Bombay High Court
Deepak Ashok Pote And Ors vs The State Of Maharashtra And Anr on 3 August, 2021
Author: S.G.Dige
Bench: A.A. Sayed, S.G.Dige
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3652 OF 2021
...
Deepak Pote & Ors. ...Petitioners
v/s.
The State of Maharashtra & Ors. ...Respondents
...
Dr.Milind Sathe, Sr.Advocate with Adv.Pralhad Paranjape, Adv.Manish
Kelkar and Adv.Druti Datar for the Petitioners.
Mr.A.A.Kumbhakoni, Advocate General with Mr.Akshay Shinde `B' Panel
Counsel and Mr.K.S.Thorat, AGP for the State.
...
CORAM : A.A. SAYED &
S.G.DIGE, JJ.
DATED : 3 AUGUST 2021 P.C.:
Leave to amend the Petition. Amendment to be carried out within 3 days. Re-verification is dispensed with. Amended copy of the Petition be served upon the Respondents.
2. This Petition has been filed by four Petitioners, who are elected Councillors of Respondent No.3-Pune Municipal Corporation, seeking the following reliefs:
"b) That this Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ of Certiorari or any appropriate writ, order or direction in the nature thereof under Article 226 of the Constitution of India:Uday.P.Kambli 1/9 ::: Uploaded on - 04/08/2021 ::: Downloaded on - 05/08/2021 01:18:40 ::: 2/9
12-wp-3652-2021.doc i. To quash and set aside the Government Resolution dated 16 July 2021 issued by Respondent No.1;
ii. To direct Respondent No.1 to constitute a "Metropolitan Planning Committee" only in accordance with Article 243-ZE of the Constitution of India and Section 3 of the Metropolitan Planning Committees Act; iii. To restrain the Respondent No.2 from acting and taking any decision as the Metropolitan Planning Committee for Pune Metropolitan Region in furtherance of its appointment by GR dated 16 July 2021;
3. Learned Senior Counsel for the Petitioners has invited our attention to Article 243-ZE of the Constitution of India which interalia deals with the composition of Committee for Metropolitan Planning and preparation of Draft Development Plan. It reads as follows:
"243ZE. Committee for Metropolitan Planning.-(1) There shall be constituted in every Metropolitan area a Metropolitan Planning Committee to prepare a draft development plan for the Metropolitan area as a whole.
(2) The Legislature of a State may, by law, make provision with respect to-
(a) the composition of the Metropolitan Planning Committee;
(b) the manner in which the seats in such Committees shall be filled;
Provided that not less than two-thirds of the members of such Committee shall be elected by, and from amongst, the elected Uday.P.Kambli 2/9 ::: Uploaded on - 04/08/2021 ::: Downloaded on - 05/08/2021 01:18:40 ::: 3/9 12-wp-3652-2021.doc members of the Municipalities and Chairpersons of the Panchayats in the Metropolitan area in proportion to the ratio between the population of the Municipalities and of the Panchayats in that area. ... ..."
4. Our attention is also invited to the provisions of Maharashtra Metropolitan Planning Committees (Constitution and Functions) (Continuance of Provisions) Act, 1999 (hereinafter referred to as `the said Act'). Chapter II of the said Act which contains sections 3 to 9, deals with the constitution and function of the Metropolitan Planning Committee. Section 3 of the said Act reads as follows:
"3. (1) There shall be constituted s Metropolitan Planning Committee for every Metropolitan area consisting of forty-five members as provided under sub-section (2) to prepare a draft development plan for the Metropolitan area as a whole.
(2) Every Metropolitan Planning Committee shall consist of the following members, namely:-
I. Ex Officio Members-
(a) Principal Secretary or Secretary to Government, Urban Development Department;
(b) Divisional Commissioner of the concerned Revenue Division.
II. Nominated Members-
(a) A person nominated by the State Government as the Chairperson;Uday.P.Kambli 3/9 ::: Uploaded on - 04/08/2021 ::: Downloaded on - 05/08/2021 01:18:40 ::: 4/9
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(b) Six members nominated by the State Government from amongst the Municipal Commissioners, Chief Officers of the Municipal Councils, the Chief Executive Officers of the Special Planning Authorities or New Town Development Authorities constituted under the Maharashtra Regional and Town Planning Act, 1966, and members of any other local authority, operating in the Metropolitan area.
c) Two members nominated by the State Government from amongst the Members of the Legislative Assembly and the Members of the Legislative Council, elected from the Metropolitan area;
(d) Four members nominated by the State Government who have experience and expertise in urban development, urban infrastructure, finance, urban transport, environment, industry and trade and urban community development.
III.Elected Members-
(a) Of the total number of members of the Metropolitan Planning Committee not less than two-thirds shall be elected by, and from amongst, the elected members of the Municipalities and Chairpersons of the Panchayats in the Metropolitan Area in proportion to the ratio between the population of the Municipalities and of the Panchayats in that area.
(b) ...
(c) ...
(d) ...
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IV. Special Invitees-
The following shall be special permanent invitees at all the meetings of the Metropolitan Planning committee and shall have a right to take part in the deliberations of the meetings of the Committee,-
(a) Five persons to be appointed by the State Government from amongst the Members of Parliament and the Members of the Maharashtra State Legislature, elected from, or ordinarily resident of, the Metropolitan area;
(b) Chief Executive Officers of the Maharashtra Jeevan Pradhikaran, Maharashtra Industrial Development Corporation, Maharashtra Housing and Area Development Authority, Maharashtra Pollution Control Board, Maharashtra State Electricity Board, Maharashtra State Road Transport Corporation;
(c) Director of Town Planning or the Deputy Director of Town Planning of the respective region;
(d) Representatives of Government of India organisations such as Railways, Telephones or Port Trusts, as the case may be.
(3) An officer of the rank not below the rank of Deputy Secretary to Government to be nominated by the State Government as the Secretary of the Metropolitan Planning Committee. Uday.P.Kambli 5/9 ::: Uploaded on - 04/08/2021 ::: Downloaded on - 05/08/2021 01:18:40 ::: 6/9
12-wp-3652-2021.doc (4) In the absence of the Chairperson at any meeting of the Metropolitan Planning Committee, the members may elect the Chairperson from amongst themselves to preside over the meeting."
5. Section 9 of the said Act, which deals with functions of the Metropolitan Planning Committee reads as follows:
"9. Functions of the Metropolitan Planning Committee shall be as follows:-
(a) to prepare a draft development plan for the Metropolitan area having regard to the plans prepared by the Municipalities and Panchayats in the Metropolitan area;
(b) to ensure the compliance of the provisions of clause (3) of article 243-ZE;
(c) to recommend through the Chairperson of Metropolitan Planning Committee the approved draft development plan to the State Government."
6. The contention of the learned Senior Counsel for the Petitioners is that the GR dated 16 July 2021 under which the appointment of members have been made to the Respondent No.2- Pune Metropolitan Planning Committee is contrary to Article 243-ZE of the Constitution as well as section 3 of the said Act. It is pointed out that 30 members i.e. two-thirds of the 45 members are to be appointed to the Respondent No.2-Pune Uday.P.Kambli 6/9 ::: Uploaded on - 04/08/2021 ::: Downloaded on - 05/08/2021 01:18:40 ::: 7/9 12-wp-3652-2021.doc Metropolitan Planning Committee by and from amongst the elected members of the Municipalities and Chairpersons of the Panchayats. It is submitted that by way of the said GR dated 16 July 2021, 15 members are directly appointed by the State Government under the categories of "Ex- officio members", "Nominated members" and "Chairpersons" and another 15 members appointed in the "Special Invitees" category from amongst members of Panchayats and members of Legislative Assembly/Council and not a single elected member of the Respondent No.3-Corporation has been appointed on the Respondent No.2-Pune Metropolitan Planning Committee, despite there being no impediment in appointing them. It is contended that the requirement of having 2/3rd elected representatives as provided in section 3 to be part of Metropolitan Planning Committee is an essential requirement mandated under the Constitution as well as the said Act cannot be given a go-bye.
7. Learned Senior Counsel for the Petitioners has pointed out that pursuant to the meeting of the Respondent No.2-Pune Metropolitan Planning Committee held on 29 July 2021, a Draft Development Plan for Pune Metropolitan Area submitted by the Regional Development Authority of Pune Metropolitan Region Area has been approved and published on 30 July 2021 under section 26(1) of the Maharashtra Regional & Town Uday.P.Kambli 7/9 ::: Uploaded on - 04/08/2021 ::: Downloaded on - 05/08/2021 01:18:40 ::: 8/9 12-wp-3652-2021.doc Planning Act, 1966 and objections and suggestions are invited from the public within a period of 30 days from the publication of the notice in the Maharashtra Government Gazette.
8. Learned Advocate General, on the other hand, has pointed out that the previous term of the members of the Respondent No.2-Pune Metropolitan Planning Committee which was constituted on 27 June 2016 has come to an end and the elections have been postponed on account of the prevalent pandemic and in view of the delay in the appointment of 30 members on the Committee through direct election, the appointment of 30 elected members was not made and the positions are kept vacant and 30 other members are appointed to the Committee who are interalia members of Parliament, members of Legislative Assembly/Council, Ex-officio members, Executive Officers of Local Self Government Institutions, Experts, Special Invitee members, CEO of State Government Undertakings, etc. Learned Advocate General has also invited our attention to section 7 of the said Act, which reads thus:
"7. No act or proceeding of the Metropolitan Planning Committee shall be invalid by reason of vacancy therein, or any defect in election or nomination of any member, if such act or proceeding is otherwise in accordance with the provisions of this Act."Uday.P.Kambli 8/9 ::: Uploaded on - 04/08/2021 ::: Downloaded on - 05/08/2021 01:18:40 ::: 9/9
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9. Having heard the learned Senior Counsel for the Petitioners and the learned Advocate General, in our prima facie view, the composition of the Respondent No.2-Pune Metropolitan Planning Committee is not in accordance with the mandate of Article 243-ZE of the Constitution as well as section 3 of the said Act. Inasmuch as presently objections and suggestions are invited from public to the Draft Development Plan, by way of ad-interim relief we direct that the Respondents shall not act in furtherance of the GR dated 16 July 2021 and no decision shall be taken on the objections and suggestions until the next date.
10. Let the Respondents file Affidavit-in-Reply by 11 August 2021 with copies to the other side. Affidavit-in-Rejoinder, if any, before the next date.
11. List the Petition on 17 August 2021.
(S.G.DIGE,J.) (A.A.SAYED, J.) Uday.P.Kambli 9/9 ::: Uploaded on - 04/08/2021 ::: Downloaded on - 05/08/2021 01:18:40 :::