Dalip Singh, Judicial Member:
1. This Original Application was originally filed as a Writ Petition No.13851/2009 before the Hon'ble High Court of Rajasthan at Jaipur and subsequently came to be transferred to this Tribunal under the orders dated 23rd September, 2013 of the Hon'ble High Court.
2. On receipt of the case in NGT, Bhopal Bench, notices were issued by this Tribunal vide its order dated 5th December, 2013 and the matter was taken up after service on 27th January, 2014. The Applicant did not appear though the Respondents put in appearance before the Tribunal. To enable the Applicant to appear before the Tribunal the case was adjourned to 18th February, 2014. On 18th February, 2014, the Applicant again failed to appear before this Tribunal and after hearing the learned counsel for the parties, the following order was recorded : -
"This petition is originally filed as a Writ Petition before the Hon'ble High Court of Rajasthan. The Applicant had raised the dispute with regard to keeping the open space in plot no. 3-B as children park / green belt in Sewage Farm, New Sananger Road, Jaipur stating that the same had been earmarked for the said purpose only. Having been issued with notices by the Hon'ble High Court of Rajasthan, Jaipur Development Authority (JDA) has filed their reply. The Respondent No. 5 Pink City Heritage Resort has moved Misc. Application for being impleaded as party and also submitted its reply. Neither, the Applicant nor the Respondent No. 5 has chosen to appear before the Tribunal. We find from the perusal of the reply filed by the Respondent No. 5 that plat 3-B has been auctioned by the JDA in favour of the Respondent No. 5 and the Respondent No.5 has developed the same by raising construction. It has further been stated by filing a site plan at Annexure R-5/4 that out of the total area of 38500 sq. mtr, re- planning was done for 25240 sq. mtrs. of area and 3 residential plots were carved out as plot no.3, 3A and 3 B. It has been alleged that on both in plot no 3 and plot no. 3A that residential apartments (Group Housing) known as Mahavir Resi I and II have already been developed and about more than 250 residential units which were constructed, are now fully occupied. It has further been stated that plot No. 3-B which was purchased by the Respondent No.5 on being put to auction by the JDA, has been developed by the Respondent No. 5 raising construction on the same. It has further been stated that towards the south at the intersection of 2 roads of 60 ft. wide, a park has been developed in the area 7839 sq. Mtrs. We find that the JDA in its reply filed on 25.07.2012 in para 6 has stated that a park has been developed by leaving a 'Suvidha Khetra' for park etc. on a area 4100 sq. mtrs. of land. Since two averments are not reconcilable, the Learned Counsel for the JDA is directed to file an affidavit along with layout plan and presently existing situation indicating the size and location of plots no. 3, 3-A,3-B as well as 'Suvidha Khetra' / park area indicating specifically the area on which the construction has been raised upon, space left in plot no. 3, 3-A and 3-B as also the position with regard to the fourth plot as the inter section of the two roads of 60 ft. wide which as per the Respondent No. 5 was 7839 sq. mtrs. and which as per the JDA has been reduced to 4100 sq. mtrs. The JDA should also answer whether originally the fourth plot at the intersection of the roads as shown in the site plan at Annexure - 5/4, was meant to be that of 7839 sq. mtrs. in the approved plantof the JDA and in what manner the same has came to be reduced to 4100 sq. mtrs. as mentioned in para 6 of their reply and the JDA shall also give the layout of the development carried out on the fourth plot which as per their reply is 4100 sq. mtr. including development of park etc. on the same and whether any plantation has been carried out over the same.
3. In terms of the directions issued in the above order, the Respondents on 29 th April, 2014 during the course of hearing, submitted that an area of 4424 Sq.Mtr. is available for the park in the area and an affidavit to that effect was also filed before the Tribunal. Today, however a report has been filed by the Respondent/Jaipur Development Authority wherein the following has been stated : -
"1. That it is very respectfully submitted by the answering respondent that pursuant to the order passed by this Hon'ble Court the official of the JDA conducted a spot inspection of the plot No. 3, 3A, 3B and park for the actual verification of the situation at the spot. That on the inspection at the spot it was found that at the plot No.3 Flats of Mahim Group are constructed and the area of the Plot No. 3 is 8370 Sq. Mtr.
2. That it is further submitted on plot no. 3A and 3B also the flats of Mahim Group are constructed and the plot area of plot No. 3A and 3B is 8415 and 8455 Sq. Mtr. respectively.
3. That at this juncture it is pertinent to mention that at the time of physical verification it was found that the plot area was on a higher side as mentioned in previous letter and records on physical verification it was found that the plot area of park was 7839 Sq. Mtr.
4. That it is further submitted that the park is covered by boundary wall, bench and footpaths are also developed in said park.
5. That it is further submitted by the answering respondent that the above indicated area will be left open for the purpose of the local area and environment protection.
4. Learned counsel for both the Jaipur Development Authority as well as Municipal Corporation, Jaipur both submitted that as of today the total area available for the park and on which the park is in existence is 7839 Sq. Mtr.and is being regularly maintained. Photographs indicating the same which were taken on 7th May, 2014 have been filed along with the affidavit.
5. The Applicant has chosen not to appear before this Tribunal. However written submissions have been filed on behalf of the Applicant. The original prayer made in the petition is for a direction to the Respondents to maintain an open space for children park at plot No. 3-B, Swej Farm(Colony), Jaipur and to ensure that it is maintained as a park and green-belt and not used for residential or commercial activity. The original petition also states that Respondents be directed to ensure that the park/green-belt area which is left in the colony should be maintained as a green-belt and should not in any manner be curtailed by any commercial activity or any other infrastructural facilities.
6. A reply was submitted by the Respondents before the Hon'ble High Court and the Respondent No. 5 categorically submitted that after re-planning, the park area was fixed on 7839 Sq. Mtr. and in the affidavit and compliance report submitted today also it has been stated that the total area of the park in the colony in question is 7839 Sq. Mtr. Though earlier during the course of hearing, it was given out about 4424 Sq. Mtr. it has been corrected by the Respondents in the compliance report submitted today. It has also been submitted that the said park is being properly maintained by the Municipal Corporation and the Jaipur Development Authority.
7. In view of the above and also looking the averments made in the petition and taking into consideration the written submissions made by the Applicant who has primarily given only the background and the events leading to the development of the area it is clear that the Applicant has not contradicted the fact with regard to the averments made in the reply by the Respondent No. 5 that the park is in existence with an area of 7839 Sq. Mtr. as was submitted in the reply before the Hon'ble High Court and reiterated in the compliance report submitted today.
8. In the light of the above, we dispose of this application taking note of the reply submitted by the Respondents as well as compliance report submitted today on behalf of the Jaipur Development Authority that for the Swej Farm complex, the park measuring 7839 Sq. Mtr. has been developed by the Jaipur Development Authority and the Municipal Corporation, Jaipur with a boundary wall, benches, footpath etc. However, it is made clear that the said park shall at all the time be maintained as an open space and the area of the same shall not be reduced in any manner nor the park shall be utilized for any commercial activity or for the purposes of raising any construction for the same even for the community purposes.
9. However, looking at the photographs filed today along with the affidavit by the Respondent No. 2, it is observed that there is a scope for planting more number of trees in the aforesaid park / open space surrounded by multi-storeyed residential apartments. Therefore, the Respondent Nos. 2 and 3 shall plant more number of broad leaved indigenous ornamental and shade bearing trees in the park / open space which not only increases the greenery but improves the aesthetics in the area. This work shall be taken up during the ensuing monsoon season with the assistance of Urban Forestry / Social Forestry officials of Jaipur city duly involving the members of the Applicant's society who shall also take care of the protection and maintenance of the trees.
10. In the above terms, this Application stands disposed of.