MCD cannot order Pacific Mall to provide free parking just to stop people from parking on roads: Delhi High Court

The Municipal Corporation of Delhi (MCD) cannot order a commercial enterprise like the Pacific Metro Mall to provide free parking to visitors just because it cannot control traffic and wants to stop people from parking their vehicles on road, the Delhi High Court said on Tuesday [Pacific Development Corporation Limited vs South Delhi Municipal Corporation and Anr.]..The Court made the observation while setting aside an MCD order barring the Pacific Metro Mall from levying parking fees from visitors..A division bench of Justices Vibhu Bakhru and Amit Mahajan also reasoned that the Unified Building Byelaws for Delhi do not regulate any aspect of a building's use after its construction."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..The MCD's counsel had argued that if the mall is permitted to charge parking fees, people intending to visit the mall would park their vehicles on roadsides, leading to traffic congestion.The Court replied it was the responsibility of the authorities to ensure that vehicles are not parked in no-parking zones. The municipal authority cannot intrude into a commercial establishment's functioning by citing such reasons, the Court added."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. Merely because the concerned authorities are finding it difficult to enforce traffic laws is clearly no ground for MCD to intrude into the functioning of a commercial enterprise and insist that parking be provided free of cost," the Court concluded..The Court was hearing a challenge to a 2020 judgment of single-judge Justice V Kameswar Rao who had upheld the MCD's order against the mall's owner, Pacific Development Corporation Limited (PDCL).The single-judge reasoned that parking areas, which are not counted in the Floor Area Ratio (FAR), were for the common enjoyment of all occupiers. It was expected that the occupiers would collectively maintain the common areas, the single judge had opined. This verdict was challenged by PDCL..Before the division bench, the MCD defended its decision, arguing that since the parking space required under the bye-laws is not included in computing the FAR, it cannot be commercially exploited. Therefore, parking charges cannot be collected, the MCD submitted. Conversely, PDCL contended that the exclusion of parking spaces from the FAR does not mean the collection of parking fees is prohibited, as long as the building conforms to its sanctioned use..The Court observed that the bye-laws referred to by the parties exclusively pertain to norms and standards for constructing buildings and were not related to whether their use generates any monetary benefit. For example, a homeowner with extra parking space is not prohibited from allowing a neighbor to park their vehicle for a mutually agreed-upon consideration, the Court explained. "So long as the stilt area is used for parking of vehicles (which is a permissible use), the Building Byelaws would have no further application. The Building Byelaws are not relevant to the monetary arrangement between the house owner and his neighbour and do not control their arrangement," the Court stated..It further observed that parking was undisputedly one of the permitted activities in the basement and other parking areas of the mall. Therefore, the Court concluded that as long as the areas were used for the parking of vehicles, the same could not be termed a misuse."So long as the said areas 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. There is no provision in the Building Byelaws which proscribe charging of fee or controls the terms on which buildings are used," , the Court said..The Court also noted the parties had not shown any provision of the building byelaws that would entitle MCD to direct PDCL to provide parking spaces free of charge. The Court concluded that the MCD's order amounted to expropriating PDCL's property without the authority of law.Therefore, the Court allowed the appeal and set aside the single-judge's judgment, as well as the MCD order..PDCL was represented by Senior Advocate Sudhir Nandrajog along with advocates Meenakshi Jha and Neeraj Kumar and AR Sanjay Chauhan.The MCD was represented by advocates Ajjay Arora, Kapil Dutta and Vansh Luthra.Delhi Metro Rail Corporation (DMRC) was represented by advocate Teena Srivastava..[Read Judgment]