Waller, J.:— The decision in this case must follow the decision in Madura Municipality…Complainant ‘ v. P.M Muthu Balu Chetty…Accused .(1). 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.
3. It seems to me clear that S. 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 S. 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 S. 207 and not to apply under S. 221 for the recovery of the fee for the license. It was argued before the Magistrate, on the assumption that S. 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. President, Union Board, Karaikudi(2). They held that when a Local Board move a Magistrate under Section 221 of the Madras Local Boards Act to recover a penalty imposed for an encroachment under S. 164, the defaulting party could not ventilate before the Magistrate his claim that there was no encroachment at all.
4. Assuming that their view is correct, it seems to me that a completely anomalous position might arise in applying the various provisions of S. 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-Sections 1 and 3 are recoverable by means of a reference to a Magistrate under S. 221 of the Act. Non-compliance with a notice issued under sub-Section (2) renders the defaulter liable to prosecution under S. 207.
5. I do not think that it can possibly be contended that, if and when he is so prosecuted he is debarred from alleging and proving that what he has occupied is not public land. The result then is this, that while such a defence is open to him when he is proceeded against under one part of the section, he is debarred from raising it, if either of the other two parts is used against him. As I have already said, that seems to me to be an entirely anomalous position. If the supposed encrcaeher is called upon to pay a penalty or damages for his encroachment, the only question he can raise is as to the amount or the apportionment of the sum to be awarded against him. If on the other hand, he is prosecuted for refusing to vacate, he is entitled to prove that there was no encroachment at all, in other words, that the penalty or damages, which may already have been levied, were improperly recovered from him.
Devadoss, J.:— I agree, as I am of opinion, that this firm proceeded against need not take out a license under Section 193 of the Local Boards Act, and S. 221 has no application to the present case.
6. Petition dismissed.