Delhi High Court: Appellant, Pacific Development Corporation Ltd. (‘PDCL’) filed the present intra court appeal impugning a judgment dated 10-02-2020 (‘the impugned judgment’) delivered by the Single Judge of this Court, thereby rejecting an order dated 14-05-2018 issued by the Executive Engineer of South Delhi Municipal Corporation (‘SDMC’) directing PDCL not to charge any parking charges from the vehicles parked at the Pacific Metro Mall (‘Pacific Mall’).
The Division Bench of Vibhu Bakhru* and Amit Mahajan, JJ., opined that the Municipal Corporation of Delhi (‘MCD’) could not be selective in implementing the rules and regulations as there were twenty-two other similarly placed malls, which were charging parking fees, but no action in respect of those malls was taken. The Court held that the charging of parking fee did not violate the Unified Building Byelaws for Delhi, 2016 (‘Building Byelaws’) or Master Plan for Delhi-2021 (‘MPD-2021’) and thus set aside the impugned judgment of the Single Judge and order dated 14-05-2018 issued by the Executive engineer, SDMC, whereby PDCL was directed not to charge parking fee.
Background
In the present case, the issue was whether PDCL was precluded from charging parking charges in respect of vehicles parked at the space earmarked for parking the vehicles at the Pacific Mall. MCD submitted that it was impermissible for PDCL to charge parking charges in respect of the vehicles as the parking areas were not included for calculating the permissible Floor Area Ratio (‘FAR’) of the commercial complex, i.e., Pacific Mall. MCD claimed that since the parking space was not included in the FAR, the said area could not be commercially exploited or brought to any commercial use. Since collecting parking charges in respect of vehicles would amount to commercial exploitation of the parking space for commercial purposes, the same was impermissible. PDCL submitted that the extent of permissible construction had no bearing on the question whether any charges could be levied for its use so long as the building conforms to the use for which it was sanctioned. PDCL claimed that the exclusion of parking spaces from the FAR did not in any manner proscribe the collection of charges in respect of vehicles parked at the parking space.
The Single Judge concluded that permitting PDCL to levy charges would be “against the spirit/intention of the Byelaws”. The Single Judge reasoned that the areas, which were not counted in the FAR were for the common enjoyment of all occupiers and it was expected that the occupiers would in unison maintains the common areas and it was not expected that a visitor to the building would pay charges for utilizing the common areas. The Single Judge held that restricting the usage of parking areas to those who pay the parking charges would violate the Building Byelaws.
Analysis, Law, and Decision
The issue for consideration before this Court was “whether the owner/lessor of a commercial complex was proscribed from collecting parking charges because parking space was not included in the FAR?”.
The Court opined that MCD’s reasoning that since the parking space required to be constructed under the relevant Building Byelaws was not included for computing the FAR, the same could not be exploited commercially and thus parking charges could not be collected, was flawed. The Court further opined that “from a plain reading of the Building Byelaws, it was clear that the same related only to the norms and standards for the construction of buildings, although the usage of a building would also determine the applicable Building Byelaws, the same had no relation to whether the permissible use yielded any monetary benefit or not. Thus, if the buildings were constructed in accordance with the Building Byelaws and were used in accordance with the permissible use, the same were duly satisfied”.
The Court opined that MPD-2021 sets out the development norms, which included the control norms for development on various plots and the Building Byelaws stipulated the standards for construction of buildings. The FAR, the ground coverage ratio and the building’s height, along with the required setbacks, effectively control how much buildings could be built up.
The Court stated that parking was one of the permitted activities in the basement and the areas earmarked for the said purpose in Pacific Mall and so long as the said areas were used for parking of vehicles, it would not be open for MCD to claim that the area had been misused for the reason that the owner was charging fee for permitting parking in the said premises. The Court observed that there was no provision in the Building Byelaws which proscribe charging of fees or controls the terms on which buildings were used. The Court noted that MPD-2021 as well as the Building Byelaws expressly provided that if the basement was used for parking, storage, and services, it would not be included in the FAR.
The Court noted that the Show Cause Notice dated 30-10-2017, and the order dated 07-11-2017 sealing the parking space of the commercial complex, Pacific Mall were issued under Section 345-A of the Delhi Municipal Corporation Act, 1957 (‘DMC Act’). The Court opined that even it was accepted that powers under Section 354-A of the DMC Act could be extended to address misuser of premises, there was no ground whatsoever to hold that the premises in question were being misused on account of collection of charges for parking vehicles. The Court opined that the parking space was being used only for parking vehicles and there was no dispute that the same was permitted under the Building Byelaws as well as MPD-2021 and whether PDCL charges any fee for permitting the vehicles was wholly outside the scope of the Building Byelaws.
The Court opined that it was for the authorities concerned to ensure that vehicles were not parked in no parking zones and merely because the authorities concerned were finding it difficult to enforce traffic laws was no ground for MCD to intrude into the functioning of a commercial enterprise and insist that parking be provided free of cost. This would clearly amount to expropriating appellant’s property without the authority of law.
The Court did not agree with the Single Judge’s view that charging of parking fee runs contrary to the spirit of the Building Byelaws. The Court opined that the scope of the Building Byelaws was limited to enforcing the norms for buildings and its use in accordance with the MPD-2021.
The Court opined that MCD could not be selective in implementing the rules and regulations as there were twenty-two other similarly placed malls, which were charging parking fees, but no action in respect of those malls was taken. The Court held that the charging of parking fee did not violate the Building Byelaws or MPD-2021. The Court allowed the appeal and set aside the impugned judgment of the Single Judge and order dated 14-05-2018 issued by the Executive engineer, SDMC, whereby PDCL was directed not to charge parking fee.
[Pacific Development Corpn. Ltd. v. South Delhi Municipal Corpn., 2023 SCC OnLine Del 7481, decided on 21-11-2023]
*Judgment authored by: Vibhu Bakhru
Advocates who appeared in this case :
For the Appellant: Sudhir Nandrajog, Senior Advocate; Meenakshi Jha, Neeraj Kumar, Advocates; Sanjay Chauhan, A.R.
For the Respondents: Ajjay Arora, Kapil Dutta, Vansh Luthra, Teena Srivastava, Advocates
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