SAGAR PANDURANG DHUNDARE versus KESHAV AABA PATIL AND OTHERS
[2017] 11 S.C.R. 13, Supreme Court of India, 2017
Outcome: Disposed off
Segment: Ratio
[2017) ll S.C.R. 13 
SAGAR PANDURANG DHUNDARE 
v. 
KESHAV AABA PATIL AND OTHERS 
(Civil Appeal Nos. 2306-2307 of2017) 
NOVEMBER 13, 2017 
[KURIAN JOSEPH AND R. BANUMATHI, JJ.] 
Maharashtra Village Panchayat Act, 1958: 
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ss.14(1)()-3), 53(1), (2) and (2A) - Disqualification of 
encroacher on Government land or public property - From becoming 
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or continuing as member of Panchayat -
Whether such 
disqualification ·is limited to the actual encroacher or is extended to 
the family member of encroacherlbeneficiwy of encroachment -
Held: The person who has encroached upon the Government or 
public property, for the.purpose of disqualification, can only be 
the person, who has aclllally, for the first time made the encroachme/lf 
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- Such disqualification would not be extended to the family member 
of the encroacher - Jn the Act, wherever the legislature intended to 
specifY family, it has done so - Family has not been specified in 
s.14(/)(j-3) - However, in view of s. 53(1) member who has been 
punished for encroachment, shall be dismissed - Member against · E 
whom there is final order of eviction uls.53(2) or (2A) is also not 
entitled to continue as member of Panchayat. 
Interpretation of Statutes: 
Legislative intent - Ascertainment of - Held: Court can 
interpret a provision so as to achieve the legislative intent when it is 
absolutely necessary and where the intention is clear but the wordv 
used are eiiher inadequate or ambiguous - If there is no statutory
expression of the intention, Court cannot supply wordr for the sake 
of achieving the intention of the law-maker - The Court in the 
process of interpretation cannot lay down what is desirable in its 
opinion, iffl-om the words used, the legislative intention is othenvise 
discernible. 
Disposing of the appeals, the Court 
HELD:l. Under the statutory scheme, an encroacher is 
liable to be evicted by the Panchayat and if the Panchayat fails, 
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SUPREME COURT REPORTS 
[2017] 11 S.C.R. 
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. 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. [Para 11][25-G-H; 26-A-D] 
Abhiram Singh v. CD.
Commachen (D) By Lrs. and 
others (2017) 2 SCC 629 : [2017[ 1 SCR 158: Hori 
Ram v. Jyoti Prasad and anorher (2011) 2 SCC 682 : 
[2011] I SCR 1076 - distinguished. 
2. 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 discernible. What is desirable 
is the jurisdiction of the law-maker and only what is discernible 
is that of the court. (Para 141127-CJ 
3. From the Statements of Objects and Reasons for the 
amendment introduced in 2006, it is seen that the purpose was 
"to disqua/ifY the person who has e11croached 11po11 the Government 
/a11d or public property, from becoming member of the Pa11chayat
SAGAR PANDURANG DHUNDARE v. KESHAV AABA PATIL 
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AND OTHERS 
or to continue t1s such". The person, who has encroached upon 
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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 
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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. [Para 15][27-D-E[ 
4. In case, the appellants snffer 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 
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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. [Para 16][27-F-G] 
: Ganesh Arun Chavan v. State of Maharashtra and 
others 2013 (2) Mh. L.J. 955; Kanchan Shivaji Atigre 
v. Mahadev Baban Ranjagane and others 2013 (1) Mb. 
L.J. 455; Devidas s/o Matiramji Surwade v. Additional 
Commissioner. Amravati and others 2017 (l) Mh. 
L.J.102; Parvatahai @ Shohha dlo Kisan Kande v. 
Additional Commissioner, Nagpur and others 2015 (5) 
Mh. L.J. 238; Sandip Ganpatrao Bhadade v. Additional 
Commissioner, Amravati
and others 2017 (1) Mh.L.J.79 
- referred to. 
Case I,aw Reference 
[2017] 1 SCR 158 
distinguished 
Para 12 
[20l1] 1 SCR 1076 
distinguished 
Para 13 
2013 (2) Mh. L.J. 955 
referred to 
Para 3 
2013(1) Mh. L.J. 455 
referred to 
Para 5 
2017 (1) Mh. L.J.102 
referred to 
Para 6 
2015 (5) M.h. L.J. 238 
referred to 
Para7 
2017 (1) Mh.L.J.79 
referred to 
Para 8 
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(20 l 7] l l S.C.R. 
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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2306-
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2307 of2017 
. From the Judgment and Order dated J 9.07.2016 in Writ Petillon 
No. 6916 of2016 and Judgment and Order dated 24.J0.2016 in Review 
Petition No. 153 of20!6 of the High Court of Judicature at Bombay 
WITH 
C.A. Nos. 5132-5133 of2017. 
Makarand D. Adkar, Vijay Kumar, Shrikrishna Ganbavale, 
Ms. Apama Jha, M. Y. Dcshmukh, Shakti Pandey, Sushi! Karanjkar, 
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Srikant R. DcsJtmukb, Vinay Navare, Ms. Gwen Kartika, Ms. Abha 
R. Sharma, Kuf1al Cheema, Nishant Katneshwarkar, F. I. Choudhary, 
Mordhwaj Singh,Anurag Kishore, Braj Kishorc Mishra.Abhishek Yadav. 
Advs. for the appearing parties. 
The Judgment of the Court was delivered by 
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KUIUAN, J. I. The crucial question to be decided is whether a 
family member of the original encroacher can be disqualified, under the 
Maharashtra Village Panchayats Act, 1958 (for short "the Act"). The 
enabling provision, as introduced by an amendment in 2006, reads as 
follows: 
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"14.Disqµalifications.-(I) No person shall be a member of a 
Panchayat, or continue as such, who--
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(j-3) has encroached upon the Government land or public property; 
or ... " 
2. On the undisputed facts of these cases, there is no allegation 
that the appellants are encroachers themselves, in the sense that they 
themselves firs~ encroached upon the Government property and they 
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continue to occupy the same. The
allegation is that their father/grandfather 
arc encroachers and they arc the beneficiaries of the encroachment. 
According to the State and the contesting respondent, the beneficiary of 
an encroachment is also an encroacher. 
3. The question that arises before us has been dealt with by several 
H judgments of the High Court of Bombay. However there appears to be
SAGAR PANDURANG DHUNDARE v. KESHAV AABA PATIL 
AND OTHERS [KURIAN, J.] 
a conflict between the various decisions of the High Court. In Ganesh 
Arun Cha van v. State of Maharashtra and others', decided on 
24.09.2012, the incumbent was sought to be disqualified on the ground 
of encroachment. The defense was that the encroachment was by his 
father and the house was constructed with the income of his father. The 
High Court made the following observations: 
"l 0. 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. 
Therefore, the encroachment must be by the person who is a 
membernnd not any third party. 
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12. The Legislature has taken care and wherever the concept of 
family or joint residence has to be applied, specific provision in 
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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 
I 2013 (2) Mh. L.J. 955 
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panchayat of any article and equally having any share, interest m 
any lease for a period not exceeding ren years of any immovable 
property. Tliercfore. 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 acr 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 functioning as a 
member which alone will attract the provision in question." 
4. In Yallu~ai Kamblc v. State of Maharashtra and others'. 
decided on 05-10-2012, the petitioner was elected as the Sarpanch of 
the Gram Panchayat. The allegation against the petitioner was that her 
husband and brotbier-in-law made an encroachment on gairan land and 
constructed a house thereon. She denied the allegation and said that she 
cannot be disqualified if the encroachment was by her husband and not 
by her. The High Com1 relied on the decision in Ganesh Chavan (supra) 
and finally held as follows: 
"14. However, when it comes to encroachment upon Government 
Land or Public Property, the Legislature is aware that ordinarily 
and normall:y such act "is gaining upon the rights or possession of 
another". Tllat 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 membcronly 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 wr011tgdoers and lawbreakers. This CoU11 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 ifa matter, 
provision fot which may have been desirable, has not been really 
'Writ Petition No. 8497 of20l2
SAGAR PANDURANG Dl:IUNDARE v. KESHAV AABA PATIL 
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AND OTHERS [KURIAN, J.] 
provided for by the Legislature, the omission or defect is of the 
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natw·e which cannot be cured or supplied by a mode of construction 
which amounts to ironing out the creases. (See AIR 1989 SC 501, 
Petron Engineering Construction Co. Pvt. Ltd. vs. Central Board 
of Dire~t Taxes). True it is that the character and conduct of the 
representative of the people should be exemplmy and setting a 
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high standard. He will not be a true representative of the people if 
he indulges in acts which arc immoral, illegal and wrongful but the 
grievance should be raised before some other forum." 
5. A few days later, in Kanchan Shivaji Atigre v, Mahadcv 
Baban Ranjagane·and others' decided on 12.10.2012, the 
disqualification was also on the ground of encroachment. It was the 
case of the petitioner that the wording of the provision makes it clear 
that it is the act of the person who is elected, which alone, is relevant. 
The Court held as follows. 
"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 ofcncroachment even if he is a Member of 
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the same family but the consequences are visited on an elected 
rcprescntati vc or a person desiring to contest the election to Gram 
Panchayat. Even if such person is a Member of that family
by 
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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 F 
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 
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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. That would amount to legislation and which 
act a Court cannot perform or rather not permitted to perform. 
'2013(1) Mh. L.J. 455 
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That is a function which has to be pe1formed by the legislature 
alone and if there is any difficulty or lacuna in the legislation. it is 
for the legislature to step in and not for me to re-write the section 
or provision, in question." 
6. The other string of decisions interprets the impugned provision 
to include encroachment by a member of the family of the elected person. 
In Devidas s/o Matiramji Surwade v. Additional Commissioner, 
Amravati and ot~crs' decided on 3 l.07.2012, a division bench of the 
High Court ofBor1Jbay held as follows: 
"5. 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 b¢coming an elected, member of the Gram Panchayat. 
The tenn 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 iJ;!terpretation 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 Qr 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 ofintcrprctation to defeat the very object of the Bombay 
·Village Panchayats (Amendment) Act, 2006 .. " 
7. The contention put forth by the respondent in the case of 
Parvatabai @ Shobha d/o Kisan Kande v. Additional 
Commissioner, N~gpur and others' was that she was merely residing 
in the house of her father and as she was not responsible for said 
encroachment, she was not liable to be disqualified. The High Court 
considered the dQCisions in Ganesh Chavan (supra) and Dcvidas 
Surwade (supra) and held as follows: 
"10. The ju<i!gment of the Division Bench in Devidas Surwade 
(supra) was delivered on 31-7-2012 and prior to the judgments of 
learned Single Judge in Ganesh Cha van (supra) dated 24-9-2012, 
'2017 (I) Mh. L.J.104. 
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'2015 (5) Mh. L.J. 238
SAGAR PANDURANG DHUNDARE v. KESHAV AABA PATIL 
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AND OTHERS [KURIAN, J.] 
Ya//ubai Kamb/e (supra) dated 5-10-2012, Kanchan Atigre A 
(supra) dated 12-10-2012. The judgment of the Division Bench 
was not brought to the notice ofleamed Single Judge when said 
decisions were rendered. Moreover, the judgment of the Division 
Bench m Devidas Surwade (supra) on which reliance has been 
placed by the learned Counsel for the respondents indicates that 
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the Statement of Objects and Reasons have been taken into 
consideration after which it has been observed that the term 
"person" in the amended provisions would have to be interpreted 
to bring legal_ heirs of a person who has encroached and continues 
to occupy Government land within its purview. The reasons for 
interpreting said provisions have thereafter been statedin para 5. 
The contention raised on behalf of the petitioner that instead of 
the judgment of the Division Bench in Devidas Surwade (supra), 
the view as taken by the learned Single Judge In Yal/ubai Kamble 
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and Kanchan A tigre (supra) which interprets the expression 
"person" in a narrow sense should be preferred cannot be accepted. 
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The judgment of the Division Bench binds this Court the same 
will have to be followed. The reliance sought to be placed on the 
ratio of judgment of the Special Bench is misplaced. The decision 
in Devidas Sunvade (supra) being that of the Division Bench 
and the expression "person" having been duly considered. it is not
permissible for this Court to go into the question as to whether the 
ratio of judgments of learned Single Judge should be followed 
instead of the view taken by the Division Bench. The ratio of the 
judgment of the Division Bench will have to be respectfully 
followed. Hence, for aforesaid reasons. the submissions made on 
behalf of the petitioner cannot be accepted." 
The Special Leave Petition in this case was dismissed at the threshold. 
8. In Sandip Ganpatrao Bhadade v. Additional Commissioner, 
Amravati and others•, the finding of both the authorities below was 
that the petitioners were residing in or occupying the property, which is 
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an encroachment over the Government land. The Court analysed the 
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scheme of the Act and held as follows: 
"13. The very object ofintroducing the provision of disqualification 
under Section 14(1 )G-3) of the said Act is to avoid the conflict of 
• 2017 (I) Mh.L.J.79. 
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interest by prohibiting the persons, who are the encroachcrs upon 
the Government land or public property to get elected or continued 
as a member of the Panchayat, which is a democratically elected 
body onhe villagers. It is beyond comprehension to assume that 
a person under statutory obligation or a duty to protect the 
Government land or public property from encroachment, commits 
an act of such encroachment. To permit a person, who proposes 
to become a member or becomes a member of the Panchayat to 
be the e111croacher upon the Government land or public property, 
would be anathematic, acting in breach of statutory duty, exposing 
himself to prosecution under sub-sections (I) an (4) of Section 
53, resul1ing ultimately in losing the protection under Section 180 
read wit\1 Section 184 of the said Act. It is in this context that the 
text of disqualification under Section 14(! )(j-3) of the said Act is 
required to be analyzed and interpreted. 
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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 encroµchment upon the Government land or public property, 
can be ~aid 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 pros~cuted 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-~) 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( l )0-
3) of the said Act is attracted even in a case where a member of 
a Pancha~at 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 sQon as a member or proposed member joins such act, he
SAGAR PANDURANG DHUNDARE v. KESHAV AABA PATIL 
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AND OTHERS [KURIAN, J.] 
cannot escape from the clutches of disqualification under Section 
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14( I )U-3) of the said Act. The question framed is answered 
accordingly. 
18. If an intention of the Legislature is to prevent an encroachment 
upon tlic 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." 
9. The High Court in, Anita Laxman Jungharc v. Additional 
Commissioner, Amravati Division and othcrs1 made an attempt to 
reconcile the different streams of thought. 
"6. The views expressed both by the learned Single Judge in the 
case of Kanchan Atigre (supra) and the Division Bench in the 
case of Devidas Surwade (supra) can certainly be reconciled. 
There is no conflict between the two. 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. Ifhe docs, 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. lf that encroachment is continued by 
him. he attracts the disqualification. That was the case in Devidas 
Surwadc. 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(l)(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 
7 Writ Petition No. 1660 of~Ol7 
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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 contmued 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." 
IO. The case before us is ofa post election scenario, wherein the 
Collector has taken steps to disqualify an elected member on the petition 
filed by certain individuals much after the election. It is the contention of 
the learned Counsel for the respondents that the incumbent bdng a 
member of the Panchayat and the Panchayat being the primary authority 
to go into the question of encroachment and take steps for the eviction 
of cncroachcrs, the participation of an interested member in the 
Panchayat would be detrimental to the object of the statute and it would 
be against the larger public interest. In this context Section 53(1 ), (2) 
and (2A) of the Act are rdevant: 
"53. Obstructions and encroachments upon public streets 
and open sites.-(!) Whoever, within the limits 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 
(c) without written permission given to the owner or occupier 
of a building by a Pa11chayat, puts up, so as to protect from an 
upper storey thereof, any verandah, balcony, room or other 
structure or thing, 
in ur over any public street ur placc, or in or over upon any open 
drains. gutu.:r, sewer or aqueduct in such street or place, or 
contravenes any conditions. subject to \Vhich any pcr1nission as 
aforesaid is given or the provisions ofany by-law made in relation 
to any such projections or cultivates or makes any unauthorised 
use of any grazing land, not being private property, shall. on
SAGAR PANDURANG DHUNDARE v. KESHAV AABA PATIL 
AND OTHERS [KURIAN, J.] 
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 ornot, provided that ifthe 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. 
((2A) lfany 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 tlmt 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 unauthorized cultivation of the crop and shall be 
recoverable from such person as an arrear of land revenue.]" 
(Emphasis supplied) 
25 
A 
B 
c 
D 
E 
F 
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 
G 
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 
H
26 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
(2017] l l S.C.R. 
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 sµch an interpretation is permissible, otherwise feasible. 
when it is absolu~ely necessary, and where the intention is clear but the 
words used arc 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( I )(h), the failure to pay any tax or 
fee dnc to the Panchayat or Zila Parishad by a member of a Hindu 
Undivided Fam illy (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 Cou1t, in the process of interpretation, cannot lay down what is 
desirable in its own opinion, if from the words used, the legislative 
intention is othcrWise discernible. 
12. Abhiram Singh v. C.D. Commachcn {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 vote& accordingly, has been held to be a corrupt practice. 
The Court, to hold so, adopted a purposive interpretative process declaring 
thatthe Representation of the People Act, 1951 should be interpreted in 
that context to b¢ electorate centric rather than candidate centric. That 
is not the situation in the present case. The appellants were elected by 
the people to the Panehayat. There is no case that they arc original 
cncroachcrs on tile 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 would have 
been j ustificd in <11:tempting a purposive interpretation to achieve a laudable 
object. 
13. The re~pondents have placed reliance on Hari Ram v. Jyoti 
Prasad and another' to say that an encroachment is a continuing wrong. 
While there is no quarrel with the aforesaid position, this case docs not 
further the point made by the respondents. It is a case where there was 
"(20t7l 2 sec 629 
• (2011 l 2 sec 682
SAGAR PANDURANG DHUNDARE v. KESHAV AABA PATIL 
27 
AND OTHERS [KURIAN, J.] 
an allegation of encroachment upon a substantial part of a street by the 
A 
appellant which was causing inconvenience to the users of the street. 
Hari Ram (supra) does not relate to interpretation of a statute dealing 
with election to a public office or disqualification on the ground of 
encroachment. Furthermore, it does not deal with the question of whether 
a legal heir can be considered an encroacher. Thus, the reliance on Hari 
B 
Ram (supra) is misplaced in the light of the present case. 
14. As we have already noted above, the duty of the cou11 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 coui1 can also 
·traverse to an extent to sec what is decipherable but not to the extent of 
laying down something desirable according to the court if the legislative 
C 
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. 
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 D 
land or public property, ji·om becoming member of the Panchayat 
or lo 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 
E 
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. 
. 
16. Jn 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. 
17. The impugned judgments arc set aside and the appeals are 
disposed of as above. 
18. There shall be no order as to costs. 
Kalpana _K. Tripathy 
Appeals disposed of. 
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