ORAL JUDGMENT

Tipnis. J.

The Petitioners are a Company incorporated under the Indian Companies Act inter alia manufacturing and selling pharmaceuticals and cosmetics. The Petitioners have a Research Centre at Goregaon. By this petition the Petitioners challenge the levy of water charges and sewerage charges in respect of their Research Centre at Goregaon. It may be immediately made clear that the challenge in the petition is limited by the learned Counsel for the Petitioners; to imposition of sewerage charges levied in respect of Research Centre at Goregaon. Petitioners have averred that the Research Centre at Goregaon was constructed and started functioning in the year 1963 and the Petitioners carry out fundamental chemical and biological researches therein. It is asserted by the Petitioners that when the Research Centre was constructed, there was no drainage system by the Municipal Corporation of Greater Bombay in the nearby area. The Petitioners, therefore, constructed septic tank system to handle the used water in laboratories as well as in the housing colony; which is also situated within the Research Centre complex. The effluent is collected at the low lying area and treated further and such treated water is used for horticulture in the Research Centre campus. According to the Petitioners, the effluent is collected by the Petitioners in their own drainage system and taken to low laying area in the campus where oxidation ditch is situated. The Petitioners categorically asserted that they are not discharging or throwing out used water to any drainage service line of the Municipal Corporation. In fact, assert the Petitioners, there is no sewerage line of the Respondent-Corporation in the vicinity of the Petitioners Research Centre. The Standing Committee of the Respondents, by resolution dated 27th February 1976 made rules in exercise of powers under Section 170 of the Bombay Municipal Corporation Act. It provided for rates of recovery of sewerage charges, sewerage tax and sewerage benefit tax. The rules were called "Sewerage and Waste Removal Rules". They came into effect from 1st April 1976. It is asserted by the Petitioners that they are not liable to pay any sewerage charges under the rules framed by the Standing Committee as also under any provisions of Bombay Municipal Corporation Act. It is an agreed position before us that Petitioners have been paying sewerage tax. Inspite of correspondences the Corporation insisted that petitioners must pay sewerage charges. Petitioners have preferred this petition challenging the said action of the corporation i.e. insisting that the petitioners are liable for payment of sewerage charges in respect of their Research Centre at Goregaon and the demand notice in that behalf.

2.Affidavit in reply has been filed on behalf of the Municipal Corporation. With regard to the assertion of the Petitioners in paragraphs 6 and 7 of the petition affidavit in reply in paragraph 7 thereof asserts that at certain times inter alia in monsoon period water is discharged into municipal storm water drain which is ultimately carried out into the open drain or channel which ultimately discharges into the municipal drains across the road. The copy of the Sketch Plan of the property is also annexed to the affidavit. In paragraph 27 of the affidavit in reply it is stated as under :

"I deny that merely because, no regular municipal sewer line is connected with the Petitioners property, but the Municipal infrastructure i.e. open drain or channel etc. to carry the effluents is connected with the petitioners property, the Petitioners are liable to pay sewerage charges."

he affidavit further asserts that the judgment of the Division Bench in Nirlons Case lays down that two conditions must be fulfilled before the sewerage before the sewerage charges can be levied, first is that water must charges can be levied, first is that water must be supplied by the meter measurement and the second that the effluents is carried out by municipal infrastructure or municipal sewer line is connected with the petitioners property. It is asserted that in the present case, municipal infrastructure carries effluents of the factory premise. It is further stated that when the affiant of the affidavit inspected the property in the year 1993, it was found that during certain months, petitioners trade effluents are carried through the municipal infrastructure which ultimately carries the effluents across the road.

3.We have heard Shri Bharucha, learned Counsel appearing for the Petitioners in support of petition and Shri Singhavi, learned counsel appearing on behalf of the Municipal Corporation. We have also heard learned Additional Solicitor General Shri Rafik Dada, who is appearing for the petitioners in the connected petition and Shri Zaiwala, learned Counsel appearing in another connected petition, only on the point of interpretation of rule 4.1 of the aforesaid rules as also on the point of correctness of the decision of Dhanuka,J on which heavy reliance is placed on behalf of then respondent-corporation.

4.Shri Bharucha referred to several provisions of the Act and the relevant Rules, and submitted that in order to levy sewerage charge in lieu of sewerage tax, the Corporation must show that some actual services are rendered individually to the Petitioners. In that behalf, Shri Bharucha relied upon the decision of the apex Court, in the case of Sree Gajanana Motor Transport Co,Ltd. V. The State of Karnataka and others, reported in 1977 (1) Supreme Court Cases page 37. In para 6 of the aforesaid decision, the apex Court has observed as under :

"The term "charge" is abroad one. As used here, it is not a technical term and has not been defined by the Act. It has, therefore, its ordinary dictionary meaning. It means any amount which may be demanded as a price for the rendering of some service or as price of some goods."

Shri Bharucha also brought to our notice the meaning of word "charge" as given in `Ayers Law Lexicon, wherein it is stated "charge" is the price required or demanded for services rendered. Shri Bharucha placed reliance upon the judgment of the apex Court, in the case of Nagar Mahapalika, Varanasi V. Durga Das Bhattacharya and others, reported in A.I.R. 1968 Supreme Court page 1110. In para 10 of the aforesaid judgment, the apex Court considered whether there was a quid pro quo for the license fees realised by the Nagar Mahapalika, Varanasi and whether the impost was a fee in the strict sense as contemplated by Section 294 of the Act. A finding was recorded in the trial Court that the certain amount was spent by the Municipal Board for providing facilities and amenities to owners and drivers of rickshaws. The total amount inter alia included the amounts spent over the paving of bye-lanes, in which the only conveyance that can operate is a rickshaw, as also an amount spent as expenses for lighting of streets and lanes. So far as the two amounts are concerned the High Court was of the opinion that it cannot be considered to have been spent in rendering services to the rickshaw owners and rickshaw drivers, as the services rendered was a statutory duty of the Municipal Board viz. to light public streets and places, construct and maintain public streets, culverts etc. Shri Bharucha pressed this judgment in support of his submission that so far as sewerage charges are concerned, there must be some service rendered individually to the petitioners and general drainage system or infra-structure made available by the corporation under its duty to maintain the drainage system can justify levy of sewerage tax but not levy of sewerage charge without the petitioners actually availing of the said drainage system Shri Bharucha in that behalf, also placed reliance upon the judgment of the apex Court, in the matter of The Government of Andhra Pradesh and another V. Hindustan Machine Tools Ltd., reported in AIR 1975 Supreme Court page 2037, particularly on paragraphs 20 and 21 thereof. In para 20, the apex Court has observed :

"One cannot take into account the sum total of the activities of a public body like a Gram Panchayat to seek justification for the fees imposed by it. The expenses incurred by a Gram Panchayat or a Municipality in discharging its obligatory functions are usually met by the imposition of a variety of taxes. For justifying the imposition of fees the public authority has to show what services are rendered or intended to be rendered individually to the particular person on whom the fees is imposed".

In para 21 of the aforesaid judgment, Apex Court considered the submission of the learned counsel for the appellant before it that the Gram Panchayat lays roads for providing access to new buildings, that it provides for drainage and lights and that it scrutinises the plans submitted for intended constructions. The Supreme Court observed that it is unable to accept that these services are rendered individually to the respondents therein, the laying of roads and drainage or the supply of street lights are a statutory function of public authorities; and it is difficult to hold in the absence of any material; that any of such services have in fact, been rendered to the respondents therein. Shri Bharucha also brought to our notice the provisions of Section 61 of the Bombay Municipal Corporation Act, which provides that it shall be incumbent on the Corporation to make adequate provisions inter alia for the following matters namely:(a) the construction, maintenance and cleansing of drains and drainage works, and of public latrines, urinals and similar conveniences; (c) scavenging and the removal and disposal of exerementitious and other filthy matters, and of all ashes, refuse and rubbish, and contended that providing drainage system and infra-structure is a mandatory obligation of the Corporation. Shri Bharucha relied very heavily upon the judgment of the Division Bench of this Court in the matter of M/s Nagpal printing Mills V. Municipal Corporation of Greater Bombay, reported in A.I.R 1988 Bombay page 91. The issue before the Court was the validity and legality of rule 3(d)(i) of the Water Charges Rules of the Municipal Corporation Greater Bombay. It was contended before the learned Judges that the rule was ultra vires the rule making powers of the standing committee of the Corporation being inconsistent with the provisions of Section 169 of the Bombay Municipal Corporation Act. After referring to the provisions of Section 169 of the Act and other relevant provisions, in para 11, the Division Bench observed that the rule is framed, in terms, in exercise of the powers given by Sections 169 and 276. Section 169 empowers the Standing Committee to make rules to charge for the supply of water and by such rules to determine the water charges "based on measurement of the quantity of water supplied". The tense of the word "supplied" is important, as it refers to something executed. The phraseology leaves no doubt that the Corporation can levy a water charge only in respect of water that has in fact been supplied to and consumed by the consumer. Accordingly, Division Bench struck down the provisions of rule 3(d)(i) of the Water Charges Rules. Shri Bharucha also brought to our notice that the aforesaid decision of the Division Bench of this Court is completely confirmed by the apex Court by the judgment in the matter of Municipal Corporation V. Nagpal Printing Mills, reported in 1988 (2) Supreme Court Cases, page 466. In para 8 of the aforesaid judgment, the apex Court has observed as under:

"The High Court held that the rule was framed in terms exercise of the powers given by Sections 169 and 276. Section 169 specifically empowers the Standing Committee to make rules to charge for the supply of water and by such rules to determine the water charges "based on a measurement or estimated measurement of the quantity of water supplied". The High Court has emphasised the past tense of the words "supply", which is important and refers to something already done. We are in agreement with the High Courts view that it empowers the Corporation to levy charge only in respect of water that has in fact been supplied to and consumed by the consumer and it is to be levied on the basis of measurement or estimated measurement".

Shri Bharucha read provisions of Sections 140, 141, 142, 169 and 170. He also read out to us provisions of Section 128. Shri Bharucha contended that wording of Section 141 is similar to that of Section 142 so is the case in respect of wording and provisions of Sections 169 and 170 of the Bombay Municipal Corporation Act. Shri Bharucha, therefore, submitted that on the basis of the decision of the Division Bench in Nagpals case referred to above, which decision has been completely confirmed by the apex Court even in respect of sewerage charges, it has to be shown that the petitioners have actually utilised the drainage system of the Corporation before the Corporation can lawfully levy sewerage charges in lieu of sewerage tax. Shri Bharucha contended that if one looks at the relevant provisions of the Act, as also the rules, there is no manner of doubt that sewerage charges in lieu of sewerage tax can be levied only and only if some tangible services are rendered to an individual. Shri Bharucha also referred to provisions of Rule 4 which makes an express reference to "services rendered" as also provisions of Section 4.1, which lays down that whenever water is supplied to any premises by meter measurement, the Commissioner may instead of levying sewerage tax by levying sewerage charges equivalent to 50% of the prescribed water charges in force from time to time on such premises provided such premises are connected to the municipal sewer and or other municipal infra-structure such as pipe, storm water drain, dhapa drain, built up drain and open storm water drain, any other channel drain or to any arrangement which has the effect of transporting fluid water/sludge for further disposal. Shri Bharucha contended that in the light of Section 170 and other relevant provisions of the Act and the wording used in rule 4.1 and in view of the interpretation put on provisions of section 169 of the Bombay Municipal Corporation Act in the Nagpals case by the Division Bench of this Court, there can be no doubt that unless and until the premises are actually or physically connected to the municipal sewer or any other municipal infrastructure etc. it is not competent for the municipal corporation to levy sewerage charges under rule 4 of the Sewerage and Waste Removal Rules of the Bombay Corporation. On facts, Shri Bharucha contended that neither the sketch nor the map annexed to the affidavit in reply nor averment in the affidavit show that infact, the premises of the Research Centre at Goregaon are connected to any municipal drain etc. within the contemplation of rule 4.1 of the Sewerage Rules.

5.Shri Dada, learned Additional Solicitor General, appearing for the Petitioners in connected Writ Petition No. 1179 of 1990 brought to our notice the relevant Sewerage and Waste Removal Rules of 1976, of 1983 as also the current rules of 1987 and contended that if these rules are perused, it is evident that even the municipal corporation views sewerage tax and sewerage charges as mutually exclusive Shri Dada, invited our attention to rule 4, 4.1, 4. 4, 6.1, 8, 8.1.1 and 8.1.2 and contended that the very scheme of the rules would indicate that unless there is actual or physical connection of the premises with any municipal sewer etc, there is no question of corporation being entitled to levy sewerage charges in lieu of sewerage tax. Shri Zaiwala, learned Counsel appearing for the petitioners in Writ Petition No. 787 of 1991 contended that in interpreting taxing statutes the Court must apply the principle of strict interpretation and so interpreted, rule 4.1 of the Sewerage and Waste Removal Rules permits the corporation to levy the sewerage charges in lieu of sewerage tax only when the premises are connected to municipal sewer etc. In support of his submission regarding rule of interpretation in the case of taxing statute, Shri Zaiwala brought to our notice the decision of the apex Court in the matter of Commissioner of Sales-tax, U.P. Vs. Modi Sugar Mills Ltd. reported in A.I.R. 196l page 1047.Head Note (b) is as under:

"In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumption.The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency."

Shri Zaiwala also relied upon the decision of the apex Court in the matter of A.V.Feranandez V. The State of Kerala, reported in A.I.R. 1957 Supreme Court page 657 wherein, in para 29, it is observed that "in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter".

6.Shri Singhavi, learned counsel appearing on behalf of the Corporation, on the other hand, contended that the municipal corporation has to incur large expenditure for the purposes of carrying out the functions as contemplated under Chapter IX of the Municipal Corporation Act. Shri Singhavi also drew our attention to definition of word "drain" as found in Section 3(u) of the Bombay Municipal Corporation Act. Shri Singhavi contended that sewerage charges can be levied in lieu of sewerage tax and therefore, once the infra-structure or drainage and other relevant services are provided generally, the Corporation is competent to levy the sewerage charges. Referring to rule 4.1, Shri Singhavi contended in the light of several provisions of the Bombay Municipal Corporation Act and especially Section 170 and Chapter IX thereof, the word "connected" as found in rule 4.1 has to be understood as "connectable". Shri Singhavi contended that once it is shown that the premises are `connectable to the municipal sewer etc. it is competent for the Municipal Corporation to levy sewerage charges in lieu of sewerage tax. In support of the aforesaid interpretation of provisions of rule 4.1, Shri Singhavi relied upon the decision of the Division Bench of this Court, in the case of Shri Jamshed G.Kanga and ors. V. Nirlons Limited & Anr. rendered on 10th January 1992 in Appeal No. 837 of 1991. Shri Singhavi also relied upon the decision of the learned single Judge, in the matter of the Swadeshi Mills Co. Ltd. V. The Municipal Corporation of Greater Bombay and anr. rendered on 12th July 1984 in Writ Petition No 301 of 1980 as also decision dated 19th February 1993 by another learned single Judge, in the case of M/s. Super Steel Corporation and Other V. The Municipal Corporation of Greater Bombay and others in Writ Petition No. 2148 of 1988. Shri Singhavi also relied upon the decision of the apex Court in the case of The Anant Mills Co. Ltd., reported in A.I.R. 1975 Supreme Court page 1234, paragraphs 36 and 37 thereof in particular. We will have occasion to make a detail reference to these decisions in the later part of our judgment. Shri Dada, learned Additional Solicitor General, Shri Bharucha, and Shri Zaiwala contended that the decision of Dhanuka, J. in Writ Petition No. 2148 of 1988 is not a correct decision or does not lay down the law correctly Shri Dada contended that in the aforesaid decision, the learned Judge has overlooked the distinction between rule 4.1 which requires actual connection and provisions of rule 8.1.2. Shri Dada contended that if all the rules framed by the Corporation from time to time are taken into consideration, it clearly demonstrates awareness on the part of the Corporation itself of the clear distinction between the sewerage tax and sewerage charge Shri Dada contended that if the interpretation of rule 4.1 as made by Dhanuka J, is accepted, the provisions of rule 4.l would be ultra vires the provisions of Section 170 of the Bombay Municipal Corporation Act inasmuch as it would levy sewerage charges without any services being rendered which is absolutely necessary as reflected in the decision of the Division Bench of this Court in Nagpals case. Shri Dada also contended that Dhanuka J., has not correctly read the decision or ratio of the learned single Judge in Writ Petition No. 301 of 1980. He, therefore, contended that decision of Dhanuka J., referred to above, does not lay down the correct law or does not correctly interpret the.provisions of rule 4.1. Shri Dada in that behalf also brought to our notice the provisions of Section 220A, 228, 229, 231, 232 and 260 of the Bombay Corporation Act and contended that all these provisions leave no manner of doubt that before the Corporation can levy sewerage charges in respect of any premises the premises must be actually or physically connected to a municipal sewer or any other municipal infra-structure as mentioned in rule 4.1.

7.First, we will address to the factual aspect. It is conceded by the learned counsel for the Petitioner that if the premises are actually connected to any municipal sewer or any other municipal infra-structure, the municipal corporation can legitimately and lawfully levy the sewerage charges. As stated earlier, in para 6 and 7 of the petition, the petitioners have categorically asserted that the premises are in no way connected with the municipal sewer or any other municipal infra-structure. As against that, we have already referred to the assertions made on behalf of the Municipal Corporation in the affidavit of the Executive Engineer. In para 7 of the affidavit, it is alleged that on certain times inter alia in Monsoon period water is discharged into municipal storm water drain which is ultimately carried into the open drain or channel which ultimately discharges into the Municipal drains across the road. Reliance is placed on the map annexed to the affidavit and we must immediately say that the map does not show any such connection at all. As a matter of fact, in para 27, the Engineer has stated that merely because no regular municipal sewer line is connected with the Petitioners property but the municipal infrastructure i.e. open drain or channel etc. to carry the effluents, is connected with the Petitioners property, it cannot be stated that the Petitioners are not liable to pay the sewerage charges. This clearly shows that even according to the Corporation no regular municipal sewer line is connected with the Petitioners property. In the light of aforesaid assertions and the map the further averment in the said affidavit to the effect that the property was inspected in 1993 when it. was found that during the certain months, Petitioners trade effluents is carried through the municipal infra-structure which ultimately carries effluents through the municipal infra-structure across the road is extremely vague and does not even remotely show that the premises are connected with the municipal sewer. On the basis of material on record we hold that it is not shown that the premises i.e. Research Centre of Petitioners at Goregaon are in any way connected with the municipal sewer or any other municipal infra-structure.

8.As stated earlier Shri Singhavi contended that even if the premises are not actually connected but they are "connectable" meaning thereby that the Corporation has made its sewer or drain line or other municipal infra-structure available within 100 feet of the premises, even if there is no actual or physical connection, it must be deemed to be "connectable" and liability to pay the sewerage charges in lieu of sewerage tax, must arise. We find it difficult to accept the submission of the learned counsel for the Corporation that the word "connected" used in rule 4.1 in the context of the provisions of the Act and provisions of Chapter IX and Section 170 in particular, must be read as "connectable". First, we will refer to the decisions relied upon by Shri Singhavi in support of his submission. So far as the decision reported in AIR 1975 Supreme Court page 1234 and in particular paragraphs 36 and 37 thereof are concerned, we must observe that it is specifically with reference to Section 129 of the Bombay Provincial Municipal Corporation Act. The Supreme Court was considering the question whether the Corporation in determining the rates of conservancy tax has to find out the total expense it would have to incur for the various purposes mentioned in Section 129(b) in connection with the conservancy service and thereafter to raise that amount by fixing the different rates of conservancy tax for various categories of properties or whether the Corporation would have to find out separately the expense required in respect of conservancy service for each category of property and thereafter to fix such rate of conservancy tax for a category of property as would be sufficient, to meet the expense on the conservancy service for that particular category. In other words, whether the rate of conservancy tax for a class of property to be determined by taking into account the total expense that the Corporation has to meet for conservancy service in an official year or is to be determined by taking into account the expense which the Corporation has to meet for conservancy service for that particular class of property. On considering the provisions of Section 129, the apex Court held that before determining the rates of conservancy tax for different categories of properties, Corporation should find out the total expense it would have to incur for the various purposes mentioned in clause(1) of that Section. After having ascertained the total expense it would be permissible to fix different rates of conservancy tax for various categories of properties. The apex Court observed that it is not essential, except in cases mentioned in sub-sections (2) and (3) of Section 137 that the rate of conservancy tax for a particular category of properties should be such as would be related only to the expense for conservancy service for that particular category of properties. We are afraid that this case may not be of much help as we are dealing with the competency of the Bombay Municipal Corporation to levy the sewerage charges in lieu of sewerage tax and that we will have to consider on the basis of several provisions of the Bombay Municipal Corporation Act, as well as the statutory rules framed by the Corporation in that behalf.

9.Reliance placed by Shri Singhavi on the judgment of the Division Bench in Appeal No. 837 of 1991 (Shri Jamshed G. Kanga and Ors. V. Nirlons Limited and Anr.) is also not of any help to support the submission of the learned Counsel so far as the interpretation of rule 4.1 is concerned. The judgment shows that Nirlon Ltd. the Company concern therein; was running factory at Goregaon. It was receiving water from the Corporation. The factory generated both industrial and domestic effluents. The company had laid effluent disposal line which connects the factory to Nala maintained by the Corporation. Before discharging the industrial effluent, the Company is required to carry out the treatment for removal of oil traces and sludges. The Company also laid another line which is connected to Municipal drainage which ultimately joins the Nala. The company did not dispute before the Court that effluents are discharged through Municipal drainage. It is on the background of these admitted facts that claim of the petitioner Company that there are distinct premises in the factory viz. domestic premises and industrial premises and effluents used for domestic are connected to Municipal sewers was considered by the appeal Court. The Company claimed that the industrial effluents are not connected to Municipal sewer but are directly discharged in the Nala and therefore, sewerage charges cannot be levied under rule 4.1. In paragraph 7 of the judgment, the Division Bench observed that it is not in dispute that for the factory premises of the company water is supplied by meter measurement and this fact is explained in paragraph 3 of the petition. It is also not in dispute that some of the effluents from the factory are discharged through Municipal sewers. The short question for determination is whether it is permissible for the Company to claim that industrial effluents are directly discharged in Nala and not through the Municipal sewer but domestic effluents are connected to

Municipal sewer and therefore, whether it is permissible for the Corporation to levy sewer charges under rule 4.1. The Court held that rule 4.1 is attracted in the facts and circumstances of the said case. The Court observed that the entire claim of the company proceeds on the assumption that premises to which water is supplied are distinct in nature (i) factory premises and (ii) domestic premises. The Court held that this is entirely contrary to accepted facts. In our opinion, thus, facts and circumstances are not only different but it clearly showed that the factory which was being supplied with Municipal water had a direct connection with the Municipal sewerage and the Court held that it is not permissible for the Company to claim that because there are different modes or lines of discharges of effluents from factory premises and in one case effluents are discharged directly in the Nala without connecting to the municipal sewers, the liability under rule 4.1 is not attracted. The Court held that once it is accepted that in respect of line marked A - B the discharge of effluents is connected to municipal sewers and passes through the municipal sewers before it reaches to Nalas then there is no escape from the fact that the liability of the Company arises under rule 4.1.

10.Similar is the position in respect of decision of the learned single Judge in Writ Petition No.301 of 1980 (The Swadeshi Mills Co. Ltd. V. The Municipal Corporation of Greater Bombay & ors.). In paragraph 6, the learned Judge has categorically stated that on the factual aspect position is that the Corporation has provided aIl the necessary municipal infra-structure and drains for draining out or removing all waste water and effluent. The premises or property in question were connected to the Municipal sewerages with effect from 1974. Bulk of the processed waste water and effluent gets into the municipal sewerage. After observing this, the Court further observed that the first petitioner did not fully utilise the municipal sewerage and sought to discharge waste water and effluent etc. Otherwise than through the municipal sewerage or by diverting part thereof to storm water drains or to the drain connected thereto, will not, therefore, exempt the first petitioner from the legal liability to pay the dues in question. Situation in the said case therefore, is totally different namely there was actual and physical connection of the property with the municipal sewerage.

11.Now we turn to the decision of Dhanuka J., in Writ Petition No.2148 of 1988 (M/s Super Steel Corporation & Anr. V. The Municipal Corporation of Greater Bombay and ors.) on which very heavy reliance is placed on behalf of the Municipal Corporation. The petitioner before Dhanuka,J. had his factory manufacturing L.P.G. Tanks and Engineering goods. The Municipal Corporation had provided municipal storm water drainage on the road within 100 feet distance from the factory premises of the petitioner. The premises of the petitioner were not directly connected to the municipal sewerage/infra-structure though the Corporation was willing to allow the petitioner to avail of the facility. Dhanuka J., observed in this broad sense of the terms the factory premises of the petitioner are connected or connectable with Municipal sewerage and the Municipal Corporation has provided sewerage services for the factory premises of the petitioner. Dhanuka J., thereafter referred to provisions of Sections 140 and 170 of the Bombay Municipal Corporation Act. Rule 4 which was considered by Dhanuka J., also provided as under :

"wherever any premises are connected to Municipal sewerage and water is supplied to such premises by meter measurement, the Commissioner may, instead of levying Sewerage Tax, levy a sewerage charge equivalent to 50 per cent of the Water Charges raised on such premises and applicable to such case under Water Charges, Rules in force."

Justice Dhanuka observed that the only question which arises for consideration of the Court is as to whether the factory premises are connected to Municipal Sewers in the broad sense of the term and as to whether the Municipal Corporation has rendered services to the Petitioners in respect of their factory premises as contemplated under Rule 4 of the said Rules and it so, whether the Municipal Corporation is entitled to recover prescribed sewerage charges from the petitioner. Referring to the statements in the affidavit on behalf of the Municipal Corporation, it was observed that the affiant stated that premises of the petitioner are connected with the Municipal storm water drain which is situated on the municipal road. The municipal infra-structure i.e. storm water drain is within 100 feet distance of the petitioners property near the septic tank and soak pits to carry out the sewerage by the storm water drains, which is a municipal infra-structure. It is further stated in the affidavit that the petitioners are bound to connect sewerage line to join the said storm water drain. The learned Judge observed that the expression "services rendered" cannot be read in isolation and the expression must be interpreted broadly in the context of the provisions contained in Section 232 of the Bombay Municipal Corporation Act. On the basis of material, the learned Judge held that the factory premises of the petitioners are connected with municipal sewerage in broad sense of the terms. The learned Judge felt that "services rendered" cannot be interpreted to mean that "services directly rendered" and if the petitioners are not availing of the benefit of the services available to the factory premises of the petitioners within 100 feet therefrom, the petitioners cannot escape from the liability to pay the sewerage charges merely by reason of not availing of the facility. The learned Judge on this aspect relied upon the judgment of Pratap, J. in Writ Petition No.301 of 1980. With great respect to the learned Judge, we find it difficult to accept the interpretation of rule 4.1 as made by the learned Judge. Though the rule with which we are concerned, is amended rule; the phrase "premises are connected to the municipal sewer", is identical in both the rules. In that behalf, we find considerable merit in the submission of Shri Dada that the learned Judge has overlooked the distinction between the provisions of rule 4.1 and provisions of rule 8.1.2. We are also of the opinion that justice Dhanukas reading the judgment of Justice Pratap in Writ Petition No.301 of 1980, is not correct. As already pointed out in the case before Justice Pratap the factory premises or property in question was connected to the municipal sewerage with effect from 1974 and bulk of the processed waste water and effluent was getting into the municipal sewerage. Thus, Justice Pratap was not at all considering the case where there was no actual or physical connection with municipal sewerage. On the proper consideration of several Sections of the Bombay Municipal Corporation Act, and the Sewerage and Waste Removal Rules, we are of the opinion that the decision of Dhanuka J. holding that word "connected" in rule 4.1 must be broadly understood as "Connectable" is not correct. In our opinion, the said decision runs contrary to the decision of the Division Bench of this Court in Nagpals case reported in A.I.R. 1988 Bombay Page 91. If one reads the provisions of Section 169 and Section 170, it is clear that they are almost similar. Under Section 169 a water charge in lieu of a water tax, based on a measurement or estimated measurement of the quantity can be levied on "water supplied". Similarly, under Section 170 (1), the Standing Committee can make rules for removal of human wastes, excrementitious, polluted matters etc. and for charging any fittings, fixtures or services rendered by the Corporation under Chapter IX. A sewerage charge in lieu of a sewerage tax has to be based on the measurement or estimated measurement on. the quantity of the water supplied for the premises or of the quantity of waste discharges from the premises. Rule 4.1 is made expressly under the powers given under Section 170. Rule 4 begins with the words "levy of sewerage charges in lieu of sewerage tax" or the "services rendered". Rule 4. provides that whenever water is supplied to any premises by meter measurement, the Commissioner may instead of levying Sewerage Tax levy a sewerage charge equivalent to 50 per cent of the prescribed water charges and in force from time to time on such premises, provided such premises are connected to the municipal sewer or any other municipal infra-structure etc.

12.Under Section 142, the Sewerage Tax shall be levied only in respect of the premises: (a) situated in any portion of Greater Bombay in which public notice has been given by the Commissioner that the collection, removal and disposal of all excrementitious and polluted matter from privies, urinals and cesspools, will be undertaken by municipal agency, or (b) in which wherever situate, there is a privy, water-closet, cesspool, urinal, t bathing place or cooking place connected by a drain with a municipal drain. Thus, under provisions of Section 142(1)(a) the moment Commissioner gives a public notice as contemplated, sewerage tax becomes leviable. The provisions of Section 170 provides that the Standing Committee shall from time to time make such rules as shall be necessary for removing human wastes, etc . ... ... .. and for charging any fittings, fixtures or services rendered by the Corporation under Chapter IX and shall by such rules determine- (i) the charges for the supply of such services by a sewerage tax; or (ii) a sewerage charge in lieu of a sewerage tax, based on a measurement or estimated measurement of the quantity of water supplied for the premises or of the quantity of wastes discharges from the premises. Under sub section (2) a person who is charged for sewerage services under sub-clause (ii) or (iv) of sub-section (1) shall not be liable for payment of the sewerage tax. Thus, rules contemplated under Section 170 are for charging any fittings, fixtures or services rendered by the Corporation under Chapter IX. The interpretation sought to be placed on rule 4.1 by Shri Singhavi could have been possibly understandable, if, there was absolute obligation to connect drainage of any premises to the municipal drain or to other municipal infra-structure; the moment such municipal drain or infra-structure is made available at a distance not exceeding 100 feet from some part of the premises. The provisions and the Scheme of the Act do not spell out such obligation automatically. On the contrary, the Act contemplated that there may be premises which in the opinion of the Commissioner are having sufficient means of a effectual drainage and in such case, there is no automatic obligation to connect the same with municipal drain. Provisions of Section 231 show that where any premises are, in the opinion of the Commissioner, without sufficient means of effectual drainage and a municipal drain or some place legally set apart for the discharge of drainage is situated at a distance not exceeding one hundred feet from some part of the said premises, the Commissioner may, by written notice, require the owner or occupier of the said premises- (a) to make a drain of such material, size and description and laid at such level and according to such alignment and with such fall and outlet as may appear to the Commissioner necessary, emptying into such municipal drain or place aforesaid. Section 232 provides that where any premises in the opinion of the Commissioner, are without sufficient means of effectual drainage, but no municipal drain or such place as aforesaid is situated at a distance not exceeding one hundred feet from some part of the said premises, the Commissioner may, by written notice, require the owner or occupier of the said premises-(a) to construct a drain up to a portion to be prescribed in such notice, but not distance more than 100 feet from some part of the said premises, or (b) to construct a closed cesspool of such material, size and description in such a position, at such level, and with allowance for such all as the Commissioner thinks necessary, and drain or drains emptying into Cesspool.

Section 260 provides that the Commissioner may, if he thinks fit, cause any work described in the Chapter IX to be executed by municipal or other agency under his own orders, without first of all giving the person by whom the same would otherwise have to be executed, the option of doing the same. Sub Section (2) provides for expenses of work so done shall be paid by the person as aforesaid. Thus in our opinion, it is for the Commissioner to form the opinion whether any premises are without sufficient means of effectual drainage in which case, the Commissioner may, by written notice, require the owner or occupier to do the things which are provided in Section 231 or 232. The Commissioner is also having power to get the work executed. In our opinion, all these provisions clearly indicate that premises have to be actually connected with the municipal sewers or any other municipal infra-structure. Reading Sewerage and Waste Removal Rules in its entirety, it is clear that for the purpose of rule 4.1, the premises have to be actually connected to the municipal sewers or any other municipal infra-structure. Rule 4.4 provides that whenever water is supplied to ships or activities in high seas, no sewerage charges shall be levied. Rule 8 provides : Levy of Sewerage Tax where Sewerage Charges are not levied. Rule 8.1 is as under:

"Wherever the sewerage tax is leviable under Section 142 of the Bombay Municipal Corporation Act, 1888 for services rendered under Chapter IX and the Sewerage Charges are not levied under rule 4 of these rules, the sewerage Tax at the rate of 5 percent of the ratable value on all residential premises and at the rate of 8 percent of all ratable value for all other than residential premises shall be levied by the Commissioner in the following cases :

8.1.1 : Wherever the premises are connected to the Municipal Sewer and/or any other municipal infra-structure as specified in sub-rule 4.1 and water is supplied by un-metered water connection.

8.1.2 : Wherever the premises are not connected to the Municipal Sewer and/or any other municipal infra-structure so specified in Sub-rule 4.1 and water is supplied by un-metered or metered water connection."

Reading of all these rules together, clearly support the submission that sewerage tax and sewerage charges are mutually exclusive. Sewerage taxes are payable even when there is no connection, whereas sewerage charges are for services rendered and in such a case, provisions of rule 4.1 clearly contemplate actual and physical connection to the municipal sewers or any other municipal infra-structure, in other words, actual beneficial user of the municipal sewer or municipal infra-structure before the Corporation can levy sewerage charges in lieu of sewerage tax.

13.In view of the aforesaid, we find it difficult to accept the submission that in rule 4.1 the word "connected" has to be read as "connectable" as held by Dhanuka J. in the aforesaid decision.

14.On the basis of material on record in the case before us, we find that premises concerned in the petitions are not connected with the municipal sewers or any other municipal infra-structure within meaning of rule 4.1 of Sewerage and Waste Removal Rules of the Bombay Corporation effective from 5th April 1987 onwards. If that be so, the Corporation obviously is not entitled to levy sewerage charges in respect of the said premises.

15.In the result, the petition succeeds and impugned demand notice dated 14th March 1988 for sewerage charges issued by the Corporation to the Petitioners is hereby quashed.

Rule is made absolute in the aforesaid terms.

In the circumstances of the case, there will be no order as to costs.