Bombay High Court: In a Writ Petition challenging rejection of application for conducting temporary ‘Ice-Cream Fest’ at Ghatkopar’s R City Mall from 28-4-2023 to 30-4-2023 by the Municipal Corporation of Greater Mumbai (‘MCGM’) on the ground that it is a commercial activity not permissible at a recreational/open space of the mall, the Division Bench of G.S. Kulkarni* and R.N. Laddha, JJ. Did not find any such restriction and directed the Municipal Corporation to grant permission/NOC to conduct Ice-Cream Fest at R Mall.
A communication dated 18-4-2023 rejected the petitioner’s application seeking No-Objection Certificate for temporary ‘ice-cream fest’ to be held at R City Mall from 28-4-2023 to 30-4-2023 on the ground that it is a commercial activity not permissible at a recreational/open space of the mall. The said communication also referred to earlier communication referring to a complaint stating that recreation area is a free area specifically meant for recreational purposes.
The Court considered the question of whether the Municipal Corporation is correct in applying provisions of Regulation 27, particularly Regulation 27(1)(g)(ii) of Development Control and Promotion Regulations for Greater Mumbai (DCPR) in rejecting the petitioner’s application for conducting Ice-cream Fest.
The Court perused the said Regulation and did not notice any restriction for recreation area in the mall for the purpose proposed by the petitioner. The Court further clarified that the activity undertaken is for 3 days by installation of temporary stalls and the Regulation clearly permits ‘recreational activities’. It further added that nothing has been provided under Regulation 27(g)(ii) restricting any temporary commercial activity as claimed and interpreted by the Municipal Corporation.
The Court observed that in the absence of definition of ‘recreational activities’, ordinary and natural meaning must be given and concluded that such activities would include ‘amusement or enjoyment-related leisure activities’. The Court commented that citizens don’t only visit malls for shopping but also for leisure/amusement which may also be derived from specialized areas created in the open spaces of such malls.
Noting that the temporary stalls would be installed by persons already having permanent licensed premises for selling such items inside the mall, the Court opined that it is a permissible recreational activity within the meaning of Regulation 27. The Court said that such activities are intended to benefit the public at large organized in public places like malls where open areas are available. It further observed that subject to any other compliances, such temporary activity has to be permitted for utilizing open spaces as permissible under Regulation 27(1)(g)(ii).
The Court directed the Municipal Corporation concerned to grant NOC to the petitioners.
[R Mall Developers Pvt. Ltd. v. Municipal Corporation of Greater Mumbai, 2023 SCC OnLine Bom 925, decided on 26-4-2023]
Order by: Justice G.S. Kulkarni
