9911796707
TMI Blog2008 (5) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant herein) and DLF Qutab Enclave Complex Educational 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cilities 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 ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evision of lay out plan. ( vi )The appellants raised maintenance bills for the nursery school plot No. 3136 for the period from December, 1992 to September, 1993 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, 1992 to March, 1994 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 possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent which was held up in view of the order passed by the High Court of Punjab and Haryana and since the order of the High Court of Punjab and Haryana has been set aside by this Court in Civil Appeal No. 4908/2002 along with Civil Appeal Nos. 4909-11/2002 titled DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana [2003] 5 SCC 622, therefore, now the appellants are ready and willing to hand over the possession of the site/plot to the complainant-second respondent within six weeks in terms of the agreement dated 1-12-1992. Again on 16-1-2004, the appellants informed the Commission that they will execute a fresh lease deed in favour of the complainant-second respondent provided the commercial terms as contained in the first lease deed dated 1-12-1992 shall not be ordered to be modified or altered or deviated and the appellants will indicate the amount of lease rent which shall be paid by the complainant-second respondent within one week and thereafter the appellants shall sign the modified lease deed and thereafter the possession of the site/plot shall be handed over to the complainant-second respondent. On the basis of the pleadings of the parties, the earli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment new implications are being sought to be brought in which were not contemplated in the agreement dated 1-12-1992. It is, however, seen from the agreement dated 1-12-1992 that the said NOC was issued for the purpose of enabling the complainant/informant for getting the plans and specifications approved. It is also on record that the NOC was issued in favour of the complainant/informant by the respondents and since now the final deed is being proposed to be executed between the parties, there should not be neither any need nor any justification for incorporating this in the draft lease deed in the manner indicated by the complainant/informant. This "No Objection Certificate" was issued on 1-12-1992 with regard to plot No. 3136 measuring 0.20 acres. It is, however, seen from the record that this "No Objection Certificate" issued on 1-12-1992 by the respondents was relating to plot No. 3136 measuring 0.20 acres. The Commission noted that subsequently this plot was changed to plot No. 3101 measuring 0.35 acres after charging extra amount from the complainant/informant. Therefore, technically the NOC issued on 1-12-1992 does not relate to the plot which is proposed to be transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no justification in introducing the amendment to clause 2.3 in the manner suggested by the complainant/informant but at the same time, clause 15 of the draft agreement need to provide for the Arbitration clause as existing in the agreement dated 1-12-1992 and it is directed accordingly. ( c )The complainant has also suggested amendments to clause 4 of the draft agreement in line with clause 11( a )( b ) ( i ) and ( ii ) as appearing in the lease deed agreement dated 1-12-1992 which relates to the period for the completion of the construction of the building and in the event of its failure to construct the school and other ancillary building, the lessor will have the right to terminate the agreement to the lease. In the written arguments, the respondents have stated that in clause 11 of the agreement dated 1-12-1992, the proposed lessee was required to complete the construction within a stipulated period which has already expired and no request has been made for extension of time. The proposed lessee has not submitted any building plans to the authority and no copy thereof has been sent to the lessor and as such he is not entitled to any extension of time. The case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Planning, Haryana, Chandigarh". Keeping in view the ratio of the judgment of the Hon ble Supreme Court in which it has been clearly laid down that the transferees will also be bound by the terms and conditions of the licence and the right of control of the State and other regulatory measures will continue, we find no justification in the amendment as suggested by the complainant/informant in this clause and it is directed accordingly." 8. The Commission finally directed the appellants to modify the draft lease deed as indicated in Para 7( a ) to ( d ) above and furnish the final lease deed to the complainant-second respondent within two weeks and hand over the possession of the plot for the purpose it was leased out to him within two weeks of the execution of the draft lease deed by the complainant-second respondent. The appellants were also directed to file the affidavit of compliance within eight weeks. 9. Hence, the appellants by way of this statutory appeal have challenged the correctness and validity of the impugned order of the Commission. 10. We have heard the learned counsel for the parties and perused the entire material on record. 11. Mr. Ravindra Narain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -merited order of the Commission which on the face of it cannot be held as perverse or illegal. In nutshell, he submits that after prolonged legal battle with the mighty and strong appellants, he has succeeded in getting relief; therefore, this Court shall not be obliged to exercise its power under section 55 of the MRTP Act to interfere with the findings of fact. 14. We have given our thoughtful and anxious consideration to the respective contentions of the learned counsel for the parties. The submissions of Mr. Ravindra Narain, learned counsel for the appellants at the first blush appears to be attractive, but in the facts and circumstances of the present case, we are afraid to accept them. 15. It is not in dispute that DLF is a colonizer. It is further not in dispute that licences had been granted to it for the construction of a colony. It also stands admitted that the schools, hospitals, community centres and other community buildings were required to be constructed in the colony in terms of the licences granted under the State Act. 16. The complainant-second respondent filed complaint which was entertained by the Commission in purported exercise of its jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The order of the Commission reveals that some instructions were issued by the Government of Haryana on 25-10-1994 and 13-2-1996 regarding transferring of community sites to third and fourth parties under the following three heads: ( i )Where the community sites are still in the ownership of the colonizer. ( ii )Sites where colonizers have created third party rights before 7-8-1991. ( iii )Cases where the licences have created fourth pay right on community sites. 21. An addendum appears to have been issued by the State Government on 13-2-1996 to the instructions dated 25-10-1994 specifying that the time schedule of three years for the construction of community buildings shall also apply to all sites where third and fourth party rights have been created before 7-8-1991 and the remaining conditions of the instructions dated 25-10-1994 would continue to apply without any change therein. The legality and validity of the directions/instructions contained in the two letters dated 25-10-1994 and 13-2-1996 was the subject-matter of the Civil Writ Petition No. 7245 of 1997 filed by the second appellant in the High Court of Punjab and Haryana. As noticed hereinabove, the writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on prohibiting transfer of land which does not affect its user. 39. The plan provides that schools, hospitals etc. would be located at particular sites. When that purpose is satisfied, the court in the name of interpretation would not make a further attempt to find out who did so." 22. The Commission, in the light of the above-noted judgment of this Court, disposed of the complaint of the second-respondent on 21-8-1991 without going into the merits of the case. Later on, on a review application filed by the complainant-second respondent, it was submitted before the Commission on 4-7-2003 that the appellants were now willing to hand over the possession of the site/plot to the complainant-second respondent subject to execution of the fresh lease deed without modification and deviation of the standard lease deed to be executed by all such lessors. The complainant-second respondent suggested the above-stated modifications and their incorporation in the draft agreement in line with clause 11( a )( b )( i ) of the lease deed agreement dated 1-12-1992. 23. The Commission disposed of the review application of the complainant-second respondent by order dated 16-1-2004, which read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been complied with or any obligation imposed upon any person by or under any order made by the Commission under this Act, authorizes the Director General or any officer of the Commission to make investigation into the matter and the Director General or the officer so authorized, may, for the purpose of making such investigation, exercise all or any of the powers conferred on the Director General by section 11. In terms of sub-section (2), the Director General , or, as the case may be, the officer so authorized, shall submit to the Commission a report of the investigation to enable the Commission to take such action in the matter as it may think fit. 27. The Commission under section 13B is also empowered to exercise the powers, jurisdiction and authority to punish the person in respect of contempt of itself. 28. In the backdrop of the facts of the present case, once the appellants have accepted the earlier order of the Commission dated 16-1-2004 which has attained finality, the appellants are left with no other option but to execute a fresh lease deed with the complainant-second respondent on modified terms suggested by him. The order of the Commission impugned in this appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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