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 the 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, compensations, 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 minds a startling proposition, and, unless the wording of the section clearly imports it, we do not accept it. Clause 1 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 the petitioner is not disputing as to the amount due or its apportionment. He contends that the penalty is not livable at all. We, therefore, see no support for the petitioner in the wording of the section.
4. Under Section 164 the petitioner is 'bound' to pay such sum 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 does not re-open the question whether the petitioner is 'hound' tapay. Petitioner is not able to refer us to any reported case directly in support of his view. The case In re Smith 81 Ind. Cas. 72 : 45 M.L.J. 731 : 18 L.W. 879 : 33 M.L.T. 185 : A.I.R. (1924) (M) 389, was case of prosecution of a person who had erected some machinery without the 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 Krishna swami Pillai 86 Ind. Cas. 57 : A.I.R. (1925) (M) 476 : 26 Cr. L.J. 681, 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 motorbus 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. Gajireddi Seetharamayya Naidu 90 Ind. Cas. 152 : 21 L.W. 280 : A.I.R. (1925) (M.) 584 a case of disobedience to a notice under Section 219(1) of the Madras District Municipalities Act V of 1920.
5. We find no support for petitioner's contention in these cases or any others cited before us. We dismiss this petition.