Full Judgment
Walsh, J.
1. In this case the applicant has erected a pump and a chabutra connected therewith in what must be taken to be for the purposes of this case clearly established as a public way and street within the meaning of the Municipalities Act. He has erected it outside the house of one Ghasi Ram and, it is suggested, has erected it as a sort of counterblast to the door which that person had obtained permission to open into the street from the Municipal authority.
2. Now it is quite clear that if this is a street, neither the applicant nor any other private individual can erect a pump upon it for his own or even for public purposes without permission of the Municipal authority and in the order I am compelled to make, having regard to the terms of the Statute under which this proceeding has unfortunately been brought, I desire to make it quite clear that nothing in this case must be taken to qualify or discourage the exercise by the Municipal authority of their undoubted right to prevent such an encroachment upon the public highway; but the applicant has been charged, convicted, and fined under Section 87(5) of the Municipalities Act, I of 1900, read with Section 147 of that Act, that is to say, the Municipality issued a notice against him requiring him to remove the pump, being a building erected by him without their sanction and in contravention of the provisions of Section 87. Now it is quite clear that whether or not a pump is a building, as to which I say nothing except that it is a question of fact, and it is conceivable that an elaborate pump might be erected under such circumstances as to come within the description of a building, the pump in question is not a building within the meaning of Section 87 or of anything contemplated by that section. That section clearly deals with new buildings of the nature of dwelling-houses, sheds, or other constructions intended for residence or occupation and intended to be erected by a person either upon his own land or upon some land in respect of which he has a right to set up such erection. It follows, therefore, that proceedings against a person who erects a pump in a public street brought under this section are wholly misconceived.
3. There are various ways in which the mischief complained of in this case may be dealt with. The Municipality under Section 123 of the Municipalities Act can make rules for the control and management of the streets vested in it under Section 55, and anybody who erected a pump or refused to remove a pump which is maintained in breach of one or other of such rules would be liable to penalty under Section 147.
4. Secondly, Ghasi Ram or any other member of the public who either resides there or uses the street, could bring an action in a Civil Court for the removal of the pump by saying that his user of the public way as a member of the public was prejudiced by such pump.
5. This order, however, must be set aside. The fine, if paid, must be refunded to the applicant.