Above: Malls and multiplexes charging high parking fees are now under the scanner/Photo: YouTube

The parking has been a contentious issue with malls and commercial establishments and the matter has now gone up to the apex court

By RK Misra in Ahmedabad

It just takes an ant to bring down an elephant. The insignificant Indian, coerced to cough up cash at every point, has cause for some cheer. This is because a small issue which touches a myriad lives has now reached the Supreme Court after exhausting itself in the courtrooms of Gujarat.

Malls, multiplexes and commercial establishments countrywide have been charging for vehicle parking every day over the last few years, turning it into a virtual scam. The lack of a clear-cut policy on this has caused
large-scale consumer exploitation. But no longer.

On July 10, 2019, the Gujarat High Court put a stop to these charges but the owners of these establishments were not ready to take its verdict lying down and approached the Supreme Court. The apex court has issued a notice to the Gujarat government to file its reply by October 15.

The story unfolded in July 2018 when the Ahmedabad, Vadodara and Surat police commissioners imposed a ban on malls, multiplexes and commercial establishments levying parking charges on visitors after PILs were filed on the issues of road quality, traffic and parking. The owners of malls and multiplexes approached a single-judge bench of the Gujarat High Court against the notifications.

In their petition, mall owners questioned the notifications of the police chiefs and asserted that collecting parking fees from visitors was their right. Also, under no law did the police authorities have powers to stop them from collecting such charges. The authorities, at best, can insist on keeping enough parking space in their complexes, but cannot restrain them from charging parking fees.

The state government supported its police chiefs contending that it was the responsibility of commercial establishments to provide free parking to visitors. The police chiefs told the Court that levying of parking fees by these establishments constituted an offence under Section 339 of the Indian Penal Code for wrongful restraint. The contention of the malls was that municipal corporations were already collecting parking charges and therefore commercial establishments cannot be restricted from doing so as the parking lots were their property.

Justice Bela Trivedi in her judgment on October 17, 2018, ruled that commercial establishments would have to provide free parking to visitors for the first hour but could charge a parking fee of a maximum of Rs 10 per day from two-wheelers and Rs 30 per day from four-wheelers. The Court, however, quashed the notices and orders of the police authorities, but directed the urban development department of the Gujarat government to take a decision on the parking policy at the earliest to rationalise and regulate the fees levied by these establishments. It also directed the state government to amend the General Development Control Regulations (GDCR) in this regard. It, however, clarified that government agencies may continue with their drive against encroachments and illegal parking on public roads. Apparently, in the absence of any specific rules, the single-judge bench ruled in favour of the malls, but issued multiple directions to them.

The aggrieved commercial establishments were soon back at the Gujarat High Court, this time before a division bench. This bench in November 2018 stayed the verdict of the single-judge bench. It also stayed the Court order directing the state government to formulate a comprehensive parking policy if it wished to control the parking charges levied by the commercial establishments. Nevertheless, it was made clear that the government was free to formulate such a policy if it so desired. The counsel for the petitioners had contended that as per the Supreme Court, courts cannot direct the government to frame policies as it is the prerogative of the latter.

The final verdict of the bench, led by acting chief justice AS Dave on July 10, 2019, however, struck down the single-judge order and said these establishments cannot levy parking charges. It upheld the state government’s argument that the GDCR does not permit it. In fact, the GDCR mandates that commercial complexes allocate parking spaces for visitors commensurate with the size and kind of commercial activities taking place therein.

The division bench ruled: “The provisions of the comprehensive General Development Control Regulation (GDCR), 2017, or the Gujarat provincial Municipal Corporations Act,1948, and the Gujarat Town Planning and Urban Development Act,1976, do not contemplate parking fee” or “parking-charges” to be levied from the visitors of a mercantile or malls or multiplexes or commercial complexes. The bench also quashed the single-judge direction to the government to form a parking policy stating that it was the exclusive domain of the legislature.

This is not the first time that the issue has figured in a High Court. Years earlier, the High Court in Hyderabad had ruled similarly. Justice Madan Mohan had clearly stated in his judgment then that “parking fees is an illegal amount collected from consumers and violates state laws”. Sources said that while it was implemented in Hyderabad and other parts of Telangana, establishments in Andhra Pradesh did not follow the Court verdict.

However in February this year, the Vijayawada Consumer Forum fined a mall Rs 5 lakh after a visitor approached it saying that he had been charged Rs 40 as parking charges for four hours. Justice Madhava Rao, who gave the order, also directed the mall to return the parking fees to the complainant and pay him Rs 5,000, including his legal expenses.

Incidentally, in June this year, the city improvement committee of Pune Municipal Corporation also passed a resolution for free parking at malls and multiplexes.

Such judgments are the way to go and the citizenry would definitely be rooting for them. In some malls in Delhi, the parking fees are even hiked during weekends to cash in on the higher footfalls. Parking has also been a contentious issue in private hospitals where parking is charged from family members of the patient and visitors and can burn quite a hole in the pocket during such constrained circumstances.

All eyes are now on the apex court for a final answer.