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 13989 of the Karna taka High Court in WA No 162 of 1989
BRL lyengar SS Javali RV Narasimhamurthi EC Vidyasagar GV Shantharaju DNN Reddy Raju Ramachan dran K Jagan Mohan Rao M Veerappa and RP Wadhwani for the appearing parties
The Judgment of the Court was delivered by THOMMEN J
Leave granted
I have had the advantage of reading in draft the judg ment of my learned Brother Sahai J and I am in complete agreement with what he has stated
It is in support of his reasoning and conclusion that I add the following words
A site near the Sankey s Tank in Rajmahal Vilas Exten sion in the City of Bangalore was reserved as an open space in an improvement scheme adopted under the City of Bangalore Improvement Act 1945
This Act was repealed by section 76 of the Bangalore Development Authority Act 1976 Karnataka Act No 12 of 1976 hereinafter referred to as the Act which received the assent of the Governor on 23
1976 and is deemed to have come into force on 2012
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 section 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the Bangalore Development Authority the City of Bangalore Improvement Act 1945 Mysore Act 5 of 1945 shah stand repealed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or taken under the correspond ing provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act Provided also that any reference in any enactment or in any instrument to any provision of the repealed Act shall unless a different intention appears be construed as a reference to the corresponding provision of this Act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 2751976 and 1161976 and by its resolution dated 1471976 the BDA allotted the open space in favour of the appellant a medical trust for the purpose of constructing a hospital
This site is stated to be the only available space reserved in the scheme for a public park or play ground
This allotment has been challenged by the writ petitioners respondents in this appeal who are residents of the locality on the ground that it is contrary to the provisions of the Act and the scheme sanctioned thereunder and the legislative intent to protect and preserve the environment by reserving open space for ventilation  recreation and play grounds and parks for the general pub lic
118 The writ petitioners being aggrieved as members of the general public and residents of the locality have chal lenged the diversion of the user and allotment of the site to private persons for construction of a hospital
The learned Single Judge who heard the writ petition in the first instance found no merit in it and dismissed the same
He held that a hospital being a civic amenity the allotment of the site by the BDA in favour of the present appellant for the purpose of constructing a hospital was valid and in accordance with law
On appeal by the respond ents the residents of the locality the learned Judges of the Division Bench held that the area having been reserved in the sanctioned scheme for a public park its diversion from that object and allotment in favour of a private body was not permissble under the Act even if the object of the allotment was the construction of a hospital
The learned Judges were not impressed by the argument that the proposed hospital being a civic amenity the Act did not prohibit the abandonment of a public park for a private hospital
Accord ingly allowing the respondents  appeal and without preju dice to a fresh allotment by the BDA of any alternative site in favour of the present appellant according to law the writ petition was allowed and the allotment of the site in question was set aside
The appellant s counsel submits that the learned Judges of the Division Bench exceeded their jurisdiction in setting aside an allotment which was purely an administrative action taken by the BDA pursuant to a valid direction issued by the Government in that behalf
He submits that in the absence of any evidence of mala fide the impugned decision of the BDA was impeccable and not liable to be interfered with in writ jurisdiction He says that the decision to allot a site for a hospital rather than a park is a matter within the discre tion of the BDA
The hospital he says is not only an amenity but also a civic amenity under the Act as it now stands and the diversion of the user of the land for that purpose is justified under the Act
The respondents on the other hand contend that it was improper to confer a largesse on a private party at the expense of the general public
The special consideration extended to the appellant they say was not permissible under the Act
To have allotted in favour of the appellant an area reserved for a public park even if it be for the purpose of constructing a hospital was to sacrifice the public interest in preserving open spaces for ventilation  recreation and protection of the environment 119 The scheme is undoubtedly statutory in character
In view of the repealing provisions contained in section 76 of the Act which we have in part set out above the impugned actions affecting the scheme will be examined with reference to the Act
The validity of neither the Act nor the scheme is doubted
The complaint of the writ petitioners respond ents is that the scheme has been violated by reason of the impugned orders
The scheme they point out is a legitimate exercise of statutory power for the protection of the resi dents of the locality from the ill effects of urbanisation and the impugned orders sacrificing open space reserved for a public park is an invalid and colourable exercise of power to suit private interest at the expense of the general public
The Act as enacted in 1976 has undergone several changes but the definition of amenity  in clause b of section 2 remains unchanged Amenity  includes various conveniences  such as road drainage lighting etc
and such other conveniences as are notified as such by the Government
Section 2 was amended in 1984 by Karnataka Act No 17 of 1984 to add clause bb after clause b which distin guished a civic amenity  from an amenity 
Certain ameni ties were specified as civic amenities such as dispen saries maternity homes etc
and those amenities which are notified as civic amenities by the Government
By Act 11 of 1988 clause bb of section 2 was wef 214
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 161d provides section 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
162 says section 162 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 194 If at any time it appears to the authority that an improvement can be made in any part of the scheme the Authority may alter the scheme for the said purpose and shall subject to the provisions of sub sections 5 and 6 forthwith proceed to execute the scheme as altered
 This means that the BDA may subject to certain restrictions contained in sub sections 5 and 6 alter the scheme but such alteration has to be carried out pursuant to a formal decision duly recorded in the manner generally followed by a body corporate
The scheme is a statutory instrument which is administrative legislation involving a great deal of general law making of universal application and it is not therefore addressed to individual cases of persons and places
Alteration of the scheme must be for the purpose of improvement and better development of the City of Bangalore and adjoining areas and for general application for the benefit of the public at large
Any alteration of the scheme with a view to conferring a benefit on a particular person and without regard to the general good of the public at large is not an improvement contemplated by the section
See the principle stated in Shri Sitaram Sugar Company Limited  Anr etc
vs Union of India  Ors 1990 1 SCR 909937 et
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
        emphasis supplied 123 Sub section 2 of this section thus refers to open space including parks and play grounds notified by the Government as reserved for ventilation 
Section 31 prohibits transfer by sale or otherwise of sites for the purpose of construc tion of buildings until all the improvements specified in section 30 including parks and play grounds have been provided for in the estimates
Section 32 prohibits any person from forming any extension or layout for the purpose of construction of buildings without specific sanction of the BDA
Section 33 has empowered the Commissioner of the BDA to order alteration or demolition of buildings con structed otherwise than in conformity with the sanction of the BDA
These provisions have not undergone any material change
Chapter V of the Act deals with property and finance of the BDA
Section 38 reads 38
POWER OF AUTHORITY TO LEASE SELL OR TRANSFER PROPERTY Subject to such restric tions conditions and limitations as may be prescribed the Authority shall have power to lease sell or otherwise transfer any movable or immovable property which belongs to it and to appropriate or apply any land vested in or acquired by it for the formation of open spaces or for building purposes or in any other manner for the purpose of any develop ment scheme emphasis supplied This section also has not undergone any material change
It says that subject to such restrictions conditions etc as may be prescribed the BDA has the power to lease sell or otherwise transfer any movable or immovable property which belongs to it and to appropriate or apply any land vested in it or acquired by it for the formation of open spaces  or for building purposes or in any other manner for the purpose of any development scheme
This implies that land once appropriated or applied or earmarked by formation of open spaces  or for building purposes or other development in accordance with a duly sanctioned scheme should not be used for any other purpose unless the scheme itself which is statutory in character is formally altered in the manner that the BDA as a body corporate is competent to alter
This section of course empowers the BDA to lease or sell or otherwise transfer any property
But that power has to be exercised consistently with the appropriation or application of land for formation of open spaces  or for building purposes or any other development scheme sanctioned by 124 the Government
Property reserved for open space in a duly sanctioned scheme cannot be leased or sold away unless the scheme itself is duly altered
Any unauthorised deviation from the duly sanctioned scheme by sacrificing the public interest in the preservation and protection of the environ ment by means of open space for parks and play grounds and ventilation  will be contrary to the legislative intent and an abuse of the statutory power vested in the authori ties
That this is the true legislative intent is left in no doubt by the subsequent amendment by Act 17 Of 1984 insert ing section 38A which reads 38A PROHIBITION OF THE USE OF AREA RESERVED FOR PARKS PLAY GROUNDS AND CIVIC AMENITIES FOR OTHER PURPOSES The authority shall not sell or otherwise dispose of any area reserved for public parks and play grounds and civic amenities for any other purpose and any disposition so made shall be null and void emphasis supplied This amendment of 1984 which came into force on 17484 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 wef 1611991 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 section 2
Substitution of section 38A For sec tion 38A of the Bangalore Development Authori ty Act 1976 Karnataka Act 12 of 1976 here inafter referred to as the principal Act the following shall be deemed to have been substi tuted with effect from the twenty first day of April 1984 namely 38A Grant of area reserved for civic amenities etc 1 The Authority shall have the power to lease sell or 125 otherwise transfer any area reserved for civic amenities for the purpose for which such area is reserved
2 The Authority shall not sell or otherwise dispose of any area reserved for public parks and playgrounds and civic ameni ties for any other purpose and any disposi tion so made shall be null and void Provided that where the allottee commits breach of any of the conditions of allotment the Authority shall have right to resume such site after affording an opportuni ty of being heard to such allottee
 This new section 38A as clarified in the Statement of Objects and Reasons and in the Explanatory Statement at tached to LA 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 S3
Validation of allotment of civic amenity sites Notwithstanding anything contained in any law or judg ment decree or order of any court or other authority any allotment of civic amenity site by way of sale lease or otherwise made by the authority after the twenty first day of April 1984 and before the Seventh day of May 1988 for the purposes specified in clause bb of Section 2 of the principal Act shall if such site has been made use of for the purpose for which it is allotted be deemed to have been validly made and shall have effect for all purposes as if it had been made under the principal Act as amended by this Act and accordingly i all acts or proceedings or things done or allotment made or action taken by the Authority shall for all purposes be deemed to be and to have always been done or taken in accordance with law and ii no suit or other proceedings shall be instituted maintained or continued in any court or before any authority for cancellation of such allotment or demolition of buildings constructed on the sites so allotted after obtaining building licences from the Authority or the local authority concerned or for questioning the validity of any action or things taken or done under section 38A of the principal Act as amended by this Act and no court shall enforce or recognise any decree or order declaring any such allotment made action taken or things done under the principal Act as invalid The evil that was sought to be remedied by the validation provision is in regard to allotment of civic amenity sites and not public parks or play grounds see also the Explanatory Statement attached to the Bill
All these provisions unmistakably point to the legislative intent to preserve a public park or public play ground in the hands of the general public as represented by the BDA or any other public authority and thus prevent private hands from grab bing them for private ends
it must also be stated here that the validation clause relates to the period between 214
1984 and 75 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 161d 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 2751976 and 1161976 and the resolution of the BDA dated 14776 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
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 194
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 CA 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 1761976 regarding allotment of CA site situated next to the land allotted to HKE 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 161d 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 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 vs The State of UP  Others 1964 1 SCR 332 Municipal Council Ratlam vs Shri Vardhichand  Ors   Francis Coralie Mullin vs The Administrator Union Territory of Delhi  Ors   Olga Tellis  Ors
vs Bombay Municipal Corporation  Ors   State of Himachal Pradesh  Anr
vs Umed Ram Sharma  Ors  and Vikram Deo Singh Tomar vs State of Bihar  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 eg 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
  Halsburys Statutes Fourth Edition p 17 et
and Journal of Planning  Environment Law 1973 p 130 et
See also Penn Cen tral Transportation Company vs City of New York  1978 Village of Belle Terre vs Bruce Bora as  1974 Village of Euclid vs Ambler Realty Company 1926 and Halsey vs Esso Petroleum Co Ltd In Agins vs City of Tiburon  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 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
See also Summary and Comments 1980 10ELR 10125 et
 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 US Supreme Court in Samuel Berman vs Andrew Parker 99 1
Ed 27  
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 US Supreme Court in Village of Belle Terre vs Bruce Boraas 1 
The police power is not confined to elimination of filth stench and unhealthy places
It is ample to lay out zones where family values youth values and the blessings of quiet seclusion and clean air make the area a sanctuary for people
See also Village of Euclid vs Ambler Realty Company 1926
See the decision of the Andhra Pradesh High Court in T Damodhar Rao  Ors
vs 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 275
1976 and 1161976 and the consequent decision of the BDA dated 147
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
RM 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 194 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 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 SP Gupta vs Union of India  Akhil Bhartiya Soshit Kararnchari Sangh vs UOI and Fertilizer Corporation Karngar Union vs
UOI 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 mn
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 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 OrchardsSadashiv 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
5676 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 303
1976 for grant of vacant land situated next to that given to HKE 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 13485 sq
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 CA 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 567 6 77 dated 2141976 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 CA 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 HKE Society in Rajmahal Vilas Extension Bangalore as a civic amenity site
By order and in the name of the Governor of Karna taka sd SR Shankaranarayana Rao Ic
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 CA site to Banga lore Medical Trust for Construction of a hospital
ORDER NO
HMA 249 MNG 76 BANGALORE DATED THE 17TH JUNE 1976
READ 1Govt
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 13276 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 HKE 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 KG 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 CA Site situated next to the land allotted to HKE 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 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 23I 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 vs 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 194 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 2bb 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 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 90000 dollars in foreign depos its query on it by the Chief Minister of the State guid ance of wayout 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 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 tolegislative 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 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 194 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 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 2b 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 2bb 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 194 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 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 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 194
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 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
NPV Appeal dis missed


Summary:
Article 3242 of the Constitution empowers the Presi dent to fix and appoint such number of Election Commission ers as he may from time to time determine
By a notification dated 7101989 the President fixed the number of Election Commissioners at two
By another notification dated 161089 the President appointed the petitioner and another person as Election Commissioners
Simultaneously the Presi dent also promulgated the rules regulating the conditions of service and tenure of the Election Commissioners under which an Election Commissioner was to hold office for a term of five years or until he attained the age of 65 years whichev er was earlier
However on 1st January 1990 the President issued two notifications rescinding the earlier two notifications dated 71089 and 161089
Consequently the two posts of Elec tion Commissioners were abolished and the appointment of the petitioner and the other Election Commissioner came to an end
159 160 The petitioner filed a writ petition in this Court challenging the legality of the notifications dated 1st January 1990 contending that a the Election Commission being an independent body the abolition of the posts of Election Commissioners and their consequent removal tampered with the independence of the Election Commission directly or indirectly b in view of the service rules made by the President the Election Commissioners were entitled to con tinue in office for full tenure of five years or until they attained the age of 65 years whichever was earlier c the notification abolishing the two posts and removing the petitioner and the other Election Commissioner were issued mala fide under the advice of the Chief Election Commission er d Petitioner s removal affected him materially and e the flashing of the photographs of the petitioner and other Election Commissioner while announcing their removal on the television during a news bulletin subjected them to severe loss of dignity and reputation  Dismissing the petition this Court HELD 1
The Election Commission as envisaged by the Constitution is an independent institution and has to func tion as such
In the discharge of its duties and functions it is not amenable to the control of any other body
The salient features of the composition of the Election Commis sion as given in Article 324 are that the Commission shall always consist of a permanent incumbent viz the Chief Election Commissioner
But the President has also been given the power to appoint such number of other Election Commis sioners as he may from time to time fix
While the ap pointment of the Chief Election Commissioner is a must the appointment of the other Election Commissioner or Commis sioners is not obligatory
The number of other Election Commissioners is left to the discretion of the President depending upon the need felt from time to time
169A B C 11 However in the matter of the conditions of service and tenure of office of the Election Commissioners a dis tinction is made between the Chief Election Commissioner on the one hand and Election Commissioners and Regional Commis sioners on the other
Whereas the conditions of service and tenure of office of all are to be such as the President may by rule determine a protection is given to the Chief Elec tion Commissioner in that his conditions of service shall not be varied to his disadvantage after his appointment and he shall not be removed from his office except in like manner and on the like grounds as a judge of the Supreme Court
These protections are not available either to the Election Commissioners or to the Regional Commissioners
Their conditions 161 of service can be varied even to their disadvantage after their appointment and they can be removed on the recommenda tion of the Chief Election Commissioner although not other wise
Thus in these two respects not only the Election Commissioners are not on par with the Chief Election Commis sioner but they are also placed on par with the Regional Commissioners although the former constitute the Commission and the latter do not and are only appointed to assist the Commission
169H 170A B C Article 3244 though spells out the relationship be tween Election Commission and Regional Commissioners does not help to throw light on the relationship between the Chief Election Commissioner and Election Commissioners inter se
The fact that the Regional Commissioners are to be appointed by the President in consultation with the Commis on to asist the Commission to perform its functions though places the Election Commissioners on a higher pedestal than the Regional Commissioners does not raise them to the status of the Chief Election Commissioner
The Chief Election Commissioner does not therefore appear to be primus inter partes ie first among the equals but is intended to be placed in a distinctly higher position
Therefore it cannot be held that the Election Commissioners have the same powers and the authority as the Chief Election Commissioner and it may well be that the Chief Election Commissioner has the power to disregard and override the views of the Election Commissioners the abolition of their posts therefore least infringed on the independence of the Commission
175B 174H 175A 170E 180B 12 The petitioner and the other Election Commissioners were appointed when the work of the Commission did not warrant their appointment
It is evident from record that the then Government had thought it fit to make the two appointments although there was no need to do so
What other considerations weighed with the then Government in making the appointment is anybody s guess and the Court does not propose to go into them
However it was expected that the Union of India would candidly admit the initial mistake of making the said appointments rather than defend them on non existent grounds
Not only there was no need for the said appointments but also the appointments in the absence of the definition of their roles in the Commission were creating an untoward and unworkable situation rendering the Commission internally torn and ineffectual in its function ing
Thus the manner of appointment of the Election Commis sioners and the attitude adopted by them in the discharge of their functions was hardly calculated to ensure free and independent functioning of the Commission much less its smooth working
175E 179C D E 178C 162 12
In view of the fact that there was no need for the posts of the Election Commissioners at the time the appoint ments were made and that in the absence of a clear defini tion of their role in the Commission particularly vis a vis the Chief Election Commissioner the appointments were an oddity the abolition of the posts far from striking at the independence of the Commission paved the way for its smooth and effective functioning
179H 180A 2
The instant case is not a case of a premature termi nation of service
It is a clear case of the abolition of posts and the termination of the service is a consequence thereof
Hence the termination of service is not open to challenge on the ground of any illegality
180D E 3
The allegations of mala fides against the Chief Election Commissioner are hard to accept
The removal of the Election Commissioners was not on the recommendations of the Chief Election Commissioner under the 2nd proviso to clause 5 of the Article 324
Nothing has been brought on record to show that even otherwise the Government while abolishing the posts had acted on the suggestion of the Chief Election Commissioner
On the other hand the records shows that although there were bickerings even on petty issues all the decisions were taken ultimately unanimously
It is however another thing that this unison in working in the circum stances could not have been guaranteed for all time to come and the Government if they desired the continuance of the two Commissioners had an option to make the rules of business
That the Government chose one rather than the other option is no ground to allege mala fides against them and much less against the Chief Election Commissioner
181B 180F H 181A 4
Material loss on account of cutting short of the tenure is not unknown in a service career and is one of the exigencies of employment
The creation and abolition of post is the prerogative of the executive and in the present case of the President
Article 3242 leaves it to the President to fix and appoint such number of Election Commissioners as he may from time to time determine
The power to create the posts is unfettered
So also is the power to reduce or abolish them
If therefore the President finding that there was no work for the Election Commissioners or that the Election Commission could not function decided to abolish the posts that was an exigency of the office held by the petitioner
181C D 5
The flashing of the photographs of the petitioner and the other Election Commissioner in the news bulletin by the Doordarshan was 163 clearly uncalled for
Although there is nothing on record to show at whose instance it was done yet the act deserves condemnation in the strongest language
It was within the powers of the Government to investigate the incident and it could have offered to investigate the event and to make proper amends to the petitioner and the other Election Commissioner
Instead it has casually dismissed the incident by a mechanical denial of it
The attitude adopted by the Government towards the erstwhile public servants is strongly disapproved
182E F G H 183A 6
It appears that there is an impression in some quar ters that if the Government admits its mistake whether it is committed by the same Government or the earlier Government it loses its face
Nothing can be farther from reality
In a democratic regime the Government represents the people
It adds to its respectability and credibility if the Govern ment also owns its mistakes frankly
179D E 7
In the absence of rules to the contrary the members of a multi member body are not and need not always be on par with each other in the matter of their rights authority and powers
174C 71 It is an acknowledged rule of transacting business in a multimember body that when there is no express provi sion to the contrary the business has to be carried on unanimously
The rule to the contrary such as the decision by majority has to be laid down specifically by spelling out the kind of majority whether simple special of all the members or of the members present and voting etc
174E 72 In a case such as that of the Election Commission which is not merely an advisory body but an executive one it is difficult to carry on its affairs by insisting on unanimous decisions in all matters
No procedure has been laid down for transacting the business when Election Commis sioners are appointed
Hence a realistic approach demands that either the procedure for transacting business is spelt out by a statute or a rule either prior to or simultaneously with the appointment of the Election Commissioners or that no appointment of Election Commissioners is made in the absence of such procedure
174F G 8
There is no doubt that two heads are better than one and particularly when an institution like the Election Commission is entrusted with vital functions and is armed with exclusive uncontrolled power to execute them it  is both necessary and desirable that the powers are not exer cised by one individual however all wise he may be
It iII conforms the tenets of the democratic rule
It is true that the inde 164 pendence of an institution depends upon the persons who man it and not on their number
A single individual may some times prove capable of withstanding all the pulls and pres sures which many may not
However when vast powers are exercised by an institution which is accountable to none it is politic to entrust its affairs to more hands than one
It helps to assure judiciousness and want of arbitrariness
The fact however remains that where more individuals than one man an institution their role have to be clearly defined if the functioning of the institution is not to come to a naught
178E G