1. The order of the Magistrate is right in the light of the decision in Ramachandran Servai v. President, Union Board, Karaikudi : (1925)49MLJ356 to which I was a party and I adhere to the view I took in that case with reference to Section 221(1) of the Local Boards Act. I refrain from expressing any opinion on the other points dealt with in my learned brother's judgment as they do not arise for decision in this case.
2. The petition is dismissed.
3. This case raises a question as to the meaning of Sections 164(1) and 221 of Madras Act XIV of 1920. Petitioners were given notice under Section 161(2) of the Act to remove a pandal erected by them on certain land, which has been alleged to have been set apart for public purposes and to belong to the Union Board of Kaveripatnam. They did not comply with the notice and should have been prosecuted* under Section 164(2). The Board, however, elected to proceed under sub Section (1) and demanded from petitioners a penalty of Rs. 250. That sum not having been paid, a reference was made to a Magistrate under Section 221 of the Act. Before the Magistrate petitioners attempted to question the legality of the demand, contending that the land did not belong to the Board. The Magistrate held that it was not open to him to consider the legality of the demand and ordered the petitioners to pay the penalty. In doing so, he followed a decision of my learned brother and Wallace, J., which is reported as Ramachandran Servai v. President, Union Board, Karaikudi : (1925)49MLJ356 .
4. I have already had occasion to consider that decision and then said, that, if it were right, the procedure provided by Section 164 was likely to create a wholly anomalous position. Three remedies are prescribed by that section for the unauthorised occupation of land set apart for public purposes. The first empowers a Local Board to demand a penalty which the occupier is 'bound to pay'. The third makes the occupier liable to pay compensation to the Board, if his occupation has caused damage to its properties. The second enables the Board to prosecute the occupier before a Magistrate, if he, after notice to remove the encroachment, fails to remove it. The first and the third remedies are enforceable under Section 221 of the Act. The effect of my learned brother's decision is that, when a Board resorts to that section, the occupier cannot plead that he has not been guilty of an encroachment. If the application is with reference to Section 164(1) he must pay whatever has been demanded by the Board. If it has been made with reference to Sub-section 3, the only question he can raise is as to the amount and apportionment of the compensation to be awarded. In other words, even where there is a genuine dispute between him and the Board as to the character of his occupation, he is debarred from raising it in defence to an application under Section 221. If that be so, can it be said that he is barred from making such a defence, when he is prosecuted under Sub-section (2). If he cannot, the position seems to me to be wholly anomalous. A defence which is open to him, when he is prosecuted, is denied him, when the Board demands a penalty from him.
5. I do not myself see how the defence can be denied him, when he is prosecuted under Section 164(2). I observe that Wallace, J., in Or. M.P. No. 59 of 1926 expressed the view with reference to Section 159 of the Act, which provides for the removal of encroachments that it was not open to a Magistrate, in a prosecution under that section to consider whether or not there was in fact an encroachment. That, however, is not what I have now to consider. The question at issue is whether where an application has been made under Section 221 for collection of a penalty demanded under Section 164(1), the other party can be heard to say that the demand is illegal. On that question, I have come to the conclusion that the decision in Ramachandran Servai v. President, Union Board, Karaikudi : (1925)49MLJ356 is correct. Under Section 164(1) the occupier is 'bound to pay' whatever the Board may demand by way of penalty. Where an application is made under Section 221 for collection of the penalty there cannot, as far as I can see, be any dispute as to the amount and all that the Magistrate has to do is to collect the penalty demanded.
6. There is no provision resembling Section 164(1) and Section 221 of the Local Boards Act to befound in any other Madras Act. There is a provision in Section 349 of the District Municipalities Act which is somewhat analogous to Sub-section 3 of Section 164, but it differs in so far as it lays down that compensation for damage to Municipal property shall be levied only after the encroacher has been convicted. That is reasonable enough. Sub-section (1) of Section 164, as it has been used in this case, seems to me to be the reverse of reasonable.
7. There appears to be a bona fide dispute whether the land in question is public property or not. The Board decides the dispute in its own favour and proceeds to demand a penalty equal to the maximum fine that a Magistrate could have imposed in a prosecution under Section 164(2). And petitioners have to be told that there is no remedy but to pay and to file a suit. If, as I think, a defence on the merits would have been open to them, had they been prosecuted under Section 164(2), the position is, in my opinion, completely anomalous. That, however, is the business of the Legislature and not mine.
8. The revision petition must be dismissed.