No higher maintenance for bigger flats: Court

By Sohail Khan 25 August 2026, 12:35 pm

Synopsis

Unlike property tax, maintenance cannot be charged at a higher rate for bigger flats and shops, explains the Maharashtra Co-operative Appellate Court and gives relief to flat and shop owners from discriminatory higher maintenance. Read the article.

Image for Housing societies cannot charge higher maintenance for bigger flats and shops based on area, rules Maharashtra Co-operative Appellate Court — Housing society charged higher maintenance for bigger flats and shops based on area, Maharashtra Co-operative Appellate Court says society can't do this (AI generated representative image)

Justice V. R. Kulkarni of the Maharashtra Co-Operative Court recently ruled that housing societies can’t charge higher maintenance fees from owners of larger flats and shops. She also pointed out that housing societies can’t create different maintenance charges just based on the size of the property or because some units are commercial, unless there is a solid legal reason for doing so.

This judgement came after a case was filed by unhappy residents of a housing society in Worli, Mumbai including Mr Shanbhag, Dr Warke and others. They argued that the society should split the common maintenance charges equally among all members. Instead, the housing society has been calculating these fees based on the size of each flat or shop, with commercial units facing higher charges .

Mr Shanbhag, Dr Warke and others claimed that the commercial units were being charged at twice the rate of residential ones and also that the society was charging for water connections even when some residents didn’t have one. The angry residents said that they should not be made to bear the water charges of the entire Society.

On top of the maintenance and water charges issue, the unhappy residents also said that the society is poorly managed and the process of awarding major repair contracts needs to be looked into.

The housing society countered their claim by saying that the residents who filed this court case had defaulted on payment of maintenance dues. While the society acknowledged the aggrieved residents as its members and its own status as a registered cooperative housing society, it refuted the claims of illegal or arbitrary billing.

As for the different maintenance charges charged for shops, the society contended that shops are governed by separate rules for allotment, management and maintenance. According to the society, these rules were accepted and signed by the concerned allottees, creating a contractual arrangement between the society and these allottees.

The society denied the allegations regarding water charges and mismanagement. For major repairs, they claimed that transparency was maintained and quotations invited before awarding any repair work.

On August 10, 2026 the housing society lost the maintenance case as the court ruled in favour of the aggrieved residents. But regarding the other issues, the court ruled in the society’s favour.

Also read: Owning bigger apartment means higher maintenance payment? Here's what Bombay High Court says

Why did the aggrieved residents win the court case?

Heena Chheda, Partner, Economic Laws Practice, said to ET Wealth Online that the Bombay High Court has already settled the issue of higher maintenance in Venus Co-operative Housing Society Ltd. v. Dr. J.Y. Detwani.

In that high court case as mentioned above, Chheda tells that the court held that where all members receive the same common services and amenities, a housing society cannot charge a member higher common maintenance merely because the premises are larger or used as a shop. Charges such as property tax, sinking fund or major repairs may, however, be calculated separately where the law or the society’s registered bye-laws permit it.

Thus when the same issue of higher maintenance was brough before the Maharashtra Co-Operative appellate court the court said that the housing society has produced no evidence that Shop No. 8 received additional common services or facilities, or that its commercial use caused the Society to incur additional maintenance expenses. The Society also failed to prove the separate rules on which it relied to justify the higher charges. Hence the court found that the Society had failed to justify charging shop owners higher common maintenance.

Chheda says: "The co-operative appellate court therefore directed the Society to recalculate the common maintenance and service charges on the same lawful basis applicable to similarly situated members, after adjusting the amounts already paid. The relief was limited to common maintenance and service charges. It did not affect property tax, sinking-fund contributions, major-repair charges, parking charges or other amounts lawfully calculated on a separate basis."

Also read: Can housing societies deny common facilities to smaller flats because of lower maintenance fees? Know what the law says

Maharashtra Co-Operative appellate court order and discussion

A summary of the Maharashtra Co-Operartive Appellate Court judgement:

Big flats do not get proportionately greater services to justify a higher maintenance fee

The Maharashtra Co-Operative Court said that the Bombay High Court in the case of Venus Co-operative Housing Society Ltd. v. Dr. J. Y. Detwani and others, 2002 SSC OnLine Bom 1457, had ruled, in substance, that where the services and amenities maintained by the society are common and enjoyed by all the members alike, a member holding a larger flat does not, merely for that reason, receive proportionately greater services to justify a higher levy of common maintenance charges.

The Maharashtra co-operative court said that this Bombay High Court decision has subsequently continued to be treated as governing the distinction between common maintenance and charges dependent on the area or in nature of particular premises.

In another case (commercial property) of Sunanda Janardan Rangnekar v. Rahul Apartment No.11 Co-operative Housing Society Ltd., 2006 (1) MhL.J. 734, the Bombay High Court distinguished property tax, which may legitimately vary according to area or assessment, from charges for common services rendered by the society.

In that case, the opponents did not submit any proof to the court showing what additional services or expenditures are incurred for commercial units that warrant a higher maintenance fee.

In light of these two cases, the Maharashtra Co-operative court said that the bills given to them show that the housing society in this case itself distinguished between respective premises while determining maintenance charges. The court also observed that the figures in the maintenance bills do not disclose a simple uniform per-square-foot formula.

Housing society did not enter witness box to explain why they charged different maintenance charges

The court said that it is material to note that the housing society did not enter the witness box to explain the basis upon which the different maintenance charges were fixed.

The Maharashtra co-operative court said: “No evidence has been adduced to show that Shop No.8 receives any additional common service or facility, or that the society incurs additional maintenance expenditure merely because the premises constitute a shop.”

Thus the court ruled that the housing society’s written statement about separate rules governing allotment, management and maintenance of shops has not been substantiated by examining any witness or proving the factual foundation upon which such differential common maintenance is claimed.

In light of these circumstances, the court said that the society cannot sustain differential common maintenance/service charges just based on the size or commercial nature of the premises, in the absence of any proved legally permissible basis for such differentiation.

This conclusion, however, did not extend to every part of a maintenance bill. property tax, sinking fund, major repair contribution, parking charges or other charges governed by their own statutory or bye-laws, which cannot automatically be equated with common service charges.

The court explained that this distinction is borne out even by the documents on record. The legality of a separately constituted area-linked levy cannot be determined merely by applying the rule governing common maintenance charges. No blanket declaration against every area-linked component was therefore warranted in this particular case.

Regarding other allegations and grievances of the residents, the court said that the claim regarding water charges lacked specific evidence and the the information provided does not prove the allegation of compound interest to the level needed for a conclusive decision.

As a result, the affected residents partly won the case on the limited issue of higher maintenance fee in the Maharashtra Co-Operative Court.