Gujarat High Court
Shardaben D/O Davalbhai Patel vs State Of Gujarat on 7 October, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11047 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHARDABEN D/O DAVALBHAI PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR ASIT B JOSHI(2567) for the Petitioner(s) No. 1
MR J K SHAH, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 07/10/2024
ORAL JUDGMENT
1. Heard learned Advocate Mr. Asit B. Joshi for the petitioner and learned AGP Mr. J.K. Shah for the respondent-State. Learned Senior Advocate Ms. Trusha Patel has requested permission to address the Court Page 1 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined and whereas considering that an issue of legal importance is involved, learned Senior Advocate Ms. Patel has been heard by the Court.
2. At the outset, learned Advocate Mr. Asit B. Joshi would not press the Prayer 17 (B), the said request is acceded to. The present petition is taken up for rest of the prayers.
3. By way of this petition, the petitioner has challenged an order dated 15.07.2024 passed by the City Mamlatdar, Ghatlodiya, Ahmedabad, whereby the City Mamlatdar has refused request of the petitioner to mutate a registered document with regard to lis pendens in the revenue record inter alia observing that as per a Government Circular dated 31.05.2022, since there is no provision in the Gujarat Land Revenue Code for mutating a registered document with regard to lis pendens and whereas according to the said Circular, lis pendens should be mutated only if there is an order of a judicial court.
4. Learned Advocate Mr. Joshi for the petitioner would submit that the view taken by the Mamlatdar is completely illegal and is against the law settled by this Court in catena of decisions. Learned Advocate Mr. Joshi in this regard would submit that the issue in question is with regard to various parcels of land bearing Block/Revenue Survey Nos. 229, Page 2 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined 259/2, 199, 383/3 and 383/4 situated at mouje Thaltej, Taluka Ghatlodiya, District Ahmedabad.
5. It is submitted that the petitioner had insofar as the property in question is concerned, preferred a civil suit being Special Civil Suit No. 370/2010 and whereas the learned Trial Court vide judgment and order dated 26.09.2022 had dismissed the civil suit against which, the petitioner had preferred First Appeal No. 5014 of 2022, which came to be dismissed by this Court vide judgment dated 18.12.2023. It is submitted that against the order passed by this Court in the said First Appeal, confirming the order of the learned Trial Court, the petitioner had approached the Hon'ble Supreme Court by preferring Special Leave Petition (C) No. 3178 of 2024 and whereas the Hon'ble Supreme Court had passed an order on 12.02.2024 calling for the record of the Trial Court. It is submitted that the said petition before the Hon'ble Supreme Court is still pending. It is stated that the petitioner wanted to have the lis i.e. the litigation pending before the Hon'ble Supreme Court mutated in the revenue record and for such purpose, the petitioner had registered the lis vide document dated 25.04.2024 and upon the petitioner presenting the said document for mutation in the revenue record, the same came to be rejected by the Mamlatdar, being aggrieved by which, the petitioner has Page 3 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined approached this Court.
6. Learned Advocate Mr. Joshi would draw the attention of this Court to a decision of this Court in case of Dipakbhai Manilal Patel Vs. State of Gujarat through Secretary, reported in 2007 (2) GLR 1297 and would submit that a learned Co-ordinate Bench of this Court in the said decision has inter alia observed that once a registered document with regard to a pending litigation is presented before the Mamlatdar, the Mamlatdar is required to enter the same in the revenue record. 6.1 Learned Advocate Mr. Joshi would submit that the view taken by the learned Co-ordinate Bench in case of Dipakbhai Manilal Patel (supra) is consistently being followed by this Court and whereas learned Advocate also refers decision of this Court in case of Daxaben W/o Maheshbhai Thakor D/o Dilipji Popatji Thakor Vs. State of Guarat, dated 12.01.2023 in Special Civil Application No. 16318 of 2021. Learned Advocate would submit that in the said decision, a learned Co- ordinate Bench of this Court had noticed the Circular of the State Government dated 30.05.2022 and would submit that inspite of the said Circular, relying upon the decision in case of Dipakbhai Manilal Patel (supra), the learned Co-ordinate Bench, had directed the State Authority to mutate the document with regard to lis pendens in the revenue record. Page 4 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024
NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined 6.2 Learned Advocate Mr. Joshi would further draw the attention of this Court to decisions of learned Co-ordinate Bench dated 10.01.2024 in Special Civil Application No. 13930 of 2023 and in Special Civil Application No. 21938 of 2023, whereby the learned Co-ordinate Bench referring to decisions of in case of Dipakbhai Manilal Patel and Daxaben W/o Maheshbhai Thakor D/o Dilipji Popatji Thakor (supra), had reiterated that same view that upon a registered document of lis pendens being presented to the Mamlatdar, the Mamlatdar is required to make appropriate mutation in the revenue record. 6.3 Learned Advocate Mr. Joshi would submit that the petitioner having submitted the registered document with regard to the pending litigation, the Mamlatdar, in view of the law laid down by this Court, could not have rejected such an application. Learned Advocate would therefore request interference of this Court in that regard.
7. This petition is vehemently opposed by learned AGP Mr. J.K. Shah for the respondent-State. Learned AGP Mr. Shah would submit that in the decisions relied upon by the learned Advocate for the petitioner, an important aspect has not been noticed by all the learned Co-ordinate Benches, i.e. with regard to Section 135C of the Gujarat Land Revenue Code. Learned AGP would submit that as per Section 135C, the revenue Page 5 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined authorities are required to mutate details with regard to acquisition of right in the property only and whereas according to the learned AGP, since a litigation is not equivalent to acquisition of right, a registered document as regards pendency of a litigation is not required to be mutated in the revenue record.
7.1 Learned AGP Mr. Shah has further relied upon decision of Division Bench of the High Court of Bombay in case of Pramod Moreshwar Tattu; Narayan Atmaram Bohir and Others Vs. Sub Divisional Officer, Baramati and Others; Tahsildar, Thane Division, Thane and Others, reported in 2018 LawSuit (Bom) 1197. Learned AGP relying upon the said decision would submit that the Division Bench of the High Court of Bombay, has inter alia come to a conclusion that Section 148 of the Maharashtra Land Revenue Code which is pari materia to Section 135C of the Gujarat Land Revenue Code, does not envisage mutating of anything except acquisition of right in the property.
8. Learned Senior Advocate Ms. Trusha Patel would reiterate the submissions made by learned AGP Mr. Shah and would also draw the attention of this Court to a decision of a learned Co-ordinate Bench of this Court in case of Ghanshyam Jashwantlal Raval Vs. State of Guajrat, reported in 2009 (2) GLR 1743. Learned Senior Advocate Ms. Page 6 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined Patel would submit that in the decision of Ghanshyam Jashwantlal Raval (supra), a learned Co-ordinate Bench had appreciated the contention that Section 135C of the Gujarat Land Revenue Code inter alia states with regard to mutation of right in the property in the revenue record and whereas the learned Senior Advocate would submit that the learned Co-ordinate Bench in the said decision had laid down the correct view and possibly, according to the learned Senior Advocate, the view taken by the learned Co-ordinate Benches, which is relied upon by the learned Advocate for the petitioner may not be the correct view.
9. Heard learned Advocates for the respective parties and perused the documents on record.
10. At the outset, insofar as the decision relying upon by learned Senior Advocate Ms. Patel in case of Ghanshyam Jashwantlal Raval (supra) is concerned, it requires to be observed that the learned Co- ordinate Bench, while passing the said decision, had noticed existence of a decision of a learned Co-ordinate Bench in case of Dipakbhai Manilal Patel (supra), which is relied upon by the learned Advocate for the petitioner. It is after having noticed the decision of Dipakbhai Manilal Patel that the learned Co-ordinate Bench had attempted to distinguish the decision of the Dipakbhai Manilal Patel (supra) and come to a Page 7 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined conclusion that acquisition of a right is different from a litigation with regard to the property in question.
10.1 To this Court, with due respect such a view was not open for the learned Co-ordinate Bench to have taken. As noticed, when the decision of Dipakbhai Manilal Patel (supra) had been brought to the notice of the learned Co-ordinate Bench in case of Ghanshyam Jashwantlal Raval (supra), the learned Co-ordinate Bench had only two options i.e. either to follow the decision of Dipakbhai Manilal Patel (supra) or to have referred the issue to a Larger Bench after placing the papers before the Hon'ble Chief Justice. The learned Co-ordinate Bench had did not have the third option of attempting to distinguish the decision of Dipakbhai Manilal Patel (supra).
10.2 It would be profitable at this stage to refer to observations of the Hon'ble Supreme Court in case of State through Central Bureau of Investigation Vs. Hemendhra Reddy and Another, reported in [2023] 7 S.C.R. 134 Paragraphs No. 80 to 82 being relevant for the present purpose are quoted hereinbelow for benefit.
"80. Thus, one Co-ordinate Bench of the High Court, virtually sat in appeal over the judgment of another Co-ordinate Bench and took a contrary view. The learned Single Judge says in his impugned order that the High Court in its earlier order dated 11.09.2014 Page 8 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined referred to above omitted to consider the decision of this Court in the case of Vinay Tyagi (supra) and therefore, per incuriam whereas, the decision of this Court in the case of Vinay Tyagi (supra) was very much looked into and has been referred to in the order dated 11.09.2014. Thus, two contrary views have been taken by different judges of equal strength of the High Court on the same subject and litigation.
81. We would like to extend a word of caution over here. While it is open to a learned Judge to differ with a view of a Co-ordinate Bench the sequitur is to make a reference to a larger Bench on papers being placed before the learned Chief Justice. The learned Judge cannot simply say "with due respect, I do not agree to the ratio..." or "the decision is per incuriam as a binding judgment of the Supreme Court has not been considered.." and proceed to take a contrary view as done in the impugned order. Such an approach would result in conflicting opinions of Co-ordinate Benches, resulting in judicial chaos and is, thus, improper. This is something atrocious and unacceptable.
82. We may remind the High Court of the observations made by this Court in Official Liquidator v. Dayanand and Others reported in (2008) 10 SCC 1. In this decision, this Court has emphasised the adherence to basics of judicial discipline and the need for predictability and a certainty in law. In that context, certain earlier judgments have been referred to as to whether one Bench of the Court not following the view of another Co-ordinate Bench has been commented upon as under:
"78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia v. Administrator General of Page 9 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined W.B. [AIR 1960 SC 936 : (1960) 3 SCR 578] this Court observed : (AIR p. 941, para 19) "19. . If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court." (emphasis added)
79. In Lala Shri Bhagwan v. Ram Chand [AIR 1965 SC 1767] Gajendragadkar, C.J. observed : (AIR p. 1773, para
18) "18. . It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself."Page 10 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024
NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined xxx xxx xxx
82. In Vijay Laxmi Sadho (Dr.) v. Jagdish [(2001) 2 SCC 247] this Court considered whether the learned Single Judge of the Madhya Pradesh High Court could ignore the judgment of a coordinate Bench on the same issue and held :
(SCC p. 256, para 33) "33. As the learned Single Judge was not in agreement with the view expressed in Devilal case [Devilal v. Kinkar Narmada Prasad, Election Petition No. 9 of 1980 (MP)] it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that the said course was not followed. It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of 'different arguments' or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs."
xxx xxx xxx
90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last Page 11 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law." (Emphasis supplied) We need to add nothing more in this context."
10.3 Considering the law reiterated by the Hon'ble Supreme Court as above, it appears that possibly it is for the said reason that upon a challenge to the decision of Ghanshyam Jashwantlal Raval (supra), by the petitioner, a Division Bench of this Court vide decision dated 21.07.2019 in Letters Patent Appeal No. 1414 of 2009, while directing the party to avail alternative remedy before the appellate authority against Page 12 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined the order under challenge has further observed that "...we are inclined to set aside the observations and findings of the learned Single Judge." Thus, the observations being set aside by the Division Bench of this Court, the decision in case of Ghanshyam Jashwantlal Raval (supra), were not good law and are not available to be cited, after order of the Division Bench.
11. Insofar as the issue on merits is concerned, it would clearly appear that the same is more or less covered by decision of the learned Co- ordinate Bench in case of Dipakbhai Manilal Patel (supra), and whereas this Court has also noticed the fact that the said decision is consistently being relied upon by learned Co-ordinate Benches in situation like the present. In case of Dipakbhai Manilal Patel (supra), the learned Co-ordinate Bench has at Paragraphs No. 4, 5 and 6 observed as thus :
"5. If the provisions of Section 52 read with aforesaid amendment for Gujarat State are considered, the principles of lis pendens would apply to a transaction if entered after institution of Suit only, if such notice of lis pendens is registered under the Indian Registration Act, 1908 and as per the provisions of the amendment, the notice of pendency of the suit should contain the details as per subsection 2 of the amendment in Section 52, which is applicable to the Gujarat State. The essential purpose of the aforesaid amendment is to see that any person who may be interested to purchase the property when undertakes the title search of the property with the sub-registrar, the person concerned would be put Page 13 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined to notice that a particular suit is pending before the competent Court and therefore, he may not be misguided or if with conscious knowledge, the person concerned has purchased the property, the purchaser may not be in a position to contend that he was not aware about the pendency of the litigation and consequently, the Suit may not be frustrated or the principles of lis pendens can have its full effect as per the provisions of Transfer of Properties Act.
6. Therefore, it appears that the stand of the Mamlatdar that such documents is not as per the provisions of the Transfer of the Properties Act is not correct and once a registered document is there, pertaining to the property in question, it is required for the Mamlatdar to enter the same in the revenue record of the Government. Of course, after undertaking the procedure, as may be required under the Bombay Land Revenue Code or other relevant law of giving notice to the affected party and thereafter to mutate the entry.
7. In view of the aforesaid, the order dated 19.07.2006 passed by Mamlatdar (Annexure-C) is quashed and set aside with the direction that Mamlatdar shall treat the document as valid as per the provisions of the Transfer of Properties Act read with the provisions of India Registration Act and shall further proceed in accordance with law for entering the same in the relevant record after undergoing the procedure as required under the Bombay Land Revenue Code read with the provisions of Gujarat Land Revenue Rules."
11.1 Appreciating the observations, it would clearly appear that the learned Co-ordinate Bench after referring to Section 52 of the Transfer of Properties Act, has inter alia stated that once a registered document is presented before the Mamlatdar, pertaining to the property in question, more particularly with regard to a lis i.e. a litigation with regard to property in question, then the Mamlatdar is required to enter the details of Page 14 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined the registered document in the revenue record. It also appears that the learned Co-ordinate Bench has also enumerated the procedural safeguards which would be required to be undertaken by the Mamlatdar before mutating details about the registered document in the revenue record. That the Mamlatdar, before mutating the document as regards the litigation in the revenue record, is required to undertake the exercise of finding out whether the details as per Section 52 (2) (a) to (e) have been specifically mentioned in the document in question. The Mamlatdar is also required to give notice to the affected party before mutating the details in the revenue record. The purpose of giving the notice, to this Court, appears to ascertain the requirements in Section 52 to find out whether (i) the suit or proceedings are collusive or not and (ii) whether the litigation is with regard to a right in the immovable property, directly and specifically.
11.2 Upon the Mamlatdar giving notice to the affected party and satisfying himself on the above two aspects, the Mamlatdar is thereafter required to mutate the details about the document in question in the revenue record which is in turn with regard to the litigation as regards the property in question.
12. Furthermore, insofar as the submissions made by learned AGP Mr. Page 15 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined Shah as regards the decision of the High Court of Bombay in case of Pramod Moreshwar Tattu (supra), to this Court, it would appear that the said decision was in view of a Circular of the Maharashtra Government dated 21.09.2017, whereby the State had come up with a policy that there shall not be any entry with regard to lis pendens in the revenue record. To this Court, it would appear that there is no pari materia policy of the State Government, rather a perusal of Circular of the State Government dated 30.05.2022 reveals that while the State Government states that there is no provision in the Land Revenue Code for mutating an entry with regard to lis pendens, yet, the State is of the opinion that upon an order passed by a judicial court, the revenue authority shall mutate the details with regard to lis pendens in the revenue record. To this Court, it would appear that the decision of the High Court of Bombay, was in a different set of facts and whereas it would also clearly appear that insofar as the issue in question is concerned, this Court is bound by view taken by learned Co-ordinate Benchs of this Court and whereas the decision of the High Court of Bombay, albeit of a Division Bench, would not be binding on this Court. Furthermore, insofar as the submission that the decision of the High Court of Bombay, was confirmed by the Hon'ble Apex Court, it would appear that the Hon'ble Supreme Court had dismissed the SLP and whereas in view of law laid Page 16 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined down by the Hon'ble Supreme Court in case of Kunhayammed and Others Vs. State of Kerala and Another, reported in (2000) 6 SCC 359, simpliciter dismissal of an SLP would not be treated as a binding precedent. Paragraph No. 44(iv) of the decision of the Hon'ble Supreme Court being relevant for the present purpose is quoted hereinbelow for benefit.
"44(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed."
13. Having regard to the observations and discussion hereinabove, more particularly relying upon the decision of the learned Co-ordinate Bench in case of Dipakbhai Manilal Patel (supra) and further referring to the decisions of learned Co-ordinate Benches in case of Daxaben W/o Maheshbhai Thakor D/o Dilipji Popatji Thakor (supra), in Special Civil Application No. 21938 of 2023 and in Special Civil Application No. 13930 of 2023, to this Court, the present petition is required to be allowed and is hereby allowed whereas the impugned order dated 15.07.2024 passed by the City Mamlatdar is hereby quashed and set aside. The Mamlatdar, after verifying the registered document with regard to the lis Page 17 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024 NEUTRAL CITATION C/SCA/11047/2024 JUDGMENT DATED: 07/10/2024 undefined and after following procedure as enumerated above, if is satisfied as regards aspects (i) and (ii) as enumerated hereinabove at Para 11.1, shall mutate the details as regards the document in question in the revenue record.
14. With the above observations and directions, the present petition stands disposed of as allowed.
(NIKHIL S. KARIEL,J) BDSONGARA Page 18 of 18 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:05:15 IST 2024