Maintenance Charges Under Maharashtra Apartment Ownership Act Cannot Be Modified By Flat Owners' Resolution: Bombay High Court

The Bombay High Court has held that apartment owners in a condominium must pay maintenance charges for common areas in proportion to their undivided interest, as required under Section 10 of the Maharashtra Apartment Ownership Act, 1970. It ruled that this statutory requirement cannot be modified or overridden by resolutions passed by the association of apartment owners seeking to impose equal charges irrespective of unit size.Justice Milind N. Jadhav was hearing a writ petition filed by members of the 'Treasure Park' Condominium challenging the orders passed by the Deputy Registrar of Co-operative Societies and the Co-operative Court, which had directed that maintenance charges must be levied in proportion to the apartment area, not equally.The petitioners, owners of larger flats (3BHK and 4BHK), contended that all apartment owners availed of common amenities equally, and therefore, the equal sharing arrangement was justified. They argued that the impugned order passed by the Co-operative Court proceeds on an erroneous presumption that larger flats are occupied by a larger number of people, which is unconnected with the common maintenance amount. The Court rejected these arguments and held that both the Apartment Act and the registered Deed of Declaration mandated proportionate sharing of common expenses. It noted that the Deed of Declaration explicitly stipulated that contributions towards common area maintenance would be based on the side of their respective purchased apartment. “…the ascertainment of the percentage of interest in the common area granted to each apartment owner is according to the Deed of Declaration, which is required to be calculated in proportion to the value of the apartment in relation to the value of the entire property as provided in the Apartment Act. The Deed of Declaration is found in consonance with the provisions of the Apartment Act…,” the Court observed.Referring to Section 10 of the Act, the Court emphasised that the undivided interest in common areas determines the financial liability of each apartment owner, and the members cannot be "estopped from following this by a mere resolution for equal maintenance. It observed:“It is seen that just because the association of Members in the condominium have in the past passed a resolution for equal maintenance, it does not mean that they / or the members are estopped from the following due process of law. The condominium under the Apartment Act is empowered to act in the interest of all apartment owners for maintenance of the common areas and facilities in view of Section 10 of the Apartment Act.”Accordingly, the Court dismissed the writ petition and upheld the orders of the Deputy Registrar and the appellate Court.Case Title: Sachin Malpani & Ors. v. Nilam Patil & Ors. [WRIT PETITION NO. 9179 OF 2022]Click Here To Read/Download Order

Maintenance Charges Under Maharashtra Apartment Ownership Act Cannot Be Modified By Flat Owners' Resolution: Bombay High Court

Saksham Vaishya

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