Gujarat High Court allows parking charges at malls and multiplexes beyond first free hour, fixes cap

Ahmedabad: The Gujarat High Court today allowed the mall and multiplex owners in the state to take parking charges if vehicles were parked for over an hour.

The court of Justice Bela Trivedi however said that after the free first hour, the maximum parking charge allowed for a four wheeler should be maximum Rs 30 while that for a two wheeler should be maximum Rs 10 per day.

She also observed that the state government could make rules and parking policy if it wanted to completely free the parking. She also said that for proper resolution of parking problems, people should also play proactive role.

She passed the order after hearing a number of PILs, by malls and multiplexes of Ahmeabad, Vadodara and Surat clubbed together.

They had challenged the recent orders of the police commissioners regarding free of charge parking at all the multiplexes and malls and other commercial establishments.


From the High Court verdict

– 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.

– 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.

– 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.

The High Court in its verdict observed:

The learned Advocates for the petitioners have submitted that the petitioners are charging very nominal parking fees and that too, for meeting with the expenses incurred by them for providing services to the visitors by deploying security guards and maintaining the parking space.

According to them, if such token fee is not recovered from the visitors, any outsider though not visiting the mall or complex would park his vehicle, and the genuine visitors of the mall may sometimes find it difficult to get the parking space. The Court finds substance in the said submissions. As such, recovery of parking fees from the outsiders would be for the services provided by the building owners on the principle of quid pro quo. The parking area in the privately owned commercial buildings or complexes being not owned by or leased out by the public authorities, could not be said to be a “public place”. Though it is true that the public authorities by framing appropriate regulations may regulate or prohibit the use of such area, nonetheless nobody, as observed by the Supreme Court in case of Nagar Panchayat, Kurwai Vs. Mahesh Kumar Singhal (supra), has a fundamental right to use the land belonging to another without the latter’s permission or paying for it, if demanded. Therefore, no visitor of a commercial building could claim as a matter of right use of the parking space free of charge. It is also pertinent to note that in some cases, the Municipal authorities themselves have permitted the builders/owners to collect reasonable parking fees, and that at certain places the Municipal authorities themselves are collecting the parking charges from the public for parking their vehicles on the public road or service road, as the owners of some of such commercial buildings abutting on the public road
have failed to provide parking area in their buildings. Hence, it does not lie in the mouth of the respondent authorities to say that the collection of parking fees by the petitioners is violative of the GDCR. It is needless to say that such fees can not be levied at an exorbitant or unreasonable rate and that they must commensurate with the services provided on the principle of quid pro quo.

Under the circumstances, and in absence of any specific regulation in the GDCR making it mandatory to provide free parking area in all commercial buildings or malls or multiplexes, it is difficult to vindicate the stand taken by the respondent authorities in the impugned notices that collection of parking fees being violative of the GDCR would entail legal action or penal consequences. Respondent authorities may frame appropriate Rules or Regulations, regulating or even prohibiting collection of parking fees in the privately owned/managed commercial buildings or multi-storied malls and complexes, where large number of footfalls take place everyday, and which cause lot of traffic congestion on the public roads. However, in absence of such regulations, the petitioners could not be restrained from collecting the parking fees. In that view of the matter, without undermining the authority of the respondent authorities, more particularly of the respondent police authorities to take action for regulating the traffic on the public roads or streets, the threatened actions contained in the impugned notices/orders deserve to be declared unwarranted and the impugned notices/orders deserve to be quashed and set aside.

Having said that, the Court could not be oblivious to the general tendency and mindsets of people to park their vehicles on the roads instead of parking at the earmarked parking areas to avoid payment of parking fees, resulting into severe traffic problems. In the opinion of the Court, it is absolutely incomprehensible that such traffic problem of such a great magnitude prevailing in the cities should be solved by the respondent authorities alone with their limited resources, and without any cooperation from the public at large. The sense of traffic discipline needs to be inculcated in the minds of people either by educating them or by legislating suitable Rules and Regulations by the respondent authorities. As stated earlier, the gravity of traffic problem has also been highlighted by the Division Bench in Writ Petition (PIL) No.170 of 2017 (supra), in which the Bench has issued number of directions including the directions to the respondent authorities to remove the encroachments and regulate the traffic on the public roads/service roads.

It can not be gainsaid that all public streets and roads vest in the State and that the members of the public are entitled as beneficiaries to use them as a matter of right. However, such rights would be limited to the similar rights possessed by every citizen to use such streets and roads. The State as a ‘Trustee’ on behalf of the public, therefore, is entitled to impose reasonable restrictions on the extent of the user, as may be requisite for protecting the rights of all the public in general. Having regard to the gravity of traffic problem prevailing in the urban areas, the Court is of the opinion that it would be desirable for the State Government to take a 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 places/roads/streets, and appropriately amend the GDCR. However, till that is done, it would be appropriate to issue necessary directions for regulating the levy of parking fees at the commercial complexes, malls and multiplexes. It is needless to say that in exercise of writ jurisdiction, the Court may mould the reliefs and issue appropriate directions having regard to the facts and circumstances of the case.

DeshGujarat