C.M. Lodha, J.
1. This case involves interpretation of Section 12 of the Rajasthan Religious Buildings and Places Act, No. 18 of 1954, which will hereinafter be referred to as 'the Act'.
2. The following question has been referred to Division Bench by Kan Singh J., whether the word shall' occurring in the words 'shall direct that any work which shall have been constructed in contravention of the provisions of this Act or of any permission granted thereunder shall be removed so as to restore the building or place in question to its original condition should be construed as 'may'. The circumstances in which this question has arisen may be set out briefly as follows:-
The Station House Officer, Police Station, Malasisar, District Jhunjhunu, filed a complaint against Sardar Khan and five others under Section 6 read with Section 11 of the Act in the Court of Sub-divisional Magistrate Jhunjhunu on 7-5-1968 alleging that the accused bad constructed a mosque in village Dabri, District Jhunjhunu without first obtaining the written permission of the Collector as required by Section 6 of the Act and had thereby committed an offence under Section 11 of the Act. It was, therefore, prayed that the accused may be suitably punished for having committed this offence. After recording the evidence of the parties the learned Magistrate found that all the five accused had committed offence under Section 6 read with Section 11 of the Act, and consequently he convicted them for the said offence and sentenced them to pay a fine of Rs. 25/- each, and in default of payment of fine to undergo simple imprisonment for 15 days each. It was further directed by him that the mosque constructed in contravention of the provisions of the Act shall be removed so as to restore the place to its original condition.
3. Dissatisfied with the order of the learned Magistrate the accused filed a revision application before the Sessions Judge, Jhunjhunu who made a reference to this Court by his order dated 18-5.1965 that the conviction and sentences passed by the learned trial Court be set aside. This reference was partly allowed by Kan Singh J. (in Chambers) and the conviction and sentences passed against the other four accused except Sardar Khan were set aside. The conviction and sentence awarded to Sardar Khan were, however, maintained. Sardar Khan thereafter presented a review application before this Court by which it was prayed inter alia that the order of the learned Sub-divisional Magistrate in so far as he directed the removal of the mosque be Bet aside. When this application came up for dis. posal before Kan Singh J., he held that there was no substance in the review application so far as the conviction of Sardar Khan was concerned. However, he felt that so far as the question of removal of mosque was concerned the matter did require consideration and therefore he issued notice to the Government Advocate and after hearing the learned Counsel for the petitioner as well as the Government Advocate he has made this reference to a larger Bench for decision of the question Bet out above.
4. We have heard Shri Tibrewal learned Counsel for the petitioner Sardar Khan, and Mr. S.K. Tiwari. Deputy Government Advocate on behalf of the State. It is urged by the learned Counsel for the petitioner that the use of the word 'shall' does not always mean that the enactment is obligatory or mandatory and bearing in mind the context in which the word 'shall' occurs in Section 12, and other relevant circumstances, it should be construed as parmissible and not obligatory. In order to appreciate the point canvassed before us it would be proper to reproduce Section 12 in extenso:
12. Removal of unauthorised work:
(1) The Court making an order of conviction for any offence under Section 11 shall direct that any work which shall have been constructed in contravention of the provisions of this Act or of any permission granted there, under shall be removed as to restore the building or place in question to its original condition.
(2) In case of non-compliance with a direction made under Sub-section (1) the Court shall cause such compliance to be made through a Police Officer nor below the rank of Sub-Inspector at the cost of the defaulter in the prescribed manner.
There is no doubt that on the face of it Section 12 appears to be mandatory, inasmuch as it uses the word 'shall.' The use of the word 'shall' raises a presumption that the particular provision is imperative but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences following from such construction. There are numerous cases where the word 'shall' has been construed as merely directory. In this connection the following quotations from Crawford on 'Statute Constructions,' Article 261 at page 516 is pertinent:
The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it one way or the other.
In State of U.P. v. Manbodhan Lal AIR 1967 SC 912, their Lordships were pleased to observe:
Hence, the use of the word 'shall' in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding would be invalid.
It is needless to multiply the authorities which uniformly hold that the word 'shall' is ordinarily mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands and the Court may ascertain the real intention of the legislature by carefully examining the whole scope of the statute. As observed by their Lordships of the Supreme Court in Raza Buland Sugar Co. v. Municipal Board, Rampur : 1SCR970 :
The question whether a particular provision of a statute which on the face of it appears mandatory-inasmuch as it uses the word 'shall' as in the present case-or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other; the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.
5. Thus it would be clear that no general rule can be laid down for deciding the question whether a particular provision is directory or imperative and even though in a particular case the legislature may have used the word 'shall' the determining factor for deciding the question still depends upon the object and intention of the legislature in making the provision and the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other. learned Counsel for the petitioner also invited our attention to another decision of their Lordships in State of M. P. v. Azad Bharat Finance Co. : 1967CriLJ285 in which their Lordships laid down three teats for determining whether a particular provision is permissive or obligatory
6. First is-if a statute leads to absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.
7. The second test laid down by their Lord-ships, is that if it is a penal statute, it should be construed in such a way that a person who has not committed or abetted any offence should not be visited with a penalty.
8. The third and the last test laid down by their Lordships is that as far as possible-such a meaning should be given to a statute as may not result in striking down the provision as imposing unreasonable restrictions under the provisions of the Constitution.
9. This brings us to the examination of the facts and circumstances of the present statute in the light of what has been stated above as-to the criteria for determining whether a provision in a statute is mandatory or directory. The Preamble to the Act runs as under:
Whereas with a view to avoiding a breach of the public peace and tranquillity likely to arise from disputes between different sections of the people of Rajasthan it is expedient to regulate the construction of public religious buildings and restrict the use of public places for religious purposes; it is hereby enacted as follows:
10. It would also be convenient here to examine some of the relevant provisions of the Act to find out the object of the statute in making the provision. Section 4 inter alia contains the definition of the words ''public' and 'religious' Section 6 deals with the procedure to be followed before a person starts construction of any public religious building or converts any building or place into a public religious building and runs as under:
6. Constructions etc. of public religious buildings-(1) No person shall, without first obtaining the written permission of the Collector-
(a) construct any public religious building, or
(b) convert any private or public building or place into a public religious building:
Explanation.-The temporary use of a building or place for religious purposes on occasions such as Holi, Moharram and the like shall not be deemed to be the conversion thereof into a public religious building.
(2) A person desirous of obtaining permission for any of the purposes mentioned in Sub-section (1) shall first obtain permission from any local authority or officer having jurisdiction over the area where the building or place in question lies and thereafter such person shall apply to the Collector for the requisite permission in the prescribed manner.' Section 7 deals with the procedure to be followed by the Collector when dealing with an application made under Section 6. Section 8 provides for appeals from the orders of the Collector and Section 9 provides that the order passed under the Act shall not be liable to be called in question in any civil court. Section 11 defines the offence under the Act and also pre-scribes punishment. Section 12 provides for a direction for removal of unauthorised construction. Section 18 deals with cognizance of offences under the Act and Section 14 gives power to the State Government to make rules foe the purpose of carrying into effect the provisions of the Act.
11. In exercise of the powers conferred by Section 14 of the Act the Government of Rajasthan has made rules which are called the Rajasthan Religious Buildings and Places Rules, 1957(which will hereinafter be referred to as 'the Rules') which prescribe the forms of applications which may be made under the Act and also lay down the scope of enquiry by the Collector, while dealing with an application for permission for construction of a new religious building.
12. Thus it would be amply clear from the provisions of this statute that the object and intention of the legislature in making this law was that, before obtaining permission for construction of a public religious building, permission must be obtained from the Collector so that there may not be any dispute between different sections of the people and consequent breach of public peace and tranquillity in respect of construction of such building. It has been laid down in the Rules that on presentation of an application under Section 5 or Section 6 of the Act the Collector may consult the Devasthan Department and make enquiries from the local police officers or local authority or neighbours of the buildings as the case may be and if necessary may inspect the site. Thus the Bole object behind the Act is :to maintain security in the State and to avoid the breach of public peace and tranquillity likely to arise from disputes between different sections of the people of the State in respect of constructions of public religious buildings.
13. The object behind Section 12 is also clearly to avoid breach of public peace and tranquillity in such matters and therefore if an unauthorised construction of a public religious building has been made the Court has been given power not only to punish the persons who raised the construction without obtaining permission but also direct removal of such construction so that the public peace and tranquility may not be endangered. The learned Deputy Government Advocate has argued that Section 12 of the Act makes it obligatory for the Magistrate to direct removal of the unauthorised construction because it has been made in contravention of the provisions of the Act irrespective of the consideration whether the construction is likely to cause any breach of public peace and tranquillity On the other hand it is contended on behalf of the petitioner that such an interpretation of Section 12 would not in any way carry out the object of the statute but may-result in serious general inconvenience or injustice to persons in certain cases.
14. After bestowing our careful consideration, we are of the opinion that Section 12 must be read as 'permissive' and not 'obligatory,' and it would depend upon the facts and circumstances of each cage whether the court making an order of conviction for an offence under Section 11 should direct that any construction made in contravention of the provisions of the Act or of any permission granted thereunder shall be removed or not. If this provision were held mandatory the result would be that in all cases in which conviction for an offence under the Act is ordered the construction shall have to be removed even though no dispute is likely to arise between different sections of the people with regard to it and there may not be the least chance of there being any breach of public peace and tranquillity on account of the existence of such construction.
It is not difficult to imagine cases where the' persons incharge of such construction may by negligence or ignorance raise construction of a public religious building without obtaining the requisite permission. The building may have been constructed at a very high cost to which several men of the public may have contributed to their utmost capacity out of sheer respect for religions and further such a construction may not have caused annoyance to any section of the public, yet on the interpretation, suggested by the learned Deputy Government Advocate the building shall have to be removed merely because prior permission of the Collector was not obtained. If we were to hold that in no case the Magistrate has discretion in the matter, and is bound to direct' removal of the building irrespective of the facts and circumstances of a particular case, it would undoubtedly lead to hardship or injustice presumably not intended by the legislature.
It is remarkable that the Act does not provide the period within which such a com. plaint may be filed after the construction has been made and therefore it is possible that in a particular case the construction may have remained in existence for a considerably long period and the different sections of the people may be perfectly happy about it yet it would be open to file a complaint in respect of such construction on the ground that the requisite permission was not obtained. In such a case the persons who have raised construction can justifiably be punished for contravention of the provisions of the Act, but the loss caused by removal of such a construction would be suffered not by the persons who were responsible for raising the unauthorised construction but the real sufferers would be all those innocent people who had made contributions towards the construction of that public religious building.
15. Let us look at the matter from another point of view. In a particular case the Magistrate may feel that the facts of the case do not warrant for a direction for removal of the construction, and the Collector too may feel that allowing the construction to remain as it is, would not at all be objectionable, but if it is held that Section 12 is mandatory then the Magistrate would have no option but to direct the removal of the building and the Collector would be also powerless even though as an authority under the Act he feels that the contruction is not objectionable and need not have been removed. What we mean to say is, that by construing Section 12 as mandatory an irreparable mischief may be done which may entail not only hardship and injustice bat may lead to an absurdity. On the other hand the object of the provisions can very well be carried out if Section 12 is held to be permissible or directory. The Magistrate in that case would have ample discretion to direct the removal of the construction made in contravention of the provisions of the Act, in an appropriate case.
16. We are, therefore, of the opinion that the word 'shall' occurring in the first' clause of Section 12 should be construed as 'may' and Section 12 should be read as 'permissive,' and not obligatory or mandatory.
17. The case may now be laid before the learned single Judge for orders.