Order Passed By NCDRC In Appeal Can Be Challenged In Writ Petition Filed Before A High Court: Supreme Court

The Supreme Court ruled that the order passed by NCDRC on appeal can be challenged in writ petition filed before a High Court.

Background 

The appellant booked a flat in the project floated by the respondent. According to the appellant, 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 on the grounds of deficiency of service and unfair trade practice. By order, the State Commission allowed the said complaint directing the respondent to handover possession of the flat booked by the appellant subject to their meeting the requirements. The State Commission also directed the respondent to pay to the complainant appellant 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. 

Arguments 

Advocate Sudeepta Kumar Pal, appearing on behalf of the appellant, submitted that against the order passed by the National Commission in First Appeal, a writ petition before the High Court under Article 227 of the Constitution of India would not be maintainable. 

He contended 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. 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. 

Advocate Karanjot Singh Mainee, appearing on behalf of the respondent, 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. 

Decision 

The division bench of Justice M.R. Shah and Justice B.V. Nagarathna stated that 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. 

The court said that it is 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 Article 227 within the parameters within which such jurisdiction is required to be exercised. 

The court further added that the scope and ambit of jurisdiction of Article 227 of the Constitution has been explained by the Court in the case of Estralla Rubber v. Dass Estate (P) Ltd., which has been consistently followed by the Court. 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.

The court held that 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. 

The court added that it cannot be said that a writ petition under Article 227 of the Constitution of India before the 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. 

Case title: Ibrat Faizan v/s Omaxe Buildhome Private Limited

Citation: Civil appeal no. 3072 of 2022

Click here to read the Order/Judgment

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