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 Until the judgment is superseded or reversed, societies will have a tough time charging higher amount of maintenance.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.
This concept was fine with buildings having equal-sized flats, but market conditions, made, it more practical for builders to offer a number of combinations to suit different budgets and requirements. Typically, such buildings would have more units of flats having smaller area and fewer units of flats having larger area. This led to a scenario where the majority of the members (having smaller-sized flats) would pass a resolution stating that the maintenance charges would be levied on an area-wise basis and not equally.
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.