Source: Supreme Court

Why in News?

Recently the Supreme Court set aside the order passed by the Bombay High Court and said that the High Court has failed to make an elementary enquiry and the order only on the base of Minutes of Order is entirely illegal.

What was the Background of Ajay Ishwar Ghute & Ors v. Meher k. Patel & Ors. Case?

• Arbitration Petitions were filed under Section 9 of the Arbitration and Conciliation Act, 1996 (A & C Act) before a Single Judge of the Bombay High Court. The dispute in the Arbitration Petitions related to the lands of Parsi Dairy Farm.
• The High Court directed the police to provide police protection to the parties for completing the process of handing over possession.
• As per the consent terms a compound wall was to be constructed.
• Few local people obstructed the construction of the compound wall. These locals were not parties to the proceedings of either the Arbitration Petition or the interim application.
• A writ petition was filed under Article 226 of the Constitution of India, 1950(COI).
• The Division Bench of the High Court neither directing impleadment of the affected parties nor dismisses the Writ Petition for non-joinder of necessary parties. And passed the order in terms of the Minutes of Order.
• Reasons were not recorded for passing an order in terms of the Minutes of Order.
• Even the High Court did not take care 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 present appeal was filed before the Supreme Court.

What were the Court’s Observations?

• The Supreme Court set aside the order and held that such an order passed in terms of the Minutes of Order is an order in invitum and the Court must first examine whether it will be lawful to pass an order in terms of the Minutes of Order.
• The Court said that the High Court must consider that all the necessary parties are impleaded. The court must consider that third parties will be affected by the order which is passed in terms of the Minutes of Order and the Court must decline the petition on the failure of the petitioner to implead the necessary parties.
• Without hearing the necessary parties, an order passed by the Court is entirely illegal. The order based on the Minutes of Order is not a consent order.
• While passing an order in terms of the Minutes of Order, the Court must record brief reasons indicating the application of mind.

What are Minutes of Order?

• The advocates representing the parties can draft Minutes of Order for the convenience of the Court.
• Minutes of Order deals with what could be incorporated by the Court in its order.
• This practice evolved to save the time of the Court.
• The advocates who sign the Minutes of Order have greater responsibility to perform a duty as officers of the Court to consider whether the order they were proposing will be lawful.
• The practice of passing orders based on Minutes of Order submitted by the advocates representing the parties prevails perhaps only in the Bombay High Court.