Karnataka High Court
Sri M R Govindraju vs State Of Karnataka on 25 May, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MAY 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.38600/2017 (BDA)
BETWEEN :
1. SRI M. R. GOVINDRAJU
S/O LATE RAMAIAH
AGED ABOUT 60 YEARS,
2. SRI R. LAKSHMINARAYAN
S/O LATE RAMAIAH
AGED ABOUT 49 YEARS,
3. SRI R PRAKASH
S/O LATE RAMAIAH
AGED ABOUT 45 YEARS,
PETITIONERS 1 TO 3 ARE
RESIDING AT NO 31
RESERVOIR STREET BASAVANAGUDI
BANGALORE - 560 004.
REPRESENTED BY THEIR GPA HOLDER
MR VASUDEVAN C
S/O CHINNASWAMY
R/AT NO 263,
SWAMIVIVEKANANDA ROAD,
THYAGARAJANAGAR
2ND BLOCK, BANGALORE - 28.
2
4. BHARATHI RAMAPPA ELIGAR,
D/O RAMAPPA ELIGAR,
AGED ABOUT 44 YEARS
R/AT NO.18/6/1, 6TH CROSS
7TH MAIN , BALAJI LAYOUT,
PADMANABHANAGAR,
BANGALORE - 70. ... PETITIONERS
(BY SRI. JAYAKUMAR.S. PATIL, SENIOR ADVOCATE AND
SRI. K. SHASHIKIRAN SHETTY, SENIOR ADVOCATE FOR
SRI. SOMASEKHARA K H, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
TO GOVERNMENT DEPARTMENT OF
HOUSING & URBAN DEVELOPMENT
BANGALORE - 1.
2. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD,
KUMARA PARK WEST
BANGALORE - 20.
3. SRI P V JAYAPRAKASH
S/O LATE POTARE VENKATAPATHY
AGED ABOUT 65 YEARS
R/AT NO 1932, 3RD A MAIN ROAD,
VIJAYANAGAR, 2ND STAGE,
R P C LAYOUT BANGALORE - 40.
4. SRI P V BALACHANDRA
S/O LATE POTARE VENKATAPATHY
AGED ABOUT 56 YEARS
R/AT NO 1932, 3RD A MAIN ROAD,
VIJAYANAGAR, 2ND STAGE,
3
R P C LAYOUT,
BANGALORE - 40.
... RESPONDENTS
(BY SRI.C. N. MAHADESHWARA, AGA FOR R1;
SRI. ASHWIN S. HALADY, ADVOCATE FOR R2;
SRI. Y.R. SADASHIVA REDDY, SENIOR ADVOCATE FOR
SRI. RAHUL S. REDDY, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 PRAYING TO QUASH THE ORDER DATED
7.11.2016 ISSUED BY R-2 BDA, GRANTING PERMISSION
TO RE-CONVEY SITE NO.3944-J IN FAVOUR OF THE R-3 &
4 WHICH BELONGS TO PETITIONERS, CONSEQUENTLY
DECLARE THE SALE DEED DATED 3.2.2017 EXECUTED
BY R-2 IN FAVOUR OF R-3 & 4 IN PURSUANCE OF ORDER
DATED 7.11.2016 IS NULL AND VOID AND NOT BINDING
ON THE PETITIONERS VIDE ANNEXURES-A & B.
THIS PETITION HAVING BEEN HEARD AND
RESERVED ON 22.04.2022 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THIS COURT
MADE THE FOLLOWING:
ORDER
The petitioners, in seeking the following relief/s, seek vindication of their exclusive rights to the property measuring east to west 21 feet and north to south 54 in 4 Sy. No.43 of Yedeyuru, BSK II Stage, Bengaluru1 [the subject property]. The petitioners have sought for the following reliefs:
[i] for quashing the order dated 07.11.2016 issued by the Commissioner, Bangalore Development Authority [the second respondent and hereafter referred to as the BDA] permitting re-conveyance of the subject property in favour of the third and the fourth respondents;
[ii] for declaration that the sale deed dated 03.02.2017 executed by the BDA in favour of the third and the fourth respondents is null and void and not binding on the petitioners, and [iii] for direction to the second respondent to consider the petitioners' representation [Annexure-N] and confirm the allotment of 1 The petitioners assert that this property is assigned Khata No.3944/C-1 by the BBMP while the contesting respondents [including the BDA-the second respondent] claim that this property is assigned Katha No.3944/J. 5 the subject property in favour of the first to third petitioners.
The first to third petitioners are the grandchildren of one, Smt. Munithirumalamma, who admittedly owned land measuring 1 acre 20 Guntas in Yedeyuru Village, Uttarahalli Hobli, Bangalore South taluk (subject land). The fourth petitioner claims rights to the subject property under the other petitioners.
2. The petitioners assert rights to the subject property under the judgment and decree in the original proceedings in OS No. 5171/1980 which is confirmed in appeal by this Court. The first to third petitioners' Power of Attorney, Sri Vasudevan C, has transferred the subject property in favour of Sri Fakeer Nagappa Savanoor under the sale deed dated 28.05.2015. Sri Fakeer Nagappa Savanoor in turn has transferred the subject property in favour of the fourth petitioner under the sale deed dated 07.07.2017. On the other hand, the 6 fourth and the fifth respondents stake claim to the subject property under the impugned sale deed dated 03.02.2017 executed in their favour by the BDA.
3. The petitioners' case is that the subject land was notified in the year 1963 for acquisition by the City Improvement Trust Board [CITB]. Smt. Munithiurmalamma, who had transferred certain portions of the subject land as revenue sites, submitted her application dated 10.10.1963 requesting the CITB to re-convey the portion retained by her. In the year 1976, the BDA called for applications for re-conveyance of revenue sites in acquired lands, including the subject property. Smt. Munithirumalamma, again filed an application requesting for allotment/reconveyance of the extent measuring 26 feet on the southern side, and 129 feet of the northern side and east-west 172 feet. The BDA by its letter in No.BDA/Revenue Site/E(s) 4175/76-77, communicated its willingness to re-convey 7 the aforesaid extent in favour of Smt. Munithirumalamma and thereafter, she also filed an affidavit pursuant to this Communication. Smt. Munithirumalamma retained ownership of the subject property, a smaller extent, because it comprised of a dwelling place, and she continued in possession thereof during her lifetime.
4. The petitioners assert that as the BDA did not complete the reconveyance for the subject property, Smt. Munithirumalamma's only son, Sri Ramaiah was constrained to initiate suit in OS No. 5171/1980 on the file of the III Additional City Civil Judge, Bangalore for declaration that he is entitled for ownership of the property measuring 26 feet of the southern side, 129 feet on the northern side, and 172 feet east-west, and for a direction to the BDA to allot site and deliver possession in law. On the demise of Sri. Ramaiah, his sons and legal heirs, the first to third petitioners, have 8 continued the suit in O.S. No. 5171/1980. Ultimately, this suit is decreed on 20.11.1991 declaring that these petitioners are entitled to allotment from the BDA. The BDA has called in question this judgment and decree dated 20.11.1991 before this Court in RFA No. 206/1992, but the appeal is dismissed on merits on 03.11.1999 with certain directions to the BDA.
5. The petitioners have also referred to allotment of a site bearing No.228, measuring 50 feet x 80 feet, 9th Phase, VII Block, J.P. Nagar, Bengaluru in favour of Sri Ramaiah and his refusal to accept such allotment. However, Sri. Jaykumar S Patil, the learned Senior Counsel, on instructions from the standing counsel on record for the first to third petitioners, submits that the pleadings in this regard is as ascertained by the petitioners in terms of the office note prepared by the BDA to facilitate execution of the impugned sale deed dated 03.02.2017 in favour of the 9 third and the fourth respondents. Neither the first to third petitioners nor their father, Sri Ramaiah, was offered any site and they had no occasion to refuse the same.
6. The third and the fourth respondents in their statement of objections assert that Smt. Munithirumalamma, who purchased the subject land as two parcels of lands [one measuring 1 acre 13 Guntas and another measuring 7 Guntas] under the sale deed dated 12.10.1958, has formed a private layout, and she has transferred a site measuring east to west 20 feet and north to south 100 feet in favour of their mother, Smt.Kantharathnamma, under the sale deed dated 08.01.1961. The CITB has issued notifications for acquisition of the subject land after the sites were formed, and the BDA, following a detailed enquiry conducted by the Superintendent of Police, BDA, has reconveyed the subject property in their favour. The 10 boundaries of the subject property as claimed by the petitioners and them are different, and the property as described by the petitioners does not exist. The BDA has put them in possession of the subject property, and they have not only got the Khata for the subject property in their favour with the BBMP but they have also obtained certain permissions from BWSSB for digging tube-well in the subject property.
7. The BDA has filed its statement of objections placing on record that the subject property is carved out of a larger extent of land measuring 7 acres 25 Guntas in survey No. 43 of Yedyuru Village. This total extent of land is notified for acquisition in the 1967, and possession of the land is taken on 23.10.1967. Smt. Munithirumalamma, who owned 1 acre and 20 Guntas in survey No.43, had developed a revenue layout and conveyed about 18 sites, which totally measures 40,600 Sq.ft, and the petitioners and their brother, who claim 11 under Smt. Munithirumalamma, have transferred different sites which totally measure 15,649 Sq. ft. The details of the remaining extent of 9091 Sq.ft are not available. Notwithstanding this statement, the BDA asserts that Smt. Munithirumalamma and family members have transferred all the sites in the subject land.
8. The BDA has also asserted that the third and the fourth respondents submitted their application on 08.05.2015 for reconveyance of the subject land. The Special Task Force, BDA has conducted a detailed enquiry and submitted its report with observations that the application filed by the third and the fourth respondents corresponds to the subject property [which is described as bearing Sy.No.3944/J as against the petitioners' description of the subject property as bearing Sy.No.3944/C1]; that the first to third petitioners have executed power of attorney for a non- 12 existing site resulting in subsequent transfers; that the BDA has formed a separate site measuring 21 feet x 45 feet in the total extent of 20 feet x 100 feet purchased by Smt.Kantharathnamma from Smt. Munithirumalamma and the BDA has allotted such site measuring 21 feet x 45 feet to another; that after the judgement in RFA No. 206/1992, the remaining extent measuring 20 feet x 60 feet was offered to the first to third petitioners but they refused the offer and thereafter another site in No.228 measuring 50 feet x 80 feet in JP Nagar IX Phase was offered and they have refused even this offer. The subject property has been reconveyed to the third and fourth respondents in the light of the said report and the Board's resolution dated 25.06.2007.
9. Sri Jayakumar S Patil and Sri Shashi Kiran Shetty, learned Senior Counsels for the petitioners, have argued relying upon the petitioners' case as summarized above and emphasizing that the fourth respondent has 13 purchased the subject property for a value of Rs.1,20,00,000/- and has availed loan of Rs.97,00,000/-, but the BDA has executed sale deed dated 03.02.2017 for a paltry sum of Rs.1,92,497/-. They argue that this indisputable fact and the fact that the BDA cannot establish that the petitioners were issued with any notice of offer to allot site measuring 20 feet x 60 feet or site in No.228 in J.P. Nagar IX phase, demonstrate that the BDA, for reasons extraneous, has contrived proceedings and conclusions to facilitate transfer of the subject property in favour of the third and the fourth respondents.
10. The learned Senior Counsels also point out that according to the respondents, Smt.Kantharathnamma purchased 20 feet x 100 feet from Smt. Munithirumalamma in the year 1961 and therefore, the third and fourth respondents, who are her children, would be entitled for reconveyance of the 14 subject property, but neither the BDA nor the third and fourth respondents have placed any circumstance that would justify inaction of the third and fourth respondents, or Smt.Kantharathnamma, in seeking reconveyance/transfer of the subject property for over decades. They assert that in these circumstances, and the fact that the petitioners' rights stand crystallized with the decree in O.S. No.5171/1980 [as confirmed in RFA No. 206/1992] and the undertaking by the BDA in the subsequent proceedings in Review Petition No. 79/2008 c/w CRP No. 2996/20032, the BDA will have to favourably consider the representation dated 16.08.2017 [Annexure-N] and the sale deed dated 03.02.2017 will have to yield. The petitioners in 2 The BDA, after the dismissal of the RFA No. 206/1992, has filed Review Petition No.79/2008 for review of the judgment in the said appeal and also impugned the order dated 25.08.2003 in execution Case No.738/2002 commenced by the first to third petitioners after the dismissal of the aforesaid appeal. These review and revision petitions are disposed of on 13.03.2009 recording submissions by the BDA and the learned counsel for the respondents as regards the allotment of site No. 228 of J.P. Nagar IX phase to the first to third petitioners to satisfy the judgment and decree in O.S. No. 5171/1980.
15Annexure- N have inter alia sought for reconveyance of the subject property in favour of the fourth petitioner consequent to the sale deed dated 07.07.2017.
11. Sri Y Sadashiva Reddy, the learned Senior Counsel for the third and fourth respondents, contends that the petitioners, who do not dispute that Smt.Kantharathnamma has purchased a revenue site from Smt. Munithirumalamma in the year 1961, cannot dispute these respondents' right to the subject property. The petitioners themselves claim reconveyance based on prior ownership. Smt. Munithirumalamma, her son, Sri Ramaiah, and the petitioners have transferred the entire extent of 1 acre 20 Guntas in Survey No.43 - the subject property - as ascertained by the BDA in the enquiry, and if they have transferred the entire extent as revenue sites, the petitioners cannot have any claim over the subject property, and especially when they are not in possession.
16
12. Sri Y. Sadashiva Reddy also argues that notwithstanding Sri. Jayakumar S Patil's submissions that the assertions in paragraph-5 of the writ petition are based on the information secured by the petitioners after the impugned sale deed dated 03.02.2017, the petitioners cannot get over the fact that their rights under the decree in O.S. No.5171/1980 stand extinguished with the first to third petitioners' refusal to accept the offer by the BDA to allot alternative sites. The third and fourth respondents have diligently pursued their application for transfer based on the sale deed dated 08.01.1961 and the layout developed by the BDA. Therefore, this Court must neither intervene nor grant any relief to the petitioners.
13. Sri. Ashwin S Halady, the learned counsel for the BDA, who argues in support of the conveyance in favour of the third and fourth respondents under the 17 impugned sale deed dated 03.02.2017, relies upon the enquiry report filed by the STF, BDA. The learned counsel was called upon by this Court to place on record the basis for determination of the sale value by the BDA for conveyance of the subject property in favour of the third and fourth respondents. The learned counsel has placed on record Board's Resolution in No.28 of 2016 to contend that the sale consideration is at the rate of Rs.1730/- per square metre which would be the cost of formation of layout per square metre.
14. At this stage, this Court must also record that by order dated 24.09.2019 the learned counsel for the BDA was called upon to place on record documents such as revenue sites layout plan and the layout plan prepared by the BDA for identification of the subject property. However, no document is placed on record in this regard. Further, this Court on 28.03.2022, called upon the learned counsel for the BDA to place on record 18 materials to substantiate its case that the first to third petitioners were issued with notice to accept the offer of allotment of site measuring 20 feet x 60 feet and another site bearing No. 228 in J.P. Nagar IX phase. The BDA has not placed any material on record even in this regard.
15. In the light of the afore mentioned, the question that arises for consideration is:
Whether the impugned sale deed dated 03.02.2017 executed by the BDA in favour of the third and fourth respondents must be quashed and the BDA be directed to consider their representations as per Annexure - N.
16. The petitioners' claim for reconveyance based on the previous ownership of certain extent in the land in survey No. 43 of Yedeyuru Village - the subject property - even after transfer of substantial revenue sites, is considered in O.S. No. 5171/1980. The civil 19 Court in its judgment dated 20.11.1991 has examined the petitioners' claim in the light of the CITB's stand that it had agreed to allot to Smt. Munithirumalamma an extent measuring 129 feet x 172 feet in the subject land. The civil Court has decreed the suit holding that the petitioners would be entitled, "to get a site allotted from the defendant - BDA and to get possession of the same".
17. This Court has confirmed the civil Court's judgment in dismissing the BDA's appeal in RFA No. 206/1992. In fact, the appeal is dismissed on 03.11.1999 with a direction to BDA "to allot the site in favour of the respondents within a period of 3 months from the date of receipt of the certified copy of this judgment". After this Court's judgment in RFA 206/1992, the first to third petitioners, and their brother, Sri M.R. Tukaram, have initiated contempt proceedings in CCC No. 2353/2000 and later filed an 20 execution petition in Execution Case No.738/2002. The BDA, on the other hand, has filed Review Petition in No. 79/2008 and a Civil Revision Petition in CRP No. 2996/2003 calling in question one of the orders in Execution Case No. 738/2002.
18. The contempt proceedings and the aforesaid petitions are disposed of on 13.03.2000 and 13.03.2009 respectively. The contempt proceedings stand disposed of as withdrawn because of a settlement. The review and revision petitions stand disposed of recording the terms of the affidavit filed by a Deputy Secretary from BDA and the submissions by the learned counsels. The order dated 13.03.2009 in Review Petition No. 79/2008 and CRP No. 2996/2003 read as under:
"Though the controversy is in relation to allotment of site in pursuance of a decree, in view of the subsequent development several applications were filed. However, now the authority has filed an affidavit sworn to by one Balachandra S/o 21 Nanjunde Gowda, a Deputy Secretary II (West Division) inter alia stating that:
'Para 2: site No. 228 JP Nagar 9th Stage, 7th Block, Bengaluru, measuring 50' x 80' has been allotted in favour the respondents by allotment letter dated 23.02.2001 in pursuance of the order passed in RFA No.206/1992 dated 3.11.1999 and after the filing of CCC No. 2353/2000. The concerned Asst. Executive Engineer No.1, Project Sub-division (South), BDA has after a spot inspection has reported on 16.02.2009 that the site is vacant. I have verified the register and found that the site is available for allotment and has not been allotted to any other person. The copies of the allotment letter dated 23.2.2001 and the Tippani an enclosed to the Affidavit and marked as Annexures R1 and R2 respectively for kind perusal of this Hon'ble court.'
2. After filing this affidavit, learned counsel for the respondent submitted that, the said site is not vacant, it is not ready and there are no amenities and also stated that, it is a barren land.
3. In this regard, again learned counsel for the petitioner was called upon to verify and make submission. Learned counsel for the petitioner has 22 filed a memo dated 13.3.2009 inter alia stating that, the water and other amenities have been provided to the layout in question and it is for the respondent to apply for connection from the main pipelines at his cost. In view of the memo, the apprehension of the respondent does not survive.
4. Learned counsel for the respondents submits that, the affidavit and the memo be taken on record and in accordance with the affidavit and memo, a direction be issued to the petitioner authority to issue appropriate endorsement, allotment letter and all consequential documents.
5. Petitioner authority is directed to take steps in accordance with law for allotment of site agreed to between the parties in terms of the affidavit and memo filed before this Court and also fulfil all the requirements under the provisions of BDA Act."
19. It thus emerges that as of 13.03.2009, there was an agreement between the BDA and the petitioners, and their brother, Sri M.R. Tukaram, for allotment of site No. 228, measuring 50' x 80', J.P. Nagar IX Stage, 7th Block, Bengaluru in lieu of reconveyance/allotment 23 of a site in the land in survey No. 43 of Yedeyuru Village, Bangalore South Taluk. This Court must consider whether the BDA, after this agreement, has acted reasonably in executing the impugned sale deed dated 03.02.2017 for the subject property in favour of the third and fourth respondents.
20. The Hon'ble Supreme Court in ABL International Ltd. & Anr v. Export Credit Guarantee Corporation Ltd3 has held:
"However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the 3 (2004)3 SCC 553 24 exercise of this power [See: Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors. [1998(8) SCC 1]. And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the court thinks it necessary to exercise the said jurisdiction.
This enunciation has also been recently reiterated in Unitech Limited and Others v. Telangana State Industrial Infrastructure Corporation (TSIIC) and Others4 thus:
"Therefore, while exercising its jurisdiction under Article 226, the Court is entitled to enquire into whether the action of the State or its instrumentalities is arbitrary or unfair and in consequence, in violation of Article 14. The jurisdiction under Article 226 is a valuable 4 2021 SCC OnLine SC 99 25 constitutional safeguard against an arbitrary exercise of state power or a misuse of authority. In determining as to whether the jurisdiction should be exercised in a contractual dispute, the Court must, undoubtedly eschew, disputed questions of fact which would depend upon an evidentiary determination requiring a trial. But equally, it is well-settled that the jurisdiction under Article 226 cannot be ousted only on the basis that the dispute pertains to the contractual arena. This is for the simple reason that the State and its instrumentalities are not exempt from the duty to act fairly merely because in their business dealings they have entered into the realm of contract."
21. In the present case it would be incumbent upon the BDA, especially after the prolonged litigation and the statement before this Court in the aforesaid review and revision petitions to bring about a just conclusion in a fair and reasonable manner. The BDA has relied heavily upon the STF Report in support of the decision to transfer the subject property under the impugned sale deed dated 03.02.2017 in favour of the 26 third and fourth respondents. The STF Report refers to [a] the Board's Resolution dated 25.06.2007 in No.110/2007 and [b] the petitioners' alleged refusal to take the allotment of this site No.228 J.P. Nagar IX Phase, 7th Block Bengaluru, measuring 50' x 80' and another alternative site, [c] validity of the power of attorney executed by the first to third petitioners [and their brother Sri. M.R. Tukaram] in favour of Sri Fakeer Nagappa Savanoor after the demise of the brother. However, none of these justify a decision in favour of execution of the sale deed in favour of the third and fourth respondents.
22. The BDA, after the order dated 13.03.2019 in Review Petition No. 79/2008 c/w CRP No. 2996/2003, could not have relied upon the Board's Resolution dated 25.06.2007 in No. 110/2007. If the BDA is so allowed it would tantamount to permitting it to resile from the agreement that is placed on record in 27 the subsequent proceedings emanating from the execution case commenced by the first to third petitioners, and their brother, after the dismissal of the appeal in RFA 206/1992. If the merit of the decision to re-convey/transfer the subject property in favour of the third and fourth respondents is examined on the strength of the aforesaid Resolution, the decision to re-convey/transfer the subject property in favour of the third and fourth respondents would be unreasonable and arbitrary.
23. As regards the other reason for the BDA's decision to convey/transfer the subject property in favour of the third and fourth respondents [the alleged refusal of the allotment of site No.228, JP Nagar IX Phase, 7th Block Bengaluru, measuring 50' x 80' and another alternative site by the first to third petitioners], it would be just and reasonable for this Court to opine that the BDA must demonstrate that the first to third 28 petitioners have refused the sites offered acting in terms of the directions in the order dated 13.03.2019, and there is consequential waiver of their rights. Though it is vehemently argued that the first to third petitioners have refused the allotment of the two sites, no document is placed on record to establish that the notice was indeed issued to these petitioners to accept the offer or that these petitioners have refused such offer. Because the BDA has failed to establish these material circumstances, the decision to execute the impugned sale deed dated 03.02.2017 will be without due notice to the petitioners and therefore, in violation of law.
24. The BDA has further opined that the power of attorney executed by the first to third petitioners and their brother, Sri. M.R. Tukaram, stood terminated with the death of the brother and the power of attorney could not have been used to cause the sale deed dated 29 28.05.2015 in favour of Sri Fakeer Nagappa Savanoor. However, again there is nothing on record to establish that this question is decided with due opportunity to the petitioners and in the light of the provisions of Section 202 of the Indian Contract Act, 1872 and the judicial decisions in this regard. The fact that neither the first to third petitioners nor the legal heirs of Sri. M.R. Tukaram dispute the power of attorney should also be considered. Lastly, the impugned Sale Deed dated 03.02.2017 is intended as a reconveyance for the property conveyed under the sale deed obtained in the year 1961 and on an application filed in this regard in the year 2015. There is delay of multiple decades, and there is no explanation for the delay, and there is no effort to establish the identity and possession of the subject property with reference to layout plans. For these reasons, this Court opines that the decision to execute the impugned sale deed dated 03.02.2017 is 30 arbitrary and unreasonable and hence, in violation of Article 14 of the Constitution of India.
25. While the impugned sale deed dated 03.02.2017 should be quashed for the aforesaid reasons, this Court is also of the considered view that the Commissioner, BDA must also be called upon to extend due opportunity to both the petitioners and the third and fourth respondents and decide on the rival claims over the subject property after taking all measures to identify the subject property and in the light of the undeniable action taken pursuant to order dated 13.03.2009 in Review Petition No. 79/2008 c/w Civil Revision Petition No. 2996/2003. Therefore, the following:
ORDER [a] The writ petition is allowed, and the impugned sale deed dated 03.02.2017 executed by the BDA for the subject 31 property in favour of the third and fourth respondents is quashed;
[b] The Commissioner, BDA is called upon to decide on the rival claims for the subject property between the petitioners and the third and fourth respondents in the light of the order dated 13.03.2009 in Review Petition No. 79/2008 c/w Civil Revision Petition No. 2996/2003 and the action taken pursuant thereto after extending due opportunity. The Commissioner shall also ascertain the identity and possession of the subject property with reference to all material documents including the relevant layout plans;
[c] The petitioners and the third and fourth respondents shall be at liberty to file a 32 representation with the Commissioner, BDA for consideration of the claims as aforesaid within four [4] weeks from the date of receipt of a certified copy of this order;
[d] The Commissioner, BDA shall decide on the rival claims as directed within a period of six [6] months from the date of receipt of the representation as aforesaid.
SD/-
JUDGE nv*