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

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 tobuildings. 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 runsalmost 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 forward of Mumbai.5. The first sanctioned Development Plan of Greater Bombayward) 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. Theportion 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 (CeilingRegulation) 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 (Exhibitstating 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 tost proposed 120 ft. wide development plan roads land is divided in 3 parts viz. Block A, Block B on south towards west ofD.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 feetDevelopment 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 feetDevelopment 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 conditions15% 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 plotsone 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 forward 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 forward showing the concerned plot in the residential zone. Taking stock of all developmentsthe 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 ahotel thereupon.19. This writ petition was filed on 21st October, 1992, but despite applications made on behalf of the petitioners ,neither anyrelief 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 ahotel 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 Chapterof the Income Tax Act, 1961, in aPublic 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.

Reasoning:
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.