Why a 1BHK and a 4BHK can pay the same maintenance, and the 10% cap on non-occupancy charges

Rules as of 13 October 2026.

Two questions fill society WhatsApp groups: why does the owner of a small flat pay the same service charge as the owner of a large one, and how much can a society charge when you rent your flat out? The Bombay High Court has spoken on both, and one of the answers depends on what kind of building you live in.

Co-operative society: size alone is not a reason to charge more

In Sunanda Rangnekar v. Rahul Apartment No. 11 CHS (Bombay High Court, 10 August 2005) the court described an earlier case, Venus CHS v. J.Y. Detwani, in which a society charged different maintenance rates by flat size. The court held that resolution arbitrary and unreasonable, noting that the society's services were enjoyed by all members equally, and that a general body majority cannot pass an arbitrary resolution. In Rangnekar itself, a society charged a shop ₹32,000 a year against ₹8,000 for each flat. The court said it could not charge the shop twice the residential rate when no extra service or cost was shown.

Two limits matter. First, the court accepted that property tax can differ by area, because it is computed on each unit's area. Service and maintenance charges are a different head. Second, I could not read the Venus judgment or any state order itself. Reports mention a state direction on equal charges, but they give different dates (26 May 1999 and 29 April 2000 both appear), so I am not citing a date. I also could not confirm a specific model bye-law number from a primary source.

Worked example (illustrative)

A society's monthly service cost is ₹6,00,000 for 100 flats. Split equally, each flat pays ₹6,000, whether it is a 1BHK or a 4BHK. If the society tried to bill by area and the 4BHK is three times the size, that owner would be charged about three times as much. Under Rangnekar and the Venus reasoning, a rate difference with no difference in service is open to challenge. Special items that really are used unequally, such as a lift only some flats use, are a separate question that I did not find decided.

Condominium under the Apartment Ownership Act: size does count

The result is different where the building is a condominium under the Maharashtra Apartment Ownership Act, 1970. In Sachin Malpani v. Nilam Patil (4 August 2025, Justice Milind Jadhav) the court upheld an order that common charges must follow each owner's undivided interest. Section 10 of that Act charges common expenses according to that percentage, and the deed there listed 0.2528% for a 2BHK up to 0.4044% for a 4BHK with garden. A general body resolution for equal charges could not override the Act. The High Court also distinguished the 1970 Act from MOFA (para 17).

So the answer to "should we pay equally?" starts with: is your building a co-operative society or a registered condominium? Your deed of declaration or bye-laws will say.

The 10% cap on non-occupancy charges

Non-occupancy charges are what a society levies on a member who does not live in the flat, for example when it is let out. They come from a State Government order of 1 August 2001 under section 79A of the Maharashtra Co-operative Societies Act, 1960. In Mont Blanc CHS v. State of Maharashtra (Bombay High Court, 2 March 2007) the order's terms are recorded as follows:

• Non-occupancy charges should not be more than 10% of service charges, excluding municipal taxes (para 11(b)).
• The order applies to all residential and commercial premises (para 11(d)).
• If a society has not amended its bye-laws, it still cannot assess more than the maximum limit (para 11(e)).
• The earlier order of 9 March 1995 was cancelled (para 11(a)).

The court found the order was not arbitrary and dismissed the challenge (paras 17-18). It also held that the family-member exemption covers family such as married daughters and grandchildren, but not sons-in-law or brothers-in-law (para 18). In Matru Ashish CHS v. State of Maharashtra (5 October 2011) another bench held the same order binding. In Rangnekar the court repeated that such charges cannot exceed 10% of the maintenance charges for the flat. In Vallabhnagar CHS (3 February 2026) the court said a society cannot override binding section 79A directions, and that an amount above the government ceiling is not "dues" the society can recover. That judgment does not itself state the 10% figure, and I found no later order that replaced it.

One question was left open in Mont Blanc (para 15): whether premises let to banks, multinationals and similar tenants under the Maharashtra Rent Control Act, 1999 should be excluded from the cap. The court referred that to the State Government, and I did not find an answer. If you let to a company, ask your advocate how the society is treating it.

Worked example (illustrative)

Item	Amount
Monthly service charge (excluding municipal taxes)	₹4,000
Maximum non-occupancy charge at 10%	₹400 a month, ₹4,800 a year
A society asks 25% (₹1,000)	₹600 a month above the cap, ₹7,200 a year

Mistakes to avoid

• Assuming every society works the same way: check whether you live in a co-operative society or a condominium
• Paying a "tenant fee" or "NOC fee" that is a non-occupancy charge under another name without checking it against the 10% ceiling
• Mixing property tax, which can follow area, with service charges
• Challenging a bill without the bye-laws and the general body resolution in hand

This explains court rulings and is not legal advice. Take an advocate's view before disputing a bill.