Case Note & Summary
The writ petition before the Bombay High Court arose from a dispute over maintenance charges in Treasure Park, a registered condominium of 11 buildings (A to K) comprising 356 apartments governed by the Maharashtra Apartment Ownership Act, 1970. A Deed of Declaration dated 29.07.2011 and a Supplementary Deed of Declaration dated 31.05.2017 regulated the rights and obligations of apartment owners. According to the petitioners, the general body had resolved to levy maintenance charges equally on all apartment owners irrespective of flat area or undivided share, with only the sinking fund contribution varying by undivided share or area. On 11.11.2020, respondent nos.1 to 5, also apartment owners, filed a complaint before respondent no.10, the Deputy Registrar of Co-operative Societies, alleging that the equal levy violated Section 10 of the Apartment Act. After issuing notice to the chairman and secretary and receiving their reply dated 28.12.2020, the Deputy Registrar passed an order dated 08.07.2021 directing the condominium to levy maintenance charges proportionate to the undivided share of each apartment owner in terms of Section 10. The petitioners, who owned 3BHK and 4BHK apartments, were informed of this order by a notice board display on 14.07.2021. They challenged the order by filing Appeal No.01 of 2021 before the Co-operative Court, Pune, under Section 16B of the Apartment Act. The Co-operative Court dismissed the appeal by order dated 13.05.2022, leading to the present writ petition. The petitioners primarily contended that the Deputy Registrar lacked jurisdiction to pass the order because Section 16A of the Apartment Act empowers only the 'Registrar', as defined in Section 2(s), to adjudicate violations. They argued that no specific delegation of power under Section 16A had been made in favour of the Deputy Registrar, and the general delegation under Section 3 of the Maharashtra Co-operative Societies Act, 1970 could not be implied. They relied on Marathwada University v. Seshrao Balwant Rao Chavan, (1989) 3 SCC 132 and Sahni Silk Mills (P) Ltd. v. Employees' State Insurance Corporation, (1994) 5 SCC 346 to invoke the maxim delegatus non potest delegare. Petitioners also submitted that the order violated natural justice as they were not heard before the decision affected their rights. On merits, they argued that maintenance charges covered common amenities enjoyed equally by all, and Section 10 refers to percentage of undivided interest in common areas and facilities, not to larger apartments having higher interest. They relied on Venus Co-operative Housing Society v. Dr. JY Detwani, 2002 SCC OnLine Bom 1457, which held that common amenities are enjoyed equally and large flat holders cannot be forced to pay more. Respondents countered that State Government notifications dated 11.09.2012 and 24.11.2021 conferred all powers of the Registrar under the MCS Act on the District Deputy Registrar of Pune City, and thus the order was within jurisdiction. They pointed to clauses 7 and 9(xviii) of the Deed of Declaration, which provided for undivided share in common areas and sharing of expenses based on apartment size, and argued that larger apartments had higher voting rights. They also submitted that an annual general meeting held on 31.07.2022 had decided on proportional billing from August 2022, and the petitioners did not challenge the minutes. The court recorded that rights were governed by the Deed of Declaration and began examining clause 7, but the extracted text ends before the final reasoning and decision.
Headnote
A) Administrative Law - Delegation of Powers - Doctrine Delegatus Non Potest Delegare - Maharashtra Apartment Ownership Act, 1970, Sections 2(s) and 16A; Maharashtra Co-operative Societies Act, 1970, Section 3 - Petitioners argued that the Deputy Registrar passed the order without jurisdiction because Section 16A confers adjudicatory power only on the 'Registrar' as defined under Section 2(s) of the Apartment Act, and no express delegation under the Apartment Act existed. Respondents relied on State Government notifications dated 11.09.2012 and 24.11.2021 under Section 3 of the MCS Act to argue all powers of Registrar were conferred on the District Deputy Registrar. The court recorded the AGP's statement that no specific delegation under Section 16A existed and considered precedents on sub-delegation. (Paras 3-4) B) Property Law - Apartment Maintenance Charges - Interpretation of Section 10 and Deed of Declaration - Maharashtra Apartment Ownership Act, 1970, Section 10; Deed of Declaration dated 29.07.2011, Clauses 7 and 9(xviii) - Petitioners argued that Section 10 requires charges according to percentage of undivided interest in common areas and facilities, and the Deed of Declaration does not give larger apartment holders higher interest in common areas; maintenance covers amenities enjoyed equally by all. Respondents argued clause 9(xviii) provides sharing of expenses based on apartment size and larger apartments confer higher voting rights. The court examined clause 7 of Deed of Declaration and Section 10. (Paras 3.3, 4.1, 6) C) Natural Justice - Right to be Heard - Audi Alteram Partem - Maharashtra Apartment Ownership Act, 1970, Section 16A - Petitioners argued that the Deputy Registrar decided the issue of maintenance practice without giving audience to them, affecting their rights as owners of 3BHK and 4BHK apartments. The court noted this submission but extracted text ends before final determination. (Para 3.2) D) Cooperative Law - Effect of General Body Resolutions and Subsequent AGM - Maintenance Billing Change - Maharashtra Apartment Ownership Act, 1970, Sections 10, 16B - Respondents submitted that after the Deputy Registrar's order, an AGM on 31.07.2022 decided proportional billing from August 2022, and petitioners did not challenge the minutes. Petitioners relied on Venus Co-operative Housing Society v. Dr. JY Detwani (2002 SCC OnLine Bom 1457) to argue common amenities are enjoyed equally and larger flat holders cannot be forced to pay more. The court was to assess consistency of general body resolutions with Section 10. (Paras 3.3, 4.2)
Issue of Consideration
Whether the Deputy Registrar of Co-operative Societies had jurisdiction to pass order dated 08.07.2021 under Section 16A of the Maharashtra Apartment Ownership Act, 1970 absent specific delegation; whether maintenance charges must be levied equally or proportionately to undivided share under Section 10 and the Deed of Declaration; whether principles of natural justice were violated.
Law Points
- Section 16A of Maharashtra Apartment Ownership Act
- 1970 empowers only the Registrar to adjudicate violations
- no specific delegation to Deputy Registrar under Apartment Act
- general delegation under Section 3 of Maharashtra Co-operative Societies Act
- 1970 cannot be implied
- delegatus non potest delegare
- maintenance charges under Section 10 must be according to percentage of undivided interest in common areas and facilities
- common amenities enjoyed equally by all apartment owners irrespective of flat area
- natural justice requires hearing affected apartment owners before order changing maintenance practice
