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Can societies levy higher differential maintenance charges?

In various societies, the managing committee often levies differential maintenance charges. Some differences are based on differences in plot sizes, while others are based on the difference of ownership. However, is it legal to levy such charges? Various courts have observed that when the facilities/amenities/maintenance services provided are equal for all the members, the charges levied for the same should also be equal.

image credits- The Courier

1. Venus Co-op. Housing Society and Ors. v. J.Y. Detwani and Ors. (Decided on 30.07.2002)

- In the case where society changed the system of charging maintenance from its flat owners from flat-wise basis to flat-area basis, the Hon’ble High Court of Bombay held that the decision was totally unreasonable, arbitrary and oppressive as the amenities, facilities, and services rendered to all of them were the same and it was not that the large or big flat holders were getting more or higher or greater benefits so that they should be coerced to pay more.

- The general maintenance comprises salary of staff, expenses for security of the society, life maintenance, common electricity charges, internal road lighting, common passage maintenance, charges for lifting water from the tank and expenses of postage. All the services are enjoyed by all the members equally and therefore, there was no reason for the society to have made the large flat holders to pay more.

- The General Body is Supreme; however, it cannot pass arbitrary and unreasonable resolutions merely because it is Supreme.

 

2. Satyagrah Chhavni Cooperative House Society Ltd. v. Harendra V. Joshi and Ors. (Decided on 05.04.2013)

- In this case decided by the Hon’ble Gujarat High Court, the issue was regarding the maintenance charges per sq. yards instead of per member. This led to payment of unequal maintenance charges by different members of the society. The court held that each member of the society is getting equal facility and it would be completely discriminatory and irrational to increase maintenance charges on members who have larger plots considering the facilities being provided to each of the members are the same.

- The court also held that if any decision even by majority is found to be illegal, arbitrary, discriminatory or improper in any manner, shall always be subject to scrutiny by competent authority provided under the statute.

- While dismissing the appeal, the court held that since the issue of maintenance is recurring, the society may increase the maintenance charges considering their cost of maintenance against required amenities. The same should be done strictly and in accordance with law without any arbitrariness or discrimination amongst the members on any count.   

 

3. Sunanda Janardhan Rangnekar v. Rahul Apartment No. 11 Co-Operation Housing Society Ltd. (Decided on 10.08.2005)

- In this case the society consisting of 29 members, the general body was issuing bills by way of society charges/maintenance charges to all the members at a rate of Rs. 8000/- p.a. having residential premises and was issuing bills to the petitioner at the rate of Rs. 32,000/- p.a. in respect of her having shop/commercial premises. The general body held that they were charging Rs. 16,000/- p.a. as Maintenance Charges and Rs. 16,000/- as Non-Occupancy Charges. The general body of the society decided to levy society charges/maintenance charges in respect of commercial premises at twice the rate of charges for the residential premises.

- The court held that there was no proof that Rs. 32,000/- has been divided into two parts, i.e. Maintenance Charges and Non-Occupancy Charges. All the amount charged in the name of Maintenance Charges.

- The Hon’ble High Court of Bombay held that there was no material to show that any additional services were provided to the petitioner by reason of her being the holder of commercial premises. The society was not entitled to levy society charges/maintenance charges from commercial premises at twice the rate that of a residential premise.

- The court held that it is respectful to the arguments and conclusions made by the court in the case of Venus Co-op. Housing Society and Ors. v. J.Y. Detwani and Ors., where levying differential charges was seen as arbitrary and unreasonable. 

 

Even though there should be no different charges as per the cases propounded above, various societies still do so by mentioning such rates in the society bye-laws. The members of such society should raise their voices against such levy and ask for amendment of such society bye-laws. If the same is not agreed upon, these members can file a complaint to the concerned Registrar of the Co-operation Department of the State. 


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