Bombay HC: 'Larger Flat Owners Must Pay Higher Maintenance In Condominiums Under 1970 Act'

Mumbai: In a significant ruling, the Bombay High Court has held that owners of larger apartments must pay higher maintenance charges in residential condominiums governed by the Maharashtra Apartment Ownership Act, 1970, as their share in the common property is proportionately larger.

Petition by 3BHK and 4BHK Owners in Pune Dismissed

The court dismissed a petition filed by owners of 3BHK and 4BHK flats in Treasure Park, a Pune-based condominium comprising 11 buildings and 356 apartments. The petitioners had challenged a 2021 order of the Deputy Registrar of Co-operative Societies directing that maintenance charges be levied based on each apartment's size, and a subsequent order by the Co-operative Court rejecting their appeal.

Owners of Smaller Flats Had Objected to Equal Charges

The dispute began when owners of smaller flats (2BHK) complained that the practice of charging equal maintenance from all residents, regardless of flat size, violated Section 10 of the 1970 Act.

The Deputy Registrar accepted their plea and instructed the condominium to switch to a proportionate billing system. This order was challenged by larger flat owners, who claimed it was passed without hearing them and that it lacked legal basis.

Petitioners Claimed Deputy Registrar Lacked Jurisdiction

Their counsel, Senior Advocate Atul Damle, argued that the Deputy Registrar had no jurisdiction under the Apartment Act. The Deputy Registrar is not the 'Registrar' as defined under the Act. There has been no specific delegation of powers under Section 16A of the Apartment Act to the Deputy Registrar, he said, adding that the order was “sans jurisdiction and amounts to nullity.”

He further submitted that the maintenance was used for facilities such as the gym, park, and security, which are “equally accessed by all residents,” and that the existing general body resolutions allowed equal maintenance charges.

Deed of Declaration Mandates Charges Based on Area

However, the high court rejected this reasoning. Justice Milind Jadhav observed that the Deed of Declaration registered under the Act, which governs the condominium, explicitly states that income and expenses must be shared based on the size of each unit.

“Section 10 clearly provides that common expenses shall be charged to apartment owners according to the percentage of their undivided interest in the common areas and facilities,” the court said.

Deputy Registrar’s Authority Upheld by HC

Advocate Khushnumah Banerjee, appearing for the respondents, pointed to government notifications delegating powers to the Deputy Registrar and emphasised that the Deed of Declaration also grants higher voting rights to owners of larger flats.

Petitioners Benefited Under Unequal System for Years

Noting that the petitioners had already benefited for years under an unequal system, the court concluded: “They cannot obstruct implementation of the statutory provisions... If Petitioners’ case is to be accepted, the registered Deed of Declaration would be a nullity in law.”

The judgment clarifies that in apartment condominiums, unlike co-operative housing societies governed by the 1971 Act, maintenance must reflect the ownership structure, where each flat owner holds a legally defined undivided share in the entire property.