SAGAR PANDURANG DHUNDAREversusKESHAV AABA PATIL AND OTHERS

                        [2017) ll S.C.R. 13



              SAGAR PANDURANG DHUNDARE                                  A
                                    v.
              KESHAV AABA PATIL AND OTHERS
               (Civil Appeal Nos. 2306-2307 of2017)
                       NOVEMBER 13, 2017                                B

        [KURIAN JOSEPH AND R. BANUMATHI, JJ.]
      Maharashtra Village Panchayat Act, 1958:
      ss.14(1)()-3), 53(1), (2) and (2A) - Disqualification of
encroacher on Government land or public property - From becoming C
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 D
- 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 F
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 G
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,
                                                                        H
                               13
14            SUPREME COURT REPORTS                     [2017] 11 S.C.R.


A    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
B
     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
c    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
D
     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]
E          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
F    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
G    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
H
SAGAR PANDURANG DHUNDARE v. KESHAV AABA PATIL                        15
                AND OTHERS

or to continue t1s such". The person, who has encroached upon        A
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       B
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   C
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                 D
      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.                E
      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                         F
[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          G.

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
                                                                     H
16             SUPREME COURT REPORTS                         (20 l 7] l l S.C.R.


A          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2306-
     2307 of2017
           . From the Judgment and Order dated J9.07.2016 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
B                                      WITH
           C.A. Nos. 5132-5133 of2017.
           Makarand D. Adkar, Vijay Kumar, Shrikrishna Ganbavale,
     Ms. Apama Jha, M. Y. Dcshmukh, Shakti Pandey, Sushi! Karanjkar,
C    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
D          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:
E          "14.Disqµalifications.-(I) No person shall be a member of a
           Panchayat, or continue as such, who--
                   xxx                       xxx                            xxx
                   XXIX                      xxx                            xxx
F          (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
G    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                              17
               AND OTHERS [KURIAN, J.]

a conflict between the various decisions of the High Court. In Ganesh          A
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:
                                                                               B
         "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            c
         membernnd not any third party.
         xxxxxxxxx
         12. The Legislature has taken care and wherever the concept of
         family or joint residence has to be applied, specific provision in D
         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 E
                                    a
         or by person belonging to 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 F
         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 G
         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
                                                                               H
18             SUPREME COURT REPORTS                           [2017] l l S.C.R.


A          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
B
           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
c    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)
D    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
E          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.
F          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
G          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
H
SAGAR PANDURANG Dl:IUNDARE v. KESHAV AABA PATIL                              19
           AND OTHERS [KURIAN, J.]

      provided  for by the Legislature, the omission or defect is of the A
      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 B
      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
                                                                             c
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 D
      be, that (sic) would disqualify them. It cannot be that somebody
      else commits an act ofcncroachment even if he is a Member of
      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 E
      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 G
      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
                                                                             H
20             SUPREME COURT REPORTS                            [2017] ll S.C.R.


A           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
B    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
c           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
D           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
E
            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
F    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
G    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.
H    '2015 (5) Mh. L.J. 238
SAGAR PANDURANG DHUNDARE v. KESHAV AABA PATIL                                 21
           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 B
     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. c
     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
     and Kanchan A tigre (supra) which interprets the expression
     "person" in a narrow sense should be preferred cannot be accepted. D
     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 ofjudgment 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 E
     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."
                                                                          F
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
an encroachment over the Government land. The Court analysed the              G
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.
                                                                              H
22      SUPREME COURT REPORTS                            [2017] II S.C.R.


A    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
B
     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
c    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.
          XXJ!                           xxx                             xxx
D    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
E    "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,
F    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
G    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
H
    SAGAR PANDURANG DHUNDARE v. KESHAV AABA PATIL                                  23
               AND OTHERS [KURIAN, J.]

         cannot escape from the clutches of disqualification under Section         A
         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             B
         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       c
         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                     D
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.              E
         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
                                                                                   F
         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      G
         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                                                  H
24             SUPREME COURT REPORTS                          (2017] 11 S.C.R.



A           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
B
            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
c    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)
D    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,

E              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
F
               (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,
G           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
H
SAGAR PANDURANG DHUNDARE v. KESHAV AABA PATIL                                25
           AND OTHERS [KURIAN, J.]

      conviction. be punished with fine, which may extend to fifty rupees.   A
      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 B
      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
                                                                             c
      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 D
      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),      E
      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.]"           F

                                                    (Emphasis supplied)
       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             SUPREME COURT REPORTS                             (2017] l l S.C.R.



A    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
B
     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
c    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
D
     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
E    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
F
     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.
G
           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
H    • (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          F
 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.
                                                                                   G
       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.