UPENDRA CHOUDHURYversusBULANDSHAHAR DEVELOPMENT AUTHORITY & ORS.

                         [2021] 1 S.C.R. 525                            525


                    UPENDRA CHOUDHURY                                   A
                                 v.
  BULANDSHAHAR DEVELOPMENT AUTHORITY & ORS.
               (Writ Petition (Civil) No. 150 of 2021)
                         FEBRUARY 11, 2021                              B
         [DR. DHANANJAYA Y CHANDRACHUD AND
                           M.R. SHAH, JJ.]
       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        C
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.     D
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      E
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    F
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         G
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
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                                  525
526            SUPREME COURT REPORTS                       [2021] 1 S.C.R.


A     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
B     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.
C     [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
D     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
E     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
F     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
G     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

H
     UPENDRA CHOUDHURY v. BULANDSHAHAR DEVELOPMENT                     527
                      AUTHORITY


regard. In Devendra Dwivedi v. Union of India and Ors., a three-       A
Judge 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
                                                                       B
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            C
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
                                                                       D
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       E
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                          F
      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.
       EXTRA-ORDINARY ORIGINAL JURISDICTION : Writ                     G
Petition (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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528                SUPREME COURT REPORTS                        [2021] 1 S.C.R.


A           The Judgment of the Court was delivered by
            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
B     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
C                    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
D                    receiver or form a committee headed by a retired judge of
                     this Hon’ble Court along with other suitable persons from
                     different fields to monitor / handle the projects of
                     Respondent 6 & 7 in which money has been taken from the
                     buyers;
E           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 of
                     “SUSHANT MEGAPOLIS”;
            iv.      …a writ in the nature of mandamus or order or direction to
F                    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;
G           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.


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        UPENDRA CHOUDHURY v. BULANDSHAHAR DEVELOPMENT                              529
          AUTHORITY [DR. DHANANJAYA Y CHANDRACHUD, J.]


          vi.    …any other writ, order or direction in favour of the Petitioner   A
                 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               B
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        C
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                    D
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 would be appropriate
for this Court to issue notice and tag the writ petition under Article 32
with the earlier proceedings.                                                      E
       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 India2, this Court declined to entertain the petition. The order of the
Court is extracted below:                                                          F
          “                           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.                                                     G
          2.Invoking the jurisdiction under Article 32, the petitioners have
          sought, inter alia, the following directions:

1
    Writ Petition (Civil) No 1001 of 2020
2
    Writ Petition (Civil) No 1390 of 2020                                          H
530          SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A     (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
B              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
C     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
D     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
E     (Regulation and Development) Act 2016 and the Insolvency and
      Bankruptcy Code 2016. Parliament has 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
F     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
G
      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
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     UPENDRA CHOUDHURY v. BULANDSHAHAR DEVELOPMENT                              531
       AUTHORITY [DR. DHANANJAYA Y CHANDRACHUD, J.]


       of legal standards. We, consequently, leave it open to the petitioners   A
       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.”
                                                                                B
       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           C
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         D
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         E
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       F
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
                                                                                G
               20164; and
       (iii)   The Insolvency and Bankruptcy Code 20165.
3
  “1986 Act”
4
  “RERA”
5
  “IBC”                                                                         H
532                SUPREME COURT REPORTS                         [2021] 1 S.C.R.


A            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
B
      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
C     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
D     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
E     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
F     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
G     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

      6
H         Writ Petition (Criminal) 272 of 2020
        UPENDRA CHOUDHURY v. BULANDSHAHAR DEVELOPMENT                            533
          AUTHORITY [DR. DHANANJAYA Y CHANDRACHUD, J.]


does not lie within the province of judicial review. Real estate projects        A
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
                                                                                 B
time and resources away from other matters where our intervention
would be more apposite and necessary. In certain cases 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
                                                                                 C
          (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.         D
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.
                                                                                 E
      9. Subject to the aforesaid clarification, the petition shall stand
disposed of.

Ankit Gyan                                               Petition disposed of.

                                                                                 F




                                                                                 G




7
    Writ Petition (C) No 940 of 2017
8
    Civil Appeal No 10856 of 2016                                                H