Constitution of India – Art.32 – Directions sought in respect of a real estate project u/Art.32 – Held: The reliefs sought by the petitioner would involve the Court in an adjudicative process in determining whether (i) all the agreements should be cancelled; (ii) whether money which is paid by the home buyers should be refunded; or in the alternative (iii) whether judicial directions are necessary to ensure that the project is constructed and the premises are handed over within a reasonable time – The writ petition u/Art.
32 has been filed by a singular home buyer without seeking to represent the entire class of home buyers – The petition proceeds on the implicit assumption that the interest of all the buyers are identical – There is no basis to make such an assumption – All buyers may not seek a cancellation and refund of consideration – Apart from this aspect, the petitioner seeks other reliefs in aid of the primary relief, including the constitution of a Committee presided over by a former Judge of the Supreme Court for the purpose of handling the projects of the developer where moneys have been taken from home buyers – There are specific statutory provisions holding the field, including among them: (i) The Consumer Protection Act 1986 and its successor legislation; (ii) The Real Estate (Regulation and Development) Act 2016; and (iii) The Insolvency and Bankruptcy Code 2016 – Insofar as the remedies of a criminal investigation are concerned, adequate remedies are available in terms of the Code of Criminal Procedure 1973 – The Court has no reason to doubt the genuineness of the grievance which has been espoused by the petitioner – However, the issue is whether his recourse to Art. 32 is the correct remedy when alternative modalities are available and particularly since the engagement of the Court in a petition of this nature would involve a supervision which does not lie within the province of judicial review – In view of the statutory framework, both in terms of civil and criminal law and procedure, entertaining a petition u/Art. 32 would be inappropriate – Hence, petition u/Art.32 declined.
Disposing of the petition, the Court
HELD: 1. It would be inappropriate to entertain a petition under Article 32 for more than one reason. There are specific statutory provisions holding the field, including among them: (i) The Consumer Protection Act 1986 and its successor legislation;
(ii) The Real Estate (Regulation and Development) Act 2016; and (iii) The Insolvency and Bankruptcy Code 2016. [Para 6][531-F-G]
2. Each of these statutory enactments has been made by Parliament with a specific purpose in view. The 1986 Act as well as the subsequent legislation contain provisions for representative consumer complaints. One or more home buyers can consequently seek relief to represent a common grievance for a whole class of purchasers of real estate. The RERA similarly contains specific provisions and remedies for dealing with the grievance of purchasers of real estate. The provisions of the IBC have specifically taken note of the difficulties which are faced by home buyers by providing for remedies within the fold of the statute. [Para 7][532-A-C]
3. Entertaining a petition of this nature will involve the Court in virtually carrying out a day to day supervision of a building project. Appointing a Committee presided over by a former Judge of this Court would not resolve the problem because the Court will have nonetheless to supervise the Committee for the reliefs sought in the petition under Article 32. Insofar as the remedies of a criminal investigation are concerned, there is reason for this Court not to entertain a petition directly under Article 32 in the present set of facts. Adequate remedies are available in terms of the Code of Criminal Procedure 1973. The statutory procedures which are enunciated have to be invoked. Adequate provisions have been made in the statute to deal with the filing of a complaint and for investigation in accordance with law. Judicial intervention is provided at appropriate stages by competent courts in that regard. In Devendra Dwivedi v. Union of India and Ors., a threeJudge Bench of this Court held that, determining “whether recourse to the jurisdiction under Article 32 be entertained in a particular case is a matter for the calibrated exercise of judicial discretion.” It was further held that this remedy cannot be used as a ruse to flood this Court with petitions that must be filed before the competent authorities set up pursuant to the appropriate statutory framework. In view of the statutory framework, both in terms of civil and criminal law and procedure, this Court is of the view that entertaining a petition under Article
32 would be inappropriate. The Court has no reason to doubt the genuineness of the grievance which has been espoused by the petitioner. However, the issue is whether his recourse to Article
32 is the correct remedy when alternative modalities are available and particularly since the engagement of the Court in a petition of this nature would involve a supervision which does not lie within the province of judicial review. Real estate projects across the country may be facing difficulties. The intervention of the Court cannot be confined to one or a few selected projects. Judicial time is a precious resource which needs to be zealously guarded. This Court has to always be mindful of the opportunity cost involved in exercising our discretion to admit a petition and to intervene, in terms of diversion of time and resources away from other matters where intervention would be more apposite and necessary. [Para 8][532-C-H; 533-A-B]
Shelly Lal v Union of India, Writ Petition (Civil) No 1390 of 2020 – relied on.
Pawan Kumar Kushwaha and Ors. v Lucknow
Development Authority and Ors., Writ Petition (Civil) No 1001 of 2020; Devendra Dwivedi v. Union of India and Ors., Writ Petition (Criminal) 272 of 2020 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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