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

- **Citation:** [2023] 4 S.C.R. 1053
- **Court:** Supreme Court of India
- **Decided:** 2023-03-17
- **Case number:** Civil Miscellaneous Writ Petition No.3790 of 2022
- **Bench:** Dinesh Maheshwari, J. K. Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhasin-infotech-and-infrastructure-private-ltd-v-state-of-uttar-pradesh-and-anr-37014
- **Pages:** 42

## Headnote

Lease: Conversion of land from leasehold to freehold in view
of policy formulated by the State - Entitlement to - On facts,
allotment of commercial plots to the petitioner company by the State
Industrial Development Corporation-UPSIDC, land allotted on 90
years lease basis - Building plan for construction over allotted
land sanctioned - Construction completed and issuance of partial
completion certificate - Thereafter, policy formulated by the
respondent no. 1 for growth of tourism by setting up theme/
amusements parks - Policy laid down conditions and incentives,
available to theme parks - Thereafter, proposal by the petitioner
for recognition of its project as a theme based mall - Petitioner
then sought conversion of the subject land from leasehold to
freehold - Non-acceptance of the proposal of the petitioner to
convert subject land from leasehold to freehold as per the policy
formulated and thereafter amended - Challenge to - Held: When
the land had already been leased to the petitioner and the petitioner
is also holding the same as lessee under the lease deeds executed
for the purpose, no reason, justification, logic or rationale that
such leasehold rights be converted into freehold rights - Amended
policy relied upon by the petitioner came into existence only after
second completion certificate had been issued to the petitioner and,
the mall had been put into operation - No stipulation found in the
original policy or its amendment that it could be applied with
retrospective effect and to override the existing legal rights as also
the existing legal obligations - Policy in question with its amendment
is of no application whatsoever in relation to the subject land and
the project - Thus, the claim of the petitioner for freehold rights in
relation to the subject land cannot be accepted - Furthermore, the
petitioner seems to have developed a mall on the subject land through
private investment and there is no participation of the State
[2023] 4 S.C.R. 1053
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Government or any public sector undertaking or any instrumentality
of the State therein - Thus, the claim of the petitioner to seek benefits
flowing from the Office Memo is struck down.
Disposing of the matters, the Court
HELD: 1.1 The entire case of the petitioner-company,
asserting its right to get the subject land converted from leasehold
to freehold, is premised on the policy formulated by the
respondent No. 1 on 06.11.2013 and amended on 03.05.2016.
The petitioner would assume that the said policy with its
amendment is applicable to its project and to the subject land.
This assumption is without any legal basis and the claim of the
petitioner turns out to be hollow and baseless because neither
the original policy formulated on 06.11.2013 nor its amendment
on 03.05.2016 have any application to the subject land or to the
project of the petitioner. [Para 15][1088-F-G]
1.2. The subject land was allotted to the petitioner on
05.08.2006 after acceptance of its offer of allotment of the said
industrial plot by UPSIDC. Clause 14(a) of the allotment letter
dated 05.08.2006 had been clear and unequivocal that land was
allotted on 90 years lease basis. Further, it was provided in clause
10(b) of the allotment letter that tripartite lease deed of the builtup premises would be executed where the allottee of the
developer shall be the lessee; UPSIDC shall be the lessor; and
the developer (the petitioner) shall be a confirming party. The
lease deed dated 23.08.2006 in relation to 37208 sq. mtrs. of the
allotted land carried the covenants, inter alia, that the lessee (the
petitioner) will not, without the consent of lessor (UPSIDC),
transfer, sublet, relinquish, mortgage or assign its interest in the
demised premises or in the buildings standing thereon with the
other requirements [vide clause 3 (j)]. It was also stipulated that
the allottee shall have to abide by the general terms and conditions
of allotment of UPSIDC [

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BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
v.
STATE OF UTTAR PRADESH AND ANR.
(Transferred Case (Civil) No. 82 of 2022)
MARCH 17, 2023
[DINESH MAHESHWARI AND J. K. MAHESHWARI, JJ.]
Lease: Conversion of land from leasehold to freehold in view
of policy formulated by the State - Entitlement to - On facts,
allotment of commercial plots to the petitioner company by the State
Industrial Development Corporation-UPSIDC, land allotted on 90
years lease basis - Building plan for construction over allotted
land sanctioned - Construction completed and issuance of partial
completion certificate - Thereafter, policy formulated by the
respondent no. 1 for growth of tourism by setting up theme/
amusements parks - Policy laid down conditions and incentives,
available to theme parks - Thereafter, proposal by the petitioner
for recognition of its project as a theme based mall - Petitioner
then sought conversion of the subject land from leasehold to
freehold - Non-acceptance of the proposal of the petitioner to
convert subject land from leasehold to freehold as per the policy
formulated and thereafter amended - Challenge to - Held: When
the land had already been leased to the petitioner and the petitioner
is also holding the same as lessee under the lease deeds executed
for the purpose, no reason, justification, logic or rationale that
such leasehold rights be converted into freehold rights - Amended
policy relied upon by the petitioner came into existence only after
second completion certificate had been issued to the petitioner and,
the mall had been put into operation - No stipulation found in the
original policy or its amendment that it could be applied with
retrospective effect and to override the existing legal rights as also
the existing legal obligations - Policy in question with its amendment
is of no application whatsoever in relation to the subject land and
the project - Thus, the claim of the petitioner for freehold rights in
relation to the subject land cannot be accepted - Furthermore, the
petitioner seems to have developed a mall on the subject land through
private investment and there is no participation of the State
[2023] 4 S.C.R. 1053
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Government or any public sector undertaking or any instrumentality
of the State therein - Thus, the claim of the petitioner to seek benefits
flowing from the Office Memo is struck down.
Disposing of the matters, the Court
HELD: 1.1 The entire case of the petitioner-company,
asserting its right to get the subject land converted from leasehold
to freehold, is premised on the policy formulated by the
respondent No. 1 on 06.11.2013 and amended on 03.05.2016.
The petitioner would assume that the said policy with its
amendment is applicable to its project and to the subject land.
This assumption is without any legal basis and the claim of the
petitioner turns out to be hollow and baseless because neither
the original policy formulated on 06.11.2013 nor its amendment
on 03.05.2016 have any application to the subject land or to the
project of the petitioner. [Para 15][1088-F-G]
1.2. The subject land was allotted to the petitioner on
05.08.2006 after acceptance of its offer of allotment of the said
industrial plot by UPSIDC. Clause 14(a) of the allotment letter
dated 05.08.2006 had been clear and unequivocal that land was
allotted on 90 years lease basis. Further, it was provided in clause
10(b) of the allotment letter that tripartite lease deed of the builtup premises would be executed where the allottee of the
developer shall be the lessee; UPSIDC shall be the lessor; and
the developer (the petitioner) shall be a confirming party. The
lease deed dated 23.08.2006 in relation to 37208 sq. mtrs. of the
allotted land carried the covenants, inter alia, that the lessee (the
petitioner) will not, without the consent of lessor (UPSIDC),
transfer, sublet, relinquish, mortgage or assign its interest in the
demised premises or in the buildings standing thereon with the
other requirements [vide clause 3 (j)]. It was also stipulated that
the allottee shall have to abide by the general terms and conditions
of allotment of UPSIDC [vide clause 13]. It appears that in this
lease deed dated 23.08.2006, the stipulation regarding tripartite
lease deed did not as such occur but the said clause 13 made all
the general conditions of allotment binding on the petitioner.
Moreover, in the other lease deed dated 30.03.2009 in relation
to the adjacent plot of land, this stipulation was also inserted in
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clause 3(j). The Court is not entering into the questions relating
to tripartite lease deed in this matter but, this much is apparent
on a comprehensive look at the terms of allotment and the
covenants of lease deeds that the land was allotted to the petitioner
on 90 years lease basis and further treatment of land and built-up
portion thereupon were to abide by those terms and covenants.
It is also clear that possession of the entire parcel of land
comprising the aforesaid two lease deeds, i.e., 40505 sq. mtrs.,
was handed over to petitioner on 31.03.2009 and on 08.10.2009,
the building plan for construction over the aforesaid allotted land
was sanctioned by respondent No. 2 whereafter construction over
an area of 179017.82 sq. mtrs. was completed by the petitioner
for which, a partial completion certificate was issued by
respondent No. 2 on 07.05.2011. Until all this time, there was
nothing existing as regards the policy sought to be relied upon
by the petitioner. [Para 15.1][1088-H; 1089-A-F]
1.3. The policy in question came up for the first time only
on 06.11.2013 and it was formulated essentially for growth of
tourism sector in the State of Uttar Pradesh by setting up theme
parks/amusement parks. The said policy dated 06.11.2013 laid
down conditions and incentives, including exemption from stamp
duty, exemption from tax on construction goods/materials
imported into the State etc., which were available to the theme
parks/amusement parks with minimum area of 300 acres and
minimum capital investment of Rs. 500 crores. Clause 3 of the
said policy, of course, provided that a theme park/amusement
park could be established and operated by private sector, publicprivate partnership or any authority by creating special purpose
vehicle and in that situation all the decisions regarding
assessment of the desired land, selection of the private investor
and implementation of the project were to be taken by the
concerned authority/government body/public undertaking under
its own rules but the Court is unable to find any correlation
whatsoever of this stipulation of the policy with the subject land
that had been given on lease to the petitioner as also with the
project of the petitioner which could never be termed as any
theme park or amusement park. Viewed in this light, the letter
dated 31.01.2015 as sent by the Managing Director of UPSIDC,
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recommending the case of the petitioner to declare its multiplex,
hotel and commercial construction as tourist destination, turns
out to be rather baseless and its accompanying document, stating
the demand of the petitioner to convert the land in question to
freehold, also appears to be wanting in logic. The project of the
petitioner cannot be correlated with this policy dated 06.11.2013,
meant for theme park/amusement park and that too with
involvement of a Government body or an instrumentality of the
Government in selection of the private investor as also with
participation by way of investment upto 20% of the cost of the
land. [Para 15.2][1083-G-H; 1090-A-E]
1.4. On 16.04.2015, respondent No. 2 issued second
completion certificate in respect of the project of the petitioner.
Even until this point of time, there was no amendment to the
policy in question. As regards the amendment of the policy in
question by way of Office Memo dated 03.05.2016, of course, the
policy to promote tourism was modified so as to grant certain
other concessions and was also expanded to include theme-based
mall but then, such broadening of the policy came with typical
and peculiar stipulations. A Committee was put in place for giving
recommendations for permissions in the matters related with
theme-based mall. Significantly, clause 4 of the original policy
was modified in the manner that for theme-based mall, the limit
of partnership of public enterprise/company of the State
Government was changed from 20% of the maximum cost of land
to minimum 20% of cost of land; and it was provided that the
working agency will provide freehold to the SPV after acquiring
the land as per the rules, for which freehold charge will be payable.
These stipulations occurring in the said Office Memo dated
03.05.2016 make it more than clear that as regards theme-based
mall a minimum of 20% of the partnership of the State Government
or its instrumentality was stipulated; and such instrumentality of
the State Government was also referred to as the working agency,
which was to provide freehold land to the SPV to be created for
the purpose. The petitioner seems to have developed a mall on
the subject land and, as per the suggestions made in the referred
communications, seems to have provided certain facilities to make
it attractive but fact of the matter remains that the project has
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been implemented by the petitioner through private investment
and there is no participation of the State Government or any public
sector undertaking or any instrumentality of the State therein.
That being the position, claim of the petitioner to seek benefits
flowing from the Office Memo dated 03.05.2016 falls flat and is
knocked to the ground. [Para 15.3 & 15.4][1090-E-H; 1091-AC]
1.5. No SPV has been created in relation to the project of
the petitioner with involvement of the State Government or any
of its agencies/instrumentalities. Which particular agency is, then,
to be termed as "working agency" for the purpose of the Office
Memo dated 03.05.2016 remains a question inexplicable. If the
stretch of arguments of the petitioner seeking freehold land is
taken into consideration, only UPSIDC could be termed as
"working agency" for the present purpose but then, there is no
partnership of UPSIDC in this project. [Para 15.4.1][1091-D-E]
1.6. The subject land was specifically leased to the petitioner
for a period of 90 years in terms of the allotment letter dated
05.08.2006 and then lease deeds were executed on 23.08.2006
and 30.03.2009. The construction was undertaken by the
petitioner over part of the land in question where partial
completion certificate was issued on 07.05.2011 and second
completion certificate was issued on 16.04.2015. Several
significant consequences follow from this status of record. In the
first place, when the land had already been leased to the petitioner
and the petitioner is also holding the same as lessee under the
lease deeds executed for the purpose, there does not appear any
reason, justification, logic or rationale that such leasehold rights
be converted into freehold rights. Secondly, the amended policy
which is sought to be relied upon by the petitioner came into
existence only after second completion certificate had been issued
to the petitioner and, as per the petitioner's own assertions, the
mall had been put into operation. No stipulation is found in the
original policy or its amendment that it could be applied with
retrospective effect and to override the existing legal rights as
also the existing legal obligations. [Para 15.5][1091-F-H; 1092A]
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1.7 Viewed from any angle, even on direct construction of
the relevant clauses vis-à-vis the subject-matter of the present
petition, it remains beyond a shadow of doubt that the policy in
question with its amendment is of no application whatsoever in
relation to the project in question. Therefore, the claim of the
petitioner has rightly been rejected. [Para 15.6][1092-B-C]
1.8. In relation to the relied upon letter dated 31.01.2015
sent by the Managing Director of UPSIDC, recommending the
case of the petitioner to declare its multiplex, hotel and
commercial construction as tourist destination, the same had been
wholly baseless and rather unwarranted. Its accompanying
document carrying the demands of the petitioner for various
grants and exemptions as also for converting the subject land to
freehold was also without any legal basis. At the relevant point of
time, the policy in question only related to theme parks/
amusement parks and it is difficult to see even a logic that the
said Managing Director chose to forward the proposition of the
petitioner for consideration of the State Cabinet. In any case, the
said letter dated 31.01.2015 was only recommendatory in nature;
and even the recommendation had only been to declare the places
as tourist destination and to give exemption. The Managing
Director of UPSIDC could neither have recommended for
converting the land to freehold nor did he do so. The said letter
is of no relevance whatsoever. [Para 16][1092-C-F]
1.9. The letter/communication dated 16.09.2016, which had
been a communication received by the petitioner from the
Director General Tourism. The petitioner has described this letter
as one of "approval" and has framed the relief in the writ petition
on that basis. During the course of submissions too, substantial
reliance has been placed on this letter/communication dated
16.09.2016 and the same has been termed as a letter of "approval/
qualification." As would appear from the record, the petitioner
addressed various communications on 12.12.2016, 30.05.2017
and 19.02.2018 to UPSIDC while asserting that the mall in
question had already been declared as theme-based mall and the
petitioner-company is entitled to get the subject land converted
from leasehold to freehold. [Para 17][1092-F-H]
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1.10. Whatsoever had been the composition of the
Committee, it could have only made recommendation for final
decision by the competent authority. Merely for presence of the
Principal Secretaries of the Departments concerned in the
Committee, it cannot be held that its recommendation itself would
become a binding decision. Moreover, a close look at the said
communication dated 16.09.2016 makes it evident that even the
recommendation had only been to approve the proposal 'as a
theme-based mall.' It is too far-stretched to read this
communication as if the Committee had recommended for grant
of freehold rights. Providing freehold land for the purpose of
setting up a theme-based mall had entirely different requirements
and had been of entirely different connotations under the
amendment Memo dated 03.05.2016. In composition of the said
Committee, there was no representative of the agency/
instrumentality directly concerned with the subject land i.e.,
UPSIDC. Any suggestion or recommendation in relation to the
subject land as also the lease deeds already executed between
the petitioner-company and UPSIDC could not have been made
without taking into account the stand of UPSIDC. After passing
of orders dated 20.10.2021 and 13.12.2021 by this Court in W.P.
(Crl.) 242 of 2019, the matter was indeed examined by the
Industrial Development Section-4 of the Government of Uttar
Pradesh where the director of the petitioner-company was
afforded the opportunity of personal hearing on 19.01.2022
through video conferencing and his further representation sent
through email on 21.01.2022 was also taken into consideration
while passing the impugned order dated 24.01.2022. [Para 17.1
& 17.2][1093-C-G]
1.11. Viewed from any angle, even on direct construction
of the relevant clauses vis-à-vis the subject-matter of the present
petition, it remains beyond a shadow of doubt that the policy in
question with its amendment is of no application whatsoever in
relation to the project in question. Therefore, the claim of the
petitioner has rightly been rejected. The policy in question cannot
be applied in relation to the subject land. Therefore, there is no
necessity to delve further into the other issues raised on behalf
of the respondent No. 2 that it has no policy to grant freehold
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rights in its allotments. Suffice it would be to say for the present
purpose that the claim of the petitioner for freehold rights in
relation to the subject land cannot be accepted. [Para 15.6 and
18][1092-B-C; 1093-H; 1094-A-B]
1.12 The writ petition filed by the petitioner-company in
the High Court is dismissed; and the first prayer in Crl. M.P. as
regards directions for converting the subject land from leasehold
to freehold, is also rejected. [Para 20][1094-D]
CIVIL ORIGINAL JURISDICTION: Transferred Case (Civil)
No. 82 of 2022.
Civil Miscellaneous Writ Petition No.3790 of 2022 in the High
Court of Judicature at Allahabad.
Shyam Divan, Sr. Adv., Vishal Gosain, Viresh B. Saharya, Akshat
Agarwal, Ms. Rudrani Tyagi, P. Sharma, Manoj K. Mishra, Mareesh
Pravir Sahay, Advs. for the Petitioner.
K. M. Nataraj, ASG, Vinod Diwakar, AAG, A N S Nadkarni, Ravi
Mehrotra, Ms. Meenakshi Arora, Devdutt Kamath, Sr. Advs., Chirag
M. Shroff, Apoorv Srivastava, Ms. Ruchira Gupta, Ms. N. Shah, Ms.
Deepti Arya, Ms. Harshita Sharma, Jogy Scaria, Garvesh Kabra, B. N.
Dubey, Dhawan Uniyal, Ms. Ranjana Narayana, Rajan Kumar Chourasia,
Mohammed Akhil, Shailesh Madhiyal, Sughosh Subramanyam, Nakul
Chengappa K. K., Arvind Kumar Sharma, Suryajyoti Singh Paul, Rohit
Singh, Gopal Jha, Gopal Prasad, Parijat Kishore, Guntur Pramod Kumar,
Prem Prakash, Arjun Nanda, Sumeer Sodhi, Ravinder Kumar Yadav,
Ms. Shuchi Singh, Krishna Kant Dubey, Vivek Kumar Pandey, Rakesh
Kumar Tewari, Sanjay Kumar Dubey, Binod Kumar Singh, Aman Kumar,
Ms. Nidhi, Sarthak Arora, Mohit Girdhar, Shree Pal Singh, Ms. Basuri
Swaraj, Amit Sharma, Varun Chopra, Sriram Parakkat, Vishnu Sankar,
Ms. Athira Nair, Aditya Santhosh, M/s Lawfic, Gaurav Sharma, Avinash
Sharma, Abhinav Jain, Ms. Preeja Nair, Prakash Chandra Sharma,
Rajeev Singh, Manoj K. Mishra, M/s. V. Maheshwari & Co., Sanjay
Kumar Tyagi, Hitesh Kumar Sharma, S. K. Rajora, Akhileshwar Jha,
Ms. Kavya S. Lokande, Ms. Niharika Dewivedi, Narendra Pal Sharma,
C. M. Jha, Ms. Manju Jetley, Mrs. Swarupama Chaturvedi, Varun K.
Chopra, M/s. Vkc Law Offices, Dr. Monika Gusain, S. K. Verma, Vishal
Prasad, Shree Prakash Sinha, Rakesh Mishra, Ms. Mohua Sinha,
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Nawalendra Kumar, Rishabh Gupta, Shekhar Kumar, Himanshu
Bhushan, J. B. Pathak, Kumar Mihir, Ms. Garima Bajaj, Raghavendra
Mohan Bajaj, Vivek Narayan Sharma, Mohit D. Ram, Anish R. Shah,
Krishnamohan K., Advs. for the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
1. In this transferred case, registered on withdrawal of a writ
petition filed by the petitioner in the High Court of Judicature at Allahabad
(Writ Petition No. 3790 of 2022) to this Court, the petitioner-company
has challenged the order dated 24.01.2022 issued by respondent No. 1
in not accepting its proposal to convert the subject land from leasehold
to freehold as per the policy formulated on 06.11.2013 and amended on
03.05.2016.
2. In the writ petition so filed in the High Court and transferred to
this Court, the petitioner has sought the reliefs in the following terms: -
"a. Issue a writ, order or direction in the nature of certiorari quashing
the impugned order dated 24.01.2022 passed by Respondent No.1
(Annexure-11) to the writ petition and directing the Respondent
No.2 to grant freehold plot no. SH-3, Surajpur Site-IV in the light
of approval dated 16.09.2016 extending benefits of Government
Orders dated 06.11.2013 and 03.05.2016.
b. To pass such other and further order, which this Hon'ble court
may deem fit and proper in the circumstances of the present case.
c. Award the cost of the present petition to the Petitioner."
3. The relevant background and factual aspects leading to this
writ petition and its transfer to this Court could be taken into comprehension
as follows1:
3.1. On 05.08.2006, the petitioner-company's offer (bid) for
allotment of commercial Plot No. SH-3 in Industrial Area Site-IV,
Surajpur, District Gautam Budh Nagar, Uttar Pradesh with approximate
1 The extractions herein are essentially taken from IA No. 15392 of 2022 and IA No.
156279 of 2022 filed by the petitioner for placing on record the English translation of
the documents sought to be referred, as also from the documents filed with the writ
petition.
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area 37500 sq. mtrs. came to be accepted by the Uttar Pradesh State
Industrial Development Corporation2-3 and, accordingly, the allotment
letter was issued in favour of the petitioner stating the terms and conditions
of this allotment, including that the land was being allotted on 90 years
lease basis. A few relevant stipulations in this allotment letter dated
05.08.2006 read as under: -
" ****
 ****
****
9. The Possession of Land will be handed over/delivered to you
after payment of 25% of total amount (as per bid) and after
Execution of Lease Deed with the Corporation. The allottee/
Developer will have to take possession after execution of lease
deed within three months from the date of allotment letter failing
which plot is liable to cancelled.
10. a.
The allottee shall have the right to sell of the built
up portion to any person for its choice for first
such transfer no levy shall be charged by UPSIDC.
b.
The triparite Lease Deed of the built-up premises
shall be executed by UPSIDC Ltd., with the
ultimate allottees of Developer on the request of
the developer in writing.
In Triparite lease deed, the allottee of developer
shall be the lessee, the UPSIDC Ltd., will be the
lesser and the developer shall be a confirming party.
The UPSIDC will be transferring the proportionate
undelivered interest in the land while the developer
will be transferring the interest in the built-up space.
c.
The Lease Deed of a built-up space will be
executed only after the corporation has given
completion certificate. For that built up space.
****
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****
14. (a)
The land is allotted on 90 years lease basis which
has to be specified to its tenants/Co./Owners
2 'UPSIDC', for short.
3 This Corporation is now known as Uttar Pradesh State Industrial Development
Authority ('UPSIDA', for short) and is impleaded as respondent No.2 as such. However,
for continuity of discussion herein, respondent No. 2 is also referred to as 'UPSIDC'.
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(b)
The Lease Deed will be executed by the
corporation directly with the various persons on
the recommendation made by you without any
transfer charges. On the subsequent transfer of
the premises/plot, levy as per the prevailing rules
of the corporation at that time will be charged.
****
 ****
****
3.2. It appears that the actual measurement of the land so allotted
stood at 37208 sq. mtrs. and lease deed was executed in favour of the
petitioner on 23.08.2006 with reference to this actual measurement. A
few relevant clauses of this lease deed dated 23.08.2006 could be usefully
reproduced as under: -
"3. AND THE LESSEE DOTH HEREBY COVENANTS WITH
THE LESSOR AS UNDER:
.....
(j) That the Lessee will not without the previous consent in writing
of the Lessor, transfer, sublet, relinquish mortgage or assign its
interest in the demised premises or buildings standing thereon or
both as a whole and every such-transfer, assignment, relinquishment
mortgage or subletting or both shall be subject to and the transferees
or assigns shall be bound by all the covenants and conditions herein
contained and be answerable to the Lessor in all respects therefore,
and the Lessee will in no case assign, relinquish, mortgage, sublet,
transfer or part with the possession of any portion less than the
whole of the demised premises or cause any sub-division thereof
by metes and bound or otherwise.
Provided that the joint possession or transfer of possession of
demised premises or any part thereof by the Lessee shall be
deemed to be sub-letting for the purpose of this clause.
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8.
(a)
The Allottee shall have to get building approved
from UPSIDC Ltd. and development works have
to be undertaking as per approved plan.
(b)
The FAR and ground coverage shall be allowed
as per the rules and bye-laws of the UPSIDC Ltd.
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whose prior sanction on Building Plan shall be
sought by allottee at its own cost before making
any construction.
(c)
The land shall be allotted on "as it where it is"
UPSIDC will not responsible for carrying out any
development at any stage except existing
development like Roads and Strom water
drainage.
(d)
All works shall be completed in 05 years from the
date of allotment. Any further extension shall be
as per terms decided by MD, UPSIDC.
(e)
The allottee will have to pay Lease Rent from the
date of Allotment.
9. The allottee shall have to right to sell of the built portion to any
person for its choice for first such transfer no levy shall be charged
by UPSIDC.
10. In case of any dispute between Corporation and Allottee/
Developer, the decision of Managing Director, UPSIDC Ltd., shall
be final and binding on both the parties.
11. The Corporation will have no objection on the request made
by Bidder Company for allowing them 1.8 FAR with 60%
ground coverage subject to the approval of the same by
UPSIDC Ltd.
12. The allottee shall obtain completion certificate from UPSIDC.
13. Allottee will have to abide by general terms and conditions of
Allotment of UPSIDC and also to observe the laws & other rules
and regulation carry out any specific activity from appropriate
Govt. bodies before undertaking such activities. Failure to do so
may result in Cancellation of allotment of the whole plot or part
thereof as UPSIDC deems fit. ......."
3.3. In addition to the aforesaid allotted parcel of land, another
adjacent plot admeasuring 3297 sq. mtrs. was also allotted in favour of
the petitioner, and another lease deed for this additional parcel of land
was executed on 30.03.2009. The relevant clause of the said lease deed
reads as under: -
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"3. AND THE LESSEE DOTH THEREBY COVENANTS
WITH THE LESSOR AS UNDER:
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(j)
(a) The allottee shall have the right to sell of the builtup
portion to any person for its choice for first such
transfer no levy shall be charged by UPSIDC.
(b) The triparite lease deed of the built-up premises
shall be executed by the UPSIDC LTD., with the
ultimate allottees of Developer on the request of
the developer in writing.
In triparite lease deed, the allottee of developer
shall be the lessee, the UPSIDC Ltd., will be lessor
and the developer shall be a confirming party. The
UPSIDC will be transferring the proportionate
undelivered interest in the land while the developer
will be transferring the interest in the built-up space.
(c) The Lease Deed of the built-up space will be
executed only after the corporation has given
completion certificate. For that built up space.
......"
3.4. Thereafter, possession of the entire parcel of land comprising
the aforesaid two lease deeds, i.e., 40505 sq. mtrs., was handed over to
petitioner on 31.03.2009. Then, on 08.10.2009, respondent No. 2
sanctioned the building plan for construction over the aforesaid allotted
land and pursuant thereto, construction over an area of 179017.82 sq.
mtrs. in respect of Basement -1, Basement -2, Ground Floor, First Floor
and Second Floor was completed for which, a partial completion certificate
was issued by respondent No. 2 on 07.05.2011.
3.5. In the chronology of relevant events, it so happened that in
the year 2013, respondent No. 1 formulated a policy for growth of tourism
sector in the State of Uttar Pradesh by setting up theme parks/amusement
parks. The aforesaid policy dated 06.11.2013 laid down conditions and
incentives, including exemption from stamp duty, exemption from tax on
construction goods/materials imported into the State etc., which were
available to the theme parks/amusement parks with minimum area of
300 acres and minimum capital investment of Rs. 500 crores. The said
BHASIN INFOTECH AND INFRASTRUCTURE PRIVATE LTD.
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policy of the respondent No. 1, essentially to promote tourism in the
State, as spelt out in the communication dated 06.11.2013 from the
Secretary concerned to all the Principal Secretaries and other officers
of the Government of Uttar Pradesh, reads as under: -
"Subject: To promote tourism in the state To decide the
policy for setting up theme park/amusement park etc.
Sir, tourism industry is not covered by the State's Establishment
and Industrial Investment Policy-2012. In this sequence, I have
been directed to say that in view of the need to set up an amusement
park in the state for the purpose of Encourage the Tourism, a
policy has been laid down for the establishment of theme park/
amusement park etc. after dueconsideration, It has been decided.
The above policy is as follows:
1. Theme Park I Amusement Park etc. will be set up under the
Uttar Pradesh Town Planning and Development Act, 1973 and
various planning Acts in accordance with the prescribed procedure
for agricultural land use. For this, necessary provisionsIamendments
will be made in the Zoning Regulations for the establishment of
theme parks I amusement parks in the proposed agricultural land
use in the master plans of the notified areas under various planning
acts.
2. Large projects like theme parks/amusement parks have high
initial capital investment and become profitable only after a long
period of time and a large number of local people are employed in
such projects, so incentives are given to encourage such projects,
decision has been taken. In the light of the above, the following
incentives are allowed in respect of large projects of theme park
/amusement park etc.:
(1) Purchase or lease of land for the project from the StateI Central
Government or its owned corporation, council, company, institution
100% exemption in stamp duty will be given on taking it.
(2) For the construction period or 10 years (whichever is less) for
the establishment of the project, 100% exemption will be given in
the tax on the construction goods/materials imported into the state.
(3) From the date of operation of the project, 100% exemption in
entertainment tax will be provided for 10 years.
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(4) For the year from the date of operation of the project, 100%
exemption will be given in the pleasure tax.
The above incentives will be admissible to only those theme park/
amusement park projects, whose minimum area is 300 acres and
in which the minimum capital investment is Rs. 500.00 crores.
3. Theme Park/Amusement Park can be established and operated
by private sector, PPP or any authority by creating an S.P.V. In
such a situation, all the decisions regarding the assessment of the
desired land, the selection of the private investor and the
implementation of the project after the selection will be taken by
the concerned authority/government body/public undertaking under
its own rules.
4. Participation in such a scheme can be done by any public
undertaking of the state government/S.P.V. or company. This
participation will be limited to a maximum of 20 percent of the
cost of the land required for the project of Theme Park/
Amusement Park, which will continue till the completion of the
project. The concerned government body/establishment/ public
undertaking will spend its share capital (20 percent) as a partner
of SPV, first on land acquisition, so that the investor can be assured
of the availability of land. Only after that Capital investment will
be decided. After the completion of the project, the disinvestment
will be done as per the pre-determined agreement.
5. Under the proposed theme parkIamusement park, all the
development, display, buildings and activities, etc. will be based
on a central theme or theme, and depending on the theme, there
should be different types of theme parks at different places. Theme
ParkIAmusement Park will have a minimum area of 300 acres
and can be established at such sites, where there is a facility of
access from major roads (such as national highways, expressways,
etc.) and water supply, drainage, 'solid waste disposal' for the
selected site. And proper arrangement of power supply should be
available.
(a)
Under the theme parkIamusement park, in addition to the
basic works related to the theme park, other activities such
as convention center, hotel, shopping complex, restaurant,
film studio, multiplex, senior shop, workshop, accommodation
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for employees etc. will be included. The permission for theme
parkIamusement park will be normally payable in the
proposed agricultural land use in the master plans of the
notified areas under various planning acts in the state, for
which necessary provisionI amendment will be made in the
master plan, zoning regulations of urban areas and industrial
areas. Theme ParkIAmusement Park can also be
established in the agricultural area outside the Master
PlanNotified Area, for which there will be UPSIDC
Regulatory Authority.
(b)
Under Theme ParkIAmusement Park, activities related to
theme parkIentertainment will be allowed in minimum 75
percent area, while mixed use (such as residential,
commercial, institutional, community and public facilities,
etc.) will be allowed on maximum 25 percent part. The
average FAR for the theme park is 0.5 over the entire plan
area. And 20 percent ground coverage will be admissible.
(c)
DPR of Theme ParkIAmusement Park. And the integrated
layout plan will be approved by the concerned government
agency. The internal and external development work of the
project will be done by the developer himself. In view of
the above, development fee will not be payable by the
developer to the government agency.
6. In the event of the implementation of the theme park project
being done through the process of PPP/SPV, application for
approval of the layout of the theme park project and building plan
etc. For the construction and operation of the theme park, S.P.V.
or P.P.P. will be done with the prior permission of the government
partner.
7. The said policy of theme park will be applicable in the entire
state. Development Authorities have been established under the
Uttar Pradesh Town Planning and Development Act-1973 and
Uttar Pradesh Industrial Area Development Act-1976. Therefore,
instructions will be issued to the subordinate development
authorities and public undertakings by the Housing and Urban
Planning Department and the Department of Infrastructure and
Industrial Development to implement the policy of the above theme
parkIamusement park.
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8. Hon'ble Chief Minister has been authorized to take necessary
decisions to implement the above proposed policy."
3.6. In view of the aforesaid policy dated 06.11.2013, petitioner
made a request to respondent No. 2 to recognise the project land as
tourist destination whereupon, the Managing Director of UPSIDC wrote
a letter dated 31.01.2015 to Principal Secretary (Tourism), Government
of Uttar Pradesh, recommending that the said project of the petitioner
be declared as tourist destination and be provided with necessary
exemption. It was further stated that probably, the final decision on the
subject shall be taken by the State Cabinet and hence, the necessary
material for its consideration was also enclosed. The said letter dated
31.01.2015 reads as follows: -
"Investment of about Rs. 800 crores by Bhasin Infotech &
Infrastructure Pvt Ltd on Plot No. SH-2 of Surajpur Site-4 Greater
Noida, Industrial Area of Corporation while doing the construction
of a multiplex commercial and hotel in the name of Grand Venice,
which has been greatly appreciated by the tourism point of view.
On the request of the developer company, investment of more
than Rs. 500 crores and employment availability and for the
purpose of promoting tourism and in order to make their project
run smoothly, it is recommended to declare the place as a tourist
destination, to give exemption to them. Possibly the level of the
above decision will be of the State Cabinet, so the necessary
material is being enclosed for the cabinet note.
Therefore, it is kindly requested to take necessary action on the
above."
3.6.1. We may also take note of a document placed on record
with IA No. 156279 of 2022, said to be the part of material sent with the
aforesaid letter dated 31.01.2015. It seems to be the justification in making
the recommendations aforesaid and reads as under: -
"IN CONNECTION WITH DECLARING THE GRAND
VENICE (GREATER NOIDA, GAUTAM BUDDHA
NAGAR) AS A TOURIST DESTINATION,
A commercial plot allotted by Uttar Pradesh State Industrial
Development Corporation to M/s Bhasin Infotech & Infrastructure
Pvt. Ltd. Multiplex, Commercial and Hotel has been constructed
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by investing about Rs. 800.00 crores, which will provide
employment to about 5000 people. The Grand Venice is a very
timely and convenient place from the point of view of tourism.
The Grand Venice has been developed by the developer to attract
international and domestic tourists in such a way that its unique
architecture, entertainment and geography and community will
be the only place to visit. It is conveniently located near Greater
Noida Express Way and due to its special location, it will also
become a suitable destination for tourists going from Delhi to Agra.
In this project, special care has been taken for educational tourism
while presenting something to the tourists of all age groups and
preferences. An attempt has been made by the developer to
embellish the grandeur and elegance of the famous Italian city of
Venice in The Grand Venice. This Venetian themed remoteness
hub will prove to be a center of special attraction with stunning
structures and sculptures. A ride on the
Gondola in the water canals built inside Mall will provide a real
experience of doing the traditional Gondola fanciers walking along
the beautiful waterways of the city of Venice. Similarly, through
Magic Sky, an attempt has been made to provide the experience
of walking under the virtual sky giving a glimpse of the environment
and weather and the unique environment. In The Grand Venice,
the famous unique feature of Venice is the Fountain de Trevi,
Julius Caesar's Statue, Light House, Pisa's Tower and other art
forms of ltaly have been presented. Along with this, the Indian
Sea world has also been displayed in an area of about 100000
square feet and for the convenience of the tourists, the five-star
deluxe Sheraton Hotel with 270 rooms has also been included in
this complex. Places have been identified for setting up ·of outlets
to display the heritage and handicrafts of Uttar Pradesh, along
with the above features, the project like promotion of tourism and
providing employment to 5000 people along with capital investment
of more than 500 crore rupees.