ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

The present Letters Patent Appeal is filed against the judgment and order dated 02.05.2024 passed by the learned single Judge allowing a writ petition filed by the Co-operative Housing Society, which has decided for re-development as contemplated under the Gujarat Ownership Flats Act, 1973 (hereinafter referred to as ‘the Act, 1973’). While allowing the writ petition, the learned single Judge has directed the private respondents 6 to 9 to vacate their respective flats falling within the jurisdiction of the petitioner Co-operative Society and handover the peaceful and vacant possession thereof for re-development as per the aforesaid provisions within eight weeks from the date of receipt of the order and further to co-operate in the re-development of the petitioner No.-1 society. Out of four respondents against whom the direction has been issued by the learned single Judge, three are before us in the instant appeal.

2. Challenging this order, the learned counsel for the appellant has vehemently submitted that no mandamus can be issued against the private persons, as the private respondents before the writ court-the appellants herein, are not performing any public law functions. No public or statutory duty has been cast upon them and hence, the directions issued by the learned single Judge in the order impugned of summary eviction of non-consenting members of the society, cannot be approved of. It was further argued that in case of any grievance of the society, it ought to have invoked the provisions of Section 96 of the Gujarat Co-operative Societies Act, 1961 to bring the dispute before the Board of Nominees between the society and its members. In any case, the writ petition was not maintainable. It was further submitted that the appellants have serious objections about the resolution of the society in going ahead with the redevelopment, inasmuch as, the requirement of the statutory Rule 20 of the Act, 1973 to furnish the Books of Accounts and other necessary documents to the Members has not been complied with.

3. Reliance is placed on the decisions of the Apex Court in Mani Subrat Jain and Others vs. State of Haryana and Others [(1977) 1 SCC 486], VST Industrices Ltd. vs. VST Industries Workers’ Union and Another [(2001) 1 SCC 298] and Binny Ltd. and Another vs. V. Sadasivan and Others [(2005) 6 SCC 657]. It was further argued that the learned single judge has erred in relying on the decision of the Division Bench of this Court dated 23.01.2023 in Sarojben Kiritbhai Shah since deceased Through Heirs vs. Ahmedabad Municipal Corporation in Letters Patent Appeal No. 1075 of 2022 to form an opinion that the society has complied with the conditions for the redevelopment and consequentially directing for eviction/dispossession of the appellants, inasmuch as, the issue raised by the appellants about the maintainability of the writ petition, has not been decided. Placing reliance on the Apex Court decision in Municipal Corporation Of Delhi vs Gurnam Kaur [(1989) 1 SCC 101], it was submitted that the judgment of this court in the aforesaid LPA, is sub silencio and cannot be treated as a precedent.

4. Taking note of the above submissions of the learned counsel for the appellants, we may record that the learned single Judge has noted that 18 apartments in three blocks (having six flats each) on the petitioner society’s land were constructed in an around the year 1959, i.e. more than 62 years back, and were allotted to the members of the society. The construction of the apartment being very old, structures are in a highly dilapidated state and has become dangerous to the public life. They were damaged in earthquake of 2001 and repaired by the members with the help of earthquake relief fund established by the Government of Gujarat. Because of the ruinous condition of the structure, notices have been given by the AMC under Section 264 of the Gujarat Municipal Corporat