SARDAR KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.