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TMI Blog2000 (5) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... P Act to the appellant-Board. 2. Before deciding the question involved, we would narrate few facts of each appeal. Civil Appeal No. 14994 of 1996 [arising out of RTPE No. 100 of 1994] 3. It is admitted that the Rajasthan Housing Board is established under the provisions of the Rajasthan Housing Board Act, 1970 and it builds houses and allots the same to persons who are registered with the Board under various schemes framed by it from time to time. The land is placed at the disposal of the Board by the State Government on payment being made by it and houses of different categories are constructed after securing loans from HUDCO and other agencies under the schemes known as self financing schemes. It is stated that respondent got herself registered for the house being allotted to her in low income group category on 12-5-1983 and paid a sum of Rs. 1,800 as registration fee. It is also stated that the Board has issued a brochure for general registration, wherein certain conditions for registration, the amount of advance which was to be deposited by the applicant, the estimated cost of different categories of the house to be constructed and the amount of instalment money which was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed the Board to file an affidavit to the effect that it would not repeat the same. Against that judgment, this appeal is filed. Civil Appeal No. 15096 of 1996 [arising out of UTPE/RTPE No. 15 of 1994] 6. In this appeal, it is the case of respondent that the Board registered him as applicant under self-financing scheme and he deposited a sum of Rs. 10,000 at the time of initial registration with the Board. By letter dated 6-2-1988, the Board informed the respondent that a house, as opted by him, had been reserved and he was asked to deposit the various instalments indicating amount and due dates. On 5-2-1992, the Board informed the respondent that he should deposit a sum of Rs. 1,10,714 as the remaining amount towards the cost of house (measuring 12 x 18 mt.) that had been allotted to him. The respondent was given three months time to deposit the amount and take the possession of the house by 9-5-1992. It is stated that instead of depositing the amount he filed Writ Petition No. 2682 of 1992 in the High Court of Rajasthan at Jodhpur challenging the demand for the balance amount as alleged. During the pendency of the writ petition, the respondent filed a complaint under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said sub-clause, namely, "services in such manner as to impose on the consumers unjustified costs". In our view, the Commission ought to have read the said part along with the main ingredient which requires that a trade practice which has or may have the effect of preventing, distorting or restricting competition in any manner would be restrictive trade practice and in particular which, inter alia, tends to bring about manipulation of "services in such manner as to impose on the consumers unjustified costs". For this purpose no case is made out by the respondents that the Board has prevented or restricted competition in any manner which affects the services in such a manner as to impose on consumers unjustified costs or restrictions. Section 2(o) will not be applicable in case where a trade practice has no effect, actual or probable of preventing, distorting or restricting competition in any manner. 10. This question is considered in detail by this Court in Mahindra & Mahindra Ltd. v. Union of India [1979] 2 SCC 529. In this case the Court observed that : "14. It is now settled law as a result of the decision of this Court in the (Telco case) Tata Engineering & Locomotive Co. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractice . . . . there may be trade practices which are such that by their inherent nature and inevitable effect they necessarily impair competition and in case of such trade practice, it would not be necessary to consider any other facts or circumstances, for they would be per se restrictive trade practices. Such would be the position in case of those trade practices which of necessity produce the prohibited effect in such an overwhelming proportion of cases that minute inquiry in every instance would be wasteful of judicial and administrative resources...." [Emphasis supplied] (p. 559) 11. In the present case, there is no allegation or evidence to hold that the appellant has indulged in restrictive trade practice. In this view of the matter the learned counsel for the respondents were not in a position to support the said finding. Hence, the direction given by the Commission that the appellant shall discontinue alleged restrictive trade practices and not repeat the same in future and shall file an affidavit in compliance within six weeks from the date of the order passed in both the matters requires to be set aside. Contention 'B' 12. The learned counsel for the appellant next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd out whether the appellant has indulged in unfair trade practices so as to take any further action against the Board on the basis of the applications filed by the respondents in each case. 15. For deciding such question, the Commission has to find out whether a particular act can be condemned as an unfair trade practice; whether representation contained a false statement and was misleading and what was the effect of such a representation made to the common man. The issue cannot be resolved by merely holding that representation was made to hand over the possession within stipulated period and the same is not complied with or some lesser constructed area is given after the construction of the building. The Commission has to find out whether the representation, complained of, contains the element of misleading the buyer and whether buyers are misled or they are informed in advance that there is likelihood of delay in delivering the possession of constructed building and also increase in the cost. For this purpose, terms and conditions of the agreement are required to be examined by the Commission. Not only this, the Commission is required to consider whether the Board has adopted u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has not considered the necessary evidence and has accepted the plea of the respondent in arriving at the conclusion that the appellant board has indulged in unfair trade practice. We would again note that the Commission was not very clear about the application of the provisions of section 2(o)( ii) and it proceeded on the basis that the said section is also applicable. Further, as there is no proper finding of facts based on necessary evidence, we are of the opinion that the impugned order dated 30-5-1996 passed by the Commission in UTPE/RTPE No. 15 of 1994 holding that the appellant Board has indulged in unfair trade practices under section 36A(1)(i) and (vi) is unsustainable. 18. In the result, the impugned order passed by the Commission in RTPE No. 100 of 1994 holding that the appellant Board has indulged in restrictive trade practices attracting section 2(o)( ii) and further direction is quashed and asset aside. Similarly, the order passed by the Commission in UTPE/ RTPE No. 15 of 1994 holding that the appellant board has indulged in restrictive and unfair trade practices as alleged attracting sections 2(o)( ii) and 36A(i) and (vi ) is quashed and set aside. The matters are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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