- (1.) THE three petitioners, Messrs. Bal Ram, Sita kam and Sri Ram, all sons of Kasi Ram, are resident of House No. 1, Kaharan, Abkari Road, Halka No. 6, district Muzaffarnagar, have filed this writ petition 11 years ago with a grievance that the respondents being the District Magistrate, Muzaffarnagar, the Superintendent of Police, Muzaffarnagar, the Executive Engineer, Public Works Department, Muzaffarnagar, Municipal Board, Muzaffarnagar, and the prescribed Authority, Muzaffarnagar, were threatening to demolish the ground floor of their house which had stood at its place since 1932 when their father had purchased it. THEir allegation against the respondents, so arrayed, is that of plans which had been sanctioned for building the house in 1932, and of an altered plan which had been permitted by the Municipal Board, Muzaffarnagar, in the year 1972, specifical ly on 11 July, 1972, despite which the respondents are bent to demolish the ground floor of the petitioner house. A passing reference had been made in the writ peti tion that the petitioners had been permitted to construct shops la the altered plan in 1972. It is contended in the writ petition that a photostat copy of the sanctioned altered plan dated 11th July, 1972, would be placed before the Court at the time of the hearing of the petition. This plan, if it is a matter of record, ought !o have been appended to the writ petition at the time of hearing of the petition. THE petitioners' counsel was unable to produce it.
(2.) IN the counter-affidavit the altered plan of which the petitioners mention in the writ petition are not accepted, but are denied. The counter-affidavit submits that, infact, what the petitioners have done, is to encroach upon municipal land by an illegal construction and have ventured to build without authority on a public street. IN the counter-affidavit of the Municipal board, the petitioners*' claim of any sanction accorded to build the like of which the petitioners refer to in the writ petition is denied. The Municipal Board, Muzaffarnagar, on the contrary, refers to the activity of the petitioner's as an encroachment upon the land which is the road and this, the Municipal Board contends belongs to the Sate. The counter-affidavit was brought on record in 1987. It has been eight years, since if bar Is in on record and the petitioners have not been able to file a rejoinder affidavit. The only assertion on behalf of the petitioners is that the petitioners t a ware of the counter-affidavit and an adjournment was being sought for filing a rejoinder af fidavit at the time of hearing. The Court has declined request for an adjournment to file a rejoinder affidavit after eight years, for no other u on that this matter itself has been pending for more than 11 years. The issue in the writ petition is simple. It is encroachment of a public path way. No record has been produced by the petitioners of any permission being granted by the State respondents or the Municipal Board to convert a residential accommodation into a commercial building an that also without any sanction to make shops oat of a residence. And of constructions on a public road, street, sidewalks or pathway, the Municipal Board would be incompetent to grant any sanction to build upon it as it would be against the law. No sanction was granted by the Municipal Board and it is for this reason perhaps that the perhaps that the petitioners have not been able to file a rejoinder affidavit. The apprehension of the petitioners is of their making. The petitioners have committed an act of illegality and they cannot expect the state respondents to con done the act of encroachment of a public road because if this were to be permitted as a attitude will be difficult of the State administration to lay down standards for maintaining the public roads and streets. The Court also can grant no indulgence that what the petitioners have done be condoned. Building activities which are against the law are illegalities which are incurable. [see K. R. Shenoy v. Udipi Municipality, AIR 1974 SC 2177]. The space upon which the petitioners have encroached is a public passage, on this no concession can be granted by any authority for occupation and should a building on a public street or a highway be permitted, it would be an illegality which can neither be condoned nor com pounded.
(3.) THE Supreme Court has as early as 30 years ago made the concept of the road very clear. THE object of the road the Supreme Court has declared is for no other purpose except passage. THE Supreme court even went to the extent of declaring that on a public road nothing may come whether public facilities, a library or even a statue of Mahatma Gandhi. [manglaur Municipality v. Mahadeoji, AIR 1965 SC 1147]. If this be the standard of planning public roads, streets and highways and of its maintenance, then the respondents are obliged not to permit any let or hindrance as encroachments on public roads. If the petitioners are seriously interested in retaining the originality of their house, which they inherited from their father, a house which they claim has stood where it has been since 1932, then they would be well advised to remove their illegal occupation as encroachments failing which the respondents will be within their rights to remove them by force. The petitioners have already had adequate notice on this.;