The Bombay High Court has upheld two concurrent orders passed by the Deputy Registrar of Co-operative Societies and the Co-operative Court, Pune, directing the Treasure Park Condominium to levy maintenance charges in proportion to the undivided share of each apartment owner, as required under the Maharashtra Apartment Ownership Act, 1970.
The writ petition was filed by Sachin Malpani and others, who own larger flats (3BHK and 4BHK) in the Treasure Park complex comprising 356 apartments across 11 buildings. The petition challenged the Co-operative Court’s order dated 13 May 2022, which had dismissed the petitioners' appeal against the Deputy Registrar’s order dated 8 July 2021. This order directed that maintenance charges should be levied as per the percentage of the undivided share of each apartment, in line with Section 10 of the Apartment Act.
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“The Deed of Declaration being a registered instrument needs to be followed in view of the statutory provisions of the Apartment Act applicable to the condominium apartment purchasers,” the Court emphasized.
The Court noted that the original Deed of Declaration, executed on 29 July 2011 and supplemented on 31 May 2017, clearly indicated that the undivided share of each apartment holder determines their share in common expenses. Clause 8(XVIII) of the declaration states that the share of each apartment owner in income and expenses is to be calculated based on their contribution to the Maintenance Corpus Fund (MCF), which varies with the apartment size.
The petitioners argued that maintenance had been historically charged equally among all flat owners, irrespective of the size or area. They claimed that common amenities like the gym, park, and pool were used equally and hence costs should be shared equally. They further contested the jurisdiction of the Deputy Registrar to issue such a directive, stating that only a Registrar as defined under the Apartment Act could pass such an order.
The order dated 8.07.2021 passed by the Deputy Registrar is sans jurisdiction and amounts to nullity,”senior counsel for the petitioners submitted.
However, the Court rejected this argument, relying on government notifications issued in 2012 and 2021, which vested powers of the Registrar with the Deputy Registrar under the Maharashtra Co-operative Societies Act. The Court held that the Deputy Registrar’s authority to pass such orders had statutory backing.
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Opposing the petition, counsel for the original complainants (owners of smaller flats) highlighted that both the Apartment Act and the Deed of Declaration clearly mandate proportionate sharing of expenses. It was also pointed out that a general meeting of the condominium held on 31 July 2022 implemented the Deputy Registrar’s order, and maintenance bills began being issued accordingly from August 2022. Petitioners neither challenged the minutes of that meeting nor paid the revised charges.
The High Court, after reviewing the statutory provisions and the Deed of Declaration, found that the maintenance charges must indeed be calculated proportionately. It referred to Section 10 of the Apartment Act, which states:
“The common profits of the property shall be distributed among, and the common expenses shall be charged to, the apartment owners according to the percentage of the undivided interest in the common areas and facilities.”
The Court also referred to previous judgments, including the Venus Co-operative Housing Society v. Dr. JY Detwani, where it was held that common amenities are to be enjoyed equally, but the financial contribution must be based on property size.
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It further held that even if prior practice allowed equal maintenance charges, it did not override the binding statutory provisions. The Court found no illegality in the orders passed by the Deputy Registrar and Co-operative Court, observing that the petitioners had already benefited from a previously unfair system and could not now block lawful enforcement.
Petitioners cannot obstruct implementation of the provisions of the Apartment Act which squarely and admittedly applies to their case, the Court ruled, dismissing the writ petition.
Case Title:Sachin Malpani & Others vs. Nilam Patil & Others
Case Number:Writ Petition No. 9179 of 2022