NEENA ANEJA & ANR. versus JAI PRAKASH ASSOCIATES LTD.

[2021] 15 S.C.R.

NEENA ANEJA & ANR.

JAI PRAKASH ASSOCIATES LTD.

(Civil Appeal Nos. 3766-3767 of 2020)

MARCH 16, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDM. R. SHAH, JJ.]

Consumer Protection Act, 2019 – s.107 –Consumer ProtectionCAct, 1986 – Repeal of 1986 Act –Proceedings instituted thereunder,if can be continued under the same forum– Enhancement ofpecuniary jurisdiction – Pending proceedings, if to be transferred–Consumer case was instituted by appellants before the NCDRC on18.06.20 under the provisions of the 1986 Act–2019 Act came intoforce 20.07.20 – Case dismissed by NCDRC on the ground thatDafter the enforcement of the 2019 Act, its pecuniary jurisdictionhas been enhanced from rupees one crore to rupees ten crores andthe claim of appellants, of Rs. 2.19 crores is below its enhancedpecuniary jurisdiction–Held: Proceedings instituted before thecommencement of the 2019 Act would continue before the foracorresponding to those under the 1986 Act and not be transferredEin terms of the pecuniary jurisdiction set for the fora establishedunder the 2019 Act– Something specific in terms of statutorylanguage either express words or words indicative of necessaryintendment would have been required for mandating the transfer ofpending cases – Impugned order and the review order set aside –FNational Commission to continue hearing the case instituted by theappellants – General Clauses Act, 1897 – s.6 – Interpretation ofStatutes – Harmonious construction.

Consumer Protection Act, 2019 – s.107 –Object and purposeof the 2019 Act – Repeal of the Consumer Protection Act, 1986 –GProceedings pending thereunder, if to be transferred – Intention oflegislature – Held: The legislature cannot be attributed to be remissin not explicitly providing for transfer of pending cases accordingto the new pecuniary limits set up for the fora established by thenew law, were that to be its intention–It would be difficult to attributeto Parliament, whose purpose in enacting the Act of 2019 was toH

protect and support consumers with an intent that would lead tofinancial hardship, uncertainty and expense in the conduct ofconsumer litigation – General Clauses Act, 1897 – s.6.

Interpretation of Statutes – Procedural Law – Change of forum– Operation of, if retrospective – Held: change in forum lies inthe realm of procedure – Amendments on matters of procedure areretrospective, unless contrary intention emerges from the statute –Repeals or amendments that effect changes in forum wouldordinarily affect pending proceedings, unless contrary intentionappears from the repealing or amending statute – Position of lawon 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), whenread together is two-fold: first, the right which has accrued on thedate of the institution of the consumer complaint under the Act of1986 is preserved; and second, the enforcement of the right throughthe instrument of legal proceeding or remedy will not be affectedby the repeal.

Words & Phrases – “entertain” – Consumer Protection Act,2019 – Consumer Protection Act, 1986 – Held: Mere use of theword “entertain” in defining jurisdiction is not sufficient tocounteract the overwhelming legislative intention to ensureconsumer welfare and deliberately not provide for provision fortransfer of pending proceedings in the Act of 2019 or u/s.106 ofthe Act of 2019 which is power to remove difficulties for periodof two years after the commencement of the Act of 2019.

Allowing the appeals, the Court

HELD: 1.1 change in forum lies in the realm of procedure.Accordingly, in compliance with the tenets of statutoryinterpretation applicable to procedural law, amendments onmatters of procedure are retrospective, unless contraryintention emerges from the statute. However, there was adeviation by two judge bench decision of this Court in DhadiSahu, which overlooked the decision of larger three judge benchin New India Assurance and of co-ordinate two judge bench inMaria Cristina. The decision in Dhadi Sahu propounded positionthat “no litigant has any vested right in the matter of procedural

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Alaw but where the question is of change of forum it ceases to be aquestion of procedure only. The forum of appeal or proceedings isa vested right as opposed to pure procedure to be followed before aparticular forum. The right becomes vested when the proceedingsare initiated in the tribunal.”In taking this view, the two judgebench did not consider binding decisions. Dhadi Sahu failed toBconsider that the saving of pending proceedings in Mohd. Idrisand Manujendra Dutt was saving of vested rights of the litigantsthat were being impacted by the repealing acts therein, and notbecause right to forum is accrued once proceedings have beeninitiated. Thereafter, line of decisions followed Dhadi Sahu, toChold that litigant has crystallized right to forum onceproceedings have been initiated. litigant’s vested right(including the right to an appeal) prior to the amendment or repealare undoubtedly saved, in addition to substantive rights envisagedunder Section 6 of the General Clauses Act. This protection doesnot extend to pure matters of procedure. Repeals or amendmentsDthat effect changes in forum would ordinarily affect pendingproceedings, unless contrary intention appears from therepealing or amending statute. [Para 53][158-H; 159-A-F]

Commissioner of Income Tax, Orissa v. Dhadi Sahu1994 Suppl. (1) SCC 257 : [1992] 3 Suppl. SCR 168–Eheld per incuriam.

Mohd. Idris v. Sat Narain AIR 1966 SC 1499 : [1966]SCR 15; Manujendra Dutt v. Purnedu Prosad RoyChowdhury [1967] 1 SCR 475 – referred to.

F1.2 Section 107(1) of the Act of 2019 repeals the Act of1986. Section 107 (2) has saved “the previous operation” of anyrepealed enactment or “anything duly done or suffered thereunderto the extent that it is not inconsistent with the provisions of thenew legislation”. Finally, Section 107(3) indicates that the mentionof particular matters in sub-Section (2) will not prejudice or affectGthe general application of Section 6 of the General Clauses Act.Section 6 of the General Clauses Act provides governingprinciples with regard to the impact of the repeal of centralstatute or regulation. These governing principles are to apply,“unless different intention appears”. Clause (c) of Section 6Hinter alia stipulates that repeal would not affect “any right,privilege, obligation or liability acquired, accrued or incurredunder any enactment so repealed”. The right to pursue validlyinstituted consumer complaint under the Act of 1986 is rightwhich 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…asaforesaid”. Any such legal proceedings may be continued as ifthe repealing legislation had not been passed. Clause (c) of Section6 has the effect of preserving the right which has accrued. Clause(e) ensures that legal proceeding which has been initiated toprotect or enforce “such right” will not be affected and that it canbe continued as if the repealing legislation has not been enacted.The expression such right in clause (e) evidently means theright which has been adverted to in clause (c). The plainconsequence of clause (c) and clause (e), when read together istwo-fold: first, the right which has accrued on the date of theinstitution of the consumer complaint under the Act of 1986 (therepealing law) is preserved; and second, the enforcement of theright through the instrument of legal proceeding or remedy willnot be affected by the repeal. This position needs to be harmonizedwith the principle that the right to forum is not an accrued right.While Section 6(e) of the General Clauses Act protects the pendinglegal proceedings for the enforcement of an accrued right fromthe effect of repeal, this does not mean that the legal proceedingsat particular forum are saved from the effects from the repeal.The question whether the pending legal proceedings are requiredto be transferred to the newly created forum by virtue of therepeal would still persist. This Court in New India Assurance andMaria Christina has held that forum is matter pertaining toprocedural law and therefore the litigant has to pursue the legalproceedings at the forum created by the repealing act, unless acontrary intention appears. This principle would also apply topending proceedings, asobserved in Ramesh Kumar Soni,Hitendra Kumar Thakur and Sudhir Angur. In this backdrop,what is relevant to ascertain is whether contrary intent to thegeneral rule of retrospectivity has been expressed under the Actof 2019 to continue the proceedings at the older forum. [Paras62-64][161-F, G-H; 162-A-H, 163-A-B]

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DEF

100SUPREME COURT REPORTS

[2021] 15 S.C.R.

AHitendra Vishnu Thakur v. State of Maharashtra (1994)4 SCC 602 : [1994] 1 Suppl. SCR 360; Sudhir Angurv. M Sanjeev (2006) 1 SCC 141 : [2005] 4 Suppl. SCR851; Ramesh Kumar Soni v. State of Maharashtra(2013) 14 SCC 696 : [2013] 1 SCR 1129 – relied on.

B1.3 In considering the expression of intent in the repealingenactment in the present case, it is apparent that there is noexpress language indicating that all pending cases would standtransferred to the fora created by the Act of 2019 by applying itsnewly prescribed pecuniary limits. In deducing whether there isa contrary intent, the legislative scheme and procedural historyCmay provide relevant insight into the intention of thelegislature.The Act of 2019, as indicated by its long title, is enactedto provide “for protection of the interests of consumers”. TheStatement of Objects and Reasons took note of the tardy disposalof cases under the erstwhile legislation. Thus, the necessity ofDinducing speed in disposal was to protect the rights and interestsof consumers. The Act of 2019 has taken note of the evolution ofconsumer markets by the proliferation of products and servicesin light of global supply chains, e-commerce and internationaltrade. New markets have provided wider range of access toconsumers. But at the same time, consumers are vulnerable toEexploitation through unfair and unethical business practices. TheAct has sought to address “the myriad and constantly emergingvulnerabilities of the consumers”. The recurring theme in thenew legislation is the protection of consumers which is sought tobe strengthened by procedural interventions such asFstrengthening class actions and introducing mediation as analternate forum of dispute resolution. [Paras 65, 66][163-B-F]

1.4 Something specific in terms of statutory language - eitherexpress words or words indicative of necessary intendmentwould have been required for mandating the transfer of pendingGcases. One can imagine the serious hardship that would be causedto the consumers, if cases which have been already institutedbefore the NCDRC were required to be transferred to theSCDRCs as result of the alteration of pecuniary limits by theAct of 2019. consumer who has engaged legal counsel at the

headquarters of the NCDRC would have to undertake freshround of legal representation before the SCDRC incurringexpense and engendering uncertainty in obtaining access tojustice. Likewise, where complaints have been instituted beforethe SCDRC, transfer of proceedings would require consumersto obtain legal representation before the District Commission ifcases were to be transferred. Such course of action would havea detrimental impact on the rights of consumers. Many consumersmay not have the wherewithal or the resources to undertake afresh burden of finding legal counsel to represent them in thenew forum to which their cases would stand transferred. It wouldbe difficult to attribute to Parliament, whose purpose in enactingthe Act of 2019 was to protect and support consumers with anintent that would lead to financial hardship, uncertainty andexpense in the conduct of consumer litigation. Ironically, theobjection which has been raised in the present case to thecontinued exercise of jurisdiction by the NCDRC in regard tothe consumer complaint filed by the appellant is by the developerwho is the respondent herein. It is developer who opposed thecontinuation of the proceedings before the NCDRC on the groundthat under the new consumer legislation the pecuniary limits ofthe jurisdiction exercisable by the NCDRC have been enhancedand the complaint filed by the appellant which was validly institutedunder the erstwhile law should be transferred to the SCDRC.Such course of action will result in thousands of cases beingtransferred across the country, from the NCDRC to the SCDRCsand 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, 21,216cases were pending before the NCDRC and 1,25,156 cases werepending before the SCDRC. Many of these cases would have tobe transferred if the view which the developer propounds isupheld. This will seriously dislocate the interests of consumersin manner which defeats the object of the legislation, which isto protect and promote their welfare. Clear words indicative ofeither an express intent or an intent by necessary implicationwould be necessary to achieve this result. The Act of 2019 containsno such indication. The transitional provisions contained inSections 31, 45 and 56 expressly indicate that the adjudicatory

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Apersonnel who were functioning as Members of the DistrictCommission, SCDRC and NCDRC under the erstwhilelegislation shall continue to hold office under the new legislation.Such provisions are necessary because persons appointed to theconsumer fora under the Act of 1986 would have otherwisedemitted office on the repeal of the legislation. The legislatureBcannot be attributed to be remiss in not explicitly providing fortransfer of pending cases according to the new pecuniary limitsset up for the fora established by the new law, were that to be itsintention. The omission, when contextualized against the statutoryscheme, portends contrary intention to protect pendingCproceedings through Section 107(2) of the Act of 2019. Thisintention appears likely, particularly in light of previous decisionsof the NCDRC which had interpreted amendments that enhancedpecuniary jurisdiction, with prospective effect. [Para 69][166-C-

DSouthfield Paints and Chemicals Pvt. Ltd. v. New IndiaAssurance Co. Ltd. Consumer Case No.286 of 2000(NCDRC); Premier Automobiles Ltd. v. Dr. Manoj Ramachandran, Revision Petitions Nos. 400 to 402 of 1993(NCDRC) – approved.

E1.6 It is accepted, that in defining the jurisdiction of theDistrict Commission, Section 34 of the Act of 2019 entrusts thejurisdiction to “entertain” complaints. similar provision iscontained in Section 47 and Section 58 in regard to the SCDRCand NCDRC. Sections 34, 47 and 58 similarly indicate that therespective consumer fora can entertain complaints within theFpecuniary limits of their jurisdiction. These provisions willundoubtedly apply to complaints which were instituted after theAct of 2019 came into force. However, the mere use of the word“entertain” in defining jurisdiction is not sufficient to counteractthe overwhelming legislative intention to ensure consumer welfareGand deliberately not provide for provision for transfer of pendingproceedings in the Act of 2019 or under Section 106 of the Act of2019 which is power to remove difficulties for period of twoyears after the commencement of the Act of 2019. [Para 70][167-C, F-G]

1.7 Proceedings instituted before the commencement ofthe Act of 2019 on 20 July 2020 would continue before the foracorresponding to those under the Act of 1986 (the NationalCommission, State Commissions and District Commissions) andnot be transferred in terms of the pecuniary jurisdiction set forthe fora established under the Act of 2019. Directions-

(i) The impugned judgment and order of the NCDRC dated30 July 2020 and the review order dated 5 October 2020,directing previously instituted consumer case under the Act of1986 to be filed before the appropriate forum in terms of thepecuniary limits set under the Act of 2019, shall stand set aside;

(ii) The National Commission shall continue hearing theconsumer case instituted by the appellants;

(iii) All proceedings instituted before 20 July 2020 underthe Act of 1986 shall continue to be heard by the foracorresponding to those designated under the Act of 1986 asexplained above and not be transferred in terms of the newpecuniary limits established under the Act of 2019. [Para 71][168-A-E]

New India Assurance Company Limited v. Smt ShantiMishra (1975) 2 SCC 840 : [1976] 2 SCR 266; MariaCristina 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] SCR488; Nusli Neville Wadia v. Ivory Properties (2020) 6SCC 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 SC340 : [1955] SCR 117; V Dhanapal Chettiar v. YesodaiAmmal (1979) 4 SCC 214 : [1980] 1 SCR 334; ShivBhagwan 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] 14SCR 263; Ambalal Sarabhai Enterprises Ltd. v. Amrit

[2021] 15 S.C.R.

ALal & Co. (2001) 8 SCC 397 : [2001] 2 Suppl. SCR195; Himachal Pradesh State Electricity RegulatoryCommission v Himachal Pradesh State Electricity Board(2014) 5 SCC 219 : [2013]11 SCR 915; VideoconInternational Limited v. Securities and Exchange Boardof India (2015) 4 SCC 33 : [2015] 3 SCR 1; SecuritiesBand Exchange of Board of India v. Classic Credit Limited(2018) 13 SCC 1 : [2017] 13 SCR 559; SwapnaMohanty v. State of Odisha (2018) 17 SCC 621; OmPrakash Agarwal v. Vishan Dayal Rajpoot (2019) 14SCC 526 : [2018] 13 SCR 47; Delhi High Court BarCAssociation v. Court of Delhi ILR (1994) 1 Del 271;Mahendra Panmal Duggad Jain v. Bhararilal PanmalDuggad Jain (2008) 4 Mah LJ 803; VallabhaneniLakshmana Swamy v. Valluru Basavaiah (2004) 5 ALD807; Gobardhan Lal Soneja v. Binod Kumar Sinha(1991) 2 PLJR 783; Y.B. Ramesh v. Varalakshmi (2010)D6 Kant LJ 43; Hindusthan Commercial Bank Ltd. v.Punnu Sahu (Dead) Through Legal Representatives(1971) 3 SCC 124; State of Rajasthan v. MangilalPindwal (1996) 5 SCC 60 : [1996] 3 Suppl. SCR 98–referred to.

NEENA ANEJA & ANR. v. JAI PRAKASH ASSOCIATES LTD.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3766-3767 of 2020.

From the Order dated 30.07.2020 and 05.10.2020 of the NationalConsumer Disputes Redressal Commission at New Delhi in ConsumerComplaint No.566 of 2020 and in Review Application No.124 of 2020respectively.

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- SupremeHCourt 4 judges)

C.3.Garikapati (1957- Supreme Court ConstitutionBench)

C.4.Mohd. Idris (1965- Supreme Court ConstitutionBench)

C.5.Manujendra Dutt (1966- Supreme Court 2 judges)

C.6.New India Assurance (1975- Supreme Court 3judges)

C.7.Maria Cristina (1978- Supreme Court 2 judges)

C.8.Hitendra Vishnu Thakur (1994- Supreme Court 2judges)

C.9.Sudhir 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 2judges)

C.15. SEBI v. Classic Credit (2018- Supreme Court 2judges)

C.16. Swapna Mohanty (2018- Supreme Court 2 judges)

C.17. Om Prakash Agarwal (2018- Supreme Court 2judges)

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

D.Legislative Scheme of the jurisdictional provisionsA

E.Legislative intendment underlying Section 107 of the Actof 2019

F.Summation

Background

1. On being enacted by Parliament, the Consumer Protection Act2019[1] was published in the Gazette of India on 9 August 2019[2]. By S.O.2351(E) dated 15 July 2020, the material provisions of the Act of 2019were 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 consumercase[3] before the National Consumer Disputes Redressal Commission[4]on 18 June 2020. The consumer case was instituted under the provisionsof the erstwhile legislation, the Consumer Protection Act 1986[5]. TheNCDRC by its order dated 30 July 2020 dismissed the consumer caseon the ground that after the enforcement of the Act of 2019, its pecuniaryjurisdiction has been enhanced from rupees one crore to rupees tencrores. The appellants’ review petition was also dismissed by the NCDRCon 5 October 2020. In the present case, the claim of Rs. 2.19 crores isbelow 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 complaintwhich was filed and registered under the Act of 1986, before the newAct of 2019 came into force, has to be entertained under the provisionsof the erstwhile legislation. In anticipation of the enforcement of the Actof 2019, an administrative notice was issued by the NCDRC on 17 July2020 to allow the functioning of its registry for fresh filings on 18 July2020, since the new law was to come into force on 20 July 2020. Theappellants are also aggrieved by the fact that contrary to the positiontaken in its case, other Benches of the NCDRC have admitted complaintsinstituted 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. 54dated 9 August 2019

3 Consumer Case no.566 of 2020 (NCDRC)

4 “NCDRC”

5 “Act of 1986”

Aarises in the appeals would turn upon construction of Section 107 ofthe Act of 2019, among other provisions of the new legislation, and itsinterplay with Section 6 of the General Clauses Act 1897[6]. The analysisof the Court, despite the new legislation, will not proceed on cleanslate for there is precedent which holds the field. That both sides relyupon the line of precedent in the unfolding of their cases makes theBinterpretational task intricate. Our task will be to bring solution that hasa sense of cohesion, while harmonizing precedential learning with justice.4. brief narration of the facts would assist with context. Uponthe payment of an advance of Rs.3.50 lacs on 25 November 2011 by theappellants, the respondent provisionally allotted residential unit in aCreal-estate project described as KRESCENT Homes admeasuring asuper built area of 114.27 square metres which was being developed bythe respondent at Jaypee Greens, Noida. The total consideration wasfixed at Rs.56.45 lacs and possession was intended to be conveyed withina period of 42 months from the execution of the agreement of theDprovisional allotment letter. The appellants have stated that betweenDecember 2011 till date, they have paid an amount of Rs. 53.84 lacs outof the total consideration of Rs.56.45 lacs.

5. On 13 June 2017 and 27 April 2020, the appellant sought arefund of the consideration together with interest at 18 per cent. On 18EJune 2020, the appellants instituted consumer complaint before theNCDRC for refund with interest. The consumer complaint has beendismissed by an order dated 30 July 2020 for want of pecuniaryjurisdiction. single member Bench of the NCDRC held that followingthe enforcement of the Act of 2019 on 20 July 2020, the limits of itspecuniary jurisdiction stands enhanced from rupees one crore to rupeesFten crores and the complaint instituted by the appellants is consequentlynot maintainable. The appellants instituted petition seeking review ofthe order. The review petition was dismissed on 5 October 2020 leadingto the institution of the appeal before this Court.

6. Section 21 of the Act of 1986 provided for the jurisdiction ofGthe NCDRC:

“Jurisdiction of the National Commission. — Subject to theother provisions of this Act, the National Commission shall havejurisdiction—

H6 “General Clauses Act”

(a)to entertain—

(i)complaints where the value of the goods or services andcompensation, if any, claimed exceeds rupeesone crore;and

(ii)appeals against the orders of any State Commission; and

(b)to call for the records and pass appropriate orders in anyconsumer dispute which is pending before or has beendecided by any State Commission where it appears to theNational Commission that such State Commission hasexercised jurisdiction not vested in it by law, or has failedCto exercise jurisdiction so vested, or has acted in theexercise of its jurisdiction illegally or with materialirregularity.” (emphasis supplied)

7. Under the Act of 1986, the enhancement of the pecuniary limitsof the jurisdiction of the NCDRC to rupees one crore came in substitutionof rupees twenty lacs with effect from 15 March 2003 as result of Act62 of 2002. Earlier the limit of rupees twenty lacs was substituted byAct 50 of 1993 for rupees ten lacs with effect from 18 June 1993.

8. Under Section 11, the jurisdiction of the District Commission toentertain original complaints was rupees twenty lacs[7]. Under Section17, the State Consumer Disputes Redressal Commission[8] had jurisdictionto entertain complaints where the value of the goods and services orcompensation if any claimed exceeds rupees twenty lacs but does notexceed rupees one crore[9].

9. The Act of 2019 was enacted by Parliament taking into accountthe experience which was gained in the administration of the earlierlegislation and to meet new developments in the market place for productsand services. The Statement of Objects and Reasons accompanying theintroduction of the Bill in Parliament elucidates the rationale for the newlaw:

7 The pecuniary limits were enhanced from rupees one lac to rupees five lacs by Act 50of 1983 with effect from 18 June 1993. The limits were enhanced from rupees five lacsto 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 rupeesfive lacs – rupees 20 lacs

“Statement of Objects and Reasons

The Consumer Protection Act, 1986 (68 of 1986) was enacted toprovide for better protection of the interests of consumers and forthe purpose of making provision for establishment of consumerprotection councils and other authorities for the settlement ofconsumer disputes, etc. Although, the working of the consumerdispute redressal agencies has served the purpose to considerableextent under the said Act, the disposal of cases has been fast due tovarious constraints. Several shortcomings have been noticed whileadministering the various provisions of the said Act.

2. Consumer markets for goods and services have undergonedrastic transformation since the enactment of the ConsumerProtection Act in 1986. The modern market place contains aplethora of products and services. The emergence of global supplychains, rise in international trade and the rapid development of e-commerce have led to new delivery systems for goods and servicesand have provided new options and opportunities for consumers.Equally, this has rendered the consumer vulnerable to new formsof unfair trade and unethical business practices. Misleadingadvertisements, tele-marketing, multi-level marketing, direct sellingand e-commerce pose new challenges to consumer protectionand will require appropriate and swift executive interventions toprevent consumer detriment. Therefore, it has become inevitableto amend the Act to address the myriad and constantly emergingvulnerabilities of the consumers. In view of this, it is proposed torepeal and re-enact the Act.

3. Accordingly, Bill, namely, the Consumer Protection Bill, 2018,was introduced in Lok Sabha on the 5[th] January, 2018 and waspassed by that House on the 20[th] December, 2018. While the Billwas pending consideration in Rajya Sabha, the Sixteenth Lok Sabhawas 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 executiveagency 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 detrimentarising from unfair trade practices and to initiate class actionincluding enforcing recall, refund and return of products, etc. This

fills an institutional void in the regulatory regime extant. Currently,the task of prevention of or acting against unfair trade practices isnot vested in any authority. This has been provided in mannerthat the role envisaged for the CCPA complements that of thesector regulators and duplication, overlap or potential conflict isavoided.

5. The Bill envisages provisions for product liability action onaccount of harm caused to consumers due to defective productor by deficiency in services. Further, provision of “Mediation” asan Alternate Dispute Resolution Mechanism has also beenprovided.

6. The Bill provides for several provision aimed at simplifying theconsumer dispute adjudication process of the Consumer DisputesRedressal Agencies, inter alia relating to enhancing the pecuniaryjurisdiction of the Consumer Disputes Redressal Agencies;increasing minimum number of Members in the State ConsumerDisputes Redressal Commissions and provisions for consumersto file complaints electronically, etc.

7. The Bill seeks to achieve the above objectives.”

10. Section 28(1) provides for the establishment of DistrictConsumer Disputes Redressal Commission[10] in every district, subject toits establishment by notification of the State Government[11]. Thejurisdiction of the District Commission in terms of Section 34 is toentertain complaints where the value of goods and services paid asconsideration does not exceed one crore rupees. Section 42 providesfor the establishment of SCDRC in each State. The pecuniary limitsof the original jurisdiction of the SCDRC under Section 47(1)(a) is toentertain original complaints where the value of goods and servicespaid as consideration exceeds rupees one crore but does not exceed

10 “District Commission”

11 28. (1) The State Government shall, by notification, establish District ConsumerDisputes Redressal Commission, to be known as the District Commission, in eachdistrict of the State: Provided that the State Government may, if it deems fit, establishmore than one District Commission in district.

(2) Each District Commission shall consist of—(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.

Arupees ten crores. Section 53 provides for the establishment of theNCDRC. Section 58(1)(a) contains the pecuniary limits of thejurisdiction of the NCDRC, which in the case of original complaints iswhere the value of goods and services paid as consideration exceedsrupees ten crores.B11. Section 107 contains the repeal and savings provision, whichis in the following terms:

“107. Repeal and savings-

(1) The Consumer Protection Act, 1986 is hereby repealed.

C(2) Notwithstanding such repeal, anything done or any action takenor purported to have been done or taken under the Act herebyrepealed shall, in so far as it is not inconsistent with the provisionsof this Act, be deemed to have been done or taken under thecorresponding provisions of this Act.

D(3) The mention of particular matters in sub-section (2) shall notbe held to prejudice or affect the general application of section 6of the General Clauses Act, 1897 with regard to the effect ofrepeal.”

In terms of sub-section (1) of Section 107, the Act of 1986 stands

repealed. Sub- section (2) is prefaced with non obstante provision.EUnder sub-section (2) anything done or any action taken or purportedto have been done or taken under the repealed legislation is deemed tohave been done or taken under the corresponding provision of the newlegislation, insofar as it is not inconsistent with the latter provisions.Sub-section (3) of Section 107 stipulates that the specification of theFmatters contained in sub-section (2) does not prejudice or affect thegeneral application of Section 6 of the General Clauses Act (with regardto the effect of repeal). Having repealed, the Act of 1986, the newlegislation has also made transitional provisions in Section 31[12], Section45[13] and

G12 31. Transitional provision: Any person appointed as President or, as the case maybe, member of the District Commission immediately before the commencement ofthis Act shall hold office as such as President or, as the case may be, as member till thecompletion of his term for which he has been appointed.13 45. Transitional provision: Any person appointed as President or, as the case maybe, member of the State Commission immediately before the commencement of thisAct shall hold office as such, as President or member, as the case may be, till theHcompletion of his term.NEENA ANEJA & ANR. v. JAI PRAKASH ASSOCIATES LTD.[DR. DHANANJAYA Y CHANDRACHUD, J.]

Section 56[14] for the continuance of persons appointed as membersof the District Commission, the SCDRC and the NCDRC under theerstwhile legislation.

Submissions

B.1 Submissions of the appellants

12. Mr P Vinay Kumar, learned Counsel appearing on behalf ofthe appellants urged the following submissions in support of the appeal:

(i)Section 107(3) of the Act of 2019 gives full effect to theprovisions of Section 6 of the General Clauses Act, whichmeans that nothing in the repeal of the earlier legislationCwill affect pending proceedings which may continue as ifthe new legislation has not been enacted. Under the Act of2019, the jurisdiction has been conferred on the SCDRC tohear complaints under the new Act. In order to vest theSCDRC with jurisdiction to hear complaints which wereinstituted before the NCDRC under the old Act, specificDprovision for transferring the proceedings was required-which has not been provided. This is not the case where astatute has been amended by enhancement of pecuniaryjurisdiction but involves the repeal of an old statute in whichevent provision for transferring the cases to the new forumEis essential;

(ii)The new Act of 2019 affects substantive and vested rightsand must necessarily be prospective; and

(iii)The new legislation does not contain any provision for itsretrospective operation.

A. Elaborating on the first limb of submissions, learned counselurged that in several decisions of this Court, Section 6 of theGeneral Clauses Act was applied by the Court in order tosave existing proceedings. In the present case, the law makershave specifically incorporated the applicability of Section 6 ofthe General Clauses Act, by making provision in Section

14 56. Transitional provision: The President and every other member appointedimmediately before the commencement of section 177 of the Finance Act, 2017 shallcontinue to be governed by the provisions of the Consumer Protection Act, 1986 andthe rules made thereunder as if this Act had not come into force.

A107(3) of the Act of 2019. The question of examining theexistence of vested rights arises only where there is doubtover savings provision or when Section 6 has not been madespecifically applicable. In such cases, the Court has toscrutinize whether vested right had arisen under the repealedstatute, in which event the pending proceedings would beBsaved. However, where Section 6 is applicable, it covers awider field so as to save not only vested rights but all rightscovered by clauses (a) to (e) of Section 6.

B. The next limb of the submissions is that substantial changeshave been made in the provisions for appeal contained in theCAct of 2019. For instance, the second proviso to Section 19 ofthe Act of 1986 required an aggrieved person to either deposit50 per cent of the amount awarded by the SCDRC or Rs25,000, whichever is less. However, in the Act of 2019, thesecond proviso to Section 51(1) stipulates that an appeal shallDnot be entertained by the NCDRC unless the appellant hasdeposited 50 per cent of the amount required under the orderof the SCDRC. This provision substantially affects the vestedright of litigant and is not merely procedural in nature. InGarikapati Veeraya v. N Subbiah Choudhry[15], theConstitution Bench of this Court has held that right of appealEis not mere matter of procedure but is substantive rightand that the institution of suit carries with it the implicationthat all rights of appeal then in force are preserved. Such avested right can only be taken away either expressly or bynecessary implication. Hence, the relevant date is the date ofFthe institution of the suit and not when the case comes forhearing or for decision. In the present case, the earlierlegislation was in force when the complaint was filed and hencethe rights and obligations which accrued on that date wouldstand saved. As result of the Act of 2019, statutory appealwhich was provided to the complainant to the Supreme CourtGagainst an order of the NCDRC has been taken away bystipulating that matters which will lie before the SCDRC willonly be amenable to appeal before the NCDRC. From thethirty one Sections in the Act of 1986, the Act of 2019 has

legislated for one hundred and seven Sections which in itselfindicates that the change is not merely procedural, butsubstantial.

C. The third limb of submissions is that there is no provision fortransfer of pending cases in the new Act of 2019. Under Section47 of the Act of 2019 of the new legislation, the jurisdiction ofBthe SCDRC is to entertain complaints under the Act of 2019above certain value. The jurisdiction to entertain complaintsunder the erstwhile legislation could only have been conferredby an express statutory provision that transferred complaintsfiled under the old Act from the NCDRC to the SCDRC. AnyCdirection for the transfer of existing cases would entaildisturbing thousands of cases pending before the NCDRCand SCDRCs across the country. This would cause serioushardship and prejudice to consumers and waste of judicialtime invested till date. similar question was dealt with by theNCDRC in its Judgment 8 April 2011 in Southfield PaintsDand Chemicals Pvt. Ltd. v. New India Assurance Co.Ltd.[16] which construed Amending Act 62 of 2002 by whichthe pecuniary limits of jurisdiction were enhanced with effectfrom 15 March 2003. Relying on the earlier decision inPremier Automobiles Ltd. v. Dr Manoj Ramachandran[17],Ethe NCDRC held that the amendments enhancing the pecuniaryjurisdiction were prospective in nature. The legislature mustbe considered to be aware of this precedent.

D. Finally, it was urged that the Act of 2019 came into force onJuly 2020 while the complaint in the present case wasinstituted before the NCDRC on 18 June 2020. The dismissalof the complaint for want of pecuniary jurisdiction is incontravention of the administrative notice dated 17 July 2020of the NCDRC. The administrative directions were compliedwith by other Benches of the NCDRC which have admitteda number of complaints instituted under the ConsumerProtection 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)

A(i)Section 107 of the Act of 2019 read with Section 6 of theGeneral Clauses Act saves pending legal proceedings; hencethe complaint which was filed before the enforcement ofthe new legislation should be allowed to proceed before theNCDRC under the Act of 1986;

B(ii)The relevant date is the date of the institution of thecomplaint and not the date when the matter is heard ordecided;

(iii)The new legislation affects substantive rights of appeal tothe NCDRC by making deposit of 50 per cent of theCdecretal amount mandatory;

(iv)In the absence of an express provision, the new legislationmust operate prospectively; and

(v)In the absence of provision for transfer of pending cases,complaints which were instituted prior to the enforcementDof the Act of 2019 should not be disturbed.

B.2 Submissions of the respondent

A. Mr Krishnan Venugopal, learned Senior Counsel appearing onEbehalf of the respondent, supported the reasoning of the NCDRC andurged the following submissions:

(i)The Statement of Objects and Reasons underlying theenactment of the Act of 2019 indicates that:

(a)The new legislation has been enacted to strengthenFthe remedies available to consumers;

(b)The legislature was conscious of the delays in thedisposal of cases under the erstwhile legislation; and

(c)While enacting the new law, conscious decisionGwas taken to enhance the pecuniary limits of thejurisdiction of the District Commission, SCDRC andNCDRC to ensure that the large proportion of casescan be resolved in the fora situated close to thecomplainants;

(ii)The purpose of the Act of 2019, as envisaged in theAStatement of Objects and Reasons, is further emphasizedunder Section 2(9)(iv) of the Act of 2019 under whichconsumer rights have been defined to include “the right tobe heard and be assured that consumer interests will receivedue consideration at appropriate fora”;

(iii)Sections 28, 42 and 53 provide for the establishment of theDistrict Commission, SCDRC and NCDRC. Under Section58(1)(a), the NCDRC is empowered to entertaincomplaintswhere the value of goods or services paid as considerationexceeds rupees ten crores. The expression ‘entertain’ hasCbeen construed in broad and comprehensive sense to mean‘to adjudicate upon’ in the decision of this Court in NusliNeville Wadia v. Ivory Properties[18];

(iv)The basic principle of law is that when statute is repealed,everything stands obliterated. Section 107(2) of the Act ofD2019 covers concluded transactions while Section 107(3)preserves the application of Section 6 of the General ClausesAct. Section 6 is prefaced with the words “unless differentintention appears”. Clause (c) of Section 6 is substantive innature while clause (e) applies to pending proceedings. Theprecedents of this Court would indicate that Section 6(e)Ehas been interpreted as extending to substantive proceedings,but pure matter of procedure is excluded. change offorum, like matters of evidence and civil procedure is apure matter of procedure. Section 6(e) would hence not beapplicable where new legislation results in change ofFforum;

(v)Where law takes away right of action or appeal, it istreated as substantive alteration and does not apply topending actions. mere change in forum is to bedistinguished from substantive alteration. The Act of 2019is law which repeals the earlier legislation and created anew hierarchy of courts and it must, consequentially, betreated as retroactive;

118SUPREME COURT REPORTS

A(vi)The right of appeal is substantive right which accrues atthe date of the institution of proceeding. An amendmenttaking away this right imposes substantive alteration andis therefore construed to be prospective. This principle doesnot apply where there is only change of forum;

B(vii)The Act of 2019 does not abrogate existing rights. On thecontrary, it preserves and provides for an additional right ofappeal where, as result of the legislation, complaint whichcould earlier be filed before the NCDRC has to be filedbefore the SCDRC. complaint before the SCDRC wouldhave to be instituted before the District Commission. TheCright to appeal is therefore strengthened and not truncated;

(viii) Section 34 empowers the District Commission withjurisdiction “to entertain complaints” and similar provisionhas been made in Section 47(1)(a) pertaining to the SCDRCand Section 58(1)(a) pertaining to the NCDRC. ThisDexpression emphasizes that it applies at every point of timewhen matter is entertained for adjudication or forconsideration on merits;

(ix)The Act of 2019 abolished the old hierarchy of fora underthe Act of 1986 and established adjudicatory fora afresh.EThe case pending before one of the fora governed by theAct of 1986 ceases to be pending because the Act of 2019has, by its repeal, abolished the existing adjudicatory bodies.Sections 28, 42 and 53 established new adjudicatory bodiesafresh under the Act of 2019. This is evident from theFprovisions of Section 31, 45 and 56 under which judicialpersonnel of the erstwhile fora were permitted to continueunder the Act of 2019;

(x)The Act of 2019 indicates contrary intent within themeaning of Section 6 of the General Clauses Act; andG(xi)The principle that repeal of statute obliterates the effectsand consequence of the earlier legislation, is subject to threeexceptions:

(a)Concluded transactions continue to be governed bythe old law;

(b)Where right of appeal or of action is abrogated orAin situation where clogs are imposed on the right,such rights continue to be preserved notwithstandingthe repeal; and

(c)Where substantive liability or right is imposed orconferred, this would be treated as prospective. Onthe other hand, the consistent view under Section 6(e) is that it does not apply to mere change of forum.

B. The sum and substance of the submissions which were urgedby Mr Krishnan Venugopal, learned Senior Counsel is that where lawprovides for change in forum, this is treated as matter of procedureand not of substance. The Act of 2019 is not legislation merely enhancingthe limits of the pecuniary jurisdiction by an amendment to the Act of1986. On the contrary, the Act of 2019 is completely new law, whichabolished the hierarchy of tribunals under the erstwhile Act of 1986 andcreated new adjudicatory hierarchy. As matter of interpretation, theAct of 2019 clearly indicates an intention to the contrary as result ofwhich pending proceedings will not continue before the forums whichexisted under the Act of 1986. In other words, the limits of pecuniaryjurisdiction which have been defined under the Act of 2019 will apply toall pending actions and transfer of existing cases would be required inthose cases where the jurisdiction to entertain the complaint lies withinthe pecuniary limits of the newly established forum. In support of hissubmissions, Mr Venugopal relied on line of precedent which would bediscussed while analyzing the rival contentions.

14. The rival submissions are now considered.

Position of law on change of forum: An analysis ofprecedent

C.1 Venugopala Reddiar (1943- Federal Court 3 judges)

15. The discussion on the law begins with the decision of theFederal Court in Venugopala Reddiar v. Krishnaswami Reddiar, aliasRaja Chidambara Reddiar[19] which considered the validity of pendingproceeding when the court had lost territorial jurisdiction. Before 1937,when Burma was part of British India, it was permissible under Section17 of the Civil Procedure Code to include immovable property situated

19 AIR 1943 FC 24

Ain Burma as part of the subject matter of suit. The principal respondentinstituted suit for the recovery of certain properties. large portion ofthese properties was situated in Rangoon, Burma. The suit had beeninstituted before the Trichinopoly Court. After Burma ceased to be apart of India on 1 April 1937, the contesting defendants objected to thejurisdiction of the Court to deal with the Burma property. The Trial JudgeBupheld the objection that it no longer had jurisdiction over property situatedin Burma. This was reversed by Division Bench of the Madras HighCourt. The Division Bench held that Article 10 of the Government ofIndia (Adaptation of Indian Laws) Order 1937 provided that the powersexercisable by any authority, which in the view of the High Court wouldCinclude Court, before the separation came into force should continueto be exercised until contrary provision was passed by the legislature.The High Court also held that right to continue duly instituted suitwas in the nature of vested right which cannot be taken away exceptby clear legislative intent. Justice Srinivasa Varadachariar summed upthe legal principle at page 48 by observing:D“..The true position, as we have already stated, is not whetherthere is an express provision permitting the continuance of pendingproceedings, but whether there is any clear indication against thecontinuance of pending proceedings to their normal termination.”

EIn an earlier part of the judgment, the Court noted that paragraph(e) of sub- Section (2) of Section 38 of the Interpretation Act, 1889provides that any legal proceedings in respect of any right acquired oraccrued under the repealed enactment may “continue as if the repealingAct had not been passed”. Noting that the interpretation of this paragraphis not free from difficulty, Justice Varadachariar observed that the viewFhas sometimes been taken that what is saved is substantive right acquiredunder the repealed enactment and that the paragraph cannot be invokedin cases where the substantive right is not taken away by the repealingAct but the mere forum for, or the method of enforcing it is changed. Onthe other hand, the Court noted, it has been maintained that right toGobtain relief in suit pending at the time when the repealing enactmentcomes into operation is itself in the nature of substantive right. Of thethree grounds which had weighed with the High Court in affirming thejurisdiction of the Trial Court, the Federal Court rested its decision onthe principle contained in the ruling of the Privy Council in Colonial

Sugar Refining Company Ltd. v. Irving[20] which held that right toappeal is substantive right whose amendment would generally beprospective:

“As regards the general principles applicable to the case therewas no controversy. On the one hand, it was not disputed that ifthe matter in question be matter of procedure only, the petitionis well founded. On the other hand, if it be more than matter ofprocedure, if it touches right in existence at the passing of theAct, it was conceded that, in accordance with long line ofauthorities extending from the time of Lord Coke to the presentday, the appellants would be entitled to succeed. The JudiciaryAct is not retrospective by express enactment or by necessaryintendment. And therefore the only question is: was the appeal toHis Majesty in Council right vested in the appellants at the dateof the passing of the Act, or was it mere matter of procedure?It seems to Their Lordships that the question does not admit ofdoubt. To deprive suitor in pending action of an appealto superior tribunal which belonged to him as of right is avery different thing from regulating procedure. In principle,Their Lordships see no difference between abolishing anappeal altogether and transferring the appeal to newtribunal. In either case there is an interference with existingrights contrary to the well-known general principle thatstatutes are not to be held to act retrospectively unless aclear intention to that effect is manifested.” (emphasissupplied)

The principle enunciated by the Privy Council in Colonial SugarRefining was reiterated.

C.2 Kiran Singh v. Chaman Paswan (1954- Supreme Court4 judges)

16. In Kiran Singh v. Chaman Paswan[21], the appellant’s suitfor recovery of land on the basis of the eviction of the defendants wasdismissed by the Subordinate Judge which was affirmed in appeal.When the matter was taken up in second appeal to the Punjab HighCourt, an objection to the valuation of the plaint was raised by the

20 (1905) AC 36921 AIR 1954 SC 340

Astamp reporter and the correct valuation was determined on which theplaintiffs paid additional court fees. On the revised valuation, theplaintiffs raised the plea that the appeal from the decree of theSubordinate Judge would not lie to the District Court but to the HighCourt and that accordingly the second appeal should be heard as afirst appeal against the judgment of the District Court. Following theBFull Bench decision, the High Court held that the appeal to the DistrictCourt was competent and its decision should be reversed only ifprejudice were shown on merits. In appeal, this Court noted that on aplaint valuation, the appeal would lie to the District Court whereas onthe valuation as determined by the High Court, it was held that it wasCcompetent to entertain the appeal. On this basis, it was argued thedecision of the District Court was nullity. This Court rejected thecontention that the decree was nullity, holding that an objection to thepecuniary jurisdiction shall not be entertained by an Appellate Courtunless there has been consequent failure of justice. Dealing with theargument that prejudice had been caused to the appellants in that byDreason of the undervaluation, their appeal was heard by Court ofinferior jurisdiction while they were entitled to first appeal before theHigh Court, this Court held:“11. It is next contended that even treating the matter as governedby Section 11 of the Suits Valuation Act, there was prejudice toEthe appellants, in that by reason of the undervaluation, their appealwas heard by court of inferior jurisdiction, while they wereentitled to hearing by the High Court on the facts. It wasargued that the right of appeal was valuable one, and thatdeprivation of the right of the appellants to appeal to the HighFCourt on facts must therefore be held, without more, to constituteprejudice. This argument proceeds on misconception. The rightof appeal is no doubt substantive right, and itsdeprivation is serious prejudice; but the appellants havenot been deprived of the right of appeal against thejudgment of the Subordinate Court. The law does provideGan appeal against that judgment to the District Court, andthe plaintiffs have exercised that right. Indeed, theundervaluation has enlarged the appellants’ right of appeal,because while they would have had only right of oneappeal and that to the High Court if the suit had beenHcorrectly valued, by reason of the undervaluation they

obtained right to two appeals, one to the District Courtand another to the High Court. The complaint of theappellants really is not that they had been deprived of aright of appeal against the judgment of the SubordinateCourt, which they have not been, but that an appeal onthe facts against that judgment was heard by the DistrictCourt and not by the High Court. This objection thereforeamounts to this that change in the forum of appeal is byitself matter of prejudice for the purpose of Section 11of the Suits Valuation Act.

15. So far, the definition of “prejudice” has been negativein terms — that it cannot be mere change of forum or mereerror in the decision on the merits. What then is positivelyprejudice for the purpose of Section 11? That is question whichhas agitated courts in India ever since the enactment of the section.It has been suggested that if there was no proper hearing of thesuit or appeal and that had resulted in injustice, that would beprejudice within Section 11 of the Suits Valuation Act. Anotherinstance of prejudice is when suit which ought to have beenfiled as an original suit is filed as result of undervaluation on thesmall cause side. The procedure for trial of suits in the SmallCause Court is summary; there are no provisions for discovery orinspection; evidence is not recorded in extenso, and there is noright of appeal against its decision. The defendant thus loses thebenefit of an elaborate procedure and right of appeal which hewould have had if the suit had been filed on the original side. Itcan be said in such case that the disposal of the suit by theCourt of Small Causes has prejudicially affected the merits ofthe case. No purpose, however, is served by attempting toenumerate exhaustively all possible cases of prejudice whichmight come under Section 11 of the Suits Valuation Act. Thejurisdiction that is conferred on appellate courts under that sectionis an equitable one, to be exercised when there has been anerroneous assumption of jurisdiction by subordinate court as aresult of overvaluation or under valuation and consequentialfailure of justice. It is neither possible nor even desirable to definesuch jurisdiction closely, or confine it within stated bounds. It

can only be predicated of it that it is in the nature of revisionaljurisdiction to be exercised with caution and for the ends of justice,whenever the facts and situations call for it. Whether there hasbeen prejudice or not is, accordingly, matter to be determinedon the facts of each case.”(emphasis supplied)

17. Therefore, this court made clear distinction betweenamendments impacting substantive right of appeal and amendmentswhich merely alter the forum where such an appeal could be urged. Thelatter could not be construed as having caused prejudice as it was notsubstantive in nature.

CC.3 Garikapati (1957- Supreme Court Constitution Bench)

18. In Garikapati (supra), Chief Justice S R Das speaking forthe Constitution Bench, formulated the legal principles which governthis area of interpretative jurisprudence. The decision in Garikapati(supra) is the locus classicus on subject of the substantive right of appealDvis-à-vis pending proceedings. The five principles which were enunciatedin paragraph 23 of the decision are extracted below:

(i) That the legal pursuit of remedy, suit, appeal and secondappeal are really but steps in series of proceedings allEconnected by an intrinsic unity and are to be regarded asone legal proceeding.

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

(iii) The institution of the suit carries with it the implication that allFrights of appeal then in force are preserved to the parties theretotill the rest of the career of the suit.

(iv) The right of appeal is vested right and such right to enterthe superior court accrues to the litigant and exists as on and fromthe date the lis commences and although it may be actuallyGexercised when the adverse judgment is pronounced such right isto be governed by the law prevailing at the date of the institutionof the suit or proceeding and not by the law that prevails at thedate 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 asubsequent enactment, if it so provides expressly or by necessaryintendment and not otherwise.”(emphasis supplied)

The Constitution Bench clarified that the right of appeal is vestedright which cannot be taken away, absent statutory enactment to theeffect. It was also clarified that the right to appeal would vest, once thesuit is instituted.

C.4 Mohd. Idris (1965- Supreme Court Constitution Bench)

19. In Mohd. Idris v. Sat Narain[22], Constitution Bench of thisCourt considered whether pending application filed on 27 May 1952under the UP Agriculturist Relief Act for redemption of mortgage wasrendered incompetent upon the passing of the UP Zamindari Abolitionand Land Reforms (Amendment) Act 1953 which was brought into forcewith retrospective effect on 1 July 1952. The question, as Justice MHidayatullah (as the learned Chief Justice then was) formulated was,“whether the right of the plaintiff to continue the suit under the old lawwas in any way impaired”. Dealing with the provisions of Section 6 ofthe UP General Clauses Act 1897 (which is pari materia to thecorresponding provisions of the General Clauses Act), the Court held:

“7…The question is whether different intention appears in eitherthe Abolition Act or the Amending Act 16 of 1953, for otherwisethe old proceeding could continue before the Munsif. There isnothing in the Abolition Act which takes away the right of suit inrespect of pending action. If there be any doubt, it is removedwhen we consider that the U.P. Agriculturist Relief Act wasrepealed retrospectively from July 1, 1952 only and it is not,therefore, possible to give the repeal further retrospectivity so asto affect suit pending from before that date. The jurisdictionof the Assistant Collector was itself created from July 1,1952 and there is no provision in the Abolition Act thatpending cases were to stand transferred to the AssistantCollector for disposal. Such provisions are commonly foundin statute which takes away the jurisdiction of one courtand confers it on another. From these two circumstances itis to be inferred that if there is at all any expression ofintention, it is to keep Section 6 of the General Clauses

Act applicable to pending litigation. The doubt, if any be left,is further removed if we consider later amending Act, namely,amending Act 18 of 1956. By that Act Schedule II, which createdthe jurisdiction of the Assistant Collector in suits for ejectment ofasamis was replaced by another Schedule. The entry relating tosuits for ejectment of asamis, however, remained the same. ButSection 23 of the amending Act of 1956 created special savingwhich reads as follows:

“23. Saving.—(i) Any amendment made by this Act shallnot effect the validity, invalidity, effect or consequence ofanything already done or suffered, or any right, title obligationor liability already acquired, accrued or incurred or anyjurisdiction already exercised, and any proceeding institutedor commenced before any court or authority prior to thecommencement of this Act shall, notwithstanding anyamendment herein made, continue to be heard and decidedby such court or authority.

(ii) An appeal, review or revision from any suit or proceedinginstituted or commenced before any court or authority priorto the commencement of this Act shall, notwithstanding anyamendment herein made, lie to the Court or authority towhich it would have laid if instituted or commenced beforethe said commencement.”

The addition of this section clearly shows that by theconferral of the jurisdiction upon the Assistant Collector itwas not intended to upset litigation pending beforeappropriate authorities when the Abolition Act came intoforce. Section 23 in terms must apply to the present case, becauseif it had remained pending before the Munsif, till 1956, it is clear,the jurisdiction of the Munsif would not have been ousted. Althoughit was not pending before the Munsif it was pending before theappellate court when the 1956 Amendment Act was passed. Itfollows, therefore, that to such suit the provisions of Schedule IIread with Section 200 of the Abolition Act cannot be appliedbecause the legislature has in 1956 said expressly what was implicitbefore, namely, that pending actions would be governed by theold law as if the new law had not been passed. In our judgment,therefore, the proceedings before the Munsif were with jurisdiction

because they were not affected by the passing of the AbolitionAct or the amending Act, 1953, regard being had to the provisionsof Section 6 of the U.P. General Clauses Act in the first instanceand more so in view of the provisions of Section 23 of the amendingAct, 1956 which came before the proceedings between the partieshad finally terminated. The appeal must, therefore, fail. It will bedismissed with costs.”

(emphasis supplied)

20. The Constitution Bench relied on the absence of provisionfor transfer of pending actions under the repealing legislation to save theproceedings at the old forum. The Constitution Bench observed thatprovisions of transfer of pending cases are commonly found in suchlegislations. It is pertinent to mention that the subsequent repealinglegislation materially altered the position of the parties. The mortgageeappellants were resisting their ejectment from the suit land by therespondent mortgagor in suit for redemption of mortgage on the groundthat they have become asamis or sirdars under the repealing legislationand their ejectment can only take place in accordance with the provisionsof the new Act. Hence, the effect of the repeal was not mere changein forum. Further, subsequent amendment to the repealing legislationmade it clear that the pending proceedings would be concluded at theearlier forum where they had been instituted and under the repealedlegislation.

C.5 Manujendra Dutt (1966 Supreme Court- 2 judges)

21. In Manujendra Dutt v. Purnedu Prosad Roy Chowdhury[23],a two judge Bench of this Court consisting of Chief Justice K SubbaRao and Justice J M Shelat dealt inter alia with the jurisdiction of theController under the Calcutta Thika Tenancy Act 1949, after the deletionof Section 29 by Amending Act 6 of 1953, in respect of proceedingspending before him on that date. The High Court had taken the viewthat in spite of the deletion of Section 29, the jurisdiction of the Controllerin respect of matters pending before him on the date of the coming intoforce of the Amending Act was saved. The submission which was urgedbefore this Court was that since it was only by reason of Section 29 thatthe suit had been transferred to the Controller, the deletion of that Sectionfrom the legislation had the effect of depriving the Controller of its

23 “Manujendra Dutt” ; (1967) 1 SCR 475

Ajurisdiction and hence the judgment and order, though confirmed by theSubordinate 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 Actof 1953 the deletion would not affect pending proceedingsBand would not deprive the Controller of his jurisdiction totry such proceedings pending before him at the date whenthe amendment Act came into force. Though theamendment Act did not contain any saving clause, underSection 8 of the Bengal General Clauses Act, 1899, thetransfer of the suit having been lawfully made under SectionC29 of the Act its deletion would not have the effect ofaltering the law applicable to the claim in the litigation.There is nothing in Section 8 of the amending Act of 1953suggesting different intention and therefore the deletionwould not affect the previous operation of Section 5 of the CalcuttaDThika Tenancy Act or the transfer of the suit to the Controller oranything duly done under Section 29. That being the correct positionin law the High Court was right in holding that in spite of thedeletion of Section 29 the Controller still had the jurisdiction toproceed with the said suit transferred to him.”

(emphasis supplied)

22. The above extract indicates that the Amending Act did notcontain savings clause under Section 8 of the Bengal General ClausesAct 1899. Despite the absence of savings clause, the Court held thatthe deletion of Section 29 did not have the effect of altering the lawFapplicable to the claim in the litigation and there was nothing in theamending Act to indicate contrary intention. At this stage, it may benecessary to note that the second issue involved was the right of thethika tenant as defined by the Act to the notice provided under the deedof lease. On this aspect, the decision in Manujendra Dutt(supra) hasbeen overruled in the seven judge Bench decision in V DhanapalGChettiar v. Yesodai Ammal[24]. It is pertinent to mention that the decisionin Manujendra Dutt(supra), was concerned with the provisions of therepealing Act that impacted substantive right of litigants which wasaffected by virtue of the repeal and resulting change in forum. ThisCourt’s position, in interpreting Section 6 of the General Clauses Act,H24 (1979) 4 SCC 214

1897 was clearly in favour of saving all substantive rights, including vestedrights, that were acquired or accrued prior to the repeal. Under theunamended Act, the suit was transferred to the Controller under Section29, which was deleted by the Amending Act. In this context the Courtheld that on account of Section 8 of the Bengal General Clauses Act, thedeletion would not affect the transfer of the suit or anything duly doneunder Section 29 (paragraph 5). This Court’s decision hence may not berelevant in interpreting Section 6(e) of the General Clauses Act, rather itis useful for interpretating Section 6(b) of the General Clauses Act whichprotects “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 mere changein forum, that did not impact any other substantive or vested right of thelitigant, was three judge bench decision of this Court in New IndiaAssurance Company Limited v. Smt Shanti Mishra[25]. This caseinvolved the jurisdiction of the Motor Vehicles Tribunal vis-à-vis the CityCivil Court, in the case of fatal accident. The accident had occurredon 11 September 1966 which gave rise to cause of action for the legalheirs to claim compensation under the Fatal Accidents Act 1855. UnderArticle 82 of the Limitation Act 1963, limitation of two years from theoccurrence of the accident was stipulated. But in the meantime, claimstribunal under Section 110 of the Motor Vehicles Act 1939 was constitutedby the State government on 18 March 1967 following which an applicationwas filed by the claimant under Section 110A on 8 July 1967. Both thetribunal and the High Court overruled the objection of the insurer tojurisdiction. In appeal, Justice NL Untwalia speaking for the three judgeBench held:

“5…..It is well-established proposition that such changeof law operates retrospectively and the person has to go tothe new forum even if his cause of action or right of actionaccrued prior to the change of forum. He will have vestedright of action but not vested right of forum. If by expresswords the new forum is made available only to causes ofaction arising after the creation of the forum, then theretrospective operation of the law is taken away. Otherwisethe general rule is to make it retrospective. The expressions

25 “New India Assurance”; (1975) 2 SCC 840

A“arising out of an accident” occurring in sub-section (1) and “overthe area in which the accident occurred”, mentioned in sub-section(2) clearly show that the change of forum was meant to beoperative retrospectively irrespective of the fact as to when theaccident occurred. To that extent there was no difficulty in givingthe answer in simple way…”(emphasis supplied)B

Dealing with the bar of limitation under Section 110A(3), this Courtheld that it could be said that strictly speaking the bar would not operatein relation to an application for compensation arising out of an accidentwhich had occurred prior to the constitution of the Tribunal. However, indirecting the institution of claims before the Tribunal, this Court held:C

“10. Apropos the bar of limitation provided in Section 110- A(3),one can say, on the basis of the authorities aforesaid that strictlyspeaking, the bar does not operate in relation to an application forcompensation arising out of an accident which occurred prior tothe constitution of the claims tribunal. But since in such caseDthere is change of forum, unlike the fact of the said cases,the reasonable view to take would be that such anapplication can be filed within reasonable time of theconstitution of the tribunal, which ordinarily and generally,would be the time of limitation mentioned in sub-sectionE(3). If the application could not be made within that timefrom the date of the constitution of the tribunal, in givencase, the further time taken in the making of the applicationmay be held to be the reasonable time on the facts of thatcase for the making of the application or the delay madeafter the expiry of the period of limitation provided in sub-Fsection

(3) from the date of the constitution of the tribunal can becondoned under the proviso to that sub-section. In any viewof the matter, in our opinion, the jurisdiction of the civilcourt is ousted as soon as the claims tribunal is constitutedGand the filing of the application before the tribunal is theonly remedy available to the claimant. On the facts of thiscase, we hold that the remedy available to the respondents was togo before the claims tribunal and since the law was not very clearon the point, the time of about four months taken in approachingthe tribunal after its constitution can be held to be either aHreasonable time or the delay of less than 2 months could well becondoned under the proviso to sub-section (3) of Section 110-A.”

(emphasis supplied)

The above decision conclusively held that change of forumgenerally operates retrospectively, irrespective of whether the cause orright of action had accrued earlier. It directed that once the change inforum had been effected, the litigant would have to be directed to thenew forum.

C.7 Maria Cristina (1978- Supreme Court- 2 judges)

24. subsequent decision of two judge Bench of this Court inMaria Cristina De Souza v. Amria Zurana Pereira Pinto[26], enunciatedthe law relating to change of forum vis-à-vis the right of appeal. In thatcase, suit was instituted in 1960 under the Portuguese Civil ProcedureCode and decreed against the appellants in 1968. The appellants lodgedan appeal before the Court of the Judicial Commissioner. Following theliberation of Goa in 1961, the Code of Civil Procedure 1908 was extendedto the territories of Goa, Daman and Diu with effect from 15 June 1966by Act 30 of 1965 and the corresponding provision and the correspondingPortuguese Code were repealed. The legislative assembly of Goa enactedthe Goa, Daman and Diu Civil Courts Act 1965 under which the suitwhich was pending before the Court at Margao was transferred to anddecreed by the Senior Civil Judge. Since the suit was of value exceedingRs 10 lacs an appeal lay directly to the High Court which under Section2(f) meant the Judicial Commissioner’s Court. Justice V Tulzapurkar,speaking for the two judge Bench held:

“5. On the question as to where the appeal could be lodged weare clearly of the view that the forum was governed by theprovisions of the Goa, Daman and Diu (Extension of Code ofCivil Procedure, 1908 and Arbitration Act, 1940) Act, 1965 (CentralAct 30 of 1965) read with the provisions of the Goa, Daman andDiu civil court Act, 1965 (Goa Act 16 of 1965) both of whichcame into force simultaneously on June 15, 1966 and the appealwas required to be filed in the Judicial Commissioner’s Court.Under the Central Act 30 of 1965 with effect from June 15, 1966the provisions of the Indian Civil Procedure Code were extendedto the Union Territories of Goa, Daman and Diu and the

26 “Maria Cristina”; (1979) 1 SCC 92

Acorresponding provisions of the Portuguese Code were repealedwhile under the Goa Act 16 of 1965 the instant suit which waspending before the Comarca Court at Margao was continued anddecreed by corresponding Court of the Senior Civil Judge, whoultimately decreed it on March 8, 1968. Under the Indian CivilProcedure Code read with Section 22 of the Goa Act since theBproperty involved in the suit was of the value exceeding Rs 10,000the appeal clearly lay to the Judicial Commissioner’s Court. Thecontention that since the right of appeal had been conferredby Portuguese Code, the forum where it could be lodgedwas also governed by the Portuguese Code cannot beCaccepted. It is no doubt well- settled that the right of appealis substantive right and it gets vested in litigant nosooner the lis is commenced in the Court of the firstinstance, and such right or any remedy in respect thereofwill not be affected by any repeal of the enactment conferringsuch right unless the repealing enactment either expresslyDor by necessary implication takes away such right or remedyin respect thereof. This position has been made clear by clauses(b) and (c) of the proviso to Section 4 of the Central Act 30 of1965 which substantially correspond to clauses (c) and (e) ofSection 6 of the General Clauses Act, 1897. This position, hasEalso been settled by the decisions of the Privy Council and thisCourt (vide Colonial Sugar Refining Company Ltd. v. Irving[1905 AC 369] and Garikapatti Veeraya v. N. SubbiahChoudhury [1957 SCR 488] but the forum where such appealcan be lodged is indubitably procedural matter and,therefore, the appeal, the right to which has arisen under aFrepealed Act, will have to be lodged in forum providedfor by the repealing Act. That the forum of appeal, and alsothe limitation for it, are matters pertaining to procedurallaw will be clear from the following passage appearing at p. 462of Salmond’s Jurisprudence (12th Edn.):

“Whether I have right to recover certain property is questionof substantive law, for the determination and the protection ofsuch rights are among the ends of the administration of justice;but in what courts and within what time I must instituteproceedings are questions of procedural law, for they relate merelyHto the modes in which the courts fulfil their functions.”

It is true that under clause (c) of the proviso to Section 4 of CentralAct 30 of 1965 (which corresponds to Section 6(e) of the GeneralClauses Act, 1897) it is provided that remedy or legal proceedingin respect of vested right like 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 theremedy or legal proceeding in respect of such vested rightwhich it is open to the litigant to adopt notwithstanding therepeal but this provision has nothing to do with the forumwhere the remedy or legal proceeding has to be pursued.If the repealing Act provides new forum where the remedyor the legal proceeding in respect of such vested right canbe pursued after the repeal, the forum must be as providedin the repealing Act. We may point out that such view ofSection 6 (e) of the General Clauses Act, 1897 has been taken bythe Rajasthan High Court in the case of Purshotam Singh v.Narain Singh and State of Rajasthan [AIR 1955 Raj 203] . It isthus clear that under the repealing enactment (Act 30 of 1965)read with Goa Enactment (Act 16 of 1965) the appeal lay to theJudicial Commissioner’s Court and the same was accordingly filedin the proper Court.” (emphasis supplied)25. The decision in Maria Cristina (supra) makes distinctionbetween right of appeal, which is substantive right that is vested in alitigant on the commencement of the lis in the court of first instance andthe forum where an appeal can be lodged which “is indubitably aprocedural matter”. Hence, in the view of the Court, the appeal wouldhave to be lodged in forum provided by the repealing Act though theright had arisen under the repealed Act. These observations of the Courtmust be read together with the subsequent observation that if the repealingact provides new forum where the remedy or the legal proceeding inrespect of such vested right can be pursued after the repeal, the forummust be as provided in the repealing Act. The decisions in New India

Assurance(supra) and Maria Cristina (supra) further theinterpretation that change in forum is indubitably in the realm ofprocedural law that applies retrospectively, unless the statute providesotherwise. The necessary corollary of these decisions, is that the forumfor determination of lis, whether in the case of an appeal [MariaCristina (supra)] or in situations where the right of action had accrued[New India Assurance (supra)] is in the realm of procedural law.

AC.8 Hitendra Vishnu Thakur (1994- Supreme Court 2judges)

26. In Hitendra Vishnu Thakur v. State of Maharashtra[27],one among the questions analyzed in two judge Bench decision of thisCourt was whether clause (bb) of Section 20(4) of the Terrorist andBDisruptive Activities (Prevention) Act 1987[28] introduced by an amendinglegislation governing Section 167(2) of the Code of Criminal Procedure[29]was in the realm of procedural law and if so, whether it would apply topending cases. Dr Justice AS Anand (as he then was) held that amendingAct 43 of 1993 was procedural and retrospective; and that clauses (b)and (bb) of Section 20(4) of the TADA would apply to cases whichCwere pending investigation on the date when it came into force. In thatcontext, the principles of law, that aligned with the position in New IndiaAssurance(supra) and Maria Cristina(supra), were formulated inthe following terms:

“26. The Designated Court has held that the amendment wouldDoperate retrospectively and would apply to the pending cases inwhich investigation was not complete on the date on which theAmendment Act came into force and the challan had not till thenbeen filed in the court. From the law settled by this Court in variouscases the illustrative though not exhaustive principles which emergeEwith regard to the ambit and scope of an Amending Act and itsretrospective operation may be culled out as follows:

(i) statute which affects substantive rights is presumed to beprospective in operation unless made retrospective, either expresslyor by necessary intendment, whereas statute which merelyFaffects procedure, unless such construction is textually impossible,is presumed to be retrospective in its application, should not begiven an extended meaning and should be strictly confined to itsclearly defined limits.

(ii) Law relating to forum and limitation is procedural inGnature, whereas law relating to right of action and right ofappeal even though remedial is substantive in nature.

27 “Hitendra Vishnu Thakur”; (1994) 4 SCC 60228 “TADA”29 “CrPC”H

(iii) Every litigant has vested right in substantive law butno such right exists in procedural law.

(iv) procedural statute should not generally speaking be appliedretrospectively where the result would be to create new disabilitiesor obligations or to impose new duties in respect of transactionsalready accomplished.

(v) statute which not only changes the procedure but also createsnew rights and liabilities shall be construed to be prospective inoperation, unless otherwise provided, either expressly or bynecessary implication.” (emphasis supplied)

C.9 Sudhir Angur (2005- Supreme Court 3 judges)

27. In Sudhir Angur v. M Sanjeev[30], three judge Bench ofthis Court considered the impact of change in procedural law to pendingproceedings before particular forum. In this case, the Mysore Codewas repealed in 2003 and the Code of Civil Procedure, 1908 was toapply. This Court held that the relevant court was under duty to takenotice of the change in law relating to forum and apply it to pendingproceeding. In doing so, Justice SN Variava approved the followingexposition of law of the Bombay High Court in Shiv Bhagwan MotiRam Saroji v. Onkarmal Ishar Das[31]:

“11. In our view, Mr G.L. Sanghi is also right in submittingthat it is the law on the date of trial of the suit which is to beapplied. In support of this submission, Mr Sanghi relied upon thejudgment in Shiv Bhagwan Moti Ram Saraoji v. Onkarmal IsharDass [AIR 1952 Bom 365 : 54 Bom LR 330] wherein it has beenheld that no party has vested right to particularproceeding or to particular forum. It has been held that itis well settled that all procedural laws are retrospectiveunless the legislature expressly states to the contrary. Ithas been held that the procedural laws in force must beapplied at the date when the suit or proceeding comes onfor trial or disposal. It has been held that court is boundto take notice of the change in the law and is bound toadminister the law as it was when the suit came up forhearing. It has been held that if court has jurisdiction to try the

30 “Sudhir Angur”; (2006) 1 SCC 141

31 (1952) 54 Bom LR 330

Asuit, when it comes on for disposal, it then cannot refuse to assumejurisdiction by reason of the fact that it had no jurisdiction toentertain it at the date when it was instituted. We are in completeagreement with these observations. As stated above, the MysoreAct now stands repealed. It could not be denied that now theCourt has jurisdiction to entertain this suit.” (emphasis supplied)B

C.10 Ramesh Kumar Soni (2013- Supreme Court 2 judges)

28. It is trite law to state that all procedural law is retrospective,unless contrary legislative intention can be observed. two judge Benchin Ramesh Kumar Soni v. State of Maharashtra[32] considered caseCwhere 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 registrationof the case, the offences were triable by the Magistrate of the FirstClass in terms of the First Schedule of the CrPC. As result of MadhyaPradesh Act 2 of 2008, the First Schedule to the CrPC was amended.As consequence, offences under Sections 467, 468 and 471 wereDtriable by Court of Sessions instead of JMFC. Consequent to theamendment, the JMFC committed the case to the Sessions Court. Areference was made to the High Court on whether the amendment wouldapply retrospectively and whether cases pending before the JMFC andcommitted to the Sessions Court should be tried de novo by the SessionsEJudge or should be remanded back to the Magistrate for further trial. AFull Bench of the Madhya Pradesh High Court held that cases pendingbefore the JMFC on 22 February 2008 were unaffected by the amendmentand were triable by the JMFC since the amending Act did not contain aclear indication that such cases would be made over to the Court ofSessions. Justice TS Thakur (as the learned Chief Justice then was)Fspeaking for the two judge Bench observed that the Madhya PradeshAmendment had shifted the forum of trial from the Court of the Magistrateof the First Class to the Court of Sessions. The issue was whether theamendment to the forum was prospective or would govern cases thatwere pending on the date of the amendment. This Court noted that:G“9. Having said so, we may now examine the issue from slightlydifferent angle. The question whether any law relating to forumof trial is procedural or substantive in nature has been the subject-matter of several pronouncements of this Court in the past. Wemay refer to some of these decisions, no matter briefly.”

H32 “Ramesh Kumar Soni”; (2013) 14 SCC 696

After adverting to the decisions in New India Assurance(supra),Hitendra Vishnu Thakur(supra) and Sudhir Angur(supra), theCourt observed:

“14. The amendment to the Criminal Procedure Code in the instantcase has the effect of shifting the forum of trial of the accusedfrom the Court of the Magistrate, First Class to the Court ofSession. Apart from the fact that as on the date the amendmentcame into force no case had been instituted against the appellantnor had the Magistrate taken cognizance against the appellant,any amendment shifting the forum of the trial had to be on principleretrospective in nature in the absence of any indication in theAmendment Act to the contrary. The appellant could not claim avested right of forum for his trial for no such right is recognized.The High Court was, in that view of the matter, justified in (sicnot) interfering with the order passed by the trial court.”This Court noted that the Full Bench of the High Court had howeverrelied upon inter alia the decision in Manujendra Dutt(supra). Thisdecision was distinguished on the ground that the suit had been institutedand concluded and no vested right could be claimed for particularforum for litigation. This Court consequently overruled the judgment ofthe Full Bench of the High Court, though prospectively, since many caseswhich had sent back from the Sessions Court to the JMFC may have inthe meantime been concluded or would have reached an advanced stage.An exception to those cases was made as change of forum at thatstage would cause unnecessary and avoidable hardship to the accused,if they were committed to the Sessions Court for trial after the amendmentand the view of this Court. However, the principle of change of forumbeing procedural, generally retrospective and applicable to pendingproceedings was upheld.

C.11 Dhadi Sahu (1992 Supreme Court 2 judges)

29. Now, in this backdrop, it becomes necessary to consider the1992 decision of two judge Bench of this Court in Commissioner ofIncome Tax, Orissa v. Dhadi Sahu[33] and several decisions whichadverted to it. This was case where the assessee had preferred appealsto the Income Tax Appellate Tribunal. The Tribunal allowed the appealsand set aside the penalties holding that in view of the amendment made

Ato Section 274(2) of the Income Tax Act 1961 with effect from 1 April1971, the Inspecting Assistant Commissioner[34] lost his jurisdiction. Thepower of the Income Tax Officer to impose penalty under Section 271was subject to Section 274. As result of the amending Act which cameinto force on 1 April 1971, the amount of income allegedly concealedhad to exceed twenty- five thousand rupees. The effect of thisBamendment was that the Assistant Commissioner did not have jurisdictionover the assessee as the concealed amount was lesser than the minimumamount prescribed by the subsequent amendment. Justice YogeshwarDayal speaking for the two judge Bench premised the judgment on “thegeneral principle of law” that change of forum does not affect pendingCactions unless contrary intent is shown:

“18. It may be stated at the outset that the general principle is thata law which brings about change in the forum does not affectpending actions unless intention to the contrary is clearly shown.One of the modes by which such an intention is shown is by makingDa provision for change-over of proceedings, from the court or thetribunal where they are pending to the court or the tribunal whichunder the new law gets jurisdiction to try them.”

This Court held that the amending Act did not make any provisionthat references validly pending before IAC shall be returned without

Epassing any final order if the amount of income in respect of whichparticulars have been concealed did not exceed rupees twenty fivethousand. This, in the view of the Court, supported the inference that theIAC continued to have jurisdiction to impose penalty on pendingreferences. The previous operation of Section 274(2) as it stood before1 April 1971 and anything done under it, continued to have effect underFSection 6(b) for the General Clauses Act enabling the IAC to pass ordersimposing penalty in pending reference. If the reference was madebefore 1 April 1971, it would be governed by Section 274(2) as it stoodbefore that date and the IAC would continue to have jurisdiction. However,in paragraph 21 of the decision, this Court observed:

G“21. It is also true that no litigant has any vested right in the matterof procedural law but where the question is of change of forum itceases to be question of procedure only. The forum of appeal orproceedings is vested right as opposed to pure procedure to befollowed before particular forum. The right becomes vestedH34 “IAC”

when the proceedings are initiated in the tribunal or the court offirst instance and unless the legislature has by express words orby necessary implication clearly so indicated, that vested rightwill continue in spite of the change of jurisdiction of the differenttribunals or forums.”

30. This Court then adverted to the decision in ManujendraDutt(supra) and Mohd. Idris(supra) and observed that “amending anAct does not show that the pending proceedings before the court onreference abate”. Therefore, the decision of the two judge Bench inDhadi Sahu(supra) held that litigant had crystallized right to forumwhen proceedings have been initiated and are pending. Such rightvested, in the view of the Court, is distinct from pure procedure to befollowed before the forum concerned. In taking this view, the two judgeBench in Dhadi Sahu(supra) did not consider three judge benchdecision in New India Assurance(supra) as well as previous co-ordinate Bench decision in Maria Cristina(supra), which relied oncommon law jurisprudence and Section 6 of the General Clauses Act tohold that change in forum is purely procedural matter which operatesretrospectively in the absence of contrary legislative mandate. Thelatter principle has since been followed in the decisions in HitendraVishnu Thakur(supra); Sudhir Angur(supra); Ranbir Yadav v.State of Bihar[35]; Kamlesh Kumar v. State of Jharkhand[36] andRamesh Kumar Soni (supra).

C.12 Ambalal Sarabhai (2001- Supreme Court 2 judges)

31. Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.[37]is two judge Bench decision which considered the impact of anamendment to the Delhi Rent Control Act made with effect from 1December 1988 which excluded the jurisdiction of the Rent Controllerwith respect to tenancies fetching monthly rent exceeding 3500 rupees.The Rent Controller had been moved by the landlord who sought decreeof eviction on the ground of subletting, but prior to the amendment. Thetenant contended that the Civil Court alone had jurisdiction after theamendment. In this backdrop, Justice AP Misra speaking for the twojudge Bench adverted to the provisions of Section 6 of the General ClausesAct and observed:

35 (1995) 4 SCC 392

36 (2013) 15 SCC 460

37 “Ambalal Sarabhai”; (2001) 8 SCC 397

A“26. As general rule, in view of Section 6, the repeal of statute,which is not retrospective in operation, does not prima facie affectthe pending proceedings which may be continued as if the repealedenactment were still in force. In other words, such repeal doesnot affect the pending cases which would continue to be concludedas if the enactment has not been repealed. In fact when lisBcommences, all rights and obligations of the parties get crystallizedon that date. The mandate of Section 6 of the General ClausesAct is simply to leave the pending proceedings unaffected whichcommenced under the unrepealed provisions unless contraryintention is expressed. We find clause (c) of Section 6, refers theCwords “any right, privilege, obligation… acquired or accrued”under the repealed statute would not be affected by the repealingstatute. We may hasten to clarify here, mere existence of aright not being “acquired” or “accrued” on the date of therepeal would not get protection of Section 6 of the GeneralClauses Act.

27. At the most such provision can be said to be granting aprivilege to the landlord to seek intervention of the Controller foreviction of the tenant under the Statute. Such privilege is not abenefit vested in general but is benefit granted and may beenforced by approaching the Controller in the manner prescribedEunder the statute. On filing the petition of eviction of the tenantthe privilege accrued with the landlord is not effected by repeal ofthe Act in view of section 6(c) and the pending proceeding issaved under Section 6(e) of the Act.” (emphasis supplied)

32. This Court noted that pending proceeding would be savedFunder Section 6(e) of the General Clauses Act only if it is in relation to aright, privilege or obligation that has been acquired or accrued underSection 6(c) of the Act. It is pertinent to mention that the landlord underthe amended act would have lost his right to evict the tenant on theground of sub-letting since the Rent Control Act ceased to be applicableGto premises where the monthly rent exceeded Rs. 3500. Further, pursuantto the amendment, not only was his right of action before the RentController terminated but also the landlord was relegated to commonlaw remedies. The amendment substantially affected the right of actionof the landlord and did not merely change the forum. It was in this context,that this Court held that right had accrued to the landlord to continueHthe eviction proceeding under the unamended Rent Control Act.

33. The Court observed that there are two sets of cases, onewhere Section 6 of the General Clauses Act is applicable and the otherwhere it is not applicable. In cases where Section 6 is not applicable, theCourt would have to scrutinize and determine whether vested righthad accrued to person under repealed statute in which event pendingproceedings would have to be saved. However, where Section 6 isapplicable, it is not merely vested right but all those covered by clauses(a) to (e) of Section 6 which are saved and, in such cases, the pendingproceedings would be continued as if the statute had not been repealed.In the context of Section 6(c) of the General Clauses Act, the Courtobserved that the expression “any right accrued” is wide enough to includethe landlord’s rights to evict tenant in proceeding was pending whenthe repealing legislation came into force. Pending proceedings beforethe Rent Controller would, therefore, continue to be proceeded with asif the repealed act was still in force. It is pertinent to mention that thedecision in Ambalal Sarabhai(supra) only saved pending proceedingsthat were coupled with vested right (in the event of non- applicabilityof Section 6 of the General Clauses Act) or with any rights that hadaccrued under Section 6(c)-(e) of General Clauses Act.

C.13 HP State Electricity (2013- Supreme Court 2 judges)

34. The principle of crystallized right to forum whenproceedings are pending, as propounded in Dhadi Sahu(supra), wassubsequently referred to in several decisions of this Court, including atwo judge bench decision in Himachal Pradesh State ElectricityRegulatory Commission v Himachal Pradesh State ElectricityBoard[38]. The Commission which was constituted under an Act of 1998determined the tariff applicable for electricity in the State. Subsequently,while discharging its regulatory functions, the Commission opined that apart of the tariff had not been complied with. In pursuance of its notice,the Board was subjected to penalty upon which an appeal was filedunder Section 27 of the Act of 1998. During the pendency of the appealthe earlier Act was repealed and the Electricity Act 2003 came intoforce. When the appeals were taken up by the Single Judge, theCommission raised preliminary objection on maintainability on the groundthat after the constitution of an Appellate Tribunal under the 2003legislation, it would be the Appellate Tribunal which would have jurisdictionand the High Court had no jurisdiction to hear the appeal. The High

142SUPREME COURT REPORTS

ACourt held that even after the enforcement of the new legislation in2003, it continued to have jurisdiction. The judgment of the High Courtwas assailed on the ground that the appeal was not maintainable beforeit, upon separate forum being constituted. Section 185 contained arepeal and savings provision. Justice Dipak Misra (as the learned chiefJustice then was) speaking for two judge Bench held that “a right ofBappeal as well as forum is vested right” unless it is taken away by thelegislature either by express provision or by necessary intention. TheCourt held:

“25. At this stage, we may state with profit that it is well- settledproposition of law that enactments dealing with substantive rightsCare primarily prospective unless they are expressly or by necessaryintention or implication given retrospectivity. The aforesaidprinciple has full play when vested rights are affected. In theabsence of any unequivocal expose, the piece of legislation mustexposit adequate intendment of legislature to make the provisionDretrospective. As has been stated in various authoritiesreferred to hereinabove, right of appeal as well as forumis vested right unless the said right is taken away by thelegislature by an express provision in the statute bynecessary intention.

E26…No doubt right to appeal can be divested but this requireseither direct legislative mandate or sufficient proof or reason toshow and hold that the said right to appeal stands withdrawn andthe pending proceedings stand transferred to different or newappellate forum. Creation of different or new appellate forumby itself is not sufficient to accept the argument/contention of anFimplied transfer. Something more substantial or affirmative isrequired which is not perceptible from the scheme of the 2003Act.” (emphasis supplied)

35. Hence, the conclusion of the High Court that it had jurisdictionto hear the appeal was held to be “absolutely flawless” by observingGthat “a right of appeal as

well as forum is vested right unless the said right is taken awayby the legislature by an express provision in the statute by necessaryintention”.

C.14 Videocon International (2015- Supreme Court 2judges)

36. two judge Bench of this Court in Videocon InternationalLimited v. Securities and Exchange Board of India[39] dealt with theAppellate provisions contained in the Security and Exchange Board ofIndia Act 1992. Following the insertion of Chapter 6B with effect from25 January 1995, the remedy of an appeal was provided to the SecuritiesAppellate Tribunal under Section 15 T to person aggrieved by an orderof the Board or by an Adjudicating Officer. Section 15 Z provided anappeal to the High Court against an order of the SAT on any question offact or law. Section 15 Z was amended with retrospective effect from

29 October 2002 to provide an appeal against the orders of theSAT to the Supreme Court on any question of law. The forum of thesecond appellate remedy was changed from the High Court to theSupreme Court. Appeals against the order of the SAT which had beenpassed before 29 October 2002 (the date of amendment) were filedbefore the High Court which held that such appeals which have beeninstituted before the enforcement of amended Section 15 Z would not beaffected by the amendment and that it would continue to have jurisdictionto hear and dispose of the appeals. The Amending Act had repeal andsavings provision in Section 32 which was in the following terms:

“32. Repeal and saving.—(1) The Securities and Exchange Boardof India (Amendment) Ordinance, 2002 (Ord. 6 of 2002), is herebyrepealed.

(2) Notwithstanding the repeal of the Securities and ExchangeBoard of India (Amendment) Ordinance, 2002 (Ord. 6 of 2002),anything done or any action taken under the principal Act asamended by the said Ordinance, shall be deemed to have beendone or taken under the principal Act, as amended by thisAct.”

37. The judgment of the High Court was assailed, citing thedecisions in Hitendra Vishnu Thakur(supra) and MariaCristina(supra) amongst others, and it was urged that the amendmentby which the appellate forum was changed from the High Court to theSupreme Court must be treated as merely procedural. On the otherhand, the Respondent relied on the decision in Dhadi Sahu(supra) and

39 “Videocon International”; (2015) 4 SCC 33

AAmbalal Sarabhai(supra). Justice JS Khehar (as the learned ChiefJustice then was) examined whether the amendment “envisaged merechange 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 anyBquestion of fact or law arising out of such order” the amendment hadcurtailed and restricted the right of appeal since the appeal to this Courtwould now lie “on any question of law arising out of such order”.Consequently, this Court noted:

“41…. Accordingly, by the amendment, the earlier appellateCpackage stands reduced, because under the amended Section15-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 thecontention advanced at the hands of the learned counsel for theappellant, that the amendment to Section 15-Z of the SEBI Act,envisages only an amendment of the forum, where the secondDappeal would lie. In our considered view, the amendment to Section15-Z of the SEBI Act, having reduced the appellate package,adversely affected the vested appellate right of the litigantconcerned….”E40 “38. First and foremost, we shall determine the veracity of the contention advancedat the hands of the learned counsel for the appellant, that the remedy of second appealprovided for in the unamended Section 15-Z of the SEBI Act remained unaffected bythe amendment of the said provision; and on the basis of the above assumption, thelearned counsel’s submission, that the present controversy relates to an amendmentwhich envisaged mere change of forum. Insofar as the instant aspect of the matter isFconcerned, it would be pertinent to mention, that right of appeal can be availed ofonly when it is expressly conferred. When such right is conferred, its parameters arealso laid down. right of appeal may be absolute i.e. without any limitations. Or, itmay be limited right. The above position is understandable, from perusal of theunamended and amended Section 15-Z of the SEBI Act. Under the unamended Section15-Z, the appellate remedy to the High Court, against an order passed by the SecuritiesAppellate Tribunal, was circumscribed by the words “… on any question of fact or lawGarising out of such order”. The amended Section 15-Z, while altering the appellateforum from the High Court to the Supreme Court, curtailed and restricted the scope ofthe appeal, against an order passed by the Securities Appellate Tribunal, by expressingthat the remedy could be availed of “… on any question of law arising out of suchorder”. 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 providedunder the SEBI Act.”H

While noting that this position would be subject to an amendmentproviding to the contrary, this Court held that Section 32 which providedthe repeal and savings clause did not indicate contrary intent. Hence,the appellate remedy which was available prior to the amendment ofSection 15 Z would, in the view of this Court continue to be availabledespite the amendment. Moreover, this Court held that neither the dateof filing the appeal nor its hearing was of any relevance since the rightto an appellate remedy becomes vested when the lis is initiated. Thecontention of the appellant that in the absence of savings clause thepending proceedings could not be deemed to have been saved wasrejected by placing reliance on the decision in Ambalal Sarabhai(supra):

“44…. In the judgment rendered by this Court in AmbalalSarabhai Enterprises Ltd. case [Ambalal Sarabhai EnterprisesLtd. v. Amrit Lal and Co., (2001) 8 SCC 397] , it was held, thatthe general principle was, that law which brought about changein the forum, would not affect pending actions, unless the intentionto the contrary was clearly shown. Since the amending provisionherein does not so envisage, it has to be concluded, that the pendingappeals (before the amendment of Section 15-Z) would not beaffected in any manner…

Furthermore, the instant contention is wholly unacceptable in viewof the mandate contained in Sections 6(c) and (e) of the GeneralClauses Act, 1897. While interpreting the aforesaid provisions thisCourt has held, that the amendment of statute, which is notretrospective in operation, does not affect pending proceedings,except where the amending provision expressly or by necessaryintendment provides otherwise. Pending proceedings are tocontinue as if the unamended provision is still in force. This Courthas clearly concluded, that when lis commences, all rights andobligations of the parties get crystallised on that date, and themandate of Section 6 of the General Clauses Act, simply ensures,that pending proceedings under the unamended provision remainunaffected….”

As regards the decisions inter alia in Hitendra VishnuThakur(supra) and Maria Cristina(supra), this Court held that theprinciple that the forum is procedural matter and that an amendmentwhich alters the forum would apply retrospectively cannot be doubted

Abut“the same is not an absolute rule”. On this aspect, the Bench reliedupon the decision in Dhadi Sahu(supra) in support of the principle thatan amendment of forum would not necessarily be an issue of procedure.

“45. Having concluded in the manner expressed in the foregoingparagraphs, it is not necessary for us to examine the mainBcontention, advanced at the hands of the learned counsel for theappellant, namely, that the amendment to Section 15-Z of the SEBIAct, contemplates mere change of forum of the second appellateremedy. Despite the aforesaid, we consider it just and appropriate,in the facts and circumstances of the present case, to delve onthe above subject as well. In dealing with the submission advancedCat the hands of the learned counsel for the appellant, on the subjectof forum, we will fictionally presume, that the amendment toSection 15-Z by the Securities and Exchange Board of India(Amendment) Act, 2002 had no effect on the second appellateremedy made available to the parties, and further that, the aboveDamendment merely alters the forum of the second appeal, fromthe High Court (under the unamended provision), to the SupremeCourt (consequent upon the amendment). On the aboveassumption, the learned counsel for the appellant had placedreliance on the decisions rendered by this Court in MariaCristina De Souza Sodder [Maria Cristina De Souza SodderEv. Amria Zurana Pereira Pinto, (1979) 1 SCC 92] , HitendraVishnu Thakur [Hitendra Vishnu Thakur v. State ofMaharashtra, (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)F458] cases to contend, that the law relating to forum beingprocedural in nature, an amendment which altered theforum, would apply retrospectively. Whilst the correctnessof the aforesaid contention cannot be doubted, it is essentialto clarify, that the same is not an absolute rule. In this behalf,reference may be made to the judgments relied upon byGthe learned counsel for the respondent, and moreimportantly to the judgment rendered in Dhadi Sahu case[CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257] , wherein ithas been explained, that an amendment of forum would notnecessarily be an issue of procedure. It was concluded inthe above judgment, that where the question is of change

of forum, it ceased to be question of procedure, andbecomes substantive and vested, if proceedings standinitiated before the earlier prescribed forum (prior to theamendment having taken effect). This Court clearlydeclared in the above judgment, that if the appellateremedy had been availed of (before the forum expressedin the unamended provision) before the amendment, thesame would constitute vested right. However, if the samehas not been availed of, and the forum of the appellateremedy is altered by an amendment, the change in theforum, would constitute procedural amendment, ascontended by the learned counsel for the appellant.Consequently even in the facts and circumstances of the presentcase, all such appeals as had been filed by the Board, prior to29-10-2002, would have to be accepted as vested, and must beadjudicated accordingly.” (emphasis supplied)

The conclusion of this Court was held to be in accordance withthe mandate of Section 6 of the General Clauses Act. The appeals whichhad been filed by SEBI before the High Court were therefore held to bemaintainable.

C.15 SEBI v. Classic Credit (2018- Supreme Court 2judges)

39. We have already noticed the earlier decision of Justice J SKhehar in Videocon International (supra). Subsequent to the aforesaiddecision, in Securities and Exchange of Board of India v. ClassicCredit Limited[41], two judge bench of this Court, speaking throughJustice Khehar, considered claim for transfer of pending proceedingsunder the SEBI Act 1992. At the time when the complaints were filedunder Section 26(2), the accused was required to be tried by aMetropolitan Magistrate (or JMFC). Section 24(1) as it existed priorto the amendment read as follows:

“24. Offences.—(1) Without prejudice to any award of penaltyby the adjudicating officer under this Act, if any person contravenesor attempts to contravene or abets the contravention of theprovisions of this Act or of any rules or regulations made thereunder,he shall be punishable with imprisonment for term which mayextend to one year, or with fine, or with both.

148SUPREME COURT REPORTS

A(2) If any person fails to pay the penalty imposed by the adjudicatingofficer or fails to comply with any of his directions or orders, heshall be punishable with imprisonment for term which shall notbe less than one month but which may extend to three years orwith fine which shall not be less than two thousand rupees butwhich may extend to ten thousand rupees or with both.”B

40. After the amendment Section 24(1) envisaged punishmentfor term of imprisonment which may extend to ten years or with finewhich may extend to rupees 25 crores. As result of the amendment ofSection 26(2) it came to be stipulated that no court inferior to that of aCourt of Sessions shall try any offence punishable under the Act. AfterCthe 2002 amendment all pending cases before the Metropolitan Magistrateor JMFC were committed to the Court of Sessions on the assumptionthat the amending Act retrospectively altered the forum for trial. Whenthe issue of jurisdiction was being considered by the Bombay High Court,SEBI sought to rely upon judgment of the Delhi High Court which hadDconcluded that the amendment to Section 26 brought about only changein forum and was only procedural. The Bombay High Court took viewcontrary to the judgment of the Delhi High Court. During the pendency ofthe appeals before this Court, the SEBI Act was amended again by theomission of 26(2) and the insertion of Section 26 to from 18 July 2013.SEBI argued that since the impact of 2002 amendment had again beenEaltered, all the pending cases would be required to be tried by SpecialCourt in terms of the 2014 Amendment. Section 26-B provided as follows:

“26-B. Offences triable by Special Courts.—Notwithstandinganything contained in the Code of Criminal Procedure, 1973 (2 of1974), all offences under this Act committed prior to the date ofFcommencement of the Securities Laws (Amendment) Act, 2014or on or after the date of such commencement, shall be takencognizance of and tried by the Special Court established for thearea in which the offence is committed or where there are moreSpecial Courts than one for such area, by such one of them asGmay be specified in this behalf by the High Court concerned.”

41. SEBI argued before this Court that change of the forum fortrial was matter of mere procedure and would therefore be retrospective,there being no express or implied intent either in the 2002 and 2014Amendments that the amendments were intended to be of prospective

effect. Justice JS Khehar speaking for the two judge Bench of this Courtadverted 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 thisCourt in large number of judgments including New IndiaInsurance 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 KumarSoni v. State of M.P., (2013) 14 SCC 696 : (2014) 4 SCC (Cri)340] , is clear and unambiguous, namely, that proceduralamendments are presumed to be retrospective in nature, unlessthe 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 beretrospective in nature unless the amending statute providesotherwise. This determination emerges from the decision of thisCourt in Hitendra Vishnu Thakur v. State of Maharashtra [HitendraVishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994SCC (Cri) 1087]; Ranbir Yadav v. State of Bihar [Ranbir Yadavv. State of Bihar, (1995) 4 SCC 392 : 1995 SCC (Cri) 728] andKamlesh Kumar v. State of Jharkhand [Kamlesh Kumar v. Stateof Jharkhand, (2013) 15 SCC 460 : (2014) 6 SCC (Cri) 489] , aswell as, number of further judgments noted above.”

42. The above observations indicate the clear view of this Court

that:

(i)In the absence of contrary intent express or implied,procedural amendments are presumed to be retrospective;

(ii)A change in the forum of trial is procedural matter; and

(iii)Since change of forum is procedural, statute which bringsabout the change is presumed to be retrospective in theabsence of contrary intent.

43. Hence, the Court went on to observe that it had “also nodoubt ...that change of “forum” being procedural the amendment of the“forum” would operate retrospectively, irrespective of whether the

[2021] 15 S.C.R.

Aoffence allegedly committed by the accused was committed prior to theamendment”[42].

44. However, the Bench was conscious of the contrary view inDhadi Sahu(supra) and the conflicting interpretations in the decisionsin Manujendra Dutt(supra), Mohd. Idris(supra), AmbalalBSarabhai(supra), Ramesh Kumar Soni(supra) and VideoconInternational(supra) (which the Bench adverted to in paragraphs 51to 53 of its decision). Dealing with this line of authority, Chief Justice J SKhehar observed:

“54. From perusal of the conclusions drawn in the aboveCjudgments, we are inclined to accept the contention that changeof “forum” could be substantive or procedural. It may well beprocedural when the remedy was yet to be availed of but wherethe remedy had already been availed of (under an existing statutoryprovision), the right may be treated as having crystallized into avested substantive right.”D

The view which was formulated by the Court was that where aremedy has been availed of prior to the amendment then unless theamending 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 haveEjurisdiction:

“55. In the latter situation referred to (and debated) in the precedingparagraph, where the remedy had been availed of prior to theamendment, even according to the learned counsel for the privateparties, unless the amending provision by express words, or byFnecessary implication, mandates the transfer of proceedings tothe “forum” introduced by the amendment the “forum” postulatedby the unamended provision, would continue to have the jurisdictionto adjudicate upon pending matters (matters filed beforeamendment). In view of the above, we are of the consideredGview, that no vested right can be claimed with reference to “forum”,where the court concerned, had not taken cognizance andcommenced trial proceedings, in consonance with the unamendedprovision.”

H42 At para 50, page 68

Where, however, proceedings had already commenced before theamendment, change in the forum of the trial would not affect pendingactions unless contrary intent is shown. This Court then scrutinizedwhether the amendments which were made in 2002 and 2014 expresseda contrary intent. The Court held that Section 26, as amended in 2002,left no room for doubt that the erstwhile forum ceases to haveadjudicating authority and the newly created forum - the Court ofSessions would deal with all pending matters as well. As result, the2002 Amendment “diverted jurisdiction” from the MetropolitanMagistrates and JMFCs to try offences under the SEBI Act after theamendment became operational. Similarly, the 2014 Amendment groupedall offences together by providing that they would be tried by SpecialCourt whether committed prior to or after the amendment; no segregationbeing permissible. By the 2014 amendment, the function of takingcognizance had been vested with the Special Courts. This Court heldthat all pending matters where cognizance had been taken andproceedings had commenced before the Court of Sessions would not beaffected. In conclusion, this Court observed:

“79. In view of the consideration recorded hereinabove, we areof the view, that the “forum” for trial earlier vested in the Court ofMetropolitan Magistrate (or Judicial Magistrate of the First Class)was retrospectively amended, inasmuch as, the “forum” of trialafter the 2002 Amendment Act was retrospectively changed tothe Court of Session. In this view of the matter, the trials even inrespect of offences allegedly committed before 29-10-2002 (thedate with effect from which the 2002 Amendment Act becameoperational), whether in respect whereof trial had or had not beeninitiated, would stand jurisdictionally vested in Court of Session.And likewise, trials of offences under the SEBI Act, consequentupon the 2014 Amendment Act (which became operational, witheffect from 18-7-2013) would stand jurisdictionally transferredfor trial to Special Court, irrespective of whether the offenceunder the SEBI Act was committed before 29-10-2002 and/orbefore 18- 7-2013 (the date with effect from which the 2014Amendment Act became operational), and irrespective of the factwhether trial had or had not been initiated.”

Accordingly, the view of the Delhi High Court in transferringpending proceedings was affirmed while that taken by the Bombay HighCourt was set aside.

AC.16 Swapna Mohanty (2018- Supreme Court 2 judges)

45. two judge Bench of this Court in Swapna Mohanty v.State of Odisha[43] dealt with the provisions of Section 24 of the OrissaEducation Act 1969. The State Education Tribunal obtained jurisdictionto decide appeals in respect of colleges only from the date on whichBthey were admitted to grant-in-aid. The appeal was filed in August 2002before the College was admitted to grant-in-aid in February 2004 andthe issue examined was whether the Director of Higher Education hadcompetence to hear the appeal after the college was admitted to grant-in-aid. Justice L Nageswara Rao speaking for the two judge Bench heldthat the Director continued to have jurisdiction to decide the appeal whichCwas 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 achange-over of all proceedings to the Tribunal”.[44] In arriving at thisconclusion, the two judge Bench relied on the judgment in Dhadi Sahu(supra).D

C.17 Om Prakash Agarwal (2018- Supreme Court 2 judges)

46. In Om Prakash Agarwal v. Vishan Dayal Rajpoot[45], twojudge Bench of this Court considered the provisions of the UP CivilLaws (Amendment) Act 2015 under which, with effect from 7 December2015, Sections 9 and 21 of the Bengal, Agra and Assam Civil Courts ActE1887 and Section 15 of the Provincial Small Cause Courts Act 1887were amended. By the amendment, the limit of the pecuniary jurisdictionof the Small Cause Courts was increased from rupees twenty-fivethousand to rupees one lakh. Although, the pecuniary jurisdiction wasenhanced to rupees one lakh, the suit which was pending before theFAdditional District Judge continued to proceed without objection by theparties. decree for eviction and for arrears of rent was passed. In therevision before the High Court, one of the grounds raised was that inview of the UP Civil Laws (Amendment) Act 2015, the Court of theAdditional District Judge ceased to have jurisdiction to try suit betweena lessor and lessee of value of upto one lakh from 1 December 2015Gand the assumption of jurisdiction was invalid. Accepting the submission,the High Court allowed the revision and remanded the suit for freshdecision before the Small Cause Courts. The suit which was instituted

43 (2018) 17 SCC 62144 Para 9H45 (2019) 14 SCC 526

under Section 15(2) by the lessor for eviction of the lessee was filedinitially before the Small Cause Court, Firozabad since the valuation wasRs. 21,175. Subsequently, following the amendment, the valuation wasenhanced to Rs 27,775 and the suit was transferred to the Court of theDistrict Judge. On these facts, the main issue was whether after 7December 2015, the Court of the Additional District Judge where thesuit was pending could still have pecuniary jurisdiction to decide the suitor whether it should be transferred back to the Small Causes Court. ByUP Act 37 of 1972, an amendment had been made in Section 25 of theBengal, Agra and Assam Civil Courts Act 1887 so as to empower theState government to confer upon any District Judge or Additional DistrictJudge the power of Judge of the Small Causes Court for the trial ofsuits irrespective of value by lessor for the eviction of lessee.

47. Justice Ashok Bhushan speaking for the two judge Benchobserved that the expression “irrespective of their value” used in Section25 as amended was with the clear intent that irrespective of value, casesfiled by the lessee for the eviction of the lessee should be treated assmall causes cases. By subsequent amendment, the Small Causes Courtpresided over by the Civil Judge, became empowered to decide cases upto value of twenty-five thousand rupees while those above would betaken cognizance of by the Additional District Judge. The Court held:“54…When small cause suit not exceeding value of Rs 1 lakh iscognizable by the Court of Small Causes, obviously, no other courtcan take cognizance. The Additional District Judge to whom smallcauses suit in question was transferred since its valuation wasmore than of Rs 25,000 was not competent to take cognizance ofthe suit after the U.P. Civil Laws (Amendment) Act, 2015 w.e.f.7-12-2015, when the suit in question became cognizable by theSmall 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 few High Court decisions which havecome to varying conclusions due to the ambiguity introduced in the positionof law by Dhadi Sahu (supra) vis-à-vis Maria Cristina(supra) andNew India Assurance (supra) by creating an exception to the rulethat change of forum is purely procedural matter. In Delhi HighCourt Bar Association v. Court of Delhi[46], the original jurisdiction of

46 ILR (1994) 1 Del 271

ABC

Athe High Court was increased from Rs. 1 lakh to Rs. 5 lakhs. Theappellants in that case sought to question the transfer of proceedingsfrom the High Court to the lower court. The High Court noted that theAmending Act’s object was to reduce the burden on the High Court andspeedy disposal of cases. The High Court held that change of forum is aprocedural matter and not vested right. Division Bench of the HighBCourt speaking through Justice DP Wadhwa noted the ambiguity createdby Dhadi Sahu (supra) and applied the principle in New IndiaAssurance(supra) and Maria Cristina(supra) to direct transfer ofpending proceedings as change of forum owing to amendments to thepecuniary jurisdiction is change in procedural law that is usuallyCretrospective:

“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 expressthe opinion that change of forum is change of procedural lawand not substantive law. In Maria Cristina De Souza Sodder v.DAmria Zurana Percira Pinto, (1979) 1 SCC 92 (10), the court heldthat right of appeal though was substantive right and got vestedin the litigant no sooner the lis was commenced in the court of thefirst instance and such right would not be affected by any repealof an enactment conferring such right unless the repealing Acteither expressly or by necessary implication took away such right.EThe court also said that the forum where such appeal couldbe lodged was procedural matter and therefore the appealthe right to which had arisen under the repealing Act wouldhave to be lodged in forum provided for by the repealingAct. In Mithilesh Kumari v. Prem Behari Khare, (1989) 2 SCCF95 : AIR 1989 S.C. 1247 (11), the Supreme Court said that evenvested right could be taken away and said that where remedy isbarred the right became unenforceable. The decision of theSupreme Court in Commissioner of Income Tax, Orissa v.Shri Dhadi Sahu, JT 1992 (6) S.C. 714, would appear to besomewhat in conflict with its earlier decision but thisGjudgment though holds that forum of appeal is vested rightto be followed before particular forum and that rightbecomes vested when the proceedings are initiated but thatvested right would not continue if the legislature by expresswords or by necessary implications so indicates. The FullHBench of the Punjab High Court in Gordhan Das Baldev Das v.

The Governor General in Council, AIR 1952 Punjab 103 (FB)(12), had also said that such vested right of appeal to particularforum could be taken away by later statute if the intention of thelegislature 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 PanmalDuggad Jain[47], controversy arose before the Bombay High Courtwhere an amendment was made to Section 26 of the Bombay CivilCourt Act, 1869, which increased the pecuniary jurisdiction of the DistrictCourt from Rs. 50,000 to Rs. 2 lakhs. Consequently, the Registrar ofthe Bombay High Court transferred an appeal which was pending whenthe amendment came into force to the District Court. The applicantsapplied to the District Court for re-transferring the appeal to the HighCourt contending that the appeals filed and entertained by the HighCourt prior to the amendment coming into force on 13 January 1999were not liable to be transferred to the District Court. Their applicationwas rejected and the applicants filed an application of re-transfer ofthe appeal before the High Court. The High Court placed reliance onSection 7(b) of the Bombay General Clauses Act to hold that theamendment would not affect the proceedings initiated before the HighCourt. The High Court held that unless clear legislative intent can bediscerned, the absence of savings clause would not warrant transferof cases to new forum. Although, the High Court noted that the rightto forum is in the realm of procedural law and would not entitle alitigant who has instituted suit in trial court before the amending actcame into force to insist that their appeal may also be heard and decidedby the forum prescribed under the unamended provisions. Justice R.C.Chavan observed:

“19…In view of the provisions of section 7(b) of the BombayGeneral Clauses Act the repeal of part of section 26 of BombayCivil Courts Act, relating to the reference to the sum of Rs. FiftyThousand, would not affect the proceedings which had alreadycommenced or had been initiated in the High Court. We may,however, add that right to forum being in the realm of adjectivesor procedural law would not entitle the suitor who had filed suit in

CDEFG

Athe trial Court before Amending Act came into force to insist thateven his appeal may be heard and decided by the forum prescribedunder the unamended provisions. This question has already beenconcluded by the Full Bench in Vilas Vasant Mahajan v. CentralBank of India. However, unless clear legislature intent can bediscerned to indicate that even pending matters were required toBbe transferred to the new forum, mere absence of saving clauselike 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)

C50. In Vallabhaneni Lakshmana Swamy v. Valluru Basavaiah[48]was case where the A.P. Civil Court (Amendment) Act 1989 raisedthe pecuniary jurisdiction to entertain the appeal at the District Courtfrom Rs. 30,000 to Rs. 1 lakh. By further amendment the pecuniaryjurisdiction was raised to Rs. 3 lakhs. The High Court held that theamendment would be applicable prospectively. The High Court furtherDheld that in case of suits which were filed earlier to the amendmentand were pending as on the date the amendment came in force, theappeal in relation to those suits would be filed before forum createdunder the amended Act depending on the pecuniary limits. If the appealhas been presented before the date of the amended Act coming intoEforce and the appeals were pending as on the said date, the amendmentwould not have any effect on such pending appeals. The judgement ofthe High Court was premised on the principle that when the right toappeal and forum are inextricable, they both become substantive rightsand travel together. The Special Bench of the High Court observed:F“96. …. if the forum is changed and the right of the appeal in theforum are so inextricable that they cannot be separated by clearcut measure. It has to be that the right of appeal as well as theforum are both substantive rights and therefore, they only applyto the cases in future and not applied to the pending cases.”

GC.21 Gobardhan Lal Soneja (1991- Patna HC- FB)51. In Gobardhan Lal Soneja v. Binod Kumar Sinha[49], thePatna High Court relied on the decision in New India Assurance to holdthat the transfer of pending proceedings from the Sub-Judge to the Munsif

48 (2004) 5 ALD 807H49 (1991) 2 PLJR 783

after pecuniary jurisdiction is altered by an amendment, is valid exerciseof power and there is no vested right to forum. The Full Bench of theHigh Court observed:

“11…The Supreme Court in the New India Assurance Co. Ltd.(supra) considered the effect of section 110A of the Motor VehiclesAct, 1939 by which Claims Tribunals were constituted for filingclaims arising out of motor vehicle accidents: The question waswhether with regard to the claims for compensation arising out ofan accident which took place after introduction of section 110A, asuit will lie or claim therefor shall have to be filed before theClaims Tribunal. It was held by the Supreme Court that by section110A there was no change in law, but merely change of forum i.e.the change of adjectival or procedural law and not substantivelaw. It was observed. “It is well established proposition that suchchange of law operates retrospectively and the person has to goto new forum even if his cause of action or right of action accruedprior to the change of forum. He will have vested right of action,but not vested right of forum”. It may be noticed that the languageof section 19 is not such as to interpret it that the Munsif andAdditional Munsif were given jurisdiction to hear suits of highervalue which were filed after the amendment of that section. Forthis reason also, it must be held that the application of section 19will be retrospective in the sense that it will apply to the pendingsuits. This proposition of law has been laid down in the New IndiaAssurance Co. Ltd., (supra).”

C.22 Y.B. Ramesh (2010- Karnataka HC- SJ)

52. The Karnataka High Court in Y.B. Ramesh v. Varalakshmi[50],held that subsequent amendment to pecuniary jurisdiction is said tohave divested the concerned forum of its authority to hear the matter.The Single Judge of the High Court relied on the decision in Sudhir GAngur(supra) and observed:

“9. The main argument addressed by the learned Counsel for thepetitioner is that as on the date of filing of the suit, the Court hasno jurisdiction and hence, the plaint has to be rejected under Order7, Rule 11(d) of CPC. The issue regarding law to be applied indetermining the jurisdiction of the Court, i.e., the law as existing

on the date of institution of the suit or on the date on which, thesuit came up for hearing has to be applied. The Hon’ble SupremeCourt in judgment cited supra (Sudhir Angur), held as under:

“In our view Mr. G.L. Sanghi is also right in submitting that it isthe law on the date of trial of the suit which is to be applied. InBsupport of this submission, Mr. Sanghi relied upon the judgment inShiv Bhagwan Mod Ram Saraoji v. Onkarmal Ishar Dass, AIR1952 Bom. 365, wherein it has been held that no party has avested right to particular proceeding or to particular forum. Ithas been held that it is well-settled that all procedural laws areretrospective unless the Legislature expressly states to the contrary.CIt has been held that the procedural laws in force must be appliedat the date when the suit or proceeding comes on for trial ordisposal. It has been held that Court is bound to take notice ofthe change in the law and is bound to administer the law as it waswhen the suit came up for hearing. It has been held that if CourtDhas jurisdiction to try the suit, when it comes on for disposal, itthen cannot refuse to assume jurisdiction by reason of the factthat it had no jurisdiction to entertain it at the date when it wasinstituted. We are in complete agreement with these observations.As stated above, the Mysore Act now stands repelled. It couldnot be denied that now the Court has jurisdiction to entertain thisEsuit”.

10. In view of the pronouncement of law by the Hon’ble SupremeCourt, the petitioner is not entitled for any relief. Further, even ifit is held that the Civil Judge (Junior Division) has no pecuniaryjurisdiction to entertain the suit, at the most, the Court can returnFthe 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 suitand hence, I.A. No. 1 filed by the petitioner cannot beentertained.”GC.23 Conclusion on the position of law

53. In considering the myriad precedents that have interpretedthe impact of change in forum on pending proceedings andretrospectivity- clear position of law has emerged: change in forumlies in the realm of procedure. Accordingly, in compliance with the tenetsH

of statutory interpretation applicable to procedural law, amendments onmatters of procedure are retrospective, unless contrary intentionemerges from the statute. This position emerges from the decisions inNew India Assurance(supra), Maria Cristina(supra), HitendraKumar Thakur(supra), Ramesh Kumar Soni(supra) and Sudhir GAngur(supra). More recently, this position has been noted in threejudge Bench decision of this Court in Manish Kumar v. Union ofIndia[51]. However, there was deviation by two judge bench decisionof this Court in Dhadi Sahu(supra), which overlooked the decision of alarger three judge bench in New India Assurance(supra) and of co-ordinate two judge bench in Maria Cristina(supra). The decision inDhadi Sahu(supra) propounded position that “no litigant has anyvested right in the matter of procedural law but where the questionis of change of forum it ceases to be question of procedure only.The forum of appeal or proceedings is vested right as opposed topure procedure to be followed before particular forum. The rightbecomes 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 pendingproceedings in Mohd. Idris(supra) and Manujendra Dutt(supra) wasa saving of vested rights of the litigants that were being impacted by therepealing acts therein, and not because right to forum is accrued onceproceedings have been initiated. Thereafter, line of decisions followedDhadi Sahu(supra), to hold that litigant has crystallized right to aforum once proceedings have been initiated. litigant’s vested right(including the right to an appeal) prior to the amendment or repeal areundoubtedly saved, in addition to substantive rights envisaged underSection 6 of the General Clauses Act. This protection does not extend topure matters of procedure. Repeals or amendments that effect changesin forum would ordinarily affect pending proceedings, unless contraryintention appears from the repealing or amending statute.

54. It is relevant to note in this context that the decision in AmbalalSarabhai(supra) saved proceedings in relation to benefit whichalthough not vested, accrued to the landlord to evict the tenant by virtueof proviso to Section which accorded protection to the tenant fromejectment. This Court reasoned that since the right of the landlord flowsfrom Section which protects the tenant, it cannot be enlarged into

51 Writ Petition (C) No. 26 of 2020, decided on 19 January 2021 (Supreme Court ofIndia)

Avested right. However, Ambalal Sarabhai(supra) did not enunciate anabsolute proposition that the right to institute proceedings at particularforum is an accrued right, let alone vested right. The dictum that achange of forum is procedural matter is not altered by the decision ofthis Court in Ambalal Sarabhai(supra) which sought to differentiatebetween vested rights and accrued rights, the latter being protected underBSection 6(c) of the General Clauses Act, the proceedings in relation towhich are protected under Section 6(e).

55. Now, it is in this backdrop, that we have to analyze the impactof the Act of 2019 upon pending cases which were filed before the foraconstituted under the Act of 1986.C

Legislative Scheme of the jurisdictional provisions

56. Some of the salient aspects of the Act of 2019 insofar asthey pertain to the jurisdictional provisions need to be visited. Thepecuniary limits of the original jurisdiction of the District CommissionDunder Section 34(1) is to entertain complaints where the value of thegoods or services paid as consideration does not exceed crore ofrupees.

57. An appeal lies to the SCDRC from an order of the DistrictCommission under Section 41. The second proviso to Section 41 stipulatesEthat an appeal shall not be entertained of person who is required to payany amount under the order of the District Commission, unless theappellant has deposited 50 per cent of the decretal amount.

58. The SCDRC has, under Section 47(1)(a)(i), original jurisdictionto entertain complaints subject to pecuniary limit of not less than oneFcrore rupees and not exceeding rupees ten crores. The SCDRC has anappellate jurisdiction under Section 47(1)(a)(iii), revisional jurisdictionunder Section 47(1)(b) and review jurisdiction under Section 50.

59. Section 51 provides an appeal to the NCDRC from an orderpassed by the SCDRC in the exercise of its original jurisdiction to hear acomplaint [referable to sub-clauses (i) and (ii) of clause (a) of SectionG47 (1)]. As in the manner of an appeal before the SCDRC against anorder of the District Commission, the second proviso to Section 51provides that an appeal shall not be entertained at the behest of personwho is required to pay any amount unless 50 per cent of the amount hasbeen deposited. Under sub-Section (2) of Section 51, an appeal before

the NCDRC against an order of the SCDRC lies on substantial questionof 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 paidas consideration exceeds rupees ten crores and complaints against unfaircontracts of similar value. The NCDRC is vested with an appellatejurisdiction under Section 51, revisional jurisdiction under Section58(1)(b) and review jurisdiction under Section 60. An appeal againstan order of the NCDRC passed in the exercise of its original jurisdictionlies to this Court under Section 67. The second proviso of Section 67requires pre-deposit of 50 per cent of the amount ordered by theNCDRC.

61. Under the earlier Act of 1986, the pecuniary limit of thejurisdiction of (i) the District Commission was up to rupees 20 lacs underSection 11(1); (ii) the SCDRC between rupees twenty lacs and rupeesone crores under Section 17(1); and (iii) the NCDRC above rupees onecrore under Section 21. The requirement of pre-deposit for filing anappeal before the SCDRC against an order of the District Commissionwas 50 per cent of the amount or twenty-five thousand rupees, whicheveris less (Section 15). similar pre deposit was required for appeals to theNCDRC against orders of the SCDRC (second proviso to Section 19).An appeal before the NCDRC against an order of the SCDRC (Section19) was not circumscribed by the requirement that it must raise asubstantial question of law. In Section 51(2) of the Act of 2019, an appealto the NCDRC lies on substantial question of law.

Legislative intendment underlying Section 107 of the Actof 2019

62. Section 107(1) of the Act of 2019 repeals the Act of 1986. InState of Rajasthan v. Mangilal Pindwal[52], this Court accepted theprinciple that the effect of repeal, in the absence of savings clause ora general savings statute, is that “a statute is obliterated” subject to theexception that it exists in respect of transactions past and closed. Section107 (2) has saved “the previous operation” of any repealed enactmentor “anything duly done or suffered thereunder to the extent that it is notinconsistent with the provisions of the new legislation”. Finally, Section107(3) indicates that the mention of particular matters in sub-Section (2)

Awill not prejudice or affect the general application of Section 6 of theGeneral Clauses Act.

63. Section 6 of the General Clauses Act provides governingprinciples with regard to the impact of the repeal of central statute orregulation. These governing principles are to apply, “unless differentBintention appears”. Clause (c) of Section 6 inter alia stipulates that arepeal would not affect “any right, privilege, obligation or liabilityacquired, accrued or incurred under any enactment so repealed”. Theright to pursue validly instituted consumer complaint under the Actof 1986 is right which has accrued under the law which was repealed.Clause (e) of Section 6 stipulates that the repeal will not affect, interCalia, any

“legal proceeding or remedy” in respect of any such right…asaforesaid”. Any such legal proceedings may be continued as if therepealing legislation had not been passed. Clause (c) of Section 6 hasthe effect of preserving the right which has accrued. Clause (e) ensuresDthat legal proceeding which has been initiated to protect or enforce“such right” will not be affected and that it can be continued as if therepealing legislation has not been enacted. The expression such rightin clause (e) evidently means the right which has been adverted to inclause (c). The plain consequence of clause (c) and clause (e), whenEread together is two- fold: first, the right which has accrued on the dateof the institution of the consumer complaint under the Act of 1986 (therepealing law) is preserved; and second, the enforcement of the rightthrough the instrument of legal proceeding or remedy will not beaffected by the repeal.F64. Having stated the above position, we need to harmonize it

F64. Having stated the above position, we need to harmonize itwith the principle that the right to forum is not an accrued right, asdiscussed in Part of this judgement. Simply put, while Section 6(e) ofthe General Clauses Act protects the pending legal proceedings for theenforcement of an accrued right from the effect of repeal, this doesnot mean that the legal proceedings at particular forum are savedGfrom the effects from the repeal. The question whether the pendinglegal proceedings are required to be transferred to the newly createdforum by virtue of the repeal would still persist. As discussed, thisCourt in New India Assurance(supra) and Maria Christina(supra)has held that forum is matter pertaining to procedural law and thereforeHthe litigant has to pursue the legal proceedings at the forum created by

the repealing act, unless contraryintention appears. This principlewould also apply to pending proceedings, as observed in RameshKumar Soni(supra), Hitendra Kumar Thakur(supra) and SudhirG Angur(supra). In this backdrop, what is relevant to ascertain iswhether contrary intent to the general rule of retrospectivity hasbeen expressed under the Act of 2019 to continue the proceedings atthe older forum.

65. Now, in considering the expression of intent in the repealingenactment in the present case, it is apparent that there is no expresslanguage indicating that all pending cases would stand transferred to thefora created by the Act of 2019 by applying its newly prescribed pecuniarylimits. In deducing whether there is contrary intent, the legislativescheme and procedural history may provide relevant insight into theintention of the legislature.

66. The Act of 2019, as indicated by its long title, is enacted toprovide “for protection of the interests of consumers”. The Statementof Objects and Reasons took note of the tardy disposal of cases underthe erstwhile legislation. Thus, the necessity of inducing speed in disposalwas to protect the rights and interests of consumers. The Act of 2019has taken note of the evolution of consumer markets by the proliferationof products and services in light of global supply chains, e- commerceand international trade. New markets have provided wider range ofaccess to consumers. But at the same time, consumers are vulnerableto exploitation through unfair and unethical business practices. The Acthas sought to address “the myriad and constantly emerging vulnerabilitiesof the consumers”. The recurring theme in the new legislation is theprotection of consumers which is sought to be strengthened by proceduralinterventions such as strengthening class actions and introducing mediationas an alternate forum of dispute resolution.

67. In this backdrop, something specific in terms of statutorylanguage - either express words or words indicative of necessaryintendment would have been required for mandating the transfer ofpending cases. One can imagine the serious hardship that would becaused to the consumers, if cases which have been already institutedbefore the NCDRC were required to be transferred to the SCDRCs asa result of the alteration of pecuniary limits by the Act of 2019. consumerwho has engaged legal counsel at the headquarters of the NCDRC wouldhave to undertake fresh round of legal representation before the

ASCDRC incurring expense and engendering uncertainty in obtainingaccess to justice. Likewise, where complaints have been instituted beforethe SCDRC, transfer of proceedings would require consumers to obtainlegal representation before the District Commission if cases were to betransferred. Such course of action would have detrimental impact onthe rights of consumers. Many consumers may not have the wherewithalBor the resources to undertake fresh burden of finding legal counsel torepresent them in the new forum to which their cases would standtransferred.

68. It would be difficult to attribute to Parliament, whose purposein enacting the Act of 2019 was to protect and support consumers withCan intent that would lead to financial hardship, uncertainty and expensein the conduct of consumer litigation. Ironically, the objection which hasbeen raised in the present case to the continued exercise of jurisdictionby the NCDRC in regard to the consumer complaint filed by the appellantis by the developer who is the respondent herein. It is developer who

Dopposed the continuation of the proceedings before the NCDRC on theground that under the new consumer legislation the pecuniary limits ofthe jurisdiction exercisable by the NCDRC have been enhanced and thecomplaint filed by the appellant which was validly instituted under theerstwhile law should be transferred to the SCDRC. Such course ofaction will result in thousands of cases being transferred across theEcountry, from the NCDRC to the SCDRCs and from the SCDRCs tothe District Commission.

69. Data drawn from annual reports of the Union Ministry ofConsumer Affairs indicates pendency from financial year 2015-16 tofinancial year 2019-20:

Report for FY 2015-16 (figures as on 31.12.2015)[53]

53-https://consumeraffairs.nic.in/sites/default/files/fileuploads/annualreports/H1535004604_AR_2015- 16.pdf , page 34

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]

54-https://consumeraffairs.nic.in/sites/default/files/fileuploads/annualreports/-1535004643_AR_201617.pdf, page 47

55-https://consumeraffairs.nic.in/sites/default/files/fileuploads/annualreports/-1535004742_AR_201718.pdf, page 49

56 https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/_. , page 41

AReport for FY 2019-20 (figures as on 31.10.2019)[57]

CThe above data indicates that as on 31 October 2019, 21,216 caseswere pending before the NCDRC and 1,25,156 cases were pendingbefore the SCDRC. Many of these cases would have to be transferredif the view which the developer propounds is upheld. This will seriouslydislocate the interests of consumers in manner which defeats the objectof the legislation, which is to protect and promote their welfare. ClearDwords indicative of either an express intent or an intent by necessaryimplication would be necessary to achieve this result. The Act of 2019contains no such indication. The transitional provisions contained inSections 31, 45 and 56 expressly indicate that the adjudicatory personnelwho were functioning as Members of the District Commission, SCDRCEand NCDRC under the erstwhile legislation shall continue to hold officeunder the new legislation. Such provisions are necessary because personsappointed to the consumer fora under the Act of 1986 would haveotherwise demitted office on the repeal of the legislation. The legislaturecannot be attributed to be remiss in not explicitly providing for transferof pending cases according to the new pecuniary limits set up for theFfora established by the new law, were that to be its intention. Theomission, when contextualized against the statutory scheme, portendsa contrary intention to protect pending proceedings through Section107(2) of the Act of 2019. This intention appears likely, particularly inlight of previous decisions of the NCDRC which had interpretedGamendments that enhanced pecuniary jurisdiction, with prospectiveeffect. The NCDRC, in Southfield Paints and Chemicals Pvt. Ltd.v. New India Assurance Co. Ltd.[58] construed amending Act 62 of

2002 by which the pecuniary limits of jurisdiction were enhanced witheffect from 15 March 2003 as prospective by relying on its earlierdecision in Premier Automobiles Ltd. v. Dr ManojRamachandran[59], where the NCDRC held that the amendmentsenhancing the pecuniary jurisdiction are prospective in nature [albeiton reliance of the principle in Dhadi Sahu(supra)]. Parliament wouldbe conscious of this governing principle and yet chose not to alter it inits application to the consumer fora.

70. It is accepted, that in defining the jurisdiction of the DistrictCommission, Section 34 of the Act of 2019 entrusts the jurisdiction to“entertain” complaints. similar provision is contained in Section 47and Section 58 in regard to the SCDRC and NCDRC. The expression“entertain” has been considered in two judge Bench decision of thisCourt in Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead)Through Legal Representatives[60], in the context of the provisionsof Order XXI Rule 90 of the CPC. The Court has accepted that theexpression “entertain” means to adjudicate upon or proceed to consideron merits. In Nusli Neville(supra), while considering the provisionsof Section 9A of the CPC as inserted by Maharashtra Amendment,a two judge Bench followed the exposition in HindusthanCommercial Bank(supra). Undoubtedly, the expression “entertain”has been construed in the context of Section 9A of the Code of CivilProcedure, as amended in Maharashtra, by three judge Bench ofthis Court in Nusli Wadia(supra) to mean “to adjudicate upon or toproceed to consider on merits”. Sections 34, 47 and 58 similarly indicatethat the respective consumer fora can entertain complaints within thepecuniary limits of their jurisdiction. These provisions will undoubtedlyapply to complaints which were instituted after the Act of 2019 cameinto force. However, the mere use of the word “entertain” in definingjurisdiction is not sufficient to counteract the overwhelming legislativeintention to ensure consumer welfare and deliberately not provide fora provision for transfer of pending proceedings in the Act of 2019 orunder Section 106 of the Act of 2019 which is power to removedifficulties for period of two years after the commencement of theAct of 2019.

59 Revision Petitions Nos 400 to 402 of 1993 (NCDRC)

60 “Hindusthan Commercial Bank”; (1971) 3 SCC 124

AF Summation

71. For the above reasons, we have come to the conclusion thatproceedings instituted before the commencement of the Act of 2019 on20 July 2020 would continue before the fora corresponding to thoseunder the Act of 1986 (the National Commission, State CommissionsBand District Commissions) and not be transferred in terms of the pecuniaryjurisdiction set for the fora established under the Act of 2019. Whileallowing the appeals, we issue the following directions:

(i)The impugned judgment and order of the NCDRC dated30 July 2020 and the review order dated 5 October 2020,Cdirecting previously instituted consumer case under theAct of 1986 to be filed before the appropriate forum interms of the pecuniary limits set under the Act of 2019,shall stand set aside;

(ii)As consequence of (i) above, the National CommissionDshall continue hearing the consumer case instituted by theappellants;

(iii)All proceedings instituted before 20 July 2020 under theAct of 1986 shall continue to be heard by the foracorresponding to those designated under the Act of 1986Eas explained above and not be transferred in terms of thenew pecuniary limits established under the Act of 2019;and

(iv)The respondent shall bear the costs of the appellantquantified at Rupees Two lakhs which shall be payable withinfour weeks.F

72. The appeals are allowed in the above terms.

73. Pending application(s), if any, stand disposed of.

GDivya Pandey

Appeals allowed.