SUPER CASSETTES INDUSTRIES LTD.versusMUSIC BROADCAST PVT. LTD.

                       [2012] 4 S.C.R. 209


          SUPER CASSETTES INDUSTRIES LTD.                            A
                                  V.
               MUSIC BROADCAST PVT. LTD.
            (Civil Appeal Nos. 4196-4197 of 2012)
                           MAY 4, 2012
                                                                     B
    [ALTAMAS KABIR, SURINDER SINGH NIJJAR AND
              J. CHELAMESWAR, JJ.]*

     Copyright Act, 1957 - s. 31(1)(b)- Powers under- Scope
of - Power of Copyright Board - To pass ad interim order-            C
In a pending complaint u/s. 31 - Held: Section 31
contemplates final relief - The statute does not vest the
Copyright Board power to grant interim order - To grant
interim compulsory licence during the pendency of the
complaint would amount to final relief at the interim stage.         D

    The question for consideration in the present
appeals was whether on a complaint made to the
Copyright Board uls. 31 of the Copyright Act, 1957, the
said Board under Clause (b) of Sub-Section (1) can pass
                                                                     E
an interim order in the pending complaints.

     Allowing the appeals, the Court

    HELD: 1. The language used in Section 31 of
Copyright Act, 1957 clearly contemplates a final order               F
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              G
of interim compulsory licences, during the pendency of
a final decision of an application. [Para 38) [232-B-C]
*   Judgment Pronounced by J. Chelameswar, J. made non-reportable.

                                209                                  H
    210     SUPREME COURT REPORTS             [2012] 4 S.C.R.


A      2. The power being sought to be attributed to the
  Copyright Board involves the grant of the final relief,
  which is the only relief contemplated u/s. 31 of the
  Copyright Act. Even in matters under Order XXXIX Rules
  1 and 2 and Section 151 of CPC an interim relief granting
B 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 arise.
c 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. [Para 42)
  [233-D-H]

D      3. A Tribunal is a creature of statute and can exercise
  only such powers as are vested in it by the statute.
  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
E 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. Such incidental powers
  could at best be said to exist in order to preserve the
F status-quo, but not to alter the same, as will 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.
G [Paras 39, 43 and 44) [232-D; 234-A-D]

      Morgan Stanley Mutual Fund vs. Kartick Das (1994) 4
  SCC 225: 1994 (1) Suppl. SCR 136; Rajeev Hitendra Pathak
  and Ors. vs. Achyut Kashinath Karekar and Anr. 2011 (9)
H SCALE 287; Bindeshwari Prasad Singh vs. Kali Singh (1977)
  1 sec 57: 1977 (1) SCR 125 - relied on.
 SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                 211
          BROADCAST PVT. LTD.
    Income Tax Officer vs. M.K. Mohammed Kunhi (1969) 2          A
SCR 65;Al/ahabad Bank, Calcutta vs. Radha Krishna Maity
and Ors. (1999) 6 sec 755: 1999 (2) Suppl. SCR 290;
Industrial Credit and Investment Corporation of India Ltd. vs.
Grapco Industries Ltd. and Ors. (1999) 4 SCC 710: 1999 (3)
SCR 759 - distinguished.                                         B

     Music Choice India Pvt. Ltd. vs. Phonographic
Performance Ltd. (2009) 39 PTC 597; Sham Lal vs. State
Election Commission AIR 1997 P&H 164; Lingamma vs.
State of Kamataka AIR 1982 Karnataka 18; Transcore vs.
Union of India (2008) 1 SCC125: 2006 (9) Suppl. SCR 785;         C
Entertainment Network (India) Limited vs. Super Cassette
Industries Limited (2008) 13SCC 30: 2008 (9) SCR 165 -
referred to.

                     Case Law Reference:                         D
  (2009) 39 PTC 597           Referred to.         Para 11
  AIR 1997 P&H 164            Referred to.         Para 15
  AIR 1982 Karnataka 18       Referred to.         Para 16
                                                                 E
  2006 (9) Suppl. SCR 785 Referred to.             Para 20
  2008 (9) SCR 165            Referred to.         Para 36
  1994 (1) Suppl. SCR 136 Relied on.               Para 39
                                                                 F
  2011 (9) SCALE 287          Relied on.           Para 39
  1977 (1) SCR 125            Relied on.           Para 39
  (1969) 2 SCR 65             Distinguished.       Para 41
  1999 (2) Suppl. SCR 290 Distinguished.           Para 41       G
  1999 (3) SCR 759            Distinguished.       Para 41
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4196-4197 of 2012.
                                                                 H
    212       SUPREME COURT REPORTS                  [2012) 4 S.C.R.


A       From the Judgment & Order dated 01.09.2011 of the High
    Court of Delhi at New Delhi in RFA No. 250 of 2011 and CM
    No. 8977 of 2011.

       Dhruv Mehta, Harish Salve, Bhaskar P. Gupta, Amit Sibal,
  Neel Mason, Harsh Kaushik Sankalp Dalal, Ankit Relhan,
B Abhay Chattopadhyay, Giri Subramanium, Senthil Jagadeesan,
  K.K. Khetan, Meghna Mishra, Sagar Chandra, Rupesh Gupta,
  Akhid, Mishra Saurabh, Prathiba M. Singh, Kapil Wadhwa,
  Archana Sahadeva, Chandrika Gupta, Gaurav Sharma, Balaji
  Srinivasan, K. Datta Diggaj Pathak, Abhay Kumar, Liz Mathew,
C Karanjawala & Co. for the appearing parties.

          The Judgment of the Court was delivered by

          ALTAMAS KABIR, J. 1. Leave granted.

D      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 shall be dealing with the said
E 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
F         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
G                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
H                by [broadcast], of such work or in the case of a
  SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                   213
   BROADCAST PVT. LTD. [ALTAMAS KABIR, J.]
            [sound recording] the work recorded in such [sound      A
            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       B
            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,           C
            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               D
            Copyrights shall grant the licence to the
            complainant in accordance with the directions of
            Copyright Board, on payment of such fee as may
            be prescribed.
                                                                    E
    Explanation.-ln this sub-section, the expression "Indian
    work" includes-

     (i)    an artistic work, the author of which is a citizen of
            India; and
                                                                    F
     (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      G
    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.                                                           H
    214      SUPREME COURT REPORTS               (2012] 4 S.C.R.


A      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
B that it did 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
c 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
0
  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
E 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 in relation to Entertainment
  Network India Ltd., hereinafter referred to as "ENIL", a radio
  broadcaster. In the other set of matters, where Super Cassettes
F 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
G 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.
H
 SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                      215
  BROADCAST PVT. LTD. [ALTAMAS KABIR, J.]
Sibal submitted that on 9th September, 2010, Music Broadcast           A
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 Cassettes on
the terms fixed in the aforesaid order of the Copyright Board
dated 25th August, 2010. Mr. Sibal submitted that this was done        B
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             c
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              D
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 September,          E
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         F
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               G
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             H
    216      SUPREME COURT REPORTS                [2012] 4 S.C.R.


A   holding that it did not have the power to grant any interim
    compulsory licence.

       8. Mr. Sibal submitted that even though MBPL did not
  broadcast the works of Super Cassettes after 25th December,
B 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
C 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
D 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
  High Court also held that the refusal of the copyright holder to
  grant a licence would, in effect, compel the broadcaster or any
E 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
F 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.

G      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 similarly placed as PPL, which was bound
H by the order passed by the Board on 25th August, 2010.
 SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                    217
  BROADCAST PVT. LTD. [ALTAMAS KABIR, J.]
Accordingly, it was appropriate that Super Cassettes should         A
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      B
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              C
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 remanding the matter     D
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      E
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      F
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         G
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 grant of interim relief was not dependent upon a specific
statutory empowerment to this effect. Learned counsel
                                                                    H
    218        SUPREME COURT REPORTS                  [2012) 4 S.C.R.


A 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
B 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),
C 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
D conferred on the District Forum and the State Commission,
  they had no 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
E 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
F 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
G         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
H Commission [AIR 1997 P&H 164), in which the High Court was
  SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                   219
   BROADCAST PVT. LTD. [ALTAMAS KABIR, J.]
considering a similar question as to whether the Election           A
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     B
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       c
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],            D
where the question involved was as to whether the Appellate
Tribunal constituted under the 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         E
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    F
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       G
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 statute and not
otherwise. Learned counsel urged that by making an interim
                                                                    H
    220      SUPREME COURT REPORTS               (2012] 4 S.C.R.


A   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.
B
        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.
C 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
D Tribunal Act, 1985, which specifically provides that the Tribunal
  shall 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
E 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.
F
       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,
G 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 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
H
  SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                    221
   BROADCAST PVT. LTD. [ALTAMAS KABIR, J.]

or recall his order. It was held that unlike Section 151 of the       A
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.                                   B

     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           C
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 Fund (supra),
the Supreme Court had held on several occasions that while D
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 E
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 F
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 referred G
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            H
    222      SUPREME COURT REPORTS                 [2012) 4 S.C.R.


A 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.

B      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
C being incidental to the powers granted by the Statute to the
  Board to grant 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
D 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
E 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
F 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 Act to give effect to the final relief which it is
  empowered to give under the said Section.
G      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"
H comes into play. Learned counsel submitted that without
  SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                     223
   BROADCAST PVT. LTD. [ALTAMAS KABIR, J.]
holding that the Copyright Board had the authority to direct the      A
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-
                                                                      B
judicial body discharging quasi-judicial functions and under the
scheme of the Act, it has been vested with the power to
determine the reasonableness 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       C
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      D
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             E
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 regard to disputes with         F
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 fina! relief that could   G
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;                                                H
    224           SUPREME COURT REPORTS            [2012] 4 S.C.R.


A         (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.
B   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 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.
C   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 )U)(iv) which indicates that the
    making of sound recordings in respect of any literary, dramatic
D   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
E   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 high a body as Judicial
    Committee of the Privy Council under Section 4 of the
F   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
G · 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
H or recovery of penalty is an incidental and ancillary power
  SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                     225
   BROADCAST PVT. LTD. [ALTAMAS KABIR, J.]
 possessed by the Tribunal in its appellate jurisdiction.              A
 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 of this Court. Dr. Singhvi urged that in
 Allahabad Bank, Calcutta Vs. Radha Krishna Maity & Ors.               B
 [(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 ORT Act",
 wherein it was held that in a Suit under Section 19(1) for
 recovery of monies, the Tribunal acted within its powers in           c
 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          0
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        E
 passed by the Tribunal, but the same could not be deemea 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              F
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 ORT Act to grant interim
orders, since such power inheres in a Tribunal.                        G

     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          H
    226       SUPREME COURT REPORTS                [2012] 4 S.C.R.


A District Forum and the State Commission had been vested with
  powers of 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
B 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,
C 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
D that the "doctrine of implied power" would have to be
  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
E 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 voiuntary
  licence given under Section 30 of the Copyright Act into a
  compulsory licence under Section 31 thereof. Mr. Gupta
F 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
G 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 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
H
 SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                    227
  BROADCAST PVT. LTD. [ALTAMAS KABIR, J.]
legislature would be clear from the scheme of the Act that          A
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      B
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       C
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 decisions in cases are, therefore, deferred for long
intervals. In fact, as pointed out by Mrs. Singh, sometimes it is   D
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        E
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.        F
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         G
purely of a commercial nature, the 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     H
    228       SUPREME COURT REPORTS                 [2012] 4 S.C.R.


A 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
B 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
C 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 were not relevant to the
  doctrine of implied power in the facts of this case.

D      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.
E 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
F         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
G         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
H         to have a licence for replay of the sound recording in
  SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                     229
   BROADCAST PVT. LTD. [ALTAMAS KABIR, J.]

    respect whereof another person has a copyright. It,               A
    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."
                                                                      B
      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       C
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,        D
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 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        E
Board, which would hold office for such period and on such
terms and conditions as may be prescribed. Section ~ 2
enumerates the powers and procedure of the Board and is
extracted hereinbelow :-

    "12.Powers and procedure of Copyright Board. - (1)
                                                                      F
    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:
                                                                      G
          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
                                                                      H
    230        SUPREME COURT REPORTS                [2012] 4 S.C.R.


A         and voluntarily resides or carries on business or personally
          works for gain.

          Explanation.-ln this sub-section "zone" means a zone
          specified in section 15 of the States Reorganisation Act,
          1956. (37 of 1956).
B
                (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 Bench consisting of not less
c         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
D         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:
E
                [Provided that where there is no such majority, the
     0
          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
F
          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.

G                (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
H         Board under this Act shall be questioned on the ground
 SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                     231
  BROADCAST PVT. LTD. [ALTAMAS KABIR, J.]
     merely of the existence of any vacancy in, or defect in the     A
     constitution of, the Board.

            (7) The Copyright Board shall be deemed to be a
     civil court for the purposes of [sections 345 and 346 of the
     Code of Criminal Procedure, 1973 (2 of 1974)] and all           B
     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          C
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       D
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         E
been made final. However, for the purposes of these appeals
we are concerned mainly with Section 31, which has been
extracted hereinabove.

     38. Elaborate submissions have been made regarding the
                                                                     F
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         G
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              H
    232      SUPREME COURT REPORTS                [2012] 4 S.C.R.


A 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 work, perform the work in public or communicate the work
  to the public by broadcast, as the case may be, subject to
B 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
c 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,
D 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 certain ancillary powers, though not provided by the
E 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
F 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
G 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
H
  SUPER CASSETTES INDUSTRIES LTD. v. MUSIC                     233
   BROADCAST PVT. LTD. [ALTAMAS KABIR. J.]

Singh's case (supra), which was a decision as to the                   A
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.
                                                                       B
     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 MK. Mohammed Kunhi's case
(supra), Allahabad Bank, Calcutta's case (supra) or even in            C
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      D
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 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        E
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         F
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            G
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.
                                                                       H
    234      SUPREME COURT REPORTS                 [2012] 4 S.C.R.


A       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
B 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
C 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
D rejected since the presence of a 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
E judgment and order of the Division Bench of the High Court.
  The Appeals are, accordingly, allowed. There will be no order
  as to costs.

    K.K.T.                                        Appeals allowed.