judgement:
ivil Appeal No. 2110 of 1987.
From the Order dated 8.6.1987 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED/SB/145/84 C in Order No. 440/87 C. M.K. Banerjee, Solicitor General, P. Parmeshwaran, Mrs. Radha Rangaswamy and Mrs. Sushma Suri for the Appellant.
J.S. Kapil, Krishan Kumar and Vimal Dave for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
The Collector of Central Excise, Kanpur, is the appellant in this appeal under section 35L(b) of the (hereinafter called `the Act ').
The period involved in this appeal is the assessment period from 25th March, 1979 to 24th September, 1979, a period of about six months.
The respondent M/s. Krishna Carbon Paper Company was engaged in the manufacture of carbon papers.
During the period from 25th March, 1979 to 24th September, 1979 the respondent manufactured and cleared from its factory a quantity of 5601 boxes, 20,288 reams and 45 packets of carbon papers for a total value of Rs.7,67,498.40 without payment of any duty under the Act.
The Superintendent of Central Excise Lakhimpur Kheri, issued notice to the respondent demanding central excise duty on carbon paper cleared during the aforesaid period under section II A of the Act.
The respondent submitted a written reply stating that the notice was without jurisdiction because the respondent had taken out the central excise PG NO 15 licence immediately on the direction of the department and it was only after February 28, 1982 that the product was subjected to duty under sub item (3) of item 17 by the Central Excise Budget of 1982.
In support of this contention, the respondent relied on Notifications Nos. 187/82 and 69/82, both dated 28th February, 1982.
It was contended that the carbon paper was a new item which was specified under sub item (3) of item 17 of C.E.T.
According to the revenue, however, that the recasting of Tariff Item 17 in 1976 was irrelevant and that the carbon being akin to coated paper (one side or both side) was covered under sub item (2) of item 17 of the C.E.T. since 1976.
The submission of the respondent was that sub item (3) of item 17 of the C.E.T. covering the carbon paper including copy paper was inserted by the Central Excise Budget 1982, but it does not make any retrospective change.
It was, according to the appellant, an introduction of specific name or variety of paper for being subjected to a different rate of duty.
The carbon paper remained a coated paper already covered under sub item (2) of item 17 of C.E.T.
The Assistant Collector of Central Excise, Sitapur, by his order dated 27/30th April, 1983, confirmed the demand for basic excise duty amounting to Rs.1,15,124,76 and special excise duty of Rs.5,756.23 on carbon paper cleared during the period from 25th March, 1979 to 24th September, 1979.
The Appellate Collector, however, set aside the order of the Assistant Collector and was of the view that the carbon paper could not be classified under Tariff Item 17(2) of the Act, as it was before 1982.
The Collector (Appeals) accepted the respondent 's contention that the carbon paper was brought under the purview of Tariff Item 17 for the first time in 1982 when it was introduced as sub item (3) of Item 17 of the First Schedule to the Act with effect from 1st March, 1982.
Being aggrieved thereby the appellant preferred an appeal before the Appellate Tribunal.
The Appellate Tribunal dismissed the appeal.
Hence, this appeal.
The question for decision in this appeal is whether carbon paper before the introduction of Central Excise Budget in 1982 and consequential amendment in tariff, fell under item 68 of the First Schedule to the Act, as held by the Tribunal or under item 17(2) of the Tariff Item, which was claimed by the Collector of Central Excise.
Following its previous decision in the case of Sai Giridhara Supply Co. vs Collector of Central Excise, Bombay, [1987] 23 E.L.T. 438 Tribunal, the Tribunal upheld the contention of the respondent and held that for the period before the amendment of Central Excise Budget, in 1982, carbon paper fell under Tariff Item 68 and not under Tariff Item 17(2), as it then was.
The Tribunal did not go into the question of the PG NO 16 limitation, namely, whether the claim was barred in any event by the lapse of time in view of section 11 A of the Act.
The Tribunal came to the finding that the carbon paper in question fell under Tariff Item 68 of the Central Excise Tariff.
Shri Kapil on behalf of the respondent submitted before us that the claim, in any event, was barred by lapse of time in view of section 11 A of the Act.
In view of the fact that the Tribunal did not decide this question if we are persuaded to reject the revenue 's contention in this appeal, the matter has to be remanded back to the Tribunal to decide this question as to limitation, as there is no decision of the Tribunal on this aspect of the matter.
Before the contentions are appreciated, it will be appropriate to refer to the position of Tariff Item 17 at three different phases, namely, in 1975, after the amendment in 1976 and after the further amendment to item No. 17 by the Finance Act of 1982.
Item No. 17 was amended with effect from 27th February, 1982 and two specific entries were added.
These were (3) and (4).
It is necessary to set out in the position at different points of time.
It was as follows: "Tariff Item 17 Position in I975 Item No. Description of goods Rate of Duty 17.
Paper, all sorts (including paste board, mill board, strawboard and cardboard), in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power (1) Cigarette tissue Rs. 3 per Kg.
(2) Blotting, toilet, target tissue Rs. 1 and 20 other than cigarette tissue paise per kg.
teleprinter, typewritting; manifold, bank, bond, art paper, chrome paper, tubsized paper, cheque paper, stamp paper, cartridge paper, (waxed paper, polythelene coated paper), parchment and coated board (including art board, chrome board and for playing cards) PG NO 17 (3) Printing and writing paper, 90 paise per kg.
packing and wrapping paper, strawboard and pulp board, including grey board, corrugated board, duplex and triplex boards, other sorts (4) All other kinds of paper and Re. 1 and 20 paper board, not otherwise paise per kg.
specified.
Position in 1976 17.
Paper and Paper Board,All sorts Thirty percent (including paste board, mill board ad valorem.
straw board, cardboard and corrugated board), in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power (1) Uncoated and coated print and writing paper (other than poster paper) Twenty five per cent ad valorem (2) Paper board and all kinds of paper (including paper or paper hoards which have been subjected to various treatments such as coating, impregnating corrugation, creping and design printing), not elsewhere specified.
There was further amendment to Item No 17 by the Finance Act of l982.
Item 16 was amended with effect from 27.2 1982, and two specific entries were added.
They are (3) and (4) which are reproduced below: Item No. Description of goods Rate of Duty 17.
xx xx xx (3) Carbon and other copying papers 32 1/2% ad (including duplicator stencils) and valorem papers, whether or not cut to size and whether or not put to in boxes PG NO 18 (4) Boxes, cartons, bags and other 32 1/2% ad packing containers (including flattened valorem or folded boxes and flattened or folded cartons), whether or not printed and whether in assembled or unassembled conditions.
" The short question with which we are concerned is, whether during the relevant period, namely, 25th March, 1979 to 24th September, 1979 when the position mentioned above was prevailing, whether carbon papers could be included in "all kinds of paper including the paper which have been subjected to coating", would come within sub item (2) of item 17 as mentioned hereinbefore or under residuary item 68 of the Central Excise Tariff.
The Tribunal followed a previous decision in Sai Giridhara Supply Co. vs Collector of Central Excise, Bombay, (supra).
There, the Tribunal had discussed the various aspects of the matter and felt itself bound by the decision of the Karnataka High Court to which reference will be made later.
The Tribunal has referred to the observations of Buckley L.J. where the Lord Justice observed that once a precedent was held to be a binding one, then no deviation therefrom was permissible within the judicial polity except in the well accepted categories of cases enumerated in the judgment.
Those contingencies, the Tribunal found, were not applicable to the facts of this case.
It is well settled that in order to ascertain the correct meaning of a fiscal entry reference to a dictionary is apt to be a somewhat delusive guide, as it gives all the different shades of meaning.
In the instant case, our attention was drawn to the extract from the Oxford English Dictionary, Volume III, page 436 where the meaning of the word "paper" has been given.
It reads as follows: "Paper (pei 'per), sb.
Also 4 papure, 4 6 papir.
5 papire, papyre, (paupire, 5 6 pauper, 5 7 papyr, 6 papre.
[a. AF.
papir = OF, Papier (=Pr.
Papier, Cat.
Paper, Sp.
papel `paper ', It.
papira papyrus), ad.
L. papyrus the papyrus or paper reed of the Nile, also writing material made of it, a Gr.
nanvpos the papyrus reed.
From the writing sheets made of the thin strips of papyrus the name was transferred to paper made of cotton, and thence to paper of linen and other fibres.
These extensions took place before the word became English, so that here its application to papyrus is only a later retrospective use.] PG NO 19 I.
The simple word.
*Without a or pl.
as denoting a particular kind).
I. A substance composed of fibres interlaced into a compact web, made (usually in the form of a thin flexible sheet, most commonly white) from various fibrous materials, as linen and cotton rags, straw, wood, certain grasses, etc., which are macerated into a pulp, dried, and pressed (and subjected to various other processes, as bleaching, colouring, sizing, etc., according to the intended use); it is used (in various forms and qualities) for writing; printing, or drawing on, for wrapping things in, for covering the interior of walls, and for other purposes.
" Our attention was also drawn to the meaning of the carbon paper in `Pulp and Paper Manufacture ', second edition.
volume II which has been described as follows: "Carbon paper is made by coating paper with a mixture consisting principally of a wax and a pigment.
The color is obtained from the pigment, usually a carbon black of low oil absorption, plus toners, usually lake pigments or oil soluble dyes, which are added to increase the blackness.
The wax, which acts as a binder for the pigment, must have a viscosity low enough to permit slight penetration into the paper, but not so low that the wax strikes through or sweats oil.
Waxes with a melting point between 105 to 120 F. and a viscosity of about 60 or 70 Saybolt at 210 F. are generally used.
The principal wax used is carnauba, although some ceresin, beeswax, candelilla, ozokerite. ouricury, and synthetic waxes are also used.
Special grades of micro crystalline waxes may be added to soften the coating and improve the printing qualities.
In addition to the above ingredients, non drying oils (mineral oils) are used to soften the coating and control the amount of coating transferred to the copy.
Oleic acid is sometimes used as a solvent for oil soluble dyes.
All carbon papers must be free of offset, flaking, wrinkles, curl, or other defects, and must give a good impression on the copy paper.
The coating must be hard enough not to smear in hot weather, but the exact degree of hardness depends upon the intended use, that is, whether PG NO 20 the paper is designed as a pencil carbon, a typewriter carbon, or a one time carbon.
The amount of coating varies from a very thin coating used in making one time carbons to a very heavy coating used in making high grade typewriter carbons for multiple use.
The latter, in which the paper may be reused up to 40 to 50 times, must have a coating of very high color value and the coating must be compounded so that only a small amount is transferred to the copy sheet.
A simplified formula for a typewriter carbon would be as follows: Carnauba was. . . . . .34% Ozokerite. . . . . . 6% Deeswax. . . . . . .7% Petrolatum. . . . . . 6% Mineral Oil. . . . . 25% Carbon black. . . . . .13% Toners. . . . . . 6% Oleic acid. . . . . . 3% In the coating of carbon paper, the molten was mixture is applied to the paper at a temperature of about 200 F. Coating is done on a carbon paper coater which consists of an inking roll which is supplied with coating directly from a bath or from a heated fountain.
The inking roll revolves in a direction opposite to that of the paper web.
Excess coating is scraped off the paper by an equalizer rod and the sheet then passed over a water cooled cylinder to chill and harden the coating.
Crystallization of the wax occurs Upon chilling, and this process continues over a period of several days.
For this reason, it is customary for cart on manufacturers to age their coated paper for two to seven days before shipping.
It is absolutely essential that the coating be absorbed evenly by the paper.
Therefore the paper must have a smooth surface, uniformly high density, good formation and above all, be free of pinholes.
Further requirements are high strength, low basis weight, and freedom from flaws such as slime spots and dirt specks.
Because of these rigid requirements, the base stock for carbon tissue is difficult to make.
The best grades made from new cotton or linen rags, or from manila hemp, whereas the cheaper grades are made PG NO 21 from sulfate and sulfite pulps.
The stock is beaten for a considerable period of time, often up to thirty hours, in order to develop maximum strength.
The stock is only lightly sized.
Calcium carbonate is often used as a filler, but the ash should not be over 5%.
The basis weight is usually 4, 5 1/2, 7, or 10 lb.
per ream (20 x 30 500).
The 4 1b.
paper is used when a large number of copies is to be made; the 5 and 7 lb.
papers are suitable for ordinary work.
Carbon paper under the specifications of the Indian Standard Institute, is described as follows: "Carbon Paper paper coated (generally on one side) with a pressure transferable pigmented layer, used for making copies at the same time as an original manuscript or typescript is made.
" It is well settled, as mentioned before, that where no definition is provided in the statute itself, as in this case, for ascertaining the correct meaning of a fiscal entry reference to a dictionary is not always safe.
The correct guide, it appears in such a case, is the content and the trade meaning.
In this connection reference may be made to the observations of this Court in Commissioner of Sales Tax, U.P.v.
S.N Bothers, Kanpur, AIR 1973 S.C.68 at page 80 para 5.
The trade meaning is one which is prevalent in that particular trade where that good is known or traded.
If special type of good is subject matte of a fiscal entry then that entry must be understood in the context of that particular trade, bearing in mind that particular word.
Where, however, there is no evidence either way then the definition given and the meaning following from particular statute at particular time would be the decisive test.
In the famous Canadian case in King V. Planters Nut and Chocolate Company Limited, [1951] C.L.R. exhibit 122 Cameron J. observed that it is not botanist 's conception as to what constitutes a fruit or vegetable. but rather what would ordinarily in matters of commerce in Canada be included there should be the guide.
Similarly, this Court has held in Union of India and Anr.
V. Delhi Cloth and General Mills Co. Ltd.; , at page 79 para 12 that the view of the Indian Standard Institute as regards what is refined oil as known to the market in India must be preferred in the absence of any other reliable evidence.
It must be PG NO 22 emphasised in view of he regards what is refined oil as known arguments advanced in this case that the meaning should be as understood in the particular trade.
In this case, we are construing not paper as such but a particular brand of paper with a meaning attributed to it.
Sub item (2)of item 17 as was the position in 1976 paper referred to all kinds of paper including paper or paper boards which have been subjected to various treatments such as coating, impregnating.
So, therefore, if all kinds of paper including coated paper is the goods, we have to find out the meaning attributed to those goods in the trade of those kinds of paper where transactions of those goods take place.
It is a well settled principle of construction, as mentioned before, that where the word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clearly expressed by the legislature.
This principle is well settled by a long line of decisions of Canadian, American, Australian and Indian cases.
Pollock J. pointed out in Grenfell vs I.R.C., [1876] I exhibit D 242 at 248 that if a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words "popular sense ' ' that which people conversant with the subject matter with which the statute is dealing would attribute to it.
The ordinary words in every day use are, therefore, to be construed according to their popular sense.
The same view was reiterated by Story, J. in 200 Chests of Tea, [ 1824] 9 Wheaton US 435 at 438 where he observed that the legislature does not suppose our merchants to be naturalists, or geologists, or botanists.
See the observations of Bhagwati, J. as the learned Chief Justice then was, in Porritts & Spencer (Asia) Ltd. vs State of Haryana,[l9791] I S.C.C. 82.
But there is a word of caution that has to be borne in mind in this connection, the words must be understood in popular sense, that is to say, these must be confined to the words used in a particular Statute and then if in respect of that particular items, an artificial definition is given in the sense that a special meaning is attached to particular words in the Statute then the ordinary sense or dictionary meaning would not be applicable but the meaning of that type of goods dealt with by that type of goods in that type of market, should be searched.
In the instant case, we have "all kinds of papers including papers subjected to coating, impregnating etc.
" If there is a market meaning or trade meaning of that kind of a paper that should be adhered to.
In this case, there is no direct evidence how these peculiar goods are dealt with in the particular market dealing with PG NO 23 those goods.
But there is evidence how these are to be understood in the light of the specifications of the Indian Standard Institute which we have mentioned before.
It is instructive to refer in this connection a passage of the Tribunal 's decision in Kores (India) Ltd. Thane vs Collector of Central Excise, Thane, , where the Tribunal observed that on the point whether carbon paper is understood as a coated paper in trade, there is authority of the Indian Standards Institute 's publication "Glossary of Terms used in Paper Trade and Industry" IS: 4661.
Therefore, understood in the accepted notion of construing entries of fiscal Statute not from a technical or scientific point of view but from the point of view of the people in the trade dealing with that particular type of goods and having regard to the evidence of the Indian Standard Institute and in the absence of any other evidence to the contrary, the Tribunal was justified in holding that on the basis of the definition of paper as it was in the year 1976 carbon paper would come within item 17(2)of the Tariff Items.
Learned counsel for the respondent placed reliance on the observations of this Court in State of Uttar Pradesh vs M/s. Kores (India) Ltd., [977] 1 SCR 837 where this Court was concerned with a notification under section 3 A of the U.P. Sales Tax Act, 1948 The question fell for consideration before this Court in that case was whether carbon paper was taxable as paper and further whether ribbon was accessory or part of typewriter.
This Court reiterated that a word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs.
The word has to be understood according to the well established canon of construction in the sense in which persons dealing with and using the article understand it.
For this principle this Court relied on the observations of Lord Tenterden in Attorney General vs Winstanley; , and the observations of Pollock, J. in Grenfell vs Commissioners of Inland Revenue, [ at 248.
Pollock, J. was construing the Stamp Act, where he correctly emphasised that the words should be construed in popular sense meaning thereby the sense in which people conversant with the subject matter with which the Statute is dealing, would attribute to it.
That is the correct test.
This Court observed further at page 839 of the report that in popular parlance, the word 'paper ' is understood as meaning a substance which is used for bearing, writing, or printing, or for packing, or for drawing on, or for decorating, or covering the walls.
Carbon paper is not commonly understood as paper.
This Court thus held that paper simpliciter cannot include carbon paper because that would not be in consonance with the popular PG NO 24 understanding of the expression "paper".
But where paper of a special type defined in the particular statute as one including paper which have been subjected to various treatments such as coating, impregnating, how that paper be understood, there must be evidence of that understanding.
In the absence of that evidence, the natural meaning following from the expression used in the statute should be adhered to.
In that light, it appears to us that in view of the facts of this c. se and in the principles of law as prevailing in 1976 papers of all kinds including paper with coating and impregnating and the views of the Indian Standard Institute, would include carbon papers .
Learned counsel drew our attention to the decision of the Karnataka High Court in Khoday Industries Ltd. vs Union of India and Ors., where the learned single Judge held that carbon paper is an article of statutory classifiable under item 68 of the Central Excise Tariff al1d not under item 17(2) as coated paper prior to its amendment with effect from 27th February, 1982.
He took into account the Trade Notice No. 56/76 and Tariff Advice No. 5/76.
The Trade Notice No. 5/76.
The issued by the Collector was based on the instructions issued by the Boarsl as per Tariff Advice No .5/76.
Carbon paper was commercially recognised only as an article of stationery falling under item 68 of the Central Excise Tariff and not under Item 17(2).
This was in respect of the position as it stood prior to 1976 when paper did not include coated paper or impregnated paper.
It appears from the said judgment of the High Court that the Trade Notice 56/76 was issued by the Collector on 2nd March, 1976 and Item 17 was amended on 27th May, 11976 and sub clause (2) as amended among other things included coated paper.
the trade notices and the tariff advices are not relevant, as such, in construing items in Tariff Schedule.
In this connection, reference may be made to the observations of this Court in Orient Paper Mills Ltd. V. Union of India, ; where this Court observed that a quasi judicial body exercising quasi judicial power is not bound by the directions of the Board.
There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department.
Therefore, trade notices as such issued by the Board are not relevant considerations.
The point which Shri Kapil, further, urged is that Item No. 17 was amended by the Finance Act of 1982 and two specific entries were added, namely, Items nos.
17(3) and 17(4) we have noted before.
His contention was that if the PG NO 25 carbon paper was already there then there was no purpose of introducing these subsequent amendments.
Shri Kapil relied on a Full Bench decision of the Government of India in the case of M/s. Colgate Palmolive (India) (P) Ltd., [1979] E.L.T. J 567 where the Government of India observed that it was well settled law that the proper rule of construction applicable to items and entries occurring in Excise Schedule should be to construe not in scientific or technical sense but in the sense as understood by the parties dealing with or commercially conversant with them.
The Government of India relied on the observations of this Court in Dunlop India Ltd. vs Union of India, A.I.R. 1977 S.C. 597.
So far as that principle is concerned, this is applicable.
It must be understood by the persons dealing with this particular type of goods.
We are concerned here not with paper simpliciter or how it is understood in common parlance but paper with a particular definition at the relevant time, namely, all kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating, impregnating) stated in that context.
In that context, it cannot be said that carbon paper cannot be coated paper as such.
Shri Kapil submitted that if carbon paper was there then there was no purpose for introducing two sub items by the Finance Act of 1982.
The Finance Minister, however, observed in his speech (extract of para 123 at page 38 39 of Part 'B ' dated 27th February, l982) as follows: "123.
I also propose to rationalise and restructure the tariff relating to paper and paper boards, the primary objective being to exempt small scale paper converters from payment of excise duty and to release them from excise control.
In order to recoup the consequent loss in revenue, I propose to raise the basic excise duty on industrial varieties of paper and paper boards by a small margin of 2 1/2 per cent ad valorem.
However, certain converted papers of high value added categories are proposed to be subject to basic excise duty at 32 1/2 per cent ad valorem.
Similarly, specified articles made of paper and paper board are proposed to be brought within the purview of the tariff item but effectively restricting the levy to printed cartons and printed boxes.
It appears that the Finance Minister was adding two items, one was 17(3) carbon and other copying papers and the second was 17(4) boxes, cartons, bags and other packing containers.
He mentioned in his speech that in order to recoup the consequent loss in revenue, he proposed to raise PG NO 26 the basic excise duty on industrial varieties of paper and paper boards by a small margin of 2 1i2 per cent ad valorem.
Tariff Advice No. 5/76 contained the following statement: "TARIFF ADVICE No. 5/76 (BOARD 'S LETTER F. No. 61/2/73 CX.
2 dated 12.2.76.) Sub: Paper Carbon paper and Stencil Paper Whether excisable under Item No. 17 of.
A doubt has been raised whether carbon/stencil paper, produced by conversion of duty paid base paper, should be treated as paper falling under tariff item 17(4) of Central Excise Tariff or as on item of stationery, outside the scope of item No. 17 of C.E. Tariff.
The matter was considered in the Central Excise Tariff Conference held at Cochin on the 13th to 15th November, 1975.
It was reported that carbon paper/stencil paper is sold in the market mostly cut to size by retail stationers.
The Indian Customs Tariff Guide has also treated Carbon paper as an item of stationery and not as paper.
The Conference was therefore, of the view that carbon paper/stencil paper, were commercially recognised only as articles of stationery.
The Board is accordingly advised that carbon paper and stencil paper should he treated as articles of stationery.
and therefore outside the purview of item No. 17 C.Ex .
Tariff.
4 Receipl of this letter may kindly be acknowledged.
These are relevant or proper materials to apply to construe the meaning of the Tariff Item.
Moreover.
in proper light these do not militate against the view that carbon paper in 1976, was included in the special type of paper.
as defined at that time.
In the aforesaid view of the matter, we are of the opinion that as at the relevant time the definition of paper PG NO 27 being paper board and all kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating and impregnating and in the light of the I.S. specifications as noted hereinbefore and there being no other reliable evidence as to how coated paper is understood in the market, except the opinion of the Indian Standard Institute in its specifications, in our opinion, the Tribunal was not right in the view it took .
The Tribunal in Kores (India) Ltd., Thane, vs Collector of Central Excise, thane, (supra) expressed the view that carbon would fall under item 17(2) of the Tariff Items relying on ISI specifications.
There was authority of the Indian Standards Institute 's publication "Glossary of Terms used in paper Trade and Industry" Is 4661.
In view of the facts as appeared in paragraph 14 of the Tribunal 's judgment in Kores (India) Lid.
,Thane, vs Collector of Central Excise,Thane, (supra), where the basis of the classifications of ISI in its specifications is explained, we are of the opinion that the carbon paper fell under item 17(2) as it stood at the relevant period germane for this appeal, before 1982, and not in residuary item No.68 of C.E.T. Learned Solicitor General submitted that this amendment so tar as item 17(3) was concerned was mere clarificatory and was introduced ex abundanti cautela.
Our attention was drawn to the decision of this Court in Md. Qasim Larry, Factory Manager,Sasamusa Sugar Works vs Muhammad Samsuddin and Anr., [1964] 7 S.C.R.419 where the Court was concerned with the question whether the term "wages" as defined by section 2(vi) of the including wages fixed in an industrial dispute between the employer and the employee.
The question had to be answered in the light of the definition prescribed by section 2(vi) before it was amendement in 1958.
The subsequent amendment expressly provided by section 2(vi)(a) that any remuneration payable under any award or settlement between the parties or order of a Court. would be included in the main definition under section 2(vi).
In the view we have taken on the construction of the expression as it stood in the relevant time, it is not necessary to rest our decision on the question whether the amendment was clarificatory or not.
In the light of the evidence referred to by the Tribunal in Kores (India) Ltd. Thane vs Collector of Central Excise Thane, (supra) and in the light of the definition of paper in C.E.T. Item 17( l ) as it stood at the relevant time, it is sufficient to hold that it was covered by item 17(2) of PG NO 28 C.E.T. and would not fall into the residuary entry.
In that view of the matter, the decision of the Tribunal cannot be sustained on this point and the appeal must be allowed.
However, as the point of limitation has not been decided by the Tribunal, we remand the case back to the Tribunal to decide that question having regard to the facts found in this case.
The appeal is, therefore, disposed of in the light of what is stated aforesaid.
In the facts of this case, the parties will pay and bear their own costs.
R. S .
section Appeal disposed of.

dataset_name: IN-Abs

summary/full:
The respondent company was engaged in the manufacture of Carbon Paper.
It was served with a notice demanding central excise duty on carbon papers cleared from its factory during the period 25.3.1979 to 24.9.1979 under section 11 B of the .
The respondent stated in reply that the notice was without jurisdiction because it was only after 28.2.1982 that the product was subjected to duty under sub item (3) of item 17 of the Central Excise Tariff.
The Assistant Collector of Central Excise, confirmed the demand.
The appellate Collector, however, accepted the respondent 's contention.
The Collector (Appeals) and the Appellate Tribunal dismissed the Revenue 's appeals.
The Tribunal upheld the contention of the respondent that for the period before its amendment in 1982, carbon paper fell under Tariff item 68 and not under Tariff Item 17(2), as was contended by the Revenue.
Before this Court the Revenue contends that (I) carbon paper being akin to coated paper was covered since 1976 under sub item (2) of item 17 of the Central Excise Tariff which included paper which had been subjected to coating; (2) the introduction of specific name `carbon paper ' as sub item (3) of item 17 in 1982 was with a view to subject it to a different rate of duty; and (3) the amendment so far as item 17(3) was concerned was mere clarificatory and was introduced ex abundanti cautela.
The respondent, on the other hand, contends that if carbon paper was already included then there was no purpose of introducing these subsequent amendments.
Disposing of the appeal, it was, PG NO 12 PG NO 13 HELD: (1) Where no definition is provided in the statute itself for ascertaining the correct meaning of a fiscal entry, reference to a dictionary is not always safe.
The correct guide is the context and the trade meaning, which is prevalent in that particular trade where that goods is known or traded.
[21D E] (2) If a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words "popular sense" that which people conversant with the subject matter with which the statute is dealing would attribute to it.
The ordinary words in every day use are, therefore, to be construed according to their popular sense.
[23F G] (3) Paper simpliciter cannot include ' carbon paper because that would not be in consonance with the popular understanding of the expression "paper".
[23G H; 24A] (4) Where paper of a special type defined in the particular statute as one including paper which have been subjected to various treatments such as coating, impregnating, how that paper be understood, there must be evidence of that understanding.
[24A] (5) There is authority of the Indian Standards Institute 's publication "Glossary of Terms used in Paper Trade and Industry" to the effect that carbon paper is understood as a coated paper in trade.
[23A C] (6) The trade notices and the tariff advices issued by the Board are not relevant, as such, in construing items in Tariff Schedule.
[24E F] (7) Understood in the accepted notion of construing entries of fiscal Statute not from a technical or scientific point of view but from the point of view of the people in the trade dealing with that particular type of goods and having regard to the evidence of the Indian Standards Institute and in the absence of any other evidence to the contrary, on the basis of the definition of paper or it was in the year 1976, carbon paper would come within item 17(2) of the Tariff Items, and would not fall into the residuary entry.
[23B C] Sai Giridhara Supply Co. vs Collector vs Collector of Central Excise, Bombay, Tribunal; Commissioner of Sales Tax, U.P. vs M.S.N. Brothers, Kanpur, PG NO 14 ; ; King vs Planters Nut and Chocolate Company Ltd., [1951] C.L.R. exhibit 122; Union of India and Anr.
vs Delhi Cloth and General Mills Co. Ltd., AIR 1963 S.C. 791; Grenfell vs I.R.C., ; Porritts & Spencer (Asia) Ltd. vs State of Haryana, [1979] I S.C.C. 82; Kores (India) Ltd. Thane vs Collector of Central Excise, Thane.
; State of Uttar Pradesh vs M/s. Kores (India) Ltd., ; ; Attorney General vs Winstar lay. ; ; Khoday Industries Ltd. vs Union of India, ; Orient Paper Mills Ltd. vs Union of India; , ; M/s Colgate Palmolive (India) P. Ltd., [1979] E.L.T. J. 567; Dunlop India Ltd. vs Union of India, AIR 1977 S.C. 597; Md. Qasim Larry, Factory Manager, Sasamusa Sugar Works vs Muhammad Samsuddin, ; , referred to.


judgement:
ed Case No.7 of 1987 In Transfer Petition No. 390 of 1986.
Dr. Y.S Chitale, T .U. Mehta and R.P. Kapur for the Petitioners N.N. Keshwani, R.N. Keshwani, Ms. Madhu Moolchandani and K. Rajendra Chodhary for the Respondents.
The Judgment of the Court was delivered by SEN, J.
The principal question in controversy in this petition under article 226 of the Constitution filed by the Hindustan Petroleum Corporation Ltd., a Government of India undertaking, which has been transferred from the High Court of Bombay to this Court under article 139A Of the Constitution, is whether the petitioner is entitled to the protection of PG NO 48 section 15A of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947, introduced by Maharashtra Act No. 17 of 1973 read with section 5 of the Esso (Acquisition of Undertakings in India) Act, 1974.
Put very briefly, the essential facts are these.
The Esso Eastern Inc., a company organised and existing under the laws of the State of Belaware, U.S.A., was carrying on, in India the business of distributing and marketing petroleum products manufactured by Esso Standard Refining Company of India Ltd., and Lube India Ltd. and had, for that purpose, established places of business in India.
The company had taken several fiats in the Metropolitan City of Greater Bombay and elsewhere for accommodating their employees including Flat No.35 in Block No.8 in the housing colony known as Shyam Niwas situate at Warden Road, now called Bhulabhai Desai Road, Bombay on leave and licence basis for a period of one year in terms of an agreement in writing dated 26th November, 1968 from Smt.
Nanki M. Malkani.
respondent No. 2 herein.
On 4th December.
1968 respondent No 1 Shyam Co operative Housing Society Ltd. passed a Resolution admitting petitioner No. 2 T.J. Nansukhani, and employee of the company as a nominal member of the society though he was not the licensee The company on 16th January, 1970 exercised the option of renewal of the licence for another year i.e. till 30th November 1970.
On 29th November, 1971, respondent No. 2 Smt.
Nanki M. Malkani addressed a letter to the company intimating that the agreement for leave and licence was due to expire on that date and accordingly the period of the said licence was renewed, yearly, from time to time to time years on the expiry of each term of licence i.e. on 30th November, 1972 and 30th November, 1972 and 30th November, 1973.
In the meanwhile, the State Legislature of Maharashtra enacted Act No. 17 of 1973.
The amendment Act also made consequential changes to which we shall presently refer.
Undoubtedly, the Esso Standard Inc. was in occupation of the flat in question as on 1st February, 1973 and thus acquired the status of a tenant under section 15A of the Act.
On 13th March.
the Esso (Acquisition of Undertakings in India) Act, 1974 was brought into force.
As from that date.
the Central Government by virtue of sub section
(1) of section 5 of the Act was deemed to be the tenant of the flat in question.
On 9th April.
1975, respondent No. 2 Smt.
Nanki M. Malkani sent a communication to the petitioner affirming the terms and conditions of the licence.
Again, on 24th March 1975, she addressed a letter confirming that she had given the aforesaid flat to Esso Eastern Inc. in December 1968 on leave and licence basis and the petitoner PG NO 49 being the successor in tittle of that company had been occupying the flat as licensee on the same terms and conditions.
On 11th September, 1980, the society passed a resolution calling upon the petitioner Corporation to vacate the said premises and directing that respondent No. 2 Smt.
Nanki M. Malkani should herself occupy the flat.
Upon failure of the Corporation to vacate the premises, the society on 15th September, 1980 filed an application under section 9I(I) of the Maharashtra Co operative Societies Act, 1960 before the 3rd Co operative Court, Bombay for eviction of the petitioner and its employee.
On 7th January, 1981, petitioner No. I permitted another employee to occupy the flat.
The 3rd Co operative Court, Bombay after consideration of the evidence adduced by the parties, by its well reasoned judgment dated 6th June, 1983 dismissed the claims of the society holding inter alia that Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence as on 1st February, 1973 and thus got the protection available to a licensee under section I5A of the Bombay Rent Act and the said protection could not be taken away merely by the society making a claim for eviction under section 91(I) of the Act.
Aggrieved, the society went up in appeal to the Maharashtra State Co operative Appellate Court which by its judgment dated 17th March, 19X4 allowed the appeal and decreed the claim of the society requiring petitioner No. 1 Hindustan Petroleum Corporation Ltd. to vacate Flat No. 35 in Block No. 8 of the society building with a further direction that respondent No. 2 Smt.
Nanki M. Malkani should occupy the flat in question herself.
I hereupon, the petitioner moved the High Court under article 226 of the Constitution for an appropriate writ, direction or order for quashing the impugned judgment and order passed by the Maharashtra State Co operative Appellate Court.
This petition mainly raises three questions.
They are [1] Whether the Hindustan Petroleum Corporation Limited being a successor in interest of the Esso Eastern Inc. the licensee, was entitled to the protection of section 15A of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, introduced by the Maharashtra Act No. 17 of 1973, having regard to the fact that the Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence as existing on 1st February 1973 (2) Whether the Maharashtra State operative Appellate Court was justified in holding that a licence being purely personal.
upOn acquisitiOn of the Esso Eastern Inc. by the Central Government under the Esso (Acquisition of Undertakings in India) Act, 1974, the agreement for leave and licence as existing on the appointed day i.e. 13th March, 1974 under section 2 (a) of that Act, stood extinguished and therefore the right acquired by Esso PG NO 50 Eastern Inc. under section 15A of the Bombay Rent Act of being a protected tenant in relation to the flat in question, could not stand transferred to, or be vested in, the Central Government under section 3 of the Acquisition Act.
Was it also justified in holding that although the Esso Eastern Inc. was deemed to be a tenant of the disputed flat under section 15A of the Bombay Rent Act, the Central Government could not be deemed to have become the tenant thereof under sub section
(I) of section 5 of the Acquisition Act merely because prior to the enactment of section ISA of the Bombay Rent Act the premises were held by Esso Eastern Inc. on an agreement for leave and licence? (3) Whether a claim for ejectment of an occupant of a flat in a cooperative housing society having been let into possession of the premises under an agreement for leave and licence executed between it and a member of the society, by virtue of its employee having become a nominal member thereof, is a 'dispute touching the business of the society ' within the meaning of section 9 (1) of the Act.
In the view that we take on the first two questions, there is no need to answer the third which is already covered by the decision of this Court in O N. Bhatnagar vs Smt.
Rukibai Narsindas & Ors.
[ ; The statutory provisions bearing on these questions are set out below.
The relevant provision in sub section
[I] of section 91 of the Act, prior to its amendment, provided: "91 (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the parties to the dispute . .to the Registrar if both the parties thereto are one or other of the following: (a) a society (b) a member, past member or a person claiming through a member . .
The definition of the term 'landlord ' as contained in section 5(3) of the Bombay Rent Act was amended to include in respect of a licensee deemed to be tenant by section 15A, the licenser who has given such licence '.
The expression licensee ' as defined in sub section
(4A) thereof introduced by the Amending Act, insofar as material, reads as follows: "(4A) 'licensee ', in respect of any premises or any part thereof, means the person who is in occupation of the pre PG NO 51 mises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge ' and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a cooperative housing society registered or deemed to be registered under the Maharashtra Cooperative Societies Act, 1960; but does not include a paying guest, a member of a family residing together, a person in the service or employment of the licensor etc; . and the expressions "licence", "licenser" and "premises given on licence ' shall be construed accordingly.
" Sub section
(1) of section 15A of the Bombay Rent, as introduced by the Maharashtra Act No. 17 of 1973 provides: '15A(1).
Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on February 1. 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation.
" Sec.
28(1) of the Act insofar as material reads.
"28 (1).
Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but.
for this provision be within its jurisdiction.
(a) in Greater Bombay, the Court of Small Causes Bombay, [aa] [b] shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply . .and to decide any application made under this Act and to deal with any claim PG NO 52 or question arising out of this Act or any of its provisions and . no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.
" We must then refer to the relevant provisions of the Esso Eastern Inc. The avowed object and purpose of the Esso (Acquisition of Undertakings in India) Act, 1974, as reflected in the long title is to provide for the acquisition and transfer of the right, title and interest of Esso Eastern Inc., the foreign company, in relation to its undertakings in India with a view to ensuring co ordinated distribution and utilisation of petroleum products distributed and marketed in India by Esso Eastern Inc. and for matters connected therewith or incidental thereto.
The preamble to the Act is in these terms: "Whereas Esso Eastern Inc. a foreign company, is carrying on, in India, the business of distributing and marketing petroleum products manufactured by Esso Standard Refining Company of India Limited and Lube India Limited, and has, for that purpose, established places of business at Bombay and other places in India; And whereas it is expedient in the public interest that the undertakings, in India, of Esso Eastern Inc. should he acquired in order to ensure that the ownership and control of the petroleum products distributed and marketed in India by the said company are vested in the State and thereby so distributed as best to subserve the common good;" Section 3 of the Act provides: "3. Transfer and vesting in the Central Government of the undertakings of Esso in India On the appointed day, the right, title and interest of Esso, in relation to its undertakings in India, shall stand transferred to and shall stand in, the Central Government.
The Act received the assent of the President on the 13th March, 1974 and published on that day became the appointed day, as defined in section 2(a) of the Act.
Sub section
( 1) of section 5 provides: "5.
Central Government to be lessee or tenant under certain circumstances (l) Where any property is held in India by Esso under any lease or under any right of tenancy PG NO 53 the Central Government shall on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of such property as if the lease or tenancy in relation to such property had been granted to the Central Government, and thereupon all the rights under such lease or tenancy shall be deemed to have been transferred to and vested in the Central Government." Section 7(1) provides that, notwithstanding anything contained in sections 3 4 and 6, the Central Government may, if it is satisfied that a Government company is willing to comply, or has complied, with such terms and conditions as that Government may think fit to impose direct, by notification, that the right, title and interest and the liabilities of Esso in relation to any undertaking in India shall, instead of continuing to vest in the Central Government, vest in the Government company either on the date of the notification or on such earlier or later date (not being a date earlier than the appointed day) as may be specified in the notification.
The Act makes provision that if there was any dispute with regard to what is vested in the Central Government, the proper forum was the Central Government for taking a decision.
19 of the Act reads as under: "19.
Power to remove difficulties If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, not inconsistent with the provisions of this Act.
remove the difficulty; Provided that no such order shall be made after the expiry of a period of two years from the appointed day.
" In exercise of the powers conferred by sub s.(l) of section 7 of the Act, the Central Government, in the Ministry of Petroleum & Chemicals issued a notification No. GSR 131(F.) dated 14th March 1974.
that on being satisfied that Esso Standard Refining Company of India Limited? a Government company, is willing to comply with the terms and India imposed by the Central Government, hereby directs that the right, title and interest and the liabilities of Esso Eastern Inc., in relation to its undertakings in l ndia, shall, instead of continuing to vest in the Central Government.
vest, w.e.f.
the 15th day of March, 1974, in Esso Standard Refining Company of India Limited.
Indubitably.
as on the appointed day i.e. 13th March, 1974 PG NO 54 under section 2(a) of the Acquisition Act, the Esso Eastern Inc. had acquired the status of a protected tenant under section 15A of the Bombay Rent Act and the tenancy rights so acquired in relation to the flat in question stood transferred to, and became vested in, the Central Government.
By virtue of the aforesaid notification issued under section 7(1) of the Act, the rights of tenancy in the 13 flat in question instead of continuing to vest in the Central Government became vested in Esso Standard Refining Company of India Limited, a Government of India undertaking, w.e.f.
15th March, 1974.
It is also necessary to mention that the Central Government held, in the name of the President, 74% of the equity share capital of the Esso Standard Refining Company of India Limited, which therefore became a Government company as defined by section 617 of the .
On 12th July, 1974 the Company Law Board, in exercise of the powers conferred by sub sections
(1) and (2) of section 396 of the , read with the notification of the Government of India in the Department of Company Affairs No. GSR 443(E) dated 18th October, 1972, made Lube India Limited a Esso Standard Refining company of India Limited (Amalgamation) Order, 1974.
(3) of the said Order provided that as from the appointed day, the undertaking of Lube India Limited shall stand transferred to, and vest in, Esso Standard Refining Company of India Limited.
As a result of the amalgamation of the two companies, the name of Esso Standard Refining Company of India Limited was changed to Hindustan Petroleum Corporation Limited.
It is therefore evident that petition No. 1 Hindustan Petroleum Corporation Limited, a Government of India undertaking, is a successor in interest of Esso Eastern Inc. which acquired the status of a deemed tenant under section ISA of the Bombay Rent Act, which right devolved on the Central Government under section 6(1) of the Acquisition Act.
Upon these facts and the statutory provisions, the 3rd Cooperative Court rightly concluded as under: "Thus, it is clear that there was a subsisting licence in favour of opponent No. 3 as on 1.2.73.
The definition 'Licensee ' as given in Section 5(4A) of the Rent Act includes inter alia a person in occupation of premises of a co operative housing society.
PG NO 55 My findings on this issue are that the opponent No. 3 has a right to the premises against opponent No. 1 as protected tenant under Section 15A of the Rent Act.
" In dealing with the question, it observed: "The Supreme Court has clearly observed that the protection given to a licensee under a valid licence as on 1.2.73 under Act 17 of the amended Rent Act is available to a licensee of any premises or any part thereof in a building vesting in or leased to a co operative housing society.
This protection given to a licensee in the position mentioned above cannot be taken away merely by the society filing the case against the member and occupant for reliefs to the opponent member.
The provisions of the two legislations are to be harmoniously interpreted and such harmonious interpretation is possible.
In case the occupant of a premises gets protection under section 15A of the Rent Act against the member, the society can implement the provisions of section 2( l6) of the Maharashtra Co operative Societies Act, 1960 by determining the rights of the member and admitting a new member for the premises.
Hence, my finding on the second part of the issue are that the rights of opponent No. 3 cannot be determined without determining the rights of opponent No. I i.e. Nanki M. Malkani, a co partner member in the suit premises.
" In view of these findings, the 3rd Co operative Court held in favour of the petitioner corporation and dismissed the claim for eviction filed by the society under section 9( l) of the Act.
Curiously enough, while allowing the appeal, the State Appellate Court has observed as follows: "One thing is clear that Hindustan Petroleum took over the rights and liabilities of Esso Standard Eastern Co. We would like to point out that leave and licence agreement confers only a personal right to occupy . that right cannot be transferred nor it can be inherited by Hindustan Petroleum Corporation by virtue of the merger of Esso Company with Hindustan Petroleum Corporation.
Under these circumstances it has to be noted that as soon as the Esso PG NO 56 Standard Eastern Co. was taken over by Hindustan Petroleum Corporation, the rights under the leave and license agreement came to an end . . it cannot be said that it (Hindustan Petroleum Corporation) also took over the rights of Esso Standard Eastern Co. to occupy the flat under the leave and licence agreement.
Again it observed: " At P. 299 of the record there is a letter dated 24.3.80 written by respondent No. 1 to the personal adviser of Hindustan Petroleum Corporation Ltd. In the first para of the said letter it is stated by respondent No. 1 that he has given the suit that to Esso Standard Eastern Inc. in December 1968 on leave and licence basis and that Hindustan Petroleum Corporation is the successor in title of the Esso Company and that Hindustan Petroleum Corporation is occupying the said flat: Probably in ignorance of this legal position, the respondent No. I wrote the above mentioned letter dated 24.
3.80 to Hindustan Petroleum Corporation .
Even supposing that respondent No. I intended that respondent No. 3 should continue as a licensee after Esso Standard Eastern Co. was taken over by respondent No. 3 it has to be noted that there was no separate leave and licence agreement with Hindustan Petroleum Corporation namely.
respondent No. 3.
Even assuming for the sake of argument that respondent No. I intended that the flat should be occupied on leave and licence basis by respondent No. 3 that leave and licence agreement was terminated by respondent No. I by the above mentioned letter.
" Further, it observed: "However there is absolutely no evidence to show the licence was renewed, at any time.
The evidence of the witness examined on behalf of respondent No. 2 clearly shows that there was no renewal of the leave and licence agreement respondent No. 3 the leave and licence agreement automatically came to an end . .under these circumstances we feel that the rights that were given under PG NO 57 the leave and licence agreement were not available to respondent No. 3" Dr. Y.S. Chitale, learned counsel appearing for the petitioners rightly contends that the findings reached by the Appellate Court are manifestly erroneous and have caused a grave miscarriage of justice.
The finding that there was no subsisting licence existing as on 1st February, 1973 to attract the provisions of section 15A of the Bombay Rent Act in the case of the petitioner Corporation is vitiated by its failure to give effect to the admission contained in the letter dated 24th March, 1980 written by respondent No. 2, Smt.
Nanki M. Malkani which is to the effect: "I had given the above flat to the then Esso Standard Inc. in December 1968 on leave and licence basis.
You as a successor in title of that company have been occupying the flat as licensee on the same terms and conditions.
As you and your predecessors in title are reputed organisation I had given the flat for your officers use in the expectation that you will return the flat.
when l require it for my own use.
" Besides this letter, the learned counsel for the petitioners drew our attention to a sheaf of letters exchanged between respondent No. 2 Smt.
Nanki M. Malkani and the Hindustan Petroleum Corporation Ltd. showing that she accepted that there was subsisting agreement of leave and licence as late as 24th March, 1980 which must be necessary implication, give rise to the inference as to the existence of such a licence between its predecessor Esso Eastern Inc. as on 1st February, 1973 which conferred on it the status of a protected tenant under section 15A of the Act.
Indeed, the correspondence shows that it was at the behest of respondent No. 2 that every time on the expiry of a term of licence it came to be renewed from year to year till section 15A of the Bombay Rent Act was brought into force.
Thereafter, the predecessor in interest of the petitioner, corporation was deemed to be her tenant under section I5A of the Bombay Rent Act.
For instance, by letter dated 9th April, 1975 she wrote to the Hindustan Petroleum Corporation Ltd. that the above flat had been in its possession since December 1, 1968.
Again, by letter dated 15th November, 1976, she wrote to the Corporation forwarding the original bill of the society in support of her demand for payment of enhanced taxes and PG NO 58 charges.
In view of these admissions made in these letters and more particularly in the letter dated 29th November, 1971 to Esso Eastern Inc. which reads as under: "As the present agreement of leave and licence in regard to above flat is due to expire on 30th November, 1973 that is two years from hence, you would like me to give you an undertaking of renewal of this agreement to justify the expenditure being incurred by you now," the findings of the Appellate Court are clearly erroneous.
On the other hand, it stands proved that Esso Eastern Inc. had acquired the status of deemed tenant or protected licensee under section 15A of the Bombay Rent Act as on 1st February, 1973.
The findings of the Appellate Court to the contrary are therefore clearly erroneous.
We are unable to sustain the view taken by the Appellate ' Court in not giving effect to sub section
[1] of section 5 which vested the tenancy rights in relation to the flat in question on the Central Government as from appointed day.
While it is true that a licence being personal is not capable of being transferred; there was no warrant for the assumption by the Appellate Court that the licence stood extinguished with the acquisition of the right, title and interest of Esso Eastern Inc. under section 3 of the Acquisition Act.
That Act came into force on 15th March, 1974 and in the meanwhile, the licensee Esso Eastern Inc. had already acquired the status of deemed tenant under section 15A of the Bombay Rent Act admittedly, there was a subsisting licence as on 1st February, 1973.
The Appellate Court has also failed to appreciate that the name of Esso Eastern Inc. was changed to Esso Eastern Inc. by a Certificate of Amendment dated/22nd December, 1970 vide a Resolution passed by the Board of Directors of the Corporation on 15th December, 1970.
In view of all this, the finding of the Appellate Court that the Hindustan Petroleum Corporation Ltd. was entitled to the protection of section 15A of the Bombay Rent Act clearly borders on traversity and can hardly be swtained.
The Appellate Court was clearly in error in not appreciating that section by 4. 3 of the Acquisition Act, the right, title and interest of Esso Eastern Inc. in relation to its undertakings in India, shall stand transferred to, and shall vest in, the Central Government as from the appointed day i.e. as from 13th March.
Under sub section
(I) of section 5 thereof, the Central Government became the lessee or tenant, as the case may be.
By sub section
(2) thereof, on the expiry of the term of any or tenancy refereed to in sub section
(1), such lease or tenancy shall, if PG NO 59 so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Esso immediately before the appointed day.
By a notification issued on the next date, the right, title and interest of the Central Government became vested in Esso Standard Refining Company of India Ltd., a Government company, w.e.f. 15th March, 1974.
Furthermore, by reason of Lube India and Esso Standard Refining Company of India Ltd. Amalgamation Order, 1974 made by the Company Law Board under section 396 [1] & (2) of the , the undertaking of Lube lndia Ltd. vested in Esso Standard Refining Company of India Ltd. and immediately upon such transfer, the name of Esso Standard Refining Company of lndia Ltd., stood changed to Hindustan Petroleum Corporation Ltd. In the premises, petitioner No. 1 Hindustan Petroleum Corporation Ltd. is clearly protected under section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act.
In that view of the matter, we do not think it necessary to deal with the contention as regards the applicability of section 91 of the Maharashtra Cooperative Societies Act, 1960.
All aspects arising out of the submissions as to the jurisdiction of the Registrar under section 91(1) of the Act have already been considered by this Court on O.N. Bhatnagar 's case and we reiterate the principles laid down therein.
In the result, the petition under article 226 of the Constitution succeeds and is allowed.
I he judgment and order passed by the Maharashtra State Co operative Appellate Court dated June 6, 1983 allowing the claim of respondent No. 1 Shyam Co operative Housing Society for eviction of the petitioners as also the proceedings initiated by it under section 91 of the Maharashtra Co operative Societies Act.
1960 are quashed.
Y. Lal Petition allowed.

summary/full:
The Esso Eastern Inc., a Company Organised and existing under U. section Laws was engaged in the business of distributing and marketing petroleum products manufactured by Esso Standard Refining Co. of India Ltd. and Lube India Ltd. and had established places of business in India.
In order to provide residential accommodation to its employees the Co. had taken on leave and licence basis, Flat No. 35 in Block No. X in the Housing Colony known as Shyam Niwas situate at Warden Road now called Bhulabhai Desai Road, Bombay, for a period of one year in terms of the agreement in writing dt.
28th Nov., 1968 from one Smt.
Nanki M. Malkani, a member of the Co operative Society.
On 4th Dec., 1968 Respondent No. 1 Shyam Cooperative Housing Society Ltd. passed a resolution admitting Petitioner No. 2 T.J. Mansuknani an employee of the Co. as a nominal member of the Society though he was not the licencee.
The period of lease was initially renewed at the instance of the licensor for one year.
On 29th Nov., 1971, Ms. Malkani wrote a letter to the Company saying that the agreement for lease and licence was due to expire on that date; hence the period of licence be renewed yearly, from time to time for 3 years on the expiry of each term of the licence.
On this basis the lease period stood extended till Nov. 30, 1973.
In the meanwbile the State of Maharashtra enacted Act 17 of 1973.
Since the Esso Standard Inc. was in fact in occupation of the flat in question as on 1st Feb., 1973, it acquired the status of a tenant under PG NO 44 PG NO 45 section 15A of the Act.
On 13th March, 1974, the Esso (Acquisition of Undertakings in India) Act, 1974 came into force and from that date by virtue of subsection (1) of section 5 of the Act, the Central Govt.
was deemed to be the tenant of the flat in question.
By a letter of 9th April, 1975, sent by Ms. Malkani Res. 2, to the Petr.
she affirmed the terms and conditions of the licence and by her subsequent communications she informed that the Petr.
who is successor in interest of Esso Eastern Inc. to whom she had given the flat continues in possession on the same terms and conditions of the lease.
On 11th Sept., 1980, the Society passed a resolution calling upon the Petr.
Corporation to vacate the premises and asked Ms. Malkani, Res. 2 for occupying the flat herself.
Upon the Petitioner 's failure to vacate the premises the Society on September 15, 1986 filed an application under section 91(1) of the Maharashtra Co operative Society Act 1960 before the 3rd Co operative Court Bombay, for eviction of the petitioner and its employee.
On January 1981, Petitioner No. 1 permitted its another employee to occupy the flat.
The 3rd Cooperative Court after considering evidence led by the parties, dismissed the claim of the Society holding inter alia that Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence as on Feb. 1, 1973 and thus got the protection available to a licencee under sec.
15A of the Bombay Rent Act and that the said protection could not be taken away merely by the Society making a claim for eviction u/s 91 [1] of the Act.
The Society being aggrieved appealed to the Maharashtra State Co operative Appellate Court.
The appellate Court took the view that leave and licence agreement confers only a personal right to occupy; that right cannot be transferred nor inherited by the Hindustan Petroleum Corpn., being successor in interest of Esso Eastern Inc. In that view of the matter the appellate Cooperative Court held that the Petitioner Corpn.
cannot be said to have taken over the right vt Esso Eastern Inc. to occupy the flat under the leave and licence agreement.
Accordingly it allowed the appeal filed by the Society and decreed the claim of the Society and directed the Petr.
Hindustan Petroleum Corpn.
to vacate the premises in question and further directed Res. 2, Ms. Malkani to herself occupy the flat.
The Petitioner thereupon filed a Writ Petition under Article 226 of the Constitution for quashing the judgment PG NO 46 and order passed by the Maharashtra State Co operative Appellate Court.
The said Writ Petition was withdrawn to this Court under Article 139A of the Constitution.
In the Writ Petition 3 questions have been raised viz (1) Whether the Hindustan Petroleum Corporation Ltd. being a Successor in interest of the Esso Eastern Inc. the licensee, was entitled to the protection of section 15A of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947, (Maharashtra Act 17 of 1973) having regard to the fact that Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence as existing on 1st February, 1973? (2) Whether the Maharashtra State Co operative Appellate Court was justified in holding that the licence being purely personal and upon acquisition of the Esso Eastern Inc. by the Central Government under the Esso (Acquisition of Undertakings in India) Act 1974 the agreement for leave and licence as existing on the appointed day i.e. D 13th March, 1974 under section 2(a) of that Act, stood extinguished and therefrom the right acquired by Esso Eastern Inc. under section 15A of the Bombay Rent Act of being a protected tenant in relation to the flat in question, could not be transferred to, or be vested in the Central Government under section 3 of the Acquisition Act.
Further was it also justified in holding that although the Esso Eastern Inc. was deemed to be a tenant of the disputed flat under section 15A of the Bombay Rent Act, the Central Government could not be deemed to have become the tenant thereof under Sub section
(1) of section 5 of the Acquisition Act merely because prior to the enactment of section 15A of the Bombay Rent Act the premises were held by Esso Eastern Inc. on an agreement of leave and licence? (3) Whether a claim for ejectment of an occupant of a flat in a cooperative housing society having been let into possession of the premises under an agreement for leave and licence executed between it and a member of the Society, by virtue of its employer having became a nominee member thereof is a "dispute touching the business of the Society" within the meaning of section 91(1) of the Act? Allowing the Petition (which stood transferred from the High Court to this Court) the Court, HELD: Petitioner No. I Hindustan Petroleum Corporation Ltd. is clearly protected under section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947.
[47G 1{; 48A] PG NO 47 That Act came into force on March 15, 1974 and in the meanwhile, the licencee Esso Eastern Inc. had already acquired the status of deemed tenant under section 15A of the Bombay Rent Act as admittedly, there was a subsisting licence as on 1st February, 1973.
The appellate Court has also failed to appreciate that the name of the Esso Standard Refining Co. of India Ltd. was changed to Esso Eastern Inc. by a certificate of Amendment dated December 22, 1970 vide a Resolution passed by the Board of Directors of the Corporation on 15th December, 1970.
[58D E] The appellate Court was clearly in error in not appreciating that under section 3 of the Acquisition Act, the right, title and interest of Esso Eastern Inc. in relation to its undertakings in India, shall stand transferred to, and shall vest in the Central Government as from the appointed day i. e. as from 13th March, 1974.
Under Sub section
(1) of section 5, thereof, the Central Government became the lessee or tenant, as the case may be.
By sub section
(2) thereof, on the expiry of the term of any lease or tenancy referred to in sub section
(1) lease or tenancy, shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Esso immediately before the appointed day.
[158F, 59A] O.N. Bhatnagar vs Smt.
Rukibai Narsingdas & Ors.
, ; , referred to.


judgement:
ivil Appeal No. 567 of 1987.
From the Judgment and Order dated 12.1.1987 of the Bombay High Court in W .
No. l24/ 1987.
R. Agarwala for the Appellant.
Dr. L.M. Singhvi, P.K. Banerjee, S.K. Jain, L .A. Kriplani.
Dr. A.M. Singhvi and section Bandopadhya for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
The member of society Mrs. Maya Inderson Israni who has been allotted the flat No.62 on 6th floor of Nibhana Building by the disputant No.2, the Nibhana Co operative Housing Society.
Ltd. and the society filed a dispute before the Judge Fifth Cooperative Court at Bombay for recovery of possession of the said flat from the opponents who are the appellants in this appeal and for mesne profits in respect of the flat alleging inter alia that the appellants were inducted in th flat without the written consent of the Society as a licencee on the basis of a leave and licence agreement which was a renewed from time to time till some time in 1972 and on Ist October 1972, the member, that is, the respondent No.2 terminated the licence and called upon the appellant to remove itself from the said flat.
Thereafter an advocate s Letter dated 1st October 1972 was sent by the respondent No. 2 to the appellant for vacating the flat.
The appellant having failed to comply with the request a dispute was filed by the H.T ASSOCIATES vs MRS.
MAYA [RAY.
J.] member as well as the Co operative Society for eviction of the appellants from the flat, as well as for mesne profits.
The plea of the appellants was that they were continuing in possession of the flat on the basis of a leave and licence agreement by payment of licence fee uptill now and as such the dispute does not come within section 91 of the Co operative Societies Act as they have become tenants under section 15 of Bombay Rent Act.
The Co operative Court after hearing the parties made an award holding that the dispute fell within the jurisdicton of the Co operative Court as the appellant claimed to be h possession of the flat as a licencee through the member of the society which is a Co partnership Housing Society under the Maharashtra Co operative Societies Act.
It was also held that the appellant was occupying the flats in question as a trespasser after the licence in favour of appellant was terminated.
There was no subsisting licence to occupy the flat by the appellants on 1st February.
1973 and so Section 15 of the Bombay Rent Act was not applicable to it.
An appeal was filed by the appellant before the appellate authority.
The said appeal was dismissed and the order of the Co operative Court was upheld.
The appellants filed a writ petition No. 1 '4 of 1987 before the High Court of Bombay under Article 227 of the Constitution.
The said Writ Petition was dismissed by the High Court.
Hence this appeal by Special Leave has been filed by the appellant.
In view of our judgment in C.A. No. 472 of 1985, this appeal is dismissed without any order as to costs.
The decree will not be executed for a period of four months from the date of this order subject to the appellant s filling an usual undertaking within a period of two weeks from today to the effect that the appellant will not transfer.
assign or encumber the flat in question in any manner whatsoever and on undertaking that he will hand over peaceful possession of the flat in question to the respondent on or before the expiry of the aforesaid period and he will go on paying the occupation charges equivalent to the amount he had been paying for each month by the 7th of succeeding month.
In default of compliance of any of these terms, the decree shall become executable forthwith.
N .V.K.
Appeal dismissed.

summary/full:
Respondent No. 2, a Co operative Society allotted a flat to respondent No. l. Respondent No. 2 sought recovery of possession of the flat on the ground that the appellant was inducted into the flat without the written consent of the Society.
The appellant pleaded that it was continuing in possession of the flat on the basis of the lease and licence agreement by payment of licence fee, and as such the dispute did not come within Section 91 of the Co operative Societies Act as it had become as tenant under Section 15A of the Bombay Rent Act.
The Cooperative Court after hearing all the parties made an award holding that the dispute fell within the jurisdiction of the Cooperative Court and that the appellant was occupying the flat in question as a trespasser after the licence in its favour was terminated and that there was no subsisting licence to occupy the flat by the appellant on Ist February, 1973 and so Section 15A of the Bombay Rent Act was not applicable.
The appellant 's appeal to the Appellate Authority and writ petition to the High Court having been dismissed, the appellant appealed by special leave to this Court.
Dismissing the Appeal, HELD: 1.
The appellant is an outsider who has been permitted to possess the suit premises as licencee of respondent No. 2 in contravention of the Rules, bye laws and regulations of the society.
The dispute falls squarely within the provision of section 91 of the Maharashtra PG NO 29 PG NO 30 Cooperative Societies Act 1960 and the Cooperative Court has exclusive jurisdiction to entertain and decide the dispute and not the Court under the Bombay Rent Act, 1947.
M/s. A.V.R. & Co. & Ors.
vs Fairfield Cooperative Housing Society Ltd., [1988] Supp.
3 S.C.R.48.
The decree will not be executed for a period of four months.
The appellant will not transfer, assign or encumber the flat in any manner whatsoever, and hand over peaceful possession of the flat on or before the expiry of the aforesaid period.
He will go on paving the occupation charges equivalent to the amount he had been paying for each month 7th of succeeding month.
In default of compliance the decree shall become executable forthwith.
[31E F]


judgement:
vil Appeal No. 1 of 1986 From the Judgment and Order dated 7.2.1986 of the Bombay High Court in W. P. No. 4802 of 1984 D.R. Thadani and Shri Narain for the Appellants.
N.N. Keshwani, R.N. Keshwani and Girish Chandra for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
The Maitrai Park Co operative Housing Society Ltd. has filed a dispute before the first Co operative Court, Bombay stating inter alia that the opposite party No. I Smt.
Mohini R. Adwani PG NO 34 who is a member of the society and was allotted flat No. 15 in Societies 'F ' building in scheme No. 1 at Chambur Bombay 71 inducted the appellant opposite party No. 2 without obtaining the prior written consent of the society in May 1969, on the basis of a leave and licence agreement for a period of 11 months.
The said society Maitrai Cooperative Housing Society Ltd. was divided into two units that is Maitrai Park Co op.
Housing Society Ltd., Chambur which is the owner of the building in Scheme No. I including Building No. F and the Maitrai Bijoy Co op.
Housing Society Ltd. Chembur 74 Scheme No. 2, by order of the Assistant Registrar Co operative Housing Society Ltd. Bombay.
By virtue of the division of the society the assets and liabilities so far as scheme No. 1 were taken over by the present disputant society, that is Maitrai Park Co operative Housing Society Ltd. and the members in respect of the said building in scheme No. I automatically became members of the society by the Order No. BCM/ HSG/4633 of 1970 from 6.8.1971.
The respondent opponent No. 2 automatically became a member of the disputed society in respect of the said flat No. 15 in 'F ' building.
The opposite party appellant who was occupying the premises unauthorisedly after the expiry of the period of the licence was asked to vacate the flat by the member of the society that is the respondent No. 2.
As he did not accede to the request the respondent No. 1 society had to take steps for evicting the appellant from the said flat so that the respondent No. 2 can occupy the same for her residence.
The society served a notice on the appellant for vacating the flat.
But the appellant did not vacate the flat.
Therespondent No. l, the housing society, filed a dispute before the Cooperative Court for eviction of the appellant who was in unauthorised occupation of the flat and who had been using the said residential flat by opening a canteen therein in violation of the bye laws framed by the society.
The appellant questioned jurisdiction of the Co operative Court to entertain the dispute on the ground that the dispute does not come within purview of Section 9 l of the Co operative Societies Act as he has been continuing in possession as licencee till the date of filing of the dispute and the respondent No. 1, the member of the society, has been receiving licence fees from him.
It has also been stated that in one of the receipts issued by the member.
The word rent ' has been used.
The appellant also pleaded that continuing as a licencee he has become a tenant under section l5A of the amended Bombay Rent Act on and from Ist of February, 1973.
The dispute is as such beyond the jurisdiction of the Co operative Court.
The Co operative Court after hearing the parties made an award holding that the dispute fell within the purview of section 9 l of the Maharashtra Co operative Societies Act, 1960 as the appellant is claiming to be in possession of the flat as licencee through a member of the PG NO 35 society.
It also held that there was no subsisting agreement of licence in favour of the appellant on the d ate of the enforcement of section 15A of the Bombay Rent Act and so the appellant had not become a deemed tenant.
Against this award an appeal was filed before the Maharashtra State Co op.
Appellate Court.
The appeal was dismissed and the award of the Co operative Court directing eviction of the petitioner from the Flat No. 15 was affirmed.
The appellant thereafter moved the High Court of Bombay in Writ Petition No. 4802 of 1984.
The said writ petition was dismissed with costs.
The appellant thereafter filed the instant special leave petition.
The facts of the case are more or less similar to the facts of C.A. No. 472 of 1985.
We have already held that the dispute in question comes within purview of Section 91 of the Cc operative Act as the appellants claim to be in possession of the flat through a member of the society which is a Co partnership Housing Society and Section 15A of the Bombay Rent Act does not apply as there was no subsisting agreement of licence on 1.2.1973.
Therefore, the judgment rendered by us in C.A. No. 472 of 1975 will also govern this case.
The appeal is, therefore.
dismissed without any order as to costs.
The decree will not be executed for a period of four months from the date of this order subject to the appellant 's filing an usual undertaking within a period of two weeks from today to the effect that the appellant will not transfer, assign or encumber the flat in question in any manner whatsoever and on undertaking that he will hand over peaceful possession of the flat question to the respondent on or before the expiry of the aforesaid period and he will go on paying the occupation charges equivalent to the amount he had been paying for each month by the 7th of succeeding month.
In default of compliance of any these terms,the decree shall become executable forthwith.

summary/full:
Mohini R. Adwani, a member of the Maitrai Co operative Housing Society Ltd., was allotted flat No.15 in Societies 'F ' building in Scheme No. I at Chambur Bombay 71.
She inducted the appellant in the premises aforesaid without obtaining the prior written consent of the society, on the basis of a leave & licence agreement for a period of 11 months.
The said society was divided by order of the Assistant Registrar Co operative Housing Society Ltd. Bombay into two units i.e Maitra Park Co operative Housing Society Ltd., Chambur (and the Maitra BUoy Co operative Housing Society Ltd., Chambur 74 Scheme No. 2) the former being the owner of the building in Scheme No. i including building No. F '.
Thus on division Smt.
Mohini R. Adwani automatically became a member of the disputed society in respect of the said flat No. 15 in `F ' building.
The appellant after the expiry of the period of the licence was occupying the premises unauthorisedly & was asked to vacate the flat by the member of the society.
As he did not accede to her request.
the society had to take steps for evicting the appellant from the said flat so that Respondent 2 could occupy the same for her residence.
The society accordingly served a notice on the appellant asking him to vacate the flat.
On his failure to vacate, the society filed a dispute before the Co operative Court for eviction of the appellant who was in unauthorised occupation of the premises and was using the residential flat for canteen purposes in violation of the bye laws framed by the Society.
The appellant questioned the jurisdiction of the Co operative Court to entertain the matter on the ground that the dispute in question does not come within the purview of section 91 of the Co operative Societies Act as he was continuing in possessing as licencee and the member of the Society was receiving licence fee from him till the date of filing the dispute.
He also asserted that in one of the receipts issued to him the word "rent" has been used.
He also pleaded that as a licencee he has became a tenant u/s 15A of the amended PG NO 33 Bombay Rent Act on and from 1st February, 1973.
The Co operative Court found against the appellant and made an award holding that the dispute is covered u/s 91 of the Maharashtra Co operative Societies Act, 1960 as the appellant is claiming to be in possession of the flat as licencee through a member of the Society.
It also held that there was no subsisting agreement of licence in favour of the appellant on the date of the coming into force of section 15A of the Bombay Rent Act and as such the appellant could not become deemed tenant.
Appellant 's appeal before the Maharashtra State Co operative Appellate Court having failed he moved the High Court by means of Writ Petition.
On dismissing the Writ Petition by the Bombay High Court, the appellant filed this appeal by special leave.
Following the Court 's Judgment in CA.
No. 472 of 1985, M section A. V.R. & Co. & Ors.
vs Fairfield Co operative Housing Society Ltd., [1988] Supp.
3 S.C.R. 84 Court dismissed the appeal, but directed that the decree should not be executed for a period of 4 months subject to the appellants filing usual undertaking.
The Court, HELD: That the dispute in question comes within the purview of section 91 of the Maharashtra Co operative Societies Act, 1960 as the appellant claims to be in possession of the flat through a member of the Society which is a Co partnership Housing Society and Sec.
15A of the Bombay Rent Act does not apply as there was no subsisting agreement of licence on 1.2.1973.
[34G H;35A]