Kotwal, J.:— The only question, which falls for determination of the Full Court is:—

Whether the majority view taken by a Full Bench of this Court in Ramzan Darzi v. Mst. Azizi, Cr. Reference Nos. 28 and 32 of 1976 and Cr. Reference Nos. 4 and 208 of 1975: (1976 Cri LJ 897) (J and K), (FB), needs reconsideration?

2. The petitioner herein, filed an application under Section 145 of the Cr PC, before Judicial Magistrate Magam, in respect of some land. The Magistrate, being unable to come to any conclusion, as to who was in actual possession of the subject of dispute, took recourse to Section 146 of the Cr PC, and forwarded the record of the proceeding to Munsiff Magam for returning a finding on possession. In the meantime, it appears, Sections 145, 146, 147 and 148 of the Cr PC were amended vide the Code of Criminal Procedure (Amendment) Ordinance 1973 (No. VI of 1973) and later on replaced by Act No. II of 1974. One of the consequences these amendments was that disputes pertaining to land as defined in the J. and K. Agrarian Reforms Act, 1972 were made exclusively triable by either the District Magistrate, or an Executive Magistrate of the Ist Class. The civil court returned its finding to the Judicial Magistrate Magam, admittedly, after the aforesaid Amending Act had come into force, holding the counter petitioners to be in possession of the disputed land. The Magistrate, in turn passed the final order under Sub-Section (6) of Sec. 145, holding the counter petitioners to be in possession of the subject of the dispute. A revision was taken by the petitioner to the Sessions Judge at Srinagar, but that too failed, which made her file a fresh revision petition in the High Court. This revision petition came up for hearing before one of us, namely, Anand J., before whom order of the courts below were assailed on the authority of the majority view taken in Ramzan Darzi's case (supra). The learned Judge, being of the opinion, that majority view taken in the aforesaid case was not correct, and finding himself in agreement with the minority view taken by Mufti, J. recommended vide his order of reference dated September 10, 1976, reconsideration of the majority view by a larger Bench. It is in this background, that this reference has come up before the Full Court. The reasons which have impelled my learned brother Anand J., to make the reference are as below:

(a) There is no provision in the Amending Act for transfer of pending cases to Executive Magistrates, nor has a Judicial Magistrate any power to himself transfer a pending case to an Executive Magistrate, which must necessarily imply that the Amending Act was not in tended to be made applicable to pending cases;

(b) The expression, ‘shall be exercisable’, clearly denotes that the amended provision is to apply to future actions alone; and

(c) Under Sub-Section (1-b) of Section 146 of the Cr PC the civil court has to transmit its finding to the very Magistrate who made the reference, and on receipt of the reference, the same Magistrate must pass the final order in accordance therewith, more so, when the finding of the Civil Court is not open to challenge, either in appeal or in revision, which shows that the Amending Act cannot be possibly given a retroactive operation.

3. I propose to deal with the reasons suggested by my learned brother Anand J., but only after I have dealt with the other contention of Mr. M.L Bhat, learned counsel for the respondents, that an Act which takes away the jurisdiction of a court to try a particular lis even though procedural in nature, cannot be construed to be retrospective in its application, in the sense, that it cannot have application to pending actions, unless expressly or by necessary intendment made applicable to them. The same principle according to Mr. Bhat, was laid down in the two authorities, viz.; Hazari Tewari v. Mst. Maktula, AIR 1932 All 30 and V.C Bus Service v. H.B Sethna; AIR 1965 Mad 149 relied upon by Jaswant Singh C.J and Mian Jalal-ud-Din, J., as their Lordships then were, for supporting their view, and the reliance, as such, argued the learned counsel, was clearly misplaced. He also referred to a number of other decisions on the same point.

4. In the wake of the J. and K. Separation of Judicial and Executive Functions Act, 1966, the Code of Criminal Procedure underwent a number of changes. Consequently, jurisdiction to proceed under Section 145 was exclusively conferred upon the Chief Judicial Magistrate, or any other Judicial Magistrate of the 1st class, having territorial jurisdiction in relation to the disputed property, irrespective of its nature. Later on, Section 145 was amended and a proviso was added to Section 145(1) taking away the jurisdiction of the Chief Judicial Magistrates and the Executive Magistrates to proceed under this Section, where the property in dispute was land as defined in the J. and K. Agrarian Reforms Act, 1972. The proviso which eventually came to be added by Act No. II of 1974, reads thus:—

“Provided that where the dispute likely to cause a breach of peace concerns any land as defined in the Jammu and Kashmir Agrarian Reforms Act, 1972, the powers under this Section shall be exercisable only by the District Magistrate or an Executive Magistrate of the first class.”

5. A question therefore arose in Ramzan Darzi's case (1976 Cri LJ 897) (J and K) (FB) (supra) as to whether or not, jurisdiction of Judicial Magistrates to try cases pertaining to land as defined in the Agrarian Reforms Act, 1972, which were still pending in their courts, was also taken away. The majority constituting the Full Bench, as already stated, took the view, that as the amendment related to procedure alone, was retrospective in its application, as no party could claim a vested right in procedure, and held, that in that sense, it applied to pending cases also, even though the amending provision did not say so expressly or by necessary implication. Mufti J, on the other hand, took a contrary view, and held, that unless an Amending Act was made applicable to pending actions also, jurisdiction of the courts to proceed with their trial could not be deemed to have been taken away. The learned Judge was further of the opinion, that the two decisions relied upon by the majority, did not support the view taken by it. The other circumstance which influenced the mind of the learned Judge to take a different view was, the absence of any provision for transfer of pending cases to Executive Magistrates in Act No. II of 1974, and what Mr. Bhat has therefore argued, also finds support from the minority view in Ramzan Darzi's case (supra).

6. Law defines, and therefore creates rights, and also specifies the way, in which it will aid and protect them. It would be a substantive law, so far as it creates the rights, and procedural law, so far as it makes provisions for aiding or protecting them. There is a clear distinction between a right to bring action and a right that a particular action should be tried in a particular way. Only the former is a vested right, whereas, the latter is simply a matter of procedure. The questions who should try a particular case, or in what way a particular case should be tried, are questions, which indeed belong to the realm of procedure and cannot be said to relate to either the existence or non-existence of a right of action. Secondly, their answer in one way or the other, does not affect any vested right of a litigant. Every right at common law, or which vests in a litigant by virtue of any statute or the personal law governing him, shall be deemed to be a substantive right. A right to bring a suit, for instance, is a common law right, which vests in every subject, but who will try the suit, is a matter relating to procedure alone, in which no vested right can be ordinarily claimed by a litigant. A law, which adversely affects substantive right of a party, shall be presumed to be prospective in operation, unless made retrospective expressly or by necessary intendment, as its retrospective operation is bound to affect a right already vested in a litigant. Pari ratione, a law, which only ousts the jurisdiction of a court to try a particular action, shall be ordinarily deemed to be retroactive in operation, as it cannot have the effect of depriving a litigant of any right vested in him. Authorities are legion on the point, some of which I proceed to consider presently. In S.L and B. Co. v. Ahmad Majtoba, AIR 1946 Cal 337, an execution was pending, in which an amount more than double the principal sum was being recovered from the judgement-debtor. During the pendency of the execution proceedings, Assam Money Lenders Act was amended to the effect, that in no case could a creditor recover more than double the principal amount from his debtor. A question therefore arose, whether the Amending Act was applicable to the pending execution application. The Bench answered the question in the negative, and quoted with approval, the following observations made by Danman C.J in Hitchook v. Way, (1837) 6 A and E 943:

“The ordinary rule is that the rights of litigants are to be governed by the law in force when the action was commenced. The corollary from this is that a change in the substantive law, as opposed to adjective law, would not affect pending actions, unless the Legislature had indicated otherwise either by express enactment or by necessary implication.”

7. In Lalitabai Banwarilal…Plaintiff; v. The Dominion Of India,…Defendant., AIR 1954 Bom 527 the plaintiff had filed a suit in the High Court for declaration, that ornaments attached by the Income-tax authorities for recovery of arrears of income-tax from her father, were in fact, her property and not liable to attachment. An objection was taken by the defendants that such a suit was barred under Section 226(1) of the Government of India Act, 1935, as it related to recovery of revenue. While the suit was still pending, the Constitution came into force and this bar was removed by Article 225. A question therefore arose, as to whether, the Article was retrospective and applied to pending suits. The court held, that Article 225 merely related to procedure and had to be applied the moment it came into force, as no party had a vested right in a particular procedure or to a particular forum. It quoted with approval the following observations made by Shah J. in Shiv Bhagwan v. Onkar Mal, AIR 1952 Bom 365 (at p. 373):

“……the question that arises for determination is whether, notwithstanding the fact that the court had no jurisdiction with regard to this property at the inception of the suit, this court can try the suit with regard to this property by reason of the fact that jurisdiction was subsequently conferred on it ……Now, I think it may be said as a general principle that no party has a vested right to a particular proceeding or to a particular forum, and it is also well settled that all procedural laws are retrospective unless the Legislature expressly states to the contrary …… This court was bound to take notice of the change in the law and was bound to administer the law as it was when the suit came on for hearing. Therefore if this court had jurisdiction to try the suit when it came on for disposal, it could not refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted.”

8. In the same case, the court while dealing with the question of interpreting a Statute, which not only affected the procedure but also affected substantive right of a litigant, held as under (at pp. 531, 532 of AIR 1954 Bom):—

“Another argument, also of despair, was that Article 225 is not merely procedural and should, therefore, be regarded as prospective in its operation and not retrospective. Where rights and procedure are dealt with together by any provision of law it may well be the intention of the Legislature that the old rights should be determined by the old procedure. But it seems clear to me that the proviso to Article 225 only deals with jurisdiction and not with any rights. The strictly accurate concept would seem to be that when any substituted procedure is followed by the court, it does not really give retrospective operation to the same but merely applies rules of procedure as it finds them at that time.

9. It is true that the expression “retrospective” is used by the highest authority in decided cases but it is also pointed out that the word when used in the context of procedural law is in itself ambiguous. Procedural law relates to process of litigation and it is rather the means and instrument by which the aims of substantive law are attained. It also deals with the modes in which a right of action already existing is to be asserted, I shall only refer to one sentence from Salmond's Jurisprudence, 10th Edn. as it is an apt answer to the present argument. It is as follows (p. 476)

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

10. Effect of fresh legislation on pending cases, also came to be considered by the Supreme Court in Jose Da Costa v. Bascora, (1976) 2 SCC 917 : AIR 1975 SC 1843, wherein it was held (at pp. 1849, 1850):

“Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind two well established principles. The first is that “while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions, which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment”. (See Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commr.) 54 Ind App 421 : (AIR 1927 PC 242). The second is that a right of appeal being a substantive right of the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are two exceptions to the application of this rule viz., (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect and (2) when the court to which appeal lay at the commencement of the suit stands abolished (see Garikapatti Veeraya v. N. Subbiah Choudhry, 1957 SCR 488 : (AIR 1957 SC 540) and Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369).”

11. The law laid down in the two decisions relied upon by the majority in Ramzan Darzi's case (1976 Cri LJ 897) (J and K) (FB) (supra) too is not different, as argued by Mr. Bhat, or as viewed by Mufti J. in his dissenting judgement. In V.K Bus Service case (AIR 1965 Mad 149) (supra) a claim was made to the Motor Accidents Claims Tribunal constituted under Section 110(1) of the Motor Vehicles Act, 1939, which related to an accident that had occurred prior to the constitution of the Tribunal. Jurisdiction of the Tribunal was challenged on the ground, that vested right of the claimant to claim larger period of limitation under the ordinary law would be taken away in case the Tribunal was allowed to adjudicate upon the claim, as lesser period for making claim petitions was prescribed in the Motor Vehicles Act. Reliance was placed on an unreported decision of the same High Court wherein, following a single Bench decision of the Punjab High Court in Mulak Raj v. Northern India Goods Transport Co., AIR 1962 Punj 307, it had been held that shortening of period of limitation impinged on the vested right of a party. Veeraswami J., did not agree with this view, and placing reliance upon the decision of the Allahabad High Court in Hazari Tewari v. Mst. Maktula, AIR 1932 All 30, held that law prescribing limitation was procedural and no one could claim any vested right in it. According to the learned Judge, limitation could not conceivably start running for an action in a different forum created under the new Act in respect of a cause of action which had accrued before coming into force of the new Act creating the new forum as in such a case there would be no forum in existence at the time when limitation would actually start running. Retrospective application of the law of limitation - a procedural law, in such a case, would be impossible. The court was too categoric when it said (at p. 901 of Cri LJ):

“I take it as irrefutable law that no litigant has, or can have, vested right in a particular forum. He cannot say as a matter of right that his suit or application should be tried by this or that forum which existed on the date his cause of action arose. Forum belongs to the realm of procedure and does not constitute substantive right of a party or a litigant. It should also be borne in mind that cause of action is not to be confused with a forum, and a cause of action, whatever vested rights it may carry with it, does not include a right to insist upon a particular Court or Tribunal or Judge or any other. It follows, therefore, that any statutory law which changes a forum, may not raise a question of retrospective operation, unless of course, in exceptional cases, it is inseparably intertwined with vested rights.”

12. The other authorities cited by Mr. Bhat, also do not support his contention. Katikara Chintaman1 Dora v. Guntreddi Annamanaidu, (1974) 1 SCC 567 : (AIR 1974 SC 1069), for instance, was a case where retrospective operation of Acts Nos. 17 and 18 of 1957, which had altered substantive law, was being considered. Mahendra Nath v. Moti Ram, AIR 1975 Delhi 155 was a case wherein implications of Specific Relief Act of 1963 which had repealed the earlier Act of 1877 were examined. Rohtagi J., held, that even a procedural statute should not be construed to be retrospective in operation, where the result would be to create new disabilities or obligations or to impose new duties on the transactions which were already complete at the time the new Act came into force. In other words, what the learned Judge meant to say was, that where a statute which created new obligations or imposed new duties it was not merely procedural but affected the vested rights of the parties, Likewise, A.V Ibrahim v. M. Cariappa, AIR 1971 Mys 298 was a case, where Mysore Rent Control Act of 1961 had come into force during the pendency of a suit for ejectment, which had not only changed the forum of such actions, but had also created new rights in the tenants and also created new disabilities in the landlords including deprivation of their right to go in appeal. In these circumstances it was held that the Act could not be applied to pending actions. The following observations made by the court may be quoted with advantage (at p. 300):

“This view of ours does not also derogate from the rule of statutory construction that the law relating to procedure in regard to the conduct of cases should ordinarily be held to be retrospective for the reasons that amending law which alters the forum and abridges existing rights of appeal is not merely a procedural law.”

13. In Allied Exports and Imports v. State, AIR 1971 Andh Pra 218 (FB) it was held, that a law which took away the right of action even though remedial in nature could not be applied retrospectively, as right of action and right of appeal were not procedural rights, but were substantive rights. Ekbote J. who spoke for the court observed (at p. 222):

“Likewise the distinction between a right to remedy and a mere procedure to be followed in prosecuting that remedy must also be kept in view. The law of procedure deals with the process by which a remedy for the enforcement of a right is prosecuted. A right of suit and a right of appeal are remedies for the enforcement of a right and these remedies are equally substantive rights though remedial in nature. The law, it must be understood, makes a clear distinction between rules of law which in any way impair or destroy those rights and those which a litigant has to comply with for availing himself of those remedial rights. The latter belong to the law of procedure. While the former can be taken away or affected by an express provision of law or by a law which has that necessary implication, the latter relating to the procedure can be altered without detriment to the substantive rights or remedies.

In cases where rights substantive or remedial are touched the presumption is that the Legislature does not intend to take away or affect such rights retrospectively unless as stated earlier the intention of the Legislature is made explicit in that behalf. However, in regard to the procedural law, the general presumption is that the alteration in the procedure is retrospective in the sense that it not only applies to the pending cases but also applies to causes of action which had arisen before the change in the procedure was effected. But there is no exception to this general rule. In cases where the alteration in procedure would have the effect of destroying the right of action, the procedural law also is presumed to be prospective and not retrospective.”

14. The principles, which emerge out of the aforesaid decisions, may be summed up as below:—

(i) A suitor has a right to prosecute his suit to its logical end, in the court in which it has been filed, on the basis of the cause of action which has accrued to him, before the jurisdiction of the court is ousted by any law. Therefore, a Statute, ousting the jurisdiction of a court, has to be construed strictly.

(ii) A Statute which affects substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intendment, whereas, a Statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective. Again, a Statute which is retrospective in its application, should never be given an extended meaning, and should be strictly confined to its clearly defined limits.

(iii) Law relating to forum and limitation is also procedural in nature, whereas law relating to right, of action acid right of appeal, even though remedial, is yet substantive in nature:

(iv) Every litigant has a vested right in substantive law, but no such right exists in procedural law.

(v) A procedural Statute should not be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties, in respect of transactions already accomplished.

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

15. Examined critically, the decisions relied upon by Mufti J., also conform to the same principles. In Venugopala v. Krishnaswami, AIR 1943 FC 24, a question arose, whether a court in India, after separation of Burma in the year 1937, had jurisdiction to continue the trial of a suit, filed before 1937, in respect of immovable property situated in Rangoon. Admittedly, no courts for trial of such suits had by then been established in Burma, and no provision had been made in any law for the transfer of such suits to the courts in Burma. The High Court had held, that a right to get relief from the court, in which a suit was filed, was a substantive right. This reasoning was not considered by the Federal Court for upholding the judgement of the High Court. On the other hand, the court based its decision on the authority of Colonial Sugar Refinery Co. v. Irving, 1905 AC 369, wherein, it had been held, that right of appeal was a substantive right, which could not be taken away by the Judiciary Act, unless the Act was made retrospective in its application. In the absence of any transferee court in Burma, the Federal Court was of the opinion, that change in forum was out of question and, therefore, applying the Separation Act to pending suits in such circumstances would virtually result in total abolition of the plaintiff's right of action. It drew a parallel between a right to file a suit and a right to file an appeal, and holding, that both were substantive rights, dismissed the appeal filed by the defendants. The following lines from the judgement may make the position a little more clear:—

“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 substantive right. As we consider that the third ground of decision adopted by the High Court, namely, the principle of the ruling in 1905 AC 369 is sufficient to support the decision of the High Court, we prefer to rest our decision on that ground.”

16. This brings me to the reasons assigned by my learned brother Anand J., in his order of reference, which I proceed to examine ad seriatim:

17. True, there is no provision in the Amending Act for transfer of cases to Executive Magistrates but that does not mean, that ordinary provisions of the Code of Criminal Procedure are also to be ignored. Clause (e) of Sub-Section (1) of Section 526 empowers the High Court to transfer cases to Executive Magistrates in such circumstances. A Sessions Judge too, may exercise similar power under Sub-Section (1-c) of Section 528. In any case therefore, mere absence of a provision in the Amending Act, will not detract from its normal interpretation, that it being only procedural in character, shall have to be applied to pending cases as well. A provision for transfer of cases to Executive Magistrates, if at all it existed in the Act, would have been there for the purpose of abundant caution only.

18. With due respect, the construction placed on the expression ‘shall be exercisable’ by Anand J. also does not appear to be correct. This expression, according to its plain grammatical connotation, refers to the point of time when the Amending Act shall come into force. Strictly speaking, there is no question of applying a procedural statute in retrospect. It becomes applicable only from the day it is enforced, leaving the previous proceedings unaffected. It is retrospective in the feigned sense of having application to pending cases, unlike a statute, which upsets a cause of action already accrued, and takes away substantive right, already vested in a party to a pending action.

19. Turning now to the last reason, which is, of course, a little more attractive, in my opinion the expression ‘the Magistrate by whom the reference was made’ occurring in Sub-Section (1-b) of Section 146 of the Cr PC, is wide enough to include in its ambit, the successor-in-office of the Magistrate as well. Unless such an interpretation is placed upon these words, the Sub-Section instead of carrying out the object and purpose of the Act, may produce absurd situations, or may even create an impasse. What would, for instance happen, if after a reference is made to a Civil Court, the court of the Magistrate is abolished, or say his magisterial powers are taken away? To whom shall then the civil court transmit its findings? To render Sub-Section (1-b) operative under all conditions it has to be construed in a more reasonable and broader way so that the expression ‘the Magistrate by whom the reference was made’, also means and includes the successor of the Magistrate making the reference. In Sk. Salim v. State of W.B, (1975) 1 SCC 653 : AIR 1975 SC 602 the Supreme Court discouraged the practice of placing undue stress on literariness in interpreting a Statute. To quote Chandrachud J., as his Lordship then was (at p. 604):

“It is an established rule of construction that unless the language of the statute is ambiguous, the words used by the legislature ought to be given their plain, literal meaning. But it is equally important that by no rule of construction may the words of a statute be so interpreted as to bring about absurd situations in practice. The stranglehold of stark literalness has therefore to be avoided in order to give a rational meaning and content to the language used in the statute. Thus, though the word ‘forthwith’ cannot be construed so as to permit indolence or laxity on the part of the officer charged with the duty of reporting the detention to the State Government, reasonable allowance has to be made for unavoidable delays, always remembering that the detaining authority must explain any long delay by pointing out circumstances due to which the report to the State Govt. could not be made with the greatest promptitude.”

20. Looking at the question from another angle, it cannot be gainsaid, that the language of the proviso added to Sub-Section (1) of Section 145 is clear enough and does not admit of any ambiguity. It would not be, therefore, permissible to either interpret it, or control its meaning with the aid of Sub-Section (1-b) of Section 146. The only effect of the proviso added to Sub-Section (1) to Section 145 vide Act No. II of 1974 was, that jurisdiction to try proceedings under the said Section in relation to land, as defined in the Agrarian Reforms Act, 1972, which till then vested in Judicial Magistrates alone, was taken away, and the same was vested in Executive Magistrates. The right, if any, of a party to continue the proceeding to its logical conclusion, who had instituted the same in the court of a Judicial Magistrate, was not taken away, but only the forum was changed. The proceeding had to proceed to its logical end, though through a different instrumentality. The change in forum was to take effect only from the date the Amending Act came into force, and all proceedings taken by the Judicial Magistrate till then were kept unaffected. No right, much less a substantive right, of a party could be possibly involved in giving effect to the amended law from the day it was enforced. Speaking otherwise too, there is no such thing as ‘cause of action’ in a criminal proceeding. Every offence is committed against the State, and no right of even a victim of offence to seek any relief from the Criminal Court is involved. His position, in the eye of law, is no better than that of a witness; the aggrieved party being the State itself. The purpose and object of penal law is not to give any relief to the victim of offence, but to punish the offender, with a view to making the subjects abide by the laws of the land, and thereby maintain peace and harmony. Unlike a suitor in a civil action, where he is to approach the civil court and establish his locus standi to get the relief claimed, cognizance of an offence may be taken by a Magistrate even suo motu. The same is true of proceedings under Section 145 of the Cr PC also. The purpose of this proceeding is not to pass a decree for possession in favour of a party, but the only object is to maintain the possession of a party in order to prevent apprehended breach of peace. Much assistance, therefore, cannot be had from decisions given in civil cases in interpreting a statute, altering procedure to be followed in a criminal or quasi-criminal proceeding.

21. Viewed thus, the majority judgement in Ramzan Darzi's case (1976 Cri LJ 897) (J and K) (FB) : (supra) lays down the correct law and needs no reconsideration.

22. The record of the case will be sent back to the learned single Judge for final disposal of the revision petition in accordance with law.

Mian Jalal-Ud-Din, C.J:— I agree.

Dr. Anand, J.:— I have had the advantage of going through the elaborate judgement prepared by my learned brother Kotwal J. The learned Judge has placed reliance upon (1976) 2 SCC 917 : AIR 1975 SC 1843 and (1975) 1 SCC 653 : AIR 1975 SC 602 besides some other authorities with a view to clarify the doubts expressed by me in my order of reference dated September 10, 1976. Both these judgements were not brought to my notice while sitting singly. Although I am in general agreement with the judgement proposed by my learned brother yet I feel that the absence of a clear provision in the Amending Act to the effect that it would apply retrospectively led to the controversy and confusion. Whenever the legislature intends the operation of an Amending Act to apply retrospectively, it is desirable that it should make a necessary exhibition of that intention in the Act itself. A perusal of Section 5(2) of the Separation of Judicial and Executive Functions Act, 1966, Section 19(4) of the Agrarian Reforms Act, 1976 and a host of similar other Acts shows that provisions have been made by the legislature in those Acts for the retrospective operation as also in regard to the application of the amended law to pending cases. A similar provision should have been made in the Amending Act also. However, I am in agreement with the view that forum belongs to realm of procedure and does not constitute a substantive right of a party to have the lis decided in a particular forum. The Amending Act, in this view of the matter, has been rightly held to have retrospective operation and would apply to the pending cases. With these few words, I accord my concurrence to the judgement proposed to be delivered by my learned brother Kotwal J.

G.M Mir, J.:— I agree.

23. Answered accordingly