- (1.) M/s DLF Universal Limited (first appellant herein) and DLF Qutab Enclave Complex Educational Education Charitable Trust (second appellant herein) have filed this appeal under Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 [hereinafter referred to as 'the MRTP Act'] read with Order XX-A of the Supreme Court Rules, 1966 against the judgment and final order dated 3rd July, 2006 recorded by the Monopolies and Restrictive Trade Practices Commission, New Delhi [for short 'the Commission'] in M.A. No. 14 of 2004 (Review) in UTPE No. 350 of 1997 whereby and whereunder the Commission has directed the appellants to execute fresh lease deed in favour of Raj Kamal, complainant - second respondent herein with amendments suggested by the complainant - second respondent and to incorporate Clause 11(a) and (b) in the agreement to lease dated 1.12.1992 instead of Clause 4 in the draft lease deed which provided for the refund in the event of termination of the lease deed.
(2.) Briefly stated the facts giving rise to the filing of the present appeal are as follows:- M/s DLF Universal Limited is a public limited company registered and incorporated under the Indian Companies Act, 1956. It purchased free hold lands at Gurgaon in the State of Haryana for setting up a colony known as 'DLF Qutab Enclave Complex'. It applied for and was granted licence in terms of the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 [for short 'the State Act']. M/s DLF Universal Limited and other group of companies created DLF Qutab Enclave Complex Educational Charitable Trust wherefor a large number of sites were earmarked for construction of schools/community buildings in the complex. In response to the advertisement issued by the appellants in November, 1991 Raj Kamal, complainant-second respondent applied for and was allotted Nursery School site No. 3136 admeasuring 0.20 acre in DLF Qutab Enclave, Gurgaon. Later on, this site was substituted by another site/plot no. 3101 admeasuring 0.35 acre after charging of extra amount for additional land allotted to him. The complainant-second respondent filed a complaint on 20.6.1997 before the Commission which was referred to the Director General of Investigation and Registration [for short 'the DG'] -first respondent herein. A Preliminary Investigation Report [PIR] was submitted by DG-first respondent on 27th March, 1998 in which it was reported that the appellants have indulged in restrictive and unfair trade practices within the meaning of Section 2(o)(i) and Section 36A of the MRTP Act. Taking cognizance of the PIR on 4.6.1998, the Commission issued notice of enquiry to the appellants. The allegations made in the complaint by the Complainant - second respondent were that the appellants had not handed over the possession of the alternate plot to him on the plea that the Government of Haryana was not recognizing the fourth party rights. During the preliminary investigation, it came to light that at the time of advertisement by the appellants in November, 1991, the title of the sites including the site/plot allotted to the complainant - second respondent was already transferred by the first appellant to the second appellant on 27.11.1990. The first appellant was required to construct at its own cost or get constructed by any other institution or individual at its cost, schools/community buildings etc. on the land transferred to them by the Government of Haryana under Section 3(a)(iv) of the State Act. 25 different sites having a total area of 29,358 acres were earmarked for the purposes of providing educational facilities which were transferred to the second appellant trust for a sum of Rs. 1,05,000/- It was also provided that in case the appellants were unable to construct the said site within the stipulated period, the same would automatically be reverted to the State Government. In the PIR, the following unfair/restrictive trade practices on the part of the appellants have been alleged in this transaction based on the investigation:- (i) The appellants (respondents before the Commission] despite not having the title of the impugned sites issued advertisement in November, 1991 inviting applications for allotment which is a deceptive and unfair trade practice within the meaning of Section 36A of the MRTP Act. (ii) The Trust i.e. appellant No. 2 had leased out the sites to the fourth parties after 7.8.1991 as per statement furnished during investigation by the second appellant to the DG. It is also alleged that the second appellant was not allowed to create fourth party right at the time of issuance of impugned advertisement in November, 1991. This tantamounts to unfair trade practices within the meaning of Section 36A of the MRTP Act. (iii) Second Appellant created fourth party rights after 7.8.91 for a total consideration of over Rs. 1.85 crore as against the nominal cost of Rs. 1,05,000/- paid by them to the first appellant at the time of transfer. The allegation was that in terms of the guidelines issued by the Director, Town and Country Planning, Haryana, Gurgaon [for short 'the DTCP'] vide their letter dated 25.10.1994 this difference of money was to be utilised for the purpose of providing better amenities to the colony and for the benefit of residents therein. It has been alleged in the PIR that the appellants have, therefore, manipulated the prices as well as conditions of delivery of the impugned community sites for the purpose of benefiting the Trust wherein the Directors of the appellant companies were interested. The creation of the fourth party rights in the impugned sites contrary to the guidelines issued by the DTCP is a restrictive trade practice which imposed unjustified cost on the parties to whom fourth party rights has been created by the Trust in connivance with the first appellant. Further, since the Trust have created fourth party rights after 7.8.1991 the said trade practice constitutes deceptive and unfair trade practices within the meaning of Section 36A of the Act. (iv) The transfer deed entered into by the first appellant with the second appellant did not make obligatory on the part of the second appellant to utilize the amount collected as such for the purpose of providing better amenities to the residents of DLF Qutab Enclave. Second Appellant was having a surplus of Rs. 5,489,223.86p. and Rs. 5,729,723.49p. respectively at the end of 31st March, 1996 and 31st March, 1997 respectively. It has, therefore, been alleged that the Trust has manipulated the prices and conditions of delivery of impugned sites for its personal gain which is a restrictive trade practice. (v) Originally site No. 3136 measuring 0.20 acre was allotted to the complainant/informant on consideration of Rs. 4 lakhs and also a lease agreement dated 1.12.92 was entered into for constructing and providing educational facilities by the lessee. Subsequently, however, the appellants offered to the complainant/informant an alternate site measuring 0.35 acre after receiving an additional payment of Rs. 2,96,204/- which tantamount to unfair trade practice since the complainant/informant was not informed that the previous site No. 3136 was subject to the revision of lay out plan. (vi) The appellants raised maintenance bills for the nursery school plot No. 3136 for the period from December, 92 to September, 93 though this plot was omitted in the revised layout plan which is unfair trade practice. (vii) Similarly, appellant-Trust collected lease amount from the complainant/informant for the period from December, 92 to March, 94 in advance without handing over the plot in question to the lessee.
(3.) The appellants in their counter reply to the complaint of the complainant - second respondent inter alia denied the allegations stated in the complaint and maintained that the notice of inquiry and the PIR do not set out the specific and precise allegations of unfair/restrictive trade practices against them. It was also submitted that the appellants had filed writ petition in the High Court of Punjab and Haryana inter alia challenging the letter dated 9.2.1994 issued by the DTCP, whereby the appellants have been restrained from creating and recognising any fourth party rights and the said letter was given retrospective effect from 7.8.1991. The appellants then stated that they are not in a position to handover the possession and the site/plot in the absence of the sanction of the building plans by the authorities. It is also provided under the lease deed entered into between the second appellant - Trust and the allottees that the possession of the site/plot can be given only upon sanction of building plans by appropriate authorities i.e. DTCP. They also stated that the agreement was entered into between the second appellant - Trust and the complainant - second respondent and not by the first appellant. Therefore, there was no privity of contract between first appellant and the complainant-second respondent. On these premises, the appellants submitted that they have not indulged in any sort of unfair trade practices as alleged in the complaint.;