On August 24, 2022, pursuant to a complaint filed by “Apaar Infratech Private Limited” (‘Informant’), the CCI dismissed allegations of cartelization and abuse of dominance under the provisions of Section 3 and Section 4 of the Competition Act.^[1]

The Informant levelled allegations against Maharashtra State Road Development Corporation Limited (‘OP-1’), Nagpur Mumbai Super Communication Expressway Limited (‘OP-2’), Penetron India Private Limited (‘OP-3’), Penetron International Limited Inc. (‘OP-4’), Crystal Deep Seal Corporation Limited (‘OP-5’), CD Seal Waterproofing (‘OP-6’) and Slurry Inc. (‘OP-7’) (collectively, referred to as ‘OPs’)

The allegations concern the ‘MSM Project’ (which is a Heavy Infrastructure Project (‘HIP’)) being constructed by OP-2 in the State of Maharashtra under the overall supervision, guidance, and direction of OP-1. According to the procedure for identification of various input materials in construction, the entire identification and approval of all the materials was with OP-1. It identified and prepared an ‘Identified Vendors List’ for different materials, including Crystalline Durability Admixture (‘CDA’), which is used as a waterproofing chemical in the MSM Project. The main hurdle for the Informant to get into the Identified Vendors List was the inclusion of a qualifying criterion of Indian Road Congress (‘IRC’) accreditation.

The Informant alleged:

1. Cartelization regarding provision of CDA: OP-3, OP-4 and OP-5 entered into an agreement regarding provision of CDA to OP-1 and getting the entire market share for OP-3, thus causing an appreciable adverse effect on competition (‘AAEC’) and violating the provisions of Section 3(3)(a) and 3(3)(b) read with Section 3(1) of the Competition Act.
2. Insertion of IRC: Abuse of dominant position by OP-1 by way of insertion of IRC accreditation as a condition for procurement of CDA for MSM.

In its analysis, the CCI observed from the Information that there were inter-connections between OP-3, OP-4 and OP-5 with OP-6 and OP-7. As per the Information, OP-3 is an importer of Penetron Products in India from OP-4, and OP-5 is stated to be related to OP-4, an international enterprise, which is situated in New York, United States, having the same address as well as the same CEO. In this regard, the CCI noted that it has previously held that common ownership is not sufficient to record any findings of contravention of the provisions of Section 3 of the Competition Act, relying on Re: Alleged cartelisation in road construction work in the State of Uttar Pradesh (Suo Motu Case No. 03 of 2018).

As for the allegations under provisions of Section 4, the CCI delineated the market as “Market for procurement of Crystalline Durability Admixture (CDA) in HIPs in India”. The CCI observed that there are many public and private sector companies in India that are presently involved in developing numerous HIPs across India. Thus, OP- 1 cannot be said to be the dominant player in the relevant market.

Accordingly, the CCI dismissed the complaint.

[1] Case No. 24 of 2022.