The maintenance charges in a condominium must be proportionate to the undivided interest of each apartment owner in common areas and facilities, as governed by the Apartment Act.

MILIND N. JADHAV, J.

1. Present Writ Petition takes exception to order dated 13.05.2022 passed by the Co-operative Court, Pune by which Appeal No.01 of 2021 filed by Petitioners under Section 16B of the Maharashtra Apartment Ownership Act, 1970 (for short “the Apartment Act”) was dismissed.

2. Brief facts germane for adjudication of the present Petition are as follows:-

2.1. The subject property from which dispute in the present Petition emanates is ‘Treasure Park’ which is a registered condominium of 11 buildings namely building ‘A’ to building ‘K’ comprising of 356 apartments registered under the Apartment Act. A Deed of Declaration dated 29.07.2011 was executed and registered subjecting the property to the provisions of the Apartment Act and also a Supplementary Deed of Declaration dated 31.05.2017 was executed and registered for additional construction. Deed of Apartment has been executed in consonance with the Deed of Declaration with each apartment owner.

2.2. According to Petitioners, in the condominium as per the resolutions passed by the General Body, maintenance charges were charged equally to all apartment owners irrespective of the area of their flat or their undivided share and only the contribution towards the sinking fund varied as per the undivided share or area of the flat.

2.3. On 11.11.2020, Respondent No.1 to 5 who are also apartment owners in the said condominium filed complaint with the Respondent No.10 - Deputy Registrar of Co-operative Societies alleging that the maintenance charges levied by the condominium are in violation of Section 10 of the Apartment Act. Thereafter Respondent No.10 issued notice to the Chairman and Secretary of the condominium who filed their reply dated 28.12.2020.

2.4. On 08.07.2021, Respondent No.10 - Deputy Registrar of Co- operative Societies passed order dated 08.07.2021 directing the Treasure Park condominium to levy maintenance charges proportionate to the undivided share of the apartment owners in terms of Section 10 of the Apartment Act.

2.5. Petitioners who are members of the Treasure Park condominium were intimated about the said order dated 08.07.2021 by the Central Committee of the condominium by displaying the said order on the notice board of the condominium on 14.07.2021. Petitioners therefore approached the Co-operative Court, Pune to challenge the order dated 08.07.2021 by filing Appeal No.01 of 2021 which was rejected by order dated 13.05.2022 which is impugned in the present Petition.

2.6. Hence the present Petition.

3. Mr. Damle, learned Senior Advocate for Petitioners would at the outset submit that Section 16A of the Apartment Act empowers the ‘Registrar’ to adjudicate upon the issue pertaining to violations under the Apartment Act. He would submit that ‘Registrar’ is defined under Section 2 (s) of the Apartment Act as a person appointed as a Registrar under the under the Maharashtra Co-operative Societies Act, 1970 (for short ‘MCS Act’). However he would submit that in the present matter, the order dated 08.07.2021 is passed by Respondent No.10 who is the Deputy Registrar of Co-operative Societies and not the ‘Registrar’ as envisaged under the Apartment Act which is the applicable statute in the present case. He would submit that the order dated 08.07.2021 passed by Respondent No.10 – Deputy Registrar of of Co-operative Societies is sans jurisdiction and amounts to nullity.

3.1. He has drawn my attention to order dated 19.06.2024 passed by this Court wherein this Court has recorded the statement made by the learned AGP that there is