Malls Can Temporarily Utilize Their Open Spaces For Visitors' Leisure: Bombay High Court Directs BMC To Allow Mall To Hold 3-Day Ice Cream Fest

A division bench of Justice GS Kulkarni and Justice RN Laddha held that organising a limited festival in the Mall’s open space for leisure and amusement of visitors is not objectionable.

“citizens visit malls not only for the purpose of shopping but also, for leisure or for amusement, which they would derive not only from shopping activities but also, from visiting different specialized areas created in such malls like the food area, play area, amusement/cinema, etc… there is nothing objectionable and irregular if such malls utilize open spaces for organizing such limited festival for the leisure, amusement and/or enjoyment of visitors of the mall.”

The court also remarked that large segment of Mumbai’s population would be interested in such events organised in malls where open areas are available.

R City Mall sought permission for holding a 3-day ice cream fest in their courtyard from April 28 to April 30, 2023. BMC denied permission on the ground that a commercial activity is impermissible at the recreational space of the mall under Regulation 27 of Development Control and Promotion Regulations for Greater Mumbai, 2034 (DCPR 2034)

The court said that there is no restriction according to the Regulation 27 for recreational area to be used for the ice cream fest. The court noted that the ice cream fest is only for a limited period by installation of temporary stalls. There is no restriction to a temporary commercial activity under Regulation 27, the court said.

The court said that since there is no definition of “recreational activities” under DCPR-2034, the ordinary meaning has to be given to the term. Referring to Websters Third New International Dictionary and Concise Oxford English Dictionary, the court said that recreational activities would include amusement or enjoyment related leisure activities.

The court further noted that stalls for the purpose would be installed by persons who already have permanent licenced premises for selling the items inside the mall. Therefore, the mall is not seeking permission for a temporary unregulated commercial activity, said the court.

The Court held that an activity in which mall visitors enjoy a variety of edibles at a common space is a permissible recreational activity under DCPR-2034.

“…it is only an activity where the visitors of the mall would enjoy the benefit of a variety of edibles at a common open space, which, in our opinion, is a permissible recreational activity within the meaning of Regulation 27.”

The fest has to be permitted subject to any other compliance so that the open spaces can be utilised under Regulation 27, the court held. Thus, court directed BMC to grant appropriate NOC and/or permission to the petitioners, valid as per their application.

Case no. – Writ Petition (L) No. 11686 of 2023

Case Title – R Mall Developers Pvt. Ltd. & Anr. v. Municipal Corporation of Greater Mumbai