Janabai vs. Satyabhama

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.4442 OF 2019 (Arising out of SLP(Civil) No.12477 of 2018)

ARJUN BISHT

13:17:20 IST Reason:

JANABAI APPELLANT(S)

VERSUS

SATYABHAMA & ORS. RESPONDENT(S)

O R D E R

Leave granted.

This appeal has been filed against the order of the High Court dated 16.04.2018 by which the writ petition filed by the first respondent was allowed relying on the judgment of this Court in Sagar Pandurang Dhundare Vs. Keshav Aaba Patil and others reported in (2018) 1 SCC 340. At the time of entertaining this appeal on 18.05.2018, the operation and effect of the impugned order was stayed by this Court.

Learned counsel for the appellant submitted that the order of this Court, which was basis of passing of the order of the High Court, has now been over ruled by three Judge Bench of this Court in Janabai Vs. Additional Commissioner, C.A. No.6832 of 2018, decided on 19.09.2018. In paragraph 33 of the judgment this Court laid down the following: Digitally signed by Date: 2019.04.27 Signature Not Verified

"33. We may note here with profit that the word

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'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."

Learned counsel appearing for the respondent contends that there was no encroachment at all. He referred to reports submitted to the Additional Collector. There is categorical findings regarding

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the encroachment and only reason given by the High Court in allowing the writ petition was the judgment of this Court in Sagar Pandurang Dhundare (supra). No other argument was either raised or adverted to by the High Court.

In view of the aforesaid, we are of the view that the judgment of the High Court deserves to be set aside relying on three Judge Bench judgment in Janabai (supra).

Appeal is allowed, writ petition filed in the High Court stands dismissed.

...................J. (ASHOK BHUSHAN)

...................J. (K.M. JOSEPH)

New Delhi April 26, 2019 JANABAI Petitioner(s) VERSUS SATYABHAMA & ORS. Respondent(s) (MM ) Date : 26-04-2019 This petition was called on for hearing today. CORAM : HON'BLE MR. JUSTICE ASHOK BHUSHAN HON'BLE MR. JUSTICE K.M. JOSEPH For Petitioner(s) Mr. Shivaji M. Jadhav, Adv. Mr. Brij Kishor Sah, Adv. Ms. Qurratulain, Adv. Mr. Nicholas Choudhury, Adv. M/S. S.M. Jadhav And Company, AOR For Respondent(s) Mr. Shirish K. Deshpande, AOR Mr. Nishant Ramakantrao Katneshwarkar, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted. Appeal is allowed in terms of the signed order. Pending application(s), if any, stands disposed of. (ARJUN BISHT) (RENU KAPOOR) COURT MASTER (SH) BRANCH OFFICER

(Arising out of impugned final judgment and order dated 16-04-2018 in WP No. 6568/2017 passed by the High Court Of Judicature At

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s).12477/2018

Bombay At Aurangabad)

(signed order is placed on the file)