UPENDRA CHOUDHURY versus BULANDSHAHAR DEVELOPMENT AUTHORITY & ORS. on 11 February 2021

[2021] 1 S.C.R. 525

UPENDRA CHOUDHURY

v.

BULANDSHAHAR DEVELOPMENT AUTHORITY & ORS.

(Writ Petition (Civil) No. 150 of 2021)

FEBRUARY 11, 2021

[DR. DHANANJAYA Y CHANDRACHUD AND

M.R. SHAH, JJ.]

Constitution of India – Art.32 – Directions sought in respectof a real estate project u/Art.32 – Held: The reliefs sought by thepetitioner would involve the Court in an adjudicative process indetermining whether (i) all the agreements should be cancelled; (ii)whether money which is paid by the home buyers should berefunded; or in the alternative (iii) whether judicial directions arenecessary to ensure that the project is constructed and the premisesare handed over within a reasonable time – The writ petition u/Art.32 has been filed by a singular home buyer without seeking torepresent the entire class of home buyers – The petition proceedson the implicit assumption that the interest of all the buyers areidentical – There is no basis to make such an assumption – All buyersmay not seek a cancellation and refund of consideration – Apartfrom this aspect, the petitioner seeks other reliefs in aid of theprimary relief, including the constitution of a Committee presidedover by a former Judge of the Supreme Court for the purpose ofhandling the projects of the developer where moneys have beentaken from home buyers – There are specific statutory provisionsholding the field, including among them: (i) The Consumer ProtectionAct 1986 and its successor legislation; (ii) The Real Estate(Regulation and Development) Act 2016; and (iii) The Insolvencyand Bankruptcy Code 2016 – Insofar as the remedies of a criminalinvestigation are concerned, adequate remedies are available interms of the Code of Criminal Procedure 1973 – The Court has noreason to doubt the genuineness of the grievance which has beenespoused by the petitioner – However, the issue is whether hisrecourse to Art. 32 is the correct remedy when alternative modalitiesare available and particularly since the engagement of the Court ina petition of this nature would involve a supervision which does notlie within the province of judicial review – In view of the statutory

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Aframework, 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 petitionBunder Article 32 for more than one reason. There are specificstatutory provisions holding the field, including among them: (i)The Consumer Protection Act 1986 and its successor legislation;(ii) The Real Estate (Regulation and Development) Act2016; and (iii) The Insolvency and Bankruptcy Code 2016.C[Para 6][531-F-G]

2. Each of these statutory enactments has been made byParliament with a specific purpose in view. The 1986 Act as wellas the subsequent legislation contain provisions forrepresentative consumer complaints. One or more home buyersDcan consequently seek relief to represent a common grievancefor a whole class of purchasers of real estate. The RERA similarlycontains specific provisions and remedies for dealing with thegrievance of purchasers of real estate. The provisions of the IBChave specifically taken note of the difficulties which are faced byhome buyers by providing for remedies within the fold of theEstatute. [Para 7][532-A-C]

3. Entertaining a petition of this nature will involve theCourt in virtually carrying out a day to day supervision of a buildingproject. Appointing a Committee presided over by a former Judgeof this Court would not resolve the problem because the CourtFwill have nonetheless to supervise the Committee for the reliefssought in the petition under Article 32. Insofar as the remediesof a criminal investigation are concerned, there is reason for thisCourt not to entertain a petition directly under Article 32 in thepresent set of facts. Adequate remedies are available in terms ofGthe Code of Criminal Procedure 1973. The statutory procedureswhich are enunciated have to be invoked. Adequate provisionshave been made in the statute to deal with the filing of a complaintand for investigation in accordance with law. Judicial interventionis provided at appropriate stages by competent courts in that H

regard. In Devendra Dwivedi v. Union of India and Ors., a three-Judge Bench of this Court held that, determining “whetherrecourse to the jurisdiction under Article 32 be entertained in aparticular case is a matter for the calibrated exercise of judicialdiscretion.” It was further held that this remedy cannot be usedas a ruse to flood this Court with petitions that must be filedbefore the competent authorities set up pursuant to theappropriate statutory framework. In view of the statutoryframework, both in terms of civil and criminal law and procedure,this Court is of the view that entertaining a petition under Article32 would be inappropriate. The Court has no reason to doubt thegenuineness of the grievance which has been espoused by thepetitioner. However, the issue is whether his recourse to Article32 is the correct remedy when alternative modalities are availableand particularly since the engagement of the Court in a petitionof this nature would involve a supervision which does not lie withinthe province of judicial review. Real estate projects across thecountry may be facing difficulties. The intervention of the Courtcannot be confined to one or a few selected projects. Judicialtime is a precious resource which needs to be zealously guarded.This Court has to always be mindful of the opportunity costinvolved in exercising our discretion to admit a petition and tointervene, in terms of diversion of time and resources away fromother matters where intervention would be more apposite andnecessary. [Para 8][532-C-H; 533-A-B]

Shelly Lal v Union of India, Writ Petition (Civil) No1390 of 2020 – relied on.

Pawan Kumar Kushwaha and Ors. v LucknowDevelopment Authority and Ors., Writ Petition (Civil)No 1001 of 2020; Devendra Dwivedi v. Union of Indiaand Ors., Writ Petition (Criminal) 272 of 2020 –referred to.

EXTRA-ORDINARY ORIGINAL JURISDICTION : WritPetition (Civil) No. 150 of 2021.

(Under Article 32 of The Constitution of India)

Manoj V George, Ms. Shilpa Liza George, Ms. Akriti Jai, Panmei,Ms. Manju E. George, Advs. for the appearing parties.

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528SUPREME COURT REPORTS

AThe Judgment of the Court was delivered byDR. DHANANJAYA Y CHANDRACHUD, J.

1. These proceedings have been initiated under Article 32 of theConstitution by a purchaser, seeking directions in respect of a real estateproject called “Sushant Megapolis”, which is being developed by theBfifth, sixth and seventh respondents. The reliefs which have been sought,while invoking the jurisdiction of this Court under Article 32, as notedabove, are in the following terms:

“i.…a writ in the nature of Mandamus directing theRespondent No. 1 & 2 to cancel all the agreements withrespondent no.5,6 & 7 and to ensure that all the projects inwhich money has been taken from the buyers their moneyis refunded or the same is constructed and handed over ina reasonable period of time; C

ii.…a writ in the nature of Mandamus appointing a courtreceiver or form a committee headed by a retired judge ofthis Hon’ble Court along with other suitable persons fromdifferent fields to monitor / handle the projects ofRespondent 6 & 7 in which money has been taken from thebuyers; D

Eiii.…a writ of mandamus, or order or direction to conduct adetailed forensic audit for all the projects launched byrespondent no. 5,6 & 7 in its project under the Flagship of“SUSHANT MEGAPOLIS”;

iv.…a writ in the nature of mandamus or order or direction toFconduct investigation by the CBI-Central Bureau ofInvestigation of the large scale fraud and cheating done bythe officers of respondent no. 1 together with officers anddirectors of respondent no. 5,6 & 7 as the state agency hascompletely failed in its duty to investigate the matter; Gv.

…writ order or direction to direct all investigation agenciessuch as Serious Fraud Investigation Office, EnforcementDirectorate and others to investigate the money siphonedoff by the respondent no. 5, 6 & 7.

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vi.…any other writ, order or direction in favour of the Petitionerand such similarly placed persons, as this Hon’ble courtmay deem fit and proper in the circumstances of the case.”

2. The above extract would indicate that the primary relief whichhas been sought is (i) cancellation of all the agreements; (ii) refund ofmoneys to purchasers; and in the alternative (iii) ensuring that theconstruction is carried out and that the premises are handed over withina reasonable period of time. Incidental to the above reliefs, the petitionerseeks the constitution of a Committee headed by a former Judge of thisCourt together with other persons to monitor and handle the projects ofthe developer in the present case. The petitioner also seeks a forensicaudit, an investigation by CBI and by other authorities such as the SeriousFraud Investigation Office and Enforcement Directorate.

3. Mr Manoj V George, learned counsel appearing on behalf ofthe petitioner, submits that, in another project of the developer which isbeing implemented at Lucknow, notice was issued on a petition underArticle 32 of the Constitution (Pawan Kumar Kushwaha and Ors. vLucknow Development Authority and Ors.[1]) on 20 November 2020by a two-Judge Bench of this Court of which one of us was a member.On the above grounds, it has been submitted that it would be appropriatefor this Court to issue notice and tag the writ petition under Article 32with the earlier proceedings.

4. On 7 January 2021, a three-Judge Bench of this Court [ofwhich one of us was a member] has dealt with the maintainability of apetition under Article 32 in similar circumstances. In Shelly Lal v Unionof India[2], this Court declined to entertain the petition. The order of theCourt is extracted below:

“ORDER

1. A proposed construction project at NOIDA which did not takeoff from the drawing board has given rise to proceedings underArticle 32 of the Constitution by twenty five purchasers ofcommercial premises.

2. Invoking the jurisdiction under Article 32, the petitioners havesought, inter alia, the following directions:

1 Writ Petition (Civil) No 1001 of 2020

2 Writ Petition (Civil) No 1390 of 2020

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(i) A writ, order or direction to the respondents to protect theinterests and investments of customers/buyers in the largerpublic interest; A

(ii) A writ, order or direction for the revival of the project failingwhich the amounts invested by the petitioners be returnedwith interest at the rate of 18% per annum; and B

(iii) A court-monitored probe.

3. Having considered the cause which has been espoused by thepetitioners through their counsel, Mr Shikhil Suri, we are of theview that the exercise of the jurisdiction under Article 32 of theConstitution would not be warranted in the facts of the presentcase.

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4. Essentially, the writ petition requires the Court to step into theconstruction project and to ensure that it is duly completed. Thiswould be beyond the remit and competence of the Court underDArticle 32. Managing a construction project is not within thejurisdiction of the court.

5. Several provisions of law confer statutory rights on purchasersof real estate and invest them with remedies enforceable at law.These include the Consumer Protection Act 1986, the Real Estate(Regulation and Development) Act 2016 and the Insolvency andBankruptcy Code 2016. Parliament has enacted a statutory regimeto protect the rights of purchasers of real estate and created forawhich are entrusted with decision making authority.

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6. A decision of a public authority which is entrusted with a publicduty is amenable to judicial review. But it is quite another hypothesisto postulate that the decision making authority should be takenover by the court. The latter is impermissible. It would beinappropriate for this Court to assume the jurisdiction to supervisethe due completion of a construction project especially in factssuch as those presented in the present case. This will inevitablydraw the court into the day to day supervision of the project,including financing, permissions and execution – something whichlies beyond the ken of judicial review and the competence of thecourt. The court must confine itself to its core competencies whichconsist in the adjudication of disputes amenable to the application F

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of legal standards. We, consequently, leave it open to the petitionersto pursue the remedies available in law.

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5. [sic 7] The writ petition is disposed of, subject to the aforesaidliberty.

6. [sic 8] Pending application, if any, stands disposed of.”

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5. A definitive view on whether it would be appropriate for theCourt to entertain a petition under Article 32 seeking prayers similar tothose sought in the instant case has been taken in the above terms. Theabove reasons would ex facie apply to the facts of the present case.The reliefs which have been extracted earlier would involve the Court inan adjudicative process in determining whether (i) all the agreementsshould be cancelled; (ii) whether money which is paid by the home buyersshould be refunded; or in the alternative (iii) whether judicial directionsare necessary to ensure that the project is constructed and the premisesare handed over within a reasonable time. The writ petition under Article32 has been filed by a singular home buyer without seeking to representthe entire class of home buyers. The petition proceeds on the implicitassumption that the interest of all the buyers are identical. There is nobasis to make such an assumption. All buyers may not seek a cancellationand refund of consideration. Apart from this aspect, the petitioner seeksother reliefs in aid of the primary relief, including the constitution of aCommittee presided over by a former Judge of this Court for the purposeof handling the projects of the developer where moneys have been takenfrom home buyers.

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6. Following the earlier view which has been taken on 7 January2021, we are of the considered opinion that it would be inappropriate toentertain a petition under Article 32 for more than one reason. There arespecific statutory provisions holding the field, including among them:

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(i) The Consumer Protection Act 1986[3] and its successorlegislation;

(ii) The Real Estate (Regulation and Development) ActG2016[4]; and

(iii) The Insolvency and Bankruptcy Code 2016[5].

3 “1986 Act”

4 “RERA”

5 “IBC”

A7. Each of these statutory enactments has been made byParliament with a specific purpose in view. The 1986 Act as well as thesubsequent legislation contain provisions for representative consumercomplaints. One or more home buyers can consequently seek relief torepresent a common grievance for a whole class of purchasers of realestate. The RERA similarly contains specific provisions and remediesBfor dealing with the grievance of purchasers of real estate. The provisionsof the IBC have specifically taken note of the difficulties which arefaced by home buyers by providing for remedies within the fold of thestatute.

8. Entertaining a petition of this nature will involve the Court inCvirtually carrying out a day to day supervision of a building project.Appointing a Committee presided over by a former Judge of this Courtwould not resolve the problem because the Court will have nonethelessto supervise the Committee for the reliefs sought in the petition underArticle 32. Insofar as the remedies of a criminal investigation are Dconcerned, there is reason for this Court not to entertain a petition directlyunder Article 32 in the present set of facts. Adequate remedies areavailable in terms of the Code of Criminal Procedure 1973. The statutoryprocedures which are enunciated have to be invoked. Adequate provisionshave been made in the statute to deal with the filing of a complaint andfor investigation in accordance with law. Judicial intervention is providedEat appropriate stages by competent courts in that regard. In DevendraDwivedi v. Union of India and Ors.[6], a three-Judge Bench of thisCourt [of which one of us was a member] held that, determining “whetherrecourse to the jurisdiction under Article 32 be entertained in a particularcase is a matter for the calibrated exercise of judicial discretion.” It wasFfurther held that this remedy cannot be used as a ruse to flood this Courtwith petitions that must be filed before the competent authorities set uppursuant to the appropriate statutory framework. In view of the statutoryframework, both in terms of civil and criminal law and procedure, weare of the view that entertaining a petition under Article 32 would be inappropriate. The Court has no reason to doubt the genuineness of theGgrievance which has been espoused by the petitioner. However, the issueis whether his recourse to Article 32 is the correct remedy whenalternative modalities are available and particularly since the engagementof the Court in a petition of this nature would involve a supervision which does not lie within the province of judicial review. Real estate projectsacross the country may be facing difficulties. The intervention of theCourt cannot be confined to one or a few selected projects. Judicial timeis a precious resource which needs to be zealously guarded. We have toalways be mindful of the opportunity cost involved in exercising ourdiscretion to admit a petition and to intervene, in terms of diversion oftime and resources away from other matters where our interventionwould be more apposite and necessary. In certain cases in the past, thiscourt has intervened on behalf of home buyers. These include :

(i) Projects of Amrapali Group (Bikram Chatterji v Unionof India[7]); and

(ii) Unitech matter (Bhupinder Singh v Unitech Ltd[8]).

Nothing contained in the present judgment will affect thoseproceedings or similar cases which have been monitored. In the presentcase, there is no reason to assume that the petitioner represents a class,apart from the other reasons set out earlier for declining intervention.Hence, on a considered view and for the reasons we have indicatedabove, we decline to entertain the petition under Article 32. However, interms of the order dated 7 January 2021, we clarify that this will notcome in the way of the petitioner espousing the remedies which areavailable to him under the relevant statutory provisions.

9. Subject to the aforesaid clarification, the petition shall standdisposed of.

Ankit Gyan

Petition disposed of.

7 Writ Petition (C) No 940 of 2017

8 Civil Appeal No 10856 of 2016

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