The Constitution of India has bestowed High Courts of our country with significant authority. Perhaps, the most crucial power exercised by the High Courts is that of judicial intervention under Article 227 of the Constitution, which could be said to be embedded into the basic structure of the Constitution. Article 227 vests every High Court with supervisory jurisdiction over all courts and tribunals throughout the territories in relation to which it exercises territorial jurisdiction. Recently, the scope of judicial intervention vis-à-vis matters decided by the National Consumer Disputes Redressal Commission (NCDRC) has witnessed a paradigm shift, which is the subject matter of discussion in this article. 

Scope of Article 227

Article 227 reads as follows: 

“Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction…” 

The Constitution empowers High Courts to supervise cases/decisions of subordinate courts or tribunals falling within its territorial jurisdiction. The High Courts is vested with powers by the mandate of the constitution to intervene in matters where in the opinion of the High Court, the subordinate court or tribunal has acted arbitrarily, illegally or in violation of principles of natural justice. The bedrock of the said power is to rectify errors or irregularities, if any, in the decisions of lower courts and tribunals, thus upholding the propriety and integrity of the judicial system. 

There is no gainsaying that this power ought to be exercised sparingly and with circumspection. The High Court could be convinced to exercise its powers under Article 227 of the Constitution, in matters where there is no other alternate and efficacious remedy or where the subordinate court or tribunal exercised a power not vested in them or incorrectly exercised power vested in them- thus being orders without jurisdiction, or where a fundamental right has been impinged or in the scenarios where the decision of the subordinate court or tribunal has resulted in patent violation of principles of natural justice. 

Shift in the Legal Landscape
Etymologically viewed, over a period of time, the difference between Article 226 and 227 of the Constitution became blurred, with petitions being filed and adjudicated conjointly without reference to the distinct principles that govern the said powers. The Hon’ble Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, highlighted the distinction between the two Articles and that in the jurisdiction that applies to them. 

Under the statutory regime of the Consumer Protection Act 2019, the NCDRC is the apex body adjudicating consumer disputes. The said commission exercises original as well as appellate jurisdiction. The distinction between Articles 226 and 227 of the Constitution in the field of consumer jurisprudence was captured with perspicuity in Cicily Kallarackal v. Vehicle Factory, [(2012) 8 SCC 524], where in the Supreme Court proscribed the practise of parties invoking the writ jurisdiction of the High Court, under Article 226 of the Constitution, when the statute provided for an alternate remedy of appeal. 

Many have relied on the said ratio of the Hon’ble Supreme Court, to draw an analogy that the said decision also, thus, necessarily bars recourse to Article 227 in orders arising from original jurisdiction of the NCDRC. It is this erroneous interpretation that was corrected by a noticeable pronouncement of the Hon’ble Delhi High Court in Lucina Land Development Ltd. v. Union of India & Ors. [2022 SCC Online Del 1274]. In the said matter, the Petitioner assailed order passed by the NCDRC under Section 12(1)(c) of the Consumer Protection Act, 1986 in an original complaint. The primary contention of the Petitioner was that the impugned order was entirely sans jurisdiction and therefore, warranting the interference of the Hon’ble High Court. The Respondent opposed the petition on maintainability of the same on the ground that the statute provided alternate remedy against the decisions of the NCDRC passed in a Complaint by way of an appeal to the Supreme Court and thus, intervention by the High Court in exercise of supervisory jurisdiction could not be exercised. 

The Hon’ble High Court discussed several judgments that had been quoted before it, but principally relied on the judgment of the Hon’ble Supreme Court in State of Karnataka v. Vishwabharathi House Building Coop. Society, [(2003) 2 SCC 412], where in the Apex Court had held that remedy under Article 227 of the Constitution of India, existed independently of and in addition to the remedy of appeal available under the statute. It was observed: 

“53. The provisions relating to power to approach appellate court by a party aggrieved by a decision of the forums/State Commissions as also the power of High Court and this Court under Article 226/227 of the Constitution of India and Article 32 of this Court apart from Section 23 of the Act provide for adequate safeguards.” 

Alliterative to the decision of the Hon’ble Supreme Court in Virudhnagar Hindu Nadargal Paribalana Sabai .v. Tuticorin Educational Society (referred hereinafter), the Hon’ble High Court observed that the decisions or orders passed by the Civil Courts stood on a different footing from the decisions or orders passed by the tribunals. While availability of an alternate remedy of appeal could be construed to be a near total bar in orders passed by Civil Courts, the same may not hold true qua orders passed by the tribunals. Reference in this regard was made to judgment of the Supreme Court in Radhey Shyam v. Chabi Nath [(2015) 5 SCC 423] and Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. v. Tuticorin Educational Society and Ors. [(2019) 9 SCC 538]. 

In view of the above cited judgment, the Hon’ble Delhi High Court observed that “a case where the remedy of appeal is to the Supreme Court, such remedy before resorting to a writ remedy available under the Constitution to the High Court. A party cannot be directed to exhaust the alternate remedy available before the Supreme Court before approaching the High Courts under Article 226. There can be no appeal from Caesar to Mark Antony.”

Interestingly, the said discussion was carried to the Supreme Court in Ibrat Faizan v. Omaxe Buildhome (P) Ltd., [2022 SCC OnLine SC 620]. While refraining parties to invoke jurisdiction of the Supreme Court under Article 136 when the remedy under Article 227 before the High Court was available, the Supreme Court observed that: 

“26. No so far as the remedy which may be available under Article 136 of the Constitution of India is concerned, it cannot be disputed that the remedy by way of an appeal by special leave under Article 136 of the Constitution of India may be too expensive and as observed and held by this Court in the case of L. Chandra Kumar (supra), the said remedy can be said to be inaccessible for it to be real and effective. Therefore, when the remedy under Article 227 of the Constitution of India before the concerned High Court is provided, in that case, it would be in furtherance of the right of access to justice of the aggrieved party, may be a complainant, to approach the concerned High Court at a lower cost, rather than a Special Leave to Appeal under Article 136 of the Constitution.” 

Thus, the Supreme Court proscribed the practice of parties of bypassing the judicial hierarchy and approaching the Supreme Court without exhausting other remedies available to them, before the High Courts. In the recent judgment of the Supreme Court i.e. Universal Sompo General Insurance Co. Ltd. v. Suresh Chand Jain and Anr. [2023 SCC OnLine SC 877], the Hon’ble Apex Court held in unequivocal terms that the remedy of special leave to appeal should not be permitted to be used to short circuit the legal procedure prescribed when alternate remedy before the High Court in its writ/supervisory jurisdiction is available: 

“38. In the aforesaid view of the matter, we have reached to the conclusion that we should not adjudicate this petition on merits. We must ask the petitioner herein to first go before the jurisdictional High Court either by way of a writ application under Article 226 of the Constitution or by invoking the supervisory jurisdiction of the jurisdictional High Court under Article 227 of the Constitution. Of course, after the High Court adjudicates and passes a final order, it is always open for either of the parties to thereafter come before this Court by filing special leave petition, seeking leave to appeal under Article 136 of the Constitution.” 

It is pertinent to mention that the judgment of the Hon’ble High Court in Lucina Land Development was impugned before the Hon’ble Supreme Court by way of SLP No(s) 16912 of 2022. The Hon’ble Supreme Court while pronouncing the final order in the matter on 10.04.2024, did not upset/set aside/modify the finding of the Hon’ble High Court with regard to the maintainability of a petition filed under Article 227 of the Constitution of India against orders of the NCDRC in seisin of its original jurisdiction. 

In the opinion of the authors, it is no more res integra that a petition filed under Article 227 of the Constitution of India impugning orders of the Learned NCDRC- whether passed in its original jurisdiction or its appellate jurisdiction, is maintainable subject to the said order falling true on the touchstones of the tests that have been discussed hereinabove.

About the Author(s):
  • Kanika Agnihotri is a lawyer with over two decades of practice in various courts, pan India. She is a litigating lawyer with her core area of practice based in the High Court of Delhi.
  • Yashodhara Gupta is a practicing lawyer with several years of practice. Her core area of expertise is civil litigation.

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