MIPR2014(3)1,
2014(59)PTC501(Del)
IN THE HIGH COURT OF DELHI
Decided On: 06.08.2014
Appellants: Dandi
Salt Pvt. Ltd.
Vs.
Respondent: UOI
Judges/Coram:
Counsels:
For Appellant/Petitioner/Plaintiff: S.K. Bansal , Ajay
Amitabh Suman and Santosh Kumar , Advocates
For Respondents/Defendant: Amit
Mahajan and Nitya Sharma for CGSC, Advocates
JUDGMENT
1. The petitioner has, by way of this
petition, called into question orders dated 30.05.2011 and 24.08.2011 passed by
the Deputy Registrar of Copyrights (Copyright Board).
2. Briefly stated, the objection filed
by the petitioner against the application for registration of the copyright
filed by respondent no.2 was rejected by the Registrar of Copyrights. The
rejection of objection was challenged by the petitioner before the Copyright
Board in an appeal under Section 72(1) of the Copyright Act, 1957, albeit, beyond
the period of three months. The petitioner had also filed an application for
condonation of delay. By an order dated 30.03.2011, the appeal preferred by the
petitioner was dismissed by the Copyright Board on the ground that it was
belated and beyond the period of three months prescribed under section 72(1) of
the Act, 1957 (hereinafter referred to as the `Act').
3. The petitioner was aggrieved by the
dismissal of the appeal and filed an application seeking a review of the order
dated 31.03.2011 alleging that its application for condonation of delay was not
considered by the Copyright Board. By an order dated 30.05.2011, the Deputy
Registrar of Copyrights dismissed the said application of review on the ground
that the same is not maintainable. The petitioner did not accept this decision
and once again applied for review to be placed before the Copyright Board. The
Deputy Registrar, by its letter dated 24.08.2011, once again rejected the
petitioner's application stating that the matter was re-examined and the order
dated 30.05.2011, which now was referred to as "a decision taken by the
Board", was re-affirmed. It was further stated that there is no provision
of appeal/revision under the Act and the rules made thereunder against the
order passed by the Copyright Board in an appeal.
4. The controversy in the present case
is, essentially, whether an application for review of an order passed by the
Copyright Board lies in the given facts and circumstances of the case. And,
whether the Registrars (Copyright Board) would have the jurisdiction to reject
an application of review preferred before the Copyright Board.
5. Indisputably, an application to the
Copyright Board can only be decided by the said Board and not by the Registrar.
Whilst, the Registrar of the Copyright Board would, undoubtedly, have the power
to decide whether an application is in the correct form, complete in all
particulars and otherwise competent, but the merits of the said application
cannot be adjudicated by the Registrar.
6. The application filed by the
petitioner seeking review of the order passed by the Copyright Board, raises
several contentious issues including whether the Board could review its order
rejecting an appeal as belated. And, whether these issues could only be, in the
first instance, considered by the Copyright Board and not by the Registrar. The
learned counsel for the petitioner has relied upon a decision of the Supreme
Court in the case of Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and
Weaving Mills Ltd.: MANU/SC/0208/2005 : (2005) 13 SCC 777 and has referred to
paragraph 19 of the said decision which read as under:-
"19. Applying these
principles it is apparent that where a court or quasi-judicial authority having
jurisdiction to adjudicate on merit proceeds to do so, its judgment or order
can be reviewed on merit only if the court or the quasi-judicial authority is
vested with power of review by express provision or by necessary implication.
The procedural review belongs to a different category. In such a review, the court
or quasi-judicial authority having jurisdiction to adjudicate proceeds to do
so, but in doing so commits (sic ascertains whether it has committed) a
procedural illegality which goes to the root of the matter and invalidates the
proceeding itself, and consequently the order passed therein. Cases where a
decision is rendered by the court or quasi-judicial authority without notice to
the opposite party or under a mistaken impression that the notice had been
served upon the opposite party, or where a matter is taken up for hearing and
decision on a date other than the date fixed for its hearing, are some
illustrative cases in which the power of procedural review may be invoked. In
such a case the party seeking review or recall of the order does not have to substantiate
the ground that the order passed suffers from an error apparent on the face of
the record or any other ground which may justify a review. He has to establish
that the procedure followed by the court or the quasi-judicial authority
suffered from such illegality that it vitiated the proceeding and invalidated
the order made therein, inasmuch as the opposite party concerned was not heard
for no fault of his, or that the matter was heard and decided on a date other
than the one fixed for hearing of the matter which he could not attend for no
fault of his. In such cases, therefore, the matter has to be reheard in
accordance with law without going into the merit of the order passed. The order
passed is liable to be recalled and reviewed not because it is found to be
erroneous, but because it was passed in a proceeding which was itself vitiated
by an error of procedure or mistake which went to the root of the matter and
invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Govt.
Industrial Tribunal it was held that once it is established that the
respondents were prevented from appearing at the hearing due to sufficient
cause, it followed that the matter must be reheard and decided again."
7. The Supreme Court has explained that
although it is a settled law that in the absence of an express power of review,
the Tribunal would not have the power to review its own decisions, however, the
Supreme Court has held that there is a distinction between the power to review
a decision on merits and to correct a procedural infirmity. In cases where
there is a procedural infirmity which goes to the root of the proceedings, the
Tribunal would have an inherent power to review the same. The moot question
that arises is, whether non-consideration of an application for condonation of
delay amounts to review that falls into the category of a procedural review as
explained by the Supreme Court in the aforementioned decision. Obviously, this
question would in the first instance, be required to be considered by the
Copyright Board.
8. The learned counsel for the
respondents submits that a Single Judge of this Court, by an order dated
04.01.2012 in W.P. (C) No.35/2012, has concluded the issue against the
petitioner. The learned counsel has handed over a copy of the said order which
indicates that whilst the learned Single Judge held that the Registrar would
not have any power to reject an application made to the Copyright Board, the
learned Single Judge also concluded that the said Board would not have any
power to review its decision made on merits.
9. The said order dated 04.01.2012 also
supports the view that the Registrar of the Copyright Board does not have the
power to consider an application made to the Copyright Board and, thus, had
committed an error in passing the order 30.05.2011. Although, in that case the
learned Single Judge held that the Copyright Board cannot review its decision,
the same was in the context where the decision of the Board was found to be on
merits and not on account of a fundamental procedural infirmity. The question
would still remain, whether dismissal of an appeal on the ground of delay or
without considering an application on record, constitutes a procedural error.
10. In this view, the impugned orders
dated 30.05.2011 and 24.08.2011 are set aside and it is directed that the
application for review filed by the petitioner be placed before the Copyright
Board for an appropriate decision therein. I am also persuaded to pass this
order as no prejudice is likely to be caused to any party by adopting such
procedure. The parties would be at liberty to take such recourse as available
in law against any decision that may be passed by the Copyright Board.
11. It is also necessary to clarify that
nothing stated in this order should be construed as expression of opinion on
the question whether condonation of delay is a procedural matter or on the
merits of the controversy before the Copyright Board.
12. Accordingly, the present petition
stand disposed of in terms of the above directions.
