1 of 5 907-wp-1057-23 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 1057 OF 2023 A.L.J. Residency Co-operative Housing Society Ltd. ..Petitioner Versus M/s. Gehlot Development & Ors. ..Respondents WITH INTERIM APPLICATION NO. 3369 OF 2023 IN CIVIL WRIT PETITION NO. 1057 OF 2023 Gehlot Development ..Applicants IN THE MATTER BETWEEN A.L.J. Residency Co-operative Housing Society Ltd. ..Petitioner Versus M/S. Gehlot Development & Ors. ..Respondents __________ Mr. Omkar Nagwekar i/b. Pradeep D. Dalvi for Petitioner. Mr. Chirag Mody a/w. Ronish Mehta i/b. Vinod Mistry & Co. for Respondent Nos.1 to 3 in writ petition and for Applicants in I.A. Smt. V. S. Nimbalkar, AGP for State/ Respondent Nos.4 to 6. __________ CORAM : AMIT BORKAR, J. DATE : 14 NOVEMBER 2025 PC : 1. This petition challenges the judgment and order dated 20 July 2022 in Revision Application No. 93 of 2018 passed by the Divisional Joint Registrar, Co-operative Societies. The Revisional Gokhale VINOD BHASKAR GOKHALE Digitally signed by VINOD BHASKAR GOKHALE Date: 2025.11.17 10:51:05 +0530 2 of 5 907-wp-1057-23 Authority confirmed the order of the Deputy Registrar passed under Section 22(2) of the Maharashtra Co-operative Societies Act. 2. Respondent No. 1 filed an application under Section 22(2) of the Maharashtra Co-operative Societies Act seeking membership in the petitioner society. Respondent No. 1 claimed that it had purchased the basement portion attached to the petitioner’s flat through a registered sale deed dated 2 August 2004. Respondent No. 1 submitted the application with the required charges. The society did not communicate its decision. Respondent No. 1 then filed an appeal under Section 22(2). The Appellate Authority directed the society to grant membership. The Revisional Authority upheld this direction. The petitioner society has, therefore, approached this Court. 3. Learned counsel for the petitioner submitted that the property claimed by Respondent No. 1 is not a flat within the meaning of the judgment of the Supreme Court in Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd reported in (2010) 9 SCC 536. He relied upon Sections 3(1), 2(m), 2(n) and 4(1)(a) of the Maharashtra Ownership Flats Act. He argued that the basement forms part of the common areas and facilities. Such area cannot be sold. It cannot be treated as a flat under Section 2(a-1) of MOFA. He submitted that a person who has not purchased a flat cannot be granted membership. According to him, recognizing such a purchaser as a member would defeat 3 of 5 907-wp-1057-23 the statutory scheme. 4. Learned counsel for Respondent No. 1 supported the impugned orders. He submitted that the society and the Registrar cannot travel beyond the contents of the registered document. He relied on Videocon Appliances Ltd. v. Maker Chambers V. Premises Co-op. Society Ltd, reported in (2006) 2 Mh.L.J. 388. He argued that membership cannot be refused on the ground that the construction is unauthorized or contrary to Section 7 of MOFA. 5. On examining the orders of the authorities, it becomes clear that a material issue raised by the petitioner has not been addressed. The question placed before the authorities was not a mere technical plea. It concerns a foundational fact. The nature of the premises purchased by Respondent No. 1 lies at the heart of the dispute. Such a question requires findings from the authority competent under the Act. A writ court does not undertake this exercise for the first time. The issue is whether the premises claimed by Respondent No. 1 can be regarded as a flat within the meaning of Section 2(a-1) of the Maharashtra Ownership Flats Act and Section 154B-1-(13) of the MCS Act, 1960. The further issue is whether the society is bound to grant membership in respect of an area that is shown as part of common amenities and facilities in the sanctioned plan. These questions go to the root of the rights claimed by Respondent No. 1 and must be adjudicated on the factual and legal material by the statutory authority. 4 of 5 907-wp-1057-23 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 5 of 5 907-wp-1057-23 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. 11. The petition stands disposed of in the above terms. 12. The interim application does not survive and it is disposed of. (AMIT BORKAR, J.)