JUDGMENT : Narasimham, C.J. - This is a petition, in revision, against the judgment of Srimati Shanti Dei, Magistrate, First Class, Puri convicting the Petitioner for contravention of Rules 6 and 7 of the Orissa Terminal Tax Collection Rules, 1951 and sentencing him to pay a fine of Rs. 5/- under Rule 10 of the said Rules. The allegation against the Petitioner was that being the owner of bus No. ORC-1141 plying during the months of October, November and December, 1960 between Bhubaneswar, Puri and Konarak he collected a sum of Rs. 56.24, Rs. 55.06 and Rs. 45.69 (totalling Rs. 156.99 Ps.) during the said period as terminal tax from the taxable passengers travelling in the bus, but omitted to deposit the sum in the Lodging House Fund, Puri, as provided for in the Rules. 2. The Petitioner pleaded not guilty, but the principal witness against him is P.W. 2 who is a Ticket Checker of this Lodging House. He stated that he and a companion of his used to check the public service vehicles and make the necessary entries in the Terminal Tax Register maintained under the said Rules. He has also proved on extracts from the Register (exts. 2, 3 and 4) in support of his statement about the collection of the aforesaid amounts by the Petitioner from the passengers and the omission to deposit the same to the credit of the Lodging House Fund. He has been believed by the learned Magistrate. So far as this question of fact is concerned, I see no reason to take a different view. 3. The said Rules were made by the State Government in exercise of the powers conferred on them by Sub-section (2) of Section 23 of the Bihar and Orissa Places of Pilgrimage Act (Bihar and Orissa Act II of 1920). Clause (2) of Section 2 of that Act defines a "Magistrate" as a District Magistrate and any other Magistrate of the First Class specially empowered by the State Government to perform the functions of a Magistrate under that Act. Section 23 confers on the State Government the power to make Rules and Sub-section (3) of that section says: The Provincial Government may, in making any rules under this section, direct that the breach thereof, shall be punishable with fine not exceeding Rs. 50/- and in case of a continuing offence a further fine not exceeding Rs. Section 23 confers on the State Government the power to make Rules and Sub-section (3) of that section says: The Provincial Government may, in making any rules under this section, direct that the breach thereof, shall be punishable with fine not exceeding Rs. 50/- and in case of a continuing offence a further fine not exceeding Rs. 20/- for each day after written notice of the offence from the Magistrate. 4. Mr. Misra appearing for the Petitioner first contended that the power to impose a daily fine conferred by Sub-section (3) of Section 23 of the Act can be exercised only by a Magistrate as defined in the Act, that is to say by a First Class Magistrate "specially empowered" by the State Government. He urged that there was no evidence to show that Shrimati Shanti Dei was specially empowered under the provisions of the Act and that consequently the imposition of a daily fine was illegal. It does not appear, however, that either during trial or when the matter was taken up in revision before the Sessions Judge or even in the grounds of the revision petition before this Court it was mentioned that Shrimati Shanti Dei was not specially empowered under the provisions of this Act. This being a mixed question of law and fact, the Petitioner ought to have raised this objection at the earliest stage so that the State Government may be in a position to (sic) out the appropriate notification, if any, empowering Shrimati Shanti Dei to exercise the functions of a Magistrate under this Act. As this point was not taken even in the grounds of the revision petition, Mr. Misra cannot be permitted to raise it at this belated stage. 5. Mr. Misra then contended that in pursuance of Sub-section (3) of Section 23 of the Act the condition precedent to the imposition of daily fine is the service of written notice of the offence by the Magistrate concerned and this was totally wanting in this case. 6. It is true that Sub-section (3) of Section 23 makes it clear that after convicting a person for breach of the provisions of any of the Rules, the Magistrate may give a written notice of the continuing offence, if any, and then impose a daily fine not exceeding Rs. 20/-. Here, however, the learned Magistrate in her judgment after imposing a fine of Rs. 20/-. Here, however, the learned Magistrate in her judgment after imposing a fine of Rs. 20/- on the Petitioner for the main offence further directed him to pay the entire amount in default on or before 31-7-1963 failing which, she directed, that he will have to pay a daily fine of Rs. 2/-, till the date of payment. It would certainly have been much better if a separate notice specifying the exact amount to be paid had been served on the Petitioner before daily fine was imposed. But as the judgment was pronounced in open Court in the presence of the Petitioner, it may be reasonable to infer that the Petitioner was given a notice of the fact that he must pay the entire amount in default on or before 31-7-1963. It is true that the amount in default was not specified in that portion of the order of the Magistrate, but in the body of the main judgment the learned Magistrate has mentioned the amount as stated by P.W. 2 whom she has believed. There was therefore no ambiguity about the exact amount due. 7. But as the matter has been delayed due to the filing of the revision petition before the Sessions Judge and then before this Court, I think that portion of the Magistrate's order regarding imposition of daily fine requires slight modification. 8. I would therefore modify it as follows The sentence of Rs. 5/- for the offence under Rule 10 of the Orissa Terminal Tax Collection Rules 1951, is maintained; in default of payment of fine the Petitioner shall undergo simple imprisonment for two days. He is given time to pay the entire amount in default, viz. Rs. 156.99 Ps. by the 16th November, 1964 failing which he will have to pay a daily fine of Rs. 2/- until the entire amount is paid. Subject to this modification, the revision petition is dismissed. Final Result : Dismissed