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PETITIONER: BANGALORE MEDICAL TRUST

       Vs.

RESPONDENT: B.S. MUDDAPPA AND ORS.

DATE OF JUDGMENT19/07/1991

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) SAHAI, R.M. (J)

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

ACT: Town Planning.     Bangalore  Development  Authority Act,   1976:  Sections 2(b),   2(bb),  15,  16(1)(d),  17,  19(4),  38,   38A   and 65---Approved  Scheme  for development  of  the  City--Space reserved  for  public  park--Diversion and  allotment  to  a private   Trust   for  construction   of   hospital--Whether valid--Exercise  of  power  to  alter  the   Scheme--Whether valid--Power  of the Government to issue directions  to  the statutory  authority  regarding  the user of  the  site  and allotment  to a private body--Whether  unrestricted--Whether statutory authority bound by Government’s directions.     Constitution  of India, 1950: Articles  32,  226--Public Interest Litigation--Object and scope of--Space reserved for public  park-Diversion  for construction of a  hospital  and allotment  to a private body--Whether residents of  locality have  locus standi to challenge the action of  the  authori- ties.     Administrative  Law--Administrative   action--Discretion should be exercised objectively and rationally, when affect- ing  public  interest-Authority not to  act  whimsically  or arbitrarily.

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 This Act was  replaced  by the Bangalore Development Authority Act, 1976 and the scheme prepared  under  the repealed enactment was deemed  to  have been prepared and duly sanctioned by the Government in terms of  the new Act.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

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environment by reserving open space 103 for  ventilation, recreation and play grounds and parks  for the general public.     A  Single  Judge of the High Court  dismissed  the  Writ Petition holding that a hospital being a civic amenity,  the allotment of the site by the BDA in favour of the  appellant for the purpose of constructing a hospital was valid and  in accordance  with law, and, rejected the claim of  the  peti- tioners  that the BDA had no power to alter the scheme,  and in any event, a site reserved for a civic amenity could  not have  been allotted for construction of a hospital,  on  the ground that the scheme could be altered under Section  19(4) of the Act, and it was done with approval of State Govt.     On  appeal, the Division Bench held that though the  BDA had  the  authority to deal with the plot in  question,  the area,  having been reserved in the sanctioned scheme  for  a public park, its diversion from that object and allotment in favour of a private body was not permissible under the  Act, even if the object of the allotment was the construction  of a  hospital, since a hospital could not be considered to  be an  amenity  in 1976, and that in alloting the site  to  the appellant-Trust,  largesse  was  conferred on  it  in  utter violation  of law and rules, and set aside the allotment  of the  site in question to the appellant with liberty  to  the BDA  to  make a fresh allotment of any alternative  site  in favour of the appellant.     In   appeal  before  this  Court,  on  behalf   of   the appellant-trust,  it was contended that the  Division  Bench exceeded  its  jurisdiction in setting  aside  an  allotment which was purely an administrative action by the BDA  pursu- ant  to a valid direction by the Government in that  behalf, that  in the absence of any evidence of mala fide the  deci- sion  of the BDA was not liable to be interfered with,  that the  decision to allot a site for a hospital rather  than  a park was a matter within the discretion of the BDA and  that the  hospital  being not only an amenity but  also  a  civic amenity  under  the Act, as amended from time to  time,  the diversion  of  the  user of the land for  that  purpose  was justified,  that under Section 65 the BDA was bound  by  all directions of the Government, irrespective of the nature  or purpose of the directions, and that Section 38A  prohibiting sale  or  any other disposal of land  reserved  for  ’public parks or playgrounds and Section 16(1)(d) requiring that 15% of  the  total area of the lay out be  reserved  for  public parks  and  playgrounds and an additional area of  not  less than 10% of the total area for civic amenities were  enacted subsequent  to the relevant orders of the  Government  dated 27.5.76 and 11.6.76 and the resolution of the BDA 104 dated  14.7.76  resulting in the allotment of  the  site  in favour  of the appellant and at the material time  when  the Government  made these orders and the BDA acted  upon  them, there was no restriction on the diversion of the user of the land  reserved  for the public park or a playground  to  any other purpose.     On  behalf of the respondents, it was contended that  it was improper to confer a largesse on a private party at  the expense of the general public and the special  consideration extended to the appellant was not permissible under the Act, and  that  to allot in favour of the appellant an  area  re- served  for  public park even if it be for  the  purpose  of constructing a hospital was to sacrifice the public interest in  preserving the open spaces for  ventilation,  recreation and protection of the environment.

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Dismissing the appeal, this Court, HELD: Per Sahai, J.     1.  The entire proceedings before the  State  Government suffered from absence of jurisdiction. Even the exercise  of power was vitiated and ultra vires. Therefore,the orders  of the Government to convert the site reserved for public  park to civic amenity and to allot it for private nursing home to the  appellant Trust and the resolution of  the  Development Authority  in compliance of it were null, void  and  without jurisdiction. [148C-D]     2.1  The  purpose for which  the  Bangalore  Development Authority Act, 1976 was enacted is spelt out from the pream- ble itself which provides for establishment of the Authority for  development of the city and areas adjacent thereto.  To carry out this purpose, the development scheme framed by the Improvement Trust was adopted by the Development  Authority. Any  alteration in this scheme could have been made as  pro- vided  in Sub-Section (4) of Section 19 only if it  resulted in improvement in any part of the scheme. A private  Nursing Home  could  neither be considered to be an amenity  nor  it could be considered improvement over necessity like a public park. The exercise of power, therefore, was contrary to  the purpose for which it is conferred under the statute.  [141G- H]     2.2 The legislative mandate under Sec. 19(4) enables the Authority  to alter any scheme. Thus, existence of power  is clearly  provided  for.  But the legislature  took  care  to control  the exercise of this power by linking it  with  im- provement in the scheme. What is an improve- 105 ment  or  when any change in the scheme can be  said  to  be improvement  is  a  matter of discretion  by  the  authority empowered to exercise the power. [142C-D]     2.3  Sub-Section (4) of Section 19 not only defines  the scope and lays down the ambit within which discretion  could be exercised but it envisages further the manner in which it could  be  exercised. Therefore, any action or  exercise  of discretion to alter the scheme must have been backed by  the substantive rationality flowing from the Section. [142E]     2.4  The exercise of power is further hedged by  use  of the  expression  if it appears to the  Authority.  In  legal terminology it visualises prior consideration and  objective decision. And all this must have resulted in conclusion that the alteration would have been improvement. [145G-H]     3.1  When legislature enacted Sub-Section (4),  it  une- quivocally  declared its intention of making any  alteration in  the  scheme by the Authority, that is, BDA and  not  the State Government. It further permitted interference with the scheme  sanctioned by it only if it appeared to be  improve- ment.  Therefore,  the facts that were to be  found  by  the Authority  were  that  the conversion of  public  park  into private Nursing Home would be an improvement in the  scheme. Neither the Authority nor the State Government undertook any such  exercise. Power of conversion or alteration in  scheme was  taken for granted. There is no whisper anywhere  if  it was ever considered, objectively, by any authority that  the nursing  home  would amount to an improvement.  Whether  the decision  would  have been correct or not would  have  given rise to different consideration. But it was a total  absence of any effort to do so. [144G-H, 145A, G]     3.2  The manner in which power was exercised fell  below even  the minimum requirement of taking action  on  relevant considerations. A scheme could be altered by the  Authority, as  defined under Section 3 of the Act. It is a body  corpo- rate  consisting  of  the Chairman and  experts  on  various

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aspects.  This  Authority functions through  committees  and meetings  as provided under Sections 8 & 9. The  purpose  of the  Authority taking such a decision is their knowledge  of local  conditions and what was better for them. That is  why participatory exercise is contemplated. Yet, without calling any  meeting of the authority or any committee the  Chairman sent  the letter for converting the site. If any  alteration could  be done by the Chariman or the Chief  Minister,  then subsection  (4) of Section 19 is rendered otoise. [145E,  F, 146A-B] 106     3.3  Financial gain by a local authority at the cost  of public  welfare  has  never been  considered  as  legitimate purpose even if the objective is laudable. Sadly the law was thrown  to winds for a private purpose. The extract  of  the Chief  Minister’s order quoted in the letter of Chairman  of the  BDA  leaves no doubt that the end  result  having  been decided by the highest executive in the State, the lower  in order  of  hierarchy  only followed with  ’ifs’  and  ’buts’ ending finally with resolution of BDA which was more or less a formality. In less than ninety days, the machinery in  BDA and  Government moved so swiftly that the initiation of  the proposal, by the appellant, a rich trust with foreign depos- its,  query on it by the Chief Minister of the State,  guid- ance  of  way out by the Chairman, direction on  it  by  the Chief  Minister, orders of Govt., resolution by the BDA  and allotment  were all completed and the site for  public  park stood  converted into site for private nursing home  without any  intimation direct or indirect to those who  were  being deprived of it. [141A-C]     3.4  Speedy or quick action in public institutions  call for appreciation but our democratic system shuns exercise of individualised  discretion in public matters requiring  par- ticipatory decision by rules and regulations. No one  howso- ever  high  can arrogate to himself or  assume  without  any authorisation  express  or implied in law  a  discretion  to ignore the rules and deviate from rationality by adopting  a strained  or  distorted  interpretation as  it  renders  the action ultra vires and bad in law. [141C-D]     3.5 There is no provision in the Act for alteration in a scheme by converting one site to another, except, of  course if it appeared to be improvement- But even that power vested in  the Authority, not the Government. The Authority  should have  applied its mind and must have come to the  conclusion that conversion of the site reserved for public park into  a private  nursing home amounted to an improvement; then  only it could have exercised the power. Instead, the  application for allotment of the site was accepted first and the  proce- dural requirements were attempted to be gone through  later, and that too, by the State Government, which was not  autho- rised  to  do so. The only role which the  State  Government could  play in a scheme altered by the BDA is  specified  in Sub-Sections (5) and (6) of Section 19 of the Act, viz,  the State  Government  could be concerned or  involved  with  an altered  scheme either because of the  financial  considera- tions  or when additional land was to be acquired, an  exer- cise which could not be undertaken by the BDA. A development scheme,  therefore, sanctioned and published in the  Gazette could not he altered by the Government. [146B, G-H, 147A] 107     3.6  Not only that the Authority did not apply its  mind and  take any decision if there was any necessity  to  alter the  Scheme, but even if it is assumed that the State  Govt. could have any role to play, the entire exercise, instead of proceeding  from below, that is, from the BDA to State  GOv-

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ernment,  proceeded in reverse direction, that is, from  the State Government to the BDA. Every order, namely, converting the  site from public park to private nursing home and  even allotment  to the applicant was passed by  State  Government and  the  BDA, acting like a true subservient  body,  obeyed faithfully by adopting and confirming the directions. It was complete abdication of power by the BDA. [146D-E]     3.7  The  Legislature entrusted  the  responsibility  to alter  and  approve the Scheme to the BDA, but  the  BDA  in complete  breach of faith reposed in it, preferred  to  take directions  issued on command of the Chief Executive of  the State.  This  resulted not only in error of  law,  but  much beyond it. [146F]     3.8  Under  Sub-Section  (3) of Section  15,  the  State Government has power to direct the Authority to take up  any scheme.  The  main thrust of the Sub-Section is  to  keep  a vigil  on  the  local body. But it cannot  be  stretched  to entitle  the Government to alter any scheme or  convert  any site  or power specifically reserved in the Statute  in  the Authority  which functions as a body. The general  power  of direction to take up development scheme cannot be  construed as  superseding  specific power conferred and  provided  for under  Section 19(4). Absence of power apart, such  exercise is  fraught  with danger of being  activated  by  extraneous considerations. [147D-E]     3.9 An exercise of power which is ultra vires the provi- sions in the Statute cannot be attempted to be  resuscitated on  general powers reserved in a Statute for its proper  and effective implementation. Section 65 authorises the  Govern- ment  to issue directions to carry out purposes of  the  Act and to ensure that the provisions of law are obeyed, and not to  empower itself to proceed contrary to law. What  is  not permitted  by the Act to be done by the Authority cannot  be assumed  to be done by State Government to render it  legal. An illegality cannot be cured only because it was undertaken by  the Government, or because it is done at the  behest  of the Chief Executive of the State. No one is above law. In  a democracy  what prevails is law and rule and not the  height of the person exercising the power. [147G-H, 148A-B]     3.10  Amenity was defined in Section 2(b) of the Act  to include  road, street, lighting, drainage, public works  and such other con- 108 veniences as the Government may, by notification, specify to be  an  amenity for the purpose of this Act and  before  any other facility could be considered amenity, it was necessary for  State Government to issue a notification. And since  no notification  was issued including private nursing  home  as amenity,  it could not be deemed to be included in it.  That apart,  the  definition indicates that  the  convenience  or facility  should have had public characteristic. Even if  it is assumed that the definition of amenity, being  inclusive, it should be given a wider meaning so as to include hospital added  in clause 2(bb), as a civic amenity with effect  from 1984, a private nursing home, unlike a hospital run by Govt. or  local  authority, did not  satisfy  that  characteristic which was necessary, in the absence of which it could not be held to be amenity on civic amenity. In any case, a  private nursing home could not be considered to be an improvement in the  scheme  and, therefore, the power under  Section  19(4) could not have been exercised. [145A-D]     4.1  Discretion is an effective tool in  administration. But  wrong notions about it result in  ill-conceived  conse- quences.  In  law  it provides an option  to  the  authority concerned  to  adopt  one or the other  alternative.  But  a

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better, proper and legal exercise of discretion is one where the  authority examines the fact, is aware of law  and  then decides objectively and rationally what serves the  interest better. When a Statute either provides guidance or rules  or regulations  are framed for exercise of discretion then  the action should be in accordance with it. Even where  Statutes are silent and only power is conferred to act in one or  the other manner, the Authority cannot act whimsically or  arbi- trarily. It should be guided by reasonableness and fairness. The  legislature never intends its authorities to abuse  the law or use it unfairly. [144E-G]     4.2  The executive or the administrative authority  must not  be oblivious that in a democratic set up the people  or community  being sovereign, the exercise of discretion  must be  guided by the inherent philosophy that the exerciser  of discretion is accountable for his action, It is to be tested on anvil of rule of law and fairness or justice particularly if  competing interests of members of society are  involved. [144C-D]     4.3 When the law requires an authority to act or decide, if it appears to it necessary’ or if he is ’of opinion  that a  particular act should be done’, then it is implicit  that it should be done objectively, fairly and reasonably.  Deci- sions affecting public interest or the necessity of doing it in  the light of guidance provided by the Act and rules  may not  require intimation to person affected yet the  exercise of discretion is vitiated if the action is bereft of ration- ality, lacks objective and 109 purposive approach. The action or decision must not only  be reached  reasonably and intelligibly but it must be  related to the purpose for Which power is exercised. Public interest or general good or social betterment have no doubt  priority over  private  or individual interest but it must not  be  a pretext  to  justify the arbitrary or  illegal  exercise  of power. It must withstand scrutiny of the legislative  stand- ard provided by the Statute itself. The authority exercising discretion must not appear to be, impervious to  legislative directions.  No doubt, in modern State activity,  discretion with  executive  and  administrative agency is  a  must  for efficient and smooth functioning. But the extent of  discre- tion or constraints on its exercise depends on the rules and regulations under which it is exercised. [141E-F, 142F, D]       Public park as a place reserved for beauty and recrea- tion  is associated with growth of the concept  of  equality and  recognition of importance of common man.  Earlier  free and  healthy air in beautiful surroundings was privilege  of few.  But now it is a ’gift from people to themselves’.  Its importance  has multiplied with emphasis on environment  and pollution. In modern planning and development it occupies an important  place in social ecology. A private nursing  home, on  the other hand, is essentially a commercial  venture,  a profit oriented industry. Service may be its moto but  earn- ing is the objective. Its utility may not be undermined  but a park is a necessity not a mere amenity. A private  nursing home cannot be a substitute for a public park. [134A-C]     5.2 In 1984, the BD Act itself provided for  reservation of  not less than fifteen per cent of the total area of  the lay  out in a development scheme for public parks and  play- grounds,  the  sale and disposition of which  is  prohibited under Sec. 38A of the Act. Absence of open space and  public park, in present day when urbanisation is on increase, rural exodus  is on large scale and congested areas are coming  up rapidly, may give rise to health hazard. May be that it  may be taken care of by a nursing home. But it is axiomatic that

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prevention is better than cure. What is lost by removal of a park cannot be gained by establishment of a nursing home. To say,  therefore, that by conversion of a site  reserved  for low  lying park into a private nursing home, social  welfare was being promoted was being oblivious of true character  of the two and their utility. [134D-F]     6.1 Locus standi to approach by way of writ petition and refusal  to  grant  relief in equity  jurisdiction  are  two different aspects, may be with the same result. One  relates to maintainability of the petition and other to exercise  of discretion. Law on the former has marched much ahead. 110 Many  milestones  have been covered. The restricted  meaning of  aggrieved person and narrow outlook of  specific  injury has yielded in favour of broad and wide construction in  the wake  of public interest litigation. Even in  private  chal- lenge to executive or administrative action having extensive fall  out the dividing line between personal injury or  loss and injury of a public nature is fast vanishing. [133B-C]     6.2 Law has veered round from genuine grievance  against order affecting prejudicially to sufficient interest in  the matter.  The rise in exercise of power by the executive  and comparative  decline in power and  effective  administrative guidance  is  forcing  citizens to  expose  challenges  with public  interest flavour. Therefore, it is too late  in  the day to claim that petition filed by inhabitants of a locali- ty whose park was converted into a nursing home had no cause to  invoke equity juris diction of the High Court. In  fact, public  spirited  citizens having faith in rule of  law  are rendering great social and legal service by espousing  cause of  public nature. They cannot be ignored or  overlooked  on technical  or conservative yard stick of the rule  of  locus standi  or absence of personal loss or injury.  Present  day development of this branch of jurisprudence is towards  free movement  both in nature of litigation and approach  of  the courts. Residents of locality seeking protection and mainte- nance of environment of their locality cannot be said to  be busy  bodies  or  interlopers. Even  otherwise  physical  or personal or economic injury may give rise to civil or crimi- nal  action but violation of rule of law either by  ignoring or  affronting  individual or action of  the’  executive  in disregard of the provisions of law raises substantial  issue of accountability of those entrusted with responsibility  of the  administration.  It furnishes enough  cause  of  action either for individual or community in general to approach by way of writ petition and the authorities cannot be permitted to  seek  shelter  under cover of  technicalities  of  locus standi  nor  they  can be heard to plead  for  restraint  in exercise  of  discretion as grave issues of  public  concern outweigh such considerations. [133C-H]     S.P.  Gupta  v. Union of India, [1982]  2  S.C.R.  Akhil Bhartiya Sashit Karamchari Sangh v. U.O.I., AIR 1981 SC  293 and Fertilizer, Corporation Kamgar Union v. U.O.I., AIR 1981 SC 364, referred to.     Per Thommen J. (Concurring) 1.1 Apart from the fact that the  scheme  has not been validly altered by  the  Bangalore Development Authority, it was not open to the Government  in terms  of section 65 of the Bangalore Development Act,  1976 to  give a direction to the BDA to defy the very  object  of the  Act. The orders of the Government dated 27.5. 1976  and 11.6.1976 and the consequent decision of the BDA dated 111 14.7.1976 are inconsistent with, and contrary to, the legis- lative  intent to safeguard the health, safety  and  general welfare of the people of the locality. These orders evidence

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a  colourable  exercise  of power, and are  opposed  to  the statutory scheme. [132B-D]     1.2 The orders in question and the consequent action  of the  BDA in allotting to private persons areas reserved  for public parks and play grounds and permitting construction of buildings  for hospital thereon are, in  the  circumstances, declared to be null and void and of no effect. [132D-E]     2.1 Under Sub-Section (4) of Section 19 of the Bangalore Development  Authority  Act, 1976 the BDA  may,  subject  to certain restrictions contained in sub-sections (5) and  (6), alter the scheme, but such alteration has to be carried  out pursuant  to a formal decision duly recorded in  the  manner generally  followed  by a body corporate. The  scheme  is  a statutory  instrument  which is  administrative  legislation involving  a great deal of general law-making  of  universal application, and it is not, therefore, addressed to individ- ual  cases of persons and places, Alteration of  the  scheme must  be for the purpose of improvement and better  develop- ment of the City and adjoining areas and for general  appli- cation  for the benefit of the public at large. Any  altera- tion of the scheme with a view to conferring a benefit on  a particular person, and without regard to the general good of the  public at large, is not an improvement contemplated  by the Section. [122C-E]     Shri Sitaram Sugar Company Limited & Anr. etc. v.  Union of India & Ors., [1990] 1 SCR 909,937 et. seq. relied on.     2.2 Under Section 38, the BDA has the power, subject  to such restrictions, conditions etc., as may be prescribed, to lease,  sell or otherwise transfer any movable or  immovable property  which belongs to it, and to appropriate  or  apply any land vested in it or acquired by it for the formation of ’open  spaces’  or  for building purposes or  in  any  other manner  for  the  purpose of any  development  scheme.  This implies that land once appropriated or applied or  earmarked by  formation of ’open spaces’ or for building  purposes  or other  development  in  accordance with  a  duly  sanctioned scheme  should not be used for any other purpose unless  the scheme itself, which is statutory in character, is  formally altered  in the manner that the BDA as a body  corporate  is competent  to  alter.  But that power has  to  be  exercised consistently  with the appropriation or application of  land for  formation of ’open spaces’ or for building purposes  or any other development scheme sanctioned by the 112 Government.  Any unauthorised deviation from the duly  sanc- tioned  scheme  by sacrificing the public  interest  in  the preservation  and protection of the environment by means  of open space for parks and play grounds and ’ventilation’ will be  contrary to the legislative intent, and an abuse of  the statutory  power  vested  in the  authorities.  Section  38A inserted by Amendment Act 17 of 1984 clarifies that it shall not  be open to the BDA to dispose of any area reserved  for public parks and play grounds and civic amenities. Any  such site cannot be diverted to any other purpose. Any action  in violation of this provision is null and void. [123F-H, 124A, D-E]     2.3 Section 16 treats ’public parks and play grounds’ as a  different  and  separate amenity or  convenience  from  a ’civic  amenity’, and reserves 15% and 10% respectively  for these  two  purposes. The extent of the areas  reserved  for these two objects are thus separately and distinctly  stated by  the Statute. The implication of the conceptual  distinc- tion is that land reserved for a public park and play ground cannot  be  utilised  for any ’civic  amenity’  including  a hospital. [121B-C]

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   2.4  One  of the main objects of public  parks  or  play grounds  is the promotion of the health of the community  by means of ventilation and recreation. It is the  preservation of the quality of life of the community that is sought to be protected by means of these regulations. [121E-F]     2.5 The legislative intent is to preserve a public  park or  public playground in the hands of the general public  as represented  by  the BDA or any other public  authority  and prevent  private hands from grabbing them for private  ends. [126G]     3.1  The scheme provides for a public park and the  land in question remains dedicated to the public and reserved for that purpose. It is meant for the reasonable  accomplishment of  the  statutory object which is to  promote  the  orderly development of the city and adjoining areas and to  preserve open space by reserving public parks and play grounds with a view  to  protecting the residents from the  ill-effects  of urbanisation  of  the city in a way that  maximum  space  is provided for the benefit of the public at large for  recrea- tion, enjoyment, ’ventilation’ and fresh air. This is  clear from  the Act itself as it originally stood. The  amendments inserting  sections 16(1)(d), 38A and other  provisions  are clarificatory  of  this object. The legislative  intent  has always been the promotion and enhancement of the quality  of life’  by preservation of the character and  desirable  aes- thetic features of the city., [128F-H, 129A-B] 113     3.2 The original scheme, duly sanctioned under the  Act, includes  a  public park and the land in question  has  been reserved  exclusively for that purpose. Although it is  open to the BDA to alter the scheme, no alteration has been  made in the manner contemplated by section 19(4). [127F]     3.3 The letters addressed by the Chairman of the BDA  to the  Chief  Minister and the endorsement made by  the  Chief Minister on that letter as well as the orders of the Govern- ment  sanctioning  conversion of the low level park  into  a civic  amenity site and alloting the same to  the  appellant and  the resolution adopted by the BDA leave no  doubt  that the  action of the Government and the BDA resulting  in  the resolution have been inspired by individual interests at the costs and to the disadvantage of the general public.  Public interest  does  not appear to have guided the minds  of  the persons responsible for diverting the user of the open space for allotment to the appellant. Conversion of the open space reserved for a park for the general good of the public  into a site for the construction of a privately owned and managed hospital for private gains is not an alteration for improve- ment  of the scheme as contemplated by Section 19,  and  the orders  in question in that behalf are a flagrant  violation of  the  legislative  intent and a  colourable  exercise  of power.  In  the circumstances, no valid  decision  has  been taken to alter the scheme. [127G-H, 128A, D-F]     3.4  The power of the Government to give  directions  to the  Authority  under section 65 is  not  unrestricted.  The object of the directions must be to carry out the object  of the Act and not contrary to it. Only such directions as  are reasonably  necessary  or  expedient for  carrying  out  the object of the enactment are contemplated by section 65. If a direction  were to be issued by the Government to lease  out to  private parties areas reserved in the scheme for  public parks and play grounds, such a direction would not have  the sanctity  of section 65. Any such diversion of the  user  of the  land  would be opposed to the statute as  well  as  the object in constituting the BDA to promote the healthy devel- opment  of  the city and improve the  quality  of’life.  Any

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repository  of power--be it the Government or the  BDA--must act reasonably and rationally and in accordance with law and with due regard to the legislative intent. [127B-D]     3.5 The BD Act as enacted in 1976 has undergone  several changes  but  the definition of ’amenity’ in Clause  (b)  or Sec.  2 remains unchanged. Amenity includes various  conven- iences such as "road, drainage, lighting etc. and such other conveniences" as are notified as 114 such by the Government. The section was amended in 1984, and to  add clause (bb) after clause (b) which  distinguished  a civic amenity from amenity,and specified as civic amenities, such as dispensaries, maternity homes, etc. and those ameni- ties  which are notified as civic amenities by  the  Govern- ment.  Clause (bb) which was substituted by Act 11  of  1988 defines a civic amenity as, amongst others, a dispensary,  a hospital,  a pathological laboratory, a maternity  home  and such  other  amenity as the Government may  by  Notification specify. Thus, Clauses (b) and (bb) of Sec. 2 read  together show  that  all those conveniences which are  enumerated  or notified  by the Government under Clause (b)  amenities  and those  amenities  which are enumerated or  notified  by  the Government  under clause (bb) are civic amenities.  Signifi- cantly,  a  hospital is specifically stated to  be  a  civic amenity.  However, the concept of amenity under  clause  (b) remains uncchanged, though, it is not clear from  sub-clause (i)  of clause (bb) whether a hospital, when is not  run  by the  Government or a civic ’Corporation’, but by  a  private body as in the instant case, would qualify as ’civic  ameni- ty’.  But the Act of 1988 was merely clarificatory  of  what was always the position and the hospital has always regarded as an ’amenity’, if not a ‘civic amenity’. [119C-G, 120A]     4.1  Protection  of  the environment,  open  spaces  for recreation  and fresh air, play grounds for children  prome- nade for the residents, and other conveniences or  amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that  public interest which is sought to be promoted by the Act by estab- lishing the BDA. [129C]     4.2 The public interest in the reservation and preserva- tion  of  open spaces for parks and play grounds  cannot  be sacrificed  by  leasing  or selling such  sites  to  private persons  for  conversion to some other user.  Any  such  act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct  conflict with the constitutional mandate  to  ensure that  any  State action is inspired by the basic  values  of individual freedom and dignity and addressed to the  attain- ment of a quality of life which makes the guaranteed  rights a reality for all the citizens. [129D-E]     Kharak Singh v. The State of U.P. & Others, [1964] 1 SCR 332;  Municipal Council Ratlam v. Shri Vardhichand  &  Ors., [1981] 1 SCR 97; Francis Coralie Muffin v. The Administrator Union  Territory  of Delhi & Ors., [1981] 2  SCR  516;  Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., [1985] 3 SCC 545; State of Himachal Pradesh 115 JUDGMENT: Deo  Singh Tomar v. State of Bihar., AIR 1988 SC  1782,  re- ferred to.     4.3  Reservation  of  open spaces  for  parks  and  play grounds  is universally recognised as a legitimate  exercise of  statutory power rationally related to the protection  of the residents of the locality from the iII-effects of urban- isation.  Crowded urban areas tend to spread disease,  crime

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and immorality. [129G, 130G]     Karnataka Town and Country Planning Act, 1961; Maharash- tra Regional and Town Planning Act, 1966; Bombay Town  Plan- ning  Act,  1954; The Travancore Town and  Country  Planning Act, 1120; The Madras Town Planning Act 1920; and the  Rules framed  under these Statutes; Town & Country  Planning  Act, 1971 (England & Wales); Encyclopaedia Americana, Volume  22, page  240; Encyclopaedia of the Social Sciences, Volume  XII at  page 161; Town Improvement Trusts in India, 1945 by  Rai Sahib  Om  Prakash Aggarawala, p. 35; et.  seq.;  Halsbury’s Statutes,  Fourth  Edition, p. 17; el. seq. and  Journal  of Planning  &  Environment  Law, 1973, p. 130  et.  seq.  Penn Central  Transportation Company v. City of New York,  57  L. Ed. 2d/631 438 US 104 1978; Village of Belle Terre v.  Bruce Boraas, 39 L. Ed. 2d/797 416 US 1 1974 Village of Euclid  v. Ambler Realty Company, 272 US 365 1926 Halsey v. Esso Petro- leum Co. Ltd., [1961] 1 WLR; Thomas J. Schoenbaum,  Environ- mental Policy Law 1985 p. 438; et. seq. Summary and Comments 1980  10 E.L.R. 10125; et. seq. and Agins v. City of  Tribu- ron, 447 US 255 1980, referred to.     Samuel  Berman  v. Andrew Parker, 99 L. Ed. 27  (348  US 26), referred to.     4.4 Any reasonable legislative attempt bearing a ration- al relationship to a permissible state objective in economic and social planning will be respected by the courts. A  duly approved  scheme prepared in accordance with the  provisions of  the Act is a legitimate attempt on the part of the  Gov- ernment  and  the statutory authorities to  ensure  a  quiet place free of dust and din where children can run about  and the aged and the infirm can rest, breath fresh air and enjoy the beauty of nature. These provisions are meant to  guaran- tee  a quiet and healthy atmosphere to suit family needs  of persons  of all stations. Any action which tends  to  defeat that object is invalid. [131D-F]     Village of Belle Terre v. Bruce Boraas, 39 L. Ed. 2d 797 416  US 1; Village of Euclid v. Ambler Realty  Company,  272 U.S. 365 1926, and 116 T.  Damodhar  Rao & Ors. v. The Special  Officer,  Municipal Corporation  of Hyderabad & Ors., AIR 1987 AP 171,  referred to.     5.  The residents of the locality are the persons  inti- mately, vitally and adversely affected by any action of  the BDA and the Government which is destructive of the  environ- ment and which deprives them of facilities reserved for  the enjoyment  and  protection of the health of  the  public  at large. Being residents of the locality, the petitioners  are naturally  aggrieved  by the orders in  question,  and  they have, therefore, the necessary locus standi. [131H, 132A-B]

&     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2750  of 1991.     From the Judgment and Order dated 13.9.89 of the  Karna- taka High Court in W.A. No. 162 of 1989.     B.R.L. lyengar, S.S. Javali, R.V. Narasimhamurthi,  E.C. Vidyasagar,  G.V. Shantharaju, D.N.N. Reddy, Raju  Ramachan- dran, K. Jagan Mohan Rao, M. Veerappa and R.P. Wadhwani  for the appearing parties. The Judgment of the Court was delivered by THOMMEN, J. Leave granted.     I  have had the advantage of reading in draft the  judg- ment  of my learned Brother Sahai, J. and I am  in  complete

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agreement  with what he has stated. It is in support of  his reasoning and conclusion that I add the following words.     A  site near the Sankey’s Tank in Rajmahal Vilas  Exten- sion in the City of Bangalore was reserved as an open  space in an improvement scheme adopted under the City of Bangalore Improvement  Act, 1945. This Act was repealed by section  76 of the Bangalore Development Authority Act, 1976  (Karnataka Act  No. 12 of 1976) (hereinafter referred to as the  "Act") which  received the assent of the Governor on 2.3. 1976  and is  deemed  to  have come into force on 20.12.  1975.  By  a notification issued under section 3 of the Act, the  Govern- ment  constituted the Bangalore Development  Authority  (the "BDA") thereby attracting section 76 which, so far as it  is material, reads:               "S. 76. REPEAL AND SAVINGS (1) On the issue of               the               117               notification under sub-section (1) of  section               3   constituting  the  Bangalore   Development               Authority,  the City of Bangalore  Improvement               Act,  1945 (Mysore Act 5 of 1945)  shah  stand               repealed.                  (2)......................                  (3)......................                         Provided further that anything  done               or any action taken (including any appointment               notification  rule, regulation, order,  scheme               or  bye-law  made or  issued,  any  permission               granted) under the said Act shall be deemed to               have been done or taken under the  correspond-               ing provisions of this Act and shall  continue               to  be in force accordingly unless  and  until               superseded  by  anything done  or  any  action               taken under this Act:                         Provided also that any reference  in               any  enactment  or in any  instrument  to  any               provision  of the repealed Act shall unless  a               different intention appears be construed as  a               reference  to the corresponding  provision  of               this Act.               (emphasis supplied) Accordingly,  the scheme prepared under the repealed  enact- ment is deemed to have been prepared and duly sanctioned  by the  Government in terms of the Act for the  development  of Rajmahal  Vilas Extension. In the scheme so  sanctioned  the open space in question has been reserved for a public park.     However, pursuant to the orders of the State  Government dated  27.5.1976 and 11.6.1976 and by its  resolution  dated 14.7.1976, the BDA allotted the open space in favour of  the appellant, a medical trust, for the purpose of  constructing a  hospital.  This site is stated to be the  only  available space  reserved  in  the scheme for a public  park  or  play ground.  This  allotment  has been challenged  by  the  writ petitioners  (respondents in this appeal)’who are  residents of  the  locality on the ground that it is contrary  to  the provisions of the Act and the scheme sanctioned  thereunder, and  the  legislative  intent to protect  and  preserve  the environment  by  reserving  open  space  for  ’ventilation’, recreation  and play grounds and parks for the general  pub- lic. 118 The  writ  petitioners, being aggrieved as  members  of  the general  public  and residents of the locality,  have  chal- lenged  the diversion of the user and allotment of the  site to private persons for construction of a hospital.

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   The learned Single Judge who heard the writ petition  in the  first instance found no merit in it and  dismissed  the same.  He held that, a hospital being a civic  amenity,  the allotment  of the site by the BDA in favour of  the  present appellant  for  the purpose of constructing a  hospital  was valid and in accordance with law. On appeal by the  respond- ents  (the residents of the locality) the learned Judges  of the Division Bench held that, the area having been  reserved in  the sanctioned scheme for a public park,  its  diversion from  that object and allotment in favour of a private  body was not permissble under the Act, even if the object of  the allotment  was the construction of a hospital.  The  learned Judges were not impressed by the argument that the  proposed hospital being a civic amenity, the Act did not prohibit the abandonment of a public park for a private hospital. Accord- ingly,  allowing the respondents’ appeal and without  preju- dice to a fresh allotment by the BDA of any alternative site in  favour of the present appellant, according to  law,  the writ  petition was allowed and the allotment of the site  in question was set aside.      The appellant’s counsel submits that the learned Judges of the Division Bench exceeded their jurisdiction in setting aside an allotment which was purely an administrative action taken by the BDA pursuant to a valid direction issued by the Government in that behalf. He submits that in the absence of any  evidence of mala fide the impugned decision of the  BDA was impeccable and not liable to be interfered with in  writ jurisdiction- He says that the decision to allot a site  for a hospital rather than a park is a matter within the discre- tion  of  the  BDA. The hospital, he says, is  not  only  an amenity,  but also a civic amenity under the Act, as it  now stands,  and the diversion of the user of the land for  that purpose is justified under the Act.      The respondents, on the other hand, contend that it was improper  to  confer a largesse on a private  party  at  the expense  of  the general public. The  special  consideration extended  to  the appellant, they say, was  not  permissible under  the Act. To have allotted in favour of the  appellant an  area reserved for a public park, even if it be  for  the purpose  of  constructing a hospital, was to  sacrifice  the public interest in preserving open spaces for ’ventilation’, recreation and protection of the environment- 119     The  scheme  is undoubtedly statutory in  character.  In view of the repealing provisions contained in section 76  of the  Act, which we have in part set out above  the  impugned actions affecting the scheme will be examined with reference to  the Act. The validity of neither the Act nor the  scheme is doubted. The complaint of the writ petitioners  (respond- ents) is that the scheme has been violated by reason of  the impugned orders. The scheme, they point out, is a legitimate exercise of statutory power for the protection of the  resi- dents of the locality from the ill effects of  urbanisation, and the impugned orders sacrificing open space reserved  for a public park is an invalid and colourable exercise of power to  suit  private  interest at the expense  of  the  general public.     The  Act,  as  enacted in 1976,  has  undergone  several changes,  but the definition of ’amenity’ in clause  (b)  of section  2  remains unchanged.  ’Amenity’  includes  various ’conveniences’  such  as road, drainage, lighting  etc.  and such  other  conveniences  as are notified as  such  by  the Government.     Section 2 was amended in 1984 by Karnataka Act No. 17 of 1984  to  add clause (bb), after clause (b),  which  distin-

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guished a ’civic amenity’ from an ’amenity’. Certain  ameni- ties  were  specified as civic amenities,  such  as  dispen- saries,  maternity homes etc. and those amenities which  are notified as civic amenities by the Government.     By Act 11 of 1988, clause (bb) of section 2 was,  w.e.f. 21.4. 1984, substituted by the present clause which  defines a  civic amenity as, amongst others, a dispensary, a  hospi- tal,  a pathological laboratory, a maternity home  and  such other amenity as the Government may by notification,  speci- fy.  Clauses  (b) and (bb) of section 2 read  together  show that all those conveniences which are enumerated, or,  noti- fied  by the Government under clause (b),  are  ‘amenities’; and, all those amenities which are enumerated, or,  notified by the Government under clause (bb), are ’civic amenities’.     Significantly, a hospital is specifically stated to be a ’civic amenity’. The concept of ’amenity’ under clause  (b), however, remains-unchanged. it is not clear from  sub-clause (i)  of clause (bb) whether a hospital which is not  run  by the  Government  or  a civic ’Corporation’ but,  as  in  the present  case,  by a private body, would qualify  as  ’civic amenity’.  Nor is it clear whether a hospital was either  an ‘amenity’  or  a ’civic amenity’ until it  was  specifically stated to be the latter by the Amendment Act 11 of 1988. The respondents (residents) 120 contend that a hospital did not have the status of an ’amen- ity’ and much less a ’civic amenity’ until Act 11 of 1988 so stated. But perhaps the appellant rightly contends that  Act 11  of 1988 was merely clarificatory of what was always  the position,  and the hospital has always been regarded  as  an ’amenity’,  if not a ’civic amenity’. However, on the  facts of  this case, it is unnecessary to pursue this  point  fur- ther.  Nor is it necessary to consider whether  a  privately owned  and managed hospital, as in the present case,  is  an ’amenity’ for the purpose of the Act.      The  question really is whether an open space  reserved for a park or play ground for the general public, in accord- ance  with  a formally approved  and  published  development scheme  in  terms of the Act, can be allotted to  a  private person or a body of persons for the purpose of  constructing a hospital? Do the members of the public, being residents of the  locality, have a right to object to such  diversion  of the  user of the space and deprivation of a park  meant  for the  general public and for the protection of  the  environ- ment? Are they in law aggrieved by such diversion and allot- ment?  To ascertain these points, we must first took at  the relevant provisions of the Act.      Chapter   III  of  the  Act  deals  with   ’development schemes’.  The BDA is empowered to draw up detailed  schemes for  the development of the Bangalore Metropolitan Area.  It may, with the previous approval of the Government, undertake from  time to time any work for such development  and  incur expenditure  therefor. The Government is also  empowered  to require  the BDA to take up any development scheme  or  work and  execute the same, subject to such terms and  conditions as  may  be specified by the Government  (See  section  15). Section  16  provides  that such  development  schemes  must provide  for various matters, such as acquisition  of  land, laying  and re-laying of land, construction and  reconstruc- tion  of  buildings, formation and  alteration  of  streets, drainage, water supply and electricity. In 1984 this section was amended by Act 17 of 1984 by inserting clause (d) so  as to  provide  for compulsory reservation of portions  of  the layout for public parks and play grounds and also for  civic amenities. Section 16(1)(d) provides:

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                  "S. 46. PARTICULARS TO BE PROVIDED FOR IN               A     DEVELOPMENT   SCHEME-Every   development               scheme            under section 15: (1) shall,               within  the limits of the  area           com-               prised in the scheme, provide for:               121               (d)  the reservation of not less than  fifteen               per  cent of the total area of the layout  for               public parks and play grounds and an addition-               al  area of not less than ten percent  of  the               total area of the layout for civic amenities." This  provision thus treats ’public parks and play  grounds’ as  a different and separate amenity or convenience  from  a ’civic amenity’. 15% and 10% of the total area of the layout must respectively be reserved for (1) public parks and  play grounds,  and,  (2) for civic amenities. The extent  of  the areas reserved for these two objects are thus separately and distinctly  stated by the statute. The implication  of  this conceptual  distinction is that land reserved for  a  public park  and  play  ground cannot be utilised  for  any  ’civic amenity’ including a hospital. 16(2) says:               "S.  16(2) may, within the  limits  aforesaid,               provide for-               (b) forming open spaces for the better  venti-               lation of the area comprised in the scheme  or               any adjoining area; The need for open space for ’better ventilation’ of the area is  thus emphasised by this provision. One of the  main  ob- jects  of public parks or play grounds is the  promotion  of the  health of the community by means of  ‘ventilation’  and recreation, It is the preservation of the quality of life of the  community  that is sought to be protected by  means  of these regulations.     Section  17  lays down the procedure to be  followed  on completion  of a development scheme. It deals with,  amongst other  things, the method of service of notice  on  affected parties. Section 18 deals with the procedure for sanctioning the scheme. The BDA must submit to the Government the scheme together  with  the particulars such  as  plans,  estimates, details  of  land to be acquired etc. and  also  representa- tions, if any, received from persons affected by the scheme. On  consideration of the proposed scheme, the Government  is empowered under sub-section (3) of section 18 to accord  its sanction for the scheme. 122     Section 19 says that when necessary sanction is accorded by the Government, it should publish in the Official Gazette a  declaration  as     the sanction accorded  and  the  land proposed  to be acquired for the scheme. Sub-section (4)  of section 19 says:                "19(4)  If  at  any time it  appears  to  the               authority  that an improvement can be made  in               any  part  of the scheme,  the  Authority  may               alter  the  scheme for the  said  purpose  and               shall  subject  to  the  provisions  of   sub-               sections  (5)  and (6), forthwith  proceed  to               execute the scheme as altered." This means that the BDA may, subject to certain restrictions contained in sub-sections (5) and (6), alter the scheme, but such  alteration has to be carried out pursuant to a  formal decision duly recorded in the manner generally followed by a body  corporate. The scheme is a statutory instrument  which is  administrative  legislation involving a  great  deal  of general law-making of universal application, and it is  not,

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therefore,  addressed  to individual cases  of  persons  and places. Alteration of the scheme must be for the purpose  of improvement and better development of the City of  Bangalore and  adjoining  areas and for general  application  for  the benefit of the public at large. Any alteration of the scheme with a view to conferring a benefit on a particular  person, and  without  regard to the general good of  the  public  at large,  is not an improvement contemplated by  the  section. See  the  principle  stated in Shri  Sitaram  Sugar  Company Limited  & Anr. etc. v. Union of India & Ors., [1990] 1  SCR 909,937, et. seq.     Section  30 has not been amended, and, so far as  it  is material, reads:               "30.  STREETS ON COMPLETION TO VEST IN AND  BE               MAINTAINED BY CORPORATION--               (2)  Any open space including such  parks  and               play grounds as may be notified by the Govern-               ment  reserved for ventilalion in any part  of               the area under the jurisdiction of the Author-               ity  as part of any development  scheme  sanc-               tioned by the Government shall be  transferred               on  completion to the Corporation for  mainte-               nance  at the expense of the  Corporation  and               shall thereupon vest in the Corporation.               (3).  .............................................. ..               (emphasis supplied) 123 Sub-section  (2) of this section thus refers to open  space, including parks and play grounds, notified by the Government as reserved for ‘ventilation’. Section 31 prohibits transfer by  sale or otherwise of sites for the purpose of  construc- tion  of buildings until all the improvements  specified  in section  30,  including parks and play  grounds,  have  been provided  for  in the estimates. Section  32  prohibits  any person from forming any extension or layout for the  purpose of  construction of buildings without specific  sanction  of the  BDA. Section 33 has empowered the Commissioner  of  the BDA  to  order alteration or demolition  of  buildings  con- structed  otherwise than in conformity with the sanction  of the  BDA. These provisions have not undergone  any  material change.     Chapter V of the Act deals with property and finance  of the BDA. Section 38 reads:               "38.  POWER  OF AUTHORITY TO  LEASE,  SELL  OR               TRANSFER  PROPERTY-Subject  to  such  restric-               tions,  conditions and limitations as  may  be               prescribed, the Authority shall have power  to               lease, sell or otherwise transfer any  movable               or immovable property which belongs to it, and               to appropriate or apply any land vested in  or               acquired  by  it  for the  formation  of  open               spaces  or  for building purposes  or  in  any               other  manner for the purpose of any  develop-               ment scheme."               (emphasis supplied) This section also has not undergone any material change.  It says that, subject to such restrictions, conditions etc., as may  be prescribed, the BDA has the power to lease, sell  or otherwise  transfer any movable or immovable property  which belongs, to it, and to appropriate or apply any land  vested in  it or acquired by it for the formation of ’open  spaces’ or  for  building purposes or in any other  manner  for  the purpose  of any development scheme. This implies  that  land once  appropriated or applied or earmarked by  formation  of

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’open spaces’ or for building purposes or other  development in  accordance with a duly sanctioned scheme should  not  be used  for any other purpose unless the scheme itself,  which is statutory in character, is formally altered in the manner that the BDA as a body corporate is competent to alter. This section,  of  course, empowers the BDA to lease or  sell  or otherwise  transfer any property. But that power has  to  be exercised consistently with the appropriation or application of  land  for  formation of ’open spaces’  or  for  building purposes or any other development scheme sanctioned by 124 the  Government. Property reserved for open space in a  duly sanctioned  scheme cannot be leased or sold away unless  the scheme  itself is duly altered. Any  unauthorised  deviation from  the duly sanctioned scheme by sacrificing  the  public interest in the preservation and protection of the  environ- ment  by means of open space for parks and play grounds  and ’ventilation’  will be contrary to the  legislative  intent, and  an abuse of the statutory power vested in the  authori- ties. That this is the true legislative intent is left in no doubt by the subsequent amendment by Act 17’Of 1984, insert- ing section 38A, which reads:               "38A. PROHIBITION OF THE USE OF AREA  RESERVED               FOR  PARKS, PLAY GROUNDS AND  CIVIC  AMENITIES               FOR  OTHER  PURPOSES-The authority  shall  not               sell or otherwise dispose of any area reserved               for  public parks and play grounds  and  civic               amenities,  for  any  other  purpose  and  any               disposition so made shall be null and void."               (emphasis supplied) This amendment of 1984, which came into force on 17.4.84, is merely clarificatory of what has always been the legislative intent.  The  new provision clarifies that it shall  not  be open  to the BDA to dispose of any area reserved for  public parks  and play grounds and civic amenities. Any  such  site cannot  be  diverted  to any other purpose.  Any  action  in violation of this provision is null and void.     The  legislative intent to prevent the diversion of  the user of an area reserved for a public park or play ground or civic  amenity  is reaffirmed by the  Bangalore  Development Authority  (Amendment)  Act, 1991 (Karnataka Act No.  18  of 1991)  which  came into force w.e.f.  16.1.1991,  and  which substituted  a new section 38A in the place of  the  earlier provision  inserted by Act 17 of the 1984. Section 2 of  the Karnataka Act 18 of 1991 reads:               "S.  2. Substitution of section 38A--For  sec-               tion 38A of the Bangalore Development Authori-               ty Act, 1976 (Karnataka Act 12 of 1976  (here-               inafter referred to as the principal Act), the               following shall be deemed to have been substi-               tuted with effect from the twenty first day of               April, 1984, namely:                         ‘38A.  Grant  of area  reserved  for               civic  amenities etc: (1) The Authority  shall               have the power to lease, sell or               125               otherwise transfer any area reserved for civic               amenities for the purpose for which such  area               is reserved.                         (2) The Authority shall not sell  or               otherwise  dispose  of any area  reserved  for               public parks and playgrounds and civic  ameni-               ties,  for any other purpose and any  disposi-               tion so made shall be null and void--                         Provided  that  where  the  allottee

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             commits  breach  of any of the  conditions  of               allotment,  the Authority shall have right  to               resume such site after affording an opportuni-               ty of being heard to such allottee." This  new  section  38A, as clarified in  the  Statement  of Objects  and  Reasons and in the Explanatory  Statement  at- tached  to L.A. Bill No. 6 of 1991, removed the  prohibition against  lease  or sale or any other transfer  of  any  area reserved  for a civic amenity, provided the transfer is  for the same purpose for which the area has been reserved.  This means that once an area has been stamped with the  character of  a particular civic amenity by reservation of  that  area for  such  purpose, it cannot be diverted to any  other  use even when it is transferred to another party. The  rationale of  this restriction is that the scheme once  sanctioned  by the Government must operate universally and the areas  allo- cated  for particular objects must not be diverted to  other objects. This means that a site for a school or hospital  or any  other civic amenity must remain reserved for that  pur- pose, although the site itself may change hands. This is the purpose of sub-section (1) of section 38A, as now substitut- ed.  Sub-section  (2)  of section 38A, on  the  other  hand, emphasises the conceptual distinction between ’public  parks and  play  grounds’  forming one category  or’  ’space’  and ’civic  amenities’ forming another category of sites.  While public  parks and play grounds cannot be parted with by  the BDA for transfer to private hands by reason of their  statu- tory dedication to the general public, other areas  reserved for.  civic amenities may be transferred to private  parties for  the  specific purposes for which those  areas  are  re- served.  There is no prohibition, as such, against  transfer of  open spaces reserved for public parks or  play  grounds, whether or not for consideration, but the transfer is limit- ed  to public authorities and their user is limited  to  the purposes  for which they are reserved under the scheme.  The distinction is that while public parks and play grounds  are dedicated  to the public at large for common use,  and  must therefore  remain with the State or  its  instrumentalities, such  as  the BDA or a Municipal Corporation  or  any  other authority, the civic amenities are not so dedicated, 126 but  only reserved for particular or special purposes.  This restriction  against  allotment  of public  parks  and  play grounds is further emphasised by section 3 of the  Karnataka Act 18 of 1991 which reads:               "S.3. Validation of allotment of civic amenity               sites--Notwithstanding  anything contained  in               any  law or judg-ment, decree or order of  any               court  or other authority, any       allotment               of civic amenity site by way of sale, lease or               otherwise  made  by the  authority  after  the               twenty-first  day       of  April,  1984,  and               before  the  Seventh  day  of  May,  1988  for               the  purposes  specified  in  clause  (bb)  of               Section 2 of the     principal Act, shall,  if               such  site  has been made use of  for      the               purpose for which it is allotted, be deemed to               have been validly made and shall, have  effect               for  all purposes as if it      had been  made               under  the principal Act, as amended  by  this               Act and accordingly:                        (i)  all  acts  or  proceedings,   or               things done or allotment made or action  taken               by  the Authority shall, for all  purposes  be               deemed  to be and to have always been done  or

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             taken in accordance with law; and                        (ii)  no  suit or  other  proceedings               shall  be instituted, maintained or  continued               in  any  court  or before  any  authority  for               cancellation  of such allotment or  demolition               of  buildings  constructed  on  the  sites  so               allotted  after  obtaining  building  licences               from  the  Authority or the  (local  authority               concerned  or for questioning the validity  of               any  action  or) things taken  or  done  under               section  38A of the principal Act, as  amended               by  this  Act and no court  shall  enforce  or               recognise  any decree or  order’declaring  any               such  allotment made, action taken  or  things               done under the principal Act, as invalid." The  evil that was sought to be remedied by  the  validation provision  is  in  regard to  allotment  of  "civic  amenity sites",  and not public parks or play grounds (see also  the Explanatory  Statement  attached  to the  Bill).  All  these provisions  unmistakably point to the legislative intent  to preserve’a public park or public play ground in the hands of the  general public, as represented by the BDA or any  other public authority, and thus prevent private hands from  grab- bing them for private ends. it must also be stated here that the  validation clause relates to the period  between  21.4. 1984 and 7.5. 1988 which was long after the impugned  allot- ment. 127     Section  65 empowers the Government to give such  direc- tions to the BDA as are, in its opinion, necessary or  expe- dient  for carrying out the purposes of the Act. It  is  the duty  of the BDA to comply with such directions. It is  con- tended  that the BDA is bound by all directions of the  Gov- ernment, irrespective of the nature or purpose of the direc- tions.  We  do not agree that the power  of  the  Government under  section 65 is unrestricted. The object of the  direc- tions  must  be to carry out the object of the Act  and  not contrary  to  it.  Only such directions  as  arc  reasonably necessary  or expedient for carrying out the object  of  the enactment  are  contemplated by section 65. If  a  direction were to be issued by the Government to lease out to  private parties  areas reserved in the scheme for public  parks  and play  grounds, such a direction would not have the  sanctity of  section 65. Any such diversion of the user of  the  land would  be  opposed to the statute as well as the  object  in constituting  the BDA to promote the healthy development  of the city and improve the quality of life. Any repository  of power--be  it the Government or the BDA must act  reasonably and  rationally  and  in accordance with law  and  with  due regard to the legislative intent.     It is contended on behalf of the appellant that  section 38A prohibiting sale or any other disposal of land  reserved for  ’public  parks or play grounds’, and  section  16(1)(d) requiring  that 15 per cent of the total area of the  layout be reserved for public parks and play grounds, and an  addi- tional area of not less than ten per cent of the total  area of  the layout for civic amenities, were enacted  subsequent to the relevant orders of the Government dated 27.5.1976 and 11.6.1976  and the resolution of the BDA dated  14.7.76  re- sulting in the allotment of the site in favour of the appel- lant.  Counsel says that at the material time when the  Gov- ernment 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.

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   Significantly,  the  original  scheme,  duly  sanctioned under the Act, includes a public park and the land in  ques- tion  has  been reserved exclusively for that  purpose.  Al- though it is open to the BDA to alter the scheme, no altera- tion  has  been made in the manner contemplated  by  section 19(4).  It  is, however, true that certain  steps  had  been taken by the Government and the BDA 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 11th June, 1976 sanctioning conversion of the low  level park 128 into  a  civic amenity site and allotting the  same  to  the appellant. These orders were followed by a resolution adopt- ed by the BDA on 14th July, 1976 reading as follows:               "393.  Allotment  of C.A.  Site  to  Bangalore               Medical Trust for construction of Hospital  in               Rajmahal viias Extension.               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               viias  Extension,  Bangalore,  in  favour   of               Banglore  Medical  Trust for  construction  of               Hospital  to read and recorded with  confirma-               tion for further action in the matter". These  documents leave no doubt that the action of the  Gov- ernment  and the BDA resulting in the resolution dated  14th July, 1976 have been inspired by individual interests at the costs and to the disadvantage of the general public.  Public interest  does  not appear to have guided the minds  of  the persons responsible for diverting the user of the open space for allotment to the appellant. Conversion of the open space reserved for a park for the general good of the public  into a site for the construction of a privately owned and managed hospital for private gains is not an alteration for improve- ment  of the scheme as contemplated by section 19,  and  the impugned  orders in that behalf are a flagrant violation  of the  legislative intent and a colourable exercise of  power. In  the circumstances, it has to be-concluded that no  valid decision  has  been taken to alter the  scheme.  The  scheme provides 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.     The scheme is meant for the reasonable accomplishment of the statutory object which is to promote the orderly  devel- opment  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 iII-effects of urbanisation. It is meant for the development of the city in a way that maximum space is provided for  the benefit  of the public at large for  recreation,  enjoyment, ’ventilation’ 129 and  fresh  air.  This is clear from the Act  itself  as  it originally   stood.   The  amendments   inserting   sections 16(1)(d), 38A and other provisions are clarificatory of this object. The very purpose of the BDA, as a statutory authori- ty, is to promote the healthy growth and development of  the

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City of Bangalore and the area adjacent thereto. The  legis- lative intent has always been the promotion and  enhancement of the quality of life by preservation of the character  and desirable  aesthetic  features 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  recrea- tion and fresh air, play grounds for children, promenade for the  residents,  and  other conveniences  or  amenities  are matters of great public concern and of vital interest to  be taken  care  of in a development scheme. It is  that  public interest which is sought to be promoted by the Act by estab- lishing the BDA. 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 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  guaran- teed rights a reality for all the citizens. See Kharak Singh v.  The State of U.P. & Others, [1964] 1 SCR 332;  Municipal Council, Ratlam v. Shri Vardhichand & Ors., [1981] 1 SCR 97; Francis Coralie Mullin v. The Administrator, Union Territory of  Delhi  & Ors., [1981] 2 SCR 516; Olga Tellis &  Ors.  v. Bombay Municipal Corporation & Ors., [1985] 3 SCC 545; State of  Himachal Pradesh & Anr. v. Umed Ram Sharma &  Ors.,  AIR 1986  SC 847 and Vikram Deo Singh Tomar v. State  of  Bihar, AIR 1988 SC 1782.     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 illeffects of urbanisation. See for e.g:  Karnataka Town and Country Planning Act,  1961;  Maha- rashtra  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); Encyclopaedia Americana, Volume  22, page  240; Encyclopaedia of the Social Sciences, Volume  XII at page 130 161;  Town Imporvement Trusts’ in lndia,  1945 by Rai  Sahib Om Prakash Aggarawala, p. 35; et. seq.,’ Halsburys Statutes, Fourth  Edition,  p. 17 et. seq. and Journal of  Planning  & Environment  Law, 1973, p. 130 et. seq. See also: Penn  Cen- tral Transportation Company v. City of New York, 57 L.Ed. 2d 631  [438  US 104 (1978)]; Village of Belle Terre  v.  Bruce Bora  as,  39  L.Ed. 2d 797 [416 US 1  (1974)];  Village  of Euclid  v.  Ambler  Realty Company, 272 US  365  (1926)  and Halsey v. Esso Petroleum Co. Ltd., [1961] 1 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 impacts, such as  ......  pollution,  ....  destruction of scenic  beauty. disturbance  of  the ecology and  the  environment,  hazards related  geology,  fire and flood,  and  other  demonstrated consequences of urban sprawl’. Upholding the ordinance,  the Court said:               "....  The State of California has  determined

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             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  pro-               tect  the residents of Tiburon from  the  iII-               effects  of  urbanization.  Such  governmental               purposes long have been recognized as  legiti-               mate.                         The  zoning ordinances  benefit  the               appellants  as  well  public  by  serving  the               city’s interest in assuring careful and order-               ly  development of residential  property  with               provision for open-space areas. ...  See  com-               ments  on this decision by Thomas  J.  Schoen-               baum,  Environmental Policy Law, 1985  p.  438               et. seq. See also Summary and Comments, [1980]               10E.L.R. 10125 et. seq."     The statutes in force in India and abroad reserving open spaces  for parks and play grounds are the  legislative  at- tempt to eliminate the misery of disreputable housing condi- tion  caused  by urbanisation. 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 1.  Ed. 27 348 US 26:               "....  They may also suffocate the  spirit  by               reducing the               131               people who live there to the status of cattle.               They  may indeed make living an almost  insuf-               ferable 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.                     .....    The concept of the public  wel-               fare  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  deter-               mine that the community should be beautiful as               well  as healthy, spacious as well  as  clean,               well-balanced as well as carefully  patrolled.               In  the  present case, the  Congress  and  its               authorized  agencies have made  determinations               that  take  into  account a  wide  variety  of               values.....  ".               (Per Douglas, J.).     Any  reasonable legislative attempt bearing  a  rational relationship  to a permissible state objective  in  economic and social planning will be respected by the courts. A  duly approved  scheme prepared in accordance with the  provisions of  the Act is a legitimate attempt on the part of the  Gov- ernment  and  the statutory authorities to  ensure  a  quiet place free of dust and din where children can run about  and the aged and the infirm can rest, breath fresh air and enjoy the beauty of nature. These provisions are meant to  guaran- tee  a quiet and healthy atmosphere to suit family needs  of persons  of all stations. Any action which tends  to  defeat that object is invalid. As stated by the U.S. Supreme  Court in  Village  of Belle Terre v. Bruce Boraas, 39  L.  Ed.  2d 797416US 1:               "....   The  police power is not  confined  to               elimination  of filth, stench,  and  unhealthy               places.  It  is ample to lay out  zones  where

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             family values, youth values, and the blessings               of quiet seclusion and clean air make the area               a sanctuary for people". 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. Damodhar Rao & Ors. v.  The  Special  Officer, Municipal Corporation of Hyderabad & Ors., AIR 1987 AP 17 1. The  residents of the locality are the persons’  intimately, vitally 132 and  adversely  affected by any action of the  BDA  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  resi- dents  of  the locality, such as the writ  petitioners,  are naturally  aggrieved by the impugned orders and  they  have, therefore, the necessary locus standi.     In  the  circumstances, we are of the view  that,  apart 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.     The  impugned orders of the Government dated 27.5.  1976 and  11.6.1976 and the consequent decision of the BDA  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.     The impugned orders and the consequent action of the BDA in  allotting to private persons areas reserved  for  public parks and play grounds and permitting construction of build- ings for hospital thereon are in the circumstances, declared to be null and void and of no effect.     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 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 various issues it is imperative to sort out at 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 houses around the park and  thus could not be placed in the category of 133 persons aggrieved. It was also emphasised that the  hospital with research centre and even free service being more impor- tant from social angle the inhabitants of the 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 same result. One relates  to

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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 injury  has yielded in favour of broad and wide construction in wake  of public  interest  litigation. Even in private  challenge  to executive or administrative action having extensive fall out the dividing line between personal injury or loss and injury of  a public nature is fast vanishing. 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 administrative guidance is forcing citizens to espouse  challenges with public 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 conservative yardstick of  the rule of locus standi or absence of personal loss  or injury. Present day development of this branch of  jurispru- dence 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 985--AIR 1982 SC 149;  Akhil Bhartiya  Soshit Kararnchari Sangh v. U.O.I., [1981]  1  SCC 246--AIR  1981  SC 293 and  Fertilizer  Corporation  Karngar 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  ignoring or  affronting  individual  or action of  the  executive  in disregard of the provisions of law raises substantial  issue of accountability of those entrusted with responsibility  of the  administration.  It furnishes enough  cause  of  action either for individual or community in general to approach by way of writ petition and the authorities cannot be permitted to  seek  shelter  under cover of  technicalities  of  locus standi  nor  they  can be heard to plead  for  restraint  in exercise of discretion as grave issues of 134 public concern outweigh such considerations.     Public  park as a place reserved for beauty and  recrea- tion was developed in 19th and 20th Century and is associat- ed 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 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. In modern planning and development it occupies an important place in social ecology. A private nursing home on the  other  hand  is essentiality a  commercial  venture,  a profit oriented industry. Service may be its morn but  earn- ing is the objective. Its utility may not be undermined  but a park is a necessity not a mere amenity. A private  nursing home  cannot  be  a substitute for a public  park.  No  town planner  would prepare a blue print without reserving  space for it. Emphasis on open air and greenery has multiplied and the  city or town planning or development 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

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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  dispo- sition of which is prohibited under Section 38A of the  Act. Absence  of open space and public park, in present day  when urbanisation is on increase, rural exodus is on large  scale and congested areas are coming up rapidly, may 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,  there- fore,  that by conversion of a site reserved for  low  lying into a private nursing home social welfare was being promot- ed  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 the rules contemplate  participatory objective decision or conclusion. Another is the requirement of  substantive fairness in dealings by government or  local bodies  or public institutions with people of any strata  of society  uniformly  and equally. To begin with  the  factual setting in which the controversy arose it is undisputed that the City Improvement Board constituted under City of  Banga- lore Improvement Act, 1945, prepared the development  scheme for bringing into 135 existence  an extension of the City of Bangalore which  came to  be  known as the Palace Upper  Orchards/Sadashiv  Nagar, later came to be known as Raj Mahal Viias Extension. In this an  area  facing, the Sankey tank, was earmarked  for  being developed  as a low level park. In 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 scheme  by proviso Second to Sub-Section (3) of the  Section and provided 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. On it  the Chairman, without any meeting of any Committee or the Devel- opment  Authority, wrote a letter to the Chief  Minister  on 21st April, 1976, the contents of which are extracted below:               "No. PS. 56/76-77               Encl. One Blue Print.               Respected sir,                         Re:  Grant  of  land  to   Bangalore               Medical  Trust for construction of  a  nursing               home.                         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 Viias Exten-               sion, on which you have passed orders  "Chair-               man,  BDA-A  suitable site  for  the  proposed               hospital building may be given.                         I  herewith  enclose  a   blue-print               showing  the location of the said plot,  which               they  have  requested. In the blue  print  ap-               proved by the erstwhile City Improvement Trust               Board, Bangalore, this site is marked as a Low               Level   Park,  which  measures   approximately

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             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  secure this land for  their  use  to               construct a nursing home               136               with  eminent  specialists  to  cater  medical               relief to the needy 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 allotment of the               said land to the Bangalore Medical Trust as  a               Civic  Amenity  Site. Therefore, I  seek  your               kind orders in the matter, how I should act.               With warm regards,               Yours sincerely.     On it the Chief Minister made an endorsement is his  own hand which reads as under:               "This  area which was allowed to be  kept  for               laying a park may be converted into C.A. Site.               Another similar 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."     In  consequence of the direction by the  Chief  Minister the  Government  on 27th May, 1976 converted the  site  from public  park  to a civic amenity. Copy of the order  is  ex- tracted below:               "Subject:  Grant of land to Bangalore  Medical               Trust for construction of a Nursing Home.                        ORDER NO. HMA 249 MNG 76 DATED BANGA-               LORE THE 27TH MAY 1976.                        READ;  Letter No. PS 56/7-6-77  dated               21.4.1976   from  the   Chairman,    Bangalore               Development  Authority, Bangalore.               PREAMBLE;               The Chairman, Bangalore Development Authority               137               has  requested for sanction of  Government  to               the conversion of the low level park, next  to               the  land  allotted  to the  HKE  Society,  in               Rajmahal Viias Extension as a C.A. Site and to               the  allotment of the said site to the  Banga-               lore  Medical Trust for the construction of  a               Nursing Home.               ’ORDER                        Sanction  is accorded to the  conver-               sion  of the Low Level Park, situated next  to               the  land  allotted to the H.K.E.  Society  in               Rajmahal Vilas Extension, Bangalore as a civic               amenity site.               By order and in the name of the                                          Governor of  Karna-               taka               sd/-                                    (S.R.    Shankaranarayana               Rao I/c. Under Secretary to Government  Health               & Municipal Admn. Deptt."     It was followed by another order dated 17th June,  1976, sanctioning the lease to the BMT. The order reads as under:               "Subject:  Allotment of a C.A. site to  Banga-               lore  Medical  Trust  for  Construction  of  a               hospital.               ORDER NO.  HMA 249 MNG 76, BANGALORE DATED THE

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             17TH JUNE, 1976.                       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.               3)  Letter  No. PS 132/76-77 dated  1st  June,               1976 from the Chairman, Bangalore  Development               Authority, Bangalore.               PREAMBLE;               138                         Sanction  was accorded to convert  a               low  level  park  situated next  to  the  land               allotted  to H.K.E. Society in Rajmahal  Viias               Extension, Bangalore vide Govt. Order read  at               (ii) above.                         Now    the    Chairman,    Bangalore               Development  Authority requests for  lease  of               the aforesaid Civic Amenity Site to the Banga-               lore Medical Trust, Bangalore.               ORDER                         Sanction is accorded to the lease of               Civic  Amenity Site situated next to the  land               allotted  to  HKE Society  in  Rajmahal  Viias               Extension  Bangalore to the Bangalore  Medical               Trust for construction of hospital with condi-               tions of lease as detailed in the Govt.  Order               No. PLM 18 MNG 64, dated 17th March, 1964.                         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               sd-               (K.G. Rajanna)               Under Secretary to Government Health & Munici-               pal Admn. Deptt."     On  14th  July  the  Bangalore  Development   Authority. (hereinafter  referred  as BDA) 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               Bangalore dated the 17th June, 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-               lore Medical Trust for construction of  hospi-               tal be read and recorded with confirmation for               further action in the matter.     On  coming to know of the allotment in 1981,  when  some construction  activity  was noticed by the  residents,  they approached the 139 High  Court  by way of writ petition on  which  the  learned single Judge framed two issues:               "(1) Whether the land had become the  property               of the Corporation and therefore the allotment               of  land  by the BDA in favour of  the  fourth               respondent was illegal and invalid?               (2)  Even assuming that the ownership  of  the               land had not been transferred to the  Corpora-               tion, whether the action of the BDA in  allot-               ting  the  land, originally  earmarked  for  a               park, for construction of a nursing home and a               hospital, to the fourth respondent is  illegal               and invalid?

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   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(I) 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 for  public  park  did not vest in the  Corporation  and  it continued with the BDA which could deal with it. The finding was affirmed by the Division Bench as well. Its  correctness was  not  assailed  by the respondents, in  this  Court.  As regards the second question the learned Judge while agreeing with  the Division Bench in Holy Saint Education Society  v. Venkataamana,  ILR  1982 1 Karnataka P. 1. that a  site  re- served  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 BDA Act, the CIT or the BDA, as  the case  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  re- served  for  public park was converted under  order  of  the Government  it  was not possible to hold that  the  land  in question 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 reserved  for park was converted to be an area reserved  for civic amenity the contention of the petitioners that the BDA had allotted 140 the  site  for a purpose other than to which  the  land  was reserved, had no basis at all for the fact that after alter- ation  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.’     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 ameni- ty could not have been allotted for construction of a hospi- tal" 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),  ad ed  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  Govern- ment  has  to notify. If it does not  specify  whatever  may otherwise be a public convenience will not be a civic ameni- ty  or.  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  con- ferred on it in utter violation of law and rules.      Did the Division Bench commit any error of law? Was the conversion  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

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any precaution taken by the Chief Executive of the State  to adhere  to legislative requirement of altering  any  scheme. Not  in the least. The direction of the Chief Minister,  the apex  public  functionary  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 law and  rule  The Govt.  record  depicted even more distressing  picture.  The role  of  the administration was  highly  disappointing.  In their  noting even a show of awareness of law and  fact  was missing. This culture of public functionary, adorning  high- est  office  in the State of being law to  himself  and  the administration  acting on dictate, for whatever reason  dis- turbs  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 body like BDA with  impres- sive members too succumbed under the pressure without, even, a murmur. 141     Financial  gain  by  a local authority at  the  cost  of public  welfare  has  never been  considered  as  legitimate purpose even if the objective is laudable. Sadly the law was thrown  to winds for a private purpose. The extract  of  the Chief  Minister’s order quoted in the letter of Chairman  of the  BDA  leaves no doubt that the end  result  having  been decided  by the highest executive in the State the lower  in order  of  hierarchy  only followed with  ‘ifs’  and  ‘buts’ ending finally with resolution of BDA which was more or less a formality. 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 proposal, by the appellant a rich trust with 90,000 dollars in foreign depos- its,  query on it by the Chief Minister of the State,  guid- ance  of  way,out by the Chairman, direction on  it  by  the Chief  Minister, orders of Govt. resolution by the  BDA  and allotment  were all completed and     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  institu- tions call for appreciation but our democratic system  shuns exercise  of  individualised discretion  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  dis- cretion to ignore the rules and deviate from rationality  by adopting  a strained or distorted interpretation as it  ren- ders  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 should  be done’ then it is implicit that it should be  done objectively,  fairly  and  reasonably.  Decisions  affecting public interest or the necessity of doing it in the light of guidance  provided  by  the Act and rules  may  not  require intimation to person affected yet the exercise of discretion is  vitiated  if the action is bereft of  rationality  lacks objective  and  purposive approach. The action  or  decision must not only be reached reasonably and intelligibly but  it must be related to the purpose for which power is exercised. 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 Bangalore and areas adjacent thereto. To carry out this purpose the  development scheme  framed by the Improvement Trust was adopted  by  the Development  Authority. Any alteration in this scheme  could

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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  pur- pose 142 for which it is conferred under the statute.     Was the exercise of discretion under Sub-Section (4)  of Section  19  in  violation or in accordance  with  the  norm provided in law. For proper appreciation the Sub-Section  is extracted below:               "(4) If at any time it appears to the Authori-               ty 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." 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 character. The  legisla- ture  took  care to control the exercise of  this  power  by linking  it with improvement in the scheme. What is  an  im- provement or when any change in the scheme can be said to be improvement  is  a  matter of discretion  by  the  authority empowered  to exercise the power. 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.  Sub- Section  (4)  of Section 19 not only defines the  scope  and lays  down  the ambit 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 have  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 pretext to justify the arbitrary or illegal exercise of power. It must withstand scrutiny of the legislative  stand- ard provided by the Statute itself. The authority exercising discretion must not appear to be, impervious  to,legislative directions. From the extracts of correspondence between  the Chairman and the Chief Minister it is apparent that  neither of them cared to look in, the provisions of law. It was left to the learned Advocate General to 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  consideration. 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 which appears more a  legal jugglery than statement of facts bristling 143 with  factual  inaccuracies there is no mention of  it.  The extent  of  misleading  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

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             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  supple-               mented  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 Viias Extension,               as  early  as in 1976, the  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  necessary               to  convert the said low level park  as  civic               amenity  site.  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  institutions.               Under the recommendations which has been made,               it was decided that plots could be allotted to               public institutions subject to certain  condi-               tions." 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 considered in the interest  of  the general  public,  nothing prevents the BDA 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 is in exercise of this power, the BDA  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  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 144 accorded sanction for the conversion. Therefore, the conver- sion was in accordance with law". The averment in the  affi- davit  of  the BDA that an application was  made  before  it could not be substantiated. Nor it could be established that the BDA or any of its committee ever took into consideration that  medical facilities were meagre in the city  of  Banga- lore. Such misleading statements call for serious  condemna- tion.  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 BDA 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 m  harmony  with the correspondence extracted  earlier.  The statement  by the counsel for the BDA 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

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the  exercise of disceretion must be guided by the  inherent philosophy  that the exercisor 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  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  discre- tion  in converting a site reserved for amenity as  a  civic amenity. Discretion is an effective tool in  administration. But  wrong notions about it results in iII-conceived  conse- quences.  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 provides guidance or rules  or regulations  are framed for exercise of discretion then  the action should be in accordance with it. Even where  Statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or  arbi- trarily. It should be guided by reasonableness and fairness. The  legislature never intends its authorities to abuse  the law or use it unfairly. 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 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 improvement in the  scheme. Neither the Authority nor the State 145 Government undertook any such exercise. Power of  conversion or  alteration in scheme was taken for granted. Amenity  was defined in 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  considered amenity  it  was necessary for State Government to  issue  a notification. And since no notification was issued including private nursing home as amenity it could not be deemed to be included in it. That apart the definition indicates that the convenience or facility should have had public  characteris- tic.  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 hospi- tal  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 considered to be an improvement  in the scheme and, therefore, the  power  under Section 19(4) could not have been exercised.     Manner in which power was exercised fell below even  the minimum requirement of taking action on relevant  considera- tions. 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, an  engineer,  a  town planner,  an architect, the ex-officio members such as  Com- missioner  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

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of  labour, representative of water-supply, sewerage  board, electricity  board,  State Road Transport  Corporation,  two elected counsillors etc. and the Commissioner. This authori- ty  functions  through committees and meetings  as  provided ’ruder  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 held regarding altera- tion  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  expres- sion, if ‘it appears to the Authority’. In legal terminology it  visualises prior consideration and  objective  decision. And  all  this  must have resulted in  conclusion  that  the alteration would have been improvement. Not 146 even one was followed. The Chairman could not have acted  on his own. Yet without calling any meeting of the authority or any  committee 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 was better  for  them.  That is why  participatory  exercise  is contemlated.  If any alteration in Scheme could be  done  by the Chairman and the Chief Minister then Sub-Section (4)  of Section 19 is rendered otiose. There is no provision in  the Act  for  alteration in a scheme by converting one  site  to another, except, of course if it appeared to be improvement. But even that power vested in the Authority not the  Govern- ment.  What  should  have happened was  that  the  Authority should  have  applied  its mind and must have  come  to  the conclusion that conversion. of the site reserved for  public park into a private nursing home amounted to an  improvement then  only it could have exercised the power. But what  hap- pened in fact was that the application for allotment of  the site was accepted first and the procedural requirements 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 BDA to State Government proceeded  in  reverse direction, that, from the State Government to the BDA. Every order,  namely,  converting  the site from  public  park  to private nursing home and even allotment to BMT was passed by State Government and the BDA acting like a true  subservient body obeyed faithfully by adopting and confirming the direc- tions.  It was complete abdication of power by the BDA.  The Legislature  entrusted the responsibility to alter  and  ap- prove  the Scheme to the BDA but the BDA in complete  breach of faith reposed in it, preferred to take directions  issued on command of the Chief Executive of the State. This result- ed 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 BDA is specified in Sub-Section (5) and  (6) of  Section  19  of the Act. The  former  requires  previous sanction of the Govt. if the estimated cost of executing the altered  scheme exceeds by a greater sum than five per  cent 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

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because of financial considerations or when additional  land was to be acquired, an exercise which could not 147 be  undertaken by the BDA. A development scheme,  therefore, sanc-;  tioned  and published in the Gazette  could  not  be altered by the Government.     Effort  was made to justify the exercise of power  under SubSection (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."     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 own provid- ed 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  Gov- ernment  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 construed as superseding specific power  conferred and  provided for under Section 19(4). The  Authority  under Section 3 functions as a body. The Act does not  contemplate individual action. That is participatory exercise 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  improve- ment 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 extra- neous considerations.     Section  65 the overall power reserved in Government  to give such directions to the Authority as it considers  expe- dient  for carrying out any purpose of the Act  was  another provision  relied  to support an order  which  is  otherwise unsupportable. An exercise of power which is ultra vires the provisions in the Statute cannot be attempted to be resusci- tated 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 148 by the Act to be done by the Authority cannot be assumed  to be done by State Government to render it legal. An illegali- ty  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 was  done  was being done by State Government  and  not  the Authority. An illegality or any action contrary to law  does not become in accordance 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.     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.  There-

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fore  the orders of the Government to convert the  site  re- served for public park to civic amenity and to allot it  for private  nursing  home to Bangalore Medical  Trust  and  the resolution of the Bangalore Development Authority in compli- ance of it were null, void and without jurisdiction. Leave granted. ORDER     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  respond- ents shall be entitled to their cost throughout. N.P.V.                                          Appeal  dis- missed. 149