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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFERRED CASE (CIVIL) NO. 82 OF 2022

BHASIN INFOTECH AND

INFRASTRUCTURE PRIVATE LTD. ….PETITIONER(S)

VERSUS

STATE OF UTTAR PRADESH AND ANR. ….RESPONDENT (S)

JUDGMENT

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.

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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

follows

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:

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 area 37500 sq. mtrs.

came to be accepted by the Uttar Pradesh State Industrial Development

Corporation

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-

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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: -

“ **** **** ****

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 De ed 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.

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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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‘UPSIDC’, for short.

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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 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.

**** **** ****

14.(a) The land is allotted on 90 years lease basis which has to be

specified to its tenants/Co./Owners

(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.

**** **** ****”

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 T HE

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.

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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.

**** **** ****

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. 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,

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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: -

“3. AND THE LESSEE DOTH THEREBY COVENANTS WITH THE

LESSOR AS UNDER:

**** **** ****

(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

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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 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 due consideration, 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 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 Plan Notified Area, for

which there will be UPSIDC Regulatory Authority.

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(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.

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

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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 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

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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

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

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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 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.

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(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.

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

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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 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.

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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 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

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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.

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

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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.

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

17

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

18

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.

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-

19

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 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

20

any authority by creating an APV. In such 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.

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 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

21

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 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

22

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 22

nd

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 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,

23

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

24

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 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.

25

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-based

26

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

27

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 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

28

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

29

Floor Area Ratio

4

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.

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

4

‘FAR’ for short.

30

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, 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

31

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

32

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 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

33

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

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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 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

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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 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

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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

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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. 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

38

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 leasehold to freehold.

Learned counsel for the petitioner has highlighted the composition of

Committee that had made the recommendation and submitted that when

39

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

40

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 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.

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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.

……....……………………. J.

(DINESH MAHESHWARI)

……....……………………. J.

(J.K. MAHESHWARI)

NEW DELHI;

MARCH 17, 2023.