Ibrat Faizan vs Omaxe Buildhome Private Limited

Ibrat Faizan vs Omaxe Buildhome Private Limited

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3072 OF 2022

Ibrat Faizan … Appellant

Versus

Omaxe Buildhome Private Limited … Respondent

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned interim order

passed by the High Court of Delhi at New Delhi dated 22.12.2021

passed in CM(M) No. 1196/2021, by which the learned Single Judge of

the High Court has stayed order dated 9.12.2021 passed by the National

Consumer Disputes Redressal Commission, New Delhi (for short,

‘National Commission’), while hearing a writ petition filed under Article

227 of the Constitution of India, in which the respondent herein

challenged the judgment and order passed by the National Commission

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in First Appeal No. 250/2021, the original respondent before the High

Court has preferred the present appeal.

2. Pursuant to the earlier order passed by this Court dated

21.03.2022 in the special leave petition, by a detailed order dated

31.03.2022, the learned Single Judge of the High Court has answered

the question of jurisdiction and has held that against the order passed by

the National Commission dated 9.12.2021 in First appeal No. 250/2021,

a writ petition would be maintainable under Article 227 of the Constitution

of India. By way of Interlocutory Application No. 58657/2022, the

appellant herein has sought permission to amend the special leave

petition, which is allowed.

3. Feeling aggrieved and dissatisfied with the order passed by the

High Court holding that against the order passed by the National

Commission passed in an appeal under Section 58(1)(a)(iii) of the

Consumer Protection Act, 2019 (hereinafter referred to as the ‘2019

Act’), a writ petition under Article 227 of the Constitution of India would

be maintainable, the original respondent before the High Court has

preferred the present appeal before this Court.

4. The jurisdiction of the High Court under Article 227 of the

Constitution of India, against the order passed by the National

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Commission, in an appeal under Section 58(1)(a)(iii) of the 2019 Act, is

the moot question for consideration before this Court.

5. The facts leading to the present appeal in a nutshell are as under:

The appellant herein booked a flat in the project floated by the

respondent herein. According to the appellant herein, despite the

payment of sale consideration, the possession of the flat was not

handed over and therefore the appellant filed a consumer complaint

before the Delhi State Consumer Redressal Forum (for short, ‘State

Commission’) on 10.08.2013 on the grounds of deficiency of service and

unfair trade practice. By order dated 16.10.2020, the State Commission

allowed the said complaint directing the respondent herein to handover

possession of the flat booked by the appellant subject to their meeting

the requirements. The State Commission also directed the respondent

herein to pay to the complainant – appellant herein compensation for the

delayed period in the form of simple interest at the rate of 9% for the

period from the date of possession of the flat was due to be delivered till

the delivery of the possession.

5.1 The appellant herein – original complainant filed an execution and

contempt petition before the State Commission. Vide order dated

12.03.2021, the State Commission directed the decree holder –

appellant herein to place on record the details of the bank accounts or

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the properties of the respondent herein which are to be attached for not

implementing the judgment and order dated 16.10.2020 passed by the

State Commission. Thereafter, the respondent-builder preferred an

appeal before the National Commission. Vide order dated 30.03.2021,

the National Commission granted stay of the State Commission’s order,

subject to deposit of the entire cost of the flat along with 9% interest on

the amount paid till date in the Registry of the State Commission or face

the execution action by the State Commission.

Feeling aggrieved and dissatisfied with the order dated 30.03.2021

passed by the National Commission, the respondent herein preferred

writ petition before the High Court by way of Writ CM(M) No. 374/2021

under Article 227 of the Constitution of India contending, inter alia, that

the National Commission ought not to have directed the builder to

deposit the entire cost of the apartment along with the compensation

awarded by the State Commission. The High Court, vide order dated

25.05.2021, stayed the operation of the order of National Commission

dated 30.03.2021, subject to the builder depositing with the State

Commission 50% of the amount directed to be deposited by way of

interest towards compensation within four weeks. A further order came

to be passed by the High Court on 17.08.2021 in Writ CM(M) No.

374/2021. Thereafter, the National Commission passed a final order in

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First Appeal No. 250/2021 vide order dated 09.12.2021 and confirmed

the order passed by the State Commission dated 16.10.2020.

5.2 Feeling aggrieved and dissatisfied with the final order dated

09.12.2021 passed by the National Commission, confirming the order

dated 16.10.2020 passed by the State Commission, the respondentbuilder again approached the High Court by way of present writ petition

being CM(M) No. 1196/2021. By the impugned interim order dated

22.12.2021, till the next date of hearing, the High Court has stayed the

operation of final order dated 09.12.2021 passed by the National

Commission in First Appeal No. 250/2021.

5.4 Feeling aggrieved and dissatisfied with the impugned interim order

passed by the High Court in Writ CM(M) No. 1196/2021, under Article

227 of the Constitution of India, the original complainant has preferred

the present appeal.

6. At the time of admission hearing via Video Conferencing on

21.03.2022, this Court passed the following order:

“The jurisdiction of the High Court, under Article 227 of the Constitution of

India, against the order passed by the National Consumer Disputes

Redressal Commission (NCDRC) is the moot question for consideration.

As the matter is pending before the High Court and the next date of

hearing is reported to be 29.03.2022, we request the High Court to decide

the issue with respect to the jurisdiction of the High Court, under Article

227 of the Constitution of India, against the order passed by the National

Consumer Disputes Redressal Commission (NCDRC) first which may be

decided on or before 18.04.2022. The decision of the High Court on the

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jurisdiction shall be placed before this Court on or before the next date of

hearing.

Put up on 21.04.2022.

It is agreed by learned counsel appearing for the respective parties that

they shall not ask for any adjournment on any ground whatsoever before

the High Court.”

7. That accordingly, by the impugned further order dated 31.03.2022,

the learned Single Judge of the High Court has decided on the question

of jurisdiction and it has held that against the order passed by the

National Commission dated 09.12.2021 passed in First appeal No.

250/2021, impugned before it, a writ petition under Article 227 of the

Constitution of India would be maintainable. By way of amendment,

which was allowed, the subsequent order dated 31.03.2022 is also

challenged and is now the subject matter before this Court in the present

appeal.

8. Shri Sudeepta Kumar Pal, learned counsel appearing on behalf of

the appellant has vehemently submitted that against the order passed by

the National Commission in First Appeal No. 250/2021, a writ petition

before the High Court under Article 227 of the Constitution of India would

not be maintainable.

8.1 It is submitted that as such against the order passed by the

National Commission, an appeal provided under Section 27A(1)(c) of the

Consumer Protection Act, 1986 would be maintainable. It is contended

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that without exhausting the said remedy, the High Court ought not to

have entertained the writ petition under Article 227 of the Constitution of

India, which was against the order passed by the National Commission

in First Appeal No. 250/2021.

8.2 In the alternative, it is submitted that assuming that the writ petition

under Article 227 of the Constitution of India against the order passed by

the National Commission, impugned before the High Court, was

maintainable, in that case also, in the limited jurisdiction available under

Article 227 of the Constitution of India, the High Court ought not to have

stayed the order passed by the National Commission dated 09.12.2021

passed in first appeal No. 250/2021.

9. Shri Karanjot Singh Mainee, learned counsel appearing on behalf

of the respondent has vehemently submitted that as the appeal before

the National Commission was under Section 58(1)(a)(iii) of the 2019 Act,

there is no further appeal provided against the order of the National

Commission, as provided to the Supreme Court under section 67 of the

2019 Act, against the order passed by the National Commission under

Section 58(1)(a)(iii) of the 2019 Act. Hence, a writ petition under Article

227 of the Constitution of India would be maintainable. In support of his

submission, learned counsel appearing on behalf of the respondent –

original writ petitioner before the High Court has heavily relied upon the

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decision of this Court in the case of Associated Cement Companies

Limited v. P.N. Sharma, AIR 1965 SC 1595 (paras 44 & 45), and the

subsequent decision of this Court in the case of L. Chandra Kumar v.

Union of India, (1997) 3 SCC 261.

9.1 Making the above submissions and relying upon the aforesaid

decisions, it is submitted that the High Court has rightly observed and

held that against the judgment and order passed by the National

Commission, impugned before the High Court, a writ petition under

Article 227 of the Constitution of India would be maintainable.

10. We have heard learned counsel for the respective parties at

length.

As observed hereinabove, the short question which is posed for

the consideration of this Court is, “whether, against the order passed by

the National Commission in an appeal under Section 58 (1)(a)(iii) of the

2019 Act, a writ petition before the concerned High Court under Article

227 of the Constitution of India would be maintainable?”

11. While answering the aforesaid issue/question, the relevant

provisions of the 2019 Act, which are relevant for our purpose, i.e.,

Sections 58 and 67 are required to be referred to. Sections 58 & 67 of

the 2019 Act read as under:

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“58. Jurisdiction of National Commission.—(1) Subject to the other

provisions of this Act, the National Commission shall have jurisdiction—

(a) to entertain—

(i) complaints where the value of the goods or services paid as

consideration exceeds rupees ten crore:

Provided that where the Central Government deems it necessary

so to do, it may prescribe such other value, as it deems fit;

(ii) complaints against unfair contracts, where the value of goods or

services paid as consideration exceeds ten crore rupees;

(iii) appeals against the orders of any State Commission;

(iv) appeals against the orders of the Central Authority; and

(b) to call for the records and pass appropriate orders in any consumer

dispute which is pending before or has been decided by any State

Commission where it appears to the National Commission that such

State Commission has exercised a jurisdiction not vested in it by law, or

has failed to exercise a jurisdiction so vested, or has acted in the

exercise of its jurisdiction illegally or with material irregularity.

(2) The jurisdiction, powers and authority of the National Commission may

be exercised by Benches thereof and a Bench may be constituted by the

President with one or more members as he may deem fit:

Provided that the senior-most member of the Bench shall preside over

the Bench.

(3) Where the members of a Bench differ in opinion on any point, the

points shall be decided according to the opinion of the majority, if there is a

majority, but if the members are equally divided, they shall state the point

or points on which they differ, and make a reference to the President who

shall either hear the point or points himself or refer the case for hearing on

such point or points by one or more of the other members and such point

or points shall be decided according to the opinion of the majority of the

members who have heard the case, including those who first heard it:

Provided that the President or the other member, as the case may be,

shall give opinion on the point or points so referred within a period of

two months from the date of such reference.

xxx xxx xxx

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67. Appeal against order of National Commission.—Any person,

aggrieved by an order made by the National Commission in exercise of its

powers conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of

Section 58, may prefer an appeal against such order to the Supreme

Court within a period of thirty days from the date of the order:

Provided that the Supreme Court may entertain an appeal after the

expiry of the said period of thirty days if it is satisfied that there was

sufficient cause for not filing it within that period:

Provided further that no appeal by a person who is required to pay any

amount in terms of an order of the National Commission shall be

entertained by the Supreme Court unless that person has deposited fifty

per cent of that amount in the manner as may be prescribed.”

It is not in dispute that in the present case, the appeal before the

National Commission was against the order passed by the State

Commission under Section 47(1)(a) of the 2019 Act. Therefore, against

the order passed by the State Commission passed in a complaint in

exercise of its powers conferred under Section 47(1)(a) of the 2019 Act,

an appeal to the National Commission was maintainable, as provided

under Section 58(1)(a)(iii) of the 2019 Act. As per Section 67 of the 2019

Act, any person, aggrieved by an order made by the National

Commission of its powers conferred by sub-clause (i) or (ii) of clause (a)

of sub-section (1) of Section 58, may prefer an appeal against such order

to the Supreme Court. Therefore, an appeal against the order passed by

the National Commission to this Court would be maintainable only in

case the order is passed by the National Commission in exercise of its

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powers conferred under Section 58(1)(a)(i) or under Section 58(1)(a)(ii)

of the 2019 Act. No further appeal to this Court is provided against the

order passed by the National Commission in exercise of its powers

conferred under Section 58(1)(a)(iii) or under Section 58(1)(a)(iv) of the

2019 Act. In that view of the matter, the remedy which may be available

to the aggrieved party against the order passed by the National

Commission in an appeal under Section 58(1)(a)(iii) or Section 58(1)(a)

(iv) would be to approach the concerned High Court having jurisdiction

under Article 227 of the Constitution of India.

12. Whether the National Commission can be said to be a tribunal for

the purpose of exercise of powers under Article 227 of the Constitution of

India by the High Court is concerned, has been considered by a

Constitution Bench of this Court in the case of Associate Cement

Companies Limited (supra), which is required to be referred to. In

paragraphs 44 and 45, it is observed and held as under:

“44. An authority other than a court may be vested by statute with judicial

power in widely different circumstances, which it would be impossible and

indeed inadvisable to attempt to define exhaustively. The proper thing is to

examine each case as it arises, and to ascertain whether the powers

vested in the authority can be truly described as judicial functions or

judicial powers of the State. For the purpose of this case, it is sufficient to

say that any outside authority empowered by the State to determine

conclusively the rights of two or more contending parties with regard to

any matter in controversy between them satisfies the test of an authority

vested with the judicial powers of the State and may be regarded as a

tribunal within the meaning of Article 136. Such a power of adjudication

implies that the authority must act judicially and must determine the

dispute by ascertainment of the relevant facts on the materials before it

and by application of the relevant law to those facts. This test of a tribunal

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is not meant to be exhaustive, and it may be that other bodies not

satisfying this test are also tribunals. In order to be a tribunal, it is essential

that the power of adjudication must be derived from a statute or a statutory

rule. An authority or body deriving its power of adjudication from an

agreement of the parties, such as a private arbitrator or a tribunal acting

under Section 10-A of the Industrial Disputes Act, 1947, does not satisfy

the test of a tribunal within Article 136. It matters little that such a body or

authority is vested with the trappings of a court. The Arbitration Act, 1940

vests an arbitrator with some of the trappings of a court, so also the

Industrial Disputes Act, 1947 vests an authority acting under Section 10-A

of the Act with many of such trappings, and yet, such bodies and

authorities are not tribunals.

45. The word “tribunal” finds place in Article 227 of the Constitution also,

and I think that there also the word has the same meaning as in Article

136.”

Therefore, the National Commission can be said to be a ‘Tribunal’

which is vested by Statute the powers to determine conclusively the

rights of two or more contending parties with regard to any matter in

controversy between them. Therefore, as observed hereinabove in the

aforesaid decision, it satisfies the test of an authority vested with the

judicial powers of the State and therefore may be regarded as a

‘Tribunal’ within the meaning of Article 227 and/or 136 of the Constitution

of India. Also, in a given case, this Court may not exercise its powers

under Article 136 of the Constitution of India, in view of the remedy which

may be available to the aggrieved party before the concerned High Court

under Article 227 of the Constitution of India, as it is appropriate that

aggrieved party approaches the concerned High Court by way of writ

petition under Article 227 of the Constitution of India.

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12.1 At this stage, another Constitution Bench decision of this Court in

the case of L. Chandra Kumar (supra) is required to be referred to.

While dealing with the jurisdiction of the High Courts under Articles

226/227 of the Constitution of India in respect of powers of judicial

review, it is observed and held in para 90 as under:

“90. We may first address the issue of exclusion of the power of judicial

review of the High Courts. We have already held that in respect of the

power of judicial review, the jurisdiction of the High Courts under Articles

226/227 cannot wholly be excluded. It has been contended before us that

the Tribunals should not be allowed to adjudicate upon matters where the

vires of legislations is questioned, and that they should restrict themselves

to handling matters where constitutional issues are not raised. We cannot

bring ourselves to agree to this proposition as that may result in splitting

up proceedings and may cause avoidable delay. If such a view were to be

adopted, it would be open for litigants to raise constitutional issues, many

of which may be quite frivolous, to directly approach the High Courts and

thus subvert the jurisdiction of the Tribunals. Moreover, even in these

special branches of law, some areas do involve the consideration of

constitutional questions on a regular basis; for instance, in service law

matters, a large majority of cases involve an interpretation of Articles 14,

15 and 16 of the Constitution. To hold that the Tribunals have no power to

handle matters involving constitutional issues would not serve the purpose

for which they were constituted. On the other hand, to hold that all such

decisions will be subject to the jurisdiction of the High Courts under

Articles 226/227 of the Constitution before a Division Bench of the High

Court within whose territorial jurisdiction the Tribunal concerned falls will

serve two purposes. While saving the power of judicial review of legislative

action vested in the High Courts under Articles 226/227 of the Constitution,

it will ensure that frivolous claims are filtered out through the process of

adjudication in the Tribunal. The High Court will also have the benefit of a

reasoned decision on merits which will be of use to it in finally deciding the

matter.”

That thereafter, it is observed and held that against the order

passed by the tribunal, the aggrieved party may approach the concerned

High Court under Article 227 of the Constitution of India.

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12.2 We may also refer to the decision of this Court in State of

Karnataka vs. Vishwabarathi House Building Co-operative Society

and Ors., (2003) 2 SCC 412. In the said case, the contest before this

Court was with regard to the Constitutional validity of the Consumer

Protection Act, 1986. The validity of the Act was challenged, inter-alia, on

the ground that the Parliament, was not empowered to establish a

hierarchy of Courts, which would operate parallelly with the Courts

established under the Constitution. Upholding the validity of the Act, this

Court observed that the very fact that a given party could always

approach the High Court under Article 227, or the Supreme Court, as the

case may be, against an order of a Commission constituted under the

Act, was itself an adequate safeguard. The observations of this Court, to

the effect that a party aggrieved by an order of a Commission constituted

under the Act, could approach a High Court, or this Court, have been

extracted as under:

“52. The very fact that in a given case a party under the said Act may

approach upto this Court and or may otherwise take recourse to the

remedy of judicial review, the interest of the parties must be held to have

been sufficient safeguard.

53. The provisions relating to power to approach appellate court by a party

aggrieved by a decision of the forums State Commissions as also the

power of High Court and thus Court under Article 226/227 of the

Constitution of India and Article 32 of this Court apart from Section 23 of

the Act provide for adequate safeguards. Furthermore, primarily the

jurisdiction of the forum/commissions is to grant damages. In the event, a

complainant feels that he will have a better and effective remedy in a civil

court as he may have to seek for an order of injunction, he indisputably

may file a suit in an appropriate civil court or may take recourse to some

other remedies as provided for in other statutes.”

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13. No so far as the remedy which may be available under Article 136

of the Constitution of India is concerned, it cannot be disputed that the

remedy by way of an appeal by special leave under Article 136 of the

Constitution of India may be too expensive and as observed and held by

this Court in the case of L. Chandra Kumar (supra), the said remedy can

be said to be inaccessible for it to be real and effective. Therefore, when

the remedy under Article 227 of the Constitution of India before the

concerned High Court is provided, in that case, it would be in furtherance

of the right of access to justice of the aggrieved party, may be a

complainant, to approach the concerned High Court at a lower cost,

rather than a Special Leave to Appeal under Article 136 of the

Constitution.

14. In view of the above, in the present case, the High Court has not

committed any error in entertaining the writ petition under Article 227 of

the Constitution of India against the order passed by the National

Commission which has been passed in an appeal under Section 58(1)(a)

(iii) of the 2019 Act. We are in complete agreement with the view taken

by the High Court. However, at the same time, it goes without saying

that while exercising the powers under Article 227 of the Constitution of

India, the High Court subjects itself to the rigour of Article 227 of the

Constitution and the High Court has to exercise the jurisdiction under

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Article 227 within the parameters within which such jurisdiction is

required to be exercised.

14.1 The scope and ambit of jurisdiction of Article 227 of the

Constitution has been explained by this Court in the case of Estralla

Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97, which has been

consistently followed by this Court (see the recent decision of this Court

in the case of Garment Craft v. Prakash Chand Goel, 2022 SCC

Online SC 29). Therefore, while exercising the powers under Article 227

of the Constitution, the High Court has to act within the parameters to

exercise the powers under Article 227 of the Constitution. It goes without

saying that even while considering the grant of interim stay/relief in a writ

petition under Article 227 of the Constitution of India, the High Court has

to bear in mind the limited jurisdiction of superintendence under Article

227 of the Constitution. Therefore, while granting any interim stay/relief in

a writ petition under Article 227 of the Constitution against an order

passed by the National Commission, the same shall always be subject to

the rigour of the powers to be exercised under Article 227 of the

Constitution of India.

16. In view of the above discussion and for the reasons stated above

and subject to the observations made hereinabove, it cannot be said that

a writ petition under Article 227 of the Constitution of India before the

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concerned High Court against the order passed by the National

Commission in an appeal under Section 58(1)(a)(iii) of the 2019 Act was

not maintainable. We are in complete agreement with the view taken by

the High Court. As the matter on merits is yet to be considered by the

High Court, we do not express anything on merits in favour of either of

the parties. However, it is observed that while considering the question

of interim relief/stay, the High Court will bear in mind the observations

made hereinabove.

17. The present appeal is accordingly dismissed. However, in the facts

and circumstances of the case, there shall be no order as to costs.

……………………………….J.

[M.R. SHAH]

NEW DELHI; …………………………………J.

MAY 13, 2022. [B.V. NAGARATHNA]

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