Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5802 OF 2018

RAMESHWAR PRASAD SHRIVASTAVA AND ORS. ……Appellants

VERSUS

DWARKADHIS PROJECTS PVT. LTD. AND ORS.         ..…. Respondents

WITH

CIVIL APPEAL NO. 9162 OF 2018

AVINASH GAUR AND ORS. ……Appellants

VERSUS

DWARKADHIS PROJECTS PVT. LTD. AND ORS. ……Respondents

JUDGMENT

Uday Umesh Lalit, J.

1. These appeals under Section 23 of the Consumer Protection Act, 1986

(hereinafter called ‘the Act’) are directed against the judgments and orders

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      2 dated 13.02.2018 and 08.08.2018 passed by the National Consumer Disputes

Redressal  Commission,  New  Delhi  (‘the  National  Commission’ for  short)

dismissing  Consumer  Case  Nos.250  of  2013  and  43  of  2014  as  not

maintainable.

2. An  advertisement  campaign  was  started  by  the  first  respondent

sometime in 2006-2007 for  sale  of  apartments  in  a  group housing project

called “Aravali Heights” located at Sector-24, Dharuhera, Haryana.  Various

interested  persons  booked  their  apartments  and  entered  into  builder-buyer

agreements.  Clause 11 of such typical agreement provided that the possession

would  be  delivered  by  the  first  respondent  within  three  years.   The  time

specified for delivery thus expired in the year 2010 but no possession was

offered within the stipulated time.  It appears that letters were received by

various such buyers from April, 2012 onwards asking for payment of final

instalment connected with delivery of possession.  Various buyers found that

the apartments were not habitable at all and the infrastructure such as roads,

water  supply,  sewerage,  storm water  drain,  fire  fighting system, electricity

were not constructed or made functional. Some of the buyers therefore filed

Civil  Writ  Petition  No.25054  of  2014  in  the  High  Court  of  Punjab  and

Haryana which was disposed of by the High Court directing said petitioners to

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      3 make appropriate representation to the competent authority.  It further appears

that thereafter detailed representations were made and an order came to be

passed by the concerned directorate which was then challenged by certain

allottees by filing Civil Writ Petition No.26358 of 2016.

3. At  this  stage  19  such  allottees  came  together  and  filed  a  joint

complaint  being  Consumer  Case  No.250  of  2013  on  06.08.2013  in  the

National Commission praying following reliefs:

“1. For delayed possession, this Hon’ble commission may direct  the Respondent  No.1 to  provide  a  tower- wise  schedule  for  completion  and  handing  over  the possession  of  all  the  flats  in  the  “Aravali  Heights” Multi-storeyed  Group  Housing  Complex)  located  at Sector 21, Dharuhera on the basis of current progress & development activities.

Direct  the  Respondent  No.1  to  provide  tower-wise construction status achieved so far for each tower in the complex  with  corresponding  dates  of  achieving completion  and  an  honest  and  logical  tower-wise details/list  of  unfinished  construction  tasks  and corresponding schedule of completion thereof.

Payment  of  penalty  @  36  per  cent  per  annum, compounded annually (at the prevailing market rate) be imposed on the total amount paid to the builder so far by  the  apartment  buyers  and  be  directed  to  be  paid immediately  or  at  the  time  of  possession  to  be calculated on the basis explained in the complaint.

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      4 2. Declare that the demand raised by the Respondent No.1 for the enhanced/extra EDC by including interest thereon as null and void.

Direct  the Respondent  No.1 to  provide details  of the  initial  EDC  and  EDC  Charge  and  Calculations thereof in terms of the latest directive/memo issued by the  official  Respondents  including  the  status  of  its payment  by  the  Builder  to  the  DGTCP  –  Haryana including their payments by the Respondent No.1 to the DGTCP – Haryana.

Direct  the  builder  to  raise  fresh/rectified  demand bills/letter  towards EDC Charges after  addressing the stated issues-supra.  Direct the adjustment of the extra amounts paid by some of the Buyers against the EDC with  interest  @  24%  thereon  against  the  fresh computations/bills raised as above.

Direct  the  Respondent  No.1  to  maintain transparency in the matter of payment of EDC Charges to  the  Authorities  by  displaying  the  status  on  their Website so as to restore Buyer Confidence.

3. Direct the Respondent No.1 to refund the open stilt car  parking  charges  in  the  sum  of  Rs.75,000/-  to Rs.1,50,000/- to the buyers and the community building membership charges – these being not saleable and part of common areas and not belonging to the Respondent No.1

4. Direct the Respondent No.1 to refrain from raising illegal demands of new PLC and immediately withdraw their demand letters to customers of some of the units demanding new PLC under filmsy grounds.

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      5 Direct  the Respondent No.1 to refund with 36%

interest  the  PLC  money  claimed  from  all  those consumer/Complainants  whose  flats  have  ceased  to remain  Green  Facing/falling  under  PLC  of  Green facing.

5. Direct the Respondent No.1 to refrain from raising illegal  demands  of  the  additional  electricity  charges, and to  immediately withdraw their  demand letters  to customers  of  some  of  the  units  demanding  the additional electricity charges under flimsy grounds.

6. Direct the Respondent No.1 to refrain from raising illegal demands of the electricity charges,  as the said demand and the affixation of the electricity charges is unilateral, and any such charges towards the electricity are payable when the possession is given, and for an amount, which is determined in consultation with the buyers.

7.  Direct the Respondent No.1 to refrain from raising illegal demands of the Maintenance Charges, as the said charges are payable when the possession is given to the buyers after completing the flat in all respect.

8. Direct the Respondent No.1 to pay penalty for the mental  harassment  caused  to  the  Complainants  @ 10,00,000/- (Rupees Ten lakhs) per Complainant).

9. Direct  the Respondent No.1 to pay costs towards Legal  expenditure  @  Rs.50,000/-  (Rupees  Fifty Thousand) per Complainant.  

10. Direct the Respondent No.1 to complete the project and  the  flats  with  all  the  amenities  and  facilities including  water  connection,  electricity  connection,

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      6 power back up, roads, park, parking space, club house, street  lighting,  sewage  drains,  rainwater  drains, firefighting system etc.

11. Declare  the  aforesaid  legal  omissions  and commissions  as  amounting  deception,  deficiency  in service and amounts  to  unfair  trade practice together with monetary compensation/penalty/etc. as prayed in the  complaint  for  the  gross  mental  tension  and harassment.”

4. The National Commission issued notice on 23.08.2013, whereafter the

first  respondent  put  in  appearance  and  filed  its  written  statement.   After

exchange of  pleadings,  the  evidence  was also  completed.   After  about  20

hearings in the matter, by order dated 25.02.2016 the case was fixed for final

arguments.  

5. On  07.10.2016  a  Bench  of  three  Members  of  the  National

Commission delivered judgment in  Ambrish Kumar Shukla and others  v.

Ferrous Infrastructure Pvt.  Ltd.1  while answering reference made to  the

larger Bench of the National Commission.    One of the points which was

referred to the larger Bench of the National Commission was as under:

1 I (2017)CPJ1 (NC)

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      7 “(i) Whether a complaint under Section 12(1)(c) of the Consumer Protection Act filed on behalf of or for the benefit of only some of the numerous consumers hav- ing a common interest or a common grievance is main- tainable or it must necessarily be filed on behalf of or for the benefit of all the consumers having a common interest or a common grievance against same person(s)”

6. After considering the relevant provisions of the Act namely Section

2(1)(b)  defining  the  expression  “complainant”,  Section  12(1)  and  Section

13(6) of the Consumer Protection Act, 1986 (‘The Act’, for short) as well as

the provisions of Order I Rule 8 of Code of Civil Procedure (‘CPC’, for short)

and a decision of this Court in The Chairman, Tamil Nadu Housing Board,

Madras  v.  T.N. Ganapathy2 the larger Bench of the National Commission

held as under:

“……………The primary object behind permitting a class action such a complaint under Section 12(1)(c) of the  Consumer  Protection  Act  being  to  facilitate  the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them therefore will  not  be  maintainable.   If  for  instance,  100  flat buyers/plot  buyers  in  a  project  have  a  common grievance  against  the  builder/Developer  and  a

2 (1990) 1 SCC 608

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      8 complaint  under  Section  12(1)(c)  of  the  Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will  be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project.   This,  in  our  view,  could not  have been  the  Legislative  intent.   The  term  ‘persons  so interested’ and ‘persons having the same interest’ used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider.  The use of the words “all consumers so interested” and “on behalf of or for the benefit of all consumers so interested”, in Section  12(1)(c)(d)  leaves  no  doubt  that  such  a complaint must necessarily be filed on behalf of or for the  benefit  of  all  the  persons  having  a  common grievance, seeking a common relief and  consequently having a community of interest against the same service provider.

7. The aforesaid Consumer Case No.250 of 2013 was thereafter taken up

for  consideration.   The  National  Commission  observed  certain  factual

developments in the matter as under:

“4. A perusal of the record clearly establishes that at the time  of  filing  of  this  Complaint,  no  application  under Section  12(1)(c)  seeking  permission  to  file  joint Complaint  had been filed by the Complainants,  though there  were  19  Complainants  in  this  Complaint. Thereafter, an I.A.No.12680 of 2017 has been filed by the Complainants seeking amendment of the Complaint.  The

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      9 said  application  also  contained  an  Application  under Section 12(1)(c) of the Act.  

5.  Ms. Priyanjali Singh, Advocate for the Complainants at  the  time  of  arguments  in  this  case,  on  instructions, stated  that  the  Complainants  did  not  wish  to  press I.A.No.12680  of  2017  seeking  amendment  of  the Complaint and requested the Complaint should be dealt with as filed earlier.  Hence, I.A.No.12680 of 2017 was dismissed as not pressed.”

8. It  was  observed that  since  there  was no application  under  Section

12(1)(c) of the Act, in view of the decision rendered by larger Bench of the

National Commission in Ambrish Kumar (supra), the complaint in the instant

case was not maintainable.  The National Commission thus by its order dated

13.02.2018 dismissed the aforesaid Consumer Case No.250 of 2013 as not

being  maintainable.   Similarly,  by  order  dated  08.08.2018  the  National

Commission dismissed Complaint Case No.43 of 2014 preferred by 4 buyers

in respect of same project of the first respondent as not being maintainable.   

9. These appeals thus question the correctness of the decisions of the

National  Commission  and  raise  issues  concerning  maintainability  of  the

complaints.  At this stage we may extract the relevant provisions of the Act.

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      10

“Section 2(1) In this Act, unless the context otherwise requires, -  

(a)    … … …

(b)     “complainant” means-

(i)      a consumer; or

(ii)  any  voluntary  consumer  association  registered under the Companies Act,  1956 (1 of 1956) or under any other law for the time being in force; or  

(iii) The Central Government or any State Government; or  

(iv) One  or  more  consumers,  where  there  are  numerous consumers having the same interest;

(v) In case of death of a consumer, his legal heir or repre- sentative; who or which makes a complaint;   Section 12.  Manner in which complaint shall be made –  (1)  A complaint  in  relation  to  any  goods  sold  or delivered  or  agreed  to  be  sold  or  delivered  or  any service provided or agreed to be provided may be filed with a District Forum by-

(a)  The consumer to whom such goods are sold or deliv- ered or agreed to be sold or delivered or such service provided or agreed to be provided;

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      11 (b)Any recognised consumer association whether the con-

sumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be proved is a member of such association or not;

(c) One  or  more  consumers,  where  there  are  numerous consumers having the same interest,  with the permis- sion of the District Forum, on behalf of, or for the bene- fit of, all consumers so interested; or

(d)The Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.

Section 13. Procedure on admission of complaint  

… … …

(6) Where the complainant is a consumer referred to in sub-clause  (iv)  of  clause  (b)  of  sub-section  (1)  of section 2, the provisions of rule 8 of Order I of the First Schedule to the Code of  Civil  procedure,  1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon.”

10. We heard Ms. Priyanjali  Singh, learned Advocate in support of the

appeals and Mr. V.V. Manoharan, learned Advocate for the first respondent.

According to Ms. Singh, the definition of the Complainant as found in Section

2(1)(b) permits even a voluntary consumer association to espouse the cause of

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      12 aggrieved  party/parties.   In  her  submission  the  expression  “one  or  more

consumers, where there are numerous consumers having the same interest”

ought  to  be  given  widest  possible  interpretation  so  as  to  sub-serve  the

underlying objectives of the Act and to make the redressal mechanism easy,

cost  effective and efficacious.   She further  submitted that  in  cases  having

large  number  of  apartment  holders,  if  only  some  of  them  approach  the

consumer  forum,  their  grievance  redressal  ought  not  to  be  forced  to  go

through the mechanics of Section 13(6) of the Act read with the provisions of

Order 1 Rule 8 CPC.  According to her any such insistence would render the

remedy exorbitant as cost required for newspaper publication itself would be

quite prohibitive.  On the other hand, Mr. Manoharan, learned Advocate for

the first  respondent,  submitted  that  the  view taken by the  Commission in

Ambrish Kumar (supra) was correctly and rightly applied by the Commission

in the present case.  He further submitted that such view was the only possible

view, going by the text of the relevant provisions.

11. A closer look at Section 2(1)(b) would show that under sub-clause (i)

it is the consumer himself, as aggrieved person who could be the Complainant

and maintain an action.  Under sub-clause (ii), a voluntary organization or

association may espouse the cause of  such aggrieved person.   Under sub-

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      13 clause (iii) either the central government or the state government may take-up

the matter as complainant.  We are, however, concerned with the expression

appearing in sub-clause (iv) which reads “one or more consumers whether

there  are  numerous  consumers  having  the  same  interest”.   This  very

expression  finds  incorporated  in  sub-clause  (c)  of  Section  12(1)  with  an

addition following said expression, namely “….. with the permission of the

District  Forum,  on  behalf  of,  or  for  the  benefit  of,  all  consumers  so

interested”.

12. Section 12(1) thus in its substantive part says that a complaint may be

filed with the District Forum by any of the four categories as mentioned in

sub-clauses  ‘a’ to  ‘d’.   Since  sub-clause  (c)  contemplates  filing  of  such

complaint, “….. with the permission of the District Forum”, we will have to

see the context and in what manner such permission is required to be taken in

terms of the provisions of the Act.  The answer is available in Section 13(6) of

the Act which  inter alia lays down that where the complaint is referable to

Section 2(1)(b)(iv), the provisions of Rule 8 of Order 1 of the First Schedule

to the CPC, 1908 (Act 5 of 1908) shall apply subject to the modification that

every reference therein to a suit or decree shall be construed as a reference to

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      14 a complaint or the order of the District forum thereon.  The mandate, “shall

apply” is quite significant.

13. The language used and the text in Section 13(6) is clear that wherever

a complaint is filed by a complainant in the category referred to in Section

2(1)(b)(iv),  the  provisions  of  Order  1  Rule  8  CPC  shall  apply with  the

modification that reference to suit or decree shall be construed as reference to

a  complaint  or  order  of  the  District  Forum.    The  expression  “with  the

permission of the District Forum” as appearing in Section 12(1)(c) must be

read along with Section 13(6) which provides the context and effect to said

expression.  In our view Sections 12(1)(c) and 13(6) are not independent but

are to be read together and they form part of the same machinery.

14. It is however summitted that the expression “one or more consumers,

where there are numerous consumers having the same interest” may be given

widest possible interpretation so as to make the redressal mechanism easy,

cost  effective  and  efficacious.   We  are  afraid  we  cannot  accept  such

contention as the language employed in the relevant provisions is absolutely

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      15 clear and does not admit of any other interpretation.  It was laid down by this

Court in Babu Manmohan Das Shah & ors. v. Bishun Das3 as:-

“The ordinary rule of construction is that a provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons, such as, where a literal construction would reduce the provision to absurdity  or  prevent  the  manifest  intention  of  the legislature from being carried out.”

If we accept  the submission of the appellants, the category of persons

referred to in Section 13(6) of the Act, with the aid of requisite permission in

terms of Order I Rule 8 of the CPC  could maintain a class action which may

bind  similarly  placed  consumers  but  those  referred  to  in  Section  12(1)(c)

would be a different category who would not be bound by the provisions of

Order  I  Rule  8  of  CPC.   In  essence  a  separate  category  of  persons  as

consumer/consumers would be entitled to maintain an action under Section

12(1)(c) of the Act.  In our considered view that certainly is not the intent.  If

we accept the submission, we would be going against the express mandate of

the  statute.   All  that  such  interpretation  would  help  achieve  for  some

consumers  is  to  maintain  an  action  in  a  forum  with  higher  pecuniary

jurisdiction where, but for such collective cause of action, the action would

not lie in such forum with higher pecuniary jurisdiction. 3(1967) 1 SCR 836 at page-839

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      16

15.    We, therefore, find that the view taken by the National Commission in

the  case  of  Ambrish  Kumar (supra)  is  consistent  with  the  text  of  the

provisions and is the correct view.  The National Commission, in the present

case, was therefore justified in holding Consumer Case Nos. 250 of 2013 and

43 of 2014 to be not maintainable.

16.    During the course of hearing we had asked Ms. Singh, learned counsel

if the appellants were willing to proceed with the requirements under Section

13(6) of the Act and take appropriate steps as mandated under Order 1 Rule 8

CPC.  She, however, responded that the entire process being prohibitive in

terms of cost, her clients were unwilling to proceed in that behalf.  It must

however  be  noted  that  the  matters  were  pending  with  the  National

Commission for more than three years during which time the pleadings were

exchanged  and  the  evidence  was  filed.   In  the  circumstances,  though  we

uphold the view taken by the National Commission, the proper course would

be to enable the appellants to approach the concerned State Commission.  If

the State Commission is so approached, the matter shall not be proceeded de

novo but from the stage at which it  was before the National  Commission.

             Civil Appeal No.4802 of 2018 etc.                Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors.    

                                      17 That is to say that the matter shall be proceeded with on the strength of same

pleadings and the evidence laid before the National Commission.

17.    With these observations these Civil Appeals stands disposed of.  No  

costs.

………..…..……..……J.                                                                                (Uday Umesh Lalit)

..………….……………J.                                 (R. Subhash Reddy)

New Delhi, December 07, 2018.