# BANGALORE MEDICAL TRUST v. B.S. MUDDAPPA AND ORS

- **Citation:** [1991] 3 S.C.R. 102
- **Court:** Supreme Court of India
- **Decided:** 1991-07-19
- **Case number:** Civil Appeal No. 2750 of 1991
- **Bench:** T.K. Thommen, R.M. Saha!
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bangalore-medical-trust-v-b-s-muddappa-and-ors-11193
- **Pages:** 47

## Headnote

Town Planning.
Bangalore Development Authority Act, 1976: Sections 2(b),
2(bb), 15, 16( l)(d), 17, 19(4), 38, 38A and 65-Approved Scheme for
development of the City-Space reserved for public park-Diversion
C
and allotment to a private Trust for construction of hospital-Whether
valid-Exercise of power to alter the Scheme-Whether valid-Power
of the Government to issue directions to the statutory authority regarding the user of the site and allotment to a private body-Whether unrestricted-Whether statutory authority bound by Government's directions.
D
Constitution of India, I950: Articles 32, 226---Pub/ic Interest
Litigation-Object and scope of-Space reserved for public parkDiversion for construction of a hospital and allotment to a private
body-Whether residents of locality have locus standi to challenge the
action of the authorities.
E
Administrative Law-Administrative action-Discretion shquld be
exercised objectively and rationally, when affecting public interestAuthority not to act whimsically or arbitrarily.
A site in the city of Bangalore was reserved as an open space in an
improvement scheme adopted under the City of Bangalore ImproveF
ment Act, 1945. This Act was replaced hy the Bangalore Development
Authority Act, 1976 and the scheme prepared m1der the repealed enactment was deemed to have been prepared and duly sanctioned by the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
G
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 thereunder, and the legislative
H
intent to protect and preserve the environment by reserving open space
102
MEDICAL TRUST v. B.S. MUDDAPPA
103
for ventilation, recreation and play grounds and parks for the general
A
public.
A Single Judge of the ,High Court dismissed the Writ Petition
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
B
of the petitioners that the BDA had no power to alter the scheme, and in
any event, a site reserved for a civic amenity could not have been
allotted for construction of a hospital, on the ground that the scheme
could be altered under Section 19(4) of the Act, and it was done with
-,
approval of State Govt.
'
On appeal, the Division Bench held that though the BDA had the
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 permissic
ble 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 D
amenity in 1976, and that in alloting the site to the appellant-Trust,
largesse was conferred on it in utter violation of law and rules, and set
aside the allotment of the site in question to the appellant with liberty to
the BDA to make a fresh allotment of any alternative site in favour of
the appellant.
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 pursuant to a valid direction by the Government in that
behalf, that in the absence of any evidence of mala fide the decision of
E
the BDA was not liable to be interfered with, that the decision to allot a
F
site for a hospital rather than a park was a matter within the discretion
of th

## Text

_Characters 0–39,501 of 116,860. This is a partial read: ask again with offset=39501 for what follows._

A
B
BANGALORE MEDICAL TRUST
v.
B.S. MUDDAPPA AND ORS.
JULY 19, 1991
[T.K. THOMMEN AND R.M. SAHA!, JJ.]
Town Planning.
Bangalore Development Authority Act, 1976: Sections 2(b),
2(bb), 15, 16( l)(d), 17, 19(4), 38, 38A and 65-Approved Scheme for
development of the City-Space reserved for public park-Diversion
C
and allotment to a private Trust for construction of hospital-Whether
valid-Exercise of power to alter the Scheme-Whether valid-Power
of the Government to issue directions to the statutory authority regarding the user of the site and allotment to a private body-Whether unrestricted-Whether statutory authority bound by Government's directions.
D
Constitution of India, I950: Articles 32, 226---Pub/ic Interest
Litigation-Object and scope of-Space reserved for public parkDiversion for construction of a hospital and allotment to a private
body-Whether residents of locality have locus standi to challenge the
action of the authorities.
E
Administrative Law-Administrative action-Discretion shquld be
exercised objectively and rationally, when affecting public interestAuthority not to act whimsically or arbitrarily.
A site in the city of Bangalore was reserved as an open space in an
improvement scheme adopted under the City of Bangalore ImproveF
ment Act, 1945. This Act was replaced hy the Bangalore Development
Authority Act, 1976 and the scheme prepared m1der 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
G
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 thereunder, and the legislative
H
intent to protect and preserve the environment by reserving open space
102
MEDICAL TRUST v. B.S. MUDDAPPA
103
for ventilation, recreation and play grounds and parks for the general
A
public.
A Single Judge of the ,High Court dismissed the Writ Petition
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
B
of the petitioners that the BDA had no power to alter the scheme, and in
any event, a site reserved for a civic amenity could not have been
allotted for construction of a hospital, on the ground that the scheme
could be altered under Section 19(4) of the Act, and it was done with
-,
approval of State Govt.
'
On appeal, the Division Bench held that though the BDA had the
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 permissic
ble 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 D
amenity in 1976, and that in alloting the site to the appellant-Trust,
largesse was conferred on it in utter violation of law and rules, and set
aside the allotment of the site in question to the appellant with liberty to
the BDA to make a fresh allotment of any alternative site in favour of
the appellant.
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 pursuant to a valid direction by the Government in that
behalf, that in the absence of any evidence of mala fide the decision of
E
the BDA was not liable to be interfered with, that the decision to allot a
F
site for a hospital rather than a park was a matter within the discretion
of the BDA and that the hospital being not only an amenity hut also a
civic amenity under the Act, as amended from time to time, the 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
G
38A prohibiting sale or any other disposal of land reserved for 'public
parks or playgrounds and Section 16(l)(d) requiring that 15% of the
total area of the lay out be reserved for public parks and playgrounds
and an additional area of not less than 10% of the total area for civic
amenities were enacted subsequent to the relevant orders of the
Government dated 27 .5. 76 and 11.6. 76 and the resolution of the BDA
He
A
B
c
104
SUPREME COURT REPORTS
[1991) 3 S.C.R.
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 behaif 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 reserved for public park even if it be for the purpose of cunstructing a hospital was to sacrifice the public interest in preserving the open
spaces for ventilation, recreation and protection of the environment.
Dismissing the appeal, this Court,
HELD: Per Sahai, J.
D
I. The entire proceedings before the State Government suffered
from absence of jurisdiction. Even the exercise of power was vitiated
and ultra vires. Theref'ore,the orders of the Government to convert the
site reserved for public park to civic amenity and to allot it for private
nursing home to the appellant Trust and the resolution of the Development Authority. in compliance of it were null, void and without
E
jurisdiction. [148C-D)
2.1 The purpose for which the Bangalore Development Authority
Act, 1976 was enacted is spelt out from the preamble itself which provides. for establishment of the Authority for development of the city and
areas adjacent thereto. To carry out this purpose, the development
F
scheme framed by the Improvement Trust was adopted by the Development Authority. Any alteration in this scheme could have been made as
provided in Sub-Section ( 4) of Section 19 only if it resulted in improvement in any part of the scheme. A private Nursing Home could
neither be considered to be an amenity nor it could be considered
improvement over necessity like a public park. 1'he exercise of power,
G
therefore, was contrary to the purpose for which it is conferred under
the statute. [141G-H)
2.2 The legislative mandate undt.· ';ec. 19(4) enables the Authority to alter any scheme. Thus, existei.. " of power is clearly provided
for. But the legislature took care to cu .. twl the exercise of this power
H
by linking it with improvement in the 'rhcme. What is an improve-
MEDICAL TRUST v. B.S. MUDDAPPA
105
ment or when any change in the scheme can be said to be 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 bnt 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]
A
B
c
3.1 When legislature enacted Sub-Section ( 4), it unequivocally
declared its intention of making any alteration in the scheme by the
Authority, that is, BDA and not the State Government. It further
D
permitted interference with the scheme sanctioned by it only if it
appeared to be improvement. Therefore, the facts that were to be found
by the Authority were that the conversion of public park into private
Nursing Home would be an improvement in the scheme. Neither the
Authority nor the State Government undertook any such exercise.
Power of conversion or alteration in scheme was taken for granted.
E
There is no whisper anywhere if it was ever considered, objectively, by
any authority that the nursing home would amount to an improvement.
Whether the decision would have been correct or not would have given
rise to different consideration. But it was a total absence of any effort to
do so. [J44G-H, 145A, G]
3.2 The manner in which power was exercised fell below even the
minimum requirement of taking action on relevant considerations. A
scheme could be altered by the Authority, as defined under Section 3 of
the Act. It is a body corporate consisting of the Chairman and experts
F
on various aspects. This Authority functions through committees and
meetings as provided under Sections 8 & 9. The purpose of the AuthoG
rity 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]
H
A
B
c
106
SUPREME COURT REPORTS
I 1991] 3 S.C.R.
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
deposits, query on it by the Chief Minister of the State, guidance of way
out by the Chairman, direction on it by the Chief Minister, orders of
Govt., resolution by the BDA and allotment were all completed and the
site for public park stood converted into site for private nursing home
without any intimation direct or indirect to those who were being deprived of it. [141A-C]
3.4 Speedy or quick action in public institutions call for appreciaD tion 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 discretion to
ignore the rules and deviate from rationality hy adopting a strained or
distorted interpretation as it renders the action ultra vires and bad 'in
E
law. [141C-D]
3.5 There is no provision in the Act for alteration in a scheme by
converting one site to another, except, of course if it appeared to be
improvement. Bnt even that power vested in the Authority, not the
Government. The Authority should have applied its mind and must
F
have come to the conclusion that conversion of the site reserved for
public park into a private nursing home amounted to an improvement;
then only it could have exercised the power. Instead, the application for
allot1nent of the site was ac1:epted first and the procedural requirements
were attempted to he gone through later, and that too, hy the State
Government, which was not authorised to do so. The only role which
G the State Government could play in a scheme altered by the BDA is
specified in Sub-Sections (5) and (6) of Section 19 of the Act, viz, the
State Government could be concerned or involved with an altered
scheme either because of the financial considerations or when additional land was to be acqnired, an exercise which could not be undertaken by the BDA. A development scheme, therefore, sanctioned and published
H in the Gazette could not be altered hy the Government. [146B, G-H, 147A]
MEDICAL TRUST v. B.S. MUDDAPPA
107
3.6 Not only that the Authority did not apply its mind and take
any decision ifthere was any necessity to alter the Scheme, but even ifit
is assumed that the State Govt. could have any role to play, the entire
exercise, instead of proceeding from below, that is, from the BDA to
State Government, proceeded in reverse direction, that is, from the
State Government to the BDA. Every order, namely, converting the site
from public park to private nursing home and even allotment to the
applicant was passed by State Government and the BDA, acting like a
true subservient body, obeyed faithfully by adopting and confirming
the directions. It was complete abdication of power by the BDA. [l46D-E]
3. 7 The Legislature entrusted the responsibility to alter and
approve the Scheme to the BDA, but the BDA in complete breach of
faith reposed in it, preferred to take directions issued on command of
the Chief Executive of the State. This resulted not only in error of law,
but much beyond it. [I46F]
'
3.8 Under Sub-Section (3) of Section 15, the State Government
A
B
c
has power to direct the Authority to take up any scheme. The main D
thrust of the Sub-Section is to keep a vigil on the local body. But it
cannot be stretched to entitle the Government to alter any scheme or
convert any site or power specifically reserved in the Statute in the
Anthority which functions as a body. The general power of direction to
take up development scheme cannot be construed as superseding
specific power conferred and provided for under Section 19(4). Absence
E
of power apart, such exercise is fraught with danger of being activated
by extraneous considerations. [l47D-E]
3.9 An exercise of power which is ultra vires the provisions in ihe
Statute cannot be attempted to be resuscitated on general powers
reserved in a Statute for its proper and effective implementation.
F
Section 65 authorises the Government to issue directions to carry out
purposes of the Act and to ensure that the provisions of law are obeyed,
and not to empower itself to proceed contrary to law. What is not
permitted by the Act to be done by the Authority cannot be assumed to
be done by State Governmeni to render it legal. An illegality cannot be
cured only because it was undertaken by the Government, or because it
G
is done at the behest of the Chief Executive of the State. No one is above
law. In a democracy what prevails is law and rule and not the height of
the person exercising I.he power. [l47G-H, I48A-B]
3. IO Amenity was defiped in Section 2(b) of the Act to include
road, street, lighting, drainage, public works and such other conH
A
B
c
108
SUPREME COL:RT REPORTS
I 1991] 3 S.C.R.
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 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. [I45A-D]
4.1 Discretion is an effective tool in administration. But wrong
notions about it result in ill-conceived consequences. In law it provides
D
an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where
the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a Statute
either provides guidance or rules or regulations are framed for exercise
of discretion then the action should be in accordance with it. Even
E
where Statutes are silent and only power is conferred to act in one or the
other manner, the Authority cannot act whimsically or arbitrarily. It
should be guided by reasonableness and fairness. The legislature never
intends its authorities to abuse the law or use it unfairly. [144E-G]
4.2 The executive or the administrative authority must not be
F
oblivious that in a democratic set up the people or community being
sovereign, the exercise of discretion must be guided by the inherent
philosophy that the exerciser of discretion is accountable for his action. It
is to be tested on anvil of rule of law and fairness or justice particularly
if competing interests of members of society are involved. [ l44C-D I
G
4.3 When the law requires an authority to act or decide, 'if it
appears to it necessary' or if he is 'of opinion that a particular act
should be done', then it is implicit that it should be do11e objectively,
fairly and reasonably. Decisions affecting public interest or the 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 discre·
H tion is vitiated if the action is bereft of rationality, lacks objective and
MEDICAL TRUST v. B.S. MUDDAPPA
109
purposive approach. The action or decision must not only be reached
reasonably and intelligibly but it must be related to the purpose for
which power is exercised. Public interest or general good or social
betterment have no doubt priority over private or individual interest
but it must not be a pretext to justify the arbitrary or illegal exercise of
power. It must withstand scrutiny of the legislative standard provided
by the Statute itself. The authority exercising discretion must not
appear to be, impervious to legislative directions. No doubt, in modern
State activity, discretion with executive and administrative agency is a
must for efficient and smooth functioning. But the extent of discretion
or constraints on its exercise depends on the rules and regulations under
which it is exercised. [141E-F, 142F, DJ
5.1 Public park as a place reserved for beauty and recreation .is
associated with grawth of the concept of equality and recognition of
importance of common man. Earlier free and healthy air in beautiful
surroundings was privilege of few. But now it is a 'gift from people to
themselves'. Its importance has multiplied with emphasis on 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 earning is the objective. Its utility may not
be undermined but a park is a necessity not a mere amenity. A private
nursing home cannot be a substitute for a public park. [134A-C]
5.2 In 1984, the BD Act itself provided for reservation of not less
than fifteen per cent of the total area of the lay out in a development
scheme for public parks and playgrounds, the sale and disposition of
A
B
c
D
E
-.
which is prohibited under Sec. 38A of the Act. Absence of open space
and public p3.rk, in present day when urbanisation is on increase, rural
exodus is on large scale and congested areas are coming up rapidly, may
F
give rise to health hazard. May be that it may be taken care of by a
nursing horne. But it is axiomatic that prevention is better than cure.
What is lost by removal of a park cannot be gained by establishment of
a nursing home. To say, therefore, that by conversion of a site reserved
for low lying park into a private nursing ho1ne, social welfare was being
promoted was being oblivious of true character of the two and their G
utility. [134D-F)
6.1 Locus standi to approach by way of writ petition and refusal to
grant relief in equity jurisdiction are two different aspects, may be with
the same result. One relates to maintainability of the petition and other
to exercise of discretion. L'!w on.the former has marched much ahead.
H
A
B
c
D
E
F
G
110
SUPREME COt;i{[' REPORTS
[1991] 3 S.C.F
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 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. [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 flied 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 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
maintenance of environment of their locality cannot be said to be busy
bodies or interlopers. Even otherwise physical or personal or economic
injury may give rise to civil or criminal action but violation of rule of
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 beard to plead for restraint in exercise of discretian as
grave issues of public concern outweigh such considerations. [133C-H]
S.P. Gupta v. Union of India, [1982] 2 S.C.R. Akhil Bhartiya
Soshit Karamchari Sangh v. U.O.l., AIR 1981 SC 293 and Fertilizer
Corporation Kamgar Union v. U. 0.1., AIR 1981 SC 364, referred to.
Per Thommen J. (Concurring) I.I Apart from the fact that the
scheme has not been validly altered by the Bangalore Development
Authority, it was not open to the Government in terms of section 65 of
the Bangalore Development Act, 1976 to give a direction to the BDA to
defy the very object of the Act. The orders of the Government dated
H
27.5.1976 and 11.6.1976 and the consequent decision of the BDA dated
r-
MEDICAL TRUST v. B.S. MUDDAPPA
111
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. [1328-D]
A
1.2 The orders in question and the consequent action of the
BDA in allotting to private persons areas reserved for public parks
B
and play grounds and permitting construction of buildings for hospital
thereon are, in the circumstances, declared to be null and void and
of no effect. [132D-E]
2.1 Under Sub-Section (4) of Section 19 of the
Bangalor~
Development Authority Act, 1976 the BDA may, subject to certain
restrictions contained in sub-sections (5) and (6), alter the scheme, but
such alteration has to be carried out pursuant to a formal decision duly
recorded in the manner generally followed by a body corporate. The
scheme is a statutory instrument which is administrative legislation
involving a great deal of general law-making of universal application,
and it is not, therefore, addressed to individual cases of persons and
places, Alteration of the scheme must be for the purpose of improve-
. ment and better development of the City and adjoining areas and for
general application for the benefit of the public at large. Any alteration
of the scheme with a view to conferring a benefit on a particular person,
and without regard to the general good of the public at large, is not an
improvement contemplated by the Section. [122C-E]
Shri Sitaram Sugar Company Limited & Anr. etc. v. Union of
India & Ors., [1990] 1SCR909, 937 et. seq. relied on.
c
D
E
2.2 Under Section 38, the BDA has the power, subject to such
restrictions, conditions etc., as may be prescribed, to lease, sell or
p
otherwise transfer any movable or immovable property which belongs
to it, and to appropriate or apply any land vested in it or acquired by it
for the formation of 'open spaces' or for building purposes or in any other
manner for the purpose of any development scheme. This implies that
land once appropriated or applied or earmarked hy formation of 'open
spaces' or for building purposes or other development in accordance
G
with a duly sanctioned scheme should not be used for any other purpose
unless the scheme itself, which is statutory in character, is formally
altered in the manner that the BDA as a body corporate is competent to
alter. But that power has to be exercised consistently with the appropriation or application of land for formation of 'open spaces' or for build~
ing purposes or any other development scheme sanctioned by the
H
A
B
c
D
E
F
G
H
112
SUPREME COURT REPORTS
i1991] 3 S.C.R.
Government. Any unauthorised deviation from the duly sanctioned
scheme by sacrificing the public interest in the preservation and protection of the environment by means of open space fo~ parks and play
grounds and 'ventilation' will be contrary to the legislative intent, and
an abuse of the statutory power vested in the authorities. Section 38A
inserted by Amendment Act 17of1984 clarifies that it shall not be open
to the BDA to dispose of any area reserved for public parks and
play grounds and civic amenities. Any such site cannot be diverted
to any other purpose. Any action in violation of this provision is
null and void. [123F-H, 124A, D-E]
2.3 Section 16 treats 'public parks and play grounds' as a 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 distinction is that land reserved for a public park and play ground cannot
be utilised for any 'civic amenity' including a hospital. [121B-C]
2.4 One of the main objects of public parks or play grounds is the
promotion of the health of the community by means of ventilation and
recreation. It is the preservation of the quality of life of the community
that is sought to be protected by means of these regulations. [121E-F]
2.5 The legislative intent is to preserve a public park or public
playground in the hands of the general public as represented by the
BDA or any other public authority and prevent private hands from
grabbing them for private ends. [126G]
3.1 The scheme provides for a public park and the land in question remains dedicated to the public and reserved for that purpose. It is
meant for the reasonable accomplishment of the statutory object which is
to promote the orderly development of the city and adjoining areas and
to preserve open space by reserving public parks and play grounds with
a view to protecting the residents from the ill-effects of urbanisation of
the city in a way that maximum space is provided for the benefit of the
public at large for recreation, enjoyment, 'ventilation' and fresh air.
This is clear from the Act itself as it originally stood. The amendments
inserting sections 16(l)(d), 38A and other provisions are clarificatory of
this object. The legislative intent has always been the promotion and
enhancement of the quality of life by preservation of the character and
desirable aesthetic features of the city. [ 128F-H, l29A-B]
MEDICAL TRUST v. B.S. MUDDAPPA
113
3.2 The original scheme, duly sanctioned under'the Act, includes a public park and the land in question has been reserved exclusively for that purpose. Although it is open to the BOA to alter the
scheme, no alteration has been made in the manner contemplated by
section 19(4). [l27F]
3.3 The letters addressed by the Chairman of the BDA to the
Chief Minister and the endorsement made by the Chief Minister on that
letter as well as the orders of the Government sanctioning conversion of
the low level park into a civic amenity site and alloting the same to the
appellant and the resolution adopted by the BDA leave no doubt that
the action of the Government and the BDA resulting in the resolution
have been inspired by individual interests at the costs and to the 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 improvement 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, 0-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 ohJect of the enactment are contemplated by section 65. If a
direction were to be issued by the Government to lease out to private
parties areas reserved in the scheme for public parks and play grounds,
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 BOA-must act reasonably and
rationally and in accordance with law and with due regard to the
legislative intent. [1278-0]
3.5 The BI> Act as enacted in 1976 has undergone several changes
A
B
c
D
E
F
G
but the definition of 'amenity' in Clause (b) or Sec. 2 remains
unchanged. Amenity includes various conveniences such as "road,
drainage, lighting etc. and such other conveniences" as are notified as
H
114
SUPREME COURT REPORTS
I 1991] 3 S.C.R.
A
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 amenities which are notified as civic
amenities by the Government. Clause (bb) which was substituted by Act
,..,
~
II of 1988 defines a civic amenity as, amongst others, a dispensary, a
B hospital, a pathological laboratory, a maternity home and such other
amenity as the Government may by Notification specify. Thus, Clauses
(b) and (bb) of Sec. 2 read together show that all those conveniences
which are enumerated or notified by the Government under Clause (b)
amenities and those amenities which are enumerated or notified by the .
Government under clause (bb) are civic amenities. Significantly, a
·-
c hospital is specifically stated to be a civic amenity. However, the concept of amenity under clause (b) remains unchanged, though, it is
not clear from sub-clause (i) of clause (bb) whether a hospital, which
is not run by the Government or a civic 'Corporation', but by a private body as in the instant case, would qualify as 'civic amenity'.
But the Act of 1988 was merely clarificatory of what was always the
D position and the hospital has always regarded as an 'amenity', if not
a 'civic amenity'. [!19C-G, l20A]
,.
4.1 Protection of the environment, open spaces for recreation and
fresh air, play grounds for children promenade for the residents, and
other conveniences or amenities are matters of great public concern and
E of vital interest to he taken care of in a development scheme. It is that
public interest which is sought to be promoted by the Act by establishing the BDA. [129CJ
4.2 The public interest in the reservation and preservation of
open spaces for parks and play grounds cannot be sacrificed by leasing
J
F or selling such sites to private persons for conversion to some other
user. Any such act would be contrary to the legislative intent and 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 attainment of a quality of life which makes the
G guaranteed rights a reality for all the citizens. [129D-E]
Kharak Singh v. The State of U.P. & Others, [1964] I SCR 332;
f
Municipal Council Railam v. Shri Vardhichand & Ors., [1981] I SCR
97; Francis Coralie Mullin v. 11ze Administrator Union Territory of
Delhi & Ors., [1981] 2 SCR 516; Olga Jellis & Ors. v. Bombay MuniciH pal Corporation & Ors., [1985] 3 SCC 545; Srate of Himachal Pradesh
~. '
MEDICAL TRUST v. B.S. MUDDAPPA
115
& Anr. v. Urned Ram Sharma & Ors., AIR 1986 SC 847 and Vikram
Deo Singh Tomarv. State of Bihar., AIR 1988 SC 1782, referred to.
4.3 Reservation of open spaces for parks and play grounds is
universally recognised as a legitimate exercise of statutory power
rationally related to the protection of the residents of the locality from
the ill-effects of urbanisation. Crowded urban areas tend to spread
disease, crime and immorality. I l29G, 130G]
Karnataka Town and Country Planning Act, 1961; Maharashtra
Regional and Town Planning Act, 1966; Bombay Town Planning Act,
1954; The Travancore Town and Country Planning Act, 1120; The
Madras Town Planning Act 1920; and the Rules framed under these
Statutes; Town & Country Planning Act, 1971 (England & Wales);
Encyclopaedia Americana, Volume 22, page 240; Encyclopaedia of t~e
Social Sciences, Volume XII at page 161; Town improvement Trusts in
India, 1945 by Rai Sahib Om Prakash Aggarawala, p. 35; et. seq.;
Halsbury's Statutes, Fourth Edition, p. 17; et. seq. and Journal of 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 l 1974
Village of Euclid v. Ambler Realty Company, 272 US 365 1926
Halsey v. Essa Petroleum Co. Ltd., [1961] 1 WLR; Thomas J.
Scboenbaum, Environmental Policy Law 1985 p. 438; et. seq.
Summary and Comments 1980 10 E.L.R. 10125; et. seq. and Agins v.
City of Triburon, 447 US 255 1980, referred to.
Samuel Berman v. Andrew Parker, 99 L. Ed. 27 (348 US 26),
referred to.
A
B
c
D
E
4.4 Any reasonable legislative attempt bearing a rational relaF
tionship to a permissible state objective in economic and social planning
will be respected by the courts. A duly approved scheme prepared in
accordance with the provisions of the Act is a legitimate attempt on the
part of the Government and the statutory authorities to ensure a quiet
place free of dust and din where children can run about and the aged
and the infirm can rest, breath fresh air and enjoy the beauty of nature.
G
These provisions are meant to guarantee a quiet and healthy 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 I;
Vi/lag~ of Euclid v. Ambler Realty Company, 272 U.S. 365 1926, and
H
A
116
SUPREME COURT REPORTS
[1991] 3 S.C.R.
T. Damodhar Rao & Ors. v. The Special Officer, Municipal Cor.pora;,.;;..
tion of Hyderabad & Ors., AIR 1987 AP 171, referred to.
5. The residents of the locality are the persons intimately, vitally
and adversely affected by any action of the BDA and the Government
. which is destructive of the environment and which deprives them of
B
facilities reserved for the enjoyment and protection of the health of the
public at large. Being residents of the locality, the petitioners are naturally aggrieved by the orders in question, and they have, therefore, the
necessary locus standi. [13!H, 132A-B]
c
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2750
of 1991.
From the Judgment and Order dated 13.9.89 of the Karnataka
High Court in W.A. No. 162 of 1989.
B.R.L. Iyengar, S.S. Javali, R.V. Narasimhamurthi, E.C.
D
Vidyasagar, G.V. Shantharaju, D.N.N. Reddy, Raju Ramachandran,
K. Jagan Mohan Rao. M. Veerappa and R.P. Wadhwani for the
appearing parties.
The Judgment of the Court was delivered by
E
THOMMEN, J. Leave granted.
F
I have had the advantage of reading in draft the judgment of my
learned Brother Sahai; J. and I am in complete agreement with what
he has stated. It is in support of his reasoning and conclusion that I add
the following words.
·
A site near the Sankey's Tank in Rajmahal Vilas Extension 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 Develop-
. ment Authority Act, 1976 (Karnataka Act No. 12 of 1976) (hereinafter
G
referred to as the "Act") which received the assent of the Governor on
2.3.1976 and is deemed to have come into force on 20.12.1975. By a
notification issued under section 3 of the Act, the Government constituted the Bangalore Developm.ent Authority (the "BOA") thereby
attracting sectio_n 76 which, so far as it is material, reads:
H
"S. 76. REPEAL AND SA VIN GS ( 1) On the issue of the
'
i
,)
) -
"
_,
,, •
.,.
)
' -....
MEDICAL TRUST v. B.S. MUDDAPPA [THOMMEN, J.I
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) shall
stand repealed.
(2) ....................................... ' .........
(3) ....................................... ' .........
Provided further that anything done or any action
taken (including any appointment. notification.