Order under Section 26(2) of the Competition Act, 2002 The information bearing Case Number 05 of 2016 has been filed under Section 19(1) (a) of the Competition Act, 2002 (hereinafter, the Act) by Mr. Mukul Kumar Govil Mrs. Kiran Govil against ET Infra Developers Pvt.

Limited (hereinafter, OP 1) and Noida Development Authority (hereinafter, OP 2) alleging, inter alia, contravention of the provisions of Sections 3 4 of the Act.

Another information bearing Case Number 06 of 2016 has been filed under Section 19(1)(a) of the Act by Mrs. Anshoo Bansal Mr. Amit Bansal against OP 1 and OP 2 alleging, inter alia, contravention of the provisions of Sections 3 4 of the Act.

The Commission considered both the information and found that though these information have been filed separately by different Informants, they are against the same opposite parties, relate to same project and bring out similar allegations.

As the facts allegation raised therein are substantially similar, the Commission is satisfied that these can be clubbed together.

Therefore, this common order shall dispose of both the information.

OP 1 is stated to be a private limited company, engaged in the development of residential and commercial space.

It has been stated that both the Informants had booked single office unit each in the World Trade Tower - Business Avenue (WTT) project developed by OP 1 at Noida.

In this regard, OP 1 has also issued allotment letters to both the Informants.

Both the Informants have identified OP 2 as Noida Development Authority but as such no such authority exist.

It appears that both the Informants are referring to New Okhla Industrial Development Authority (OP 2).

OP 2 is constituted under the U.P. Industrial Area Development Act, 1976, inter alia, to acquire land in the notified area through Govt.

of UP under Land Acquisition Act, 1894 or by way of agreement to prepare Master Plan for development of the area to demarcate and develop sites for various land uses to allot plot properties as per regulations to regulate the erection of buildings and setting up industries and to provide infrastructure and amenities.

Both the Informants have alleged that OP 1, in collusion with OP 2, to avoid pressure from allottees, had issued an illegal exorbitant demand notice for a certain amount to be deposited but had not handed over the possession within the stipulated period as committed in the allotment letters.

As per clause 19 of the allotment letter, OP 1 had to deliver the fully completed office space within 36 months from the date of allotment letter.

However, allegedly OP 1 has not offered possession even after the expiry of more than 5 years.

In terms of clause 21 of the allotment letter, OP 1 is liable to pay compensation at the rate of Rs. 40/- per sq.

ft. per month for the period of delay in possession.

Both the Informants have alleged that OP 1 has failed to pay the said compensation and interest thereon at the rate of 18 p.a. for delay in payment of compensation.

Further, as a result of delay in handing over possession, both the Informants could not operate their businesses through the said offices which according to them has also resulted in loss of goodwill.

Both the Informants have further alleged that OP 1 vide demand notices dated 19th September, 2015 had intimated them to pay the remaining amount, actually due only at the time of possession.

However, allegedly the said office units are not yet ready for possession as flooring is incomplete, electric wiring and water connection are yet to be done and public utility is not in existence.

It has also been averred that no objection certificate (NOC) and permissions have also not been obtained by OP 1 from various government agencies.

It has been alleged that OP 1 had also issued demand letters on 28th November, 2015 requiring both the Informants to pay various exorbitant and illegal charges such as one time lease rent, annual lease rent for period prior to the execution of lease deed, LEED Pre-certified Gold Rated Green Building Charges and electrification charges.

Both the Informants have also stated that since OP 1 has already received around 95 of sale consideration for the said office units from them, their purchasing power has been curtailed and as a result, they have been denied market access to purchase other office units.

With regard to dominance, both the Informants have stated that OP 1 is the only developer for whom OP 2 has allotted land for development of commercial project in a prime location.

Hence, OP 1 has been alleged to enjoy a dominant position.

Both the Informants have prayed to the Commission, inter alia, to restrain OP 1 from demanding various unfair and exorbitant charges to direct OP 1 to pay compensation for delay in possession and initiate enquiry under Section 26(1) of the Act.

The Commission has given a careful consideration to the material available on record.

Since the allegations pertain to violation of the provisions of Section 4 of the Act, the relevant market in terms of Section 2(r) of the Act is required to be delineated before examining the alleged abusive conduct of OP 1.

The Commission notes that the matter relates to sale of commercial office units in a project developed by OP 1.

The real estate market can be broadly classified into two main segment: residential and commercial.

Residential segment can be further sub-categorized into residential apartment flat and plots.

The Commission observes that sale of commercial units form a separate relevant product market in terms of the provisions of the Act, because the intention and factors considered while buying a commercial office unit are different from buying a residential flat or plot.

Further, the requirements and prospects of a consumer buying a commercial office unit are also different from those of a consumer buying a residential flat or plot.

Thus, taking into account factors such as substitutability, characteristics of service offered, price and intended use provision of services for development and sale of commercial space appears to be the relevant product market in the present case.

With regard to the relevant geographic market, the Commission is of the view that the consumers, looking for a commercial office unit in Noida Greater Noida, may not prefer other areas.

Various factors like availability of office space, location of business establishment, transport connectivity etc.

play a decisive role in a potential buyers decision making process while choosing a commercial office unit in a particular area.

Further, the geographic region of Noida Greater Noida exhibits homogenous and distinct market conditions as compared to other regions of NCR such as Faridabad, Delhi and Gurgaon etc.

Considering these aspects, the Commission opines that the relevant geographic market in the instant case would be Noida Greater Noida.

Thus, the relevant market would be the market of provision of services for development and sale of commercial space in Noida Greater Noida.

As regards dominance, the Commission notes that the underlying principle for assessing dominance of an enterprise is linked to the market power enjoyed by the enterprise.

An enterprise could be regarded as dominant if it enjoys possesses a position of strength in the relevant market, which enables it to operate independently of competitive forces prevailing in the relevant market or affect its competitors or consumers or the relevant market in its favour.

It is observed that no data has been provided by both the Informants in support of their assertion of dominance of OP 1 in the relevant market.

The Commission, however, observes that other than OP 1, there are many other real estate developers such as Jaypee Green, Omaxe, Supertech Limited, AIRWIL, Wave City Center, Lotus Greens and Saviour Builders Pvt.

Limited etc.

, rendering similar services in the relevant market.

The competitors of OP 1 are found to have projects of varying magnitude and are comparable with OP 1 in terms of size and resources.

The presence of other players indicates that the buyers have various options.

Accordingly, OP 1 does not appear to enjoy a dominant position in the relevant market.

In the absence of dominance, the examination of alleged abusive conduct does not arise.

Therefore, the Commission is of the view that there is no contravention of provisions of Section 4 of the Act in the instant matter.

The Commission observes that both the Informants have also alleged collusion between OP 1 and OP 2.

It has been stated that OP 1 is the only developer for whom OP 2 has allotted land for such commercial project in prime location.

The Commission observes that other builder have also been allotted lands for development of commercial space as discussed supra and there does not exist any information as such to support the contention that there exists an agreement between OP 1 and OP 2 which is in violation of the provisions of Section 3 of the Act.

In view of above, no case of contravention is made out against the opposite parties under Sections 3 or 4 of the Act.

Accordingly, these cases are hereby directed to be closed under Section 26(2) of the Act.

The Secretary is directed to inform all concerned accordingly.

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Order under Section 26(2) of the Competition Act, 2002 The present information has been filed by Open Access Users Association through its Secretary Shri Amit Ailawadi (the Informant) under section 19(1)(a) of the Competition Act, 2002 (the Act) against Tata Power Delhi Distribution Limited (OP- 1), BSES Rajdhani Power Limited (OP-2), BSES Yamuna Power Limited (OP-3), Punjab State Power Corporation Limited (OP-4) Uttar Haryana Bijli Vitran Nigam Limited (OP-5), Dakshin Haryana Bijli Vitran Nigam Limited (OP-6), Himachal Pradesh State Electricity Board Limited (OP- 7), alleging inter alia abuse of dominant position by the Opposite Parties in contravention of the provisions of section 4 of the Act.

Facts, as gathered from the information, may be briefly noted.

As per the Information, the Electricity Act, 2003 enables eligible consumers to have non-discriminatory Open Access to the network of a Licensee (except that of a local authority engaged in the business of distribution of electricity before the appointed date) on payment of applicable charges.

The Electricity Act, 2003 and National Electricity Policy formulated thereunder, mandate the State Electricity Regulatory Commissions to frame the terms and conditions and timeframe for introduction of Open Access in a State.

It is alleged that the Opposite Parties have imposed unfair and discriminatory conditions and the respective State Regulatory Commissions have continuously increased the charges for Open Access which has resulted in denial of market access to the members of the Informant, creation of entry barriers, foreclosure of competition and limited consumer choice in the market.

The Informant submits that the Opposite Parties, being the only distribution licensees in their respective States, enjoy a position of strength in the market.

It is alleged that the Opposite Parties have unduly influenced and made unreasonable suggestions to their respective Commissions in order to increase various charges for Open Access like Cross-Subsidy charges, Wheeling Charges etc.

In addition to the continuous increase in Open Access charges, the tariff for power has also been continuously increased by the respective State Electricity Regulatory Commissions based on the recommendations of the Opposite Parties.

Furthermore, it is alleged by the Informant that the purpose of such act was to overcome the inefficiencies in operations of the distribution licensees, prevent competition and to ensure that the consumers do not have the choice of taking supply of electricity through Open Access and particularly over the power exchange.

It is further submitted that as per section 42 of the Electricity Act, 2003, the Open Access consumer shall be liable to pay Cross-Subsidy.

However, proviso to Section 42 provides that the Cross-Subsidy shall be progressively reduced.

According to the Informant, the State Electricity Regulatory Commissions have failed to not only reduce the Cross-Subsidy but have instead been continuously increasing the Cross- Subsidy.

The continuous increase in the Cross-Subsidy surcharge has allegedly affected the competition in the respective State power sectors due to the huge increase in Open Access charges, the consumers have been constantly prevented from utilizing the feature of Open Access and thereby cheaper power.

It is stated that the Opposite Parties are the ultimate beneficiaries and thereby gaining undue advantage.

Based on the above, the Informant has prayed, inter alia, to institute an inquiry against the Opposite Parties and pass an order directing the Director General (DG) to carry out an investigation into the violation of section 4 of the Act.

The Commission heard the arguments advanced by the counsel appearing for the Informant on 15.01.2015 and on request of the counsel also directed him to file additional information.

Subsequently, when the matter was listed for consideration before the Commission, it was noticed by the Commission that the Informant had failed to file the additional information.

Further, on perusal of the material available on record, the Commission observed that in light of the allegations made by the Informant in the information which were essentially directed against the named State Electricity Regulatory Commissions, it was decided to make a reference to the respective State Electricity Regulatory Commissions i.e. (1) Haryana Electricity Regulatory Commission (HERC), (2) Punjab State Electricity Regulatory Commission (PSERC), (3) Delhi Electricity Regulatory Commission (DERC) and (4) Himachal Pradesh Electricity Regulatory Commission (HPERC) on the central issue agitated by the Informant i.e. increase in Open Access charges resulting into denial of market access, creation of entry barriers, foreclosure of competition and limiting consumer choice in the market.

Later, the Commission has received the replies opinions from the respective State Electricity Regulatory Commissions and the same shall be referred to appropriately in the order.

The Commission has perused the material available on record besides hearing the counsel for the Informant.

At the outset, the Commission observes that there is no overlap in the jurisdictions exercisable by the Commission and the State Electricity Regulatory Commissions.

It is noted that the mandate of the Commission is 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 markets in India.

Sectoral regulators have necessary technical expertise to determine access, maintain standard, ensure safety and determine tariff.

The set rule of game i.e. entry conditions, technical details, tariff, safety standards and have direct control on prices, quantity and quality.

Thus, sectoral regulators focus on the dynamics of specific sectors, whereas the Commission has a holistic approach and focuses on functioning of the markets by way of increasing efficiency through competition.

In fact, the roles played by the Commission and the sectoral regulators are complementary and supplementary to each other as they share the common objective of obtaining maximum benefit for the consumers.

In the aforesaid jurisdictional backdrop, the grievance made by the Informant in the present case may be examined.

As noted earlier, the gravamen of the information essentially centres around the increase in Open Access charges effected by the respective State Electricity Regulatory Commissions of Delhi, Punjab, Haryana and Himachal Pradesh resulting into alleged denial of market access, creation of entry barriers, foreclosure of competition and limiting consumer choice in the market.

To appreciate the issue, the Commission deems it appropriate to make a reference to the relevant provision of the Electricity Act, 2003 and the rules and regulations made thereunder.

As per section 2(47) of Electricity Act, 2003, Open Access means the non- discriminatory provision for the use of transmission lines or distribution system or associated facilities with such lines or system by any licensee or consumer or a person engaged in generation in accordance with the regulations specified by the Appropriate Commission.

Section 42(2) of the Electricity Act provides that the Open Access charges will be determined by the respective State Commissions.

Section 86 86(1)(a) which deals with the functions of State Commission provides that the State Commission shall determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State but where open access has been permitted to a category of consumers under section 42, the State Commission shall determine only the wheeling charges and surcharge thereon, if any, for the said category of consumers.

The Commission has also perused the response filed by the respective State Regulatory Commissions and a brief summary of the responses may be noticed.

It has been submitted on behalf of HERC that in accordance with the various provisions of the Electricity Act, 2003 and the Regulations framed thereunder, it determines the tariff and other charges for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, and wheeling charges surcharge thereon for the open access category of consumers within the State.

It denied the suggestion of the Informant that Discoms of the State influence the decision of HERC.

Further, it was pointed out that under section 110 of the Electricity Act, 2003, Appellate Tribunal for Electricity (APTEL) has been established and any person aggrieved by an order made by the Appropriate Commission can prefer an appeal before it.

A further appeal is also provided to the Honble Supreme Court of India.

Detailed justifications for levying various charges have also been elaborated in the response.

PSERC in its response pointed out that it notified the Punjab State Electricity Regulatory Commission (Terms and Conditions for intra-State Open Access) Regulations, 2011.

It was further informed that the vires of the Regulations can only be challenged before the constitutional courts.

In fact, it was brought on record that these Regulations were challenged before the Honble Punjab and Haryana High Court through Civil Writ Petition Number 20562 of 2012, which is stated to be pending.

It has been further intimated that the same Informant filed an appeal before the Honble APTEL against the Tariff Order dated 16.07.2012 on the similar grounds as have been contained in the instant information before the Commission.

It has been mentioned that the said appeal was decided in favour of the appellant, yet on further appeal by the Punjab State Power Corporation, the same was admitted by the Honble Supreme Court of India and the judgment of Honble APTEL was stayed.

As the matter is sub judice, it was prayed that the maintainability of the very information needs to be examined by the Commission.

Opinion was also given by DERC and it was pointed out that various charges of open access consumer have been levied as per the provisions of the Electricity Act, 2003 and the National Tariff Policy.

It was denied that the Discoms are in a position to influence State Commissions in determination of tariff and it was argued that the State Commissions are autonomous bodies set up under the Electricity Act, 2003 and the tariff is determined as per the provisions of the statute, policy and applicable regulations after following the due procedure.

HPERC also gave its opinion denying and disputing the allegations made by the Informant.

It was pointed out that the distribution function is a regulated activity and there are multifarious checks and balances thereon.

The State Commission fixes the open access charges in a transparent manner by following well-reasoned methodologies and the allegation in this regard are ill-founded.

The tariff fixed by the State Commission is subject to review by the Appellate Authority and, as such, question of misuse of power by the State Commission or any undue benefit to the Discoms simply does not arise.

On a careful perusal of the scheme of the Electricity Act, 2003 and the regulatory architecture provided thereunder, it is abundantly clear that the charges for Open Access are to be decided by the respective State Commissions and any issue in regard thereto would be dealt by the concerned State Electricity Regulator and the Appellate Authority in terms of the statutory architecture governing the regulation of open access and determination of the relevant tariffs.

The issue highlighted by the Informant in the present case is essentially related to the regulatory functions discharged by the State Regulatory Commissions in respect of fixation of tariffs.

No competition issue is involved in the factual matrix disclosed in the information.

In view of the above, the Commission is of view that no case is made out against the Opposite Parties for contravention of the provisions of section 4 of the Act and the information is ordered to be closed forthwith in terms of the provisions contained in section 26(2) of the Act.

The Secretary is directed to inform the parties accordingly.

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The information in this case was filed by Shri Prem Prakash (the Informant) under Section 19(1)(a) of the Competition Act, 2002 (the Act) against the Principal Secretary, Public Works Department, Government of Madhya Pradesh (OP-1) and the Director General, Central Public Works Department, New Delhi (OP-2) alleging contravention of the provisions of Sections 3 and 4 of the Act.

The Informant is the proprietor of Venus Testing and Research Laboratory.

It is claimed that the laboratory of the Informant has been assessed and certified for physical and chemical material(s) testing by the Accreditation Commission for Conformity Assessment Bodies (ACCAB) to meet the requirements of International Standard ISO IEC 17025:2005.

OP-1 is the Principal Secretary of the Public Works Department of the Government of Madhya Pradesh (MPPWD).

MPPWD is the principal agency of the Government of Madhya Pradesh engaged in planning, designing, construction and maintenance of Government assets like roads, bridges, road over bridges, fly overs and buildings through its two wings i.e., Public Works Department (B R) and Project Implementation Unit.

OP-2 is the Director General of the Central Public Works Department (CPWD), New Delhi.

CPWD is a comprehensive construction management department and the principal agency of the Government of India responsible for creating assets and providing services including planning, design, construction and maintenance of office and residential buildings as well as other structures of various ministries and departments of Government of India and other autonomous bodies and public sector enterprises.

Its activities are spread throughout India.

The Informant was aggrieved that the Opposite Parties (OP-1/MPPWD and OP- 2/CPWD hereinafter collectively referred to as OPs) had refused to consider his laboratory for testing construction materials on the ground that it has not been accredited by the National Accreditation Board for Testing and Calibration Laboratories (NABL).

The Informant had submitted that MPPWD had issued an order dated 16.09.2013 wherein it was made mandatory for the contractors of PWD in the state that 20 of their construction material used in the work was to be tested by accredited laboratories of NABL.

Earlier vide order dated 03.09.2012, MPPWD had made 10 quantity as mandatorily required to be tested by NABL accredited labs in the areas of Bhopal and Sagar.

Similarly, CPWD had issued Guidelines for Approval of New Products and Laboratories dated 18.12.2013 as well as Office Memorandum dated 29.05.2014 for Modification in CPWD Works Manual 2012 which imposed a condition that the outside private laboratories must be NABL approved.

The Informant had alleged that there was nothing as NABL accreditation.

It was stated in the information that NABL is an autonomous body under the aegis of Department of Science and Technology (DST), Government of India registered under the Societies Registration Act, 1860.

Further, the Informant has submitted that NABL is merely an accreditation body accrediting laboratories as per ISO IEC 17025:2005 international standard.

It is neither a statutory nor a constitutional body.

The Informant had highlighted that, as per the requirement of this international standard, if a laboratory wanted to get accreditation for part or all of its testing and calibration activities, it should select an accreditation body that operated in accordance with ISO IEC 17011 international standard.

Thus, any organization that operated its system as per ISO IEC 17011 international standard could accredit laboratory for ISO IEC-17025:2005 international standard.

The Informant averred that there were more than hundred accreditation bodies throughout the world and three accreditation bodies in India.

However, the aforesaid orders memorandum of the OPs were promoting the trade name of a single accreditation body i.e., NABL which was unfair as it consequently affected the business of those laboratories which were not accredited by NABL.

Accordingly, it was alleged by the Informant that by incorporating the condition that materials used for construction should be tested by laboratories accredited only by NABL, the OPs had imposed arbitrary and unreasonable condition of eligibility, which was adversely affecting the competition in the relevant market.

Hence, the Informant had challenged the circulars orders of the OPs and alleged violation of Section 3 and 4(2)(a)(i) of the Act in the matter.

The Commission had passed an order under Section 26(2) of the Act dated 29.10.2014 in this case wherein the Commission had held that the activities being performed by the Opposite Parties do not come under the definition of enterprise in terms of Section 2(h) of the Act as they are not directly engaged in any economic and commercial activities.

The Opposite Parties have no existence in the relevant market, except for laying down norms as to the authorization of accreditation bodies for specific purposes.

Their role is limited to planning, designing, construction and maintenance of Government assets as such provisions of Section 4 of the Act are not attracted against them.

The Opposite Parties have issued circulars only and they were not operating in the relevant market.

Therefore, the conduct of the Opposite Parties does not give rise to any competition concern.

An Appeal Number 51/2015 (Prem Prakash v. The Principal Secretary, Madhya Pradesh Public Works Department and Ors.) was filed before the Competition Appellate Tribunal (the COMPAT) by the Informant against the above order passed by the Commission.

The COMPAT in its order dated 17.02.2016 referred to its order in Rajat Verma v. Haryana Public Works (B R) Department and others (Appeal Number 45 of 2015) dated 16.02.2016 and allowed the appeal.

It noted that in Rajat Vermas case, while considering the issue of whether the Public Works Department of the Government of Haryana is an enterprise under the Act, the COMPAT in its order referred to the observations made in the dissent note of Member Augustine Peter at length.

Further, the COMPAT observed as follows: If the term enterprise as defined in Section 2(h) is read in conjunction with the definition of the term person and service it becomes clear that the legislature has designedly included Government departments in relation to any activity relating to storage storage, supply, distribution, acquisition or control of articles or goods, or the provision of services of any kind.

The width of the definition of enterprise becomes clear by the definition of the term service.

The inclusive part of the definition of service takes within its fold service relating to construction and repair.

These two words are not confined to construction and repair of buildings only.

The same would include all types of construction and repair activities including construction of roads, highways, subways, culverts and other projects etc.

It is thus evident that if a department of the Government is engaged in any activity relating to construction or repair, then it will fall within the definition of the term 19 enterprise.

We may add that there is nothing in Section 2(h) and (u) from which it can be inferred that the definitions of enterprise and service are confined to any particular economic or commercial activity.

The only exception to the definition of the term enterprise relates to those activities which are relatable to sovereign functions of the Government and activities carried by the four departments of the Central Government, i.e., atomic energy, defence, currency and space.

Also, it was observed that In the execution of work relating to construction of roads, bridges etc., the contractor may be a service provider qua the department but the beneficiary of these activities is undoubtedly the general public qua whom the department acts as a service provider.

The roads and bridges etc.

constructed by the Haryana Public Works Department or HSRDC either by themselves or through private agencies are used by the general public in more than one ways including travelling and carriage of goods.

In other words, the Public Works Department is a provider of service to the public and from that perspective it clearly falls within the ambit of term enterprise Whether the activity of procuring construction services is with a view to make profit is not the concern of the Act.

What is important is that the Public Works Department by inviting tenders for award of contract for construction of roads, bridges etc.

is interfacing with the wide market of road and bridge construction services in the State.

Therefore, there is no escape from the conclusion that it is an enterprise within the meaning of Section 2(h) of the Act It is neither the pleaded case of the respondents nor Shri A.P. Singh has argued and in our opinion rightly so that the activities of the Public Works Department, Government of Haryana are relatable to sovereign functions of the Government.

Any such argument would have been rejected in view of the law laid down by the Supreme Court in Bangalore Water Supply and Sewerage Board Vs.

A. Rajappa (supra) and N. Nagendra Rao and Company Vs.

State of A.P. (supra) and other decisions referred to in the dissenting note.

On the basis of the above observations, the COMPAT held that the Public Works Department, Government of Haryana fell within the definition of the term enterprise under Section 2(h) of the Act and that the same would be the position qua Public Works Department of other States as also the Central Public Works Department.

Thus, in view of the above order passed in Rajat Vermas case, the COMPAT held that the view taken by the Commission on the maintainability of the information filed by the Appellant in the present case was legally unsustainable and that the impugned order was liable to be set aside.

As a result, the COMPAT allowed the appeal in the present case and the matter was set aside and remitted to the Commission for considering whether the allegations contained in the information filed by the Appellant made out a prima facie case requiring investigation under Section 26(1) of the Act.

Pursuant to remission of the matter to the Commission, the Commission heard the Informant and OP-1 to determine whether a case for contravention of the provisions of Section 4 of the Act was made out in this case.

It is pertinent to mention here that in order to ascertain abuse of dominance by OPs in terms of Section 4 of the Act, a pre-requisite under the Act is to determine the relevant market in which OPs operate and whether they are dominant in that relevant market.

It is noted that while framing its decision in Rajat Vermas case, the COMPAT had referred to the observations of Member Augustine Peter in his dissent note.

With respect to relevant market and dominance of Haryana PWD, the observations of Member Augustine Peter were as follows: The relevant market in this case is the market for procurement of construction services through bidding for roads and bridges in the state of Haryana.

In this market, the Public Works Department (B R) of Haryana is the dominant player in the geographical market of State of Haryana in the sense that they are responsible for construction of State Highways, Major District Roads and some of the other District Roads, Railway Over-Bridges (ROBs), Railway Under Bridges (RUBs), Bridges, rehabilitation of public bridges, and construction of National Highways in the State of Haryana.

Major construction activities relating to public roads and bridges are through tendering and are under the charge of OP1.

As far as procurement of the construction services for roads and bridges by tender is concerned OP1 has near monopoly in the state of Haryana.

And I am of the prima facie view that OP1 is a dominant player in the relevant market thus defined.

In addition to above, some of the observations of the COMPAT in Rajat Vermas case which are pertinent with respect to relevant market and the position of PWD are as follows: The main task of the Public Works Department of the Government of Haryana is planning and construction of roads, bridges, projects etc.

Every year, the State Government allocates budget to the Public Works Department for undertaking these activities.

After creation of the State in 1966, this task was initially performed by the department through its officers and employees.

With the expansion of cities and proliferation of the activities relating to trade, commerce, transport etc.

, it became extremely difficult to accomplish this task at the departmental level.

Therefore, the State Government decided to outsource the planning, designing and construction of roads, bridges etc.

by inviting tenders and awarding contract to the lowest bidder.

Of course, the over-all control continues to be with the department.

In due course, the State Government created a separate agency i.e. Haryana State Roads and Bridges Development Corporation Limited (HSRDC) The position of the Public Works Department and HSRDC is unique in the field of construction of roads, bridges etc.

and no public or private enterprise can compete with it in terms of scope and scale of the activities.

In 49 years after creation of the State of Haryana, almost 24,000 Kms.

roads have been constructed by the Public Works Department of the State and its instrumentalities.

These include State Highways (2,128 Kms.), Major District roads (1,425 Kms.) and other district roads (20,315 Kms.) 20.

the Public Works Department by inviting tenders for award of contract for construction of roads, bridges etc.

is interfacing with the wide market of road and bridge construction services in the State In view of the above observations, it is apparent that based on the activities of State PWD and CPWD, the relevant product market in which the OPs operate would be the market for procurement of services for construction of roads and bridges etc.

through tendering.

In the facts of this case, the service being procured by State PWD i.e., MPPWD and CPWD is the services of laboratories for testing construction materials albeit such procurement by them is indirectly through contractors.

OPs have laid down the norms for the contractors for testing construction materials specifying that the laboratory(s) from which the testing is done should be accredited by a specific accreditation body.

Thus, OPs are indirect procurers of services of laboratories.

Accordingly, the Commission is of the opinion that the relevant product market in the present case may be defined as the market for procurement of services of laboratories for testing materials used in the construction of roads and bridges, etc.

As regards the relevant geographic market, for State PWD, the market would be the respective state i.e., Madhya Pradesh and for CPWD the market would be the territory of India.

With respect to the dominance of MPPWD and CPWD in their respective relevant markets, it is evident from the observations of COMPAT that the position of State PWD and CPWD is unique in the field of construction of roads, bridges etc.

and no public or private enterprise can compete with them in terms of scope and scale of the activities.

Therefore, even though the services of laboratories such as that offered by the Informant can be procured by the contractors, at the behest of their customers or by themselves, for checking the quality of construction materials used for construction works from other projects than those tendered by MPPWD or CPWD, the volume of procurement by MPPWD and CPWD would remain unmatched.

Thus, MPPWD and CPWD would be dominant in their respective relevant market merely by virtue of their unique position.

Coming to the examination of the alleged abusive conduct of OPs, the Commission notes that the allegations made by the Informant relate to imposition of unfair conditions by OP-1 with respect to the invited tenders for construction of roads and bridges etc.

in the State of Madhya Pradesh whereby the contractors are required to get 20 of the construction materials tested from NABL accredited laboratories.

Further, CPWD in its guidelines also prescribes that the laboratory from which the tests are done must be approved by NABL.

It is averred that for purposes of assessment of quality, OPs could have merely prescribed the quality standards i.e., ISO 9001 certified or accredited as per ISO IEC 17025:2005 standard, instead of specifying the trade name of the accreditation body.

In order to ascertain the alleged abusive conduct of OPs, the Commission directed the parties to appear for hearing.

The Informant in his submissions before the Commission relied on the case decided by COMPAT in Appeal Number 03/2013 (ACCAB v. Quality Council of India Ors.) wherein it was observed that anybody would have the authority to act as the accrediting body provided such body has the necessary infrastructure Further, the Informant submitted that various Government departments such as BHEL, Ministry of Environment, Forest and Climate Change, Bureau of Indian Standard, Military Engineering Services, FSSAI have mentioned standards i.e., accreditation as per ISO IEC 17025:2005 in their circulars instead of mentioning NABL accreditation.

The Informant stated that vide letter dated 11.12.2013, he had requested OP-1 to review its circulars orders imposing the unfair condition i.e., requiring the contractors to get the construction materials tested from NABL accredited laboratories.

However, neither amendment was made by OP-1 nor any clear grounds were given for not undertaking such amendments.

Further, the Informant alleged that OP-2 by incorporating the condition in its Works Manual that the Lab must be NABL approved, has compelled the laboratories to first approach NABL if they want business from OP-2 or any other departments Ministry following the guidelines of OP-2.

It is alleged that due to this condition, the laboratories are left with no choice but to approach NABL for accreditation even though there may be more accreditation bodies available in India.

It is averred that the condition that the laboratories engaged for testing construction material must be accredited by NABL is an arbitrary and unreasonable condition imposed by the OPs which is adversely affecting competition in the market.

The Informant has submitted that NABL is only an accreditation body that accredits laboratories as per international standard ISO IEC 17025:2005.

It is argued that accreditation is not mandatory but it merely adds a level of confidence as accredited means that an accreditation body has independently checked that the laboratory operates according to international standards.

It is submitted that the information received from the DST and NABL under the Right to Information Act, 2005 (the RTI Act) shows that neither NABL is the sole accreditation body authorised by the Government of India to accredit laboratories for testing and calibration activities nor it is necessary for an accreditation body to take permission from DST to run accreditation programmes in India.

Accordingly, it is alleged that the condition imposed by the OPs is unfair and biased in favour of one accreditation body without any basis.

OPs have denied the above allegations of the Informant and have submitted that the entire case is based on erroneous facts and misleading statements with the ulterior motive to tarnish the credibility and image of the OPs.

In their Affidavit submitted to the Commission, OPs have stated that their role is limited to planning, designing, construction and maintenance of the Government assets and that they are not operating in the market for services of accreditation of laboratories in India, except for laying down norms as to the authorization of accreditation bodies for specific purposes.

It is averred that they had issued circulars laying down norms and guidelines under MP Works Department Manual and CPWD Works Manual respectively which are their reference documents for providing a basic framework for planning, designing and execution of construction work.

As such, their conduct does not relate to the above-stated relevant market.

Hence, the conduct of OPs cannot be construed to be in violation of the provisions of the Act.

OP-1 has averred that it had only adopted the norms in vogue in the Ministry of Road Transport and Highways (MORTH), Government of India while issuing the circulars prescribing the testing of materials through NABL approved laboratories.

It is submitted that MORTH while sanctioning road works for the State of Madhya Pradesh made it compulsory to get independent quality control tests of all items from any of the NABL accredited laboratories as per IRC: SP: 94-2011.

Consequently, the two circulars dated 13.09.2012 and 16.09.2013 were issued by OP-1 adopting the norms of MORTH.

Further, OP-1 has stated that, in general, where MPPWD does not have specifications or norms on an issue in the MP Works Department Manual, the provisions and guidelines of CPWD and MORTH are adopted.

With respect to the CPWD Office Memorandum Number 308 dated 29.05.2014, which modified Para 53.20 of the CPWD Works Manual-2014 and required that outside private laboratories must be NABL approved, OP-2 has submitted that in this Office Memorandum, preference is given to laboratories owned or funded by the Central or State Government Indian Institute of Technology (IIT) or National Institute of Technology (NIT) laboratories Government Engineering College laboratories etc.

over the outside private laboratories to ensure that materials of stipulated quality are used in construction works.

Private laboratories may be approved if Government laboratories are not available in the vicinity of the project.

In terms of the provision, outside private laboratories are required to be accredited by NABL and also approved by the Additional Director General, CPWD, so that uniform quality can be ensured at the construction stage itself by process control in a pre-determined manner rather than quality control at the post construction stage i.e. after the damage has occurred.

Further highlighting the reason for the above provision, OP-2 has stated that in the Government laboratories, the tests are conducted by technically competent officials recruited through a prescribed selection procedure of Government.

Further, all government institutes, IITs, NITs, Central and State Research Centres, Centrally and State funded laboratories are centres for excellence and have high quality faculty and students.

On the other hand, the private labs follow their own procedure in recruiting technicians staffs and use apparatus machinery of their choice for testing.

Further, the Government laboratories are subjected to audit, vigilance and quality control periodically which ensure the reliability of the test results and the quality of materials used in construction work.

On the other hand, there are no checks on the private laboratories regarding the competency, qualification and experience of staff and availability of required machineries.

Hence, in case of private laboratories, accreditation by NABL, an autonomous body under the aegis of the Government of India, plays the role of accrediting labs as per international norms.

OPs have averred that had NABL been made a party by the Informant in the present matter, more specific information with respect to NABL would have been available for adjudication.

Having said that, OPs have explained in their submissions that laboratory accreditation is a procedure by which an authoritative body gives formal recognition of technical competence for specific tests measurements, based on third party assessment and following international standards.

It is stated that laboratory accreditation services to testing and calibration laboratories are provided by NABL in accordance with ISO IEC 17025:2005 General Requirements for the Competence of Testing and Calibration Laboratories.

Further, NABL has established its accreditation system as per ISO IEC: 17011: 2004 Conformity Assessment - General Requirements for Accreditation Bodies accrediting Conformity Assessment Bodies.

NABL is also a full signatory to the International Laboratory Accreditation Cooperation (ILAC) and Asia Pacific Laboratory Accreditation Cooperation (APLAC) Mutual Recognition Arrangement (MRA) which are based on mutual evaluation and acceptance by other MRA signatories.

Such international arrangements facilitate acceptance of tests calibration of results between countries which the MRA signatories represent.

Referring to the three accreditation bodies mentioned by the Informant in the information, OPs have stated that while NABL is a full member of ILAC offering accreditation as per various standards including ISO IEC 17025:2005, ACCAB is an associate member of ILAC whose scope of activities is not known.

Further, National Accreditation Board for Certification Bodies (NABCB) is an ILAC MRA signatory but with a different scope i.e., Inspection (ISO IEC: 17020) and it does not offer an accreditation program for material lab testing and calibration.

OPs have stated that though accreditation to laboratories as per ISO IEC 17025:2005 international standard can be given by any accreditation body whose system is as per ISO IEC 17011:2004 international standard, the users of the services of the accreditation body also consider other credentials such as whether it is a full signatory to ILAC APLAC MRA, etc.

and it is the prerogative of the user, whether it is the Government Regulator Buyer, to mention what they want.

It is further submitted that to the best of OPs knowledge, there is no laboratory accreditation body in India other than NABL, having ILAC APLAC full MRA signatory status for grant of accreditation as per ISO IEC 17025 international standard.

Further, OP-2 has submitted that the credibility and primacy of NABL has been accepted in various judicial decisions including a recent judgment dated 13.08.2015 of a division bench of the Honble High Court of Bombay in M section Nestle India Limited v. The Food Safety and Standards Authority of India Ors.

as well as in the Guidelines for Recognition of Environmental Laboratories under the Environment (Protection) Act, 1986 and Food Safety and Standard Rules, 2011.

Having considered the above submissions of the OPs, it appears that NABL enjoys a unique position among the accreditation bodies that exist in India for accreditation of laboratories as per ISO IEC 17025 international standard, as detailed above.

Accordingly, the preference of OPs for NABL accredited laboratories is evident.

However, it is also observed that from the averments of the Informant as well as OPs that NABL is not the only accreditation body which can certify laboratories as per the applicable international standards.

Accordingly, the issue before the Commission for examination is whether the condition imposed by OPs requiring the contractors to check the quality of the construction materials tested from NABL accredited laboratories instead of prescribing the quality standard i.e., material testing from a laboratory accredited as per ISO IEC 17025:2005 standard wherein the said laboratory is assigned by an accreditation body operating as per ISO IEC 17011:2004 standard, is anticompetitive or not? The Commission notes that the basic objective of competition law is promotion and protection of the competitive process and ensuring a level-playing field for all market players that will help markets to be competitive.

Thus, in public procurement processes, it is desirable that the conditions imposed on suppliers are not such that they exclude firms from the market.

Rather endeavour should be to promote competition by being more flexible so that more number of firms would be eligible to provide services.

Also, the conditions should be such that they ensure equal and non- discriminatory treatment as well as the best possible environment for competition.

Accordingly, when a department of the Government such as OPs require quality certificates in their tender conditions, the terms must not specify any specific accrediting entity rather the terms should specify the standards.

This would not only enable participation by more laboratories but also ensure that the laboratories which have been accredited as per the stipulated international standards are not discriminated based on the accreditation body that certifies them.

Thus, in light of the above, the condition imposed by the OPs that private laboratories be approved accredited by NABL seems to be anti-competitive as it appears to be favouring a single accreditation body restricting the number of eligible private laboratories whose services can be procured indirectly by OPs.

Accordingly, the Commission is of the considered opinion that imposition of such a condition by MPPWD and CPWD is in contravention of the provisions of Section 4(2) (a)(i) of the Act.

However, it is noted that OP-2 in its additional Affidavit dated 25.11.2016 has brought to the notice of the Commission that, in a recent development, Para 53.20 of the CPWD Works Manual-2014 has been modified vide Office Memorandum dated 22.11.2016.

The sentence Lab must be NABL approved in Para 53.20 has now been substituted by the sentence For the purpose of Lab accreditation by NABL or any other accreditation body which operates in accordance with ISO IEC 17011 and accredits labs as per ISO IEC 17025 for testing and calibration scopes shall be eligible.

Therefore, presently, OP-2/CPWD is not referring to any particular accreditation body like NABL but only to an international standard.

The Commission notes that the above modification made by OP-2 is in compliance with the principles of competition law and will ultimately enhance the competition in the market.

Further, from the submission of MPPWD dated 24.11.2016, it is noted that, in a recent development of its own, MPPWD has created its own well-equipped laboratories at Circle Level within the State of Madhya Pradesh with one Central Laboratory in the capital at Bhopal which is well equipped with latest testing equipment.

In view of this development, it has submitted that the condition of 20 material testing through NABL accredited laboratories is no more a mandatory condition and the testing from the Government owned circle laboratories and Central Laboratories would assure the quality of work.

In this regard, the Commission observes that to ensure quality in public procurement processes certain criteria have to be laid down and it is essential that this discretion vest with the OPs.

All that competition law requires is that the processes be fair, transparent and designed to promote competition.

Thus, when a department decides to give preference to its own laboratories over private laboratories to ensure quality, it cannot be said that competition is hampered.

Such choice is the prerogative of the department.

However, when a department procures services from outside entities, it has to be careful that the conditions that it prescribes do not impair competition.

While OP-2 has taken the above into consideration and modified the CPWD Works Manual-2014, OP-1 also has stated that it has made certain modifications so that the condition of 20 material testing through NABL accredited laboratories is no more a mandatory condition.

However, the Commission deems it appropriate to prescribe that OP-1 also adopts the modification made by OP-2 in the CPWD manual or makes similar modification to the MPPWD Works Manual to ensure compliance with the principles of competition law.

Thus, in the light of the recent developments brought to the notice of the Commission by OP-1 and OP-2 vide their respective affidavits filed on 25.11.2016, the Commission is of the view that there exists no prima facie competition issue remaining in the matter for investigation.

Accordingly, the case is closed under the provisions of Section 26(2) of the Act.

Before concluding, the Commission also deems it appropriate to consider the application dated 23.04.2016 filed by the Informant with the Commission whereby the Informant had inter alia urged that the Commission take action against NABL under Section 45(1) of the Act for making various false information available on its website.

In this regard, the Commission notes that neither NABL is a party to the proceedings in this case nor was it called upon to furnish information at any stage in the matter.

Accordingly, the application filed by the Informant is not maintainable and the same is dismissed.

The Secretary is directed to inform all concerned accordingly.

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The Commission has considered the present matter on the basis of an information received from PRIMORDIAL Systems Pvt.

Limited (hereinafter referred to as the Informant) on 19.08.2011 under Section 19 (1) (a) of the Competition Act, 2002 (hereinafter referred to as the Act).

The matter relates to alleged abuse of dominant position by Indian Newspaper Society-INS (hereinafter referred to as Opposite Party No. 1), Sh.

Raman K. Chugh (hereinafter referred to as Opposite Party Number 2) and Hype Hike Advertising Inc. (hereinafter referred to as Opposite Party Number 3) in the provision of advertisement services in print media in India.

The brief facts and allegations as per information in the case are as under: 2.1.

As per the information, the informant is a company incorporated under the provisions of Companies Act, 1956 and is engaged in the provision of skill based education services to the young people in India through its own educational institution India Institute of Learning Advanced Development (hereinafter referred to as INLEAD) and by entering into strategic alliance with other organisations in India like India Tourism Development Corporation Ltd., Sri Ram College of Commerce, Delhi University etc.

The Opposite Party Number 1 is a registered society of print media newspaper publishers in India and is primarily engaged in giving accreditation to different advertising agencies for publication of advertisement of their clients in various print media who are its members.

Besides, it is also responsible for maintenance of financial discipline and safety of the business interest of its members.

The Opposite Party Number 3 is an accredited advertisement agency of Opposite Party Number 1 having its office at Gurgaon, Haryana and is engaged in the provision of advertisement services including the responsibility of booking space in various print media to its clients as per their requirements.

The Opposite Party Number 2 is proprietor of Opposite Party Number 3 and is working as an advertising agent.

It has been submitted by the informant that as it is in the business of provision of skill enhancement education programmes, publicity plays an important role in its business operation and development for which it has to depend on different print and other media for advertisements of its programmes.

As per the information, in October, 2010, the Opposite Party Number 2 approached the informant to work as its agent for media publications advertisement and assured that his advertisement agency shall provide end-to-end advertising marketing collateral design and layout services to the informant and advertise the contents in different print media at the best negotiated rates.

Further, the Opposite Party Number 2 assured the informant to provide a 10 week payment credit cycle from the date of publication of an advertisement to the payment due date.

The Informant agreed with the said assurance and terms and conditions and appointed the Opposite Party Number 2 along with agency as the Agency on Record for its media publication with effect from 05.10.2010.

On the basis of the agreed terms and conditions, the Opposite Party Number 2 carried out the assignments of the informant smoothly for about nine months.

Thereafter, citing the reason of internal financial problems, the Opposite Party Number 2 declined to adhere to the promise made by him with regard to the price for advertisement design layout services and 10 week credit cycle for payment.

On several occasions, informally, the informant tried to resolve this issue with the Opposite Parties but it could not succeed as the Opposite Party No. 2 on every occasion asked for more time to establish his agencys delivery capabilities.

The informant has alleged that while on the one hand the Opposite Party No. 2 continued to neglect the provision of advertisement agency services, on the other hand he demanded more money over and above his initial commitments from the informant.

The informant appointed another agency for the advertisement services on 14.06.2011 because of the undue demand of money and negligence in the provision of advertisement agency services by the Opposite Party Number 2.

However, the informant assured the Opposite Party Number 2 to release its balance advertisements.

The informant has further submitted that as of 14.06.2011, there has been no payment of the Opposite Party Number 2 due on it for the completed credit cycles.

For the payments due in the subsequent credit cycles, the Opposite Party Number 2 has to submit all account details along with documented advertisement release clippings and details of unpublished release orders to the informant.

In response, the Opposite Party Number 2 through an e-mail on 16.06.2011 threatened the informant to withdraw from its on-going ad- campaign and claimed pending payments of Rs 24, 22, 524 (Rupees Twenty Four Lac Twenty Two Thousand Five Hundred Twenty Four) for its advertisement agency services without providing the proofs of advertisements and invoices from the newspapers media and also demanded an additional amount of Rs. 16, 00, 612 (Rupees Sixteen Lac Six Hundred Twelve) for the services that has never been rendered to the informant.

The informant has alleged that the Opposite Party Number 2 without any just cause and without any payment being legally due on it has declined to release its pending advertisements which have already been booked under subsidized package deals with the media publications.

The Opposite Party No. 2 continues to claim payments for the very same advertisements.

The informant has alleged that the aforesaid behaviour of the Opposite Parties amounts to the denial of services without any just cause which is anti-competitive as per section 4 (2) (c) of the Act.

The informant has also alleged that because of Opposite Party Number 2, its media campaign in the peak admission season for July 2011 batch admission was completely affected and its business suffered a lot which is irreparable.

It has also been submitted that because of the said acts, there was a revenue loss of an amount of Rs. 48, 03,326 to the informant.

The informant has further submitted that the Opposite Party Number 2 had assured the informant to advertise publish its advertisement content in special education supplements in the newspapers, but in effect he was getting them published in irrelevant sections of the newspapers media.

It has been alleged that the Opposite Party Number 2 has visited the office of the informant on several occasions to meet its senior officials and tried to offer them bribes in terms of cuts and commissions with the intention to make the informant agree to its unjust and unfair payment demands and to make the informant continue to overlook the shortfalls in its service delivery.

The Opposite Party No, 2 has unfairly tried to retain the business of the informant as it was one of the largest client of the Opposite Party Number 2 and provided a turnover of nearly 40 -50 of its entire business.

It has also been alleged that Opposite Party Number 2 is threatening to malign the reputation of the informant in the market and blacklist it as an advertiser in the print media.

The Opposite Party Number 2 has sent an e-mail to all the multiple media publications accusing the informant for non-payment of its dues and requested them not to publish the advertisement of the informant.

It has also filed a complaint with Opposite Party Number 1 requesting it to issue an advisory to all the media publications not to carry out the advertisements of the informant.

According to the informant, instead of resolving the dispute between the informant and the Opposite Party Number 2, the Opposite Party Number 1 wrote a letter to the informant asking it to pay the pending dues of Rs. 37 Lac (Rupees Thirty Seven Lakh) to Opposite Party Number 2.

The informant approached the Opposite Party Number 1 and explained that the claims of the Opposite Party Number 2 are false and the matter is sub-judice before the High Court of Delhi.

But, instead of listening to the submissions of the informant, the Opposite Party Number 1 has threatened the informant to issue an advisory to its members advising them to not to publish its advertisements in future.

Further, Opposite Party Number 1 has been constantly pressurizing the informant to surrender to the illegal and undue demands of the Opposite Party Number 2.

The informant has alleged that because of its dominant position in the market of advertisement services, Opposite party Number 1 is compelling it to pay the illegal and undue demands of the Opposite Party Number 2, which amounts to abuse of dominant position as per the provisions of Section 4 (1) and 4 (2) (b) (i) of the Act.

The Commission considered the matter in its meetings held on 01.09.2011, 08.09.2011, 13.09.2011 and 28.09.2011.

Mr. Sumit Sharma, Advocate appeared on behalf of the informant on 28.09.2011 and made a request to withdraw the information filed before the Commission.

The Commission has examined the allegations of the informant in light of the provisions of the Act and evidences available on record.

The Commission observes that any issues relating to competition ought to be looked into with reference to the relevant market, which happens to be the provision of advertisement services in print media in India in the instant case.

On careful examination of the whole matter, the Commission further observes that the basic allegations in the matter is that being in a dominant position in the market of provision of advertisement services in print media, the Opposite Party Number 1 has abused its dominant position by compelling the informant to pay the illegal and undue demands of the Opposite Party Number 2, which according to the informant is anti- competitive as per Section 4 (2) (b) (i) of the Act.

Further, by declining to release the pending advertisements and by demanding undue amounts from the informant, the Opposite Party Number 2 has abused its dominant position in violation of Section 4 (2) (c) of the Act.

The Commission notes that the informant is a client of Opposite Party Number 2.

There is allegation in the information to the effect that the informant has been threatened of denial to publish its advertisements because of some alleged pending dues.

However, the Commission feels that this in itself, in any manner, cannot be said to be denial of market access or limiting the provision of advertisement services in India.

The Commission also notes that the allegations in the information pertain to dispute between the two parties and has no bearing on the issues concerning competition in the relevant market in India.

Thus, prima facie, there appears to be no case of violation of any of the provisions of Section 4 of the Act in the matter.

The Commission further observes that prima-facie the case also does not involve any anti-competitive agreement which may be considered to be violative of the provisions of Section 3(3) and Section 3(4) of the Act.

The informant has also not alleged any violation of Section 3 of the Act by the Opposite Parties in the matter.

The Commission, in view of the above discussion, holds that there is no prima facie case made out for making a reference to the Director General (DG) for conducting investigation into this matter under Section 26 (1) of the Act.

The Commission notes that the advocate of the informant has also sought to withdraw the information filed before the Commission.

In light of foregoing, the Commission deems it fit to close the matter relating to this information under Section 26(2) of the Act.

The Secretary is directed to communicate the decision of the Commission to the informant accordingly.

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