Makarand Dattatreya Sugavkar vs Mun.Corp.Of Gr.Mumbai & Ors

3. The appellant is a member of respondent No.3-Shree Sainiketan Cooperative Housing Society Ltd. He was allotted Flat No.001 in the building constructed by respondent No.3 at Borivali (West), Mumbai. Respondent No.3 claims to have carried out major repairs in 2005-06 and all its members except the appellant contributed towards the expenses. The appellant disputed his liability to pay the expenses incurred by respondent No.3 and raised a dispute under the Maharashtra Cooperative Societies Act, 1960. It is not clear from the record as to what was the fate of the original dispute filed by the appellant before the Cooperative Court IV, Mumbai, but this much is evident that the matter was carried to the Cooperative Appellate Court in Revision Application No.73/2007.

4. On 9.12.2007, a portion of the roof of the flat allotted to the appellant collapsed and his mother is said to have suffered injuries. The appellant’s brother, who is an Advocate, made a complaint to the officers of the Municipal Corporation of Greater Mumbai (for short, ‘the Corporation’). Thereupon, Assistant Engineer (Buildings and Factories), North Ward directed the concerned Junior Engineer to inspect the flat. The latter inspected the premises on 10.12.2007 and reported that a portion of the roof had collapsed. Thereafter, notice dated 12.12.2007 was issued to the Chairman/Secretary of respondent No.3 under Section 354 of the Mumbai Municipal Corporation Act, 1888 (for short, ‘the 1888 Act’) and they were directed to carry out repairs in the flat within a period of two months. It was also mentioned in the notice that if the needful is not done then prosecution may be launched under Section 475-A and repairs may be carried out under Section 489 and the cost recovered in accordance with Section

5. In the meanwhile, M/s. Parlekar and Dallas, Architects were directed by the Court to visit the flat and submit a report about its status as also the estimate of cost/expenses of repair works required to be carried out. The Architects inspected the flat and submitted report showing the damage to the flat but did not give an estimate of the cost of repairs.

7. The Cooperative Appellate Court took cognizance of the correspondence between the appellant and the officers of the Corporation on the one hand and the officers of the Corporation and respondent No.3 on the other and the notices issued by the Competent Authority under Section 354 of the 1888 Act and observed:

8. In October-November, 2008 Executive Engineer (Special Zone VII) inspected the appellant’s flat and submitted a separate report showing the extent of damage. Thereafter, Assistant Commissioner, R/North Ward sent letter dated 22.12.2008 to the appellant and asked him to seek approval of the Commissioner under Section 499 of the 1888 Act for executing the work with a stipulation that once the approval is granted, he may deduct the expenses from the rent/maintenance charges.

10. On 5.2.2010, the Assistant Engineer issued another notice under Section 354 to the Chairman/Secretary of respondent No.3 requiring it to carry out the structural repairs to the east side of the columns of the society building at the ground, first, second and third floors and the damaged portions in flat Nos.001 and 002. That notice contained stipulations similar to those specified in notice dated 12.12.2007.

11. In response to the second notice, respondent No.3 sent reply dated 5.4.2010 mentioning that the appellant was not allowing inspection of the flat by its Structural Auditor to facilitate the repairs. Thereupon, the Assistant Commissioner sent letter dated 22.4.2010 to the appellant and asked him to remain present in the joint meeting arranged in his Chamber on 28.4.2010. However, instead of attending the meeting, the appellant filed Writ Petition No.187 of 2011 for issue of a mandamus to respondent No.2 to invoke Section 489 of the 1888 Act and get the flat repaired at the cost of respondent No.3. The appellant pleaded that respondent No.2 was bound to take necessary steps in terms of Section 489 because respondent No.3 had failed to comply with the notices issued under Section 354 of the 1888 Act.

22. In view of the above discussion, we hold that the Division Bench of the High Court did not commit any error by relegating the appellant to the remedy of seeking execution of the directions contained in order dated 21.2.2008 passed by the Cooperative Appellate Court.

23. The appeal is accordingly dismissed leaving it open for the appellant to secure execution of order dated 21.2.2008 passed by the Cooperative Appellate Court.