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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 117 OF 2005

Videocon International Ltd. … Appellant

versus

Securities & Exchange Board of India … Respondent

J U D G M E N T

Jagdish Singh Khehar, J.

1. The  Securities  and  Exchange  Board  of  India  Act,  1992  (hereinafter  

referred to as, the SEBI Act) was enacted to protect the interests of investors  

in securities and to promote the development of, and to regulate, the securities  

market.  The Securities and Exchange Board of India (hereinafter referred to  

as,  the Board)  was vested with statutory powers to effectively  deal  with all  

matters relating to the capital market.

2. The functions of  the Board have been depicted in Section 11 of  the  

SEBI Act.  Under Section 11 of the SEBI Act, the powers of the Board include,  

the  power  to  suspend  the  trading  of  any  security  in  a  recognized  stock-

exchange;  the  power  to  restrain  from accessing  the  securities  market  and  

prohibit any person associated with the securities market from buying, selling  

or dealing in securities; the power to suspend any office-bearer of any stock-

exchange or self-regulatory organization from holding such position; the power

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to impound and retain the proceeds or securities in respect of any transaction  

which is under investigation; the power to attach after passing of an order on  

an application  made for  approval  (by  the Judicial  Magistrate  of  First  Class  

having jurisdiction) for a period not exceeding one month, one or more bank  

account(s) of any intermediary or any person associated with the securities  

market  in any manner involved in violation of any of the provisions of the SEBI  

Act, or the rules/regulations framed thereunder; and the power to direct any  

intermediary  or  any  person  associated  with  the  securities  market  in  any  

manner not to dispose of or alienate an asset forming part of any transaction  

which  is  under  investigation.   If  the  Board  finds  (on  investigation),  that  a  

person has violated (or is likely to violate) any provision of the SEBI Act, or any  

rules/regulations made thereunder, the Board is authorized under Section 11D  

of the SEBI Act, to pass an order requiring the person concerned, to cease  

and desist from committing or causing such violation.

3. Chapter  VIA of  the SEBI Act provides for penalties and adjudication.  

Under Chapter VIA, a penalty can be levied, for failure to furnish information,  

return or report to the Board (Section 15A, inserted with retrospective effect  

from 25.1.1995); a penalty can be imposed, for failure by any person to enter  

into  such  agreement,  as  he  may  be  required  (Section  15B,  inserted  with  

retrospective effect from 25.1.1995); a penalty can also be inflicted, for failure  

to  redress  investors’  grievances  (Section  15C,  inserted  with  retrospective  

effect from 29.10.2002); a penalty can be foisted, for certain defaults in case of  

mutual funds (Section 15D, inserted with retrospective effect from 25.1.1995);  

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a penalty can be levied, for failure to observe rules and regulations by an asset  

management  company (Section 15E, inserted with retrospective effect  from  

25.1.1995);  a  penalty  can be inflicted,  for  default  in  case of  stock brokers  

(Section 15F, inserted with retrospective effect from 25.1.1995); a penalty can  

be imposed, for insider trading (Section 15G, inserted with retrospective effect  

from 25.1.1995); a penalty can be demanded, for non-disclosure of acquisition  

of shares and take-overs (Section 15H, inserted with retrospective effect from  

25.1.1995/29.10.2002); a penalty can be levied, for fraudulent and unfair trade  

practices (Section 15HA, inserted with retrospective effect from 29.10.2002); a  

penalty can be levied, for contravention, where no separate penalty has been  

provided (Section 15HB, inserted with retrospective effect from 29.10.2002).  

Under  Section 15-I  of  the SEBI Act,  the Board is  mandated  to appoint  an  

‘adjudicating officer’ (not below the rank of a Division Chief), for deciding the  

quantum of penalty to be imposed under Sections 15A to 15HB of the SEBI  

Act.

4. A remedy of  appeal  to the Securities  Appellate  Tribunal  (established  

under  Section  15K,  by  insertion  of  Chapter  VIB  into  the  SEBI  Act,  with  

retrospective effect from 25.1.1995) was provided for under Section 15T of the  

SEBI Act, to a person aggrieved of an order passed by the Board, or by an  

‘adjudicating officer’  (for details,  refer to the preceding two paragraphs).   A  

further remedy of appeal, was provided from an appellate order passed by the  

Securities  Appellate  Tribunal,  vide  Section  15Z  (inserted  with  retrospective  

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effect from 15.1.1995).  Section 15Z of the SEBI Act (as has been referred to  

above), is being extracted hereunder:-

“15Z. Appeal to High Court- Any  person  aggrieved  by  any  decision  or  order  of  the  Securities  Appellate Tribunal may file an appeal to the High Court within sixty days  from the date of communication of the decision or order of the Securities  Appellate Tribunal to him  on any question of fact or law arising out of  such order."  

(emphasis is ours)

A perusal of Section 15Z reveals, that when the second appellate remedy was  

made  available  to  an  aggrieved  party  for  the  first  time,  the  forum for  the  

second  appeal  was  the  High  Court.   And  second  appellate  remedy  was  

available on questions of fact, as also, questions of law.

5. Section 15Z of the SEBI Act as originally enacted, was amended with  

retrospective effect, from 29.10.2002.  The above amendment to Section 15Z,  

was  brought  into  force  by  the  Securities  and  Exchange  Board  of  India  

(Amendment)  Ordinance,  2002.   The  Ordinance  was  replaced  by  the  

Securities and Exchange Board of India (Amendment) Act, 2002.  Section 15Z,  

as amended is reproduced hereunder:-

“15Z. Appeal to Supreme Court- Any  person  aggrieved  by  any  decision  or  order  of  the  Securities  Appellate Tribunal may file an appeal to the Supreme Court within sixty  days from the date of  communication of  the decision or  order of  the  Securities Appellate Tribunal to him on any question of law arising out of  such order.

Provided that the Supreme Court may, if it is satisfied that the applicant  was prevented by sufficient cause from filing the appeal within the said  period,  allow it  to be filed within a further period not  exceeding sixty  days.”

(emphasis is ours)

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A perusal of Section 15Z, as amended, reveals that the forum of the second  

appellate remedy was changed from the High Court, to the Supreme Court.  

And the second appellate remedy was limited to questions of law alone, and  

not on questions of fact.

6. Through the present Civil Appeal no. 117 of 2005 (arising out of Special  

Leave Petition (Civil) no. 3221 of 2004), the appellant has impugned the order  

passed by the High Court of Judicature at Bombay (hereinafter referred to as,  

the High Court), on 13.10.2003.  The High Court, through the impugned order  

had examined Section 15Z of the SEBI Act (as amended by the Securities and  

Exchange  Board  of  India  (Amendment)  Act,  2002).   The  issue  for  

determination before the High Court was, whether the aforesaid amendment to  

Section 15Z of the SEBI Act, would operate prospectively or retrospectively.  

Appeals had been preferred by the Board, before the High Court assailing the  

orders  passed  by  the  Securities  Appellate  Tribunal.   All  the  orders  under  

challenge,  had  been  passed  by  the  Securities  Appellate  Tribunal  before  

29.10.2002.  Some appeals were preferred before 29.10.2002, and one of the  

appeals was preferred after 29.10.2002.  The question which had arisen for  

adjudication before the High Court was, whether an appeal would lie to the  

High Court, after the amendment of Section 15Z of the SEBI Act.  The Board  

which  had  preferred  the  appeals,  asserted,  that  all  the  appeals  were  

maintainable.  The appellant before us, felt otherwise.

7. The High Court by the impugned order arrived at the conclusion, that  

such of  the appeals as had been filed before the coming into force of  the  

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amended Section 15Z, would not be affected by the amendment, and the High  

Court had the jurisdiction to hear and dispose of the same.   The High Court  

also concluded, that such of the appeals as had been filed after the coming  

into force of the amended Section 15Z, would not be maintainable.   

8. The instant appeal has arisen with reference to the appeals which have  

been  held  as  maintainable  by  the  High  Court.   According  to  the  learned  

counsel for the appellant, where the repealing Act provides for a new forum  

(as in the instant case), the original remedy (or legal proceedings) cannot be  

pursued after the repeal, the remedy before the new forum alone would be  

available.

9. Insofar  as the factual  aspect  of  the present  matter  is concerned,  the  

impugned  order  which  was  assailed  before  the  High  Court,  under  the  

unamended Section 15Z was disposed of before 29.10.2002.  And therefore it  

was felt, that the remedy available at the time when the impugned order was  

passed, had to be pursued.  Therefore, the pointed question to be determined  

by this Court, in the present appeal would be, whether an order passed by the  

Securities Appellate Tribunal  before 29.10.2002 would be appealable under  

the  unamended provision  of  Section  15Z of  the  SEBI Act  before  the  High  

Court,  or  alternatively,  whether  the  same  would  be  appealable  under  the  

amended provision of Section 15Z of the SEBI Act before the Supreme Court.  

And also, whether the date on which the Board had preferred the appeals, was  

a relevant consideration, in the facts and circumstances of the present case.

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10. In  order  to  canvass  the  proposition  which  has  arisen  in  the  present  

controversy, learned counsel for the appellant has vehemently contended, that  

the amendment of Section 15Z, having only brought about a change in the  

forum,  would  be  deemed  to  have  amended  a  procedural  provision.  

Accordingly it was the submission of the learned counsel, that the afore-stated  

amendment  would  be  deemed  to  be  retrospective,  specially  because  no  

vested  right  can  be  deemed  to  have  been  taken  away.   It  was  also  the  

vehement contention of the learned counsel, that in the absence of a saving  

clause, the pending proceedings and jurisdiction of the High Court, cannot be  

deemed to have been saved.  It was the contention of the learned counsel,  

that a case cannot be deemed to have been entertained by a Court, till the  

Court applies its mind, and as such, even the appeals preferred before the  

amended Section 15Z took effect retrospectively from 29.10.2002, would be  

governed by the amended provision, rather than the unamended Section 15Z  

of the SEBI Act.

11. In  order  to  support  his  aforesaid  contention,  learned  counsel  for  the  

appellant submitted, that Sections 15Y and 15Z of the SEBI Act had to be  

considered together.  Section 15Y is being extracted hereunder:-

“15Y. Civil  court  not  to  have  jurisdiction-  No  civil  court  shall  have  jurisdiction to entertain any suit or proceeding in respect of any matter  which an adjudicating officer appointed under this Act or a Securities   Appellate Tribunal constituted under this Act is empowered by or under  this Act to determine and no injunction shall be granted by any court or  other authority in respect of any action taken or to be taken in pursuance  of any power conferred by or under this Act.”

(emphasis is ours)

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On the basis of Section 15Y extracted above, it  was the submission of the  

learned counsel for the appellant, that the powers of civil courts to entertain  

issues emerging out of the provisions of the SEBI Act were expressly taken  

away.   Section  15Y,  according  to  the  learned  counsel  for  the  appellant,  

excluded  even  the  jurisdiction  of  the  High  Court,  with  respect  to  the  civil  

jurisdiction  vested  in  the  High  Court,  in  respect  of  matters  entrusted  for  

adjudication,  by  the  SEBI  Act,  with  the  adjudicating  officer  or  with  the  

Securities Appellate Tribunal.  In fact,  according to the learned counsel,  the  

mandate of  Section 15Y of the SEBI Act,  debarred a civil  court  from even  

granting  an  injunction  in  respect  of  any  action  taken  (or  to  be  taken)  in  

pursuance  of  any  power  conferred  by  or  under  the SEBI  Act.   It  was the  

contention of the learned counsel, that Section 15Z of the SEBI Act, should be  

examined in the background of the intent expressed by the legislature through  

Section 15Y.  

12. In  conjunction  with  the  above  submission,  learned  counsel  for  the  

appellant invited the Court’s attention to Sections 27 and 32 of the Securities  

and Exchange Board of India (Amendment) Act, 2002, which are reproduced  

hereunder:-

“27. Substitution of new Section for Section 15Z-  For Section 15Z of  the  principal  Act,  the  following  section  shall  be  substituted,  namely:-  “15Z.   Appeal  to  Supreme  Court  -   Any  person  aggrieved  by  any  decision or order of the Securities Appellate Tribunal may file an appeal  to the Supreme Court within sixty days from the date of communication  of the decision or order of the Securities Appellate Tribunal to him on  any  question  of  law  arising  out  of  such  order:   Provided  that  the  Supreme Court may, if it is satisfied that the applicant was prevented by  sufficient cause from filing the appeal within the said period, allow it to  be filed within a further period not exceeding sixty days.

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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."

(emphasis is ours)

Drawing  the  Court’s  attention  to  Section  32,  the  contention  of  the  learned  

counsel for the appellant was, that in the absence of any saving clause, which  

may have had the effect of preserving, protecting, securing or sustaining the  

jurisdiction vested in respect of appeals pending before the High Court, all the  

pending appeals would have to be adjudicated by the substituted forum, after  

the amendment of Section 15Z of the SEBI Act.  On the instant score, the  

further  submission  of  the  learned  counsel  was,  that  whilst  amendment  to  

procedure had generally  retrospective effect,  an amendment  to a provision  

vesting a substantive right was generally prospective.   

13. In order to support his contentions, learned counsel for the appellant,  

placed reliance on the decision in Colonial Sugar Refining Co. Ltd. v. Irving,  

1905 AC 369.  In the judgment relied upon, a right of appeal was available  

from the Supreme Court of Queensland, to the King in Council.  The aforesaid  

right  was taken away by the Australian Commonwealth Judiciary Act, 1903  

(hereinafter  referred  to  as,  the 1903 Act).   Section 39(2)  of  the 1903 Act,  

provided for an appeal from the Supreme Court of Queensland, to the High  

Court of Australia.  The question which arose for determination was, whether  

from a suit  pending when the 1903 Act  was enacted,  a remedy of  appeal  

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would lie before the King in Council or before the High Court of Australia.  In  

the judgment relied upon, the Privy Council held as under:-

“As regards the general principles applicable to the case there was no  controversy.  On the one hand, it was not disputed that if the matter in  question be a matter of procedure only, the petition is well founded. On  the other hand, if it be more than a matter of procedure, if it touches a  right in existence at the passing of the Act, it was conceded that, in   accordance with a long line of authorities extending from the time of   Lord  Coke  to  the  present  day,  the  appellants  would  be  entitled  to   succeed. The Judiciary Act is not retrospective by express enactment or  by necessary 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  the  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 is ours)

14. Learned  counsel  for  the  appellant  pointed  out,  that  the  decision  

rendered by the Privy Council in Colonial Sugar Refining Co. Ltd. case (supra)  

was followed by this Court in Hoosein Kasam Dada (India) Ltd. v. State of  

Madhya  Pradesh,  AIR  1953  SC  221.   The  issue  which  came  up  for  

consideration in Hoosein Kasam Dada (India) Ltd. case (supra) was in respect  

of  the  return  filed  by  the  appellant  under  the  Berar  Sales  Tax  Act,  1947  

(hereinafter  referred  to  as,  the  1947  Act).   The  1947  Act  was  amended,  

requiring  the  payment  of  the  entire  assessed  amount,  as  a  condition  

precedent,  to the admission of  an appeal.   The Assistant Commissioner to  

whom the return was transferred for disposal, made an assessment, against  

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which the appellant preferred an appeal, without depositing the assessed tax.  

The Board of Revenue was of the view, that Section 22(1) of the 1947 Act as  

amended, applied to the case, as the assessment was made, and the appeal  

had  been  preferred,  after  the  amendment  came  into  force.   The  appeal  

accordingly came to be rejected.  In further appeal, this Court following the  

decision of the Privy Council in Colonial Sugar Refining Co. Ltd. case (supra),  

as well as certain other decisions held, that a right of appeal was not merely a  

matter  of  procedure.   An appellate remedy,  it  was held,  was a substantive  

right.  The right of appeal from the decision of an inferior Tribunal, becomes  

vested  in  a  party,  when  proceedings  were  first  initiated  before  an  inferior  

Court.  Such a vested right, it was held, could not be taken away except by an  

express  enactment  or  by  necessary  intendment.   Accordingly,  it  was  

concluded, that the earlier provision which created the right of appeal, would  

continue to apply.  The unamended provision was held, to govern the exercise  

and enforcement of the right of an appeal.  It  is thus concluded, that there  

could be no question of the amended provision divesting the aggrieved party  

of its right to appeal.

15. Eventually, the above proposition of law, according to learned counsel,  

came  to  be  crystallized  by  the  Constitution  Bench  judgment  in  Garikapati  

Veeraya  v.  N.  Subbiah  Choudhary,  AIR 1957  SC 540,  wherein  this  Court  

recorded its conclusions in paragraph 23, which is being extracted hereunder:-

“23. From the decisions cited above the following principle clearly   emerge :

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(i) That the legal pursuit of a remedy, suit, appeal and second appeal  are really but steps in a series of proceedings all connected by an   intrinsic unity and are to be regarded as one legal proceeding.

(ii)  The right of appeal  is not a mere matter of procedure but is a   substantive right.

(iii) The institution of the suit carries with it the implication that all rights  of appeal then in force are preserved to the parties there to till the rest  of 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.

(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 is ours)

The aforesaid conclusions, came to be applied in Garikapati Veeraya’s case  

(supra),  as  is  apparent  from  an  extract  of  the  judgment,  which  is  being  

reproduced hereunder:-

“24. In the case before us the suit was instituted on April 22, 1949, and  on the principles established by the decisions referred to above the right  of appeal vested in the parties thereto at that date and is to be governed  by the law as it prevailed on that date, that is to say, on that date the  parties acquired the right, if unsuccessful, to go up in appeal from the  sub-court  to  the High Court  and from the High  Court  to  the Federal  Court under the Federal Court (Enlargement of Jurisdiction) Act, 1947  read with Cl. 39 of the Letters Patent and Ss. 109 and 110 of the  Code  of Civil Procedure provided the conditions thereof were satisfied.  The  question for our consideration is whether that right has been taken away  expressly or by necessary intendment by any subsequent enactment.  That respondents to the application maintain that it has been so taken  away by the provisions of our Constitution.”

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relying on the conclusions drawn by this  Court  in Dayawati  v.  Inderjit,  AIR  

1966 SC 1423, and Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4  

SCC 602, as also, on K.S. Paripoornan v. State of Kerala, (1994) 5 SCC 593,  

and noticing extracts therefrom, in paragraphs 25, 26 and 27 respectively, this  

Court  recorded its conclusions in paragraph 28.   Paragraphs 25 to 28 are  

accordingly being extracted hereunder:-

“25. In Dayawati v. Inderjit, AIR 1966 SC 1423, it is held thus:

"10. Now  as  a  general  proposition,  it  may  be  admitted  that  ordinarily a court of appeal cannot take into account a new law.,  brought into existence after the judgment appealed from has been  rendered,  because  the  rights  of  the  litigants  in  an  appeal  are  determined under the law in force at the date of the suit. Even  before the days of Coke whose maxim - a new law ought to be  prospective,  not  retrospective  in  its  operation  -  is  oft-quoted,  courts  have  looked with  disfavour  upon  laws which  take  away  vested rights or affect pending cases.  Matters of procedure are,  however,  different  and  the  law  affecting  procedure  is  always  retrospective. But is does not mean that there is an absolute rule  of  inviolability  of  substantive  rights.  If  the  new  law  speaks  in  language, which, expressly or by clear intendment, takes in even  pending matters, the court of trial as well as the court of appeal  must have regard to an intention so expressed, and the court of  appeal may give effect to such a law even after the judgment of  the court of first instance."

26. In Hitendra  Vishnu  Tahkur v. State  of  Maharashtra,  (1994)  4  SCC  602,  this  Court  laid  down  the  ambit  and  scope  of  an  amending act and its retrospective option 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 as 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.

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(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.

(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  retrospective where the result would be to create new disabilities  or obligations or to impose new duties in respect of transactions  already accomplished.

(v)  a  statute  which  not  only  changes  the  procedure  but  also  creates  new  rights  and  liabilities  shall  be  construed  to  be  prospective  in  operation  unless  otherwise  provided,  either  expressly or by necessary implication."

27. In K.S. Paripoornan v. State of Kerala, (1994) 5 SCC 593, this  Court while considering the effect of amendment  in  the  Land  Acquisition Act in pending proceedings held thus:

"67. In the instant case we are concerned with the application of  the provisions of sub-section (1-A) of Section 23 as introduced by  the Amending Act to acquisition proceedings which were pending  on the date of commencement of the Amending act. In relation to  pending proceedings,  the approach of  the courts  in  England is  that the same are unaffected by the changes in the law so far as  they relate to the determination of the substantive rights and in the  absence  of  a  clear  indication  of  a  contrary  intention  in  an  amending enactment, the substantive rights of the parties to an  action fall  to the determined by the law as it  existed when the  action was commenced and this is so whether the law is change  before the hearing of  the case at the first  instance or while an  appeal  is  pending  (See Halsbury's  Laws of  England,  4th Edn.,  Vol. 44, para 922)".

28. From the aforesaid decisions the legal position that emerges is  that  when  a  repeal  of  an  enactment  is  followed  by  a  fresh  legislation, such legislation does not effect the substantive rights  of the parties on the date of suit or adjudication of suit unless  such a legislation is retrospective and a court of appeal cannot  take into consideration a new law brought into existence after  the judgment  appealed from has been rendered because the  rights of the parties in an appeal are determined under the law  in force on the date of  the suit.  However,  the position in law  would be different in the matters which relate to procedural law  

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but so far as substantive rights of parties are concerned they  remain unaffected by the amendment in the enactment.  We are, therefore, of the view that where a repeal of provisions  of an enactment is followed by fresh legislation by an amending  Act,  such legislation is prospective in operation and does not  effect  substantive or vested rights of  the parties unless made  retrospective either expressly or by necessary intendment. We  are further of the view that there is a presumption against the  retrospective operation of a statue and further a statute is not to  be construed to have a greater retrospective operation than its  language renders necessary, but an amending act which affects  the procedure is presumed to be retrospective, unless amending  act provides otherwise. We have carefully looked into the new  substituted  section     15     brought  in  the  parent  Act  by  the    Amendment Act, 1995 but do not find it either expressly or by  necessary  implication  retrospective  in  operation  which  may  affect the rights of the parties on the date of adjudication of suit  and the same is required to be taken into consideration by the  appellate Court. In Shanti Devi v. Hukum Chand, (1996) 5 SCC  768,  this  Court  had  occasion  to  interpret  the  substituted  section 15 with which we are concerned and held that on a plain  reading  of  section 15, it  is  clear  that  it  has  been  introduced  prospectively and there is no question of such section affecting  in any manner the judgment and decree passed in the suit for  pre-emption affirmed by the High Court in the second appeal.  We are respectfully in agreement with the view expressed in the  said  decision  and  hold  that  the  substituted  Section     15     in  the    absence of anything in it to show that it is retrospective, does  not effect the right of the parties which accrued to them on the  date of suit or on the date of passing of the decree by the Court  of first instance. We are also of the view that present appeals  are  unaffected  by  change  in  law  insofar  it  related  to  determination of  the substantive  rights  of  the parties  and the  same are required to be decided in light of law of pre-emption as  it existed on the date of passing of the decree.”

(emphasis is ours)

16. Learned  counsel  for  the  appellant,  however  pointed  out,  that  the  

conclusions  drawn  by  this  Court,  on  the  issue  of  prospectivity  and  

retrospectivity, with reference to substantive rights and procedural provisions,  

fully  support  the  appellants’  prayers  in  the  instant  appeal,  for  the  simple  

reason, that the amendment to Section 15Z of the SEBI Act does not deprive  

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the appellant, of the right to second appeal.  In this behalf it was submitted,  

that  the  right  of  first  appeal  is  before  the  Securities  Appellate  Tribunal,  

whereas, the right to second appeal was before the High Court, prior to the  

amendment  under  consideration.   Consequent  upon  the  amendment  of  

Section 15Z (with effect from 29.10.2002), the right to second appeal, which  

earlier  lay  before  the High Court,  has now been vested with  the Supreme  

Court.  According to learned counsel the right of second appeal, which was a  

vested substantive right,  remains preserved,  even after the amendment.   It  

was therefore pointed out, that only the forum of the second appeal, had been  

altered, from the High Court (where it lay, under the unamended provision) to  

the Supreme Court of India (where it now lies, after the amendment).  It was  

contended, that whilst the right of second appeal  was a vested substantive  

right; the forum before which an appeal lies had a procedural perspective, and  

had no similar connotation.

17. In support of his above submission, learned counsel for the appellant, in  

the first instance, placed reliance on Maria Cristina De Souza Sodder v. Amria  

Zurana  Pereira  Pinto,  (1979)  1  SCC  92  and  invited  our  attention  to  the  

following observations recorded therein:-

“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 XXX of 1965) read  with the provisions of the Goa, Daman & Diu Civil  Court  Act, 1965  (Goa Act XVI 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 XXX of 1965  with  effect  from  June  15,  1966  the  provisions  of  the  Indian  Civil  Procedure  Code  were  extended  to  the  Union  Territories  of  Goa,  

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(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 texturally  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.

(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 is ours)

In this behalf, reliance was also placed on Thirumalai Chemicals Ltd. v. Union  

of  India,  (2011)  6  SCC 739 and our  attention  was  invited  to  the  following  

observations recorded therein:-

“24. Right of appeal may be a substantive right but the procedure for  filing the appeal including the period of limitation cannot be called a  substantive right, and an aggrieved person cannot claim any vested  right  claiming  that  he  should  be  governed  by  the  old  provision   pertaining  to  period  of  limitation.  Procedural  law  is  retrospective   meaning thereby that it will apply even to acts or transactions under   the repealed Act.

25. Law on the subject has also been elaborately dealt with by this  Court in various decisions and reference may be made to few of those  decisions.  This Court in Garikapati Veeraya v. N. Subbiah Choudhry,  AIR 1957 SC 540, New India Insurance Company Limited v. Shanti   Mishra,  (1975)  2  SCC  840, Hitendra  Vishnu  Thakur v. State  of   Maharashtra,  (1994) 4 SCC 602, Maharaja Chintamani Saran Nath   

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Shahdeo v. State  of  Bihar,  (1999)  8  SCC  16,  and Shyam   Sundar v. Ram Kumar, (2001) 8 SCC 24, has elaborately discussed  the scope and ambit of an amending legislation and its retrospectivity  and held that every litigant has a vested right in substantive law but no  such right exists in procedural law.  This Court has held that the law  relating to forum and limitation is procedural in nature whereas law   relating  to  right  of  appeal  even  though  remedial  is  substantive  in   nature.

26. Therefore,  unless  the  language  used  plainly  manifests  in   express  terms  or  by  necessary  implication  a  contrary  intention  a   statute divesting vested rights is to be construed as prospective, a   statute merely procedural is to be construed as retrospective and a   statute which while procedural in its character, affects vested rights   adversely is to be construed as prospective.”

(emphasis is ours)

Based on the aforesaid determination of this Court, it was the contention of the  

learned counsel for the appellant, that the amendment of Section 15Z of the  

SEBI Act, whereby the appellate forum was changed from the High Court to  

the  Supreme Court,  would  necessarily  have to  be treated  as a  procedural  

amendment.  Having so inferred, it was the contention of the learned counsel,  

based  on  the  judgments  referred  to  above,  that  the  amendment  under  

reference,  was  liable  to  be  treated  as  procedural.   And  as  such,  the  

amendment to Section 15Z had to be treated as if, the same was a part of the  

SEBI Act from the very beginning.

18. We have recorded hereinabove, the submissions advanced on behalf of  

the  appellant.   We  shall  record  hereinafter,  the  response  of  the  learned  

counsel for the respondent.

19. While  responding  to  the  submissions  advanced  at  the  hands  of  the  

learned counsel  for  the  appellant,  learned counsel  for  the respondent  was  

satisfied, in merely relying upon judicial precedent, to contest the submissions  

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the repealing statue and will be continued and concluded in accordance  with the law as existed under the repealed statute.”

(emphasis is ours)

Based  on  the  above  determination,  it  was  the  contention  of  the  learned  

counsel, that in addition to the existence of a vested right, Section 6(c) and (e)  

make it abundantly clear, that a pending legal proceeding or remedy, before  

the  amendment  altered  the  forum,  would  continue  to  be  available  for  the  

adjudication of the matter, unless the amending provision by express words or  

by necessary implication expressed otherwise.

22. Reliance was thereafter  placed by learned counsel,  on M/s.  Hoosein  

Kasam Dada (India)  v. State of  Madhya Pradesh,  AIR 1953 SC 221.  The  

question, which arose for consideration in the cited case was, with reference to  

the maintainability of an appeal preferred by the appellant, under Section 22(1)  

of  the  Central  Provinces  of  Berar  Sales  Tax  Act,  1947,  to  the  Sales  Tax  

Commissioner, Madhya Pradesh, against an assessment order passed by the  

Assistant Commissioner.  Since the appellant did not attach to the appeal any  

proof of payment of tax in respect of which the appeal had been preferred, the  

authorities declined to admit the appeal.  The aforesaid determination by the  

Sales Tax Commissioner, was assailed before the Board of Revenue, Madhya  

Pradesh.   It  was sought  to be asserted during the course of  the aforesaid  

appellate proceedings,  that the appeal  preferred by the appellant  would be  

governed by the proviso to Section 22(1) of the above mentioned Act, as it  

stood  when  the  assessment  proceedings  were  initiated  (i.e.,  before  the  

amendment to the proviso to Section 22(1) aforementioned).  The Board of  

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Revenue took  the view,  that  the  order  of  assessment  was made after  the  

amendment to the aforesaid provision, and accordingly, the appeal would be  

governed by the amended provision.  It was also concluded, that the law as it  

existed  before  the  filing  of  the appeal,  would  not  apply  to  the  case.   The  

aforesaid determination was assailed by the appellant, before the High Court  

of  Madhya Pradesh,  which dismissed the contention of  the appellant.   It  is  

therefore that the appellant approached this Court.  On the subject referred to  

hereinabove, this Court observed as under:

“4. The principle of the above decision was applied by Jenkins C.J. in  Nana v. Sheku, 32 Bom. 337(B), and by the Privy Council itself in Delhi  Cloth and General  Mills Co.  Ltd.  v.  Income-tax Commissioner,  Delhi,  AIR 1927 PC 242 (C).  A Full Bench of the Lahore High Court adopted it  in Kirpa Singh v. Rasalldar Ajaipal Singh, AIR 1928 Lah. 627 (FB) (D).  It  was there regarded as settled that the right of appeal was not a mere  matter of procedure but was vested right which inhered in a party from  the commencement of the action in the Court of first instance and such  right  could  not  be taken away except  by an express provision or  by  necessary implication.

5. In Sardar Ali v. Dolimuddin, AIR 1928 Cal. 640 (FB) (E), the suit out of  which the appeal arose was filed in the Munsiff's Court at Alipore on the  7.10.1920.  The  suit  having  been  dismissed  on  the  17.7.1924,  the  plaintiffs appealed to the Court of the District Judge but the appeal was  dismissed.  The plaintiffs  then preferred  a second appeal  to  the High  Court  on the 4.10.1926.  That  second appeal  was heard  by a  Single  Judge and was dismissed on the 4.4.1928. In the meantime Cl. 15 of the  Letters Patent was amended on the 14.1.1928 so as to provide that no  further appeal should lie from the decision of a Single Judge sitting in  second appeal unless the Judge certified that the case was a fit one for  appeal.  In  this  case  the  learned  Judge  who  dismissed  the  second  appeal on the 4.4.1928, declined to give any certificate of fitness. The  plaintiffs on the 30.4.1928, filed an appeal on the strength of Cl. 15 of  the Letters Patent as it stood before the amendment.  The contention of  the appellants was that the amended clause could not be applied to that  appeal, for to do so would be to apply it retrospectively and to impair  and indeed to defeat a substantive right which was in existence prior to  the  date  of  the  amendment.   The  appellants  claimed  that  on  the  7.10.1920,  when  the  suit  was  filed  they  had  vested  in  them by  the  

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existing  law  a  substantive  right  to  Letters  Patent  appeal  from  the  decision of a Single Judge and that an intention to interfere with it, to  clog  it  with  a  new  condition  or  to  impair  or  imperil  it  could  not  be  presumed  unless  it  was  clearly  manifested  by  express  words  or  necessary  intendment.  In  giving  effect  to  the  contentions  of  the  appellants Rankin C.J. observed at pp. 641-642:-

"Now, the reasoning of the Judicial  Committee in The Colonial Sugar  Refining  Company's  case  (A)  is  a  conclusive  authority  to  show  that  rights of appeal are not matters of procedure, and that the right to enter  the superior court is for the present purpose deemed to arise to a litigant  before any decision has been given by the inferior court.  If the latter  proposition be accepted,  I  can see no intermediate point  at  which to  resist the conclusion that the right arises at the date of the suit."

It was held that the new clause could not be given retrospective effect  and accordingly the date of presentation of the second appeal  to the  High Court was not the date which determined the applicability of the  amended clause of the Letters Patent and that the date of the institution  of the suit was the determining factor.

xxx xxx xxx

7. The case of Nagendra Nath v. Man Mohan Singha, AIR 1931 Cal.  100 (N),  is indeed very much to the point.   In that case the plaintiffs  instituted a suit for rent valued at Rs.1,306/15 and obtained a decree. In  execution of that decree the defaulting tenure was sold on 20.11.1928,  for Rs.1,600.  On 19.12.1928, an application was made, under O. XXI,  R. 90, Civil PC, by the present petitioner, who was one of the judgment- debtors,  for  setting  aside  the  sale.  That  application  having  been  dismissed  for  default  of  his  appearance  the  petitioner  preferred  an  appeal to the District Judge of Hoogly who refused to admit the appeal  on the ground that the amount recoverable in execution of the decree  had not been deposited as required by the proviso to S. 174, Cl. (c), of  the Bengal Tenancy Act as amended by an amending Act in 1928. The  contention of the petitioner was that the amended provision which came  into  force  on  21.2.1929,  could  not  affect  the  right  of  appeal  from a  decision on an application made on 19.12.1928, for setting aside the  sale. Mitter J. said at pp. 101-102:-

"We  think  the  contention  of  the  petitioner  is  well-founded  and  must  prevail.  That  a  right  of  appeal  is  a  substantive  right  cannot  now be  seriously  disputed.  It  is  not  a mere matter  of  procedure.  Prior  to the  amendment of 1928, there was an appeal against an order refusing to  set aside a sale (for that is the effect also where the application to set  aside the sale is dismissed for default) under the provisions of O. 43, R.  (1), Civil PC.  That right was unhampered by any restriction of the kind  

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now imposed by S. 174(5), Proviso.  The Court was bound to admit the  appeal  whether  appellant  deposited  the  amount  recoverable  in  execution of the decree or not.  By requiring such deposit as a condition  precedent to the admission of the appeal, a new restriction has been put  on the right of appeal, the admission of which is now hedged in with a  condition.  There  can be  no  doubt  that  the  right  of  appeal  has  been  affected  by  the  new  provision  and  in  the  absence  of  an  express  enactment this amendment cannot apply to proceedings pending at the  date  when the  new amendment  came into  force.  It  is  true  that  the  appeal was filed after the Act came into force, but that circumstance is  immaterial - for the date to be looked into for this purpose is the date of  the original proceeding which eventually culminated in the appeal."

8.  The  above  decisions  quite  firmly  establish  and  our  decisions  in  Janardan Reddy v. The State, AIR 1951 SC 124(O), and in Ganpat Rai  v. Agarwal Chamber of Commerce Ltd., AIR 1952 SC 409 (P), uphold  the principle that a right of appeal is not merely a matter of procedure. It  is matter of substantive right. This right of appeal from the decision of an  inferior tribunal to a superior tribunal becomes vested in a party when  proceedings are first initiated in, and before a decision is given by, the  inferior  court.  In  the  language  of  Jenkins  C.J.  in  Nana v.  Sheku (B)  (supra) to disturb an existing right of appeal is not a mere alteration in  procedure.   Such  a  vested  right  cannot  be  taken  away  except  by  express enactment or necessary intendment.  An intention to interfere  with  or  to  impair  or  imperil  such a vested right  cannot  be presumed  unless  such  intention  be  clearly  manifested  by  express  words  or  necessary implication.

9. Sri Ganapathy Aiyar urges that the language of S. 22(1) as amended  clearly makes the section retrospective.  The new proviso, it is pointed  out, pre-emptorily requires the authority not to admit the appeal unless it  be accompanied by a satisfactory proof  of  the payment  of  the tax in  respect of which the appeal is preferred and this duty the authority must  discharge at the time the appeal is actually preferred before him. The  argument is that after the amendment the authority has no option in the  matter  and  he  has  no  jurisdiction  to  admit  any  appeal  unless  the  assessed  tax  be  deposited.  It  follows,  therefore,  by  necessary  implication,  according  to  the  learned  Advocate,  that  the  amended  provision applies to an appeal from an assessment order made before  the date of amendment as well as to an appeal from an order made after  that  date. A similar  argument  was urged before the Calcutta  Special  Bench in Sardar  Ali  v.  Dolimuddin (E) (supra),  namely,  that after  the  amendment the court had no authority to entertain an appeal without a  certificate from the Single Judge.  Rankin C.J.,  repelled this argument  with the remark at p. 643 :-

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"Unless  the  contrary  can be  shown,  the  provision  which takes away  jurisdiction is itself subject to the implied saving of the litigants' right."

In our view the above observation is apposite and applies to the case  before  us.  The  true  implication  of  the  above  observation  as  of  the  decisions in the other cases referred to above is that the pre-existing  right of appeal is not destroyed by the amendment if the amendment is  not made retrospective by express words or necessary intendment. The  fact that the pre-existing right of appeal continues to exist must, in its  turn, necessarily imply that the old law which created that right of appeal  must also exist to support the continuation of that right. As the old law  continues to exist for the purpose of supporting the pre-existing right of  appeal that old law must govern the exercise and enforcement of that  right  of  appeal  and  there  can  then  be  no  question  of  the  amended  provision preventing the exercise of that right.  The argument that the  authority has no option or jurisdiction to admit the appeal unless it be  accompanied  by the  deposit  of  the assessed tax  as required  by the  amended proviso to S. 22(1) of the Act overlooks the fact of existence of  the old law for the purpose of supporting the pre-existing right and really  amounts to begging the question. The new proviso is wholly inapplicable  in  such  a  situation  and  the  jurisdiction  of  the  authority  has  to  be  exercised under the old law which so continues to exist. The argument  of Sri Ganapathy Iyer on this point, therefore, cannot be accepted.”

(emphasis is ours)

23. Thereafter,  reliance  was  placed  by  the  learned  counsel  for  the  

respondent on the decision rendered by this Court in Daji Saheb v. Shankar  

Rao  Vithalrao  Mane,  AIR  1956  SC  29.   The  factual  matrix  on  the  basis  

whereof the controversy was adjudicated upon, is reflected in paragraphs 2, 3  

and 4.  The same are extracted hereunder:

“2. The original decree was on 20-12-1946. The decree of the High  Court allowing the plaintiff's claim was on 8-11-1949. The defendants  applied for leave to appeal to the Federal Court on 6-1-1950. The High  Court directed the trial court to find the value of the property which was  the subject-matter of the suit at the time of the suit and on the date of  the passing of the decree in appeal.

On  22-1-1951  the  lower  court  ascertained  the  value  as  stated  above.   The High Court  thereafter  granted  leave to appeal  on 1-10- 1951, overruling the objections raised by the plaintiff to the grant of such  leave.

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right  of  second appeal  had not  been fully  preserved.   In this behalf  it  was  

pointed  out,  that  under  the  unamended  Section  15Z,  the  appellate  right  

extended to questions of law as well as fact,  whereas, under the amended  

Section 15Z,  the appellate right  was limited to questions of  law alone.  As  

such,  it  was submitted,  that  the  effect  of  the amendment  under  reference,  

could not be described as a mere change of  forum.  According to learned  

counsel for the respondent, the amendment affected the respondent’s right to  

appeal as well.

24. We  have  given  our  thoughtful  consideration  to  the  submissions  

advanced at the hands of the learned counsel for the rival parties.  We shall  

now  venture  to  determine  the  controversy  which  has  been  debated  

hereinabove.  So as not to be required to repeatedly express one foundational  

fact, it  would be pertinent to mention, that our determination, insofar as the  

present controversy is concerned, is with reference to situations wherein, the  

amending provision by express words or by necessary implication, does not  

mandate  the  amendment  to  be either  prospective  or  retrospective.   In  the  

present case, the instant situation emerges from Section 32 of the Securities  

and Exchange Board of India (Amendment) Act, 2002, which is silent on the  

above subject.

25. 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 15Z of the  

SEBI Act remained unaffected by the amendment of the said provision; and on  

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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 15Z of  the SEBI Act.  Under the  

unamended Section 15Z, the appellate remedy to the High Court, against an  

order passed by the Securities Appellate Tribunal, was circumscribed by the  

words  “…on any  question  of  fact  or  law arising  out  of  such order.”.   The  

amended Section 15Z, while altering the appellate forum from the High Court  

to the Supreme Court, curtailed and restricted the scope of the appeal, against  

an order passed by the Securities Appellate Tribunal, by expressing that the  

remedy could  be availed  of  “…on any question  of  law arising  out  of  such  

order.”.   It  is,  therefore  apparent,  that  the  right  to  appeal,  is  available  in  

different packages, and that, the amendment to Section 15Z, varied the scope  

of the second appeal provided under the SEBI Act.   

26. As  illustrated  above,  an  appellate  remedy  is  available  in  different  

packages.  What falls within the parameters of the package at the initial stage  

of the lis or dispute, constitutes the vested substantive right, of the concerned  

litigant.  An aggrieved party, is entitled to pursue such a vested substantive  

right, as and when, an adverse judgment or order is passed.  Such a vested  

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substantive  right  can  be  taken  away  by  an  amendment,  only  when  the  

amended  provision,  expressly  or  by  necessary  intendment,  so  provides.  

Failing which, such a vested substantive right can be availed of, irrespective of  

the law which prevails, at the date when the order impugned is passed, or the  

date when the appeal is preferred.  For, it has repeatedly been declared by  

this Court, that the legal pursuit of a remedy, suit, appeal and second appeal,  

are  steps  in  a singular  proceeding.   All  these steps,  are  connected  by an  

intrinsic unity, and are regarded as one legal proceeding.

27. Where  the  appellate  package,  as  in  the  present  case,  is  expressed  

differently at the “pre” and “post” amendment stages, there could only be two  

eventualities.  Firstly, the pre-amendment appellate package, could have been  

decreased by the amendment.  Or alternatively, the post-amendment package,  

could have been increased by the amendment.  In the former situation, all that  

was available earlier,  is now not  available.   In other words, the right of  an  

individual to the appellate remedy, stands reduced or curtailed.  In the latter  

situation,  the  amendment  enhances  the appellate  package.   The appellate  

remedy available prior to the amendment, stands included in the amendment,  

and some further addition has been made thereto.  In the latter stage, all that  

was available earlier continues to subsist.  The two situations contemplated  

hereinabove,  will  obviously  lead  to  different  consequences,  because in  the  

former  position,  the  amendment  would  adversely  affect  the  right,  as  was  

available earlier.  In the latter position, the amendment would not affect the  

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right of appeal, as was available earlier, because the earlier package is still  

included in the amended package.

28. In the facts and circumstances of this case, it is apparent that Section  

15Z of  the SEBI Act prior to the amendment,  postulated that the appellate  

remedy would extend to “…any question of  fact  or  law arising out of  such  

order.”.  Whereas, the appellate remedy was curtailed consequent upon the  

amendment, whereunder the appellate right was limited to, “…any question of  

law arising out of such order.”.   Accordingly, by the amendment, the earlier  

appellate package stands reduced, because under the amended Section 15Z,  

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  

15Z of the SEBI Act, envisages only an amendment of the forum, where the  

second appeal would lie.  In our considered view, the amendment to Section  

15Z  of  the  SEBI  Act,  having  reduced  the  appellate  package,  adversely  

affected  the  appellate  right  vested  of  the  concerned  litigant.   The  right  of  

appeal being a vested right, the appellate package, as was available at the  

commencement  of  the  proceedings,  would  continue  to  vest  in  the  parties  

engaged in a lis, till the eventual culmination of the proceedings.  Obviously,  

that would be subject to an amendment expressly or impliedly, providing to the  

contrary.   Section  32  of  the  Securities  and  Exchange  Board  of  India  

(Amendment)  Act,  2002,  which  has  been  extracted  in  paragraph  12  

hereinabove reveals, that the ‘repeal and saving’ clause, neither expressly nor  

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impliedly, so provides.  Thus viewed, we are constrained to conclude, that the  

assertion advanced at the hands of the learned counsel for the appellant, that  

the instant amendment to Section 15Z of the SEBI Act, does not affect the  

second  appellate  remedy,  but  merely  alters  the  forum  where  the  second  

appellate remedy would lie, is not acceptable.

29. Having  concluded,  that  the  remedy  of  second  appeal  vested  in  the  

respondent has not been preserved, in the same format as it was available to  

the respondent, at the time of initiation of the lis between the parties; and also  

having concluded, that the scope of the appellate remedy has been diminished  

by the amendment, we are satisfied in holding, that amendment to Section 15Z  

of the SEBI Act adversely affected the respondent,  of a vested substantive  

appellate right, as was available to the respondent, at the commencement of  

the lis or dispute between the rival parties.   Having recorded the aforesaid  

conclusion, based on the judgments relied upon by the learned counsel for the  

appellant, as also, by the learned counsel for the respondent, it is inevitable to  

conclude, that the appellate remedy available to the respondent prior to the  

amendment of Section 15Z of the SEBI Act, must continue to be available to  

the respondent,  despite the amendment.   We accordingly  hold,  that  all  the  

appeals preferred by the Board, before the High Court, were maintainable in  

law.

30. Having recorded our conclusion, as has been noticed in the foregoing  

paragraph, it is apparent, that insofar as the vesting of the second appellate  

remedy is concerned, neither the date of filing of the second appeal, nor the  

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date of hearing thereof, is of any relevance.  Legal pursuit of a remedy, suit,  

appeal and second appeal, are steps in a singular proceeding.  All these steps  

are  deemingly  connected  by  an  intrinsic  unity,  which  are  treated  as  one  

singular proceeding.  Therefore, the relevant date when the appellate remedy  

(including the second appellate remedy) becomes vested in the parties to the  

lis,  is  the  date  when  the  dispute/lis  is  initiated.   Insofar  as  the  present  

controversy  is  concerned,  it  is  not  a  matter  of  dispute,  that  the  Securities  

Appellate Tribunal had passed the impugned order (which was assailed by the  

Board),  well  before 29.10.2002.   This  singular  fact  itself,  would lead to the  

conclusion, that the lis between the parties, out of which the second appellate  

remedy  was  availed  of  by  the  Board  before  the  High  Court,  came  to  be  

initiated  well  before  the  amendment  to  Section  15Z  by  the  Securities  and  

Exchange  Board  of  India  (Amendment)  Act,  2002.   Undisputedly,  the  

unamended Section 15Z of the SEBI Act, constituted the appellate package  

and the forum of appeal, for the parties herein.  It is, therefore, not possible for  

us to accept, the contention advanced at the hands of the learned counsel for  

the appellant, premised on the date of filing or hearing of the appeal, preferred  

by the Board, before the High Court.   We accordingly reiterate the position  

expressed above, that all the appeals preferred by the Board, before the High  

Court, were maintainable in law.

31. It was also the contention of the learned counsel for the appellant, that  

in  the  absence  of  a  saving  clause,  the  pending  proceedings  (and  the  

jurisdiction of the High Court), cannot be deemed to have been saved.  It is not  

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possible for us to accept the instant contention.  In the judgment rendered by  

this Court in Ambalal Sarabhai Enterprises Limited case (supra), it was held,  

that the general principle was, that a law which brought about a change in the  

forum, would not affect pending actions, unless the intention to the contrary  

was  clearly  shown.   Since  the  amending  provision  herein,  does  not  so  

envisage,  it  has  to  be  concluded,  that  the  pending  appeals  (before  the  

amendment  of  Section  15Z)  would  not  be  affected  in  any  manner.  

Accordingly,  for  the  same reasons  as  have  been  expressed  in  the  above  

judgment (relevant extracts whereof have been reproduced above), we are of  

the view, that  the instant  contention advanced at  the hands of  the learned  

counsel  for  the appellant  is  wholly  misconceived.   Furthermore,  the instant  

contention is wholly unacceptable in view of the mandate contained in Section  

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 crystallized 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.  Herein also, therefore, our conclusion is the same as has already  

been rendered by us, in the foregoing paragraphs.

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32. 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 15Z 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 15Z 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, learned counsel for the appellant had  

placed reliance on, the decisions rendered by this Court in Maria Cristina De  

Souza Sodder, Hitendra Vishnu Thakur and Thirumalai Chemicals Ltd. cases  

(supra) to contend, that the law relating to forum being procedural in nature, an  

amendment which altered the forum, would apply retrospectively.  Whilst the  

correctness of the aforesaid contention cannot be doubted, it is essential to  

clarify, that the same is not an absolute rule.  In this behalf, reference may be  

made to the judgments relied upon by the learned counsel for the respondent,  

and more importantly to the judgment rendered in Commissioner of Income  

Tax, Orissa case (supra), wherein it has been explained, that an amendment  

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of forum would not necessarily be an issue of procedure.  It was concluded in  

the above judgment, that where the question is of change of forum, it ceased  

to  be  a  question  of  procedure,  and  becomes  substantive  and  vested,  if  

proceedings stand initiated before the earlier  prescribed forum (prior  to the  

amendment  having taken effect).   This Court  clearly declared in the above  

judgment, that if the appellate remedy had been availed of (before the forum  

expressed  in  the  unamended  provision)  before  the  amendment,  the  same  

would constitute a vested right.  However, if the same has not been availed of,  

and  the  forum  of  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.

33. The  conclusion  recorded  by  us  in  the  foregoing  paragraph  emerges  

even from the mandate contained in Section 6 of the General Clauses Act,  

1897.  The legal contours emerging out of Section 6 aforementioned, have  

already been recorded by us, and need not be repeated.

34. For the reasons recorded hereinabove, we find no merit in this appeal  

and the same is accordingly dismissed.  It is, however, necessary for us to  

record, that the impugned order was passed with reference to a number of  

appeals,  which  were  preferred  by  the  Board,  as  against  a  common  order  

passed by the Securities Appellate Tribunal.  In the impugned order, some of  

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the appeals preferred by the Board were held as maintainable before the High  

Court,  whilst  a different  view was expressed with reference to the appeals  

preferred by the Board after 29.10.2002.  We have concluded, that all appeals  

preferred by the respondent herein, before the High Court, were maintainable.  

In exercise of our jurisdiction under Article 142 of the Constitution of India, we  

direct, that the instant order passed by us would govern all cases which were  

disposed of by the High Court through the impugned order dated 13.10.2003.   

35. Disposed of accordingly.

……………………………J. (Jagdish Singh Khehar)

……………………………J. (M.Y. Eqbal)

New Delhi; January 13, 2015.

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