TaxTMI 
TaxTMI 
2008 (5) TMI 671
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....er. Background Facts 4. First respondent is one of the leading music companies engaged in the production and/or acquisition of rights in sound recordings. It has copyright over a series of cassettes and CDs commonly known as T-series. It has copyrights in cinematographic films and sound recordings. Appellant M/s. Entertainment Network (India) Ltd. (ENIL) broadcasts under the brand name "Radio Mirchi". It is a leading FM radio broadcaster. Disputes and differences arose between Bennett Coleman and Co. Ltd., the holding company of the first respondent and Phonographic Performance Ltd. (PPL) as regards the playing of the songs of which copyrights belongs to the first respondent in their FM radio network. Appellant is a company which holds licence for running FM radio stations in various cities across India. 5. Free-to-Air private FM Radio Broadcasting is a recent phenomenon in India and the basic content of any radio station, presently, is only sound recordings, i.e., songs. 6. Disputes and differences having arisen between the parties in regard to broadcast of the songs in respect whereof the first respondent holds a copyright as owner thereof or by reason of purchase of ....
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....the Sound Recordings of Super Cassettes clients through its Radio Station without a valid licence and payment of royalty (the terms of which can be mutually arrived at), and d) pay a sum of Rs. 50,00,000.00 (Fifty lacs only) as liquidated damages, for the illegal broadcast and acts of infringements committed by it, to Super Cassettes within 15 days of receipt hereof under intimation to Super Cassettes failing which Super Cassettes have positive instruction of its clients to initiate such legal actions both Civil and/or Criminal against you, your directors, and all other persons responsible for the said infringement without any further notice and in that case you shall be further liable for all cost and consequences thereof which may please be noted very carefully". 10. In response to the said notice, ENIL stated: "2. Since our clients intend to negotiate with your clients, as was our clients intention from the beginning we have approached your clients and have offered payment of royalty, the price of which will be mutually convenient to both the parties. 3. It is our clients' contention that music is for general benefit of society at large. Our cli....
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....preciate if you kindly confirm to us the centres where you will be setting up your F.M. Broadcasting stations/transmitters, and the estimated date/month from which the said stations/transmitters will start operations. On receipt of this information, we shall send you the licence application form and the tariff details." 13. It, however, appears that several broadcasters including ENIL by a letter dated 17.4.2001 addressed to PPL stated as under: "We acknowledge that you are constituted as the body legally empowered to represent the interests of the owners of music copyrights around the world when performances take place in India. We are, therefore, approaching you to discuss arrangements for the provisions of licensing the broadcast of copyrighted music on our new stations. We want to begin discussions immediately, since at least some of our stations are all but ready to begin broadcasts now. We can begin with the agreement that owners of copyrights deserve to be compensated for the use of their music on radio stations. Radio stations play copyrighted music because of its popularity because the music helps build the audience that the stations ....
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....egotiate with the respondent from the very beginning. Proceedings Before The Copyright Board - First Licence Case 17. Various Radio Stations including the petitioner filed an application before the Copyright Board at Hyderabad in terms of Section 31(1)(b) of the Act on or about 19.11.2002 for grant of compulsory license to all the radio stations. 18. The Copyright Board by a judgment and order dated 19.11.2002 fixed the standard rate of: * Payment to be made at Rs. 1200/needle hour during prime time. * For 12 normal hours = 60% of standard rate * For 8 lean (night) hours = 25% of standard rate and respondents also directed to furnish a security/bank guarantee of Rs. 20,00,000/- per radio station to PPL. 19. The Board also held that the same shall be operative for a period of 2 years and the matter shall be reconsidered again in September-October, 2004. Super Cassettes was not a party therein. The Board fixed royalties initially for a period of two years. An appeal thereagainst was preferred before Bombay High Court and it is the subject matter of C.A. No. 5181 of 2005. 20. Appeals were filed before the Bombay High Court by the radio comp....
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....rked as RFA No. 848 of 2003. By reason of the impugned judgment dated 30.6.2004, the respondent's appeal has been allowed remitting the matter back to the Copyright Board to reconsider the application of the appellant for grant of compulsory license under Section 31 of the Act after giving adequate opportunity to the parties to adduce evidence and to dispose of the same by a reasoned order. The High Court furthermore directed that the appellant must file an undertaking that it would not broadcast the sound recordings of the respondent. Appellant had filed Petition for Special Leave to Appeal giving rise to Civil Appeal No. 5114 of 2005 in this Court. Proceeding Before Us 26. We have two judgments before us; one from the Bombay High Court and another from the Delhi High Court. Whereas the Bombay High Court opined that in terms of Section 31 of the Act, grant of compulsory license on reasonable remuneration is permissible; the Delhi High Court held otherwise. 27. Both the parties have preferred these appeals before us, the particulars whereof are as under: Case No. Parties 1. C.A. No. 5114/05 ENIL vs. SCIL 2. C.A. No. 5178-80/05 PPL vs. ....
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....t alone; the sound recording being a part of it. and in that view of the matter, the finding of the High Court that clause (b) cannot apply so long as somebody has allowed to broadcast it to the public is not correct. (viii) Properly construed, an owner of a copyright cannot make any discrimination between one broadcaster and another and what can be demanded is equitable remuneration for grant of broadcasting right, as a refusal to grant such a licence may even hit the Government owned free to air channels, which would be manifestly opposed to public interest. (ix) The Copyright Board not only have the requisite jurisdiction to grant a compulsory licence but also determine the quantum of remuneration payable to him for grant of such licence. (x) Subject of course to protection of the commercial rights of the owner of the sound recording, no owner of a copyright can refuse to allow broadcast of a sound recording, merely on the ground that the same may affect the profit of the owner inasmuch as the public interest in this behalf is paramount. (xi) Section 31(1) must be construed having regard to the fact that India is a signatory to various Interna....
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....ide whether the term of copyright or any work is shorter in any other country than that under the Act (Section 6); (c) To settle disputes arising in respect of assignment of copyright (Section 19A); (d) To settle disputes arising in respect of a voluntary license issued under Section 30 of the Act (Section 30A); (e) To grant compulsory licenses in respect of Indian works withheld from the public (Section 31); (f) To grant a compulsory license to public unpublished Indian works (Section 31A); (g) To grant a compulsory license to produce and publish translation of literary and dramatic works (Section 32); (h) To grant a compulsory license to reproduce and publish certain categories of liberary, scientific or artistic works for certain purposes (Section 32A); (i) To rectify the register of copyright on an application of the Registrar of Copyrights or any other person aggrieved (Section 50); (j) To hear appeals from any decision or whatever the decision of the Registrar of Copyright [Section 72]. (v) Section 31 of the Act must be given its literal meaning, which would mean that the Board can exercise its j....
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.... having used different words 'compensation' and 'royalty', Section 3 signifies a lump sum amount to be paid to bring back the work into the pubic domain. It also goes to show that it is a one time exercise. 30. Core Issues The core questions which, therefore, arise for consideration in these appeals are: (i) Whether the Copyright Board has jurisdiction under Section 31 (1)(b) of the Copyright Act, 1957 to direct the owner of a copyright in any Indian work or a registered copyright society to issue compulsory licences to broadcast such as works, where such work is available to the public through radio broadcast? (ii) Whether in any event such a compulsory license can be issued to more than one complainant in the light of Section 31(2)? (iii) What would be the relevant considerations which the Copyright Board must keep in view while deciding on; (a) Whether to issue a compulsory license to a particular person; and (b) The terms on which the compulsory license may be issued, including the compensation? Statutory Provisions 31. In view of the fact that interpretation of Section 31 of the Act would depend upon the Scheme of....
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....dia; or (iii) the author of which, in the case of an unpublished work, is, at the time of the making of the work, a citizen of India. 35. Section 2(m) defines 'infringing copy' to mean (i) in relation to a lilterary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film; (ii) in relation to a cinematograph film, a copy of the film made on any medium by any means; (iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means; (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of the Act. Section 2(xx) defines 'sound recording' to mean a record of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. Section 2(y) defines 'work' to mean any of the following works, name....
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.... a cinematograph film made, for valuable consideration, at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein." 40. Sections 18 and 19 relate to assignment of copyright and mode of assignment respectively. Section 19 deals with disputes with respect to assignment of copyright. Section 27 provides for the term of copyright in sound recording in the following terms: "27. Term of copyright in sound recording.- In the case of a sound recording, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the sound recording is published. 41. However, only because the term for holding copyright under the said provisions are different, the same would not mean that the right of the copyright owner in sound recording is somewhat inferior. Chapter VI of the Act deals with licences. 42. Section 30 provides for the licences by owners of copyright. It, in other words, deals with a situation where licence is granted on a voluntary basis. Section 30A provides for application of Sections 19 and 19A. Section 31A provides for compu....
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....nner detrimental to the interests of the owners of rights concerned, cancel the registration of such society after such inquiry as may be prescribed." 44. Registration of such copyright society is mandatory in character. Sub-Section (2) of Section 33 provides for that any association of persons who fulfils such conditions as may be prescribed may apply for permission to do the business specified in sub-Section (1) to the Registrar of Copyrights who shall submit the application to the Central Government. Sub-Section (3) of Section 33 empowers the Central Government to grant a licence having regard to the interest of the authors and other owners of rights under the Act, the interest and convenience of the public and in particular of the groups of persons who are most likely to seek licenses in respect of the relevant rights and the ability and professional competence of the applicants, register such association. Section 34 provides for administration of rights of owner by copyright society. The proviso appended thereto prohibit any discrimination in regard to the terms of licence or the distribution of fees collected between rights in Indian and other works. The concept of copyrig....
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....his Act- (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or (b) when any person- (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or (iv) imports into India, any infringing copies of the work: Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer. Explanation.- For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an....
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....public." Rules 48. Section 78 of the Act provides for power to make rules. The Central Government in exercise of the said power framed rules known as "The Copyright Rules, 1958" (for short "the Rules"). Chapter V of the Rules deals with the provisions relating to Cooperative Societies. Relevant clauses of which are quoted hereinbelow: "12. Conditions for submission of applications for registration of copyright societies. (1) Any association of persons, whether incorporated or not, comprising seven or more owners of copyright (hereinafter referred to as "the applicant") formed for the purpose of carrying on the business of issuing or granting licences in respect of any class of works in which copyright subsists or in respect of any other right conferred by the Act may file with the Registrar of Copyrights an application in Form II-C for submission to the Central Government for grant of permission to carry on such business and for its registration as a copyright society. (2) An application under sub-rule (1) shall be signed by all the members of the governing body (by whatever name called) and the chief executive of the applicant (who need no....
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.... per copy of the work. 10. Rate of royalty, which the applicant considers reasonable, to be paid to the copyright owner. 11. Means of the applicant for payment of the royalty. 12. Whether the prescribed fee has been paid and, if so, particulars of payment (give Postal Order/Bank Draft/Treasury Challan number). 13. (a) Full name, address and nationality of the person competent to issue a licence. (b) Whether the applicant after due diligence on his part was unable to find the owner. (c) Whether the applicant has requested and had been denied authorisation by the said person to produce and publish the translation or reproduce the work or publish the unpublished work. (d) If the applicant was unable to find the owner, whether he had sent a copy of the request by registered air mail post to the publisher whose name appears on the work. If so, the date on which the copy was sent." Conventions 50. Before we embark upon respective contentions of the parties, we may notice some International Conventions to which India is a signatory. The Central Government issued the International Copyright order by a notification publish....
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....nce by any means or process; (ii) any communication to the public of the performance of their works. (2) Authors of dramatic or dramatico-musical works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof. "Article 11-. (1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing: (i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images; (ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one; (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work. (2) It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not ....
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....or's work by others. It is the long period which encourages the authors to create works of literature, music and art. 54. In Gramophone Company of India Ltd. v. D.B. Pandey [(1984) 2 SCC 534 at 549, this Court held: "An artistic, literary or musical work is the brain-child of an author, the fruit of his labour and, so, considered to be his property. So highly is it prized by all civilized nations that it is thought worthy of protection by national laws and international conventions relating to copyright." 55. In Copinger and Skone James on Copyright (15th Ed. 2005, para 2-05, page 27, Vol. 1), it is stated: "Finally, it is considered a social requirement in the public interest that authors and other rights owners should be encouraged to publish their work so as to permit the widest possible dissemination of works to the public at large. These four fundamental principles are cumulative and inter-dependent and are applied in the justification of copyright in all countries, although different countries give varying emphasis to each of them. To generalize, it is true to say that in the development of modern copyright laws, the economic and social arguments a....
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....ire life time of the author but also until 60 years from the beginning of the calendar year next following the year in which the author dies, the term of copyright in sound recording subsists only for 60 years, but as indicated hereinbefore, the same would not mean that the right of an owner of sound recording is in any way inferior to that of right of an owner of copyright on original literary work etc. Chapter VI deals with licence. The statutory licences are required to be granted having regard to the various factors stated therein. 60. Section 33 is a special provision which provides for registration of a copyright society. 61. It may, however, be necessary to consider that unlike other countries the broadcasting rights by themselves were introduced in India for the first time by inserting Section 37 in the year 1994. It is true that the rights of free-to-air broadcasters have not been dealt with in a specific legislation unlike some other jurisdiction. It may, however, be of some importance to note that Chapter VII deals with Copyright society, the concept whereof was incorporated in the Act so as to enable an author to commercially exploit his intellectual prop....
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.... - Swimming Pools. 63. The right of the author of a copyright vis-'-vis the Society, thus, may be exercised in almost all walks of life from the 'Radio Stations' to a small 'Hairdressing Salon'. 64. If the right of an author/society is so pervasive, is it necessary to construe the provisions under Section 31 of the Act having regard to the International Covenants and the laws operating in the other countries? 65. The answer to the said question must be rendered in affirmative. Interpretation of a statute cannot remain static. Different canons and principles are to be applied having regard to the purport and object of the Act. What is essential therefor is to see that the expanding area in which the copyright will have a role to play is covered. While India is a signatory to the International Covenants, the law should have been amended in terms thereof. Only because laws have not been amended, the same would not by itself mean that the purport and object of the Act would be allowed to be defeated. If the ground realities changed, the interpretation should also change. Ground realities would not only depend upon the new situations and changes in the socie....
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....pecies (CITES) and applied the principles of purposive constructions as also not only the Directive Principles as contained in Part IV of the Constitution but also Fundamental Duties as contained in Part IVA thereof. 72. Referring to Motor General Traders and Anr. v. State of Andhra Pradesh and Ors. (1984) 1 SCC 222, Rattan Arya and Ors. v. State of Tamil Nadu and Anr. (1986) 3 SCC 385 and Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and Ors. (1990) 1 SCC 109, this Court held: "There cannot be any doubt whatsoever that a law which was at one point of time was constitutional may be rendered unconstitutional because of passage of time. We may note that apart from the decisions cited by Mr. Sanghi, recently a similar view has been taken in Kapila Hingorani v. State of Bihar (supra) and John Vallamattom and Anr. v. Union of India(supra)." 73. These judgments were referred to in the decision of Liverpool and London S.P. and I Asson. Ltd. v. M.V. Sea Success I and Anr. [(2004) 9 SCC 512], wherein this court observed that as no statutory law in India operated in the field, interpretative changes, if any, must, thus be made having regard to the ever changing globa....
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....cisions in PUCL v. Union of India, [(1997) 3 SCC 433], John Vallamattom v. Union of India, [(2003) 6 SCC 611], Madhu Kishwar v. State of Bihar [(1996) 5 SCC 125], Kubic Darusz v. Union of India, [(1990) 1 SCC 568], Chameli Singh v. State of U.P., [(1996) 2 SCC 549], C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, [(1996) 8 SCC 525], Apparel Export Promotion Council v. A.K. Chopra, [(1999) 1 SCC 759], Kapila Hingorani vs. State of Bihar [(2003) 6 SCC 1], State of Punjab and Anr. vs. M/s. Devans Modern Breweries and Anr. [2003 (10) SCALE 202] and Liverpool and London S.P. and I Asson. Ltd. vs. M.V. Sea Success I [2003 (10) SCALE 1]. 80. Furthermore, as regards the question where the protection of human rights, environment, ecology and other second-generation or third-generation rights is involved, the courts should not be loathe to refer to the International Conventions. Law in Other Countries 81. Reference to laws to other jurisdictions stricto sensu may not be apposite, where the scheme of the Act/Statute is different. Where the statute is differently worded, same or similar interpretation may not be possible. 82. We have noticed the laws operating in o....
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....ns. 82. Whereas the Act provides for exclusive rights in favour of owners of the copyright, there are provisions where it has been recognized that public has also substantial interest in the availability of the works. The provisions relating to grant of compulsory license must be viewed having regard to the aforementioned competing rights wherefor an appropriate balance has to be stuck. For the said purpose, we may notice the broad features of the Act. 86. Section 16 of the Act provides that no person shall be entitled to copyright otherwise than under and in accordance with the provisions of the Act. Section 14 defines the expression "copyright" to mean the exclusive right to do or authorize the doing of specific things in respect of a work, as detailed in that section. 87. The primary method that an owner of copyright employs to exploit the copyright and to make this work available to the public is through the vehicle of voluntary licenses in terms of Section 30 of the Act. 88. The freedom to contract is the foundation of economic activity and an essential aspect of several Constitutional rights including the freedom to carry on trade or business guaranteed under Arti....
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.... may issue voluntary licenses under Section 30, collect fees in pursuance of such licenses, distribute such fees amongst owners of rights, and perform any other functions consistent with the collective control of the owners whose rights it administers. 92. The Copyright Society is required to frame a scheme to determine the quantum of remuneration payable to individual copyright owners having regard to the number of copies of the work in circulation. [Section 34A(2)] 93. Chapter V of the Copyright Rules, 1958 makes detailed provisions with respect to the conduct of business by Copyright Societies. Rule 14J requires that a Copyright Society shall frame a scheme of tariff to be called a "Tariff Scheme" setting out the nature and quantum of fees or royalties which it proposes to collect in respect of such copyright or other rights administered by it. Rule 14K requires a Copyright Society to frame a "Distribution Scheme" setting out the procedure for collection and distribution of royalty specified in the Tariff Scheme among the owners of copyright. Any distribution under the Distribution Scheme is required to be in the proportion to the income of the Copyright Society from actua....
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....work or for publication of an unpublished work, then the Copyright Board make grant the compulsory license to such one of the applicants, as in the opinion of the Board, would best serve the interest of the general public. Chapter VI relate to grant of licence, which can be divided into two parts; licences by owners of copyright and compulsory licenses. Compulsory licences can be granted by the Copyright Board subject to the limitations contained therein. It cannot be said to be an exception to the general rule in the strict sense of the term as the provisions relating to grant of license by owners of Copyright and compulsory licenses operate in different fields. It may be true that while passing an order for grant of compulsory licenses, the relevant factors as laid down therein must be kept in mind which would include the right of the owner of the copyright as a part of the right of property, but where a statute is to be construed as a balancing statute, the situation may be different. Construction of Section 31 of the Act 101. The broad requirements of Section 31 are as under: "(a) The subject work must be an Indian work whose term of copyright is subsisting; ....
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....rant of license, the same may not have anything to do with any term or condition which is wholly alien or foreign therefor. An unreasonable demand if acceded to, becomes an unconstitutional contract which for all intent and purport may amount to refusal to allow communication to the public work recorded in sound recording. A de jure offer may not be a de facto offer. 106. Although the term 'work' has been used both in clauses (a) and (b) of sub-Section (1) of Section 31, the same has been used for different purpose. The said term 'work' has been defined in Section 2(y) in different contexts. It enumerates the works which are: (a) a literary, dramatic, musical or artistic work; (b) a cinematograph film; (iii) a sound recording. Thus, a literary work ex facie may not have anything to do with sound recording. 107. There are indications in the Act particularly having regard to Sections 14(1)(a) and 14(1)(e) thereof that they are meant to operate in different fields. They in fact do not appear to be operating in the same field. Clause (a) refers to publication or republication of the work. It may be in print media or other medias. Clause (b), however, refers to bro....
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....erms would amount to refusal. It is in that sense the expression 'has refused' cannot be given a meaning of outright rejection or denial by the copyright owner. 111. PPL and SCIL might have been called upon the broadcasters to enter into licenses and were willing to license their repertoire. But their contention was that if such terms are unreasonable, it amounted to refusal which would attract Section 31 of the Act. The word 'communicate the work to the public by broadcast" is of significance. It provides for a mode of communication. Thus, only because a Registrar of a Copyright would be directed to grant a licence to communicate the work to the public by broadcast would not mean that only a single licence shall be granted. The Board acting as a statutory authority can exercise its power from time to time. It is therefore not correct to contend that having regard to the provisions of sub-section (2) of Section 31, compulsory licence can be granted only to one and not to more than one broadcaster. We would deal with this provision at some details a little later. In response to a query as to whether when an application for compulsory licence is filed any publication t....
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.... subject to compliance of the other directions. Right to Property - Is the Concept Applicable 116. An owner of a copyright indisputably has a right akin to the right of property. It is also a human right. Now, human rights have started gaining a multifaceted approach. Property rights vis-'-vis individuals are also incorporated within the 'multiversity' of human rights. As, for example, any claim of adverse possession has to be read in consonance with human rights. The activist approach of the European Court of Human Rights is quite visible from the judgment of Beaulane properties Ltd. v. Palmer [2005 EWHC 817(Ch.)] and J. A. Pye (Oxford) Ltd. v. Graham [(2002) 3 ALL ER 865]. 117. This Court recognized need of incorporating the same principle for invoking the rule of strict construction in such matters in P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. [(2007) 6 SCC 59] stating: " Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Intention to possess can not be substituted fo....
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....ng in view the fact that if it is a statutory grant; it is a case of statutory licence. We are not unmindful of the fact in cases of other statutory licenses, the word 'royalty' has been used. Even the word 'usually' has been used. Mr. Divan himself has referred to Rule 11A and Form IIA appended to the Rules of 1958. Clauses (10) and (11) of the Form which have validly been made used the word 'royalty. "10. Rate of royalty, which the applicant considers reasonable, to be paid to the copyright owner. 11. Means of the applicant for payment of the royalty" 125. The legislature therefore for all intent and purport equates 'compensation' with 'royalty'. In the context of the Act, royalty is a genus and compensation is a species. Where a licence has to be granted, it has to be for a period. A 'compensation' may be paid by way of annuity. A 'compensation' may be held to be payable on a periodical basis, as apart from the compensation, other terms and conditions can also be imposed. The compensation must be directed to be paid with certain other terms and conditions which may be imposed. Marginal Note 126. It wa....
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.... 556, (2008) 3 SCC 279], this court opined: "With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/ author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd. (supra)." 132. Barak in his exhaustive work on 'Purposive Construction' explains various meanings attributed to the term 'purpose'. It would be in the fitness of discussion to refer to Purposive Construction in Barak's words: "Hart and Sachs also appear to treat 'purpose' as a subjective concept. I say 'appear' because, although Hart and Sachs claim that the interpreter should imagi....
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....Mr. Divan relied on Indian Administrative Services (SCS) Association, U.P. and ORS. v. Union of India and ORS. [1993 Supp. (1) SCC 730] wherein it has been held that: "9. Thus it is settled law that where the intention of statutory amendment is clear and expressive, words cannot be interpolated. In the first place they are not, in the case, needed. If they should be added, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the legislature intended to convey. Where the meaning of the statute is clear and sensible, either with or without omitting the words or adding one, interpolation is improper, since the primary purpose of the legislative intent is what the statute says to be so. If the language is plain, clear and explicit, it must be given effect and the question of interpretation does not arise. If found ambiguous or unintended, the court can at best iron out the creases. Any wrong order or defective legislation cannot be righted merely because it is wrong. At best the court can quash it, if it violates the fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundament....
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....e Ltd. vs. Maitra [(1998) Fleet Street Reports 749 at 770-773]. The general principle of grant of injunction came up for consideration before the Court of Appeal. Therein, it was held that an owner may exercise and exploit his proprietary right by licensing some and not others. He may charge whatever he wishes. Such is not the position in India. Therein, the defendant did not take part in the proceedings. It was, inter alia, from that angle, held that the court could still exercise discretion. The court of appeal held: "Use of an injunction by PPL to obtain money to obtain money to which they are not entitled would be an abuse, but there is no evidence that that ever occurs. Where unauthorized use of PPL's copyright is taking place, we do not believe it is an abuse to refuse to licence that copyright without an appropriate payment for past use and an agreement for future use. Nor do we consider it an abuse for PPL to require compliance with an injunction either by the person refraining from using the repertoire or by payment for such use that has taken place and will take place." 140. Apart from the fact that we are not dealing with a case where an....