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[Cites 8, Cited by 0]

Gujarat High Court

Siemens Limited vs Collector on 4 December, 2018

Author: C.L. Soni

Bench: C.L. Soni

       C/SCA/8235/2018                                CAV ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 8235 of 2018

================================================================

SIEMENS LIMITED Versus COLLECTOR ================================================================ Appearance:

MR.YATIN OZA, SENIOR ADVOCATE with MR. MN MARFATIA(6930) for the PETITIONER(s) No. 1 MS.NISHA THAKORE, ASST.GOVERNMENT PLEADER/PP(99) for the RESPONDENT(s) No. 3 NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2 ================================================================ CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 04/12/2018 CAV ORDER
1. The petition is filed under Article 226 of the Constitution, with following main prayers made in paragraph no.67(A) and (B) thereof as under:­ "A. That this Hon'ble Court be pleased to grant a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Direction or Order, calling for the records and proceedings in the matter as also the Impugned Orders dated 25th March 2008 and 20th April, 2018 and after considering the legality and validity thereof, to quash and /or set aside the same.

B. Without prejudice to prayer (a) aforesaid and in the alternative, that this Hon'ble Court be pleased to grant a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate Writ, Direction or Order, calling for the records and proceedings in the matter as also the Impugned Orders dated 25th March 2008 and 20 April, 2018 and after considering the legality and validity thereof, to quash and /or set aside the same."

Page 1 of 24

C/SCA/8235/2018 CAV ORDER

2. As stated in the petition, as also in the impugned orders, the Collector, Vadodara made order dated 09.04.1975 for sale of the land admeasuring 15 acres (60,703 sq. mts.) from the land bearing survey no.589 situated at Sayajipura, Tal­Dist:Vadodara to Miles India Project ­ limited company on new and impartible tenure on different conditions for industrial purpose. It is the case of the petitioner that after the land was sold to the Miles India Limited, it was granted Non­agriculture permission in 1975 and it got plan sanctioned and as per sanctioned plan, the construction was put up on the land, however, in 1976 since Urban Land Ceiling Act, 1976 (the ULC Act) came into force, it applied for exemption under Section 20 of the ULC Act for the open land, and the process in connection with such application went on with the Industrial Commissioner and with the State Government and in the year 1986, the Industrial Commissioner granted exemption under Section 20 of the ULC Act only for 14,834 sq.mts of land. However, before that the Collector issued show cause notice dated 16.04.1984 to the Miles India Limited to show cause as to why the land should not be forfeited to Government for breach of condition nos.2 and 5. The Collector after hearing the Miles India Limited and considering its reply passed order dated 22.11.1985 forfeiting 11 acres of land (43,715 sq.mts) from 15 acres (60703 sq.mts) to vest with the State Government by recording finding that such 11 acres of land was not used for industrial purpose and was kept open. Being aggrieved by the order of the Industrial Commissioner in not granting exemption for entire land, Special Civil Application no.6058 of 1986 was filed before this Court and this Court vide its order dated 01.02.1986 remanded the matter to Industrial Commissioner for fresh decision, but before fresh decision could be taken, the ULC Act came to be repealed. However, as regards the Page 2 of 24 C/SCA/8235/2018 CAV ORDER order made by the Collector for forfeiting the land to State Government for breach of condition no.2 and 5, the petitioner filed Appeal before the Secretary, Revenue Department and the Secretary, after treating the Appeal as Revision Application remanded the matter to the Collector to inquire whether the construction put up was according to plan and to what extent the Company required the land and to take action for resumption of remaining land to the Government. Against such order of Secretary, Miles India Limited filed Special Civil Application no.4646 of 1986 before this Court which was initially disposed of with a liberty to revive the petition. It was thereafter revived and decided and disposed of by order dated 24.10.2005 whereby the remand order passed by the Secretary was upheld with some directions. It was thereafter, the Collector issued notice dated 08.09.2006 for fresh decision in the matter and by his order dated 25.03.2008, the Collector held that the Miles India Limited (which then changed its name to Buyers Diagnostic Limited) violated conditions no.2,8,12 and 13 of the grant and was liable to be proceeded under Section 79/A of the Land Revenue Code. Against such order of the Collector, the company named Siemens Medical Solution Diagnostic Limited filed Revision Application no.6 of 2008 before the Secretary, Revenue Department. Such Revision Application was heard and decided by the Joint Secretary, Revenue Department. The Joint Secretary rejected the Revision Application by order dated 20.04.2018. The petition is filed to challenge both the above orders.

3. Learned senior advocate Mr.Yatin Oza appearing with learned advocate Mr.M.N.Marfatia for the petitioner submitted that the land was sold to Miles India Limited by taking market value after examining the need for the land for industrial project. He Page 3 of 24 C/SCA/8235/2018 CAV ORDER submitted that after obtaining Non­agriculture permission, the plan for construction was got sanctioned and the construction for initial stage of project was put up and it is nobody`s case that the project was never launched. He submitted that it was because the proceedings under ULC Act were going on, the use of the entire land for industrial project was not possible till the ULC Act was repealed in 1999. He submitted that since the proceedings for breach of conditions of grant simultaneously went on and continued till 2018, it was impossible to expand the industrial project, and therefore it could not be said that the petitioner had deliberately not used the open land or had no intention to use open land for industrial purpose. He submitted that show cause notice was not specific and the impugned orders even traveled beyond the show cause notice. Mr.Oza submitted that the Collector and the Secretary committed serious error in considering the change in name of the original company as transfer to another Company to hold that the original Company committed breach of condition no.12 of the grant. Mr.Oza submitted that later on under the scheme of amalgamation approved by Bombay High Court, the original company came to be merged and amalgamated with Siemens Limited but its identity is not lost and it could not be said that the land granted to the original Company was transferred to any other company or a foreign company. Mr.Oza submitted that for expansion of industrial project, the petitioner requires entire land which was granted in the year 1975, as under the prevalent rules for making construction for industrial project, 50% of the land is required to be kept open. Mr.Oza submitted that the expansion of industrial project of the petitioner has been planed since long but it could not be implemented on account of the proceedings continued till the impugned orders were made. He submitted that it is not correct to say that the petitioner has used Page 4 of 24 C/SCA/8235/2018 CAV ORDER the open land only for growing grass and to deal in business of grass. Mr.Oza submitted that since development on land for expansion of industrial project could not take place, the land remained open and grass used to grow naturally and for such natural growing of the grass on the open land could not be considered as use of the land for the purpose other than the industrial purpose. Mr.Oza submitted that since the petitioner has not committed breach of any of the conditions of the grant of the land and since the petitioner intents to expand its industrial project without any delay and within shortest possible time limit and for such expansion of industrial project, there is a need for the entire land to comply with the prevalent rules for making construction for industrial project, the impugned orders be quashed and set aside in exercise of powers under Art.226 of the Constitution.

4. Learned AGP Ms.Nisha Thakore, submitted that since the Collector took fresh decision as per the order of remand, it could not be said that the Collector traveled beyond the show cause notice. She submitted that the original Company is not before the Court. She submitted that the change in the name of original Company to which the land was granted was never disclosed before the Collector. She submitted that the amalgamation of the original Company with the Siemens Limited with transfer of its undertaking amounted to transfer of the land to altogether new company without permission of the Collector and the Government which was in clear violation of condition no.12 of the conditions of grant. She submitted that 15 acres of land was granted to original Company from the gauchar land to use it for industrial purpose, however, as found by the Collector and the Secretary, the land has not been put to use, except small portion, for industrial purpose. She submitted Page 5 of 24 C/SCA/8235/2018 CAV ORDER that the land has been used for growing grass and doing business in grass. She submitted that the petitioner failed to show that even the small construction put up on part of the land was after getting development permission. She submitted that the petitioner has failed to show any genuine reason for non utilization of land for industrial purpose but it has mainly harped upon the proceedings taken under the ULC Act. She submitted that the land was given before the ULC came into force and there was no reason not to put up the construction to the fullest extent to use the land for industrial purpose. She submitted that there was no hurdle for development on the land for which industrial commissioner had granted exemption, but no steps were taken for expansion of industrial project as the petitioner was just interested to retain large open land with no intention to use it for industrial purpose. Ms.Thakore submitted that except the unauthorized construction on small portion of the land, the petitioner has not used the land for industrial purpose, but transferred it to another Company without prior permission of the Collector and the State government and therefor, the Collector and the Secretory have committed no error in ordering to resume the land to the state government. She submitted that the authorities below having concurrently found that the petitioner committed breach of conditions of grant of land, the Court may not interfere with the impugned orders in exercise of powers 226 and 227 of the Constitution. She submitted that even otherwise, the petitioner, which claims to be the Siemens Limited, is not entitled to challenge the impugned orders as it was neither the grantee of the land nor was the party in the proceedings before the authorities below.

5. The Court having heard learned advocates finds that the order dated 09.04.1975 was, in fact, for grant of the land, as it Page 6 of 24 C/SCA/8235/2018 CAV ORDER imposed various conditions, which the Miles India Limited (henceforth to be referred as original Company) accepted, including the condition for forfeiture of the land to Government as consequences for breach of any of the conditions. The conditions need to be referred at this stage are conditions no.2,5,8,12, 13,14 and 17.The condition no.2 stipulates that the land is sold for industrial purpose and therefore, it shall not be used for any purpose other than for industrial purpose. The condition no.5 stipulates that for development and construction on the land, plan from the Collector shall be required to be sanctioned and no change thereafter shall be made therein without prior permission of the Collector. The condition no.8 stipulates that the land shall not be sub­divided and shall not be transferred either to foreign Company or to any person without prior permission of the Government. The condition no.12 stipulates that since the land is given on new and impartible tenure, the land shall not be sold, given in gift, or mortgaged or in any manner transfered without prior permission of the Collector. The condition no.13 stipulates that if in future, the Collector grants permission to transfer, sale, gift or mortgage the land, than in such event, 50% of the additional sale price shall be required to be paid to the Government. The condition no.14 stipulates that if it comes to the notice of the Government that the sale price was wrongly stated or that the real sale price is suppressed than the sale or the transfer of the land shall be declared illegal and the land shall be vested with the Government with constructions thereon. The condition no.17 provides that if there is breach of any of the conditions, the land shall be forfeited to vest with the Government with constructions thereon without any payment of compensation.

6. Earlier when the Collector made order dated 22.22.1985 for Page 7 of 24 C/SCA/8235/2018 CAV ORDER resumption of 11 acres of land, the Secretary set aside such order in Revision Application no.587 of 1985 filed by the original Company and remanded the matter to the Collector for fresh decision. The original Company challenged the order of remand made by the Secretary by filing above Special Civil Application no.4646 of 1986 which was disposed of by order dated 24.10.2005 with following observations and directions contained in paragraph no.7 thereof:

"7. It is required to be noted that in the present special civil application, the petitioner has challenged the order passed by the Collector, Vadodara as well as the Secretary (Appeals), Revenue Department, State of Gujarat. So far as the order passed by the Collector, Vadodara resuming the land in question is concerned, the same is already quashed and set aside by the Secretary (Appeals), Revenue Department, State of Gujarat while passing the order in the revision application No.587 of 1985 while remanding the matter to the Collector, Vadodara and therefore, the said relief cannot be granted. So far as the challenge to the judgment and order passed by the Secretary (Appeals) passed in Revision Application No.SRD­587 of 1985 is concerned, it is required to be noted that by the said judgment and order the Secretary (Appeals) has as such remanded the matter to the Collector, Vadodara for deciding the matter afresh and to hold necessary inquiry as to whether there were genuine reasons for not utilising the entire land in question by the petitioner and as to whether the construction is according to the plans, as to whether the said land is really necessary for the petitioner company and how much land is required for the petitioner company for its expansion and submissions which have been made by the petitioner in the present special civil application and also at the time of hearing of present special civil application can be made by the petitioner company before the Collector, Vadodara while taking any appropriate decision by the Collector, Vadodara on remand. In my opinion, no prejudice is caused to the petitioner company while remanding the matter. On the contrary, the Secretary (Appeals) is justified in remanding the matter and the entire question will be Page 8 of 24 C/SCA/8235/2018 CAV ORDER at large open before the Collector, Vadodara. Under the circumstances, there is no substance in the present special civil application. However, it is made clear that on remand the Collector, Vadodara to consider the observations made by the Secretary (Appeals), Revenue Department, State of Gujarat made in Revision Application No.587 of 1985 it its true later and spirit and shall take a decision after giving full hearing to the petitioner and shall decide as to whether the reasons for not putting up construction in the entire land in question were genuine or not and shall also consider the requirements of the petitioner company and as to how much land is required for the purpose of expansion by the petitioner company while considering the question with regard to resuming the land and as such, all the contentions are kept open."

7. The above order dated 24.10.2005 passed in Special Civil Application no.4646 of 1986 passed by this Court was not further challenged by the petitioner. By the order passed in Revision Application no.87 of 1985, the Secretary had directed the Collector to verify whether plan for construction on the land was sanctioned and if it was found that there was genuine reasons for not making constructions, then after ascertaining the need of the land by the original Company and taking undertaking from the company to make construction within the reasonable time limit, to resume the remaining land to the State Government. While not interfering with such order of the Secretary, this Court directed the Collector to decide by considering the observations of the Secretary in its true letters and spirit as to whether the reasons for not putting up construction on the entire land were genuine or not and to consider the requirement of the land by the original Company­ the petitioner in the above petition as to how much land was required for the purpose of expansion of industrial project while considering the question with regard to the resumption of the land; and all contentions were kept open.

Page 9 of 24

C/SCA/8235/2018 CAV ORDER

8. It was pursuant to the above order of this court, the Collector took fresh decision which is confirmed by the Secretary in Revision Application no.6 of 2008 filed by the Siemens Medical Solutions Diagnostic Limited. Therefore, when it was in context of above order of remand, the fresh decision was taken, the contention that the impugned orders traveled beyond the show cause notice is not available to the petitioner.

9. The Collector in his impugned order has recorded that plan was sanctioned through Deputy Town Planner on 05.02.1990 and construction of 1310 sq.mts was made on the land, however, no development permission from the Town Planning Department was produced and the existing construction was shown as of 1845 sq.mts and thus, it clearly comes down that for industrial purpose full use of the land has not been made by the company. The Collector has also recorded that no explanation is given by the company for not doing any additional work from 1975 to 1997 and for proposed expansion no planning has been made for additional construction. The Secretary has concurred with the conclusion reached by the Collector.

10. Learned senior advocate Mr.Oza however, submitted that the Collector and the Secretary have failed to consider that all through out right from the date the proceedings were taken under the ULC Act till the ULC Act came to be repealed with the proceedings for breach of condition continued and now culminated in the impugned orders, and uncertainty prevailed as to what extent the petitioner company could use the land and in such situation of uncertainty, the petitioner company could not implement its planning for expansion of its industrial project, for which the Page 10 of 24 C/SCA/8235/2018 CAV ORDER petitioner could not be found with fault or could not be said to have deliberately or intentionally not used the entire land for industrial purpose.

11. The Court however finds that the original Company had never come forward with any planning or presented its need for expansion of its industrial project. The pendency of above referred proceedings could not be the hurdle for the original Company to specify its need for use of the land for expansion of industrial project and large portion of land was kept open for no good reason.

12. The Collector in his order has recorded that in place of original Company, one Buyer Diagnostic India Limited appeared pursuant to the show cause notice and there was no disclosure made as regards change of name of original company till the proceedings in the first round of the concluded. The Collector has recorded that the Buyer Diagnostic Company is part of Buyers Group which is foreign company. However, learned senior advocate Mr.Oza drew attention of the Court to the communication dated 14.06.1995 addressed by Assistant Registrar of the Companies, Gujarat to the original Company stating that he approved the writing under Section 21 of the Companies Act,1956 read with Government of India, Ministry of Law, Justice and Company Affairs notification dated 24.06.1985 for the change of name from Miles India Limited to Buyers Diagnostic Limited; to certificates issued by the Assistant Registrar of the Companies certifying the change of the name of company further to Siemens Medical Solutions Diagnostic Limited and then to Siemens Health Care Diagnostic Limited.

13. At this stage, the following facts which are brought on record by the petitioner need to be stated:

Page 11 of 24

C/SCA/8235/2018 CAV ORDER As stated in the petition, on June, 14th 1985, the name of Miles India Limited was changed to Buyers Diagnostic Limited, then on August 2nd 2007 from Buyers Diagnostic Limited to Siemens Medical Solutions Diagnostic Limited and then to Siemens Health Care Diagnostic Limited.

It appears that the petition was originally filed in the name of Siemens Limited however, before moving the petition for hearing, correction was made in the name of the petitioner so as to read 'Siemens Medical Solution Diagnostic Limited', thus the petition is filed in the name of Siemens Medical Solution Diagnostic Limited.

At the end of hearing of the petition, learned advocate for the petitioner submitted two clarifications in the form of affidavits dated 01.11.2018, one is titled as 'Clarification for Siemens Limited

- India Company' and the second is titled as 'Clarification for name of the petitioner'.

Paragraph nos.6 to 12 of the affidavit titled as `Clarification for name of the petitioner` read as under:

"6) On 6th August, 2008, SMSDL changed its name to Siemens Healthcare Diagnostics Limited ("SHDL"). The certificate for change of name is annexed in the Compilation of Documents at Page Number 71.
7) SHDL merged with Siemens Limited pursuant to the order dated 28th January, 2011 of the Hon'ble Bombay High Court and the order dated 1st March, 2011 passed by this Hon'ble Court's sanctioning the scheme of arrangement in the nature of amalgamation.

The said orders dated 28th January, 2011 and 1st March, 2011 are annexed in the Compilation of Documents at Page Numbers 78 - 104 and 105 - 125, respectively.



       8)    On 23rd February, 2012, Siemens Limited filed a


                              Page 12 of 24
 C/SCA/8235/2018                                 CAV ORDER

miscellaneous application in the Revision Application for amendment in the name of the Petitioner pursuant to change of name SMSDL to SHDL on 6th August, 2008 and subsequent merger of SHDL with Siemens Limited on 1st March, 2011. Annexed hereto and marked as Annexure A is a copy of the said miscellaneous application without the annexures.

9) In or around November/December, 2016, the office of the Government of Gujarat, Revenue Department informed the Petitioner that the said miscellaneous application in the Revision Application had been misplaced/lost by them and instructed the Petitioner to file another miscellaneous application seeking the amendment in the name of the Petitioner.

10) On 4th January, 2017, Siemens Limited, once again, filed a fresh miscellaneous application in the Revision Application for amendment in the name of the Petitioner pursuant to change of name SMSDL to SHDL on 6th August, 2008 and subsequent merger of SHDL with Siemens Limited on 1st March, 2011. Annexed hereto and marked as Annexure B is a copy of the said miscellaneous application without the annexures.

11) On 20th April, 2018, the Government of Gujarat, Revenue Department vide his order upheld the order dated 25th March, 2008 passed by the Collector of Vadodara. The said order was passed in the name of SMSDL instead of Siemens Limited.

12) On 14th May, 2018, the Petitioner filed the present special civil application in the name of Siemens Limited. The Registry of this Hon'ble Court refused to allow the circulation of the special civil application in the name of Siemens Limited as the impugned order dated 20th April, 2018 was passed in the name of Siemens Medical Solutions Diagnostics Limited and the name in the cause title of the special civil application must match with the name in the impugned order due to which the Petitioner inserted the said "Medical Page 13 of 24 C/SCA/8235/2018 CAV ORDER Solutions Diagnostics Limited" in the cause title of the present special civil application."

In another clarificatory affidavit, it is stated that on 02.03.1957, Siemens Engineering and Manufacturing Company of India was incorporated under the Companies Act, 1956. On 23.10.1967 its name was changed to Siemens India Limited then on 31.03.1987 Siemens India Limited changed its name to Siemens Limited. It is stated that Siemens Limited is incorporated in India and it does not fall under the definition of foreign company as defined in Companies Act.

With above two Clarifications, one draft amendment was also tendered seeking leave of the Court to change the name of the company in the cause title of the petition as under:

"Siemens Limited, a company Incorporated under the provisions of the Companies Act, 1956, having its registered office at Birla Aurora, Level 21, Plot No.1080, Dr.Annie Besant Road, Worli, Mumbai­400030 and its factory at Sayajipura, Ajwa Road, Vadodara­ 390 006"

14. Thus, above clarifications with draft amendment are filed with the purpose of treating the petition as filed by 'Siemens Limited' on the factual premise that the Siemens Health Care Diagnostic Limited merged/ amalgamated with Siemens Limited as per scheme of arrangement in the nature of amalgamation sanctioned by the Bombay High Court.

15. Therefore, even if it is accepted that the original Company got its name changed and approved to new names, it ultimately merged/amalgamated with the Company named 'Siemens Limited' Page 14 of 24 C/SCA/8235/2018 CAV ORDER and the effect of such merger/amalgamation needs to be considered. The copy of scheme of amalgamation of Siemens Health Care Diagnostic Limited with Siemens Limited is placed on record. Clause nos.2.12 and 4.1 of the scheme read as under:

"Clause no.2.12: "Undertaking of the Transferor Companies" shall mean the entire business and the whole of the undertakings of the Transferor Companies as a going concern, all its assets, rights licenses and powers, and all its debts, outstandings, liabilities, duties and obligations as on the Effective Date including, but not in any way limited to, the following:
A. All the assets and properties (whether movable or immovable, tangible or intangible, real or personal, corporeal or incorporeal, present, future or contingent) of the Transferor Companies, including, without being limited to, plant and machinery, equipment, buildings and structures, offices, residential and other premises, capital work in progress, sundry debtors, furniture, fixtures, office equipment, appliances, accessories, power lines, ,depots, deposits, all stocks, stocks of fuel, assets, investments of all kinds (including shares, scrips, stocks, bonds, debenture stocks, units or pass through certificates), cash balances or deposits with banks, loans, advances, contingent rights or benefits, book debts, receivables, actionable claims, earnest moneys, advances or deposits paid by the Transferor Companies, financial assets, leases (including lease rights), hire purchase contracts and assets, lending contracts, rights and benefits under any agreement, benefit of any security arrangements or under any guarantees, reversions, powers, municipal permissions, tenancies in relation to the office and/or residential properties for the employees or other persons, guest houses, godowns, warehouses, licenses, fixed and other assets, trade and service names and marks, patents, copyrights, and other intellectual property rights of any nature whatsoever, rights to use and avail of telephones, telexes, facsimile, email, internet, leased line connections and installations, utilities, electricity and other services, reserves, provisions, funds, benefits of assets or properties or other interest held in trust, registrations, contracts, engagements, arrangements of Page 15 of 24 C/SCA/8235/2018 CAV ORDER all kind, privileges and all other rights including sales tax deferrals, title, interests, other benefits (including tax benefits),easements, privileges, liberties and advantages of whatsoever nature and wheresoever situate belonging to or in the ownership, power or possession and in the control of or vested in or granted in favour of or enjoyed by the Transferor Companies or in connection with or relating to the Transferor Companies and all other interests of whatsoever nature belonging to or in the ownership, power, possession or the control of or vested in or granted in favour of or held for the benefit of or enjoyed by the Transferor Companies, whether in India or abroad.
B. All agreements, rights, contracts, entitlements, licenses, permits, permissions, incentives, approvals, registrations, tax deferrals and benefits, subsidies, concessions, grants, rights, claims, leases, tenancy rights, liberties, special status and other benefits or privileges and claims as to any patents, trade marks, designs, quota rights, engagements, arrangements, authorities, allotments, security arrangements (to the extent provided herein), benefits of any guarantees, reversions, powers and all other approvals of every kind, nature and description whatsoever relating to the Transferor Companies' business activities and operations.
C. Entitlements, including tenancy rights, held by the Transferor Companies or which may accrue or become due to it as on the Appointed Date or may become so due or entitled to thereafter.
D. All intellectual property rights, records, files, papers, computer programmes, manuals, data, catalogues, sales material, lists of customers and suppliers, other customer information and all other records and documents relating to the Transferor Companies' business activities and operations.
E. Amounts claimed by the Transferor Companies whether or not so recorded in the books of account of the Transferor Companies from any Governmental Authority, under any law, act or rule in force, as refund Page 16 of 24 C/SCA/8235/2018 CAV ORDER of any tax, duty, cess or of any excess payment.
F. Right to any claim not preferred or made by the Transferor Companies in respect of any refund of tax, duty, cess or other charge, including any erroneous or excess payment thereof made by the Transferor Companies and any interest thereon, with regard to any law, act or rule or Scheme made by the Governmental Authority, and in respect of set­off, carry forward of un­absorbed losses, deferred revenue expenditure, deduction, exemption, rebate, allowance, amortization benefit, deferment of sales tax, etc. under the Income­tax Act, 1961, and the Cenvat / Modvat credit balances under the Central Excise Act, 1944, or any other or like benefits under the said acts or under and in accordance with any law or act.
G. All debts (secured and unsecured), liabilities including contingent liabilities, duties, leases of the Transferor Companies and all other obligations of whatsoever kind, nature and description whatsoever and howsoever arising, raised or incurred or utilised. Provided that, any reference in the security documents or arrangements entered into by the Transferor Companies and under which, the assets of the Transferor Companies stand offered as a security, for any financial assistance or obligation, the said reference shall be construed as a reference to the assets pertaining to that Undertaking of the Transferor Companies only as are vested in the Transferee Company by virtue of the Scheme and the Scheme shall not operate to enlarge the security for any loan, deposit or facility created by the Transferor Companies which shall vest in the Transferee Company by virtue of the amalgamation and the Transferee Company shall not be obliged to create any further or additional security therefor after the amalgamation has become effective.
H. All other obligations of whatsoever kind, including liabilities in respect of the employees of the Transferor Companies with regard to the payment of gratuity, pension benefits and the provident fund or compensation, if any, in the event of voluntary retirement or retrenchment.
Page 17 of 24
C/SCA/8235/2018 CAV ORDER Clause no.4.1: Transfer of Assets Upon the coming into effect of this Scheme and with effect from the Appointed Date, the Undertaking of the Transferor Companies as defined herein, save as provided in sub­clauses (a) and (b) below, shall, under the provisions of Sections 391 to 394 of the Act, and pursuant to the orders of the High Court, without any further act or deed or matter or thing to be made, done or executed but subject to the changes affecting the same as on the Effective Date, shall stand transferred to and vested in the Transferee Company as a going concern so as to become the undertaking and property of the Transferee Company from the Appointed Date. Provided that the movable assets of the Transferor Companies shall vest in the Transferee Company in the manner laid down hereunder:
(a) All the movable assets of the Transferor Companies, including plant and machinery, furniture and fixtures, cash on hand, etc., shall be physically handed over by manual delivery to the Transferee Company to the end and intent that the title and property therein shall pass to the Transferee Company on such delivery alongwith other assets & liabilities.
(b) In respect of movable assets other than those specified in subclause (i) above, including sundry debtors, outstanding loans, recoverable in cash or in kind or value to be received, bank balances and deposits with Government, bodies, customers etc., the following modus operandi shall be followed:
The Transferee Company shall give notice in such form as it may deem fit and proper to each party, debtors or depositees, as the case may be, that pursuant to orders of the High Court, sanctioning the Scheme, the said debts, loans, advances, etc., be paid or made good or held on account of the Transferee Company as the person entitled thereto to the end and intent that the right of the Transferor Companies to recover or realise the same stands extinguished. The Transferor Companies may, if required, give notice in such form as it may deem fit Page 18 of 24 C/SCA/8235/2018 CAV ORDER and proper to each person, debtor or depositee that pursuant to the orders of the High Court, sanctioning the Scheme, the said person, debtor or depositee should pay the debt, loan, advance or make good the same or hold the same to its account and that the rights of the Transferee Company to recover or realise the same are in substitution of the rights of the Transferor Companies."

16. As stated by the petitioner, the scheme of amalgamation is approved by Bombay High Court. The copy of the order approving the scheme is also placed on record of the petition. Thus, under the scheme of amalgamation all assets, properties and liabilities of original Company, now stated to be Siemens Health Care Diagnostic Limiteds, stood transferred to Siemens Limited. The scheme of amalgamation as a whole merges the original Company in another Company i.e Siemens Limited and the original Company ceased to exists.

17. In the case of Saraswati Industrial Syndicate Ltd. V/s. Commissioner of Income Tax reported in 1990 suppl SCC 675, para­5 and 6 read as under:

"5. Generally, where only one company is involved in change and the rights of the share holders and creditors are varied, it amounts to reconstruction or reorganisation or scheme of arrangement. In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or algamation has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertakings, the share holders of each blending company become substantially the share holders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly 'amalgamation' does not cover the mere Page 19 of 24 C/SCA/8235/2018 CAV ORDER acquisition by a company of the share capital of other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See Halsbury's Laws of England 4th Edition Vol. 7 Para 1539. Two companies may join to form a new company, but there may be absorption or blending of one by the other, both amount to amalgamation. When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamating company loses its entity .
6. In M/s. General Radio and Appliances Co. Ltd. v. M. A. Khader (dead) by Lrs., (1986) 2 SCC 656 : (AIR 1986 SC 1218), the effect of amalgamation of two companies was considered. M/ s. General Radio and Appliances Co. Ltd. was tenant of a premises under an agreement providing that the tenant shall not sublet the premises or any portion thereof to anyone without the consent of the landlord. M/s. General Radio and Applicances Co. Ltd. was amalgamated with M/s. National Ekco Radio and Engineering Co. Ltd. under a scheme of amalgamation and order of the High Court under Sections 391 and 394 of Companies Act, 1956. Under the amalgamation scheme, the transferee company, namely, M/s. National Ekco Radio and Engineering Company had acquired all the interest, rights including leasehold and tenancy rights of the transferor company and the same vested in the transferee company. Pursuant to the amalgamation scheme the transferee company continued to occupy the premises which had been let out to the transferor company. The landlord initiated proceedings for the eviction on the ground of unauthorised subletting of the premises by the transferor company. The transferee company set up a defence that by amalgamation of the two companies under the order of the Bombay High Court all interest, rights including leasehold and tenancy rights held by the transferor company blended with the transferee company, therefore the transferee company was legal tenant and there was no question of any subletting. The Rent Controller and the High Court both decreed the landlord's suit. This Court in appeal held that Page 20 of 24 C/SCA/8235/2018 CAV ORDER under the order of amalgamation made on the basis of the High Court's order, the transferor company ceased to be in existence in the eye of law and it effaced itself for all practical purposes. This decision lays down that after the amalgamation of the two companies the transferor company ceased to have any entity and the amalgamated company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. In the instant case the Tribunal rightly held that the appellant company was a separate entity and a different assessee, therefore, the allowance made to Indian Sugar Company, which was a different assessee, could not be held to be the income of the amalgamated company for purposes of Section 41(1) of the Act. The High Court was in error in holding that1even after amalgamation of two companies, the transferor company did not become nonexistent instead it continued its entity in a blended form with the appellant company. The High Court's view that on amalgamation there is no complete destruction of corporate personality of the transferor company instead there is a blending of the corporate personality of one with another corporate body and it continues as such with the other is not sustainable in law. The true effect and character of the amalgamation largely depends on the terms of the scheme of merger. But there can be any doubt that when two companies amalgamate and merge into one the transferor company loses its entity as it ceases to have its business. However, their respective rights or liabilities are determined under the scheme of amalgamation but the corporate entity of the transferor company ceases to exist with effect from the date the amalgamation is made effective. "

18. Thus, by virtue of the approval of amalgamation scheme, the original Company with its changed name ceased to exists and the land stood transferred to the company named `Siemens Limited` and such transfer of the land is without prior permission of Collector or the State Government. Though learned senior advocate Mr.Oza submitted that the scheme for amalgamation approved by Page 21 of 24 C/SCA/8235/2018 CAV ORDER Bombay High Court could not be said to be transfer of the land to another company in violation of conditions of grant, however, the court finds that since under the scheme, all assets and properties of the original Company including the land in question stood transferred to another company, and by virtue of the scheme, the original Company ceased to exist, it is the transfer of the land in violation of the grant as no prior permission of the collector was taken.

19. Learned senior advocate Mr. Oza however relied on decisions in the case of Pioneer Protective Glass Fibre P.Ltd. V/s. Fibre Glass Pilkington Ltd. reported 1986 Company Cases 707, in the case of Syed Muzaffar Ali and Others V/s. Municipal Corporation of Delhi, reported in 1995 Supp (4) SCC 426, in the case of Canara Bank and Others V/s. Debasis Das and Others, reported in (2003) 4 SCC 557, and in the case of Lafarge Umiam Mining Private Limited V/s. Union of India and Others, reported in (2011) 7 SCC 338.

20. In the case of Pioneer Protective Glass Fibre P.Ltd. (Supra) the Court examined the effect of change in the name of the company to decide the maintainability of the suit. There is no such issue involved in the present petition. Then in the case of Syed Muzaffar Ali (Supra) the Court considered the question whether violation of building regulation could be compounded and held that mere departure from the authorized plan or putting up construction without sanction does not ipso facto and necessarily and inevitably justify demolition of the structure. Such is also not the issue needs to be examined in the facts of the case. In the case of Debasis Das (Supra) the Court has in the context of disciplinary proceedings taken under the service law observed that notice to the Page 22 of 24 C/SCA/8235/2018 CAV ORDER employee must be precise and the order made in absence of precise notice becomes vitiated. No such issue is required to be examined in view of the remand order made in earlier round of litigation and in view of what is held above as regards the transfer of the land to another company under the scheme of amalgamation. Then the last judgment relied on, is in the case of Lafarge Umiam Mining Private Limited (Supra) is about environment impact assessment for appraising projects to maintain the environmental stability, preservations, restoration of ecological balance enduring the savior of natural heritage of the country. Such aspect are examined in the above judgment in the context of the provisions made in the law relating to environment which will have no bearing to decide on the challenge made to the impugned orders.

21. The Collector and the Secretary both have found that the open land which is major portion of the land granted to the original Company has not been put to use for industrial purpose for very long time and now it has come on record that entire land is transferred to Siemens Limited under the scheme of amalgamation. The Court therefore finds that for the reasons stated above, no interference is required by this Court in the impugned orders in exercise of powers under Article 226 of the Constitution. The petition is therefore, rejected. Notice stands discharged. Interim relief stands vacated.

(C.L. SONI, J) Manshi After pronouncement of the order, learned advocate for the petitioner requests to stay the order for six weeks to enable the petitioner to challenge before higher forum. Learned AGP however, objects to grant of such request. The Court finds that since pending Page 23 of 24 C/SCA/8235/2018 CAV ORDER the petition interim order of status­quo was granted, the Collector / concerned authority could be directed not to take over the possession of the land in question for a period of four weeks from today. The Collector / concerned authority is therefore directed not to take possession of the land in question for a period of four weeks from today.

(C.L. SONI, J) Manshi Page 24 of 24