Megha 910_wp_2241_2024_fc.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.2241 OF 2024

Ashwini Heights Cooperative Housing

Society Ltd. ...Petitioner

V/s.

1.Jyoti Nitin Lunia

2.Nitin Balchandji Lunia

3.Deputy Registrar, Co-operative

Societies, Pune City (2)

4.Divisional Joint Registrar, Co-

operative Societies, Pune

Division, Pune. ...Respondents

________________

Mr. Akshay Kandarkar with Mr. Vignesh Ashokan i/b. Mr. Sachin H.

Deokar for the Petitioner.

Mr. Rahul Soman with Mr. Suyash M. More i/b. Mr. Vidyesh Dhamdhere

for Respondent nos.1 and 2.

Mr. Y.D. Patil, AGP for Respondent-State.

________________

CORAM: SANDEEP V. MARNE, J.

Judgment reserved on: 14 AUGUST 2026.

Judgment pronounced on: 20 AUGUST 2026.

JUDGMENT:

1) By this Petition, Petitioner-Society has challenged the Order dated

12 May 2022 passed by the Divisional Joint Registrar, Cooperative

Societies, Pune Division, Pune (Divisional Joint Registrar), allowing

Revision Application No. 126 of 2020 and setting aside order dated 6

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March 2019 passed by the Deputy Registrar, Co-operative Societies, Pune

City-2, Pune (Deputy Registrar). By his order dated 6 March 2019, the

Deputy Registrar had rejected the application preferred by Respondent

No.1 and 2 under Section 23(2) of the Maharashtra Co-operative

Societies Act, 1960 (MCS Act) for admitting them as members of the

Petitioner-Society. Thus, the effect of the impugned order of the

Divisional Joint Registrar is that Respondent Nos.1 and 2 are directed to

be admitted as members of the Petitioner-Society qua the godown

purchased by them.

2)The Petitioner is a Cooperative Housing Society registered under

the provisions of the MCS Act. Building of the Petitioner-Society was

developed by M/s Ashwini Constructions. Before formation of the

Petitioner-Society, the developer sold shop No.8 and godown situated in

the basement of the building to Mr. Prakash Balkrishna Daphalapurkar

(Daphalapurkar) by way of single registered agreement. After formation

of the Society, the Petitioner-Society issued share certificate No.45 in the

name of Daphalapurkar in respect of shop No.8 and the godown beneath

it. Daphalapurkar sold only the godown to Mr. Ramchandra Maruti

Bandal and Savita Bandal (Bandals) by Assignment Deed dated 18 August

2005 without informing the Petitioner-Society and without securing it’s

No Objection Certificate. Therefore Bandals were not admitted as

member of the Petitioner-Society. By Deed of Assignment /Transfer Deed

dated 1 April 2010, Bandals sold the godown to Respondent Nos.1 and 2

again without securing NOC of the Society. Respondent Nos.1 and 2

applied to the Society for securing membership on 30 September 2013.

The Society requested for certain documents vide letter dated 8 October

2013. Respondent Nos.1 and 2 again made application dated 4 February

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2017 for grant of membership. Thereafter Respondent Nos.1 and 2 sent

Advocate’s notice dated 4 January 2018 to the Petitioner-Society for

grant of membership. The Society responded through its Advocate’s

reply dated 17 February 2018 informing that Daphalapurkar has not

surrendered his membership/ share certificate and that therefore

Respondent Nos.1 and 2 could not be admitted as members.

3)Respondent Nos.1 and 2 filed Appeal under Section 23(2) of the

MCS Act before the Deputy Registrar seeking membership of the Society

qua godown. The Appeal was resisted by the Petitioner-Society by filing

its reply. The Deputy Registrar rejected the Appeal by order dated 6

March 2019 holding that purchase of godown was made by Bandals

without Society’s consent and similarly even purchase of godown by

Respondent Nos.1 and 2 was without consent of the Society. Aggrieved

by the order dated 6 March 2019 passed by the Deputy Registrar,

Respondent Nos.1 and 2 filed Revision Application No.126 of 2020 before

the Divisional Joint Registrar. By order dated 12 May 2022, the Divisional

Joint Registrar has allowed the Revision preferred by Respondent Nos.1

and 2 and has set aside order of the Deputy Registrar dated 6 March

2019. The Society is directed to grant membership to Respondent Nos.1

and 2 qua the godown. The Petitioner-Society has filed the present

Petition challenging the order of the Divisional Joint Registrar dated 12

May 2022. By order dated 21 February 2024, this Court has stayed the

order of the Divisional Joint Registrar. Respondent Nos.1 and 2 have

appeared in the Petition.

4)Mr. Kandarkar, the learned counsel appearing for the Petitioner-

Society submits that the Divisional Joint Registrar has grossly erred in

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allowing the Revision preferred by Respondent Nos.1 and 2. That what is

purchased by Respondent Nos.1 and 2 does not qualify as a ‘flat’ within

the meaning of Section 154B-1(13) of the MCS Act. That godown is a part

and parcel of shop No.8. That Daphalapurkar had purchased shop No.8

and godown as a composite unit. That in the sanctioned plan also, both

the structures are indicated as a composite unit. That there is no

independent access for the godown and the that the godown can be

accessed only through the shop.

5)Mr. Kandarkar further submits that under the statutory scheme of

MCS Act, membership cannot be granted unless the flat is approved in

the sanctioned plan. That under Section 154B-5 of the MCS Act, there is

a statutory restriction to number of membership, which could not exceed

the sanctioned plan. He submits that Respondent Nos.1 and 2 have

procured illegal documents in the form of personal occupation

certificate. That there is no provision for issuance of personal occupation

certificate. That in any case, changes to sanctioned plan cannot be

effected without consent of the Society. That the so called occupation

certificate procured by Respondent Nos.1 and 2 are doubtful since

occupation certificate is shown to have been issued on 10 March 2021

whereas the revised commencement certificate is sought later on 6 July

2021. That it is impermissible to directly take into consideration the

material, which was never produced before the Deputy Registrar. In

support, he relies on judgment of this Court in Usha Kiran Cooperative

Housing Society & And Ors . V/s. The State of Maharashtra & Ors.

1

He

also relies on judgment of this Court in Uday Dalal and Others V/s.

Divisional Joint Registrar

2

in support of his contention that only the flat

1Writ Petition No.15438 of 2025, decided on 18 November 2025.

22025 SCC OnLine Bom 5202

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which is reflected in the sanctioned plan can be taken into consideration

for award of membership. He submits that the godown has not been

sanctioned independently in the sanctioned plan. That Daphalapurkar

still continues to be the member of the Society qua the entire structure.

He also invites attention of this Court to bye-law No.46 in support of his

contention that no additions or alterations in the plans or structures can

be made without the consent of the Society. He also submits that

transaction of Respondent Nos.1 and 2 is clearly illegal due to absence of

NOC from the Society. He accordingly prays for setting aside order of the

Divisional Joint Registrar.

6)Per contra, Mr. Soman, the learned counsel appearing for

Respondent Nos.1 and 2 opposes the Petition submitting that the

Divisional Joint Registrar has taken into consideration the occupation

certificate in respect of the godown thereby indicating that the godown

is sanctioned as a separate unit. That the godown is also separately

assessed to taxes. That under Section 154B-1(13) the definition of the

term ‘Flat’ has now been widened and even ‘godown’ is included in the

definition of the term ‘Flat’. That Daphalapurkar purchased the shop and

the godown and just because purchase was made by one document, the

same does not mean that there is a unified structure. That there is an

independent access to the godown. He submits that statutory scheme

relating to cooperative housing society is entirely different in relation to

acquisition of interest in the property under Section 154B-7 as compared

to Section 29 of the MCS Act. He also relies on judgment of this Court in

Uday Dalal (supra). He submits that in the original structure plan

godown was indicated as a separate structure. He therefore prays for

dismissal of the Petition.

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7)Rival contentions urged on behalf of the parties, now fall for my

consideration.

8)The case involves a unique conundrum where Daphalapurkar

purchased from the developer shop No.8 and the godown vide

Agreement dated 6 August 1994. The Agreement effects purchase of

following property:-

Shop No.8 on Ground Floor admeasuring about 17.84 sq.mtrs i.e.

192.0 sq.ft. of built-up area and godown in basement of about 25.27

sq.mtrs. i.e. 272.09 sq.ft. of built-up area.

9)Thus, by a common Agreement, Shop No.8 on the ground floor

admeasuring 192 sq.ft. and the Godown admeasuring 272.09 sq.ft. were

purchased by Daphalapurkar. It appears that since a single owner

purchased both the structures and since the Society believes that

godown is a part of shop No.8 it issued only share certificate in favour of

Daphalapurkar. Daphalapurkar retained shop No.8 but decided to sell

only the godown and accordingly executed a Deed of Assignment on 18

August 2005 with Bandals and thereby sold only the godown. In clause

12 of the Deed of the Assignment, Daphalapurkar gave an undertaking

as under:-

सदर गोडाउनमिळकत ज्या इमारतीचा भाग आहे त्या इमारतीमधील फ्लॅ ट धारकांची

सहकारी संस्था स्थापन झालेली असून सदर सोसाटीचे नाव अश्विनी हाईट्स सहकारी

गृहरचना संस्थामर्यादित

'

असे आहे

.

प्रस्तुतच्या तबदिलपत्रानंतरमी सदर संस्थेतील

सभासदत्वाचा राजीनामा देऊन सभासदत्व व शेअर्ससर्टिफिके ट तुमचे नावे हस्तांतरित

करून देईन

.

त्याबाबत टाळाटाळ करणार नाही

.

त्यासाठी लागणाऱ्या सर्वसह्या

,

संमत्यामी

विनामोबदला देण्याच्या आहेत

.

10)It is the contention of the Society that its consent was not secured

for execution of the transaction between Daphalapurkar and Bandals.

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Therefore, Bandals were never admitted as members of the Petitioner-

Society. By Deed of Assignment dated 1 April 2010, Bandals have sold

and transferred the godown to Respondent Nos.1 and 2. The Society

contends that even for this transaction, its consent was not obtained.

11)The Society initially did not grant membership to Respondent

Nos.1 and 2-Jyoti Nitin Lunia and Nitin Balchandji Lunia (Lunias) mainly

on the ground of non-procurement of its consent for the transaction. It

appears that the Society initially did not raise the objection of godown

being a part of shop No.8. When the application for membership was

made by Respondent Nos.1 and 2-Lunias on 30 September 2013, the

initial reaction of the Petitioner-Society was to merely demand copies of

the documents. When Respondent Nos.1 and 2 issued Advocate’s notice

dated 4 January 2018, Society’s Advocate responded on 17 February 2018

once again raising the issue of Daphalapurkar not securing permission of

the Society for the transaction. Response of the Society was as under:

सदर सोसायटीतमे

.

अश्विनी कन्स्ट्रक्शन्स यांनी दुकान व गोडाऊन क्र

.

८ हीमिळकत

श्री.

प्रकाश बाळकृष्ण डफळापूरकर यांनाविक्री करण्यात आलेली असून श्री

. प्रकाश

बाळकृष्ण डफळापूरकर यांचे नावे सोसायटीने भाग खाते न

.

४५ हादिनांक

१०/६/

२०१० रोजीमॅनेजिंग कमिटीच्या ठरावानुसार समंत करण्यात आलेला असून

आजतागायत तो त्यांचेच नावे आहे

.

परंतु श्री

.

प्रकाश बाळकृष्ण डफळापूरकर यांनी

सोसायटीकडून कोणत्याही प्रकारची नाहरकत प्रमाणपत्र तसेच अर्जहा के लेंला नव्हता

व नाही

.

त्यामुळे सदर भाग दाखला खाते न

.

४५ हा इतर कोणाचेही नावे वर्गके लेला

नाही.

अथवा त्यांनी सभासदत्वाचा राजीनामा हीदिलेला नाही

.

सबब त्यांचा भाग खाते

न.

४५ हा इतर कोणासही म्हणजेच तुमचे अशिलांचे नावे करण्याचा संबंधच येत नाही

.

12)Even when application was made before the Deputy Registrar, the

Petitioner-Society did not raise the issue of shop and godown being

composite property and opposed the application only on the ground of

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non-securing of its permission. The Society's response to the said

application before the Deputy Registrar reads thus:-

(२)

प्रस्तुत जाबदेणार यांचे पुढे असे म्हणणे आहेकि

,

सदरमिळकतमे

. अ

श्विनी

कन्स्ट्रक्शन्स यांनी दुकान व गोडाऊन क्र

.

८ हीमिळकत श्री

.

प्रकाश बाळकृष्ण

डफळापूरकर यांनाविक्री करण्यात आलेली असून श्री

.

प्रकाश बाळकृष्ण

डफळापूरकर यांचें नावे सोसायटीने भाग खाते न

.

४५ हादिनांक १०

/६/२०१०

रोजीमॅनेजिंग कमिटीच्या ठरावानुसार समंत करण्यात आलेला असून आजतागायत

तो त्यांचेच नावे आहे

.

परंतु श्री

.

प्रकाश बाळकृष्ण डफळापूरकर यांनी

सोसायटीकडून कोणत्याही प्रकारची नाहरकत प्रमाणपत्र तसेच अर्जहा के लेला

नव्हता व नाही

.

त्यामुळे सदर भाग दाखला खाते न

.

४५ हा इतर कोणाचेही नावे वर्ग

के लेला नाही

.

अथवा त्यांनी सभासदत्वाचा राजीनामा हीदिलेला नाही

. सदर

सभासदत्व आजही अबादित आहे

.

तसेच सदर गोडाऊन संदर्भात श्री

. प्रकाश

बाळकृष्ण डफळापूरकर यांनीविक्रीसंदर्भात

(संस्थेकड

ून

)

जाबदेणार कडून

नाहरकत प्रमाणपत्र कधीही घेतलेलं नव्हते व नाही

.

तसेच अर्जदारांनीमागणी

सभासदत्वासाठीमूळता ज्याचेकडून खरेदी घेतले त्यांचे नावे

(संस्थेकडे)

जाबदेणारांकडे सभासत्व कधीच नव्हते व नाही

.

३)

प्रस्तुत जाबदेणार यांचे पुढे असे म्हणणे आहेकि

,

प्रस्तुत वर नमूदमालमत्तेच्या

पहिल्यामालकाने म्हणजेच श्री

.

डफळापूरकर यांनी त्यांच्यामालमत्तेतीलमिळकत

इतर व्यक्तीस हस्तांतरित करते वेळी जाबदेणार यांचे कोणतीही नाहरकत घेतलेली

नव्हती व नाही

.

तसेच त्यांनी आपल्या नावे असलेला सोसायटीचा भाग खाते न

. ४५

हा चा राजीनामाही आजतागायतदिलेला नव्हता व नाही

.

त्यामुळे प्रस्तुत अर्जदारांनी

के लेलामहाराष्ट्रसह

.

अधिनियम१९६० चे कलम२३

(२)

अन्वये के लेला अर्ज

फे टाळण्यात यावा

.

13)Even before the Divisional Joint Registrar, the Society did not raise

the issue of godown and shop being part of same premises. However, in

the present Petition, the main ground of challenging order of the

Divisional Joint Registrar is that the godown is a part of shop and the

same cannot be bifurcated for the purpose of treating only the godown as

a ‘flat’ for the purpose of grant of membership to Respondent Nos.1 and

2.

14)To decide the controversy, it would be necessary to make a quick

reference to the statutory scheme of the MCS Act. Under Section 154B-

1(13) of the MCS Act, the term ‘Flat’ is defined as under:

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154B-1. Definitions

13) "Flat" means block, chamber, dwelling unit, apartment, office,

showroom, shop, godown, premises, suit, tenement, unit or by any other

name, means a separate and self-contained part of any immovable

property, including one or more rooms or enclosed spaces, located on

one or more floors or any part thereof, in building or on a plot of land,

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

business, occupation, profession or trade, or for any other type of use

ancillary to the purpose specified;

15)Under Section 154B-2 of the MCS Act a tenant co-partnership

housing society cannot be registered unless five persons or at least 51%

of total number of flats as per sanctioned plan join the registration

proposal. Sub-section (1) of Section 154B-2 of the MCS Act provides

thus:-

154B-2. Registration of co-operative societies.—

(1)No tenant co-partnership housing society shall be registered

under this Act, unless it consists of at least five persons (each of

such persons being a Member of different family) or at least fifty

one per cent. (of total number of flats as per sanctioned plan) flat

purchasers or intending Members and who are qualified to

become Member under this Act, whichever is higher, joins the

registration proposal of housing society to be registered.

(emphasis added)

16) Section 154B-5 of the MCS Act deals with limit on memebership

and 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 organisation (co-operative housing society,

company, association, etc.) of flat purchasers, in case the plot owner

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had constructed and sold flats as per prevailing rules, in place of

original plot owner Member.

Thus, under the statutory scheme of the MCS Act, for becoming member

of a co-operative housing society, one must own a flat, which is approved

in the sanctioned plan and the membership in a cooperative housing

society cannot exceed the number of flats. This follows that the number

of flats referred to in Section 154B-5 means the flats as sanctioned in the

development permission. The place in the building which is not

sanctioned in the development permission as one of the enumerated

premises while defining the term ‘flat’ under Section 154B-1(13) cannot

be taken into consideration for allotment of membership in a

cooperative housing society. This would mean that a person claiming

rights in respect of only a parking space or staircase or veranda in the

building cannot be admitted as society’s member. Also true is the

position that a flat cannot be artificially bifurcated for creation of two

membership. In case the bifurcation of a singular flat is made, such

bifurcation must be sanctioned by the planning authority. To illustrate,

purchase of a larger premises is done for accommodation of a large

family during construction of a building and one flat is accordingly

sanctioned by the planning authority. However after passage of time,

such large premises are not needed and the purchaser decides to

bifurcate the premises into two flats, he can apply to the planning

authority and get the same bifurcated. There is no prohibition on

bifurcation of one flat into multiple flats provided the planning authority

sanctions such bifurcation as per the planning norms.

17) Chapter -XIII-B has been inserted in the MCS Act for making

special provisions relating to co-operative housing societies. After the

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amendment, Section 154B-1(13) defined the term ‘Flat’ in a expansive

manner and the term ‘Flat’ now includes even a godown or self-

contained part of immovable property. Going strictly by definition of the

term ‘Flat’ under Section 154B-1(13) of the MCS Act, godown purchased

by Respondent Nos.1 and 2 can be treated as a flat.

18) The next requirement is that a flat must be sanctioned in the

development permission issued by the Planning Authority. In Uday

Dalal (supra) this Court, after examining statutory scheme of the MCS

Act, has held that the sanctioned plan is the first and most important

document, which the Registrar must take into consideration while

deciding membership application. This Court has held in paragraphs 18

to 24, 26 and 40 as under:

18. Section 23 creates the right of open membership. It prevents a

society from refusing membership without sufficient cause. However,

this right applies only to persons duly qualified under the Act and the

bye laws. The phrase “duly qualified” is the key. In a housing society

governed by Chapter XIII-B, qualification for membership is not

determined by mere physical possession of premises. It depends on

whether the applicant owns or intends to own a flat recognised in the

sanctioned plan. Even the deemed membership mechanism in

Section 23(1A) cannot override the statutory ceiling under Section

154B-5. A deemed membership arises only if the applicant is

otherwise eligible. Eligibility, in turn, depends on the sanctioned

plan. The appellate power under Section 23(2) is supervisory. The

Registrar cannot treat a structure as a flat unless it appears in the

sanctioned plan or a sanctioned modification proves its independent

existence.

19. The definition of “flat” in Section 154B-1(13) widens the scope of

premises that may be treated as flats. However, this wider definition

operates within the larger statutory framework. A structure may be

physically capable of being used as a flat. But unless the sanctioned

plan recognises it as a separate and self contained unit, the law does

not recognise it as a flat for granting membership. The definition

describes the characteristics of a flat. Sections 154B-2, 154B-3 and

154B-5 determine whether such a flat qualifies for membership. Thus,

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the sanctioned plan acts as the filter that converts physical structures

into legally recognised flats.

20. Section 154B-2 makes the sanctioned plan an essential condition

for registration. A housing society cannot be registered unless at least

fifty one per cent of the flat purchasers as per sanctioned plan join

the proposal. This demonstrates that the sanctioned plan is not a

technical document. It decides the basic identity of the society, the

number of flats, and the minimum number of members. When the

law requires flats “as per sanctioned plan”, it excludes any room,

garage, outhouse or extension not recognised in the sanctioned plan.

The society’s membership begins where the sanctioned plan begins,

and ends where the sanctioned plan ends.

21.Section 154B-3 further strengthens the scheme. It obligates the

promoters to produce commencement or completion certificates and

to place the sanctioned plan before the Registrar. The Registrar must

verify whether the number of flats mentioned in the registration

proposal matches the sanctioned plan. This statutory verification

ensures that no extra flats are created later by private arrangements.

It also ensures that no part of an existing flat can later be claimed as

an independent unit unless the sanctioned plan is amended by the

competent authority. Registration itself is founded upon the

sanctioned plan, showing that any later deviation without sanction

has no legal effect.

22. Section 154B-5 imposes a strict limit on membership. A housing

society cannot admit more members than the number of flats

available for allotment “in that society”. The expression “in that

society” refers to the flats recognised at the time of registration and

appearing in the sanctioned plan. This provision leaves no discretion

to the general body, the managing committee or even the Registrar.

Membership is tied entirely to the number of flats as per the

sanctioned plan. No sale deed, gift deed, family arrangement,

inspection report or general body resolution can enlarge the number

of flats. Only a sanctioned modification by the planning authority can

do so. This section is the statutory safeguard against manipulation of

voting strength by creating artificial flats.

23. When these provisions are read together, the legal position

becomes clear. The sanctioned plan is the foundation of membership.

It determines (a) how many flats exist, (b) how many members a

society may have, (c) who is eligible for membership, and (d) whether

a premises qualifies as a “flat” for membership purposes.

24. In disputes like the present one, the sanctioned plan is therefore

the first and most important document. Before deciding membership,

the authority must verify whether the disputed premises appears in

the sanctioned plan as an independent flat. Without such

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verification, no order under Section 23(2), and no resolution of the

general body, can be legally sustained.

xxx

26. A cooperative society is a body created by its members. It

functions according to the Act and its own bye laws. Courts do not

interfere in every internal matter of a society. The law expects

societies to manage their affairs on their own. This autonomy,

however, is not absolute. It must operate within the limits fixed by

the statute. When the bye laws lay down how a person should apply

for membership and how the managing committee must consider

such an application, that process must be strictly followed. These

safeguards ensure fairness and prevent misuse of power. If there are

allegations that documents have been fabricated, or that an existing

flat has been deliberately split into artificial parts to create new

memberships, the court cannot remain silent. Such acts, if proved,

would strike at the very foundation of cooperative functioning and

would affect the rights of all members. The court must step in to

protect the integrity of the society.

Xxx

40. Therefore, unless the disputed premises find place in the

sanctioned plan as an independent flat, they cannot be treated as

such for the purpose of granting membership. The authorities ought

to have examined the sanctioned plan, municipal records and earlier

public documents before reaching their conclusion. Their failure to

do so strikes at the root of the decision and cannot be sustained.

(emphasis added)

19) It is therefore necessary to examine whether the godown is

sanctioned as an independent unit in the sanctioned plan or is it a part

and parcel of Shop No. 8. Mr. Kandarkar has placed on record copies of

original sanctioned plan relating to ground and basement floors of the

building. Ground floor plan sanctioned by the Pune Municipal

Corporation on 25 June 1993 would indicate that shop No.8 has been

sanctioned therein with a loft. Similarly, in the basement floor plan, a

godown beneath shop No.8 has been sanctioned for storage of ‘non-

combustible material’. The plan does not indicate presence of any

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internal staircase from shop to the godown. On the other hand, godown

is accessible from adjoining common staircases. Thus, a separate

common staircase is available to access basement floor and going strictly

by the sanctioned plan, no separate individual staircase is sanctioned

from shop No.8 for accessing the godown. The sanctioned plan thus

clearly indicates that the godown has been sanctioned separately from

that of shop No.8.

20) Mr. Kandarkar has attempted to suggest that whenever premises

are sanctioned, they are given specific numbers by the planning

authority. He states that the shop is assigned number ‘8’ where there is

no corresponding number to the godown beneath it. In my view, this

omission in the plan would make no difference. There is one more

godown adjacent to the godown of Respondent Nos.1 and 2, which also

does not bear any particular name/number. Above that godown, is shop

No.1. This Court enquired with Mr. Kandarkar as to whether owners of

Shop No.1 and owners of godown beneath it are same or different or

whether there is separate membership for the two structures. Mr.

Kandarkar fairly responded that the two are separate structures with two

different memberships. Thus, the godown below Shop No.1, though same

is not assigned a specific number, is sold to a person different than the

owner of shop No. 1 and the godown occupant /owner is admittedly a

member of the Society. I do not find a valid reason as to why a separate

treatment needs to be given to the person, who owns godown beneath

shop No. 8.

21) Mr. Kandarkar has contended that godown does not have

independent access and that the same is required to be accessed only

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through an internal staircase going through shop No.8. The contention

however does not appear to be correct at least from the sanctioned plan,

which does not show presence of any internal staircase passing through

shop No. 8 to the godown. On the other hand, godown apparently needs

to be accessed from a common staircase going from ground floor to the

basement floor.

22) In the present case, confusion is apparently created on account of

purchase of shop No.8 and godown beneath it by same person-

Daphalapurkar. Merely because he purchased both the structures by

common agreement, the Society issued common share certificate to

Daphalapurkar and he was granted only one membership. 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.

Ordinarily, Society ought to have issued two separate share certificates to

Daphalapurkar in respect of shop No.8 and godown as is done in the case

of shop No.1 and godown beneath it. Be that as it may. Society found it

more convenient to give single membership to Daphalapurkar, who has

purchased shop No.8 and godown beneath it by a common document.

23) Thus, as per sanctioned plan, it clearly appears that godown and

shop are independently sanctioned and godown does not appear to be a a

part of shop No.8. The case does not involve deliberate bifurcation of a

single structure into two structures as was the case in Uday Dalal (supra)

wherein servant quarter attached to the flat was sought to be converted

into an independent unit. Here two premises are located on different

floors and are separately sanctioned in the plan.

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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

dated 25 June 1993

Description in the Revised

sanctioned plan dated 6 July 2021

GODOWN for NON COMBUSTIBLE

MATEIRAL

22’-8’ X 11’-0’’

272.09 SQFT B/UP

GODOWN NO. FOR NON

COMBUSTIBLE MATERIAL

22’ - 8’’x 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.

26)I am not impressed by objection of Mr. Kandarkar that the

Divisional Joint Registrar could not have relied on additional document

in the form of personal occupation certificate. It appears that the Society

had never raised the issue of two structures being common till filing of

reply in the Revision and possibly sought to raise the same during the

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course of arguments before the Divisional Joint Registrar. In any case the

Divisional Joint Registrar was under statutory duty to verify whether the

godown in the basement is a sanctioned structure or not. He has

performed the statutory duty by conducting the said verification and

cannot be criticized for placing reliance on the personal occupation

certificate.

27)Petitioner-Society has sought to raise doubts about genuineness of

the document being ‘personal’ occupation certificate. It is contended

that there is no concept of issuing a ‘personal’ occupation certificate. It is

also contended that the plans cannot be revised without the consent of

the society. However, Mr. Kandarkar does not dispute the position that

what is produced by Respondent Nos. 1 and 2 is a document issued by the

Pune Municipal Corporation. It is not a forged document. It is

accompanied by a revised commencement certificate. If Petitioner-

Society has any doubts about the power of the Pune Municipal

Corporation to issue such personal occupation certificate or in

sanctioning the revised plan without the consent of the society, the

remedy lies elsewhere. In any case, even if the said personal occupation

certificate is ignored, I am fully satisfied that the godown was separately

sanctioned in the original development permission and the same is once

again sanctioned as a separate premises in the revised commencement

certificate/development permission dated 6 July 2021. If the Society is

aggrieved by issuance of revised commencement certificate or personal

occupation certificate, it needs to challenge the same in independent

proceedings and the challenge cannot be permitted to be raised in

collateral proceedings relating to grant of membership.

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28) In my view therefore, the statutory requirement of flat being

sanctioned in the development permission is clearly met in the present

case.

29) Considering the overall conspectus of the case, in my view the

Divisional Joint Registrar has rightly set aside order passed by the

Deputy Registrar. Respondent Nos.1 and 2 are entitled to membership

qua the godown, which qualifies the description as ‘Flat’ and is as per

the approved sanctioned plan. As a matter of fact, creation of two

memberships in respect of Shop No.8 and godown beneath it enures to

the benefit of the Society rather than subjecting it to any loss. The

Society would earn two sets of service charges in respect of shop No.8

and godown, as against singular service charges, if both are treated as

part of the same structure for grant of one membership.

30)I am therefore, not inclined to interfere in the impugned order

passed by the Divisional Joint Registrar, which appears, to my mind, to

be unexceptionable. Writ Petition is devoid of merits. It is accordingly

dismissed with no order as to costs.

[SANDEEP V. MARNE, J.]

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