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Smart Summary

Factual and Procedural Background

This is an oral order dated 03/08/2022 in R/Special Civil Application No. 9671 of 2002 before the High Court of Gujarat (Coram: A.S. Supehia, J.). The petitioner is Himgiri Flat Owners Association and the respondents include the State of Gujarat and others. The petition seeks directions to the Registrar, Non-Trading Corporation (NTC) to take action against the Board of Directors and office-bearers of Himavan Association for alleged breaches of the Bombay Non-Trading Corporation Act, and to direct issuance of a certificate for registration of the Himgiri Flat Owners Association with permissions to re-construct the building, open books of account and a bank account, and related reliefs. The record notes an earlier order of this Court dated 23.12.2002 and a meeting convened on 30.12.2002. The matter involves a disputed factual question whether respondent No.3 supplied certain documents (including share certificates and members' register) to the petitioner; there is an assertion that over the past 20 years the petitioner-Association has been managing the affairs of the flats.

Legal Issues Presented

  1. Whether the Registrar, NTC should be directed to take action against the Board of Directors and office-bearers of Himavan Association and to issue the certificate for registration of the Himgiri Flat Owners Association together with permissions to reconstruct the building and to open books of account and a bank account.
  2. Whether this Court, exercising jurisdiction under Article 226 of the Constitution, can adjudicate disputed factual questions (specifically, whether respondent No.3 supplied the necessary documents and share certificates to the petitioner).

Arguments of the Parties

Petitioner’s Arguments

  • Respondent No.3 has not supplied necessary documents to the petitioner, preventing the petitioner from registering itself.
  • Because of non-registration the petitioner cannot undertake sale of flats, cannot open a bank account, and the title of the land remains in flux.
  • The share certificate and Members' Register are allegedly lying with respondent No.3.
  • The petitioner sought directions to the Registrar, NTC to take action against respondent No.3 and to issue the registration certificate and related permissions.

Respondent’s Arguments

  • After the Court's order of 23.12.2002, respondent No.3 convened a meeting on 30.12.2002 in which the Registrar, NTC (respondent No.2) was represented.
  • Over the past 20 years members of Himgiri Association have been managing the affairs of the flats and all affairs, including selling, are managed by the petitioner-Association.
  • It was later submitted (on instructions of Mr. C.C. Modi) that all the documents, including the share certificate, were supplied to the petitioner-Association.
  • Respondent No.3 asserted that it is defunct and not participating in administration, and that the petitioner-Association undertakes the administration and possesses the documents.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court noted the factual dispute over whether respondent No.3 supplied the necessary documents (including share certificates and members' register) to the petitioner. The Court observed assertions on both sides: that the petitioner lacked documents and could not register, and conversely that the petitioner-Association has been managing the flats and that documents were supplied. The Court held that while exercising power under Article 226 the Court cannot probe disputed questions of fact about supply of documents. Given the existence of factual disputes and competing assertions, the Court declined to adjudicate those factual issues in the writ petition and instead directed the petitioner to pursue appropriate proceedings before the proper forum, leading appropriate evidence to claim the documents if they remain unsupplied.

Holding and Implications

Writ petition dismissed. The Rule is discharged.

Direct consequences: the petitioner's writ seeking directions to the Registrar, NTC and related reliefs is dismissed; the petitioner is left free to file appropriate proceedings before the appropriate forum to claim the documents from respondent No.3 and to lead evidence on that issue. The opinion does not establish any new legal precedent beyond the disposition of this petition.

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    HIMGIRI FLAT OWNERS ASSOCIATION v. STATE OF GUJARAT

    C/SCA/9671/2002 ORDER DATED: 03/08/2022

    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CIVIL APPLICATION NO. 9671 of 2002

    ==========================================================

    HIMGIRI FLAT OWNERS ASSOCIATION

    Versus

    STATE OF GUJARAT & 12 other(s) ========================================================== Appearance:

    MR KK SHAH(767) for the Petitioner(s) No. 1 MR HARDIK D MEHTA, AGP for the Respondent(s) No. 1,2 MR TUSHAR MEHTA(472) for the Respondent(s) No. 10,11,5,6,7,8,9 MR VISHAL B MEHTA(5319) for the Respondent(s) No. 3,4 RULE SERVED for the Respondent(s) No. 12,13 ==========================================================

    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

    Date : 03/08/2022

    ORAL ORDER

    1. When the matter is taken up for hearing today, Mr.C.C.Modi, Secretary of Himavan Association is present.

    2. Learned advocate Mr.Vishal Mehta appearing for the respondent Nos.3 and 4 has submitted that after the order, which was passed by this Court on 23.12.2002, a meeting was convened by the respondent No.3 on 30.12.2002. He has submitted that in that meeting, respondent No.2-Registrar, Non-trading Corporation (NTC) was also represented. He has submitted that during the passage of 20 years, the members of Himgiri Association, who were also present in that meeting, are managing the affairs of the flats. It is submitted that all the affairs of the flats including selling, are also managed by the petitioner-Association.

    Page 1 of 4

    3. Learned advocate Mr.Shah appearing for the petitioner-Association has asserted that the respondent No.3 has not supplied any documents to the them and hence, in want of necessary documents, they are unable to register themselves. It is submitted that the respondent No.2-Registrar NTC may accordingly be directed to take action against the respondent No.3 so that the petitioner-Association can get themselves registered. It is submitted that because of non- registration of the Association, they are unable to undertake necessary exercise for selling the flats and they cannot open bank account and title of the land is also influx. It is submitted that the share certificate and Members' Register is also lying with the respondent No.3.

    4. Learned advocate Mr.Mehta, upon instructions of Mr.C.C.Modi, has submitted that subsequently all the documents including the said certificate are also supplied to the petitioner-Association.

    5. In the present writ petition, the petitioner has prayed for the following relief:

    "25(A) This Hon'ble Court may be pleased to issue appropriate writ, order or direction to the respondents by directing the Registrar, NTC to take action against the Board of Directors and office bearers of Himavan Association for breaching and violating the statutory provisions of the Bombay Non- Trading Corporation Act and also directing them to give to the petitioner the certificate for registration of the Himgiri Flat Owners Association with a permission to re-construct the building namely Himgiri Apartment and permit the petitioner to open

    Page 2 of 4

    the Books of Accounts, etc. including the Bank Account in the name with clear condition and against the same, no right of ex-office bearers and Board of Directors of Himavan Association or Krupa Construction will be there and they are also to be directed not to sell, lease, mortgage, transfer any portion with regard to the Title of the land- FP/202, Nehru Park, Vastrapur, Ahmedabad to any other authorities without the permission of the Himgiri Flat Owners Association and without permission of this Hon'ble Court."

    6. Thus, the petitioners are seeking direction to the Registrar, NTC to take against against the Board of Directors and office bearers of Himavan Association for breaching and violating the statutory provisions of the Bombay Non-Trading Corporation Act and also directing them to give to the petitioner the certificate for registration of the Himgiri Flat Owners Association with a permission to re-construct the building namely Himgiri Apartment and permit the petitioner to open the Books of Accounts, etc. including the Bank Account.

    7. After a passage of 20 years. It is admitted that the concerned apartments are already constructed. It appears to be disputed question of facts amongst the parties with regard to supply of the documents and share certificate etc.

    8. This Court, while exercising its power under Article 226 of the Constitution of India cannot delve into the disputed question of fact whether the respondent No.3 has supplied the necessary

    Page 3 of 4

    documents including share certificate etc. to the petitioner-Association or not since it is specifically asserted by the respondent No.3- Mr.C.C.Modi that all the documents and entire administration of the flats are undertaken by the petitioner-Association and as such the respondent No.3 is defunct and not participating in any manner with the administrating the flats and it is the petitioner-Association, who is undertaking the necessary exercise.

    9. Under the circumstances, and in light of the aforesaid fact, the writ petition is dismissed. Rule is discharged. However, it will be open for the petitioner-Association to file appropriate proceedings before the appropriate forum for claiming the aforesaid documents from the respondent No.3 leading appropriate evidence before such forum, if the same are not supplied. Sd/-

    (A. S. SUPEHIA, J)

    NVMEWADA

    Page 4 of 4

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    HIMGIRI FLAT OWNERS ASSOCIATION v. STATE OF GUJARAT
    (Aug 3, 2022)