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Judgment
The petitioner has filed the present writ petition
challenging the action of the respondents whereby the private
respondents are using the song "Hus Mat Pagali Pyar Ho
Jayega" written by the petitioner without his permission.
The petitioner is engaged in the work of writing and also
writing songs for drama, TV shows and films. The creative
work which has been done by the petitioner and various songs
and story which had been penned by him was registered with
respondent No.2. The petitioner is a member of Writer
Association now known as Screen Writer''s Association.
Respondent No.2 is statutory body registered under the Trade
Union Act, 1926. All the writers, screen writers, poets get
their song, story, scripts etc registered with films writer
association. If any person steals or uses the original first
work of the writer, then the complaint is made to respondent
No.2. The registration of the petitioner is renewed from time
to time. The Central Board of Film Certification or Indian
Censor Board is a regulatory body in India to review films
T.V. Serials, T.V. Commercials and various visual materials.
It is under the Ministry of Information and Broadcasting,
Government of India. Its task is to regulate the public
exhibition of film under the provisions of Cinematograph
Act, 1952 (hereinafter referred to as ''the Act of 1952''). Films
can be publically exhibited in India only after they are
certified by board. The petitioner wrote a song with
Mukhada "Hus Mat Pagali Pyar Ho Jayega". This song was
first created by the petitioner and this song is his authoritative
work. The said song written by the petitioner was registered
with Writer Association on 09/02/2016.
The petitioner submitted an application to respondents
No.2 and 3 to take action against the private respondents for
using/stealing his original first creating work i.e. song written
by him with title "Hus Mat Pagali Pyar Ho Jayega", however,
no action has been taken to restrain the telecast of said song.
The petitioner is living in Jabalpur. While he was at
Jabalpur, he he heard about the movie ''Toilet-Ek Prem Katha''
in media. The petitioner also learnt that said movie is due
for release before public on 11th August, 2017. As the
release date of the film was reaching on 11 th August, 2017,
many advertisement of the movie, its story, script and songs
were displayed in the media. While going through the
material published and broadcasted in Media, the petitioner
learnt that one of the song which has been written by him is
being used in the film. The song of the petitioner with
Mukhda "Hus Mat Pagali Pyar Ho Jayega" was main song in
the film and this Mukhda was repeated in the song in many
times. When the petitioner heard about the said song, he gave
notice to Viacom 18 Media i.e. respondent No.4. The
petitioner has also filed a complaint before Film Writers
Association, but no action has been taken by the Film Writers
Association till date. The petitioner has also preferred one
complaint before the Superintendent of Police, Jabalpur,
seeking appropriate action against the private respondents in
regard to piracy of song penned by the petitioner. The
petitioner received reply sent to him on behalf of respondent
No.4 on 19/07/2017 in which respondent No.4 has denied
that the petitioner is having any right over the said song.
Being aggrieved the inaction of the respondents, the
petitioner has filed the present writ petition.
Respondents No.4 and 8 have filed their reply.
Respondent No.4, in its reply, has raised a preliminary
objection regarding maintainability of this writ petition,
firstly on the ground that the petitioner has an alternative
remedy of filing a civil suit under the Copyright Act, 1957;
secondly, on the ground that the petition involves a disputed
question of fact which cannot be decided by this Court by
exercising the powers under Article 226 of the Constitution
of India; thirdly, on the ground that respondent No.2 against
which the petitioner has sought a relief, is not amenable to
writ jurisdiction of this Court as respondent No.2 is neither a
State nor an instrumentality as contemplated under Article 12
of the Constitution of India; fourthly, the writ of mandamus
cannot be issued in the present case.
Learned senior counsel appearing on behalf of the respondents No.4 and 8 argued on the point of preliminary
objection raised by them in the return. Firstly, learned senior
counsel for the respondents No.4 and 8 submitted that the
petitioner has an alternative remedy of filing civil suit under
the Copyright Act . Section 55 of the Copyright provides for
civil remedies for infringement of copyright. As per this
section, 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. Learned senior counsel further submitted that as per
Section 62 of the Act, District Court will have jurisdiction in
respect of the infringement of copyright in any work shall be
instituted before the District Court. On the basis of these two
sections, learned senior counsel submitted that the petitioner
is having a remedy of filing a civil suit before the District
Court. He further submitted that whether the said song is an
original song of the petitioner or not is a disputed question of
fact which can be decided only after recording the evidence
and, therefore, as the petition involves disputed question of
fact, the writ petition is not maintainable. He further argued
that respondent No.2 is a Screen Writer Association which is
registered under the Trade Union Act, therefore, neither a
State nor an Instrumentality as contemplated under Article 12
of the Constitution of India, thus, the writ petition is not
maintainable against the said respondent. He further
submitted that respondents No.4 and 8 are in no way bound
by the orders or decisions of respondent No.2 and that any
fundamental right of the petitioner or any legal right of him
has been violated by the respondents, therefore, the writ
petition is not maintainable. He further argued that no
fundamental or any statutory right has been infringed by the
respondents. He also argued that the writ of mandamus under
Article 226 of the Constitution of India can be issued only
when there is a demand regarding violation of any
fundamental or legal right. In the present case, as the
petitioner has not made any demand before filing the said writ
petition, therefore, a writ of mandamus cannot be issued in
the present case. He further contended that before filing of
this writ petition, the respondents have executed four
agreement with different persons with regard to the said song.
However, the petitioner has not challenged the said
agreements.
Learned senior counsel for the petitioner has orally
opposed the prayer of learned senior counsel for the
respondents No.4 and 8 that the writ petition be dismissed on
the ground of availability of alternate remedy. He submitted
that Article 19 of the Constitution of India provides for
protection of certain rights regarding freedom of speech etc.
Clause-(1)(a) of Article 19 of the Constitution of India deals
with freedom of speech and expression. He further
submitted that every citizen has a right to freedom of speech
and expression and the State Government can impose
reasonable restriction under Article 19(2) of the Constitution
of India. In light of the said article, learned senior counsel for
the petitioner submitted that by the impugned action of the
respondents, right of speech and expression has been violated
and, therefore, the present writ petition is maintainable. He
further submitted that as per Section 3 of the Act of 1952, the
Central Government has constituted a board of film
certification. Section 4 of the Act of 1952 provides for
examination of films by which the Board examines the film
before issuing the certificate. He also submitted that as
respondent No.3 has been constituted under the Act of 1952,
therefore, amendable to writ jurisdiction. Learned senior
counsel also argued that exhibition of film is a public duty
and as the respondents are discharging the public duty,
therefore, the writ petition is maintainable. He relied upon
Section 5B of the Act of 1952 which provides for principles
of guidance in certifying films. In light of aforesaid, he
submitted that the film cannot be certified for public
exhibition if, in the opinion of the authority competent to
grant the certificate, the film or any part of it is against the
interest of security of the State, friendly relations with foreign
States, public order, decency or morality. He submitted that
stealing of song by the respondents is against the morality.
Learned senior counsel further submitted that song in
question is his first creation. The song is authoritative work
of the petitioner and the same has been copied and stolen by
the private respondents without his permission and consent,
therefore, the petitioner is deprived of his fundamental right
under Article 21 of the Constitution of India and legal right
under Section 57 of the Copyright Act.
I have heard learned counsel for the parties and perused
the record. From perusal of the record, it reveals that the
petitioner has filed the present writ petition praying for the
following reliefs :
"7.1 Hon''ble Court may kindly issue writ/orders to respondents for removing the song "Hus Mat Pagali Pyar Ho Jayega" from film ''Toilet Ek Prem Katha''.
7.2 That, Hon''ble Court may kindly issued writ and direction to statutory bodies to stop the film makers from copying, stealing intellectual property of other writers and poets. Presently, statutory body like Censor Board of India which is working under Ministry of Information and Broadcasting is only issuing certificate and doing censorship work but, such statutory bodies do not protect the intellectual works of writer and poets and also does not see to it that whenever any biography is made then there should be consent or purchase of rights from the person whose life is depicted in the film.
7.3 Hon''ble Court may please to direct the respondent No.1 and 2 to grant protection to the songs penned by the petitioner so that in future no one can adhere to infringe the fundamental rights of petitioner.
7.4 That, Hon''ble Court may kindly issue writ/order/direction which it deems fit under the facts and circumstances of the case."
The petitioner has filed this petition mainly on the
ground that the petitioner is the original author of song "Hus
Mat Pagali Pyar Ho Jayega" from film ''Toilet Ek Prem
Katha''. The petitioner further stated that the said song has
been registered with respondent No.2 and certificate has also
been issued of that song in favour of the petitioner as
Annexure-P/3. The main contention of the petitioner is that
the said song is being exhibited by respondent No.4 in their
forthcoming film ''Toilet Ek Prem Katha without his content
and permission. The petitioner has already served notice to
respondent No.4 through his lawyer on 05/07/2017, however,
no action has been taken in the matter, therefore, this writ
petition has been filed. The main contention of petitioner is
that due to exhibition of the said song in the film, his
copyright is being infringed. Section 55 of the Copyright Act
provides for civil remedies for infringement of copyright.
Section 55 of the Copyright Act reads as under :
"55. 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 entitle to all such remedies by way of injunction, damages, accounts and otherwise as are or many be conferred by law for the infringement of a right :
Provided that if the dependent proves that at the date of the infringement he was not aware and has 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 dependent 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 published, or, in the case of an artistic work, appear 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) The costs of all parties in any proceeding in respect of the infringement of copyright shall be in the discretion of the Court."
As per the said section, mere copy of any copyright
work has been infringed, then the owner of the copyright
shall be entitled to all remedies by way of injunction,
damages, accounts and otherwise as are or may be conferred
by law for infringement of a right.
Section 62 of the said Act provides for jurisdiction of
the Court over matters arising under this Chapter. Section
62 of the said Act reads as under :
"62. Jurisdiction of court over matters arising under this Chapter.- (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction. (2) For the purpose of sub-section (1), a "district court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain."
As per the said section, every suit or civil proceeding
arising under this Chapter in respect of the infringement of
the copyright in any work, it shall be instituted in the District
Court having jurisdiction. Thus, the District Court is having
jurisdiction in the matter when there is infringement of
copyright, therefore, the writ petition is not maintainable on
the ground of availability of the alternate remedy. The Apex
Court in the case of Dhanyalakshmi Rice Mills and others
Vs. The Commissioner of Civil Supplies and others,
reported in (1976) 4 SCC 723, in para-28 has held as under :
"28. .......................................................... ..................................................................... A mandamus will go where there is a specific legal right. Mandamus may be refused where there is an alternative remedy which is equally convenient, beneficial and effectual. If there is no other means of obtaining justice, the writ of mandamus is granted to enable justice to be done. Those are cases where justice can not be done unless a mandamus is to go. R. V. Bristol and Exeter Railway Co. is an authority for the proposition where the Corporation could be compelled to pay a sum of money pursuant to an agreement which could not be enforced by action because the agreement was not under seal.
This Court in Lekh Raj v. Deputy Custodian and Har Shankar & Ors Vs. Deputy Exercise and Taxation Commissioner held that contractual obligations cannot be enforced through a writ of mandamus."
It is also noted that whether the petitioner is author of
song "Hus Mat Pagali Pyar Ho Jayega" or not is a pure
question of fact which can be decided only after recording the
evidence by the District Court. Thus, as the writ petition
involves the disputed question of fact, therefore, also the
present writ petition is not maintainable. The Apex Court in
the case of Noble Resources Ltd. Vs. State of Orissa and
another, reported in (2006) 10 SCC 236, in para-18 has held
as under :
"18. It may, however, be true that where serious disputed questions of fact are raised requiring appreciation of evidence, and, thus, for determination thereof, examination of witnesses would be necessary, it may not be convenient to decide the dispute in a proceeding under Article 226 of the Constitution of India."
From perusal of the reliefs which are claimed by the
petitioner, it reveals that the petitioner has claimed the reliefs
which are general in nature. He prays for issuance of
direction to the respondents i.e. issuance of writ of
mandamus. For issuance of writ of mandamus, the petitioner
is required to first make a demand before the authority
regarding violation of his legal and fundamental right, then
only he can approach to this Court. However, in the present
case, from perusal of the record, it reveals that the petitioner
has served a legal notice to respondent No.4 who is a private
body and no demand has been made against the statutory
body/official respondents, therefore, no writ of mandamus
can be issued in the present case. The Apex Court in the
case of Amrit Lal Berry Vs. Collector of Central Excise,
New Delhi and others, reported in (1975) 4 SCC 714 in
para-25 has held as under :
"25. In the petition of K.N. Kapur and others, we do not even find an assertion that any representation was made against any violation of a petitioner''s right. Hence, the rule recognised by this Court in Kamini Kumar Das Choudhury Vs. State of W.B., that a demand for justice and its refusal must precede the filing of a petition, asking for direction or writ of mandamus, would also operate against the petitioners."
The Apex Court in the case of Union of India and
another Vs. S.B. Vohra and others, reported in (2004) 2
SCC 150, in para-13 has held as under :
"13. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted."
Although learned senior counsel for both the parties
have also argued the matter on merit, but, as this Court is
dismissing the writ petition on the ground of preliminary
objection raised by the respondents, this Court, therefore,
does not think it proper to decide the case on merit. Thus, in
light of aforesaid discussion, this Court does not find any
reason to interfere into the writ petition.
Accordingly, the writ petition is dismissed as not
maintainable. There shall be no cost.