K. S. PUTTASWAMY, J. ( 1 ) LAND bearing Sy. No. 308 measuring an extent of 1 acre 6 guntas abutting famous public Hindu temple called "kapileswara Temple" popularly called as 'kapileswara Tank' of Belgaum city, the head quarters of the same District, which was formerly part of the erstwhile State of Bombay, but became part of the, new state of Mysore now called as Karnataka was Government land. ( 2 ) AS on 1-11-56 in Belgaum City, there was a Municipality or a Municipal Borough governed by the Bom. Municipal Boroughs Act, 1925 (Bombay act, XVIII of 1925 ). But, on the enactment of the uniform Kar Municipalities Act, 1964 (Kar. Act 22 of 1964) (hereinafter referred to as the 1964 Act) that came into force 1. 4. 65, the said municipal Borough became a City municipality governed by that Act till 10-6-77 from which day, the same has been converted into a Municipal corporation (hereinafter referred to to as the Corporation) (vide Notin. No. HMA 172 MNY 77 dt 9. 6. 77 issued by Government) governed by the uniform Karnataka Municipal Corporations Act, 1978 (Karnataka Act no. 14 of 1977) (hereinafter referred, to as the 1976 Act) ( 3 ) ON a recommendation made by the divisional Commissioner, Belgaum, the government of Karnataka in its order no. RD. 62 BM 67. dt. 23. 2. 67 (Annexure-D) transferred the aforesaid land to the Belgaum Municipality to be used for purpose of a 'public garden' and not for any other purpose. In furtherance of the aforesaid order of Government, the assistant Commissioner Belgaum Sub-Dn,. Belgaum (hereinafter referred to as the AC) by his order No. LND sr. 549 dated 21. 3. 67 (Annexure-E) made an order purporting to be under s. 69 of the Karnataka Land Revenue act, 1964 formally transferring the said land to the Municipality imposing certain terms and conditions stipulated in the said order. Unfortunately, the municipality which appears to be under an Administrator from about 1964 or so, did not take steps to establish a 'public garden on the land and has allowed the same to be used as a vacant land or misused on some occasions. ( 4 ) ON or about 9. 9. 81, respondent no. Unfortunately, the municipality which appears to be under an Administrator from about 1964 or so, did not take steps to establish a 'public garden on the land and has allowed the same to be used as a vacant land or misused on some occasions. ( 4 ) ON or about 9. 9. 81, respondent no. 3 a professional Kannada Dramatist performing Kannada dramas under the trade name called' Karibasavaraj drama Company applied to the commissioner of the Corporation for grant of an extent of land measuring 150' x 100' on the aforesaid land for temporary construction of a drama theatre for enacting Kannada dramas, for a period of one year from 15-10-81 14-10-82 on payment of such rent as may be fixed by him. Very surprisingly the said original application made by respondent No. 3, a copy of the order issued by the Commissioner on that application and the original lease agreement executed by the parties thereto or even authenticated copies of them are not avilable in the case file of the Corporation produced before Court. Learned counsel for the corporation stated that these documents have been produced by his client in O. S. No. 117 of 1982 filed by petitioner No. 2 and several others in the Court of the Prl. Munsiff, belgaum, the correctness of which i have no reason to disbelieve. But, respondent No. 3 has produced all those copies, the correctness of which is not also disputed by all the other parties. ( 5 ) ALMOST at snail speed, the application made by respondent No. 3 was processed and the Commissioner by his order No. RDMAR. SR. 386/81-82 dt. 12-2. 82 granted an extent of 90- 'x 120' of land on lease for a period of one year from the date of handing over its posession to her on a rent of Rs. 225 per month. The said order made by the Commissioner which is material and challenged before this Court, reads thus:"no. RDMAR SR. 386|81-82 office of the Corporation of the City of Belgaum, dt. 12-2-82. To smt. Chindodi Leela, proprietor K. B. R. Drama Co. , khadebazar Belgaum. Madam, subject: Allotment of an open site measuring 90' x. 120' in CTS no. 3/4 or R. S. No. 308 in kapueshwar Talac - regarding. With reference to your application dt, 9. 9. RDMAR SR. 386|81-82 office of the Corporation of the City of Belgaum, dt. 12-2-82. To smt. Chindodi Leela, proprietor K. B. R. Drama Co. , khadebazar Belgaum. Madam, subject: Allotment of an open site measuring 90' x. 120' in CTS no. 3/4 or R. S. No. 308 in kapueshwar Talac - regarding. With reference to your application dt, 9. 9. 81, I am to inform you that an open site measuring 90 x 120 in cts No. 3|4 or No. 308 in Kapileshwar talac leased out to you for locating a Drama Theatre for a period of one year from the date of handing over the possession on temporary basis at a monthly rental of Rs. 225, subject to the usual terms and conditions under S. 176 of the K. M. C. Act, 1976 and with a specific condition that you should not erect any permanent structure on the site. Further, you are requested to pay 3 months advance of rent of Rs. 675 as a deposit and execute an agreement bond on a general stamp paper to favour of the Commissioner, Corporation of City of Belgaum immediately. Yours Faithfully, commissioner, Corporation of the city, Belgaum"in pursuance of the said order, a lease deed was executed between the corporation and respondent No. 3 on 12-2-82 incorporating the terms and conditions of the lease. ( 6 ) ON the basis of the aforesaid order and the lease deed entered into between her and the Corporation respondent No 13 started construction of a temporary drama theatre on the area of land leased to her' At that stage petitioner No. 2 and several others filed O. S. 117 of 1962 in the court of the Munsiff Belgaum impleading the Deputy " Commissioner of the district (hereinafter referred to as the DC), the Commissioner, respondent No. 3 and several others, with whom we are not concerned, for a permanent injunction restraining respondent No. 3 from proceeding with the construction of the theatre and of enacting the dramas therein with an application for temporary injunction on like terms which was exparte granted. On an application made by the Corporation and respondent No. 3, the learned Munsiff by his order dated 19. 3. 82 (Annexure R1) vacated the said temporary injunction. Apart from this petitioner no. On an application made by the Corporation and respondent No. 3, the learned Munsiff by his order dated 19. 3. 82 (Annexure R1) vacated the said temporary injunction. Apart from this petitioner no. 2 and several others have also commenced proceedings before the dc for cancellation of the lease and resumption of land which is still pending disposal before him. ( 7 ) ON 23-3-82 the two petitioners, the first of whom is not a party before the civil Court, moved this Court under Art. 226 of the Constitution for qaushing the order dated 12-2-82 of the Commissioner and for temporary injunction restraining respondent no. 3 from proceeding with the construction of the theatre. On 25. 3. 82 this Court while issuing rule nisi, granted an ex-parte temporary injunction. On an application made by respondent No. 3, this Court by its order dt. 7-4-82 modified the earlier interim order and permitted her to complete the temporary construction and perform the dramas therein for a period of three months from that date, the correctness of which was challenged by the petitioners in w. A. No. 671 of 1982. On 23. 4 82 the said appeal was disposed of by this Court noticing an undertaking filed by respondent No. 3 in that appeal. ( 8 ) THE petitioners who are residents and rate payers of Belgaum city have urged that the grant made to respondent No. 3, defeats the object of grant made by Government and is prejudicial to public interest. Secondly, the petitioners have urged that the lease granted to respondent no. 3 in secrecy and without a public auction was violative of the provisions of the Act and illegal. ( 9 ) IN justification of their action, respondents 1 and 2, viz. the Corporation and its Administrator have filed their return. These respondents have urged that the lease granted by the corporation is authorised by S. 176 of the 1976 Act and subserves the purpose of grant made by Government. ( 10 ) RESPONDENT No. 3 has also filed a separate return naturally supporting respondents 1 and 2. Respondent No. 3 has urged that the petitioners, being members of a political organisation called 'maharastra Eki karna Samithi (hereinafter referred to as MES) opposed to Kannada language and its development, have -moved this Court with ulterior motives and not with the genuine public interest of safegurding muncipal property. Respondent No. 3 has urged that the petitioners, being members of a political organisation called 'maharastra Eki karna Samithi (hereinafter referred to as MES) opposed to Kannada language and its development, have -moved this Court with ulterior motives and not with the genuine public interest of safegurding muncipal property. On this premise respondent no. 3 has urged that the petitioners have no locus standi, and even if they have, having, regard to all the facts and circumstances, this is a fit case in which this Court should decline to exercise its extra-ordinary jurisdiction in their favour. ( 11 ) IN their reply, the petitioners have denied the allegation of respondent No. 3 that they are members of mes. On the other hand they have asserted that they are members of congress (I) which is opposed to MES and, they are espousing a genuine public cause. ( 12 ) ON the pleadings and the contentions urged before me, the following points arise for dietermination : (I) Whether the petitioners have locus standi to challenge the lease granted to respondent No. 3? (II) Whether the conduct of the petitioners disentitles them for relief under Art. 226 of the Constitution? (III) What is the purpose, nature and effect of grant of land made by government to the Muncipality that has become a Muncipal Corporation? (IV) Whether the land granted by government can be used for a purpose other than the purpose for which government made the grant ? (V) Whether the lease granted to respondent No. 3 is for a purpose for which Government had granted the land or for a different purpose? If it is for a different purpose, is the lease valid? (VI) Whether the Commissionner was competent to grant a lease of land, to respondent No. 3? If he was competent, was it legal for him to grant the same by private negotiation only? i will examine them seriatim. POINT NO. (I) ( 13 ) SRI U. L. Narayana Rao, learned counsel for respondent No. 3 has contended that the petitioners who are members of MES, opposed to Kannada language and its development, have no locus standi to challenge the grant made to his client. In support of his contention Sri Rao strongly relied on the rulings of the Supreme Court in municipal Council, Ratlam v. . In support of his contention Sri Rao strongly relied on the rulings of the Supreme Court in municipal Council, Ratlam v. . Vardhichand (1) and S. P. Gupta v. President of India (2) popularly called as judge's case. ( 14 ) SRI K. I. Bhatta, learned counsel for the petitioners, has contended that that his clients, as residents and rate payers, had locus standi to challenge the grant made to respondent No. 3. In support of his contention Sri Bhatta strongly relied on the rulings of this court in Rama Jois v. State of Karnataka (3); Holy Saint Education Society t. P. Venkataramana (4) and B. Bosalingappa kyathanavar v. Chairman, standing Committee of Hubli-Dharwar municipal Corporation (5) and the very ratio in the Judge's case. ( 15 ) BOTH the petitioners are residents and rate payers of the Corporation, that is not rightly disputed, by respondent No. 8, is established by the tax receipts produced by them before this court. ( 16 ) WHEN a Municipal Corporation or a Municipality grants any land owned by it to any other person, any resident or a rate payer of that City or town as the case may be, can challenge the same before this Court under Art. 228 of the Constitution, In all such cases, this Court has consistently taken the view that the residents and rate payers have locus standi to challenge the grant of a lease as the same affects their interests. ( 17 ) IN Rama Jois's case a, Division bench of this Court has ruled that the residents and rate payers of a Municipality have locus standi to challenge a lease granted by a Municipality to another person. In Holy Saint Education society's case' a grantee in that case, though urged in its return, did not seek to pursue a similar contention, this court has proceeded to examine that the residents and rate payers of the area have locus standi to challenge a lease in my view, the true ratio in the judge's case that has elaborately dealt with the concept of public interest litigation', far from supporting the case of "respondent No. 3, supports the petitioners to hold that , they have locus standi to challenge the grant made to respondent No. 3. For these reasons, I see no merit in this contention of Sri rao and I reject the same. POINT NO. For these reasons, I see no merit in this contention of Sri rao and I reject the same. POINT NO. (II) ( 18 ) SRI Rao urged that the conduct of the petitioners that have already approached a civil Court and the DC for similar reliefs, disentitles them for relief under Art. 228 of the Constitution. ( 19 ) SRI Bhatta urged that the suit or the other legal proceeding instituted, by one of the petitioners before the DC does not disentitle his clients to challenge the grant. ( 20 ) BEFORE the civil Court as also before the DC, petitioner No. 2 is a party is not disputed. In O. S. No 11? of 1982 the plantiffs have not challenged the lease granted to respondent No. 3. Whether the DC before whom a proceeding has been instituted, is really competent to decide the validity of the lease granted is extremely doubtful. Assuming, in those proceedings, one of the petitioners, has sought for the very reliefs, even then the same does not really touch on the jurisdiction of this court to examine the validity of the lease and annul the same, if necessary circumstaces exist. By filing a doubtful suit or instituting another legal proceeding, to which one of the petitioners only is a party, the petitioners have not become disentitled to challenge that grant before this Court. ( 21 ) EVEN the fact that the petitioners are vigorously pursuing or challenging the grant before more than one Court or authority, does not necessarily lead to the conclusion that they are motivated by ulteuor considerations or vindictiveness against respondent no. 3. After all, it is very easy for a beneficiary to level such a charge against any person that approaches a court espousing a public cause ( 22 ) ON an examination of all the facts and circumstances, I am satisfied that the petitioners are acting bonafide for a genuine public cause and are not acting for any personal profit or gain or out of political considerations and their conduct does not desntitle them for relief under Art. 226 of the Constitution. I, therefore reject this contention of respondent No 3 point NO (III) ( 23 ) SRI Bhutta urged that the grant made by Government was absolute and the Corporation had become rs absolute owner and the conditions imposed by the AC had to be ignored ( 24 ) LEARNED counsel for the respondents urged that the conditions imposed oy the AC were valid Sri Rao also urged that Government retained its ownership rights and it was open to it to Same the land. ( 25 ) THE order made by Government on 23-2-1967 reads thus :"proceedings of the Government of mysore Order No. RD 6 LBM 67 bangalore, dated the 23-2-1967. "read: letter No. RB/lnd-SR-648 dated 12-42-1p66 of the Divisional commissioner, Belgaum Division, belgaum. Preamble : the Pivisional Commissioner, belgaum Division has stated that the administrator, City Municipal Council, belgaum has requested to transfer the land in Sy. No. 308 of Belgaum for garden purposes. The Divisional Commissioner has requested sanction of Government to transfer the land in Sy. No. 308 of Belgaum to the Belgaum Municipality for purposes of public garden free of cost. ORDER: sanction is accorded to transfer of land in Sy. No. 308 (Kapileshwar Tank) of Belgaum, free of cost in favour of the Belgaum Municipality, for purposes of a public garden, subject to the condition that this land should not be used for any other purpose other than that for which it is granted, without specific sanction of government" by order and in the name of the Governor of Mysore. Sd/ (N. B, Siddiqui) under Secy, to Government, revenue Department. "by this order, Government has transferred its ownership apd possession to the Municipality without imposing any conditions on either of them. The transfer is absolute and Government has not retained any control over ownership or possession. The condition, imposed by Government only relates to the user of land and not to ownership or its resumption on any ground. On the plain and unambigous terms of the older of Government, the Municipality/municipal Corporation had become the absolute owner and possessor of the land and it is not open to government to resume the same on, the ground that its ownership or title had not been transferred. On the plain and unambigous terms of the older of Government, the Municipality/municipal Corporation had become the absolute owner and possessor of the land and it is not open to government to resume the same on, the ground that its ownership or title had not been transferred. ( 26 ) AS on the date of transfer, there was a Municipality in the City regulated by the 1964 Act and, therefore, the transfer should be adjudged by that act only. ( 27 ) S. 81 of Chapter IV of the 1964 act deals with municipal properties. S. 81 (1) generally deals with the acquisition of movable and immovable properties by a municipality within or without the limits of the Municipality. S. 81 (2) of the Act declares the proparties of the description as properties of a Municipality, which holds them as a trustee under the Act and one of them is lands and buildings Transferred by government by gift or otherwise for local public purpose. ( 28 ) WITHOUT any doubt the transfer of the land lord Sy No. 303 by government to the Municipality for a local public purpose is referable to S. 81 (2) (c) of the Act But, on the terms of the transfer, Government without retaining any rights has transferred the same to the Municipality, and, therefore the promise to S. 81 (2) of the 1964 Act has no application. From this it follows that the Municipality acquired absolute ownership rights over the land to be used for the purpose earmarked by government. ( 29 ) LET me now turn to the order made by the AC on 21-3-1967 and its effect. ( 30 ) THE order made by the- \c on 21-3-1967 reads thus :"no. LND. SR-549. Office of the Assistant commissioner, B. S. D. , belgaurn, dt: 21-3-1967. Read: 1) The correspondence ending with the endorsement No RB WRF 411 dated 10-3-1967 from the Deputy commissioner, Belgaum. 2. Govt. order No RD 6 LRM 67 dt. 23-2-1967. 3) Section 69 of the M. L. R. Act, 1964. ORDER the land Sy. No. 308 (Kapileshwar tank) measuring 1 acre 6 guntas of belgaum is Governnment land. The administrator, City Municipal Council, belgaum, has ,requested to tranfer the land Sy. 2. Govt. order No RD 6 LRM 67 dt. 23-2-1967. 3) Section 69 of the M. L. R. Act, 1964. ORDER the land Sy. No. 308 (Kapileshwar tank) measuring 1 acre 6 guntas of belgaum is Governnment land. The administrator, City Municipal Council, belgaum, has ,requested to tranfer the land Sy. No. 308 of Belgaum for the purpose of public garden free of rost in favour of the City Municipal Council, belgaum, Government under their order No. RD 6 LBM 67 dated 23-2-1967 have accorded necessary sanction to transfer the land in favour of the Municipality free of cost lor the said purpose subject to the condition that the land, should not be used for any purpose other than that for which it is granted without the specific sanction ox government. The papers of the case have been received from the Deputy Commissioner, Belgaum, for taking further action. In the circumstances, the Government waste land Sy. No. 308. of Belgaum, measuring 1 acre aaid 6 guntas is hereby granted to the Belgaum City Municipal Council, free of cost for the purpose of public garden subject to the following conditions : 1) That the Municipality shall use the land for the purpose of recreation ground and for no other purpose without obtaining specific sanction of government. 2) That the Municipality shall develop the land as recreation ground within a period of two years from the date of taking possession of the land. 3) That the said recreation ground shall be kept open to the public without distinction of caste and creed 4) That the Municipality should maintain the recreation ground in an efficient condition. 5) Th'at the Deputy Commissioner, belgaum, may resume the land to government along with such structures etc. as may have been built on it, if the Municipality commits breach of any of these conditions. In case such a resumption is made, the Municipality will not be entitled to any compensation whatsoever. 6) That the Municipality shall execute an agreement agreeing to these conditions within one month from the date of receipt of this order before the tahshildar, Belgaum. Sd/- asst. Commissioner, P. S. D. , belgaum. "the A C. states that he has made this order under S. 69 of the Karnataka land Revenue Act, though that provision does not appear to provide for the same. Sd/- asst. Commissioner, P. S. D. , belgaum. "the A C. states that he has made this order under S. 69 of the Karnataka land Revenue Act, though that provision does not appear to provide for the same. As I apprehend, the AC made this order only for purposes of revenue record and to hand over possession to the Municipality which was done thereafter. ( 31 ) LET me assume that there was necessity for the order dt. 21-3-1967 and the same has been legally done. But, still it was not open to the AC either to add or restrict the purpose and conditions on which Government had made the grant to the Municipality any expansion or restriction of the purpose imposed by the Act, has mecessarily to be ignored and the purpose ascertained only from the terms ot the order of Government alone and no other. In this view, the term 'recreation' employed by the AC has to be ignored and has to be read as subservient to the main purpose for which government has made its grant. ( 32 ) IN its order dated 23-2-1967 government in clear and unambiguous terms directed the Municipality to use the same for a 'public garden' and no other purpose. On the terms of the said order as also under the 1964 Act, the Municipality or the Corporation is required to use the land for a public garden and no other purpose. ( 33 ) ON the above discussion, I hold that the land granted by Government is for a public garden, that the Corporotion is its absolute owner and the same is not resumable by Government point NO. (IV) ( 34 ) SRI Bhatta urged that the land granted for a 'public garden' can only be used as a 'public garden' and cannot be used for any other purpose. In sup port of his contention, Sri Bhatta strongly relied on the Division Bench ruling of this Court in Holy Saint education Society's case that affirmed the decinion rendered by me in p. Venkatawmana's case ( 35 ) LEARNED counsel for the respondents urged that the lease of land to construct and run a drama theatre, would fall within the ambit of the term 'recreation' and was not violative of the grant made by Government. ( 36 ) ON and from the day the Municipality was converted into a Corporation, it is governed by the 1976 Act. A comparison of the material provisions of 1976 Act and the 1964 Act on the subject reveal that they are more or less analogous or similar. ( 37 ) THE order dt. 23-2-1967 as also the order dt. 21-3-1967 made by the ac states that the land is granted for maintaining a public garden. But, looking at the real background and substance, it is manifest that term has been used by Government for a 'public' park'. The word 'garden' has been loosely used by Government for the 'term 'park' that is more apt and legal without any doubt, Government granted the land to the Municipality to utilise the same for public garden or a public park. Hence, it is necessary to hold that the direction of Government was to use the land as a public garden or a public park. ( 38 ) S. 174 of the 1976 Act directs a corporation to hold public parks, play grounds and open space reserved for ventilation as a trustee for the benefit of the public. As a trustee, the Corporation cannot use these classes of lands except for the purpose for which it has been granted by the donor or reserved under the Act. As a trustee, the Corporation cannot use these classes of lands except for the purpose for which it has been granted by the donor or reserved under the Act. ( 39 ) IN P. Venkataramana's case this Court was examining the grant of a play ground to an institution called holy Saint Education Society for a period of 50 years by the Bangalore city Corporation, which was then governed by the Bangalore City municipal Corporation Act of 1949, the provisions of which are analogous to 1976 Act, by the residents of the area on an examination of the provisions of that Act, and upholding the challenge of the residents, I expressed thus :"the Corporation holds and manages the properties as a trustee of the properties and ean utilise them or deal with them by it as their trustee for the purpose of the Act and cannot utilise them for any other purpose, however, laudable the object may be"on appeal by the Society, a Division bench of this Court, affirming the order made by me, but on different grounds, expressed thus :"we agree with the view taken by the learned single Judge that the corporation which held the site as a trustee, could not lease it for a purpose different from the one for. which it had been reserved. "s. 178 of the, 1976 Act, the scope of which did not arise for determination in P. Venkataramana's case also leads to the same conclusion. ( 40 ) IN my view, the above construction and enunciation equally applies in interpreting S. 174 of the, 1976 Act. ( 41 ) ASSUMING that the 1976 Act is silent and does not provide for the above position, in such a situation also, the position appears to be the same. ( 42 ) ON the use of a land reserved for a different purpose 'the Law of municipal Corporations in British India' (II Ed) by P. Doraiswami Aiyangar. states thus:"a local authority cannot legally make any use of lands belonging to them, which is inccnsistert with the rights of the person from whom they acquired them, or which amount's to a breach of trust; any attempt to do so will be ultra vires and may be restrained by injunction. Where land is acquired, for instance, for sewage disposal works, it cannot be used for a small pox hospital. Where land is acquired, for instance, for sewage disposal works, it cannot be used for a small pox hospital. " on the same point, E. C. Yokley in his treatise on 'municipal Corporations' at para 398 (page 353) noticing a large number of rulings of various American state Supreme Courts, observes thus: "it is well settled that where land is given to a municipality for a specific purpose, it must be used solely for that purpose. " ( 43 ) ON the construction of the provisions of the 1976 Act and the application of the above principles, it is not open to the Corporation to use the land except as a public garden or a public park. ( 44 ) SRI Bhatta has urged that the lease of land to construct and run a drama theatre on a commercial basis was not for the purpose the land was reserved by Government and illegal. ( 45 ) LEARNED Counsel for the respondents have urged that the lease of land to respondent No. 3 for recreational purposes, does not violate the terms of grant made by Government, and the act was legal. ( 46 ) EARLIER, I have found that the land granted by Government for a public garden or public park, can be used only for that and no other purpose, the order of the AC to the extent it added or restricted the purpose of grant had to be ignored and that a public garden and public park are one and the same. ( 47 ) IN ascertaining the meaning of the terms 'public garden' or 'publicpark', the dictionary meanings of those terms will not be of much use. But, a satisfactory definition of the term 'park' is set out bv Yokley in his treatise on municipal Corporations and the same reads thus :"in most instances the courts have stated that a park is a pleasure ground that has been designated for the recreation of the public in the promotion of health and enjoyment. The Supreme Court of Florida has pointed out that in times past a park was understood to be an open square or plaza, usually containing shade trees and seats, but that in, this country, a park is defined as a piece of ground acquired by a city or town, for ornament ; and as a place for the resort of the public for recreation and amusement. In an early Colorado case, Mc Intyre v. Board Of com'rs Of El Paso County, 15 Colo app. 78, 61 p. 237, the Court expressed the following view respecting the modern concept of a park : "the term 'park,' in its ordinary and usual significance, imparts a plot of ground in a city or town set apart for ornament, - a place which the residents of the municipality may frequent for pleasure and exercise or amusement. It is besides, conducive to health; furnishing, to the citizens of crowded cities a place where they may breathe the pure air, untainted by smoke, and noxious gases. "a public park, in the modern conception, has been defined as a public pleasure ground for agencies of aesthetic enjoyment as well as outdoor activities. The word 'park', on a plot of land dedicated to the public, signifies a" place open to everyone, and it is said to convey no idea of restriction to any part of the, public. The supreme Court of Illinois has stated that a park is a piece of ground set apart for ornament and to afford the benefits which come from fresh air, light, exercise and amusement. The foregoing definitions appear to reasonably define the general purpose and functions of public parks, on the use of the, parks the exposition by the same learned author is worth noticing and the same reads thus:"in the acquisition and maintenance of parks, a municipality functions in a governmental capacity, and holds the property in trust for the convenience of the public in the pursuit of healthful and recreational activities. A Municipality does not hold a park as a private owner for its own particular use, but for the benefit of all of those members of the public, who might on occasions enjoy the park. Parks come into existence, and are' maintained and developed, not just for the benefit of the residents of the municipality where the parks are located, but also for the pleasure and recreation of the public at large. " ( 48 ) A mojiern-public park can be used for recreational purposes can hardly be doubted. On this topic also, the exposition in the same treatise is worth reproducing, which reads :"in the modern concept of a public park, provision for wholesome recreation has its well defined place. " ( 48 ) A mojiern-public park can be used for recreational purposes can hardly be doubted. On this topic also, the exposition in the same treatise is worth reproducing, which reads :"in the modern concept of a public park, provision for wholesome recreation has its well defined place. In this section, therefore, will be detailed some of the rules regarding the extent to which parks may be utilized for purposes, of recreation. In a California decision, the court, had this ' to say respecting public recreation: "the cases are abundant and uniform both in this and other states holding that the devotion of a reasonble portion of public park to tennis Courts, croquet grounds, and children's playgrounds, with such suitable appliances for these forms of public amusement and recreation, comes strictly within the proper and legitimate uses for which public parks are created. "in the case of Mc Louthlin v. City and County Of Denver (Colo.), 280 p. (2d) 1103, the Supreme Court of colorado stated:"in this jurisdiction we have adonted the modern concept for a dedicated public park. That while an entire area of a park may not be converted to play ground or recreational uses: nevertheless, when, considering the size and location of the park, its environments, deteity of adjacent population and then public needs, it is proper and legitimate that a reasonable portion of a park area be set aside and used for playground and recreational purposes. These uses would include tennis courts, playground and dancing facilities skating, a swimming pool and bathhouse, horseshoe pitching walking, horseback riding, athletic sports and other outdoor exercises, as may be needed and! if conditions are conducive therefor, golfing and baseball with the necessary equipment therefor, and with car parking facilities for the use and convenience of patrons and the public : provided always that a substantial portion of the park area remains in grass, trees, shrubs and flowers with seats and tables for picnicing, for the use by, and enjoyment of, the public. The Denver charter grants the Manager of improvements and Parks broad discretion in determining the uses to which a particular park area may be put. "buildings of various types designed to serve the recreational needs as well as. the cultural needs of the public are proper in municipal parks. In the case of Moore v. Valley Garden, center 66 Ariz. The Denver charter grants the Manager of improvements and Parks broad discretion in determining the uses to which a particular park area may be put. "buildings of various types designed to serve the recreational needs as well as. the cultural needs of the public are proper in municipal parks. In the case of Moore v. Valley Garden, center 66 Ariz. 209, 185 p. (2d) 998, a lease to a nonprofit corporation for horticultural gardens was held proper as a lease for recreational purposes. In Slavich v. Hamilton, 201 Cal. 299, 257 p. 60, a veteran's memorial hall was held proper in a public park. In Aquamsi Land Co. v. Cope Girardeau, 346 Mo. 524, 142 s. W. (2d) 332, a recreational building, community center and fair grounds, including a race track and an athletic field, were held proper in a public park. It has been held that municipal play grounds are public institutions open to enjoyment by all the people, from which the city receives no special advantage. The same may be said of a municipal golf course. The use of a golf course may be regulated to secure the enjoyment of the public at large. Municipal golf courses are said to be created for recreational purpose, and are supported by public funds. Like parks and playgrounds they are for the enjoyment of the public at large. "in the case" of Alien v. Manchester (N. H), 111 A (2d ). 817, the Supreme Court of new Hampshire held that a municipal regulation prohibiting women and children from playing golf on a municipal course during certain hours on week ends and holidays was not arbitrary, unreasonable or unlawful and that the classification was not invalid on constitutional grounds. In this case the court took the position that the regulation was designed to primarily protect the playing public as a whole in that women played slower and tended to crowd up the course. The court approved the principle of women being classified with children, not because, of their sex, but because of the manner of playing golf, thought to be characteristic of them as a group. The Supreme Court of Colorado has held that the installation of a swimming pool and bathhouse in a public park, for the use of the; public, is a proper park purpose. The Supreme Court of Colorado has held that the installation of a swimming pool and bathhouse in a public park, for the use of the; public, is a proper park purpose. The supreme Court of West Virginia, in approving a swimming pool in a public park, has stated:"a public park is ground! used for public recreation. Since the public has various recreational preferences, the use of a public park may also vary. Swimming is a popular and healthful recreation. So we are of opinion that a public swimming pool is within the definition of a public park. "it has been held that swimming pools, parking lots or bathhouses are not nuisances per se, where located in public parks. In the case of Bangor v. Merrill trust Co. (Me.), 99 A. (2d) 298 the supreme Judicial court of Maine held the operation of night horse race in a park fell within the intent and meaning of a testator's gift 01' land to a municipality, where, in his will, he ordered the trustee to convey to a Municipality a tract of land for park purposes including, in the discretion of the municipality semipublic purposes such as fairs and circuses. Auditoriums have been held to be proper recreational purposes and thus a proper part of a park system. Tennis courts have been held to be a proper use of public park property. A construction of an auditorium or an open air theatre for enacting dramas in a public garden or park by the Municipal Corporation cannot and may not defeat the purpose of a park. But, the same will not be true whan the corporation leases the land to another person as a commercial proposition ( 49 ) THE lessee encloses the area leased to her, restricts the entry of public to only those that buy tickets and intends to make profits by enacting dramas and those dramas serve the recreational needs of the ticket holders cannot be doubted. But, still such a lease cannot be compared to the corporation constructing an open air theatre or an auditorium and using the same for enacting dramas and other cultural activities and the same has only to be treated as granted for a commercial purpose and not recreational purpose. But, still such a lease cannot be compared to the corporation constructing an open air theatre or an auditorium and using the same for enacting dramas and other cultural activities and the same has only to be treated as granted for a commercial purpose and not recreational purpose. From this, it follows, that the lease of land to respondent No. 3 does not fall within the meaning of the term recreational purpose of a public garden or public park reserved by government. ( 50 ) ON the above discussion, I hold that the lease granted by the corporation was not for the purpose for which Government granted, the land but was for an entirely different purpose and is, therefore, illegal. ( 51 ) SRI Bhatta urged that the Commissioner should have disposed of the lease hold rights by public auction in accordance with Rule 39 of the Karnataka municipalities (Guidance of Officers, Grant of Copies and Miscellaneous provisions) Rules, 1966 (hereinafter referred to as the Rules ). In support of his contention Sri Bhatta strongly relied o,n the rufng of this Court in jaichand v. Town Municipality, robeftsonpet (6) ( 52 ) LEARNED counsel for the respondents urged that the manner and method of disposal of lease hole! rights is no longer regulated by the Rules but is exclusively by the 197ti Act only ( 53 ) FROM 10-6-1977 the Municipality has been converted into a Municipal corporation and is governed by the 1976 Act and not by the 1964 act. S. 503 (2) of the 1976 Act ex-abundanti cautela declares that on and from the day the Municipality is converted into a Municipal C'oi poration, the provisions of the 1984 Act will not be applicable to such a Corporation. ( 54 ) PROVISO to sub-sec. (2) of S. 503 of the 1976 Act, as in similar enactments, provides for the continuace of the appointments, notifications, rules and bye-laws made under the previous Act. But, that proviso providing for the continuance of the Rules cannot be read as restricting the express power conferred by S. 176 of the 1^76 Act on the Commissioner. This section that deals with the disposal of the Municiple pal properties and interest therein exclusively confers the power to dispose of lease hold rights of immovable properties of the Corporation for a period of 12 months, on the Commissioner. This section that deals with the disposal of the Municiple pal properties and interest therein exclusively confers the power to dispose of lease hold rights of immovable properties of the Corporation for a period of 12 months, on the Commissioner. ( 55 ) THE method of disposal of lease hold rights or other properties is no longer regulated by Rule 39 of the rules. The method of disposal is regulated only by the 1976 Act. In this view, the principles enunciated by this Court in Jaichand's case has no application. ( 56 ) ON the above analysis, it follows that the lease granted by the Commissioner to respondent No. 3 was well within his power . On this conclusion, it is not very necessary to examine the second aspect of point No. VI and I leave open the same except to draw ihe attention of the Commissioner to the principles enunciated by the Supreme Court to Romano Dayaram shetty v. The International Airport authority of India. ( 57 ) ON the above discussion and the findings recorded by me on points (I) to (V) it follows that the lease granted to respondent No. 3 is liable to be interfered with. But, in pursuance of the earlier interim order made, respondent No. 3 has been permitted to put up a temporary construction, the construction of which was completed only on 31-7-1982 and that she has commenced the enactment of dramas in that theatre only from 1-8-1982. An immediate dispossession of respondent No. 3 and stoppage of dramas would undoubtedly cause streat injury and loss to respondent no. 3 who has naturally invested huge amounts over the same and will also cause considerable inconvenience to the public of the area. ( 58 ) IN view of the memo filed by respondent No. 3 in WA. No. 671 of 1982,, it would not have been possible for me to grant any time. But, the petitioners taking a very liberal, generous and correct view of the matter, have filed a memo before this Court on 6-8-1982 to the effect that they have no objection for respondent No. 3 to continue to use the theatre and enact dramas till 31-12-1982. But, the petitioners taking a very liberal, generous and correct view of the matter, have filed a memo before this Court on 6-8-1982 to the effect that they have no objection for respondent No. 3 to continue to use the theatre and enact dramas till 31-12-1982. In this view, notwithstanding my earlier conclusions, it is proper for this Court to permit respondent No. 3 to be in possession of the lease area, on payment of rents stipulated till 31-12-1882 as a very special case. ( 59 ) IN the light of my above discussion, I make the following order and directions. (a) I declare that transfer of land bearing Sy. No. 308 of Belgaum city by government to the Belgaum Municipality, converted into a Municipal Corporation from 10-6-1977 was absolute and the latter has become its absolute owner and the said land is not resumable by Government ; (b) I declare that respondent No. 1 shall maintain and use the land bearing sy. No. 308 of Belgaum city as a public garden/park and shall not use the same for any other purpose and shall not dispose of the same to any other person; (c) I quash the order No. RDMAR. Sr. 386/81-82 dated 12-2-1982 of the commissioner, Corporation of the city of Belgaum. (d) I declare that the lease deed dated 12-2-1982 executed by respondent No. 3 in favour of respondent- no. 1 in pursuance of the order of the commissioner in his letter No. RD. MAR. Sr. 386/81-82 dated 12-2-1982 as void and unenforceable. (e) But, notwithstanding the aforesaid orders and directions, respondent no. 3, is permitted to remain in possession of the land leased- to her and utilise the temporary drama theatre constructed thereon upto and inclusive of 31-12-1982 only on payment of rents stipulated in the lease deed dated 12-2-1982 to respondent No. 1 and that on or before the expiry of 31-12-1982 she shall remove the temporary structure and hand over vacant possession of said land to respondents nos 1 and 2 on the midnight of 31-12-1982 without any further orders from this Court or by respondents 1 and 2. ( 60 ) RULE issued is made absolute. But, in the circumstances of the case, 1 direct the parties to bear their own costs. ( 61 ) LET copies of this order be communicated to. respondents 1 and within 15 days from this day. ( 60 ) RULE issued is made absolute. But, in the circumstances of the case, 1 direct the parties to bear their own costs. ( 61 ) LET copies of this order be communicated to. respondents 1 and within 15 days from this day. --- *** --- .