Party Can't Exhaust Alternate Remedy In SC Before Approaching HC U/Art. 227; There Can Be No Appeal From 'Caesar' To 'Mark Antony': Delhi HC

The Delhi High Court has observed that a party cannot be directed to exhaust the alternate remedy available before the Supreme Court before approaching the High Courts under Article 226/227 of the Constitution.

Referring to Shakespeare's Julius Caesar, Justice C Hari Shankar said:

"There can be no appeal from Caesar to Mark Antony."

The Court was dealing with a matter concerning a complaint filed before the National Consumer Disputes Redressal Commission (NCDRC) against the petitioner Lucina Land Development Ltd. and others by 51 allotees of flats in a project titled Indiabulls Greens Panvel.

The complaint, preferred under sec. 21(a)(i)1 read with sec. 12(1)(c)2 and 22(1)3 of the Consumer Protection Act, 1986 alleged that the petitioners were guilty of deficiency in service and were involved in unfair trade practices within the meaning of sec. 2(1)(g)4 and 2(1)(r) of the 1986 Act. The respondents, who were allottees of units in the project, alleged, in the complaint filed by them before the NCDRC, that they were consumers of the petitioners within the meaning of sec. 2(1)(d)(ii)5 of the 1986 Act, as the units had been booked by the respondents for residence.

The complaint was accompanied by an application under sec. 2(1)(b)(iv)7 read with sec. 12(1)(c) of the 1986 Act, for permission to file a consolidated consumer complaint. Para 1 of the application stated that the complaint was being filed by the respondents on behalf of all allottees of the project, who were consumers having the same interest as a class action, as the dispute or controversy involved was common and the deficiency in service and unfair trade practices allegedly imputed to the petitioners were also common vis-à-vis all the allottees of flats in the project.

By order dated 16th May, 2018, the NCDRC proceeded to allow the respondents' application under sec. 12(1)(c) of the 1986 Act and, consequently, to direct publication of public notice regarding the complaint in the media, under Order I Rule 8 of the Code of Civil Procedure, 1908 (CPC).

Aggrieved by the aforesaid order dated 16th May, 2018, the petitioners had approached the High Court under Article 227 of the Constitution of India.

The Court observed that 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," it said.

The Court further observed that where the order under challenge is not passed by a civil court, no appeal against the said order is available under the CPC, or the appeal that is available is not to another civil court, the remedy under Article 227 does not appear to be foreclosed.

Thus, the Court observed that the right of the petitioners, to approach High Court under Article 227 could not be affected by the remedy of appeal to the Supreme Court available under sec. 23 of the Consumer Protection Act.

"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," it added.

The Court said that where the justifiability of the invocation by the respondents, of the jurisdiction of the NCDRC under sec. 21(a)(i) was itself in doubt, it was not open to the respondents to cite the availability of an alternate remedy to the petitioners under sec. 23 as a ground to non-suit them under Article 227 of the Constitution of India.

"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," the Court observed.

The Court said that paras 5 to 7 of the impugned order did not indicate that the NCDRC had approached the matter of maintainability of the complaint as a class action in the manner envisaged in the case of Brigade Enterprises.

The Court said:

"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, the Court set aside the impugned order of the NCDRC and also the complaint filed by the complainants before the NCDRC.

Advocates Kanika Agnihotri, Vaibhav Agnihotri, Yashodhara Gupta, Madhav Bhatia and Rohan Anand appeared for the petitioner.

Case Title: LUCINA LAND DEVELOPMENT LTD v. UNION OF INDIA & ORS

Citation: 2022 LiveLaw (Del) 399

Click Here To Read Order