Delhi High Court Sets Aside Municipal Corporation Order Directing Pacific Mall Not To Charge Parking Fee From Visitors

The Delhi High Court has set aside an order issued by the South Delhi Municipal Corporation (SDMC) in 2018 directing city’s Pacific Mall not to charge parking fee from the visitors.

A division bench of Justice Vibhu Bakhru and Justice Amit Mahajan observed that the charging of parking fee by the mall does not violate the Unified Building Byelaws for Delhi, 2016, or the Master Plan for Delhi, 2021.

The bench allowed Pacific Mall’s appeal and set aside a single judge order passed in February 2020 which upheld the civic body’s order.

“We are unable to concur with the view of the learned Single Judge that charging of parking fee runs contrary to the spirit of the Building Byelaws. As stated above, the scope of the Building Byelaws is limited to enforcing the norms for buildings and its use in accordance with the MPD-2021,” the court said.

It added that merely because the concerned authorities are finding it difficult to enforce traffic laws is clearly no ground for the Municipal Corporation of Delhi (MCD) to intrude into functioning of a commercial enterprise and insist that parking be provided free of cost.

“As noted above, Mr. Arora (Counsel for SDMC) is unable to point out any provision of the Building Byelaws (other than stating that parking the spaces are not included in FAR), which would entitle MCD to direct PDCL to provide parking space free of charge. This would clearly amount to expropriating the appellant’s property without the authority of law,” the court said.

It was the MCD’s case that it is impermissible for Pacific Mall to charge parking charges as the parking areas are not included for calculating permissible Floor Area Ratio (FAR) of the commercial complex.

MCD claimed that since the parking space was not included in FAR, the said area could not be commercially exploited or brought to any commercial use.

On the other hand, Pacific Mall contended that the parking spaces were not included in FAR by virtue of the Building Byelaws which prescribe the extent of permissible construction, which in turn is dependent on the total area of the plot on which a building is constructed.

It further claimed that the exclusion of parking spaces from the FAR did not proscribe collection of charges in respect of vehicles parked at the parking space.

Allowing the plea, the bench ruled that the Building Byelaws relate only to the norms and standards for construction of buildings and have no relation if the permissible use of such building yields any monetary benefit or not.

“The field covered by the Building Byelaws relates to building norms and standards for specified buildings in permissible zones. The said byelaws do not control or monitor any aspect of the use of building. Thus, if the buildings are constructed in accordance with the Building Byelaws and are used in accordance with the permissible use, the same are duly satisfied,” the court said.

It added, “MCD certainly would not be concerned with the lease or license conditions of a retail shop in a District Court Complex or whether operation of a library in the said complex is remunerative. So long as the activities carried out in a District Court Complex fall within the scope of the permitted activities, the development control norms and the Building Byelaws would be duly complied with.”

Noting that parking is one of the permitted activities in basement and areas earmarked for the said purpose in the Pacific Mall, the bench said that so long as the areas in question are used for parking of vehicles, it would not be open for MCD to claim that the area has been misused for the reason that the owner is charging fee for permitting parking in the said premises.

“It was also contended by Mr. Arora that if PDCL is permitted to charge parking fees from the persons visiting the Pacific Mall, they would tend to park their vehicles on the margin of the road, which would lead to traffic congestion. We are not impressed by this contention. It is clearly for the concerned authorities to ensure that vehicles are not parked in no parking zones,” the court said.

Counsel for Appellant: Mr Sudhir Nandrajog, Senior Advocate with Ms Meenakshi Jha and Mr Neeraj Kumar, Advocates

Counsel for Respondents: Mr Ajjay Arora, Mr Kapil Dutta and Mr Vansh Luthra, Advocates for R-1; Ms Teena Srivastava, Advocate for R-2

Title: M/S PACIFIC DEVELOPMENT CORPORATION LTD. (CONCESSIONAIRE OF DELHI METRO RAIL CORPORATION) v. SOUTH DELHI MUNICIPAL CORPORATION & ANR

Citation: 2023 LiveLaw (Del) 1152

Click Here To Read Order