MUNICIPAL CORPN. OF GREATER BOMBAY AND ORS.versusHINDUSTAN PETROLEUM CORPN. AND ANR.

A          MUNICIPAL CORPN. OF GREATER BOMBAY AND ORS.
                                          v.
                HINDUSTAN PETROLEUM CORPN. AND ANR.

                                 AUGUST 23, 2001

B                   [V.N. KHARE AND B.N. AGRA WAL, JJ.]


          Mumbai Municipal Corporation Act, 1888:

          Ss.J(a), 170, 220, 220A and 231-'Drain' belonging to State Government
C but falling within the municipal limit of Municipal Corporatio'n-lndustries
    discharging industrial effluents in the drain-Municipal Corporation serving
    on industries notice of demand of sewerage charges-Held, drain belongs to         ...
    State Government and does not vest in Municipal Corporation-Vesting in
    Municipal Corporation of water channel or drain belonging to State
D   Government can take place only in the manner provided uls. 220A-As and
    when State Government vests or transfers the drain to Municipal Corporation
    it would be entitled to levy and realise sewerage charges from industries.

          Words and Phrases

E        'Vest', 'vesting' 'belonging' occurring in s.220 of Mumbai Municipal
    Corporation Act-Meaning of

         Expression 'madeover' occurring in s.220-A of Mumbai Municipal
    Corporation Act-Meaning of

          Certain land within the local limit of the appellant-Municipal
F   Corporation was acquired by the State Government for setting up industries.
    There was a drain running through the said acquired land. The State
    Government leased out portion of the acquired land to the respondents who
    set up industries thereon. Since the respondents started discharging industrial
    efnuents in the drain, the appellant-Corporation served on them a notice of
G   demand under Section 170 of the Mumbai Municipal Corporation Act, 1888
    for payment of sewerage charges. The respondents challenged the notice in a
    writ petition before the High Court contending that the drain neither vested
    in nor belonged to the Corporation and, therefore, it was not entitled to levy
    and realise the sewerage charges.

          For the Corporation it was contended that since it was assigned the dut}
H
                                          50
          MUNICIPAL CORPN. OF GREATER BOMBAY v. HINDU ST AN PETROLEUM CORPN.   51
to maintain drains and underground sewer within its limits, any drain not            A
owned by the Corporation vested in it and, therefore, it was entitled to levy
sewer charges. It was also submitted that a Municipal underground sewer
passed adjoining to the premises of the respondent and, therefore, under
Section 231 of the Act, the Corporation was entitled to levy sewer charges.
High Court allowed the writ petition holding that the drain did not vest in          B
the Corporation nor was there any notice in conformity with Section 231 of
the Act, and, therefore, the Corporation was not entitled to levy sewer charges.
Aggrieved, the Municipal Corporation filed the present appeals.

      Dismissing the appeals, the Court

      HELD : I. The drain in which the respondents are discharging the               C
industrial effluents belongs to the State Government and does not vest in the
Corporation. Therefore, the appellant-Corporation is not entitled to levy or
realise any sewerage charges from the respondents. [58-D-E)

     2.1. Merely because the Corporation is. entrusted with the duty to              D
maintain water channel and drain and, therefore, the water channel and drain
belonging to the Government vest in it is not correct. Vesting in the
Corporation of water channel and drain belonging to the State Government
can only take place in the manner provided under Section 220A of the
Mumbai Municipal Corporation Act, 1888. (57-H; 58-A)
                                                                                     E
      2.2. On completion of proceedings of acquisition of the land under the
Land Acquisition Act, 1894, in view of Section 16 thereof, the right, interests
and title of the land holder in the land including the easementary right, if
any, to discharge the water in the drain, stood extinguished and such right
came to be vested in the State Government. Section 220 of the Mumbai
Municipal Corporation Act, provides that any drain which vests in the                F
Corporation is a Municipal drain and shall be under the control of the
Corporation. The word 'vest' means vesting in title, vesting in possession or
vesting in a limited sense, as indicated in the context in which it is used in a
particular provision of the Act. The legislative history of the Act shows that the
expressions 'vesitng in' or 'belonging to' occurring in Section 220 of the Act are   G
not synonyms. What is vested in the Corporation necessarily may not be owned
by the Corporation. Further, vesting of Government water channel or drain in
the Corporation as contemplated under Section 220A of the Mumbai Municipal
Corporation Act also have different effects and consequences. The word
'made-over' occurring in proviso to Section 220A is very significant. It means
to transfer the title in or possession oHhe property. (58-D-F]                       H
    52                         SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A           Fruit and Vegetable Merchants Union v. Delhi Improvement Trust (1957)
    SCR 1, referred to.

          Richardson v. Robertson, (1862) 6 L.T. 75 at p. 78; Hinde v. Charlton,
    (1866-67) C.P. Cases 104 at 116; Coverdale v. Charlton, (187-79) 40.B.D. 104;
    Brown (a lunatic) (1895) 2 Ch. 666 and Finchley Electric Light Company v.
B   Finchley Urban District Council, (1903) 1 Ch. 437, referred to.

        2.3. The water channel or drain belonging to the State Government after
  complying with procedure provided under Section 220A either can vest in
  the Corporation for the management or the same can vest in the Corporation
  after the State Government transfers its right or possession in the water
C channel or drain to the Corporation. In any case unless the procedure
  provided under Section 220A is complied with, the water channel or drain
  belonging to the State Government would never vest in the Corporation. As
  and when the State Government vests or transfers the said drains in favour
  of the Corporation as contemplated under Section 220A of the Act, the
D appellant would be entitled to levy and realise the sewerage charges from the
  respondents. [57-F-GJ

          3. The High Court has taken the view that no notice as required under
    Section 231 of the Mumbai Municipal Corporation Act has been given by the
    Corporation to the respondents and, therefore, the question that the
E   Corporation was entitled to levy and recover the dues towards sewerage
    charges under Section 231 does not arise. In absence of such a notice, it was
    not open to the. Corporation to demand any sewerage charges from the
    respondents. However, it would be open to the appellants to proceed under
    Section 231 of the Act against the respondents, in accordance with law.
                                                                    (58-F, G, HJ
F
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6299 of
    1997.

         From the Judgment and Order dated 5.2.97 of the Bombay High Court
    in W.P. No. 1179 of 1990.
G
                                        WITH
            C.A. No. 6300/97

         Dr. K.K. Singhvi, B.M. Naik, Dr. Rajeev Dhawan, Rafiq Dada, Raju
    Ramachandran, S.H. Ujjainwala, D.N.Mishra, Sanjay Kapur, Ms. Shubhra
H   Kapur, R.K. Krishnamurthi, Sandeep Narain, Shri Narain, D.J. Khambatta,
    MUNICIPAL CORPN OF GREATER BOMBAY'· HINDUSTAN PETROLEUM CORPN. [V N. KHARE,!.]   53
Ms. Anjali, Ms. lndu Malhotra, Jay Savla, Ms. Reena Bagga and N. Menon A
for the appearing parties.

      The Judgment of the Court was delivered by

       V.N. KHARE, J. Appellant No. I is a Municipal Corporation
(hereinafter referred to as the 'Corporation'), established and constituted under         B
the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as the
'Act').

      There is a large hilly tract of land in the locality of Chem bur in the city
of Greater Bombay. On the said land, there is a drain, by which rain water
and drainage is carried, emanates from the upper region of the hill and                   C
ultimately submerges into the sea. It appears that the said land was acquired
by the State Government for setting up industries. As a result of acquisition
proceeding under Land Acquisition Act, the land, drain and all easementary
rights to discharge water in the drain came to be vested in the State free from
all encumbrances. It further appears that subsequently the State Government
leased out certain portion of the acquired land to the respondents in these two           D
appeals for setting up their industries. Consequently, the respondents have set
up their industries on the said land and, admittedly, they are discharging their
effluents in the aforesaid drain.

      Under the Act, one of the amongst numerous other functions and duties E
assigned to the Corporation is to construct and maintain municipal drains and
underground sewer. Since the respondents herein were discharging their
effluents in the drain (nallah), the Corporation served a notice of demand on
the respondents herein under Section I 70 of the Act read with Rule 4.1 of
the Rules for payment of sewerage charges. It appears that there was lot of
correspondence between the parties in regard to liability of the respondents F
to pay the sewerage charges. Ultimately, the respondents filed writ petitions
under Article 226 of the Constitution before the High Court of Bombay
challenging the demand of sewerage charges by the Corporation. The case of
the respondents herein, who were the writ petitioners before the High Court,
was that the drain (nallah) neither vests in nor belongs to the Corporation G
and, therefore, the Corporation is not entitled to levy and realise the sewerage
charges. On the other hand, the Corporation sought to justify the levy on the
premise that since the Corporation has been assigned the duty to maintain the
drains and underground sewer within the limits of Corporation, any drain not
owned by the Corporation vests in it and, therefore, is entitled to levy sewerage
charges. It was also the .case of the Corporation that a municipal underground H
    54                         SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A sewer passes adjoining to the premises of the respondents herein and, therefore,
    under Section 231 of the Act, the Corporation is entitled to levy sewerage
    charges. The High Court was of the view that since the drain (nallah) does
    not vest in the Corporation and inasmuch as there was no notice in conformity
    with Section 231 of the Act, and as such the Corporation is not entitled to
    levy and recover' any sewerage charges from the respondents. In that view of
B   the matter, the High Court allowed the writ petitions and issued direction to
    the Corporation to desist from realising any sewerage charges from the
    respondents. It is against the said judgment of the High Court, the Corporation
    has pr~ferred these appeals.

C          When these appeals were taken up, Mr. K.K. Singhvi, learned counsel,
    appearing for the Corporation, reiterated the arguments urged before the
    High Court. His first contention is that since the Corporation has been assigned
    the duty to maintain drains and sewerage within the limits of the Corporation,
    the drains belonging to State Government within the limits of the Corporation
    vest in the Corporation and, therefore, the Corp.oration is empowered to levy
D   and recover the sewerage charges. Learned counsel in support of his argument
    relied upon the decision of this Court in the -case of Fruit and Vegetable
    Merchants Union v. Delhi Improvement Trust, [ 1957] SCR I. The contention
    of Dr. Rajeev Dhawan and Mr. Rafiq Dada, learned senior counsel appearing
    for the respondents is that since the drain wherein the respondents herein are
E   discharging their effluents does not vest in the Corporation, the Corporation
    has no power to levy or recover any sewerage charges. On the arguments of
    learned counsel for the parties, the question arises whether the drain (nallah)
    owned by the State Government where the respondents herein are discharging
    effluents vests in the Corporation ?

F         Section 3(u) defines drain, which runs as tinder:

            "drain' which includes a sewer, pipe ditch, channel (tunnel) and any
            other device for carrying off sewage, offensive matter, polluted water,
            sullage, waste water, rain water or sub-soil water, and any ejectors,
            compressed air mains, sealed sewage mains and special machinery or
G           apparatus for raising, collecting, expelling or removing sewage or
            offensive matter to the sewage outfall''.

          Section 220 provides as under:

            "Municipal drains to be under the control of the Commissioner. - All
H           drains (vesting in or) belonging to the Corporation - which in this Act
   MUNICIPAL CORPN. OF GREATER BOMBAY'· HINDUSTAN PETROLEUM CORPN. [V.N KHARE, J.)   55
       are referred to as 'municipal drains' - shall be under the control of the          A
       Commissioner."

      Section 220A runs as under:

         Vesting of water courses. - "any natural water course heretofore
       belonging to Government by which rain water or drainage of any B
       kind is carried, may, on application to the (State) Government made
       by the Commissioner with the previous approval of the Standing
       Committee, be vested in the Corporation: provided that - (a) it shall
       be in the discretion of the (State) Government in each case to determine
       whether a particular water course so applied for shall be so vested,
       and (b) a resolution of the (State) Government declaring that a water C
       course so applied for may be made over to the Corporation shall,
       from the date thereof, operate to vest such water course in the
       Corporation''.

      It is no doubt true, that Section 220 provides that any drain which vests
in the Corporation is a municipal drain and shall be under the control of the             D
Corporation. In this context, the question arises what meaning is required to
assign to the word 'vest' occurring in Section 220 of the Act? In Richardson
v. Robertson, (1862) 6 L.T. 75 at p.78, it was observed by Lord Cranworth
as under:

        "..... the word 'vest' is a word, at least of ambiguous import. Prima
                                                                                          E
       facie 'vesting' in possession is the more natural meaning. The
        expressions 'investiture' - 'Clothing' - and whatever else be the
        explanation as to the origin of the word, point prima facie rather to
       the enjoyment than to the obtaining of a right. But I am willing to
        accede to the argument that was pressed at the bar, that by long usage            F
        'vesting' originally means the having obtained an absolute and
        indefeasible right, as contra-distinguished from the not having so
                                  -.
        obtained it. But it cannot be disputed that the word 'vesting' may
        mean, and often does mean, that which is its primary etymological
        signification, namely, vesting in possession."
                                                                                          G
      Hinde v. Charlton, (1866-67) CP. Cases 104atI16, Wiles, J. while
interpreting the word 'vest' occurring in a local Act, held thus:

       "iI.. ..'vest' did not convey a freehold title but only a right in the
       nature of an easement.... there is a whole series of authorities in
       which words, which in terms vested the freehold in persons appointed               H
    56                         SUPREME COURT REPORTS (2001) SUPP. 2 S.C.R.

A           to perform some public duties, such as canal companies and boards
            of health, have been field satisfied by giving to such persons the
            control over the soil which was necessary to the carrying out the
            objects of the Act without giving them the freehold."

          In Coverdale v. Charlton, (187-79) 4Q.B.D. 104, the Court of Appeal
B while considering the provisions of Public Health Act, made the observations
    as under:

            "What then is the meaning of the word 'vest' in this section ? The
            legislature might have used the expression 'transferred' or 'conveyed',
            but they have used the word 'vest'. The meaning I should like to put
c           upon it is, that the street vests in the local board qua street; not that
            any soil or any right to the soil or surface vests, but that it vests qua
            street."

           In re Brown (a lunatic) (1895) 2 Ch. 666, it was held that the word
    'vest' in Section 134 of the Lunacy Act, 1890 (53 & 54 Viet. C.5), included
D   the right to obtain and deal with; without being actual owner of the lunatic's
    personal estate.

          In the case of Finch/ey Electric Light Company v. Finchley Urban
    District Council, (1903) I Ch. 437, Romer, L.J., while interpreting Section
    149 of the Public Health Act (supra), observed as follows:
E
            "Now, that section has received by this time an authoritative
            interpretation by a long series of cases. It was not by that section
            intended to vest in the urban authority what I may call the full rights
            in fee over the street, as if that street was owned by an ordinary
            owner in fee having the fullest rights both as to the soil below and
F           as to the air above. It is settled that the section in question was only
            intended to vest in the urban authority so much of the actual soil of
            the street as might be necessary for the control, protection, and
            maintenance of the street as a highway for public use."

G       This Court in Fruit & Vegetable Merchants Union v. Delhi improvement
  Trust, (supra), while interpreting Sections 45 to 49 and 54 and 54A of the
  Improvement Trust Act, held after referring the decision cited above as thus:
  "it would thus appear that the word 'vest' has not got a fixed connotation,
  meaning in all cases that the property is owned by the person or the authority
  in whom it vests. It may vest in title, or it may vest in possession, or it may
H vest in a limited sense, as indicated in the context in which it may have been
    MUNICIPAL CORPN. OF GREATER BOMBAY''· HINDUSTAN PETROLEUM CORPN. [V.N. KHARE, J J   57
used in a particular piece of legislation."                                                  A
      Section 16 of the Land Acquisition Act provides that when the Collector
has made an award under Section 11, he may take possession of the land,
which shall thereupon vest absolutely in the Government, free from all
encumbrances. Here, the vesting in the context of the provision of the Act
shows that the right, interests and title of the land holder is extinguished and             B
the right, interests and title vest absolutely in the Government free from all
encumbrances.

       We are, therefore, of the view that the word 'vest' means vesting in
title, vesting in possession or vesting in a limited sense, as indicated in the
context in which it is used in a,Particular provision of the' Act.                           C
      It appears that when the Act was originally enacted, all the drains
which belonged to the Corporation were municipal drains under the control
of the municipal commissioner. By amending Act 5/1905, the words [vesting
in or] were inserted in Section 220 of the Act. Simultaneously, by the said                  D
amending Act, Section 220A was added in the Act which provides the method
of vesting of the Government drains in the Corporation. The legislative history
of the Act shows that the expressions ·vesting in' or 'belonging' to occurring
in Section 220 of the Act are not synonyms. In fact said expressions convey
two different meanings. What is vested in the Corporation necessarily may
not be owned by the Corporation. Further vesting of Government water channel                 E
or drain in the Corporation as contemplated under Section 220A of the Act
also have different effects and consequences. The word 'made-over' occurring
in proviso to Section 220A is very significant. The meaning of the word
'made-over' is to transfer the title in or possession of the property. Thus the
water channel or drain belonging to the State Government after complying
the procedure provided under Section 220A either can vest in the Corporation                 F
for the management or the same can vest in the Corporation after the State
Government transfers its right or possession in the water channel or drain to
the Corporation.

     Jn any case unless the procedure provided under Section 220A is                         G
complied with the water channel or drain belonging to the State Government
would never vest in the Corporation.

       For the aforesaid reasons we hold that merely because the Corporation
is entrusted with the duty to maintain water channel and drain and, therefore,
the water channel and drain belonging to the Government vest in it is not                    H
     58                        SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

·A correct. Vesting in the Corporation of water channel and drain belonging to
     the State Government can only take place in the manner provided under
     Section 220A of the Act. We accordingly reject the arguments of learned
     counsel for the appellants.

        Now, the question arises whether the State Government had transferred
B the said drains to the Corporation as contemplated under Section 220A of the
  Act. Admittedly, the land along with the nallah was acquired by the State
  Government under the Land Acquisition Act. Under Section 16 of the Act,
  the right, interests and title of the land holder in the land including the
  easementary right, if any, to discharge the water in the drain, stood extinguished
C and such right came to be vested in the State Government.
           After vesting, the State Government, admittedly, has neither vested in
    nor transferred its right in the drain to the Corporation, as contemplated
    under Section 220A of the Act. Unless such vesting in or transfer takes place,
    as provided under Section 220A, the drain belonging to the State Government
D   would not vest in the Corporation under Section 220 of the Act. We are,
    therefore, of the view that the drain which admittedly belongs to the State
    Government in which the respondents are discharging their effluents does not
    vest in the Corporation and, in that view of the matter, the appellant
    Corporation is not entitled to levy or realise any sewerage charges from the
    respondents. It goes without saying that as and when the State Government
E   vests or transfers the said drains in favour of the Corporation as contemplated
    under Section 220A of the Act, the appellant would be entitled to levy and
    realise the sewerage charges from the respondents.

          It was next contended by learned counsel for the appellant that since an
    underground sewer passes within the radius of I 00 feet from the land of the
F   respondents, and as such the Corporation is entitled to levy and recover
    sewerage charges under Section 231 of the Act. The High Court has taken the
    view that no notice as required under Section 231 of the Act has been given
    by the Corporation to the respondents and, therefore, the question that the
    Corporation is entitled to levy and recover the dues towards the sewerage
G   charges under Section 231 does not arise. We haw gone through the records
    and find that during the course of correspondence with the respondents in
    C.A. No. 6299/97, the Corporation sought to justify the levy under Section
    231 of the Act. Such a justification for levy during the course of
    correspondence cannot be a substitute of the notice as contemplated under
    Section 231 of the Act. In absence of such a notice, it was not open to the
H   Corporation to demand any sewerage charges from the respondents in C.A.
         MUNICIPAL CORPN. OF GREATER BOMBAY"· HINDUSTAN PETROLEUM CORPN. [V N. KHARE, J.]   59
     No. 6299/97. Admittedly, no notice at all under Section 231 of the Act was A
     given to the respondents in C.A. No. 6300/97 and, therefore, the question of
     recovery of sewerage charges does not arise. We, therefore, reject the argument
     of the learned counsel. However, it would be open to the appellants to proceed
     under Section 231 of the Act against the respondents, in accordance with law.

           For the aforesaid reasons, we do not find any merit in these appeals and              B
     the same are accordingly dismissed with costs, which we assess at Rs. 2,000
     and the same shall equally be received by both the respondents.

     R.P .                                                             Appeals dismissed.




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