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. came to be accepted by the Uttar Pradesh State Industrial Development Corporation – 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.
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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 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. and lease deed was executed in favour of the petitioner on 23.08.2006 with reference to this actual measurement. (a) The Allottee shall have to get building approved from UPSIDC Ltd. 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.
(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. 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. 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. 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 State I Central Government or its owned, council, company, institution 100% exemption in stamp duty will be given on taking it. 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. (a) Under the theme park I amusement 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. 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. 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 park I amusement park.
Possibly the level of the above decision will be of the State Cabinet, so the necessary material is being enclosed for the cabinet note. 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. An attempt has been made by the developer to 10 embellish the grandeur and elegance of the famous Italian city of Venice in The Grand Venice. 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. 500.00 crore in the tourism sector in this project, so a demand for a grant of 5 percent interest has been made. 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. 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. 12 (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. 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. 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 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. 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.
Thereafter, in the order dated 20.08.2020, willingness of the said petitioner was recorded to 15 offer possession as also to facilitate execution of necessary agreement/sub-lease in favour of the complainants. 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 16 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. 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. 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. 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. 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.
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. 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. 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.
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. 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. 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. Apart from this, the lease deed executed on 30.03.2009 mentions the execution of tripartite sub- lease deed. 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. 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. 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. 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. Nadkarni, 23 learned senior counsel for respondent
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No 2 in relation to this transferred case, T. 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. 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. 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. 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.
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 “t heme-based mall” and also recognising that the petitioner would be entitled to the benefits ensuing from the Memo dated 03.05.2016. 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. 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.
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. 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. 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.
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. 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. 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.
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. 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. 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 34 theme parks/amusement parks with minimum area of 300 acres and minimum capital investment of Rs. 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. 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. 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. 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.
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. Viewed from any angle, even on direct construction of the relevant clauses vis–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. 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. 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. 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. 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. (C)
No 82 of 2022 in this Court] is dismissed; and the first prayer in Crl. (Crl.)
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No 242 of 2019, as regards directions for converting the subject land from leasehold to freehold, is also rejected.
There shall be no order as to costs.
Case Title: BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD. Vs. THE STATE OF UTTAR PRADESH (2023 INSC 260)
Case Number: T.C.(C) No.-000082 / 2022
