Supreme Court guidelines on the peculiar practice of filing ‘Minutes of Order’ in Bombay High Court

While hearing the Ajay Ishwar Ghute & Ors. vs. Meher K. Patel & Ors. case on April 30, 2024, the Supreme Court (SC) of India addressed the peculiar practice of advocates filing ‘Minutes of Order’ in the Bombay High Court. The bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan said that while the practice is to assist the judges, it cautioned to ensure that the rights of third parties are not affected by the same. It said, “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 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.” Further, the top court made certain observations regarding the practice of ‘Minutes of Order’ which are listed as follows:

• “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;
• 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;
• 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;
• 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
• 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.”

The dispute in the Arbitration Petitions related to the lands of Parsi Dairy Farm. The 7th respondent in the Arbitration Petition filed an interim application in the disposed of Arbitration Petitions more than two years after filing consent terms. It records that the HC had directed the police to give police protection to the parties for completing the process of handing over possession. The occasion for applying 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 High Court disposed of the interim application by his order. Further,  a Writ Petition under Article 226 of the Constitution of India was filed. 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 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. It was observed that “Reasons were not recorded for passing an order in terms of the Minutes of Order.” 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, the appellants can raise an appropriate grievance before the appropriate forum. The matter was mentioned before the top court, it found that the order of the High Court was illegal. 

The SC said “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 the rights of the third parties, the High Court may pass an order of demolition of the compound wall or a part thereof.”