JUDGMENT

THOMMEN, J.:— Leave granted.

2. I have had the advantage of reading in draft the judgment of my learned Brother Sahai, J. and I am in complete agreement with what he has stated. It is in support of his reasoning and conclusion that I add the following words.

3. A site near the Sankeys Tank in Rajmahal Vilas Extension in the City of Bangalore was reserved as an open space in an improvement scheme adopted under the City. of Bangalore Improvement Act, 1945. This Act was repealed by Section 76 of the Bangalore Development Authority Act, 1976 (Karnataka Act No. 12 of 1976) (hereinafter referred to as the "Act") which received the assent of the Governor on 2-3-1976 and is deemed to have come into force on 20-12-1975. By a notification issued under Section 3 of the Act, the Government constituted the Bangalore, Development Authority (the "BDA"), thereby attracting Section 76 which, so far as it is material, reads:-

"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the Bangalore Development Authority, the City of Bangalore Improvement Act, 1945 (Mysore Act 5 of 1945) shall stand repealed.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or taken under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act:

Provided also that any reference in any enactment or in any instrument to any provision of the repealed Act shall uilless a different intention appears be construed as a reference to the corresponding provision of this Act.

(4)..........................."

(Emphasis supplied)

Accordingly, the scheme prepared under the repealed enactment is deemed to have been prepared and duly sanctioned by the Government in terms of the Act for the development of Rajmahal Vilas Extension.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.

4. However pursuant to the orders of the State Government dated 27-5-1976 and 11-6-1976 and by its resolution dated 14-7-1976, 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 playground. 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 playgrounds and parks for the general public. The writ petitioners, being aggrieved as members of the general public and residents of the locality, have challenged the diversion of the user and allotment of the site to private persons for construction of a hospital.

5. 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 respondents (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 permissible 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