Court orders city to defend parking contract
A court has ordered the Mayor and City Council (M&CC) to defend their controversial deal with Smart City Solutions (SCS) for the Georgetown metered parking system or face having it declared invalid.
Acting Chief Justice Yonette CummingsEdwards yesterday granted an order asking the M&CC and Town Clerk Royston King to show cause why its decision to enter into an agreement with SCS and to make amendments to that agreement for the setting up of parking meters in Georgetown, should not be quashed.
The Chief Justice has also called on the council and Town Clerk to show cause why the decision authorising the Town Clerk to sign and operationalise contracts with SCS for the establishment of parking meters in Georgetown and all acts flowing from that decision should not be similarly quashed.
The order was granted based on an application for a judicial review that was made on behalf of Mohendra Arjune, a conveyancing clerk attached to the Cameron and Shepherd law firm.
Attorney Kamal Ramkarran, who filed the application on behalf of Arjune, explained to Stabroek News that the order might have the effect of suspending parking charges and penalties while the matter is pending.
“It is a preliminary order, which has the effect of requiring the City Council to give factual and legal reasons why the contract it entered into should not be set aside. Generally, orders nisi have the effect of putting a hold on whatever is challenged until a final ruling is made but even if that were not so it would be at least prudent in this case for the Council to stop charging people for parking and placing other sanctions on them in the event that a court finds that the contract and everything which flowed from it is unlawful,” he explained. “If the Council never had the power to enter into the contract, then everything that flowed from it would be a nullity: all fines, all charges for parking already paid and everything else,” he added.
A hearing is set for February 27, 2017.
There are seven grounds listed for the application, including what Ramkarran argues was the city’s failure to comply with mandatory prerequisites set out in Sections 230 and 231 of the Municipal and District
Councils’ Act Chapter 28:01.
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….”
Ramkarran also argues that by entering into the May 13, 2016 contract, M&CC have unlawfully and in an ultra vires manner delegated their statutorily derived power to erect and maintain parking meters under and in terms of Section 276(b) of the act and have acted contrary to Section 21 of the Civil Law Act of Guyana, which prohibits the establishment of monopolies in Guyana.
Under the terms of the May 13, 2016 contract, “during the term the city shall not operate and will neither permit the operation of paid public parking facilities not the operation of any metered parking systems other than that of the [SCS] save with the written permission of [SCS].” This condition remains unchanged in the amended contract, which was signed on September 16, 2016.
Ramkarran also argues that the current M&CC by signing the contract have fettered themselves and future councils for a period well in excess of their present term. He also argues that the decision to exempt teachers and employees of the Bank of Guyana from charges is arbitrary, discriminatory and contrary to the operation of the rule of law.
In an affidavit supporting the application, Arjune notes that the parking fees of approximately $37,120 have been “extremely onerous” to him. He further notes that media reports on February 13 stated the M&CC and SCS had “arbitrarily and without seeking any input from me or other persons affected by the parking fees, reduced the parking fees to about $112 an hour,” a sum which is still onerous.
Additionally, Arjune said he is fearful that they will “arbitrarily raise those fees again as soon as public protesting against the parking meters have stopped,” before arguing that if the contract itself is illegal, he should not be subject to any charges.