Chelameswar, J.
Though, I agree with the conclusion 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 Page 46
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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 entrusts the authority to resolve the disputes falling within the jurisdiction conferred upon each of such bodies and brought before them. The jurisdiction is, normally, defined with reference either to; (1) the subject matter of the dispute and / or the pecuniary value of the dispute; or (2) the territorial nexus of either the parties to the dispute or the subject matter of the dispute to the Court or Tribunal.
4. In the context of Courts adjudicating civil disputes, the jurisdiction and powers necessary to effectively exercise the jurisdiction, such as, securing the presence of defendants / respondents or witnesses, granting of interim orders etc., and the method and manner of enforcement of a decision or a decree, are matters elaborately dealt by the Code of Civil Procedure. Similarly, the Code of Criminal Procedure contains provisions necessary for the exercise of the jurisdiction of the Criminal Courts. While the Code of Civil Procedure, Page 47
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under Section 151, recognises the existence of inherent powers in all Civil Courts, the Code of Criminal Procedure recognises all such inherent powers only in the High Court under Section 482.
5. Therefore, the jurisdiction and authority of not only the Tribunals, but also the Courts are structured by the statutory grants and limitations.
6. However, both the grant as well as the limitations could be either express or implied from the scheme of a particular enactment. The considerations relevant for ascertaining whether there is an implied grant of such powers, as can be culled out from the various Judgments relied upon by the learned counsel appearing in these matters, which have been taken note of by my learned brother Justice Kabir, appear to be; (1) need to preserve status quo with respect to the subject matter of the dispute in order to enable the party, which eventually succeeds in the litigation, to enjoy the fruits of the success; and (2) need to preserve the parties themselves a consideration, which weighed heavily with this Court in implying such powers in favour of the Magistrates while exercising the jurisdiction under Section 125 of the Code of Criminal Procedure.
7. The often stated principle that Courts would not, normally, grant a relief by way of an interim measure, which is either identical with or substantially the same as the final relief sought in the proceeding, is based on the ground that indiscriminate grant of such interim reliefs are capable of Page 48
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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 question whether the Copyright Board, exercising the jurisdiction under Section 31 of the Copyright Act, can grant ad hoc compulsory licence by an interim order pending the adjudication of the issue, is required to be examined.
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11. Copyright in a “work”, undoubtedly, is a valuable legal right subsisting in the “owner” or somebody claiming through the owner. Such a right has more than one dimension. It may have a commercial value depending upon the quality, nature and the public demand of the work. It may also have aesthetic value. Whether such a right should be transferred or not is a matter, essentially, for the “owner” of the copyright to determine. It is, further, the right of the owner to decide on what terms and conditions (which need not necessarily be related to money alone), he would part with the copyright of his work if ever he decides to part with it. However, Section 31 of the Copyright Act creates an exception to the abovementioned principle of the right of the owner of the copyright. In substance - the Section deprives the “copyright” of the “owner” against his volition. In other words, by Section 31, the State is authorised, by its coercive powers, to deprive the owner of his copyright in a work, which is his property and the right to enjoy such property in the manner as the owner of the property pleases. Necessarily, in view of the constitutional mandate under Article 300A, such a deprivation can only be by the authority of law and it is too well entrenched a principle on the constitutional law that such a law could be only for a public purpose.
12. The core of Section 31 is that the owner of a copyright has; (1) either refused to “republish” or “allow the republication” of his work or “refused to allow the performance in public” of the work; (2) by reason of such refusal Page 50
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the work is withheld from the public; and (3) the grounds for such refusal are not reasonable. It is in the abovementioned circumstances, if the Copyright Board is satisfied that the grounds of refusal are not reasonable, the Copyright Board is authorised, by law, to take steps for the grant of a compulsory licence.
13. As can be seen, the appellants are interested in the commercial exploitation of a work, of which they are not “owners” of the copyright. To succeed in their claim for a compulsory licence in their favour, they must, firstly, establish that “the work is withheld 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 Page 51
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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 than inadequacy of monetory compensation. The power under Section 31 to grant a compulsory licence meant for avoiding the withholding of the republication or refuse to allow the performance in pubic of some “work” - is, essentially, for the benefit of the public. Commercial benefit to “publisher” is incidental. Unless, it is demonstrated that failure to imply such power to direct immediate republication or performance of a work in public would be detrimental to public interest, the power to grant ad hoc compulsory licence, cannot be implied. No such detriment is demonstrated. In the absence of an express statutory grant, I would not imply the power to grant an ad hoc compulsory licence by way of interim order by the Copyright Board.
… J.
( J. CHELAMESWAR ) New Delhi; MAY 4, 2012.
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