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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.
Adv. R. P. Rathod.
States 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superseded or reversed,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.
Adv. R. P. Rathod
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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Adv. R. P. Rathod
emphasizes that "Does
a watchman,
Sweeper,
Manager, accountant,
auditor, charge the CHS
per flat or per
area of the flat?
Then why should
a member
who has a bigger flat
in the CHS
end up paying
more maintenance?
This is a clear oppression on the minority by the majority a
society can pass
any resolution,
but the resolution
so passed should
be just and fair
to all the members
involved. Members
owning smaller flats
cannot dictate terms
just by virtue
of them being
in the majority
he says.
However
many societies contend
that since members
have paid
the purchase
price according to the size
of the flat,
maintenance should
also be charged
in a similar ratio.
However, it's not
an easy task
to get a legal sanction
for this concept.
However
he further states
that there are few charges
which are to
be levied
on size of the flat
like Municipal Taxes,
etc.
Adv. R. P. Rathod.,
further states
that the byelaws
of any society
supersede resolutions passed
by the society.
If any resolution
contravenes the
rules in the bye-laws,
such a resolution
cannot be upheld.
Bye-laws are a contract between a member and the
society.
To
counter this,
many CHS
have even tried
to amend
the model bye-laws
before adopting
them, but have
met with rejection.
If any CHS wants
to charge their members
according to the size
of their flats,
it would have
to pass a resolution
of their intent
to amend
the model bye-laws
and send
it to the Registrar,
who may
or may not allow
the same
concludes Adv. R. P. Rathod.
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