1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 3766-3767 of 2020
Neena Aneja & Anr. .... Appellants
Versus
Jai Prakash Associates Ltd. .... Respondent
2
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
Index
A. Background
B. Submissions
B.1. Submissions of the appellants
B.2. Submissions of the respondent
C. Position of law on change of forum: An analysis of precedent
C.1. Venugopala Reddiar (1943- Federal Court 3 judges)
C.2. Kiran Singh v. Chaman Paswan (1954- Supreme Court 4 judges)
C.3. Garikapati (1957- Supreme Court Constitution Bench)
C.4. Mohd. Idris (1965- Supreme Court Constitution Bench)
C.5. Manujendra Dutt (1966- Supreme Court 2 judges)
C.6. New India Assurance (1975- Supreme Court 3 judges)
C.7. Maria Cristina (1978- Supreme Court 2 judges)
C.8. Hitendra Vishnu Thakur (1994- Supreme Court 2 judges)
C.9. Sudhir G Angur (2005- Supreme Court 3 judges)
C.10. Ramesh Kumar Soni (2013- Supreme Court 2 judges)
C.11. Dhadi Sahu (1992- Supreme Court 2 judges)
C.12. Ambalal Sarabhai (2001- Supreme Court 2 judges)
C.13. HP State Electricity (2013- Supreme Court 2 judges)
C.14. Videocon International (2015- Supreme Court 2 judges)
C.15. SEBI v. Classic Credit (2018- Supreme Court 2 judges)
C.16. Swapna Mohanty (2018- Supreme Court 2 judges)
C.17. Om Prakash Agarwal (2018- Supreme Court 2 judges)
C.18. Delhi High Court Bar Association (1993- Delhi HC-DB)
3
C.19. Mahendra Jain (2008- Bombay HC-DB)
C.20. Vallabhaneni (2004- Andhra Pradesh HC- 5 judges)
C.21. Gobardhan Lal Soneja (1991-Patna HC-FB)
C.22. Y.B. Ramesh (2010-Karnataka HC-SJ)
C.23. Conclusion on the position of law
D. Legislative Scheme of the jurisdictional provisions
E. Legislative intendment underlying Section 107 of the Act of 2019
F. Summation
PART A
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A Background
1. On being enacted by Parliament, the Consumer Protection Act 20191 was
published in the Gazette of India on 9 August 20192
. By S.O. 2351(E) dated 15
July 2020, the material provisions of the Act of 2019 were notified to come into
force on 20 July 2020. By S.O. 2421(E) dated 23 July 2020 several other
provisions were brought into force, with effect from 24 July 2020. The appellants
instituted a consumer case3 before the National Consumer Disputes Redressal
Commission4 on 18 June 2020. The consumer case was instituted under the
provisions of the erstwhile legislation, the Consumer Protection Act 19865
. The
NCDRC by its order dated 30 July 2020 dismissed the consumer case on the
ground that after the enforcement of the Act of 2019, its pecuniary jurisdiction has
been enhanced from rupees one crore to rupees ten crores. The appellants’
review petition was also dismissed by the NCDRC on 5 October 2020. In the
present case, the claim of Rs. 2.19 crores is below the enhanced pecuniary
jurisdiction of the NCDRC.
2. The complainants in the consumer case are in appeal.
3. The issue which arises in the appeals is whether a complaint which was
filed and registered under the Act of 1986, before the new Act of 2019 came into
force, has to be entertained under the provisions of the erstwhile legislation. In
anticipation of the enforcement of the Act of 2019, an administrative notice was
1 “Act of 2019” 2 The Act was published in the Gazette of India Extraordinary, Part II, Section 1, No. 54 dated 9
August 2019
3
Consumer Case no.566 of 2020 (NCDRC) 4 “NCDRC”
5 “Act of 1986”
PART A
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issued by the NCDRC on 17 July 2020 to allow the functioning of its registry for
fresh filings on 18 July 2020, since the new law was to come into force on 20 July
2020. The appellants are also aggrieved by the fact that contrary to the position
taken in its case, other Benches of the NCDRC have admitted complaints
instituted before 20 July 2020. This grievance apart, the issue which arises in the
appeals would turn upon a construction of Section 107 of the Act of 2019, among
other provisions of the new legislation, and its interplay with Section 6 of the
General Clauses Act 18976
. The analysis of the Court, despite the new
legislation, will not proceed on a clean slate for there is precedent which holds
the field. That both sides rely upon the line of precedent in the unfolding of their
cases makes the interpretational task intricate. Our task will be to bring a solution
that has a sense of cohesion, while harmonizing precedential learning with
justice.
4. A brief narration of the facts would assist with context. Upon the payment
of an advance of Rs.3.50 lacs on 25 November 2011 by the appellants, the
respondent provisionally allotted a residential unit in a real-estate project
described as KRESCENT Homes admeasuring a super built area of 114.27
square metres which was being developed by the respondent at Jaypee Greens,
Noida. The total consideration was fixed at Rs.56.45 lacs and possession was
intended to be conveyed within a period of 42 months from the execution of the
agreement of the provisional allotment letter. The appellants have stated that
between December 2011 till date, they have paid an amount of Rs. 53.84 lacs out
of the total consideration of Rs.56.45 lacs.
6 “General Clauses Act”
PART A
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5. On 13 June 2017 and 27 April 2020, the appellant sought a refund of the
consideration together with interest at 18 per cent. On 18 June 2020, the
appellants instituted a consumer complaint before the NCDRC for refund with
interest. The consumer complaint has been dismissed by an order dated 30 July
2020 for want of pecuniary jurisdiction. A single member Bench of the NCDRC
held that following the enforcement of the Act of 2019 on 20 July 2020, the limits
of its pecuniary jurisdiction stands enhanced from rupees one crore to rupees ten
crores and the complaint instituted by the appellants is consequently not
maintainable. The appellants instituted a petition seeking a review of the order.
The review petition was dismissed on 5 October 2020 leading to the institution of
the appeal before this Court.
6. Section 21 of the Act of 1986 provided for the jurisdiction of the NCDRC:
“Jurisdiction of the National Commission. — Subject to
the other provisions of this Act, the National Commission shall
have jurisdiction—
(a) to entertain—
(i) complaints where the value of the goods or services
and compensation, if any, claimed exceeds
rupees one crore; and
(ii) appeals against the orders of any State Commission;
and
(b) to call for the records and pass appropriate orders in any
consumer dispute which is pending before or has been
decided by any State Commission where it appears to the
National Commission that such State Commission has
exercised a jurisdiction not vested in it by law, or has failed to
exercise a jurisdiction so vested, or has acted in the exercise
of its jurisdiction illegally or with material
irregularity.” (emphasis supplied)
PART A
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7. Under the Act of 1986, the enhancement of the pecuniary limits of the
jurisdiction of the NCDRC to rupees one crore came in substitution of rupees
twenty lacs with effect from 15 March 2003 as a result of Act 62 of 2002. Earlier
the limit of rupees twenty lacs was substituted by Act 50 of 1993 for rupees ten
lacs with effect from 18 June 1993.
8. Under Section 11, the jurisdiction of the District Commission to entertain
original complaints was rupees twenty lacs7
. Under Section 17, the State
Consumer Disputes Redressal Commission8 had jurisdiction to entertain
complaints where the value of the goods and services or compensation if any
claimed exceeds rupees twenty lacs but does not exceed rupees one crore9
.
9. The Act of 2019 was enacted by Parliament taking into account the
experience which was gained in the administration of the earlier legislation and to
meet new developments in the market place for products and services. The
Statement of Objects and Reasons accompanying the introduction of the Bill in
Parliament elucidates the rationale for the new law:
“Statement of Objects and Reasons
The Consumer Protection Act, 1986 (68 of 1986) was
enacted to provide for better protection of the interests of
consumers and for the purpose of making provision for
establishment of consumer protection councils and other
authorities for the settlement of consumer disputes, etc.
Although, the working of the consumer dispute redressal
agencies has served the purpose to a considerable extent
under the said Act, the disposal of cases has been fast due to
7 The pecuniary limits were enhanced from rupees one lac to rupees five lacs by Act 50 of 1983 with
effect from 18 June 1993. The limits were enhanced from rupees five lacs to rupees twenty lacs by
Act 62 of 2002 with effect from 15 March 2003.
8 “SCDRC” 9 By Act 62 of 2002, these limits had been enhanced from the previous limits of rupees five lacs –
rupees 20 lacs
PART A
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various constraints. Several shortcomings have been noticed
while administering the various provisions of the said Act.
2. Consumer markets for goods and services have
undergone drastic transformation since the enactment of the
Consumer Protection Act in 1986. The modern market place
contains a plethora of products and services. The emergence
of global supply chains, rise in international trade and the
rapid development of e-commerce have led to new delivery
systems for goods and services and have provided new
options and opportunities for consumers. Equally, this has
rendered the consumer vulnerable to new forms of unfair
trade and unethical business practices. Misleading
advertisements, tele-marketing, multi-level marketing, direct
selling and e-commerce pose new challenges to consumer
protection and will require appropriate and swift executive
interventions to prevent consumer detriment. Therefore, it has
become inevitable to amend the Act to address the myriad
and constantly emerging vulnerabilities of the consumers. In
view of this, it is proposed to repeal and reenact the Act.
3. Accordingly, a Bill, namely, the Consumer Protection
Bill, 2018, was introduced in Lok Sabha on the 5th January,
2018 and was passed by that House on the 20th December,
2018. While the Bill was pending consideration in Rajya
Sabha, the Sixteenth Lok Sabha was dissolved and the Bill
got lapsed. Hence, the present Bill, namely, the Consumer
Protection Bill, 2019.
4. The proposed Bill provides for the establishment of an
executive agency to be known as the Central Consumer
Protection Authority (CCPA) to promote, protect and enforce
the rights of consumers; make interventions when necessary
to prevent consumer detriment arising from unfair trade
practices and to initiate class action including enforcing recall,
refund and return of products, etc. This fills an institutional
void in the regulatory regime extant. Currently, the task of
prevention of or acting against unfair trade practices is not
vested in any authority. This has been provided in a manner
that the role envisaged for the CCPA complements that of the
sector regulators and duplication, overlap or potential conflict
is avoided.
5. The Bill envisages provisions for product liability
action on account of harm caused to consumers due to a
defective product or by deficiency in services. Further,
provision of “Mediation” as an Alternate Dispute Resolution
Mechanism has also been provided.
6. The Bill provides for several provision aimed at
simplifying the consumer dispute adjudication process of the
PART A
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Consumer Disputes Redressal Agencies, inter alia relating to
enhancing the pecuniary jurisdiction of the Consumer
Disputes Redressal Agencies; increasing minimum number of
Members in the State Consumer Disputes Redressal
Commissions and provisions for consumers to file complaints
electronically, etc.
7. The Bill seeks to achieve the above objectives.”
10. Section 28(1) provides for the establishment of a District Consumer
Disputes Redressal Commission10 in every district, subject to its establishment by
a notification of the State Government11. The jurisdiction of the District
Commission in terms of Section 34 is to entertain complaints where the value of
goods and services paid as consideration does not exceed one crore rupees.
Section 42 provides for the establishment of a SCDRC in each State. The
pecuniary limits of the original jurisdiction of the SCDRC under Section 47(1)(a) is
to entertain original complaints where the value of goods and services paid as
consideration exceeds rupees one crore but does not exceed rupees ten crores.
Section 53 provides for the establishment of the NCDRC. Section 58(1)(a)
contains the pecuniary limits of the jurisdiction of the NCDRC, which in the case
of original complaints is where the value of goods and services paid as
consideration exceeds rupees ten crores.
10 “District Commission” 11 28. (1) The State Government shall, by notification, establish a District Consumer Disputes
Redressal Commission, to be known as the District Commission, in each district of the State:
Provided that the State Government may, if it deems fit, establish more than one District Commission
in a district.
(2) Each District Commission shall consist of—
(a) a President; and
(b) not less than two and not more than such number of members as may be prescribed, in
consultation with the Central Government.
PART A
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11. Section 107 contains the repeal and savings provision, which is in the
following terms:
“107. Repeal and savings-
(1) The Consumer Protection Act, 1986 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action
taken or purported to have been done or taken under the Act
hereby repealed shall, in so far as it is not inconsistent with the
provisions of this Act, be deemed to have been done or taken
under the corresponding provisions of this Act.
(3) The mention of particular matters in sub-section (2) shall
not be held to prejudice or affect the general application of
section 6 of the General Clauses Act, 1897 with regard to the
effect of repeal.”
In terms of sub-section (1) of Section 107, the Act of 1986 stands repealed. Subsection (2) is prefaced with a non obstante provision. Under sub-section (2)
anything done or any action taken or purported to have been done or taken under
the repealed legislation is deemed to have been done or taken under the
corresponding provision of the new legislation, insofar as it is not inconsistent
with the latter provisions. Sub-section (3) of Section 107 stipulates that the
specification of the matters contained in sub-section (2) does not prejudice or
affect the general application of Section 6 of the General Clauses Act (with
regard to the effect of repeal). Having repealed, the Act of 1986, the new
legislation has also made transitional provisions in Section 3112, Section 4513 and
12 31. Transitional provision: Any person appointed as President or, as the case may be, a member of
the District Commission immediately before the commencement of this Act shall hold office as such
as President or, as the case may be, as member till the completion of his term for which he has been
appointed.
13 45. Transitional provision: Any person appointed as President or, as the case may be, a member of
the State Commission immediately before the commencement of this Act shall hold office as such, as
President or member, as the case may be, till the completion of his term.
PART A
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Section 5614 for the continuance of persons appointed as members of the District
Commission, the SCDRC and the NCDRC under the erstwhile legislation.
14 56. Transitional provision: The President and every other member appointed immediately before
the commencement of section 177 of the Finance Act, 2017 shall continue to be governed by the
provisions of the Consumer Protection Act, 1986 and the rules made thereunder as if this Act had not
come into force.
PART B
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B Submissions
B.1 Submissions of the appellants
12. Mr P Vinay Kumar, learned Counsel appearing on behalf of the appellants
urged the following submissions in support of the appeal:
(i) Section 107(3) of the Act of 2019 gives full effect to the provisions of
Section 6 of the General Clauses Act, which means that nothing in the
repeal of the earlier legislation will affect pending proceedings which may
continue as if the new legislation has not been enacted. Under the Act of
2019, the jurisdiction has been conferred on the SCDRC to hear
complaints under the new Act. In order to vest the SCDRC with jurisdiction
to hear complaints which were instituted before the NCDRC under the old
Act, a specific provision for transferring the proceedings was requiredwhich has not been provided. This is not the case where a statute has
been amended by enhancement of pecuniary jurisdiction but involves the
repeal of an old statute in which event a provision for transferring the
cases to the new forum is essential;
(ii) The new Act of 2019 affects substantive and vested rights and must
necessarily be prospective; and
(iii) The new legislation does not contain any provision for its retrospective
operation.
A. Elaborating on the first limb of submissions, learned counsel urged that in
several decisions of this Court, Section 6 of the General Clauses Act was
PART B
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applied by the Court in order to save existing proceedings. In the present
case, the law makers have specifically incorporated the applicability of
Section 6 of the General Clauses Act, by making a provision in Section
107(3) of the Act of 2019. The question of examining the existence of
vested rights arises only where there is a doubt over a savings provision or
when Section 6 has not been made specifically applicable. In such cases,
the Court has to scrutinize whether a vested right had arisen under the
repealed statute, in which event the pending proceedings would be saved.
However, where Section 6 is applicable, it covers a wider field so as to
save not only vested rights but all rights covered by clauses (a) to (e) of
Section 6.
B. The next limb of the submissions is that substantial changes have been
made in the provisions for appeal contained in the Act of 2019. For
instance, the second proviso to Section 19 of the Act of 1986 required an
aggrieved person to either deposit 50 per cent of the amount awarded by
the SCDRC or Rs 25,000, whichever is less. However, in the Act of 2019,
the second proviso to Section 51(1) stipulates that an appeal shall not be
entertained by the NCDRC unless the appellant has deposited 50 per cent
of the amount required under the order of the SCDRC. This provision
substantially affects the vested right of a litigant and is not merely
procedural in nature. In Garikapati Veeraya v. N Subbiah Choudhry15,
the Constitution Bench of this Court has held that a right of appeal is not a
mere matter of procedure but is a substantive right and that the institution
15 “Garikapati”; 1957 SCR 488
PART B
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of a suit carries with it the implication that all rights of appeal then in force
are preserved. Such a vested right can only be taken away either
expressly or by necessary implication. Hence, the relevant date is the date
of the institution of the suit and not when the case comes for hearing or for
decision. In the present case, the earlier legislation was in force when the
complaint was filed and hence the rights and obligations which accrued on
that date would stand saved. As a result of the Act of 2019, a statutory
appeal which was provided to the complainant to the Supreme Court
against an order of the NCDRC has been taken away by stipulating that
matters which will lie before the SCDRC will only be amenable to appeal
before the NCDRC. From the thirty one Sections in the Act of 1986, the Act
of 2019 has legislated for one hundred and seven Sections which in itself
indicates that the change is not merely procedural, but substantial.
C. The third limb of submissions is that there is no provision for transfer of
pending cases in the new Act of 2019. Under Section 47 of the Act of
2019 of the new legislation, the jurisdiction of the SCDRC is to entertain
complaints under the Act of 2019 above a certain value. The jurisdiction to
entertain complaints under the erstwhile legislation could only have been
conferred by an express statutory provision that transferred complaints
filed under the old Act from the NCDRC to the SCDRC. Any direction for
the transfer of existing cases would entail disturbing thousands of cases
pending before the NCDRC and SCDRCs across the country. This would
cause serious hardship and prejudice to consumers and a waste of judicial
time invested till date. A similar question was dealt with by the NCDRC in
PART B
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its Judgment 8 April 2011 in Southfield Paints and Chemicals Pvt. Ltd.
v. New India Assurance Co. Ltd.16 which construed Amending Act 62 of
2002 by which the pecuniary limits of jurisdiction were enhanced with
effect from 15 March 2003. Relying on the earlier decision in Premier
Automobiles Ltd. v. Dr Manoj Ramachandran17, the NCDRC held that
the amendments enhancing the pecuniary jurisdiction were prospective in
nature. The legislature must be considered to be aware of this precedent.
D. Finally, it was urged that the Act of 2019 came into force on July 2020
while the complaint in the present case was instituted before the NCDRC
on 18 June 2020. The dismissal of the complaint for want of pecuniary
jurisdiction is in contravention of the administrative notice dated 17 July
2020 of the NCDRC. The administrative directions were complied with by
other Benches of the NCDRC which have admitted a number of complaints
instituted under the Consumer Protection Act 1986.
E. In sum and substance, therefore, it has been urged that:
(i) Section 107 of the Act of 2019 read with Section 6 of the General
Clauses Act saves pending legal proceedings; hence the complaint
which was filed before the enforcement of the new legislation should
be allowed to proceed before the NCDRC under the Act of 1986;
(ii) The relevant date is the date of the institution of the complaint and
not the date when the matter is heard or decided;
16 Consumer Case No. 286 of 2000 (NCDRC) 17 Revision Petitions Nos 400 to 402 of 1993 (NCDRC)
PART B
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(iii) The new legislation affects substantive rights of appeal to the
NCDRC by making a deposit of 50 per cent of the decretal amount
mandatory;
(iv) In the absence of an express provision, the new legislation must
operate prospectively; and
(v) In the absence of a provision for transfer of pending cases,
complaints which were instituted prior to the enforcement of the Act
of 2019 should not be disturbed.
B.2 Submissions of the respondent
13.
A. Mr Krishnan Venugopal, learned Senior Counsel appearing on behalf of
the respondent, supported the reasoning of the NCDRC and urged the following
submissions:
(i) The Statement of Objects and Reasons underlying the enactment of
the Act of 2019 indicates that:
(a) The new legislation has been enacted to strengthen the
remedies available to consumers;
(b) The legislature was conscious of the delays in the disposal of
cases under the erstwhile legislation; and
(c) While enacting the new law, a conscious decision was taken
to enhance the pecuniary limits of the jurisdiction of the
District Commission, SCDRC and NCDRC to ensure that the
PART B
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large proportion of cases can be resolved in the fora situated
close to the complainants;
(ii) The purpose of the Act of 2019, as envisaged in the Statement of
Objects and Reasons, is further emphasized under Section 2(9)(iv) of
the Act of 2019 under which consumer rights have been defined to
include "the right to be heard and be assured that consumer interests
will receive due consideration at appropriate fora”;
(iii) Sections 28, 42 and 53 provide for the establishment of the District
Commission, SCDRC and NCDRC. Under Section 58(1)(a), the
NCDRC is empowered to entertain complaints where the value of
goods or services paid as consideration exceeds rupees ten crores.
The expression ‘entertain’ has been construed in a broad and
comprehensive sense to mean ‘to adjudicate upon’ in the decision of
this Court in Nusli Neville Wadia v. Ivory Properties18;
(iv) The basic principle of law is that when a statute is repealed,
everything stands obliterated. Section 107(2) of the Act of 2019
covers concluded transactions while Section 107(3) preserves the
application of Section 6 of the General Clauses Act. Section 6 is
prefaced with the words "unless a different intention appears".
Clause (c) of Section 6 is substantive in nature while clause (e)
applies to pending proceedings. The precedents of this Court would
indicate that Section 6(e) has been interpreted as extending to
substantive proceedings, but a pure matter of procedure is excluded.
18“Nusli Neville”; (2020) 6 SCC 557: at paras 35 and 36
PART B
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A change of forum, like matters of evidence and civil procedure is a
pure matter of procedure. Section 6(e) would hence not be applicable
where a new legislation results in a change of forum;
(v) Where a law takes away a right of action or appeal, it is treated as a
substantive alteration and does not apply to pending actions. A mere
change in forum is to be distinguished from a substantive alteration.
The Act of 2019 is a law which repeals the earlier legislation and
created a new hierarchy of courts and it must, consequentially, be
treated as retroactive;
(vi) The right of appeal is a substantive right which accrues at the date of
the institution of a proceeding. An amendment taking away this right
imposes a substantive alteration and is therefore construed to be
prospective. This principle does not apply where there is only a
change of forum;
(vii) The Act of 2019 does not abrogate existing rights. On the contrary, it
preserves and provides for an additional right of appeal where, as a
result of the legislation, a complaint which could earlier be filed
before the NCDRC has to be filed before the SCDRC. A complaint
before the SCDRC would have to be instituted before the District
Commission. The right to appeal is therefore strengthened and not
truncated;
(viii) Section 34 empowers the District Commission with jurisdiction "to
entertain complaints" and a similar provision has been made in
Section 47(1)(a) pertaining to the SCDRC and Section 58(1)(a)
PART B
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pertaining to the NCDRC. This expression emphasizes that it applies
at every point of time when a matter is entertained for adjudication or
for consideration on merits;
(ix) The Act of 2019 abolished the old hierarchy of fora under the Act of
1986 and established adjudicatory fora afresh. The case pending
before one of the fora governed by the Act of 1986 ceases to be
pending because the Act of 2019 has, by its repeal, abolished the
existing adjudicatory bodies. Sections 28, 42 and 53 established new
adjudicatory bodies afresh under the Act of 2019. This is evident
from the provisions of Section 31, 45 and 56 under which judicial
personnel of the erstwhile fora were permitted to continue under the
Act of 2019;
(x) The Act of 2019 indicates a contrary intent within the meaning of
Section 6 of the General Clauses Act; and
(xi) The principle that a repeal of a statute obliterates the effects and
consequence of the earlier legislation, is subject to three exceptions:
(a) Concluded transactions continue to be governed by the old
law;
(b) Where a right of appeal or of action is abrogated or in a
situation where clogs are imposed on the right, such rights
continue to be preserved notwithstanding the repeal; and
(c) Where a substantive liability or a right is imposed or
conferred, this would be treated as prospective. On the other
PART B
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hand, the consistent view under Section 6 (e) is that it does
not apply to a mere change of forum.
B. The sum and substance of the submissions which were urged by Mr
Krishnan Venugopal, learned Senior Counsel is that where a law provides for a
change in forum, this is treated as a matter of procedure and not of substance.
The Act of 2019 is not a legislation merely enhancing the limits of the pecuniary
jurisdiction by an amendment to the Act of 1986. On the contrary, the Act of 2019
is a completely new law, which abolished the hierarchy of tribunals under the
erstwhile Act of 1986 and created a new adjudicatory hierarchy. As a matter of
interpretation, the Act of 2019 clearly indicates an intention to the contrary as a
result of which pending proceedings will not continue before the forums which
existed under the Act of 1986. In other words, the limits of pecuniary jurisdiction
which have been defined under the Act of 2019 will apply to all pending actions
and a transfer of existing cases would be required in those cases where the
jurisdiction to entertain the complaint lies within the pecuniary limits of the newly
established forum. In support of his submissions, Mr Venugopal relied on a line of
precedent which would be discussed while analyzing the rival contentions.
14. The rival submissions are now considered.
PART C
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C Position of law on change of forum: An analysis of precedent
C.1 Venugopala Reddiar (1943- Federal Court 3 judges)
15. The discussion on the law begins with the decision of the Federal Court in
Venugopala Reddiar v. Krishnaswami Reddiar, alias Raja Chidambara
Reddiar19 which considered the validity of a pending proceeding when the court
had lost territorial jurisdiction. Before 1937, when Burma was a part of British
India, it was permissible under Section 17 of the Civil Procedure Code to include
immovable property situated in Burma as a part of the subject matter of a suit.
The principal respondent instituted a suit for the recovery of certain properties. A
large portion of these properties was situated in Rangoon, Burma. The suit had
been instituted before the Trichinopoly Court. After Burma ceased to be a part of
India on 1 April 1937, the contesting defendants objected to the jurisdiction of the
Court to deal with the Burma property. The Trial Judge upheld the objection that it
no longer had jurisdiction over property situated in Burma. This was reversed by
a Division Bench of the Madras High Court. The Division Bench held that Article
10 of the Government of India (Adaptation of Indian Laws) Order 1937 provided
that the powers exercisable by any authority, which in the view of the High Court
would include a Court, before the separation came into force should continue to
be exercised until a contrary provision was passed by the legislature. The High
Court also held that a right to continue a duly instituted suit was in the nature of a
vested right which cannot be taken away except by a clear legislative intent.
19 AIR 1943 FC 24
PART C
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Justice Srinivasa Varadachariar summed up the legal principle at page 48 by
observing:
“..The true position, as we have already stated, is not whether
there is an express provision permitting the continuance of
pending proceedings, but whether there is any clear
indication against the continuance of pending proceedings to
their normal termination.”
In an earlier part of the judgment, the Court noted that paragraph (e) of subSection (2) of Section 38 of the Interpretation Act, 1889 provides that any legal
proceedings in respect of any right acquired or accrued under the repealed
enactment may “continue as if the repealing Act had not been passed”. Noting
that the interpretation of this paragraph is not free from difficulty, Justice
Varadachariar observed that the view has sometimes been taken that what is
saved is a substantive right acquired under the repealed enactment and that the
paragraph cannot be invoked in cases where the substantive right is not taken
away by the repealing Act but the mere forum for, or the method of enforcing it is
changed. On the other hand, the Court noted, it has been maintained that a right
to obtain a relief in a suit pending at the time when the repealing enactment
comes into operation is itself in the nature of a substantive right. Of the three
grounds which had weighed with the High Court in affirming the jurisdiction of the
Trial Court, the Federal Court rested its decision on the principle contained in the
ruling of the Privy Council in Colonial Sugar Refining Company Ltd. v. Irving20
which held that a right to appeal is a substantive right whose amendment would
generally be prospective:
“As regards the general principles applicable to the case
there was no controversy. On the one hand, it was not
20 (1905) AC 369
PART C
23
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 of 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
supplied)
The principle enunciated by the Privy Council in Colonial Sugar Refining was
reiterated.
C.2 Kiran Singh v. Chaman Paswan (1954- Supreme Court 4 judges)
16. In Kiran Singh v. Chaman Paswan21, the appellant’s suit for recovery of
land on the basis of the eviction of the defendants was dismissed by the
Subordinate Judge which was affirmed in appeal. When the matter was taken up
in second appeal to the Punjab High Court, an objection to the valuation of the
plaint was raised by the stamp reporter and the correct valuation was determined
on which the plaintiffs paid additional court fees. On the revised valuation, the
plaintiffs raised the plea that the appeal from the decree of the Subordinate
21 AIR 1954 SC 340
PART C
24
Judge would not lie to the District Court but to the High Court and that
accordingly the second appeal should be heard as a first appeal against the
judgment of the District Court. Following the Full Bench decision, the High Court
held that the appeal to the District Court was competent and its decision should
be reversed only if prejudice were shown on merits. In appeal, this Court noted
that on a plaint valuation, the appeal would lie to the District Court whereas on
the valuation as determined by the High Court, it was held that it was competent
to entertain the appeal. On this basis, it was argued the decision of the District
Court was a nullity. This Court rejected the contention that the decree was a
nullity, holding that an objection to the pecuniary jurisdiction shall not be
entertained by an Appellate Court unless there has been a consequent failure of
justice. Dealing with the argument that a prejudice had been caused to the
appellants in that by reason of the undervaluation, their appeal was heard by a
Court of inferior jurisdiction while they were entitled to a first appeal before the
High Court, this Court held:
“11. It is next contended that even treating the matter as
governed by Section 11 of the Suits Valuation Act, there was
prejudice to the appellants, in that by reason of the
undervaluation, their appeal was heard by a court of inferior
jurisdiction, while they were entitled to a hearing by the High
Court on the facts. It was argued that the right of appeal was
a valuable one, and that deprivation of the right of the
appellants to appeal to the High Court on facts must therefore
be held, without more, to constitute prejudice. This argument
proceeds on a misconception. The right of appeal is no
doubt a substantive right, and its deprivation is a serious
prejudice; but the appellants have not been deprived of
the right of appeal against the judgment of the
Subordinate Court. The law does provide an appeal
against that judgment to the District Court, and the
plaintiffs have exercised that right. Indeed, the
undervaluation has enlarged the appellants' right of
appeal, because while they would have had only a right
of one appeal and that to the High Court if the suit had
PART C
25
been correctly valued, by reason of the undervaluation
they obtained right to two appeals, one to the District
Court and another to the High Court. The complaint of
the appellants really is not that they had been deprived of
a right of appeal against the judgment of the Subordinate
Court, which they have not been, but that an appeal on
the facts against that judgment was heard by the District
Court and not by the High Court. This objection therefore
amounts to this that a change in the forum of appeal is
by itself a matter of prejudice for the purpose of Section
11 of the Suits Valuation Act.
……….
15. So far, the definition of “prejudice” has been negative
in terms — that it cannot be mere change of forum or
mere error in the decision on the merits. What then is
positively prejudice for the purpose of Section 11? That is a
question which has agitated courts in India ever since the
enactment of the section. It has been suggested that if there
was no proper hearing of the suit or appeal and that had
resulted in injustice, that would be prejudice within Section 11
of the Suits Valuation Act. Another instance of prejudice is
when a suit which ought to have been filed as an original suit
is filed as a result of undervaluation on the small cause side.
The procedure for trial of suits in the Small Cause Court is
summary; there are no provisions for discovery or inspection;
evidence is not recorded in extenso, and there is no right of
appeal against its decision. The defendant thus loses the
benefit of an elaborate procedure and a right of appeal which
he would have had if the suit had been filed on the original
side. It can be said in such a case that the disposal of the suit
by the Court of Small Causes has prejudicially affected the
merits of the case. No purpose, however, is served by
attempting to enumerate exhaustively all possible cases of
prejudice which might come under Section 11 of the Suits
Valuation Act. The jurisdiction that is conferred on appellate
courts under that section is an equitable one, to be exercised
when there has been an erroneous assumption of jurisdiction
by a subordinate court as a result of overvaluation or under
valuation and a consequential failure of justice. It is neither
possible nor even desirable to define such a jurisdiction
closely, or confine it within stated bounds. It can only be
predicated of it that it is in the nature of a revisional
jurisdiction to be exercised with caution and for the ends of
justice, whenever the facts and situations call for it. Whether
there has been prejudice or not is, accordingly, a matter to be
determined on the facts of each case.” (emphasis supplied)
PART C
26
17. Therefore, this court made a clear distinction between amendments
impacting a substantive right of appeal and amendments which merely alter
the forum where such an appeal could be urged. The latter could not be
construed as having caused a prejudice as it was not substantive in nature.
C.3 Garikapati (1957- Supreme Court Constitution Bench)
18. In Garikapati (supra), Chief Justice S R Das speaking for the Constitution
Bench, formulated the legal principles which govern this area of interpretative
jurisprudence. The decision in Garikapati (supra) is the locus classicus on
subject of the substantive right of appeal vis-à-vis pending proceedings. The five
principles which were enunciated in paragraph 23 of the decision are extracted
below:
“23….:
(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
thereto 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
supplied)
PART C
27
The Constitution Bench clarified that the right of appeal is a vested right which
cannot be taken away, absent a statutory enactment to the effect. It was also
clarified that the right to appeal would vest, once the suit is instituted.
C.4 Mohd. Idris (1965- Supreme Court Constitution Bench)
19. In Mohd. Idris v. Sat Narain22, a Constitution Bench of this Court
considered whether a pending application filed on 27 May 1952 under the UP
Agriculturist Relief Act for redemption of a mortgage was rendered incompetent
upon the passing of the UP Zamindari Abolition and Land Reforms (Amendment)
Act 1953 which was brought into force with retrospective effect on 1 July 1952.
The question, as Justice M Hidayatullah (as the learned Chief Justice then was)
formulated was, “whether the right of the plaintiff to continue the suit under the
old law was in any way impaired”. Dealing with the provisions of Section 6 of the
UP General Clauses Act 1897 (which is pari materia to the corresponding
provisions of the General Clauses Act), the Court held:
“7…The question is whether a different intention appears in
either the Abolition Act or the Amending Act 16 of 1953, for
otherwise the old proceeding could continue before the
Munsif. There is nothing in the Abolition Act which takes away
the right of suit in respect of a pending action. If there be any
doubt, it is removed when we consider that the U.P.
Agriculturist Relief Act was repealed retrospectively from July
1, 1952 only and it is not, therefore, possible to give the
repeal further retrospectivity so as to affect a suit pending
from before that date. The jurisdiction of the Assistant
Collector was itself created from July 1, 1952 and there is
no provision in the Abolition Act that pending cases were
to stand transferred to the Assistant Collector for
disposal. Such provisions are commonly found in a
statute which takes away the jurisdiction of one court
and confers it on another. From these two circumstances
it is to be inferred that if there is at all any expression of
22 “Mohd. Idris”; AIR 1966 SC 1499
PART C
28
intention, it is to keep Section 6 of the General Clauses
Act applicable to pending litigation. The doubt, if any be
left, is further removed if we consider a later amending Act,
namely, amending Act 18 of 1956. By that Act Schedule II,
which created the jurisdiction of the Assistant Collector in
suits for ejectment of asamis was replaced by another
Schedule. The entry relating to suits for ejectment of asamis,
however, remained the same. But Section 23 of the amending
Act of 1956 created a special saving which reads as follows:
“23. Saving.—(i) Any amendment made by this Act
shall not effect the validity, invalidity, effect or
consequence of anything already done or suffered, or
any right, title obligation or liability already acquired,
accrued or incurred or any jurisdiction already
exercised, and any proceeding instituted or
commenced before any court or authority prior to the
commencement of this Act shall, notwithstanding any
amendment herein made, continue to be heard and
decided by such court or authority.
(ii) An appeal, review or revision from any suit or
proceeding instituted or commenced before any court
or authority prior to the commencement of this Act
shall, notwithstanding any amendment herein made,
lie to the Court or authority to which it would have laid
if instituted or commenced before the said
commencement.”
The addition of this section clearly shows that by the
conferral of the jurisdiction upon the Assistant Collector
it was not intended to upset litigation pending before
appropriate authorities when the Abolition Act came into
force. Section 23 in terms must apply to the present case,
because if it had remained pending before the Munsif, till
1956, it is clear, the jurisdiction of the Munsif would not have
been ousted. Although it was not pending before the Munsif it
was pending before the appellate court when the 1956
Amendment Act was passed. It follows, therefore, that to such
a suit the provisions of Schedule II read with Section 200 of
the Abolition Act cannot be applied because the legislature
has in 1956 said expressly what was implicit before, namely,
that pending actions would be governed by the old law as if
the new law had not been passed. In our judgment, therefore,
the proceedings before the Munsif were with jurisdiction
because they were not affected by the passing of the
Abolition Act or the amending Act, 1953, regard being had to
the provisions of Section 6 of the U.P. General Clauses Act in
the first instance and more so in view of the provisions of
Section 23 of the amending Act, 1956 which came before the
proceedings between the parties had finally terminated. The
PART C
29
appeal must, therefore, fail. It will be dismissed with costs.”
(emphasis supplied)
20. The Constitution Bench relied on the absence of a provision for transfer of
pending actions under the repealing legislation to save the proceedings at the old
forum. The Constitution Bench observed that provisions of transfer of pending
cases are commonly found in such legislations. It is pertinent to mention that the
subsequent repealing legislation materially altered the position of the parties. The
mortgagee appellants were resisting their ejectment from the suit land by the
respondent mortgagor in a suit for redemption of mortgage on the ground that
they have become asamis or sirdars under the repealing legislation and their
ejectment can only take place in accordance with the provisions of the new Act.
Hence, the effect of the repeal was not a mere change in forum. Further, a
subsequent amendment to the repealing legislation made it clear that the pending
proceedings would be concluded at the earlier forum where they had been
instituted and under the repealed legislation.
C.5 Manujendra Dutt (1966 Supreme Court- 2 judges)
21. In Manujendra Dutt v. Purnedu Prosad Roy Chowdhury23, a two judge
Bench of this Court consisting of Chief Justice K Subba Rao and Justice J M
Shelat dealt inter alia with the jurisdiction of the Controller under the Calcutta
Thika Tenancy Act 1949, after the deletion of Section 29 by Amending Act 6 of
1953, in respect of proceedings pending before him on that date. The High Court
had taken the view that in spite of the deletion of Section 29, the jurisdiction of
23 “Manujendra Dutt” ; (1967) 1 SCR 475
PART C
30
the Controller in respect of matters pending before him on the date of the coming
into force of the Amending Act was saved. The submission which was urged
before this Court was that since it was only by reason of Section 29 that the suit
had been transferred to the Controller, the deletion of that Section from the
legislation had the effect of depriving the Controller of its jurisdiction and hence
the judgment and order, though confirmed by the Subordinate Judge and by the
High Court, was without jurisdiction. Repealing this contention, Justice J M Shelat
held:
“4…Though Section 29 was deleted by the amendment
Act of 1953 the deletion would not affect pending
proceedings and would not deprive the Controller of his
jurisdiction to try such proceedings pending before him
at the date when the amendment Act came into force.
Though the amendment Act did not contain any saving
clause, under Section 8 of the Bengal General Clauses
Act, 1899, the transfer of the suit having been lawfully
made under Section 29 of the Act its deletion would not
have the effect of altering the law applicable to the claim
in the litigation. There is nothing in Section 8 of the
amending Act of 1953 suggesting a different intention
and therefore the deletion would not affect the previous
operation of Section 5 of the Calcutta Thika Tenancy Act or
the transfer of the suit to the Controller or anything duly done
under Section 29. That being the correct position in law the
High Court was right in holding that in spite of the deletion of
Section 29 the Controller still had the jurisdiction to proceed
with the said suit transferred to him.” (emphasis supplied)
22. The above extract indicates that the Amending Act did not contain a
savings clause under Section 8 of the Bengal General Clauses Act 1899. Despite
the absence of a savings clause, the Court held that the deletion of Section 29
did not have the effect of altering the law applicable to the claim in the litigation
and there was nothing in the amending Act to indicate a contrary intention. At this
stage, it may be necessary to note that the second issue involved was the right of
PART C
31
the thika tenant as defined by the Act to the notice provided under the deed of
lease. On this aspect, the decision in Manujendra Dutt(supra) has been
overruled in the seven judge Bench decision in V Dhanapal Chettiar v. Yesodai
Ammal24. It is pertinent to mention that the decision in Manujendra Dutt(supra),
was concerned with the provisions of the repealing Act that impacted a
substantive right of litigants which was affected by virtue of the repeal and a
resulting change in forum. This Court’s position, in interpreting Section 6 of the
General Clauses Act, 1897 was clearly in favour of saving all substantive rights,
including vested rights, that were acquired or accrued prior to the repeal. Under
the unamended Act, the suit was transferred to the Controller under Section 29,
which was deleted by the Amending Act. In this context the Court held that on
account of Section 8 of the Bengal General Clauses Act, the deletion would not
affect the transfer of the suit or anything duly done under Section 29 (paragraph
5). This Court’s decision hence may not be relevant in interpreting Section 6(e) of
the General Clauses Act, rather it is useful for interpretating Section 6(b) of the
General Clauses Act which protects “anything duly done or suffered” under the
repealed enactment.
C.6 New India Assurance (1975- Supreme Court 3 judges)
23. The first decision of this Court that interpreted a mere change in forum,
that did not impact any other substantive or vested right of the litigant, was a
three judge bench decision of this Court in New India Assurance Company
24 (1979) 4 SCC 214
PART C
32
Limited v. Smt Shanti Mishra25. This case involved the jurisdiction of the Motor
Vehicles Tribunal vis-à-vis the City Civil Court, in the case of a fatal accident. The
accident had occurred on 11 September 1966 which gave rise to a cause of
action for the legal heirs to claim compensation under the Fatal Accidents Act
1855. Under Article 82 of the Limitation Act 1963, a limitation of two years from
the occurrence of the accident was stipulated. But in the meantime, a claims
tribunal under Section 110 of the Motor Vehicles Act 1939 was constituted by the
State government on 18 March 1967 following which an application was filed by
the claimant under Section 110A on 8 July 1967. Both the tribunal and the High
Court overruled the objection of the insurer to jurisdiction. In appeal, Justice NL
Untwalia speaking for the three judge Bench held:
“5…..It is a well-established proposition that such a
change of law operates retrospectively and the person
has to go to the new forum even if his cause of action or
right of action accrued prior to the change of forum. He
will have a vested right of action but not a vested right of
forum. If by express words the new forum is made
available only to causes of action arising after the
creation of the forum, then the retrospective operation of
the law is taken away. Otherwise the general rule is to
make it retrospective. The expressions “arising out of an
accident” occurring in sub-section (1) and “over the area in
which the accident occurred”, mentioned in sub-section (2)
clearly show that the change of forum was meant to be
operative retrospectively irrespective of the fact as to when
the accident occurred. To that extent there was no difficulty in
giving the answer in a simple way…” (emphasis supplied)
Dealing with the bar of limitation under Section 110A(3), this Court held that it could
be said that strictly speaking the bar would not operate in relation to an application
for compensation arising out of an accident which had occurred prior to the
25“New India Assurance”; (1975) 2 SCC 840
PART C
33
constitution of the Tribunal. However, in directing the institution of claims before the
Tribunal, this Court held:
“10. Apropos the bar of limitation provided in Section 110-
A(3), one can say, on the basis of the authorities aforesaid
that strictly speaking, the bar does not operate in relation to
an application for compensation arising out of an accident
which occurred prior to the constitution of the claims tribunal.
But since in such a case there is a change of forum,
unlike the fact of the said cases, the reasonable view to
take would be that such an application can be filed within
a reasonable time of the constitution of the tribunal,
which ordinarily and generally, would be the time of
limitation mentioned in sub-section (3). If the application
could not be made within that time from the date of the
constitution of the tribunal, in a given case, the further
time taken in the making of the application may be held
to be the reasonable time on the facts of that case for the
making of the application or the delay made after the
expiry of the period of limitation provided in sub-section
(3) from the date of the constitution of the tribunal can be
condoned under the proviso to that sub-section. In any
view of the matter, in our opinion, the jurisdiction of the
civil court is ousted as soon as the claims tribunal is
constituted and the filing of the application before the
tribunal is the only remedy available to the claimant. On
the facts of this case, we hold that the remedy available to the
respondents was to go before the claims tribunal and since
the law was not very clear on the point, the time of about four
months taken in approaching the tribunal after its constitution
can be held to be either a reasonable time or the delay of less
than 2 months could well be condoned under the proviso to
sub-section (3) of Section 110-A.”
(emphasis supplied)
The above decision conclusively held that a change of forum generally operates
retrospectively, irrespective of whether the cause or right of action had accrued
earlier. It directed that once the change in forum had been effected, the litigant
would have to be directed to the new forum.
PART C
34
C.7 Maria Cristina (1978- Supreme Court- 2 judges)
24. A subsequent decision of a two judge Bench of this Court in Maria
Cristina De Souza v. Amria Zurana Pereira Pinto26, enunciated the law relating
to change of forum vis-à-vis the right of appeal. In that case, a suit was instituted
in 1960 under the Portuguese Civil Procedure Code and decreed against the
appellants in 1968. The appellants lodged an appeal before the Court of the
Judicial Commissioner. Following the liberation of Goa in 1961, the Code of Civil
Procedure 1908 was extended to the territories of Goa, Daman and Diu with
effect from 15 June 1966 by Act 30 of 1965 and the corresponding provision and
the corresponding Portuguese Code were repealed. The legislative assembly of
Goa enacted the Goa, Daman and Diu Civil Courts Act 1965 under which the suit
which was pending before the Court at Margao was transferred to and decreed
by the Senior Civil Judge. Since the suit was of a value exceeding Rs 10 lacs an
appeal lay directly to the High Court which under Section 2(f) meant the Judicial
Commissioner’s Court. Justice V D Tulzapurkar, speaking for the two judge
Bench held:
“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 30 of 1965) read with the provisions of the Goa,
Daman and Diu civil court Act, 1965 (Goa Act 16 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 30 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 16
of 1965 the instant suit which was pending before the
26“Maria Cristina”; (1979) 1 SCC 92
PART C
35
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 wellsettled 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 30 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 Colonial Sugar Refining
Company Ltd. v. Irving [1905 AC 369] and Garikapatti
Veeraya v. N. Subbiah Choudhury [1957 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 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 p. 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
fulfil their functions.”
It is true that under clause (c) of the proviso to Section 4 of
Central Act 30 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
PART C
36
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 30 of 1965) read with Goa
Enactment (Act 16 of 1965) the appeal lay to the Judicial
Commissioner's Court and the same was accordingly filed in
the proper Court.” (emphasis supplied)
25. The decision in Maria Cristina (supra) makes a distinction between a right
of appeal, which is a substantive right that is vested in a litigant on the
commencement of the lis in the court of first instance and the forum where an
appeal can be lodged which “is indubitably a procedural matter”. Hence, in the
view of the Court, the appeal would have to be lodged in a forum provided by the
repealing Act though the right had arisen under the repealed Act. These
observations of the Court must be read together with the subsequent observation
that if the repealing act provides a 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. The decisions in New India
Assurance(supra) and Maria Cristina (supra) further the interpretation that a
change in forum is indubitably in the realm of procedural law that applies
retrospectively, unless the statute provides otherwise. The necessary corollary of
these decisions, is that the forum for determination of a lis, whether in the case of
an appeal [Maria Cristina (supra)] or in situations where the right of action had
accrued [New India Assurance (supra)] is in the realm of procedural law.
PART C
37
C.8 Hitendra Vishnu Thakur (1994- Supreme Court 2 judges)
26. In Hitendra Vishnu Thakur v. State of Maharashtra27, one among the
questions analyzed in a two judge Bench decision of this Court was whether
clause (bb) of Section 20(4) of the Terrorist and Disruptive Activities (Prevention)
Act 198728 introduced by an amending legislation governing Section 167(2) of
the Code of Criminal Procedure29 was in the realm of procedural law and if so,
whether it would apply to pending cases. Dr Justice AS Anand (as he then was)
held that amending Act 43 of 1993 was procedural and retrospective; and that
clauses (b) and (bb) of Section 20(4) of the TADA would apply to cases which
were pending investigation on the date when it came into force. In that context,
the principles of law, that aligned with the position in New India
Assurance(supra) and Maria Cristina(supra), were formulated in the following
terms:
“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 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.
27“Hitendra Vishnu Thakur”; (1994) 4 SCC 602 28 “TADA” 29 “CrPC”
PART C
38
(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 accomplished.
(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 supplied)
C.9 Sudhir G Angur (2005- Supreme Court 3 judges)
27. In Sudhir G Angur v. M Sanjeev30, a three judge Bench of this Court
considered the impact of a change in procedural law to pending proceedings
before a particular forum. In this case, the Mysore Code was repealed in 2003
and the Code of Civil Procedure, 1908 was to apply. This Court held that the
relevant court was under a duty to take notice of the change in law relating to
forum and apply it to a pending proceeding. In doing so, Justice SN Variava
approved the following exposition of law of the Bombay High Court in Shiv
Bhagwan Moti Ram Saroji v. Onkarmal Ishar Das31:
“11. In our view, Mr G.L. Sanghi is also right in submitting that
it is the law on the date of trial of the suit which is to be
applied. In support of this submission, Mr Sanghi relied upon
the judgment in Shiv Bhagwan Moti Ram Saraoji v. Onkarmal
Ishar Dass [AIR 1952 Bom 365 : 54 Bom LR 330] wherein it
has been held that no party has a vested right to a
particular proceeding or to a particular forum. It has
been held that it is well settled that all procedural laws
are retrospective unless the legislature expressly states
to the contrary. It has been held that the procedural laws
in force must be applied at the date when the suit or
proceeding comes on for trial or disposal. It has been
held that a court is bound to take notice of the change in
the law and is bound to administer the law as it was when
30 “Sudhir G Angur”; (2006) 1 SCC 141 31 (1952) 54 Bom LR 330
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the suit came up for hearing. It has been held that if a court
has jurisdiction to try the suit, when it comes on for disposal, it
then cannot refuse to assume jurisdiction by reason of the
fact that it had no jurisdiction to entertain it at the date when it
was instituted. We are in complete agreement with these
observations. As stated above, the Mysore Act now stands
repealed. It could not be denied that now the Court has
jurisdiction to entertain this suit.” (emphasis supplied)
C.10 Ramesh Kumar Soni (2013- Supreme Court 2 judges)
28. It is trite law to state that all procedural law is retrospective, unless a
contrary legislative intention can be observed. A two judge Bench in Ramesh
Kumar Soni v. State of Maharashtra32 considered a case where an FIR was
registered under the provisions of Sections 408, 420, 467, 468 and 471 of the
Indian Penal Code. On the date of the registration of the case, the offences were
triable by the Magistrate of the First Class in terms of the First Schedule of the
CrPC. As a result of Madhya Pradesh Act 2 of 2008, the First Schedule to the
CrPC was amended. As a consequence, offences under Sections 467, 468 and
471 were triable by a Court of Sessions instead of a JMFC. Consequent to the
amendment, the JMFC committed the case to the Sessions Court. A reference
was made to the High Court on whether the amendment would apply
retrospectively and whether cases pending before the JMFC and committed to
the Sessions Court should be tried de novo by the Sessions Judge or should be
remanded back to the Magistrate for further trial. A Full Bench of the Madhya
Pradesh High Court held that cases pending before the JMFC on 22 February
2008 were unaffected by the amendment and were triable by the JMFC since the
32“Ramesh Kumar Soni”; (2013) 14 SCC 696
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amending Act did not contain a clear indication that such cases would be made
over to the Court of Sessions. Justice TS Thakur (as the learned Chief Justice
then was) speaking for the two judge Bench observed that the Madhya Pradesh
Amendment had shifted the forum of trial from the Court of the Magistrate of the
First Class to the Court of Sessions. The issue was whether the amendment to
the forum was prospective or would govern cases that were pending on the date
of the amendment. This Court noted that:
“9. Having said so, we may now examine the issue from a
slightly different angle. The question whether any law relating
to forum of trial is procedural or substantive in nature has
been the subject-matter of several pronouncements of this
Court in the past. We may refer to some of these decisions,
no matter briefly.”
After adverting to the decisions in New India Assurance(supra), Hitendra Vishnu
Thakur(supra) and Sudhir G Angur(supra), the Court observed:
“14. The amendment to the Criminal Procedure Code in the
instant case has the effect of shifting the forum of trial of the
accused from the Court of the Magistrate, First Class to the
Court of Session. Apart from the fact that as on the date the
amendment came into force no case had been instituted
against the appellant nor had the Magistrate taken
cognizance against the appellant, any amendment shifting the
forum of the trial had to be on principle retrospective in nature
in the absence of any indication in the Amendment Act to the
contrary. The appellant could not claim a vested right of forum
for his trial for no such right is recognized. The High Court
was, in that view of the matter, justified in (sic not) interfering
with the order passed by the trial court.”
This Court noted that the Full Bench of the High Court had however relied
upon inter alia the decision in Manujendra Dutt(supra). This decision was
distinguished on the ground that the suit had been instituted and concluded and no
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vested right could be claimed for a particular forum for litigation. This Court
consequently overruled the judgment of the Full Bench of the High Court, though
prospectively, since many cases which had sent back from the Sessions Court to
the JMFC may have in the meantime been concluded or would have reached an
advanced stage. An exception to those cases was made as a change of forum at
that stage would cause unnecessary and avoidable hardship to the accused, if
they were committed to the Sessions Court for trial after the amendment and the
view of this Court. However, the principle of change of forum being procedural,
generally retrospective and applicable to pending proceedings was upheld.
C.11 Dhadi Sahu (1992 Supreme Court 2 judges)
29. Now, in this backdrop, it becomes necessary to consider the 1992 decision
of a two judge Bench of this Court in Commissioner of Income Tax, Orissa v.
Dhadi Sahu33 and several decisions which adverted to it. This was a case where
the assessee had preferred appeals to the Income Tax Appellate Tribunal. The
Tribunal allowed the appeals and set aside the penalties holding that in view of
the amendment made to Section 274(2) of the Income Tax Act 1961 with effect
from 1 April 1971, the Inspecting Assistant Commissioner34 lost his jurisdiction.
The power of the Income Tax Officer to impose a penalty under Section 271 was
subject to Section 274. As a result of the amending Act which came into force on
1 April 1971, the amount of income allegedly concealed had to exceed twentyfive thousand rupees. The effect of this amendment was that the Assistant
Commissioner did not have jurisdiction over the assessee as the concealed
33 “Dhadi Sahu”;1994 Suppl. (1) SCC 257 34 “IAC”
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amount was lesser than the minimum amount prescribed by the subsequent
amendment. Justice Yogeshwar Dayal speaking for the two judge Bench
premised the judgment on "the general principle of law" that a change of forum
does not affect pending actions unless a contrary intent is shown:
“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.”
This Court held that the amending Act did not make any provision that references
validly pending before IAC shall be returned without passing any final order if the
amount of income in respect of which particulars have been concealed did not
exceed rupees twenty five thousand. This, in the view of the Court, supported the
inference that the IAC continued to have jurisdiction to impose a penalty on
pending references. The previous operation of Section 274(2) as it stood before 1
April 1971 and anything done under it, continued to have effect under Section
6(b) for the General Clauses Act enabling the IAC to pass orders imposing a
penalty in a pending reference. If the reference was made before 1 April 1971, it
would be governed by Section 274(2) as it stood before that date and the IAC
would continue to have jurisdiction. However, in paragraph 21 of the decision,
this Court observed:
“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
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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.”
30. This Court then adverted to the decision in Manujendra Dutt(supra) and
Mohd. Idris(supra) and observed that "amending an Act does not show that the
pending proceedings before the court on reference abate". Therefore, the
decision of the two judge Bench in Dhadi Sahu(supra) held that a litigant had a
crystallized right to a forum when proceedings have been initiated and are
pending. Such a right vested, in the view of the Court, is distinct from a pure
procedure to be followed before the forum concerned. In taking this view, the two
judge Bench in Dhadi Sahu(supra) did not consider a three judge bench
decision in New India Assurance(supra) as well as a previous co-ordinate
Bench decision in Maria Cristina(supra), which relied on common law
jurisprudence and Section 6 of the General Clauses Act to hold that a change in
forum is purely a procedural matter which operates retrospectively in the absence
of a contrary legislative mandate. The latter principle has since been followed in
the decisions in Hitendra Vishnu Thakur(supra); Sudhir G Angur(supra);
Ranbir Yadav v. State of Bihar35; Kamlesh Kumar v. State of Jharkhand36 and
Ramesh Kumar Soni(supra).
35 (1995) 4 SCC 392 36 (2013) 15 SCC 460
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C.12 Ambalal Sarabhai (2001- Supreme Court 2 judges)
31. Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.37 is a two judge
Bench decision which considered the impact of an amendment to the Delhi Rent
Control Act made with effect from 1 December 1988 which excluded the
jurisdiction of the Rent Controller with respect to tenancies fetching a monthly
rent exceeding 3500 rupees. The Rent Controller had been moved by the
landlord who sought a decree of eviction on the ground of subletting, but prior to
the amendment. The tenant contended that the Civil Court alone had jurisdiction
after the amendment. In this backdrop, Justice AP Misra speaking for the two
judge Bench adverted to the provisions of Section 6 of the General Clauses Act
and observed:
“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 affect 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 crystallized 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
37 “Ambalal Sarabhai”; (2001) 8 SCC 397
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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.”
(emphasis supplied)
32. This Court noted that a pending proceeding would be saved under Section
6(e) of the General Clauses Act only if it is in relation to a right, privilege or
obligation that has been acquired or accrued under Section 6(c) of the Act. It is
pertinent to mention that the landlord under the amended act would have lost his
right to evict the tenant on the ground of sub-letting since the Rent Control Act
ceased to be applicable to premises where the monthly rent exceeded Rs. 3500.
Further, pursuant to the amendment, not only was his right of action before the
Rent Controller terminated but also the landlord was relegated to common law
remedies. The amendment substantially affected the right of action of the
landlord and did not merely change the forum. It was in this context, that this
Court held that a right had accrued to the landlord to continue the eviction
proceeding under the unamended Rent Control Act.
33. The Court observed that there are two sets of cases, one where Section 6
of the General Clauses Act is applicable and the other where it is not applicable.
In cases where Section 6 is not applicable, the Court would have to scrutinize
and determine whether a vested right had accrued to a person under a repealed
statute in which event pending proceedings would have to be saved. However,
where Section 6 is applicable, it is not merely a vested right but all those covered
by clauses (a) to (e) of Section 6 which are saved and, in such cases, the
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pending proceedings would be continued as if the statute had not been repealed.
In the context of Section 6(c) of the General Clauses Act, the Court observed that
the expression "any right accrued" is wide enough to include the landlord's rights
to evict a tenant in a proceeding was pending when the repealing legislation
came into force. Pending proceedings before the Rent Controller would,
therefore, continue to be proceeded with as if the repealed act was still in force. It
is pertinent to mention that the decision in Ambalal Sarabhai(supra) only saved
pending proceedings that were coupled with a vested right (in the event of nonapplicability of Section 6 of the General Clauses Act) or with any rights that had
accrued under Section 6(c)-(e) of General Clauses Act.
C.13 HP State Electricity (2013- Supreme Court 2 judges)
34. The principle of a crystallized right to a forum when proceedings are
pending, as propounded in Dhadi Sahu(supra), was subsequently referred to in
several decisions of this Court, including a two judge bench decision in Himachal
Pradesh State Electricity Regulatory Commission v Himachal Pradesh State
Electricity Board38. The Commission which was constituted under an Act of
1998 determined the tariff applicable for electricity in the State. Subsequently,
while discharging its regulatory functions, the Commission opined that a part of
the tariff had not been complied with. In pursuance of its notice, the Board was
subjected to a penalty upon which an appeal was filed under Section 27 of the
Act of 1998. During the pendency of the appeal the earlier Act was repealed and
the Electricity Act 2003 came into force. When the appeals were taken up by the
Single Judge, the Commission raised preliminary objection on maintainability on
38 “HP State Electricity”; (2014) 5 SCC 219
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the ground that after the constitution of an Appellate Tribunal under the 2003
legislation, it would be the Appellate Tribunal which would have jurisdiction and
the High Court had no jurisdiction to hear the appeal. The High Court held that
even after the enforcement of the new legislation in 2003, it continued to have
jurisdiction. The judgment of the High Court was assailed on the ground that the
appeal was not maintainable before it, upon a separate forum being constituted.
Section 185 contained a repeal and savings provision. Justice Dipak Misra (as
the learned chief Justice then was) speaking for a two judge Bench held that "a
right of appeal as well as forum is a vested right" unless it is taken away by the
legislature either by express provision or by necessary intention. The Court held:
“25. At this stage, we may state with profit that it is a wellsettled proposition of law that enactments dealing with
substantive rights are primarily prospective unless they are
expressly or by necessary intention or implication given
retrospectivity. The aforesaid principle has full play when
vested rights are affected. In the absence of any unequivocal
expose, the piece of legislation must exposit adequate
intendment of legislature to make the provision retrospective.
As has been stated in various authorities referred to
hereinabove, a right of appeal as well as forum is a
vested right unless the said right is taken away by the
legislature by an express provision in the statute by
necessary intention.
26…No doubt right to appeal can be divested but this
requires either a direct legislative mandate or sufficient proof
or reason to show and hold that the said right to appeal
stands withdrawn and the pending proceedings stand
transferred to different or new appellate forum. Creation of a
different or a new appellate forum by itself is not sufficient to
accept the argument/contention of an implied transfer.
Something more substantial or affirmative is required which is
not perceptible from the scheme of the 2003 Act.” (emphasis
supplied)
35. Hence, the conclusion of the High Court that it had jurisdiction to hear the
appeal was held to be “absolutely flawless” by observing that “a right of appeal as
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well as forum is a vested right unless the said right is taken away by the
legislature by an express provision in the statute by necessary intention”.
C.14 Videocon International (2015- Supreme Court 2 judges)
36. A two judge Bench of this Court in Videocon International Limited v.
Securities and Exchange Board of India39 dealt with the Appellate provisions
contained in the Security and Exchange Board of India Act 1992. Following the
insertion of Chapter 6B with effect from 25 January 1995, the remedy of an
appeal was provided to the Securities Appellate Tribunal under Section 15 T to a
person aggrieved by an order of the Board or by an Adjudicating Officer. Section
15 Z provided an appeal to the High Court against an order of the SAT on any
question of fact or law. Section 15 Z was amended with retrospective effect from
29 October 2002 to provide an appeal against the orders of the SAT to the
Supreme Court on any question of law. The forum of the second appellate
remedy was changed from the High Court to the Supreme Court. Appeals against
the order of the SAT which had been passed before 29 October 2002 (the date of
amendment) were filed before the High Court which held that such appeals which
have been instituted before the enforcement of amended Section 15 Z would not
be affected by the amendment and that it would continue to have jurisdiction to
hear and dispose of the appeals. The Amending Act had a repeal and savings
provision in Section 32 which was in the following terms:
“32. Repeal and saving.—(1) The Securities and Exchange
Board of India (Amendment) Ordinance, 2002 (Ord. 6 of
2002), is hereby repealed.
39 “Videocon International”; (2015) 4 SCC 33
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(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.”
37. The judgment of the High Court was assailed, citing the decisions in
Hitendra Vishnu Thakur(supra) and Maria Cristina(supra) amongst others, and
it was urged that the amendment by which the appellate forum was changed from
the High Court to the Supreme Court must be treated as merely procedural. On
the other hand, the Respondent relied on the decision in Dhadi Sahu(supra) and
Ambalal Sarabhai(supra). Justice JS Khehar (as the learned Chief Justice then
was) examined whether the amendment "envisaged a mere change of forum"40.
38. In this context, this Court noted that while under the un-amended Section
15 Z, an appeal lay before the High Court "on any question of fact or law arising
out of such order" the amendment had curtailed and restricted the right of appeal
since the appeal to this Court would now lie "on any question of law arising out of
such order". Consequently, this Court noted:
40 “38. 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 15-Z 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 15-Z of the SEBI Act. Under the unamended Section 15-Z, 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 15-Z, 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 15-Z, varied the scope of the second appeal provided under the SEBI Act.”
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“41…. Accordingly, by the amendment, the earlier appellate
package stands reduced, because under the amended
Section 15-Z, 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 15-Z 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 15-Z of the SEBI
Act, having reduced the appellate package, adversely
affected the vested appellate right of the litigant
concerned….”
While noting that this position would be subject to an amendment providing to the
contrary, this Court held that Section 32 which provided the repeal and savings
clause did not indicate a contrary intent. Hence, the appellate remedy which was
available prior to the amendment of Section 15 Z would, in the view of this Court
continue to be available despite the amendment. Moreover, this Court held that
neither the date of filing the appeal nor its hearing was of any relevance since the
right to an appellate remedy becomes vested when the lis is initiated. The
contention of the appellant that in the absence of a savings clause the pending
proceedings could not be deemed to have been saved was rejected by placing
reliance on the decision in Ambalal Sarabhai(supra):
“44…. In the judgment rendered by this Court in Ambalal
Sarabhai Enterprises Ltd. case [Ambalal Sarabhai
Enterprises Ltd. v. Amrit Lal and Co., (2001) 8 SCC 397] , 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 15-Z) would not be
affected in any manner…
Furthermore, the instant contention is wholly unacceptable in
view of the mandate contained in Sections 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
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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 crystallised 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….”
As regards the decisions inter alia in Hitendra Vishnu Thakur(supra) and Maria
Cristina(supra), this Court held that the principle that the forum is a procedural
matter and that an amendment which alters the forum would apply retrospectively
cannot be doubted but "the same is not an absolute rule". On this aspect, the
Bench relied upon the decision in Dhadi Sahu(supra) in support of the principle
that an amendment of a forum would not necessarily be an issue of procedure.
“45. 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 15-Z 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 15-Z 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, the
learned counsel for the appellant had placed reliance on
the decisions rendered by this Court in Maria Cristina De
Souza Sodder [Maria Cristina De Souza Sodder v. Amria
Zurana Pereira Pinto, (1979) 1 SCC 92] , Hitendra Vishnu
Thakur [Hitendra Vishnu Thakur v. State of Maharashtra,
(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] and Thirumalai
Chemicals Ltd. [Thirumalai Chemicals Ltd. v. Union of
India, (2011) 6 SCC 739 : (2011) 3 SCC (Civ) 458] cases to
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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 Dhadi
Sahu case [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257] ,
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.” (emphasis supplied)
The conclusion of this Court was held to be in accordance with the mandate of
Section 6 of the General Clauses Act. The appeals which had been filed by SEBI
before the High Court were therefore held to be maintainable.
C.15 SEBI v. Classic Credit (2018- Supreme Court 2 judges)
39. We have already noticed the earlier decision of Justice J S Khehar in
Videocon International (supra). Subsequent to the aforesaid decision, in
Securities and Exchange of Board of India v. Classic Credit Limited41, a two
41 (2018) 13 SCC 1
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53
judge bench of this Court, speaking through Justice Khehar, considered a claim
for transfer of pending proceedings under the SEBI Act 1992. At the time when
the complaints were filed under Section 26(2), the accused was required to be
tried by a Metropolitan Magistrate (or a JMFC). Section 24(1) as it existed prior to
the amendment read as follows:
“24. Offences.—(1) Without prejudice to any award of penalty
by the adjudicating officer under this Act, if any person
contravenes or attempts to contravene or abets the
contravention of the provisions of this Act or of any rules or
regulations made thereunder, he shall be punishable with
imprisonment for a term which may extend to one year, or
with fine, or with both.
(2) If any person fails to pay the penalty imposed by the
adjudicating officer or fails to comply with any of his directions
or orders, he shall be punishable with imprisonment for a term
which shall not be less than one month but which may extend
to three years or with fine which shall not be less than two
thousand rupees but which may extend to ten thousand
rupees or with both.”
40. After the amendment Section 24(1) envisaged a punishment for a term of
imprisonment which may extend to ten years or with fine which may extend to
rupees 25 crores. As a result of the amendment of Section 26(2) it came to be
stipulated that no court inferior to that of a Court of Sessions shall try any offence
punishable under the Act. After the 2002 amendment all pending cases before
the Metropolitan Magistrate or JMFC were committed to the Court of Sessions on
the assumption that the amending Act retrospectively altered the forum for trial.
When the issue of jurisdiction was being considered by the Bombay High Court,
SEBI sought to rely upon a judgment of the Delhi High Court which had
concluded that the amendment to Section 26 brought about only a change in
forum and was only procedural. The Bombay High Court took a view contrary to
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the judgment of the Delhi High Court. During the pendency of the appeals before
this Court, the SEBI Act was amended again by the omission of 26(2) and the
insertion of Section 26 A to E from 18 July 2013. SEBI argued that since the
impact of 2002 amendment had again been altered, all the pending cases would
be required to be tried by a Special Court in terms of the 2014 Amendment.
Section 26-B provided as follows:
“26-B. Offences triable by Special Courts.—Notwithstanding
anything contained in the Code of Criminal Procedure, 1973
(2 of 1974), all offences under this Act committed prior to the
date of commencement of the Securities Laws (Amendment)
Act, 2014 or on or after the date of such commencement,
shall be taken cognizance of and tried by the Special Court
established for the area in which the offence is committed or
where there are more Special Courts than one for such area,
by such one of them as may be specified in this behalf by the
High Court concerned.”
41. SEBI argued before this Court that a change of the forum for trial was a
matter of mere procedure and would therefore be retrospective, there being no
express or implied intent either in the 2002 and 2014 Amendments that the
amendments were intended to be of prospective effect. Justice JS Khehar
speaking for the two judge Bench of this Court adverted to the decisions inter alia
in New India Assurance(supra), Ramesh Kumar Soni(supra) and Hitendra
Vishnu Thakur(supra), and observed in that context:
“49…In our considered view, the legal position expounded by
this Court in a large number of judgments including New India
Insurance Co. Ltd. v. Shanti Misra [New India Insurance Co.
Ltd. v. Shanti Misra, (1975) 2 SCC 840] ; SEBI v. Ajay
Agarwal [SEBI v. Ajay Agarwal, (2010) 3 SCC 765 : (2010) 2
SCC (Cri) 491] and Ramesh Kumar Soni v. State of
M.P. [Ramesh Kumar Soni v. State of M.P., (2013) 14 SCC
696 : (2014) 4 SCC (Cri) 340] , is clear and unambiguous,
namely, that procedural amendments are presumed to be
retrospective in nature, unless the amending statute
expressly or impliedly provides otherwise. And also, that
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generally change of “forum” of trial is procedural, and
normally following the above proposition, it is presumed to be
retrospective in nature unless the amending statute provides
otherwise. This determination emerges from the decision of
this Court in Hitendra Vishnu Thakur v. State of
Maharashtra [Hitendra Vishnu Thakur v. State of
Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087]
; Ranbir Yadav v. State of Bihar [Ranbir Yadav v. State of
Bihar, (1995) 4 SCC 392 : 1995 SCC (Cri) 728] and Kamlesh
Kumar v. State of Jharkhand [Kamlesh Kumar v. State of
Jharkhand, (2013) 15 SCC 460 : (2014) 6 SCC (Cri) 489] , as
well as, a number of further judgments noted above.”
42. The above observations indicate the clear view of this Court that:
(i) In the absence of a contrary intent express or implied, procedural
amendments are presumed to be retrospective;
(ii) A change in the forum of a trial is a procedural matter; and
(iii) Since a change of forum is procedural, a statute which brings about the
change is presumed to be retrospective in the absence of a contrary intent.
43. Hence, the Court went on to observe that it had "also no doubt ...that
change of "forum" being procedural the amendment of the “forum” would operate
retrospectively, irrespective of whether the offence allegedly committed by the
accused was committed prior to the amendment"42.
44. However, the Bench was conscious of the contrary view in Dhadi
Sahu(supra) and the conflicting interpretations in the decisions in Manujendra
Dutt(supra), Mohd. Idris(supra), Ambalal Sarabhai(supra), Ramesh Kumar
Soni(supra) and Videocon International(supra) (which the Bench adverted to in
42 At para 50, page 68
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56
paragraphs 51 to 53 of its decision). Dealing with this line of authority, Chief
Justice J S Khehar observed:
“54. From a perusal of the conclusions drawn in the above
judgments, we are inclined to accept the contention that
change of “forum” could be substantive or procedural. It may
well be procedural when the remedy was yet to be availed of
but where the remedy had already been availed of (under an
existing statutory provision), the right may be treated as
having crystallized into a vested substantive right.”
The view which was formulated by the Court was that where a remedy has been
availed of prior to the amendment then unless the amending provision mandates
either expressly or by necessary implication, the transfer of proceedings to the
forum introduced by the amendment, the forum as it exceeded prior to the
amendment would continue to have jurisdiction:
“55. In the latter situation referred to (and debated) in the
preceding paragraph, where the remedy had been availed of
prior to the amendment, even according to the learned
counsel for the private parties, unless the amending provision
by express words, or by necessary implication, mandates the
transfer of proceedings to the “forum” introduced by the
amendment the “forum” postulated by the unamended
provision, would continue to have the jurisdiction to adjudicate
upon pending matters (matters filed before amendment). In
view of the above, we are of the considered view, that no
vested right can be claimed with reference to “forum”, where
the court concerned, had not taken cognizance and
commenced trial proceedings, in consonance with the
unamended provision.”
Where, however, proceedings had already commenced before the amendment, a
change in the forum of the trial would not affect pending actions unless a contrary
intent is shown. This Court then scrutinized whether the amendments which were
made in 2002 and 2014 expressed a contrary intent. The Court held that Section
26, as amended in 2002, left no room for doubt that the erstwhile forum ceases to
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have adjudicating authority and the newly created forum - the Court of Sessions
would deal with all pending matters as well. As a result, the 2002 Amendment
"diverted jurisdiction" from the Metropolitan Magistrates and JMFCs to try
offences under the SEBI Act after the amendment became operational. Similarly,
the 2014 Amendment grouped all offences together by providing that they would
be tried by a Special Court whether committed prior to or after the amendment;
no segregation being permissible. By the 2014 amendment, the function of taking
cognizance had been vested with the Special Courts. This Court held that all
pending matters where cognizance had been taken and proceedings had
commenced before the Court of Sessions would not be affected. In conclusion,
this Court observed:
“79. In view of the consideration recorded hereinabove, we are
of the view, that the “forum” for trial earlier vested in the Court
of Metropolitan Magistrate (or Judicial Magistrate of the First
Class) was retrospectively amended, inasmuch as, the “forum”
of trial after the 2002 Amendment Act was retrospectively
changed to the Court of Session. In this view of the matter, the
trials even in respect of offences allegedly committed before
29-10-2002 (the date with effect from which the 2002
Amendment Act became operational), whether in respect
whereof trial had or had not been initiated, would stand
jurisdictionally vested in a Court of Session. And likewise, trials
of offences under the SEBI Act, consequent upon the 2014
Amendment Act (which became operational, with effect from
18-7-2013) would stand jurisdictionally transferred for trial to a
Special Court, irrespective of whether the offence under the
SEBI Act was committed before 29-10-2002 and/or before 18-
7-2013 (the date with effect from which the 2014 Amendment
Act became operational), and irrespective of the fact whether
trial had or had not been initiated.”
Accordingly, the view of the Delhi High Court in transferring pending proceedings
was affirmed while that taken by the Bombay High Court was set aside.
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C.16 Swapna Mohanty (2018- Supreme Court 2 judges)
45. A two judge Bench of this Court in Swapna Mohanty v. State of Odisha43
dealt with the provisions of Section 24 B of the Orissa Education Act 1969. The
State Education Tribunal obtained jurisdiction to decide appeals in respect of
colleges only from the date on which they were admitted to grant-in-aid. The
appeal was filed in August 2002 before the College was admitted to grant-in-aid
in February 2004 and the issue examined was whether the Director of Higher
Education had competence to hear the appeal after the college was admitted to
grant-in-aid. Justice L Nageswara Rao speaking for the two judge Bench held
that the Director continued to have jurisdiction to decide the appeal which was
filed before him prior to the admission of the college to grant-in-aid “as there is no
provision in the Orissa Education Act providing for a change-over of all
proceedings to the Tribunal”.44 In arriving at this conclusion, the two judge Bench
relied on the judgment in Dhadi Sahu(supra).
C.17 Om Prakash Agarwal (2018- Supreme Court 2 judges)
46. In Om Prakash Agarwal v. Vishan Dayal Rajpoot45, a two judge Bench
of this Court considered the provisions of the UP Civil Laws (Amendment) Act
2015 under which, with effect from 7 December 2015, Sections 9 and 21 of the
Bengal, Agra and Assam Civil Courts Act 1887 and Section 15 of the Provincial
Small Cause Courts Act 1887 were amended. By the amendment, the limit of the
43 (2018) 17 SCC 621 44 Para 9
45 (2019) 14 SCC 526
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pecuniary jurisdiction of the Small Cause Courts was increased from rupees
twenty-five thousand to rupees one lakh. Although, the pecuniary jurisdiction was
enhanced to rupees one lakh, the suit which was pending before the Additional
District Judge continued to proceed without objection by the parties. A decree for
eviction and for arrears of rent was passed. In the revision before the High Court,
one of the grounds raised was that in view of the UP Civil Laws (Amendment) Act
2015, the Court of the Additional District Judge ceased to have jurisdiction to try a
suit between a lessor and lessee of a value of upto one lakh from 1 December
2015 and the assumption of jurisdiction was invalid. Accepting the submission,
the High Court allowed the revision and remanded the suit for a fresh decision
before the Small Cause Courts. The suit which was instituted under Section 15(2)
by the lessor for eviction of the lessee was filed initially before the Small Cause
Court, Firozabad since the valuation was Rs. 21,175. Subsequently, following the
amendment, the valuation was enhanced to Rs 27,775 and the suit was
transferred to the Court of the District Judge. On these facts, the main issue was
whether after 7 December 2015, the Court of the Additional District Judge where
the suit was pending could still have pecuniary jurisdiction to decide the suit or
whether it should be transferred back to the Small Causes Court. By UP Act 37 of
1972, an amendment had been made in Section 25 of the Bengal, Agra and
Assam Civil Courts Act 1887 so as to empower the State government to confer
upon any District Judge or Additional District Judge the power of a Judge of the
Small Causes Court for the trial of suits irrespective of value by a lessor for the
eviction of a lessee.
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47. Justice Ashok Bhushan speaking for the two judge Bench observed that
the expression “irrespective of their value” used in Section 25 as amended was
with the clear intent that irrespective of value, cases filed by the lessee for the
eviction of the lessee should be treated as small causes cases. By a subsequent
amendment, the Small Causes Court presided over by the Civil Judge, became
empowered to decide cases up to a value of twenty-five thousand rupees while
those above would be taken cognizance of by the Additional District Judge. The
Court held:
“54…When a small cause suit not exceeding value of Rs 1
lakh is cognizable by the Court of Small Causes, obviously,
no other court can take cognizance. The Additional District
Judge to whom small causes suit in question was transferred
since its valuation was more than of Rs 25,000 was not
competent to take cognizance of the suit after the U.P. Civil
Laws (Amendment) Act, 2015 w.e.f. 7-12-2015, when the suit
in question became cognizable by the Small Cause Court i.e.
the Court of Civil Judge, Senior Division.”
C.18 Delhi High Court Bar Association (1993- Delhi HC- DB)
48. We will now advert to a few High Court decisions which have come to
varying conclusions due to the ambiguity introduced in the position of law by
Dhadi Sahu(supra) vis-à-vis Maria Cristina(supra) and New India
Assurance(supra) by creating an exception to the rule that a change of forum is
purely a procedural matter. In Delhi High Court Bar Association v. Court of
Delhi46, the original jurisdiction of the High Court was increased from Rs. 1 lakh
to Rs. 5 lakhs. The appellants in that case sought to question the transfer of
proceedings from the High Court to the lower court. The High Court noted that
the Amending Act’s object was to reduce the burden on the High Court and
46 ILR (1994) 1 Del 271
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speedy disposal of cases. The High Court held that change of forum is a
procedural matter and not a vested right. A Division Bench of the High Court
speaking through Justice DP Wadhwa noted the ambiguity created by Dhadi
Sahu(supra) and applied the principle in New India Assurance(supra) and
Maria Cristina(supra) to direct transfer of pending proceedings as a change of
forum owing to amendments to the pecuniary jurisdiction is a change in
procedural law that is usually retrospective:
“29. In New India Insurance Co. Ltd. v. Smt. Shanti Misra
((1975) 2 SCC 840 : AIR 1976 S.C. 237)(9) the Supreme
Court did express the opinion that change of forum is a
change of procedural law and not a substantive law. In Maria
Cristina De Souza Sodder v. Amria Zurana Percira Pinto,
(1979) 1 SCC 92 (10), the court held that right of appeal
though was a substantive right and got vested in the litigant
no sooner the lis was commenced in the court of the first
instance and such right would not be affected by any repeal
of an enactment conferring such right unless the repealing
Act either expressly or by necessary implication took away
such right. The court also said that the forum where such
appeal could be lodged was a procedural matter and
therefore the appeal the right to which had arisen under
the repealing Act would have to be lodged in a forum
provided for by the repealing Act. In Mithilesh Kumari v.
Prem Behari Khare, (1989) 2 SCC 95 : AIR 1989 S.C. 1247
(11), the Supreme Court said that even vested right could be
taken away and said that where remedy is barred the right
became unenforceable. The decision of the Supreme Court
in Commissioner of Income Tax, Orissa v. Shri Dhadi
Sahu, JT 1992 (6) S.C. 714, would appear to be somewhat
in conflict with its earlier decision but this judgment
though holds that forum of appeal is a vested right to be
followed before a particular forum and that right
becomes vested when the proceedings are initiated but
that vested right would not continue if the legislature by
express words or by necessary implications so indicates.
The Full Bench of the Punjab High Court in Gordhan Das
Baldev Das v. The Governor General in Council, AIR 1952
Punjab 103 (FB) (12), had also said that such a vested right
of appeal to a particular forum could be taken away by a later
statute if the intention of the legislature was clearly
manifested in the later Act.” (emphasis supplied)
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C.19 Mahendra Jain (2008- Bombay HC-DB)
49. In Mahendra Panmal Duggad Jain v. Bhararilal Panmal Duggad Jain47,
a controversy arose before the Bombay High Court where an amendment was
made to Section 26 of the Bombay Civil Court Act, 1869, which increased the
pecuniary jurisdiction of the District Court from Rs. 50,000 to Rs. 2 lakhs.
Consequently, the Registrar of the Bombay High Court transferred an appeal
which was pending when the amendment came into force to the District Court.
The applicants applied to the District Court for re-transferring the appeal to the
High Court contending that the appeals filed and entertained by the High Court
prior to the amendment coming into force on 13 January 1999 were not liable to
be transferred to the District Court. Their application was rejected and the
applicants filed an application of re-transfer of the appeal before the High Court.
The High Court placed reliance on Section 7(b) of the Bombay General Clauses
Act to hold that the amendment would not affect the proceedings initiated before
the High Court. The High Court held that unless a clear legislative intent can be
discerned, the absence of a savings clause would not warrant transfer of cases to
a new forum. Although, the High Court noted that the right to forum is in the realm
of procedural law and would not entitle a litigant who has instituted suit in a trial
court before the amending act came into force to insist that their appeal may also
be heard and decided by the forum prescribed under the unamended provisions.
Justice R.C. Chavan observed:
“19…In view of the provisions of section 7(b) of the Bombay
General Clauses Act the repeal of part of section 26 of
Bombay Civil Courts Act, relating to the reference to the sum
47 (2008) 4 Mah LJ 803
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of Rs. Fifty Thousand, would not affect the proceedings which
had already commenced or had been initiated in the High
Court. We may, however, add that right to forum being in the
realm of adjectives or procedural law would not entitle the
suitor who had filed suit in the trial Court before Amending Act
came into force to insist that even his appeal may be heard
and decided by the forum prescribed under the unamended
provisions. This question has already been concluded by the
Full Bench in Vilas Vasant Mahajan v. Central Bank of India.
However, unless clear legislature intent can be discerned to
indicate that even pending matters were required to be
transferred to the new forum, mere absence of a saving
clause like one in the form of section 19 of the Amending Act
of 1977, would not warrant transfer of cases to the new
forum.”
C.20 Vallabhaneni (2004- Andhra Pradesh HC- 5 judges)
50. In Vallabhaneni Lakshmana Swamy v. Valluru Basavaiah48 was a case
where the A.P. Civil Court (Amendment) Act 1989 raised the pecuniary
jurisdiction to entertain the appeal at the District Court from Rs. 30,000 to Rs. 1
lakh. By a further amendment the pecuniary jurisdiction was raised to Rs. 3 lakhs.
The High Court held that the amendment would be applicable prospectively. The
High Court further held that in case of suits which were filed earlier to the
amendment and were pending as on the date the amendment came in force, the
appeal in relation to those suits would be filed before a forum created under the
amended Act depending on the pecuniary limits. If the appeal has been
presented before the date of the amended Act coming into force and the appeals
were pending as on the said date, the amendment would not have any effect on
such pending appeals. The judgement of the High Court was premised on the
principle that when the right to appeal and forum are inextricable, they both
48 (2004) 5 ALD 807
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become substantive rights and travel together. The Special Bench of the High
Court observed:
“96. …. if the forum is changed and the right of the appeal in
the forum are so inextricable that they cannot be separated
by clear cut measure. It has to be that the right of appeal as
well as the forum are both substantive rights and therefore,
they only apply to the cases in future and not applied to the
pending cases.”
C.21 Gobardhan Lal Soneja (1991- Patna HC- FB)
51. In Gobardhan Lal Soneja v. Binod Kumar Sinha49, the Patna High Court
relied on the decision in New India Assurance to hold that the transfer of pending
proceedings from the Sub-Judge to the Munsif after pecuniary jurisdiction is
altered by an amendment, is a valid exercise of power and there is no vested
right to a forum. The Full Bench of the High Court observed:
“11…The Supreme Court in the New India Assurance Co.
Ltd. (supra) considered the effect of section 110A of the
Motor Vehicles Act, 1939 by which Claims Tribunals were
constituted for filing claims arising out of motor vehicle
accidents: The question was whether with regard to the
claims for compensation arising out of an accident which took
place after introduction of section 110A, a suit will lie or a
claim therefor shall have to be filed before the Claims
Tribunal. It was held by the Supreme Court that by section
110A there was no change in law, but merely change of
forum i.e. the change of adjectival or procedural law and not
substantive law. It was observed. “It is well established
proposition that such change of law operates retrospectively
and the person has to go to new forum even if his cause of
action or right of action accrued prior to the change of forum.
He will have a vested right of action, but not a vested right of
forum”. It may be noticed that the language of section 19 is
not such as to interpret it that the Munsif and Additional
Munsif were given jurisdiction to hear suits of higher value
which were filed after the amendment of that section. For this
reason also, it must be held that the application of section 19
will be retrospective in the sense that it will apply to the
49 (1991) 2 PLJR 783
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pending suits. This proposition of law has been laid down in
the New India Assurance Co. Ltd., (supra).”
C.22 Y.B. Ramesh (2010- Karnataka HC- SJ)
52. The Karnataka High Court in Y.B. Ramesh v. Varalakshmi50, held that a
subsequent amendment to pecuniary jurisdiction is said to have divested the
concerned forum of its authority to hear the matter. The Single Judge of the High
Court relied on the decision in Sudhir G Angur(supra) and observed:
“9. The main argument addressed by the learned Counsel for
the petitioner is that as on the date of filing of the suit, the
Court has no jurisdiction and hence, the plaint has to be
rejected under Order 7, Rule 11(d) of CPC. The issue
regarding law to be applied in determining the jurisdiction of
the Court, i.e., the law as existing on the date of institution of
the suit or on the date on which, the suit came up for hearing
has to be applied. The Hon'ble Supreme Court in a judgment
cited supra (Sudhir G Angur), held as under:
“In our view Mr. G.L. Sanghi is also right in submitting that it is
the law on the date of trial of the suit which is to be applied. In
support of this submission, Mr. Sanghi relied upon the
judgment in Shiv Bhagwan Mod Ram Saraoji v. Onkarmal
Ishar Dass, AIR 1952 Bom. 365, wherein it has been held that
no party has a vested right to a particular proceeding or to a
particular forum. It has been held that it is well-settled that all
procedural laws are retrospective unless the Legislature
expressly states to the contrary. It has been held that the
procedural laws in force must be applied at the date when the
suit or proceeding comes on for trial or disposal. It has been
held that a Court is bound to take notice of the change in the
law and is bound to administer the law as it was when the suit
came up for hearing. It has been held that if a Court has
jurisdiction to try the suit, when it comes on for disposal, it
then cannot refuse to assume jurisdiction by reason of the
fact that it had no jurisdiction to entertain it at the date when it
was instituted. We are in complete agreement with these
observations. As stated above, the Mysore Act now stands
repelled. It could not be denied that now the Court has
jurisdiction to entertain this suit”.
10. In view of the pronouncement of law by the Hon'ble
Supreme Court, the petitioner is not entitled for any relief.
50 (2010) 6 Kant LJ 43
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Further, even if it is held that the Civil Judge (Junior Division)
has no pecuniary jurisdiction to entertain the suit, at the most,
the Court can return the plaint to the plaintiff to present before
the appropriate Court. In view of the amendment to the Civil
Courts Act, the Civil Judge (Junior Division), Magadi is the
Competent Court to try the suit and hence, I.A. No. 1 filed by
the petitioner cannot be entertained.”
C.23 Conclusion on the position of law
53. In considering the myriad precedents that have interpreted the impact of a
change in forum on pending proceedings and retrospectivity- a clear position of
law has emerged: a change in forum lies in the realm of procedure. Accordingly,
in compliance with the tenets of statutory interpretation applicable to procedural
law, amendments on matters of procedure are retrospective, unless a contrary
intention emerges from the statute. This position emerges from the decisions in
New India Assurance(supra), Maria Cristina(supra), Hitendra Kumar
Thakur(supra), Ramesh Kumar Soni(supra) and Sudhir G Angur(supra). More
recently, this position has been noted in a three judge Bench decision of this
Court in Manish Kumar v. Union of India51. However, there was a deviation by
a two judge bench decision of this Court in Dhadi Sahu(supra), which overlooked
the decision of a larger three judge bench in New India Assurance(supra) and of
a co-ordinate two judge bench in Maria Cristina(supra). The decision in Dhadi
Sahu(supra) propounded a position 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
51 Writ Petition (C) No. 26 of 2020, decided on 19 January 2021 (Supreme Court of India)
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67
right becomes vested when the proceedings are initiated in the tribunal.” In
taking this view, the two judge bench did not consider binding decisions. Dhadi
Sahu(supra) failed to consider that the saving of pending proceedings in Mohd.
Idris(supra) and Manujendra Dutt(supra) was a saving of vested rights of the
litigants that were being impacted by the repealing acts therein, and not because
a right to forum is accrued once proceedings have been initiated. Thereafter, a
line of decisions followed Dhadi Sahu(supra), to hold that a litigant has a
crystallized right to a forum once proceedings have been initiated. A litigant’s
vested right (including the right to an appeal) prior to the amendment or repeal
are undoubtedly saved, in addition to substantive rights envisaged under Section
6 of the General Clauses Act. This protection does not extend to pure matters of
procedure. Repeals or amendments that effect changes in forum would ordinarily
affect pending proceedings, unless a contrary intention appears from the
repealing or amending statute.
54. It is relevant to note in this context that the decision in Ambalal
Sarabhai(supra) saved proceedings in relation to a benefit which although not
vested, accrued to the landlord to evict the tenant by virtue of a proviso to a
Section which accorded protection to the tenant from ejectment. This Court
reasoned that since the right of the landlord flows from a Section which protects
the tenant, it cannot be enlarged into a vested right. However, Ambalal
Sarabhai(supra) did not enunciate an absolute proposition that the right to
institute proceedings at a particular forum is an accrued right, let alone a vested
right. The dictum that a change of forum is a procedural matter is not altered by
the decision of this Court in Ambalal Sarabhai(supra) which sought to
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differentiate between vested rights and accrued rights, the latter being protected
under Section 6(c) of the General Clauses Act, the proceedings in relation to
which are protected under Section 6(e).
55. Now, it is in this backdrop, that we have to analyze the impact of the Act of
2019 upon pending cases which were filed before the fora constituted under the
Act of 1986.
PART D
69
D Legislative Scheme of the jurisdictional provisions
56. Some of the salient aspects of the Act of 2019 insofar as they pertain to
the jurisdictional provisions need to be visited. The pecuniary limits of the original
jurisdiction of the District Commission under Section 34(1) is to entertain
complaints where the value of the goods or services paid as consideration does
not exceed a crore of rupees.
57. An appeal lies to the SCDRC from an order of the District Commission
under Section 41. The second proviso to Section 41 stipulates that an appeal
shall not be entertained of a person who is required to pay any amount under the
order of the District Commission, unless the appellant has deposited 50 per cent
of the decretal amount.
58. The SCDRC has, under Section 47(1)(a)(i), original jurisdiction to entertain
complaints subject to a pecuniary limit of not less than one crore rupees and not
exceeding rupees ten crores. The SCDRC has an appellate jurisdiction under
Section 47(1)(a)(iii), revisional jurisdiction under Section 47(1)(b) and review
jurisdiction under Section 50.
59. Section 51 provides an appeal to the NCDRC from an order passed by the
SCDRC in the exercise of its original jurisdiction to hear a complaint [referable to
sub-clauses (i) and (ii) of clause (a) of Section 47 (1)]. As in the manner of an
appeal before the SCDRC against an order of the District Commission, the
second proviso to Section 51 provides that an appeal shall not be entertained at
the behest of a person who is required to pay any amount unless 50 per cent of
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the amount has been deposited. Under sub-Section (2) of Section 51, an appeal
before the NCDRC against an order of the SCDRC lies on a substantial question
of law.
60. The original jurisdiction of the NCDRC under Section 58(a)(1) is to
entertain complaints where the value of the goods or services paid as
consideration exceeds rupees ten crores and complaints against unfair contracts
of a similar value. The NCDRC is vested with an appellate jurisdiction under
Section 51, a revisional jurisdiction under Section 58(1)(b) and a review
jurisdiction under Section 60. An appeal against an order of the NCDRC passed
in the exercise of its original jurisdiction lies to this Court under Section 67. The
second proviso of Section 67 requires a pre-deposit of 50 per cent of the amount
ordered by the NCDRC.
61. Under the earlier Act of 1986, the pecuniary limit of the jurisdiction of (i) the
District Commission was up to rupees 20 lacs under Section 11(1); (ii) the
SCDRC between rupees twenty lacs and rupees one crores under Section 17(1);
and (iii) the NCDRC above rupees one crore under Section 21. The requirement
of pre-deposit for filing an appeal before the SCDRC against an order of the
District Commission was 50 per cent of the amount or twenty-five thousand
rupees, whichever is less (Section 15). A similar pre deposit was required for
appeals to the NCDRC against orders of the SCDRC (second proviso to Section
19). An appeal before the NCDRC against an order of the SCDRC (Section 19)
was not circumscribed by the requirement that it must raise a substantial question
PART E
71
of law. In Section 51(2) of the Act of 2019, an appeal to the NCDRC lies on a
substantial question of law.
E Legislative intendment underlying Section 107 of the Act of 2019
62. Section 107(1) of the Act of 2019 repeals the Act of 1986. In State of
Rajasthan v. Mangilal Pindwal52, this Court accepted the principle that the effect
of a repeal, in the absence of a savings clause or a general savings statute, is
that "a statute is obliterated" subject to the exception that it exists in respect of
transactions past and closed. Section 107 (2) has saved "the previous operation"
of any repealed enactment or "anything duly done or suffered thereunder to the
extent that it is not inconsistent with the provisions of the new legislation". Finally,
Section 107(3) indicates that the mention of particular matters in sub-Section (2)
will not prejudice or affect the general application of Section 6 of the General
Clauses Act.
63. Section 6 of the General Clauses Act provides governing principles with
regard to the impact of the repeal of a central statute or regulation. These
governing principles are to apply, "unless a different intention appears". Clause
(c) of Section 6 inter alia stipulates that a repeal would not affect “any right,
privilege, obligation or liability acquired, accrued or incurred under any enactment
so repealed". The right to pursue a validly instituted consumer complaint under
the Act of 1986 is a right which has accrued under the law which was repealed.
Clause (e) of Section 6 stipulates that the repeal will not affect, inter alia, any
52 (1996) 5 SCC 60
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"legal proceeding or remedy" in respect of any such right…as aforesaid". Any
such legal proceedings may be continued as if the repealing legislation had not
been passed. Clause (c) of Section 6 has the effect of preserving the right which
has accrued. Clause (e) ensures that a legal proceeding which has been initiated
to protect or enforce "such right" will not be affected and that it can be continued
as if the repealing legislation has not been enacted. The expression such a right
in clause (e) evidently means the right which has been adverted to in clause (c).
The plain consequence of clause (c) and clause (e), when read together is twofold: first, the right which has accrued on the date of the institution of the
consumer complaint under the Act of 1986 (the repealing law) is preserved; and
second, the enforcement of the right through the instrument of a legal proceeding
or remedy will not be affected by the repeal.
64. Having stated the above position, we need to harmonize it with the
principle that the right to a forum is not an accrued right, as discussed in Part C
of this judgement. Simply put, while Section 6(e) of the General Clauses Act
protects the pending legal proceedings for the enforcement of an accrued right
from the effect of a repeal, this does not mean that the legal proceedings at a
particular forum are saved from the effects from the repeal. The question whether
the pending legal proceedings are required to be transferred to the newly created
forum by virtue of the repeal would still persist. As discussed, this Court in New
India Assurance(supra) and Maria Christina(supra) has held that forum is a
matter pertaining to procedural law and therefore the litigant has to pursue the
legal proceedings at the forum created by the repealing act, unless a contrary
intention appears. This principle would also apply to pending proceedings, as
PART E
73
observed in Ramesh Kumar Soni(supra), Hitendra Kumar Thakur(supra) and
Sudhir G Angur(supra). In this backdrop, what is relevant to ascertain is whether
a contrary intent to the general rule of retrospectivity has been expressed under
the Act of 2019 to continue the proceedings at the older forum.
65. Now, in considering the expression of intent in the repealing enactment in
the present case, it is apparent that there is no express language indicating that
all pending cases would stand transferred to the fora created by the Act of 2019
by applying its newly prescribed pecuniary limits. In deducing whether there is a
contrary intent, the legislative scheme and procedural history may provide a
relevant insight into the intention of the legislature.
66. The Act of 2019, as indicated by its long title, is enacted to provide "for
protection of the interests of consumers". The Statement of Objects and Reasons
took note of the tardy disposal of cases under the erstwhile legislation. Thus, the
necessity of inducing speed in disposal was to protect the rights and interests of
consumers. The Act of 2019 has taken note of the evolution of consumer markets
by the proliferation of products and services in light of global supply chains, ecommerce and international trade. New markets have provided a wider range of
access to consumers. But at the same time, consumers are vulnerable to
exploitation through unfair and unethical business practices. The Act has sought
to address "the myriad and constantly emerging vulnerabilities of the consumers".
The recurring theme in the new legislation is the protection of consumers which is
sought to be strengthened by procedural interventions such as strengthening
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74
class actions and introducing mediation as an alternate forum of dispute
resolution.
67. In this backdrop, something specific in terms of statutory language - either
express words or words indicative of a necessary intendment would have been
required for mandating the transfer of pending cases. One can imagine the
serious hardship that would be caused to the consumers, if cases which have
been already instituted before the NCDRC were required to be transferred to the
SCDRCs as a result of the alteration of pecuniary limits by the Act of 2019. A
consumer who has engaged legal counsel at the headquarters of the NCDRC
would have to undertake a fresh round of legal representation before the SCDRC
incurring expense and engendering uncertainty in obtaining access to justice.
Likewise, where complaints have been instituted before the SCDRC, a transfer of
proceedings would require consumers to obtain legal representation before the
District Commission if cases were to be transferred. Such a course of action
would have a detrimental impact on the rights of consumers. Many consumers
may not have the wherewithal or the resources to undertake a fresh burden of
finding legal counsel to represent them in the new forum to which their cases
would stand transferred.
68. It would be difficult to attribute to Parliament, whose purpose in enacting
the Act of 2019 was to protect and support consumers with an intent that would
lead to financial hardship, uncertainty and expense in the conduct of consumer
litigation. Ironically, the objection which has been raised in the present case to
the continued exercise of jurisdiction by the NCDRC in regard to the consumer
PART E
75
complaint filed by the appellant is by the developer who is the respondent herein.
It is a developer who opposed the continuation of the proceedings before the
NCDRC on the ground that under the new consumer legislation the pecuniary
limits of the jurisdiction exercisable by the NCDRC have been enhanced and the
complaint filed by the appellant which was validly instituted under the erstwhile
law should be transferred to the SCDRC. Such a course of action will result in
thousands of cases being transferred across the country, from the NCDRC to the
SCDRCs and from the SCDRCs to the District Commission.
69. Data drawn from annual reports of the Union Ministry of Consumer Affairs
indicates pendency from financial year 2015-16 to financial year 2019-20:
Report for FY 2015-16 (figures as on 31.12.2015)53
Commissions/Forums Cases filed
since
inception
Cases
disposed of
since
inception
Cases
Pending
% of
Disposal
NCDRC 98,952 88,893 10,059 89.83
SCDRC 6,97,964 6,01,216 96,748 86.14
District Forums 36,59,486 33,73,529 2,85,957 92.19
Total 44,56,402 40,63,638 3,92,764 91.19
Report for FY 2016-17 (figures as on 31.12.2016)54
53 https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1535004604_AR_2015-
16.pdf , page 34 54 https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1535004643_AR_2016-
17.pdf , page 47
PART E
76
Commissions/Forums Cases filed
since
inception
Cases
disposed of
since
inception
Cases
Pending
% of
Disposal
NCRC 1,06,711 94,581 12,130 88.63
SCDRC 7,28,526 6,27,289 1,01,237 86.10
District Forums 38,53,422 35,51,649 3,01,773 92.17
Total 46,89,280 42,74,136 4,15,144 91.15
Report for FY 2017-18 (figures as on 29.01.2018)
55
Commissions/Forums Cases filed
since
inception
Cases
disposed of
since
inception
Cases
Pending
% of
Disposal
NCRC 1,17,430 1,00,419 17,011 85.51
SCDRC 7,57,887 6,49,606 1,08,281 85.71
District Forums 40,62,476 37,59,249 3,03,227 92.54
Total 49,37,793 45,09,274 4,28,519 91.32
Report for FY 2018-19 (figures as on 31.03.2019)56
Commissions/Forums Cases filed
since
Cases
disposed of
Cases
Pending
% of
Disposal
55 https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1535004742_AR_2017-
18.pdf , page 49 56 https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/_. , page 41
PART E
77
inception since
inception
NCDRC 1,28,152 1,08,112 20,040 84.36
SCDRC 8,29,477 7,11,507 1,17,970 85.78
District Forums 41,59,692 38,38,473 3,21,219 92.28
Total 51,17,321 46,58,092 4,59,229 91.03
Report for FY 2019-20 (figures as on 31.10.2019)57
Commissions/Forums Cases filed
since
inception
Cases
disposed of
since
inception
Cases
Pending
% of
Disposal
NCDRC 1,33,148 1,11,932 21,216 84.07
SCDRC 9,44,841 8,19,685 1,25,156 86.75
District Forums 43,05,234 39,62,438 3,42,796 92.04
Total 53,83,223 48,94,055 4,89,168 90.91
The above data indicates that as on 31 October 2019, 21,216 cases were
pending before the NCDRC and 1,25,156 cases were pending before the
SCDRC. Many of these cases would have to be transferred if the view which the
developer propounds is upheld. This will seriously dislocate the interests of
consumers in a manner which defeats the object of the legislation, which is to
protect and promote their welfare. Clear words indicative of either an express
57 https://consumeraffairs.nic.in/sites/default/files/fileuploads/annualreports/1596167686_Annual%20Report%202019-20.pdf page 45
PART E
78
intent or an intent by necessary implication would be necessary to achieve this
result. The Act of 2019 contains no such indication. The transitional provisions
contained in Sections 31, 45 and 56 expressly indicate that the adjudicatory
personnel who were functioning as Members of the District Commission, SCDRC
and NCDRC under the erstwhile legislation shall continue to hold office under the
new legislation. Such provisions are necessary because persons appointed to the
consumer fora under the Act of 1986 would have otherwise demitted office on the
repeal of the legislation. The legislature cannot be attributed to be remiss in not
explicitly providing for transfer of pending cases according to the new pecuniary
limits set up for the fora established by the new law, were that to be its intention.
The omission, when contextualized against the statutory scheme, portends a
contrary intention to protect pending proceedings through Section 107(2) of the
Act of 2019. This intention appears likely, particularly in light of previous
decisions of the NCDRC which had interpreted amendments that enhanced
pecuniary jurisdiction, with prospective effect. The NCDRC, in Southfield Paints
and Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd.58 construed
amending Act 62 of 2002 by which the pecuniary limits of jurisdiction were
enhanced with effect from 15 March 2003 as prospective by relying on its earlier
decision in Premier Automobiles Ltd. v. Dr Manoj Ramachandran59, where the
NCDRC held that the amendments enhancing the pecuniary jurisdiction
are prospective in nature [albeit on a reliance of the principle in Dhadi
Sahu(supra)]. Parliament would be conscious of this governing principle and yet
chose not to alter it in its application to the consumer fora.
58 Consumer Case No. 286 of 2000 (NCDRC) 59 Revision Petitions Nos 400 to 402 of 1993 (NCDRC)
PART E
79
70. It is accepted, that in defining the jurisdiction of the District Commission,
Section 34 of the Act of 2019 entrusts the jurisdiction to “entertain” complaints. A
similar provision is contained in Section 47 and Section 58 in regard to the
SCDRC and NCDRC. The expression “entertain” has been considered in a two
judge Bench decision of this Court in Hindusthan Commercial Bank Ltd. v.
Punnu Sahu (Dead) Through Legal Representatives60, in the context of the
provisions of Order XXI Rule 90 of the CPC. The Court has accepted that the
expression “entertain” means to adjudicate upon or proceed to consider on
merits. In Nusli Neville(supra), while considering the provisions of Section 9A of
the CPC as inserted by a Maharashtra Amendment, a two judge Bench followed
the exposition in Hindusthan Commercial Bank(supra). Undoubtedly, the
expression “entertain” has been construed in the context of Section 9A of the
Code of Civil Procedure, as amended in Maharashtra, by a three judge Bench of
this Court in Nusli Wadia(supra) to mean “to adjudicate upon or to proceed to
consider on merits”. Sections 34, 47 and 58 similarly indicate that the respective
consumer fora can entertain complaints within the pecuniary limits of their
jurisdiction. These provisions will undoubtedly apply to complaints which were
instituted after the Act of 2019 came into force. However, the mere use of the
word “entertain” in defining jurisdiction is not sufficient to counteract the
overwhelming legislative intention to ensure consumer welfare and deliberately
not provide for a provision for transfer of pending proceedings in the Act of 2019
or under Section 106 of the Act of 2019 which is a power to remove difficulties for
a period of two years after the commencement of the Act of 2019.
60 “Hindusthan Commercial Bank”; (1971) 3 SCC 124
PART F
80
F Summation
71. For the above reasons, we have come to the conclusion that proceedings
instituted before the commencement of the Act of 2019 on 20 July 2020 would
continue before the fora corresponding to those under the Act of 1986 (the
National Commission, State Commissions and District Commissions) and not be
transferred in terms of the pecuniary jurisdiction set for the fora established under
the Act of 2019. While allowing the appeals, we issue the following directions:
(i) The impugned judgment and order of the NCDRC dated 30 July 2020 and
the review order dated 5 October 2020, directing a previously instituted
consumer case under the Act of 1986 to be filed before the appropriate
forum in terms of the pecuniary limits set under the Act of 2019, shall stand
set aside;
(ii) As a consequence of (i) above, the National Commission shall continue
hearing the consumer case instituted by the appellants;
(iii) All proceedings instituted before 20 July 2020 under the Act of 1986 shall
continue to be heard by the fora corresponding to those designated under
the Act of 1986 as explained above and not be transferred in terms of the
new pecuniary limits established under the Act of 2019; and
(iv) The respondent shall bear the costs of the appellant quantified at Rupees
Two lakhs which shall be payable within four weeks.
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72. The appeals are allowed in the above terms.
73. Pending application(s), if any, stand disposed of.
…..…….….....................................................J.
[Dr Dhananjaya Y Chandrachud]
………….….....................................................J.
[M R Shah]
New Delhi;
March 16, 2021.
