IMPORTANT POINT
The Building Byelaws and MPD-2021 set out the development norms and standards for construction of buildings, but do not proscribe the charging of parking fees or control the terms on which buildings are used.

JUDGMENT

Vibhu Bakhru, J. - The appellant, M/s Pacific Development Corporation Ltd. (hereafter PDCL) has filed the present intra court appeal impugning a judgment dated 10.02.2020 (hereafter the impugned judgment) delivered by the learned Single Judge of this Court, thereby rejecting, PDCLs petition - W.P.(C) 3712/2019 captioned M/s Pacific Development Corporation Ltd. v. South Delhi Municipal Corporation & Anr. PDCL had filed the said petition inter alia impugning an order dated 14.05.2018 issued by the Executive Engineer of South Delhi Municipal Corporation (hereafter SDMC) directing PDCL not to charge any parking charges in regard to the vehicles parked at the Pacific Metro Mall (hereafter Pacific Mall).

2. The principal controversy in the present appeal is 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. According to Municipal Corporation of Delhi (hereafter MCD), it is impermissible for PDCL to charge parking charges in respect of the vehicles as the parking areas are not included for calculating the permissible Floor Area Ratio (FAR) of the commercial complex -Pacific Mall. MCD claims that since, the parking space is not included in the FAR, the said area cannot 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 purpose, the same is impermissible. PDCL contends to the contrary. The parking spaces are not included in the FAR by virtue of the Unified Building Byelaws for Delhi, 2016 (hereafter "Building Byelaws") which prescribe the extent of permissible construction, which in turn is dependent on the total area of the plot on which a building is constructed. According to PDCL, the extent of permissible construction has no bearing on the question whether any charges can be levied for its use so long as the building conforms to the use for which it was sanctioned. PDCL claims that the exclusion of parking spaces from the FAR does not in any manner proscribe the collection of charges in respect of vehicles parked at the parking space.

Factual Context

3. Delhi Development Authority (hereafter DDA) had allotted land admeasuring 3.5 hectares (35000 square meters) at Khyala between Subhash Nagar and Tagore Garden Metro Stations to respondent no.2, Delhi Metro Rail Corporation, (hereafter DMRC) for the purposes of a construction depot. On 20.10.2006, DMRC issued a notice inviting bids for the development of a commercial building/mall on the subject land on Build-Operate-Transfer (BOT) basis. PDCL (then known as Naman Buildcon Ltd.) submitted its bid and was declared the successful bidder. DMRC entered into a Concession Agreement with PDCL on 08.03.2007.

4. In terms of the Concession Agreement, PDCL was required to develop, finance, construct, commission, operate, manage and maintain the commercial complex for a period of thirty years. Additionally, PDCL was liable to pay an upfront amount of Rs. 60 crores to DMRC and a further amount of Rs. 2.16 crores quarterly basis. It was also agreed that the quarterly payment would be increased by 20% successively on a compounding basis, on expiry of three years. The first increase being effective on expiry of three years from the date of the first payment. Under the Concession Agreement, PDCL was entitled to receive all receivables from the use of the commercial complex. Undisputedly, PDCL has discharged its liability.

5. On 30.03.2009, the Ministry of Urban Development (MoUD) issued an order, removing the condition of allotment, which restricted DMRC to use of the subject land only for the purposes for which it was allotted. DMRC was, thus, authorised to lease/sub-lease/license/grant concession in respect of the lands allotted to it inter alia for