1 D.B. CIVIL SPECIAL APPEAL (W) NO.663/2006 Management Committee Vs. Civil Judge (J.D.) Cum J.M., Jodhpur City and Anr. Date of Order :: 13.4.2007 HON'BLE MR JUSTICE RAJESH BALIA HON'BLE MR JUSTICE BHANWAROO KHAN Mr. Rakesh Kalla, for the appellant. Mr. M.S. Panwar, for the respondent. Heard learned counsel for the parties. This appeal is directed against the order dated 12.9.2006 passed by learned Single Judge dismissing the writ petition filed by the appellant Management Committee. Shorn of all details, the facts necessary for the present purposes, which need be noticed are that the appellant-petitioner was directed to pay the respondent the amount of gratuity payable on his retirement in terms of Non-Government Educational Institutions Act, 1989. Directions were also issued to allow the respondent to encash leave due to him at the time of retirement subject to maximum of 300 leave in balance. The time fixed by order for compliance was within three months. This order was passed 2 on 21.12.2002 by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur. The writ petition filed against the aforesaid order was also dismissed by this Court on 17.8.2005. During the pendency of the writ petition further proceedings before executing court were stayed. Be that as it may, after dismissal of the writ petition, the execution proceedings commenced and the present appellant-petitioner raised a preliminary objection as to maintainability of the execution proceedings before the Civil Court pointing out that when the order was passed by the Tribunal on 21.12.2002, there was no provision for executing the orders passed by the Tribunal. Section 27-A was inserted in the Act after the order was passed by the Tribunal and therefore, execution proceedings in terms of the amended provisions could not be maintained. This objection was over-ruled by the executing Court. The said order was made subject matter of S.B. Civil Writ Petition No. 5106/2006 for setting aside the order of the executing Court over-ruling the objection as to the maintainability of the execution proceedings. 3 By the judgment under appeal, the learned Single Judge has dismissed the writ petition holding that since the date on which the impugned order was passed by the Tribunal it had power to execute the order passed earlier by it and therefore, there is no question of retrospective operation of law by giving effect to the law in present though the fact of the matter is that the transaction giving rise to jurisdiction took place in the past. Since it was a remedial statute providing machinery for implementing the orders passed by the Tribunal and was only to make the provisions more effective, the execution of order which was otherwise dependent on other proceeding was to be taken under the Act itself. In such circumstances, it is inappropriate to call the provisions in question providing for the execution of the orders passed by the Tribunal to be retrospective in operation. Aggrieved with the order of learned Single Judge, the present appeal is before us. The first contention of learned counsel for the appellant is that the law which came into effect after passing of the order directing the appellant to pay gratuity and leave encashment to 4 the respondent cannot be executed in accordance with the provisions which was not in existence at the time when the order was passed. This contention is devoid of any merit. The law is well settled that rule against retrospective construction is not applicable to a statute merely “because a part of the requisites for its action is drawn from a time antecedent to its passing.” The principle was first enunciated in R. v. St. Mary White Chapels (Inhabitants), (1848) 12 QB 120. The principle has since been well settled and approved by a catena of the decision of the Hon'ble Supreme Court also. Reference in this connection may be made to Rao Shiv Bahadur Singh and Anr. Vs. The State of Vindhya Pradesh, AIR 1953 SC 394 and Union of India Vs. Madan Gopal Kabra, AIR 1954 SC 158. In Rao Shiv Bahadur Singh's case, the Hon'ble Supreme Court quoted with approval that statute which in its direct operation is prospective, cannot properly be called retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. The principle was reiterated in Madan 5 Gopal Kabra's case 1954 SC 158. The principle was recently reiterated by the Hon'ble Supreme Court in Dilip Vs. Mohd. Azizul Haq and Anr. AIR 2000 SC 1976. The right to enforce the order passed by the Tribunal is a pre-existing right and right to enforce such order through some machinery is inherent in it. The law does not envisage an adjudicating process without inherent imperative of enforceability of such adjudicating determinations. Through what procedure or mechanism the rights determined through adjudication may be enforced is a matter of procedure and not a part of substantive right. That right has now been made more effective by provided the remedy within the frame work of the statute itself. Therefore, it is misconceived to call the provision providing forum for enforcement of substantive rights determined by the order of Tribunal having any element of conferment of substantive right or retrospective. Apart from the principle noticed above there is yet another well settled principle in this regard that there is no vested right to any 6 forum to seek remedy. That relates to realm of procedure, and unless law otherwise provides the amendment in procedure governs even pending proceedings. There can be no objection to initiate proceedings for enforcement of adjudicated right in the forum provided for that purpose on the date such proceedings are initiated. That being so this contention of the learned counsel for the appellant cannot be sustained. The other contention which has been raised by learned counsel for the appellant before us and which finds place in the order by which notices were issued is that the respondent has lodged inflated claim of his dues against the appellant. The execution court made the calculation without giving proper opportunity to the appellant. From the material placed before us we do not find that this stage has at all being reached. In fact, after rejecting the preliminary objection the execution proceeding has yet to proceed. If the appellant has any objection to the computation of claim made by the respondent, it should raise an objection before the execution court and if any such objection is filed about the correct computation of the amount 7 payable by the appellant to the claimant, the same is bound to be determined by the executing court as a matter incidental to the execution proceeding for the determination of the aforesaid issue raised by the appellant, at this stage. Subject to above, the appeal is dismissed. No costs. (BHANWAROO KHAN),J. (RAJESH BALIA),J. /rm