TaxTMI 
TaxTMI 
2024 (5) TMI 59
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....h 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 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 ....
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....on 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....
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....he 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 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 pro....
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....bove 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 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 part....
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.... 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....
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....ant 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 word....
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....asion 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 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 stat....
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....e 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....
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....n 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. 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....