Person Who Remains In Occupation Of An Encroached Property Disqualified From Being Member Of Panchayath, SC Overrules Its Earlier Judgment

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 Supreme Court, overruling its earlier decision, has held that a person who shares an encroached property by residing there and there is continuance; he/she has to be treated as disqualified from being a Member of Panchayat.

Three-Judge Bench comprising of Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud in Janabai vs. Additional Commissioner overruled two-judge bench decision in Sagar Pandurang Dhundare v. Keshav Aaba Patil.

The Law

Section 14 of Maharashtra Village Panchayat Act, 1958 reads: “No person shall be members of a Panchayat continue as such, who (j-3) has encroached upon the Government land or public property.”

Background

Janabai, who was elected as a member of Panchayat was disqualifying for continuing as a member of the Gram Panchayat) on the ground that there has been an encroachment upon the government land since 1981 by her father-in-law and husband and she is using the said land. The High court had also upheld the disqualification.

Before the Apex court, these orders were assailed, placing reliance on Sagar Pandurang Dhundare Judgment.

Sagar Pandurang Dhundare Judgment

In November 2017, the two-judge bench headed by Justice Kurian Joseph had observed that only the original encroacher, who has encroached upon the government land or public property, is liable to be disqualified, and not his family member.

Sagar Pandurang Dhundare restricts meaning of ‘person’

The bench noted that, in Sagar Pandurang Dhundare, the two-judge bench had referred to various Bombay High court judgments on this issue. In this judgment, the bench reproduces passages from those judgments and particularly notes decision of a division bench of Bombay High court in Devidas Surwade v. Commissioner, Amravati. It also noted that this decision was followed by another bench of Bombay High court in Parvatabai v. Commissioner, the SLP against which was dismissed by the Apex court in January 2016.

At this juncture, the bench remarks: “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.”

The bench then examined the correctness of decision in Sagar Pandurang Dhundare and observed: “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.“

Referring to Sections 10, 11 and 53 of the Act, the bench upheld the view expressed by Bombay High court in Devidas Surwade and observed 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.

Occupier Of Encroached Property Disqualified

Overruling the judgment in Sagar Pandurang Dhundare, the bench observed: “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 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.”

Full Judgment