1. Are the appellants' 3 underground petrol tanks 'building', so as to attract the provisions of section 299 of the Bombay Municipal Corporation Act. Such is the essential controversy before us.
2. The appellants are the owners of a petrol station at Dr. Annie Besant Road, Worli. It is serviced by 3 underground mild steel petrol tanks. The capacity of each tank is 2,000 gallons. They are embedded in the ground. They are at some distance from the petrol station. Petrol is stored in these tanks and serviced to the petrol station for being put into the customers' vehicles. Originally the petrol station was away from the regular line of the street. On 17th October 1977 the Municipal Corporation drew a new regular line of the street. It was entitled to do so under the Act and there after compulsorily take away certain lands falling within the new regular line. On the 17th April 1980 the Corporation issued a notice to the appellants under section 299 that possession of the land would be taken as set out in the notice. That notice was challenged by the appellants in a writ petition before the learned single Judge. It was dismissed by a reasoned judgment. Hence the present appeal.
3. On behalf of the appellants their learned counsel Mr. Andhyarujina says that the impugned notice dated 17th April 1980 is bad in law as it is outside the scope of section 299 because the land is occupied by a 'building', namely the 3 underground tanks. He criticises the Corporation's resort to section 299, when according to him the Corporation should have invoked the powers under section 296 read with sections 90 and 91. This limb of Mr. Andhyarujina's argument would necessarily depend on the validity of the first.
4. Reliance was placed by Mr. Andhyarujina on Thompson v. Sunderland Gas Co., (1877) 2 Ex. D 429, where it was felt that underground arches used as cellars are buildings under section 7 of the Gasworks Clauses Act, 1847. In Schweder v. Worthing Gas Light and Coke Co., (1912) 1 Ch. D 83, a tunnel was construed as 'building' within section 7 of the Gasworks Clauses Act, 1847. In St. Nicholas Acons v. London County Council, (1928) AC 469, an underground transformer chamber was construed as 'building' under section 3 of the Disused Burial Grounds Act, 1884. Thus says Mr. Andhyarujina the 3 underground tanks are 'building' with the result that the operation of section 299 would be ruled out.
5. The applicability of the decisions relied on by Mr. Andhyarujina must be tested in the light of section 299 and certain other provisions of the Act. Sub-section (1), in so far as is material, empowers the Commissioner to take possession, after giving the requisite notice (in this case the impugned notice), of land which 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.' Section 3(s) defines 'building' as under :--
'building includes a house, out-house, stable, shed, hut and every other such structure, whether of masonry, bricks, wood, mud, metal or any other material whatever.'
It is an inclusive definition. Random House Dictionary defines 'building' at page 194 as-
'a relatively permanent, essentially boxlike construction having a roof and often windows and enclosing within its walls space, usually on more than one level, for any of a wide variety of activities, as living, entertaining, manufacturing, etc.'
6. The appellants themselves have in their affidavit dated 21st October 1983 given a description of their 3 mild steel underground tanks. Two have brick masonry work 11/2' thick on top. The other has brick masonry work at the top, bottom and sides. All three are embedded in the ground. On the basis of this description, Mr. Andhyarujina invites us to hold that the 3 tanks are 'building'.
7. We are unable to do so. These 3 metal containers or receptacles meant for storing petrol are what they are, namely tanks and petrol are what they are, namely tanks and nothing else. And such they must be regarded. They would be tanks if placed on the ground and they do not cease to be tanks because they are embedded underground. These tanks were not built in any underground structure as to form one integral whole. The masonry work on the tanks is for the protection of the tanks irrespective of the method they are sought to be protected by . The clothe them with the structure or 'building' would be a mistake. It would be unnatural. If tank can be 'building, then perhaps even a drainage-pipe protected say by a metal sheath could also be equated as 'building'. The result would be ludicrous.
8. Mr.Andhyarujin says if these tanks are shifted from their present locations, they would have to be moved within limits of the petrol pump which the rules do not permit. This by itself shows that the tanks are capable of being shifted. A structure cannot be shifted. It must be demolished. The very fact that on the appellants' own showing (and rightly so) their 3tanks are capable of being shifted, must militate from their contention that their 3 tanks are 'building'. They are not. Relative hardship caused to the appellants cannot be a ground to undo an act done by the Corporation for public weal.
9. What also militates from the fact that the appellants' tanks are not 'building' is that there is in addition internal guidance in the Act itself which discloses in no uncertain terms that the legislature did not and could never have intended that 'tanks' could be equated with 'building'. Sections 154(3), 155, 159 and 209 connote that the word 'building' used in the Act indicates a concept of occupancy, be it of an agency, human (a house), animal (a stable), vegetable (hot-house) or inanimate (godown). Surely no such concept can be attributed to a tank. Petrol does not occupy a tank in the manner occupancy is understood. It merely holds petrol. Section 156 requires the Commissioner to maintain a list of all the buildings distinguishing each of them either by name or number. No such thing is possible in the case of the appellants' tanks. Section 234 provides that a new building is not to be erected without drains; hence before a building is intended to be occupied, effectual drainage is necessary with provision for 'gathering and receiving the drainage'; 'conveying the same off'; and 'effectually flushing the drain of the said building'. This is something inconceivable in so far as the appellants' storage tanks are concerned.
10. In the light of the circumstances of this case and the Act as it stands, it is futile for Mr. Andhyarujina to draw on the decisions of the English Courts, based as they are on the facts of those cases and the legal provisions applicable in England.
11. But then says Mr. Andhyarujina the 3 tanks are an integral part of the petrol pump complex which is 'building' and are not of a dispensable character permitted by section 299 to wit, 'platform, verandah, step or some other structure external to a building'. Mr. Andhyarujina says that the entire petrol pump complex is one 'building' with only one part of the complex being underground, namely the 3 petrol tanks. We have no difficulty in resisting these blandishments. Looked at any way, the appellants' tanks are not 'building' and that is the end of the matter.
12. The appeal is dismissed with costs.
13. Appeal dismissed.