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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ANANT S. DAVE, BIREN VAISHNAV, JJ.
Ruchi Malls Pvt. Ltd. - Appellant
Versus
State of Gujarat - Respondent
R/Letters Patent Appeal No. 1412 of 2018, In R/Special Civil Application No. 14432 of 2018 With Civil Application (For Stay) No. 1 of 2018, In R/Letters Patent Appeal No. 1412 of 2018
Decided On : 10-07-2019
For the Appellants :Mr. Mihir H. Joshi, Senior Advocate With Mr. Nandish Y.Chudgar, Advocate
For the Respondent: For M/S. Nanavati Associates, Ms. Manisha Lavkumar, Government Pleader With Mr. Tirthraj Pandya, Assistant Government Pleader, Mr. Satyam Y. Chhaya
Headnote:
General Development Control Regulations, 2017 - Appeal is a Private Limited Company and appellant is Senior Manager with appellant Company invitation offered by Urban Development Authority for setting up an entertainment hub upon a parcel of land situated opposite and upon interest being shown by appellants it came to be allotted - Appellants have constructed and developed a state-of-art shopping mall upon said land known as Alpha One Mall as per the permissions granted mall was opened for public use - Initially appellants did not charge any parking fees from visitors - It was case of the appellants before Single Judge that they were also threatened that if they continued to charge parking fees necessary legal action shall be taken against them - Appellants gave reply on explaining situation and thereafter challenged legality and validity of impugned notice issued by respondent - Appellants have parking capacity of two-wheelers and four-wheelers appellants were not levying parking charge say of appellants is that new amusement park at premises another commercial complex constructed opposite mall of appellants and a religious place known as led to congestion of traffic and visitors of other public places also parking their vehicles in mall parking and therefore appellants had to start levying parking charges - Another reason given for levying charge is that appellants are incurring costs towards maintenance of parking facility – Held, Impugned directions contained in CAV Judgment rendered Single Judge in our considered opinion cannot bind State Government inasmuch as in exercise of powers Article Constitution of India a Writ Court is ordinarily not expected to direct State and its authorities to undertake any legislative exercise and enactment of legislation in form of Act/Rules/Regulations is in exclusive domain of legislature - Even observations and conclusions arrived by Single Judge in the impugned judgment which are based on an incorrect assumption that owners of malls/multiplexes can charge parking fees from visitors as per GDCR shall not be binding upon respondent – authorities - Therefore directions contained in judgment impugned in this appeal to rationalize and regulate parking fees and prescription of rates for fixation of parking rates for malls/multiplexes till appropriate decision is taken by State Government are not to be implemented - Liberty is reserved upon respondent-authority to act upon Notices and orders impugned before Judge – Appeal disposed (Para 26)
ANANT S. DAVE, J.
1. Appellant No.1 in this appeal is a Private Limited Company and appellant No.2 is the Senior Manager with the appellant No.1 Company. Pursuant to the invitation offered by the Ahmedabad Urban Development Authority (AUDA) for setting up an entertainment hub upon a parcel of land situated opposite the Vastrapur Lake at Ahmedabad, and upon interest being shown by appellants, it came to be allotted to the appellants, and the appellants have constructed and developed a state-of-the-art shopping mall upon the said land known as “Alpha One Mall” as per the permissions granted by the AUDA. The mall was opened for public use on 15.10.2011. Initially, the appellants did not charge any parking fees from the visitors. However, it is their case that subsequently, people visiting other places in the vicinity of their mall were also parking their vehicles in the parking area of the mall, which led to denial of the parking space to the visitors of the mall, hence they decided to levy parking charges at the rate of Rs.10/- for two-wheelers and Rs.20/- for four-wheelers. However, the respondent No.2 Police Inspector, “A” Division Traffic Police Station, Shahibaug, Ahmedabad, issued a notice on 21.7.2018, informing the appellants, inter alia, that the collection of parking charges was violative of the General Development Control Regulations, 2017, (“GDCR” for short) and the Building Use Permission (“BU Permission” for short) granted to them, calling upon them to remain present on 22.7.2018, along with necessary documents to how cause as to under what authority they were collecting the parking charges. It was the case of the appellants before learned Single Judge hat they were also threatened that if they continued to charge parking fees, necessary legal action shall be taken against them. The appellants gave reply on 22.7.2018 explaining the situation and thereafter, challenged the legality and validity of the impugned notice dated 21.7.2018 issued by respondent No.2.
2. Learned Single Judge, by a common CAV Judgment dated 17.10.2018, has disposed of the writ petition filed by the present appellants along with three other identical petitions, subject to the following directions:
“26. In that view of the matter, following directions are given:-
(i) The impugned notices/orders issued by the respondent authorities are quashed and set aside;
(ii) The State Government, in Urban Development and Urban Housing Department shall, at the earliest take decision on the “parking policy” to rationalize and regulate the parking fees being collected at the commercial complexes/malls/multiplexes, as also at the public premises/roads/streets etc., and amend the GDCR appropriately if necessary to do so.
(iii) Till the time appropriate decision is taken on the “parking policy” by the State Government, it is directed that the petitioners and other similarly situated owners/managers of the commercial buildings falling in “Mercantile” and “Assembly” categories mentioned in Regulation No.7.4 of the GDCR, shall provide free parking to all the visitors, at least for one hour of their entry, and thereafter may charge reasonable parking fees commensurable to the services provided by them. However, such fees shall not be more than Rs.30/- for four wheelers and Rs.10/- for two-wheelers per day.
(iv) It is clarified that the respondent authorities shall be at liberty to take appropriate action as may be permissible under the law for the removal of encroachments of all kinds and illegal parking of vehicles on the public roads/service roads or on the public streets.
27. Subject to the afore-stated directions, all the petitions stand disposed of. Copy of the order be sent to the Chief Secretary, and to the Principal Secretary, Urban Development and Urban Housing Department, Government of Gujarat, Sachivalaya, Gandhinagar for perusal and action.”
The appellants feeling aggrieved by directions contained in Clauses (ii) and (iii) of Paragraph-26 of the judgment,
