AIR 1991 Supreme Court 1902 (From: AIR 1990 Karnataka 87)
Civil Appeal No. 2750 of 1991 (arising out of Special Leave Petition (Civil) No. 13940 of 1989), D/-19-7-1991
Dr. T.K. Thommen and R.M. Sahai, JJ.
(A) Constitution of India, Art. 226 - Public interest litigation - Locus standi - Development Scheme - Conversion of Public Park into private nursing home - Petition against by inhabitants of locality - Maintainable.
Bangalore Development Act (12 of 1976), S.19.
Public Park - Conversion into private nursing home - Petition against - Locus standi.
(Per R. M. Sahai - Dr. T.K. Thommen J. agreeing) - 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 jurisprudence is towards free movement both in nature of litigation and approach of the courts.
(B) Bangalore Development Act (12 of 1976), Ss. 19(4), 2(b) - Amenity - Private nursing home is neither amenity nor can be considered improvement over necessity like public park - Moreover conversion of Public Park into Private nursing home by State Govt. - Illegal.
Public Park - Conversion of site into private nursing home by Government - Illegal.
Development Authority - Conversion of Public Park into private nursing home - Not permissible.
Amenity - Private nursing home held not amenity.
Per: R. M. Sahai, J. (Dr. T. K. Thommen, J. - agreeing) - 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. A private nursing home could neither be considered to be an amenity nor could it be considered improvement over necessity like a public park. The exercise of power in conversion of Public Park into private nursing home therefore was contrary to the purpose for which it is conferred under the statute.
(Paras 46, 32)
The definition of Amenity in S. 2(b) indicates that the convenience or facility should have had public characteristic. Even if it is assumed that the definition of amenity being inclusive it should be given a wider meaning so as to include hospital added in clause 2(bb) as a civic amenity with effect from 1984. A private nursing home unlike a hospital run by Govt. or local authority did not satisfy that characteristic which was necessary in the absence of which it could not be held to be amenity or civic amenity. In any case a private nursing home could not be considered to be an improvement in the scheme and, therefore, the power under Section 19(4) could not have been exercised.
(Paras 48, 22)
The purpose of the Authority taking a decision of converting the site is their knowledge of local conditions and what was better for them. That is why participatory exercise is contemplated. 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 Government. In the instant case every order, namely, converting the site from public park to private nursing home and even allotment to Medical Trust for nursing home was passed by the State Government and the BDA Development Authority acting like a true subservient body obeyed faithfully by adopting and confirming the directions. It was complete abdication of power by the BDA. The Legislature entrusted the responsibility to alter and approve the Scheme to the BDA but the BDA in complete breach of faith reposed in it, preferred to take directions issued on command of the Chief Executive of the State. This resulted not only in error of law but much beyond it. 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, sanctioned and published in the Gazette could not be altered by the Government. The entire proceedings before the State Government suffered from absence of jurisdiction. Even the exercise of power was vitiated and ultra vires. Therefore the orders of the Government to convert the site reserved for public park to civic amenity and to allot it for private nursing home to Bangalore Medical Trust and the resolution of the Bangalore Development Authority in compliance of it were null, void and without jurisdiction.
(Paras 9, 53, 31, 33)
(C) Bangalore Development Act (12 of 1976), S. 19(4) - Powers of Development Authority - Conversion of Public Park into private nursing home - Non-consideration of medical facilities in the city - Misleading statement by Authority in High Court - Condemned - Per. R.M. Sahai, J.
Constitution of India, Art. 226. (Para 47)
(D) Constitution of India, Art. 226 - Administrative action - Is to be tested on anvil of rule of law and fairness and justice.
Per R. M. Sahai, J - The executive or the administrative authority must not be oblivious that in a democratic set up the people or community being sovereign the exercise of discretion must be guided by the inherent philosophy that the exerciser of discretion is accountable for his action. It is to be tested on anvil of rule of law and fairness or justice particularly if competing interests of members of society is involved.
(Para 47) (E) Bangalore Development Act (12 of 1976), S. 15(3) - Scope - Alteration of Scheme - S. 15(3) cannot be stretched to entitle Govt. to alter any scheme or convert any site.
Per - R. M. Sahai - J. - In S. 15(1) the Authority is empowered to draw up development scheme with approval of government whereas under sub-section (2) of S. 15 it is entitled to proceed on its own provided it has fund 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 Government to alter any scheme or convert any site or power specifically reserved in the Statute in the Authority. The general power of direction to take up development scheme cannot be construed as superseding specific power conferred and provided for under Section 19(4). The authority under Section 3 functions as a body. The Act does not contemplate individual action. That is participatory exercise of powers by different persons representing different interest. And rightly as it is the local persons who can properly assess the need and necessity for altering a scheme and if any proposal to convert from one use to another was an improvement for residents of locality such an exercise could not be undertaken by the Government. Absence of power apart, such exercise in fraught with danger of being activated by extraneous considerations.
(F) Bangalore Development Act (12 of 1976), S. 65 - Scope - Powers of Govt. under S. 65 are restricted - Direction by Govt. for conversion of site - Not permissible.
Per R. M. Sahai, J. - An exercise of power which is ultra vires the provisions in the Statute cannot be attempted to be resuscitated 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 provision of law are obeyed and not to empower it itself to proceed contrary to law. What is not permitted by the Act to be done by the Authority cannot be assumed to be done by State Government to render it legal. An illegality cannot be cured only because it was undertaken by the Government. The Section authorises the Government to issue direction 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 are law and rule and not the height of the person exercising the power.
Per Dr. T. K. Thommen, J. - Section 65 empowers the Government to give such directions to the Bangalore Development Authority as are, in its opinion, necessary or expedient for carrying out the purposes of the Act. It is the duty of the BDA, Bangalore Development Authority, to comply with such directions. The BDA is bound by all directions of the Government. The power of the Government under Section 65 is restricted. The object of the directions must be to carry out the object of the Act and not contrary to it. Only such directions as are reasonably necessary or expedient for carrying out the object of the enactment are contemplated by Section 65. If a direction were to be issued by the Government to lease out to private parties areas reserved in the scheme for public parks and playgrounds, 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.