The Delhi High Court in the case M/S Pacific Development Corporation Ltd. (Concessionaire Of Delhi Metro Rail Corporation) v. South Delhi Municipal Corporation And Anr observed and has set aside an order issued by the South Delhi Municipal Corporation, SDMC in 2018 wherein directing the Pacific Mall not to charge parking fee from the visitors.
The Division bench comprising of Justice Vibhu Bakhru and Justice Amit Mahajan in the case observed and has stated that charging of the parking fee by the mall does not violate the Master Plan for Delhi, 2021 or the Unified Building Byelaws for Delhi, 2016.
The bench in the case observed and has allowed the appeal of Pacific Mall’s and has set aside the order passed by single judge in February 2020 which upheld the civic body’s order.
Therefore, it has also been stated that the said court is 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 in order to enforce the norms for buildings and its use in accordance with the MPD-2021.
Adding to it, the court stated 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.
The court stated that the counsel appearing 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, as the same would entitle MCD for directing PDCL in order to provide parking space free of charge. Thus, it would clearly amount to expropriating the appellant’s property without the authority of law.
It being the case of MCD 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.
It has also been claimed by the MCD that the parking space was not being included in FAR and the said area could not be commercially exploited or brought to any commercial use. On the other hand, it has been contended by the Pacific Mall before the court that the parking spaces were not included in FAR by virtue of the Building Byelaws wherein it has been prescribed the extent of permissible construction, which in turn is dependent on the total area of the plot on which a building which is constructed.
Further, it has been claimed that the exclusion of parking spaces from the FAR did not proscribe collection of charges in respect of vehicles which are parked at the parking space.
The bench in the case observed and has ruled that 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.
Therefore, the court stated that the field covered by the Building Byelaws relates to building norms and standards for specified buildings in permissible zones and the said byelaws do not control or monitor any aspect of the use of building. Thus, if the buildings are being constructed in accordance with the Building Byelaws and are used in accordance with the permissible use, thus, the same are duly satisfied.
Adding to it, the court stated that 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 and as long as the activities are being 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.
The court noted that the parking is one of the permitted activities in the basement and areas earmarked for the said purpose in the Pacific Mall.
The bench stated that so long as the areas in question are used for parking of the vehicles, it would not be open for MCD in order to claim that the area has been misused for the reason that the owner is charging fee for permitting the parking in the said premises.
It has also been contended by the court that Mr. Arora that if PDCL is permitted to charge parking fees from the persons who are visiting the Pacific Mall and they would tend to park their vehicles on the margin of the road, which would lead to traffic congestion. The counsel, Advocates Mr Sudhir Nandrajog, Senior Advocate with Ms Meenakshi Jha and Mr Neeraj Kumar appeared for the appellant.
The counsel, Advocate Mr Ajjay Arora, Mr Kapil Dutta and Mr Vansh Luthra, Advocates for R-1; Ms Teena Srivastava represented the respondent.
