is allowed. The order dated 13.08.2024 of dismissal of the Letters Patent Appeal for non-prosecution is hereby recalled. The appeal is restored to its original number.

3. After restoration of the appeal, we have proceeded for hearing on merits.

4. The original petitioner, namely the appellant herein is an association named as 'Nilamber Members Association', stated to be registered under the provisions of the Bombay Non-Trading Corporation Act, 1959 and claims to have right in the property in question on the basis of a registration certificate which is dated 12.06.2001. A perusal of the 'Certificate of Incorporation' of the association named as 'Nilamber Member Association' indicates that same was incorporated under the Bombay Non-Trading Corporation Act, 1959 and is stated to be Corporation limited by shares.

5. The assertion in paragraph '2.2' of the writ petition based on the Memorandum of Association of the corporation appended at page '129' of the paper book indicates that the petitioner association claims to have right wherein one of the object of the association status stated is to manage, administer, operate and generally to supervise common amenities and facilities of the members in the said

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association and to provide such portion of the said association as are means for the joint use of all the members and to utilize the same to the best advantage of the members. Based on these two clauses '(d)' and '(e)' of the Memorandum of Association forming part of the object of the establishment of the Association, it is sought to be submitted by the learned advocate appearing for the appellant that the petitioner association has been formed with the purpose to protect the interest of its members and the main object of the association is to protect the conjoint rights of the members of the association concerning the scheme known as 'Nilamber Bungalows No. 1' which included all the bungalows forming part of the said project. The statement made in paragraph '2.2' of the writ petition is that there are 33 bungalows being constructed/developed in the project referred to as 'Nilamber Bungalow No. 1'. It is further submitted that the aforesaid project was developed on the land forming part of Survey Nos. 6/1, 6/2, 11/1 and 11/2 admeasuring about 15,885 sq.mtrs., of Village Vasna, Taluka and District - Vadodara. The main grievance raised in the writ petition is about the N.A. permission (Non-Agricultural use permission) granted to private respondent no. 4, who happens to be member of the association.

6. A further perusal of the Article of Association of 'Nilamber

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Members Association', namely the petitioner herein further indicates that the association was stated to be established solely for the purpose stated in the Memorandum of Association and to provide, manage, supervise and administer the common amenities necessary to its members. We may note that there is no reference of the scheme known as 'Nilamber Bungalow No.1' in the Memorandum of Association or Article of Association appended at page '129' and '135' of the paper book. The only statement in Memorandum of Association of the association is to the effect that the registered office of the association will be situated at club house, Nilamber Bungalows, near Vasna Jakatnaka, Vasna Road, Vadodara in the State of Gujarat.

6.1. Be that as it may, it is brought before us that the Bombay Non- Trading Corporation Act, 1959 has been repealed by Gujarat Act No. 6 of 2005, which clearly states that the Bombay Non-Trading Corporation Act, 1959 in its application to the State of Gujarat is hereby repealed. Section 2 of the repealed Act, however, saves the enactment, namely the Bombay Non-Trading Corporation Act, 1959 as per the provisions of Section 7 of the Bombay General Clauses Act, 1904. Section 7 of the Bombay General Clauses Act, 1904 further states that the repeal shall not revive anything not in force or

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existing at the time at which repeal takes effect and further it shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.

6.2. Having noted the above, we may further record that from a perusal of the Bombay Non-Trading Corporation Act, 1959, (repealed in the year 2005 ) it may be noted that the said Act has been enacted to provide for the incorporation, regulation and winding up of non- trading corporations whose objects are confined to the State of Bombay. Section 5 contained in Chapter II pertaining to incorporation of corporations and matters incidental thereto, would align the mode of forming corporation and the purposes which are for promoting or encouraging commerce, industry, literature, art, science, diffusion of useful knowledge, foundation and maintenance of libraries, museum or such other purposes may, by subscribing their names to the memorandum or otherwise complying with the requirement of the Act. Section 4 contained in sub-section (a) and (b) would further provide that the Act would override Memorandum or Article of Association and further states that the provisions of Act shall have effect notwithstanding anything contrary contained in the Memorandum or Article or any agreement executed by the corporation or in any resolution passed by it in the general meeting

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or by its Board of Directors and any such provision contained in any such documents, to the extent to which it is repugnant to the provisions of the Act, becomes void.

7. Taking note of the above provisions, and the Memorandum of and Scheme of association of the petitioner corporation, we have serious doubt about the locus of the petitioner to maintain the writ petition, to raise any objection pertaining to N.A. permission granted to respondent no. 4, which was subject matter of challenge before the writ Court. We may note that both the orders challenged before the writ Court were the orders passed by the Collector and Special Secretary, Revenue Department (Appeals) (SSRD) in the years 2019 and 2020, much after the repeal of the Bombay Non-Trading Corporation Act, 1959, under which the petitioner is claiming to be a legal entity. Moreover, N.A. permission has been granted pertaining to the plot owned by respondent no. 4, which is plot no. B-1, Nilamber Bungalow, Vasna Road, Vadodara.

8. We may further note the arguments made by the learned counsel for the petitioner to substantiate the claim of the petitioner association. It is submitted by the learned advocate based on the layout plan appended at page '152' of the paper book that area of each plot has been prescribed/laid down in the layout plan and the

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plot no. B-1 was comprised of area of 455.71 sq.mtrs., and is mentioned to be a residential plot. The respondent no. 4 is a purchaser from the original owner and has applied for N.A. permission for an area of 603 sq.mtrs., much more than the area of the plot, namely B-1, 'Nilamber Bungalow. It is stated that during the pendency of the application, measurement was got conducted from the DILR and in the measurement sheet, the area of plot B-1, 'Nilamber Bungalow' has been shown as 555.50 sq.mtr., instead of

455.71 sq.mtrs. The Collector has also granted N.A. permission for the area which is 555.50 sq.mtr. It is further contended that in the original layout plan of the year 1992, though the area of plot no. B-1 has been shown as 455.71 sq.mtrs., but the respondent no. 4 has got permission on a larger area by way of sale deed from the original owner by including a portion of 30 meter road lying in front side of the said plot, which has been shown in the layout plan of 1992. The submission thus, is, that the association having interest of its members has agitated the issue pertaining to grant of N.A. permission. The order passed by the Collector in the year 2019 was challenged before the SSRD, which has rejected the revision filed by the petitioner, illegally.

9. Having noted the above, we may record that the learned Single

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Judge has noted that the order passed by the SSRD is subject to the final outcome of the Civil Suit No. 136 of 2020, which has admittedly been filed by the original petitioner/appellant herein, and is pending before the competent Court. Once the order of grant of N.A. permission has been made subject to the final outcome of the civil suit filed by the petitioner, we do not find any good ground to interfere in the order passed by the learned Single Judge. It may not be out of place to mention that the interim injunction application filed by the petitioner in Civil Suit has already been rejected and an Appeal from Order challenging the said order is pending consideration before this Court. Even otherwise, the issues raised and argued before us would require factual inquiry which would require leading of evidence, fresh measurement of the land in question etc., and is not possible to adjudicate within the scope of Article 226 of the Constitution of India.

10. With the above, we do not find any good ground to entertain the appeal. The appeal is dismissed being devoid of merits. It is further clarified that the observations made by us in this order or the learned Single Judge in the dismissal of the writ petition will not come in the way of the petitioner in the pending civil suit. The Civil Court is required to decide each and every aspect of the matter

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independently without being influenced by any of the observations made by us herein-above.

(SUNITA AGARWAL, CJ )

(PRANAV TRIVEDI,J)

phalguni

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