RAMACHANDRA SERVAI Vs. PRESIDENT, UNION BOARD

JUDGEMENT

(1.) The question for decision in this case is whether, when a Local Board moves a Magistrate under Section 221 of the Madras Local Boards Act (XIV of 1920) to recover a penalty imposed for encroachment, the defaulting party can ventilate before the Magistrate his claim that there was no encroachment at all, and plead such a defence to the case.

(2.) It is obvious that, if petitioner's contention be sound that he is allowed to plead such a defence, the Magistrate is constituted a sort of appellate authority over the Local Board in the matter of deciding whether or not there has been in fact an encroachment; and a wholesale application of such a principle would mean that in all cases of demand by the Local Board for fees, tolls, costs, compensation, damages, penalties, charges, expenses or other sums due to it, the Magistrate, a Judge appointed for the trial of criminal matters, is set up as the final Judge over the Local Board, except in so far as either party may take the matter before a Civil Court.

(3.) This is to our mind a startling proposition, and, unless the wording of the section clearly imports it, we do not accept it. Clause (1923) 45 MLJ 731. of the section clearly lays down that what has to be ascertained by the Magistrate is the "amount or apportionment of the sum." If that is disputed, and that, we take it, is the question that has to be determined under Clause (3). Here petitioner is not disputing as ,to the amount due or its apportionment. He contends that the penalty is not livable at all. We there-fore see no support for the petitioner in the wording of the section.