Since you have taken interest to open this article, I believe that you might be associated or be concerned for any association which might have registered under the Bombay Non-Trading Corporation Act, 1959 (hereinafter referred to “Said Act”), this article might be little technical and boring to some as there are interpretation of legal provisions but utmost care is made to keep this article lucid.

The Said Act was incorporated on 30th April 1959 which was adapted and modified by the Gujarat Adaptation of Laws Order,1960. This Said Act was brought in force to provide for incorporating regulations and winding up of non-trading corporations whose objects are confined to the State of Bombay and for the matters incidental thereto. Thus many associations and body of individuals which wished to form a corporation whose objective were non profit were registered under the Said Act. For the purpose of registration of corporations under this Act, the State Government was suppose to appoint Registrar and such Additional Joint as it thinks necessary to assist the Registrar and may by general or special order confer on those assisting the Registrar all or any powers of Registrar as bestowed in the Said Act. Therefore a Government Notification was issued by Finance Department dated 14th May 1964 , by that the Government of Gujarat appointed the Deputy Commissioner of Sales Tax (Head Quarters) Ahmedabad to be the Registrar.

Therefore the Registrar had powers as bestowed in the Said Act to take actions regarding such associations or non-trading corporation as incorporated under the Said Act, among such powers the Registrar could a.) call for information b.) special audit could be made by registrar c.) investigation of affairs of corporation can be made by the registrar d.) enforce the production of documents and evidence e.) power to enforce an attendance f.) power of Registrar to assess damage against delinquent promoters g.) Cancelling of registration and dissolving a corporation registered under the Said Act. Thus the registrar functioned as a statutory authority to regulate the non-trading corporations or associations as registered under the Said Act and there was a check and balance in the system.

On 25th February, 2005 the Government of Gujarat brought into force an act to repeal the Said Act by introducing Bombay Non-Trading Corporations (Gujarat Repeal) Act, 2005 (hereinafter referred to as “Said Repeal Act”), therefore the repeal was made under provisions of Section 7 of the Bombay General Clause Act, 1904. The Said Repeal Act was introduced with an objective and with an observations that the type of activities as envisaged under the Said Act can be also be undertaken by forming a society under the Societies Registration Act, 1860 or under the Bombay Public Trusts Act,1950 and therefore it was seemed unnecessary by legislatures to continue a special legislation for the purpose of promoting or encouraging commerce, industry, literature, arts, science, diffusion of useful knowledge foundation and maintenance. Thus it was expected by the associations and corporations incorporated under the Said Act to re-register or form a new association by dissolving the existing association registered under the Said Act, however it is important to note that since the Said Repeal Act was made in such a manner that the provisions of Section 7 of Bombay General Clause Act, 1904 was applicable as if the Said Repeal Act has been an enactment within the meaning of the said section 7 of Bombay General Clause Act. Therefore Section 7 of Bombay General Clause Act, 1904 is reproduced herein under

Bombay General Clause Act –Section 7: Where this Act, or any Bombay Act [or Maharastra Act], made after the effect of commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accord or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal ‘proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.

7A. Where any Bombay Act [or Maharastra Act] made after the commencement of this Act repeals any enactment by which the text of any previous enactment was amended by the express omission, insertion or substitution of any matter, then, unless, a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.

So, the interpretations for the same with respect to present subject matter is this wise that when any enactment is repealed under this section then in that case, unless there is a different intention appearing in any enactment of repeal- the repeal shall not not revive anything not in force or revive anything which is existing at the time at which the repeal takes effect but it shall not affect any previous operation of any enactment so repealed or anything duly done or suffered thereunder. The repeal shall also not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed however along with that the repeal shall also not affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed, therefore one cannot escape from demand of a statutory authority under any law which is liable to be paid, as the repeal shall also not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. The section 7A of the Bombay General Clause Act also saves the amendment made to an enactment, unless there a different intention so appearing in the repeal, the repeal shall not affect the continuance and operation of such amendment made to the enactment which is repealed under Section 7 of the Bombay General Clause Act.

Therefore when the The Bombay Non-Trading Corporation (Gujarat Repeal) Act, 2005 (the Said Repeal Act) is brought into force to repeal The Bombay Non-Trading Corporation Act,1959 under Section 2 (1) of the Said Repeal Act, then such repeal is to considered to be made under Section 7 of the Bombay General Clause Act, 1904 which is categorically mentioned in the Said Repeal Act under Section 2 (2). Therefore such repeal does not revive which is not in force and neither it shall not revive anything existing at the time when repeal takes effect but it preserves your rights, privileges, obligations, liability acquired, accrued or incurred under the Said Act, it also gives immunity to the previous operation of any enactment so repealed or anything done or suffered thereunder.

So in my considered view the Said Repeal Act shall not allow any association, organisation or non-trading corporation to function further from the date of the Said Repeal Act however since the previous right and obligations as enumerated in Section 7 are protected so there shall be no illegality or hinderance in continuing any association or non trading corporation even after the repeal act but it would be merely a body of individuals as the Said Repeal Act does not allow you to revive which is existing you can only maintain the old association or organisation as it was on the date of Said Repeal Act and you may not be able to add or remove any member, or make any changes to the association or non trading corporation which were existing as on the date of the Said Repeal Act. Thus in my view it would be nothing but a living corpse, therefore the intention of legislation to bring the Said Repeal Act is to be understood and be taken in the right spirit, if the object and intention of the Said Repeal Act mentions that, for any promotion and encouragement of any commerce, industry, literature, arts, science, diffusion of useful knowledge foundation and maintenance a Society could be formed under the Societies Registration Act, 1860 or a Trust can be formed the Bombay Public Trusts Act,1950 I see no good reason why an association or non trading corporation should not re-register under the Societies Registration Act, 1860 or Bombay Public Trusts Act,1950. It is also important to understand that since the Said Act is repealed, now there is no statutory authority viz. Registrar who was functioning with the powers such as calling for information, special audit by registrar, investigation of affairs of corporation, enforce the production of documents and evidence, power to enforce an attendance, power to assess damage against delinquent promoters, Power to cancel the registration and dissolving a corporation registered under the Said Act, therefore any issue with regards to the members of any association of non trading corporation can be resolved by the Civil Court only, which in my personal view could be a very tiresome and cumbersome procedure for any member of an association/organisation and it would deeply impact the growth of any organisation. It is essential to refer a case of Hon’ble High Court of Gujarat where few members of Gujarat Institute of Housing and Estate Developers (GIHED) (previously registered with Bombay Non-Trading Corporation Act) approached the Hon’ble Gujarat High Court by challenging an order of City Civil Court which rejected their injunction application seeking direction against a new association formed by other few members of GIHED under Section 25 of The Companies Act, 1956, however it is interesting to note that the High Court of Gujarat has observed at page 6 of the Said Judgement (as link given below) that from the date of the Said Repeal Act the association of GIHED was rendered as unregistered association and therefore it was a body of individuals, the Hon’ble High Court also went to extend to observe that such unregistered association of GIHED pursuant to repeal could have formed a company by complying with necessary provisions of the Companies Act, 1956.

Therefore in conclusion if your association or non trading corporation was registered under Bombay Non-Trading Corporation Act then it would be imperative to re-register your association under a relevant provision of law for a smooth and effective functioning of an association, organisation or non trading corporation.

Disclaimer: This article is only to disseminate the information and it may not be construed as a legal opinion by whatsoever, in case you have any query regarding the subject matter or any other, then you may contact any legal practitioner known to you for the same. The views expressed in this article are personal and in case if you have any query or suggestions please write to Mr. Shrijit Pillai, Advocate at pandpassociates.16@gmail.com.