Writ Petition Against NCDRC Order Not Maintainable When All Respondents Are Private Parties; Remedy Lies Under Article 227: Calcutta High Court

The Court held that in such circumstances the proper constitutional remedy is supervisory jurisdiction under Article 227 rather than writ jurisdiction under Article 226.

The Court was hearing a petition directed against an order of the NCDRC dismissing the petitioners’ revision arising from proceedings before the State Consumer Commission.

A Bench of Justice Om Narayan Rai, upon deciding the matter, observed: “An order passed by the NCDRC would very well be assailable before the High Court by way of a petition either under Article 226 or under Article 227 of the Constitution of India in terms of the authoritative dictum of the Hon’ble Supreme Court in the case of Universal Sompo General Insurance Company Limited(supra). However, for the order of NCDRC to be assailable in a writ petition under Article 226 of the Constitution of India, the main respondent should be either the Government, governmental agencies or a State or instrumentalities of a State within the meaning of Article 12 in terms of the law laid down by the Hon’ble Supreme Court in the case of Shalini Shyam Shetty”.

Background

The petitioners approached the High Court, invoking Articles 226 and 227, challenging the NCDRC’s decision. At the threshold, the respondents objected to maintainability, contending that a writ under Article 226 lies only against entities falling within the definition of “State” under Article 12, whereas all respondents in the present case were private parties.

The petitioners argued that Supreme Court precedent permitted High Courts to entertain writ petitions against NCDRC orders and urged that the petition be treated as one under Article 226. They relied on decisions, including Universal Sompo General Insurance Co. Ltd. and other authorities, to support this proposition.

The respondents, however, relied on binding precedent, including Shalini Shyam Shetty, Ibrat Faizan, and Siddhartha S. Mookerjee, contending that where disputes involve only private parties, supervisory jurisdiction under Article 227, not writ jurisdiction, is the appropriate remedy.

Court’s Observations

The Court held that the question whether a writ petition under Article 226 could be maintained against private parties stood settled by the Supreme Court in Shalini Shyam Shetty vs. Rajendra Shankar Patil (2010). That judgment clarified that a writ petition is a public law remedy and that ordinarily the main respondent must be the State, a governmental authority, or an instrumentality of the State. Private parties cannot ordinarily be treated as such unless they discharge statutory or public duties.

Applying this principle, the Court found that all respondents in the present matter were private individuals and none performed any public function. Therefore, the petition could not be entertained under Article 226.

The Court clarified that orders of the NCDRC can indeed be challenged before High Courts, but the correct constitutional route depends on the parties and the nature of the relief sought. Referring to Universal Sompo General Insurance Company Limited vs. Suresh Chand Jain (2024) and Ibrat Faizan vs. Omaxe Buildhome Private Limited (2023), it observed that where no appeal lies to the Supreme Court, a challenge to an NCDRC order may always be brought under Article 227, irrespective of the parties involved.

It further held that the petitioners’ grievance was essentially one of alleged erroneous exercise of jurisdiction by the NCDRC, a matter appropriately examined under supervisory jurisdiction rather than writ jurisdiction.

The Court relied on Godrej Sara Lee Ltd. vs. Excise and Taxation Officer-cum-Assessing Authority (2023) to reiterate the distinction between maintainability and entertainability of writ petitions. It noted that although Article 226 jurisdiction is plenary, courts have discretion whether to entertain a petition, and the availability of an alternative remedy is a relevant factor in exercising that discretion. Thus, the Bench observed that even where a writ might technically be maintainable, the High Court may decline to entertain it if a more appropriate remedy exists.

The petitioners sought permission to add the NCDRC as a respondent to cure the maintainability defect. The Court rejected this argument. It held that even if the NCDRC were impleaded, it would not become the “main respondent,” since the Supreme Court in M.S. Kazi vs. Muslim Education Society (2016) held that a tribunal is not required to defend its own order and is therefore not a necessary party.

Consequently, impleading the NCDRC would not transform the petition into a maintainable Article 226 proceeding.

The Court addressed the argument that since the petition was filed under Articles 226/227, nomenclature should not matter. Referring to Neeta Singh vs. State of U.P(2024), it explained that although nomenclature is not decisive, the court must still ensure that the matter is heard by the bench competent to exercise the relevant jurisdiction.

Conclusion

The Court held that the petition could not be entertained under Article 226 because all respondents were private parties and none discharged a public function. It further held that adding the NCDRC as a party would not cure the defect or convert the proceeding into a maintainable writ petition.

In view of these findings, the Court directed that the petition be converted into one under Article 227 and placed before the appropriate Bench in accordance with roster allocation.

Cause Title: Dr Tripti Das & Anr. v. Dr Phani Bhusan Mandal & Ors.

Appearances

Petitioners: Kunal Saha, Authorised Representative.

Respondents: Biswanath Chakraborty, Shibaji Kumar Das, Deblina De, Sarosij Dasgupta, Avijit Dey, Advocates.

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