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Thursday, January 15, 2015

CIVIL APPEAL NO. 117 OF 2005 Videocon International Ltd. ... Appellant versus Securities & Exchange Board of India ... Respondent


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 117 OF 2005

Videocon International Ltd.                  ... Appellant


Securities & Exchange Board of India               ... Respondent

                               J U D G M E N T

Jagdish Singh Khehar, J.

1.    The Securities and Exchange Board  of  India  Act,  1992  (hereinafter
referred to as, the SEBI Act)  was  enacted  to  protect  the  interests  of
investors in securities and to promote the development of, and to  regulate,
the  securities  market.   The  Securities  and  Exchange  Board  of   India
(hereinafter referred to as, the Board) was vested with statutory powers  to
effectively deal with all matters relating to the capital market.
2.    The functions of the Board have been depicted in  Section  11  of  the
SEBI Act.  Under Section 11 of  the  SEBI  Act,  the  powers  of  the  Board
include, the power to suspend the trading of any security  in  a  recognized
stock-exchange; the power to restrain from accessing the  securities  market
and prohibit any person associated with the securities market  from  buying,
selling or dealing in securities; the power to suspend any office-bearer  of
any  stock-exchange  or  self-regulatory  organization  from  holding   such
position; the power to impound and retain  the  proceeds  or  securities  in
respect of any transaction  which  is  under  investigation;  the  power  to
attach after passing of an order on an application  made  for  approval  (by
the Judicial Magistrate of First Class having  jurisdiction)  for  a  period
not exceeding one month, one or more bank account(s) of any intermediary  or
any person associated with the securities market  in any manner involved  in
violation  of  any  of  the   provisions   of   the   SEBI   Act,   or   the
rules/regulations  framed  thereunder;  and  the   power   to   direct   any
intermediary or any person associated with  the  securities  market  in  any
manner not  to  dispose  of  or  alienate  an  asset  forming  part  of  any
transaction  which  is  under  investigation.   If  the  Board   finds   (on
investigation), that a person has violated (or is  likely  to  violate)  any
provision of the SEBI Act, or any  rules/regulations  made  thereunder,  the
Board is authorized under Section 11D of the SEBI  Act,  to  pass  an  order
requiring the person concerned, to  cease  and  desist  from  committing  or
causing such violation.
3.    Chapter VIA of the SEBI Act provides for penalties  and  adjudication.
Under Chapter  VIA,  a  penalty  can  be  levied,  for  failure  to  furnish
information, return or report to  the  Board  (Section  15A,  inserted  with
retrospective effect from 25.1.1995); a penalty can be imposed, for  failure
by any person to enter into such agreement, as he may be  required  (Section
15B, inserted with retrospective effect from 25.1.1995); a penalty can  also
be inflicted, for failure to redress  investors'  grievances  (Section  15C,
inserted with retrospective  effect  from  29.10.2002);  a  penalty  can  be
foisted, for  certain  defaults  in  case  of  mutual  funds  (Section  15D,
inserted with  retrospective  effect  from  25.1.1995);  a  penalty  can  be
levied, for failure to observe rules and regulations by an asset  management
company (Section 15E, inserted with retrospective effect from 25.1.1995);  a
penalty can be inflicted, for default in  case  of  stock  brokers  (Section
15F, inserted with retrospective effect from 25.1.1995); a  penalty  can  be
imposed, for insider  trading  (Section  15G,  inserted  with  retrospective
effect from 25.1.1995); a penalty can be  demanded,  for  non-disclosure  of
acquisition  of  shares  and  take-overs   (Section   15H,   inserted   with
retrospective effect from 25.1.1995/29.10.2002); a penalty  can  be  levied,
for fraudulent and unfair  trade  practices  (Section  15HA,  inserted  with
retrospective  effect  from  29.10.2002);  a  penalty  can  be  levied,  for
contravention, where no separate penalty has been  provided  (Section  15HB,
inserted with retrospective effect from 29.10.2002).  Under Section 15-I  of
the SEBI Act, the Board is mandated to  appoint  an  'adjudicating  officer'
(not below the rank of a  Division  Chief),  for  deciding  the  quantum  of
penalty to be imposed under Sections 15A to 15HB of the SEBI Act.
4.    A remedy of appeal to the Securities Appellate  Tribunal  (established
under Section 15K, by insertion of Chapter  VIB  into  the  SEBI  Act,  with
retrospective effect from 25.1.1995) was provided for under Section  15T  of
the SEBI Act, to a person aggrieved of an order passed by the Board,  or  by
an  'adjudicating  officer'  (for  details,  refer  to  the  preceding   two
paragraphs).  A further remedy of appeal, was  provided  from  an  appellate
order  passed  by  the  Securities  Appellate  Tribunal,  vide  Section  15Z
(inserted with retrospective effect from 15.1.1995).   Section  15Z  of  the
SEBI Act (as has been referred to above), is being extracted hereunder:-
      "15Z. Appeal to High Court-
Any person aggrieved by any decision or order of  the  Securities  Appellate
Tribunal may file an appeal to the High Court within  sixty  days  from  the
date of communication of the decision or order of the  Securities  Appellate
Tribunal to him on any question of fact or law arising out of such order."
                                                          (emphasis is ours)

A perusal of Section 15Z reveals, that when the second appellate remedy  was
made available to an aggrieved party for the first time, the forum  for  the
second  appeal  was  the  High  Court.   And  second  appellate  remedy  was
available on questions of fact, as also, questions of law.
5.    Section 15Z of the SEBI Act as originally enacted,  was  amended  with
retrospective effect, from 29.10.2002.  The above amendment to Section  15Z,
was brought into force  by  the  Securities  and  Exchange  Board  of  India
(Amendment) Ordinance, 2002.  The Ordinance was replaced by  the  Securities
and Exchange Board of India (Amendment) Act, 2002.  Section 15Z, as  amended
is reproduced hereunder:-
"15Z. Appeal to Supreme Court-
Any person aggrieved by any decision or order of  the  Securities  Appellate
Tribunal may file an appeal to the Supreme Court within sixty days from  the
date of communication of the decision or order of the  Securities  Appellate
Tribunal to him on any question of law arising out of such order.

Provided that the Supreme Court may, if it is satisfied that  the  applicant
was prevented by sufficient cause from filing the  appeal  within  the  said
period, allow it to be filed within a further  period  not  exceeding  sixty
                                                          (emphasis is ours)

A perusal of Section 15Z, as amended, reveals that the forum of  the  second
appellate remedy was changed from the High  Court,  to  the  Supreme  Court.
And the second appellate remedy was limited to questions of law  alone,  and
not on questions of fact.
6.    Through the present Civil Appeal no.  117  of  2005  (arising  out  of
Special Leave  Petition  (Civil)  no.  3221  of  2004),  the  appellant  has
impugned the order  passed  by  the  High  Court  of  Judicature  at  Bombay
(hereinafter referred to as, the  High  Court),  on  13.10.2003.   The  High
Court, through the impugned order had examined Section 15Z of the  SEBI  Act
(as amended by the Securities and Exchange Board of India  (Amendment)  Act,
2002).  The issue for determination before the High Court was,  whether  the
aforesaid  amendment  to  Section  15Z  of  the  SEBI  Act,  would   operate
prospectively or retrospectively.  Appeals had been preferred by the  Board,
before the  High  Court  assailing  the  orders  passed  by  the  Securities
Appellate Tribunal.  All the orders under challenge, had been passed by  the
Securities  Appellate  Tribunal  before  29.10.2002.   Some   appeals   were
preferred before 29.10.2002, and one of  the  appeals  was  preferred  after
29.10.2002.  The question which had arisen for adjudication before the  High
Court was, whether an  appeal  would  lie  to  the  High  Court,  after  the
amendment of Section 15Z of the SEBI Act.  The  Board  which  had  preferred
the  appeals,  asserted,  that  all  the  appeals  were  maintainable.   The
appellant before us, felt otherwise.
7.    The High Court by the impugned order arrived at the  conclusion,  that
such of the appeals as had been filed before the coming into  force  of  the
amended Section 15Z, would not be affected by the amendment,  and  the  High
Court had the jurisdiction to hear and  dispose  of  the  same.    The  High
Court also concluded, that such of the appeals as had been filed  after  the
coming into force of the amended Section 15Z, would not be maintainable.
8.    The instant appeal has arisen with  reference  to  the  appeals  which
have been held as maintainable by the High Court.  According to the  learned
counsel for the appellant, where the repealing Act provides for a new  forum
(as in the instant case), the original remedy (or legal proceedings)  cannot
be pursued after the repeal, the remedy before the new forum alone would  be
9.    Insofar as the factual aspect of the present matter is concerned,  the
impugned  order  which  was  assailed  before  the  High  Court,  under  the
unamended Section 15Z was disposed of before 29.10.2002.  And  therefore  it
was felt, that the remedy available at the time when the impugned order  was
passed,  had  to  be  pursued.   Therefore,  the  pointed  question  to   be
determined by this Court, in the present appeal would be, whether  an  order
passed by the Securities  Appellate  Tribunal  before  29.10.2002  would  be
appealable under the unamended provision of Section  15Z  of  the  SEBI  Act
before  the  High  Court,  or  alternatively,  whether  the  same  would  be
appealable under the amended provision  of  Section  15Z  of  the  SEBI  Act
before the Supreme Court.  And also, whether the date  on  which  the  Board
had preferred the appeals, was a relevant consideration, in  the  facts  and
circumstances of the present case.
10.   In order to canvass the proposition which has arisen  in  the  present
controversy, learned counsel for the  appellant  has  vehemently  contended,
that the amendment of Section 15Z, having only brought  about  a  change  in
the  forum,  would  be  deemed  to  have  amended  a  procedural  provision.
Accordingly it was the submission of the learned counsel,  that  the  afore-
stated amendment would be deemed to be retrospective, specially  because  no
vested right can be deemed to  have  been  taken  away.   It  was  also  the
vehement contention of the learned counsel, that in the absence of a  saving
clause, the pending proceedings and jurisdiction of the High  Court,  cannot
be deemed to have  been  saved.   It  was  the  contention  of  the  learned
counsel, that a case cannot be deemed to have been entertained by  a  Court,
till the Court applies its mind, and as such,  even  the  appeals  preferred
before the amended Section 15Z took effect retrospectively from  29.10.2002,
would be governed by  the  amended  provision,  rather  than  the  unamended
Section 15Z of the SEBI Act.
11.   In order to support his aforesaid contention, learned counsel for  the
appellant submitted, that Sections 15Y and 15Z of the SEBI  Act  had  to  be
considered together.  Section 15Y is being extracted hereunder:-
      "15Y. Civil court not to have jurisdiction- No civil court shall  have
      jurisdiction to entertain any suit or proceeding  in  respect  of  any
matter      which an adjudicating officer appointed  under  this  Act  or  a
Securities  Appellate Tribunal constituted under this Act  is  empowered  by
or under    this Act to determine and no injunction shall be granted by  any
court or    other authority in respect of any action taken or  to  be  taken
in pursuance     of any power conferred by or under this Act."
                                                          (emphasis is ours)

On the basis of Section 15Y extracted above, it was the  submission  of  the
learned counsel for the appellant,  that  the  powers  of  civil  courts  to
entertain issues emerging out  of  the  provisions  of  the  SEBI  Act  were
expressly taken away.  Section 15Y, according to  the  learned  counsel  for
the appellant, excluded even  the  jurisdiction  of  the  High  Court,  with
respect to the civil jurisdiction vested in the High Court,  in  respect  of
matters entrusted for adjudication, by the SEBI Act, with  the  adjudicating
officer or with the Securities Appellate Tribunal.  In  fact,  according  to
the learned counsel, the mandate of Section 15Y of the SEBI Act, debarred  a
civil court from even granting an injunction in respect of any action  taken
(or to be taken) in pursuance of any power conferred by or  under  the  SEBI
Act.  It was the contention of the learned counsel, that Section 15Z of  the
SEBI Act, should be examined in the background of the  intent  expressed  by
the legislature through Section 15Y.
12.   In conjunction with the above  submission,  learned  counsel  for  the
appellant invited the Court's  attention  to  Sections  27  and  32  of  the
Securities and Exchange Board of India  (Amendment)  Act,  2002,  which  are
reproduced hereunder:-
"27.  Substitution of new Section for Section 15Z-  For Section 15Z  of  the
principal Act, the following section shall be substituted,  namely:-   "15Z.
Appeal to Supreme Court -  Any person aggrieved by any decision or order  of
the Securities Appellate Tribunal may file an appeal to  the  Supreme  Court
within sixty days from the date of communication of the  decision  or  order
of the Securities Appellate Tribunal to him on any question of  law  arising
out of such order:  Provided that the Supreme Court may, if it is  satisfied
that the applicant was prevented by sufficient cause from filing the  appeal
within the said period, allow it to be filed within  a  further  period  not
exceeding sixty days.

32. Repeal and Saving-
1. The Securities and Exchange Board of India  (Amendment)  Ordinance,  2002
(Ord. 6 of 2002), is hereby repealed.
2. Notwithstanding the repeal of the Securities and Exchange Board of  India
(Amendment) Ordinance, 2002 (Ord. 6 of 2002), anything done  or  any  action
taken under the principal Act as amended by the  said  Ordinance,  shall  be
deemed to have been done or taken under the principal  Act,  as  amended  by
this Act."
                                                          (emphasis is ours)

Drawing the Court's attention to Section 32, the contention of  the  learned
counsel for the appellant was, that in the absence  of  any  saving  clause,
which may have  had  the  effect  of  preserving,  protecting,  securing  or
sustaining the jurisdiction vested in respect of appeals pending before  the
High Court, all the pending appeals would have  to  be  adjudicated  by  the
substituted forum, after the amendment of Section 15Z of the SEBI  Act.   On
the instant score, the further submission of the learned counsel  was,  that
whilst  amendment  to  procedure  had  generally  retrospective  effect,  an
amendment  to  a  provision  vesting  a  substantive  right  was   generally
13.    In  order  to  support  his  contentions,  learned  counsel  for  the
appellant, placed reliance on the decision in Colonial  Sugar  Refining  Co.
Ltd. v. Irving, 1905 AC 369.  In  the  judgment  relied  upon,  a  right  of
appeal was available from the Supreme Court of Queensland, to  the  King  in
Council.  The aforesaid right was taken away by the Australian  Commonwealth
Judiciary Act, 1903 (hereinafter referred to as,  the  1903  Act).   Section
39(2) of the 1903 Act, provided for an appeal  from  the  Supreme  Court  of
Queensland, to the High Court of Australia.  The question  which  arose  for
determination was, whether from  a  suit  pending  when  the  1903  Act  was
enacted, a remedy of appeal would lie before the King in Council  or  before
the High Court of  Australia.   In  the  judgment  relied  upon,  the  Privy
Council held as under:-
      "As regards the general principles applicable to the  case  there  was
no    controversy.  On the one hand, it was not disputed that if the  matter
in    question be a matter of      procedure  only,  the  petition  is  well
founded. On      the other hand, if it be more than a matter  of  procedure,
if it touches a  right in existence at  the  passing  of  the  Act,  it  was
conceded that, in      accordance with a long line of authorities  extending
from the time of       Lord Coke to the present day,  the  appellants  would
be entitled to   succeed. The Judiciary Act is not retrospective by  express
enactment or     by necessary intendment.  And therefore the  only  question
is, was the      appeal to His Majesty in Council  a  right  vested  in  the
appellants at the      date of the passing of the Act,  or  was  it  a  mere
matter of procedure?  It     seems to  their  Lordships  that  the  question
does not admit of doubt.  To      deprive a suitor in a  pending  action  of
an appeal to a superior tribunal  which belonged to him as the  right  is  a
very different thing from     regulating  procedure.   In  principle,  their
Lordships see no difference  between abolishing  an  appeal  altogether  and
transferring the appeal to   a new tribunal. In  either  case  there  is  an
interference with existing rights       contrary to the  well-known  general
principle that statutes are not to be   held to act  retrospectively  unless
a clear intention to that effect is     manifested."
                                                          (emphasis is ours)

14.   Learned counsel for the  appellant  pointed  out,  that  the  decision
rendered by the Privy Council in  Colonial  Sugar  Refining  Co.  Ltd.  case
(supra) was followed by this Court in Hoosein Kasam  Dada  (India)  Ltd.  v.
State of Madhya Pradesh, AIR 1953 SC 221.   The  issue  which  came  up  for
consideration in Hoosein  Kasam  Dada  (India)  Ltd.  case  (supra)  was  in
respect of the return filed by the appellant under the Berar Sales Tax  Act,
1947 (hereinafter referred to as, the 1947 Act).  The 1947 Act was  amended,
requiring the  payment  of  the  entire  assessed  amount,  as  a  condition
precedent, to the admission of an appeal.   The  Assistant  Commissioner  to
whom the return was transferred for disposal, made  an  assessment,  against
which the appellant preferred an appeal,  without  depositing  the  assessed
tax.  The Board of Revenue was of the view, that Section 22(1) of  the  1947
Act as amended, applied to the case, as the assessment  was  made,  and  the
appeal had been preferred, after the amendment came into force.  The  appeal
accordingly came to be rejected.  In further appeal,  this  Court  following
the decision of the Privy Council in Colonial Sugar Refining Co.  Ltd.  case
(supra), as well as certain other decisions held, that  a  right  of  appeal
was not merely a matter of procedure.  An appellate  remedy,  it  was  held,
was a substantive right.  The right  of  appeal  from  the  decision  of  an
inferior Tribunal, becomes vested in a party, when  proceedings  were  first
initiated before an inferior Court.  Such  a  vested  right,  it  was  held,
could not be taken away except by  an  express  enactment  or  by  necessary
intendment.  Accordingly, it  was  concluded,  that  the  earlier  provision
which created the right of appeal, would continue to apply.   The  unamended
provision was held, to govern the exercise and enforcement of the  right  of
an appeal.  It is thus concluded, that there could be  no  question  of  the
amended provision divesting the aggrieved party of its right to appeal.
15.   Eventually,  the  above  proposition  of  law,  according  to  learned
counsel, came to be crystallized  by  the  Constitution  Bench  judgment  in
Garikapati Veeraya v. N. Subbiah Choudhary, AIR 1957 SC  540,  wherein  this
Court recorded its conclusions in paragraph 23,  which  is  being  extracted
      "23.  From the decisions cited above the following  principle  clearly
emerge :

      (i) That the legal pursuit  of  a  remedy,  suit,  appeal  and  second
appeal      are really but steps in a series of  proceedings  all  connected
by an       intrinsic unity and are to be regarded as one legal proceeding.

      (ii) The right of appeal is not a mere matter of procedure  but  is  a
substantive right.

      (iii) The institution of the suit  carries  with  it  the  implication
that all rights  of appeal then in force are preserved to the parties  there
to till the rest       of the career of the suit.

      (iv) The right of appeal is a vested right and such a right  to  enter
the   superior Court accrues to the litigant and exists as on and  from  the
date the lis commences and although it may  be  actually  exercised     when
the adverse judgment is pronounced such right is to  be    governed  by  the
law prevailing at the date of the institution of the suit     or  proceeding
and not by the law that prevails at the date of its      decision or at  the
date of the filing of the appeal.

      (v) This  vested  right  of  appeal  can  be  taken  away  only  by  a
subsequent  enactment,  if  it  so  provides  expressly  or   by   necessary
intendment and not otherwise."
                                                          (emphasis is ours)

The aforesaid conclusions, came to be applied in Garikapati  Veeraya's  case
(supra), as is apparent from an extract of  the  judgment,  which  is  being
reproduced hereunder:-
"24.  In the case before us the suit was instituted on April 22,  1949,  and
on the principles established by the decisions referred to above  the  right
of appeal vested in the parties thereto at that date and is to  be  governed
by the law as it prevailed on that date, that is to say, on  that  date  the
parties acquired the right, if unsuccessful, to go up  in  appeal  from  the
sub-court to the High Court and from the High Court  to  the  Federal  Court
under the Federal Court (Enlargement of Jurisdiction) Act,  1947  read  with
Cl. 39 of the Letters Patent and Ss. 109 and 110 of      the Code  of  Civil
Procedure provided the conditions thereof were     satisfied.  The  question
for our consideration is whether that right has been  taken  away  expressly
or by necessary intendment by any subsequent  enactment.   That  respondents
to the  application  maintain  that  it  has  been  so  taken  away  by  the
provisions of our Constitution."

In continuation with the conclusions drawn hereinabove, learned counsel  for
the appellant placed reliance on Jose Da Costa  v.  Bascora  Sadasiva  Sinai
Narcornim, (1976) 2 SCC 917, specially, the following observations  recorded
      "31.  Before ascertaining  the  effect  of  the  enactments  aforesaid
passed by the Central Legislature on pending suits or  appeals,  it    would
be appropriate to bear in  mind  two  well-established  principles.      The
first is that "while provisions of a statute dealing merely with     matters
of  procedure  may  properly,  unless  that  construction   be     textually
inadmissible, have retrospective effect  attributed  to  them,    provisions
which touch a right in existence at the passing of the statute      are  not
to be applied retrospectively  in  the  absence  of  express   enactment  or
necessary intendment" (see Delhi Cloth  and  General        Mills  Co.  Ltd.
v. Income-tax Commissioner, AIR 1927 PC 242.

The second is  that  a  right  of  appeal  being  a  substantive  right  the
institution of a suit carries with it the implication  that  all  successive
appeals available under the law then    in force would be preserved  to  the
parties to the suit throughout the rest of the career  of  the  suit.  There
are two exceptions to the  application  of  this  rule,  viz,  (1)  when  by
competent enactment  such  right  of  appeal  is  taken  away  expressly  or
impliedly with retrospective effect and (2) when the court to  which  appeal
lay at the commencement  of  the  suit  stands  abolished  (see  Garikapatti
Veeraya v. N.  Subbiah  Choudhry,  AIR  1957  SC  540,  and  Colonial  Sugar
Refining Co. Ltd. v. Irving, 1905 AC 369.

32.   In  the  light  of  the  above  principles,  these  points  arise  for
consideration: Are the provisions of the Portuguese Civil Code  relating  to
reclamacao merely matters of procedure? Or, do they create or affect  vested
rights and remedies? That  is  to  say,  does  a  reclamacao  have  all  the
attributes of a substantive right of appeal existing at the commencement  of
the suit? Did the superior Court of Appeal at Lisbon stand abolished  as  an
appellate forum in relation to Goa, Daman and Diu from  December  20,  1962?
If so, what is its effect on the right of appeal given  by  Articles 677 and
722 of the Portuguese Civil Code and their application to the present  case?
Was the Portuguese Supreme Court at Lisbon succeeded by  the  Supreme  Court
of India for the purpose  of  the  aforesaid  Articles 677 and  722  of  the
Portuguese Code? If so, did this position hold good  after  June  15,  1966?
Does the Central Act 30 of  1965  read  with  Notification  No.  S.O.  1597,
issued  thereunder,      expressly  or  impliedly,  make  inapplicable   the
provisions of the Portuguese Civil Code  in  the  matter  of  reclamacao  in
respect of a  decision  or  Judgment  rendered  by  the  Court  of  Judicial
Commissioner after June 15, 1966? That is to say, have the rights,  remedies
or obligations arising out of the  Portuguese  Law  relating  to  reclamacao
been saved by any of the Clauses (a), (b) or (c) of  the  first  Proviso  to
Section 4(1) of Act 30 of 1966?

      33.   It may be noted that while a  right  of  appeal  from  court  to
court is    a substantive right which under the  then  law,  exists  on  and
from the    date of the institution of the suit, the  same  cannot  be  said
with regard      to reclamacao. The provisions of the Portuguese Civil  Code
relating    to   reclamacao lay down only special rules of  procedure  which
have to     be gone through before  a  litigant  is  entitled  to  raise  in
appeal a    material point left undecided by the lower court. The object  of
requiring   a party aggrieved by a 'nullity' is to  save  the  time  of  the
appellate Court  by precluding a party to reagitate  in  appeal  pleas  that
had been left    undecided  by  the  lower  court.  It  also  minimizes  the
necessity of     remands to the lower court for trial of  particular  issues
and thus    shortens litigation. The requirement or  obligation  to  file  a
reclamacao  is not an obligation in esse or/and from the institution of  the
suit. Nor is     the procedural right to file reclamacao-if at  all  it  can
be called a 'right'-   a vested right existing from the date  of  the  suit.
The filing of a  reclamacao is dependent upon the happening of an  uncertain
event.      It arises only when a Judgment suffering  from  a  'nullity'  is
passed.     Such a contingency may or may not arise. On the  other  hand  in
the   case of a suit it can be predicated that it would normally  result  in
a     decree entitling the aggrieved party to  have  the  suit  reheard  and
redecided in a higher forum by filing an appeal provided of course   such  a
right is available under the  law  prevailing  at  the  institution  of  the

34.    In  the  present  case,  the  Judgment  of  the  Additional  Judicial
Commissioner in which the alleged "nullity" or "omission to  adjudicate"  on
the point of prescription occurs was delivered on  January  20,  1968,  that
is,  long  after   the   extension   of   Articles 132, 133 and 134 of   the
Constitution,  rules  framed  under  Article 145 of  the  Constitution   and
Sections 109 and 116 of the Code of Civil Procedure to Goa, Daman  and  Diu.
The procedural provisions of the Portuguese  Code  relating  to  reclamacao,
and appeal from a decision on reclamacao, from the High Court in Goa,  Daman
and Diu stood repealed and superseded by the extended Indian laws  when  the
Judgment now under appeal was rendered."

On the instant proposition, learned counsel for the appellant last  of  all,
placed reliance on Shyam Sunder v. Ram  Kumar,  (2001)  8  SCC  24,  wherein
after relying on  the  conclusions  drawn  by  this  Court  in  Dayawati  v.
Inderjit, AIR  1966  SC  1423,  and  Hitendra  Vishnu  Thakur  v.  State  of
Maharashtra, (1994) 4 SCC 602, as also, on  K.S.  Paripoornan  v.  State  of
Kerala, (1994) 5 SCC 593, and noticing  extracts  therefrom,  in  paragraphs
25,  26  and  27  respectively,  this  Court  recorded  its  conclusions  in
paragraph  28.   Paragraphs  25  to  28  are  accordingly  being   extracted
      "25.  In Dayawati v. Inderjit, AIR 1966 SC 1423, it is held thus:

       "10.   Now  as  a  general  proposition,  it  may  be  admitted  that
ordinarily a     court of appeal  cannot  take  into  account  a  new  law.,
brought into existence after the judgment appealed from has  been  rendered,
because the rights of the litigants in an appeal  are  determined      under
the law in force at the date of the suit.  Even  before  the  days  of  Coke
whose maxim - a new law ought to be prospective, not  retrospective  in  its
operation - is oft-quoted, courts  have  looked  with  disfavour  upon  laws
which  take  away  vested  rights  or  affect  pending  cases.   Matters  of
procedure are, however, different and the law affecting procedure is  always
retrospective. But is does not mean  that  there  is  an  absolute  rule  of
inviolability of substantive rights. If the  new  law  speaks  in  language,
which, expressly or by clear intendment, takes in even pending matters,  the
court of trial as well as the  court  of  appeal  must  have  regard  to  an
intention so expressed, and the court of appeal may give effect  to  such  a
law even after the judgment of the court of first instance."

26.   In Hitendra Vishnu Tahkur v. State of Maharashtra, (1994) 4  SCC  602,
this Court laid down the  ambit  and  scope  of  an  amending  act  and  its
retrospective option as follows:

"(i)  A  statute  which  affects  substantive  rights  is  presumed  to   be
prospective in operation unless made retrospective, either expressly  or  by
necessary intendment, whereas a  statute  which  merely  affects  procedure,
unless such as construction is  textually  impossible,  is  presumed  to  be
retrospective in its application, should not be given  an  extended  meaning
and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in  nature,  whereas
law relating to right of action and right of appeal even though remedial  is
substantive in nature.

(iii) Every litigant has a vested right  in  substantive  law  but  no  such
right exists in procedural law.

(iv)  a  procedural  statute  should  not  generally  speaking  be   applied
retrospective where the result  would  be  to  create  new  disabilities  or
obligations or to impose new  duties  in  respect  of  transactions  already

(v) a statute which not only changes the  procedure  but  also  creates  new
rights and liabilities shall be construed to  be  prospective  in  operation
unless otherwise provided, either expressly or by necessary implication."

27.   In K.S. Paripoornan v. State of Kerala, (1994) 5 SCC 593,  this  Court
while considering the effect of   amendment in the Land Acquisition  Act  in
pending proceedings held thus:

"67.  In the instant case we are  concerned  with  the  application  of  the
provisions of sub-section (1-A) of Section 23 as introduced by the  Amending
Act  to  acquisition  proceedings  which  were  pending  on  the   date   of
commencement of the Amending act. In relation to  pending  proceedings,  the
approach of the courts in England is that the same  are  unaffected  by  the
changes in the law so far  as  they  relate  to  the  determination  of  the
substantive rights and in the absence of a clear indication  of  a  contrary
intention in an amending enactment, the substantive rights  of  the  parties
to an action fall to the determined by  the  law  as  it  existed  when  the
action was commenced and this is so whether the law  is  change  before  the
hearing of the case at the first instance or  while  an  appeal  is  pending
(See Halsbury's Laws of England, 4th Edn., Vol. 44, para 922)".

28.   From the aforesaid decisions the legal position that emerges  is  that
when a repeal of an enactment is  followed  by  a  fresh  legislation,  such
legislation does not effect the substantive rights of  the  parties  on  the
date  of  suit  or  adjudication  of  suit  unless  such  a  legislation  is
retrospective and a court of appeal cannot take  into  consideration  a  new
law brought into  existence  after  the  judgment  appealed  from  has  been
rendered because the rights of the  parties  in  an  appeal  are  determined
under the law in force on the date of the suit.  However,  the  position  in
law would be different in the matters which relate to procedural law but  so
far as substantive rights of parties are concerned  they  remain  unaffected
by the amendment in the      enactment.  We  are,  therefore,  of  the  view
that where a repeal of provisions of  an  enactment  is  followed  by  fresh
legislation  by  an  amending  Act,  such  legislation  is  prospective   in
operation and does not effect substantive or vested rights  of  the  parties
unless made retrospective either expressly or by  necessary  intendment.  We
are  further  of  the  view  that  there  is  a  presumption   against   the
retrospective operation of a statue and further  a  statute  is  not  to  be
construed to have  a  greater  retrospective  operation  than  its  language
renders necessary, but an  amending  act  which  affects  the  procedure  is
presumed to be retrospective, unless amending  act  provides  otherwise.  We
have carefully looked into the new  substituted  section 15 brought  in  the
parent Act by the Amendment Act, 1995 but do not find  it  either  expressly
or by necessary implication retrospective in operation which may affect  the
rights of the parties on the date of adjudication of suit and  the  same  is
required to be taken into consideration by the  appellate  Court.  In Shanti
Devi v. Hukum Chand, (1996) 5 SCC 768, this Court had occasion to  interpret
the substituted section 15 with which we are concerned and held  that  on  a
plain reading of  section 15, it  is  clear  that  it  has  been  introduced
prospectively and      there is no question of  such  section  affecting  in
any manner the judgment and  decree  passed  in  the  suit  for  pre-emption
affirmed by the High Court in the second appeal.   We  are  respectfully  in
agreement with the view expressed in the said decision  and  hold  that  the
substituted Section 15 in the absence of anything in it to show that  it  is
retrospective, does not effect the right of the  parties  which  accrued  to
them on the date of suit or on the date of passing  of  the  decree  by  the
Court of first instance. We are also of the view that  present  appeals  are
unaffected by change in law insofar  it  related  to  determination  of  the
substantive rights of the parties and the same are required  to  be  decided
in light of law of pre-emption as it existed on the date of passing  of  the
                                                          (emphasis is ours)

16.   Learned counsel for the  appellant,  however  pointed  out,  that  the
conclusions  drawn  by  this  Court,  on  the  issue  of  prospectivity  and
retrospectivity,  with  reference  to  substantive  rights  and   procedural
provisions, fully support the appellants' prayers  in  the  instant  appeal,
for the simple reason, that the amendment to Section 15Z  of  the  SEBI  Act
does not deprive the appellant, of the right  to  second  appeal.   In  this
behalf it was submitted, that the  right  of  first  appeal  is  before  the
Securities Appellate Tribunal, whereas,  the  right  to  second  appeal  was
before  the  High  Court,  prior  to  the  amendment  under   consideration.
Consequent upon the amendment of Section 15Z (with effect from  29.10.2002),
the right to second appeal, which earlier lay before  the  High  Court,  has
now been vested with the Supreme Court.  According to  learned  counsel  the
right of second appeal,  which  was  a  vested  substantive  right,  remains
preserved, even after the amendment.  It was  therefore  pointed  out,  that
only the forum of the second appeal, had been altered, from the  High  Court
(where it lay, under the unamended provision) to the Supreme Court of  India
(where it now lies, after the amendment).  It  was  contended,  that  whilst
the right of second appeal was a vested substantive right; the forum  before
which an appeal lies had  a  procedural  perspective,  and  had  no  similar
17.    In  support  of  his  above  submission,  learned  counsel  for   the
appellant, in the first instance,  placed  reliance  on  Maria  Cristina  De
Souza Sodder v. Amria Zurana Pereira Pinto, (1979) 1 SCC 92 and invited  our
attention to the following observations recorded therein:-
"5.   On the question as to where the appeal could be lodged we are  clearly
of the view that the forum was governed by the provisions of the Goa,  Daman
and Diu (Extension of Code of Civil Procedure,  1908  and  Arbitration  Act,
1940) Act, 1965 (Central Act XXX of 1965) read with the  provisions  of  the
Goa, Daman & Diu Civil Court Act,  1965  (Goa  Act  XVI  of  1965)  both  of
which came into force simultaneously on June 15, 1966  and  the  appeal  was
required to be  filed  in  the  Judicial  Commissioner's  Court.  Under  the
Central Act XXX of 1965 with effect from June 15,  1966  the  provisions  of
the Indian Civil Procedure Code were extended to the  Union  Territories  of
Goa, Daman and Diu and the corresponding provisions of the  Portuguese  Code
were repealed while under the Goa Act XVI of 1965  the  instant  suit  which
was pending before the Comarca Court at Margao was continued and decreed  by
corresponding Court of the Senior Civil Judge, who ultimately decreed it  on
March  8,  1968.  Under  the  Indian  Civil   Procedure   Code   read   with
Section 22 of the Goa Act since the property involved in  the  suit  was  of
the value exceeding Rs.10,000/- the  appeal  clearly  lay  to  the  Judicial
Commissioner's Court.  The contention that since the  right  of  appeal  had
been conferred by Portuguese Code, the forum where it could  be  lodged  was
also governed by the Portuguese Code cannot be accepted.   It  is  no  doubt
well-settled that the right of appeal is a substantive  right  and  it  gets
vested in a litigant no sooner the lis is commenced  in  the  Court  of  the
first instance, and such right or any remedy in respect thereof will not  be
affected by any repeal of the enactment conferring  such  right  unless  the
repealing enactment either expressly or by necessary implication takes  away
such right or remedy in respect thereof. This position has been  made  clear
by Clauses (b) and (c) of the proviso to Section 4 of the  Central  Act  XXX
of  1965  which  substantially  correspond  to  Clauses  (c)  and   (e)   of
Section 6 of     the General Clauses Act, 1897. This position has also  been
settled by  the decisions of the Privy Council  and  this  Court  (vide  the
Colonial Sugar Refining Company Ltd. v. Irving, 1905 AC 369 and  Garikapatti
Veeraya v. N. Subbiah Choudhury, (1957) 1 SCR 488, but the forum where  such
appeal  can  be  lodged  is       indubitably  a  procedural   matter   and,
therefore, the appeal, the right to which has arisen under  a  repealed  the
Act, will have to be lodged in a forum provided for by  the  repealing  Act.
That the forum of appeal, and  also  the  limitation  for  it,  are  matters
pertaining to procedural law  will  be  clear  from  the  following  passage
appearing at page 462 of Salmond's Jurisprudence (12th Edn.):

            Whether I  have  a  right  to  recover  certain  property  is  a
question of             substantive  law,  for  the  determination  and  the
protection  of  such            rights   are   among   the   ends   of   the
administration of justice; but in            what  courts  and  within  what
time I must institute proceedings are        questions  of  procedural  law,
for they relate merely to the modes in       which the courts fulfill  their

      It is true that under  Clause  (c)  of  the  proviso  to  Section 4 of
Central     Act XXX  of  1965  (which  corresponds  to  Section 6(e) of  the
General     Clauses Act, 1897)  it  is  provided  that  a  remedy  or  legal
proceeding in    respect of a vested right like a right to an appeal may  be
instituted,       continued  or  enforced  as  if  this  Act  (meaning   the
repealing Act) had     not been passed. But this provision merely saves  the
remedy or legal  proceeding in respect of such  vested  right  which  it  is
open to the      litigant to  adopt  notwithstanding  the  repeal  but  this
provision has    nothing to do with the forum  where  the  remedy  or  legal
proceeding has   to be pursued. If the  repealing  Act  provides  new  forum
where the   remedy or the legal proceeding in respect of such  vested  right
can be      pursued after the repeal, the forum must be as provided  in  the
repealing Act. We may  point,  out  that  such  a  view  of  Section 6(e) of
the General Clauses Act, 1897 has been taken by the  Rajasthan  High   Court
in  the  case  of  Purshotam  Singh   v.   Narain   Singh   and   State   of
Rajasthan, AIR 1955 Raj. 203. It is thus  clear  that  under  the  repealing
enactment (Act XXX of 1965) read with Goa Enactment (Act  XVI  of      1965)
the appeal lay to the judicial  Commissioner's  Court  and  the    same  was
accordingly filed in the proper Court."

On the same proposition, and to the  same  effect,  learned  counsel  placed
reliance on Hitendra Vishnu Thakur v. State of  Maharashtra,  (1994)  4  SCC
602, and  invited  our  attention  to  the  following  conclusions  recorded
      "25.  We have already noticed that Clause (b) of  Sub-section  (4)  of
Section 20 was amended by the Amendment Act No. 43 of 1993  with      effect
from 22.5.1993.  Besides, reducing the maximum  period     during  which  an
accused under TADA could be kept in custody  pending investigation from  one
year to 180 days, the Amendment Act     also introduced Clause (bb) to  Sub-
section (4) of Section 20 enabling      the prosecution  to  seek  extension
of time for completion of the     investigation. Does the Amendment Act  No.
43 of 1993 have  retrospective operation and does  the  amendment  apply  to
the cases   which were pending investigation on the date when the  Amendment
      Act came into force? There may be  cases  where  on  22.5.1993,    the
period of 180 days had already expired but the period of one year   was  not
yet over. In such a case, the argument  of  learned  Counsel  for        the
appellant is that the Act operates retrospectively and applies to    pending
cases and therefore the accused should be forthwith released  on bail if  he
is willing to be so released and is prepared to furnish the   bail bonds  as
directed by the court, an argument which is seriously     contested  by  the

      26.   The Designated Court has held that the amendment would   operate
retrospectively  and  would  apply   to   the   pending   cases   in   which
investigation was not complete on the date  on  which  the  Amendment    Act
came into force and the  challan  had  not  till  then  been  filed  in  the
court.  From  the  law  settled  by  this  Court  in  various   cases,   the
illustrative though not exhaustive,  principles  which  emerge  with  regard
to  the  ambit  and  scope  of  an  Amending  Act  and   its   retrospective
operation may be culled out as follows:

(i)  A  statute  which  affects  substantive  rights  is  presumed   to   be
prospective in operation, unless made retrospective, either expressly or  by
necessary intendment, whereas a  Statute  which  merely  affects  procedure,
unless such a construction is  texturally  impossible,  is  presumed  to  be
retrospective in its application, should not be given an  extended  meaning,
and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in  nature,  whereas
law relating to right of action and right of appeal, even  though  remedial,
is substantive in nature.

(iii) Every litigant has a vested right in  substantive  law,  but  no  such
right exists in procedural law.

(iv)  A  procedural  Statute  should  not  generally  speaking  be   applied
retrospectively, where the result would be to  create  new  disabilities  or
obligations, or to impose new duties  in  respect  of  transactions  already

(v) A Statute which not only changes the  procedure  but  also  creates  new
rights and liabilities, shall be construed to be prospective  in  operation,
unless otherwise provided, either expressly or by necessary implication.
                                                          (emphasis is ours)

In this behalf, reliance was also placed on  Thirumalai  Chemicals  Ltd.  v.
Union of India, (2011) 6 SCC 739  and  our  attention  was  invited  to  the
following observations recorded therein:-
      "24.  Right of appeal may be a substantive  right  but  the  procedure
for   filing the appeal including the period of limitation cannot be  called
a     substantive right, and an aggrieved person  cannot  claim  any  vested
right  claiming  that  he  should  be  governed   by   the   old   provision
pertaining  to  period  of  limitation.  Procedural  law  is   retrospective
meaning thereby that it will  apply  even  to  acts  or  transactions  under
the repealed Act.

      25.   Law on the subject has also been elaborately dealt with by  this
      Court in various decisions and reference may be made to few  of  those
decisions.   This  Court  in Garikapati  Veeraya v. N.   Subbiah   Choudhry,
AIR 1957 SC 540, New India Insurance Company Limited v. Shanti       Mishra,
(1975)  2  SCC  840, Hitendra  Vishnu  Thakur v. State  of      Maharashtra,
(1994) 4 SCC  602, Maharaja  Chintamani  Saran  Nath    Shahdeo v. State  of
Bihar, (1999) 8 SCC 16, and Shyam       Sundar v. Ram Kumar,  (2001)  8  SCC
24, has elaborately  discussed      the  scope  and  ambit  of  an  amending
legislation and its retrospectivity     and held that every litigant  has  a
vested right in substantive law but no   such  right  exists  in  procedural
law. This Court has held that the law   relating to forum and limitation  is
procedural in nature whereas law  relating to right of  appeal  even  though
remedial is substantive in   nature.

      26.    Therefore,  unless  the  language  used  plainly  manifests  in
express terms or by necessary implication a contrary intention a     statute
divesting vested rights is  to  be  construed  as  prospective,  a   statute
merely procedural is to be construed as retrospective and a   statute  which
while procedural in its character, affects vested rights       adversely  is
to be construed as prospective."
                                                          (emphasis is ours)

Based on the aforesaid determination of this Court, it  was  the  contention
of the learned counsel for the appellant, that the amendment of Section  15Z
of the SEBI Act, whereby the appellate  forum  was  changed  from  the  High
Court to the Supreme Court, would  necessarily  have  to  be  treated  as  a
procedural amendment.  Having so inferred, it  was  the  contention  of  the
learned counsel,  based  on  the  judgments  referred  to  above,  that  the
amendment under reference, was liable to be treated as procedural.   And  as
such, the amendment to Section 15Z had to be treated as if, the same  was  a
part of the SEBI Act from the very beginning.
18.   We have recorded hereinabove, the submissions advanced  on  behalf  of
the appellant.  We shall record hereinafter, the  response  of  the  learned
counsel for the respondent.
19.   While responding to the submissions  advanced  at  the  hands  of  the
learned counsel for the appellant, learned counsel for  the  respondent  was
satisfied, in  merely  relying  upon  judicial  precedent,  to  contest  the
submissions advanced at the hands of the learned counsel for the  appellant.
 It is therefore,  that  we  will  hereinafter  systematically  narrate  the
judgments referred to by the learned counsel for the respondent.
20.   First of all, learned  counsel  placed  reliance  on  Commissioner  of
Income Tax, Orissa v. Dhadi Sahu, 1994  Supp.(1)  SCC  257.   In  the  above
judgment, the respondent, an individual assessee, had filed a return of  his
income for the years 1968-69 and 1969-70.  The Income Tax  Officer  assessed
the income of the respondent manifold higher, than what was depicted in  the
income tax return.  After the assessment order was passed,  the  matter  was
referred to the Inspecting Assistant Commissioner under  Section  274(2)  of
the Income Tax Act, 1961, for imposing a penalty  under  Section  271(1)(c).
During the pendency of the above reference, Section 274(2) was amended  with
effect from 1.4.1971.  The Orissa High  Court  arrived  at  the  conclusion,
that by virtue of the amendment to Section 274(2) of  the  Income  Tax  Act,
1961, the Inspecting Assistant Commissioner,  was  no  longer  competent  to
impose the penalty.  This Court, while setting aside  the  order  passed  by
the High Court, inter alia observed as under:
"18. It may be stated at the outset that the general  principle  is  that  a
law which brings about a  change  in  the  forum  does  not  affect  pending
actions unless intention to the contrary is clearly shown. One of the  modes
by which such an intention is shown is by making  a  provision  for  change-
over of proceedings, from the court or the Tribunal where they  are  pending
to the court or the Tribunal which under the new law  gets  jurisdiction  to
try them.

19. Section 274(2) as it stood prior to April 1, 1971 required  the  Income-
tax Officer to refer the case to Inspecting Assistant  Commissioner  if  the
minimum penalty imposable exceeded  Rs.l,000.00.  The  Inspecting  Assistant
Commissioner on a reference made by the Income-tax Officer got  jurisdiction
to impose penalty in such cases. The jurisdiction  on  Inspecting  Assistant
Commissioner was conferred by virtue of the  reference.  The  reference  was
validly made by the Income-tax Officer before April 1,  1971.  The  question
is  did  the  amendment  to  Section 274 divest  the  Inspecting   Assistant
Commissioner of his validly acquired jurisdiction or  the  amendment  ousted
his jurisdiction merely because the  amount  of  concealed  income  did  not
exceed Rs. 25,000.00 and  the  case  did  not  satisfy  the  requirement  of
Section 274(2) as amended.

20. It will be noticed that the Amending Act  did  not  make  any  provision
that  the  references  validly  pending  before  the  Inspecting   Assisting
Commissioner shall be returned  without  passing  any  final  order  if  the
amount of income in respect of which the  particulars  have  been  concealed
did not exceed Rs.25,000.00. This supports the  inference  that  in  pending
references  the  Inspecting  Assistant  Commissioner   continued   to   have
jurisdiction to impose penalty. The previous operation of  Section 274(2) as
it stood before April 1, 1971, and anything  done  thereunder  continued  to
have effect under Section 6(b) of the General Clauses  Act,  1897,  enabling
the Inspecting Assistant Commissioner to pass  orders  imposing  penalty  in
pending references. In our opinion, therefore, what is material to  be  seen
is as to when the references were  initiated.  If  the  reference  was  made
before April 1, 1971, it would be governed  by  Section 274(2) as  it  stood
before  that  date  and  Inspecting  Assistant   Commissioner   would   have
jurisdiction to pass the order of penalty.

21. It is also true that no litigant has any vested right in the  matter  of
procedural law but where the question is of change of forum it ceases to  be
a question of procedure only. The  forum  of  appeal  or  proceedings  is  a
vested  right  as  opposed  to  pure  procedure  to  be  followed  before  a
particular  forum.  The  right  becomes  vested  when  the  proceedings  are
initiated in the Tribunal or the court of  first  instance  and  unless  the
legislature has by express words or  by  necessary  implication  clearly  so
indicated, that vested right  will  continue  in  spite  of  the  change  of
jurisdiction of the different Tribunals or forums.

      xxx                    xxx                         xxx

25. In Manujendra Dutt v. Purmedu Prosad Roy Chowdhury, AIR  1967  SC  1419,
this Court considered the  effect  of  the  deletion  of  Section 29 of  the
Calcutta Thika Tenancy Act, 1949, by the Calcutta Thika Tenancy  (Amendment)
Act, 1953 in the context of the  pending  action.  The  suit  for  ejectment
against a tenant was instituted in  a  civil  court  in  1947.  In  view  of
Section 29 of the Thika Tenancy Act, 1949, the suit was transferred  to  the
Controller.  During  the  pendency  of  the  suit  before  the   Controller,
Section 29 was deleted by the Amending Act.  The  question  that  arose  was
whether by deletion of Section 29 the jurisdiction of the Controller over  a
pending suit was taken away. It was held by this Court that the deletion  of
Section 29 did not deprive the Controller of his  jurisdiction  to  try  the
suit pending before him on the date when the Amending Act came  into  force.
It was pointed out that though the Amending Act did not contain  the  saving
clause the savings contained in  Section 8 of  the  Bengal  General  Clauses
Act, 1899, corresponding to Section 6 of the Central Act,  applied  and  the
transfer of the suit having been lawfully made under Section 29 of the  Act,
its deletion by the Amending Act, did not affect its previous  operation  or
anything duly done thereunder. Similarly, in Mohd. Idris v. Sat Narain,  AIR
1966 SC 1499, the question was whether the Munsif  who  was  trying  a  suit
under the U.P. Agriculturists Relief Act ceased to have  jurisdiction  after
the passing of the U.P. Zamindari Abolition  and  Land  Reforms  (Amendment)
Act, 1953, which conferred jurisdiction on  the  Assistant  Collector.  This
Court held that the jurisdiction  of  the  Assistant  Collector  was  itself
created by the Abolition Act and as there was no provision in that Act  that
the pending cases, were to stand transferred to the Assistant Collector  for
disposal, the Munsif continued to have jurisdiction to try the suit. It  was
observed that the provisions for change-over of proceedings from  one  court
to  another  are  commonly  found  in  a  statute  which  takes   away   the
jurisdiction of one court and confers it to the other in pending actions.

26. Surely the Amending Act does  not  show  that  the  pending  proceedings
before the court on reference abate.

27. We are thus of the considered view that the advisory  opinion  given  by
the High Court to the question referred to  it  was  wrong  and  the  answer
should be in favour of the appellant and it  is  held  that  the  Inspecting
Assistant Commissioner to whom the case was referred prior to April 1,  1971
had jurisdiction to impose the penalty. The view expressed by the  Allahabad
High Court in CIT v. Om Sons, [1979] 116 ITR 215 (All),  and  the  Karnataka
High Court in CIT v. M.Y. Chandragi, [1981] 128 ITR  256  (KAR),  does  not,
therefore, lay down the correct law."
                                                          (emphasis is ours)

According to learned counsel, a perusal  of  the  above  judgment  revealed,
that change of forum could  be  substantive  or  procedural.   It  would  be
procedural when the remedy has yet to be availed of.  But where  the  remedy
had already been availed of (under an  existing  statutory  provision),  the
right  crystallized  into  a  vested  substantive  right.   In  the   latter
situation, according to learned counsel, unless the amending  provision,  by
express words or by necessary implication mandates, the transfer of  pending
proceedings to the forum introduced by the amendment, the  forum  postulated
by the unamended provision, has the jurisdiction to adjudicate upon  pending
matters (filed before the amendment).
21.   According to learned counsel,  his  submission  also  flows  from  the
mandate contained in Section 6 of the General Clauses Act, 1897.  For  this,
learned counsel placed reliance on Ambalal Sarabhai Enterprises  Limited  v.
Amrit Lal and Co., (2001) 8 SCC 397.   In  the  above  cited  judgment,  the
respondent-landlord had filed an eviction petition on 13.9.1985 against  the
appellant, under Section 14(1)(b) of the Delhi Rent Control Act.   When  the
above  petition  was  pending,  Section  3(c)  was  brought  in  through  an
amendment  with  effect  from  1.12.1988.   By  the  above  amendment,   the
jurisdiction of  the  Rent  Controller,  with  respect  to  tenancies  which
fetched a monthly rent exceeding Rs.3,500/-, was excluded.  Consequent  upon
the aforesaid amendment, the  appellant-tenant  contended,  that  the  civil
court alone, had the jurisdiction to  entertain  the  claim  raised  by  the
landlord, and that, the eviction petition filed under the provisions of  the
Delhi Rent Control Act, was no longer maintainable.  While adjudicating  the
aforesaid dispute, this Court held as under:
"24. We may quote here Section 6 of the General Clauses Act, 1897:

"6. Effect of repeal - Where this Act, or  any  Central  Act  or  Regulation
made after the commencement of this  Act,  repeals  any  enactment  hitherto
made or hereafter to be made, then, unless a  different  intention  appears,
the repeal shall not-

(a) revive anything not in force or  existing  at  the  time  at  which  the
repeal takes effect; or

(b) affect the previous operation of any enactment so repealed  or  anything
duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability  acquired,  accrued
or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of  any
offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect  of  any
such  right,  privilege,  obligation,  liability,  penalty,  forfeiture   or
punishment as aforesaid, and any such  investigation,  legal  proceeding  or
remedy may be instituted, continued  or  enforced,  and  any  such  penalty,
forfeiture or  punishment  may  be  imposed  as  if  the  repealing  Act  or
Regulation had not been passed."

25. The opening words of  Section 6 specify  the  field  over  which  it  is
operative. It is  operative  over  all  the  enactments  under  the  General
Clauses Act, Central Act or  Regulations  made  after  the  commencement  of
General Clauses Act. It also clarifies in case of repeal  of  any  provision
under the aforesaid Act or regulation, unless a different intention  appears
from such repeal, it would have no affect over the matters  covered  in  its
sub-clauses, viz., (a) to (e). It clearly specifies that  the  repeal  shall
not revive anything not in force or in  existence  or  effect  the  previous
operation of any enactment so repealed or anything duly done or suffered  or
affect any right, privilege, obligation or liability  acquired,  accrued  or
incurred under the repealed  statute,  affect  any  penalty,  forfeiture  or
punishment incurred in respect of any offence committed under  the  repealed
statute and also does not affect  any  investigation,  legal  proceeding  or
remedy in respect of  any  such  right,  privilege,  obligation,  liability,
penalty, forfeiture or punishment  as  aforesaid.  Thus  the  Central  theme
which spells out is that any investigation or legal proceeding  pending  may
be continued and enforced as if the repealing  Act  or  Regulation  had  not
come into force.

26. As a general rule, in view of Section 6, the repeal of a statute,  which
is not retrospective in operation, does not prima facie affect  the  pending
proceedings which may be continued as if the repealed enactment  were  still
in force. In other words such repeal  does  not  effect  the  pending  cases
which would continue to be concluded  as  if  the  enactment  has  not  been
repealed. In fact when a lis commences, all rights and  obligations  of  the
parties get crystallised on that  date.  The  mandate  of  Section 6 of  the
General Clauses Act is simply to leave the  pending  proceedings  unaffected
which commenced under the unrepealed provisions  unless  contrary  intention
is expressed. We find Clause (c) of Section 6, refers the words "any  right,
privilege, obligation.... acquired or accrued" under  the  repealed  statute
would not be affected by the repealing statute. We  may  hasten  to  clarify
here, mere existence of a right not being 'acquired' or  'accrued',  on  the
date of the repeal would not get  protection  of  Section 6 of  the  General
Clauses Act.

27. At the most, such a provision can be said to be granting a privilege  to
the landlord to seek intervention of the  Controller  for  eviction  of  the
tenant under the Statute. Such a  privilege  is  not  a  benefit  vested  in
general but is a benefit granted and may  be  enforced  by  approaching  the
Controller in the  manner  prescribed  under  the  statute.  On  filing  the
petition of eviction of the tenant the privilege accrued with  the  landlord
is not effected by repeal  of  the  Act  in  view  of  section 6(c) and  the
pending proceeding is saved under Section 6(e) of the Act.

      xxx              xxx              xxx              xxx

34. Thus we find Section 6 of the General Clauses Act covers a  wider  filed
and saves a wide range or  proceedings  referred  to  in  its  various  sub-
clauses. We find two sets of  cases,  one  where  Section 6 of  the  General
Clauses Act is applicable and the other where it is not applicable.

35.  In  cases  where  Section 6 is  not  applicable,  the  courts  have  to
scrutinise and find, whether a person  under  a  repealed  statute  had  any
vested right. In case he had,  then  pending  proceedings  would  be  saved.
However, in cases where Section 6 is applicable, it is not merely  a  vested
right but all those covered under various sub-clauses from  (a)  to  (e)  of
Section 6. We have already  clarified  right  and  privileges  under  it  is
limited to those which is 'acquired' and 'accrued'. In  such  cases  pending
proceedings is to be continued as if the statute has not been repealed.

36. In view of the aforesaid  legal  principle  emerging,  we  come  to  the
conclusion that since proceeding for the eviction of the tenant was  pending
when the  repealing  Act  came  into  operation,  Section 6 of  the  General
Clauses Act would be applicable in the present case,  as  it  is  Landlord's
accrued right in terms of Section 6.   Clause  (c)  of  Section 6 refers  to
"any right" which may not be limited as a vested right but is limited to  be
an accrued right. The words 'any right  accrued'  in  Section 6(c) are  wide
enough to include landlord's right to evict a tenant in case proceeding  was
pending when repeal came in. Thus  a  pending  proceeding  before  the  Rent
Controller for the eviction of a tenant on the date when the  repealing  Act
came into force would not be affected by the repealing statue  and  will  be
continued and concluded in accordance with the  law  as  existed  under  the
repealed statute."
                                                          (emphasis is ours)

Based on the above determination, it  was  the  contention  of  the  learned
counsel, that in addition to the existence of a vested right,  Section  6(c)
and (e) make it  abundantly  clear,  that  a  pending  legal  proceeding  or
remedy, before the  amendment  altered  the  forum,  would  continue  to  be
available for the adjudication of the matter, unless the amending  provision
by express words or by necessary implication expressed otherwise.
22.   Reliance was thereafter placed by learned  counsel,  on  M/s.  Hoosein
Kasam Dada (India) v. State  of  Madhya  Pradesh,  AIR  1953  SC  221.   The
question, which  arose  for  consideration  in  the  cited  case  was,  with
reference to the maintainability of an appeal preferred  by  the  appellant,
under Section 22(1) of the Central Provinces of Berar Sales Tax  Act,  1947,
to the Sales Tax Commissioner, Madhya Pradesh, against an  assessment  order
passed by the Assistant Commissioner.  Since the appellant  did  not  attach
to the appeal any proof of payment of tax in respect  of  which  the  appeal
had been preferred, the authorities  declined  to  admit  the  appeal.   The
aforesaid determination by the Sales Tax Commissioner, was  assailed  before
the Board of Revenue, Madhya Pradesh.  It was sought to be  asserted  during
the  course  of  the  aforesaid  appellate  proceedings,  that  the   appeal
preferred by the appellant would be  governed  by  the  proviso  to  Section
22(1)  of  the  above  mentioned  Act,  as  it  stood  when  the  assessment
proceedings were initiated (i.e., before the amendment  to  the  proviso  to
Section 22(1) aforementioned).  The Board of Revenue  took  the  view,  that
the order of assessment was  made  after  the  amendment  to  the  aforesaid
provision, and accordingly, the appeal would  be  governed  by  the  amended
provision.  It was also concluded, that the law as  it  existed  before  the
filing  of  the  appeal,  would  not  apply  to  the  case.   The  aforesaid
determination was assailed by  the  appellant,  before  the  High  Court  of
Madhya Pradesh, which dismissed the contention  of  the  appellant.   It  is
therefore  that  the  appellant  approached  this  Court.   On  the  subject
referred to hereinabove, this Court observed as under:
"4. The principle of the above decision was applied by Jenkins C.J. in  Nana
v. Sheku, 32 Bom. 337(B), and by the Privy Council  itself  in  Delhi  Cloth
and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi,  AIR  1927  PC
242 (C).  A Full Bench of the Lahore High Court adopted it  in  Kirpa  Singh
v. Rasalldar Ajaipal Singh, AIR 1928  Lah.  627  (FB)  (D).   It  was  there
regarded as settled that the right of  appeal  was  not  a  mere  matter  of
procedure  but  was  vested  right  which  inhered  in  a  party  from   the
commencement of the action in the Court of first  instance  and  such  right
could not be taken away except by  an  express  provision  or  by  necessary

5. In Sardar Ali v. Dolimuddin, AIR 1928 Cal. 640 (FB) (E), the suit out  of
which the appeal arose was filed in the Munsiff's Court at  Alipore  on  the
7.10.1920. The suit having been dismissed on the 17.7.1924,  the  plaintiffs
appealed to the Court of the District Judge but the  appeal  was  dismissed.
The plaintiffs then preferred a second appeal  to  the  High  Court  on  the
4.10.1926. That second appeal was heard by a Single Judge and was  dismissed
on the 4.4.1928. In the meantime Cl. 15 of the Letters  Patent  was  amended
on the 14.1.1928 so as to provide that no further  appeal  should  lie  from
the decision of a Single Judge sitting in second  appeal  unless  the  Judge
certified that the case was a fit one for appeal. In this case  the  learned
Judge who dismissed the second appeal on the 4.4.1928, declined to give  any
certificate of fitness. The plaintiffs on the 30.4.1928, filed an appeal  on
the strength of Cl. 15  of  the  Letters  Patent  as  it  stood  before  the
amendment.  The contention of the appellants was  that  the  amended  clause
could not be applied to that appeal, for to do  so  would  be  to  apply  it
retrospectively and to impair and  indeed  to  defeat  a  substantive  right
which was in existence prior to the date of the amendment.   The  appellants
claimed that on the 7.10.1920, when the suit was filed they  had  vested  in
them by the existing law a substantive right to Letters Patent  appeal  from
the decision of a Single Judge and that an intention to interfere  with  it,
to clog it with a new condition or to impair or  imperil  it  could  not  be
presumed unless it was clearly manifested  by  express  words  or  necessary
intendment. In giving effect to the contentions  of  the  appellants  Rankin
C.J. observed at pp. 641-642:-

"Now, the  reasoning  of  the  Judicial  Committee  in  The  Colonial  Sugar
Refining Company's case (A) is a conclusive authority to  show  that  rights
of appeal are not matters of procedure, and that  the  right  to  enter  the
superior court is for the present purpose deemed  to  arise  to  a  litigant
before any decision has been given by the inferior  court.   If  the  latter
proposition be accepted, I can see no intermediate point at which to  resist
the conclusion that the right arises at the date of the suit."

It was held that the new clause could not be given retrospective effect  and
accordingly the date of presentation of the second appeal to the High  Court
was not the date which determined the applicability of  the  amended  clause
of the Letters Patent and that the date of the institution of the  suit  was
the determining factor.

      xxx                    xxx                   xxx

7. The case of Nagendra Nath v. Man Mohan Singha, AIR 1931 Cal. 100 (N),  is
indeed very much to the point.  In that case  the  plaintiffs  instituted  a
suit for rent valued at Rs.1,306/15 and obtained a decree. In  execution  of
that decree the defaulting tenure was sold on 20.11.1928, for Rs.1,600.   On
19.12.1928, an application was made, under O. XXI, R. 90, Civil PC,  by  the
present petitioner, who was one of the judgment-debtors, for  setting  aside
the sale.  That  application  having  been  dismissed  for  default  of  his
appearance the petitioner preferred an  appeal  to  the  District  Judge  of
Hoogly who refused to admit  the  appeal  on  the  ground  that  the  amount
recoverable in execution of the decree had not been  deposited  as  required
by the proviso to S. 174, Cl. (c), of the Bengal Tenancy Act as  amended  by
an amending Act in 1928. The contention  of  the  petitioner  was  that  the
amended provision which came into force on 21.2.1929, could not  affect  the
right of appeal from a decision on an application made  on  19.12.1928,  for
setting aside the sale. Mitter J. said at pp. 101-102:-

"We think  the  contention  of  the  petitioner  is  well-founded  and  must
prevail. That a right of  appeal  is  a  substantive  right  cannot  now  be
seriously disputed. It is not a mere  matter  of  procedure.  Prior  to  the
amendment of 1928, there was an appeal against  an  order  refusing  to  set
aside a sale (for that is the effect  also  where  the  application  to  set
aside the sale is dismissed for default) under the provisions of O.  43,  R.
(1), Civil PC.  That right was unhampered by any  restriction  of  the  kind
now imposed by S. 174(5), Proviso.  The Court was bound to admit the  appeal
whether appellant deposited the  amount  recoverable  in  execution  of  the
decree or not.  By requiring such deposit as a condition  precedent  to  the
admission of the appeal, a new restriction has been  put  on  the  right  of
appeal, the admission of which is now hedged in with a condition. There  can
be no doubt that the right of appeal has been affected by the new  provision
and in the absence of an express enactment this amendment  cannot  apply  to
proceedings pending at the date when the new amendment came into force.   It
is true that the appeal was filed after the Act came into  force,  but  that
circumstance is immaterial - for  the  date  to  be  looked  into  for  this
purpose is the date of the original proceeding which  eventually  culminated
in the appeal."

8. The above decisions quite firmly establish and our decisions in  Janardan
Reddy v. The State, AIR  1951 SC  124(O),  and  in  Ganpat  Rai  v.  Agarwal
Chamber of Commerce Ltd., AIR 1952 SC 409 (P), uphold the principle  that  a
right of appeal is not merely  a  matter  of  procedure.  It  is  matter  of
substantive right. This right of appeal from the  decision  of  an  inferior
tribunal to a superior tribunal becomes vested in a party  when  proceedings
are first initiated in, and before a decision  is  given  by,  the  inferior
court. In the language of Jenkins C.J. in  Nana  v.  Sheku  (B)  (supra)  to
disturb an existing right of appeal is not a mere alteration  in  procedure.
Such a vested right cannot be taken away  except  by  express  enactment  or
necessary intendment.  An intention  to  interfere  with  or  to  impair  or
imperil such a vested right cannot be  presumed  unless  such  intention  be
clearly manifested by express words or necessary implication.

9. Sri Ganapathy Aiyar urges that  the  language  of  S.  22(1)  as  amended
clearly makes the section retrospective. The  new  proviso,  it  is  pointed
out, pre-emptorily requires the authority not to admit the appeal unless  it
be accompanied by a satisfactory proof of the payment of the tax in  respect
of which the appeal is preferred and this duty the authority must  discharge
at the time the appeal is actually preferred before  him.  The  argument  is
that after the amendment the authority has no option in the  matter  and  he
has no  jurisdiction  to  admit  any  appeal  unless  the  assessed  tax  be
deposited. It follows, therefore, by  necessary  implication,  according  to
the learned Advocate, that the amended provision applies to an  appeal  from
an assessment order made before the date of  amendment  as  well  as  to  an
appeal from an order made after that date.  A  similar  argument  was  urged
before the Calcutta Special Bench in Sardar Ali v. Dolimuddin  (E)  (supra),
namely, that after the amendment the court had no authority to entertain  an
appeal without a certificate from the Single Judge.  Rankin  C.J.,  repelled
this argument with the remark at p. 643 :-

"Unless  the  contrary  can  be  shown,  the  provision  which  takes   away
jurisdiction is itself subject to  the  implied  saving  of  the  litigants'

In our view the above observation  is  apposite  and  applies  to  the  case
before us.  The  true  implication  of  the  above  observation  as  of  the
decisions in the other cases referred to  above  is  that  the  pre-existing
right of appeal is not destroyed by the amendment if the  amendment  is  not
made retrospective by express words or necessary intendment. The  fact  that
the pre-existing right of appeal continues  to  exist  must,  in  its  turn,
necessarily imply that the old law which created that right of  appeal  must
also exist to support the  continuation  of  that  right.  As  the  old  law
continues to exist for the purpose of supporting the pre-existing  right  of
appeal that old law must govern the exercise and enforcement of  that  right
of appeal and there can  then  be  no  question  of  the  amended  provision
preventing the exercise of that right. The argument that the  authority  has
no option or jurisdiction to admit the appeal unless it  be  accompanied  by
the deposit of the assessed tax as required by the  amended  proviso  to  S.
22(1) of the Act overlooks the fact of existence of  the  old  law  for  the
purpose of supporting the pre-existing right and really amounts  to  begging
the question. The new proviso is wholly inapplicable  in  such  a  situation
and the jurisdiction of the authority has to be exercised under the old  law
which so continues to exist. The argument of  Sri  Ganapathy  Iyer  on  this
point, therefore, cannot be accepted."
                                                          (emphasis is ours)

23.   Thereafter, reliance  was  placed  by  the  learned  counsel  for  the
respondent on the decision rendered by this Court in Daji Saheb  v.  Shankar
Rao Vithalrao Mane, AIR 1956  SC  29.   The  factual  matrix  on  the  basis
whereof the controversy was adjudicated upon, is reflected in paragraphs  2,
3 and 4.  The same are extracted hereunder:
"2.   The original decree was on 20-12-1946. The decree of  the  High  Court
allowing the plaintiff's claim was on 8-11-1949. The defendants applied  for
leave to appeal to the Federal Court on 6-1-1950. The  High  Court  directed
the trial court to find the value of the property  which  was  the  subject-
matter of the suit at the time of the suit and on the date  of  the  passing
of the decree in appeal.

      On 22-1-1951 the lower court ascertained the value  as  stated  above.
The High Court thereafter granted leave to appeal on  1-10-1951,  overruling
the objections raised by the plaintiff to the grant of such leave.

3.    The maintainability of this appeal has been questioned  before  us  by
Mr. Dadachanji, learned counsel for the respondents, in a  somewhat  lengthy
argument. His main contention was that Art. 133 of the Constitution  applies
to the case, and  as  the  value  is  below  Rs.20,000,  no  appeal  can  be
entertained.  It is the  correctness  of  this  argument  that  we  have  to

4.    On the date of the decree of the High  Court,  the  defendants  had  a
vested right of appeal to the Federal Court, as the properties were  of  the
requisite value, and on 6-1-1950 they  sought  a  certificate  of  leave  to
appeal, which was bound to be granted.  The  Constitution  establishing  the
Supreme Court as the final appellate authority for India came into force  on
26-1-1950. Did the vested right become extinguished with  the  abolition  of
the Federal Court? If the court  to  which  an  appeal  lies  is  altogether
abolished without any forum substituted in its place  for  the  disposal  of
pending matters or for the lodgment of appeals, the  vested  right  perishes
no doubt.
      We have therefore to examine whether the  Constitution  which  brought
the Supreme Court into being makes  any  provision  for  an  appeal  from  a
reversing decree of the High Court prior to the  date  of  the  Constitution
respecting properties of the value of Rs. 10,000 and more being  entertained
and heard by the Supreme Court."
                                                          (emphasis is ours)

The issue raised in paragraph 4, extracted hereinabove, came to be  answered
by this Court in the following manner:
"8.   Though Art. 133 does not apply, we have still to see whether it  is  a
matter as regards which jurisdiction and  powers  were  exercisable  by  the
Federal Court immediately before the commencement of  the  Constitution.  It
is unnecessary to refer in detail to the  earlier  enactments  defining  the
jurisdiction of the Privy Council, and the Government  of  India  Act,  1935
establishing the Federal Court and conferring a limited jurisdiction on  the

      It is sufficient to point out that as the law then stood, the  Federal
Court had jurisdiction to entertain and hear appeals  from  a  decree  of  a
High Court which reversed the lower court's decree as regards properties  of
the value of more than Rs. 10,000. The aggrieved party had  a  right  to  go
before it, without any special leave being granted. It  was  a  matter  over
which jurisdiction was "exercisable" by the Federal Court.

      The Construction that it was "exercisable"  only  if  the  matter  was
actually pending before the Federal Court and that it could not be  said  to
be pending until the appeal is declared admitted  under  Order  XLV  of  the
Civil Procedure Code is too narrow, and does not give full and proper  scope
to the meaning of the word "exercisable" in  the  Article.  Pending  matters
are dealt with under article 374(2), and we must give some  meaning  to  the
provisions of Art. 135.

      As soon as the decree of the  High  Court  came  into  existence,  the
jurisdiction of the Federal Court to hear an appeal from that decree  became
exercisable, provided certain conditions as to  security  and  deposit  were
complied with, which are not material for our present purpose.

9.    Reference may be made here to paragraph 20 of the Adaptation  of  Laws
Order, 1950, as amended in 1951, which provides:

"Nothing in this Order shall affect the previous operation of,  or  anything
duly done or suffered under, any existing  law,  or  any  right,  privilege,
obligation or liability already acquired,  accrued  or  incurred  under  any
such law....."

      By this Order section 110, Civil PC was adapted to the  new  situation
but the requirement as to value was raised from 10,000 to 20,000.   What  is
provided is that this  adaptation  will  not  affect  the  right  of  appeal
already accrued.

10.   If we accede to the argument urged by the  respondents,  we  shall  be
shutting out altogether a large number of appeals, where the parties had  an
automatic right to go before the Federal Court before the  Constitution  and
which we must hold was taken away from them  for  no  fault  of  their  own,
merely because the Supreme  Court  came  into  existence  in  place  of  the
Federal Court.
       An  interpretation  or  construction  of  the   provisions   of   the
Constitution which would lead to such a result  should  be  avoided,  unless
inevitable. The Full Bench decision of the Madras High Court in  -  Veeranna
v. G. China Venkanna, AIR 1953 Mad. 878 (A), was a case where the decree  of
the High Court and the application for leave to appeal were both  after  the
Constitution came into force.
      Whether in all matters  where  there  was  a  right  of  appeal  under
section 110 of the Civil PC it continues  in  respect  of  all  suits  filed
prior to the Constitution is a question that does  not  arise  for  decision
                                                          (emphasis is ours)

Based on the conclusions drawn by this Court, as have been extracted  above,
learned counsel vehemently contested the contention advanced  on  behalf  of
the appellant, that after the amendment of Section 15Z of the SEBI Act,  the
right of second appeal had not been fully preserved.  In this behalf it  was
pointed out, that under the  unamended  Section  15Z,  the  appellate  right
extended to questions of law as well as fact,  whereas,  under  the  amended
Section 15Z, the appellate right was limited to questions of law alone.   As
such, it was submitted, that the effect of the  amendment  under  reference,
could not be described as a mere change  of  forum.   According  to  learned
counsel for the respondent, the amendment affected  the  respondent's  right
to appeal as well.
24.    We  have  given  our  thoughtful  consideration  to  the  submissions
advanced at the hands of the learned counsel  for  the  rival  parties.   We
shall now venture to  determine  the  controversy  which  has  been  debated
hereinabove.   So  as  not  to  be  required  to  repeatedly   express   one
foundational  fact,  it  would   be   pertinent   to   mention,   that   our
determination, insofar as the present  controversy  is  concerned,  is  with
reference to situations wherein, the amending provision by express words  or
by necessary implication, does  not  mandate  the  amendment  to  be  either
prospective or retrospective.  In the present case,  the  instant  situation
emerges from Section 32 of  the  Securities  and  Exchange  Board  of  India
(Amendment) Act, 2002, which is silent on the above subject.
25.   First and foremost, we shall determine the veracity of the  contention
advanced at the hands of the learned counsel for  the  appellant,  that  the
remedy of second appeal provided for in the unamended  Section  15Z  of  the
SEBI Act remained unaffected by the amendment of the said provision; and  on
the basis of the above assumption, the learned  counsel's  submission,  that
the present controversy relates to  an  amendment  which  envisaged  a  mere
change of forum.  Insofar as the instant aspect of the matter is  concerned,
it would be pertinent to mention, that a right of appeal can be  availed  of
only when it is expressly conferred.  When such a right  is  conferred,  its
parameters are also laid down.  A right of appeal  may  be  absolute,  i.e.,
without any limitations.   Or,  it  may  be  a  limited  right.   The  above
position is understandable, from a perusal  of  the  unamended  and  amended
Section 15Z  of  the  SEBI  Act.   Under  the  unamended  Section  15Z,  the
appellate remedy  to  the  High  Court,  against  an  order  passed  by  the
Securities Appellate Tribunal, was circumscribed by  the  words  "...on  any
question of fact or law arising out of such order.".   The  amended  Section
15Z, while altering the appellate forum from the High Court to  the  Supreme
Court, curtailed and restricted the scope of the appeal,  against  an  order
passed by the Securities Appellate Tribunal, by expressing that  the  remedy
could be availed of "...on any question of law arising out of such  order.".
 It is, therefore apparent, that  the  right  to  appeal,  is  available  in
different packages, and that, the  amendment  to  Section  15Z,  varied  the
scope of the second appeal provided under the SEBI Act.
26.   As illustrated above, an appellate remedy is  available  in  different
packages.  What falls within the parameters of the package  at  the  initial
stage of the lis or dispute, constitutes the vested  substantive  right,  of
the concerned litigant.  An aggrieved party, is entitled to  pursue  such  a
vested substantive right, as and when,  an  adverse  judgment  or  order  is
passed.  Such a vested substantive right can be taken away by an  amendment,
only when the amended provision, expressly or by  necessary  intendment,  so
provides.  Failing which, such a vested substantive  right  can  be  availed
of, irrespective of the law which prevails,  at  the  date  when  the  order
impugned is passed, or the date when the appeal is preferred.  For,  it  has
repeatedly been declared by this Court, that the legal pursuit of a  remedy,
suit, appeal and second appeal, are steps in  a  singular  proceeding.   All
these steps, are connected by an intrinsic unity, and are  regarded  as  one
legal proceeding.
27.   Where the appellate package, as in  the  present  case,  is  expressed
differently at the "pre" and "post" amendment stages, there  could  only  be
two eventualities.  Firstly,  the  pre-amendment  appellate  package,  could
have been decreased by the amendment.  Or alternatively, the  post-amendment
package, could  have  been  increased  by  the  amendment.   In  the  former
situation, all that was available earlier, is now not available.   In  other
words, the right of an individual to the appellate  remedy,  stands  reduced
or  curtailed.   In  the  latter  situation,  the  amendment  enhances   the
appellate package.  The appellate remedy available prior to  the  amendment,
stands included in the amendment, and some further addition  has  been  made
thereto.  In the latter stage, all that was available earlier  continues  to
subsist.  The two situations contemplated hereinabove, will  obviously  lead
to different consequences, because in the  former  position,  the  amendment
would adversely affect the right, as was available earlier.  In  the  latter
position, the amendment would  not  affect  the  right  of  appeal,  as  was
available earlier, because the earlier package  is  still  included  in  the
amended package.
28.   In the facts and circumstances of  this  case,  it  is  apparent  that
Section 15Z of the SEBI Act prior to  the  amendment,  postulated  that  the
appellate remedy would extend to "...any question of  fact  or  law  arising
out  of  such  order.".   Whereas,  the  appellate  remedy   was   curtailed
consequent upon the amendment, whereunder the appellate  right  was  limited
to, "...any question of law arising out of such  order.".   Accordingly,  by
the amendment, the earlier appellate package stands reduced,  because  under
the amended Section 15Z, it is not open  to  an  appellant,  to  agitate  an
appeal on facts.  That being the position, it is  not  possible  for  us  to
accept the contention advanced at the hands of the learned counsel  for  the
appellant, that the amendment to Section 15Z  of  the  SEBI  Act,  envisages
only an amendment of the forum, where the second appeal would lie.   In  our
considered view, the amendment to  Section  15Z  of  the  SEBI  Act,  having
reduced the  appellate  package,  adversely  affected  the  appellate  right
vested of the concerned litigant.   The  right  of  appeal  being  a  vested
right, the appellate package, as was available at the  commencement  of  the
proceedings, would continue to vest in the parties engaged in  a  lis,  till
the eventual culmination of  the  proceedings.   Obviously,  that  would  be
subject to an amendment expressly or impliedly, providing to  the  contrary.
Section 32 of the Securities and Exchange Board of  India  (Amendment)  Act,
2002, which has been extracted in paragraph  12  hereinabove  reveals,  that
the  'repeal  and  saving'  clause,  neither  expressly  nor  impliedly,  so
provides.  Thus viewed, we are constrained to conclude, that  the  assertion
advanced at the hands of the learned counsel for  the  appellant,  that  the
instant amendment to Section 15Z of  the  SEBI  Act,  does  not  affect  the
second appellate remedy, but  merely  alters  the  forum  where  the  second
appellate remedy would lie, is not acceptable.
29.   Having concluded, that the remedy  of  second  appeal  vested  in  the
respondent has not been preserved, in the same format as  it  was  available
to the respondent, at  the  time  of  initiation  of  the  lis  between  the
parties; and also having concluded, that the scope of the  appellate  remedy
has been diminished by the amendment, we  are  satisfied  in  holding,  that
amendment to Section 15Z of the SEBI Act adversely affected the  respondent,
of  a  vested  substantive  appellate  right,  as  was  available   to   the
respondent, at the commencement of the lis  or  dispute  between  the  rival
parties.  Having recorded the aforesaid conclusion, based on  the  judgments
relied upon by the learned counsel  for  the  appellant,  as  also,  by  the
learned counsel for the respondent, it is inevitable to conclude,  that  the
appellate remedy available to the  respondent  prior  to  the  amendment  of
Section 15Z  of  the  SEBI  Act,  must  continue  to  be  available  to  the
respondent, despite the  amendment.   We  accordingly  hold,  that  all  the
appeals preferred by the Board, before the High Court, were maintainable  in
30.   Having recorded our conclusion, as has been noticed in  the  foregoing
paragraph, it is apparent,  that  insofar  as  the  vesting  of  the  second
appellate remedy is concerned, neither the date  of  filing  of  the  second
appeal, nor the date  of  hearing  thereof,  is  of  any  relevance.   Legal
pursuit of a remedy,  suit,  appeal  and  second  appeal,  are  steps  in  a
singular  proceeding.   All  these  steps  are  deemingly  connected  by  an
intrinsic unity, which are treated as one singular  proceeding.   Therefore,
the relevant date when the appellate remedy (including the second  appellate
remedy) becomes vested in the parties to the  lis,  is  the  date  when  the
dispute/lis is initiated.  Insofar as the present controversy is  concerned,
it is not a matter of dispute, that the Securities  Appellate  Tribunal  had
passed the impugned order (which was assailed by  the  Board),  well  before
29.10.2002.  This singular fact itself, would lead to the  conclusion,  that
the lis between the parties, out of which the second  appellate  remedy  was
availed of by the Board before the High Court, came  to  be  initiated  well
before the amendment to Section 15Z by the Securities and Exchange Board  of
India (Amendment) Act, 2002.  Undisputedly, the  unamended  Section  15Z  of
the SEBI Act, constituted the appellate package and  the  forum  of  appeal,
for the parties herein.  It is, therefore, not possible for  us  to  accept,
the contention advanced  at  the  hands  of  the  learned  counsel  for  the
appellant, premised on  the  date  of  filing  or  hearing  of  the  appeal,
preferred by the Board, before the High  Court.   We  accordingly  reiterate
the position expressed above, that all the appeals preferred by  the  Board,
before the High Court, were maintainable in law.
31.   It was also the contention of the learned counsel for  the  appellant,
that in the absence of a saving clause, the  pending  proceedings  (and  the
jurisdiction of the High Court), cannot be deemed to have  been  saved.   It
is not possible for us to accept the instant contention.   In  the  judgment
rendered  by  this  Court  in  Ambalal  Sarabhai  Enterprises  Limited  case
(supra), it was held, that the general  principle  was,  that  a  law  which
brought about a change in the  forum,  would  not  affect  pending  actions,
unless the intention to the contrary was clearly shown.  Since the  amending
provision herein, does not so envisage, it has to  be  concluded,  that  the
pending appeals (before the amendment of Section 15Z) would not be  affected
in any manner.  Accordingly, for the same reasons as have been expressed  in
the above judgment (relevant extracts whereof have been  reproduced  above),
we are of the view, that the instant contention advanced  at  the  hands  of
the learned counsel for the appellant is wholly misconceived.   Furthermore,
the instant contention  is  wholly  unacceptable  in  view  of  the  mandate
contained in Section 6(c) and (e) of the General Clauses Act,  1897.   While
interpreting  the  aforesaid  provisions  this  Court  has  held,  that  the
amendment of a statute, which is not retrospective in  operation,  does  not
affect pending proceedings, except where the  amending  provision  expressly
or by necessary intendment provides otherwise.  Pending proceedings  are  to
continue as if the unamended provision is still in force.   This  Court  has
clearly concluded, that when a lis commences, all rights and obligations  of
the parties get crystallized on that date, and the mandate of Section  6  of
the General Clauses Act, simply ensures, that pending proceedings under  the
unamended  provision  remain  unaffected.   Herein  also,   therefore,   our
conclusion is the same as has already been rendered by us, in the  foregoing
32.   Having concluded in the manner expressed in the foregoing  paragraphs,
it is not necessary for us to examine the main contention, advanced  at  the
hands of the learned counsel for the appellant, namely, that  the  amendment
to Section 15Z of the SEBI Act, contemplates a mere change of forum  of  the
second appellate remedy.  Despite the aforesaid, we  consider  it  just  and
appropriate, in the facts and circumstances of the present  case,  to  delve
on the above subject as well.  In dealing with the  submission  advanced  at
the hands of the learned counsel  for  the  appellant,  on  the  subject  of
forum, we will fictionally presume, that the amendment  to  Section  15Z  by
the Securities and Exchange Board of India  (Amendment)  Act,  2002  had  no
effect on the second appellate remedy made available  to  the  parties,  and
further that, the above amendment merely alters  the  forum  of  the  second
appeal, from the High Court (under the unamended provision), to the  Supreme
Court (consequent upon the amendment).  On  the  above  assumption,  learned
counsel for the appellant had placed reliance on, the decisions rendered  by
this Court in Maria Cristina De Souza Sodder,  Hitendra  Vishnu  Thakur  and
Thirumalai Chemicals Ltd. cases (supra) to contend, that  the  law  relating
to forum being procedural in nature, an amendment which altered  the  forum,
would apply  retrospectively.   Whilst  the  correctness  of  the  aforesaid
contention cannot be doubted, it is essential to clarify, that the  same  is
not an absolute rule.   In  this  behalf,  reference  may  be  made  to  the
judgments relied upon by the learned counsel for the  respondent,  and  more
importantly to the judgment rendered in Commissioner of Income  Tax,  Orissa
case (supra), wherein it has been explained,  that  an  amendment  of  forum
would not necessarily be an issue of procedure.  It  was  concluded  in  the
above judgment, that where the question is of change of forum, it ceased  to
be  a  question  of  procedure,  and  becomes  substantive  and  vested,  if
proceedings stand initiated before the earlier prescribed  forum  (prior  to
the amendment having taken effect).  This  Court  clearly  declared  in  the
above judgment, that if the appellate remedy had  been  availed  of  (before
the forum expressed in the unamended provision) before  the  amendment,  the
same would constitute a vested right.  However, if the  same  has  not  been
availed of, and  the  forum  of  the  appellate  remedy  is  altered  by  an
amendment,  the  change  in  the  forum,  would  constitute   a   procedural
amendment,  as  contended  by  the  learned  counsel  for   the   appellant.
Consequently even in the facts and circumstances of the  present  case,  all
such appeals as had been filed by the  Board,  prior  to  29.10.2002,  would
have to be accepted as vested, and must be adjudicated accordingly.
33.   The conclusion recorded by us in the foregoing paragraph emerges  even
from the mandate contained in Section 6 of the General  Clauses  Act,  1897.
The legal contours emerging out of Section 6  aforementioned,  have  already
been recorded by us, and need not be repeated.
34.   For the reasons recorded hereinabove, we find no merit in this  appeal
and the same is accordingly dismissed.  It is, however, necessary for us  to
record, that the impugned order was passed with reference  to  a  number  of
appeals, which were preferred by  the  Board,  as  against  a  common  order
passed by the Securities Appellate Tribunal.  In the  impugned  order,  some
of the appeals preferred by the Board were held as maintainable  before  the
High Court, whilst a different view was  expressed  with  reference  to  the
appeals preferred by the Board after 29.10.2002.  We  have  concluded,  that
all appeals preferred by the respondent herein, before the High Court,  were
maintainable.  In exercise of our jurisdiction  under  Article  142  of  the
Constitution of India, we direct, that the instant order passed by us  would
govern all cases which were disposed  of  by  the  High  Court  through  the
impugned order dated 13.10.2003.
35.   Disposed of accordingly.

                                             (Jagdish Singh Khehar)

                                             (M.Y. Eqbal)

New Delhi;
January 13, 2015.

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