Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5680 OF 2006
DLF Universal Ltd. & Anr. ..... Appellants
Versus
The Director General
[Investigation & Registration]
& Anr. ..... Respondents
J U D G M E N T
Lokeshwar Singh Panta, J.
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
rd
against the judgment and final order dated 3 July, 2006
recorded by the Monopolies and Restrictive Trade Practices
2
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
3
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]
th
was submitted by DG-first respondent on 27 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
4
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
5
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.
6
(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
7
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
st st
at the end of 31 March, 1996 and 31 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.
8
(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.
9
(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
10
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.
4. On the controversial pleadings of the parties, the
Commission framed the following issues:-
(i) Whether the appellants (respondents before
the Commission) have been indulging in
restrictive and unfair trade practices as alleged
in the Notice of Enquiry?
(ii) Whether the alleged restrictive trade practices
are not prejudicial to public interest?
(iii) Whether the alleged unfair trade practices are
prejudicial to the interest of consumer/
consumers generally?
11
5. It appears from the order of the Commission that on
21.08.2001 the learned advocates appearing for both the
parties stated that the question which arose for consideration
in the complaint filed by complainant - second respondent has
been decided by the Division Bench of the High Court of
Punjab and Haryana in CWP No. 7245/1997 on 07.03.2001
and against the said judgment, special leave petition had been
filed in this Court. In this view of the matter, the Commission
found that no purpose would be served to continue with the
present complaint and, accordingly, the matter was disposed
of.
6. Later on, an application was filed by the complainant –
second respondent seeking to review the order of the
Commission. On 04.07.2003, the complainant – second
respondent stated before the Commission that the possession
of the site/plot to which he was entitled to in terms of the
agreement executed between the parties has still not been
handed over to him. Learned counsel appearing on behalf of
the appellants before the Commission in response to the
12
review application stated that the appellants were willing to
hand over the possession of the site/plot to the complainant –
second respondent 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 & Ors. reported in [(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
01.12.1992. Again on 16.01.2004, 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
13
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 21.08.2001
came to be modified accordingly by the Commission. 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 amendments 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 between the parties in
December, 1992 and any deviation from the earlier lease deed
could be construed as unfair trade practices. The dispute was
with regard to certain provisions in the draft lease deed, which
14
read and are discussed by the Commission in its impugned
order as under:-
(a) The complainant/informant has
insisted on the insertion of clause 1.3
in the draft lease deed with regard to
“No Objection Certificate” (NOC)
particularly that NOC is being issued
in pursuance of the agreement to lease
entered into with you by the Trust on
st
1 day of December, 1992 and does
not confer on you any lien, right, title
or ownership to the aforesaid plot in
question of the Trust till such time you
make full payment of the price of the
plot along with other dues payable by
you and the lease deed is executed in
your favour”. It also seeks to provide
that “during the interim period i.e. till
the lease deed is executed in your
favour, you shall not transfer, sub-
lease, mortgage or otherwise either
encumber the aforesaid plot or part
with it without the prior approval in
writing of the Trust”. The respondents
have stated that the NOC in terms of
the agreement dated 1.12.1992 was
issued to enable the proposed lessee to
submit building plans to the
authorities as well as the lessor for
approval. This was only required for
interim period till the lease is granted,
so that there was no delay in getting
the plans approved. Since NOC had
already been given to the
complainant/informant, there were no
requirements to give it again and no
15
provision for this need be made in the
new lease deed. The purpose of NOC
was clearly indicated there whereas in
the proposed amendment new
implications are being sought to be
brought in which were not
contemplated in the agreement dated
1.12.92. It is, however, seen from the
agreement dated 1.12.92 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
1.12.92 with regard to plot No. 3136
measuring 0.20 acres. It is, however,
seen from the record that this “No
Objection Certificate” issued on
1.12.92 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 1.12.92 does not relate to the plot
which is proposed to be transferred to
the complainant/ informant. In view
16
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 1.12.92 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/informant that the lessor
shall pay to the lessee, the value of the
said plot along with building and
fixtures at the date of determination of
the lease, such value to be determined
by a sole arbitrator agreed upon by
both the parties or by two arbitrators
one by each party. The provision of
Arbitration Act, 1940 amended from
time to time will be referred to at such
occasion, if arises. The respondents
have argued that Clause 17 of the
agreement dated 1.12.92 provides that
on determination of the lease, the
lessee shall hand over the plot and the
building constructed thereon to the
lessor. The complainant/informant is
seeking through the amendment
17
introduction of an arbitration clause
and handing over the plot along with
the building and fixtures after
payment of the value which was not
envisaged in the agreement dated
1.12.92. Since Clause 17 of the
agreement dated 1.12.92 did not
envisage payment to be made to the
lessee for the constructed building on
the plot, no question of valuation
arose. The dispute resolution has
been provided in clause 15 of the draft
agreement and therefore, there is no
justification for an arbitration clause
in this behalf. We have gone through
the agreement dated 1.12.92 and we
find that in clause 25 of that
agreement, the dispute resolution is
provided arbitration mechanism and
not in the manner provided in clause
15 of the draft agreement but at the
same time it is also clear that clause
17 of the agreement dated 1.12.92
does not envisage any payment for the
constructed building on the plot on
resumption which is covered under
clause 11 of the agreement dated
1.12.92. Therefore, we hold that 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 1.12.92 and it is
directed accordingly.
18
(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 1.12.92 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 1.12.92, 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 1.12.92 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
19
on the lines of the agreement dated 1.12.92.
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
1.12.92 is terminable is not convincing
because the respondents themselves have
stated that they could not hand over the
possession of the land to the lessee due to
the litigation in this matter. It has also
come on record that the appropriate
authority of the Haryana Government has
not sanctioned building plan on the ground
of the respondents having created the third
party or fourth party rights, a matter which
has now been settled by the judgment of the
Apex Court. There is no reason therefore,
in our opinion for respondents for not
agreeing to this amendment in clause 4,
which should be carried out in the draft
lease deed and it is ordered accordingly.
(d) Another amendment which has been
suggested to the draft lease deed by
the complainant/informant is with
regard to clause 5.1 of the draft lease
deed by which the lessee undertakes
“it shall not use the demised plot or
building constructed thereon for any
purpose other than the activities
incidental or ancillary to the said
activities such as residence of
teachers, staff and other persons
employed in connection with the
running of the school”. The
respondents have opposed this
amendment on the ground that the
existing clause 5.1 of the draft lease
deed is based on the decision of the
20
Hon’ble Supreme Court order dated
17.2.2003 in terms of the law laid
down. We notice that under clause
5.1, the use of the land has been
specifically indicated and it has been
provided that the lessee shall use that
land strictly in accordance with the
terms and conditions of the layout
plan, building plans, sanctions,
approvals etc. granted by the
concerned authorities including but
not limited to Director, Town and
Country 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
21
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
22
unfair trade practice under Section 36A of the MRTP Act nor
do they constitute restrictive trade practices under Section 2
(o) of the MRTP Act. According to the learned counsel, the
Commission failed to appreciate that after the decision of this
Court in DLF Qutab Enclave Complex Educational
Charitable Trust v. State of Haryana and Others (2003) 5
SCC 622 whereby fourth party rights are recognised, the
appellants have prepared the standard form of lease deed for
sites/plots earmarked for construction of schools/community
buildings in the complex and draft lease deed was handed
over to the complainant –second respondent but he has raised
objections for the purpose of changing the lease so as to
confirm ownership rights upon him and to enable him use the
plot for residential purpose in the garb of putting up of school.
12. Mr. A. Mariarputham, learned counsel appearing on
behalf of the first respondent – DG, submitted that by order
rd
dated 03 July, 2006, the Commission in substance directed
th
due compliance of its earlier order dated 16 January, 2004
and incorporation of certain terms in the fresh lease which are
23
consistent with the earlier agreement dated 1.12.1992 and
also handing over the possession of the site/plot to the
complainant – second respondent. It is submitted that as
th
order dated 16 January, 2004 has not been challenged by
the appellants, therefore, the said order has attained finality
and, the order now impugned in this appeal by the appellants
on the plea raised cannot be assailed and objected to.
13. Raj Kamal, the complainant – second respondent
appearing in person has sought to support the order of the
Commission inter alia contending that this Court ordinarily
would not interfere in the well-reasoned and well-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
24
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 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 27.03.1998. In
response to the notice, the appellants submitted their detailed
reply.
25
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 effect of preventing,
distorting or restricting, competition in any manner and in
particular, -
(i) XXX
(ii) Which tends to bring about manipulation of prices,
or conditions of delivery or to affect the flow of
supplies in the market relating to goods or services
in such manner as to impose on the consumers
unjustified costs or restrictions.”
The definition of Section 2(o) clearly goes to show that it is
exhaustive and not an inclusive one. The decision whether
trade practice is restrictive or not has to be arrived at by
26
applying the rule of reason and not on the doctrine that any
restriction as to area or price will per se be a restrictive trade
practice.
19. Part B of Chapter 5 of the MRTP Act deals with ‘Unfair
Trade Practices’. Section 36A defines “unfair trade practice”
to mean “a trade practice which, for the purpose of promoting
the sale, use or supply of any goods or for the provision of any
services, [adopts any unfair method or unfair or deceptive
practice including any of the following practices]” as
enumerated therein.
20. It was the admitted case of the parties before the
Commission that agreement to lease of land bearing site/plot
No. 3136 admeasuring 0.20 acres for starting a Nursery
School for a consideration of Rs. 4 lakhs was entered into
between the appellants and second respondent on
01.12.1992. The appellants later on issued a letter dated
19.5.1994 making allotment of 0.35 acres of alternate land
bearing site/plot no. 3103 in place of plot No. 3136 to the
complainant-respondent on payment of additional charges to
27
the tune of Rs. 2,96,204 on account of increase in area. 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
28
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
th
vide decision dated 17 February, 2003 titled DLF Qutab
Enclave Complex Educational Charitable Trust v. State
of Haryana and Others (2003) 5 SCC 622. This Court while
dealing with and construing 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 be curtailed or taken away only
by reason of a statute. An embargo upon the
owner of the land to transfer the same in the
opinion of this Court should not be readily
29
inferred. Section 3(3)(a)(iv) of the Act does not
expressly impose any restriction. The same is
merely a part of an undertaking. Assuming that
a prohibition to transfer the land can be read
therein by necessary implication, it is interesting
to note that the consequence of violation of such
undertaking has not been specified. In other
words, if a transfer is made in violation of the
undertaking, the statute does not provide that
the same would be illegal or the transferee would
not derive any title by reason thereof.
37. The right of a transferee, however,
would be subject to the building laws or
regulatory statute relating to user of the
property. In terms of the said Act, in the event
the Government takes over the plots, it would be
at liberty to transfer such land to any person or
institution including a local authority as it may
deem fit. Purpose of such a clause, therefore, is
to ensure that schools, hospitals, community
centres and other community buildings are
established at the places reserved therefor in the
sanction plan but there does not exist any
embargo as regards the person or persons who
would run and manage the same.
38. A regulatory Act must be construed
having regard to the purpose it seeks to achieve.
The State as a statutory authority cannot ask for
something which is not contemplated under the
Act. A statute relating to regulation of user of
land must not be construed to be a limitation
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.”
30
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 01.12.1992.
23. The Commission disposed of the review application of the
complainant – second respondent by order dated 16.01.2004,
which reads as under:-
“The learned counsel for the respondent
states that the respondent is willing to execute a
31
fresh lease deed in favour of the informant. The
commercial terms as contained in the earlier
lease deed dated 01.12.1992 shall not 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
st
order passed on 21 August, 2001 is modified
accordingly.”
24. Thereafter, another order recorded by the Commission
on 29.07.2005 reads as under:-
“The learned counsel for the respondent
states that they have already furnished a
standard lease draft to the applicant which he
acknowledges to have received. The learned
advocate is directed to file the same with the
Commission. The applicant is directed to
suggest the amendments, if any, he proposes on
the draft lease furnished by the informant to him
within four weeks with a copy to the
Commission. The respondents thereafter would
prepare a second draft after incorporating
necessary changes that they feel would be
accommodated in the agreement. A copy of the
nd
2 draft shall also be made available to the
respondent and also to the Commission.
32
Thereafter the case could be taken for
consideration. List on 18.10.2005.”
25. The case of the complainant – second respondent before
the Commission was that he has furnished necessary,
effective and valid suggestions which are to be incorporated in
the fresh lease because of delay in handing over the
possession of the alternate site/plot to him. It is the admitted
case that the appellants have not challenged the order of the
Commission dated 16.01.2004 by which the parties were
directed that the commercial terms as contained in the earlier
lease deed dated 01.12.1992 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.
26. Section 13A empowers the Commission to cause
investigation to find out whether or not orders made by it
under this Act have 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
33
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 16.01.2004 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 appeal does not suffer from any manifest error or
perversity or invalidity.
34
29. In the result, for the above stated reasons, we find no
merit in this appeal and it is, accordingly, dismissed. In the
facts and circumstances of the case, we leave the parties to
bear their own costs.
30. Time granted by the MRTP Commission, however, shall
be extended by four weeks as prayed.
........................................J.
(S. B. Sinha)
........................................J.
(Lokeshwar Singh Panta)
New Delhi,
May 16, 2008.