From examining all the facts of your query I want to say that-
These cases are very common in various Courts of India. The maintenance charges have to be paid by all the owners, whether the apartments are occupied or not. The maintenance charges for unsold flats should be borne by the builder till they are sold, and thereafter by the purchasers. The general body may, if found necessary, take a decision on reduced or concessional maintenance charges on unoccupied or unsold flats and implement the same.
To my mind it is for the Society to make provisions in its bye-laws as to whether monthly maintenance charges are to be paid by all members or by those members only whose houses are occupied or to impose slightly less maintenance charges on members whose houses are vacant. I have dealt with such cases in Supreme Court. Some members do not realize that the maintenance charges levied by a housing society are not for the purpose of maintenance of the individual member’s house, but for the maintenance, repairs and reconstruction of the common infrastructure of the housing society. Maintenance of an individual house may be the responsibility of the individual member concerned. But, then there are many requirements for the society’s premises and many common services, such as society’s office, roads, passages, security arrangements, water supply, supply lines, sewer lines, lifts, staircases, telecom lines, etc., which are for the common use of all members of the society and which have to be taken care of by the society. I feel therefore, the society has to bear these expenses even if some individual members’ houses may be lying vacant and not occupied. Society cannot close down if a few houses are vacant. It is not the fault of the society if some members are keeping their houses vacant. Therefore, each member is generally required to pay the monthly maintenance charges to the society irrespective of whether or not his house is lying vacant or occupied.
Please understand that it is the duty of the members to regularly pay the maintenance charges to the society, otherwise the very purpose of having a co-operative society would be defeated since every member has to make his contribution towards the society in the spirit of cooperation. You may not pay the maintenance charges only if your society bye laws and agreement allows.
If certain members fail to pay their monthly charges, then initially it may be advisable to persuade and convince them about the requirement of paying those charges. If need be, notices can be issued to them. If the society’s bye-laws provide for charging of interest for late payment of charges, then the same may be levied. However, if certain members still fail to pay the monthly maintenance charges that are due from them, then the only option left with the society is to take legal action against them as per the law applicable in a particular state.
You may contact my secretary to connect with me for clarification.
I hope you and your family are safe and healthy. Stay home and be safe during Covid-19.
Advocate on Record & Amicus Curiae,
Supreme Court of India