Charging Of Parking Fee By Pacific Mall Not Illegal: Delhi High Court
|The Delhi High Court observed that the the charging of parking fee by Pacific Mall is not illegal as it does not violate the Building Byelaws or MPD-2021.
The Court allowed Writ appeal filed by the Pacific Mall challenging the order of the Executive Engineer Of South Delhi Municipal Corporation (SDMC) that directed it to stop imposing parking charges. The Single Bench of the High Court had affirmed the decision of the SDMC.
The Court noted that Building bylaws do not require the M/s Pacific Development Corporation Ltd (PDLC) to permit the use of its parking space free of charge.
The Court emphasized that the bylaws don't regulate the usage aspects of a building and primarily focus on construction norms. As long as a building is utilized according to the approved purpose, it complies with the bylaws, the Court added.
The Bench comprising Justice Vibhu Bakhru and Justice Amit Mahajan observed, “Even if it is accepted that powers under Section 345A of the DMC Act can be extended to address misuser of premises, there is no ground whatsoever to hold that the premises in question are being misused on account of collection of charges for parking vehicles. Concededly, the parking space is being used only for parking vehicles and there is no dispute that the same is permitted under the Building Byelaws as well as MPD-2021”.
Senior Advocate Sudhir Nandrajog appeared for the Appellant and Advocate Ajjay Arora appeared for Respondents.
The Delhi Development Authority (DDA) allocated 3.5 hectares of land to the Delhi Metro Rail Corporation (DMRC) for a construction depot. Subsequently, DMRC invited bids for a commercial building on a Build-Operate-Transfer (BOT) basis. PDCL (formerly 'Naman Buildcon Ltd.') won the bid and entered into a Concession Agreement with DMRC. PDCL was responsible for developing, financing, and managing the commercial complex for thirty years.
Pacific Mall was built and DMRC allowed the owner of Pacific Mall to charge parking fees. MCD disagreed and ordered Pacific Mall to stop charging parking fees. Pacific Mall challenged the order in Trial Court which was decided in its favor. MCD appealed the decision and the High Court reversed the decision and ordered Pacific Mall to stop charging parking fees. Aggrieved, the owner of the Pacific Mall approached the Division Bench of the High Court challenging the judgment.
The Court framed the following issues: “whether PDCL is precluded from charging parking charges in respect of vehicles parked at the space earmarked for parking the vehicles at the Pacific Mall?
whether the owner/lessor of a commercial complex is proscribed from collecting parking charges for the reason that parking space is not included in the FAR (Floor Area Ratio)?”.
The Court noted that the DDA has set out development norms for different types of buildings in the Master Plan for Delhi 2021 (MPD-2021). The Building Byelaws, on the other hand, stipulate the standards for the construction of buildings. These two sets of rules work together to control the development of buildings in Delhi.
The Bench also observed one of the key aspects of development control is the Floor Area Ratio (FAR), which is the ratio of the total covered area of all floors to the area of the plot. The FAR is used to control the density of buildings in an area. MPD-2021 also sets out parking standards for different types of buildings. These standards specify the number of parking spaces that must be provided for each building.
In the case of commercial centers, the Court noted that the parking standards are as follows: 3 ECS (equivalent car spaces) for every 100 square meters of floor area. The Building Byelaws also contain provisions for parking spaces. These provisions specify the size of parking spaces and the location of parking spaces.
Furthermore, the Bench observed that the Building Byelaws do not control or monitor any aspect of the use of a building. So long as a building is used in accordance with the permissible use, the Building bylaws are satisfied. This means that a building owner is not precluded from charging a fee for parking, even if the parking spaces are not included in the FAR.
“It is clear that the control norms are restricted to the activities that are permitted for the purposes of controlled development. The control norms under MPD-2021 and the Building Byelaws are not concerned with the terms on which such activities are carried out”, the Bench noted.
Additionally, the Court noted that the DDA's development norms and the Building Byelaws work together to control the development of buildings in Delhi. These two sets of rules ensure that buildings are constructed in a safe and efficient manner and that they are used in a way that is compatible with the surrounding area.
Therefore, the Court set aside the order of the SDMC’s Executive Engineer directing PDCL not to charge parking fees.
Accordingly, the Court allowed the Appeal and set aside the impugned judgment.
Cause Title: M/S Pacific Development Corporation Ltd. (Concessionaire Of Delhi Metro Rail Corporation) v South Delhi Municipal Corporation & Anr (2023:DHC:8343-DB)