Authority: High Court of Judicature at Bombay, Civil Appellate Jurisdiction

Order Date: Judgment pronounced 07 October 2026 (original Deputy Registrar order dated 07 May 2026)

Case Overview

  • Parties: Petitioner – ALJ Residency Co‑operative Housing Society Limited; Respondent No.1 – Gehlot Development Services Pvt. Ltd. (also referred to as GAHLOT Development Services); Respondent No.2 – Deputy Registrar, Co‑operative Societies, H/West Ward, Mumbai; Respondent No.3 – State of Maharashtra (Secretary, Co‑operation, Marketing and Textiles Department).
  • Background: The land (Plot No.49‑C, Pali Mala Road, Bandra West) was originally developed by Bhati Homes Pvt. Ltd. MCGM issued an Intimation of Disapproval on 4 Aug 1994 and a Commencement Certificate (CC) up to plinth level for Phase‑I. On 16 Oct 1998 the building plans were sanctioned, allowing a basement of 59.02 sq m designated as storage and the rest for parking. The developer illegally constructed up to the 7th floor (plan allowed only up to 5th floor) and left the basement incomplete, without a ramp or staircase. Flats on the 6th and 7th floors were sold and the purchasers formed the petitioner‑society.
  • Respondent No.1’s Claim: Purchased a basement unit of 250.83 sq m (≈2700 sq ft) via an unregistered Agreement for Sale dated 2 Aug 2004 with Bhati Homes. Paid stamp duty and registered a Deed of Declaration. Applied for membership under Section 22(2) of the Maharashtra Co‑operative Societies Act (MCS Act) on 7 Feb 2009; the Deputy Registrar granted deemed membership on 21 Aug 2009 and the society issued Share Certificate No.21 on 14 Oct 2009.
  • Subsequent Litigation: The society filed Revision Application No.93/2018 before the Divisional Joint Registrar (DJR) on 8 Jan 2018; DJR dismissed it on 20 July 2022. The society then filed Writ Petition No.1057/2023, which the High Court set aside the 2009 and 2022 orders on 14 Nov 2025 and remanded the matter to the Deputy Registrar to determine whether the basement premises qualify as a “flat” under the statute.
  • Deputy Registrar’s May 2026 Order: After reviewing the plan dated 25 Apr 2008 (showing the premises as a “Data Processing Unit” – DPU) and a NOC from the Chief Fire Officer, the Deputy Registrar directed the society to grant membership to Respondent No.1 for the basement DPU.
  • Petitioner’s Writ Petition (No.10241/2026): Challenged the May 2026 order, arguing that the Deputy Registrar exceeded the remand scope by relying on the 2008 plan (which was never sanctioned) and the fire‑officer NOC, instead of the original 1998 sanctioned plan that designated the entire basement as common parking/storage. The petitioner cited multiple precedents (e.g., S.N. Choudhary, Nahalchand Laloochand, Ashwini Heights) asserting that basements are common amenities unless expressly sanctioned as separate units.
  • Respondent’s Defence: Counsel Ankit Lohia argued that the petition is non‑maintainable because the statutory revision remedy under Section 154 was not exhausted, but also contended that the basement portion of 59.02 sq m is sanctioned as storage (i.e., a godown) and therefore qualifies as a “flat” under Section 154B‑1(13) of the MCS Act. He highlighted the society’s own NOCs (31 May 2011 for electricity, 3 Apr 2008 for loading TDR) and the society’s willingness to regularise the basement, 6th and 7th floors by purchasing TDR.
  • Key Documentary Evidence:
  • Letter dated 31‑May‑2011 granting NOC for electricity and steps to the basement.
  • Letter dated 3‑Apr‑2008 authorising loading of TDR for regularisation of basement, 6th and 7th floors.
  • Letter dated 29‑Aug‑2008 to the Collector of Stamps confirming the entire basement (≈2700 sq ft) was allotted to Gehlot in 2000.
  • Architect’s letters (24‑Oct‑2008, 19‑Mar‑2008) indicating the basement was proposed as an IT‑user and that TDR of 640 sq m was purchased for regularisation.
  • Various court filings (Writ Petition No.406/2018, LC Suit No.560/2022) showing the society’s earlier stance that the basement could be regularised.
  • Court’s Reasoning:

1. The remand order required the Deputy Registrar to examine the original sanctioned plan and decide if the premises constitute a “flat”.

2. The 1998 plan sanctions 59.02 sq m of storage space in the basement; this area is FSI‑free but is nonetheless a sanctioned unit akin to a godown.

3. The Deputy Registrar’s reliance on the 2008 plan and fire‑officer NOC does not invalidate the finding because the 2008 plan shows the premises as a DPU, and the fire‑officer NOC confirms that the proposed amendment was technically feasible.

4. The society’s own conduct—issuing NOCs, participating in regularisation, and granting membership in 2009—creates estoppel against its present claim of illegality.

5. Section 154B‑5 (introduced 2019) cannot be applied retrospectively to the 2009 membership grant.

6. The court notes that granting membership to the 59.02 sq m portion does not encourage the sale of common amenities and aligns with precedent (Ashwini Heights, Mistry Park).

  • Final Outcome:
  • The Deputy Registrar’s order of 7 May 2026 is confirmed.
  • Membership to Gehlot Development Services is restricted to the sanctioned 59.02 sq m portion of the basement, which shall be treated as residential for the purpose of redevelopment benefits.
  • The writ petition is dismissed; no costs are awarded.
  • The petitioner's request for an 8‑week stay of the judgment is rejected.

Topics: Membership Dispute, Cooperative Housing Regulation