Delhi High Court
Phonographic Performance Ltd & ... vs Union Of India & Ors on 8 April, 2015
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 8th April, 2015
+ LPA No.131/2015 & CM No.4150/2015 (stay)
PHONOGRAPHIC PERFORMANCE LTD & ORS. .. Appellants
Through: Mr. L. Nageswar Rao, Sr. Adv. with
Mr. Pragyan Pradeep Sharma, Mr.
Neeraj K. Gupta, Mr. Mayank Pandey
& Mr. Gaurav Chaudhary, Advs.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Sanjeev Narula, Adv. with Mr.
Ajay Kalra, Adv. for R-1&2.
AND
+ LPA No.133/2015 & CM No.4156/2015 (for stay)
PHONOGRAPHIC PERFORMANCE LTD & ORS.... Appellants
Through: Mr. Pragyan Pradeep Sharma with
Mr. Neeraj K. Gupta, Advs.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Ripu Daman Bhardwaj with Mr.
Raj Kumar Dahiya, Advs. for R-1.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. Both these intra-court appeals impugn the common judgment dated 9 th
January, 2015 of the learned Single Judge of this Court of dismissal of W.P.(C)
No.8144/2011 and W.P.(C) No.7724/2011 filed by the appellants respectively.
2. Having gone through the paper books, though voluminous, and having
prima facie not found any merit in the appeals, we heard the senior counsel for
the appellants at length on 10th March, 2015 when the appeals first came up
before us, and reserved judgment.
3. The controversy is in a narrow compass. The respondent no.3 in the two
appeals, namely Music Broadcast Pvt. Ltd. and Radio Mid Day West (India)
Limited, on 21st June, 2001 and 1st March, 2002 respectively, filed complaints
under Section 31(1)(b) of the Copyright Act, 1957 against the appellants and
seeking the relief inter alia of grant of compulsory license (hereinafter called
compulsory copyright licence) for the entire repertoire of the appellants for
communicating to the public via Radio FM Stations for which the respondent
no.3 in each of the appeals, then had been granted license to operate FM Radio
(hereinafter called radio licence). Vide interim orders dated 19th November,
2002 in each of the said complaints, the Copyright Board permitted each of the
respondents no.3 to broadcast the repertoire of the appellants and fixed the
interim rates which the said respondents no.3 were to pay to the appellants
therefor and vis-à-vis which interim arrangement made by the copyright Board,
the parties litigated till the Supreme Court. During the pendency of the said
proceedings, the respondent no.3 in both appeals were granted radio licenses to
run / operate Radio FM at other stations / cities also besides the stations / cities
qua which they were initially granted radio license and qua which they in their
complaints had sought compulsory copyright licence.
4. It is the contention of the appellants that the respondent no.3 in neither of
the appeal filed complaints under Section 31(1)(b) seeking the relief of
compulsory copyright license vis-à-vis stations / cities with respect to which
they had subsequently been granted radio licenses nor amended the complaints
originally made, to include the said stations / cities also therein.
5. The Copyright Board by its order dated 25 th August, 2010 directed the
Registrar of Copyrights (respondent no.2 in each of the appeals) to grant
compulsory copyright license to the respondent no.3 in each of the appeals in
relation to the works constituting the repertoire of the appellants and on the
terms and conditions specified in the said order.
6. It is the contention of the appellants that the said order of the Copyright
Board, being on the complaints with respect to specified radio stations / cities
with respect to which each of the respondent no.3 had initially been granted
radio license to operate FM Radio, is with respect to those stations / cities only
and not with respect to the stations / cities with respect to which the respondent
no.3 in each of the appeals had subsequently been granted radio license to run /
operate FM Radio.
7. The appellants preferred statutory appeals before the High Court of
Madras under Section 72(2) of the Copyright Act against the order dated 25th
August, 2010 of the Copyright Board. The said appeals are still pending. It is
the admitted position that the application of the appellants in the said appeals
for interim relief of stay of the order of the Copyright Board stand dismissed.
8. The Registrar of Copyrights however in pursuance to the aforesaid order
dated 25th August, 2010 of the Copyright Board, granted compulsory copyright
licence to the respondent no.3 in each of the appeals with respect to the
repertoire of the appellants, not only for the stations / cities with respect to
which the respondent no.3 in each of the appeals had originally been granted
radio license but also with respect to the stations / cities with respect to which
the respondent no.3 in each of the appeals had subsequently been granted radio
license. Challenging the action of the Registrar of Copyrights, of in pursuance /
compliance of the order dated 25th August, 2010 of the Copyright Board,
granting compulsory copyright license to the respondent no.3 in each of the
appeals also with respect to the stations / cities of which they had subsequently
been granted radio license to run / operate the FM Radio, the writ petitions from
which these appeals arise were filed.
9. It is on record that the appellants and the respondent no.3 in each of the
appeals respectively had entered into copyright license agreements for separate
radio stations / cities including the stations / cities for which the respondent
no.3 in each of the appeals had subsequently been granted radio license to run /
operate FM Radio and it was a term of each of the said copyright license
agreement that the tariff being paid thereunder was subject to adjustment as per
final order of the Copyright Board or in appeals thereagainst.
10. The learned Single Judge, vide the impugned judgment has dismissed the
writ petitions of the appellants holding that:-
(i) under Section 31 of the Copyright Act, compulsory copyright
license granted qua the repertoire is not limited to any particular
station / city;
(ii) the respondent no.3 in each of the appeals, while making complaint
/ application under Section 31(1)(b) of the Copyright Act had
sought compulsory copyright license for complete repertoire of the
appellants; the only reason for mentioning the stations / cities in
the said complaint / application was that the respondent no.3 in
each of the appeals were then operating Radio Stations in those
stations / cities only;
(iii) the Copyright Board in its order dated 25 th August, 2010 also had
not restricted the grant of compulsory copyright license to any
particular Radio Station / city;
(iv) under Section 72(1) of the Copyright Act, remedy of appeal to the
Copyright Board is available against the decision of the Registrar
of Copyrights; the appellants, if aggrieved from the action of the
Registrar of Copyrights of granting compulsory copyright license
also with respect to other stations / cities, ought to have filed
appeals before the Copyright Board or sought clarification from
the Copyright Board whether the order dated 25th August, 2010
was confined to any particular station / city; however the
appellants neither filed appeal nor sought clarification;
(v) the Copyright Board had passed a well reasoned order dated 25 th
August, 2010, after taking into consideration the universal factors
such as public interest and massive financial losses being suffered
by Radio Broadcasters along with the capacity of the radio
licensees to pay the royalty;
(vi) the Copyright Board has taken into consideration that survival and
growth of the Radio Broadcasters is essential for the society and
the same is in public interest;
(vii) the Copyright Board has determined royalty payable to all music
owners and not just the appellants, since Radio Stations do not play
music of the appellants alone; as other music companies are not
members of the appellants, it becomes imperative to formulate a
one stop window for payment and collection of royalties;
(viii) thus, the Copyright Board, with a view to arrive at a logical
scheme of tariff determination and implementation thereof has
fixed payment of royalty of 2% net advertisement earnings of each
FM Radio Stations / cities, which is to be proportionately
distributed between all the music providers;
(ix) during the trial before the Copyright Board spanning from 28th
July, 2009 to 12th July, 2010, in examination and cross-
examination of some of the witnesses all the Radio Stations / cities
are mentioned and royalty payment of each of the radio stations /
city is given; and,
(x) that from the factum of the copyright license agreements entered
into by the appellants and respondents no.3 with respect to other
stations / cities also being made subject to the outcome of the
proceedings before the Copyright Board, it was evident that the
understanding of the parties was that the final order in the said
proceedings would be adhered to and complied with by both the
parties.
11. The learned Single Judge while dismissing the writ petitions has also
clarified that the decision in the statutory appeals preferred by the appellants
and pending before the Madras High Court would be applicable qua the other
cities / stations also (we may record that the learned Single Judge, in paragraph
71 of the judgment has held that the respondent no.3 in each of the appeals has
not paid the prescribed fee for compulsory copyright license, though no
direction qua the same is given; the appellants while preferring the appeals
have not challenged the said finding / observation of the learned Single Judge
in paragraph 71 of the judgment).
12. The senior counsel for the appellants has contended:-
(a) that though the order dated 25th August, 2010 of the Copyright
Board is not with respect to any particular Radio Station / city but
since the complaint / application on which the said order has been
made is with respect to specified cities / stations, the same has to
be understood as confined to those stations / cities only and not
with respect to other cities / stations;
(b) that the cause of action for a complaint / application under Section
31(1)(b) is the refusal by the owner of the Copyright to allow
communication to the public of such work / sound recording on
terms which the complainant / applicant considers reasonable and
without each of the respondent no.3 pleading that it had called
upon the appellants to allow communication of the work in which
the appellants hold the repertoire and that the appellants had
refused permission or had demanded unreasonable terms, no order
directing grant of compulsory copyright license can be made;
(c) that the plea of the respondent no.3 in each of the appeals in the
complaints / applications filed before the Copyright Board was
with respect to the Radio Stations / cities for which they at the
time of making the complaint / application held radio license to
run / operate FM Radio and could not be with respect to Radio
Stations / cities for which the said respondent no.3 at the time of
making complaint / application did not even have radio license to
run / operate FM Radio;
(d) that now for the last nearly three years, there has been no
Chairperson of the Copyright Board and the Copyright Board has
been non-functional and thus the reason given by the learned
Single Judge of availability of alternative remedy before the
Copyright Board is incorrect;
(e) that the Registrar of Copyrights in its counter affidavit in the writ
petitions from which these appeals arise has not even given any
reason for also granting compulsory copyright license with respect
to the other cities / stations, though that was the only ground on
which the writ petitions were filed, in as much as other grievances
with respect to the order dated 25th August, 2010 are subject matter
of the statutory appeals before the Madras High Court;
(f) that the Copyright Board itself in para 25.9 of the order dated 25 th
August, 2010 has held that radio stations cater to a specific city
and the contents of the radio stations in different cities vary to
cater to the cultural diversities in each of the cities and that
advertising on Radio is also much more localized as compared to
television; therefrom it flows that the order for compulsory
copyright license has to be city / station specific and cannot be
with respect to the entire repertoire and the final direction of the
Copyright Board has to be construed only with respect to radio
stations / cities with respect to which the complaint / application
was made and not with respect to grant of compulsory license in
the entire repertoire of the appellants for communication thereof to
the public from all radio stations with respect to which the
respondent no.3 in each of the appeals may be having FM Radio
license; and,
(g) that the third phase of licensing for FM Radio stations is soon to
be opened and if the order of the learned Single Judge is allowed
to stand, the same would entitle the Registrar of Copyrights to, in
purported compliance of the order dated 25th August, 2010 of the
Copyright Board, also grant licenses to the respondent no.3 in each
of the appeals with respect to any other cities / radio stations with
respect to which the respondents no.3 may acquire license to run /
operate FM Radio.
13. We have given our thoughtful consideration to the contentions of the
learned senior counsel for the appellants. We had during the hearing enquired
whether the copies of the statutory appeals preferred against the order dated
25th August, 2010 of the Copyright Board and pending before the Madras High
Court and the order / judgment of refusal of interim stay therein are on record.
We were told that the same are not. We had further during the hearing enquired
whether the said statutory appeals were preferred before the filing of the writ
petitions from which these appeals arise or thereafter and were told that the
statutory appeals were preferred first.
14. We are of the view that the institution of the writ petitions from which
these appeals arise itself was misconceived once the order dated 25 th August,
2010 of the Copyright Board, in purported pursuance / compliance of which the
impugned compulsory copyright licenses were issued, was subject matter of the
statutory appeals. Section 72(2) confers a right on any person aggrieved by any
final decision or order of the Copyright Board, to appeal to the High Court. The
jurisdiction of the High Court in such appeals is not circumscribed to questions
or substantial questions of law or in any other manner. Thus the High Court, in
exercising appellate power under Section 72(2) of the Copyright Act, has
jurisdiction to go into the questions of fact as well as questions of law which
may be arising in the lis.
15. Though as a general principle the proposition canvassed by the senior
counsel for the appellants, that the relief granted in any proceeding is relatable
to the relief claimed, in as much as the Court or any other adjudicatory fora
cannot, except for reasons to be stated, grant relief beyond sought, cannot be
assailed but it is also the settled principle that the Court / adjudicatory fora,
except when their jurisdiction is circumscribed, are entitled to take note of
subsequent events. The principle of law is avoidance of litigation. Often, the
process of Courts / adjudicatory fora, entails delay in decision and subsequent
events in the interregnum between the institution and decision of the lis should
not ordinarily deprive a litigant of the benefits of the litigation. Else, an
unscrupulous litigant, by causing delay, would defeat the grant of relief against
him compelling the opposite party to commence a fresh round of litigation.
16. The Supreme Court in Rameshwar Vs. Jot Ram (1976) 1 SCC 194 held
that though in a perfect legal system a litigant should get justice when he asks
for it but human institutions of legal justice function slowly and the end product
comes considerably late. It was further held that though the Courts pronounce
upon the rights of parties as the facts stood when the Court was first
approached but the realism of our processual justice requires bending of
jurisprudence to mould and regulate the reliefs in the light of developments
having a material and equitable import occurring during the pendency of
litigation so that the Court does not stultify itself by granting what has become
meaningless and drive parties to fresh litigation whereas relief can be given
right there. It was yet further held that where a new form of relief will be more
efficacious on account of developments subsequent to the institution of the
proceedings, it is but fair that the relief is moulded and re-shaped in the light of
updated facts. The primary concern of the Court was held to be, to implement
the justice of the legislation.
17. The order dated 25th August, 2010 of the Copyright Board, besides on the
complaints / applications of the respondent no.3 in each of the appeals, is also
on two complaints / applications of M/s. Entertainment Network (India) Ltd.,
Puran Multimedia Pvt. Ltd., Synergy Music Entertainment Ltd. and Rajasthan
Patrika Pvt. Ltd. The said order is thus not with reference to any specific city /
station. Similarly, in the relief paragraph of the said order, direction for grant of
compulsory copyright license for communicating the work recorded in sound
recordings in the repertoire, present and future of the appellants to the public by
broadcast, on revenue sharing basis and on other terms and conditions
prescribed therein, have been given and which inter alia is at 2% of the net
advertisement earnings of each FM Radio Station.
18. The questions which arise are, (i) whether the said directions of the
Copyright Board are to be confined only to radio stations / cities mentioned in
the complaints / applications or also to other radio stations / cities qua which
the complainants / applicants may have during the pendency of the proceedings
acquired license to run / operate FM Radio or to which the complainant /
applicants may in future acquire license to run / operate FM Radio; and, (ii)
whether the Copyright Board was seized of the events subsequent to the filing
of the complaint / application of the respondent no.3 in each of the appeals
having acquired radio license to run / operate FM Radio with respect to other
cities / stations also.
19. The adjudication of the said questions would necessarily entail
interpretation of the order of the Copyright Board and a look into the
proceedings before the Copyright Board, to gauge whether the Copyright Board
was seized of the said subsequent events.
20. However the Madras High Court in the statutory appeals already
preferred by the appellants before the time of filing of the writ petitions from
which these appeals arise, is already exercising jurisdiction over the same order
of the Copyright Board.
21. The principle of comity between the High Courts requires that once one
High Court is in seisin over a subject matter, the other High Court, particularly
in exercise of jurisdiction under Article 226 of the Constitution of India, should
refrain from taking cognizance of the same.
22. The Supreme Court in Kartar Singh Vs. State of Punjab (1994) 3 SCC
569, dealing with the question, of the High Court in exercise of powers under
Article 226 of the Constitution entertaining petitions against the orders of the
designated Court under the Terrorist and Disruptive Activities (Prevention)
Act, 1987 and against which orders appeal to the Supreme Court were
provided, held that judicial discipline and comity of Courts requires that High
Courts should refrain from exercising their jurisdiction since the Supreme
Court had jurisdiction. A Division Bench of the High Court of Calcutta in
Hindustan Development Corporation Vs. Modiluft Limited
MANU/WB/0232/2005 also held that if the subject matter in issue in a
proceeding before the Delhi High Court was the same as the proceeding before
the Calcutta High Court, then propriety demanded that the proceeding before
the Delhi High Court be disposed of first. Similarly a Single Judge of this High
Court also in Shantanu Kumar Vs. Union of India MANU/DE/1167/2013
refrained himself from dealing with a question which was also pending
consideration before the Division Bench.
23. Of course, upon our putting so to the senior counsel for the appellants he
contends that the High Court of Madras is not concerned with the said aspect
and is concerned only with the rate of revenue sharing between the respondent
no.3 in each of the appeals and the appellants. However in the absence of the
copies of the appeal or the orders of dismissal of interim relief in the said
appeal we are unable to comment thereon.
24. In our view however the question is not whether the appellants, in the
statutory appeals preferred by them before the Madras High Court, have raised
the said aspect or not. The question is, whether the appellants in the said
appeals could have raised the said aspect. If the appellants could have, then the
doctrine aforesaid of comity of High Courts will come into play. Even
otherwise, a litigant cannot be permitted to bifurcate / dissect the order and
choose to take one challenge thereagainst before one High Court and another
challenge against the same before another High Court. The appellants, in the
list of dates appended to these appeals, have stated that the Registrar of
Copyrights in pursuance to the order dated 25 th August, 2010 of the Copyright
Board granted the impugned compulsory copyright licenses on 3rd September,
2010 and 16th September, 2010 respectively. The time provided for preferring
an appeal under Section 72(2) is of three months. We do not know whether the
statutory appeals before the Madras High Court were preferred before the grant
of impugned licenses or after. However even if the said appeals were preferred
before the grant of the impugned licenses and by which date it can be said that
the appellants did not have the occasion to take the ground of the order dated
25th August, 2010 being capable of interpreted as done by the Registrar of
Copyrights, the appellants could have definitely after the grant of impugned
licenses sought permission of the Madras High Court to urge additional ground
in the appeal. In view of the unlimited jurisdiction of the High Court in
exercising such appellate power under Section 72(2) of the Copyright Act, we
have no doubt whatsoever that the grievance as urged by the appellants in the
writ petitions from which these appeals arise before us can be the subject matter
of the said appeals also.
25. The High Court of Bombay in Shri Dilipkumar Hirachand Jain Vs.
Dena Bank MANU/MH/1421/2013 held that a judgment and decree cannot be
segregated or bifurcated into parts in order to enable the petitioner to challenge
one part at one point of time and another part thereafter. It has been held in C.
Adhimoolam Vs. Registrar, CESTAT MANU/TN/3058/2013, Union of India
owning Southern Railway Vs. Rajesh Damani MANU/TN/1527/2012, Ram
Sumer Puri Mahant Vs. State of U.P. (1985) 1 SCC 427, Jai Singh Vs. Union
of India (1977) 1 SCC 1 that there can be no parallel proceedings. The
Supreme Court in Manish Goel Vs. Rohini Goel (2010) 4 SCC 393 went to the
extent of holding that the practice of approaching different forums amounts to
abuse of process of Court and that no litigant has the right to unlimited drought
on the Court time and public money in order to get his affairs settled in the
manner he wishes. It was held that access to justice should not be misused.
Similarly in Dr. Aloys Wobben Vs. Yogesh Mehra AIR 2014 SCC Online SC
484 it was held that though the parties may be entitled to approach different
fora but if the disputation is of the same nature and between the same parties, it
is convenient to resolve the same before a single adjudicatory authority.
26. A five Judges Bench of this Court in Sterling Agro Industries Ltd.
Vs. Union of India AIR 2011 Del 174 has held that while entertaining a writ
petition, the doctrine of forum conveniens and the nature of cause of action
are required to be scrutinized by the High Court depending upon the factual
matrix of each case. Applying the said principle also the Madras High Court
before which a statutory appeal had been preferred prior to the institution of
the writ petitions from which these appeals arise would be the most
appropriate High Court to deal with the contentions raised in the said writ
petitions also.
27. There is another aspect; since the order dated 25th August, 2010 of the
Copyright Board was not confined to the radio stations qua which the
respondents no.3 had filed complaints and further since the Registrar of
Copyrights being the implementing agency of the said order was interpreting it
to be with respect also to the radio stations / cities with respect to which the
respondent no.3 had subsequently been granted radio licenses, it was open to
the appellant to (in the statutory appeal) challenge the order on the said grounds
also. Once it has been held that the remedy of statutory appeal was available to
the appellants, the writ petitions even otherwise would not be maintainable.
Reference if any can be made to our judgment in Bela Rani Bhattcharyya Vs.
Union of India 212 (2014) DLT 1.
28. We thus hold the writ petitions from which these appeals arise, to be not
maintainable.
29. Once we hold so, the findings / observations of the learned Single Judge
would be of no avail. It is a settled principle of law that any findings on merits
in a proceeding which is ultimately dismissed on the ground of being not
maintainable, do not constitute res judicata. Reference in this regard can be
made to Karnail Singh Vs. Bhajan Singh AIR 2005 P&H 207, Ganeshprasad
Badrinarayan Lahoti Vs. Sanjeevprasad Jamnaprasad Chourasiya (2004) 7
SCC 482 and Pawan Kumar Gupta Vs. Rochiram Nagdeo (1999) 4 SCC 243.
30. What we also find is that the learned Single Judge has not only returned
findings on the aspect whether the order of the Copyright Board was confined
to a particular city or not but also on the merits of the said order in so far as
fixes the tariff / formula for revenue sharing and which was clearly beyond the
scope of the petition.
31. Though the counsel for the respondent no.1 appears on advance notice
but the respondent no.3 in each appeal is unrepresented. In the absence of the
respondent no.3, we cannot set aside the said findings.
32. Hence, issue notice of these appeals limited to the said aspect to the
respondent no.3 as well as respondent no.2 Registrar of Copyrights in each of
the appeals, also through the counsels who had appeared before the learned
Single Judge, returnable on 9th April, 2015.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE
APRIL 08, 2015
'pp'
