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IN THE HIGH COURT OF DELHI AT NEW DELHI
V. KAMESWAR RAO, J.
M/s. Pacific Development Corporation Ltd. – Petitioner
Versus
South Delhi Municipal Corporation & Another – Respondents
W.P.(C). No. 3712 of 2019, CM. Nos. 17056 & 29137 of 2019
Decided On : 10-02-2020
The court held that the petitioner, a concessionaire of respondent No.2/DMRC, was not entitled to charge parking fees for vehicles parked at the Pacific Metro Mall on the plot situated at Najafgarh Road, Tagore Gardens, Tilak Nagar, New Delhi. The court found that the parking lot in which the petitioner was collecting parking charges was owned by respondent No.2/DMRC and that such collection was in terms of the Concessionaire Agreement entered into between petitioner and respondent No.2/DMRC. However, the court also found that the parking spaces were provided in the basement and at second and third floor, and that other facilities like lifts, toilets etc., were presumed to have been provided by the petitioner. The court held that these areas are for the enjoyment of the occupiers and it is expected that it is the occupiers, who shall in unison maintain these common areas. The court further held that the collection of parking charges, if not permitted in view of the provisions of the building bye laws then they cannot be collected.
Fact of the Case:
The petitioner, a concessionaire of respondent No.2/DMRC, was collecting parking fees for vehicles parked at the Pacific Metro Mall on the plot situated at Najafgarh Road, Tagore Gardens, Tilak Nagar, New Delhi. The respondent No.1/SDMC issued a public notice dated December 21, 2015 whereby it directed that the areas reserved for parking in commercial/office/malls/hospital complexes is free from FAR and the same is meant for parking by public without any fee. The petitioner received a notice dated January 19, 2016 from respondent No.1/SDMC directing them to stop the misuse of parking space in their commercial complex. The petitioner replied to the same by stating that the mall does not come under the jurisdiction of respondent No.1/SDMC and the property belongs to DMRC. Yet another show-cause notice dated March 30, 2016 under Section 345-A of the DMC Act was issued with a direction to stop charging parking fee from visitors/public visiting the petitioner’s complex. The petitioner filed a writ petition challenging the show-cause notice and the sealing order dated November 07, 2017.
Finding of the Court:
The court found that the parking lot in which the petitioner was collecting parking charges was owned by respondent No.2/DMRC and that such collection was in terms of the Concessionaire Agreement entered into between petitioner and respondent No.2/DMRC. However, the court also found that the parking spaces were provided in the basement and at second and third floor, and that other facilities like lifts, toilets etc., were presumed to have been provided by the petitioner. The court held that these areas are for the enjoyment of the occupiers and it is expected that it is the occupiers, who shall in unison maintain these common areas. The court further held that the collection of parking charges, if not permitted in view of the provisions of the building bye laws then they cannot be collected.
Issues: Whether the petitioner was entitled to charge parking fees for vehicles parked at the Pacific Metro Mall on the plot situated at Najafgarh Road, Tagore Gardens, Tilak Nagar, New Delhi.
Ratio Decidendi: The court held that the petitioner was not entitled to charge parking fees for vehicles parked at the Pacific Metro Mall on the plot situated at Najafgarh Road, Tagore Gardens, Tilak Nagar, New Delhi. The court found that the parking lot in which the petitioner was collecting parking charges was owned by respondent No.2/DMRC and that such collection was in terms of the Concessionaire Agreement entered into between petitioner and respondent No.2/DMRC. However, the court also found that the parking spaces were provided in the basement and at second and third floor, and that other facilities like lifts, toilets etc., were presumed to have been provided by the petitioner. The court held that these areas are for the enjoyment of the occupiers and it is expected that it is the occupiers, who shall in unison maintain these common areas. The court further held that the collection of parking charges, if not permitted in view of the provisions of the building bye laws then they cannot be collected.
Final Decision: The court dismissed the petition filed by the petitioner.
JUDGMENT :
1. The present writ petition has been filed by the petitioner with the following prayers:-
(a) Issue a writ of mandamus or any other similar writ, order or direction commanding upon the Respondent no. 1 to produce the entire records/file with regard to the issue of charging of parking fee by the Petitioner with regard to vehicles parked at the Pacific Metro Mall on the plot situated at Najafgarh Road, Tagore Gardens, Tilak Nagar, New Delhi;
(b) Issue a writ of mandamus or any other similar writ, order or direction commanding upon the Respondent no.1 from not interfering with the exclusive right and authority of the petitioner from charging parking fee with regard to vehicles parked at the Pacific Metro Mall on the plot situated at Najafgarh Road, Tagore Gardens, Tilak Nagar, New Delhi at the rates as fixed/determined by the Petitioner;
(bl) Issue a writ of Certiorari or any other similar writ, order or direction setting aside/quashing the order dated 14.05.2018 passed by the Executive Engineer, SDMC (Annexure P/1) directing the Petitioner not to charge any parking charges.
(c) Pass such further orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.
2. Vide the impugned order dated May 14, 2018 issued by the Executive Engineer of respondent No.1/SDMC, petitioner was restrained from charging parking fee till the case of the petitioner based on the representations/letters preferred by the petitioner on February 23, 2018 and May 01, 2018 was decided by the respondent No.1/SDMC.
3. The case of the Petitioner is stated as herein below:
3.1 DDA vide letter dated May 07, 2003 allotted a land admeasuring 35,000 sq.m at Khyala (between Subhash Nagar and Tagore Garden Metro Station) on perpetual leasehold basis to respondent No. 2/Delhi Metro Rail Corporation (“DMRC”, for short) for the purpose of Mass Rapid Transit System (“MRTS”, for short) Project. The land was handed over to respondent No. 2/DMRC on June 26, 2003.
3.2 On July 21, 2003, Ministry of Urban Development (“MoUD”, for short), Govt. of India vide its letter to Municipal Corporation of Delhi (“MCD”, for short) informed that the Cabinet has permitted respondent no.2/DMRC to generate revenue through property development.
3.3 Pursuant thereto respondent No.2/DMRC entered into a Concessionaire Agreement dated March 08, 2007 (“Concessionaire Agreement”, for short) with the petitioner i.e. M/s Pacific Development Corporation Ltd. (formerly known as “Naman Buildcon Ltd.”) for an area of 33951.5 sq.m, to develop, finance, construct, commission, operate, manage and maintain the project (built up spaces and facilities in specified area) and the project facility for a period of thirty years. This project was awarded to the petitioner on Build-Operate Transfer (“BOT”, for short) basis. Petitioner’s case is that in terms of the Concessionaire Agreement, the petitioner had paid a sum of Rs.60 crores upfront and has been paying Rs.2.16 cores on a quarterly basis since November 17, 2010. The quarterly payment would be escalated @ 20% after the expiry of three years from the date of first payment on a compounding basis. The petitioner, in return, is entitled to receive all receivables from the use of project and project facility after the payment of aforesaid dues to respondent No.2/DMRC.
3.4 On March 30, 2009, MoUD vide its order directed that the property development activities of respondent No. 2/DMRC undertaken to supplement the cost of project is to be considered as part of the project. The same was to increase the non-operational revenues i.e. revenues from advertisement, retailing, real estate at metro stations, parking lot revenues, etc. in lines with global examples of metro such as Hong
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