1. Disqualification of Panchayat members under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1958 — Dispute over whether beneficiaries of encroachment are considered encroachers. (Para 1 , 2 )
Back
Next 
2017 Supreme(SC) 1096
SUPREME COURT OF INDIA
Kurian Joseph, R. Banumathi, JJ.
Sagar Pandurang Dhundare - Appellants
Versus
Keshav Aaba Patil and Others - Respondents
Civil Appeal Nos. 2306-2307 of 2017 With Civil Appeal Nos. 5132-5133 of 2017
Decided On : 13-11-2017
Important Points
IMPORTANT POINT
A member can be disqualified for his own acts of encroachment, not family members.
A member can be disqualified for his own acts of encroachment, not family members.
Subject
Election Law - Disqualification of Candidates
Act Referred
MAHARASHTRA VILLAGE PANCHAYATS ACT: S.14(1)(j)(3), S.53
Headnote
(a) Maharashtra Village Panchayats Act, 1958 – Section 14 – Legislature not expressly disqualifying a member for acts of his family – Court cannot lay down what is desirable in its own opinion. (Para 11, 14)
(2017) 2 SCC 629 – Relied upon
(b) Maharashtra Village Panchayats Act, 1958 – Section 14 and 53 – Disqualification – Person himself encroaching on public land – Or punished for encroachment – Or evicted from such encroached land – Encroachment by family members – It is for Legislature to look into legislate if deemed desirable. (Para 15, 16)
2013 (2) MhLJ 955; Writ Petition No. 8497 of 2012; 2013(1) MhLJ 455; 2017 (1) MhLJ 102; 2015 (5) MhLJ 238; 2017 (1) MhLJ 79; Writ Petition No. 1660 of 2017 – Referred
(2011) 2 SCC 682 – Distinguished
Facts of the case:
The question arising in this case is whether a family member of the original encroacher can be disqualified, under the Maharashtra Village Panchayats Act, 1958.
Finding of the Court:
A member can be disqualified for his own acts of encroachment, not family members.
Result: Appeals disposed of.
Legal Category Hierarchy
Advocates Appeared:
For the Parties : M.Y. Deshmukh, Yatin M. Jagtap, Shakti Pandey, Vijay Kumar, Ms. Aparna Jha, Sushil Karanjkar, Srikant R. Deshmukh, Sagar N. P. Patil, Vinay Navare, Ms. Gwen Karthika, Ms. Abha R. Sharma, Anurag Kishore, Abdul Gaffar, R. C. Sharma, Braj Kishore Mishra, Advs.
For the Parties : M.Y. Deshmukh, Yatin M. Jagtap, Shakti Pandey, Vijay Kumar, Ms. Aparna Jha, Sushil Karanjkar, Srikant R. Deshmukh, Sagar N. P. Patil, Vinay Navare, Ms. Gwen Karthika, Ms. Abha R. Sharma, Anurag Kishore, Abdul Gaffar, R. C. Sharma, Braj Kishore Mishra, Advs.
Table of Contents
2. Whether the term person in the disqualification provision includes legal heirs or beneficiaries of an original encroacher or is limited to the actual encroacher. (Para 2 , 6 , 10 )
3. Legislative intent is discernible from the Act; where family disqualification was intended, it was explicitly mentioned; courts cannot rewrite statutes to achieve desirable outcomes. (Para 11 , 14 , 15 )
4. Disqualification for encroachment applies only to the person who actually committed the act; it does not extend to family members unless expressly provided by statute. (Para 11 , 15 )
5. Impugned judgments set aside and appeals disposed of. (Para 17 )
6. Does the disqualification for encroachment under Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1958, extend to family members of the original encroacher?
No. The court held that the provision applies only to the person who actually committed the act of encroachment. The legislature explicitly mentions family or group disqualification in other sections, indicating that its absence in this specific provision is intentional. (Para 11 , 15 )
7. Can a court use purposive interpretation to include family members in the definition of an encroacher to prevent conflicts of interest?
No. While courts can interpret provisions to achieve legislative intent, they cannot supply words or rewrite statutes to achieve a desirable outcome if the legislative intent is otherwise discernible from the text used by the law-maker. (Para 11 , 14 )
8. Under what circumstances can a member who is not the original encroacher be unseated regarding encroachment?
A member can be unseated if they have been punished for encroachment under Section 53(1) or if there is a final order of eviction against them under Section 53(2) or (2A). (Para 15 , 16 )
JUDGMENT
Kurian, J. 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:
"14.Disqualifications.- (1) No person shall be a member of a Panchayat, or continue as such, who-
xxx xxx xxx
xxx xxx xxx
(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 first encroached upon the Government property and they continue to occupy the same. The allegation is that their father/grandfather are encroachers and they are 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 judgments of the High Court of Bombay. However there appears to be a conflict between the various decisions of the High Court. In Ganesh Arun Chavan v. State of Maharashtra and others 2013 (2) MhLJ 955, 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:
"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. Therefore, the encroachment must be by the person who is a member and not any third party.
xxx xxx xxx
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 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 Yallubai Kamble v. State of Maharashtra and others, Writ Petition No. 8497
