Sumitra Nandan Gupta vs The Copyright Board Etc.
1970 Latest Caselaw 100 Del

JUDGMENT

H.R. Khanna, C.J.

(1) Shri Sumitra Nandan .Gupta by means of this petition under Articles 226 and 227 of the Constitution of India has prayed for the issuance of a writ for quashing the order dated July 7, 1966, of the Copyright Board and for restraining the Board f

(2) The matter relates to copyright in the 38 works of the famous Hindu poet, Shri Maithili Sharan Gupta, who died in December, 1964. ri Urmila Charan Gupta respondent No. 3 and Shri Charushila Sharan Gupta respondent No. 4 are the son and brother respectively of late Shri Maithili Sharan Gupta. Shri Maithili Sharan Gupta had two other brothers, Shri Siyaram Sharan Gupta and Shri Ram Kishor Gupta. Shri Siyaram Sharan Gupta died in 1962 and the petitioner under a will is his legal representative. Shri Ram Kishor Gupta too is dead, On September 19, 1960 the petitioner filed a statement of particulars in respect of 38 works of Shri Maithili Sharan Gupta. According to that statement the petitioner was the publisher and owner and that the copyright in the said works was jointly held by Shri Maithili Sharan Gupta, Shri Siyaram Sharan Gupta, Shri Charushila Sharan Gupta respondent No. 4 and Shri Sumitra Nandan Gupta petitioner. The particulars of the works, in accordance with the above statement, were entered in the register of copyrights.

(3) An application dated November 22, 1965, under Sections 49 and 50(b) of the Copyright Act, 1957 (14 of 1957) (hereinafter referred to as the Act) was filed by respondent No. 3 on the allegation that Shri Sumitra Nandan Gupta petitioner and his father had got the copyrights in the aforesaid works of Shri Maithili Sharan Gupta entered in their name in the register of copyrights by making false representation. The entries were alleged to have been wrongly made and as such were liable to be expunged. According to respondent No. 3 the position of the petitioner and his father was that of a licensee of the copyright for printing and publishing and that they were wrongly asserting that they were the sole owners and assignees of the copyright. Prayer was accordingly made that the entry in the copyright register in respect of the above works of Shri Maithili Sharan Gupta be expunged and the registration certificate issued to the petitioner and his father be cancelled and revoked.

(4) The application of respondent No. 3 was resisted by the petitioner and his father and they raised several preliminary objections to the maintainability of the application. It was averred on behalf of the petitioner and his father that the matters raised by respondent No. 3 were not covered by Sections 49 and .50 of the Act, and that even if they were so covered this was not a fit case in which the copyright Board should exercise its jurisdiction. Complicated questions were said to arise and according to the petitioner and his father these could more appropriately be decided by Civil Courts. Objection was also taken that the application was barred by time and that the mother of respondent No. 3 was a necessary party to the application. Plea was also taken during the hearing that as the application was presented before the Registrar of Copyrights and not before the. Copy- right Board there was no case for the Board to consider. The Copyright Board as per its order dated July 7, 1966, directed that the application should be treated as one under Section 50 of the Act. The contention that the Board could not entertain the application because it bore the heading "Before the Registrar of Copyrights" was repelled. Likewise, the plea taken on behalf of the petitioner and his father that the Board should not go into the matter as it involved question of title, did not find favor with the Board. The Board further held that the mother of respondent No. 3 was not a necessary party and that the application was not barred by time. Preliminary objections raised by the petitioner and his father were accordingly overruled and the case was ordered to proceed further

(5) The petitioner filed a revision petition against the above order of the Board but the same was dismissed by the Allahabad High Court on July 19, 1966, with the following observations : "CONSIDERINGan alternative remedy by way of appeal under Section 72 of the Copyright Act is available to the petitioner, no case for the exercise of revisional jurisdiction made out and revision is hereby dismissed summarily. Dated 19-7-66."

(6) The petitioner thereafter filed the present petition on August 25,1966.

(7) A preliminary objection has been raised on behalf of respondent No. 3' that the present petition is not maintainable in view of the dismissal of the revision petition of the petitioner by the Allahabad High Court on July 19, 1966. It has also been argued that it is the Allahabad High Court and not Delhi High Court which has territorial jurisdiction to deal with the matter. This stand has been controverter on behalf of the petitioner.

(8) We have heard Mr. Veda Vyasa on behalf of the petitioner and Mr. Aggarwal on behalf of respondent No. 3, and are of the opinion that in view of the order dated July 19, 1966, of the Allahabad High Court, this Court should decline to interfere with the impugned order on the writ side.

(9) Copyright Board is constituted under Section 11 of the Act according to which as soon as may be after the commencement of the Act, the Central Government shall constitute a Board to be called the Copyright Board which shall consist of the Chairman and not less than two nor more than eight other members. According to the proviso to sub-section (1) of Section 12 of the Act, the Copyright Board shall ordinarily hear any proceeding instituted before it under the Act within the zone in which, at the time of the institution of the proceeding, the person instituting the proceeding actually and voluntarily resides or carries on business or personally works for gain. The Explanation to the proviso makes it clear that "zone" means a zone specified in Section 15 of the States Reorganization Act, 1956. Section 50 of the Act reads as under : "50.The Copyright Board, on application of the Registrar of Copyrights or of any person aggrieved, shall order the rectification of the Register of Copyrights by (a) the making of any entry wrongly omitted to be made in the register, or (b) the expunging of any entry wrongly made in, or remaining on, the register, or (c) the correction of any error or defect in the register."

(10) According to sub-section (2) of Section 72 of the Act any person aggrieved by any final decision or order of the Copyright Board, not being a decision or order made in an appeal against the final decision or order of the Registrar of Copyrights may, within three months from the date of such decision or order, appeal to the High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on business or personally works for gain.

(11) The petitioner and respondents 3 and 4 are residents of District Jhansi in Uttar Pradesh. The copy of the impugned order shows that the hearing of the case, when the impugned order was made, took place in Agra in April, 1966. As the petitioner felt aggrieved with the impugned order, he filed a revision petition in Allahabad High Court and the same, as mentioned in Para- 26 of the writ petition, was dismissed by that Court with the observations reproduced earlier. The observations show that the Court went into the matter and came to the conclusion that it should not interfere with the impugned order as the petitioner had an alternative remedy by way of appeal under Section 72 of the Copyright Act. As the matter has already been dealt with by the Allahabad High Court and the Court has expressed the opinion that the impugned order should not be interfered with except in appeal under Section 72 of the Act, it would, in our opinion, be contrary to all notions of comity of Courts if this Court were to again deal with that matter. In case such a course is adopted, it may result in conflict of decisions of two Courts of competent jurisdiction. Such an eventuality cannot be viewed with equanimity and must be avoided at all costs. It would indeed result in abuse of the process of the Court. The petitioner, in our opinion, cannot be allowed to by-pass the order of Allahabad High Court by resort to these writ proceedings. In Chandi Prasad Chokhani v. State of Bihar, , S. K. Das, J., speaking for the Court, observed that save in exceptional and special circumstances the Court would not exercise its power under Article 136 in such a way as to by-pass the High Court and ignore the latter's decision which had become final and binding by entertaining an appeal directly from the order of the Board of Revenue. Such exercise of power, it was further observed, would be particularly inadvisable where the result may be a conflict of dicisions of two Courts of competent jurisdiction. A case much more to the point is that of Shanker Ramchandra Abhvankar v. Krishnaji Dattatraya Bapat, , The appellant in that case was the owner of a house, a part of which was occupied by the respondent as a tenant. The respondent was transferred to another town where he was allotted suitable residential accommodation. His son, however, stayed on in Poona as he was studying there. The appellant filed a suit under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (57 of 1947), for possession of the suit premises, inter alia, on the ground that the respondent had acquired suitable accommodation elsewhere. The position taken by the respondent was that his son was required to stay on in Poona and for that reason it could not be said that he had got a suitable residence at Wai. The trial Court held that only a part of the premises which were required by son should be vacated. Both the parties filed appeals. The appellate Court took the view that the Court was not empowered to bifurcate the premises. All the same it affirmed the decree of the trial Court as in its opinion the order made by that Court was equitable. The respondent preferred a revision petition under Section 115 of the Code of Civil Procedure to the High Court. The learned Single Judge, who heard the revision petition, dismissed it as he was not satisfied that the appellate Court had acted in the exercise of its jurisdiction illegally or with material irregularity. The respondent then moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate Court. A Division Bench of Bombay High Court held that in spite of the dismissal of the revision petition there could be interference under Articles 226 and 227 of the Constitution on a proper case being made out. After going into the merits the Bench came to the conclusion that the respondent had not acquired an alternative suitable residence. The orders of the Courts below were accordingly set aside. When the matter came up before the Supreme Court by special leave, Grover, J., speaking for the Court, dealt with the question as to whether the orders of the Courts below had merged in the order made by the High Court in revision and observed: "NOWwhen the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate, jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal."

(12) View was also expressed that the course followed by the High Court would lead to conflict of decisions of the same Court and it was observed : "EVENon the assumption that the order of the appellate Court had not merged in the order of the single judge who had disposed of the revision petiton we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of procedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions."

(13) The above observations, in our opinion, have a direct bearing on the present case.

(14) Mr. Veda Vyasa has argued that no revision petition under Section 115 of the Code of Civil Procedure was competent against the impugned order before the Allahabad High Court, Reference in this connection is made to the case of Mangat Rai and others v. Jullundur Improvement Trust and others, Air 1964 Punjab 455, wherein it is held that no revision under the above provision is maintained against an order of a Tribunal under the Punjab Town Improvement Act. It is further urged by Mr. Veda Vyasa that if the petitioner took a wrong or ill-advised step by filing such a petition, he cannot be debarred from seeking his remedy by means of a writ petition. In this respect we find that the provision of law under which the revision was filed in the Allahabad High Court has not been mentioned by the petitioner. It, therefore, cannot be said whether the revision petition was filed under Section 115 of the Code of Civil Procedure or whether Article 227 of the Constitution was also invoked Be that as it may, the Allahabad High Court dismissed the revision petition not on the ground that it was not maintainable but because it was of the view that the proper remedy of the petitioner was an appeal under Section 72 of the Act. As the said Court has gone into the matter, it would in our opinion, be inappropriate and not a sound exercise of discretion to deal with the same matter in this writ petition.

(15) In view of our above finding it is not necessary to go into the question of territorial jurisdiction of this Court. The writ petition consequently fails and is dismissed, but in the circumstances without costs.