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MUMBAI: The Bombay High Court has ordered a fresh verification of whether a small premises inside the historic Marlboro House Cooperative Housing Society on Pedder Road can legally be treated as an independent flat, a question that has fuelled a bitter divide among the Art Deco building’s residents.
On Friday, the court found that membership had been granted to a resident without checking if the so-called flat actually existed as a separate unit in the sanctioned building plan. The ruling has temporarily paused a dispute in which one group of residents alleges that a former servant room was wrongly converted into a new flat to create an extra vote ahead of the society’s elections.
How the dispute began
Society members Uday Dalal, Ajay Biyani and Rina Pritish Nandy approached the High Court claiming that Marlboro House, registered in 1996, originally had only six flats. The premises now treated as a seventh flat, they said, never appeared in the sanctioned plan. It was described only as a 150-sq-ft servant room attached to another flat.
However, during a period when the society was under an Administrator, the room was sold by Ruvin Realty Pvt Ltd to Prachi Agarwal, daughter-in-law of resident Rajendra Agarwal, and a new share certificate and membership were issued in her name.
The petitioners argued that this was not a genuine residential sale but a move to add votes in a small society where each member’s vote carries weight. They pointed to a provisional voters’ list that suddenly showed nine names, including those of Prachi Agarwal, Kushal Agarwal and an entity named Capital Mind. This, they said, suggested an attempt to create an artificial majority before the society elected a new managing committee.
The case hinged on a simple but important issue: Can any room that looks like a residential space be treated as an independent flat, or must it be recognised as a flat in the official building plan?
Senior advocates Aashish Kamat and Mayur Khandeparkar, for the petitioners, argued that no membership can be given unless the planning authority approves the premises as a separate flat. They added that membership decisions must be taken by a managing committee, not unilaterally by an Administrator.
On the other hand, senior advocate Anil Sakhare, for Prachi Agarwal, said the premises were self-contained and therefore qualified as a flat under law. Senior advocate Girish Godbole, for the society, relied on municipal assessment records and a general body resolution supporting the membership.
Court’s findings
Justice Amit Borkar disagreed with the respondents’ arguments and held that the authorities had granted membership without examining the sanctioned building plan, a mandatory requirement under law. The court said that a physical room, even if self-contained, cannot be treated as an independent flat unless it appears in the sanctioned plan or is supported by an approved modification.
It reiterated that a housing society’s total membership cannot exceed the number of authorised flats shown in the plan, and this statutory limit cannot be altered by a general body resolution or by private transactions. The court also rejected the claim that members cannot challenge such decisions, clarifying that objections are valid when they point to illegality that affects the society’s democratic structure.
What happens next
The High Court set aside the membership granted to Prachi Agarwal and directed the deputy registrar to obtain the sanctioned building plan and any records of approved changes, compare them with municipal documents, and determine whether the disputed premises were ever authorised as an independent flat.
If it is found that the premises formed part of an existing flat and were never approved as a stand-alone unit, the membership cannot be recognised for calculating the society’s voting strength. The deputy registrar has four weeks to complete the document verification and twelve weeks to issue a detailed order after hearing all parties.
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