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JUDGMENT

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4821 OF 2013

(Arising out of SLP(C) No. 16977 of 2011)

Makarand Dattatreya Sugavkar

....Appellant

versus

Municipal Corporation of Greater Mumbai and others

....Respondents

J U D G M E N T

G.S. SINGHVI, J.

1.

Leave granted.

2.

This appeal is directed against order dated 22.3.2011 passed by the

Division Bench of the Bombay High Court in Writ Petition No.187/2011

whereby the appellant’s prayer for issue of a mandamus to the Commissioner,

Mumbai Municipal Corporation (respondent No.2) to get the damaged portion of

his flat repaired was rejected but he was given liberty to secure execution of the

order passed by the Maharashtra State Cooperative Appellate Court, Mumbai

(hereinafter referred to as, ‘the Cooperative Appellate Court’).

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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

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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 491.

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.

6.

After submission of the report by the Architects, the appellant filed

Miscellaneous Application No.1/2008 and made the following prayers:

“1.

Respondent society be directed to pay fees of the

Architect and other relevant incidental fees/ expenses.

2.

To bear the cost of the leave and license compensation

for such period starting from the date of start of leave and

license agreement by applicant till the date of suit flat declared

safe for resuming residing in it, by the expert structural

engineers and or architects and all other necessary incidental

expenses of leave and license agreement and its registration and

others. The above expenses should include such expenses that

may be required to be incurred on change and /or extension of

leave and license agreements.”

7.

The Cooperative Appellate Court took co