file consent terms, while accepting the
consent terms in terms of Rule 3 of Order XXIII of the Code of Civil
Procedure, 1908, the Court is duty-bound to look into the legality
of the compromise – The Court has the jurisdiction to decline to
pass a consent order if the same is tainted with illegality – An
order passed by the Court in terms of consent terms is a consent
order, which will not bind the persons who were not parties to
the consent terms, unless they were claiming through any of the
parties to the consent terms. [Para 19]
Practice and Procedure – Summary of conclusions regarding
the concept of “Minutes of Order”.
Held: This Hon’ble Court summarized its findings on the concept
of “Minutes of Order” as – (a) The practice of filing “Minutes
of Order” prevails in the Bombay High Court – As a courtesy
to the Court, the advocates appearing for the parties to the
proceedings tender “Minutes of Order” containing what could be
[2024] 5 S.C.R. 157
Ajay Ishwar Ghute & Ors. v. Meher K. Patel & Ors.
recorded by the Court in its order – The object is to assist the
Court; (b) An order passed in terms of the “Minutes of Order”
tendered on record by the advocates representing the parties
to the proceedings is not a consent order – It is an order in
invitum for all purposes; (c) Before tendering the “Minutes of
Order” to the Court, the advocates must consider whether an
order, if passed by the Court in terms of the “Minutes of Order,”
would be lawful – After “Minutes of Order” is tendered before
the Court, it is the duty of the Court to decide whether an order
passed in terms of the “Minutes of Order” would be lawful – The
Court must apply its mind whether the parties who are likely
to be affected by an order in terms of the “Minutes of Order”
have been impleaded to the proceedings; (d) If the Court is of
the view that an order made in terms of the “Minutes of Order”
tendered by the advocates will not be lawful, the Court should
decline to pass an order in terms of the “Minutes of Order”; and
(e) If the Court finds that all the parties likely to be affected by
an order in terms of the “Minutes of Order” are not parties to
the proceedings, the Court will be well advised to defer passing
of the order till all the necessary parties are impleaded to the
proceedings. [Para 20]
Case Law Cited
Speed Ways Picture Pvt. Ltd. and Anr. v. Union of
India and Anr. [1996] Supp. 7 SCR 636 : (1996) 6
SCC 705 : 1996 INSC 1202 – referred to.
List of Acts
Code of Civil Procedure, 1908; Constitution of India.
List of Keywords
Minutes of Order, Filing of Consent Terms, Responsibility of
Advocates signing Minutes of Order.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4786 of 2024
From the Judgment and Order dated 20.07.2023 of the High Court
of Judicature at Bombay in RP No.7 of 2023 and WP No.2584 of
2022
158 [2024] 5 S.C.R.
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Appearances for Parties
Rajesh Vishnu Adrekar, Ms. Usha Nandini V., Advs. for the Appellants.
Karl Tamboli, Ms. Tahira Karanjawala, Arjun Sharma, Purazar Fouzdar,
Ms. Varuna Juneja, Jai Vardhan Malaviya for M/s. Karanjawala &
Co., Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat
Bagla, Sourav Singh, Aditya Krishna, Aadarsh Dubey, Mrs. Preet S.
Phanse, Prashant R. Dahat, Puneet Yadav, Sourabh Gupta, Ujjwal
Choudhary, T. R. B. Sivakumar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Abhay S. Oka, J.
1. The main issue that arises in this case is whether the High Court was
justified in passing a drastic order in the exercise of writ jurisdiction
under Article 226 of the Constitution of India permitting the 1st and
2nd respondents (writ petitioners) to construct a compound wall
under police protection. The order passed by a Division Bench of the
High Court on 16th March 2022 is in terms of the “Minutes of Order”
tendered to the Court by the advocates representing the parties duly
signed by them. The practice of passing orders based on “Minutes of
Order” submitted by the advocates representing the parties prevails
perhaps only in the High Court of Judicature at Bombay (for short,
‘the Bombay High Court’). The present appellants applied for a
review of the order dated 16th March 2022, which has been rejected
by the impugned order dated 20th July 2023. Even the order dated
16th March 2022 is under challenge in this appeal.
FACTUAL ASPECTS
2. A few factual aspects will have to be noted. Arbitration Petitions were
filed under Section 9 of the Arbitration and Conciliation Act, 1996
(for short, ‘Arbitration Act’) before a Single Judge of the Bombay
High Court. One petition was filed by the 1st respondent against one
Urvaksh Naval Hoyvoy and others. Taz Naval Nariman and another
filed the other petition. Consent terms were filed in the Arbitration
Petition preferred by the 1st respondent. It appears that during the
pendency of the proceeding of the Arbitration Petition, Urvaksh Naval
Hoyvoy was arrested by police based on a First Information Report. In
terms of the consent terms dated 28th April 2018, the learned Single
[2024] 5 S.C.R. 159
Ajay Ishwar Ghute & Ors. v. Meher K. Patel & Ors.
Judge passed an order dated 30th April 2018. Further, order dated
10th May 2018 passed by the learned Single Judge records that
the process of handing over possession of the suit property by the
respondents to the 1st respondent has commenced. The dispute in
the Arbitration Petitions related to the lands of Parsi Dairy Farm.
3. The 7th respondent in Arbitration Petition No. 451 of 2018 filed an
interim application in the disposed of Arbitration Petitions more than
two years after filing consent terms. It records that the High Court
had directed the police to give police protection to the parties for
completing the process of handing over possession. A compound
wall was to be constructed in terms of the consent terms. The
occasion for filing the application arose as, according to the 7th
respondent in the Arbitration Petition, local persons obstructed
the work of the construction of the compound wall. The learned
Single Judge of the Bombay High Court disposed of the interim
application by his order dated 12th February 2021. The relevant
portion of the said order reads thus:
“2…………………………………………………...................
In the application it is stated that in order to safeguard
the suit property, the parties tried to build a wall on
the suit property and which is in their possession. On
commencement of the work of building the wall, the
parties have faced several difficulties and which
are enumerated in paragraphs 5(a) to 5(d) of the
application. It is stated that local persons have time
and again obstructed building of the wall and despite
several requests made to the Talasari Police Station,
nothing has been done. It is stated that a wall is being
built on the suit property in order to secure the same and
though assistance of the police was sought on several
occasions, the local villagers time and again interfered
with the building of the said wall and the police have
rendered no assistance in that regard.
……………………………………………………...................
3.…………………………………………………....................
4. In these circumstances, it is directed that the police/
Tahasildar/ Collector/ Gram Panchayat office and all
160 [2024] 5 S.C.R.
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other concerned Government Authorities shall offer
all assistance to the applicant and the other interested
respondents (respondent Nos.2 to 8) to construct a
wall to safeguard the suit property. It is further directed
that the local Police Station shall ensure that these
directions are strictly complied with and no person is
allowed to interfere with the construction of the wall
on the suit property.”
(emphasis added)
4. It must be noted here that the persons who had admittedly obstructed
the construction of the wall were not parties to the proceedings of
either the Arbitration Petition or the interim application.
5. It appears that an application was filed to the Deputy Superintendent
of Land Records at Talasari by the 1st respondent and five others for
measuring the lands subject matter of the Arbitration Petition situated
at village-Varvada, taluka-Talasari, district-Palghar. The Deputy
Superintendent of Land Records, in his letter dated 21st November
2021, informed the 1st respondent that several persons named in
the letter had objected to carrying out a survey. The letter records
that as objections in writing have been submitted, conducting the
hearing and holding an enquiry was necessary. We may note that
in the letter, the names of some of the appellants are mentioned in
the list of persons who objected to the survey.
6. A very curious step was taken by the 1st and 2nd respondents thereafter.
They filed a Writ Petition under Article 226 of the Constitution of India,
being Writ Petition No. 2584 of 2022. The grievance in the said Writ
Petition was regarding non-compliance with the orders in the aforesaid
Arbitration Petition by the government authorities regarding carrying
out the survey and construction of the compound wall. The persons
who raised objections to the survey were not impleaded in the Writ
Petition. In the Writ Petition, a Division Bench directed the District
Collector Palghar and the Superintendent of Police, district Palghar,
to remain present before the Court through video conference. On
9th March 2022, the Division Bench passed an order. Paragraph 3
of the said order reads thus:
“3. From the annexures to the Writ Petition it appears
that this is a clear case of political pressure being exerted
[2024] 5 S.C.R. 161
Ajay Ishwar Ghute & Ors. v. Meher K. Patel & Ors.
on the Government officials like the Collector and the
Superintendent of Police [see pages 252 read with 259D
annexed to the Writ Petition]. However, orders of the Court
cannot be breached by any individual or organization by
creating unrest and the authorities cannot be heard to
say that they are unable to tackle such lawlessness. We
therefore request the Advocate General to go through
the Writ Petition and assist the Court. Stand over to 14th
March, 2022, when the Collector and the Superintendent
of Police shall remain present.”
7. Mr Dattartraya Tulshidas Shinde, the Superintendent of Police of
Palghar district, filed an affidavit dated 14th March 2022 before the
High Court. The affidavit notes that when the work of construction
of the compound wall in terms of the order in the Arbitration Petition
commenced, the local tribals gathered an impression that it was an
attempt to illegally dispossess some of them who were declared
owners of certain lands. He stated that the tribals insisted that the
lands be demarcated before constructing the compound wall. The
Superintendent of Police has referred to his meeting held on 11th
March 2022 with the learned Advocate-General of the State, the
Collector of the District and the Superintendent of Land Records of the
District. The affidavit further records that the Deputy Superintendent
of Land Records agreed to provide staff for carrying out demarcation.
In paragraphs 9 and 10 of his affidavit, the Superintendent of Police
stated thus:
“9. If while constructing the aforesaid wall if appropriate
and adequate provision for access is made, enabling
those agriculturists who own and possess various
parcels of lands that are likely to get land locked
because of the erection of the compound wall, to
reach their respective agricultural lands owned
and possessed by them, one of the important for
obstructions to the compound wall, at hand of the
tribals, will get resolved.
10. If an assurance is given to the tribals who legally own
and possess various parcels of land that are likely to get
covered by the proposed erection of the compound wall
that they are not going to dispossessed or ousted, much
162 [2024] 5 S.C.R.
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less illegally by the erection of the compound wall itself,
in any view, major reason for obstruction to the erection
of the compound wall, by the tribals, will disappear.”
(emphasis added)
8. On 14th March 2022, Mr Mahesh Ingale, the District Superintendent
of Land Records, who is a survey officer under the Maharashtra Land
Revenue Code, 1966 (for short, ‘the MLR Code’), filed an affidavit.
In paragraph 9 of his affidavit, he stated thus:
“9. I say that after the measurement, as aforesaid, was
carried out and the original records maintained by my
office were verified in that context it appears that, there
are various lands situate within survey number 173 in
respect of which, as a result of proceedings initiated
in the Bombay Tenants and Agricultural Lands Act,
various persons have become owners of the lands of
various pockets that have been marked in red colour,
in the map, which has been produced on 14.03.2022
before this Hon’ble Court. There are also certain
persons to whom the petitioner and others have sold
small portions of the lands and thus these persons
have become owners and are in possession thereof.
If a compound wall is constructed as desired by the
petitioner, the aforesaid pieces of land owned by the
third parties and lawfully possessed by them are likely
to get land locked. Therefore, in my submission, while
constructing the aforesaid compound wall, appropriate
arrangements will have to be made to provide due access
to these lawful owners and occupiers of various parcels
of lands that is likely to be get land-locked on account of
the construction of the proposed wall.”
(emphasis added)
It is pertinent to note that the land bearing survey no. 173 is a part
of the property which is the subject matter of Arbitration Petition in
which consent terms were filed.
9. The Division Bench did not notice the specific contentions raised
by both the Government officers and did not direct the 1st and 2nd
respondents to implead the affected tribals as parties. Instead of
[2024] 5 S.C.R. 163
Ajay Ishwar Ghute & Ors. v. Meher K. Patel & Ors.
either directing impleadment of the affected parties or dismissing
the Writ Petition for non-joinder of necessary parties, the Division
Bench passed an order in terms of the “Minutes of Order” dated 16th
March 2022 signed by the advocate for 1st and 2nd respondents and
Panel-B counsel representing all Government officers including the
Superintendent of Police, the Collector and Superintendent of Land
Records. One Sambhaji Kharatmol purported to sign as an advocate
for interveners. The relevant part of the “Minutes of Order” makes
interesting reading. Paragraph 2 reads thus:
“2. Mr. Kumbhakoni, the Learned Advocate General for
the State of Maharashtra, has tendered the plan showing
the land of Mrs. Meher Khushru Patel and Others (Parsi
Dairy Farm) S No. 173/1,2,3,4,5,6,7,8,10,15,16,18, S. No.
55, 61, 200 and 202 Situated at Village – Varwada, Taluka
– Talasari, Dist. – Palghar. The same is taken on record
and marked as ‘X’ are stated to belong to third parties.
However, the survey numbers mentioned against serial
no. 1. 5. 8 and 10 to 12 in the legend in the plan marked
‘X’ are now confirmed by the Petitioners to belong to the
Petitioners’ firm – Parsi Dairy Farm.”
Paragraph 4 notes both the affidavits dated 14th March 2022, which
we have referred to above and records that the statements of the said
officers were accepted. The “Minutes of Order” provides for issuing
a direction to the survey authorities to carry out the demarcation of
the boundary and a direction to the police to provide protection for
carrying out the measurement and construction of the compound
wall. Clause (iii) of paragraph 6 of the “Minutes of Order” reads thus:
“6.........................................................................................
(i) .............................................................................
(ii) .............................................................................
(iii) The Construction of the boundary wall as per
the order dated 12th February 2021 by the
Learned Single Judge in the Arbitration Petition
no. 451 of 2018, shall be carried out by the
Petitioners simultaneously with the aforesaid
work of demarcation and marking of points.
The Petitioners shall ensure that sufficient
164 [2024] 5 S.C.R.
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access is provided for the other owners of
land whose property falls within the confines
of the boundary wall in such a manner that
the dame do not become land locked by virtue
of the construction of the boundary wall.”
(emphasis added)
Thus, the fact that the third parties would be affected by the
construction of the compound wall is noted in the “Minutes of Order”.
The Writ Petition was disposed of on 16th March 2022 by a cryptic
order directing that the Writ Petition stands disposed of in terms of the
“Minutes of Order” taken on record and marked “X” for identification.
Paragraphs 2 and 3 of the said order read thus:
“2. The Minutes of the Order are signed by the learned
Advocate appearing for the Petitioners, the Learned
AGP appearing for Respondent Nos. 1 to 6 and 10 to 12
along with the Advocate General as well as the learned
Advocate appearing for the Interveners / farmers –
Shankar Kharpade, Raghu Kharpade, Ganu Kharpade,
Sadu Kharpade, Sonu Paadvi, Pradeep Savji Urade, Ajay
Kharpade, Suresh Kharvade and Sarita Kharvade carrying
farming activities on land bearing Survey No. 390 (part).
3. The above Writ Petition is disposed of in terms of the
Minutes of the Order dated 16th March, 2022.”
Reasons were not recorded for passing an order in terms of the
‘Minutes of Order’. A Government counsel signed the “Minutes of
Order” notwithstanding a clear stand taken in the affidavits dated
14th March 2022 filed by the senior Government officers who had
emphasized that tribals were likely to be affected by the construction
of the compound wall. The Government pleader, as an officer of
the Court, owed a duty to the Court to point out the requirement
of impleading necessary parties who were tribals. Even the bench
did not take note of the admitted fact that third parties would have
been affected by the construction of the compound wall that was
permitted to be constructed under police protection. The Court
ignored the fundamental principle that the issue of whether the third
parties’ properties would be landlocked due to the construction of the
wall could be decided only after hearing the concerned parties. The
[2024] 5 S.C.R. 165
Ajay Ishwar Ghute & Ors. v. Meher K. Patel & Ors.
least the Court could have done was to direct that a notice of survey
should be issued to the affected tribals. Even that was not done.
10. The present appellants sought a review of this order. The contentions
raised by them can be briefly stated as follows:
a) Out of 30 review petitioners, review petitioner nos. 7 to 18 were
purportedly shown as interveners in the “Minutes of Order”,
though they had not engaged any advocate;
b) The said interveners never met the advocate who is shown to
have signed the “Minutes of Order” on their behalf;
c) The appellants had rights in respect of the several properties
which were likely to be adversely affected by the construction
of the compound wall; and
d) The elementary principles of natural justice were not followed
before permitting the construction of a compound wall under
police protection.
A Division Bench dismissed the review petition by the impugned
order. The Court held that if, according to the appellants, any illegality
has been committed, notwithstanding the observations made in the
order dated 16th March 2022, the appellants can raise an appropriate
grievance before the appropriate forum.
11. The order dated 9th February 2024 passed by this Court on the
present appeal reads thus:
“We direct the State Government to comply with the earlier
order of filing the affidavit. The said affidavit to be filed
within a period of two weeks from today.
The minutes of the order on page 63 of the Petition record
the statement of the owners, which reads thus:
“iii...The Petitioners shall ensure that sufficient
access is provided for the other owners of land
whose property falls within the confines of the
boundary wall in such a manner that the same
do not become land locked by virtue of the
construction of the boundary wall.”
We direct the petitioners before the High Court who are
parties here to file an affidavit stating the names of the
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owners who are referred to in Clause iii of the minutes
of the order. The said affidavit to be filed within a period
of two weeks.
The learned counsel appearing for the petitioners will
take instructions whether the petitioners want to stand by
the allegations made by him against the sitting Judges of
the High Court, the members of the Bar and the learned
Advocate General.
List on 11th March, 2024.”
A further order dated 11th March 2024 was passed, which reads thus:
“ Notwithstanding the order dated 9th February, 2024,
the petitioners before the High Court have chosen not to
disclose the names of the parties who are referred in the
Minutes of the Order.
The learned senior counsel appearing for the petitioners
before the High Court and the learned counsel appearing
for the State assure the Court that within two weeks from
today, they will place on record the names and other details
of the parties who are referred in clause (3) of the Minutes
of the order dated 16th March, 2022. The learned senior
counsel appearing for the petitioners before the High Court
seeks time to file a proper affidavit in terms of the order
dated 9th February, 2024.
List on 5th April, 2024.”
An affidavit dated 24th March 2024 was filed by the 1st and 2nd
respondents in compliance with the orders dated 9th February
2024 and 11th March 2024. They stated that a boundary wall was
constructed between March 2022 and June 2022 after the survey
was carried out. They stated that the compound wall had been built
in such a manner that no person was landlocked or in any manner
inconvenienced. In the affidavit, they have given details of the land
owned by the Parsi Dairy Farm (the land subject matter of Arbitration
Petitions) and the names of several persons who are owners of the
lands adjacent to the land of the Parsi Dairy Farm. It is claimed in
the affidavit that notwithstanding the construction of the compound
wall, the owners of the adjacent lands continue to enjoy unhindered
and unfettered access to their respective land.
[2024] 5 S.C.R. 167
Ajay Ishwar Ghute & Ors. v. Meher K. Patel & Ors.
SUBMISSIONS IN BRIEF
12. The learned counsel for the appellant submitted that the impugned
order passed based on the “Minutes of Order” is completely illegal and
vitiated by the non-joinder of necessary parties. The learned senior
counsel for the 1st and 2nd respondents and the learned counsel for
the State defended the impugned order by submitting that no one
has been prejudiced due to the construction of the compound wall.
13. During the earlier hearings, we had repeatedly suggested to the
learned senior counsel appearing for the 1st and 2nd respondents that
the only proper course would be to remand the Writ Petition with a
direction to implead persons claiming to be affected by the construction
of the compound wall, as it seems to be an admitted position that
several persons are likely to be affected by the construction of the
compound wall in terms of the orders passed in the Writ Petition.
However, the 1st and 2nd respondents did not accept the suggestion.
Hence, we are called upon to decide this appeal on merits.
CONSIDERATION OF SUBMISSIONS
14. We have already quoted what the Deputy Superintendent of Police
and the Superintendent of Land Records stated in their respective
affidavits filed on 14th March 2022. In so many words, both of them
stated on oath that the tribals who own and possess various parcels
of adjacent lands were likely to be affected by the construction of the
compound wall. In fact, in paragraph 9 of his affidavit, the District
Superintendent of Land Records, who is the survey officer of the
district under the MLR Code in categorical terms stated that if the
compound wall is constructed as desired by the petitioners in the
Writ Petition (1st and 2nd respondents herein), pieces of lands owned
and lawfully possessed by third parties are likely to get landlocked.
15. Now, we come to the “Minutes of the Order”. According to the latest
affidavit of the 1st and 2nd respondents, several tribals claim to
be owners of the lands adjacent to those claimed by the 1st and
2nd respondents. The “Minutes of the Order” refers to the officers’
affidavits. Sub-clause (iii) of clause 6, which we have quoted above,
records that the writ petitioners shall ensure that sufficient access
is provided for the other owners of the land whose property falls
within the confines of the boundary wall in such a manner that their
lands do not become landlocked. Even assuming that advocate
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Sambhaji Kharatmol was authorized by nine interveners to sign, the
fact remains that several other owners or occupants of the lands
likely to be affected by the compound wall were not impleaded as
parties to the petition. Without even adverting to the factual aspects
brought on record by two responsible Government officers in their
affidavit dated 14th March 2022, the Division Bench mechanically
passed an order in terms of the “Minutes of the Order” and disposed
of the Writ Petition. Now we have a scenario where, under police
protection, survey work and construction of the compound wall
have been carried out by 1st and 2nd respondents. An illegality has
been allowed to be perpetrated under the protection of the police.
As noted earlier, even the Government counsel did not perform his
duty by submitting before the Court as an officer of the Court about
the failure to implead the necessary parties.
PRACTICE OF PASSING ORDERS IN TERMS OF “MINUTES OF
ORDER” FILED BY THE ADVOCATES
16. Now, we deal with the concept of “Minutes of Order”, which is peculiar
only to the Bombay High Court. This Court, in the case of Speed
Ways Picture Pvt. Ltd. and Anr. v. Union of India and Anr.1 had
an occasion to consider the practice of passing orders in terms of
“Minutes of Order”. Paragraphs 5 and 6 of the said decision reads thus:
“5. The basis upon which the review petition was decided
is, in our view, not correct. Counsel for the appellants
and the respondents put it in writing that a judgment of
this Court and a Full Bench judgment of the High Court
covered the matter. The writ petition in that High Court
could, therefore, not succeed. This could have been
orally stated and recorded by the Court. As a courtesy
to the Court, the practice of long standing is to put
statements such as these in writing in the form of
“minutes of order” which are tendered and on the
basis of which the Court passes the order: “Order in
terms of minutes”. The signatures of counsel upon
“minutes of order” are intended for identification so
as to make the order binding upon the parties’ counsel
represented. An order in terms of minutes is an order
1 [1996] Supp. 7 SCR 636 : (1996) 6 SCC 705
[2024] 5 S.C.R. 169
Ajay Ishwar Ghute & Ors. v. Meher K. Patel & Ors.
in invitum, not a consent order. It is appealable and
may be reviewed.
6. It would be a different matter if the order of the court
was passed on “Consent Terms”, i.e., on a statement
above the signatures of counsel which expressly stated
it was “by consent”. The order of the court in such event
would read: “Order in terms of consent terms.”
(emphasis added)
17. As the order passed in terms of the “Minutes of Order” is an order
in invitum, when a document styled as “Minutes of Order” signed
by the advocates for the parties is tendered on record, the Court
must first examine whether it will be lawful to pass an order in
terms of the “Minutes of Order”. The Court must consider whether
all necessary parties have been impleaded to the proceedings
in which the “Minutes of Order” have been filed. The Court must
consider whether third parties will be affected by the order sought
in terms of the “Minutes of Order”. If the Court is of the view that
necessary parties were not impleaded, the Court ought to allow
the petitioner to implead them. On the failure of the petitioner to
implead them, the Court must decline to pass an order of disposing
of the petition in terms of the “Minutes of Order”. The reason is
that an order of the Court passed without hearing the necessary
parties would be illegal. The Court must remember that though the
parties may say that they have agreed to what is recorded in the
“Minutes of Order”, the order passed by the Court based on the
“Minutes of Order” is not a consent order. It is an order in invitum.
Only if the Court is satisfied that an order in terms of the “Minutes
of the Order” would be legal, the Court can pass an order in terms
of the “Minutes of Order”. While passing an order in terms of the
“Minutes of Order”, the Court must record brief reasons indicating
the application of mind.
18. For the convenience of the Court and as a matter of courtesy,
the advocates draft “Minutes of Order” containing what could be
incorporated by the Court in its order. Perhaps this practice was
evolved to save the time of the Court. The advocates who sign and
tender the “Minutes of Order” have greater responsibility. Before they
sign the “Minutes of the order”, the advocates have an important
duty to perform as officers of the Court to consider whether the order
170 [2024] 5 S.C.R.
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they were proposing will be lawful. They cannot mechanically sign
the same. After all, they are the officers of the Court first and the
mouthpieces of their respective clients after that.
19. Even if parties file consent terms, while accepting the consent terms
in terms of Rule 3 of Order XXIII of the Code of Civil Procedure
Code, 1908, the Court is duty-bound to look into the legality of
the compromise. The Court has the jurisdiction to decline to pass
a consent order if the same is tainted with illegality. However, an
order passed by the Court in terms of compromise recorded in the
consent terms is a consent order which will not bind the persons
who were not parties to the consent terms unless they were claiming
through any of the parties to the consent terms.
20. We summarise our conclusions regarding the concept of the “Minutes
of Order” as follows:
a) The practice of filing “Minutes of Order” prevails in the Bombay
High Court. As a courtesy to the Court, the advocates appearing
for the parties to the proceedings tender “Minutes of Order”
containing what could be recorded by the Court in its order.
The object is to assist the Court;
b) An order passed in terms of the “Minutes of Order” tendered
on record by the advocates representing the parties to the
proceedings is not a consent order. It is an order in invitum
for all purposes;
c) Before tendering the “Minutes of Order” to the Court, the
advocates must consider whether an order, if passed by the
Court in terms of the “Minutes of Order,” would be lawful.
After “Minutes of Order” is tendered before the Court, it is
the duty of the Court to decide whether an order passed in
terms of the “Minutes of Order” would be lawful. The Court
must apply its mind whether the parties who are likely to be
affected by an order in terms of the “Minutes of Order” have
been impleaded to the proceedings;
d) If the Court is of the view that an order made in terms of
the “Minutes of Order” tendered by the advocates will not be
lawful, the Court should decline to pass an order in terms of
the “Minutes of Order”; and
[2024] 5 S.C.R. 171
Ajay Ishwar Ghute & Ors. v. Meher K. Patel & Ors.
e) If the Court finds that all the parties likely to be affected by an
order in terms of the “Minutes of Order” are not parties to the
proceedings, the Court will be well advised to defer passing
of the order till all the necessary parties are impleaded to the
proceedings.
FINDINGS ON FACTS OF THE CASE
21. In the facts of the case, the senior district-level officials of the State
had stated on oath that the construction of the compound wall, in
respect of which relief was sought in the Writ Petition, would affect
the rights of several third parties. However, the Court completely
ignored the same. Even in clause 6 (iii) of the “Minutes of Order”, there
was enough indication that the compound wall, if not appropriately
constructed, would affect the rights of owners of the other lands.
Therefore, it was the duty of the Court to have called upon the
1st and 2nd respondents to implead the persons who were likely to
be affected. The 1st and 2nd respondents could not have pleaded
ignorance about the names of the concerned parties as they have
referred to the owners of the other lands in the “Minutes of Order”.
However, the Division Bench of the High Court has failed to make
even an elementary enquiry whether third parties will be affected
by the construction of the compound wall under police protection.
Hence, the order dated 16th March 2022 passed in the Writ Petition
in terms of the “Minutes of Order” is entirely illegal and must be set
aside. The Writ Petition will have to be remanded to the High Court
to decide the same in accordance with the law.
22. The construction of the compound wall is complete; therefore, while
remanding the Writ Petition to the High Court, we must clarify that the
construction will be subject to the final decision in the Writ Petition.
After remand, the High Court will have to call upon the 1st and 2nd
respondents to implead necessary parties to the petition. If required,
the Court must decide who the necessary parties to the petition are.
It will always be open for the appellants to apply for impleadment.
While determining who the necessary and proper parties are, the
appellants’ application will have to be considered by the High Court.
It follows that on the failure of the 1st and 2nd respondents herein to
implead the necessary parties, the High Court will be well within its
power to dismiss the Writ Petition and pass an order of restoration
of status quo ante by directing demolition of the compound wall.
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23. Hence, we pass the following order:
a) We set aside the order dated 16th March 2022 in Writ Petition No.
2584 of 2022 and the order dated 20th July 2023 in the Review
Petition and restore Writ Petition No. 2584 of 2022 to the file of
the High Court;
b) We direct the Registrar (Judicial) of the Bombay High Court to
list the restored Writ Petition before the roster Bench on the
first day of re-opening of the Court after the ensuing summer
vacation. The parties to the appeal shall appear before the Court
on that day as they will not be entitled to any further notice of
the Writ Petition;
c) It will be open for the appellants to apply for impleadment in the
Writ Petition on all available grounds;
d) After the remand, the High Court will decide whether all the
necessary parties likely to be affected by the construction of the
compound wall in terms of the “Minutes of Order” were impleaded
as party respondents. While doing so, the case of the petitioners
shall also be considered;
e) If the Court concludes that the 1st and 2nd respondents had not
impleaded necessary parties to the Writ Petition and within a
reasonable time if the 1st and 2nd respondents fail to implead the
necessary parties, the High Court will be free to follow the logical
course of dismissing the Writ Petition. While doing so, the High
Court will have to order the restoration of the status quo ante by
directing the demolition of the compound wall; and
f) After the 1st and 2nd respondents implead all the necessary
parties to the Writ Petition, the same shall be decided finally in
accordance with law. We clarify that construction of the compound
wall made by the 1st and 2nd respondents shall be subject to the
final outcome of the restored petition. Therefore, if the construction
is found to be illegal or if it is found that it adversely affects the
rights of the third parties, the High Court may pass an order of
demolition of the compound wall or a part thereof.
24. The appeal is partly allowed on the above terms.
25. A copy of this judgment will be immediately forwarded to the Registrar
(Judicial) of the Bombay High Court.
[2024] 5 S.C.R. 173
Ajay Ishwar Ghute & Ors. v. Meher K. Patel & Ors.
26. We record the assurance of the learned counsel appearing for the
appellants that they will not press complaints filed by them against
the sitting or former Judges of the Bombay High Court, members
of the Bar and the learned Advocate-General. We clarify that if
the appellants have commenced any proceedings based on the
complaints, the same shall stand disposed of.
Headnotes prepared by: Result of the case:
Vidhi Thaker, Hony. Associate Editor Appeal partly allowed.
(Verified by: Shadan Farasat, Adv.)
