TMI Blog2015 (2) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, nor the date of hearing thereof, is of any relevance. Legal pursuit of a remedy, suit, appeal and second appeal, are steps in a singular proceeding. All these steps are deemingly connected by an intrinsic unity, which are treated as one singular proceeding. Therefore, the relevant date when the appellate remedy (including the second appellate remedy) becomes vested in the parties to the lis, is the date when the dispute/lis is initiated. Insofar as the present controversy is concerned, it is not a matter of dispute, that the Securities Appellate Tribunal had passed the impugned order (which was assailed by the Board), well before 29.10.2002. This singular fact itself, would lead to the conclusion, that the lis between the parties, out of which the second appellate remedy was availed of by the Board before the High Court, came to be initiated well before the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, 2002. Undisputedly, the unamended Section 15Z of the SEBI Act, constituted the appellate package and the forum of appeal, for the parties herein. It is, therefore, not possible for us to accept, the contention advanced at the hands o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jagdish Singh Khehar And M. Y. Eqbal,JJ. JUDGMENT Jagdish Singh Khehar, J. 1. The Securities and Exchange Board of India Act, 1992 (hereinafter referred to as, the SEBI Act) was enacted to protect the interests of investors in securities and to promote the development of, and to regulate, the securities market. The Securities and Exchange Board of India (hereinafter referred to as, the Board) was vested with statutory powers to effectively deal with all matters relating to the capital market. 2. The functions of the Board have been depicted in Section 11 of the SEBI Act. Under Section 11 of the SEBI Act, the powers of the Board include, the power to suspend the trading of any security in a recognized stockexchange; the power to restrain from accessing the securities market and prohibit any person associated with the securities market from buying, selling or dealing in securities; the power to suspend any office-bearer of any stock exchange or self-regulatory organization from holding such position; the power 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (Section 15HB, inserted with retrospective effect from 29.10.2002). Under Section 15-I of the SEBI Act, the Board is mandated to appoint an adjudicating officer (not below the rank of a Division Chief), for deciding the quantum of penalty to be imposed under Sections 15A to 15HB of the SEBI Act. 4. A remedy of appeal to the Securities Appellate Tribunal (established under Section 15K, by insertion of Chapter VIB into the SEBI Act, with retrospective effect from 25.1.1995) was provided for under Section 15T of the SEBI Act, to a person aggrieved of an order passed by the Board, or by an adjudicating officer (for details, refer to the preceding two paragraphs). A further remedy of appeal, was provided from an appellate order passed by the Securities Appellate Tribunal, vide Section 15Z (inserted with retrospective effect from 15.1.1995). Section 15Z of the SEBI Act (as has been referred to above), is being extracted hereunder:- 15Z. Appeal to High Court- Any person aggrieved by any decision or order of the Securities Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Securities Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Appellate Tribunal before 29.10.2002. Some appeals were preferred before 29.10.2002, and one of the appeals was preferred after 29.10.2002. The question which had arisen for adjudication before the High Court was, whether an appeal would lie to the High Court, after the amendment of Section 15Z of the SEBI Act. The Board which had preferred the appeals, asserted, that all the appeals were maintainable. The appellant before us, felt otherwise. 7. The High Court by the impugned order arrived at the conclusion, that such of the appeals as had been filed before the coming into force of the amended Section 15Z, would not be affected by the amendment, and the High Court had the jurisdiction to hear and dispose of the same. The High Court also concluded, that such of the appeals as had been filed after the coming into force of the amended Section 15Z, would not be maintainable. 8. The instant appeal has arisen with reference to the appeals which have been held as maintainable by the High Court. According to the learned counsel for the appellant, where the repealing Act provides for a new forum (as in the instant case), the original remedy (or legal proceedings) cannot be pursued a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer appointed under this Act or a Securities Appellate Tribunal constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. (emphasis is ours) On the basis of Section 15Y extracted above, it was the submission of the learned counsel for the appellant, that the powers of civil courts to entertain issues emerging out of the provisions of the SEBI Act were expressly taken away. Section 15Y, according to the learned counsel for the appellant, excluded even the jurisdiction of the High Court, with respect to the civil jurisdiction vested in the High Court, in respect of matters entrusted for adjudication, by the SEBI Act, with the adjudicating officer or with the Securities Appellate Tribunal. In fact, according to the learned counsel, the mandate of Section 15Y of the SEBI Act, debarred a civil court from even granting an injunction in respect of any action taken (or to be taken) in pursuance of any power conferred by or under the SEBI Act. It was the contention of the learned counsel, that Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of appeal was available from the Supreme Court of Queensland, to the King in Council. The aforesaid right was taken away by the Australian Commonwealth Judiciary Act, 1903 (hereinafter referred to as, the 1903 Act). Section 39(2) of the 1903 Act, provided for an appeal from the Supreme Court of Queensland, to the High Court of Australia. The question which arose for determination was, whether from a suit pending when the 1903 Act was enacted, a remedy of appeal would lie before the King in Council or before the High Court of Australia. In the judgment relied upon, the Privy Council held as under:- As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment. Accordingly, it was concluded, that the earlier provision which created the right of appeal, would continue to apply. The unamended provision was held, to govern the exercise and enforcement of the right of an appeal. It is thus concluded, that there could be no question of the amended provision divesting the aggrieved party of its right to appeal. 15. Eventually, the above proposition of law, according to learned counsel, came to be crystallized by the Constitution Bench judgment in Garikapati Veeraya v. N. Subbiah Choudhary, AIR 1957 SC 540, wherein this Court recorded its conclusions in paragraph 23, which is being extracted hereunder:- 23. From the decisions cited above the following principle clearly emerge : (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties there to till the rest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment (see Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, AIR 1927 PC 242. The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are two exceptions to the application of this rule, viz, (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect and (2) when the court to which appeal lay at the commencement of the suit stands abolished (see Garikapatti Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540, and Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369. 32. In the light of the above principles, these points arise for consideration: Are the provisions of the Portuguese Civil Code relating to reclamacao merely matters of procedure? Or, do they create or affect vested rights and remedies? That is to say, does a recl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise. On the other hand in the case of a suit it can be predicated that it would normally result in a decree entitling the aggrieved party to have the suit reheard and redecided in a higher forum by filing an appeal provided of course such a right is available under the law prevailing at the institution of the suit. 34. In the present case, the Judgment of the Additional Judicial Commissioner in which the alleged nullity or omission to adjudicate on the point of prescription occurs was delivered on January 20, 1968, that is, long after the extension of Articles 132, 133 and 134 of the Constitution, rules framed under Article 145 of the Constitution and Sections 109 and 116 of the Code of Civil Procedure to Goa, Daman and Diu. The procedural provisions of the Portuguese Code relating to reclamacao, and appeal from a decision on reclamacao, from the High Court in Goa, Daman and Diu stood repealed and superseded by the extended Indian laws when the Judgment now under appeal was rendered. On the instant proposition, learned counsel for the appellant last of all, placed reliance on Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24, wherein after relying on the conclusions drawn by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dural statute should not generally speaking be applied retrospective where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) a statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation unless otherwise provided, either expressly or by necessary implication. 27. In K.S. Paripoornan v. State of Kerala, (1994) 5 SCC 593, this Court while considering the effect of amendment in the Land Acquisition Act in pending proceedings held thus: 67. In the instant case we are concerned with the application of the provisions of sub-section (1-A) of Section 23 as introduced by the Amending Act to acquisition proceedings which were pending on the date of commencement of the Amending act. In relation to pending proceedings, the approach of the courts in England is that the same are unaffected by the changes in the law so far as they relate to the determination of the substantive rights and in the absence of a clear indication of a contrary intention in an amending enactment, the substantive rights of the parties to an acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit for pre-emption affirmed by the High Court in the second appeal. We are respectfully in agreement with the view expressed in the said decision and hold that the substituted Section 15 in the absence of anything in it to show that it is retrospective, does not effect the right of the parties which accrued to them on the date of suit or on the date of passing of the decree by the Court of first instance. We are also of the view that present appeals are unaffected by change in law insofar it related to determination of the substantive rights of the parties and the same are required to be decided in light of law of pre-emption as it existed on the date of passing of the decree. (emphasis is ours) 16. Learned counsel for the appellant, however pointed out, that the conclusions drawn by this Court, on the issue of prospectivity and retrospectivity, with reference to substantive rights and procedural provisions, fully support the appellants prayers in the instant appeal, for the simple reason, that the amendment to Section 15Z of the SEBI Act does not deprive the appellant, of the right to second appeal. In this behalf it was submitted, that the right of first appeal is bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal had been conferred by Portuguese Code, the forum where it could be lodged was also governed by the Portuguese Code cannot be accepted. It is no doubt well-settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of the first instance, and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy in respect thereof. This position has been made clear by Clauses (b) and (c) of the proviso to Section 4 of the Central Act XXX of 1965 which substantially correspond to Clauses (c) and (e) of Section 6 of the General Clauses Act, 1897. This position has also been settled by the decisions of the Privy Council and this Court (vide the Colonial Sugar Refining Company Ltd. v. Irving, 1905 AC 369 and Garikapatti Veeraya v. N. Subbiah Choudhury, (1957) 1 SCR 488, but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore, the appeal, the right to which has arisen under a repealed the Act, will have to be lodg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g investigation from one year to 180 days, the Amendment Act also introduced Clause (bb) to Sub-section (4) of Section 20 enabling the prosecution to seek extension of time for completion of the investigation. Does the Amendment Act No. 43 of 1993 have retrospective operation and does the amendment apply to the cases which were pending investigation on the date when the Amendment Act came into force? There may be cases where on 22.5.1993, the period of 180 days had already expired but the period of one year was not yet over. In such a case, the argument of learned Counsel for the appellant is that the Act operates retrospectively and applies to pending cases and therefore the accused should be forthwith released on bail if he is willing to be so released and is prepared to furnish the bail bonds as directed by the court, an argument which is seriously contested by the respondents. 26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Shahdeo v. State of Bihar, (1999) 8 SCC 16, and Shyam Sundar v. Ram Kumar, (2001) 8 SCC 24, has elaborately discussed the scope and ambit of an amending legislation and its retrospectivity and held that every litigant has a vested right in substantive law but no such right exists in procedural law. This Court has held that the law relating to forum and limitation is procedural in nature whereas law relating to right of appeal even though remedial is substantive in nature. 26. Therefore, unless the language used plainly manifests in express terms or by necessary implication a contrary intention a statute divesting vested rights is to be construed as prospective, a statute merely procedural is to be construed as retrospective and a statute which while procedural in its character, affects vested rights adversely is to be construed as prospective. (emphasis is ours) Based on the aforesaid determination of this Court, it was the contention of the learned counsel for the appellant, that the amendment of Section 15Z of the SEBI Act, whereby the appellate forum was changed from the High Court to the Supreme Court, would necessarily have to be treated as a procedural amendment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to April 1, 1971 required the Incometax Officer to refer the case to Inspecting Assistant Commissioner if the minimum penalty imposable exceeded Rs.l,000.00. The Inspecting Assistant Commissioner on a reference made by the Income-tax Officer got jurisdiction to impose penalty in such cases. The jurisdiction on Inspecting Assistant Commissioner was conferred by virtue of the reference. The reference was validly made by the Income-tax Officer before April 1, 1971. The question is did the amendment to Section 274 divest the Inspecting Assistant Commissioner of his validly acquired jurisdiction or the amendment ousted his jurisdiction merely because the amount of concealed income did not exceed ₹ 25,000.00 and the case did not satisfy the requirement of Section 274(2) as amended. 20. It will be noticed that the Amending Act did not make any provision that the references validly pending before the Inspecting Assisting Commissioner shall be returned without passing any final order if the amount of income in respect of which the particulars have been concealed did not exceed ₹ 25,000.00. This supports the inference that in pending references the Inspecting Assistant Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit having been lawfully made under Section 29 of the Act, its deletion by the Amending Act, did not affect its previous operation or anything duly done thereunder. Similarly, in Mohd. Idris v. Sat Narain, AIR 1966 SC 1499, the question was whether the Munsif who was trying a suit under the U.P. Agriculturists Relief Act ceased to have jurisdiction after the passing of the U.P. Zamindari Abolition and Land Reforms (Amendment) Act, 1953, which conferred jurisdiction on the Assistant Collector. This Court held that the jurisdiction of the Assistant Collector was itself created by the Abolition Act and as there was no provision in that Act that the pending cases, were to stand transferred to the Assistant Collector for disposal, the Munsif continued to have jurisdiction to try the suit. It was observed that the provisions for change-over of proceedings from one court to another are commonly found in a statute which takes away the jurisdiction of one court and confers it to the other in pending actions. 26. Surely the Amending Act does not show that the pending proceedings before the court on reference abate. 27. We are thus of the considered view that the advisory opinion giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. 25. The opening words of Section 6 specify the field over which it is operative. It is operative over all the enactments under the General Clauses Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a benefit granted and may be enforced by approaching the Controller in the manner prescribed under the statute. On filing the petition of eviction of the tenant the privilege accrued with the landlord is not effected by repeal of the Act in view of section 6(c) and the pending proceeding is saved under Section 6(e) of the Act. xxx xxx xxx xxx 34. Thus we find Section 6 of the General Clauses Act covers a wider filed and saves a wide range or proceedings referred to in its various sub-clauses. We find two sets of cases, one where Section 6 of the General Clauses Act is applicable and the other where it is not applicable. 35. In cases where Section 6 is not applicable, the courts have to scrutinise and find, whether a person under a repealed statute had any vested right. In case he had, then pending proceedings would be saved. However, in cases where Section 6 is applicable, it is not merely a vested right but all those covered under various sub-clauses from (a) to (e) of Section 6. We have already clarified right and privileges under it is limited to those which is 'acquired' and 'accrued'. In such cases pending proceedings is to be continued as if the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings were initiated (i.e., before the amendment to the proviso to Section 22(1) aforementioned). The Board of Revenue took the view, that the order of assessment was made after the amendment to the aforesaid provision, and accordingly, the appeal would be governed by the amended provision. It was also concluded, that the law as it existed before the filing of the appeal, would not apply to the case. The aforesaid determination was assailed by the appellant, before the High Court of Madhya Pradesh, which dismissed the contention of the appellant. It is therefore that the appellant approached this Court. On the subject referred to hereinabove, this Court observed as under: 4. The principle of the above decision was applied by Jenkins C.J. in Nana v. Sheku, 32 Bom. 337(B), and by the Privy Council itself in Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi, AIR 1927 PC 242 (C). A Full Bench of the Lahore High Court adopted it in Kirpa Singh v. Rasalldar Ajaipal Singh, AIR 1928 Lah. 627 (FB) (D). It was there regarded as settled that the right of appeal was not a mere matter of procedure but was vested right which inhered in a party from the commencement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause could not be given retrospective effect and accordingly the date of presentation of the second appeal to the High Court was not the date which determined the applicability of the amended clause of the Letters Patent and that the date of the institution of the suit was the determining factor. xxx xxx xxx 7. The case of Nagendra Nath v. Man Mohan Singha, AIR 1931 Cal. 100 (N), is indeed very much to the point. In that case the plaintiffs instituted a suit for rent valued at ₹ 1,306/15 and obtained a decree. In execution of that decree the defaulting tenure was sold on 20.11.1928, for ₹ 1,600. On 19.12.1928, an application was made, under O. XXI, R. 90, Civil PC, by the present petitioner, who was one of the judgmentdebtors, for setting aside the sale. That application having been dismissed for default of his appearance the petitioner preferred an appeal to the District Judge of Hoogly who refused to admit the appeal on the ground that the amount recoverable in execution of the decree had not been deposited as required by the proviso to S. 174, Cl. (c), of the Bengal Tenancy Act as amended by an amending Act in 1928. The contention of the petitioner was that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on be clearly manifested by express words or necessary implication. 9. Sri Ganapathy Aiyar urges that the language of S. 22(1) as amended clearly makes the section retrospective. The new proviso, it is pointed out, pre-emptorily requires the authority not to admit the appeal unless it be accompanied by a satisfactory proof of the payment of the tax in respect of which the appeal is preferred and this duty the authority must discharge at the time the appeal is actually preferred before him. The argument is that after the amendment the authority has no option in the matter and he has no jurisdiction to admit any appeal unless the assessed tax be deposited. It follows, therefore, by necessary implication, according to the learned Advocate, that the amended provision applies to an appeal from an assessment order made before the date of amendment as well as to an appeal from an order made after that date. A similar argument was urged before the Calcutta Special Bench in Sardar Ali v. Dolimuddin (E) (supra), namely, that after the amendment the court had no authority to entertain an appeal without a certificate from the Single Judge. Rankin C.J., repelled this argument with the remark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated above. The High Court thereafter granted leave to appeal on 1-10- 1951, overruling the objections raised by the plaintiff to the grant of such leave. 3. The maintainability of this appeal has been questioned before us by Mr. Dadachanji, learned counsel for the respondents, in a somewhat lengthy argument. His main contention was that Art. 133 of the Constitution applies to the case, and as the value is below ₹ 20,000, no appeal can be entertained. It is the correctness of this argument that we have to consider. 4. On the date of the decree of the High Court, the defendants had a vested right of appeal to the Federal Court, as the properties were of the requisite value, and on 6-1-1950 they sought a certificate of leave to appeal, which was bound to be granted. The Constitution establishing the Supreme Court as the final appellate authority for India came into force on 26-1-1950. Did the vested right become extinguished with the abolition of the Federal Court? If the court to which an appeal lies is altogether abolished without any forum substituted in its place for the disposal of pending matters or for the lodgment of appeals, the vested right perishes no doubt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquired, accrued or incurred under any such law..... By this Order section 110 , Civil PC was adapted to the new situation but the requirement as to value was raised from 10,000 to 20,000. What is provided is that this adaptation will not affect the right of appeal already accrued. 10. If we accede to the argument urged by the respondents, we shal l be shutting out altogether a large number of appeals, where the parties had an automatic right to go before the Federal Court before the Constitution and which we must hold was taken away from them for no fault of their own, merely because the Supreme Court came into existence in place of the Federal Court. An interpretation or construction of the provisions of the Constitution which would lead to such a result should be avoided, unless inevitable. The Full Bench decision of the Madras High Court in - Veeranna v. G. China Venkanna, AIR 1953 Mad. 878 (A), was a case where the decree of the High Court and the application for leave to appeal were both after the Constitution came into force. Whether in all matters where there was a right of appeal under section 110 of the Civil PC it continues in respect of all suits filed pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited right. The above position is understandable, from a perusal of the unamended and amended Section 15Z of the SEBI Act. Under the unamended Section 15Z, the appellate remedy to the High Court, against an order passed by the Securities Appellate Tribunal, was circumscribed by the words on any question of fact or law arising out of such order. . The amended Section 15Z, while altering the appellate forum from the High Court to the Supreme Court, curtailed and restricted the scope of the appeal, against an order passed by the Securities Appellate Tribunal, by expressing that the remedy could be availed of on any question of law arising out of such order. . It is, therefore apparent, that the right to appeal, is available in different packages, and that, the amendment to Section 15Z, varied the scope of the second appeal provided under the SEBI Act. 26. As illustrated above, an appellate remedy is available in different packages. What falls within the parameters of the package at the initial stage of the lis or dispute, constitutes the vested substantive right, of the concerned litigant. An aggrieved party, is entitled to pursue such a vested substantive right, as and when, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That being the position, it is not possible for us to accept the contention advanced at the hands of the learned counsel for the appellant, that the amendment to Section 15Z of the SEBI Act, envisages only an amendment of the forum, where the second appeal would lie. In our considered view, the amendment to Section 15Z of the SEBI Act, having reduced the appellate package, adversely affected the appellate right vested of the concerned litigant. The right of appeal being a vested right, the appellate package, as was available at the commencement of the proceedings, would continue to vest in the parties engaged in a lis, till the eventual culmination of the proceedings. Obviously, that would be subject to an amendment expressly or impliedly, providing to the contrary. Section 32 of the Securities and Exchange Board of India (Amendment) Act, 2002, which has been extracted in paragraph 12 hereinabove reveals, that the repeal and saving clause, neither expressly nor impliedly, so provides. Thus viewed, we are constrained to conclude, that the assertion advanced at the hands of the learned counsel for the appellant, that the instant amendment to Section 15Z of the SEBI Act, does not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputedly, the unamended Section 15Z of the SEBI Act, constituted the appellate package and the forum of appeal, for the parties herein. It is, therefore, not possible for us to accept, the contention advanced at the hands of the learned counsel for the appellant, premised on the date of filing or hearing of the appeal, preferred by the Board, before the High Court. We accordingly reiterate the position expressed above, that all the appeals preferred by the Board, before the High Court, were maintainable in law. 31. It was also the contention of the learned counsel for the appellant, that in the absence of a saving clause, the pending proceedings (and the jurisdiction of the High Court), cannot be deemed to have been saved. It is not possible for us to accept the instant contention. In the judgment rendered by this Court in Ambalal Sarabhai Enterprises Limited case (supra), it was held, that the general principle was, that a law which brought about a change in the forum, would not affect pending actions, unless the intention to the contrary was clearly shown. Since the amending provision herein, does not so envisage, it has to be concluded, that the pending appeals (before the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hakur and Thirumalai Chemicals Ltd. cases (supra) to contend, that the law relating to forum being procedural in nature, an amendment which altered the forum, would apply retrospectively. Whilst the correctness of the aforesaid contention cannot be doubted, it is essential to clarify, that the same is not an absolute rule. In this behalf, reference may be made to the judgments relied upon by the learned counsel for the respondent, and more importantly to the judgment rendered in Commissioner of Income Tax, Orissa case (supra), wherein it has been explained, that an amendment of forum would not necessarily be an issue of procedure. It was concluded in the above judgment, that where the question is of change of forum, it ceased to be a question of procedure, and becomes substantive and vested, if proceedings stand initiated before the earlier prescribed forum (prior to the amendment having taken effect). This Court clearly declared in the above judgment, that if the appellate remedy had been availed of (before the forum expressed in the unamended provision) before the amendment, the same would constitute a vested right. However, if the same has not been availed of, and the forum of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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