Andhra Pradesh High Court - Amravati
M/S.Trendset Mall Associates, vs The State Of Andhra Pradesh on 10 April, 2025
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
I.A.No. 1 of 2025
IN
W.P.No.8414 of 2025
O R DE R:
The present writ petition is filed questioning the
G.O.Ms.No.44 MA & UD dated 24.03.2025 issued by Respondent
No.1 regulating the parking fee in the private commercial buildings.
2. Under the impugned G.O., guidelines were issued regulating the parking fee in commercial establishments/ Malls/ Multiplexes to prevent the misuse by the outsiders and in public interest. The guidelines are as under:
Sl. Duration of Parking Parking fee to be collected No 1 UP to first 30 Minutes Free i.e., no parking fee to be collected from any person.
2 Above 30 minutes and Free if the person who has parked the vehicle up to 1Hour produces Bill to any amount in proof of having done shopping in the respective Mall / multiplex. In case of other persons prescribed parking fee for the said duration may be collected.
3 Above 1 hour Free if the person who has parked the vehicle produces a Bill / Movie ticket to an amount which is more than the parking fee (in proof of having done shopping in the respective Mall / Multiplex) to be paid by him for the said duration. In case of other persons prescribed parking fee for the said duration may be collected.2
3. Sri O.Manohar Reddy, learned senior counsel appearing for the Petitioners contended that the impugned G.O. cannot be sustained primarily on the ground that the State does not have authority to regulate economic activity of the Petitioners and in the absence of any statue enabling the same. Learned senior counsel relied upon the judgment of Kerala High Court in Bosco Louis v. The State of Kerala1 and the judgment of Hon'ble Supreme Court in K.C.Cinema (Correct Name K.C.Theatre) v. State of Jammu and Kashmir and others2 to sustain his plea. Learned senior counsel further argued that there is no provision under the Municipal Corporation Act or under the Building Rules enabling the State Government to issue the impugned G.O. It was further contended that the fee that is charged by the Petitioners is for the service provided in orderly parking and safety of the vehicles so as to enable the customers/visitors to enjoy the shopping/movie experience.
4. Sri A.Srikanth Reddy, learned Government Pleader would contend that the issue was considered by this Court in a judgment reported in Ch.Madan Mohan and others v. Municipal 1 2023 0 Supreme(Ker) 381 2 2023 (5) SCC 786 3 Corporation of Hyderabad and another3, wherein this Court had held that the owners of the buildings cannot levy parking fee in parking area for commercial places. Learned counsel also pointed out to Section 115 (40) of the A.P.Municipal Corporation Act, 1955 (for short 'the Act') and contended that the power of levy of fees is available under Section 115 (40) of the Act. Learned Government Pleader further contended that the parking place being a public place, there is an inherent power to regulate the parking in the area.
5. Sri A.S.C.Bose, learned standing counsel for the Respondent-Corporation referred to Section 2(44) of the Act explaining the term 'public place' and also referred to Section 586 of the Act which enables the Corporation to frame bye-laws.
6. Having heard the respective counsel, Section 2(44) of the Act defines 'public place' as a place where public are permitted to have access. Section 115 (40) of the Act provides for levy of fees for parking places and the same reads as under: 3
2003 (4) ALD 6 4 Section 115 (40) Provide parking places, public landing places, halting places, for vehicles of any description including motor vehicles and levy fees for their use.
7. The above provision regulating levy of fee is available only when Corporation provides the parking space. This is apparent from the opening words of the Section, which reads as under:
115. Matters which may be provided for by the Corporation at its discretion: The Corporation may provide from time to time, either wholly or partly, for all or any of the following matters...'
8. On a continuous reading of the above Section along with sub-section (40), it is apparent that the levy of fee is restricted only to those public places where Corporation is providing the parking space.
9. The Section 586 of the Act enables the Corporation to formulate bye-laws which are not inconsistent with the Act in respect of supervision and use of parking places, public landing places and halting places for all vehicles of any description including motor vehicles, public and private cart stands and the levy of fees for the use of such of them as belong to the Corporation.
5
10. In this case, the impugned G.O. is not a bye-law under Section 586 of the Act, but issued by the State Government in exercise of its executive power. Secondly, even if the bye-laws are framed by the Municipal Corporation, the same would be in conflict with the economic activity of the private owners for the parking service i.e orderly parking, security to the vehicle as well as building etc., provided in commercial buildings owned by them, which is a fundamental right under Article 19 of the Constitution of India. The quantum and levy of parking fee is part of the business wisdom of the owner entrepreneur and to go to the commercial building is a choice of visitor/customer. It would be odd to say that the state has a say in fixing a cap on economic activity of the present nature by an individual.
11. The judgment of the Hon'ble Supreme Court in K.C.Cinema's case (1 supra) was a case relating to restriction imposed on the moviegoers from bringing eatables inside the cinema hall. In that regard, the observations on such restrictions by the Hon'ble Supreme Court at paragraphs 23, 27 and 31 would be appropriate. The paragraphs 23, 27 and 31 read as under:
23. The cinema hall is a private property of the owner of the hall. The owner of the hall is entitled to stipulate terms and 6 conditions so long as they are not contrary to public interest, safety and welfare. Like with any other business, the proprietor or the management is entitled to determine the business model that is to be followed and to give effect to their own conceptions of the economic viability of a particular business model. The owner of a cinema hall is entitled to determine whether she will set up or engage an entity for setting up counters for the sale of food and beverages and to regulate the terms on which such sale should take place. A prohibition on carrying food and beverages from outside into the precincts of the movie hall is not contrary to public interest, safety or welfare.
27. Whether or not to watch a movie is entirely within the choice of viewers. If viewers seek to enter a cinema hall, they must abide by the terms and conditions subject to which entry is granted. Having reserved the right of admission, it is open to theatre owners to determine whether food from outside the precincts of the cinema hall should be permitted to be carried inside.
31. The condition of entry is imposed as a direct result of the exercise of the right of cinema owners to carry on a business or trade under Article 19(1)(g) of the Constitution.
The commercial logic of prohibiting moviegoers from carrying their own food to the cinema hall is to stimulate and boost a vital aspect of the business-the sale of food and beverages. If business owners are not permitted to determine the various facets of their business (in accordance with law), economic activity would come to a grinding halt. While moviegoers may have no choice but to sign on the proverbial dotted line (and 7 thereby not carry any food of their own into the theatre) in order to enter the cinema hall and watch a movie of their choice, this does not by itself render the condition of entry unfair, unreasonable or unconscionable. (Emphasised)
12. The obligation to provide parking space under the Building Rules and the levy of fee are independent facets while the former is regulated through a statute, the latter should be left to the wisdom of the owner considering the services that are being provided i.e. safely, orderly parking and convenience to the visitors. Apart from that, the levy of fee would be an incentive to the owner to provide additional parking space.
13. The judgment of this Court relied upon by the learned Government Pleader in Ch.Madan Mohan's case (2 supra) does not exactly refer to the right to charge for the element of service in providing orderly parking, security to the vehicle as well as building etc.,. It is to be noted here that the building laws do not obligate the owner to provide these services and therefore the impugned G.O seeking to regulate the fee for parking either for half an hour or one hour infringes on the economic activity and makes the parking service a compulsory charity.
8
14. For the aforesaid reasons, the operation of the impugned G.O.Ms.No.44 MA & UD dated 24.03.2025 issued by Respondent No.1 is suspended for a period of twelve (12) weeks.
___________________ NYAPATHY VIJAY, J Date:10.04.2025 KLP