Lulu Mall can collect parking fees from visitors but must have valid licence: Kerala High Court

The Kerala High Court recently permitted Lulu Mall in Kochi to collect parking fees from the vehicles of visitors coming to the mall [Pauly Vadakkan v Lulu International Shopping Mall & Ors.]..Justice VG Arun opined the it is the prerogative of the building owner to decide whether to collect parking fees from customers who are shopping at stores situated in the building. However, if the owner decides to levy fees, the same can only be done after obtaining a licence from the concerned local authority, the Court added."This court is also of the definite view that it is the prerogative of the building owner to decide whether parking fee is to be levied from the customers, parking their vehicles for utilising the shopping facility and services provided in the building. If the building owner decides to levy fees, such activity can be carried out only under a licence issued by the local authority," the Court said..In the case of Lulu Mall, there are two parking spaces; one in the basement of the mall and another in an adjacent multi-level parking structure. The Court found that collection of fees from the former is legal but to collect fees for the latter would be illegal as the owner is yet to obtain a licence under Section 475 of the Kerala Municipality Act“The conclusion that collection of fees from the vehicles parking in the 1083 parking slots in the basement of Lulu Mall is legal, but collection of fees from vehicles parking in the multilevel parking facility, without obtaining a licence under Section 475 of the Kerala Municipality Act, is illegal. If the company intends to utilise the multilevel parking facility near the shopping mall and collect parking fees from persons using the facility, that can be done only under a licence issued in terms of Section 475 of the Act,” the judgment stated..The judgment was passed on two pleas that challenged the collection of fees for parking vehicles in the parking space in Lulu Mall at Edappally in Ernakulam..One of the petitions before the Court was moved by film director Pauly Vadakkan after he was charged ₹20 as parking fees when he visited the mall earlier this month.It was contended that such parking fees amounted to a blatant violation of the Kerala Municipality Act and Kerala Municipality Building Rules according to which the place earmarked in the approved building plan for parking in a commercial complex cannot be converted into a pay & park facility.In fact, it is the responsibility of the owner or management to provide free parking spaces to those who visit a commercial complex like Lulu Mall, it was claimed.The petitioner thus sought a declaration that the collection of parking fees by the mall was illegal and prayed for directions to refund the ₹20 collected from him.The plea by Vadakkan was tagged with another one in which the petitioner, one Bosco Louis made arguments on similar lines..The Shopping Centre's Association of India was made an additional respondent in the party array. The association which represents malls and retail operators, vehemently opposed the arguments of the petitioners and stated that the issue raised in the petitions will have wide ramifications on malls and retail operations in the State.It was argued that mall owners and operators who are private bodies incur huge costs in developing and maintaining parking spaces with adequate safety and security systems. The Municipality Act and Rules do not prohibit levying parking fees in commercial establishments.The Court went through relevant provisions of the Kerala Municipality Building Rules, 1999 as well as judgments of the Supreme Court, the Kerala High Court and other High Courts and held that it is the prerogative of the building owner to collect parking fees from customers."Hence, I respectfully disagree with the contrary opinion expressed by the Division Bench of the Gujarat High Court in Ruchi Malls Pvt. Ltd. v. State of Gujarat (2021 KHC 2706) and the Single Bench of the Andhra Pradesh High Court in Madan Mohan and Ors v. Municipal Corporation of Hyderabad and Anr. (AIR 2003 AP 393)," the Court added. .Pauly Vadakkan was represented by Advocate Jomy K Jose. Bosco Louis appeared in-person.The respondents were represented by Senior Advocates S Sreekumar and PK Suresh Kumar and advocates Nebil Nizar, P Martin Jose, P Prijith, Thomas P Kuruvilla, R Githesh, Manjunath Menon, Ajay Ben Jose, Sachin Jacob Ambat, Hani P Nair, Anna Linda VJ, Harikrishnan S, KP Sudheer, Anjali Menon, Kezia Mirum George, Anna Linda VJ, and MK Aboobacker (Standing Counsel for Kalamaserry Municipality)..[Read Judgment]