Amazon and Flipkart found violating Competition law in India-DG investigation report out
Is the fair market watchdog in India, the Competition Commission of India (CCI) going soft on PSUs or is it just trying to send some message in the real estate sector against stakeholders trying to use its forum to avoid their legal obligations or just do forum shopping??
I got such initial impressions while I scrolled through two orders recently published on the CCI website. CCI has closed cases of alleged unilateral conducts against three land owning statutory State authorities, the Haryana Urban Development Authority (HUDA) in the State of Haryana; the New Okhla Industrial Development Authority (NOIDA) and the Greater Noida Industrial Development Authority (GNIDA) in the State of Uttar Pradesh (UP) , despite holding each as dominant in their respective relevant markets.
Let me briefly explain these two orders.
In the first order dated 19.1.2021, the case was filed by the Gurgaon Institutional Welfare Association (GIWA/Informant) against HUDA , (“the HUDA Order”) alleging that HUDA being the exclusive supplier of institutional plots enjoys monopoly status and dominant position in the market for supply and sale of institutional plots in urban estates in the State of Haryana. And that by using its monopoly status HUDA was alleged to have manipulated the terms and conditions of the allotment, contrary to the statutory provisions, thereby restricting the rights of the allottees to further sell, mortgage, lease out the plots purchased, and buildings constructed by them. The Informant alleged that HUDA abused its dominant position by incorporating such illegal terms and conditions, and supplementary obligations in contravention of the statutory provisions[1] and had, inter alia, violated the provisions of Sections 4(2)(b), 4(2)(c), 4(2)(d) and 4(2)(e) read with Section 4(1) of the Competition Act, 2002.
CCI found that a prima facie case existed and referred the matter for investigation to its Director General (DG).
The DG in the investigation report found that imposition of certain conditions by HUDA in the Conveyance Deeds which are drawn from statutory framework did not put any absolute restriction on transfer of institutional plots and were neither unfair nor discriminatory in terms of Section 4 of the Act. Thus, the claim of the Informant that pursuant to the payment of full consideration and signing of the conveyance deed, its members were not vested with rights to transfer without prior permission of the Estate Office or Administrator was not found to be legally tenable by the DG. However, with regard to the application of Clause 2 of the Conveyance Deed[2], DG observed that though theoretically sale/ transfer of institutional plots is allowed with the permission of the Estate Officer, in practice, such permission had never been granted, thereby making the provision of seeking permission redundant. DG therefore concluded that the conduct of HUDA in not allowing transfer of institutional plots was unfair as it led to exit barriers by closing the opportunities for allottees to resell those institutional plots. The restriction also created entry barriers as it prevented subsequent buyers to deal in these plots/ properties. Further, the same was termed as exploitative also. Thus, DG found that the said restriction resulted in the contravention of Section 4(2)(a)(i) of the Act. The DG was of the view that given the dominant position of HUDA, buyers lacked countervailing powers and had no option but to agree to such unfair impositions. DG also agreed with the allegation that the condition was in violation of section 10 of the Transfer of Property Act,1882 (“TPA”) and hence void.
DG also examined Clause 12 of Conveyance Deed in Form ‘D’, which stated that in event of any dispute between allottees and HUDA, the matter would be referred to sole arbitration of Chief Administrator or to officers appointed by him. The DG observed that in a contract, both parties are to be situated at equal positions and retainment of right of appointment of arbitrator by HUDA, left the Informant with no right to challenge the Constitution of arbitrator on any of probable ground. The decision of the arbitration being final and binding, took away right of the members of the Informant to approach appellate mechanism. Therefore, the DG concluded that such condition was not equitable in nature and will amount to contravention of Section 4(2)(a)(i) of the Act.
In conclusion thereof, the DG found the absolute restriction on transfer by HUDA and the arbitration clause to be in contravention of the provisions of Section 4(2)(a)(i) of the Act.
HUDA, in its response to the findings of the DG investigation report as a preliminary objection, challenged the jurisdiction of the CCI by claiming that it was not an “Enterprise” under Section 2 (h) of the Act due to performing “sovereign “functions being a statutory authority under the Haryana Shehri Vikas Pradhikaran (HSVP) Act, 1977. On merits, HUDA defended the restriction imposed on transfer of institutional plots to third parties on the ground that the basic conditions of the allotment of institutional plots is that the successful applicants shall not transfer the institutional plots to third parties since the transfer of institutional plots by HUDA has all along been special category arising out of ‘state subsidy’ and that transfer of such land to third parties at market driven prices will defeat the intent of the policy of the state. This is also imposed with intent to prevent investment in such lands to be used for profit making. HUDA also referred to similar restrictions imposed by other authorities like Delhi Development Authority, which also do not permit transfer of institutional plots, which are allotted with a specific purpose and there is a well-considered policy behind it and such policy of HUDA should not be found fault with in these circumstances.
Regarding the condition violating the Section 10 of the TPA, HUDA referred to a Supreme Court judgment[3] which held that such conditions when imposed by a government under a statute are constitutionally valid and because the policies of HSVP and conveyance deed are regulated by the provisions of HUDA Act which being a special act overrides TPA. Further, HUDA contended that after realising that absolute restriction on transfer of the allotted land was harsh towards allottees, it allowed mortgage of land with banks but first charge being in favour of HSVP and second in favour of Bank. Lastly, in the year 2009, the State Government changed its policies and allowed sale of 49% of the allotted land that too with prior approval of Chief Minister-cum-Chairman, HUDA.
The Commission in its decision , after considering the submissions of both parties during the inquiry , rejected the preliminary objection regarding its jurisdiction and held that though HUDA established under the HUDA/HSVP Act, 1977 is a statutory authority inter alia mandated to perform certain statutory and regulatory functions, within the ambit of such Act, but all its functions may not be classifiable as statutory functions more so of a sovereign nature, especially when it allots various types of plots to third parties for a consideration. The Commission held that all statutory or regulatory functions performed by HUDA, within the mandate of the HUDA Act, cannot be classified as sovereign functions and therefore HUDA is an “enterprise” under section 2(h) of the Act.
Further, CCI agreed with the DG finding that HUDA is in dominant position due to its position as the sole land-owning agency with power to allot institutional plots in the State of Haryana. But on the finding of abuse of dominant position on account of restriction to transfer the plots, as found by the DG during the investigation, CCI felt persuaded by the submissions made by HUDA that the purpose of allotment of institutional plots, in the facts and circumstances of the present case, was not to allow the allottees to transfer them subsequently, with a view to earn profits out of the same. CCI also took cognizance of the fact that based on an application dated 10.12.2020, filed by the Informant, HUDA, post the final hearing in the matter, has issued a memo dated 26.11.2020, wherein it has permitted transfer of ownership of institutional plots, by specifying certain conditions therein.
With respect to the findings of the DG on the aspect of abuse emanating out of the allegedly one sided “arbitration clause” as contained in the conveyance deed, the Commission was of the view that aspects relating to appointment of arbitrator, etc., can be suitably dealt under the provisions of Arbitration and Conciliation Act, 1996.
Thus, CCI despite holding the dominant position of HUDA in the market for allotment of institutional plots in the State of Haryana, absolved HUDA of the charges of abuse of dominant position on account of restriction against transfer of institutional plots on account of public interest of not allowing the open sale of such plots which were allotted for specific purpose, an that of one sided clauses including the arbitration clause .
Please note that as per the scheme of the Act, there is no provision in section 26 of the Act, under which CCI can close a case or absolve an enterprise against whom the DG has found violation after detailed investigation. In such cases of CCI not agreeing with the DG findings of violation, CCI passed simply an “Order”, which cannot be challenged in an appeal under Section 53A of the Act, which makes such cases as another grey area case. Such orders of the Commission can only be challenged in a writ petition before the High Court.
In the second joint order dated 04.05.2021, three cases were filed. First two cases were filed by the Confederation of Real Estate Developers Association of India – Western Utility Promoters (‘CREDAI -WUP’) against Greater Noida Industrial Development Authority (‘GNIDA”) and New Okhla Industrial Development Authority (NOIDA) and the third case was filed by a builder Supertech Limited (‘Supertech’) against GNIDA. The allegations in all three cases being similar, the cases were disposed with a common order (“NOIDA/GNIDA Order”).
It was alleged in these cases that both GNIDA and NOIDA have abused their respective dominant positions in the relevant markets for allotment of land for development of group housing projects alone in Greater Noida /Noida regions , respectively, by inserting one sided clauses in the allotment letters such as non-disclosure and allotment of encumbered land (riddled with disputes) to the developers and charging premium as well lease rent for the same; demanding additional farmer compensation from the developers even though no document- the scheme, allotment letter and the lease deed stipulated such payment obligations; demanding hefty sums of money and imposing interest and penal interest when the developers were not even given peaceful possession of the land; non- grant of zero period when the project land was not either handed over to the developers or failure on GNIDA’s/NOIDA’s part to execute external developmental works; complete in- action on the multiple representations by the developers; one sided clauses in the lease deed such as (a) no liability on GNIDA/NOIDA of providing clear land to the developers, whereas the developers have to adhere to strict timelines;(b) no clause which grants the developer any choice to opt for cancellation and refund of the deposited amounts in the event of any deviation or breach on part of GNIDA/NOIDA. The above is an inclusive list of abusive practices of GNIDA and the abuses have been detailed in the Information.
It was further submitted that but for the above one sided clauses in the lease deed, the projects could have been completed in 3-4 years from the date of allotment for handing over to buyers had there been no dispute on the allotted land, however, the unfair and abusive conduct of GNIDA, resulted in delay in construction of projects.
It was also averred that Supertech as well as other developers in the market have gravely suffered as the disbursement of home loans from Banks started depleting; lack of sufficient cash flow and consequently the pace of construction slowing down; the overrun of the project cost started taking place; litigation by home buyers due to delay in construction has commenced. Due to these reasons, the projects have become almost commercially unviable. Generally, to complete the projects from the time of conception to handing over, the time period varies between 4-5 years, however in the present case because of the monopolistic conduct and unfair abusive policies of GNIDA the aforesaid projects were delayed and construction was stalled for years. GNIDA has failed to discharge its functions in a fair manner. It is incumbent on a dominant authority like GNIDA to allot unencumbered land with clean legal title, fit for the development. However, to the utter dismay of Supertech, GNIDA abused its dominant position by imposing such unfair terms and conditions that Supertech is on verge of being ousted from the market. Supertech had obtained loans from various banks and financial institutions/ market for meeting the initial financial requirement for the allotment of the plots of land. The agitation by the farmers, litigations at the behest of the farmers and the authorities, coupled with serious local administrative issues culminated into prolonged suspension/ slowing down of construction work. This slowing down in construction of the projects further resulted in default in payment dues (including interest and penalty thereof) to the authorities and various financial institutions including Banks by Supertech.
Based on the above allegations and averments, Supertech prayed the Commission to pass an order under Section 26(1) of the Act directing investigation in the matter; pass cease and desist order against GNIDA; and direct it to discontinue the abusive practices. Also, an application seeking interim relief under Section 33 of the Act has been moved by Supertech.
Before considering whether a prima facie case existed for CCI to intervene and direct investigation by the DG, CCI asked for response from GNIDA and NOIDA on the above allegations.
GNIDA in its response, as is common with all statutory authorities, firstly, challenged the CCI’s jurisdiction claiming ( Like HUDA ) that acquisition and allotment of land takes place by operation of law based on the principle of eminent domain and the same is in exercise of a sovereign right. It is submitted that the exercise of sovereign functions of the State cannot be considered as an economic or commercial activity and hence does not fall within the ambit of the Act. In the instant case, it was pointed out that GNIDA is discharging statutory functions, which in the ordinary course, would have been discharged by the State, as a part of its sovereign function. Such activity of acquisition of land, especially in furtherance of exercise of eminent domain could never form the basis for determining a ‘market’. There is no market possible for acquisition and allotment of land. Hence GNIDA contended that it was not an “enterprise “ under Section 2(h) of the Act and , therefore , not amenable to CCI jurisdiction. Besides, GNIDA also raised an ancillary objection that lease deeds are private contracts entered into between the parties and as such the nature of disputes, is contractual in nature and the same ought to have been filed before the appropriate forum. GNIDA also emphasized the abnormal delay on the part of the Informants to approach the Commission which smacked of forum shopping.
Further, on the definition of relevant market, it was submitted that the relevant market definition given in the Information is misconstrued and unfairly narrowed. It should have been delineated as “the market for transfer of land for development of Residential Projects in the territory of India.” In respect of its dominant position, GNIDA stated that it is not a dominant player in this relevant market.
CCI, however, rejected both the above contentions as follows.
On GNIDA not being an enterprise, CCI observed that “The thrust of the definition of the term ‘enterprise’ is on the economic nature of the activities discharged by the entities concerned. It is immaterial whether such economic activities were undertaken for profit making or for philanthropic purpose. Thus, even non-commercial economic activities would be subject to the discipline of the Act as the Act does not distinguish economic activities based on commercial or non-commercial nature thereof. In ascertaining as to whether an entity qualifies to be an ‘enterprise’, the Commission examines this aspect from a functional than a formal approach. In the above backdrop, when the Departments of the Government have been captured within the meaning of the term ‘enterprise’ as provided in the definition of ‘enterprise’ in Section 2(h) of the Act, it is futile for GNIDA to contend that the statutory functions discharged by it cannot fall within the jurisdiction of the Commission. The activities involved in the present case are indisputably economic in nature besides being commercial and, as such, the contention of GNIDA that the Commission does not have the jurisdiction to entertain the Informations, is thoroughly untenable and is accordingly rejected.
On the ancillary objection of private nature of dispute, CCI observed that “plea that issues are contractual in nature and therefore the disputes raised by the Informants ought to have been filed before appropriate forum and not before the Commission, is misdirected. …….If such a plea is accepted, the dominant undertakings would virtually acquire an immunity from anti-trust actions. This was neither the intent nor purport of the legislature and the same is clearly reflected and can be gleaned from the statutory scheme as engrafted in Section 4 of the Act. Resultantly, the Commission has no hesitation in holding that merely because disputes raised are contractual in nature and thereby Commission does not have the jurisdiction, is devoid of any force and the same is accordingly rejected”.
On the submission of GNIDA that the developers had entered into the lease deeds consensually and are thus barred from raising any objections to the same under the Act, CCI observed that “The plea is not tenable as the scope of the Act empowers, rather obligates, the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants. In this statutory framework, estoppel does not have any bearing to the powers and scope of the Commission to investigate, assess and rectify any anti-competitive/abusive practices of a dominant undertaking. Accepting this plea would render the powers of the Commission in regulating dominant firms, virtually redundant and nugatory……..Thus, merely because the developers may have entered into the lease deed with GNIDA consensually, does not imply that they cannot approach the Commission alleging contravention of the Act.
On the relevant market, CCI was of the opinion that “the alleged abusive conduct of GNIDA can be examined in the market for allotment of land for development of group housing projects in Greater Noida. The contention of GNIDA that relevant market should include development of all kinds of land (i.e. institutional, industrial, commercial and residential) is not tenable. The demand of developers is a derived demand which is nothing but a reflection of the choice of end-consumers, whom they will cater to. Clearly, a consumer looking for a property for residential purposes will not substitute it with a commercial property, if the prices of residential property were to increase. In any event, the plea is of no consequence and nothing turns upon this aspect in view of the unique position acquired by GNIDA under the statute across all the categories (i.e., institutional, industrial, commercial, and residential)..” Moreover, looking at the issues projected in the Informations which relate to allotment of land for development for group housing projects, the relevant product market may be appropriately confined to allotment of land for development of group housing projects alone. As regards the geographic market also, the contention of GNIDA that pan-India should be taken as the relevant geographic market, is equally misplaced. The conditions of competition in Greater Noida region are distinctly homogeneous and different from the conditions obtaining and prevailing in other regions due to location and consumer preferences. In this market, GNIDA is the only department of the Government of UP empowered to regulate urban development in the Greater Noida region as being a statutory authority under the UP Development Act, 1976, it has the mandate to acquire land in the industrial development area, by agreement or through proceedings under the Land Acquisition Act, 1894 for the purposes of the Development Act; to prepare a plan for the development of the industrial development area; to demarcate and develop sites for industrial, commercial and residential purposes according to the plan; to provide infrastructure for industrial, commercial and residential purposes; to provide amenities; to allocate and transfer either by way of sale or lease or otherwise plots of land for industrial, commercial or residential purposes; to regulate the erection of buildings and setting up of industries; and to lay down the purpose for which a particular site or plot of land shall be used, namely for industrial or commercial or residential purpose of any other specified purpose in such area.
On the dominant position of GNIDA, CCI observed that “In this statutory backdrop, it cannot be denied that GNIDA has a decisive say in framing the terms and conditions of a scheme, allotment letter as well as the lease deed. Also, it has the commercial flexibility in fixing of land premium, lease rent, interest, penal interest. All developers who wish to participate in schemes and setup projects in Greater Noida area are bound to abide by GNIDA’s scheme documents and the policies. GNIDA not only decides on the viability of land and acquires it, but it also develops schemes for the development of the said land by private players. It is therefore indisputable that GNIDA operates independently in the relevant market without any competitive constraints and as such it is dominant in the market for allotment of land for development of group housing projects in Greater Noida.’
On the abuse of dominant position, the Commission noted that the Informants are primarily aggrieved of (i) non-disclosure and allotment of encumbered land (riddled with disputes) to the developers and charging premium as well lease rent for the same; (ii) demanding additional farmer compensation from the developers even though no document- the scheme, allotment letter and the lease deed stipulated such payment obligations; (iii) demanding hefty sums of money and imposing interest and penal interest when the developers were not even given peaceful possession of the land; (iv) non- grant of zero period when the project land was not either handed over to the developers or failure on GNIDA’s part to execute external developmental works. Also, (v) some contractual terms are alleged to be abusive.
CCI, however, found no merits in each of the allegations, despite holding GNIDA as dominant in the relevant market, primarily, due to the factual background as explained in the reply filed by GNIDA. The reasons for holding so in each allegation are tabulated as under.
| S. No. | ALLEGATION | CCI DECISION WITH REASON |
| 1. | Demanding additional farmer compensation without there being any clause in the lease deed to this effect | There is history of litigation on this point as highlighted by GNIDA in its reply wherein it has been pointed out that as per the order passed by the Hon’ble Allahabad High Court in the case of Gajraj & Ors. v. State of U.P. & Ors., (2011) 11 ADJ 1, it was held that the Authority would determine the way the extra compensation being sought would be paid and the proportion in which it would be paid. It was also pointed out that it is the discretion of the GNIDA to determine the manner and proportion of payments to be made by the Allottees. In pursuance to this, a decision was taken in the 114th Board Meeting of the GNIDA dated 31.05.2019, that the burden of additional compensation payment shall be transferred to the Allottees. Without further delving into this aspect, the Commission was of the opinion that the issue projected by the Informants in the form of a competition law violation, is not appropriate and the Commission is not inclined to interfere on this count in the matter. (Para 56). |
| 2. | Non-disclosure and allotment of encumbered land (riddled with disputes) to the developers and charging premium as well lease rent for the same | It has been submitted by GNIDA that every trade relation relies on the principle of Caveat Emptor i.e. Buyer Beware. The Bid Document based on which the Scheme is advertised and invitation to bid is sent out, specifies clearly that if any land that has not been resumed, is a part of the land offered, attempts shall be made to resume the same or else alternative plot would be offered. Thus, it was pointed out that such information is always in public domain that there may be certain disputed areas in the total land acquired that falls within the area being plotted and allotted. Thus, it was submitted that if the developer submits its bid for the scheme, it is presumed that such circumstances are known and consented to. (Para 57) 58. The Commission is of the opinion that, so long as the information about the status of the land is transparently made available to the potential developers, as affirmed by GNIDA, in a non-discriminatory basis and there is no asymmetry of information in this regard, the buyers or developers cannot be absolved of their own lack of due diligence or otherwise consensual behaviour. (Para 58). |
| 3. | Non- grant of zero period when the project land was not either handed over to the developers or failure on GNIDA’s part to execute external developmental works. | It was submitted by GNIDA that wherever applicable the request for Zero Period has been granted and the same had been communicated through relevant Office Orders. It was also pointed out that these decisions of GNIDA are policy decisions and the Informant was free to challenge the same at the appropriate forum. (Para 59). It is not the case of the Informant that zero period policy was an obligation flowing from the contractual arrangements. If the State or the Authority, after taking into account the unforeseen difficulties faced by the developers or the difficulties which are beyond their control, comes out with a benevolent policy to offer solace to the developers, the same cannot be held against the Authority. ….in the facts as provided by GNIDA and the various communications on this count between GNIDA and the developers, the Commission is not persuaded to interfere with the administrative decisions flowing out of a policy which is not part of contractual obligations. (Para 60). |
| 4. | Not undertaking external works yet still charging External Development Charges | It was fairly conceded (by GNIDA) that only in the case of SAG Civitech there was a delay in completion of some of these tasks. It was, however, submitted that a delay to fulfil obligations in one project may not be considered as an abusive behaviour.( Para 61) External Development Charges are paid by the developer to the civic authorities for maintenance of civic amenities within the periphery of the project and the development work of this kind normally includes the construction of roads, supply of water and electricity, landscaping, maintenance of drainage and sewage systems, waste management, and any other work that is likely to benefit the project at large. Thus, the utility of development of external work needs hardly any elaboration and the same is sine qua non for an orderly and timely completion of any project. In the present case, the Commission takes on record the submissions made by GNIDA that it has been undertaking such external works as per its contractual obligations on a massive scale in the region in an efficient way and in this view of the matter, no interference is warranted. (Para 62) |
| 5. | GNIDA demanded hefty sums of money and imposed interest and penal interest when the developers were not even given peaceful possession of the land. | Commission takes on record the submission of GNIDA that only the unencumbered vacant land is transferred through lease deed whereas with respect to the remaining land, a supplementary lease deed is executed when the land is acquired and for all other area of land, it is clearly provided that the date of execution of lease deed shall be considered as the date of possession. Furthermore, as pointed out by GNIDA, there have been certain instances where the land may have been encumbered and, in those cases, only the unencumbered vacant land is transferred through Lease Deed whereas with respect to the remaining encumbered land, it is transferred only when the encumbrance has been removed through a Supplementary Lease Deed. This has to be seen also in the light of the fact that the terms and conditions detailing the penalty and penal interest are laid down in a transparent manner and are also made available to the potential developers. (Para 63). |
| 6. | On the alleged one-sided clauses in the lease deed such as (a) no liability on GNIDA of providing clear land to the developers, whereas the developers have to adhere to strict timelines; (b) no clause which grants the developer any choice to opt for cancellation and refund of the deposited amounts in the event of any deviation or breach on part of GNIDA. | It cannot be denied, as submitted by GNIDA, that the acquisition process is a long and complex process. The details of the amount of land that may have been acquired and the limits that could not be acquired, are all public knowledge. This information is stated to be in the public domain and easily accessible to the developers at all stages. It was pointed out by GNIDA that it only enters the Lease Deed for the land that is acquired and in its possession. For the remaining land, as submitted previously supplementary lease deeds are executed. It is, thus, unnecessary to have any clauses that direct GNIDA to hand over possession of land.(Para 64) Reg. the issues of encroachment that have arisen after the land has been allotted, are not the Authority’s obligation to resolve as the OP is obligated to provide land in the manner specified in the Lease Deed and it was submitted that the same has been done. Furthermore, with regard to strict timelines for developers, it was submitted that there have been many cases where extensions have been granted to the developers upon timely payment of dues. However, it is in the interest of the home buyers i.e. the end-consumer that projects are completed in time and possession handed over accordingly. It is evident from the number and magnitude of cases filed before the Real Estate Regulatory Authority, among other forums, that the developers who have made these allegations are failing in their duty to complete construction on time and the instant Informations are being used as an opportunity to evade responsibility. (Para 65) In view of the above, the Commission is of the opinion that the justifications offered by the Authority appear to have some merit and the same have to be seen and appreciated in a holistic manner. The Commission agrees that post-execution of the lease deed and transfer of possession, the developers are at liberty to take the assistance of district administration and local police to address the issues of encroachment and law and order situations. The importance of timely execution of projects needs hardly any reiteration as it is in the larger public interest that projects are completed in time and possession handed over accordingly. (Para 66). |
The Commission also noted the abnormal delay on the part of the Informants in approaching the Commission as the lease deeds dated back to as early as July 2010, October 2010 and June 2014 and the Informations did not offer justifiable reasons for the delay.
Similarly, for the case against NOIDA, (Case No. 37/2020) having the similar allegations pertaining to additional farmer compensation, failure to external development works, denial of zero period etc., CCI, though held that NOIDA too was dominant in the market for allotment of land for development of group housing projects in Noida, yet for the same reasons as given in the cases against GNIDA, decided not to interfere and closed the case. Further, on the delay part, CCI noted that like in the cases against GNIDA, the Informants could not explain the abnormal delay in approaching the Commission since the lease deeds dated back to May 2007, March 2010, June 2010, October 2010, January 2012 etc.
COMMENT: A careful analysis of the above orders passed by CCI against three public-sector land-owning authorities in the States of Haryana and Uttar Pradesh, my initial impression that the Commission is going soft on the State Government controlled authorities was not found to be entirely correct, in view of the detailed reasoning given in the orders. The larger public interest of the common consumer that is the flat buyers (in the cases of GNIDA and NOIDA) and that of public policy of not allowing profit booking for institutional plots (in case of HUDA) by vested interests seemed to have swayed these decisions.
Having said so, however, in the cases against GNIDA and NOIDA, in my view , the Commission could have passed some directions to these authorities in respect of certain genuine allegations which are in public knowledge such as absence or slow execution of external development of basic infrastructure in the common areas of the housing projects such as roads , sewerage , street lights etc. which are often neglected and the common buyers generally accuse the builders and developers although the builders cannot be blamed for them having paid the EDC in advance to these authorities .
# GNIDA #NOIDA #Abuseofdominance#HUDA
[1] Particularly, against the provision of Section 10 of the Transfer of Property Act, 1882 which states that any condition imposed in a sale restricting the further sale of the immovable property shall be void.
[2] Clause 2 of the Conveyance Deed took support from Section 15(5) of the HUDA Act which clearly stipulates that the ownership over any land or building or both shall continue to vest with HUDA until the entire consideration, interest or any other amount are paid to it. Further, Section 15(6) clearly puts an encumbrance that an allottee cannot transfer his rights in the land or building except with the previous permission of HUDA and the Regulations drawn thereunder also clarifies the position.
Tata Steel Limited V State of Jharkhand and others, (2015) 15 SCC 55,
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