Case: Sadanand S. Varde & Others Vs. State of Maharashtra & Others

B.N. SRIKRISHNA, J.This writ petition under Article 226 read with Articles 14 and 48-A of the Constitution of India is a Public Interest Litigation by the petitioners who are tax payers and rate payers residing in Bandra area and claim to be deeply interested in environmental protection and planned and orderly development of the city of Mumbai. The first petitioner is the President of the Bombay Civic Trust and the second petitioner is the President of the Save Bombay Committee. First petitioner was for a number of years Municipal Councillor and a Member of the Maharashtra Legislative Assembly and later of the Council. He is also an ex-Minister of the Government of Maharashtra. Second petitioner was an active member of the Municipal Corporation of Greater Bombay for a number of years and is active in the field of environment protection. The third petitioner was a Professor of Bombay University who takes keen interest in environment protection. The fourth petitioner was Director and Labour Advisory in Siemens. The fifth petitioner is a businessman and a founder member of Mumbai Grahak Panchayat. The sixth petitioner is an executive in an International Bank in Bombay and the seventh petitioner was a Senior Manager of the State Bank of India and later consultant to the World Bank. The first respondent is the State of Maharashtra; the second respondent is the Municipal Corporation of Greater Bombay and the third respondent is the Commissioner thereof. The fourth respondent is the Union of India. The fifth respondent is the appropriate authority under section 269-UA of the Income Tax Act, 1961. The sixth respondent is the original owner of plot bearing R.S. Nos. 416 and 417 (Part) situated at Byramji Jijeebhoy Road, Bandra (West), which land is the subject matter of this writ petition. The seventh respondent is a Builder and the transferee of the land described hereinabove. The eighth respondent was the Minister of Revenue in the Government of Maharashtra at the relevant time. The ninth respondent is Enjay Hotels Private Limited and the tenth respondent is Devdut Co-operative Housing Society Limited, both being subsequently added as party respondents in the writ petition.2. The petitioners claim to be deeply interested in environmental issue and have jointly moved this writ petition to invoke the constitutional powers of this Court to obtain directions against the respondents for what the petitioners feel is unconstitutional, illegal and unjustified depredation of environmental resources in the Bandra Lands End area.3. The petition had an extremely chequered history and it is necessary to recount the facts leading to the writ petition in some detail so as to appreciate the plethora of complicated legal issues thrown up for consideration of this Court. FACTS4. Lands End Bandra is a peninsular piece of land which juts into the sea, being covered on the East, North and West by the Sea. It comprises a hill known as Mount Marry hill which houses the well known Mount Marry Church. The hill slopes towards the Mahim Bay on the Eastern side and the Arabian sea on the Western side. The area around the slopes has developed into a posh residential locality which is used to house spacious bungalows owned by the elite of Bombay. In course of time, the bungalows have given way to multi-storied buildings. As the tip of this peninsular piece of land are situated the ruins of an ancient Portuguese fort known as Bandra fort, which fort has been declared as a protected monument under section 4(3) of the Maharashtra Ancient Monuments and Archaeological Act, 1960 (Mah. XII of 1961). There has been considerable development on this peninsular piece of land and a developed road runs North-South almost to the tip of the peninsular area. Towards the West seaward of this road, there exists a five star hotel, "Sea Rock", whose construction had been permitted much before the Coastal Regulation Zone Notification under the Environment (Protection) Act, 1986 was brought into force. Hotel Sea Rock is situated towards the North of the Bandra fort within about 100 meters therefrom. A plot of land measuring 45,000 square yards bearing C.T.S. Nos. 416 and 417 (Part) situated opposite the Hotel Sea Rock i.e. towards the Eastern side of the developed road is the subject matter of this writ petition. Towards the East of this plot the hill slopes down to the Mahim Bay and there is a large tract of open land which now has been encroached upon and dotted by numerous unauthorised structures, though continued to be shown as green area in the sanctioned and revised Development Plan for H-West ward of Mumbai.5. The first sanctioned Development Plan of Greater Bombay (H-West ward) was sanctioned on 14th September, 1964. In this Development Plan, about 53,000 square yards from R.S. No. 6 and about 18,000 square yards from C.S. Nos. 416 and 417, representing the eastern slope, were reserved for garden. The remaining land, including the plot which is the subject matter of the writ petition, was to be in the residential zone. The Development Plan also incorporated a loop comprising a 120 feet wide development plan road skirting the edge of the peninsula. This loop was conceived as a part of larger arterial road under the plan. The South-Eastern portion of this loop was to join the Western Express Highway at the corner of Ali Yavar Jung bridge. The northern portion of this 120 feet road was aligned along with the existing road known as Carter Road and was to lead right upto Borivali running parallel to Swami Vivekanand Road and Link Road which are existing roads. For smooth implementation and proper alignment of the eastern portion of this development plan road, it was necessary to make some marginal reclamation of land as envisaged.6. Sometime in the year 1972, the State Government received representations urging it to extend the reservation for garden in the Development Plan to cover the plot which is the subject matter of this writ petition (hereinafter referred to as the "concerned plot"). The concerned plot, which was situated in the residential zone, had in the meanwhile been purchased by the sixth respondent. Since alteration of the sanctioned Development Plan is the subject matter falling within the jurisdiction of the Planing Authority under the Maharashtra Regional Town Planning Act, 1971, the first respondent instructed the second respondent to take suitable action under section 37 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as the "MRTP Act") by the letter dated 25th January, 1973. By this letter, the Government was responding to the representations made to it and was of the opinion that, in the larger public interest of the people of Bandra, there was need for providing adequate space for recreation and it would be desirable if the Bombay Municipal Corporation took suitable action under section 37 of the MRTP Act by making a minor modification in the Development Plan of II ward to extend the reservation of the Park by including in the reservation R.S. Nos. 416 and 417 (Part) which was currently available for residential development. The Government was also of the opinion that, while making a modification of H ward Development Plan, it would be desirable to shift the alignment of 120 feet D.P. road so that it would divide the park at two places. The Government, therefore, requested Bombay Municipal Corporation to consider the proposal and take suitable action under section 37 of the MRTP Act. Under section 37 of the MRTP Act, the Bombay Municipal Corporation as the Planning Authority had to pass a General Body resolution, give an opportunity for objectors to be heard and thereafter submit the proposal as deemed fit for the consideration of the State Government. Hence, the 2nd respondent passed a resolution on 3rd December, 1973 suggesting full extension of the garden reservation to cover the concerned plot. This was done despite the objection of the owner, sixth respondent. By another General Body resolution passed on 14th March 1974, the second respondent slightly modified the prposal. Under the modified proposal, the second respondent was to get 700 sq. yards of land free of cost for maintaining a garden and in return the sixth respondent was left free to develop the remaining plot without any claim on Floor Space Index of the surrendered 7000 square yards portion of the concerned plot.7. The modification made in the proposal was challenged by the present petitioners vide Misc. Petition No. 463 of 1974 before this Court. This Misc. Petition came to be dismissed by this Court. Appeal No. 82 of 1979 carried thereagainst was dismissed by this Court. Review Petition No. 8 of 1985 moved to review the decision of this Court was also dismissed by this Court. Thereafter, the petitioners filed a Special Leave Petition No. 17376 of 1985 in the Supreme Court contending, inter alia, that : (a) the mandatory directions under section 37(1) of the MRTP Act were not followed and (b) that the second General Body resolution passed by the Bombay Municipal Corporation was bad in law and void.8. On 26th July, 1978, the sixth respondent obtained from the State Government an exemption under section 30 of the Urban Land (Ceiling & Regulation) Act, 1976 (ULCA) in respect of the concerned plot. This order granted the exemption subject to the conditions that : (a) 18683.15 square meters would be used for construction of a hotel and for no other purpose; (b) 5852.07 square meters would be transferred to Bombay Municipal Corporation as gift for development of a garden without asking for any Floor Space Index in respect thereof, the area to be identified and demarcated by Bombay Municipal Corporation out of the total area of 24,535.22 square meters exempted under the order. If the Bombay Municipal Corporation did not require the land, the land holder had to utilise it for the purpose of developing a garden on it and for no other purpose; (c) an area of 13,079.95 square meters was to be utilised for Development Plan road as per reservation and was excluded from the purview of the exemption order and (d) the user of the land was subject to several restrictions and conditions which were indicated in the order.9. The order of exemption under ULCA was challenged by the petitioners by Misc. Petition No. 1406 of 1978, inter alia, on the ground that it was contrary to the State Governments directives to fully reserve the suit plot for garden. The said petition was dismissed on 10th January, 1979 by the judgment and order of Bharucha, J., (as His Lordship then was) holding that the exemption order did not violate the Government guidelines or the guidelines issued on 20th December, 1977 by the Government of India recommending liberal exemption of lands under ULCA for certain purposes including construction of a hotel. The learned Judge took the view that, considering the urgent necessity to increase the foreign exchange of the country, construction of a multi star hotel which was likely to attract foreign visitors was in public interest. The petitioners carried Appeal No. 81 of 1979 against the order of Bharucha, J. This appeal was dismissed by the Division Bench on 1st August, 1984. The petitioners filed Review Petition No. 8 of 1985 which was also rejected on 10th October, 1985. The petitioners thereafter preferred Special Leave Petitions Nos. 17376 and 17377 of 1985 to the Supreme Court. By a common judgment dated 9th February, 1988, the Supreme Court of India dismissed Special Leave Petitions Nos. 17376 and 17377 of 1985 and Civil Appeal No. 2537 of 1985 and categorically rejected all contentions urged before it. The Supreme Court observed :"19. The above grounds of challenge to the order of exemption granted to respondent 5 have all been considered by the High Court in its judgment disposing of the review applications. The petitioners have not challenged the judgment on review applications. The petitioners are only interested in seeking that sufficient area is kept reserved for a park or recreation ground for the benefit of the members of the public. They are not, in our opinion, concerned with the question as to the legality or otherwise of the exemption granted by the Government to respondent 5 under the Urban Land Ceiling Act. A copy of the draft revised development plan has been produced before us by Mr. Desai, learned Counsel appearing on behalf of respondent 5. We are satisfied that the question whether or not sufficient quantity of land has been kept reserved for park and recreation ground has been adequately considered and taken into account by the High Court. In the circumstances, we do not think that we are called upon to decide the legality or otherwise of the order granting exemption to respondent 5 under the Urban Land Ceiling Act. There is, therefore, no substance also in Special Leave Petition (Civil) No. 17377 of 1985."Thus, the challenge to the modified resolution of the General Body of the Bombay Municipal Corporation and the challenge to the exemption granted under ULCA attained finality by the said judgment and order the Supreme Court. 10. Then started another fresh round of litigation, all in "Public Interest". The sixth respondent, after obtaining the ULCA exemption order sought permission to construct a hotel on the concerned plot. Four Municipal Councillors of H Ward had written to the Municipal Commissioner (third respondent) on 19th February, 1982 (Exhibit "G" to the Writ Petition) requesting the Commissioner of the Bombay Municipal Corporation to reserve about 45,000 square yards of land in the Lands Ends, Bandra, for a public park in the revised Development Plan for Greater Bombay. They had requested him to prepare a tentative proposal on the above lines and not to sanction any plan for residential development and/or construction of the hotel on the said land.11. On 6th August, 1982, the Municipal Commissioner refused the development permission sought by the sixth respondent for construction of a hotel on the concerned plot. On 7th August, 1982, the sixth respondent filed an Appeal under section 47 of the MRTP Act against refusal of the development permission. On 8th October 1982, the Municipal Commissioner addressed his report (Exhibit "G-3") stating the circumstances under which he was of the opinion that a hotel should not be permitted to be constructed on the said plot. The main reason given by the Municipal Commissioner was paucity of open spaces in Bandra West area of H Ward. He also pointed out the ratio of lung space to population density as a reason for refusing the permission. The Appeal under section 47 of the MRTP Act was heard by the eighth respondent, then Minister of State for Urban Development, Shri Chandrakant Tripathi. By an order dated 26th April 1983 he set aside the order of the Municipal Commissioner refusing to grant development permission for construction of a hotel on the concerned plot. This order of the Minister of State was challenged in this Court by Writ Petition No. 1432 of 1983 which was permitted to be replaced by Writ Petition No. 1822 of 1983. This order was set aside by this Court on the ground that bias had been alleged against the said Shri Chandrakant Tripathi and that proper hearing had not been given to the petitioners, who were objectors to the development permission.11A. By an order made on 8th December, 1983 by Smt. Sujata Manohar, J., (as Her Ladyship then was), the Appeal was revived before the Minister of State for a fresh hearing. At this stage, the eighth respondent heard the Appeal. During the hearing of the Appeal, the second petitioner in the present writ petition and his Advocate were heard in support of the objections. The eighth respondent made an order on 4th February, 1984 partially allowing the Appeal of the sixth respondent under section 47 of the MRTP Act. The eighth respondent made the following order :"Appeal partly allowed. Due to north-south and east-west proposed 120 ft. wide development plan roads land is divided in 3 parts viz. Block A, Block B on south towards west of north-south D.P. Road.As decided earlier, 7000 sq. yards of land which is the subject matter of Urban Land Ceiling exemption, should be kept on Block B at the extreme end on southern side abutting the sea. This area shall be kept as Green space along with the Block C of Old Fort area.The Municipal Commissioner, Municipal Corporation of Greater Bombay, has informed that the Municipal Corporation of Greater Bombay proposes to shift the alignment of 120 feet east-west Development Plan road in the proposed revision of Development Plan of H Ward of Greater Bombay. As such the Municipal Commissioner shall exercise the powers under Dev. Control Rule 39(viii) and shift the alignment of 120 feet east-west Development Plan road of the sanctioned Development Plan towards south, touching the green space kept in Block B as shown on the enclosed plan, and include this area in the green space so as to form the compact block for the purpose of park and green space. This would leave a compact block of enlarged plot A of the northern side as shown on plan.The development permission this plot A shall be allowed for the purpose of Hotel which is permissible as per the sanctioned Development Control Rules subject to following conditions :---i) 15% Recreation space to be left in Block A shall be kept on the southern side of the plot abutting the green space left from Block B after merging the Road area in the green space.ii) The Development shall be allowed, IOD and C.C. shall be issued as per the Development Control Rules.iii) The F.S.I. of the road area would be admissible on plot A as per Development Control Rules 10(2).iv) The Municipal Commissioner, Municipal Corporation of Greater Bombay, Bombay shall take over the possession of the land proposed to be kept as Green on Southern side, abutting the sea after getting the plots properly demarcated.As regards directive of the Prime Minister for keeping 500 meters distance from the sea, this directive cannot be made applicable in this case, as this would stand applicable only for the beaches.The Municipal Commissioner, M.C., G.B., Bombay may consider the proposal of allowing the development and maintenance of the park and garden space by the applicant party at their own cost after obtaining the possession of the lands now proposed to be kept green.The permission for development of plots as per plans submitted by appellants be granted by the M.C.B.M.C. subject to the conditions mentioned above.No orders as to costs, each party to bear its own costs."This order was consonant with the exemption order under section 20 of the ULCA and also made some realignment of the 120 feet Development Plan road as a result of which three distinct plots :---(a) one comprising the Fort ; (b) one comprising the garden measuring about 7000 square yards to be made available to the Municipal Corporation of Greater Bombay and (c) one comprising a plot where the hotel could be constructed, were constituted.12. The order of the Minister of State for Urban Development made on 4th February 1984 under section 47 of the MRTP Act was again challenged in Writ Petition No. 704 of 1984 before this Court. A Division Bench of this Court found no merits in the writ petition and dismissed the writ petition by its judgment and order dated 27th April 1984. The decision of the Division Bench of this Court was challenged before the Supreme Court of India by Civil Appeal No. 2537 of 1985. The Supreme Court by its common judgment and order dated 9th February 1988 made in Civil Appeal No. 2537 of 1985 and Special Leave Petition (Civil) Nos. 17376 of 1985 and 17377 of 1985 dismissed all the three. We have already extracted the observations of the Supreme Court in said judgment.13. In the meanwhile, the draft revised Development Plan for H-West ward was published by the second respondent with some further changes in the alignment of 120 feet Development Plan road and increased area of garden beyond 7,000 square yards stipulated in the exemption order under ULCA and the Appeal order under section 47 of the MRTP Act. The fact of the draft Development Plan having been published has been noticed in the judgment of the Supreme Court dated 9th February 1988 in Civil Appeal No. 2537 of 1985 and Special Leave Petition Nos. 17376 of 1985 and 17377 of 1985. The Municipal Corporation granted development permission sought by issuing IOD under section 346 of the Bombay Municipal Corporation Act, 1888 and issued Commencement Certificate for construction of the hotel on the concerned plot.14. On 5th July 1974, the then Prime Minister of India, Smt. Indira Gandhi, had addressed a letter to Shri V.P. Naik, the then Chief Minister of Maharashtra, stating, inter alia, therein that she was distressed to hear that Bandra Lands End area was to be developed for yet another housing project. She suggested that it was a kind of area that should be kept entirely unspoilt for recreational and leisure activities. There were also representations received by Ministry of Environment, Union of India (Fourth Respondent) which resulted in voluminous correspondence between the first and the fourth respondents. After a full report was received by the Prime Ministers office from the Ministry of Environment and Forest, the matter appeared to have come to a close as indicated in the letter dated 23rd February 1982 from the Joint Secretary, Ministry of Environment, who advised the Secretary, Urban Development and Public Health Department, Government of Maharashtra, "The proposal of M/s. Enjay Estates to construct residential and other facilities in the land in their possession in Bandras Lands End, has been reviewed by the Government of India and that the Prime Minister has been apprised of the issues and has directed us to inform the Maharashtra Government that the Government of India have no comments to offer in the matter." He also requested that the final decision in the matter may kindly be intimated to his department for record.15. By another letter dated 30th November 1981, the Government of India had stated that the department of Environment, Government of India, had sought for detailed information of the present status of the Bandra Lands Ends development activity and that there was no implied directive to hold up any action proposed by the State Government on any pending issue, that it has been brought to the Governments notice by M/s. Enjay Estate Private Limited that construction on plots of land owned by them was being held up on account of Governments enquiry. The letter advised that the State Government should settle the question expeditiously and send a report to the department at an early date.16. When Smt. Maneka Gandhi was incharge of Ministry of Environment, she had an occasion to visit Bandra Lands End. This gave rise to another round of objections before the fourth respondent. This also resulted in a meeting being held with the Chief Minister of the Government of Maharashtra on 3rd May 1990 wherein several issues were discussed between the Chief Minister of Maharashtra and the Union Minister of State for Environment and Forest. The said meeting appears to have been held without prior notice to the Ministry of Urban Land Development and without any prior briefing of the Chief Minister on the status of the Development activity at Lands End. Consequently, the minutes of the meeting read as under :"2. Development of Lands End, Bandra, as a Nature Area : The Government of India desired that the Lands End area at Bandra should be a part of green belt to be developed as a Nature Area. The State Government were requested not to give permission for multistoreyed buildings in this area. The Union Minister of State further observed that no construction work should be permitted within a distance of 500 meters from coast line in violation of the guidelines of the Government of India."17. By a letter dated 19th February 1991, the Ministry of Environment and Forest, Government of India, was informed by the Secretary Urban Land Development, Government of Maharashtra, that the issue of reserving the concerned plot for a garden for recreation in the revised Development Plan for Greater Bombay was still under consideration of the State Government and would be taken up at the time of finalisation of the Draft Revised Plan of Greater Bombay which was being sanctioned wardwise. On account of an interim order made by the Division Bench of the Bombay High Court, the State Government had been restrained from taking a decision in isolation in respect of individual development of Draft Development Plan. Hence, a final decision in the case would be taken only at the time of sanctioning of the Revised Draft Development Plan for the relevant part of Greater Bombay and that the final decision regarding the plot would be conveyed to the Ministry of Environment and Forest, Government of India. Thereafter, a Committee specially appointed by the State Government considered the proposal for changes to be made in the Draft Revised Development Plan for H-West ward showing the concerned plot in the residential zone. Taking stock of all developments up-to-date, the Committee of Secretaries felt that the third respondent having already granted development permission, no change need be made in the proposal of the Drafts Revised Development Plan published by the first respondent. The Committees recommendation in the matter about the status of the concerned plot was accepted by the first respondent, Government of Maharashtra. The Committee of Secretaries, however, recommended deletion from the adjoining garden reservation C.T.S. No. 922 which was already covered by a slum. The Committees recommendation was also based on the suggestions from the third respondent who had suggested some changes in the network of 120 feet wide Development Plan roads. These changes were accepted and incorporated in the final sanctioned Development Plan on 7th May, 1992.18. By an application dated 17th February 1979, the sixth Respondent (M/s. Enjay Estates Private Limited) applied to the State Government for a no objection to the transfer of the concerned plot, which was exempted land under the ULCA exemption order dated 25th July, 1978, to the ninth respondent (M/s. Enjay Hotels Private Limited) on the ground that the sixth respondent was proposed to be amalgamated into the 9th respondent. By an order dated 7th February 1980, the State Government conveyed its no objection to the transfer of the exempted taken land to M/s. Enjay Hotels Private Limited with which M/s. Enjay Estates Private Limited was proposed to be amalgamated "provided that the shareholders of Enjay Estates Private Limited will hold shares in the same proportion in Enjay Hotels Private Limited (after amalgamation) as they hold at present in Enjay Estates Private Limited". It was further stipulated that under no circumstances the share holdings of the shareholders of Enjay Estates Private Limited shall fall below 26% of the total subscribed or paid up equity capital in Enjay Hotels Private Limited, failing which the exemption order was liable to be revoked. A scheme of amalgamation of M/s. Enjay Estates Private Limited (sixth respondent) with M/s. Enjay Hotels Private Limited (ninth respondent) was prepared and, after taking necessary steps under the Companies Act, the sixth respondent and the ninth respondent filed in this Court petition for sanctioning the Scheme of Amalgamation vide Company Petition No. 442 of 1992 and Company Petition No. 443 of 1992. By an order made on 3rd February 1993, the learned company Judge sanctioned the scheme of amalgamation in the said petitions. Certified true copies of the orders made in Company Petition No. 442 of 1992 and Company Petition No. 443 of 1992 were lodged with the Registrar of companies as required under the Companies Act, 1956 and the Rules framed thereunder. Consequent to this amalgamation order, the ninth respondent became the owner of the concerned plot and started constructing a multi-starred hotel thereupon.19. This writ petition was filed on 21st October, 1992, but despite applications made on behalf of the petitioners ,neither any ad-interim relief nor interim relief was granted. However, by an order made on 5th February, 1993 by the Bench of Mohta and Jhunjhunuwala, JJ., while admitting the writ petition, it was directed that the sixth respondent and/or the ninth respondent may proceed with the construction, if they so desire, provided they give an undertaking to the effect that the construction shall be carried out at their own risk and without claiming any equity in the event of the petition succeeding. Such undertakings have been given by the sixth and the ninth respondent and accepted by the Court. Though the record of this writ petition is replete with a number of Chamber Summonses and Notices of Motion taken out from time to time by the petitioners and the interlocutory orders made therein by this Court, we do not think it necessary to burden this judgment with the history of all the interlocutory proceedings. In our view, the facts recited hereinabove would be broadly sufficient to deal with the contentions urged before us in support of the writ petition.20. The petition raises a number of contentions, some of them quite diffusely, and alleges contravention of different provisions of various statutes on the part of the sixth and the ninth respondents in the construction of the hotel. We may mention here in passing that this long drawn out litigation in "Public Interest", which has spanned about two decades, has seen a multi-starred hotel being constructed on the concerned plot, which has been completed, become operational and is functioning in full swing. The petitioners have, however, continued with the spate of their litigations with unmitigated zeal.BONA FIDES OF THE LITIGATION21. At the outset, it is contended by Mr. Tulzapurkar, learned Counsel for the sixth and ninth respondents, that this is not a bona fide Public Interest litigation at all. It is urged that it is nothing but harassment and vindictive action on the part of the petitioners under the garb of Public Interest litigation. Learned Counsel pointed out that the petitioners had filed several writ petitions and appeals in this Court which were all dismissed. Finally, the litigation landed up in the Supreme Court and was the subject matter of Civil Appeal No. 2537 of 1985 and Special Leave Petitions (Civil) Nos. 17376 of 1985 and 17377 of 1985. By its judgment delivered on 9th February, 1988 which is now reported in A.I.R. 1988 S.C. 712, (S.N. Rao v. State of Maharashtra)1, the Supreme Court rejected all contentions urged by the petitioners before the Courts. Mr. Tulzapurkar urged that the petition is barred by res judicata since most of the issues urged in the petition have already been settled by the Supreme Court in its judgment in S.N. Rao (supra). As to some of the contentions which were not the subject matters of the litigation before this Court and the Supreme Court, it is urged by Mr. Tulzapurkar that they must be deemed to be barred by the principle of constructive res judicata inasmuch as such contentions ought to have been urged before this Court at the time when the earlier writ petitions were filed. Hence, learned Counsel submits that the attempt to raise contentions piecemeal involving multiplicity of litigation is indicative of gross mala fides on the part of the petitioners. It is urged that, though the petitioners claim to be environmentalists who are espousing issues affecting environmental protection, the fact that the present writ petition urges the question as to applicability of Chapter XX-C of the Income Tax Act, 1961, in a so-called Public Interest litigation by environmentalists, is indicative of the fact that the petitioners have other objectives than mere environmental protection. That the petitioners are challenging the amalgamation of the two companies, namely, M/s. Enjay Estates Private Limited and M/s. Enjay Hotels Private Limited, and urging contravention of the order made under section 20 of ULCA, which have nothing to do with environmental protection, shows their lack of bona fides according to Counsel. Hence, for all these reasons, relying on the judgment in (Shri Sachidanand Pandey and another v. The State of West Bengal and others)2, A.I.R. 1987 S.C. 1109, Mr. Tulzapurkar urges that this Court should hold that the petition is not bona fide, and not really for advancing public interest, but appears to be the result of something else. Learned Counsel echoed the lurking doubt expressed by Khalid, J., in Shri Sachidanand Pandey (supra), "Is there something more than what meets the eye in this case"22. On the material presented to us, we are unable to say that the litigation before us is not bona fide, though it does appear to us that the petitioners have been unduly persistent to the point of being odious in the pursuit of this case. As to the arguments based on res judicata and constructive res judicata, we shall deal with them when we take up for consideration the specific contentions. We shall, for the none, give the petitioners the benefit of doubt and assume that the petition is intended to be a bona fide Public Interest litigation, albeit pursued with misguided zeal. We would, however, like to add for the record that Public Interest litigation, even in Probono Publico initially, if it persists beyond the limits of tolerance, loses its halo and becomes oppressive and turns into Persecution Interest Litigation. Such appears to be the present case.LEGAL CONTENTIONS23. The petitioners urged a number of contentions which were diffuse and unstructured. We have gathered them as best as we can and the contentions of the petitioners can be broadly summarized under the following heads:---(a) Violation of Costal Regulation Zone (CRZ) Rules.(b) Contravention of ULCA and the exemption order made thereunder.(c) Contravention of the provisions of the Maharashtra Regional and Town Planning Act, 1966.(d) Violation of the sanctioned Development Plan.(e) Challenge to the decision of the Ministry of Environment & Forest, Government of India.(f) Challenge to the Corrigendum Notification dated 22nd November, 1996.(g) Challenge to sanctioned Development Plan.(h) Challenge to permission granted by the State Pollution Control Board.(i) Contravention of the provisions of the Maharashtra Regional and Town Planning Act, 1966 and Development Control Regulations for Greater Bombay, 1991.(j) Contravention of the Development Control Regulation No. 59.(k) Amalgamation of sixth and ninth respondents fraudulent, illegal and intended to circumvent law.(l) Application of Chapter XX-C of the Income Tax Act, 1961.SCOPE OF JUDICIAL REVIEW24. Before we take up the specific contentions urged by the petitioners, it is necessary to chalk out the compass within which this Court exercises jurisdiction under Article 226 in such matters. Doubtless, judicial review has been held to be a basic feature of the Indian Constitution and the power of the constitutional Courts, whether they be High Courts exercising jurisdiction under Article 226, or the Supreme Court under Article 32, is virtually limitless except for self-imposed limitations in the interest of administration of justice and the dictates of prudence. A Public Interest litigation is not adversary in nature, but is intended to focus the Public Interest aspect before the Court. If the Court is apprised of substantial injury to Public Interest, the Court is empowered and duty bound to interfere to do justice to the inarticulate public whose interest is projected as affected. Despite the awesome powers available in writ jurisdiction, the courts have constructively bridled this power and deferred to experts in matters of public interest where, in view of the ampitude of complexity and technical nature involved, a judicial proceedings in the nature of a writ petition would be wholly inappropriate for determination of the issues thrown up. Policy matters have also been rightly left for the public authorities to decide and the final say in such matters should normally not come within the purview of judicial review.25. In (Dahanu Taluka Environment Protection Group and another v. Bombay Suburban Electricity Supply Company Ltd. and others)3, 1991(2) S.C.C. 539, the Supreme Court observed with respect to judicial review as under :"The limitations, or more appropriately, the self-imposed restrictions of a Court in considering such an issue as this have been set out by the Court in (Rural Litigation & Entitlement Kendra v. State of U.P.)4, 1986 Supp. S.C.C. 517 and Sachidanand Pandey v. State of W.B., 1987(2) S.C.C. 295. The observations in those decisions need not be reiterated here. It is sufficient to observe that it is primarily for the Governments concerned to consider the importance of public projects for the betterment of the conditions of living of the people on the one hand and the necessity for preservation of social and ecological balances, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a just balance between these two conflicting objectives. The Courts role is restricted to examine whether the Government has taken into account all relevant aspects and has neither ignored nor overlooked any material considerations nor been influenced by extraneous or immaterial considerations in arriving at its final decision."26. In a recent judgment in (Tata Iron & Steel Co. Ltd. v. Union of India and another)5, 1996(9) S.C.C. 709, these principles were reiterated by the Supreme Court in the following words :"At this juncture, we think it fit to make a few observations about our general approach to the entire case. This is a case of the type where legal issues are intertwined with those involving determination of policy and a plethora of technical issues. In such a situation, courts of law have to be very wary and must exercise their jurisdiction with circumspection for they must not transgress into the realm of policy-making, unless the policy is inconsistent with the Constitution and the law ......."27. Keeping this overall approach in view, we shall now examine the legal disputes posed for our resolution.(a) Violation of Costal Regulation Zone (CRZ) Rules28. By a Notification dated 19th February, 1991 issued in exercise of its powers under Rule 5(3)(d) of the Environment (Protection) Rules, 1986, the Central Government has declared the Costal Stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 meters from the High Tide Line (HTL), and the land between the Low Tide Line (LTL) and the HTL, as Costal Regulation Zone. The Notification also imposes several restrictions on setting up and expansion of industries, operations and processing in the Costal Regulation Zone (CRZ). For the purposes of the Notification, High Tide Line (HTL) is defined as the line upto which the highest high tide reaches during spring tides.29. Paragraph 6 of the Notification deals with classification of Costal Regulation Zone for the purposes of development. CRZ is divided into four categories, namely, Category I (CRZ-I), Category II (CRZ-II), Category III (CRZ-III) and Category IV (CRZ-IV) as under:Category I (CRZ-I) :(i) Areas that are ecologically sensitive and important, such as national parks/marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals/coral reefs, areas close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty/historical/heritage areas, areas rich in genetic diversity, areas likely to be inundated due to rise in sea level consequent upon global warming and such other areas as may be declared by the Central Government or the concerned authorities at the State/Union Territory level from time to time.(ii) Area between the Low Tide Line and the High Tide Line.Category II (CRZ-II) :The areas that have already been developed upto or close to the shore-line. For this purpose, "developed area" is referred to as that area within the Municipal limits or in other legally designated urban areas which is already substantially built up and which has been provided with drainage and approach roads and other infrastructural facilities, such as water supply and sewerage mains.Category III (CRZ-III) :Areas that are relatively undisturbed and those which do not belong to either Category-I or II. These will include costal zone in the rural areas (developed and undeveloped) and also areas within Municipal limits or in other legally designated urban areas which are not substantially built up.Category IV (CRZ-IV) :Coastal stretches in the Andaman & Nicobar, Lakshadweep and small islands except those designated as CRZ-I, CRZ-II and CRZ-III.30. Paragraph 6(2) of the Notification prescribes the norms for regulation of developmental activities and provides that the development or construction activities in different categories of CRZ areas shall be regulated by the concerned authorities at the State/Union Territory level in accordance with the prescribed norms. It further provides that no new construction shall be permitted within 500 meters of the HTL. As far as the development or construction activities in CRZ-II are concerned, the prescribed norms are :CRZ-II(i) Buildings shall be permitted neither on the seaward side of the existing road (or roads proposed in the approved Coastal Zone Management Plan of the area) nor on seaward side of existing authorised structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of FSI/FAR.(ii) Reconstruction of the authorised buildings to be permitted subject with the existing FSI/FAR norms and without change in the existing use.(iii) The design and construction of buildings shall be consistent with the surrounding landscape and local architectural style.31. The Environment (Protection) Act, 1986 showed the growing concern of the Government of India about the decline in environmental quality as evidenced by the increase in pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life support systems. It is contended by the petitioners that if this background is kept in view while interpreting CRZ Notifications, then it is obvious that all building activity and the governing Development Control Regulations must be overridden by virtue of the provisions of section 24 of the Environment (Protection) Act, 1986.32. Mr. Kalsekar, learned Counsel for the petitioners, urged that the sanctioning of the Development Plans is contrary to the provisions of the CRZ Notification dated 19th February, 1991. There are several limbs to the argument.33. The first limb urged is that the Bandra Fort, which is situated at the tip of peninsular piece of land called Bandra Lands End, is a heritage fort and would, therefore, appropriately fall within CRZ-I and the Notification dated 19th February, 1991 which prescribes norms for regulation of building activities, substantially prohibits new constructions within 500 meters of High Tide Line except such of the construction activities as are listed in paragraph 2(xii). It is contended that the Bandra Lands End is an area of outstanding natural beauty/historical heritage falling within CRZ-I category. The petitioners place reliance on certain letters placed on record as Exhibits to the writ petition in support of this contention. In the letter dated 1st July, 1985 written by Shri Salim Ali, President, Bombay Natural History Society (Exhibit "D" to the Writ Petition), it is pointed out that the Bandra Lands End, where the concerned plot is situated, is a place of natural beauty and the construction of a hotel on the said plot would disturb the ecological balance and scenic beauty of the spot. Reliance is also placed on a letter dated 26th July, 1985 addressed by Dr. Rashmi Mayur, Director, Urban Development Institute (Exhibit "D2" to the Writ Petition). A letter written in the Indian Express by Dr. P.J. Deoras of the Society for Clean Environment dated 31st August, 1985 and the letter of Dr. Rashmi Mayur dated 26th July, 1985 are the letters in support of this contention. Reliance is also placed on the letter of the then Prime Minister of India, Smt. Indira Gandhi, addressed to Shri. V.P. Naik, the then Chief Minister of Maharashtra, on 15th July, 1974. On the basis of these letters, it is contended that the entire Bandra Lands End area including the concerned plot would fall within CRZ-I. It is not possible to accept this contention. As to which area is an area of outstanding natural beauty or history or heritage area, each person may have his or her opinion in the matter. Because some persons feel that an area is an area of outstanding natural beauty or historical heritage, it is not possible to conclude that it is so. After all, to use the well-worn cliche, beauty lies in the eye of the beholder ! In our view, the letters at Exhibits "D", "D1" and "D2" to the Writ Petition annexed to the writ petition are only expressions of individual concern with environmental issues and merely based on them it is not possible to say that the Bandra Lands End area inclusive of the concerned plot is an area of such outstanding natural beauty as to fall within CRZ-I.34. The second limb of the argument is that, because the ruins of the Bandra Portuguese Fort are situated at the tip of the Bandra Lands End, the area around the Bandra Fort would be historical/heritage area so as to fall within CRZ-I and hence no new construction should be permitted within 500 meters of the High Tide Line. In our view, this contention is misconceived. There is no doubt that the Bandra Fort as such is an area of historical/heritage value. In fact, the Bandra Fort has been declared to be such by a Notification dated 23rd April, 1984 issued under section 4(3) of the Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960 (hereinafter referred to as "MAMA Act"). This Notification describes the name of the monument as "Bandra Fort Remains and adjoining open land". There was some error in the description of the particulars contained in the Notification dated 23rd April 1984 which has now been corrected after Writ Petition No. 1403 of 1998 came to be filed by Enjay Hotels Limited and Another challenging the dimensions indicated in the Notification. An affidavit came to be filed in the said Writ Petition by the Director of Archaeology and Museums, Mumbai, who admitted that there was a patent error in the dimensions originally mentioned in the Notification in respect of the Bandra Fort area on 23rd April, 1984. The actual dimensions of the Bandra Fort were also indicated. Writ Petition No. 1403 of 1998 came to be disposed of as withdrawn when it was clearly demonstrated by the petitioners in the said Writ Petition, with reference to the facts, figures and maps, that the dimensions of the Bandra Fort and remains and open land specified in the Notification dated 23rd April, 1984 were inherently improbable and that there was an apparent error in the dimensions specified in the said Notification. In fact, the present first petitioner was the second respondent in the said Writ Petition No. 1403 of 1998 and he agreed with the contention of the petitioners in Writ Petition No. 1403 of 1998 as a result of which the first respondent, State of Maharashtra, in the said writ petition, was permitted to issue a corrigendum under section 39 of the MAMA Act to indicate the correct dimensions of the Bandra Fort and surrounding area which was declared as a protected monument under section 4(3) of the MAMA Act. The corrigendum Notification is dated 31st July, 1998 and correctly specifies the dimensions of the Bandra Fort remains and the surrounding area falling within the MAMA Act as notified under section 4(3) of the MAMA Act. The total area to be protected (including Bandra Fort) is 1620.10 square meters and the boundaries of the protected monument are : East - Arabian Sea West - Road and Arabian SeaNorth - City Survey No. 899South - Arabian Sea.A copy of this Notification dated 31st July, 1998 was kept ready, but had not been issued pursuant to an interim order made by this Court in Writ Petition No. 1403 of 1998. After the said Writ Petition No. 1403 of 1998 was disposed of, the said revised notification under section 39 of the MAMA Act has been issued. A perusal of the dimensions of the Bandra Fort remains and the open area which falls within the classification of heritage monument would show that concerned plot does not fall within the said area at all. Mr. Kalsekar urged that because the Bandra Fort is situated at the tip of the Lands End, the entire Lands End should be treated falling within CRZ-I. It is not possible to accept this contention. Basically, the Coastal Regulation Zone is one which falls within 500 meters of the High Tide Line. Merely because the Bandra Fort is situated at the tip of the peninsular plot of land, the entire peninsular plot of land does not fall within CRZ-I. The restrictions against construction in CRZ-I would apply only to a stretch of 500 meters from the High Tide Line as long as that area falls within the area declared as heritage monument under the MAMA Act. Looking at the revised dimensions in the Notification of 31st July, 1998, it is not possible to accept the contention that the concerned plot would fall within CRZ-I area so as to completely prohibit constructional activity on it. 35. Mr. Kalsekar then urged the third limb of the argument, that even if the plot fell within CRZ-I was not accepted, there could be no doubt that the concerned plot fell within CRZ-II and setting up of new activities and expansion of new industries is totally prohibited within the Coastal Regulation Zone under paragraph 2(i) of the Notification dated 19th February, 1991. It is contended that setting up of a five or more star hotel is an "industry" and as such would fall within the prohibition of the meaning of paragraph 2(i) of the Coastal Regulation Zone Notification dated 19th February 1991. Mr. Kalsekar placed reliance on certain judgments rendered under the provisions of the Industrial Disputes Act, 1947 holding that a hotel would be an "industry" within the meaning of section 2(j) of the Industrial Disputes Act, 1947. In our view, it is wholly inappropriate to construe the expression "industry" used in the CRZ Notification with reference to the concepts of an "industry" under section 2(j) of the Industrial Disputes Act, 1947. The judicial view as to what is an "industry" under section 2(j) of the Industrial Disputes Act, 1947, has gone to the extent of roping trading establishments, professional offices, hospitals, charitable organisations, such as temples, mosques or gurudwaras, within the definition of "industry" under section 2(j) of the Industrial Disputes Act, 1947. If a Lawyer or an Architect or a Doctor were to open an office, it would undoubtedly be an industry" within the meaning of section 2(j) of the Industrial Disputes Act, 1947. But, we do not think that such activity is prohibited under paragraph 2(i) of the CRZ Notification dated 19th February, 1991. In our view, the expression "industry" used in paragraph 2(i) must take colour from the concept of environmental pollution such as trade effluents which are discharged by the industry which would otherwise require permission from the Pollution Control Board. A careful scrutiny of the different types of activities prohibited under the different clauses of paragraph 2 of the Notification dated 19th February, 1991 supports this view. In fact, construction of hotels is permitted in CRZ-II and CRZ-III as evidenced from paragraph 7 of the said notification. Hence, the contention that the hotel is an "industry" and as such construction of the hotel on the concerned plot is prohibited under paragraph 2 of the CRZ Notification dated 19th February, 1991 must fail. 36. Mr. Kalsekar then urged that even if hotel is not an industry, the construction of the hotel on the concerned plot is contrary to the norms of activities permitted in CRZ-II. Norms for regulation and activities in CRZ-II, as initially provided in the Notification dated 19th February, 1991, read as under : "CRZ-II(i) Buildings shall be permitted neither on the seaward side of the existing road (or roads proposed in the approved Coastal Zone Management plan of the area) nor on seaward side of existing authorised structures. Buildings permitted on the landward side of the existing and proposed roads existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of FSI/FAR. (ii) Reconstruction of the authorised buildings to be permitted subject with the existing FSI/FAR norms and without change in the existing use. (iii) The design and construction of buildings shall be consistent with the surrounding landscape and local architectural style." This was amended by a further Notification dated 9th July, 1997 by which item (i) under the heading "CRZ-II" was substituted by the following : "CRZ-II(i) Buildings shall be permitted only on the landward side of the existing road (or roads proposed in the approved Coastal Zone Management Plan of the area) or on the landward side of existing authorised structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ratio :Provided that no permission for construction of buildings shall be given on landward side of any new roads (except roads proposed in the approved Coastal Zone Management Plan) which are constructed on the seaward side of an existing road." Now to apply this norm of permitted developmental activity to the concerned plot. There is no doubt that the plot is within 500 meters of the High Tide Line taken whether from West, South or from East. To the immediate West of the plot, are a development plan road and an authorised structure, namely, the Sea Rock Hotel, which intervene between the High Tide Line and the concerned plot. 37. The Court had occasion to inspect the concerned plot, and the construction on it, during the course of which it was noticed that the construction on the concerned plot is such that a straight line drawn from the Bandra Fort to the Father Agnel Ashram, or one of the high rise buildings (all authorised constructions) would put the disputed construction on the landward side when reckoned from East side. Despite the dispute raised by the learned Counsel form the petitioners, during the site inspection we had recorded our site inspection notes dated 17th July, 1998 which forms part of the record of the case. We are, therefore, satisfied that the construction on the concerned plot falls on the landward side of a straight line drawn between two existing authorised constructions, reckoned from Eastern side. Thus, in our view, the construction carried out by the sixth and the ninth respondents on the concerned plot does not conflict with the restrictions imposed on constructions in CRZ-II areas and is perfectly consistent with the permitted development activity in CRZ-II area. The Notification dated 9th July, 1997 provides that buildings shall be permitted only on the landward side of the existing authorised structures subject to existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ratio. The prohibition here is only on constructions on the seaward side of the existing road or existing structure. If there was any doubt as to the manner in which the construction had to be carried out, even on the landward side, this is clarified by a subsequent notification which provides that construction shall be permitted on the landward side of an imaginary line between the two authorised constructions drawn parallel to the High Tide Line. Looked at this way also, we find that the construction does not contravene the CRZ-II Regulations. 38. It is next contended for the petitioners that the construction on the concerned plot violates sub-clauses (v), (viii), (ix), (xii) and (xiii) of Clause 2 of CRZ-II Notification dated 19th February, 1991. What is prohibited by sub-clause (v) of Clause 2 of the 1991 CRZ Notification is "discharge of untreated wastes and effluents from industries, cities or towns and other human settlements" within the coastal regulation zone. There is no material on record to show that the hotel constructed by the sixth and the ninth respondents discharges untreated wastes and effluents into the sea. As to the grievance against the Bombay Municipal Corporation Sewerage Purification Plant, the grievance has no substance since the Bombay Municipal Corporation Sewerage Purification Plant is intended to treat city wastes and effluents and render them innocuous before being discharged into the sea. Hence, we see no violation of sub-clause (v) of Clause 2 of 1991 CRZ Notification. 39. Sub-clauses (viii) and (xii) of Clause 2 of the said notification are intended to permit land reclamation for limited purposes and to permit construction activity between Low Tide Line and High Tide Line for carrying of treated effluents and wastes water discharges into the sea. In our view, the Bombay Municipal Corporation Sewerage Purification Plant and the proposed pipeline fall within the activity permitted by these clauses. In fact, by the Notification dated 9th July, 1997, sub-clause (viii) has been completely substituted and the activity of construction of the Bombay Municipal Corporation Sewerage Purification Plant is wholly permitted thereunder. 40. In our view, sub-clause (ix) of Clause 2 of the CRZ Notification has no application at all. Sub-clause (xiii) of Clause 2 of the 1991 CRZ Notification cannot be said to be violated if what is done is permissible construction activity and anything that is reasonably necessary to carry out the permissible activity or construction of a building without violation of any of the provisions of the CRZ Notification. In our view, sub-clause (xiii) cannot be read in isolation and has to be read subject to the regulation of permissible activities under sub-clause (iii). That is why sub-clause (xiii) of Clause 2 of the notification uses the expression "except as permissible under the notification". In our view, if the construction activity is permitted under any other part of the notification, then the prohibition contemplated by Clause 2, sub-clause (xiii) is not attracted. 41. Though Mr. Tulzapurkar urged a fundamental contention that the CRZ Notification is only prospective and cannot affect any constructions which have been commenced or carried out in accordance with the Development Control Rules and other laws in force prior to 17th February, 1991, it is unnecessary for us to examine this contention since we are satisfied that, even if the CRZ Notifications were to apply, the construction carried out on the concerned plot by the sixth and the ninth respondents does not violate any of the provisions of the CRZ Notifications as amended from time to time.42. The view we are taking with regard to the permissible activity in CRZ-II is supported by the judgment of the Madras High Court in (K.V. Ramnathan v. State of Tamilnadu)6, Appeal No. 1287 of 1995 and Writ Petition No. 5971 of 1995 and also the judgment of the Division Bench of this Court dated 10th November, 1996 in Writ Petition No. 619 of 1992 (Per M.B. Shah, C.J. and J.N. Patel, J.), with regard to construction of a toilet block at Gateway of India, which is reported in (P. Navin Kamal v. Bombay Municipal Corporation)7, 1997 (2) All.M.R. 135. (b) Contravention of Urban Land Ceiling & Regulation, Act, 1976 and the exemption thereunder.43. The petitioners contend that the construction of the hotel on the concerned plot contravences the ULCA exemption order dated 25th July, 1978 as it contravenes the conditions of user of the land and the restrictions and conditions imposed in the said order. One of the conditions of the order dated 25th July, 1978 made under section 20 of ULCA granting exemption specifically stipulated was that "no transfer by way of sale mortgage, gift, lease or otherwise" shall be made of the exempted land and that in case of violation of this condition, the exemption order was liable to be revoked. There was also a condition that the sixth respondent was to give an area of 7000 square yards free of cost to the Bombay Municipal Corporation for being maintained as a public park. The petitioners contend that the building of the hotel on the concerned plot violates both these conditions. In our view, this contention has no substance. Under section 19 of ULCA read with section 5 of the Banking Regulation Act, and section 591 of the Companies Act, Citibank is one of the entities in whose favour the land, even though exempted under section 20 of ULCA, could have been mortgaged. The contention that the mortgage of the land to Citibank to raise finances is in violation of ULCA is, therefore, without substance and untenable. Further, there was an express order made by the Government of Maharashtra on 7th February, 1980 issuing a no objection certificate for transfer of the exempted vacant land to the ninth respondent on amalgamation with the sixth respondent subject to certain conditions as to shareholding. By the order of the Company Court dated 3rd February, 1993 made in Company Petition No. 442 of 1992 and Company Petition No. 443 of 1992, the Scheme of Amalgamation of the sixth and the ninth respondents was sanctioned with effect from 1st August, 1992. Consequently, upon the amalgamation scheme coming into operation, the undertaking of the sixth respondent including all assets and liabilities stood vested in the ninth respondent. Even after amalgamation, the shareholding continues to be in the same ratio as it was before, or at any rate, we do not find that the shareholding of the shareholders of M/s. Enjay Estates Pvt. Ltd. (sixth respondent) had fallen below 26% of the total subscribed paid-up equity capital in M/s. Enjay Hotels Pvt. Ltd. (ninth respondent) so as to amount to a contravention of the condition imposed by the exemption order dated 7th February, 1980 made by the Government of Maharashtra. 44. We are in agreement with the contention of Mr. Tulzapurkar, learned Counsel for the sixth and the ninth respondents, that these contentions must be deemed to have been concluded by the judgment of the Supreme Court in S.N. Rao (supra). We have already reproduced the material portion of the judgment in which the Supreme Court rejected all conditions regarding violation of ULCA exemption order by holding that the petitioners were not concerned with these aspects since sufficient area for recreation/garden had been left open. We are, therefore, of the view that the same issue cannot be re-agitated in this subsequent litigation as it would be barred by principles of Res Judicata or principles analogous thereto. See in this connection (Forward Construction Co. v. Prabhat Mandal)8, A.I.R. 1986 S.C. 319. 45. We, are, therefore, not inclined to accept the contention that there is any violation of the exemption order under ULCA or the conditions stipulated therein. We find no substance in the submission of Mr. Kalsekar, learned Counsel for the petitioners, that the land must revert to the State Government for contravention of the conditions of the exemption order. (c) Contravention of the provisions of the Maharashtra Regional and Town Planning Act, 1966.46. The petitioners contend that the revalidation of the building plan for the hotel was illegal because one of the essential conditions laid down in the Ministers order, made under section 47 of the Maharashtra Regional and Town Planning Act, 1966, dated 4th February, 1984 with regard to taking over of 7000 square yards to be used as garden has not been complied with. To recapitulate, by the order dated 4th February, 1984 made under section 47 of the MRTP Act, while allowing the appeal of the sixth respondent, the Minister for Urban Development directed that the Municipal Commissioner, Bombay Municipal Corporation shall take over possession of 7000 square yards of the land proposed to be kept as green on the Southern side "after getting the plot demarcated". Thus, it is apparent that the condition imposed by the Minister was not a condition precedent but a condition subsequent to be followed up. The sixth and the ninth respondents by their letters dated 24th June, 1993 and 22nd December, 1993 addressed to the Bombay Municipal Corporation had requested the Corporation to take possession of 7000 square yards of garden after getting the plot demarcated as directed in the Ministers order dated 4th February, 1984. For one reason or the other, this was not complied with by the Bombay Municipal Corporation. An affidavit was filed by the Bombay Municipal Corporation during the hearing of this writ petition that the Bombay Municipal Corporation was taking the possession of the said area out of the plot of land. As directed by this Court, the Bombay Municipal Corporation has in fact taken possession of the said garden area of 7000 square yards on or about 5th July, 1998. We agree with the contention of the respondents that, because the Bombay Municipal Corporation failed to take over the land, the validity of the sanction for the building plans of the sixth and the ninth respondents would not be affected. The contention that the sanctioned building plans could never have been extended is, therefore, of no substance and fails. (d) Violation of the sanctioned Development Plan.47. The petitioners have challenged the State Governments sanction given to the development plan for H (West) ward on 7th May, 1992 on the ground that Revenue Survey No. 6 is shown as reserved for garden, while according to the petitioners, there are unauthorised hutments thereupon. The contention is that inasmuch as there are already hutments built upon Revenue Survey No. 6, the land cannot be said to be available for garden. 48. In our view, this contention is no longer Res Integra for the petitioners to urge in the present writ petition. This contention, in terms, was argued and rejected by the Division Bench of this Court in Review Petition No. 8 of 1985 (Per Konda Madhava Reddy, C.J. and S.M. Daud, J.). The Division Bench rejected the contention by saying, "that some encroachments have been made thereon and some buildings have been constructed by others does not in any way militate against that land still being reserved under Approved Plan for development into a garden". This judgment of this Court was specifically challenged before the Supreme Court in S.N. Raos case (supra) and the challenge was rejected by the Supreme Court. 49. It is also not possible to say that the State Government was not alive to the fact of the existence of hutments on portions of Revenue Survey No. 6 which was shown as reserved for garden. In fact, the record suggests that the State Government seriously considered the Bombay Municipal Corporations suggestion regarding deletion of reservation for garden from other plots bearing CTS Nos. 919 to 924, but accepted the suggestion of the Bombay Municipal Corporation with regard to CTS No. 922. In other words, the State Government maintained the reservation for garden in respect of all other areas even after due consideration of the fact that there were hutments on the said plot of land. We are, therefore, satisfied that the sanction granted by the State Government to the development plan was not vitiated on account of non-application of mind as contended. The contention must, therefore, fail for that reason also. (e) Challenge to decision of Ministry of Environment & Forest, Government of India.50. The petitioners contend that the Central Government in the Ministry of Environment and Forest had initially opposed the construction of the hotel (as evidenced by the earlier affidavit filed by Ashok Bhatia) and by the letter dated 30th September, 1993, the Central Government in the Ministry of Environment and Forest gave its no objection to the proposed project at the Bandra Lands End. According to the petitioners, this reconsideration was not permissible and suggested mala fides. We find no material whatsoever to suggest that this reconsideration on the part of the Ministry of Environment and Forest was mala fide or arising on account of non-germane considerations. In fact, in the letter of 30th September, 1993, the Ministry of Environment and Forest has indicated clearly the reasons which moved it to reconsider its stand and grant no objection to the proposal made by the State Government, after considering in detail the clarifications provided by the State Government. It has also stipulated and laid down the safeguards which should be adhered to while implementing the project. The clearance given by the Ministry of Environment and Forest is an administrative act and, as long as it satisfies the principles of Wednesbury rationality, it is not the function of this Court to sit in appeal over the reasons which moved the Government to grant such sanction. First, the Ministry of Environment and Forest had the power under the C.R.Z. Notifications read with the Environment Protection Act to grant such sanction for the proposed project. Secondly, we are not satisfied that the sanction was irrational or that it proceeded on account of any collateral or impermissible motives. It appears to us that, after considering the matter in detail, in the light of the clarifications given by the State Government, the Ministry of Environment and Forest reconsidered its stand and granted the sanction. We see nothing wrong in that. At any rate, it is not for us to sit in appeal over the decision of the Ministry of Environment and Forest while exercising writ jurisdiction. The contention, therefore, fails.(f) Challenge to the Corrigendum Notification dated 22nd November, 1996.51. By the Corrigendum dated 22nd November, 1996 issued by the Government of Maharashtra in the Urban Development Department, the entry at page 85, Serial No. 23, Column No. 25, which reads : "The road alignment proposed by the Public Works Department as shown on plan is approved" was substituted by "the road alignment proposed by the Public Works Department is approved and portion of the land marked by the letters A, B, C, D, E, F, G, H on the plan bearing even number shall stand included in garden reservation (Site No. 55) and equivalent areas marked by H, I, J, K on the said plan shall stand included in the residential zone so that the original area of garden reserved (71886 square meters) mentioned in the notification of the even number dated 7th May, 1992 finally sanctioning the development plan of H-West Ward remains unaltered."52. The petitioners contend that this Corrigendum amounts to modification of the sanctioned development plan dated 7th May, 1992 which required following the procedure of inviting objections, considering them and then modifying the development plan as contemplated under the M.R.T.P. Act. Since this procedure was not followed, it is urged that the realignment of the development road and the garden area, as done by the Corrigendum Notification, is invalid and illegal.53. In our view, the Corrigendum does not amount to a modification to the sanctioned development plan. All that happened is that the portion of the area A, B, C, D, E, F, G, H was included in the garden reservation area and an equivalent area marked by letters H, I, J, K was included in the residential zone of the sanctioned Development Plan of H-West Ward without affecting the area of reservation for garden area and the area designated as residential zone. Further, the final Development Plan as sanctioned itself made a provision of the reduction of the breadth of B.J. Road from 120 feet to 60 feet. This change was brought about while sanctioning the Development Plan finally in the year 1992. Consequently, it became necessary to realign the road and the garden reservation. All that the State Government did was to maintain the area of garden reservation in tact and to realign the road. Perhaps, this realignment was also necessary in order to ensure that there was access to public to the garden area by providing for frontage on the road to the garden area.54. The contention is also unsound for the reason that Development Control Regulation 11(4), in terms, empowers the commissioner to shift/interchange the designation/reservation provided the actual area on which the designation or reservation is made is not altered. This exercise of power by the Commissioner or by the State Government does not amount to a modification of the sanctioned Development Plan requiring the following of the prescribed procedure of inviting objections, considering them and sanctioning the plan. We are, therefore, not impressed by this contention and reject it.(g) Challenge to sanctioned Development Plan55. It is next contended for the petitioners that the development plan of 1992 indicates that the Development Plan road would project into the sea beyond the Low Tide Line and, therefore, fall within the territorial waters. The contention is that the territorial waters come within the legislative competence of the State Legislature. Consequently, it is urged that the first respondent State Government cannot formulate a development plan within the territorial waters. In support, Mr. Kalsekar, learned Counsel for the petitioners, cited the judgment of Pendse, J., of this Court in Misc. Petition No. 58 of 1980, confirmed in Appeal No. 51 of 1990 (Per M.N. Chandurkar & P.B. Sawant, JJ.).56. The power of the State Government to include the Development Plan road, even if it extends within the sea, may flow from Item 13 of List II in the Seventh Schedule to the Constitution and it is possible to take the view that it is competent for the State Legislature to enact thereupon. Secondly, having regard to the amendment made in the C.R.Z. Notification dated 19th February, 1991 by the subsequent notification dated 9th July ,1997, sanction of the Central Government for such a road is not necessary. We may mention here that the development plan envisaged a road linking Bandra area to the Southern areas of Bombay by means of a bridge over the sea. There appears to be substance in the contention of the sixth and the ninth respondents that under the amending notification dated 9th July, 1997 such a bridge or sealink would be a permissible activity even under Clause 2(viii) of the C.R.Z. Notification and, prima facie, the clearance of the Central Government for such a road may not be necessary. We need not go into the question of legislative competence of the State Legislature, for the learned Counsel for Bombay Municipal Corporation made a statement that as at present it was only a development plan including a road and that as and when the road is to be constructed, it shall be done only after obtaining the permission of the Central Government and complying with all legal requirements. In this view of the matter, we are of the view that the contention is not required to be decided, as it is not material at this stage.(h) Challenge to permission granted by the State Pollution Control Board.57. The petitioners have filed a separate Writ Petition No. 1202 of 1998 by which they have challenged the permission granted by the State Pollution Control Board to the ninth respondent under the provisions of section 25 of the Water (Prevention & Control of Pollution) Act, 1974. The sanction of the Ministry of Environment and Forest granted to the project on 13th September, 1993 itself required a No Objection Certificate from the State Pollution Control Board to be obtained by the ninth respondent before constructing a hotel on the concerned plot. Obviously, this requirement has been imposed by the Central Government in order to ensure that there is no pollution and to maintain environmental standards. The ninth respondent, therefore, applied to the State Pollution Control Board which has required the ninth respondent to carry out treatment of waste water and effluents. This the ninth respondent is bound to comply with. In fact, even under the C.R.Z. Notification, clauses 2(v) and (vi), discharge of untreated wastes and effluents from industries, cities and towns and other human settlements within the Coastal Regulation Zone or dumping of city or town waste for the purpose of landfilling or otherwise within the Coastal Regulation Zone, are prohibited activities. For this reason, the Central Government in the Ministry of Environment and Forest vide order dated 30th September, 1993 in paragraphs (v) and (vi) imposed conditions that the quality of treated effluents, solid wastes, emissions and noise levels etc. from the project area must conform to the standards laid down under the Environment (Protection) Act, 1986 by the competent authority including the Central/State Pollution Control Board. It was for this reason that the ninth respondent applied to the State Pollution Control Board and obtained its permission subject to certain restrictions which it is bound to comply with. In these circumstances, we feel there is no substance in the challenge to the permission granted to the sixth and the ninth respondents by the State Pollution Control Board.(i) Contravention of the provisions of the Maharashtra Regional and Town Planning Act, 1966 and Development Control Regulations For Greater Bombay, 1991.58. It is strenuously contended for the petitioners that, by virtue of section 48 of the M.R.T.P. Act, a development permission which is granted totally lapses after three annual extensions thereof. It is, therefore, urged that after the third extension of the development permission, it lapsed after the third year from the date of issue and no further extension could have been granted for development to the sixth and the ninth respondents, but that they were obliged to make a fresh application which had to be processed in accordance with the law as it stood on the date of the fresh application. It is, therefore, contended that the development permission granted to the sixth and the ninth respondents is illegal.59. The M.R.T.P. Act, the Development Plan which is formulated thereunder, and the Development Control Regulations, are mutually supplementary and none of them can be read in isolation. The Development Control Regulations are framed in exercise of the statutory power under the M.R.T.P. Act to supplement the broad provisions of the Act. Thus, it becomes necessary to construe the provisions of the M.R.T.P. Act, the Development Plan and the Development Control Regulations harmoniously so that no one of them is rendered redundant or superfluous.60. Chapter IV of the M.R.T.P. Act deals with control of development and use of land included in the Development Plan. Section 43 prescribes the restrictions on development of land and provides that, after the date on which the declaration of intention to prepare Development Plan for any area is published in the Official Gazette, no person shall institute or change use of any land or carry out any development of land without the permission in writing of the Planning Authority. Any person other than the Central or the State Government or the local authority who intends to carry out development of land, has to make an application under section 44 to the Planning Authority for development permission. The Planning Authority deals with the application in the manner prescribed by section 45 of the M.R.T.P. Act and, finally, must grant the permission unconditionally or refuse the permission. The, permission is contained in a Commencement Certificate in the prescribed form. If the person intending to carry out development of land is aggrieved by refusal of the local authority to grant development permission or by any of the conditions imposed while granting permission, he has a right of appeal to the State Government under section 47 and the decision of the State Government in this regard shall be final.61. Development Control Regulation No. 4 is the corresponding provision under which the local authority is required to scrutinise a plan for building and ensure that it complies with the building regulations including the development control regulations, the Development Plan as also the provisions of the M.R.T.P. Act. It is obvious that the building plan has to be sanctioned wholly and not in part. Sub-Rule (4) of Development Control Regulation No. 4 provides that in case of development permission granted before the 1991 Rules commenced, after the building plans are sanctioned, if development has not started within one year, the permission would lapse. Development Control Regulation No. 5(6) provides that development shall be deemed to have started if the construction of a building has been carried out upto the plinth level. Thus, it is clear that there is no question of the development permission validly granted lapsing if the development has already started within one year from the date of such permission. Development Control Regulation No. 5(6) contemplates that, if the work has not already commenced, then the commencement certificate/development permission can be renewed for three consecutive terms of one year each, after which proposals have to be submitted afresh to obtain development permission afresh. A conjoint reading of Development Control Regulation Nos. 4(4), 4(5) and 6(4) suggests that if the work has already commenced within one year from the date of the development permission, then the commencement certificate has to be periodically reviewed from year to year and there is no total lapsing of the commencement permission leading to the requirement of an application for a fresh development permission. The requirement of periodical extensions of the commencement certificate from time to time, or at different stages of construction, appears to be to ensure that the local authority can strictly supervise and check whether the work done confirms to the sanctioned building plans. If, upon inspection at any stage, the local authority is satisfied that there is a deviation from the building plans, the local authority is entitled to prohibit further construction. Conversely, if the local authority is satisfied that the construction has been carried out in accordance with the sanctioned building plans, it can grant permission for further construction, but only as per the already sanctioned building plans. The Development Control Regulations contemplate that if building plans are sanctioned at the first instance, they remain valid for the entire construction, but what is envisaged is that the commencement certificate which is issued in stages has to be renewed from time to time provided work has already commenced within one year.62. Mr. Tulzapurkar, learned Counsel for the sixth and the ninth respondents, alternatively contended that the Bombay Municipal Corporation, which is the local authority, is empowered to grant commencement certificates and extend them from time to time, has a long established and consistent policy of renewing/revalidating the development permission from year to year once the work had already commenced within the time stipulated by Development Control Regulation No. 4(4). The established practice of the Bombay Municipal Corporation appears to be that if the work has already commenced within one year of the initial sanction of the development permission, there is no requirement of a fresh application and commencement certificates are revalidated or extended from time to time after ensuring that construction is in accordance with the initial sanctioned building plans. A fresh application for sanction is required to be made only in such cases where the work has not commenced within one year from the date of the permission being granted. The sixth and the ninth respondents have placed on record Circular-letters of the Bombay Municipal Corporation dated 8th January, 1971, 6th June 1973, 27th February, 1974, 29th May, 1975 and 2nd January, 1976 in support of this long established practice. A persual of these circulars does support the contention of the sixth and the ninth respondents that the Bombay Municipal Corporation interpreted the Development Control Regulations in the manner as contended by the sixth and the ninth respondents and that there appears to be an established practice as suggested by the said respondents.63. Mr. Tulzapurkar, learned Counsel for the sixth and the ninth respondents, contended that on the principle of contemporanea expositio, the interpretation consistently put by the executive incharge of implementation of the statutory rules would be a legitimate aid to construction of the relevant provisions of the M.R.T.P. Act such as section 48. He placed reliance on the observations of the Supreme Court in (Atiabari Tea Co. Ltd. v. The State of Assam)9, A.I.R. 1961 S.C. 232, where the Supreme Court observed that a Court should adopt a realistic and not a doctrinaire approach while interpreting a statutory provisions and ensure that the interpretation is not be in vacuo, but as part of a complex whole. Again, in (M/s. Jallundar Rubber Goods Manufacturers Association v. Union of India and others)10, A.I.R. 1970 S.C. 1589, it was emphasised by the Supreme Court that a statute cannot be read in isolation, but has to be read holistically. To similar effect are the observations of the Supreme Court in (The Tata Engineering and Locomotive Ltd. v. The Gram Panchayat, Pimpri Waghare)11, A.I.R. 1976 S.C. 2463 and (Teddington Chemical Kamgar Sangh v. Maharashtra General Kamgar Union)12, 1985 Mh.L.J. 590 and (Utkal Constructors & Joinary Ltd. v. State of Orissa)13, A.I.R. 1987 S.C. 1454.64. Having considered the matter carefully, it appears to us that the contention of the sixth and the ninth respondents in this behalf is justified. Considering the manner in which the Bombay Municipal Corporation has worked the scheme of Development Control Regulations, it has to be held that if the construction has already commenced within one year of the date of the initial development permission, a situation of a fresh application or a fresh development permission is not contemplated and merely periodical extensions from time to time would keep the development permission alive. The circulars issued by the Bombay Municipal Corporation bear this out. The reliance by the learned Counsel for the sixth and the ninth respondents on the judgment of the Supreme Court in (Raymond Synthetics Ltd. v. Union of India)14, A.I.R. 1992 S.C. 847, to contend that contemporaneous construction placed upon a statutory provision by the administrators entrusted with the task of executing the statute must be upheld, is apt. The contention that it is a practical and reasonable construction of the statute, is also justified. It is established law that where the construction of a statutory provision has been the subject matter of long standing practice extending over a long period and is based on a possible construction of the statutory provisions, it would not be appropriate to upset the same. See in this connection (N. Suresh Nathan v. Union of India)15, A.I.R. 1992 S.C. 564.65. We think there is adequate justification for the contention of Mr. Tulzapurkar in this behalf. A citizen who applies for development permission is only concerned with the end result, namely, the validation of the development permission from time to time. If the Bombay Municipal Corporation, as the administrator of the Development Control Regulations, has followed a long practice of not requiring a fresh application and revalidating the plans periodically, the citizen, having no control over the practice followed by Bombay Municipal Corporation, cannot be faulted if he continues to carry out his development activity in accordance with the extended/revalidated development permission which the Bombay Municipal Corporation has been granting from time to time.66. Considered as a whole, we are of the view that this is not a situation which calls for upsetting the apple cart. The Bombay Municipal Corporation having followed consistently the practice of extending the development permission from time to time if the initial construction commenced within a period of one year of the first grant of development permission, the development permission extended from time to time in the case of the sixth and the ninth respondents cannot be said to be illegal on that count.(j) Contravention of Development Control Regulation No. 59.67. The sixth and the ninth respondents were permitted Floor Space Index in the ratio of 2:1 by the first, second and the third respondents by an order made on 21st August, 1996. The petitioners contend that although, under Development Control Regulation No. 33(4), the Planning Authority with the previous approval of the State Government can grant hundred per cent additional total Floor Space Index in the case of luxury hotel of starred variety, the discretion is limited by the express provision of Regulation No. 59(2) under which a building permitted in Category I or Category II shall in no case exceed in height of 22 meters in the Island City and 16 meters in the suburbs and extended suburbs. It is contended by the petitioners that this height restriction has not been observed by the first, second and third respondents while granting the Floor Space Index of 2:1 for construction of the hotel of the sixth and the ninth respondents and, therefore, the development permission is illegal and contrary to Development Control Regulation No. 59.68. The sixth and the ninth respondents rejoin that this contention was not raised in the writ petition, nor in the three amendments made therein, but was raised for the first time in a supplemental affidavit of Ashok Rawat filed in July, 1997. The sixth and the ninth respondents, therefore, took serious objection to this contention being permitted at this belated stage and urge that the contention should not be permitted to be raised and be rejected in limine. There is much substance in the objection of the said respondents. There is no doubt that this contention appears to have been raised for the first time in July 1997, though the petition itself was amended on three occasions from the date it was filed in the year 1992. Considering that the petition has raised number of other questions, and in order to do complete justice, we shall examine this contention also on merits.69. A reading of Development Control Regulation No. 59 shows that the height restriction in this regulation would apply if the plot on which the construction is being done falls within Category I or Category II. The land falls in Category I if the area is upto :(a) Depth of 200 meters on the landward side of the High Tide Line, or (b) The first nearest existing or proposed development plan road on the landward side from the High Tide Line.whichever is less.Consequently, if any existing or proposed development plan road intervenes between the plot of land and the High Tide Line, the height restriction in Development Control Regulation No. 59 would not apply to such a plot. In the case of the concerned plot, the B.J. Road is an existing development plan road which intervenes between the High Tide Line and the plot. The sanctioned development plan for the H-West Ward makes this point clear. For this reason, we are of the view that the height restriction envisaged in Development Control Regulation No. 59 does not apply to the plot in question and there is no violation of the Development Control Regulations.70. The petitioners contend that the distance from the High Tide Line could be measured in the case of the plot in question not only from the Western side, but also from the Eastern side, in which case there was neither any existing structure, nor existing or proposed development plan road intervening between the High Tide Line and the plot in question. In our view, two inconsistent approaches cannot be taken with regard to the same plot. Even assuming that a plot of land is capable of being approached from two directions from the High Tide Line, if there is an authorised existing structure, or existing or proposed road under the development plan, which intervenes between the plot and the High Tide Line on any one side, then, in our view, such a plot must be considered free from the mischief of the height restriction in Development Control Regulation No. 59. We must construe the height restriction in Development Control Regulation No. 59 in a reasonable manner and not leave it to the vagary of whether the plot is approached from one direction or the other. We are, therefore, of the considered view that, irrespective of what transpires on the Eastern side of the plot, since the plot does not fall within the height restrictive provision of Development Control Regulation No. 59, because of the existing development plan road i.e. the B.J. Road, intervening between the High Tide Line and the plot when approached from West, the height restriction in development control Regulation No. 59 would not apply to the plot. The use of the expression "which ever is less" in Development Control Regulation No. 59 is indative of the statutory intention to apply the height restriction to as few plots as possible and the it should be strictly construed. In a situation where two views are possible on account of the plot being approachable from High Tide Line from more than one side, in our judgment, if it is exempted from the height restriction when measured from one of the directions, such a plot must be held to be exempted totally from the height restriction under Development Control Regulation No. 59. Even otherwise, apart from the view we are taking on the interpretation of Development Control Regulation No. 59, it appears to us that, even if reckoned from the Eastern side, there is a proposed development plan road on the landward side of the High Tide Line, which intervenes between the High Tide Line and the plot in question. Thus, even if Development Control Regulation No. 59 were to be strictly applied, the height restriction would not apply to the concerned plot. The intention of the legislature is clear that even a proposed development plan road is to be treated as an intervening factor.71. That the provisions of a Development Plan have always to be kept in mind in matters of development permission is apparent from the provisions of section 46 of the M.R.T.P. Act. See in this connection the judgment of this Court in Writ Petition No. 4433 of 1998 and Writ Petition No. 4434 of 1998, (Vijay Krishna Kumbhar v. State of Maharashtra & others and Nitin Dattatraya Jagtap v. State of Maharashtra & others)16. Thus, while granting development permission, the Planning Authority is required to keep the provisions of the Development Plan in mind. In other words, while considering the impact of Development Control Regulation No. 59 on the concerned plot, the Planning Authority was bound to keep in mind that even on the Eastern side a proposed development plan road intervenes between the High Tide Line and the plot in question. The development plan road, though existing on the Development Plan only, by legal fiction, must be deemed to be in existence while the Planning Authority grants permission for construction. In this connection, it is useful to remember the oft-quoted dicta of Lord Asquith in (East End Dwelling Company Limited v. Finsbury Borough Council)17, 1951(2) All.E.R. 587(IIL) at page 589, approvingly reiterated by the Supreme Court in a number of judgments, as under :"If your are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of the state of affairs."72. Thus, looked at from West or East, it cannot be held that the height restriction in Development Control Regulation No. 59 would apply or that the Planning Authority erred in not making the height restriction applicable. The Planning Authority was justified in looking at the Development Plan while considering the application for development permission made by the sixth and the ninth respondents. Looked at from this point of view also, there was no error in granting development permission to the sixth and the ninth respondents.(k) Amalgamation of sixth and ninth respondent fraudulent, illegal and intended to circumvent law.73. We have already noticed that, by the order of the Company Court dated 3rd February, 1993 made in Company Petition No. 442 of 1992 and Company Petition No. 443 of 1992, sixth respondent was amalgamated with the ninth respondent with effect from 1st August, 1992 and the undertaking of the sixth respondent including all assets and liabilities stood vested in the ninth respondent, and that the Government of Maharashtra had, by an order dated 7th February, 1990, issued no objection for transferring the exempted vacant land to the ninth respondent on amalgamation of sixth respondent with the ninth respondent subject to certain stipulations as to the continuation of the shareholding ratio. It is contended by the petitioners that the amalgamation of the sixth respondent with the ninth respondent was intended to circumvent the provisions of Chapter XX-C of the Income Tax Act, 1961 and must be treated as invalid. It is also urged that the amalgamation order was obtained by false representations to and by playing a fraud upon the Company Court. Consequently, it is contended that the amalgamation order obtained by fraud must be held ab initio bad and no legal consequence could arise therefrom. In view of the seriousness of the allegations, we have examined them meticulously by summoning the record of the Company Court in Company Petition No. 442 of 1992 and Company Petition No. 443 of 1992 and scrutinising them in the light of the legal submissions made.74. The fifth respondent (Appropriate Authority under Chapter XX-C of the Income Tax Act, 1961) has filed an affidavit dated 17th October, 1994 of one Prayag Jha, Deputy Commissioner of Income Tax, and supported the contention of the petitioners that the order sanctioning the amalgamation scheme has been obtained by playing a fraud on the Company Court. The contention of the petitioners, and the fifth respondent, in support of the allegation of fraud is :---(a) sixth and ninth respondents deliberately misrepresented to the Company Court that only 7227 shares of Rs. 100/- each (valued at Rs. 7,22,700/-) would be issued on amalgamation, and(b) sixth and ninth respondents deliberately suppressed from the Company Court that the value of shares to be issued on amalgamation would exceed Rs. 10 lakhs. Hence, the Company Court was deliberately misled into sanctioning a fraudulent Scheme of Amalgamation.75. In view of the seriousness of the allegation, we have extensively heard Mr. Sethna, learned Counsel who appeared for the fifth respondent Appropriate Authority, on the issue, apart from the Counsel for the petitioners and the sixth and the ninth respondents.76. We may straightaway dispose of the contention that the amalgamation was intended to circumvent the provisions of Chapter XX-C of the Income Tax Act. Amalgamation of sixth respondent with ninth respondent was mooted for the first time in the year 1979 in the letter dated 17th September, 1979, by which the sixth respondent applied for permission of the Government of Maharashtra to amalgamate with the ninth respondent. The Government of Maharashtra made an order on 7th February, 1980 indicating its no objection to the transfer of the land, which was exempted by the Governments order dated 26th July, 1970, to ninth respondent consequent upon amalgamation provided that the shareholders of the sixth respondent continued to hold shares in the same proportion in the ninth respondent company as they held prior to amalgamation. A further stipulation was made that, under no circumstances should the shareholding of the shareholders of the sixth respondent fall below 26% of the total subscribed or paid-up equity capital in the ninth respondent, failing which the exemption order was liable to be revoked. Chapter XX-C of the Income Tax Act, 1961 was enacted and brought into force for the first time in the year 1986. Thus, the contention that the amalgamation was intended to circumvent the provisions of Chapter XX-C must obviously fail since the intention to amalgamate was mooted way back in the year 1979.77. We had directed the ninth respondent to file a detailed affidavit of one of its officer to explain specifically the issue of fraud alleged against it. One Pesi D. Colabawalla, Director of ninth respondent, has filed an affidavit dated 28th July, 1998 in which this issue has been specifically dealt with. In paragraph 7 of the said affidavit, the chronology of the events leading to the amalgamation have been set out. It is pointed out that, prior to the amalgamation scheme being formulated, M/s. Gautam Joshi & Associates, Chartered Accountants, were requested to value the shares of the sixth and the ninth respondents and make a report on the fair share exchange ratio. The Chartered Accountants made a report dated 10th July, 1992 recommending the exchange ratio of 7227 shares of the transferee company (i.e. ninth respondent) for every one share of the transferor company (i.e. the sixth respondent) and noting the need to increase the authorised share capital of the ninth respondent as proposed. This report of M/s. Gautam Joshi & Associates was placed before the Boards of Directors of both the companies who accepted the said report including the suggested share exchange ratio as set out therein. The shareholders of both sixth and ninth respondents acted on the basis that the scheme for amalgamation would provide for a share exchange ratio of 7227 shares of the ninth respondent for every one share of the sixth respondent of Rs. 100/ each. It is on this basis that the shareholders of both the companies approved the proposed Scheme of Amalgamation and empowered the two companies to take steps in law for implementing the proposed Scheme of Amalgamation on the aforesaid basis. Clause 11 of the scheme reads as under :---"11. In consideration of the transfer of assets and liabilities of the Transferor company in favour of the Transferee company in terms of this scheme, the Transferee Company will issue and allot 7227 (Seven Thousand Two Hundred Twenty-Seven only) equity shares of Rs. 100/- (Rupees One Hundred Only) each at par and credited as fully paid up to the members of the Transferor Company whose names are recorded in the register of members, or their respective heirs, executors, administrators, legal representatives or successors as may be recognized by the Board of Directors of the Transferee Company on a date, to be fixed by the Directors of the Transferee Company."While printing Clause 11 of the Scheme of Amalgamation, the share exchange ratio was not mentioned therein. It is explained in the affidavit of Colabawalla that the words "for every one share of the transferor company" were accidentally omitted by the typist operating the computer who followed the method of cut and paste and, since the same computer file was used, wherever the Clause 11 of the scheme was retyped and printed out, the same error continued and was not noticed by any one. The amalgamation petitions i.e. Company Petition No. 442 of 1992 and Company Petition No. 443 of 1992, however, contained prayer (f) which was in the following terms:"(f) that the amalgamation of the petitioner Company with the transferee company be made on the basis that holders of 1,000 existing issued, subscribed and paid up equity shares of Rs. 100/- each of the petitioner Company be entitled to equity shares of Rs. 100/- each of the Transferee Company in the proportion of 7227 equity shares in the Transferee Company of the face value of Rs. 100/- each for every one equity share of Rs. 100/- each of the petitioner Company as provided in Clause (11) of the Scheme of Amalgamation Exhibit "E" hereto."It is explained by the said Colabawalla that the reference to Clause (11) in the prayer clause of both the Company petitions was made in the bona fide belief that Clause (11) of the scheme reflected the share exchange ratio as clearly brought out in the prayer clauses in the two company petitions. As required by section 394-A of the Companies Act, 1956, the Government of India in the Ministry of Law, Justice and Company Affairs, was served with copies of the two company petitions with the prayers as set out hereinabove and the schemes also containing the omission. The Department of Company Affairs addressed a letter dated 25th September, 1992 to the Advocates of the two Companies seeking particulars in connection with the said proposed Scheme of Amalgamation. Paragraph (viii) of the said letter is significant and specifically raised the query, "Exchange ratio postulated in the scheme should be clarified. Whether the transferee company will issue 7227 shares only against all of the 1000 shares held in the transferee company or the number of shares to be issued will be 72,27,000. In case the number will be 72,27,000, please intimate whether the Transferee company has increased its authorised share capital." A copy of this letter dated 25th September, 1992 is annexed as Exhibit "1" to the said affidavit of Colabawalla. This query raised by the Department of Company Affairs was answered by M/s. Wadia Ghandy & Co., Advocates of the sixth and the ninth respondents. M/s. Wadia Ghandy & Co. forwarded three copies of Valuation Reports of the shares of both the companies as also the share exchange ratio. Further, in paragraph (viii) of their letter, M/s. Wadia Ghandy & Co. specifically stated "The Exchange ratio is 7227 Equity Shares of Rs. 100/- each to be issued as fully paid-up by the Transferee Company (i.e. Enjay Hotels Private Limited) for one Equity Share of Rs. 100/- each fully paid of the Transferor Company (i.e. Enjay Estates Private Limited). Also, the Transferee Company has not increased its Authorised Share Capital. The existing Authorised Share Capital of the Transferee company is Rs. 5,00,00,000/- divided into 5,00,000 Equity Shares of Rs. 100/- each and upon the Scheme of Amalgamation being approved by the Honble Bombay High Court necessary increase in Authorised Share Capital shall be made." This letter is annexed at Exhibit "2" to the said affidavit of Colabawalla. Thus, even before the Company Petitions came up for consideration before the Court, the position regarding the share exchange ratio was clearly placed on record and intimated to the Department of Company Affairs by the sixth and the ninth respondents. It is, therefore, contended by the said respondents that there were no mala fides or intention to misrepresent facts or play a fraud upon the Company Court as contended, since the share exchange ratio was clearly spelt out in the communication addressed to the Regional Director of company Affairs much before the Company Petitions were taken up for consideration by the Company Court.78. When the two Company Petitions came up for consideration before the Company Court, both the Counsel for the Regional Director of Company Affairs and Official Liquidator had appeared before the Court. Neither of them raised any objection on the lines as contended by the petitioners, nor were any allegations of fraud or misrepresentations made by either of them. The Company Judge heard and disposed of the two company petitions by an order dated 3rd February, 1993 by which he sanctioned the Scheme of Amalgamation. The order made by the Company Judge is in the following terms :"THIS COURT DOTH FURTHER ORDER that the amalgamation of the Transferor Company with the Transferee Company be made on the basis that holders of 1,000 existing issued, subscribed and paid up equity shares of Rs. 100/- each of the Transferor Company be entitled to equity shares of Rs. 100/- each of the Transferee Company in the proportion of 7227 equity shares in the Transferee Company of the face value of Rs. 100/- each for every one equity share held of Rs. 100/- each of the Transferor Company as provided in Clause (11) of the Scheme of Amalgamation."79. Pursuant to the order of amalgamation made on 3rd February, 1993 in the two Company Petitions, the Advocates for the sixth and the ninth respondents prepared draft of the drawn up order and submitted it to the office of the Company Registrar of this Court for approval. Due notices thereof along with a copy of the drawn up order were served on the Official Liquidator and the Regional Director of Company Affairs calling upon them to attend the meeting for settlement of the draft drawn up order, approval and sealing by the office of this Court. Pursuant to such meeting being held, the drawn up order was prepared in accordance with the draft drawn up order, approved and sealed. In terms of the sanctioned Scheme, the ninth respondent was required to issue 7227 shares of Rs. 100/- each for every one equity share of the sixth respondent. At the relevant time, the authorised capital of the ninth respondent was only Rs. 5,00,00,000/- (Rupees Five crores only). Hence, it was necessary to increase the authorised capital of the ninth respondent beyond the sum of Rs. 72,27,00,000/-. This was specifically suggested by the Chartered Accountants in their Report dated 10th July, 1992 as well as the Regional Director for Company Affairs in his letter dated 25th September, 1992. The Board of Directors of the ninth respondent, by the resolution dated 31st May, 1994, increased its authorised capital from Rs. 5,00,00,000/- to Rs. 75,00,00,000/- divided into 7,50,00,000 shares of Rs. 10/- each by splitting its shares of Rs. 100/- into 10 shares of the face value of Rs. 10/- each. The ninth respondent thereafter submitted to the Registrar of Companies Form No. 5 and Form No. 23 on 31st May, 1994 and paid the filing fees of Rs. 21,00,000/- (Rupees Twenty one lakhs only) for registration of the said forms. Copies of the said forms are placed on record at Exhibits "3" and "4" to the said affidavit of Colabawalla. The ninth respondent then issued 7,22,70,000 equity shares of Rs. 10/- each aggregating to Rs. 72,27,00,000/- to the shareholders of the sixth respondent in accordance with the exchange ratio of 7227 equity shares against one equity share of the sixth respondent held on the record date. a copy of the return of allotment under section 75(1) of the Companies Act, 1956 dated 18th July, 1994 in Form No. 2 filed with the Registrar of Companies evidencing the aforesaid fact is also placed on record at Exhibit "5" to the said affidavit of Colabawalla. The contemporaneous documents all indicate that all steps have been taken by the two companies (i.e. sixth and ninth respondents) acting under the belief that the share exchange ratio would be 7227 shares of ninth respondent for every one share of the sixth respondent. In these circumstances, we are of the view that the omission in Clause 11 of the Scheme for Amalgamation is merely a matter of inadvertence and not intentional misrepresentation or misleading of the Company Court. We are also of the view that there was no fraud as alleged and the mistake was purely inadvertent. Even assuming that Clause 11 of the Scheme contained a material omission, the Company Court always had power to sanction the Scheme after modifying it in such manner as it deems fit. The amalgamation order made by the Company Court in any event clarifies that the ninth respondent would issue 7227 shares for each share of the sixth respondent. The said order has become final and binding and has in fact been acted upon. The only persons who could have raised objections, namely, the shareholders of both the companies, the Central Government, the Official Liquidator and the two companies, are all bound by the said order. The petitioners, by a sidewind in the name of Public Interest litigation, cannot challenge the amalgamation scheme which has been sanctioned and validity carried out in accordance with the provisions of the Companies Act.80. We are of the view that the amalgamation, which has become final and binding, cannot be permitted to be challenged by the petitioners, without locus standi, in a collateral proceeding in the present writ petition. An amalgamation order can only be challenged under the Companies Act by an Appeal under section 391(7) by any one of the parties, but no such appeal was ever filed. From 1993 onwards, no one (except the Writ petitioners by the present writ petition) has complained that the amalgamation order was vitiated for any reason whatsoever. It is also of interest to note that the Appropriate Authority under Chapter XX-C of the Income Tax Act (i.e. the fifth respondent) had also sought clarifications from the ninth respondent which were forwarded by the letters dated 2nd June, 1994, 9th June, 1994 and 14th June, 1994 written by M/s. K.K. Ramani & Co., Chartered Accountants, on behalf of the ninth respondent. The Appropriate Authority had also called the ninth respondent for a hearing which was held sometime in June 1994. Even in the affidavit of Prayag Jha dated 17th October, 1994, in which the omission in Clause 11 of the Amalgamation Scheme has been highlighted and detailed reference has been made to the order of the Company Court, issuance of shares by the ninth respondent and so on, there is no prayer made that the order of amalgamation be set aside or reviewed or recalled, nor were any steps taken by the fifth respondent to set aside the amalgamation order on the ground of misrepresentation, suppression of facts or fraud, as contended before this Court.81. It is contended by the learned Counsel for the sixth and the ninth respondents that neither the Appropriate Authority (fifth respondent) nor any one else could challenge the order dated 3rd February, 1993 at this point of time. In the alternative, it is contended that the Appropriate Authority is estopped from doing so since it had taken no steps at any point earlier and allowed the shareholders to alter their position to their detriment. The reliance placed on the judgment of this Court in (J.K. (Bom.) Pvt. Ltd. v. New Kaiser J. Hind Spinning and Weaving Co. Ltd. & others)18, 1967(2) Company Law Journal, page 272 appears justified. 82. The contention of Mr. Tulzapurkar, learned Counsel for the sixth and the ninth respondents, that the amalgamation order cannot be challenged in collateral proceedings appears to be well founded. The fasciculus of sections 391 to 394 of the Companies Act constitutes a complete code on the subject of amalgamation. See in this connection (PMP Auto Industries Ltd.)19, 1994(80) Company Cases 289 and (Vasant Investments Corporation v. Official Liquidator)20, 1981(51) Company Cases 20. Section 391(7) of the Companies Act, 1956, specifically gives a right of appeal from any order passed under the said section. The Central Government or the Appropriate Authority or any one interested could have filed an appeal under sub-section (7) of section 391 of the Companies Act. But, as a matter of fact, no one filed such an appeal. Thus, the order has become final and binding under section 391 of the Companies Act. In the hierarchy of Courts, this Court has no special jurisdiction under Article 226 to sit in appeal over an order made under section 391 of the Companies Act, 1956 which has become final, binding and conclusive. The sixth and the ninth respondents placed reliance on the judgment of the Calcutta High Court in (Krishna Nath v. Dinajpur Loan Office)21, A.I.R. 1938 Cal. 337 and the judgment of the Supreme Court in (S.V. Kondaskar v. V.M. Deshpande)22, A.I.R. 1972 S.C. 878 and (Assistant Commissioner of Income Tax v. A.K. Menon)23, 1995(5) S.C.C. 200. In our view, these judgments do support the contention canvassed by Mr. Tulzapurkar that it is not open to this Court while exercising writ jurisdiction in a Public Interest Litigation to sit in judgment over the correctness of an order made under section 391 by the Company Court which has become final, conclusive and binding.83. Finally, Mr. Tulzapurkar contended that even assuming this Court were to hold that the amalgamation order was bad, it would make no difference to the construction already put up on the concerned plot for several reasons. First, if the amalgamation were to be set aside by this Court, then the sixth respondent company would be deemed to be in existence with all its assets and liabilities and rights and obligations and the status quo ante as existing immediately prior to the amalgamation order would stand restored. This would mean that the sixth respondent would continue to be the owner of the property and entitled to exercise the benefits on all terms already granted to it. There would be no question of considering the impact of Chapter XX-C of the Income Tax Act, 1961 since there would be no amalgamation and no transfer. Thus, the end result would continue to be the same, namely, that the construction on the concerned plot would be valid if it was not otherwise invalid. Looked at from any point of view, the validity of the amalgamation order is, therefore, wholly immaterial and irrelevant in the submission of the learned Counsel. We are inclined to agree. Though we have examined the issue at length, from the material on record, it is not possible to hold that the amalgamation order dated 3rd February, 1993 was in any way vitiated. Much less are we in a position to say that the construction put up on the concerned plot by the sixth and the ninth respondents is illegal for the said reason.(1) Application of Chapter XX-C of the Income Tax Act, 1961. 84. The petitioners have by an amendment to the writ petition made on 16th November, 1992 prayed that the fifth respondent (Appropriate Authority under Chapter XX-C of the Income Tax Act, 1961) be directed to take appropriate measures against the sixth and the ninth respondents for violation of the provisions of Chapter XX-C of the Income Tax Act, 1961. Though the plea is somewhat vaguely taken in the writ petition, it was supported and amplified by the fifth respondent in the affidavit of Prayag Jha, Deputy Commissioner of Income Tax, dated 17th October, 1994 and the further affidavit of A. Kumar, Assistant Commissioner in the Appropriate Authority in the Income Tax Department dated 24th July, 1998.85. It is contended in the affidavit of Prayag Jha that the Authority under Chapter XX-C had no role to play at the stage of admission of the writ petition and, therefore, the fifth respondent did not file any affidavit in reply to oppose the admission. It is also accepted that the fifth respondent adopted a policy of wait and watch with regard to the filing of declaration in Form 37-I. The stand of the fifth respondent is that, unless a declaration in Form 37-I is filed by the intending transferee/transferor in any transaction of immoveable property in excess of Rupees Ten lakhs (at the relevant time), the fifth respondent had no jurisdiction. It is contended that the Appropriate Authority could not take further action suo motu since it had no jurisdiction for want of filing of a declaration in Form 37-I. The Court having made no specific directions against it during the pendency of the Writ Petition, the Appropriate Authority could not have taken action under section 276- AB of Chapter XX-C of the Income Tax Act. It is pointed out by the fifth respondent that, even while this writ petition was pending before this court, the petitioners had moved the Finance Minister, Government of India, requesting him to look into the matter of transfer of the concerned plot at Bandra Lands End, making serious allegations of fraud and contravention of law including the provisions of Chapter XX-C of the Income Tax Act. The Deputy Commissioner of Income Tax of the fifth respondent by his letter dated 7th June, 1994 informed the petitioners that they may discuss the matter with the Members of the Appropriate Authority. Pursuant to the discussions, the Appropriate Authority issued a letter dated 23rd May, 1994 and called upon the concerned parties, namely, M/s. Enjay Estates Private Limited, transferee (sixth respondent) and M/s. Enjay Hotels Private Limited, transferor (ninth respondent) for discussions. Written submissions were filed by the sixth and the ninth respondents through their Auditors, M/s. K.K. Ramani & Co., on 2nd June, 1994 and 17th June, 1994. M/s. Ramani & Co. also filed certain documents along with their submissions and by a letter dated 17th June, 1994 M/s. Ramani & Co. had admitted that as on that date they were not in a position to submit the audited statements of accounts of the ninth respondent as the same had not been finalised. The fifth respondent urges that even a situation of amalgamation of one company with other would result in transfer of immoveable property within the meaning of Chapter XX-C and, therefore, such a transfer would require a no objection certificate from the Appropriate Authority under the provisions of Chapter XX-C since the value of the land in question exceeded Rupees Ten lakhs which stood transferred from sixth respondent to ninth respondent as a consequence of the amalgamation order. Though it is the contention of the fifth respondent that such a transfer would be covered by the provisions of Chapter XX-C, and that there was an obligation to file declaration in Form 37-I as required thereunder, since no such declaration in Form 37-I had been filed, the fifth respondent felt that it had no jurisdiction to investigate the case and, therefore, was helpless in the matter, though the fifth respondent was satisfied that the amalgamation was a device for transfer of land from one owner to another and also that the situation was one of transfer of shares in the company falling within the scope of Chapter XX-C of the Income Tax Act. Peculiarly, the fifth respondent contends in the affidavit that this was only a prima facie view and that a final view can be taken only after the procedure prescribed under Chapter XX-C was fulfilled (meaning thereby a declaration in Form 37-I was filed) and after hearing the interested parties. Thus, it appears that, despite the prima facie view that the transfer of the land in question from the sixth respondent to the ninth respondent pursuant to the amalgamation of the two companies attracted the provisions of Chapter XX-C of the Income Tax Act, 1961, the fifth respondent was unwilling or unable to take any action under Chapter XX-C of the Income Tax Act for want of a declaration filed in Form 37-I. 86. On 24th July, 1998, while the writ petition was being argued, an affidavit as directed by this Court was filed by A. Kumar, Assistant Commissioner in the office of the fifth respondent. After referring to the facts which were already pleaded in the earlier affidavit of Prayag Jha, the said A. Kumar pointed out that during the relevant period i.e. 1992-93, the jurisdiction of the Appropriate Authority under Chapter XX-C would be attracted if the transferred property was of the value of rupees Ten lakhs or above. It was contended that Clause 11 of the Scheme of Amalgamation presented to this Court had, inter alia, recited that the transferee company would issue and allot 7227 equity shares of Rs. 100/- each at par and credited as fully paid to the members of the transferor company and a reading of the above clause induced him to believe that the transferee company would issue and allot 7227 equity shares of Rs. 100/- each to the members of the transferor company. Thus, in consideration of the transfer of assets and liabilities of the transferor company, the transferee company would issue 7227 shares of Rs. 100/- each against the total shareholding of 1000 shares of different members of the transferor company, meaning thereby that the entire assets of the transferor company would stand transferred to the transferee company at the cost of Rs. 7,22,700/-. Since the substratum of the transferor company was only one asset, which was its land holding, and since it was not carrying out any other substantive business, it would mean that the assets of the transferor company stood transferred for a consideration of Rs. 7,22,700/- to the transferee company. Since the "apparent consideration" indicated in the amalgamation order was much below Rupees Ten lakhs, the Authority thought that it had no jurisdiction to entertain the case. Consequently, there was no occasion for the sixth and the ninth respondents to point out to the Company Court while sanctioning the Scheme of Amalgamation under section 394 of the Companies Act as to whether a no objection certificate had been obtained from the Competent Authority. The said A. Kumar also pointed out that, despite the misrepresentation in Clause 11 of the Scheme, the sanctioning order of the Company Court dated 3rd February, 1993 makes it clear that the consideration amount for the transfer of land would work out to Rs. 72,27,00,000/-. He, therefore, contends that if this figure of Rs. 72 crores consideration was present to the mind of the Company Court, perhaps the Company Court itself would have sought a clarification from the sixth and the ninth respondents as to whether they had obtained a no objection from the Appropriate Authority. In other words, the Appropriate Authority pleads helplessness for want of filing of the declaration in Form 37-I and on account of the amalgamation order already made by the Company Court. 87. In view of the serious allegations made that there was a deliberate attempt to circumvent the provisions of Chapter XX-C of the Income Tax Act, 1961, we directed the Appropriate Authority to make submissions through Counsel and we have heard Mr. Sethna, learned Senior Counsel for the fifth respondent at great length on the legal issues, even though Mr. Tulzapurkar, learned Counsel for the sixth and the ninth respondents, vehemently opposed this contention being permitted to be urged in this Writ Petition initiated as Public Interest Litigation. Apart from dealing with the legal contentions revolving around the provisions of Chapter XX-C, the learned Counsel for the sixth and the ninth respondents strongly urged that this Public Interest Litigation, which was initiated ostensibly to prevent building activity on land falling within CRZ area, contrary to the permissible Development Control Regulations and other building laws, was now being used as an instrument of harassment of sixth and ninth respondents by raising the issue of applicability of Chapter XX-C. Without prejudice to the said general submission, Mr. Tulzapurkar also addressed us on merits of the contention, which we shall consider.88. The first contention urged on behalf of the sixth and the ninth respondents is that the petitioners are not entitled to raise this contention and no question of public interest arises, since this issue is alien to this Public Interest Litigation which is primarily concerned with the implementation of the Environment (Protection) Act, the CRZ Regulations and the Development Control Regulations. We are, however, not inclined to shut out the arguments on the issue, despite the contentions of the learned Counsel for the sixth and the ninth respondents. We are aware that giving of overwide leeway in a Public Interest Litigation might open up a pandoras box, but having regard to the chequered history and the rendering course of this litigation, we would prefer to exercise this spectre once and for all instead of allowing it to haunt different courts from time to time. Hence, the extra effort on our part, overruling the preliminary contention of Mr. Tulzapurkar. 89. At the outset, we notice that there was no impediment in the way of the fifth respondent Appropriate Authority from taking action under Chapter XX-C of the Income Tax Act, for no Court had restrained it from acting. It is the firm belief of the fith respondent that it gets no jurisdiction to act under section 276 -AB, unless a declaration under section 37-I was filed. Thus, the inhibition, if any, arose from the view of the statute taken by the Appropriate Authority and not on account of any external circumstances.90. It is urged for the sixth and ninth respondents that before a petition is entertained under section 394 of the Companies Act for sanctioning the amalgamation of a scheme, the Court under section 394- A of the Act is required to give notice of such application to the Central Government and take into consideration the representations, if any, made to it by the Government before passing any order. That such a notice under section 394-A had been issued to the Central Government before the petitions for amalgamation were entertained by the Company Court. Upon such notice being received, if at all any Department of the Central Government had any objection to the Scheme of Amalgamation being sanctioned, on any ground whatsoever, it was the responsibility of such Department to put forth its views before the Company Court. No such attempt was made by the appropriate Authority under Chapter XX-C or by any one on behalf of the Central Government. Consequently, the order made sanctioning the amalgamation would operate as res judicata and cannot now be reopened on the contention urged by the petitioners. It is contended that the principle of res judicata is applicable to Public Interest Litigation also. The judgment of the Supreme Court in Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri, A.I.R. 1986 S.C. 391, is cited in support.91. It is next contended that the question as to applicability of Chapter XX-C should and ought to have been raised by the Central Government/Appropriate Authority at the time of consideration of the amalgamation scheme, before the order sanctioning the scheme was made on 3rd February, 1993. Such a contention not having made at the appropriate time, should not now be permitted to be raised as otherwise it would reduce the notice required to be given under section 394-A to an empty ritualistic formality and rob the said section of its true purpose.92. In order to appreciate the rival contentions, it is necessary to understand the scheme of Chapter XX-C. Section 269-UC provides that, notwithstanding anything contained in the Transfer of Property Act, 1882, or any other law for the time being in force, no transfer of any immovable property in the area where the chapter applies shall be effected if its value exceeds Rupees Ten lakhs, unless a written agreement for transfer is entered into between the transferor and the transferer, in accordance with sub-section (2), at least four months in advance of the intended date of transfer. The section also requires the agreement between the parties to be reduced to writing in the prescribed form, giving the particulars and verified in a prescribed manner and furnished to the Appropriate Authority within the prescribed time. The prescribed form of declaration is Form 37-I.93. Section 269-UD of the Income Tax Act empowers the Appropriate Authority to make an order for purchase by the Central Government of the immovable property involved. Upon such an order being passed, the property vests in the Central Government by virtue of section 269UE. Failure to file a declaration in Form 37-I is declared to be an offence under section 276-AB. The efforts of the fifth respondent were concentrated on emphasising the term "apparent consideration" defined in Section 269-UA. This expression, in relation to immovable property, is separately defined with respect to incidents of sale, exchange, lease, rent. The term "Transfer" is also defined in Clause (f) section 269-UA in wide and general terms. Put in a nutshell, the argument of the Appropriate Authority is that the transaction by which the two companies, namely, sixth and the ninth respondents were amalgamated, amounted to a "transfer" within the meaning of Clause (f) of section 269-UA and that the "apparent consideration" for the transfer was the consideration indicated in Clause 11 of the scheme itself and it being far in excess of Rupees Ten lakhs, there was an obligation to file a declaration in Form 37-I, and by reason of failure to do so, the consequences of application of Chapter XX-C could not be avoided. 94. Mr. Tulzapurkar, Learned Counsel for the sixth and the ninth respondents, strongly urged that Chapter XX-C of the Income Tax Act, 1961 is not intended to apply to transfers effected under orders of a Court pursuant to sections 391 to 394 of the Companies Act, since the object of Chapter XX-C is to prevent evasion of tax or under-valuation of immovable property when it is transferred by act of parties. He cited the judgment of the Supreme Court in (C.B. Gautam v. Union of India & others)24, reported in 1993 (1) S.C.C. 78, wherein the Supreme Court has traced out the legislative history of Chapter XX-C. Though the Supreme Court was primarily concerned with the challenge to the constitutional validity of the provisions contained in Chapter XX-C, while upholding the constitutional validity, the Supreme Court pointed out that : (a) the provisions of this Chapter are attracted only when there is a significant under valuation of the property to be sold with the intention of evading tax; (b) the provision made for compulsory purchase can be effected only for reasons which are germane to the object of Chapter XX-C, namely, to overcome attempts at evasion of tax; and (c) the provisions of Chapter XX-C are not intended to affect parties unconnected with tax evasion. It is contended that a situation of amalgamation takes place under the direct supervision of the Company Court, after notice to the Central Government, and, therefore, it is not a situation in which there could be any tax evasion. Consequently, it is urged that the provisions of Chapter XX-C would not be attracted. 95. It is next contended that the provisions of Chapter XX-C would apply only to cases of "transfer" as defined by Clause (f) of Section 269-UA. A scrutiny of the definitions of "apparent consideration" given in Clause (b) and "transfer" given in Clause (f) would unmistakably indicate that the transfers to which the provisions of Chapter XX-C are intended to apply, are only transfers under agreement or contractual transfers and not statutory transfers or transfers effected by orders of the Court or by operation of law. In a situation of amalgamation, the transfer is not by way of sale, exchange, lease or rent so as to fall within section 269-UA. Further, the process by which the land in question stood vested in the transferee company by virtue of the amalgamation order, would not answer the description of "immovable property" within the meaning of Clause (d)(ii), nor does it answer the description of "transfer" as defined in Clause (f)(ii) of section 269-UA of the Income Tax Act. See in this connection (Sailendra Kumar Ray v. The Bank of Calcutta)25, 1948(18) Company Cases 1 and (Sayananidhi Virudhunagar Ltd. v. A.S.R. Subramanya Nadar)26, A.I.R. 1951 Madras 209 and (Telesound India Ltd. In Re.)27, 1983(53) Company Cases 926. In Sailendra Kumar Rays case (supra), the Calcutta High Court held that in a situation of amalgamation even if it can be said that there was a transfer of asset, the transfer was not by way of an assignment but by the order of the Court backed up by the force of a statutory provision and by operation of law. In Sayayanidhis case (supra), the Madras High Court reiterated this preposition. In Telesoundss case (supra), it is held that as amalgamation has its origin in statute and is statutory in character, the transfer and vesting is by operation of law and not an act of transferor company, nor an assignment by it, but is the result of a statutory instrument. In J.K. (Bom.) Pvt. Ltd. v. New Kaiser J. Hind Spinning and Weaving Co. Ltd. & others, 1967(2) Company Law Journal 272, this Court cited with approval the decision of the English Court in (Re Garner Motors Ltd.)28, 1937(1) All.E.R. 671 and held that a scheme of amalgamation has statutory operation when sanctioned by the Company Court under the relevant provisions of the Companies Act and is distinct and different from a mere agreement signed by the necessary parties. Even if the scheme is approved by all concerned parties by consensus, merely because it is so agreed upon, the Court is not obliged to put its imprimatur on it. The Court has the discretion and power to reject a scheme even if all the shareholders and creditors have agreed to it. But, once the scheme is scrutinised by the Company Court and sanctioned by an order made by it under section 391 of the Companies Act, it ceases to retain the character of contract and operates by force of the statute. This judgment was considered by the Supreme Court in appeal in (J.K. (Bom.) Pvt. Ltd. v. New Kaiser J. Hind Spinning and Weaving Co. Ltd. & others)29, 1970(40) Company Cases 689, and the Supreme Court reiterated that once a scheme becomes sanctioned by the Court, it ceases to operate as a mere agreement between the parties and becomes binding on the company, the creditors and shareholders and has statutory operation by virtue of the provisions of section 391 of the Companies Act. Such a scheme sanctioned by the Company Court is statutorily binding even on creditors and shareholders who might have dissented from it or who might have opposed its being sanctioned. It, therefore, has statutory sanction in that sense. The Supreme Court also approved the observations in Re Garner Motors Ltd. (supra) while coming to this conclusion. The observations of the Calcutta High Court in (House of Labourers Ltd. v. Comilla Baking)30, A.I.R. 1937 Cal. 381 are to similar effect. 96. There is overwhelming authority of precedents suggesting that when an amalgamation takes place, the transfer of assets takes place by the force of the Company Courts order and/or by operation of law; it ceases to be a contractual or a consensual transfer. The contention, therefore, is that Chapter XX-C is not attracted to such a transfer by operation of law. This contention has substance and needs to be upheld. 97. It is alternatively contended by the Counsel for the sixth and the ninth respondents that section 296-UA is not intended to apply to all types of transfers, but only to some particular types of transfers as there is no reference therein to a transfer consequent upon an amalgamation scheme. Hence, it is contended that a transfer consequent upon amalgamation falls outside the sweep of section 269-UA. In order to drive home this point, the learned Counsel drew our attention to section 2(1B) of the Income Tax Act, 1961 which defines the expression "amalgamation". Sections 45 and 47 of the Income Tax Act which deal with capital gains arising upon a transfer of a capital asset, expressly exclude a situation of amalgamation for the purposes of capital gains. Similarly, section 45 of the Gift Tax Act, 1958 provides that no gift tax will be leviable in a situation of amalgamation. The term "amalgamation" under the provisions of Gifts Tax Act has the same meaning as in section 2(1B) of the Income Tax Act. It is, therefore, contended that, in an amalgamation, there is neither any sale, nor any exchange of any immovable property, nor any lease thereof. See in this connection (Commissioner of Income Tax v. Rasiklal Manecklal HUF)31, A.I.R. 1989 S.C. 1333.98. It is true that in a case of amalgamation there is a share exchange ratio prescribed according to which the shareholders of the transferor company would be entitled to the shares of the transferee company. This, however, does not make it a situation of exchange of immovable property, or relinquishment of any right to immovable property so as to make the transaction amenable to section 269-UA of the Income Tax Act. There is neither sale nor purchase in a case of amalgamation. Section 54 of the Transfer of Property Act defines "sale" as a transfer of ownership in exchange for a price, "price" being defined in section 2(10) of the Sale of Goods Act as any consideration paid for sale of the goods. In (CIT v. Motors and General Stores Pvt. Ltd.)32, 66 ITR 692 , it was pointed out by the Supreme Court that the presence of money consideration is an essential element of a transaction of sale. Tested by this yardstick, it would appear that in an amalgamation no consideration in any form- much less in the form of money- flows from the transferee company to the transferor company, which was the erstwhile owner of the assets. The shares are issued by the transferee company, not to the transferor company, but to the shareholders of the transferee company, who must necessarily be treated as distinct from the transferor company itself. The shareholders of the transferor company could not be deemed in law to be the owners of the assets of the transferee company, nor can they be said to have held any interest in the assets of the transferee company. See in this connection (Bacha Guzdar v. Commissioner of Income Tax)33, A.I.R. 1955 S.C. 74. Right from the time of Solomons case, a company has always been treated as a separate and distinct juristic person with a personality of its own different from that of its shareholders. No shareholder can legitimately claim to have an interest in any of the properties or assets held by the company. The judgment of the Supreme Court in (Accountant & Secretarial Services Pvt. Ltd. v. Union of India)34, A.I.R. 1988 S.C. 1708, was pressed into service to contend that a bank constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, though materially controlled by the Central Government, has a distinct personality of its own and its property cannot be said to be the property of the Union of India. Hence, it is contended that by the act of amalgamation, there was no sale of any assets by the transferor company (sixth respondent) to the transferee company (ninth respondent) in the amalgamation. Thus, it is urged that there being no sale or exchange or lease of immovable property in the case of amalgamation, the transfer of the assets of the sixth respondent to the ninth respondent does not fall within the ambit of Chapter XX-C of the Income Tax Act, 1961.99. Mr. Tulzapurkar referred extensively to the provisions of Chapter XX-C of the Income Tax Act and pointed out that the transfer on an amalgamation cannot fall within the sweep of section 269-UA of the Income Tax Act even if we were to consider the extended definitions of "immovable property" within the meaning of Clause (d)(ii) and "transfer" as defined in Clause (f)(ii) of section 269-UA for the following reasons :(a) there is no acquisition of shares by the transferee company in the case of amalgamation and, therefore, neither is the case one of immovable property as defined in Clause (d)(ii) nor is it a situation of transfer as defined in Clause (f)(ii);(b) In a situation of amalgamation, the transferee company does not acquire any shares giving to it the right of enjoyment of any property. The shares, on the other hand, are issued by the transferee company to the shareholders of the transferor company;(c) Acquisition of shares by the shareholders of the transferor company does not enable them to acquire the assets of the amalgamated company, nor can they be said to enjoy any property or asset of the amalgamated company. Hence, it is contended that a transfer of assets pursuant to a scheme of amalgamation sanctioned by the Court, neither falls within the ambit of "immovable property" as defined in Clause (d)(ii) of section 269-UA, nor amounts to a "transfer" within the meaning of Clause (f)(ii) of section 269-UA of the Income Tax Act.100. "Apparent consideration", as defined in Clause (b) of section 269-UA of the Income Tax Act, is an inalienable factor which must be reckoned with in the application of Chapter XX-C for if the Appropriate Authority is satisfied that there is undervaluation, then it is empowered to purchase the property at the apparent consideration. In a situation of amalgamation, there is no consideration- apparent or otherwise-nor is it payable in respect of any specific immovable property. In (Li Taka Pharmaceuticals Ltd. v. State of Maharashtra & others)35, 1996(4) Bom. Cases Reporter 100, this Court pointed out that when an amalgamation takes place what is transferred is a going concern and not the assets and liabilities separately. Consequently, while assessing stamp duty, this Court was of the view that the concerned authority has to levy duty only on the basis of the price of the shares allotted to the shareholders of the transferor company, or other consideration if paid, and not by separately valuing the assets and the liabilities. Thus, when an amalgamation takes place, there is no sale or exchange of individual assets of one company for another. Consequently, it cannot be said that there is consideration paid for transfer of any particular asset of the transferor company. Even if the assets of the transferor company include items of immovable property, for the purposes of valuation and amalgamation, they must be treated as moveable properties. In (Malabar Fisheries Co. v. I.T. Commissioner, Kerala)36, A.I.R. 1980 S.C. 176, in a situation of dissolution of assets of the partnership firm, the Supreme Court held that there is no transfer of assets involved upon dissolution of the partnership and distribution of its assets. To similar effect is the view of the Supreme Court in (CIT v. Dewas Cine Corporation)37, A.I.R. 1968 S.C. 678 and (Commissioner of Income Tax, West Bengal v. Juggilal Kamalapat)38, A.I.R. 1967 S.C. 401. In both the judgments, the Supreme Court has taken the view that the allotment of property of the firm upon its dissolution does not amount to sale. In (Addanki Narayanappa v. Bhaskara Krishnappa)39, A.I.R. 1966 S.C. 1300, the Supreme Court has specifically observed that even if the assets of the dissolved firm include immovable properties, for the purposes of their allotment amongst partners, they must be treated as moveable property. Thus, it is contended that an amalgamation falls outside the purview of section 269-UA of the Income Tax Act, 1961.101. It is then urged that, in order to attract the provisions of Chapter XX-C of the Income Tax Act, there must exist an "agreement" within the meaning of section 269-UC of the Income Tax Act. Section 269-UC speaks of an "agreement" as a final, concluded and binding agreement between the parties. The submission is that a scheme of amalgamation, even if agreed to unanimously by the shareholders and creditors, does not attain the character of a final, binding and concluded agreement as provided under section 269-UC of the Income Tax Act. The reason for this is simple for until sanctioned by the Court, a scheme for amalgamation is inchoate and without effect. It becomes effective only upon sanction by the Court and that too to the extent sanctioned by it. Thus, whatever might have been in the contemplation of the shareholders and creditors agreeing upon a scheme of amalgamation, what is enforceable in law is only that portion of the scheme which is sanctioned by the Court. But for the sanction of the Court, the scheme would remain wholly unenforceable, consequently, it does not answer the description of the expression "agreement" contemplated under section 269-UC of the Income Tax Act.102. It is contended that a scheme of amalgamation could not amount to an agreement within the meaning of section 269-UC of the Income Tax Act for another reason also. Under section 269-UC, once an agreement has been entered into in the prescribed form i.e. Form No. 37-I and is filed with the Appropriate Authority, no modification or alteration in any of its terms is permissible. Again, the agreement itself has to be filed within the period stipulated in sub-clause (sic section) (1) of section 269-UC. In the case of an amalgamation scheme, it is not possible to postulate the date on which the transfer would become effective since the parties have no control on the date on which the sanctioning order would be made by the Court. Thus, there is no way of complying with the period within which such a document is to be filed. Secondly, the scheme of amalgamation, though unanimously agreed to by the shareholders and creditors, may be rejected by the Court or approved only in part while making the sanction order. If such a scheme of amalgamation were to be considered as an agreement within the meaning of section 269-UC, it would mean that, after the declaration has been filed in Form 37-I, it may cease to exist or may be varied in material particulars as a result of the sanction order. This situation strongly militates against a scheme being considered as an agreement within the meaning of section 269-UC in the submission of the learned Counsel. It is urged that if at all the Legislature intended that Chapter XX-C of the Income Tax Act, 1961 should apply to an amalgamation scheme, then it would have made an express provision for such a situation. The absence of reference to an amalgamation scheme is not accidental, but intentional, since the Legislature did not intend an amalgamation scheme to be covered by the provisions of Chapter XX-C, even if there is consequential transfer of immovable property. 103. The valuation put on the shares cannot be treated as "apparent consideration" for the purposes of transfer. If the valuation of the shares proposed to be issued upon amalgamation is below the stipulated limit, then obviously the provisions of Chapter XX-C would not apply. However, while sanctioning the scheme, the Company Court may modify the scheme and provide for issuance of larger number of shares upon amalgamation. When this happens, then, for the first time, it would be the stage when the actual valuation or the consideration becomes known. Thus, the consideration would be known at the stage of sanctioning of the amalgamation scheme and it would be practically impossible for any one to comply with the provisions of section 269-UC of filing the declaration in Form 37-I in advance, or for seeking the no objection certificate from the Appropriate Authority. 104. Chapter XX-C contemplates payment of consideration by the transferee to the transferor. In a scheme of amalgamation, no consideration is paid by the transferee company to the transferor company, but shares are issued to shareholders of the transferor company who were not the legal or beneficial owners of the assets transferred to the transferee company upon amalgamation. (See in this connection Guzdar (supra). This also militates against the contention advanced by the fifth respondent. 105. Chapter XX-C provides for compulsory purchase of immovable property sought to be transferred, in the event of under valuation, at the price indicated as "apparent consideration". This also cannot be fulfilled in a case of amalgamation, since there being no transfer of individual assets for agreed consideration, it is not possible to stipulate as to what consideration, apparent or actual, was for transfer of any individual asset of the transferor company. Thus, there is no way of knowing whether there is under valuation, as contemplated by Chapter XX-C, in respect of a particular property.106. Under the scheme of Chapter XX-C, payment at the rate of apparent consideration is to be paid in the event of compulsory purchase to the owner i.e. the transferor. Once an amalgamation scheme is sanctioned by the Court, the transferor company ceases to exist from the date on which the scheme comes into force and loses its identity. See in this connection (Saraswati Industrial Syndicate v. Commissioner of Income Tax)43, 1991(70) Company Cases 184. Consequently, a situation of identifying the transferor and paying it the purchase price equivalent to the apparent consideration by the Government, can never arise. 107. There is no provision in section 269-UE(1) and (6) of the Income Tax Act for vesting of the property in Central Government free from all liabilities and obligations. An elementary fact of the amalgamation scheme is that, along with transfer of assets, all liabilities are also transferred to the amalgamated company or the transferor company. It is difficult to take the view that the Central Government, in the event of its becoming a purchaser under Chapter XX-C, would have to meet and discharge all obligations and liabilities of the transferor company. That would be a situation which could arise if we accept the contention of the Appropriate Authority that an amalgamation is amenable to the provisions of Chapter XX-C of the Income Tax Act.108. Section 269-UE(6) of the Income Tax Act provides that when the Central Government makes an order for compulsory purchase of the rights referred to in sub-clause (ii) of Clause (d) of section 269-UA, the immovable property shall vest in the Central Government and place the Central Government in the same position in relation to such rights as the person in whom such right would continue if such an order had not been made. The consequences in the case of an amalgamation are somewhat startling. This would mean that in respect of immovable property as defined in sub-clause (ii) of Clause (d) of section 269-UA, the Central Government would step into the shoes of the transferee company. This in turn means that the Central Government is required to discharge all obligations which the transferee company would have to do. These may include obligations like issuing of shares to the shareholders of the transferor company or taking over the transferor company as a going concern including workers, their liabilities, contracts, obligations, movables and so on. For this reason also, a situation of amalgamation does not appear to be intended to be covered by Chapter XX-C of the Income Tax Act.109. Thus, a conspectus of the provisions contained in Chapter XX-C of the Income Tax Act, 1961, and the probable consequences which might result if it were to be held that the chapter applies to amalgamation schemes, are dissuasive enough not to accept the contention of the Appropriate Authority in this regard.110. The contention urged by the petitioners as well as the fifth respondent, Appropriate Authority, that a No Objection Certificate under chapter XX-C is a condition precedent to the Company Court considering the scheme for amalgamation also does not appear to be tenable for several reasons. First, whenever the Legislature wanted a sanction order to be subject to some condition precedent, the Legislature has so provided expressly. (See in this connection provisions of sections 23 and 24 of the Monopolies and Restrictive Trade Practices Act prior to the deletion of these sections from the Act by Amendment of 1991). While interpreting a statute, the Court has to consider the legislative habit. The legislative habit indicates that where the Legislature intended a sanction to an amalgamation scheme was subject to consent by another authority, it expressly provided so. There is no such provision either in Chapter XX-C or in any other provision of the Income Tax Act, 1961. This is a clear indicator of the negative intention. The sixth respondent has cited an unreported judgment of this Court (Per Tipnis, J.) dated 10th November, 1994 in Judges Summons No. 346 of 1994 in Company Application No. 118 of 1994 connected with Company Petition No. 370 of 1994 where the contention urged in opposition to an amalgamation scheme was that the Court should not consider an amalgamation scheme which was likely to result in an unlawful assignment of tenanted premises of the transferor company to the transferee company. This Court rejected the contention on the ground that whether the scheme of amalgamation in fact and in law results in an unlawful assignment, is a question which can only be determined after amalgamation before the appropriate forum in proper proceedings and does not arise for consideration by the Company Court at the stage of giving sanction to the scheme for amalgamation. (This order of the learned Single Judge was virtually affirmed since an Appeal thereagainst was summarily dismissed on 24th November, 1994 by the Division Bench of this Court). To similar effect are the observations of the Supreme Court in (General Radio & Appliances v. M.A. Khader)41, A.I.R. 1986 S.C. 649. It is, therefore, contended that, by conjuring up of consequences that may arise after amalgamation, it is not open to the Company Court, which is the forum constituted under a Special Act, namely, the Companies Act, to reject or refuse to sanction a scheme of amalgamation by reckoning of factors which are non-germane and irrelevant for consideration under the provisions of sections 391 to 394 of the Companies Act. Hence, it is contended that a No Objection Certificate by the Appropriate Authority under Chapter XX-C is not a prescribed condition precedent under section 391 of the Companies Act and, therefore, is a factor wholly irrelevant, immaterial and non-germane for consideration at the time of sanctioning of the amalgamation scheme. In these circumstances, we are of the view that the contention of the petitioner, that the Company Court was obliged to suo motu issue a notice to the Appropriate Authority and seek its No Objection Certificate under Chapter XX-C as a condition precedent to sanctioning the amalgamation scheme, has no statutory basis and cannot be accepted.111. Finally, it is urged on behalf of the sixth and the ninth respondents that, even assuming Chapter XX-C is held to apply to a transfer upon amalgamation, the transfer effected does not become void or non-est merely for non-compliance with the provisions of Chapter XX-C, or section 269-UC in particular. There is no provision in the entire Chapter XX-C providing that a transfer becomes void or non-est for non-compliance with any of the provisions contained therein. If at all the Legislature had so intended, there would have been a specific provision as contained in section 281 of the Income Tax Act. Thus, the only consequence of failure to file a declaration in Form 37-I would be a prosecution under section 276-AB and non-registration of a document by virtue of section 269-UL of the Income Tax Act.112. Even assuming that the petitioners are entitled to urge the contention that Chapter XX-C applies to the transfer of the concerned land as a consequence of the amalgamation scheme being sanctioned by the Company Court, upon careful consideration of the detailed provisions of Chapter XX-C of the Income Tax Act, we are inclined to take the view that Chapter XX-C is not intended to apply to situation of transfer of immovable property consequent upon an amalgamation scheme being sanctioned by an order of the Court. Once the scheme is sanctioned, it has the imprimatur of the Court and operates by the combined force of the statute and the Courts authority. The scheme as such ceases to be in the realm of an agreement as contemplated under Chapter XX-C of the Income Tax Act. We are, therefore, of the considered view that Chapter XX-C could not have applied to the transfer of the concerned plot at Bandra from the sixth respondent to the ninth respondent as a consequence of the scheme of amalgamation sanctioned by the Company Court by its order dated 3rd February 1993.113. The conclusions which we have arrived at on statutory interpretation, also appear backed by the following practical considerations:(a) It is significant that the Appropriate Authority has not bothered to take action under section 276AB of the Income Tax Act, 1961. Nor has it initiated any other action in connection with the aforesaid transfer for over such a long period of time. (b) We can take judicial notice that several schemes of transfer are sanctioned every day by the Company Judge and no one seems to have seriously suggested, argued or held that Chapter XX-C of the Income Tax Act, 1961 would apply to a situation of sanction of an amalgamation scheme. The authorities entrusted with the administration of the statute (i.e. the Income Tax Act) also do not appear to have interpreted the provisions of Chapter XX-C to mean what is being contended now before us. By the principle of contemporanea expositio, the practical manner in which the provisions of Chapter XX-C have been interpreted over a considerably long period need not be upset by this Court, in our judgment. (See in this connection Raymond Synthetics Ltd. and others v. Union of India and others, A.I.R. 1992 S.C. 847 and N. Suresh Nathan and another v. Union of India and others, A.I.R. 1992 S.C. 564.(c) If this Court were to accept the contention of the petitioners and interpret the provisions of Chapter XX-C in the manner suggested by the petitioners, a large number of innocent persons who have been parties to amalgamation schemes would stand exposed to criminal prosecutions under section 276AB of the Income Tax Act. The Appropriate Authority has not placed any material before us that in any past case of sanction of an amalgamation scheme, they had insisted upon filing of a declaration in Form 37-I as required by the provisions of section 269BC, nor have they placed any material to show that any such parties have been subjected to criminal prosecutions under section 276AB for failure to do so.Thus, we are of the considered view that the contention of the petitioners, which was enthusiastically echoed by the fifth respondent, Appropriate Authority, that the transfer of the concerned land from the sixth to the ninth respondent under the scheme of amalgamation would be covered by the provisions of Chapter XX-C, though novel and ingenious, must be rejected.HISTORY OF LITIGATION114. Mr. Tulzapurkar, learned Counsel for the sixth and the ninth respondents, urged that the history of the litigation spanning about twenty long years covering several writ petitions and appeals from this Court to the Supreme Court, back and forth, the final decision of the Supreme Court in S.N. Raos case (supra) and the hanging sword of Damocles of this writ petition in which the petitioners have urged contentions after contentions, taken up by amendments after amendments, even though all contentions of petitioners were rejected at all stages by all courts, indicates that there is utter lack of bona fides on the part of the petitioners who claim to be pursuing this litigation in public interest. He also urged that, pursuant to the sanctioned plans, whose validity was upheld by the Supreme Court in S.N. Raos case (supra), the sixth and the ninth respondents have acted lawfully and in full compliance with all legal requirements and the applicable buildings Rules and Regulations. Obviously, this Court did not injunct the said respondents from continuing with the construction which started in 1984, despite repeated clamour for injunction orders by the petitioners. Perhaps being possessed with premonition that this writ petition has no substance, this Court merely made an order that the sixth and the ninth respondents may continue the construction at their risk upon filing an undertaking that they would claim no equities in the matter if the construction was allowed to continue. Mr. Tulzapurkar urges that the construction is complete and has resulted in a multistory seven star hotel, which was conceived off way back when the plans were submitted for sanction and there is no reason whatsoever to interfere with its functioning. On the other hand, he urges that the history of litigation from 1974 onwards, the repeated contentions and challenges in all available fora by the petitioners, contentions urged as to the applicability of Chapter XX-C of the Income Tax Act, 1961, taken together, suggest that there may be "something more than what meets the eye" as observed by the Supreme Court in Sachidanand Pandeys case (supra).115. There appears to be quite some legitimacy to the grievance made by the learned Counsel for the sixth and the ninth respondents. It appears to us that, what may have started as a bona fide Public Interest Litigation, soon degenerated into a case of private witch-hunting. If at all the petitioners were interested in pursuing the litigation as a Public Interest Litigation, after the observations of the Supreme Court in S.N. Raos case (supra), which we have reproduced above, the matter should have been put to rest. The annoying persistence with which the petitioners have pursued this writ petition certainly gives credence to the contention of the learned Counsel for the sixth and the ninth respondents that this writ petition was intended only as a PIL meaning Persecution Interest Litigation and not PIL meaning Public Interest Litigation.116. Though, this writ petition was seriously taken up for final hearing on 30th June 1998 and the hearing continued from 1st July 1998 to 5th August 1998 and the petition was finally reserved for judgment on 6th August 1998, the judgment could not be delivered earlier on account of several overriding reasons beyond our control. At one stage, following the dicta of the Supreme Court in (Bhagwandas Fatechand Daswani & others v. II P.A. International & others)42, J.T. 2000(1) S.C. 266, we even suggested to the parties and Counsel that we may treat this matter as not part-heard and set it down for re-hearing. However, we are glad to note that the parties and their Counsel reposed full faith in our ability to remember and decide the facts and the legal issues on the basis of our detailed notes supplemented by the efficient written submissions filed by the parties. At their request, we have decided the matter ourselves, though after a span of twenty two months. While regretting the unavoidable delay in delivering our judgment, we express our gratitude to the learned Counsel on both sides who have with consumable skill rendered invaluable help in unravelling several knotty and complicated legal issues. At the end of the day, in our considered judgment, the writ petition has no merit and must fail.

Decision:
0[ds]Mr. Kalsekar, learned Counsel for the petitioners, urged that the sanctioning of the Development Plans is contrary to the provisions of the CRZ Notification dated 19th February, 1991. There are several limbs to the argument.33. The first limb urged is that the Bandra Fort, which is situated at the tip of peninsular piece of land called Bandra Lands End, is a heritage fort and would, therefore, appropriately fall withinand the Notification dated 19th February, 1991 which prescribes norms for regulation of building activities, substantially prohibits new constructions within 500 meters of High Tide Line except such of the construction activities as are listed in paragraph 2(xii). It is contended that the Bandra Lands End is an area of outstanding natural beauty/historical heritage falling withincategory. The petitioners place reliance on certain letters placed on record as Exhibits to the writ petition in support of this contention. In the letter dated 1st July, 1985 written by Shri Salim Ali, President, Bombay Natural History Society (Exhibit "D" to the Writ Petition), it is pointed out that the Bandra Lands End, where the concerned plot is situated, is a place of natural beauty and the construction of a hotel on the said plot would disturb the ecological balance and scenic beauty of the spot. Reliance is also placed on a letter dated 26th July, 1985 addressed by Dr. Rashmi Mayur, Director, Urban Development Institute (Exhibit "D2" to the Writ Petition). A letter written in the Indian Express by Dr. P.J. Deoras of the Society for Clean Environment dated 31st August, 1985 and the letter of Dr. Rashmi Mayur dated 26th July, 1985 are the letters in support of this contention. Reliance is also placed on the letter of the then Prime Minister of India, Smt. Indira Gandhi, addressed to Shri. V.P. Naik, the then Chief Minister of Maharashtra, on 15th July, 1974. On the basis of these letters, it is contended that the entire Bandra Lands End area including the concerned plot would fall withinis no doubt that the Bandra Fort as such is an area of historical/heritage value. In fact, the Bandra Fort has been declared to be such by a Notification dated 23rd April, 1984 issued under section 4(3) of the Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960 (hereinafter referred to as "MAMA Act"). This Notification describes the name of the monument as "Bandra Fort Remains and adjoining open land". There was some error in the description of the particulars contained in the Notification dated 23rd April 1984 which has now been corrected after Writ Petition No. 1403 of 1998 came to be filed by Enjay Hotels Limited and Another challenging the dimensions indicated in the Notification. An affidavit came to be filed in the said Writ Petition by the Director of Archaeology and Museums, Mumbai, who admitted that there was a patent error in the dimensions originally mentioned in the Notification in respect of the Bandra Fort area on 23rd April, 1984. The actual dimensions of the Bandra Fort were also indicated. Writ Petition No. 1403 of 1998 came to be disposed of as withdrawn when it was clearly demonstrated by the petitioners in the said Writ Petition, with reference to the facts, figures and maps, that the dimensions of the Bandra Fort and remains and open land specified in the Notification dated 23rd April, 1984 were inherently improbable and that there was an apparent error in the dimensions specified in the said Notification. In fact, the present first petitioner was the second respondent in the said Writ Petition No. 1403 of 1998 and he agreed with the contention of the petitioners in Writ Petition No. 1403 of 1998 as a result of which the first respondent, State of Maharashtra, in the said writ petition, was permitted to issue a corrigendum under section 39 of the MAMA Act to indicate the correct dimensions of the Bandra Fort and surrounding area which was declared as a protected monument under section 4(3) of the MAMA Act. The corrigendum Notification is dated 31st July, 1998 and correctly specifies the dimensions of the Bandra Fort remains and the surrounding area falling within the MAMA Act as notified under section 4(3) of the MAMA Act.Mr. Kalsekar then urged the third limb of the argument, that even if the plot fell withinwas not accepted, there could be no doubt that the concerned plot fell withind setting up of new activities and expansion of new industries is totally prohibited within the Coastal Regulation Zone under paragraph 2(i) of the Notification dated 19th February, 1991. It is contended that setting up of a five or more star hotel is an "industry" and as such would fall within the prohibition of the meaning of paragraph 2(i) of the Coastal Regulation Zone Notification dated 19th February 1991. Mr. Kalsekar placed reliance on certain judgments rendered under the provisions of the Industrial Disputes Act, 1947 holding that a hotel would be an "industry" within the meaning of section 2(j) of the Industrial Disputes Act, 1947.The Court had occasion to inspect the concerned plot, and the construction on it, during the course of which it was noticed that the construction on the concerned plot is such that a straight line drawn from the Bandra Fort to the Father Agnel Ashram, or one of the high rise buildings (all authorised constructions) would put the disputed construction on the landward side when reckoned from East side. Despite the dispute raised by the learned Counsel form the petitioners, during the site inspection we had recorded our site inspection notes dated 17th July, 1998 which forms part of the record of the case. We are, therefore, satisfied that the construction on the concerned plot falls on the landward side of a straight line drawn between two existing authorised constructions, reckoned from Eastern side. Thus, in our view, the construction carried out by the sixth and the ninth respondents on the concerned plot does not conflict with the restrictions imposed on constructions inareas and is perfectly consistent with the permitted development activity inarea. The Notification dated 9th July, 1997 provides that buildings shall be permitted only on the landward side of the existing authorised structures subject to existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ratio. The prohibition here is only on constructions on the seaward side of the existing road or existing structure. If there was any doubt as to the manner in which the construction had to be carried out, even on the landward side, this is clarified by a subsequent notification which provides that construction shall be permitted on the landward side of an imaginary line between the two authorised constructions drawn parallel to the High Tide Line. Looked at this way also, we find that the construction does not contravene thee is no material on record to show that the hotel constructed by the sixth and the ninth respondents discharges untreated wastes and effluents into the sea. As to the grievance against the Bombay Municipal Corporation Sewerage Purification Plant, the grievance has no substance since the Bombay Municipal Corporation Sewerage Purification Plant is intended to treat city wastes and effluents and render them innocuous before being discharged into the sea. Hence, we see no violation of(v) of Clause 2 of 1991 CRZ Notification.s (viii) and (xii) of Clause 2 of the said notification are intended to permit land reclamation for limited purposes and to permit construction activity between Low Tide Line and High Tide Line for carrying of treated effluents and wastes water discharges into the sea. In our view, the Bombay Municipal Corporation Sewerage Purification Plant and the proposed pipeline fall within the activity permitted by these clauses. In fact, by the Notification dated 9th July, 1997,(viii) has been completely substituted and the activity of construction of the Bombay Municipal Corporation Sewerage Purification Plant is wholly permitted thereunder.The petitioners contend that the construction of the hotel on the concerned plot contravences the ULCA exemption order dated 25th July, 1978 as it contravenes the conditions of user of the land and the restrictions and conditions imposed in the said order. One of the conditions of the order dated 25th July, 1978 made under section 20 of ULCA granting exemption specifically stipulated was that "no transfer by way of sale mortgage, gift, lease or otherwise" shall be made of the exempted land and that in case of violation of this condition, the exemption order was liable to be revoked. There was also a condition that the sixth respondent was to give an area of 7000 square yards free of cost to the Bombay Municipal Corporation for being maintained as a public park. The petitioners contend that the building of the hotel on the concerned plot violates both these conditions.In our view, this contention is no longer Res Integra for the petitioners to urge in the present writ petition. This contention, in terms, was argued and rejected by the Division Bench of this Court in Review Petition No. 8 of 1985 (Per Konda Madhava Reddy, C.J. and S.M. Daud, J.). The Division Bench rejected the contention by saying, "that some encroachments have been made thereon and some buildings have been constructed by others does not in any way militate against that land still being reserved under Approved Plan for development into a garden". This judgment of this Court was specifically challenged before the Supreme Court in S.N. Raos case (supra) and the challenge was rejected by the Supreme Court.It is also not possible to say that the State Government was not alive to the fact of the existence of hutments on portions of Revenue Survey No. 6 which was shown as reserved for garden. In fact, the record suggests that the State Government seriously considered the Bombay Municipal Corporations suggestion regarding deletion of reservation for garden from other plots bearing CTS Nos. 919 to 924, but accepted the suggestion of the Bombay Municipal Corporation with regard to CTS No. 922. In other words, the State Government maintained the reservation for garden in respect of all other areas even after due consideration of the fact that there were hutments on the said plot of land. We are, therefore, satisfied that the sanction granted by the State Government to the development plan was not vitiated on account ofof mind as contended. The contention must, therefore, fail for that reason also.There is overwhelming authority of precedents suggesting that when an amalgamation takes place, the transfer of assets takes place by the force of the Company Courts order and/or by operation of law; it ceases to be a contractual or a consensual transfer. The contention, therefore, is that Chapteris not attracted to such a transfer by operation of law. This contention has substance and needs to be upheld.It is alternatively contended by the Counsel for the sixth and the ninth respondents that sectionis not intended to apply to all types of transfers, but only to some particular types of transfers as there is no reference therein to a transfer consequent upon an amalgamation scheme. Hence, it is contended that a transfer consequent upon amalgamation falls outside the sweep of sectionIn order to drive home this point, the learned Counsel drew our attention to section 2(1B) of the Income Tax Act, 1961 which defines the expression "amalgamation". Sections 45 and 47 of the Income Tax Act which deal with capital gains arising upon a transfer of a capital asset, expressly exclude a situation of amalgamation for the purposes of capital gains. Similarly, section 45 of the Gift Tax Act, 1958 provides that no gift tax will be leviable in a situation of amalgamation. The term "amalgamation" under the provisions of Gifts Tax Act has the same meaning as in section 2(1B) of the Income Tax Act. It is, therefore, contended that, in an amalgamation, there is neither any sale, nor any exchange of any immovable property, nor any lease thereof. See in this connection (Commissioner of Income Tax v. Rasiklal Manecklal HUF)31, A.I.R. 1989 S.C. 1333.98. It is true that in a case of amalgamation there is a share exchange ratio prescribed according to which the shareholders of the transferor company would be entitled to the shares of the transferee company. This, however, does not make it a situation of exchange of immovable property, or relinquishment of any right to immovable property so as to make the transaction amenable to sectionof the Income Tax Act. There is neither sale nor purchase in a case of amalgamation. Section 54 of the Transfer of Property Act defines "sale" as a transfer of ownership in exchange for a price, "price" being defined in section 2(10) of the Sale of Goods Act as any consideration paid for sale of the goods. In (CIT v. Motors and General Stores Pvt. Ltd.)32, 66 ITR 692  , it was pointed out by the Supreme Court that the presence of money consideration is an essential element of a transaction of sale. Tested by this yardstick, it would appear that in an amalgamation no consideration in any formmuch less in the form of moneyflows from the transferee company to the transferor company, which was the erstwhile owner of the assets. The shares are issued by the transferee company, not to the transferor company, but to the shareholders of the transferee company, who must necessarily be treated as distinct from the transferor company itself. The shareholders of the transferor company could not be deemed in law to be the owners of the assets of the transferee company, nor can they be said to have held any interest in the assets of the transferee company. See in this connection (Bacha Guzdar v. Commissioner of Income Tax)33, A.I.R. 1955 S.C. 74. Right from the time of Solomons case, a company has always been treated as a separate and distinct juristic person with a personality of its own different from that of its shareholders. No shareholder can legitimately claim to have an interest in any of the properties or assets held by the company. The judgment of the Supreme Court in (AccountantSecretarial Services Pvt. Ltd. v. Union of India)34, A.I.R. 1988 S.C. 1708, was pressed into service to contend that a bank constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, though materially controlled by the Central Government, has a distinct personality of its own and its property cannot be said to be the property of the Union of India. Hence, it is contended that by the act of amalgamation, there was no sale of any assets by the transferor company (sixth respondent) to the transferee company (ninth respondent) in the amalgamation. Thus, it is urged that there being no sale or exchange or lease of immovable property in the case of amalgamation, the transfer of the assets of the sixth respondent to the ninth respondent does not fall within the ambit of Chapterof the Income Tax Act, 1961.The conclusions which we have arrived at on statutory interpretation, also appear backed by the following practical considerations:(a) It is significant that the Appropriate Authority has not bothered to take action under section 276ABof the Income Tax Act, 1961.Nor has it initiated any other action in connection with the aforesaid transfer for over such a long period ofWe can take judicial notice that several schemes of transfer are sanctioned every day by the Company Judge and no one seems to have seriously suggested, argued or held that Chapterof the Income Tax Act, 1961 would apply to a situation of sanction of an amalgamation scheme. The authorities entrusted with the administration of the statute (i.e. the Income Tax Act) also do not appear to have interpreted the provisions of Chapterto mean what is being contended now before us. By the principle of contemporanea expositio, the practical manner in which the provisions of Chapterhave been interpreted over a considerably long period need not be upset by this Court, in our judgment. (See in this connection Raymond Synthetics Ltd. and others v. Union of India and others, A.I.R. 1992 S.C. 847 and N. Suresh Nathan and another v. Union of India and others, A.I.R. 1992 S.C. 564.(c) If this Court were to accept the contention of the petitioners and interpret the provisions of Chapterin the manner suggested by the petitioners, a large number of innocent persons who have been parties to amalgamation schemes would stand exposed to criminal prosecutions under section 276AB of the Income Tax Act. The Appropriate Authority has not placed any material before us that in any past case of sanction of an amalgamation scheme, they had insisted upon filing of a declaration in Formas required by the provisions of section 269BC, nor have they placed any material to show that any such parties have been subjected to criminal prosecutions under section 276AB for failure to do so.Thus, we are of the considered view that the contention of the petitioners, which was enthusiastically echoed by the fifth respondent, Appropriate Authority, that the transfer of the concerned land from the sixth to the ninth respondent under the scheme of amalgamation would be covered by the provisions of Chapterthough novel and ingenious, must be rejected.There appears to be quite some legitimacy to the grievance made by the learned Counsel for the sixth and the ninth respondents. It appears to us that, what may have started as a bona fide Public Interest Litigation, soon degenerated into a case of privateIf at all the petitioners were interested in pursuing the litigation as a Public Interest Litigation, after the observations of the Supreme Court in S.N. Raos case (supra), which we have reproduced above, the matter should have been put to rest. The annoying persistence with which the petitioners have pursued this writ petition certainly gives credence to the contention of the learned Counsel for the sixth and the ninth respondents that this writ petition was intended only as a PIL meaning Persecution Interest Litigation and not PIL meaning Public Interest Litigation.116. Though, this writ petition was seriously taken up for final hearing on 30th June 1998 and the hearing continued from 1st July 1998 to 5th August 1998 and the petition was finally reserved for judgment on 6th August 1998, the judgment could not be delivered earlier on account of several overriding reasons beyond our control. At one stage, following the dicta of the Supreme Court in (Bhagwandas Fatechand Daswaniothers v. II P.A. Internationalothers)42, J.T. 2000(1) S.C. 266, we even suggested to the parties and Counsel that we may treat this matter as notand set it down forHowever, we are glad to note that the parties and their Counsel reposed full faith in our ability to remember and decide the facts and the legal issues on the basis of our detailed notes supplemented by the efficient written submissions filed by the parties. At their request, we have decided the matter ourselves, though after a span of twenty two months. While regretting the unavoidable delay in delivering our judgment, we express our gratitude to the learned Counsel on both sides who have with consumable skill rendered invaluable help in unravelling several knotty and complicated legal issues. At the end of the day, in our considered judgment, the writ petition has no merit and must fail.