IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.2252 OF 2023

1. Vasant Sudam Bhase ]
2. Sukhdeo Balu Tapkir ]
3. Dipali Dipak Hulavale ] .. Petitioners
Vs.
1. The State of Maharashtra, ]
Through Urban Development Department ]
2. The Pune Metropolitan Planning Committee ]
3. The Pune Metropolitan Region Development Authority ] .. Respondents

Ms. Neeta Karnik, with Mr. Suraj B. Chakor, for the Petitioners.
Dr. Birendra B. Saraf, A.G., with Mr. P.P. Kakade, G.P., Mr. A.K. Shinde, “B” Panel
Counsel and Ms. M.P. Thakur, AGP for Respondent Nos.1 and 2-State.
Mr. Yatin Malvankar, i/by Mr. Abhay A. Anturkar, for Respondent No.3-
PMRDA.

CORAM : A.S. CHANDURKAR &

ABHAY S. WAGHWASE, JJ

DATE : 2ND MARCH, 2023.

P.C. :

1. The challenge raised in this writ petition is to the Draft Development

Plan dated 30th July 2021 that has been prepared by the 3 rd respondent – Pune

Metropolitan Region Development Authority. According to the petitioners, since

the said Draft Development Plan has been prepared by the Metropolitan

Planning Committee that was not constituted in accordance with the provisions

of Article 243ZE of the Constitution of India as elected members of local bodies

were not included therein, the said Draft Development Plan was illegal.

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2. This writ petition was listed on 22 nd February 2023, when it was

informed that Writ Petition No.3652 of 2021, raising a similar challenge, was

pending. In that writ petition, on 3 rd August 2021, an ad-interim order was

passed, by which the respondents were directed not to act in furtherance of the

Government Resolution dated 16th July 2021 and it was further directed that no

decision be taken on the objections and suggestions till the next date. Hence, the

present writ petition was directed to be listed along with Writ Petition No.3652

of 2021. On 28th February 2023, Writ Petition No.3652 of 2021 came to be

withdrawn by the petitioners. Since the ad-interim relief granted on 3 rd August

2021 in that writ petition ceased to operate on withdrawal of the said writ

petition, the learned counsel for the petitioners herein prayed for grant of ad-

interim relief in the present writ petition. The learned Advocate General

representing the respondent no.1 as well as the learned counsel appearing for

respondent nos.2 and 3 sought time to file affidavit-in-reply. In this backdrop,

the learned counsel for the petitioners was heard on the question of ad-interim

relief.

3. The principal contention urged by the petitioners is that under the

provisions of Article 243ZE of the Constitution of India, for every metropolitan

area, a Metropolitan Planning Committee is required to be constituted, which

then prepares a Draft Development Plan for the metropolitan area. The State

Legislature is empowered to make provision with regard to the composition of

the Metropolitan Planning Committee as well as the manner in which the seats

in such committees are to be filled in. However not less than 2/3 rd of the
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members of such committee are required to be elected by and amongst elected

members of Municipalities and Chair-persons of Panchayats in the

metropolitan area in proportion to the ratio between the population of the

Municipalities and the Panchayats in that area. The Metropolitan Planning

Committee so constituted has to prepare the Draft Development Plan. By the

Government Resolution dated 16 th July 2021, the Pune Metropolitan Planning

Committee was constituted. However, 30 posts of members, that were required

to be filled in through elections from elected members of Municipalities and

Chair-persons of Panchayats, were kept vacant on the pretext that time would

be required for filling in said 30 posts. It is submitted that the Draft

Development Plan that has been prepared and published pursuant to the notice

dated 2nd August 2021 is not in accordance with Article 243ZE of the

Constitution of India since the Metropolitan Planning Committee has not been

properly constituted. These 30 posts were subsequently filled in by holding

Elections in 2022. The petitioners claim to be elected members of the Pune

Metropolitan Planning Committee and they have, in the aforesaid backdrop,

challenged preparation of the Draft Development Plan, that has been prepared

prior to the Metropolitan Planning Committee being validly constituted. It is

urged that if the Draft Development Plan is finalized, the situation would

become irreversible. Support is sought to be derived from the ad-interim order

dated 3rd August 2021 passed in Writ Petition No.3652 of 2021 referred to

here-in-above.

4. The learned Advocate General for respondent no.1 at the outset

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submitted that the challenge raised to the Draft Development Plan dated 30 th

July 2021 by the petitioners was highly belated inasmuch as the present writ

petition was filed in January 2023. There was no explanation given for

belatedly approaching the Court notwithstanding the fact that the petitioners

were Members of the Metropolitan Planning Committee. The petitioners being

aware of all these facts, they ought to have raised a challenge immediately after

the Draft Development Plan was published or at-least after they were elected as

Members of the Metropolitan Planning Committee. Without prejudice to the

aforesaid, it was submitted that presently the Draft Development Plan had been

published and suggestions / objections were invited from the public. The

petitioners could also object to the Draft Development Plan and in fact some

objections at the behest of petitioner no.1 had been received. Since the Draft

Development Plan would be finalized after considering all objections received,

there was no reason to grant any ad-interim order as prayed for by the

petitioners. It was submitted that the prayer for interim relief could be

considered after reply was filed by the respondents.

5. We may note that in the earlier writ petition raising a similar challenge,

this Court, on 3rd August 2021, had passed an ad-interim order after noting the

contentions of the parties and especially the fact that the Pune Metropolitan

Planning Committee at that point of time had not been constituted in

accordance with the mandate of Article 243ZE of the Constitution of India. The

said writ petition stands withdrawn and therefore the ad-interim order has

now ceased to operate. Thus, while granting time to the respondents to file their
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affidavit-in-reply, we have considered the prayer for grant of ad-interim relief.

Prima facie, it is the requirement of Article 243ZE of the Constitution of India

that while constituting a Metropolitan Planning Committee, not less than 2/3 rd

of its members shall be elected by and from amongst elected members of the

Municipalities and Chair-persons of the Panchayats in the metropolitan area.

One of the functions of the Metropolitan Planning Committee, as per Article

243ZE(3) of the Constitution of India, is preparation of the Draft Development

Plan. When the Draft Development Plan was published vide notice dated 2 nd

August 2021, 2/3rd members of the Metropolitan Planning Committee had not

been elected and these elections were held some time in October – November

2021. Thus, in effect, the Draft Development Plan, as prepared, was prior to the

election of 2/3rd of the members of the said committee. This factual aspect

cannot be ignored and for that reason, we are of the view that while the

exercise of calling for suggestions / objections to the Draft Development Plan

dated 30th July 2021 could be permitted to continue, the said Draft

Development Plan should not be finalized until further orders are passed in that

regard.

6. It is true that the present petitioners have raised a challenge to the Draft

Development Plan dated 30th July 2021 by filing the present writ petition in

January 2023. The challenge raised is based on violation of the mandate of

Article 243ZE of the Constitution of India. We cannot ignore the fact that in

Writ Petition No.3652 of 2021, the ad-interim order dated 3 rd August 2021

was operating till 28th February 2023, when the submissions of learned counsel
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for the parties were heard. In other words, the effect of the present ad-interim

order would only be in the nature of extending the ad-interim order that was

operating earlier in Writ Petition No.3652 of 2021, so as to maintain the

position that is prevailing from 3 rd August 2021. In any event, this contention

can be taken into consideration when the matter is heard on consideration of

the prayer for confirmation of the ad-interim order. We keep this aspect open

for being raised and considered at the appropriate stage.

7. Hence, while granting time of three weeks to the respondents to file their

affidavit-in-reply and further time of two weeks to the petitioners for filing

their affidavit-in-rejoinder, it is directed that though the respondent no.1 may

continue to receive suggestions / objections to the Draft Development Plan

dated 30th July 2021, the said Draft Development Plan shall not be finalized

without obtaining leave of the Court. This direction is subject to further orders

that would be passed in the writ petition while considering the request for

vacation / confirmation of this order.

8. Stand over to 2nd March 2023.

9. Parties to act on the authenticated copy of this order.

[ ABHAY S. WAGHWASE, J. ] [ A.S. CHANDURKAR, J. ]

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