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
2
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
3
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
4
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
5
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
6
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
7
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:
8
“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
9
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
10
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
11
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.
12
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.
13
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.”
14
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
15
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
16
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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