Bombay High Court Upholds Society Membership for Godown Purchasers; Holds Separately Sanctioned Godown Qualifies as Independent ‘Flat’ Despite Common Agreement With Shop Owner
Bombay High Court Allows Independent Membership for Basement Godown; Holds Wider Definition of ‘Flat’ Includes Godown When Separately Recognised in Approved Sanctioned Plan
Facts
The petitioner, Ashwini Heights Cooperative Housing Society Ltd., challenged the order dated 12 May 2022 passed by the Divisional Joint Registrar, Cooperative Societies, Pune, which directed the Society to admit Respondent Nos. 1 and 2, Jyoti Nitin Lunia and Nitin Balchandji Lunia, as members in respect of a basement godown purchased by them.
The Society’s building had been developed by M/s Ashwini Constructions. Before formation of the Society, the developer sold Shop No. 8 and a basement godown to Prakash Balkrishna Daphalapurkar through a single registered agreement. The Society subsequently issued one share certificate to Daphalapurkar covering the shop and godown.
Daphalapurkar later sold only the godown to Ramchandra and Savita Bandal by an Assignment Deed dated 18 August 2005, without obtaining the Society’s NOC. The Bandals were therefore not admitted as members.
By another Assignment/Transfer Deed dated 1 April 2010, the Bandals transferred the godown to the Lunias, again without obtaining the Society’s NOC. The Lunias thereafter applied for membership.
The Society refused membership principally because Daphalapurkar had not surrendered his existing membership/share certificate and because the transfers had occurred without the Society’s consent.
The Deputy Registrar rejected the Lunias’ application under Section 23(2) of the Maharashtra Co-operative Societies Act, 1960. However, in revision, the Divisional Joint Registrar reversed that decision and directed the Society to admit them as members in respect of the godown.
The Society therefore approached the Bombay High Court.
Issues
The principal issues were:
- Whether the basement godown independently qualified as a “Flat” under Section 154B-1(13) of the Maharashtra Co-operative Societies Act, 1960.
- Whether Shop No. 8 and the basement godown constituted a single composite unit merely because the original purchaser acquired both through one agreement and received one share certificate.
- Whether a person can obtain separate society membership for a godown unless that godown is independently recognised in the sanctioned building plan.
- Whether granting separate membership would amount to an impermissible artificial bifurcation of an existing flat.
- Whether the absence of the Society’s NOC for the successive assignments disentitled the subsequent purchasers from membership.
- Whether the Divisional Joint Registrar could consider the separate occupation certificate and revised commencement certificate relating to the godown.
Petitioner’s Arguments
The Society argued that the godown did not qualify as an independent “flat” under Section 154B-1(13).
According to it, Daphalapurkar had purchased Shop No. 8 and the basement godown as a composite unit, and the sanctioned plan also allegedly treated the two structures together. The Society further claimed that the godown had no independent access and could only be accessed through Shop No. 8.
The Society relied upon Section 154B-5, which limits the number of society members to the number of flats available for allotment.
Its submission was that membership could not be created for a premises which was not independently approved in the sanctioned plan, as that would effectively increase the number of memberships beyond the legally sanctioned flats.
It relied upon Usha Kiran Cooperative Housing Society and Uday Dalal for the proposition that the sanctioned plan is decisive in determining whether premises qualify for independent membership.
The Society also challenged the personal occupation certificate dated 10 March 2021 and revised commencement certificate dated 6 July 2021, arguing that such documents were doubtful and that alterations to sanctioned plans could not be made without its consent.
Finally, it maintained that both transfers of the godown were illegal because the Society’s NOC had not been obtained.
Respondents’ Arguments
The Lunias contended that the godown was separately sanctioned and independently assessed for municipal taxes.
They relied upon the expanded statutory definition of “Flat” under Section 154B-1(13), which expressly includes a “godown”.
According to them, merely because Daphalapurkar had originally purchased the shop and godown through one agreement did not convert two independently sanctioned structures into a single unit.
They further disputed the Society’s contention that access to the godown was only through Shop No. 8 and relied upon the sanctioned plan showing access through the common staircase.
The respondents therefore maintained that the godown satisfied both requirements:
- it fell within the statutory definition of “flat”; and
- it was independently recognised in the sanctioned development plan.
Analysis of the Law
Meaning of “Flat” Under Section 154B-1(13)
The Court first examined the statutory definition.
Section 154B-1(13) defines “flat” broadly to include a:
block, chamber, dwelling unit, apartment, office, showroom, shop, godown, premises, suite, tenement or unit, provided it is a separate and self-contained part of immovable property intended for residential, commercial or other recognised use.
Justice Sandeep V. Marne therefore held that, going strictly by the statutory definition, a godown is capable of being treated as a “flat.”
However, this did not automatically entitle every godown owner to membership.
Sanctioned Plan Is the Controlling Requirement
The Court held that the wider definition of “flat” must be read with Sections 154B-2 and 154B-5.
Under Section 154B-5, a housing society cannot admit members exceeding the number of flats or plots available for allotment.
Accordingly, the relevant “flats” are those recognised in the sanctioned development plan.
The Court explained that a parking space, staircase, veranda or other area not independently sanctioned cannot become a separate flat merely through a private transaction.
Similarly, an existing single flat cannot simply be divided privately to create two memberships. If a flat is bifurcated, such bifurcation must receive approval from the competent planning authority.
Thus, the legal test was not merely whether the premises could physically function independently, but whether the planning authority had sanctioned them as independent premises.
Shop and Godown Were Separately Sanctioned
The original sanctioned plan dated 25 June 1993 became decisive.
The ground-floor plan separately showed Shop No. 8, while the basement plan independently showed a godown beneath it for storage of non-combustible material.
Importantly, the sanctioned plan showed no internal staircase connecting Shop No. 8 to the godown. Instead, the basement was accessible through adjoining common staircases.
The Court therefore concluded that the sanctioned plan itself established that the godown had been separately sanctioned from Shop No. 8.
Absence of Separate Number Was Irrelevant
The Society argued that while Shop No. 8 had been specifically numbered, the godown had no corresponding independent number.
The Court rejected this argument.
Another godown situated below Shop No. 1 was similarly unnumbered in the sanctioned plan, yet the Society admitted that the shop and godown had different owners and separate memberships.
The Court found no valid reason why the godown beneath Shop No. 8 should receive different treatment.
One Agreement Does Not Merge Two Independent Premises
The Court identified the source of the confusion: Daphalapurkar had originally purchased both Shop No. 8 and the godown through one common agreement.
Because the same person owned both structures, the Society had issued only one share certificate.
But this administrative arrangement could not alter the legal status of the premises under the sanctioned plan.
The Court held:
“This does not mean that there was any restriction for Daphalapurkar from segregating his ownership qua basement godown and to sell it to an outsider.”
Indeed, the Court observed that the Society ordinarily ought to have issued two separate share certificates for the shop and godown, as it had done with Shop No. 1 and the godown beneath it.
This Was Not Artificial Bifurcation
The Court distinguished a situation where one sanctioned flat is subsequently divided privately into two units.
Here, there was no artificial splitting of a single sanctioned premises.
Shop No. 8 and the godown:
- were situated on different floors;
- were independently shown in the sanctioned plan; and
- constituted separately sanctioned premises.
Thus, granting two memberships did not artificially increase the number of flats recognised by the planning authority.
Precedent Analysis
1. Uday Dalal and Others v. Divisional Joint Registrar, 2025 SCC OnLine Bom 5202
This was the principal precedent applied by the Court.
Uday Dalal held that Section 23’s right of open membership applies only to persons duly qualified under the Act and bye-laws.
In the context of Chapter XIII-B, qualification depends fundamentally upon whether the applicant owns a flat recognised in the sanctioned plan. Mere physical possession or a private document cannot create an independently recognised flat.
The judgment explained that the sanctioned plan acts as the legal “filter that converts physical structures into legally recognised flats.”
It further held that Section 154B-5 prevents a society from admitting more members than there are sanctioned flats. No sale deed, gift deed, family arrangement, inspection report or general body resolution can enlarge that number; only a sanctioned modification by the planning authority can do so.
The Court distinguished Uday Dalal on facts.
There, a servant quarter attached to a flat was sought to be converted into an independent unit. Here, the shop and godown were already independently sanctioned in the original plan.
2. Usha Kiran Cooperative Housing Society & Others v. State of Maharashtra & Others
The Society relied upon this Bombay High Court judgment to argue that membership must correspond with the sanctioned plan and that additional premises cannot be recognised through unauthorised alterations.
The Court accepted the general importance of the sanctioned plan but found that this principle actually supported the respondents because the original sanctioned plan itself independently recognised the godown.
Court’s Reasoning
The Court’s reasoning ultimately turned on the original sanctioned plan.
The statutory definition of “flat” expressly includes a godown. But for society membership, the premises must additionally be independently recognised in the sanctioned development permission.
That requirement was satisfied here.
The original 1993 sanctioned plan showed the basement godown separately from Shop No. 8 and provided access through a common staircase.
The subsequent occupation certificate dated 10 March 2021 and revised commencement certificate dated 6 July 2021 further reinforced the position by identifying the premises as Godown No. 1.
However, the Court made it clear that even if the subsequent occupation certificate were ignored, the original development permission was independently sufficient to establish the godown’s separate sanctioned status.
The Court also noted that the Society’s original objections to membership had centred on the absence of its consent/NOC, rather than any contention that the godown and shop constituted one indivisible premises. That composite-unit argument emerged substantially later.
Ultimately, the Court held that the godown:
- qualified as a “flat” under Section 154B-1(13);
- was independently sanctioned in the development permission;
- was not an artificial bifurcation of Shop No. 8; and
- could therefore support an independent society membership.
Conclusion
The Bombay High Court dismissed the Society’s writ petition and refused to interfere with the Divisional Joint Registrar’s order.
The Court held that Jyoti Nitin Lunia and Nitin Balchandji Lunia were entitled to membership of Ashwini Heights Cooperative Housing Society in respect of the basement godown because the premises qualified as a “flat” and were independently recognised in the approved sanctioned plan.
Interestingly, the Court also observed that separate memberships for Shop No. 8 and the godown would financially benefit the Society because it could collect two sets of service charges instead of one.
The judgment therefore establishes that a godown can support independent membership in a cooperative housing society when it falls within the statutory definition of “flat” and is independently recognised in the sanctioned plan; common ownership, a common purchase agreement or an earlier single share certificate cannot override the legal status created by the sanctioned development permission.
Case Details
Case: Ashwini Heights Cooperative Housing Society Ltd. v. Jyoti Nitin Lunia & Others
Court: High Court of Judicature at Bombay, Civil Appellate Jurisdiction
Case Number: Writ Petition No. 2241 of 2024
Judge: Justice Sandeep V. Marne
Date: 20 August 2026; Reserved on 14 August 2026
Result: Writ petition dismissed; Divisional Joint Registrar’s order upheld; purchasers held entitled to independent Society membership for the basement godown as it qualifies as a “flat” and is separately recognised in the sanctioned plan.
