Bombay High Court
Mr. Sachin Malpani And Ors vs Mr. Nilam Patil And Ors on 4 August, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:32999
1.WP.9179.2022.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9179 OF 2022
Sachin Malpani and Ors. .. Petitioners
Versus
Nilam Patil and Ors. .. Respondents
....................
Mr. Atul Damle, Senior Advocate a/w. Mr. Vaibhav Kulkarni, Mr.
Prathamesh Deshpande, Ms. Disha Rathod and Mr. Yash Agarwal,
Advocates for Petitioners.
Ms. Khushnumah Banerjee i./by Vidhii Partners for Respondent
Nos.1 to 5.
Ms. P.J. Gavhane, AGP for Respondent Nos.10 & 11 - State.
....................
CORAM : MILIND N. JADHAV, J.
DATE : AUGUST 04, 2025.
JUDGEMENT:
1. Present Writ Petition takes exception to order dated
13.05.2022 passed by the Co-operative Court, Pune by which Appeal
No.01 of 2021 filed by Petitioners under Section 16B of the
Maharashtra Apartment Ownership Act, 1970 (for short "the
Apartment Act") was dismissed.
2. Brief facts germane for adjudication of the present Petition
are as follows:-
2.1. The subject property from which dispute in the present
Petition emanates is 'Treasure Park' which is a registered condominium
of 11 buildings namely building 'A' to building 'K' comprising of 356
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apartments registered under the Apartment Act. A Deed of Declaration
dated 29.07.2011 was executed and registered subjecting the property
to the provisions of the Apartment Act and also a Supplementary Deed
of Declaration dated 31.05.2017 was executed and registered for
additional construction. Deed of Apartment has been executed in
consonance with the Deed of Declaration with each apartment owner.
2.2. According to Petitioners, in the condominium as per the
resolutions passed by the General Body, maintenance charges were
charged equally to all apartment owners irrespective of the area of
their flat or their undivided share and only the contribution towards
the sinking fund varied as per the undivided share or area of the flat.
2.3. On 11.11.2020, Respondent No.1 to 5 who are also
apartment owners in the said condominium filed complaint with the
Respondent No.10 - Deputy Registrar of Co-operative Societies alleging
that the maintenance charges levied by the condominium are in
violation of Section 10 of the Apartment Act. Thereafter Respondent
No.10 issued notice to the Chairman and Secretary of the
condominium who filed their reply dated 28.12.2020.
2.4. On 08.07.2021, Respondent No.10 - Deputy Registrar of Co-
operative Societies passed order dated 08.07.2021 directing the
Treasure Park condominium to levy maintenance charges
proportionate to the undivided share of the apartment owners in terms
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of Section 10 of the Apartment Act.
2.5. Petitioners who are members of the Treasure Park
condominium were intimated about the said order dated 08.07.2021
by the Central Committee of the condominium by displaying the said
order on the notice board of the condominium on 14.07.2021.
Petitioners therefore approached the Co-operative Court, Pune to
challenge the order dated 08.07.2021 by filing Appeal No.01 of 2021
which was rejected by order dated 13.05.2022 which is impugned in
the present Petition.
2.6. Hence the present Petition.
3. Mr. Damle, learned Senior Advocate for Petitioners would at
the outset submit that Section 16A of the Apartment Act empowers the
'Registrar' to adjudicate upon the issue pertaining to violations under
the Apartment Act. He would submit that 'Registrar' is defined under
Section 2(s) of the Apartment Act as a person appointed as a Registrar
under the under the Maharashtra Co-operative Societies Act, 1970 (for
short 'MCS Act'). However he would submit that in the present matter,
the order dated 08.07.2021 is passed by Respondent No.10 who is the
Deputy Registrar of Co-operative Societies and not the 'Registrar' as
envisaged under the Apartment Act which is the applicable statute in
the present case. He would submit that the order dated 08.07.2021
passed by Respondent No.10 - Deputy Registrar of of Co-operative
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Societies is sans jurisdiction and amounts to nullity.
3.1. He has drawn my attention to order dated 19.06.2024
passed by this Court wherein this Court has recorded the statement
made by the learned AGP that there is no specific delegation of the
power under Section 16A of the Apartment Act in favour of the Deputy
Registrar. He would submit that reliance of the learned AGP on the
general delegation of powers by the Registrar as provided under
Section 3 of the MCS Act and the said delegation of powers cannot be
implied or read into as being the same and applicable to the case of
Apartment Act as it has to be in express terms. In support of this
submission he has referred to and relied upon the decision of the
Supreme Court in the case of Marathwada University Vs. Seshrao
Balwant Rao Chavan1 wherein the Supreme Court has explained the
maxim delagatus non potest delegare. He would submit that the said
proposition has been reiterated by the Supreme Court in the case of
Sahni Silk Mills (P) Ltd. Vs. Employees' State Insurance Corporation 2.
He would submit that in view of the above precedents, the decision
passed by the Respondent No.10 - Deputy Registrar of Co-operative
Societies amounts to nullity.
3.2. That apart he would submit that the order passed by the
Respondent No.10 - Deputy Registrar of Co-operative Societies directly
1 (1989) 3 SCC 132
2 (1994) 5 SCC 346
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affects the rights of Petitioners who are members of the condominium
being owners of 3BHK and 4BHK apartments and therefore the
Respondent No.10 - Deputy Registrar of Co-operative Societies before
passing any order ought to have given audience to them as it decided
the issue of practice of the condominium to levy common maintenance
charges across all flats.
3.3. On merits of the matter he would submit that as per the
audit reports, common maintenance collected by the condominium is
used for maintenance of common areas and amenities like swimming
pool, club house, gym, park, security, etc. which are used in common
by all apartment holders irrespective of their undivided share or area
of their apartment. He would submit that the order dated 08.07.2021
passed by the Respondent No.10 - Deputy Registrar of Co-operative
Societies is bad in law and is in contravention to the law laid down by
this Court in the case of Venus Co-operative Housing Society Vs. Dr. JY
Detwani 3 wherein this Court held that common amenities are enjoyed
by all members of the society irrespective of the area of flat they hold
and therefore large flat holders cannot be forced to pay more
maintenance towards the common facilities.
3.4. He would submit that the impugned order passed by the Co-
operative Court proceeds on an erroneous presumption that larger flats
are occupied by more number of people which is unconnected with the
3 2002 SCC OnLine Bom 1457
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common maintenance amount. He would submit that functioning of
the condominium is governed by the General Body Resolutions by
majority and have never been challenged by Respondent Nos.1 to 5 till
the filing of the complaint in November 2020.
3.5. He would submit that the Resolutions passed by the General
Body are in conformity with Section 10 of the Apartment Act as the
sinking fund and the property tax are already being paid by the
apartment owners as per their proportionate area. He has drawn my
attention to the provisions of Section 10 of the Apartment Act and
would submit that the provisions of Section 10 of the Apartment Act
use the words "according to the percentage of the undivided interest in
the common areas of facilities" and the Deed of Declaration of the
condominium does not give more or higher interest to large apartment
holders in common areas or facilities. He would submit that as per the
Apartment Act, person having higher area has a proportionate higher
interest in the land and not common areas or facilities.
3.6. In view of his above submissions, he would urge the Court to
allow the Writ Petition and thereby quash and set aside the two
concurrent orders viz. order dated 08.07.2021 passed by Respondent
No.10 - Deputy Registrar of Co-operative Societies and order dated
13.05.2022 passed by the Co-operative Court in Appeal filed by
Petitioners.
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4. PER CONTRA, Ms. Banerjee, learned Advocate for
Respondent Nos.1 to 5 - original complainants would on the issue of
jurisdiction of the Respondent No.10 to pass order dated 08.07.2021
draw my attention to the two Notifications dated 11.09.2012 and
24.11.2021 issued by the State Government through its Corporation,
Marketing and Textile Department in exercise of power conferred
under Section 3 of the MCS Act whereby the State Government
appointed such persons / officers to assist the Registrar and conferred
on the said officers all powers of the Registrar, except those as
specified in the said notification. She has drawn my attention to Sr.
No.6 in the Schedule of the Notification dated 24.11.2021 which
confers powers rather all powers of the Registrar under the MCS Act
except for certain Sections and Rules specified therein on the District
Deputy Registrar of Pune City. She would submit that in the light of
the powers conferred upon the Deputy Registrar by the said
Notification dated 24.11.2021, it cannot be contended by Petitioners
that the order dated 08.07.2021 passed by Respondent No.10 - District
Deputy Registrar of Co-operative Societies is without jurisdiction.
4.1. She has next drawn my attention to clause 7 of the Deed of
Declaration dated 29.07.2011 which states that each apartment
owner/s shall have undivided share in the general and / or restricted
common areas and facilities as enumerated therein in accordance with
the Apartment Act. Next she would submit that clause 9(xviii) of the
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Deed of Declaration provides for share of apartment owners for
sharing income and common expenses based on the size of their
apartment. She would submit that a conjoint reading of the aforesaid
clauses alongwith Sections 6 and 10 of the Apartment Act would make
it clear that that all apartment owners of the condominium possess
undivided interest in common areas and facilities. She would submit
that the Deed of Declaration of the condominium also affords higher
voting rights to apartment owner possessing larger apartments and
therefore such persons must contribute to the common area
maintenance charges proportionately.
4.2. She would submit that in furtherance to the decision of the
Respondent No.10 - Deputy Registrar of Co-operative Societies and the
Co-operative Court, an annual general meeting of the condominium
was held on 31.07.2022 for discussion about the maintenance
collection and pursuant thereto from August 2022 the condominium is
issuing maintenance bills on the basis of the percentage share of each
apartment owner in respect of the common area and facilities.
However the Petitioners did not challenge the minutes of the said
meeting and also did not pay the common area maintenance charges.
4.3. In view of her above submissions, she would submit that the
order dated 08.07.2021 passed by the Respondent No.10 - Deputy
Registrar of Co-operative Societies which is upheld by the Co-operative
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Court by order dated 13.05.2022, both being cogent and well reasoned
orders be upheld and confirmed and the Writ Petition be dismissed.
5. I have heard Mr. Damle, learned Senior Advocate for
Petitioners, Ms. Banerjee, learned Advocate for Respondent Nos.1 to 5
and Ms. Gavhane, learned AGP for State and with their able assistance
perused the record and pleadings of the case. Submissions made by the
learned Advocates have received due consideration of the Court.
6. In the present case, rights of the parties clearly stand
governed by the Deed of Declaration dated 29.07.2011. The Society is
registered as condominium of 11 buildings comprising 356 apartments
under the Apartment Act. Apartments are of 3BHK, 4BHK and 2BHK
areas, some with garden also. Copy of the registered Deed of
Declaration dated 29.07.2011 is appended at Exhibit 'E' - page No.150
of the Petition. There is a Supplementary Deed of Declaration dated
31.05.2017 which applies in respect of the additional construction. It is
in consonance with this Deed of Declaration that Agreement with
individual apartment holders have been entered into and executed
with each of the apartment owners and therefore they are bound by
the clauses contained in the Apartment Act with the Deed of
Declaration. Clause 7 of the Deed of Declaration dated 29.07.2011
reads thus:-
"7. All the units are capable of independent use and
occupation on account of them having their own exit to the
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common areas and facilities and leading to the main exist of the
property. The units will be owned by one or more persons, each
having a particular and exclusive property thereto, each
Apartment constituting a heritable and transferable immovable
property within the meaning of common law for the time being
in force in the state, and also undivided share in the general
and/or restricted common areas and facilitates of the building
as enumerated herein below necessary for their adequate use
and enjoyment and hereinafter referred to as the General
and/or restricted common areas and facilities, all the same in
accordance with the Maharashtra Apartment Ownership Act,
1970."
7. Thereafter the next relevant clause for determination of the
present lis between the parties is clause 8(XVIII) which reads thus:-
"XVIII. The share of the individual owner/s of Apartment in the
said project for the purpose of sharing income and common
expenses in the Limited and Common areas and facilities for
Apartment units in the said project shall be calculated based
upon the proportion of their Maintaince Corpus Fund (MCF)
contribution to the total MCF collected from all Apartment
owner/s by the promoter, as shown in the following table:
Type No of MCF/ Total MCF Each Unit's
Units Unit proportioned
Contribution in
MCF
2BHK 172 125,000 21,500,000 0.2528%
2BHK+Garden 12 150,000 1,800,000 0.3033%
3BHK 132 150,000 19,800,000 0.3033%
3BHK+Garden 12 175,000 2,100,000 0.3539%
4BHK 22 175,000 3,850,000 0.3539%
4BHK+Garden 2 200,000 400,000 0.4044%
49,450,000
The above mentioned way of sharing income and expenses is a
logical guideline provided by the Promoter to the Association of
individual owner/s of Apartments of the said project. The
Association is free to decide any other method/mode for the
same purpose that they think fit in future."
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8. The statutory provisions which apply to the present case are
Section 6 and Section 10 of the Apartment Act which read thus:-
"6. Common areas and facilities.
(1) Each apartment owner shall be entitled to an undivided
interest in the common areas and facilities in the percentage
expressed in the Declaration. Such percentage shall be
computed by taking as a basis the value of the apartment in
relation to the value of the property; and such percentage shall
reflect the limited common areas and facilities.
(2) The percentage of the undivided interest of each
apartment owner in the common areas and facilities as
expressed in the Declaration shall have a permanent character,
and shall not be altered without the consent [of majority] 4 of
the apartment owners expressed in an amended Declaration
duly executed and registered as provided in this Act. The
percentage of the undivided interest in the common areas and
facilities shall not be separated from the apartment to which it
appertains, and shall be deemed to conveyed or encumbered
with the apartment even though such interest is not expressly
mentioned in the conveyance or other instrument.
(3) The common areas and facilities shall remain undivided
and no apartment owner or any other person shall bring any
action for partition or division of any part thereof, unless the
property has been removed from the provisions of this Act as
provided in sections 14 and 22. Any convenant to the contrary
shall be null and void.
(4) Each apartment owner may use the common areas and
facilities in accordance with the purpose for which they are
intended without hindering or encroaching upon the lawful
rights of the other apartment owners.
(5) The necessary work of maintenance, repair and
replacement of the common areas and facilities and the making
of any additions or improvements thereto shall be carried out
only as provided herein and in the bye-laws.
(6) The Association of Apartment Owners shall have the
irrevocable right, to be exercised by the Manager or Board of
Managers, to have access to each apartment from time to time
during reasonable hours as may be necessary for the
maintenance, repairs and replacement of any of the common
areas and facilities therein or accessible therefrom, or for
making emergency repairs therein necessary to prevent damage
to the common areas and facilities or to another apartment or
4 These words were substituted for the words "of all" by Mah. 41 of 2018, dated 07-07-2018, s.
3, (w.e.f. 7-7-2018)
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apartments."
10. Common profits and expenses.-- 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."
9. From a conjoint reading of the aforesaid covenant in the
Deed of Declaration and the statutory provisions, it is prima facie seen
that the Deed of Declaration provides income and common expenses
based on the side of their respective purchased apartment. Section
6(1) of the Apartment Act prima facie provides for a basis and
computation of interest in the common areas and facilities of each
apartment owner and it categorically states that each apartment owner
shall be entitled to an interest in the common area and facilities for the
percentage expressed in the Declaration (emphasis supplied). Thus it
also states that such percentage shall be computed by taking as a basis
of the value of the apartment in relation to the value of the total
property. Section 6 of the Apartment Act further categorically provides
that the percentage of undivided interest of each apartment owner in
the common area and facilities as expressed in the Declaration (which
is the Deed of Declaration herein) shall have a permanent character
and the percentage of common undivided interest in the common area
and facilities shall not be separated from the apartment to which it
appertains.
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10. Thereafter Section 10 prima facie when read provides for
common profits of the properties to be distributed amongst and the
common expenses to be charged to the apartment owners according to
the percentage of the undivided interest in the common area and
facilities.
11. Thus combined reading of the aforesaid provisions and the
covenant in the Deed of Declaration which forms the basis of the MAO
Agreement each apartment owner, makes it clear that the undivided
interest in the common area and facilities is an interest which runs
with the apartment and upon transfer, the undivided interest, sale and
transfer together with the apartment irrespective of a specific covenant
to that effect in the Conveyance Deed.
12. In that view of the matter, the ascertainment of 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 member holding higher proportionate value and size (area)
of the apartment must contribute to the common area maintenance
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charges proportionately.
13. It is seen that in the Annual General Meeting of the
condominium held on 31.07.2022 pursuant to the order passed by the
learned Co-operative Court, the condominium has issued maintenance
bills on the basis of the percentage share of each apartment owner
with respect to the common area and facilities thereby giving effect to
the impugned order. 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. What is stated in the Deed of Declaration if not agreeable
to the Members of the condominium can only be altered and modified
by way of another registered instrument.
14. It is seen that Deed of Declaration dated 29.07.2011
specifically shows the right, title interest of individual owners of the
apartment in the said condominium for the purpose of voting in
therein of the association which is based on the proportionate area of
each unit to the total area of all the units. It discloses that the number
of flat and its total area and the total area in the flat. It is seen that
initially the apartment owner's had paid the lumpsum advance
maintenance amount to the Developer for a few years and therefore
this issue of unequal maintenance never cropped up. In the present
case the dispute is not about equal maintenance but applicability of the
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provisions of Section 10 of the Apartment Act in the facts and
circumstances of the present case.
15. It is seen from the record that occupants of smaller flats had
therefore approached the Deputy Registrar to levy charge of
maintenance as per Section 10 of the Apartment Act. Thus Deputy
Registrar considered the said issues which were also equally
considered by the Appellate Court while deciding the lis between the
parties. The Definition of common areas under Section 3(f), common
expenses under Section 3(g) and common profits under Section 3(h)
of the Apartment Act applied to the present case. 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.
16. The argument of the Petitioners that the Petitioners holding
larger apartment do not get any additional benefit or priority of
preference in the undivided share or do not 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
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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.
17. The reasons returned by the learned Appellate Court in its
judgment and order dated 13.05.2022 while answering point Nos.1
and 2 in paragraph Nos.32 to 62 of the said decision while upholding
the judgment and order passed by the Deputy Registrar, Co-operative
Society, Pune are cogent and well reasoned findings which deserve to
be accepted in accordance with the applicable statutory provisions and
the statutory Deed of Declaration dated 29.07.2011 in the present
case. 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 which squarely and admittedly applies to their
case. If Petitioners' case is to be accepted then the registered Deed of
Declaration would be a nullity in law. There is a clear distinction
between the Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale Management and Transfer) Act, 1963
and the Maharashtra Apartment Ownership Act, 1970 and rights of
members under the aforesaid two statutes as applicable for levy of
maintenance charges.
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18. In view of the above observations and findings, twin
judgment and order dated 08.07.2021 passed by the Deputy Registrar,
Co-operative Society, Pune and 13.05.2022 passed by the learned
Appellate Court are upheld and confirmed. Resulultantly Petition fails.
19. Writ Petition is dismissed.
[ MILIND N. JADHAV, J. ]
Ajay
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2025.08.04
11:29:37 +0530
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