2024 (5) TMI 59 - SC - Indian Laws

Supreme Court sets aside order allowing compound wall construction under police protection for ignoring third party rights and procedural failures

AJAY ISHWAR GHUTE & ORS. Versus MEHER K. PATEL & ORS.

The SC set aside the HC's order permitting respondents to construct a compound wall under police protection. The HC failed to conduct elementary enquiry ... Permission to 1st and 2nd respondents (writ petitioners) to construct a compound wall under police protection - the senior district-level officials of the State had stated on oath that the construction of the compound wall, would affect the rights of several third parties. HELD THAT:- The Court completely ignored the oath. 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 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. Matter restored to the file of the High Court - the Registrar (Judicial) of the Bombay High Court is directed 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 - appeal allowed in part, Issues Involved:1. Justification of the High Court's drastic order under Article 226.2. Non-joinder of necessary parties in the Writ Petition.3. Legality of orders based on 'Minutes of Order'.4. Impact on third parties due to the construction of the compound wall.Issue 1: Justification of the High Court's drastic order under Article 226The Supreme Court examined whether the High Court was justified in permitting the 1st and 2nd respondents to construct a compound wall under police protection through its order dated 16th March 2022, based on 'Minutes of Order' signed by the advocates. The appellants' application for review of this order was rejected by the High Court on 20th July 2023, leading to the present appeal.Issue 2: Non-joinder of necessary parties in the Writ PetitionThe Supreme Court highlighted that the persons obstructing the construction were not parties to the Arbitration Petition or the interim application. Despite affidavits from senior Government officers indicating that tribals owning adjacent lands would be affected, the High Court did not direct the 1st and 2nd respondents to implead these affected parties. The Division Bench failed to make an elementary enquiry into whether third parties would be affected, resulting in an entirely illegal order.Issue 3: Legality of orders based on 'Minutes of Order'The Supreme Court discussed the peculiar practice of passing orders in terms of 'Minutes of Order' in the Bombay High Court. It emphasized that such orders are not consent orders but orders in invitum, requiring the Court to ensure all necessary parties are impleaded. The Court must record brief reasons indicating the application of mind before passing such orders. The practice aims to assist the Court but must be scrutinized for legality and fairness.Issue 4: Impact on third parties due to the construction of the compound wallThe affidavits from the Deputy Superintendent of Police and the Superintendent of Land Records indicated that the construction of the compound wall would likely landlock pieces of land owned by third parties. The Supreme Court noted that the High Court ignored these affidavits and the fact that several other owners or occupants of the lands were not impleaded as parties. The construction carried out under police protection without hearing the affected parties was deemed an illegality.Findings and Orders:1. The Supreme Court set aside the High Court's order dated 16th March 2022 and the review dismissal order dated 20th July 2023.2. The Writ Petition was remanded to the High Court for fresh consideration, directing the 1st and 2nd respondents to implead necessary parties.3. The High Court was instructed to determine necessary parties and decide the Writ Petition in accordance with the law, with the construction of the compound wall subject to the final outcome.4. The Supreme Court emphasized the duty of advocates and the Court to ensure legality and fairness in orders based on 'Minutes of Order'.Conclusion:The appeal was partly allowed, and the case was remanded to the High Court with specific directions to address the non-joinder of necessary parties and reassess the legality of the construction of the compound wall. The Supreme Court underscored the importance of adhering to principles of natural justice and the proper application of legal procedures.