V. Premkumar and Others vs The Vyalikaval House Building Co-operative Society Ltd.

J.S. Khehar, C.J.—The Petitioners sought grant of membership of the Vyalikaval House Building Co-operative Society Limited. Having been assigned membership numbers, they were also issued pass books. Subsequently, all the Petitioners, having paid the site value, were allotted sites by the Respondent/society. It is the case of the Petitioners, that having paid the entire consideration amount for the sites allotted to them, they were actually granted possession certificates by the Respondent/society. The failing at the hands of the Respondent/society, according to the Petitioners is, that the Respondent/society failed to execute sale deeds for conveying the sites allotted to the individual Petitioners.

In order to enforce their rights, to require the Respondent/society to execute sale deeds in their favour, the Petitioners in the first instance filed complaints before the III Additional Bangalore Urban District; Consumer Disputes Redressal Forum, Bangalore. The claims raised by the Petitioners were allowed by the aforesaid Forum, on 10.11.2006.

Dissatisfied with the determination rendered by the Consumer Forum, the Respondent/society preferred appeals before the Karnataka State Consumer Disputes Redressal Commission, which came to be allowed on 15.5.2009. The Petitioners have approached this Court, so as to assail the decision rendered by the Karnataka State Consumer Disputes Redressal Commiseion dated 15.5.2009, by filing the instant writ petitions.

Before examining the controversy on merits, we called upon the learned Counsel for the Petitioners to assist us on the maintainability of the instant writ petitions, (whereby, the Petitioners had assailed the order dated 15.5.2009 rendered by the Karnataka State Consumer Disputes Redressal Commission). In response to the aforesaid, learned Counsel for the Petitioners invited our attention to a judgment rendered by a Division Bench of this Court in Smt. O.K. Devaki and Another Vs. Standard Chartered Bank and Another, . Learned Counsel for the Petitioners, in the first instance, brought to our notice, a decision rendered by a Constitution Bench of the Supreme Court, which was relied upon by the Division Bench in paragraph 12 of its order.

Paragraph 12 of the order passed by the Division Bench is, accordingly, being reproduced hereunder:

This argument of learned Counsel for the Respondent No. 2, Sri H.S. Lingaraj and Sri Shohit H. Shetty. learned Counsel for the Respondent No. 1. has been controverted by the Petitioners on the ground that the wordings employed in Section 21B of the Act would show that they are akin to the wordings of Section 115 of the Code of Civil Procedure. It is well settled in law that scope of interference in revision is much narrower than either in the appeal or in a Writ Petition filed under Articles 226 and 227 of the Constitution of India. To buttress this contention further, several judgments of High Courts and the Supreme Court have been put in service before us. No doubt, it is true that the Petitioners have statutory-remedy of preferring a revision before the National Commission u/s 21B of the Act against the impugned orders, but on that ground alone, it would not be proper for this Court to throw the Petitioners as the threshold, on the ground of availability of an alternative, efficacious and statutory remedy of revision available to them. Time and again, Supreme Court has reminded us with regard to the power conferred under Articles 226 and 227 of the Constitution of India, wherein the writ of certiorari can be issued and looking to the facts and features of the case, the reliefs claimed, are moulded so as to see that ends of justice are met. State of U.P. v. Mohammad Nooh. The Constitution Bench in the aforesaid case in a terse language held as under:

If therefore, the existence of other adequate legal remedies is not per se a bar to the issue of a writ of certiorari and if in a proper case it may be the duty of the superior Court to issue a writ of certiorari to correct the errors of an inferior Court or Tribunal called upon to exercise judicial or quasi judicial functions and not to relegate the Petitioner to other legal remedies available to him and if the superior Court can in a proper case exercise its jurisdiction in favour of a Petitioner who has allowed the time to appeal to expire or has not perfected his appeal, e.g., by furnishing security required by the statute, it cannot then be laid down as an inflexible rule of law that the superior Court must deny the writ when an inferior Court or Tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play merely because such decision has been upheld by another inferior Court or Tribunal on appeal or revision.

In addition to the aforesaid, learned Counsel for the Petitioners invited our attention to the conclusions drawn 5 by the Division Bench in paragraphs 20 to 22. The aforesaid conclusions are also being reproduced hereunder:

Considering the aforesaid judgments and facts of the case in hand, we have no doubt in our mind even though that the Petitioners had a remedy of filing a statutory revision against the impugned order passed by the State Commission to the National Commission, but the moot question is with regard to competence and jurisdiction of interference. Needless to say, in a revision, jurisdiction becomes not only narrower, but limited also. Unless the case falls strictly within the parameter of the wordings used in Clause B of Section 21 of the Act, interference may not be possible, more so when there is finding of fact recorded by two authorities, whereas in a petition under Articles 226 and 227 1of the Constitution of India, the scope is not only wider but larger also, where many questions can be considered and decided so as to do complete justice between the parties.

In view of the aforesaid, we have no hesitation to hold that against the order of the State Commission, party if so desires, can avail of the remedy available under Articles 226 and 227 of the Constitution of India.

There is yet another angle to this petition. Order dated 08.02.2008 shows that on the first date of hearing, Writ Petition itself stood admitted and there is long catena of cases of various High Courts and Supreme Court holding therein that once the petition has been admitted, then it is neither proper nor judicial to throw it on the ground of availability of an alternative and efficacious remedy. Thus, on this additional ground, we are of the considered opinion that this Writ Petition is maintainable, and that is how we have proceeded to hear the learned Counsel for the parties on merits.

Based on the aforesaid determination rendered by the Division Bench, it is the vehement contention of the learned Counsel for the Petitioners, that the instant writ petitions cannot be dismissed, solely on the ground of maintainability.

We have given our thoughtful consideration to the factual, as well as, legal conclusions drawn by the Division Bench in O.K. Devaki''s case supra. It is, however, not possible for us to record a finding in favour of the Petitioners to the effect, that the instant writ petitions are maintainable under Article 226 of the Constitution of India. The judgment of the Constitution Bench of the Supreme Court, referred to in paragraph 12 extracted hereinabove reveals, that in a situation wherein an inferior Court or Tribunal, by disregarding all principles of natural justice and all accepted rules of procedure, arrives at a conclusion, which shocks the sense of justice and fair play, it would be open to a High Court to exercise its jurisdiction and entertain a claim under Article 226 of the Constitution of India, even though an alternative remedy was available. Insofar as the conclusions recorded in paragraphs 20 and 21 (extracted hereinabove) are concerned, the same are based on the aforesaid determination of the Apex Court. We are satisfied, that there is no such material, in so far as the merits of the controversy in the instant cases are concerned, which would shock the sense of justice of this Court, on account of procedural or other lapses at the hands of the Tribunal, the order whereof, is subject matter of challenge before this Court. It would be relevant to mention, that the basis for entertaining the writ petition in O.K. Devaki''s case supra must necessarily emerge from the conclusions drawn in paragraph 22 wherein, the Division Bench observes, that the matter had been pending consideration before this Court after admission for a number of years, and that, it would not be justified at this stage to relegate the Petitioner to his remedy under the appropriate statutory provisions. Even this aspect of the matter is not available to the Petitioners in the instant writ petitions, inasmuch as, the instant writ petitions have been listed for motion hearing for the first time today.

For the reasons recorded hereinabove, we are of the view, that the instant writ petitions are clearly not maintainable, and cannot be entertained, on account of the fact, that an efficacious alternative remedy is available to the Petitioners. The Petitioners are, accordingly, relegated to the aforesaid remedy, under the provisions of the Consumer Protection Act, 1986.

Disposed of in the aforesaid terms.