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by Admin
14 December 2025 5:24 PM
“Equal Maintenance Cannot Override Law”, In a notable judgment Bombay High Court upheld the orders of the Deputy Registrar of Co-operative Societies and the Co-operative Court, Pune, which directed a condominium to levy maintenance charges proportionate to the undivided interest of apartment owners as mandated by the Maharashtra Apartment Ownership Act, 1970. Dismissing Writ Petition No. 9179 of 2022 filed by owners of larger flats, Justice Milind N. Jadhav held that the registered Deed of Declaration and statutory provisions under Sections 6 and 10 of the Apartment Act override any contrary resolution passed by the condominium.
“The Petitioners have already benefited in the past due to the inequality and non-application of the statutory provisions under the Apartment Act. They cannot obstruct implementation of the provisions of the Apartment Act,” the Court ruled, reiterating that a registered Deed cannot be nullified by majority resolutions.
The dispute arose from ‘Treasure Park’, a registered condominium in Pune comprising 11 buildings and 356 apartments of varying sizes (2BHK, 3BHK, 4BHK). The complex was subjected to the Maharashtra Apartment Ownership Act, 1970, through a registered Deed of Declaration dated 29.07.2011, and a Supplementary Deed dated 31.05.2017.
Although the Deed provided for maintenance charges to be calculated proportionately based on apartment area and undivided interest, the condominium had been following an equal charge model, relying on general body resolutions. This prompted smaller apartment owners (Respondents 1 to 5) to file a complaint before the Deputy Registrar, alleging violation of Section 10 of the Act.
The Deputy Registrar, by order dated 08.07.2021, directed the association to collect maintenance proportionately. The Co-operative Court upheld this in an appeal on 13.05.2022, leading to the present writ petition by larger apartment owners challenging both orders.
Jurisdiction of Deputy Registrar Under the Apartment Act
The petitioners argued that the Deputy Registrar lacked jurisdiction under Section 16A of the Apartment Act, as he was not expressly empowered. Relying on Marathwada University v. Seshrao Balwant Rao Chavan and Sahni Silk Mills v. ESIC, they contended that delegated powers under the Maharashtra Co-operative Societies Act, 1960 could not be extended by implication.
The Court, however, rejected this argument, holding that the State Government's Notification dated 24.11.2021 under Section 3 of the MCS Act conferred all powers of the Registrar (except those explicitly excluded) upon the District Deputy Registrar, Pune City. It thus upheld the Registrar’s jurisdiction.
“The order dated 08.07.2021 passed by Respondent No.10 – District Deputy Registrar... cannot be contended by Petitioners as being without jurisdiction,” the Court ruled [Para 4].
Proportionate Maintenance as Statutory and Contractual Obligation
A central issue was whether maintenance charges must be collected based on flat size and undivided share, or whether equal distribution could be adopted by resolution.
Justice Jadhav conducted a conjoint reading of Sections 6 and 10 of the Apartment Act with the Deed of Declaration, particularly Clause 8(XVIII), which explicitly prescribes area-wise calculation of maintenance corpus and expenses.
“Section 10... provides that the common profits shall be distributed and the common expenses shall be charged to apartment owners according to the percentage of undivided interest in the common areas and facilities,” the Court observed [Para 10].
“Deed of Declaration being a registered instrument needs to be followed... If Petitioners’ case is accepted, then the registered Deed of Declaration would be a nullity in law,” the Court held firmly [Para 17].
The Court noted that the Deed also accords voting rights proportionate to apartment size, and those owning larger flats already possess greater say in condominium decisions, undermining their plea for equal treatment in expenses.
No Estoppel from Past Practice or Resolutions
The petitioners claimed that long-standing practice and general body resolutions had legitimised equal charges. The Court dismissed this contention, holding that neither practice nor resolutions can override statute or registered deeds.
“Just because the association... passed a resolution for equal maintenance, it does not mean that the members are estopped from following due process of law,” Justice Jadhav clarified [Para 15].
“Practice cannot prevail over statute. Members cannot escape obligations under the Deed or the Apartment Act,” he added [Para 17].
Rejection of Equality Argument by Larger Flat Owners
The Court squarely rejected the argument that larger flats did not enjoy greater use of common facilities, and hence should not pay more.
“Argument that larger flat owners do not get any additional benefit cannot be countenanced... They have greater value and higher undivided share,” the Court held [Para 16].
The Court observed that maintenance follows ownership value, not usage of amenities, and that this principle was embedded in Section 6(1) of the Apartment Act and the Deed of Declaration.
The Bombay High Court's ruling is a resounding affirmation of the statutory framework under the Maharashtra Apartment Ownership Act, 1970, and the binding nature of registered Deeds of Declaration. It establishes that equal maintenance charges across all flat owners—when not supported by law or deed—are unenforceable, even if adopted by majority resolutions.
“The Petitioners cannot obstruct implementation of the provisions of the Apartment Act... They have already benefited in the past due to the inequality,” the Court held while dismissing the writ petition.
This judgment will have far-reaching implications for apartment complexes across Maharashtra, particularly those registered under the Apartment Act, reinforcing that financial obligations must mirror ownership interest, not be diluted by convenience or practice.
Date of Decision: 4 August 2025
