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.
4. Under Section 164 the petitioner is "bound" to pay such sums as may be demanded by the Local Board by way of penalty, which sum "may be recovered in the manner hereinafter provided, "i. e., as in Section 221. This makes it quite clear that Section 221 only applies to the manner of recovery and Hoes not re-open the question whether the petitioner is bound to pay. Petitioner is not able to refer us to any reported case directly in support of his view. The case In re Smith (1923) 45 MLJ 731 was a case of prosecution of a person who had erected some machinery without permission of the Commissioner of Madras City Municipality, and thus was said to have contravened Section 288 of the Madras City Municipal Act (IV of 1919). There this High Court went into the question of whether such permission was required in the case and decided that it was not. We do not think this can throw any light on the proper interpretation of Sections 164 and 221 of the Local Boards Act. The same learned Judge has held in a case In re Krishnaswami (1924) 48 MLJ 132. that, in a prosecution for contravention of Section 166(1) of the Local Boards Act, it was not open to the accused to plead that the motor-bus license ought not to have been refused by the President of the Local Board. Another learned Judge of this Court has taken a similar view in a case Chairman, Municipal Council, Chicacole v. Seetharamayya Naidu (1924) 21 L W 280 a case of disobedience of a notice under Section 219(1) of the Madras District Municipalities Act (V of 1920).
5. We find no support for the petitioner's contention in these cases or any others cited before us. We dismiss this petition.