Hans Realcon Pvt.Ltd. Through Director Arun Gupta vs Indore Municipal Corporation
- Court
- Madhya Pradesh High Court
NEUTRAL CITATION NO. 2026:MPHC-IND:31091
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
nd
ON THE 2 OF NOVEMBER, 2026
WRIT PETITION No. 21600 of 2025
CNR No.: MPHC020216032025
HANS REALCON PVT.LTD. THROUGH DIRECTOR ARUN GUPTA
Versus
INDORE MUNICIPAL CORPORATION AND OTHERS
Appearance:
Shri Ashok Kumar Sethi - Senior Advocate with Shri Aayush Gupta -
Advocate for the petitioner
Shri Shantanu Sharma - Advocate for the respondent no.1 and 2/IMC
Shri Sudeep Bhargava - Dy. Advocate General for the respondent
no.3/State.
ORDER
The present petition under Article 226 of the Constitution of India has
been filed praying for the following reliefs:
''7. Relief Prayed for:
In view of the aforesaid facts and grounds the petitioner humbly prays for the
following reliefs:
The communication through letter No.1956 dated 30.5.2025 made to the
petitioner by the respondent no.3 (Annexure P/9) be quashed.
The respondent no.1 and 2 be directed to issue completion certificate to the
petitioner by accepting petitioner's application dated 24.3.2025 (Annexure P/7)
The respondent no.1 and 2 be directed to release the mortgaged plots to the
petitioner as petitioner has already completed the development as per
sanctioned layout plan.
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 04-11-2026
18:33:22
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The petitioner be awarded cost of the petition."
2. FACTS GIVING RISE TO THE PRESENT PETITION
The petitioner is a company incorporated under the provisions of
Indian Companies Act 1956 (a photocopy of registration certificate of the
petitioner company owning land bearing survey nos. 78/2, 79/2, 80/2, 81/1,
82/1 and 83/2: total areas 1.526 Hect., situated in village Kabirkhedi, Tehsil
& Dist. Indore. The aforesaid land was diverted for residential multi-flatted
dwelling unit u/s 172(1) of MP Land Revenue Code[for short, referred to as
'MPLRC' hereinafter]and consequently the aforesaid land was diverted vide
order dated 08.10.2015 passed by the Sub Divisional Officer
(Revenue).Since the petitioner company wanted to develop a residential
colony upon the aforesaid land, therefore the petitioner has applied for
colonizer registration certificate which was granted by the respondents to the
petitioner company on 05.07.2021. The petitioner has proposed to develop
the residential colony in the name of 'Hans Greens' and therefore had applied
to the Office of the Joint Director Town & Country Planning for sanction of
the site plan, which was sanctioned by the office of Joint Director Town &
Country Planning on 14.06.2021 and thereafter, the petitioner had applied for
development permission from the respondents, which was granted by the
respondent no.2 vide letter dated No.1150 dated 17.03.2022. A mortgage
deed has also been executed by the petitioner as required under the Rules. On
the basis of the sanctioned layout plan, the entire development has been done
by the petitioner company. Damar Road as well as Cement Concrete Road
has been constructed as per sanctioned plan. Culvert[Puliya] has also been
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Signed by: SEHAR HASEEN
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constructed, Water supply system by way of tube-well and sunk well has also
been developed. Sewer line and Safety tank have also been constructed.
Sewerage Treatment Plant has also been constructed. Electrification has also
been done. Trees have been planted and the entire development was
completed by the petitioner. After completion of development, the petitioner
applied for issuance of the development completion certificate to the
respondents on 24.03.2025. The aforesaid application dated 24.03.2025 has
been referred to by the respondents in the letter dated 29.04.2025, which has
been addressed by the respondent no.2 to the office of the Joint Director
Town & Country Planning, copy of which has been endorsed to the
petitioner also, in which it has been stated that there appears to be some
confusions or contradictions in the sanctioned layout plan dated 14.6.2021
and therefore it has been stated in the aforesaid letter that the sanctioned
layout plan dated 14.06.2021 be amended so that completion certificate may
be issued to the petitioner and on the basis of the aforesaid letter dated
29.04.2025, respondent no.3 issued a letter dated 30.05.2025 to the petitioner
mentioning therein that the sanctioned layout plan dated 14.06.2021 remains
stayed and the petitioner should submit revised layout plan for sanction
within 15 days. the petitioner submits that after all the sanctioned obtained
from the respondents as well as from the relevant authorities, the petitioner
also executed registered sale deeds in favour of various plot holders. Despite
development of the entire colony as well as registration of various plots in
favour of plot holders, the respondents are not issuing completion certificate
to the petitioner. Hence, the present writ petition has been filed.
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 04-11-2026
18:33:22
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3. CONTENTIONS OF LEARNED COUNSEL FOR THE
PETITIONER:
(i) Learned counsel for the petitioner submitted that the petitioner
company has developed the entire residential colony after obtaining due
permissions and sanctions from the relevant authorities and during
continuance of the permission entire development of the colony has been
done and even after development certain plots have also been sold out.
(ii) Learned counsel for the petitioner submitted that the entire
development of the colony has been done on the basis of sanctioned layout
plan and as per the specifications of the terms and conditions mentioned
therein and at no point of time any violation has been done by the petitioner
of any terms and conditions, nor any provisions of the Acts or Rules have
ever been violated by the petitioner.
(iii) It is submitted that for sanction of the layout plan, respondent no.
3 has got deposited Rs. 1.24,500/- from the petitioner and after getting it
deposited from the petitioner in the month of April 2021 and after getting it
inspected from the Authorized persons and after due spot inspection and
when everything has been done in order then only the permission/sanction
has been granted to the petitioner. Now, after expiry of 4 years the impugned
communication could not have been made to the petitioner.
(iv) It is contended that petitioner has never violated any provisions of
Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam 1973[referred to as
the 'Adhiniyam, 1973', hereinafter] and/or Madhya Pradesh Bhumi Vikas
Rules 2012[referred to as ' Rules of 2012', hereinafter].
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(v) It is further contended that the development of entire colony has
been inspected by the officials and Engineers of the respondents and nothing
has been found contrary to the sanctioned layout plan or any of the statutory
provisions of law.
(vi) It is also submitted that the respondents have unnecessarily
referred the provisions of clause 6.3 (21) of the Indore Development Plan
2021 which is not applicable to the petitioner company as near the
petitioner's colony no "Nadi" (rever) is in existence. 'Nalla' (broomstick)
cannot be said to be "Nadi" (river) and in such circumstances provision of
clause 6.3(21) of the Master Plan cannot be applied in the present facts and
circumstances of the case It appears that for no reasons, respondents are
raising unnecessary objections about it and are not issuing completion
certificate to the petitioner.
(vii) It is submitted that the directions made by respondent no.3 in the
communication dated 30.05.2025 to submit revised layout by the petitioner is
absolutely illegal, and without jurisdiction as the entire colony has already
been developed by the petitioner as per sanctioned layout plan dated
14.06.2021 and after sanction of layout plan, entire development has been
done.
(viii) It is also submitted respondent no.3 is having no authority or
jurisdiction to exercise powers under rule 25 of the Rules of 2012. There was
no false statement or mis-representation made by the petitioner at any point
of time and it has not been so alleged by the respondents. Even sanction
which has been granted to the petitioner is not against any of the provisions
Signature Not Verified
Signed by: SEHAR HASEEN
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of MP Municipal Corporation Act 1956 or the Rule 2012 or the Adhiniyam
1973 or Madhya Prdesh Nagar Palika Colonizer ka Registrikaran (Terms &
Conditions) Rule 1998.
Under these circumstances, there is no reason or occasion for the
respondents to revoke the completion certificate without any valid reasons.In
these circumstances, respondents are not within jurisdiction to withhold the
issuance of completion certificate, specially when entire development has
been got checked and inspected from the officers of the
respondents.Because, the respondents have not taken into consideration that
after starting development work on the basis of sanction neither the
permission can be suspended or permission can be revoked. there is no
reason or occasion for the respondents to withhold or not to issue completion
certificate of the colony to the petitioner, even after completion of
development of entire colony.In these circumstances, the impugned
communication is bad in law and without jurisdiction.Thus the entire action
of respondents is illegal, arbitrary and therefore warrants interference by this
Court.
4. CONTENTIONS RAISED BY THE RESPONDENT NO.1 & 2
/IMC
(i) Learned counsel for the respondents submitted that the Town &
Country Planning Department sanctioned the layout presented by the
petitioner on 14.06.2021 and on 17.03.2022, colony development permission
was granted by respondent No. 02 on the basis of the development
permission granted by the Town & Country Planning Department.
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 04-11-2026
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(ii) It is further submitted that an affidavit was submitted by the
petitioner wherein it was stated that the land is not included in any Nalla,
River, etc. and in case of concealment of any fact by the petitioner, the
permission granted will be cancelled.
(iii) It is also submitted that on 24.03.2025, the petitioner made an
application to the answering respondents for obtaining completion certificate.
In order to ascertain the status of development work a spot inspection was
carried out by the Sub-Engineer, Assistant Engineer and Executive Engineer
of the Indore Municipal Corporation wherein it was found that the layout of
T&CP was sanctioned considering the water body situated in the North Side
of colony as a 'Nalla' whereas in layouts of other colonies the same water
body has been considered as a River and thus, the plotting in other adjoining
colonies was done after a distance of 30 meters. However, in the case of the
petitioner, plotting has been done leaving a distance of 09 meters only and
as soon as the respondents gained knowledge about the aforementioned fact,
a letter dated 29.04.2025 was issued to the Joint Director, T&CP seeking
opinion so that the application for completion certificate may be decided as
per Rule 24 of the Rules, 2012, Clause 6.3 (21) of the Indore Development
Plan, 2021 and other relevant provisions of law.
For ready reference the relevant portion of Rule 24 of the M.P. Bhumi
Vikas Rules, 2012 and Clause 6.3 (21) of the Indore Development Plan are
reproduced herein below:
"24. Deviation from sanctioned plan. (1) No deviation from the sanctioned
plan shall be permissible if the construction involved in such deviation,-
(a) affects the front Marginal Open Space;
[(b) exceeds 30% of the permissible FAR;"]
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Signing time: 04-11-2026
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(c) is related to the parking area and public utility space;
(d) comes within the boundary of road or the area affecting the alignment of
public road
(e) comes in the area of any water body (talab), river or nallah or stream; and
comes within 30 meters or such distance from the bank of water bodies as may
be prescribed in the respective development plan."
"6.3
ेािधकार एवं यावयन अवधारणा
(21)
वकास योजना म नद नाल के दोन ओर दशा या गया ह "रत े सांकेितक
30 ,
$व%प का है। नद के दोन कनारो पर उ *चतम जल $तर से यूनतम मीटर बड़े
60 ,
जलाशय के उ चतम जल $तर से मीटर क 1 तक छोटे जलाशय के उ चतम
दूर
30
जल $तर से मीटर क 1 दूर तक तथा नाल क 1 4$थित म म 5य 6देश भूिम वकास
-1984 50 ( )
िनयम के िनयम ख म िन हत 6ावधान के अनुसार खुला े रखना
, "
अिनवाय होगा पर तु इस भूिम पर माग का िनमा ण $वीकाय होगा।
(emphasis supplied)
(iv) It is submitted that from a bare perusal of the T&CP layout, it is
evident that the water body on the North side has been intentionally shown
by the petitioner as a Nallah, which actually is a River. Hence, petitioner is
the author of the situation who has himself furnished wrong information for
obtaining development permission from T&CP. As soon as, the Corporation
learned about the anomaly during spot inspection, it was informed to T&CP
department.
(v) It is further submitted that petitioner has averred that registered sale
deeds have been executed in favour of various plot holders before obtaining
the completion certificate/ occupancy certificate. Whereas, as per Section 17
of Real Estate (Regulation And Development) Act, 2016, the transfer of title
shall be carried out within 03 months from the date of obtaining occupancy
certificate.
In support of his contentions, learned counsel for the respondent no.1
and 2 has relied upon various judgments which are as under:
In the case of Bikram Chatterji v. Union of India reported
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in (2019) 19 SCC 161: 2019 SCC OnLine SC 901, wherein it has been
observed that:
"117. Section 14 provides adherence to sanctioned plans and project
specifications by the promoter. Section 15 deals with the obligations of the
promoter in case of transfer of a real estate project to a third party. The
promoter shall not transfer or assign his majority rights and liabilities to a third
party without obtaining the prior written consent of two-thirds allottees and
without the prior written approval of the Authority. Section 16 deals with
obligations of promoter regarding the insurance of real estate project. Section
17 provides for the transfer of title. It is incumbent upon the promoter to
execute a registered conveyance deed in favour of the allottee along with
undivided proportionate title in the common areas to the association of the
allottees or the competent authority and the possession of the plot, apartment or
building, as the case may be, shall be handed over to the allottees and the
common areas to the association of the allottees or the 3. competent authority,
as the case may be. Section 17(1) is extracted FoR hereunder:
"17. Transfer of title.-(1) The promoter shall execute a registered conveyance
deed in favour of the allottee along with the undivided proportionate title in the
common areas to the association of the allottees or the competent authority, as
the case may be, and hand over the physical possession of the plot, apartment
of building, as the case may be, to the allottees and the common areas to the
association of the allottees or the competent authority, as the case may be, in a
real estate project, and the other title documents pertaining thereto within
specified period as per sanctioned plans as provided under the local laws:
Provided that, in the absence of any local law, conveyance deed in favour of
the allottee or the association of the allottees or the competent authority, as the
case may be, under this section shall be carried out by the promoter within
three months from date of issue of occupancy certificate."
(emphasis supplied)
Hon'ble National Green Tribunal in the case of Kishore Samrite
Vs. Union of India has held in Para Nos. 18 & 19 that:
"18. In view of above, as far as issue to protection of water bodies generally is
concerned, the same stands concluded and the authorities in the State of MP
may deal with the matter in accordance with the said directions. Needless to
say that in the light of judgment of the Hon'ble Supreme Court in M.K.
Balakrishnan and Ors. vs. Union of India, M.C. Mehta v. Kamal Nath & Ors.
and Hinch Lal Tiwari v. Kamala Devi, the State Authorities are under
obligation to protect the water bodies.Water becoming contaminated cannot be
a ground to change the land use and destroy such water body.
19. The application will stand disposed of accordingly with a direction that the
compliance of environmental norms for protection of water bodies may be
monitored in every district by the District Magistrate at regular intervals which
may also be monitored by the Chief Secretary of the State in accordance with
the directions of this Tribunal on the subject quoted above. Since any decision
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Signed by: SEHAR HASEEN
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of the State Authorities has to be compliant with the Central Environmental
Laws on the subject, inter alia, Air Act, Water Act, Environment (Protection)
Act, 1986 and Rules/Orders framed thereunder, including Wetland Rules, any
earlier decision including decision with regard to change of land use or master
plan may be liable to be revisited in the light thereof."
(Emphasis Supplied)
The Hon'ble Apex Court in the case of T.N. Godavarman
Thirumulpad (87) v. Union of India, (2006) 1 SCC I has held that:
"Natural resources are the assets of the entire nation. It is the obligation of all
concerned, including the Union Government and State Governments to
conserve and not waste these resources.
Article 48-A of the Constitution requires that the State shall endeavour to
protect and improve the environment and to safeguard the forest and wildlife of
the country. Under Article 51- A, it is the duty of every citizen to protect and
improve the natural environment including forests, lakes, rivers and wildlife
and to have compassion for living creatures."
It has also been observed in Para 74 that:
"74. The strategy under the Forest Policy is to have a minimum of one-third of
the total land area of the country under forest or tree cover. In the hills and in
mountainous regions, the aim should be to maintain two-thirds of the area
under such cover in order to prevent erosion and land degradation and to ensure
the stability of the fragile ecosystem. Clause 4.3 lays down the aspects of
management of State forests. It would be instructive to reproduce hereunder
certain parts of the policy with a view to have clarity in the aim to be achieved:
"4.3.1. Schemes and projects which interfere with forests that clothe steep
slopes, catchments of rivers, lakes, and reservoirs, geologically unstable terrain
and such other ecologically sensitive areas should be severely restricted.
Tropical rain/moist forest, particularly in areas like Arunachal Pradesh, Kerala,
Andaman and Nicobar Islands should be totally safeguarded."
In the facts and circumstances of the present case, it is prayed by the
respondents that it will be in the interest of justice and fitness of things, the
petition deserves to be dismissed.
5. CONTENTION RAISED ON BEHALF OF RESPONDENT
NO.3/ JOINT DIRECTOR, T & CP
(i) It is submitted that the petitioner has filed the present writ petition
challenging the communication dated 30.05.2025 issued by Respondent No.
3, whereby the Development Permission dated 14.06.2021 was suspended
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and the Petitioner was directed to submit a revised layout within 15 days
under Section 29(3) of the Adhiniyam, 1973. The petitioner had an
efficacious statutory remedy under Sections 31 and 32 of the h Adhiniyam,
1973 against the communication dated 30.05.2025. However, without
availing the said statutory remedy, the Petitioner has directly invoked the
extraordinary writ jurisdiction of this Court under Article 226 of the
Constitution of India and therefore, the petition is not maintainable and is
liable to be dismissed on the ground of availability of an efficacious
statutory remedy.
(ii) It is also submitted that the Development Permission dated
14.06.2021 granted by Respondent No.3 and the Development Permission
dated 17.03.2022 by Respondent No.2 were both issued subject to various
statutory terms and conditions. The said permissions did not confer any
absolute or vested right upon the petitioner, and the petitioner was required
to comply with the prescribed conditions and the applicable planning laws
throughout the development process.
(iii) It is also submitted that the petitioner itself has filed the approved
Layout Plan dated 14.06.2021 wherein the 'Nala' adjoining the colony is
clearly shown. Thus, the petitioner was fully aware of the existence and
location of the said 'Nala' and was required to comply with the applicable
planning laws, rules and planning norms relating thereto.
(iv) It is submitted that upon the petitioner's application for grant of
Completion Certificate, the Technical Committee of Respondent No.2
conducted a site inspection and found many of the plots had been approved
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at a distance of only 09 metres from the Nala, whereas in the layouts of other
adjoining colonies, a distance of 30 metres had been maintained.
Accordingly, Respondent No.2, vide its letter dated 29.04.2025 (informed
Respondent No.3 about the said discrepancy and requested necessary action
in accordance with the applicable rules.
(v) It is also submitted that respondent No.3, after examining the
report received from Respondent No.2 and the applicable statutory
provisions, issued the communication dated 30.05.2025 under Section 29(3)
of the Adhiniyam, 1973. By the said communication, the Development
Permission dated 14.06.2021 was not finally cancelled. Instead, the
Petitioner was granted 15 days' opportunity to submit a revised layout for
modification of the Development Permission in accordance with Section
29(3) of the Adhiniyam.
(vi) It is also submitted that before issuing the communication dated
30.05.2025, respondent No.3 examined the report submitted by Respondent
No.2 along with the relevant revenue records and the applicable planning
provisions. Upon such examination, Respondent No.3 found it necessary to
invoke the powers under Section 29(3) of the Adhiniyam, 1973 and
accordingly issued the impugned communication in accordance with law.
(vii) It is further submitted that upon examination of the relevant
revenue records, it was found that a Nala exists on the northern side of the
subject land. Respondent No.3 also considered Clause 6.3(21) of the Indore
Development Plan, 2021 and Rule 50(b) of the Rules, 2012 governing
development adjoining the Nala. As the applicable planning requirements
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relating to the Nala were found not to have been complied with, Respondent
No.3 issued the communication dated 30.05.2025 directing the petitioner to
submit a revised layout under Section 29(3) of the Adhiniyam, 1973.
(viii) It is also submitted that the communication dated 30.05.2025 has
been issued after due consideration of the report submitted by Respondent
No.2 and the applicable statutory provisions.
(ix) It is further submitted that vide communication dated 11.07.2025,
Respondent No.3 has afforded the petitioner an opportunity of hearing in the
matter and directed the petitioner to appear before the office of Respondent
No.3 on 22.07.2025 along with the relevant documents, either personally or
through its legal representative and thereafter, vide communication dated
12.08.2025, the petitioner was granted a final opportunity of hearing and was
directed to appear before the office of Respondent No.3 on 20.08.2025 along
with the relevant documents, either personally or through its legal
representative. Repeated opportunities of hearing afforded to the petitioner
before taking any final decision in the proceedings arising from the
communication dated 30.05.2025. However, instead of availing
the opportunities and participating in the proceedings, the petitioner
approached this Court and filed the present Writ Petition even before
Respondent No.3 could pass a final decision in the matter. Since no final
decision has yet been taken by Respondent No.3, the reliefs sought by the
petitioner are premature and the present writ petition is liable to be dismissed
on this ground also. The impugned communication is a reasoned and
statutory order passed in accordance with law and does not suffer from any
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arbitrariness or illegality. The present writ petition, being devoid of merits,
deserves to be dismissed with costs.
6. Heard, rival contentions made at the Bar and perused the record.
7. FINDINGS
(i) Petitioner is owning land bearing survey no. 78/2, 79/2, 80/2,
81/1, 82/1 and 83/2 total area 1.526 hect situated in village Kabirkhedi, Dist.
Indore.After getting the aforesaid land diverted u/s 172 (1) of MPLR Code
on 8.10.2015, petitioner obtained colonizers registration certificate on
5.7.2021.Petitioner proposed to develop a residential colony in the name of
'Hans Greens' and Therefore on 14.6.2021 a residential plan has been got
sanctioned from the office of the Jt. Director T&CP Indore and thereafter the
Petitioner obtained development permission from respondent no.2 on
17.03.2022 and also executed mortgage deed under the rules.As per
petitioner, the entire development has been done by the petitioner as per
layout plan sanctioned by the Jt. Director T&CP Indore and after completion
of the entire development work, the petitioner has applied for issuance of
development completion certificate on 24.03.2025. This application has been
referred by respondents no.1 and 2, to respondent no. 3 on 29.04.2025.
Thereafter, on 24.03.2025 respondent no. 3 has stated that, that the
sanctioned lay out plan dated 14.06.2021 be amended so that the completion
certificate may be issued to the petitioner. Thereafter, on the basis of letter
dated 29.4.2025 respondent no. 3 a letter dated 30.5.2025 to the petitioner
that the sanctioned layout plan dated 14.6.2021 shall remain stayed and
petitioner should submit revised layout plan for sanction within 15 days. This
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communication issued by respondent no. 3 dated 30.5.2025 (has been
challenged by the petitioner on various grounds as already discussed above.
(ii) In the present case, it is clear that site plan has been sanctioned by
respondent no.3 on 14.06.2021 and development permission was also granted
by the respondent no.2 on 17.03.2022 and mortgage deed was also executed
by the petitioner in favour of respondent no.1 and 17 plots were mortgaged
which is clear and the entire development of the residential colony was
completed by the petitioner and thereafter only application has been
submitted by the petitioner on 24.03.2025 to respondent no.2 for issuance of
completion certificate and therefore the only question for consideration
before this Court is that whether after completion of entire development, as
per sanctioned plan dated 14.06.2021 whether respondents were authorized
to direct the petitioner to submit revised site plan as per their own choice. In
the circumstance when the entire development has already been completed
as per sanctioned site plan dated 14.06.2021, respondent no.3 is not
competent to direct the petitioner to submit revised site plan and at the same
time respondent no.1 and 2 cannot say that completion certificate will be
issued only after submission of revised site plan by the petitioner.
(iii) It is undisputed fact that after getting the site inspected, the
authorities themselves have sanctioned the layout plan in the year 2021.
After due inspection by respondents, nothing has been found contrary to the
sanctioned layout plan or under the statutory provisions of Law. Then there
is no reason or occasion for the respondents, not to issue completion
certificate of the colony to the petitioner when the entire development as per
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the sanctioned site plan by the petitioner after expenditure of huge amount
has been done and after completion of the entire development as per the
sanctioned site plan, it cannot be directed that a revised site plan be
submitted for sanction.and, therefore, respondent no.3 cannot direct the
petitioner to submit revised layout plan after development of entire
residential colony.
(iv) In the present case, it clearly appears that the entire colony has
been developed after obtaining due permissions from the competent
authorities i.e. the land has been diverted by the SDO, colonizer licence was
also issued by competent authority and thereafter site plan has been
sanctioned by the Jt. Director T&CP Indore and detailed plan has also been
sanctioned by IMC, even mortgage deeds have also been got executed with
respect to mortgaging 17 plots. Under such circumstances, it cannot be said
that the petitioner has violated any of the statutory provisions of law.
8. In this regard, the relevant paragraphs of the following judgments
are worthy of reference and reproduced below for convenience:
i) In the case of Abhishek Mittal(supra), the Court has held as under:
"4. Facts of the case are that petitioner has purchased totaling 0.211 hectare land
situated at Survey Nos.392/10, 392/11 and 392/1, Patwari Hala No.5, Village
Niranjanpur, Tehsil and District Indore by way of registered sale deed dated
02.04.2004 from Kiran Co-operative Housing Society Ltd. Indore. Thereafter, the
petitioner applied and granted sanction from Town and Country Planning
Department on 21.05.2004 and later on, diversion was also allowed on 24.05.2004.
Thereafter, in the year 2025, when the petitioner intended to develop the said land,
he has approached before respondent no.2/Executive Engineer, Colony, Cell, IMC,
Indore who gave Form No.4 under Rule 8 of Madhya Pradesh Nagar Palika (Colony
Development) Rules, 2021 (hereinafter referred to as the "Rules of 2021") also
informing him to obtain NOC from concerned Co-operative Department and finally
the impugned order dated 28.04.2025 has been passed directing the petitioner to
obtain NOC from Co-operative Department.
5. Learned counsel for the petitioner has submitted that there is no requirement
under law to obtain NOC from Co-operative Department for the reasons that no such
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NOC is prescribed under the Rules of 2021 and only one NOC is required from the
Town and Country Planning Department. Whereas under Rule 9 of the Madhya
Pradesh Nagar Palika (Registration of Coloniser, Terms and Conditions) Rules,
1998 (hereinafter referred to as 'the Rules of 1998'); three NOCs were required to be
obtained i.e. (i) Under the Urban Land Ceiling Act, 1976/ (ii) Necessary Certificate
under the Madhya Pradesh Town and Country Planning Act 1973; and (iii) From the
Nazul Officer, but now, after the amended Act of 2021, only one NOC is required
from the Town and Country Planning Department. It is also submitted that the
petitioner has already obtained the same way back in the year 2004 i.e. on
21.05.2004. Under these facts and circumstances, there is no need to obtain two
more NOCS.
6. In support of his contention, counsel for the petitioner has relied upon the
judgment rendered by Co-ordinate Bench of this Court in the case of Shri Ji Builders
and Developers Partnership Firm vs. Madhya Pradesh Real Estate in WP
No.19852/2023 decided on 23.09.2024 wherein it is observed that Section 72-B(1)
(g) of M.P. Act, 2010 has brought into force w.e.f. 04.01.2010 and is prospective in
nature, therefore, the permission is required in respect of the land which has been
sold before 04.01.2010.
7. Counsel for the petitioner has also referred para no.5 the Judgment of Hon'ble
Apex Court passed in the case of Anupam Shahakari Griha Nirman Samithi
Maryadit, Raipur vs. State of Madhya Pradesh and Others AIR 1989 MP 163.
8. The prayer of the petitioner is vehemently opposed by counsel for the respondent
and it is submitted that the petitioner has been rightly issued the impugned notice
seeking NOC from Co-operative Department. It is also submitted that under Sub-
Rule 3 of Rule 9 of the Rules of 2021, the Authority has power to obtain additional
necessary information and documents. It is also submitted that the sale deed has
been executed in favour of the petitioner in violation of the provisions of Section 41
(A) of M.P. Co- operative Societies Act, 1960. Therefore, no case of interference is
made out and prays for dismissal of the petition.
9. In rebuttal of the aforesaid, counsel for the petitioner submits that this provision is
not applicable in the present case and the same shall be applicable only if any
member of the Co-operative Society obtained loan from the society and unable to
pay the same, the Society may sell the such part of land to other person.
10. Heard counsel for the parties and perused the record.
11. From the record, it is apparent that the petitioner has been issued notice dated
28.04.2025 by the respondent No.2 Executive Engineer, Colony Cell, Indore
Municipal Corporation directing the petitioner to obtain the NOC from the Co-
operative Department, as he has purchased the land from the Co- operative Society,
namely, Kiran Co-operative Housing Society Ltd. and information is sought that
whether the said society has sold the land to the petitioner, instead of allotting the
same to its members. However, on perusal of the Rules of 1998 relied upon by the
petitioner in this regard, there is no such requirement to be obtained from the Co-
operative Department, and it appears that only as a caution and to ensure that the
rights of the members of the society be not violated, the aforesaid notice has been
issued while relying upon executive instructions dated 04.11.2022 issued by the
Collector, Indore In such circumstances, the impugned order dated 28.04.2025
cannot be sustained in the eyes of law, and the same is hereby quashed, and the
respondents are directed to grant the permission for development of colony in
accordance with the Rules of 1998 and 2021, without insisting upon getting NOC
from the Registrar, Cooperative."
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ii) In the case of MP Real Estate Regulatory Authority Bhopal Vs.
Shri Ji Builders and Developers passed in W.A. No. 2857/2024, the Division
Bench in para 27 has held as under:-
27. After carefully considering the above-mentioned legal provision, we are the
opinion the writ court has rightly held that, there is no permission of Registrar was
required for transferring of land prior to 04.01.2010. Said amendment introduces a
liability on societies to seek permission of Registrar before entering transactions.
Since liability is imposed by said amendment, therefore, said amendment will not
operate retrospectively. It will be applicable prospectively i.e. on transactions which
are done after 04.01.2010. secondly there is no force on the argument of the
appellant that the according the provision of section 36 and 38, the previous section
of registry is required for transfer the property to other then the member of society,
we are agreeing the argument of the respondent that the above provision are required
for only the lone transitions.
(ii) In the matter of Satyam Cineplax Ltd. Vs. State of M.P. reported
in 2021 SCC Online MP 2228, the Division Bench has held in para 15 as
under:-
1 5. Before dealing with rival contentions on merits, it is apposite to decide the
question of availability of alternative remedy. Indisputably, an alternative remedy is
available to the petitioner against the impugned order. However, it is noteworthy that
this petition despite availability of that remedy was entertained by this Court way
back on 28.07.2014. The question involved in the present matter is legal in nature
and no factual inquiry is required. In our opinion, after almost six years from the
date present petition was entertained, it will not be proper to relegate the petitioner
to avail the alternative remedy. We find support in our view from the judgment of
this Court reported in 1995 MPLJ 969 (Chambal Ghati Shiksha Prasar Samiti vs.
State of M.P.). After considering the judgment of Supreme Court reported in 1970
(2) SCC 355 (Hriday Narain vs. ITO Bareilly), this Court came to hold as under:
"There is no dispute with the proposition that when an alternate remedy is
available then normally aggrieved party should be relegated to his ordinary
remedy provided under the statute. But there is another well known principle
of law enunciated by the Supreme Court. In Hirday Narain v. Income Tax
Officer, Bareilly, (1970) 2 SCC 355: AIR 1971 SC 33, the Supreme Court
has held in categoric terms that if a petition is entertained and during the
pendency of the petition the remedy for seeking alternate remedy expires then
the petitioner should be heard on merits and the parties should not be
relegated to remedies under the statute."
(Emphasis Supplied)
(iii) In the case of Alok Kumar Choubey Vs. State of M.P. reported in
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2021 (1) MPLJ 348 , in paras 16 and 21 it has been held as under:-
"16. Seven well recognized exceptions to the rule of alternative remedy, which can
be culled out from the afore-discussed judgments of the Supreme Court for
entertaining a writ petition under Article 226/227 of the Constitution, can be
summarized thus: (i) where the writ petition has been filed for enforcement of
fundamental rights; (ii) where there has been violation of principle of natural justice;
(iii) where the order of proceedings is wholly without jurisdiction; (iv) where the
vires of any Act is under challenge; (v) where availing of alternative remedy subjects
a person to very lengthy proceedings and unnecessary harassment; (vi) where the
writ petition can be entertained despite alternative remedy if the question raised is
purely legal one, there being no dispute on facts; and (vii) where State 'or its
intermediary in a contractual matter acts against public good/interest unjustly,
unfairly, unreasonably and arbitrarily. Despite afore-noted exceptions, especially
fifth and seventh of the above, whether or not in a particular case the writ court
should entertain a petition under Article 226/227 of the Constitution of India rather
than requiring the petitioner to avail alternative remedy, would always depend on the
facts situation of a given case, upon the petitioner making out a strong case. If it is
shown that the facts of the case are not disputed and the Government or its
instrumentality has been found acting unjustly, unfairly and unreasonably even in
regard to its contractual obligations, the High Court would be justified in
entertaining the writ petition despite availability of alternative remedy.
21. In the facts of the case, action of the respondents in withholding the amount of
the performance guarantee (security) of the petitioner is held to be arbitrary and
unreasonable, being violative of Article 14 of the Constitution of India. The
respondents are therefore not justified in withholding the amount of performance
guarantee (security) deposited by the petitioner and then insisting upon the petitioner
to invoke arbitration clause rather than invoking writ jurisdiction of this Court under
Article 226 of the Constitution of India. When the facts are not in dispute and it has
been established to the satisfaction of this Court that the respondents have acted
arbitrarily and contrary to the relevant stipulations in the agreement and the contract
data, the availability of alternative remedy, in the facts of the present case, cannot
justify rejection of the present writ petition on the spacious plea of alternative
remedy. The alternative remedy of dispute resolution system by way of an
application to the competent authority and thereafter to the appellate authority and
then thereafter to the Arbitration Tribunal, in the facts of the present case, cannot be
taken as an efficacious alternative remedy, particularly when Section 17 of the
Adhiniyam of 1983 bars the Tribunal from granting any interim relief. In the facts of
the present case, requiring the petitioner to go through the process of dispute
resolution system provided for under Clause 12 of the agreement, would amount to
subjecting him to lengthy proceedings without there being any remedy of interim
relief, inasmuch as the question raised in the present writ petition is purely legal one,
based on interpretation of Clause 29 of the Contract Data and the impugned action of
the respondent is totally against the public good, being highly unjust, unfair,
unreasonable and arbitrary. Clauses v, vi & vii of the exceptions to the rule of
alternative remedy, as enumerated in Para-16 above, are therefore clearly attracted in
the present case. Thereafter, Hon'ble Apex Court in various judgments observed that
the alternative efficacious remedy is not absoulte bar to exercise power under Article
226 of Constitution of India where there is violation of principle of natural justice
and also action is found bad in law."
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(iv) In the case of M/s Shriram Builders Through its Partner
Shashibhushan Vs. Cooperative Department order dated 21.04.2025 passed
in W.P. No. 7617/2021, in para 18 and 27, it has been held as:
"18. It is well settled in law that when a statutory functionary makes an order based on
certain grounds, its validity must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons. Though the authorities on this point are numerous but
suffice it would be to refer to the decision of the Apex Court in Mohinder Singh Gill and
Another versus Chief Election Commissioner, New Delhi and Others, 1978 (1) SCC 405
in which it was held as under:-
"8. The second equally relevant matter is that when a statutory functionary makes
an order based on certain grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the beginning may, by the time it comes to
court on account of a challenge, get validated by additional grounds later brought
out. We may here draw attention to the observations of Bose, J. in Gordhandas
Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, 1951 SCC 1088: AIR
1952 SC 16]: "Public orders, publicly made, in exercise of a statutory authority
cannot be construed in the light of explanations subsequently given by the officer
making the order of what he meant, or of what was in his mind, or what he
intended to do. Public orders made by public authorities are meant to have public
effect and are intended to affect the actings and conduct of those to whom they are
addressed and must be construed objectively with reference to the language used in
the order itself." Orders are not like old wine becoming better as they grow older."
27. The permission was granted to the society on 28.02.2003 for sale of the land to the
petitioner which was sold in the year 2003 itself. Thereafter, the petitioner was mutated
over the disputed land. It submitted plan for development of the land which was approved
by the Town and Country Planning Department in accordance with the usage of the land.
The disputed land was proposed to be acquired for the scheme of the IDA on two
occasions, which was contested by the petitioner by institution of legal proceedings which
terminated in its favour. The disputed land has been diverted for commercial usage and the
Municipal Corporation has also granted building permission and has approved the map for
construction of building on the land for commercial and PSP use. In that process, the Joint
Registrar also verified the fact that the land has been sold to the petitioner after due
permission. An amount of Rs.2,58,38,859/- has been deposited by the petitioner for
development of the land. As stated by the petitioner, it has already commenced the
construction work. It is hence evident that the permission dated 28.02.2003 has been acted
upon and has in fact been effectively exhausted hence after such a long lapse of time, it is
wholly illegal, unjustifiable and inequitable to revoke the same and in fact nothing
remained to be revoked."
9. It is clear from Clause 20 of the order dated 14.06.2021 itself, by
which site plan was sanctioned that a drain is situated near the proposed
colony of the petitioner and therefore in terms of rule 50 (b) of the Rules of
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2012, no construction work shall be carried out within 9 mtr from the drain.
In such circumstances, as per sanctioned plan, the petitioner has developed
the colony strictly in accordance with the sanctioned map and, therefore, it
cannot be said that the petitioner is liable for any alleged lapses. There
cannot be said to be any violation of Rule 1 of the Rules of 2012, as
development has been done as per plan sanctioned by respondent no.2 and
there is no allegation against the petitioner all that any development has been
done by the petitioner which is against the sanctioned plan. It also appears
from the list that various registered sale deeds have already been executed
by the petitioner with respect to the plots sanctioned in the site plan and
therefore now it does not lie in the mouth of the respondents to say that the
layout plan sanctioned by respondent no.3 in 2021 deserves to be modified
or revised site plan has to be submitted by the petitioner after four years
when the whole development work of colony has been carried out and even
some plots have been sold out by executing registered sale deeds. Under
these circumstances the say of respondent no.3 regarding submitting revised
site plan cannot be countenanced in the eyes of law and, therefore, the letter
dated 30.05.2025 respondent no.3 is absolutely illegal and without
jurisdiction as such deserves to be quashed. Further respondent no.1 and 2
are also required to issue completion certificate of the residential colony of
the petitioner as nothing has been found by them that it is incomplete.
10. So far as the contention of respondent no.3 that on 20.0.2025
show cause notice was issued by respondent no.3 to the petitioner, but this
cannot be the basis for justifying the communication dated 30.05.2025 as
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the present writ petition has already been filed by the petitioner 18.06.2025
and therefore issuance of SCN on 20.7.2025 is amounting to interference in
due course of justice as the matter is already subjudiced before this Court
and the matter is pending consideration before this Court.
11. As per the say of respondent no.1 and 2, other adjoining
colonies i.e. Nirwana Royal residency, Amba Green Colony, Shreeji Estate
and Nirwanpuram have also been sanctioned by giving distance of 30 mtr
from the nalla and therefore the petitioner's colony should have also been
given the same distance of 30 mtr, the said contention respondent no.1 and 2
cannot be accepted at this juncture in view of the fact that with open eyes,
respondent no.3 has sanctioned site plan of petitioner's colony. Needless to
add that before sanctioning site plan of the petitioner, spot inspection was
also conducted by respondent no.3 and no such anomaly was pointed out at
any point of time and the sanctioned site plan issued in the year 2021 with
other permissions was directed to be revised in the year 2025 when the
whole development work has been completed, which is completely illegal
and arbitrary. It is therefore evident that the site plan was issued in the year
2021 and the petitioner has been acted upon and had further proceeded to take
other permissions and thereafter carried out the development work and thereafter,
the respondent no.3 had issued letter dated 30.05.2025 for giving revised site plan
. Hence, after such a long lapse of time, it is wholly illegal, unjustifiable and
inequitable to revoke the earlier plan and in fact nothing remained to be revoked
as held in the case of M/s Shriram Builders Through its Partner
Shashibhushan (supra).
12. The contention regarding availability of alternative efficacious
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remedy is raised by the counsel for respondent no.3. In this regard, the Seven
well recognized exceptions to the rule of alternative remedy come into play in view of
the judgment rendered in the case of Alok Kumar Choubey(supra) & Satyam
Cineplax Ltd(supra).
13. CONCLUSION
(i) In view of the above discussion and the proposition of law as
enunciated above, the impugned order suffers from jurisdictional infirmity,
as the action of respondent no.3 authority is considered to be arbitrary,
without authority of law and, therefore, this is a fit case which warrants
interference by this Court by exercising power under Article 226 of the
Constitution of India.
(ii) Accordingly, the petition is allowed and by exercising
jurisdiction under Article 226 of the Constitution of India, the impugned
order dated 30.05.2025 is hereby quashed and the Indore Municipal
Corporation is directed to process the application for 'Work Completion
Certificate' independently, but expeditiously within a period of 30 days from
the date of receipt of certified copy of this order. Petitioner is also entitled to
get all the requisite permissions for completion of project in accordance with
permissible rules.
(iii) Writ petition stands disposed off.
(SANDEEP N. BHATT)
JUDGE
sh
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