http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: SH. MAYANK RASTOGI

       Vs.

RESPONDENT: SH. V K BANSAL & OSRS.

DATE OF JUDGMENT:       05/01/1998

BENCH: B.N. KIRPAL, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT: (with civil Appears No.22/98 arising out of SLP (C) 17234 of 1997                       J U D G M E N T Kirpal, J.      SLP (c) 13908 of 1997      Special leave granted.      We have heard learned counsel for the parties.      The short  question which  arises for  consideration is whether the high Court was right in coming to the conclusion that a plot of land which had been allotted to the appellant could not have been converted to a residential plot on which construction could be made inasmuch as it was meant to be an open space.      The proceeding  before the High Court were initiated on a writ  petition being  filed by  the respondent as a public Interest  Litigation,   inter  alia,   contending  that  the respondent had purchased a plot of land on the understanding that the  plot in  question in the present appeal was really an  open   space  adjoining  a  kinder  garten  school.  The respondent found in 1995 that the appellant was constructing a house  and thereupon a writ petition was filed in the High Court which  issued notice and on 8th of March, 1995 granted stay of  further construction.  The  High  Court  ultimately allowed the writ petition and came to the conclusion that in as much  as the  plot in  question was  earmarked as an open area adjoining  a school  it could  not have  been converted into a  residential plot  without following  an  appropriate procedure.      On behalf  of the  appellant, our  attention  has  been drawn to  a Notification  No. 16(6)  - 87  - XXXII - I dated 15th February,  19941 issued  under Section  19(1) of Madhya Pradesh Nagar  Tatha Gram  Nivesh  Adhinayam,  1973  whereby Development plan of the area in question was approved. It is not  in  dispute  that  as  per  this  Notification  in  the Development Plan  the plot  in question,  purchased  by  the appellant, was  shown as a residential plot. Of course, this area had  earlier been  earmarked as  an open  space but  by virtue  of  the  Development  Plan,  now  approved  on  15th February, 1991, the change of user had occurred.      The respondent  in the writ petition, filed in the High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

Court,  had   not  challenged   this  Notification  of  15th February, 1991.  The High Court, in turn, also did not quash this  Notification.   There  being   no  challenge  to  this Notification, the  Development Plan  which was  so  approved become  final.   The  land   use  which  was  shown  in  the Development plan  not having  been challenged,  we  fail  to appreciate as  to how the High Court could have ignored this fact and  come to  a contrary  conclusion. The appellant had purchased  this   plot  of  land  in  April,  1991  and  had admittedly started  construction in  January, 1995. The writ petition was  filed nearly  four years after the approval of the Development  plan vide Notification dated 15th February, 1991 and apart from the questions of laches, even on merits, there was  no reason  for the  High Court to have interfered when  the  residential  plot  shown  in  the  duly  approved Development plan  had been allotted as a residential plot to the appellant  and was  used for  constructing a residential unit therein.  Merely because  at an  earlier point  of time when the  respondent had constructed his house this plot had been shown  as an  open space  cannot give  a right  to  the respondent to ask the High Court to prevent the construction on that area when the respondent has chosen not to challenge the change in the land use from open space to residential as per the approved plan. On this ground alone, in our opinion, the writ  petition filed  by the respondent should have been dismissed. For the aforesaid reasons, the appeal is allowed. The judgement  of the  High Court  is set aside and the writ petition filed  by the  respondent is dismissed. There will, however, be no order as to costs.      SLP (C) 17234 of 1997      Leave granted.      For the  reasons stated in our judgment in civil appeal arising out  of SLP(C)  13908 of  1997, this  appeal is also allowed. There will, however be no order as to costs.