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Society Cannot Levy Maintenance Charges Based on the Area of Flat of Members

Equality as a concept is perhaps best exemplified by the CHS model. However, with differences in the member’s income levels, flat sizes and the usage of common utilities, this equality is being increasingly questioned. Several CHS have passed resolutions to replace the equal distribution of outgoings per member, in the form of maintenance charges, but without much success.

These attempts received a further set back, when the Bombay High Court passed a judgment in a matter upholding the concept of equality and directed the concerned CHS to levy maintenance charges equally for all members. In a Writ Petition of Venus CHS Ltd and another, Justice R J Kochar delivered a 19 page judgment. In this case, the CHS had 284 flats of 2BHK and 39 flats of 4BHK.

A resolution was passed on November 30, 1980, that the monthly maintenance would be switched from flat-wise monthly charges to area-wise monthly charges. Due to this the 39 Flats of 4BHK flat owners had to pay more money per month towards the monthly charges.

Experts state that, this gave rise to a controversy between the two groups of flat owners. The CHS filed a suit in form of the above writ petition. After 20 years, the court came up with a decision that the CHS cannot pass a resolution making some flat owners pay more as this would be discriminatory and would violative of their fundamental rights. This judgment would be applicable to all the CHS. Until the judgment is superseded or reversed, societies will have a tough time charging higher amount of maintenance. Now, a CHS cannot charge its members as per the area wise, and have to charge them at a flat rate per month per flat. This judgment has been used by a number of flat owners to make their societies change the rule of charging maintenance and many societies have arbitrarily, in the wake of this judgment, increased the amount paid by the smaller flat owners to bring it at par with the bigger flat owners.

Experts further explains that this legal position is further reinforced by The Maharashtra Ownership of Flats Act (MOFA), which prescribes that every flat in a CHS is to be considered as one unit, irrespective of its size. As such, every flat should be charged equally for the maintenance, that is, a member has to pay monthly maintenance charges flat wise, and not according to the area of the flat.

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