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TMI Blog2012 (5) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... in public of the work, and by reason of such refusal the work is withheld from the public; or (b) has refused to allow communication to the public by [broadcast], of such work or in the case of a [sound recording] the work recorded in such [sound recording], on terms which the complainant considers reasonable, the Copyright Board, after giving to the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that the grounds for such refusal are not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to re-publish the work, perform the work in public or communicate the work to the public by [broadcast], as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Copyright Board may determine; and thereupon the Registrar of Copyrights shall grant the licence to the complainant in accordance with the directions of Copyright Board, on payment of such fee as may be prescribed. Explanation.-In this sub-section, the expression "Indian work" includes- (i) an artistic work, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the rates, not just for PPL, but for all music providers, including Super Cassettes, although, it was not a party to the proceedings. Mr. Sibal submitted that on 9th September, 2010, Music Broadcast Pvt. Ltd., hereinafter referred to as "MBPL", wrote to Super Cassettes informing it that MBPL proposed to broadcast the works in which copyright was owned by Super Cassettes on the terms fixed in the aforesaid order of the Copyright Board dated 25th August, 2010. Mr. Sibal submitted that this was done despite the fact that MBPL had an existing voluntary licence from Super Cassettes, which had subsisted since 25th March, 2002, and had been amended and renewed a number of times since then. It was also submitted that several other broadcasters with existing voluntary licence from Super Cassettes wrote similar letters to it. 7. Super Cassettes filed Writ Petition No.6255 of 2010, questioning the order passed by the Copyright Board dated 25th August, 2010. After hearing Super Cassettes and the Respondents, including MBPL, on 15th September, 2010, the Delhi High Court passed an interim order to the effect that the order dated 25th August, 2010, passed by the Board would not be relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, even though it was willing to pay a reasonable fee for making such broadcast and may also have to give up its action under Section 31 of the Copyright Act. Mr. Sibal urged that the High Court went on to hold that refusal to grant interim relief would frustrate the rights of a broadcaster under Section 31 of the Copyright Act, which would render the provisions of the statute futile and nugatory. 10. It was further held by the High Court that where the controversy concerns only the quantum of licence fee, an interim protection should be granted and even though Super Cassettes was not a party to the order of the Copyright Board dated 25th August, 2010, it is similarly placed as PPL, which was bound by the order passed by the Board on 25th August, 2010. Accordingly, it was appropriate that Super Cassettes should also receive 2% of the net advertisement revenue as licence fee in the interim period for broadcasting of its sound recordings. 11. Mr. Sibal urged that the Division Bench of the Bombay High Court chose not to differ with the decision of the Single Judge in Music Choice India Pvt. Ltd. Vs. Phonographic Performance Ltd. [(2009) 39 PTC 597], in which the learned Single Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred on the District Forum and the State Commission, they had no jurisdiction to exercise such powers which had not been expressly given to them. 14. Mr. Sibal also referred to the decision of this Court in Morgan Stanley Mutual Fund Vs. Kartick Das [(1994) 4 SCC 225], wherein this Court was considering the scope of the provisions of the Consumer Protection Act, 1986. On construction of Section 14 of the said Act, this Court came to the conclusion that there was no power under the Act to grant any interim relief, even of an ad interim nature. Their Lordships who decided the matter, observed as follows : "......... If the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under Section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience." 15. Reference was also made to a decision of the Punjab and Haryana High Court in Sham Lal Vs. State Election Commission [AIR 1997 P&H 164], in which the High Court was considering a similar question as to whether the Election Tribunal constituted under the Punjab State Election Commission Act, 1994, had the power to pass an inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other tribunals to whom such express powers had not been given. Learned counsel urged that there were certain tribunals which completely supplemented the jurisdiction of the Civil Court and, therefore, exercised all the powers of the Civil Court in respect of the matters entrusted to them by statute. In this regard, reference was made to Section 41(1) of the Armed Forces Tribunal Act, 1985, which specifically provides that the Tribunal shall have all jurisdiction, powers and authority exercisable by all courts in matters relating to service. Reference was also made to other Tribunals, such as, the Telecom Disputes Settlement & Appellate Tribunal, the National Green Tribunal and also the Debts Recovery Tribunal, which had been expressly vested with powers to pass interim orders under the statutes under which they had been created. Mr. Sibal submitted that there were no similar provisions in the Copyright Act, which granted such powers to the Copyright Board. 19. Mr. Sibal then submitted that notwithstanding the fact that the Copyright Board was discharging quasi-judicial functions, it did not possess inherent powers to pass interim orders, since it continued to be a tribunal govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that when there was a dispute as to the quantum of fees payable by the licencee, an interim compulsory licence had to be given. Mr. Sibal submitted that in the face of the well-established propositions of law, the High Court's order could not stand and was liable to be set aside. 23. Dr. Abhishek Manu Singhvi, learned Senior Advocate, appearing for the Respondent, firstly contended that although Section 31 of the Copyright Act may not have expressly vested the power to pass interim orders on the Copyright Board pending disposal of an application for grant of a compulsory licence, the same would have to be read into the Section as being incidental to the powers granted by the Statute to the Board to grant compulsory licences. Dr. Singhvi urged that it could not have been the intention of the legislature that pending the determination of the right of an applicant to a compulsory licence, the public should be deprived of the entertainment of listening to music in respect of which the owner has the copyright, in this case, Super Cassettes. 24. Dr. Singhvi urged that if it were to be held that the Board did not have such power to grant an interim compulsory licence, the consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o disputes with respect to assignment of copyright. It was submitted that the said provision clearly indicated that the Board was an adjudicating authority in regard to disputes between the parties and would, therefore, be deemed to be vested with ancillary powers to make interim orders in aid of the final relief that could be granted under Section 31 of the Act. 28. Dr. Singhvi urged that the Copyright Act contemplated the grant of three types of licences, namely :- (i) voluntary; (ii) compulsory; and (iii) statutory. Dr. Singhvi urged that Sections 30, 31 and 31-A of the Act deal with grant of voluntary, compulsory and statutory licences. However, while Section 30 deals with grant of voluntary licences by the owners of the copyright, Sections 31 and 31-A speak of grant of licences for broadcasting works which had been withheld from the public, either by the copyright owners, or where the owner of an Indian work is either dead or untraceable. However, Section 52 of the Act also made provision that certain acts performed by broadcasters were not to be considered as infringement of copyright. In particular, reference was made by Dr. Singhvi to Section 52(1)(j)(iv) which indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit the generality of the powers of the Tribunal under Section 22(1) and that Section 19(6) was an enabling provision and that certain types of stay orders and injunctions mentioned therein could be passed by the Tribunal, but the same could not be deemed to be exhaustive nor restricting the Tribunal's powers only to those types of injunctions or stay orders mentioned therein. It was also observed that in addition, Rule 18 enabled the Tribunal to pass orders to secure the ends of justice. Dr. Singhvi urged that the aforesaid decision of this Court was based on its earlier decision in Industrial Credit & Investment Corporation of India Ltd. Vs. Grapco Industries Ltd. & Ors. [(1999) 4 SCC 710], wherein it had been held that the Debts Recovery Tribunal had jurisdiction under Section 19(6) of the DRT Act to grant interim orders, since such power inheres in a Tribunal. 30. Dr. Singhvi lastly contended that the decision in Rajeev Hitendra Pathak 's case (supra) could not be relied upon for a decision in this case on account of the fact that in the said case this Court was called upon to consider as to whether the District Forum and the State Commission had been vested with powers of rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en gradually increased by legislation from time to time and even in regard to the question of subsisting licences and the grant of new licences, there could be no dispute as to the powers vested in the Copyright Board and the orders which it was competent to pass. Mrs. Singh, however, introduced another dimension into the debate by contending that the membership of the Copyright Board is drawn from various quarters. There being 14 members, it does not meet regularly and decisions in cases are, therefore, deferred for long intervals. In fact, as pointed out by Mrs. Singh, sometimes it is not possible to hold even one meeting in a month. In such cases, unless the power to grant interim orders were read into the provisions of Section 31 of the Act, there would be a complete stalemate in regard to cases where matters were pending before the Board and the public would be deprived of the pleasure of listening to such music and sound broadcasting. 34. Mr. Harish Salve, learned Senior Advocate, in his turn provided another twist to the question under consideration in urging that inherent powers exist in an appellate forum. Mr. Salve urged that this was not a case where the Copyright Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of a statute, the court must take into consideration all situations including the interest of the person who intends to have a licence for replay of the sound recording in respect whereof another person has a copyright. It, however, would not mean that all and sundry can file applications. The mechanism to be adopted by the Board for determining the right of a complainant has been provided under the Act." Mr. Sibal urged that the decision of the High Court was liable to be set aside and that of the Copyright Board was liable to be restored. 37. What emerges from the submissions made on behalf of the respective parties is the dispute as to the width of the powers vested in the Copyright Board under Section 31 of the Copyright Act. There is no dispute that the Copyright Act is a Code by itself and matters relating to copyrights and grant of licences in respect of such copyrights have been left to the Copyright Board for decision. Chapter II of the Copyright Act, 1957, deals with the establishment of a Copyright Office and the constitution of a Copyright Board and the powers and procedure to be exercised and formulated for the functioning of the said Board. Section 11 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 346 of the Code of Criminal Procedure, 1973 (2 of 1974)] and all proceedings before the Board shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1860)". As would be noticed, the Copyright Board has been empowered to regulate its own procedure and is to be deemed to be a Civil Court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973, and all proceedings before the Board shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code. The provisions clearly indicate that the Copyright Board discharges quasi-judicial functions, which as indicated in Sections 19-A, 31, 31-A, 32 and 52, requires the Board to decide disputes in respect of matters arising therefrom. In fact, Section 6 also spells out certain disputes which the Copyright Board has to decide, and its decision in respect thereof has been made final. However, for the purposes of these appeals we are concerned mainly with Section 31, which has been extracted hereinabove. 38. Elaborate submissions have been made regarding the power of the Copyright Board to grant interim compul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extent that in the absence of any express power conferred on the District Forum and the State Commission under the Consumer Protection Act, they had no jurisdiction to exercise powers which had not been expressly given to them. 40. Even the decision rendered in Bindeshwari Prasad Singh's case (supra), which was a decision as to the jurisdiction of a Magistrate to review or recall his order, it was held that in the absence of any specific power in the Code of Criminal Procedure, the Magistrate was not entitled to exercise such a power. 41. On the other hand, the various decisions cited on behalf of the Respondent and the interveners were in the context of the question as to whether a Tribunal has incidental powers, which were inherent though not specifically vested, in order to preserve the statusquo as in M.K. Mohammed Kunhi's case (supra), Allahabad Bank, Calcutta 's case (supra) or even in Grapco Industries Ltd.'s case (supra), till a decision was reached in the pending matter. 42. In the instant case, the power being sought to be attributed to the Copyright Board involves the grant of the final relief, which is the only relief contemplated under Section 31 of the Copyrigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion reached by my learned brother Justice Kabir, I wish to add a few lines. 2. To my mind, the issue is not whether the Copyright Board is a Court or a Tribunal while exercising the jurisdiction under Section 31 of the Copyright Act or any other Section, which authorises the Copyright Board to perform certain adjudicatory functions. It is also not the issue whether Courts or Tribunals have such powers, which are categorised as powers ancillary to their jurisdiction irrespective of the fact that the Statute, which created the jurisdiction, does not, always, expressly provide for the exercise of such ancillary powers. This Court has held on more than one occasion that such powers could be implied - Income Tax Officer vs. M.K. Mohammed Kunhi, 1969 (2) SCR 65 and Allahabad Bank, Calcutta vs. Radha Krishna Maity and others, (1999) 6 SCC 755. As noticed by my learned brother at para 39 of the Judgment, there have been decisions of this Court, which appear conflicting on the question whether a Statutory Tribunal has powers other than those expressly conferred by the Statute. 3. In the ultimate analysis, both the Courts and the Tribunals are adjudicatory bodies to whom the Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscriminate grant of such interim reliefs are capable of producing public mischief see Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Limited and others, (1985) 1 SCC 260. This Court opined that the injury, if any, to the party approaching the Court is reversible and the public interest in certain instances should outweigh the temporary inconvenience of individuals. 8. Take another example, if a returned candidate to the constitutionally created Legislative Bodies could be restrained from functioning as a legislator by an interim order pending the adjudication of the legality of such candidate's election, the same would produce great public mischief. 9. Therefore, different considerations come into play depending upon the context or nature of the legal rights at issue or subject matter of the dispute, etc., in deciding the question whether an adjudicatory body can be said to have been invested with the power to grant interim orders, which are identical or substantially similar to the final relief that can be afforded in the lis by implication from the scheme and language of the enactment, which created the jurisdiction. 10. For deciding the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the public", because of the "owner's" refusal to republish the work, etc.; secondly, the owner's refusal is on grounds, which are "not reasonable" in law. Whether the owner is withholding the republication on grounds, which are unreasonable or not, is a question, which can only be decided upon affording a complete hearing to the owner of the work, as I have already indicated the reason for withholding need not only be monetary. Take for example the case of a book or a cinematograph film, such as, Satanic Verses or Da Vinci Code, which have created quite some commotion in certain quarters including the security threat to the author or owner of the work. If the author, on realising that repeated publication of the work might endanger his security, declines or refuses republication of the work, it cannot be said that the author (owner) unreasonably withheld republication. Such a refusal has nothing to do with the monetary considerations. Therefore, by conceding a power to grant ad hoc compulsory licence during the pendency of the proceeding, under Section 31, would not only render the final inquiry into the question, a futile exercise in a case where the owner has reasons other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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