TMI Blog2003 (10) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... iled much prior to the coming into force of the amended section 15Z. SEBI Appeal Nos. 10 of 2002 and 1 of 2003, however, have been filed after the amendment was brought into force though the orders impugned in both the appeals were passed before the amendment. The question is whether an appeal would lie to the High Court after the commencement of the amended section 15Z. There is also an issue as to whether pending appeals which were filed under old section 15Z will not survive in view of the amending Act. 2. To appreciate the rival contentions of the parties with regard to the above issues it is necessary to refer to relevant provisions of the Act as they stood prior to the amendment to the SEBI Act by amending Act. The unamended section 15L lays down the composition of Securities Appellate Tribunal as follows : " Composition of Securities Appellate Tribunal. A Securities Appellate Tribunal shall consist of one person only (hereinafter referred to as the Presiding Officer of the Securities Appellate Tribunal) to be appointed, by notification by the Central Government". Section 15T which provided for appeal to the Securities Appellate Tribunal reads as follows : " Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he applicant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days". 3. By the amended section 15L the composition of Securities Appellate Tribunal is changed in that the Appellate Tribunal, which originally consisted of only one member, now consists of Presiding Officer and two other members, to be appointed by the Central Government. Section 15M lays down that a person shall not be qualified for appointment as the Presiding Officer of the Securities Appellate Tribunal unless he is sitting or retired Judge of the Supreme Court or a sitting or retired Chief Justice of a High Court. Section 15T remains practically unchanged and provides for an appeal to the Securities Appellate Tribunal against certain orders of the SEBI Board as mentioned in the said section. Under section 15Z an appeal is now provided to the Supreme Court which is to be filed within sixty days from the date of communication of the order of the Securities Appellate Tribunal on any question of law arising out of such order. Under the old section 15Z appeal would lie on facts or law arising out of such order whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in and before a decision is given by, the inferior Court. Such a vested right cannot be taken away except by express enactment or necessary intendment. The fact that the pre-existing right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the pre-existing right of appeal the old law must govern the exercise and enforcement of that right of appeal and there can be no question of the amended provision preventing the exercise of that right. Therefore the new provision is inapplicable and jurisdiction of the authority has to be exercised under the old law which so continues to exit. 5. In Garikapati Veeraya v. N. Subbiah Choudhary AIR 1957 SC 540 the following propositions were laid down : "( i )That the legal pursuit of a remedy, suit, appeal and second appeal are really but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 SC 540 and Colonial Sugar Refining Co. Ltd. v. Irving 1905 AC 369)." (p. 925) 7. Still later the Supreme Court in Gurbachan Singh v. Satpal Singh [1990] 1 SCC 445, Rajendra Kumar v. Kalyan [2000] 8 SCC 99, Ramesh Singh v. Cinta Devi [1996] 3 SCC 142 and I.T. Commer, Bangalore v. R. Sharadamma AIR 1996 SC 3199 expressed in the similar vein as regards the element of retrospectivity. In Rajendra Kumar s case ( supra ) the court, however, observed the rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect the vested right, it does not apply to statutes which alter the form of procedure or the admissibility of evidence, or the effect which the courts given to evidence, if the new Act affects matters of procedure, only, then, prima facie , it applies to all actions pending as well as future. 8. It is no doubt well settled that right of appeal is a substantive right and it gets vested in the litigant no sooner the lis is commenced in court of the first instance and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". (p. 1355) [Emphasis supplied] 9. In this context a reference may also be made to the observations of the Supreme Court in New India Insurance Co. Ltd. v. Smt. Shanti Misra [1975] 2 SCC 840. The question in that case was when there is change in the forum and new period of limitation is provided whether the change operates retrospectively. The court held that the change in law was merely a change of forum i.e. a change of adjectival or procedural law and not of substantive law. It is well established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right to action accrued prior to the change of forum. He will have vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise the general rule is to make it ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amending Act would not survive in view of the amendment to section 15Z. Mr. Sundaram submitted that if right to appeal to a particular forum is not a vested right and a new forum is prescribed by the statute without providing as to what would happen to the pending appeals filed under old section 15Z, it is clearly implied that all the pending appeals would come to an end. He submitted that there is nothing in the amending Act which would save pending appeals as under the said Act no saving has been provided. According to the learned counsel if the forum is within the realm of the procedure then section 6 will not be attracted and the pending appeals will also be affected. In support of this proposition Mr. Sundaram placed reliance on the decision of the Supreme Court in Arka Bikas Chakravorty v. State Bank of India [1997] 10 SCC 417 and Kolhapur Canesugar Works Ltd. v. Union of India AIR 2000 SC 811. We are unable to accept the submission of Mr. Sundaram. It is well settled that law which brings out a change in the Forum does not affect the pending actions unless the intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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