2024 INSC 353

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4786 OF 2024

AJAY ISHWAR GHUTE & ORS. …APPELLANT(S)

VERSUS

MEHER K. PATEL & ORS. …RESPONDENT(S)

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
Signature Not Verified

Digitally signed by
ASHISH KONDLE
parties prevails perhaps only in the High Court of
Date: 2024.04.30
16:11:41 IST
Reason:
Judicature at Bombay (for short, ‘the Bombay High

CIVIL APPEAL NO. 4786 OF 2024 Page 1 of 26

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 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

CIVIL APPEAL NO. 4786 OF 2024 Page 2 of 26

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

CIVIL APPEAL NO. 4786 OF 2024 Page 3 of 26

 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 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

CIVIL APPEAL NO. 4786 OF 2024 Page 4 of 26

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 on the
Government officials like the Collector and

CIVIL APPEAL NO. 4786 OF 2024 Page 5 of 26

 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

CIVIL APPEAL NO. 4786 OF 2024 Page 6 of 26

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 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

CIVIL APPEAL NO. 4786 OF 2024 Page 7 of 26

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

CIVIL APPEAL NO. 4786 OF 2024 Page 8 of 26

 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 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. –

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 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 access is
provided for the other owners of land

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 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.”

CIVIL APPEAL NO. 4786 OF 2024 Page 11 of 26

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 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;

CIVIL APPEAL NO. 4786 OF 2024 Page 12 of 26

 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:

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 “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 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

CIVIL APPEAL NO. 4786 OF 2024 Page 14 of 26

 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.

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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

CIVIL APPEAL NO. 4786 OF 2024 Page 16 of 26

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
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

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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

1 (1996) 6 SCC 705

CIVIL APPEAL NO. 4786 OF 2024 Page 18 of 26

 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
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

CIVIL APPEAL NO. 4786 OF 2024 Page 19 of 26

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

CIVIL APPEAL NO. 4786 OF 2024 Page 20 of 26

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.
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

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 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.

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

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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

CIVIL APPEAL NO. 4786 OF 2024 Page 23 of 26

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 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;

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 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

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 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.
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.

……………………..J.
(Abhay S. Oka)

……………………..J.
(Ujjal Bhuyan)

New Delhi;
April 30, 2024.

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