PILLA RAMASWAMI Vs. PRESIDENT, TALUQ BOARD

JUDGEMENT

(1.) This Criminal Revision Case comes before this Full Bench in the following circumstances. Under Sub-section (1) of Section 164 of the Madras Local Boards Act, the Taluq Board of Tadepalligudam imposed a penalty of Rs. 50 upon the petitioner in respect of an alleged encroachment in the village of Tadepalligudam. He is said to have erected a shed without permission upon ground belonging to the Taluq Board. The petitioner did not pay the penalty and accordingly the matter was referred to the Magistrate's Court under Section 221 which provides that, in default of payment of such a sum, it may be levied under the warrant of a Magistrate. At the hearing of the case the point arose whether the Magistrate was competent to go into the question whether the alleged encroachment was true and, therefore, justified the imposition of the penalty; and following certain decisions, the Court came to the conclusion that it was not open to it to enquire into an issue of this character and accordingly although it recorded the evidence it refused to give an opinion upon the matter and directed that a warrant should issue for the recovery of Rs. 50 together with Rs. 10 as costs. The petitioner thereupon presented this Criminal Revision Case, which came in the first instance before Jackson, J. That learned Judge found that there were conflicting decisions with regard to the question at issue, and, deeming it to be an important point which frequently arises, directed that the matter should be placed before the Chief Justice for orders.

(2.) The case-law upon this subject has been laid before us and opens with the case of Ramachandran Servai V/s. President, Union Board, Karaikudi (1925) I.L.R. 49 M. 888 : 49 M.L.J. 356 decided by Wallace and Devadoss, JJ. They were of the opinion that, if a contention of this kind were allowed to prevail, the Magistrate would be constituted as a sort of appellate authority over the Local Board in the matter of deciding whether or not there had been in fact an encroachment; and they pointed out what inconveniences "would arise from such a situation. Nor did they think that the language of Section 221 would justify such a construction. This case was followed by Devadoss, J., sitting alone, in Rangesa Rao V/s. Swaminatha Aiyar (1927) 27 L.W. 320. and again by myself in Narayana Aiyar V/s. Subramania Chetty (1926) 39 M.L.T. 205. So far as my recollection of that case goes, no cases contra were cited before me and, sitting singly, I was of course bound to follow the ruling of a Bench. In the 1926 Madras Weekly Notes volume will be found two succeeding cases, Union Board, Paramakudi V/s. Chellasami Tevar (1926) M.W..N. 676 and Syid Mustapha Saheb V/s. Union Board of Kaveri-patnam (1926) M.W.N. 678 decided by Devadoss and Waller, JJ. In the judgments delivered by Waller, J., he was of opinion that under the parallel procedure by which a prosecution is instituted for breach of the law regarding encroachments and which is provided for in Secs.164(2) and 207 of the Act, it was open to an accused person to raise this question of whether the alleged encroachment was indeed an encroachment or not. But he was of opinion also that anomalous though it might be, when the case came before the Court under Section 221 the decision in Ramachandran Servai V/s. President, Union Board, Karaikudi (1925) I.L.R. 49 M. 888 : 49 M.L.J. 356 was right and should be followed.

(3.) The first Bench which seems to have taken a contrary view was in In re Gopayya (1927) I.L.R. 51 M. 866 : 55 M.L.J. 27 where Phillips and Madhavan Nair, JJ., had to deal with circumstances which gave rise to proceedings under Section 221, the petitioner in that case having erected a pandal without the permission of the Union Board. The decision proceeded substantially upon other grounds but both the learned judges, while acknowledging that this point did not really have to be decided, expressed their inability to follow Ramachandran Servai V/s. President, Union Board, Karaikudi (1925) I.L.R. 49 M. 888 : 49 M.L.J. 356. Phillips, J., observes with reference to the alleged inconvenience mentioned by Wallace and Devadoss, JJ., in that decision: The anomaly pointed out by Wallace, J., is that such a view would amount to the Magistrate being set up as a final Judge over the Local Board. When, however, it is remembered that the Board has applied to the Magistrate for the recovery of the dues, it is not open to the Magis Irate to decide summarily and recover the amount without enquiry; and he must be satisfied before he issues the order that such order is correct. If the offender had been prosecuted under Section 219, he would be able to plead that no offence had been committed by him, and therefore on the facts of this case it is difficult to hold that he must be precluded from such a defence because a different form of procedure has been taken against him.