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4.3 It was also contended that the allegations of the Informant are not maintainable as GDA is not a profit making organization. GDA constructs houses for general public and work out their final price on the basis of actual construction cost incurred on the project after completion of the work which is based on the costing procedure as defined in the Guidelines for costing issued by the Government of Uttar Pradesh. It is further submitted that GDA is not an 'enterprise' in terms of the provisions of Section 2(h) of the Act and announcement of the Scheme for allotment of EWS flats in the year 2008 was a glaring example of sovereign function. Any activity of the Government relatable to sovereign functions is not included under the definition of 'enterprise' as per the provisions of the Act. It was contended that since GDA is not an 'enterprise' as per the provisions of the Act, it cannot be subjected to the jurisdiction of the Commission.

13. Further, the Hon'ble erstwhile COMPAT in its order dated 01.07.2016 in the matter of 'India Trade Promotion Organization v. Competition Commission of India and Others', Appeal No. 36 of 2014, has observed that the functions which are integral part of the Government and which are inalienable, are 'sovereign functions' and commercial actions/ trading activities and actions, which can either be delegated or performed by the third parties, are alienable and are not 'sovereign functions'. The relevant excerpt from the said judgment of the Hon'ble erstwhile COMPAT is produced below:

"....If the term 'enterprise', as defined in Section 2 (h) is read in conjunction with the definitions of the terms 'person' and 'service', it becomes clear that the legislature has designedly included government departments in relation to any activity relating to 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 first part of the definition of 'service' makes it clear that service of any description, which is made available to potential users, falls within the ambit of Section 2 (h). 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 'enterprise'. I 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. It is also apposite to mention that Section 55 of the Act empowers the Government to issue notification to exempt from the application of this Act or any provision thereof any enterprise which perform a sovereign function on behalf of the Central Government or the State Government but, in its wisdom, the Central Government had not issued any notification granting exemption to the appellant. This implies that the Central Government had not considered the appellant to be an enterprise performing sovereign functions on behalf of the Central Government.

Although, the term 'sovereign function' has not been defined in the Constitution or the Act, but the same has acquired a definite meaning. It has been repeatedly held by the Courts that sovereign functions of the State/ Government are those which are inalienable. These include enactment of laws, the administration justice, the maintenance of law and order, signing of treaties, meeting punishment to those found guilty committing crime. None of these and similar functions of the State can be delegated or performed by a third party or a private agency. In contrast, any activity relating to trade, business, commerce or like is a non- sovereign function because the same can be performed by any private party/entity. To put it differently, the functions which are integral part of the Government and which are inalienable are 'sovereign functions' and commercial actions/trading activities and actions, which can either be delegated or performed by the third parties are alienable and are not treated as 'sovereign functions'."(emphasis supplied)