ON Civil Appeal No 1945 of 1984
From the Judgment and Order dated 16121983 of the Bombay High Court in WP No 4356 of 1983
R Karanjawala
Mrs Manik Karanjawala and Ejaz Maqbool for the Appellants
PG NO 62 TS Krishnamurthy RN Keshwani Dilip Jhangiani VK Punwani and MKD 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  Rs450 per month and a further amount of Rs4250 towards maintenance car parking and water charges wef
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 10a pro tanto stood amended
Due to sheer inadvertence however byelaw 10a 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 10a 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 10a 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 23678 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 ON Bhatnagar vs Smt
Rukibai Naraindas Bhavnani  Anr in Miscellaneous Petition No 27179 decided on 21st April 1981 and later by this Court in ON 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 ON 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 ie in the year i976 though the resolution proposing the amendment was passed in the meeting held on 25121974
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 RN 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 RF 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 ON 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 ON 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 911 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 911 of the Act
 In dealing with the inter relation between the non obstante clause in section 911 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 911 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 911 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 10a 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 10a 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 10a 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 10a
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 292 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 473
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 VM 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 The 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 IR 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 dismissedl 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
SL Appeal 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 Rs300 and Rs400 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 35Lb 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 12 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
658H661D 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