JANABAI versus ADDITIONAL COMMISSIONER AND OTHERS on 19 September 2018

[2018] 11 S.C.R. 699

JANABAI

v.

ADDITIONAL COMMISSIONER AND OTHERS

(Civil Appeal No. 6832 of 2018)

SEPTEMBER 19, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Maharashtra Village Panchayat Act, 1958:

s.14(1)(j-3) and 53 – Disqualification under s. 14(1)(j-3) –Whether attracted, when encroachment is by the husband andfather-in-law of the candidate and not by the candidate herself –Held: Legislative intent of s. 14(1)(j-3) is that encroachment has tobe viewed very strictly – The word ‘person’ in s.14(1)(j-3) shouldnot be construed narrowly – Therefore, when the candidate sharesan encroached property and there is continuance, he/she has to betreated as disqualified – Interpretation of Statutes – PurposiveInterpretation – Legislative Intendment.

Dismissing the appeal, the Court

HELD: 1. On a schematic appreciation of the MaharashtraVillage Panchayat Act, 1958, including Sections 10, 11 and 53thereof, it is quite vivid that the Members elected in Panchayatare duty bound to see to it that the obstruction or encroachmentupon any land, which is not a private property but Governmentland or a public property, should be removed and prosecutionshould be levied against the person creating such obstruction orencroachment. [Para 27] [717-D-E]

2. The word ‘person’ as used in Section 14(1)(j-3) of theAct is not to be so narrowly construed as a consequence of whichthe basic issue of “encroachment” in the context of disqualificationbecomes absolutely redundant. The legislative intendment is thatencroachment or unauthorized occupation has to be viewed verystrictly and Section 53, therefore, provides for imposition of dailyfine. It is the Panchayat that has been conferred with the powerto remove the encroachment. It is the statutory obligation on the

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Apart of the Panchayat to protect the interest of the propertiesbelonging to it. If a member remains in occupation of anencroached property, he/she has a conflict of interest. If aninterpretation is placed that it is the first encroacher or theencroachment made by the person alone who would suffer adisqualification, it would lead to an absurdity. Giving purposiveBinterpretation, it is held that when a person shares an encroachedproperty by residing there and there is continuance, he/she hasto be treated as disqualified. Such an interpretation subservesthe real warrant of the provision. [Para 29] [718-H; 719-A-D]

Sagar Pandurang Dhundare v. Keshav Aaba Patil andCothers (2018) 1 SCC 340 – overruled.Devidas Surwade v. Commissioner, Amravati 2012 SCCOnLine Bom 2126 – stood affirmed.

Parvatabai v. Commissioner, Nagpur 2015 SCC OnLineDBom 6141; Sandip Ganpatrao Bhadade v.Commissioner, Amravati 2016 SCC OnLine Bom 8991;Anita Laxman Junghare v. Commr., Amravati 2017 SCCOnLine Bom 9102 – approved.

Ganesh Arun Chavan v. State of Maharashtra 2012ESCC OnLine Bom 1393; Kanchan Shivaji Atigre v.Mahadev Baban Ranjagane 2012 SCC OnLine Bom1537; Abhiram Singh v. C.D. Commachen (2017) 2 SCC629 : [2017] 1 SCR 158; Jagdev Singh Sidhanti v.Pratap Singh Daulta [1964] 6 SCR 750; Hari Ram v.Jyoti Prasad and another (2011) 2 SCC 682 : [2011] 1F SCR 1076; Sankar Dastidar v. Banjula Dastidar(2006) 13 SCC 470 : [2006] 10 Suppl. SCR 101 –referred to.

Case Law Reference(2018) 1 SCC 340 overruledPara 5G

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6832of 2018

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From the Judgment and Order dated 03.05.2017 of the HighCourt of Judicature at Bombay, Nagpur Bench at Nagpur in Writ PetitionNo. 2742 of 2016

Hrishikesh Chitaley, M/s. Mitter & Mitter Co., NishantRamakantrao Katneshwarkar, Advs. for the appearing parties.

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The Judgment of the Court was delivered by

DIPAK MISRA, CJI 1. The singular question that emanatesfor consideration in this appeal is whether the forums below as well asthe High Court is justified in disqualifying the appellant for continuing asa member of the Gram Panchayat Kalamba (Mahali) on the ground thatthere has been encroachment upon the government land since 1981 byher father-in-law and husband and she is using the said land. There areconcurrent findings of fact that the father-in-law and the husband of theappellant have encroached upon the government land and despite notice,they have not vacated the same on one pretext or the other. As far asthese findings are concerned, we are not inclined to interfere with thesame as we are of the considered opinion that it is based on appositeanalysis of the materials on record.

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2. The pivotal issue that we have to address is whether the appellantincurs disqualification under the Maharashtra Village Panchayat Act,1958 (for short, ‘the Act’). Section 14 of the Act deals with the saiddisqualification. The relevant part of Sections 14(1) and 14(1)(j-3) readsas under:- G

“14. Disqualifications.- (1) No person shall be a member of aPanchayat continue as such, who- H

A(a) to (j-2)xxxxxxxxx

(j-3) has encroached upon the Government land or public property.”

3. The High Court, by the impugned order, has ruled:- “The learned Additional Commissioner has independently examinedthe material on record and has found that Gram Panchayat hadBissued notice in 2012 to father-in-law of the petitioner to removethe encroachment. However, it was not complied with and thenagain Gram Panchayat had sent another communication askingfor removal of encroachment to which Shri Kashiram Gaikwad-husband of the petitioner gave reply on 29[th] June, 2012, acceptingCthat there was an encroachment and justified. The petitioner hasnot been able to point out any perversity in the findings of factrecorded by the subordinate authorities. I see no reason to interferewith the impugned order”.

4. The order passed by the High Court is seriously criticised byDthe learned counsel for the appellant on two counts, namely, it is absolutelylaconic and further, on a proper interpretation of the provisions, by nostretch of imagination, it can be concluded that the appellant, as a person,has encroached upon the government land or public property.

5. Learned counsel for the appellant has placed heavy reliance onEa two-Judge Bench decision in Sagar Pandurang Dhundare v. KeshavAaba Patil and others[1]. In the said case, there was no allegation thatthe appellants were encroachers, inasmuch as their father/grand fatherhad encroached the property and they were only the beneficiaries of theencroachment and the beneficiary of an encroachment was treated asan encroacher by the authorities. The Division Bench of this CourtFreferred to the decisions of the High Court of Bombay. We think itappropriate to refer to the same to appreciate the scenario in entirety.

6. In Ganesh Arun Chavan v. State of Maharashtra[2], decidedon 24.09.2012, the petitioner therein had taken the stand that theencroachment was by his father and the house was constructed withGthe income of his father. The High Court, in the said factual matrix, heldas follows:- “10. There is nothing in the Act by which the concept of family orjoint residence could be imported as far as the subject of 1 (2018) 1 SCC 340H2 2012 SCC On Line Bom 1393

disqualification is concerned. The said provision contemplatesencroachment upon the Government land or public property by aperson, as in this case, who is a Member of the Panchayat.

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12. The Legislature has taken care and wherever the concept offamily or joint residence has to be applied, specific provision inthat behalf has been made either substantively or by way of anExplanation. For illustration, if the disqualification is under section14(1)(h) for failure to pay any tax or fee due to the panchayat orthe Zilla Parishad, then, by virtue of Explanation 2, what theLegislature has done is to provide that failure to pay any tax orfee due to the panchayat or Zilla Parishad by a member of HUFor by person belonging to a group, then, that shall be deemed todisqualify all members of such family or as the case may be ofthe group or unit. Equally in case of clause 14(1)(g) where aperson is said to be disqualified for having any interest either byhimself directly or indirectly through or his partner, any share orinterest in any work done by order of the panchayat or in anycontract with by or on behalf of or employment with or under thepanchayat, the Legislature by Explanation IA has clarified that aperson shall not be disqualified under clause (g) by reason of onlysuch person having a share or interest in any newspaper in whichany advertisement relating to the affairs of the panchayat isinserted; or having a share or interest in the occasional sale to thepanchayat of any article in which he regularly trades and havingan occasional share or interest in the letting out or on hire to thepanchayat of any article and equally having any share, interest inany lease for a period not exceeding ten years of any immovableproperty. Therefore, once the Legislature itself has clarified thatan act of the member alone incurs or invites disqualification, then,by interpretative process it will not be possible to include in section14(1)(j-3), the act of encroachment by members of his family andfor that purpose, disqualify the elected representative. It is the actof the person seeking to contest election or functioning as amember which alone will attract the provision in question.”

7. Reference has been made to the decision in Yallubai Maruti Kamble v. State of Maharashtra[3] wherein the petitioner was elected 3 WP No. 8497 of 2012, decided on 5.10.2012 (Bom)

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Aas the Sarpanch of the Gram Panchayat and the allegation against himwas that her husband and brother-in-law had made encroachment upongairan land and constructed a house thereon. The stand of the petitionerwas that the provision was not attracted and she could not be disqualified.Placing reliance on the decision in Ganesh Arun Chavan (supra), theCourt held thus:-B

“14. However, when it comes to encroachment upon GovernmentLand or Public Property, the Legislature is aware that ordinarilyand normally such act “is gaining upon the rights or possession ofanother”. That may be an individual or a concerted act. Thus, itenvisages acting either by himself or herself or jointly with others.CTherefore, the extent of participation and the role of a persontherein assumes importance and significance. It may amount toentering upon a land and remaining there, occupying and possessingit or construction thereon. Equally, it may mean not just possessinga land but a Structure, Building, House thereon or a part thereof.Hence, which act, when committed, by whom are all relevantDmatters together with the time factor, namely, prior to or afterPetitioner’s marriage. Hence, in its wisdom if the Legislaturedisqualifies a person or a member only if the act is committed byhim, then, it is not for this Court to probe it further. It is for theLegislature to take remedial steps if this is providing an escapeEroute to wrongdoers and lawbreakers. This Court cannot legislatenor can it step in to fill up an alleged lacuna or defect in law. It hasbeen recognized by the Hon’ble Supreme Court that if a matter,provision for which may have been desirable, has not been reallyprovided for by the Legislature, the omission or defect in law is ofthe nature which cannot be cured or supplied by a mode ofFconstruction which amounts to ironing out the creases. (See PetronEngg. Construction (P) Ltd. v. CBDT[4]). True it is that thecharacter and conduct of the representative of the people shouldbe exemplary and setting a high standard. He will not be a truerepresentative of the people if he indulges in acts which areGimmoral, illegal and wrongful but the grievance should be raisedbefore some other forum.”

8. The two-Judge Bench has also dwelled upon the authority inKanchan Shivaji Atigre v. Mahadev Baban Ranjagane[5], wherein 4 1989 Supp (2) SCC 7H5 2012 SCC On Line Bom 1537

the disqualification was on the ground of encroachment. The High Courthas opined that as per the provision, it is the act of the person who iselected and that alone is to be considered. The High Court, in thatcontext, held thus:- “13. … Therefore, it is the act of the person contesting the poll asa candidate or the act of elected member himself as the case maybe, that (sic) would disqualify them. It cannot be that somebodyelse commits an act of encroachment even if he is a Member ofthe same family but the consequences are visited on an electedrepresentative or a person desiring to contest the election to GramPanchayat. Even if such person is a Member of that family bymarriage or otherwise, still, it will not be permissible to disqualifyhim or her as that would create a vacancy in the Gram Panchayat.It would not be possible to give broad based, wide andcomprehensive representation of the public in a unit of local selfgovernment. The Gram Panchayat is envisaged to be a unit oflocal self-government in terms of Part IX of the Constitution ofIndia. Therefore, the provisions with regard to disqualification willhave to be construed in a manner so as not to create a vacuum ormake it impossible for the villagers to choose their representativeand constitute a Gram Panchayat. That will then create difficultiesand obstacles in constituting a Panchayat. If that is equally notintended by the Statute in question, then, by interpretative process,I cannot do so and import or insert something in the provision,which is not there.”

9. In Devidas Surwade v. Commissioner, Amravati[6], a DivisionBench of the High Court took a different view. It ruled that theencroachment by a member of the family of the elected person wouldtantamount to encroachment by the elected candidate. The reasoningof the said decision is as follows:- “6. We find that there is a definite object in making the saidamendment to the provisions of disqualification and the object isthat one, who encroaches upon the Government land or theGovernment property, cannot make any claim to represent thepeople by becoming an elected, member of the Gram Panchayat.The term person in the said amended provision has to be interpretedto mean the legal heirs of such person, who has encroached and 6 2012 SCC On Line Bom 2126

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Acontinues to occupy the Government land or the Governmentproperty, his agent, assignee or transferee or as the case may be.If such an interpretation is not made in the said provision, theresult would be absurd in the sense that the Government landwould continue to remain encroached and the legal heirs or theassignees or the transferees remaining on such encroachedBgovernment land shall claim the right to get elected as a memberof democratically elected body.In no case our conscious permitssuch type of interpretation to defeat the very object of the BombayVillage Panchayats (Amendment) Act, 2006.”

[Emphasis added]

C10. It is worthy to note here that a similar issue came up forconsideration before a Division Bench in Parvatabai v. Commissioner,Nagpur[7]. A contention was advanced that the house in question wasstanding in the name of the father of the petitioner and she could nothave been disqualified under Section 14(1)(j-3) of the Act. An argumentwas advanced that the encroachment should have been made by theDperson elected so as to attract disqualification and not encroachmentmade by member of the family. The learned single Judge, placing relianceon the Division Bench decision in Devidas Surwade (supra), came tohold that the contention raised by the petitioner was not acceptable.

11. Be it noted, a special leave petition[8] challenging the aforesaidEorder was dismissed by this Court stating thus:- “We do not find any merit in this petition. The special leave petitionis, accordingly, dismissed. Pending application, if any, standsdisposed of. Stay granted by this Court on 15-10-2015, standsvacated.”FWith the aforesaid expression of law, the controversy should havebeen put to rest but the fate of the proposition, as it seems, rose like aphoenix.

12. In Sandip Ganpatrao Bhadade v. Commissioner,Amravati[9], the authorities below had held that the elected candidateGwas an encroacher being in occupation of the government land. TheHigh Court, elaborating the scheme of the Act and the purpose of theprovision, ruled thus:- 7 2015 SCC On Line Bom 6141

8 Parvatabai @ Shobha Kakde v. Additional Commissioner, SLP (C) No. 29255 of 2015, order dated 4.1.2016H9 2016 SCC On Line Bom 8991

“16. In view of the aforesaid meaning of the terminologies “toencroach”, “encroachment”, “encroacher” and “encroached”,whoever resides in the property or any portion thereof, which isan encroachment upon the Government land or public property,can be said to have “encroached” upon it and becomes an“encroacher”. Whether such an encroachment is jointly with othersand/or individually, either at one time or at different times remainshardly of any significance as he becomes liable to be removedand prosecuted under Section 53 of the said Act. Whether a personhas become liable to be removed and/or prosecuted under Section53 of the said Act from the Government land or public property,becomes a real test of attracting disqualification under Section14(1)(j-3) of the said Act. If the answer is in the affirmative, thedisqualification is incurred.

17. In view of the aforesaid position, the provision of Section 14(1)(j-3) of the said Act is attracted even in a case where a member ofa Panchayat resides in the property or any portion thereof, whichis an encroachment upon the Government land or public property.The question as to whether any other person or a member of afamily has already made an encroachment, loses its significanceand as soon as a member or proposed member joins such act, hecannot escape from the clutches of disqualification under Section14(1)(j-3) of the said Act. The question framed is answeredaccordingly.

18. If an intention of the Legislature is to prevent an encroachmentupon the Government land or public property by a person, who isdeemed to be a “public servant” under Section 184 entitled toenjoy all privileges attached to it under Section 180 of the saidAct, can it be said that such an intention of the Legislature bedefeated by adopting circuitous way of occupying the property,which is an encroachment on the Government land or publicproperty. The answer would obviously be in the negative, for twomain reasons - (i) the act, which is prohibited directly, cannot bepromoted or encouraged indirectly to defeat the object and purposeof such prohibition, and (ii) it would amount to promoting orencouraging the conflicting interest, necessarily resulting in thedisqualification under Section 14(1)(j-3) of the said Act.”

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A13. In the same year, that is, 2017, the High Court in Anita LaxmanJunghare v. Commr., Amravati[10]ruled thus:- “6. … For attracting disqualification under section 14(1)(j-3), in acase like this, the crucial question to be answered is: Does thelegal representative or member of the original encroacher’s familyBcontinue to occupy the government land or property. If he does,he attracts the disqualification under Section 14(1)(j-3). It is notan answer then for such person that the original encroachmentwas by his predecessor or family member and not by himself. Ifthat encroachment is continued by him, he attracts thedisqualification. That was the case in Devidas Surwade. TheCoriginal encroachment may have been by the petitioner’s father,but after the death of his father, he continued to occupy theproperty and thereby attracted the disqualification of section 14(1)(j-3). On the other hand, in Kanchan’s case, it was the petitioner’sfather-in-law, who was the encroacher; she had nothing to doDwith it. It was not the case of the State that she continued tooccupy the property either as a legal heir of her father-in-law oras a member of her husband’s family. The emphasis is really onthe continued encroachment and not so much on the original actof encroachment. Encroachment, after all, is not a one-time act.It is a continuous act. If someone’s encroachment is continued byEanother, that other is equally an encroacher, as much as the originalencroacher.”

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14. Analysing the concept of removal from an elected post, thetwo-Judge Bench of this Court in Sagar Pandurang Dhundare (supra)held thus:- F

“11. Thus, under the statutory scheme, an encroacher is liable tobe evicted by the Panchayat and if the Panchayat fails, theCollector has to take action. The encroacher is also liable to beprosecuted. Encroachment is certainly to be condemned, theencroacher evicted and punished. Desirably, there should not beGa member in the Panchayat with conflicting interest. But once aperson is elected by the people, he can be unseated only in themanner provided under law. Even with the best of intention, ifthere is no statutory expression of the intention, the court cannot 10 2017 SCC OnLine Bom 9102H

10 2017 SCC OnLine Bom 9102H

supply words for the sake of achieving the alleged intention of thelaw maker. It is entirely within the realm of the law maker toexpress clearly what they intend. No doubt, there is a limited extentto which the court can interpret a provision so as to achieve thelegislative intent. That is in a situation where such an interpretationis permissible, otherwise feasible, when it is absolutely necessary,and where the intention is clear but the words used are eitherinadequate or ambiguous. That is not the situation here. In theAct, wherever the law-makers wanted to specify family, theyhave done so. As noted by some of the judgments of the HighCourt, in Explanation 2 for Section 14(1)(h), the failure to pay anytax or fee due to the Panchayat or Zila Parishad by a member ofa Hindu Undivided Family (HUF) or by a person belonging to agroup has been expressly mentioned as a disqualification on othersin the family or group. It is, therefore, evident that when the intentof the legislature was to disqualify a member for the act of hisfamily, it has specifically done so. The Court, in the process ofinterpretation, cannot lay down what is desirable in its own opinion,if from the words used, the legislative intention is otherwisediscernible.”

15. Be it noted, reference was made to Abhiram Singh v. C.D.Commachen[11], wherein the Constitution Bench dealt with theinterpretation of Section 123 of the Representation of the People Act,1951 (for short, ‘the 1951 Act’). The conflict that was sought to beresolved related to Section 123(3) of the 1951 Act that had been dealtwith by another Constitution Bench in Jagdev Singh Sidhanti v. PratapSingh Daulta[12]wherein the Court had held thus:- “25. … The corrupt practice defined by clause (3) of Section 123is committed when an appeal is made either to vote or refrainfrom voting on the ground of a candidate’s language. It is theappeal to the electorate on a ground personal to the candidaterelating to his language which attracts the ban of Section 100read with Section 123(3). Therefore it is only when the electorsare asked to vote or not to vote because of the particular languageof the candidate that a corrupt practice may be deemed to becommitted. Where, however for conservation of language of the 11 (2017) 2 SCC 629

12 (1964) 6 SCR 750 = AIR 1965 SC 183

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Aelectorate appeals are made to the electorate and promises aregiven that steps would be taken to conserve that language, it willnot amount to a corrupt practice.”

16. Various other decisions were also referred to in AbhiramSingh (supra). Analysing certain aspects, namely, the legislative history,Bthe provisions contained in Section 153-A IPC, amendment to sub-section(3) of Section 123 of the 1951 Act, literal versus purposive interpretationand the constitutional validity of Section 123(3) of the 1951 Act, MadanB. Lokur, J., held as under:- “50.1. The provisions of sub-section (3) of Section 123 of theCRepresentation of the People Act, 1951 are required to be readand appreciated in the context of simultaneous andcontemporaneous amendments inserting sub-section (3A) inSection 123 of the Act and inserting Section 153A in the IndianPenal Code.

D50.2. So read together, and for maintaining the purity of the electoralprocess and not vitiating it, sub-section (3) of Section 123 of theRepresentation of the People Act, 1951 must be given a broadand purposive interpretation thereby bringing within the sweep ofa corrupt practice any appeal made to an elector by a candidateor his agent or by any other person with the consent of a candidateEor his election agent to vote or refrain from voting for thefurtherance of the prospects of the election of that candidate orfor prejudicially affecting the election of any candidate on theground of the religion, race, caste, community or language of (i)any candidate or (ii) his agent or (iii) any other person making theFappeal with the consent of the candidate or (iv) the elector.”17. T.S. Thakur, C.J., concurred with the view expressed byMadan B. Lokur, J. and did not agree with the view expressed by D.Y.Chandrachud, J. The learned Chief Justice in his concurring opinionstated:- G“There is thus ample authority for the proposition that whileinterpreting a legislative provision, the Courts must remain aliveto the constitutional provisions and ethos and that interpretationsthat are in tune with such provisions and ethos ought to be preferredover others. Applying that principle to the case at hand, aninterpretation that will have the effect of removing the religion orH

religious considerations from the secular character of the State orstate activity ought to be preferred over an interpretation whichmay allow such considerations to enter, effect or influence suchactivities. Electoral processes are doubtless secular activities ofthe State. Religion can have no place in such activities for religionis a matter personal to the individual with which neither the Statenor any other individual has anything to do. The relationshipbetween man and God and the means which humans adopt toconnect with the almighty are matters of individual preferencesand choices. The State is under an obligation to allow completefreedom for practicing, professing and propagating religious faithto which a citizen belongs in terms of Article 25 of the Constitutionof India but the freedom so guaranteed has nothing to do withsecular activities which the State undertakes. The State can andindeed has in terms of Section 123(3) forbidden interference ofreligions and religious beliefs with secular activity of elections tolegislative bodies.”

18. S.A. Bobde, J., in his concurring opinion, expressed thus:-“It is settled law that while interpreting statutes, wherever thelanguage is clear, the intention of the legislature must be gatheredfrom the language used and support from extraneous sourcesshould be avoided. I am of the view that the language that is usedin Section 123(3) of the Act intends to include the voter and thepronoun “his” refers to the voter in addition to the candidate, hiselection agent etc. Also because the intendment and the purposeof the statute is to prevent an appeal to votes on the ground ofreligion. I consider it an unreasonable shrinkage to hold that onlyan appeal referring to the religion of the candidate who made theappeal is prohibited and not an appeal which refers to religion ofthe voter. It is quite conceivable that a candidate makes an appealon the ground of religion but leaves out any reference to his religionand only refers to religion of the voter. For example, where acandidate or his election agent, appeals to a voter highlighting thatthe opposing candidate does not belong to a particular religion, orcaste or does not speak a language, thus emphasizing the distinctionbetween the audience’s (intended voters) religion, caste orlanguage, without referring to the candidate on whose behalf theappeal is made, and who may conform to the audience’s religion, AB

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Acaste or speak their language, the provision is attracted. Theinterpretation that I suggest therefore, is wholesome and leavesno scope for any sectarian caste or language based appeal and isbest suited to bring out the intendment of the provision. There isno doubt that the section on textual and contextual interpretationproscribes a reference to either.”B

19. This being the majority opinion, we have focussed on the same.The two-Judge Bench in Sagar Pandurang Dhundare’s case hasdistinguished the said decision by holding thus:- “Abhiram Singh v. C.D. Commachen (D) By Lrs. and others isCa recent Constitution Bench judgment of this Court dealing withcorrupt practices. Appeal on the grounds of religion, race, caste,community, language, etc. of the candidates and the electorate,and canvassing votes accordingly, has been held to be a corruptpractice. The Court, to hold so, adopted a purposive interpretativeprocess declaring that the Representation of the People Act, 1951Dshould be interpreted in that context to be electorate centric ratherthan candidate centric. That is not the situation in the presentcase. The appellants were elected by the people to the Panchayat.There is no case that they are original encroachers on the publicproperty. And this is not the case where the alleged act ofEencroachment has influenced the will of the people in which case,going by Abhiram Singh (supra), the court would have beenjustified in attempting a purposive interpretation to achieve alaudable object.”

20. It also distinguished the decision in Hari Ram v. Jyoti PrasadFand another[13]. In the said decision, the issue that arose for considerationwas whether the defendants had made illegal/unauthorized constructionover the public street by way of illegal encroachment. The Courtaddressed the issue relating to limitation and referred to Section 22 ofthe Limitation Act, 1963, that deals with continuing breaches and torts.In this context, the Court, placing reliance on Sankar Dastidar v.GBanjula Dastidar[14], held that the suit was not barred by limitation and,ultimately, did not find any substance in the appeal and dismissed thesame with costs and directed the appellant to remove the unauthorizedencroachment within sixty days from the date of the judgment. The 13 (2011) 2 SCC 682H14 (2006) 13 SCC 470

two-Judge Bench, while distinguishing the said decision, opined that itdid not relate to interpretation of a statute pertaining to disqualification.Frankly speaking, the said judgment has nothing to do with interpretation.

21. Proceeding further, the Court in Sagar Pandurang Dhundareopined that:-

“14. As we have already noted above, the duty of the court is notto lay down what is desirable in its own opinion. Its duty is tostate what is discernible from the expressions used in the statute.The court can also traverse to an extent to see what is decipherablebut not to the extent of laying down something desirable accordingto the court if the legislative intent is otherwise not discernible.What is desirable is the jurisdiction of the law-maker and onlywhat is discernible is that of the court.”

And again:-

“16. In case, the appellants suffer from any of the three situationsindicated above, they shall be unseated. The rest is for the Stateto clarify by way of a proper amendment in case they really andtruly want to achieve the laudable object of preventing personswith conflicting interest from becoming or continuing as membersof the Panchayat. The extent of conflicting interest is also for theLegislature to specify.”

22. If we follow the principle stated in Sagar PandurangDhundare, indubitably the appeal has to be allowed and the impugnedjudgment and order are to be set aside. It is apt to mention here that inSagar Pandurang Dhundare, there has been reference to Section53(1), (2) and (2-A). For the sake of completeness, it is profitable toreproduce the said provision:- “53. Obstructions and encroachments upon public streetsand open sites.-(1) Whoever, within the limits of the gaothanarea of the village,—

(a) builds or sets up any wall, or any fence, rail, post, stall, verandah,platform, plinth, step or structure or thing or any otherencroachment or obstruction, or (b) deposits, or causes to be placed or deposited, any box, bale,package or merchandise or any other thing, or A

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(c) without written permission given to the owner or occupier of abuilding by a Panchayat, puts up, so as to protect from an upperstorey thereof, any verandah, balcony, room or other structure orthing.

in or over any public street or place, or in or over upon any openBdrains, gutter, sewer or aqueduct in such street or place, orcontravences any conditions, subject to which any permission asaforesaid is given or the provisions of any byelaw made in relationto any such projections or cultivates or makes any unauthoriseduse of any grazing land, not being private property, shall, onconviction, be punished with fine, which may extend to fifty rupeesCand with further fine which may extend to five rupees for everyday on which such obstruction, deposit, projection, cultivation orunauthorised use continues after the date of first conviction forsuch offence.

(2) The Panchayat shall have power to remove any suchDobstruction or encroachment and to remove any cropunauthorisedly cultivated on grazing land or any other land, notbeing private property, and shall have the like power to removeany unauthorised obstruction or encroachment of the like naturein any open site not being private property, whether such site isEvested in the Panchayat or not, provided that if the site be vestedin Government the permission of the Collector or any officerauthorised by him in this behalf shall have been first obtained.The expense of such removal shall be paid by the person who hascaused the said obstruction or encroachment and shall berecoverable in the same manner as an amount claimed on accountFof any tax recoverable under Chapter IX.

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It shall be the duty of the panchayat to remove such obstructionor encroachment immediately after it is noticed or brought to itsnotice, by following the procedure mentioned above.

(2-A) If any Panchayat fails to take action under sub-section (2),the Collector suo motu or on an application made in this behalf,may take action as provided in that sub-section, and submit thereport thereof to the Commissioner. The expense of such removalshall be paid by the person who has caused the said obstruction or G

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encroachment or unauthorised cultivation of the crop and shall berecoverable from such person as an arrear of land revenue.

(3) The power under sub-section (2) or sub-section (2A) may beexercised in respect of any obstruction, encroachment orunathorised cultivation of any crop referred to therein whether ornot such obstruction, encroachment or unauthorised cultivation ofany crop has been made before or after the village is declared assuch under this Act, or before or after the property is vested inthe Panchayat.

(3-A) Any person aggrieved by the exercise of the powers by thepanchayat under sub-section (2) or (3) may, within thirty daysfrom the date of exercise of such powers, appeal to theCommissioner and the Commissioner, after making such enquiryas he thinks necessary shall pass such orders as he deemsnecessary after giving such person a reasonable opportunity ofbeing heard.

(3-B) Any order made by the Collector in exercise of powersconferred on him under sub-section (2A) or (3) shall be subject toappeal and revision in accordance with the provisions of theMaharashtra Land Revenue Code, 1966 (Mah. XLI of 1960).

(4) Whoever, not being duly authorised in that behalf removesearth, sand or other material from, or makes any encroachment inor upon an open site which is not private property, shall, onconviction, be punished with fine which may extend to fifty rupees,and in the case of an encroachment, with further fine, which mayextend to five rupees for every day on which the encroachmentcontinues after the date of first conviction.”

23. Interpreting the said provision, the two-Judge Bench has opined “15. From the Statements of Objects and Reasons for theamendment introduced in 2006, it is seen that the purpose was “todisqualify the person who has encroached upon the Governmentland or public property, from becoming member of the Panchayator to continue as such”. The person, who has encroached uponthe Government land or public property, as the law now stands, AB

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Afor the purpose of disqualification, can only be the person, whohas actually, for the first time, made the encroachment. However,in view of Section 53(1) of the Act, in case a member has beenpunished for encroachment, he shall be dismissed. Similarly, amember against whom there is a final order of eviction underSection 53(2) or (2A), shall also not be entitled to continue as aBmember.”

24. As we understand from the above paragraph, the two-JudgeBench has been guided by the word ‘person’ as used in Section 14(1)and further influenced by the language employed in Section 53. Thatapart, the analysis made by the two-Judge Bench, as we notice, hasCgiven a restricted meaning to the word ‘person’ who has encroachedupon the government land or public land. It has also ruled that such aperson is one who has actually for the first time encroached upon thegovernment or public land. In Devidas Surwade (supra), the DivisionBench of the Bombay High Court, placing reliance on the Statement ofDObjects and Reasons and laying stress on the word ‘person’, noted thatthe legal heirs of an encroacher who continue to occupy the governmentland or government property are to be treated as encroachers. It hasbeen held that if such an interpretation is not adopted, the result wouldbe absurd, for the government land would continue to remain encroachedand the legal heirs or the assignees or the transferees remaining on theEencroached government land shall claim the right to get elected as amember of a democratically elected body. According to the DivisionBench of the Bombay High Court, such an interpretation would defeatthe very object of the Bombay Village Panchayat (Amendment) Act,2006.F

25. First, we are obliged to remind ourselves that the viewexpressed by the Bombay High Court in Devidas Surwade (supra) hasbeen affirmed by this Court in Special Leave Petition. It is worth notinghere that this Court, while dismissing the special leave petition, hadobserved that it had not found any merit in the petition. Whether such anGorder would tantamount to be a binding precedent or not is another matter.

26. We may hasten to add here that we do not intend to take thesaid route. We think it appropriate to analyse the provision, understandthe purpose and the contextual relevance and also appreciate the natureof the provision in the backdrop of the democratic set-up at the grass root level. Having said that, we shall now analyse the statutory scheme.Section 53 that occurs in Chapter III deals with obstruction andencroachment upon public streets and upon sites. It confers power onthe Panchayat to remove such obstruction or encroachment or to removeany unauthorizedly cultivated grazing land or any other land. That apart,it also empowers the Panchayat to remove any unauthorized obstructionor encroachment of the like nature in or upon a site not being privateproperty. The distinction has been made between private property andpublic property. It has also protected the property that vests with thePanchayat. If the Panchayat does not carry out its responsibility ofremoving the obstruction or encroachment after it has been brought toits notice in accordance with the procedure prescribed therein, the higherauthorities, namely, the Collector and the Commissioner, have beenconferred with the power to cause removal. There is a provision forimposition of fine for commission of offence.

27. On a schematic appreciation of the Act including Sections 10,11 and 53, it is quite vivid that the Members elected in Panchayat areduty bound to see to it that the obstruction or encroachment upon anyland, which is not a private property but Government land or a publicproperty, should be removed and prosecution should be levied againstthe person creating such obstruction or encroachment.

28. Section 184 of the Act provides that every Member of thePanchayat and every officer and servant maintained by or being employedunder the Panchayat shall be deemed to be a public servant for thepurpose of Section 21 of the Indian Penal Code. Analysing the variousprovisions, the learned Single Judge in Sandip Ganpatrao Bhadade(supra) has opined:- “11. It is in the background of the aforesaid provisions of law, thatthe provisions of qualifications and disqualifications to vote, contestthe election and being continued as a member of Panchayat, arerequired to be considered. Section 13 of the said Act deals withthe persons qualified to vote and be elected. The persons incurringany disqualification under the provisions of the said Act are neitherqualified to vote nor to be elected as a member of a Panchayat.Section 14 deals with different kinds of disqualifications, asstipulated in clauses (a) to (k) under sub-section (1), which operateagainst two kinds of persons – (i) who proposes to become a A

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Amember of a Panchayat, and (ii) who has become a member of aPanchayat. If a person has incurred any one or moredisqualifications, then he is prohibited from becoming a memberof a Panchayat, and if becomes a member of a Panchayat, thenhis is not entitled to continue as such. The disqualification underSection 14 is in respect of the acts, events, deeds, misdeeds,Btransactions, etc, which have not been done, happened or occurredbefore entering into the office as a member of a Panchayat aswell as those which take place during continuance as a memberof a Panchayat.”

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“13. The very object of introducing the provision of disqualificationunder Section 14 (1) (j-3) of the said Act is to avoid the conflict ofinterest by prohibiting the persons, who are the encroachers uponthe Government land or public property to get elected or continuedas a member of the Panchayat, which is democratically electedDbody of the villagers. It is beyond comprehension to assume thata person under statutory obligation or a duty to protect theGovernment land or public property from encroachment, commitsan act of such encroachment. To permit person, who proposes tobecome a member or becomes a member of the Panchayat to beEthe encroacher upon the Government land to public property, wouldbe anathematic, acting in breach of statutory duty, exposing himselfto prosecution under sub-sections (1) and (4) of Section 53,resulting ultimately in losing the protection under Section 180 readwith Section 184 of the said Act. It is in this context that the textof disqualification under Section 14(1)(j-3) of the said Act isFrequired to be analyzed and interpreted.”

In the case of Devidas Surwade (supra), it has been clearly stated,as noticed earlier, that the term ‘person’ has to include the legal heirs, ifany, of the encroacher who continue to occupy the government land.Emphasis has been laid on encroachment and continued encroachment.GAfter the said Division Bench judgment, number of learned Single Judgeshave adopted a different approach without noticing the judgment whichis against judicial discipline.

29. We may note here with profit that the word ‘person’ as usedin Section 14 (1) (j-3) is not to be so narrowly construed as a consequence H

of which the basic issue of “encroachment” in the context ofdisqualification becomes absolutely redundant. The legislative intendment,as we perceive, is that encroachment or unauthorized occupation has toviewed very strictly and Section 53, therefore, provides for imposition ofdaily fine. It is also to be borne in mind that it is the Panchayat that hasbeen conferred with the power to remove the encroachment. It is thestatutory obligation on the part of the Panchayat to protect the interestof the properties belonging to it. If a member remains in occupation ofan encroached property, he/she has a conflict of interest. If aninterpretation is placed that it is the first encroacher or the encroachmentmade by the person alone who would suffer a disqualification, it wouldlead to an absurdity. The concept of purposive interpretation would impelus to hold that when a person shares an encroached property by residingthere and there is continuance, he/she has to be treated as disqualified.Such an interpretation subserves the real warrant of the provision. Thusanalysed, we are of the view that the decision in Sagar PandurangDhundare (supra) does not lay down the correct position of law and itis, accordingly, overruled.

30. In view of the aforesaid analysis, we do not find any substancein the appeal and the same stands dismissed accordingly. There shall beno order as to costs.

Kalpana K. Tripathy

Appeal dismissed.

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