Bangalore Medical Trust Vs. B.S. Muddappa & Ors [1991] INSC 161 (19 July 1991)
1991 Latest Caselaw 161 SC

Bangalore Medical Trust Vs. B.S. Muddappa & Ors [1991] INSC 161 (19 July 1991)

Thommen, T.K. (J) Thommen, T.K. (J) Sahai, R.M. (J)

CITATION: 1991 AIR 1902 1991 SCR (3) 102 1991 SCC (4) 54 JT 1991 (3) 172 1991 SCALE (2)131

ACT:

Town Planning.

Bangalore Development Authority Act, 1976: Sections 2(b), 2(bb), 15, 16(1)(d), 17, 19(4), 38, 38A and 65---Approved Scheme for development of the City--Space reserved for public park--Diversion and allotment to a private Trust for construction of hospital--Whether valid--Exercise of power to alter the Scheme--Whether valid--Power of the Government to issue directions to the statutory authority regarding the user of the site and allotment to a private body--Whether unrestricted--Whether statutory authority bound by Government's directions.

Constitution of India, 1950: Articles 32, 226--Public Interest Litigation--Object and scope of--Space reserved for public park-Diversion for construction of a hospital and allotment to a private body--Whether residents of locality have locus standi to challenge the action of the authori- ties.

Administrative Law--Administrative action--Discretion should be exercised objectively and rationally, when affect- ing public interest-Authority not to act whimsically or arbitrarily.

HEAD NOTE:

A site in the city of Bangalore was reserved as an open space in an improvement scheme adopted under the City of Bangalore Improvement Act. 1945. This Act was replaced by the Bangalore Development Authority Act, 1976 and the scheme prepared under the repealed enactment was deemed to have been prepared and duly sanctioned by the Government in terms of the new Act. In the scheme, the open space in question had been reserved for a public park. However, pursuant to the orders of the State Government, and by a Resolution, the Bangalore Development Authority allotted the open space in favour of the appellant, a private medical Trust, for the purpose of constructing a hospital. This allotment and diversion of the user of the site was challenged before the High Court by the respondents, as residents of the locality and as general public, contending that it was contrary to the provisions of the Act and the scheme sanctioned thereun- der, and the legislative intent to protect and preserve the environment by reserving open space 103 for ventilation, recreation and play grounds and parks for the general public.

A Single Judge of the High Court dismissed the Writ Petition holding that a hospital being a civic amenity, the allotment of the site by the BDA in favour of the appellant for the purpose of constructing a hospital was valid and in accordance with law, and, rejected the claim of the peti- tioners that the BDA had no power to alter the scheme, and in any event, a site reserved for a civic amenity could not have been allotted for construction of a hospital, on the ground that the scheme could be altered under Section 19(4) of the Act, and it was done with approval of State Govt.

On appeal, the Division Bench held that though the BDA had the authority to deal with the plot in question, the area, having been reserved in the sanctioned scheme for a public park, its diversion from that object and allotment in favour of a private body was not permissible under the Act, even if the object of the allotment was the construction of a hospital, since a hospital could not be considered to be an amenity in 1976, and that in alloting the site to the appellant-Trust, largesse was conferred on it in utter violation of law and rules, and set aside the allotment of the site in question to the appellant with liberty to the BDA to make a fresh allotment of any alternative site in favour of the appellant.

In appeal before this Court, on behalf of the appellant-trust, it was contended that the Division Bench exceeded its jurisdiction in setting aside an allotment which was purely an administrative action by the BDA pursu- ant to a valid direction by the Government in that behalf, that in the absence of any evidence of mala fide the deci- sion of the BDA was not liable to be interfered with, that the decision to allot a site for a hospital rather than a park was a matter within the discretion of the BDA and that the hospital being not only an amenity but also a civic amenity under the Act, as amended from time to time, the diversion of the user of the land for that purpose was justified, that under Section 65 the BDA was bound by all directions of the Government, irrespective of the nature or purpose of the directions, and that Section 38A prohibiting sale or any other disposal of land reserved for 'public parks or playgrounds and Section 16(1)(d) requiring that 15% of the total area of the lay out be reserved for public parks and playgrounds and an additional area of not less than 10% of the total area for civic amenities were enacted subsequent to the relevant orders of the Government dated 27.5.76 and 11.6.76 and the resolution of the BDA 104 dated 14.7.76 resulting in the allotment of the site in favour of the appellant and at the material time when the Government made these orders and the BDA acted upon them, there was no restriction on the diversion of the user of the land reserved for the public park or a playground to any other purpose.

On behalf of the respondents, it was contended that it was improper to confer a largesse on a private party at the expense of the general public and the special consideration extended to the appellant was not permissible under the Act, and that to allot in favour of the appellant an area re- served for public park even if it be for the purpose of constructing a hospital was to sacrifice the public interest in preserving the open spaces for ventilation, recreation and protection of the environment.

Dismissing the appeal, this Court, HELD: Per Sahai, J.

1. The entire proceedings before the State Government suffered from absence of jurisdiction. Even the exercise of power was vitiated and ultra vires. Therefore,the orders of the Government to convert the site reserved for public park to civic amenity and to allot it for private nursing home to the appellant Trust and the resolution of the Development Authority in compliance of it were null, void and without jurisdiction. [148C-D]

2.1 The purpose for which the Bangalore Development Authority Act, 1976 was enacted is spelt out from the pream- ble itself which provides for establishment of the Authority for development of the city and areas adjacent thereto. To carry out this purpose, the development scheme framed by the Improvement Trust was adopted by the Development Authority.

Any alteration in this scheme could have been made as pro- vided in Sub-Section (4) of Section 19 only if it resulted in improvement in any part of the scheme. A private Nursing Home could neither be considered to be an amenity nor it could be considered improvement over necessity like a public park. The exercise of power, therefore, was contrary to the purpose for which it is conferred under the statute. [141G- H]

2.2 The legislative mandate under Sec. 19(4) enables the Authority to alter any scheme. Thus, existence of power is clearly provided for. But the legislature took care to control the exercise of this power by linking it with im- provement in the scheme. What is an improve- 105 ment or when any change in the scheme can be said to be improvement is a matter of discretion by the authority empowered to exercise the power. [142C-D]

2.3 Sub-Section (4) of Section 19 not only defines the scope and lays down the ambit within which discretion could be exercised but it envisages further the manner in which it could be exercised. Therefore, any action or exercise of discretion to alter the scheme must have been backed by the substantive rationality flowing from the Section. [142E]

2.4 The exercise of power is further hedged by use of the expression if it appears to the Authority. In legal terminology it visualises prior consideration and objective decision. And all this must have resulted in conclusion that the alteration would have been improvement. [145G-H]

3.1 When legislature enacted Sub-Section (4), it une- quivocally declared its intention of making any alteration in the scheme by the Authority, that is, BDA and not the State Government. It further permitted interference with the scheme sanctioned by it only if it appeared to be improve- ment. Therefore, the facts that were to be found by the Authority were that the conversion of public park into private Nursing Home would be an improvement in the scheme.

Neither the Authority nor the State Government undertook any such exercise. Power of conversion or alteration in scheme was taken for granted. There is no whisper anywhere if it was ever considered, objectively, by any authority that the nursing home would amount to an improvement. Whether the decision would have been correct or not would have given rise to different consideration. But it was a total absence of any effort to do so. [144G-H, 145A, G]

3.2 The manner in which power was exercised fell below even the minimum requirement of taking action on relevant considerations. A scheme could be altered by the Authority, as defined under Section 3 of the Act. It is a body corpo- rate consisting of the Chairman and experts on various aspects. This Authority functions through committees and meetings as provided under Sections 8 & 9. The purpose of the Authority taking such a decision is their knowledge of local conditions and what was better for them. That is why participatory exercise is contemplated. Yet, without calling any meeting of the authority or any committee the Chairman sent the letter for converting the site. If any alteration could be done by the Chariman or the Chief Minister, then subsection (4) of Section 19 is rendered otoise. [145E, F, 146A-B] 106

3.3 Financial gain by a local authority at the cost of public welfare has never been considered as legitimate purpose even if the objective is laudable. Sadly the law was thrown to winds for a private purpose. The extract of the Chief Minister's order quoted in the letter of Chairman of the BDA leaves no doubt that the end result having been decided by the highest executive in the State, the lower in order of hierarchy only followed with 'ifs' and 'buts' ending finally with resolution of BDA which was more or less a formality. In less than ninety days, the machinery in BDA and Government moved so swiftly that the initiation of the proposal, by the appellant, a rich trust with foreign depos- its, query on it by the Chief Minister of the State, guid- ance of way out by the Chairman, direction on it by the Chief Minister, orders of Govt., resolution by the BDA and allotment were all completed and the site for public park stood converted into site for private nursing home without any intimation direct or indirect to those who were being deprived of it. [141A-C]

3.4 Speedy or quick action in public institutions call for appreciation but our democratic system shuns exercise of individualised discretion in public matters requiring par- ticipatory decision by rules and regulations. No one howso- ever high can arrogate to himself or assume without any authorisation express or implied in law a discretion to ignore the rules and deviate from rationality by adopting a strained or distorted interpretation as it renders the action ultra vires and bad in law. [141C-D]

3.5 There is no provision in the Act for alteration in a scheme by converting one site to another, except, of course if it appeared to be improvement- But even that power vested in the Authority, not the Government. The Authority should have applied its mind and must have come to the conclusion that conversion of the site reserved for public park into a private nursing home amounted to an improvement; then only it could have exercised the power. Instead, the application for allotment of the site was accepted first and the proce- dural requirements were attempted to be gone through later, and that too, by the State Government, which was not autho- rised to do so. The only role which the State Government could play in a scheme altered by the BDA is specified in Sub-Sections (5) and (6) of Section 19 of the Act, viz, the State Government could be concerned or involved with an altered scheme either because of the financial considera- tions or when additional land was to be acquired, an exer- cise which could not be undertaken by the BDA. A development scheme, therefore, sanctioned and published in the Gazette could not he altered by the Government. [146B, G-H, 147A] 107

3.6 Not only that the Authority did not apply its mind and take any decision if there was any necessity to alter the Scheme, but even if it is assumed that the State Govt.

could have any role to play, the entire exercise, instead of proceeding from below, that is, from the BDA to State GOv- ernment, proceeded in reverse direction, that is, from the State Government to the BDA. Every order, namely, converting the site from public park to private nursing home and even allotment to the applicant was passed by State Government and the BDA, acting like a true subservient body, obeyed faithfully by adopting and confirming the directions. It was complete abdication of power by the BDA. [146D-E]

3.7 The Legislature entrusted the responsibility to alter and approve the Scheme to the BDA, but the BDA in complete breach of faith reposed in it, preferred to take directions issued on command of the Chief Executive of the State. This resulted not only in error of law, but much beyond it. [146F]

3.8 Under Sub-Section (3) of Section 15, the State Government has power to direct the Authority to take up any scheme. The main thrust of the Sub-Section is to keep a vigil on the local body. But it cannot be stretched to entitle the Government to alter any scheme or convert any site or power specifically reserved in the Statute in the Authority which functions as a body. The general power of direction to take up development scheme cannot be construed as superseding specific power conferred and provided for under Section 19(4). Absence of power apart, such exercise is fraught with danger of being activated by extraneous considerations. [147D-E]

3.9 An exercise of power which is ultra vires the provi- sions in the Statute cannot be attempted to be resuscitated on general powers reserved in a Statute for its proper and effective implementation. Section 65 authorises the Govern- ment to issue directions to carry out purposes of the Act and to ensure that the provisions of law are obeyed, and not to empower itself to proceed contrary to law. What is not permitted by the Act to be done by the Authority cannot be assumed to be done by State Government to render it legal.

An illegality cannot be cured only because it was undertaken by the Government, or because it is done at the behest of the Chief Executive of the State. No one is above law. In a democracy what prevails is law and rule and not the height of the person exercising the power. [147G-H, 148A-B]

3.10 Amenity was defined in Section 2(b) of the Act to include road, street, lighting, drainage, public works and such other con- 108 veniences as the Government may, by notification, specify to be an amenity for the purpose of this Act and before any other facility could be considered amenity, it was necessary for State Government to issue a notification. And since no notification was issued including private nursing home as amenity, it could not be deemed to be included in it. That apart, the definition indicates that the convenience or facility should have had public characteristic. Even if it is assumed that the definition of amenity, being inclusive, it should be given a wider meaning so as to include hospital added in clause 2(bb), as a civic amenity with effect from 1984, a private nursing home, unlike a hospital run by Govt. or local authority, did not satisfy that characteristic which was necessary, in the absence of which it could not be held to be amenity on civic amenity. In any case, a private nursing home could not be considered to be an improvement in the scheme and, therefore, the power under Section 19(4) could not have been exercised. [145A-D]

4.1 Discretion is an effective tool in administration. But wrong notions about it result in ill-conceived conse- quences. In law it provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a Statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where Statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbi- trarily. It should be guided by reasonableness and fairness.

The legislature never intends its authorities to abuse the law or use it unfairly. [144E-G]

4.2 The executive or the administrative authority must not be oblivious that in a democratic set up the people or community being sovereign, the exercise of discretion must be guided by the inherent philosophy that the exerciser of discretion is accountable for his action, It is to be tested on anvil of rule of law and fairness or justice particularly if competing interests of members of society are involved. [144C-D]

4.3 When the law requires an authority to act or decide, if it appears to it necessary' or if he is 'of opinion that a particular act should be done', then it is implicit that it should be done objectively, fairly and reasonably. Deci- sions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to person affected yet the exercise of discretion is vitiated if the action is bereft of ration- ality, lacks objective and 109 purposive approach. The action or decision must not only be reached reasonably and intelligibly but it must be related to the purpose for Which power is exercised. Public interest or general good or social betterment have no doubt priority over private or individual interest but it must not be a pretext to justify the arbitrary or illegal exercise of power. It must withstand scrutiny of the legislative stand- ard provided by the Statute itself. The authority exercising discretion must not appear to be, impervious to legislative directions. No doubt, in modern State activity, discretion with executive and administrative agency is a must for efficient and smooth functioning. But the extent of discre- tion or constraints on its exercise depends on the rules and regulations under which it is exercised. [141E-F, 142F, D] Public park as a place reserved for beauty and recrea- tion is associated with growth of the concept of equality and recognition of importance of common man. Earlier free and healthy air in beautiful surroundings was privilege of few. But now it is a 'gift from people to themselves'. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. A private nursing home, on the other hand, is essentially a commercial venture, a profit oriented industry. Service may be its moto but earn- ing is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. [134A-C]

5.2 In 1984, the BD Act itself provided for reservation of not less than fifteen per cent of the total area of the lay out in a development scheme for public parks and play- grounds, the sale and disposition of which is prohibited under Sec. 38A of the Act. Absence of open space and public park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may give rise to health hazard. May be that it may be taken care of by a nursing home. But it is axiomatic that prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home. To say, therefore, that by conversion of a site reserved for low lying park into a private nursing home, social welfare was being promoted was being oblivious of true character of the two and their utility. [134D-F]

6.1 Locus standi to approach by way of writ petition and refusal to grant relief in equity jurisdiction are two different aspects, may be with the same result. One relates to maintainability of the petition and other to exercise of discretion. Law on the former has marched much ahead.

110 Many milestones have been covered. The restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of broad and wide construction in the wake of public interest litigation. Even in private chal- lenge to executive or administrative action having extensive fall out the dividing line between personal injury or loss and injury of a public nature is fast vanishing. [133B-C]

6.2 Law has veered round from genuine grievance against order affecting prejudicially to sufficient interest in the matter. The rise in exercise of power by the executive and comparative decline in power and effective administrative guidance is forcing citizens to expose challenges with public interest flavour. Therefore, it is too late in the day to claim that petition filed by inhabitants of a locali- ty whose park was converted into a nursing home had no cause to invoke equity juris diction of the High Court. In fact, public spirited citizens having faith in rule of law are rendering great social and legal service by espousing cause of public nature. They cannot be ignored or overlooked on technical or conservative yard stick of the rule of locus standi or absence of personal loss or injury. Present day development of this branch of jurisprudence is towards free movement both in nature of litigation and approach of the courts. Residents of locality seeking protection and mainte- nance of environment of their locality cannot be said to be busy bodies or interlopers. Even otherwise physical or personal or economic injury may give rise to civil or crimi- nal action but violation of rule of law either by ignoring or affronting individual or action of the' executive in disregard of the provisions of law raises substantial issue of accountability of those entrusted with responsibility of the administration. It furnishes enough cause of action either for individual or community in general to approach by way of writ petition and the authorities cannot be permitted to seek shelter under cover of technicalities of locus standi nor they can be heard to plead for restraint in exercise of discretion as grave issues of public concern outweigh such considerations. [133C-H] S.P. Gupta v. Union of India, [1982] 2 S.C.R. Akhil Bhartiya Sashit Karamchari Sangh v. U.O.I., AIR 1981 SC 293 and Fertilizer, Corporation Kamgar Union v. U.O.I., AIR 1981 SC 364, referred to.

Per Thommen J. (Concurring) 1.1 Apart from the fact that the scheme has not been validly altered by the Bangalore Development Authority, it was not open to the Government in terms of section 65 of the Bangalore Development Act, 1976 to give a direction to the BDA to defy the very object of the Act. The orders of the Government dated 27.5. 1976 and 11.6.1976 and the consequent decision of the BDA dated 111 14.7.1976 are inconsistent with, and contrary to, the legis- lative intent to safeguard the health, safety and general welfare of the people of the locality. These orders evidence a colourable exercise of power, and are opposed to the statutory scheme. [132B-D]

1.2 The orders in question and the consequent action of the BDA in allotting to private persons areas reserved for public parks and play grounds and permitting construction of buildings for hospital thereon are, in the circumstances, declared to be null and void and of no effect. [132D-E]

2.1 Under Sub-Section (4) of Section 19 of the Bangalore Development Authority Act, 1976 the BDA may, subject to certain restrictions contained in sub-sections (5) and (6), alter the scheme, but such alteration has to be carried out pursuant to a formal decision duly recorded in the manner generally followed by a body corporate. The scheme is a statutory instrument which is administrative legislation involving a great deal of general law-making of universal application, and it is not, therefore, addressed to individ- ual cases of persons and places, Alteration of the scheme must be for the purpose of improvement and better develop- ment of the City and adjoining areas and for general appli- cation for the benefit of the public at large. Any altera- tion of the scheme with a view to conferring a benefit on a particular person, and without regard to the general good of the public at large, is not an improvement contemplated by the Section. [122C-E] Shri Sitaram Sugar Company Limited & Anr. etc. v. Union of India & Ors., [1990] 1 SCR 909,937 et. seq. relied on.

2.2 Under Section 38, the BDA has the power, subject to such restrictions, conditions etc., as may be prescribed, to lease, sell or otherwise transfer any movable or immovable property which belongs to it, and to appropriate or apply any land vested in it or acquired by it for the formation of 'open spaces' or for building purposes or in any other manner for the purpose of any development scheme. This implies that land once appropriated or applied or earmarked by formation of 'open spaces' or for building purposes or other development in accordance with a duly sanctioned scheme should not be used for any other purpose unless the scheme itself, which is statutory in character, is formally altered in the manner that the BDA as a body corporate is competent to alter. But that power has to be exercised consistently with the appropriation or application of land for formation of 'open spaces' or for building purposes or any other development scheme sanctioned by the 112 Government. Any unauthorised deviation from the duly sanc- tioned scheme by sacrificing the public interest in the preservation and protection of the environment by means of open space for parks and play grounds and 'ventilation' will be contrary to the legislative intent, and an abuse of the statutory power vested in the authorities. Section 38A inserted by Amendment Act 17 of 1984 clarifies that it shall not be open to the BDA to dispose of any area reserved for public parks and play grounds and civic amenities. Any such site cannot be diverted to any other purpose. Any action in violation of this provision is null and void. [123F-H, 124A, D-E]

2.3 Section 16 treats 'public parks and play grounds' as a different and separate amenity or convenience from a 'civic amenity', and reserves 15% and 10% respectively for these two purposes. The extent of the areas reserved for these two objects are thus separately and distinctly stated by the Statute. The implication of the conceptual distinc- tion is that land reserved for a public park and play ground cannot be utilised for any 'civic amenity' including a hospital. [121B-C]

2.4 One of the main objects of public parks or play grounds is the promotion of the health of the community by means of ventilation and recreation. It is the preservation of the quality of life of the community that is sought to be protected by means of these regulations. [121E-F]

2.5 The legislative intent is to preserve a public park or public playground in the hands of the general public as represented by the BDA or any other public authority and prevent private hands from grabbing them for private ends. [126G]

3.1 The scheme provides for a public park and the land in question remains dedicated to the public and reserved for that purpose. It is meant for the reasonable accomplishment of the statutory object which is to promote the orderly development of the city and adjoining areas and to preserve open space by reserving public parks and play grounds with a view to protecting the residents from the ill-effects of urbanisation of the city in a way that maximum space is provided for the benefit of the public at large for recrea- tion, enjoyment, 'ventilation' and fresh air. This is clear from the Act itself as it originally stood. The amendments inserting sections 16(1)(d), 38A and other provisions are clarificatory of this object. The legislative intent has always been the promotion and enhancement of the quality of life' by preservation of the character and desirable aes- thetic features of the city., [128F-H, 129A-B] 113

3.2 The original scheme, duly sanctioned under the Act, includes a public park and the land in question has been reserved exclusively for that purpose. Although it is open to the BDA to alter the scheme, no alteration has been made in the manner contemplated by section 19(4). [127F]

3.3 The letters addressed by the Chairman of the BDA to the Chief Minister and the endorsement made by the Chief Minister on that letter as well as the orders of the Govern- ment sanctioning conversion of the low level park into a civic amenity site and alloting the same to the appellant and the resolution adopted by the BDA leave no doubt that the action of the Government and the BDA resulting in the resolution have been inspired by individual interests at the costs and to the disadvantage of the general public. Public interest does not appear to have guided the minds of the persons responsible for diverting the user of the open space for allotment to the appellant. Conversion of the open space reserved for a park for the general good of the public into a site for the construction of a privately owned and managed hospital for private gains is not an alteration for improve- ment of the scheme as contemplated by Section 19, and the orders in question in that behalf are a flagrant violation of the legislative intent and a colourable exercise of power. In the circumstances, no valid decision has been taken to alter the scheme. [127G-H, 128A, D-F]

3.4 The power of the Government to give directions to the Authority under section 65 is not unrestricted. The object of the directions must be to carry out the object of the Act and not contrary to it. Only such directions as are reasonably necessary or expedient for carrying out the object of the enactment are contemplated by section 65. If a direction were to be issued by the Government to lease out to private parties areas reserved in the scheme for public parks and play grounds, such a direction would not have the sanctity of section 65. Any such diversion of the user of the land would be opposed to the statute as well as the object in constituting the BDA to promote the healthy devel- opment of the city and improve the quality of'life. Any repository of power--be it the Government or the BDA--must act reasonably and rationally and in accordance with law and with due regard to the legislative intent. [127B-D]

3.5 The BD Act as enacted in 1976 has undergone several changes but the definition of 'amenity' in Clause (b) or Sec. 2 remains unchanged. Amenity includes various conven- iences such as "road, drainage, lighting etc. and such other conveniences" as are notified as 114 such by the Government. The section was amended in 1984, and to add clause (bb) after clause (b) which distinguished a civic amenity from amenity,and specified as civic amenities, such as dispensaries, maternity homes, etc. and those ameni- ties which are notified as civic amenities by the Govern- ment. Clause (bb) which was substituted by Act 11 of 1988 defines a civic amenity as, amongst others, a dispensary, a hospital, a pathological laboratory, a maternity home and such other amenity as the Government may by Notification specify. Thus, Clauses (b) and (bb) of Sec. 2 read together show that all those conveniences which are enumerated or notified by the Government under Clause (b) amenities and those amenities which are enumerated or notified by the Government under clause (bb) are civic amenities. Signifi- cantly, a hospital is specifically stated to be a civic amenity. However, the concept of amenity under clause (b) remains uncchanged, though, it is not clear from sub-clause (i) of clause (bb) whether a hospital, when is not run by the Government or a civic 'Corporation', but by a private body as in the instant case, would qualify as 'civic ameni- ty'. But the Act of 1988 was merely clarificatory of what was always the position and the hospital has always regarded as an 'amenity', if not a `civic amenity'. [119C-G, 120A]

4.1 Protection of the environment, open spaces for recreation and fresh air, play grounds for children prome- nade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by estab- lishing the BDA. [129C]

4.2 The public interest in the reservation and preserva- tion of open spaces for parks and play grounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attain- ment of a quality of life which makes the guaranteed rights a reality for all the citizens. [129D-E] Kharak Singh v. The State of U.P. & Others, [1964] 1 SCR 332; Municipal Council Ratlam v. Shri Vardhichand & Ors., [1981] 1 SCR 97; Francis Coralie Muffin v. The Administrator Union Territory of Delhi & Ors., [1981] 2 SCR 516; Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., [1985] 3 SCC 545; State of Himachal Pradesh 115

Deo Singh Tomar v. State of Bihar., AIR 1988 SC 1782, re- ferred to.

4.3 Reservation of open spaces for parks and play grounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the iII-effects of urban- isation. Crowded urban areas tend to spread disease, crime and immorality. [129G, 130G] Karnataka Town and Country Planning Act, 1961; Maharash- tra Regional and Town Planning Act, 1966; Bombay Town Plan- ning Act, 1954; The Travancore Town and Country Planning Act, 1120; The Madras Town Planning Act 1920; and the Rules framed under these Statutes; Town & Country Planning Act, 1971 (England & Wales); Encyclopaedia Americana, Volume 22, page 240; Encyclopaedia of the Social Sciences, Volume XII at page 161; Town Improvement Trusts in India, 1945 by Rai Sahib Om Prakash Aggarawala, p. 35; et. seq.; Halsbury's Statutes, Fourth Edition, p. 17; el. seq. and Journal of Planning & Environment Law, 1973, p. 130 et. seq. Penn Central Transportation Company v. City of New York, 57 L. Ed. 2d/631 438 US 104 1978; Village of Belle Terre v. Bruce Boraas, 39 L. Ed. 2d/797 416 US 1 1974 Village of Euclid v. Ambler Realty Company, 272 US 365 1926 Halsey v. Esso Petro- leum Co. Ltd., [1961] 1 WLR; Thomas J. Schoenbaum, Environ- mental Policy Law 1985 p. 438; et. seq. Summary and Comments 1980 10 E.L.R. 10125; et. seq. and Agins v. City of Tribu- ron, 447 US 255 1980, referred to.

Samuel Berman v. Andrew Parker, 99 L. Ed. 27 (348 US 26), referred to.

4.4 Any reasonable legislative attempt bearing a ration- al relationship to a permissible state objective in economic and social planning will be respected by the courts. A duly approved scheme prepared in accordance with the provisions of the Act is a legitimate attempt on the part of the Gov- ernment and the statutory authorities to ensure a quiet place free of dust and din where children can run about and the aged and the infirm can rest, breath fresh air and enjoy the beauty of nature. These provisions are meant to guaran- tee a quiet and healthy atmosphere to suit family needs of persons of all stations. Any action which tends to defeat that object is invalid. [131D-F] Village of Belle Terre v. Bruce Boraas, 39 L. Ed. 2d 797 416 US 1; Village of Euclid v. Ambler Realty Company, 272 U.S. 365 1926, and 116 T. Damodhar Rao & Ors. v. The Special Officer, Municipal Corporation of Hyderabad & Ors., AIR 1987 AP 171, referred to.

5. The residents of the locality are the persons inti- mately, vitally and adversely affected by any action of the BDA and the Government which is destructive of the environ- ment and which deprives them of facilities reserved for the enjoyment and protection of the health of the public at large. Being residents of the locality, the petitioners are naturally aggrieved by the orders in question, and they have, therefore, the necessary locus standi. [131H, 132A-B] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2750 of 1991.

From the Judgment and Order dated 13.9.89 of the Karna- taka High Court in W.A. No. 162 of 1989.

B.R.L. lyengar, S.S. Javali, R.V. Narasimhamurthi, E.C. Vidyasagar, G.V. Shantharaju, D.N.N. Reddy, Raju Ramachan- dran, K. Jagan Mohan Rao, M. Veerappa and R.P. Wadhwani for the appearing parties.

The Judgment of the Court was delivered by THOMMEN, J. Leave granted.

I have had the advantage of reading in draft the judg- ment of my learned Brother Sahai, J. and I am in complete agreement with what he has stated. It is in support of his reasoning and conclusion that I add the following words.

A site near the Sankey's Tank in Rajmahal Vilas Exten- sion in the City of Bangalore was reserved as an open space in an improvement scheme adopted under the City of Bangalore Improvement Act, 1945. This Act was repealed by section 76 of the Bangalore Development Authority Act, 1976 (Karnataka Act No. 12 of 1976) (hereinafter referred to as the "Act") which received the assent of the Governor on 2.3. 1976 and is deemed to have come into force on 20.12. 1975. By a notification issued under section 3 of the Act, the Govern- ment constituted the Bangalore Development Authority (the "BDA") thereby attracting section 76 which, so far as it is material, reads:

"S. 76. REPEAL AND SAVINGS (1) On the issue of the 117 notification under sub-section (1) of section 3 constituting the Bangalore Development Authority, the City of Bangalore Improvement Act, 1945 (Mysore Act 5 of 1945) shah stand repealed.

(2)......................

(3)......................

Provided further that anything done or any action taken (including any appointment notification rule, regulation, order, scheme or bye-law made or issued, any permission granted) under the said Act shall be deemed to have been done or taken under the correspond- ing provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act:

Provided also that any reference in any enactment or in any instrument to any provision of the repealed Act shall unless a different intention appears be construed as a reference to the corresponding provision of this Act. (emphasis supplied) Accordingly, the scheme prepared under the repealed enact- ment is deemed to have been prepared and duly sanctioned by the Government in terms of the Act for the development of Rajmahal Vilas Extension. In the scheme so sanctioned the open space in question has been reserved for a public park.

However, pursuant to the orders of the State Government dated 27.5.1976 and 11.6.1976 and by its resolution dated 14.7.1976, the BDA allotted the open space in favour of the appellant, a medical trust, for the purpose of constructing a hospital. This site is stated to be the only available space reserved in the scheme for a public park or play ground. This allotment has been challenged by the writ petitioners (respondents in this appeal)'who are residents of the locality on the ground that it is contrary to the provisions of the Act and the scheme sanctioned thereunder, and the legislative intent to protect and preserve the environment by reserving open space for 'ventilation', recreation and play grounds and parks for the general pub- lic. 118 The writ petitioners, being aggrieved as members of the general public and residents of the locality, have chal- lenged the diversion of the user and allotment of the site to private persons for construction of a hospital.

The learned Single Judge who heard the writ petition in the first instance found no merit in it and dismissed the same. He held that, a hospital being a civic amenity, the allotment of the site by the BDA in favour of the present appellant for the purpose of constructing a hospital was valid and in accordance with law. On appeal by the respond- ents (the residents of the locality) the learned Judges of the Division Bench held that, the area having been reserved in the sanctioned scheme for a public park, its diversion from that object and allotment in favour of a private body was not permissble under the Act, even if the object of the allotment was the construction of a hospital. The learned Judges were not impressed by the argument that the proposed hospital being a civic amenity, the Act did not prohibit the abandonment of a public park for a private hospital. Accord- ingly, allowing the respondents' appeal and without preju- dice to a fresh allotment by the BDA of any alternative site in favour of the present appellant, according to law, the writ petition was allowed and the allotment of the site in question was set aside.

The appellant's counsel submits that the learned Judges of the Division Bench exceeded their jurisdiction in setting aside an allotment which was purely an administrative action taken by the BDA pursuant to a valid direction issued by the Government in that behalf. He submits that in the absence of any evidence of mala fide the impugned decision of the BDA was impeccable and not liable to be interfered with in writ jurisdiction- He says that the decision to allot a site for a hospital rather than a park is a matter within the discre- tion of the BDA. The hospital, he says, is not only an amenity, but also a civic amenity under the Act, as it now stands, and the diversion of the user of the land for that purpose is justified under the Act.

The respondents, on the other hand, contend that it was improper to confer a largesse on a private party at the expense of the general public. The special consideration extended to the appellant, they say, was not permissible under the Act. To have allotted in favour of the appellant an area reserved for a public park, even if it be for the purpose of constructing a hospital, was to sacrifice the public interest in preserving open spaces for 'ventilation', recreation and protection of the environment- 119 The scheme is undoubtedly statutory in character. In view of the repealing provisions contained in section 76 of the Act, which we have in part set out above the impugned actions affecting the scheme will be examined with reference to the Act. The validity of neither the Act nor the scheme is doubted. The complaint of the writ petitioners (respond- ents) is that the scheme has been violated by reason of the impugned orders. The scheme, they point out, is a legitimate exercise of statutory power for the protection of the resi- dents of the locality from the ill effects of urbanisation, and the impugned orders sacrificing open space reserved for a public park is an invalid and colourable exercise of power to suit private interest at the expense of the general public.

The Act, as enacted in 1976, has undergone several changes, but the definition of 'amenity' in clause (b) of section 2 remains unchanged. 'Amenity' includes various 'conveniences' such as road, drainage, lighting etc. and such other conveniences as are notified as such by the Government.

Section 2 was amended in 1984 by Karnataka Act No. 17 of 1984 to add clause (bb), after clause (b), which distin- guished a 'civic amenity' from an 'amenity'. Certain ameni- ties were specified as civic amenities, such as dispen- saries, maternity homes etc. and those amenities which are notified as civic amenities by the Government.

By Act 11 of 1988, clause (bb) of section 2 was, w.e.f. 21.4. 1984, substituted by the present clause which defines a civic amenity as, amongst others, a dispensary, a hospi- tal, a pathological laboratory, a maternity home and such other amenity as the Government may by notification, speci- fy. Clauses (b) and (bb) of section 2 read together show that all those conveniences which are enumerated, or, noti- fied by the Government under clause (b), are `amenities'; and, all those amenities which are enumerated, or, notified by the Government under clause (bb), are 'civic amenities'.

Significantly, a hospital is specifically stated to be a 'civic amenity'. The concept of 'amenity' under clause (b), however, remains-unchanged. it is not clear from sub-clause (i) of clause (bb) whether a hospital which is not run by the Government or a civic 'Corporation' but, as in the present case, by a private body, would qualify as 'civic amenity'. Nor is it clear whether a hospital was either an `amenity' or a 'civic amenity' until it was specifically stated to be the latter by the Amendment Act 11 of 1988. The respondents (residents) 120 contend that a hospital did not have the status of an 'amen- ity' and much less a 'civic amenity' until Act 11 of 1988 so stated. But perhaps the appellant rightly contends that Act 11 of 1988 was merely clarificatory of what was always the position, and the hospital has always been regarded as an 'amenity', if not a 'civic amenity'. However, on the facts of this case, it is unnecessary to pursue this point fur- ther. Nor is it necessary to consider whether a privately owned and managed hospital, as in the present case, is an 'amenity' for the purpose of the Act.

The question really is whether an open space reserved for a park or play ground for the general public, in accord- ance with a formally approved and published development scheme in terms of the Act, can be allotted to a private person or a body of persons for the purpose of constructing a hospital? Do the members of the public, being residents of the locality, have a right to object to such diversion of the user of the space and deprivation of a park meant for the general public and for the protection of the environ- ment? Are they in law aggrieved by such diversion and allot- ment? To ascertain these points, we must first took at the relevant provisions of the Act.

Chapter III of the Act deals with 'development schemes'. The BDA is empowered to draw up detailed schemes for the development of the Bangalore Metropolitan Area. It may, with the previous approval of the Government, undertake from time to time any work for such development and incur expenditure therefor. The Government is also empowered to require the BDA to take up any development scheme or work and execute the same, subject to such terms and conditions as may be specified by the Government (See section 15).

Section 16 provides that such development schemes must provide for various matters, such as acquisition of land, laying and re-laying of land, construction and reconstruc- tion of buildings, formation and alteration of streets, drainage, water supply and electricity. In 1984 this section was amended by Act 17 of 1984 by inserting clause (d) so as to provide for compulsory reservation of portions of the layout for public parks and play grounds and also for civic amenities. Section 16(1)(d) provides:

"S. 46. PARTICULARS TO BE PROVIDED FOR IN A DEVELOPMENT SCHEME-Every development scheme under section 15: (1) shall, within the limits of the area com- prised in the scheme, provide for:

121 (d) the reservation of not less than fifteen per cent of the total area of the layout for public parks and play grounds and an addition- al area of not less than ten percent of the total area of the layout for civic amenities." This provision thus treats 'public parks and play grounds' as a different and separate amenity or convenience from a 'civic amenity'. 15% and 10% of the total area of the layout must respectively be reserved for (1) public parks and play grounds, and, (2) for civic amenities. The extent of the areas reserved for these two objects are thus separately and distinctly stated by the statute. The implication of this conceptual distinction is that land reserved for a public park and play ground cannot be utilised for any 'civic amenity' including a hospital.

16(2) says:

"S. 16(2) may, within the limits aforesaid, provide for- (b) forming open spaces for the better venti- lation of the area comprised in the scheme or any adjoining area;

The need for open space for 'better ventilation' of the area is thus emphasised by this provision. One of the main ob- jects of public parks or play grounds is the promotion of the health of the community by means of `ventilation' and recreation, It is the preservation of the quality of life of the community that is sought to be protected by means of these regulations.

Section 17 lays down the procedure to be followed on completion of a development scheme. It deals with, amongst other things, the method of service of notice on affected parties. Section 18 deals with the procedure for sanctioning the scheme. The BDA must submit to the Government the scheme together with the particulars such as plans, estimates, details of land to be acquired etc. and also representa- tions, if any, received from persons affected by the scheme.

On consideration of the proposed scheme, the Government is empowered under sub-section (3) of section 18 to accord its sanction for the scheme.

122 Section 19 says that when necessary sanction is accorded by the Government, it should publish in the Official Gazette a declaration as the sanction accorded and the land proposed to be acquired for the scheme. Sub-section (4) of section 19 says:

"19(4) If at any time it appears to the authority that an improvement can be made in any part of the scheme, the Authority may alter the scheme for the said purpose and shall subject to the provisions of sub- sections (5) and (6), forthwith proceed to execute the scheme as altered." This means that the BDA may, subject to certain restrictions contained in sub-sections (5) and (6), alter the scheme, but such alteration has to be carried out pursuant to a formal decision duly recorded in the manner generally followed by a body corporate. The scheme is a statutory instrument which is administrative legislation involving a great deal of general law-making of universal application, and it is not, therefore, addressed to individual cases of persons and places. Alteration of the scheme must be for the purpose of improvement and better development of the City of Bangalore and adjoining areas and for general application for the benefit of the public at large. Any alteration of the scheme with a view to conferring a benefit on a particular person, and without regard to the general good of the public at large, is not an improvement contemplated by the section.

See the principle stated in Shri Sitaram Sugar Company Limited & Anr. etc. v. Union of India & Ors., [1990] 1 SCR 909,937, et. seq.

Section 30 has not been amended, and, so far as it is material, reads:

"30. STREETS ON COMPLETION TO VEST IN AND BE MAINTAINED BY CORPORATION-- (2) Any open space including such parks and play grounds as may be notified by the Govern- ment reserved for ventilalion in any part of the area under the jurisdiction of the Author- ity as part of any development scheme sanc- tioned by the Government shall be transferred on completion to the Corporation for mainte- nance at the expense of the Corporation and shall thereupon vest in the Corporation.

(3). .............................................. ..

(emphasis supplied) 123 Sub-section (2) of this section thus refers to open space, including parks and play grounds, notified by the Government as reserved for `ventilation'. Section 31 prohibits transfer by sale or otherwise of sites for the purpose of construc- tion of buildings until all the improvements specified in section 30, including parks and play grounds, have been provided for in the estimates. Section 32 prohibits any person from forming any extension or layout for the purpose of construction of buildings without specific sanction of the BDA. Section 33 has empowered the Commissioner of the BDA to order alteration or demolition of buildings con- structed otherwise than in conformity with the sanction of the BDA. These provisions have not undergone any material change.

Chapter V of the Act deals with property and finance of the BDA. Section 38 reads:

"38. POWER OF AUTHORITY TO LEASE, SELL OR TRANSFER PROPERTY-Subject to such restric- tions, conditions and limitations as may be prescribed, the Authority shall have power to lease, sell or otherwise transfer any movable or immovable property which belongs to it, and to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any develop- ment scheme." (emphasis supplied) This section also has not undergone any material change. It says that, subject to such restrictions, conditions etc., as may be prescribed, the BDA has the power to lease, sell or otherwise transfer any movable or immovable property which belongs, to it, and to appropriate or apply any land vested in it or acquired by it for the formation of 'open spaces' or for building purposes or in any other manner for the purpose of any development scheme. This implies that land once appropriated or applied or earmarked by formation of 'open spaces' or for building purposes or other development in accordance with a duly sanctioned scheme should not be used for any other purpose unless the scheme itself, which is statutory in character, is formally altered in the manner that the BDA as a body corporate is competent to alter. This section, of course, empowers the BDA to lease or sell or otherwise transfer any property. But that power has to be exercised consistently with the appropriation or application of land for formation of 'open spaces' or for building purposes or any other development scheme sanctioned by 124 the Government. Property reserved for open space in a duly sanctioned scheme cannot be leased or sold away unless the scheme itself is duly altered. Any unauthorised deviation from the duly sanctioned scheme by sacrificing the public interest in the preservation and protection of the environ- ment by means of open space for parks and play grounds and 'ventilation' will be contrary to the legislative intent, and an abuse of the statutory power vested in the authori- ties. That this is the true legislative intent is left in no doubt by the subsequent amendment by Act 17'Of 1984, insert- ing section 38A, which reads:

"38A. PROHIBITION OF THE USE OF AREA RESERVED FOR PARKS, PLAY GROUNDS AND CIVIC AMENITIES FOR OTHER PURPOSES-The authority shall not sell or otherwise dispose of any area reserved for public parks and play grounds and civic amenities, for any other purpose and any disposition so made shall be null and void." (emphasis supplied) This amendment of 1984, which came into force on 17.4.84, is merely clarificatory of what has always been the legislative intent. The new provision clarifies that it shall not be open to the BDA to dispose of any area reserved for public parks and play grounds and civic amenities. Any such site cannot be diverted to any other purpose. Any action in violation of this provision is null and void.

The legislative intent to prevent the diversion of the user of an area reserved for a public park or play ground or civic amenity is reaffirmed by the Bangalore Development Authority (Amendment) Act, 1991 (Karnataka Act No. 18 of 1991) which came into force w.e.f. 16.1.1991, and which substituted a new section 38A in the place of the earlier provision inserted by Act 17 of the 1984. Section 2 of the Karnataka Act 18 of 1991 reads:

"S. 2. Substitution of section 38A--For sec- tion 38A of the Bangalore Development Authori- ty Act, 1976 (Karnataka Act 12 of 1976 (here- inafter referred to as the principal Act), the following shall be deemed to have been substi- tuted with effect from the twenty first day of April, 1984, namely:

`38A. Grant of area reserved for civic amenities etc: (1) The Authority shall have the power to lease, sell or 125 otherwise transfer any area reserved for civic amenities for the purpose for which such area is reserved.

(2) The Authority shall not sell or otherwise dispose of any area reserved for public parks and playgrounds and civic ameni- ties, for any other purpose and any disposi- tion so made shall be null and void-- Provided that where the allottee commits breach of any of the conditions of allotment, the Authority shall have right to resume such site after affording an opportuni- ty of being heard to such allottee." This new section 38A, as clarified in the Statement of Objects and Reasons and in the Explanatory Statement at- tached to L.A. Bill No. 6 of 1991, removed the prohibition against lease or sale or any other transfer of any area reserved for a civic amenity, provided the transfer is for the same purpose for which the area has been reserved. This means that once an area has been stamped with the character of a particular civic amenity by reservation of that area for such purpose, it cannot be diverted to any other use even when it is transferred to another party. The rationale of this restriction is that the scheme once sanctioned by the Government must operate universally and the areas allo- cated for particular objects must not be diverted to other objects. This means that a site for a school or hospital or any other civic amenity must remain reserved for that pur- pose, although the site itself may change hands. This is the purpose of sub-section (1) of section 38A, as now substitut- ed. Sub-section (2) of section 38A, on the other hand, emphasises the conceptual distinction between 'public parks and play grounds' forming one category or' 'space' and 'civic amenities' forming another category of sites. While public parks and play grounds cannot be parted with by the BDA for transfer to private hands by reason of their statu- tory dedication to the general public, other areas reserved for. civic amenities may be transferred to private parties for the specific purposes for which those areas are re- served. There is no prohibition, as such, against transfer of open spaces reserved for public parks or play grounds, whether or not for consideration, but the transfer is limit- ed to public authorities and their user is limited to the purposes for which they are reserved under the scheme. The distinction is that while public parks and play grounds are dedicated to the public at large for common use, and must therefore remain with the State or its instrumentalities, such as the BDA or a Municipal Corporation or any other authority, the civic amenities are not so dedicated, 126 but only reserved for particular or special purposes. This restriction against allotment of public parks and play grounds is further emphasised by section 3 of the Karnataka Act 18 of 1991 which reads:

"S.3. Validation of allotment of civic amenity sites--Notwithstanding anything contained in any law or judg-ment, decree or order of any court or other authority, any allotment of civic amenity site by way of sale, lease or otherwise made by the authority after the twenty-first day of April, 1984, and before the Seventh day of May, 1988 for the purposes specified in clause (bb) of Section 2 of the principal Act, shall, if such site has been made use of for the purpose for which it is allotted, be deemed to have been validly made and shall, have effect for all purposes as if it had been made under the principal Act, as amended by this Act and accordingly:

(i) all acts or proceedings, or things done or allotment made or action taken by the Authority shall, for all purposes be deemed to be and to have always been done or taken in accordance with law; and (ii) no suit or other proceedings shall be instituted, maintained or continued in any court or before any authority for cancellation of such allotment or demolition of buildings constructed on the sites so allotted after obtaining building licences from the Authority or the (local authority concerned or for questioning the validity of any action or) things taken or done under section 38A of the principal Act, as amended by this Act and no court shall enforce or recognise any decree or order'declaring any such allotment made, action taken or things done under the principal Act, as invalid." The evil that was sought to be remedied by the validation provision is in regard to allotment of "civic amenity sites", and not public parks or play grounds (see also the Explanatory Statement attached to the Bill). All these provisions unmistakably point to the legislative intent to preserve'a public park or public play ground in the hands of the general public, as represented by the BDA or any other public authority, and thus prevent private hands from grab- bing them for private ends. it must also be stated here that the validation clause relates to the period between 21.4. 1984 and 7.5. 1988 which was long after the impugned allot- ment.

127 Section 65 empowers the Government to give such direc- tions to the BDA as are, in its opinion, necessary or expe- dient for carrying out the purposes of the Act. It is the duty of the BDA to comply with such directions. It is con- tended that the BDA is bound by all directions of the Gov- ernment, irrespective of the nature or purpose of the direc- tions. We do not agree that the power of the Government under section 65 is unrestricted. The object of the direc- tions must be to carry out the object of the Act and not contrary to it. Only such directions as arc reasonably necessary or expedient for carrying out the object of the enactment are contemplated by section 65. If a direction were to be issued by the Government to lease out to private parties areas reserved in the scheme for public parks and play grounds, such a direction would not have the sanctity of section 65. Any such diversion of the user of the land would be opposed to the statute as well as the object in constituting the BDA to promote the healthy development of the city and improve the quality of life. Any repository of power--be it the Government or the BDA must act reasonably and rationally and in accordance with law and with due regard to the legislative intent.

It is contended on behalf of the appellant that section 38A prohibitin