Bombay High Court
ALJ Residency Co-Operative Housing Society LimitedversusGehlot Development Services Pvt Ltd
- Decided
- Disposal
- Disposed Off
Holding
The Deputy Registrar’s order granting membership to Respondent No.1 is valid, but limited to the 59.02 sq.m. portion of the basement that is sanctioned as storage and qualifies as a ‘flat’ under the MCS Act.
Summary
The ALJ Residency Co‑operative Housing Society challenged the Deputy Registrar’s order granting membership to Gehlot Development Services for a basement unit, arguing that the premises are a common amenity, not a ‘flat’, and that the petition bypassed the statutory revision remedy. The court examined the sanctioned building plan, the definition of ‘flat’ under the Maharashtra Co‑operative Societies Act and the Maharashtra Ownership Flats Act, and considered the society’s prior conduct in regularising the basement. It held that a 59.02 sq.m. portion of the basement is sanctioned as storage, which falls within the statutory definition of a flat and therefore qualifies for membership. The court also noted that the petitioner had previously exhausted the revision remedy and could not avoid it by filing a writ. Consequently, the order granting membership was upheld, limited to the sanctioned area, and the writ petition was dismissed.
Issues considered
- Whether the Deputy Registrar exceeded the remand by granting membership based on a proposed DPU rather than determining if the premises constitute a ‘flat’ under the MCS Act.
- Whether the basement premises claimed by Respondent No.1 qualify as a ‘flat’ within the meaning of Section 154B‑1(13) of the Maharashtra Co‑operative Societies Act.
- Whether the petitioner must first pursue the revision remedy under Section 154 of the MCS Act before approaching the High Court.
- Whether the regularisation process and purchase of TDR affect the entitlement to membership.
- Application of Section 154B‑5 limiting membership to the number of flats sanctioned.
Legislation cited
- Development Control Regulations, 1991 — s. 35(2)
- Maharashtra Co-operative Societies Act, 1960 — s. 154B-1(13), 154B-5, 22(2)
- Maharashtra Ownership Flats Act, 1960 — s. 2(a-1)
Subjects
- co‑operative housing society
- membership
- section 22(2) MCS Act
- flat definition
- basement premises
- regularisation
- revision remedy
- TDR
- deemed conveyance
- development control regulations
Judgment
Neeta Sawant WP 10241 of 2026
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10241 OF 2026
ALJ Residency Co-operative Housing ...Petitioner
Society Limited
: Versus :
1. Gehlot Development Services Pvt.
Ltd.
2. The Deputy Registrar, Co-operative
Societies H/West Ward, Mumbai
3. State of Maharashtra, through the
Secretary, Co-operation, Marketing
and Textiles Department ...Respondents
Mr. Mayur Khandeparkar with Mr. Shanay Shah, Mr. Aman Saraf, Mr.
Deepak Singh and Ms. Krina Kothari i/b. SL Partners, for the Petitioner.
Mr. Ankit Lohia with Mr. Akash Loya, Ms. Sonal Awasthi, Mr. Ronish
Mehta, Mr. Manee Vishwakarma and Mr. Jerome Stephen i/b. Vinod Mistry
& Co., for Respondent Nos.1 and 2.
Ms. Savina R. Crasto, AGP for State.
CORAM: SANDEEP V. MARNE, J.
JUDGMENT RESD ON: 23 SEPTEMBER 2026
JUDGMENT PRON. ON: 07 OCTOBER 2026
PAGE NO. 1 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
JUDGMENT:
1) Petitioner is a co-operative housing society and has filed the
present Petition challenging order dated 7 May 2026 passed by the
Deputy Registrar, Cooperative Societies, H-Ward, Mumbai Division,
allowing the application preferred by Respondent No.1 under Section
22(2) of the Maharashtra Co-operative Societies Act, 1960 (MCS Act) and
thereby granting membership of the society to it in respect of the
basement (Data Processing Unit) in the building.
2) Briefly stated, facts of the case are that the land bearing
Plot No.49-C, Pali Mala Road, Pali Naka, Bandra (West), Mumbai was
taken up for development by the developer - M/s. Bhati Homes Pvt. Ltd.
The Municipal Corporation for Greater Mumbai (MCGM) issued
Intimation of Disapproval (IOD) on 4 August 1994 and Commencement
Certificate (CC) was granted upto plinth level for Phase-I. On 16 October
1998, the Municipal Corporation sanctioned the building plans by
issuing the commencement certificate. In the sanctioned plan, there was
a basement below the ground level. In that basement, area admeasuring
59.02 sq.m. was sanctioned as storage space and apparently the rest of
the area was sanctioned for parking of vehicles. The plans were
sanctioned for construction of the building only upto 5 th floor. However,
the developer apparently committed several irregularities in
construction of the building and constructed the same upto 7 th floor.
Respondent No.1 claims to have purchased premises admeasuring 250.83
sq.m. equivalent to 2700 sq.ft. in the basement of the building vide
Agreement for Sale dated 2 August 2004 executed with M/s. Bhati Homes
PAGE NO. 2 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
Pvt. Ltd. At that time, the Agreement for Sale was unregistered. It
appears that the developer failed to complete construction of the
building (which he constructed upto 7 th floors), which does not have
Occupation Certificate (OC). Construction of the basement was left
incomplete by the developer, which does not have any ramp or staircase
for access. In the meantime, flats on the 6 th and 7th floors were sold by the
developer. The flat purchasers in respect of the premises from ground to
7th floor formed and registered Petitioner-society.
3) It appears that for regularization of the building, additional
BUA was required and therefore it was decided to purchase external TDR.
Since Respondent No. 1 was interested in getting regularized the
basement premises, it claims to have purchased TDR required for
regularisation of basement, 6th and 7th floor of the building and plans
were submitted to MCGM for regularisation. The plans were processed
internally by the MCGM. However, the same were not finally sanctioned
and the regularisation proposal remained unfructified.
4) In the meantime, Respondent No.1 paid stamp duty on the
Agreement for Sale dated 2 August 2004 and registered a Deed of
Declaration in respect of the said Agreement for sale. On 7 February
2009, Respondent No.1 applied to the society in respect of the basement
premises allegedly purchased by him from the developer. Since the
application was not decided by the society, Respondent No.1 filed
Application No.4/2009 under Section 22(2) of the MCS Act before the
Deputy Registrar seeking deemed membership. The society opposed the
application by filing reply. By order dated 21 August 2009, the Deputy
PAGE NO. 3 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
Registrar allowed the application of Respondent No.1 and granted to it
deemed membership with the Petitioner-society. The Society complied
with the order dated 21 August 2009 and issued him Share Certificate
No.21. After delay of 9 long years, the Petitioner-Society filed Revision
Application No. 93/2018 before the Divisional Joint Registrar challenging
the Deputy Registrar’s order dated 21 August 2009. By order dated 20
July 2022, the Divisional Joint Registrar dismissed the revision.
Petitioner-society filed Writ Petition No. 1057 of 2023 challenging the
order of the Divisional Joint Registrar. By order dated 14 November
2025, this Court set aside the orders dated 21 August 2009 passed by the
Deputy Registrar and 20 July 2022 passed by the Divisional Joint
Registrar and remanded the proceedings to the Deputy Registrar for re-
adjudication of the application holding that the authorities were
required to examine whether the premises claimed by Respondent No.1
have the character of ‘flat’ as defined under the statute. In the remanded
proceedings, Petitioner-society relied upon the sanctioned plan in
support of its contention that the entire basement is parking/common
area with no sanctioned access. By order dated 7 May 2026, the Deputy
Registrar has allowed the application of Respondent No.1, inter alia
holding that as per the plan dated 25 April 2008, the premises claimed by
Respondent No.1 are sanctioned as ‘Data Processing Unit’ (DPU) which
are being used by Respondent No.1 as a godown. The Deputy Registrar
has accordingly directed the society to complete the proceedings for
grant of membership to Respondent No.1 in respect of the basement
(DPU).
PAGE NO. 4 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
5) Petitioner-society has filed the present petition challenging
the Deputy Registrar’s order dated 7 May 2026, instead of filing revision
before the Divisional Joint Registrar.
6) Mr. Khandeparkar, the learned counsel appearing for the
Petitioner-society submits that Petitioner may not be relegated to
alternate remedy of filing revision on account of violation of remit of
remand delineated by this Court in the order dated 14 November 2025.
That invocation of writ jurisdiction is justified on account of Authority
traveling beyond the scope of remand and committing a jurisdictional
error. In support, he relies on judgment of this Court in S. N. Choudhary
vs. Dongre Park Coop. Society Ltd. and Ors. 1 That in any case, the
Petition involves a pure question of law and therefore exercise of
alternate remedy is not mandatory. In support, he relies on judgment of
the Apex Court in Godrej Sara Lee Ltd. vs. Excise and Taxation Officer-
cum-Assessing Authority and Ors.2 Since there are already precedents
that govern the field, it is not necessary to file revision as held by this
Court in Shireen Sami Gadiali and Anr. vs. Spenta CHSL and Ors.3
7) Mr. Khandeparkar further submits that the impugned order
passed by the Deputy Registrar is grossly illegal as the same exceeds the
scope of enquiry delineated by this Court by its order dated 14 November
2025. That this Court had directed the Deputy Registrar to examine the
sanctioned plan and the layout to arrive at the conclusion as to whether
the subject premises is a ‘flat’ or not. That the order dated 14 November
1
2025 SCC OnLine Bom 4386
2
2023 SCC OnLine SC 95
3
2011 (3) MhLJ 486
PAGE NO. 5 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
2025 has attained finality. However, the Deputy Registrar has exceeded
the scope of remanded enquiry by placing reliance on NOC issued by the
Chief Fire Officer for the purpose of reaching a finding that the subject
premises is a DPU. That the Deputy Registrar has totally ignored the
officially sanctioned plans. That subject premises is a mere basement
and common area for parking and storage as per the sanctioned plan
dated 16 October 1990. That the storage indicated in the sanctioned plan
is a common amenity not meant for sale. That FSI is used for the said
storage area. That the architect of Respondent No.1 had submitted plans
for approval to MCGM in 2008 for mere change of user of the subject
premises from basement to IT unit and admittedly such approval has not
been granted.
8) Mr. Khandeparkar submits that this Court has repeatedly
held that sanctioned plan must alone be considered to evaluate the
status of particular premises. He relies on judgment of this Court in Dr.
Vasant P. Jain vs. Secretary/Chairman Suvarna – Sapna CHS Ltd. and
Ors.4, Amanul Ekramul Ansari vs. State of Maharashtra and Ors 5 and
Ashwini Heights CHSL vs. Jyoti Nitin Lunia and Ors.6 That in
Nahalchand Laloochand Pvt. Ltd. vs. Panchali Cooperative Housing
Society Ltd.7, this Court has expressly recognized that basement is
always a common amenity. That therefore, common storage space
located in basement which is free of FSI and which is incapable of being
regularized, cannot be treated as a ‘flat’ for grant of membership in the
4
2025:BHC-OS:4553
5
Writ Petition No.1293 of 2026 decided on 2 February 2026
6
2026:BHC-AS:34441
7
(2010) 9 SCC 536
PAGE NO. 6 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
society. He relies on Model Bye-laws in support of his contention that
basement is a common area of the society. Relying on definition of the
term ‘flat’ under Section 154B-1(13) of the MCS Act, he submits that
storage space located in basement cannot be treated as a ‘flat’.
9) Mr. Khandeparkar submits that the premises claimed by
Respondent No.1 does not even have any access. That only access point
is a floor hatch/lid located on the ground floor through which one can
enter the basement. That the impugned order proceeds on an erroneous
finding that the premises claimed by Respondent No.1 is a DPU. That
mere proposed plan of 2008 is taken into consideration by the Deputy
Registrar which has never been sanctioned. That the approval/NOC
issued by the Chief Fire Officer does not elevate the proposed plan to the
status of sanctioned plan.
10) Mr. Khandeparkar further submits that the contention of
Respondent No.1 of estoppel by conduct is baseless and contrary to law.
That Petitioner’s conduct in participating in regularisation process
cannot act as an estoppel as to law. That subject premises are not
regularisable in law and therefore the conduct of the Petitioner becomes
irrelevant. He relies on Regulation No.35(2) of DCR 1991 in support of
his contention that the area of basement is excluded from FSI
computation. That even the ‘summary’ of IOD plan dated 16 October
1998 indicates that the storage space in the basement area is FSI-free.
That there is no parity between Respondent No.1 and occupants of flats
on 6th and 7th floor who have paid valuable consideration. That
Respondent No.1 has never purchased the basement premises but claims
PAGE NO. 7 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
to have received the premises from the developer in lieu of monetary
compensation. That Respondent No.1 has suppressed the letter dated 9
September 2002 submitted by it to MCGM admitting that basement
premises are received by him by way of a barter. That provisions of
Section 154B-5 of MCS Act do not permit grant of membership in excess
of sanctioned flats in the building. That therefore no amount of conduct
of Petitioner-society can stop operation of Section 154B-5 of the MCS
Act. Mr. Khandeparkar further submits that it has come to light that the
TDR allegedly purchased by Respondent No.1 has been sold in open
market to third parties and has never been allotted in any part of the
building. That Respondent No.1 has suppressed the factum of sale of
TDR. On above broad submissions, Mr. Khandeparkar prays for setting
aside the impugned order passed by the Deputy Registrar.
11) Mr. Lohia, the learned counsel appearing for Respondent
No.1 opposes the petition. He raises a preliminary objection as to
maintainability of the Petition, submitting that Petitioner-society has
not exhausted the remedy of revision as was done previously in respect
of earlier order dated 21 August 2009 passed by the Deputy Registrar. He
relies on judgment of this Court in Vinay M. Ahuja and Anr. vs.
Divisional Joint Registrar of Cooperative Societies and Ors. 8 in support
of plea of non-maintainability of the Petition.
12) Mr. Lohia further submits that the Petitioner has
suppressed material facts. That Petitioner has falsely pleaded that
‘basement regularization’ never fructified by suppressing the fact that
8
2025 SCC OnLine Bom 3303
PAGE NO. 8 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
there was a common regularization application for regularization of
basement, 6th and 7th floors. That said documents were conveniently
relied upon in LC Suit No. 566 of 2022 for restraining the MCGM from
demolishing the flat of the deponent of the Petition on the 6 th floor. That
before the City Civil Court, the deponent of the Petition raised a plea
that his flat cannot be demolished on account of processing of
regularization proposal by the MCGM. However, in the present Petition,
the said deponent has taken a volte face and has misrepresented to this
Court that the regularization proposal has never fructified. He takes me
through several documents relating to regularization proposal to show
active participation of the society therein. He submits that the society
has also suppressed the fact that it filed Writ Petition No. 406 of 2018 for
deemed conveyance by relying on documents pertaining to common
regularization activity for basement as well as 6 th and 7th floors. That
relying on those documents, this Court directed grant of deemed
conveyance in favour of the Petitioner. That since Petitioner-society has
not approached this court with clean hands, the petition deserves to be
dismissed. In support, he relies on judgment of this Court in K. Jayaram
vs. Banglore Development Authority9, Ramjas Foundation vs. Union of
India10, and Elder Project Limited vs. Elder Neutraciticals Pvt. Ltd. 11
13) Mr. Lohia further submits that the Petitioner-society cannot
approbate and reprobate in respect of grant of membership. The stand
now taken by the society that the premises occupied by Respondent No.1
are not sanctioned as per the 1998 plan is inconsistent with the stand
9
(2022) 12 SCC 815
10
(2010) 14 SCC 38
11
2026 SCC OnLine Bom 1855
PAGE NO. 9 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
taken by it contemporaneously in its advocate’s letter dated 5 October
2015. That in any case, even in the 1998 plan, area admeasuring 59.02
sq.m. is sanctioned, which is confirmed in the report dated 9 October
2015 of Kapil Bakshi. That Petitioner’s entitlement to membership qua at
least the sanctioned area admeasuring 59.02 sq.m. cannot be disputed.
That even flats on the 6 th and 7th floors are beyond the sanctioned plan.
However, society granted membership to flat purchasers on the 6 th and
7th floor of the building including to the deponent of the Petition. That
society cannot discriminate amongst the occupiers who are similarly
placed. That Petitioner is therefore estopped from denying membership
to the Petitioner. In support, he relies on judgment of the Apex Court in
State of Punjab and Ors. vs. Dhanjit Singh Sandhu12.
14) Mr. Lohia further submits that if membership can be granted
to occupants of 6th and 7th floor on contemplated regularization, the
same benefit needs to be extended to Respondent No.1. He relies on
judgment in Kamla Spaces Premises Co-op Society Ltd. vs. Divisional
Joint Registrar, Co-op. Societies, Mumbai Division 13 and Uday Dalal
and Ors. vs. Divisional Joint Registrar, Co-op. Societies and Ors. 14 In
support of plea of similar treatment, he relies on judgment in Om
Prakash Banerjee vs. State of West Bengal and Ors. 15, Rajendra Yadav
vs. State of Madhya Pradesh and Ors.16 and Ravindra Kini vs.
Municipal Commissioner and Ors.17
12
(2014) 15 SCC 144
13
Writ Petition (L) No.2579 of 2024 decided on 27 March 2024
14
2025 SCC OnLine Bom 5202
15
2023 SCC OnLine SC 771
16
(2013) 3 SCC 73
17
2026:BHC-AS:28665-DB
PAGE NO. 10 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
15) Mr. Lohia further submits that the basement cannot be used
in the facts and circumstances of the present case as a parking space as
the ramp required for vehicular access to the basement is not
constructed. That therefore basement premises are regularisable as DPU.
That the factum of sanction of 59.02 sq.m. of built-up area (BUA) as
storage belies the contention that the entire basement is for parking
purposes. That basement premises otherwise falls into definition of the
term ‘flat’ as per Section 154B-1(13) of the MCS Act. He relies on
judgment of this Court in Mistry Park CHS Ltd. vs. Dr. Bharat Prem
Shivdasani and Ors.18 and Simla House CHSL vs. Yayati Ramesh
Vairale and Ors.19 and Ashwini Heights (supra).
16) Mr. Lohia further submits that the manner in which the
premises are purchased by Respondent No.1 is of little relevance.
Whether Respondent No.1 is paid monetary consideration or not or has
received basement premises in lieu of recoupment of expenses is not
society’s concern. That Petitioner holds a registered instrument of
ownership of the basement premises and is entitled to membership. In
support, he relies on judgment in Apna Sahakari Bank Ltd. and Anr. vs.
Matulya Centre Premises Co-op. Soc. Ltd. and Ors. 20 and Ashwini
Kumar Joshi and Anr. vs. Dy. Registrar of Co-op. Societies and Ors. 21
On above broad submissions, Mr. Lohia would pray for dismissal of the
Petition.
18
2023 SCC OnLine Bom 3002
19
2026 SCC OnLine Bom 2627
20
2019 SCC OnLine Bom 650
21
2026 SCC OnLine Bom 10535
PAGE NO. 11 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
17) Rival contentions urged on behalf of the parties now fall for
my consideration.
18) It must be observed at the very outset that the Petitioner
has filed the present Petition without exhausting the statutory remedy of
filing revision under Section 154 of the MCS Act. In the present Petition,
Petitioner has directly challenged order passed by the Deputy Registrar
under Section 22(2) of the MCS Act, which is clearly revisable before the
Divisional Joint Registrar under Section 154 of the Act. It must be
observed here that this is the second round before the Co-operative
Registrar. In the earlier round of litigation, application preferred by
Respondent No.1 was allowed by order dated 21 August 2009. At that
time, Petitioner had filed revision before the Divisional Joint Registrar,
albeit belatedly on 8 August 2018. It is only after the Revision was
dismissed that Petitioner-society had approached this Court by filing
Writ Petition No. 1057 of 2023. Having exercised the alternate remedy of
revision in the previous round, there is no valid reason why the
Petitioner can bypass the statutory remedy this time and approach this
Court directly by filing the present Petition. Ordinarily, this Court would
not have entertained the present Petition and would have relegated the
Petitioner to the alternate remedy of revision. However, at the insistence
of the Petitioner, the present petition was repeatedly taken up for
hearing by this Court and attempts have been made to settle the disputes
between the parties. The settlement has, however, not fructified.
19) Petitioner has particularly relied upon order of remand
made by this Court on 14 November 2025 and has justified direct filing of
PAGE NO. 12 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
the present Petition contending that the remit of remand is violated by
the Deputy Registrar. Reliance in this regard is placed on judgment of
this Court in S.N. Choudhary (supra), which, however, does not lay down
the law that when remit of remand is violated, alternate relief can be
bypassed. The judgment is an authority on the principle that quasi-
judicial authority cannot travel beyond the limit set by this Court for
adjudication in remanded proceedings.
20) Reliance is also placed on judgment of this Court in Nook
CHSL vs. Pyramid Developers22 in which an order of remand was set
aside remanding the matter to the Competent Authority only for the
purpose of ascertainment of land proportionate to the BUA consumed in
construction of the building. However, in Nook CHSL (supra), the issue
of alternate remedy was not involved since there is no alternate remedy
available against the order passed by the Competent Authority.
Petitioner has relied upon judgment of Full Bench of this Court in
Shireen Sami Gadiali (supra), which again does not lay down an abstract
principle of law that remedy of revision under Section 154 of the MCS
Act cannot be treated as an alternate remedy in every case. Reliance on
judgment of the Apex Court in Godrej Sara Lee Ltd. (supra) is also
inapposite as the judgment restates the proposition in Whirlpool
Corporation vs. Registarar of Trademarks, Mumbai 23, which makes
exception to the rule of alternate remedy where petitioner seeks
enforcement of fundamental rights where there is violation of principles
of natural justice, where order is without jurisdiction, or where vires of
22
2026 SCC OnLine Bom 2774
23
(1998) 8 SCC 1
PAGE NO. 13 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
the Act is challenged. Also in Godrej Sara Lee Ltd., jurisdictional issue
was raised by the appellant in the writ petition questioning the very
competence of the revisional authority to exercise suo moto power.
Therefore, the judgment of the Apex Court in Godrej Sara Lee Ltd. can
also not be relied upon for bypassing the statutory remedy of revision
against the order passed by the Deputy Registrar.
21) I am therefore not convinced that in the facts and
circumstances of the present case, statutory remedy of revision could
have been bypassed. A suggestion was given to the Petitioner-society
during the course of hearing to avail the alternate remedy of filing a
revision. However, Mr. Khandeparkar has insisted that since the Petition
is heard on multiple occasions, it is better that this Court decides the
same rather than relegating the Petitioner to alternate remedy. Thus, it
is on the insistence of the Petitioner that this Court has entertained the
present Petition and proceeds to decide the same on merits.
22) Before adverting to the core issue involved in the present
Petition about entitlement of Respondent No.1 to membership of
Petitioner society on the strength of rights claimed by it in the basement
premises, it must be noted at once that there is a clear shift in the stand
of the Petitioner-society qua the issue of grant of membership to
Respondent No.1. Respondent No.1 had earlier succeeded before the
Deputy Registrar, who had directed grant of membership to Respondent
No.1 vide order dated 21 August 2009. Petitioner-society complied with
the said order and issued Share Certificate No.21 in favour of Respondent
No.1 on 14 October 2009. For next 9 years, the Petitioner-society did not
PAGE NO. 14 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
have qualms about grant of membership to Respondent No.1. It decided
to challenge grant of membership to Respondent No.1 after 9 long years
and filed Revision Application No. 93 of 2018 before the Divisional Joint
Registrar on 8 January 2018. I do not propose to delve deeper into the
reasons as to how the Revision was entertained by the Divisional Joint
Registrar after passage of 9 long years. The revision was however
entertained and was dismissed on merits. The Petitioner accordingly
filed Writ Petition 1057 of 2023, challenging the order of the Divisional
Joint Registrar dated 20 July 2022 and secured an order of remand of
proceedings to the Deputy Registrar. In the remanded proceedings,
Respondent No.1 has again succeeded and the Deputy Registrar has
directed grant of membership to Respondent No.1. This is how
Respondent No.1 is still fighting a battle with the Petitioner-society even
though he had secured membership way back on 21 August 2009.
Respondent No.1 remained member of the Petitioner-society from 21
August 2009 till the order of the Deputy Registrar was set aside by this
court on 14 November 2025. Be that as it may, this Court directed
remand of the proceedings before the Deputy Registrar by order dated 14
November 2025 and in the remanded proceedings, grant of membership
to Respondent No. 1 is restored. Thus, except a very short gap between
14 November 2025 (date of order of this Court) to 7 May 2026 (date of
passing of order by Dy. Registrar) Respondent No. 1 has been the
member of the Petitioner society since 21 August 2009.
23) The Petitioner has questioned correctness of the Order
passed by the Dy. Registrar directing grant of membership to Respondent
No. 1 in respect of the basement premises (DPU). As observed above, the
PAGE NO. 15 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
impugned order is passed by the Deputy Registrar in pursuance of order
of remand made by this Court on 14 November 2025. It is Petitioner’s
contention that the remit of remanded inquiry is violated by the Deputy
Registrar while passing the impugned order. It would therefore be
necessary to take note of the order passed by this Court. In paragraph
Nos. 6 to 10 of the order dated 14 November 2025, this Court observed as
under:
6. The authorities under the Act were required to record a clear finding on
these aspects. They were duty bound to determine whether the premises
described in the sale deed fall within the statutory definition of a flat in
Section 2(a-1) of the Maharashtra Ownership Flats Act and Section 154B-1-
(13) of the MCS Act, 1960. They were also required to decide whether such
premises form part of the common areas and facilities. This determination is
not a formality. It flows from the statutory scheme. MOFA places clear duties
on the promoter and protects the collective rights of purchasers in respect of
spaces reserved for common use. If an area is shown in the sanctioned plan as a
common amenity, it carries with it a legal consequence. Such space belongs to
all members. It cannot be sold as an independent unit. It cannot be converted
into a flat by a mere recital in a document.
7. The authority must, therefore, examine the sanctioned plan, the layout, the
disclosure made by the promoter and the statutory definition of common areas.
Only then can it reach a conclusion. It is also needed to decide whether
membership can be granted in respect of a space that may not have the
character of a flat as defined by the statute. This exercise calls for a careful
appraisal of documents and applicable legal provisions.
8. If the premises are not recognized as a flat under law, the further question
arises whether the society can be compelled to confer membership in respect
of such an area. These findings are essential for a lawful and reasoned decision.
Their absence renders the orders vulnerable.
9. In view of this lapse, the impugned orders cannot stand. The orders dated 20
July 2022 and 21 August 2009 are set aside.
10. The Deputy Registrar, Co-operative Societies, H/West Ward, Mumbai shall
reconsider the matter. He shall decide the questions framed above on the basis
of the material placed before him. The exercise shall be completed within four
months from the date of this order.
PAGE NO. 16 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
24) Thus, the Deputy Registrar was required to decide whether
premises in respect of which rights are claimed by Respondent No.1 are
covered by definition of the term ‘flat’ under Section 154B-1(13) of the
MCS Act or whether such premises merely form a part of common areas
and facilities. In the impugned order, the Deputy Registrar has taken
note of the plan dated 25 April 2008 and has held that the premises are
described as a DPU in the said plan. The relevant findings recorded by
the Deputy Registrar in paras-2 to 8 of the order reads thus:
2. The premises in respect of which the Applicant is seeking membership form
part of the common areas and amenities of the Society and its members. The
common areas are meant for the collective benefit of all the members of the
Society, and the said premises cannot be taken possession of, or transferred, as
private property by any individual/member. Any alleged sale/transfer
transaction effected by the promoter cannot be binding on the Society or its
members. The said premises allegedly purchased by the Applicant must be
covered by the definition of ‘flat’ under Section 2(a-1) of the MOFA and by the
relevant provisions of the Maharashtra Co-operative Societies Act, 1960.
Unless the said requirement is fulfilled, no right of membership can arise under
Section 22(2) of the Maharashtra Co-operative Societies Act, 1960. The
Applicant is at present entering the basement by opening a door on the ground
and is using the same. The Applicant is claiming rights through the alleged
sale agreement dated 02.08.2004 and the registered declaration dated
21.11.2008. The Society has argued that common premises cannot be
converted into an independent unit/flat merely by reason of the description of
the premises in the alleged registered sale deed.
3. Under cover of the letter dated 09.08.2007, a revised plan was submitted to
the Municipal Corporation on 13.08.2007. In the revised plan, the said premises
were proposed as a ‘Data Processing Unit’, and the same had been included in
the FSI. By the letter dated 24.10.2008, the Architect submitted the revised
plan to the Executive Engineer, Building Proposals Department, where the unit
on the ground floor has been shown as ‘IT User’, and it has been informed that
the area of the Applicant’s premises on the ground floor has been counted in
the FSI and that the same can be accessed through an independent staircase.
The Applicant has filed submissions to the effect that, as recorded in Paragraph
No. 4 of the sale agreement dated 02.08.2004, the Applicant has purchased a
distinct, self-contained and independently identifiable enclosed unit situated
in the basement, and, in support thereof, the Applicant has submitted a copy of
PAGE NO. 17 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
the letter dated 24.10.2008 submitted by the Architects, M/s. H. M. Jhaveri &
Sons, to the office of the Executive Engineer, Building Permission (W.S.).
4. Section 2(a-1) of the MOFA Act, 1960 provides: “Flat Means a separate and
self contained set of premises used or intended to be used for residence or
office, or showroom, or shop or godown or for carrying on any industry or
business (and includes a garage) the premises forming part of a building (and
includes an apartment)”.
5. Further, Section 154B-1(13) of the Maharashtra Co-operative Societies Act,
1960 provides that “Flat” means a block, chamber. dwelling unit, tenement,
office, showroom, shop, godown, premises, suite, gala, unit or by any other
name, that is to say, a separate and self-contained group, of any immovable
property, comprising one or more rooms or enclosed spaces, situated in a
building or on a plot of land, on one or more floors or on any part thereof,
which is used or intended to be used for any residential or commercial use such
as residence, office, shop, showroom or godown, or for carrying on any trade,
business, profession or calling, or for any other kind of ancillary use incidental
to the specified purposes;
6. In the present case, various plans have been submitted to the Municipal
Corporation. However, the Applicant has, in the present case, submitted the
plan dated 25.04.2008 filed with the Municipal Corporation, wherein it is seen
that the said premises have been referred to as “Data Processing Unit”. Further,
the advocates of the Applicant have, at the time of the hearing, stated that the
said premises are being used as a godown. Section 154B-1(13) of the
Maharashtra Co-operative Societies Act, 1960 provides that “Flat” means Unit
or by any other name. Considering the said provision, it prima facie appears
that the said premises fall within the definition of a flat.
7. The Society has raised a question mark over the validity of the registered sale
agreement dated 02.08.2004 and the registered declaration dated 21.11.2008.
However, the question of determining the validity of the agreement and of the
declaration does not fall within the jurisdiction of this office. If the Respondent
Society has any dispute in respect of the said agreement and declaration, it
would be appropriate for the Society to seek redress in that behalf before the
concerned competent authority / court.
8. Further, no order cancelling the registered sale agreement dated 02.08.2004
and the registered declaration dated 21.11.2008 submitted by the Applicant in
the present case, or granting any stay or injunction in respect thereof, has been
produced before this office by the Respondent Society or by anyone else.
25) This is how the Deputy Registrar has recorded a finding that
since premises are reflected as DPU in the plan and since they are being
PAGE NO. 18 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
used as a godown, the same fall within the definition of the term ‘flat’.
The remit of inquiry is thus not violated by the Deputy Registrar who has
held, upon perusal of the records before him, that there is sanction to the
basement premises. The order of the Deputy Registrar therefore needs to
be tested on merits and not on the ground of violation of remit of
remand.
26) Thus, the Deputy Registrar has taken into consideration the
document dated 25April 2008 for holding the premises of Respondent
No.1 as a ‘flat’. Mr. Khandeparkar has taken me through the document
dated 25 April 2008. The same is an approval issued by the Chief Fire
Officer of MCGM to the proposed amended plan in which the basement
was proposed to be regularised as storage space and staircase was
proposed to be constructed for accessing the basement. The Chief Fire
Officer expressed ‘no objection’ to the proposed amendments subject to
various conditions. Thus, the document relied upon by the Deputy
Registrar dated 25 April 2008 is not a sanctioned plan, but it is merely
one of the documents required for processing sanction of a plan.
However, the said document indicates that the basement premises were
capable of being regularized.
27) Various documents relating to regularization proposal are
placed on record and the same indicate that Architect had submitted
plans in the year 2008 for regularization of basement and 6th and 7th
floors of the building. As observed above, even 6th and 7th floors have
been constructed by the developer in contravention of the sanctioned
plan dated 16 October 1998. It appears that the Respondent No. 1 had
PAGE NO. 19 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
shown willingness to purchase the TDR required for regularisation of the
basement, 6th and 7th floors of the building. Why Respondent No. 1
showed willingness to purchase TDR required for regularisation of 6 th
and 7th floors is incomprehensible. There appears to be some connect
between the developer and the Respondent No. 1, who is also involved in
real estate development activities. It might have been associated in
construction of the building by the developer. This is clear from the fact
that the developer had agreed to sale the basement premises to
Respondent No. 1 to satisfy the dues of Respondent No. 1. What exactly
were the dues is neither known at this stage nor is relevant for deciding
the issue at hand. After noticing that TDR was required for regularization
of basement, 6th and 7th floors, Respondent No. 1 showed willingness to
purchase the same, possibly because it wanted to have the basement
regularized. There appears to be some evidence of purchase of such TDR.
It is through this purchased TDR that plans were submitted for
regularization of basement and 6th and 7th floors of the building. It is an
undisputed position that regularisation proposal was processed and the
same was at an advanced level of being sanctioned. However, at that
stage, the same was left midway. Why this has happened is not known at
this stage. Suffice it to observe that the basement, 6th and 7th floors of
the building do not have approval from the planning authority. But the
striking feature of the regularization process is the fact that all the three
premises of basement, 6th floor and 7th floors stand on the same pedestal.
Therefore, all the three premises must meet the same fate.
28) Ordinarily, this Court would have set aside the order passed
by the Deputy Registrar once it is found that there is no sanction to the
PAGE NO. 20 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
basement structure in the approved plan. However, by applying this
parameter, even grant of membership to occupants of 6th and 7th floor
will have to be revoked since the flats occupied by them also do not have
any sanction/permission and the same also do not fit into definition of
the term ‘flat’ as sanctioned by the planning authority. In fact,
Respondent No. 1 appears to be better situated as compared to
occupants of flats on the 6th and 7th floors. As against total absence of
sanction for flats on 6th and 7th floors, there is at least some sanction in
respect of part of the premises on the basement. In the basement, area
admeasuring 59.02 sq.m. (635.37 sq.ft.) has been sanctioned as ‘storage
space’. Thus, at least qua area admeasuring 59.02 sq.m., there appears to
be some sanction even in the original plan dated 16 October 1998. The
entire basement is not for parking amenity as sought to be suggested by
the Petitioner-society.
29) For extension of different treatment, one may seek to draw a
distinction between the occupants of 6th and 7th floor flats and
Respondent No.1 by contending that constructed flats are capable of
being regularised but basement, being a common amenity, can never be
regularised. In this connection, Mr. Khandeparkar has relied upon
judgment of Division Bench of this Court in Nahalchand Laloochand
(supra) in support of his contention that basement has to be always
treated as a common amenity. Ordinarily, there can be no dispute about
this proposition. However, in every case, the basement cannot be a
common amenity, and it can always depend on facts and circumstances
of each case. There are cases where Municipal Corporations / planning
authorities sanction premises in the basement for various uses. In this
PAGE NO. 21 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
regard, reference can be made to the judgment of this Court in Ashwini
Heights (supra) in which membership was sought qua a godown located
in the basement of the building. Once this Court was satisfied that
godown in the basement was sanctioned in the municipal plan, this
Court upheld the right of occupant thereof for separate membership.
Therefore, it cannot be stated as a matter of universal principle that in
every case where a basement is constructed, the same would always be a
common amenity. This Court held in paras-24 and 25 of the judgment in
Ashwini Heights as under:
24) To put any doubt to rest, Respondent Nos.1 and 2 have procured separate
occupation certificate dated 10 March 2021 qua only the godown. They have
also secured a separate commencement certificate qua the godown on 6 July
2021. The said commencement certificate dated 6 July 2021 sanctions the
godown as was done in the original sanctioned plan dated 25 June 1993. The
godown is now assigned a number, which was lacking in the original plan. The
comparative difference in the description of the godown in the original and
revised sanctioned plans is as under:-
Description in the sanctioned plan Description in the Revised
dated 25 June 1993 sanctioned plan dated 6 July 2021
GODOWN for NON COMBUSTIBLE GODOWN NO. FOR NON
MATERIAL 22’-8’ X 11’-0’’ 272.09 SQFT COMBUSTIBLE MATERIAL 22’ - 8’’x
B/UP 11’- O”=272.09 sq.ft. B/UP
25) Thus, in the revised sanctioned plan, the godown is assigned a separate
number (Godown No. 1) since the Society was attempting to confuse the
godown as a part of shop No.8. Thus, in the original plan itself godown was
always a separate structure of shop No.8. To quell any doubts, the revised
sanctioned plan now identifies godown as a separate structure by assigning it a
separate number.
30) Therefore, the proposition that no premises located in the
basement can ever be regularised for individual use, appears to be
something which cannot be accepted as a universal principle. In the
PAGE NO. 22 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
facts and circumstances of a given case, even premises located in the
basement are capable of being regularised for a particular use. This is
clear from the facts and circumstances of the present case, where
regularisation proposal was processed and was at a very advanced stage.
If premises located in the basement are incapable of being regularised
for any purposes for individual use, the Municipal Corporation would
have rejected the proposal at the threshold. In the present case, it
appears that regularization was required because there was deficit
BUA/FSI for basement and 6th and 7th floors. The society itself believed
that the basement premises were capable of being regularized and
participated in the regularization process. It never treated that the
basement was a common amenity for use by all the residents of the
building. Petitioner-society cannot now be permitted to take a volte face
and question possibility of regularisation of basement.
31) Now I proceed to consider the manner in which Petitioner-
society conducted itself when proposal for regularisation of basement
was submitted. The society did not object to the basement being
regularised for being used exclusively by Respondent No.1 nor it
contended that the basement is a common amenity to be used by all
members. During 2007-08, when the regularization was at an advanced
stage, the Petitioner-society actively participated in the said process and
gave its consent for regularization of the basement premises. In this
regard following letter of the society is of relevance:
Dt: 31-5-2011
Sub.: Basement premises.
PAGE NO. 23 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
Sir,
Recently BMC has inspected the basement and found severe mosquito
breathing in your basement and instructed to clean up and illuminated
Annexing herewith the Society’s NOC for obtaining electric meter / connection
for your basement premises in Society building.
You are requested that on receipt of electric connection, provide one water
pump during monsoon for dewatering accumulated water if any and keep the
basement dry and also to illuminate the basement with sufficient lightings
during dark.
Secondly, we have also no objection of your constructing steps at the entrance
of your basement, so as to enable proper access to your basement.
You are requested to expedite the above in order to keep the area mosquito
free.
Yours faithfully,
For ALJ Residency Co-Op. Hsg. Soc. Ltd.
32) In the letter dated 31 May 2011 issued to Respondent No.1,
the society also issued NOC for obtaining electricity meter/connection
for the basement premises. The society also issued NOC for construction
of steps at the entrance of basement for accessing the same. The society
also issued specific NOC for loading of TDR for regularisation of inter
alia the basement vide letter dated 3 April 2008 which reads thus:
Date: 3/04/08
To,
The Executive Engineer,
Building Proposal (W.S),
Municipal Corporation of Greater Mumbai,
Bandra (West), Mumbai.
Sub: No objection for loading T.D.R on land bearing CTS No.873 to 885 Of
Village Bandra at junction of Pali Mala Road and Dr Ambedkar Road, Bandra
(west), Mumbai only for the regularization of the existing 6 th and 7th floors and
Basement.
Ref: B.M.C. File no.CE/9855/ BS II/A.II
Sir,
PAGE NO. 24 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
Further to our meeting held at the Ch. Eng. (Mr. Naik) office, and our
promise given to him then, we permit M/S Bhati Homes Pvt. Ltd. to load
the TDR for regularizing the existing 6 th and 7th floors and basement
which were constructed by him without obtaining proper sanction from
BMC. Since the developer M/s Bhati home pvt ltd. has now submitted the
proposal with the T.D.R. to regularize the existing 6th and 7th floors and
basement, we hereby request you to process our file at the earliest.
We would like to also inform you to that the developer has agreed to
pay all the taxes, penalties. premiums, deficiencies or any other tax that maybe
levied upon him for the regularization and getting OC for the current
structure which consists of basement, ground and seven upper flooг.
We have no objection for solely and solely for the loading the
T.D.R. on the above proposal and get the existing 6th and 7th floor and
basement of our building regularized and the obtaining of OC of the
building.
We are ready to co-operate with the Municipal Corporation of Greater
Mumbai, developer and architect to get our building regularized.
Thanking you,
Yours faithfully.
(emphasis and underlining added)
33) Thus, by letter dated 3 April 2008, the Petitioner-society
desired regularization of 6th and 7th floors, as well as of the
basement ,all of which was constructed without obtaining proper
sanction from MCGM. The NOC was granted for loading of TDR for
regularization of the 6th and 7th floors and the basement of the building.
There is no dispute to the position that TDR has been purchased. It is
claimed by Respondent No.1 that it purchased the TDR and this position
also does not appear to be disputed by the Petitioner-society. However,
since the building plans were being submitted in the name of the
developer, purchase of TDR was apparently in the name of the developer.
PAGE NO. 25 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
34) From the conduct of Petitioner as discussed above, it clearly
appears that the society was desirous of getting the basement
regularised by loading of TDR. At that time, the occupants of 6th and 7th
floors of the building were members of the society, who desired
regularization of their flats free of cost through TDR purchased by
Respondent No.1. Thus, far from merely co-operating with Respondent
No.1 for regularisation of the basement, it appears that the society and
its members (particularly residents of 6th and 7th floors) were more than
eager that Respondent No.1 purchases the requisite TDR for such
regularisation.
35) There is another important event which also indicates
absence of any reservation by Petitioner-society to regularisation of
basement for exclusive use by Respondent No.1. Respondent No.1, who
was spearheading the regularization process not only of basement but
also of 6th and 7th floors, desired membership of the society. To secure
membership, Respondent No.1 wanted to have the Agreement for Sale of
2004 registered by paying the deficit stamp duty. The society issued
NOC by letter dated 29 August 2008 to the Collector of Stamps as under:
Date: 29th August, 2008.
To,
The Collector of Stamp Andheri, Mumbai.
Sir,
This is to inform you that the entire basement (lower ground floor) area
admeasuring about 2700 Sft. built up area of our Society building situated on
PAGE NO. 26 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
Plot bearing C.T.S. No. C/873, C/874, C/875, C/884 and C/885 of Bandra (West),
was allotted by Developers M/S. BHATI HOMES PVT. LTD. to M/S. GAHLOT
DEVELOPMENT SERVICES PVT. LTD. in the year 2000. The said basement is
in possession of the said M/S. GAHLOT DEVELOPMENT SERVICES PVT.
LTD. since the year 2000/9/5.
Thanking you,
Yours faithfully
For ALJ RESIDENCY CHS LTD.
(emphasis and underlining added)
36) Thus, the society emphatically admitted that the entire
basement admeasuring 2700 sq.ft. BUA was allotted by the developer to
Respondent No.1 and that the same has been in ‘possession’ of
Respondent No.1 since the year 2000. Acting on the NOC issued by the
society, Respondent No.1 executed a Deed of Declaration for the purpose
of payment of deficit stamp duty, paid amount of Rs.898350/- plus
penalty under the Abhay Yojna and registered the said Deed of
Declaration by attaching Agreement for Sale dated 2 August 2004.
37) Simultaneously, Respondent No.1 purchased the TDR and
the proposal for regularization of basement, 6th and 7th floors were
processed by MCGM in accordance with the plans submitted by the
developer’s architect. In the Architect’s letter dated 24 October 2008, it
was stated as under:
In this case lastly the plan were approved for basement (pt) for storage
and parking of shops on ground floor + 1 st to 5th upper floors for residential
flats. C.C. upto plinth for Phase-I was granted. However our client carried out
PAGE NO. 27 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
work beyond C.C. i.e. for basement below building, Ground + 5 upper floors and
6th and 7th floors without approval. Hence Stop Work Notice was issued and the
case was included in 154 cases.
Our client has now purchase TDR of 640 Sq.Mt. to regularize the 6 th and
7th floors. The basement is now proposed for I.T. User as per Government
Notification under no. TPB-432001881/CR-108/2001/UD-11 (copy
attached). The area of basement is counted in FSI. It is to be mentioned
that to generate the required fund for paying penalties / premium etc.
our client asked to proposed use in basement. Due to this proposal will
be economically viable.
In view of flats mentioned above, we hereby request your goodself to
issue necessary order to E.E.B.P. (WS) H/ward to allow user in basement
counted in FSI for the user.
Kindly do the needful at earliest and oblige.
(emphasis and underlining added)
38) Thus, the proposal for regularisation of basement was
mooted essentially to generate funds for payment of penalties for
regularisation of other areas (6th and 7th floors). This is how, the Architect
submitted plans for use of basement as IT user after purchase of TDR of
640 sq.m. for regularization of 6th and 7th floors and the basement. The
proposal went before the Fire Department whose NOC was required. By
letter dated 24 April 2008, the Chief Fire Officer issued NOC for
regularization of the basement for IT user. It appears that though the
regularization proposal was at an advanced stage of being sanctioned by
MCGM, for some odd reason, the regularization process got halted. The
exact reason for non-fructification of the regularization proposal is not
known at this point of time.
39) From the above chronology of events, it is clear that the
Petitioner-society was always willing to have the basement regularised.
PAGE NO. 28 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
Its members, particularly residents of 6 th and 7th floor, who were facing
demolition actions from MCGM were eager that Respondent No.1
provided for their regularization by spending monies for purchase of
TDR. The Society apparently did not have any objection for admission of
Respondent No.1 as its member. On 7 February 2009, Respondent No.1
applied for membership of Petitioner-society. The society failed to
decide the application. Therefore, Respondent No.1 was required to
approach the Deputy Registrar for grant of membership. When the
Deputy Registrar made an order dated 21 August 2009 directing grant of
membership to Respondent No.1. The society duly complied with the
order and issued Share Certificate to Respondent No.1 on 14 October
2009. The society did not challenge the order passed by the Deputy
Registrar on 21 August 2009 for the next 9 long years. Thus, till the year
2018, the Petitioner-society never objected to exclusive use of the
basement by Respondent No.1. It even maintained membership of
Respondent No.1 in respect of the basement. However, since the
regularization proposal remained unfructified, the society apparently
took a volte face and decided to challenge grant of membership to
Respondent No.1 in the year 2018.
40) However, even while the Petitioner-society filed Revision
Application No.93 of 2018 before the Divisional Joint Registrar
challenging grant of membership to Respondent No.1, it continued
justifying possibility of regularization of basement premises in various
collateral proceedings. The society filed Writ Petition No.406 of 2018
challenging the order of the Competent Authority dated 30 January 2017
and sought deemed conveyance of the land and the building in its favour.
PAGE NO. 29 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
At various places in the memo of the said petition, Petitioner-society
justified capability of regularization of basement premises. In this
regard, pleadings in paras-16, 17, 19, 30(k) and 30(l) of the Petition are
relevant:
16. The Petitioners state that the Architect of the Respondent No.22 by
their letter dated 19th March 2008 addressed to MCGM informing that
Respondent No.22 had already submitted the TDR of 400 sq. mtr. on 31 st
October 2007 and that the Respondent No.22 purchased further TDR of
240 sq. mtr. and attached the utilization form and agreement. Hereto
annexed and marked EXHIBIT-”R-1” is the copy of the said letter dated
19th March 2008 addressed to MCGM by the Architect of the Respondent
No. 22. The Petitioners state that they had also provided their No
Objection vide their letter dated 3rd April 2008 addressed to the
Ex Engineer Municipal Corporation for loading T.D.R. and to get
the existing 6th and 7th Floor and basement of the said Building
regularized. Hereto annexed and marked EXHIBIT - “R2” is the copy of
the said letter dated 3rd April 2008 addressed to MCGM by the
Petitioners.
17. The Petitioners submit that the stability certificate was also
obtained by the Architects and as per the said stability certificate there
was No Objection to allow the work up to the seven floors from
structural aspect. Therefore by the internal communication dated 7th
October 2009 the Dy. Chief Engineer, MCGM put up the proposal for
fixing a date for the hearing of Municipal Commissioner. Hereto
annexed and marked EXHIBIT - “S” is the copy of the said letter dated
7th October 2009.
19. The Petitioners submit that the said Building is capable of
being regularized and as per the directions of the Hon’ble High Court
in Writ Petition No. 379 of 2003 the Municipal Commissioner has
granted stay to demolition and has also held that the building is
capable of being regularized by loading of TDR and fulfilling certain
requirements. The Petitioners had also obtained a certificate from an
Architect which clearly set out the FSI potential of the plot and the
balance F.S.I. available on the said Plot of Land. Hereto annexed and
marked EXHIBIT “T” is the copy of the Architect Certificate dated 1
October 2016.
GROUNDS
(k) The Respondent No. 2 failed to appreciate that the Learned
Municipal Commissioner had granted stay to any further action by the
PAGE NO. 30 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
MMC as the building is capable of being regularized and the
Architect had also submitted the TDR and DCR certificate, but the
certificate was found to be utilized already in the year 2014 and 2016
and hence the regularization could not take place.
(l) The Respondent No. 2 failed to appreciate that the Municipal
Commissioner has already granted stay of demolition and had held that
subject to compliance the construction is capable of being regularized.
(emphasis and underlining added)
41) Thus, even before this Court, while seeking deemed
conveyance, the Petitioner-society maintained a stand that the basement
premises were capable of being regularised. The Petition was decided on
25 November 2024, before which the society did not withdraw the above-
quoted averments in the Petition.
42) More recently in the year 2022 also, the deponent of the
Petition, Mr. Talat Sayyed, occupant of unauthorised flat on 6th floor
justified the possibility of regularization of basement by relying on
various regularization proposals in L.C. Suit No. 560 of 2022 filed by him
before the City Civil Court. Various documents relied upon by him in his
suit referred to regularization of not just 6th and 7th floor but also of the
basement premises. Thus, the deponent of the Affidavit, who himself
wanted to avail the benefit of regularisation, has now turned around and
filed the present petition questioning grant of membership to
Respondent No.1. This conduct on the part of deponent of the Petition
is required to be deprecated. Even conduct of the society as a whole in
filing the present petition questioning grant of membership to
Respondent No.1 is highly objectionable.
PAGE NO. 31 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
43) I am unable to accept the contention raised on behalf of the
Petitioner-society that its conduct is irrelevant for deciding the
entitlement of Respondent No.1 to secure membership in respect of the
basement. Petitioner’s conduct is very much of relevance in the light of
stand now taken that basement needs to be given a separate treatment
than that of 6th and 7th floor premises. Ordinarily, there cannot be
estoppel against law. However, the law does not prohibit regularisation
of basement. The basement would have already been regularised if the
requisite TDR was still available. [In Writ Petition No.93 of 2018,
Petitioner-society pleaded that DRC was found to be already utilised in
2014 and 2016 and hence the regularisation could not happen.]
Petitioner-society wanted Respondent No.1 alone to spend on TDR and
the moment it was realised that the DRC was utilised somewhere else,
the society decided to go against Respondent No.1. Petitioner’s conduct
is thus entirely relevant in the present case.
44) Thus, the case involves a peculiar circumstance where the
Petitioner-society itself had desired regularisation of the basement
premises in occupation of Respondent No.1 and impermissibility for it to
now resile from that position. The case also involves a peculiar
circumstance where the society has granted membership to occupants of
flats on 6th and 7th floors which are also unauthorised. An attempt
sought to be made by Mr. Khandeparkar to draw distinction between the
basement occupant and occupants of 6th and 7th floors does not appeal
to this Court. If basement is not covered by FSI so is the position in
respect of the flats on the 6th and 7th floors. Mere difference in the
arrangement by which rights in the basement are acquired by
PAGE NO. 32 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
Respondent No.1 as compared to the manner of acquisition of rights by
occupants of 6th and 7th floor of the building would not put those
occupants on higher pedestal as compared to the Petitioner. If Petitioner
is denied membership of the society, the membership will have to be
denied even to all the occupants of 6th and 7th floors. As observed above,
Respondent No.1 appears to be better situated where occupants of 6th
and 7th floors. This is in view of the fact that part of the basement
structure admeasuring 59.02 sq.m. has been sanctioned in the plan dated
16 October 1998 as storage space. As against this, nothing is sanctioned
qua the flats on the 6th and 7th floors. The argument that provision for
storage on the basement does not involve use of FSI does not cut any ice.
As of now there is no sanctioned BUA/FSI for construction of 6th and 7th
floors of the building. Therefore, going by the standard of non-
consumption of FSI, the flats on 6th and 7th floors need to be
demolished and membership in respect thereof needs to be denied to the
occupants of those flats.
45) In view of the above discussion, I am of the view that there
is some sanction to the part of the premises in the basement in the plan
dated 16 October 1998 and grant of membership to Respondent No. 1
qua the sanctioned part of the basement cannot really be found fault
with. To this extent, the order passed by the Deputy Registrar deserves
to be upheld. Grant of membership to Respondent No.1 is not to
encourage sale of common amenities by Developers. In Dheeraj Dreams
Building No.1 CHS Ltd. vs. Divisional Joint Registrar, Co-operative
Societies24, this Court has held that cooperative society can refuse
24
2026:BHC-OS:7221
PAGE NO. 33 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
membership to a buyer if the developer sells refugee are as a residential
flat. The judgment is delivered in the context of Section 154B-5 of the
MCS Act. Mr. Khandeparkar has also strenuously relied on provisions of
Section 154B-5, which provides thus:
154B-5. Limit on Membership.—
A housing society shall not admit to its Membership persons exceeding
the number of flats or plots, as the case may be, available for allotment in that
co-operative housing society :
Provided that, a plot owners co-operative housing society may admit to
its Membership an organization (co-operative housing society, company,
association, etc.) of flat purchasers, in case the plot owner had constructed and
sold flats as per prevailing rules, in place of original plot owner Member.
Going strictly by provisions of Section 154B-5 of the Act, no buyer of
premises which are not a ‘flat’ within the meaning of Section 154B-1(13)
of the Act can become member of the society. Section 154B-5 is inserted
by amendment of 2019 to ensure that persons claiming rights in respect
of premises in the building which do not qualify as a ‘flat’ are not granted
membership. The provision is aimed at discouraging the developers from
selling commmon amenities in a building. In the present case, however,
applicability of provisions of Section 154B-5 becomes questionable since
the provision is incorporated on 9 March 2019, whereas Respondent No.1
applied for and was intitally granted membership in the year 2009. Also,
under Section 154B-1(13) of the Act, ‘godown’ also can be treated as a
‘flat’ so long the same is sanctioned by the planning authority [SEE:
Ashwini Heights (supra)]. As observed above, the basement premises
were on the verge of getting sanctioned as a DPU. Basement area
admeasuring 59.02 sq.m. is snctioned by the planning authority as
storage space, which is akin to a godown. Therefore, in the peculiar facts
PAGE NO. 34 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
and circumstances of this case, Respondent No.1 is entitled to
membership qua the sanctioned portion of the basement.
46) Reliance by Mr. Khandeparkar on the judgment of this Court
in Dr. Vasant P. Jain is inapposite, which involved the issue of grant of
membership in respect of a garage. The present case does not involve
occupation of a garage. Also, in a given circumstance, this Court directed
grant of membership even in respect of garage when the same was found
to be self-contained part of the immovable property of the society in
Mistry Park CHSL. Since the case does not involve occupation of garage
by Respondent No. 1 , it is not necessary to delve deeper into that aspect.
Reliance by Mr. Khandeparkar on order passed by this Court in Amanul
Ansari is again inapposite. As held by this Court in Ashwini Heights, it is
possible in a given case to grant membership if the premises in the
basement floor are found to have been sanctioned by the Planning
Authority.
47) In somewhat similar circumstances, in Kamla Spaces, this
Court upheld grant of membership during pendency of regularization
process by holding in para-15 of the judgment as under:
15) So far as the issue of non-registration of agreements in respect of Units,
No.03, 04 and 09 involved in Writ Petition (Lodg.) No. 5243 of 2024 is
concerned, there is no denial to the fact that agreements have been executed
by the Developer in respect of the said three units. The agreements were
submitted for adjudication of stamp duty and the unit purchasers have paid
stamp duty on such agreements. Whether absence of regularisation would
result in denial of title to the said unit purchasers in respect of Unit Nos.03, 04
and 09 is the issue which need not be decided by the Registrar while deciding
application under Section 23 of the Act of 1960. As of now, the concerned unit
purchasers are armed with agreements which are duly stamped and the same
PAGE NO. 35 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
are presented before the Society for their admission as members. In my view,
therefore the Registrar need not undertake a detailed enquiry into the validity
of acquisition of title of unit purchasers in respect of unit Nos.03, 04 and 09
while deciding application under Section 23 of the Act of 1960. In fact, under
Bye-law No. 19(a) (vi) of the Model Bye-laws applicable to Tenant Co-
partnership Cooperative Housing Society, what is required to be submitted by a
proposed member is the following:
(vi) he has sent, along with the application for membership of the
society, a certified copy of the agreement, duly stamped entered into by
him with the Promoter (Builder) or transferor under Section 4 of the
Ownership Flats Act;
This takes care of objection about non-registration of agreements in respect of
Unit Nos. 03,04 and 09.
48) In the present case, this Court has directed grant of deemed
conveyance of the land and building in favour of the Petitioner-society
by its judgment and order dated 25 November 2024. The grant of
deemed conveyance is essentially to ensure that the developer does not
take benefit of his own wrong. He has constructed the building by
violating the planning norms. Grant of deemed conveyance ensures a
right in favour of the flat purchasers to demolish the building and to
reconstruct the same. Accordingly, the society is apparently taking steps
for demolition of the building and for its reconstruction. Therefore, now
there is no question of regularisation of either the basement or of 6th or
7th floors. The entire building would now get reconstructed and all
members would secure benefits of redevelopment, irrespective of
whether their old/existing premises are authorised or otherwise. If this is
the position, there appears to be no reason to draw distinction between
Respondent No.1 and occupants of flats on 6th and 7th floors. The
occupants of flats on 6th and 7th floors would receive benefit of
redevelopment process even though their flats are also without sanction
PAGE NO. 36 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
and regularization proposal qua their flats has not fructified. The same
benefit needs to be extended to Respondent No.1 as well.
49) Both the sides have accused each other of grossly
suppressing facts. Petitioner has accused Respondent No.1 of
suppressing letter dated 9.9.2002 issued by Respondent No.1 to MCGM
admitting allotment of basement by developer in lieu of its claims
against the developer. Petitioner has also accused Respondent No.1 of
suppressing the factum of TDR being sold by it. However, it is seen that
the TDR was not acquired in the name of Respondent No.1 who may
have paid for purchase of the same. Though the TDR appears to have
been sold, there is nothing on record to infer that the sale was caused by
Respondent No.1 itself. Even if it is assumed arguendo that Respondent
No.1 has sold the TDR, the same would not be a reason to draw any
distinction between rights of basement occupier vis-a-vis rights of
occupants of flats of 6th and 7th floors. Allegation of suppression in this
regard is therefore without any merit. Petitioner has also sought to level
allegations of suppression against Respondent No.1 qua access to the
basement and incorrect representation about its nature. This again is
not a material factor for decision of the issue of membership. It is an
admitted position that the developer failed to construct ramp/staircase
to access the basement. The society had expressed willingness for
construction of staircase to the basement under the regularization
proposal. Therefore, the allegation of suppression against Respondent
No.1 in this regard does not merit any consideration.
PAGE NO. 37 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
50) Respondent No.1 has also alleged suppression against the
Petitioner particularly with regard to the pleas raised before the City
Civil Court and in this Court in different proceedings justifying
regularization proposal. I have already dealt with the stand taken by the
society and by deponent of the Petitioner before this Court and before
the City Civil Court respectively. I have also deprecated the Petitioner
and to deponent of the petition in taking stands suitable to their interest
in different proceedings. Beyond this, I do not desire to take allegation
of suppression raised by Respondent No.1 any further. It is therefore not
necessary to burden this judgment by discussing ratio of judgments in K.
Jayaram, Ramjas Foundation and Elder Projects (supra).
51) Having held that Respondent No.1 is entitled to
membership, in my view, it is necessary to clarify the exact premises in
respect of which membership needs to be granted to Respondent No.1. It
appears that basement was proposed to be constructed both for parking
as well as for storage space. Thus, part of the basement appears to be a
‘common amenity’. Though the society had shown willingness to
regularise the entire basement admeasuring 2700 sq.m. and though the
plans for regularization were at an advanced stage, ultimately the
regularization proposal has not fructified. The society accuses
Respondent No.1 of sabotaging the regularisation process on account of
sale of the TDR. This allegation is disputed by Respondent No.1, who
submits that the TDR was purchased in the name of the developer and it
is unknown as to how the developer dealt with the same. As observed
above, premises admeasuring 59.02 sq.m. are already approved in the
sanctioned plan dated 16 October 1998 as ‘storage space’. Thus, there is
PAGE NO. 38 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
some sanction to the premises admeasuring 59.02 sq.m. It also appears
to be a fact that the total constructed basement admeasures only 230.30
sq.m. equivalent to 2478.02 sq. ft. Thus, in reality basement admeasuring
2700 sq.m. does not even exist. Therefore, there is no question of
granting membership to Respondent No.1 qua basement admeasuring
2700 sq.ft. Considering these peculiar circumstances, in my view, grant of
membership to Respondent No.1 is required to be restricted to premises
admeasuring 59.02 sq.m. which is equivalent to about 637 sq.ft.
52) In view of the above discussion, I do not find any valid
ground to interfere in the order of the Deputy Registrar granting
membership to Respondent No.1 in respect of basement premises. It
only needs to be clarified that the grant of membership shall be
restricted only to premises admeasuring 59.02 sq.m. To avoid any further
disputes between the parties regarding grant of benefit of redevelopment
process, the premises admeasuring 59.02 sq.m. need to be treated as
residential one. In the redevelopment process, Petitioner-society shall
consider premises admeasuring 59.02 sq.m. in the basement as
residential premises for the purpose of grant of benefits of
redevelopment process. This is because the society itself had shown
willingness to sanction the entire basement premises for commercial IT
user. Also, there is substantial reduction of area of basement for the
Respondent No. 1. From the claim of 2700 sq. ft, it is reduced to 637 sq.ft.
The reduction in the area can be mitigated to some extent by directing
consideration of the premises as residential one. It is not known whether
the new building would have any commercial space for use as Data
Processing Unit. Therefore, to avoid further disputes between the parties,
PAGE NO. 39 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
it is necessary that the 59.02 sq.m. premises of Respondent No.1 are
considered as residential premises for grant of redevelopment benefits.
The society cannot now oppose consideration of premises admeasuring
59.02 sq.m. as residential premises only for the purpose of
redevelopment benefits considering the fact that it was once willing to
regularise the entire basement premises as commercial IT user. Thus,
recognition of premises admeasuring 59.02 sq.m. as residential premises
would ensure that the Respondent No. 1 would receive a residential flat
in the new building with additional area sanctionable under
redevelopment at par with other members and this would balance the
equities between the parties.
53) Before parting, it must be observed that this Court has not
appreciated the actions of the Petitioner-society and particularly of
deponent of the Petition, Mr. Talat Syed who is the secretary of the
society in filing the present petition. The deponent is himself an
occupier of unauthorised flat on the 6th floor of the building. He wants
to selectively reap the benefits of redevelopment process while denying
similar benefit to Respondent No.1. The deponent wanted to have his
flat regularised by making Respondent No.1 spend on purchase of TDR.
He selectively relies on regularization proposal to save his flat from
being demolished, which proposal envisaged regularisation of basement
as well. However, when things come to grant of benefit of redevelopment,
the deponent changes the stance and seeks to create a distinction
between himself and Respondent No.1. Such conduct on the part of
deponent of the Petitioner-society not only deserves serious
deprecation, but also imposition of costs. In ordinary circumstances, this
PAGE NO. 40 of 41
07 OCTOBER 2026
Neeta Sawant WP 10241 of 2026
Court would have proceeded to impose costs on the deponent of the
Petition, Mr. Talat Syed. However, considering the facts and
circumstances of the present case and because the deponent may have
acted on authorisation granted to him by the general body of the society,
this Court is refraining from imposing costs on him.
54) I accordingly proceed to pass the following order:
(i) Order passed by the Deputy Registrar dated 7 May 2026
granting membership to Respondent No.1 in respect of the
basement premises is confirmed.
(ii) Grant of membership to Respondent No.1 shall however be
confined to the premises admeasuring 59.02 sq.m., which shall
be considered as residential premises for the purpose of grant
of redevelopment benefits.
55) Subject to the above clarification, the Writ Petition is
dismissed. There shall be no order as to costs.
[SANDEEP V. MARNE , J.]
56) After the judgment is pronounced, the learned counsel
appearing for the Petitioner seeks stay of the judgment for a period of 8
weeks. The request is opposed by the learned counsel appearing for the
Respondent. Considering the nature of findings recorded in the
judgment, the request for stay is rejected.
Digitally
[SANDEEP V. MARNE , J.]
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
PAGE NO. 41 of 41
2026.10.07
18:34:12 07 OCTOBER 2026
+0530
Checking your session…
Lawyer court records for this case
Associated through the court’s case reference.