- (1.) A writ in the nature of certiorari is prayed for to quash the order, dated 13.03.2015 (Annexure P23), rendered by the Estate Officer, UT, Chandigarh (respondent No.4), vide which claim of petitioner No.1 (Foreign Company) to transfer the site (Built to Suit Site) allotted thereto, at Rajiv Gandhi Chandigarh Technology Park, in the name of its Indian subsidiary company (petitioner No.2), has since been declined.
(2.) A brief narration of facts that have led the parties to the current stage shall be expedient.
(3.) Petitioner No.1 i.e. PCC Technology Group, 2-Barnard Lane, Bloomfield, USA, is an American company and all its operations are confined within the United States of America. The entire equity of the company is held by its two Directors i.e. Mr. Jerry Wayne Long and Mr. Gurpreet Singh. Whereas petitioner No.2 i.e. M/s PCC Technology Pvt. Ltd. is registered with the Registrar of Companies in India and is a fully owned subsidiary of petitioner No.1. Chandigarh Administration invited Expression of Interest for allotment of Small Campus, and Built to Suit Sites (on lease hold basis), at Rajiv Gandhi Chandigarh Technology Park, to IT enterprises engaged in software development, vide a press release dated 20.02.2008 (Annexure P1). Three built to suit sites in Phase I (Non SEZ area) and equal number of sites in Phase II (SEZ area) were offered for allotment. Requisite details as regard the area of each site, consideration amount and the eligibility criteria for allotment was duly set out in the publication itself. In response, petitioner No.1 (Foreign Company), vide its application dated 18.02.2008 (Annexure P2), applied for allotment of a 'Built to Suit Site' in Phase-I (Non-SEZ Area). A committee constituted by the Administration, for evaluating the eligibility of the applicants, found nine of the fifteen applicants to be eligible for SEZ area, and nine of fourteen for the Non-SEZ area, including the petitioner No.1 (Foreign Company). For, the number of eligible applicants were far more than the sites available in each of the areas, the Committee proposed a draw of lots to carry out allotments. Petitioner No.1 (Foreign Company) succeeded in the draw of lots held by the Administration on 23.04.2008. Accordingly, a letter of intent dated 06.05.2008 (Annexure P4), vide which a built to suit site No.C-4, measuring 1.10 acres, was proposed to be allotted, was issued in favour of petitioner No.1 (Foreign Company). The tentative premium of the site was Rs.1,65,89,985/-. In terms of clause 5 of the letter of intent, petitioner No.1 (Foreign Company) was required to remit 25% of the tentative premium i.e. Rs.41,47,496/- and execute an agreement to sell in form 'B' within 30 days from the date of issuance of the said letter. And, clause 6 required the remaining 75% of the consideration to be furnished within 90 days of the issuance of the allotment letter. Clause 7 envisaged a lease deed, in form 'D', appended with the Chandigarh Estate Rules, 2007, to be executed within 30 days from the date of issuance of the allotment letter. And, in terms of clause 8, possession of the site was to be delivered within 15 days of the execution of the lease deed. Vide letter, dated 27.05.2008 (Annexure P5), petitioner No.1 (Foreign Company) sought a clarification from the authorities; if a formal letter of allotment could actually be issued in the name of its fully owned Indian subsidiary company (petitioner No.2), for to acquire any immoveable property in India, it was necessary for a foreign company to seek permission from the Reserve Bank of India (RBI). And, even the Director Information Technology (respondent No.3), vide its letter dated 28.07.2008 (Annexure P6), conveyed to the Finance Secretary that it would be difficult for the foreign based IT companies to start their business operations in India, and to avail certain tax benefits under the Software Technology Park India (STPI) or SEZ schemes, they shall have to seek STPI registrations. However, that too could be possible, if these companies incorporate Special Purpose Vehicles (SPVs) i.e. their wholly owned Indian subsidiary companies. Accordingly, it was suggested that the foreign based companies be permitted to transfer the sites in the names of their Indian subsidiary companies subject to the same terms and conditions. But, for the petitioner No.1 (Foreign Company) deposited 25% of the tentative premium of the site, and executed an agreement to sell, in terms of letter of intent, a regular letter of allotment, dated 17.03.2009 (Annexure P7), was issued in its favour. Petitioner No.1 (Foreign Company) complied with all the terms of allotment. And vide letter, dated 07.12.2011 (Annexure P9), even the site plans submitted by petitioner No.1 (Foreign Company), to construct the allotted site, were sanctioned/approved by the Special Project Approval Committee. Records show, for the Administration had acceded to the request of two other foreign companies, namely, M/s Damco Solutions UK Ltd. and M/s Silicon Valley Systech Inc, to issue a formal letter of allotment in the names of their Indian subsidiary companies, a joint recommendation was made by the Joint Secretary, Finance and the Director, Information & Technology, vide letter dated 29.11.2011 (Annexure P10) for according approval to a similar request of another foreign company i.e. M/s 22nd Century Technologies Inc. It was also proposed that petitioner No.1 be also informed of the requirements for transfer of ownership of its site to its Indian subsidiary company. It appears that, as a consequence, petitioner No.1 (Foreign Company), once again, vide letter dated 05.02.2012 (Annexure P11), required respondent No.3 to substitute the name of its Indian subsidiary company in its place. For, the representation of petitioner No.1 (Foreign Company) failed to evoke any response, a writ petition bearing CWP No.23349 of 2013 was filed before this court, which was disposed of, vide order dated 24.10.2013 (Annexure P22), with a direction to the Estate Officer, UT, Chandigarh to consider and decide the claim of the petitioner.;