In a landmark judgement with far-reaching implications for apartment owners and housing associations across Maharashtra, the Bombay High Court (HC) has ruled that maintenance charges in condominiums must be levied proportionately based on the undivided share of each flat, rejecting the widely adopted practice of charging a uniform fee across all units. The ruling applies only to condominiums under the Apartment Act, and not to cooperative housing societies (CHS) under the Cooperative Societies Act.
In an order, justice Milind N Jadhav says, "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 stopped from 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."
"The argument of the petitioners that the petitioners holding a larger apartment do not get any additional benefit or priority of preference in the undivided share or do not get any additional benefit cannot be countenanced in view of the aforesaid observations and findings and is stated to be rejected. Thus, in view of the applicability of the provisions of section 10 of the Apartment Act which clearly mentions that the common profits of the property shall be distributed among and the common expenses shall be charged to the apartment owners according to percentage of the undivided interest in the common areas and facilities squarely applies to the case of the petitioners before me," the bench says.
The verdict came in a writ petition filed by a group of residents from Treasure Park, a registered condominium in Pune comprising 356 apartments across 11 buildings. The petitioners, who own larger three-bedroom, hall and kitchen (BHK) and 4BHK flats, had challenged orders passed by the deputy registrar of cooperative societies and later the cooperative court which held that maintenance charges must be calculated in line with the provisions of the Maharashtra Apartment Ownership Act, 1970 (MAOA).
The dispute began in 2020, when a group of owners of smaller apartments approached the deputy registrar, alleging that equal maintenance fees being charged to all flat-owners violated Section 10 of the Apartment Act. The deputy registrar, after examining the complaint, directed the condominium association to calculate maintenance in proportion to the undivided interest of each apartment. This order was upheld in May 2022 by the cooperative court. The petitioners, aggrieved by these decisions, moved the High Court.
Delivering the judgment justice Jadhav upheld the lower orders and dismissed the petition. He noted that the registered deed of declaration signed by all apartment owners under the Apartment Act clearly specifies that the share of income and common expenses must be based on the area and value of each unit. The court emphasised that this deed, being a registered instrument, carries statutory force under the Act and cannot be overridden by a general body resolution passed by a simple majority of residents.
The Court rejected the petitioners’ argument that all residents use common amenities like parks, gyms and security equally and should therefore bear equal maintenance costs. It held that under Sections 6 and 10 of the Apartment Act, each apartment-owner has an undivided interest in common areas proportionate to the size and value of their flat and this must also determine their liability for common expenses. The judgement further pointed out that the deed of declaration also gives higher voting rights to larger flat owners, reflecting their greater stake in the property.
Justice Jadhav also dismissed the argument that the deputy registrar lacked jurisdiction to pass the initial order, citing a government notification that conferred relevant powers under the Apartment Act to district-level registrars. He underlined that the long-standing practice of equal maintenance, even if never challenged before, does not legitimise its legality if it contravenes the statutory provisions. Just because a group of members previously accepted the equal charges does not mean others are estopped from asserting their rights under the Act.
The Court’s observations were particularly stern on the point that any deviation from the proportional maintenance system must be implemented through a registered amendment to the deed of declaration and not through informal resolutions or internal decisions. The Court said the petitioners had benefited from an illegal system for years and now could not obstruct the implementation of the law simply because it disadvantaged them.
"...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, which also affords voting rights to each apartment owner on the proportionate area of each unit to the total area of all units. Thus, the member holding a higher proportionate value and size (area) of the apartment must contribute to the common area maintenance charges proportionately," the HC says.
Importantly, the ruling is specific to condominiums registered under the Maharashtra Apartment Ownership Act and does not apply to cooperative housing societies (CHS) governed by the Maharashtra Cooperative Societies Act, 1960. The two legal frameworks differ significantly in the way they define property rights and obligations of members.
Under the Apartment Act, the undivided interest in common areas is a legally attached and permanent part of the apartment and all expenses and profits must be distributed accordingly. Under the Maharashtra Cooperative Societies Act, members have occupancy rights through shareholding in the CHS or cooperative housing society, not individual ownership of land or building. They must follow the society's bye-laws, pay dues and seek approval for transfers or structural changes.
In conclusion, the High Court reaffirmed the validity of the orders passed by the deputy registrar and cooperative court and dismissed the writ petition. This judgement is likely to set a precedent for many luxury condominiums and apartment complexes in Maharashtra, where maintenance fees have historically been charged uniformly, regardless of flat size. Associations registered under the Apartment Act must now revise their billing practices and align them with the law if they wish to avoid similar legal challenges in the future.
(Writ Petition No9179 of 2022 Date: 4 August 2025)
