Judgment :- The Thiruvananthapuram Specialists Hospital Private Limited, Pattom Palace (respondent No. 5 - hereinafter referred to as the Hospital in this judgement) was started at the initiative of medical specialists who were either working abroad or returned after years of experience abroad and in 1987 opened the hospital in Pattom Palace on the area under lease of 150 years on consideration of Rs. 65 lakhs. The land in question is on lease with the hospital. The hospital has multi specialties in Cardiology, Cardiac surgery, Opthalmology, lens implant and laser unit Nephrology with advanced dialysis unit. One by one thereafter the hospital started opening new specialities. The number of beds and increased specialities created need for the development and spread over to meet the demand for growing need of additional beds and specialities for extension of the existing construction. The application of the hospital to the State Government and grant of it in regard to exemption and relaxation of the relevant building rules is under challenge in this petition. 2. In the very Pattern palace compound, on the land, the Kerala State Housing Board constructed residential buildings and the petitioners, being the purchasers and therefore owners/ occupiers of the residential flats constructed by the Housing Board, have objected to the sanction order dated 30.11.1993 (Ext. P1) granting exemption, under section 5 of the Kerala Building Rules, 1984. The relevant text of the said order is reproduced as follows: "Under rule 5 of Kerala Building Rules 1984, and in consultation with the Local Authority and Chief Town Planner, Government are pleased to exempt the construction of a six storeyed hospital building in Survey No. 1759 of Madathuvilakom Village by M/s. The Thiruvananthapuram Specialists Hospital (P) Ltd. from the rules 15(5) & 33(c),17(2), 20(2), 21(12), 3(3), 18(2) of the said rules as per the plan submitted by them and approved by the competent authority subject to the following conditions:-. 1. A minimum Rear open space of 6.5 m should be provided for the proposed extension. 2. An emergency staircase should be provided. 3. No objection Certificate of the Airport Authority should be produced. 4. The above construction is also exempted from the soning regulation of the sanctioned Master Plan for Thiruvananthapuram city. 5. The order is not a sanction to start work. Before starting construction, development permit from Thiruvananthapuram Development Authority and Building permit from Thiruvananthapuram Corporation should be obtained. 3. 3. No objection Certificate of the Airport Authority should be produced. 4. The above construction is also exempted from the soning regulation of the sanctioned Master Plan for Thiruvananthapuram city. 5. The order is not a sanction to start work. Before starting construction, development permit from Thiruvananthapuram Development Authority and Building permit from Thiruvananthapuram Corporation should be obtained. 3. The objections spelt out in the petition are five-fold and are as hereunder: 1. In the Master Plan of Trivandrum city the area was declared as 'residential area' and the premises of the Palace building is declared as open space. 2. Some additions were made at the back of the building in the name of modification ignoring the protest of the neighbouring house owners by the 5th respondent. 3.The 5th respondent who has a vital role in maintaining health and hygene are creating an unhealthy and polluting the area. The waste materials from the hospital and the patients are being thrown in the open space just behind the houses constructed by the petitioners. 4. The bad odour emanated from the hospital is aggravated by the decaying and decomposed waste in addition to pollution. 5. More over the intolerable sound from the generator of the Hospital throughout the day and night has been created sound pollution" The said objections are further spelt out in para 4 of the petition in the following manner: 1. The proposed construction of the 6th storeyed building has been approved in such a fashion that the back portion has been projected on the Partom Junction - Medical College Road side thereby the side wall practically beded the compound wall. The proposed construction and the functioning of the Hospital would create pollution and the approval of the plan itself is contrary to the scheme approved by the 2nd respondent. Therefore, the approval was not granted by the 2nd respondent and the respondents 2 to 4 declined the permission on account of the earlier scheme. 2. While so the petitioners understand that Ext. P1 order was passed at the instance of the members of .the 5th respondents whom the petitioners understand have no right to construct the building. The land itself belong to the palace and the building alone has been leased out to them. 2. While so the petitioners understand that Ext. P1 order was passed at the instance of the members of .the 5th respondents whom the petitioners understand have no right to construct the building. The land itself belong to the palace and the building alone has been leased out to them. Even if the building and the lands are leaisd out the 5th respondent will not get any right over the property for the construction of the building." 4. The petitioners submitted representations to the Chief Minister - Exts. P3 and P4 to the petition and also to the Secretary to the Thiruvananthapuram Development Authority (respondent No.2) - Ext. P5 to the Chairman of the Housing Board - Ext. P6 before reaching this Court by this petition. 5. it is contended that the provisions of the Town Planning Act are crystal clear and mandatory as far as the finality to the situation of a scheme under section 3 of the Act, followed by the provisions of sections 5, 6 and 12 of the Act when the sanctioned scheme is published after compliance of the provisions of above sections, it is urged that although the State Government has powers in accordance with the provisions of section 13 of the Act to revoke or vary the scheme finalised under section 12 of the Act, what is required is the publication of draft - notification mentioning the reasons for the contemplated revocation and/or variation, specifying the date of effect thereof after inviting objections thereto, Reliance is also placed on the provisions of sections 16 and 17 of the Act. The submission is that the above provisions rule that a scheme finalised as per section 12 cannot be altered or varied except by resort to and compliance with the provisions, relied upon as above,' regarding revocation and variation, it is submitted that the area in question is declared as a Housing Locality and as such the impugned grant of exemption and relaxation of the Building Rules in favour of a private Hospital, being wholly contrary to the provisions of the Town Planning Act would have to be quashed and set aside on the ground that revocation or variation can be done only by legally permissible manner as provided by the provisions of the Town Planning Act referred to above. 6. During the course of submission, reliance is placed on three decisions of the Supreme Court*. 6. During the course of submission, reliance is placed on three decisions of the Supreme Court*. In Syed Hassan's case, an objection was raised to the mode of publication regarding modification to the Master Plan of Delhi regarding use of the area of land in question with a change from "Residential" to "Recreational", by a religious and charitable Dargab through its spiritual preceptor. In regard to consideration of the provisions of Sec. 44 of Delhi Development Act, 1957 it is ruled that there is no discretion to follow any other means of publication that the Secretary of the Authority may mean. It is held that the mandatory requirement of the publication as provided in S.44 of the Act was not complied with. 1. (1991) 1. S.C.C. 401 - Syed Hasan Rasul Numa v. Union of India and others. 2. (1991) 4. S.C.C. 54 - Bangalore Medical Trust v. B.S. Muddappa and others. 3. (1995) 4. S.C.C. 301 - Shabi Construction Co. v. City & Industrial Development Corporation, Bombay. 7. in the Bangalore Medical Trust case, a site in question in the city of Bangalore reserved as an open space in an improvement scheme under the city of Bangalore Improvement Act, 1945, by the order of the State Government under the next Bangalore Development Authority Act, 1976 was allotted by the Development Authority to a private Medical Trust, for the purpose of constructing a trust hospital. It was held that the proceeding before the State Government suffered from absence of jurisdiction to convert the site reserved for public park to "civic amenities" and allot it to a private nursing home and therefore the impugned resolution of the Authority was null and void and without jurisdiction. In the course of reaching the above conclusion from the reasoning, the following aspects are relied upon by the counsel: 1. The purpose for which the Act was enacted is 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. 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 it could be considered improvement over necessity like a public park. The exercise of power, therefore, was contrary to the purpose for which it is conferred under the statute 2. The exercise of power of alteration of a scheme under sec. 19(4} is hedged by use of the expression, 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. What is an improvement 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. Sub-section (4) of Sec. 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. Absence of power apart, such exercise is fraught with a danger of being activated by extraneous considerations. 3. Discretion is an effective tool in administration, it provides an option to the authority concerned to adopt one or the other alternative. But a better, 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 of 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 arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly. Where the law requires an authority to act or decide. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly. Where the law requires an authority to act or decide. "If it appears to it necessary' on if he is 'of opinion that a particular act should be done then it is implicit that if should be done objectively, fairly and reasonably. In a democratic set up the people or community being sovereign the exercise of discretion must be guided by the inherent philosophy that the exercises 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. 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. Public interest or general foed 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 standard provided by the statute itself. The authority exercising discretion must not appear to be impervious to legislative directions. 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. No one howsoever high can arrogate to himself or assume without any authorisation express or implied in law a discretion to ignore the rules and deviate from rationality by adopting a strained or distorted interpretation as it renders the action ultra vires and bad in law." 8. In Shabi Construction Company's case, an agreement entered into by the Planning Authority with a private builder providing increased floor speck index was quashed being in the absence of a prior sanction of the State Government, in regard to which reliance was placed on the promissory estoppel, being contrary to law and beyond' the authority or power of the Planning Authority. It is held that the prior approval of the State Government is the sine qua non for a final development plan as also for minor modification thereof and the agreement in question so far as it related to FSI did not and could not bestow any legal right legally enforceable in favour of the construction company. 9. The observations are unquestionable and undisputed. The question is as to how do they emerge for application to the factual matrix and further when in a property under a lease of 150 years, the hospital is already functioning from 1987 onwards, an application for proposed planned extension submitted by the respondent No. 5 under the provisions of the Kerala Building Rules 1984, if sanctioned by the State Government under Rule 5 of the said rules, it would be possible to exercise extraordinary jurisdiction under Art.226 of the Constitution of India, both taking into consideration public interest and larger justice and that too from the petitioners who are the members of the tenements on the land from the erstwhile Pattom Palace compound given to the Kerala Housing Board. The answer would be in the negative. 10. Firstly, it would be seen from the impugned order (Ext. P1) that it deals with the application of exemption of the Building Rules which is perfectly within the powers of the State Government wide Rule 5 thereof. The sanction of exemption, if considered in the light of the "Rough sketch" annexed to the Commissioner's report dt. May 10,1994, appointed by this Court would give the fair idea of the location. The Commissioner has noted that as per plan HI published, the hospital is situated in the "public" and 'semi public zone". It is recorded that the distance between the compound wall of the building of the petitioners and the place where the proposed building going to be constructed from east to north are 8.5 metres and south to west is 6.5 metres. Seeing the situation given in the sketch, and taking into consideration the undisputed fact that the hospital is already functioning successfully from 1987 onwards, on this count it is not possible to exercise powers under Art.226 of the Constitution of India. 11. Secondly, the material on record shows (Ext. Seeing the situation given in the sketch, and taking into consideration the undisputed fact that the hospital is already functioning successfully from 1987 onwards, on this count it is not possible to exercise powers under Art.226 of the Constitution of India. 11. Secondly, the material on record shows (Ext. R5(a) to the counter) that in the Court of the Sub Judge, Thiruvananthapuram, in O,S. No. 624 of 1992 filed by the Association of Residents, for the permanent injunction, Civil Court in an interim application, confirmed in appeal, the question of nuisance, health hazard and pollution are considered on the basis of documents holding that no interference is required. Substantive suit is pending in the Civil. Court wherein the question that are involved and ought to be involved could be agitated. The averments in this connection are countered creating a situation of disputed questions of fact incapable of going through in this petition effectively in any way. 12. Thirdly, the hospital is a private property under a lease of 150 years and on the land in question the hospital is already functioning from 1987 and the need for expansion can hardly be disputed under the present situation when the hospitals by private trusters encouraged by the State Government as a policy to meet the situation of demands of the requirement of public health. None can deny the importance of environment, and pollution of all aspects. Today, a stranger's attitude cannot be adopted to consider the felt necessities of conscious contact with the required needs particularised by the peculiar one-dimensional topographical situation of this State dealing with the adverse man-land ratio becoming adverse still practically every six months even/ time inspite of the situation that quite a sizable population of this State is far outside as a result of the policy of the encouragement in the context. This conscious contact also requires to consider, when the teeming millions ever increasing at spectacular rapid rate, justifying the required need to see as more important and compelling the need of super-specialists hospitals in the State. Without ignoring the importance of aspects of environment and pollution, what is necessary is the weighment - balance of forbearance in the context of urgent health needs. Without ignoring the importance of aspects of environment and pollution, what is necessary is the weighment - balance of forbearance in the context of urgent health needs. These are matters of policy and if the building rules are legally relaxed by the State Government, the Writ Court which is inherently shy and slow would justifiably have to shrink in restraint. 13. Fourthly, the Kerala Housing Board has constructed tenements and buildings on the land and are now occupied, obviously on concessional terms from the Board. This Court cannot loose sight of what is known as "manager attitude" in opposing the relaxation of rules by the State Government under the statutory provisions of the Kerala Building Rules 1984 in favour of the requirement of satisfaction of the need of expansion of the super-specialities of the Hospital. 14. It is needless to emphasise that the jurisdiction essentially and primarily to be exercised in the interest of justice and at times even at the cost of understanding little deviation of rules and that too when the petitioners establish injustice to them. Rules are for convenience and the notion that town planning has an advance sight in the long future when gets shattered down with ever increasing population load, the Court would have to take into consideration localised peculiarities in the exercise of extraordinary powers under the exceptional jurisdiction. For all the above reasons, petition stands dismissed. Needless to state that all interim orders would merge with the above final order. In the circumstances there shall be no order as to costs. Order accordingly.