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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NOS.4196-4197     OF     2012   (Arising out of SLP(C)Nos.26581-26582 of 2011)

Super Cassettes Industries Ltd.   … Appellant   Vs.

Music Broadcast Pvt. Ltd. … Respondent

  J     U D G M E N T   

ALTAMAS     KABIR,     J.   

1. Leave granted.

2. The sole question for consideration in these  

appeals is whether on a complaint made to the Copyright  

Board under Section 31 of the Copyright Act, 1957, the  

said Board under Clause (b) of Sub-Section (1) can pass  

an interim order in the pending complaint.  Since, we

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shall be dealing with the said section throughout this  

judgment, the same is extracted hereinbelow :

“31. Compulsory licence in works withheld from  public.-(1) If at any time during the term of  copyright in any Indian work which has been  published or performed in public, a complaint is  made to the Copyright Board that the owner of  copyright in the work-  

(a) has refused to republish or allow the re- publication of the work or has refused to allow  the performance in public of the work, and by  reason of such refusal the work is withheld  from the public; or  

(b) has 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,  

the Copyright Board, after giving to the owner of  the copyright in the work a reasonable opportunity  of being heard and after holding such inquiry as it  may deem necessary, may, if it is satisfied that  the grounds for such refusal are not reasonable,  direct the Registrar of Copyrights to grant to the  complainant a licence to re-publish the work,  perform the work in public or communicate the work  to the public by [broadcast], as the case may be,  subject to payment to the owner of the copyright of  such compensation and subject to such other terms  and conditions as the Copyright Board may  determine; and thereupon the Registrar of  Copyrights shall grant the licence to the  complainant in accordance with the directions of

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Copyright Board, on payment of such fee as may be  prescribed.

Explanation.-In this sub-section, the expression  "Indian work” includes-

(i) an artistic work, the author of which is a  citizen of India; and

(ii) a cinematograph film or a [sound  recording] made or manufactured in India.

(2) Where two or more persons have made a complaint  under sub-section (1), the licence shall be granted  to the complainant who in the opinion of the  Copyright Board would best serve the interests of  the general public.”  

3. However, in order to consider the said question, it  

is necessary to set out some of the facts giving rise  

to the said question.   

4. These appeals preferred by Super Cassettes  

Industries Ltd., hereinafter referred to as “Super  

Cassettes”, are directed against the order dated 1st  

September, 2011, passed by the Delhi High Court whereby  

it reversed the order passed by the Copyright Board on  

28th March, 2011, in which the Board held that it did

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not have the power to grant an interim compulsory  

licence.  By its judgment and order dated 1st September,  

2011 in R.F.A.No.250 of 2011 and C.M.No.8977 of 2011,  

the High Court reversed the finding of the Copyright  

Board upon holding that even while the grant of  

compulsory licence under Section 31 of the Copyright  

Act was under consideration, an interim compulsory  

licence could be granted. The High Court also held that  

where the dispute is over the quantum of licence fee,  

an interim compulsory licence had to be granted.  The  

impugned order directs the Copyright Board to grant an  

interim compulsory licence against Super Cassettes with  

the further direction to the Board to fix its own terms  

for such licences, after hearing the parties.

 5. Appearing for Super Cassettes, Mr. Amit Sibal,  

learned counsel, submitted that on 16th May, 2008, this  

Court had decided the two set of cases, in which it  

upheld the setting aside of the compulsory licence  

granted against Super Cassettes by the Copyright Board

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in relation to Entertainment Network India Ltd.,  

hereinafter referred to as “ENIL”, a radio broadcaster.  

In the other set of matters, where Super Cassettes was  

not a party, this Court upheld the grant of compulsory  

licence in relation to the works administered by  

Phonographic Performance Ltd., hereinafter referred to  

as “PPL”, and remanded the matter to the Copyright  

Board to fix the rates at which the compulsory  

licences, in relation to the works administered by PPL,  

were to be granted.   

6. Pursuant to the decision of this Court, the  

Copyright Board passed the order on 25th August, 2010,  

fixing the rates, not just for PPL, but for all music  

providers, including Super Cassettes, although, it was  

not a party to the proceedings.  Mr. Sibal submitted  

that on 9th September, 2010, Music Broadcast Pvt. Ltd.,  

hereinafter referred to as “MBPL”, wrote to Super  

Cassettes informing it that MBPL proposed to broadcast  

the works in which copyright was owned by Super

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Cassettes on the terms fixed in the aforesaid order of  

the Copyright Board dated 25th August, 2010.  Mr. Sibal  

submitted that this was done despite the fact that MBPL  

had an existing voluntary licence from Super Cassettes,  

which had subsisted since 25th March, 2002, and had been  

amended and renewed a number of times since then.  It  

was also submitted that several other broadcasters with  

existing voluntary licence from Super Cassettes wrote  

similar letters to it.       

7. Super Cassettes filed Writ Petition No.6255 of  

2010, questioning the order passed by the Copyright  

Board dated 25th August, 2010.  After hearing Super  

Cassettes and the Respondents, including MBPL, on 15th  

September, 2010, the Delhi High Court passed an interim  

order to the effect that the order dated 25th August,  

2010, passed by the Board would not be relied upon by  

any of the Respondents or any other party for a  

compulsory licence against Super Cassettes. Despite the  

aforesaid order of the Delhi High Court dated 15th

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September, 2010, MBPL filed an application for  

compulsory licence under Section 31(1)(b) of the  

Copyright Act, relying solely on the rates fixed by the  

Copyright Board for PPL by its order dated 25th August,  

2010.  Other eight broadcasters also filed applications  

for compulsory licence against Super Cassettes, relying  

solely on the order of the Copyright Board dated 25th  

August, 2010.  Super Cassettes responded to the said  

offer made by MBPL on the same terms as were prevalent  

under the expired voluntary licence agreement. The said  

proposal made by Super Cassettes was rejected by MBPL,  

while other broadcasters continued to broadcast the  

work of Super Cassettes on existing mutually agreed  

terms which were different from the terms set out in  

the order of the Copyright Board dated 25th August,  

2010.  By its order dated 28th March, 2011, the  

Copyright Board dismissed the application for interim  

relief filed by MBPL holding that it did not have the  

power to grant any interim compulsory licence.  

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8. Mr. Sibal submitted that even though MBPL did not  

broadcast the works of Super Cassettes after 25th  

December, 2010, its radio station, known as “Radio  

City”, improved its listenership ratings to become the  

most popular radio station in Mumbai and was  

maintaining its position as the fifth most popular  

radio station in Delhi. Mr. Sibal urged that MBPL  

thereafter preferred an appeal against the order dated  

28th March, 2011, before the Delhi High Court and vide  

the impugned order, the High Court held that the  

Copyright Board had the power to issue interim  

compulsory licence.   

9. Mr. Sibal submitted that the impugned order of the  

Delhi High Court, inter alia, held that the power to  

grant interim relief is not dependent upon a specific  

statutory empowerment to this effect.  The power is a  

common law principle and is not founded on any statute  

or legislation.  Mr. Sibal submitted that the Delhi

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High Court also held that the refusal of the copyright  

holder to grant a licence would, in effect, compel the  

broadcaster or any other party similarly placed, into  

succumbing to the demands of the owners and that since,  

litigation is protracted over years, a party would be  

unable to play or broadcast music, owned by the  

copyright holder, even though it was willing to pay a  

reasonable fee for making such broadcast and may also  

have to give up its action under Section 31 of the  

Copyright Act.  Mr. Sibal urged that the High Court  

went on to hold that refusal to grant interim relief  

would frustrate the rights of a broadcaster under  

Section 31 of the Copyright Act, which would render the  

provisions of the statute futile and nugatory.   

10. It was further held by the High Court that where  

the controversy concerns only the quantum of licence  

fee, an interim protection should be granted and even  

though Super Cassettes was not a party to the order of  

the Copyright Board dated 25th August, 2010, it is

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similarly placed as PPL, which was bound by the order  

passed by the Board on 25th August, 2010.  Accordingly,  

it was appropriate that Super Cassettes should also  

receive 2% of the net advertisement revenue as licence  

fee in the interim period for broadcasting of its sound  

recordings.   

11. Mr. Sibal urged that the Division Bench of the  

Bombay High Court chose not to differ with the decision  

of the Single Judge in Music     Choice     India     Pvt.     Ltd.   Vs.  

Phonographic     Performance     Ltd.   [(2009) 39 PTC 597], in  

which the learned Single Judge had held that the  

Copyright Act did not prohibit the Copyright Board from  

passing any interim order for determination of  

reasonable fees by way of royalty or compensation by  

the plaintiff.  The High Court disposed of the appeal  

by making an interim arrangement, whereby Super  

Cassettes was to receive an aggregate of 4% of the  

advertisement revenue of MBPL for broadcasting its  

sound recordings, music and literary work, while

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remanding the matter to the Copyright Board for interim  

order, making it clear that the Board need not be bound  

by the interim arrangement devised by the Court.   

12. Mr. Sibal submitted that the High Court had erred  

in law in holding that even in the absence of an  

express conferment by statute, the Copyright Board had  

the power to grant an interim compulsory licence under  

Section 31 of the Copyright Act.  He urged that the  

Copyright Board is a Tribunal created under Section 11  

of the Copyright Act, 1957, and being a creature of  

statute, its powers were confined to the powers given  

to it by the statute.  Mr. Sibal urged that while  

Section 12 of the Act vested the Copyright Board with  

the authority to regulate its own procedure and Section  

74 conferred certain limited powers of a civil court on  

the Board, the same were procedural in nature and did  

not vest the Board with a substantive right to grant  

interim orders under Section 31 of the Act.  Mr. Sibal  

submitted that the High Court had erred in holding that

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grant of interim relief was not dependent upon a  

specific statutory empowerment to this effect. Learned  

counsel submitted that being a creature of statute, the  

Copyright Board could only exercise such powers as were  

expressly vested in it by the statute and that the  

power to grant an interim compulsory licence not having  

been vested with the Board, it could not exercise such  

substantive power, which it did not possess.  

13. In support of his submissions, Mr. Sibal referred  

to the decision of this Court in Rajeev     Hitendra     Pathak    

&     Ors.   Vs. Achyut     Kashinath     Karekar     &     Anr.   [2011 (9)  

SCALE 287], wherein three learned Judges of this Court  

were called upon to consider as to whether the District  

Forum and the State Commission as established under the  

Consumer Protection Act, 1986, had the power to recall  

an ex parte order.  After examining various provisions  

of the Consumer Protection Act, this Court held that  

such an express power not having been conferred on the  

District Forum and the State Commission, they had no

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jurisdiction to exercise such powers which had not been  

expressly given to them.

14. Mr. Sibal also referred to the decision of this  

Court in Morgan     Stanley     Mutual     Fund   Vs. Kartick     Das    

[(1994) 4 SCC 225], wherein this Court was considering  

the scope of the provisions of the Consumer Protection  

Act, 1986.  On construction of Section 14 of the said  

Act, this Court came to the conclusion that there was  

no power under the Act to grant any interim relief,  

even of an ad interim nature.  Their Lordships who  

decided the matter, observed as follows :

“……… If the jurisdiction of the Forum to grant  relief is confined to the four clauses mentioned  under Section 14, it passes our comprehension as to  how an interim injunction could ever be granted  disregarding even the balance of convenience.”   

15. Reference was also made to a decision of the Punjab  

and Haryana High Court in Sham     Lal   Vs. State     Election    

Commission [AIR 1997 P&H 164], in which the High Court  

was considering a similar question as to whether the

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Election Tribunal constituted under the Punjab State  

Election Commission Act, 1994, had the power to pass an  

injunction so as to restrain an elected representative  

from assuming office pending adjudication of an  

election petition filed against him. After considering  

various provisions of the 1994 Act, the Court observed  

that “if the legislature had so desired, nothing  

prevented it from conferring statutory power upon the  

Election Tribunal to grant interim stay or injunction  

or restraint order during the pendency of the election  

petition.”  Accordingly, the Court went on to hold that  

the Election Tribunal did not have the power to pass  

any order of injunction or stay which would impede the  

implementation of the result of election.

16. Mr. Sibal cited yet another decision on the same  

issue rendered by a Full Bench of the Karnataka High  

Court in Lingamma Vs. State     of     Karnataka   [AIR 1982  

Karnataka 18], where the question involved was as to  

whether the Appellate Tribunal constituted under the

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Karnataka Appellate Tribunal Act, 1976, was empowered  

to pass interim orders when there was no express  

provision which conferred such substantive power on the  

Appellate Tribunal.  The Full Bench held that “in the  

absence of express conferment, power to grant temporary  

injunction was not implied.”  The Full Bench further  

held that the fact that no express provision had been  

made conferring on the Tribunal jurisdiction to make  

interlocutory orders, clearly indicates that the  

legislature did not want the Tribunal to have such  

powers.   

17. Mr. Sibal urged that in view of the aforesaid  

decisions and having regard to the fact that the  

Copyright Act did not specifically vest the Copyright  

Board with substantive powers to pass interim orders  

under Section 31 of the Copyright Act, the High Court  

erred in taking a view which was contrary to the well-

established principle that a statutory body could  

exercise only such powers that were vested in it by a

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statute and not otherwise.  Learned counsel urged that  

by making an interim arrangement and granting an  

interim compulsory licence to the Respondent, the High  

Court had conferred upon itself a jurisdiction which  

the Copyright Board and, consequently, the High Court  

did not possess under Section 31 of the Copyright Act.  

18. Mr. Sibal went on to submit further that all  

tribunals constituted under different statutes, were  

not the same and some enjoyed powers to pass certain  

orders which had been vested in them by statute, which  

made them different from other tribunals to whom such  

express powers had not been given. Learned counsel  

urged that there were certain tribunals which  

completely supplemented the jurisdiction of the Civil  

Court and, therefore, exercised all the powers of the  

Civil Court in respect of the matters entrusted to them  

by statute. In this regard, reference was made to  

Section 41(1) of the Armed Forces Tribunal Act, 1985,  

which specifically provides that the Tribunal shall

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have all jurisdiction, powers and authority exercisable  

by all courts in matters relating to service. Reference  

was also made to other Tribunals, such as, the Telecom  

Disputes Settlement & Appellate Tribunal, the National  

Green Tribunal and also the Debts Recovery Tribunal,  

which had been expressly vested with powers to pass  

interim orders under the statutes under which they had  

been created. Mr. Sibal submitted that there were no  

similar provisions in the Copyright Act, which granted  

such powers to the Copyright Board.   

19. Mr. Sibal then submitted that notwithstanding the  

fact that the Copyright Board was discharging quasi-

judicial functions, it did not possess inherent powers  

to pass interim orders, since it continued to be a  

tribunal governed by the statute under which it had  

been created.  It did not, therefore, have jurisdiction  

to pass interim orders which inheres in other  

Tribunals.  Referring to the decision of this Court in  

Bindeshwari     Prasad     Singh   Vs. Kali     Singh   [(1977) 1 SCC

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57], Mr. Sibal urged that in the said decision, this  

Court was called upon to decide as to whether a  

Magistrate had the authority to review or recall his  

order. It was held that unlike Section 151 of the Civil  

Procedure Code, which vests the civil courts and  

certain tribunals with inherent powers, the subordinate  

criminal courts had no such inherent power, since there  

was absolutely no provision in the Code of Criminal  

Procedure empowering a magistrate to exercise such  

powers.

20. Mr. Sibal lastly referred to the decision of this  

Court in Transcore Vs. Union     of     India   [(2008) 1 SCC  

125], and submitted that in the said case, this Court  

had observed that the Debts Recovery Tribunal is a  

tribunal and a creature of statute and it does not have  

inherent powers which existed in the civil courts.   

21. Mr. Sibal also submitted that apart from the  

decisions rendered in the case of Morgan     Stanley     Mutual   

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Fund (supra), the Supreme Court had held on several  

occasions that while entertaining matters, final relief  

ought not to have been granted at the interim stage.  

In fact, as submitted by Mr. Sibal, the courts will not  

imply a power in a particular provision of the statute  

if the legislative intent behind the statute suggested  

a contrary view.  Learned counsel submitted that  

implying a power to exercise the powers under Section  

31 of the Act was not the legislative intent which is  

easily discernible.  It was urged that implying such a  

power would transform compulsory licensing to statutory  

licensing without any statutory mandate to do so.  Mr.  

Sibal also reiterated the principle that power would  

not be implied to displace a pre-existing vested  

statutory right and the court would not, therefore,  

exercise such powers as a statutory right unless a  

statute expressly allowed the same.  The power to over-

ride such pre-existing right had to be in express terms  

and could not be implied.  Various other decisions were

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referred to by Mr. Sibal, which will only amount to  

repetition to what has already been stated.  

22. Mr. Sibal submitted that the High Court erred in  

holding that the Copyright Board had power to grant an  

interim compulsory licence and that when there was a  

dispute as to the quantum of fees payable by the  

licencee, an interim compulsory licence had to be  

given.  Mr. Sibal submitted that in the face of the  

well-established propositions of law, the High Court’s  

order could not stand and was liable to be set aside.  

23. Dr. Abhishek Manu Singhvi, learned Senior Advocate,  

appearing for the Respondent, firstly contended that  

although Section 31 of the Copyright Act may not have  

expressly vested the power to pass interim orders on  

the Copyright Board pending disposal of an application  

for grant of a compulsory licence, the same would have  

to be read into the Section as being incidental to the  

powers granted by the Statute to the Board to grant

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compulsory licences.   Dr. Singhvi urged that it could  

not have been the intention of the legislature that  

pending the determination of the right of an applicant  

to a compulsory licence, the public should be deprived  

of the entertainment of listening to music in respect  

of which the owner has the copyright, in this case,  

Super Cassettes.  

24. Dr. Singhvi urged that if it were to be held that  

the Board did not have such power to grant an interim  

compulsory licence, the consequences would be contrary  

to public interest, since it was not possible to assess  

the time that could be taken by the Copyright Board for  

disposing of an application for grant of compulsory  

licence.  Dr. Singhvi submitted that the Copyright Act  

is a Code in itself and that matters relating to  

copyrights and grant of licences had been left to the  

Copyright Board for decision, which only lend strength  

to the submission that the Board is vested with  

incidental and ancillary powers under Section 31 of the

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Act to give effect to the final relief which it is  

empowered to give under the said Section.

25. Dr. Singhvi referred to Section 25 of the Trade  

Marks Act as also Section 25(i) and (ii) of the Patents  

Act, which vested the authorities under the said Acts  

to pass appropriate orders in aid of the final relief.  

Dr. Singhvi urged that it is in  situations such as  

these, that the doctrine of “implied power” comes into  

play. Learned counsel submitted that without holding  

that the Copyright Board had the authority to direct  

the grant of interim compulsory licences in keeping  

with the doctrine of implied power, the provisions of  

the Copyright Act would be rendered somewhat  

unworkable.  

26. Dr. Singhvi urged that the Copyright Board is a  

quasi-judicial body discharging quasi-judicial  

functions and under the scheme of the Act, it has been  

vested with the power to determine the reasonableness

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of royalties claimed by performing rights societies and  

to fix the rates thereof and to consider applications  

for general licences for public broadcasting of works.  

Dr. Singhvi submitted that it is in that context that  

Section 12 of the Copyright Act would have to be read.  

Under Section 12, which defines the powers and  

procedure of the Copyright Board, it has been  

stipulated that the Board would, subject to any rules  

that may be made under the Act, have the power to  

regulate its own procedure, including the fixing of  

places and times of its meetings.   Referring to Sub-

section (7) of Section 12, Dr. Singhvi urged that the  

Copyright Board is to be deemed to be a Civil Court for  

certain purposes and all proceedings before the Board  

are to be judicial proceedings within the meaning of  

Sections 193 and 228 of the Indian Penal Code.

27. Dr. Singhvi then drew the Court’s attention to  

Section 19-A of the Copyright Act, which was inserted  

by amendment with effect from 9th August, 1984, in

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regard to disputes with respect to assignment of  

copyright.  It was submitted that the said provision  

clearly indicated that the Board was an adjudicating  

authority in regard to disputes between the parties and  

would, therefore, be deemed to be vested with ancillary  

powers to make interim orders in aid of the final  

relief that could be granted under Section 31 of the  

Act.  

28. Dr. Singhvi urged that the Copyright Act  

contemplated the grant of three types of licences,  

namely :-

(i) voluntary; (ii) compulsory; and  (iii) statutory.

  Dr. Singhvi urged that Sections 30, 31 and 31-A of  

the Act deal with grant of voluntary, compulsory and  

statutory licences.  However, while Section 30 deals  

with grant of voluntary licences by the owners of the  

copyright, Sections 31 and 31-A speak of grant of

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licences for broadcasting works which had been withheld  

from the public, either by the copyright owners, or  

where the owner of an Indian work is either dead or  

untraceable.  However, Section 52 of the Act also made  

provision that certain acts performed by broadcasters  

were not to be considered as infringement of copyright.  

In particular, reference was made by Dr. Singhvi to  

Section 52(1)(j)(iv) which indicates that the making of  

sound recordings in respect of any literary, dramatic  

or musical work would not amount to infringement of  

copyright if the person making such sound recording  

allowed the owner of the right or his duly authorised  

agent or representative to inspect all records and  

books of accounts relating to such sound recording.  

Dr. Singhvi urged that, in any event, any decision in  

respect of the above provisions would be appealable  

under Section 72 of the Copyright Act. Dr. Singhvi  

urged that the powers now vested in the Copyright Board  

were, in fact, powers which had been vested in it as

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high a body as Judicial Committee of the Privy Council  

under Section 4 of the Copyright Act, 1911, which had  

been passed by the Parliament of the United Kingdom and  

modified in its application to India by the Indian  

Copyright Act, 1914.  

29. In support of the submissions made by him, Dr.  

Singhvi referred to various decisions, beginning with  

the decision of this Court in Income     Tax     Officer   Vs.  

M.K.     Mohammed     Kunhi   [(1969) 2 SCR 65], wherein the  

power of the Income Tax Appellate Tribunal to stay  

recovery of penalty was under consideration. Although,  

such power was not directly vested in the Tribunal, the  

High Court held that the power to order the stay or  

recovery of penalty is an incidental and ancillary  

power possessed by the Tribunal in its appellate  

jurisdiction. Reference was also made to the decision  

cited on behalf of the Appellant in Morgan     Stanley  ’s  

case (supra). Dr. Singhvi urged that the same was no  

longer good law on account of the subsequent decisions

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of this Court. Dr. Singhvi urged that in Allahabad  

Bank,     Calcutta   Vs. Radha     Krishna     Maity     &     Ors.   [(1999) 6  

SCC 755], this Court was considering the provisions of  

the Recovery of Debts Due to Banks and Financial  

Institutions Act, 1993, hereinafter referred to as “the  

DRT Act”, wherein it was held that in a Suit under  

Section 19(1) for recovery of monies, the Tribunal  

acted within its powers in passing an interim order to  

restrain the defendants from recovering any money from  

a particular party. It was held that in view of Section  

22(1) of the Act, the Tribunal could exercise powers  

contained in the Civil Procedure Code and could even go  

beyond the Code as long as it passed orders in  

conformity with the principles of natural justice. This  

Court held further that Section 19(6) of the Act did  

not in any manner limit the generality of the powers of  

the Tribunal under Section 22(1) and that Section 19(6)  

was an enabling provision and that certain types of  

stay orders and injunctions mentioned therein could be

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passed by the Tribunal, but the same could not be  

deemed to be exhaustive nor restricting the Tribunal’s  

powers only to those types of injunctions or stay  

orders mentioned therein. It was also observed that in  

addition, Rule 18 enabled the Tribunal to pass orders  

to secure the ends of justice. Dr. Singhvi urged that  

the aforesaid decision of this Court was based on its  

earlier decision in Industrial     Credit     &     Investment    

Corporation     of     India     Ltd.   Vs. Grapco     Industries     Ltd.     &    

Ors. [(1999) 4 SCC 710], wherein it had been held that  

the Debts Recovery Tribunal had jurisdiction under  

Section 19(6) of the DRT Act to grant interim orders,  

since such power inheres in a Tribunal.              

30. Dr. Singhvi lastly contended that the decision in  

Rajeev     Hitendra     Pathak  ’s case (supra) could not be  

relied upon for a decision in this case on account of  

the fact that in the said case this Court was called  

upon to consider as to whether the District Forum and  

the State Commission had been vested with powers of

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revision, in the absence whereof they could not  

exercise such powers which had not been expressly  

vested in them.  Dr. Singhvi urged that having regard  

to the various decisions of this Court which have  

categorically held that powers to pass certain interim  

orders were incidental and ancillary to the exercise of  

powers conferred on a Tribunal by the Statute, the  

doctrine of implied power would stand attracted and the  

orders of the High Court could not, therefore, be  

faulted.  

31. Mr. Bhaskar P. Gupta, learned Senior Advocate,  

appearing for some of the interveners, adopted Dr.  

Singhvi’s submissions and reiterated the concept that  

the Copyright Act is a complete code in itself and the  

parties to the dispute would have to take recourse to  

the provisions of the Act and not the Civil Code which  

lends support to Dr. Singhvi’s  submissions that the  

“doctrine of implied power”  would have to be

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incorporated in the provisions of the Copyright Act, as  

far as the Copyright Board is concerned.  

32. Mr. Gupta also raised the question as to whether  

during the pendency of an existing licence granted  

under Section 30, a dispute could be raised with regard  

to the fees charged under Section 31(1)(b) which may  

subsequently convert the voluntary licence given under  

Section 30 of the Copyright Act into a compulsory  

licence under Section 31 thereof.  Mr. Gupta contended  

that since Section 31(1)(b) of the Act contemplates  

adjudication, the Copyright Board had the trappings of  

a quasi-judicial authority which inheres in itself the  

right to pass interim orders in the interest of the  

parties and to apply the principles of natural justice,  

keeping in mind the public interest.  In this regard,  

Mr. Gupta also submitted that Section 75 of the  

Copyright Act provides that the orders for payment of  

money passed by the Registrar of Copyrights, the  

Copyright Board or by the High Court would be deemed to

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be decrees of a Civil Court and would be executable in  

the same manner as a decree of such Court.  Mr. Gupta  

contended that the intention of the legislature would  

be clear from the scheme of the Act that matters  

relating to copyright should be dealt with by the  

authorities under the Act and not the Civil Court.

33. Mrs. Prathiba Singh, learned Advocate, who appeared  

for one of the parties, while reiterating the  

submissions made by Dr. Singhvi and Mr. Gupta,  

submitted that the powers of the Board had been  

gradually increased by legislation from time to time  

and even in regard to the question of subsisting  

licences and the grant of new licences, there could be  

no dispute as to the powers vested in the Copyright  

Board and the orders which it was competent to pass.  

Mrs. Singh, however, introduced another dimension into  

the debate by contending that the membership of the  

Copyright Board is drawn from various quarters.  There  

being 14 members, it does not meet regularly and

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decisions in cases are, therefore, deferred for long  

intervals.  In fact, as pointed out by Mrs. Singh,  

sometimes it is not possible to hold even one meeting  

in a month.  In such cases, unless the power to grant  

interim orders were read into the provisions of Section  

31 of the Act, there would be a complete stalemate in  

regard to cases where matters were pending before the  

Board and the public would be deprived of the pleasure  

of listening to such music and sound broadcasting.   

34. Mr. Harish Salve, learned Senior Advocate, in his  

turn provided another twist to the question under  

consideration in urging that inherent powers exist in  

an appellate forum. Mr. Salve urged that this was not a  

case where the Copyright Board was not entitled to pass  

orders of an interim nature, but whether it should  

exercise such power. Mr. Salve further urged that the  

power under Section 31(1)(b) was in respect of matters  

which were already in the public domain and the  

transaction being purely of a commercial nature, the

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Board was only called upon to decide how much charges  

were required to be paid for broadcasting music and  

sound recordings in respect whereof Super Cassettes had  

the copyright. Mr. Salve urged that Section 31(1)(b)  

merely enumerated the right of the Copyright Board to  

decide and compute the amount of fees payable for the  

use of the copyright, which was being withheld from the  

public.  According to Mr. Salve, the essence of the  

Copyright Act is the delicate balance between  

intellectual property rights and the rights of access  

to the copyright material.  In such a situation,  

according to Mr. Salve, a private right of copyright  

would have to give way to the public interest as  

contemplated in Section 31 of the Copyright Act.

  35. Replying to the submissions made on behalf of the  

Respondents and the interveners, Mr. Sibal urged that  

the powers which were inherent in a Tribunal as against  

the implied powers, stood on a different footing and,  

in any event, the provisions of Sections 19(4) and 19-A

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were not relevant to the doctrine of implied power in  

the facts of this case.  

36. Mr. Sibal submitted that the concept of public  

interest was nothing but a bogey introduced on behalf  

of the Respondents, when the entire transaction only  

involved the computation of the fees payable to a  

copyright owner for use of the copyright when the same  

was withheld from the public. Referring to the decision  

between ENIL and the Appellant in Entertainment     Network    

(India)     Limited   Vs. Super     Cassette     Industries     Limited    

[(2008) 13 SCC 30], Mr. Sibal referred to paragraph 116  

thereof, which is extracted hereinbelow :-  

“116. 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 licence 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

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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.”

   Mr. Sibal urged that the decision of the High Court  

was liable to be set aside and that of the Copyright  

Board was liable to be restored.   

37. What emerges from the submissions made on behalf of  

the respective parties is the dispute as to the width  

of the powers vested in the Copyright Board under  

Section 31 of the Copyright Act.  There is no dispute  

that the Copyright Act is a Code by itself and matters  

relating to copyrights and grant of licences in respect  

of such copyrights have been left to the Copyright  

Board for decision.  Chapter II of the Copyright Act,  

1957, deals with the establishment of a Copyright  

Office and the constitution of a Copyright Board and  

the powers and procedure to be exercised and formulated

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for the functioning of the said Board. Section 11 of  

the Act, which comes within the said Chapter, provides  

for the constitution of a Copyright Board, which would  

hold office for such period and on such terms and  

conditions as may be prescribed. Section 12 enumerates  

the powers and procedure of the Board and is extracted  

hereinbelow :-

“12.Powers and procedure of Copyright Board. –  (1)  The Copyright Board shall, subject to any  rules that may be made under this Act, have  power to regulate its own procedure, including  the fixing of places and times of its sittings:  

Provided that the Copyright Board shall  ordinarily hear any proceeding instituted  before it under this Act within the zone in  which, at the time of the institution of the  proceeding, the person instituting the  proceeding actually and voluntarily resides or  carries on business or personally works for  gain.  

Explanation.-In this sub-section "zone" means a  zone specified in section 15 of the States  Reorganisation Act, 1956. (37 of 1956).  

(2) The Copyright Board may exercise and  discharge its powers and functions through  Benches constituted by the Chairman of the  Copyright Board from amongst its members, each

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Bench consisting of not less than three  members:

[Provided that, if the Chairman is of opinion  that any matter of importance is required to be  heard by a larger Bench, he may refer the  matter to a special Bench consisting of five  members.]

(3) If there is a difference of opinion among  the members of the Copyright Board or any Bench  thereof in respect of any matter coming before  it for decision under this Act, the opinion of  the majority shall prevail:  

[Provided that where there is no such majority,  the opinion of the Chairman shall prevail.]  

(4) The [Chairman] may authorise any of its  members to exercise any of the powers conferred  on it by section 74 and any order made or act  done in exercise of those powers by the member  so authorised shall be deemed to be the order  or act, as the case may be, of the Board.  

(5) No member of the Copyright Board shall take  part in any proceedings before the Board in  respect of any matter in which he has a  personal interest.  

(6) No act done or proceeding taken by the  Copyright Board under this Act shall be  questioned on the ground merely of the  existence of any vacancy in, or defect in the  constitution of, the Board.  

(7) The Copyright Board shall be deemed to be a  civil court for the purposes of [sections 345

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and 346 of the Code of Criminal Procedure, 1973  (2 of 1974)] and all proceedings before the  Board shall be deemed to be judicial  proceedings within the meaning of sections 193  and 228 of the Indian Penal Code, 1860 (45 of  1860)”.     

As would be noticed, the Copyright Board has been  

empowered to regulate its own procedure and is to be  

deemed to be a Civil Court for the purposes of Sections  

345 and 346 of the Code of Criminal Procedure, 1973,  

and all proceedings before the Board shall be deemed to  

be judicial proceedings within the meaning of Sections  

193 and 228 of the Indian Penal Code.  The provisions  

clearly indicate that the Copyright Board discharges  

quasi-judicial functions, which as indicated in  

Sections 19-A, 31, 31-A, 32 and 52, requires the Board  

to decide disputes in respect of matters arising  

therefrom.  In fact, Section 6 also spells out certain  

disputes which the Copyright Board has to decide, and  

its decision in respect thereof has been made final.  

However, for the purposes of these appeals we are

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concerned mainly with Section 31, which has been  

extracted hereinabove.  

38. Elaborate submissions have been made regarding the  

power of the Copyright Board to grant interim  

compulsory licences in works withheld from the public,  

in relation to matters which were pending before it.  

Having considered the said submissions, we are unable  

to accept the submissions made by Dr. Abhishek Manu  

Singhvi, Mr. Bhaskar P. Gupta, Mr. Harish Salve and the  

other learned counsel appearing for the different  

interveners. The Copyright Board has been empowered in  

cases where the owner of a copyright in a work has  

withheld the same from the public, after giving the  

owner of the copyright in the work a reasonable  

opportunity of being heard and after holding such  

inquiry as it may consider necessary and on being  

satisfied that the grounds for withholding the work are  

not reasonable, to direct the Registrar of Copyrights  

to grant to the complainant a licence to republish the

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work, perform the work in public or communicate the  

work to the public by broadcast, as the case may be,  

subject to payment to the owner of the copyright of  

such compensation and subject to such other terms and  

conditions as the Board may determine.  The language  

used in the Section clearly contemplates a final order  

after a hearing and after holding an inquiry to see  

whether the ground for withholding of the work from the  

public was justified or not.  There is no hint of any  

power having been given to the Board to make interim  

arrangements, such as, grant of interim compulsory  

licences, during the pendency of a final decision of an  

application.    

39. As has been held by this Court in innumerable  

cases, a Tribunal is a creature of Statute and can  

exercise only such powers as are vested in it by the  

Statute.  There is a second school of thought which  

propagates the view that since most Tribunals have the  

trappings of a Court, it would be deemed to have

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certain ancillary powers, though not provided by the  

Statute, to maintain the status-quo as prevailing at  

the time of filing of an application, so that the  

relief sought for by the Applicant is not ultimately  

rendered otiose.  While construing the provisions of  

Section 14 of the Consumer Protection Act, 1986, in the  

Morgan     Stanley     Mutual     Fund  ’s case (supra), this Court  

categorically held that in the absence of any specific  

vesting of power, no interim relief could be granted,  

not even of an ad-interim nature.  The decision in the  

recent judgment of this Court in Rajeev     Hitendra    

Pathak’s case (supra) also supports the case made out  

by Mr. Sibal to the extent that in the absence of any  

express power conferred on the District Forum and the  

State Commission under the Consumer Protection Act,  

they had no jurisdiction to exercise powers which had  

not been expressly given to them.  

40. Even the decision rendered in Bindeshwari     Prasad    

Singh’s case (supra), which was a decision as to the

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jurisdiction of a Magistrate to review or recall his  

order, it was held that in the absence of any specific  

power in the Code of Criminal Procedure, the Magistrate  

was not entitled to exercise such a power.   

41. On the other hand, the various decisions cited on  

behalf of the Respondent and the interveners were in  

the context of the question as to whether a Tribunal  

has incidental powers, which were inherent though not  

specifically vested, in order to preserve the status-

quo as in M.K.     Mohammed     Kunhi  ’s case (supra), Allahabad  

Bank,     Calcutta  ’s case (supra) or even in Grapco  

Industries     Ltd.  ’s case (supra), till a decision was  

reached in the pending matter.

42. In the instant case, the power being sought to be  

attributed to the Copyright Board involves the grant of  

the final relief, which is the only relief contemplated  

under Section 31 of the Copyright Act.  Even in matters  

under Order XXXIX Rules 1 and 2 and Section 151 of the

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Code of Civil Procedure, an interim relief granting the  

final relief should be given after exercise of great  

caution and in rare and exceptional cases.  In the  

instant case, such a power is not even vested in the  

Copyright Board and hence the question of granting  

interim relief by grant of an interim compulsory  

licence cannot, in our view, arise. Mr. Salve’s  

submission that the substratum of the scheme of Section  

31 is commercial in nature and only involves  

computation of the charges to be paid to the holder of  

the copyright who withholds the same from the public,  

is no answer to the proposition that under Section 31  

only an ultimate relief by way of grant of a licence on  

payment of reasonable charges to the copyright owner to  

publish and/or broadcast the work could be given.  To  

grant an interim compulsory licence during the stay of  

the proceedings would amount to granting the final  

relief at the interim stage, although the power to  

grant such relief has not been vested in the Board.  

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43. It is no doubt true, that Tribunals discharging  

quasi-judicial functions and having the trappings of a  

Court, are generally considered to be vested with  

incidental and ancillary powers to discharge their  

functions, but that cannot surely mean that in the  

absence of any provision to the contrary, such Tribunal  

would have the power to grant at the interim stage the  

final relief which it could grant.   

44. As also indicated hereinbefore, such incidental  

powers could at best be said to exist in order to  

preserve the status-quo, but not to alter the same, as  

will no doubt happen, if an interim compulsory licence  

is granted. If the legislature had intended that the  

Copyright Board should have powers to grant mandatory  

injunction at the interim stage, it would have vested  

the Board with such authority.  The submission made  

that there is no bar to grant such interim relief in  

Section 31 has to be rejected since the presence of a

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power cannot be inferred from the absence thereof in  

the Statute itself.

45. In the aforesaid circumstances, we have no  

hesitation in allowing the appeals and setting aside  

the impugned judgment and order of the Division Bench  

of the High Court.  The Appeals are, accordingly,  

allowed.  There will be no order as to costs.        

………………………………………………………J.      (ALTAMAS KABIR)

……………………………………………………J.                        (SURINDER SINGH NIJJAR)

New Delhi Dated:04.05.2012

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NON-REPORTABLE

IN THE SUPREME COUR OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NOS.4196-4197     OF     2012   [@ SLP (CIVIL) NOS.26581-26582 OF 2011]

Super Cassettes Industries Ltd.     ….Appellant

Versus

Music Broadcast Pvt. Ltd.                ….Respondent

J     U     D     G     M     E     N     T   

Chelameswar,     J.   

Though, I agree with the conclusion reached by my learned brother  

Justice Kabir, I wish to add a few lines.   

2. To my mind, the issue is not whether the Copyright Board is a  

Court or a Tribunal while exercising the jurisdiction under Section 31 of the  

Copyright Act or any other Section, which authorises the Copyright Board to  

perform certain adjudicatory functions.  It is also not the issue whether Courts  

or Tribunals have such powers, which are categorised as powers ancillary to  

their jurisdiction irrespective of the fact that the Statute, which created the  

jurisdiction, does not, always, expressly provide for the exercise of such

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ancillary powers.  This Court has held on more than one occasion that such  

powers could be implied - Income Tax Officer vs. M.K. Mohammed Kunhi, 1969  

(2) SCR 65 and Allahabad Bank, Calcutta vs. Radha Krishna Maity and others,  

(1999) 6 SCC 755.  As noticed by my learned brother at para 39 of the  

Judgment, there have been decisions of this Court, which appear conflicting on  

the question whether a Statutory Tribunal has powers other than those  

expressly conferred by the Statute.

3. In the ultimate analysis, both the Courts and the Tribunals are  

adjudicatory bodies to whom the Legislature entrusts the authority to resolve  

the disputes falling within the jurisdiction conferred upon each of such bodies  

and brought before them.  The jurisdiction is, normally, defined with reference  

either to; (1) the subject matter of the dispute and / or the pecuniary value of  

the dispute; or (2) the territorial nexus of either the parties to the dispute or  

the subject matter of the dispute to the Court or Tribunal.

4. In the context of Courts adjudicating civil disputes, the jurisdiction  

and powers necessary to effectively exercise the jurisdiction, such as, securing  

the presence of defendants / respondents or witnesses, granting of interim  

orders etc., and the method and manner of enforcement of a decision or a  

decree, are matters elaborately dealt by the Code of Civil Procedure.  Similarly,  

the Code of Criminal Procedure contains provisions necessary for the exercise  

of the jurisdiction of the Criminal Courts.  While the Code of Civil Procedure,

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under Section 151, recognises the existence of inherent powers in all Civil  

Courts, the Code of Criminal Procedure recognises all such inherent powers  

only in the High Court under Section 482.   

5. Therefore, the jurisdiction and authority of not only the Tribunals,  

but also the Courts are structured by the statutory grants and limitations.

6. However, both the grant as well as the limitations could be either  

express or implied from the scheme of a particular enactment.  The  

considerations relevant for ascertaining whether there is an implied grant of  

such powers, as can be culled out from the various Judgments relied upon by  

the learned counsel appearing in these matters, which have been taken note of  

by my learned brother Justice Kabir, appear to be; (1) need to preserve status  

quo with respect to the subject matter of the dispute in order to enable the  

party, which eventually succeeds in the litigation, to enjoy the fruits of the  

success; and (2) need to preserve the parties themselves a consideration,  

which weighed heavily with this Court in implying such powers in favour of the  

Magistrates while exercising the jurisdiction under Section 125 of the Code of  

Criminal Procedure.   

7. The often stated principle that Courts would not, normally, grant a  

relief by way of an interim measure, which is either identical with or  

substantially the same as the final relief sought in the proceeding, is based on  

the ground that indiscriminate grant of such interim reliefs are capable of

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producing public mischief see Assistant Collector of Central Excise, Chandan  

Nagar, West Bengal  v. Dunlop India Limited and others, (1985) 1 SCC 260.  

This Court opined that the injury, if any, to the party approaching the Court is  

reversible and the public interest in certain instances should outweigh the  

temporary inconvenience of individuals.  

8. Take another example, if a returned candidate to the  

constitutionally created Legislative Bodies could be restrained from functioning  

as a legislator by an interim order pending the adjudication of the legality of  

such candidate’s election, the same would produce great public mischief.   

9. Therefore, different considerations come into play depending upon  

the context or nature of the legal rights at issue or subject matter of the  

dispute, etc., in deciding the question whether an adjudicatory body can be  

said to have been invested with the power to grant interim orders, which are  

identical or substantially similar to the final relief that can be afforded in the lis  

by implication from the scheme and language of the enactment, which created  

the jurisdiction.     

10. For deciding the question whether the Copyright Board, exercising  

the jurisdiction under Section 31 of the Copyright Act, can grant ad hoc  

compulsory licence by an interim order pending the adjudication of the issue, is  

required to be examined.

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11. Copyright in a “work”, undoubtedly, is a valuable legal right  

subsisting in the “owner”  or somebody claiming through the owner.  Such a  

right has more than one dimension.  It may have a commercial value  

depending upon the quality, nature and the public demand of the work.  It may  

also have aesthetic value.  Whether such a right should be transferred or not is  

a matter, essentially, for the “owner”  of the copyright to determine.  It is,  

further, the right of the owner to decide on what terms and conditions (which  

need not necessarily be related to money alone), he would part with the  

copyright of his work if ever he decides to part with it.  However, Section 31 of  

the Copyright Act creates an exception to the abovementioned principle of the  

right of the owner of the copyright.  In substance - the Section deprives the  

“copyright” of the “owner” against his volition.  In other words, by Section 31,  

the State is authorised, by its coercive powers, to deprive the owner of his  

copyright in a work, which is his property and the right to enjoy such property  

in the manner as the owner of the property pleases.  Necessarily, in view of the  

constitutional mandate under Article 300A, such a deprivation can only be by  

the authority of law and it is too well entrenched a principle on the  

constitutional law that such a law could be only for a public purpose.   

12. The core of Section 31 is that the owner of a copyright has; (1)  

either refused to “republish” or “allow the republication” of his work or “refused  

to allow the performance in public” of the work; (2) by reason of such refusal

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the work is withheld from the public; and (3) the grounds for such refusal are  

not reasonable.  It is in the abovementioned circumstances, if the Copyright  

Board is satisfied that the grounds of refusal are not reasonable, the Copyright  

Board is authorised, by law, to take steps for the grant of a compulsory licence.

13. As can be seen, the appellants are interested in the commercial  

exploitation of a work, of which they are not “owners”  of the copyright.  To  

succeed in their claim for a compulsory licence in their favour, they must,  

firstly, establish that “the work is withheld from the public”, because of the  

“owner’s”  refusal to republish the work, etc.; secondly, the owner’s refusal is  

on grounds, which are “not reasonable”  in law.  Whether the owner is  

withholding the republication on grounds, which are unreasonable or not, is a  

question, which can only be decided upon affording a complete hearing to the  

owner of the work, as I have already indicated the reason for withholding need  

not only be monetary.  Take for example the case of a book or a  

cinematograph film, such as, Satanic Verses or Da Vinci Code, which have  

created quite some commotion in certain quarters including the security threat  

to the author or owner of the work.  If the author, on realising that repeated  

publication of the work might endanger his security, declines or refuses  

republication of the work, it cannot be said that the author (owner)  

unreasonably withheld republication.  Such a refusal has nothing to do with the  

monetary considerations. Therefore, by conceding a power to grant ad hoc

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compulsory licence during the pendency of the proceeding, under Section 31,  

would not only render the final inquiry into the question, a futile exercise in a  

case where the owner has reasons other than inadequacy of monetory  

compensation.  The power under Section 31 to grant a compulsory licence  

meant for avoiding the withholding of the republication or refuse to allow the  

performance in pubic of some “work”  - is, essentially, for the benefit of the  

public.  Commercial benefit to “publisher”  is incidental.  Unless, it is  

demonstrated that failure to imply such power to direct immediate  

republication or performance of a work in public would be detrimental to public  

interest, the power to grant ad hoc compulsory licence, cannot be implied.  No  

such detriment is demonstrated.  In the absence of an express statutory grant,  

I would not imply the power to grant an ad hoc compulsory licence by way of  

interim order by the Copyright Board.

………………………………….J. ( J. CHELAMESWAR )

New Delhi; MAY 4, 2012.