AHEMAD HYDROS Vs. ALWAYE MUNICIPALITY

JUDGEMENT

(1.) This petition is by the accused in C.C. 723 of 1124 on the file of the Second Class Magistrate, Alwaye, to revise the order passed by the learned Magistrate on 30.3.1950 that the prosecution started by the Alwaye Municipality was maintainable. The petitioner had taken on contract the right to collect the gate fees of the Municipal Market for a period of one year from 9.2.1123. He had executed an agreement for the purpose and registered the same. He was to pay the Municipality Rs. 5109 the amount agreed, in certain instalments. He paid some of the instalments and defaulted to pay the balance for certain reasons of which I am not concerned at present. The balance due, according to the Municipality comes to Rs. 1830 and odd. To realise the same the Municipality has filed the present complaint under S.365 of the District Municipalities Act XXIII of 1116 read with R.32(2) of Schedule II. The accused contended that such a prosecution would not lie. After hearing arguments of both sides the Magistrate held that the prosecution is perfectly legal and competent for under S. 365 any amount due to the Municipality was recoverable by resorting to a prosecution of the defaulter under R.32(2) of the Schedule II.

(2.) It is not clear from the order of the Magistrate under what category he can bring the amount in question. When asked the learned Advocate appearing for the Municipality stated that this sum would be on account of "rent" mentioned there. This is amount due on account of a contract entered into by the accused with the Municipality for the collection of the market cess. It can never be "rent" contemplated under that section. The corresponding provision in the Madras District Municipalities Act IV of 1884 as amended by Act III of 1897 was in S.269 which ran as follows:-

(3.) In the case Abdul Azeez Sahib v. Cuddapah Municipality, ( ILR 26 Mad. 475 ) it had been held by Sir Arnold While Chief Justice, that money due under a contract entered into with a Municipality for the right to collect tolls in consideration of a money payment does not fall within any of the provisions of S.269 of the District Municipalities Act, 1884 and a contractor who fails to pay what is due under such a contract cannot be convicted and fined under that section. As was done here, the Pleader who appeared in that case also had argued that this amount would be "rent" within the meaning of that section. That was repelled an In re Jagu Santram ( ILR 22 Bom. 709 ) was quotted in support of that position. This question was again considered by the Madras High Court in Mohamad Ibrahim Sahib v. Municipality of Anakapalli ( 6 CriLJ 702 ) where also it was held that toll gate kist is money due under a contract and that a prosecution for default of payment of the same will not lie. The same is the dictum in Mahahab Ali Khan v. President, Taluk Board, Kurnool ( AIR 1924 Mad. 898 (2)). The counter petitioner's learned Advocate quoted United motors (Coimbatore) Ltd. v. Palaghat Municipal Council ( AIR 1943 Mad. 122 ). That has no application to the facts of this case. Under the Motor Vehicles Rules all buses entering and leaving the town were required to proceed to and start from the Municipal bus stand. The United Motors (Coimbatore) Ltd., observed this rule and entered the said bus stand. The Municipality had fixed certain fees for the bus stand. The company contended that their buses had to enter the bus stand by force of the Motor Vehicles Rules so that the involuntary use made under compulsion did not make them liable to pay the cess. This cess was held to be liable to be realised by distraint. What the company had to pay was Municipal cess and that could be realised by distraint or even by starting a criminal prosecution against the defaulter. This has nothing to do with the case in hand. I hold therefore that the amount due under a contract for the collection of market cess will not come under any of the Municipal dues mentioned in S. 365 so that the prosecution now started is incompetent. The lower court will forthwith drop the proceedings against the accused and discharge him.