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WRIT PETITION IS MAINTAINABLE AGAINST THE ORDER OF NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

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WRIT PETITION IS MAINTAINABLE AGAINST THE ORDER OF NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
Mr. M. GOVINDARAJAN By: Mr. M. GOVINDARAJAN
May 20, 2022
All Articles by: Mr. M. GOVINDARAJAN       View Profile
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Writ jurisdiction

A person whose right is infringed by an arbitrary administrative action may approach the Court for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of fundamental rights of an Individual.   There are five types of Writs which are Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition and all these writs are an effective method of enforcing the rights of the people and to compel the authorities to fulfill the duties which are bound to perform under the law.

Under Article 226, a writ petition can be filed before any High Court within whose jurisdiction the cause of action arises, either wholly or in part. It is immaterial if the authority against whom the writ petition is filed is within the territory or not.

The writ jurisdiction can be invoked when there is no appeal provision in any Act. 

Writ against orders of National Consumer Disputes Redressal Commission

Under the provisions of Consumer Protection Act, 2019 a consumer may approach any consumer forum based on the amount involved, to get redressal.  The National Consumer Disputes Redressal Commission (‘National Commission’ for short) is having power to entertain complaint if the consideration in the supply of goods or provision of services exceeds Rs.10 crores.  The National Commission is also having appellate jurisdiction to entertain appeal against the order of State Commission or Central Authority.  There is no provision for filing appeal against the order passed on the appeal filed against the order of State Commission or Central Authority.  In such a case whether the aggrieved person may file a writ petition before the High Court?  The supreme Court gave answer to this question in IBRAT FAIZAN VERSUS OMAXE BUILDHOME PRIVATE LIMITED [2022 (5) TMI 793 - SUPREME COURT]

In the above case the appellant in this case booked a flat in the project floated by the respondent.  The appellant paid the entire amount of consideration but the respondent did not hand over the flat within the time stipulated in the agreement.  Therefore the appellant filed a consumer complaint before State Commission on 10.08.2013 alleging deficiency of service on the part of the respondent.  The State Commission allowed the complaint filed by the appellant vide their order dated 16.10.2020.  The State Commission directed the respondent to hand over the flat to the possession of the appellant subject to their meeting the requirements.  The State Commission further directed the respondent to pay compensation for the deficiency of service of the respondent in the form of 9% simple interest till the date of delivery of the flat in possession of the appellant.

The appellant filed an execution and contempt petition against the respondent since he did not comply with the order of the State Commission.  Vide their order dated 12.03.2021 the State Commission directed the respondent to produce the details of bank accounts or properties for the purpose of attaching the same and to implement the order passed by the State Commission.

The respondent filed an appeal before the National Consumer Disputes Redressal Commission (‘National Commission’ for short).  On 30.03.2021 the National Commission stayed the order of State Commission subject to the deposit of the cost of entire flat along with 9% interest on the amount paid till date in the Registry of the State Commission.

The respondent, being aggrieved against the order of National Commission filed a writ petition before the High Court challenging the order passed by the National Commission.  Before the High Court the respondent contended that the National Commission ought not to have directed the respondent, the builder, to deposit the entire cost of the apartment along with the compensation awarded by the State Commission.  The High Court stayed the order of National Commission, vide their order dated 25.05.2021.  The said stay order was issued subject to the condition that the respondent is to deposit with the State Commission 50% of the amount directed to be deposited by way of interest towards compensation, within four weeks from the date of stay order issued by the High Court.

In the meantime the National Commission passed the final order confirming the order passed by the State Commission, vide their order dated 09.12.2021.  The respondent also filed a writ petition before the High Court challenging the final order passed by the National Commission.  The High Court, in this petition, also granted interim stay vide their order dated 22.12.2021.  Against this order the appellant filed the present appeal before the Supreme Court.  The Supreme Court, vide their order dated 21.03.2022 directed the High Court to decide the jurisdictional issue under Article 227 of the Constitution against the order passed by the National Commission on or before 18.04.2022 and intimate the outcome to the Supreme Court.  The High Court, vide their order dated 31.03.2022 held that the writ petition before the High Court against the order of National Commission is maintainable.  This order also has been challenged by the appellant before the Supreme Court.

The appellant submitted the following before the Supreme Court-

  • Against the order of National Commission writ petition before High Court under Article 227 of the Constitution is not maintainable.
  • Only appeal is maintainable before the Supreme Court against the order of National Commission as per the provisions of Consumer Protection Act.
  • Without exhausting the appellate remedy the High Court ought not to have entertained the writ petition under Article 227 of the Constitution.
  • The High Court ought not to have stayed the order passed by the National Commission in the limited jurisdiction available under Article 227 of the Constitution.

The respondent submitted the following before the Supreme Court-

  • The provisions of Consumer Protection Act, 2019 does not have appeal provisions against the order of National Commission and therefore writ petition is maintainable before the High Court against the order of National Commission.
  • For this purpose the respondent relied on the following judgments-

The Supreme Court heard the submissions put forth by the parties to the present appeal.  The Supreme Court considered the question for its decision as to whether against the order passed by the National Commission in an appeal under Section 58(1)(a)(iii) of the Consumer Protection Act, 2019 (‘Act’ for short), a writ petition before the High Court under the Article 227 of Constitution of India would be maintainable.

The Supreme Court analyzed the provisions of section 58 and 67 of the Act.  Section 58(1)(a)  of the Act provides that the National Commission shall have jurisdiction to entertain-

  1. complaints where the value of the goods or services paid as consideration exceeds rupees ten crore;
  2. complaints against unfair contracts, where the value of goods or services paid as consideration exceeds rupees ten crore;
  3. appeals against the order of State Commission;
  4. appeals against the order of Central Authority.

Section 67 of the Act provides that 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 30 days from the date of the order.

The Supreme Court observed that an appeal to the Supreme Court against the order passed by the National Commission would be maintainable only in case the order is passed by the National Commission under section 58(1)(a)(i) or (ii) of the Act.  No appeal can be filed before the Supreme Court against the order made by the National Commission under section 58(1)(a)(iii) or (iv).  Therefore the remedy available to the aggrieved person against the order of National Commission would be to approach concerned High Court having jurisdiction under Article 227 of the Constitution of India.

The Supreme Court held 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 appeal under Section 58(1)(a)(iii) of the Act.  The Supreme Court further held that the High Court while exercising power under Article 227 of the Constitution of India, the High Court itself subjects to the rigor of Article 227 of the Constitution.  The High Court has to exercise its jurisdiction within the parameters within which such jurisdiction is to be exercised.  While granting interim stay/relief in a writ petition under Article 227 of the Constitution of India the same shall always be subject to the rigor of the powers to be exercised under Article 227 of the Constitution of India.  The Supreme Court, therefore, dismissed the appeal. 

 

By: Mr. M. GOVINDARAJAN - May 20, 2022

 

 

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