WRIT PETITION 37344 of 2023 on 20 November 2017

1. Heard Shri Naveen Sinha, learned Senior Counsel assisted by Shri Rohan Gupta,learned counsel for the petitioner and Shri Praveen Kumar, learned counsel for theYEIDA/respondent No. 2 and Shri Kaushalendra Nath Singh, learned counsel forrespondent No. 3. Shri A. K. Goyal, learned Addl. Chief Standing Counsel hasappeared for the State-respondent No. 1.

2. The writ petition has been filed assailing the legality and validity of the OfficeMemorandum dated 20.11.2017 as also the consequential Demand Order dated18.10.2023 issued by the respondent No. 2 (YEIDA) to the extent it seeks to levytransfer charges to the tune of Rs.1,13,88,69,300/- upon the petitioner. Aconsequential relief in the nature of mandamus directing YEIDA/respondent No. 2to issue a final NOC for approval of maps from NOIDA Authority/respondent No.3 in favour of the petitioner has also been sought.

3. It is the case of the writ petitioner that it is a renowned real estate developer anda sub lessee of Jai Prakash Associates Ltd. for development to the land demised incommercial Plot No. C3-7, area 71,627 square meters situate inside the JaypeeGreens Wish Town, Sector 129, Noida, Gautam Budh Nagar. The respondent No. 2,YEIDA entered into a Concession Agreement dated 7.2.2003 with Jai PrakashIndustries Ltd. to develop, design, engineer, finance, procure, construct, manage,operate and maintain the Taj Expressway with the right to collection and retentionof toll etc., and also develop 25 million square meters of land along the proposedexpressway.

4. The Concession Agreement provided under Clause 4.3 (d) that theConcessionaire would be entitled to sub lease /end user in its sole discretionwithout any further consent or approval or payment of any charges/fee etc., to therespondent No. 2. Subsequent, to the execution of the Concession Agreement dated7.2.2003, Jaypee Infratech Ltd., was incorporated as a Special Purpose VehicleCompany (SPV) for carrying out the development as per the ConcessionAgreement. A sub lease dated 28.8.2023 was executed by Jaypee Infratech Ltd., infavour of Jai Prakash Associates Ltd. Thereafter, Jai Prakash Associates Ltd. further executed a sub lease dated 29.8.2023 in favour of the petitioner for the Plot No. C3-J, area 71,627 square meters. The petitioner applied for NOC fromYEIDA/respondent No. 2 for approvals of the sanction of Building Plans fromNOIDA Authority on 4.9.2023 and 6.9.2023, but the YEIDA Authority instead ofissuing the NOC has raised the impugned demand for depositing the transfercharges. The impugned communication has been addressed to Jay PrakashAssociates Ltd., however, the liability to pay the same has been fastened upon thepetitioner.

5. Learned counsel for the petitioner has assailed the impugned demand on theground that there is neither any provision of law that empowers YEIDA to levy thetransfer charges. The petitioner's rights are fully protected by the ConcessionAgreement dated 7.2.2023 and the lease deed dated 15.2.2008, the impugned OfficeMemo dated 20.11.2017 is merely an ineffective administrative order passed byYEIDA and cannot take away the rights of the petitioner under the contract, theoffice Memo has no statutory force. It is, thus, prayed that the impugned demand isliable to be interfered with by this Court and the writ petition is liable to beallowed, as prayed. Reliance has been placed upon certain orders of co-ordinateBenches passed in Writ-C No. 8243 of 2019, Writ-C No. 33724 of 2019 and Writ-CNo. 13197 of 2020.

6. The writ petition has been opposed by the counsels appearing for the respondentNos. 2 & 3 by submitting that similar controversy as raised in the instant writpetition has already been decided by a co-ordinate Bench of this Court passed inWrit-C No. 21540 of 2020 (Sushil Kumar Nagrath versus State of U.P. & others)vide order dated 20.1.2021 wherein it has been held that even though transfercharges may not be having a statutory flavor in its traditional sense, but onceNOIDA, an instrumentality of State in exercise of its supervisory power underSection 7 of the Act, stipulates a condition of payment of transfer charges to be paidto NOIDA, lessor on every subsequent transactions and makes the said stipulationbinding on subsequent sub-lessees, it becomes a contractual liability for all sub-lessees to comply with the same. It is further submitted that recently, this Courtrelying upon the aforesaid decision dated 20.1.2021 has dismissed Writ Petition (C)No. 37344 of 2023 vide order dated 30.10.2023. It is, accordingly, submitted thatthe writ petition warrants dismissal at the threshold.

7. Shri Naveen Sinha, learned Senior Counsel appearing for the petitioner hasattempted to draw a distinction and submits that the decisions relied upon bycounsels for the contesting respondents shall not apply inasmuch as in those casesthe condition for charging the transfer charges was embodied in the lease deed andsub lease deed which is not the case at hand. He submits that in the case at hand, itis rather otherwise. There was a specific condition in the Concession Agreementdated 7.2.2023 i.e. Clause 4.3 (d) and 4.3 (e) which clearly provides that transferfee shall not be charged. In the wake of such a condition embodied in the leasedocument, the same would be binding and as such, the impugned Demand iscompletely unjustified.

9. From the records, it transpires that under the lease deed dated 15.2.2008, the TajExpressway Industrial Development Authority (lessor), now YEIDA/respondentNo. 2 demised on to the lessee (Jaypee Infratech Ltd.) (lessee) land ad-measuring28.586 hectares in village Wazidpur for a period of 90 years. Para 4 of the leasedeed (filed as Annexure-2 to the writ petition) gave the lessee unfettered right tosub lease the whole or any part of the demised land without requiring any consentor approval of or payment of any additional charges, transfer fee, premiums etc., tothe lessor or any other relevant authority. The sub lessee of the demised land hasalso been given right to execute sub-leases and as such, multiple sub-leases of thedemised land is permissible. However, the clause is silent as regards the executionof paying transfer fee so far as the sub lessee is concerned. Para 4 of the Lease deeddated 15.2.2008 is quoted hereunder:-

"4. The Lessee shall have unfettered right to sub-lease the whole or any part of theDemised Land, whether developed or undeveloped, and whether by way of plots ofconstructed properties or give on leave and license or otherwise dispose of its interestin the Demised Land or part thereof /permit to any person in any manner whatsoever,without requiring any consent or approval of or payment of any additional charges,transfer fee premiums etc. to the Lessor or to any other relevant authority. The sub-lessees of the Demised Land shall also be entitled to provide the Demised Land onsub-lease and hence, there can be subsequent multiple sub-leases of the DemisedLand in smaller parts. The Lessee/sub-lessee/licensee, as the case may be, shallhowever notify to the Lessor the details of all such sub-lease (s)/leave and licence(s)/disposal. Till the time such notification is made to the Lessor, the Lessor/sub-lessor/licensor, as the case may be, shall continue to remain liable to pay the RentAmount along with the Lessee. The quantum of Rent Amount payable to the Lessorshall remain unaffected by any such sub-lease (s)/leave and licence(s). It is herebyfurther clarified that the total Rent Amount payable by the Lessee and various sub-leases/transferees shall be to the maximum extent of Rs.100.00 (Rupees OneHundred) per hectare per year (various sub-lessees/transferees paying pro-rata rentfor the portion of land held by them). In case the Lessee considers it appropriate,tripartite agreement (s) in connection with sub-lease (s)/leave and licence (s) may beexecuted between the Lessor, the Lessee and the sub-lessee(s)/licensee(s) on the sameterms and conditions as contained herein.

Each sub-lease and/or transfer shall after the execution thereof be notified by thetransferor or the sub-lessor/sub-lessee to Lessor and till such time, it is so notified, thetransferor/sub-lessor shall remain jointly and severally liable along with thetransferor/sub-lessee for payment of lease rent to Lessor."

10. We further find that the demised plot No. C3-J, Sector 129, Noida having anarea of 71,627 square meters (17.69 acres) has been sub leased to Jai PrakashAssociates Ltd. under sub lease dated 28.8.2023 filed as Annexure-3 to the writpetition. Para 8 of the sub lease is relevant for the purposes of the present case andis being quoted hereunder:- "8. The Sub-Lessee shall be entitled to transfer the Demised Plot or the buildingsconstructed on the Demised Plot on further Sub-lease(s) within the terms of this Sub-Lease Deed as per applicable laws. The Sub-Lessee shall not be entitled to sub-dividethe Demised Plot except with the prior permission of the NOIDA and/or YEA, asapplicable for grant of such permissions, and Sub-Lessee bearing all charges inrelation to the sub-division of the Demised Plot, if any. The Sub-Lessee or thesubsequent Sub-lessees as the case may be shall notify to the NOIDA/YEA and theSub-Lessor the details of such Sub-leases and provide copies of such transfer/sublease deeds to the NOIDA/YEA and the Sub-Lessor or any other authority as may bespecified by NOIDA/YEA and/or the Sub-Lessor. In case, Sub-lessee transfer the saidDemised Plot, no transfer / NOC charges shall be payable to the Sub-Lessor.However, in case subsequent Sub-lessee, transfer the demised plot to any third party,then in that event the Sub-Lessor is entitled to charge the NOC/Transfer charges asper its policy and subsequent Sub-lessee/third party shall be liable to pay the same tothe Sub-lessor."

11. We further find that the demised Plot No. C3-J, Sector 129, Noida having anarea of 71,627 square meters (17.69 acres) has been further sub leased to thepetitioner M/s Gaursons Mega Project Pvt. Ltd under sub lease deed dated29.8.2023 which has been filed as Annexure-4 to the writ petition. Clauses 18 and24 are relevant and are being quoted herewith:-

"18. The Second Party shall upon completion of the project over the said Plot, beentitled to obtain Completion/Occupancy Certificate from NOIDA/ YEIDA/competent authority directly at its own cost without any reference to the First Party.However, the First Party shall extend all its co-operation to the Second Party to getthe Completion/ Occupancy Certificate without being liable in this regard.

24. All costs, stamp duty, charges, expenses, registration fees etc., payable on or in respect of execution and registration of this Deed shall be borne and paid solely by the Second Party."

12. From the perusal of the clause 8 of the first sub lease executed between JaypeeInfratech Ltd., and Jai Prakash Associates Ltd., it is more than apparent that theground urged by the learned counsel for the petitioner that the transfer charges isnot leviable upon the petitioner, does not merit consideration.

13. In view of the above, we find no merit in the writ petition and it is, accordingly,dismissed. No order as to costs.

Order Date :- 16.11.2023

Ravi Prakash

(Ashutosh Srivastava, J.) (Pritinker Diwaker, CJ)