Dr Dhananjaya Y Chandrachud, J
1 These proceedings have been initiated under Article 32 of the Constitution by a
purchaser, seeking directions in respect of a real estate project called “Sushant
Megapolis”, which is being developed by the fifth, sixth and seventh
respondents. The reliefs which have been sought, while invoking the jurisdiction
of this Court under Article 32, as noted above, are in the following terms:
“i. …a writ in the nature of Mandamus directing the
Respondent No. 1 & 2 to cancel all the agreements with
respondent no.5,6 & 7 and to ensure that all the projects
in which money has been taken from the buyers their
money is refunded or the same is constructed and
handed over in a reasonable period of time;
ii. …a writ in the nature of Mandamus appointing a court
Respondent 6 & 7 in which money has been taken from
the buyers;
Iii. …a writ of mandamus, or order or direction to conduct a
detailed forensic audit for all the projects launched by
respondent no. 5,6 & 7 in its project under the Flagship
iv. …a writ in the nature of mandamus or order or direction
to conduct investigation by the CBI-Central Bureau of
Investigation of the large scale fraud and cheating done
by the officers of respondent no. 1 together with officers
and directors of respondent no. 5,6 & 7 as the state
agency has completely failed in its duty to investigate
the matter;
v. …writ order or direction to direct all investigation
agencies such as Serious Fraud Investigation Office,
Enforcement Directorate and others to investigate the
money siphoned off by the respondent no. 5, 6 & 7.
vi. …any other writ, order or direction in favour of the
Petitioner and such similarly placed persons, as this
Hon'ble court may deem fit and proper in the
circumstances of the case.”
2 The above extract would indicate that the primary relief which has been sought
is (i) cancellation of all the agreements; (ii) refund of moneys to purchasers; and
in the alternative (iii) ensuring that the construction is carried out and that the
premises are handed over within a reasonable period of time. Incidental to the
above reliefs, the petitioner seeks the constitution of a Committee headed by a
former Judge of this Court together with other persons to monitor and handle the
projects of the developer in the present case. The petitioner also seeks a
forensic audit, an investigation by CBI and by other authorities such as the
Serious Fraud Investigation Office and Enforcement Directorate.
3 Mr Manoj V George, learned counsel appearing on behalf of the petitioner,
submits that, in another project of the developer which is being implemented at
Lucknow, notice was issued on a petition under Article 32 of the Constitution
(Pawan Kumar Kushwaha and Ors. v Lucknow Development Authority
and Ors.1) on 20 November 2020 by 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
1 Writ Petition (Civil) No 1001 of 2020
would be appropriate for this Court to issue notice and tag the writ petition
under Article 32 with the earlier proceedings.
4 On 7 January 2021, a three-Judge Bench of this Court [of which one of us was a
member] has dealt with the maintainability of a petition under Article 32 in
similar circumstances. In Shelly Lal v Union of India 2, this Court declined to
entertain the petition. The order of the Court is extracted below:
“ ORDER
1 A proposed construction project at NOIDA which did not
take off from the drawing board has given rise to proceedings
under Article 32 of the Constitution by twenty five purchasers of
commercial premises.
2 Invoking the jurisdiction under Article 32, the petitioners
have sought, inter alia, the following directions:
(i) A writ, order or direction to the respondents to protect
the interests and investments of customers/buyers in the larger
public interest;
(ii) A writ, order or direction for the revival of the project
failing which the amounts invested by the petitioners be
returned with interest at the rate of 18% per annum; and
(iii) A court-monitored probe.
3 Having considered the cause which has been espoused
by the petitioners through their counsel, Mr Shikhil Suri, we are
of the view that the exercise of the jurisdiction under Article 32
of the Constitution would not be warranted in the facts of the
present case.
4 Essentially, the writ petition requires the Court to step
into the construction project and to ensure that it is duly
completed. This would be beyond the remit and competence of
the Court under Article 32. Managing a construction project is
not within the jurisdiction of the court.
5. Several provisions of law confer statutory rights on
purchasers of 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 and Bankruptcy Code 2016. Parliament has
2 Writ Petition (Civil) No 1390 of 2020
enacted a statutory regime to protect the rights of purchasers
of real estate and created fora which are entrusted with
decision making authority.
6. A decision of a public authority which is entrusted with a
public duty is amenable to judicial review. But it is quite another
hypothesis to postulate that the decision making authority
should be taken over by the court. The latter is impermissible.
It would be inappropriate for this Court to assume the
jurisdiction to supervise the due completion of a construction
project especially in facts such as those presented in the
present case. This will inevitably draw the court into the day to
day supervision of the project, including financing, permissions
and execution – something which lies beyond the ken of judicial
review and the competence of the court. The court must
confine itself to its core competencies which consist in the
adjudication of disputes amenable to the application of legal
standards. We, consequently, leave it open to the petitioners to
pursue the remedies available in law.
5 [sic 7]The writ petition is disposed of, subject to the
aforesaid liberty.
6 [sic 8] Pending application, if any, stands disposed of.”
5 A definitive view on whether it would be appropriate for the Court to entertain a
petition under Article 32 seeking prayers similar to those sought in the instant
case has been taken in the above terms. The above reasons would ex facie
apply to the facts of the present case. The reliefs which have been extracted
earlier 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 under
Article 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 this Court for the purpose of handling the projects of the
developer where moneys have been taken from home buyers.
6 Following the earlier view which has been taken on 7 January 2021, we are of the
considered opinion that 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 19863 and its successor legislation;
(ii) The Real Estate (Regulation and Development) Act 20164; and
(iii) The Insolvency and Bankruptcy Code 20165.
7 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.
8 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
3 “1986 Act” 4 “RERA” 5 “IBC”
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.6, a three-Judge Bench of this Court [of
which one of us was a member] 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, we are 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. We have 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 our intervention would be more apposite and necessary. In certain cases
6 Writ Petition (Criminal) 272 of 2020
in the past, this court has intervened on behalf of home buyers. These include :
(i) Projects of Amrapali Group (Bikram Chatterji v Union of India7); and
(ii) Unitech matter (Bhupinder Singh v Unitech Ltd8).
Nothing contained in the present judgment will affect those proceedings or
similar cases which have been monitored. In the present case, 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 indicated above, we decline to entertain the petition under
Article 32. However, in terms of the order dated 7 January 2021, we clarify that
this will not come in the way of the petitioner espousing the remedies which are
available to him under the relevant statutory provisions.
9 Subject to the aforesaid clarification, the petition shall stand disposed of.
[Dr Dhananjaya Y Chandrachud]
[M R Shah]
New Delhi; February 11, 2021 -S-
7 Writ Petition (C) No 940 of 2017 8 Civil Appeal No 10856 of 2016
ITEM NO.6 Court 6 (Video Conferencing) SECTION X
Writ Petition(s)(Civil) No(s).150/2021
UPENDRA CHOUDHURY Petitioner(s)
VERSUS
BULANDSHAHAR DEVELOPMENT AUTHORITY & ORS. Respondent(s)
Date : 11-02-2021 This petition was called on for hearing today.
CORAM :
For Petitioner(s) Mr. Manoj V George, Adv.
Ms. Shilpa Liza George, AOR
Ms. Akriti Jai, Adv.
Mr. Panmei, Adv.
Ms. Manju E. George, Adv.
For Respondent(s)
UPON hearing the counsel the Court made the following
O R D E R
The petition is disposed of in terms of the signed reportable judgment.
Pending application, if any, stands disposed of.
(Signed reportable judgment is placed on the file)