Case: Entertainment Network (India) Ltd. and Ors Vs. Super Cassette Industries Ltd. and Ors.

not Clause (b). 101. Mr. Divan relied on Indian Administrative Services (SCS) Association, U.P. and Ors. v. Union of India and Ors. 1992(3)SCALE126 wherein it has been held that: 9. Thus it is settled law that where the intention of statutory amendment is clear and expressive, words cannot be interpolated. In the first place they are not, in the case, needed. If they should be added, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the legislature intended to convey. Where the meaning of the statute is clear and sensible, either with or without omitting the words or adding one, interpolation is improper, since the primary purpose of the legislative intent is what the statute says to be so. If the language is plain, clear and explicit, it must be given effect and the question of interpretation does not arise. If found ambiguous or unintended, the court can at best iron out the creases. Any wrong order or defective legislation cannot be righted merely because it is wrong. At best the court can quash it, if it violates the fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundamental laws or gross miscarriage of justice. It could thus be held that the legislature intended that the First Amendment Rules would operate prospectively from February 3, 1989, the date of their publication in the Gazette of India. Its policy is explicit and unambiguous. Rule 3(3)(ii) intended to remedy the imbalances while at the same time the proviso intended to operate prospectively to avert injustice to the officers recruited/promoted earlier than the officer promoted later to that date. The proviso carved out an exception to ward off injustice to the officers that became members of I.A.S. earlier to those dates. 102. In this case, however, the meaning of the Statute is neither clear nor sensible. It is a statute where a purposive construction is warranted. It is a case where Sub-section (2) should be kept confined to clause (a) for that purpose. The statute has to be read down. It is not a case of improper interpolation so as to take away a primary purpose of the legislative intent. It is expedient to give effect to the intent of the statute. This itself says that creases can be ironed out. While undertaking the said exercise, the courts endeavour would be to give a meaning to the provisions and not render it otiose. We are, therefore, of the opinion that Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof. PRINCIPLES OF VALUATION 103. We have, moreover, been called upon to lay down the principles of evaluation. We decline to do so. We have been taken through various judgments of different jurisdictions. We have noticed hereinbefore that the scheme therein is different. The Tribunal exercises a limited jurisdiction in India. Different cases are required to be considered on its own merits. What would be reasonable for one may not be held to be reasonable for the other. The principles can be determined in a given situation. The Bombay High Court has remitted the matter back to the Board for the said purpose. We endorse the views of the Bombay High Court. DISCRETIONARY JURISDICTION 104. The other question which arises is as to whether the discretionary jurisdiction should have been exercised in favour of the appellant. It was urged that keeping in view the fact that ENIL infringed the copyright, it was not entitled to an injunction. Reliance has been on Phonographic Performance Ltd. v. Maitra (1998) Fleet Street Reports 749 at 770- 773. The general principle of grant of injunction came up for consideration before the Court of Appeal. Therein, it was held that an owner may exercise and exploit his proprietary right by licensing some and not others. He may charge whatever he wishes. Such is not the position in India. Therein, the defendant did not take part in the proceedings. It was, inter alia, from that angle, held that the court could still exercise discretion. The court of appeal held: Use of an injunction by PPL to obtain money to obtain money to which they are not entitled would be an abuse, but there is no evidence that that ever occurs. Where unauthorized use of PPLs copyright is taking place, we do not believe it is an abuse to refuse to licence that copyright without an appropriate payment for past use and an agreement for future use. Nor do we consider it an abuse for PPL to require compliance with an injunction either by the person refraining from using the repertoire or by payment for such use that has taken place and will take place. Apart from the fact that we are not dealing with a case where an order of injunction is required to be issued; as indicated hereinbefore, the question before the Board was as to whether there was an abuse in the sense that unreasonable amount was being claimed by way of royalty. CONCLUSION 105. As it was a case of abuse, the Board had the jurisdiction to entertain any application for grant of compulsory licence. How far and to what extent appellant has infringed the right of the respondent is a matter which may be taken into consideration by the Board. A suit was filed and injunction was granted. Apart from the fact that the appellant offered to take a license held negotiations with the respondents in the suit as soon as it came to know that Super Cassettes is not a member of PPL, it gave an undertaking. Each case must be considered on its own facts. 106. However, we do not approve the manner in which the Board has dealt with the matter. It has refused to examine the witnesses. It took up the matter on a day for hearing which was fixed for production of witnesses.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]39. There cannot be any doubt whatsoever that an artistic, literary or musical work is the brain-child of an author, the fruit of his labour and, so, considered to be his property. A copyright, however, unlike a trade mark is a right created under the Act as is evident from Section 16 thereof. When an author of a copyright and other claims a copyright, it is subjected to the provisions of the Act. The rights and obligations of the author ought to be found out within the four corners of the Act. It is not necessary to dilate more upon these aspects of the matter as the object behind enacting the Act is absolutely clear and explicit. It creates a monopoly in favour of the author. Copyright also creates a monopoly in favour of the copyright society. What requires protection is unlawful reproduction of the authors work by others. It is the long period which encourages the authors to create works of literature, music and art.The definitions of the term `broadcast as also `sound recording must be given a wide meaning. Clause (a) of Section 13 protects original work whereas Clauses (b) and (c) protect derivative works. It provides for commercial manifestation of original work and the fields specified therein. Clause (a) of Sub-section (1) of Section 14 deals with original work. It is extremely broad. In contrast thereto, the copyright on films or sound recording work operates in restrictive field; they provide for a restrictive right as would appear from the provisions contained in Section 14(1)(e) of the Act.43. For a proper construction of the provisions, will it be necessary to keep in mind the difference between the right of the original work and right of sound recording? Should we also bear in mind that there are various forms of intellectual property rights. Section 16 provides that a right, inter alia, in respect of any work must be claimed only under and in accordance with the provisions of the Act unlike Trade Mark and passing off rights can be enforced even though they are not registered. It must also be noticed that whereas the term of a copyright in original literary, dramatic, musical and artistic works not only remains protected in the entire life time of the author but also until 60 years from the beginning of the calendar year next following the year in which the author dies, the term of copyright in sound recording subsists only for 60 years, but as indicated hereinbefore, the same would not mean that the right of an owner of sound recording is in any way inferior to that of right of an owner of copyright on original literary work etc.The statutory licences are required to be granted having regard to the various factors stated therein. Section 33 is a special provision which provides for registration of a copyright society.. It may, however, be necessary to consider that unlike other countries the broadcasting rights by themselves were introduced in India for the first time by inserting Section 37 in the year 1994. It is true that the rights of free-to-air broadcasters have not been dealt with in a specific legislation unlike some other jurisdiction. It may, however, be of some importance to note that Chapter VII deals with Copyright society, the concept whereof was incorporated in the Act so as to enable an author to commercially exploit his intellectual property by a widespread dispersal in a regulated manner. It for all intent and purport steps into the shoes of the author. The society grants license on behalf of the author, it files litigation on his behalf, both for the purpose of enforcement as also protection of the enforcement of his right. It not only pays royalty to the author but is entitled to distribute the amount collected by it amongst its members. Section 34 providing for administration of rights of owners by a copyright society for all intent and purport creates a virtual agency so as to enable the society to act on behalf of the owner. The civil remedies for infringement of copyright as envisaged under Section 55 of the Act can also be enforced by the society. The Scheme of the statute governing the field in other countries is vast and wide. The jurisdiction of the Tribunal is indisputably very wide. No such legislative changes have been made in India presumably because until recent times, the Copyright in musical work was owned by a cooperative society, namely, IPRS and PPL. The third party granting license on a prescribed fee of a musical work was contemplated under the Act. As a general rule for administering such copyrights, there are about 300 radio stations now. Monopoly in respect of sound recording is, as it appears from the tariff supplied to us by the respondent embrace within its field, Pop/Music Quizzes, Mobile DJ, Jukeboxes, Dance Teachers, Dance Centre/Studio, Exercise, Amateur Operatic & Dramatic Societies, Theatrical Productions, Temporary Camps/Shacks, Banquet Halls, Background Music- Guest Houses & Lodges, Hotels, Background Music- Public Houses & Cafes & Non AC Restaurants, Bankground Music - AC Restaurants, BARS, Background Music - Shops & Stores Premises, Background Music - Hairdressing Salons & Beauty Parlors, Background Music - Clinics, Background Music - Nursing Homes & Hospitals, Background Music - Factories & Offices/Banks, Background Music - Waiting Rooms/Reception Areas, Background Music- Telephone Music on hold, Puppet/Magic Shows, Background Music- Theatres, Background Music - Cinemas, Background Music- Museums & Art Galleries, Background Music- Ten Pin Bowling Centres/Bowling Alleys, Background Music- Amusement & Pleasure Parks, Background Music - Amusement Arcades, Background Music - Casinos, Background Music - Gymnasiums, Background Music - Swimming Pools.45. The right of the author of a copyright vis-à-vis the Society, thus, may be exercised in almost all walks of life from the `Radio Stations to a small `Hairdressing Salon.46. If the right of an author/society is so pervasive, is it necessary to construe the provisions under Section 31 of the Act having regard to the International Covenants and the laws operating in the other countries? The answer to the said question must be rendered in affirmative. Interpretation of a statute cannot remain static. Different canons and principles are to be applied having regard to the purport and object of the Act. What is essential therefore is to see that the expanding area in which the copyright will have a role to play is covered. While India is a signatory to the International Covenants, the law should have been amended in terms thereof. Only because laws have not been amended, the same would not by itself mean that the purport and object of the Act would be allowed to be defeated. If the ground realities changed, the interpretation should also change. Ground realities would not only depend upon the new situations and changes in the societal conditions vis-à-vis the use of sound recording extensively by a large public, but also keeping in view of the fact that the Government with its eyes wide open have become a signatory to International Conventions.52. However, applicability of the International Conventions and Covenants, as also the resolutions, etc. for the purpose of interpreting domestic statute will depend upon the acceptability of the Conventions in question. If the country is a signatory thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized. Where International Conventions are framed upon undertaking a great deal of exercise upon giving an opportunity of hearing to both the parties and filtered at several levels as also upon taking into consideration the different societal conditions in different countries by laying down the minimum norm, as for example, the ILO Conventions, the court would freely avail the benefits thereof. Those Conventions to which India may not be a signatory but have been followed by way of enactment of new Parliamentary statute or amendment to the existing enactment, recourse to International Convention is permissible.53. This kind of stance is reflected from the decisions in PUCL v. Union of India AIR1997SC1203 , John Vallamattom v. Union of India AIR2003SC2902 , Madhu Kishwar v. State of Bihar AIR1996SC1864 , Kubic Darusz v. Union of India 1990CriLJ796 , Chameli Singh v. State of U.P. AIR1996SC1051 , C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil [1996]1SCR1068 , Apparel Export Promotion Council v. A.K. Chopra (1999)ILLJ962SC , Kapila Hingorani v. State of Bihar (2003)IIILLJ31SC , State of Punjab and Anr. v. Devans Modern Breweries and Anr. (2004)11SCC26 and Liverpool & London S.P. & I Asson. Ltd. v. M.V. Sea Success I (2004)9SCC512 .54. Furthermore, as regards the question where the protection of human rights, environment, ecology and other second-generation or third-generation rights is involved, the courts should not be loathe to refer to the International Conventions.64. The underlying philosophy of the Copyright Act is that the owner of the copyright is free to enter into voluntary agreement or licenses on terms mutually acceptable to him and the licensee. The Act confers on the copyright owner the exclusive right to do the various acts enumerated in Section 14. An infringement of copyright occurs if one of those acts is done without the owners license. A license passes no interest, but merely makes lawful that which would otherwise be unlawful. The Act also expressly recognizes the notion of an exclusive license which is defined in Section 2(j). But, that does not mean, as would be noticed from the discussions made hereinafter, that it would apply in all situations irrespective of the nature of right as also the rights of others. It means a license which confers on the licensee, to the exclusion of all other persons (including the owner of the copyright) any right comprised in the copyright in a work. An exclusive licensee has specific rights under the Act such as the right to have recourse to civil remedies under Section 55 of the Act. This Scheme shows that a copyright owner has complete freedom to enjoy the fruits of his labour by earning an agreed fee or royalty through the issuance of licenses. Hence, the owner of a copyright has full freedom to enjoy the fruits of his work by earning an agreed fee or royalty through the issue of licenses. But, this right, to repeat, is not absolute. It is subject to right of others to obtain compulsory licence as also the terms on which such licence can be granted.CONSTRUCTION OF SECTION 31 OF THE ACT72. The broad requirements of Section 31 are as under:(a) The subject work must be an Indian work whose term of copyright is subsisting;(b) The Indian work must be one that has been published or performed in public;(c) The owner of the copyright in the work must have(i) refused to republish or allow republication of the work or have refused to allow the performance of the work and by reason of such refusal the work is withheld from the public; or(ii) refused to allow communication to the public by broadcast, of such work or in the case of a sound recording the work recorded in such sound recording, on terms which the complainant considers reasonable; and(d) The Copyright Board is satisfied that the grounds for refusal are not reasonable.73. Significantly, in between the Clauses (a) and (b), the word `or has been used. It must be read disjunctively and not conjunctively. Even otherwise, reading the said provision, conjunctively is not possible. Clause (a) refers to republication or allowing republication of the work, etc. Clause (b) refers to refusal to allow communication to the public in the case of a broadcast or in the case of the sound recording. What is the meaning of the word `refusal.The meaning of a word must be attributed to the context in which it is used. For giving a contextual meaning, the text of the statute must be kept in mind. An act of refusal depends upon the fact of each case. Only because an offer is made for negotiation or an offer is made for grant of license, the same per se may not be sufficient to arrive at a conclusion that the owner of the copyright has not withheld its work from public. When an offer is made on an unreasonable term or a stand is taken which is otherwise arbitrary, it may amount to a refusal on the part of the owner of a copyright.74. When the owner of a copyright or the copyright society exercises monopoly in it, then the bargaining power of an owner of a copyright and the proposed licensee may not be same. When an offer is made by an owner of a copyright for grant of license, the same may not have anything to do with any term or condition which is wholly alien or foreign therefore. An unreasonable demand if acceded to, becomes an unconstitutional contract which for all intent and purport may amount to refusal to allow communication to the public work recorded in sound recording. A de jure offer may not be a de facto offer. Although the term `work has been used both in Clauses (a) and (b) of Sub-section (1) of Section 31, the same has been used for different purpose. The said term `work has been defined in Section 2(y) in different contexts. It enumerates the works which are: (a) a literary, dramatic, musical or artistic work; (b) a cinematograph film; (iii) a sound recording. Thus, a literary work ex facie may not have anything to do with sound recording.75. There are indications in the Act particularly having regard to Sections 14(1)(a) and 14(1)(e) thereof that they are meant to operate in different fields. They in fact do not appear to be operating in the same field. Clause (a) refers to publication or republication of the work. It may be in print media or other medias. Clause (b), however, refers to broadcast alone. Sound recording is a part of it. Sub-clauses (i) to (vii) of Sub-clauses (a) of Sub-section (1) of Section 14 and Sub-clauses (i) to (iii) of Sub-clause (e) conferred different meanings of the word copyright. Whereas Clause (a) refers to work in general, Clause (b) refers to work recorded in such sound recording, which in turn means the recording of sounds from which such sounds may be reproduced regardless of the medium on which such recording is made or the method by which the sounds are produced. Clause (b) ex facie does not fit in the scheme of Clause (a).76. Interpretation of clause must be given effect to having regard to the limitations contained therein, namely, unless context otherwise requires.77. Communication to the public is possible by way of diffusion. Explanation appended to Section 2(ff) clearly shows the extensive meaning of the said term. Publication and republication of a work in general may be different from communication of a work recording in sound recording. The use of words `such work also assumes significance. The said words must be understood having regard to the fact that the sound recording is also a work. If it is accepted that voluntary licenses have been entered into by the owners with All India Radio and some other Radio Broadcasters, then it is sufficient for closing the doors on another person to approach the Copyright Board. One may as well say that if it is provided to a satellite channel or a space radio, the same also would subserve the purpose for refusing to grant an application under Section 31 of the Act.F.M. radios are played for every city. The word `work in the context of broadcast must be understood having regard to the fact that there are 150 F.M. licenses out of which about 93 are working. There are 300 broadcasters working in almost all the big cities in India. The word `public must be read to mean public of all parts of India and not only a particular part thereof. If any other meaning is assigned, the terms `on terms which the complaints considers reasonable would lose all significance. The very fact that refusal to allow communication on terms which the complainant considers reasonable have been used by the Parliament indicate that unreasonable terms would amount to refusal. It is in that sense the expression `has refused cannot be given a meaning of outright rejection or denial by the copyright owner.79. PPL and SCIL might have been called upon the broadcasters to enter into licenses and were willing to license their repertoire. But their contention was that if such terms are unreasonable, it amounted to refusal which would attract Section 31 of the Act. The word `communicate the work to the public by broadcast is of significance. It provides for a mode of communication. Thus, only because a Registrar of a Copyright would be directed to grant a licence to communicate the work to the public by broadcast would not mean that only a single licence shall be granted. The Board acting as a statutory authority can exercise its power from time to time. It is therefore not correct to contend that having regard to the provisions of Sub-section (2) of Section 31, compulsory licence can be granted only to one and not to more than one broadcaster. We would deal with this provision at some details a little later. In response to a query as to whether when an application for compulsory licence is filed any publication thereof is made or not; we are informed that no such rule or practice exists. Apart from the fact that application for grant of compulsory licence in the matter of sound recording may be by different persons; the wide range of it has been noticed by us hereinbefore. It may for different parts of the country nay different cities. If a compulsory licence is granted only once covering every single part of the country, the same cannot be lead to a conclusion that no other person can approach the Board.80. Section 31(1)(b) in fact does not create an entitlement in favour of an individual broadcaster. The right is to approach the Board when it considers that the terms of offer for grant of license are unreasonable. It, no doubt, provides for a mechanism but the mechanism is for the purpose of determination of his right. When a claim is made in terms of the provisions of a statute, the same has to be determined. All cases may not involve narrow commercial interest. For the purpose of interpretation of a statute, the court must take into consideration all situations including the interest of the person who intends to have a licence for replay of the sound recording in respect whereof another person has a copyright. It, however, would not mean that all and sundry can file applications. The mechanism to be adopted by the Board for determining the right of a complainant has been provided under the Act.Explanation appended to Section 31 also plays an important role as it seeks to make a distinction between an artistic work on the one hand and a cinematographic films or sound recording on the other. We are not concerned therewith at this stage.81. Admittedly in terms thereof the principles of natural justice are required to be complied with and an enquiry has to be held. The extent of such enquiry will depend upon the facts and circumstances of the case. A finding has to be arrived at that the grounds of refusal by an owner of a copyright holder is not reasonable. Only upon arriving at the said finding, the Registrar of copyright would be directed to grant a license for the said purpose. The amount of compensation payable to the owner of the copyright must also be determined. The Board would also be entitled to determine such other terms and conditions as the Board may think fit and proper. Registration is granted only on payment of such fees and subject to compliance of the other directions.82. An owner of a copyright indisputably has a right akin to the right of property. It is also a human right. Now, human rights have started gaining a multifaceted approach. Property rights vis-à-vis individuals are also incorporated within the `multiversity of human rights. As, for example, any claim of adverse possession has to be read in consonance with human rights.85. But the right of property is no longer a fundamental right. It will be subject to reasonable restrictions. In terms of Article 300A of the Constitution, it may be subject to the conditions laid down therein, namely, it may be wholly or in part acquired in public interest and on payment of reasonable compensation.87. The right to property, therefore, is not dealt with its subject to restrict when a right to property creates a monopoly to which public must have access. withholding the same from public may amount to unfair trade practice.88. In our constitutional Scheme of statute monopoly is not encouraged. Knowledge must be allowed to be disseminated. An artistic work if made public should be made available subject of course to reasonable terms and grant of reasonable compensation to the public at large.91. The legislature therefore for all intent and purport equates `compensation with `royalty. In the context of the Act, royalty is a genus and compensation is a species. Where a licence has to be granted, it has to be for a period. A `compensation may be paid by way of annuity. A `compensation may be held to be payable on a periodical basis, as apart from the compensation, other terms and conditions can also be imposed. The compensation must be directed to be paid with certain other terms and conditions which may be imposed.MARGINAL NOTE92. It was urged that for proper construction of Section 31 of the Act, reference to marginal note is permissible. Strong reliance has been placed by Mr. Divan on K.P. Varghese v. Income-tax Officer, Ernakulam [1981]131ITR597(SC) to contend that the marginal note to a section can be relied upon for indicating the drift of the section or to show what the section is dealing with. It is however, also well settled that where the statute is clear, marginal note may not have any role to play. See Bhinka and Ors. v. Charan Singh 1959CriLJ1223 .PARLIAMENTARY INTENT93. The intention of the Parliament, it is trite, must be ascertained from the plain reading of the Section. The intention is to treat works, which have been withheld from the public differently from the right to broadcast. The right to broadcast is a ephemeral right. It requires special treatment as it confers upon every person, who wishes to broadcast a work or the work recorded in a sound recording, the right to do so is either by entering into a voluntary agreement to obtain a licence on such terms which appear to be reasonable to him or when the term appears to be unreasonable to approach the Board. We wish the statute would have been clear and explicit. But only because it is not, the courts cannot fold its hands and express its helplessness.94. When such a complaint is made, it confers the jurisdiction upon the Board. It may ultimately allow or reject the complaint but it cannot be said that the complaint itself is not maintainable.95. This takes us to the interpretation of Section 31(2). It is attracted in a case where there are more than one applicants. The question of considering the respective claim of the parties would arise if they tread the same ground. The same, however, would not mean that only one person is entitled to have a licence for all time to come or for an indefinite term even in perpetuity. A licence may be granted for a limited period; if that be so another person can make such an application. Sub-section (2) of Section 31 would lead to an anomalous position if it is read literally. It would defeat the purport and object of the Act. It has, therefore, to be read down. P purposive construction therefore may be resorted to.99. The provisions of the Act and the Rules in this case, are, thus required to be construed in the light of the action of the State as envisaged under Article 14 of the Constitution of India. With a view to give effect thereto, the doctrine of purposive construction may have to be taken recourse to. [See Oriental Insurance Co. Ltd. v. Brij Mohan and Ors. AIR2007SC1971 ]100. Furthermore, the court while interpreting a statute will put itself in the armchair of the reasonable legislature, all statutes must be presumed to be reasonable. It is now a trite law that literal interpretation should be avoided when it leads to absurdity. If it is to be held that once the compulsory licence is granted in respect of a sound recording, the Board loses its jurisdiction for all time to come, it will lead to an absurdity. The statute does not contemplate such a position. The statute on the one hand not only in terms of General Clauses Act but also having regard to the individual complaints which a person may have as regards the unreasonableness of the terms impose upon him by the owner of the copyright must be held to be entitled to approach the Board as and when any cause of action arises therefore. It therefore must be held that Sub-section (2) of Section 31 is relatively directed to Clause (a) and not Clause (b).102. In this case, however, the meaning of the Statute is neither clear nor sensible. It is a statute where a purposive construction is warranted. It is a case where Sub-section (2) should be kept confined to clause (a) for that purpose. The statute has to be read down. It is not a case of improper interpolation so as to take away a primary purpose of the legislative intent. It is expedient to give effect to the intent of the statute. This itself says that creases can be ironed out. While undertaking the said exercise, the courts endeavour would be to give a meaning to the provisions and not render it otiose. We are, therefore, of the opinion that Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof.101. Mr. Divan relied on Indian Administrative Services (SCS) Association, U.P. and Ors. v. Union of India and Ors. 1992(3)SCALE126 wherein it has been held that:9. Thus it is settled law that where the intention of statutory amendment is clear and expressive, words cannot be interpolated. In the first place they are not, in the case, needed. If they should be added, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the legislature intended to convey. Where the meaning of the statute is clear and sensible, either with or without omitting the words or adding one, interpolation is improper, since the primary purpose of the legislative intent is what the statute says to be so. If the language is plain, clear and explicit, it must be given effect and the question of interpretation does not arise. If found ambiguous or unintended, the court can at best iron out the creases. Any wrong order or defective legislation cannot be righted merely because it is wrong. At best the court can quash it, if it violates the fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundamental laws or gross miscarriage of justice. It could thus be held that the legislature intended that the First Amendment Rules would operate prospectively from February 3, 1989, the date of their publication in the Gazette of India. Its policy is explicit and unambiguous. Rule 3(3)(ii) intended to remedy the imbalances while at the same time the proviso intended to operate prospectively to avert injustice to the officers recruited/promoted earlier than the officer promoted later to that date. The proviso carved out an exception to ward off injustice to the officers that became members of I.A.S. earlier to those dates.102. In this case, however, the meaning of the Statute is neither clear nor sensible. It is a statute where a purposive construction is warranted. It is a case where Sub-section (2) should be kept confined to clause (a) for that purpose. The statute has to be read down. It is not a case of improper interpolation so as to take away a primary purpose of the legislative intent. It is expedient to give effect to the intent of the statute. This itself says that creases can be ironed out. While undertaking the said exercise, the courts endeavour would be to give a meaning to the provisions and not render it otiose. We are, therefore, of the opinion that Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof.103. We have, moreover, been called upon to lay down the principles of evaluation. We decline to do so. We have been taken through various judgments of different jurisdictions. We have noticed hereinbefore that the scheme therein is different. The Tribunal exercises a limited jurisdiction in India. Different cases are required to be considered on its own merits. What would be reasonable for one may not be held to be reasonable for the other. The principles can be determined in a given situation. The Bombay High Court has remitted the matter back to the Board for the said purpose. We endorse the views of the Bombay High Court.It was urged that keeping in view the fact that ENIL infringed the copyright, it was not entitled to an injunction. Reliance has been on Phonographic Performance Ltd. v. Maitra (1998) Fleet Street Reports 749 at 770- 773. The general principle of grant of injunction came up for consideration before the Court of Appeal. Therein, it was held that an owner may exercise and exploit his proprietary right by licensing some and not others. He may charge whatever he wishes. Such is not the position in India. Therein, the defendant did not take part in the proceedings. It was, inter alia, from that angle, held that the court could still exercise discretion.The court of appeal held:Use of an injunction by PPL to obtain money to obtain money to which they are not entitled would be an abuse, but there is no evidence that that ever occurs. Where unauthorized use of PPLs copyright is taking place, we do not believe it is an abuse to refuse to licence that copyright without an appropriate payment for past use and an agreement for future use. Nor do we consider it an abuse for PPL to require compliance with an injunction either by the person refraining from using the repertoire or by payment for such use that has taken place and will take place. Apart from the fact that we are not dealing with a case where an order of injunction is required to be issued; as indicated hereinbefore, the question before the Board was as to whether there was an abuse in the sense that unreasonable amount was being claimed by way of royalty.105. As it was a case of abuse, the Board had the jurisdiction to entertain any application for grant of compulsory licence. How far and to what extent appellant has infringed the right of the respondent is a matter which may be taken into consideration by the Board. A suit was filed and injunction was granted. Apart from the fact that the appellant offered to take a license held negotiations with the respondents in the suit as soon as it came to know that Super Cassettes is not a member of PPL, it gave an undertaking. Each case must be considered on its own facts.106. However, we do not approve the manner in which the Board has dealt with the matter. It has refused to examine the witnesses. It took up the matter on a day for hearing which was fixed for production of witnesses.