Page 1 “REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 117 OF 2005

Videocon International Ltd. … Appellant

versus

Securities & Exchange Board of India … Respondent

J U D G M E N T

Jagdish Singh Khehar, J.

1.The Securities and Exchange Board of India Act, 1992 (hereinafter

referred to as, the SEBI Act) was enacted to protect the interests of investors

in securities and to promote the development of, and to regulate, the securities

market. The Securities and Exchange Board of India (hereinafter referred to

as, the Board) was vested with statutory powers to effectively deal with all

matters relating to the capital market.

2.The functions of the Board have been depicted in Section 11 of the

SEBI Act. Under Section 11 of the SEBI Act, the powers of the Board include,

the power to suspend the trading of any security in a recognized stock-

exchange; the power to restrain from accessing the securities market and

prohibit any person associated with the securities market from buying, selling

or dealing in securities; the power to suspend any office-bearer of any stock-

exchange or self-regulatory organization from holding such position; the power

Page 2 to impound and retain the proceeds or securities in respect of any transaction

which is under investigation; the power to attach after passing of an order on

an application made for approval (by the Judicial Magistrate of First Class

having jurisdiction) for a period not exceeding one month, one or more bank

account(s) of any intermediary or any person associated with the securities

market in any manner involved in violation of any of the provisions of the SEBI

Act, or the rules/regulations framed thereunder; and the power to direct any

intermediary or any person associated with the securities market in any

manner not to dispose of or alienate an asset forming part of any transaction

which is under investigation. If the Board finds (on investigation), that a

person has violated (or is likely to violate) any provision of the SEBI Act, or any

rules/regulations made thereunder, the Board is authorized under Section 11D

of the SEBI Act, to pass an order requiring the person concerned, to cease

and desist from committing or causing such violation.

3.Chapter VIA of the SEBI Act provides for penalties and adjudication.

Under Chapter VIA, a penalty can be levied, for failure to furnish information,

return or report to the Board (Section 15A, inserted with retrospective effect

from 25.1.1995); a penalty can be imposed, for failure by any person to enter

into such agreement, as he may be required (Section 15B, inserted with

retrospective effect from 25.1.1995); a penalty can also be inflicted, for failure

to redress investors’ grievances (Section 15C, inserted with retrospective

effect from 29.10.2002); a penalty can be foisted, for certain defaults in case of

mutual funds (Section 15D, inserted with retrospective effect from 25.1.1995);

2

Page 3 a penalty can be levied, for failure to observe rules and regulations by an asset

management company (Section 15E, inserted with retrospective effect from

25.1.1995); a penalty can be inflicted, for default in case of stock brokers

(Section 15F, inserted with retrospective effect from 25.1.1995); a penalty can

be imposed, for insider trading (Section 15G, inserted with retrospective effect

from 25.1.1995); a penalty can be demanded, for non-disclosure of acquisition

of shares and take-overs (Section 15H, inserted with retrospective effect from

25.1.1995/29.10.2002); a penalty can be levied, for fraudulent and unfair trade

practices (Section 15HA, inserted with retrospective effect from 29.10.2002); a

penalty can be levied, for contravention, where no separate penalty has been

provided (Section 15HB, inserted with retrospective effect from 29.10.2002).

Under Section 15-I of the SEBI Act, the Board is mandated to appoint an

‘adjudicating officer’ (not below the rank of a Division Chief), for deciding the

quantum of penalty to be imposed under Sections 15A to 15HB of the SEBI

Act.

4.A remedy of appeal to the Securities Appellate Tribunal (established

under Section 15K, by insertion of Chapter VIB into the SEBI Act, with

retrospective effect from 25.1.1995) was provided for under Section 15T of the

SEBI Act, to a person aggrieved of an order passed by the Board, or by an

‘adjudicating officer’ (for details, refer to the preceding two paragraphs). A

further remedy of appeal, was provided from an appellate order passed by the

Securities Appellate Tribunal, vide Section 15Z (inserted with retrospective

3

Page 4 effect from 15.1.1995). Section 15Z of the SEBI Act (as has been referred to

above), is being extracted hereunder:-

“15Z.Appeal to High Court-

Any person aggrieved by any decision or order of the Securities

Appellate Tribunal may file an appeal to the High Court within sixty days

from the date of communication of the decision or order of the Securities

Appellate Tribunal to him on any question of fact or law arising out of

such order."

(emphasis is ours)

A perusal of Section 15Z reveals, that when the second appellate remedy was

made available to an aggrieved party for the first time, the forum for the

second appeal was the High Court. And second appellate remedy was

available on questions of fact, as also, questions of law.

5.Section 15Z of the SEBI Act as originally enacted, was amended with

retrospective effect, from 29.10.2002. The above amendment to Section 15Z,

was brought into force by the Securities and Exchange Board of India

(Amendment) Ordinance, 2002. The Ordinance was replaced by the

Securities and Exchange Board of India (Amendment) Act, 2002. Section 15Z,

as amended is reproduced hereunder:-

“15Z.Appeal to Supreme Court-

Any person aggrieved by any decision or order of the Securities

Appellate Tribunal may file an appeal to the Supreme Court within sixty

days from the date of communication of the decision or order of the

Securities Appellate Tribunal to him on any question of law arising out of

such order.

Provided that the Supreme Court may, if it is satisfied that the applicant

was prevented by sufficient cause from filing the appeal within the said

period, allow it to be filed within a further period not exceeding sixty

days.”

(emphasis is ours)

4

Page 5 A perusal of Section 15Z, as amended, reveals that the forum of the second

appellate remedy was changed from the High Court, to the Supreme Court.

And the second appellate remedy was limited to questions of law alone, and

not on questions of fact.

6.Through the present Civil Appeal no. 117 of 2005 (arising out of Special

Leave Petition (Civil) no. 3221 of 2004), the appellant has impugned the order

passed by the High Court of Judicature at Bombay (hereinafter referred to as,

the High Court), on 13.10.2003. The High Court, through the impugned order

had examined Section 15Z of the SEBI Act (as amended by the Securities and

Exchange Board of India (Amendment) Act, 2002). The issue for

determination before the High Court was, whether the aforesaid amendment to

Section 15Z of the SEBI Act, would operate prospectively or retrospectively.

Appeals had been preferred by the Board, before the High Court assailing the

orders passed by the Securities Appellate Tribunal. All the orders under

challenge, had been passed by the Securities Appellate Tribunal before

29.10.2002. Some appeals were preferred before 29.10.2002, and one of the

appeals was preferred after 29.10.2002. The question which had arisen for

adjudication before the High Court was, whether an appeal would lie to the

High Court, after the amendment of Section 15Z of the SEBI Act. The Board

which had preferred the appeals, asserted, that all the appeals were

maintainable. The appellant before us, felt otherwise.

7.The High Court by the impugned order arrived at the conclusion, that

such of the appeals as had been filed before the coming into force of the

5

Page 6 amended Section 15Z, would not be affected by the amendment, and the High

Court had the jurisdiction to hear and dispose of the same. The High Court

also concluded, that such of the appeals as had been filed after the coming

into force of the amended Section 15Z, would not be maintainable.

8.The instant appeal has arisen with reference to the appeals which have

been held as maintainable by the High Court. According to the learned

counsel for the appellant, where the repealing Act provides for a new forum

(as in the instant case), the original remedy (or legal proceedings) cannot be

pursued after the repeal, the remedy before the new forum alone would be

available.

9.Insofar as the factual aspect of the present matter is concerned, the

impugned order which was assailed before the High Court, under the

unamended Section 15Z was disposed of before 29.10.2002. And therefore it

was felt, that the remedy available at the time when the impugned order was

passed, had to be pursued. Therefore, the pointed question to be determined

by this Court, in the present appeal would be, whether an order passed by the

Securities Appellate Tribunal before 29.10.2002 would be appealable under

the unamended provision of Section 15Z of the SEBI Act before the High

Court, or alternatively, whether the same would be appealable under the

amended provision of Section 15Z of the SEBI Act before the Supreme Court.

And also, whether the date on which the Board had preferred the appeals, was

a relevant consideration, in the facts and circumstances of the present case.

6

Page 7 10.In order to canvass the proposition which has arisen in the present

controversy, learned counsel for the appellant has vehemently contended, that

the amendment of Section 15Z, having only brought about a change in the

forum, would be deemed to have amended a procedural provision.

Accordingly it was the submission of the learned counsel, that the afore-stated

amendment would be deemed to be retrospective, specially because no

vested right can be deemed to have been taken away. It was also the

vehement contention of the learned counsel, that in the absence of a saving

clause, the pending proceedings and jurisdiction of the High Court, cannot be

deemed to have been saved. It was the contention of the learned counsel,

that a case cannot be deemed to have been entertained by a Court, till the

Court applies its mind, and as such, even the appeals preferred before the

amended Section 15Z took effect retrospectively from 29.10.2002, would be

governed by the amended provision, rather than the unamended Section 15Z

of the SEBI Act.

11.In order to support his aforesaid contention, learned counsel for the

appellant submitted, that Sections 15Y and 15Z of the SEBI Act had to be

considered together. Section 15Y is being extracted hereunder:-

“15Y.Civil court not to have jurisdiction- No civil court shall have

jurisdiction to entertain any suit or proceeding in respect of any matter

which an adjudicating officer appointed under this Act or a Securities

Appellate Tribunal constituted under this Act is empowered by or under

this Act to determine and no injunction shall be granted by any court or

other authority in respect of any action taken or to be taken in pursuance

of any power conferred by or under this Act.”

(emphasis is ours)

7

Page 8 On the basis of Section 15Y extracted above, it was the submission of the

learned counsel for the appellant, that the powers of civil courts to entertain

issues emerging out of the provisions of the SEBI Act were expressly taken

away. Section 15Y, according to the learned counsel for the appellant,

excluded even the jurisdiction of the High Court, with respect to the civil

jurisdiction vested in the High Court, in respect of matters entrusted for

adjudication, by the SEBI Act, with the adjudicating officer or with the

Securities Appellate Tribunal. In fact, according to the learned counsel, the

mandate of Section 15Y of the SEBI Act, debarred a civil court from even

granting an injunction in respect of any action taken (or to be taken) in

pursuance of any power conferred by or under the SEBI Act. It was the

contention of the learned counsel, that Section 15Z of the SEBI Act, should be

examined in the background of the intent expressed by the legislature through

Section 15Y.

12.In conjunction with the above submission, learned counsel for the

appellant invited the Court’s attention to Sections 27 and 32 of the Securities

and Exchange Board of India (Amendment) Act, 2002, which are reproduced

hereunder:-

“27.Substitution of new Section for Section 15Z- For Section 15Z of

the principal Act, the following section shall be substituted, namely:-

“15Z. Appeal to Supreme Court - Any person aggrieved by any

decision or order of the Securities Appellate Tribunal may file an appeal

to the Supreme Court within sixty days from the date of communication

of the decision or order of the Securities Appellate Tribunal to him on

any question of law arising out of such order: Provided that the

Supreme Court may, if it is satisfied that the applicant was prevented by

sufficient cause from filing the appeal within the said period, allow it to

be filed within a further period not exceeding sixty days.

8

Page 9 32. Repeal and Saving-

1. The Securities and Exchange Board of India (Amendment)

Ordinance, 2002 (Ord. 6 of 2002), is hereby repealed.

2. Notwithstanding the repeal of the Securities and Exchange Board of

India (Amendment) Ordinance, 2002 (Ord. 6 of 2002), anything done or

any action taken under the principal Act as amended by the said

Ordinance, shall be deemed to have been done or taken under the

principal Act, as amended by this Act."

(emphasis is ours)

Drawing the Court’s attention to Section 32, the contention of the learned

counsel for the appellant was, that in the absence of any saving clause, which

may have had the effect of preserving, protecting, securing or sustaining the

jurisdiction vested in respect of appeals pending before the High Court, all the

pending appeals would have to be adjudicated by the substituted forum, after

the amendment of Section 15Z of the SEBI Act. On the instant score, the

further submission of the learned counsel was, that whilst amendment to

procedure had generally retrospective effect, an amendment to a provision

vesting a substantive right was generally prospective.

13.In order to support his contentions, learned counsel for the appellant,

placed reliance on the decision in Colonial Sugar Refining Co. Ltd. v. Irving,

1905 AC 369. In the judgment relied upon, a right of appeal was available

from the Supreme Court of Queensland, to the King in Council. The aforesaid

right was taken away by the Australian Commonwealth Judiciary Act, 1903

(hereinafter referred to as, the 1903 Act). Section 39(2) of the 1903 Act,

provided for an appeal from the Supreme Court of Queensland, to the High

Court of Australia. The question which arose for determination was, whether

from a suit pending when the 1903 Act was enacted, a remedy of appeal

9

Page 10 would lie before the King in Council or before the High Court of Australia. In

the judgment relied upon, the Privy Council held as under:-

“As regards the general principles applicable to the case there was no

controversy. On the one hand, it was not disputed that if the matter in

question be a matter of procedure only, the petition is well founded. On

the other hand, if it be more than a matter of procedure, if it touches a

right in existence at the passing of the Act, it was conceded that, in

accordance with a long line of authorities extending from the time of

Lord Coke to the present day, the appellants would be entitled to

succeed. The Judiciary Act is not retrospective by express enactment or

by necessary intendment. And therefore the only question is, was the

appeal to His Majesty in Council a right vested in the appellants at the

date of the passing of the Act, or was it a mere matter of procedure? It

seems to their Lordships that the question does not admit of doubt. To

deprive a suitor in a pending action of an appeal to a superior tribunal

which belonged to him as the right is a very different thing from

regulating procedure. In principle, their Lordships see no difference

between abolishing an appeal altogether and transferring the appeal to

a new tribunal. In either case there is an interference with existing rights

contrary to the well-known general principle that statutes are not to be

held to act retrospectively unless a clear intention to that effect is

manifested.”

(emphasis is ours)

14.Learned counsel for the appellant pointed out, that the decision

rendered by the Privy Council in Colonial Sugar Refining Co. Ltd. case (supra)

was followed by this Court in Hoosein Kasam Dada (India) Ltd. v. State of

Madhya Pradesh, AIR 1953 SC 221. The issue which came up for

consideration in Hoosein Kasam Dada (India) Ltd. case (supra) was in respect

of the return filed by the appellant under the Berar Sales Tax Act, 1947

(hereinafter referred to as, the 1947 Act). The 1947 Act was amended,

requiring the payment of the entire assessed amount, as a condition

precedent, to the admission of an appeal. The Assistant Commissioner to

whom the return was transferred for disposal, made an assessment, against

10

Page 11 which the appellant preferred an appeal, without depositing the assessed tax.

The Board of Revenue was of the view, that Section 22(1) of the 1947 Act as

amended, applied to the case, as the assessment was made, and the appeal

had been preferred, after the amendment came into force. The appeal

accordingly came to be rejected. In further appeal, this Court following the

decision of the Privy Council in Colonial Sugar Refining Co. Ltd. case (supra),

as well as certain other decisions held, that a right of appeal was not merely a

matter of procedure. An appellate remedy, it was held, was a substantive

right. The right of appeal from the decision of an inferior Tribunal, becomes

vested in a party, when proceedings were first initiated before an inferior

Court. Such a vested right, it was held, could not be taken away except by an

express enactment or by necessary intendment. Accordingly, it was

concluded, that the earlier provision which created the right of appeal, would

continue to apply. The unamended provision was held, to govern the exercise

and enforcement of the right of an appeal. It is thus concluded, that there

could be no question of the amended provision divesting the aggrieved party

of its right to appeal.

15.Eventually, the above proposition of law, according to learned counsel,

came to be crystallized by the Constitution Bench judgment in Garikapati

Veeraya v. N. Subbiah Choudhary, AIR 1957 SC 540, wherein this Court

recorded its conclusions in paragraph 23, which is being extracted hereunder:-

“23. From the decisions cited above the following principle clearly

emerge :

11

Page 12 (i) That the legal pursuit of a remedy, suit, appeal and second appeal

are really but steps in a series of proceedings all connected by an

intrinsic unity and are to be regarded as one legal proceeding.

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

substantive right.

(iii) The institution of the suit carries with it the implication that all rights

of appeal then in force are preserved to the parties there to till the rest

of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the

superior Court accrues to the litigant and exists as on and from the

date the lis commences and although it may be actually exercised

when the adverse judgment is pronounced such right is to be

governed by the law prevailing at the date of the institution of the suit

or proceeding and not by the law that prevails at the date of its

decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a

subsequent enactment, if it so provides expressly or by necessary

intendment and not otherwise.”

(emphasis is ours)

The aforesaid conclusions, came to be applied in Garikapati Veeraya’s case

(supra), as is apparent from an extract of the judgment, which is being

reproduced hereunder:-

“24.In the case before us the suit was instituted on April 22, 1949, and

on the principles established by the decisions referred to above the right

of appeal vested in the parties thereto at that date and is to be governed

by the law as it prevailed on that date, that is to say, on that date the

parties acquired the right, if unsuccessful, to go up in appeal from the

sub-court to the High Court and from the High Court to the Federal

Court under the Federal Court (Enlargement of Jurisdiction) Act, 1947

read with Cl. 39 of the Letters Patent and Ss. 109 and 110 of the Code

of Civil Procedure provided the conditions thereof were satisfied. The

question for our consideration is whether that right has been taken away

expressly or by necessary intendment by any subsequent enactment.

That respondents to the application maintain that it has been so taken

away by the provisions of our Constitution.”

12

Page 13 In continuation with the conclusions drawn hereinabove, learned counsel for

the appellant placed reliance on Jose Da Costa v. Bascora Sadasiva Sinai

Narcornim, (1976) 2 SCC 917, specially, the following observations recorded

therein:-

“31. Before ascertaining the effect of the enactments aforesaid

passed by the Central Legislature on pending suits or appeals, it

would be appropriate to bear in mind two well-established principles.

The first is that "while provisions of a statute dealing merely with

matters of procedure may properly, unless that construction be

textually inadmissible, have retrospective effect attributed to them,

provisions which touch a right in existence at the passing of the statute

are not to be applied retrospectively in the absence of express

enactment or necessary intendment" (see Delhi Cloth and General

Mills Co. Ltd. v. Income-tax Commissioner, AIR 1927 PC 242.

The second is that a right of appeal being a substantive right the

institution of a suit carries with it the implication that all successive

appeals available under the law then in force would be preserved to

the parties to the suit throughout the rest of the career of the suit.

There are two exceptions to the application of this rule, viz, (1) when

by competent enactment such right of appeal is taken away expressly

or impliedly with retrospective effect and (2) when the court to which

appeal lay at the commencement of the suit stands abolished (see

Garikapatti Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540, and

Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369.

32. In the light of the above principles, these points arise for

consideration: Are the provisions of the Portuguese Civil Code relating

to reclamacao merely matters of procedure? Or, do they create or

affect vested rights and remedies? That is to say, does a reclamacao

have all the attributes of a substantive right of appeal existing at the

commencement of the suit? Did the superior Court of Appeal at Lisbon

stand abolished as an appellate forum in relation to Goa, Daman and

Diu from December 20, 1962? If so, what is its effect on the right of

appeal given by Articles 677 and 722 of the Portuguese Civil Code

and their application to the present case? Was the Portuguese

Supreme Court at Lisbon succeeded by the Supreme Court of India for

the purpose of the aforesaid Articles 677 and 722 of the Portuguese

Code? If so, did this position hold good after June 15, 1966? Does the

Central Act 30 of 1965 read with Notification No. S.O. 1597, issued

thereunder, expressly or impliedly, make inapplicable the provisions of

the Portuguese Civil Code in the matter of reclamacao in respect of a

13

Page 14 decision or Judgment rendered by the Court of Judicial Commissioner

after June 15, 1966? That is to say, have the rights, remedies or

obligations arising out of the Portuguese Law relating to reclamacao

been saved by any of the Clauses (a), (b) or (c) of the first Proviso to

Section 4(1) of Act 30 of 1966?

33. It may be noted that while a right of appeal from court to court is

a substantive right which under the then law, exists on and from the

date of the institution of the suit, the same cannot be said with regard

to reclamacao. The provisions of the Portuguese Civil Code relating to

reclamacao lay down only special rules of procedure which have to

be gone through before a litigant is entitled to raise in appeal a

material point left undecided by the lower court. The object of requiring

a party aggrieved by a 'nullity' is to save the time of the appellate Court

by precluding a party to reagitate in appeal pleas that had been left

undecided by the lower court. It also minimizes the necessity of

remands to the lower court for trial of particular issues and thus

shortens litigation. The requirement or obligation to file a reclamacao

is not an obligation in esse or/and from the institution of the suit. Nor is

the procedural right to file reclamacao-if at all it can be called a 'right'-

a vested right existing from the date of the suit. The filing of a

reclamacao is dependent upon the happening of an uncertain event.

It arises only when a Judgment suffering from a 'nullity' is passed.

Such a contingency may or may not arise. On the other hand in the

case of a suit it can be predicated that it would normally result in a

decree entitling the aggrieved party to have the suit reheard and

redecided in a higher forum by filing an appeal provided of course

such a right is available under the law prevailing at the institution of the

suit.

34. In the present case, the Judgment of the Additional Judicial

Commissioner in which the alleged "nullity" or "omission to adjudicate"

on the point of prescription occurs was delivered on January 20, 1968,

that is, long after the extension of Articles 132, 133 and 134 of the

Constitution, rules framed under Article 145 of the Constitution and

Sections 109 and 116 of the Code of Civil Procedure to Goa, Daman

and Diu. The procedural provisions of the Portuguese Code relating to

reclamacao, and appeal from a decision on reclamacao, from the High

Court in Goa, Daman and Diu stood repealed and superseded by the

extended Indian laws when the Judgment now under appeal was

rendered.”

On the instant proposition, learned counsel for the appellant last of all, placed

reliance on Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24, wherein after

14

Page 15 relying on the conclusions drawn by this Court in Dayawati v. Inderjit, AIR

1966 SC 1423, and Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4

SCC 602, as also, on K.S. Paripoornan v. State of Kerala, (1994) 5 SCC 593,

and noticing extracts therefrom, in paragraphs 25, 26 and 27 respectively, this

Court recorded its conclusions in paragraph 28. Paragraphs 25 to 28 are

accordingly being extracted hereunder:-

“25. In Dayawati v. Inderjit, AIR 1966 SC 1423, it is held thus:

"10.Now as a general proposition, it may be admitted that

ordinarily a court of appeal cannot take into account a new law.,

brought into existence after the judgment appealed from has been

rendered, because the rights of the litigants in an appeal are

determined under the law in force at the date of the suit. Even

before the days of Coke whose maxim - a new law ought to be

prospective, not retrospective in its operation - is oft-quoted,

courts have looked with disfavour upon laws which take away

vested rights or affect pending cases. Matters of procedure are,

however, different and the law affecting procedure is always

retrospective. But is does not mean that there is an absolute rule

of inviolability of substantive rights. If the new law speaks in

language, which, expressly or by clear intendment, takes in even

pending matters, the court of trial as well as the court of appeal

must have regard to an intention so expressed, and the court of

appeal may give effect to such a law even after the judgment of

the court of first instance."

26. In Hitendra Vishnu Tahkur v. State of Maharashtra, (1994) 4

SCC 602, this Court laid down the ambit and scope of an

amending act and its retrospective option as follows:

"(i) A statute which affects substantive rights is presumed to be

prospective in operation unless made retrospective, either

expressly or by necessary intendment, whereas a statute which

merely affects procedure, unless such as construction is textually

impossible, is presumed to be retrospective in its application,

should not be given an extended meaning and should be strictly

confined to its clearly defined limits.

15

Page 16 (ii) Law relating to forum and limitation is procedural in nature,

whereas law relating to right of action and right of appeal even

though remedial is substantive in nature.

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

right exists in procedural law.

(iv) a procedural statute should not generally speaking be applied

retrospective where the result would be to create new disabilities

or obligations or to impose new duties in respect of transactions

already 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."

27.In K.S. Paripoornan v. State of Kerala, (1994) 5 SCC 593, this

Court while considering the effect of amendment in the Land

Acquisition Act in pending proceedings held thus:

"67.In the instant case we are concerned with the application of

the provisions of sub-section (1-A) of Section 23 as introduced by

the Amending Act to acquisition proceedings which were pending

on the date of commencement of the Amending act. In relation to

pending proceedings, the approach of the courts in England is

that the same are unaffected by the changes in the law so far as

they relate to the determination of the substantive rights and in the

absence of a clear indication of a contrary intention in an

amending enactment, the substantive rights of the parties to an

action fall to the determined by the law as it existed when the

action was commenced and this is so whether the law is change

before the hearing of the case at the first instance or while an

appeal is pending (See Halsbury's Laws of England, 4th Edn.,

Vol. 44, para 922)".

28.From the aforesaid decisions the legal position that emerges is

that when a repeal of an enactment is followed by a fresh

legislation, such legislation does not effect the substantive rights

of the parties on the date of suit or adjudication of suit unless

such a legislation is retrospective and a court of appeal cannot

take into consideration a new law brought into existence after

the judgment appealed from has been rendered because the

rights of the parties in an appeal are determined under the law

in force on the date of the suit. However, the position in law

would be different in the matters which relate to procedural law

16

Page 17 but so far as substantive rights of parties are concerned they

remain unaffected by the amendment in the enactment.

We are, therefore, of the view that where a repeal of provisions

of an enactment is followed by fresh legislation by an amending

Act, such legislation is prospective in operation and does not

effect substantive or vested rights of the parties unless made

retrospective either expressly or by necessary intendment. We

are further of the view that there is a presumption against the

retrospective operation of a statue and further a statute is not to

be construed to have a greater retrospective operation than its

language renders necessary, but an amending act which affects

the procedure is presumed to be retrospective, unless amending

act provides otherwise. We have carefully looked into the new

substituted section 15 brought in the parent Act by the

Amendment Act, 1995 but do not find it either expressly or by

necessary implication retrospective in operation which may

affect the rights of the parties on the date of adjudication of suit

and the same is required to be taken into consideration by the

appellate Court. In Shanti Devi v. Hukum Chand, (1996) 5 SCC

768, this Court had occasion to interpret the substituted

section 15 with which we are concerned and held that on a plain

reading of section 15, it is clear that it has been introduced

prospectively and there is no question of such section affecting

in any manner the judgment and decree passed in the suit for

pre-emption affirmed by the High Court in the second appeal.

We are respectfully in agreement with the view expressed in the

said decision and hold that the substituted Section 15 in the

absence of anything in it to show that it is retrospective, does

not effect the right of the parties which accrued to them on the

date of suit or on the date of passing of the decree by the Court

of first instance. We are also of the view that present appeals

are unaffected by change in law insofar it related to

determination of the substantive rights of the parties and the

same are required to be decided in light of law of pre-emption as

it existed on the date of passing of the decree.”

(emphasis is ours)

16.Learned counsel for the appellant, however pointed out, that the

conclusions drawn by this Court, on the issue of prospectivity and

retrospectivity, with reference to substantive rights and procedural provisions,

fully support the appellants’ prayers in the instant appeal, for the simple

reason, that the amendment to Section 15Z of the SEBI Act does not deprive

17

Page 18 the appellant, of the right to second appeal. In this behalf it was submitted,

that the right of first appeal is before the Securities Appellate Tribunal,

whereas, the right to second appeal was before the High Court, prior to the

amendment under consideration. Consequent upon the amendment of

Section 15Z (with effect from 29.10.2002), the right to second appeal, which

earlier lay before the High Court, has now been vested with the Supreme

Court. According to learned counsel the right of second appeal, which was a

vested substantive right, remains preserved, even after the amendment. It

was therefore pointed out, that only the forum of the second appeal, had been

altered, from the High Court (where it lay, under the unamended provision) to

the Supreme Court of India (where it now lies, after the amendment). It was

contended, that whilst the right of second appeal was a vested substantive

right; the forum before which an appeal lies had a procedural perspective, and

had no similar connotation.

17.In support of his above submission, learned counsel for the appellant, in

the first instance, placed reliance on Maria Cristina De Souza Sodder v. Amria

Zurana Pereira Pinto, (1979) 1 SCC 92 and invited our attention to the

following observations recorded therein:-

“5. On the question as to where the appeal could be lodged we are

clearly of the view that the forum was governed by the provisions of

the Goa, Daman and Diu (Extension of Code of Civil Procedure, 1908

and Arbitration Act, 1940) Act, 1965 (Central Act XXX of 1965) read

with the provisions of the Goa, Daman & Diu Civil Court Act, 1965

(Goa Act XVI of 1965) both of which came into force simultaneously

on June 15, 1966 and the appeal was required to be filed in the

Judicial Commissioner's Court. Under the Central Act XXX of 1965

with effect from June 15, 1966 the provisions of the Indian Civil

Procedure Code were extended to the Union Territories of Goa,

18

Page 19 Daman and Diu and the corresponding provisions of the Portuguese

Code were repealed while under the Goa Act XVI of 1965 the instant

suit which was pending before the Comarca Court at Margao was

continued and decreed by corresponding Court of the Senior Civil

Judge, who ultimately decreed it on March 8, 1968. Under the Indian

Civil Procedure Code read with Section 22 of the Goa Act since the

property involved in the suit was of the value exceeding Rs.10,000/-

the appeal clearly lay to the Judicial Commissioner's Court. The

contention that since the right of appeal had been conferred by

Portuguese Code, the forum where it could be lodged was also

governed by the Portuguese Code cannot be accepted. It is no doubt

well-settled that the right of appeal is a substantive right and it gets

vested in a litigant no sooner the lis is commenced in the Court of the

first instance, and such right or any remedy in respect thereof will not

be affected by any repeal of the enactment conferring such right

unless the repealing enactment either expressly or by necessary

implication takes away such right or remedy in respect thereof. This

position has been made clear by Clauses (b) and (c) of the proviso to

Section 4 of the Central Act XXX of 1965 which substantially

correspond to Clauses (c) and (e) of Section 6 of the General Clauses

Act, 1897. This position has also been settled by the decisions of the

Privy Council and this Court (vide the Colonial Sugar Refining

Company Ltd. v. Irving, 1905 AC 369 and Garikapatti Veeraya v. N.

Subbiah Choudhury, (1957) 1 SCR 488, but the forum where such

appeal can be lodged is indubitably a procedural matter and,

therefore, the appeal, the right to which has arisen under a repealed

the Act, will have to be lodged in a forum provided for by the repealing

Act. That the forum of appeal, and also the limitation for it, are matters

pertaining to procedural law will be clear from the following passage

appearing at page 462 of Salmond's Jurisprudence (12th Edn.):

Whether I have a right to recover certain property is a question of

substantive law, for the determination and the protection of such

rights are among the ends of the administration of justice; but in

what courts and within what time I must institute proceedings are

questions of procedural law, for they relate merely to the modes in

which the courts fulfill their functions.

It is true that under Clause (c) of the proviso to Section 4 of Central

Act XXX of 1965 (which corresponds to Section 6(e) of the General

Clauses Act, 1897) it is provided that a remedy or legal proceeding in

respect of a vested right like a right to an appeal may be instituted,

continued or enforced as if this Act (meaning the repealing Act) had

not been passed. But this provision merely saves the remedy or legal

proceeding in respect of such vested right which it is open to the

litigant to adopt notwithstanding the repeal but this provision has

19

Page 20 nothing to do with the forum where the remedy or legal proceeding has

to be pursued. If the repealing Act provides new forum where the

remedy or the legal proceeding in respect of such vested right can be

pursued after the repeal, the forum must be as provided in the

repealing Act. We may point, out that such a view of Section 6(e) of

the General Clauses Act, 1897 has been taken by the Rajasthan High

Court in the case of Purshotam Singh v. Narain Singh and State of

Rajasthan, AIR 1955 Raj. 203. It is thus clear that under the repealing

enactment (Act XXX of 1965) read with Goa Enactment (Act XVI of

1965) the appeal lay to the judicial Commissioner's Court and the

same was accordingly filed in the proper Court.”

On the same proposition, and to the same effect, learned counsel placed

reliance on Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC

602, and invited our attention to the following conclusions recorded therein:-

“25. We have already noticed that Clause (b) of Sub-section (4) of

Section 20 was amended by the Amendment Act No. 43 of 1993 with

effect from 22.5.1993. Besides, reducing the maximum period

during which an accused under TADA could be kept in custody

pending investigation from one year to 180 days, the Amendment Act

also introduced Clause (bb) to Sub-section (4) of Section 20 enabling

the prosecution to seek extension of time for completion of the

investigation. Does the Amendment Act No. 43 of 1993 have

retrospective operation and does the amendment apply to the cases

which were pending investigation on the date when the Amendment

Act came into force? There may be cases where on 22.5.1993,

the period of 180 days had already expired but the period of one year

was not yet over. In such a case, the argument of learned Counsel for

the appellant is that the Act operates retrospectively and applies to

pending cases and therefore the accused should be forthwith released

on bail if he is willing to be so released and is prepared to furnish the

bail bonds as directed by the court, an argument which is seriously

contested by the respondents.

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:

20

Page 21 (i) A statute which affects substantive rights is presumed to be

prospective in operation, unless made retrospective, either

expressly or by necessary intendment, whereas a Statute which

merely affects procedure, unless such a construction is texturally

impossible, is presumed to be retrospective in its application,

should not be given an extended meaning, and should be strictly

confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature,

whereas law relating to right of action and right of appeal, even

though remedial, is substantive in nature.

(iii) Every litigant has a vested right in substantive law, but no

such right exists in procedural law.

(iv) A procedural Statute should not generally speaking be applied

retrospectively, where the result would be to create new

disabilities or obligations, or to impose new duties in respect of

transactions already 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 is ours)

In this behalf, reliance was also placed on Thirumalai Chemicals Ltd. v. Union

of India, (2011) 6 SCC 739 and our attention was invited to the following

observations recorded therein:-

“24.Right of appeal may be a substantive right but the procedure for

filing the appeal including the period of limitation cannot be called a

substantive right, and an aggrieved person cannot claim any vested

right claiming that he should be governed by the old provision

pertaining to period of limitation. Procedural law is retrospective

meaning thereby that it will apply even to acts or transactions under

the repealed Act.

25. Law on the subject has also been elaborately dealt with by this

Court in various decisions and reference may be made to few of those

decisions. This Court in Garikapati Veeraya v. N. Subbiah Choudhry,

AIR 1957 SC 540, New India Insurance Company Limited v. Shanti

Mishra, (1975) 2 SCC 840, Hitendra Vishnu Thakur v. State of

Maharashtra, (1994) 4 SCC 602, Maharaja Chintamani Saran Nath

21

Page 22 Shahdeo v. State of Bihar, (1999) 8 SCC 16, and Shyam

Sundar v. Ram Kumar, (2001) 8 SCC 24, has elaborately discussed

the scope and ambit of an amending legislation and its retrospectivity

and held that every litigant has a vested right in substantive law but no

such right exists in procedural law. This Court has held that the law

relating to forum and limitation is procedural in nature whereas law

relating to right of appeal even though remedial is substantive in

nature.

26. Therefore, unless the language used plainly manifests in

express terms or by necessary implication a contrary intention a

statute divesting vested rights is to be construed as prospective, a

statute merely procedural is to be construed as retrospective and a

statute which while procedural in its character, affects vested rights

adversely is to be construed as prospective.”

(emphasis is ours)

Based on the aforesaid determination of this Court, it was the contention of the

learned counsel for the appellant, that the amendment of Section 15Z of the

SEBI Act, whereby the appellate forum was changed from the High Court to

the Supreme Court, would necessarily have to be treated as a procedural

amendment. Having so inferred, it was the contention of the learned counsel,

based on the judgments referred to above, that the amendment under

reference, was liable to be treated as procedural. And as such, the

amendment to Section 15Z had to be treated as if, the same was a part of the

SEBI Act from the very beginning.

18.We have recorded hereinabove, the submissions advanced on behalf of

the appellant. We shall record hereinafter, the response of the learned

counsel for the respondent.

19.While responding to the submissions advanced at the hands of the

learned counsel for the appellant, learned counsel for the respondent was

satisfied, in merely relying upon judicial precedent, to contest the submissions

22

Page 23 advanced at the hands of the learned counsel for the appellant. It is therefore,

that we will hereinafter systematically narrate the judgments referred to by the

learned counsel for the respondent.

20.First of all, learned counsel placed reliance on Commissioner of Income

Tax, Orissa v. Dhadi Sahu, 1994 Supp.(1) SCC 257. In the above judgment,

the respondent, an individual assessee, had filed a return of his income for the

years 1968-69 and 1969-70. The Income Tax Officer assessed the income of

the respondent manifold higher, than what was depicted in the income tax

return. After the assessment order was passed, the matter was referred to the

Inspecting Assistant Commissioner under Section 274(2) of the Income Tax

Act, 1961, for imposing a penalty under Section 271(1)(c). During the

pendency of the above reference, Section 274(2) was amended with effect

from 1.4.1971. The Orissa High Court arrived at the conclusion, that by virtue

of the amendment to Section 274(2) of the Income Tax Act, 1961, the

Inspecting Assistant Commissioner, was no longer competent to impose the

penalty. This Court, while setting aside the order passed by the High Court,

inter alia observed as under:

“18. It may be stated at the outset that the general principle is that a law

which brings about a change in the forum does not affect pending

actions unless intention to the contrary is clearly shown. One of the

modes by which such an intention is shown is by making a provision for

change-over of proceedings, from the court or the Tribunal where they

are pending to the court or the Tribunal which under the new law gets

jurisdiction to try them.

19. Section 274(2) as it stood prior to April 1, 1971 required the Income-

tax Officer to refer the case to Inspecting Assistant Commissioner if the

minimum penalty imposable exceeded Rs.l,000.00. The Inspecting

Assistant Commissioner on a reference made by the Income-tax Officer

23

Page 24 got jurisdiction to impose penalty in such cases. The jurisdiction on

Inspecting Assistant Commissioner was conferred by virtue of the

reference. The reference was validly made by the Income-tax Officer

before April 1, 1971. The question is did the amendment to

Section 274 divest the Inspecting Assistant Commissioner of his validly

acquired jurisdiction or the amendment ousted his jurisdiction merely

because the amount of concealed income did not exceed Rs. 25,000.00

and the case did not satisfy the requirement of Section 274(2) as

amended.

20. It will be noticed that the Amending Act did not make any provision

that the references validly pending before the Inspecting Assisting

Commissioner shall be returned without passing any final order if the

amount of income in respect of which the particulars have been

concealed did not exceed Rs.25,000.00. This supports the inference

that in pending references the Inspecting Assistant Commissioner

continued to have jurisdiction to impose penalty. The previous operation

of Section 274(2) as it stood before April 1, 1971, and anything done

thereunder continued to have effect under Section 6(b) of the General

Clauses Act, 1897, enabling the Inspecting Assistant Commissioner to

pass orders imposing penalty in pending references. In our opinion,

therefore, what is material to be seen is as to when the references were

initiated. If the reference was made before April 1, 1971, it would be

governed by Section 274(2) as it stood before that date and Inspecting

Assistant Commissioner would have jurisdiction to pass the order of

penalty.

21. It is also true that no litigant has any vested right in the matter of

procedural law but where the question is of change of forum it ceases to

be a question of procedure only. The forum of appeal or proceedings is

a vested right as opposed to pure procedure to be followed before a

particular forum. The right becomes vested when the proceedings are

initiated in the Tribunal or the court of first instance and unless the

legislature has by express words or by necessary implication clearly so

indicated, that vested right will continue in spite of the change of

jurisdiction of the different Tribunals or forums.

xxx xxx xxx

25. In Manujendra Dutt v. Purmedu Prosad Roy Chowdhury, AIR 1967

SC 1419, this Court considered the effect of the deletion of Section 29 of

the Calcutta Thika Tenancy Act, 1949, by the Calcutta Thika Tenancy

(Amendment) Act, 1953 in the context of the pending action. The suit for

ejectment against a tenant was instituted in a civil court in 1947. In view

of Section 29 of the Thika Tenancy Act, 1949, the suit was transferred to

the Controller. During the pendency of the suit before the Controller,

24

Page 25 Section 29 was deleted by the Amending Act. The question that arose

was whether by deletion of Section 29 the jurisdiction of the Controller

over a pending suit was taken away. It was held by this Court that the

deletion of Section 29 did not deprive the Controller of his jurisdiction to

try the suit pending before him on the date when the Amending Act

came into force. It was pointed out that though the Amending Act did not

contain the saving clause the savings contained in Section 8 of the

Bengal General Clauses Act, 1899, corresponding to Section 6 of the

Central Act, applied and the transfer of the suit having been lawfully

made under Section 29 of the Act, its deletion by the Amending Act, did

not affect its previous operation or anything duly done thereunder.

Similarly, in Mohd. Idris v. Sat Narain, AIR 1966 SC 1499, the question

was whether the Munsif who was trying a suit under the U.P.

Agriculturists Relief Act ceased to have jurisdiction after the passing of

the U.P. Zamindari Abolition and Land Reforms (Amendment) Act, 1953,

which conferred jurisdiction on the Assistant Collector. This Court held

that the jurisdiction of the Assistant Collector was itself created by the

Abolition Act and as there was no provision in that Act that the pending

cases, were to stand transferred to the Assistant Collector for disposal,

the Munsif continued to have jurisdiction to try the suit. It was observed

that the provisions for change-over of proceedings from one court to

another are commonly found in a statute which takes away the

jurisdiction of one court and confers it to the other in pending actions.

26. Surely the Amending Act does not show that the pending

proceedings before the court on reference abate.

27. We are thus of the considered view that the advisory opinion given

by the High Court to the question referred to it was wrong and the

answer should be in favour of the appellant and it is held that the

Inspecting Assistant Commissioner to whom the case was referred prior

to April 1, 1971 had jurisdiction to impose the penalty. The view

expressed by the Allahabad High Court in CIT v. Om Sons, [1979] 116

ITR 215 (All), and the Karnataka High Court in CIT v. M.Y. Chandragi,

[1981] 128 ITR 256 (KAR), does not, therefore, lay down the correct

law.”

(emphasis is ours)

According to learned counsel, a perusal of the above judgment revealed, that

change of forum could be substantive or procedural. It would be procedural

when the remedy has yet to be availed of. But where the remedy had already

been availed of (under an existing statutory provision), the right crystallized

25

Page 26 into a vested substantive right. In the latter situation, according to learned

counsel, unless the amending provision, by express words or by necessary

implication mandates, the transfer of pending proceedings to the forum

introduced by the amendment, the forum postulated by the unamended

provision, has the jurisdiction to adjudicate upon pending matters (filed before

the amendment).

21.According to learned counsel, his submission also flows from the

mandate contained in Section 6 of the General Clauses Act, 1897. For this,

learned counsel placed reliance on Ambalal Sarabhai Enterprises Limited v.

Amrit Lal and Co., (2001) 8 SCC 397. In the above cited judgment, the

respondent-landlord had filed an eviction petition on 13.9.1985 against the

appellant, under Section 14(1)(b) of the Delhi Rent Control Act. When the

above petition was pending, Section 3(c) was brought in through an

amendment with effect from 1.12.1988. By the above amendment, the

jurisdiction of the Rent Controller, with respect to tenancies which fetched a

monthly rent exceeding Rs.3,500/-, was excluded. Consequent upon the

aforesaid amendment, the appellant-tenant contended, that the civil court

alone, had the jurisdiction to entertain the claim raised by the landlord, and

that, the eviction petition filed under the provisions of the Delhi Rent Control

Act, was no longer maintainable. While adjudicating the aforesaid dispute, this

Court held as under:

“24. We may quote here Section 6 of the General Clauses Act, 1897:

"6. Effect of repeal - Where this Act, or any Central Act or Regulation

made after the commencement of this Act, repeals any enactment

26

Page 27 hitherto made or hereafter to be made, then, unless a different intention

appears, the repeal shall not-

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

takes effect; or

(b) affect the previous operation of any enactment so repealed or

anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or

incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any

offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any

such right, privilege, obligation, liability, penalty, forfeiture or punishment

as aforesaid, and any such investigation, legal proceeding or remedy

may be instituted, continued or enforced, and any such penalty,

forfeiture or punishment may be imposed as if the repealing Act or

Regulation had not been passed."

25. The opening words of Section 6 specify the field over which it is

operative. It is operative over all the enactments under the General

Clauses Act, Central Act or Regulations made after the commencement

of General Clauses Act. It also clarifies in case of repeal of any provision

under the aforesaid Act or regulation, unless a different intention

appears from such repeal, it would have no affect over the matters

covered in its sub-clauses, viz., (a) to (e). It clearly specifies that the

repeal shall not revive anything not in force or in existence or effect the

previous operation of any enactment so repealed or anything duly done

or suffered or affect any right, privilege, obligation or liability acquired,

accrued or incurred under the repealed statute, affect any penalty,

forfeiture or punishment incurred in respect of any offence committed

under the repealed statute and also does not affect any investigation,

legal proceeding or remedy in respect of any such right, privilege,

obligation, liability, penalty, forfeiture or punishment as aforesaid. Thus

the Central theme which spells out is that any investigation or legal

proceeding pending may be continued and enforced as if the repealing

Act or Regulation had not come into force.

26. As a general rule, in view of Section 6 , the repeal of a statute, which

is not retrospective in operation, does not prima facie affect the pending

proceedings which may be continued as if the repealed enactment were

still in force. In other words such repeal does not effect the pending

cases which would continue to be concluded as if the enactment has not

been repealed. In fact when a lis commences, all rights and obligations

27

Page 28 of the parties get crystallised on that date. The mandate of Section 6 of

the General Clauses Act is simply to leave the pending proceedings

unaffected which commenced under the unrepealed provisions unless

contrary intention is expressed. We find Clause (c) of Section 6, refers

the words "any right, privilege, obligation.... acquired or accrued" under

the repealed statute would not be affected by the repealing statute. We

may hasten to clarify here, mere existence of a right not being 'acquired'

or 'accrued', on the date of the repeal would not get protection of

Section 6 of the General Clauses Act.

27. At the most, such a provision can be said to be granting a privilege

to the landlord to seek intervention of the Controller for eviction of the

tenant under the Statute. Such a privilege is not a benefit vested in

general but is a benefit granted and may be enforced by approaching

the Controller in the manner prescribed under the statute. On filing the

petition of eviction of the tenant the privilege accrued with the landlord is

not effected by repeal of the Act in view of section 6(c) and the pending

proceeding is saved under Section 6(e) of the Act.

xxx xxx xxx xxx

34. Thus we find Section 6 of the General Clauses Act covers a wider

filed and saves a wide range or proceedings referred to in its various

sub-clauses. We find two sets of cases, one where Section 6 of the

General Clauses Act is applicable and the other where it is not

applicable.

35. In cases where Section 6 is not applicable, the courts have to

scrutinise and find, whether a person under a repealed statute had any

vested right. In case he had, then pending proceedings would be saved.

However, in cases where Section 6 is applicable, it is not merely a

vested right but all those covered under various sub-clauses from (a) to

(e) of Section 6. We have already clarified right and privileges under it is

limited to those which is 'acquired' and 'accrued'. In such cases pending

proceedings is to be continued as if the statute has not been repealed.

36. In view of the aforesaid legal principle emerging, we come to the

conclusion that since proceeding for the eviction of the tenant was

pending when the repealing Act came into operation, Section 6 of the

General Clauses Act would be applicable in the present case, as it is

Landlord's accrued right in terms of Section 6. Clause (c) of

Section 6 refers to "any right" which may not be limited as a vested right

but is limited to be an accrued right. The words 'any right accrued' in

Section 6(c) are wide enough to include landlord's right to evict a tenant

in case proceeding was pending when repeal came in. Thus a pending

proceeding before the Rent Controller for the eviction of a tenant on the

date when the repealing Act came into force would not be affected by

28

Page 29 the repealing statue and will be continued and concluded in accordance

with the law as existed under the repealed statute.”

(emphasis is ours)

Based on the above determination, it was the contention of the learned

counsel, that in addition to the existence of a vested right, Section 6(c) and (e)

make it abundantly clear, that a pending legal proceeding or remedy, before

the amendment altered the forum, would continue to be available for the

adjudication of the matter, unless the amending provision by express words or

by necessary implication expressed otherwise.

22.Reliance was thereafter placed by learned counsel, on M/s. Hoosein

Kasam Dada (India) v. State of Madhya Pradesh, AIR 1953 SC 221. The

question, which arose for consideration in the cited case was, with reference to

the maintainability of an appeal preferred by the appellant, under Section 22(1)

of the Central Provinces of Berar Sales Tax Act, 1947, to the Sales Tax

Commissioner, Madhya Pradesh, against an assessment order passed by the

Assistant Commissioner. Since the appellant did not attach to the appeal any

proof of payment of tax in respect of which the appeal had been preferred, the

authorities declined to admit the appeal. The aforesaid determination by the

Sales Tax Commissioner, was assailed before the Board of Revenue, Madhya

Pradesh. It was sought to be asserted during the course of the aforesaid

appellate proceedings, that the appeal preferred by the appellant would be

governed by the proviso to Section 22(1) of the above mentioned Act, as it

stood when the assessment proceedings were initiated (i.e., before the

amendment to the proviso to Section 22(1) aforementioned). The Board of

29

Page 30 Revenue took the view, that the order of assessment was made after the

amendment to the aforesaid provision, and accordingly, the appeal would be

governed by the amended provision. It was also concluded, that the law as it

existed before the filing of the appeal, would not apply to the case. The

aforesaid determination was assailed by the appellant, before the High Court

of Madhya Pradesh, which dismissed the contention of the appellant. It is

therefore that the appellant approached this Court. On the subject referred to

hereinabove, this Court observed as under:

“4. The principle of the above decision was applied by Jenkins C.J. in

Nana v. Sheku, 32 Bom. 337(B), and by the Privy Council itself in Delhi

Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi,

AIR 1927 PC 242 (C). A Full Bench of the Lahore High Court adopted it

in Kirpa Singh v. Rasalldar Ajaipal Singh, AIR 1928 Lah. 627 (FB) (D). It

was there regarded as settled that the right of appeal was not a mere

matter of procedure but was vested right which inhered in a party from

the commencement of the action in the Court of first instance and such

right could not be taken away except by an express provision or by

necessary 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 at Alipore on the

7.10.1920. The suit having been dismissed on the 17.7.1924, the

plaintiffs appealed to the Court of the District Judge but the appeal was

dismissed. The plaintiffs then preferred a second appeal to the High

Court on the 4.10.1926. That second appeal was heard by a Single

Judge and was dismissed on the 4.4.1928. In the meantime Cl. 15 of the

Letters Patent was amended on the 14.1.1928 so as to provide that no

further appeal should lie from the decision of a Single Judge sitting in

second appeal unless the Judge certified that the case was a fit one for

appeal. In this case the learned Judge who dismissed the second

appeal on the 4.4.1928, declined to give any certificate of fitness. The

plaintiffs on the 30.4.1928, filed an appeal on the strength of Cl. 15 of

the Letters Patent as it stood before the amendment. The contention of

the appellants was that the amended clause could not be applied to that

appeal, for to do so would be to apply it retrospectively and to impair

and indeed to defeat a substantive right which was in existence prior to

the date of the amendment. The appellants claimed that on the

7.10.1920, when the suit was filed they had vested in them by the

30

Page 31 existing law a substantive right to Letters Patent appeal from the

decision of a Single Judge and that an intention to interfere with it, to

clog it with a new condition or to impair or imperil it could not be

presumed unless it was clearly manifested by express words or

necessary intendment. In giving effect to the contentions of the

appellants Rankin C.J. observed at pp. 641-642:-

"Now, the reasoning of the Judicial Committee in The Colonial Sugar

Refining Company's case (A) is a conclusive authority to show that

rights of appeal are not matters of procedure, and that the right to enter

the superior court is for the present purpose deemed to arise to a litigant

before any decision has been given by the inferior court. If the latter

proposition be accepted, I can see no intermediate point at which to

resist the conclusion that the right arises at the date of the suit."

It was held that the new clause could not be given retrospective effect

and accordingly the date of presentation of the second appeal to the

High Court was not the date which determined the applicability of the

amended clause of the Letters Patent and that the date of the institution

of the suit was the determining factor.

xxx xxx xxx

7. The case of Nagendra Nath v. Man Mohan Singha, AIR 1931 Cal.

100 (N), is indeed very much to the point. In that case the plaintiffs

instituted a suit for rent valued at Rs.1,306/15 and obtained a decree. In

execution of that decree the defaulting tenure was sold on 20.11.1928,

for Rs.1,600. On 19.12.1928, an application was made, under O. XXI,

R. 90, Civil PC, by the present petitioner, who was one of the judgment-

debtors, for setting aside the sale. That application having been

dismissed for default of his appearance the petitioner preferred an

appeal to the District Judge of Hoogly who refused to admit the appeal

on the ground that the amount recoverable in execution of the decree

had not been deposited as required by the proviso to S. 174, Cl. (c), of

the Bengal Tenancy Act as amended by an amending Act in 1928. The

contention of the petitioner was that the amended provision which came

into force on 21.2.1929, could not affect the right of appeal from a

decision on an application made on 19.12.1928, for setting aside the

sale. Mitter J. said at pp. 101-102:-

"We think the contention of the petitioner is well-founded and must

prevail. That a right of appeal is a substantive right cannot now be

seriously disputed. It is not a mere matter of procedure. Prior to the

amendment of 1928, there was an appeal against an order refusing to

set aside a sale (for that is the effect also where the application to set

aside the sale is dismissed for default) under the provisions of O. 43, R.

(1), Civil PC. That right was unhampered by any restriction of the kind

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Page 32 now imposed by S. 174(5), Proviso. The Court was bound to admit the

appeal whether appellant deposited the amount recoverable in

execution of the decree or not. By requiring such deposit as a condition

precedent to the admission of the appeal, a new restriction has been put

on the right of appeal, the admission of which is now hedged in with a

condition. There can be no doubt that the right of appeal has been

affected by the new provision and in the absence of an express

enactment this amendment cannot apply to proceedings pending at the

date when the new amendment came into force. It is true that the

appeal was filed after the Act came into force, but that circumstance is

immaterial - for the date to be looked into for this purpose is the date of

the original proceeding which eventually culminated in the appeal."

8. The above decisions quite firmly establish and our decisions in

Janardan Reddy v. The State, AIR 1951 SC 124(O), and in Ganpat Rai

v. Agarwal Chamber of Commerce Ltd., AIR 1952 SC 409 (P), uphold

the principle that a right of appeal is not merely a matter of procedure. It

is matter of substantive right. This right of appeal from the decision of an

inferior tribunal to a superior tribunal becomes vested in a party when

proceedings are first initiated in, and before a decision is given by, the

inferior court. In the language of Jenkins C.J. in Nana v. Sheku (B)

(supra) to disturb an existing right of appeal is not a mere alteration in

procedure. Such a vested right cannot be taken away except by

express enactment or necessary intendment. An intention to interfere

with or to impair or imperil such a vested right cannot be presumed

unless such intention be clearly manifested by express words or

necessary implication.

9. Sri Ganapathy Aiyar urges that the language of S. 22(1) as amended

clearly makes the section retrospective. The new proviso, it is pointed

out, pre-emptorily requires the authority not to admit the appeal unless it

be accompanied by a satisfactory proof of the payment of the tax in

respect of which the appeal is preferred and this duty the authority must

discharge at the time the appeal is actually preferred before him. The

argument is that after the amendment the authority has no option in the

matter and he has no jurisdiction to admit any appeal unless the

assessed tax be deposited. It follows, therefore, by necessary

implication, according to the learned Advocate, that the amended

provision applies to an appeal from an assessment order made before

the date of amendment as well as to an appeal from an order made after

that date. A similar argument was urged before the Calcutta Special

Bench in Sardar Ali v. Dolimuddin (E) (supra), namely, that after the

amendment the court had no authority to entertain an appeal without a

certificate from the Single Judge. Rankin C.J., repelled this argument

with the remark at p. 643 :-

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Page 33 "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-existing right of appeal continues to exist must, in its

turn, necessarily imply that the old law which created that right of appeal

must also exist to support the continuation of that right. As the old law

continues to exist for the purpose of supporting the pre-existing right of

appeal that old law must govern the exercise and enforcement of that

right of appeal and there can then be no question of the amended

provision preventing the exercise of that right. The argument that the

authority has no option or jurisdiction to admit the appeal unless it be

accompanied by the deposit of the assessed tax as required by the

amended proviso to S. 22(1) of the Act overlooks the fact of existence of

the old law for the purpose of supporting the pre-existing right and really

amounts to begging the question. The new proviso is wholly inapplicable

in such a situation and the jurisdiction of the authority has to be

exercised under the old law which so continues to exist. The argument

of Sri Ganapathy Iyer on this point, therefore, cannot be accepted.”

(emphasis is ours)

23.Thereafter, reliance was placed by the learned counsel for the

respondent on the decision rendered by this Court in Daji Saheb v. Shankar

Rao Vithalrao Mane, AIR 1956 SC 29. The factual matrix on the basis

whereof the controversy was adjudicated upon, is reflected in paragraphs 2, 3

and 4. The same are extracted hereunder:

“2.The original decree was on 20-12-1946. The decree of the High

Court allowing the plaintiff's claim was on 8-11-1949. The defendants

applied for leave to appeal to the Federal Court on 6-1-1950. The High

Court directed the trial court to find the value of the property which was

the subject-matter of the suit at the time of the suit and on the date of

the passing of the decree in appeal.

On 22-1-1951 the lower court ascertained the value as stated

above. The High Court thereafter granted leave to appeal on 1-10-

1951, overruling the objections raised by the plaintiff to the grant of such

leave.

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Page 34 3. The maintainability of this appeal has been questioned before us

by Mr. Dadachanji, learned counsel for the respondents, in a somewhat

lengthy argument. His main contention was that Art. 133 of the

Constitution applies to the case, and as the value is below Rs.20,000,

no appeal can be entertained. It is the correctness of this argument that

we have to 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 on 6-1-1950 they sought a certificate of leave to

appeal, which was bound to be granted. The Constitution establishing

the Supreme Court as the final appellate authority for India came into

force on 26-1-1950. Did the vested right become extinguished with the

abolition of the Federal Court? If the court to which an appeal lies is

altogether abolished without any forum substituted in its place for the

disposal of pending matters or for the lodgment of appeals, the vested

right perishes no doubt.

We have therefore to examine whether the Constitution which

brought the Supreme Court into being makes any provision for an

appeal from a reversing decree of the High Court prior to the date of the

Constitution respecting properties of the value of Rs. 10,000 and more

being entertained and heard by the Supreme Court.”

(emphasis is ours)

The issue raised in paragraph 4, extracted hereinabove, came to be answered

by this Court in the following manner:

“8. Though Art. 133 does not apply, we have still to see whether it is

a matter as regards which jurisdiction and powers were exercisable by

the Federal Court immediately before the commencement of the

Constitution. It is unnecessary to refer in detail to the earlier enactments

defining the jurisdiction of the Privy Council, and the Government of

India Act, 1935 establishing the Federal Court and conferring a limited

jurisdiction on the same.

It is sufficient to point out that as the law then stood, the Federal

Court had jurisdiction to entertain and hear appeals from a decree of a

High Court which reversed the lower court's decree as regards

properties of the value of more than Rs. 10,000. The aggrieved party

had a right to go before it, without any special leave being granted. It

was a matter over which jurisdiction was "exercisable" by the Federal

Court.

The Construction that it was "exercisable" only if the matter was

actually pending before the Federal Court and that it could not be said to

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Page 35 be pending until the appeal is declared admitted under Order XLV of the

Civil Procedure Code is too narrow, and does not give full and proper

scope to the meaning of the word "exercisable" in the Article. Pending

matters are dealt with under article 374(2) , and we must give some

meaning to the provisions of Art. 135 .

As soon as the decree of the High Court came into existence, the

jurisdiction of the Federal Court to hear an appeal from that decree

became exercisable, provided certain conditions as to security and

deposit were complied with, which are not material for our present

purpose.

9. Reference may be made here to paragraph 20 of the Adaptation

of Laws Order, 1950, as amended in 1951, which provides:

"Nothing in this Order shall affect the previous operation of, or anything

duly done or suffered under, any existing law, or any right, privilege,

obligation or liability already acquired, accrued or incurred under any

such law....."

By this Order section 110 , Civil PC was adapted to the new

situation but the requirement as to value was raised from 10,000 to

20,000. What is provided is that this adaptation will not affect the right

of appeal already accrued.

10. If we accede to the argument urged by the respondents, we shall

be shutting out altogether a large number of appeals, where the parties

had an automatic right to go before the Federal Court before the

Constitution and which we must hold was taken away from them for no

fault of their own, merely because the Supreme Court came into

existence in place of the Federal Court.

An interpretation or construction of the provisions of the

Constitution which would lead to such a result should be avoided, unless

inevitable. The Full Bench decision of the Madras High Court in -

Veeranna v. G. China Venkanna, AIR 1953 Mad. 878 (A), was a case

where the decree of the High Court and the application for leave to

appeal were both after the Constitution came into force.

Whether in all matters where there was a right of appeal under

section 110 of the Civil PC it continues in respect of all suits filed prior to

the Constitution is a question that does not arise for decision now.”

(emphasis is ours)

Based on the conclusions drawn by this Court, as have been extracted above,

learned counsel vehemently contested the contention advanced on behalf of

the appellant, that after the amendment of Section 15Z of the SEBI Act, the

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Page 36 right of second appeal had not been fully preserved. In this behalf it was

pointed out, that under the unamended Section 15Z, the appellate right

extended to questions of law as well as fact, whereas, under the amended

Section 15Z, the appellate right was limited to questions of law alone. As

such, it was submitted, that the effect of the amendment under reference,

could not be described as a mere change of forum. According to learned

counsel for the respondent, the amendment affected the respondent’s right to

appeal as well.

24.We have given our thoughtful consideration to the submissions

advanced at the hands of the learned counsel for the rival parties. We shall

now venture to determine the controversy which has been debated

hereinabove. So as not to be required to repeatedly express one foundational

fact, it would be pertinent to mention, that our determination, insofar as the

present controversy is concerned, is with reference to situations wherein, the

amending provision by express words or by necessary implication, does not

mandate the amendment to be either prospective or retrospective. In the

present case, the instant situation emerges from Section 32 of the Securities

and Exchange Board of India (Amendment) Act, 2002, which is silent on the

above subject.

25.First and foremost, we shall determine the veracity of the contention

advanced at the hands of the learned counsel for the appellant, that the

remedy of second appeal provided for in the unamended Section 15Z of the

SEBI Act remained unaffected by the amendment of the said provision; and on

36

Page 37 the basis of the above assumption, the learned counsel’s submission, that the

present controversy relates to an amendment which envisaged a mere change

of forum. Insofar as the instant aspect of the matter is concerned, it would be

pertinent to mention, that a right of appeal can be availed of only when it is

expressly conferred. When such a right is conferred, its parameters are also

laid down. A right of appeal may be absolute, i.e., without any limitations. Or,

it may be a limited right. The above position is understandable, from a perusal

of the unamended and amended Section 15Z of the SEBI Act. Under the

unamended Section 15Z, the appellate remedy to the High Court, against an

order passed by the Securities Appellate Tribunal, was circumscribed by the

words “…on any question of fact or law arising out of such order.”. The

amended Section 15Z, while altering the appellate forum from the High Court

to the Supreme Court, curtailed and restricted the scope of the appeal, against

an order passed by the Securities Appellate Tribunal, by expressing that the

remedy could be availed of “…on any question of law arising out of such

order.”. It is, therefore apparent, that the right to appeal, is available in

different packages, and that, the amendment to Section 15Z, varied the scope

of the second appeal provided under the SEBI Act.

26.As illustrated above, an appellate remedy is available in different

packages. What falls within the parameters of the package at the initial stage

of the lis or dispute, constitutes the vested substantive right, of the concerned

litigant. An aggrieved party, is entitled to pursue such a vested substantive

right, as and when, an adverse judgment or order is passed. Such a vested

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Page 38 substantive right can be taken away by an amendment, only when the

amended provision, expressly or by necessary intendment, so provides.

Failing which, such a vested substantive right can be availed of, irrespective of

the law which prevails, at the date when the order impugned is passed, or the

date when the appeal is preferred. For, it has repeatedly been declared by

this Court, that the legal pursuit of a remedy, suit, appeal and second appeal,

are steps in a singular proceeding. All these steps, are connected by an

intrinsic unity, and are regarded as one legal proceeding.

27.Where the appellate package, as in the present case, is expressed

differently at the “pre” and “post” amendment stages, there could only be two

eventualities. Firstly, the pre-amendment appellate package, could have been

decreased by the amendment. Or alternatively, the post-amendment package,

could have been increased by the amendment. In the former situation, all that

was available earlier, is now not available. In other words, the right of an

individual to the appellate remedy, stands reduced or curtailed. In the latter

situation, the amendment enhances the appellate package. The appellate

remedy available prior to the amendment, stands included in the amendment,

and some further addition has been made thereto. In the latter stage, all that

was available earlier continues to subsist. The two situations contemplated

hereinabove, will obviously lead to different consequences, because in the

former position, the amendment would adversely affect the right, as was

available earlier. In the latter position, the amendment would not affect the

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Page 39 right of appeal, as was available earlier, because the earlier package is still

included in the amended package.

28.In the facts and circumstances of this case, it is apparent that Section

15Z of the SEBI Act prior to the amendment, postulated that the appellate

remedy would extend to “…any question of fact or law arising out of such

order.”. Whereas, the appellate remedy was curtailed consequent upon the

amendment, whereunder the appellate right was limited to, “…any question of

law arising out of such order.”. Accordingly, by the amendment, the earlier

appellate package stands reduced, because under the amended Section 15Z,

it is not open to an appellant, to agitate an appeal on facts. That being the

position, it is not possible for us to accept the contention advanced at the

hands of the learned counsel for the appellant, that the amendment to Section

15Z of the SEBI Act, envisages only an amendment of the forum, where the

second appeal would lie. In our considered view, the amendment to Section

15Z of the SEBI Act, having reduced the appellate package, adversely

affected the appellate right vested of the concerned litigant. The right of

appeal being a vested right, the appellate package, as was available at the

commencement of the proceedings, would continue to vest in the parties

engaged in a lis, till the eventual culmination of the proceedings. Obviously,

that would be subject to an amendment expressly or impliedly, providing to the

contrary. Section 32 of the Securities and Exchange Board of India

(Amendment) Act, 2002, which has been extracted in paragraph 12

hereinabove reveals, that the ‘repeal and saving’ clause, neither expressly nor

39

Page 40 impliedly, so provides. Thus viewed, we are constrained to conclude, that the

assertion advanced at the hands of the learned counsel for the appellant, that

the instant amendment to Section 15Z of the SEBI Act, does not affect the

second appellate remedy, but merely alters the forum where the second

appellate remedy would lie, is not acceptable.

29.Having concluded, that the remedy of second appeal vested in the

respondent has not been preserved, in the same format as it was available to

the respondent, at the time of initiation of the lis between the parties; and also

having concluded, that the scope of the appellate remedy has been diminished

by the amendment, we are satisfied in holding, that amendment to Section 15Z

of the SEBI Act adversely affected the respondent, of a vested substantive

appellate right, as was available to the respondent, at the commencement of

the lis or dispute between the rival parties. Having recorded the aforesaid

conclusion, based on the judgments relied upon by the learned counsel for the

appellant, as also, by the learned counsel for the respondent, it is inevitable to

conclude, that the appellate remedy available to the respondent prior to the

amendment of Section 15Z of the SEBI Act, must continue to be available to

the respondent, despite the amendment. We accordingly hold, that all the

appeals preferred by the Board, before the High Court, were maintainable in

law.

30.Having recorded our conclusion, as has been noticed in the foregoing

paragraph, it is apparent, that insofar as the vesting of the second appellate

remedy is concerned, neither the date of filing of the second appeal, nor the

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Page 41 date of hearing thereof, is of any relevance. Legal pursuit of a remedy, suit,

appeal and second appeal, are steps in a singular proceeding. All these steps

are deemingly connected by an intrinsic unity, which are treated as one

singular proceeding. Therefore, the relevant date when the appellate remedy

(including the second appellate remedy) becomes vested in the parties to the

lis, is the date when the dispute/lis is initiated. Insofar as the present

controversy is concerned, it is not a matter of dispute, that the Securities

Appellate Tribunal had passed the impugned order (which was assailed by the

Board), well before 29.10.2002. This singular fact itself, would lead to the

conclusion, that the lis between the parties, out of which the second appellate

remedy was availed of by the Board before the High Court, came to be

initiated well before the amendment to Section 15Z by the Securities and

Exchange Board of India (Amendment) Act, 2002. Undisputedly, the

unamended Section 15Z of the SEBI Act, constituted the appellate package

and the forum of appeal, for the parties herein. It is, therefore, not possible for

us to accept, the contention advanced at the hands of the learned counsel for

the appellant, premised on the date of filing or hearing of the appeal, preferred

by the Board, before the High Court. We accordingly reiterate the position

expressed above, that all the appeals preferred by the Board, before the High

Court, were maintainable in law.

31.It was also the contention of the learned counsel for the appellant, that

in the absence of a saving clause, the pending proceedings (and the

jurisdiction of the High Court), cannot be deemed to have been saved. It is not

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Page 42 possible for us to accept the instant contention. In the judgment rendered by

this Court in Ambalal Sarabhai Enterprises Limited case (supra), it was held,

that the general principle was, that a law which brought about a change in the

forum, would not affect pending actions, unless the intention to the contrary

was clearly shown. Since the amending provision herein, does not so

envisage, it has to be concluded, that the pending appeals (before the

amendment of Section 15Z) would not be affected in any manner.

Accordingly, for the same reasons as have been expressed in the above

judgment (relevant extracts whereof have been reproduced above), we are of

the view, that the instant contention advanced at the hands of the learned

counsel for the appellant is wholly misconceived. Furthermore, the instant

contention is wholly unacceptable in view of the mandate contained in Section

6(c) and (e) of the General Clauses Act, 1897. While interpreting the aforesaid

provisions this Court has held, that the amendment of a statute, which is not

retrospective in operation, does not affect pending proceedings, except where

the amending provision expressly or by necessary intendment provides

otherwise. Pending proceedings are to continue as if the unamended

provision is still in force. This Court has clearly concluded, that when a lis

commences, all rights and obligations of the parties get crystallized on that

date, and the mandate of Section 6 of the General Clauses Act, simply

ensures, that pending proceedings under the unamended provision remain

unaffected. Herein also, therefore, our conclusion is the same as has already

been rendered by us, in the foregoing paragraphs.

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Page 43 32.Having concluded in the manner expressed in the foregoing paragraphs,

it is not necessary for us to examine the main contention, advanced at the

hands of the learned counsel for the appellant, namely, that the amendment to

Section 15Z of the SEBI Act, contemplates a mere change of forum of the

second appellate remedy. Despite the aforesaid, we consider it just and

appropriate, in the facts and circumstances of the present case, to delve on

the above subject as well. In dealing with the submission advanced at the

hands of the learned counsel for the appellant, on the subject of forum, we will

fictionally presume, that the amendment to Section 15Z by the Securities and

Exchange Board of India (Amendment) Act, 2002 had no effect on the second

appellate remedy made available to the parties, and further that, the above

amendment merely alters the forum of the second appeal, from the High Court

(under the unamended provision), to the Supreme Court (consequent upon the

amendment). On the above assumption, learned counsel for the appellant had

placed reliance on, the decisions rendered by this Court in Maria Cristina De

Souza Sodder, Hitendra Vishnu Thakur and Thirumalai Chemicals Ltd. cases

(supra) to contend, that the law relating to forum being procedural in nature, an

amendment which altered the forum, would apply retrospectively. Whilst the

correctness of the aforesaid contention cannot be doubted, it is essential to

clarify, that the same is not an absolute rule. In this behalf, reference may be

made to the judgments relied upon by the learned counsel for the respondent,

and more importantly to the judgment rendered in Commissioner of Income

Tax, Orissa case (supra), wherein it has been explained, that an amendment

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Page 44 of forum would not necessarily be an issue of procedure. It was concluded in

the above judgment, that where the question is of change of forum, it ceased

to be a question of procedure, and becomes substantive and vested, if

proceedings stand initiated before the earlier prescribed forum (prior to the

amendment having taken effect). This Court clearly declared in the above

judgment, that if the appellate remedy had been availed of (before the forum

expressed in the unamended provision) before the amendment, the same

would constitute a vested right. However, if the same has not been availed of,

and the forum of the appellate remedy is altered by an amendment, the

change in the forum, would constitute a procedural amendment, as contended

by the learned counsel for the appellant. Consequently even in the facts and

circumstances of the present case, all such appeals as had been filed by the

Board, prior to 29.10.2002, would have to be accepted as vested, and must be

adjudicated accordingly.

33.The conclusion recorded by us in the foregoing paragraph emerges

even from the mandate contained in Section 6 of the General Clauses Act,

1897. The legal contours emerging out of Section 6 aforementioned, have

already been recorded by us, and need not be repeated.

34.For the reasons recorded hereinabove, we find no merit in this appeal

and the same is accordingly dismissed. It is, however, necessary for us to

record, that the impugned order was passed with reference to a number of

appeals, which were preferred by the Board, as against a common order

passed by the Securities Appellate Tribunal. In the impugned order, some of

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Page 45 the appeals preferred by the Board were held as maintainable before the High

Court, whilst a different view was expressed with reference to the appeals

preferred by the Board after 29.10.2002. We have concluded, that all appeals

preferred by the respondent herein, before the High Court, were maintainable.

In exercise of our jurisdiction under Article 142 of the Constitution of India, we

direct, that the instant order passed by us would govern all cases which were

disposed of by the High Court through the impugned order dated 13.10.2003.

35.Disposed of accordingly.

……………………………J.

(Jagdish Singh Khehar)

……………………………J.

(M.Y. Eqbal)

New Delhi;

January 13, 2015.

45