Supreme Court of India
BANGALORE MEDICAL TRUSTversusB.S. MUDDAPPA AND ORS.
- Citation
- 1991 INSC 160
- Decided
- 19 July 1991
- Disposal
- Dismissed
- Bench
- T K THOMMEN
Holding
The State Government’s orders and the BDA’s allotment were ultra vires; the alteration of the scheme was not authorized and the allotment to the private trust is null and void.
Summary
The Bangalore Development Authority (BDA) allotted a plot reserved for a public park in a development scheme to the Bangalore Medical Trust for a private nursing home/hospital, based on State Government orders and a BDA resolution. Residents of the locality challenged the diversion as contrary to the Bangalore Development Authority Act, 1976, which mandates that public park land be preserved and any alteration to a scheme must be for "improvement" and effected by the Authority, not the Government. The High Court upheld the allotment, but the Division Bench set it aside, holding the alteration invalid. On appeal, the Supreme Court held that the State Government lacked jurisdiction to direct the BDA to convert the park, the BDA’s exercise of power under Section 19(4) was ultra‑vires because a private hospital is not a civic amenity nor an improvement, and the procedural requirements for altering the scheme were not complied with. Consequently, the orders converting the park and the allotment to the Trust were declared null and void. The Court also affirmed the locus standi of the residents to sue in public‑interest litigation.
Issues considered
- Whether the State Government had authority under Section 65 of the Bangalore Development Authority Act, 1976 to direct the BDA to convert a public park into a civic amenity and allot it to a private trust
- Whether the BDA could validly alter the sanctioned development scheme under Section 19(4) to replace a public park with a private hospital/nursing home
- Whether a private hospital or nursing home qualifies as a "civic amenity" or constitutes an "improvement" within the meaning of the Act
- Whether the procedural requirements for altering a scheme (meeting of the Authority, formal decision) were complied with
- Whether the residents of the locality have locus standi to challenge the diversion of land reserved for public use
- Whether the orders and allotment are void and of no legal effect
Legislation cited
- Bangalore Development Authority Act, 1976s. 15, s. 16(1)(d), s. 19(4), s. 2(b), s. 2(bb), s. 38, s. 38A, s. 65
- City of Bangalore Improvement Act, 1945 (repealed)
- Karnataka Amendment Act 17 of 1984
- Karnataka Amendment Act 18 of 1991
Subjects
town planningpublic parkcivic amenityBangalore Development Authority Actscheme alterationadministrative lawultra virespublic interest litigationlocus standienvironmental protection
Judgment
BANGALORE MEDICAL TRUST
A
v.
B.S. MUDDAPPA AND ORS.
JULY 19, 1991
B [T.K. THOMMEN AND R.M. SAHA!, JJ.]
Town Planning.
Bangalore Development Authority Act, 1976: Sections 2(b),
2(bb), 15, 16( l)(d), 17, 19(4), 38, 38A and 65-Approved Scheme for
development of the City-Space reserved for public park-Diversion
C 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 regard-
ing the user of the site and allotment to a private body-Whether unres-
tricted-Whether statutory authority bound by Government's directions.
D Constitution of India, I950: Articles 32, 226---Pub/ic 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 authorities.
E Administrative Law-Administrative action-Discretion shquld be
exercised objectively and rationally, when affecting public interest-
Authority not to act whimsically or arbitrarily.
A site in the city of Bangalore was reserved as an open space in an
improvement scheme adopted under the City of Bangalore Improve-
F ment Act, 1945. This Act was replaced hy the Bangalore Development
Authority Act, 1976 and the scheme prepared m1der the repealed enact-
ment 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
G Development Authority allotted the open space in favour of the appel-
lant, 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 thereunder, and the legislative
H intent to protect and preserve the environment by reserving open space
102
MEDICAL TRUST v. B.S. MUDDAPPA 103
for ventilation, recreation and play grounds and parks for the general A
public.
A Single Judge of the ,High Court dismissed the Writ Petition
a
holding that a hospital being 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 B
of the petitioners 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
c
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 permissi-
ble under the Act, even if the object of the allotment was the construc-
tion of a hospital, since a hospital could not be considered to be an D
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.
E
In appeal before this Court, on behalf of the appellant-trust, it
was contended that the Division Bench exceeded its jurisdiction in set-
ting aside an allotment which was purely an administrative action by
the BDA pursuant to a valid direction by the Government in that
' behalf, that in the absence of any evidence of mala fide the decision of
the BDA was not liable to be interfered with, that the decision to allot a F
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 hut also a
civic amenity under the Act, as amended from time to time, the diver-
sion 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 G
38A prohibiting sale or any other disposal of land reserved for 'public
parks or playgrounds and Section 16(l)(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 He
104 SUPREME COURT REPORTS [1991) 3 S.C.R.
dated 14.7.76 resulting in the allotment of the site in favour of the
A
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.
B On behaif of the respondents, it was contended that it was impro-
per 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 reserved for public park even if it be for the purpose of cunstruct-
ing a hospital was to sacrifice the public interest in preserving the open
spaces for ventilation, recreation and protection of the environment.
c
Dismissing the appeal, this Court,
HELD: Per Sahai, J.
D I. The entire proceedings before the State Government suffered
from absence of jurisdiction. Even the exercise of power was vitiated
and ultra vires. Theref'ore,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 Develop-
ment Authority. in compliance of it were null, void and without
E jurisdiction. [148C-D)
2.1 The purpose for which the Bangalore Development Authority
Act, 1976 was enacted is spelt out from the preamble itself which pro-
vides. for establishment of the Authority for development of the city and
areas adjacent thereto. To carry out this purpose, the development
F scheme framed by the Improvement Trust was adopted by the Develop-
ment Authority. Any alteration in this scheme could have been made as
provided in Sub-Section (4) of Section 19 only if it resulted in improve-
ment 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. 1'he exercise of power,
G therefore, was contrary to the purpose for which it is conferred under
the statute. [141G-H)
2.2 The legislative mandate undt.· ';ec. 19(4) enables the Autho-
rity to alter any scheme. Thus, existei.. " of power is clearly provided
for. But the legislature took care to cu .. twl the exercise of this power
H by linking it with improvement in the 'rhcme. What is an improve-
MEDICAL TRUST v. B.S. MUDDAPPA 105
ment or when any change in the scheme can be said to be improve-
A
ment is a matter of discretion by the authority empowered to exer-
cise 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 bnt it
envisages further the manner in which it could be exercised. Therefore, B
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 ex-
pression if it appears to the Authority. In legal terminology it visua-
lises prior consideration and objective decision. And all this must
have resulted in conclusion that the alteration would have been c
improvement. [145G-H]
3.1 When legislature enacted Sub-Section (4), it unequivocally
declared its intention of making any alteration in the scheme by the
Authority, that is, BDA and not the State Government. It further D
permitted interference with the scheme sanctioned by it only if it
appeared to be improvement. 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. E
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. [J44G-H, 145A, G]
F
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 corporate 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 Autho- G
rity taking such a decision is their knowledge of local conditions and
what was better for them. That is why participatory exercise is contem-
plated. Yet, without calling any meeting of the authority or any com-
mittee the Chairman sent the letter for converting the site. If any altera-
tion could be done by the Chariman or the Chief Minister, then sub-
section (4) of Section 19 is rendered otoise. [145E, F, 146A-B] H
106 SUPREME COURT REPORTS I 1991] 3 S.C.R.
3.3 Financial gain by a local authority at the cost of public
A 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
B hierarchy only followed with 'ifs' and 'buts' ending finally with resolu-
tion 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
deposits, query on it by the Chief Minister of the State, guidance 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
c site for public park stood converted into site for private nursing home
without any intimation direct or indirect to those who were being de-
prived of it. [141A-C]
3.4 Speedy or quick action in public institutions call for apprecia-
D tion but our democratic system shuns exercise of individualised discre-
tion in public matters requiring participatory decision by rules and
regulations. No one howsoever 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 hy adopting a strained or
distorted interpretation as it renders the action ultra vires and bad 'in
E 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. Bnt even that power vested in the Authority, not the
Government. The Authority should have applied its mind and must
F 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
allot1nent of the site was ac1:epted first and the procedural requirements
were attempted to he gone through later, and that too, hy the State
Government, which was not authorised to do so. The only role which
G 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 considerations or when addi-
tional land was to be acqnired, an exercise which could not be underta-
ken by the BDA. A development scheme, therefore, sanctioned and published
H in the Gazette could not be altered hy the Government. [146B, G-H, 147A]
MEDICAL TRUST v. B.S. MUDDAPPA 107
3.6 Not only that the Authority did not apply its mind and take
any decision ifthere was any necessity to alter the Scheme, but even ifit A
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 Government, 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 B
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. [l46D-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 c
the Chief Executive of the State. This resulted not only in error of law,
but much beyond it. [I46F]
'
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 D
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
Anthority 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 E
of power apart, such exercise is fraught with danger of being activated
by extraneous considerations. [l47D-E]
3.9 An exercise of power which is ultra vires the provisions in ihe
Statute cannot be attempted to be resuscitated on general powers
reserved in a Statute for its proper and effective implementation. F
Section 65 authorises the Government 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 Governmeni to render it legal. An illegality cannot be
cured only because it was undertaken by the Government, or because it G
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 I.he power. [l47G-H, I48A-B]
3. IO Amenity was defiped in Section 2(b) of the Act to include
road, street, lighting, drainage, public works and such other con- H
108 SUPREME COL:RT REPORTS I 1991] 3 S.C.R.
veniences as the Government may, by notification, specify to be an
A
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
B should have had public characteristic. Even if it is assumed that the
definition of amenity, being inclusive, it should be given a wider mean-
ing 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 or
civic amenity. In any case, a private nursing home could not be con-
c sidered to be an improvement in the scheme and, therefore, the power
under Section 19(4) could not have been exercised. [I45A-D]
4.1 Discretion is an effective tool in administration. But wrong
notions about it result in ill-conceived consequences. In law it provides
D an option to the authority concerned to adopt one or the other alterna-
tive. But a better, proper and legal exercise of discretion is one where
the authority examines the fact, is aware of law and then decides objec-
tively 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
E where Statutes are silent and only power is conferred to act in one or the
other manner, the Authority cannot act whimsically or arbitrarily. 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
F 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. [l44C-D I
G 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 do11e objectively,
fairly and reasonably. Decisions affecting public interest or the neces-
sity 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 discre·
H tion is vitiated if the action is bereft of rationality, lacks objective and
MEDICAL TRUST v. B.S. MUDDAPPA 109
purposive approach. The action or decision must not only be reached
A
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 standard provided
by the Statute itself. The authority exercising discretion must not B
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 discretion
or constraints on its exercise depends on the rules and regulations under
which it is exercised. [141E-F, 142F, DJ
5.1 Public park as a place reserved for beauty and recreation .is c
associated with grawth 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 environ-
ment and pollution. In modern planning and development it occupies an D
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 earning 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]
E
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 playgrounds, the sale and disposition of
-. which is prohibited under Sec. 38A of the Act. Absence of open space
and public p3.rk, in present day when urbanisation is on increase, rural
exodus is on large scale and congested areas are coming up rapidly, may F
give rise to health hazard. May be that it may be taken care of by a
nursing horne. 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 ho1ne, social welfare was being
promoted was being oblivious of true character of the two and their G
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. L'!w on.the former has marched much ahead. H
110 SUPREME COt;i{[' REPORTS [1991] 3 S.C.F
Many milestones have been covered. The restricted meaning of
A
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 challenge to executive or administrative r-
action having extensive fall out the dividing line between personal
injury or loss and injury of a public nature is fast vanishing. [133B-C]
B
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 flied by inhabitants of a locality whose park
c 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 techni-
cal or conservative yard stick of the rule of locus standi or absence of
D 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
maintenance 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 criminal action but violation of rule of
E law either by ignoring or affronting individual or action of the" executive
in disregard of the provisions of law raises substantial issue of accounta-
bility 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
F nor they can be beard to plead for restraint in exercise of discretian 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
Soshit Karamchari Sangh v. U.O.l., AIR 1981 SC 293 and Fertilizer
Corporation Kamgar Union v. U. 0.1., AIR 1981 SC 364, referred to.
G
Per Thommen J. (Concurring) I.I 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
H 27.5.1976 and 11.6.1976 and the consequent decision of the BDA dated
MEDICAL TRUST v. B.S. MUDDAPPA 111
14. 7.1976 are inconsistent with, and contrary to, the legislative intent to
A
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. [1328-D]
1.2 The orders in question and the consequent action of the
BDA in allotting to private persons areas reserved for public parks B
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 Bangalor~
Development Authority Act, 1976 the BDA may, subject to certain
restrictions contained in sub-sections (5) and (6), alter the scheme, but c
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 D
places, Alteration of the scheme must be for the purpose of improve-
. ment and better development of the City 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. [122C-E] E
Shri Sitaram Sugar Company Limited & Anr. etc. v. Union of
India & Ors., [1990] 1SCR909, 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 p
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 hy formation of 'open
spaces' or for building purposes or other development in accordance G
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 appropri-
ation or application of land for formation of 'open spaces' or for build~
ing purposes or any other development scheme sanctioned by the H
112 SUPREME COURT REPORTS i1991] 3 S.C.R.
A Government. Any unauthorised deviation from the duly sanctioned
scheme by sacrificing the public interest in the preservation and protec-
tion of the environment by means of open space fo~ 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
B inserted by Amendment Act 17of1984 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 diffe-
c rent 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 dis-
tinction is that land reserved for a public park and play ground cannot
D 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]
E
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 ques-
F
tion 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
G
public at large for recreation, enjoyment, 'ventilation' and fresh air.
This is clear from the Act itself as it originally stood. The amendments
inserting sections 16(l)(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
H desirable aesthetic features of the city. [128F-H, l29A-B]
MEDICAL TRUST v. B.S. MUDDAPPA 113
3.2 The original scheme, duly sanctioned under'the Act, inclu-
A
des a public park and the land in question has been reserved exclusi-
vely for that purpose. Although it is open to the BOA to alter the
scheme, no alteration has been made in the manner contemplated by
section 19(4). [l27F]
3.3 The letters addressed by the Chairman of the BDA to the B
Chief Minister and the endorsement made by the Chief Minister on that
letter as well as the orders of the Government 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 disad-
vantage of the general public. Public interest does not appear to have
c
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 improvement of the scheme as contemp- D
lated 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, 0-F]
3.4 The power of the Government to give direCtions to the Au- E
thority 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 ohJect 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, F
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 develop-
ment of the city and improve the quality of life. Any repository of
power-be it the Government or the BOA-must act reasonably and
rationally and in accordance with law and with due regard to the G
legislative intent. [1278-0]
3.5 The BI> 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 conveniences such as "road,
drainage, lighting etc. and such other conveniences" as are notified as H
114 SUPREME COURT REPORTS I1991] 3 S.C.R.
such by the Government. The section was amended in 1984, and to add
A
clause (bb) after clause (b) which distinguished a civic amenity from
amenity ,and specified as civic amenities, such as dispensaries, mater-
nity homes, etc. and those amenities which are notified as civic ,.., ~
amenities by the Government. Clause (bb) which was substituted by Act
II of 1988 defines a civic amenity as, amongst others, a dispensary, a
B 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. Significantly, a
hospital is specifically stated to be a civic amenity. However, the con-
·-
c cept of amenity under clause (b) remains unchanged, though, 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 by a pri-
vate body as in the instant case, would qualify as 'civic amenity'.
But the Act of 1988 was merely clarificatory of what was always the
D position and the hospital has always regarded as an 'amenity', if not
a 'civic amenity'. [!19C-G, l20A]
,.
4.1 Protection of the environment, open spaces for recreation and
fresh air, play grounds for children promenade for the residents, and
other conveniences or amenities are matters of great public concern and
E of vital interest to he taken care of in a development scheme. It is that
public interest which is sought to be promoted by the Act by establish-
ing the BDA. [129CJ
4.2 The public interest in the reservation and preservation of
J
open spaces for parks and play grounds cannot be sacrificed by leasing
F or selling such sites to private persons for conversion to some other
user. Any such act would be contrary to the legislative intent and incon-
sistent 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 attainment of a quality of life which makes the
G guaranteed rights a reality for all the citizens. [129D-E]
Kharak Singh v. The State of U.P. & Others, [1964] I SCR 332; f
Municipal Council Railam v. Shri Vardhichand & Ors., [1981] I SCR
97; Francis Coralie Mullin v. 11ze Administrator Union Territory of
Delhi & Ors., [1981] 2 SCR 516; Olga Jellis & Ors. v. Bombay Munici-
H pal Corporation & Ors., [1985] 3 SCC 545; Srate of Himachal Pradesh
MEDICAL TRUST v. B.S. MUDDAPPA 115
& Anr. v. Urned Ram Sharma & Ors., AIR 1986 SC 847 and Vikram
A
Deo Singh Tomarv. State of Bihar., AIR 1988 SC 1782, referred 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 ill-effects of urbanisation. Crowded urban areas tend to spread B
disease, crime and immorality. Il29G, 130G]
Karnataka Town and Country Planning Act, 1961; Maharashtra
Regional and Town Planning Act, 1966; Bombay Town Planning 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);
c
Encyclopaedia Americana, Volume 22, page 240; Encyclopaedia of t~e
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; et. seq. and Journal of Plan-
ning & Environment Law, 1973, p. 130 et. seq. Penn Central Transpor- D
tation 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 l 1974
Village of Euclid v. Ambler Realty Company, 272 US 365 1926
Halsey v. Essa Petroleum Co. Ltd., [1961] 1 WLR; Thomas J.
Scboenbaum, Environmental Policy Law 1985 p. 438; et. seq.
Summary and Comments 1980 10 E.L.R. 10125; et. seq. and Agins v. E
City of Triburon, 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 rational rela- F
tionship 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 Government 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. G
These provisions are meant to guarantee a quiet and healthy atmosp-
here 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 I;
Vi/lag~ of Euclid v. Ambler Realty Company, 272 U.S. 365 1926, and H
116 SUPREME COURT REPORTS [1991] 3 S.C.R.
T. Damodhar Rao & Ors. v. The Special Officer, Municipal Cor.pora;,.;;..
A
tion of Hyderabad & Ors., AIR 1987 AP 171, referred to.
5. The residents of the locality are the persons intimately, vitally
and adversely affected by any action of the BDA and the Government
.which is destructive of the environment and which deprives them of
B facilities reserved for the enjoyment and protection of the health of the
public at large. Being residents of the locality, the petitioners are natur-
ally aggrieved by the orders in question, and they have, therefore, the
necessary locus standi. [13!H, 132A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2750
of 1991.
c
From the Judgment and Order dated 13.9.89 of the Karnataka
High Court in W.A. No. 162 of 1989.
B.R.L. Iyengar, S.S. Javali, R.V. Narasimhamurthi, E.C.
D Vidyasagar, G.V. Shantharaju, D.N.N. Reddy, Raju Ramachandran,
K. Jagan Mohan Rao. M. Veerappa and R.P. Wadhwani for the
appearing parties.
The Judgment of the Court was delivered by
E THOMMEN, J. Leave granted.
I have had the advantage of reading in draft the judgment 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. ·
F
A site near the Sankey's Tank in Rajmahal Vilas Extension in
the City of Bangalore was reserved as an open space in an improve-
ment scheme adopted under the City of Bangalore Improvement Act,
I
1945. This Act was repealed by section 76 of the Bangalore Develop- i
. ment Authority Act, 1976 (Karnataka Act No. 12 of 1976) (hereinafter
G 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 Government con-
stituted the Bangalore Developm.ent Authority (the "BOA") thereby
attracting sectio_n 76 which, so far as it is material, reads:
'
H "S. 76. REPEAL AND SA VIN GS ( 1) On the issue of the
MEDICAL TRUST v. B.S. MUDDAPPA [THOMMEN, J.I 117
notification under sub-section (1) of section 3 constituting
A
the Bangalore Development Authority, the City of Banga-
lore Improvement Act, 1945 (Mysore Act 5 of 1945) shall
,) stand repealed.
(2) ....................................... ' .........
B
(3) ....................................... ' .........
-
) Provided further that anything done or any action
taken (including any appointment. notification. rule, regu-
lation, 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 corresponding provi-
c
sions of this Act and shall continue to be in force accord-
ingly unless and until superseded by anything done or any
action taken under this Act:
Provided also that any reference in any enactment or D
_, in any instrument to any provision of the repealed Act shall
,, • unless a different intention appears be construed as a refe-
rence to the corresponding provision of this Act.
(4) ................................................
(emphasis supplied} E
Accordingly, the scheme prepared under the repealed enactment is
)
.,. deemed to have been prepared and duly sanctioned by the Govern-
ment 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. F
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 petitio-
G
ners (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 'ventila-
tion', recreation and play grounds and parks for the general public. H
118 SUPREME COURT REPORTS [1991] 3 S.C.R.
A The writ petitioners, being aggrieved as members of the general public
and residents of the locality, have challenged 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
B 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 BOA in
favour of the present appellant for the purpose of constructing a hospi-
ta! was valid and in accordance with law. On appeal by the respondents
(the residents of the locality) the learned Judges of the Division Bench ~
held that, the area having been reserved in the sanctioned ;dreme for a
public park, its diversion from that object and allotment in favour of a '
c 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 beinc a
civic amenity, the Act did not prohibit the abandonment of a pu~lic
park for a private hospital. Accordingly, allowing the respondents'
D appeal and without prejudice to a fresh allotment by the BOA 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
E Division Bench exceeded their jurisdiction in setting aside an allot-
ment which was purely an administrative action taken by the BOA
pursuant to a valid direction issued by the Government in that behalf.
He submits that in the absence of any evidence of ma/a fide the
impugned decision of the BOA was impeccable and not liable to be lf
interfered with in writ jurisdiction. He says that the decision to allot a
F site for a hospital rather than a park is a matter within the discretion of
the BOA. 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 impro-
G per 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
H of the environment.
MEDICAL TRUST v. B.S. MUDDAPPA [TH.OMMEN. J.] 119
•
.The scheme is undoubtedly statutory in character. In view of the fl
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 ihe Act. The validity of neither the Act
nor the scheme is doubted. The complaiht of the writ petitioners
(respondents) is that the scheme has been violated by rearnn of the
impugned orders. The scheme, they point out, is a legitimate exercise B
of statutory power for the protection of the residents of the locality
from the ill effects of urbanisation, and the impugned orders sacrific-
ing 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
c
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 ate notified as
such by the Government.
D
Section 2 was amended in 1984 by Karnataka Act No. 17 of 1984
to add clause (bb), after clause (b), which distinguished a 'civic
amenity' from ail 'amenity'. Certain amenities were specified as civic
amenities, such as dispensaries, maternity homes etc. and those
amenities which are notified as civic amenities by the Government.
E
By Act 11of1988, 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 hospital, a pathologicai laboratory, a
maternity home and such other amenity as the Government may by
aotification, specify. Clauses (b) and (bb) of section 2 read together
show that all ~hose conveniences which ate enumerated, or, notified F
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 O
amenity'. The concept of 'amenity' under clause {b), however.
remains. unchanged. It is not clear from sub-clause (i) of clause (hb)
whether a hospital which is hot run by the Government ot a civic
·corporation· but, as in the present case. by a private body, Would
qualify as 'civic amertity". Nor is it clear whether a hospital was either
ali 'amenity' or a ·civic amenity· Lintii it was specifically stated to be the H
latter by the Amendment Act 11 of 1988. The respondents (residents)
120 SUPREME COURT REPORTS [1991] 3 S.C.R.
• A contend that a hospital did not have the status of an 'amenity' 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 clarifi-
catory of· what was always the position, and the hospital has always ....
been regarded as an 'amenity', if not a 'civic amenity'. However, on
B the facts of this case, it is unnecessary to pursue this point further. 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 accordance with a formally
c approved and published development scheme in terms of the Act, tan
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
D for the protection of the environment? Are they in law aggrieved by
such diversion and allotment? To ascertain these points, we must first
look 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
E
approval of the Government, undertake from time to time any work
for such development and incur expenditure therefor. The Govern-
ment is also empowered to require the BDA to take up any develop-
ment 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
F
various matters, such as acquisition of land, laying and re-laying of
land, construction and reconstruction 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
G
16( l)(d) provides:
"S. 16. PARTICULARS TO BE PROVIDED FOR IN A
DEVELOPMENT SCHEME-Every development scheme
under section 15: (!) shall, within the limits of the area
H comprised in the scheme, provide for:
MEDICAL TRUST v. B.S. MUDDAPPA [THOMMEN, J.J 121
(d) the reservation of not less than fifteen per cent of the A
total area of the layout for public parks and play grounds
and an additional 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 B
and separate amenity or convenience from a 'civic amenity'. 15% and
10% of the total area of the layout must respectively be reserved for
(I) 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. C
Section 16(2) says: .
"S. 16(2) may, within the limits aforesaid, provide for-
D
(a)
(b) forming open spaces for the better ventilation of the
area comprised in the scheme or any adjoining area;
(c)
E
The need for open space for 'better ventilatfon' of the area is thus
emphasised by this provision. 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 F
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 BOA must submit to G
the Government the scheme together with the particulars such as
plans, estimates, details of land to be acquired etc. and also represen-
tations, if any, received from persons affected by the scheme. On
consideration of the proposed scheme, the Government is emp<iwered
under sub-section (3) of section 18 to accord its sanction for the
scheme. H
122 SUPREME COURT REPORTS [1991] 3 S.C.R.
Section 19 says that when necessary sanction is accorded by the
A
Government, it should publish in the Official Gazette a declaration as
to 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
B 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 BOA may, subject to certain restrictions con-
tained in sub-sections (5) and (6), alter the scheme, but such alteration
c 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 gene ml law-making of universal application, and it is not,
therefore, addressed to individual cases of persons and places. Altera-
tion of the scheme must be for the purpose of improvement and better
D development of the City of Bangalore and adjoining areas and for
general application for the benefit of the public at large. Any altera-
tion of the scheme with a view to conferring a benefit on a particular
pef'on, 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
E India & Ors., I 1990] I 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
F BE MAINTAINED BY CORPORATION-
( !)
(2) Any open space including such parks and play grounds
as may be notified by the Government reserved for ventila-
tion in any part of the area under the jurisdiction of the
G
Authority as part of any development scheme sanctioned
by the Government shall be transferred on completion to
the Corporation foi maintenance at the expense of the
Corporation and shall thereupon vest in the Corporation.
(3)
H
.(emphasis supplied)
MEDICAL TRUST v. B.S. MUDDAPPA [THOMMEN, J.] 123
Sub-section (2) of this section thus refers to open space, including
A
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 construction 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 B
buildings without specific sanction of the BOA. Section 33 has
empowered the Commissioner of the BOA to order alteration or
demolition of buildings constructed otherwise than in conformity with
the sanction of the BOA. These provisions have not undergone any
material change.
Chapter V of the Act deals with property and finance of the
c
BOA. Section 38 reads:
"38. POWER OF AUTHORITY TO LEASE, SELL OR
TRANSFER PROPERTY-Subject to such restrictions,
conditions and limitations as may be prescribed, the D
Authority shall have power to lease, sell or otherwise trans-
fer 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 build-
ing purposes or in any other manner for the purpose of any
development scheme." E
(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
BOA has the power to lease, sell or otherwise transfer any movable or
immovable property which belongs, to it, and to appropriate or apply F
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 G
...._ itself, which is statutory in character, is formally altered in the manner
that the BOA as a body corporate is competent to alter. This section,
of course, empowers the BOA 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 H
124 SUPREME COURT REPORTS [1991] 3 S.C.R.
the Government. Property reserved for open space in a duly sanc-
A
tioned scheme cannot be leased or sold away unless the scheme itself is
duly altered. Any unauthorised deviation from the cluly sanctioned
scheme by sacrificing the public interest in the preservation and pro-
tection of the environment by means of open space for parks and play
grounds alld 'ventilation' will be contrary to the legislative intent, and
B an abuse of the statutory power vested in the authorities. That this is the
true legislative intent is left in no doubt by the subsequent amendment
by Act 17'of 1984, inserting section 38A, which reads:
"38A. PROHIBITION OF THE USE OF AREA RE-
SERVED FOR PARKS, PLAY GROUNDS AND CIVIC
AMENITIE~ FOR OTHER PURPOSES-The authority
c 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)
D
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 BOA 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
E 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.
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 section 38A of the
Bangalore Development Authority Act, 1976 (Karnataka
G Act 12 of 1976 (hereinafter 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:
H (1) The Authority shall have the power to lease, sell or
MEDICAL TRUST v. B.S. MUDDAPPA (THOMMEN, J.J 125
otherwise transfer any area reserved for civic amenities for
A
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 amenities, for any other purpose and any disposition
so made shall be null and void- B
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 opportunity of
being heard to such allottee' ."
This new section 38A, as clarified in the Statement of Objects and
c
Reasons and in the Explanatory Statement attached 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 0
~.
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
allocated for particular objects must not be diverted to other objects.
This means that a site for a school or hospital or any other civic E
amenity must remain reserved for that purpose, although the site itself
may change hands. This is the purpose of sub-section ( 1) of section
38A, as now substituted. Sub-section (2) of section 38A, on the other
hand, emphasises the conceptual distinction between 'public parks and
play grounds' forming one. category of 'space' and 'civic amenihes'
forming another category of sites. While public parks and plav grounds F
cannot be parted with by the BOA for transfer to private hands by
reason of their statutory dedication to the general public, other areas
reserved for- civic amenities may be transferred to private patties for
the specific purposes for which those areas are reserved. 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 G
transfer is limited to public authorities and their user is limited to the
purposes for which they are reserved' under the scheme. The distinc-
tion 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 BOA or a Municipal Corpo-
ration or any other authority, the civic amenities are not so dedicated, H
126 SUPREME COURT REPORTS [1991] 3 S.C.R.
A 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-
B 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
c 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 allot-
D ment 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 autho-
E rity for cancellation of such allotment or. demolition of
buildings constructed on the sites so allotted after obtaining
building licences from the Authority onhe (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
F 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
G 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 BOA or any other public aumo-
rity, and thus prevent pnvate hands from grabbing them for private
ends. It must also be stated here that the validation clause relates to
H the period between 21.4.1984 and 7 .5,1988 which was long after the
impugned allotment.
MEDICAL TRUST v. B.S. MUDDAPPA [THOMMEN, J.l 127
Section 65 empowers the Government to give such directions to
A
the BDA as are, in its opinion, necessary or expedient for carrying out
the purposes of the Act. It is the duty of the BDA to comply with such
directions. It is contended that the BDA is bound by all directions of
the Government, 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 directions must be to carry B
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
c
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.
D
It is contended on behalf of the appellant that section 38A pro-
hibiting sale or any other disposal of land reserved for 'public parks or
\.
play grounds', and section 16(l)(d) requiring that 15 per cent of the
total area of the layout be reserved for public parks and play grounds,
and an additional area of not less than ten per cent of the total area of
the layout for civic amenities, were enacted subsequent to the relevant E
orders of the Government dated 27.5.1976 and 11.6.1976 and the
resolution of the BOA dated 14.7.76 resulting in the allotment of the
site in favour of the appellant. Counsel says that 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 land
reserved for a public park or play ground to any other purpose. F
Significantly, 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 ). It is, however, true that certain steps had been taken G
by the Government and the BOA to allot the open space in question to
the appellant. My learned brother Sahai, J. has referred to the letter
dated 21st April, 1976 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 Government dated 27th May,
1976 and I Ith June, 1976 sanctioning conversion of the low .level park H
128 SUPREME COURT REPORTS I1991] 3 S.C.R.
A
into a civic amenity site and allotting the same to the appellant. These
orders were followed by a resolution adopted by the BOA on 14th
July, 1976 reading as follows:
"393. Allotment of C.A. Site to Bangalore Medical Trust
for construction of Hospital in Rajmahal vilas Extension.
B
It was resolved-
The Government Order No. HMA 249 MNG 76
Bangalore dt. 17.6.1976 regarding allotment of C.A. site
situated next to the land allotted to H.K.E. Society in
Rajmahal vilas Extension, Bangalore, in favour of Banga-
c lore Medical Trust for construction of Hospital to read and
recorded with confirmation for further action in the
matter'."
These documents leave no doubt that the action of the Government
D and the BOA resulting in the resolution dated 14th July, 1976 have
been inspired by individual interests at the costs and to the disad-
vantage 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
E for the construction of a privately owned and managed hospital for
private gains is not an alteration for improvement of the scheme as
contemplated by section 19, and the impugned orders in that behalf
are a flagrant violation of the legislative intent and a colourable exer-
cise of power. In the circumstances, it has to be.concluded that no
valid decision has been taken to alter the scheme. The schem·e pro-
F vi des for a public park and the land in question remains dedicated to
the public and reserved for that purpose. It is not disputed that the
only available space which can be utilised as a public park or play
ground and which has been reserved for that purpose is the space
under consideration.
G The scheme is meant for the reasonable accomplishment of the
statutory object which is to promote the orderly development of the .......
City of Bangalore and adjoining areas and to preserve open spaces by
reserving public parks and play grounds with a view to protecting the
residents from the ill-effects of urbanisation. It is meant for the
development of the city in a way that maximum space is provided forthe
H benefit of the public at large for recreation, enjoyment, 'ventilation'
MEDICAL TRUST v. B.S. MUDDAPPA (TIIOMMEN, J.] 129
and fresh air. This is clear from the Act itself as it originally stood. The
A
amendments inserting sections 16(1)(d), 38A and other provisions are
.,, clarificatory of this object. The very purpose of the BOA, as a statu-
tory authority, is to promote the Jiealthy growth and development of
the City of Bangalore and the area adjacent thereto. The legislative
intent has always been the promotion and enhancement of the quality
of life by preservation of the character and desirable aesthetic features B
of the city. The subsequent amendments are not a deviation from or
alteration of the original legislative intent, but only an elucidation or
affirmation of the same.
' ·~,
Protection of the environment, open spaces for recreation and
fresh air, play grounds for children, promenade for the residents, and
other conveniences or amenities are matters of great public concern
c
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
establishing the BOA. The public interest in the reservation and
preservation of open spaces for parks and play grounds cannot be
sacrificed by leasing or selling such sites to private persons for conver- D
.,. sion to some other user. Any such act would be contrary to the legisla-
tive intent and inconsistent with the statutory requirements. Further-
• more, 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 attainment of a quali_ty of
life which makes the guaranteed rights a reality for all the citizens. E
See Kharak Singh v. The State of U.P. & Others, [19641 1 SCR 332;
Municipal Council, Ratlam v. Shri Vardhichand & Ors., [19811 1 SCR
97; Francis Coralie Mullin v. The Administrator, Union Territory of
·{,
Delhi & Ors., [198112 SCR 516; Olga Tellis & Ors. v. Bombay Munici-
pal Corporation & Ors., [1985] 3 SCC 545; State of Himachal Pradesh
& Anr. v. Urned Ram Sharma & Ors., AIR 1986 SC 847 and Vikram F
Deo Singh Tomar v. State of Bihar, AIR 1988 SC 1782.
Reservation of open spaces for parks and play grounds is univer-
sally recognised as a legitimate exercise of statutory_power rationally
related to the protection of the residents of the locaiity from the ill-
effects of urbanisation. See for e.g: Karnataka Town and Country G
-~ Planning Act, 1961; Maharashtra Regional and Town Planning Act,
1966; Dombay Town Planning 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 H
130 SUPREME COURT REPORTS [1991] 3 S.C.R.
161; Town lmporvement Trusts 111 India. 1945 by Rai Sahib Orn
A
Prakash Aggarawala, p. 35; et. seq.: Hu/sbury"s Statutes, Fourth
Edition, p. 17 et. seq. and Journal of Planning & Environment Law,
1973, p. 130 et. seq. See also: 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 I (1974)]; Village of
B Euclid v. Ambler Realty Company, 272 US 365 (1926) and Halsey v.
Essa Petroleum Co. Ltd., [1961] l WLR 683.
In Agins v. City of Tiburon, 447 US 255 ( 1980), the Supreme Court
of the United States upheld a zoning ordinance which provided· ... it
is in the public interest to avoid unnecessary conversion of open space
land to strictly urban uses, thereby protecting against the resultant
c impacts, such as ...... pollution, .... destruction of scenic beauty,
disturbance of the ecology and the environment, hazards refated to
geology, fire and flood. and other demonstrated consequences of
urban sprawl". Upholding the ordinance. the Court said:
D " .... The .State of California has determined that the
development of local open-space plans will discourage the
"premature and unnecessary conversion of open-space
land to urban uses". The specific zoning regulations at
issue are exercises of the city "s police power to protect the
residents of Tiburor. from the ill-effects of urbanization.
E Such governmentai purposes long have been recognized as
legitimate.
The zoning ordinances benefit the appellants as well
public by serving the city's interest in assuring careful and .\
orderly development of residential property with provision
F for open-space areas .... See comments on this decision
by Thomas J. Sehoenbaum, Environmental Policy Law,
1985 p. 438 et. seq. See also Summary and Comments,
[ 1980] JO E.L.R. 10125 et. seq."
l'he statutes in force in India and abroad reserving open ~paces
G for parks and play grounds are the legislati-;e attempt to eliminate the
misery of disreputable housing condition caused by urbanisation. .J..
Crowded urban areas tend to spread disease, crime and immorality.
As stated by the U.S. Supreme Court in Samuel Berman v. Andrew
Parker, 99 L. Ed. 27 348 US 26:
" .... They may also suffocate the spirit by reducing the
•
MEDICAL TRUST v. B.S. MUDDAPPA (THOMMEN, J.l 131
people who live there to the status of cattle. They may
A
indeed make living an almost insufferable burden. They
may also be an ugly sore, a blight on the community which
robs it of charm, which makes it a place from which men
turn. The misery of housing may despoil a community as an
open sewer may ruin a river.
B
..... The concept of the public welfare is broad and
inclusive .... The values it represents are spiritual as well
as physical, aesthetic as well as monetary. It is within the
power of the legislature to determine that the community
should be beautiful as well' as healthy, spacious as well ·as
clean, well-balanced as well as carefully patrolled. Jn the
present case, the Congress and its authorized agencies have
c
made determinations that take into account a wide variety
of v1lues ..... " ..
(Per Douglas, J.).
Any reason~ legislative attempt bearing a rational relation- D
ship 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 atten1pt on
the part of the Government 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 E
nature. These provisions are meant to guarantee a quiet and healthy
atmosphere to >uit family needs of persons of all stations. Any action
which tends to defeat that object is invalid. As stated by the U.S.
-r. Supreme Court in Village of Belle Terre v. Bruce Boraas, 39 L. Ed. 2d
797 416 us 1:
F
" .... The police power is not confined to elimination of
filth, stench, and unhealthy places. It is ample to lay out
zones where family values, youth values, and the blessings
of quiet seclusion and clean air make the area a sanctuary
ior people".
G
See also Village of Euclid v. Ambler Realty Company, 272 U.S. 365
1926. See the decision of the Andhra Pradesh High Court in T. Damo-
dhar Rao & Ors. v. The Special Officer, Municipal CorporatiOn of
Hyderabad & Ors., AIR 1987 AP 171.
The residents of the locality are the persons intimately, vitally H
132 SUPREME COURT REPORTS ( 1991] 3 S.C.R.
A and adversely affected by any action of the BOA and the Government
which is destructive of the environment and which deprives them of
facilities reserved for the enjoyment and protection of the health of the
public at large. The residents of the locality, such as the writ petitio-
ners. are naturally aggrieved by the impugned orders and they have,
therefore, the necessary locus standi.
B
Jn the circumstances, we are of the view that, apdrt from the fact
that the scheme has not been validly altered by the BDA, it was not
open to the Government in terms of section 65 to give a direction to
the BDA to defy the very object of the Act.
c The impugned orders of the Government dated 27 .5.1976 and
l l.6.1976 and the consequent decision of the BOA dated 14.7.1976 are
inconsistent with, and contrary to, the legislative 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.
D
The impugned orders and the consequent action of the BOA 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.
E R.M. SAHAI, J. Public park or private nursing home which
serves public interest, better, is itself an interesting issue in this appeal
directed against order of the Karnataka High Court, apart, from if the
conversion of the site from park to hospital was in accordance with law
and whether a private hospital was an amenity or civic amenity under
the Bangalore Development Authority Act (Act 12 of 1976) (in brief
F the Act) and in any case could it be considered as an improvement,
under Section 19( 4) of the Act, if so whether the authorities while
doing so acted within the constraints of law.
Factual martix is quite simple and plain. But before narrating it
or entering into merits of variQus issue~ -~t is imperative to sort out at
G the threshold if a private nursing home with modern facilities and
sophisticated instruments is more conducive to the public interest than
a park as it was stressed that even if the conversion of the site suffered
....
from any infirmity procedural or substantive the High Court should
have refrained from exercising its extraordinary jurisdiction and that
also in favour of those residents many of whom did not have their
H houses around the park and thus could not be placed in the category of
. MEDICAL TRUST v. B.S. MUI'DAPPA .(SAHA!, J.l 133
persons aggrieved. It was also emphasised that the hospital with
A
research centre and even free service being more important from
social angle the inhabitants of th~ locality could not be said to suffer
any injury much less substantial injury.
Locus standi to approach by way of writ petition and refusal to
grant relief in equity jurisdiction are two different aspects, may be with B
same result. One relates to maintainability of the petition and other to
exercise of discretion. Law on the former has marched much ahead.
Many milestones have been covered. The restricted meaning of
aggrieved person and narrow outlook of specific in jury has yielded in
favour of broad and wide construction in wake of public interest litiga-
. tion. Even in private challenge to executive or administrative action
having extensive fall out the dividing line between personal injury or
c
loss and injury of a public nature is fast vanishing. 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 proper and effective administra-
tive guidance is forcing citizens to espouse challenges with public D
interest flavour. It is too late in the day, therefore, to claim that
petition filed by inhabitants of a locality whose park was converted
,. into a nursing home had no cause to invoke equity jurisdiction 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 E
conservative yardstick of the rule of locus standi or absence of
personal loss or injury. Present day development of this branch of
jurisprudence is towards freer movement both in nature of litigation
and approach of the courts. Residents of locality seeking protection
and maintenance of environment of their locality cannot be said to be
busy bodies or interlopers S.P. Gupta v. Union of India, [1982] 2 SCR F
985=AIR 1982 SC 149; Akhil Bhartiya Soshit Karamchari Sangh v.
U.O.I., [1981] 1 SCC 246=AIR 1981 SC 293 and Fertilizer Corpora-
tion Kamgar Union v. U.O.I., AIR 1981 SC 364. 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 ignonng or affronting
individual or action of the executive in disregard of the provisions of G
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 H
134 SUPREME COURT REPORTS [1991] 3 S.C.R.
public concern outweigh such considerations.
A
Public park as a place reserved for beauty and recreation was
developed in 19th and 20th Century and is associated with growth of
the concept of equality and recognition of importance of common
m. n. Earlier it was a prerogative of the aristocracy and the affluent
B either as a result of royal grant or as a place reserved for private
pleasure. 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. Jn
modern planning and development it occupies an important place in
social ecology. A private nursing home on the other hand is essentia-
c lity a commercial venture, a profit oriented industry. Service may be
its moto but earning 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. No town planner would pre-
pare a blue print without reserving space for it. Emphasis on open air
and greenery has multiplied and the city or town planning or develop-
D ment acts of different States require even private house-owners to
leave open space in front and back for lawn and fresh air. 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 playgrounds the sale and disposition of which is prohibited
under Section 38A of the Act. Absence of open space and public park,
E in present day when urbanisation is on increase, rural exodus is on
large scale and congested areas are coming up rapidly, may given 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
F for low lying into a private nursing home social welfare was being
promoted was being oblivious of true character of the two and their
utility.
Merits, too, raise issues of far reaching importance. One of them
being the efficacy of exercise of individualised discretion where law or
G the rules contemplate participatory objective decision or conclusion.
Another is the requirement of substantive fairness in dealings by 1'-·
government or local bodies or public institutions with people of any
strata of society uniformly and equally. To begin with the factual set-
ting in which the controversy arose it is undisputed that the City
Improvement Board constituted under City of Bangalore Improve-
H ment Act, 1945, prepared the development scheme for bringing into
MEDICAL TRUST v. B.S. MUDDAPPA [SAHA!, J.) 135
existence an extension of the City of Bangalore which came to be
A
known as the Palace Upper Orchards/Sadashiv Nagar, later came to be
known as Raj Mahal Vilas Extension. Jn this an area facing, the
Sankey tank, was earmarked for being developed as a low level park.
Jn 1976 the Improvement Act was repealed and replaced by Act 12 of
1976 which came into force with effect from December, 1975. Section
76 of the Act while repealing Improvement Act by Section .76 saved the 8
scheme by proviso Second to Sub-Section (3) of the Section and pro-
, vided that it shall be deemed to have been done under corresponding
provisions of the Act. The Act received the assent in March 1976. And
in the same month the Chairman of the Bangalore Development
Authority received a communication from the Chief Minister of the
State that the Bangalore Medical Trust, the appellant (referred as
BMT) was keen to have the plot reserved for park as nursing home . c
.On it the Chairman, without any meeting of any Co!llmittee or the
Development Authority, wrote a le.tier to the Chief Minister on 21st
April, 1976, the contents of which are extracted below:
"No. PS. 56/76-77 D
"f Encl . .One 131ue Print.
r Respected sir,
Re: Grant ,of land to Bangalore Medical Trust for
,construction of a n'ursing home. E
.......
~i:
The Bangalore Medical Trust have applied to your
goodself on 30.3.1976 for grant of vacant land situated next
to that given to H.K.E. Society, Rajmahal Vilas Exten- F
sion, on which you have passed orders "Chairman, BDA-A
suitable site for ·!he proposed ·hospital building may be
given.
l herewith enclose a blue-print showing the location
·of !he ;;aid !)lot, which they have requested. In the blue G
-~ ·print approved by the erstwhile City Improvement Trust
Board, Bangalore, this site is marked as a Low Level Park,
which measures approximately 13,485 sq. yds. This is a low
level .area when compared to the surrounding -ground level.
The sponsors of Bangalore Medical Trust are very keen to
secur~ this land for their use to construct a nursing home H
136 SUPREME COURT REPORTS (1991) 3 S.C.R.
with eminent specialists to cater meoical relief to the needy
A
public.
In the first instance, it has to be approved by the
Government to convert this low level park as a civic
amenity site. Secondly Government has to approve the
B allotment of the said land to the Bangalore Medical Trust
as a Civ.ic Amenity Site. Therefore, I seek your kind orders
in the matter,.how I should act.
With warm regards,
Yours sincerely.
c sd//-."
On it the Chief Minister made an endorsement is his ciwn hand
which reads as under:
D "This area which was allowed to be kept for laying a park
may be converted into C.A. Site. Another simiiar bit kept
for the same purpose has been given away for Education
Society some years back. And this remaining area is said to
be not suitable for park."
E In consequence of the direction by the Chief Minister the
Government on 27th May, 1976 converted the s.ite from public park to
a civic amenity. Copy of the order is extracted below:
"Subject: Grant of land to Bangalore Medical Trust for \
construction of a Nursing Home.
F
ORDER NO. HMA249MNG76DATEDBANGA-
LORE THE 27TH MAY 1976.
G READ; Letter No. PS 56/7-0-77 dated 21.4.1976 from
the Chairman, Bangalore Developinent Authority,
Bangalore.
PREAMBLE;
H The Chairman, Bangalore Development Authority
MEDICAL TRUST v. B.S. MUDDAPPA (SAHA!, J.] 137
has requested for sanction of Government to the conver-
sion of the low level park, next to the land allotted to the A
HKE Society, in Rajmahal Vilas Extension as a C.A. Site
and to the allotment of the said site to the Bangalore Me<li-
cal Trust for the construction of a Nursing Home.
ORDER B
Sanction is accorded to the conversion of the Low
Level Park, situated next to the land allotted to the H.K.E.
r
Society in Rajmahal Vilas Extension, Bangalore as a civic
amenity site.
By order and in the name of the c
Governor of Karnataka
sd/-
. (S.R. Shankaranarayana Rao
I/c. Under Secretary to Government
Health & Municipal Admn. Deptt." D
It was followed by another order dated 17th June, 1976, sanc-
tioning the lease to the BMT. The order reads as under:
"Subject: Allotment of a C.A. site to Bangalore Medical
Trust for Construction of a hospital. E
ORDER NO. HMA 249 MNG 76, BANGALORE
DATED THE 17THJUNE, 1976 .
•
F
READ; (1) Govt. Order No. PLM 18 MNG 64
dated 17th March, 1964.
2) Govt. Order No. HMA 249 MNG 76
dated 27th May, 1976.
G
3) Letter No. PS 132/76-77 dated 1st June,
1976 from the Chairman, Bangalore Deve-
lopment Authority, Bangalore.
PREAMBLE;
H
138 SUPREME COURT REPORTS [1991] 3 S.C.R.
A Sanction was accorded to convert a low level park
situated next to the land allotted to H.K.E. Society in
Rajmahal Vilas Extension, Bangalore vide Govt. Order
read at (ii) above.
Now the Chairman, Bangalore Developrr.wt
B Authority requests for lease of the aforesaid Civic Amenity
Site to the Bangalore Medical Trust, Bangalore.
ORDER
Sanction is accorded to the lease of Civic Amenity
Site situated next to the land allotted to HKE Society in
c Rajmahal Vilas Extension Bangalore to the Bangalore
Medical Trust for construction of hospital with conditions
of lease as detailed in the Govt. Order No. PLM 18 MNG
64, dated 17th March, 1964.
b The trust should strictly adhere to the condition no. 7
of the lease and should complete the building well within 3
years.
By Order and in the name of
Governor of Karnataka
E sd-
(K.G. Rajanna)
Under Secretary to Government
Health & Municipal Admn. Deptt."
On 14th July the Bangalore Development Authority (hheinafter
F referred as BOA) completed the formality by passing the resolution
and allotting the site to the BMT. The resolution reads as under:
"The Government Order No. HMA 249 MNG 76 Banga-
lore dated the 17th June 1976 regarding allotment of C.A.
Site situated next to the land allotted to H.K.E. Society in
G Rajmahal Vilas Extension, Bangalore in favour of Banga-
lore Medical Trust for construction of hospital be read and
recorded with confirmation for further action in the
matter .."
On coming to know of the allotment in 1981, when some con-
H struction activity was noticed by the residents, they approached the
MEDICAL TRUST v. B.S. MUDDAPPA (SAHA!, J.l 139
High Court by way of writ petition on which the learned single Judge
-
A
framed two issues:
"( 1) Whether the land had become the property of the
Corporation and therefore the allotment of land by the
BO A· in favour of the fourth respondent was illegal and
invalid? B
(2) Even assuming that the ownership of the land had not
been transferred to the Corporation, whether the action of
the BOA in allotting the land, originally earmarked for a
park, for construction of a nursing home and a hospital, io
the fourth respondent is illegal and invalid?
c
Both the issues were answered in the negative. On the first it was
held that even though building and street etc. were transferred to the
Corporation by the State Govt. by a notification issued under Section
23( 1) of the Act no such notification under Sub-Section (2) of Section
23 was issued in respect of open space etc. therefore the site reserved D
for public park did not vest in the Corporation and it continued with
the BOA which could deal with it. The finding was affirmed by the
Division Bench as well. Its correctness was not assailed by the respon-
dents, in this Court. As regards the second question the learned Judge
while agreeing with the Division Bench in Holy Saint Education
Society v. Venkataamana, !LR 1982 1 Karnataka P. l. that 'a site E
reserved for children's playground under the scheme prepared under
the City Improvement Act when came to be vested in the Corporation,
it was under a duty to retain it as such and it had no authority to divert
it for any other use or grant it to a private person or organisation; held
that the ratio was not helpful as, 'both under the provisions of the City
Improvement Act and the BOA Act, the CIT or the BOA, as the case F
may be, had the authority to improve the scheme by making alteration
in the scheme and in exercise of the said power, the purpose for which
any space was reserved, could be changed and after such change is
effected the land could be disposed of for the purpose for which it is
earmarked after such change.' The Judge held that since the site
reserved for public park was converted under order of the Govern- G
mcnt it was not possible to hold that the land in que3tion was reserved
for a park. It was further held, that, 'since only notification allotting
the site was challenged and not the conversion of site from public park
to private nursing home and once the scheme was altered and the area
rese~·ved for park was converted to be an area reserved for civic
amenity the contention of the petitioners that the BOA had allotted i-1
- 140 SUPREME COURT REPORTS [1991) 3 S.C.13'.
A the site for a purpose other than to which the land was reserved, had
no basis at all for the fact that after alteration brought about by
Government under order dated 27th March, 1976, the site in question
was only reserved for a civic amenity generally and not for a part .-..
specially.'
B Two other subsidiary submissions which in fact are now the
principal issues, "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" also did not find favour as the
scheme could be altered under Section 19(4) of the Act and it was done
with approval of State Govt. In appeal the Division Bench after
examining inclusive definition of civic amenity in Section 2(bb), added
c in 1984, amended with retrospective effect in 1983 held that a hospital
could not be considered to be an amenity in 1976 as, "public amenity
civic or otherwise to be a public convenience for purposes of the BDA
Act, the Government has to notify. If it does not specify whatever may
otherwise be a public convenience will not be a civic amenity or
D amenity under clauses (bb) and (b) of Section 2 respectively for
purposes of the BD Act. "The Bench further held that in allowing the
site to the BMT largess was conferred on it in utter violation of law and
rules.
Did the Division Bench commit any error of law? Was the con-
E version of site in accordance with law? Were any of the authorities
aware or apprised of the provisions under which they could convert a
site reserved for public park into a nursing home? Did the authorities
care to ascertain the provisions of law or rules under which they could
act? Was any precaution taken by the Chief Executive of the State to
adhere to legislative requirement of. altering any scheme. Not in the
F least. The direction of the Chief Minister, the apex public functio-
nary of the State, was in breach of public trust, more like a person
dealing with his private property than discharging his obligation as
head of the State administration in accordance with !aw and rules.
The Govt. record depicted even more distressing picture. The role of
the administration was highly disappointing. In their noting even a
G show of awareness of law and fact was missing. This culture of public
functionary, adorning highest office in the State of being law to himself
and the administration acting on dictate, for whatever reason disturbs
the balance of rule of law. What is more shocking is that this happened
in 1976 and not even one out of various departments from which the
papers were routed through raised any objection. And the statutory
H body like BDA with impressive members too succumbed under the
pressure without, even, a murmur.
__
,
MEDICAL TRUST v. B.S. MUDDAPPA [SAHA!, J.l 141
Financial gain by a local authority at the cost of public welfare
.-
A
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 BD A 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 resolu- B
ti on of BD A which was more or less a formality. Between 21st April
and 14th July, 1976, that is less than ninety days, the machinery in
BDA and Government moved so swiftly that the initiation of the pro-
posal, by the appellant a rich trust with 90,000 dollars in foreign
r deposits, query on it by the Chief Minister of the State, guidance 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. Speedy or quick action in public institutions cal~
c
for appreciation but our democratic system shuns exercis~ of individua-
lised discretion in public matters requiring participatory decision. by D
rules and regulations. No one howsoever high can arrogate to himself
~
or assume without any authorisation express or implied in law a discre-
~. tion 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. 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 E
should be done' then it is implicit that it should be done objectively,
fairly and reasonably. Decisions affecting public interest or the neces-
sity 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 dis-
cretion is vitiated if the action is bereft of rationality lacks objective
and purposive approach. The action or decision must not only be F
reached reasonably and intelligibly but it must be related to the
purpose for which power is exercised. The purpose for which the Act
was enacted is spelt out from the Preamble itself which provides for
establishment of the Authority for development of the city of Banga-
lore and areas adjacent thereto. To carry out this purpose the develop-
ment scheme framed by the Improvement Trust was adopted by the G
,)_ Development Authority. Any alteration in this scheme could have
been made as.provided in Sub-Section (4) of Section 19 only if it
resulted in improvement in any part of the scheme. As stated earlier 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 H
.. 142 SUPREME COURT REPORTS
for which it is conferred under the statute.
(1991) 3 S.C.R.
A
Was the exercise of discretion under Sub-Section (4)-0f Section
19 in violation or in accordance with the norm provided in law. For
~
proper appreciation the Sub-Section is extracted below:
B "(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-section (5) and (6)
forthwith proceed to execute the scheme as altered."
c This legislative mandate enables the Authority to alter any scheme.
Existence of power is thus clearly provided for. What is the nature of
this power and the manner of its exercise? It is obviously statutory in
character. The legislature took care to control the exercise of this
power by linking it with improvement in the scheme. What is an
improvement or when any change in the scheme can be said to be
D improvement is a matter of discretion by the authority empowered to
exercise the power. In modern State activity discretion with executive
~
and administrative agency is a must for efficient and smooth function-
ing. But the extent of discretion.or constraints on its exercise depen~s· .i
on the rules and regulations under which it is exercised. Sub-Section
(4) of Section 19 not only defines the scope and lays down the ambit
E within which the 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 habe been backed by
substantive rationality flowing from the. Section. Public interest or
general good or social betterment have no doubt priority over private )-'
or individual interest but it must not be a preiext to justify the
f arbitrary or illegal exercise of power. It must withstand scrutiny of the
legislative standard provided by the Statute itself. The authority exer-
cising discretion must not appear to be, impervious to legislative direc-
tions. From the extracts of correspondence between the Chairman and
the Chief Minister it is apparent that neither of them cared to look into
the provisions of law. It was left to the learned Advocate General to
G defend it, as a matter of law, in the High Court. 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 consicleraiion. But.here it was total absence of any effect to
do so. Even in the reply filed on behalf of BDA in the High Court
tt which appears more a Iega_~juggI:ry than stateme~t of facts bristling
~
'
lt
MEDICAL TRUST v. B.S. MUDDAPPA [SAHAI, J.] 143
with factual inaccuracies there is no mention of it. The extent of mis-
leading averments for purpose of creating erroneous impressions on
the Court shall be clear from the statement contained in paragraph 1 of
the affidavit relevant portion of which is extracted below:
"The fourth respondent had made an application for grant
of land for purpose of constructing a Nursing Home. This
application was made also to this Respondent. Considering
the fact that the medical facilities available in Bangalore
were meagre and were required to be supplemented by
charitable medical institutions, this authority was required
to ascertain whether a suitable site could be given for the
hospital building of the fourth ·respondent. Upon scrutiny
of the Rajmahal Vilas Extension, as early as in 1976, the
c
area in question which had been marked as a low level park
measuring 13485 sq. yards was found suitable to ·cater to
the medical relief to the needy public. However, since the
said area had been marked as a low level park, it was neces-
sary to convert the said low level park as civic amenity site. D
Furthermore, it is essential that the Government had to
approve allotment of the site to the fourth respondent as a
civic amenity site. There are proceedings before the first
respondent in relation to allotment of site to public institu-
tions. Under the recommendations which has been made, it
was decided that plots could be allotted to public institu-. J:l
tions subject to certain conditions."
It was this statement which resulted in erroneous finding by the
learned single Judge to the effect. "Therefore, it is clear that though at
the time of preparation of the scheme, formation of a park was con-
sidered in the interest of the general public, nothing prevents the BO A · F ·
from taking. the view that the construction of a hospital to provide
medical facilities to the general·public is necessary and therefore, the
area earmarked for park should be converted into a civic amenity site.
It is in exercise of this power, the BOA decided to convert the area.
reserved for park into a civic amenity site so as to enable its disposal in
favour of the fourth respondent for construction of a hospital. Though G
Section 19(4) does not expressly require the taking of the approval of
the Government for such alteration, the approval was necessary as the
original scheme in which the area was reserved for a park had been.
approved by the Government. Therefore, the BDA considered
appropriate, and in my opinion rightly, to seek the approval of the
Government for making such conversion:· The State. Government !'I
' .
144 SUPREME COURT REPORTS I 1991] 3 S.C.R.
A
accorded sanction for the conversion. Therefore, the conversion was
in accordance with law". The averment in the affidavit of the BOA
that an application was made before it could not be substantiated. Nor
it could be established that the BOA or any of its committee ever took
into consideration that medical facilities were meagre in the city of
Bangalore. Such misleading statements call for serious condemnation.
B No further comment is needed except that the public institutions
should be cautious and must not give impression of taking sides. It is
destructive of fairness. The then Chairman's letter in 1976 extracted
above was forthright whereas the stand of BOA in 1983 appears to be
crude effort to support the executive action. No record was produced
to substantiate· the averments. It was necessary as it was not in
harmony with the correspondence extracted earlier. The statement by
c the counsel for the BOA that the records were not traceable was not
satisfactory. 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 disceretion must be guided by the inherent
philosophy that the exercisor of discretion is accountable for his
D aetion. It is to be tested on anvil of rule of law and fairness or justice
particularly if competing interest of members of society is involved.
Was this adhered to by any of the authority? Unfortunately not.
Much was attempted to be made out of exercise of discretion in
converting a site reserved for amenity as a civic amenity. Discretion is
E an effective tool in administration. But wrong notions about it results
in ill-cmiceived consequences. In law it provides an option to the
authority concerned to adopt one or the other alternative. But a bet-
ter, 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 pro-
F vides guidance or rules or regulations are framed for exercise of discre-
tion 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 arbitrarily. It
should be guided by reasonableness and fairness. The legislature never
intends its authorities to abuse the law or use it unfairly. When legisla-
G tu re enacted Sub-section (4) it unequivocally declared its intention of
making any alteration in the scheme by the Authority, that is, BOA
and not the State yovernment. It further permitted interference with
the scheme sanctioned by it only if appeared to be improvement. The
facts, therefore, that were to be found by the Authority were that the
conversion of public park into private nursing home would be an
H improvement in the scheme. Neither the Authority nor the State
MEDICAL TRUST v. B.S. MUDDAPPA (SAHA!, J.] 145
Government undertook any such exercise. Power of conversion or
alteration in scheme was taken for granted. Amenity was defined in A
Section 2(b) of the Act to include road, street, lighting, drainage,
public works and such other conveniences as the Government may, by
notification, specify to be an amenity for the purposes of this Act. The
Division Bench found that before any other facility could be consi-
dered amenity it was necessary for State Government to issue a notifi- B
cation. 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 c
local authority did not satisfy that characteristic which ·was necessary in
the absence of which it could not be held to be amenity or 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. D
Manner in which power was exercised fell below1.'. 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 corporate under Section 3 consisting of the
Chairman and experts on various aspects, namely, a finance member, E
an engineer, a town planner, an architect, the ex-officio members such
as Commissioner of Corporation of the City of Bangalore. officer of
the Secretariat and elected members for instance, two persons of the
State Legislature, one a woman and other a Scheduled caste and
Scheduled tribe member, representative of labour, representative of
water-supply, sewerage board, electricity board, State Road Transport F
Corporation, two elected counsillors etc. and the Commissioner. This
authority functions through committees and meetings as provided
under Sections 8 and 9. There is no Section either in the Act nor any
rule was placed to demonstrate that the Chairman alone, as such,
could exercise the power of the Authority. There is no whisper nor
there is any record to establish that any meeting of the Authority was G
held regarding alteration of the scheme. In any case the power does
not vest in the State Government or the Chief Minister of the State.
The exercise of power is further hedged by use of the expression, if 'it
appears to the Authority'. In legal terminology it visualises prior con-
sideration and objective decision. And all this must have resulted in
conclusion that the alteration would have been improvement. Not H
146 SUPREME COURT REPORTS [1991] 3 S.C.R.
eYen one was followed. The Chairman could not have acted on his
A
own. Yet without calling any meeting of the authority or any commit-
tee he sent the letter for converting the site. How did it appear to him
that it was necessary, is mentioned in the letter dated 21st April,
because the Chief Minister desired so. The purpose of the Authority
taking such a decision is their knowledge of local conditions and what
B was better for them. That is why participatory exercise is contemlated.
If any alteration in Scheme couid be done by the Chairman and the
Chief Minister then Sub-Section (4) of Section 19 is rendered otiose.
There is Iio provision in the Act for alteration in a scheme by convert-
ing one site to another, except, of course if it appeared to be improve-
ment. But even that power vested in the Authority not the Govern- ,.
ment. What should have happened was that the Authority should have
C 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. But what happened in fact was that the application for allot-
ment of the site was accepted first and the procedural requirements
D were attempted to be gone through later and that too by the State
Govt. which was not authorised to do so. 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 BOA to State Government proceeded in
E reverse direction, that, from the State Government to the BOA. Every
order, namely, convertiPg the site from public park to private nursing
home and even allotment to BMT was passed by State Government
and the BOA acting like a true subservient body obeyed faithfully by
adopting and confirming the directions. It was complete abdication of
power by the BOA. The Legislature entrusted the responsibility to
F alter and approve the Scheme to the BOA but the BOA 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 or law but much beyond it. In fact the only role which the State
Government could play in a scheme altered by the BOA is specified in
Sub-Section (5) and (6) of Section 19 of the Act. The former requires
G previous sanction of the Govt. if the estimated cost of executing the
altered scheme exceeds by a greater sum than five per ceat of the cost
of executing the scheme as sanctioned. And later if the 'scheme as
altered involved the acquisition otherwise than by agreement'. In
other words the State Government could be concerned or involved
with an altered scheme either because of financial considerations or
H when additional land was to be acquired, an exercise which could not
MEDiCAL TRUST v. B.S. MUDDAPPA [SAHA!, J.J 147
,
be undertaken by the BOA. A development scheme, therefore, sane- A
tioned and published in the Gazette could not be altered by the
Government.
Effort was made to justify the exercise of power under Sub-
Section (3) of Section 15 which reads as under:
"(3) Notwithstanding anything in this Act or in any other
law for the time being in force, the Government may,
whenever it deems it necessary require the Authority to
take up any development scheme or work and execute it
... subject to such terms and conditions as may be specified by
the Government."
t
In Sub-Section (1) the Authority is empowered to draw up
development scheme with approval of government whereas under
Sub-Section (2) it is entitled to proceed on its owil provided it has funds
and resources. Sub-Section (3) is the power of State Government to
direct it 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. The general
power of direction to take up development scheme cannot be con-
strued as superseding specific power conferred and provided for under
Section 19(4). The Authority under Section 3 functions as a body. The E
Act does not contemplate individual action. That is participatory exer-
cise of powers by different persons representing different interest.
And rightly as it is the local persons who can properly assess the need
and necessity for altering a scheme and if any proposal to convert from
one use to another was an improvement for residents of locality such as
exercise could not be undertaken by the Government. Absence of
power apart, such exercise is fraught with danger of being activated by
extraneous considerations.
Section 65 the overall power reserved in Government to give
such directions to the Authority as it considers expedient for carrying
out any purpose of the Act was another provision relied to support an G
order which is otherwise unsupportable. An exercise of power which is
ultra vires the provisions in the Statute cannot be attempted to be
resuscitated on general powers reserved in a Statute for its proper and
effective implementation. The Section authorises the Government to
issue directions to ensure that the provisions of law are obeyed and not
to empower it itself to proceed contrary to law. What is not permitted H
r
148 SUPREME COURT REPORTS [1991] 3 S.C.R.
A 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. The Section
authorises the Government to issue directions to carry out purposes of
the Act. That is the legislative mandate should be carried out. And not
that the provision of law can be disregarded and ignored because what
B
was done was being done by State Government and not the Authority.
An illegality or any action contrary to law does not become in accor-
dance with law 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. ..-
C For these reasons 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 ame-
nity and to allot it for private nursing home to Bangalore Medical
D Trust and the resolution of the Bangalore Development Authority in
compliance of it were null, void and without jurisdiction.
Leave granted.
ORDER
E
In the result this appeal fails, for the reasons stated by us in our
separate but concurring judgments, and is accordingly dismissed. We
further direct that the respondents shall be entitled to their cost
throughout.
N.P.V. Appeal dismissed.
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