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

JULY 19, 1991

B [T.K. THOMMEN AND R.M. SAHA!, JJ.]

Town Planning. Bangalore Development Authority Act, 1976: Sections 2(b), 2(bb), 15, 16( l)(d), 17, 19(4), 38, 38A and 65-Approved Scheme for development of the City-Space reserved for public park-Diversion C and allotment to a private Trust for construction of hospital-Whether valid-Exercise of power to alter the Scheme-Whether valid-Power of the Government to issue directions to the statutory authority regard- ing the user of the site and allotment to a private body-Whether unres- tricted-Whether statutory authority bound by Government's directions. D Constitution of India, I950: Articles 32, 226---Pub/ic Interest Litigation-Object and scope of-Space reserved for public park- Diversion for construction of a hospital and allotment to a private body-Whether residents of locality have locus standi to challenge the action of the authorities.

E Administrative Law-Administrative action-Discretion shquld be exercised objectively and rationally, when affecting public interest- Authority not to act whimsically or arbitrarily.

A site in the city of Bangalore was reserved as an open space in an improvement scheme adopted under the City of Bangalore Improve- F ment Act, 1945. This Act was replaced hy the Bangalore Development Authority Act, 1976 and the scheme prepared m1der the repealed enact- ment was deemed to have been prepared and duly sanctioned by the Government in terms of the new Act. In the scheme, the open space in question had been reserved for a public park. However, pursuant to the orders of the State Government, and by a Resolution, the Bangalore G Development Authority allotted the open space in favour of the appel- lant, a private medical Trust, for the purpose of constructing a hospital. This allotment and diversion of the user of the site was challenged before the High Court by the respondents, as residents of the locality and as general public, contending that it was contrary to the provisions of the Act and the scheme sanctioned thereunder, and the legislative H intent to protect and preserve the environment by reserving open space for ventilation, recreation and play grounds and parks for the general public.

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

On appeal, the Division Bench held that though the BDA had the c authority to deal with the plot in question, the area, having been reserved in the sanctioned scheme for a public park, its diversion from that object and allotment in favour of a private body was not permissi- ble under the Act, even if the object of the allotment was the construc- tion of a hospital, since a hospital could not be considered to be an D amenity in 1976, and that in alloting the site to the appellant-Trust, largesse was conferred on it in utter violation of law and rules, and set aside the allotment of the site in question to the appellant with liberty to the BDA to make a fresh allotment of any alternative site in favour of the appellant. E In appeal before this Court, on behalf of the appellant-trust, it was contended that the Division Bench exceeded its jurisdiction in set- ting aside an allotment which was purely an administrative action by the BDA pursuant to a valid direction by the Government in that ' behalf, that in the absence of any evidence of mala fide the decision of the BDA was not liable to be interfered with, that the decision to allot a F site for a hospital rather than a park was a matter within the discretion of the BDA and that the hospital being not only an amenity hut also a civic amenity under the Act, as amended from time to time, the diver- sion of the user of the land for that purpose was justified, that under Section 65 the BDA was bound by all directions of the Government, irrespective of the nature or purpose of the directions, and that Section G 38A prohibiting sale or any other disposal of land reserved for 'public parks or playgrounds and Section 16(l)(d) requiring that 15% of the total area of the lay out be reserved for public parks and playgrounds and an additional area of not less than 10% of the total area for civic amenities were enacted subsequent to the relevant orders of the Government dated 27 .5. 76 and 11.6. 76 and the resolution of the BDA He dated 14.7.76 resulting in the allotment of the site in favour of the A appellant and at the material time when the Government made these orders and the BDA acted upon them, there was no restriction on the diversion of the user of the land reserved for the public park or a playground to any other purpose.

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B On behaif of the respondents, it was contended that it was impro- per to confer a largesse on a private party at the expense of the general public and the special consideration extended to the appellant was not permissible under the Act, and that to allot in favour of the appellant an area reserved for public park even if it be for the purpose of cunstruct- ing a hospital was to sacrifice the public interest in preserving the open spaces for ventilation, recreation and protection of the environment. c Dismissing the appeal, this Court,

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

2.1 The purpose for which the Bangalore Development Authority Act, 1976 was enacted is spelt out from the preamble itself which pro- vides. for establishment of the Authority for development of the city and areas adjacent thereto. To carry out this purpose, the development scheme framed by the Improvement Trust was adopted by the Develop- ment Authority. Any alteration in this scheme could have been made as provided in Sub-Section (4) of Section 19 only if it resulted in improve- ment in any part of the scheme. A private Nursing Home could neither be considered to be an amenity nor it could be considered improvement over necessity like a public park. 1'he exercise of power, therefore, was contrary to the purpose for which it is conferred under the statute. [141G-H)

2.2 The legislative mandate undt.· ';ec. 19(4) enables the Autho- rity to alter any scheme. Thus, existei.. " of power is clearly provided for. But the legislature took care to cu .. twl the exercise of this power by linking it with improvement in the 'rhcme. What is an improve- ment or when any change in the scheme can be said to be improve- A ment is a matter of discretion by the authority empowered to exer- cise the power. [142C-D]

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

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

3.1 When legislature enacted Sub-Section (4), it unequivocally declared its intention of making any alteration in the scheme by the Authority, that is, BDA and not the State Government. It further D permitted interference with the scheme sanctioned by it only if it appeared to be improvement. Therefore, the facts that were to be found by the Authority were that the conversion of public park into private Nursing Home would be an improvement in the scheme. Neither the Authority nor the State Government undertook any such exercise. Power of conversion or alteration in scheme was taken for granted. E There is no whisper anywhere if it was ever considered, objectively, by any authority that the nursing home would amount to an improvement. Whether the decision would have been correct or not would have given rise to different consideration. But it was a total absence of any effort to do so. [J44G-H, 145A, G] F 3.2 The manner in which power was exercised fell below even the minimum requirement of taking action on relevant considerations. A scheme could be altered by the Authority, as defined under Section 3 of the Act. It is a body corporate consisting of the Chairman and experts on various aspects. This Authority functions through committees and meetings as provided under Sections 8 & 9. The purpose of the Autho- G rity taking such a decision is their knowledge of local conditions and what was better for them. That is why participatory exercise is contem- plated. Yet, without calling any meeting of the authority or any com- mittee the Chairman sent the letter for converting the site. If any altera- tion could be done by the Chariman or the Chief Minister, then sub- section (4) of Section 19 is rendered otoise. [145E, F, 146A-B] H

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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 resolu- tion of BDA which was more or less a formality. In less than ninety days, the machinery in BDA and Government moved so swiftly that the initiation of the proposal, by the appellant, a rich trust with foreign deposits, query on it by the Chief Minister of the State, guidance of way out by the Chairman, direction on it by the Chief Minister, orders of Govt., resolution by the BDA and allotment were all completed and the c site for public park stood converted into site for private nursing home without any intimation direct or indirect to those who were being de- prived of it. [141A-C]

3.4 Speedy or quick action in public institutions call for apprecia- D tion but our democratic system shuns exercise of individualised discre- tion in public matters requiring participatory decision by rules and regulations. No one howsoever high can arrogate to himself or assume without any authorisation express or implied in law a discretion to ignore the rules and deviate from rationality hy adopting a strained or distorted interpretation as it renders the action ultra vires and bad 'in 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 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 the State Government could play in a scheme altered by the BDA is specified in Sub-Sections (5) and (6) of Section 19 of the Act, viz, the State Government could be concerned or involved with an altered scheme either because of the financial considerations or when addi- tional land was to be acqnired, an exercise which could not be underta- ken by the BDA. A development scheme, therefore, sanctioned and published in the Gazette could not be altered hy the Government. [146B, G-H, 147A]

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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 c the Chief Executive of the State. This resulted not only in error of law, but much beyond it. [I46F] ' 3.8 Under Sub-Section (3) of Section 15, the State Government has power to direct the Authority to take up any scheme. The main D thrust of the Sub-Section is to keep a vigil on the local body. But it cannot be stretched to entitle the Government to alter any scheme or convert any site or power specifically reserved in the Statute in the Anthority which functions as a body. The general power of direction to take up development scheme cannot be construed as superseding specific power conferred and provided for under Section 19(4). Absence E of power apart, such exercise is fraught with danger of being activated by extraneous considerations. [l47D-E]

3.9 An exercise of power which is ultra vires the provisions in ihe Statute cannot be attempted to be resuscitated on general powers reserved in a Statute for its proper and effective implementation. F Section 65 authorises the Government to issue directions to carry out purposes of the Act and to ensure that the provisions of law are obeyed, and not to empower itself to proceed contrary to law. What is not permitted by the Act to be done by the Authority cannot be assumed to be done by State Governmeni to render it legal. An illegality cannot be cured only because it was undertaken by the Government, or because it G is done at the behest of the Chief Executive of the State. No one is above law. In a democracy what prevails is law and rule and not the height of the person exercising I.he power. [l47G-H, I48A-B]

3. IO Amenity was defiped in Section 2(b) of the Act to include road, street, lighting, drainage, public works and such other con- H

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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 mean- ing so as to include hospital added in clause 2(bb), as a civic amenity with effect from 1984, a private nursing home, unlike a hospital run by Govt. or local authority, did not satisfy that characteristic which was necessary, in the absence of which it could not be held to be amenity or civic amenity. In any case, a private nursing home could not be con- c sidered to be an improvement in the scheme and, therefore, the power under Section 19(4) could not have been exercised. [I45A-D]

4.1 Discretion is an effective tool in administration. But wrong notions about it result in ill-conceived consequences. In law it provides D an option to the authority concerned to adopt one or the other alterna- tive. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objec- tively and rationally what serves the interest better. When a Statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even E where Statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly. [144E-G]

4.2 The executive or the administrative authority must not be F oblivious that in a democratic set up the people or community being sovereign, the exercise of discretion must be guided by the inherent philosophy that the exerciser of discretion is accountable for his action. It is to be tested on anvil of rule of law and fairness or justice particularly if competing interests of members of society are involved. [l44C-D I

G 4.3 When the law requires an authority to act or decide, 'if it appears to it necessary' or if he is 'of opinion that a particular act should be done', then it is implicit that it should be do11e objectively, fairly and reasonably. Decisions affecting public interest or the neces- sity of doing it in the light of guidance provided by the Act and rules may not require intimation to person affected yet the exercise of discre· H tion is vitiated if the action is bereft of rationality, lacks objective and 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

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5.1 Public park as a place reserved for beauty and recreation .is c associated with grawth of the concept of equality and recognition of importance of common man. Earlier free and healthy air in beautiful surroundings was privilege of few. But now it is a 'gift from people to themselves'. Its importance has multiplied with emphasis on environ- ment and pollution. In modern planning and development it occupies an D important place in social ecology. A private nursing home, on the other hand, is essentially a commercial venture, a profit oriented industry. Service may be its moto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park. [134A-C] E 5.2 In 1984, the BD Act itself provided for reservation of not less than fifteen per cent of the total area of the lay out in a development scheme for public parks and playgrounds, the sale and disposition of -. which is prohibited under Sec. 38A of the Act. Absence of open space and public p3.rk, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may 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 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

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Many milestones have been covered. The restricted meaning of A aggrieved person and narrow outlook of specific injury has yielded in favour of broad and wide construction in the wake of public interest litigation. Even in private challenge to executive or administrative r- action having extensive fall out the dividing line between personal injury or loss and injury of a public nature is fast vanishing. [133B-C] B 6.2 Law has veered round from genuine grievance against order affecting prejudicially to sufficient interest in the matter. The rise in exercise of power by the executive and comparative decline in power and effective administrative guidance is forcing citizens to expose challenges with public interest flavour. Therefore, it is too late in the day to claim that petition flied by inhabitants of a locality whose park c was converted into a nursing home had no cause to invoke equity juris- diction of the High Court. In fact, public spirited citizens having faith in rule of law are rendering great social and legal service by espousing cause of public nature. They cannot be ignored or overlooked on techni- cal or conservative yard stick of the rule of locus standi or absence of 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 accounta- bility of those entrusted with responsibility of the administration. It furnishes enough, cause of action either for individual or community in general to approach by way of writ petition and the authorities cannot be permitted to seek shelter under cover of technicalities of locus standi nor they can be beard to plead for restraint in exercise of discretian as grave issues of public concern outweigh such considerations. [133C-H]

S.P. Gupta v. Union of India, [1982] 2 S.C.R. Akhil Bhartiya Soshit Karamchari Sangh v. U.O.l., AIR 1981 SC 293 and Fertilizer Corporation Kamgar Union v. U. 0.1., AIR 1981 SC 364, referred to. G Per Thommen J. (Concurring) I.I Apart from the fact that the scheme has not been validly altered by the Bangalore Development Authority, it was not open to the Government in terms of section 65 of the Bangalore Development Act, 1976 to give a direction to the BDA to defy the very object of the Act. The orders of the Government dated H 27.5.1976 and 11.6.1976 and the consequent decision of the BDA dated

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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]

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 Bangalor~ Development Authority Act, 1976 the BDA may, subject to certain restrictions contained in sub-sections (5) and (6), alter the scheme, but c such alteration has to be carried out pursuant to a formal decision duly recorded in the manner generally followed by a body corporate. The scheme is a statutory instrument which is administrative legislation involving a great deal of general law-making of universal application, and it is not, therefore, addressed to individual cases of persons and D places, Alteration of the scheme must be for the purpose of improve- . ment and better development of the City and adjoining areas and for general application for the benefit of the public at large. Any alteration of the scheme with a view to conferring a benefit on a particular person, and without regard to the general good of the public at large, is not an improvement contemplated by the Section. [122C-E] E

Shri Sitaram Sugar Company Limited & Anr. etc. v. Union of India & Ors., [1990] 1SCR909, 937 et. seq. relied on.

2.2 Under Section 38, the BDA has the power, subject to such restrictions, conditions etc., as may be prescribed, to lease, sell or p otherwise transfer any movable or immovable property which belongs to it, and to appropriate or apply any land vested in it or acquired by it for the formation of 'open spaces' or for building purposes or in any other manner for the purpose of any development scheme. This implies that land once appropriated or applied or earmarked hy formation of 'open spaces' or for building purposes or other development in accordance G with a duly sanctioned scheme should not be used for any other purpose unless the scheme itself, which is statutory in character, is formally altered in the manner that the BDA as a body corporate is competent to alter. But that power has to be exercised consistently with the appropri- ation or application of land for formation of 'open spaces' or for build~ ing purposes or any other development scheme sanctioned by the H

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A Government. Any unauthorised deviation from the duly sanctioned scheme by sacrificing the public interest in the preservation and protec- tion of the environment by means of open space fo~ parks and play grounds and 'ventilation' will be contrary to the legislative intent, and an abuse of the statutory power vested in the authorities. Section 38A B inserted by Amendment Act 17of1984 clarifies that it shall not be open to the BDA to dispose of any area reserved for public parks and play grounds and civic amenities. Any such site cannot be diverted to any other purpose. Any action in violation of this provision is null and void. [123F-H, 124A, D-E]

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

2.4 One of the main objects of public parks or play grounds is the promotion of the health of the community by means of ventilation and recreation. It is the preservation of the quality of life of the community that is sought to be protected by means of these regulations. [121E-F] E 2.5 The legislative intent is to preserve a public park or public playground in the hands of the general public as represented by the BDA or any other public authority and prevent private hands from grabbing them for private ends. [126G]

3.1 The scheme provides for a public park and the land in ques- F tion remains dedicated to the public and reserved for that purpose. It is meant for the reasonable accomplishment of the statutory object which is to promote the orderly development of the city and adjoining areas and to preserve open space by reserving public parks and play grounds with a view to protecting the residents from the ill-effects of urbanisation of the city in a way that maximum space is provided for the benefit of the 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]

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3.2 The original scheme, duly sanctioned under'the Act, inclu- A des a public park and the land in question has been reserved exclusi- vely for that purpose. Although it is open to the BOA to alter the scheme, no alteration has been made in the manner contemplated by section 19(4). [l27F]

3.3 The letters addressed by the Chairman of the BDA to the B Chief Minister and the endorsement made by the Chief Minister on that letter as well as the orders of the Government sanctioning conversion of the low level park into a civic amenity site and alloting the same to the appellant and the resolution adopted by the BDA leave no doubt that the action of the Government and the BDA resulting in the resolution have been inspired by individual interests at the costs and to the disad- vantage of the general public. Public interest does not appear to have c guided the minds of the persons responsible for diverting the user of the open space for allotment to the appellant. Conversion of the open space reserved for a park for the general good of the public into a site for the construction of a privately owned and managed hospital for private gains is not an alteration for improvement of the scheme as contemp- D lated by Section 19, and the orders in question in that behalf are a flagrant violation of the legislative intent and a colourable exercise of power. In the circumstances, no valid decision has been taken to alter the scheme. [127G-H, 128A, 0-F]

3.4 The power of the Government to give direCtions to the Au- E thority under section 65 is not unrestricted. The object of the directions must be to carry out the object of the Act and not contrary to it. Only such directions as are reasonably necessary or expedient for carrying out the ohJect of the enactment are contemplated by section 65. If a direction were to be issued by the Government to lease out to private parties areas reserved in the scheme for public parks and play grounds, such a direction would not have the sanctity of section 65. Any such diversion of the user of the land would be opposed to the statute as well as the object in constituting the BDA to promote the healthy develop- ment of the city and improve the quality of life. Any repository of power-be it the Government or the BOA-must act reasonably and rationally and in accordance with law and with due regard to the legislative intent. [1278-0]

3.5 The BI> Act as enacted in 1976 has undergone several changes but the definition of 'amenity' in Clause (b) or Sec. 2 remains unchanged. Amenity includes various conveniences such as "road, drainage, lighting etc. and such other conveniences" as are notified as H

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such by the Government. The section was amended in 1984, and to add A clause (bb) after clause (b) which distinguished a civic amenity from amenity ,and specified as civic amenities, such as dispensaries, mater- nity homes, etc. and those amenities which are notified as civic ,.., ~ amenities by the Government. Clause (bb) which was substituted by Act II of 1988 defines a civic amenity as, amongst others, a dispensary, a B hospital, a pathological laboratory, a maternity home and such other amenity as the Government may by Notification specify. Thus, Clauses (b) and (bb) of Sec. 2 read together show that all those conveniences which are enumerated or notified by the Government under Clause (b) amenities and those amenities which are enumerated or notified by the . Government under clause (bb) are civic amenities. Significantly, a hospital is specifically stated to be a civic amenity. However, the con- ·- c cept of amenity under clause (b) remains unchanged, though, it is not clear from sub-clause (i) of clause (bb) whether a hospital, which is not run by the Government or a civic 'Corporation', but by a pri- vate body as in the instant case, would qualify as 'civic amenity'. But the Act of 1988 was merely clarificatory of what was always the 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 of vital interest to he taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establish- ing the BDA. [129CJ

4.2 The public interest in the reservation and preservation of J open spaces for parks and play grounds cannot be sacrificed by leasing 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 guaranteed rights a reality for all the citizens. [129D-E]

Kharak Singh v. The State of U.P. & Others, [1964] I SCR 332; f Municipal Council Railam v. Shri Vardhichand & Ors., [1981] I SCR 97; Francis Coralie Mullin v. 11ze Administrator Union Territory of Delhi & Ors., [1981] 2 SCR 516; Olga Jellis & Ors. v. Bombay Munici- H pal Corporation & Ors., [1985] 3 SCC 545; Srate of Himachal Pradesh

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& Anr. v. Urned Ram Sharma & Ors., AIR 1986 SC 847 and Vikram A Deo Singh Tomarv. State of Bihar., AIR 1988 SC 1782, referred to.

~. 4.3 Reservation of open spaces for parks and play grounds is ' universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanisation. Crowded urban areas tend to spread B disease, crime and immorality. Il29G, 130G]

Karnataka Town and Country Planning Act, 1961; Maharashtra Regional and Town Planning Act, 1966; Bombay Town Planning Act, 1954; The Travancore Town and Country Planning Act, 1120; The Madras Town Planning Act 1920; and the Rules framed under these Statutes; Town & Country Planning Act, 1971 (England & Wales); c Encyclopaedia Americana, Volume 22, page 240; Encyclopaedia of t~e Social Sciences, Volume XII at page 161; Town improvement Trusts in India, 1945 by Rai Sahib Om Prakash Aggarawala, p. 35; et. seq.; Halsbury's Statutes, Fourth Edition, p. 17; et. seq. and Journal of Plan- ning & Environment Law, 1973, p. 130 et. seq. Penn Central Transpor- D tation Company v. City of New York, 57 L. Ed. 2d 631 438 US 104 1978; Village of Belle Terre v. Bruce Boraas, 39 L. Ed. 2d 797 416 US l 1974 Village of Euclid v. Ambler Realty Company, 272 US 365 1926 Halsey v. Essa Petroleum Co. Ltd., [1961] 1 WLR; Thomas J. Scboenbaum, Environmental Policy Law 1985 p. 438; et. seq. Summary and Comments 1980 10 E.L.R. 10125; et. seq. and Agins v. E City of Triburon, 447 US 255 1980, referred to.

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

4.4 Any reasonable legislative attempt bearing a rational rela- F tionship to a permissible state objective in economic and social planning will be respected by the courts. A duly approved scheme prepared in accordance with the provisions of the Act is a legitimate attempt on the part of the Government and the statutory authorities to ensure a quiet place free of dust and din where children can run about and the aged and the infirm can rest, breath fresh air and enjoy the beauty of nature. G These provisions are meant to guarantee a quiet and healthy atmosp- here to suit family needs of persons of all stations. Any action which tends to defeat that object is invalid. [131D-F]

Village of Belle Terre v. Bruce Boraas, 39 L. Ed. 2d 797 416 US I; Vi/lag~ of Euclid v. Ambler Realty Company, 272 U.S. 365 1926, and H

p. 116 Copy page pinpoint

T. Damodhar Rao & Ors. v. The Special Officer, Municipal Cor.pora;,.;;.. A tion of Hyderabad & Ors., AIR 1987 AP 171, referred to.

5. The residents of the locality are the persons intimately, vitally and adversely affected by any action of the BDA and the Government .which is destructive of the environment and which deprives them of B facilities reserved for the enjoyment and protection of the health of the public at large. Being residents of the locality, the petitioners are natur- ally aggrieved by the orders in question, and they have, therefore, the necessary locus standi. [13!H, 132A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2750 of 1991. c From the Judgment and Order dated 13.9.89 of the Karnataka High Court in W.A. No. 162 of 1989.

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