judgement:
ivil Appeal Nos. 727 and 962 74 of 1988 Appeal Under Section 35L(b) of the Central Excise and Salt Act, 1944 from the order dated 30.11.87 and 20.11.87 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 2856, 1856, 1920 1931/87 A in order Nos. 775, 749 to 761/87.
Kuldeep Singh, Additional Solicitor General.
A.K. Ganguli, Mrs. Sushma Suri and K. Swami for the Appellant.
F.S. Nariman, Ravinder Narain, A.K. Verma and D.N. Misra for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These appeals arise under section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter called 'the Act ').
The respondents herein M/s. Kelvinator of India Ltd. in these appeals manufacture refrigerators.
They market these through their four exclusive wholesale dealers, namely, M/s. Gem, 658 M/s. Leonard, M/s. Expo Machinery and M/s. Tropicana.
The respondents gave one year warranty for the complete refrigerator and all parts thereof (except the light bulb and the crisper glass).
During this warranty period, they provide free repair and replacement for defects in material and workmanship under normal use and service.
This free service is available only within the municipal limits of the area served by an office of the wholesale dealer of the authorised dealer from whom the refrigerator is originally purchased.
The respondents include the cost of this one year warranty in the sale price as well as assessable value of the refrigerator.
After the free warranty period of one year is over, the respondents offer a four year service contract only for the sealed system or parts thereof.
This contract is not free.
It is on payment basis.
Charges for it during the material period (10.4.81 to 30.6.86), in Civil Appeals Nos.
962 75 of 1988, varied from Rs. 300 to Rs.450 per refrigerator.
It is a fact that these four dealers enter into this contract with the respondents.
The final consumer in turn enters into the service contract with the dealer from whom he buys his refrigerator.
The service is rendered by the respondents and the entire contract money accrues to them.
It is on evidence that during the material period the four dealers referred to hereinbefore entered into service contract in respect of a total of 91% of their purchases.
The remaining 9% did not enter into such contract.
This is optional.
The Assistant Collector by his order dated 18th August, 1986 held that four year service charge is includible in the value of the Refrigerator for the purpose of assessment of central excise duty under section 4 of the Act.
The Assistant Collector further held that for all intents and purposes this charge was not optional as it was not exercised only in respect of 9% of the sales.
The Assistant Collector relied on the decision of this Court in Union of India and others etc.
vs Bombay Tyre International Ltd. etc.
; , where it was held that after sale service charges could not be deducted from the assessable value.
The Assistant Collector confirmed the demands totalling Rs.17,40,68,326.32 against the respondents (in Civil Appeals No. 962 74 of 1988) and Rs.7,07,535 (in Civil Appeal No. 727 of 1988).
The respondents herein filed an appeal before the Appellate Collector.
The Appellate Collector upheld the decision of the Assistant Collector.
There was an appeal to the Tribunal and the Tribunal held that the optional service charge during the second and third year after the expiry of the first year warranty period was not includible in the assessable value.
The Tribunal allowed the appeals of the assessee with consequential relief.
Hence these appeals come to this Court.
659 The point involved in these appeals is whether the four year service contract charge is includible in the value of the refrigerators for the purpose of assessment of Central Excise Duty under section 4 of the Act.
It was found as a fact by the Tribunal that after the free warranty period of one year is over, the respondent herein offer a four year service contract only for the sealed system or parts thereof.
This contract is not free.
It is on payment basis.
The contract is not compulsory and the four dealers entered into service contract in respect of 91% of their purchase.
They did not make the contract for the remaining 9%.
It is also not necessary that the contract should be made right at the time of purchase of the refrigerator from the respondents.
In fact it was found as a fact that some time contract was made only in less than 10% of the sales.
For the remaining 81% of the purchases, the dealers took time from one week to over six months from the date of purchase.
It was explained by the respondents that depending upon the demand pattern in a particular area, the dealer purchased about 10% of the refrigerators straightaway with the service contract; for the remaining purchases, he exercised the option later, as and when the dealer anticipated further demand from his customers.
The Tribunal on an analysis of the evidence came to the conclusion that it was after sale service and it was optional.
Therefore, such service charges were not includible in the assessable value of the respondents herein.
The principle under which these will be includible has been laid down in Union of India and others.
vs Bombay Tyre International Ltd. (supra), where Pathak, J., as the learned Chief Justice then was, inter alia, observed as follow: ". expenses incurred by the assessee upto the date of delivery on account of storage charges, outward handling charges, interest on inventories (stocks carried by the manufacturer after clearance), charges for other services after delivery to the buyer, namely, after sales service and marketing and selling organisation expenses including advertisement expenses cannot be deducted.
It will be noted that advertisement expenses, marketing and selling or organisation expenses and after sales service promote the marketability of the article and enter into its value in the trade.
Where the sale in the course of wholesale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by the assessee upto the date of delivery under the aforesaid heads cannot, on the same grounds, be deducted.
660 But the assessee will be entitled to a deduction on account A of the cost of transportation of the excisable article from the factory gate to the place or places where it is sold.
The cost of transportation will include the cost of insurance on the freight for transportation of the goods from the factory gate to the place or places of delivery.
" This aspect was later clarified by this Court in Assistant Collector of Central Excise and others vs Madras Rubber Factory Ltd. and others, , where Bhagwati C.J. at page 562 of the report observed as follows.
"Interest on finished goods from the date of the stocks are cleared till the date of the sale was disallowed by the Assistant Collector, Kottayam.
This head has again been urged for our consideration as a proper deduction for determination of the assessable value.
As quoted in our judgment in Union of India and Ors.
vs Bombay Tyres International Ltd. (supra), we have held that expenses incurred on account of several factors which have contributed to its value upto the date of sale which apparently would be the date of delivery at the factory gate are liable to be included.
The interest on the finished goods until the goods are sold and delivered at the factory gate would therefore necessarily, according to the judgment in Bombay Tyres International case (supra) have to be included but interest on finished goods from the date of delivery at the factory gate upto the date of delivery from the sales depot would be an expense incurred after the date of removal from the factory gate and it would therefore, according to the judgment in Bombay Tyres International case (supra) not be liable to be included since it would add to the value of the goods after the date of removal from the factory gate.
We would therefore have to allow the claim of MRF Ltd. as above.
" It was mentioned before us by the learned Additional Solicitor General that this judgment is under review.
The Tribunal in its judgment herein has observed as follows: "We have given enough facts in paragraph 2 above to show that the four year service contract charge in the present was 661 not compulsory one.
As to why the appellants ' buyers chose not to enter into such contract only for about 9% of the purchases and not more is a matter between the manufacturer and his customers.
The percentages may look small but the statement of sales filed before us for the five year period (1981 86) shows that the number of Refrigerators in respect of which the option was not exercised was in thousands, ranging from over 18,000 to over 39,000 per year.
We find no force in the department 's pleading that the service charge, for all intents and purposes, was a compulsory one.
As to what machinery the appellants devised for extending this service is not material.
If any customer did not like to have the service, there was no compulsion on him to go in for it.
That is the important thing.
Once we reach the conclusion that the post warranty service activity could not be subjected to excise, it ceases to be material that 91% of the customers had opted for the service contract.
The ordinary or normal price referred to in section 4(1)(a) can take in the costs upto the stage of factory gate and not beyond as held by the Hon 'ble Supreme Court.
" The Tribunal also observed that the respondents herein offered the four years service by a stamped endorsement on their sale invoice itself, it did not mean that the subsequent exercise of option by the buyer related back to the date of purchase itself.
It was also found that there was no evidence to conclude that the service contract was a facade to split the true value of refrigerators into taxable and nontaxable components.
In that view of the matter, the Tribunal set aside the order of the Collector of Central Excise (Appeals) and allowed the appeals.
The contract for four years warranty service was optional, which was entered into later on.
This is clearly after sale facility and cannot be includible in the assessable value of the refrigerators.
In the aforesaid view of the matter, the Tribunal was right in the view it took.
These appeals fail and are accordingly dismissed.
G.N. Appeals dismissed.

summary:
The Respondents, manufacturers of refrigerators, give one year warranty for the complete refrigerator and all parts thereof.
During this warranty period, they provide free repair and replacement for defects in material and workmanship under normal use and service.
They include the cost of this one year warranty in the sale price as well as assessable value of the refrigerator.
After the free warranty period of one year, the respondents offer a four year service contract only for the sealed system or parts thereof.
This contract is on payment which may vary from Rs.300 and Rs.400 per refrigerator.
The dealers enter into contract with the Respondents, and the consumer in turn enters into contract with the dealer from whom he buys his refrigerator.
The service is rendered by the Respondents and the entire contract money accrues to them.
Though the contract is optional, 91% of Customers did enter into this contract, and only 9% did not.
The Assistant Collector held that the four year service charge is includible in the value of the refrigerator for the purpose of Central Excise dub under section 4 of the Act.
The Appellate Collector upheld the said decision.
On appeal the Tribunal held that the said optional service charge was not includible in the assessable value.
These appeals by Revenue under Section 35L(b) of the Act are against the Tribunal 's decision.
Dismissing the appeals, this Court, ^ HELD: 1.
The contract for four years warranty service was optional which was entered into later on.
This is clearly after sale 657 facility and cannot be includible in the assessable value of the refrigerator.
[661G] 1.2 The Tribunal was right in the view it took that the optional service charge after the expiry of the first year warranty period was not includible in the assessable value.
It rightly observed that if any consumer did not like to have the service, there was no compulsion on him to go in for it and once the conclusion is reached that post warranty service activity could not be subjected to excise, it ceases to be material that 91% of the customers had opted for the service contract.
The Tribunal also observed that the respondents offered the four year service by a stamped endorsement on their sale invoice itself, but it did not mean that the subsequent exercise of option by the buyer related back to the date of purchase itself and that there was no evidence to conclude that the service contract was a facade to split the true value of refrigerators into taxable and non taxable components.
[658H;661D F] Union of India and Others etc.
vs Bombay Tyre Interna tional Ltd.; , and Assistant Collector of Central Excise and others vs Madras Rubber Factory Ltd. and others, , referred to.


judgement:
ON: Civil Appeal No. 1945 of 1984.
From the Judgment and Order dated 16.12.1983 of the Bombay High Court in W.P No 4356 of 1983.
R. Karanjawala.
Mrs. Manik Karanjawala and Ejaz Maqbool for the Appellants.
PG NO 62 T.S. Krishnamurthy, R.N. Keshwani, Dilip Jhangiani, V.K. Punwani and M.K.D. Namboodiri for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave is directed against the judgment and order of the High Court of Bombay dated 16th December 1983 declining to interfere with the judgment and order of the Maharashtra State Cooperative Appellate Court, Bombay dated 31st October, 1983.
By the impugned judgment the Appellate Court up held the judgment and order passed by the Judge, First Cooperative Court, Bombay dated 28th August, 1981 directing the appellants to vacate and hand over possession of Flat No. 16 on First Floor of Block No. 8 in the housing colony known as Shyam Niwas, situate at Warden Road, now called Bhulabhai Desai Road, Bombay and to pay mesne profits @ Rs.450 per month and a further amount of Rs.42.50 towards maintenance, car parking and water charges w.e.f.
Ist August 1981.
The facts of the case are as follows.
By an agreement in writing dated 1st January 1964, the disputant the late Smt.
Devibai H. Advani, who was a tenant co partner member, permitted the appellants ' father Rajpal Bhatia, user of her Flat No. 16 for a period of 11 months as from that date on the terms and conditions stated in the said agreement.
Both the parties made a joint application for admission of the said Rajpal Bhatia as a nominal member of the society and the society granted the requisite permission for his occupying the flat in dispute on terms of leave and licence.
At the request of Rajpal Bhatia, the said agreement for leave and licence was renewed for 11 months each by further agreements and thereafter the period was further extended 11 months by an endorsement.
The late Smt.
Devibai Advani by her lawyer 's notice dated 21st May 1969 terminated the agreement for leave and licence.
On 30th June 1969 she made a claim under section 91 of the Maharashtra Cooperative Societies Act, 196() (for short the Act ') before the District Deputy Registrar for the eviction of the said Rajpal Bhatia alleging him to be in unauthorised occupation of her flat.
The claim as laid by her was that she was a 'tenant member ' of the society and that Rajpal Bhatia was in unauthorised occupation.
Her claim for eviction was however register by Rajpal Bhatia inter alia on the ground that the transaction between the parties was one of lease and not of licence and therefore the Registrar had no jurisdiction to enter upon the reference under section 91 of the Act inasmuch as his jurisdiction to enter upon such claim was barred under section 28 of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (Bombay Rent Act for short).
That objection of his PG NO 63 was sustained by the Officer on Special Duty by his judgment and award dated 16th November 1972.
The learned Officer on Special Duty held that the parties stood in the jural relationship of landlord and tenant and further that the dispute in question did not touch upon the business of the society within the meaning of section 9 1 of the Act.
Aggrieved, the disputant the late Smt.
Devibai Advani carried an appeal to the Maharashtra State Cooperative Appellate Tribunal.
The Tribunal by its judgment and order dated 8th February 1974 allowed the appeal and remanded the case for a decision afresh on the question whether the disputant the late Smt.
Devibai Advani was a tenant co partner member or a tenant owner member.
It is however necessary to mention that the Tribunal held that the society was a mixed type of society having both tenant co partner members and tenant owner members but since the disputant described herself as a tenant member, and particularly having regard to the fact that Rajpal Bhatia get himself admitted as a nominal member queried: If she was an owner member where was the necessity of taking permission of the society for letting the flat? Nor was there any necessity for Rajpal Bhatia to seek admission as a nominal member which made him subject to the bye laws of the society.
According to the Tribunal, these circumstances were more in consonance with the status of the disputant being a tenant member.
It went on to say that there was no evidence led to establish that the flat in question was sold to the disputant and accordingly remitted the aforesaid issue for a decision afresh.
During the tendency of the appeal, the late Smt.
Devibai Advani made an application praying that the society be transposed as disputant No. 2.
Despite the opposition of Rajpal Bhatia.
the application for transposition was ultimately allowed.
Initially when the society was registered, it was really governed by the regulation in Form 'A '.
It however appears that by mistake, as is evident from the affidavit sworn by Atmaram Jhangiani, Chairman of the society, regulation in Form 'P ' which relates to tenant owner members was adopted.
This mistake was detected in the year 1949 and accordingly at the Annual General Meeting of the society held on 3rd September 1949 it was declared that Form 'B ' was inapplicable and therefore the mistake was rectified by a unanimously carried resolution that regulation in Form 'A ' be adopted instead of regulation in Form 'B '.
The District Deputy Registrar, Cooperative Societies, Surat by order dated 10th July 1950 approved of the amendment and accordingly Form 'A ' was adopted and Form 'B ' deleted.
The PG NO 64 modification in the byelaws was approved by a resolution carried at the General Body Meeting of the society held on 26th November 1950 and forwarded to the District Deputy Registrar for approval.
After the adoption of Form 'A ', byelaw 10(a) pro tanto stood amended.
Due to sheer inadvertence, however, byelaw 10(a) remained in the form it was framed and this has given rise to an endless argument before us.
In the certificate to incorporation issued by the Registrar, Cooperative Societies the society is classified as a tenant co partnership society consisting of tenant co partner members.
The mistake in allowing the byelaw 10(a) as originally framed making reference to tenant owner members, came to the notice of the society in 1974 when the said byelaw was deleted and substituted by a fresh byelaw 10(a) which made no reference to the admission of membership of any owner member to the society or to the regulation in Form 'B '.
On remand, the only contention advanced before the Judge, First Cooperative Court, Bombay was that the society was a tenant co ownership type of society and not tenant co partnership type.
The learned Judge by his order dated 8th September 1976 recorded a finding that the society, in fact, was a tenant co partnership type of society and therefore the disputant was only a tenant co partner member.
Against his order Rajpal Bhatia went up in revision to the Maharashtra State Cooperative Appellate Court which by its order dated Ist July 1977 dismissed the revision as not pressed.
Thereafter, the dispute came up for adjudication before the learned Judge, First Cooperative Court, Bombay who framed five issues in all.
The learned Judge allowed the parties to adduce their evidence thereon.
After considering the evidence on record, the learned Judge by his judgment dated 28th August 1981 came to a definitive finding that the claim of the disputant was a claim touching the business of the society under section 91 of the Act: that the society is a co partnership type of society and not of co ownership; that the real nature of the transaction between the parties was that embodied in the formal agreement for leave and licence dated 1st January 1964 and further that after termination of the licence the possession of the said Rajpal Bhatia was wrongful.
According, the learned Judge rendered an award directing the said Rajpal Bhatia to vacate and hand over possession of the flat in question.
The appellants ' father Rajpal Bhatia went up in appeal before the Maharashtra State Cooperative Appellate Court but without any avail.
It held inter alia that in view of the letter addressed by the District Deputy Registrar, Cooperative Societies, Bombay dated 22nd November 1978 intimating the Court that Form 'B ' had been deleted after PG NO 65 the resolution passed at the Annual General Meeting held on 3rd September 1949 and the amendment of the byelaws effected by order of the District Deputy Registrar dated 10th July 1950, and particularly in view of the fact that in the latest copy of the bye laws there is no reference to Form 'B ', the conclusion was inescapable that the society is a tenant co partnership housing society and Form 'B ' as was originally appended to the byelaws was no longer applicable.
It observed that in view of its earlier judgment in Appeal No. 236/78 Messrs Bharat Sales Service & Anr.
vs Smt.
Rukibai Naraindas Bhavnani & Anr., decided on 12th January, 1979 taking that view upon investigation into the facts, which was upheld by the High Court in O.N. Bhatnagar vs Smt.
Rukibai Naraindas Bhavnani & Anr., in Miscellaneous Petition No. 271/79, decided on 21st April 1981, and later by this Court in O.N. Bhatnagar vs Smt.
Rukibai Naraindas, ; , it was no longer possible to contend that Shyam Cooperative Housing Society Limited was a tenant ownership housing society and not a tenant co partnership housing society.
It further observed that in view of the decision of this Court in O. N. Bhatnagar s case, learned counsel appearing for the appellants conceded the legal position but contended that the decision in O.N. Bhatnagar was distinguishable on facts.
It observed: "It has to be noted that Form A ' was made applicable to all the buildings of the society and not to a particular block or building.
No doubt, the byelaws of the society were amended much later i.e., in the year i976 though the resolution proposing the amendment was passed in the meeting held on 25.12.1974.
It appears that, though Form 'A ' was made applicable in the year 195() to the society corresponding amendment was made on 25th December, 1974 and thereafter it was approved on 28th April, 1976.
That will not make any difference because once Form 'A ' is made applicable and once Form 'B ' is deleted from the bye laws the intention of the society was to convert the society to a Tenant Co partnership type of society.
Moreover, it has to be noted that the present appellant was inducted in the said premises on 1st January, 1964, i e. much after the Form 'A ' was adopted.
As mentioned above, it is not open to the present appellant to challenge the status of the respondent No. I Devibai because, as mentioned above, the respondent No. I had surrendered her status as tenant owner and had become tenant copartner member of the society.
Under these circumstances, there is no other alternative but to hold PG NO 66 that the society is not a mixed type of society but it is a tenant co partnership type of Society." Further, the Appellate Court held that merely because the disputant described herself as the owner of the flat was not decisive of the question as to whether she was a tenant co partner member or a tenant owner member, and added: "Even though the respondent No. 1 described herself as the owner of the flat, we feel that as she has purchased the flat from the society she might have described herself as the owner.
In common parlance the flats which are purchased from the society or from the builders are called as ownership flats and very often we find that even a member in a tenant co partnership type of society describes himself or herself as owner of the flat, either because he has purchased the flat or he has contributed towards the cost of the construction.
In the light of the principles laid down by this Court in Associated Hotels of India Ltd. vs R.N. Kapoor, [1960] I SCR 368 the Appellate Court further held on a consideration of the evidence adduced by the parties that the parties intended by the agreement to create a licence and not a lease.
It also held that the dispute was a dispute touching the business of the society.
Shri R.F. Nariman, learned counsel for the appellants argued the appeal with great clarity, much resource and learning we heard him with considerable interest.
It was contended, firstly, that the intention Of the disputant the late Smt.
Devibai Advani was to demise the flat in question and therefore the real transaction was one of lease though camouflaged in the form of an agreement for leave and licence and therefore the jurisdiction of the Registrar under section 91 of the Act to adjudicate upon the reference was barred by section 28 of the Bombay Rent Act; and secondly, that neither of the two resolutions subsequently adopted by the Annual General Meeting or the General Body Meeting nor the order of the District Deputy Registrar could change the intrinsic character of the real status of the disputant who was admittedly a tenant owner member, and the finding of the Appellate Court that she must be deemed to have relinquished her status as tenant owner member and became a tenant co partner member of the society is patently erroneous.
Learned counsel very candidly accepted that he does not rely upon section PG NO 67 15A of the Bombay Rent Act.
That had to be so because in the first place his entire submission proceeds on the basis that the transaction between the parties was one of lease and not of licence and secondly, even otherwise, the licence having admittedly been terminated by the disputant 's notice dated 2Ist May 1969, there was no subsisting licence existing as on 1st February 1973 and section 15A interms would be inapplicable.
We are afraid, in view of the decision of this Court in O.N. Bhatnagar s case, the contentions advanced by the learned counsel cannot prevail.
There can be no doubt whatever from the terms of the agreement dated Ist January 1964 as well as the overwhelming evidence on record taken in conjunction with the facts and circumstances appearing, coupled with the course of conduct of the parties that the real transaction was one of lease and not of licence.
The agreement between the parties is embodied in the usual standard form of an agreement for leave and licence.
The parties being executants thereof are bound by the terms of the agreement.
There is nothing to suggest that the agreement for leave and licence was merely a device to camouflage the real nature of the transaction viz. creation of a tenancy, which would clearly be against the bye laws of the society.
The disputant the late Smt.
Devibai Advani, the licensor, was only a tenant co partner member and all that she could do under the terms of the bye laws was to create a licence with the permission of the society by making the licensee to be a nominal member thereof.
The evidence adduced by the disputant clearly shows that the flat in question was taken on a licence for a term of 11 months which was renewed from time to time at the request of the late Rajpal Bhatia till the disputant terminated the licence by notice dated 21st May 1969.
We also find no merit in the contention that the jurisdiction of the Cooperative Courts to adjudicate upon the dispute under section 91 of the Act was barred by section 28 of the Bombay Rent Act.
The matter is directly covered by the decision of this Court in O.N. Bhatnagar 's case.
In rejecting the contention that a dispute of this nature was not a dispute touching the business of the society within the meaning of section 91(1) of the Maharashtra Cooperative Societies Act.
it was observed: "In the present case, the society is a tenant co partnership type housing society formed with the object of providing residential accommodation to its co partner tenant members.
Now, the nature of business which a society carries PG NO 68 on has necessarily to be ascertained from the object for which the society is constituted, and it logically follows that whatever the society does in the normal course of its activities such as by initiating proceedings for removing an act of trespass by a stranger, from a flat allotted to one of its members, cannot but be part of its business.
It is as much the concern of the society formed with the object of providing residential accommodation to its members, which normally is its business, to ensure that the flats are in occupation of its members, in accordance with the bye laws framed by it, rather than of a person in an unauthorised occupation, as it is the concern of the member, who lets it out to another under an agreement of leave and licence and wants to secure possession of the premises for his own use after the termination of the licence.
It must, therefore, follow that a claim by the society together with such members for ejectment of a person who was permitted to occupy having become a nominal member thereof, upon revocation of licence, is a dispute falling within the purview of section 91(1) of the Act.
" In dealing with the inter relation between the non obstante clause in section 91(1) of the Act and that in section 28 of the Rent Act, it was observed: "It seems to us that the two Acts can be best harmonised by holding that in matters covered by the Rent Act, its provisions, rather the provisions of the Act, should apply.
But where the parties admittedly do not stand in the jural relationship of landlord and tenant, as here.
the dispute would be governed by section 91(1) of the Act.
No doubt, the appellant acquired a right to occupy the flat as a licensee, by virtue of his being a nominal member, but in the very nature of things, his rights were inchoate.
In view of these considerations, we are of the opinion that the proceedings under section 91(1) of the Act were not barred by the provisions of section 28 of the Rent Act. ' ' It is quite evident from the affidavit sworn by Atmaram Jhangiani, Chairman of the Shyam Cooperative Housing Society Limited, that the society is purely a tenant co partnership type of Housing society consisting only of tenant co partner members and there are no tenant owner members in the society; nor are there any tenant owner members in block No. X where the flat in question is located.
As H already stated, while framing the bye laws regulation in Form 'B 'was PG NO 69 by mistake adopted.
This mistake was realised in 1949 and at the Annual General Meeting of the society held on 3rd September 1949 it was decided that the regulation in Form 'B ' was inapplicable and therefore the mistake was rectified by deleting Form 'B ' and substituting Form 'A '.
This amendment was duly approved by the District Deputy Registrar, Bombay by his order dated 10th July 1950.
The aforesaid resolution was duly ratified at the General Body Meeting of the society.
That being so, bye law 10(a) making a reference to tenant owner members became a mere superfluity and was wholly redundant.
The rights of the parties cannot be spelled out from the terms of the bye law 10(a) as originally framed.
Nor would the mere description by the disputant the late Smt.
Devibai Advani describing herself to be the owner of the society, affect the classification of the society because she was, in fact and in law, nothing but a tenant co partner member.
It also appears from the certificate of registration issued by the Registrar, Cooperative Societies that the society was classified as a tenant co partnership housing society.
The erroneous description in bye law 10(a) of the society having tenant owner members came to be rectified when the said bye law was replaced in l974 by a new bye law 10(a).
In view of the subsequent change brought about by the amendment of the bye laws, there was no question of the disputant being regarded as a tenant owner member.
The Appellate Court as well as the learned Judge of the First Cooperative Court have rightly held her to be a tenant co partner member.
The appellants ' father Rajpal! Bhatia having been inducted into the premises under the terms of the agreement for leave and licence dated 1st January 1964, cannot be heard to say that disputant was a tenant owner member and not a tenant co partner member or that the transaction was one of lease and not of licence.
These aspects are concluded by the concurrent finding of fact based on appreciation of evidence recorded by the Courts below.
There is no reason for us to come to a contrary conclusion.
We cannot but briefly refer to a few of the decisions cited.
As explained in the affidavit sworn by Atmaram Jhangiani.
Chairman of the society, the decision in Sabharwal Brothers vs Smt Guna Amrit Thandani, [1973] I SCR 53 proceeds on the assumption that Smt.
Guna Amrit Thandani was an owner member.
It appears that the true and correct factual position was not placed before the Court that under the changed bye laws of the society, particularly after the deletion of Form 'B ', she could only he a tenant co partner member.
It follows that the ultimate conclusion arrived at was based upon inaccurate facts.
Be that as it may, a decision based upon a statement of inaccurate facts which has no semblance of reality would not change the actual PG NO 70 legal status of the society as a tenant co partnership type of housing society, nor the classification made by the Registrar, Cooperative Societies in his certificate of incorporation issued by him, classifying the society as a tenant co partnership society consisting only of tenant co partner members.
In view of the real factual position now brought out, it is difficult to come to the conclusion that the society was a mixed type of society or that the building in question where the flat in dispute is situate, was a multi storeyed building consisting of residential flats of both types viz. tenant owner flats and tenant co partnership flats.
In any event, the decision in Sabharwal Brothers case is clearly distinguishable on facts.
The contention of Shri Nariman that the society was a mixed type of society must therefore fail.
The decision of this Court in Ramesh Himmatlal Shah vs Harsukh Jadhavji Joshi, [ is also distinguishable.
In that case, the question was whether a flat in a tenant co partnership housing society was liable to attachment and sale in execution of a decree.
The Court laid down that the right to occupy the flat owned by a cooperative housing society is a species of property.
It was further held that there was nothing in the language of section 31 of the Maharashtra Cooperative Societies Act to indicate that the right to occupation of such a flat which was the right sought to be sold by auction, was not attachable in execution of the decree.
Nor was there anything in the section to even remotely include a prohibition against attachment or sale of the aforesaid right to occupation of the flat.
The only restrictions under section 29(2) of the Act are that the member may not transfer his interest in the property prior to one year and the transfer is made to an existing member of the society or to a person whose application for membership has been accepted by the society.
As regards bye law 710 the Court observed that any contravention of the bye law would not make the assignment invalid under the Act unlike in the case of a transfer being void under section 47(3).
Further, that section 29 read with r. 24 shows that there is no prohibition as such against transfer of a share to a member or even to a non member if he consents to be a member and makes an application for membership, by purchasing five shares as provided under bye law 9.
The ultimate decision of the Court was that the right to occupation ot ' a flat is property both attachable and sale able, inasmuch as section 60 of the Code of Civil Procedure, l908, is not exhaustive as such.
It also refers to any other sale able property, movable or immovable, whether the same be held in the name of the judgment debtor or by another person on his behalf.
The right to occupation of a flat is property both attachable and sale able.
Specific non inclusion of a particular species of property under section 60 is PG NO 71 therefore not of any consequence if it is sale able otherwise.
the decision in Ramesh Himmatlal Shah 's case is therefore of little or no assistance.
Chainani, CJ speaking for himself and V.M. Tarkunde, J. in Dr. Manohar Ramchandra Sarfare vs The Konkan Co operative Housing Society Ltd. & Ors., brought out the true concept of a tenant co partner housing at p. 157 in these words: "(T)he property in the whole estate remains absolutely with the society as a whole.
The member contributes in the first instance by shares and then pays rent so calculated as to cover not only the economic rent of his tenant or house, but also an amortization or sinking fund payment, which at the end of 25 years or 40 yars, as the case may be, repays the whole value of the building.
At the end of that period, he is credited with further shares in the society equivalent to the value that he has paid up and the normal interest on these shares is equal to the economic rent which he has to pay.
At the end of the period he is therefore in the position of occupying the building free of rent Or merely so as a tenant of the society of which he is himself a member and therefore a controlling authority.
" See also: I.R. Hingorani vs Pravinchandra, ; Contessa Knit Wear vs Udyog Mandir Cooperative Housing Society.
and Bandra Green Park Co operative Housing Society Ltd. & Anr.
vs Mrs. Dayadasi Kalia & Ors.
These cases more or less reflect the different views that have prevailed in the High Court but the law is now governed by the principles laid down by this Court in O. N. Bhatnagar 's case .
The result therefore is that the appeal must fail and is dismissed(l with costs.
The appellants are however given six months ' time to vacate the disputed premises on their furnishing the usual undertaking to the Registrar of this Court within four weeks from today in the form of affidavits sworn by each one of them that they shall deliver vacant and peaceful possession to respondents nos.
i and 2 on or after 31st March 1989 and shall not in the meanwhile part with, assign or otherwise encumber the premises in any manner.
S.L. Appeal dismissed.

dataset_name: IN-Abs

summary:
By an agreement dated 1st January, 1964, the disputant, a tenant Co partner member of a Cooperative Housing Society, permitted appellants ' father the user of her flat.
On a joint application by both the parties, the Society granted permission for his occupying the flat on terms of leave and licence.
The disputant later made a claim under section 91 of the Maharashtra Cooperative Societies Act, 1960 (`the Act ') before the District Deputy Registrar for his eviction.
The claim for eviction was resisted by him on the ground that the transaction between the parties was one of lease and the Registrar had no jurisdiction to enter upon the reference under section 91.
It was held that the parties stood in the jural relationship of landlord and tenant and the dispute did not touch upon business of the Society within the meaning of section 91.
Aggrieved, the disputant carried an appeal to the Maharashtra State Cooperative Appellate Tribunal.
The Tribunal remanded the case for a fresh decision on the question whether the disputant was a tenant co partner member or a tenant owner member, as the society was held to be a mixed type of society of both tenant co partner members and tenant owner members.
On remand, the Judge.
first Cooperative Court recorded a finding that the Society was a tenant Co partnership type of society and the disputant was only a tenant Co partner member.
Thereafter the dispute came up for adjudication before the said Judge.
The Judge rendered an award holding that after the termination of the licence the possession of appellants ' father was wrongful, and directing him to vacate and hand over possession of the flat.
He went in appeal before the Maharashtra State Co operative Appellate Tribunal but without avail.
Dismissing the appeal, the Court, HELD: The agreement between the parties was embodied in PG NO 60 PG NO 61 usual standard form of an agreement for leave and licence.
The parties to the agreement were bound by the terms thereof.
There was nothing to suggest that the agreement for leave and licence was merely a device to camouflage the real nature of the transaction, viz., creation of a tenancy, which would clearly be against the bye laws of the society.
The disputant, the licensor, was only a tenant co partner member and all hat she could do under the terms of the bye laws was to create a licence with the permission of the society by making the licensee to be a nominal member thereof.
The matter is directly covered by the decision of this Court in O.P. Bhatnagar vs Smt.
Rukibai Narsindas, ; [67C E] The Society was purely a tenant co partnership type of housing society consisting only of tenant co partner members and there were no tenant owner members in the society.
In view of the subsequent change brought about by the amendment of the bye laws, there was no question of the disputant being regarded as a tenant owner member.
The Appellate Court and the Judge of the First Cooperative Court rightly held her o be a tenant Co partner member.
The appellant 's father having been inducted into the premises under the terms of the agreement for leave and licence could not say that the disputant was a tenant owner member and not a tenant co partner member or that the transaction was one of ease and not licence.
[68G; 69D E] Sabharwal Brothers vs Smt.
Guna Amrit Thandani, [1973] I SCR 53 and Ramesh Himmatlal Shah vs Harsukh Jadavji Joshi, , distinguished.
O.P. Bhatnagar vs Smt.
Rukibai Narsindas, ; ; Dr. Manohar Ramchandra .Sarlare vs The Konkan Co operative Housing Society Ltd. & Ors., , I.R.; Hingorani vs Pravinchandra, ; Contessa Knit Wear vs Udyog Mandir Cooperative Housing Society, and Bandra Green Park Co operative Housing Society Ltd. & Anr.
vs Mrs. Dayadasi Kalia