Summary
A developer holding industrial plots in Greater Noida on ninety-year leases, on which it built a Venice-themed mall completed by 2015, sought conversion of the land to freehold under the Uttar Pradesh tourism policy of 2013 for theme parks, as amended in 2016 to include theme-based malls, relying on a committee's recommendation approving the project as a theme-based mall; the State declined. In the transferred writ petition the Supreme Court upheld the refusal: the policy has no application to land leased and built upon before it existed, it contemplates a special purpose vehicle with at least twenty per cent State participation and freehold grant after acquisition, neither of which exists here, the recommendations did not extend to freehold, and the policy cannot override the terms of allotment and lease covenants.
Issues
- Whether a lessee of industrial plots allotted on ninety-year lease in 2006 and developed as a commercial mall is entitled to conversion of the land from leasehold to freehold under the State's 2013 tourism policy for theme parks as amended in 2016 to include theme-based malls.
Provisions considered
- Clauses 2 to 5 of the 2013 policy and clauses A(5), B and D of the 2016 amendment, Uttar Pradesh Government Order dated 06.11.2013 and Office Memo dated 03.05.2016 (Tourism policy for theme parks and theme-based malls)The policy offers incentives for theme parks of at least 300 acres with Rs. 500 crores investment, and the 2016 amendment includes theme-based malls, requires a minimum twenty per cent partnership of a State public enterprise and provides that the working agency will give freehold land to the special purpose vehicle after acquisition; none of these stipulations fits a privately funded mall on land already leased. (¶¶ 3.5, 3.8, 15.2, 15.4, 15.4.1)
- Clauses 10(b) and 14(a) of the allotment letter; clauses 3(j), 9 and 13 of the lease deed, Allotment letter dated 05.08.2006 and lease deeds dated 23.08.2006 and 30.03.2009The land was allotted on ninety-year lease, with tripartite lease deeds for built-up premises and the lessee bound by the corporation's general conditions; freehold rights cannot be granted contrary to these terms and covenants. (¶¶ 3.1, 3.2, 3.3, 15.1, 15.5, 19)
Held
- The subject land was allotted in 2006, possession given in 2009, the plan sanctioned the same year and completion certificates issued in 2011 and 2015, all before the policy or its amendment existed; nothing in the policy makes it retrospective or permits it to override existing legal rights and obligations. The project is a privately funded commercial mall with no State participation and no special purpose vehicle, so no agency can be identified as the working agency, and the claim to benefits under the 2016 memo falls flat. (¶¶ 15, 15.1, 15.3, 15.4, 15.4.1, 15.5, 15.6)
- The corporation's 2015 letter recommending tourist-destination status was baseless and only recommendatory, and the 2016 committee communication recommended approval only as a theme-based mall, not freehold rights; the composition of a committee of Principal Secretaries does not convert its recommendation into a binding decision, and it did not include the corporation that owns the land. The petitioner was heard before the reasoned order of 24.01.2022, which calls for no interference; questions about bipartite or tripartite sub-leases are left open for pending proceedings. (¶¶ 13, 16, 17, 17.1, 17.2, 18, 20)
Result
Transferred Case (Civil) No. 82 of 2022 (Writ Petition No. 3790 of 2022 of the Allahabad High Court) dismissed without costs; State order dated 24.01.2022 refusing conversion of Plot No. SH-3, Surajpur Site-IV to freehold upheld; the corresponding prayer in Crl. M.P. No. 99514 of 2021 in W.P. (Crl.) No. 242 of 2019 rejected; the judgment confined to the freehold claim and of no bearing on other pending issues.