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92. Issue no.1 whether landscape 'green' and 'open area' as shown in the map / layout plan dated 06.01.2005 pertaining to plot no.10 Vaibhavkhand Indirapuram Ghaziabad be considered as park and the construction raised in block Type-C was encroachment upon open park area (as shown in layout plan 06.01.2005)?

Further, in the alternative whether the petitioner have established fact that the 'green area' and 'open area' as shown in the map layout plan dated 06.01.2005 is earmarked as park exclusive?

99. In that regard the claim of the petitioner is rested on the anvil that the brochure distributed to sell the apartment to the petitioner has shown two parks adjacent to petitioner's sun tower Type-D, the two parks shown were - Joggers Park and Central Park (near G+13, Type-C, which is now being separated from the petitioner's building) and that way incorrect statement has been made in paragraph no.8 of the counter affidavit by respondent no.1 as G+34 to suppress the construction made in the basement area by completely excavating the soil beneath the as green area making it unsuitable for planting trees and plants. Learned counsel for the petitioner claims that green area would mean that the area which is completely or partly covered with grass, trees. shrubs or other vegetation. Thus, the area shown green area in the layout map dated 06.01.2005 is 'park' area for all practical purposes.

100. Before we proceed further in pursuance of the aforesaid specific submission on point of treating 'green area' as 'park' in the layout map dated 06.01.2005, it would be convenient to take into account the definition of park as given in the Uttar Pradesh Parks, Playgrounds and Open Spaces (Preservation and Regulation) Act, 1975, [U.P. Act No.55 of 1975], as defined under Section 2 (b):-

"(b) "park" means a piece of land on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and the whole or the remainder of which is laid out as a garden with trees plants or flower-beds or as a lawn or as a meadow and maintained as a place for the resort of the public for recreation, air or light;".

137. In that regard, at the cost of repetition, we may observe that burden to prove the construction on plot Type-C (G+34 floors) to be on the piece of land that was meant and earmarked to be used as 'park' in the undisputed sanctioned layout plan / map dated 06.01.2005 is on the petitioner. The petitioner has relied on the fire layout plan dated 06.01.2005 wherein certain areas earmarked for block Type C (G+13) and E (G+17) marked as landscape green and green area and based on that claim is raised to the point that after revision of the sanctioned map on 31.07.2013 the same has been taken away, does not carry force. The layout plan dated 06.01.2005 (which is inclusive of the fire layout plan dated 06.01.2005) is not conclusive to any area earmarked there, except to indicate fire path of the plot intended to earmark path for fire tender movement. It is indicative of fire path and does not deal with the green area. It does not mention any legend or elaborate marking or measurement of even ground coverage of the plot. The town and country planner of respondent no.1 had personally appeared before this Court and produced its record and explained the facts that upon written recommendations of the fire department, the respondent no.1 sanctioned the fire plan with the said objective. It is no denying fact that the fire layout plan is not part of the pleading as it has been filed by the petitioner through its supplementary rejoinder affidavit to counter affidavit filed by the respondent no.1. Moreover, the reliance of the petitioner on fire layout plan dated 06.01.2005 is in contravention of its own stand taken in the writ petition, where it relied without any protest on the layout plan dated 06.01.2005 and it never challenged its sanctity. The plan dated 06.01.2005 is admitted paper of the petitioner and by way of argument, now the petitioner is craving for inherent defect on strength of the fire map to put in doubt the very authenticity of the admitted layout plan. Fire map is unchallenged in the petition. A fact not pleaded cannot be argued. The petitioner should know that he cannot travel beyond periphery of his pleading in the writ petition.