JUDGMENT - P.S. PATANKAR, J.:---The learned Single Judge felt that what has been held by another learned Single Judge of this Court in 1995(1) Bom.C.R. 97 : A.I.R. 1995 Bombay 411 (Rambhai Laxminarayan Kothari v. Municipal Commissioner and others)1, is not a good law in view of the observations of the Apex Court in the case of (The Municipal Corporation of Greater Bombay v. M/s. Polychem Ltd.)2, reported in A.I.R. 1974 Supreme Court 1779. He further felt that the two other judgments of the learned Single Judge reported in A.I.R. 1978 Bombay 382 (Ramakant Madhusudan Tipnis v. Municipal Corporation of Greater Bombay)3, and A.I.R. 1979 Bombay 10 (M/s. Tata Hydro Electric Power Supply Co. Ltd. v. The Municipal Commissioner of Greater Bombay)4, the judgment of the Apex Court in the matter of Polychem (cited supra) was not considered. Therefore, the following question came to be referred to the Division Bench for decision :---

"When admittedly the structures in relation to which property tax or general tax is being levied are unauthorised structures, in the sense that they have been constructed without getting building plans sanctioned by the Corporation and they have been occupying without Corporation issuing the occupation certificate be subjected to levy of property tax or general tax of the Corporation?"

The appellants are lessors of structures, but those structure came to be unauthorisedly extended by the tenants. In fact, they carried such construction on open space which compulsorily required to be kept open under the Building Rules. Therefore, the question is charging of general or property tax in respect of the said unauthorised structure or construction.

2.At the outset, we may note some of the relevant provisions of the Bombay Municipal Corporation Act, 1888 (hereinafter, referred to as the "Act of 1888"). Section 3(r) under the Act of 1888 defines "land" as under :---

"(r) "land" includes land which is being built upon or is built upon or covered with water, benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth and rights created by legislative enactment over any street."

Section 3(s) defines 'building' as under :---

"(s) "building" includes a house, outhouse, stable, shed, hut, tank (except tank for storage of drinking water in a building or part of a building) and every other such structure, whether of masonry, bricks, wood, mud, metal or any other material whatever."

Section 139 provides for taxes that can be imposed by the Municipal Corporation and one of them is "property taxes".

Section 140 provides for what to consist of property taxes and at what rate leviable. It provides for water tax, sewerage tax, general tax etc. The material part of section 140 is as under :---

"140. Property taxes of what to consist and at what rate leviable.---

(1) The following taxes shall be levied on buildings and lands in Brihan Mumbai and shall be called "property taxes", namely :---

(a)(i) the water tax of so many per centum of their rateable value, as the standing committee may consider necessary for providing water supply;

(ii) an additional water tax which shall be called the water benefit tax .....

(b) .................................

General tax

(c) a general tax of not less than eight and not more than fifty per centum of their rateable value, together with not less than one-eighth and not more than five per centum of their rateable value added thereto in order to provide for the expense necessary for fulfilling the duties of the Corporation arising under Clause (k) of section 61 and Chapter XIV."

Section 143 provides for on what premises general tax to be levied. It provides that the general tax shall be levied in respect of all buildings and lands in Greater Bombay with certain exceptions mentioned therein (with which we are not concerned).

Section 154 deals with Rateable Value how to be determined. The material part for our purpose is section 154(1) (2). It is as under :---

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