UNION BOARD Vs. CHELLASWAMI THEVAR

JUDGEMENT

(1.) The decision in this case must follow the decision in Madura Municipality V/s. Muthu Balu Chetty A.I.R. 1926 Mad. 576. Though the two cases spring out of the different Acts, the provisions by which they are governed are identical. I think that the Magistrate was right in holding that Section 193 of the Local Boards Act did not apply and that respondents were not bound to take out licenses annually. The Revision Petition is therefore dismissed.

(2.) I may add that the Magistrate's order can, in my opinion, be supported on another ground. It seems to me clear that Section 221 of the Act can have no application to a case like this. "Where the President of a Local Board thinks that a person should take out a license under Section 193 of the Act and that person refuses to do so, and carries on his industry without a license the proper course is to prosecute him under Section 207 and not to apply under Section 221 for the recovery of the fee for the license. It was argued before the Magistrate, on the assumption that Section 221 covered the case, that he was not entitled to enter into the question of the legality of the fees sought to be recovered. A decision of my learned brothers Devadoss and Wallace, JJ. has been cited in support of the argument Ramachandra Servai V/s. President, Union Board, Karaikudi A.I.R. 1925 Mad. 1015. They held that when a Local Baard moved a Magistrate under Section 221 of the Madras Local Boards Act to recover a penalty imposed for an encroachment under Section 164, the defaulting party could not ventilate before the Magistrate his claim that there was no encroachment at all.

(3.) Assuming that their view is correct, it seems to me that a completely anomalous position might arise in applying the various provisions of Section 164. That section is divided into three Sub-sections. The first provides for the levy of a penalty for the unauthorized occupation of land set apart for a public purpose. The second empowers the President of a Local Board to serve a notice on the occupier of such land requiring him to vacate. The third makes the occupier liable to pay compensation to the Board-irrespective of the penalty already provided for, if he has caused damage by his occupation to its property, The penalty and the compensation contemplated by sub- Secs.1 and 3 are recoverable by means of a reference to a Magistrate under Section 221 of, the Act. Non-compliance with a notice issued tinder sub- Section (2) renders the defaulter liable to prosecution under Sec. 207.