Gujarat High Court
Khurshid Cyrus Medhora vs Cyrus Ratanshaw Medhora on 29 May, 2020
Author: G.R.Udhwani
Bench: G.R.Udhwani, V.P. Patel
C/FA/5/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
and
HONOURABLE MR.JUSTICE V.P. PATEL
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1 Whether Reporters of Local Papers may be allowed to see the YES
judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as to the NO
interpretation of the Constitution of India or any order made
thereunder ?
==========================================================
KHURSHID CYRUS MEDHORA
Versus
CYRUS RATANSHAW MEDHORA & 1 other(s)
==========================================================
Appearance:
MR DHAVAL D VYAS(3225) for the Appellant(s) No. 1
MR JAL SOLI UNWALA SENIOR ADVOCATE WITH MS TEJAL A
VASHI(2704) for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR.JUSTICE G.R.UDHWANI
and
HONOURABLE MR.JUSTICE V.P. PATEL
Date : 29/05/2020
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE G.R.UDHWANI)
1. The question in this reference relates to Notification no. C.0202/92 dated 14.10.2014. By the said notification, inter alia, pecuniary appellate Page 1 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT jurisdiction of the High Court and District Court has been revised upwards. On the effective date of the notification (supra) several appeals were pending consideration in the unamended pecuniary appellate jurisdiction; one of such appeal was Gopalsinh Natvarsinh Vasadiya & 4 vs. P.S.I &7- First Appeal No. 835 of 2014. When it came up for consideration before bench of learned Single Judge an issue of transfer of appeal pending in the High Court came to be raised principally relying upon section 30 of the Gujarat Civil Courts Act, 2005 as also Amitbhai Hirabhai Vadodariya vs. Pinalben Prafulbhai Mehta - (2014) 2 GLR 1541, Kiritbhai Melabhai Tadvi vs. Narmada Shankar Premjibhai Dave- 2008(1) GLR 75. On the other hand reliance was placed upon Khurshid Cyrus Medhora vs. Cyrus Ratanshaw Medhora- First Appeal No. 5 of 2013 for maintaining the appeal in the unamended pecuniary jurisdiction. Case of Amitbhai Hirabhai Vadodariya as also Rameshchandra (both supra) persuaded the learned Single Judge hearing Gopalsinh Natvarsinh Vasadiya (supra) to hold that the pending appeal in the High Court in its unamended pecuniary jurisdiction should be transferred to the District Court. Subsequently the case of Khurshid Cyrus Medhora vs. Cyrus Ratanshaw Medhora- First Appeal No. 5 of 2013 came to be listed with the same learned Single Judge on 19.01.2017 wherein following order has been passed; as which has entailed into this reference under consideration:
"The present First Appeal has been filed by the appellant being aggrieved with the judgment and order rendered in Special Civil Suit No. 3/96 by the Civil Judge (S.D.), Navsari dated 31.8.2012. However, when the matter is called out, learned advocate Shri Dhaval Vyas as well as learned advocate Shri Unwala has drawn the attention with regard to the maintainability of the appeal before this court in light of the amendment in Gujarat Civil Courts Act, 2005 with effect from 9.5.2005.
Learned advocate Shri Unwala referred to the order of the coordi- nate Bench (Coram: Paresh Upadhyay, J.) dated 17.6.2015 in this very mater by which the view has been taken that the present appeal would not stand transferred or is not liable to be transferred and sent back to the District Court. However, this court has on examination of the issue Page 2 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT in another case being First Appeal No. 835 of 2014 with Civil Applica- tion No. 3242 of 2014, referring to the provisions of sec. 30(3) of the Gujarat Civil Courts Act, 2005 r/w Gujarat High Court Rules, 1993 has taken a different view. Moreover, another co-ordinate Bench in 2014 has taken a different view than the view taken by Justice Upadh- yay. There is another judgment in First Appeal No. 983 of 2005 by Jus- tice A.L. Dave (as he then was).
In these circumstances it is desirable that this matter may be placed before the Hon'ble Chief Justice for appropriate orders."
1.1 As is evident from the order (supra) in Gopalsinh, the order by an- other learned Single Judge in Khurshid Cyrus(supra) preceded Gopalsinh already expressing the view thus:
"10. For the reasons recorded above, it is held that :-
10.1 The Appeals, which were pending before this Court at the time of issuance of the Notification by the High Court of Gujarat dated 14.10.2014, enhancing the pecuniary jurisdiction of the Courts below with effect from 01.11.2014, can not be transferred to the concerned District Court on the ground that, now it is the concerned District Court which would be competent to consider such Appeals, in view of the enhanced pecuniary jurisdiction. Those Appeals therefore need to be considered by this Court.
10.2 If the date of the judgment / decree appealed against is prior to the effective date of the said Notification i.e. upto 31.10.2014, such appeals need to be considered by the High Court only, if it was otherwise required to be filed before this Court, but for the said Notification dated 14.10.2014. In other words, it is the date of the judgment / decree appealed against, which is relevant factor to decide which is the competent Court to consider the appeal. For that purpose, it is immaterial whether on the effective date, the said appeal is pending before this Court. Still further, for that purpose, it is immaterial whether it is even filed before this Court on or before 31.10.2014. The net effect thereof is that, if the Appeal, which was not even filed on the date of issuance of the said Notification i.e. 14.10.2014 or prior to the effective date of the said Notification i.e. 01.11.2014 i.e. upto 31.10.2014, is required to be considered by this Court, if the said appeal was otherwise required to be filed before this Court but for the Notification dated 14.10.2014."
1.2 It appears that while the two conflicting views in Khurshid Cyrus Medhora vs. Cyrus Ratanshaw Medhora and Gopalsinh Natvarsinh Vasadiya & 4 vs. P.S.I & 7 constituted the record of the High Court, the reference came to be made as above when Khurshid Cyrus was again listed with the learned Single Judge who had expressed the contrary view to Khurshid Cyrus in Gopalsinh.
Page 3 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT1.3 As is evident from the order, conflicting views have been expressed in First Appeal No. 835 of 2014 -Gopalsinh Natvarsinh Vasadiya & 4 vs. P.S.I & 7 and First Appeal No. 5 of 2013- Khurshid Cyrus Medhora vs. Cyrus Ratanshaw Medhora ; the former holding that by the reason of enhancement of pecuniary jurisdiction, the appeal pending in the una- mended pecuniary jurisdiction would be incompetent and later holding that such notification issued by the High Court in exercise of the powers under Article 225 of the Constitution of India and Sections 14, 14A and 15(2)(a) of the Gujarat Civil Courts Act, 2005 does not operate retrospectively and would not sweep in its fold the pending appeals in the unamended pecuni- ary jurisdiction. Simply put the later case pronounces in favour of main- tainability of the pending appeals in the unamended pecuniary jurisdiction whereas the former takes the contrary view. Thus this Court is required to pronounce upon the correctness of one amongst the two conflicting views.
1.4 In the order dated 17.06.2015 in Khurshid Cyrus (supra) the rel- evant legal provisions were reproduced thus:
4. Before the above arguments are considered, the relevant provisions need to be kept in view, which are as under.
4.1 The Notification in question dated 14.10.2014 issued by the High Court reads as under
"NOTIFICATION NO.C.0202/92 DATED 14.10.2014 In exercise of powers conferred by Article 225 of the Constitution of India and Sections 14, 14A and 15(2)(a) of 'The Gujarat Civil Courts Act, 2005', the High Court of Gujarat, hereby enhance the pecuniary jurisdiction of the Courts established under 'The Gujarat Civil Courts Act, 2005' with effect from November 01, 2014, as under
1. Jurisdiction of a Court of Civil Judge:- The jurisdiction of a Court of Civil Judge shall extend to all original suits and proceedings of a civil nature, not otherwise excluded from the jurisdiction of a Court of Civil Judge by any other law, the value of the subject matter of which does not exceed five lakhs rupees. [See Section 14 of the Gujarat Civil Courts Act, 2005].
2. Appeals:- Appeal from the decree and orders passed by a Court of Senior Page 4 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT Civil Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie to the Court of the District Judge of the district when the amount or value of the subject matter of the original suit or proceedings is less than ten lakhs of rupees. [See Section 15(2)(a) of the Gujarat Civil Courts Act, 2005]
3. Power to invest Senior Civil Judges with jurisdiction under certain Acts-
Every order made by a Senior Civil Judge by virtue of the powers conferred upon him under subsection (1) shall be subject to an appeal to the High Court where the amount or value of the subject matter exceeds rupees ten lakhs or to the Court of District Judge where the amount or value of the subject matter does not exceed rupees ten lakhs. [See Section 24(2) of the Gujarat Civil Courts Act, 2005].
" 4.2 Section 30 of the Gujarat Civil Courts Act, 2005 reads as under.
"30. (1) On and from the appointed date the Bombay Civil Courts Act, 1869, in its application to the State of Gujarat, shall stand repealed. (2) Such repeal shall not affect the previous operation of the enactment so repealed and any thing done or any action taken including the districts formed, limits defined, courts established or constituted, appointments, rules or orders made, functions assigned, powers granted, seals or forms prescribed, jurisdiction defined or vested and notifications or notices issued by or under the provisions of the said Act and deemed to have been done or taken under the provisions thereof shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act and shall continue in force unless and until superseded by anything done or any action taken under this Act (3) Notwithstanding anything contained in sub-section(1) or any other provisions of this Act or in the enactment repealed by subsection(1) or in any other law or provision having the force of law, all suits, appeals and proceedings connected therewith, pending before any court, which under this Act have to be instituted or commenced in another court, shall, on the appointed day, stand transferred to such other court and shall be continued and disposed of by such other court in accordance with law as if such suit and proceedings had been instituted or commenced in such other court under this Act.
(4) If there be any doubt as to which court any suit, appeal or proceedings shall stand transferred or as to which court any appeal shall be preferred in accordance with the Page 7 of 29 Downloaded on : Sat May 16 16:48:05 IST 2020 C/FA/5/2013 JUDGMENT provisions of this Act the court designed by the High Court shall be the court to which such suit, appeal or proceedings shall be transferred or such appeal shall be preferred, and the decision of the High Court shall be final.
Notwithstanding such repeal, the provisions of section 7 of the Bombay General Clauses Act, 1904 shall apply in relation to the repeal of the Bombay Civil Courts Act, 1869 as if the Act had been an enactment within the meaning of the said Section 7."
4.3 Section 2(a) and 1(3) of the Gujarat Civil Courts Act, 2005 read as under.
Page 5 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT. "2(a) "appointed date" means the date appointed under sub-section (3) of section 1" "1(3) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint."
It is noted that, the date of such Notification is 23.03.2005.
4.4 Section 14 and 15 of the Gujarat Civil Courts Act, 2005, as they originally stood (prior to the Gujarat Civil Courts (Amendment) Act, 2014), read as under.
"14. The jurisdiction of a Court of Civil Judge shall extend to all original suits and proceedings of a civil nature, not otherwise excluded from the jurisdiction of a Court of Civil Judge by any other law, the value of the subject matter of which does not exceed two lakh rupees or such other sum as the High Court may, from time to time specify.
15. (1) Appeals from the decrees and orders passed by a Court of District Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie to the High Court.
(2) Appeals from the decrees and orders passed by a Court of Senior Civil Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie -
(a) to the Court of the District Judge of the district when the amount or value of the subject matter of the original suit or proceedings is less than five lakhs of rupees or such other sum as the High Court may, from time to time, specify;
(b) to the High Court in other cases.
(3) Appeals from the decrees and orders passed by a Court of Civil Judge in suits or proceedings of a civil nature, shall, when such appeals are allowed by law, lie to the Court of District Judge of the district :
Provided that the High Court may, in consultation with the State Government, by notification, direct that such appeals against decrees and orders may lie to the Court of Senior Civil Judge when the amount or value of the subject matter of the suit or proceeding is less than one lakh of rupees and thereupon appeals shall be preferred accordingly.
(4) The provisions of this section will apply to all decrees and orders made after the appointed date irrespective of the fact whether the suits or proceedings in which they are made were instituted before or after the appointed date."
4.5 By the Notification dated 28.07.2014, the Gujarat Civil Courts (Amendment) Act, 2014 is published, which reads as under.
"1. This Act may be called the Gujarat Civil Courts (Amendment) Act, 2014.
2. In the Gujarat Civil Courts Act, 2005 (hereinafter referred to as "the principal Act"), in section 14, for the words "or such other sum as the High Court may, from time to time specify", the words "or such other sum as the High Court may, by notification, from time to time specify" shall be Page 6 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT substituted.
3. In the principal Act, after section 14, the following section shall be inserted, namely :-
"14A. All suits and proceedings of a civil nature wherein the subject matter exceeds in amount or value of two lakhs rupees but does not exceed the value or amount as may be specified by the High Court, by notification, from time to time under section 14, pending in a Court of Senior Civil Judge shall, after such specification by notification, stand transferred to and be disposed of by a Civil Judge within the local limits of his ordinary jurisdiction."
4. In the principal Act, in section 15, in sub-section (2), in clause (a), for the words "or such other sum as the High Court may, from time to time specify", the words "or such other sum as the High Court may, by notification, from time to time specify" shall be substituted."
4.6 Section 7 and 7A of the Bombay General Clauses Act, 1904, as applicable to the State of Gujarat, read as under.
"7. Where this Act, or any Bombay Act [or Gujarat Act] made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, than, 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 had not been passed.
7A. Where any Bombay Act [or Gujarat Act] made after the commencement of this Act repeals any enactment by which the text of any previous enactment was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal."
4.7 Section 96 (1) of the Code of Civil Procedure, 1908 reads as under. "
Appeal from original decree :- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court."
1.5 It can be inter alia noticed that the appellate jurisdiction of the High Court was based at the sum exceeding Rupees 10 lakhs; that of the District Court was capped at less than 10 lakhs of Rupees by Page 7 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT notification (supra). The notification is made effective from 01.11.2014 and thus needless to say that the fresh institutions would be in compliance with the enhanced pecuniary jurisdiction as provided in the notification. The notification is silent about the fate of appeals pending in the unamended pecuniary appellate jurisdictions. The question as to effect of the said notification (on the pending appeals) first cropped up in Khurshid (supra) with the following arguments:
"3.1 The first line of argument is that, all the Appeals pending before this Court on the effective date of the Notification i.e. 01.11.2014 should be transferred to the concerned District Court, if as per the enhanced pecuniary jurisdiction, the concerned District Court is competent to consider the said Appeals. Registry has also put note on this line, for appropriate order.
3.2 The second line of argument is that, those Appeals, which are filed on and after 01.11.2014, for which, as per the enhanced pecuniary jurisdiction, the concerned District Court is competent, should not have been registered by this Court and if that is so done, those Appeals are required to be transferred to the concerned District Court. It is submitted that, on and from 01.11.2014, it is the District Court which would be the competent Court to hear Appeal from the decree passed by the Court of Senior Civil Judge in original suits and proceedings of civil nature, when the amount or value of the subject matter of the original suit or proceedings is less than ten lakhs of rupees. It is submitted that there can not be more than one competent Court for any statutory Appeal and for this reason, even those Appeals, which are registered by this Court on and after 01.11.2014 need to be transferred to the Court below.
3.3 The third line of argument is that, it is the date of the institution of the suit / proceedings, in which the judgment appealed against is passed, which is relevant. It is submitted that, therefore, the Court which was competent to hear the Appeal against such judgment on the date of the institution of the said proceeding, should be treated to be the competent Court.
3.4 The fourth line of argument is that, it is the date of the judgment / decree appealed against, which is relevant and therefore, whether the Appeal was pending on the effective date of the Notification i.e. 01.11.2014, or even the Appeal was filed on or before the said date is irrelevant to decide, as to it is which Court which is competent to hear the Appeal against such judgment / decree"
2. After elaborately addressing the issues, the issues were answered thus:
Page 8 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT"6.2 The Notification in question is dated 14.10.2014. By specific provision, it is made effective from 01.11.2014. Even in absence of any such stipulation, the same could not have been read to have retrospective effect, in absence of any provision in that regard. The effect of transferring the pending appeals from this Court to the District Court (when the amount or value or the subject matter or the original suit or proceeding is less than ten lakhs of rupees) would be that, though the pecuniary jurisdiction of the Court below is enhanced with effect from 01.11.2014, it is put in effect retrospectively. It would also lead to taking aid of Section 30 of the Gujarat Civil Courts Act, 2005, without there being any amendment in the 'appointed date' as defined under Section 2(a) read with Section 1(3) of the said Act. Thus, accepting this line of argument would cause violence to the effective date prescribed in the Notification itself, so also to the Section 1(3) of the Gujarat Civil Courts Act, 2005.
6.3 This would also be violative of Section 7 and 7A of the Bombay General Clauses Act, 1904 as applicable to the State of Gujarat. As per the said provisions, when any Act is repealed or the text of any previous enactment is amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the pending proceedings.
6.4 There is an additional factor not to do so. The Gujarat Civil Courts Act, 2005 is amended by 2014 Amendment Act. In the said amending Act, after Section 14 which pertains to suits, Section 14A is inserted. The effect thereof is that, in view of enhancement in pecuniary jurisdiction, the suits which were pending in the Court of Senior Civil Judges stood transferred to the Court of Civil Judges. Section 15 pertains to Appeals. There is no insertion of Section 15A as like Section 14A. Thus, the intention of the legislature is quite clear qua pending suits, so also qua pending Appeals. The acceptance of this line of argument would in substance be enacting provision like Section 14A in the form of Section 15A which is consciously not done by the legislature."
2.1 The reliance was placed inter alia upon Himachal Pradesh State Electricity Regulatory Commission vs. Himachal Pradesh State Electricity Board - (2014) 5 SCC 219; more particularly para 25 and 26 which are reproduced hereunder:
"25."At this stage, we may state with profit that it is a well settled proposition of law that enactments dealing with substantive rights are primarily prospective unless it is expressly or by necessary intention or implication given retrospectivity. The aforesaid principle has full play when vested rights are affected. In the absence of any unequivocal expose, the piece of Legislation must exposit adequate intendment of Legislature to make the provision retrospective. As has been stated in various authorities referred to hereinabove, a right of appeal as well as forum is a vested right unless the said right is taken away by the Legislature by an express provision in the Statute by necessary intention.Page 9 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT
26. Mr. Gupta has endeavoured hard to highlight on Section 111 of the 2003 Act to sustain the stand that there is an intention for change of forum. It is the admitted position that Legis- lature by expressed stipulation in the new legislation has not provided for transfer of the pend- ing cases as was done by the Parliament in respect of service matters and suits by financial institutions/banks by enactment of Administrative Tribunal Act, 1985 and Recovery of Debts due to Banks and Financial Institution Act, 1993. No doubt right to appeal can be divested but this requires either a direct legislative mandate or sufficient proof or reason to show and hold that the said right to appeal stands withdrawn and the pending proceedings stand trans- ferred to different or new appellate forum. Creation of a different or a new appellate forum by itself is not sufficient to accept the argument/contention of an implied transfer. Something more substantial or affirmative is required which is not perceptible from the scheme of the 2003 Act."
2.2 In the light of Nanduben Jivanavala vs. State of Gujarat -2005 (2) GLH (U.J.) 16 (First Appeal 1125 of 2002 decided on 06.07.2005) and Rameshchandra Gaurishankar Gupta vs. Mahesh Gaurishankar Gupta - 2005 JX ( Gujarat) 437 ( First Appeal 983 of 2005 decided on 25.07.2005), it was held in Khurshid Cyrus (supra) that section 30 of the Act was already given effect to in the context of appointed day as defined in 2005 Act and cannot be given again while giving effect to the notification dated 14.10.2014 in absence of the definition of appointed day in reference to 2014 notification.
3. Before proceeding to address the core issue, this court deems it appropriate to note certain inaccuracies found in Gopalsinh Natvarsinh Vasadiya(supra): The pronouncement in case of Amitbhai Hirabhai Vadodariya and Kiritbhai Melabhai Tadvi (both supra) are the pronouncements by the learned Single Judges; but have been inaccurately referred to as the pronouncement by the Division Bench. That apart the cases were cited in the context of section 30(3) of the Gujarat Civil Courts Act, 2005; the cases have addressed pure question of jurisdiction sans the question of revision of pecuniary jurisdiction. Therefore, as would be clear from the following discussion, the said decisions could not have been the basis for the transfer of the Page 10 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT case to the District Court.
3.1 Although the case of Rameshchandra (supra) directs the transfer of the matter to competent pecuniary jurisdiction on the strength of new law i.e. Gujarat Civil Courts Act, 2005 contemplating the revised pecuniary limits, the correctness of the direction is required to be examined on the strength of case law cited and the appropriate legal provisions relied upon in this case.
4. Having said that, this court would now proceed to consider the legal position on the question arising in this reference.
4.1 Although several judicial pronouncements have been relied upon, it would be apt to consider few of them in addition to those already referred to hereinabove, to avoid the unnecessary repetition. This court thus would consider following pronouncements before delving upon the issue under consideration in the facts of the present case.
[1] 2004 (5) ALT 755 -Vallabhaneni Lakshmana Swamy vs. Valluru Basavaiah In this case the question similar to the one involved in the present case was addressed and answered after considering series of judicial pronouncements and following illustrative principles were culled out and collated in para (62) thus:
"62. From the aforesaid case law and the statements made by various Law Lords, the following principles (illustrative not exhaustive) would emerge:
1. Every legislation is a prima fade prospective unless it is expressly or by necessary implication made to have retrospective effect on the principle of "Nova comtitutio futuris formam imponere debet now Paranteritus" means -
A new law ought to regulate which is to follow, not the past.
Page 11 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT2. All laws which effect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect the vested right and obligation unless the legislative intent is clear and unambig- uous.
3. While considering the question of retrospective operation of the statute, the right affected must be first considered, whether there is a vested right. The amendment must be considered as a prospective so as to not to cause vested right and if the right is merely procedural, normally it is not treated as a vested right.
4. The intention of the Legislature is always be to gather the words always used by it in plain, grammatical meaning.
5. Retrospective operation of a statute is not to be given so as to impair the existing right or obligation, otherwise than as regards a matter of procedure, unless that effect cannot be effected without doing violence to the knowledge of the enactment. A statute, which impairs vested right or legal- ity of the past transactions or the obligation of a contract should not be held to be retrospective.
6. Even in respect of the amendments, substantive rights cannot be taken away by subsequent amendment, unless specifically enacted by the legisla- tion.
7. The law which only affects the procedural rights is presumed to be ret- rospective, unless such a construction is textually inadmissible.
8. A statute, which not only changes the procedure, but also creates new rights and obligations, shall be construed to be prospective unless otherwise provided either expressly or by necessary implication.
9. Whether the amendment is brought during the pendency of the suits or actions, whether such amendment has retrospective effect or prospective effect has to be considered with reference to object of the amendment, un- less it is expressly provided in the statute. But, however, if the rights and procedures are dealt with together, if the procedural alterations are inextri- cably linked with the changes simultaneously, it is not permissible to give retrospective effect of operation. Unless, Legislature has enacted such an intention, there is always general presumption that the statute is deemed to be prospective unless otherwise expressly provided.
10. The question whether statute or any provisions in it has retrospective operation has to be determined with reference to the intention of the legis- lation and it is to be gathered from the language with reference to the object and nature of the rights affected the circumstances under which the statute came to be. The statute which is not declaratory of pre-existing law nor the matter relating to procedure, but affects vested rights cannot be given a greater prospective, retrospective effect than it renders necessary. The test when decided a particular provision of law has to be given retrospective effect or not is not merely considered whether a law of procedure or sub- stantive law, but also any alleged questions existing rights including the rights of action which are substantive rights. If a law destroys an existing right or places language a restriction on it, no retrospective effect would be given unless statute is expressly enacted to that effect.
11. No person can have a vested right in the course of procedure and the plaintiff or defendant has a right of prosecution or defence in the manner prescribed for the time being and if the procedure is altered during the pendency of action, the altered procedure ought to be adopted. Legislature can always provide that pending proceedings shall be effected by an amendment Act, though in the absence of such any express provision amending Act cannot be held to be govern the pending proceedings.
12. A new law bringing about a change in forum does not affect pending actions unless there is clear expression to the said effect.
Page 12 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT13. Right of appeal is substantive right and it cannot be impaired as taken away by a statute retrospectively unless by specific provision in enactment or by necessary intendment, This right vests with the suitor at the time of institution of original proceedings. Any change in the law relating to ap- peals after institution of original proceedings which adversely touches this right is presumed not to be retrospective.
14. A change of forum except in pending proceedings is a matter of pro- cedure and therefore, if a new Act requires certain type of original pro- ceedings to be instituted before a special Tribunal constituted under the Act to the exclusion of Civil Court, all proceedings of that type whether based on old or new causes of action will have to be instituted before the Tribunal.
15. The statutes providing for new remedies for enforcement of a existing right are treated as procedural and applied to future as well as the past causes of action.
16. The classification of statute as either substantive or procedural does not necessarily determine whether it may have a retrospective operation. But, a statute of limitation is generally regarded as procedural. However, if its application to a past cause of action has effect of reviving or extin- guishing a right of suit such an operation cannot be said to be procedural. Consequently such procedural law is prospective in operation.
17. In the words of Dixon CJ "The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judi- cial remedy is not within the application of such a presumption".
18. In the words of S.R. Das, the cordinal rule of construction, however, in the absence of anything in the enactment to show that it has a retrospec- tive operation, it cannot be so construed as to have altering the law appli- cable to a claim in litigation at the time when the Act was passed. There- fore, if Legislature intends to apply a statute to the pending proceedings, it must indicate an express provision to that effect.
19. In matters of substitution by an amendment, it has to be construed that there is no real distinction between the repeal and an amendment. Whether a provision of an Act is omitted by an Act and the said Act simultaneously re-indicates new provision which substantively covers with certain modi- fications. In that event, such re-enactment is recorded as having force con- tinuously and modification are treated as changes with effect from the date of the enforcement of the re-enacted provision.
20. It makes no difference in application to these principles that the amendment is by substitution or otherwise. However, the statutes dealing with the procedures in contrast with the substantive rights are presumed to be retrospective, unless such a conclusion is textually inadmissible. If the new Act affects the matters of procedure, then only prima facie it ap- plies to all actions pending as well as future.
21. While the law relating to forum and limitation is procedural in nature while the law relating to right of action and right of appeal even though remedial is substantive in nature, that a procedural statute should not gen- erally be speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. A statute which not only changes the procedure but also creates new rights and obligations shall be construed Page 13 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT to be prospective, unless otherwise provided either expressly or by neces- sary implication,
22. A statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty or at- taches a new disability in respect of transactions already past must be pre- sumed to be intended not to have a retrospective effect and as a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, and there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective oper- ation than its language renders necessary.
23. Where the rights and procedure are dealt with together, the intention of Legislature may well be that old rights are to be determined by the old procedure and the new rights under substituted section by the new proce- dure. If the procedural alteration is closely and inextricably linked with the changes simultaneously introduced, it is not possible to give retrospec- tive effect to the procedure unless the Legislature has indicated such an intention either by express words or by necessary implication.
[2] Himachal Pradesh State Electricity Regulatory Commission vs. Himachal Pradesh State Electricity Board - (2014) 5 SCC 219.
In this case pending the appeal under section 27 of the repealed Act, appellate tribunal came to be constituted under Electricity Act, 2003 and implied transfer of the pending appeal was the proposition canvassed for consideration which was negated with pertinent observations thus:
"22. On a proper understanding of the authority in Garikapati Veeraya, which relied upon the Privy Council decision in Co- lonial Sugar Refining Co. ltd, three basic principles, namely, 22.1 The forum of appeal available to a suitor in a pending action of an appeal to a superior tribunal which belongs to him as of right is a very different thing from regulating procedure;
22.2 That it is an integral part of the right when the action was initiated at the time of the institution of action; and 22.3 That if the Court to which an appeal lies is altogether abolished without any forum constituted in its place for the disposal of pending matters or for lodgment of the appeals, vested right perishes, are established.
23. It is worth noting that in Garikapati Veeraya, the Consti- tution Bench ruled that as the Federal Court had been abol- ished, the Supreme Court was entitled to hear the appeal under Article 135 of the Constitution, and no appeal lay under Arti- cle 133. The other principle that has been culled out is that Page 14 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT the transfer of an appeal to another forum amounts to in- terference with existing rights which is contrary to well- known general principles that statutes are not to be held retrospective unless a clear intention to that effect is man- ifested.
24. In Dhadi Sahu (supra), it has been held thus:- ( SCC p. 262, paras 18 and 21) "18. It may be stated at the outset that the gen-
eral principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are pending to the court or the tribunal which under the new law gets juris- diction to try them.
x x x
21. It is also true that no litigant has any vested right in the matter of procedural law but where the ques- tion is of change of forum it ceases to be a question of procedure only. The forum of appeal or proceedings is a vested right as opposed to pure procedure to be followed before a particular forum. The right be- comes vested when the proceedings are initiated in the tribunal or the court of first instance and unless the legislature has by express words or by necessary im- plication clearly so indicated, that vested right will continue in spite of the change of jurisdiction of the different tribunals or forums."
25. At this stage, we may state with profit that it is a well settled proposition of law that enactments dealing with substantive rights are primarily prospective unless it is expressly or by necessary intention or implication given retrospectivity. The aforesaid principle has full play when vested rights are affected. In the absence of any un- equivocal expose, the piece of Legislation must exposit adequate intendment of legislature to make the provision retrospective. As has been stated in various authorities referred to hereinabove, a right of appeal as well as fo- rum is a vested right unless the said right is taken away by the legislature by an express provision in the statute by necessary intention.
26. Mr. Gupta has endeavoured hard to highlight on Section 111 of the 2003 Act to sustain the stand that there is an in- tention for change of forum. It is the admitted position that legislature by expressed stipulation in the new legislation has not provided for transfer of the pending cases as was done by Page 15 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT the Parliament in respect of service matters and suits by fi- nancial institutions/banks by enactment of Administrative Tribunal Act, 1985 and Recovery of Debts due to Banks and Financial Institution Act, 1993. No doubt right to appeal can be divested but this requires either a direct legislative man- date or sufficient proof or reason to show and hold that the said right to appeal stands withdrawn and the pending pro- ceedings stand transferred to different or new appellate fo- rum. Creation of a different or a new appellate forum by itself is not sufficient to accept the argument/contention of an im- plied transfer. Something more substantial or affirmative is required which is not perceptible from the scheme of the 2003 Act.
28. We have referred to the aforesaid paragraphs as Mr. Gupta has contended that when there is repeal of an enact- ment and substitution of new law, ordinarily the vested right of a forum has to perish. On reading of Section 185 of the 2003 Act in entirety, it is difficult to accept the submission that even if Section 6 of the General Clauses Act would ap- ply, then also the same does not save the forum of appeal. We do not perceive any contrary intention that Section 6 of the General Clauses Act would not be applicable. It is also to be kept in mind that the distinction between what is and what is not a right by the provisions of the Section 6 of the General Clauses Act is often one of great fitness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere hope, or expectation of, or liberty to apply for, acquiring right (See M.S. Shivananda v. Karnataka State Road Transport Corporation and Others."
(emphasis supplied) [3] Videocon International Limited vs. Securities and Exchange Board of India- (2015) 4 SCC 33.
In this case the scope of appeal was reduced as also the forum therefor was changed during the pendency of the appeal in the High Court. It was held that being a vested right, right of appeal as was available at the commencement of the proceeding would continue to vest in a party until eventual culmination of proceeding. The relevant observations in this context can be beneficially referred to thus:
Page 16 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT"43. Having recorded our conclusion, as has been noticed in the foregoing paragraph, it is apparent, that insofar as the vesting of the second appellate remedy is concerned, neither the date of filing of the second appeal, nor the date of hearing thereof, is of any relevance. Legal pursuit of a remedy, suit, appeal and second appeal, are steps in a singular proceeding. All these steps are deemingly connected by an intrinsic unity, which are treated as one singular proceeding. Therefore, the relevant date when the appellate remedy (including the second appellate remedy) becomes vested in the parties to the lis, is the date when the dispute/lis is initiated Insofar as the present controversy is concerned, it is not a matter of dispute, that the Securities Appellate Tribunal had passed the impugned order (which was assailed by the Board), well before 29.10.2002. This singular fact itself, would lead to the conclusion, that the lis between the parties, out of which the second appellate remedy was availed of by the Board before the High Court, came to be initiated well before the amendment to Section 15Z by the Securities and Exchange Board of India (Amendment) Act, 2002. Undisputedly, the unamended Section 15Z of the SEBI Act, constituted the appellate package and the forum of appeal, for the parties herein. It is, therefore, not possible for us to accept, the contention advanced at the hands of the learned counsel for the appellant, premised on the date of filing or hearing of the appeal, preferred by the Board, before the High Court. We accordingly reiterate the position expressed above, that all the appeals preferred by the Board, before the High Court, were maintainable in law."
(emphasis supplied) 4.2 The salient features emerging from the authoritative pronouncements above are thus:
(1) The forum of appeal in the pending appeal belongs to the appellant as of right; the forum is different thing than the regulating procedure;
(2) The forum is integral part of the right available to the litigant at the inception of the action and remains intact with him until the exhaustion of remedies (3) Transfer of appeal to another forum amounts to interference with existing rights which is contrary to the well-known principle that the statute/enactment cannot be retrospective in absence of clear intention or manifest implication;
(4) Where the question of change of forum is involved it ceases to be a mere procedure while a mere procedure to be followed before a particular forum cannot be claimed as right, once the action in the nature of appeal Page 17 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT is initiated, both; forum and appeal culminates into a vested right from inception of the original case. (5) The legal pursuit of the remedies are steps in a singular proceedings connected by intrinsic unity to be treated as one singular proceedings and therefore all remedies get vested in a party from the initiation of the original proceedings.
5. Very crucial aspects emerging from the above judicial pronouncement is the vesting of right to appeal, inception of such vesting and the forum available to the party at the time of such inception and the effect of the relevant provision under the General Clauses Act bearing on the right to remedy, the circumstances under which the vested right can be withdrawn. Upon the resort being had to an original remedy, the whole package including the appeal and other remedies gets vested in a party until final culmination of the proceedings with the ultimate forum. Although it would be permissible to withdraw or substitute the vested rights with enhanced or circumscribed limits with retrospective effect, such exercise can only be by express contemplation or by legal implication. True that the procedure for availing of right to appeal cannot possibly be claimed as vested right, the right to appeal if interwoven with the procedure and is inseverable which it generally is, it would vest in a party and cannot be withdrawn except by expressed provision or implication.
5.1 It also can be culled out from the judicial pronouncement as above that where the question is of change of forum it is not a question of mere procedure and that the forum of appeal or proceeding in the vested right as distinguished from pure procedure to be followed before a particular forum for availing a remedy of appeal. A mere creation of forum would be inadequate to approve the argument as to implied transfer of the case to such forum. A substantial affirmation in the legal document would Page 18 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT be required for the purpose. This would be more so when a vested right to a remedy is saved to a litigant even under the provision of the General Clauses Act.
6. Reverting to Gopalsinh Natvarsinh Vasadiya (supra), apart from the inaccuracies noted above, the case failed to address the core issue i.e. the effect of notification of 2014. It also failed to notice that section 30 (3) was relevant only in reference to the appointed day as defined in Gujarat Civil Courts Act, 2005 i.e. 09.05.2005 and contemplated the transfer of the pending cases as on the said date to the new jurisdictions which ofcourse was not the question arising from the facts of that case. The case also failed to notice that the issue in reference to notification of November 2014 was elaborately addressed in Khurshid Cyrus (supra) and thus required an appropriate reference and consideration. This court is thus unable to subscribe to the view expressed in Gopalsinh Natvarsinh Vasadiya (supra).
7. Reverting to the issue on hand it can be noticed that subject to specified limitations in Article 225 of Constitution of India, a wide legislative powers under which retrospectivity of the notification (supra) could have been contemplated had it been intended, have been invested in the High Court for administration of justice. In exercise of such powers, by express provision the notification was made effective from 01.11.2014 but a provision for transfer of pending cases was deliberately avoided. Pertinently even the legislature while providing for automatic transfer of pending cases from the jurisdiction of Senior Civil Judge to enhanced pecuniary jurisdiction of Civil Judge ( section 14A of the Gujarat Civil Courts Act, 2005) deliberately avoided the parallel contemplation in the matter of appeals; thereby manifesting the clear intention that unamended Page 19 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT pecuniary appellate jurisdiction would be unaffected by the notification in question.
8. The above-stated elaborately discussed legal position did not form the matter of consideration in Rameshchandra (supra) and therefore the ratio that the amendment in the pecuniary jurisdiction of the court would ipso facto entail into the transfer of the case to the new pecuniary jurisdiction being contrary to Himachal Pradesh State Electricity Regulatory Commission (supra) is required to be overruled. Similar would be the fate of Gopalsinh Natvarsinh Vasadiya & 4 vs. P.S.I & 7 (supra)
9. Applying the relevant legal provisions as above and the ratio discerning from judicial pronouncements (supra), to the facts of the present case, in absence of the dispute that the appeal in question has been instituted in the competent pecuniary jurisdiction preceding the effective date of the notification in question, it cannot be disputed that the remedies including right to appeal got crystalized in favour of the appellant at the inception of the suit and the appellant is entitled to pursue the remedy of appeal in the unamended appellate pecuniary jurisdiction of the High Court. Further applying the ratio as discussed above, it cannot be disputed that the notification amending the pecuniary jurisdiction as above is a piece of legislation which does not provide for transfer of appeals to the amended pecuniary jurisdictions and from the material on record it is not possible to infer implied transfer of such appeals.
10. What follows from the above discussion is that the appeal is a vested right from the inception of the original action along with all the forums available in hierarchy in the procedure regulating such action and therefore Page 20 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT in absence of expressed retrspectivity or retrspectivity by implications in the law altering the forum, such vested right cannot be taken away. In the facts of the present case, there is nothing to indicate retrspectivity of the notification in question; either expressed or implied and therefore this Court is of the opinion that the appeal is required to be prosecuted under the amended pecuniary jurisdiction.
11. For the foregoing reasons; barring the mention of inaccurate effective date of the notification in question (effective date is 01.11.2014 but the decision mentions as 31.10.2014) this court finds the view expressed in Khurshid Cyrus(supra) as the correct view. It is held that the notification under consideration should operate prospectively and appeals instituted prior to the effective date i.e. 01.11.2014 in the unamended competent pecuniary appellate jurisdiction are maintainable in that jurisdiction and the transfer of such appeals would be contrary to the legal positions set out in this judgement. The reference is answered accordingly.
(G.R.UDHWANI, J) NIRU V P Patel J (Dissenting)
1. I have gone through the reasons stated by my learned brother in the above judgment, wherein it is held that the notification under consideration should operate prospectively and appeals instituted prior to the effective dated i.e. 01.11.2014 in the unamended competent pecuniary appellate jurisdiction are maintainable in that jurisdiction and transfer of such appeal would be contradictory to the legal position.
Page 21 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT2. With due respect, I defer from the conclusion arrived by my learned brother, for the reasons stated as under:
3. First of all, I placed reliance on the judgment of the Apex Court, reported in (2018) 13 SCC 1, in case of Securities and Exchange Board of India Vs. Classic Credit Limited. The relevant paras read as under:
Fact of the case under cited Judgment "1. Leave granted, in all the special leave petitions. Complaints were filed against the private parties herein, for offences punishable under the Securities and Exchange Board of India Act, 1992 (hereinafter referred to as 'the SEBI Act'). At the time when the complaints were filed under Section 26(2) of 'the SEBI Act', the accused concerned were to be tried by a Metropolitan Magistrate (or, a Judicial Magistrate of the first class).
2. In this bunch of cases, the contention before this Court, at the behest of the private parties is, that for offences allegedly committed before 29.10.2002 (whether or not, taken up for trial before 29.10.2002) the trial was to be conducted by the concerned Metropolitan Magistrate (or, a Judicial Magistrate of the first class), and none other. It is relevant to record, that in these cases complaints filed against the private parties herein, pertain to allegations of commission or omission, prior to 29.10.2002. In some of these matters, proceedings were initiated prior to 29.10.2002, while in others, it was initiated after 29.10.2002. The above contention pertaining to the 'forum', for trial by a Metropolitan Magistrate (or, a Judicial Magistrate of the first class), was premised on a purely legal assertion, founded on the format of Sections 24 and 26 of 'the SEBI Act', as they existed prior to the Securities and Exchange Board of India (Amendment) Act, 2002 (hereinafter referred to as 'the 2002 Amendment Act'). It was the submission of the private parties, that the amended provisions under 'the 2002 Amendment Act' had no express or implied retrospective effect, and therefore, the amendment carried out through 'the 2002 Amendment Act', would not have any impact, particularly on the 'forum' for trial (-the Court of Metropolitan Magistrate, or Judicial Magistrate of the first class).
It was submitted, that trial in all these matters, with reference to offences committed prior to 29.10.2002, whether or not put to trial, could only be conducted by the Metropolitan Magistrate (or, Judicial Magistrate of the first class).
Page 22 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT4. After 'the 2002 Amendment Act', all pending matters (-before Metropolitan Magistrates, or Judicial Magistrates of the first class) were committed to the concerned, Court of Session. This was done, under the assumption, that 'the 2002 Amendment Act' had the effect of retrospectively altering the 'forum' for trial. And as such, matters which were being tried by Metropolitan Magistrates (or, Judicial Magistrates of the first class), and were pending before such Courts, were transferred to the concerned Court of Session. The above change of 'forum' for trial, was assailed by some of the private parties, before the court to which the matters were committed. Their challenge failed. The matters were then carried, to the jurisdictional High Court, i.e., the High Court of Judicature at Bombay (hereinafter referred to as, 'the Bombay High 4 Court'). Alternatively, some of the private parties, directly approached the jurisdictional High Court, to assail the changed 'forum' of trial.
Order under challenge before Apex Court
5. Before the Bombay High Court, the SEBI supported the determination rendered by the Court of Session, and also, placed reliance on a decision rendered by the High Court of Delhi at New Delhi (hereinafter referred to as 'the Delhi High Court') in Panther Fincap and Management Services Ltd. v. Securities and Exchange Board of India (decided on 5.9.2006), wherein it had been concluded, that the amendment to Section 26 of 'the SEBI Act' through 'the 2002 Amendment Act', related to a change in 'forum' of trial, and therefore, the amendment was only procedural. And consequently, an amendment of procedure being impliedly retrospective, the Delhi High Court held, that the committal of pending cases to the Court of Session, was justified in law.
6. A Division Bench of the Bombay High Court, through the impugned judgment dated 16.01.2008, collectively disposed of all matters pending before it, by setting aside the judgment rendered by the Court of Session, by taking a view different from the one recorded by the Delhi High Court.
The SEBI therefore approached this Court to assail the judgment rendered by the Bombay High Court. Some of the cases in this group of cases (being collectively disposed of through the instant judgment), arise out of the judgment of the Bombay High Court dated 16.01.2008. All the remaining cases, arise out of a similar sequence of events, which culminated before the Delhi High Court, Page 23 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT wherein the lead judgment was 5 rendered in Mahender Singh v. High Court of Delhi (Writ Petition (C) No.141 of 2007, decided on 11.01.2008). It is apparent, that the above judgment of the Delhi High Court dated 11.01.2008, was rendered just a few days before the impugned judgment was rendered by the Bombay High Court, on 16.01.2008.
Ratio laid down by the Apex Court
49. We will now deal with the legality of the propositions canvassed, at the hands of learned counsel for the rival parties. In our considered view, the legal position expounded by this Court in a large number of judgments including New India Insurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840; Securities and Exchange Board of India v. Ajay Agarwal, (2010) 3 SCC 765; and Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 4 SCC 696, is clear and unambiguous, namely, that procedural amendments are presumed to be retrospective in nature, unless the amending statute expressly or impliedly provides otherwise. And also, that generally change of 'forum' of trial is procedural, and normally following the above proposition, it is presumed to be retrospective in nature, unless the amending statute provides otherwise. This determination emerges from the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602; Ranbir Yadav v. State of Bihar (1995) 4 SCC 392, and Kamlesh Kumar v. State of 72.
50. We have also no doubt, that alteration of 'forum' has been considered to be procedural, and that, we have no hesitation in accepting the contention advanced on behalf of the SEBI, that change of 'forum' being procedural, the amendment of the 'forum' would operate retrospectively, irrespective of whether the offence allegedly committed by the accused, was committed prior to the amendment.
51. Whilst accepting the contentions advanced on behalf of learned counsel for SEBI pertaining to 'forum' (with reference to which inferences have been drawn in the foregoing paragraph), it is not possible for us to outrightly reject the contentions advanced by Mr. C.A. Sundaram, learned Senior Advocate, while projecting the claim of the accused. We are not oblivious of the conclusions recorded by this Court in Commissioner of Income Tax, Orissa v. Dhadi Sahu, Page 24 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT 1994 Supp (1) SCC 257, wherein it was held that a law which brings about a change in the 'forum' does not affect pending actions, unless an intention to the contrary is clearly shown. One of the modes in which such intentions can be shown is, by making a provision for change for a proceeding from the court or the tribunal where it was pending, to the court or tribunal under which the new law gets jurisdiction. In the said judgment, this Court also observed, that it was true that no litigant had any vested right in the matter of procedural law, but where the question is of the change of 'forum', it ceases to be a question of procedure only, with reference to pending matter. The 'forum' of appeal or proceedings, it was held, was a vested right as opposed to pure procedure to be followed before a particular 'forum'. It was therefore concluded, that a right becomes vested when the proceedings are initiated, in spite of change of jurisdiction/forum by way of amendment thereafter.
52. So also, in Manujendra Dutt v. Purnedu Prosad Roy Chowsdhury, AIR 1967 SC 1419, wherein a question arose, as to whether, by the deletion of Section 29 of the Thikka Tenancy Act, 1949, the jurisdiction of the Controller over a pending suit was taken away. It was held by this Court, that the deletion of Section 29 did not deprive the Controller of his jurisdiction to try the pending suit, on the date when the Amending Act came into force. It was pointed out, that though the amending Act did not contain a saving clause, the saving contained in Section 8 of the Bengal General Clauses Act, 1899, which corresponded with Section 6 of the Central Act, fully applied to the issue. And as such, the transfer of a suit having been lawfully filed under Section 29 of the Act could not be affected by its deletion or by its amendment.
53. Similarly, in Mohd. Idris v. Sat Narain, AIR 1966 SC 1499, the question which arose was, whether a Munsif who was trying a suit under the U.P. Agriculturist Relief Act ceased to have jurisdiction, after the passing of the U.P. Zamindari Abolition and Amendment Act, 1953, which conferred jurisdiction on an 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 case were to stand transferred to the Assistant Collector for disposal, the Munsif continued to have jurisdiction to try the suit. It was also observed in the above judgment, that the provisions for change over of proceedings from one court to another, are only found in a statute, which takes away the jurisdiction of one court, and confers it on another, in pending Page 25 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT actions. Since the amending Act did not show the pending proceedings before the court would abate, it was felt, that the court before which proceedings were filed, continued to have the jurisdiction to adjudicate the same. The above position has been considered affirmatively by this Court also in Nani Gopal Mittal v. State of Bihar, AIR 1970 SC 1636; Ambalal Sarabhai Enterprises v. Amrit Lal and Co., (2001) 8 SCC 397; R. Kapilnath v. Krishna, (2003) 1 SCC 444; Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 14 SCC 696; and Videocon International Limited v. SEBI.
54. From a perusal of the conclusions drawn in the above judgments, we are inclined to accept the contention, that change of 'forum' could be substantive or procedural. It may well be procedural when the remedy was yet to be availed of, but where the remedy had already been availed of (under an existing statutory provision), the right may be treated as having crystalised into a vested substantive right.
55. In the latter situation referred to (and debated) in the preceding paragraph, where the remedy had been availed of prior to the amendment, even according to learned counsel for the private parties, unless the amending provision by express words, or by necessary implication, mandates the transfer of proceedings to the 'forum' introduced by the amendment, the 'forum' postulated by the unamended provision, would continue to have the jurisdiction to adjudicate upon pending matters (matters filed before amendment). In view of the above, we are of the considered view, that no vested right can be claimed with reference to 'forum', where the concerned court, had not taken cognizance and commenced trial proceedings, in consonance with the unamended provision.
56. Insofar as the matters where proceedings had already commenced before the amendment, change of 'forum' for trial came into effect, it is apparent from the judgments referred to in the preceding paragraph, that the general principle is that a law which brings about a change in the 'forum', does not affect pending actions, unless intention to the contrary is clearly shown. What needs to be determined with reference to 'the 2002 Amendment Act', as well as, with reference to 'the 2014 Amendment Act' is, whether an intention to the contrary was expressed therein, so as to alter the 'forum', where proceedings were pending. And to bring such proceedings to the 'forum' contemplated by the amendment.
Page 26 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT57. Having given our thoughtful consideration to the proposition referred to in the preceding paragraph, we are of the view, that Section 26, as amended through 'the 2002 Amendment Act', leaves no room for any doubt, that the erstwhile 'forum' would cease to be the adjudicatory authority and the newly created 'forum' - the Court of Session, would deal with all pending matters as well. The phrase, "No court inferior to that of a court of session shall try any offence punishable under this Act", leaves no room for any doubt, that the erstwhile 'forum' - the Court of Metropolitan Magistrate (or, Judicial Magistrate of the first class), was denuded of its jurisdiction. The court having jurisdiction earlier, being a court inferior to a Court of Session ceased to have the jurisdiction to adjudicate matters punishable under 'the SEBI Act', after the amendment under 'the 2002 Amendment Act' came into force, on 29.10.2002. There can be no doubt whatsoever, that 'the 2002 Amendment Act', expressly diverted jurisdiction from the Metropolitan Magistrates (and, Judicial Magistrates of the first class) to try offences under 'the SEBI Act', after 'the 2002 Amendment Act' became operational.
59. ... Herein, the Special Courts (a Court of Session or an Additional Sessions Judge, in terms of Section 26D(1) of 'the 2014 Amendment Act') provides for a position different from the provisions contained in the Code of Criminal Procedure. Now, by 'the 2014 Amendment Act', the function of taking cognizance has been vested with Special Court, conferred with the responsibility to conduct trials. In our considered view, therefore, all pending matters where cognizance had been taken and proceedings had commenced, before the Court of Session, would not be affected. 'The 2014 Amendment Act' which provided for a change of 'forum', also authorized a Special Court to take cognizance. It is not reasonable to read anything further into the words highlighted by learned senior counsel. 'The 2014 Amendment Act' expressly provided, that for all offences committed even prior to 'the 2014 Amendment Act, proceedings would be conducted only before the Special Court. The provision itself therefore expressly mandated, that the change of 'forum' would operate retrospectively, and as such, pending proceedings would necessarily have to be transferred to the changed 'forum' - the Special Court. This is our considered view. For the reasons recorded above, we hereby hold, that even for such matters where trial had commenced under the unamended provision, after the amendments, which we have held to be operational retrospectively, the trial would move to the changed 'forum' (to the Page 27 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT Court of Session, after 'the 2002 Amendment Act' and, to the Special Court, after 'the 2014 Amendment Act').
4. It will be benefited to place hereunder the remarkable points are as under:
A) It is clear and unambiguous, namely, that procedural amendments are presumed to be retrospective in nature, unless the amending statute expressly or impliedly provides otherwise. B) Generally change of 'forum' of trial is procedural, and normally in the proposition of procedural amendments presumed to be retrospective in nature, unless the amending statute provides otherwise.
C) The change of 'forum' being procedural, the amendment of the 'forum' would operate retrospectively.
D) The law which brings about a change in the 'forum' does not affect pending actions, unless an intention to the contrary is clearly shown. One of the modes in which such intentions can be shown is, by making a provision for change for a proceeding from the court or the tribunal where it was pending, to the court or tribunal under which the new law gets jurisdiction.
E) No litigant had any vested right in the matter of procedural law, but where the question is of the change of 'forum', it ceases to be a question of procedure only, with reference to pending matter. The 'forum' of appeal or proceedings, is a vested right as opposed to pure procedure to be followed before a particular 'forum'. A right becomes vested when the proceedings are initiated, in spite of change of jurisdiction/forum by way of amendment thereafter. F) Though the amending Act did not contain a saving clause, the saving contained in Section 7 and 7A of the Bombay General Clauses Act, 1904, which corresponded with Section 6 of the Central Act, fully applied to the issue. And as such, the transfer of a suit having been lawfully filed under Section 30(3) of the Act,2005 could not be affected by amended notification.
G) The provisions for change over of proceedings from one court to another, are only found in a statute, which takes away the jurisdiction of one court, and confers it on another, in pending actions.Page 28 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT
H) It may well be procedural when the remedy was yet to be availed of, but where the remedy had already been availed of (under an existing statutory provision), the right may be treated as having crystallized into a vested substantive right.
Application of Section 15 of the Gujarat Civil Court Act, 2005 (for brevity 'the Act 2005'):
5. The provision of Section 15 of the Gujarat Civil Court Act, 2005, which reads as under:
"Appeals.- (1) Appeals from the decrees and others passed by a Court of District Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie to the High Court.
(2) Appeals from the decrees and others passed by a Court of Senior Civil Judge in original suits and proceedings of civil nature shall, when such appeals are allowed by law, lie-
(a) to the Court of the District Judge of the district when the amount or value of the subject matter of the original suit or proceedings is less than five lakhs of rupees or such other sum as the High Court may, from time to time, specify;
(b) to the High Court in other cases.
(3) Appeals from the decrees and others passed by a Court of Civil Judge in suits or proceedings of a civil nature shall, when such appeals are allowed by law, lie to the Court of District Judge of the district:
Provided that the High Court may, in consultation with the State Government, by notification, direct that such appeals against decrees and orders may lie to the Court of Senior Civil Judge when the amount or value of the subject matter of the suit or proceeding is less than one lakh of rupees and thereupon appeals shall be preferred accordingly.Page 29 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT
(4) The provision of this section will apply to all decreed and others made after the appointed date irrespective for the fact whether the suits or proceedings in which they are made were instituted before or after the appointed date.
5.2 The amended provision of Section 15 of the Gujarat Civil Court (Amendment) Act, 2014, which reads as under:
... "4. In the principal Act, in section 15, in sub-section (2), in clause
(a), for the words "or such other sum as the High Court may, from time to time specify", the word "or such other sum as the High Court may, by notification, from time to time specify" shall be substituted."
5.3 On perusing the Section 15 of the Act, 2005 and Section 4 of the Gujarat Civil Court (Amendment) Act, 2014 as above, it can be seen that there is no provision as regards to the power entrusted to the High Court to notify the date of implementation. The High Court is empowered under Section 15 to specify only 'sum' ie. the amount or value of the subject matter of the original suit or proceedings. The effective date is required to be considered keeping in mind the Section 1 read with Section 30 of the Act 2005 or Section 5 of the Gujarat General Clauses Act 1904 as may be applicable.
Application of Section 30(3) of the, 2005 (for brevity 'the Act 2005'):
6. This provision is applicable irrespective of following provision:
(A) Sub-Section (1) of Section 30 of the Act, 2005.
(B) Any other provision of the Act 2005 or in the Bombay Civil Court Act, 1869.
(C) Any other law or the provision having the force of law.
6.1 It is provided that all suits, appeals and proceedings connected therewith, pending before any court (herein this case High Court), which Page 30 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT under this Act, have to be instituted or commenced in any other Court (herein this Case District Court), Shall, on the appointed date (the appointed dated is defined in Section 2(a) of the Act, 2005 i.e. Appointed date means the date appointed under Sub-Section (3) of Section 1), stand transferred to such other Court (herein this District Court) and shall be continued and shall be disposed of by such other Court (District Court) in accordance with law as if such suit and the proceeding had been instituted or commenced in such other court (District Court) under this Act.
6.2 The meaning of the 'appointed date' is required to be interpreted according to statutory definition provided in the Act. No other interpretation is permissible when the language of the statue is clear and unambiguous.
6.3 While interpreting the provision, of Section 30(3) of 'the Act' the other provisions of the Act, 2005 will be silent. One of the argument is made that there is no provision for the appeal similar to the Section 14(A) of 'the Act, 2005' which is meant for suits and proceedings. The Section 30(3) of the Act, 2005 will prevail over the other provisions of the Act, 2005. Therefore, there will be no effect, if any provision similar to Section 14(A) of the Act, 2005 is made or not.
7. The general rule for the interpretation of statute is that the Court has to consider mainly two factors amongst other factors (1) object of the Act and (2) the effect of the interpretation by the judgment of the Court on the society. The object of the amended notification is to secure the justice at door means the litigant may have right to access of justice at the nearest Court i.e. Taluka Court or District Court. The provision is amended because of prosperity development in the Gujarat where, the price of the properties are increased and depreciation of value of Rupees. If the appeals Page 31 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT pending in the High Court are transer to the District Court, naturally the litigant will be benefited by two fold. (A) He can get justice at the door by saving time and at lesser expense, etc. (B) He may have another right (Second Apeal under Section 100 of the Code of Civil Procdure, 1908) to challenge the order before one more higher forum i.e. the High Court after the appeal is disposed by the District Court. If interpretation as regards to the notification under consideration is made retrospectively the litigants will be benefited. No other person have disadvantage of such interpretation.
8. I have gone through the judgment referred by my learned brother. The first judgment is 2004 (5) ALT 755- Vallabhaneni Lakshmana Swamy vs. Valluru Basavaiah. This judgment is delivered by the Constitution Bench of the Andhra Pradesh High Court. The Andra Pradesh High Court has carved out general principles of interpretation of statute retrospectively or prospectively, considering the different judgments of the High Court and Supreme Court. The above principle is required to be applied considering the facts of the case, legal provision under challenge with corresponding provision of law, etc. The principle cannot be applied hastily.
9. The Second judgment referred is Himachal Pradesh State Electricity Regulatory Commission vs. Himachal Pradesh State Electricity Board - (2014) 5 SCC 219. This judgment is delivered by the Hon'ble Supreme Court. This Judgment is considered in the judgment of the Apex Court in case of Videocon International Limited Vs. Securities and exchange Board of India - (2015) 4 SCC 33, which is the third judgment referred by my learned brother.
Page 32 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT10. The judgment referred as above i.e. Securities Exchange Board of India Vs. Classic Credits Limited (Supra) has considered the ratio laid down in the Case of Videocon International Limited Vs. Securities and exchange Board of India - (2015) 4 SCC 33 and other judgments. This judgment is latest law laid down by the Hon'ble Apex Court.
11. The Hon'ble Apex Court has concluded in the above referred Securities Exchange Board of India Vs. Classic Credits Limited (Supra) case as under:-
"Para 59. The provision itself therefore expressly mandated, that the change of 'forum' would operate retrospectively, and as such, pending proceedings would necessarily have to be transferred to the changed 'forum' - the Special Court. This is our considered view. For the reasons recorded above, we hereby hold, that even for such matters where trial had commenced under the unamended provision, after the amendments, which we have held to be operational retrospectively, the trial would move to the changed 'forum'."
12. Considering the ratio laid down by the Hon'ble Apex Court in above Securities Exchange Board of India Vs. Classic Credits Limited (Supra), aim and object the amended notification uunder consideration, Provision of Section 30(3) of the Act, 2005 by which pending appeals stand transfer is made, I am of the view that the notification under consideration required to be treated as retrospectively. Therefore, the Appeals pending before the High Court by virtue of such notification shall be treated as stand transferred to the concerned District Court for disposal in accordance with law.
13. As the dissenting view are expressed by us, the matter is required to Page 33 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020 C/FA/5/2013 CAV JUDGMENT be place before the Hon'ble the Chief Justice for further orders. The Registry is directed to place the matter before the Hon'ble the Chief Justice for passing appropriate orders in the matter.
(V. P. PATEL, J) Piyush Page 34 of 34 Downloaded on : Fri May 29 22:59:03 IST 2020