Maintainability of the writ petition filed fopr the same relief as filed in civil suit.

Srinivasan, J.

1. This writ petition is for issue of mandamus for bearing the respondents from using the school and play ground specified in Rajeswari Nagar lay out in Survey No. 38 of Karambakkam village, Chengalpattu District for purposes other than for children and recreational activities of individuals.

2. According to the affidavit of the Secretary of the petitioner-Association, filed in support of the petition, the members of the Association purchased house sites in Survey No. 38, Karambakkam village and constructed houses thereon. The lay out for Rajeswari Nagar was approved by the Director of Town Planning in his L.P.D.M./ D.D.T.P.No. 57/72. Some space was reserved in the lay out for the purpose of running a school and for play ground. It is alleged that in 1980, a small building was constructed by the Panchayat and the authorities concerned assured the residents of the locality that the space would not be used for any purpose other than school and play ground. It is expressly stated that the petitioner has no objection for the building on the land being used as Balwadi (children centre). It is further alleged in the affidavit that the Panchayat Board is holding its meetings in the building on the land and it is contrary to the purpose for which the land was reserved in the lay out. On the ground that the Panchayat is using the space for a different purpose, other than a school for which it was reserved, the petitioner has filed the writ petition for the relief already set out.

3. In the counter-affidavit filed by the first respondent, namely, Madras Metropolitan Development Authority, it is stated that the land cannot be used for any purpose other than the one which was indicated in the lay out plan. According to the said counter affidavit, the Panchayat has not obtained the sanction from the Madras Metropolitan Development Authority and therefore, not entitled to use the place for any other purpose.

4. The third respondent, namely, Commissioner, Villivakkam Panchayat Union, has filed a counter affidavit. In the counter affidavit, he has referred to the suit O.S.No. 328 of 1984 on the file of the District Munciff's Court, Poonamallee, filed by the Secretary of the Association. He has further stated in the counter that an application was filed in the suit in I.A.No. 312 of 1984 seeking an injunction restraining the Panchayat from constructing on and using the play ground. As there was no interim order in that application, the present writ petition has been filed by the petitioner. It is stated that the writ petition is not maintainable, as the petitioner has suppressed the factum of filing the suit. It is further averred in the counter affidavit that the Panchayat is in possession of the land and had constructed the Panchayat's office in 1980. It is stated that the office of the Panchayat is functioning in the building from 23-10-1981. it is stated further in the counter affidavit that the user of the building for the office of the Panchayat is not different from the use for which the land was reserved in the master plan approved by the M.M.D.A. in 1975. Reference is also made to the withdrawal of the suit on a date later to the filing of the writ petition, with liberty to file a fresh suit on the same cause of action.

5. Learned Counsel for the petitioner places reliance on the Tamil Nadu Panchayats Buildings Rules, 1970. Under Rule 3, when an application for approval of lay out of house sites is made, the owner of the land shall submit a letter of consent regarding the land required for streets, lanes and pathway in favour of the Executive Authority authorising him for making the said streets, lanes and pathways. Rule 18 provides for common amenities. Under Clause 4, facilities such as shops, recreation centre, community hall and library shall be provided in accordance with the Development Fund Rules on the following standards, namely, for every 100 persons, there shall be at least one shop and for every 1000 persons