BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD. versus STATE OF UTTAR PRADESH AND ANR. on 17 March 2023

BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.

v.

STATE OF UTTAR PRADESH AND ANR.

(Transferred Case (Civil) No. 82 of 2022)

MARCH 17, 2023

[DINESH MAHESHWARI AND J. K. MAHESHWARI, JJ.]

Lease: Conversion of land from leasehold to freehold in viewof policy formulated by the State – Entitlement to – On facts,allotment of commercial plots to the petitioner company by the StateIndustrial Development Corporation-UPSIDC, land allotted on 90years lease basis – Building plan for construction over allottedland sanctioned – Construction completed and issuance of partialcompletion certificate – Thereafter, policy formulated by therespondent no. 1 for growth of tourism by setting up theme/amusements parks – Policy laid down conditions and incentives,available to theme parks – Thereafter, proposal by the petitionerfor recognition of its project as a theme based mall – Petitionerthen sought conversion of the subject land from leasehold tofreehold – Non-acceptance of the proposal of the petitioner toconvert subject land from leasehold to freehold as per the policyformulated and thereafter amended – Challenge to – Held: Whenthe land had already been leased to the petitioner and the petitioneris also holding the same as lessee under the lease deeds executedfor the purpose, no reason, justification, logic or rationale thatsuch leasehold rights be converted into freehold rights – Amendedpolicy relied upon by the petitioner came into existence only aftersecond completion certificate had been issued to the petitioner and,the mall had been put into operation – No stipulation found in theoriginal policy or its amendment that it could be applied withretrospective effect and to override the existing legal rights as alsothe existing legal obligations - Policy in question with its amendmentis of no application whatsoever in relation to the subject land andthe project – Thus, the claim of the petitioner for freehold rights inrelation to the subject land cannot be accepted – Furthermore, thepetitioner seems to have developed a mall on the subject land throughprivate investment and there is no participation of the State

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AGovernment or any public sector undertaking or any instrumentalityof the State therein – Thus, the claim of the petitioner to seek benefitsflowing from the Office Memo is struck down.

Disposing of the matters, the Court

HELD: 1.1 The entire case of the petitioner-company,Basserting its right to get the subject land converted from leaseholdto freehold, is premised on the policy formulated by therespondent No. 1 on 06.11.2013 and amended on 03.05.2016.The petitioner would assume that the said policy with itsamendment is applicable to its project and to the subject land.CThis assumption is without any legal basis and the claim of thepetitioner turns out to be hollow and baseless because neitherthe original policy formulated on 06.11.2013 nor its amendmenton 03.05.2016 have any application to the subject land or to theproject of the petitioner. [Para 15][1088-F-G]

D1.2. The subject land was allotted to the petitioner on05.08.2006 after acceptance of its offer of allotment of the saidindustrial plot by UPSIDC. Clause 14(a) of the allotment letterdated 05.08.2006 had been clear and unequivocal that land wasallotted on 90 years lease basis. Further, it was provided in clause10(b) of the allotment letter that tripartite lease deed of the built-Eup premises would be executed where the allottee of thedeveloper shall be the lessee; UPSIDC shall be the lessor; andthe developer (the petitioner) shall be a confirming party. Thelease deed dated 23.08.2006 in relation to 37208 sq. mtrs. of theallotted land carried the covenants, inter alia, that the lessee (theFpetitioner) will not, without the consent of lessor (UPSIDC),transfer, sublet, relinquish, mortgage or assign its interest in thedemised premises or in the buildings standing thereon with theother requirements [vide clause 3 (j)]. It was also stipulated thatthe allottee shall have to abide by the general terms and conditionsof allotment of UPSIDC [vide clause 13]. It appears that in thisGlease deed dated 23.08.2006, the stipulation regarding tripartitelease deed did not as such occur but the said clause 13 made allthe general conditions of allotment binding on the petitioner.Moreover, in the other lease deed dated 30.03.2009 in relationto the adjacent plot of land, this stipulation was also inserted in H

clause 3(j). The Court is not entering into the questions relatingto tripartite lease deed in this matter but, this much is apparenton a comprehensive look at the terms of allotment and thecovenants of lease deeds that the land was allotted to the petitioneron 90 years lease basis and further treatment of land and built-upportion thereupon were to abide by those terms and covenants.It is also clear that possession of the entire parcel of landcomprising 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 landwas sanctioned by respondent No. 2 whereafter construction overan area of 179017.82 sq. mtrs. was completed by the petitionerfor which, a partial completion certificate was issued byrespondent No. 2 on 07.05.2011. Until all this time, there wasnothing existing as regards the policy sought to be relied uponby the petitioner. [Para 15.1][1088-H; 1089-A-F]

1.3. The policy in question came up for the first time onlyon 06.11.2013 and it was formulated essentially for growth oftourism sector in the State of Uttar Pradesh by setting up themeparks/amusement parks. The said policy dated 06.11.2013 laiddown conditions and incentives, including exemption from stampduty, exemption from tax on construction goods/materialsimported into the State etc., which were available to the themeparks/amusement parks with minimum area of 300 acres andminimum capital investment of Rs. 500 crores. Clause 3 of thesaid policy, of course, provided that a theme park/amusementpark could be established and operated by private sector, public-private partnership or any authority by creating special purposevehicle and in that situation all the decisions regardingassessment of the desired land, selection of the private investorand implementation of the project were to be taken by theconcerned authority/government body/public undertaking underits own rules but the Court is unable to find any correlationwhatsoever of this stipulation of the policy with the subject landthat had been given on lease to the petitioner as also with theproject of the petitioner which could never be termed as anytheme park or amusement park. Viewed in this light, the letterdated 31.01.2015 as sent by the Managing Director of UPSIDC, AB

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Arecommending the case of the petitioner to declare its multiplex,hotel and commercial construction as tourist destination, turnsout to be rather baseless and its accompanying document, statingthe demand of the petitioner to convert the land in question tofreehold, also appears to be wanting in logic. The project of thepetitioner cannot be correlated with this policy dated 06.11.2013,Bmeant for theme park/amusement park and that too withinvolvement of a Government body or an instrumentality of theGovernment in selection of the private investor as also withparticipation by way of investment upto 20% of the cost of theland. [Para 15.2][1083-G-H; 1090-A-E]

C1.4. On 16.04.2015, respondent No. 2 issued secondcompletion certificate in respect of the project of the petitioner.Even until this point of time, there was no amendment to thepolicy in question. As regards the amendment of the policy inquestion by way of Office Memo dated 03.05.2016, of course, theDpolicy to promote tourism was modified so as to grant certainother concessions and was also expanded to include theme-basedmall but then, such broadening of the policy came with typicaland peculiar stipulations. A Committee was put in place for givingrecommendations for permissions in the matters related withtheme-based mall. Significantly, clause 4 of the original policyEwas modified in the manner that for theme-based mall, the limitof partnership of public enterprise/company of the StateGovernment was changed from 20% of the maximum cost of landto minimum 20% of cost of land; and it was provided that theworking agency will provide freehold to the SPV after acquiringFthe land as per the rules, for which freehold charge will be payable.These stipulations occurring in the said Office Memo dated03.05.2016 make it more than clear that as regards theme-basedmall a minimum of 20% of the partnership of the State Governmentor its instrumentality was stipulated; and such instrumentality of the State Government was also referred to as the working agency,Gwhich was to provide freehold land to the SPV to be created forthe purpose. The petitioner seems to have developed a mall onthe subject land and, as per the suggestions made in the referredcommunications, seems to have provided certain facilities to makeit attractive but fact of the matter remains that the project hasH

been implemented by the petitioner through private investmentand there is no participation of the State Government or any publicsector undertaking or any instrumentality of the State therein.That being the position, claim of the petitioner to seek benefitsflowing from the Office Memo dated 03.05.2016 falls flat and isknocked to the ground. [Para 15.3 & 15.4][1090-E-H; 1091-A-C]

1.5. No SPV has been created in relation to the project ofthe petitioner with involvement of the State Government or anyof its agencies/instrumentalities. Which particular agency is, then,to be termed as “working agency” for the purpose of the OfficeMemo dated 03.05.2016 remains a question inexplicable. If thestretch of arguments of the petitioner seeking freehold land istaken into consideration, only UPSIDC could be termed as“working agency” for the present purpose but then, there is nopartnership of UPSIDC in this project. [Para 15.4.1][1091-D-E]

1.6. The subject land was specifically leased to the petitionerfor a period of 90 years in terms of the allotment letter dated05.08.2006 and then lease deeds were executed on 23.08.2006and 30.03.2009. The construction was undertaken by thepetitioner over part of the land in question where partialcompletion certificate was issued on 07.05.2011 and secondcompletion certificate was issued on 16.04.2015. Severalsignificant consequences follow from this status of record. In thefirst place, when the land had already been leased to the petitionerand the petitioner is also holding the same as lessee under thelease deeds executed for the purpose, there does not appear anyreason, justification, logic or rationale that such leasehold rightsbe converted into freehold rights. Secondly, the amended policywhich is sought to be relied upon by the petitioner came intoexistence only after second completion certificate had been issuedto the petitioner and, as per the petitioner’s own assertions, themall had been put into operation. No stipulation is found in theoriginal policy or its amendment that it could be applied withretrospective effect and to override the existing legal rights asalso the existing legal obligations. [Para 15.5][1091-F-H; 1092-A]

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A1.7 Viewed from any angle, even on direct construction ofthe relevant clauses vis-à-vis the subject-matter of the presentpetition, it remains beyond a shadow of doubt that the policy inquestion with its amendment is of no application whatsoever inrelation to the project in question. Therefore, the claim of thepetitioner has rightly been rejected. [Para 15.6][1092-B-C]B

1.8. In relation to the relied upon letter dated 31.01.2015sent by the Managing Director of UPSIDC, recommending thecase of the petitioner to declare its multiplex, hotel andcommercial construction as tourist destination, the same had beenwholly baseless and rather unwarranted. Its accompanyingCdocument carrying the demands of the petitioner for variousgrants and exemptions as also for converting the subject land tofreehold was also without any legal basis. At the relevant point oftime, the policy in question only related to theme parks/amusement parks and it is difficult to see even a logic that theDsaid Managing Director chose to forward the proposition of thepetitioner for consideration of the State Cabinet. In any case, thesaid letter dated 31.01.2015 was only recommendatory in nature;and even the recommendation had only been to declare the placesas tourist destination and to give exemption. The ManagingDirector of UPSIDC could neither have recommended forEconverting the land to freehold nor did he do so. The said letteris of no relevance whatsoever. [Para 16][1092-C-F]

1.9. The letter/communication dated 16.09.2016, which hadbeen a communication received by the petitioner from theDirector General Tourism. The petitioner has described this letterFas one of “approval” and has framed the relief in the writ petitionon that basis. During the course of submissions too, substantialreliance has been placed on this letter/communication dated16.09.2016 and the same has been termed as a letter of “approval/qualification.” As would appear from the record, the petitionerGaddressed various communications on 12.12.2016, 30.05.2017and 19.02.2018 to UPSIDC while asserting that the mall inquestion had already been declared as theme-based mall and thepetitioner-company is entitled to get the subject land convertedfrom leasehold to freehold. [Para 17][1092-F-H]

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BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.v. STATE OF UTTAR PRADESH

1.10. Whatsoever had been the composition of theCommittee, it could have only made recommendation for finaldecision by the competent authority. Merely for presence of thePrincipal Secretaries of the Departments concerned in theCommittee, it cannot be held that its recommendation itself wouldbecome a binding decision. Moreover, a close look at the saidcommunication dated 16.09.2016 makes it evident that even therecommendation had only been to approve the proposal ‘as atheme-based mall.’ It is too far-stretched to read thiscommunication as if the Committee had recommended for grantof freehold rights. Providing freehold land for the purpose ofsetting up a theme-based mall had entirely different requirementsand had been of entirely different connotations under theamendment Memo dated 03.05.2016. In composition of the saidCommittee, there was no representative of the agency/instrumentality directly concerned with the subject land i.e.,UPSIDC. Any suggestion or recommendation in relation to thesubject land as also the lease deeds already executed betweenthe petitioner-company and UPSIDC could not have been madewithout taking into account the stand of UPSIDC. After passingof 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 theIndustrial Development Section-4 of the Government of UttarPradesh where the director of the petitioner-company wasafforded the opportunity of personal hearing on 19.01.2022through video conferencing and his further representation sentthrough email on 21.01.2022 was also taken into considerationwhile passing the impugned order dated 24.01.2022. [Para 17.1& 17.2][1093-C-G]

1.11. Viewed from any angle, even on direct constructionof the relevant clauses vis-à-vis the subject-matter of the presentpetition, it remains beyond a shadow of doubt that the policy inquestion with its amendment is of no application whatsoever inrelation to the project in question. Therefore, the claim of thepetitioner has rightly been rejected. The policy in question cannotbe applied in relation to the subject land. Therefore, there is nonecessity to delve further into the other issues raised on behalfof the respondent No. 2 that it has no policy to grant freehold AB

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Arights in its allotments. Suffice it would be to say for the presentpurpose that the claim of the petitioner for freehold rights inrelation to the subject land cannot be accepted. [Para 15.6 and18][1092-B-C; 1093-H; 1094-A-B]

1.12 The writ petition filed by the petitioner-company inBthe High Court is dismissed; and the first prayer in Crl. M.P. asregards directions for converting the subject land from leasehold to freehold, is also rejected. [Para 20][1094-D]

CIVIL ORIGINAL JURISDICTION: Transferred Case (Civil)No. 82 of 2022.

CCivil Miscellaneous Writ Petition No.3790 of 2022 in the HighCourt of Judicature at Allahabad.

Shyam Divan, Sr. Adv., Vishal Gosain, Viresh B. Saharya, AkshatAgarwal, Ms. Rudrani Tyagi, P. Sharma, Manoj K. Mishra, MareeshPravir Sahay, Advs. for the Petitioner.D

K. M. Nataraj, ASG, Vinod Diwakar, AAG, A N S Nadkarni, RaviMehrotra, Ms. Meenakshi Arora, Devdutt Kamath, Sr. Advs., ChiragM. Shroff, Apoorv Srivastava, Ms. Ruchira Gupta, Ms. N. Shah, Ms.Deepti Arya, Ms. Harshita Sharma, Jogy Scaria, Garvesh Kabra, B. N.Dubey, Dhawan Uniyal, Ms. Ranjana Narayana, Rajan Kumar Chourasia,EMohammed Akhil, Shailesh Madhiyal, Sughosh Subramanyam, NakulChengappa K. K., Arvind Kumar Sharma, Suryajyoti Singh Paul, RohitSingh, Gopal Jha, Gopal Prasad, Parijat Kishore, Guntur Pramod Kumar,Prem Prakash, Arjun Nanda, Sumeer Sodhi, Ravinder Kumar Yadav,Ms. Shuchi Singh, Krishna Kant Dubey, Vivek Kumar Pandey, RakeshFKumar Tewari, Sanjay Kumar Dubey, Binod Kumar Singh, Aman Kumar,Ms. Nidhi, Sarthak Arora, Mohit Girdhar, Shree Pal Singh, Ms. BasuriSwaraj, Amit Sharma, Varun Chopra, Sriram Parakkat, Vishnu Sankar,Ms. Athira Nair, Aditya Santhosh, M/s Lawfic, Gaurav Sharma, AvinashSharma, Abhinav Jain, Ms. Preeja Nair, Prakash Chandra Sharma,Rajeev Singh, Manoj K. Mishra, M/s. V. Maheshwari & Co., SanjayGKumar Tyagi, Hitesh Kumar Sharma, S. K. Rajora, Akhileshwar Jha,Ms. Kavya S. Lokande, Ms. Niharika Dewivedi, Narendra Pal Sharma,C. M. Jha, Ms. Manju Jetley, Mrs. Swarupama Chaturvedi, Varun K.Chopra, M/s. Vkc Law Offices, Dr. Monika Gusain, S. K. Verma, VishalPrasad, Shree Prakash Sinha, Rakesh Mishra, Ms. Mohua Sinha, H

Nawalendra Kumar, Rishabh Gupta, Shekhar Kumar, HimanshuBhushan, J. B. Pathak, Kumar Mihir, Ms. Garima Bajaj, RaghavendraMohan Bajaj, Vivek Narayan Sharma, Mohit D. Ram, Anish R. Shah,Krishnamohan K., Advs. for the Respondents.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.

1. In this transferred case, registered on withdrawal of a writpetition filed by the petitioner in the High Court of Judicature at Allahabad(Writ Petition No. 3790 of 2022) to this Court, the petitioner-companyhas challenged the order dated 24.01.2022 issued by respondent No. 1in not accepting its proposal to convert the subject land from leaseholdto freehold as per the policy formulated on 06.11.2013 and amended on03.05.2016.

2. In the writ petition so filed in the High Court and transferred tothis Court, the petitioner has sought the reliefs in the following terms: - “a. Issue a writ, order or direction in the nature of certiorari quashingthe impugned order dated 24.01.2022 passed by Respondent No.1(Annexure-11) to the writ petition and directing the RespondentNo.2 to grant freehold plot no. SH-3, Surajpur Site-IV in the lightof approval dated 16.09.2016 extending benefits of GovernmentOrders dated 06.11.2013 and 03.05.2016.

b. To pass such other and further order, which this Hon’ble courtmay 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 thiswrit petition and its transfer to this Court could be taken into comprehensionas follows[1]:

3.1. On 05.08.2006, the petitioner-company’s offer (bid) forallotment of commercial Plot No. SH-3 in Industrial Area Site-IV,Surajpur, District Gautam Budh Nagar, Uttar Pradesh with approximate 1 The extractions herein are essentially taken from IA No. 15392 of 2022 and IA No.156279 of 2022 filed by the petitioner for placing on record the English translation ofthe documents sought to be referred, as also from the documents filed with the writpetition.

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Aarea 37500 sq. mtrs. came to be accepted by the Uttar Pradesh StateIndustrial Development Corporation[2]-[3] and, accordingly, the allotmentletter was issued in favour of the petitioner stating the terms and conditionsof this allotment, including that the land was being allotted on 90 yearslease basis. A few relevant stipulations in this allotment letter dated05.08.2006 read as under: -B

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9. The Possession of Land will be handed over/delivered to youafter payment of 25% of total amount (as per bid) and afterExecution of Lease Deed with the Corporation. The allottee/CDeveloper will have to take possession after execution of leasedeed within three months from the date of allotment letter failingwhich plot is liable to cancelled.

10. a.The allottee shall have the right to sell of the builtup portion to any person for its choice for firstDsuch transfer no levy shall be charged by UPSIDC.

b.The triparite Lease Deed of the built-up premisesshall be executed by UPSIDC Ltd., with theultimate allottees of Developer on the request ofthe developer in writing.

EIn Triparite lease deed, the allottee of developershall be the lessee, the UPSIDC Ltd., will be thelesser and the developer shall be a confirming party.The UPSIDC will be transferring the proportionateundelivered interest in the land while the developerFwill be transferring the interest in the built-up space.

c.The Lease Deed of a built-up space will beexecuted only after the corporation has givencompletion certificate. For that built up space.

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14. (a)The land is allotted on 90 years lease basis whichhas to be specified to its tenants/Co./Owners 2 ‘UPSIDC’, for short.

3 This Corporation is now known as Uttar Pradesh State Industrial DevelopmentAuthority (‘UPSIDA’, for short) and is impleaded as respondent No.2 as such. However,Hfor continuity of discussion herein, respondent No. 2 is also referred to as ‘UPSIDC’.

(b) The Lease Deed will be executed by theAcorporation directly with the various persons onthe recommendation made by you without anytransfer charges. On the subsequent transfer ofthe premises/plot, levy as per the prevailing rulesof the corporation at that time will be charged.B**** ********

3.2. It appears that the actual measurement of the land so allottedstood at 37208 sq. mtrs. and lease deed was executed in favour of thepetitioner on 23.08.2006 with reference to this actual measurement. Afew relevant clauses of this lease deed dated 23.08.2006 could be usefullyreproduced as under: - C

“3. AND THE LESSEE DOTH HEREBY COVENANTS WITHTHE LESSOR AS UNDER:

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(j) That the Lessee will not without the previous consent in writingof the Lessor, transfer, sublet, relinquish mortgage or assign itsinterest in the demised premises or buildings standing thereon orboth as a whole and every such-transfer, assignment, relinquishmentmortgage or subletting or both shall be subject to and the transfereesor assigns shall be bound by all the covenants and conditions hereincontained 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 thewhole of the demised premises or cause any sub-division thereofby metes and bound or otherwise.

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Provided that the joint possession or transfer of possession ofdemised premises or any part thereof by the Lessee shall bedeemed to be sub-letting for the purpose of this clause.

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8. (a)The Allottee shall have to get building approvedfrom UPSIDC Ltd. and development works haveto be undertaking as per approved plan.

(b) The FAR and ground coverage shall be allowedas per the rules and bye-laws of the UPSIDC Ltd.

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whose prior sanction on Building Plan shall besought by allottee at its own cost before makingany construction.

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(c) The land shall be allotted on “as it where it is”UPSIDC will not responsible for carrying out anydevelopment at any stage except existingdevelopment like Roads and Strom waterdrainage.

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(d) All works shall be completed in 05 years from thedate of allotment. Any further extension shall beas per terms decided by MD, UPSIDC.

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(e) The allottee will have to pay Lease Rent from thedate of Allotment.

9. The allottee shall have to right to sell of the built portion to anyperson for its choice for first such transfer no levy shall be chargedDby UPSIDC.

10. In case of any dispute between Corporation and Allottee/Developer, the decision of Managing Director, UPSIDC Ltd., shallbe final and binding on both the parties.

11. The Corporation will have no objection on the request madeEby Bidder Company for allowing them 1.8 FAR with 60%ground coverage subject to the approval of the same byUPSIDC Ltd.

12. The allottee shall obtain completion certificate from UPSIDC.

F13. Allottee will have to abide by general terms and conditions ofAllotment of UPSIDC and also to observe the laws & other rulesand regulation carry out any specific activity from appropriateGovt. bodies before undertaking such activities. Failure to do somay result in Cancellation of allotment of the whole plot or partthereof as UPSIDC deems fit. .……”

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3.3. In addition to the aforesaid allotted parcel of land, anotheradjacent plot admeasuring 3297 sq. mtrs. was also allotted in favour ofthe petitioner, and another lease deed for this additional parcel of landwas executed on 30.03.2009. The relevant clause of the said lease deedreads as under: -H

“3. AND THE LESSEE DOTH THEREBY COVENANTSWITH THE LESSOR AS UNDER:

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(j) (a) The allottee shall have the right to sell of the builtupportion to any person for its choice for first suchtransfer no levy shall be charged by UPSIDC.

(b) The triparite lease deed of the built-up premisesshall be executed by the UPSIDC LTD., with theultimate allottees of Developer on the request ofthe developer in writing.

In triparite lease deed, the allottee of developershall be the lessee, the UPSIDC Ltd., will be lessorand the developer shall be a confirming party. TheUPSIDC will be transferring the proportionateundelivered interest in the land while the developerwill be transferring the interest in the built-up space.

(c) The Lease Deed of the built-up space will beexecuted only after the corporation has givencompletion certificate. For that built up space.

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3.4. Thereafter, possession of the entire parcel of land comprisingthe aforesaid two lease deeds, i.e., 40505 sq. mtrs., was handed over topetitioner on 31.03.2009. Then, on 08.10.2009, respondent No. 2sanctioned the building plan for construction over the aforesaid allottedland and pursuant thereto, construction over an area of 179017.82 sq.mtrs. in respect of Basement -1, Basement -2, Ground Floor, First Floorand Second Floor was completed for which, a partial completion certificatewas issued by respondent No. 2 on 07.05.2011.

3.5. In the chronology of relevant events, it so happened that inthe year 2013, respondent No. 1 formulated a policy for growth of tourismsector in the State of Uttar Pradesh by setting up theme parks/amusementparks. The aforesaid policy dated 06.11.2013 laid down conditions andincentives, including exemption from stamp duty, exemption from tax onconstruction goods/materials imported into the State etc., which wereavailable to the theme parks/amusement parks with minimum area of300 acres and minimum capital investment of Rs. 500 crores. The said

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Apolicy of the respondent No. 1, essentially to promote tourism in theState, as spelt out in the communication dated 06.11.2013 from theSecretary concerned to all the Principal Secretaries and other officersof the Government of Uttar Pradesh, reads as under: - “Subject: To promote tourism in the state To decide theBpolicy for setting up theme park/amusement park etc.

Sir, tourism industry is not covered by the State’s Establishmentand Industrial Investment Policy-2012. In this sequence, I havebeen directed to say that in view of the need to set up an amusementpark in the state for the purpose of Encourage the Tourism, aCpolicy has been laid down for the establishment of theme park/amusement park etc. after dueconsideration, It has been decided.The above policy is as follows:

1. Theme Park I Amusement Park etc. will be set up under theUttar Pradesh Town Planning and Development Act, 1973 andvarious planning Acts in accordance with the prescribed procedurefor agricultural land use. For this, necessary provisionsIamendmentswill be made in the Zoning Regulations for the establishment oftheme parks I amusement parks in the proposed agricultural landuse in the master plans of the notified areas under various planningacts.

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2. Large projects like theme parks/amusement parks have highinitial capital investment and become profitable only after a longperiod of time and a large number of local people are employed insuch projects, so incentives are given to encourage such projects,decision has been taken. In the light of the above, the followingFincentives 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 CentralGovernment or its owned corporation, council, company, institution100% exemption in stamp duty will be given on taking it.

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(2) For the construction period or 10 years (whichever is less) forthe establishment of the project, 100% exemption will be given inthe tax on the construction goods/materials imported into the state.

(3) From the date of operation of the project, 100% exemption inentertainment 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 andin which the minimum capital investment is Rs. 500.00 crores.

3. Theme Park/Amusement Park can be established and operatedby private sector, PPP or any authority by creating an S.P.V. Insuch a situation, all the decisions regarding the assessment of thedesired land, the selection of the private investor and theimplementation of the project after the selection will be taken bythe concerned authority/government body/public undertaking underits own rules.

4. Participation in such a scheme can be done by any publicundertaking of the state government/S.P.V. or company. Thisparticipation will be limited to a maximum of 20 percent of thecost of the land required for the project of Theme Park/Amusement Park, which will continue till the completion of theproject. The concerned government body/establishment/ publicundertaking will spend its share capital (20 percent) as a partnerof SPV, first on land acquisition, so that the investor can be assuredof the availability of land. Only after that Capital investment willbe decided. After the completion of the project, the disinvestmentwill be done as per the pre-determined agreement.

5. Under the proposed theme parkIamusement park, all thedevelopment, display, buildings and activities, etc. will be basedon a central theme or theme, and depending on the theme, thereshould be different types of theme parks at different places. ThemeParkIAmusement Park will have a minimum area of 300 acresand can be established at such sites, where there is a facility ofaccess from major roads (such as national highways, expressways,etc.) and water supply, drainage, ‘solid waste disposal’ for theselected site. And proper arrangement of power supply should beavailable.

(a) Under the theme parkIamusement park, in addition to thebasic works related to the theme park, other activities suchas convention center, hotel, shopping complex, restaurant,film studio, multiplex, senior shop, workshop, accommodation A

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for employees etc. will be included. The permission for themeparkIamusement park will be normally payable in theproposed agricultural land use in the master plans of thenotified areas under various planning acts in the state, forwhich necessary provisionI amendment will be made in themaster plan, zoning regulations of urban areas and industrialareas. Theme ParkIAmusement Park can also beestablished in the agricultural area outside the MasterPlanNotified Area, for which there will be UPSIDCRegulatory Authority.

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(b) Under Theme ParkIAmusement Park, activities related toCtheme parkIentertainment will be allowed in minimum 75percent area, while mixed use (such as residential,commercial, institutional, community and public facilities,etc.) will be allowed on maximum 25 percent part. Theaverage FAR for the theme park is 0.5 over the entire planDarea. And 20 percent ground coverage will be admissible.

(c) DPR of Theme ParkIAmusement Park. And the integratedlayout plan will be approved by the concerned governmentagency. The internal and external development work of theproject will be done by the developer himself. In view ofthe above, development fee will not be payable by thedeveloper to the government agency.

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6. In the event of the implementation of the theme park projectbeing done through the process of PPP/SPV, application forapproval of the layout of the theme park project and building planFetc. 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 governmentpartner.

7. The said policy of theme park will be applicable in the entirestate. Development Authorities have been established under theGUttar Pradesh Town Planning and Development Act-1973 andUttar Pradesh Industrial Area Development Act-1976. Therefore,instructions will be issued to the subordinate developmentauthorities and public undertakings by the Housing and UrbanPlanning Department and the Department of Infrastructure andIndustrial Development to implement the policy of the above themeHparkIamusement park.

8. Hon’ble Chief Minister has been authorized to take necessarydecisions to implement the above proposed policy.”

3.6. In view of the aforesaid policy dated 06.11.2013, petitionermade a request to respondent No. 2 to recognise the project land astourist destination whereupon, the Managing Director of UPSIDC wrotea letter dated 31.01.2015 to Principal Secretary (Tourism), Governmentof Uttar Pradesh, recommending that the said project of the petitionerbe declared as tourist destination and be provided with necessaryexemption. It was further stated that probably, the final decision on thesubject shall be taken by the State Cabinet and hence, the necessarymaterial for its consideration was also enclosed. The said letter dated31.01.2015 reads as follows: - “Investment of about Rs. 800 crores by Bhasin Infotech &Infrastructure Pvt Ltd on Plot No. SH-2 of Surajpur Site-4 GreaterNoida, Industrial Area of Corporation while doing the constructionof 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 morethan Rs. 500 crores and employment availability and for thepurpose of promoting tourism and in order to make their projectrun smoothly, it is recommended to declare the place as a touristdestination, to give exemption to them. Possibly the level of theabove decision will be of the State Cabinet, so the necessarymaterial is being enclosed for the cabinet note.

Therefore, it is kindly requested to take necessary action on theabove.”

3.6.1. We may also take note of a document placed on recordwith IA No. 156279 of 2022, said to be the part of material sent with theaforesaid letter dated 31.01.2015. It seems to be the justification in makingthe recommendations aforesaid and reads as under: - “IN CONNECTION WITH DECLARING THE GRANDVENICE (GREATER NOIDA, GAUTAM BUDDHANAGAR) AS A TOURIST DESTINATION, A commercial plot allotted by Uttar Pradesh State IndustrialDevelopment Corporation to M/s Bhasin Infotech & InfrastructurePvt. Ltd. Multiplex, Commercial and Hotel has been constructed A

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by investing about Rs. 800.00 crores, which will provideemployment to about 5000 people. The Grand Venice is a verytimely and convenient place from the point of view of tourism.The Grand Venice has been developed by the developer to attractinternational and domestic tourists in such a way that its uniquearchitecture, entertainment and geography and community willbe the only place to visit. It is conveniently located near GreaterNoida Express Way and due to its special location, it will alsobecome a suitable destination for tourists going from Delhi to Agra.In this project, special care has been taken for educational tourismwhile presenting something to the tourists of all age groups andpreferences. An attempt has been made by the developer toembellish the grandeur and elegance of the famous Italian city ofVenice in The Grand Venice. This Venetian themed remotenesshub will prove to be a center of special attraction with stunningstructures and sculptures. A ride on the B

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Gondola in the water canals built inside Mall will provide a realexperience of doing the traditional Gondola fanciers walking alongthe beautiful waterways of the city of Venice. Similarly, throughMagic Sky, an attempt has been made to provide the experienceof walking under the virtual sky giving a glimpse of the environmentEand 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 artforms of ltaly have been presented. Along with this, the IndianSea world has also been displayed in an area of about 100000square feet and for the convenience of the tourists, the five-starFdeluxe Sheraton Hotel with 270 rooms has also been included inthis complex. Places have been identified for setting up ·of outletsto display the heritage and handicrafts of Uttar Pradesh, alongwith the above features, the project like promotion of tourism andproviding employment to 5000 people along with capital investmentGof more than 500 crore rupees. Special benefits such as taxexemption, grant, establishment of electric friendly metro station,freehold without fee and suggestions for setting up of outlets fordisplaying the heritage and handicrafts of Uttar Pradesh anddeclaring tourist places by the developer to operate as demand isbeing made. Under which H

Freehold: The plot has been allotted on lease by thecorporation. The developer has demanded convert this land tofreehold without any charges.

TAX Exemption: The developer of the Mall demandedexemption from entertainment tax and GST in this project whichis applicable to Hotel, Aquarium, Retail etc.

Grant The developer has invested more than Rs. 500.00 crorein the tourism sector in this project, so a demand for a grant of 5percent interest has been made.

Electricity: The developer has demanded to provide theadditional power required in the project without any load.

Metro Station: There has been a demand to extend theproposed Pari Chowk metro station to the project site by thedeveloper, whose distance is only 1.5 km.

Time Extension Fee: The developer has demanded to waiveoff the time extension fee charged by UPSIDC due to delay inthe project. It is recommended to accept the demands being madeby the developer due to the project being Ideal for benefits likeregional development, promotion of tourism and providing morenumber of jobs. As above, the proposal is placed before the CabinetCommittee for perusal and approval.”

3.7. Subsequently, on 16.04.2015, respondent No. 2 issued secondcompletion certificate in respect of the project of the petitioner.

3.8. Later, respondent No. 1 issued one Office Memo dated03.05.2016, making a few alterations in the aforesaid policy dated06.11.2013, including that theme-based mall was also included in theextensive scheme and UPSIDC was appointed as the nodal agency forimplementation of the policy in the State. However, various otherstipulations were also provided, which were significantly different thanthe stipulations in the original policy. The relevant contents of the saidOffice Memo dated 03.05.2016, useful for the present purpose, are asfollows: - “OFFICE MEMO

That with regard to promote the tourism, to increase the investmentof funds and in view of importance of the extensive schemes A

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related with the establishment of theme park/amusement park,the policy has been proclaimed for establishment of theme park/amusement park vide Office Memo No.3150/41-2013-37 Y0/2012dated 06.11.2013. For implementation of the abovesaid policy, forimplementation of theme park in Agra, UPSIDC has beennominated as Nodal Agency.

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2. That the following amendments are being made in Para No.2of the abovesaid extensive policy in view of relevant amendmentsfor successful implementation of the policy and proposedamendments vide Letter No.5257 /P.S.M.S./JAIN/2015 dated20.05.2015 of the Hotel and Restaurants Owners Association,Agra and vide Letter No.318-319, SIDC dated 02.12.2015 of theNodal Agency UPSIDC for further proceedings in the ThemePark in Agra:

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A(1) That hundred percent concession in stamp duty shall be keptas it is in respect of transfer of land related with the project eitherDpurchased or taken on lease from State/Central Government orfrom the Corporation, Council, Company under their ownership.

(2) That hundred percent concession will be provided for buildingmaterial/items imported in the state for 10 years or the constructionperiod (whichever is less) to be used for construction andEestablishment of the project.

(3) That hundred percent concession will be granted inentertainment tax for implementation of the project for 15 yearsfrom the date of operation of the project.

(4) That hundred percent concession will be provided in the facilitiesfor 15 years from the date of operation of the project.

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(5) Theme based Mall is also included in the extensive schemeand relaxation is given in respect of limitation of 300 Acres ofminimum land as mentioned in Para No.2 for the matter relatedwith the theme-based Mall. For giving recommendations to theGpermissions in the matter related with the theme-based Mall, aCommittee will be formed as follows in the leadership of thePrincipal Secretary, Tourism.

1. Principal Secretary/Secretary Tourism Department,President.

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v. STATE OF UTTAR PRADESH [DINESH MAHESHWARI, J.]

2. Principal Secretary/Secretary, Cultural Department,AMember.

3. Principal Secretary, Secretary, Housing and Town PlanningDepartment, Member.

4. Director General, Tourism, U.P., Member, Convener.

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5. Managing Director, U.P.S. Tourism DevelopmentCorporation Limited, Member.

B. That in Para No.4 of the extensive policy for above mentionedproject, the limit of partnership of public enterprise/SPB or companyof the State Government is changed from 20 percent of themaximum cost of land to minimum 20 percent of cost of landwhich is relevant for the project.

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C. That the working agency will impose amount of 1 percentcharge on the entire expenses (alongwith cost of land) while doingassessment of cost of the land for establishment of theme park.

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D. The working agency will provide freehold land to the S.P.V.after acquiring the land as per the rules, for which the freeholdcharge will be payable as per the rules.

E. That if the abovesaid project is implemented by any such publicenterprise which is covered under some other Act, then in thatevent the related terms and conditions mentioned in the said Actwill apply to the said project.

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3. That the Official Order No.3150/41-2013-37 /Y0/2012, dated06.11.2013 issued for the establishment of theme park/amusementpark shall be assumed amended till the abovesaid limits. The termsand conditions and contract mentioned in the above Official Ordershall remain as it is.”

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3.9. It appears that the petitioner, after taking note of theamendments so brought about to the original policy, put forward a proposalfor recognition of its project as a theme-based mall, and for benefits,under the said policy. The proposal so made by the petitioner was dulyconsidered by the Committee constituted in terms of the said amendmentMemo dated 03.05.2016 and recommendations were made for approvalof the petitioner’s proposal. Accordingly, a letter dated 16.09.2016 wassent by the Director General Tourism, Uttar Pradesh, Lucknow informing G

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Athe recommendation of the Committee. This letter/communication dated16.09.2016 reads as under: - “This is to inform you about the above subject that in relation toconstruction of Theme Based Mall, the committee constituted forgrant of permission under the policy promulgated by theBGovernment of Uttar Pradesh, Tourism Division, GovernmentOrder No- 56/2016/ 691/41- 2016 -337 Sa/15 dt 03-5-2016, aproposal was considered by the committee in their meetingconvened on 23.08.2016 under the chairmanship of PrincipalSecretary Tourism, Government of Uttar Pradesh.CIn the recommendation meeting, a recommendation has beenmade 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 petitionerDappears to have addressed various communications on 12.12.2016,30.05.2017 and 19.02.2018 to UPSIDC for conversion of the subjectland from leasehold to freehold but, all these communications were ofno avail.

5. In the backdrop of events as aforesaid, it shall now be appositeEto refer to the other writ petition pending in this Court, which has beenfiled by the director of petitioner-company, Satinder Singh Bhasin, beingW.P. (Crl.) 242 of 2019, and wherein the order came to be passed fortransfer of the present writ petition to this Court.

5.1. Shorn of unnecessary details, it appears that various personsFwere allotted commercial spaces in the mall and the commercial towerby the petitioner-company and its directors but, in due course of time,several FIRs were registered against them, alleging fraud, failure to giveassured returns, non-completion of project on time, and siphoning ofmoney and using it for advertising and procuring other projects. Theallegations in those FIRs and refutation thereof are not of much relevanceGfor the present purpose and do not require dilation herein.

5.2. The relevant aspect of the matter is that the petitioner ofW.P. (Crl.) No. 242 of 2019, director of the present petitioner-company,with reference to the position that several FIRs had been registered inthe State of Uttar Pradesh and NCT of Delhi, has made the prayer inH

the said writ petition, inter alia, for consolidation of investigation andtrial against him. While entertaining that writ petition, this Court, by theorder dated 06.11.2019, granted the concession of bail to the petitionerin relation to all the FIRs referred to in prayer clause (c) and concerningthe project “Grand Venice” in NCR. While laying down conditions forbail, this Court also expressed hope that the petitioner therein (directorof the present petitioner-company) shall be making all possible attemptsto settle the claims of complainants concerned. Again, by order dated24.01.2020, it was clarified that the parties were free to approach DelhiHigh Court Mediation Centre for resolution of disputes inter-se throughmediation process. Thereafter, in the order dated 20.08.2020, willingnessof the said petitioner was recorded to offer possession as also to facilitateexecution of necessary agreement/sub-lease in favour of thecomplainants.

5.3. Thereafter, an application (I.A. No. 124952 of 2021), cameto be filed in W.P. (Crl.) 242 of 2019 for cancellation of bail granted tothe said petitioner on the ground that he was not facilitating execution oftripartite agreement amongst the builder, unit buyers and UPSIDA. Duringthe course of consideration of the said application, this Court took noteof the submissions of learned counsel for the petitioner that theapprehension, which formed the basis for filing the application, could bedispelled by calling upon the State of Uttar Pradesh to decide the proposalfor converting the user of subject land to freehold, particularly when theCommittee concerned had already recommended so. In view of thesubmission so made and in the given set of circumstances, this Court,while observing that there was no reason to entertain the prayer forcancellation of bail, issued directions to the Secretary of the Departmentconcerned to take decision expeditiously on the pending proposal and tosubmit appropriate report in that behalf. The relevant part of the orderso passed by this Court on 20.10.2021 reads as under:

“This application (I.A. No.124952/2021), is filed for cancellationof bail granted by this Court vide order dated 06.11.2019.

The grievance of the applicant(s) is that the builder (SatinderSingh Bhasin) is not facilitating execution of tripartite agreementbetween the builder, unit buyers and UPSIDA.

In our opinion, that cannot be the basis to entertain the prayerfor cancellation of bail.

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AMr. Shyam Divan, learned counsel appearing for the Builder(Satinder Singh Bhasin), on the other hand submits that theapprehension entertained by the applicant(s) that the property(Grand Venice) in which the applicants have invested and portionof which is likely to be demolished by the Commissioner, MeerutDivision, Uttar Pradesh can be redressed by calling upon the StateBto consider the proposal submitted by the builder for convertingthe user of land in question as freehold. That proposal has beenfavourably recommended by the concerned Committees and theState Government needs to now quantify the amount payable bythe Builder for availing of the Scheme of conversion as freeholdCland.

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In light of this submission, we direct the Secretary of theconcerned Department of the State of Uttar Pradesh to takeexpeditious decision on the proposal already submitted forconverting the land in question as freehold land and submitDappropriate report in this Court in that behalf before the next dateof hearing. If there is any further formality to be complied with bythe builder, the builder can be called upon to do so and if theproposal cannot be accepted in law, that position be made amplyclear in the decision to be taken by the authority concerned byrecording reasons in that regard. To enable the State to submitEthe report, we defer the hearing of these matters till 23.11.2021,when appropriate orders will be passed on the proposal submittedby the builder and the submissions made on his behalf.

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F5.4. On 13.12.2021, this Court once again impressed upon theSecretary of the Department concerned to take expeditious decision onthe proposal regarding conversion of the subject land as freehold, asobserved in the order dated 20.10.2021.

6. Pursuant to the direction so issued in the above-referred ordersGof this Court, respondent No. 1 considered the matter relating to theprayer of the petitioner for conversion of the subject land as freehold;and, by way of the impugned order dated 24.01.2022, declined to accedeto the proposal and prayer of the petitioner for conversion of the subjectland from leasehold to freehold under the said policy and the stipulationstherein.H

6.1. In the impugned order dated 24.01.2022, it was reasoned thatthe policy came into existence for the first time in the year 2013 andtheme-based malls were included in the year 2016, whereas the allotmentof the subject land was made on 05.08.2006; the subject land was givenunder the lease deed for a period of 90 years; and partial completioncertificate was issued on 07.05.2011. Thus, developers and buyers wereaware about land being taken on lease and investment had been made inthose terms. Further, the planning and construction of plot had not beenunder the provisions of policy in question.

6.2. In continuation, it was also reasoned that there was noparticipation of any State Government PSU/SPV as required in therelevant clauses of the amended policy; the land could be made freeholdas per rules after its acquisition by executing agency only if there wasminimum 20% participation of any PSU/SPV of the State Government.It was also observed that as per the terms of allotment, conditions ofregulating authority would be applicable and there was no provision inthe existing policies of respondent No. 2 to give developed land forfreehold.

6.3. While rejecting the contention of the petitioner that themepark/amusement park could be established by any private sector, PPPor any authority creating SPV, it was held that its assessment, selectionand implementation is subject to the decision of authority concernedunder its own rules; and since there was no policy of the authorityconcerned for giving the land as freehold, the request was liable to berejected.

6.4. In relation to the other contention that respondent No. 2 shouldallow execution of bipartite sub-lease if the land was not made freeholdin absence of any condition of tripartite sub-lease in the lease deed dated23.08.2006, it was observed that although, the said lease deed did notexplicitly mention the execution of tripartite sub-lease but, the allotmentletter did so and point No. 13 of the said lease deed also made it clearthat the allottees have to abide by general terms and conditions ofallotment. In addition, it was also observed that the other lease deeddated 30.03.2009 explicitly mentioned such a condition and the integratedmap of both parcels of land for total area of 40505 sq. mtrs. was approvedon 08.10.2009. It was also observed that since the question as to theexecution of tripartite sub-lease was sub judice before the High Court,it was not proper to take any final decision in that regard.

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A6.5. The relevant passages of the impugned order dated 24.01.2022could be reproduced as under: - “(1) In continuation of the request, point No. 1 submitted by ShriSS Bhasin, it is to be informed that allotment of plot for commercial,multiplex, hotel, shopping etc. has been issued on 05.08.2006 andmap dated 08.10.2009 and partial completion certificate on07.05.2011. In the allotment letter/lease deed also, the land is onlease hold for 90 years, it is clearly mentioned. It is also knownthat the space created in the said project has been booked by thepromoter in favour of different persons and institutions. At thetime of booking, the developers and the buyer were certainly awarethat the said land is leasehold in nature and the investment wouldhave been made by the investors on the above basis. Since thepolicy of the Department of Tourism came into existence for thefirst time in 2013, and theme-based malls were included in it in theyear 2016. Therefore, the argument presented in point number-1does not seem to be justified.

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(2) In response to the request expressed in point no. 2 by Shri SSBhasin, after perusing all the facts and the mandate issued by thetourism department dated 06.11.2013 and 03.05.2016, it wasfound that the government order issued by the tourism department,EUttar Pradesh in November 2013 and all the provisions of theamendment dated 03.05.2016 are effective only from the date of06.11.2013. As mentioned in these provisions, assessment of landfor projects for construction and operation of theme park/amusement park/theme-based mall, selection of investor, approvalof layout plan, building plan etc., is to be approved by theFgovernment partner on the basis of the standards mentioned inthe mandates, from which it is clear that in the projects completedor partially completed before the year 2013, the provisionsof the said mandates will not be effective, rather, theseprovisions have been implemented to encourage the establishmentGof such new schemes in the state. In the case in question, theproposed building map was approved by UPSIDA on 08.10.2009as per the norms applicable for the time being. According to theabove approved map by the petitioner, on the basis of construction,the first partial completion certificate was issued by UPSIDA on07.05.2011 in respect of commercial area of 179017 sq. mts. OnHthe basis of further construction done by the petitioner, second E

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partial Completion Certificate was issued by UPSIDA on16.04.2015. Theme based mall was included under the schemeon 03.05.2016. From this it is clear that the planning andconstruction of the plot in question by the petitioner has not beendone under the provisions of the above referenced mandates issuedby the Tourism Department for the establishment of theme park/amusement park/theme-based mall. Therefore, the provisions ofthe said orders are not effective on the plot in question.

In the case in question, the project has been implementedby the petitioner through private investment and there isno participation of any State Government PSU/SPV orcompany in the project. As per paragraph d above, aprovision has been made to make the land available as freehold as per rules after the acquisition of land by theexecuting agency only if there is minimum 20 percentparticipation of any public sector undertaking/SPV of thestate government. It is also clear from para g of the mandatedated 03.05.2016 that the Act and the conditions of theauthority related to the project will be considered asapplicable. The plot in question is located in Surajpur Site-4, notified industrial development area of UPSIDA, whichis regulated by the regulations of UPSIDA. In the existingpolicies of UPSIDA, there is a provision to give developedplots on lease hold only, there is no provision for freehold.In this context, the request of the petitioner regardingfreehold of the land in question is not covered by the abovemandates issued by the Tourism Department, UttarPradesh. Its analysis has been done in detail in Para-12 ofOffice Order No.- 6009/77-4-21-77 SIDC/18 dated19.11.2021 issued on 19.11.2021.

The petitioner, vide his representation dated 21.01.2022,has been requested to read the provisions mentioned inpara-3 of mandate dated 06.11.2013 by linking it with para-4. The following is mentioned in Para-3 of the mandatedated 06.11.2013 ‘The establishment and operation oftheme park/amusement park can be done by private sector,PPP or any authority by creating an APV. In such situation, A

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all the decisions regarding the assessment of the desiredland, the selection of the private investor and theimplementation of the project after the selection will betaken by the concerned authority/government body/publicundertaking under its own rules.

It is clear in Para-3 that all the decisions regarding‘establishment and operation of theme park/amusementpark and project implementation’ will be taken by theconcerned authority under its own rules. Since there is nopolicy of the authority for freehold, hence the request isnot acceptable.

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4. Due perusal of records was done in the context of the factsmentioned/reported in point no. 4 by Shri SS Bhasin and it wasfound that although the lease deed executed on 23.08.2006 doesDnot directly describe or mention the tripartite sublease deed butPara 10(b) of the allotment letter dated 05.08.2006 clearly mentionsto execute tripartite sub-lease deed.

10 (b). The Tripartite Lease Deed of the built-up premisesshall be executed by UPSIDC. Ltd., with the ultimateEallottee of Developer on the request of the developer inwriting. In tripartite lease deed, the allottee of developershall be the lessee, the UPSIDC Ltd., will be the lessorand the developer shall be a confirmation party. TheUPSIDC will be transferring the proportionate undeliveredinterest in the land while the developer will be transferringFthe interest in the built-up space.

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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 thecompliance of the conditions mentioned in the allotment will alsobe ensured:

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13. The Allottee will have to abide by general terms andconditions of Allotment of UPSIDC and also to observe thelaws & other rules and regulation carry out any specificactivity from appropriate Govt. bodies before undertakingsuch activities. Failure to do so may result in cancellation H

of allotment of the whole plot or part thereof as UPSIDCdeems fit.

Therefore, to say that the condition of tripartite sublease deeddoes not apply to them is not legal. Apart from this, the lease deedexecuted on 30.03.2009 mentions the execution of tripartite sub-lease deed. Since in the lease deed executed on 23.08.2006 thearea is 37208.00 and the area mentioned in the lease deedexecuted on 30.03.2009 is 3297.00 square meters, the integratedmap of the total area of 40505.00 square meters has been approvedon 08.10.2009. Therefore, in the above circumstances also theexecution of tripartite sub-lease deed is justified under the rulesof the Authority.

Should the tripartite sub-lease deed be executed at present ornot? Regarding the above, Writ Petition No. 1821/2021 is pendingbefore the Hon’ble High Court of Allahabad, due to which theAuthority has received a stay order on 11.10.2021 in the ongoingcase No. 257/2018 issued by the Hon’ble ACJ (SD) Gautam BudhNagar. Since the matter in question is sub-judice in the Hon’bleHigh 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 ShriSS Bhasin to be freehold in accordance with the mandate issuedby the tourism department for the year 2013 and 2016 under theterms of allotment letter and lease deed and due to non-complianceand in the light of the opinion made available by the JusticeDepartment in the past, due to the lack of legality and the provisionsmentioned in the Government Order dated 06.11.2013 and03.05.2016 issued by the Department of Tourism. There is nofree-hold policy in respect of the Industrial DevelopmentAuthority’s land. In view of the provisions of the mandate dated06.11.2013 and 03.05.2016, the plot No. SH-3, Industrial Area,Surajpur Site-4, District- Gautam Budh Nagar in question of thepetitioner 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 andrepresentation of Shri SS Bhasin, director of the allottee companyM/s Bhasin Infotech and Infrastructure Pvt Ltd, was submitted

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Ato the Hon’ble Supreme Court on 21.01.2022. In compliance withthe 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 dated24.01.2022, petitioner filed the present writ petition in the High Court.BDuring 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 beforethis 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 waswithdrawn to this Court in the interest of justice. The relevant part of theCorder dated 28.07.2022 withdrawing the writ petition to this Court readsas under: - “After hearing learned counsel for the parties for some time,in our opinion, to do substantial justice to the parties, it may beappropriate to hear the issues raised in Writ Petition No.3790/D2022 filed before the High Court of Judicature at Allahabad, Benchat Allahabad, along with Writ Petition (Crl.) No.242 of 2019 pendingin this Court.

Accordingly, we direct withdrawal of the stated Writ PetitionNo.3790/2022, which is pending in the High Court of JudicatureEat Allahabad, and to be heard along with Writ Petition (Crl.) No.242/2019.

The Registrar (Judl.) of this Court may ensure that papers ofthe stated writ petition are made available and placed before theCourt on the next date of hearing along with Writ Petition (Crl.)FNo.242/2019 by requesting the High Court to forward the papersthrough 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 datedG28.07.2022, the writ petition filed by the petitioner-company has beenwithdrawn to this Court and has been placed for consideration alongwiththe main matter, being W.P. (Crl.) No. 242 of 2019. On 07.09.2022,after having heard learned counsel for the parties preliminarily, we foundit just and appropriate to consider this transferred case before enteringinto the remaining issues in the connected matters. Accordingly, the partiesH

were granted time to complete the record with translated copies of therelevant documents and short notes on their proposed submissions.

8.1. After completion of the record, we have heard Mr. ShyamDivan, learned senior counsel for the petitioner, Mr. K.M. Nataraj, learnedAdditional Solicitor General for respondent No. 1, and Mr. A.N.S.Nadkarni, learned senior counsel for respondent No. 2 in relation to thistransferred case, T. C. (C) No. 82 of 2022.

9. It may be pointed out at this juncture that in W.P. (Crl.) No. 242of 2019, two applications, being Crl. M.P. Nos. 99512 of 2021 and 99514of 2021, have been filed by director of the present petitioner-company,respectively for impleadment of Uttar Pradesh State IndustrialDevelopment Authority in the said writ petition filed in this Court; andfor directions to respondents concerned, to convert the subject land fromleasehold to freehold as also for other directions to UPSIDC to notinterfere in execution of sub-lease deed by the petitioner-company fortransfer of the built-up portion of its project in the name of allottees or inthe 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. 99512of 2021 and 99514 of 2021, we deem it appropriate to observe that sofar as the prayers for impleadment in W.P. (Crl.) No. 242 of 2019 andfor directions to the UPSIDC as regards execution of sub-lease deed ortripartite sub-lease deed are concerned, the same being not directly thesubject-matter of this transferred case [T. C. (C) No. 82 of 2022], wewould prefer leaving those aspects open for consideration at theappropriate stage in the appropriate proceedings. It may, however, beobserved that the first prayer in Crl. M.P. No. 99514 of 2021, seekingdirections for converting the subject land from leasehold to freehold, isessentially the relief claimed in this transferred case and shall standcovered by this judgment. In the given status of record, we have, ofcourse, taken into consideration a few documents filed along with theseapplications, particularly the communications of the petitioner to UPSIDCfor conversion of land from leasehold to freehold.

10. While challenging the impugned rejection order dated24.01.2022, learned senior counsel for the petitioner has referred to thebackground features relating to the project undertaken by the petitioneron the subject land and has asserted on the rights of the petitioner to get AB

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Athe 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 contiguouspieces of land, admeasuring 40505 sq. mtrs. having been leased out tothe petitioner under the aforesaid two separate lease deeds datedB23.08.2006 and dated 30.03.2009, it has been submitted that the petitionerhas made operational one combined project, on one part of the subjectland, 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 severalhigh-end brands. It has also been submitted that the said project isoperational since the mid of 2016 inasmuch as undisputed possessionChas already been taken by 301 buyers; and out of 220 allottees whohave disputes with the petitioner, 97 have settled and the vacant unitsare awaiting possession by the remaining buyers/investors.

10.2. While assailing the impugned order dated 24.01.2022, it hasbeen strenuously argued by the learned senior counsel for petitioner thatDthe order so passed by the Additional Chief Secretary/Principal SecretaryIndustrial Development Section-4, Uttar Pradesh is devoid of any meritand 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 theEGovernment of Uttar Pradesh in the year 2013 for promotion of tourismin the State, it has been submitted that clause 3 of the said policy clearlystates that ‘Theme Park/Amusement Park can be established andoperated by private sector, PPP or any authority by creating anS.P.V. In such a situation, all the decisions regarding the assessmentFof the desired land, the selection of the private investor and theimplementation of the project after the selection will be taken bythe concerned authority/government body/public undertaking underits own rules.’ Therefore, the mall in question, which is a theme-basedmall, is entitled to the benefits ensuing from the said policy for conversionof the land from leasehold to freehold; and the recommendation letterGdated 31.01.2015, was rightly issued by UPSIDC to the Department ofTourism of the Government of Uttar Pradesh, that the project in questionbe recognized as a tourist destination.

10.4. Learned senior counsel for the petitioner has further referredto the amendment of the said policy by the Memo dated 03.05.2016, andHwith particular emphasis on clause 5 thereof, has contended that theme- based mall has also been included in the policy with relaxation as regardsminimum of 300 acres of area in case of theme-based malls. With furtheremphasis on clause 5 (d) which stipulates that ‘The working agencywill provide freehold land to the S.P.V. after acquiring the land asper the rules, for which the freehold charge will be payable as perthe rules’, it has been argued that in view of the aforesaid amendments,the petitioner is entitled to the benefit of getting the subject land convertedfrom leasehold to freehold.

10.5. It has been, thus, contended that in view of eligibility andentitlement of the petitioner for the benefits under the policy in questionas amended, the approval/qualification letter dated 16.09.2016 was rightlyissued by the Director General Tourism of the State of Uttar Pradesh,pursuant to the recommendation of the Committee constituted under theamended policy, permitting the project situated at the plot in question tobe recognized as a “theme-based mall” and also recognising that thepetitioner would be entitled to the benefits ensuing from the Memo dated03.05.2016. Learned senior counsel would submit that in terms of theamended policy and also on account of the project in question havingbeen recognised as a theme-based mall, the petitioner is entitled to getthe subject land converted from leasehold to freehold and denial of thisright of the petitioner under the impugned order dated 24.01.2022 deservesto be disapproved.

10.6. It has also been submitted on behalf of the petitioner thatresolution of the aforesaid issue will not only add value to the investmentof the buyers but will also generate employment opportunities; revenuefor the State and Central Government; and entertainment/recreationalopportunities for the people from all walks of life. Further to this, learnedsenior counsel for the petitioner has submitted that non-grant of freeholdwould adversely impede investment in the mall since expected foreigninvestment would fall through and Indian investors would refuse to executethe lease deeds.

10.7. In the other limb of submissions and prayers, learned seniorcounsel for the petitioner has submitted that the petitioner should beallowed to enter into bipartite agreements with the investors, since clause9 of the lease deed dated 23.08.2006 provides for an absolute right ofthe allottee to sell the built-up portion of the land to any person of hischoice; and if at all permission is required in terms of clause 3 of theaforesaid lease deed, the same is with respect to the transfer of a portion A

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Aof 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 bythe petitioner wherein, the Additional Civil Judge (SD), Gautam BudhNagar, by the order dated 11.10.2021, had restrained respondent No. 2from implementing clauses 3(e), (i), (j) and 5 of the aforesaid lease deed;and, therefore, it has been argued that the petitioner-company is withinBits rights to enter into bipartite agreements. It has also been pointed outthat an ex parte stay was granted by the Allahabad High Court over thesaid order dated 11.10.2021, which was vacated by this Court after apetition for special leave to appeal was filed by the petitioner, whilecontinuing with the interim relief granted by the Trial Court.

C10.7.1. Learned senior counsel for the petitioner has highlightedthe practical difficulties of entering into tripartite sub-lease agreementswith the tenants in a tenancy structure; and has submitted that clarificationis required that no tripartite lease deed is required for sub-letting thebuilt-up space; that clause 3(j) of the lease deed dated 23.08.2006 is Dinapplicable for transfer of built-up portion; and that the right under clause9 of the said lease is absolute.

11. Per contra, learned ASG and learned senior counsel forUPSIDC have duly supported the order impugned and have submittedthat no case for issuance of any writ, order or direction in terms of theEprayers of the petitioner is made out.

11.1. While refuting the case of the petitioner, it has been submittedon behalf of the respondents that the amended policy would not beapplicable to the petitioner for four primary reasons. First, that as perthe lease deed, the subject land has been leased to the petitioner, with 90Fyears being the term of the lease. Secondly, the policy stipulates thatthere must be partnership with State Government/PSU/GovernmentCompany, who must have minimum 20% stake/investment but then, thereis no such investment of the State Government or PSU or GovernmentCompany in the project in question. Thirdly, the policy is applicable toprojects having an average Floor Area Ratio[4] of 0.5 whereas FAR ofGthe subject project is 4.0. Fourthly, the policy stipulates that the acquiredland is to be made available to the SPV as freehold, for the sole purposeof construction of theme-based mall; and there is nothing within thepolicy that provides for conversion of the land from leasehold to freehold.

H4 ‘FAR’ for short.

11.1.1. Apart from the above, it has also been submitted that sincethe policy was prospective in nature, it would not be applicable to thepetitioner since allotment of leasehold land was made and even the firstpartial completion certificate was also issued much before issuance ofpolicy.

11.2. It has further been contended on behalf of the respondentsthat the petitioner cannot place reliance on the two letters/communicationdated 31.01.2015 and 16.09.2016 since both were merelyrecommendatory in nature where, in the first letter, the onlyrecommendation was that the subject mall be recognised as a touristdestination and even in the second letter, the recommendation hadessentially been to the effect that the subject mall be approved as atheme-based mall under the amended policy dated 03.05.2016. However,there had not been any recommendation for conversion of the land fromleasehold to freehold; and there was no provision for any such conversionin the allotment letters or the lease deeds. Apart from this, a letter dated14.01.2016 sent by the Principal Secretary to the State Government toUPSIDC has also been referred to stating that no transfer of the landallotted to UPSIDC would be permitted except by lease.

11.3. Learned counsel for the respondents have also submittedthat the prevailing policy of UPSIDC and other industrial developmentauthorities of the State with respect to allotment or transfer of plots is onleasehold basis. Given that there has been no conversion of leasehold tofreehold as regards nearly 6000 allotments of land by UPSIDC in thesubject area, if the petitioner is granted this benefit, the other lesseesmay also claim the same which would be highly prejudicial to theGovernment, as also contrary to the rules and regulations of UPSIDC.

11.4. As regards other submissions on behalf of the petitioner forallowing bipartite sub-leases, learned counsel for the respondent UPSIDChas referred to the stipulation of the allotment letter dated 05.08.2006,including clause 10 that in relation to the allottees of the petitioner, atripartite lease deed has to be executed with allottee of the developer tobe the lessee, UPSIDC to be the lessor and the developer to be aconfirming party. Further, clause 13 of the lease deeds dated 23.08.2006and 30.03.2009 makes it clear that the lessee has to abide by the termsand conditions of allotment, leaving no room of doubt that the subjectproperty is a leasehold property. It has also been submitted that thepetitioner never sought execution of tripartite lease deeds from UPSIDC, A

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Aand the original suit filed by the petitioner, being CS No. 257 of 2018,seeking declaration and permanent injunction against respondent No. 2from enforcing clauses 3(e), (i) and (j) of the lease deed dated 23.08.2006,remains pending before the Trial Court.

12. We have given anxious consideration to the rival submissionsBand have perused the material placed on record.

13. As noticed hereinabove, a few contentions have been urgedin this matter on behalf of the petitioner as regards the questions relatingto the execution of sub-lease deed or against execution of tripartite sub-lease deed and such contentions have been refuted/contested on behalfCof the respondents. We have only taken note of the rival contentions inregard to these questions but, for the reason that these aspects are notforming the part of principal prayer in T. C. (C) No. 82 of 2022 and evenother litigations remain pending, we would leave the same at that onlyand for determination at the appropriate stage in the appropriateproceedings.D

14. The principal question arising for determination in the presentmatter is whether the petitioner is entitled to seek conversion of thesubject land from leasehold to freehold in view of the policy formulatedby 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 viewEthat answer to this question could only be in the negative for more thanone reason.

15. A comprehension of the factual aspects and the rivalsubmissions makes it clear that the entire case of the petitioner-company,asserting its right to get the subject land converted from leasehold toFfreehold, is premised on the policy formulated by the respondent No. 1on 06.11.2013 and amended on 03.05.2016. The petitioner would assumethat the said policy with its amendment is applicable to its project and tothe subject land. This assumption is without any legal basis and the claimof the petitioner turns out to be hollow and baseless because neither theGoriginal policy formulated on 06.11.2013 nor its amendment on 03.05.2016have 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 thesubject land was allotted to the petitioner on 05.08.2006 after acceptanceof its offer of allotment of the said industrial plot by UPSIDC. Clause14(a) of the allotment letter dated 05.08.2006 had been clear andH

unequivocal that land was allotted on 90 years lease basis. Further, itwas provided in clause 10(b) of the allotment letter that tripartite leasedeed of the built-up premises would be executed where the allottee ofthe developer shall be the lessee; UPSIDC shall be the lessor; and thedeveloper (the petitioner) shall be a confirming party. The lease deeddated 23.08.2006 in relation to 37208 sq. mtrs. of the allotted land carriedthe covenants, inter alia, that the lessee (the petitioner) will not, withoutthe consent of lessor (UPSIDC), transfer, sublet, relinquish, mortgageor assign its interest in the demised premises or in the buildings standingthereon with the other requirements [vide clause 3 (j)]. It was alsostipulated that the allottee shall have to abide by the general terms andconditions of allotment of UPSIDC [vide clause 13]. It appears that inthis lease deed dated 23.08.2006, the stipulation regarding tripartite leasedeed did not as such occur but the said clause 13 made all the generalconditions of allotment binding on the petitioner. Moreover, in the otherlease deed dated 30.03.2009 in relation to the adjacent plot of land, thisstipulation was also inserted in clause 3(j). We are not entering into thequestions relating to tripartite lease deed in this matter but, this much isapparent on a comprehensive look at the terms of allotment and thecovenants of lease deeds that the land was allotted to the petitioner on90 years lease basis and further treatment of land and built-up portionthereupon were to abide by those terms and covenants. It is also clearthat possession of the entire parcel of land comprising the aforesaid twolease deeds, i.e., 40505 sq. mtrs., was handed over to petitioner on31.03.2009 and on 08.10.2009, the building plan for construction overthe aforesaid allotted land was sanctioned by respondent No. 2whereafter construction over an area of 179017.82 sq. mtrs. wascompleted by the petitioner for which, a partial completion certificatewas issued by respondent No. 2 on 07.05.2011. Until all this time, therewas nothing existing as regards the policy sought to be relied upon bythe petitioner.

15.2. The policy in question came up for the first time only on06.11.2013 and it was formulated essentially for growth of tourism sectorin the State of Uttar Pradesh by setting up theme parks/amusementparks. The aforesaid policy dated 06.11.2013 laid down conditions andincentives, including exemption from stamp duty, exemption from tax onconstruction goods/materials imported into the State etc., which wereavailable to the theme parks/amusement parks with minimum area of300 acres and minimum capital investment of Rs. 500 crores. Clause 3

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Aof the said policy, of course, provided that a theme park/amusementpark could be established and operated by private sector,public-privatepartnership or any authority by creating special purpose vehicle and inthat situation all the decisions regarding assessment of the desired land,selection of the private investor and implementation of the project wereto be taken by the concerned authority/government body/publicBundertaking under its own rules but we are unable to find any correlationwhatsoever of this stipulation of the policy with the subject land that hadbeen given on lease to the petitioner as also with the project of thepetitioner which could never be termed as any theme park or amusementpark. Viewed in this light, the letter dated 31.01.2015 as sent by theCManaging Director of UPSIDC, recommending the case of the petitionerto declare its multiplex, hotel and commercial construction as touristdestination, turns out to be rather baseless and its accompanyingdocument, stating the demand of the petitioner to convert the land inquestion to freehold, also appears to be wanting in logic. We shall dealwith this letter dated 31.01.2015 in a little more detail hereafter. SufficeDit to observe at this juncture that the project of the petitioner cannot becorrelated with this policy dated 06.11.2013, meant for theme park/amusement park and that too with involvement of a Government bodyor an instrumentality of the Government in selection of the private investoras also with participation by way of investment upto 20% of the cost ofEthe land.

15.3. As noticed, on 16.04.2015, respondent No. 2 issued secondcompletion certificate in respect of the project of the petitioner. Evenuntil this point of time, there was no amendment to the policy in question.15.4. Now, switching over to the amendment of the policy inFquestion by way of Office Memo dated 03.05.2016, of course, the policyto promote tourism was modified so as to grant certain other concessionsand was also expanded to include theme-based mall but then, suchbroadening of the policy came with typical and peculiar stipulations. ACommittee was put in place for giving recommendations for permissionsGin the matters related with theme-based mall. Significantly, clause 4 ofthe original policy was modified in the manner that for theme-basedmall, the limit of partnership of public enterprise/company of the StateGovernment was changed from 20% of the maximum cost of land tominimum 20% of cost of land; and it was provided that the workingagency will provide freehold to the SPV after acquiring the land as perH

the rules, for which freehold charge will be payable. These stipulationsoccurring in the said Office Memo dated 03.05.2016 make it more thanclear that as regards theme-based mall a minimum of 20% of thepartnership of the State Government or its instrumentality was stipulated;and such instrumentality of the State Government was also referred toas the working agency, which was to provide freehold land to the SPVto be created for the purpose. The petitioner seems to have developed amall on the subject land and, as per the suggestions made in the referredcommunications, seems to have provided certain facilities to make itattractive but fact of the matter remains that the project has beenimplemented by the petitioner through private investment and there is noparticipation of the State Government or any public sector undertakingor any instrumentality of the State therein. That being the position, claimof the petitioner to seek benefits flowing from the Office Memo dated03.05.2016 falls flat and is knocked to the ground.

15.4.1. It is also noteworthy that no SPV has been created inrelation to the project of the petitioner with involvement of the StateGovernment or any of its agencies/instrumentalities. Which particularagency is, then, to be termed as “working agency” for the purpose ofthe Office Memo dated 03.05.2016 remains a question inexplicable. Ifthe stretch of arguments of the petitioner seeking freehold land is takeninto consideration, only UPSIDC could be termed as “working agency”for the present purpose but then, there is no partnership of UPSIDC inthis project.

15.5. Apart from the above, it is also noteworthy that the subjectland was specifically leased to the petitioner for a period of 90 years interms of the allotment letter dated 05.08.2006 and then lease deeds wereexecuted on 23.08.2006 and 30.03.2009. The construction wasundertaken by the petitioner over part of the land in question wherepartial completion certificate was issued on 07.05.2011 and secondcompletion certificate was issued on 16.04.2015. Several significantconsequences follow from this status of record. In the first place, whenthe land had already been leased to the petitioner and the petitioner isalso holding the same as lessee under the lease deeds executed for thepurpose, there does not appear any reason, justification, logic or rationalethat such leasehold rights be converted into freehold rights. Secondly,the amended policy which is sought to be relied upon by the petitionercame into existence only after second completion certificate had been AB

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Aissued to the petitioner and, as per the petitioner’s own assertions, themall had been put into operation. We are unable to find any stipulation inthe original policy or its amendment that it could be applied withretrospective effect and to override the existing legal rights as also theexisting legal obligations.B15.6. Viewed from any angle, even on direct construction of therelevant clauses vis-à-vis the subject-matter of the present petition, itremains beyond a shadow of doubt that the policy in question with itsamendment is of no application whatsoever in relation to the project inquestion. Therefore, the claim of the petitioner has rightly been rejected.

C16. In relation to the relied upon letter dated 31.01.2015 sent bythe Managing Director of UPSIDC, recommending the case of thepetitioner to declare its multiplex, hotel and commercial construction astourist destination, as observed hereinabove, the same had been whollybaseless and rather unwarranted. Its accompanying document carryingthe demands of the petitioner for various grants and exemptions as alsoDfor converting the subject land to freehold was also without any legalbasis. As noticed, at the relevant point of time, the policy in question onlyrelated to theme parks/amusement parks and it is difficult to see even alogic that the said Managing Director chose to forward the propositionof the petitioner for consideration of the State Cabinet. In any case, theEsaid letter dated 31.01.2015 was only recommendatory in nature; andeven the recommendation had only been to declare the places as touristdestination and to give exemption. The Managing Director of UPSIDCcould neither have recommended for converting the land to freehold nordid he do so. The said letter is of no relevance whatsoever.F17. Strong reliance, however, has been placed on behalf of thepetitioner on the letter/communication dated 16.09.2016, which had beena communication received by the petitioner from the Director GeneralTourism. The petitioner has described this letter as one of “approval”and has framed the relief in the writ petition on that basis. During thecourse of submissions too, substantial reliance has been placed on thisGletter/communication dated 16.09.2016 and the same has been termedas 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 inquestion had already been declared as theme-based mall and theHpetitioner-company is entitled to get the subject land converted from leasehold to freehold. Learned counsel for the petitioner has highlightedthe composition of Committee that had made the recommendation andsubmitted that when the high-ranking officers including PrincipalSecretaries of Tourism Department, Cultural Department, and Housingand Town Planning Department of the State Government had been themembers of this Committee, its recommendations partake the characterof approval/qualification and cannot be ignored. The assertions of thepetitioner and the submissions made in that behalf carry their ownshortcomings.

17.1. Whatsoever had been the composition of the Committee, itcould have only made recommendation for final decision by the competentauthority. Merely for presence of the Principal Secretaries of theDepartments concerned in the Committee, it cannot be held that itsrecommendation itself would become a binding decision. Moreover, aclose look at the said communication dated 16.09.2016 makes it evidentthat even the recommendation had only been to approve the proposal‘as a theme-based mall.’ It is too far-stretched to read this communicationas if the Committee had recommended for grant of freehold rights. Asnoticed, providing freehold land for the purpose of setting up a theme-based mall had entirely different requirements and had been of entirelydifferent 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 directlyconcerned with the subject land i.e., UPSIDC. Any suggestion orrecommendation in relation to the subject land as also the lease deedsalready executed between the petitioner-company and UPSIDC couldnot have been made without taking into account the stand of UPSIDC.Noteworthy it is that after passing of orders dated 20.10.2021 and13.12.2021 by this Court in W.P. (Crl.) 242 of 2019, the matter wasindeed examined by the Industrial Development Section-4 of theGovernment of Uttar Pradesh where the director of the petitioner-company was afforded the opportunity of personal hearing on 19.01.2022through video conferencing and his further representation sent throughemail on 21.01.2022 was also taken into consideration while passing theimpugned order dated 24.01.2022.

18. For what has been discussed hereinabove, we are satisfiedthat the policy in question cannot be applied in relation to the subjectland. Therefore, we find no necessity to delve further into the other A

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Aissues raised on behalf of the respondent No. 2 that it has no policy togrant freehold rights in its allotments. Suffice it would be to say for thepresent purpose that the claim of the petitioner for freehold rights inrelation to the subject land cannot be accepted.

19. In an overall comprehension of the matter, we are satisfiedBthat the impugned order dated 24.01.2022, insofar as it relates to theprayer of the petitioner for grant of freehold rights on the subject land,does not suffer from any infirmity and calls for no interference for thebasic reason that the policy in question cannot be applied in relation tothe subject land and, in any case, prayer of the petitioner for grant ofCfreehold rights cannot be granted contrary to the terms of allotment andcovenants of lease deeds.

20. In view of the above and subject to the observations foregoing,writ petition filed by the petitioner-company [Writ Petition No. 3790 of2022 in the High Court - T. C. (C) No. 82 of 2022 in this Court] isDdismissed; 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 subjectland from leasehold to freehold, is also rejected. However, we make itclear that this judgment shall otherwise be of no bearing on the otherissues pending or arising between the parties. In other words, thisjudgment shall be relevant only to the extent of rejection of the prayer ofEthe petitioner-company for converting the subject land from leasehold tofreehold 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 2022Falso stand disposed of, accordingly.

Nidhi Jain(Assisted by : Vinayak and Rakhi, LCRAs)

Matters disposed of.

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