The Bombay High Court has upheld the membership of Gehlot Development Services Pvt. Ltd. in ALJ Residency Co-operative Housing Society Ltd in Bandra, while limiting its rights to 59.02 sq m of basement space approved for storage. The court criticised the society for adopting an inconsistent position on membership rights for different occupants.
In a judgment delivered on October 7, Justice Sandeep Marne dismissed the society’s challenge to a Deputy Registrar’s order granting membership to the developer. The society had argued that the basement was a common facility and could not be recognised as an independent premises for membership purposes.
The court, however, said the classification of a basement must be determined by examining the sanctioned building plan and the circumstances of each case. “In every case, the basement cannot be a common amenity.”
The sanctioned plan for the Pali Mala Road property showed a basement measuring 230.30 sq m, of which 59.02 sq m had been approved for storage, while the remaining area was earmarked for parking.
The court also considered the society’s earlier conduct. It had accepted the developer’s membership in 2009 and issued a share certificate, but challenged the decision only in 2018. The society had also supported attempts to regularise the basement and additional floors, including issuing a no-objection certificate for loading transferable development rights (TDR).
Justice Marne highlighted that occupants of unauthorised sixth and seventh floors had been granted membership, even as the society opposed the developer’s claim. “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,” Justice Marne observed.
The court further questioned the society secretary’s role in filing the petition, noting that he himself occupied a flat on an unauthorised sixth floor.
Clarifying the scope of its ruling, the High Court stated, “Grant of membership to Respondent No.1 [Gehlot Development Services] is not to encourage sale of common amenities by Developers,”
The court also ruled that a 2019 amendment restricting membership for premises that are neither flats nor common amenities could not apply retrospectively to the membership granted in 2009.
While rejecting the society’s oral request for a stay, the court directed that the approved 59.02 sq m area be treated as residential space when calculating redevelopment benefits.
Source: The Free Press Journal
