Phonographic Performance Ltd. and Others Vs Union of India and Others

Rajiv Sahai Endlaw, J.@mdashBoth these intra-court appeals impugn the common judgment dated 9th 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-A -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-A -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stations / cities with respect to which they had subsequently been granted radio licenses nor amended the complaints originally made, to include the said stations / cities also therein.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 25th 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 there against.

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 25th 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 25th 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 25th 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 25th 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 and Others Vs. Jot Ram and Another, 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, , 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 and Others, 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 and Others Vs. UOI and Others--> 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 there against 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 25th 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 and Others, 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 Union of India Vs. Rajesh Damani, Proprietor, Allied General Sales Corporation, No. 31, Elakandappan Street, Chennai-3, Ram Sumer Puri Mahant Vs. State of U.P. and Others, , Jai Singh Vs. Union of India and Others, that there can be no parallel proceedings. The Supreme Court in Manish Goel Vs. Rohini Goel, 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 and Another Vs. Yogesh Mehra and Others, 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 (UOI) and Others, 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, .

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 and Others Vs. Bhajan Singh (Died) through LRs., , Ganeshprasad Badrinarayan Lahoti (D) by LRs. Vs. Sanjeevprasad Jamnaprasad Chourasiya and Another, and Pawan Kumar Gupta Vs. Rochiram Nagdeo, .

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.