NEENA ANEJA & ANR. versus JAI PRAKASH ASSOCIATES LTD.
[2021] 15 S.C.R. 96, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2021] 15 S.C.R. 96
96
NEENA ANEJA & ANR.
v.
JAI PRAKASH ASSOCIATES LTD.
(Civil Appeal Nos. 3766-3767 of 2020)
MARCH 16, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Consumer Protection Act, 2019 – s.107 –Consumer Protection
Act, 1986 – Repeal of 1986 Act –Proceedings instituted thereunder,
if can be continued under the same forum– Enhancement of
pecuniary jurisdiction – Pending proceedings, if to be transferred
–Consumer case was instituted by appellants before the NCDRC on
18.06.20 under the provisions of the 1986 Act–2019 Act came into
force 20.07.20 – Case dismissed by NCDRC on the ground that
after the enforcement of the 2019 Act, its pecuniary jurisdiction
has been enhanced from rupees one crore to rupees ten crores and
the claim of appellants, of Rs. 2.19 crores is below its enhanced
pecuniary jurisdiction–Held: Proceedings instituted before the
commencement of the 2019 Act would continue before the fora
corresponding to those under the 1986 Act and not be transferred
in terms of the pecuniary jurisdiction set for the fora established
under the 2019 Act– Something specific in terms of statutory
language either express words or words indicative of a necessary
intendment would have been required for mandating the transfer of
pending cases – Impugned order and the review order set aside –
National Commission to continue hearing the case instituted by the
appellants – General Clauses Act, 1897 – s.6 –
Interpretation of
Statutes – Harmonious construction.
Consumer Protection Act, 2019 – s.107 –Object and purpose
of the 2019 Act – Repeal of the Consumer Protection Act, 1986 –
Proceedings pending thereunder, if to be transferred – Intention of
legislature – Held: The legislature cannot be attributed to be remiss
in not explicitly providing for transfer of pending cases according
to the new pecuniary limits set up for the fora established by the
new law, were that to be its intention–It would be difficult to attribute
to Parliament, whose purpose in enacting the Act of 2019 was to
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protect and support consumers with an intent that would lead to
financial hardship, uncertainty and expense in the conduct of
consumer litigation – General Clauses Act, 1897 – s.6.
Interpretation of Statutes – Procedural Law – Change of forum
– Operation of, if retrospective – Held: A change in forum lies in
the realm of procedure – Amendments on matters of procedure are
retrospective, unless a contrary intention emerges from the statute –
Repeals or amendments that effect changes in forum would
ordinarily affect pending proceedings, unless a contrary intention
appears from the repealing or amending statute – Position of law
on change of forum, precedents analysed – Position of law clarified.
General Clauses Act – s.6 (c), (e) – Consumer Protection Act,
1986 – Held: Plain consequence of clause (c) and clause (e), when
read together is two-fold: first, the right which has accrued on the
date of the institution of the consumer complaint under the Act of
1986 is preserved; and second, the enforcement of the right through
the instrument of a legal proceeding or remedy will not be affected
by the repeal.
Words & Phrases – “entertain” – Consumer Protection Act,
2019 – Consumer Protection Act, 1986 – Held: Mere use of the
word “entertain” in defining jurisdiction is not sufficient to
counteract the overwhelming legislative intention to ensure
consumer welfare and deliberately not provide for a provision for
transfer of pending proceedings in the Act of 2019 or
u/s.106 of
the Act of 2019 which is a power to remove difficulties for a period
of two years after the commencement of the Act of 2019.
Allowing the appeals, the Court
HELD: 1.1 A change in forum lies in the realm of procedure.
Accordingly, in compliance with the tenets of statutory
interpretation applicable to procedural law, amendments on
matters of procedure are retrospective, unless a contrary
intention emerges from the statute. However, there was a
deviation by a two judge bench decision of this Court in Dhadi
Sahu, which overlooked the decision of a larger three judge bench
in New India Assurance and of a co-ordinate two judge bench in
Maria Cristina. The decision in Dhadi Sahu propounded a position
that “no litigant has any vested right in the matter of procedural
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law but where the question 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 becomes vested when the proceedings
are initiated in the tribunal.”In taking this view, the two judge
bench did not consider binding decisions. Dhadi Sahu failed to
consider that the saving of pending proceedings in Mohd. Idris
and Manujendra Dutt was a saving of vested rights of the litigants
that were being impacted by the repealing acts therein, and not
because a right to forum is accrued once proceedings have been
initiated. Thereafter, a line of decisions followed Dhadi Sahu, to
hold that a litigant has a crystallized right to a forum once
proceedings have been initiated. A litigant’s vested right
(including the right to an appeal) prior to the amendment or repeal
are undoubtedly saved, in addition to substantive rights envisaged
under Section 6 of the General Clauses Act. This protection does
not extend to pure matters of procedure. Repeals or amendments
that effect changes in forum would ordinarily affect pending
proceedings, unless a contrary intention appears from the
repealing or amending statute. [Para 53][158-H; 159-A-F]
Commissioner of Income Tax, Orissa v. Dhadi Sahu
1994 Suppl. (1) SCC 257 : [1992] 3 Suppl. SCR 168–
held per incuriam.
Mohd. Idris v. Sat Narain AIR 1966 SC 1499 :
[1966]
SCR 15; Manujendra Dutt v. Purnedu Prosad Roy
Chowdhury [1967] 1 SCR 475 – referred to.
1.2 Section 107(1) of the Act of 2019 repeals the Act of
1986. Section 107 (2) has saved “the previous operation” of any
repealed enactment or “anything duly done or suffered thereunder
to the extent that it is not inconsistent with the provisions of the
new legislation”. Finally, Section 107(3) indicates that the mention
of particular matters in sub-Section (2) will not prejudice or affect
the general application of Section 6 of the General Clauses Act.
Section 6 of the General Clauses Act provides governing
principles with regard to the impact of the repeal of a central
statute or regulation. These governing principles are to apply,
“unless a different intention appears”. Clause (c) of Section 6
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inter alia stipulates that a repeal would not affect “any right,
privilege, obligation or liability acquired, accrued or incurred
under any enactment so repealed”. The right to pursue a validly
instituted consumer complaint under the Act of 1986 is a right
which has accrued under the law which was repealed. Clause (e)
of Section 6 stipulates that the repeal will not affect, inter alia,
any “legal proceeding or remedy” in respect of any such right…as
aforesaid”. Any such legal proceedings may be continued as if
the repealing legislation had not been passed. Clause (c) of Section
6 has the effect of preserving the right which has accrued. Clause
(e) ensures that a legal proceeding which has been initiated to
protect or enforce “such right” will not be affected and that it can
be continued as if the repealing legislation has not been enacted.
The expression such a right in clause (e) evidently means the
right which has been adverted to in clause (c). The plain
consequence of clause (c) and clause (e), when read together is
two-fold: first, the right which has accrued on the date of the
institution of the consumer complaint under the Act of 1986 (the
repealing law) is preserved; and second, the enforcement of the
right through the instrument of a legal proceeding or remedy will
not be affected by the repeal. This position needs to be harmonized
with the principle that the right to a forum is not an accrued right.
While Section 6(e) of the General Clauses Act
protects the pending
legal proceedings for the enforcement of an accrued right from
the effect of a repeal, this does not mean that the legal proceedings
at a particular forum are saved from the effects from the repeal.
The question whether the pending legal proceedings are required
to be transferred to the newly created forum by virtue of the
repeal would still persist. This Court in New India Assurance and
Maria Christina has held that forum is a matter pertaining to
procedural law and therefore the litigant has to pursue the legal
proceedings at the forum created by the repealing act, unless a
contrary intention appears. This principle would also apply to
pending proceedings, asobserved in Ramesh Kumar Soni,
Hitendra Kumar Thakur and Sudhir G Angur. In this backdrop,
what is relevant to ascertain is whether a contrary intent to the
general rule of retrospectivity has been expressed under the Act
of 2019 to continue the proceedings at the older forum. [Paras
62-64][161-F, G-H; 162-A-H, 163-A-B]
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Hitendra Vishnu Thakur v. State of Maharashtra (1994)
4 SCC 602 : [1994] 1 Suppl. SCR 360; Sudhir G Angur
v. M Sanjeev (2006) 1 SCC 141 : [2005] 4 Suppl. SCR
851; Ramesh Kumar Soni v. State of Maharashtra
(2013) 14 SCC 696 : [2013] 1 SCR 1129 – relied on.
1.3 In considering the expression of intent in the repealing
enactment in the present case, it is apparent that there is no
express language indicating that all pending cases would stand
transferred to the fora created by the Act of 2019 by applying its
newly prescribed pecuniary limits. In deducing whether there is
a contrary intent, the legislative scheme and procedural history
may provide a relevant insight into the intention of the
legislature.The Act of 2019, as indicated by its long title, is enacted
to provide “for protection of the interests of consumers”. The
Statement of Objects and Reasons took note of the tardy disposal
of cases under the erstwhile legislation. Thus, the necessity of
inducing speed in disposal was to protect the rights and interests
of consumers. The Act of 2019 has taken note of the evolution of
consumer markets by the proliferation of products and services
in light of global supply chains, e-commerce and international
trade. New markets have provided a wider range of access to
consumers. But at the same time, consumers are vulnerable to
exploitation through unfair and unethical business practices. The
Act has sought to address “the
myriad and constantly emerging
vulnerabilities of the consumers”. The recurring theme in the
new legislation is the protection of consumers which is sought to
be strengthened by procedural interventions such as
strengthening class actions and introducing mediation as an
alternate forum of dispute resolution. [Paras 65, 66][163-B-F]
1.4 Something specific in terms of statutory language - either
express words or words indicative of a necessary intendment
would have been required for mandating the transfer of pending
cases. One can imagine the serious hardship that would be caused
to the consumers, if cases which have been already instituted
before the NCDRC were required to be transferred to the
SCDRCs as a result of the alteration of pecuniary limits by the
Act of 2019. A consumer who has engaged legal counsel at the
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headquarters of the NCDRC would have to undertake a fresh
round of legal representation before the SCDRC incurring
expense and engendering uncertainty in obtaining access to
justice. Likewise, where complaints have been instituted before
the SCDRC, a transfer of proceedings would require consumers
to obtain legal representation before the District Commission if
cases were to be transferred. Such a course of action would have
a detrimental impact on the rights of consumers. Many consumers
may not have the wherewithal or the resources to undertake a
fresh burden of finding legal counsel to represent them in the
new forum to which their cases would stand transferred. It would
be difficult to attribute to Parliament, whose purpose in enacting
the Act of 2019 was to protect and support consumers with an
intent that would lead to financial hardship, uncertainty and
expense in the conduct of consumer litigation. Ironically, the
objection which has been raised in the present case to the
continued exercise of jurisdiction by the NCDRC in regard to
the consumer complaint filed by the appellant is by the developer
who is the respondent herein. It is a developer who opposed the
continuation of the proceedings before the NCDRC on the ground
that under the new consumer legislation the pecuniary limits of
the jurisdiction exercisable by the NCDRC have been enhanced
and the complaint filed by the appellant which was validly instituted
under the erstwhile law should be
transferred to the SCDRC.
Such a course of action will result in thousands of cases being
transferred across the country, from the NCDRC to the SCDRCs
and from the SCDRCs to the District Commission. [Paras 67,
68][163-G-H; 164-A-E]
1.5 The data indicates that as on 31 October 2019, 21,216
cases were pending before the NCDRC and 1,25,156 cases were
pending before the SCDRC. Many of these cases would have to
be transferred if the view which the developer propounds is
upheld. This will seriously dislocate the interests of consumers
in a manner which defeats the object of the legislation, which is
to protect and promote their welfare. Clear words indicative of
either an express intent or an intent by necessary implication
would be necessary to achieve this result. The Act of 2019 contains
no such indication. The transitional provisions contained in
Sections 31, 45 and 56 expressly indicate that the adjudicatory
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personnel who were functioning as Members of the District
Commission, SCDRC and NCDRC under the erstwhile
legislation shall continue to hold office under the new legislation.
Such provisions are necessary because persons appointed to the
consumer fora under the Act of 1986 would have otherwise
demitted office on the repeal of the legislation. The legislature
cannot be attributed to be remiss in not explicitly providing for
transfer of pending cases according to the new pecuniary limits
set up for the fora established by the new law, were that to be its
intention. The omission, when contextualized against the statutory
scheme, portends a contrary intention to protect pending
proceedings through Section 107(2) of the Act of 2019. This
intention appears likely, particularly in light of previous decisions
of the NCDRC which had interpreted amendments that enhanced
pecuniary jurisdiction, with prospective effect. [Para 69][166-C-
G]
Southfield Paints and Chemicals Pvt. Ltd. v. New India
Assurance Co. Ltd. Consumer Case No.286 of 2000
(NCDRC); Premier Automobiles Ltd. v. Dr. Manoj Ram
achandran, Revision Petitions Nos. 400 to 402 of 1993
(NCDRC) – approved.
1.6 It is accepted, that in defining the jurisdiction of the
District Commission, Section 34 of the Act of 2019 entrusts the
jurisdiction to “entertain” complaints. A similar provision is
contained in Section 47 and Section 58 in regard to the SCDRC
and NCDRC. Sections
34, 47 and 58 similarly indicate that the
respective consumer fora can entertain complaints within the
pecuniary limits of their jurisdiction. These provisions will
undoubtedly apply to complaints which were instituted after the
Act of 2019 came into force. However, the mere use of the word
“entertain” in defining jurisdiction is not sufficient to counteract
the overwhelming legislative intention to ensure consumer welfare
and deliberately not provide for a provision for transfer of pending
proceedings in the Act of 2019 or under Section 106 of the Act of
2019 which is a power to remove difficulties for a period of two
years after the commencement of the Act of 2019. [Para 70][167-
C, F-G]
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1.7 Proceedings instituted before the commencement of
the Act of 2019 on 20 July 2020 would continue before the fora
corresponding to those under the Act of 1986 (the National
Commission, State Commissions and District Commissions) and
not be transferred in terms of the pecuniary jurisdiction set for
the fora established under the Act of 2019. Directions-
(i) The impugned judgment and order of the NCDRC dated
30 July 2020 and the review order dated 5 October 2020,
directing a previously instituted consumer case under the Act of
1986 to be filed before the appropriate forum in terms of the
pecuniary limits set under the Act of 2019, shall stand set aside;
(ii) The National Commission shall continue hearing the
consumer case instituted by the appellants;
(iii) All proceedings instituted before 20 July 2020 under
the Act of 1986 shall continue to be heard by the fora
corresponding to those designated under the Act of 1986 as
explained above and not be transferred in terms of the new
pecuniary limits established under the Act of 2019. [Para 71][168-
A-E]
New India Assurance Company Limited v. Smt Shanti
Mishra (1975) 2 SCC 840 : [1976] 2 SCR 266; Maria
Cristina De Souza v. Amria Zurana Pereira Pinto (1979)
1 SCC 92; Manish Kumar v. Union of India 2021 (1 )
 SCALE 646 – relied on.
Garikapati Veeraya v. N Subbiah Choudhry [1957] SCR
488; Nusli Neville Wadia v. Ivory Properties (2020) 6
SCC 557; Venugopala Reddiar v. Krishnaswami Reddiar,
alias Raja Chidambara
Reddiar AIR 1943 FC 24;
Colonial Sugar Refining Company Ltd. v. Irving (1905)
AC 369; Kiran Singh v. Chaman Paswan AIR 1954 SC
340 : [1955] SCR 117; V Dhanapal Chettiar v. Yesodai
Ammal (1979) 4 SCC 214 : [1980] 1 SCR 334; Shiv
Bhagwan Moti Ram Saroji v. Onkarmal Ishar Das
(1952) 54 Bom LR 330; Ranbir Yadav v. State of Bihar
(1995) 4 SCC 392 : [1995] 2 SCR 826; Kamlesh Kumar v.
State of Jharkhand (2013) 15 SCC 460 : [2013] 14
SCR 263; Ambalal Sarabhai Enterprises Ltd. v. Amrit
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Lal & Co. (2001) 8 SCC 397 : [2001] 2 Suppl. SCR
195; Himachal Pradesh State Electricity Regulatory
Commission v Himachal Pradesh State Electricity Board
(2014) 5 SCC 219 : [2013]11 SCR 915; Videocon
International Limited v. Securities and Exchange Board
of India (2015) 4 SCC 33 : [2015] 3 SCR 1; Securities
and Exchange of Board of India v. Classic Credit Limited
(2018) 13 SCC 1 : [2017] 13 SCR 559; Swapna
Mohanty v. State of Odisha (2018) 17 SCC 621; Om
Prakash Agarwal v. Vishan Dayal Rajpoot (2019) 14
SCC 526 : [2018] 13 SCR 47; Delhi High Court Bar
Association v. Court of Delhi ILR (1994) 1 Del 271;
Mahendra Panmal Duggad Jain v. Bhararilal Panmal
Duggad Jain (2008) 4 Mah LJ 803; Vallabhaneni
Lakshmana Swamy v. Valluru Basavaiah (2004) 5 ALD
807; Gobardhan Lal Soneja v. Binod Kumar Sinha
(1991) 2 PLJR 783; Y.B. Ramesh v. Varalakshmi (2010)
6 Kant LJ 43; Hindusthan Commercial Bank Ltd. v.
Punnu Sahu (Dead) Through Legal Representatives
(1971) 3 SCC 124; State of Rajasthan v. Mangilal
Pindwal (1996) 5 SCC 60 : [1996] 3 Suppl. SCR 98–
referred to.
Case Law Reference
[1957] SCR 488
referred to
Para 12
(2020) 6 SCC 557
referred to
Para 13(iii)
[1955] SCR 117
referred to
Para 16
[1966] SCR 15
referred to
Para 19
[1967] 1 SCR 475
referred to
Para 21
[1980] 1 SCR  334 
referred to
Para 22
[1976] 2 SCR  266
relied on
Para 23
(1979) 1 SCC 92
relied on
Para 24
[1994] 1 Suppl.  SCR 360
relied on
Para 26
[2005] 4 Suppl. SCR
851
relied on
Para 26
[2013] 1 SCR 1129
relied on
Para 28

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[1992] 3 Suppl. SCR 168
held per incuriam
Para 29
[1995] 2 SCR  826
referred to
Para 30
[2013] 14 SCR 263
referred to
Para 30
[2001] 2 Suppl. SCR 195
referred to
Para 31
[2013] 11 SCR 915
referred to
Para 34
[2015] 3 SCR 1
referred to
Para 36
[2017] 13 SCR 559
referred to
Para 39
(2018) 17 SCC 621
referred to
Para 45
[2018] 13 SCR 47
referred to
Para 46
[1996] 3 Suppl. SCR 98
referred to
Para 62
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3766-
3767 of 2020.
From the Order dated 30.07.2020 and 05.10.2020 of the National
Consumer Disputes Redressal Commission at New Delhi in Consumer
Complaint No.566 of 2020 and in Review Application No.124 of 2020
respectively.
P. Vinay Kumar, Adv. for the Appellants.
Krishnan Venugopal, Sr. Adv., Vishal Gupta, Sumeet Sharma,
Divyanshu Gupta, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
Index
A.
Background
B.
Submissions
B.1.
Submissions of the appellants
B.2.
Submissions of the respondent
C.
Position of law on change of forum: An analysis of precedent
C.1.
Venugopala Reddiar (1943- Federal Court 3 judges)
C.2.
Kiran Singh v. Chaman Paswan (1954- Supreme
Court 4 judges)
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C.3.
Garikapati (1957- Supreme Court Constitution
Bench)
C.4.
Mohd. Idris (1965- Supreme Court Constitution
Bench)
C.5.
Manujendra Dutt (1966- Supreme Court 2 judges)
C.6.
New India Assurance (1975- Supreme Court 3
judges)
C.7.
Maria Cristina (1978- Supreme Court 2 judges)
C.8.
Hitendra Vishnu Thakur (1994- Supreme Court 2
judges)
C.9.
Sudhir G Angur (2005- Supreme Court 3 judges)
C.10. Ramesh Kumar Soni (2013- Supreme Court 2 judges)
C.11. Dhadi Sahu (1992- Supreme Court 2 judges)
C.12. Ambalal Sarabhai (2001- Supreme Court 2 judges)
C.13. HP State Electricity (2013- Supreme Court 2 judges)
C.14. Videocon International (2015- Supreme Court 2
judges)
C.15. SEBI v. Classic Credit (2018- Supreme Court 2
judges)
C.16. Swapna Mohanty (2018- Supreme Court 2 judges)
C.17. Om Prakash Agarwal (2018- Supreme Court 2
judges)
C.18. Delhi High Court Bar Association (1993- Delhi HC-
DB)
C.19. Mahendra Jain (2008- Bombay HC-DB)
C.20. Vallabhaneni (2004- Andhra Pradesh HC- 5 judges)
C.21. Gobardhan Lal Soneja (1991-Patna HC-FB)
C.22. Y.B. Ramesh (2010-Karnataka HC-SJ)
C.23. Conclusion on the position of law
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107
D.
Legislative Scheme of the jurisdictional provisions
E.
Legislative intendment underlying Section 107 of the Act
of 2019
F.
Summation
A Background
1. On being enacted by Parliament, the Consumer Protection Act
20191 was published in the Gazette of India on 9 August 20192. By S.O.
2351(E) dated 15 July 2020, the material provisions of the Act of 2019
were notified to come into force on 20 July 2020. By S.O. 2421(E)
dated 23 July 2020 several other provisions were brought into force,
with effect from 24 July 2020. The appellants instituted a consumer
case3 before the National Consumer Disputes Redressal Commission4
on 18 June 2020. The consumer case was instituted under the provisions
of the erstwhile legislation, the Consumer Protection Act 19865. The
NCDRC by its order dated 30 July 2020 dismissed the consumer case
on the ground that after the enforcement of the Act of 2019, its pecuniary
jurisdiction has been enhanced from rupees one crore to rupees ten
crores. The appellants’ review petition was also dismissed by the NCDRC
on 5 October 2020. In the present case, the claim of Rs. 2.19 crores is
below the enhanced pecuniary jurisdiction of the NCDRC.
2. The complainants in the consumer case are in appeal.
3. The issue which arises in the appeals is whether a complaint
which was filed and registered under the Act of 1986, before the new
Act of 2019 came into force, has to be entertained under the provisions
of the erstwhile legislation. In anticipation
of the enforcement of the Act
of 2019, an administrative notice was issued by the NCDRC on 17 July
2020 to allow the functioning of its registry for fresh filings on 18 July
2020, since the new law was to come into force on 20 July 2020. The
appellants are also aggrieved by the fact that contrary to the position
taken in its case, other Benches of the NCDRC have admitted complaints
instituted before 20 July 2020. This grievance apart, the issue which
1 “Act of 2019”
2 The Act was published in the Gazette of India Extraordinary, Part II, Section 1, No. 54
dated 9 August 2019
3 Consumer Case no.566 of 2020 (NCDRC)
4 “NCDRC”
5 “Act of 1986”
NEENA ANEJA & ANR. v. JAI PRAKASH ASSOCIATES LTD.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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arises in the appeals would turn upon a construction of Section 107 of
the Act of 2019, among other provisions of the new legislation, and its
interplay with Section 6 of the General Clauses Act 18976. The analysis
of the Court, despite the new legislation, will not proceed on a clean
slate for there is precedent which holds the field. That both sides rely
upon the line of precedent in the unfolding of their cases makes the
interpretational task intricate. Our task will be to bring a solution that has
a sense of cohesion, while harmonizing precedential learning with justice.
4. A brief narration of the facts would assist with context. Upon
the payment of an advance of Rs.3.50 lacs on 25 November 2011 by the
appellants, the respondent provisionally allotted a residential unit in a
real-estate project described as KRESCENT Homes admeasuring a
super built area of 114.27 square metres which was being developed by
the respondent at Jaypee Greens, Noida. The total consideration was
fixed at Rs.56.45 lacs and possession was intended to be conveyed within
a period of 42 months from the execution of the agreement of the
provisional allotment letter. The appellants have stated that between
December 2011 till date, they have paid an amount of Rs. 53.84 lacs out
of the total consideration of Rs.56.45 lacs.
5. On 13 June 2017 and 27 April 2020, the appellant sought a
refund of the consideration together with interest at 18 per
cent. On 18
June 2020, the appellants instituted a consumer complaint before the
NCDRC for refund with interest. The consumer complaint has been
dismissed by an order dated 30 July 2020 for want of pecuniary
jurisdiction. A single member Bench of the NCDRC held that following
the enforcement of the Act of 2019 on 20 July 2020, the limits of its
pecuniary jurisdiction stands enhanced from rupees one crore to rupees
ten crores and the complaint instituted by the appellants is consequently
not maintainable. The appellants instituted a petition seeking a review of
the order. The review petition was dismissed on 5 October 2020 leading
to the institution of the appeal before this Court.
6. Section 21 of the Act of 1986 provided for the jurisdiction of
the NCDRC:
“Jurisdiction of the National Commission. — Subject to the
other provisions of this Act, the National Commission shall have
jurisdiction—
6 “General Clauses Act”
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(a)
to entertain—
(i)
complaints where the value of the goods or services and
compensation, if any, claimed exceeds rupees one crore;
and
(ii)
appeals against the orders of any State Commission; and
(b)
to call for the records and pass appropriate orders in any
consumer dispute which is pending before or has been
decided by any State Commission where it appears to the
National Commission that such State Commission has
exercised a jurisdiction not vested in it by law, or has failed
to exercise a jurisdiction so vested, or has acted in the
exercise of its jurisdiction illegally or with material
irregularity.” (emphasis supplied)
7. Under the Act of 1986, the enhancement of the pecuniary limits
of the jurisdiction of the NCDRC to rupees one crore came in substitution
of rupees twenty lacs with effect from 15 March 2003 as a result of Act
62 of 2002. Earlier the limit of rupees twenty lacs was substituted by
Act 50 of 1993 for rupees ten lacs with effect from 18 June 1993.
8. Under Section 11, the jurisdiction of the District Commission to
entertain original complaints was rupees twenty lacs7. Under Section
17, the State Consumer Disputes Redressal Commission8 had jurisdiction
to entertain complaints where the value of the goods and services or
compensation if any claimed exceeds rupees twenty lacs but does not
exceed rupees one crore9.
9. The Act of 2019 was enacted by Parliament taking into account
the experience which was gained in the administration of
the earlier
legislation and to meet new developments in the market place for products
and services. The Statement of Objects and Reasons accompanying the
introduction of the Bill in Parliament elucidates the rationale for the new
law:
7 The pecuniary limits were enhanced from rupees one lac to rupees five lacs by Act 50
of 1983 with effect from 18 June 1993. The limits were enhanced from rupees five lacs
to rupees twenty lacs by Act 62 of 2002 with effect from 15 March 2003.
8 “SCDRC”
9 By Act 62 of 2002, these limits had been enhanced from the previous limits of rupees
five lacs – rupees 20 lacs
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“Statement of Objects and Reasons
The Consumer Protection Act, 1986 (68 of 1986) was enacted to
provide for better protection of the interests of consumers and for
the purpose of making provision for establishment of consumer
protection councils and other authorities for the settlement of
consumer disputes, etc. Although, the working of the consumer
dispute redressal agencies has served the purpose to a considerable
extent under the said Act, the disposal of cases has been fast due to
various constraints. Several shortcomings have been noticed while
administering the various provisions of the said Act.
2. Consumer markets for goods and services have undergone
drastic transformation since the enactment of the Consumer
Protection Act in 1986. The modern market place contains a
plethora of products and services. The emergence of global supply
chains, rise in international trade and the rapid development of e-
commerce have led to new delivery systems for goods and services
and have provided new options and opportunities for consumers.
Equally, this has rendered the consumer vulnerable to new forms
of unfair trade and unethical business practices. Misleading
advertisements, tele-marketing, multi-level marketing, direct selling
and e-commerce pose new challenges to consumer protection
and will require appropriate and swift executive interventions to
prevent consumer detriment. Therefore, it has become inevitable
to amend
the Act to address the myriad and constantly emerging
vulnerabilities of the consumers. In view of this, it is proposed to
repeal and re-enact the Act.
3. Accordingly, a Bill, namely, the Consumer Protection Bill, 2018,
was introduced in Lok Sabha on the 5th January, 2018 and was
passed by that House on the 20th December, 2018. While the Bill
was pending consideration in Rajya Sabha, the Sixteenth Lok Sabha
was dissolved and the Bill got lapsed. Hence, the present Bill,
namely, the Consumer Protection Bill, 2019.
4. The proposed Bill provides for the establishment of an executive
agency to be known as the Central Consumer Protection Authority
(CCPA) to promote, protect and enforce the rights of consumers;
make interventions when necessary to prevent consumer detriment
arising from unfair trade practices and to initiate class action
including enforcing recall, refund and return of products, etc. This
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fills an institutional void in the regulatory regime extant. Currently,
the task of prevention of or acting against unfair trade practices is
not vested in any authority. This has been provided in a manner
that the role envisaged for the CCPA complements that of the
sector regulators and duplication, overlap or potential conflict is
avoided.
5. The Bill envisages provisions for product liability action on
account of harm caused to consumers due to a defective product
or by deficiency in services. Further, provision of “Mediation” as
an Alternate Dispute Resolution Mechanism has also been
provided.
6. The Bill provides for several provision aimed at simplifying the
consumer dispute adjudication process of the Consumer Disputes
Redressal Agencies, inter alia relating to enhancing the pecuniary
jurisdiction of the Consumer Disputes Redressal Agencies;
increasing minimum number of Members in the State Consumer
Disputes Redressal Commissions and provisions for consumers
to file complaints electronically, etc.
7. The Bill seeks to achieve the above objectives.”
10. Section 28(1) provides for the establishment of a District
Consumer Disputes Redressal Commission10 in every district, subject to
its establishment by a notification of the State Government11. The
jurisdiction of the District Commission in terms of Section 34 is to
entertain complaints where the value of goods and services paid as
consideration does not exceed one crore rupees. Section 42 provides
for the establishment of a SCDRC in each State. The pecuniary limits
of the original jurisdiction of the SCDRC under Section 47(1)(a) is to
entertain original complaints where the value of goods and services
paid as consideration exceeds rupees one crore but does not exceed
10 “District Commission”
11 28. (1) The State Government shall, by notification, establish a District Consumer
Disputes Redressal Commission, to be known as the District Commission, in each
district of the State: Provided that the State Government may, if it deems fit, establish
more than one District Commission in a district.
(2) Each District Commission shall consist of—
(a) a President; and
(b) not less than two and not more than such number of members as may be prescribed,
in consultation with the Central Government.
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rupees ten crores. Section 53 provides for the establishment of the
NCDRC. Section 58(1)(a) contains the pecuniary limits of the
jurisdiction of the NCDRC, which in the case of original complaints is
where the value of goods and services paid as consideration exceeds
rupees ten crores.
11. Section 107 contains the repeal and savings provision, which
is in the following terms:
“107. Repeal and savings-
(1) The Consumer Protection Act, 1986 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken
or purported to have been done or taken under the Act hereby
repealed 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.
(3) The mention of particular matters in sub-section (2) shall not
be held to prejudice or affect the general application of section 6
of the General Clauses Act, 1897 with regard to the effect of
repeal.”
In terms of sub-section (1) of Section 107, the Act of 1986 stands
repealed. Sub- section (2) is prefaced with a non obstante provision.
Under sub-section (2) anything done or any action taken or purported
to have been done or taken under the repealed legislation is deemed to
have been done or taken under the corresponding provision of the new
legislation, insofar as it is not inconsistent with the latter provisions.
Sub-section (3) of Section 107 stipulates that the
specification of the
matters contained in sub-section (2) does not prejudice or affect the
general application of Section 6 of the General Clauses Act (with regard
to the effect of repeal). Having repealed, the Act of 1986, the new
legislation has also made transitional provisions in Section 3112, Section
4513 and
12 31. Transitional provision: Any person appointed as President or, as the case may
be, a member of the District Commission immediately before the commencement of
this Act shall hold office as such as President or, as the case may be, as member till the
completion of his term for which he has been appointed.
13 45. Transitional provision: Any person appointed as President or, as the case may
be, a member of the State Commission immediately before the commencement of this
Act shall hold office as such, as President or member, as the case may be, till the
completion of his term.
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Section 5614 for the continuance of persons appointed as members
of the District Commission, the SCDRC and the NCDRC under the
erstwhile legislation.
B Submissions
B.1 Submissions of the appellants
12. Mr P Vinay Kumar, learned Counsel appearing on behalf of
the appellants urged the following submissions in support of the appeal:
(i)
Section 107(3) of the Act of 2019 gives full effect to the
provisions of Section 6 of the General Clauses Act, which
means that nothing in the repeal of the earlier legislation
will affect pending proceedings which may continue as if
the new legislation has not been enacted. Under the Act of
2019, the jurisdiction has been conferred on the SCDRC to
hear complaints under the new Act. In order to vest the
SCDRC with jurisdiction to hear complaints which were
instituted before the NCDRC under the old Act, a specific
provision for transferring the proceedings was required-
which has not been provided. This is not the case where a
statute has been amended by enhancement of pecuniary
jurisdiction but involves the repeal of an old statute in which
event a provision for transferring the cases to the new forum
is essential;
(ii)
The new Act of 2019 affects substantive and vested rights
and must necessarily be prospective; and
(iii)
The new legislation does not contain any provision for its
retrospective operation.
A. Elaborating on the first limb of submissions, learned counsel
urged that in several decisions of this Court, Section 6
of the
General Clauses Act was applied by the Court in order to
save existing proceedings. In the present case, the law makers
have specifically incorporated the applicability of Section 6 of
the General Clauses Act, by making a provision in Section
14 56. Transitional provision: The President and every other member appointed
immediately before the commencement of section 177 of the Finance Act, 2017 shall
continue to be governed by the provisions of the Consumer Protection Act, 1986 and
the rules made thereunder as if this Act had not come into force.
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107(3) of the Act of 2019. The question of examining the
existence of vested rights arises only where there is a doubt
over a savings provision or when Section 6 has not been made
specifically applicable. In such cases, the Court has to
scrutinize whether a vested right had arisen under the repealed
statute, in which event the pending proceedings would be
saved. However, where Section 6 is applicable, it covers a
wider field so as to save not only vested rights but all rights
covered by clauses (a) to (e) of Section 6.
B. The next limb of the submissions is that substantial changes
have been made in the provisions for appeal contained in the
Act of 2019. For instance, the second proviso to Section 19 of
the Act of 1986 required an aggrieved person to either deposit
50 per cent of the amount awarded by the SCDRC or Rs
25,000, whichever is less. However, in the Act of 2019, the
second proviso to Section 51(1) stipulates that an appeal shall
not be entertained by the NCDRC unless the appellant has
deposited 50 per cent of the amount required under the order
of the SCDRC. This provision substantially affects the vested
right of a litigant and is not merely procedural in nature. In
Garikapati Veeraya v. N Subbiah Choudhry15, the
Constitution Bench of this Court has held that a right of appeal
is not a mere matter of procedure but is a substantive right
and that the institution of a suit carries with it the implication
that all rights of appeal then in force are preserved. Such a
vested right can only be taken away either expressly or by
necessary implication. Hence, the relevant date is the date of
the institution of the suit and not when the case comes for
hearing or for decision. In the present case, the earlier
legislation was in force when the complaint was filed and hence
the rights and obligations which accrued on that date would
stand saved. As a result of the Act of 2019, a statutory appeal
which was provided to the complainant to the Supreme Court
against an order of the NCDRC has been taken away by
stipulating that matters which will lie before the SCDRC will
only be amenable to appeal before the NCDRC. From the
thirty one Sections in the Act of 1986, the Act of 2019 has
15 “Garikapati”; 1957 SCR 488
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legislated for one hundred and seven Sections which in itself
indicates that the change is not merely procedural, but
substantial.
C. The third limb of submissions is that there is no provision for
transfer of pending cases in the new Act of 2019. Under Section
47 of the Act of 2019 of the new legislation, the jurisdiction of
the SCDRC is to entertain complaints under the Act of 2019
above a certain value. The jurisdiction to entertain complaints
under the erstwhile legislation could only have been conferred
by an express statutory provision that transferred complaints
filed under the old Act from the NCDRC to the SCDRC. Any
direction for the transfer of existing cases would entail
disturbing thousands of cases pending before the NCDRC
and SCDRCs across the country. This would cause serious
hardship and prejudice to consumers and a waste of judicial
time invested till date. A similar question was dealt with by the
NCDRC in its Judgment 8 April 2011 in Southfield Paints
and Chemicals Pvt. Ltd. v. New India Assurance Co.
Ltd.16 which construed Amending Act 62 of 2002 by which
the pecuniary limits of jurisdiction were enhanced with effect
from 15 March 2003. Relying on the earlier decision in
Premier Automobiles Ltd. v. Dr Manoj Ramachandran17,
the NCDRC held that the amendments enhancing the pecuniary
jurisdiction were prospective in nature. The legislature must
be considered to be aware of this precedent.
D. Finally, it was urged that the Act of 2019 came
into force on
July 2020 while the complaint in the present case was
instituted before the NCDRC on 18 June 2020. The dismissal
of the complaint for want of pecuniary jurisdiction is in
contravention of the administrative notice dated 17 July 2020
of the NCDRC. The administrative directions were complied
with by other Benches of the NCDRC which have admitted
a number of complaints instituted under the Consumer
Protection Act 1986.
E. In sum and substance, therefore, it has been urged that:
16 Consumer Case No. 286 of 2000 (NCDRC)
17 Revision Petitions Nos 400 to 402 of 1993 (NCDRC)
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(i)
Section 107 of the Act of 2019 read with Section 6 of the
General Clauses Act saves pending legal proceedings; hence
the complaint which was filed before the enforcement of
the new legislation should be allowed to proceed before the
NCDRC under the Act of 1986;
(ii)
The relevant date is the date of the institution of the
complaint and not the date when the matter is heard or
decided;
(iii)
The new legislation affects substantive rights of appeal to
the NCDRC by making a deposit of 50 per cent of the
decretal amount mandatory;
(iv)
In the absence of an express provision, the new legislation
must operate prospectively; and
(v)
In the absence of a provision for transfer of pending cases,
complaints which were instituted prior to the enforcement
of the Act of 2019 should not be disturbed.
B.2 Submissions of the respondent
13.
A. Mr Krishnan Venugopal, learned Senior Counsel appearing on
behalf of the respondent, supported the reasoning of the NCDRC and
urged the following submissions:
(i)
The Statement of Objects and Reasons underlying the
enactment of the Act of 2019 indicates that:
(a)
The new legislation has been enacted to strengthen
the remedies available to consumers;
(b)
The legislature was conscious of the delays in the
disposal of cases under the erstwhile legislation; and
(c)
While enacting the new law, a conscious decision
was taken to enhance the pecuniary limits of the
jurisdiction of the District
Commission, SCDRC and
NCDRC to ensure that the large proportion of cases
can be resolved in the fora situated close to the
complainants;
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(ii)
The purpose of the Act of 2019, as envisaged in the
Statement of Objects and Reasons, is further emphasized
under Section 2(9)(iv) of the Act of 2019 under which
consumer rights have been defined to include “the right to
be heard and be assured that consumer interests will receive
due consideration at appropriate fora”;
(iii)
Sections 28, 42 and 53 provide for the establishment of the
District Commission, SCDRC and NCDRC. Under Section
58(1)(a), the NCDRC is empowered to entertain complaints
where the value of goods or services paid as consideration
exceeds rupees ten crores. The expression ‘entertain’ has
been construed in a broad and comprehensive sense to mean
‘to adjudicate upon’ in the decision of this Court in Nusli
Neville Wadia v. Ivory Properties18;
(iv)
The basic principle of law is that when a statute is repealed,
everything stands obliterated. Section 107(2) of the Act of
2019 covers concluded transactions while Section 107(3)
preserves the application of Section 6 of the General Clauses
Act. Section 6 is prefaced with the words “unless a different
intention appears”. Clause (c) of Section 6 is substantive in
nature while clause (e) applies to pending proceedings. The
precedents of this Court would indicate that Section 6(e)
has been interpreted as extending to substantive proceedings,
but a pure matter of procedure is excluded. A change of
forum, like matters of evidence and civil procedure is a
pure matter of procedure. Section 6(e)
would hence not be
applicable where a new legislation results in a change of
forum;
(v)
Where a law takes away a right of action or appeal, it is
treated as a substantive alteration and does not apply to
pending actions. A mere change in forum is to be
distinguished from a substantive alteration. The Act of 2019
is a law which repeals the earlier legislation and created a
new hierarchy of courts and it must, consequentially, be
treated as retroactive;
18 “Nusli Neville”; (2020) 6 SCC 557: at paras 35 and 36
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(vi)
The right of appeal is a substantive right which accrues at
the date of the institution of a proceeding. An amendment
taking away this right imposes a substantive alteration and
is therefore construed to be prospective. This principle does
not apply where there is only a change of forum;
(vii)
The Act of 2019 does not abrogate existing rights. On the
contrary, it preserves and provides for an additional right of
appeal where, as a result of the legislation, a complaint which
could earlier be filed before the NCDRC has to be filed
before the SCDRC. A complaint before the SCDRC would
have to be instituted before the District Commission. The
right to appeal is therefore strengthened and not truncated;
(viii) Section 34 empowers the District Commission with
jurisdiction “to entertain complaints” and a similar provision
has been made in Section 47(1)(a) pertaining to the SCDRC
and Section 58(1)(a) pertaining to the NCDRC. This
expression emphasizes that it applies at every point of time
when a matter is entertained for adjudication or for
consideration on merits;
(ix)
The Act of 2019 abolished the old hierarchy of fora under
the Act of 1986 and established adjudicatory fora afresh.
The case pending before one of the fora governed by the
Act of 1986 ceases to be pending because the Act of 2019
has, by its repeal, abolished the existing adjudicatory bodies.
Sections 28, 42 and 53 established new adjudicatory bodies
afresh under the Act of 2019. This is evident from the
provisions of Section 31, 45 and 56 under which judicial
personnel of the erstwhile fora were permitted to continue
under the Act of 2019;
(x)
The Act of 2019 indicates a contrary intent within the
meaning of Section 6 of the General Clauses Act; and
(xi)
The principle that a repeal of a statute obliterates the effects
and consequence of the earlier legislation, is subject to three
exceptions:
(a)
Concluded transactions continue to be governed by
the old law;
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(b)
Where a right of appeal or of action is abrogated or
in a situation where clogs are imposed on the right,
such rights continue to be preserved notwithstanding
the repeal; and
(c)
Where a substantive liability or a right is imposed or
conferred, this would be treated as prospective. On
the other hand, the consistent view under Section 6
(e) is that it does not apply to a mere change of forum.
B. The sum and substance of the submissions which were urged
by Mr Krishnan Venugopal, learned Senior Counsel is that where a law
provides for a change in forum, this is treated as a matter of procedure
and not of substance. The Act of 2019 is not a legislation merely enhancing
the limits of the pecuniary jurisdiction by an amendment to the Act of
1986. On the contrary, the Act of 2019 is a completely new law, which
abolished the hierarchy of tribunals under the erstwhile Act of 1986 and
created a new adjudicatory hierarchy. As a matter of interpretation, the
Act of 2019 clearly indicates an intention to the contrary as a result of
which pending proceedings will not continue before the forums which
existed under the Act of 1986. In other words, the limits of pecuniary
jurisdiction which have been defined under the Act of 2019 will apply to
all pending actions and a transfer of existing cases would be required in
those cases where the jurisdiction to entertain the complaint lies within
the pecuniary limits of the newly established forum. In support of his
submissions, Mr Venugopal relied on a line of precedent which would be
discussed while analyzing the rival contentions.
14. The rival submissions are now considered.
C Position of law on change of forum: An analysis of
precedent
C.1 Venugopala Reddiar (1943- Federal Court 3 judges)
15. The discussion on the law begins with the decision of the
Federal Court in Venugopala Reddiar v. Krishnaswami Reddiar, alias
Raja Chidambara Reddiar19 which considered the validity of a pending
proceeding when the court had lost territorial jurisdiction. Before 1937,
when Burma was a part of British India, it was permissible under Section
17 of the Civil Procedure Code to include immovable property situated
19 AIR 1943 FC 24
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in Burma as a part of the subject matter of a suit. The principal respondent
instituted a suit for the recovery of certain properties. A large portion of
these properties was situated in Rangoon, Burma. The suit had been
instituted before the Trichinopoly Court. After Burma ceased to be a
part of India on 1 April 1937, the contesting defendants objected to the
jurisdiction of the Court to deal with the Burma property. The Trial Judge
upheld the objection that it no longer had jurisdiction over property situated
in Burma. This was reversed by a Division Bench of the Madras High
Court. The Division Bench held that Article 10 of the Government of
India (Adaptation of Indian Laws) Order 1937 provided that the powers
exercisable by any authority, which in the view of the High Court would
include a Court, before the separation came into force should continue
to be exercised until a contrary provision was passed by the legislature.
The High Court also held that a right to continue a duly instituted suit
was in the nature of a vested right which cannot be taken away except
by a clear legislative intent. Justice Srinivasa Varadachariar summed up
the legal principle at page 48 by observing:
“..The true position, as we have already stated, is not whether
there is an express provision permitting the continuance of pending
proceedings, but whether there is any clear indication against the
continuance of pending proceedings to
their normal termination.”
In an earlier part of the judgment, the Court noted that paragraph
(e) of sub- Section (2) of Section 38 of the Interpretation Act, 1889
provides that any legal proceedings in respect of any right acquired or
accrued under the repealed enactment may “continue as if the repealing
Act had not been passed”. Noting that the interpretation of this paragraph
is not free from difficulty, Justice Varadachariar observed that the view
has sometimes been taken that what is saved is a substantive right acquired
under the repealed enactment and that the paragraph cannot be invoked
in cases where the substantive right is not taken away by the repealing
Act but the mere forum for, or the method of enforcing it is changed. On
the other hand, the Court noted, it has been maintained that a right to
obtain a relief in a suit pending at the time when the repealing enactment
comes into operation is itself in the nature of a substantive right. Of the
three grounds which had weighed with the High Court in affirming the
jurisdiction of the Trial Court, the Federal Court rested its decision on
the principle contained in the ruling of the Privy Council in Colonial
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Sugar Refining Company Ltd. v. Irving20 which held that a right to
appeal is a substantive right whose amendment would generally be
prospective:
“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
intendment. And therefore the only question is: was the appeal to
His Majesty in Council a right vested in the appellants at the date
of the passing of the Act, or was it a mere matter of procedure?
It seems to Their Lordships that the question does not admit of
doubt. To deprive a suitor in a pending action of an appeal
to a superior tribunal which belonged to him as of right is a
very different thing from regulating procedure. In principle,
Their Lordships see no difference between abolishing an
appeal altogether and transferring the appeal to a new
tribunal. In either case there is an interference with existing
rights contrary to the well-known general principle that
statutes are not to be held to act retrospectively unless a
clear
intention to that effect is manifested.” (emphasis
supplied)
The principle enunciated by the Privy Council in Colonial Sugar
Refining was reiterated.
C.2 Kiran Singh v. Chaman Paswan (1954- Supreme Court
4 judges)
16. In Kiran Singh v. Chaman Paswan21, the appellant’s suit
for recovery of land on the basis of the eviction of the defendants was
dismissed by the Subordinate Judge which was affirmed in appeal.
When the matter was taken up in second appeal to the Punjab High
Court, an objection to the valuation of the plaint was raised by the
20 (1905) AC 369
21 AIR 1954 SC 340
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stamp reporter and the correct valuation was determined on which the
plaintiffs paid additional court fees. On the revised valuation, the
plaintiffs raised the plea that the appeal from the decree of the
Subordinate Judge would not lie to the District Court but to the High
Court and that accordingly the second appeal should be heard as a
first appeal against the judgment of the District Court. Following the
Full Bench decision, the High Court held that the appeal to the District
Court was competent and its decision should be reversed only if
prejudice were shown on merits. In appeal, this Court noted that on a
plaint valuation, the appeal would lie to the District Court whereas on
the valuation as determined by the High Court, it was held that it was
competent to entertain the appeal. On this basis, it was argued the
decision of the District Court was a nullity. This Court rejected the
contention that the decree was a nullity, holding that an objection to the
pecuniary jurisdiction shall not be entertained by an Appellate Court
unless there has been a consequent failure of justice. Dealing with the
argument that a prejudice had been caused to the appellants in that by
reason of the undervaluation, their appeal was heard by a Court of
inferior jurisdiction while they were entitled to a first appeal before the
High Court, this Court held:
“11. It is next contended that even treating the matter as governed
by Section 11
of the Suits Valuation Act, there was prejudice to
the appellants, in that by reason of the undervaluation, their appeal
was heard by a court of inferior jurisdiction, while they were
entitled to a hearing by the High Court on the facts. It was
argued that the right of appeal was a valuable one, and that
deprivation of the right of the appellants to appeal to the High
Court on facts must therefore be held, without more, to constitute
prejudice. This argument proceeds on a misconception. The right
of appeal is no doubt a substantive right, and its
deprivation is a serious prejudice; but the appellants have
not been deprived of the right of appeal against the
judgment of the Subordinate Court. The law does provide
an appeal against that judgment to the District Court, and
the plaintiffs have exercised that right. Indeed, the
undervaluation has enlarged the appellants’ right of appeal,
because while they would have had only a right of one
appeal and that to the High Court if the suit had been
correctly valued, by reason of the undervaluation they
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obtained right to two appeals, one to the District Court
and another to the High Court. The complaint of the
appellants really is not that they had been deprived of a
right of appeal against the judgment of the Subordinate
Court, which they have not been, but that an appeal on
the facts against that judgment was heard by the District
Court and not by the High Court. This objection therefore
amounts to this that a change in the forum of appeal is by
itself a matter of prejudice for the purpose of Section 11
of the Suits Valuation Act.
……….
15. So far, the definition of “prejudice” has been negative
in terms — that it cannot be mere change of forum or mere
error in the decision on the merits. What then is positively
prejudice for the purpose of Section 11? That is a question which
has agitated courts in India ever since the enactment of the section.
It has been suggested that if there was no proper hearing of the
suit or appeal and that had resulted in injustice, that would be
prejudice within Section 11 of the Suits Valuation Act. Another
instance of prejudice is when a suit which ought to have been
filed as an original suit is filed as a result of undervaluation on the
small cause side. The procedure for trial of suits in the Small
Cause Court is summary; there are no provisions for discovery or
inspection; evidence is not recorded in extenso, and there is no
right of appeal against its decision. The defendant thus loses the
benefit of an elaborate
procedure and a right of appeal which he
would have had if the suit had been filed on the original side. It
can be said in such a case that the disposal of the suit by the
Court of Small Causes has prejudicially affected the merits of
the case. No purpose, however, is served by attempting to
enumerate exhaustively all possible cases of prejudice which
might come under Section 11 of the Suits Valuation Act. The
jurisdiction that is conferred on appellate courts under that section
is an equitable one, to be exercised when there has been an
erroneous assumption of jurisdiction by a subordinate court as a
result of overvaluation or under valuation and a consequential
failure of justice. It is neither possible nor even desirable to define
such a jurisdiction closely, or confine it within stated bounds. It
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can only be predicated of it that it is in the nature of a revisional
jurisdiction to be exercised with caution and for the ends of justice,
whenever the facts and situations call for it. Whether there has
been prejudice or not is, accordingly, a matter to be determined
on the facts of each case.”
(emphasis supplied)
17. Therefore, this court made a clear distinction between
amendments impacting a substantive right of appeal and amendments
which merely alter the forum where such an appeal could be urged. The
latter could not be construed as having caused a prejudice as it was not
substantive in nature.
C.3 Garikapati (1957- Supreme Court Constitution Bench)
18. In Garikapati (supra), Chief Justice S R Das speaking for
the Constitution Bench, formulated the legal principles which govern
this area of interpretative jurisprudence. The decision in Garikapati
(supra) is the locus classicus on subject of the substantive right of appeal
vis-à-vis pending proceedings. The five principles which were enunciated
in paragraph 23 of the decision are extracted below:
“23….:
(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 thereto
till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter
the superior court accrues to the litigant and exists as on and from
the date the lis commences and although it may be actually
exercised when the adverse judgment is pronounced such right is
to be governed by the law prevailing at the date of the institution
of the suit or proceeding and not by the law that prevails at the
date of its decision or at the date of the filing of the appeal.
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(v) This vested right of appeal can be taken away only by a
subsequent enactment, if it so provides expressly or by necessary
intendment and not otherwise.”
(emphasis supplied)
The Constitution Bench clarified that the right of appeal is a vested
right which cannot be taken away, absent a statutory enactment to the
effect. It was also clarified that the right to appeal would vest, once the
suit is instituted.
C.4 Mohd. Idris (1965- Supreme Court Constitution Bench)
19. In Mohd. Idris v. Sat Narain22, a Constitution Bench of this
Court considered whether a pending application filed on 27 May 1952
under the UP Agriculturist Relief Act for redemption of a mortgage was
rendered incompetent upon the passing of the UP Zamindari Abolition
and Land Reforms (Amendment) Act 1953 which was brought into force
with retrospective effect on 1 July 1952. The question, as Justice M
Hidayatullah (as the learned Chief Justice then was) formulated was,
“whether the right of the plaintiff to continue the suit under the old law
was in any way impaired”. Dealing with the provisions of Section 6 of
the UP General Clauses Act 1897 (which is pari materia to the
corresponding provisions of the General Clauses Act), the Court held:
“7…The question is whether a different intention appears in either
the Abolition Act or the Amending Act 16 of 1953, for otherwise
the old proceeding could continue before the Munsif. There is
nothing in the Abolition Act which takes away the right of
suit in
respect of a pending action. If there be any doubt, it is removed
when we consider that the U.P. Agriculturist Relief Act was
repealed retrospectively from July 1, 1952 only and it is not,
therefore, possible to give the repeal further retrospectivity so as
to affect a suit pending from before that date. The jurisdiction
of the Assistant Collector was itself created from July 1,
1952 and there is no provision in the Abolition Act that
pending cases were to stand transferred to the Assistant
Collector for disposal. Such provisions are commonly found
in a statute which takes away the jurisdiction of one court
and confers it on another. From these two circumstances it
is to be inferred that if there is at all any expression of
intention, it is to keep Section 6 of the General Clauses
22 “Mohd. Idris”; AIR 1966 SC 1499
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Act applicable to pending litigation. The doubt, if any be left,
is further removed if we consider a later amending Act, namely,
amending Act 18 of 1956. By that Act Schedule II, which created
the jurisdiction of the Assistant Collector in suits for ejectment of
asamis was replaced by another Schedule. The entry relating to
suits for ejectment of asamis, however, remained the same. But
Section 23 of the amending Act of 1956 created a special saving
which reads as follows:
“23. Saving.—(i) Any amendment made by this Act shall
not effect the validity, invalidity, effect or consequence of
anything already done or suffered, or any right, title obligation
or liability already acquired, accrued or incurred or any
jurisdiction already exercised, and any proceeding instituted
or commenced before any court or authority prior to the
commencement of this Act shall, notwithstanding any
amendment herein made, continue to be heard and decided
by such court or authority.
(ii) An appeal, review or revision from any suit or proceeding
instituted or commenced before any court or authority prior
to the commencement of this Act shall, notwithstanding any
amendment herein made, lie to the Court or authority to
which it would have laid if instituted or commenced before
the said commencement.”
The addition of this section clearly shows that by the
conferral of the jurisdiction upon the Assistant Collector it
was not intended to upset
litigation pending before
appropriate authorities when the Abolition Act came into
force. Section 23 in terms must apply to the present case, because
if it had remained pending before the Munsif, till 1956, it is clear,
the jurisdiction of the Munsif would not have been ousted. Although
it was not pending before the Munsif it was pending before the
appellate court when the 1956 Amendment Act was passed. It
follows, therefore, that to such a suit the provisions of Schedule II
read with Section 200 of the Abolition Act cannot be applied
because the legislature has in 1956 said expressly what was implicit
before, namely, that pending actions would be governed by the
old law as if the new law had not been passed. In our judgment,
therefore, the proceedings before the Munsif were with jurisdiction
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because they were not affected by the passing of the Abolition
Act or the amending Act, 1953, regard being had to the provisions
of Section 6 of the U.P. General Clauses Act in the first instance
and more so in view of the provisions of Section 23 of the amending
Act, 1956 which came before the proceedings between the parties
had finally terminated. The appeal must, therefore, fail. It will be
dismissed with costs.”
(emphasis supplied)
20. The Constitution Bench relied on the absence of a provision
for transfer of pending actions under the repealing legislation to save the
proceedings at the old forum. The Constitution Bench observed that
provisions of transfer of pending cases are commonly found in such
legislations. It is pertinent to mention that the subsequent repealing
legislation materially altered the position of the parties. The mortgagee
appellants were resisting their ejectment from the suit land by the
respondent mortgagor in a suit for redemption of mortgage on the ground
that they have become asamis or sirdars under the repealing legislation
and their ejectment can only take place in accordance with the provisions
of the new Act. Hence, the effect of the repeal was not a mere change
in forum. Further, a subsequent amendment to the repealing legislation
made it clear that the pending proceedings would be concluded at the
earlier forum where they had been instituted and under the repealed
legislation.
C.5 Manujendra Dutt (1966 Supreme Court- 2
judges)
21. In Manujendra Dutt v. Purnedu Prosad Roy Chowdhury23,
a two judge Bench of this Court consisting of Chief Justice K Subba
Rao and Justice J M Shelat dealt inter alia with the jurisdiction of the
Controller under the Calcutta Thika Tenancy Act 1949, after the deletion
of Section 29 by Amending Act 6 of 1953, in respect of proceedings
pending before him on that date. The High Court had taken the view
that in spite of the deletion of Section 29, the jurisdiction of the Controller
in respect of matters pending before him on the date of the coming into
force of the Amending Act was saved. The submission which was urged
before this Court was that since it was only by reason of Section 29 that
the suit had been transferred to the Controller, the deletion of that Section
from the legislation had the effect of depriving the Controller of its
23 “Manujendra Dutt” ; (1967) 1 SCR 475
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jurisdiction and hence the judgment and order, though confirmed by the
Subordinate Judge and by the High Court, was without jurisdiction.
Repealing this contention, Justice J M Shelat held:
“4…Though Section 29 was deleted by the amendment Act
of 1953 the deletion would not affect pending proceedings
and would not deprive the Controller of his jurisdiction to
try such proceedings pending before him at the date when
the amendment Act came into force. Though the
amendment Act did not contain any saving clause, under
Section 8 of the Bengal General Clauses Act, 1899, the
transfer of the suit having been lawfully made under Section
29 of the Act its deletion would not have the effect of
altering the law applicable to the claim in the litigation.
There is nothing in Section 8 of the amending Act of 1953
suggesting a different intention and therefore the deletion
would not affect the previous operation of Section 5 of the Calcutta
Thika Tenancy Act or the transfer of the suit to the Controller or
anything duly done under Section 29. That being the correct position
in law the High Court was right in holding that in spite of the
deletion of Section 29 the Controller still had the jurisdiction to
proceed with the said suit transferred to him.”
(emphasis supplied)
22. The above extract indicates that the Amending Act did not
contain a savings clause under Section 8 of the Bengal General Clauses
Act 1899. Despite the absence of
a savings clause, the Court held that
the deletion of Section 29 did not have the effect of altering the law
applicable to the claim in the litigation and there was nothing in the
amending Act to indicate a contrary intention. At this stage, it may be
necessary to note that the second issue involved was the right of the
thika tenant as defined by the Act to the notice provided under the deed
of lease. On this aspect, the decision in Manujendra Dutt(supra) has
been overruled in the seven judge Bench decision in V Dhanapal
Chettiar v. Yesodai Ammal24. It is pertinent to mention that the decision
in Manujendra Dutt(supra), was concerned with the provisions of the
repealing Act that impacted a substantive right of litigants which was
affected by virtue of the repeal and a resulting change in forum. This
Court’s position, in interpreting Section 6 of the General Clauses Act,
24 (1979) 4 SCC 214
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1897 was clearly in favour of saving all substantive rights, including vested
rights, that were acquired or accrued prior to the repeal. Under the
unamended Act, the suit was transferred to the Controller under Section
29, which was deleted by the Amending Act. In this context the Court
held that on account of Section 8 of the Bengal General Clauses Act, the
deletion would not affect the transfer of the suit or anything duly done
under Section 29 (paragraph 5). This Court’s decision hence may not be
relevant in interpreting Section 6(e) of the General Clauses Act, rather it
is useful for interpretating Section 6(b) of the General Clauses Act which
protects “anything duly done or suffered” under the repealed enactment.
C.6 New India Assurance (1975- Supreme Court 3 judges)
23. The first decision of this Court that interpreted a mere change
in forum, that did not impact any other substantive or vested right of the
litigant, was a three judge bench decision of this Court in New India
Assurance Company Limited v. Smt Shanti Mishra25. This case
involved the jurisdiction of the Motor Vehicles Tribunal vis-à-vis the City
Civil Court, in the case of a fatal accident. The accident had occurred
on 11 September 1966 which gave rise to a cause of action for the legal
heirs to claim compensation under the Fatal Accidents Act 1855. Under
Article 82 of the Limitation Act 1963, a limitation of two years from the
occurrence of the accident was stipulated. But in the
meantime, a claims
tribunal under Section 110 of the Motor Vehicles Act 1939 was constituted
by the State government on 18 March 1967 following which an application
was filed by the claimant under Section 110A on 8 July 1967. Both the
tribunal and the High Court overruled the objection of the insurer to
jurisdiction. In appeal, Justice NL Untwalia speaking for the three judge
Bench held:
“5…..It is a well-established proposition that such a change
of law operates retrospectively and the person has to go to
the new forum even if his cause of action or right of action
accrued prior to the change of forum. He will have a vested
right of action but not a vested right of forum. If by express
words the new forum is made available only to causes of
action arising after the creation of the forum, then the
retrospective operation of the law is taken away. Otherwise
the general rule is to make it retrospective. The expressions
25 “New India Assurance”; (1975) 2 SCC 840
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“arising out of an accident” occurring in sub-section (1) and “over
the area in which the accident occurred”, mentioned in sub-section
(2) clearly show that the change of forum was meant to be
operative retrospectively irrespective of the fact as to when the
accident occurred. To that extent there was no difficulty in giving
the answer in a simple way…”
(emphasis supplied)
Dealing with the bar of limitation under Section 110A(3), this Court
held that it could be said that strictly speaking the bar would not operate
in relation to an application for compensation arising out of an accident
which had occurred prior to the constitution of the Tribunal. However, in
directing the institution of claims before the Tribunal, this Court held:
“10. Apropos the bar of limitation provided in Section 110- A(3),
one can say, on the basis of the authorities aforesaid that strictly
speaking, the bar does not operate in relation to an application for
compensation arising out of an accident which occurred prior to
the constitution of the claims tribunal. But since in such a case
there is a change of forum, unlike the fact of the said cases,
the reasonable view to take would be that such an
application can be filed within a reasonable time of the
constitution of the tribunal, which ordinarily and generally,
would be the time of limitation mentioned in sub-section
(3). If the application could not be made within that time
from the date
of the constitution of the tribunal, in a given
case, the further time taken in the making of the application
may be held to be the reasonable time on the facts of that
case for the making of the application or the delay made
after the expiry of the period of limitation provided in sub-
section
(3) from the date of the constitution of the tribunal can be
condoned under the proviso to that sub-section. In any view
of the matter, in our opinion, the jurisdiction of the civil
court is ousted as soon as the claims tribunal is constituted
and the filing of the application before the tribunal is the
only remedy available to the claimant. On the facts of this
case, we hold that the remedy available to the respondents was to
go before the claims tribunal and since the law was not very clear
on the point, the time of about four months taken in approaching
the tribunal after its constitution can be held to be either a
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reasonable time or the delay of less than 2 months could well be
condoned under the proviso to sub-section (3) of Section 110-A.”
(emphasis supplied)
The above decision conclusively held that a change of forum
generally operates retrospectively, irrespective of whether the cause or
right of action had accrued earlier. It directed that once the change in
forum had been effected, the litigant would have to be directed to the
new forum.
C.7 Maria Cristina (1978- Supreme Court- 2 judges)
24. A subsequent decision of a two judge Bench of this Court in
Maria Cristina De Souza v. Amria Zurana Pereira Pinto26, enunciated
the law relating to change of forum vis-à-vis the right of appeal. In that
case, a suit was instituted in 1960 under the Portuguese Civil Procedure
Code and decreed against the appellants in 1968. The appellants lodged
an appeal before the Court of the Judicial Commissioner. Following the
liberation of Goa in 1961, the Code of Civil Procedure 1908 was extended
to the territories of Goa, Daman and Diu with effect from 15 June 1966
by Act 30 of 1965 and the corresponding provision and the corresponding
Portuguese Code were repealed. The legislative assembly of Goa enacted
the Goa, Daman and Diu Civil Courts Act 1965 under which the suit
which was pending before the Court at Margao was transferred to and
decreed by the Senior Civil Judge. Since the suit was of a value exceeding
Rs 10 lacs an appeal lay directly to the High Court which under Section
2(f) meant the Judicial Commissioner’s Court. Justice V D Tulzapurkar,
speaking for the two judge Bench held:
“5. On the question as to where the appeal could be lodged we
are clearly of the view that the forum was governed by the
provisions of the Goa, Daman and Diu (Extension of Code of
Civil Procedure, 1908 and Arbitration Act, 1940) Act, 1965 (Central
Act 30 of 1965) read with the provisions of the Goa, Daman and
Diu civil court Act, 1965 (Goa Act 16 of 1965) both of which
came into force simultaneously on June 15, 1966 and the appeal
was required to be filed in the Judicial Commissioner’s Court.
Under the Central Act 30 of 1965 with effect from June 15, 1966
the provisions of the Indian Civil Procedure Code were extended
to the Union Territories of Goa, Daman and Diu and the
26 “Maria Cristina”; (1979) 1 SCC 92
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corresponding provisions of the Portuguese Code were repealed
while under the Goa Act 16 of 1965 the instant suit which was
pending before the Comarca Court at Margao was continued and
decreed by corresponding Court of the Senior Civil Judge, who
ultimately decreed it on March 8, 1968. Under the Indian Civil
Procedure Code read with Section 22 of the Goa Act since the
property involved in the suit was of the value exceeding Rs 10,000
the appeal clearly lay to the Judicial Commissioner’s Court. The
contention that since the right of appeal had been conferred
by 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 30 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 Colonial Sugar
Refining Company Ltd. v. Irving
[1905 AC 369] and Garikapatti Veeraya v. N. Subbiah
Choudhury [1957 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 Act, will have to be lodged in a forum provided
for by the repealing Act. That the forum of appeal, and also
the limitation for it, are matters pertaining to procedural
law will be clear from the following passage appearing at p. 462
of Salmond’s Jurisprudence (12th Edn.):
“Whether I have a right to recover certain property is a question
of substantive law, for the determination and the protection of
such rights are among the ends of the administration of justice;
but in what courts and within what time I must institute
proceedings are questions of procedural law, for they relate merely
to the modes in which the courts fulfil their functions.”
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It is true that under clause (c) of the proviso to Section 4 of Central
Act 30 of 1965 (which corresponds to Section 6(e) of the General
Clauses Act, 1897) it is provided that a remedy or legal proceeding
in respect of a vested right like a right to an appeal may be instituted,
continued or enforced as if this Act (meaning the repealing Act)
had not been passed. But this provision merely saves the
remedy or legal proceeding in respect of such vested right
which it is open to the litigant to adopt notwithstanding the
repeal but this provision has nothing to do with the forum
where the remedy or legal proceeding has to be pursued.
If the repealing Act provides new forum where the remedy
or the legal proceeding in respect of such vested right can
be pursued after the repeal, the forum must be as provided
in the repealing Act. We may point out that such a view of
Section 6 (e) of the General Clauses Act, 1897 has been taken by
the Rajasthan High Court in the case of Purshotam Singh v.
Narain Singh and State of Rajasthan [AIR 1955 Raj 203] . It is
thus clear that under the repealing enactment (Act 30 of 1965)
read with Goa Enactment (Act 16 of 1965) the appeal lay to the
Judicial Commissioner’s Court and the same was accordingly filed
in the proper Court.” (emphasis supplied)
25. The decision in Maria Cristina (supra) makes a distinction
between a right of appeal, which is a substantive right that is vested in a
litigant on the commencement of the lis in the
court of first instance and
the forum where an appeal can be lodged which “is indubitably a
procedural matter”. Hence, in the view of the Court, the appeal would
have to be lodged in a forum provided by the repealing Act though the
right had arisen under the repealed Act. These observations of the Court
must be read together with the subsequent observation that if the repealing
act provides a new forum where the remedy or the legal proceeding in
respect of such vested right can be pursued after the repeal, the forum
must be as provided in the repealing Act. The decisions in New India
Assurance(supra) and Maria Cristina (supra) further the
interpretation that a change in forum is indubitably in the realm of
procedural law that applies retrospectively, unless the statute provides
otherwise. The necessary corollary of these decisions, is that the forum
for determination of a lis, whether in the case of an appeal [Maria
Cristina (supra)] or in situations where the right of action had accrued
[New India Assurance (supra)] is in the realm of procedural law.
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C.8 Hitendra Vishnu Thakur (1994- Supreme Court 2
judges)
26. In Hitendra Vishnu Thakur v. State of Maharashtra27,
one among the questions analyzed in a two judge Bench decision of this
Court was whether clause (bb) of Section 20(4) of the Terrorist and
Disruptive Activities (Prevention) Act 198728 introduced by an amending
legislation governing Section 167(2) of the Code of Criminal Procedure29
was in the realm of procedural law and if so, whether it would apply to
pending cases. Dr Justice AS Anand (as he then was) held that amending
Act 43 of 1993 was procedural and retrospective; and that clauses (b)
and (bb) of Section 20(4) of the TADA would apply to cases which
were pending investigation on the date when it came into force. In that
context, the principles of law, that aligned with the position in New India
Assurance(supra) and Maria Cristina(supra), were formulated in
the following terms:
“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 Court in various
cases the illustrative though not exhaustive principles which emerge
with regard to the ambit and scope of an Amending Act and its
retrospective operation may be culled out as follows:
(i) A statute which
affects substantive rights is presumed to be
prospective in operation unless made retrospective, either expressly
or by necessary intendment, whereas a statute which merely
affects procedure, unless such a construction is textually impossible,
is presumed to be retrospective in its application, should not be
given an extended meaning and should be strictly confined to its
clearly defined limits.
(ii) Law relating to forum and limitation is procedural in
nature, whereas law relating to right of action and right of
appeal even though remedial is substantive in nature.
27 “Hitendra Vishnu Thakur”; (1994) 4 SCC 602
28 “TADA”
29 “CrPC”
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(iii) Every litigant has a vested right in substantive law but
no such right exists in procedural law.
(iv) A procedural statute should not generally 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.
(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.” (emphasis supplied)
C.9 Sudhir G Angur (2005- Supreme Court 3 judges)
27. In Sudhir G Angur v. M Sanjeev30, a three judge Bench of
this Court considered the impact of a change in procedural law to pending
proceedings before a particular forum. In this case, the Mysore Code
was repealed in 2003 and the Code of Civil Procedure, 1908 was to
apply. This Court held that the relevant court was under a duty to take
notice of the change in law relating to forum and apply it to a pending
proceeding. In doing so, Justice SN Variava approved the following
exposition of law of the Bombay High Court in Shiv Bhagwan Moti
Ram Saroji v. Onkarmal Ishar Das31:
“11. In our view, Mr G.L. Sanghi is also right in submitting
that it is the law on the date of trial of the suit which is to be
applied. In support of this submission, Mr Sanghi relied upon the
judgment in Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar
Dass [AIR 1952 Bom 365 : 54
Bom LR 330] wherein it has been
held that no party has a vested right to a particular
proceeding or to a particular forum. It has been held that it
is well settled that all procedural laws are retrospective
unless the legislature expressly states to the contrary. It
has been held that the procedural laws in force must be
applied at the date when the suit or proceeding comes on
for trial or disposal. It has been held that a court is bound
to take notice of the change in the law and is bound to
administer the law as it was when the suit came up for
hearing. It has been held that if a court has jurisdiction to try the
30 “Sudhir G Angur”; (2006) 1 SCC 141
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suit, when it comes on for disposal, it then cannot refuse to assume
jurisdiction by reason of the fact that it had no jurisdiction to
entertain it at the date when it was instituted. We are in complete
agreement with these observations. As stated above, the Mysore
Act now stands repealed. It could not be denied that now the
Court has jurisdiction to entertain this suit.” (emphasis supplied)
C.10 Ramesh Kumar Soni (2013- Supreme Court 2 judges)
28. It is trite law to state that all procedural law is retrospective,
unless a contrary legislative intention can be observed. A two judge Bench
in Ramesh Kumar Soni v. State of Maharashtra32 considered a case
where an FIR was registered under the provisions of Sections 408, 420,
467, 468 and 471 of the Indian Penal Code. On the date of the registration
of the case, the offences were triable by the Magistrate of the First
Class in terms of the First Schedule of the CrPC. As a result of Madhya
Pradesh Act 2 of 2008, the First Schedule to the CrPC was amended.
As a consequence, offences under Sections 467, 468 and 471 were
triable by a Court of Sessions instead of a JMFC. Consequent to the
amendment, the JMFC committed the case to the Sessions Court. A
reference was made to the High Court on whether the amendment would
apply retrospectively and whether cases pending before the JMFC and
committed to the Sessions Court should be tried de novo by the Sessions
Judge or should be
remanded back to the Magistrate for further trial. A
Full Bench of the Madhya Pradesh High Court held that cases pending
before the JMFC on 22 February 2008 were unaffected by the amendment
and were triable by the JMFC since the amending Act did not contain a
clear indication that such cases would be made over to the Court of
Sessions. Justice TS Thakur (as the learned Chief Justice then was)
speaking for the two judge Bench observed that the Madhya Pradesh
Amendment had shifted the forum of trial from the Court of the Magistrate
of the First Class to the Court of Sessions. The issue was whether the
amendment to the forum was prospective or would govern cases that
were pending on the date of the amendment. This Court noted that:
“9. Having said so, we may now examine the issue from a slightly
different angle. The question whether any law relating to forum
of trial is procedural or substantive in nature has been the subject-
matter of several pronouncements of this Court in the past. We
may refer to some of these decisions, no matter briefly.”
32 “Ramesh Kumar Soni”; (2013) 14 SCC 696
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After adverting to the decisions in New India Assurance(supra),
Hitendra Vishnu Thakur(supra) and Sudhir G Angur(supra), the
Court observed:
“14. The amendment to the Criminal Procedure Code in the instant
case has the effect of shifting the forum of trial of the accused
from the Court of the Magistrate, First Class to the Court of
Session. Apart from the fact that as on the date the amendment
came into force no case had been instituted against the appellant
nor had the Magistrate taken cognizance against the appellant,
any amendment shifting the forum of the trial had to be on principle
retrospective in nature in the absence of any indication in the
Amendment Act to the contrary. The appellant could not claim a
vested right of forum for his trial for no such right is recognized.
The High Court was, in that view of the matter, justified in (sic
not) interfering with the order passed by the trial court.”
This Court noted that the Full Bench of the High Court had however
relied upon inter alia the decision in Manujendra Dutt(supra). This
decision was distinguished on the ground that the suit had been instituted
and concluded and no vested right could be claimed for a particular
forum for litigation. This Court consequently overruled the judgment of
the Full Bench of the High Court, though prospectively, since many cases
which had sent back from the Sessions Court to the JMFC may have in
the meantime been concluded or would have reached an advanced stage.
An
exception to those cases was made as a change of forum at that
stage would cause unnecessary and avoidable hardship to the accused,
if they were committed to the Sessions Court for trial after the amendment
and the view of this Court. However, the principle of change of forum
being procedural, generally retrospective and applicable to pending
proceedings was upheld.
C.11 Dhadi Sahu (1992 Supreme Court 2 judges)
29. Now, in this backdrop, it becomes necessary to consider the
1992 decision of a two judge Bench of this Court in Commissioner of
Income Tax, Orissa v. Dhadi Sahu33 and several decisions which
adverted to it. This was a case where the assessee had preferred appeals
to the Income Tax Appellate Tribunal. The Tribunal allowed the appeals
and set aside the penalties holding that in view of the amendment made
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to Section 274(2) of the Income Tax Act 1961 with effect from 1 April
1971, the Inspecting Assistant Commissioner34 lost his jurisdiction. The
power of the Income Tax Officer to impose a penalty under Section 271
was subject to Section 274. As a result of the amending Act which came
into force on 1 April 1971, the amount of income allegedly concealed
had to exceed twenty- five thousand rupees. The effect of this
amendment was that the Assistant Commissioner did not have jurisdiction
over the assessee as the concealed amount was lesser than the minimum
amount prescribed by the subsequent amendment. Justice Yogeshwar
Dayal speaking for the two judge Bench premised the judgment on “the
general principle of law” that a change of forum does not affect pending
actions unless a contrary intent is shown:
“18. It may be stated at the outset 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.
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 jurisdiction to try them.”
This Court held that the amending Act did not make any provision
that references validly pending before IAC shall be returned without
passing any final order if the amount of income
in respect of which
particulars have been concealed did not exceed rupees twenty five
thousand. This, in the view of the Court, supported the inference that the
IAC continued to have jurisdiction to impose a penalty on pending
references. The previous operation of Section 274(2) as it stood before
1 April 1971 and anything done under it, continued to have effect under
Section 6(b) for the General Clauses Act enabling the IAC to pass orders
imposing a penalty in a pending reference. If the reference was made
before 1 April 1971, it would be governed by Section 274(2) as it stood
before that date and the IAC would continue to have jurisdiction. However,
in paragraph 21 of the decision, this Court observed:
“21. It is also true that no litigant has any vested right in the matter
of procedural law but where the question is of change of forum it
ceases to be a question of procedure only. The forum of appeal or
proceedings is a vested right as opposed to pure procedure to be
followed before a particular forum. The right becomes vested
34 “IAC”
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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 implication clearly so indicated, that vested right
will continue in spite of the change of jurisdiction of the different
tribunals or forums.”
30. This Court then adverted to the decision in Manujendra
Dutt(supra) and Mohd. Idris(supra) and observed that “amending an
Act does not show that the pending proceedings before the court on
reference abate”. Therefore, the decision of the two judge Bench in
Dhadi Sahu(supra) held that a litigant had a crystallized right to a forum
when proceedings have been initiated and are pending. Such a right
vested, in the view of the Court, is distinct from a pure procedure to be
followed before the forum concerned. In taking this view, the two judge
Bench in Dhadi Sahu(supra) did not consider a three judge bench
decision in New India Assurance(supra) as well as a previous co-
ordinate Bench decision in Maria Cristina(supra), which relied on
common law jurisprudence and Section 6 of the General Clauses Act to
hold that a change in forum is purely a procedural matter which operates
retrospectively in the absence of a contrary legislative mandate. The
latter principle has since been followed in the decisions in Hitendra
Vishnu Thakur(supra); Sudhir G Angur(supra); Ranbir Yadav v.
State of Bihar35; Kamlesh Kumar v. State of Jharkhand36 and
Ramesh Kumar Soni (supra).
C.12 Ambalal
Sarabhai (2001- Supreme Court 2 judges)
31. Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.37
is a two judge Bench decision which considered the impact of an
amendment to the Delhi Rent Control Act made with effect from 1
December 1988 which excluded the jurisdiction of the Rent Controller
with respect to tenancies fetching a monthly rent exceeding 3500 rupees.
The Rent Controller had been moved by the landlord who sought a decree
of eviction on the ground of subletting, but prior to the amendment. The
tenant contended that the Civil Court alone had jurisdiction after the
amendment. In this backdrop, Justice AP Misra speaking for the two
judge Bench adverted to the provisions of Section 6 of the General Clauses
Act and observed:
35 (1995) 4 SCC 392
36 (2013) 15 SCC 460
37 “Ambalal Sarabhai”; (2001) 8 SCC 397
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“26. As a general rule, in view of Section 6, the repeal of a statute,
which is not retrospective in operation, does not prima facie affect
the pending proceedings which may be continued as if the repealed
enactment were still in force. In other words, such repeal does
not affect the pending cases which would continue to be concluded
as if the enactment has not been repealed. In fact when a lis
commences, all rights and obligations of the parties get crystallized
on that date. The mandate of Section 6 of the General Clauses
Act is simply to leave the pending proceedings unaffected which
commenced under the unrepealed provisions unless contrary
intention is expressed. We find clause (c) of Section 6, refers the
words “any right, privilege, obligation… acquired or accrued”
under the repealed statute would not be affected by the repealing
statute. We may hasten to clarify here, mere existence of a
right not being “acquired” or “accrued” on the date of the
repeal would not get protection of Section 6 of the General
Clauses Act.
27. At the most such a provision can be said to be granting a
privilege to the landlord to seek intervention of the Controller for
eviction of the tenant under the Statute. Such a privilege is not a
benefit vested in general but is a benefit 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.”      (emphasis supplied)
32. This Court noted that a pending proceeding would be saved
under Section 6(e) of the General Clauses Act only if it is in relation to a
right, privilege or obligation that has been acquired or accrued under
Section 6(c) of the Act. It is pertinent to mention that the landlord under
the amended act would have lost his right to evict the tenant on the
ground of sub-letting since the Rent Control Act ceased to be applicable
to premises where the monthly rent exceeded Rs. 3500. Further, pursuant
to the amendment, not only was his right of action before the Rent
Controller terminated but also the landlord was relegated to common
law remedies. The amendment substantially affected the right of action
of the landlord and did not merely change the forum. It was in this context,
that this Court held that a right had accrued to the landlord to continue
the eviction proceeding under the unamended Rent Control Act.
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33. The Court observed that there are two sets of cases, one
where Section 6 of the General Clauses Act is applicable and the other
where it is not applicable. In cases where Section 6 is not applicable, the
Court would have to scrutinize and determine whether a vested right
had accrued to a person under a repealed statute in which event pending
proceedings would have to be saved. However, where Section 6 is
applicable, it is not merely a vested right but all those covered by clauses
(a) to (e) of Section 6 which are saved and, in such cases, the pending
proceedings would be continued as if the statute had not been repealed.
In the context of Section 6(c) of the General Clauses Act, the Court
observed that the expression “any right accrued” is wide enough to include
the landlord’s rights to evict a tenant in a proceeding was pending when
the repealing legislation came into force. Pending proceedings before
the Rent Controller would, therefore, continue to be proceeded with as
if the repealed act was still in force. It is pertinent to mention that the
decision in Ambalal Sarabhai(supra) only saved pending proceedings
that were coupled with a vested right (in the event of non- applicability
of Section 6 of the General Clauses Act) or with any rights that had
accrued under Section 6(c)-(e) of General Clauses Act.
C.13 HP State Electricity (2013- Supreme Court 2 judges)
34. The principle of a crystallized right to a forum when
proceedings are pending, as
propounded in Dhadi Sahu(supra), was
subsequently referred to in several decisions of this Court, including a
two judge bench decision in Himachal Pradesh State Electricity
Regulatory Commission v Himachal Pradesh State Electricity
Board38. The Commission which was constituted under an Act of 1998
determined the tariff applicable for electricity in the State. Subsequently,
while discharging its regulatory functions, the Commission opined that a
part of the tariff had not been complied with. In pursuance of its notice,
the Board was subjected to a penalty upon which an appeal was filed
under Section 27 of the Act of 1998. During the pendency of the appeal
the earlier Act was repealed and the Electricity Act 2003 came into
force. When the appeals were taken up by the Single Judge, the
Commission raised preliminary objection on maintainability on the ground
that after the constitution of an Appellate Tribunal under the 2003
legislation, it would be the Appellate Tribunal which would have jurisdiction
and the High Court had no jurisdiction to hear the appeal. The High
38 “HP State Electricity”; (2014) 5 SCC 219
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Court held that even after the enforcement of the new legislation in
2003, it continued to have jurisdiction. The judgment of the High Court
was assailed on the ground that the appeal was not maintainable before
it, upon a separate forum being constituted. Section 185 contained a
repeal and savings provision. Justice Dipak Misra (as the learned chief
Justice then was) speaking for a two judge Bench held that “a right of
appeal as well as forum is a vested right” unless it is taken away by the
legislature either by express provision or by necessary intention. The
Court held:
“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 they are 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.
26…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 transferred 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.” (emphasis supplied)
35. Hence, the conclusion of the High Court that it had jurisdiction
to hear the appeal was held to be “absolutely flawless” by observing
that “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”.
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C.14 Videocon International (2015- Supreme Court 2
judges)
36. A two judge Bench of this Court in Videocon International
Limited v. Securities and Exchange Board of India39 dealt with the
Appellate provisions contained in the Security and Exchange Board of
India Act 1992. Following the insertion of Chapter 6B with effect from
25 January 1995, the remedy of an appeal was provided to the Securities
Appellate Tribunal under Section 15 T to a person aggrieved by an order
of the Board or by an Adjudicating Officer. Section 15 Z provided an
appeal to the High Court against an order of the SAT on any question of
fact or law. Section 15 Z was amended with retrospective effect from
29 October 2002 to provide an appeal against the orders of the
SAT to the Supreme Court on any question of law. The forum of the
second appellate remedy was changed from the High Court to the
Supreme Court. Appeals against the order of the SAT which had been
passed before 29 October 2002 (the date of amendment) were filed
before the High Court which held that such appeals which have been
instituted before the enforcement of amended Section 15 Z would not be
affected by the amendment and that it would continue to have jurisdiction
to hear and dispose of the appeals. The Amending Act had a repeal and
savings provision in Section 32 which was in the following terms:
“32. Repeal and saving.—(1) The Securities and Exchange Board
of India (Amendment) Ordinance, 2002 (Ord. 6 of 2002), is
hereby
repealed.
(2) Notwithstanding the repeal of the Securities and Exchange
Board of India (Amendment) Ordinance, 2002 (Ord. 6 of 2002),
anything done or any action taken under the principal Act as
amended by the said Ordinance, shall be deemed to have been
done or taken under the principal Act, as amended by this
Act.”
37. The judgment of the High Court was assailed, citing the
decisions in Hitendra Vishnu Thakur(supra) and Maria
Cristina(supra) amongst others, and it was urged that the amendment
by which the appellate forum was changed from the High Court to the
Supreme Court must be treated as merely procedural. On the other
hand, the Respondent relied on the decision in Dhadi Sahu(supra) and
39 “Videocon International”; (2015) 4 SCC 33
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Ambalal Sarabhai(supra). Justice JS Khehar (as the learned Chief
Justice then was) examined whether the amendment “envisaged a mere
change of forum”40.
38. In this context, this Court noted that while under the un-
amended Section 15 Z, an appeal lay before the High Court “on any
question of fact or law arising out of such order” the amendment had
curtailed and restricted the right of appeal since the appeal to this Court
would now lie “on any question of law arising out of such order”.
Consequently, this Court noted:
“41…. Accordingly, by the amendment, the earlier appellate
package stands reduced, because under the amended Section
15-Z, it is not open to an appellant, to agitate an appeal on facts.
That being the position, it is not possible for us to accept the
contention advanced at the hands of the learned counsel for the
appellant, that the amendment to Section 15-Z 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
15-Z of the SEBI Act, having reduced the appellate package,
adversely affected the vested appellate right of the litigant
concerned….”
40 “38. First and foremost, we shall determine the veracity of the contention advanced
at the hands of the learned counsel for the appellant, that the remedy of second appeal
provided for in the unamended Section 15-Z of the SEBI Act remained unaffected by
the amendment of the
said provision; and on the basis of the above assumption, the
learned counsel’s submission, that the present controversy relates to an amendment
which envisaged a mere change of forum. Insofar as the instant aspect of the matter is
concerned, it would be pertinent to mention, that a right of appeal can be availed of
only when it is expressly conferred. When such a right is conferred, its parameters are
also laid down. A right of appeal may be absolute i.e. without any limitations. Or, it
may be a limited right. The above position is understandable, from a perusal of the
unamended and amended Section 15-Z of the SEBI Act. Under the unamended Section
15-Z, 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 15-Z, 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 15-Z, varied the scope of the second appeal provided
under the SEBI Act.”
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While noting that this position would be subject to an amendment
providing to the contrary, this Court held that Section 32 which provided
the repeal and savings clause did not indicate a contrary intent. Hence,
the appellate remedy which was available prior to the amendment of
Section 15 Z would, in the view of this Court continue to be available
despite the amendment. Moreover, this Court held that neither the date
of filing the appeal nor its hearing was of any relevance since the right
to an appellate remedy becomes vested when the lis is initiated. The
contention of the appellant that in the absence of a savings clause the
pending proceedings could not be deemed to have been saved was
rejected by placing reliance on the decision in Ambalal Sarabhai
(supra):
“44…. In the judgment rendered by this Court in Ambalal
Sarabhai Enterprises Ltd. case [Ambalal Sarabhai Enterprises
Ltd. v. Amrit Lal and Co., (2001) 8 SCC 397] , 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 amendment of Section 15-Z) would not be
affected in any manner…
Furthermore, the instant contention is wholly unacceptable in view
of the mandate contained in Sections 6(c) and (e) of the General
Clauses Act, 1897. While interpreting
the aforesaid provisions this
Court has held, that the amendment of a statute, which is not
retrospective in operation, does not affect pending proceedings,
except where the amending provision expressly or by necessary
intendment provides otherwise. Pending proceedings are to
continue as if the unamended provision is still in force. This Court
has clearly concluded, that when a lis commences, all rights and
obligations of the parties get crystallised on that date, and the
mandate of Section 6 of the General Clauses Act, simply ensures,
that pending proceedings under the unamended provision remain
unaffected….”
As regards the decisions inter alia in Hitendra Vishnu
Thakur(supra) and Maria Cristina(supra), this Court held that the
principle that the forum is a procedural matter and that an amendment
which alters the forum would apply retrospectively cannot be doubted
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but “the same is not an absolute rule”. On this aspect, the Bench relied
upon the decision in Dhadi Sahu(supra) in support of the principle that
an amendment of a forum would not necessarily be an issue of procedure.
“45. Having concluded in the manner expressed in the foregoing
paragraphs, it is not necessary for us to examine the main
contention, advanced at the hands of the learned counsel for the
appellant, namely, that the amendment to Section 15-Z of the SEBI
Act, contemplates a mere change of forum of the second appellate
remedy. Despite the aforesaid, we consider it just and appropriate,
in the facts and circumstances of the present case, to delve on
the above subject as well. In dealing with the submission advanced
at the hands of the learned counsel for the appellant, on the subject
of forum, we will fictionally presume, that the amendment to
Section 15-Z by the Securities and Exchange Board of India
(Amendment) Act, 2002 had no effect on the second appellate
remedy made available to the parties, and further that, the above
amendment merely alters the forum of the second appeal, from
the High Court (under the unamended provision), to the Supreme
Court (consequent upon the amendment). On the above
assumption, the learned counsel for the appellant had placed
reliance on the decisions rendered by this Court in Maria
Cristina De Souza Sodder [Maria Cristina De Souza Sodder
v. Amria Zurana Pereira Pinto, (1979)
1 SCC 92] , Hitendra
Vishnu Thakur [Hitendra Vishnu Thakur v. State of
Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087]
and Thirumalai Chemicals Ltd. [Thirumalai Chemicals Ltd.
v. Union of India, (2011) 6 SCC 739 : (2011) 3 SCC (Civ)
458] cases 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 Dhadi Sahu case
[CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257] , 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
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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 the appellate
remedy is altered by an amendment, the change in the
forum, would constitute a procedural amendment, as
contended by the learned counsel for the appellant.
Consequently even in the facts and circumstances of the present
case, all such appeals as had been filed by the Board, prior to
29-10-2002, would have to be accepted as vested, and must be
adjudicated accordingly.” (emphasis supplied)
The conclusion of this Court was held to be in accordance with
the mandate of Section 6 of the General Clauses Act. The appeals which
had been filed by SEBI before the High Court were therefore held to be
maintainable.
C.15 SEBI v. Classic Credit (2018- Supreme Court 2
judges)
39. We have already noticed the earlier decision of Justice J S
Khehar in Videocon International (supra). Subsequent to the aforesaid
decision, in Securities and Exchange of Board of India v. Classic
Credit Limited41, a two judge bench of this Court, speaking through
Justice Khehar, considered a claim for
transfer of pending proceedings
under the SEBI Act 1992. At the time when the complaints were filed
under Section 26(2), the accused was required to be tried by a
Metropolitan Magistrate (or a JMFC). Section 24(1) as it existed prior
to the amendment read as follows:
“24. Offences.—(1) Without prejudice to any award of penalty
by the adjudicating officer under this Act, if any person contravenes
or attempts to contravene or abets the contravention of the
provisions of this Act or of any rules or regulations made thereunder,
he shall be punishable with imprisonment for a term which may
extend to one year, or with fine, or with both.
41 (2018) 13 SCC 1
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(2) If any person fails to pay the penalty imposed by the adjudicating
officer or fails to comply with any of his directions or orders, he
shall be punishable with imprisonment for a term which shall not
be less than one month but which may extend to three years or
with fine which shall not be less than two thousand rupees but
which may extend to ten thousand rupees or with both.”
40. After the amendment Section 24(1) envisaged a punishment
for a term of imprisonment which may extend to ten years or with fine
which may extend to rupees 25 crores. As a result of the amendment of
Section 26(2) it came to be stipulated that no court inferior to that of a
Court of Sessions shall try any offence punishable under the Act. After
the 2002 amendment all pending cases before the Metropolitan Magistrate
or JMFC were committed to the Court of Sessions on the assumption
that the amending Act retrospectively altered the forum for trial. When
the issue of jurisdiction was being considered by the Bombay High Court,
SEBI sought to rely upon a judgment of the Delhi High Court which had
concluded that the amendment to Section 26 brought about only a change
in forum and was only procedural. The Bombay High Court took a view
contrary to the judgment of the Delhi High Court. During the pendency of
the appeals before this Court, the SEBI Act was amended again by the
omission of 26(2) and the insertion of Section 26 A to E from 18 July
2013.
SEBI argued that since the impact of 2002 amendment had again been
altered, all the pending cases would be required to be tried by a Special
Court in terms of the 2014 Amendment. Section 26-B provided as follows:
“26-B. Offences triable by Special Courts.—Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of
1974), all offences under this Act committed prior to the date of
commencement of the Securities Laws (Amendment) Act, 2014
or on or after the date of such commencement, shall be taken
cognizance of and tried by the Special Court established for the
area in which the offence is committed or where there are more
Special Courts than one for such area, by such one of them as
may be specified in this behalf by the High Court concerned.”
41. SEBI argued before this Court that a change of the forum for
trial was a matter of mere procedure and would therefore be retrospective,
there being no express or implied intent either in the 2002 and 2014
Amendments that the amendments were intended to be of prospective
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effect. Justice JS Khehar speaking for the two judge Bench of this Court
adverted to the decisions inter alia in New India Assurance(supra),
Ramesh Kumar Soni(supra) and Hitendra Vishnu Thakur(supra),
and observed in that context:
“49…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 [New India Insurance Co.
Ltd. v. Shanti Misra, (1975) 2 SCC 840] ; SEBI v. Ajay Agarwal
[SEBI v. Ajay Agarwal, (2010) 3 SCC 765 : (2010) 2 SCC (Cri)
491] and Ramesh Kumar Soni v. State of M.P. [Ramesh Kumar
Soni v. State of M.P., (2013) 14 SCC 696 : (2014) 4 SCC (Cri)
340] , 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 [Hitendra
Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994
SCC (Cri) 1087]; Ranbir Yadav v. State of Bihar [Ranbir Yadav
v. State of Bihar, (1995) 4 SCC 392 : 1995 SCC (Cri) 728] and
Kamlesh Kumar v. State of Jharkhand [Kamlesh Kumar v. State
of Jharkhand, (2013) 15 SCC 460 : (2014) 6 SCC (Cri) 489] , as
well
as, a number of further judgments noted above.”
42. The above observations indicate the clear view of this Court
that:
(i)
In the absence of a contrary intent express or implied,
procedural amendments are presumed to be retrospective;
(ii)
A change in the forum of a trial is a procedural matter; and
(iii)
Since a change of forum is procedural, a statute which brings
about the change is presumed to be retrospective in the
absence of a contrary intent.
43. Hence, the Court went on to observe that it had “also no
doubt ...that change of “forum” being procedural the amendment of the
“forum” would operate retrospectively, irrespective of whether the
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offence allegedly committed by the accused was committed prior to the
amendment”42.
44. However, the Bench was conscious of the contrary view in
Dhadi Sahu(supra) and the conflicting interpretations in the decisions
in Manujendra Dutt(supra), Mohd. Idris(supra), Ambalal
Sarabhai(supra), Ramesh Kumar Soni(supra) and Videocon
International(supra) (which the Bench adverted to in paragraphs 51
to 53 of its decision). Dealing with this line of authority, Chief Justice J S
Khehar observed:
“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 crystallized into a
vested substantive right.”
The view which was formulated by the Court was that where a
remedy has been availed of prior to the amendment then unless the
amending provision mandates either expressly or by necessary implication,
the transfer of proceedings to the forum introduced by the amendment,
the forum as it exceeded prior to the amendment would continue to have
jurisdiction:
“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 the 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 court concerned, had not taken cognizance and
commenced trial proceedings, in consonance with the unamended
provision.”
42 At para 50, page 68
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Where, however, proceedings had already commenced before the
amendment, a change in the forum of the trial would not affect pending
actions unless a contrary intent is shown. This Court then scrutinized
whether the amendments which were made in 2002 and 2014 expressed
a contrary intent. The Court held that Section 26, as amended in 2002,
left no room for doubt that the erstwhile forum ceases to have
adjudicating authority and the newly created forum - the Court of
Sessions would deal with all pending matters as well. As a result, the
2002 Amendment “diverted jurisdiction” from the Metropolitan
Magistrates and JMFCs to try offences under the SEBI Act after the
amendment became operational. Similarly, the 2014 Amendment grouped
all offences together by providing that they would be tried by a Special
Court whether committed prior to or after the amendment; no segregation
being permissible. By the 2014 amendment, the function of taking
cognizance had been vested with the Special Courts. This Court held
that all pending matters where cognizance had been taken and
proceedings had commenced before the Court of Sessions would not be
affected. In conclusion, this Court observed:
“79. In view of the consideration recorded hereinabove, we are
of the view, that the “forum” for trial earlier vested in the Court of
Metropolitan Magistrate (or Judicial Magistrate of the First Class)
was retrospectively amended, inasmuch as, the “forum” of trial
after the 2002 Amendment
Act was retrospectively changed to
the Court of Session. In this view of the matter, the trials even in
respect of offences allegedly committed before 29-10-2002 (the
date with effect from which the 2002 Amendment Act became
operational), whether in respect whereof trial had or had not been
initiated, would stand jurisdictionally vested in a Court of Session.
And likewise, trials of offences under the SEBI Act, consequent
upon the 2014 Amendment Act (which became operational, with
effect from 18-7-2013) would stand jurisdictionally transferred
for trial to a Special Court, irrespective of whether the offence
under the SEBI Act was committed before 29-10-2002 and/or
before 18- 7-2013 (the date with effect from which the 2014
Amendment Act became operational), and irrespective of the fact
whether trial had or had not been initiated.”
Accordingly, the view of the Delhi High Court in transferring
pending proceedings was affirmed while that taken by the Bombay High
Court was set aside.
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C.16 Swapna Mohanty (2018- Supreme Court 2 judges)
45. A two judge Bench of this Court in Swapna Mohanty v.
State of Odisha43 dealt with the provisions of Section 24 B of the Orissa
Education Act 1969. The State Education Tribunal obtained jurisdiction
to decide appeals in respect of colleges only from the date on which
they were admitted to grant-in-aid. The appeal was filed in August 2002
before the College was admitted to grant-in-aid in February 2004 and
the issue examined was whether the Director of Higher Education had
competence to hear the appeal after the college was admitted to grant-
in-aid. Justice L Nageswara Rao speaking for the two judge Bench held
that the Director continued to have jurisdiction to decide the appeal which
was filed before him prior to the admission of the college to grant-in-aid
“as there is no provision in the Orissa Education Act providing for a
change-over of all proceedings to the Tribunal”.44 In arriving at this
conclusion, the two judge Bench relied on the judgment in Dhadi Sahu
(supra).
C.17 Om Prakash Agarwal (2018- Supreme Court 2 judges)
46. In Om Prakash Agarwal v. Vishan Dayal Rajpoot45, a two
judge Bench of this Court considered the provisions of the UP Civil
Laws (Amendment) Act 2015 under which, with effect from 7 December
2015, Sections 9 and 21 of the Bengal, Agra and Assam Civil Courts Act
1887 and Section 15 of the Provincial Small Cause Courts Act 1887
were
amended. By the amendment, the limit of the pecuniary jurisdiction
of the Small Cause Courts was increased from rupees twenty-five
thousand to rupees one lakh. Although, the pecuniary jurisdiction was
enhanced to rupees one lakh, the suit which was pending before the
Additional District Judge continued to proceed without objection by the
parties. A decree for eviction and for arrears of rent was passed. In the
revision before the High Court, one of the grounds raised was that in
view of the UP Civil Laws (Amendment) Act 2015, the Court of the
Additional District Judge ceased to have jurisdiction to try a suit between
a lessor and lessee of a value of upto one lakh from 1 December 2015
and the assumption of jurisdiction was invalid. Accepting the submission,
the High Court allowed the revision and remanded the suit for a fresh
decision before the Small Cause Courts. The suit which was instituted
43 (2018) 17 SCC 621
44 Para 9
45 (2019) 14 SCC 526
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under Section 15(2) by the lessor for eviction of the lessee was filed
initially before the Small Cause Court, Firozabad since the valuation was
Rs. 21,175. Subsequently, following the amendment, the valuation was
enhanced to Rs 27,775 and the suit was transferred to the Court of the
District Judge. On these facts, the main issue was whether after 7
December 2015, the Court of the Additional District Judge where the
suit was pending could still have pecuniary jurisdiction to decide the suit
or whether it should be transferred back to the Small Causes Court. By
UP Act 37 of 1972, an amendment had been made in Section 25 of the
Bengal, Agra and Assam Civil Courts Act 1887 so as to empower the
State government to confer upon any District Judge or Additional District
Judge the power of a Judge of the Small Causes Court for the trial of
suits irrespective of value by a lessor for the eviction of a lessee.
47. Justice Ashok Bhushan speaking for the two judge Bench
observed that the expression “irrespective of their value” used in Section
25 as amended was with the clear intent that irrespective of value, cases
filed by the lessee for the eviction of the lessee should be treated as
small causes cases. By a subsequent amendment, the Small Causes Court
presided over by the Civil Judge, became empowered to decide cases up
to a value of twenty-five thousand rupees while those above would be
taken cognizance of by the Additional District Judge. The Court held:
“54…When a small cause suit not exceeding value of Rs 1 lakh is
cognizable by the Court of Small Causes, obviously, no other court
can take cognizance. The Additional District Judge to whom small
causes suit in question was transferred since its valuation was
more than of Rs 25,000 was not competent to take cognizance of
the suit after the U.P. Civil Laws (Amendment) Act, 2015 w.e.f.
7-12-2015, when the suit in question became cognizable by the
Small Cause Court i.e. the Court of Civil Judge, Senior Division.”
C.18 Delhi High Court Bar Association (1993- Delhi HC- DB)
48. We will now advert to a few High Court decisions which have
come to varying conclusions due to the ambiguity introduced in the position
of law by Dhadi Sahu (supra) vis-à-vis Maria Cristina(supra) and
New India Assurance (supra) by creating an exception to the rule
that a change of forum is purely a procedural matter. In Delhi High
Court Bar Association v. Court of Delhi46, the original jurisdiction of
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the High Court was increased from Rs. 1 lakh to Rs. 5 lakhs. The
appellants in that case sought to question the transfer of proceedings
from the High Court to the lower court. The High Court noted that the
Amending Act’s object was to reduce the burden on the High Court and
speedy disposal of cases. The High Court held that change of forum is a
procedural matter and not a vested right. A Division Bench of the High
Court speaking through Justice DP Wadhwa noted the ambiguity created
by Dhadi Sahu (supra) and applied the principle in New India
Assurance(supra) and Maria Cristina(supra) to direct transfer of
pending proceedings as a change of forum owing to amendments to the
pecuniary jurisdiction is a change in procedural law that is usually
retrospective:
“29. In New India Insurance Co. Ltd. v. Smt. Shanti Misra ((1975)
2 SCC 840 : AIR 1976 S.C. 237)(9) the Supreme Court did express
the opinion that change of forum is a change of procedural law
and not a substantive law. In Maria Cristina De Souza Sodder v.
Amria Zurana Percira Pinto, (1979) 1 SCC 92 (10), the court held
that right of appeal though was a substantive right and got vested
in the litigant no sooner the lis was commenced in the court of the
first instance and such right would not be affected by any repeal
of an enactment conferring such right unless the repealing Act
either expressly or by necessary implication took away such right.
The court also said
that the forum where such appeal could
be lodged was a procedural matter and therefore the appeal
the right to which had arisen under the repealing Act would
have to be lodged in a forum provided for by the repealing
Act. In Mithilesh Kumari v. Prem Behari Khare, (1989) 2 SCC
95 : AIR 1989 S.C. 1247 (11), the Supreme Court said that even
vested right could be taken away and said that where remedy is
barred the right became unenforceable. The decision of the
Supreme Court in Commissioner of Income Tax, Orissa v.
Shri Dhadi Sahu, JT 1992 (6) S.C. 714, would appear to be
somewhat in conflict with its earlier decision but this
judgment though holds that forum of appeal is a vested right
to be followed before a particular forum and that right
becomes vested when the proceedings are initiated but that
vested right would not continue if the legislature by express
words or by necessary implications so indicates. The Full
Bench of the Punjab High Court in Gordhan Das Baldev Das v.
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The Governor General in Council, AIR 1952 Punjab 103 (FB)
(12), had also said that such a vested right of appeal to a particular
forum could be taken away by a later statute if the intention of the
legislature was clearly manifested in the later Act.”
(emphasis supplied)
C.19 Mahendra Jain (2008- Bombay HC-DB)
49. In Mahendra Panmal Duggad Jain v. Bhararilal Panmal
Duggad Jain47, a controversy arose before the Bombay High Court
where an amendment was made to Section 26 of the Bombay Civil
Court Act, 1869, which increased the pecuniary jurisdiction of the District
Court from Rs. 50,000 to Rs. 2 lakhs. Consequently, the Registrar of
the Bombay High Court transferred an appeal which was pending when
the amendment came into force to the District Court. The applicants
applied to the District Court for re-transferring the appeal to the High
Court contending that the appeals filed and entertained by the High
Court prior to the amendment coming into force on 13 January 1999
were not liable to be transferred to the District Court. Their application
was rejected and the applicants filed an application of re-transfer of
the appeal before the High Court. The High Court placed reliance on
Section 7(b) of the Bombay General Clauses Act to hold that the
amendment would not affect the proceedings initiated before the High
Court. The High Court held that unless a clear legislative intent can be
discerned, the absence of a savings clause would not warrant transfer
of cases
to a new forum. Although, the High Court noted that the right
to forum is in the realm of procedural law and would not entitle a
litigant who has instituted suit in a trial court before the amending act
came into force to insist that their appeal may also be heard and decided
by the forum prescribed under the unamended provisions. Justice R.C.
Chavan observed:
“19…In view of the provisions of section 7(b) of the Bombay
General Clauses Act the repeal of part of section 26 of Bombay
Civil Courts Act, relating to the reference to the sum of Rs. Fifty
Thousand, would not affect the proceedings which had already
commenced or had been initiated in the High Court. We may,
however, add that right to forum being in the realm of adjectives
or procedural law would not entitle the suitor who had filed suit in
47 (2008) 4 Mah LJ 803
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the trial Court before Amending Act came into force to insist that
even his appeal may be heard and decided by the forum prescribed
under the unamended provisions. This question has already been
concluded by the Full Bench in Vilas Vasant Mahajan v. Central
Bank of India. However, unless clear legislature intent can be
discerned to indicate that even pending matters were required to
be transferred to the new forum, mere absence of a saving clause
like one in the form of section 19 of the Amending Act of 1977,
would not warrant transfer of cases to the new forum.”
C.20 Vallabhaneni (2004- Andhra Pradesh HC- 5 judges)
50. In Vallabhaneni Lakshmana Swamy v. Valluru Basavaiah48
was a case where the A.P. Civil Court (Amendment) Act 1989 raised
the pecuniary jurisdiction to entertain the appeal at the District Court
from Rs. 30,000 to Rs. 1 lakh. By a further amendment the pecuniary
jurisdiction was raised to Rs. 3 lakhs. The High Court held that the
amendment would be applicable prospectively. The High Court further
held that in case of suits which were filed earlier to the amendment
and were pending as on the date the amendment came in force, the
appeal in relation to those suits would be filed before a forum created
under the amended Act depending on the pecuniary limits. If the appeal
has been presented before the date of the amended Act coming into
force and the appeals were pending as on the said date, the amendment
would not have any effect on such pending appeals. The judgement of
the High Court was premised on the principle that when the right to
appeal and forum are inextricable, they both become substantive rights
and travel together. The Special Bench of the High Court observed:
“96. …. if the forum is changed and the right of the appeal in the
forum are so inextricable that they cannot be separated by clear
cut measure. It has to be that the right of appeal as well as the
forum are both substantive rights and therefore, they only apply
to the cases in future and not applied to the pending cases.”
C.21 Gobardhan Lal Soneja (1991- Patna HC- FB)
51. In Gobardhan Lal Soneja v. Binod Kumar Sinha49, the
Patna High Court relied on the decision in New India Assurance to hold
that the transfer of pending proceedings from the Sub-Judge to the Munsif
48 (2004) 5 ALD 807
49 (1991) 2 PLJR 783
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after pecuniary jurisdiction is altered by an amendment, is a valid exercise
of power and there is no vested right to a forum. The Full Bench of the
High Court observed:
“11…The Supreme Court in the New India Assurance Co. Ltd.
(supra) considered the effect of section 110A of the Motor Vehicles
Act, 1939 by which Claims Tribunals were constituted for filing
claims arising out of motor vehicle accidents: The question was
whether with regard to the claims for compensation arising out of
an accident which took place after introduction of section 110A, a
suit will lie or a claim therefor shall have to be filed before the
Claims Tribunal. It was held by the Supreme Court that by section
110A there was no change in law, but merely change of forum i.e.
the change of adjectival or procedural law and not substantive
law. It was observed. “It is well established proposition that such
change of law operates retrospectively and the person has to go
to new forum even if his cause of action or right of action accrued
prior to the change of forum. He will have a vested right of action,
but not a vested right of forum”. It may be noticed that the language
of section 19 is not such as to interpret it that the Munsif and
Additional Munsif were given jurisdiction to hear suits of higher
value which were filed after the amendment of that section. For
this reason also, it must be held that the application of section 19
will be retrospective in the sense that it will apply to
the pending
suits. This proposition of law has been laid down in the New India
Assurance Co. Ltd., (supra).”
C.22 Y.B. Ramesh (2010- Karnataka HC- SJ)
52. The Karnataka High Court in Y.B. Ramesh v. Varalakshmi50,
held that a subsequent amendment to pecuniary jurisdiction is said to
have divested the concerned forum of its authority to hear the matter.
The Single Judge of the High Court relied on the decision in Sudhir G
Angur(supra) and observed:
“9. The main argument addressed by the learned Counsel for the
petitioner is that as on the date of filing of the suit, the Court has
no jurisdiction and hence, the plaint has to be rejected under Order
7, Rule 11(d) of CPC. The issue regarding law to be applied in
determining the jurisdiction of the Court, i.e., the law as existing
50 (2010) 6 Kant LJ 43
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on the date of institution of the suit or on the date on which, the
suit came up for hearing has to be applied. The Hon’ble Supreme
Court in a judgment cited supra (Sudhir G Angur), held as under:
“In our view Mr. G.L. Sanghi is also right in submitting that it is
the law on the date of trial of the suit which is to be applied. In
support of this submission, Mr. Sanghi relied upon the judgment in
Shiv Bhagwan Mod Ram Saraoji v. Onkarmal Ishar Dass, AIR
1952 Bom. 365, wherein it has been held that no party has a
vested right to a particular proceeding or to a particular forum. It
has been held that it is well-settled that all procedural laws are
retrospective unless the Legislature expressly states to the contrary.
It has been held that the procedural laws in force must be applied
at the date when the suit or proceeding comes on for trial or
disposal. It has been held that a Court is bound to take notice of
the change in the law and is bound to administer the law as it was
when the suit came up for hearing. It has been held that if a Court
has jurisdiction to try the suit, when it comes on for disposal, it
then cannot refuse to assume jurisdiction by reason of the fact
that it had no jurisdiction to entertain it at the date when it was
instituted. We are in complete agreement with these observations.
As stated above, the Mysore Act now stands repelled. It could
not be denied that now the Court has jurisdiction to
entertain this
suit”.
10. In view of the pronouncement of law by the Hon’ble Supreme
Court, the petitioner is not entitled for any relief. Further, even if
it is held that the Civil Judge (Junior Division) has no pecuniary
jurisdiction to entertain the suit, at the most, the Court can return
the plaint to the plaintiff to present before the appropriate Court.
In view of the amendment to the Civil Courts Act, the Civil Judge
(Junior Division), Magadi is the Competent Court to try the suit
and hence, I.A. No. 1 filed by the petitioner cannot be
entertained.”
C.23 Conclusion on the position of law
53. In considering the myriad precedents that have interpreted
the impact of a change in forum on pending proceedings and
retrospectivity- a clear position of law has emerged: a change in forum
lies in the realm of procedure. Accordingly, in compliance with the tenets
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of statutory interpretation applicable to procedural law, amendments on
matters of procedure are retrospective, unless a contrary intention
emerges from the statute. This position emerges from the decisions in
New India Assurance(supra), Maria Cristina(supra), Hitendra
Kumar Thakur(supra), Ramesh Kumar Soni(supra) and Sudhir G
Angur(supra). More recently, this position has been noted in a three
judge Bench decision of this Court in Manish Kumar v. Union of
India51. However, there was a deviation by a two judge bench decision
of this Court in Dhadi Sahu(supra), which overlooked the decision of a
larger three judge bench in New India Assurance(supra) and of a co-
ordinate two judge bench in Maria Cristina(supra). The decision in
Dhadi Sahu(supra) propounded a position that “no litigant has any
vested right in the matter of procedural law but where the question
is of change of forum it ceases to be a question of procedure only.
The forum of appeal or proceedings is a vested right as opposed to
pure procedure to be followed before a particular forum. The right
becomes vested when the proceedings are initiated in the tribunal.”
In taking this view, the two judge bench did not consider binding decisions.
Dhadi Sahu(supra) failed to consider that the saving of pending
proceedings in Mohd. Idris(supra) and Manujendra Dutt(supra) was
a saving of vested rights of the litigants that were being impacted by the
repealing acts therein, and not because a right to forum
is accrued once
proceedings have been initiated. Thereafter, a line of decisions followed
Dhadi Sahu(supra), to hold that a litigant has a crystallized right to a
forum once proceedings have been initiated. A litigant’s vested right
(including the right to an appeal) prior to the amendment or repeal are
undoubtedly saved, in addition to substantive rights envisaged under
Section 6 of the General Clauses Act. This protection does not extend to
pure matters of procedure. Repeals or amendments that effect changes
in forum would ordinarily affect pending proceedings, unless a contrary
intention appears from the repealing or amending statute.
54. It is relevant to note in this context that the decision in Ambalal
Sarabhai(supra) saved proceedings in relation to a benefit which
although not vested, accrued to the landlord to evict the tenant by virtue
of a proviso to a Section which accorded protection to the tenant from
ejectment. This Court reasoned that since the right of the landlord flows
from a Section which protects the tenant, it cannot be enlarged into a
51 Writ Petition (C) No. 26 of 2020, decided on 19 January 2021 (Supreme Court of
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vested right. However, Ambalal Sarabhai(supra) did not enunciate an
absolute proposition that the right to institute proceedings at a particular
forum is an accrued right, let alone a vested right. The dictum that a
change of forum is a procedural matter is not altered by the decision of
this Court in Ambalal Sarabhai(supra) which sought to differentiate
between vested rights and accrued rights, the latter being protected under
Section 6(c) of the General Clauses Act, the proceedings in relation to
which are protected under Section 6(e).
55. Now, it is in this backdrop, that we have to analyze the impact
of the Act of 2019 upon pending cases which were filed before the fora
constituted under the Act of 1986.
D Legislative Scheme of the jurisdictional provisions
56. Some of the salient aspects of the Act of 2019 insofar as
they pertain to the jurisdictional provisions need to be visited. The
pecuniary limits of the original jurisdiction of the District Commission
under Section 34(1) is to entertain complaints where the value of the
goods or services paid as consideration does not exceed a crore of
rupees.
57. An appeal lies to the SCDRC from an order of the District
Commission under Section 41. The second proviso to Section 41 stipulates
that an appeal shall not be entertained of a person who is required to pay
any amount under the order of the District Commission, unless the
appellant has deposited 50 per cent of the
decretal amount.
58. The SCDRC has, under Section 47(1)(a)(i), original jurisdiction
to entertain complaints subject to a pecuniary limit of not less than one
crore rupees and not exceeding rupees ten crores. The SCDRC has an
appellate jurisdiction under Section 47(1)(a)(iii), revisional jurisdiction
under Section 47(1)(b) and review jurisdiction under Section 50.
59. Section 51 provides an appeal to the NCDRC from an order
passed by the SCDRC in the exercise of its original jurisdiction to hear a
complaint [referable to sub-clauses (i) and (ii) of clause (a) of Section
47 (1)]. As in the manner of an appeal before the SCDRC against an
order of the District Commission, the second proviso to Section 51
provides that an appeal shall not be entertained at the behest of a person
who is required to pay any amount unless 50 per cent of the amount has
been deposited. Under sub-Section (2) of Section 51, an appeal before
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the NCDRC against an order of the SCDRC lies on a substantial question
of law.
60. The original jurisdiction of the NCDRC under Section 58(a)(1)
is to entertain complaints where the value of the goods or services paid
as consideration exceeds rupees ten crores and complaints against unfair
contracts of a similar value. The NCDRC is vested with an appellate
jurisdiction under Section 51, a revisional jurisdiction under Section
58(1)(b) and a review jurisdiction under Section 60. An appeal against
an order of the NCDRC passed in the exercise of its original jurisdiction
lies to this Court under Section 67. The second proviso of Section 67
requires a pre-deposit of 50 per cent of the amount ordered by the
NCDRC.
61. Under the earlier Act of 1986, the pecuniary limit of the
jurisdiction of (i) the District Commission was up to rupees 20 lacs under
Section 11(1); (ii) the SCDRC between rupees twenty lacs and rupees
one crores under Section 17(1); and (iii) the NCDRC above rupees one
crore under Section 21. The requirement of pre-deposit for filing an
appeal before the SCDRC against an order of the District Commission
was 50 per cent of the amount or twenty-five thousand rupees, whichever
is less (Section 15). A similar pre deposit was required for appeals to the
NCDRC against orders of the SCDRC (second proviso to Section 19).
An appeal before the NCDRC against an order of the SCDRC (Section
19) was not circumscribed by the requirement that it must raise a
substantial question of law. In Section 51(2) of the Act of 2019, an appeal
to the NCDRC lies on a substantial question of law.
E Legislative intendment underlying Section 107 of the Act
of 2019
62. Section 107(1) of the Act of 2019 repeals the Act of 1986. In
State of Rajasthan v. Mangilal Pindwal52, this Court accepted the
principle that the effect of a repeal, in the absence of a savings clause or
a general savings statute, is that “a statute is obliterated” subject to the
exception that it exists in respect of transactions past and closed. Section
107 (2) has saved “the previous operation” of any repealed enactment
or “anything duly done or suffered thereunder to the extent that it is not
inconsistent with the provisions of the new legislation”. Finally, Section
107(3) indicates that the mention of particular matters in sub-Section (2)
52 (1996) 5 SCC 60
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will not prejudice or affect the general application of Section 6 of the
General Clauses Act.
63. Section 6 of the General Clauses Act provides governing
principles with regard to the impact of the repeal of a central statute or
regulation. These governing principles are to apply, “unless a different
intention appears”. Clause (c) of Section 6 inter alia stipulates that a
repeal would not affect “any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment so repealed”. The
right to pursue a validly instituted consumer complaint under the Act
of 1986 is a right which has accrued under the law which was repealed.
Clause (e) of Section 6 stipulates that the repeal will not affect, inter
alia, any
“legal proceeding or remedy” in respect of any such right…as
aforesaid”. Any such legal proceedings may be continued as if the
repealing legislation had not been passed. Clause (c) of Section 6 has
the effect of preserving the right which has accrued. Clause (e) ensures
that a legal proceeding which has been initiated to protect or enforce
“such right” will not be affected and that it can be continued as if the
repealing legislation has not been enacted. The expression such a right
in clause (e) evidently means the right which has been adverted to in
clause (c). The plain consequence of clause (c) and clause (e), when
read together is two- fold: first, the right which has accrued on the date
of the institution of the consumer complaint under the Act of 1986 (the
repealing law) is preserved; and second, the enforcement of the right
through the instrument of a legal proceeding or remedy will not be
affected by the repeal.
64. Having stated the above position, we need to harmonize it
with the principle that the right to a forum is not an accrued right, as
discussed in Part C of this judgement. Simply put, while Section 6(e) of
the General Clauses Act protects the pending legal proceedings for the
enforcement of an accrued right from the effect of a repeal, this does
not mean that the legal proceedings at a particular forum are saved
from the effects from the repeal. The question whether the pending
legal proceedings are required to be transferred to the newly created
forum by virtue of the repeal would still persist. As discussed, this
Court in New India Assurance(supra) and Maria Christina(supra)
has held that forum is a matter pertaining to procedural law and therefore
the litigant has to pursue the legal proceedings at the forum created by
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the repealing act, unless a contrary intention appears. This principle
would also apply to pending proceedings, as observed in Ramesh
Kumar Soni(supra), Hitendra Kumar Thakur(supra) and Sudhir
G Angur(supra). In this backdrop, what is relevant to ascertain is
whether a contrary intent to the general rule of retrospectivity has
been expressed under the Act of 2019 to continue the proceedings at
the older forum.
65. Now, in considering the expression of intent in the repealing
enactment in the present case, it is apparent that there is no express
language indicating that all pending cases would stand transferred to the
fora created by the Act of 2019 by applying its newly prescribed pecuniary
limits. In deducing whether there is a contrary intent, the legislative
scheme and procedural history may provide a relevant insight into the
intention of the legislature.
66. The Act of 2019, as indicated by its long title, is enacted to
provide “for protection of the interests of consumers”. The Statement
of Objects and Reasons took note of the tardy disposal of cases under
the erstwhile legislation. Thus, the necessity of inducing speed in disposal
was to protect the rights and interests of consumers. The Act of 2019
has taken note of the evolution of consumer markets by the proliferation
of products and services in light of global supply chains, e- commerce
and international trade. New markets have provided a wider range of
access to consumers. But at the same
time, consumers are vulnerable
to exploitation through unfair and unethical business practices. The Act
has sought to address “the myriad and constantly emerging vulnerabilities
of the consumers”. The recurring theme in the new legislation is the
protection of consumers which is sought to be strengthened by procedural
interventions such as strengthening class actions and introducing mediation
as an alternate forum of dispute resolution.
67. In this backdrop, something specific in terms of statutory
language - either express words or words indicative of a necessary
intendment would have been required for mandating the transfer of
pending cases. One can imagine the serious hardship that would be
caused to the consumers, if cases which have been already instituted
before the NCDRC were required to be transferred to the SCDRCs as
a result of the alteration of pecuniary limits by the Act of 2019. A consumer
who has engaged legal counsel at the headquarters of the NCDRC would
have to undertake a fresh round of legal representation before the
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SCDRC incurring expense and engendering uncertainty in obtaining
access to justice. Likewise, where complaints have been instituted before
the SCDRC, a transfer of proceedings would require consumers to obtain
legal representation before the District Commission if cases were to be
transferred. Such a course of action would have a detrimental impact on
the rights of consumers. Many consumers may not have the wherewithal
or the resources to undertake a fresh burden of finding legal counsel to
represent them in the new forum to which their cases would stand
transferred.
68. It would be difficult to attribute to Parliament, whose purpose
in enacting the Act of 2019 was to protect and support consumers with
an intent that would lead to financial hardship, uncertainty and expense
in the conduct of consumer litigation. Ironically, the objection which has
been raised in the present case to the continued exercise of jurisdiction
by the NCDRC in regard to the consumer complaint filed by the appellant
is by the developer who is the respondent herein. It is a developer who
opposed the continuation of the proceedings before the NCDRC on the
ground that under the new consumer legislation the pecuniary limits of
the jurisdiction exercisable by the NCDRC have been enhanced and the
complaint filed by the appellant which was validly instituted under the
erstwhile law should be transferred to the SCDRC. Such a course of
action will
result in thousands of cases being transferred across the
country, from the NCDRC to the SCDRCs and from the SCDRCs to
the District Commission.
69. Data drawn from annual reports of the Union Ministry of
Consumer Affairs indicates pendency from financial year 2015-16 to
financial year 2019-20:
Report for FY 2015-16 (figures as on 31.12.2015)53
53 https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/
1535004604_AR_2015- 16.pdf , page 34

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54 https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/
1535004643_AR_2016- 17.pdf , page 47
55 https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/
1535004742_AR_2017- 18.pdf , page 49
56 https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/_. , page 41
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Report for FY 2016-17 (figures as on 31.12.2016)54
Report for FY 2017-18 (figures as on 29.01.2018)55
Report for FY 2018-19 (figures as on 31.03.2019)56
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Report for FY 2019-20 (figures as on 31.10.2019)57
The above data indicates that as on 31 October 2019, 21,216 cases
were pending before the NCDRC and 1,25,156 cases were pending
before the SCDRC. Many of these cases would have to be transferred
if the view which the developer propounds is upheld. This will seriously
dislocate the interests of consumers in a manner which defeats the object
of the legislation, which is to protect and promote their welfare. Clear
words indicative of either an express intent or an intent by necessary
implication would be necessary to achieve this result. The Act of 2019
contains no such indication. The transitional provisions contained in
Sections 31, 45 and 56 expressly indicate that the adjudicatory personnel
who were functioning as Members of the District Commission, SCDRC
and NCDRC under the erstwhile legislation shall continue to hold office
under the new legislation. Such provisions are necessary because persons
appointed to the consumer fora under the Act of 1986 would have
otherwise demitted office on the repeal of the legislation. The legislature
cannot be attributed to be remiss in not explicitly providing for transfer
of pending cases according to the new pecuniary limits set up for the
fora established by the new law, were that to be its intention. The
omission, when contextualized against the statutory scheme, portends
a contrary intention to protect pending proceedings
through Section
107(2) of the Act of 2019. This intention appears likely, particularly in
light of previous decisions of the NCDRC which had interpreted
amendments that enhanced pecuniary jurisdiction, with prospective
effect. The NCDRC, in Southfield Paints and Chemicals Pvt. Ltd.
v. New India Assurance Co. Ltd.58 construed amending Act 62 of
57 https://consumeraffairs.nic.in/sites/default/files/file- uploads/annualreports/
1596167686_Annual%20Report%202019-20.pdf page 45
58 Consumer Case No. 286 of 2000 (NCDRC)
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2002 by which the pecuniary limits of jurisdiction were enhanced with
effect from 15 March 2003 as prospective by relying on its earlier
decision in Premier Automobiles Ltd. v. Dr Manoj
Ramachandran59, where the NCDRC held that the amendments
enhancing the pecuniary jurisdiction are prospective in nature [albeit
on a reliance of the principle in Dhadi Sahu(supra)]. Parliament would
be conscious of this governing principle and yet chose not to alter it in
its application to the consumer fora.
70. It is accepted, that in defining the jurisdiction of the District
Commission, Section 34 of the Act of 2019 entrusts the jurisdiction to
“entertain” complaints. A similar provision is contained in Section 47
and Section 58 in regard to the SCDRC and NCDRC. The expression
“entertain” has been considered in a two judge Bench decision of this
Court in Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead)
Through Legal Representatives60, in the context of the provisions
of Order XXI Rule 90 of the CPC. The Court has accepted that the
expression “entertain” means to adjudicate upon or proceed to consider
on merits. In Nusli Neville(supra), while considering the provisions
of Section 9A of the CPC as inserted by a Maharashtra Amendment,
a two judge Bench followed the exposition in Hindusthan
Commercial Bank(supra). Undoubtedly, the expression “entertain”
has been construed in the context of Section 9A of the Code of Civil
Procedure, as amended in Maharashtra, by a three
judge Bench of
this Court in Nusli Wadia(supra) to mean “to adjudicate upon or to
proceed to consider on merits”. Sections 34, 47 and 58 similarly indicate
that the respective consumer fora can entertain complaints within the
pecuniary limits of their jurisdiction. These provisions will undoubtedly
apply to complaints which were instituted after the Act of 2019 came
into force. However, the mere use of the word “entertain” in defining
jurisdiction is not sufficient to counteract the overwhelming legislative
intention to ensure consumer welfare and deliberately not provide for
a provision for transfer of pending proceedings in the Act of 2019 or
under Section 106 of the Act of 2019 which is a power to remove
difficulties for a period of two years after the commencement of the
Act of 2019.
59 Revision Petitions Nos 400 to 402 of 1993 (NCDRC)
60 “Hindusthan Commercial Bank”; (1971) 3 SCC 124
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F Summation
71. For the above reasons, we have come to the conclusion that
proceedings instituted before the commencement of the Act of 2019 on
20 July 2020 would continue before the fora corresponding to those
under the Act of 1986 (the National Commission, State Commissions
and District Commissions) and not be transferred in terms of the pecuniary
jurisdiction set for the fora established under the Act of 2019. While
allowing the appeals, we issue the following directions:
(i)
The impugned judgment and order of the NCDRC dated
30 July 2020 and the review order dated 5 October 2020,
directing a previously instituted consumer case under the
Act of 1986 to be filed before the appropriate forum in
terms of the pecuniary limits set under the Act of 2019,
shall stand set aside;
(ii)
As a consequence of (i) above, the National Commission
shall continue hearing the consumer case instituted by the
appellants;
(iii)
All proceedings instituted before 20 July 2020 under the
Act of 1986 shall continue to be heard by the fora
corresponding to those designated under the Act of 1986
as explained above and not be transferred in terms of the
new pecuniary limits established under the Act of 2019;
and
(iv)
The respondent shall bear the costs of the appellant
quantified at Rupees Two lakhs which shall be payable within
four weeks.
72. The appeals are allowed in the above terms.
73. Pending application(s), if any, stand disposed of.
Divya Pandey
Appeals allowed.