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Judgment
S.S. Subramani, J.—This writ petition is filed for the issuance of writ of mandamus forbearing the first Respondent from acting in any way affecting the Park area earmarked in the plan approved by the third Respondent in proceedings No. Ma. Pa/Va (North Arcot) No. 1/85 dated 1.2.1985 and subjecting the said Park area to any purpose other than the purpose for which it was originally allotted by putting up construction and thus render justice.
In the affidavit filed in support of the writ petition, the Petitioner has stated that he has filed this writ petition on his own behalf and on behalf of other owners of the plot approved by the third Respondent in proceedings stated above. The Petitioner claims to be the owner of plot numbers 1, 2, 3 and 4 in the Layout approved by the third Respondent in its proceedings dated 1.2.1985.
The property originally belonged 10 P.D. Vadivelu who applied for a planning permission. Planning permission was given by competent authority for the Layout of plots in Survey No. 646/3-4, 644 part, 647/2. 645 Part, in Tharapadvedu village, North Arcot Ambedkar District. After getting approval, the promoters of the Layout executed sale deeds on 14.2.1985 and registered as document No. 494 to 498 at Sub Register''s Office. Katpadi. The deed including the lay out was handed over to the second Respondent. But the Park area was not handed over to the second Respondent till date and the same continues to be in joint possession, occupation and enjoyment of all the plot owners of the Layout.
The reason for filing this writ petition is that the first Respondent is now attempting to put up a huge water tank in the Park area even though various demands were made to the second Respondent to prevent the first Respondent in pulling up a water tank. If any plot is provided for a park and earmarked for the purpose of Park, the authorities cannot change the object or utility to which it is allotted. As on date, no notice has been given by the Petitioner or other owners of the plot or to the promoters regarding the change of user of the Park area. For the above reasons, the Petitioner wanted that the first Respondent be prevented from putting up any construction.
Even though, the matter came up for admission on 13.2.1997, the learned Judge did not think of issuing interim order. The learned Judge only directed to take an urgent notice returnable by ten days. Nearly 1-1/2 years later, the writ petition has come up for arguments.
On receipt of notice, the second Respondent has filed a counter affidavit. It is stated in the counter affidavit that because it was a vacant site, the same was selected for the construction of a water tank. It is stated that it is not going to affect the development and other facilities in the area. It is further stated that the writ petition is filed to wreak vengeance and with an oblique motive. The Petitioner is running an oil mill close to the Park area and he wanted to extend his oil mill and when the same was prevented, the present writ petition is filed.
In the counter affidavit, they have also justified the action regarding the selection of place where the over-head tank has to be constructed. It is also slated that there arc two Parks in two different places and they arc also maintained by the panchayat in a good manner. They also prayed for dismissal of the writ petition.
It is also staled that the construction of the lank is already over and what remains is only the plastering and if at this stage, the writ petition is allowed, huge amount spent on the construction will become waste, especially when it is a public money.
At the time of argument, learned Counsel for the second Respondent brought to my notice the photographs to prove that the tank has already been constructed and what remains is only plastering. It is clear that the structural work of the water tank might have been completed long before the institution of the writ petition. The Petitioner has not stated anything about the construction and its progress when the writ petition was filed. He only pleaded that the first Respondent has attempted to put up a water tank.
Once the construction is over. I do not think that this Court should direct the first Respondent to demolish the construction already made. After all, the construction of water tank is also a basic need of the inhabitants of the area including the Petitioner. It is for the benefit of the Petitioner and other neighbours the water tank is constructed by the first Respondent.
In a recent decision reported in Mayank Rastogi Vs. V.K. Bansal and Others, an open space was used for residential purpose and the same was challenged before the Madhya Pradesh High Court. The High Court allowed the writ petition and held that the change of user is illegal and necessary direction must be given. The said judgment was challenged before the Hon''ble Supreme Court, wherein it was held that the Petitioner therein will not be entitled to any relief for the laches on his part.
Of course, in that case one more reason was mentioned, i.e. Planning Authority has already given permission for change of user. But their Lordships further held that apart from the laches even on merits the High Court has refused to exercise its jurisdiction.
In this case, the construction of the water tank was going on for years together and the construction was mostly completed. The extraordinary original jurisdiction cannot be exercised in such cases where the Petitioner is guilty of laches.
It is further submitted by the learned Counsel for the second Respondent that out of the area that is earmarked, only 5 cents have been accommodated for the construction of water tank and the remaining area will be more than sufficient to be used as a park and it is also assured that the remaining portion will be retained as such and will be used only as a park.
Learned Counsel for the Petitioner submitted that even though it is earmarked for a Part, till it is taken over by the Local Authority, he will continue to be the owner along with other plot owners and without his consent, the property cannot be taken over by the panchayat or Water Board or by the Local Planning Authority. Learned Counsel reiterated on the decision reported in Pt. Chet Ram Vashist (Dead) by Lrs. Vs. Municipal Corporation of Delhi, , for the purpose that unless there is transfer of land. i.e. unless the ownership is transferred, the Corporation is not entitled to exercise any right over the same nor it can change the user.
It is stated that there are certain observations in favour of the Petitioner. But, it may also be noted that their Lordships said in the very same judgment that ''reserving any site for any street, open space. Park, school, etc. in a Layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it.''
On the basis of this decision, it is clear that the second Respondent herein holds live property for the benefit of inhabitants of various plots. It has entrusted the work to the Water Board for constructing water tank. It is also for the benefit of the inhabitants of the various plots, which is also for the benefit of the public.
The only direction that could be given in this case is that, the Respondents 1 and 2 will take expeditious steps to get the land transferred in its favour after paying the market price at the prevalent rate and to take necessary action in that behalf without further delay. I make it clear that Respondents 1 and 2 are bound to take steps and initiate proceedings for the fixation of the market value for the area reserved as a park area, within a period of six months from today. The assurance given by the second Respondent that the remaining area shall be retained as a Park is also recorded and Respondents 1 and 2 are prohibited from changing the user of that area for any other purpose.
The writ petition is disposed of accordingly. No costs. Consequently, the connected W.M.P. is closed.