TaxTMI 
TaxTMI 
2008 (5) TMI 422
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....ndments 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 DL....
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....e 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 7-8-1991 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 th....
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....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 ....
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....rms 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 earlier order dated 21-8-2001 came to be modified accordingly by the Commis-sion. Again, the complainant-second respondent filed miscellaneous application seeking incorporation of some proposed clauses in the new lease deed. The appellants submitted their comments to the proposed amend- ments suggested in the draft lease deed to be executed by the parties. The parties did not choose to examine any witness but they filed their written submissions. 7. In the backdrop of the facts enumerated hereinabove, limited question before the Commission was with regard to handing over the site/plot of the land to the complainant-second respondent on a fresh lease deed supplied to him in place of the earlier lease deed executed betwee....
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....ot 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 transferred to the complainant/ informant. In view of this, we are unable to agree with the respondents that there is no requirement to give "No Objection Certificate" for the plot proposed to be transferred to the complainant/informant now and therefore, no provision is required in the draft lease deed. The respondents are, therefore, directed that in order to enable the complainant/informant to get the NOC for the new plot, the provisions of issue of NOC as incorporated in clause 5(i) and 5(ii) of the agreement dated 1-12-1992 may be incorporated in the lease agreement to be executed now. (b)The second issue is with regard to the amendment in clause 2.3 of the draft agreement in which it has been suggested by the complainant....
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....ten 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 the respondent, therefore, is that since the agreement dated 1-12-1992 has already become terminable; no further rights can be given to the lessee by including this as appearing in the earlier agreement. It has also been stated that if the lessee does not agree to the clauses suggested now in the draft agreement i.e. clauses 4.1, 4.2 and 4.3, the respondents would be at liberty to take action for non-compliance. From the perusal of records before us is clear that clause 4 of the agreement is not on the lines of the agreement dated 1-12-1992. The arguments of the respondents that the period of 24 months is already over and no request was made for extension of time thereby making the agreement dated 1-12-1992 is terminable is not convin....
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....eks 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, learned counsel appearing on behalf of the appellants, in support of the appeal inter alia contended that the Commission has no jurisdiction to direct the appellants to execute the fresh lease deed on terms and conditions in modification of the standard draft lease deed to be executed by all such intended lessees and deviation or modification of the standard draft lease deed would amount to breach of specific purpose of the contract or any other contractual matter regarding implementation of agreement etc. He submitted that the allegations made in the complaint by the complainant-second respondent on the basis of which directions were issued by the Commission did not constitute unfair trade practice under section 36A of the MRTP Act nor do the....
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....ther 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 under section 2(o)( i) and section 36A of the MRTP Act. The said complaint was referred to the first respondent-DG for investigation and on receipt of the PIR submitted by the first respondent-DG, notice was issued to the appellants by the Commission on 27-3-1998. In response to the notice, the appellants submitted their detailed reply. 17. The Statement of Objects and Reasons for the enactments of MRTP Act is designated to ensure that the operation of the economic system does not result in the concentration of economic power to the common detriment and to prohibit such monopolistic and restrictive trade practices as are prejudicial to public interest. 18. Section 2(o ) defines 'Restrictive Trade Practice' to mean a trade which has, or may have the effe....
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.... 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 petition was finally dismissed by the High Court on 7-3-2001 which order was challenged by the aggrieved parties in Civil Appeal Nos. 4908/2002 along with 4909-11/2002. This Court finally decided the said appeals vide decision dated 17-2-2003 titled DLF Qutab Enclave Complex Educational Charitable Trust's case (supra ). This Court while dealing with and constru-ing the various provisions of Haryana Development and Regulation of Urban Areas Act, 1975 and Haryana Development and Regulation of Urban Areas Rules, 1976, Transfer of Property Act and Article 300A of the Constitution of India besides basic rules on construction of statutes, held:-[see pp.634-635 paras 36, 37, 38 and 39]. "36. Right of transfer of land is indisputably incidental to the right of ownership. Such a right can....
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....on 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 reads as under:- "The learned counsel for the respondent states that the respondent is willing to execute a fresh lease deed in favour of the informant. The commercial terms as contained in the earlier lease deed dated 1-12-1992 shall not be modified and altered and shall remain the same in framing of the new lease deed which shall be executed between the parties. The respondent will indicate the amount of lease rent which is payable by the informant within one week. The informant shall pay the said lease rent within one week thereafter. The informant as well as the respondent shall sign the modified lease deed and the possession of the plot shall be handed over to the informant. The present review application is disposed of in these terms and the order passed on 21-8-2001 is modified according....