VIDEOCON INTERNATIONAL LTD. v. SECURITIES & EXCHANGE BOARD OF INDIA

[JAGDISH SINGH KHEHAR, J.]

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. c (emphasis is ours)

In this behalf, reliance was also placed on Thirumalai Chemicals Ltd. v. Union of India, (2011) 15 SCC 739 and our attention was invited to the following observations 0 recorded therein:-

"24. Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right, and an aggrieved person cannot claim any vested right E claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act. F

25. Law on the subject has also been elaborately dealt with by this Court in various decisions and reference may be made to few of those decisions. This Court in Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540, New India Insurance Company G Limited v. Shanti Mishra, (1975) 2 SCC 840, Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, (1999) 8 SCC 16, and Shyam Sundar H

34 SUPREME COURT REPORTS [2015] 3 S.C.R.

A v. Ram Kumar, (2001) 8 SCC 24, has elaborately discussed the scope and ambit of an amending legislation and its retrospectivity and held that every litigant has a vested right in substantive law but no such right exists in procedural law. This Court has held that B the law relating to forum and limitation is procedural in nature whereas law relating to right of appeal even though remedial is substantive in nature.

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

(emphasis is ours)

E Based on the aforesaid determination of this Court, it was the contention of the learned counsel for the appellant, that the amendment of Section 15Z of the SEBI Act, whereby the appellate forum was changed from the High Court to the Supreme Court, would necessarily. have to be treated as a proc;edural amendment. Having so inferred, it was the contention of the learned counsel, based on the judgments referred to above, that the amendment under reference, was liable to be treated as procedural. And as such, the amendment to Section 15Z had to be treated as if, the same was a part of the SEBI Act from the very beginning.

18Copy pinpoint18. We have recorded hereinabove, the submissions advanced on behalf of the appellant. We shall record hereinafter, the response of the learned counsel for the

VIDEOCON·INTERNATIONAL LTD. v. SEBI 35 [JAGDISH SINGH KHEHAR, J.]

respondent. A

19Copy pinpoint19. While responding to the submissions advanced at the hands of the learned counsel for the appellant, learned counsel for the respondent was satisfied, in merely relying upon judicial precedent, to contest the submissions B advanced at the hands of the learned counsel for the appellant. It is therefore, that we will hereinafter systematically narrate the judgments referred to by the learned counsel for the respondent. c

20Copy pinpoint20. First of all, learned counsel placed reliance on Commissioner of Income Tax, Orissa v. Dhadi Sahu, 1994 Supp.(1) SCC 257. In the above judgment, the respondent, an individual assessee, had filed a return of his income for the years 1968-69 and 1969-70. The Income Tax Officer D assessed the income of the respondent manifold higher, than what was depicted in the income tax return. After the assessment order was passed, the matter was referred to the Inspecting Assistant Commissioner under Section 274(2) of the Income Tax Act, 1961, for imposing a penalty E under Section 271 (1 )(c). During the pendency of the above reference, Section 274(2) was amended with effect from 1.4.1971. The Orissa High Court arrived at the conclusion, that by virtue of the amendment to Section 274(2) of the Income Tax Act, 1961, the Inspecting Assistant F Commissioner, was no longer competent to impose the penalty. This Court, while setting aside the order passed by the High Court, inter alia observed as under:

"18. It may be stated at the outset that the general G principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrarv is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, H

36 SUPREME COURT REPORTS [2015) 3 S.C.R.

A from the court or the Tribunal where they are pending to the court or the Tribunal which under the new law gets jurisdiction to trv them.

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

20. It will be noticed that the Amending Act did not make any provision that the references validly pending before the Inspecting Assisting Commissioner shall be returned without passing any final order if the amount of income in respect of which the particulars have been concealed did not exceed Rs.25,000.00. This supports the inference that in pending references the Inspecting Assistant Commissioner continued to have jurisdiction to impose penalty. The previous operation of Section 274(2) as it stood before April 1, 1971, and anything done thereunder continued to have effect under Section 6(b) of the General Clauses Act, 1897, enabling the Inspecting Assistant Commissioner to pass orders H

VIDEOCON INTERNATIONAL LTD. v. SEBI 37

[JAGDISH SINGH KHEHAR, J.]

imposing penalty in pending references. In our opinion, therefore, what is material to be seen is as to when the references were initiated. If the reference was made before April 1, 1971, it would be governed by Section 274(2) as it stood before that date and Inspecting Assistant Commissioner would have jurisdiction to pass the order of penalty.

21Copy pinpoint21. It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the Tribunal or the court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated. that vested right will continue in spite of the change of jurisdiction of the different Tribunals or forums. E xxx xxx xxx

25. In Manujendra Dutt v. Purmedu Prasad Roy Chowdhury, AIR 1967 SC 1419, this Court considered the effect of the deletion of Section 29. of the Calcutta F Thika Tenancy Act, 1949, by the Calcutta Thika Tenancy (Amendment) Act, 1953 in the context of the pending action. The suit for ejectment against a tenant was instituted in a civil court in 1947. In view of Section 29 of the Thika Tenancy Act, 1949, the suit was G transferred to the Controller. During the pendency of the suit before the Controller, Section 29 was deleted by the Amending Act. The question that arose was whether by deletion of Section 29 the jurisdiction of the Controller over a pending suit was taken away. It was H

38 SUPREME COURT REPORTS [2015] 3 S.C.R.

A held by this Court that the deletion of Section 29 did not deprive the Controller of his jurisdiction to try the suit pending before him on the date when the Amending Act came into force. It was pointed out that though the Amending Act did not contain the saving clause the B savings contained in Section 8 of the Bengal General Clauses Act, 1899. corresponding to Section 6 of the Central Act, applied and the transfer of the suit having been lawfully made under Section 29 of the Act. its deletion by the Amending Act, did not affect its previous c operation or anything duly done thereunder. Similarly, in Mohd. Idris v. Sat Narain, AIR 1966 SC 1499, the question was whether the Munsif who was trying a suit under the U.P. Agriculturists Relief Act ceased to have jurisdiction after the passing of the U.P. Zamindari D Abolition and Land Reforms (Amendment) Act, 1953, which conferred jurisdiction on the Assistant Collector. This Court held that the jurisdiction of the Assistant Collector was itself created by the Abolition Act and as there was no provision in that Act that the pending cases. were to stand transferred to the Assistant Collector for disposal, the Munsif continued to have jurisdiction to try the suit. It was observed that the provisions for change-over of proceedings from one court to another are commonly found in a statute which takes away the jurisdiction of one court and confers it to the other in pending actions.

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

27. We are thus of the considered view that the advisory opinion given by the High Court to the question referred to it was wrong and the answer should be in H

VIDEOCON INTERNATIONAL LTD. v. SEBI 39

[JAGDISH SINGH KHEHAR, J.]

·favour of the appellant and it is held that the Inspecting A Assistant Commissioner to whom the case was referred prior to April 1, 1971 had jurisdiction to impose the penalty. The view expressed by the Allahabad High Court in CIT v. Orn Sons, [1979] 116 ITR 215 (All), and the Karnataka High Court in CIT v. M.Y. Chandragi, B [1981] 128 ITR 256 (KAR), does not, therefore, lay down the correct law."

(emphasis is ours) c According to learned counsel, a perusal of the above judgment revealed, that change of forum could be substantive or procedural. It would be procedural when the remedy has yet to be availed of. But where the remedy had already been availed of (under an existing statutory o provision), the right crystallized into a vested substantive right. In the latter situation, according to learned counsel, unless the amending provision, by express words or by necessary implication mandates, the transfer of pending proceedings to the forum introduced by the amendment, the forum postulated by the unamended provision, has the jurisdiction to adjudicate upon pending matters (filed before the amendment).

21. According to learned counsel, his submission also flows from the mandate contained in Section 6 of the General Clauses Act, 1897. For this, learned counsel placed reliance on Arnbalal Sarabhai Enterprises Limited v. Arnrit Lal and Co., (2001) 8 SCC 397. In the above cited judgment, the respondent-landlord had filed an eviction petition on 13.9.1985 against the appellant, under Section 14(1)(b) of the Delhi Rent Control Act. When the above petition was pending, Section 3(c) was brought in through an amendment with effect from 1.12.1988. By the above amendment, the jurisdiction of the Rent Controller, with H

40 SUPREME COURT REPORTS [2015] 3 S.C.R.

A respect to tenancies which fetched a monthly rent exceeding Rs.3,500/-, was excluded. Consequent upon the aforesaid amendment, the appellant-tenant contended, that the civil court alone, had the jurisdiction to entertain the claim raised by the landlord, and that, the eviction petition B filed under the provisions of the Delhi Rent Control Act, was no longer maintainable. While adjudicating the aforesaid dispute, this Court held as under:

"24. ·we may quote here Section 6 of the General C Clauses Act, 1897:

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

(a) revive anything n.ot in force or existing at the time at which the repeal takes effect; or E (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

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

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

(e) affect any investigation, legal proceeding or remedy in respect df any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation. legal proceeding or remedy may be

VIDEOCON INTERNATIONAL LTD. v. SEBI 41

[JAGDISH SINGH KHEHAR, J.]

instituted. continued or enforced. and any such penaltv, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

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

26. As a general rule. in view of Section 6. the repeal of a statute. which is not retrospective in operation. G does not prima facie affect the pending proceedings which may be continued as if the repealed enactment were still in force. In other words such repeal does not effect the pending cases which would continue to be H

42 SUPREME COURT REPORTS · (2015] 3 S.C.R.

A concluded as if the enactment has not been repealed. In fact when a lis commences. all rights and obligations of the parties get crystallised on that date. The mandate of Section 6 of the General Clauses Act is simply to leave the pending proceedings unaffected which 8 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. c We mav 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.

D 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 grant~d and may be enforced by approaching the Controller in the manner prescribed under the statute. On filing the petition of eviction of the tenant the privilege accrued with the landlord is not effected by repeal of the Act in view of section 6(c) and the pending proceeding is saved under Section 6(e) of the Act. xxx xxx xxx xxx

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

H 35. In cases where Section 6 is not applicable. the

VIDEOCON INTERNATIONAL LTD. v. SEBI 43

[JAGDISH SINGH KHEHAR, J.]

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

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

(emphasis is ours) G Based on the above determination, it was the contention of the learned counsel, that in addition to the existence of a vested right, Section 6(c) and (e) make it abundantly clear, that a pending legal proceeding or remedy, before the amendment altered H

44 SUPREME COURT REPORTS [2015] 3 S.C.R.

A the forum, would continue to be available for the adjudication of the matter, unless the amending provision by express words or by necessary implication expressed otherwise.

22Copy pinpoint22. Reliance was thereafter placed by learned counsel, on M/s. Hoosein Kasam Dada (lridia) v. State of Madhya Pradesh, AIR 1953 SC 221. The question, which arose for consideration in the cited case was, with reference to the maintainability of an appeal c preferred by the appellant, under Section 22(1) of the Central Provinces of Berar Sales Tax Act, 1947, to the Sales Tax Commissioner, Madhya Pradesh, against an assessment order passed by the Assistant Commissioner. Since the appellant did not attach to the appeal any proof of payment of tax in respect of which the appeal had been preferred, the authorities declined to admit the appeal. The aforesaid determination by the Sales Tax Commissioner, was assailed before the Board of Revenue, Madhya Pradesh. It was sought to be asserted during the course of the aforesaid appellate proceedings, that the appeal preferred by the appellant would be ·governed by the proviso to Section 22(1) of the above mentioned Act, as it stood when the assessment proceedings were initiated (i.e., before the amendment to the proviso to Section 22(1) aforementioned). The Board of Revenue took the view, that the order of assessment was made after the amendment to the aforesaid provision, and accordingly, the appeal would be governed by the amended provision. It was also concluded, that the law as it existed before the filing of the appeal, would not apply to the case. The aforesaid determination was assailed by the appellant, before the High Court of Madhya H Pradesh, which dismissed the contention of the

VIDEOCON INTERNATIONAL LTD. v. SEBI 45

[JAGDISH SINGH KHEHAR, J.]

appellant. It is therefore that the appellant approached this Court. On the subject referred to hereinabove, this Court observed as under:

"4. The principle of the above decision was applied by Jenkins C.J. in Nana v. Sheku, 32 Born. 337(8), and by the Privy Council itself in Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi, AIR 1927 PC 242 (C). A Full B<:rnch of the L~hore High Court adopted it in Kirpa Singh v. Rasalldar Ajaipal Singh, AIR 1928 Lah. 627 (FB) (D). It was there regarded as settled that the right of appeal was not a mere matter of procedure but was vested right which inhered in a _party from the commencement of the action in the Court of first instance and such right could not be taken away except by an express provision or by necessary implication.

5. In Sardar Ali v. Dolimuddin, AIR 1928 Cal. 640 (FB) (E), the suit out of which the appeal arose was filed in the Munsiff's Court atAlipore on the 7.10.1920. The suit having been dismissed on the 17. 7 .1924, the plaintiffs appealed to the Court of the District Judge but the appeal was dismissed. The plaintiffs then preferred a second appeal to the High Court on the 4.10.1926. That second appeal was heard by a Single Judge and was dismissed on the 4.4.1928. In the meantime Cl. 15 of the Letters Patent was amended on the 14.1.1928 so as to provide that no further appeal should lie from the decision of a Single Judge sitting in second appeal unless the Judge certified that the case was a fit one for appeal. In this case the learned Judge who dismissed the second appeal on the 4.4.1928, declined to give any certificate of fitness. The Rlaintiffs on the 30.4.1928, filed an appeal on the strength of Cl. 15 of H

46 SUPREME COURT REPORTS (2015] 3 S.C.R.

A the Letters Patent as it stood before the amendment. The contention of the appellants was that the amended clause could not be applied to that appeal. for to do so would be to apply it retrospectively and to impair and indeed to defeat a substantive right which was in B existence prior to the date of the amendment. The appellants claimed that on the 7.10.1920. when the suit was filed they had vested in them by the existing law a substantive right to Letters Patent appeal from the decision of a Single Judge and that an intention to c interfere with it. to clog it with a new condition or to impair or imperil it could not be presumed unless it was clearly manifested by express words or necessary intendment. In giving effect to the contentions of the appellants Rankin C.J. observed at pp. 641-642:- D "Now, the reasoning of the Judicial Committee in The Colonial Sugar Refining Company's case (A) is a conclusive authority to show that rights of appeal are not matters of procedure, and that the right to enter the superior court is for the present purpose deemed to arise to a litigant before any decision has been given by the inferior court. If the latter proposition be accepted, I can see no intermediate point at which to resist the conclusion that the right arises at the date of the suit."

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

VIDEOCON INTERNATIONAL LTD. v. SEBI 47

[JAGDISH SINGH KHEHAR, J.)

7. The case of Nagendra Nath v. Man Mohan Singha, A AIR 1931 Cal. 100 (N), is indeed very much to the point. In that case the plaintiffs instituted a suit for rent valued at Rs.1,306/15 and obtained a decree. In execution of that decree the defaulting tenure was sold on 20.11.1928, for Rs.1,600. On 19.12.1928, an B application was made, under 0. XXI, R. 90, Civil PC, by the present petitioner, who was one of the judgment- debtors, for setting aside tr:e sale. That application having been dismissed for default of his appearance the petitioner preferred an appeal to the District Judge C of Hoogly who refused to admit the appeal on the ground that the amount recoverable in execution of the decree had not been deposited as required by the proviso to S. 174, Cl. (c), of the Bengal Tenancy Act D as amended by an amending Act in 1928. The contention of the petitioner was that the amended provision which came into force on 21.2.1929, could not affect the right of appeal from a decision on an application made on 19.12.1928, for setting aside the E sale. Mitter J. said at pp. 101-102:-

"We think the contention of the petitioner is well- founded and must prevail. That a right of appeal is a substantive right cannot now be seriously disputed. It F is not a mere matter of procedure. Prior to the amendment of 1928, there was an appeal against an order refusing to set aside a sale (for that is the effect also where the application to set aside the sale is dismissed for default) under the provisions of 0. 43, G R. (1). Civil PC. That right was unhampered by any restriction of the kind now imposed by S. 174(5). Proviso. The Court was bound to admit the appeal whether appellant deposited the amount recoverable in execution of the decree or not. By requiring such H

48 SUPREME COURT REPORTS [2015] 3 S.C.R.

A deposit as a condition precedent to the admission of the appeal. a new restriction has been put on the right of appeal. the admission of which is now hedged in with a condition. There can be no doubt that the right of appeal has· been affected by the new provision and in B the absence of an express enactment this amendment cannot apply' to proceedings pending at the date when the new amendment came into force. It is true that the appeal was filed after the Act came into force, but that circumstance is immaterial - for the date to be looked c into for this purpose is the date of the original proceeding which eventually culminated in the appeal."

8. The above decisions quite firmly establish and our decisions in Janardan Reddy v. The State, AIR 1951 D SC 124(0), and in Ganpat Rai v. Agarwal Chamber of Commerce Ltd., AIR 1952 SC 409 {P), uphold the principle that a right of appeal is not merely a matter of procedure. It is matter of substantive right. This right of appeal from the decision of an inferior tribunal to a E superior trib,unal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. In the language of Jenkins C.J. in Nana v. Sheku (B) (supra) to disturb an existing F . right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or, to impair or imperil such a vested right cannot be presumed unless such intention G be clearly manifested by express words or necessarv implication.

9. Sri Ganapathy Aiyar urges that the language of S. 22(1) as .amended clearly makes the section retrospective. The new proviso. it is pointed out. pre- H

VIDEOCON INTERNATIONAL LTD. v. SEBI 49

[JAGDISH SINGH KHEHAR, J.]

emptorily requires the authority not to admit the appeal unless it be accompanied by a satisfactorv proof of the payment of the tax in respect of which the appeal is preferred and this duty the authority must discharge at the time the appeal is actually preferred before him. The argument is that after the amendment the authoritv has no option in fhe matter and he has no jurisdiction to admit any appeal unless the assessed tax be deposited. It follows. therefore. by necessary implication. according to the learned Advocate. that the amended provision applies to an appeal from an assessment order made before the date of amendment as well as to an appeal from an order made after that date. A similar argument was urged before the Calcutta Special Bench in Sardar Ali v. Dolimuddin (E) (supra), 0 namely, that after the amendment the court had no authority to entertain an appeal without a certificate from the Single Judge. Rankin C.J., repelled this argument with the remark at p. 643 :-

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

In our view the above observation is apposite and applies to the case before us. The true implication of the above observation as of the decisions in the other cases referred to above is that the pre-existing right of appeal is not destroyed by the amendment if the amendment is not made retrospective by express words or necessary intendment. The fact that the pre- G existing right of appeal continues to exist must. in its turn. necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to H

50 SUPREME COURT REPORTS [2015) 3 S.C.R.

A exist for the i;iuri;iose of sui;ii;iorting the i;ire-existing right of a1212eal that old law must govern the exercise and enforcement of that right of ai;ii;ieal and there can then be no guestion of the amended i;irovision i;ireventing the exercise of that right. The argument that the authoritll B has no oi;ition or jurisdiction to admit the ai;ii;ieal unless it be accomi;ianied bl£ the dei;iosit of the assessed tax as reguired bl£ the amended i;iroviso to S. 22(1} of the Act overlooks the fact of existence of the old law for the i;iuri;iose· of sui;ii;iorting the i;ire-existing right and c reallll amounts to begging the guestion. The new i;iroviso is whollll inai;ii;ilicable in such a situation and the jurisdiction of the authoritll has to be exercised under the old law which so continues to exist. The • argument of Sri Gana12athll Iller on this i;ioint, therefore, cannot be accei;ited."

(emphasis is ours)

23Copy pinpoint23. Thereafter, reliance was placed by the learned counsel for the respondent on the decision rendered by this Court in Daji Saheb v. Shankar Rao Vithalrao Mane, AIR 1956 SC 29. The factual matrix on the basis whereof the controversy was adjudicated upon, is reflected in paragraphs 2, 3 and 4. The same are extracted hereunder: F "2. The original decree was on 20-12-1946. The decree of the High Court allowing the plaintiff's claim was on 8-11-1949. The defendants applied for leave to appeal to the Federal Court on 6-1-1950. The High Court G directed the trial court to find the value of the property Which was the subject-matter of the suit at the time of the suit and on the date of the passing of the decree in appeal.

H On 22-1-1951 the lower court ascertained the value

VIDEOCON INTERNATIONAL LTD. v. SEBI 51

[JAGDISH SINGH KHEHAR, J.]

as stated above. The High Court thereafter granted A leave to appeal on 1-10-1951, overruling the objections raised by the plaintiff to the grant of such leave.

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

4. On the date of the decree of the High Court, the defendants had a vested right of appeal to the Federal Court. as the properties were of the requisite value, and o on 6-1-1950 they sought a certificate of leave to appeal, which was bound to be granted. The Constitution establishing the Supreme Court as the final appellate authority for India came into force on 26-1-1950. Did the vested right become extinguished with the abolition E of the Federal Court? If the court to which an appeal lies is altogether abolished without any forum substituted in its place for the disposal of pending matters or for1he lodgment of appeals, the vested right perishes no doubt. F

We have therefore to examine whether the Constitution which brought the Supreme Court into being makes any provision for an appeal from a reversing decree of the High Court prior to the date of G the Constitution respecting properties of the value of Rs. 10.000 and more being entertained and heard by the Supreme Court."

(emphasis is ours) H

52 SUPREME COURT REPORTS [2015] 3 S.C.R.

A The issue raised in paragraph 4, extracted hereinabove, came to be answered by this Court in the following manner:

"8. Though Art. 133 does not apply, we have still to see B whether it is a matter as regards which jurisdiction and powers were exercisable by the Federal Court immediately before the commencement of the Constitution. It is unnecessary to refer in detail to the earlier enactments defining the jurisdiction of the Privy C Council, and the Government of India Act, 1935 establishin!!) the Federal Court and conferring a limited jurisdiction on the same.

It is sufficient to point out that as the law then stood. D the Federal Court had jurisdiction to entertain and hear appeals from a decree of a High Court which reversed the lower court's decree as regards properties of the value of more than Rs. 10.000. The aggrieved party had a right to go before it, without any special leave being E granted. It was a matter over which jurisdiction was "exercisable" by the Federal Court.

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

As soon as the decree of the High Court came into existence, the jurisdiction of the Federal Court to hear an appeal from that decree became exercisable, I

VIDEOCON INTERNATIONAL LTD. v. SEBI 53

[JAGDISH SINGH KHEHAR, J.]

provided certain conditions as to security and deposit were complied with, which are not material for our present purpose.

9. Reference may be made here to paragraph 20 of the Adaptation of Laws Order, 1950, as amended in B 1951, which provides: "Nothing in this Order shall affect the previous operation of, or anything duly done or suffered under, any existing law, or any right, privilege, obligation or liability already C acquired, accrued or incurred under any such law..... "

By this Order section 110. Civil PC was adapted to the new situation but the requirement as to value was raised from 10.000 to 20.000. What is provided is that 0 this adaptation will not affect the right of appeal already accrued.

10. If we accede to the argument urged by the respondents, we shall be shutting out altogether a large number of appeals, where the parties had an automatic E right to go before the Federal Court before the Constitution and which we must hold was taken away from them for no fault of their own. merely because the Supreme Court came into existence in place of the F Federal Court.

An interpretation or construction of the provisions of the Constitution which would lead to such a result should be avoided, unless inevitable. The Full Bench decision of the Madras High Court in - Veeranna v. G G China Venkanna, AIR 1953 Mad. 878 (A), was a case where the decree of the High Court and the application for leave to appeal were both after the Constitution came into force. H

54 SUPREME COURT REPORTS (2015] 3 S.C.R.

A Whether in all matters where there was a right of appeal under section 110 of the Civil PC it continues in respect o( all suits filed prior to the Constitution is a question that does not arise for decision now."

B (emphasis is ours)

Based on the conclusions drawn by this Court, as have been extracted above, learned counsel vehemently contested the contention advanced on behalf of the c appellant, that after the amendment of Section 15Z of the SEBI Act, the right of second appeal had not been fully preserved. In this behalf it was pointed out, that under the unamended Section 15Z, the appellate right extended to questions of law as well as fact, whereas, under the o amended Sectton 15Z, the appellate right was limited to questions of law alone. As such, it was submitted, that the effect of the amendment under reference, could not be described as a mere change of forum. According to learned counsel for the respondent, the amendment affected the respondent's right to appeal as well.

24Copy pinpoint24. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties. We shall now venture to determine the controversy which has been debated hereinabove. So as not to be required to repeatedly express one foundational fact, it would be pertinent to mention, that our determination, insofar as the present controversy is concerned, is with reference to situations wherein, the amending provision by express words or by necessary implication, does not mandate the amendment to be either prospective or retrospective. In the present case, the instant situation emerges from Section 32 of the Securities and Exchange Board of India (Amendment) Act, 2002, which is silent on the above subject.

VIDEOCON INTERNATIONAL LTD. v. SEBI 55

[JAGDISH SINGH KHEHAR, J.]

25Copy pinpoint25. 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 u.namended Section 15Z of the SEBI Act remained unaffected by the amendment of the said provision; and on the basis of the above assumption, the learned counsel's submission, that the present controversy· relates to an amendment which envisaged a mere change of forum. Insofar as the instant aspect of the matter is concerned, it would be pertinent to mention, that a right of appeal can be availed of only when it is expressly conferred. C 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 0 amended Section 15Z of the SEBI Act. Under the unamended Section 15Z, the appellate remedy to the High Court, against an order passed by the Securities Appellate Tribunal, was circumscribed by the words " ... on any question of fact or law arising out of such order.". The E amended Section 15Z, while altering the appellate forum from the High Court to the Supreme Court, curtailed and restricted the scope of the appeal, against an order passed by the Securities Appellate Tribunal, by expressing that the remedy could be availed of "... on any question of law arising out of such order.". It is, therefore apparent, that the right to appeal, is available in different packages, and that, the amendment to Section 15Z, varied the scope of the second appeal provided under the SEBI Act.

26Copy pinpoint26. As illustrated above, an appellate remedy is available in different packages. What falls within the parameters of the package at the initial stage of the lis or dispute, constitutes the vested substantive right, of the concerned litigant. An aggrieved party, is entitled to pursue H

56 SUPREME COURT REPORTS [2015] 3 S.C.R.

A such a vested substantive right, as and when, an adverse judgment or order is passed. Such a vested substantive right can be taken away by an amendment, only when the amended provision, expressly or by necessary intendment, so provides. Failing which, such a vested substantive right can be availed of, irrespective of the law which prevails, at the date when the order impugned is passed, or the date when the appeal is preferred. For, it has repeatedly been declared by this Court, that the legal pursuit of a remedy, suit, appeal and second appeal, are steps in a singular proceeding. All these steps, are connected by an intrinsic unity, and are regarded as one legal proceeding.

27Copy pinpoint27. Where the appellate package, as in the present case, is expressed differently at the "pre" and "post" D amendment stages, there could only be two eventualities. Firstly, the pre-amendment appellate package, could have been decreased by the amendment. Or alternatively, the post-amendment package, could have been increased by the amendment. In the former situation, all that was available earlier, is now not available. In other words, the right of an individual to the appellate remedy, stands reduced or curtailed. In the latte~ situation, the amendment enhances the appellate package. The appellate remedy available prior to the amendment, stands included in the amendment, and some further addition has been made thereto. In the latter stage, all that was available earlier continues to subsist. The two situations contemplated hereinabove, will obviously lead to different consequences, because in the former position, the amendment. would adversely affect the right, as was available earlier. In the latter position, the amendment would not affect the right of appeal, as was available earlier, because the earlier package is still 'included in the amended package.

28Copy pinpoint28. In the facts and circumstances of this case, it is

VIDEOCON INTERNATIONAL LTD. v. SEBI 57

[JAGDISH SINGH KHEHAR, J.]

apparent that Section 15Z of the SEBI Act prior to the amendment, postulated that the appellate remedy would extend to "... any question of fact or law arising out of such order.". Whereas, the appellate remedy was curtailed consequent upon the amendment, whereunder the appellate right was limited to, "... any question of law arising out of such order.". Accordingly, by the amendment, the earlier appellate package stands reduced, because under the amended Section 15Z, it is not open to an appellant, to agitate an appeal on facts. That being the position, it is not possible for us to accept the contention advanced at the hands of the learned counsel for the appellant, that the amendment to Section 15Z of the SEBI Act, envisages only an amendment of the forum, where the second appeal would lie. In our considered view, the amendment to Section 0 15Z of the SEBI Act, having reduced the appellate package, adversely affected the appellate right vested of the concerned litigant. The right of appeal being a vested right, the appellate package, as was available at the commencement of the proceedings, would continue to vest in the parties engaged in a lis, till the eventual culmination of the proceedings .. Obviously, that would be subject to an amendment expressly or impliedly, providing to the contrary. Section 32 of the Securities and Exchange Board of India (Amendment) Act, 2002, which has been extracted in paragraph 12 hereinabove reveals, that the 'repeal and saving' clause, neither expressly nor impliedly, so provides. Thus viewed, we are constrained to conclude, that the assertion advanced at the hands of the learned counsel for the appellant, that the instant amendment to Section 15Z G of the SEBI Act, does not affect the second appellate remedy, but merely alters the forum where the second appellate remedy would lie, is not acceptable.

29Copy pinpoint29. Having concluded, that the remedy of second H

58 SUPREME COURT REPORTS [2015) 3 S.C.R.

A appeal vested in the respondent has not been preserved, in the same format as it was available to the respondent, at the time of initiation of the lis between the parties; and also having concluded, that the scope of the appellate remedy has been diminished by the amendment, we are satisfied in holding, that amendment to Section 15Z of the SEBI Act adversely affected the respondent, of a vested substantive appellate right, as was available to the respondent, at the commencement of the lis or dispute between the rival parties. Having recorded the aforesaid conclusion, based on the judgments relied upon by the learned counsel for the appellant, as also, by the learned counsel for the respondent, it is inevitable to conclude, that the appellate remedy available to the respondent prior to the amendment of Section 15Z of the SEBI Act, must 0 continue to be available to the respondent, despite the amendment. We accordingly hold, that all the appeals preferred by the Board, befpre the High Court, were maintainable in law.

30Copy pinpoint30. Having recorded our conclusion, as has been noticed in the foregoing paragraph, it is apparent, that insofar as the vesting of the second appellate remedy is concerned, neither the date of filing of the second appeal, nor the date of hearing thereof, is of any relevance. Legal pursuit of a remedy, suit, appeal and second appeal, are steps in a singular proceeding. All these steps are deemingly connected by an intrinsic unity, which are treated as one singular proceeding. Therefore, the relevant date when the appellate remedy (including the second appellate remedy) becomes vested in the parties to the lis, is the date when the dispute/lis is initiated. Insofar as the present controversy is concerned, it is not a matter of dispute, that the Securities Appellate Tribunal had passed the impugned order (which was assailed by the Board), well before

VIDEOtON INTERNATIONAL LTD. v. SEBI 59

[JAGDISH SINGH KHEHAR, J.)

29.10.2002. This singular fact itself, would lead to the conclusion, that the lis between the parties, out of which the second appellate remedy was availed of by the Board before the High Court, came to be initiated well before the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, 2002. Undisputedly, the unamended Section 15Z of the SEBI Act, constituted the appellate package and the forum of appeal, for the part_ies herein. It is, therefore, not possible for us to accept, the contention advanced at the hands of the learned counsel for the appellant, premised on the date of filing or hearing c of the appeal, preferred by the Board, before the High Court. We accordingly re!terate the position expressed above, that all the appeals preferred by the Board, before the High Court, were maintainable in law. D

31Copy pinpoint31. It was also the contention of the learned counsel for the appellant, that in the absence of a saving clause, the periding proceedings (and the jurisdiction of the High Court), cannot be deemed to have been saved. It is not possible for us to accept the instant contention. In the judgment rendered by this Court in Ambalal Sarabhai Enterprises Limited case (supra), it was held, that the general principle was, that a law which brought about a change in the forum, would not affect pending actions, unless the intention to the contrary was clearly shown. Since the amending provision herein, does not so envisage, it has to be concluded,. that the pending appeals (before the amendment of Section 15Z) would not be affected in any manner. Accordingly, for the same reasons as have been expressed in the above judgment (relevant extracts whereof have been reproduced above), we are of the view, that the instant contention advanced at the hands of the learned counsel for the appellant is wholly misconceived. Furthermore, the instant contention is wholly unacceptable H

60 SUPREME COURT REPORTS (2015) 3 S.C.R.

A in view of the mandate contained in Section 6(c) and (e) of the General Clauses Act, 1897. While interpreting the aforesaid provisions this Court has held, that the. amendment of a statute, which is not retrospective in operation, does not affect pending proceedings, except where the amending provision expressly or by necessary intendment provides otherwise. Pending proceedings are to continue as if the unamended provision is still in force. This Court has clearly concluded, that when a lis commences, all rights and obligations of the parties get crystallized on that date, and the mandate of Section 6 of the General Clauses Act, simply ensures, that pending proceedings under the unamended provision remain unaffected. Herein also, therefore, our conclusion is the same as has already been rendered by us, in the foregoing paragraphs. 0

32Copy pinpoint32. Having conclude;d 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 E Section 15Z of the SEBI Act, contemplates a mere change of forum of the second appellate remedy. Despite the aforesaid, we consider it just and appropriate, in the facts and circumstances of the present case, to delve on the F above subject as well. In dealing with the submission advanced at the hands of the learned counsel for the appellant, on the subject of forum, we will fictionally presume, that the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, G ,2002 had no effect on the second appellate remedy made available to the parties, an.d 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 H ·the above assumption, learned counsel for the appellant

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[JAGDISH SINGH KHEHAR, J.]

had placed reliance on, the decisions rendered by this Court A in Maria Cristina De Souza Sodder, Hitendra Vishnu Thakur and Thirumalai Chemicals Ltd. cases (supra) to contend, that the law relating to forum being procedural in nature, an amendment which altered the forum, would apply retrospectively. Whilst the correctness of the aforesaid B 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 r12lied upon by the learned counsel for the respondent, and more importantly to the judgment rendered in Commissioner of Income Tax, Orissa C case (supra), wherein it has been explained, that an amendment of forum would not necessarily be an issue of procedure. It was concluded in the above judgment, that where the question is of change of forum, it ceased to be D 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 qlearly 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.

33Copy pinpoint33. The conclusion recorded by us in the foregoing paragraph emerges even from the mandate contained in Section 6 of the General Clauses Act, 1897. The legal H

62 SUPREME COURT REPORTS [2015] 3 S.C.R.

A contours emerging out of Section 6 aforementioned, have already been recorded by us, and need not be repeated.

34Copy pinpoint34. For the reasons recorded hereinabove, we find n·o · merit in this appeal and the same is accordingly dismissed. B It is, however, necessary for us to record,· that the impugned a order was passed with reference to number of appeals, which were preferred by the Board, as against a common order passed by the Securities Appellate Tribunal. In the . impugned order, some of the appeals preferred by the C Board were held as maintainable before the High Court, whilst a different view was expressed with reference to the appeals preferred by the Board after 29.10.2002. We have concluded, that all appeals preferred by the respondent herein, before the High Court, were maintainable. In D exercise of our jurisdiction under Article 142 of the Constitution of India, we direct, that the instant order passed by us would govern all cases which were disposed of by the High Court through the impugned order dated 13.10.2003. E

35Copy pinpoint35. Disposed of accordingly.

Kalpana K. Tripathy Appeal disposed of.