Section 53 requires exclusion of land covered by development permission granted before scheme declaration.

Respondent No. 2 owned land measuring 1.368 hectares in Survey No. 36/1, Village Kumedi. The Joint Director, Town and Country Planning sanctioned a layout for industrial use on 26 September 2005.

Subsequently, the Indore Development Authority (“IDA”) resolved to frame Town Development Scheme No. 169-A on 11 July 2008, and the intention to prepare the scheme was published under Section 50(2) of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (“the Adhiniyam”) on 25 July 2008 and in the Gazette on 1 August 2008.

Respondent No. 2’s objection to inclusion of her land in the scheme was rejected by the IDA, following which she filed Revision No. 3 of 2011 before the Director, Town and Country Planning.

On 30 August 2011, the Director allowed the revision and directed that the land be excluded from Scheme No. 169-A because its layout had been sanctioned before publication of the declaration under Section 50(2).

The IDA challenged that order under Article 226 of the Constitution. An earlier dismissal of the writ petition was set aside in appeal, and the matter was remanded for decision on merits. The Supreme Court thereafter directed expeditious disposal of the writ petition, without being influenced by observations in the appellate order.

The IDA contended that inclusion of the land was necessary for implementation of Scheme No. 169-A and that mere sanction of a layout did not amount to completed development.

Respondent No. 2 relied on Section 53 of the Adhiniyam and precedents holding that land covered by a development permission granted before publication of the scheme declaration could not be included in the scheme.

1. Whether land covered by a layout or development permission sanctioned before publication of the declaration under Section 50(2) of the Adhiniyam could validly be included in Town Development Scheme No. 169-A.

2. Whether the Director, Town and Country Planning committed a jurisdictional error or patent illegality in allowing the respondent’s revision and directing exclusion of the land from the scheme.

3. Whether the High Court should issue a writ of certiorari under Article 226 to interfere with the Director’s reasoned order.

Section 53 of the Adhiniyam prohibits a person, after publication of the declaration to prepare a town development scheme, from instituting or changing land use or carrying out development within the scheme area, except in accordance with development authorised by the Director before publication of the declaration.

The Court interpreted this exception to mean that a layout or development permission granted before the Section 50(2) declaration is protected and constitutes a basis for excluding the concerned land from the scheme.

The Court relied on Chairman, Indore Development Authority v. Pure Industrial Coke & Chemical Ltd., (2007) 8 SCC 705, which requires strict construction of planning restrictions affecting property rights and balancing public planning objectives with the owner’s constitutional and human right to property.

It also followed UDA v. Geeta Totla, W.P. No. 7732 of 2016, affirmed in W.A. Nos. 1480 and 1481 of 2018 and by dismissal of the Supreme Court’s SLP, holding that land covered by a prior development permission could not be included in a subsequent development scheme.

Under the principles governing certiorari, including those stated in Central Council for Research in Ayurvedic Sciences v. Bikartan Das, (2023) 16 SCC 462, Article 226 jurisdiction is supervisory, not appellate; interference is warranted only for jurisdictional error, violation of natural justice, perversity, or an error of law apparent on the face of the record.

The Court found that the respondent’s layout had been sanctioned on 26 September 2005, nearly three years before publication of the declaration for Scheme No. 169-A on 1 August 2008.

Applying the express exception in Section 53, the Court held that the pre-existing sanction protected the respondent’s authorised development from the statutory freeze imposed by the scheme declaration.

The decisions in Geeta Totla and Pure Industrial Coke supported the conclusion that the planning authority could not include land with an earlier sanctioned layout merely because physical development had not been fully completed.

The Director’s order was therefore consistent with the statutory scheme and the governing precedents.

The IDA’s challenge essentially sought reappreciation of the merits and factual material, which was impermissible in certiorari proceedings. No jurisdictional error, perversity, arbitrariness, or patent illegality was established.

It held that the land covered by the layout sanctioned before publication of the Section 50(2) declaration was entitled to exclusion from Town Development Scheme No. 169-A under Section 53 of the Adhiniyam.

The Director’s order dated 30 August 2011 was upheld, and the writ petition was dismissed.

In view of the respondent’s advanced age and the prolonged pendency of the matter, the IDA was directed to release the land from the Town Planning Scheme and implement the order preferably within four weeks.