1. In my opinion this order cannot stand. The charge against the accused is a charge of digging up the road, which is apparently a method of stating the way in which the accused according to law has injured the property of the Municipal Board. Unfortunately I have not seen the precise statement of the charge nor the rule made by the Municipal Board under Section 128(a). I entertain no doubt that the drain is Municipal property and vested in the Municipality. No doubt at one time it formed part of the public road. Whether it did or not, neither the applicant nor anybody else has any right to deepen the drain or to alter its construction or to remove any portion of the structure or the bed. If the defendant has done anything of this kind to the drain, it is still open to the Municipality to take proceedings against him for the penalty in a proper proceeding.
2. But I have to deal in this case with things as they are and I have to see whether the offence charged is properly made oat. The charge is, as I have said, for having dug up the road. Now the photo, which I accept as an honest representation of the locality, shows clearly that this drain now runs under a stone projection which is part of the entrance of the applicant's shop. The applicant has been allowed to put the stone over the drain for the use of himself and persons visiting his shop. I think it very doubtful whether the stone can be said to be part of the road at all and still less is the drain underneath it. The powers and rights of a Municipality as road authority and as drain authority are quite distinct. The facts are not in dispute. The applicant was expecting a visit from the Chairman the next day to see whether the projection prevented the drain from being cleaned. He engaged two men who were seen removing the soil from underneath the projection. Whether that was loose soil which had accumulated since the drain was last cleaned or whether it was part of the structure of the drain, is not found. In my opinion, the description in the judgment is consistent with the removal of accumulated matter. Under these circumstances whatever the applicant has done, it is perfectly clear that he is not guilty of digging the road. It must be understood, of course, that no one has any right to dig up any portion of the roadway or to dig up or alter any portion of the drain. The whole dispute in this case is a paltry one and I do not suppose that the Municipality would have taken these proceedings if they had not had another dispute with the defendant. It remains to be pointed out that there is a total absence of any evidence that what the defendant did amounted to defacing or injuring the drain, In any case there seems no reason for imposing the maximum penalty. At the most it is only a case for a nominal penalty but as I have said, the offence charged is not made out by the evidence. I, therefore, allow the revision, direct the order of the Magistrate to be set aside and the fine, if paid, to be refunded.