M.L. Pendse, J.
1. The petitioner No. 1-Bharat Petroleum Corporation Limited is a Government of India Company and by a lease deed dated September 10, 1964 from Mirchandani's a lessee in favour of the predecessor in title of petitioner No.1 i.e. Burmah Shell Oil Storage and Distribution Company of India Limited was obtained in respect of a piece of land admeasuring 630 Sq. Yards at Worli. The land includes a Petrol Service Station and other erections and structures standing thereon. The right, title and interest of the lessee now vests in the petitioner Company. The Petitioner No. 2. was appointed as a dealer in August 1978 for the purpose of running the Petrol Pump. The petitioners claim that the Petrol Pump is run on the leased property for last several years and has annual turnover of Rs. 31,52,000/-. The petitioner No.1 holds the required license issued by the authorities under the Petroleum Act, 1934 and the rules framed under the said Act.
2. The Deputy Municipal Commissioner for Greater Bombay, Zone I, served notice dated March 20, 1979 on the petitioners under section 299 of the Bombay Municipal Corporation Act (hereinafter referred to as the 'Act'). The notice recites that certain land not occupied by building and forming part of Plot No.1 situated at Worli lies within the regular line of the public street as prescribed by the Municipal Commissioner under section 297 of the Act. The Deputy Municipal Commissioner informed the petitioners that after the expiration of 7 clear days from the service of the notice the possession of the land together with its enclosing wall, hedge or fence, if any, will be taken possession. The plan of the land was kept for inspection in the Office of the Ward Officer. The petitioners have annexed the sketch to the petition marked as Ex. B and that sets out the area which the Corporation proposes to take possession of. The petitioners claim that the effect of recovery of possession would be the closure of the Petrol Pump. The petitioners complained that the three underground Petrol tanks of the Petrol Pump fall within the land proposed to be recovered by the Corporation and it will be impossible for the petitioners to relocate the underground Petrol tanks. The petitioners claim that the underground tanks are the 'buildings', as understood by the expression under the Act and, therefore, the Corporation cannot exercise powers under section 299 of the Act to recover possession. The petitioners also complained that the possession cannot be recovered by the Corporation without the prior sanction of the State Government as prescribed under sub-section (2) of section 299 of the Act. The petitioners have approached this Court by filing the present petition under Article 226 of the Constitution of India on March 15, 1982 and the relief sought is quashing of the impugned notice threatening to recover possession of the land underneath which the underground tanks are located.
3. To appreciate the submissions urged by Shri Damania, learned Counsel appearing for the petitioners, it is necessary to make reference to certain relevant provisions of the Act. Section 297 forms part of Chapter XI of the Act dealing with regulation of streets. Section 297 of the Act confers power upon the Commissioner to prescribe a line on each side of any public street and such line is to be called 'the regular line of the street'. The section sets out the procedure which must be followed by the Commissioner must give a public notice in the local newspaper as well as in the Official Gazette inviting objections. The Commissioner is required to consider the objection and forward the same to the Municipal Secretary for placing before the Corporation. The prescription of the regular line prohibits construction of any building within the line of the street except with the written permission of the Commissioner.
4. Section 299 of the Act deals with acquisition of open land or of land occupied by platforms, etc., within the regular line of the street and is required to set out in detail to appreciate the submission urged on behalf of the petitioners :
'(1) If any land not vesting in the Corporation, whether open or enclosed, lies within the regular line of a public street, and is not occupied by a building, or if a platform, verandah, step or some other structure external to a building abutting on a public street, or a portion of a platform, verandah, step or other such structure is within the regular line of such street,
the Commissioner may, after giving to the owner of the land or building not less than seven clear days written notice of his intention so to do, take possession on behalf of the Corporation of the said land with its enclosing wall, hedge or fance, if any, or of the said platform, verandah, step or other such structure as aforesaid, or of the portion of the said platform, verandah, step or other such structure aforesaid which is within the regular line of the street, and, if necessary, clear the same and the land so acquired shall thenceforward be deemed a part of the public street :
(2) Provided that when the land or building is vested in the Government possession shall not be taken as aforesaid without the previous sanction of the Government concerned and, when the land or building is vested in any Corporation constituted by Royal Charter or by an Act of Parliament, of the United Kingdom or by an Indian law, possession shall not be taken as aforesaid without the previous sanction of the State Government.'
Shri Damania did not dispute that the Commissioner had prescribed the regular line of the street in accordance with the provision of section 297 of the Act and the three underground tanks fall within the regular line of the street. The grievance of the learned Counsel is that though the land below which the tanks are situated falls within the regular line of a public street still, it is not permissible for the Commissioner to take recourse to the summary powers of acquisition under section 299 of the Act, but the Commissioner should adopt the procedure provided under section 296 of the Act. Section 296 of the Act confers power upon the Commissioner to acquire premises for improvement of public street. Shri Damania submits that the power under sub-section (1) of section 299 of the Act can be exercised provided any land open or enclosed lies within the regular line of the public street and is not occupied by building. The thrust of the submission is that the underground tanks fitted by the petitioners are 'building', as defined under the Act. The expression 'building' is defined under section 3(s) of the Act and prescribes that building includes a house, out-house, stable, shed, hut and every other such construction, whether of masonry, bricks, wood, mud, metal or any other material whatever. Shri Damania submits that the underground tanks must be treated as a building and, therefore, the Commissioner could not exercise the powers under sub-section (1) of section 299 of the Act. It is not possible to accede to this submission. The definition of expression 'building' indicates the concept of occupation either by human-beings or by animals. The expression would not cover constructions which are not used primarily for occupation. Shri Dalal, learned Counsel appearing on behalf of the respondents, submits that such a view has been taken by the Division Bench of this Court in the decision in the case of the Indian Oil Corporation Limited v. The Municipal corporation of Greater Bombay, reported in 77 Bom Law Rep 314. While considering the ambit of the expression 'building' under section 3(s) of the Act, the Division Bench observed that the concept of occupation appears to be incorporated in relation to buildings. It was further observed that in other words, a building should be capable of occupation or of being occupied or under occupation as normally understood, such, occupation being by human beings or by animals.
5. Shri Damania submitted that the ambit of expression 'building' should not be restricted only to the premises which are used for occupation either by human beings or by animals, but the expression 'building' should bring in its sweep every kind of structure. The learned Counsel relied upon the Building Regulations and Bye-Laws framed by the Municipal Corporation under section 461 of the Act. The said section enables the Corporation to make bye-laws not inconsistent with the act, with respect to various matters including construction of buildings, as well as underground construction. In accordance with these powers, the Corporation has framed Building Regulations and Bye-laws and the expression 'structure' has been defined as 'that which is built or constructed; an edifice or building of any kind, or any piece of work artificially build up or composed or parts joined together in some definite manner'. Shri Damania also placed reliance on Regulation 7 which prescribes that except with the written permission of the commissioner, no person shall construct any basement floor, cellar, vault, or underground room either under or as part of a building or otherwise. It was urged that the Regulation 7 clearly provides that even in respect of a construction made underground, like basement floor, cellar or underground room, permission of the Commissioner is necessary and that indicates that construction made underground is also a building as understood by the provisions of the Act. It is not possible to accede to this contention because the expression 'structure' is a generic term and includes the expression 'building'. Every structure is not necessarily a building as building connotes occupation either by human beings or animals. As the definition of the expression 'structure' is anything built or constructed, any piece of work artificially built up, can be structure but not necessarily a building. It was submitted that if the written permission is required even for a construction of basement floor, then the tanks built underground by the petitioners with the permission of the Corporation should be treated as a building or atleast a structure. The submission is not accurate because the regulations define the term 'basement story or cellar' as any story of a building which is under the first storey and any portion of which is below the level of the adjoining pavement or the surrounding ground. Regulation 7 does not deal with basement floor, cellar, vault or underground room independent of any building or structure above the land. It is not in dispute that there is no construction of any nature on the land below which are situated the underground tanks of the petitioners. The underground tanks are entirely independent of the structure constructed by the petitioners for use as petrol pump and, in my judgment, it is impossible on the facts and circumstances of the case to hold that the underground tanks which fall within the regular line are buildings as defined under the Act and, therefore, the Commissioner could not exercise powers under sub-section (1) of section 299 of the Act.
6. Shri Damania then submits that by looking to the nature of the construction of the tanks, it should be held that the construction amounts to building. It was urged that the three underground tanks are of capacity of 2000 gallons each and are used for the storage of petrol. The two tanks are of mild steel and are permanently embedded in the earth with brick masonry work on top of a thickness of 1 1/2. The other tank is also of mild steel with brick masonry work at the top, bottom and all sides, and has been permanently embedded in the ground. These underground tanks are connected with pipes fitted to the Petrol Pump and they have also lobsters and dipoles at the ground level. The learned Counsel urged that as the underground tanks are embedded tanks and are constructed independently of the structure, standing at the Petrol Pump, the same should be treated as buildings. It is not possible to accept this submission. Though Shri Dalal, submitted that the underground tanks cannot be considered as permanently embedded to earth and can be easily moved without difficulty, I will proceed to consider the claim of the petitioners that the tanks are permanently embedded to the earth. The mere fact that some construction is permanently embedded to earth would not automatically make it a building in the sense as it understood under the expression 'building' under section 3(s) of the Act. Shri Dalal, in this connection, relied upon the decision of the Division Bench cited earlier and submitted that the Division Bench had concluded that the tanks cannot be treated as a building. The Division Bench observed :
'Can a tank, therefore, be considered to be a 'building' under the Bombay Municipal Corporation Act, 1888 which we are construing? We think not. It is after all really a vessel or a container, the purpose of which is to store a liquid for eventual use or distribution. It would be immaterial if it is to contain oil or water or acid or even beer. As a matter of fact, a tank is not essentially different (in so far as it is a container) from a barrel or a brewer's vat or a copper still. It is, of course, possible that, in the context of a particular statute and of the phraseology of a definition cause, each of such vessels or containers including a tank may conceivably be treated as a 'building' or a 'structure'. But so far as the Municipal Corporation Act. 1888, is concerned and, in particular, section 3(s) thereof we are unable to see how a tank put up in the manner in which it has been done, for storage of oil, can be said to be a building.
No one looking at a tank can say that he was looking at a building or, that it was in fact to be considered as building except perhaps where by a legal fiction, an artificial meaning is compulsorily to be given.'
It is true that on the facts available before the Division Bench, it was noticed that the tanks were constructed out of mild steel plates and steel structural and that they rest by their own weight on a foundation consisting of layer of sand with the coating of asphalt over it. The facts before the Division Bench also established that there were no bolts or nuts for holding the tanks on to the foundation and the tank remained in position only by its own weight and that the tanks could be shifted from place to place by raising them slightly and dragging them after putting them on rails. The tanks in the case before the Division Bench were not built underground but were over the land. In my judgment, on principle, whether the tanks are placed over the land or underneath would make no difference to ascertain whether the said amounts to 'building' as understood by section 3(s) of the Act. In view of the conclusion of the Division Bench, it is not possible to hold that a tank for storage of oil is a 'building' within the meaning of the Act.
7. Shri Damania relied upon the decision in the case of Schweder v. Worthing Gas Light and Coke Company, reported in 1912 Chancery Division 83. The plaintiff in that case was the owner and occupier of land lying on both sides of a road known as Goring Lane in the country of Sussex. The defendant company was incorporated by the Worthing Gas Act, 1868, for the purpose of making and supplying gas. The Company had purchased land near the plaintiff's property and had commenced erecting some of the works to which the plaintiff has strongly objected. The plaintiff prior to the defendant commencing erection of the works had completed the boring of a passage, arch, or tunnel under Goring Lane for the purpose of enabling him to pass from one side to the other. The plaintiff instituted proceedings for a declaration that the defendants were not entitled to lay down any pipes or other works into, through, or against any part of the tunnel or in any land of the plaintiff and sought a direction that the defendants should remove the work that is carried out. The question which arose for consideration before the learned Judge was whether the tunnel is a 'building' and whether by joint operation of sections 6 and 7 of the Gas Works Clauses Act, 1847, the Company is prohibited from laying a gas main against a building. The learned Judge relied upon the earlier authority of the Lord Chancellor which held that where the work of an artificial character constructed by man, and constituting the result of putting together of bricks and mortar, steel and concrete, available for a variety of uses, than such work must be considered as a building. In my judgment, this decision has no relevance whatsoever to the facts of the case. The Act specifically defines the expression 'building' and unless the construction made by the petitioners falls within the four squares of the detention, it is not permissible to rely upon some of the observations of the English Court made while considering the provisions of English Act to conclude that the underground tank of the petitioners is a building. In my judgment, it is impossible to hold that the underground tanks amount to a building.
8. Shri Damania then submitted that even assuming that underground tanks are not buildings by themselves, still, they should be considered as part of the building and on that basis, the operation of sub-section (1) of section 299 of the Act should be excluded. Sub-section (1) of section 299 of the Act provides that if any land is occupied by building or if a platform, verandah, step or some other structure external to a building abutting to the public street, or a portion of the platform, verandah, step or other such structure is within the regular line, then the powers under sub-section (1) cannot be exercised by the petitioners. It was urged that the Petrol Pump would be of no use if the facility of the underground tank is not available and, therefore, the underground tanks should be treated as part and parcel of the structure in which the Petrol Pump is situated. It is not possible to accept the submission because the location of the underground tank is not immediately adjoining the structure in which the Petrol Pump is housed. Secondly, it is not necessary that the underground tanks should be located only at the place where at present they are situated. Shri Damania submitted that there is no space available with the petitioners for locating the underground tanks and, therefore, it is not possible for the petitioners to shift the said tanks. Even assuming that such is the position, still, in my judgment, it cannot lead to the conclusion that the underground tanks are part and parcel of the structure in which the Petrol Pump is situated. What is essential to attract sub-section (1) of section 299 of the Act is that the structure must be external to the building abutting on a public street. The items like platforms, verandahs, steps are constructed for the beneficial enjoyment of the building and the retention of the same is necessary for the enjoyment of the building. It is impossible to suggest that the location of the underground tanks at the existing place and within the regular line of the street are necessary for the operation of the Petrol Pump. The underground tanks can be located beyond the regular line of the street and the mere fact that the petitioners are unable or find difficult to comply with the requirements of the Petroleum Act and the rules framed thereunder in regard to the location of the underground tanks is no ground to hold that the underground tanks form part of the building. In my judgment, while considering whether the Commissioner is entitled to exercise the powers under section 299 of the Act, consideration that the petitioners would suffer hardship is not relevant. The contention that the underground tanks are buildings or atleast a part of the building is without any substance and deserves to be repelled.
9. Shri Damania then submitted that it is necessary for the Corporation to obtain the previous sanction of the State Government under sub-section (2) of section 299 of the Act before recovering the possession as the land proposed to be acquired vests in the petitioner No. 1-Corporation constituted by an Act of Parliament. The learned Counsel very fairly stated that the facts leading to the creation of the Corporation has been extensively discussed in the case of Som Prakash Rekhi v. Union of India and another, . Shri Damania also stated that it would not be possible for him to claim that the petitioner No. 1 was constituted by an Act of Parliament because the petitioner No.1 is a Company registered under the Companies Act and is not a creation of the Act of Parliament. The property which initially vested in Burmah Shell Oil Storage and Distribution Company of India Limited was taken over by the Central Government and thereafter handed over to the petitioner No.1 Corporation. In these circumstances, it is impossible to accept the submission that the Corporation is constituted by an Act of Parliament and, therefore, prior sanction of the state Government is necessary before recovering possession.
10. Shri Damania also submitted that the Commissioner should not exercise summary powers to recover possession under section 299 of the Act but must take recourse to the powers under section 296 of the Act, I enquired from the learned Counsels to what difference does it make if the Commissioner recovers possession by summary mode and whether such course would make any difference in regard to the payment of compensation to the petitioners. The learned Counsel very fairly stated that whether the Commissioner exercised powers under section 296 or under section 299 of the Act, that would not make any difference in regard to the quantum of compensation available to the petitioners. It was very strenuously urged that the business of petitioner No. 2. would come to an end if in case the possession of the land under which the underground tanks are situated is taken over by the Commissioner. The submission cannot be entertained because the Corporation has pointed out that the possession of the land is absolutely necessary for widening the road. The Corporation in its return dated October 11, 1983 filed by Issardas Parmanand Hirani, Sub-Engineer of the Corporation, points out that the vacant land abutting on the public street is required to be acquired forthwith to meet the demands of the heavy traffic at Worli Naka where the Petrol Pump is situated. The fact that the petitioner No. 2. would suffer some loss in business and would be required to under go hardship is no ground to prevent the implementation of the work for the public interest. Every one residing in Bombay is conscious of the problems of heavy traffic and the necessity of widening of the roads and, in my judgment, the action of the Commissioner in exercising powers under section 299 of the Act, in these circumstances, cannot be faulted with. The mere fact that the acquisition causes hardship to the lessee is not sufficient to deprive the wider interest of the public and, more so, when the land belongs to the Corporation. In my judgment, the petitioners are not entitled to any relief.
11. Accordingly, the petition fails and the rule is discharged with costs.