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2011]
Belaire Owner’s Association v. DLF Limited and Anr.
(Ashok Chawla, Chairman; Dr. Geeta Gouri, Anurag Goel, M.L. Tayal (Members))
0259
area or place. There is no doubt that builders-developers not only from Gurgaon but
from National Capital Territory of Delhi and all over India can provide their services
to the consumers of Gurgaon for developing and constructing a house. However,
that is a question of entry in the market. Thus, the relevant geographic market in this
case, according to DG, has to be Gurgaon.
5.21 Based upon exhaustive analysis, DG has stated that the relevant market in
terms of relevant product and relevant geographic market in this case would be
services provided by developers/builders for construction of high end residential
buildings carried out in Gurgaon.
Assessment of Dominance
5.22 On the issue of dominance it has been stated by OP-1, it does not enjoy
“dominant position” within the meaning of explanation (a) of Section 4. In order
to find out whether it has a “Dominant Position as defined in Explanation (a) to
Section 4, it is to be established that it enjoys a position of strength, in the relevant
market, in India, which enables it to act in a manner as provided in Clauses (i)
and (ii) thereof. Even though in a general sense, in the context of describing the
status of a leading company, it may be referred to as having a “Dominant Position”,
in various statements/Annual Reports, etc. such description would have no
relevance, unless there is sufficient material to establish that the enterprise enjoys
a “Dominant Position” in terms of the exhaustive definition thereof as set out in
Explanation (a).
5.23 According to OP-1, there are many large Real Estate Companies and Builders in
India, particularly in Northern India as well as in NCR and Gurgaon who offer stiff
competition and give competitive offers in the relevant market of residential
apartments to give a wide choice to the consumers. Even though OP-1 is a large
builder, there are hundreds of other builders all over India as well as in Northern
India including NCR, who offer residential apartments to prospective investors.
5.24 According to OP-1, the conditions of offer of each builder are considered by the
intending investor and then he makes up his mind as to which offer suits him. The
choice of residential property available in the market has never been limited and
apart from the Residential properties offered by it there were a large number of
residential properties available in the market for the investor to choose from.
5.25 OP-1 has submitted analysis reports from Jones La Salle Meghraj (JLLM), ICICI
Direct Analyst, RBS (The Royal Bank of Scotland) Analyst, Knight Frank, Goldman
Sachs, Prop Equity, Research to support their contention that they are not dominant
in the relevant market. Further, a list of 83 members of CREDAI NCR obtained from
their Website also indicates the number of Developers who are their members and
operate in NCR, which is indicative of the fact that there are a large number of
developers, who offer competition. Based upon these, it has been stated that the
residential space offered by OP-1 does not constitute any substantial part of the total
residential properties offered by various developers.
5.26 OP-1 has also contended that it is not a dominant player as the choice of
residential property available in the market was never limited and apart from the
Residential properties offered by OP-1, there were a large number of residential
properties available in the market for the investor to choose from. This also included
offers from Government and Public Sector Organisations like DDA, HUDA, NOIDA
Development Authority, Ghaziabad Development Authority, etc.
COMPETITION LAW REPORTS (JUL-AUG 2011)
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