The Gujarat High Court on Wednesday ruled that malls, multiplexes, shopping establishments etc., have to provide parking to the customers without collecting any fee from them.
The Division Bench of Acting Chief Justice Anant Dave and Justice Biren Vaishnav reached this conclusion based on the interpretation of provisions in Gujarat building and town planning laws which mandate that building owners should "provide" car parking space.
The connotation of the word "provide" is that it should be given without charging any fee, reasoned the bench.
"Word `provide' connotes "to make available for use; supply". In Regulation 8.12 of the Gujarat Comprehensive General Development Regulations 2017(GCDR), the term `provide' is frequently used. Hence, it can safely be inferred that parking is to be `made available for use' to visitors by the owners of a mall or the respective shop/ establishments, as the case may be, without charging any fee for the same", the bench said in its judgment.
The bench was hearing a batch of appeals by Ruchi Malls Pvt Ltd and other mall owners against a single bench judgment which directed the state government to frame a policy for regulating parking fee. That was in a writ petition filed by the mall owners against an order by traffic police authorities asking them to desist from charging parking fee on the ground that GCDR did not permit it.
In the judgment passed last October, the single bench of Justice Bela Trivedi accepted the contention of the mall owners that GCDR did not mandate giving of 'free' parking space and quashed the orders of traffic police. However, the single judge observed that parking fee cannot be exorbitant and proceeded to issue a direction for framing a guideline to regulate parking fee. Against this direction, the mall owners approached the Division Bench.
The Division Bench however re-examined the entire issue, and held that the single judge was in error in holding that mall owners could collect parking fee.
The Division Bench did not agree with the contention of owners that collecting parking fee was part of their fundamental right to trade and business under Article 19(1)(g) of the Constitution of India. The Court noted that it is their statutory duty under the building regulations to provide parking space.
"The the mall owners, on the other hand, even before erecting the superstructure, avail the benefit of exclusion of the FSI(Floor Space Index) towards parking and further undertake to provide parking space in such excluded FSI and even while obtaining Building Use Permission they undertake to provide parking facility to visitors. Hence such benefit of FSI towards parking is ultimately required is to be passed on to public at large".
"It, therefore, unequivocally appears from the record that since GDCR framed under the provisions of the Gujarat Town Planning and Urban Development Act, 1976, and the Gujarat Nagarpalika Act, 1963, do not provide any parking fees in case of mall and multiplexes and duty is cast upon them to provide parking, meaning thereby, no charge is to be levied for providing parking to visitors under the garb of providing safety, security, etc., we are of the view that there is no necessity to rationalise and regulate the parking policy and/or parking fees", Court observed.
It went on to add :
"…at the most, it can be said that the maintenance cost for the parking space, which is to be mandatorily provided as per GDCR, may be proportionately borne by the owner of the mall and occupant/owner of such shops, multiplexes, restaurants, etc., depending upon the nature of their contract, but by no stretch of imagination can it be said that the visitors of such shops, multiplexes, restaurants, etc. will have to be burdened with parking fee."
The appeals were disposed of with the observation that the authorities were entitled to enforce their orders against the mall owners regarding parking fee.
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