Bought 250 sq m, Recognised for 59: Bombay HC on a Basement Sold Beyond the Plan

The plans sanctioned in October 1998 for a building on Pali Mala Road in Bandra (West) allowed five floors and a basement meant mostly for parking, with just 59.02 square metres sanctioned as storage. The developer built seven floors, without sanction or an occupation certificate, and left the basement without a ramp or staircase. In August 2004, a company took an unregistered agreement for sale for about 250.83 square metres of that basement. Twenty-two years later, the Bombay High Court has decided what the company actually holds: membership of the society, but for only 59.02 square metres.

The judgment, in ALJ Residency Co-operative Housing Society Ltd v. Gehlot Development Services Pvt Ltd, Writ Petition No. 10241 of 2026, was pronounced by Justice Sandeep V. Marne on October 7, 2026. For Bengaluru buyers offered a basement unit, an extra floor or any space beyond the sanctioned plan, it shows how much the sanctioned area matters, years after the sale.

The short answer. The court dismissed the society's petition and confirmed the Deputy Registrar's May 7, 2026 order granting the company membership for the basement premises, but confined that membership to the 59.02 square metres that has sanction, to be treated as residential for redevelopment. It held that "it cannot be stated as a matter of universal principle" that every basement is a common amenity, and noted that the occupants of the unsanctioned 6th and 7th floors were similarly placed. The trade-off: the basement buyer is recognised as a member, but for about a quarter of the area it agreed to buy.

How did a basement end up being sold?

According to the judgment, the developer, Bhati Homes Pvt Ltd, built up to the 7th floor without sanction or an occupation certificate. The company's agreement for sale of August 2, 2004 covered about 250.83 square metres of basement, roughly 2,700 square feet. It later paid deficit stamp duty and registered a deed of declaration. A TDR was purchased and plans to regularise the basement and the 6th and 7th floors were submitted to the municipal corporation, but the process stalled before sanction.

The company applied for society membership on February 7, 2009, and the Deputy Registrar granted it on August 21, 2009. The society's belated revision was dismissed in July 2022. In November 2025, the High Court set aside both orders and remanded the question of whether the basement premises are a "flat" or part of the common areas. On May 7, 2026, the Deputy Registrar again allowed membership, relying on an April 25, 2008 plan marking the space as a "Data Processing Unit."

The remand had asked a precise question: whether the basement premises are a "flat" under Section 154B-1(13) of the Act or part of the common areas. The society argued that the Deputy Registrar strayed beyond that question. The High Court disagreed, finding that he did examine whether the premises are a flat, and said: "The remit of inquiry is thus not violated by the Deputy Registrar." That finding mattered, because it meant the May 2026 order was tested on its merits rather than set aside on scope.

What did each side argue?

The society said the Deputy Registrar had gone beyond the remand and ignored the sanctioned plans, which show the basement as parking and common area. It argued that the 2008 document was an unsanctioned proposal, and that a Chief Fire Officer's no objection certificate does not turn it into a sanctioned plan. It relied on Section 154B-5 of the Maharashtra Co-operative Societies Act, under which membership cannot exceed the number of flats, and said the company had suppressed facts, including a 2002 letter describing the basement as received in barter and the sale of the TDR.

The company said the society should have filed a revision instead of a writ, that the society was estopped by its own conduct, having taken part in regularisation and given membership to the 6th and 7th floor occupants, and that the basement could be regularised as a data processing unit or storage. It accused the society of suppressing its earlier pleadings and its conduct in other proceedings.

Why did the court not treat the basement as a common amenity?

Because, relying on the Ashwini Heights decision, it held that basements are not always common amenities. The sanctioned plan itself showed 59.02 square metres as storage, and the court found the 2008 document, though "not a sanctioned plan," showed the basement was capable of regularisation.

It also looked at the society's own conduct. The society had consented to regularising the basement, issued no objection certificates for TDR loading and stairs, and in a 2008 letter to the Collector of Stamps had endorsed the company's possession. The court said that while estoppel cannot override law, the law does not prohibit regularising the basement. It added that "Grant of membership to Respondent No.1 is not to encourage sale of common amenities by Developers."

Why did the 6th and 7th floors matter?

Because they were in the same position. Those flats also lack sanction, yet their occupants had been given membership. The court said denying membership to the basement holder would logically require denying it to those occupants too. It noted that a deemed conveyance had been granted to the society on November 25, 2024, so regularisation was no longer the route, and concluded that "the same benefit needs to be extended to Respondent No.1 as well."

The court also criticised the society's secretary, who it said occupies an unauthorised 6th floor flat, for taking inconsistent positions, but did not impose costs because he may have acted under the general body's authorisation.

Why only 59.02 square metres?

Because that is the only basement area with sanction. The court noted that the actual built basement is about 230.30 square metres, so even the 250.83 square metres claimed did not exist, and limited membership to the sanctioned 59.02 square metres, about 637 square feet. For redevelopment, those premises are to be treated as residential. The court also noted doubts about applying a 2019 provision of the Maharashtra Co-operative Societies Act, on membership not exceeding the number of flats, to a 2009 grant.

On procedure, the court held that the society should have pursued a revision under Section 154 of the Act rather than coming straight to the High Court, but decided the merits because the society insisted. It dismissed the petition with no order as to costs and rejected the society's request for an eight-week stay.

What should a Bengaluru buyer take from a Bandra basement?

That paying for space beyond the sanctioned plan can leave you owning much less than you bought. The company here agreed to buy about 250.83 square metres and, after more than two decades and several rounds of litigation, is recognised for 59.02 square metres. The court's reasoning on parity with the upper floors helped it keep membership, but parity did not stretch the area beyond what the plan allowed.

The judgment also shows how a building's irregularities can tie its residents together. The occupants of the unsanctioned 6th and 7th floors and the basement holder were all in the same position on sanction, and the court treated them alike. For buyers, that means an unauthorised floor is not just the seller's problem; it can shape the society's decisions, its litigation and its redevelopment for years.

PropNewz explained what flat buyers co-own in common areas in our guide to common areas, and how the commencement, completion and occupancy certificates fit together in our guide to the three certificates. The checklist below turns this case into steps to take before you pay anything.

1. Ask for the sanctioned plan and check whether the unit you are buying appears in it.
2. Compare the area in your agreement with the sanctioned area for that space.
3. Treat basements, terraces and extra floors as unsanctioned unless the plan says otherwise.
4. Ask whether an occupancy certificate covers the floor or space you are buying.
5. Check whether any regularisation application is pending, and how far it has gone.
6. Ask the association whether it accepts the unit as a flat for membership.
7. Take legal advice before paying for any space the developer describes as extra or bonus.

Frequently asked questions

What did the Bombay High Court decide in ALJ Residency CHS v. Gehlot Development Services?

On October 7, 2026, Justice Sandeep V. Marne dismissed the society's petition and confirmed the Deputy Registrar's order granting the company membership for basement premises, but confined membership to the 59.02 square metres with sanction, to be treated as residential for redevelopment. There was no order as to costs.

Is a building's basement always a common amenity?

Not according to this judgment. Relying on the Ashwini Heights decision, the court said it cannot be stated as a matter of universal principle that every basement is a common amenity. Here the sanctioned plan itself showed 59.02 square metres of the basement as storage.

Why was membership limited to 59.02 square metres?

Because only that area had sanction. The agreement covered about 250.83 square metres, but the court noted the actual built basement was about 230.30 square metres, so even the claimed area did not exist, and it confined membership to the sanctioned 59.02 square metres, about 637 square feet.

What should a buyer check before buying space beyond the plan?

Ask for the sanctioned plan and check whether your unit appears in it, compare the agreement area with the sanctioned area, treat basements, terraces and extra floors as unsanctioned unless shown, ask whether an occupancy certificate covers the space, and take legal advice before paying.

Last updated 2026-11-06. PropNewz Team.