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.
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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
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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
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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
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