Call of the Malls
By Vikram Kilpady
The Bombay High Court recently ruled in favour of a mall in the outskirts of Mumbai for it to hold an ice-cream festival against the refusal of the Brihanmumbai Municipal Corporation (BMC) to permit it. The division bench of Justice GS Kulkarni and Justice RN Laddha noted people don’t visit malls only to shop, but also for leisure and amusement. The bench found there is nothing objectionable in malls utilizing open spaces for holding such festivals for their visitors’ enjoyment.
The mall, R-City, in Ghatkopar, had moved the High Court against a BMC order that refused to issue it a no-objection certificate for the ice-cream festival, to be held in its courtyard from April 28 to 30. The BMC had denied permission on the grounds that such commercial activity was not allowable in the mall’s open spaces. The BMC N Ward Assistant Engineer (Building & Factories) II had written about this to the mall on February 15, in response to a complaint by one Mayur Shah. The BMC officer stated the recreation space is a free area meant for recreational purposes only and such commercial activity cannot be carried out in the said spot. This view was accepted to be the correct position under Regulation 27 of Development Control and Promotion Regulations for Greater Mumbai, 2034.
Regulation 27 (g) (ii) mandates that open spaces available in layouts should be used only for recreational purposes. The bench noted that the said regulation doesn’t specify that it can’t be used for an ice-cream festival as the mall wanted and, further, it didn’t bar any temporary commercial activity. The ice-cream festival was planned to be held with temporary stalls and would not have violated the regulation. The bench observed that the Development Control and Promotion Regulations do not define “recreational facilities” as such. The Court then said an ordinary meaning needs to be arrived at in lieu of a definition. After consulting both Webster’s Third New International Dictionary and the Concise Oxford Dictionary, the bench noted that it was clear that recreational activities would include amusement or enjoyment-related leisure activities. “Citizens visit malls not only for shopping but also for leisure or for amusement, which they would derive not only from shopping activities but also from visiting different areas in such malls like the food area, play area, amusement/cinema, etc. In such context, 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. It is in such manner Regulation 27 would be required to be understood,” the Court said.
The bench then questioned the BMC as to how it could restrict the festival as per Regulation 27 when the regulation’s language itself is neither explicit nor implicit. Further, the bench noted in its order that the festival stalls will be put up by people with shops in the mall for the enjoyment of visitors in the common space. The BMC conceded and said it would issue the certificate necessary for holding the ice-cream festival.
Since the economic liberalisation of 1991, malls have been a runaway hit. The mall was an essential turnpike for inducing revolution in the Indian middle class’ consumption patterns. By the mid-1990s, mini-malls were popping up everywhere to cash in on the global phenomenon. Central Delhi’s vast, subterranean Palika Bazar shopping complex and its cut-price deals were the closest thing to a mall, but it was squalid. In contrast to the dowdy, almost Soviet-style uniformity of the DDA shopping centres that dot Delhi’s neighbourhoods, the mall was an air-conditioned expanse in which one or two, or a half-a-dozen colleagues, classmates or frenemies, for that matter, could gather for hours of huddled conversation without being shooed away. Yes, noise-makers would get the boot soon enough, but hanging out was legit and okay in these pale imitations of the malls of America.
Hanging out was also okay in the hip movie hall complexes of Delhi and, grudgingly, the NCR, but without air conditioning these glamorous locales were anathema. Remember, these were the years when climate change was only distantly disquieting, and not the immediate, urgent monster it is now, cascading with hailstones amid summer heatwaves, worsening by the month across the whole of India.
Dictionaries tell us the word “mall” traces its origin from the game pallamaglio, an Italian version of croquet, played in Southern Europe’s street corners, from where it made inroads into France and England, where it eventually died away. The empty stretches where the sport was played became home to gentlemen’s clubs, from whence came the name Pall Mall, a marquee cigarette brand. When the clubs of Pall Mall and the stretch from Buckingham Palace to Trafalgar Square faded, the spaces they left became malls in the resurgence post-World War II.
In the mid-20th century, America got its first enclosed mall in 1956, in Minnesota’s Minneapolis. It is debatable which is the first mall to open in India and what size ought a shopping complex to be for it to count as a mall. The first malls in India are said to be Ansal Plaza in Delhi, Crossword in Mumbai and the Spencer Plaza in Chennai, which opened circa 1999. Nearly 25 years later, these look like relics compared to the ultra-swank ones bedecked with palm trees to ape the Dubai vibe or the steel, glass and concrete ones in the NCR and elsewhere.
The Bombay High Court’s ruling in favour of utilising open spaces for temporary commercial activity apart from recreational purposes has been the norm in most malls. In North India, some shops themselves occupy what is otherwise open space. Be it a two-table coffee shop or a chocolaterie wrapped around an escalator, the upmarket versions of space utilized in the atriums of malls are plush and plentiful. Any time a religious festival or an observance is near, the malls become mini-melas, rivalling temple fairs.
Malls turn into mehendi markets ahead of Karwa Chauth, Diwali, Holi and what not, the level of sophistication depending on which mall and where. The farther from the centre of the metropolis, the more quaint they become. While it may be neighbour’s envy or spite that led to the Mumbai mall order, it sets a precedent for malls in the country. But with legal consent, how far this can go in the garb of temporary commercial activity is anyone’s guess. Given that malls come from play alleys, it will not be long before someone else approaches the courts for relief after the whole shopping experience has been turned into a scaled-up sabzi mandi.
—The writer is Editor, IndiaLegalLive.com