V. N. Khare, J. - (1.) 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, emanates 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 S. 170 of the Act read with R. 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 Art. 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 S. 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 S. 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.;