Judge denies request for orders to stop parking project enforcement

Justice Brassington Reynolds yesterday denied an application for temporary orders to halt the enforcement of metered parking in the city, pending the court’s review of the contract between the Mayor and City Council (M&CC) and contractor Smart City Solutions (SCS).

The ruling will effectively allow SCS to continue unhindered with the imposition of charges on drivers for parking in metered zones as well as penalties, including fines, for violations.

In his ruling yesterday, Justice Reynolds said that the interim orders which were being sought by attorney Kamal Ramkarran to prohibit SCS from enforcing the parking project operate to stay legal proceedings, and not executive actions. The functions being executed by SCS with regard to enforcing its contract, the judge explained, are executive actions and not legal proceedings, which cannot be stayed. He emphasized that the prerogative orders of prohibition and certiorari, which were being sought by Ramkarran’s client, Mohendra Arjune, against the M&CC, operate to stay proceedings of tribunals, but not executive actions such as those of the Mayor and Town Clerk in the execution of the contract.

In the circumstances, the judge dismissed Ramkarran’s request for the interim orders.

The matter will be called again on March 20 at 3 pm for reports. In response to the ruling, Ramkarran asked that the matter be expedited.

Attorney for M&CC Roger Yearwood had previously argued that the court had no power to grant the interim orders Ramkarran was seeking as they could only be done under and by way of the Judicial Review Act, which has not yet come into force.

Attorney Stephen Fraser, who represents SCS, had also argued that the common law, in relation to the prerogative writs, would operate to stay court proceedings and not the executive aspect of the functions of SCS executing the parking meter project.

Ramkarran had, however, contended that the stay of proceedings to which he referred, in the context of this case, dealt with the operationalizing of the contract and for SCS to be prohibited from enforcing all functions related with the parking project.

Meanwhile, both Yearwood and Fraser said that the offer which they made last Thursday, for Arjune not to be subjected to any of SCS’s enforcement measures associated with the parking meter project, still stands.

According to Fraser, the undertaking will last until the matter has ended.

The undertaking by the respondents had prompted the judge to enquire whether the parking meter project was not one which would affect the wider Guyanese society and not Arjune only.

Fraser had, however, pointed out that the application before the court, which the judge must bear in mind, names only one applicant—Arjune—and that they are willing to facilitate him regarding his specific claims of hardships.

Arjune, a conveyancing clerk attached to the Cameron and Shepherd law firm, is seeking to have the court quash the M&CC’s agreement with SCS.

Arjune’s application for judicial review is based on the contention that the city failed to comply with the law in entering the contract. Ramkarran has argued that the M&CC failed to comply with mandatory prerequisites set out in Sections 230 and 231 of the Municipal and District Councils Act.

Section 231 of the Act states that before entering into any contract for the execution of any work or the supply of any goods to the value of $250,000 or more, a council is required to give notice of such proposed contract and “shall by such notice invite any person willing to undertake the same to submit a sealed tender thereof to the council….” The project was not publicly tendered, which has been one of the bases upon which it has been criticized.

Ramkarran also contends that by entering into the May 13, 2016 contract, M&CC unlawfully and in an ultra vires manner delegated its statutorily derived power to erect and maintain parking meters under and in terms of Section 276(b) of the Act and acted contrary to Section 21 of the Civil Law Act of Guyana, which prohibits the establishment of monopolies in Guyana. He also argued that the decision by the M&CC and SCS to exempt teachers and employees of the Bank of Guyana from charges was arbitrary, discriminatory and contrary to the operation of the rule of law.

In an affidavit supporting his application to the court, Arjune noted that the parking fees, which amount to approximately $37,120 per month, have been “extremely onerous” on him.

Challenge to parking bylaws

Meanwhile, Fraser yesterday made an application for the SCS to be a party to the proceedings brought by the New Building Society (NBS) to challenge the by-laws for the parking system.

Attorney Pauline Chase, who is representing the NBS, however, objected to Fraser’s application. She is expected to file her affidavit in answer to his application.

This matter, which was heard in chambers by Justice Reynolds, will also continue on March 20 at 9 am.

The NBS is contending that the by-laws are illegal.

Early last month, Justice Reynolds ordered “that an order or rule nisi certiorari be issued directed to Minister of Communities to show cause why a writ of certiorari should not be issued to quash his approval and/or decision to approve the Parking Meter By-Laws made under the Municipal and District Councils Act, Chapter 28:01 made on or about the 23rd day of January, 2017 in that the said approval or decision to approve was of no legal effect and was made unlawfully and in breach  of statute.”

The challenge rests on whether the procedure for the approval of the by-laws, as stipulated in the Act, was followed. NBS has argued that by failing to gazette its intention to apply for Bulkan’s permission, City Hall acted outside the law.

NBS argues that the implementation of metered parking has severely affected the entity resulting in great loss and hardship.

According to Anil Kishun, Chief Executive Officer of NBS, “the approval of the by-laws has put into operation a Parking Meter System which restrains and prevents our employees and customers from gaining access to our establishment without incurring large fees which is in some cases prohibitive or being guilty of a criminal offence which attracts a prison term upon summary conviction.”

In an affidavit drawn in support of the motion, Kishun said that prior to the by-laws, parking was available to employees and customers and the physical facility for it was made available at the sole expense of NBS.