SCA/12610/1994 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12610 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JUGALKISHORE RAMNARESH - Petitioner(s) Versus CHANDICHARAN MAHANTI & 6 - Respondent(s) ========================================================= Appearance : MR SURESH M SHAH for Petitioner(s) : 1, NOTICE SERVED for Respondent(s) : 1, 3, NOTICE UNSERVED for Respondent(s) : 2, 4, SERVED BY AFFIX.(N) for Respondent(s) : 5, DS AFF.NOT FILED (R) for Respondent(s) : 5 - 7. RULE UNSERVED for Respondent(s) : 6, RULE SERVED for Respondent(s) : 7, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 13/03/2008 ORAL JUDGMENT 1. The short facts of the case appear to be that SCA/12610/1994 2/10 JUDGMENT the petitioner, Jugalkishore Ramnaresh Ray, claiming himself to be the President of Murli (Satellite) Owners' Association (hereinafter referred to as “the Association” for the sake of convenience), which, as per him, is a registered non-trading Association, has preferred the present petition for challenging the order passed by the Tribunal dated 27.7.1994 in below Application for leave to prefer appeal being Misc. Application No.4/1994. 2. It appears that five members of Rushvina Park Cooperative Housing Society Limited filed a Lavad Suit No.544 of 1992 under Section 96 of the Gujarat Cooperative Societies Act (hereinafter referred to as “the Act”) for the declaration and the perpetual injunction to the effect that the transaction of the society, if any, be declared as illegal and void and the Society and one Nathabhai Patel be restrained from making any construction over the land of common plot of the Society and it was also prayed in the said suit that the Society be restrained from admitting any person as member SCA/12610/1994 3/10 JUDGMENT other than the original 404 members of the Society and the Society be further restrained from creating in interest of any third party over the land. In the said suit, it appears that as neither Society, nor Defendant No.2 therein, namely Nathabhai Patel had filed any reply, the matter proceeded ex parte and the learned Nominee, based on the evidence available on behalf of the plaintiff, passed the judgement and award dated 18.8.1992, whereby the suit was decreed. The petitioner, claiming in capacity as the President of the Morbi (Eralite) Owners' Association (which is, as stated by Mr.Shah, learned Counsel for the petitioner, a typing mistake and it should be treated as 'Murli (Satellite) Owners' Association), preferred Appeal No.40 of 1994 against the judgement and award of the learned Nominee dated 18.8.1992. However, as the appellant therein was not party in the suit proceedings before the learned Nominee, Misc. Application No.4 of 1994 was also preferred for leave to prefer appeal on the ground that the petitioner was aggrieved by the SCA/12610/1994 4/10 JUDGMENT aforesaid decision of the learned Nominee. The Tribunal, after hearing both the sides, passed the order dated 27.7.1994, whereby on merits, the Tribunal found that there was no interest of the appellant – applicant and, therefore, leave could not be granted and, therefore, the applicant has been dismissed. It is under these circumstances, the petitioner has approached this Court by preferring the present petition. 3. The learned Counsel for the petitioner mainly contended that as the petitioner was admitted as a nominal member vide Resolution of the Society dated 29.11.1991 and the contribution was also accepted by the Society vide Receipt dated 28.1.1992, copy whereof is produced at Annexure A and B respectively, the Tribunal ought to have granted leave to prefer appeal to the petitioner, since the petitioner could be said as aggrieved by the judgement and award of the Nominee, which as per the petitioner was collusive or ex parte. He submitted, that the Tribunal has committed error in not granting leave to prefer appeal and, therefore, this SCA/12610/1994 5/10 JUDGMENT Court may quash the order of the Tribunal and may direct the appeal to be heard on merits. 4. If the records, as produced by the petitioner, are considered on its face value, then also it appears that as per the petitioner, the Society had resolved to admit Association as a nominal member vide Resolution dated 29.10.1991 and the receipt has been issued by the Society to the said Association dated 28.1.1992 for the payment of Rs.5,000/-. Share certificate issued in favour of the Association is not produced on record by the petitioner to show that after the receipt of the contribution, the nominal membership was duly conferred by issuance of share certificate as nominal member. Further, the so-called nominal membership is of the Association and not to the petitioner namely; Jugalkishore Ramnaresh Ray, who had preferred the appeal and who had preferred the application for leave to prefer appeal before the Tribunal. 5. The learned Counsel for the petitioner attempted to contend that the petitioner, in capacity as the President, had preferred the appeal and SCA/12610/1994 6/10 JUDGMENT since the description was there in the memo of the appeal and the application for leave to prefer appeal and in the present petition, this Court may treat the main appeal before the Tribunal as well as the application for leave to prefer the appeal before the Tribunal and the present petition as having been filed by the Association itself. I am afraid, such contention can be accepted on the face of Section 16(2) of the Non-Trading Corporation Act, 1959. Section 16(2) of the Non-Trading Corporation Act, 1959 (hereinafter referred to as “NTC Act” for short) reads as under:- “16(2) From the date of incorporation mentioned in the certificate of incorporation, such of the subscribers of the memorandum and other persons, as may from time to time be members of the corporation, shall be a body corporate by the name contained in the memorandum capable forth with of exercising all the functions of an incorporated, and having perpetual succession and a common seal, but with such SCA/12610/1994 7/10 JUDGMENT liability on the part of its members to contribute to the assets of the corporation in the event of its being wound up as is mentioned in this Act.” 6. It is undisputed position that the Association has been granted registration and the petitioner has also made statement in the petition at paragraph 1 that it has been granted registration under NTC Act vide order No.G.4291 dated 25.9.1991. Therefore, once the Association is registered, as per the language used by the Legislature, it is a body Corporate by the name contained and capable of exercising all the functions of a Corporate Body and having perpetual succession and a common seal. Therefore, once Non-Trading Corporation is registered under NTC Act by virtue of Section 16(2) of the Act, it becomes a legal entity and consequently, can sue and can be sued on its own name. The legal entity of the President of the Association is different than that of the Association itself. Therefore, if the Association is aggrieved by any decision of the SCA/12610/1994 8/10 JUDGMENT Board of Nominee, the petitioner, in individual capacity or even describing himself as the President cannot prefer appeal on his own name, but such appeal even if was to be preferred, could be preferred by the Association. It is an admitted position that no right even on the basis of the documents produced, if any, of the so-called Resolution and of the payment of contribution are created in favour of the petitioner, who has preferred the petition. Therefore, the petitioner can be said as a person having no interest whatsoever in the so- called membership, nor can he be said as allegedly aggrieved by the decision of the Nominee. It is true that the Tribunal has not examined the matter on the aforesaid aspects, however, such being the question of law as provided by NTC Act itself, the same can be considered while exercising the power under Article 227 of the Constitution of India. 7. Even for asserting the right as the nominal member and thereby to prefer appeal being aggrieved by the decision of the Nominee, there SCA/12610/1994 9/10 JUDGMENT has to be a conclusive proof for conferment of the share certificate in favour of the Association. No share certificate is produced. However, as the Association has not preferred any Appeal or application for leave to prefer appeal, I find it proper to leave the matter at that stage, without observing further on the rights created based on the Resolution and the payment of the nominal membership. 8. In view of the above, it cannot be said that the petitioner was aggrieved by the decision of the Nominee. Therefore, the order of the Tribunal of rejecting the application does not call for interference. Hence, the petition is meritless. Hence, dismissed. However, it is clarified that the present order shall not operate as a bar for concluding the rights, if any, of the aforesaid Association. But as and when such grievance or claim is raised by the Association, the rights and contentions of the Society and all of its members shall also remain open. Rule discharged. I.R., if any, shall stand vacated. No order as to costs. SCA/12610/1994 10/10 JUDGMENT 13.3.2008 (Jayant Patel, J.) vinod