The Hon’ble High Court of Delhi comprising a bench of Hon’ble Mr. Justice C. Hari Shankar was posed a question in the matter of Lucina Land Development Ltd. v. Union of India & Ors., Civil Misc. (Main) Petition No. 664 of 2018 whether the order of the National Consumer Disputes Redressal Commission (National Commission) can be challenged by a person before the High Court invoking its extra-ordinary supervisory jurisdiction in view of the fact that there is an alternate remedy available of a Civil Appeal under Section 23 of the Consumer Protection Act, 1986 to the Hon’ble Supreme Court.
In the instant matter, 51 Allottees / flat buyers of a particular project had filed a class action consumer complaint under section 21(a)(i) read with 12(1)(c) and 22(1) of the Consumer Protection Act, 1986 before the National Commission alleging that the builder / Petitioner was guilty of deficiency in service and involved in unfair trade practices.
The National Commission had allowed the application of public notice under Section 12(1)(c) of the Consumer Protection Act, 1986 read with Order 1 Rule 8 of the Code of Civil Procedure. Accordingly, the Petitioner had challenged the above order of the National Commission before the Delhi High Court on the main ground that there is no “sameness of interests” amongst the 51 Allottees who had filed the Complaint, the National Commission has wrongly directed for public notice under Section 12(1)(c) r/w Order 1 Rule 8 since the requisite criteria for a class action was not fulfilled and also the National Commission was having no pecuniary jurisdiction to entertain the instant Complaint.
While the High Court had stayed the operation of the Impugned order of the National Commission, during the course of arguments, Mr. Piyush Singh, Adv. appeared on behalf of the Allottees and raised several defences, why the instant Civil Misc. (Main) Petition invoking the extra-ordinary supervisory jurisdiction under Article 227 of the Constitution of India was not maintainable amongst other various points.
The High Court while rejecting the argument for the maintainability of the Petition before itself observed on the issue of maintainability of the Petition under Section 227 of the Constitution to the High Court impugning the order of the National Commission as follows:
The advocate appearing for the Respondent placed reliance on the judgment of the Hon’ble Supreme Court in the case of Cicily Kallarackal v. Vehicle Factory, (2012) 8 SCC 524 whereby the Hon’ble Supreme Court while deciding an SLP preferred against the order of the High Court under Article 226 against the order of National Commission observed as follows:
“9. While declining to interfere in the present Special Leave Petition preferred against the order passed by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, we hereby make it clear that the order of the Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27 A(1)(c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission.” (emphasis supplied)
Therefore, the Respondents submitted that as per the abovementioned judgment of Cicily Kallarackal, the High Courts do not have jurisdiction to entertain a Writ Petition under Article 226 of the Constitution of India against the orders passed by the National Commission since there is a statutory appeal pending under Section 27(A)(1)(c) to the Hon’ble Supreme Court. As such, he stated that even in the instant case, the Delhi High Court did not have the requisite jurisdiction to hear the instant case as it was against the principle laid down in the abovementioned judgment. The Respondents further submitted that it is a settled position of law that in cases where there is an alternate remedy available, the Petition under Article 227 cannot be maintained.
Contrary to the submissions of the Respondents on the issue of maintainability of the Petition under Article 227, Ms. Kanika Agnihotri, Advocate appearing on behalf of the Petitioners submitted that the judgment of Cicily Kallarackal was in the context of a Writ Petition under Article 226 of the Constitution and the instant Petition was filed under Article 227 of the Constitution. Further, she placed reliance on the judgment of the Hon’ble Supreme Court in the case of State of Karnataka v. Vishwabharathi House Building Coop Society, (2003) 2 SCC 412, wherein it was held by the Hon’ble Supreme Court while checking the constitutional validity of the Consumer Protection Act, 1986, the Supreme Court had held that the power of the Judicial review of the High Court, which is a basic feature of the Constitution of India could not have been taken away. The Petitioners placed their reliance upon the following relevant paras:
“51. It may be true that there does not exist any provision for transfer of case from one forum to the other or there does not exist any provision to grant injunction. Absence of such provisions in our opinion would not render the statute ultra vires the Constitution or unworkable.
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 interests of the parties must be held to have been sufficiently safeguarded.
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 this 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.”
Placing reliance of the abovementioned paras, the Petitioners stated that the “the right to file a petition under Article 227 of the Constitution of India is independently available, apart from the right conferred under Section 23 of the 1986 Act…” and “the right available under Section 23 of the 1986 Act cannot derogate from the right to invoke the jurisdiction of this Court under Article 227 of the Constitution of India”.
The Delhi High Court while agreeing with the submissions of the Petitioners, observed that the judgment of Cicily Kallarackal (supra) is with reference to Article 226 of the Constitution of India. The High Court observed that although the right to approach the writ court under Articles 226 and 227 of the Constitution of India are interlined and cognate, there is a subtle difference between the two provisions whereby Article 226 is in the nature of a judicial review by issuance of prerogative writs such as habeas corpus, certiorari, mandamus, prohibition and quo warranto, whereas the jurisdiction under Article 227 is supervisory in nature. The High Court further observed that there is a fundamental jurisdprudential difference between judicial review jurisdiction and the supervisory jurisdiction. The High Court observed as follows:
“18. There is a fundamental jurisprudential difference between judicial review jurisdiction and supervisory jurisdiction. The nature of the power exercised by a court in each case is also essentially different. The exercise of powers under Article 227, in a sense, more constricted than the exercise of powers under Article 226, inasmuch as the scope of examination of the merits of the decision under challenge is, under Article 226, more expansive than under Article 227. While exercising jurisdiction under Article 227, what the court is essentially concerned with is ensuring that the courts and tribunals subject to its supervisory jurisdiction exercise their powers appropriately.\
19. The Article 227 court does not sit in appeal over the decisions of the court or tribunal below. It is not expected to scrutinize the merits of the said decision with a view to correct the said decision on merits. If, however, the decision is one which involves erroneous exercise of jurisdiction or assumption of power where no power exists, then the court, under Article 227, would be justified in interfering. Equally, if the decision demonstrates discharge, of the Court or Tribunal below, of its functions otherwise than the manner in which the law requires the Court of Tribunal to so discharge, the decision can be corrected in exercise of the supervisory jurisdiction vested in the High Court. Else, the position in law is trite, as enunciated in Estralla Rubber v Dass Estate, Garment Craft v. Prakash Chand Goel and Puri Investment v. Young India that a writ court, under Article 227, is not even empowered to correct errors in the orders passed by the courts below. The distinction is as explicit as it is nuanced.
20. Vishwabharathi House Building Coop. Society refers to ―Articles 226/227 of the Constitution of India. The opening sentence in para 53 of the report in the said case holds that adequate safeguards, against orders passed by the learned NCDRC, are available to an aggrieved party by way of writ to a High Court under Article 226/227 or to the Supreme Court of India under Article 32 of the India or by way of an appeal under Section 23 of the 1986 Act. It does not, however, provide any further guidance as to the circumstances in which these remedies would, individually, be available against the decision of the learned NCDRC. Even so, the view canvassed by Mr Piyush Singh, if accepted, would amount to holding that, where the appellate remedy under Section 23 of the 1986 Act is available, the remedy under Article 227 of the Constitution of India stands irrevocably foreclosed, which would militate against the tenor of the view expressed in Vishwabharathi House Building Coop. Society.” (emphasis supplied)
Further, the High Court discussed the judgment of Virudhanagar Hindu Nadaragal Dharma Paribalana Sabai v. Tuticorin Educational Society, (2019) 9 SCC 538, wherein the Hon’ble Supreme Court had distinguished “between the situation where the order under challenge is passed by a civil court and a remedy of appeal lies to another civil court, vis a vis, a situation in which the order under challenge is not passed by a civil court, but by a quasi-judicial authority or tribunal or where the remedy of appeal does not lie to a civil court.” And accordingly, the High Court observed that:
“24. …therefore, in a case where the remedy of appeal is to the Supreme Court, as under Section 23 of the 1986 Act, as there can be no question of the party availing such remedy before resorting to a writ remedy available under the Constitution to the High Court. A party cannot be directed to exhaust the alternate remedy available before the Supreme Court before approaching the High Courts under Article 226. There can be no appeal from Caesar to Mark Antony.” (Emphasis and underline supplied)
Therefore, the High Court observed that the Petitioners had the right to approach the High Court against the order of the National Commission under Article 227 of the Constitution of India and the High Court observed as follows:
“26. For all these reasons, I am of the opinion that the right of the petitioners, to approach this Court under Article 227 of the Constitution of India cannot be affected by the remedy of appeal to the Supreme Court available under Section 23 of the Consumer Protection Act.
27. Having said that, it is also clear that any party which seeks to invoke the jurisdiction of the High Court under Article 227 subjects itself to the rigours of the provision and to the restrictions inbuilt in it. The High Court, under Article 227, cannot examine the matter with the same latitude as would be available to a Court which exercises appellate jurisdiction.”
The Delhi High Court further observed on facts of the matter that in view of the judgment of the Hon’ble Supreme Court in the case of Brigade Enterprises Ltd. v. Anil Kumar Virmani, 2021 SCC OnLine SC 1283, the National Commission had wrongly passed the order for public notice under Section 12(1)(c) r/w Order 1 Rule 8 since there was no sameness of interest and in the absence of sameness of interest amongst the Respondents / Complainants / Allottees, the pecuniary value of the matter would not be more than Rs. 1 Crore and as such the National Commission did not have jurisdiction to entertain this matter.
On the merits of the matter, the High Court after discussion the judgment of the Hon’ble Supreme Court in the case of Brigade Enterprises (supra) along with the pleadings of the matter observed as follows:
“43. In the present case, while there is an omnibus recital, in para 4 of the complaint, that the facts relating to the allottees of the project are the same and that common issues disputes and controversies are involved, with the allottees having common interest and having suffered identical deficiency of service, the pleadings that follow thereafter belie this assertion. Para 16 of the complaint sets out, in a bulleted fashion, various alleged complaints relating to the allocation of units to the allottees in the project. The complaint does not, however, identify these various perceived deficiencies in service vis-a- vis the allottees aggrieved thereby, by identifying the deficiencies in service by which the individual allottees were aggrieved. Nor is there any assertion, in the complaint, that each and all of the grievances enumerated in para 16 of the complaint applied to every allottee units in the complex, whose cause the complainant chose to espouse. Even in respect of the 51 complainants before the learned NCDRC, the complaint does not set out, with clarity, their individual grievances, out of the several grievances enumerated in para 16 of the complaint. Rather, the use of the words ―“many complainants”, “some complainants”, and the like, which figure in para 16 of the Complaint, indicate, prima facie, that the grievances of all allottees were not identical, though, in the ultimate eventuate, their common aim might have been to secure allotment to them, by the petitioners, of serviceable flats.
44. Such a common ultimate aim cannot, however, connote “sameness of interest” within the meaning of Section 12(1)(c), or Section 2(1)(b)(iv), of the 1986 Act. The law enunciated in Brigade Enterprises does not permit filing of a class action complaint under Section 12(1)(c) of the 1986 Act, in such a fashion. The matter is not merely one of the reliefs sought in the complaint. The 1986 Act offers protection to consumers against deficiencies in service or perpetration of unfair trade practices. The relief that follows is merely a sequitur. The sameness of interest has to be with respect to the grievances of the complainants, and not with respect to the reliefs sought. Pared down to brass tacks, hypothetically, if one allottee is aggrieved by water leakage in the flat allotted to him, another by not allotment of adequate parking space, a third by delayed allotment and a fourth by the flat not being of the category assured to him, they cannot maintain a class action against the builder, by invoking Section 12(1)(c), merely on the ground that the ultimate relief sought by all of them is allotment of flats as originally contracted. Once, as in the present case (vide para 16 of the Complaint), the complainants enumerated several individual items of grievance, the Complaint would either have to assert that each grievance applied to each allottee whose cause they were seeking to espouse, or to identify the allottees, grievance-wise. Else, the very requirement of “sameness of interest”, in the case of a class action proceeding under the Consumer Protection Act, would be reduced to a redundancy, as, in every case, the consumers could make an omnibus prayer that the units should be allotted to them in good condition and, on that basis, plead sameness of interest. This, in my view, militates against the law laid down in Brigade Enterprises. To reiterate what is required is that it must be apparent and forthcoming, from the complaint, that the consumers whose cause the complaint seeks to espouse have sameness of interest, to the extent that the deficiencies in the service provided by the service provider, qua each and all of the said complainants, is the same. That requirement, in my considered opinion, is wanting in the complaint filed by the respondents in the present case.
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46. The learned NCDRC has also noted that the complainants had, “same interest in the outcome of the complaint”. Such an approach in my considered and respectful opinion, cannot be accepted, in view of the law laid down in Brigade Enterprises. What is required is not sameness of interest in the outcome of the complaint, but sameness of interest with respect to the grievances of the complainants and the deficiencies in service that the complaints claimed to have suffered at the instance of the opposite party. It is only then, that the Consumer Protection Forum could assess the correctness of the allegation of deficiency of service on the part of the opposite party vis-a-vis the complainants. Unless the consumers who have sameness of interest in respect of their grievances vis-a-vis the opposite party were immediately identifiable from the complaint, the complaint cannot be maintained as a class action covering the interest of all such consumers.”
Accordingly, in view of the above observations, the Hon’ble High Court allowed the Petition and set aside the order of the National Commission.
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Disclaimer – The author is an advocate appearing in the instant batch matters before the Hon’ble High Court on a similar question of law and similar facts on behalf of a builder / developer.
