Supreme Court clarifies the use of “Minutes of Order” in land disputes, emphasizing third-party rights: Ajay Ishwar Ghute & Ors. vs. Meher K. Patel & Ors. (30 April 2024)

Introduction

Date of the Judgment: 30 April 2024

Citation: 2024 INSC 353

Judges: Abhay S. Oka, J., Ujjal Bhuyan, J.

Can a High Court issue an order based on a “Minutes of Order” submitted by advocates, especially when it affects the rights of individuals not party to the proceedings? The Supreme Court of India recently addressed this critical question in a civil appeal concerning a land dispute. The core issue revolved around whether the High Court of Judicature at Bombay was justified in allowing the construction of a compound wall based on a “Minutes of Order,” without considering the potential impact on the rights of third parties. The Supreme Court, in this case, has clarified the practice of passing orders based on “Minutes of Order” in the High Court of Judicature at Bombay.

The Supreme Court bench comprised Justices Abhay S. Oka and Ujjal Bhuyan. Justice Abhay S. Oka authored the judgment.

Case Background

The dispute originated from Arbitration Petitions filed under Section 9 of the Arbitration and Conciliation Act, 1996, concerning lands of Parsi Dairy Farm. Consent terms were filed, and orders were passed by a Single Judge of the High Court of Judicature at Bombay, including directions for police protection to facilitate the handover of possession. Subsequently, an interim application was filed, alleging obstruction in the construction of a compound wall, leading to further directions for police assistance.

The Deputy Superintendent of Land Records, during a survey, noted objections from several individuals, including some of the appellants, who claimed ownership of adjacent lands. Despite these objections, the 1st and 2nd respondents filed a Writ Petition under Article 226 of the Constitution of India, seeking enforcement of the previous orders. The persons who raised objections to the survey were not impleaded in the Writ Petition.

The High Court of Judicature at Bombay, instead of directing impleadment of the affected parties, passed an order based on the “Minutes of Order” signed by the advocates, allowing the construction of the compound wall under police protection. This order was challenged by the present appellants, who argued that their rights were being affected without a proper hearing.

Timeline

Course of Proceedings

The initial proceedings involved Arbitration Petitions before a Single Judge of the High Court of Judicature at Bombay, where consent terms were filed, and orders were passed. Subsequently, an interim application was filed due to obstruction in the construction of a compound wall. The Single Judge directed police assistance for the construction.

A Writ Petition was then filed before a Division Bench of the High Court of Judicature at Bombay, seeking enforcement of the earlier orders. The Division Bench, instead of directing impleadment of the affected parties, passed an order based on the “Minutes of Order” signed by the advocates, allowing the construction of the compound wall under police protection. The review petition filed against this order was dismissed, leading to the present appeal before the Supreme Court.

Legal Framework

The case primarily involves the interpretation and application of Article 226 of the Constitution of India, which grants High Courts the power to issue writs for the enforcement of fundamental rights and for other purposes. The Supreme Court also considered the implications of orders passed based on “Minutes of Order,” a practice unique to the High Court of Judicature at Bombay. The Court also referred to Section 9 of the Arbitration and Conciliation Act, 1996, which deals with interim measures by the court.

The Court also referred to the Maharashtra Land Revenue Code, 1966 (MLR Code) in the context of the survey officer’s role.

Arguments

Appellants’ Arguments:

• The appellants contended that the order passed by the High Court of Judicature at Bombay based on the “Minutes of Order” was illegal due to the non-joinder of necessary parties, i.e., the tribals whose lands were likely to be affected by the construction of the compound wall.
• They argued that the “Minutes of Order” included some of the appellants as interveners, even though they had not engaged any advocate, nor did they meet the advocate who purportedly signed on their behalf.
• The appellants submitted that their rights in respect of several properties were adversely affected by the construction of the compound wall, and the elementary principles of natural justice were not followed.

Respondents’ Arguments:

• The 1st and 2nd respondents and the State defended the High Court’s order, arguing that no one had been prejudiced due to the construction of the compound wall.
• They submitted that sufficient access was provided for other landowners and that no one was landlocked.

The core of the appellants’ argument was that the High Court of Judicature at Bombay failed to consider the rights of the affected tribals, who were not made parties to the proceedings. The respondents’ argument was that the construction did not prejudice anyone, and sufficient access was provided.

Issues Framed by the Supreme Court

The main issue framed by the Supreme Court was:

1. Whether the High Court was justified in passing an order based on the “Minutes of Order” under Article 226 of the Constitution of India, permitting the construction of a compound wall under police protection, without considering the rights of third parties.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court referred to the following authorities:

Judgment

The Supreme Court held that the High Court’s order based on the “Minutes of Order” was illegal due to the non-joinder of necessary parties. The Court emphasized that the High Court should have ensured that all affected parties, particularly the tribals whose lands were likely to be impacted, were impleaded in the proceedings.

How each authority was viewed by the Court?

• Speed Ways Picture Pvt. Ltd. and Anr. v. Union of India and Anr. (1996) 6 SCC 705: The Supreme Court relied on this case to clarify that orders passed in terms of “Minutes of Order” are not consent orders but orders in invitum, thereby emphasizing the need for judicial scrutiny.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to uphold the principles of natural justice and ensure that no one is deprived of their rights without a proper hearing. The Court emphasized that the High Court should have considered the affidavits of the government officers, which clearly stated that the construction of the compound wall would affect the rights of third parties. The Court also highlighted that the practice of passing orders based on “Minutes of Order” should not be used to bypass the requirement of impleading necessary parties.

The Court’s reasoning was based on a combination of factual findings and legal principles. The factual aspect included the affidavits of government officials and the “Minutes of Order,” while the legal aspect included the interpretation of Article 226 of the Constitution of India and the principles of natural justice.

Key Takeaways

• Orders passed based on “Minutes of Order” are not consent orders but orders in invitum and must be scrutinized by the Court.
• High Courts must ensure that all necessary parties, particularly those whose rights are likely to be affected, are impleaded in the proceedings.
• The principles of natural justice must be followed, and no one should be deprived of their rights without a proper hearing.
• Advocates, as officers of the court, have a duty to ensure that orders they propose are lawful.
• The practice of passing orders based on “Minutes of Order” should not be used to bypass the requirement of impleading necessary parties.

Directions

The Supreme Court set aside the High Court’s order and remanded the Writ Petition back to the High Court with the following directions:

• The High Court must call upon the 1st and 2nd respondents to implead necessary parties to the petition.
• The High Court must decide who the necessary parties to the petition are.
• The appellants are allowed to apply for impleadment.
• If the 1st and 2nd respondents fail to implead the necessary parties, the High Court is empowered to dismiss the Writ Petition and order the restoration of status quo ante by directing the demolition of the compound wall.
• The construction of the compound wall will be subject to the final outcome of the restored petition.

Development of Law

The ratio decidendi of this case is that High Courts must ensure that all necessary parties are impleaded in proceedings, particularly when their rights are likely to be affected by an order. The Supreme Court clarified that orders passed based on “Minutes of Order” are not consent orders but orders in invitum, and the court must examine the legality of such orders. This case has reinforced the importance of natural justice and the need for judicial scrutiny in such matters.

Conclusion

The Supreme Court’s judgment in Ajay Ishwar Ghute vs. Meher K. Patel clarifies the legal position on orders passed based on “Minutes of Order,” emphasizing the need to protect the rights of third parties. The Court has set aside the High Court’s order and remanded the matter back, directing the High Court to ensure that all necessary parties are impleaded and heard before making a final decision. This judgment reinforces the principles of natural justice and the importance of judicial scrutiny in all cases.