Malls Can't Collect Car Parking Fee : Kerala High Court Makes Prima Facie View In Lulu Mall Case

The Kerala High Court on Friday opined that prima facie, the collection of parking fees by Lulu International shopping mall was not appropriate while adjudicating upon a couple of pleas alleging that the mall collecting parking fees from its customers was illegal.Justice P.V. Kunhikrishnan sought a clear response from the Kalamassery Municipality on this question and posted the matter to be taken up after two weeks. "As per the Building Rules, parking space is a part of the building, and a building permit is issued on the condition that there will be a parking space. Based on this undertaking a building is constructed. After construction, whether the owner can collect a parking fee is the question. Prima face, I am of the opinion that it is not possible. This Court wants to know the stand of the Municipality on this issue."The grievance of the petitioners was that Lulu mall was collecting parking fees without any authority. However, Senior Advocate S Sreekumar appearing for the respondents submitted that a license was given under Section 447 of the Kerala Municipality Act.The respondents further submitted that there are decisions of the High Court that support their position. The Court after hearing both sides directed the Municipality to file a statement on its definite stand whether a parking fee can be collected for a parking space mandatory under Building Rules. It was also observed that further collection of parking fees by lulu was subject to the result of this writ petition. However, it was clarified that in the meanwhile, they can collect such fee at their risk. The matter will be taken up on January 28, 2022. The first petition was moved by a social worker Bosco Louis who appeared as a party in person. Another petition was moved by film director Pauly Vadakkan after he was charged Rs 20 as parking fees when he visited the mall on December 2. In his plea, Vadakkan had alleged that the mall staff closed the exit gates and threatened him when he initially refused to pay the amount. The plea was filed through Advocate Jomy K. Jose.It was contended that collecting parking fees was a blatant violation of the Kerala Municipality Act and Kerala Municipality Building Rules 1994 since as per the rules, the mall is a commercial complex and the place earmarked in the approved building plan for parking cannot be converted into a pay & park facility. If any conversion is made, that is a fraud on the statute and unsustainable in the eye of the law, the petitioner had submitted.During the previous hearing, the counsel argued that the mall does not have the license to collect parking fees from customers. However, this was opposed by the respondents. The petition had further contended that parking fees were being collected by the mall since 2010 and that this had to be recovered by the government. Accordingly, the plea has sought a declaration that collection of parking fees by the mall was illegal apart from a refund of the Rs. 20 collected from the petitioner.What other High Courts have held:In 2019, the Gujarat High Court had ruled that malls and multiplexes should not collect parking fees as they are under a statutory obligation to provide car parking space.Last year, the Karnataka High Court refused to entertain a plea seeking free car parking spaces in malls and multiplexes."Somebody incurs a cost for maintaining the parking space at a cinema hall. How can it be free?", the Karnataka High Court had orally observed, after which the petitioner chose to withdraw the petition.Case Title: Pauly Vadakkan v. Lulu International Shopping Mall Pvt Ltd.Citation: 2022 LiveLaw (Ker) 24Click Here To Read/Download The Interim Order

Malls Can't Collect Car Parking Fee : Kerala High Court Makes Prima Facie View In Lulu Mall Case

Hannah M Varghese

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