JUDGMENT : (Sunita Agarwal, CJ.) : Order in Civil Application (for Condonation Of Delay) No. 3543 of 2024 1. Heard learned counsels for the parties and perused the record. 2. The Civil Application No.3543 of 2024 is preferred by the applicant for condonation of delay of 28 days in preferring the Letters Patent Appeal. The delay is explained to the satisfaction of the Court. The delay in filing the appeal is hereby condoned. The delay condonation application is allowed. The office shall allot regular number to the appeal. Order in Letters Patent Appeal No. 653 of 2024 3. The present Letters Patent Appeal is directed against the judgment and order dated 18.04.2024 passed by the learned Single Judge in allowing the Writ petition filed by the respondent Society seeking relief against the Notice dated 03.06.2022 issued by the Ahmedabad Municipal Corporation directing the original petitioner, namely the Society and its members to repair and secure the dilapidated, dangerous and ruinous structure of the petitioner society, instead of taking steps to demolish the structure for reconstruction. A prayer has also been made to issue directions to the respondent no.6, appellant herein, to vacate his Flat No. A/1 in the petitioner Society by issuing necessary directions to the Corporation to do the needful. 4. As noted by the learned Single judge, the original petitioner is a cooperative housing society registered under the provisions of the Gujarat Cooperative Societies Act, 1961 and is the owner of Final Plot No. 117 Paiki (admeasuring 1000 sq. mtr.) in Town Planning Scheme No. 19 of Mouje Sheikhpur-Khanpur, Ahmedabad-3 (Memnagar Vibhag), Taluka Sabarmati, District Ahmedabad. 5. The Society had constructed 12 residential apartments comprising of different types of flats in the year 1978 and allotted them to various persons. The construction of flats being more than 45 years old, they are in highly dilapidated and dangerous state and are structurally unsafe and not repairable anymore. There are corrosion in many of the RCC slabs, beams, columns and foundation due to long term seepage of rain water and water leakage in service lines. The Structural Engineer in its report dated 21.05.2022 has stated that the building in question is in dilapidated and dangerous condition and the structure is so heavily damaged that it is not in a position to be repaired. The Structural Engineer in its report dated 21.05.2022 has stated that the building in question is in dilapidated and dangerous condition and the structure is so heavily damaged that it is not in a position to be repaired. The notice given by the Ahmedabad Municipal Corporation dated 03.06.2022, subject matter of challenge, also states the same. 6. The Society has entered into a MOU dated 10.04.2022 for providing better amenities to its members, namely :- a) Larger size of flats b) Specification c) Lift, Bore, Water Tank, Solar Panel etc. d) Rent e) Gift Money f) Transportation cost g) Furniture and Fixture amount h) Bank Guarantee 7. It is also brought on record that the State Bank of India, who is the owner of Flat No. C/1 in the petitioner society had given in-principle consent for redevelopment and has signed MOU on 05.05.2023. 8. In the facts of the case, it was noted that 11 out of 12 members, i.e. 91.67% members of the Society have consented and signed the MOU, which has been entered by the petitioner Society with the respondent No.5. Recording the above noted facts, it was also noted by the learned Single Judge that each and every communication made by the respondent no.6, viz. the appellant herein has been answered by the original petitioner. 9. It was further noted that the respondent no.6 is in unauthorised occupation of the residential premises for commercial purpose and has applied for regularisation of the unauthorised construction under Section 11(2) of the Gujarat Regularisation of Unauthorised Development Act, 2022 ('GRUDA Act'). The pendency of the said application can in no way stall the process of redevelopment as any decision under the said Act shall not determine the ownership rights of the unauthorised development. While the learned Single Judge has proceeded to refer to the provisions of Section 41A of the Gujarat Ownership Flats Act, 1973 (for short 'the Act' 1973'), it is noted that in view of the Structural Engineer's report dated 21.05.2022, the controversy raised in the Writ petition have to be adjudicated in accordance with the provisions of Section 41 of the Act' 1973. 10. 10. On the argument raised by the learned counsel appearing for the appellant that by virtue of the resolution no.3 dated 14.05.1978, the appellant assumes ownership rights qua the open space, it was held by the learned Single Judge that the said resolution cannot confer or take away any rights qua ownership. Moreover, the said resolution stands withdrawn with a subsequent resolution of the Society for going for redevelopment project as the resolution dated 14.05.1978 itself does not confer any ownership rights upon the appellant. The said resolution only permitted ground-floor flat owners to use open space around the flats and for the second-floor owners, to use the terrace. 11. At this stage, it may be noted that the appellant being the ground-floor flat owner, though was permitted to use the open space around his flat, but he used the said space for commercial purposes, which is not in conformity even with the resolution dated 14.05.1978. The fact that the petitioner has applied for regularisation under GRUDA Act itself is the proof of the fact that the constructions raised by the appellant are unauthorised. 12. Be that as it may, the findings returned by the learned Single Judge that the construction of the building is old and damaged and the report of the Structural Engineer dated 21.05.2022 also states that the building is in dilapidated condition, could not be assailed before us. No infirmity could be shown in the decision of the Society to initiate redevelopment process in accordance with the provisions under Section 41A of the Act' 1973. 13. The only issue raised before us by the learned counsel for the appellant are that no mandamus could be issued by the Writ court, inasmuch as, the appellant, impleaded as respondent no.6, is neither a public body nor has any obligation towards the Society. The Writ of mandamus lies to secure the performance of a public or statutory duty. The prerogative remedy of mandamus is the means of enforcing the performance of public duties by public authorities. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. 14. The Writ of mandamus lies to secure the performance of a public or statutory duty. The prerogative remedy of mandamus is the means of enforcing the performance of public duties by public authorities. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. 14. Reliance has been placed to the decision of the Apex Court in Binny Ltd. & Anr vs V. Sadasivan [ AIR 2005 SC 3202 ] to submit that in exercise of the power under Article 226 of the Constitution of India, a Writ of mandamus could be issued only against a private authority or person when such private authority or person must be discharging a public function and any decision taken by him is sought to be corrected or enforced, which must be in discharge of a public function. A private body can be said to be performing a public function when it seeks to achieve some collective benefit for the public of section of the public and is accepted by the public or that section of the public as having authority to do so. Public functions need be the exclusive domain of the State. If the source of power is a statute or subordinate legislation under a statute, then such private body in question will be subject to judicial review. However, if the source of power is contractual, then the power of judicial review cannot be invoked. It is, thus, argued that an obligation of the appellant against the Society is a contractual obligation and the contract would not be statutory simply because it is for construction of a public utility. 15. The respondent Society, i.e. the original petitioner is a private housing cooperative society registered under the Societies Registration Act and the appellant being a member of the Society, has some contractual obligations being the flat owner. However, when such contractual obligations are not emanating from any public purpose, the appellant is not amenable to judicial review. No direction, as such, can be issued in the nature of mandamus against the appellant asking him to vacate the flat in question. Only option before the Society was to file a Civil Suit for eviction insisting upon the contractual obligation of the appellant and the Writ petition was not maintainable. The learned Single Judge has erred in ignoring this aspect of the matter. 16. Only option before the Society was to file a Civil Suit for eviction insisting upon the contractual obligation of the appellant and the Writ petition was not maintainable. The learned Single Judge has erred in ignoring this aspect of the matter. 16. Considering this submission of the learned counsel for the appellant, we may note that no such arguments have been raised by the learned advocate appearing for the appellant before the learned Single Judge. The only issue raised before the learned Single Judge by the learned advocate appearing for the appellant was that the appellant had applied for regularisation under Section 5 of the GRUDA Act, 2022 and the said application was pending before the competent authority. 17. The Certificate of the Structural Engineer dated 21.05.2022 was disputed by the learned advocate for the appellant and the reliance is placed on the resolution no.3 dated 14.05.1978 to submit that the appellant was allowed to use the open space around his flat on the ground floor. The resolution dated 14.05.1978 was the bone of contention of the appellant to challenge the decision of the Society for redevelopment of the petitioner Society before the learned Single Judge. 18. Be that as it may, as the issue has been raised before us in the instant appeal, though for the first time, we may propose to deal with the same. 19. Considering the reasonings given by the learned single Judge to deal with the submissions of the learned counsel for the appellant about the plea of writ of mandamus having been issued against the private respondent no.6, it would be apt to go through the provisions of the Gujarat Co-operative Societies Act, 1961, which prescribes the rights and liability of the members of the society. There is no dispute about the fact that the society, namely the original petitioner, is a cooperative society registered under the provisions of the Gujarat Co-operative Societies Act, 1961 having registration No. GH 7007 dated 23.03.1979 and has total 12 members. The appellant herein is the member of the housing cooperative society, which has filed a writ petition seeking writ of mandamus commanding the private respondent no.6 to vacate the flat possessed by him in a dilapidated building, for the purpose of redevelopment of the building owned by the society. 20. The appellant herein is the member of the housing cooperative society, which has filed a writ petition seeking writ of mandamus commanding the private respondent no.6 to vacate the flat possessed by him in a dilapidated building, for the purpose of redevelopment of the building owned by the society. 20. As per the definition of ‘member’ as contained in Section 2(13), a member means a person joining in an application for the registration of a co-operative society which is subsequently registered, or a person, duly admitted to the membership of a society after registration, and includes a nominal, associate or sympathizer member. Reading of Section 4 of the Act, 1961 indicates that a society, which has as its object the promotion of the economic interests or general welfare of its members or of the public, in accordance with the co-operative principles, or as society established with the object of facilitating the operations of any such society, may be registered under the Act. Chapter III aligns the provisions as to who may become the members and rights and liabilities of the members of the society. Section 30(2) provides that a member shall not transfer any share held by him or his interest in the capital or property of any society, or any part thereof unless the conditions in Clauses (a) to (c) are fulfilled. Section 33 confers right of a member to inspect, free of cost, at the society’s office during office hours or any time fixed for the purpose by the society, a copy of the Act, Rules, Bye-laws, Balancesheet, Profit and Loss Account etc.. Section 36 provides for ‘expulsion of members’. Section 39 states that every society has to keep a register of its members and shall enter into it the particulars prescribed therein. 21. A registered society comprised of its members is governed by the Co-operative Societies Act, 1961, the rules and the byelaws of the society. Each and every member of the society is bound by the bye-laws of the society registered with the Registrar. With the formation of the society for the benefits of its members, each and every member of the society losses his individual freedom and have to obey the bye-laws of the society, which governs its affairs. 22. Each and every member of the society is bound by the bye-laws of the society registered with the Registrar. With the formation of the society for the benefits of its members, each and every member of the society losses his individual freedom and have to obey the bye-laws of the society, which governs its affairs. 22. The Gujarat Ownership Flats Act, 1973 has been framed to regulate promotion of the construction of, and the sale, management and transfer of flats on ownership basis and to provide for the ownership of an individual apartment and to make such apartment heritable and transferable. Section 20 of the Act, 1973 provides that each apartment owner shall be entitled to the exclusive ownership and possession of the apartment. Section 21 further provides for the entitlement of each apartment owner to an undivided interest in the common areas and facilities. Sub-section(2) of Section 20 provides that each apartment owner to execute a Declaration that he submits his apartment to the provisions of Part II of the Act, 1973 and the Deed of Apartment in relation to his apartment is to be executed in the manner prescribed for the purpose. Section 21 provides for entitlement of each apartment owner to an undivided interest in the common area and facilities in the percentage expressed in the Declaration and Sub-section(3) provides that the common areas and facilities shall remain undivided, and no apartment owner or any person can bring any action for partition or division of any part and any covenant to the contrary shall be null and void. Sections 22 and 23 of the Act, 1973 further reads as under :- “22. Compliance with covenants, bye-laws and administrative provisions - Each apartment owner shall comply strictly with the bye- laws and with the administrative rules and regulations adopted pursuant thereto, as either of the same may be lawfully amended from time to time, and with the covenants, conditions an restrictions set forth in the Declaration or in the Deed of Apartment in respect of his apartment. Failure to comply with any of the same shall be a ground for an action to recover sums due, for damages or injunctive relief or both maintainable by the manager or Board of managers on behalf of the association of apartment owners or, in a proper case, by an aggrieved apartment owner.” “23. Failure to comply with any of the same shall be a ground for an action to recover sums due, for damages or injunctive relief or both maintainable by the manager or Board of managers on behalf of the association of apartment owners or, in a proper case, by an aggrieved apartment owner.” “23. Certain work prohibited :-No apartment owner shall do any work which is likely to jeopardise the soundness or safety of the property, reduce the value thereof or impair any easement or hereditament nor shall any apartment owner add any material structure or excavate any additional basement or cellar without in every such case the unanimous consent of all the other apartment owners being first obtained.” 23. A careful reading of the aforesaid provisions indicate that every apartment owner has to comply strictly with the bye- laws and with the administrative rules and regulations attached thereto, the conditions and restrictions set forth in the Declaration and the deed of apartment in respect of his apartment. The result is that an apartment owner, who is a member of housing co-operative society occupying the apartment/building in the premises owned by the society, is bound by the bye-laws and the rules of the society framed from time to time, in furtherance of the welfare of its members. 24. No member can claim individual right to stall the decision of the society taken by the majority of its members. Moreover, the decision for the redevelopment has been taken in the general meeting of the society, wherein the appellant was required to participate to put his point of view or raise objection, in case of any reservation about the re-development plan. 25. More so, Section 41A of the Gujarat Ownership Flats Act, 1973 enables the redevelopment of a building and reads that :- “41A. Re-development of flats and apartment. – Notwithstanding anything contained in this Act, any work in relation to the re-development of a building can be carried out on such terms and conditions as may be prescribed, after obtaining the consent of not less than 75 per cent. Re-development of flats and apartment. – Notwithstanding anything contained in this Act, any work in relation to the re-development of a building can be carried out on such terms and conditions as may be prescribed, after obtaining the consent of not less than 75 per cent. of the flats owners of such building : Provided that, in respect of such building, - (i) a period of twenty – five years must have been completed, from the date of issuance of permission for development by the concerned Authority; or (ii) the concerned Authority has declared that such building is in ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof. Explanation. - For the purpose of this section, the expression “redevelopment” shall be the meaning as assigned to it in relevant Development Control Regulations.” 26. The statutory requirement in relation to the re-development of a building, requires fulfillment of the conditions prescribed in Section 41A, which are :- (i) After obtaining consent of minimum 75% of the flat owners of such building; (ii) The building has completed 25 years from the date of issuance of permission for development by the competent authority; (iii) Or in a case where the concerned authority has declared the building in a ruinous condition or dangerous to any person occupying, resorting to or passing by such structures. 27. It is not the case of the appellant that the statutory requirements for the redevelopment of the society as per Section 41A has not been fulfilled. As regards the procedure prescribed under the Gujarat Ownership Flat Rules, 1973, with regard to undertaking the redevelopment of the building as per Section 41A, the Managing Committee or the Body shall have to convene a special general meeting of the society or an association, to take policy decision of redevelopment of the building, either suo motu or on an application received from 1/4th members of the flats or the apartments. The project report of the Architect/Project Management Consultant appointed by the Managing Committee as per the special general meeting decision, shall have to be submitted to the Managing Committee, which shall contain necessary details prescribed in Rule 20. The project report of the Architect/Project Management Consultant appointed by the Managing Committee as per the special general meeting decision, shall have to be submitted to the Managing Committee, which shall contain necessary details prescribed in Rule 20. The Secretary of the Managing Committee after receiving the offers from the contractors, builders or company or developer, shall prepare a list of offers received and display the same on the notice board of the office of the building for knowledge and information to the members. The Managing Committee shall have to select one of the developers for redevelopment after careful consideration of the offers received by each contractor/builder or developer. The development agreement shall have to be entered into with the developer in consultation with the architect/project management consultant, incorporating the terms and conditions, as approved by the Special General Meeting, which shall contain the details as under :- “(i) the period of completing re-development project of the building; (ii) a bank guarantee, if any, for amount equal to such sum as may be agreed to by the parties; (iii) free alternative accommodation to the members till the redeveloped flat is handed over to the member, or cash in lieu of existing premises or any combination; (iv) registration of development agreement under the Registration Act, 1908; (v) conditions for admission of new members in the building; (vi) right of the Developer to sell and/or transfer and dispose of the remaining flats forming part of the redevelopment project; (vii) carpet area to be allotted to each member; (viii) the procedure for allotment of flats to the existing and new member; (ix) the procedure of termination of development agreement for, default or breach of any of the conditions of agreement; (x) other terms and conditions such as amenities to be provided by the Developer, corpus fund, if any, shifting charges, common infrastructure development work, penalty clause for delay in completion of the project, obtaining required approvals for redevelopment project, re-development work as per the Development Control Regulations of the concerned authorities; and other matters as per the agreement by the parties.” 28. Rule 24 prohibits developer from making any change in building plan except with the written permission of the Managing Committee. Rule 24 prohibits developer from making any change in building plan except with the written permission of the Managing Committee. After the redevelopment work is completed and the completion certificate as well as building use permission certificate is obtained, the Managing Committee shall allot the flats to the existing members as per the list annexed to the development agreement. 29. From the above discussion, it is evident that the appellant being a member of the Society, is duty bound to obey the bylaws of the Society registered with the Registrar. Being a member of the Society, the appellant lost his right to claim any individual right in the process of redevelopment undertaken by the Society in accordance with the provisions of Section 41A of the Act' 1973. There is no challenge to the decision of the Society to go in for redevelopment within the framework of the Act' 1973 as prescribed under Section 41A of the said Act. 30. As noted hereinbefore, it is not the case of the appellant that the statutory requirements for redevelopment of the Society as per Section 41A has not been fulfilled or the procedure has not been followed. For the issue raised by the appellant about his right to use any area, viz. the open space in front of his flat for commercial purposes based on the resolution dated 14.05.1978 do not detain us for long, inasmuch as, no infirmity can be found in the observation made by the learned Single Judge taking note of the provisions of the Act' 1973, which provides that each apartment owner has to execute a declaration that he submits his apartment to the provisions of Part II of the Act' 1973 under Sub-section 20(2) of the said Act and that Section 21 provides for entitlement of each apartment owner to an undivided interest in the common areas and facilities in the percentage expressed in the declaration. Sub-section (3) of Section 21 provides that the common areas and facilities shall remain undivided and no apartment owner or any person can bring any action for partition or division of any part thereof. Any covenant to the contrary shall be null and void. 31. In view of the provisions contained in Sections 20, 21, 22 and 23 of the Act' 1973, noted hereinabove, we may record that the appellant cannot claim any right, title or interest in the common area, viz. Any covenant to the contrary shall be null and void. 31. In view of the provisions contained in Sections 20, 21, 22 and 23 of the Act' 1973, noted hereinabove, we may record that the appellant cannot claim any right, title or interest in the common area, viz. the open space utilised by him for commercial purposes in the garb of a permission granted by the Society vide resolution dated 14.05.1978. 32. Coming to the plea of the appellant about the maintainability of the Writ petition or the issuance of Writ of mandamus by the learned Single Judge, we may note that the contractual obligations of the appellant are subject to the provisions of Sections 20, 21, 22 and 23 of the Act' 1973 of the Gujarat Ownership Flats Act, 1973 as aligned in the foregoing paragraphs of this judgment. The statute confers a duty upon the flat/apartment owner to abide by the aforesaid provisions and Section 21(3) providing for any covenant to the contrary about the usage of any areas and facilities of the apartment in its application for the claim of the appellant, the resolution dated 14.05.1978 would be a nullity. Whatever happened with the passage of time, the only permission granted by the Society in its resolution dated 14.05.1978 to permit the ground floor flat owners to use the open area around their flats was subject to the review by any subsequent resolution of the Society, which in the instant case came with the resolution to go in for redevelopment. 33. As the appellant being a member of the Society is obliged to obey the rules and bylaws of the Society and the decision of the Society for going for redevelopment, we hold that the contractual obligation of the appellant emanates from the two statutes, namely the Gujarat Cooperative Societies Act, 1961 and the Gujarat Ownership Flats Act, 1973. The source of privileges conferred upon the appellant and the duties and obligations of the appellant, emanating from the statute, the power of judicial review to issue directions in the nature of mandamus commanding the appellant to vacate the flat allotted to it in the Society and handover the peaceful and vacant possession for the redevelopment as per Section 41A of the Act' 1973, cannot be said to suffer from any error of law. 34. 34. The plea of the appellant to dismiss the Writ petition being not maintainable is, thus, outrightly rejected. 35. For the above discussion, we do not find any error in the conclusion drawn by the learned single Judge that the respondent No.6 being the member of the Society lost their individual right to challenge the decision of the Society, taken by the majority of its members. There is no error in the decision that the appellant is neither being affected nor dispossesed from the flat occupied by him, rather it is a temporary arrangement for shifting to an alternative premises, wherein the appellant would be able to reside till the redevelopment is undertaken. It was rightly concluded by the learned single Judge that the petitioner society has met with and complied with the provisions enumerated in Section 41A of the Act, 1973. Once it was decided to go for the redevelopment, we as a Court of appeal, do not find it a fit case to invoke our extraordinary supervisory jurisdiction to interfere in the order of the learned single Judge, consequently in the redevelopment process initiated by the society. 36. The decision relied upon by the learned counsel for the appellant in support of the challenge to the impugned order of the learned single Judge, is of no benefit in the facts and circumstances of the present case. 37. For the aforesaid, the appeal is found to be devoid of merits. Hence, it is dismissed. With the dismissal of the Letters Patent Appeal, no orders are required to be passed in the Civil Application. It stands disposed of, accordingly.