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58) The submission of the appellants is that appellants were thus not liable to pay any taxes in respect of such unauthorised construction. Even if the corporation could recover any tax in respect of such unauthorised construction, the corporation having knowledge and it being an admitted position that such structures were unauthorised structures and were put up by the tenants of the appellants, corporation could recover such taxes only from such trespassers/tenants and not from the appellants. The appellants in support of this submission placed reliance on the oral evidence led by the witness examined by the appellants and also the cross examination of the witness examined by the corporation. The appellants also placed reliance on the tabulated ward report prepared by the inspectors of the corporation admitting that such structures were put up by the tenants of the appellants.

LR 1132 (supra) and has already negatived this submission. Submission of the appellants is contrary to the judgment of Division Bench.

64) In so far as submission of the leaned counsel for the appellants that Corporation could not have taken any steps to recover from the appellants in respect of the structures constructed by the tenants/trespassers or that notice ought to have been given to the tenants also is concerned, in my view, the appellants have not disputed the position that the unauthorized construction was put up on the land which was a lease hold land given to the appellants and they were lessees of the Municipal Corporation. This court as well as Supreme Court in the above referred judgments have already taken a view that the primary liability to pay taxes was on Kvm FA186.90 the lessor and the lessor in turn could have taken steps to recover the additional amount of taxes required to be borne by the lessor from such tenants/trespassers by adopting proceedings. Corporation is not required to take any steps to recover from the tenants/trespassers when such structures are constructed on the land given by the Corporation to appellant being lessee of such plot. In my view the submissions of the learned counsel is thus contrary to the well settled principles of law laid down by the Supreme Court and this court that under section 146(2) of the Mumbai Municipal Corporation Act, the primary liability to pay tax was on the lessor. It is for the appellants to take appropriate steps to recover additional amount from the tenants in accordance with law.

65) In so far as submission of the learned counsel for the appellants that Corporation ought to have issued notice to the tenants/trespassers is concerned, a perusal of the oral evidence indicates that the notice was issued by the corporation to one of such tenants. Be that as it may, since the primary liability to pay taxes was on the lessors, in my view, even if no notice was issued by the Corporation to the tenants/trespassers for recovery of taxes, lessors cannot escape their primary liability to pay such taxes. Merely because such tenants would be owners of such unauthorized structure, in my view since such unauthorized structures were on the land admittedly leased in favour of the appellants, appellants are primarily liable to pay taxes in respect of such unauthorized construction put up on the lease hold land.

73) The next question that arises for consideration of this Court is whether the structures constructed by the tenants/trespassers were not the structures or hereditament capable of being separately let out and, therefore, liable to be assessed separately and would fall under the definition of expression "building"

Kvm FA186.90 under Section 3(s) of the Mumbai Municipal Corporation Act, 1888 ?