A Division bench of the Hon’ble Supreme Court comprising of Justices Dr. Dhananjaya Y. Chandrachud and M R Shah in Upendra Choudhury v. Bulandshahar Development Authority and Others, REED 2021 SC 02546 held that proceedings under Article 32 of the Constitution by a homebuyer, seeking certain reliefs in respect of a real estate project, cannot be entertained. The Supreme Court also observed that there were specific statutory provisions, inter-alia, Consumer Protection Act, 1986 and its successor legislation (Consumer Protection Act), the Real Estate (Regulation and Development) Act, 2016 (RERA), the Insolvency and Bankruptcy Code, 2016 (IBC), under which the homebuyers would have effective remedy.
The Appellant filed this petition under Section 32 of the Constitution seeking directions such as (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, in respect of a real estate project which is being developed by the Respondents. Further, incidental to the above reliefs, the petitioner sought constitution of a Committee headed by a former Judge of the Court together with other persons to monitor and handle the projects of the developer in the case. Additionally, the petition also sought a forensic audit, an investigation by CBI and by other authorities such as the Serious Fraud Investigation Office and Enforcement Directorate.
The Supreme Court noted that writ petition under Article 32 in the present case has been filed by a singular home buyer without seeking to represent the entire class of home buyers. Further, the petition proceeded on the implicit assumption that the interests of all the buyers were identical; however, there was no basis to make such an assumption and all buyers may not seek a cancellation and refund of consideration.
The Supreme Court adverted to its judgment in Shelly Lal v Union of India Writ Petition (Civil) No 1390 of 2020 to hold that admission of the petition in the present case would be inappropriate in light of specific remedies available to petitioner in statutes such as Consumer Protection Act, RERA and IBC. Insofar as the remedies of a criminal investigation were concerned, the court noted that adequate remedies were available in terms of the Code of Criminal Procedure 1973. Further, reliance was placed on Devendra Dwivedi v. Union of India and Ors Writ Petition (Criminal) 272 of 2020, wherein it was held that, determining whether recourse to the jurisdiction under Article 32 is entertained in a particular case is a matter for the calibrated exercise of judicial discretion. It was further held that remedy under Article 32 cannot be used as a ruse to flood the Court with petitions that must be filed before the competent authorities set up pursuant to the appropriate statutory framework.
Hence, for the reasons as indicated above, the Court declined to entertain the petition under Article 32. However, the petitioner was provided the liberty of utilizing the remedies available to him under the relevant statutory provisions.