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Judgment
D. Murugesan, J.—The controversy arising in these appeals is as to whether this Court is having jurisdiction to entertain a suit in respect of
dispute/disputes relating to the infringement of copyright and piracy in the wake of Section 15 of the Telecom Regulatory Authority of India Act,
1997, which bars the civil Court to entertain any suit or proceeding in respect of any matter which the Appellate Tribunal constituted u/s 14 of the
Act would be empowered to determine.
The following are the few facts that are necessary for the disposal of these appeals.
For convenience, the parties are referred to as arrayed in the civil suits.
The pleadings in C.S. No. 963 of 2009 are as follows. M/s Sun TV Network Limited (hereinafter referred to as ""the first Plaintiff) is a leading
Television Network in South India. Sun TV is one of its channels and is the number one channel in Tamil Nadu when it comes to viewership. The
first Plaintiff also runs other channels in Tamil, namely, K.TV, Sun Music, Sun News, etc. The first Plaintiff had devised the system of uplinking
various programmes to satellite and facilitate the downloading of such programmes by authorized Multi System Operators (MS Os). In order to
download the signals of the first Plaintiff''s channels, they had authorized persons in various areas across the whole of India through the second
Plaintiff, namely, M/s Channel Plus (hereinafter referred to as ""the second Plaintiff'') and for that purpose, subscription agreements were entered
into. Only such subscribing persons were entitled to receive the signals of the first Plaintiff''s channels for onward transmission to the cable TV
operators. Any other person who receives such signals and/or uses it for further broadcast/transmission would be deemed to have infringed their
copyright and is also liable for prosecution for the offences under the provisions of the Copyright Act, 1957 and other relevant statutes, apart from
payment of damages and penalty.
The first Defendant, namely, M/s Jak Communications Private Limited had entered into a settlement agreement dated 8.7.2009 with the second
Plaintiff and in pursuance of the said settlement, the second Plaintiff handed over decoders to the first Defendant for distribution of the signals in
Kancheepuram Town. Thereafter, the first Defendant stopped making payments and returned the decoders issued to them alleging that the second
Plaintiff did not comply with the terms of the settlement agreement. Having returned the decoders for Kancheepuram, the first Defendant had been
supplying the signals to its operators illegally not only in Kancheepuram Town, but also to the other operators in Kancheepuram and
Tiruvannamalai Districts, the areas/districts which were not even covered under the agreement. Hence the second Plaintiff issued notice to the first
Defendant and in spite of the same, the first Defendant continued to distribute the signals illegally. On the ground that the first Defendant had been
illegally pirating the signals from their Avadi head-end to the other areas of Kancheepuram and Tiruvannamalai Districts by using the decoder
boxes and cards and that the other Defendants viz., 2 to 97 were only cable operators who did not have any subscription agreement with the
Plaintiff''s and/or with their distributors to tap/receive the signals of the channels, both the Plaintiff''s filed the above civil suit for a judgment and
decree of permanent and prohibitory injunction restraining the Defendants/its agents and attached cable operators, head-ends, or anyone from
taking link from them and their partners or proprietors and all others in capacity of principal or agent acting for and on their behalf from in any
manner violating and infringing the Broadcast Reproduction Rights as well as the Copyright in the programmes telecast by the first Plaintiff by
illegally tapping/receiving/recording the signals of Sun TV, KTV, Sun Music, Sun News, Gemini TV and Teja TV and transmitting/telecasting the
same or communicating the same to their Cable Operators, customers/subscribers/end users, without the permission, license or consent of the
Plaintiff''s. Along with the civil suit, they also filed O.A. No. 1111 of 2009 for an ad-interim prohibitory injunction restraining M/s Jak
Communications Private Limited and 96 others from in any manner violating and infringing the Broadcast Reproduction Rights as well as the
Copyright in the programmes telecast by the first Plaintiff by illegally tapping/receiving/recording the signals of Sun TV, KTV, Sun Music, Sun
News, Gemini TV and Teja TV and transmitting/telecasting the same or communicating the same to their Cable Operators,
customers/subscribers/end users, without the permission, license or consent of the applicants, pending disposal of the suit.
Almost with similar pleadings, both the Plaintiff''s viz., M/s Sun TV Network Limited and M/s. Channel Plus also filed another suit in C.S. No.
973 of 2009 and O.A. No. 1119 of 2009 against the first Defendant-M/s Temple City Network and 79 others for a similar relief of injunction.
By order dated 28.10.2009, ad-interim prohibitory injunction was granted by this Court. The first Defendant in C.S. No. 963 of 2009 namely,
M/s Jak Communications Private Limited filed Application No. 5776 of 2009 seeking to vacate the ad-interim injunction. They also filed
Application No. 5777 of 2009 to reject the plaint in C.S. No. 963 of 2009 primarily on the ground that in terms of Sections 15 and 27 of the
Telecom Regulatory Authority of India Act, 1997, there is a statutory bar for this Court to entertain the suit. Likewise, the first Defendant in C.S.
No. 973 of 2009, namely, M/s Temple City Network also filed Application No. 5778 of 2009 to reject the plaint on the very same ground.
All the applications were heard and disposed of by a common order dated 3.11.2009 by the learned single Judge holding that the dispute
pertains to transmission of signals to other areas not covered by the agreement and therefore the suits were maintainable. He has also relied on an
order of the Division Bench of this Court in New Galaxy Netcom Vs. S.C.V., . He dismissed the applications filed by the Defendants for rejection
of plaint. The learned Judge also extended the interim order of injunction granted against the first Defendant until further orders and ordered ex
parte injunction as against the other Defendants.
Questioning the above orders, both M/s Jak Communications Private Limited and M/s Temple City Network have preferred the present original
side appeals.
We have heard Mr. R. Krishnamoorthy, learned senior counsel appearing for M/s Jak Communications Private Limited, the first Defendant in
C.S. No. 963 of 2009, Mr. R. Muthukumaraswamy, learned senior counsel appearing for M/s Temple City Network, the first Defendant in C.S.
No. 973 of 2009, Mr. P.S. Raman, learned senior counsel for M/s Sun TV Network and M/s Channel Plus, the first and second Plaintiff''s in C.S.
No. 963 of 2009 and Mr. Vijay Narayan, learned senior counsel for M/s Sun TV Network and M/s Channel Plus, the first and second Plaintiff''s
in C.S. No. 973 of 2009.
Mr. R. Krishnamoorthy, learned senior counsel would submit that M/s Jak Communications Private Limited applied on 20.2.2008 for
Conditional Access System (CAS) for Chennai Metropolitan area, where the Plaintiff''s are acting as Multi System Operators and the Ministry of
Information and Broadcasting granted permission on 5.8.2008. In the meantime, due to business competition, the second Plaintiff issued statutory
notice followed by publication of notice in the newspaper as required under Regulation 4.1 and 4.2 of the Telecommunication (Broadcasting and
Cable Services) Interconnection Regulations, 2004 (for short, ""the Interconnection Regulations""). Hence M/s Jak Communications Private Limited
filed a petition u/s 14 of the Telecom Regulatory Authority of India Act (for short, ""the TRAI Act"") before the Telecom Disputes Settlement and
Appellate Tribunal (for short, ""the TDSAT""). Therefore, both the Plaintiff''s issued another disconnection notice for the alleged non-payment of
charges and on the alleged ground of piracy as per Regulation 4.1 and 4.2 of the Interconnection Regulations, which necessitated M/s Jak
Communications Private Limited to again move TDSAT with another application. As the permission for Conditional Access System for Chennai
area was granted, that order added fuel to the fire. In the meantime, the TDSAT after negotiations directed the settlement to be entered between
M/s Jak Communications Private Limited and M/s Channel Plus and accordingly, a service contract agreement dated 8.7.2009 was entered into
between the Plaintiff''s and M/s Jak Communications Private Limited for Avadi and other areas. Another agreement dated 16.7.2009 was also
entered into for Kancheepuram District for the period upto 16.10.2009. These papers were unfilled, but signed on behalf of M/s Jak
Communications Private Limited. In the meantime, M/s Jak Communications Private Limited withdrew the pending case in Petition No. 112(C) of
2008 and M.A. No. 80 of 2008 as per the terms of settlement agreement dated 8.7.2009. Thereafter, the Plaintiff''s failed from their promise to
grant Multi System Operator for the Kancheepuram District and restricted only for Kancheepuram Town. In violation of the terms of the
settlement agreement, it suspended the settlement agreement and also took steps to restore the case in Petition No. 112(C) of 2008. Again M/s
Channel Plus issued another disconnection notice dated 25.10.2009 under Regulation 4.9 and 4.3 alleging that M/s Jak Communications Private
Limited was transmitting signals to unauthorized areas namely, Kancheepuram Town by illegally using its head-end facility at Avadi.
He would therefore submit that only under the said circumstances, the suit came to be filed. It is his contention that having defended those
petitions before TDSAT, the Plaintiff''s cannot now file the suit on the ground that the dispute does not fall u/s 14 of the TRAI Act. The learned
senior counsel also submitted that there is express bar u/s 15 of the TRAI Act for a civil Court to entertain and try a suit which is covered u/s 14 of
the Act. M/s Jak Communications Private Limited is a service provider as defined u/s 2(1)(j) of the TRAI Act and Regulation 2(n) of the
Interconnection Regulations. He would submit that the telecommunication service is defined u/s 2(1)(k) of the TRAI Act, which includes other
service to be telecommunication service. In that event and by virtue of the proviso to that section, the Central Government may notify and such
notification may further include broadcasting service as well. That proviso came into force only with effect from 24.1.2000 and a notification was
also issued by the Central Government on 9.1.2004 declaring broadcasting services to be telecommunication services within the meaning of
Section 2(1)(k) of the TRAI Act and therefore the issue relating to telecommunication service is covered under the TRAI Act and the said Act
being a later enactment, it would prevail over the provisions of the Copyright Act. Inasmuch as the dispute is between the service providers, the
Plaintiff''s should only approach the TDSAT in terms of Section 14, especially when Section 15 bars the civil Court''s jurisdiction in respect of any
matter which the appellate Tribunal is empowered to adjudicate and determine.
Mr. R. Muthukumaraswamy, learned senior counsel appearing for M/s Temple City Network would also submit that Section 14 of the TRAI
Act would cover all disputes except what is stated in the proviso to the said Section. Such proviso does not include the dispute relating to
copyright. The suit is not maintainable, as the Plaintiff''s should approach only the TDSAT. He would submit that Section 2(1)(j) of the TRAI Act
and Regulation 2(n) of the Interconnection Regulations should be read to mean that the broadcasting service also includes service provider.
Interconnection Regulations were framed in exercise of the powers conferred u/s 36 of the TRAI Act and those regulations have statutory force. In
that event, the dispute between the Plaintiff''s and Defendants should certainly fall u/s 14(a)(ii) of the TRAI Act and the TDSAT alone will have
power to determine the dispute. He would also submit that Chapter VIII of the Copyright Act comprising Sections 37 to 39-A was inserted by
Amendment Act 1994 which speaks of broadcast reproduction rights only and that enactment being earlier in point to TRAI Act, the later
enactment which is a special Act shall alone prevail. In any case, the Plaintiff''s are not licensees under the Telegraphic Act and they are only
broadcaster, TV channel distributor and multi system operator respectively. These points were not considered by the earlier Division Bench in the
judgment in New Galaxy Netcom Vs. S.C.V., . Hence the learned senior counsel would submit that the suit is not maintainable and the plaint is
liable to be rejected.
Mr. Vijay Narayan, learned senior counsel appearing for the Plaintiff''s would submit that the issue is covered by the order of the Division
Bench of this Court in New Galaxy Netcom Vs. S.C.V., . He would submit that the TRAI Act deals with telecommunication service and it
provides an appellate forum which is a high profile body with certain specific functions u/s 11 of the TRAI Act. The disputes covered under
Sections 11 and 12 of the TRAI Act alone can be the subject matter of appeal u/s 14. However, the Copyright Act is an enactment for
reconciliation of the law relating to copyright. Section 37 deals with violation of copyright which is known as ''Broadcast Reproduction Right''. In
terms of Section 39, no broadcasting reproduction right or performer''s right shall be infringed and for such infringement, civil remedies are
available u/s 55 of the TRAI Act. Inasmuch as the suit is laid on the ground of infringement of copyright and piracy, the provisions of Section 14 of
TRAI Act are not applicable and the suit is well within the provisions of Section 55 of the Copyright Act. While two enactments are considered,
the relevant provisions should be interpreted in the context of the object and reasons. He would submit that the Court should strictly construe that
the provision of civil law remedy is generally available unless it is specifically ousted. He would also submit that the Defendants are not service
providers within the meaning of Section 2(1)(j) of the TRAI Act and therefore they cannot claim that the power of the TDSAT can be traced to
Section 14(a)(ii) of the TRAI Act. His further contention is that the disputes pending before the TDSAT and the participation of the Defendants in
those proceedings cannot be construed to be an estoppel and the parties cannot waive their right to oust the jurisdiction of civil Court unless such
waiver is supported by law. As regards the submissions as to the application of Interconnection Regulations, he would submit that the Regulations
cannot control the provisions of the Act and in case of any conflict, the Act shall prevail. Inasmuch as the Defendants cannot be considered to be
service providers in terms of Section 2(1)(j) of the TRAI Act, the disputes in question shall not fall u/s 14(a)(ii) of the TRAI Act. He would further
contend that in any case, the judgment of the Division Bench in New Galaxy Netcom case (supra) is normally to be followed unless there are
strong and compelling reasons to disagree.
Mr. P.S. Raman, learned senior counsel for the Plaintiff''s would also submit that going by the plaint, the Court would be entitled to entertain a
suit in terms of Section 9 of the Code of CPC and in that regard, Section 14 of the TRAI Act is not applicable. He would submit that the exclusion
of civil Court jurisdiction is not general, as it is only an exemption. According to the learned Counsel, the Copyright Act creates a pre-existing right
and those rights are not specifically excluded in the TRAI Act. He would further submit that a dispute for the purpose of both the appellate remedy
or civil rights should be considered with reference to the objects of the Act. He would submit that when two enactments are put in issue, the
provisions of these enactments should be read in consonance with the object and reasons for which the enactments were made and any
interpretation to defeat that purpose of the particular enactment would defeat the very purpose of the Act itself. He would submit that by no stretch
of imagination it can be contended that the TRAI Act could take away the right of the High Court to entertain a suit for infringement of copyright,
especially when those disputes are not covered u/s 14 of the TRAI Act. He would reiterate that the Defendants are not service providers. He
would further submit that the subscription agreement did not cover certain areas where M/s Jak Communications Private Limited had illegally
pirated and transmitted the signals from their Avadi head-end to the other areas. That apart, the agreements themselves were later on terminated
and hence the Defendants cannot claim that the above dispute could be brought u/s 14 of the TRAI Act.
We have given our anxious consideration to the submissions made by the respective learned senior counsel. In the wake of the above factual
scenario, three questions arise:
(i) Whether the jurisdiction of the civil Court to entertain a suit in respect of matters covered in Chapter VIE of the Copyright Act is excluded, in
view of the provision of Section 15 of the TRAI Act?
(ii) Whether the Defendants are service providers in terms of Section 2(1)(j) of the TRAI Act and Regulation 2(n) of the Interconnection
Regulations? and
(iii) Whether the Plaintiff''s are estopped from filing the suits, as they had defended the petitions filed by the Defendants before TDSAT?
For deciding the questions, the relevant provisions of the TRAI Act, Interconnection Regulations, Copyright Act and the Code of CPC need a
reference and they are extracted hereunder: -
TRAI Act:
Section 2(1)(e) defines ""license"" which means, any person licensed under Sub-section (1) of Section 4 of the Indian Telegraph Act, 1885 for
providing specified public telecommunication services.
Section 2(1)(i) defines ""regulations"" which means regulations made by the Authority under this Act.
Section 2(1)(j) defines ""service provider"", which means the Government as a service provider and includes a licensee.
Sub-section (2) of Section 2 says the words and expressions used and not defined in this Act but defined in the Indian Telegraph Act, 1885 and
Indian Wireless Telegraphy Act, 1933 shall have the meanings respectively assigned to them in those Acts.
Chapter III of the TRAI Act speaks about the powers and functions of the Authority.
Section 11(1) states that notwithstanding anything contained in the Indian Telegraph Act, 1885, the functions of the Authority shall be to -
Revocation of license for non-compliance of terms and conditions of license;
Chapter IV deals with Appellate Tribunal. The said Chapter inserted by amending Act 2 of 2000 with retrospective effect from 24.01.2000.
Section 14 reads as follows:
The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement Appellate Tribunal
to-
(a) adjudicate any dispute -
(i) between licensor and a licensee;
(ii) between two or more service providers''
(iii) between a service provider and a group of consumers:
Section 14-A speaks about Application for settlement of disputes and appeals to Appellate Tribunal.
Sub-section (2) of Section 14-A says that the Central Government or a State Government or a local authority or any person aggrieved by any
direction, decision or order made by the Authority may prefer an appeal to the Appellate Tribunal.
Section 15 says that: No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Appellate Tribunal
is empowered........................
Section 36 grants power to the Authority to make regulations.
The Authority in exercise of powers conferred upon u/s 36 and other provisions and notifications has framed Telecommunication (Broadcasting
and Cable Services) Interconnection Regulations, 2004. The said regulations shall cover arrangements among service providers for interconnection
and revenue share, for all Telecommunication (Broadcasting and Cable Services) throughout the territory of India.
Interconnection Regulations:
Regulation 2 deals with definition and it starts with the words ""unless the context otherwise requires"".
Regulation 2(f) defines ""broadcasting services"".
Regulation 2(m) defines ""multi-system operator"" meaning any person who receives a broadcasting service from a broadcaster and/or their
authorized agencies and re-transmits the same to consumers and/or re-transmits the same to one or more cable operators and includes his/her
authorized distribution agencies.
Regulation 4 speaks about Disconnection of TV channel signals and it reads as follows:
4.1 No broadcaster or multi-system operator shall disconnect the TV channel signals to a distributor of TV channels without giving one month
notice indicating the brief reasons for the proposed action;
Provided that in case a distributor of TV channel is re-transmitting signals for which he/she is not authorized and thereby affecting the commercial
interest of the concerned broadcaster or multi-system operator, the notice period shall be two working days giving reasons to the concerned
distributor of TV channel for such action.
Explanation: A distributor of TV channels is said to be authorized if there exists any agreement between the broadcaster, including his/her agents
permitting the distribution of the broadcasting service by the said distributor of TV channels, either through a written agreement or through an oral
agreement. Consequently no notice would be required if there is no agreement, written or oral, permitting the distribution of the broadcasting
service.
4.2 Broadcaster/multi-system operator shall inform the consumers about the dispute to enable them to protect their interests. Accordingly, the
notice to discontinue signal shall also be given in two local newspapers in case the distributor of TV channels is operating in local area and in two
national papers in case the distributor of TV channels is providing services in a wide area. Alternatively consumers can be informed through scroll
on the concerned channel(s). Where a Broadcaster or a Multi-System Operator decides to give this notice through a scroll in the concerned
channel(s).
Explanatory memorandum is also appended to the said Regulation, which explains the reasons for framing of the above said regulations and
relevant portion is extracted below:
TRAI Act 1997 came to be amended by Act 2 of 2000. The said amendment came into being by virtue of the recommendation made by the
Group of Telecom and IT Convergence under the Chairmanship of the Finance Minister. Under the said amendment Act, TDSAT came to be
established for adjudicating disputes between licensor and licensee, between two or more service providers between a service provider and a
group of consumers and also to hear and dispose of any appeals from the direction, decision or order of the Authority.
Proviso is also inserted to Section 2(1)(k) - ""telecommunication service"". As per the said proviso, the Central Government may notify other service
to be telecommunication service including broadcasting services.
Copyright Act:
Broadcast reproduction right.-(1) Every broadcasting organisation shall have a special right to be known as ""broadcast reproduction right"" in
respect of its broadcasts.
(2) The broadcast reproduction right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the
broadcast is made.
(3) During the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without the licence of the owner of the
right does any of the following acts of the broadcast or any substantial part thereof, -
(a) re-broadcasts the broadcast; or
(b) causes the broadcast to be heard or seen by the public on payment of any charges; or
(c) makes any sound recording or visual recording of the broadcast; or
(d) makes any reproduction of such sound recording or visual recording where such initial recording was done without licence or, where it was
licensed, for any purpose not envisaged by such licence ; or
(e) sells or hires to the public, or offers for such sale or hire, any such sound recording or visual recording referred to in Clause (c) or Clause (d),
shall, subject to the provisions of Section 39, be deemed to have infringed the broadcast reproduction right.]
When copyright infringed.-Copyright in a work shall be deemed to be infringed-
(a) when any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of
the conditions of a licence so granted or of any condition imposed by a competent authority under this 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 ""infringing copy"".
Civil remedies for infringement of copyright.-(1) Where copyright in any work has been infringed, the owner of the copyright shall, except as
otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred
by law for the infringement of a right:
Provided that if the Defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that
copyright subsisted in the work, the Plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree
for the whole or part of the profits made by the Defendant by the sale of the infringing copies as the Court may in the circumstances deem
reasonable.
(2) Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author or the publisher, as the case may
be, appears on copies of the work as published, or, in the case of an artistic work, appeared on the work when it was made, the person whose
name so appears or appeared shall, in any proceeding in respect of infringement of copyright in such work, be presumed, unless the contrary is
proved, to be the author or the publisher of the work, as the case may be.
(3)......
Code of Civil Procedure:
Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation 1....
Explanation 2....
Copyright Act And Trai Act:
The Copyright Act creates a pre-existing right and copyright protection finds its justification in fair play and it gives the owner certain exclusive
rights created u/s 16 of the Act. The Copyright Act is to ensure protection from an unlawful exploitation of that right. The owner of copyright
enjoys wide protection under the Act. Such copyright shall be deemed to be infringed when any person without a licence granted by the owner of
the copyright does anything, the exclusive right to do which is conferred upon the owner.
The scheme of the Copyright Act is that the owner of copyright is free to enter into voluntary agreement or licence on terms mutually acceptable to
him and the licensee. However, such licence passes no interest, but merely makes lawful that which would otherwise be unlawful. Section 2(j) and
Section 55 of the Act show that the copyright owner has complete freedom to his copyright. In the event the owner of copyright does not enter
into any agreement or grant licence to anybody and if such person unlawfully uses such copyright, it would amount to infringement, giving cause for
the copyright owner to sue against such person. Under the Copyright Act, a special right has been granted in Chapter VIII, namely, ""the broadcast
reproduction right"". Section 37 deals with such broadcast reproduction right, wherein it is stated that every broadcasting organization shall have a
special right to be known as ''broadcast reproduction right'' in respect of its broadcasters. Sub-section (3) of Section 37 states that during the
continuance of a ""broadcast reproduction right"" in relation to any broadcast, any person who without the licence of the owner of the right does any
of the acts of broadcast or any substantial part thereof enumerated thereunder shall be deemed to have infringed the ""broadcast reproduction
right"". That infringement includes re-broadcasting the broadcast, which includes the broadcast to be heard or seen by the public on payment of any
charge. In terms of Section 51(a), when any person without a licence granted by the owner of the copyright or the Registrar of Copyrights under
the Act or in contravention of the conditions of a licence so granted or any of the conditions imposed by a competent authority under the Act, does
anything, the exclusive right to do which is by the Act conferred upon the owner of the copyright shall be considered that the copyright shall be
deemed to be infringed. In such a situation, in terms of Section 55, the owner of a copyright shall be entitled to such remedies by way of injunction,
damages, accounts and otherwise as are or may be conferred by law for the infringement of a right.
Section 2(m) of the Copyright Act defines ''infringing copy'' as meaning that infringement in relation to a literary, dramatic, musical or artistic
work, a reproduction thereof otherwise than in the form of a cinematographic film, and in relation to a cinematograph film, a copy of the film made
on any medium by any means and also includes in relation to a sound recording, any other recording embodying the same sound recording by any
means. While considering the increase in the punishment provided for infringement of the copyright and to declare the offence of infringement of
copyright as economic offence etc., the amendment Act 65 of 1984 in the Copyright Act was brought in. The statement of objects and reasons
states that the piracy has become a global problem due to the rapid advances in technology and it has assumed alarming proportions all over the
world and all the countries are trying to meet the challenge by taking stringent legislative and enforcement measures. The problem of piracy and the
necessity for taking sufficient anti-piracy measures were also voiced by members of Parliament at the time of the consideration of the Bill to amend
the Copyright Act, 1957. The statement of objects and reasons further noticed the three types of piracy, namely, piracy of the printed word, piracy
of sound recordings and piracy of cinematograph films. The legislatures were aware of the right of an owner to protect the copyright and also such
a right to approach the civil Court u/s 55 in case of infringement of such copyright.
In terms of Section 9 of the Code of Civil Procedure, the civil Court has jurisdiction to entertain a suit for injunction and try the same excepting
a suit of civil nature which is expressly or impliedly barred. The suit is filed on the ground that the copyright is infringed by the Defendants while
they receive the signals from their Avadi head-end and transmit the same to the cable TV operators in the areas which are not covered under the
agreement. That act, according to the Plaintiff''s, would amount to piracy. On the other hand, the TRAI Act was enacted to provide for the
establishment of the Telecom Regulatory Authority of India and the Telecom Disputes Settlement and Appellate Tribunal to regulate the telecom
services, adjudicate disputes, dispose of appeals and to protect the interests of service providers etc., and to promote and ensure orderly growth
of the telecom sector. The statement of objects and reasons shows that the Act is to meet the customers demand at reasonable price for the
protection and promotion of consumer interest and ensuring fair competition. Section 2(1)(j) of the TRAI Act defines ""service provider"" as
meaning, the Government as a service provider including a licensee. To invoke the said provision, the service provider must be either the
Government or a licensee. However, Regulation 2(n) of the Interconnection Regulations defines ""service provider"" as meaning, the Government as
a service provider and includes a licensee as well as any broadcaster, multi system operator, cable or distributor of TV channels. As per the said
definition, even a broadcaster or a cable or distributor of TV channels can be considered to be service provider. Section 14 of the Act relates to
the establishment of appellate Tribunal. The relevant provisions for our purpose is Section 14(a)(ii). By that provision the Tribunal is conferred with
the power to adjudicate any dispute between two or more service providers. For application of that provision, there must be two conditions viz.,
(i) with regard to the dispute and (ii) with regard to two or more service providers. The proviso to the said Section excludes certain disputes arising
under specified enactments from the purview of the appellate Tribunal and Copyright Act is not one such of those enactments excluded under that
proviso. By virtue of the above provisions, in case if any dispute arises between two or more service providers, that dispute can be resolved by the
TDSAT.
In view of the rival contentions as to the application of the Copyright Act and Section 9 of the Code of CPC by the Plaintiff''s and the
exclusion of that power in view of the provisions of Section 15 of TRAI Act by the Defendants, the following judgments of the Supreme Court can
be considered. In Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, , the Supreme Court, while considering the exclusion of
jurisdiction of civil Court, has observed as follows:
Neither of the two cases of Firm and Illuri Subbayya Chetty and Sons Vs. The State of Andhra Pradesh, or Kamla Mills, 1966 1 SCR 64 :
(AIR 1965 SC 1942) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in
this Court may be stated as follows:
(1) Where the statute gives a finality to the orders of the special Tribunals the civil courts'' jurisdiction must be held to be excluded if there is
adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the
provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of
judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the
sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes
necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and
provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by
the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High
Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of
certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy
to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegality collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if
the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the
particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.
In Nahar Industrial Enterprises Ltd. Vs. Hong Kong and Shanghai Banking Corporation, , the Supreme Court has observed as follows:
The civil court indisputably has the jurisdiction to try a suit If the suit is vexatious or otherwise not maintainable action can be taken in respect
thereof in terms of the Code. But if all suits filed in the civil courts, whether inextricably connected with the application filed before the DRT by the
banks and financial institutions are transferred, the same would amount to ousting the jurisdiction of the civil courts indirectly. Suits filed by the
debtor may or may not be counterclaims to the claims filed by banks or financial institutions but for that purpose consent of the Plaintiff is
necessary.
It is furthermore difficult to accept the contentions of the Respondents that the statutory provisions contained in Sections 17 and 18 of the
DRT Act have ousted the jurisdiction of the civil court as the said provisions clearly state that the jurisdiction of the civil court is barred in relation
only to applications from banks and financial institutions for recovery of debts due to such banks and financial institutions.
A civil court is entitled to decide the respective claims of the parties in a suit. It must come within the purview of the hierarchy of courts as
indicated in Section 3 of the Code. It will have jurisdiction to determine all disputes of civil nature unless the same is barred expressly by a statute
or by necessary implication.
Thus, it is clear that unless there is a specific bar either expressly or by necessary implication, the jurisdiction of civil Court is not ousted.
The Supreme Court in Cellular Operators Association of India v. Union of India, AIR 2003 SC 899, while dealing with the Section 14 of
TRAI Act, has held as follows:
What is the extent of jurisdiction of the Appellate Tribunal u/s 14 of the Act. Suffice it to say, Chapter IV containing Section 14 was inserted by an
amendment of the year 2002 and the very Statement of Objects and Reasons would indicate that to increase the investors'' confidence and to
create a level playing field between the public and the private operators, suitable amendment in the Telecom Regulatory Authority of India Act,
1997 was brought about and under the amendment, a tribunal was constituted called the Telecom Disputes Settlement and Appellate Tribunal for
adjudicating the disputes between a licensor and a licensee, between two or more service providers, between a service provider and a group of
consumers and also to hear and dispose of appeal against any direction, decision or order of the Authority. The aforesaid provision was absolutely
essential as the organizations of the licensor, namely, MTNL and BSNL were also service providers. That being the object for which an
independent tribunal was constituted, the power of that Tribunal has to be adjudged from the language conferring that power and it would not be
appropriate to restrict the same on the ground that the decision which is the subject-matter of challenge before the Tribunal was that of an expert
body. It is no doubt true, to which we will advert later, that the composition of the Telecom Regulatory Authority of India as well as the
constitution of GOT-IT in April 2001 consists of a large number of eminent impartial experts and it is on their advice, the Prime Minister finally
took the decision, but that would not in any way restrict the power of the Appellate Tribunal u/s 14, even though in the matter of appreciation the
Tribunal would give due weight to such expert advice and recommendations. Having regard to the very purpose and object for which the
Appellate Tribunal was constituted and having examined the different provisions contained in Chapter IV, more particularly, the provision dealing
with ousting the jurisdiction of the civil court in relation to any matter which the Appellate Tribunal is empowered by or under the Act, as contained
in Section 15, we have no hesitation in coming to the conclusion that the power of the Appellate Tribunal is quite wide, as has been indicated in the
statute itself and the decisions of this Court dealing with the power of a court, exercising appellate power or original power, will have no
application for limiting the jurisdiction of the Appellate Tribunal under the Act. Since the Tribunal is the original authority to adjudicate any dispute
between a licensor and a licensee or between two or more service providers or between a service provider and a group of consumers and since
the Tribunal has to hear and dispose of appeals against the directions, decisions or order of TRAI, it is difficult for us to import the self-contained
restrictions and limitations of a court under the judge-made law to which reference has already been made and reliance was placed by the learned
Attorney-General. By saying so, we may not be understood to mean that the Appellate Tribunal while exercising power u/s 14 of the Act, will not
give due weight to the recommendations or the decisions of an expert body like TRAI or in the case in hand, GOT-IT, which was specifically
constituted by the Prime Minister for redressing the grievances of the cellular operators. We would, therefore, answer the question of jurisdiction of
the Appellate Tribunal by holding that the said Tribunal has the power to adjudicate any dispute between the persons enumerated in Clause (a) of
Section 14 and if the dispute is in relation to a decision taken by the Government, as in the case in hand, due weight has to be attached both to the
recommendations of TRAI which consists of an expert body as well as to the recommendations of GOT-IT, a committee of eminent experts from
different fields of life, which had been constituted by the Prime Minister.
The Supreme Court, in the above judgment, has observed that the ouster of jurisdiction of civil Court would be only in respect of any matter
which the appellate Tribunal is empowered by or under the provisions contained in Section 14 of the Act. By that judgment, we could observe that
though the appellate Tribunal has wider power in entertaining matters concerning any dispute and determine the same, such dispute must be
referable to the dispute under the Act. In the above judgment, while considering in detail the scope of the TRAI Act and in particular the power of
the appellate Tribunal u/s 14, the Supreme Court also indicated that the dispute/disputes should be traceable to Section 14 of the Act, namely, any
dispute between the licensor and licensee, between two or more service providers and between a service provider and a group of consumers and
not otherwise.
In Union of India v. Tata Teleservices (Maharashtra) Ltd, (2007) 6 MLJ 1692, the Supreme Court considered the appeal arising out of the
order passed by the TDSAT. The prayer sought for before the TDSAT was for declaration that the action of the Union of India in raising a claim
and in recovering the amount as per the demand dated 10.08.99, was bad in law and for consequential reliefs. It has been contended that a
counter claim at the instance of Union of India in a proceeding initiated in the TDSAT by the licensee/ service provider is maintainable or not. In
paragraph Nos. 15, 19 and 22 of the said decision, it has been held as follows:
The conspectus of the provisions of the Act clearly indicates that disputes between the licensee or licensor, between two or more service
providers which takes in the Government and includes a licensee and between a service provider and a group of consumers are within the purview
of TDSAT. A plain reading of the relevant provisions of the Act in the light of the Preamble to the Act and the Objects and Reasons for enacting
the Act, indicates that disputes between the parties concerned, which would involve significant technical aspects, are to be determined by a
specialised tribunal constituted for that purpose. There is also an ouster of jurisdiction of the civil court to entertain any suit or proceeding in respect
of any matter which TDSAT is empowered by or under the Act to determine. The civil court also has no jurisdiction to grant an injunction in
respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The constitution of TDSAT itself indicates
that it is chaired by a sitting or retired Judge of the Supreme Court or sitting or a retired Chief Justice of the High Court, one of the highest judicial
officers in the hierarchy and the members thereof have to be of the cadre of Secretaries to the Government, obviously well experienced in
administration and administrative matters.
The thrust of the argument on behalf of the Respondent before us was, in a case where a licence had not actually been issued to a party by the
Central Government, the dispute could not be said to be one between a licensor and a licensee, contemplated by Sections 14(a)(i) or (ii) of the
Act. It is submitted that only on the actual grant of a licence, would a person become a licensee under the Central Government and only a dispute
arising after the grant of a licence would come within the purview of the Act. The wording of the definition of licensee is emphasised in support.
Considering the purpose for which the Act is brought into force and TDSAT is created, we think that there is no warrant for accepting such a
narrow approach or to adopt such a narrow construction. It will be appropriate to understand the scope of Section 14(a)(i) of the Act and for that
matter Section 14(a)(ii) of the Act also, as including those to whom licenses were intended to be issued and as taking in also disputes that
commence on the tender or offer of a person being accepted. In other words, a dispute commencing with the acceptance of a tender leading to the
possible issue of a licence and disputes arising out of the grant of licence even after the period has expired would all come within the purview of
Section 14(a) of the Act. To put it differently, Section 14 takes within its sweep disputes following the issue of a letter of intent, pre-grant of actual
licence as also disputes arising out of a licence granted between a quondam licensee and the licensor.
We have already indicated that a specialised tribunal has been constituted for the purpose of dealing with specialised matters and disputes
arising out of licences granted under the Act. We therefore do not think that there is any reason to restrict the jurisdiction of the tribunal so
constituted by keeping out of its purview a person whose offer has been accepted and to whom a letter of intent is issued by the Government and
who had even accepted that letter of intent. Any breach or alleged breach of obligation arising after acceptance of the offer made in response to a
notice inviting tender, would also normally come within the purview of a dispute that is liable to be settled by the specialised tribunal.
The above judgment of the Supreme Court once again reiterates the power of the appellate Tribunal to deal with a dispute covered u/s 2(1)(j)
of the TRAI Act, that is between the Government and the service provider. To sum up, to bring a dispute u/s 14 of TRAI Act, such dispute must
be with reference to the agreement which is binding and in force on the date of the dispute that arises and again that dispute must be between
licensor or licensee, or between two or more service providers or between service providers and a group of consumers. Even in case of a dispute
falling under the binding agreement, unless the second limb is satisfied, the TDSAT would not have jurisdiction to determine such dispute.
Trai Act And Interconnection Regulations, 2004:
The next controversy is as to whether Regulation 2(n) of the Interconnection Regulations will prevail over Section 2(1)(j) of TRAI Act as to
the meaning of the words ""service provider"". We may refer to the following judgments of the Supreme Court, where the Supreme Court has dealt
with a situation when two specific enactments are put forth for application. In the judgment in Tolaram Relumal and Another Vs. The State of
Bombay, , the Supreme Court has held as follows:
8... if two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts
the subject from penalty rather than the one which imposes penalty. It is not competent to the court to stretch the meaning of an expression used by
the legislature in order to carry out the intention of the legislature.
The learned author Justice G.P. Singh after extracting the principles laid down by the Supreme Court as well as by the English courts summed up
the principles in the following manner:
The content of the rule and its limits, in the sense now understood, may be summed up in the following propositions:
(1) If the prohibitory words in their known signification cover only some class of persons or some well-defined activity, their import cannot be
extended to cover other persons or other activity on considerations of policy or object of the statute.
(2) If the prohibitory words are reasonably capable of having a wider as also a narrower meaning and if there is no clear indication in the statute or
in its policy or object that the words were used in the wider sense, they would be given the narrower meaning.
(3) When the prohibitory words are equally open to two constructions, one of which covers the subject and the other does not, the benefit of
construction will be given to the subject.
(4) If the prohibitory words in their known signification bear a wider meaning which also fits in with the object or policy of the statute, the words
will receive that wider meaning and their import will not be restricted even if in some other context they can bear a narrower meaning.
(5) If the literal reading of the prohibitory words produces an unintelligible or non-sensual result, but the statute read as a whole gives out its
meaning clearly, effect will be given to that meaning by curing a mere defect in phraseology.
Relying on the aforesaid principles governing the construction of the penal statute Shri P-. Chidambaram, learned Counsel for the Appellants
submitted that the provisions of Section 14(2-A) and Section 17(4) should reasonably be construed and if so construed Section 14(2-A) becomes
inapplicable to the facts of the case on hand. It is true that all the penal statutes should be construed strictly and the court must see that the thing
charged as an offence is within the plain meaning of the words used but it must also be borne in mind that the context in which the words are used
is important. The legislative purpose must be noted and the statute must be read as a whole. In our view taking into consideration the object
underlying the Act and on reading Sections 14 and 17 in full, it becomes clear that cancellation of the exemption granted does not amount to a
penalty within the meaning of Section 14(2-A). As already noted these provisions which form part of the Act, which is a welfare legislation are
meant to ensure the employees the continuance of the benefits of the provident fund. They should be interpreted in such a way so that the purpose
of the legislation is allowed to be achieved (vide M/s. International Ore and Fertilizers (India) Pvt. Ltd. Vs. Employees'' State Insurance
Corporation, . In Seaford Court Estates Ltd. v. Asher- 1949 2 All ER 155 (CA) Lord Denning, L.J. observed: (All ER 164)
The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen
of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the
language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would
certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect
appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of
Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it
and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ''force and life'' to the intention of
the legislature.... A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it,
they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven,
but he can and should iron out the creases.
(emphasis supplied)
Therefore in a case of this nature, a purposive approach is necessary.
In K.V. Muthu Vs. Angamuthu Ammal, , the question before the Supreme Court was whether a ""foster son"" would be a ""member of family"" in
relation to a landlord within the meaning of Section 2(6-A) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. A Division Bench of
this Court held that the ""foster son"" would, under a given set of facts, held to be a member of the landlord''s family. Aggrieved by the said decision,
the tenant had approached the Hon''ble Supreme Court of India by way of appeal. In paragraph Nos. 10, 11 and 12 it has been held as follows:
Apparently, it appears that the definition is conclusive as the word ""means"" has been used to specify the members, namely, spouse, son,
daughter, grandchild or dependant parent, who would constitute the family. Section 2 of the Act in which various terms have been defined, opens
with the words ""in this Act, unless the context otherwise requires"" which indicates that the definitions, as for example, that of ""family"", which are
indicated to be conclusive may not be treated to be conclusive if it was otherwise required by the context. This implies that a definition, like any
other word in a statute, has to be read in the light of the context and scheme of the Act as also the object for which the Act was made by the
legislature.
While interpreting a definition, it has to be borne in mind that the interpretation placed on it should not only be not repugnant to the context, it
should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or
was likely to defeat the purpose of the Act has to be ignored and not accepted.
Where the definition or expression, as in the instant case, is preceded by the words ""unless the context otherwise requires"", the said definition
set out in the section is to be applied and given effect to but this rule, which is the normal rule may be departed from if there be something in the
context to show that the definition could not be applied.
Ultimately the Supreme Court held that the term ""family"" in its broader sense, may include the persons who are not connected by blood depending
upon the context in which the word is used and ultimately held that the
foster son"" also maintained an application for eviction of the tenant.
It was also argued by Mr. R. Muthukumaraswamy, learned senior counsel that the expression ""unless the context otherwise requires"" used in
the TRAI Act as well as the Interconnection Regulations and the provisions should be read to give effect to the object of the Act unless there is a
specific exclusion. While the expression ""unless the context otherwise requires"" stated in a provision came up for consideration before the Supreme
Court in Ramesh Mehta Vs. Sanwal Chand Singhvi and Others, . The question that arose was whether in counting ""the whole number of members
for Municipal Board"" in terms of Rule 3(9) of the Rajasthan Municipalities (Motion of No-Confidence against Chairman/Vice-Chairman) Rules
1974, nominated members have to be taken into consideration. In paragraph Nos. 27 and 31 it has been held as follows:
A definition is not to be read in isolation. It must be read in the context of the phrase which would define it. It should not be vague or
ambiguous. The definition of words must be given a meaningful application; where the context makes the definition given in the interpretation clause
inapplicable, the same meaning cannot be assigned.
A subordinate or delegated legislation must also be read in a meaningful manner so as to give effect to the provisions of the statute. In selecting
the true meaning of a word regard must be had to the consequences leading thereto. If two constructions are possible to adopt, a meaning which
would make the provision workable and in consonance with the statutory scheme should be preferred.
Ultimately, the Supreme held that only members with the voting right are entitled to participate in the proceedings and not the nominated members.
In our considered view, the submission of Mr. R. Muthukumaraswamy in this regard is not applicable to the provision in view of our
discussion. A careful reading of Tolaram Relumal''s case, K.V. Muthu''s case and Ramesh Mehta''s case referred to above would show that the
legislative purpose must be noted and the statute must be read as a whole.
Obviously, the definition of service provider u/s 2(1)(j) of the TRAI Act and the Regulation 2(n) of the Interconnection Regulations is not the
same. While reading both the definitions, the definition of service provider under the Regulation includes not only the Government as a service
provider and a licensee, but it also includes any broadcaster, multi system operator, cable, distributor of TV channels. The power u/s 36 of the Act
to make Regulations is available to the authority only to carry out the purpose of the Act. When the definition of a service provider includes only
the Government as service provider and a licensee, by virtue of Regulation, that definition cannot be expanded and if such expansion is allowed,
that would defeat the very definition of the service provider under the Act. It is well settled law that the regulations or the rules under a particular
enactment should be in conformity with the provisions of the Act and if any of such regulation is inconsistent, the provisions of the Act must be
preferred and applied. We may also refer to the observations of the Supreme Court as to how the regulations framed under a particular enactment
should be construed in case of conflict between the Act and the Regulations or Rules. In Kunj Behari Lal Butail and Others Vs. State of H.P. and
Others, , the Supreme Court has observed as follows:
A delegated legislation must conform to the provisions of the statute under which it is framed and that it must also come within the scope and
purview of the rule-making power of the authority framing the rule and in the event either of these two conditions are not fulfilled, the rule so framed
would be void. As discussed earlier, the impugned Regulations do not contravene any one of the conditions inasmuch as Section 32 of the Act
clearly empowers the Council to make regulations generally to carry out the provisions of the Act and thus they come within the scope and purview
of the power of the authority framing the Regulations. The Regulations also conform to the provisions of the Act and are not in excess of the
authority of the Council as no essential legislative function has been delegated to the State Government.
In Paul Enterprises and Others Vs. Rajib Chatterjee and Co. and Others, , the question arose with regard to the meaning of the term
unemployed youth"" stated in an advertisement issued pursuant to an ""excise policy"" of the State of West Bengal, the Calcutta High Court held that
the Respondents therein were to be considered as ""unemployed youth"" in terms of the above said advertisement. In paragraph Nos. 24, 26 and
27, it has been held as follows:
In a situation of this nature, the interpretation clause should be given a contextual meaning. It is not exhaustive. It is trite that when a statutory
enactment defines its terms, the same should govern what is proved, authorised or done under or by reference to that enactment. It is also trite that
all statutory definitions have to be read subject to the qualification variously expressed in the interpretation clause, which created them.
In State of Maharashtra and Another Vs. B.E. Billimoria and Others, Court observed: (SCC p. 349, para 32)
It is well settled that the provisions of the statute are to be read in the text and context in which they have been enacted. It is well settled that in
construction of a statute an effort should be made to give effect to all the provisions contained therein. It is equally well settled that a statute should
be interpreted equitably so as to avoid hardship.
In P. Kasilingam and others Vs. P.S.G. College of Technology and others, this Court held: ( SCC p. 356, para 19)
19.... A particular expression is often defined by the legislature by using the word ''means'' or the word ''includes''. Sometimes the words ''means
and includes'' are used. The use of the word ''means'' indicates that ''definition is a hard-and-fast definition, and no other meaning can be assigned
to the expression than is put down in definition''. (See P. Kasilingam and others Vs. P.S.G. College of Technology and others, ; Punjab Land
Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, The word ''includes''
when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural
import but also those things which the clause declares that they shall include. The words ''means and includes'', on the other hand, indicate ''an
exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions''.
Though Regulation 2(n) defines the cable TV operators and distributors of TV channels including a broadcaster, that provision cannot be made
applicable to the Defendants who are not service providers as defined u/s 2(1)(j) of the Act, as the regulations cannot expand the provisions of the
Act. It is a cardinal principle in general that the provisions contained in the Act are superior and higher to the Regulation framed under the
provisions of that Act even if there is any expanded meaning of a provision is given in the regulation. In that context, the submission that the
Interconnection Regulations of 2004 would come to the rescue of the Defendants to be considered as service providers cannot be accepted.
It is also argued that in view of the TRAI Act, the provisions of the Copyright Act cannot be enforced. In the wake of the judgment of the
Supreme Court, we cannot read both the Acts in that manner and come to a conclusion that the subsequent TRAI Act would take away the power
of civil Court to entertain a suit filed for infringement of copyright. Both the Copyright Act as well as the TRAI Act operate in the respective field.
Whereas the Copyright Act deals with the ownership of the copyright and in case of infringement of that right, to enable the copyright owner to
approach the civil Court seeking for injunction and other remedies, the TRAI Act confines itself to the disputes between the parties enumerated u/s
14 of that Act. In case if a dispute does not fall u/s 14, the provisions of that Act are not available to a person even if that person falls under the
category of licensee or service provider, as the case may be. As this Court should read the enactments keeping in mind the statement of objects
and reasons for which such enactments are made, we do not find any conflict or repugnancy between the two enactments. Further, if such
interpretation is made, it would lead to a drastic result, as the ""broadcast reproduction right"", which is a special copyright, the owner of such right
has to necessarily go before the TDSAT even in cases of infringement and piracy. We may also mention that the TRAI Act does not include the
dispute relating to the infringement of copyright as well as piracy. We may also point out that there is no specific exclusion of this Act to invoke the
provisions of Section 15 of TRAI Act to bar the civil Court.
When there are two provisions in a statute which are in conflict with each other such that, both of them cannot stand, they should, if possible be
so interpreted that effect can be given to both, and that a construction which renders either of them inoperative and useless should not be adopted
except as the last resort and it is known as the rule of harmonious construction.
While interpreting two inconsistent or obviously repugnant provisions of an Act, the Court should make an effort to so interpret the provisions
as to harmonise them so that the purpose of the Act may be given effect to and both the provisions may be allowed to operate without rendering
either of them redundant.
Interpretations are to be made to salvage a legislation to achieve its objective and not to let it fall merely because of a possible ingenious
interpretation. It is also a settled position of law that where a provision is capable of one of two interpretations, the interpretation which validates
rather than one which may invalidate a provision applies.
There might be some conflict between the rules and the provisions of the Act. There may also be a conflict sometimes between two Sections to
be found in the same Act. In such circumstances, Courts have to try and reconcile them as best it may. If it cannot be done, the Courts have to
determine which is the leading provision and which the subordinate provision and which must give way to the other. That would be so with regard
to the enactment and with regard to rules which are to be treated as if within the enactment. Even if there be any conflict between the provisions, it
is the duty of the court to harmonize the construction of statute.
As per the Rules of Statute and Interpretation as stated supra, in the event of conflict between the rules and provisions of the Act, Courts have
to try and reconcile them at best it may and even if there be any conflict between the rules and provisions, it is the duty of the Court to put
harmonious construction.
In procedural matters also if there is a conflict in construction, then construction that maintains rather than drastic equilibrium is to be adopted.
In this context, we may also observe that the Court must make an attempt for a best possible interpretation in respect of the two provisions,
namely, Section 2(1)(j) of TRAI Act and Regulation 2(n) of the Interconnection Regulations and if no reconciliation is possible, then it should
adopt a harmonious construction which would serve the purpose and object of the Act. If the said principle of harmonious construction is adopted,
the Defendants do not come within the definition of ""service provider"" as defined under the Interconnection Regulations which had been framed in
exercise of powers conferred u/s 36 of the TRAI Act.
The sum and substance of the submissions made on behalf of the Defendants is that since the Defendants come within the definition of service
provider, in terms of Section 14(a)(ii) of the TRAI Act, the TDSAT is competent to adjudicate any dispute between two or more service
providers viz., the Plaintiff''s and the Defendants and hence the suit is not at all maintainable and consequently the order of ad-interim injunction
granted against them is liable to be vacated.
Apart from the issue relating to the exclusion of civil court''s jurisdiction, one more submission is also made with regard to the Regulation 4.1
and 4.2 of the Interconnection Regulations. Regulation 4 provides for disconnection of TV signals and as per the explanation to Regulation 4, a
distributor of TV channels is yet to be authorized if there exists any agreement between broadcaster including his/her agency permitting distribution
of the broadcasting service by the distributor of TV channels, either through the written agreement or through the oral agreement. Consequently, no
notice would be required if there is no agreement in written or oral permitting the distribution of the broadcasting service.
Heavy reliance was placed upon by the learned senior counsel appearing for the Defendants on the Explanatory Memorandum in Annexure A
to Interconnection Regulations. Explanatory Memorandum as appended to the said Regulation speaks about the reasons for framing of the said
Regulation. Clause No. 18 of the Explanatory Memorandum says ""Broadcasters have suggested that this requirement of notice period (for
disconnection of signals) should be exempted when disconnection occurs for piracy and Copyright violation and violation of the non-financial terms
and conditions of the interconnect agreement. In the case of unauthorized retransmission of TV channels, it may be necessary for Broadcaster or
Multi-System Operator to disconnect signals of TV channels without giving one month notice. In such cases the Authority has decided that after
giving a notice for two working days, the signals may be disconnected.
The said memorandum has been taken into consideration in Regulation No. 4.1 of Interconnection Regulations 2004. Proviso to the Regulation
4 says that in case a distributor of TV channel is retransmitting signals for which he/she is not authorized and thereby affecting the commercial
interest of the concerned broadcaster or multi-system operator, the notice period shall be two working days giving reasons to the concerned
distributor of TV channel for such action.
Explanation to Regulation 4.1 says that no notice would be required if there is no agreement, written or oral, permitting the distribution of the
broadcasting service.
Regulation 4.2 says that the Broadcaster/multi-system operator shall inform the consumers about any dispute to enable them to protect their
interest and hence notice to discontinue the signal shall also be given in two local newspapers in case the distributor of TV channels is operating in
local area and in two national papers in case the distributor of TV channels is providing services in a wide area. In terms of the said Regulations,
Plaintiff''s have given such a notice.
A careful analysis of Regulation 4 of Interconnection Regulations, 2004 would lead to the only inference that the said provision is intended
merely for end-line consumers viz., TV viewers. If the broadcast is suddenly disconnected, the ultimate persons aggrieved are the consumers and
therefore, sufficient protection is given to them even if a multi-system operator unauthorizedly distributes TV signals. As already indicated above, in
the event of unauthorized broadcast/distribution of signals, notice period is restricted to two working days. Hence both the above provisions make
no difference as to the dispute pending in civil Court.
ON MERITS:
Be that as it may, we are not inclined to accept the submission of the respective learned senior counsel for the Defendants even on facts. For
the purpose of TDSAT to entertain a dispute and to determine the same, such dispute must be a dispute covered under the provisions of TRAI
Act. In case where there is an agreement between the Plaintiff and Defendant in respect of a particular area for broadcasting and any dispute arises
out of that agreement, certainly the provisions of Section 14 can be applied. The expression ""any dispute"" employed in Section 14 has to be
construed to any dispute which is covered under the provisions of the Act and not otherwise. In case a dispute relates to the infringement of
copyright and piracy in respect of areas not covered under the agreement, certainly the civil Court''s jurisdiction is not ousted/barred, as such
dispute will not fall u/s 14 for the TDSAT to entertain a petition and determine the same. On the given facts and circumstances of the case, the
service agreement was only in respect of Kancheepuram Town, Tiruvallur District and not the other parts of the Kancheepuram district and as well
as Tiruvannamalai district. It is the specific grievance of the Plaintiff''s that after returning the decoders handed over to the Defendants pursuant to
the service agreement, the Defendants illegally had been drawing the signals through their Avadi head-end and broadcasting the programmes to the
other areas not covered under the agreement. That apart, it is the case of the Defendants themselves that though the Defendants had signed the
agreement, the same was not typed and it was later on terminated as well. In the absence of any agreement in respect of the areas covered in the
suit, the Defendants cannot claim that those disputes are covered u/s 14(a)(ii) of the TRAI Act. In such circumstances, the only remedy available to
the Plaintiff''s is to approach the civil Court for enforcement of their right under the provisions of the Copyright Act which they did justifiably. The
jurisdiction of this Court to entertain such a suit is further strengthened by the provisions of Section 9 of the Code of Civil Procedure, by which
provision the civil Courts shall try all suits unless specifically barred either expressly or impliedly. As on facts, Section 14(a)(ii) is not available to
the Defendants, they can rely upon Section 15 of the Act to contend that the suit is barred.
As the Defendants are neither the service providers nor executed valid agreements with the Plaintiff''s in respect of the areas in question for
drawing the signals and broadcasting the same to their cable TV operators, a suit for infringement of copyright is alone maintainable. Moreover,
when a claim is made for rejection of plaint, the averments in the plaint alone are to be considered and the Court cannot go into the defence taken.
Whatever the dispute raised in respect of the grievance over this Court to entertain the suit, it has to be decided by letting in evidence. To consider
the exclusion of jurisdiction of the civil Court, normally two tests are adopted. The first test being whether the special statute excludes the
jurisdiction of the civil Court in clear and unambiguous words indicating that intention and another test is whether the special statute provides for
remedy to a person who may be aggrieved on a dispute covered under that provision. In this context, the scope of the Act should be unambiguous
and clear. When there is any scope for interpretation as to the particular provision, the general rule as to the power of the civil Court to entertain
and try a suit could be traced to Section 9 of the Code of Civil Procedure. From a reading of the provision of Section 14, we cannot find that the
said provision either expressly or by necessary implication excludes the jurisdiction of the civil Court, particularly when the parties to the dispute
are not covered either under the categories of ''licensee'', ''service provider'' and so on. In Life Insurance Corporation of India Vs. M/s. Indian
Automobiles and Co. and others, , the Supreme Court while considering a similar question has observed that ""the right to raise a question under
the general law cannot be taken away without specific statutory provision and the extensive jurisdiction conferred on civil Court u/s 9 of Code of
CPC should not be curtailed without specific statutory warrant or except on some clear principle.
It is the specific case of the Plaintiff''s that the Defendants had been unauthorisedly and illegally transmitting the signals of Sun TV, KTV, Sun
Music, Gemini TV and Teja TV by pirating it in a systematic and scientific manner. It is the further stand of the Plaintiff''s that though the
Defendants had returned the decoders for Kancheepuram, they continued to supply signals of the Plaintiff''s'' channels to the operators illegally in
Kancheepuram and Tiruvannamalai Districts and in spite of the fact that they had not executed any subscription agreement with the authorized
distributor for availing the signals for the said channels.
A perusal of the counter and the averments made in the application for rejection of the plaint is primarily harping upon the point of jurisdiction
on the ground that only TDSAT constituted u/s 14 of the TRAI Act has jurisdiction to entertain the said dispute in terms of Section 14(a)(ii). It is
the further case of the Defendants that TDSAT has also entertained two applications filed by the Defendants and in one case granted interim orders
and in order to get over the same, the Plaintiff''s have filed the vexatious suit alleging infringement of copyright.
It is also the case of the Defendants that as per proviso to Section 2(1)(k) of the TRAI Act, Central Government may notify other service to
be telecommunication service including broadcasting services and subsequently in exercise of powers u/s 36 of the TRAI Act. The
Telecommunication (Broadcasting and Cable services) Interconnection Regulations, 2004 came into existence which enlarges the definition of
Multi-System Operator. Therefore, any dispute pertaining to distribution/transmission of service would come into the purview of TDSAT. All these
submissions"" actually lack merit for our foregoing reasons.
As far as the last contention as to estoppel is concerned, we may say that all the proceedings initiated before the TDSAT were in respect of
the dispute allegedly arose out of the agreements. As the present dispute does not relate to either the agreement or the areas covered under the
agreement, that contention is liable to be rejected.
The learned single Judge has relied on the judgment of a Division Bench of this Court in New Galaxy Netcom Vs. S.C.V., . In that judgment,
the Division Bench has held that Section 2(1)(j) of the TRAI Act includes only the Government and a licence u/s 4(1) of the Indian Telegraph Act
as service provider. We find no reason to take a different view than one taken by the Division Bench. In this case, the Defendants are neither a
''licensee'' under the Indian Telegraph Act nor a ''service provider''. The learned single Judge has therefore applied the said judgment rightly and
justifiably.
For all the foregoing reasons, we find no infirmity in the order questioned in these appeals dismissing the applications for rejection of plaints.
Accordingly, we affirm the order of the learned single Judge.
Insofar as the grant of injunction, no serious arguments were advanced by the Defendants. Nevertheless, the learned Judge has rightly found
that the Defendants had prime facie indulged in piracy. The learned Judge has also relied on the documents filed by the Plaintiff''s in this regard. The
materials available, prima facie, show for the grant of injunction against the Defendants, which the learned Judge has correctly done and ordered.
Hence, we are not inclined to interfere in the order granting injunction.
In fine, we find absolutely no merit in these appeals and they deserve to be dismissed. Accordingly, all the original side appeals are dismissed.
Consequently, M.P. Nos. 2 of 2009 are also dismissed. No costs.