Janabai v. Additional Commissioner and Others
DIPAK MISRA, CJI 1. 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 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 interfe re 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 Panc hayat Act,
1958 (for short, ‘the Act’). Section 14 of the Act deals wit h 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-
JANABAI v. ADDITIONAL COMMISSIONER AND OTHERS
(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 fa ct
recorded by the subordinate authorities. I see no reason to interfere
with the impugned order”.
4. The order passed by the High Court is seriously criticise d 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 trea ted as
an encroacher by the authorities. The Division Bench of this C ourt
referred to the decisions of the High Court of Bombay. We thi nk 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:-
“10. There is nothing in the Act by which the concept of family or
joint residence could be imported as far as the sub ject of
1 (2018) 1 SCC 340
2 2012 SCC On Line Bom 1393
703
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 wa y 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 a ny 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 panc hayat 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 representative. It is the act
of the person seeking to contest election or functioni ng 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
3 WP No. 8497 of 2012, decided on 5.10.2012 (Bom)
JANABAI v. ADDITIONAL COMMISSIONER AND OTHERS
[DIPAK MISRA, CJI]
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 per son
therein assumes importance and significance. It may amount t o
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 t o or after
Petitioner’s marriage. Hence, in its wisdom if the Legisl ature
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 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 mo de 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 whi ch 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
4 1989 Supp (2) SCC 7
5 2012 SCC On Line Bom 1537
705
the disqualification was on the ground of encroachment. The High Court
has opined that as per the provision, it is the act of the pers on who is
elected and that alone is to be considered. The High Court, in t hat
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 o f
the same family but the consequences are visited on an electe d
representative or a person desiring to contest the election to Gram
Panchayat. Even if such person is a Member of that family b y
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
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 r uled that the
encroachment by a member of the family of the elected per son would
tantamount to encroachment by the elected candidate. The rea soning
of the said decision is as follows:-
“6. We find that there is a definite object in making the s aid
amendment to the provisions of disqualification and the object is
that one, who encroaches upon the Government land o r 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
6 2012 SCC On Line Bom 2126
JANABAI v. ADDITIONAL COMMISSIONER AND OTHERS
[DIPAK MISRA, CJI]
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 encr oached
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 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 f or
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 c ould 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 enc roachment
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.”
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. T he
High Court, elaborating the scheme of the Act and the purpose of the
provision, ruled thus:-
7 2015 SCC On Line Bom 6141
8 Parvatabai @ Shobha Kakde v. Additional Commissioner, SLP (C) No. 29255 of
2015, order dated 4.1.2016
9 2016 SCC On Line Bom 8991
707
“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 become s 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 S ection
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 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 an swered
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 b e
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.”
JANABAI v. ADDITIONAL COMMISSIONER AND OTHERS
[DIPAK MISRA, CJI]
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: D oes 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 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 fa ils, the
Collector has to take action. The encroacher is also liabl e 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
10 2017 SCC OnLine Bom 9102
709
supply words for the sake of achieving the alleged intention of the
law maker. It is entirely within the realm of the law ma ker to
express clearly what they intend. No doubt, there is a limited extent
to which the court can interpret a provision so as to achiev e 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 eit her
inadequate or ambiguous. That is not the situation here. In the
Act, wherever the law-makers wanted to specify family, the y
have done so. As noted by some of the judgments of the High
Court, in Explanation 2 for Section 14(1)(h), the 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 h is
family, it has specifically done so. The Court, in the proces s of
interpretation, cannot lay down what is desirable in its own opinion,
if from the words used, the legislative intention is other wise
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 re frain
from voting on the ground of a candidate’s language. It is the
appeal to the electorate on a ground personal to the candida te
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
11 (2017) 2 SCC 629
12 (1964) 6 SCR 750 = AIR 1965 SC 183
JANABAI v. ADDITIONAL COMMISSIONER AND OTHERS
[DIPAK MISRA, CJI]
electorate appeals are made to the electorate and promis es are
given that steps would be taken to conserve that language, it will
not amount to a corrupt practice.”
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 can didate
or his agent or by any other person with the consent of a candidate
or his election agent to vote or refrain from votin g for the
furtherance of the prospects of the election of that candid ate 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 expres sed 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 opini on
stated:-
“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 han d, an
interpretation that will have the effect of removing the religion or
711
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 prefer ences
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, whe rever 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 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,
JANABAI v. ADDITIONAL COMMISSIONER AND OTHERS
[DIPAK MISRA, CJI]
caste or speak their language, the provision is attracted. The
interpretation that I suggest therefore, is wholesome and le aves
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 prese nt
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 allege d act of
encroachment has influenced the will of the people in which case,
going by Abhiram Singh (supra), the court would have been
justified in attempting a purposive interpretation to a chieve 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. T he 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 dismi ssed the
same with costs and directed the appellant to remove the unauthorized
encroachment within sixty days from the date of the judgment. The
13 (2011) 2 SCC 682
14 (2006) 13 SCC 470
713
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 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 disce rnible.
What is desirable is the jurisdiction of the law-maker an d 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 pe rsons
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 , indubitablythe 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, b ale,
package or merchandise or any other thing, or
JANABAI v. ADDITIONAL COMMISSIONER AND OTHERS
[DIPAK MISRA, CJI]
(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 pl ace, 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, sh all, 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 su ch
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 r emove
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 office r
authorised by him in this behalf shall have been first obtaine d.
The expense of such removal shall be paid by the person who has
caused the said obstruction or encroachment and sha ll 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 made in this behalf,
may take action as provided in that sub-section, and submi t the
report thereof to the Commissioner. The expense of such removal
shall be paid by the person who has caused the said obstruction or
715
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, encroachme nt 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 ves ted 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 da ys
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 t he
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, shal l, 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.”
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,
JANABAI v. ADDITIONAL COMMISSIONER AND OTHERS
[DIPAK MISRA, CJI]
for the purpose of disqualification, can only be the perso n, 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 unde r
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 not ice, has
given a restricted meaning to the word ‘person’ who has encroa ched
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
land or government property are to be treated as encroac hers. 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 ele cted 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 (Amendm ent) Act,
2006.
25. First, we are obliged to remind ourselves that t he 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 t he grass
717
root level. Having said that, we shall now analyse the statutory scheme.
Section 53 that occurs in Chapter III deals with ob struction and
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 th at vests with the
Panchayat. If the Panchayat does not carry out its responsibilit y 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, h ave been
conferred with the power to cause removal. There is a prov ision 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 Pancha yat 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 employed
under the Panchayat shall be deemed to be a public servant f or 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 w ith
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 Panchay at.
Section 14 deals with different kinds of disqualificati ons, as
stipulated in clauses (a) to (k) under sub-section (1), which operate
against two kinds of persons – (i) who proposes to become a
JANABAI v. ADDITIONAL COMMISSIONER AND OTHERS
[DIPAK MISRA, CJI]
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 Panch ayat 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 pr otect the
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 Sectio n 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 l and.
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
719
of which the basic issue of “encroachment” in the c ontext 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 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 in terest. 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.
Kalpana K. Tripathy A ppeal dismissed.
JANABAI v. ADDITIONAL COMMISSIONER AND OTHERS
[DIPAK MISRA, CJI]