ORDER Dipak Misra, J. 1. Life is a glorious and precious gift of nature, a gift that one tries to retain being at war with 'time'. But the magnificent lumino-sity of life is lost if life is lived without proper health. Health is the true essence of life and no one would barter it for all the tea in China. Provision for open air, pure water and avoidance of polluting substances are the call of the day to preserve and sustain a hygienic atmosphere in otherwise hustle-bustle urban areas. With the growth of population these aspects have gained priority, on the foundation of the first premise that prevention is better than cure. Any curtailment or any effort to curb this phenomenon is not to be mildly countenanced. The present public interest litigation exposes the unconcerned attitude and non-responsible proclivity of the Special Area Development Authority, Bhilai, Durg in its attempt to convert an open space to a residential area contrary to the previous Scheme violating the promise to the people of the locality and above all destroying the quintessence of human life, health. Their action, therefore, called in question in the present writ application by a group of public spirited persons praying for issue of appropriate writ in the nature of prohibition and such other writs restraining the Respondents to abstain from converting an open space, which the Petitioners have referred to in the petition as a park (Ashok Vihar) to a residential area. 2. The factual backdrop as portrayed by the Petitioners is that Special Area Development Authority Bhilai (hereinafter referred to as 'SADA') had formulated a development plan under its residential scheme called Motilal Nehru Nagar (East) and further developed blocks in this residential colony to attract its purchasers. A copy of the map of the said scheme has been annexed to the writ petition as 'Annexure P/1'. As per the said scheme certain areas were left out to be used as green belts parks. Apart from the earmarked portion the open space for development of park, other facilities were also made available which impressed the people to be covered under the scheme and accordingly, applied for grant of residential plots in the said scheme called Motilal Nehru Nagar (East). It has been stated in the petition that the Petitioners Nos. 1 and 2 were granted plots on which they have constructed their residential houses. It has been stated in the petition that the Petitioners Nos. 1 and 2 were granted plots on which they have constructed their residential houses. The Petitioner No. 3 and 4 being the members of Bhilai Steel Employees Housing Cooperative Society Limited were allowed to get allotment and they have constructed their respective houses. In the year 1991 the Petitioners came to know that the Chairman of 'SADA' has disposed of part of land earmarked for parks and schools in the approved layout 'Annexure P/1' as residential plots. It has been averred in the petition that area which was earmarked for being developed as a public park had been developed by the people of the locality after reaching an understanding with Chairman of 'Sada' in June, 1988 and the said park is popularly called Ashok Vihar and the park in question has a fence with gate which has been provided by 'SADA' itself. The Petitioners have further pleaded that they have challenged the illegal conversion. They have made a representation to the 'SADA' Authorities but the same has become an exercise in futility. In the Winter of 1994 when the Petitioners found that some people were measuring and demarcating the plots in Ashok Vihar and further came to learn that It was sought to be converted as the residential blacks 7-B' and plots were being carved out, they approached this Court for redressal of their grievances. 3. A return had been filed by the Respondent Nos. 1 and 2, 'SADA' and its Chairman stating inter alia that the land in question was transferred to 'SADA' by Bhilai Steel Plant and after transfer a development plan in Motilal Nehru Nagar (East) in the year 1979-80 was proposed for allotment for housing purposes. As during that period the area was not developed and demand for housing plots was also not very heavy at various places, an open space was left keeping in view the prospects of future expansion and to accommodate the demand for residential plots in future. In the year 1985-90 many employees from Bhilai Steel Plant retired by virtue of which there was a huge demand for housing plots and, therefore, open space left in front of plot No. 2. Motilal Nehru Nagar (East) was converted into residential plots along with various other open space left earlier. In the year 1985-90 many employees from Bhilai Steel Plant retired by virtue of which there was a huge demand for housing plots and, therefore, open space left in front of plot No. 2. Motilal Nehru Nagar (East) was converted into residential plots along with various other open space left earlier. The Respondents have denied that the space in question was being used as a park. Their further plea is that in the year 1989-90 the development plan of Motilal Nehru Nagar (East) was revised in view of the norms prescribed by the competent authority i.e. Director, Town and Country Planning Department, Bhopal and the same was approved on 24-10-91. The letter of approval has been brought on record as 'R-1' wherein, it is mentioned that the approval was granted under Section 28 of the Madhya Pradesh Nagar Tatha Grih Nivesh Adhinium, 1973 (hereinafter referred to as 'Act'). The revised plan has also been brought on record as 'Annexure R-2'. It is also putforth in the return that the development plan which was prepared in the year 1979-80 was a proposed plan and the said plan was further revised and approved by the Director in the year 1991 and the steps have been taken in accordance with the approved scheme. It is also stated in the return that before the approval of the revised development plan, objections were invited in M.P. Gazzete dated 11/10/91 but as no objections were received the proposed development plan as per the norms prescribed under the Act, became final. 4. A rejoinder has been filed to this return by the Petitioners indicating inter alia that the 'R-1' which has been annexed to the counter affidavit is of 24-10-91 which has been approved under Section 28 of the Act though objections were called for under Section 50 of the Act. Mandatory provisions as provided under Rule 18 of Madhya Pradesh Nagar Tatha Gram Nivesh Niyam, have not been followed and the mandatory requirement of newspaper publication has also not been complied with. Apart from this aspect it is also stated in the affidavit that the earlier scheme which has been brought on record under 'P-1' could not have been modified by 'R-1', more so, for converting a park or an open space to a residential area. An additional rejoinder has also been filed highlighting certain legal provisions. Apart from this aspect it is also stated in the affidavit that the earlier scheme which has been brought on record under 'P-1' could not have been modified by 'R-1', more so, for converting a park or an open space to a residential area. An additional rejoinder has also been filed highlighting certain legal provisions. An application for taking additional document on record has also been filed whereby a map has been annexed as a part of the petition to indicate that land in question had also been earmarked as 'park' in the plan which was made by the Employees Cooperative Housing Society, Bhilai before its transfer to 'SADA'. While dealing with the pleadings of the parties it is necessary to state that an application for amendment was filed by the Respondent Nos. 1 and 2 seeking to amend their return to the extent that wherever the 'development plan' had occured, same should be substituted by layout plan. Many maps have been brought on record by the Petitioners as well as the Respondents. The layout plan which has been brought on record as 'R-5' is the final approved plan as has been asserted by the 'SADA' and its authorities. It is also pertinent to mention that as per the direction of this Court the Respondent Nos. 1 and 2 filed a statement indicating that initially layout plan prepared by the Bhilai Steel Plant Employees Cooperative Societies Limited comprised of a very small portion of land presently known as Motilal Nehru Nagar (East) and gradually as per need ultimately in the year 1991 a final layout plan was prepared and approved by the State Government by its letter dated 24-10-91. 5. We have heard Mr. Manoj Sharma, learned Counsel for the Petitioners Mr. S.P. Agarwal, learned Counsel for the Respondent Nos. 1 and 2, Mr. U. Awasthy for Respondent 4 and Smt. Shobha Menon, learned Government counsel for State. The sole question that falls for consideration is whether Respondent Nos. 1 and 2 had any point of time had earmarked any area as open space in Motilal Nehru Nagar (East) and whether such an open space was meant for a 'park' and whether such earmarking was binding on 'SADA' or subject to change finally as has been done in the year 1991. 1 and 2 had any point of time had earmarked any area as open space in Motilal Nehru Nagar (East) and whether such an open space was meant for a 'park' and whether such earmarking was binding on 'SADA' or subject to change finally as has been done in the year 1991. To appreciate the real crux of the matter, we have perused 'P-1' wherein a particular area has been carved out in the layout plan for the purpose of 'park'. Prior to this, as has been brought out, Bhilai Steel Plant Employees Cooperative Housing Society had also reserved the said area meant for a park. The residential scheme 'Annexure P-1' was admittedly circulated by the Respondent No. 1. The said fact has been controverted. It is interesting to note the stand taken in the counter affidavit filed by the Respondent No. 1 and 2. It reads as follows: As regards para 5 (v) of the layout and the development plan for housing Scheme in Motilal Nehru Nagar was prepared in the year 1979-80 but no records of approval of the 'development plan' by the Director, Town and Country Planning Department, M.P., Bhopal are available with the Respondents authorities. However, it is admitted that provision for providing all prescribed facilities and amenites were made in the proposed plan. From the aforesaid it is clear as day that the residential scheme was floated. It is also not disputed that plots were alloted to certain persons under the Scheme. It is being contended by the Respondents that the layout in question was not a finally approved developed plan but an adhoc/proposed plan. In this context, it is worthwhile to refer to paragraphs 13 and 14 of the return filed by the Respondents No. 1 and 2: 13: As regards para 5 (x) allegations made are absolutely false and hence denied. It is denied that the Respondents authority unlawfully disposed of any part of the land as submitted above. After the plan was legally revised and approved by the Director, the housing plots have been sold. 14: As regards para 5(xi), the allegations made are denied. It is denied that the Respondents authority unlawfully disposed of any part of the land as submitted above. After the plan was legally revised and approved by the Director, the housing plots have been sold. 14: As regards para 5(xi), the allegations made are denied. It Is denied that there was any park adjacent to Block No. 7 and closed vicinity of Blocks No. 7, 8 and 11 there was no park, there was some open space available which has been as per revised plan, permitted to be used for housing by the Director, Town and Country Planning Development, M.P. Bhopal. No objections were received on the proposed 'development plan', notice of which was published in M.P. Gazzette, Part-III (i) dated 11/10/91. It is absolutely false and denied that the Petitioners have planted trees around this park, and that there was any park. It is further denied that there is any park named as 'Ashok Vihar'. 6. From the aforesaid pleadings it is perceptibly clear that though the Respondents are disputing that the area in question was earmarked for park, there is admission that it is an open space and initially meant to be so. The various maps produced before us indicate that it is an open space. The Respondent Nos. 1 and 2 have also admitted that keeping in view the demand for houses, they have taken to decision the convert the same for a housing colony. 7. From the initial return filed by 'SADA' this Court is apprised that 'P-1' was circulated by the said Authority but it was a proposed layout. It is also stated that the plan has been revised. We have perused 'R-3' to the initial counter where objections were called under Section 50 of the Act on 17th December, 1991, but, however, under 'Annexure R-1' approval has been granted under Section 28 of the Act. Learned Counsel for the Petitioners has strenuously contended that once steps were taken under Section 50 of the Act to introduce a scheme the same should have been properly adhered to and recourse should not have been taken to the provisions under Section 28 of the Act. Section 50 deals with the preparation of Town Development Scheme and it lays down a complete procedure for preparation of the said scheme. It postulates calling for objections and suggestions and consideration thereof, whithin 30 days. Section 50 deals with the preparation of Town Development Scheme and it lays down a complete procedure for preparation of the said scheme. It postulates calling for objections and suggestions and consideration thereof, whithin 30 days. The final scheme is required to be published in the official gazette. A scheme prepared under Section 50 remains in force for a specified period. It lapses after expiry of three years, if not worked out. Countrary to this Section 28 does not deal with a town planning scheme as envisaged under Section 50 of the Act. Section 28 covers a different area altogether. It is relevant to reproduce Sections 27 and 28 of the Act: 27. Development undertaken on behalf of Union or State Government - (1) When the Union Government or the State Government intends to carry out development of any land for the purpose of its departments or office or authorities, the officer-in-charge thereof shall inform in writing to the Director the intention of the Government to do so, giving full particulars thereof, accompanied by such documents and plans as may be prescribed at least thirty days before undertaking such development. (2) Where the Director raises any objection to the proposed development on the ground that the development is not in confirmity with the provisions of the development plan, the officer shall- (i) make necessary modifications in the proposals for development to meet the objections raised by the Director, or (ii) submit the proposal for development together with the objections raised by the Director to the State Government for decision: Provided that where no modification is proposed by the Director within thirty days of the receipt of the plan of the proposed development, the plan will be presumed to have been approved. (3) The State Government, on receipt of the proposals for development together with the objections of the Director shall, approve the proposals with or without modifications or direct the officer to make such modifications in the proposals as it considers necessary in the circumstances. (4) The decision of the State Government under Sub-section (3) shall be final and binding. (5) The State Government may, by notification exempt from the operation of this section development of any land undertaken on behalf of the Union or State Government for the purpose of any project or operational constructions as may be specified therein." 28. (4) The decision of the State Government under Sub-section (3) shall be final and binding. (5) The State Government may, by notification exempt from the operation of this section development of any land undertaken on behalf of the Union or State Government for the purpose of any project or operational constructions as may be specified therein." 28. Development by Local Authority or by any authority constituted under this Act - Where a Local Authority or any authority specially constituted under this Act intends to carry out development "of any land for the purpose of that authority, the procedure applicable to the Union for State Government under Section 27 shall, mutatis-mutandis apply in respect to such authority. It is relevant to state here that the plan approved under Section 28 does not lapse. Reading Section 28 in proper perspective the inevitable conclusion is that, if a Development Authority wants to utilise a particular place it has to be approved by the Director and the scheme of the Authority has to be in consonance with the masterplan. In the present case, we are not adverting whether there has been violation of the masterplan or not. We have referred to the aforesaid provisions solely to indicate that the stand taken in the return that no objection were filed by the persons of the locality, has no legs to stand upon inasmuch as the scheme under Section 50 never saw light of the day and the Respondents No. 1 and 2 as it appears proceeded for obtainment of approval under Chapter II and the same has been granted by the State Government in exercise of power under Section 28 of the Act. 8. The approved scheme which has been finalised, cannot be changed from time to time. The case of the Petitioners is that plan floated/circulated was under the approved scheme. It is stated in the return that the plan was revised and in the same breath it is stated that a development scheme has been approved by the Director under 'R-1'. Various layouts have been brought on record where from we find that the area in question has been earmarked as on open space. Whether it is a 'park' or not is difficult to determine but there is not iota of doubt that the area has been preserved as open space. Various layouts have been brought on record where from we find that the area in question has been earmarked as on open space. Whether it is a 'park' or not is difficult to determine but there is not iota of doubt that the area has been preserved as open space. Once the people at large have been made aware of a scheme in the year 1978-79 after a lapse of 16 years, it is not appropriate on the part of a public authority to take a stand that no records are available to show whether the scheme was approved or not. An open space is essential and the residents of the colony had the hope and aspirations to utilise the open space and to gain the benefit of open space for fresh air, light and avoidance of congestion. In this regard we may refer to the decision rendered in the case of Kantilal v. Chairman, Town Improvement Trust, Ratlam, AIR 1986 MP 134 wherein, it has been observed as follows: After all a residential scheme is prepared with certain object from the view point of health, sanitation, light, air and other amenities to the people of the colony and in a proper Town Development Scheme it is also necessary to provide open space of land for roads, open spaces, gardens, playgrounds, stadia, recreation grounds, schools, markets, motor vehicle stands, theatres, public urinals and latrines, patrol service station, and public purposes of all other kinds depending upon the area of the scheme. From the map the Annexure-A it is clear that the open land has been kept with that purpose only. The Respondent No. 1 in their returns have nowhere stated for what purpose, according to them, this land was kept open. Obviously this open land, therefore, could not be leased out for purpose of a Dharamshala as has been done in the present case. In that case the Respondent No. 1 should have given plots of land laid out in the said scheme for this purpose, but in no case, the open land which is kept reserved for the beneficial enjoyment of the residents of the colony and the plot-holders, would be leased out in this manner. In that case the Respondent No. 1 should have given plots of land laid out in the said scheme for this purpose, but in no case, the open land which is kept reserved for the beneficial enjoyment of the residents of the colony and the plot-holders, would be leased out in this manner. In this context, we may also refer to the decision in the case of Bangalore Medical Trust v. D. S. Mudhapa, AIR 1991 SC 1902 wherein, Hon'ble Supreme Court has held that when the area has been earmarked for a public park it cannot be converted into a private Nursing Home. 9. Recently in the case of H. Kashinath v. State of Karnataka, AIR 1995 SC 2510 , the apex Court has observed that, when a particular area has been earmarked for public or semi-public purposes' under Comprehensive Development Plan, it cannot be utilised for other purposes. The importance of public use of open space has also been highlighted in the case of Virendra Gour v. State of Haryana, 1995 (2) SCC 577 . 10. Recently this Court in writ petition No. 2902 of 1995 (Brijendra Kumar and Ors. v. Chairman, Raipur Development Authority considering a scheme under Section 50 of the Act has held that after a scheme has come into existence neither the authority nor the Director of Town and Country Planning Department of the State Government has any power to interfere with the scheme and they are not authorised to use the open space for any other purposes, 11. In the present case the documents clearly show that the area in question was demarcated as 'open space' and the Respondents No. 1 and 2 had demonstratively made this known to the public at large. The stand taken by the Respondents is far from being convincing inasmuch as they have not been able to clearly putforth with regard to the achoc or provisional nature of the layout under 'Annexure P-1', Once a residential colony has come into existence and people have started living, it is expected that the public authorities should not affect the living pattern. No special emphasis is needed to observe that open space is a necessary, any, requisite provision for having a healthy atmosphere. Respondents cannot be given liberty to play with the health of the citizens on the pretext that they have to provide residential accommodation to the growing population. No special emphasis is needed to observe that open space is a necessary, any, requisite provision for having a healthy atmosphere. Respondents cannot be given liberty to play with the health of the citizens on the pretext that they have to provide residential accommodation to the growing population. The learned Counsel for the Respondents No. 1 and 2 has submitted that some open space is still available and the amenities provided under the 'P-1' have not been totally curtailed. The submission though attractive does not impress us because growing population cannot be regarded as a factor, to marginalise the open space which is a part of a residential colony. It is open to the authorities to make arrangements at other places but not to convert an open space which not only affects the living process of the people already residing therein, but also affects people who are to occupy new accommodations. 12. In view of the preceding analysis we are of the considered view that action of the Respondents No. 1 and 2 converting the open space covered under 'P-1' to a residential are a is illegal and unsustainable. The approval granted under Section 28 the Act to that limited extent is quashed. Further, we issue a writ of prohibition to the Respondents No. 1 and 2 not to convert the open space in respect of the colony in question to a residential area. 13. In the result, the writ application is allowed. No. costs.