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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

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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 29th 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‖.  

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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 others1.  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 Maharashtra2, 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

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―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

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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 Maharashtra3  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)

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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. CBDT4).  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 Ranjagane5, 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, Amravati6, 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

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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,  

Nagpur7.  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 petition8 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  

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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, Amravati9,  

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

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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., Amravati10 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

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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.  

Commachen11, 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 Daulta12 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

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 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:-

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―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

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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

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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  

another13.  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 Dastidar14, 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

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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

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 (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 member 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

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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

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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

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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 before  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

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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

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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