Your Redevelopment Flat Came Out Smaller Than Promised. Where Do You Actually Go in Mumbai?

If you own a flat in an old Mumbai building, redevelopment may be the biggest property decision you make with your neighbours. You hand your home to a developer for a few years and wait for a bigger, better flat.

So imagine getting the keys and finding the flat is smaller than the agreement said, or the parking and amenities you were promised are missing. Where do you go then? A Bombay High Court ruling this week gives a clear, if slightly uncomfortable, answer, and I think every society member should understand it before signing anything.

What did the Bombay High Court decide this week?

As reported by the Free Press Journal on 28 October 2026, a bench of Justices Suman Shyam and Gautam Ankhad dismissed a writ petition filed by two members of Bhanujyoti Co-operative Housing Society in Malad (East). They owned two flats in the society and said, after redevelopment by Namo Realty Ventures LLP, that their carpet area was smaller than promised and that agreed amenities and car parking had not been provided. They asked the High Court, under Article 226 of the Constitution, for additional area and financial compensation.

The court agreed with the developer. It said the substance of what the members wanted was "additional area", that a writ of mandamus "would not lie against a private person" who is not discharging a public duty, and that writ jurisdiction cannot replace ordinary civil remedies in a private dispute. It found no public law element and no breach of statutory duty by the municipal authorities.

The report adds that 46 of the society's 48 members supported the project, the redevelopment is complete, and the other members have taken possession.

Why can't I just go to the High Court?

My reading of the ruling is simple: a writ is meant for public duties, like a government body failing to act. A developer building your new flat is a private party carrying out a private contract. If the contract was broken, the court is saying, use the remedies meant for contracts, not a writ. The petition was dismissed on that ground, so the court did not decide whether the members' complaints about area and parking were right or wrong.

I'd treat this as a signpost, not a closed door: your rights remain, but they run through your development agreement.

Can members of a redevelopment society file a MahaRERA complaint?

Many members assume that because the new building is registered with MahaRERA, they can complain there like any other buyer.

In May 2026, the Maharashtra Real Estate Appellate Tribunal said otherwise in Sudhir Vitthal Mulay v. Rui Universal Realties, as reported by LiveLaw Biz on 18 May 2026. The Tribunal held that RERA applies to the sale component of a redevelopment project, the flats the developer sells to new buyers. An existing member's rights come from the society's development agreement, not an agreement for sale, so the member was not an "allottee" under the Act. It said the development agreement "cannot be enforced under the provisions of RERA Act, 2016" and that any dispute arising from it "must be enforced either individually or through the Society".

Put the two rulings side by side and the picture is clear. For a rehab flat, neither a MahaRERA complaint nor a High Court writ is the usual answer. The development agreement is the document that matters, and it is enforced through ordinary legal remedies, by you or by your society. If you are buying one of the sale flats in the same building, your position is different, and I have written about that in buying a flat in a redevelopment project.

What is the 3% carpet area clause, and why should you care?

In a Consumer Connect column in the Free Press Journal in July 2026, advocate Shirish Deshpande, chairman of the Mumbai Grahak Panchayat, pointed out a gap. MahaRERA's model agreement for sale protects buyers of sale flats: the developer must reimburse even a 1 sq ft shortfall, with interest. But there is no model development agreement for societies, and some agreements include a clause that lets the developer off for any shortfall of up to 3% of carpet area, compensating only the part above 3%.

Here is what that means in plain numbers. Say your agreement promises a 500 sq ft carpet area flat:

• If the flat comes out 3% smaller, that is 15 sq ft short, and under such a clause you get nothing for it.
• If it comes out 5% smaller, that is 25 sq ft short, but only 10 sq ft (the 2% above the cushion) is compensated. The other 15 sq ft is simply gone.

In Mumbai, 15 sq ft is real money. The column's advice to societies is direct: refuse any clause that lets a developer escape liability for a shortage of up to 3%. It also says such a clause can be challenged as unfair, pointing to the Consumer Protection Act, 2019, which allows State and National Consumer Commissions to strike down unfair contract terms. But because a development agreement is negotiated, it stresses that the society should keep written evidence that it objected to the clause.

If carpet area itself feels confusing, my explainer on RERA carpet area vs built-up area is a good place to start.

What should you check in a development agreement before signing?

Drafting is your society lawyer's job, but these are the questions I would want answered in writing:

• Carpet area, flat by flat. Is each member's new carpet area stated clearly, using the RERA definition, not a loose "area" figure?
• The shortfall clause. Is there any cushion (like 3%) before compensation starts? If yes, has the society formally objected in writing?
• Amenities and parking. Are they listed specifically, with numbers, not described as "modern amenities"?
• Measurement at handover. Who measures the flat, and can members verify it before accepting possession?

Our redevelopment member checklist goes deeper into the earlier stages, and the TND RERA helpdesk is there if you want help reading project details.