Introduction
The Indian legal framework governing the real estate sector is shaped by two prominent enactments: one being the Real Estate (Regulation and Development) Act, 2016 ("RERA") and the Competition Act, 2002 ("Competition Act"). While RERA was introduced as a sector-specific legislation to regulate transactions between promoters and allottees and to address buyer grievances, the Competition Act acted as a broader market-regulatory statute designed to maintain competition and prohibit anti-competitive practices, including abuse of dominance.
Despite distinct legislative objectives, realistic overlaps tend to surface. Several instances of builder conduct, such as imposition of one-sided agreements, arbitrary changes to layout plans, and delay in project deliveries have triggered objections under both statutes. These parallel proceedings have raised legal concerns around jurisdictional scope and co-existence of remedies. The paper seeks to examine and analyse the statutory design, jurisprudence and points of intersection between the two statutes with a view to comprehend how they functionally converge and diverge.
Objectives and Scope
The Real Estate (Regulation and Development) Act, 2016
RERA establishes Regulatory Authorities at the state level, which are authorized to oversee project registration, monitor compliance and adjudicate disputes between promoters and buyers.
Key provisions relevant to this discussion include:
- Section 4: Mandatory project registration with disclosures on sanctioned plans, timelines and promoter details.
- Section 11: Duties of promoters, including adherence to approved plans and timelines.
- Sections 12 to 18: Rights and obligations of allottees and liability for delay, non-completion or deviation.
- Section 31: Confers right to file complaints before the Authority or Adjudicating Officer.
- Sections 59–72: Penalties for non-compliance, including imprisonment and compensation.
RERA operates in a transactional and sector-specific domain, with emphasis on individual grievance redressal and consumer protection.
The Competition Act, 2002
The Competition Act is an economic legislation enforced by the Competition Commission of India ("CCI"). It seeks to prevent practices having adverse effects on competition, promote consumer welfare and ensure freedom of trade.
Key relevant provisions include:
- Section 3: Prohibition of anti-competitive agreements, including collusion, tie-ins, and bid-rigging.
- Section 4: Prohibition of abuse of dominant position, such as imposing unfair or discriminatory conditions.
- Sections 19–27: Powers of inquiry, investigation, and enforcement vested in the CCI.
The Competition Act is sector-neutral and applies to any enterprise or group engaged in an economic activity. Its focuses on market structure, consumer welfare, and deterrence of anti-competitive practices at a fundamental level.
Points of Convergence
Despite the doctrinal difference, RERA being regulatory and the Competition Act being economic, certain demeanours in the real estate sector may fall under both statutes.
- Unilateral modification of building plans: Violation of Section 11 of RERA and potentially abusive conduct under Section 4 of the Competition Act.
- Imposition of standard-form one-sided agreements: Scrutinized under RERA as an unfair practice and under Section 4(2)(a)(i) of the Competition Act as abuse of dominant position.
- Delayed possession and lack of refund: Penalized under RERA and in cases of systemic market-wide practice, may constitute exclusionary or exploitative conduct under the Competition Act.
Judicial Precedents
1. Belaire Owners' Association v. DLF Ltd., 2011
This case marked a significant intervention by the commission in the real estate sector. The Informants representing the allottees of the Belaire residential project in Gurugram alleged that DLF Limited had abused it's dominant position by unilaterally altering the terms of the buyer agreement which included changes in the layout plans, increase in the number of floors and delayed possession, all of which was without the consent of the buyer.
The Commission had observed that the agreement between DLF and the allottees were heavily one-sided with unfair clauses that had allowed DLF to modify and abandon the project with liberty while additionally imposing severe restrictions on the buyers.
This case predated the enactment of RERA and illustrated how the CCI directly addressed project-level grievances where the crossroads of real estate and competition law merged. The commission had concluded that DLF had abused its dominance and penalized them with a penalty of 630 Crores under Section 27(b) of the Act.
2. Pankaj Agarwal v. DLF Gurgaon Home Developers Private Limited
The case in question focused on the issue of one-sided development agreements that largely benefited the developers. CCI examined unfair contract terms imposed on home buyers, such as the requirement to pay extra charges labelled as development fees and clauses allowing the developer to forfeit advance payments if the agreement was terminated. After considering the parties' submissions, the CCI found DLF Gurgaon Home Developers Private Limited guilty of abusing its dominant market position. However, no new penalty was imposed since a fine of Rs. 630 crores had already been levied on DLF Limited in the Belaire Owners Association v. DLF Limited case for similar conduct during the same period.
3. Sunil Bansal & Others v M/s Jaiprakash Associates Ltd & Others
The issue remains unresolved, underscoring that CCI continues to face challenges in defining the relevant product market. This was clearly evident in the investigation against Jaiprakash Associates Ltd for allegedly abusing its dominant position in Noida and Greater Noida, areas about 30 kilometres from Delhi. Initially, the CCI's Director-General ("DG") investigated the market for residential apartments in these areas and concluded that Jaiprakash Associates Limited was not dominant. However, the CCI then instructed the DG to consider the market as 'integrated townships' instead. Under this revised market definition, the DG found Jaiprakash Associates to be dominant. Despite this, the CCI narrowly rejected this definition, with a split decision where two out of five members dissented.
Conclusion
The Real Estate (Regulation and Development) Act, 2016 and the Competition Act, 2002 serve distinct but occasionally overlapping functions in governance of the real estate sector. RERA is tailored to protect buyers and enforce project-level compliance, while the Competition Act is aimed at correcting market distortions and ensuring long-term consumer welfare through competitive conditions.
In instances where builder conduct violates both contractual and competition norms, the current legal framework permits recourse under both statutes. However, the absence of a statutory or procedural framework for inter-authority consultation creates a risk of inconsistent adjudication and regulatory inefficiency.
The interplay between RERA and Competition Law in India's real estate sector exemplifies a balanced regulatory approach that combines sector-specific consumer protection with broad market oversight. Rather than operating in isolation, these frameworks work in tandem to address the unique challenges of the real estate market, ensuring transparency, fairness, and competition. This coordinated dual jurisdiction not only leverages the strengths of both laws but also minimizes conflicts and inefficiencies, ultimately promoting consumer welfare and a more efficient, competitive real estate industry.
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