Supreme Court of India
VIDEOCON INTERNATIONAL LTD.versusSECURITIES & EXCHANGE BOARD OF INDIA
- Citation
- 2015 INSC 27
- Decided
- 13 January 2015
- Disposal
- Disposed off
- Bench
- S KHEHAR
Holding
The amendment to Section 15Z, which reduced the appellate package, adversely affected the vested substantive right of appeal, and in the absence of an express saving provision, pending second appeals filed before the amendment remain maintainable under the pre‑amended provision.
Summary
Videocon International Ltd. appealed against SEBI's order that some of its second appeals to the High Court were not maintainable after the amendment of Section 15Z of the SEBI Act. The amendment, effective 29‑Oct‑2002, shifted the second appellate forum from the High Court to the Supreme Court and limited the scope to questions of law only. The Supreme Court held that the pre‑amended appellate package constituted a vested substantive right, which cannot be withdrawn by amendment unless the amendment expressly or by necessary intendment provides so. Since Section 32 of the SEBI (Amendment) Act, 2002 contains no saving clause, the amendment does not affect pending appeals filed before its commencement. Consequently, all the Board's appeals filed before the amendment remain maintainable under the original provision. The Court dismissed the appeal, directing that the High Court's earlier orders be upheld.
Issues considered
- The amendment to Section 15Z of the SEBI Act, which changed the forum and scope of the second appeal, whether it affects the vested right of appeal for appeals filed before the amendment.
- Whether the amendment operates prospectively or retrospectively in relation to pending appeals.
- Whether a vested substantive right of appeal can be taken away by amendment absent an express saving provision.
- The relevance of the date of filing or hearing of the second appeal to the vesting of the right.
- Whether Section 32 of the SEBI (Amendment) Act, 2002 provides a saving clause preserving pending appeals.
Legislation cited
- General Clauses Act, 1897s. 6(c), s. 6(e)
- Securities and Exchange Board of India Act, 1992s. 15Y, s. 15Z
- Securities and Exchange Board of India (Amendment) Act, 2002s. 32
Subjects
right of appealvested rightsubstantive rightprocedural amendmentretrospective effectGeneral Clauses ActSEBI ActSection 15Zforum changeappellate jurisdictionsaving clausepending proceedingsArticle 142
Judgment
[2015] 3 S.C.R. 1
VIDEOCON INTERNATIONAL LTD. A
v.
SECURITIES & EXCHANGE BOARD OF INDIA
(Civil Appeal No. 117 of 2005) B
JANUARY 13, 2015
[JAGDISH SINGH KHEHAR AND M.Y. EQBAL, JJ.]
Securities and Exchange Board of India Act, 1992 - c
s.15Z (as amended by the Securities and Exchange Board
of India (Amendment) Act, 2002 and given effect from
29.10.2002) - Second appeal- Second appellate remedy
(pre-amendment) was before High Court on the questions
of facts as well as Jaw - Post-amendment the remedy was D
altered to before Supreme Court on the question of law
alone - Second appeals filed before High Court -
Maintainability of, in view of amendment of s. 15Z - High
Court held that the appeals filed before 29.10.2002 (before
coming into force· of amended s. 15Z) were maintainable E
while those filed after 29.10.2002 (after coming into force
of amended s. 15Z) were not maintainable - On appeal,
held: 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 to a lis F
till an eventual culmination of proceedings - Such vested
substantive right can be taken away by an amendment only
when the amending provision so provides - Failing which
such vested substantive right can be availed of irrespective
of the law which prevails at the date when the impugned G
order is passed or the date when appeal is preferred - The
scope of s. 15Z was varied by amendment thereof, and
. therefore it was not a mere change of forum - The
1 H
2 SUPREME COURT REPORTS [2015) 3 S.C.R.
A amendment having restricted the scope of s. 15Z to only
question of law, adversely affected the appellate right
vested, of the concerned litigant - Since the remedy of
second appeal vested in the respondent has not been
preserved, in the same format as it was available to the
B respondent, at the time of initiation of the lis between the
parties; and since the scope of the appellate remedy has
been diminished by the amendment, amendment to Section
15Z adversely affected the respondent, of a vested
substantive appellate right, as was available to the
C ·respondent, at the commencement of the lis or dispute
between the rival parties - Therefore, the appellate remedy
available to the respondent prior to the amendment of s. 15Z
must continue to be available to the respondent, despite
the amendment - The general principle is, that a law which
0
brought about a change in the forum, would not affect
pending actions, unless the intention to the contrary was
clearly shown - In view of the mandate contained in s. 6(c)
and (e) of the General Clauses Act also the amendment of
E . 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 - All the appeals
F preferred by the Board, before the High Court, were
maintainable in law - In exercise ofjurisdiction under Article
142 of the Constitution it is directed that the instant order
would govern all the cases which were disposed of by the
High Court through the impugned order.
G
Disposing of the appeal, the Court
HELD: 1. 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
H
VIDEOCON INTERNATIO~AL LTD. v. SEBI 3
f
appeal may be absolute, or it may be a limited right. A
Under the unamended Section 15Z of Securities and
Exchange Board of India Act, 1992 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 arisigg out of B
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
T~ibunal, by expressing that the remedy could be C
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 Securities and D
Exchange Board of India Act, 1992. [para 25] {55-C-G]
2. What falls within the parameters of the package
at the initial stage of the /is or dispute, constitutes the
vested substantive right, of the concerned litigant. An E
aggrieved party, is entitled to pursue such a vested
substantive right, as and when, an adverse judgment
or order is passed. Such a vested substantive right can
be taken away by an amendment, only when the
amended provision, expressly or by necessary
intendment, so provides. Failing which, such a vested F
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. The legal pursuit of a remedy, suit, appeal
and second appeal, are steps in a singular proceeding. G
All these steps, are connected by an intrinsic unity, and
are regarded as one legal proceeding. [para 26] [55-G-
H; 56-A-C]
3. By the amendment, the earlier appellate package H
4 SUPREME COURTREPORTS [2015] 3 S.C.R.
A stands reduced, because under the amended Section
15Z, it is not open to an appellant, to agitate an appeal
on facts. Therefore, it cannot be said that the
amendment to Section 15Z of the SEBI Act, envisages
only an amendment of the forum, where the second
B appeal would lie. 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
c commencement of the proceedings, would continue to
vest in the parties engaged in a /is, 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
D
and Exchange Board of India (Amendment) Act, 2002,
neither expressly nor impliedly, so provides. Thus, it
cannot be said that the amendment to Section 15Z of
the SEBI Act, does not affect t~e second appellate
E remedy, but merely alters the forum where the second
appellate remedy would lie. [para 28] [57-8-G]
4. Since 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
F
initiation of the /is between the parties; and since the
scope of the appellate remedy has been diminished by
the amendment, amendment to Section 15Z of the SEBI
Act adversely affected the respondent, of a vested
G substantive appellate right, as was available to the
respondent, at the commencement of the /is or dispute
between the rival parties. Therefore, the appellate
remedy available to the respondent prior to the
amendment of Section 15Z of the SEBI Act, must
.
H continue to be available to the respondent, despite the
·~
VIDEOCON INTERNATIONAL LTD. v. SEBI 5
amendment. Accordingly, all the appeals preferred by A
the Board, before the High Court, were maintainable in
law. [para 29] [57-H; 58-A-E]
5. Insofar as the vesting of the second appellate
remedy is concerned, neither the date of filing of the B
second appeal, nor the date of hearing thereof, is of any
relevance. Legal pursuit of a remedy, suit, appeal and
second appeal, are steps in a singular proceeding. All
these steps are deemingly connected by an intrinsic
unity, which are treated as one singular proceeding. C
Therefore, the relevant date when the appellate remedy
(including the second appellate remedy) becomes
vested in the parties to the /is, is the date when the
dispute//is is initiated. The /is between the parties, out
of which the second appellate remedy was availed of D
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. [para 30] [58-F-H; 59-A-B]
E
6. It is not correct to say 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. The general principle is, that a law
which brought about a change in the forum, would not' F
affect pending actions, unless the intention to the
contrary was clearly shown. Since the amending
provision in the present case does not so envisage, the
pending appeals (before the amendment of Section 15Z)
would not be affected in any manner.[para 31] [59-D- G
G]
Ambalal Sarabhai Enterprises Limited v. Amrit Lal and
Co. 2001 (2) Suppl. SCR 195 =(2001) 8 sec 397 - relied
on.
H
6 SUPREME COURT REPORTS (2015] 3 S.C.R.
A 7. In view of the mandate contained in Section 6(c)
and (e) of the General. Clauses Act, 1897, the
amendment of a statute, which is not retrospective in
operation, does not affect pending proceedings, except
where the amending provision expressly or by
B necessary intendment provides otherwise. Pending
proceedings are to continue as if the unamended
provision is still in force. [para 31] [60-A-B]
8. Even if· it is assumed that the amendment to
C 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, an amendment of forum
D would not necessarily be an issue of procedure. Where
the question is of change of forum, it ceased to be a
question of procedure, and becomes substantive and
vested, if proceedings stood initiated before the earlier
prescribed forum (prior to the amendment having taken
E effect). If the appellate remedy had been availed of
(before the forum expressed in the unamended
provision) before the amendment, the same would
constitute a vc:isted right. However, if the same has not
F 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. In the
present case, all such appeals as had been filed by the
Board, prior to enforcement of the amendment Act,
G would have to be accepted as vested, and must be
adjudicated accordingly. [para 32] [61-B-G]
Commissioner of Income Tax, Orissa v. Dhadi Sahu
1992 (3) Suppl. SCR 168 =1994 Supp. (1) sec 257 -
H relied on.
VIDEOCON INTERNATIONAL LTD. v. SEBI 7
Maria Cristina De Souza Sodder v. Amria Zurana A
Pereira Pinto (1979) 1 SCC 92; Hitendra Vishnu Thakur v.
State of Maharashtra 1994 (1) Suppl. SCR 360 = (1994) 4
SCC 602; Thirumalai Chemicals Ltd. v. Union of India 2011
(4) SCR 838 = (2011) 6 SCC 739 • referred to.
B
9. In the impugned order, some of the appeals
preferred by the Board were held as maintainable
before the High Court, whilst a different view was
expressed with reference to the appeals preferred by
the Board after 29.10.2002 i.e. after enforcement of the C
amendment Act, the appeals preferred before the High
Court, were maintainable. In exercise of jurisdiction .
under Article 142 of the Constitution of India, it is
directed that the instant order would govern all the
cases which were disposed of by the High Court D
through the impugned order. [para 34] [62-C-E]
Hoosein Kasam Dada (India) Ltd. v. State of Madhya
Pradesh 1953 SCR 987 =AIR 1953 SC 221; Garikapati
Veeraya v. N. Subbiah Choudhary 1957 SCR 488 =AIR E
1957 SC 540; Jose Da Costa v. Bascora Sadasiva Sinai
Narcornim (1976) 2 SCC 917; Shyam Sunder v. Ram
Kumar(2001) 8 SCC 24, Dayawati v. lnderjit AIR 1966 SC
1423, Hitendra Vishnu Thakur v. State of Maharashtra,
(1994) 4 SCC 602; and K.S. Paripooman v. State of Kera/a, F
(1994) 5 SCC 593; Daji Saheb v. Shankar Rao Vithalrao
Mane 1955 SCR 872 =AIR 1956 SC 29 - referred to.
Colonial Sugar Refining Co. Ltd. v. Irving 1905 AC 369
-~~~ G
Case Law Reference
1905AC 369 referred to para 13
1953 SCR 987 referred to para 14 H
8 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 1957 SCR488 referred to para 15
(1976) 2 sec 917 referred to para 15
AIR 1966 SC 1423 referred to para 15
B 1955 SCR 72 referred to para 23
2001 (2) Suppl. SCR 195 relied on para 31
1979 (1) sec 92 referred to para 32
1994 (1) Suppl. SCR 360 referred to para 32
c
2011 (4) SCR 838 referred to para 32
1992 (3) Suppl. SCR 168 relied on para 32 ·
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
D 117 of 2005.
From the Judgment and Order dated 13.10.2003 of the
High Court of Bombay iri SEBI Appeal No. 9 of 2002.
E Jatin Zaveri, Neel Kamal Mishra for the Appellant.
Altaf Ahmed, Bhargava V. Desai, Shreyas Mehrotra for
the Respondent.
The Judgment of the Court was delivered by
F
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,
G 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.
H 2. The functions of the Board have been depicted in
VIDEOCON INTERNATIONAL LTD. v. SEBI 9
[JAGDISH SINGH KHEHAR, J.)
Section 11 of the SEBI Act. Under Section 11 of the SEBI A
Act, the powers pf the Board include, the power to suspend
the trading of any security in a recognized stock-exchange;
the .-ower to restrain from access)ng the securities market
and prohibit any person associated with the securities
market from buying, selling or dealing in securities; the B
power to suspend any office-bearer of any stock-exchange
or self-regulatory organization from holding such position;
the power to impound and retain the proceeds or securities
in respect of any transaction which is under investigation;
the power to attach after passing of an order on an C
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
0
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 E
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
\
Sectio~ 11 D of the SEBI Act, to pass an order requiring the F
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 G
levied, fo.r 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 H
10 SUPREME COURT REPORTS [2015] 3 S.C.R.
A from 25.1.1995); a penalty can also be inflicted, for failure
to redress investors' grievances (Section 1~c. inserted with
retrospective effect from 29.10.2002); a penalty can be
foisted, for certain defaults in case of mutual funds (Section
150, inserted with retrospective effect from 25.1.1995); a
B 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
C 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/
0
29.10.2002); a penalty can be levied, for fraudulent and
unfair trade practices (Section 15HA, inserted wi.th
retrospective effect from 29.10.2002); a penalty can be
levied, for contravention, where no separate penalty has
E . been provided (Section 15HB, inserted with retrospective
effect from 29.10.2002). Under Section 15-1 of the SEBI Act,
the Board is mandated to appoint ah 'adjudicating officer'
(not below the rank of a Division Chief), for deciding the
quantum of penalty to be imposed under Sections 15A to
F 15HB of the SEBI Act.
4. A remedy of appeal to the Securities Appellate
Tribunal (established under Section 15K, by insertion of
Chapter VIB int~ the SEBI Act, with retrospective effect from
G 25.1.1995) was provided for under Section 15T of ~he 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
H ·Appellate Tribunal, vide Section 15Z (inserted with
VIDEOCON INTERNATIONAL LTD. v. SEBI 11
[JAGDISH SINGH KHEHAR, J.]
retrospective effect from 15.1.1995). Section 15Z of the A
SEBI Act (as has tieen referred to above), is being extracted
hereunder:-
"15Z. Appeal to High Court-
Any person aggrieved by any decision or order of the B
Securities Appellate Tribunal may file an appeal to the
High Court within sixty days from the date of
communication of th.e decision or order of the Securities
Appellate Tribunal to him on anv question of fact or law
arising out of such order." C
(emphasis is ours)
A perusal of Section 15Z reveals, that when the second
appellate remedy was made available to an aggrieved party
0
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. E
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 F
(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 G
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. H
12 SUPREME COURT REPORTS [2015] 3 S.C.R. ~
\.
A 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 perio9 not exceeding sixty days."
(emphasis is ours)
B
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
c 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
D 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
E 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
F
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
G for adjudication before the High Court was, whether an
appeal would lie to the High Court, after the amendment of
Section 15Z oft.he SEBI Act. The Board which had preferred
the appeals', asserted, that all the appeals were
maintainable. The appellant before us, felt otherwise.
H 7. The High Court by the impugned order arrived at the
•
VIDEOCON INTERNATIONAL LTD. v. SEBI 13
[JAGDISH SINGH KHEHAR, J.]
conclusion, that such of the appeals as had been filed A
before the coming into force of the amended Section 15Z,
would not be affected by the amendment, and the High
Court had the jurisdiction to hear and dispose of the same.
The High Court aiso concluded, that such of the appeals
as had been filed aft.er the coming into force of the amended B
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, C
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.
D
9. lns['.>far 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 E
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
S.ecurities Appellate Tribunal before 29.10.2002 would be
appealable under the unamended provision of Section 15Z F
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 G
consideration, in the facts and circumstances of the present
case.
10. In order to canvass the proposition which has arisen
in the present controversy, learned counsel for the appellant H
14 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 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
B retrospective, specially because no vested right can be
deemed to have been take'1 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
C . 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
0
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
E 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
F 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
G 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)
H On the basis of Section 15Y extracted above, it was
VIDEOCON INTERNATIONAL LTD. v. SEBI 15
[JAGDISH SINGH KHEHAR, J.]
tbe submission of the learned counsel for the appellant, that A
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, B
in respect of matters entrusted for adjudication, by the SEBI
Act, with the adjudicating officer or with the Securities
Appellate Tribunal. In fact, accorci\lig 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 C
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 examineq in the background of the intent
0
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 E
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 F
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 G
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 H
16 SUPREME COURT REPORTS (2015] 3 S.C.R
A period not exceeding sixty days.
32. Repeal and Saving-
1. The Securities and Exchange Board of India
(Amendment) Ordinance, 2002 (Ord. 6 of 2002), is
B
hereby repealed.
2. Notwithstanding the repeal of the Securities and
Exchange Board of India (Amendment) Ordinance,
2002 (Ord. 6 of 2002), anvthing done or any action
c 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)
D
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
th,e effect of preserving, protecting, securing or sustaining
E 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
F 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
G 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
H
VIDEOCON INTERNATIONAL LTD. v. SEBI 17
(JAGDISH SINGH KHEHAR, J.]
Australian Commonwealth Judiciary Act, 1903 (hereinafter A
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 B
appeal would lie before the King in Council or before the
High Court of Australia. In the judgment relied. upon, the
Privy Council held as under:-
"As regards the general principles applicable to the C
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 D
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 E
Act is not retrospective by exp.ress 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 F
seems to their ,Lordships that the question does not
admit of doubt. To deprive a suitor iri 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 G
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 H
18 SUPREME COURT REPORTS [2015] 3 S.C.R.
••
A 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
8
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
c (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
D Commissioner to whom the return was transferred for
. disposal, made an assessment, against which the appellant
preferred an appeal, without depositing the assessed tax.
The Board of Revenue was of the view, that Section 22( 1)
of the 1947 Act as amended, applied to the case, as the
E 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 ofthe Privy Council in Colonial Sugar
Refining Co. Ltd. case (supra), as well as certain other
F 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.
G 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
H to apply. The unamended provision was held, to govern the
VIDEOCON INTERNATIONAL LTD. v. SEBI 19
[JAGDISH SINGH KHEHAR, J.]
exercise and enforcement of the right of an appeal. It is thus A
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 B
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:-
c
"23. From the decisions cited above the following
principle clea(ly emerge :
(i) That the lepal pursuit of a remedy, suit. appeal and
second appeal are really but steps in a series of
0
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.
E
(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 __Qf
the career of the suit.
F
(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 c~mmences
and although it may be· actually exercised when the
adverse judgment is pronounced such right is to be G
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.
H
20 SUPREME COURT REPORTS [2015] 3 S.C.R.
A (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."
B (emphasis is ours)
The aforesaid conclusions, came to be applied in
Garikapati Veeraya's case (supra), as is apparent from an
' of the judgment, which is being reproduced
extract
c 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
D
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 tlie High Court to the Federal
E 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
F 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."
G
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
sec 917, specially, the following observations recorded
H therein:-
VIDEOCON INTERNATIONAL LTD. v. SEBI 21
[JAGDISH SINGH KHEHAR, J.]
"31. Before ascertaining the effect of the A
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, B
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 C
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 · D
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) E
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 Chaudhry, AIR 1957 F
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 G
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? H
22 SUPREME COURT REPORTS (2015] 3 S.C.R.
A 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
B 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
c Central Act 30 of 1965 read with Notification No. S.O.
1597, issued thereunder, expressly or impliedly, make
inapplicable the provisions of the Portuguese Civil Code
in the matter of reclamacao in respect of a decision or
D. 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
E Section 4(1) of Act 30 of 1966?
33. It may be noted that while a right of appeal from
court to court isa 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
F
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
G 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
H remands to the lower court for trial of particular issues
VIDEOCON INTERNATIONAL LTD. v. SEBI 23
[JAGDISH SINGH KHEHAR, J.]
and thus shortens litigation. The requirement or A
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 B
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 C
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.
D
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 E
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 F
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." G
On the instant proposition, learned counsel for the
appellant last of all, placed reliance on Shyam Sunder v.
Ram Kumar, (2001) 8 SCC 24, wherein after relying on the
conclusions drawn by this Court in Dayawati v. lnderjit, AIR H
24 SUPREME COURT REPORTS ' [2015] 3 S.C.R.
A . 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
B paragraph 28. Paragraphs 25 to 28 are accordingly being
extracted hereunder:-
"25. In Dayawati v. lnderjit, AIR 1966 SC 1423, it is
held thus:
c
"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
D 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
E 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,
F 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
G 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
H as follows:
VIDEOCON INTERNATIONAL LTD. v. SEBI 25
[JAGDISH SINGH KHEHAR, J.]
"(i) A statute which affects substantive rights is A
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 B
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 C
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. o
(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. E
(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." F
27. In K.S. P"aripoornan v. State of Kerala, (1994) 5
sec 593, this ~ourt while considering the effect of
amendment in the Land Acquisition Act in pending
proceedings held thus:
G
"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 H
26 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 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
B 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
c 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
D 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
E judgment appealed from has been rendered because
the rights of the parties in 1an appeal are determined
under the law in force on the date of the suit. However,
the position in law would be different in the matters
which relate to procedural law but so far as substantive
F
rights of parties are concerned they remain unaffected
by the am~ndment 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
G 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 necessarv intendment. We are further
of the view that there is a presumption against the
H retrospective operation of a statue and further a statute
VIDEOCON INTERNATIONAL LTD. v. SEBI 27
[JAGDISH SINGH KHEHflR, J.]
is not to be construed to have a greater retrospective A
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 B
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 C
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
0
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 E
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. F
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 G
the decree."
(emphasis is ours)
16. Learned counsel for the appellant, however pointed H
28 SUPREME COURT REPORTS (2015] 3 S.C.R.
A 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
B does not deprive the appellant, of the right to second
appeal. In this behalf it was submitted, that the right of first
appeal is before the Securities Appellate Tribunal, whereas,
the right to second appeal was before the High Court, prior
to the amendment under consideration. Consequent upon
C 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
D 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
E 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.
F
17. In support of his above submission, learned counsel
for the appellant, in the first instance, placed reliance on
Maria Cristina De Souza Sadder v. Amria Zurana Pereira
Pinto, (1979) 1 SCC 92 and invited our attention to the
G 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
H
VIDEOCON INTERNATIONAL LTD. v. SEBI 29
[JAGDISH SINGH KHEHAR, J.]
Arbitration Act, 1940) Act, 1965 (Central Act XXX of A
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 B
XXX of 1965 with effect from June 15, 1966 the
provisions of the Indian Civil Procedure Code were
extended to the Union Territories of Goa, Daman and
Diu and the corresponding provisions of the Portuguese
Code were repealed while under the Goa Act XVI of C
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
0
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 E
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 F
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 G
position has been made clear by Clauses (bl 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 H
30 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 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.
B 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
c 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
D 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
proceeding's are questions of procedural law. for they
relate merely to the modes in which the courts fulfill
E 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,
F 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
G proceeding in respect of such vested right which it is
open to the litigant to adopt notwithstanding the repeal
but this prpvision has nothing to do with the forum
where the remedy or· legal proceeding has to be
pursued. If the repealing Act provides new forum where
H
VIDEOCON INTERNATIONAL LTD. v. SEBI 31
[JAGDISH SINGH KHEHAR, J.]
the remedy or the legal proceeding in respect of such A
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 B
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." C
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 D
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 E
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 F
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 G
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 H
32 SUPREME COURT REPORTS (2015] 3 S.C.R.
A 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
B 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
c 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
D scope of an Amending Act and its retrospective
operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed
to be prospective in operation' unless. rnade
E 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,
F 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
G of appeal. even though remedial. is substantive in
nature.
(iii) Everv litigant has a vested right in substantive law.
but no such right exists in procedural law.
H (iv) A procedural Statute should not generally speaking
VIDEOCON INTERNATIONAL LTD. v. SEBI 33
[JAGDISH SINGH KHEHAR, J.]
be applied retrospectively, where the result would be A
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 B
also creates new rights and liabilities. shall be
construed to· be prospective in operation, unless
otherwise provided. either expressly or by necessary
implication.
c
(emphasis is ours)
In this behalf, reliance was also placed on Thirumalai
Chemicals Ltd. v. Union of India, (2011) 15 SCC 739 and
our attention was invited to the following observations
0
recorded therein:-
"24. Right of appeal may be a substantive right but
the procedure for filing the appeal including the period
of limitation cannot be called a substantive right, and
an aggrieved person cannot claim any vested right E
claiming that he should be governed by the old
provision pertaining to period of limitation. Procedural
law is retrospective meaning thereby that it will apply
even to acts or transactions under the repealed Act.
F
25. Law on the subject has also been elaborately
dealt with by this Court in various decisions and
reference may be made to few of those decisions. This
Court in Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540, New India Insurance Company G
Limited v. Shanti Mishra, (1975) 2 SCC 840, Hitendra
Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC
602, Maharaja Chintamani Saran Nath Shahdeo v.
State of Bihar, (1999) 8 SCC 16, and Shyam Sundar H
34 SUPREME COURT REPORTS [2015] 3 S.C.R.
A v. Ram Kumar, (2001) 8 SCC 24, has elaborately
discussed the scope and ambit of an amending
legislation and its retrospectivity and held that every
litigant has a vested right in substantive law but no such
right exists in procedural law. This Court has held that
B the law relating to forum and limitation is procedural
in nature whereas law relating to right of appeal even
though remedial is substantive in nature.
26. Therefore, unless the language used plainly
c manifests in express terms or by necessary implication
a contrary intention a statute divesting vested rights is
to be construed as prospective, a statute merely
procedural is to be construed as retrospective and a
statute which while procedural in its character, affects
D vested rights adversely is to be construed as
prospective."
(emphasis is ours)
E Based on the aforesaid determination of this Court, it
was the contention of the learned counsel for the appellant,
that the amendment of Section 15Z of the SEBI Act,
whereby the appellate forum was changed from the High
Court to the Supreme Court, would necessarily. have to be
F treated as a proc;edural amendment. Having so inferred, it
was the contention of the learned counsel, based on the
judgments referred to above, that the amendment under
reference, was liable to be treated as procedural. And as
such, the amendment to Section 15Z had to be treated as
G 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
H hereinafter, the response of the learned counsel for the
VIDEOCON·INTERNATIONAL LTD. v. SEBI 35
[JAGDISH SINGH KHEHAR, J.]
respondent. A
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 B
advanced at the hands of the learned counsel for the
appellant. It is therefore, that we will hereinafter
systematically narrate the judgments referred to by the
learned counsel for the respondent.
c
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 D
assessed the income of the respondent manifold higher,
than what was depicted in the income tax return. After the
assessment order was passed, the matter was referred to
the Inspecting Assistant Commissioner under Section
274(2) of the Income Tax Act, 1961, for imposing a penalty E
under Section 271 (1 )(c). During the pendency of the above
reference, Section 274(2) was amended with effect from
1.4.1971. The Orissa High Court arrived at the conclusion,
that by virtue of the amendment to Section 274(2) of the
Income Tax Act, 1961, the Inspecting Assistant F
Commissioner, was no longer competent to impose the
penalty. This Court, while setting aside the order passed by
the High Court, inter alia observed as under:
"18. It may be stated at the outset that the general G
principle is that a law which brings about a change in
the forum does not affect pending actions unless
intention to the contrarv is clearly shown. One of the
modes by which such an intention is shown is by
making a provision for change-over of proceedings, H
36 SUPREME COURT REPORTS [2015) 3 S.C.R.
A from the court or the Tribunal where they are pending
to the court or the Tribunal which under the new law
gets jurisdiction to trv them.
19. Section 274(2) as it stood prior to April 1, 1971
B required the Income-tax Officer to refer the case to
Inspecting Assista'nt Commissioner if the minimum
penalty imposable exceeded Rs.l,000.00. The
Inspecting Assistant Commissioner on a reference
made by the Income-tax Officer got jurisdiction to
c impose penalty in such cases. The jurisdiction on
Inspecting Assistant Commissioner was conferred by
virtue of the reference. The reference was validly made
by the Income-tax Officer before April 1, 1971. The
question is did the amendment to Section 274 divest
D 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
E 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
F 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
G to impose penalty. The previous operation of Section
274(2) as it stood before April 1, 1971, and anything
done thereunder continued to have effect under Section
6(b) of the General Clauses Act, 1897, enabling the
Inspecting Assistant Commissioner to pass orders
H
VIDEOCON INTERNATIONAL LTD. v. SEBI 37
[JAGDISH SINGH KHEHAR, J.]
imposing penalty in pending references. In our opinion, A
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 B
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 C
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 D
legislature has by express words or by necessary
implication clearly so indicated. that vested right will
continue in spite of the change of jurisdiction of the
different Tribunals or forums.
E
xxx xxx xxx
25. In Manujendra Dutt v. Purmedu Prasad Roy
Chowdhury, AIR 1967 SC 1419, this Court considered
the effect of the deletion of Section 29. of the Calcutta F
Thika Tenancy Act, 1949, by the Calcutta Thika
Tenancy (Amendment) Act, 1953 in the context of the
pending action. The suit for ejectment against a tenant
was instituted in a civil court in 1947. In view of Section
29 of the Thika Tenancy Act, 1949, the suit was G
transferred to the Controller. During the pendency of
the suit before the Controller, Section 29 was deleted
by the Amending Act. The question that arose was
whether by deletion of Section 29 the jurisdiction of the
Controller over a pending suit was taken away. It was H
38 SUPREME COURT REPORTS [2015] 3 S.C.R.
A held by this Court that the deletion of Section 29 did
not deprive the Controller of his jurisdiction to try the
suit pending before him on the date when the Amending
Act came into force. It was pointed out that though the
Amending Act did not contain the saving clause the
B savings contained in Section 8 of the Bengal General
Clauses Act, 1899. corresponding to Section 6 of the
Central Act, applied and the transfer of the suit having
been lawfully made under Section 29 of the Act. its
deletion by the Amending Act, did not affect its previous
c operation or anything duly done thereunder. Similarly,
in Mohd. Idris v. Sat Narain, AIR 1966 SC 1499, the
question was whether the Munsif who was trying a suit
under the U.P. Agriculturists Relief Act ceased to have
jurisdiction after the passing of the U.P. Zamindari
D
Abolition and Land Reforms (Amendment) Act, 1953,
which conferred jurisdiction on the Assistant Collector.
This Court held that the jurisdiction of the Assistant
Collector was itself created by the Abolition Act and as
E 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
F 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
G pending proceedings before the court on reference
abate.
27. We are thus of the considered view that the
advisory opinion given by the High Court to the question
referred to it was wrong and the answer should be in
H
VIDEOCON INTERNATIONAL LTD. v. SEBI 39
[JAGDISH SINGH KHEHAR, J.]
·favour of the appellant and it is held that the Inspecting A
Assistant Commissioner to whom the case was referred
prior to April 1, 1971 had jurisdiction to impose the
penalty. The view expressed by the Allahabad High
Court in CIT v. Orn Sons, [1979] 116 ITR 215 (All), and
the Karnataka High Court in CIT v. M.Y. Chandragi, B
[1981] 128 ITR 256 (KAR), does not, therefore, lay
down the correct law."
(emphasis is ours)
c
According to learned counsel, a perusal of the above
judgment revealed, that change of forum could be
substantive or procedural. It would be procedural when the
remedy has yet to be availed of. But where the remedy had
already been availed of (under an existing statutory o
provision), the right crystallized into a vested substantive
right. In the latter situation, according to learned counsel,
unless the amending provision, by express words or by
necessary implication mandates, the transfer of pending
proceedings to the forum introduced by the amendment, the E
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 F
flows from the mandate contained in Section 6 of the
General Clauses Act, 1897. For this, learned counsel placed
reliance on Arnbalal Sarabhai Enterprises Limited v. Arnrit
Lal and Co., (2001) 8 SCC 397. In the above cited
judgment, the respondent-landlord had filed an eviction G
petition on 13.9.1985 against the appellant, under Section
14(1)(b) of the Delhi Rent Control Act. When the above
petition was pending, Section 3(c) was brought in through
an amendment with effect from 1.12.1988. By the above
amendment, the jurisdiction of the Rent Controller, with H
40 SUPREME COURT REPORTS [2015] 3 S.C.R.
A respect to tenancies which fetched a monthly rent
exceeding Rs.3,500/-, was excluded. Consequent upon the
aforesaid amendment, the appellant-tenant contended, that
the civil court alone, had the jurisdiction to entertain the
claim raised by the landlord, and that, the eviction petition
B filed under the provisions of the Delhi Rent Control Act, was
no longer maintainable. While adjudicating the aforesaid
dispute, this Court held as under:
"24. ·we may quote here Section 6 of the General
C Clauses Act, 1897:
"6. Effect of repeal - Where this Act. or any Central Act
or Regulation made after the commencement of this
Act. repeals any enactment hitherto made or hereafter
o to be made, then. unless a different intention appears.
the repeal shall not-
(a) revive anything n.ot in force or existing at the time
at which the repeal takes effect; or
E (b) affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder;
or
(c) affect any right. privilege. obligation or liability
F 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
G enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy
in respect df any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid, and any
H such investigation. legal proceeding or remedy may be
VIDEOCON INTERNATIONAL LTD. v. SEBI 41
[JAGDISH SINGH KHEHAR, J.]
instituted. continued or enforced. and any such penaltv, A
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 B
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, C
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 D
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 E
not affect any investigation, legal proceeding or remedy
in respect of a.ny such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid. Thus the
Central theme which spells out is that any investigation F
or legal proceeding pending may be continued and
enforced as if the repealing Act or Regulation had not
come into force.
26. As a general rule. in view of Section 6. the repeal
of a statute. which is not retrospective in operation. G
does not prima facie affect the pending proceedings
which may be continued as if the repealed enactment
were still in force. In other words such repeal does not
effect the pending cases which would continue to be H
42 SUPREME COURT REPORTS · (2015] 3 S.C.R.
A concluded as if the enactment has not been repealed.
In fact when a lis commences. all rights and obligations
of the parties get crystallised on that date. The mandate
of Section 6 of the General Clauses Act is simply to
leave the pending proceedings unaffected which
8 commenced under the unrepealed provisions unless
contrary intention is expressed. We find Clause (c) of
Section 6, refers the words "any right, privilege,
obligation .... acquired or accrued" under the repealed
statute would not be affected by the repealing statute.
c We mav hasten to clarify here. mere existence of a right
not being 'acquired' or 'accrued', on the date of the
repeal would not get protection of Section 6 of the
General Clauses Act.
D 27. At the most, such a provision can be said to be
granting a privilege to the landlord to seek intervention
of the Controller for eviction of the tenant under the
Statute. Such a privilege is not a benefit vested in
general but is a benefit grant~d and may be enforced
E 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
F
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
G proceedings referred to in its various sub-clauses. We
find two sets of cases, one where Section 6 of the
General Clauses Act is applicable and the other where
it is not applicable.
H 35. In cases where Section 6 is not applicable. the
VIDEOCON INTERNATIONAL LTD. v. SEBI 43
[JAGDISH SINGH KHEHAR, J.]
courts have to scrutinise and find. whether a person A
under a repealed statute had any vested right. In case
he had. then pending proceedings would be saved.
However, in cases where Section 6 is applicable, it is
not merely a vested right but all those covered under
various sub-clauses from (a) to (e) of Section 6. We B
have already clarified right and privileges under it is
limited to those which is 'acquired' and 'accrued'. In
such cases pending proceedings is to be continued as
if the statute has not been repealed.
c
36. In view of the aforesaid legal principle emerging,
we come to the conclusion that since proceeding for
the eviction of the tenant was pending when the
repealing Act came into operation, Section 6 of the
General Clauses Act would be applicable in the present D
case, as it is Landlord's accrued right in terms of
Section 6. Clause (c) of Section 6 refers to "any right"
which may not be limited as a vested right but is limited
to be an accrued right. The words 'any right accrued'
in Section 6(c) are wide enough to include landlord's E
right to evict a tenant in case proceeding was pending
when repeal came in. Thus a pending proceeding
before the Rent Controller for the eviction of a tenant
on the date when the repealing Act came into force F
would not be .affected by the repealing statue and will
be continued and concluded in accordance with the law
as existed under the repealed statute."
(emphasis is ours)
G
Based on the above determination, it was the
contention of the learned counsel, that in addition to
the existence of a vested right, Section 6(c) and (e)
make it abundantly clear, that a pending legal
proceeding or remedy, before the amendment altered H
44 SUPREME COURT REPORTS [2015] 3 S.C.R.
A the forum, would continue to be available for the
adjudication of the matter, unless the amending
provision by express words or by necessary implication
expressed otherwise.
B 22. Reliance was thereafter placed by learned counsel,
on M/s. Hoosein Kasam Dada (lridia) v. State of
Madhya Pradesh, AIR 1953 SC 221. The question,
which arose for consideration in the cited case was,
with reference to the maintainability of an appeal
c preferred by the appellant, under Section 22(1) of the
Central Provinces of Berar Sales Tax Act, 1947, to the
Sales Tax Commissioner, Madhya Pradesh, against an
assessment order passed by the Assistant
Commissioner. Since the appellant did not attach to the
D 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
E 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
F
amendment to the proviso to Section 22(1)
aforementioned). The Board of Revenue took the view,
that the order of assessment was made after the
amendment to the aforesaid provision, and accordingly,
the appeal would be governed by the amended
G
provision. It was also concluded, that the law as it
existed before the filing of the appeal, would not apply
to the case. The aforesaid determination was assailed
by the appellant, before the High Court of Madhya
H Pradesh, which dismissed the contention of the
VIDEOCON INTERNATIONAL LTD. v. SEBI 45
[JAGDISH SINGH KHEHAR, J.]
appellant. It is therefore that the appellant approached A
this Court. On the subject referred to hereinabove, this
Court observed as under:
"4. The principle of the above decision was applied by
Jenkins C.J. in Nana v. Sheku, 32 Born. 337(8), and B
by the Privy Council itself in Delhi Cloth and General
Mills Co. Ltd. v. Income-tax Commissioner, Delhi, AIR
1927 PC 242 (C). A Full B<:rnch of the L~hore High
Court adopted it in Kirpa Singh v. Rasalldar Ajaipal
Singh, AIR 1928 Lah. 627 (FB) (D). It was there C
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 D
by necessary implication.
5. In Sardar Ali v. Dolimuddin, AIR 1928 Cal. 640 (FB)
(E), the suit out of which the appeal arose was filed in
the Munsiff's Court atAlipore on the 7.10.1920. The suit E
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 F
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 G
for appeal. In this case the learned Judge who
dismissed the second appeal on the 4.4.1928, declined
to give any certificate of fitness. The Rlaintiffs on the
30.4.1928, filed an appeal on the strength of Cl. 15 of H
46 SUPREME COURT REPORTS (2015] 3 S.C.R.
A the Letters Patent as it stood before the amendment.
The contention of the appellants was that the amended
clause could not be applied to that appeal. for to do
so would be to apply it retrospectively and to impair and
indeed to defeat a substantive right which was in
B existence prior to the date of the amendment. The
appellants claimed that on the 7.10.1920. when the suit
was filed they had vested in them by the existing law a
substantive right to Letters Patent appeal from the
decision of a Single Judge and that an intention to
c interfere with it. to clog it with a new condition or to
impair or imperil it could not be presumed unless it was
clearly manifested by express words or necessary
intendment. In giving effect to the contentions of the
appellants Rankin C.J. observed at pp. 641-642:-
D
"Now, the reasoning of the Judicial Committee in The
Colonial Sugar Refining Company's case (A) is a
conclusive authority to show that rights of appeal are
not matters of procedure, and that the right to enter the
E 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
F
the suit."
It was held that the new clause could not be given
retrospective effect and accordingly the date of
presentation of the second appeal to the High Court
G was not the date which determined the applicabilitv of
the amended clause of the Letters Patent and that the
date of the institution of the suit was the determining
factor.
H xxx xxx xxx
VIDEOCON INTERNATIONAL LTD. v. SEBI 47
[JAGDISH SINGH KHEHAR, J.)
7. The case of Nagendra Nath v. Man Mohan Singha, A
AIR 1931 Cal. 100 (N), is indeed very much to the point.
In that case the plaintiffs instituted a suit for rent valued
at Rs.1,306/15 and obtained a decree. In execution of
that decree the defaulting tenure was sold on
20.11.1928, for Rs.1,600. On 19.12.1928, an B
application was made, under 0. XXI, R. 90, Civil PC,
by the present petitioner, who was one of the judgment-
debtors, for setting aside tr:e sale. That application
having been dismissed for default of his appearance
the petitioner preferred an appeal to the District Judge C
of Hoogly who refused to admit the appeal on the
ground that the amount recoverable in execution of the
decree had not been deposited as required by the
proviso to S. 174, Cl. (c), of the Bengal Tenancy Act D
as amended by an amending Act in 1928. The
contention of the petitioner was that the amended
provision which came into force on 21.2.1929, could not
affect the right of appeal from a decision on an
application made on 19.12.1928, for setting aside the E
sale. Mitter J. said at pp. 101-102:-
"We think the contention of the petitioner is well-
founded and must prevail. That a right of appeal is a
substantive right cannot now be seriously disputed. It F
is not a mere matter of procedure. Prior to the
amendment of 1928, there was an appeal against an
order refusing to set aside a sale (for that is the effect
also where the application to set aside the sale is
dismissed for default) under the provisions of 0. 43, G
R. (1). Civil PC. That right was unhampered by any
restriction of the kind now imposed by S. 174(5).
Proviso. The Court was bound to admit the appeal
whether appellant deposited the amount recoverable in
execution of the decree or not. By requiring such H
48 SUPREME COURT REPORTS [2015] 3 S.C.R.
A deposit as a condition precedent to the admission of
the appeal. a new restriction has been put on the right
of appeal. the admission of which is now hedged in with
a condition. There can be no doubt that the right of
appeal has· been affected by the new provision and in
B the absence of an express enactment this amendment
cannot apply' to proceedings pending at the date when
the new amendment came into force. It is true that the
appeal was filed after the Act came into force, but that
circumstance is immaterial - for the date to be looked
c into for this purpose is the date of the original
proceeding which eventually culminated in the appeal."
8. The above decisions quite firmly establish and our
decisions in Janardan Reddy v. The State, AIR 1951
D SC 124(0), and in Ganpat Rai v. Agarwal Chamber of
Commerce Ltd., AIR 1952 SC 409 {P), uphold the
principle that a right of appeal is not merely a matter
of procedure. It is matter of substantive right. This right
of appeal from the decision of an inferior tribunal to a
E superior trib,unal becomes vested in a party when
proceedings are first initiated in, and before a decision
is given by, the inferior court. In the language of Jenkins
C.J. in Nana v. Sheku (B) (supra) to disturb an existing
F . right of appeal is not a mere alteration in procedure.
Such a vested right cannot be taken away except by
express enactment or necessary intendment. An
intention to interfere with or, to impair or imperil such a
vested right cannot be presumed unless such intention
G be clearly manifested by express words or necessarv
implication.
9. Sri Ganapathy Aiyar urges that the language of S.
22(1) as .amended clearly makes the section
retrospective. The new proviso. it is pointed out. pre-
H
VIDEOCON INTERNATIONAL LTD. v. SEBI 49
[JAGDISH SINGH KHEHAR, J.]
emptorily requires the authority not to admit the appeal A
unless it be accompanied by a satisfactorv proof of the
payment of the tax in respect of which the appeal is
preferred and this duty the authority must discharge at
the time the appeal is actually preferred before him. The
argument is that after the amendment the authoritv has B
no option in fhe matter and he has no jurisdiction to
admit any appeal unless the assessed tax be
deposited. It follows. therefore. by necessary
implication. according to the learned Advocate. that the
amended provision applies to an appeal from an C
assessment order made before the date of amendment
as well as to an appeal from an order made after that
date. A similar argument was urged before the Calcutta
Special Bench in Sardar Ali v. Dolimuddin (E) (supra),
0
namely, that after the amendment the court had no
authority to entertain an appeal without a certificate
from the Single Judge. Rankin C.J., repelled this
argument with the remark at p. 643 :-
"Unless the contrary can be shown. the provision which E
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 F
the above observation as of the decisions in the other
cases referred to above is that the pre-existing right of
appeal is not destroyed by the amendment if the
amendment is not made retrospective by express
words or necessary intendment. The fact that the pre- G
existing right of appeal continues to exist must. in its
turn. necessarily imply that the old law which created
that right of appeal must also exist to support the
continuation of that right. As the old law continues to H
50 SUPREME COURT REPORTS [2015) 3 S.C.R.
A exist for the i;iuri;iose of sui;ii;iorting the i;ire-existing right
of a1212eal that old law must govern the exercise and
enforcement of that right of ai;ii;ieal and there can then
be no guestion of the amended i;irovision i;ireventing the
exercise of that right. The argument that the authoritll
B has no oi;ition or jurisdiction to admit the ai;ii;ieal unless
it be accomi;ianied bl£ the dei;iosit of the assessed tax
as reguired bl£ the amended i;iroviso to S. 22(1} of the
Act overlooks the fact of existence of the old law for
the i;iuri;iose· of sui;ii;iorting the i;ire-existing right and
c reallll amounts to begging the guestion. The new
i;iroviso is whollll inai;ii;ilicable in such a situation and
the jurisdiction of the authoritll has to be exercised
under the old law which so continues to exist. The
•
argument of Sri Gana12athll Iller on this i;ioint, therefore,
D
cannot be accei;ited."
(emphasis is ours)
23. Thereafter, reliance was placed by the learned
E counsel for the respondent on the decision rendered by this
Court in Daji Saheb v. Shankar Rao Vithalrao Mane, AIR
1956 SC 29. The factual matrix on the basis whereof the
controversy was adjudicated upon, is reflected in
paragraphs 2, 3 and 4. The same are extracted hereunder:
F
"2. The original decree was on 20-12-1946. The decree
of the High Court allowing the plaintiff's claim was on
8-11-1949. The defendants applied for leave to appeal
to the Federal Court on 6-1-1950. The High Court
G directed the trial court to find the value of the property
Which was the subject-matter of the suit at the time of
the suit and on the date of the passing of the decree
in appeal.
H On 22-1-1951 the lower court ascertained the value
VIDEOCON INTERNATIONAL LTD. v. SEBI 51
[JAGDISH SINGH KHEHAR, J.]
as stated above. The High Court thereafter granted A
leave to appeal on 1-10-1951, overruling the objections
raised by the plaintiff to the grant of such leave.
3. The maintainability of this appeal has been
questioned before us by Mr. Dadachanji, learned s
counsel for the respondents. in a somewhat lengthy
argument. His main contention was that Art. 133 of the
Constitution applies to the case, and as the value is
below Rs.20,000, no appeal can be entertained. It is
the correctness of this argument that we have to C
consider.
4. On the date of the decree of the High Court, the
defendants had a vested right of appeal to the Federal
Court. as the properties were of the requisite value, and o
on 6-1-1950 they sought a certificate of leave to appeal,
which was bound to be granted. The Constitution
establishing the Supreme Court as the final appellate
authority for India came into force on 26-1-1950. Did
the vested right become extinguished with the abolition E
of the Federal Court? If the court to which an appeal
lies is altogether abolished without any forum
substituted in its place for the disposal of pending
matters or for1he lodgment of appeals, the vested right
perishes no doubt. F
We have therefore to examine whether the
Constitution which brought the Supreme Court into
being makes any provision for an appeal from a
reversing decree of the High Court prior to the date of G
the Constitution respecting properties of the value of
Rs. 10.000 and more being entertained and heard by
the Supreme Court."
(emphasis is ours) H
52 SUPREME COURT REPORTS [2015] 3 S.C.R.
A The issue raised in paragraph 4, extracted hereinabove,
came to be answered by this Court in the following
manner:
"8. Though Art. 133 does not apply, we have still to see
B whether it is a matter as regards which jurisdiction and
powers were exercisable by the Federal Court
immediately before the commencement of the
Constitution. It is unnecessary to refer in detail to the
earlier enactments defining the jurisdiction of the Privy
C Council, and the Government of India Act, 1935
establishin!!) the Federal Court and conferring a limited
jurisdiction on the same.
It is sufficient to point out that as the law then stood.
D the Federal Court had jurisdiction to entertain and hear
appeals from a decree of a High Court which reversed
the lower court's decree as regards properties of the
value of more than Rs. 10.000. The aggrieved party had
a right to go before it, without any special leave being
E granted. It was a matter over which jurisdiction was
"exercisable" by the Federal Court.
The Construction that it was "exercisable" only if the
matter was actually pending before the Federal Court
F and that it could not be said to be pending until the
appeal is declared admitted under Order XLV of the
Civil Procedure Code is too narrow. and does not give
full and proper scope to the meaning of the word
"exercisable" in the Article. Pending matters are dealt
G 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
H an appeal from that decree became exercisable,
I
VIDEOCON INTERNATIONAL LTD. v. SEBI 53
[JAGDISH SINGH KHEHAR, J.]
provided certain conditions as to security and deposit A
were complied with, which are not material for our
present purpose.
9. Reference may be made here to paragraph 20 of
the Adaptation of Laws Order, 1950, as amended in B
1951, which provides:
"Nothing in this Order shall affect the previous operation
of, or anything duly done or suffered under, any existing
law, or any right, privilege, obligation or liability already C
acquired, accrued or incurred under any such law..... "
By this Order section 110. Civil PC was adapted to
the new situation but the requirement as to value was
raised from 10.000 to 20.000. What is provided is that
0
this adaptation will not affect the right of appeal already
accrued.
10. If we accede to the argument urged by the
respondents, we shall be shutting out altogether a large
number of appeals, where the parties had an automatic E
right to go before the Federal Court before the
Constitution and which we must hold was taken away
from them for no fault of their own. merely because the
Supreme Court came into existence in place of the F
Federal Court.
An interpretation or construction of the provisions of
the Constitution which would lead to such a result
should be avoided, unless inevitable. The Full Bench
decision of the Madras High Court in - Veeranna v. G G
China Venkanna, AIR 1953 Mad. 878 (A), was a case
where the decree of the High Court and the application
for leave to appeal were both after the Constitution
came into force.
H
54 SUPREME COURT REPORTS (2015] 3 S.C.R.
A Whether in all matters where there was a right of
appeal under section 110 of the Civil PC it continues
in respect o( all suits filed prior to the Constitution is a
question that does not arise for decision now."
B (emphasis is ours)
Based on the conclusions drawn by this Court, as have
been extracted above, learned counsel vehemently
contested the contention advanced on behalf of the
c appellant, that after the amendment of Section 15Z of the
SEBI Act, the right of second appeal had not been fully
preserved. In this behalf it was pointed out, that under the
unamended Section 15Z, the appellate right extended to
questions of law as well as fact, whereas, under the
o amended Sectton 15Z, the appellate right was limited to
questions of law alone. As such, it was submitted, that the
effect of the amendment under reference, could not be
described as a mere change of forum. According to learned
counsel for the respondent, the amendment affected the
E 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
F 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
G 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
H the above subject.
VIDEOCON INTERNATIONAL LTD. v. SEBI 55
[JAGDISH SINGH KHEHAR, J.]
25. First and foremost, we shall determine the veracity A
of the contention advanced at the hands of the learned
counsel for the appellant, that the remedy of second appeal
provided for in the u.namended Section 15Z of the SEBI Act
remained unaffected by the amendment of the said
provision; and on the basis of the above assumption, the B
learned counsel's submission, that the present controversy·
relates to an amendment which envisaged a mere change
of forum. Insofar as the instant aspect of the matter is
concerned, it would be pertinent to mention, that a right of
appeal can be availed of only when it is expressly conferred. C
When such a right is conferred, its parameters are also laid
down. A right of appeal may be absolute, i.e., without any
limitations. Or, it may be a limited right. The above position
is understandable, from a perusal of the unamended and
0
amended Section 15Z of the SEBI Act. Under the
unamended Section 15Z, the appellate remedy to the High
Court, against an order passed by the Securities Appellate
Tribunal, was circumscribed by the words " ... on any
question of fact or law arising out of such order.". The E
amended Section 15Z, while altering the appellate forum
from the High Court to the Supreme Court, curtailed and
restricted the scope of the appeal, against an order passed
by the Securities Appellate Tribunal, by expressing that the
remedy could be availed of "... on any question of law arising F
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 G
available in different packages. What falls within the
parameters of the package at the initial stage of the lis or
dispute, constitutes the vested substantive right, of the
concerned litigant. An aggrieved party, is entitled to pursue H
56 SUPREME COURT REPORTS [2015] 3 S.C.R.
A such a vested substantive right, as and when, an adverse
judgment or order is passed. Such a vested substantive
right can be taken away by an amendment, only when the
amended provision, expressly or by necessary intendment,
so provides. Failing which, such a vested substantive right
B 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
C 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"
D amendment stages, there could only be two eventualities.
Firstly, the pre-amendment appellate package, could have
been decreased by the amendment. Or alternatively, the
post-amendment package, could have been increased by
the amendment. In the former situation, all that was
E available earlier, is now not available. In other words, the
right of an individual to the appellate remedy, stands
reduced or curtailed. In the latte~ situation, the amendment
enhances the appellate package. The appellate remedy
F 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,
G because in the former position, the amendment. would
adversely affect the right, as was available earlier. In the
latter position, the amendment would not affect the right of
appeal, as was available earlier, because the earlier
package is still 'included in the amended package.
H 28. In the facts and circumstances of this case, it is
VIDEOCON INTERNATIONAL LTD. v. SEBI 57
[JAGDISH SINGH KHEHAR, J.]
apparent that Section 15Z of the SEBI Act prior to the A
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 B
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 C
the hands of the learned counsel for the appellant, that the
amendment to Section 15Z of the SEBI Act, envisages only
an amendment of the forum, where the second appeal
would lie. In our considered view, the amendment to Section
0
15Z of the SEBI Act, having reduced the appellate package,
adversely affected the appellate right vested of the
concerned litigant. The right of appeal being a vested right,
the appellate package, as was available at the
commencement of the proceedings, would continue to vest E
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 F
paragraph 12 hereinabove reveals, that the 'repeal and
saving' clause, neither expressly nor impliedly, so provides.
Thus viewed, we are constrained to conclude, that the
assertion advanced at the hands of the learned counsel for
the appellant, that the instant amendment to Section 15Z G
of the SEBI Act, does not affect the second appellate
remedy, but merely alters the forum where the second
appellate remedy would lie, is not acceptable.
29. Having concluded, that the remedy of second H
58 SUPREME COURT REPORTS [2015) 3 S.C.R.
A appeal vested in the respondent has not been preserved,
in the same format as it was available to the respondent,
at the time of initiation of the lis between the parties; and
also having concluded, that the scope of the appellate
remedy has been diminished by the amendment, we are
B 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
C conclusion, based on the judgments relied upon by the
learned counsel for the appellant, as also, by the learned
counsel for the respondent, it is inevitable to conclude, that
the appellate remedy available to the respondent prior to
the amendment of Section 15Z of the SEBI Act, must
0
continue to be available to the respondent, despite the
amendment. We accordingly hold, that all the appeals
preferred by the Board, befpre the High Court, were
maintainable in law.
E 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,
F nor the date of hearing thereof, is of any relevance. Legal
pursuit of a remedy, suit, appeal and second appeal, are
steps in a singular proceeding. All these steps are
deemingly connected by an intrinsic unity, which are treated
as one singular proceeding. Therefore, the relevant date
G 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
H order (which was assailed by the Board), well before
VIDEOtON INTERNATIONAL LTD. v. SEBI 59
[JAGDISH SINGH KHEHAR, J.)
29.10.2002. This singular fact itself, would lead to the A
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 B
unamended Section 15Z of the SEBI Act, constituted the
appellate package and the forum of appeal, for the part_ies
herein. It is, therefore, not possible for us to accept, the
contention advanced at the hands of the learned counsel
for the appellant, premised on the date of filing or hearing c
of the appeal, preferred by the Board, before the High Court.
We accordingly re!terate the position expressed above, that
all the appeals preferred by the Board, before the High
Court, were maintainable in law.
D
31. It was also the contention of the learned counsel
for the appellant, that in the absence of a saving clause,
the periding proceedings (and the jurisdiction of the High
Court), cannot be deemed to have been saved. It is not
possible for us to accept the instant contention. In the E
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, F
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 G
expressed in the above judgment (relevant extracts whereof
have been reproduced above), we are of the view, that the
instant contention advanced at the hands of the learned
counsel for the appellant is wholly misconceived.
Furthermore, the instant contention is wholly unacceptable H
60 SUPREME COURT REPORTS (2015) 3 S.C.R.
A in view of the mandate contained in Section 6(c) and (e) of
the General Clauses Act, 1897. While interpreting the
aforesaid provisions this Court has held, that the.
amendment of a statute, which is not retrospective in
operation, does not affect pending proceedings, except
B 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
C that date, and the mandate of Section 6 of the General
Clauses Act, simply ensures, that pending proceedings
under the unamended provision remain unaffected. Herein
also, therefore, our conclusion is the same as has already
been rendered by us, in the foregoing paragraphs.
0
32. Having conclude;d in the manner expressed in the
foregoing paragraphs, it is not necessary for us to examine
the main contention, advanced at the hands of the learned
counsel for the appellant, namely, that the amendment to
E Section 15Z of the SEBI Act, contemplates a mere change
of forum of the second appellate remedy. Despite the
aforesaid, we consider it just and appropriate, in the facts
and circumstances of the present case, to delve on the
F above subject as well. In dealing with the submission
advanced at the hands of the learned counsel for the
appellant, on the subject of forum, we will fictionally
presume, that the amendment to Section 15Z by the
Securities and Exchange Board of India (Amendment) Act,
G ,2002 had no effect on the second appellate remedy made
available to the parties, an.d further that, the above
amendment merely alters the forum of the second appeal,
from the High Court (under the unamended provision), to
the Supreme Court (consequent upon the amendment). On
H ·the above assumption, learned counsel for the appellant
VIDEOCON INTERNATIONAL LTD. v. SEBI 61
[JAGDISH SINGH KHEHAR, J.]
had placed reliance on, the decisions rendered by this Court A
in Maria Cristina De Souza Sodder, Hitendra Vishnu Thakur
and Thirumalai Chemicals Ltd. cases (supra) to contend,
that the law relating to forum being procedural in nature,
an amendment which altered the forum, would apply
retrospectively. Whilst the correctness of the aforesaid B
contention cannot be doubted, it is essential to clarify, that
the same is not an absolute rule. In this behalf, reference
may be made to the judgments r12lied upon by the learned
counsel for the respondent, and more importantly to the
judgment rendered in Commissioner of Income Tax, Orissa C
case (supra), wherein it has been explained, that an
amendment of forum would not necessarily be an issue of
procedure. It was concluded in the above judgment, that
where the question is of change of forum, it ceased to be D
a question of procedure, and becomes substantive and
vested, if proceedings stand initiated before the earlier
prescribed forum· (prior to the amendment having taken
effect). This Court qlearly declared in the above judgment,
that if the appellate remedy had been availed of (before the E
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 F
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 G
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 H
62 SUPREME COURT REPORTS [2015] 3 S.C.R.
A contours emerging out of Section 6 aforementioned, have
already been recorded by us, and need not be repeated.
34. For the reasons recorded hereinabove, we find n·o ·
merit in this appeal and the same is accordingly dismissed.
B It is, however, necessary for us to record,· that the impugned
a
order was passed with reference to number of appeals,
which were preferred by the Board, as against a common
order passed by the Securities Appellate Tribunal. In the
. impugned order, some of the appeals preferred by the
C Board were held as maintainable before the High Court,
whilst a different view was expressed with reference to the
appeals preferred by the Board after 29.10.2002. We have
concluded, that all appeals preferred by the respondent
herein, before the High Court, were maintainable. In
D exercise of our jurisdiction under Article 142 of the
Constitution of India, we direct, that the instant order passed
by us would govern all cases which were disposed of by
the High Court through the impugned order dated
13.10.2003.
E
35. Disposed of accordingly.
Kalpana K. Tripathy Appeal disposed of.
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