Dear Sir, Please help me with expert’s advice and guidelines on below issue- I live in an apartment in Bangalore, Karnataka and basically we have different sizes of flats- 1 BHK - sizes varies from 700 to 900 SQFT - Number of flats- ~8-10 2 BHK - sizes varies from 1000 to 1200 SQFT - Number of flats ~150+ 3 BHK - sizes varies from 1200 to 1600 SQFT - Number of flats ~30-40+ Monthly maintenance that is being collected based on per SQFT. However the facility used by residents are same, below are major facility and the services that is availed by each owner irrespective of the size of their flat equally- 1. Common Area Maintenance - Size of common area remains same for each flat , since common area is equal for each owner to use, all the facility availed by each flat owner on every floor remains the same. 2. Power Backup inside the flat is same for each flat irrespective of the size of the flat. 3. Car Parking remains the same size for each flat size. 4. Water charges are divided equally i.e. (total expenses on drinking water / No. of flat) 5. STP Expenses are divided equally i.e. (total expenses on STP / No of Flat) 6. Security Services – again, remains the same for each flat sizes. 7. Garden Maintenance – again no difference for the flat size. 8. Children Play area, gym and Swimming pool – No extra facility given to big size flat owner. Same for each flat size. Overall, every penny, which is spent on maintaining the apartment is availed by each flat owner equally. In this case, the big size flat owners are forced to pay too much of monthly maintenance payment whereas the services availed by each flat owners are the same. And small size flat owners enjoy the same services with less maintenance expenses. However, in the sale deed and bye law, it’s mentioned that all these expenses will be pro-rated (attached screen shot of byelaw) Please suggest if there is a way this can be rectified, is there a law clearly define that these expenses are borne by all the flat owners equally because the service availed by every individual are same. Was going through the below (order from Bombay High court) link and looks like this similar issue that we have since the service availed by each flat owner equally, they are supposed to pay equal maintenance in spite of their flat size. http://law-india.com/forum/index.php?p=/discussion/46/can-coop-housing-society-charge-maintenance-on-per-sq-ft-instead-of-per-flat-/p1 Note:- 1. while buying the flat I did not have liberty to modify any clause in sales dead as builder aks only name, father name,age, pan number and rest of things he took care and maintenance sqft clause comes bydefault on it. 2. Bye Law was signed by only approx. 50-55% of the members, and it was made by first Management committee based on their own view. Question: 1. Is this fair for the big size flat owner to pay more money where as the services are availed equally by small size flat owners. 2. Is there any judgement that took place where it was ordered to charge owners equally for the maintenance as the the serivces availed by each individual equally? if thats the case... can you please help me with judgment order/case number etc... Below points on code of conduct, written in bye-law on Maintenance- Chapter VI - Code of Conduct- Point no-2) Every member shall from time to time pay monthly or periodic assessments or any other payments as recommended by Managing Committee till such time revoked by the subsequent Managing committee which may include monthly payments to the general Operating Fund, Corpus Fund and Sinking Fund, if any for periodic repair, renovation, replacement etc. The assessment may also include an insurance premium for a policy to cover the cost of repair of damages caused by hurricane, fire, earthquake or other hazard or calamity. Point no -3) The assessment shall be made pro-rata according to the area of the apartment vis-a-vis the total area of the land on which the building has been constructed. All such assessment shall be paid within the prescribed time and place. If anyone fails to do so, an actin shall be taken against the said member by the managing committee. Please help me with your advice and suggest the go forward. Thanks a lot for your help in advance.
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1) as per bye laws adopted by society maintenance charges would depend on area of the flat
2) it is absolutely unfair since common area facilities are enjoyed equally by all members
3) property taxes , insurance and water charges can be on area of flat
4) however in respect of common area facilities maintenance should be equal for all members
5) request managing committee to place issue in agenda of AGM
the Supreme Court recently in J.N. Chaudhary Vs. State of Haryana (2014) 11 SCC 249 held that in judging the functioning of a Cooperative Society where the democratic process of election is adopted in pursuance to the Rule and a collective decision is taken by majority of the members of the entire body expressed in terms of a resolution passed by the General Body, then the same cannot be ignored and bypassed at the instance of handful of members. It was held that if a decision is taken by majority in terms of the Rule, it cannot be overruled by minority even on the ground of mala fide or fraud unless established through strict proof of evidence. It was reiterated that mala fide is always easy to allege but difficult to prove.
17. In fact, the Supreme Court in the B.D. Kaushik judgment (supra) also held that no citizen has the fundamental right to become a member of a Cooperative Society; his right is governed by the provisions of the statute; so the right to become or to continue being a member of the Society is a statutory right and his being a member of the society is subject to the Act, Rules and Bye-laws applicable from time to time. It was thus held that no individual member is entitled to assail the constitutionality of the Act, Rules and the Bye-laws as he has his right under the said Act, Rules and Bye-laws and is subject to its operation and "the stream cannot rise higher than the source
in Venus Co-operative Housing Society Ltd. v. Dr. J.Y. Detwani reported in 2004(5) Mh.L.J. 197 = 2003(3) All. M.R. 570.
6. In case of Venus Co-operative Housing Society the flats of different sizes, 284 small flats with two bedrooms and 39 large flats with four bedrooms. The society passed a resolution levying the different maintenance charges as per the area of the flats and issued a circular to that effect to members. Disputants who were the holders of the larger flats challenged the circular as also the resolution by filing a dispute under Section 91 of the Act before a co-operative Court. The co-operative Court declared the resolution of the society to be illegal and not binding on the disputants. The decision of the co-operative Court was confirmed by the appellate tribunal. The order was impugned by the society by way of a Writ Petition. This Court held that the resolution of the society levying differential charges on the basis of the area of the flats was arbitrary, unreasonable, without any rational and without any source of power. It held that services of the society were enjoyed by all the members equally and there was no reason for the society to make the large flat holders pay more on the basis of the area of the flats. It held that though the supremacy of the general body cannot be doubted, even the supreme general body had to pass resolutions considering all facts and circumstances of the matter. The general body cannot pass arbitrary and unreasonable resolutions merely because it is supreme and it has a large majority in favour of any issue on the agenda.
The point No.3 mentioned in your question has an answer to your question.i.e., the charges are to be made on pro-rata basis.
In the link provided by Ibrahim Deshmukh, Legal Consultant is giving his own opinion which is not law. The decision made by the society is on the basis of the majority votes in favor of the resolution moved before it, so there is no arbitrariness in it.
If you are agitating this decision, you may issue a legal notice stating that this unfair and need to be levied equally to all the owners and should not be charged on Sq. ft basis. Wait for the reply and then decide about further course of legal action on it.
