Delhi High Court
Dlf Homes Panchkula Pvt Ltd vs Surinder Pal Singh & Ors on 24 July, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 13.07.2026
Date of Decision: 24.07.2026
+ CM(M) 1248/2022, CM APPL. 49631/2022, CM APPL.
20963/2025, CM APPL. 20964/2025 & CM APPL. 29491/2026
DLF HOMES PANCHKULA PVT LTD .....Petitioner
Through: Mr. Pinaki Misra, Sr. Adv. with
Ms. Seema Sundd, Mr. Pravin
Bahadur and Mr. Prabhat
Ranjan, Advs.
versus
SURINDER PAL SINGH & ORS. .....Respondents
Through: Mr. Sudhir Kathpalia, Adv.
Mr. Narender Kumar Sharma
and Ms. Suman Sharma, Advs.
for R-2 & 68. (through VC)
CORAM:
HON'BLE MR. JUSTICE AJAY DIGPAUL
JUDGMENT
%
Factual Matrix
1. The present petition under Article 227 of the Constitution of
India has been filed by DLF Homes Panchkula Private Limited
assailing the order dated 12.10.2022 passed by the learned National
Consumer Disputes Redressal Commission1 in I.A. No. 4407/2022 in
Consumer Complaint No. 1962/2017. By the impugned order, the
learned NCDRC dismissed the application filed by the petitioner
1
Hereinafter “NCDRC”
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questioning the maintainability of the consumer complaint as a
representative complaint under Section 12(1)(c) of the Consumer
Protection Act, 19862 (Presently Section 35(1)(c) of the Consumer
Protection Act, 20193.
2. The dispute arises out of a residential project known as “The
Valley”, situated at Panchkula, Haryana, and developed by the
petitioner. The project was launched in the year 2010 and comprises
1,799 residential units. Upon obtaining the requisite occupation
certificate, possession of the units was offered to the allottees during
2016 and 2017 and that possession of 1,733 units had been taken by
the respective allottees.
3. On 12.07.2017, three allottees instituted Consumer Complaint
No. 1962/2017 before the learned NCDRC against the petitioner. The
complaint was accompanied by I.A. 10286/2017 under Section
12(1)(c) of the 1986 Act read with Order I Rule 8 of the Code of Civil
Procedure, 19084, seeking permission for joint petition as the
Complainants have joint interest and for other allottees of the project
“The Valley”. The prayer sought in this application is reproduced as
under:
“a. Allow the present application in the interest of justice as the
complainants have similar interest in the present proceeding and
seeking relief of similar nature and other allotees of “THE
VALLEY PANCHKULA PROJECT (Haryana)”;
b. Allow publication of the notice of the matter to all the allottees
of the project “THE VALLEY PANCHKULA PROJECT
(Haryana)” and impleading them as parties seeking reliefs of
similar nature before this Hon’ble Commission;”
2
Hereinafter “1986 Act”
3
Hereinafter “2019 Act”
4
Hereinafter “CPC”
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4. The Consumer Complaint No. 1962/2017 alleged, inter alia,
delay in completion of the project and delivery of possession, and
questioned certain demands raised by the petitioner. The complainants
sought, amongst other reliefs, delivery of physical and legal
possession of the respective units in accordance with the apartment
buyers’ agreements, compensation for delayed possession, issuance of
the occupation certificate and other requisite approvals; setting aside
of the demand raised towards increase in the saleable area,
compensation for the alleged deficiency in service, litigation costs;
and consequential reliefs. The application under Section 12(1)(c)
proceeded on the assertion that these grievances and reliefs were
common to the allottees sought to be represented.
5. The petitioner filed its written version to the consumer
complaint as well as a reply opposing the application under Section
12(1)(c). The petitioner disputed the allegations of deficiency in
service and, amongst other objections, questioned the existence of a
common interest amongst all the allottees and the maintainability of
the complaint in a representative capacity.
6. The learned NCDRC vide order dated 23.05.2018 allowed the
application under Section 12(1)(c) and permitted Consumer
Complaint No. 1962/2017 to proceed as a representative complaint.
Consequential directions were issued for publication of notice in terms
of the procedure applicable to representative proceedings. The
relevant portion from the said order passed by the NCDRC is
reproduced as under:
“5. On careful perusal of the complaint, it transpires that
Brig. Beant Parmar and two others have filed the instant complaint
on behalf of themselves as also other similarly placed consumers
who had booked apartments in the subject project having same
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interest and they have also sought relief on behalf of all such
consumers so interested in the outcome of the complaint. Perusal
of the prayer clause of the complaint would show that relief has
also been sought not only on behalf of the complainants who are
party to the complaint but on behalf of other similarly placed
consumers having same interest in the outcome of the complaint.
Therefore, in my view, requirement of Section 12 (1) ( c) of the
Act are fulfilled in this case and this is a fit case for grant of
permission under section 12 (1) ( c) of the Act.
6. Counsel for the opposite party developer has contended
that application is liable to be dismissed as there is no commonality
of interest amongst the complainants and other allottees of the
project. Expanding on the argument, learned counsel has
submitted that bare reading of the complaint would demonstrate
that complainants do not have commonality of interest with all
other consumers who had booked apartments in the subject
project. It is submitted that there are two different sets of allottees
in the project (a) Non Government Employees and (b) Government
Employees, the difference being that government employees as per
the allotment agreement are entitled to additional rebate of 5% on
basic sale price. I do not find merit in this contention. Difference
in price payable by the respective consumers by no stretch of
imagination would make them two different classes of consumers
so far as relief sought in the complaint is concerned. It is further
submitted that large number of allottes in the project have filed
complaints in the State Commission. Therefore, they do not stand
on same footing as that of three complainants. The submissions of
learned counsel for the opposite parties is misconceived because
bare reading of Section 12 (1) ( c) of the Act would show that one
or more consumers can file the consumer complaint subject to
fulfilment of requisite condition on behalf of or for the benefit of
all the consumers so interested. If some of the consumers have
opted to file independent complaints, it would not make other
consumers who are not arrayed as complainants not so interested in
the outcome of the complaint. Similarly, it is contended that about
770 allottees in the project have already taken over possession and
conveyance deeds in favour of 160 allottees out of them have been
executed. If at all it is accepted, then all other similarly placed
allottees would have some interest in the outcome of the
complaint. Therefore, on their behalf class action complaint can be
filed. Thus, I do not find merit in the objection of the opposite
party. In view of the above, I allow the application under section
12 (1) ( c) of the Act and permit the complainants to proceed with
the complaint as a class action.
7. In view of the mandate of Section 13 (6) of the Act, I direct
that the public notice of this complaint be issued under Order 1
Rule 8 C.P.C in the newspapers “Times of India” (English edition)
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and “Navbharat Times” (Hindi Edition). Complainants to take
steps for publication.
.8. Complaint is admitted. Opposite Party to file written
statement within 30 days from today with advance copy to the
complainants.
List on 23.10.2018. Rejoinder, if any, be filed in the
meanwhile.”
7. On 28.05.2018, the learned NCDRC disposed of another
representative complaint pertaining to the same project, being
Consumer Complaint No. 82/2017, titled Surinder Pal Singh and 56
Others v. DLF Homes Panchkula Private Limited & Anr.. While
doing so, the complainants therein were granted liberty to seek
impleadment in Consumer Complaint No. 1962/2017 or to avail such
other remedies as were available to them in law. The operative portion
of the order dated 28.05.2018 in Consumer Complaint No. 82/2017 is
reproduced here for reference:
“10. In view of the discussion above, I am of the opinion that this
is not a fit case for grant of permission under section 12 (1) ( c) of
the Act. Application is accordingly dismissed. As the complainants
have refused to amend the complaint to restrict it only to one class
of the complainants seeking similar relief, the complaint is
dismissed as not maintainable because of misjoinder of parties and
causes of action. It is pertinent to note that permission under
section 12 (1) (c) of the Act has already been granted to the
complainants in Brig. Beant Parmar & Anr. Vs. DLF Homes
Panchkula Pvt. Ltd. in Consumer Complaint No. 1962 of 2017
relating to the same project. Therefore, it is clarified that
complainants in this case shall be at liberty to get impleaded in
Consumer Complaint No. 1962 of 2017, if they so desire. or avail
of the legal remedy available under law.”
8. Thereafter in the proceedings of Complaint No. 1962/2017, the
petitioner filed Review Application No. 169/2018 on 05.06.2018,
seeking review of the order dated 23.05.2018. The review application
was dismissed by the learned NCDRC on 08.06.2018, upon finding no
error apparent on the face of the record.
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9. The petitioner also challenged the order
dated 23.05.2018 before this Court in CM(M) 683/2018. The Court
vide order dated 16.07.2018, stayed the operation of the order
dated 23.05.2018. The relevant portion of the order passed by this
Court is reproduced as under:
“The matter is indicated to be listed for 24.09.2018 and
taken up on CM APPL. 27639/2018, an application filed on behalf
of the petitioner seeking to bring on record subsequent
developments apart from inter alia seeking a stay of the
proceedings pending before the National Consumer Disputes
Redressal Commission in CC No.1962/2017 submitting to the
effect that the Review Petition No.169/18 filed by the petitioner
seeking a review of the order dated 23.05.2018 pursuant to
proceedings dated 31.05.2018 of this Court, has already been
dismissed.
Notice of the petition and of CM APPL. 27639/2018 be
issued to the respondent nos.2 to 4 on taking of steps by the
petitioner, process returnable on 24.09.2018.
In the meantime, the operation of the order dated
23.05.2018 of the National Consumer Disputes Redressal
Commission is stayed.
Copy of the order be given Dasti, as prayed.”
10. The complainants thereafter approached the Hon’ble Supreme
Court against the order dated 16.07.2018 through SLP (Civil) Diary
No. 4883/2019. The Hon’ble Supreme Court vide order
dated 15.02.2019, vacated the interim stay granted by this Court. The
relevant portion of the order passed by the Supreme Court is
reproduced for reference:
“In the present matter, by order dated 23.05.2018, the
National Consumer Disputes Redressal Commission accepted the
submission of the present petitioners and granted them permission
to proceed with the complaint as a class action and also directed
that public notice be issued under Order 1 Rule 8 of the Code of
Civil Procedure, 1908, in the newspapers “Times of India”
(English Edition) and “Navbharat Times” (Hindi Edition). The
matter was directed to be listed on 23.10.2018.
Respondent no.1 thereafter carried the matter by way of a
petition under Article 227 of the Constitution of India in the High
Court of Delhi at New Delhi. The High Court vide its order dated
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16.07.2018 stayed the operation of the order passed by the National
Commission, which order is presently under challenge.
The submission of the petitioners is that though the order
was passed on 16.07.2018, a copy of the order was served on them
sometime on 24.08.2018 by which time the advertisements were
already published in the newspaper.
Issue notice.
Pending further consideration, we stay operation of the
order dated 16.07.2018 passed by the High Court, as a result of
which the order dated 23.05.2018 passed by the National
Commission shall become fully operative.
We direct the parties to appear before the National
Commission on 19.02.2019 i.e. the date on which the matter is
listed.
Let further proceedings be taken to the logical conclusion
by the National Commission. In case, for any reason, the present
petitioners wish to withdraw from the proceedings, appropriate
number of applicant(s) can be substituted in their place and the
matter shall be proceeded on merits. Considering the fact situation
in the present matter, we request the National Commission to
conclude the proceedings as expeditiously as possible.”
11. During the pendency of Consumer Complaint No. 1962/2017,
the three original complainants arrived at settlements with the
petitioner. By an order dated 30.05.2019, their names were deleted
from the array of parties.
12. By the same order dated 30.05.2019, the learned NCDRC
allowed several applications filed by other allottees seeking
impleadment in the Consumer Complaint No. 1962/2017. The
impleadment was made subject to the applicants satisfying the certain
conditions and the substituted complainants were also directed to file
an amended memo of parties. The relevant portion of the order is
reproduced as under:
“The applicants claim to be allottees in the project to which this
complaint pertains. They are impleaded as parties to this complaint
provided that (i) they are interested in all the reliefs sought in this
complaint (ii) they have no other grievance against the OP (iii)
their allotments have not been cancelled and (iv) they have already
not approached either this Commission or any other Court/Forum
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for the redressal of their grievances. The applications stand
disposed of.”
13. CM(M) 683/2018 was thereafter dismissed as withdrawn by this
Court on 13.08.2019. Consequent thereto, the proceedings before the
Hon’ble Supreme Court arising from the interim order passed in that
petition were also disposed of as having become infructuous.
14. On 08.11.2019, further applications for impleadment were
allowed by the learned NCDRC in terms of the conditions contained
in the order dated 30.05.2019.
15. The proceedings thereafter continued before the learned
NCDRC and, on 19.05.2022, the petitioner filed I.A. No. 4407/2022
questioning the maintainability of Consumer Complaint No.
1962/2017 in the form in which it was then being prosecuted. In
support of the application, the petitioner relied upon the decision of
the Hon’ble Supreme Court in Brigade Enterprises Limited v. Anil
Kumar Virmani & Ors.5, wherein it was held that sameness of interest
constitutes the sine qua non for maintaining a representative complaint
under Section 12(1)(c) of the 1986 Act. Reliance was also placed upon
the decision of this Court in Lucina Land Development Ltd. v. Union
of India & Ors.6, which reiterated the necessity of establishing
sameness of interest amongst the consumers sought to be represented.
On this basis, the petitioner contended that the subsequently
impleaded complainants did not constitute a homogeneous class, that
their respective factual positions were materially different, and that the
complaint, in light of the aforesaid decisions, was not maintainable
5
(2022) 4 SCC 138
6
2022 SCC OnLine Del 1274
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under Section 12(1)(c) and was liable to be dismissed at the threshold.
The prayer sought in this application is reproduced as under:
“i. to hear and determine the admissibility and maintainability of
the present Complaint before proceeding further with the matter;
ii. to hold that there is no sameness of interest in the class sought to
be represented, or even amongst the 70 complainants arrayed as
parties to the present complaint;
iii. to hold that the present complaint cannot be allowed as a class
action complaint under section 12(1)(c), on account of lack of
sameness of interest;
iv. to hold that the pecuniary value of individual complainants or
even the average value of the apartment is below the pecuniary
jurisdiction of this Hon’ble Commission;
v. to dismiss the present complaint for lack of pecuniary
jurisdiction; and/ or
vi. pass any such other order/orders as this Hon’ble Commission
may deem fit and proper in the facts and circumstances of the
present case.”
16. In particular, the petitioner sought to distinguish between
allottees who had already taken possession, subsequent purchasers,
persons in whose cases possession had been offered without delay,
persons who had entered into settlements with the petitioner, persons
who had accepted payments or compensation, persons who had
executed conveyance deeds, persons who had sold or let out their units
and persons who had already pursued proceedings before other
consumer forums. On that basis, it was contended that the substituted
complainants neither possessed the same interest nor remained
interested in all the reliefs originally sought in the complaint.
17. The learned NCDRC on 23.05.2022, directed the complainants
to file a reply to I.A. No. 4407/2022. They were also directed to place
on record a chart containing complainant-wise particulars with
reference to the objections raised by the petitioner. After the reply was
filed, the petitioner was granted an opportunity, by an order
dated 06.07.2022, to file a rejoinder.
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18. During the subsequent hearing, the complainants stated that
they did not propose to press all the reliefs originally sought in
Consumer Complaint No. 1962/2017 and that they would confine their
claims to the issue of interest on delayed possession and excess
saleable area. The said statement was recorded by the learned NCDRC
in its order dated 27.07.2022.
19. Pursuant to the earlier directions of the learned NCDRC, the
complainants filed a chart dated 13.08.2022, setting out the particulars
and status of the respective complainants.
20. Arguments on I.A. No. 4407/2022 were heard by the learned
NCDRC and vide impugned order dated 12.10.2022, the learned
NCDRC dismissed I.A. No. 4407/2022. The learned NCDRC
recorded that the three original complainants had withdrawn from the
proceedings after settling their disputes and that several other allottees
had thereafter been impleaded. It further recorded that, although 85
persons had been impleaded at one stage, 71 complainants remained
before it.
21. The learned NCDRC also recorded that possession had been
delivered to and accepted by the complainants then before it. It,
however, held that the surviving claims for compensation on account
of delayed possession and in relation to the increased saleable area
disclosed sufficient sameness of interest to permit the complaint to
continue as a representative proceeding.
22. In relation to persons who had transferred their units after
seeking impleadment, the learned NCDRC observed that their rights
were required to be considered with reference to the date on which
they had joined the proceedings and that a subsequent transfer would
not, by itself, defeat the claim. As regards persons who had entered
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into settlements, the learned NCDRC observed that such persons
could not reopen disputes which had already been settled.
23. The learned NCDRC further observed that, even if some of the
complainants did not fall within the definition of “consumer”, they
could not be denied the benefit of a judgment passed in a
representative complaint. Having rejected the petitioner’s objection to
maintainability, the learned NCDRC listed the consumer complaint
for final hearing.
24. Aggrieved by the order dated 12.10.2022, the petitioner
instituted the present petition. When the petition was taken up
on 20.12.2022, Mr. Pinaki Misra, learned Senior Counsel for the
petitioner submitted that there was no commonality or sameness of
relief amongst the respondents; that possession of the units had been
received by the respondents; that the surviving claims would require
individual examination; and that the reliefs originally claimed could
not have been given up merely on the basis of a statement made by
counsel in the representative proceedings.
25. This Court also noticed the observation of the learned NCDRC
that even persons who did not fall within the definition of “consumer”
could derive the benefit of a judgment passed in the representative
complaint. A prima facie view was expressed that the said
observations required consideration and this Court requested the
learned NCDRC to defer the final hearing to a date beyond the next
date fixed by this Court.
26. The order dated 20.12.2022 was challenged by some of the
respondents before the Hon’ble Supreme Court in SLP(C) No.
8368/2023. On 04.05.2023, the Hon’ble Supreme Court issued notice
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and stayed the operation of the order dated 20.12.2022 until further
orders.
27. The SLP was thereafter taken up on 07.11.2023. The Supreme
Court observed that the proceedings before it arose out of an
interlocutory order and disposed of the SLP with a request to this
Court to decide the present petition expeditiously, preferably within
six months. The parties were directed not to seek adjournments. The
Hon’ble Supreme Court further requested the learned NCDRC not to
proceed further with Consumer Complaint No. 1962/2017 until the
present petition was decided by this Court.
28. It is in the aforesaid background that the challenge to the order
dated 12.10.2022 passed by the learned NCDRC falls for
consideration in the present petition.
Submissions on behalf of the petitioner
29. Mr. Pinaki Misra, learned Senior Counsel submits that the very
foundation of a representative complaint under Section 12(1)(c) of the
1986 Act is the existence of numerous consumers having the same
interest. The expression “same interest”, according to him, is not a
matter of form, nor can it be inferred merely because all the persons
concerned had purchased units in the same project or seek some form
of monetary compensation from the same developer. The requirement
is substantive and mandates that the consumers represented in the
proceedings must constitute an identifiable and homogeneous class
having the same grievance arising from the same deficiency in service.
30. Learned Senior Counsel points out that, though 85 allottees had
initially been impleaded in Consumer Complaint No. 1962/2017, only
49 of them presently remain, the disputes of the others having been
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settled during the pendency of the proceedings. He submits that the
progressive alteration in the composition of the complainant body is
significant, as the complaint is no longer being prosecuted by the three
original complainants who had framed its pleadings and reliefs. The
allottees subsequently brought on record have not amended the
complaint to disclose how their respective grievances are identical or
how they remain interested in all the reliefs on the basis of which
permission under Section 12(1)(c) was originally granted.
31. Mr. Misra submits that the surviving complainants fall within
several distinct categories and cannot be treated as members of one
homogeneous class. Some allottees received possession after varying
periods of delay and continue to retain their units; some accepted
delay compensation offered by the petitioner; some are subsequent
purchasers who acquired their units after possession had already been
offered to the original allottees; some have executed conveyance
deeds; some have sold or otherwise transferred their units; while
others had either entered into settlements or pursued proceedings
before other forums. Each of these circumstances, according to him,
bears directly upon the existence and extent of the individual allottee’s
grievance and entitlement, if any, to compensation. The determination
of the claim would, therefore, necessarily require an allottee-wise
examination of the date of allotment, contractual terms, date of offer
and acceptance of possession, period of delay, payments made,
compensation accepted, subsequent transfer and prior settlement or
adjudication.
32. It is submitted that a common circumstance capable of giving
rise to similar causes of action does not, by itself, establish sameness
of interest. The mere fact that several allottees may allege delay in
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delivery of possession cannot place them in the same class where the
periods of delay differ materially and their subsequent conduct and
legal position are distinct. Equally, the circumstance that the surviving
complainants may ultimately seek monetary compensation cannot cure
the absence of identity in the underlying grievances. According to
learned Senior Counsel, the learned NCDRC has effectively treated a
similarity in the eventual relief as equivalent to sameness of interest,
which is contrary to the statutory scheme.
33. In this regard, learned Senior Counsel places considerable
reliance on the decision of the Hon’ble Supreme Court in Brigade
Enterprises (Supra). He submits that the Supreme Court has drawn a
clear distinction between a complaint filed jointly by a few consumers
for redressal of their own grievances and a complaint filed in a
representative capacity on behalf of numerous consumers. It was held
that “sameness of cause of action” is not synonymous with “sameness
of interest” and that the latter must be borne out from the pleadings
and the reliefs sought in the consumer complaint.
34. Learned Senior Counsel further submits that Brigade
Enterprises recognises that, where a few consumers desire to pursue
their own grievances jointly without representing the entire body of
consumers, the appropriate course is to institute a joint complaint
under Section 12(1)(a) of the 1986 Act (Presently Section 35(1)(a) of
the 2019 Act), rather than invoke Section 12(1)(c). Thus, even if the
respondents presently before this Court desire to pursue their
individual claims together, they may do so through a properly
constituted joint complaint confined to their own grievances. They
cannot, however, continue to prosecute the present complaint as a
representative action and bind persons whose grievances and factual
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circumstances are not the same. The Supreme Court had itself, upon
finding the representative character of the complaint before it
unsustainable, directed that it be treated as a joint complaint confined
to the actual complainants, while permitting other persons to seek
impleadment only if their grievance was limited to the grievance
projected in the complaint.
35. Reliance is also placed on Lucina Land Development
Ltd. (Supra), wherein this Court applied the principles enunciated in
Brigade Enterprises. Mr. Misra submits that Lucina Land
Development holds that sameness of interest must be manifest from
the pleadings themselves, so that the consumer forum is able to
identify the consumers whose cause is sought to be represented and
ascertain that the grievance and the alleged deficiency in service are
identical qua each of them. A common interest in the eventual
outcome of the complaint, or an omnibus prayer for a similar relief,
would not satisfy the statutory requirement. The sameness must relate
to the underlying grievance and the deficiency alleged against the
service provider.
36. Applying the aforesaid principles to the present case, learned
Senior Counsel submits that the pleadings framed by the three original
complainants cannot establish sameness of interest amongst the 49
allottees who now remain. The original complainants had not taken
possession and had, inter alia, sought delivery of possession, whereas
the subsequently impleaded allottees occupy materially different
positions. The attempt made before the learned NCDRC on
27.07.2022 to confine the complaint to delayed-possession
compensation and the demand towards increased saleable area could
not retrospectively create a homogeneous class. On the contrary, the
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abandonment of the other reliefs demonstrates that the subsequently
impleaded complainants were not interested in all the reliefs originally
claimed and did not satisfy the first condition imposed by the learned
NCDRC in its order dated 30.05.2019.
37. Mr. Misra also relies upon the decisions of this Court in DLF
Homes Rajapura Pvt. Ltd. v. Union of India & Anr.7, DLF Homes
Rajapura Pvt. Ltd. v. Union of India & Ors.8 and DLF Homes
Rajapura Pvt. Ltd. v. Amardeep Singh Tiwana & Ors.9. It is
submitted that these decisions consistently apply the principles
enunciated in Brigade Enterprises and Lucina Land Development
and recognise that, where the statutory requirement of sameness of
interest is not met, the complaint cannot be permitted to continue in its
representative form. At the same time, the consumers remain at liberty
to institute a properly constituted class action, joint complaint or
individual proceedings, as may be permissible in law.
38. Learned Senior Counsel assails, in particular, the reasoning
contained in paragraphs 6, 7 and 8 of the impugned order. He submits
that, despite noticing both Brigade Enterprises and Lucina Land
Development, the learned NCDRC failed to apply the test laid down
therein. Instead of examining whether the pleadings disclosed an
identical grievance and deficiency in service qua each surviving
complainant, the learned NCDRC proceeded on the premise that the
availability of a claim for compensation to all the complainants was
sufficient to establish sameness of interest. Such an approach,
according to him, reverses the statutory test by treating the relief as the
7
CM(M) 100/2018
8
CM(M) 1333/2019
9
CM(M) 572/2022
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source of sameness, whereas the sameness must exist in the
underlying interest and grievance.
39. Mr. Misra further submits that the learned NCDRC failed to
examine whether the subsequently impleaded allottees complied with
the four express conditions subject to which impleadment had been
permitted on 30.05.2019. Persons who had already settled their
disputes, approached another court or forum, or were not interested in
all the reliefs claimed could not have been allowed to continue as
members of the representative class. The objections raised by the
petitioner in I.A. No. 4407/2022 were supported by complainant-wise
particulars identifying the separate categories of allottees; yet, the
impugned order contains no meaningful consideration of the effect of
these distinctions.
40. Learned Senior Counsel lastly takes exception to the
observation in the impugned order that, even if some of the
complainants did not fall within the definition of “consumer”, they
could not be denied the benefit of a judgment passed in a class-action
complaint. He submits that the said observation is fundamentally
contrary to the jurisdictional scheme of the 1986 Act. The jurisdiction
of a consumer forum can be invoked only by a person who answers
the statutory description of a consumer in respect of a consumer
dispute. The procedure of a representative complaint cannot confer
substantive consumer status upon a person who does not otherwise
possess it, nor can a relief which is unavailable directly be obtained
indirectly through the medium of a class action.
41. On the aforesaid premises, Mr. Misra submits that the
impugned order suffers from a patent failure to apply the jurisdictional
pre-requisites contained in Section 12(1)(c) of the 1986 Act. He
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accordingly prays that the order dated 12.10.2022 be set aside and that
Consumer Complaint No. 1962/2017 be held incapable of proceeding
in its existing representative form, while leaving the surviving
complainants at liberty to pursue such joint, individual or properly
constituted representative remedy as may be available to them in
accordance with law.
Submissions on behalf of the respondents
42. Mr. Sudhir Kathpalia, learned Counsel for the respondents,
submits that the principal question sought to be raised by the
petitioner, which is whether Consumer Complaint No. 1962/2017
could proceed as a representative complaint under Section 12(1)(c) of
the 1986 Act, had already attained finality in the earlier round of
proceedings. According to him, it is not open to the petitioner to
reagitate the same issue at the stage of final adjudication of the
consumer complaint by characterising the subsequent changes in the
array of complainants as a fresh question of maintainability.
43. Learned Counsel refers, in this regard, to the order dated
23.05.2018, whereby the learned NCDRC had allowed the application
under Section 12(1)(c) and permitted the complaint to proceed as a
representative action. The said order was challenged by the petitioner
before this Court in CM(M) 683/2018, in which its operation was
stayed on 16.07.2018. The respondents thereafter approached the
Supreme Court in SLP(C) Diary No. 4883/2019, whereby the
Supreme Court vide order dated 15.02.2019 vacated the stay granted
by this Court and directed that, if the persons then prosecuting the
complaint desired to withdraw, an appropriate number of applicants
could be substituted in their place and the matter would thereafter
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proceed on merits. Mr. Kathpalia submits that the necessary effect of
the said order was to permit the consumer complaint to continue in its
representative character notwithstanding the subsequent withdrawal of
the original complainants. The public-notice and representative
process already directed by the learned NCDRC consequently stood
revived, and substitution of other interested allottees was expressly
contemplated by the Hon’ble Supreme Court.
44. Learned counsel points out that the petitioner thereafter
withdrew CM(M) 683/2018 on 13.08.2019, whereupon the
proceedings before the Supreme Court were also disposed of as
having become infructuous. He contends that, once the challenge to
the order dated 23.05.2018 was withdrawn and the Supreme Court’s
order permitting substitution and continuation of the proceedings
remained undisturbed, the representative character of the complaint
could not subsequently be questioned through I.A. No. 4407/2022.
The petitioner, according to him, cannot indirectly reopen an issue
which it had elected not to pursue in the earlier proceedings.
45. Reliance is placed upon the principles of res judicata,
constructive res judicata and issue estoppel. Learned Counsel submits
that an issue finally determined at an earlier stage of the same
proceedings cannot ordinarily be reopened at a later stage. In support
thereof, he relies upon Satyadhyan Ghosal v. Deorajin Debi10,
Daryao v. State of U.P.11, State of Uttar Pradesh v. Nawab Hussain12
and Forward Construction Co. v. Prabhat Mandal (Regd.),
Andheri13. The foundational requirement of sameness of interest, it is
10
AIR 1960 SC 941
11
AIR 1961 SC 1457
12
(1977) 2 SCC 806
13
(1986) 1 SCC 100
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argued, was adjudicated when permission under Section 12(1)(c) was
granted, and the petitioner cannot seek a second determination merely
because the proceedings have since progressed and the circumstances
of some members have changed.
46. Learned Counsel further relies upon Kunhayammed & Ors. v.
State of Kerala & Anr.14. He submits that the precise effect of the
order dated 15.02.2019 must be understood in the light of its operative
directions and the nature of jurisdiction exercised by the Supreme
Court. According to him, if the said order is understood as an
appellate or merits determination, the order of the learned NCDRC
would stand merged in the order of the Supreme Court and could not
retain an independent existence susceptible to indirect reconsideration
under Article 227. In any event, even apart from the doctrine of
merger, judicial discipline precludes any court or tribunal from
adopting a position contrary to the express direction of the Supreme
Court in the same litigation.
47. Mr. Kathpalia further submits that the subsequent impleadment
of the present respondents was undertaken in pursuance of the liberty
recognised by the Supreme Court and under orders passed by the
learned NCDRC. The impleadment orders were not challenged by the
petitioner at the relevant time. The petitioner participated in the
proceedings, filed its additional written version and evidence and
permitted the matter to progress substantially. It was only when the
consumer complaint had reached the stage of final hearing that the
petitioner again raised the issue of maintainability by filing I.A. No.
4407/2022 on 19.05.2022.
14
(2000) 6 SCC 359
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48. Learned Counsel submits that the petitioner’s reliance upon
Brigade Enterprises and Lucina Land Development Ltd. is
misplaced. According to him, those decisions arose at the stage when
permission under Section 12(1)(c) was being granted or examined and
did not concern a case where permission had already been granted,
public notice had been issued, the challenge had travelled to the
Supreme Court, additional complainants had been impleaded and the
representative proceedings had continued for several years.
49. It is submitted that Brigade Enterprises treats sameness of
interest as a prerequisite to be examined at the stage of granting
permission under Section 12(1)(c). It does not create a recurring right
in favour of the service provider to reopen the permission order at
every subsequent stage on account of individual developments relating
to some members of the represented class. The present issue,
therefore, is not whether permission initially should have been
granted, but whether a threshold determination which has attained
finality between the parties can be reopened when the complaint is
ripe for final adjudication.
50. Mr. Kathpalia submits that permitting such reopening would
have consequences extending beyond the present dispute. Every order
granting permission under Section 12(1)(c) would remain provisional
and susceptible to repeated challenges whenever some members take
possession, transfer their units or settle their claims. This would
deprive representative proceedings of procedural stability and enable a
developer, after participating in the proceedings for several years, to
seek dismantling of the representative action at the stage of final
arguments. Such an approach, according to him, would frustrate the
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object of Section 12(1)(c) and Order I Rule 8 of the CPC, which is to
facilitate collective adjudication and avoid multiplicity of proceedings.
51. Learned counsel submits that the impugned order dated
12.10.2022 cannot be viewed in isolation from this procedural history.
The learned NCDRC was conscious of the withdrawal of the original
complainants, the substitution of the subsequently impleaded allottees,
the earlier proceedings before this Court and the Supreme Court, and
the reliefs which remained to be adjudicated. After considering the
objections of the petitioner and the complainant-wise material placed
before it, the learned NCDRC concluded that the surviving claims
relating to delayed-possession compensation and increased saleable
area disclosed sufficient commonality to permit the complaint to
continue.
52. According to learned Counsel, the common foundational
grievance remains the delay in delivery of possession by the same
developer and the consequential claim for compensation. Differences
concerning unit particulars, dates, amounts or subsequent events do
not, by themselves, extinguish that common interest. Subsequent
delivery of possession cannot retrospectively extinguish a claim which
had already accrued for the preceding period of delay. Similarly, a
transfer or settlement may affect the ultimate entitlement of the
particular complainant concerned, but does not necessarily destroy the
representative proceeding qua the remaining members. A person who
has settled may be disentitled to any further recovery, without the
settlement extinguishing the surviving claims of those who continue to
prosecute the complaint.
53. Mr. Kathpalia also places reliance upon the order dated
23.03.2022 passed by the learned NCDRC. The said order records that
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the Supreme Court, by its order dated 15.02.2019, had directed the
learned NCDRC to conclude the proceedings as expeditiously as
possible. It further records that, despite a last opportunity having been
granted on 14.02.2022, the petitioner had not filed its evidence. The
learned NCDRC accordingly imposed costs of ₹10,000/- upon the
petitioner, granted it a further period of two weeks to file evidence and
listed the consumer complaint for final hearing on 28.04.2022.
54. According to learned Counsel, the aforesaid order demonstrates
that the consumer complaint had been delayed on account of the
petitioner’s repeated failure to complete its evidence and its successive
challenges to the proceedings. He submits that I.A. No. 4407/2022
was filed only after the parties had completed their pleadings and
evidence and the complaint was ripe for final hearing. The filing of the
said application, followed by the present petition upon its dismissal, is
therefore characterised as another attempt to postpone adjudication of
the respondents’ claims on merits.
55. Learned Counsel argues that the respondents have been
awaiting adjudication of a complaint instituted as far back as
12.07.2017. The petitioner cannot be permitted, after participating in
the representative proceedings for several years and withdrawing its
earlier challenge, to turn the clock back and require the respondents to
institute fresh proceedings under Section 12(1)(a) of the 1986 Act.
Such a course would defeat the earlier orders of the Supreme Court
and render the proceedings undertaken before the learned NCDRC
over several years worthless.
56. Mr. Kathpalia submits that the petitioner’s reliance on the
subsequent settlements entered into by some of the complainants does
not affect the maintainability of the complaint qua the remaining
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respondents. A person who has settled may not be entitled to obtain
any further relief, as was also recognised in the impugned order.
However, the settlement of some members of the class cannot
extinguish the common claims of those who continue to prosecute the
proceedings. The reduction in the number of complainants from those
originally impleaded to the persons presently remaining is, therefore,
stated to have no bearing upon the representative character of the
complaint.
57. It is lastly submitted that the petitioner is inviting this Court to
undertake an appellate reconsideration of the procedural and factual
conclusions reached by the learned NCDRC. The supervisory
jurisdiction under Article 227, according to learned counsel, cannot be
invoked to reopen an issue which has already travelled to the Hon’ble
Supreme Court and in respect of which the petitioner had withdrawn
its earlier challenge. In the absence of any jurisdictional error in the
impugned order, Mr. Kathpalia accordingly prays that the present
petition be dismissed and that the learned NCDRC be permitted to
conclude Consumer Complaint No. 1962/2017 on merits without any
further delay.
Analysis
58. Before entering into the rival contentions on merits, it is
necessary to delineate the scope of interference under Article 227 of
the Constitution. The jurisdiction conferred by Article 227 is
supervisory and not appellate in character. Its object is to ensure that
courts and tribunals subordinate to the High Court remain within the
bounds of their authority and discharge their functions in the manner
required by law. This Court would, therefore, not reappreciate the
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material on record, substitute its own conclusions for those of the
learned NCDRC, or interfere merely because another view may also
be possible. The power is required to be exercised sparingly,
principally where the authority below has acted without or in excess of
jurisdiction, failed to exercise jurisdiction vested in it, disregarded a
mandatory statutory prescription, or rendered a finding so perverse or
manifestly unreasonable that its continuance would occasion grave
injustice. Among the decisions of the Hon’ble Supreme Court
delineating the scope of interference under Article 227 are Shalini
Shyam Shetty v. Rajendra Shankar Patil15 and Garment Craft v.
Prakash Chand Goel16.
59. Consequently, the enquiry in the present petition is not whether
this Court would, on an independent appraisal, have arrived at the
same conclusion as the learned NCDRC. The limited question is
whether, while permitting the complaint to continue under Section
12(1)(c) of the 1986 Act, the learned NCDRC applied the
jurisdictional requirements prescribed by the statute and the binding
law governing representative consumer proceedings. If the impugned
order proceeds upon an erroneous jurisdictional test, overlooks
material statutory conditions, or exercises the jurisdiction vested in the
learned NCDRC in a manner impermissible in law, such an error
would fall within the supervisory ambit of Article 227.
60. With this brief preface, and having heard learned counsel for
the parties and perused the record, this Court may now advert to the
issues arising for consideration in the present petition.
15
(2010) 8 SCC 329
16
(2022) 4 SCC 181
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61. The first and the most important objection which falls for
consideration is whether the maintainability of Consumer Complaint
No. 1962/2017 as a representative complaint stood finally concluded
by the orders passed in the earlier round of proceedings. The
respondents contend that, once the Supreme Court vide its order dated
15.02.2019, vacated the stay granted by this Court against the order
dated 23.05.2018, permitted substitution of appropriate applicants in
the event of withdrawal by the original complainants and directed the
matter to proceed on merits, it was no longer open to the petitioner to
question the representative character of the complaint. This Court is
unable to accept the objection.
62. Mr. Kathpalia’s reliance upon the doctrine of merger also does
not advance the case of the respondents. The Hon’ble Supreme
Court’s order dated 15.02.2019 was passed at the stage of
consideration of the special leave petition and does not record either
the grant of leave or the conversion of the proceedings into a civil
appeal. As explained in Kunhayammed (Supra), the doctrine of
merger is attracted when the appellate jurisdiction of the Supreme
Court is invoked upon grant of leave and the appeal is thereafter
decided. An order passed at the stage of special leave does not, by
itself, result in the merger of the order under challenge. The express
directions contained in the order dated 15.02.2019 are undoubtedly
binding and have to be given full effect. However, their binding effect
extends to what was actually directed and decided, i.e. vacation of the
interim stay, issuance of public notice, substitution of an appropriate
number of applicants upon withdrawal of the original complainants,
and continuation of the complaint on merits. The said order did not
adjudicate whether every person subsequently impleaded would
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satisfy the requirement of sameness of interest, nor did it foreclose
examination of the continued maintainability of the complaint upon a
material alteration in the composition of the represented class.
63. The Hon’ble Supreme Court vide order dated 15.02.2019
employed the express language and the direction was that an
“appropriate number” of applicants could be substituted and that the
matter would thereafter proceed on merits. The use of the expression
“appropriate” necessarily contemplated that the persons seeking
substitution would have to be eligible to prosecute the representative
complaint in accordance with law. Indeed, the learned NCDRC itself
did not regard the Supreme Court’s order as authorising unconditional
impleadment. By the subsequent NCDRC order dated 30.05.2019,
impleadment was permitted subject to four express conditions: “(i)
they are interested in all the reliefs sought in this complaint (ii) they
have no other grievance against the OP (iii) their allotments have not
been cancelled and (iv) they have already not approached either this
Commission or any other Court/Forum for the redressal of their
grievances.” Thus, even the learned NCDRC proceeded on the basis
that the entitlement of the substituted complainants to remain in the
representative proceedings required independent scrutiny.
64. The plea of finality is liable to be rejected on the grounds that,
the I.A. No. 4407/2022 was not a disguised attempt to reopen the
order dated 23.05.2018 on the same factual foundation. When
permission under Section 12(1)(c) was originally granted, the
complaint was being prosecuted by the three original complainants on
the basis of the pleadings and reliefs framed by them. Thereafter, the
original complainants settled their disputes and withdrew from the
proceedings. This Court would like to emphasise that numerous
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other allottees were subsequently impleaded, and their factual
circumstances revealed materially distinct categories, including
persons who had taken possession after varying periods of delay,
subsequent purchasers, persons who had accepted compensation,
persons who had executed conveyance deeds, persons who had
transferred their units, and persons who had pursued or settled
their claims before other forums. These circumstances arose, or
became identifiable, only after the earlier round of proceedings.
65. The question raised in I.A. No. 4407/2022 was, therefore, not
whether the three original complainants could have been permitted to
institute the complaint in a representative capacity on the material
available on 23.05.2018. The question was whether the complaint,
after its complete reconstitution and in the form in which it was being
prosecuted in the year 2022, continued to satisfy the jurisdictional
conditions of Section 12(1)(c). A representative proceeding must
continue to fulfil the conditions upon which its representative
character depends. An initial order granting permission cannot
immunise the proceedings from examination where subsequent
developments have fundamentally altered the class which is
prosecuting the complaint.
66. It is true that the doctrine of finality prevents a party from
avoiding an earlier adverse adjudication merely by reformulating the
same challenge under a different procedural provision. Equally,
however, that principle applies where the matter was earlier directly
and substantially in issue and was heard and finally decided. It does
not bar consideration of a later application founded upon genuinely
subsequent facts which materially alter the subject matter of the
enquiry. The present application, in this Court’s view, falls in the
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latter category as it was neither based upon the same factual position
nor directed against an issue previously adjudicated on merits.
67. This Court is conscious that an order granting permission under
Section 12(1)(c) of the 1986 Act cannot be treated as perpetually
provisional or reopened merely because some individual development
occurs during the pendency of the complaint. Procedural stability is
necessary in representative proceedings, and the mere settlement,
transfer or change in the circumstances of an isolated member would
not ordinarily justify reconsideration of the permission already
granted. At the same time, the doctrine of finality cannot be invoked
to perpetuate a proceeding which, owing to subsequent material
developments, is alleged to have ceased to satisfy the statutory
requirements governing its maintainability. The respondents’
contention that the representative character of the complaint under
Section 12(1)(c) had attained finality must, therefore, be considered in
the context of the nature and extent of the subsequent changes. The
present case does not involve a routine or isolated development. The
three persons who instituted the complaint and framed its pleadings
and reliefs ceased to prosecute it, whereafter a substantially different
body of allottees was brought on record subject to express conditions.
The objection raised in I.A. No. 4407/2022 was not directed against
the correctness of the initial permission in the abstract, but concerned
whether the complaint, after such reconstitution, continued to remain
within the statutory limits of Section 12(1)(c). Examination of that
question does not render every permission order provisional. It merely
recognises that finality cannot operate as a shield against the
examination of an alleged jurisdictional or statutory defect arising
from material subsequent events, and that a representative proceeding
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cannot continue in a form substantially different from the one for
which permission was granted without the forum satisfying itself that
its statutory foundation continues to subsist.
68. There was also an intervening judgment of the Hon’ble
Supreme Court in Brigade Enterprises. The decision clarified that
sameness of cause of action is not equivalent to sameness of interest
and that purchasers occupying different positions, such as those who
accepted compensation, accepted it under protest or declined it, or
suffered materially different periods of delay cannot automatically be
treated as one homogeneous class. The judgment was delivered while
Consumer Complaint No. 1962/2017 was still pending and before I.A.
No. 4407/2022 was decided. It was, therefore, incumbent upon the
learned NCDRC to apply the law so declared while examining
whether the reconstituted complaint continued to meet the
requirements of Section 12(1)(c).
69. Though Brigade Enterprises was rendered while examining the
grant of permission under Section 12(1)(c), the decision explains the
substantive content of the expression “same interest” occurring in the
said provision. The relevance of that principle to the present case does
not arise from any proposition in Brigade Enterprises permitting
every order granting permission to be reopened at a subsequent stage.
However in the present set of facts, it arises because I.A. No.
4407/2022 raised the distinct question that whether the complaint,
after a material alteration in its composition, continued to satisfy the
statutory requirements of Section 12(1)(c), an issue which had not
been examined in the earlier proceedings before the learned NCDRC.
70. This Court emphasises once again that Brigade Enterprises,
where the legal basis governing a pure question of law and jurisdiction
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is authoritatively clarified, the doctrine of res judicata cannot be
invoked to compel a court or tribunal to decide a pending proceeding
contrary to the law declared by the Supreme Court. This Court finds it
pertinent to refer to certain paras from Canara Bank v. N.G.
Subbaraya Setty17:
“30. An appeal from the Division Bench judgment pursuant to the
Full Bench decision [State of Punjab v. Nand Kishore, 1974 SCC
OnLine P&H 126 : AIR 1974 P&H 303] resulted in the decision
in Nand Kishore v. State of Punjab [Nand Kishore v. State of
Punjab, (1995) 6 SCC 614 : 1996 SCC (L&S) 57] . A brief resume
of the facts shows that the appellant had been compulsorily retired,
having completed only ten years’ qualifying service in pursuance of
Rule 5.32(b) of the Punjab Civil Services Rules, Vol. II. A writ
petition that was moved by the appellant against the compulsory
retirement order was dismissed on 2-2-1962. The appellant had not
questioned the validity of Rule 5.32(b) in the aforesaid writ
petition. However, in Moti Ram Deka v. North East Frontier
Railway [Moti Ram Deka v. North East Frontier Railway, (1964) 5
SCR 683 : AIR 1964 SC 600] , this Court held that if the
compulsory retirement rule permitted an authority to retire a public
servant at a very early stage of his career, such rule might be
constitutionally invalid. The appellant, spurred by the decision
in Moti Ram Deka [Moti Ram Deka v. North East Frontier
Railway, (1964) 5 SCR 683 : AIR 1964 SC 600] , filed a suit in
1964 for a declaration that Rule 5.32 of the aforesaid Rules was
constitutionally invalid. A pari materia rule to that of Rule 5.32
was struck down by this Court in Gurdev Singh Sidhu v. State
ofPunjab [Gurdev Singh Sidhu v. State of Punjab, (1964) 7 SCR
587 : AIR 1964 SC 1585 : (1964) 2 Cri LJ 481] . However, since a
writ petition had been filed by the appellant earlier, the State of
Punjab, in its written statement to the suit filed by the appellant,
took up the plea of constructive res judicata. This plea found
favour with the Full Bench of the High Court on 8-5-1974 [State of
Punjab v. Nand Kishore, 1974 SCC OnLine P&H 126 : AIR 1974
P&H 303] , following which a Division Bench allowed the appeal
of the State of Punjab on 13-8-1974. It is from this judgment that
an appeal landed up before this Court, as is stated hereinabove.
This Court, on 6-12-1990, advised the appellant to file a special
leave petition from the order of the High Court dismissing his writ
petition dated 15-2-1962 [Nand Kishore Vaid v. State of Punjab,
1962 SCC OnLine P&H 47 : PLR (1962) 64 P&H 469] , with an
appropriate application for condonation of delay. The delay was17
(2018) 16 SCC 228
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condoned by this Court in the interest of justice in the special
circumstances of this case under Article 142, and the said belated
appeal was allowed following Gurdev Singh [Gurdev Singh
Sidhu v. State of Punjab, (1964) 7 SCR 587 : AIR 1964 SC 1585 :
(1964) 2 Cri LJ 481] and striking down the order of compulsory
retirement of the appellant. Despite having so decided, this Court
went into the doctrine of constructive res judicata and decided that
the constitutionality of a provision of law stands on a different
footing from other questions of law. As there is a presumption of
constitutionality of all statutes, the “might and ought” rule of
constructive res judicata cannot be applied. Instead what was
applied by this Court was that part of the decision in Mathura
Prasad [Mathura Prasad Bajoo Jaiswal v. Dossibai N.B.
Jeejeebhoy, (1970) 1 SCC 613] which stated that when the law
has, since the earlier decision in the appellant’s writ petition,
been altered by a competent authority, res judicata cannot apply.
The Full Bench of the Punjab High Court was expressly
overruled on the point that a “competent authority” can also be a
court. Hence, a changed declaration of law would also fall within
an earlier decision being altered by a competent authority. This
Court, therefore, held that since this Court itself had altered the
law when it declared the pari materia rule as unconstitutional,
the doctrine of res judicata could not apply.
xxx
34.1. The general rule is that all issues that arise directly and
substantially in a former suit or proceeding between the same
parties are res judicata in a subsequent suit or proceeding between
the same parties. These would include issues of fact, mixed
questions of fact and law, and issues of law.
xxx
34.3. Another exception to this general rule follows from the
matter in issue being an issue of law different from that in the
previous suit or proceeding. This can happen when the issue of
law in the second suit or proceeding is based on different facts
from the matter directly and substantially in issue in the first suit
or proceeding. Equally, where the law is altered by a competent
authority since the earlier decision, the matter in issue in the
subsequent suit or proceeding is not the same as in the previous
suit or proceeding, because the law to be interpreted is different.”
[Emphasis Supplied]
71. This Court would also like to refer to Hope Plantations Ltd. v.
Taluk Land Board18, wherein the Hon’ble Supreme Court has held:
18
(1999) 5 SCC 590
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“31. Law on res judicata and estoppel is well understood in
India and there are ample authoritative pronouncements by various
courts on these subjects. As noted above, the plea of res judicata,
though technical, is based on public policy in order to put an end to
litigation. It is, however, different if an issue which had been
decided in an earlier litigation again arises for determination
between the same parties in a suit based on a fresh cause of
action or where there is continuous cause of action. The parties
then may not be bound by the determination made earlier if in
the meanwhile, law has changed or has been interpreted
differently by a higher forum. But that situation does not exist
here. Principles of constructive res judicata apply with full force. It
is the subsequent stage of the same proceedings. If we refer to
Order XLVII of the Code (Explanation to Rule 1) review is not
permissible on the ground
“that the decision on a question of law on which the judgment
of the Court is based has been reversed or modified by the
subsequent decision of a superior court in any other case, shall
not be a ground for the review of such judgment”.”
[Emphasis Supplied]
72. Having rejected the objection raised upon finality, the next
question concerns the continued maintainability of Consumer
Complaint No. 1962/2017 under Section 12(1)(c) of the 1986 Act.
This would require an examination of whether the complainants
presently prosecuting the complaint possess the “same interest”
contemplated by the said provision and whether they satisfy the
conditions subject to which their impleadment was permitted by the
learned NCDRC on 30.05.2019.
73. The requirement of sameness of interest constitutes the essential
statutory foundation of a representative consumer complaint. As
explained by the Supreme Court in Brigade Enterprises, a complaint
instituted by one or more consumers in a representative capacity is
distinct from a joint complaint filed by a number of consumers for
redressal of their own grievances. While several consumers may join
together to pursue their individual claims, a representative complaint
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is prosecuted on behalf of, and binds, numerous other consumers who
are not necessarily parties to the proceedings. It is for this reason that
the statutory requirement of sameness of interest assumes particular
significance.
74. In the present case, however, determination of the aforesaid
requirement is connected with an extensive factual enquiry. The
complaint was originally instituted by three complainants who framed
the pleadings and sought several reliefs, including delivery of
possession, compensation for delayed possession and setting aside of
the demand towards increased saleable area. Those three complainants
subsequently settled their disputes and withdrew from the
proceedings. Other allottees were thereafter impleaded subject to the
conditions recorded in the order dated 30.05.2019. It has further been
stated before this Court that, out of the 85 allottees who had at one
stage been impleaded, only 49 presently remain, the others having
settled their disputes with the petitioner.
75. Whether the presently surviving complainants constitute one
homogeneous class cannot be determined merely by reference to the
fact that they had purchased units in the same project or that some
monetary relief may be claimed by each of them. The enquiry would
necessarily require identification of each complainant presently
prosecuting the complaint and an examination of, inter alia, the date
and nature of the allotment, whether the complainant is an original or
subsequent allottee, the date on which possession was offered and
accepted, the period of delay, the compensation paid or accepted, the
execution of any conveyance deed, the subsequent sale or transfer of
the unit, the existence of any settlement and whether the complainant
had already invoked the jurisdiction of another court or forum.
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76. The said exercise would also require the factual position of each
surviving complainant to be compared with the pleadings and reliefs
framed by the three original complainants. It would have to be
determined whether each of the surviving complainants remains
interested in the reliefs sought in the complaint and whether the
conditions imposed by the learned NCDRC on 30.05.2019 were
fulfilled at the time of impleadment and continue to be fulfilled. The
status of persons who have settled or ceased to pursue the proceedings
would also have to be appropriately reflected while identifying the
class, if any, which is presently before the learned NCDRC.
77. These are not matters which can be satisfactorily determined by
this Court in the first instance while exercising supervisory
jurisdiction under Article 227 of the Constitution. Any conclusive
determination would require this Court to undertake a complainant-
wise scrutiny of the pleadings, agreements, possession documents,
conveyance deeds, settlement instruments, compensation records and
proceedings instituted before other forums. Such an exercise would
amount to assuming the role of the forum of first instance and entering
into factual adjudication beyond the limited supervisory jurisdiction
presently undertaken.
78. The learned NCDRC, before which the complaint, the amended
memos of parties, the additional written version, the affidavits of
evidence and the complainant-wise chart dated 13.08.2022 are on
record, is the appropriate forum to undertake this enquiry. It is for the
learned NCDRC to determine, on the basis of the presently subsisting
party array and the material placed before it, whether the surviving
complainants possess the sameness of interest required by Section
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12(1)(c) and whether they satisfy the conditions stipulated in the order
dated 30.05.2019.
79. The survival of an individual cause of action is conceptually
distinct from the requirement of sameness of interest for maintaining a
representative proceeding. The question is not merely whether each
complainant may possess some surviving monetary claim, but whether
the grievance, deficiency and relief are sufficiently common to enable
all such claims to be adjudicated through the same representative
pleadings and to bind the entire class by a common decision.
80. The impugned order dated 12.10.2022, however, does not
undertake the aforesaid exercise. The learned NCDRC proceeded
broadly on the premise that the surviving claims relating to delayed-
possession compensation and the demand towards increased saleable
area were sufficient to establish sameness of interest. The distinct
categories identified by the petitioner and the effect of the conditions
imposed on 30.05.2019 were not examined complainant-wise. Nor
does the impugned order disclose any determination as to whether the
surviving complainants, having regard to their respective factual and
legal positions, could validly be treated as comprising one
homogeneous class possessing the “same interest” within the
meaning of Section 12(1)(c) of the 1986 Act. Such an enquiry
required the learned NCDRC to examine whether the grievance
alleged, the deficiency in service complained of and the reliefs
claimed were substantially common to each of the surviving
complainants, and whether their claims could be adjudicated on the
basis of the same pleadings without undertaking materially distinct
complainant-wise enquiries. The mere circumstance that all of them
had purchased units in the same project, or that each may claim some
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form of monetary compensation, could not by itself establish
sameness of interest. It was necessary to determine whether their
differing circumstances relating to possession, delay, transfer,
acceptance of compensation, execution of conveyance deeds,
settlement and prior litigation permitted them to be represented
through a single complaint and bound by a common adjudication.
81. The learned NCDRC also observed that, in the case of persons
who had transferred their units after seeking impleadment, their rights
were required to be considered with reference to the date on which
they had joined the proceedings and that a subsequent transfer would
not, by itself, defeat their claims. There may be substance in the
limited proposition that a transfer effected during the pendency of the
proceedings does not automatically extinguish a claim which had
already accrued prior thereto. That question, however, is distinct from
whether such a person, after having transferred the unit, continues to
possess the same interest as the other members of the represented class
and remains entitled to prosecute the reliefs sought in the complaint
for the purposes of Section 12(1)(c) of the 1986 Act. The nature of the
rights transferred, the terms of the transfer, the period for which
compensation is claimed and the entitlement, if any, retained by the
transferor would require a complainant-wise examination. The
impugned order does not undertake that exercise.
82. The omission of undertaking the adequate exercise in the
impugned order as discussed above, assumes significance because
Brigade Enterprises requires a clear distinction to be maintained
between consumers jointly seeking redressal of their own grievances
and consumers prosecuting a complaint on behalf of an entire class.
The Hon’ble Supreme Court recognised that, where representative
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proceedings are impermissible, the complaint may, depending upon
the facts, be treated as a joint complaint confined to the actual
complainants, and that other persons may be impleaded only where
their grievance is limited to that projected in the complaint. The
precise procedural course to be adopted must, however, depend upon
the pleadings, reliefs and factual position of the persons who continue
to prosecute the complaint. At this stage, it would be apposite to
reproduce relevant paragraphs of Brigade Enterprises:
“20. The Explanation under Order 1 Rule 8 is of significance. It
distinguishes persons having the same interest in one suit from
persons having the same cause of action. To establish sameness of
interest, it is not necessary to establish sameness of the cause of
action.
21.The Explanation under Order 1 Rule 8, is a necessary
concomitant of the provisions of Rules 1 and 3 of Order 1. Order 1
Rule 1 CPC, allows many persons to join in one suit as plaintiffs.
Order 1 Rule 3 allows many persons to be joined in one suit as
defendants. But to fall under Order 1 Rule 1 or Order 1 Rule 3, the
right to relief should arise out of or be in respect of the same act or
transaction allegedly existing in such persons, jointly, severally or
in the alternative. To some extent, Rules 1 and 3 of Order 1 are
founded upon the sameness of the cause of action. This is why the
Explanation under Order 1 Rule 8 distinguishes sameness of
interest from the sameness of the cause of action.
22. Since “sameness of interest” is the prerequisite for an
application under Order 1 Rule 8 CPC read with Section 35(1)(c)
of the Consumer Protection Act, 2019, it was necessary for the
respondents to include in the consumer complaint, sufficient
averments that would show sameness of interest. As we have
pointed out earlier, the total number of residential apartments
constructed in three blocks comprising of about 20 wings (7 wings
each in Amber and Blue Blocks and 6 wings in Crimson Block)
were 1134. There are no pleadings insofar as the purchasers of 386
residential apartments in the 7 wings of Amber Block are
concerned. Even in respect of the owners of the remaining 748
residential apartments in Blue Block and Crimson Block, the
complaint does not contain any specific averments regarding
sameness of interest. The delay in handing over possession of the
residential apartments might have given rise to a cause of action for
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the individual purchasers of flats to sue the builder. But sameness
of the cause of action is not equal to sameness of interest. The
existence of sameness of interest, has been questioned by the
appellant builder on the ground that delay compensation as
stipulated in the agreements was offered to the purchasers and that
some of them accepted the same without any demur or protest,
while a few others have refused to accept. It is not clear from the
consumer complaint as to how:
(i) those who have accepted the compensation under
protest;
(ii) those who accepted without protest; and
(iii) those who refused to accept the compensation, have
the sameness of interest.
23. The period of delay in the completion of the project and the
handing over of possession, does not appear to be uniform in all
1134 cases. The respondent complainants cannot project
sameness of interest for the purchasers in whose case the period
of delay was negligible and those in whose cases there was a
huge delay.
24. We may have to look at the issue also from the point of view of
the buyers. The delay in handing over possession need not
necessarily be the only deficiency in service on the part of the
appellant builder. Some of the purchasers of flats may also have
other complaints and their right to proceed against the appellant
cannot be stultified by a few individuals invoking Section 35(1)(c).
That a few purchasers have chosen to approach the Karnataka State
Consumer Disputes Redressal Commission to ventilate their
individual grievances shows that all the 1134 buyers do not have
the same interest as that of the respondents. At least if the
respondents have given the names of purchasers of all flats on
whose behalf the present complaint could be entertained, they
would have been better off. But they have not done so.
xxx
30. All the above decisions show that for allowing an application
under Section 12(1)(c) of the 1986 Act or Section 35(1)(c) of the
2019 Act, the pleadings and the reliefs are to be considered. If so
considered, the National Commission could not have granted
permission to the respondents in this case, to file the complaint in
a representative capacity for and on behalf of the owners of all
the 1134 flats.
xxx
34. Section 35(1) reads as under:
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“35. 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 Commission by–
(a) the consumer–
(i) to whom such goods are sold or delivered or agreed to be
sold or delivered or such service is provided or agreed to be
provided; or
(ii) who alleges unfair trade practice in respect of such goods or
service;
(b) any recognised consumer association, whether the
consumer to whom such goods are sold or delivered or agreed to be
sold or delivered or such service is provided or agreed to be
provided, or who alleges unfair trade practice in respect of such
goods or service, is a member of such association or not;
(c) one or more consumers, where there are numerous
consumers having the same interest, with the permission of the
District Commission, on behalf of, or for the benefit of, all
consumers so interested; or
(d) the Central Government, the Central Authority or the State
Government, as the case may be:
Provided that the complaint under this sub-section may be filed
electronically in such manner as may be prescribed.”
xxx
38. We may take for example a case where a residential apartment
is purchased by the husband and wife jointly or by a parent and
child jointly. If they have a grievance against the builder, both of
them are entitled to file a complaint jointly. Such a complaint will
not fall under Section 35(1)(c) but fall under Section 35(1)(a).
Persons filing such a complaint cannot be excluded from Section
2(5)(i) on the ground that it is not by a single consumer. It cannot
also be treated as one by persons falling under Section 2(5)(v)
attracting the application of Order 1 Rule 8 CPC read with Section
38(11).
xxx
40. It must be remembered that the provisions of the Consumer
Protection Act are in addition to and not in derogation of the
provisions of any other law for the time being in force, by virtue of
Section 100. Even Section 38 which prescribes the procedure to be
followed by the Commission for enquiring into the complaint, does
not expressly exclude the application of the provisions of CPC.
Though sub-sections (9), (11) and (12) of Section 38 make specific
reference only to a few provisions of the Code of Civil Procedure,
the principle behind Order 1 Rule 1 enabling more than one person
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to join in a suit as plaintiff is not expressly excluded.
xxx
41. Therefore, we are of the considered view that while the
National Commission was wrong in this case, in the peculiar facts
and circumstances in permitting an application under Section
35(1)(c) read with Order 1 Rule 8 CPC, it does not mean that the
complaint filed by the respondents itself is liable to be thrown out.
The complaint filed by the respondents may have to be treated as a
joint complaint and not a complaint in a representative capacity on
behalf of 1134 purchasers. The purchasers of other flats, such as
the intervenors herein may join as parties to the consumer
complaint, if they so desire. As a matter of fact, it is stated by the
intervenors that pursuant to the impugned order [Anil Kumar
Virmani v. Brigade Enterprises Ltd., 2021 SCC OnLine NCDRC
417] , advertisements were issued and the intervenors have already
filed impleadment application before the National Commission.
They are entitled to be impleaded.”
[Emphasis Supplied]
83. Mr. Misra has urged that, in view of Brigade Enterprises, the
respondents should pursue their claims through a joint complaint
under Section 12(1)(a), rather than continue under Section 12(1)(c).
This Court does not consider it appropriate to render a final opinion on
that submission in the present proceedings. Whether the complaint
may continue as a representative complaint, whether it may proceed as
a joint complaint confined to the surviving complainants, or whether
any identifiable group of complainants may be permitted to pursue a
common grievance, are matters which must first be considered by the
learned NCDRC after undertaking the requisite factual enquiry.
84. For the same reason, this Court refrains from deciding on
whether the statement recorded on 27.07.2022, by which the
complainants confined their claims to delayed-possession
compensation and increased saleable area, amounted to an
abandonment of part of the representative claim attracting Order I
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Rule 8(4) of the CPC. The legal effect of that statement cannot be
examined in isolation from the identity of the persons represented by
the complaint, the reliefs in which they were interested and the
representative character, if any, in which the proceedings may
continue. The said issue is, therefore, also left open for determination
by the learned NCDRC.
85. The conclusion reached by the learned NCDRC cannot,
therefore, be sustained. This is not because this Court has itself
determined that the surviving complainants lack sameness of interest,
but because the necessary factual and statutory enquiry preceding such
a conclusion was not undertaken. The failure to apply the
jurisdictional requirements of Section 12(1)(c) to the presently
surviving complainants and to examine compliance with the
conditions imposed on 30.05.2019 renders the impugned order
vulnerable to interference under Article 227.
86. Accordingly, the order dated 12.10.2022 passed by the learned
NCDRC in I.A. No. 4407/2022 is liable to be set aside and the matter
remitted to the learned NCDRC for consideration afresh. The learned
NCDRC shall ascertain the current status and factual position of each
surviving complainant and determine, in accordance with law:
i. whether the surviving complainants, or any legally identifiable
group amongst them, possess the “same interest” required for
continuation of a representative complaint under Section
12(1)(c);
ii. whether the conditions imposed by the order dated 30.05.2019
stand satisfied;
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iii. whether, having regard to Brigade Enterprises (Supra), the
proceedings may continue as a representative complaint, or as a
joint complaint confined to the complainants actually before it,
or in any other manner permissible under the 1986 Act;
iv. the effect of the settlements, transfers, conveyances,
compensation accepted and proceedings pursued before other
forums;
v. the effect of the statement recorded on 27.07.2022 in the
context of Order I Rule 8(4) of the CPC; and
vi. any other ancillary or consequential issue which the learned
NCDRC considers necessary for the effective and complete
adjudication of the complaint.
87. It is clarified that this Court has expressed no final opinion on
the merits of the aforesaid questions. All contentions of the parties in
that regard are left open to be urged before and decided by the learned
NCDRC on the basis of the updated array of parties, the material
already on record and such further material as may be permitted to be
placed before it.
88. This Court is mindful of the concern raised by respondents that,
after the complaint has remained pending for several years, the
surviving complainants should not be left to recommence the entire
process or be deprived of adjudication merely because some members
of the original class have settled or ceased to pursue the proceedings.
At the same time, the claims of those who continue to prosecute the
complaint must be examined within the statutory framework. In these
circumstances, the appropriate course would be to request the learned
NCDRC to undertake the aforesaid exercise and conclude the
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proceedings as expeditiously as possible, preferably within a period of
six months from the date of receipt of a copy of this judgment.
89. In view of the aforesaid discussion, CM APPL. 29491/2026,
filed by respondent no. 19 seeking a direction to the petitioner to hand
over physical and vacant possession of Unit No. B1-38, Ground Floor,
“The Valley”, Panchkula, Haryana, is also disposed of. The relief
sought therein is left open to be considered and decided by the learned
NCDRC, in accordance with law, while adjudicating Consumer
Complaint No. 1962/2017.
90. Accordingly, the present petition is allowed to the extent
indicated hereinabove. The petition, along with all pending
applications, stands disposed of.
91. The judgment be uploaded on the website forthwith.
92. The Registry is directed to send a copy of this judgment to the
learned NCDRC.
AJAY DIGPAUL, J.
JULY 24, 2026/gs/yr
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