IMPORTANT POINT
Municipal Corporation cannot ask for payment u/s. 170 of Mumbai Municipal Corporation Act, 1888 of sewerage changes of drain (Nallah) on Chembur hill area as it neither vests nor belongs to it after acquisition of Chembur Hill area by State Govt. for setting Industries. However, it would be open to it to proceed u/s. 231 of the Act against respondents in accordance with law.

Headnote:Mumbai Municipal Corporation Act, 1888-Sections 3(4)-Drain Sections 220, 220A, 170 read with Rule 4.1 and Section 231-Chembur Hill area in city of Greater Bombay acquired by State Govt. for setting Industries-Municipal Drain in that area-Appellant s industrial waste falling in it-Corporation served a notice of demand u/s 170 r/w R. 4.1 for payment of sewerage changes-Challenged in writ petition-High Court set it aside-Appeal to Supreme Court-Whether drain (Nallah) owned by State Govt. vests in the Corporation? (No)-Land Acquisition Act, 1894-Sections 16 r/w 11-Whether State Govt. has transferred the said drain to Corporation? (No)-Is Corporation entitled to recover sewerage changes u/s 231 of the Act? (Yes, but no such notice has been given)-Result-Appeal dismissed accordingly.
       Held : 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 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. (Paras 14 and 15)
       Held also : 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 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. (Para 17)
       Held further : 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 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 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. (Para 19)
       Held in addition : It was next contended by learned counsel for the appellant that since an underground sewer passes within the radius of 100 feet from the land of the 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 charges under Section 231 does not arise. We have 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 Corporation to demand any sewerage charges from the respondents in C.A. No. 6299/97. Admittedly, no notice at all under Section 231 of the Act was 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. (Para 20)
       Held consequently : For the aforesaid reasons, we do not find any merit in these appeals and the same are accordingly dismissed with costs, which we assess at Rs, 2,000/- and the same shall be equally be received by both the respondents. (Para 21)

JUDGMENT

V. N. Khare, J.-Appellant No. 1 is a Municipal Corporation (hereinafter referred to as the Corporation ), established and constituted under the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as the Act ).

2. There is a large hilly tract of land in the locality of Chembur in the city of Greater Bombay. On the said land, there is a drain, by which rain water and drainage is carried, enamates from the upper region of the hill and 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 right 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 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.

3. Under the Act, one of the amongst numerous other functions and duties 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 170 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 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 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 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 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 preferred these appeals.

4. 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 Corporation is empowered to levy 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 Trust1. The contention of Dr. Rajeev Dhawan and Mr. Rafiq Dada, learned senior counsel appearing for the respondents is that since the dra

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