9911796707
TMI Blog1991 (7) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... rnor on 2.3. 1976 and is deemed to have come into force on 20.12. 1975. By a notification issued under section 3 of the Act, the Government constituted the Bangalore Development Authority (the BDA ) thereby attracting section 76 which, so far as it is material, reads: S. 76. REPEAL AND SAVINGS (1) On the issue of the 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the Bangalore Development Authority, the City of Bangalore Improvement Act, 1945 (Mysore Act 5 of 1945) shah stand repealed.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taken under the correspond- ing provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act: Provided also that any reference in any enactment or in any instrument to any provision of the repealed Act shall unless a different intention appears be construed as a reference to the corresponding provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 hospi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a public park and play ground cannot be utilised for any 'civic amenity' including a hospital. 16(2) says: S. 16(2) may, within the limits aforesaid, provide for- (b) forming open spaces for the better ventilation 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 Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 restrictions, 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 development scheme. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic amenities. Any such site cannot be diverted to any other purpose. Any action in violation of this provision is null and void. The legislative intent to prevent the diversion of the user of an area reserved for a public park or play ground or civic amenity is reaffirmed by the Bangalore Development Authority (Amendment) Act, 1991 (Karnataka Act No. 18 of 1991) which came into force w.e.f. 16.1.1991, and which substituted a new section 38A in the place of the earlier provision inserted by Act 17 of the 1984. Section 2 of the Karnataka Act 18 of 1991 reads: S. 2. Substitution of section 38A--For section 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivic amenities are not so dedicated, but only reserved for particular or special purposes. This restriction against allotment of public parks and play grounds is further emphasised by section 3 of the Karnataka Act 18 of 1991 which reads: S.3. Validation of allotment of civic amenity sites--Notwithstanding anything contained in any law or judgment, 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislative intent. It is contended on behalf of the appellant that section 38A prohibiting sale or any other disposal of land reserved for 'public parks or play grounds', and section 16(1)(d) requiring that 15 per cent of the total area of the layout be reserved for public parks and play grounds, and an addi- tional area of not less than ten per cent of the total area of the layout for civic amenities, were enacted subsequent to the relevant orders of the Government dated 27.5.1976 and 11.6.1976 and the resolution of the BDA dated 14.7.76 re- sulting in the allotment of the site in favour of the appel- lant. Counsel says that at the material time when the Gov- ernment made these orders and the BDA acted upon them there was no restriction on the diversion of the user of land reserved for a public park or play ground to any other purpose. Significantly, the original scheme, duly sanctioned under the Act, includes a public park and the land in ques- tion has been reserved exclusively for that purpose. Al- though it is open to the BDA to alter the scheme, no altera- tion has been made in the manner contemplated by section 19(4). It is, however, true that certain steps had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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' and fresh air. This is clear from the Act itself as it originally stood. The amendments inserting sections 16(1)(d), 38A and other provisions are clarificatory of this object. The very purpose of the BDA, as a statutory authori- ty, is to promote the healthy growth and development of the 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 recretion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Tiburon, 447 US 255 (1980), the Supreme Court of the United States upheld a zoning ordinance which provided `... it is in the public interest to avoid unnecessary conversion of open space land to strictly urban uses, thereby protecting against the resultant impacts, such as ...... pollution, .... destruction of scenic beauty. disturbance of the ecology and the environment, hazards related geology, fire and flood, and other demonstrated consequences of urban sprawl'. Upholding the ordinance, the Court said: .... The State of California has determined that the development of local open-space plans will discourage the premature and unnecessary conversion of open-space land to urban uses . The specific zoning regulations at issue are exercises of the city's police power to protect the residents of Tiburon from the iII- effects of urbanization. Such governmental purposes long have been recognized as legitimate. The zoning ordinances benefit the appellants as well public by serving the city's interest in assuring careful and order- ly development of residential property with provision for open-space areas. ... See comments on this decision by Thomas J. Schoen- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... people . See also Village of Euclid v. Ambler Realty Company, 272 U.S. 365 1926. See the decision of the Andhra Pradesh High Court in T. Damodhar Rao Ors. v. The Special Officer, Municipal Corporation of Hyderabad Ors., AIR 1987 AP 17 1. The residents of the locality are the persons' intimately, vitally and adversely affected by any action of the BDA and the Government which is destructive of the environment and which deprives them of facilities reserved for the enjoyment and protection of the health of the public at large. The resi- dents of the locality, such as the writ petitioners, are naturally aggrieved by the impugned orders and they have, therefore, the necessary locus standi. In the circumstances, we are of the view that, apart from the fact that the scheme has not been validly altered by the BDA, it was not open to the Government in terms of section 65 to give a direction to the BDA to defy the very object of the Act. The impugned orders of the Government dated 27.5. 1976 and 11.6.1976 and the consequent decision of the BDA dated 14.7. 1976 are inconsistent with, and contrary to, the legislative intent to safeguard the health, safety and general welfare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecutive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bited 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, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd orders in the matter, how I should act. With warm regards, Yours sincerely. On it the Chief Minister made an endorsement is his own hand which reads as under: This area which was allowed to be kept for laying a park may be converted into C.A. Site. Another similar bit kept for the same purpose has been given away for Education Society some years back. And this remaining area is said to be not suitable for park. In consequence of the direction by the Chief Minister the Government on 27th May, 1976 converted the site from public park to a civic amenity. Copy of the order is ex- tracted below: Subject: Grant of land to Bangalore Medical Trust for construction of a Nursing Home. ORDER NO. HMA 249 MNG 76 DATED BANGA- LORE THE 27TH MAY 1976. READ; Letter No. PS 56/7-6-77 dated 21.4.1976 from the Chairman, Bangalore Development Authority, Bangalore. PREAMBLE; The Chairman, Bangalore Development Authority has requested for sanction of Government to the conversion of the low level park, next to the land allotted to the HKE Society, in Rajmahal Viias Extension as a C.A. Site and to the allotment of the said site to the Banga- lore Medical Trust for the construction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they approached the 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 23(I) of the Act no such notification under Sub-Section (2) of Section 23 was issued in respect of open space etc. therefore the site reserved for public park did not vest in the Corporation and it continued with the BDA which could deal with it. The finding was affirmed by the Division Bench as well. Its correctness was not assailed by the respondents, in this Court. As regards the second question the learned Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonably. 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 for which it is conferred under the statute. Was the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 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 supplemented by charitable medical institutions, this authority was required to ascertain whether a suitable site could be given for the hospital building of the fourth respondent. Upon scrutiny of the Rajmahal 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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 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 Sub-Section (3) of Section 15 which reads as under: (3) Notwithstanding anything in this Act or in any other law for the time being in force, the Government may, whenever it deems it necessary require the Authority to take up any development scheme or work and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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