Union Board vs Chellaswami Thevar and Others

Waller, J.—The decision in this case must follow the decision in Madura Municipality v. Muthu Balu Chetty AIR 1926 Mad. 576. 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.

I may add that the Magistrate''s order can, in my opinion, be supported on another ground. It seems to me clear that Section 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 u/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 u/s 207 and not to apply u/s 221

for the recovery of the fee for the license. It was argued before the Magistrate, on the assumption that Section 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 AIR 1925 Mad. 1015. They held that

when a Local Baard moved a Magistrate u/s 221 of the Madras Local Boards Act to recover a penalty imposed for an encroachment u/s 164, the

defaulting party could not ventilate before the Magistrate his claim that there was no encroachment at all.

Assuming that their view is correct, it seems to me that a completely anomalous position might arise in applying the various provisions of Section

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 u/s 221 of, the Act. Non-compliance with a notice issued tinder sub-Section (2) renders the defaulter liable to prosecution u/s 207.

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 encroacher 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, ho is prosecuted for refusing to vacate, be 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 u/s 193 of the Local Boards Act, and Section 221 has

no application to the present case.