BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD. versus STATE OF UTTAR PRADESH AND ANR.
[2023] 4 S.C.R. 1053, Supreme Court of India, 2023
Outcome: Disposed off
Segment: Facts
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BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
v.
STATE OF UTTAR PRADESH AND ANR.
(Transferred Case (Civil) No. 82 of 2022)
MARCH 17, 2023
[DINESH MAHESHWARI AND J. K. MAHESHWARI, JJ.]
Lease: Conversion of land from leasehold to freehold in view
of policy formulated by the State – Entitlement to – On facts,
allotment of commercial plots to the petitioner company by the State
Industrial Development Corporation-UPSIDC, land allotted on 90
years lease basis – Building plan for construction over allotted
land sanctioned – Construction completed and issuance of partial
completion certificate – Thereafter, policy formulated by the
respondent no. 1 for growth of tourism by setting up theme/
amusements parks – Policy laid down conditions and incentives,
available to theme parks – Thereafter, proposal by the petitioner
for recognition of its project as a theme based mall – Petitioner
then sought conversion of the subject land from leasehold to
freehold – Non-acceptance of the proposal of the petitioner to
convert subject land from leasehold to freehold as per the policy
formulated and thereafter amended – Challenge to – Held: When
the land had already been leased to the petitioner and the petitioner
is also holding the same as lessee under the lease deeds executed
for the purpose, no reason, justification, logic or rationale that
such leasehold rights be converted into freehold rights – Amended
policy relied upon by the petitioner came into existence only after
second completion certificate had been issued to the petitioner and,
the mall had been put into operation – No stipulation found in the
original policy or its amendment that it could be applied with
retrospective effect and to override the existing legal rights as also
the existing legal obligations - Policy in question with its amendment
is of no application whatsoever in relation to the subject land and
the project – Thus, the claim of the petitioner for freehold rights in
relation to the subject land cannot be accepted – Furthermore, the
petitioner seems to have developed a mall on the subject land through
private investment and there is no participation of the State
[2023] 4 S.C.R. 1053
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Government or any public sector undertaking or any instrumentality
of the State therein – Thus, the claim of the petitioner to seek benefits
flowing from the Office Memo is struck down.
Disposing of the matters, the Court
HELD: 1.1 The entire case of the petitioner-company,
asserting its right to get the subject land converted from leasehold
to freehold, is premised on the policy formulated by the
respondent No. 1 on 06.11.2013 and amended on 03.05.2016.
The petitioner would assume that the said policy with its
amendment is applicable to its project and to the subject land.
This assumption is without any legal basis and the claim of the
petitioner turns out to be hollow and baseless because neither
the original policy formulated on 06.11.2013 nor its amendment
on 03.05.2016 have any application to the subject land or to the
project of the petitioner. [Para 15][1088-F-G]
1.2. The subject land was allotted to the petitioner on
05.08.2006 after acceptance of its offer of allotment of the said
industrial plot by UPSIDC. Clause 14(a) of the allotment letter
dated 05.08.2006 had been clear and unequivocal that land was
allotted on 90 years lease basis. Further, it was provided in clause
10(b) of the allotment letter that tripartite lease deed of the built-
up premises would be executed where the allottee of the
developer shall be the lessee; UPSIDC shall be the lessor; and
the developer (the petitioner) shall be a
confirming party. The
lease deed dated 23.08.2006 in relation to 37208 sq. mtrs. of the
allotted land carried the covenants, inter alia, that the lessee (the
petitioner) will not, without the consent of lessor (UPSIDC),
transfer, sublet, relinquish, mortgage or assign its interest in the
demised premises or in the buildings standing thereon with the
other requirements [vide clause 3 (j)]. It was also stipulated that
the allottee shall have to abide by the general terms and conditions
of allotment of UPSIDC [vide clause 13]. It appears that in this
lease deed dated 23.08.2006, the stipulation regarding tripartite
lease deed did not as such occur but the said clause 13 made all
the general conditions of allotment binding on the petitioner.
Moreover, in the other lease deed dated 30.03.2009 in relation
to the adjacent plot of land, this stipulation was also inserted in
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clause 3(j). The Court is not entering into the questions relating
to tripartite lease deed in this matter but, this much is apparent
on a comprehensive look at the terms of allotment and the
covenants of lease deeds that the land was allotted to the petitioner
on 90 years lease basis and further treatment of land and built-up
portion thereupon were to abide by those terms and covenants.
It is also clear that possession of the entire parcel of land
comprising the aforesaid two lease deeds, i.e., 40505 sq. mtrs.,
was handed over to petitioner on 31.03.2009 and on 08.10.2009,
the building plan for construction over the aforesaid allotted land
was sanctioned by respondent No. 2 whereafter construction over
an area of 179017.82 sq. mtrs. was completed by the petitioner
for which, a partial completion certificate was issued by
respondent No. 2 on 07.05.2011. Until all this time, there was
nothing existing as regards the policy sought to be relied upon
by the petitioner. [Para 15.1][1088-H; 1089-A-F]
1.3. The policy in question came up for the first time only
on 06.11.2013 and it was formulated essentially for growth of
tourism sector in the State of Uttar Pradesh by setting up theme
parks/amusement parks. The said policy dated 06.11.2013 laid
down conditions and incentives, including exemption from stamp
duty, exemption from tax on construction goods/materials
imported into the State etc., which were available to the theme
parks/amusement parks with minimum
area of 300 acres and
minimum capital investment of Rs. 500 crores. Clause 3 of the
said policy, of course, provided that a theme park/amusement
park could be established and operated by private sector, public-
private partnership or any authority by creating special purpose
vehicle and in that situation all the decisions regarding
assessment of the desired land, selection of the private investor
and implementation of the project were to be taken by the
concerned authority/government body/public undertaking under
its own rules but the Court is unable to find any correlation
whatsoever of this stipulation of the policy with the subject land
that had been given on lease to the petitioner as also with the
project of the petitioner which could never be termed as any
theme park or amusement park. Viewed in this light, the letter
dated 31.01.2015 as sent by the Managing Director of UPSIDC,
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recommending the case of the petitioner to declare its multiplex,
hotel and commercial construction as tourist destination, turns
out to be rather baseless and its accompanying document, stating
the demand of the petitioner to convert the land in question to
freehold, also appears to be wanting in logic. The project of the
petitioner cannot be correlated with this policy dated 06.11.2013,
meant for theme park/amusement park and that too with
involvement of a Government body or an instrumentality of the
Government in selection of the private investor as also with
participation by way of investment upto 20% of the cost of the
land. [Para 15.2][1083-G-H; 1090-A-E]
1.4. On 16.04.2015, respondent No. 2 issued second
completion certificate in respect of the project of the petitioner.
Even until this point of time, there was no amendment to the
policy in question. As regards the amendment of the policy in
question by way of Office Memo dated 03.05.2016, of course, the
policy to promote tourism was modified so as to grant certain
other concessions and was also expanded to include theme-based
mall but then, such broadening of the policy came with typical
and peculiar stipulations. A Committee was put in place for giving
recommendations for permissions in the matters related with
theme-based mall. Significantly, clause 4 of the original policy
was modified in the manner that for theme-based mall, the limit
of partnership of
public enterprise/company of the State
Government was changed from 20% of the maximum cost of land
to minimum 20% of cost of land; and it was provided that the
working agency will provide freehold to the SPV after acquiring
the land as per the rules, for which freehold charge will be payable.
These stipulations occurring in the said Office Memo dated
03.05.2016 make it more than clear that as regards theme-based
mall a minimum of 20% of the partnership of the State Government
or its instrumentality was stipulated; and such instrumentality of
the State Government was also referred to as the working agency,
which was to provide freehold land to the SPV to be created for
the purpose. The petitioner seems to have developed a mall on
the subject land and, as per the suggestions made in the referred
communications, seems to have provided certain facilities to make
it attractive but fact of the matter remains that the project has
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been implemented by the petitioner through private investment
and there is no participation of the State Government or any public
sector undertaking or any instrumentality of the State therein.
That being the position, claim of the petitioner to seek benefits
flowing from the Office Memo dated 03.05.2016 falls flat and is
knocked to the ground. [Para 15.3 & 15.4][1090-E-H; 1091-A-
C]
1.5. No SPV has been created in relation to the project of
the petitioner with involvement of the State Government or any
of its agencies/instrumentalities. Which particular agency is, then,
to be termed as “working agency” for the purpose of the Office
Memo dated 03.05.2016 remains a question inexplicable. If the
stretch of arguments of the petitioner seeking freehold land is
taken into consideration, only UPSIDC could be termed as
“working agency” for the present purpose but then, there is no
partnership of UPSIDC in this project. [Para 15.4.1][1091-D-E]
1.6. The subject land was specifically leased to the petitioner
for a period of 90 years in terms of the allotment letter dated
05.08.2006 and then lease deeds were executed on 23.08.2006
and 30.03.2009. The construction was undertaken by the
petitioner over part of the land in question where partial
completion certificate was issued on 07.05.2011 and second
completion certificate was issued on 16.04.2015. Several
significant consequences follow from this status of record. In the
first place, when the land had already been
leased to the petitioner
and the petitioner is also holding the same as lessee under the
lease deeds executed for the purpose, there does not appear any
reason, justification, logic or rationale that such leasehold rights
be converted into freehold rights. Secondly, the amended policy
which is sought to be relied upon by the petitioner came into
existence only after second completion certificate had been issued
to the petitioner and, as per the petitioner’s own assertions, the
mall had been put into operation. No stipulation is found in the
original policy or its amendment that it could be applied with
retrospective effect and to override the existing legal rights as
also the existing legal obligations. [Para 15.5][1091-F-H; 1092-
A]
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
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1.7 Viewed from any angle, even on direct construction of
the relevant clauses vis-à-vis the subject-matter of the present
petition, it remains beyond a shadow of doubt that the policy in
question with its amendment is of no application whatsoever in
relation to the project in question. Therefore, the claim of the
petitioner has rightly been rejected. [Para 15.6][1092-B-C]
1.8. In relation to the relied upon letter dated 31.01.2015
sent by the Managing Director of UPSIDC, recommending the
case of the petitioner to declare its multiplex, hotel and
commercial construction as tourist destination, the same had been
wholly baseless and rather unwarranted. Its accompanying
document carrying the demands of the petitioner for various
grants and exemptions as also for converting the subject land to
freehold was also without any legal basis. At the relevant point of
time, the policy in question only related to theme parks/
amusement parks and it is difficult to see even a logic that the
said Managing Director chose to forward the proposition of the
petitioner for consideration of the State Cabinet. In any case, the
said letter dated 31.01.2015 was only recommendatory in nature;
and even the recommendation had only been to declare the places
as tourist destination and to give exemption. The Managing
Director of UPSIDC could neither have recommended for
converting the land to freehold nor did he do so. The said letter
is of no
relevance whatsoever. [Para 16][1092-C-F]
1.9. The letter/communication dated 16.09.2016, which had
been a communication received by the petitioner from the
Director General Tourism. The petitioner has described this letter
as one of “approval” and has framed the relief in the writ petition
on that basis. During the course of submissions too, substantial
reliance has been placed on this letter/communication dated
16.09.2016 and the same has been termed as a letter of “approval/
qualification.” As would appear from the record, the petitioner
addressed various communications on 12.12.2016, 30.05.2017
and 19.02.2018 to UPSIDC while asserting that the mall in
question had already been declared as theme-based mall and the
petitioner-company is entitled to get the subject land converted
from leasehold to freehold. [Para 17][1092-F-H]
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1.10. Whatsoever had been the composition of the
Committee, it could have only made recommendation for final
decision by the competent authority. Merely for presence of the
Principal Secretaries of the Departments concerned in the
Committee, it cannot be held that its recommendation itself would
become a binding decision. Moreover, a close look at the said
communication dated 16.09.2016 makes it evident that even the
recommendation had only been to approve the proposal ‘as a
theme-based mall.’ It is too far-stretched to read this
communication as if the Committee had recommended for grant
of freehold rights. Providing freehold land for the purpose of
setting up a theme-based mall had entirely different requirements
and had been of entirely different connotations under the
amendment Memo dated 03.05.2016. In composition of the said
Committee, there was no representative of the agency/
instrumentality directly concerned with the subject land i.e.,
UPSIDC. Any suggestion or recommendation in relation to the
subject land as also the lease deeds already executed between
the petitioner-company and UPSIDC could not have been made
without taking into account the stand of UPSIDC. After passing
of orders dated 20.10.2021 and 13.12.2021 by this Court in W.P.
(Crl.) 242 of 2019, the matter was indeed examined by the
Industrial Development Section-4 of the Government of Uttar
Pradesh where the director of the petitioner-company was
afforded the opportunity of
personal hearing on 19.01.2022
through video conferencing and his further representation sent
through email on 21.01.2022 was also taken into consideration
while passing the impugned order dated 24.01.2022. [Para 17.1
& 17.2][1093-C-G]
1.11. Viewed from any angle, even on direct construction
of the relevant clauses vis-à-vis the subject-matter of the present
petition, it remains beyond a shadow of doubt that the policy in
question with its amendment is of no application whatsoever in
relation to the project in question. Therefore, the claim of the
petitioner has rightly been rejected. The policy in question cannot
be applied in relation to the subject land. Therefore, there is no
necessity to delve further into the other issues raised on behalf
of the respondent No. 2 that it has no policy to grant freehold
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
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rights in its allotments. Suffice it would be to say for the present
purpose that the claim of the petitioner for freehold rights in
relation to the subject land cannot be accepted. [Para 15.6 and
18][1092-B-C; 1093-H; 1094-A-B]
1.12 The writ petition filed by the petitioner-company in
the High Court is dismissed; and the first prayer in Crl. M.P. as
regards directions for converting the subject land from leasehold
to freehold, is also rejected. [Para 20][1094-D]
CIVIL ORIGINAL JURISDICTION: Transferred Case (Civil)
No. 82 of 2022.
Civil Miscellaneous Writ Petition No.3790 of 2022 in the High
Court of Judicature at Allahabad.
Shyam Divan, Sr. Adv., Vishal Gosain, Viresh B. Saharya, Akshat
Agarwal, Ms. Rudrani Tyagi, P. Sharma, Manoj K. Mishra, Mareesh
Pravir Sahay, Advs. for the Petitioner.
K. M. Nataraj, ASG, Vinod Diwakar, AAG, A N S Nadkarni, Ravi
Mehrotra, Ms. Meenakshi Arora, Devdutt Kamath, Sr. Advs., Chirag
M. Shroff, Apoorv Srivastava, Ms. Ruchira Gupta, Ms. N. Shah, Ms.
Deepti Arya, Ms. Harshita Sharma, Jogy Scaria, Garvesh Kabra, B. N.
Dubey, Dhawan Uniyal, Ms. Ranjana Narayana, Rajan Kumar Chourasia,
Mohammed Akhil, Shailesh Madhiyal, Sughosh Subramanyam, Nakul
Chengappa K. K., Arvind Kumar Sharma, Suryajyoti Singh Paul, Rohit
Singh, Gopal Jha, Gopal Prasad, Parijat Kishore, Guntur Pramod Kumar,
Prem Prakash, Arjun Nanda, Sumeer Sodhi, Ravinder Kumar Yadav,
Ms. Shuchi Singh, Krishna Kant Dubey, Vivek Kumar
Pandey, Rakesh
Kumar Tewari, Sanjay Kumar Dubey, Binod Kumar Singh, Aman Kumar,
Ms. Nidhi, Sarthak Arora, Mohit Girdhar, Shree Pal Singh, Ms. Basuri
Swaraj, Amit Sharma, Varun Chopra, Sriram Parakkat, Vishnu Sankar,
Ms. Athira Nair, Aditya Santhosh, M/s Lawfic, Gaurav Sharma, Avinash
Sharma, Abhinav Jain, Ms. Preeja Nair, Prakash Chandra Sharma,
Rajeev Singh, Manoj K. Mishra, M/s. V. Maheshwari & Co., Sanjay
Kumar Tyagi, Hitesh Kumar Sharma, S. K. Rajora, Akhileshwar Jha,
Ms. Kavya S. Lokande, Ms. Niharika Dewivedi, Narendra Pal Sharma,
C. M. Jha, Ms. Manju Jetley, Mrs. Swarupama Chaturvedi, Varun K.
Chopra, M/s. Vkc Law Offices, Dr. Monika Gusain, S. K. Verma, Vishal
Prasad, Shree Prakash Sinha, Rakesh Mishra, Ms. Mohua Sinha,
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Nawalendra Kumar, Rishabh Gupta, Shekhar Kumar, Himanshu
Bhushan, J. B. Pathak, Kumar Mihir, Ms. Garima Bajaj, Raghavendra
Mohan Bajaj, Vivek Narayan Sharma, Mohit D. Ram, Anish R. Shah,
Krishnamohan K., Advs. for the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
1. In this transferred case, registered on withdrawal of a writ
petition filed by the petitioner in the High Court of Judicature at Allahabad
(Writ Petition No. 3790 of 2022) to this Court, the petitioner-company
has challenged the order dated 24.01.2022 issued by respondent No. 1
in not accepting its proposal to convert the subject land from leasehold
to freehold as per the policy formulated on 06.11.2013 and amended on
03.05.2016.
2. In the writ petition so filed in the High Court and transferred to
this Court, the petitioner has sought the reliefs in the following terms: -
“a. Issue a writ, order or direction in the nature of certiorari quashing
the impugned order dated 24.01.2022 passed by Respondent No.1
(Annexure-11) to the writ petition and directing the Respondent
No.2 to grant freehold plot no. SH-3, Surajpur Site-IV in the light
of approval dated 16.09.2016 extending benefits of Government
Orders dated 06.11.2013 and 03.05.2016.
b. To pass such other and further order, which this Hon’ble court
may deem fit and proper in the circumstances of the present case.
c. Award the cost of the present petition to the Petitioner.”
3. The relevant background and
factual aspects leading to this
writ petition and its transfer to this Court could be taken into comprehension
as follows1:
3.1. On 05.08.2006, the petitioner-company’s offer (bid) for
allotment of commercial Plot No. SH-3 in Industrial Area Site-IV,
Surajpur, District Gautam Budh Nagar, Uttar Pradesh with approximate
1 The extractions herein are essentially taken from IA No. 15392 of 2022 and IA No.
156279 of 2022 filed by the petitioner for placing on record the English translation of
the documents sought to be referred, as also from the documents filed with the writ
petition.
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area 37500 sq. mtrs. came to be accepted by the Uttar Pradesh State
Industrial Development Corporation2-3 and, accordingly, the allotment
letter was issued in favour of the petitioner stating the terms and conditions
of this allotment, including that the land was being allotted on 90 years
lease basis. A few relevant stipulations in this allotment letter dated
05.08.2006 read as under: -
“ ****
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9. The Possession of Land will be handed over/delivered to you
after payment of 25% of total amount (as per bid) and after
Execution of Lease Deed with the Corporation. The allottee/
Developer will have to take possession after execution of lease
deed within three months from the date of allotment letter failing
which plot is liable to cancelled.
10. a.
The allottee shall have the right to sell of the built
up portion to any person for its choice for first
such transfer no levy shall be charged by UPSIDC.
b.
The triparite Lease Deed of the built-up premises
shall be executed by UPSIDC Ltd., with the
ultimate allottees of Developer on the request of
the developer in writing.
In Triparite lease deed, the allottee of developer
shall be the lessee, the UPSIDC Ltd., will be the
lesser and the developer shall be a confirming party.
The UPSIDC will be transferring the proportionate
undelivered interest in the land while the developer
will be transferring the interest in the built-up space.
c.
The Lease Deed of a built-up
space will be
executed only after the corporation has given
completion certificate. For that built up space.
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14. (a)
The land is allotted on 90 years lease basis which
has to be specified to its tenants/Co./Owners
2 ‘UPSIDC’, for short.
3 This Corporation is now known as Uttar Pradesh State Industrial Development
Authority (‘UPSIDA’, for short) and is impleaded as respondent No.2 as such. However,
for continuity of discussion herein, respondent No. 2 is also referred to as ‘UPSIDC’.
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(b)
The Lease Deed will be executed by the
corporation directly with the various persons on
the recommendation made by you without any
transfer charges. On the subsequent transfer of
the premises/plot, levy as per the prevailing rules
of the corporation at that time will be charged.
****
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****
3.2. It appears that the actual measurement of the land so allotted
stood at 37208 sq. mtrs. and lease deed was executed in favour of the
petitioner on 23.08.2006 with reference to this actual measurement. A
few relevant clauses of this lease deed dated 23.08.2006 could be usefully
reproduced as under: -
“3. AND THE LESSEE DOTH HEREBY COVENANTS WITH
THE LESSOR AS UNDER:
…..
(j) That the Lessee will not without the previous consent in writing
of the Lessor, transfer, sublet, relinquish mortgage or assign its
interest in the demised premises or buildings standing thereon or
both as a whole and every such-transfer, assignment, relinquishment
mortgage or subletting or both shall be subject to and the transferees
or assigns shall be bound by all the covenants and conditions herein
contained and be answerable to the Lessor in all respects therefore,
and the Lessee will in no case assign, relinquish, mortgage, sublet,
transfer or part with the possession of any portion less than the
whole of the demised premises or cause any sub-division thereof
by metes and bound or otherwise.
Provided that the joint possession or transfer of possession of
demised premises or any
part thereof by the Lessee shall be
deemed to be sub-letting for the purpose of this clause.
****
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8.
(a)
The Allottee shall have to get building approved
from UPSIDC Ltd. and development works have
to be undertaking as per approved plan.
(b)
The FAR and ground coverage shall be allowed
as per the rules and bye-laws of the UPSIDC Ltd.
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
v. STATE OF UTTAR PRADESH [DINESH MAHESHWARI, J.]
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whose prior sanction on Building Plan shall be
sought by allottee at its own cost before making
any construction.
(c)
The land shall be allotted on “as it where it is”
UPSIDC will not responsible for carrying out any
development at any stage except existing
development like Roads and Strom water
drainage.
(d)
All works shall be completed in 05 years from the
date of allotment. Any further extension shall be
as per terms decided by MD, UPSIDC.
(e)
The allottee will have to pay Lease Rent from the
date of Allotment.
9. The allottee shall have to right to sell of the built portion to any
person for its choice for first such transfer no levy shall be charged
by UPSIDC.
10. In case of any dispute between Corporation and Allottee/
Developer, the decision of Managing Director, UPSIDC Ltd., shall
be final and binding on both the parties.
11. The Corporation will have no objection on the request made
by Bidder Company for allowing them 1.8 FAR with 60%
ground coverage subject to the approval of the same by
UPSIDC Ltd.
12. The allottee shall obtain completion certificate from UPSIDC.
13. Allottee will have to abide by general terms and conditions of
Allotment of UPSIDC and also to observe the laws & other rules
and regulation carry out any specific activity from appropriate
Govt. bodies before undertaking such activities. Failure to do so
may result in Cancellation of allotment of the whole plot or part
thereof as UPSIDC deems
fit. .……”
3.3. In addition to the aforesaid allotted parcel of land, another
adjacent plot admeasuring 3297 sq. mtrs. was also allotted in favour of
the petitioner, and another lease deed for this additional parcel of land
was executed on 30.03.2009. The relevant clause of the said lease deed
reads as under: -
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“3. AND THE LESSEE DOTH THEREBY COVENANTS
WITH THE LESSOR AS UNDER:
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(j)
(a) The allottee shall have the right to sell of the builtup
portion to any person for its choice for first such
transfer no levy shall be charged by UPSIDC.
(b) The triparite lease deed of the built-up premises
shall be executed by the UPSIDC LTD., with the
ultimate allottees of Developer on the request of
the developer in writing.
In triparite lease deed, the allottee of developer
shall be the lessee, the UPSIDC Ltd., will be lessor
and the developer shall be a confirming party. The
UPSIDC will be transferring the proportionate
undelivered interest in the land while the developer
will be transferring the interest in the built-up space.
(c) The Lease Deed of the built-up space will be
executed only after the corporation has given
completion certificate. For that built up space.
……”
3.4. Thereafter, possession of the entire parcel of land comprising
the aforesaid two lease deeds, i.e., 40505 sq. mtrs., was handed over to
petitioner on 31.03.2009. Then, on 08.10.2009, respondent No. 2
sanctioned the building plan for construction over the aforesaid allotted
land and pursuant thereto, construction over an area of 179017.82 sq.
mtrs. in respect of Basement -1, Basement -2, Ground Floor, First Floor
and Second Floor was completed for which, a partial completion certificate
was issued by respondent No. 2 on 07.05.2011.
3.5. In the chronology of relevant events, it so
happened that in
the year 2013, respondent No. 1 formulated a policy for growth of tourism
sector in the State of Uttar Pradesh by setting up theme parks/amusement
parks. The aforesaid policy dated 06.11.2013 laid down conditions and
incentives, including exemption from stamp duty, exemption from tax on
construction goods/materials imported into the State etc., which were
available to the theme parks/amusement parks with minimum area of
300 acres and minimum capital investment of Rs. 500 crores. The said
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
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policy of the respondent No. 1, essentially to promote tourism in the
State, as spelt out in the communication dated 06.11.2013 from the
Secretary concerned to all the Principal Secretaries and other officers
of the Government of Uttar Pradesh, reads as under: -
“Subject: To promote tourism in the state To decide the
policy for setting up theme park/amusement park etc.
Sir, tourism industry is not covered by the State’s Establishment
and Industrial Investment Policy-2012. In this sequence, I have
been directed to say that in view of the need to set up an amusement
park in the state for the purpose of Encourage the Tourism, a
policy has been laid down for the establishment of theme park/
amusement park etc. after dueconsideration, It has been decided.
The above policy is as follows:
1. Theme Park I Amusement Park etc. will be set up under the
Uttar Pradesh Town Planning and Development Act, 1973 and
various planning Acts in accordance with the prescribed procedure
for agricultural land use. For this, necessary provisionsIamendments
will be made in the Zoning Regulations for the establishment of
theme parks I amusement parks in the proposed agricultural land
use in the master plans of the notified areas under various planning
acts.
2. Large projects like theme parks/amusement parks have high
initial capital investment and become profitable only after a long
period of time and a large number of local people are employed
in
such projects, so incentives are given to encourage such projects,
decision has been taken. In the light of the above, the following
incentives are allowed in respect of large projects of theme park
/amusement park etc.:
(1) Purchase or lease of land for the project from the StateI Central
Government or its owned corporation, council, company, institution
100% exemption in stamp duty will be given on taking it.
(2) For the construction period or 10 years (whichever is less) for
the establishment of the project, 100% exemption will be given in
the tax on the construction goods/materials imported into the state.
(3) From the date of operation of the project, 100% exemption in
entertainment tax will be provided for 10 years.
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(4) For the year from the date of operation of the project, 100%
exemption will be given in the pleasure tax.
The above incentives will be admissible to only those theme park/
amusement park projects, whose minimum area is 300 acres and
in which the minimum capital investment is Rs. 500.00 crores.
3. Theme Park/Amusement Park can be established and operated
by private sector, PPP or any authority by creating an S.P.V. In
such a situation, all the decisions regarding the assessment of the
desired land, the selection of the private investor and the
implementation of the project after the selection will be taken by
the concerned authority/government body/public undertaking under
its own rules.
4. Participation in such a scheme can be done by any public
undertaking of the state government/S.P.V. or company. This
participation will be limited to a maximum of 20 percent of the
cost of the land required for the project of Theme Park/
Amusement Park, which will continue till the completion of the
project. The concerned government body/establishment/ public
undertaking will spend its share capital (20 percent) as a partner
of SPV, first on land acquisition, so that the investor can be assured
of the availability of land. Only after that Capital investment will
be decided. After the completion of the project, the disinvestment
will be done as per the pre-determined agreement.
5. Under the proposed theme parkIamusement park, all the
development, display, buildings
and activities, etc. will be based
on a central theme or theme, and depending on the theme, there
should be different types of theme parks at different places. Theme
ParkIAmusement Park will have a minimum area of 300 acres
and can be established at such sites, where there is a facility of
access from major roads (such as national highways, expressways,
etc.) and water supply, drainage, ‘solid waste disposal’ for the
selected site. And proper arrangement of power supply should be
available.
(a)
Under the theme parkIamusement park, in addition to the
basic works related to the theme park, other activities such
as convention center, hotel, shopping complex, restaurant,
film studio, multiplex, senior shop, workshop, accommodation
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
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for employees etc. will be included. The permission for theme
parkIamusement park will be normally payable in the
proposed agricultural land use in the master plans of the
notified areas under various planning acts in the state, for
which necessary provisionI amendment will be made in the
master plan, zoning regulations of urban areas and industrial
areas. Theme ParkIAmusement Park can also be
established in the agricultural area outside the Master
PlanNotified Area, for which there will be UPSIDC
Regulatory Authority.
(b)
Under Theme ParkIAmusement Park, activities related to
theme parkIentertainment will be allowed in minimum 75
percent area, while mixed use (such as residential,
commercial, institutional, community and public facilities,
etc.) will be allowed on maximum 25 percent part. The
average FAR for the theme park is 0.5 over the entire plan
area. And 20 percent ground coverage will be admissible.
(c)
DPR of Theme ParkIAmusement Park. And the integrated
layout plan will be approved by the concerned government
agency. The internal and external development work of the
project will be done by the developer himself. In view of
the above, development fee will not be payable by the
developer to the government agency.
6. In the event of the implementation of the theme park project
being done through the process of PPP/SPV, application for
approval of the layout of the theme park project and building plan
etc. For
the construction and operation of the theme park, S.P.V.
or P.P.P. will be done with the prior permission of the government
partner.
7. The said policy of theme park will be applicable in the entire
state. Development Authorities have been established under the
Uttar Pradesh Town Planning and Development Act-1973 and
Uttar Pradesh Industrial Area Development Act-1976. Therefore,
instructions will be issued to the subordinate development
authorities and public undertakings by the Housing and Urban
Planning Department and the Department of Infrastructure and
Industrial Development to implement the policy of the above theme
parkIamusement park.
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8. Hon’ble Chief Minister has been authorized to take necessary
decisions to implement the above proposed policy.”
3.6. In view of the aforesaid policy dated 06.11.2013, petitioner
made a request to respondent No. 2 to recognise the project land as
tourist destination whereupon, the Managing Director of UPSIDC wrote
a letter dated 31.01.2015 to Principal Secretary (Tourism), Government
of Uttar Pradesh, recommending that the said project of the petitioner
be declared as tourist destination and be provided with necessary
exemption. It was further stated that probably, the final decision on the
subject shall be taken by the State Cabinet and hence, the necessary
material for its consideration was also enclosed. The said letter dated
31.01.2015 reads as follows: -
“Investment of about Rs. 800 crores by Bhasin Infotech &
Infrastructure Pvt Ltd on Plot No. SH-2 of Surajpur Site-4 Greater
Noida, Industrial Area of Corporation while doing the construction
of a multiplex commercial and hotel in the name of Grand Venice,
which has been greatly appreciated by the tourism point of view.
On the request of the developer company, investment of more
than Rs. 500 crores and employment availability and for the
purpose of promoting tourism and in order to make their project
run smoothly, it is recommended to declare the place as a tourist
destination, to give exemption to them. Possibly the level of the
above decision will be of the State Cabinet, so the necessary
material is being enclosed for the cabinet note.
Therefore, it is kindly requested to take necessary action on the
above.”
3.6.1. We may also take note of a document placed on record
with IA No. 156279 of 2022, said to be the part of material sent with the
aforesaid letter dated 31.01.2015. It seems to be the justification in making
the recommendations aforesaid and reads as under: -
“IN CONNECTION WITH DECLARING THE GRAND
VENICE (GREATER NOIDA, GAUTAM BUDDHA
NAGAR) AS A TOURIST DESTINATION,
A commercial plot allotted by Uttar Pradesh State Industrial
Development Corporation to M/s Bhasin Infotech & Infrastructure
Pvt. Ltd. Multiplex, Commercial and Hotel has been constructed
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
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by investing about Rs. 800.00 crores, which will provide
employment to about 5000 people. The Grand Venice is a very
timely and convenient place from the point of view of tourism.
The Grand Venice has been developed by the developer to attract
international and domestic tourists in such a way that its unique
architecture, entertainment and geography and community will
be the only place to visit. It is conveniently located near Greater
Noida Express Way and due to its special location, it will also
become a suitable destination for tourists going from Delhi to Agra.
In this project, special care has been taken for educational tourism
while presenting something to the tourists of all age groups and
preferences. An attempt has been made by the developer to
embellish the grandeur and elegance of the famous Italian city of
Venice in The Grand Venice. This Venetian themed remoteness
hub will prove to be a center of special attraction with stunning
structures and sculptures. A ride on the
Gondola in the water canals built inside Mall will provide a real
experience of doing the traditional Gondola fanciers walking along
the beautiful waterways of the city of Venice. Similarly, through
Magic Sky, an attempt has been made to provide the experience
of walking under the virtual sky giving a glimpse of the environment
and weather and the unique environment. In The Grand Venice,
the famous unique feature of Venice is the Fountain
de Trevi,
Julius Caesar’s Statue, Light House, Pisa’s Tower and other art
forms of ltaly have been presented. Along with this, the Indian
Sea world has also been displayed in an area of about 100000
square feet and for the convenience of the tourists, the five-star
deluxe Sheraton Hotel with 270 rooms has also been included in
this complex. Places have been identified for setting up ·of outlets
to display the heritage and handicrafts of Uttar Pradesh, along
with the above features, the project like promotion of tourism and
providing employment to 5000 people along with capital investment
of more than 500 crore rupees. Special benefits such as tax
exemption, grant, establishment of electric friendly metro station,
freehold without fee and suggestions for setting up of outlets for
displaying the heritage and handicrafts of Uttar Pradesh and
declaring tourist places by the developer to operate as demand is
being made. Under which
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Freehold: The plot has been allotted on lease by the
corporation. The developer has demanded convert this land to
freehold without any charges.
TAX Exemption: The developer of the Mall demanded
exemption from entertainment tax and GST in this project which
is applicable to Hotel, Aquarium, Retail etc.
Grant The developer has invested more than Rs. 500.00 crore
in the tourism sector in this project, so a demand for a grant of 5
percent interest has been made.
Electricity: The developer has demanded to provide the
additional power required in the project without any load.
Metro Station: There has been a demand to extend the
proposed Pari Chowk metro station to the project site by the
developer, whose distance is only 1.5 km.
Time Extension Fee: The developer has demanded to waive
off the time extension fee charged by UPSIDC due to delay in
the project. It is recommended to accept the demands being made
by the developer due to the project being Ideal for benefits like
regional development, promotion of tourism and providing more
number of jobs. As above, the proposal is placed before the Cabinet
Committee for perusal and approval.”
3.7. Subsequently, on 16.04.2015, respondent No. 2 issued second
completion certificate in respect of the project of the petitioner.
3.8. Later, respondent No. 1 issued one Office Memo dated
03.05.2016, making a few alterations in the aforesaid policy dated
06.11.2013, including that theme-based mall was also included in the
extensive scheme and UPSIDC was appointed as the nodal agency for
implementation of the policy in the State. However, various other
stipulations were also provided, which were significantly different than
the stipulations in the original policy. The relevant contents of the said
Office Memo dated 03.05.2016, useful for the present purpose, are as
follows: -
 “OFFICE MEMO
That with regard to promote the tourism, to increase the investment
of funds and in view of importance of the extensive schemes
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
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related with the establishment of theme park/amusement park,
the policy has been proclaimed for establishment of theme park/
amusement park vide Office Memo No.3150/41-2013-37 Y0/2012
dated 06.11.2013. For implementation of the abovesaid policy, for
implementation of theme park in Agra, UPSIDC has been
nominated as Nodal Agency.
2. That the following amendments are being made in Para No.2
of the abovesaid extensive policy in view of relevant amendments
for successful implementation of the policy and proposed
amendments vide Letter No.5257 /P.S.M.S./JAIN/2015 dated
20.05.2015 of the Hotel and Restaurants Owners Association,
Agra and vide Letter No.318-319, SIDC dated 02.12.2015 of the
Nodal Agency UPSIDC for further proceedings in the Theme
Park in Agra:
A(1) That hundred percent concession in stamp duty shall be kept
as it is in respect of transfer of land related with the project either
purchased or taken on lease from State/Central Government or
from the Corporation, Council, Company under their ownership.
(2) That hundred percent concession will be provided for building
material/items imported in the state for 10 years or the construction
period (whichever is less) to be used for construction and
establishment of the project.
(3) That hundred percent concession will be granted in
entertainment tax for implementation of the project for 15 years
from the date of operation of the project.
(4) That hundred percent
concession will be provided in the facilities
for 15 years from the date of operation of the project.
(5) Theme based Mall is also included in the extensive scheme
and relaxation is given in respect of limitation of 300 Acres of
minimum land as mentioned in Para No.2 for the matter related
with the theme-based Mall. For giving recommendations to the
permissions in the matter related with the theme-based Mall, a
Committee will be formed as follows in the leadership of the
Principal Secretary, Tourism.
1.
Principal Secretary/Secretary Tourism Department,
President.
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2.
Principal Secretary/Secretary, Cultural Department,
Member.
3.
Principal Secretary, Secretary, Housing and Town Planning
Department, Member.
4.
Director General, Tourism, U.P., Member, Convener.
5.
Managing Director, U.P.S. Tourism Development
Corporation Limited, Member.
B. That in Para No.4 of the extensive policy for above mentioned
project, the limit of partnership of public enterprise/SPB or company
of the State Government is changed from 20 percent of the
maximum cost of land to minimum 20 percent of cost of land
which is relevant for the project.
C. That the working agency will impose amount of 1 percent
charge on the entire expenses (alongwith cost of land) while doing
assessment of cost of the land for establishment of theme park.
D. The working agency will provide freehold land to the S.P.V.
after acquiring the land as per the rules, for which the freehold
charge will be payable as per the rules.
E. That if the abovesaid project is implemented by any such public
enterprise which is covered under some other Act, then in that
event the related terms and conditions mentioned in the said Act
will apply to the said project.
3. That the Official Order No.3150/41-2013-37 /Y0/2012, dated
06.11.2013 issued for the establishment of theme park/amusement
park shall be assumed amended till the abovesaid limits. The terms
and conditions and contract mentioned in the above Official Order
shall remain as it is.”
3.9. It appears that the petitioner, after
taking note of the
amendments so brought about to the original policy, put forward a proposal
for recognition of its project as a theme-based mall, and for benefits,
under the said policy. The proposal so made by the petitioner was duly
considered by the Committee constituted in terms of the said amendment
Memo dated 03.05.2016 and recommendations were made for approval
of the petitioner’s proposal. Accordingly, a letter dated 16.09.2016 was
sent by the Director General Tourism, Uttar Pradesh, Lucknow informing
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
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the recommendation of the Committee. This letter/communication dated
16.09.2016 reads as under: -
“This is to inform you about the above subject that in relation to
construction of Theme Based Mall, the committee constituted for
grant of permission under the policy promulgated by the
Government of Uttar Pradesh, Tourism Division, Government
Order No- 56/2016/ 691/41- 2016 -337 Sa/15 dt 03-5-2016, a
proposal was considered by the committee in their meeting
convened on 23.08.2016 under the chairmanship of Principal
Secretary Tourism, Government of Uttar Pradesh.
In the recommendation meeting, a recommendation has been
made by the committee to approve your proposal as a theme-
based mall as per the policy promulgated.
Sent for information and necessary action.”
4. Acting on and relying upon the letter aforesaid, the petitioner
appears to have addressed various communications on 12.12.2016,
30.05.2017 and 19.02.2018 to UPSIDC for conversion of the subject
land from leasehold to freehold but, all these communications were of
no avail.
5. In the backdrop of events as aforesaid, it shall now be apposite
to refer to the other writ petition pending in this Court, which has been
filed by the director of petitioner-company, Satinder Singh Bhasin, being
W.P. (Crl.) 242 of 2019, and wherein the order came to be passed for
transfer of the present writ petition to this Court.
5.1. Shorn of unnecessary details, it appears that
various persons
were allotted commercial spaces in the mall and the commercial tower
by the petitioner-company and its directors but, in due course of time,
several FIRs were registered against them, alleging fraud, failure to give
assured returns, non-completion of project on time, and siphoning of
money and using it for advertising and procuring other projects. The
allegations in those FIRs and refutation thereof are not of much relevance
for the present purpose and do not require dilation herein.
5.2. The relevant aspect of the matter is that the petitioner of
W.P. (Crl.) No. 242 of 2019, director of the present petitioner-company,
with reference to the position that several FIRs had been registered in
the State of Uttar Pradesh and NCT of Delhi, has made the prayer in
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the said writ petition, inter alia, for consolidation of investigation and
trial against him. While entertaining that writ petition, this Court, by the
order dated 06.11.2019, granted the concession of bail to the petitioner
in relation to all the FIRs referred to in prayer clause (c) and concerning
the project “Grand Venice” in NCR. While laying down conditions for
bail, this Court also expressed hope that the petitioner therein (director
of the present petitioner-company) shall be making all possible attempts
to settle the claims of complainants concerned. Again, by order dated
24.01.2020, it was clarified that the parties were free to approach Delhi
High Court Mediation Centre for resolution of disputes inter-se through
mediation process. Thereafter, in the order dated 20.08.2020, willingness
of the said petitioner was recorded to offer possession as also to facilitate
execution of necessary agreement/sub-lease in favour of the
complainants.
5.3. Thereafter, an application (I.A. No. 124952 of 2021), came
to be filed in W.P. (Crl.) 242 of 2019 for cancellation of bail granted to
the said petitioner on the ground that he was not facilitating execution of
tripartite agreement amongst the builder, unit buyers and UPSIDA. During
the course of consideration of the said application, this Court took note
of the submissions of learned counsel for the petitioner that the
apprehension, which formed the basis for filing the application, could be
dispelled by
calling upon the State of Uttar Pradesh to decide the proposal
for converting the user of subject land to freehold, particularly when the
Committee concerned had already recommended so. In view of the
submission so made and in the given set of circumstances, this Court,
while observing that there was no reason to entertain the prayer for
cancellation of bail, issued directions to the Secretary of the Department
concerned to take decision expeditiously on the pending proposal and to
submit appropriate report in that behalf. The relevant part of the order
so passed by this Court on 20.10.2021 reads as under:
“This application (I.A. No.124952/2021), is filed for cancellation
of bail granted by this Court vide order dated 06.11.2019.
The grievance of the applicant(s) is that the builder (Satinder
Singh Bhasin) is not facilitating execution of tripartite agreement
between the builder, unit buyers and UPSIDA.
In our opinion, that cannot be the basis to entertain the prayer
for cancellation of bail.
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Mr. Shyam Divan, learned counsel appearing for the Builder
(Satinder Singh Bhasin), on the other hand submits that the
apprehension entertained by the applicant(s) that the property
(Grand Venice) in which the applicants have invested and portion
of which is likely to be demolished by the Commissioner, Meerut
Division, Uttar Pradesh can be redressed by calling upon the State
to consider the proposal submitted by the builder for converting
the user of land in question as freehold. That proposal has been
favourably recommended by the concerned Committees and the
State Government needs to now quantify the amount payable by
the Builder for availing of the Scheme of conversion as freehold
land.
In light of this submission, we direct the Secretary of the
concerned Department of the State of Uttar Pradesh to take
expeditious decision on the proposal already submitted for
converting the land in question as freehold land and submit
appropriate report in this Court in that behalf before the next date
of hearing. If there is any further formality to be complied with by
the builder, the builder can be called upon to do so and if the
proposal cannot be accepted in law, that position be made amply
clear in the decision to be taken by the authority concerned by
recording reasons in that regard. To enable the State to submit
the report, we defer the hearing of these matters till 23.11.2021,
when appropriate orders will be passed on
the proposal submitted
by the builder and the submissions made on his behalf.
****
****
****”
5.4. On 13.12.2021, this Court once again impressed upon the
Secretary of the Department concerned to take expeditious decision on
the proposal regarding conversion of the subject land as freehold, as
observed in the order dated 20.10.2021.
6. Pursuant to the direction so issued in the above-referred orders
of this Court, respondent No. 1 considered the matter relating to the
prayer of the petitioner for conversion of the subject land as freehold;
and, by way of the impugned order dated 24.01.2022, declined to accede
to the proposal and prayer of the petitioner for conversion of the subject
land from leasehold to freehold under the said policy and the stipulations
therein.
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6.1. In the impugned order dated 24.01.2022, it was reasoned that
the policy came into existence for the first time in the year 2013 and
theme-based malls were included in the year 2016, whereas the allotment
of the subject land was made on 05.08.2006; the subject land was given
under the lease deed for a period of 90 years; and partial completion
certificate was issued on 07.05.2011. Thus, developers and buyers were
aware about land being taken on lease and investment had been made in
those terms. Further, the planning and construction of plot had not been
under the provisions of policy in question.
6.2. In continuation, it was also reasoned that there was no
participation of any State Government PSU/SPV as required in the
relevant clauses of the amended policy; the land could be made freehold
as per rules after its acquisition by executing agency only if there was
minimum 20% participation of any PSU/SPV of the State Government.
It was also observed that as per the terms of allotment, conditions of
regulating authority would be applicable and there was no provision in
the existing policies of respondent No. 2 to give developed land for
freehold.
6.3. While rejecting the contention of the petitioner that theme
park/amusement park could be established by any private sector, PPP
or any authority creating SPV, it was held that its assessment, selection
and implementation is subject to the decision of authority concerned
under its own rules; and since there
was no policy of the authority
concerned for giving the land as freehold, the request was liable to be
rejected.
6.4. In relation to the other contention that respondent No. 2 should
allow execution of bipartite sub-lease if the land was not made freehold
in absence of any condition of tripartite sub-lease in the lease deed dated
23.08.2006, it was observed that although, the said lease deed did not
explicitly mention the execution of tripartite sub-lease but, the allotment
letter did so and point No. 13 of the said lease deed also made it clear
that the allottees have to abide by general terms and conditions of
allotment. In addition, it was also observed that the other lease deed
dated 30.03.2009 explicitly mentioned such a condition and the integrated
map of both parcels of land for total area of 40505 sq. mtrs. was approved
on 08.10.2009. It was also observed that since the question as to the
execution of tripartite sub-lease was sub judice before the High Court,
it was not proper to take any final decision in that regard.
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
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6.5. The relevant passages of the impugned order dated 24.01.2022
could be reproduced as under: -
“(1) In continuation of the request, point No. 1 submitted by Shri
SS Bhasin, it is to be informed that allotment of plot for commercial,
multiplex, hotel, shopping etc. has been issued on 05.08.2006 and
map dated 08.10.2009 and partial completion certificate on
07.05.2011. In the allotment letter/lease deed also, the land is on
lease hold for 90 years, it is clearly mentioned. It is also known
that the space created in the said project has been booked by the
promoter in favour of different persons and institutions. At the
time of booking, the developers and the buyer were certainly aware
that the said land is leasehold in nature and the investment would
have been made by the investors on the above basis. Since the
policy of the Department of Tourism came into existence for the
first time in 2013, and theme-based malls were included in it in the
year 2016. Therefore, the argument presented in point number-1
does not seem to be justified.
(2) In response to the request expressed in point no. 2 by Shri SS
Bhasin, after perusing all the facts and the mandate issued by the
tourism department dated 06.11.2013 and 03.05.2016, it was
found that the government order issued by the tourism department,
Uttar Pradesh in November 2013 and all the provisions of the
amendment dated 03.05.2016 are effective only from the date of
06.11.2013. As mentioned in these provisions, assessment of land
for projects for construction and operation of theme park/
amusement park/theme-based mall, selection of investor, approval
of layout plan, building plan etc., is to be approved by the
government partner on the basis of the standards mentioned in
the mandates, from which it is clear that in the projects completed
or partially completed before the year 2013, the provisions
of the said mandates will not be effective, rather, these
provisions have been implemented to encourage the establishment
of such new schemes in the state. In the case in question, the
proposed building map was approved by UPSIDA on 08.10.2009
as per the norms applicable for the time being. According to the
above approved map by the petitioner, on the basis of construction,
the first partial completion certificate was issued by UPSIDA on
07.05.2011 in respect of commercial area of 179017 sq. mts. On
the basis of further construction done by the petitioner, second
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partial Completion Certificate was issued by UPSIDA on
16.04.2015. Theme based mall was included under the scheme
on 03.05.2016. From this it is clear that the planning and
construction of the plot in question by the petitioner has not been
done under the provisions of the above referenced mandates issued
by the Tourism Department for the establishment of theme park/
amusement park/theme-based mall. Therefore, the provisions of
the said orders are not effective on the plot in question.
****
****
****
In the case in question, the project has been implemented
by the petitioner through private investment and there is
no participation of any State Government PSU/SPV or
company in the project. As per paragraph d above, a
provision has been made to make the land available as free
hold as per rules after the acquisition of land by the
executing agency only if there is minimum 20 percent
participation of any public sector undertaking/SPV of the
state government. It is also clear from para g of the mandate
dated 03.05.2016 that the Act and the conditions of the
authority related to the project will be considered as
applicable. The plot in question is located in Surajpur Site-
4, notified industrial development area of UPSIDA, which
is regulated by the regulations of UPSIDA. In the existing
policies of UPSIDA, there is a provision to give developed
plots on lease hold only, there is no provision for freehold.
In this context, the request of the petitioner
regarding
freehold of the land in question is not covered by the above
mandates issued by the Tourism Department, Uttar
Pradesh. Its analysis has been done in detail in Para-12 of
Office Order No.- 6009/77-4-21-77 SIDC/18 dated
19.11.2021 issued on 19.11.2021.
The petitioner, vide his representation dated 21.01.2022,
has been requested to read the provisions mentioned in
para-3 of mandate dated 06.11.2013 by linking it with para-
4. The following is mentioned in Para-3 of the mandate
dated 06.11.2013 ‘The establishment and operation of
theme park/amusement park can be done by private sector,
PPP or any authority by creating an APV. In such situation,
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
v. STATE OF UTTAR PRADESH [DINESH MAHESHWARI, J.]
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all the decisions regarding the assessment of the desired
land, the selection of the private investor and the
implementation of the project after the selection will be
taken by the concerned authority/government body/public
undertaking under its own rules.
It is clear in Para-3 that all the decisions regarding
‘establishment and operation of theme park/amusement
park and project implementation’ will be taken by the
concerned authority under its own rules. Since there is no
policy of the authority for freehold, hence the request is
not acceptable.
****
****
****
4. Due perusal of records was done in the context of the facts
mentioned/reported in point no. 4 by Shri SS Bhasin and it was
found that although the lease deed executed on 23.08.2006 does
not directly describe or mention the tripartite sublease deed but
Para 10(b) of the allotment letter dated 05.08.2006 clearly mentions
to execute tripartite sub-lease deed.
10 (b). The Tripartite Lease Deed of the built-up premises
shall be executed by UPSIDC. Ltd., with the ultimate
allottee of Developer on the request of the developer in
writing. In tripartite lease deed, the allottee of developer
shall be the lessee, the UPSIDC Ltd., will be the lessor
and the developer shall be a confirmation party. The
UPSIDC will be transferring the proportionate undelivered
interest in the land while the developer will be transferring
the interest in the built-up space.
In addition to
the above, it is clearly mentioned in the point no. 13
(page 13) of the lease deed executed on 23.08.2006 that the
compliance of the conditions mentioned in the allotment will also
be ensured:
13. The Allottee will have to abide by general terms and
conditions of Allotment of UPSIDC and also to observe the
laws & other rules and regulation carry out any specific
activity from appropriate Govt. bodies before undertaking
such activities. Failure to do so may result in cancellation
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of allotment of the whole plot or part thereof as UPSIDC
deems fit.
Therefore, to say that the condition of tripartite sublease deed
does not apply to them is not legal. Apart from this, the lease deed
executed on 30.03.2009 mentions the execution of tripartite sub-
lease deed. Since in the lease deed executed on 23.08.2006 the
area is 37208.00 and the area mentioned in the lease deed
executed on 30.03.2009 is 3297.00 square meters, the integrated
map of the total area of 40505.00 square meters has been approved
on 08.10.2009. Therefore, in the above circumstances also the
execution of tripartite sub-lease deed is justified under the rules
of the Authority.
Should the tripartite sub-lease deed be executed at present or
not? Regarding the above, Writ Petition No. 1821/2021 is pending
before the Hon’ble High Court of Allahabad, due to which the
Authority has received a stay order on 11.10.2021 in the ongoing
case No. 257/2018 issued by the Hon’ble ACJ (SD) Gautam Budh
Nagar. Since the matter in question is sub-judice in the Hon’ble
High Court, it is not appropriate to take any final decision on it.
As per above it is clear that the leasehold plot number- SH-3,
Industrial area Surajpur site-4 in question was requested by Shri
SS Bhasin to be freehold in accordance with the mandate issued
by the tourism department for the year 2013 and 2016 under the
terms of allotment letter and lease deed and due to non-compliance
and in the light of the opinion made
available by the Justice
Department in the past, due to the lack of legality and the provisions
mentioned in the Government Order dated 06.11.2013 and
03.05.2016 issued by the Department of Tourism. There is no
free-hold policy in respect of the Industrial Development
Authority’s land. In view of the provisions of the mandate dated
06.11.2013 and 03.05.2016, the plot No. SH-3, Industrial Area,
Surajpur Site-4, District- Gautam Budh Nagar in question of the
petitioner is not legal to be freehold.
Therefore, in the above case, regarding the fee-holding of plot no.
SH-03, Industrial Area Surajpur site-4, the request and
representation of Shri SS Bhasin, director of the allottee company
M/s Bhasin Infotech and Infrastructure Pvt Ltd, was submitted
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
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to the Hon’ble Supreme Court on 21.01.2022. In compliance with
the order dated 13.12.2021, it is hereby disposed of as above.”
(emphasis in bold as in original)
7. As noticed, being aggrieved by the aforesaid order dated
24.01.2022, petitioner filed the present writ petition in the High Court.
During the pendency of this writ petition in the High Court, an I.A. No.
99514 of 2021 came to be filed in W.P. (Crl.) 242 of 2019 pending before
this Court and after examining the matter, by the order dated 28.07.2022,
W.P. No. 3790 of 2022 pending before the High Court of Allahabad was
withdrawn to this Court in the interest of justice. The relevant part of the
order dated 28.07.2022 withdrawing the writ petition to this Court reads
as under: -
“After hearing learned counsel for the parties for some time,
in our opinion, to do substantial justice to the parties, it may be
appropriate to hear the issues raised in Writ Petition No.3790/
2022 filed before the High Court of Judicature at Allahabad, Bench
at Allahabad, along with Writ Petition (Crl.) No.242 of 2019 pending
in this Court.
Accordingly, we direct withdrawal of the stated Writ Petition
No.3790/2022, which is pending in the High Court of Judicature
at Allahabad, and to be heard along with Writ Petition (Crl.) No.242/
2019.
The Registrar (Judl.) of this Court may ensure that papers of
the stated writ petition are made available and placed before the
Court on the next
date of hearing along with Writ Petition (Crl.)
No.242/2019 by requesting the High Court to forward the papers
through Special Messenger, if necessary.
List this application along with main matter on 22nd August,
2022.”
8. Therefore, and in compliance of the aforesaid order dated
28.07.2022, the writ petition filed by the petitioner-company has been
withdrawn to this Court and has been placed for consideration alongwith
the main matter, being W.P. (Crl.) No. 242 of 2019. On 07.09.2022,
after having heard learned counsel for the parties preliminarily, we found
it just and appropriate to consider this transferred case before entering
into the remaining issues in the connected matters. Accordingly, the parties
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were granted time to complete the record with translated copies of the
relevant documents and short notes on their proposed submissions.
8.1. After completion of the record, we have heard Mr. Shyam
Divan, learned senior counsel for the petitioner, Mr. K.M. Nataraj, learned
Additional Solicitor General for respondent No. 1, and Mr. A.N.S.
Nadkarni, learned senior counsel for respondent No. 2 in relation to this
transferred case, T. C. (C) No. 82 of 2022.
9. It may be pointed out at this juncture that in W.P. (Crl.) No. 242
of 2019, two applications, being Crl. M.P. Nos. 99512 of 2021 and 99514
of 2021, have been filed by director of the present petitioner-company,
respectively for impleadment of Uttar Pradesh State Industrial
Development Authority in the said writ petition filed in this Court; and
for directions to respondents concerned, to convert the subject land from
leasehold to freehold as also for other directions to UPSIDC to not
interfere in execution of sub-lease deed by the petitioner-company for
transfer of the built-up portion of its project in the name of allottees or in
the alternative for directions to UPSIDC to enter into tripartite sub-
lease deed for transfer of the built-up portion in the name of allottees.
9.1. In regard to the aforesaid applications, Crl. M.P. Nos. 99512
of 2021 and 99514 of 2021, we deem it appropriate to observe that so
far as the prayers for impleadment in W.P. (Crl.) No. 242 of 2019 and
for directions to the
UPSIDC as regards execution of sub-lease deed or
tripartite sub-lease deed are concerned, the same being not directly the
subject-matter of this transferred case [T. C. (C) No. 82 of 2022], we
would prefer leaving those aspects open for consideration at the
appropriate stage in the appropriate proceedings. It may, however, be
observed that the first prayer in Crl. M.P. No. 99514 of 2021, seeking
directions for converting the subject land from leasehold to freehold, is
essentially the relief claimed in this transferred case and shall stand
covered by this judgment. In the given status of record, we have, of
course, taken into consideration a few documents filed along with these
applications, particularly the communications of the petitioner to UPSIDC
for conversion of land from leasehold to freehold.
10. While challenging the impugned rejection order dated
24.01.2022, learned senior counsel for the petitioner has referred to the
background features relating to the project undertaken by the petitioner
on the subject land and has asserted on the rights of the petitioner to get
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
v. STATE OF UTTAR PRADESH [DINESH MAHESHWARI, J.]
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the benefits ensuing from the said policy of the State Government,
including conversion of the subject land from leasehold to freehold.
10.1. With reference to the background facts about two contiguous
pieces of land, admeasuring 40505 sq. mtrs. having been leased out to
the petitioner under the aforesaid two separate lease deeds dated
23.08.2006 and dated 30.03.2009, it has been submitted that the petitioner
has made operational one combined project, on one part of the subject
land, i.e., the portion leased out under the lease deed dated 23.08.2006,
in the name and style “Grand Venice Mall”, which is housing several
high-end brands. It has also been submitted that the said project is
operational since the mid of 2016 inasmuch as undisputed possession
has already been taken by 301 buyers; and out of 220 allottees who
have disputes with the petitioner, 97 have settled and the vacant units
are awaiting possession by the remaining buyers/investors.
10.2. While assailing the impugned order dated 24.01.2022, it has
been strenuously argued by the learned senior counsel for petitioner that
the order so passed by the Additional Chief Secretary/Principal Secretary
Industrial Development Section-4, Uttar Pradesh is devoid of any merit
and is contrary to the stand taken by the respondents earlier and, therefore,
suffers from grave infirmity and deserves to be set aside.
10.3. With reference to the terms of the policy formulated
by the
Government of Uttar Pradesh in the year 2013 for promotion of tourism
in the State, it has been submitted that clause 3 of the said policy clearly
states that ‘Theme Park/Amusement Park can be established and
operated by private sector, PPP or any authority by creating an
S.P.V. In such a situation, all the decisions regarding the assessment
of the desired land, the selection of the private investor and the
implementation of the project after the selection will be taken by
the concerned authority/government body/public undertaking under
its own rules.’ Therefore, the mall in question, which is a theme-based
mall, is entitled to the benefits ensuing from the said policy for conversion
of the land from leasehold to freehold; and the recommendation letter
dated 31.01.2015, was rightly issued by UPSIDC to the Department of
Tourism of the Government of Uttar Pradesh, that the project in question
be recognized as a tourist destination.
10.4. Learned senior counsel for the petitioner has further referred
to the amendment of the said policy by the Memo dated 03.05.2016, and
with particular emphasis on clause 5 thereof, has contended that theme-
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based mall has also been included in the policy with relaxation as regards
minimum of 300 acres of area in case of theme-based malls. With further
emphasis on clause 5 (d) which stipulates that ‘The working agency
will provide freehold land to the S.P.V. after acquiring the land as
per the rules, for which the freehold charge will be payable as per
the rules’, it has been argued that in view of the aforesaid amendments,
the petitioner is entitled to the benefit of getting the subject land converted
from leasehold to freehold.
10.5. It has been, thus, contended that in view of eligibility and
entitlement of the petitioner for the benefits under the policy in question
as amended, the approval/qualification letter dated 16.09.2016 was rightly
issued by the Director General Tourism of the State of Uttar Pradesh,
pursuant to the recommendation of the Committee constituted under the
amended policy, permitting the project situated at the plot in question to
be recognized as a “theme-based mall” and also recognising that the
petitioner would be entitled to the benefits ensuing from the Memo dated
03.05.2016. Learned senior counsel would submit that in terms of the
amended policy and also on account of the project in question having
been recognised as a theme-based mall, the petitioner is entitled to get
the subject land converted from leasehold to freehold and denial of this
right of the petitioner under the impugned order dated 24.01.2022 deserves
to be
disapproved.
10.6. It has also been submitted on behalf of the petitioner that
resolution of the aforesaid issue will not only add value to the investment
of the buyers but will also generate employment opportunities; revenue
for the State and Central Government; and entertainment/recreational
opportunities for the people from all walks of life. Further to this, learned
senior counsel for the petitioner has submitted that non-grant of freehold
would adversely impede investment in the mall since expected foreign
investment would fall through and Indian investors would refuse to execute
the lease deeds.
10.7. In the other limb of submissions and prayers, learned senior
counsel for the petitioner has submitted that the petitioner should be
allowed to enter into bipartite agreements with the investors, since clause
9 of the lease deed dated 23.08.2006 provides for an absolute right of
the allottee to sell the built-up portion of the land to any person of his
choice; and if at all permission is required in terms of clause 3 of the
aforesaid lease deed, the same is with respect to the transfer of a portion
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
v. STATE OF UTTAR PRADESH [DINESH MAHESHWARI, J.]
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of land, which is not the case in the present scenario. In this regard,
reference has also been made to the facts concerning a civil suit filed by
the petitioner wherein, the Additional Civil Judge (SD), Gautam Budh
Nagar, by the order dated 11.10.2021, had restrained respondent No. 2
from implementing clauses 3(e), (i), (j) and 5 of the aforesaid lease deed;
and, therefore, it has been argued that the petitioner-company is within
its rights to enter into bipartite agreements. It has also been pointed out
that an ex parte stay was granted by the Allahabad High Court over the
said order dated 11.10.2021, which was vacated by this Court after a
petition for special leave to appeal was filed by the petitioner, while
continuing with the interim relief granted by the Trial Court.
10.7.1. Learned senior counsel for the petitioner has highlighted
the practical difficulties of entering into tripartite sub-lease agreements
with the tenants in a tenancy structure; and has submitted that clarification
is required that no tripartite lease deed is required for sub-letting the
built-up space; that clause 3(j) of the lease deed dated 23.08.2006 is
inapplicable for transfer of built-up portion; and that the right under clause
9 of the said lease is absolute.
11. Per contra, learned ASG and learned senior counsel for
UPSIDC have duly supported the order impugned and have submitted
that no case for issuance of any writ, order or
direction in terms of the
prayers of the petitioner is made out.
11.1. While refuting the case of the petitioner, it has been submitted
on behalf of the respondents that the amended policy would not be
applicable to the petitioner for four primary reasons. First, that as per
the lease deed, the subject land has been leased to the petitioner, with 90
years being the term of the lease. Secondly, the policy stipulates that
there must be partnership with State Government/PSU/Government
Company, who must have minimum 20% stake/investment but then, there
is no such investment of the State Government or PSU or Government
Company in the project in question. Thirdly, the policy is applicable to
projects having an average Floor Area Ratio4 of 0.5 whereas FAR of
the subject project is 4.0. Fourthly, the policy stipulates that the acquired
land is to be made available to the SPV as freehold, for the sole purpose
of construction of theme-based mall; and there is nothing within the
policy that provides for conversion of the land from leasehold to freehold.
4 ‘FAR’ for short.
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11.1.1. Apart from the above, it has also been submitted that since
the policy was prospective in nature, it would not be applicable to the
petitioner since allotment of leasehold land was made and even the first
partial completion certificate was also issued much before issuance of
policy.
11.2. It has further been contended on behalf of the respondents
that the petitioner cannot place reliance on the two letters/communication
dated 31.01.2015 and 16.09.2016 since both were merely
recommendatory in nature where, in the first letter, the only
recommendation was that the subject mall be recognised as a tourist
destination and even in the second letter, the recommendation had
essentially been to the effect that the subject mall be approved as a
theme-based mall under the amended policy dated 03.05.2016. However,
there had not been any recommendation for conversion of the land from
leasehold to freehold; and there was no provision for any such conversion
in the allotment letters or the lease deeds. Apart from this, a letter dated
14.01.2016 sent by the Principal Secretary to the State Government to
UPSIDC has also been referred to stating that no transfer of the land
allotted to UPSIDC would be permitted except by lease.
11.3. Learned counsel for the respondents have also submitted
that the prevailing policy of UPSIDC and other industrial development
authorities of the State with respect to allotment or transfer of plots is on
leasehold basis. Given that
there has been no conversion of leasehold to
freehold as regards nearly 6000 allotments of land by UPSIDC in the
subject area, if the petitioner is granted this benefit, the other lessees
may also claim the same which would be highly prejudicial to the
Government, as also contrary to the rules and regulations of UPSIDC.
11.4. As regards other submissions on behalf of the petitioner for
allowing bipartite sub-leases, learned counsel for the respondent UPSIDC
has referred to the stipulation of the allotment letter dated 05.08.2006,
including clause 10 that in relation to the allottees of the petitioner, a
tripartite lease deed has to be executed with allottee of the developer to
be the lessee, UPSIDC to be the lessor and the developer to be a
confirming party. Further, clause 13 of the lease deeds dated 23.08.2006
and 30.03.2009 makes it clear that the lessee has to abide by the terms
and conditions of allotment, leaving no room of doubt that the subject
property is a leasehold property. It has also been submitted that the
petitioner never sought execution of tripartite lease deeds from UPSIDC,
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
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and the original suit filed by the petitioner, being CS No. 257 of 2018,
seeking declaration and permanent injunction against respondent No. 2
from enforcing clauses 3(e), (i) and (j) of the lease deed dated 23.08.2006,
remains pending before the Trial Court.
12. We have given anxious consideration to the rival submissions
and have perused the material placed on record.
13. As noticed hereinabove, a few contentions have been urged
in this matter on behalf of the petitioner as regards the questions relating
to the execution of sub-lease deed or against execution of tripartite sub-
lease deed and such contentions have been refuted/contested on behalf
of the respondents. We have only taken note of the rival contentions in
regard to these questions but, for the reason that these aspects are not
forming the part of principal prayer in T. C. (C) No. 82 of 2022 and even
other litigations remain pending, we would leave the same at that only
and for determination at the appropriate stage in the appropriate
proceedings.
14. The principal question arising for determination in the present
matter is whether the petitioner is entitled to seek conversion of the
subject land from leasehold to freehold in view of the policy formulated
by the respondent No. 1 State on 06.11.2013, as amended on 03.05.2016.
Having examined the matter in its totality, we are clearly of the view
that answer to this question could only be in the negative
for more than
one reason.
15. A comprehension of the factual aspects and the rival
submissions makes it clear that the entire case of the petitioner-company,
asserting its right to get the subject land converted from leasehold to
freehold, is premised on the policy formulated by the respondent No. 1
on 06.11.2013 and amended on 03.05.2016. The petitioner would assume
that the said policy with its amendment is applicable to its project and to
the subject land. This assumption is without any legal basis and the claim
of the petitioner turns out to be hollow and baseless because neither the
original policy formulated on 06.11.2013 nor its amendment on 03.05.2016
have any application to the subject land or to the project of the petitioner.
15.1. A look at the background aspects makes it clear that the
subject land was allotted to the petitioner on 05.08.2006 after acceptance
of its offer of allotment of the said industrial plot by UPSIDC. Clause
14(a) of the allotment letter dated 05.08.2006 had been clear and
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unequivocal that land was allotted on 90 years lease basis. Further, it
was provided in clause 10(b) of the allotment letter that tripartite lease
deed of the built-up premises would be executed where the allottee of
the developer shall be the lessee; UPSIDC shall be the lessor; and the
developer (the petitioner) shall be a confirming party. The lease deed
dated 23.08.2006 in relation to 37208 sq. mtrs. of the allotted land carried
the covenants, inter alia, that the lessee (the petitioner) will not, without
the consent of lessor (UPSIDC), transfer, sublet, relinquish, mortgage
or assign its interest in the demised premises or in the buildings standing
thereon with the other requirements [vide clause 3 (j)]. It was also
stipulated that the allottee shall have to abide by the general terms and
conditions of allotment of UPSIDC [vide clause 13]. It appears that in
this lease deed dated 23.08.2006, the stipulation regarding tripartite lease
deed did not as such occur but the said clause 13 made all the general
conditions of allotment binding on the petitioner. Moreover, in the other
lease deed dated 30.03.2009 in relation to the adjacent plot of land, this
stipulation was also inserted in clause 3(j). We are not entering into the
questions relating to tripartite lease deed in this matter but, this much is
apparent on a comprehensive look at the terms of allotment and the
covenants of lease deeds that the land was allotted to the petitioner on
90 years lease
basis and further treatment of land and built-up portion
thereupon were to abide by those terms and covenants. It is also clear
that possession of the entire parcel of land comprising the aforesaid two
lease deeds, i.e., 40505 sq. mtrs., was handed over to petitioner on
31.03.2009 and on 08.10.2009, the building plan for construction over
the aforesaid allotted land was sanctioned by respondent No. 2
whereafter construction over an area of 179017.82 sq. mtrs. was
completed by the petitioner for which, a partial completion certificate
was issued by respondent No. 2 on 07.05.2011. Until all this time, there
was nothing existing as regards the policy sought to be relied upon by
the petitioner.
15.2. The policy in question came up for the first time only on
06.11.2013 and it was formulated essentially for growth of tourism sector
in the State of Uttar Pradesh by setting up theme parks/amusement
parks. The aforesaid policy dated 06.11.2013 laid down conditions and
incentives, including exemption from stamp duty, exemption from tax on
construction goods/materials imported into the State etc., which were
available to the theme parks/amusement parks with minimum area of
300 acres and minimum capital investment of Rs. 500 crores. Clause 3
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of the said policy, of course, provided that a theme park/amusement
park could be established and operated by private sector,public-private
partnership or any authority by creating special purpose vehicle and in
that situation all the decisions regarding assessment of the desired land,
selection of the private investor and implementation of the project were
to be taken by the concerned authority/government body/public
undertaking under its own rules but we are unable to find any correlation
whatsoever of this stipulation of the policy with the subject land that had
been given on lease to the petitioner as also with the project of the
petitioner which could never be termed as any theme park or amusement
park. Viewed in this light, the letter dated 31.01.2015 as sent by the
Managing Director of UPSIDC, recommending the case of the petitioner
to declare its multiplex, hotel and commercial construction as tourist
destination, turns out to be rather baseless and its accompanying
document, stating the demand of the petitioner to convert the land in
question to freehold, also appears to be wanting in logic. We shall deal
with this letter dated 31.01.2015 in a little more detail hereafter. Suffice
it to observe at this juncture that the project of the petitioner cannot be
correlated with this policy dated 06.11.2013, meant for theme park/
amusement park and that too with involvement of a Government body
or an instrumentality
of the Government in selection of the private investor
as also with participation by way of investment upto 20% of the cost of
the land.
15.3. As noticed, on 16.04.2015, respondent No. 2 issued second
completion certificate in respect of the project of the petitioner. Even
until this point of time, there was no amendment to the policy in question.
15.4. Now, switching over to the amendment of the policy in
question by way of Office Memo dated 03.05.2016, of course, the policy
to promote tourism was modified so as to grant certain other concessions
and was also expanded to include theme-based mall but then, such
broadening of the policy came with typical and peculiar stipulations. A
Committee was put in place for giving recommendations for permissions
in the matters related with theme-based mall. Significantly, clause 4 of
the original policy was modified in the manner that for theme-based
mall, the limit of partnership of public enterprise/company of the State
Government was changed from 20% of the maximum cost of land to
minimum 20% of cost of land; and it was provided that the working
agency will provide freehold to the SPV after acquiring the land as per
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the rules, for which freehold charge will be payable. These stipulations
occurring in the said Office Memo dated 03.05.2016 make it more than
clear that as regards theme-based mall a minimum of 20% of the
partnership of the State Government or its instrumentality was stipulated;
and such instrumentality of the State Government was also referred to
as the working agency, which was to provide freehold land to the SPV
to be created for the purpose. The petitioner seems to have developed a
mall on the subject land and, as per the suggestions made in the referred
communications, seems to have provided certain facilities to make it
attractive but fact of the matter remains that the project has been
implemented by the petitioner through private investment and there is no
participation of the State Government or any public sector undertaking
or any instrumentality of the State therein. That being the position, claim
of the petitioner to seek benefits flowing from the Office Memo dated
03.05.2016 falls flat and is knocked to the ground.
15.4.1. It is also noteworthy that no SPV has been created in
relation to the project of the petitioner with involvement of the State
Government or any of its agencies/instrumentalities. Which particular
agency is, then, to be termed as “working agency” for the purpose of
the Office Memo dated 03.05.2016 remains a question inexplicable. If
the stretch of arguments of the petitioner seeking freehold land is taken
into
consideration, only UPSIDC could be termed as “working agency”
for the present purpose but then, there is no partnership of UPSIDC in
this project.
15.5. Apart from the above, it is also noteworthy that the subject
land was specifically leased to the petitioner for a period of 90 years in
terms of the allotment letter dated 05.08.2006 and then lease deeds were
executed on 23.08.2006 and 30.03.2009. The construction was
undertaken by the petitioner over part of the land in question where
partial completion certificate was issued on 07.05.2011 and second
completion certificate was issued on 16.04.2015. Several significant
consequences follow from this status of record. In the first place, when
the land had already been leased to the petitioner and the petitioner is
also holding the same as lessee under the lease deeds executed for the
purpose, there does not appear any reason, justification, logic or rationale
that such leasehold rights be converted into freehold rights. Secondly,
the amended policy which is sought to be relied upon by the petitioner
came into existence only after second completion certificate had been
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issued to the petitioner and, as per the petitioner’s own assertions, the
mall had been put into operation. We are unable to find any stipulation in
the original policy or its amendment that it could be applied with
retrospective effect and to override the existing legal rights as also the
existing legal obligations.
15.6. Viewed from any angle, even on direct construction of the
relevant clauses vis-à-vis the subject-matter of the present petition, it
remains beyond a shadow of doubt that the policy in question with its
amendment is of no application whatsoever in relation to the project in
question. Therefore, the claim of the petitioner has rightly been rejected.
16. In relation to the relied upon letter dated 31.01.2015 sent by
the Managing Director of UPSIDC, recommending the case of the
petitioner to declare its multiplex, hotel and commercial construction as
tourist destination, as observed hereinabove, the same had been wholly
baseless and rather unwarranted. Its accompanying document carrying
the demands of the petitioner for various grants and exemptions as also
for converting the subject land to freehold was also without any legal
basis. As noticed, at the relevant point of time, the policy in question only
related to theme parks/amusement parks and it is difficult to see even a
logic that the said Managing Director chose to forward the proposition
of the petitioner for consideration of the State Cabinet.
In any case, the
said letter dated 31.01.2015 was only recommendatory in nature; and
even the recommendation had only been to declare the places as tourist
destination and to give exemption. The Managing Director of UPSIDC
could neither have recommended for converting the land to freehold nor
did he do so. The said letter is of no relevance whatsoever.
17. Strong reliance, however, has been placed on behalf of the
petitioner on the letter/communication dated 16.09.2016, which had been
a communication received by the petitioner from the Director General
Tourism. The petitioner has described this letter as one of “approval”
and has framed the relief in the writ petition on that basis. During the
course of submissions too, substantial reliance has been placed on this
letter/communication dated 16.09.2016 and the same has been termed
as a letter of “approval/qualification.” As would appear from the record,
the petitioner addressed various communications on 12.12.2016,
30.05.2017 and 19.02.2018 to UPSIDC while asserting that the mall in
question had already been declared as theme-based mall and the
petitioner-company is entitled to get the subject land converted from
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leasehold to freehold. Learned counsel for the petitioner has highlighted
the composition of Committee that had made the recommendation and
submitted that when the high-ranking officers including Principal
Secretaries of Tourism Department, Cultural Department, and Housing
and Town Planning Department of the State Government had been the
members of this Committee, its recommendations partake the character
of approval/qualification and cannot be ignored. The assertions of the
petitioner and the submissions made in that behalf carry their own
shortcomings.
17.1. Whatsoever had been the composition of the Committee, it
could have only made recommendation for final decision by the competent
authority. Merely for presence of the Principal Secretaries of the
Departments concerned in the Committee, it cannot be held that its
recommendation itself would become a binding decision. Moreover, a
close look at the said communication dated 16.09.2016 makes it evident
that even the recommendation had only been to approve the proposal
‘as a theme-based mall.’ It is too far-stretched to read this communication
as if the Committee had recommended for grant of freehold rights. As
noticed, providing freehold land for the purpose of setting up a theme-
based mall had entirely different requirements and had been of entirely
different connotations under the amendment Memo dated 03.05.2016.
17.2. It is also noticed that in composition of the said Committee,
there was no
representative of the agency/instrumentality directly
concerned with the subject land i.e., UPSIDC. Any suggestion or
recommendation in relation to the subject land as also the lease deeds
already executed between the petitioner-company and UPSIDC could
not have been made without taking into account the stand of UPSIDC.
Noteworthy it is that after passing of orders dated 20.10.2021 and
13.12.2021 by this Court in W.P. (Crl.) 242 of 2019, the matter was
indeed examined by the Industrial Development Section-4 of the
Government of Uttar Pradesh where the director of the petitioner-
company was afforded the opportunity of personal hearing on 19.01.2022
through video conferencing and his further representation sent through
email on 21.01.2022 was also taken into consideration while passing the
impugned order dated 24.01.2022.
18. For what has been discussed hereinabove, we are satisfied
that the policy in question cannot be applied in relation to the subject
land. Therefore, we find no necessity to delve further into the other
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issues raised on behalf of the respondent No. 2 that it has no policy to
grant freehold rights in its allotments. Suffice it would be to say for the
present purpose that the claim of the petitioner for freehold rights in
relation to the subject land cannot be accepted.
19. In an overall comprehension of the matter, we are satisfied
that the impugned order dated 24.01.2022, insofar as it relates to the
prayer of the petitioner for grant of freehold rights on the subject land,
does not suffer from any infirmity and calls for no interference for the
basic reason that the policy in question cannot be applied in relation to
the subject land and, in any case, prayer of the petitioner for grant of
freehold rights cannot be granted contrary to the terms of allotment and
covenants of lease deeds.
20. In view of the above and subject to the observations foregoing,
writ petition filed by the petitioner-company [Writ Petition No. 3790 of
2022 in the High Court - T. C. (C) No. 82 of 2022 in this Court] is
dismissed; and the first prayer in Crl. M.P. No. 99514 of 2021 in W.P.
(Crl.) No. 242 of 2019, as regards directions for converting the subject
land from leasehold to freehold, is also rejected. However, we make it
clear that this judgment shall otherwise be of no bearing on the other
issues pending or arising between the parties. In other words, this
judgment shall be relevant only to the extent of rejection of the prayer of
the petitioner-company for converting the subject land from leasehold to
freehold and not beyond.
20.1. There shall be no order as to costs.
21. All pending applications relating to T. C. (C) No. 82 of 2022
also stand disposed of, accordingly.
Nidhi Jain
Matters disposed of.
(Assisted by : Vinayak and Rakhi, LCRAs)