Patna High Court · 2001
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12277 of 2005 ====================================================== Sri Amrit Pal Singh S/o- Late Ganga Ram, proprietor of M/s. Badshah Industries, having its Head Office and place of business at Chitkohra Punjabi Colony, P.S. Gardanibagh, District - Patna .... .... Petitioner/s Versus 1. The Union Of India through its Chairman, the Copyright Board, B- 2/W3, Curzon Road Barracks, K.G. Marg, New Delhi – 110001. 2. The Registrar of Copyright, B-2/W3, Curzon Road Barracks, K.G. Marg, New Delhi – 110001. 3. Lal Babu Priyadarshi, S/o- Late Dr. Thakur Prasad, proprietor of Sri Om Perfumery having its Principal place of business at Bakerganj, Daldali Road, Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. S.S. Rama, Advocate Mrs. B.Rama, Advocate Mr. Jyoti Shankar, Advocate Mr. Harish Chandra Prasad, Advocate For the Respondent/s : Mrs. Anuradha Salhotra, Advocate Mr. Binay Kumar, Advocate.
Legal Reasoning
====================================================== CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA ORAL ORDER 10. 30.04.2013 Heard learned counsels for the petitioner as also respondent nos. 1 to 3. The grievance of the petitioner is that the order dated 12th of April 2005, passed by the Copyright Board in Appeal No. A-4/2004, as contained in Annexure-1, directing to consider the issue of registration of artistic work by the Registrar of the Board, deserves to be quashed, being not in conformity with the direction of this court, passed in Miscellaneous Appeal ( Appeal from original order 35 of 2001) by the Division Bench of this court, as per order dated 19th of Patna High Court CWJC No.12277 of 2005 (10) dt.30-04-2013 2 April 2001, vide Annexure -15. It is submitted on behalf of the petitioner that under the direction of this court, the cancellation of the registration of the respondent no. 3, was affirmed by this court for not following the procedure of Sub rule (3) of Rule 16, under the aforesaid Act and remanded the matter to enquire, as to whether, the certificate issued under proviso to Section 45 (1) of the Act was in order and not obtained by playing fraud. In other words, the submission is that the remand was limited only to enquire, as to whether the aforesaid certificate was obtained by fraud or not. It is further submitted that the matter was enquired and the certificate was found to be in order. Thereafter, nothing more was to be done as such, the impugned order, directing for hearing the matter with respect to the issue of registration under the Copyright Act, was not correct and was also not in accordance with the direction of this court and as such, the order deserves to be quashed. It is contended that registration was cancelled by the Board and later on, the same was affirmed by this court in the aforesaid judgement of this court and as such, the matter could not be re-agitated with respect to the cancellation of the registration. However, in case the respondent so desires for registration, it would be open for him to take all the steps afresh by getting certificate obtained under the proviso to Section 45(1) of the Act and then make Patna High Court CWJC No.12277 of 2005 (10) dt.30-04-2013 3 an application for registration. Learned counsel appearing for the respondent no. 3, on the other hand, submits that on perusal of operative portion of the order of this court, as stated in paragraph -25 , the order of the Copyright Board, cancelling the registration, was upheld with modification. The matter was remanded to the board to decide the claim for entry in the register of Copyright Act after hearing both the parties. Since, admittedly, the notice of application for registration was not served upon the petitioner as required under Sub rule (3) of Rule 16 under the aforesaid Act, it is further submitted that keeping into the direction of this court, the board having found that the certificate issued in favour of the respondent no. 3, was in order, as such, further directed to consider the original application for entry into the register of copyright, is correct as per the direction of this court. Considering the submissions of the parties and upon perusal of the impugned order dated 12th of April 2005, as contained in Annexure-1, it would appear that this court
Decision
disposed of the aforesaid appeal against the order of Copyright Board having found that the provision of Sub rule (3) of Rule 16 was not followed and as such, the order passed by the Copyright Board cancelling the registration, at the instance of the petitioner, herein, was correct. This court, however, directed the Board to decide the claim of entry in the register of Patna High Court CWJC No.12277 of 2005 (10) dt.30-04-2013 4 Copyright after hearing both the parties. It would be fruitful to quote Paragraphs 23, 24 and 25 of the aforesaid judgement. “Paragraph -23. Admittedly, Rule 16 (3) of the Rules has not been followed in this case before making the entry in the Register of Copyright under section 45 of the Act and, thus, the Board rightly came to the conclusion that non-observance of the provision of Rule 16 (3) of the Rules, which is mandatory in nature, has vitiated the certificate of registration in favour of the appellants. Paragraph -24. Thus, we do not find any infirmity in the order of the Board cancelling the registration of the appellants in the Register of Copyright in violation of the aforesaid Rules. However, cancellation of registration does not put an end to the dispute between the parties. The appellants claim to have obtained certificate in terms of proviso to Section 45 of the Act, which claim has been denied by the respondents and according to them that was obtained by playing fraud. The determination of the said question is necessary for the simple reason Patna High Court CWJC No.12277 of 2005 (10) dt.30-04-2013 5 that unless there is a certificate as provided under the proviso to section 45 (1) of the Act, granted by the Register, Trade Marks, no entry in the Register of Copyright can be made with regard to the artistic work in question. As the appellants have filed an application and the respondents are disputing their claim, this question is to be decided by the Registrar of the Copyright by holding an enquiry before passing a final order in terms of section 45 (2) of the Act. In our view, after cancelling the registration in favour of the appellants, the Board should have remanded the matter to the Registrar of the Copyright with a direction to hear both the parties and then to decide the question as to whether the claim of the appellants can be allowed or not on the basis of the materials on the record. Paragraph -25. In the result, this appeal is allowed in part. The order of the Board is upheld with the modification. The matter is remitted to the Board to decide the claim of the appellants for entry in the Register of Copyright after hearing both the parties in terms of the direction mentioned Patna High Court CWJC No.12277 of 2005 (10) dt.30-04-2013 6 above”. Upon considering the above, it would appear that by the impugned order (Annexure-1), the board has directed the Registrar to consider the original application filed by the respondent no. 3 after hearing both the parties and pass appropriate order. In my opinion, the aforesaid order, in light of the direction of this court cannot be faulted. In the result, I do not find any merit in this writ application. The writ application stands dismissed. (Shailesh Kumar Sinha, J) Jagdish/-