JUDGMENT - N.J. PANDYA, J.:---This is an appeal against the order dated 2nd August, 1993 of the learned Single Judge passed in Writ Petition No. 2540 of 1989 whereby the learned Judge was pleased to dismiss the petition. 2.The petition was filed on the basis that the petitioners should get the benefit of section 175 of the Bombay Municipal Corporation Act. That provision relates to refund of property tax paid on the basis of it being vacant. 3.It is an accepted position that the plot in question was in the process of being developed by putting up construction for building. On and after commencement of that work on or about 1-4-1984 the rateable value was revised and increased, which on representation came to be reduced. In the petition it is referred to as Rs. 1,79,750/- while before the learned Single Judge as noted in paragraph 5 of the order, the agreed position accepted by both the sides is that the reduced value was Rs. 2,80,110/-. The original assessment was fixed at Rs. 3,88,385/-. 4.On and after the commencement of the construction work till it came to be stopped on account of the stop work notice issued on 11-3-1985, according to the petitioners they have become entitled for refund on the basis of the vacancy, and concept to be found in Chapter VIII relating to Municipal taxation under sub head "Refund of property taxes for vacancies" below which there are sections 174 to 179. We are mainly concerned with section 175 which came to be deleted in the year 1998 by way of an amendment. Essentially, therefore, what we are concerned is the period starting from the notice. As envisaged by section 176 notice is required to be given by the property owner to the Corporation intimating that there is a vacancy. 5.It being a vacant land, pursuant to the decision reported in the case of (Bombay Municipality v. Polychem Ltd.)1, A.I.R. 1974 S.C. 1779 it is now an admitted position that the land in question was assessed as a land only. If one turns to the provisions of Clause 3(r) "land" includes land which is being built upon. It is a specific case of the respondent-Corporation that all through out the period the property has been assessed as land alone. If one turns to the provisions of Clause 3(r) "land" includes land which is being built upon. It is a specific case of the respondent-Corporation that all through out the period the property has been assessed as land alone. No doubt, in the pleadings at times reference is found "land under construction" but that is only to indicate that it is a land where building is built upon. The activity of construction by itself has not led to change in the assessment of the rateable value in any manner. This certainly is not the case of the petitioners. 6.All that the petitioners are saying is that on account of stop work notice when the petitioners have been prevented from carrying on that activity any further, it should be considered as vacant land and benefit under section 175 should be given to them. 7.The learned Single Judge after considering the rival submissions has in paragraph 5 has read section 175 to mean that the premises that were occupied have become vacant. This has prompted the learned Judge to observe in that very paragraph that in the instant case no assessment has been made on the basis of occupation. If there is no occupation there cannot be vacancy. In other words according to the learned Single Judge physical occupation must be there to bring about vacancy on ceasing of occupation. 8.Coming back to the land where building is being constructed, strictly speaking it can be said to be occupied. The building standing there may be incomplete. In that sense mere stoppage would not end the occupation and hence in physical sense there cannot be any vacancy. 9.What has been submitted at the bar in support of the petition merely comes to this. Because of the stop work notices, the petitioners have been prevented from continuing the activity of construction and thereby they have been prevented from using the land for a particular purpose namely construction which they were permitted by the respondent-Corporation itself to do by issuing commencement certificate. 10.If this be so, one has to take into consideration the circumstances which led the Corporation to issue the stop work notice. It is at page 37, Exh.-D and on the next page 38 as many as seven grounds are noted. 10.If this be so, one has to take into consideration the circumstances which led the Corporation to issue the stop work notice. It is at page 37, Exh.-D and on the next page 38 as many as seven grounds are noted. 11.It is not the case of the petitioners that inspite of complying with all these objections, they are prevented from carrying on the construction activities. If this be so, apparently what the petitioners are claiming before the Court is that they may or may not be at fault, the Corporation may be right in stopping the work, yet only because of that they should get the benefit of refund on account of vacancy. 12.Obviously, this submission cannot be countenanced. The reason for the stoppage of work as set out in the aforesaid exhibit at page 37 cannot be ignored either. If the stoppage is the result of lapses as alleged on the part of the petitioners, they cannot take advantage of their own lapses. 13.Apart from this equitable angle of the matter the very concept of vacancy as set out in section 175 of the Bombay Municipal Act, in our opinion as rightly observed by the learned Single Judge thus relates to use or occupation of the premises leading to the effect of losing of either the use or occupation. So far as the occupation in the instant case is concerned, it is that of the petitioners themselves. So far as the use is concerned, it is used for construction and can be used for construction as and when the petitioners are able to comply with the requirements of said letter Exh. D page 37. In either event, therefore, there is no question of vacancy as urged before us. We therefore do not find any infirmity in the order of learned Single Judge. The appeal is therefore dismissed. Appeal dismissed. -----