Full Text
HIGH COURT OF DELHI
CM(M) 1196/2021 & CM APPL.46693/2021, CM
OMAXE BUILDHOME PVT LTD ..... Petitioner
Through: Mr.A.K. Singla, Sr. Adv. with Mr. Karanjot Singh Mainee, Ms.Shreya
Gupta, Mr.Rahul, Mr.Akshit Sachdeva and Mr.B. Mund, Advs.
Through: Mr. S.K. Pal, Adv.
JUDGMENT
24.08.2022
1. This petition under Article 227 of the Constitution of India emanates from Complaint No. 468/2013, preferred by the respondent against the petitioner.
2. The petitioner was engaged in establishing and promoting group housing projects, in which apartments were sub-leased out to members of the public against a consideration. The grievance of the respondent, as ventilated in the complaint, was that there was unreasonable delay in offering possession, to the respondent, of apartment no.
LINCON C-205 in the “Omaxe Grandwoods” Project of the respondent, in Noida. Additionally, the respondent also claimed to be aggrieved by 2022:DHC:3283 the demands of ₹ 95,550/- towards fire fighting charges (FFC) and electrical fittings charges (EEC) and ₹ 2,00,000/- towards parking charges, demanded by the petitioner. The complaint also alleged that the petitioner had charged excess towards super-area charges. On the basis of these assertions, the respondent prayed in the complaint, inter alia, for directions, to the petitioner to (i) withdraw the demand of ₹ 95,550/- towards EEC and FFC and ₹ 2,00,000/- towards car parking charges, (ii) pay penalty/compensation to the respondent @ ₹ 47,000/per month for delay in handing over possession of the flat allotted to the respondent, for which the respondent treated the due date for handing over the flat as 13th April 2010, and (iii) refund, to the respondent, the difference in super area charges allegedly recovered in excess by the petitioner.
3. The aforesaid Complaint 468/2013 was allowed by the learned State Consumer Disputes Redressal Commission (the learned SCDRC) vide judgment dated 16th October 2020. First Appeal NO. 250/2021 preferred by the petitioner thereagainst was dismissed by the learned National Consumer Disputes Redressal Commission (the learned NCDRC), vide judgment dated 9th December 2021. Both these decisions have been assailed before this Court, under Article 227 of the Constitution of India, by the petitioner M/s Omaxe Buildhome Pvt. Ltd.
4. An initial issue had arisen, in these proceedings, as to whether a petition under Article 227 of the Constitution of India would be maintainable against the impugned order passed by the learned NCDRC. This Court had held that the petition would be maintainable, but that the Court would, in adjudicating the matter, be constrained by the limited peripheries of Article 227 of the Constitution of India. The said decisions stand upheld by the Supreme Court vide judgment dated 13th May 2022 in Ibrat Faizan v. Omaxe Buildhome Pvt. Ltd.1. While doing so, the Supreme Court inserted the following note of caution (in paras 27 to 29 of the report): “27. 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 Article 227 within the parameters within which such jurisdiction is required to be exercised.
28. 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.,[2] 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[3] ). 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
2022 SCC OnLine SC 29 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.
29. 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 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.”
5. In adjudicating the present petition, therefore, this court can peregrinate only within the limited confines of Article 227 of the Constitution of India, as underscored by the Supreme Court in its decision in Ibrat Faizan[1].
6. There is no gainsaying that, in exercise of jurisdiction under Article 227 of the Constitution of India, this Court does not sit in appeal or even in judicial review over findings of fact entered by the authorities below. In the following passage from Sadhana Lodh v National Insurance Co. Ltd.4, the Supreme Court has distilled the scope of jurisdiction vested in High Courts by Article 227:
7. The following passages from Estralla Rubber[2] and Garment Craft[3], to which the Supreme Court also refers in Ibrat Faizan[1], underscore much the same position: Estralla Rubber[2] “7. This Court in Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand[5] in AIR para 12 has stated that the power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors. Reference also has been made in this regard to the case Waryam Singh v. Amarnath[6]. This Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarte[7] has observed that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself into a court of appeal when the legislature has not conferred a right of appeal. Judged by these pronounced principles, the High Court clearly exceeded its jurisdiction under Article 227 in passing the impugned order.” Garment Craft[3] AIR 1972 SC 1598 AIR 1954 SC 215 AIR 1975 SC 1297 “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft[8] ] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar[9] ] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.[2] has observed: (SCC pp. 101-102, para 6) “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.””
8. In appreciating the contentions advanced by Mr. A.K. Singla, learned Senior Counsel for the petitioner and Mr. S.K. Pal, learned Counsel for the respondent, therefore, this Court has kept in mind the narrow confines of its jurisdiction under Article 227 of the Constitution of India.
9. Having done so, and even within the narrow confines of such jurisdiction, in the opinion of this Court, the impugned orders passed by the learned SCDRC and the learned NCDRC clearly make out a case for interference, essentially for the reason that the orders do not in the respectful opinion of this Court, address the two main issues of which they were in seisin.
10. As already highlighted hereinabove, the respondent had, in its complaint before the learned SCDRC, raised only two issues. The first was the justifiability of the EEC and FFC, and the parking charges and interest thereon that the petitioner sought to recover from the respondent. The second was the alleged delay, on the part of the petitioner, in handing over possession, to the respondent, of the flat allotted to him. Neither of these issues, unfortunately, has been addressed, with the requisite degree of circumspection either by the learned SCDRC or by the learned NCDRC.
11. In para 13 of its judgment dated 16th October 2020, the learned SCDRC identifies the issue, relating to the alleged delay in handing over possession, as urged before it and as arising for consideration, thus: “13. Short question now remains for adjudication is whether relying on the terms of agreement between the complainants and the OPs there has been delay in handing over possession of the plot booked by the complainants. If so whether the delay done is attributable to the OPs or there were factors beyond their control accounting for the delay. If the delay was attributable to the OPs, whether the complainants are entitled to the compensation as prayed for in the complaint and if so, the extent to which the order can be passed.”
12. Having thus identified the issue that arose for consideration, the learned SCDRC proceeds to hold thus, with respect to the said issue, in paras 14 and 15: “14. The fact that the complainant had booked a plot with the OPs is undisputed. Payment to the extent of requirement minus the disputed amount like service charges etc, has been made, is also not in dispute. Agreed period for handing over possession also stands over. But the possession has not been handed over. In that view of the matter the inevitable conclusion is that there was gross deficiency as defined in Section 2(1)(g) of the Act on the part of the OPs in its failure to deliver possession of the flat to the complainant in terms of the allotment letter. It is trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency of service, such deficiencies or omissions as per the law settled by their Lordships in the Apex Court in the matter of Lucknow Development Authority v. M.K. Gupta as reported in (1994) 1 SCC 243 tantamount to unfair trade practice as defined in Section 2(1)(r)(ii) of the Act as well.
15. Having arrived at the said conclusion we are of the considered opinion that this complaint deserves to be accepted. The core question for consideration now is as to how the complainants are to be compensated for the suffering caused to the complainant at the hands of the OPs for indulging in the unfair trade practice. The provisions of the Act enable a consumer to claim and empower the commission to redress any injustice done to a consumer. The Commission is entitled to award compensation for the injustice suffered by him.”
13. There is no other finding, in the judgment of the learned SCDRC, on the aspect of the alleged delay on the part of the petitioner in handing over possession of the flat allotted to the respondent. More significantly, there is no consideration of the defence that the petitioner adduced, to the said allegation by the respondent.
14. Insofar as the aspect of EEC and FFC and parking charges, are concerned, the learned SCDRC has noted the contentions of the respondent thus, in para 4 of its judgment: “4. Further the apartment duly approved by the competent authority under its byelaws cannot be considered without the electrical and fire fittings and space for car parking (Equivalent Car Space-ECS). The plan cannot be filed without the following three mandatory documents a. Fire NOC b. Certificate from the Director Electrical Safety. c. Provision of atleast one part for each apartment. Hence the demand of Rs. 95550/- for fire fighting and electrical fittings and Rs. 200.000 for car parking is liable to be rejected being illegal and an afterthought to cover up the delay penalty payable by the OP to the complainants. Infact, according to the complainant the Hon’ble Supreme Court in the matter of [Nahalchand Laloochand (P) Ltd. versus Panchali Co-operative Housing Society Ltd.10 ] is pleased to declare that the developer cannot charge separately for the parking from an apartment owner as is being sought to be done by the OP here.”
15. On this aspect, the only finding of the learned SCDRC is to be found in the following brief passage:
With respect, this finding, besides being somewhat ambiguous and vague (especially in view of the words “be not pressed for”), again does not address the case that the petitioner had chosen to set up, to answer the allegation levelled by the respondent.
16. Travelling to the decision of the learned NCDRC, the learned NCDRC has not returned any finding on the aspect of chargeability of parking charges or of EEC and FFC. All that it has done is to record, in para 18 of its judgment, the finding of the learned SCDRC in that regard thus:
17. On the aspect of delay in handing over possession of the flat, there is no discussion by the learned NCDRC. The matter has been dealt with thus, in paras 23 and 24 of the impugned judgment dated 9th December 2021: “23. We find that there is no doubt to the fact that there has been unreasonable delay in handing over the possession of the Unit to the Respondent/Complainant. The Agreement was signed on 12/04/2007 and according to clause 28(a) of the Agreement the Unit was to be constructed and delivered to the Respondent by 12/04/2010 or 12/10/2010. The Appellant/Builder delivered the possession of the Unit to the Respondent on 01.09.2021 only after the Order of Delhi High Court. The delay from the proposed date of possession and actual date of possession is more than 10 years which cannot be justified in any manner. Therefore, the prayer of the Respondent for compensation is fair and reasonable. It is also pertinent to note that the Respondent has paid substantial amount towards the total sale consideration of the Unit for which he has also availed Loan.
24. We are therefore of the considered view that it would be in order if the Appellant – Developer pays a delay compensation by way of simple interest @ 9% from the promised date of delivery till the date of possession.” (Emphasis supplied)
18. Clearly, the defence, of the petitioner, to the aspects of the implementation of the project, with which the respondent has claimed, in its complaint, to be aggrieved, have not been duly addressed either by the learned SCDRC or by the learned NCDRC.
19. I may note that this matter was heard, by me, over two days during which both sides addressed several submissions regarding the dates of handing over possession as well as the chargeability of EEC, FFC charges and parking charges. Mr. Singla, learned Senior Counsel for the petitioner drew my attention to various documents in which, according to him, it had been made clear that EEC and FFC was chargeable to, and payable by, the respondent as a pre-condition for handing over possession of the flat. On the aspect of handing over possession, Mr. Singla drew attention to letter dated 12th July 2012 which claims, expressly, to be a document handing over possession of the flat to the respondent.
20. Mr. Pal, learned Counsel for the respondent has traversed the said submissions. He has sought to contend that EEC and FFC were not chargeable, not being within the amounts which were initially agreed upon between the petitioner and the respondent. He has also contested the contention of Mr. Singla that the letter dated 12th July 2012 hands over possession of the flat to the respondent, relying, for the purpose, on the concept of “handing over possession” as envisaged in the agreement between the petitioner and the respondent which required handing over possession of a complete flat. Mr. Pal’s contention is that the flat as handed over to the respondent by the aforesaid letter dated 12th July 2012 could not be treated as a complete flat and that, therefore, the letter could not be treated as a letter handing over possession of the flat to the respondent.
21. These rival submissions have not been considered or examined by the learned SCDRC or by the learned NCDRC.
22. These are aspects which have necessarily to be addressed in the first instance by the learned Consumer Fora and cannot be originally adjudicated upon by this Court exercising jurisdiction under Article 227 of the Constitution of India, as the said jurisdiction is merely supervisory in nature. If I were to adjudicate these issues in the first instance, I would be clearly transgressing the jurisdiction vested in this Court by Article 227.
23. Where the rival stands of the parties before it are duly considered by the order under challenge, the applicability of Article 227 is, ordinarily, restricted to a great extent. The Court would not, then, re-examine the said issues, or enter into the correctness of the findings returned by the impugned order, as an appellate Court would be entitled to do. So long as the impugned order does not suffer from perversity, the brief of the Article 227 court is restricted to examining the manner of exercise of jurisdiction by the Court, or forum, which passed the impugned order, with a view to ascertain whether it calls for correction in the exercise of the superintending jurisdiction with which Article 227 clothes the Court.
24. A duty vests, however, with every judicial forum, to address the rival submissions advanced before it, howsoever briefly. Where, therefore, the rival stands of the parties are not addressed by the order under challenge, Article 227 applies, as the issue, then, relates to the manner in which jurisdiction stands exercised by the impugned order.
25. Ssangyong Engineering & Construction Ltd v. N.H.A.I.11, on the scope of interference with arbitral awards under Section 34 of the Arbitration and Conciliation Act, 1996, on the ground that submissions advanced before the Arbitral Tribunal were not considered, approves the following passage from Redfern and Hunter on Inernational Arbitration, as cited by the Court of Appeal in Singapore in CRW Joint Operation v. P.T. Perusahaan Gas Negara (Persero) TBK12: “The significance of the issues that were not dealt with has to be considered in relation to the award as a whole. For example, it is not difficult to envisage a situation in which the issues that were overlooked were of such importance that, if they had been dealt with, the whole balance of the award would have been altered and its effect would have been different.” Although, undoubtedly, the above test has been approved in an entirely different context, this Court is of the considered opinion that it would correctly represent the scope of interference with orders under challenge under Article 227 of the Constitution of India, as well, where the petitioner is aggrieved that its submissions have not been considered. If consideration of the submissions would have made no perceptible difference to the order under challenge, the Court would not interfere under Article 227. If, however, the submissions merited consideration, and the omission, on the part of the court or forum below to do so could conceivably influence the final decision arrived at, such omission constitutes an error in exercise of the jurisdiction vested in the court or forum below, which calls for supervisory correction.
26. As already noted, the rival submissions of the parties before them, on the two issues which arose for consideration in the present case, have not been addressed either by the learned SCDRC or by the learned NCDRC. That, in the respectful opinion of this Court, does call for interference under Article 227 of the Constitution of India.
27. Mr. Pal, learned Counsel for the respondent pleaded, at the conclusion that at the very least, the learned Consumer fora be directed to address the issues and take a decision thereon in a time bound manner. Learned Counsel for both parties have also very fairly agreed that the matter could be decided on the basis of the existing material on record.
28. In view thereof, the impugned orders dated 16th October 2020 and 9th December 2021 passed by the learned SCDRC and learned NCDRC are quashed and set aside. Consumer Complaint NO. 468/2013 is remanded to the learned SCDRC for consideration de novo. Both parties would appear before the learned SCDRC on 5th September 2022. The learned SCDRC is requested to consider the matter afresh and take a decision thereon as expeditiously as possible 2011 SGCA 33 preferably within a period of two months from today. As already noted, no fresh evidence or procedure of trial would be resorted to and the matter would be decided on the basis of the material on record after hearing learned Counsel for the parties, if necessary by calling upon them to file written arguments.
29. This petition stands allowed in the aforesaid terms with no orders as to costs.
C. HARI SHANKAR, J
AUGUST 24, 2022