1. This petition has been referred to a Bench owing to the doubt as to the correctness of the decision in Ramachandran Served v. President, Union Board, Karaikudi (1925) I.L.R. 49 M. 888 : 49 M.L.J. 356 expressed in two other cases from this Court in In re Gopayya (1927) I.L.R. 51 M. 866 : 55 M.L.J. 27 and Union Board, Paramakudi v. Chellaswami Thevar (1926) M.W.N. 676. The facts are these: The petitioner owns two motor omnibuses. The Union Board of Tindivanam have provided a stand for buses and have prescribed fees for the use thereof. The fees leviable from the petitioner amount to Rs. 10 for each of his buses. He refused to pay, whereupon the Board took action against him under Section 221 of the Local Boards Act. Before the Magistrate the petitioner contended that the fee was not legally leviable. To that the Board replied that such a contention was not open to him. The Magistrate following Ramachandran Servai v. President, Union Board, Karaikudi (1925) I.L.R. 49 M. 888 : 49 M.L.J. 356 held that he had no jurisdiction to consider the legality of the fee. On the merits, he was of opinion that the fee was legally leviable.
2. With great respect, we think that Rainachandran Servai v. President, Union Board, Karaikudi (1925) I.L.R. 49 M. 888: 49 M.L.J. 356 was wrongly decided. The fee to be paid under Section 221 of the Act must be due to a Local Board 'Under or by virtue of the Act' and it cannot be that the party called upon by the Magistrate to pay it is disentitled from pleading that it is not due under or by virtue of the Act. Take a case under Section 106. The provisions of Sub-section (2) are clear. No toll can be charged unless a table of tolls is put up at the toll-gate. If action is taken against a party under Section 221 to recover tolls, can he not allege and prove that Section 106(2) was not complied with or must he pay and file a civil suit to recover the tolls illegally levied from him? The learned Judges thought it a startling proposition that a Magistrate should be constituted a sort of appellate authority over a Local Board, but the section gives him jurisdiction to decide that the amount charged by the Board is incorrect and there seems no reason, as Phillips, J., pointed out in In re Gopayya (1927) I.L.R. 51 M. 866: 55 M.L.J. 27, why he should not have jurisdiction also to decide that the Board is not entitled to charge anything at all. We are of opinion that it is open to a party appearing before a Magistrate under Section 221 of the Act to allege and prove that the fee claimed is not due from him under or by virtue of the Act.
3. On the merits, we cannot uphold the view taken by the Magistrate. A motor omnibus is a carriage and not a cart within the meaning of the Act. Section 184 allows a Board to construct or provide public landing places, halting places and cart-stands. A stand for omnibuses is neither the first nor the third; nor, in our opinion, is it the second. Halting place is, no doubt, a very general term, which is nowhere defined in the Act, but it appears to us to be meant to cover places like choultries and rest-houses. Assuming that it could include stands for omnibuses, it is by no means clear that the intention of the Act was that Union Boards should, under Section 188, exercise powers over anything but cartstands strictly so called. Section 164 is also relied on, but that section specifically excludes public roads and we are here concerned with a public road. Apart from that, the standing of an omnibus for a few minutes periodically on the land is not the sort of occupation contemplated by the section.
4. The order of the Magistrate is set aside. The amount of fee, if levied, will be refunded.