Govinda Pillai, J.
1. This petition is by the accused in C. C. 723 of 1123 on the file of the Second Class Magistrate, Alwaye, to revise the order passed by the learned Magistrate on 80 8-1950 that the prosecution started by the Alwaye Municipality was maintainable. The petitioner had taken on contract the right to collect the gate fees of the Municipal Market for a period of one year from 9-2-1123. He had executed an agreement for the purpose and registered the same He was to pay the Municipality Rs. 5109 the amount agreed in certain instalments. He paid some of the instalments and defaulted to pay the balance for Certain reasons of which I am not concerned at present. The balance dues, according to the Municipality comes to Rs. 1830 and odd. To realise the same the Municipality has filed the present complaint under Section 365 of the District Municipalities Act XXIX  of 1116 read with Rule 31 (2) of Sch. II. The accused contended that such a prosecution would not He. After hearing arguments of both sides the Magistrate held that the prosecution is perfectly legal and competent for under Section 365 any amount due to the Municipality was recoverable by resorting to a prosecution of the defaulter under B. 31 (2) of Sch. II. Section S65 reads as follows:
All costs, damages, penalties, compensations, charges, fees (other than school fees), expenses, rents (not being rents for lands and buildings demised by the Municipal Council), contribution and other sums which under this Act or any other law or rules or bye-laws made thereunder, or under any contract in respect of water supply or drainage made in accordance with this Act, the rules or bye-laws are due by any person to the council, may, if there is no special provision in this Act for their recovery be demanded by bill as provided in the rules in Sch. II and recovered in the manner provided therein.
2. It is not clear from the order of the Magistrate under what category he can bring the amount in question. When asked, the learned Advocate appearing for the Municipality stated that this sum would be on account of 'rent' mentioned there. This is amount due on account of a contract entered into by the accused with the Municipality for the collection of the market cess, It can never be 'rent' contemplated in that section. The corresponding provision in the Madras District Municipalities Act IV  of 1884 as amended by Act III  of 1897 was in Section 269 which ran as follows:
All expenses incurred by the Chairman or the Municipal Council and recoverable by him or them, and all rents (not being rents for vacant lands, or for buildings demised by the Municipal Council under Section 177), fees, tolls and other payments due to the Municipal Council under the provisions of the Act, or under any bye-law made under Section 255 or under any contract made in accordance with Sections 147, 209 or 218, shall, it there is no special provision for their recovery contained in this Act, be recoverable as it they were taxes due to the Municipal Council under this Act.
3. In the case Abdul Azeez Sahib v. Cuddapah Municipality, 26 Mad, 475, it had been held by Sir Arnold White, C.J. that money due under a contract entered into with a Municipality for the right to collect tolls in consideration of a money payment does not fall within any of the provisions of Section 269, District Municipalities Act, 1884 and a contractor who fails to pay what is due under such a contract cannot be convicted and fined under that section. As was dona here, the Pleader who appeared in that case also had argued that this amount would be 'rent' within the meaning of that section. That was repelled and In re Jagu Santram, 22 Bom, 709 was quoted in support of that position. This question was again considered by the Madras High Court in Mohamad Ibrahim Sahib v. Municipality of Anakapalli, 16 Cr. L.J. 702 : (A. 1. R. (3) 1916 Mad 1108), where also it was held that toll gate kist is money due under a contract and that a prosecution for default of payment of the same will not lie The same is the dictum in Mahabab Ali Khan v. President, Taluk Board Kurnool A.I.R. (11) 1924 Mad 893 (2) : (26 Cr. L, J. 261). The counter.petitioner's learned Advocate quoted United Motors (Coimbatore) Ltd. v. Palghat Municipal Council A.I.R. (30) 1949 Mid. 122: (207 I. C. 292). That has no application to the facts of this case. Under the Motor Vehicles Rules all buses entering and leaving the town were required to proceed to and start from the Municipal bus stand. The United Motors (Coimbatore) Ltd., observed this rule and entered the said bus stand. The Municipality had fixed certain fees for the use of the bus stand. The company contended that their buses had to enter the bus stand by force of the Motor Vehicles Rules so that the involuntary use made under compulsion did not make them liable to pay the cess. This cess was held to be liable to be realised by distraint. What the company had to pay was municipal cess and that could be realised by distraint or even by starting a criminal pro secution against the defaulter. This has nothing to do with the case in hand. I hold, therefore, that the amount due under a contract for the collection of market cess will not come under any of the municipal dues mentioned in S 365 so that the prosecution now started is incompetent. The lower Court will forthwith drop the proceedings against the accused and discharge him.