1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6832 OF 2018

(Arising out of S.L.P. (Civil) No. 24212 of 2017)

Janabai …Appellant

VERSUS

Additional Commissioner and Others …Respondent(s)

J U D G M E N T

Dipak Misra, CJI

The singular question that emanates for consideration in this

appeal is whether the forums below as well as the High Court is justified

in disqualifying the appellant for continuing as a member of the Gram

Panchayat Kalamba (Mahali) on the ground that there has been

encroachment upon the government land since 1981 by her

father-in-law and husband and she is using the said land. There are

concurrent findings of fact that the father-in-law and the husband of the

appellant have encroached upon the government land and despite

2

notice, they have not vacated the same on one pretext or the other. As

far as these findings are concerned, we are not inclined to interfere with

the same as we are of the considered opinion that it is based on

apposite analysis of the materials on record.

2. The pivotal issue that we have to address is whether the appellant

incurs disqualification under the Maharashtra Village Panchayat Act,

1958 (for short, ‗the Act‘). Section 14 of the Act deals with the said

disqualification. The relevant part of Sections 14(1) and 14(1)(j-3) reads

as under:-

―14. Disqualifications.- (1) No person shall be a

member of a Panchayat continue as such, who-

(a) to (j-2) xxx xxx xxx

(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

examined the material on record and has found that Gram

Panchayat had issued notice in 2012 to father-in-law of

the petitioner to remove the encroachment. However, it

was not complied with and then again Gram Panchayat

had sent another communication asking for removal of

encroachment to which Shri Kashiram Gaikwad-husband

of the petitioner gave reply on 29

th

June, 2012, accepting

that there was an encroachment and justified. The

petitioner has not been able to point out any perversity in

the findings of fact recorded by the subordinate

authorities. I see no reason to interfere with the

impugned order‖.

3

4. The order passed by the High Court is seriously criticised by the

learned counsel for the appellant on two counts, namely, it is absolutely

laconic and further, on a proper interpretation of the provisions, by no

stretch 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 on a

two-Judge Bench decision in Sagar Pandurang Dhundare v. Keshav

Aaba Patil and others

1

. In the said case, there was no allegation that

the appellants were encroachers, inasmuch as their father/grand father

had encroached the property and they were only the beneficiaries of the

encroachment and the beneficiary of an encroachment was treated as

an encroacher by the authorities. The Division Bench of this Court

referred to the decisions of the High Court of Bombay. We think it

appropriate to refer to the same to appreciate the scenario in entirety.

6. In Ganesh Arun Chavan v. State of Maharashtra

2

, decided on

24.09.2012, the petitioner therein had taken the stand that the

encroachment was by his father and the house was constructed with the

income of his father. The High Court, in the said factual matrix, held as

follows:-

1 (2018) 1 SCC 340

2 2012 SCC OnLine Bom 1393

4

―10. There is nothing in the Act by which the concept of

family or joint residence could be imported as far as the

subject of disqualification is concerned. The said

provision contemplates encroachment upon the

Government land or public property by a person, as in this

case, who is a Member of the Panchayat.

x x x x x

12. The Legislature has taken care and wherever the

concept of family or joint residence has to be applied,

specific provision in that behalf has been made either

substantively or by way of an Explanation. For illustration,

if the disqualification is under section 14(1)(h) for failure to

pay any tax or fee due to the panchayat or the Zilla

Parishad, then, by virtue of Explanation 2, what the

Legislature has done is to provide that failure to pay any

tax or fee due to the panchayat or Zilla Parishad by a

member of HUF or by person belonging to a group, then,

that shall be deemed to disqualify all members of such

family or as the case may be of the group or unit. Equally

in case of clause 14(1)(g) where a person is said to be

disqualified for having any interest either by himself

directly or indirectly through or his partner, any share or

interest in any work done by order of the panchayat or in

any contract with by or on behalf of or employment with or

under the panchayat, the Legislature by Explanation IA

has clarified that a person shall not be disqualified under

clause (g) by reason of only such person having a share

or interest in any newspaper in which any advertisement

relating to the affairs of the panchayat is inserted; or

having a share or interest in the occasional sale to the

panchayat of any article in which he regularly trades and

having an occasional share or interest in the letting out or

on hire to the panchayat of any article and equally having

any share, interest in any lease for a period not exceeding

ten years of any immovable property. Therefore, once the

Legislature itself has clarified that an act of the member

alone incurs or invites disqualification, then, by

interpretative process it will not be possible to include in

section 14(1)(j-3), the act of encroachment by members

of his family and for that purpose, disqualify the elected

5

representative. It is the act of the person seeking to

contest election or functioning as a member 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

as the Sarpanch of the Gram Panchayat and the allegation against him

was that her husband and brother-in-law had made encroachment upon

gairan land and constructed a house thereon. The stand of the petitioner

was that the provision was not attracted and she could not be

disqualified. Placing reliance on the decision in Ganesh Arun Chavan

(supra), the Court held thus:-

―14. However, when it comes to encroachment upon

Government Land or Public Property, the Legislature is

aware that ordinarily and normally such act "is gaining

upon the rights or possession of another". That may be an

individual or a concerted act. Thus, it envisages acting

either by himself or herself or jointly with others.

Therefore, the extent of participation and the role of a

person therein assumes importance and significance. It

may amount to entering upon a land and remaining there,

occupying and possessing it or construction thereon.

Equally, it may mean not just possessing a land but a

Structure, Building, House thereon or a part thereof.

Hence, which act, when committed, by whom are all

relevant matters together with the time factor, namely,

prior to or after Petitioner's marriage. Hence, in its wisdom

if the Legislature disqualifies a person or a member only if

the act is committed by him, then, it is not for this Court to

probe it further. It is for the Legislature to take remedial

steps if this is providing an escape route to wrongdoers

and lawbreakers. This Court cannot legislate nor can it

3 WP No. 8497 of 2012, decided on 5.10.2012 (Bom)

6

step in to fill up an alleged lacuna or defect in law. It has

been recognized by the Hon'ble Supreme Court that if a

matter, provision for which may have been desirable, has

not been really provided for by the Legislature, the

omission or defect in law is of the nature which cannot be

cured or supplied by a mode of construction which

amounts to ironing out the creases. (See Petron Engg.

Construction (P) Ltd. v. CBDT

4

). True it is that the

character and conduct of the representative of the people

should be exemplary and setting a high standard. He will

not be a true representative of the people if he indulges in

acts which are immoral, illegal and wrongful but the

grievance should be raised before some other forum.‖

8. The two-Judge Bench has also dwelled upon the authority in

Kanchan Shivaji Atigre v. Mahadev Baban Ranjagane

5

, wherein the

disqualification was on the ground of encroachment. The High Court

has opined that as per the provision, it is the act of the person who is

elected and that alone is to be considered. The High Court, in that

context, held thus:-

―13. … Therefore, it is the act of the person contesting the

poll as a candidate or the act of elected member himself

as the case may be, that (sic) would disqualify them. It

cannot be that somebody else commits an act of

encroachment even if he is a Member of the same family

but the consequences are visited on an elected

representative or a person desiring to contest the election

to Gram Panchayat. Even if such person is a Member of

that family by marriage or otherwise, still, it will not be

permissible to disqualify him or her as that would create a

vacancy in the Gram Panchayat. It would not be possible

to give broad based, wide and comprehensive

representation of the public in a unit of local self

4

1989 Supp (2) SCC 7

5 2012 SCC OnLine Bom 1537

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government. The Gram Panchayat is envisaged to be a

unit of local self-government in terms of Part IX of the

Constitution of India. Therefore, the provisions with regard

to disqualification will have to be construed in a manner

so as not to create a vacuum or make it impossible for the

villagers to choose their representative and constitute a

Gram Panchayat. That will then create difficulties and

obstacles in constituting a Panchayat. If that is equally not

intended 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 Division

Bench of the High Court took a different view. It ruled that the

encroachment by a member of the family of the elected person would

tantamount to encroachment by the elected candidate. The reasoning of

the said decision is as follows:-

―6. We find that there is a definite object in making the

said amendment to the provisions of disqualification and

the object is that one, who encroaches upon the

Government land or the Government property, cannot

make any claim to represent the people by becoming an

elected, member of the Gram Panchayat. The term

person in the said amended provision has to be

interpreted to mean the legal heirs of such person, who

has encroached and continues to occupy the Government

land or the Government property, his agent, assignee or

transferee or as the case may be. If such an interpretation

is not made in the said provision, the result would be

absurd in the sense that the Government land would

continue to remain encroached and the legal heirs or the

assignees or the transferees remaining on such

encroached government land shall claim the right to get

elected as a member of democratically elected body. In

no case our conscious permits such type of interpretation

6 2012 SCC OnLine Bom 2126

8

to defeat the very object of the Bombay Village

Panchayats (Amendment) Act, 2006.‖

[Emphasis added]

10. It is worthy to note here that a similar issue came up for

consideration before a Division Bench in Parvatabai v. Commissioner,

Nagpur

7

. A contention was advanced that the house in question was

standing in the name of the father of the petitioner and she could not

have been disqualified under Section 14(1)(j-3) of the Act. An argument

was advanced that the encroachment should have been made by the

person elected so as to attract disqualification and not encroachment

made by member of the family. The learned single Judge, placing

reliance on the Division Bench decision in Devidas Surwade (supra),

came to hold that the contention raised by the petitioner was not

acceptable.

11. Be it noted, a special leave petition

8

challenging the aforesaid

order was dismissed by this Court stating thus:-

―We do not find any merit in this petition. The special

leave petition is, accordingly, dismissed. Pending

application, if any, stands disposed of. Stay granted by

this Court on 15-10-2015, stands vacated.‖

7 2015 SCC OnLine Bom 6141

8 Parvatabai @ Shobha Kakde v. Additional Commissioner, SLP (C) No. 29255 of 2015, order dated 4.1.2016

9

With the aforesaid expression of law, the controversy should have

been put to rest but the fate of the proposition, as it seems, rose like a

phoenix.

12. In Sandip Ganpatrao Bhadade v. Commissioner, Amravati

9

,

the authorities below had held that the elected candidate was an

encroacher being in occupation of the government land. The High

Court, elaborating the scheme of the Act and the purpose of the

provision, ruled thus:-

―16. In view of the aforesaid meaning of the terminologies

"to encroach", "encroachment", "encroacher" and

"encroached", whoever resides in the property or any

portion thereof, which is an 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 others

and/or individually, either at one time or at different times

remains hardly of any significance as he becomes liable

to be removed and prosecuted under Section 53 of the

said Act. Whether a person has become liable to be

removed and/or prosecuted under Section 53 of the said

Act from the Government land or public property,

becomes a real test of attracting disqualification under

Section 14(1)(j-3) of the said Act. If the answer is in the

affirmative, the disqualification 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 of a Panchayat resides in the

property or any portion thereof, which is an encroachment

upon the Government land or public property. The

question as to whether any other person or a member of

9 2016 SCC OnLine Bom 8991

10

a family has already made an encroachment, loses its

significance and as soon as a member or proposed

member joins such act, he cannot escape from the

clutches of disqualification under Section 14(1)(j-3) of the

said Act. The question framed is answered accordingly.

18. If an intention of the Legislature is to prevent an

encroachment upon the Government land or public

property by a person, who is deemed to be a "public

servant" under Section 184 entitled to enjoy all privileges

attached to it under Section 180 of the said Act, can it be

said that such an intention of the Legislature be defeated

by adopting circuitous way of occupying the property,

which is an encroachment on the Government land or

public property. The answer would obviously be in the

negative, for two main reasons - (i) the act, which is

prohibited directly, cannot be promoted or encouraged

indirectly to defeat the object and purpose of such

prohibition, and (ii) it would amount to promoting or

encouraging the conflicting interest, necessarily resulting

in the disqualification under Section 14(1)(j-3) of the said

Act.‖

13. In the same year, that is, 2017, the High Court in Anita Laxman

Junghare v. Commr., Amravati

10

ruled thus:-

―6. … For attracting disqualification under section

14(1)(j-3), in a case like this, the crucial question to be

answered is: Does the legal representative or member of

the original encroacher's family continue to occupy the

government land or property. If he does, he attracts the

disqualification under Section 14(1)(j-3). It is not an

answer then for such person that the original

encroachment was by his predecessor or family member

and not by himself. If that encroachment is continued by

him, he attracts the disqualification. That was the case in

Devidas Surwade. The original encroachment may have

been by the petitioner's father, but after the death of his

father, he continued to occupy the property and thereby

10

2017 SCC OnLine Bom 9102

11

attracted the disqualification of section 14(1) (j-3). On the

other hand, in Kanchan's case, it was the petitioner's

father-in-law, who was the encroacher; she had nothing to

do with it. It was not the case of the State that she

continued to occupy the property either as a legal heir of

her father-in-law or as a member of her husband's family.

The emphasis is really on the continued encroachment

and not so much on the original act of encroachment.

Encroachment, after all, is not a one-time act. It is a

continuous act. If someone's encroachment is continued

by another, that other is equally an encroacher, as much

as the original encroacher.‖

14. Analysing the concept of removal from an elected post, the two-

Judge Bench of this Court in Sagar Pandurang Dhundare (supra) held

thus:-

―11. Thus, under the statutory scheme, an encroacher is

liable to be evicted by the Panchayat and if the Panchayat

fails, the Collector has to take action. The encroacher is

also liable to be prosecuted. Encroachment is certainly to

be condemned, the encroacher evicted and punished.

Desirably, there should not be a member in the

Panchayat with conflicting interest. But once a person is

elected by the people, he can be unseated only in the

manner provided under law. Even with the best of

intention, if there is no statutory expression of the

intention, the court cannot supply words for the sake of

achieving the alleged intention of the law maker. It is

entirely within the realm of the law maker to express

clearly what they intend. No doubt, there is a limited

extent to which the court can interpret a provision so as to

achieve the legislative intent. That is in a situation where

such an interpretation is permissible, otherwise feasible,

when it is absolutely necessary, and where the intention is

clear but the words used are either inadequate or

ambiguous. That is not the situation here. In the Act,

wherever the law-makers wanted to specify family, they

have done so. As noted by some of the judgments of the

High Court, in Explanation 2 for Section 14(1)(h), the

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failure to pay any tax or fee due to the Panchayat or Zila

Parishad by a member of a Hindu Undivided Family

(HUF) or by a person belonging to a group has been

expressly mentioned as a disqualification on others in the

family or group. It is, therefore, evident that when the

intent of the legislature was to disqualify a member for the

act of his family, it has specifically done so. The Court, in

the process of interpretation, cannot lay down what is

desirable in its own opinion, if from the words used, the

legislative intention is otherwise discernible.‖

15. Be it noted, reference was made to Abhiram Singh v. C.D.

Commachen

11

, wherein the Constitution Bench dealt with the

interpretation of Section 123 of the Representation of the People Act,

1951 (for short, ‗the 1951 Act‘). The conflict that was sought to be

resolved related to Section 123(3) of the 1951 Act that had been dealt

with by another Constitution Bench in Jagdev Singh Sidhanti v. Pratap

Singh Daulta

12

wherein the Court had held thus:-

―25. … The corrupt practice defined by clause (3) of

Section 123 is committed when an appeal is made either

to vote or refrain from voting on the ground of a

candidate‘s language. It is the appeal to the electorate on

a ground personal to the candidate relating to his

language which attracts the ban of Section 100 read with

Section 123(3). Therefore it is only when the electors are

asked to vote or not to vote because of the particular

language of the candidate that a corrupt practice may be

deemed to be committed. Where, however for

conservation of language of the electorate appeals are

made to the electorate and promises are given that steps

would be taken to conserve that language, it will not

amount to a corrupt practice.‖

11 (2017) 2 SCC 629

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

13

16. Various other decisions were also referred to in Abhiram Singh

(supra). Analysing certain aspects, namely, the legislative history, the

provisions contained in Section 153-A IPC, amendment to sub-section

(3) of Section 123 of the 1951 Act, literal versus purposive interpretation

and the constitutional validity of Section 123(3) of the 1951 Act, Madan

B. Lokur, J., held as under:-

―50.1. The provisions of sub-section (3) of Section 123 of

the Representation of the People Act, 1951 are required

to be read and appreciated in the context of simultaneous

and contemporaneous amendments inserting sub-section

(3A) in Section 123 of the Act and inserting Section 153A

in the Indian Penal Code.

50.2. So read together, and for maintaining the purity of

the electoral process and not vitiating it, sub-section (3) of

Section 123 of the Representation of the People Act,

1951 must be given a broad and purposive interpretation

thereby bringing within the sweep of a corrupt practice

any appeal made to an elector by a candidate or his

agent or by any other person with the consent of a

candidate or his election agent to vote or refrain from

voting for the furtherance of the prospects of the election

of that candidate or for prejudicially affecting the election

of any candidate on the ground of the religion, race,

caste, community or language of (i) any candidate or (ii)

his agent or (iii) any other person making the appeal with

the consent of the candidate or (iv) the elector.‖

17. T.S. Thakur, C.J., concurred with the view expressed by Madan B.

Lokur, J. and did not agree with the view expressed by D.Y.

Chandrachud, J. The learned Chief Justice in his concurring opinion

stated:-

14

―There is thus ample authority for the proposition that

while interpreting a legislative provision, the Courts must

remain alive to the constitutional provisions and ethos and

that interpretations that are in tune with such provisions

and ethos ought to be preferred over others. Applying that

principle to the case at hand, an interpretation that will

have the effect of removing the religion or religious

considerations from the secular character of the State or

state activity ought to be preferred over an interpretation

which may allow such considerations to enter, effect or

influence such activities. Electoral processes are

doubtless secular activities of the State. Religion can

have no place in such activities for religion is a matter

personal to the individual with which neither the State nor

any other individual has anything to do. The relationship

between man and God and the means which humans

adopt to connect with the almighty are matters of

individual preferences and choices. The State is under an

obligation to allow complete freedom for practicing,

professing and propagating religious faith to which a

citizen belongs in terms of Article 25 of the Constitution of

India but the freedom so guaranteed has nothing to do

with secular activities which the State undertakes. The

State can and indeed has in terms of Section 123(3)

forbidden interference of religions and religious beliefs

with secular activity of elections to legislative bodies.‖

18. S.A. Bobde, J., in his concurring opinion, expressed thus:-

―It is settled law that while interpreting statutes, wherever

the language is clear, the intention of the legislature must

be gathered from the language used and support from

extraneous sources should be avoided. I am of the view

that the language that is used in Section 123(3) of the Act

intends to include the voter and the pronoun ―his‖ refers to

the voter in addition to the candidate, his election agent

etc. Also because the intendment and the purpose of the

statute is to prevent an appeal to votes on the ground of

religion. I consider it an unreasonable shrinkage to hold

that only an appeal referring to the religion of the

candidate who made the appeal is prohibited and not an

appeal which refers to religion of the voter. It is quite

15

conceivable that a candidate makes an appeal on the

ground of religion but leaves out any reference to his

religion and only refers to religion of the voter. For

example, where a candidate or his election agent,

appeals to a voter highlighting that the opposing

candidate does not belong to a particular religion, or caste

or does not speak a language, thus emphasizing the

distinction between the audience‘s (intended voters)

religion, caste or language, without referring to the

candidate on whose behalf the appeal is made, and who

may conform to the audience‘s religion, caste or speak

their language, the provision is attracted. The

interpretation that I suggest therefore, is wholesome and

leaves no scope for any sectarian caste or language

based appeal and is best suited to bring out the

intendment of the provision. There is no doubt that the

section on textual and contextual interpretation proscribes

a reference to either.‖

19. This being the majority opinion, we have focussed on the same.

The two-Judge Bench in Sagar Pandurang Dhundare‘s case has

distinguished the said decision by holding thus:-

―Abhiram Singh v. C.D. Commachen (D) By Lrs. and

others is a recent Constitution Bench judgment of this

Court dealing with corrupt 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 corrupt practice.

The Court, to hold so, adopted a purposive interpretative

process declaring that the Representation of the People

Act, 1951 should be interpreted in that context to be

electorate centric rather than candidate centric. That is

not the situation in the present case. The appellants were

elected by the people to the Panchayat. There is no case

that they are original encroachers on the public property.

And this is not the case where the alleged act of

encroachment has influenced the will of the people in

which case, going by Abhiram Singh (supra), the court

16

would have been justified in attempting a purposive

interpretation to achieve a laudable object.‖

20. It also distinguished the decision in Hari Ram v. Jyoti Prasad and

another

13

. In the said decision, the issue that arose for consideration

was whether the defendants had made illegal/unauthorized construction

over the public street by way of illegal encroachment. The Court

addressed the issue relating to limitation and referred to Section 22 of

the Limitation Act, 1963, that deals with continuing breaches and torts.

In this context, the Court, placing reliance on Sankar Dastidar v.

Banjula Dastidar

14

, held that the suit was not barred by limitation and,

ultimately, did not find any substance in the appeal and dismissed the

same with costs and directed the appellant to remove the unauthorized

encroachment within sixty days from the date of the judgment. The

two-Judge Bench, while distinguishing the said decision, opined that it

did 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 Dhundare

opined that:-

―14. As we have already noted above, the duty of the

court is not to lay down what is desirable in its own

13 (2011) 2 SCC 682

14 (2006) 13 SCC 470

17

opinion. Its duty is to state what is discernible from the

expressions used in the statute. The court can also

traverse to an extent to see what is decipherable but not

to the extent of laying down something desirable

according to the court if the legislative intent is otherwise

not discernible. What is desirable is the jurisdiction of the

law-maker and only what is discernible is that of the

court.‖

And again:-

―16. In case, the appellants suffer from any of the three

situations indicated above, they shall be unseated. The

rest is for the State to clarify by way of a proper

amendment in case they really and truly want to achieve

the laudable object of preventing persons with conflicting

interest from becoming or continuing as members of the

Panchayat. The extent of conflicting interest is also for the

Legislature to specify.‖

22. If we follow the principle stated in Sagar Pandurang Dhundare,

indubitably the appeal has to be allowed and the impugned judgment

and order are to be set aside. It is apt to mention here that in Sagar

Pandurang Dhundare, there has been reference to Section 53(1), (2)

and (2-A). For the sake of completeness, it is profitable to reproduce

the said provision:-

―53. Obstructions and encroachments upon public

streets and open sites.-(1) Whoever, within the limits of

the gaothan area 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 other encroachment or obstruction, or

(b) deposits, or causes to be placed or deposited, any

box, bale, package or merchandise or any other thing, or

18

(c) without written permission given to the owner or

occupier of a building by a Panchayat, puts up, so as to

protect from an upper storey thereof, any verandah,

balcony, room or other structure or thing.

in or over any public street or place, or in or over upon

any open drains, gutter, sewer or aqueduct in such street

or place, or contravences any conditions, subject to which

any permission as aforesaid is given or the provisions of

any byelaw made in relation to any such projections or

cultivates or makes any unauthorised use of any grazing

land, not being private property, shall, on conviction, be

punished with fine, which may extend to fifty rupees and

with further fine which may extend to five rupees for every

day on which such obstruction, deposit, projection,

cultivation or unauthorised use continues after the date of

first conviction for such offence.

(2) The Panchayat shall have power to remove any

such obstruction or encroachment and to remove any

crop unauthorisedly cultivated on grazing land or any

other land, not being private property, and shall have the

like power to remove any unauthorised obstruction or

encroachment of the like nature in any open site not being

private property, whether such site is vested in the

Panchayat or not, provided that if the site be vested in

Government the permission of the Collector or any officer

authorised by him in this behalf shall have been first

obtained. The expense of such removal shall be paid by

the person who has caused the said obstruction or

encroachment and shall be recoverable in the same

manner as an amount claimed on account of any tax

recoverable under Chapter IX.

It shall be the duty of the panchayat to remove such

obstruction or encroachment immediately after it is

noticed or brought to its notice, 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

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made in this behalf, may take action as provided in that

sub-section, and submit the report thereof to the

Commissioner. The expense of such removal shall be

paid by the person who has caused the said obstruction

or encroachment or unauthorised cultivation of the crop

and shall be recoverable from such person as an arrear of

land revenue.

(3) The power under sub-section (2) or sub-section (2A)

may be exercised in respect of any obstruction,

encroachment or unathorised cultivation of any crop

referred to therein whether or not such obstruction,

encroachment or unauthorised cultivation of any crop has

been made before or after the village is declared as such

under this Act, or before or after the property is vested in

the Panchayat.

(3-A) Any person aggrieved by the exercise of the

powers by the panchayat under sub-section (2) or (3)

may, within thirty days from the date of exercise of such

powers, appeal to the Commissioner and the

Commissioner, after making such enquiry as he thinks

necessary shall pass such orders as he deems necessary

after giving such person a reasonable opportunity of

being heard.

(3-B) Any order made by the Collector in exercise of

powers conferred on him under sub-section (2A) or (3)

shall be subject to appeal and revision in accordance with

the provisions of the Maharashtra Land Revenue Code,

1966 (Mah. XLI of 1960).

(4) Whoever, not being duly authorised in that behalf

removes earth, sand or other material from, or makes any

encroachment in or upon an open site which is not private

property, shall, on conviction, be punished with fine which

may extend to fifty rupees, and in the case of an

encroachment, with further fine, which may extend to five

rupees for every day on which the encroachment

continues after the date of first conviction.‖

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23. Interpreting the said provision, the two-Judge Bench has opined

that:-

―15. From the Statements of Objects and Reasons for the

amendment introduced in 2006, it is seen that the

purpose was ―to disqualify the person who has

encroached upon the Government land or public property,

from becoming member of the Panchayat or to continue

as such‖. The person, who has encroached upon the

Government land or public property, as the law now

stands, for the purpose of disqualification, can only be the

person, who has actually, for the first time, made the

encroachment. However, in view of Section 53(1) of the

Act, in case a membe r has been punished for

encroachment, he shall be dismissed. Similarly, a

member against whom there is a final order of eviction

under Section 53(2) or (2A), shall also not be entitled to

continue as a member.‖

24. As we understand from the above paragraph, the two-Judge

Bench has been guided by the word ‗person‘ as used in Section 14(1)

and further influenced by the language employed in Section 53. That

apart, the analysis made by the two-Judge Bench, as we notice, has

given a restricted meaning to the word ‗person‘ who has encroached

upon the government land or public land. It has also ruled that such a

person is one who has actually for the first time encroached upon the

government or public land. In Devidas Surwade (supra), the Division

Bench of the Bombay High Court, placing reliance on the Statement of

Objects and Reasons and laying stress on the word ‗person‘, noted that

the legal heirs of an encroacher who continue to occupy the government

21

land or government property are to be treated as encroachers. It has

been held that if such an interpretation is not adopted, the result would

be absurd, for the government land would continue to remain

encroached and the legal heirs or the assignees or the transferees

remaining on the encroached government land shall claim the right to

get elected as a member of a democratically elected body. According to

the Division Bench of the Bombay High Court, such an interpretation

would defeat the very object of the Bombay Village Panchayat

(Amendment) Act, 2006.

25. First, we are obliged to remind ourselves that the view expressed

by the Bombay High Court in Devidas Surwade (supra) has been

affirmed by this Court in Special Leave Petition. It is worth noting here

that this Court, while dismissing the special leave petition, had observed

that it had not found any merit in the petition. Whether such an order

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 the said

route. We think it appropriate to analyse the provision, understand the

purpose and the contextual relevance and also appreciate the nature of

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 and

22

encroachment upon public streets and upon sites. It confers power on

the Panchayat to remove such obstruction or encroachment or to

remove any unauthorizedly cultivated grazing land or any other land.

That apart, it also empowers the Panchayat to remove any unauthorized

obstruction or encroachment of the like nature in or upon a site not being

private property. The distinction has been made between private

property and public property. It has also protected the property that vests

with the Panchayat. If the Panchayat does not carry out its responsibility

of removing the obstruction or encroachment after it has been brought to

its notice in accordance with the procedure prescribed therein, the

higher authorities, namely, the Collector and the Commissioner, have

been conferred with the power to cause removal. There is a provision for

imposition 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 are duty

bound to see to it that the obstruction or encroachment upon any land,

which is not a private property but Government land or a public property,

should be removed and prosecution should be levied against the person

creating such obstruction or encroachment.

28. Section 184 of the Act provides that every Member of the

Panchayat and every officer and servant maintained by or being

23

employed under the Panchayat shall be deemed to be a public servant

for the purpose of Section 21 of the Indian Penal Code. Analysing the

various provisions, the learned Single Judge in Sandip Ganpatrao

Bhadade (supra) has opined:-

―11. It is in the background of the aforesaid provisions of

law, that the provisions of qualifications and

disqualifications to vote, contest the election and being

continued as a member of Panchayat, are required to be

considered. Section 13 of the said Act deals with the

persons qualified to vote and be elected. The persons

incurring any disqualification under the provisions of the

said Act are neither qualified to vote nor to be elected as

a member of a Panchayat. Section 14 deals with different

kinds of disqualifications, as stipulated in clauses (a) to

(k) under sub-section (1), which operate against two kinds

of persons – (i) who proposes to become a member of a

Panchayat, and (ii) who has become a member of a

Panchayat. If a person has incurred any one or more

disqualifications, then he is prohibited from becoming a

member of a Panchayat, and if becomes a member of a

Panchayat, then his is not entitled to continue as such.

The disqualification under Section 14 is in respect of the

acts, events, deeds, misdeeds, transactions, etc, which

have not been done, happened or occurred bef ore

entering into the office as a member of a Panchayat as

well as those which take place during continuance as a

member of a Panchayat.‖

And again:-

―13. The very object of introducing the provision of

disqualification under Section 14 (1) (j-3) of the said Act is

to avoid the conflict of interest by prohibiting the persons,

who are the encroachers upon the Government land or

public property to get elected or continued as a member

of the Panchayat, which is democratically elected body of

the villagers. It is beyond comprehension to assume that

a person under statutory obligation or a duty to protect the

24

Government land or public property from encroachment,

commits an act of such encroachment. To permit person,

who proposes to become a member or becomes a

member of the Panchayat to be the encroacher upon the

Government land to public property, would be

anathematic, acting in breach of statutory duty, exposing

himself to prosecution under sub-sections (1) and (4) of

Section 53, resulting ultimately in losing the protection

under Section 180 read with Section 184 of the said Act. It

is in this context that the text of disqualification under

Section 14(1)(j-3) of the said Act is required 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, if any, of the encroacher who continue to occupy the government

land. Emphasis has been laid on encroachment and continued

encroachment. After the said Division Bench judgment, number of

learned Single Judges have adopted a different approach without

noticing the judgment which is against judicial discipline.

29. We may note here with profit that the word ‗person‘ as used in

Section 14 (1) (j-3) is not to be so narrowly construed as a consequence

of which the basic issue of ―encroachment‖ in the context of

disqualification becomes absolutely redundant. The legislative

intendment, as we perceive, is that encroachment or unauthorized

occupation has to viewed very strictly and Section 53, therefore,

provides for imposition of daily fine. It is also to be borne in mind that it is

the Panchayat that has been conferred with the power to remove the

25

encroachment. It is the statutory obligation on the part of the Panchayat

to protect the interest of the properties belonging to it. If a member

remains in occupation of an encroached property, he/she has a conflict

of interest. If an interpretation is placed that it is the first encroacher or

the encroachment made by the person alone who would suffer a

disqualification, it would lead to an absurdity. The concept of purposive

interpretation would impel us to hold that when a person shares an

encroached property by residing there and there is continuance, he/she

has to be treated as disqualified. Such an interpretation subserves the

real warrant of the provision. Thus analysed, we are of the view that the

decision in Sagar Pandurang Dhundare (supra) does not lay down the

correct position of law and it is, accordingly, overruled.

30. In view of the aforesaid analysis, we do not find any substance in

the appeal and the same stands dismissed accordingly. There shall be

no order as to costs.

..………………………….CJI.

(Dipak Misra)

..…………………………….J.

(A.M. Khanwilkar)

..…..……………….………..J.

(Dr. D.Y. Chandrachud)

New Delhi;

September 19, 2018