in the national consumer disputes redressal …

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IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

DIARY NO.13929 - 13932 / NCDRC / 2020M/s. Sahyog Homes Ltd. &Ors. ... Appellants

versusManoj Shah ... Respondent

DIARY N0.13166 / NCDRC / 2020Mohammad MughniUsmani ... Appellant

versusVeenuGoyal&Ors. ... Respondents

DIARY NQ.14180 / NCDRC / 2020M/s. Nabi Mumbai Municipal Corporation Hospital ... Appellant

versusSwati DattaSherkhane&Anr. ... Respondents

DIARY NO. 14345 - 14353 / NCDRC / 2020M/s. Apollo Infra Projects Ltd. &Anr. ... Appellants

versusLeena Mishra&Ors. ... Respondents

DIARY NO.15694 / NCDRC / 2020Sri R.H. Ramchandra&Ors. ... Appellants

versusSudha&Ors. ... Respondents

DIARY N0.15933 / NCDRC / 2020M/s. Parkwood Developers Pvt. Ltd. ... Appellant

versusAbhinavAnand&Ors. ... Respondents

DIARY N0.15934 / NCDRC / 2020M/s. Parkwood Developers Pvt. Ltd. ... Appellant

versusManmohan Singh ... Respondent

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DIARY NO.16400 / NCDRC / 2020... AppellantM/s. Parkwood Developers Pvt. Ltd.

versusSachin Kohli&Ors. ... Respondents

DIARY NO.16401 / NCDRC / 2020M/s. Parkwood Developers Pvt. Ltd. ... Appellant

versusPawanpreetKaur&Ors. ... Respondents

DIARY NO.16402 / NCDRC / 2020M/s. Parkwood Developers Pvt. Ltd. ... Appellant

versusRaman Bakshi ... Respondents

BEFORE:HON'BLE MR. JUSTICE R.K. AGRAWAL, PRESIDENT HON’BLE DR. S.M. KANTIKAR, MEMBER

For the Appellant Mr. KunalCheema, Advocate(D.No. 13929-13932/NCDRC/2020)

Mr. ShubhamBhalla, Advocate(D.No. 13166/NCDRC/2020)Mr. Suhas S. Kadam, Advocate(D.No. 14180/NCDRC/2020)Mr. DhananjayBhaskar Ray, Advocate(D.No. 14345-14353/NCDRC/2020)Mr. Ashok Bannidinni, Advocate(D.No. 15694/NCDRC/2020Mr. VenketRao, Advocate(D.No. 15933, 15934/NCDRC/2020)(D.No. 16400-16402/NCDRC/2020)

ORDER

PRONOUNCED ON : 12th OCTOBER 2020

R.K. AGRAWAL. J.. PRESIDENT

1. M/s. Sahyog Homes Ltd. & six other persons have approached this

Commission challenging the Order dated 28.02.2020 passed by the

Maharashtra State Consumer Disputes Redressal Commission in Consumer

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Complaint Case No. CC/19/455. Even though M/s. Sahyog Homes Ltd. have

filed proposed First Appeal but it has been registered as Diary No. 13929 -

13932/NCDRC/2020.

2. Mr. Mohammad MughniUsmani has approached this Commission

challenging the Order dated 17.12.2018 passed by the Punjab State

Consumer Disputes Redressal Commission, Chandigarh in Consumer

Complaint No. 429/2018. Even though Mr. Mohammad MughniUsmanihas

filed proposed First Appeal but it has been registered as Diary No.

13166/NCDRC/2020.

3. M/s. Nabi Mumbai Municipal Corporation Hospital has approached this


Maharashtra State Consumer Disputes Redressal Commission, Mumbai in

Consumer Complaint No. CC/11/208. Even though M/s. Nabi Mumbai

Municipal Corporation Hospital has filed proposed First Appeal but it has been

registered as Diary No. 14180/NCDRC/2020.

4. M/s. Apollo Infra Projects Ltd. and one another person have

approached this Commission challenging the Order dated 30.05.2019 passed

by the Orissa State Consumer Disputes Redressal Commission, Cuttack in

Consumer Complaint No. 73/2017. Even though M/s. Apollo Infra Projects

Ltd. has filed proposed First Appeal but it has been registered as Diary No.

14345 - 14353/NCDRC/2020.

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Sri B.H. Ramchandra and two other persons have approached this5.


Karnataka State Consumer Disputes Redressal Commission, Bangalore in

Consumer Complaint No. 617 / 2015. Even though Sri B.H. Ramchandra has

filed proposed First Appeal but it has been registered as Diary No.

15694/NCDRC/2020.

6. M/s. Parkwood Developers Pvt. Ltd. has approached this Commission

challenging the Order dated 14.02.2020 passed by the Punjab State


Complaint No. 840 / 2018. Even though M/s. Parkwood Developers Pvt. Ltd.

has filed proposed First Appeal but it has been registered as Diary No.

15933/NCDRC/2020. It has also challenged the Order dated 16.01.2020

passed by the Punjab State Consumer Disputes Redressal Commission,

Chandigarh in Consumer Complaint No. 254 / 2019. Even though M/s.

Parkwood Developers Pvt. Ltd. has filed proposed First Appeal but it has been

registered as Diary No. 15934/NCDRC/2020. It has further challenged the

Order dated 11.12.2019 passed by the Punjab State Consumer Disputes

Redressal Commission, Chandigarh in Consumer Complaint No. 614 / 2019.

Even though M/s. Parkwood Developers Pvt. Ltd. has filed proposed First

Appeal but it has been registered as Diary No. 16400/NCDRC/2020. It has

also challenged another Order dated 11.02.2020 passed by the Punjab State

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Complaint No. 298 / 2018. Even though M/s. Parkwood Developers Pvt. Ltd.

has filed proposed First Appeal but it has been registered as Diary No.

16401/NCDRC/2020. It has challenged another Order dated 24.02.2020

passed by the Punjab State Consumer Disputes Redressal Commission

Chandigarh in Consumer Complaint No. 540 / 2018. Even though M/s.

Parkwood Developers Pvt. Ltd. has filed proposed First Appeal but it has been

registered as Diary No. 16402/NCDRC/2020.

7. The Registry has not registered all the proposed Appeals as the

Appellants herein have not deposited 50% of the awarded amount in terms of

the Orders of the respective State Consumer Disputes Redressal

Commissions (hereinafter referred to as ‘the State Commission’) as required

under the Second Proviso to Sub Section (1) of Section 51 of the Consumer

Protection Act, 2019 (hereinafter referred to as ‘2019 Act’), which had came

into force with effect from 20th/24th July 2020. We may mention here that all

these proposed Appeals have been filed on or after 20th July 2020.

8. The contention of the Learned Counsel for the Appellants is that as the

Complaints were filed much before the date from when the 2019 Act came

into force, the right of Appeal had accrued to the Appellants where they had

been arrayed as Opposite Parties in the Complaints filed before the respective

State Commission, shall be governed by the Provisions of the earlier

enactment, i.e., Consumer Protection Act, 1986 (hereinafter referred to as

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‘1986 Act’). According to the learned Counsel a vested right had accrued to

them to file Appeal under Section 19 of the 1986 Act and the Second Proviso

to Section 19 of the 1986 Act only requires them to deposit 50% of the amount

in terms of the Order of the State Commission or 535,000/- whichever is less

which they have complied with by depositing 535,000/- alongwith their Appeal.

Their submission is that Second Proviso to Sub Section (1) of Section 51 of

the 2019 Act will not be applicable to them and, therefore, they are not

required to deposit 50% of the amount in terms of the Order of the State

Commission impugned in the Appeal. ShriKunalCheema, learned Counsel

appearing for M/s. Sahyog Homes Ltd. and others had referred to and relied

upon the Judgment of the Hon’ble Delhi High Court in “S.K. Mittal and others

vs. Union of India (UOI) &Ors.” [Reported in MANU/DE/0757/2009],

wherein it has been held that “Court fee payable under the Adjudication

Proceedings and Appeal Rules, 1974 in an Appeal filed under Section 52 of

the Foreign Exchange Regulation Act, 1973 would be applicable and not the

Rules contained in Foreign Exchange (Amendment) Adjudication Proceedings

and Appeal Rules 2000 as that Rule would apply only in respect of Appeal

filed under Section 19 of Foreign Exchange Amendment Act, 1999. The

Provisions of Section 6 of The General Clauses Act, 1897 was applied.”

9. We have considered the various submissions made by the learned

Counsel for the Appellants. We deem it appropriate to reproduce the relevant

Provisions of the Consumer Protection Act, 1986, Consumer Protection Act,

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2019 Act as also The General Clauses Act, 1897, which may have material

bearing for deciding the issue involved in these matters:-

Consumer Protection Act 1986

“Section 19“

19. Appeals.—Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:

Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.

Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent.of the amount or rupees thirty-five thousand, whichever is less:

Consumer Protection Act, 2019

“51. (1) Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) or (ii) of clause (a) of subsection (1) of section 47 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:

Provided that the National Commission shall not entertain the appeal after the expiry of the said period of thirty days unless it is satisfied that there was sufficient cause for not filing it within that period:

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Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited fifty per cent.of that amount in the manner as may be prescribed.

(2) Save as otherwise expressly provided under this Act or by any other law for the time being in force, an appeal shall lie to the National Commission from any order passed in appeal by any State Commission, if the National Commission is satisfied that the case involves a substantial question of law.

(3) In an appeal involving a question of law, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the National Commission is satisfied that a substantial question of law is involved in any case, it shall formulate that question and hear the appeal on that question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the National Commission to hear, for reasons to be recorded in writing, the appeal on any other substantial question of law, if it is satisfied that the case involves such question of law.

(5) An appeal may lie to the National Commission under this section from an order passed ex parte by the State Commission."

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

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

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(3) The mention of particular matters in sub-section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal.”

The General Clauses Act 1897

“Effect of repeal.—Where this Act, or any 4 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”

!

From a bare reading of the aforesaid Statutory Provisions it is clear that10.

under Section 19 of the 1986 Act, any person aggrieved by an Order passed

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by the State Commission in exercise of its powers conferred by Sub-Clause (i)

of Clause (a) of Section 17, that is, where the State Commission had decided

the Complaint, can file an Appeal before the National Commission. The

Appeal has to be filed within 30 days from the date of the Order of the State

Commission. The First Proviso to Section 19 gave powers to the National

Commission to entertain an Appeal after the expiry of the said period of 30

days if it is satisfied that there was sufficient cause for not filing it within that

period, i.e., 30 days. The Second Proviso to Section 19 requires an aggrieved

person to either deposit 50% of the amount awarded by the State Commission

to be paid or ?35,000/- whichever is less.

However, under Sub-Section (1) of Section 51 of 2019 Act, any person

aggrieved by an Order passed by the State Commission in exercise of the

powers conferred by Sub-Clause (i) or (ii) of Clause (a) of Sub-Section (1) of

Section 47 can file an Appeal before the National Commission within a period

of 30 days from the date of the order. The First Proviso of Sub-Section (1) of

Section 51 empowered the National Commission to condone the delay if the

Appeal has been filed after 30 days on being satisfied that there was sufficient

cause for not filing the Appeal within that period. The Second Proviso of Sub-

Section (1) of Section 51 of 2019 Act made departure from the Second

11.

Proviso of Section 19of 1986 Act as it now requires that Appeal shall not be

entertained by the National Commission unless the said person (the

Appellant) has deposited 50% of the amount required by the Order of the

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State Commission to be paid. Rest of the Provisions of Section 51 of the

2019 Act are not relevant for deciding the issue involved in these matters.

Sub-Section (1) of Section 107 of the 2019 Act had repealed the12.

Consumer Protection Act, 1986. However, Sub-Section 2 of Section 107 of

2019 Act has saved anything done or anything be performed under that Act,

i.e., 1986 Act in so far as it is not inconsistent with the Provisions of 2019 Act

and shall be deemed to have been done or taken under the corresponding

Provisions of the 2019 Act. Sub-Section 3 of Section 107, however, provides

that the mention of particular matters in Sub Section (2) shall not be held to

prejudice or affect the general application of Section 6 of the General Clauses

Act, 1897 with regard to the effect of repeal. Thus, the Provisions of Section 6

of the General Clauses Act, 1897 have not been affected at all. Section 6 of

the General Clauses Act, 1897 provides the effect of repeal. It provides (i)

that the repeal shall not revive anything not in force or existing at the time at

which the repeal takes effect;(ii) affect the previous operation of any

enactment so repealed or anything duly done or suffered thereunder; (iii)

affect any right, privilege, obligation or liability acquired, accrued or incurred

under any enactment so repealed; (iv) affect any penalty, forfeiture or

punishment incurred in respect of any offence committed against any

enactment so repealed; (v) affect any investigation, legal proceeding or

remedy in respect of any such right, privilege, obligation, liability, penalty,

forfeiture or punishment as aforesaid; and further any such investigation, legal

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proceeding or remedy may be instituted, continued or enforced, and any such

penalty, forfeiture or punishment may be imposed as if the repealing Act or

Regulation had not been passed. Thus, under Clause (c) and (e) of Section 6

of the General Clauses Act, 1897 the repeal of the 1986 Act by Section 107 of

2019 Act will not affect any right which had accrued to any person under 1986

Act and also not affect any legal proceedings or remedy in respect of any such

right and it can be instituted as if the repeal Act has not been passed. The net

result is that if a right of Appeal has accrued to any person the moment a

Complaint has been filed then that right is saved by Section 6 of the General

Clauses Act read with Sub-Section (3) of Section 107 of the 2019 Act.

13. We may mention here that a question arose before a larger Bench of

three-Members of this Commission in the case of “Premier Automobiles Ltd.

vs. Dr. ManojRamachandran&Ors. ” [Reported in 1 (1994) CPU 88 (NC)],

as to whether consequent of the enhancement of pecuniary jurisdiction of the

District Forum from ?1 lakh to ?5 lakh the State Commission has been

divested of its jurisdiction to adjudicate upon Complaints having a valuation

above ?1 lakh and not exceeding ?5 lakhs, which had been validly instituted

before it prior to the commencement of the Consumer Protection

(Amendment) Ordinance, 1993 with effect from June 18, 1993 and re-enacted

by Consumer Protection (Amendment) Act, 1993 with retrospective effect from

18.06.1993 in conformity with the law as of then obtained. This Commission

had held that a right to have the adjudication proceedings continued before

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the State Commission itself became vested in the Complainants when the

validly instituted Complaints before the State Commission prior to the coming

into force of the amending Ordinance whereby the provisions of Section 11 of

the Consumer Protection Act were amended and there is no provision for

transfer of proceedings from the State Commission to a District Forum or

anything else indicative of Parliamentary intention that the said amendment is

to have retrospective effect, the jurisdiction of the State Commission to

continue the adjudication in respect of pending matters validly instituted prior

to the coming into force the amendment stands unaffected. The relevant

paragraphs of the Order passed by this Commission in “Premier

Automobiles Ltd. vs. Dr. ManojRamachandran&Ors.” [supra] is

reproduced for ready reference

“6. We have carefully examined the matter with reference to reported decisions of the Federal Court of India and the Supreme Court and we are firmly and clearly of opinion that the view taken by the State Commission, is erroneous in law and that the impugned orders passed by it require to be set aside.

7. In our opinion the approach of the State Commission is seriously vitiated by the fact that instead of considering the crucial aspect as to whether the amendments introduced by the Ordinance are only prospective in operation or whether they would on the other hand affect pending proceedings and have the effect of divesting the litigants of their right to have their cases adjudicated upon by the very Forums before which they had been validly instituted in accordance with the law as it stood at the time of such institution, the State Commission laid undue emphasis on the word "entertain" which occurs in Sections 11 and 17 of the Act. It is well established principle to be kept in mind while construing the effect

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of any Amending Act that any amendment to a statute which affects the vested rights of an individual which are substantive in nature must be presumed to be only prospective in operation unless the Legislature by language which expressly or by necessary implication has clearly indicated its intention to bring about the change with retrospective operation. Generally and Amending Act should be taken to have been passed in order to advance the purpose of the Act as reflected in the Preamble thereto. The main scheme of the original enactment will ordinarily control the meaning of the amending provisions. The aim and purpose of the parent Act being to facilitate the speedy and inexpensive settlement of consumer disputes. This laudable objective will certainly not be advanced if the aforesaid provisions of the Amending Act are to be construed as requiring the State Commission to discontinue the adjudication of cases which have been pending before it having a valuation not exceeding five lakhs which may have already progressed to various stages of the trial procedure and to transfer all such cases to the District Forum where the entire process will have to be commenced all over again right from the stage of issue of notices. The result of such transfer of pending cases will be only that the trial and final disposal of the cases would be considerably delayed and the complainants (consumers) would also be put to unnecessary additional expenditure by reason of the change of venue of the adjudication.

The paramount factor to be considered while interpreting the scope of an amendment which either takes away the pre-existing jurisdiction of a Court or Forum or brings about a substantial change in the limits of the jurisdiction is the Legislative intent; whether the Parliament has indicated by express words or by clear implication on intention that the changes brought about by the amendment should have retrospective effect so as to take away the vested rights of parties in relation to pending proceedings already instituted by them validly prior coming into force of the amendment. Unfortunately, this aspect has not at all been considered by the State Commission which appears to have rested its

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conclusion only on the fact that the expression "entertain" has to be construed as taking in not merely the initial filing of a proceeding but also the adjudication to be conducted thereupon. Reliance has been placed on certain rulings of the Supreme Court and of some High Courts wherein the scope of the expression "entertain" has been explained. We consider, with respect, that the State Commission was in error in thinking that a decision on the question as to whether the amending provision is prospective in operation or whether it has retrospective effect would depend upon the meaning of the word "entertain" occurring in the parent Act itself. We are also of the further view that the interpretation of the expression "substitution which is the only other aspect discussed by the State Commission in its order can hardly have any impact on the question as to whether the amendment in question has the effect of taking away the vested rights. While substitution no doubt can notes replacement, the question nevertheless remains whether such replacement is with retrospective effect or whether it has only prospective operation.

8. As early as in 1943, the Federal Court of India had authoritatively ruled in VenugopalaReddiar and Another v. KrishnaswamiReddiaralias Raja ChidambaraReddiar and Another - A.I.R. (30) 1943 Federal Court 24, that the right to continue a duly instituted suit before a particular Court or Forum is in the nature of a vested right and it cannot be taken away except by a clear indication of Legislative intention to that effect. By the Constitution Act, 1935 the territory of Burma was separated from British India and it ceased to be a part of British India. Dealing with the question whether the British Indian Court had jurisdiction to continue to adjudicate upon a suit validly instituted before it in respect of properties situated in Burma while the territory of Burma formed part of British India, the Federal Court held that since no contrary intention was expressly expressed or indicated by implication by any of the provisions contained in the Government of India Act, 1935 which brought about the separation, the British Indian Court continued to have jurisdiction to proceed with the trial of a suit which was already pending before it even

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though it related to properties situated in Burma. Dealing with the effect of Section 38(2)(e) of the Interpretation Act which provided that any legal proceeding in respect of any right acquired of accrued under the repealed enactment may be "continued" as if the repealing Act had not been passed, the Federal Court further said that:-

"The view has some times been taken that what is saved is a substantive right acquired under the repealed enactment and that the paragraph cannot be invoked in cases where the substantive right is not taken away by the repealing Act, but the forum for or the method of enforcing it is changed. It has, on the other hand, been maintained that a right to obtain relief in a suit pending at the time when the repealing enactment comes into operation is itself in the nature of a substantive-right."

The following observations made by their Lordships at page 28 of the Report is particularly apposite in the present context:-

"The true position, as we have already stated, is not whether there is an express provision permitting the continuance of pending proceedings, but whether there is any clear indication against the continuance of pending proceedings to their normal termination."

InMohd. Idris and Others v. Sat Narain and Others -: A.I.R. (1966) S.C. 1499, a Constitution Bench of five Judges of the Supreme Court had to consider a similar question. In that case an application under Section 12 of the U.P. Agriculturists Relief Act for redemption of a mortgage of Sir Land had been filed by the party who figured as the respondent before the Supreme Court and the said application was pending before the Munsif, East Allahabad, at the time when the U.P. Zamindari Abolition and Land Reforms Act was amended by Section 67 of Act No. 16 of 1953 as a consequence of which the U.P. Agriculturists Relief Act stood repealed. The question raised in the appeal before the Supreme Court was whether after such

9.

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repeal, the application for redemption which was still pending could continue to be tried by the Munsif, East Allahabad under the U.P. Agriculturists Relief Act. Dealing with the said question, the Supreme Court held:-

"There is nothing in the Abolition Act which takes away the right of suit in respect of pending action there is no provision in the Abolition Act that pending cases were to stand transferred to the Assistant Collector for disposal. Such provisions are commonly found in a statute which takes away the jurisdiction of one Court and confers it on another. From these two circumstances it is to be inferred that if there is at all any expression of intention, it is to keep Section 6 of the General Clauses Act applicable to pending litigation."

10. The same principle was reiterated by the Supreme Court in ManujendraDutt v. Purneda Prasad Roy Chowdhury and Others,: A.I.R. (1967) S.C. 1419. The question which arose for consideration in that case was whether the deletion of Section 29 of the Calcutta Thika Tenancy Act, 1949 by Amendment Act (6 of 1953) had the effect of depriving the Thika Controller of his jurisdiction to continue the adjudication of a suit which was pending before him by virtue of an order of transfer to his Court passed by the Subordinate Judge of Alipore for adjudication under Section 29 of the Tikha Tenancy Act. Rejecting the contention advanced before it by the Counsel for the appellant that the deletion of Section 29 from the Calcutta Tikha Tenancy Act by Section 8 of the Amending Act of 1953 had the effect of depriving the Controller of his jurisdiction to try the suit, the Supreme Court observed thus

"In our view this contention has no force. Though Section 29 was deleted by the Amendment Act of 1953 the deletion would not affect pending proceedings and would not deprive the Controller of his jurisdiction to try such proceedings pending before him at the date when the Amendment Act came into force. Though the Amendment Act did not contain any

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saving Clause, under Section 8 of the Bengal General Clauses Act, 1899, the transfer of the suit having been lawfully made under Section 29 of the Act its deletion would not have the effect of altering the law applicable to the claim in the litigation. There is nothing in Section 8 of the Amending Act of 1953 suggesting a different intention and therefore the deletion would not affect the previous operation of Section 5 of the Calcutta Thika Tenancy Act or the transfer of the suit to the Controller or anything duly done under Section 29. That being the correct position in law the High Court was right in holding that in spite of the deletion of Section 29, the Controller still had the jurisdiction to proceed with the said suit transferred to him."

11. Reference may also be made with advantage to the rulings of High Courts of Bombay, Madhya Pradesh and Punjab and Haryana in C.P. Bannerjee v. B.S. Irani,: A.I.R (1949) Bombay 182, Commissioner of Income-tax, M.P. v. A.N. Tiwari,: (1980) 124 ITR 680 (M.P.) and Commissioner of Income-tax v. Raman Industries, (1980) : 121 ITR 405 (P&H) where also similar views have been taken. In the first decision aforementioned Bhagwati, J. (Senior) sitting as a Judge of the Bombay High Court followed the ruling of the Federal Court cited supra: 1943 Federal Court 24) and held that-

"Where an action has been rightly instituted in a Court which had jurisdiction to entertain it, it would require strong and distinct words to defeat such vested right which has accrued to the litigant."

It was further held that-

"The absence of a provision in the Amending Act for transfer of proceedings instituted in the original side of the High Court to the Small Causes Court had the result of continuing the jurisdiction of the High Court in the matter of determination and trial of suits which had been rightly received by it."

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12. Likewise, in (1980): 121 ITR 405 cited above a Division Bench of the Punjab and Haryana High Court held that while a statute dealing with procedure is generally regarded as retrospective and its provisions will apply to proceedings pending at the time of its enactment, a statute which affects substantive vested rights will be only prospective in operation unless there is a clear indication by the legislature to the contrary effect. The learned Judges further observed that the jurisdiction of a Tribunal to try a case is vested right and is to be determined according to the law in force at the time of its institution and any change in law brought about while a case is pending cannot affect the right of parties to continue proceedings in that Tribunal in the absence of clear provisions to the contrary. To the same effect is the dictum of a Division Bench of the Madhya Pradesh High Court in Commissioner of Income-tax v. A.N. Tiwari, : (1980) 124 ITR 680. Therein the Division Bench referred to the rulings of the Supreme Court in Mohd. Idris and Others v. Sat Narain and Ors., : A.I.R. (1966) S.C. 1499 and Manujendra v. PurneduProsad Roy Chowdhury and Ors., : A.I.R. (1967) S.C. 1419 and held -

"It may be stated as a general principle that a law which brings about a change in forum does not affect pending actions unless intention to the contrary is clearly evinced. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings from the Court or tribunal where they are pending to the Court or tribunal which under the new law gets jurisdiction to try them."

13. The legal position is further placed beyond all realm of doubt by a very recent pronouncement of the Supreme Court in Commissioner of Income-tax, Orissa v. ShriDhadiSahu, JT ; 1992 (6) S.C. 714 wherein a Division Bench consisting of YogeshwarDayal and Dr. A.S. Anand, JJ. had occasion to consider the question whether an amendment carried out in Section 274(2) of the Income-tax Act by the Taxation (Laws) Amendment Act, 1970 with effect from April 1, 1971 whereby the

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jurisdiction of the Inspecting Assistant Commissioner of Income-tax to hold proceedings for imposition of penalty under Section 271(1)(c) was restricted to cases where the income in respect of which particulars have been concealed or incorrect particulars have been furnished by the assessee exceeded Rs. 25,000/-. Prior to the said amendment, the jurisdiction to deal all cases concerned with imposition of penalty under Section 271(1)(c) where the minimum penalty imposable exceeded a sum of Rs. 1,000/- was vested in the Inspecting Assistant Commissioner of Income-tax. The question which arose for consideration before the Supreme Court was whether by reason of the amendment of Section 274(2) of the Income-tax Act, the Inspecting Assistant Commissioner stood divested of his jurisdiction to adjudicate upon proceedings pending before him for the imposition of penalty in cases where the income forming the subject matter of concealment etc. did not exceed Rs. 25,000/- which proceedings had been validly commenced by him prior to the coming into force of the amending Act or whether they had all to be transferred? to the Income-tax Officer. Expressing their approval of the dictum laid down by the decisions of the Bombay, Madhya Pradesh and Punjab and Haryana High Courts cited above and following the earlier rulings of the Supreme Court in : A.I.R. (1966) S.C. 1499 and : A.I.R. (1967) S.C. 1419, the learned Judges held-

"That the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change over of proceedings, from the Court or the Tribunal where they are pending to the Court or the Tribunal which under the new law gets jurisdiction to try them."

It was further observed that-

"It is also true that no litigant has any vested right in the matter of procedural law but where the question is of change of forum it ceases to be a question of procedure only. The forum of

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/i

appeal or proceeding is a vested right as opposed to pure procedure to be followed before a particular forum. The right becomes vested when the proceedings are initiated in the Tribunal or the Court of first instance and unless the legislature has by express words or by necessary implication clearly so indicated, that vested right will continue in-spite of the change of jurisdiction of the different Tribunals or forums."

14. The Supreme Court overruled the decision of the Karnataka High Court in Addl. Commissioner of Income-tax, Karnataka v. M.Y. Chandragi, (1981): 128 ITR 256 and also the decision of the Allahabad High Court in Commissioner of Income-tax v. Om Sons, (1979) : 116 ITR 215.

15. In the light of the principles laid down as above by the aforesaid decisions of the Federal Court of India and the Supreme Court and also by the rulings of the Bombay, Madhya Pradesh and Punjab and Haryana High Courts referred to supra which have all been approved in the latest judgment of the Supreme Court referred to above, it becomes clear that the correct legal position is that a right to have the adjudication proceeding continued before the State Commission itself became vested in the complainants when the validly instituted complaints before the State Commission prior to the coming into force of the amending Ordinance whereby the provisions of Section 11 of the Consumer Protection Act were amended. Since there is no provision for transfer of proceedings from the State Commission to a District Forum or anything else indicative of Parliamentary intention that the said amendment is to have retrospective effect the jurisdiction of the State Commission to continue the adjudication in respect of pending matters validly instituted prior to the coming into force the amendment stands unaffected. We hold that the contrary view taken by the Karnataka State Commission is incorrect and unsustainable in law and that the State Commission has acted illegally and without jurisdiction in directing the transfer of the case to the District Forum. Hence the impugned

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orders passed by the State Commission directing that the complaint petitions which had been validly instituted before it long prior to the commencement of the Amendment Ordinance should be sent to the Bangalore Urban District Forum for the reason that the value of goods or services and the compensation claimed therein did not exceed Rs. 5 lakhs are hereby set aside.”

14. The above said decision was followed by another Larger Bench of

three-Members of this Commission in the cases of Original Petition No. 286

of 2000 - M/s. Southfield Paints and Chemicals Pvt. Ltd. Vs. New India

Assurance Co. Ltd., Original Petition No. 300 of 2000 - Jan Seva Ashram

Vs. T.I.L. Ltd. &Anr. andOriginal Petition No. 315 of 2000 - Smt. Kalpana

Ben &Ors. Vs. Kalpesh V. Parikh &Anr- decided on 08.04.11 wherein this

Commission has held that the amendment brought by the Amendment Act, 62

of 2002 regarding the pecuniary jurisdiction of District Forum, State

Commission and this Commission is prospective in nature and not

retrospective. Relevant paragraphs of the Order dated 08.04.11 passed in the

aforesaid cases, are reproduced below for ready reference:-

" Exactly the same point had arisen in the context of the Consumer Protection Amendment Act 50 of 1993, which came up for consideration before a three- Member Bench of this Commission in Premier Automobiles Ltd, vs. Dr.Manoi Ramachandran&Ors. -Revision Petitions No.400, 401, 402/1993 decided on 21.12.1993 - 1(1994) CPJ 88 (NC). In terms of the Consumer Protection Amendment Act 50 of 1993, the pecuniary jurisdiction of the District Forums had been raised from Rs.1 lakh to Rs.5 lakh, State Commission from Rs.5 lakh to Rs.20 lakh and this Commission exceeding Rs.20 lakh. The question posed was answered in the following terms :

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“The question raised in these three Revision Petition is whether consequent on the enhancement of the pecuniary jurisdiction of the District Forum from rupees one lakh to rupees five lakhs, the State Commission has been divested to its jurisdiction to adjudicate upon complaints having a valuation above rupess one lakh and not exceeding rupees five lakh which had been validly instituted before it prior to the commencement of the amending Ordinance in conformity with the law as it then obtained.”

After considering the judgements of Federal Court of India, the Supreme Court and various High Courts, this Commission came to the conclusion that the amendments were prospective in nature. Para-7 of the said judgement reads as under :

“In our opinion the approach of the State Commission is seriously vitiated by the fact that instead of considering the crucial aspect as to whether to amendments introduced by the Ordinance are only prospective in operation or whether they would on the other hand affect pending proceedings and have the affect of divesting the litigants of their right to have their case adjudicated upon by the very Forums before which they had been validly instituted in accordance with the law as it stood at the time of such institution, the State Commission laid undue emphasis on the word “entertain” which occurs in Section 11 and 17 of the Act. It is well established principle to be kept in mind while construing the affect of any Amending Act that any amendment to a statute which affects the vested rights of an individual which are substantive in nature must be presumed to be only prospective in operation unless the Legislature by language which expressly or by necessary implication has clearly indicated its intention to bring about the change with retrospective operation. Generally and Amending Act should be taken to have been passed in order to advance the purpose to the Act as reflected in the Preamble thereto. The

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main scheme to the original enactment will ordinarily control the meaning of the amending provisions. The aim and purpose of the parent Act being to facilitate the speedy and inexpensive settlement of consumer disputed. This laudable objective will certainly not be advanced if the aforesaid provisions of the Amending Act are to be construed as requiring the State Commission to discontinue the adjudication of cases which have been pending before it having a valuation not exceeding five lakhs which may have already progressed to various stages of the trial procedure and to transfer all such cases to the District Forum where the entire process will have to be commenced all over again right from the stage of issue of notice. The result of such trial and final disposal of the case would be considerably delayed and the complainants (consumers) would also be put to unnecessary addition expenditure by reason of the change of venue of the adjudication.

The paramount factor to be considered while interpreting the scope of an amendment which either takes away the pre-existing jurisdiction of a Court or Forum or brings about a substantial change in the limits of the jurisdiction is the Legislative intent; whether the Parliament has indicated by express words or by clear implication on intention that the changes brought about by the amendment should have retrospective effect so as to take away the vested rights of parties in relation to pending proceedings already instituted by them validly prior coming into force of the amendment. Unfortunately, this aspect has not at all been considered by the State Commission which appears to have rested its conclusion only on the fact that the expression “entertain” has to be construed as taking in not merely the initial filing of a proceeding but also the adjudication to be conducted thereupon. Reliance has been placed on certain rulings of the Supreme Court and of some High Courts wherein the scope of the

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expression “entertain” has been explained. We consider, with respect, that the State Commission was in error in thinking that a decision on the question as to whether the amending provision is prospective in operation or whether it has retrospective effect would depend upon the meaning of the word “entertain” occurring in the patent Act itself. We are also of the further view that the interpretation of the expression “substitution” which is the only other aspect discussed by the State Commission in its order can hardly have any impact on the question as to whether the amendment in question has the effect of taking away the vested rights. While substitution no doubt cannotes replacement, the question nevertheless remains whether such replacement is with retrospective effect or whether it has only prospective operation. ”

We respectfully agree with the law laid down by this Commission in Premier Automobiles case (supra). Otherwise also, the law laid down by this Commission in the aforesaid judgement is a binding precedent. Respectfully following the said decision, it is held that the amendments brought about by the Amendment Act 62 of 2002 regarding pecuniary jurisdiction of the District Forum, State Commission and this Commission are prospective in nature. The plea raised by the opposite parties that the amendments are retrospective in nature, is rejected.

15. I n “HooseinKasam Dada (India) Ltd. Vs. The State of Madhya

Pradesh and Ors.[AIR 1953 SC 221]”, the Hon’ble Supreme Court had

considered the question as to whether change in law after initiation of

proceedings in lower Court requiring deposit of amount in appeal a condition

for admission of Appeal is whether procedural or not. It had held that the right

of Appeal is not merely a matter of procedure but a matter of substantive right

and becomes vested in a party when the proceedings are first initiated in, and

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before a decision is given by the inferior Court. Thus, an existing right of

Appeal is not a mere alteration in procedure. Such a vested right cannot be

taken away except by express enactment or necessary intendment. An

intention to interfere with or to impair or imperil such a vested right cannot be

presumed unless such intention be clearly manifested by express words or

necessary implication. Relevant paragraphs of the Judgment of the Hon’ble

Supreme Court in the case of “HosseinKasam Dada (supra), are reproduced

below for ready reference:-

"5. That the amendment has placed a substantial restriction on the assessee's right of appeal cannot be disputed, for the amended section requires the payment of the entire assessed amount as a condition precedent to the admission of its appeal. The question is whether the imposition of such a restriction by amendment of the section can affect the assessee's right of appeal from a decision in proceedings which commenced prior to such amendment and which right of appeal was free from such restriction under the section as it stood at the time of the commencement of the proceedings. The question was answered in the negative by the Judicial Committee in Colonial Sugar Refining Co., Ltd. v. Irving L.R. [1905] A.C. 369. In that case the Collector of Customs acting under an Act called the Excise Tariff Act, 1902, required the appellants to pay Pounds 20,100 excise duty on 6,700 tons of sugar. The appellants disputed the claim. So they deposited the money with the Collector and then brought the action by issuing a writ on the 25th October, 1902. A special case having been stated for the opinion of the Supreme Court that Court on the 4th September, 1903, gave judgment for the Collector. In the meantime the Judiciary Act, 1903, was passed and received Royal assent on the 25th August, 1903, that is to say about 10 days before the judgment was delivered. By section 39(2) of that Act the right of appeal from the Supreme Court to the Privy Council given by the Order in Council of 1860 was taken away

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and the only appeal therefrom was directed to lie to the High Court of Australia. The appellants having with the leave of the Supreme Court filed an appeal to the Privy Council the respondents filed a petition taking the preliminary point that no appeal lay to the Privy Council and praying that the appeal be dismissed. In dismissing that application Lord Macnaghten who delivered the judgment of the Privy Council said

"As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure ? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."

6. The principle of the above decision was applied by Jenkins C.J. in Nana bin Aba v. Sheku bin Andu I.L.R.(1908) 32 Bom. 337 and by the Privy Council itself in Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi (1927) L.R. 54 IndAp 421; I.L.R. 9 Lah. 284. A Full Bench of the Lahore High Court adopted it in Kirpa Singh v. RasaldarAjaipal Singh A.I.R. 1928 Lah. 627. It was there regarded as settled that the right of appeal was not a mere matter of

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procedure but was a vested right which inhered in a party from the commencement of the action in the Court of first instance and such right could not be taken away except by an express provision or by necessary implication.

7. In Sardar Ali v. Dalimuddin I.L.R. (1929) 56 Cal. 512 the suit out of which the appeal arose was filed in the Munsiff's Court at Alipore on the 7th October, 1920. The suit having been dismissed on the 17th July, 1924, the plaintiffs appealed to the Court of the District Judge but the appeal was dismissed. The plaintiffs then preferred a second appeal to the High Court on the 4th October, 1926. That second appeal was heard by a Single Judge and was dismissed on the 4th April, 1928. In the meantime Clause 15 of the Letters Patent was amended on the 14th January 1928 so as to provide that no further appeal should lie from the decision of a Single Judge sitting in second appeal unless the Judge certified that the case was a fit one for appeal. In this case the learned Judge who dismissed the second appeal on the 4th April, 1928, declined to give any certificate of fitness. The plaintiffs on the 30th April, 1928, filed an appeal on the strength of clause 15 of the Letters Patent as it stood before the amendment. The contention of the appellants was that the amended clause could not be applied to that appeal, for to do so would be to apply it retrospectively and to impair and indeed to defeat a substantive right which was in existence prior to the date of the amendment. The appellants claimed that on the 7th October, 1920, when the suit was filed they had vested in them by the existing law a Substantive right to Letters Patent appeal from the decision of a Single Judge and that an intention to interfere with it, to clog it with a new condition or to impair or imperil it could not be presumed unless it was clearly manifested by express words or necessary intendment. In giving effect to the contentions of the appellants Rankin C.J. observed at pg. 518

"Now, the reasoning of the Judicial Committee in The Colonial Sugar Refining Company's case is a conclusive authority to show that rights of appeal are not matters of procedure, and that the right to enter the

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superior court is for the present purpose deemed to arise to a litigant before any decision has been given by the inferior court. If the latter proposition be accepted, I can see no intermediate point at which to resist the conclusion that the right arises at the date of the suit."

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

9. As against the last mentioned decision of the Calcutta High Court Sri GanapathyAiyar, appearing for the respondent, refers us to the decision of a Bench of the Bombay High Court in the case of Badruddin Abdul Rahim v. SitaramVinayakApte MANU/MH/0081/1928 : I.L.R.(1928) 52 Bom. 753 A.I.R. (1928) Bom.371, where it was held that the amendment of clause 15 of the Letters Patent operated retrospectively. That case followed an earlier decision of the same High Court in FramjiBomanji v. HormasjiBarjorji (1866) Bom. H.C. (O.C.J.) 49. The decision in the old case proceeded upon two grounds, namely, (1) that the question was one of procedure and (2) that section 2 of the New Letters Patent of 1865 gave retrospective operation to the Letters Patent by making it applicable to all pending suits. In so far as the first ground is concerned it clearly runs counter to the decision of the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving (supra) and must be taken as overruled as Fawcett J. himself acknowledged at page 756. As regards the second ground it is inapplicable to the case before us and it is not necessary to express any opinion as to the soundness and validity of that ground. It may be mentioned here that in ShaikhHasan Abdul Karim v. King Emperor I.L.R. (1945) Bom. 17, another Bench of the same High Court expressly dissented from the decision in Badruddin Abdul Rahim v. SitaramVinayakApte (supra). The principle laid down in the Colonial Sugar Refining Co. 's case (supra) was followed by a Special Bench of Madras in In re

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r

VasudevaSamiar AIR. (1929) Mad. 381; 56 M.L.J. 369. A Full Bench of the Allahabad High court in Ram Singh v. Shankar Dayal MANU/UP/0085/1928 : AIR1928AII437 fell into line and held that the earlier decision on this point of that Court in Zamin AH Khan v. Genda MANU/UP/0090/1904 ; I.L.R. (1904) 26 All. 375, stood overruled by the Privy Council decision in the Colonial Sugar Refining Co. 's case. A Full Bench of the Nagpur High Court in Radhakisan v. Shridar A.I.R. (1950) Nag. 177, has also taken the same view. The Punjab High Court has also adopted the same line in Gordhan Das v. The Governor General in Council A.I.R. (1952) Pun 103.

10. The case of NagendraNath Bose v. Mon Mohan Singha Roy (1930) 34 C.W.N. 1009, is indeed very much to the point. In that case the plaintiffs instituted a suit for rent valued at Rs. 1,306/15 and obtained a decree. In execution of that decree the defaulting tenure was sold on the 20th November, 1928, for Rs. 1,600. On the 19th December, 1928, an application was made, under Order XXI, rule 90 of the Code of Civil Procedure, by the present petitioner, who was one of the judgment- debtors, for setting aside the sale. That application having been dismissed for default of his appearance the petitioner preferred an appeal to the District Judge of Hoogly who refused to admit the appeal on the ground that the amount recoverable in execution of the decree had not been deposited as required by the proviso to section 174, clause (c), of the Bengal Tenancy Act as amended by an amending Act in 1928. The contention of the petitioner was that the amended provision which came into force on the 21st February, 1929, could not affect the right of appeal from a decision on an application made on the 19th December, 1928, for setting aside the sale. Mitter J. said at page 1011

"We think the contention of the petitioner is well- founded and must prevail. That a right of appeal is a substantive right cannot now be seriously disputed. It is not a mere matter of procedure. Prior to the amendment of 1928 there was an appeal against an order refusing to set aside a sale (for that is the effect also where the application to set aside the sale is

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dismissed for default) under the provisions of Order 43, rule (1), of the Code of Civil Procedure. That right was unhampered by any restriction of the kind now imposed by section 174(5), Proviso. The Court was bound to admit the appeal whether appellant deposited the amount recoverable in execution of the decree or not. By requiring such deposit as a condition precedent to the admission of the appeal, a new restriction has been put on the right of appeal, the admission of which is now hedged in with a condition. There can be no doubt that the right of appeal has been affected by the new provision and in the absence of an express enactment this amendment cannot apply to proceedings pending at the date when the new amendment came into force. It is true that the appeal was filed after the Act came into force, but that circumstance is immaterial - for the date to be looked into for this purpose is the date of the original proceeding which eventually culminated in the appeal."

11. The above decisions quite firmly establish and our decisions in Janardan Reddy v. The State [1950] S.C.R. 941 and in GanpatRai v. Agarwal Chamber of Commerce Ltd. (1952) S.C.J. 564, uphold the principle that a right of appeal is not merely a matter of procedure. It is matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. In the language of Jenkins C.J. in Nana bin Aba v. Shaikh bin Andu (supra) to disturb an existing right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.

12. Sri GanapathyAiyar urges that the language of section 22(1) as amended clearly makes the section retrospective. The new proviso, it is pointed out, peremptorily requires the authority not to admit the appeal unless it be accompanied by a satisfactory

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proof of the payment of the tax in respect of which the appeal is preferred and this duty the authority must discharge at the time the appeal is actually preferred before him. The argument is that after the amendment the authority has no option in the matter and he has no jurisdiction to admit any appeal unless the assessed tax be deposited. It follows, therefore, by necessary implication, according to the learned Advocate, that the amended provision applies to an appeal from an assessment order made before the date of amendment as well as to an appeal from an order made after that date. A similar argument was urged before the Calcutta Special Bench in Sardar Ali v. Dalimuddin (supra), namely, that after the amendment the court had no authority to entertain an appeal without a certificate from the Single Judge. Rankin C.J. repelled this argument with the remark at page 520

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

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

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such a situation and the jurisdiction of the authority has to be exercised under the old law which so continues to exist The argument of Sri Ganapathylyer on this point, therefore, cannot be accepted.

14. The learned Advocate urges that the requirement as to the deposit of the amount of the assessed costs does not affect the right of appeal itself which still remains, intact, but only introduces a new matter of procedure. He contends that this case is quite different from the case of Sardar Ali v. Dalmuddin (supra), for in this case it is entirely in the power of the appellant to deposit the tax if he chooses to do so whereas it was not within the power of the appellant in that case to secure a certificate from the learned Single Judge who disposed of the second appeal. In the first place the onerous condition may in a given case prevent the exercise of the right of appeal, for the assessee may not be in a position to find the necessary money in time. Further this argument cannot prevail in view of the decision of the Calcutta High Court in NagendraNath Bose v. Mon Mohan Singha (supra). No cogent argument has been adduced before us to show that that decision is not correct. There can be no doubt that the new requirement "touches" the substantive right of appeal vested in the appellant. Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended section gives is certainly less than the right which was available before. A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. Indeed the new requirement cannot be said merely to regulate the exercise of the appellant's pre-existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure.

15. Finally, Sri Ganapathylyer faintly urges that until actual assessment there can be no 'Us' and, therefore, no right of appeal can accrue before that event. There are two answers to this plea. Whenever there is a proposition by one party and an opposition to that proposition by another a 'lis' arises. It may be conceded, though not deciding it, that when the

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assessee files his return a 7/s' may not immediately arise, for under section 11(1) the authority may accept the return as correct and complete. But if the authority is not satisfied as to the correctness of the return and calls for evidence, surely a controversy arises involving a proposition by the assessee and an opposition by the State. The circumstance that the authority who raises the dispute is himself the judge can make no difference, for the authority raises the dispute in the interest of the State and in so acting only represents the State. It will appear from the dates given above that in this case the 'Us' in the sense explained above arose before the date of amendment of the section. Further, even if the 'lis' is to be taken as arising only on the date of assessment, there was a possibility of such a 'lis' arising as soon as proceedings started with the filing of the return or, at any rate, when the authority called for evidence and started the hearing and the right of appeal must be taken to have been in existence even at those dates. For the purposes of the accrual of the right of appeal the critical and relevant date is the date of initiation of the proceedings and not the decision itself.

16. For all the reasons given above we are of the opinion that the appellant's appeal should not have been rejected on the ground that it was not accompanied by satisfactory proof of the payment of the assessed tax. As the appellant did not admit that any amount was due by it, it was under the section as it stood previously entitled to file its appeal without depositing any sum of money. We, therefore, allow this appeal and direct that the appeal be admitted by the Commissioner and be decided in accordance with law. The appellant is entitled to the costs of this appeal and we order accordingly.”

16. In the case of Videocon International Limited Vs Securities And

Exchange Board Of India [Reported in (2015) 4 SCC 33", the Hon’ble

Supreme Court has held as under:-

”39. As illustrated above, an appellate remedy is available in different packages. What falls within the

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parameters of the package at the initial stage of the lis or dispute constitutes the vested substantive right of the litigant concerned. An aggrieved party, is entitled to pursue such a vested substantive right as and when, an adverse judgment or order is passed. Such a vested substantive right can be taken away by an amendment, only when the amended provision, expressly or by necessary intendment, so provides. Failing which, such a vested substantive right can be availed of, irrespective of the law which prevails, at the date when the order impugned is passed, or the date when the appeal is preferred. For it has repeatedly been declared by this Court, that the legal pursuit of a remedy, suit, appeal and second appeal, are steps in a singular proceeding. All these steps, are connected by an intrinsic unity, and are regarded as one legal proceeding.”

17. The Hon’ble Supreme Court in the case of “K. Raveendranathan Nair

and Another vs. Commissioner of Income Tax and Others [(2017) 9 SCC

355]”, after considering the decision of 'HooseinKasam Dada (India) Ltd.

Vs. The State of Madhya Pradesh and Ors. (supra)” and as held as

follows:-

Reference was also made to another judgment of this Court in State of Bombay v. Supreme General Films Exchange Ltd. MANU/SC/0007/1960 : (1960) 3 SCR 640 In that case the issue was whether in the absence of provision giving retrospective effect to certain amendments to court fee payable with effect from April 01, 1954, the court fee payable on appeal was payable according to the law in force at the time of the filing of the suit prior to this date or the law in force at the time of the filing of the appeal. This Court held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.

”8.

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I

We are not inclined to accept the aforesaid plea inasmuch as the High Court has decided the issue in categorical terms. Therefore, it would be appropriate to reflect on the said decision and to find out as to whether this decision is correct in law. It is a different matter that after the legal position is clarified, the same can be applied in respect of those appeals which are covered thereby. ”

15.

18. The Hon’ble Delhi High Court in the case of “S.K. Mittal and others vs.

Union of India (UOI) &Ors.”” (supra) has referred to the decision of the

Hon’ble Supreme Court in “HooseinKasam Dada (supra)” and has

reproduced the principles emerging therefrom as follow:-

“16. This judgment of the Privy Council was followed by the Supreme Court in HooseinKasam Dada (India) Limited v. The State of Madhya Pradesh and Ors. MANU/SC/0075/1953 ; 1983(13)ELT1277(SC). In the said case, provisions of the Sales Tax Act were amended to provide for payment of entire disputed Sales Tax instead of admitted tax at the time of filing of appeal before the prescribed authority. In the said case, the proceedings for assessment were initiated before the amendment but the order and the appeal were filed after the amendment requiring payment of the disputed tax also. The Supreme Court made referred to another judgment of the Privy Council in Delhi Cloth and General Mills Co. Limited v. Income^ Tax Commissioner Delhi MANU/PR/0050/1927 and several other cases and it was observed that right to appeal is not a matter of procedure but is a substantive right, which becomes vested in a party when proceedings are first initiated and is not dependent upon the date of the decision of the inferior court. Further onerous condition or stipulations on the pre-existing right to appeal have the effect of negating and putting fetters on the preexisting rights, will not apply if they have been

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i.

imposed after the proceedings were initiated. This principle of law is, however, subject to express enactment or necessary intendment to the contrary in the amendment or the repeal. Therefore, the amended statute or the repealed Act can take away the right to appeal or impose more onerous conditions and fetters on the right to appeal but there should be an express provision or by necessary implication retrospective effect is required to be given. The said legal proposition was again considered at length by the Supreme Court in GarikapatiVeeraya MANU/SC/0008/1957 : [1957]1SCR488 . The following legal propositions are enumerated in the majority judgment:

N. SubbiahChoudhryv.

23. From the decisions cited above the following principles clearly emerge:

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

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

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

(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides

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'' i.expressly or by necessary intendment and not otherwise. ”

Thus, from the law laid down by the Hon’ble Supreme Court in various19.

decisions referred to above as also the Hon’ble Delhi High Court and applied

by the Larger Bench of this Commission as already referred hereinbefore, we

are of the considered opinion that now it is well-established that a right of

Appeal is a vested and a substantive right which cannot be altered, modified

by putting stringent conditions as that right of Appeal had accrued to the

person concerned from the date of initiation of the proceedings i.e. from the

date of filing of the Complaint before the appropriate fora under the 1986 Act

be it the District Consumer Disputes Redressal Forum, the State Consumer

Disputes Redressal Commission or the National Consumer Disputes

Redressal Commission,unless the modification which has been made

subsequently in the 2019 Act has been made retrospective in operation. In the

present cases, the Provisions of the Second Proviso of Sub-Section (1) of

Section 51 of the 2019 Act has not been made retrospective in operation and

in view of the Sub-Section 3 of Section 107 of the 2019 Act as also Section 6

(c) and (e) of the General Clauses Act, 1897, the right of Appeal which had

accrued to these persons from the date of filing of Complaint stands as a

vested and substantive right and cannot be changed. Thus, in view of the

foregoing discussions, we are of the considered opinion that the Second

Proviso of Sub-Section (1) of Section 51 of the 2019 Act shall not be

applicable where the person aggrieved is challenging the Order passed by the

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<rState Commission in an Appeal arising out of a Complaint Case filed prior to

20th / 24th July 2020 when the 2019 Act came into operation/was enforced.

Accordingly, we direct the Registry to register these cases as First

Appeals and number themafter verifying as to whether the Appellants have

deposited €35,000/- in each case, as contemplated under the Second Proviso

of Section 19 of 1986 Act.

20.

21. List all these Appeals separately on 14.10.2020.

Sd/-

(R.K. AGRAWAL J.) PRESIDENT

Sd/-

(DR. S.M. KANTIKAR) MEMBER

YD/RS/

of 39

in the national consumer disputes redressal …

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