Jurisdiction of High court to hear appeal against National Commission Order under Article 227
The Supreme Court in its order dated 13th May 2020 stated, “No further appeal to this Court is provided against the order passed by the National Commission in exercise of its powers conferred under Section 58(1)(a)(iii) or under Section 58(1)(a)(iv) of the 2019 Act. In that view of the matter, the remedy which may be available to the aggrieved party against the order passed by the National Commission in an appeal under Section 58(1) (a) (iii) or Section 58(1) (a) (iv) would be to approach the concerned High Court having jurisdiction under Article 227 of the Constitution of India.”
Dr Prem Lata, Legal Head VOICE
This is a well settled law that no writ petition lies against the order of the consumer commissions before the High Courts. Supreme Court in Cicily Kallarackal vs. Vehicle Factory judgment held, “to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India.”
But here is a case wherein the Supreme Court has confirmed that matter against the order of National Commission could be filed before the High Court under Article 227 of the constitution.
Facts of the Case
- Faizel, a home buyer booked a flat in the project floated by the respondent /builder. Despite the payment of sale consideration, the possession of the flat was not handed over and therefore he filed a consumer complaint before the Delhi State Consumer Redressal Forum on 10.08.2013 for deficiency of service and unfair trade practice. By order dated 16.10.2020, the State Commission directed the builder to handover possession of the flat, pay 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.
- Faizel filed an execution and contempt petition before the State Commission. Vide order dated 12.03.2021, the State Commission directed the decree holder /complainant to place on record the details of the bank accounts or the properties of the builder for attachment for not implementing the judgment and order dated 16.10.2020 passed by the State Commission.
- Builder went in appeal before the National Commission. Vide order dated 30.03.2021, National Commission granted stay of the State Commission’s order, subject to deposit of the entire cost of the flat along with 9% interest on the amount paid till date in the Registry of the State Commission or face the execution action by the State Commission.
- Feeling aggrieved and dissatisfied with the order dated 30.03.2021 passed by the National Commission, the respondent preferred writ petition before the High Court by way of writ CM (M) No. 374/2021 under Article 227 of the Constitution of India contending, inter alia, that the National Commission ought not to have directed the builder to deposit the entire cost of the apartment along with the compensation awarded by the State Commission.
This appeal before the SC is filed against the interim order passed by the High Court with a question whether High Court has the jurisdiction to entertain an appeal against the order of National Commission. We need to understand the law in this regard before understanding the stand taken by the Hon’ble Supreme Court.
As per Section 67 of the 2019 Act, the appeal remedy to the Supreme Court is available only with respect to orders passed by the NCDRC in exercise of its powers conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of Section 58. In other words, the appeal remedy to the Supreme Court under Article 136 in SLP is only with respect to the original orders passed by the NCDRC. No appeal can be filed against the order of National Commission which are passed in appeal.
But what can be the way to justice if Supreme Court cannot be contacted under this situation? Should it be considered the end with no further remedy?
This is a case before the Hon’ble Supreme court in the matter of Ibrat Faizan versus Omaxe Buildhome Private Limited wherein the question before it was to decide as to whether, against the order passed by the National Commission in an appeal under Section 58 (1) (a) (iii) of the 2019 Act, a writ petition before the concerned High Court under Article 227 of the Constitution of India would be maintainable?
SC held in its order dated 21 March 2022, “No further appeal to this Court is provided against the order passed by the National Commission in exercise of its powers conferred under Section 58(1)(a)(iii) or under Section 58(1)(a)(iv) of the 2019 Act. In that view of the matter, the remedy which may be available to the aggrieved party against the order passed by the National Commission in an appeal under Section 58(1)(a)(iii) or Section 58(1)(a) (iv) would be to approach the concerned High Court having jurisdiction under Article 227 of the Constitution of India.”
In this case, the Court has explained the difference between a writ filed under Art 226 and under Art 227 through various earlier decided cases and confirmed that in present situation writ is not admitted under Art 226. It is Art 227 under which consumer against the order of a tribunal can go to High Court when no other remedy is available to the consumer.
Article 226 and Article 227: The Difference between the Two
The case of Meshram and Ors. vs. Smt. Radhikabai and Anr, laid down the scope, power and differences between Article 226 and Article 227.
“The first and foremost difference between the two articles is that proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. The power of superintendence has been extended by this Article to tribunals as well.”
It further stated, “The power under Article 227 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. Power under Article 227 shall be exercised only in cases occasioning grave injustice or failure of justice.”
The Hon’ble Court in case of Surya Devi rai vs. Ram Chander Rai, further observed that there is lack of knowledge of the distinction between the understanding of Article 226 and 227 and hence it is a common custom with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncements.
After reeling on the catena of decisions of the apex court, the Hon’ble Supreme Court in Surya Devi Rai vs. Ram Chander Rai laid down the following differences:
- The writ of certiorari is an exercise of its original jurisdiction (Article 226) by the High Court. Exercise of supervisory jurisdiction (Article 227) is not an original jurisdiction and in this regard, it is akin to appellate revisional or corrective jurisdiction.
- The jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved but the power conferred under Article 227 viz the supervisory jurisdiction is capable of being exercised suo moto as well.
- In a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more (Art 226).
- In exercise of supervisory jurisdiction (Art 227), the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court.
- In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute the impugned decision with a decision of its own, as the inferior court or tribunal should have made.
- The court concluded that under Article 226 of the Constitution, writ is issued for correcting gross errors of jurisdiction. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction
Law established in this case:
- National commission is a tribunal, hence Article 227 applies and High court has the jurisdiction in supervisory capacity.
- No appeal on appeal case, only once appeal is permitted hence SC cannot be contacted under Special Leave Petition (SLP) for appeal over appellant order.