Full Judgment Text
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CASE NO.:
Appeal (civil) 4678 of 2005
PETITIONER:
ICICI BANK & Anr.
RESPONDENT:
Municipal Corporation of Greater Bombay and others
DATE OF JUDGMENT: 04/08/2005
BENCH:
P. Venkatarama Reddi & P.P. Naolekar
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Civil) No. 24215 of 2002)
P.P. Naolekar, J.
Leave granted.
In the present appeal the appellants ICICI
Bank Limited has challenged the order of the Bombay
High Court whereby the High Court has dismissed the
writ petition filed by the appellant holding that the sign
boards fixed above the ATM Centers of the ICICI Bank
do amount to an advertisement and therefore the
action taken by the Municipal Corporation of Greater
Bombay by issuance of notice is in accordance with the
law. The facts, in brief are that:
Sometime up to the year 2000 the appellant No.1,
ICICI Bank has installed ATM Centers and Extension
counters, Bank Branches at 64 locations in the city of
Bombay for the convenience of its depositors. Certain
signboards were fixed above the entry of the ATM
centers and extension counters indicating their location.
They are illuminated to indicate the locations of the
ATM centers. The Municipal Corporation did not
approve of putting up of the illuminated signboards of
ATM centers and therefore issued notice to the
appellant under Section 328 and 328-A of the Bombay
Municipal Corporation Act 1888 (hereinafter to be
referred to as ‘The Act’). The contents of the notice
are that the appellant has displayed at its premises sky
sign/Glow Sign/Neon Sign/Illuminated Boards without
the permission of the Bombay Municipal Corporation.
It was incumbent upon the appellant before putting up
such signboards etc., to have taken the permission and
made the required payment. The notice required the
appellant to make certain payment towards by filling
the prescribed form within three days of the receipt of
the notice, failing which BMC would take necessary
action, including defacing/removal of the boards at
appellant’s cost. The notice was replied by the
appellant contending therein that the appellant does
not admit any of the allegations mentioned in the
notice and requested the BMC not to take any action as
contemplated in the said notice. Thereafter in the
month of August 2003 the appellant filed a writ petition
in the High Court of Bombay alleging that the
impugned notices which were served on the appellant
bank are wholly without jurisdiction and without the
authority of law and that the same violated the
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fundamental and other rights of the appellant bank and
therefore the same are illegal, null and void.
According to the appellant the signboards fixed over
the ATM Centers or Extension counters does not
amount to advertisement as specified in Section 328A
of the Act nor do they come under the definition of sky-
sign as defined in Section 328 of the Act.. They merely
tell the existing account holder about the location of the
ATM booth. The said signboards are only for the
guidance of the public and that the services rendered
by the appellant bank are not advertised. The
signboards are essential for the working and business
of the appellant bank and does not amount to
advertisement and therefore the notices issued by the
Bombay Municipal Corporation, requiring the appellant
to make the payment of the amount is illegal. The High
Court dismissed the writ petition filed by the appellant
on the ground that the controversy involved in the case
is squarely covered by the judgment of the Apex Court
in Municipal Corporation of Greater Bombay Vs.
Bharat Petroleum Corporation Ltd. JT 2002 (3)
SC 452 and held that the signboards fixed above the
ATM Centers of the appellant Bank do amount to an
advertisement. The impugned notices, therefore,
cannot be faulted. In consequence thereof the writ
petition filed by the appellant was dismissed.
The learned senior counsel Shri R.F. Nariman has
urged that the illuminated signboards of the appellant
Bank does not fall within the definition of sky-sign in
Section 328 of the Bombay Municipal Corporation Act
1888 and therefore Section 328 of the Act has no
application. Hence, the High Court committed an error
in applying the ratio laid down by this Court in the
matter of Municipal Corporation of Greater
Bombay’s case (supra). The signboards fixed on the
ATM Centers of the Bank and its Extension Counters
only indicates to its customers about the location of
the Bank/ATM Centers to facilitate them to carry out
the banking transaction at any time of the day or night
and is in the nature of the in-house facility provided to
the customers of the bank and does not in any way
convey message of commercial or business activities
of the appellant bank. The illuminated signboard does
not relate to the business or commercial activities of
the bank nor does it propagate the ideas with regard
to the goods or services rendered by the party. It
merely displays as to where the ATM Center is located
and therefore the action of the bank putting up the
illuminated signboards does not fall within the ambit of
Section 328A of the Act. To counter this argument, Mr.
V.R. Reddy, learned senior counsel submitted that in
the facts of the case, the decision given by this Court in
the case of Municipal Corporation of Greater
Bombay (supra) is directly on point and the ratio
decided covers the case. In any case, the illuminated
signboards at the entry of the ATM Center and
Extension Counter does not indicate their locations
alone but attract the prospective customers also to
open their accounts with the ICICI Bank and in that
manner it propagates ideas with regard to the goods or
the services rendered by Bank and therefore would be
covered under Section 328A of the Act.
Before we consider the respective submissions
made by the counsel, it would be fruitful to read the
relevant provisions of Section 328 and 328A of the Act.
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The necessary extracts of the relevant provisions for
adjudicating the question involved in this care are as
under:
328. (1) No person shall, without the written
permission of the Commissioner, erect, fix or
retain any sky-sign, whether now existing or not,
[where a sky-sign is a poster depicting any scene
from a cinematographic film, stage play or other
stage performance, such permission shall not be
granted, unless prior scrutiny of such poster is
made by the Commissioner and he is satisfied that
the erection or fixing of such poster is not likely to
offend against decency or morality. No permission
under this section shall be granted, or renewed,
for any period exceeding two years from the date
of each such permission or renewal].
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(3) If any sky sign be erected, fixed or
retained contrary to the provisions of this section,
or after permission for the erection, fixing or
retention thereof for any period shall have expired
or become void the Commissioner may, by written
notice, require the owner or occupier of the land,
building or structure, upon or over which the sky-
sign is erected, fixed or retained, to take down
and remove such sky-sign.
The expression ’sky sign’ shall in this section
mean any word, letter, model, sign, device or
representation in the nature of an advertisement,
announcement or direction, supported on or
attached to any post, pole standard frame-work or
other support wholly or in part upon or over any
land, building or structure which, or any part of
which sky-sign, shall be visible against the sky
from some point in any street and includes all and
every part of any such post, pole, standard
framework or other support. The expression ’
sky-sign’ shall also include any balloon, parachute,
or other similar device employed wholly or in part
for the purposes of any advertisement,
announcement or direction upon or over any land,
building or structure or upon or over any street,
but shall not include:
(a) any flagstaff, pole, vane or
weathercock, unless adapted or used wholly or
in part for the purpose of any advertisement,
announcement or direction;
(b) any sign, or any board, frame or other
contrivance securely fixed to or on the top of
the wall or parapet of any building, or on the
cornice or blocking course of any wall, or to the
ridge of a roof.
328A. (1) No person shall, without the
written permission of the Commissioner erect,
exhibit, fix or retain any advertisement whether
now existing or not, upon any land, building, wall,
hoarding or structure. [Where an advertisement
depicts any scene from a cinematographic film,
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stage play or other stage performance, such
permission shall not be granted, unless prior
scrutiny of such advertisement is made by the
Commissioner and he is satisfied that the erection
or exhibition of such advertisement is not likely to
offend against decency or morality;]
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(3) If any advertisement be erected,
exhibited, fixed or retained contrary to the
provisions of this section after the written
permission for the erection, exhibition, fixing or
retention thereof for any period shall have expired
or become void, the Commissioner may, by notice
in writing, require the owner or occupier of the
land, building wall, hoarding or structure upon
which the same is erected, exhibited, fixed or
retained, to take down or remove such
advertisement
By virtue of Section 328 of the Act, no person is
permitted without the written permission of the
Commissioner to erect, fix or retain any sky-sign, and
the permission granted by the Commissioner or the
renewal thereof shall be for any period exceeding two
yeas from the date of each such permission or renewal.
Sub-s.(3) authorizes the Commissioner by written
notice to direct the owner or occupier of the land,
building or structure upon or over which the sky-sign is
erected, fixed or retained to take down and remove
such sky-sign, if such sky-sign is fixed, erected or
retained contrary to the provisions of Section 328 of
the Act. According to Sub-s.(3) "Sky-sign" shall mean
any word, letter, model, sign deice or representation in
the nature of an advertisement, announcement or
direction, supported on or attached to any post, pole,
standard frame-work or other support wholly or in part
upon or over any land, building or structure which, or
any part of which sky-sign, shall be visible against the
sky from some point in any street and includes all and
every part of any such post, pole, standard framework
or other support. The expression "sky-sign" shall also
include any balloon, parachute, or other similar device
employed wholly or in part for the purpose of any
advertisement, announcement or direction upon or over
any land, building or structure or upon or over any
street. Sub-clause (a) and sub-clause (b) has a
reference to what shall not be included to be the sky-
sign. The reading of this section gives a clear cut
indication that the sky-sign shall not be erected, fixed
or retained unless written permission to that effect is
obtained from the Commissioner and the sky-sign shall
mean any word, letter, model, sign, device or
representation balloon parachute or other similar
device which is in the nature of an advertisement,
announcement or direction or employed for the purpose
of advertisement, announcement or direction, that is to
say, if it is in the nature of advertisement,
announcement or direction, it would be a sky-sign,
provided the sign is visible against the sky from some
point in any street which shall include part of any such
post, pole, standard frame-work or other support upon
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which the sky-sign rest. For any advertisement,
announcement or direction to be a ‘sky-sign’, it is not
necessary that the sign-boards are illuminated. The
necessary ingredient of the sky-sign are that it should
be in the nature of advertisement, announcement or
direction, and should be visible against sky from some
point in any street. So far as Section 328A is
concerned, no person is permitted to erect, exhibit, fix
or retain any advertisement upon any land, building,
wall, hoarding or structure without the written
permission of the Commissioner. Second proviso to
sub-s.(1) exempts the person from taking permission if
the advertisement is not illuminated or a sky-sign and
which is exhibited within the window of any building or
is related to the trade or business carried on within the
land or building upon which such advertisement is
exhibited or to any sale or letting of such land or
building or any effects therein or to any sale,
entertainment or meeting to be held upon or in the
same building or to any trade or business carried on
by the owner of any tram-car, omnibus or other vehicle
upon which such advertisement is exhibited.
Therefore, if the advertisement is not illuminated
advertisement nor is a sky-sign and is being put at a
place provided under clauses (a) and (b) of Section
328A of the Act, permission of the Commissioner is not
required. The moment the advertisement is illuminated
or is a sky-sign, even if it is exhibited or rested on the
place mentioned in clauses (a) and (b) of Section 328A
of the Act, the permission of the Commissioner is
necessary. Sub-clause (3) authorizes the
Commissioner to direct any person in breach of Section
328A to take down and remove such advertisement.
For application of Section 328, it is necessary that
the word, model, sign or device or representation is in
the nature of advertisement, announcement or
direction. If it does not fall within the exception
provided under the proviso, the permission of the
Commissioner is necessary. It may be noted that
under Section 328 it is not merely the advertisement
but even something which is in the nature of
advertisement is comprehended whereas under Section
328A, it is the advertisement alone which would attract
the provisions of Section 328A of the Act. The
language used in both the provisions make it explicitly
clear that these provisions operate in somewhat
different fields and the phrase ‘advertisement’ used in
both Sections in its context pronounces a different
meaning of the word. The application of these
Sections depends upon the kind of the sign-boards or
the illuminated boards etc.
Both the counsel have extensively argued the
question of applicability of the decision rendered by this
Court in the matter of Municipal Corporation of
Greater Bombay (supra), as decision of the High
Court is based on this decision. It is obvious from the
decision in the case that the Court has adjudicated and
decided mainly the scope of sub-s.(3) of Section 328
of the Act. The Court has not decided on the
applicability, scope and ambit of Section 328A of the
Act. The definition of ‘sky-sign’ came up for
consideration before the Court. This Court laid
emphasis on the expression "in the nature of an
advertisement" in the definition of sky-sign in
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Paragraph 10 of the Judgment which expression is not
found in Section 328A of the Act.
The decision in the matter of Municipal
Corporation of Greater Bombay (supra) has no
relevance to the facts involved in the case before us for
more than one reason. In Paragraph 6 of the
Judgment, the Court says that although the relevant
statutory provisions are Section 328/328A of the Act,
the issues raised have to be considered and decided
mainly on the scope of sub-section (3) of Section 328
of the Act. The paragraph makes it clear that the Court
has considered the scope and reach of Section 328 of
the Bombay Municipal Corporation Act 1888. That
apart, in Paragraph 10 of the Judgment the Court held
that "the indication given by emphasis supplied to
some of the words used in the provision in question as
well as the words "in the nature" of an advertisement,
announcement or direction’ would go to show that it is
not a must to be that but is enough if it is ‘in the
nature of’ that which is specified. The three words
required to be construed cannot be said to admit of
any one particular meaning alone but capable of being
understood by their general or interrelated meaning
suitable for the context". Thus, much emphasis was
placed on the expression "in the nature of." The Court
in Paragraph 9 of course has said that in common
parlance ‘advertisement’ means to make publicly
known an information by some device and to draw or
attract attention of public/individual concerned to such
information. It need not necessarily be to sell only or
solely for commercial exploitation. Thus, it was pointed
out that the advertisement would not necessarily mean
the information supplied to the public or an individual
solely for commercial exploitation. As it appears to us,
the observation of the Court is made in the context of
Section 328 of the Act where the phrase
’advertisement’ is used in limited sense in as much as it
includes information to the public and is in the nature
of advertisement, although not an advertisement pure
and simple.
In the present case we are not considering the
scope and ambit of Section 328 of the Act, as,
admittedly the advertisement in question is not sky
sign within the meaning of Section 328 of the Act. The
ratio and effect of the judgment is required to be
ascertained with reference to the question of law as
decided by the Court. The ratio of the judgment or the
principle upon which the question before the Court is
decided is alone binding as a precedent. The decision of
the Supreme Court upon a question of law is
considered to be a binding precedent, and this must be
ascertained and determined by analyzing all the
material facts and issues involved in the case.
In the matter of Paisner versus Goodrich
(1955) 2 All ER 330,332, Lord Denning in his
Judgment has held:
"When the judges of this Court give a
decision on the interpretation of an Act of
Parliament, the decision itself is binding on them
and their successors ( see Cull v. Inland
Revenue Commissioners), Morelle, Ltd. v.
Wakeling. But the words which the Judges used in
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giving the decision are not binding. This is often a
very fine distinction, which will best be only be
expressed in words. Nevertheless, it is a real
distinction, which will best be appreciated by
remembering that, when interpreting a statute,
the sole function of the Court is to apply the
words of the statute to a given situation. Once a
decision has been reached on that situation, the
doctrine of precedent requires us to apply the
statute in the same way in any similar
situation; but not in a different situation.
Whenever a new situation emerges, not covered
by previous decisions, the courts must be
governed by the statute and not by the words
of the judges\005\005."
In Madhav Rao Scindia Vs. Union of India,
AIR 1971 S.C. 530 , this Court said that it is not
proper to regard a word, a clause or a sentence
occurring in a judgment of the Supreme Court,
divorced from its context, as containing a full
exposition of the law on a question when the question
did not even fall to be answered in that judgment.
In the matter of C.I.T. Vs. Sun Engineering
works (P) Ltd, (1992) 4 S.C.C. 363 (Page 363),
Justice Anand (As His Lordship then was), speaking for
the Court, has said that it is neither desirable nor
permissible to pick out a word or a sentence from the
Judgment of the Court, divorced from the context of
the question under consideration and treat it to be the
complete ‘law’ declared by the Supreme Court. The
judgment must be read as a whole and the
observations from the judgment have to be considered
in the light of the questions which were before the
Supreme Court. The decision on the question involved
in the case in which it is rendered and while applying
the decision to the later case, the Courts must
carefully try to ascertain the true principle laid down by
the decision and not to pick out words or sentence from
the judgment divorced from the context of the question
under consideration by the Court.
In the case of Municipal Corporation of Greater
Bombay (supra), Section 328A was not at all
interpreted by this Court. For the case to be a binding
precedent, fundamental requirement would be, that the
law pronounced should result from the issues raised
before the Court between the parties and argued on
both sides. In the matter of Municipal Corporation of
Greater Bombay the definition of ‘sky-sign’ under
Section 328 came up for consideration. In reaching the
conclusion that the huge metallic board exhibited by
BPC Petrol Bunk on a pole with the name of the
Company and its symbol (Shell symbol) was a sky-sign,
this Court laid emphasis on the expression "in the
nature of an advertisement" occurring in the definition
of ‘sky-sign’ in Paragraph 10 which expression is not
to be found in Section 328-A. While interpreting Section
328 and construing the words ‘in the nature of an
advertisement, announcement and direction’, this Court
held that the advertisement need not necessarily be
only or solely for commercial exploitation whereas
Section 328A of the Act speaks about ‘advertisement’
alone and not ‘in the nature of an advertisement’.
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Normally the ratio of the case shall be deduced from
the facts involved in the case and the particular
provision of law which the Court has interpreted and
the decision shall be read with reference to and in the
context of particular statutory provisions involved in
the matter.
In our considered opinion the decision rendered in
the matter of Municipal Corporation of Greater
Bombay (supra) is not a decision on the question of
interpretation of Section 328A of the Act, particularly
the phrase ‘advertisement’ used therein.
The next question that arises for consideration is
whether notices issued by the Corporation to the
appellant-ICICI Bank are per se illegal or without
authority of law as putting up the sign boards of ATM
centers at different places by the bank could out-rightly
be said not to be an advertisement and thus does not
attract the provision of Section 328A of the Corporation
Act. To consider this aspect we have to see what shall
be an advertisement for the purposes of Section 328A
of the Act. The dictionary definitions of the word
’advertisement’ are as under :-
BLACK’S LAW DICTIONARY,8TH EDITION
Advertising : 1..The action of drawing the
public’s attention to something to promote its
sale. 2. The business of producing and circulating
advertisements
LAW AND COMMERCIAL DICTIONARY
Advertisement : Notice given in a manner
designed to attract public attention. Edwards v.
Lubbock Country, Tex Civ. App., 33, S.W.2d 482,
482. Information communicated to the public, or
to an individual concerned, as by handbills,
newspaper, television, bill-boards, radio. First
Nat. Corporation v. Perrine, 99 Mont 454, 43 P.2d
1073, 1077.
THE NEW ENCYCLOPAEDIA BRITTANICA VOLUME-I
Advertising, the techniques used to bring
products, services, opinions, or causes to public
notice for the purpose of persuading the public to
respond in a certain way toward what is
advertised. Most advertising involves promoting a
good that is for sale, but similar methods are used
to encourage people to drive safely, to support
various charities, or to vote for political
candidates, among many other examples.
COLLINS DICTIONARY OF THE ENGLISH
LANGUAGE
Advertisement \026 any public notice, as a printed
display in a newspaper, short film on television,
announcement on radio, etc., designed to sell
goods, publicize an event, etc.
Advertising \026 1) the action or practice of drawing
public attention to goods, services, events etc., as
by the distribution of printed notices,
broadcasting, etc. 2) the business that specializes
in creating such publicity, 3) advertisements
collectively; publicity.
THE CHAMBERS DICTIONARY
Advertisement - the act of advertising; a public
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notice with the purpose of informing and / or
changing public attitudes and behaviour; a short
performance recorded for radio, T.V. etc. to
advertise goods or services; news.
An advertisement is a matter that draws attention
of the public or segment of public to a product, service,
person, organization or line of conduct in a manner
calculated to promote or oppose directly or indirectly
that product, service, person, organization or line of
conduct intended to promote sale or use of product or
range of products. An advertisement is an information
that producer provides about its products or services.
An advertisement tries to get consumers to buy a
product or a service. An advertisement is generally of
goods and services and is an information intended for
the potential customers and not a mere display of the
name of the company unless the same happens to be a
trade mark or trade name.
It is well settled that ordinarily the words used in
the statute are to be understood in their natural,
ordinary and popular sense. The broad principles
underlying the construction and interpretation of the
word or phrase in the statute is succinctly extracted
from the leading authorities and work of authors and
compiled in the book "Principles of Statutory
Interpretation" (9th) Edn. 2004 by Justice G.P. Singh,
Chapter 2, page 86 which reads :-
"When it is said that words are to be understood
first in their natural, ordinary or popular sense,
what is meant is that the words must be ascribes
that natural, ordinary or popular meaning which
they have in relation to the subject-matter with
reference to which and the context in which they
have bee used in the statue. BRETT, M.R. called it
a ’cardinal rule’ that "Whenever you have to
construe a statute or document you do not
construe it according to the mere ordinary general
meaning of the words, but according to the
ordinary meaning of the words as applied to the
subject-matter with regard to which they are
used". "No word", says PROFESSOR H.A. SMITH
"has an absolute meaning, for no words can be
defined in vacuo , or without reference to some
context". According to SUTHERLAND there is a
"basic fallacy" in saying "that words have meaning
in and of themselves", and "reference to the
abstract meaning of words", states CRAIES, "if
there be any such thing, is of little value in
interpreting statutes". In the words of JUSTICE
HOLMES : "A word is not a crystal transparent and
unchanged; it is the skin of a living thought and
may vary greatly in colour and content according
to the circumstances and the time in which it is
used." Shorn of the context, the words by
themselves are "slippery customers". Therefore,
in determining the meaning of any word or phrase
in a statute the first question to be asked is \026
"What is the natural or ordinary meaning of that
word or phrase in its context in the statute? It is
only when that meaning leads to some result
which cannot reasonably be supposed to have
been the intention of the Legislature, that it is
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proper to look for some possible meaning of the
word or phrase".
Section 328A prohibits without prior permission of
Commissioner, erection, exhibition of advertisement.
The advertiser need not ask for permission if the
advertisement is not illuminated or is not a sky sign,
provided it is exhibited in window of any building, or
relates to trade or business carried on within that land
or building or when it relates to sale or letting of that
property or in reference to any sale, entertainment or
meeting organized therein, or it relates to business of
railway company. Exceptions referred in the provision
clearly has nexus and relevance to the business or
trade or commercial activities.
The context in which the word advertisement has
been used in Section 328A of the Corporation Act and
in the commercial and ordinary parlance it must have
direct or indirect connection with the business, trade or
commerce carried out by the advertiser. It must have
some commercial exposition. The advertisement would
be for the purpose of directing or soliciting customers
to the product or service prominently shown in the
advertisement. If ordinary parlance meaning is not
given to the word advertisement in Section 328A it will
create anomalous position, in as much as a simple
name board put on the house to indicate who is
residing in the premises, would also be an
advertisement; a name board or sign board of a trader
visible to the public or identifying the place of business
would also be an advertisement. In our considered
opinion advertisement within the meaning of Section
328A of the Corporation Act must primarily have the
commercial purpose and should be indicative of
business activity of the displayer with a view to attract
the attention of people to its business.
In the present case the appellant has put up an
illuminated ATM board at various sites and as per the
appellant it has been put only to tell the existing
customers and others about the location of the ATM
centers, which in itself is in the interest of public at
large and not to attract new customers for opening the
bank account. Normally, the ATM centers enable the
customers to carry out the banking activities or
transactions at any time , day or night and even on
gazetted holidays. They are in the nature of public
service as they enable the customers to do away with
the need to keep large sum of cash in their house ;
they are able to have access to the money in their
account even on holidays and emergency. The ATM
centers have a sign board over them that are
illuminated and tell about the fact that there lies the
ATM Center of the bank in that premises. The fact that
there is an ATM center in the premises tells that the
appellant bank is providing Automatic Teller Machine
service there and hence the service provider is clearly
identified. The communication in this is direct to the
account holders and also the prospective account
holders. The kind of information supplied of the
location of the service provided may also be construed
of commercial exploitation indirectly, as the sign
boards may not aim at the existing customers only but
they may also affect the decisions of the prospective
customers. They tell the prospective customers that
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the service of the ATM round the clock is being made
available by the appellant bank which would influence
the prospective customers to make a decision about
which service provider he or she has to choose. The
sign board also helps the people to find out which bank
is offering better services as compared to the other
bank. The fact that a Bank has more ATM centers than
the other banks, in the competitive trade and business,
provides the incentive to the people to choose that
Bank. The fact that one bank has an ATM center in the
given location helps them to get more account holders
in that area. This also serves the commercial interest
of the bank. Whether particular action is an
advertisement or not would depend on whether the
person wants to promote directly or indirectly his
product or service. If by any communication, the
communicator tries to influence the people to buy his
product or service or attract towards his product or
service then it would be a guiding factor to identify
whether a particular communication of the
communicator tantamounts to be an advertisement.
From the aforesaid analysis, in all fact situation
and circumstances, at the outset it cannot be said that
the sign boards indicating ATM centers cannot have
commercial interest but would only tell about the
location of the ATM centers to the existing account
holders only. Whether signboard of ATM Centre
tantamounts to be an advertisement or not would
depend upon the facts of each case, depending on the
number of ATM centers established by a particular bank
in a particular locality or place or even city, to have
the flavour of commercial or business interest of the
service provider. In the present case no exercise was
undertaken by the municipal authorities or the Bombay
High Court before the High Court had reached to the
conclusion that the sign boards of the ATM center put
up by the ICICI bank at different locations would be an
advertisement within the meaning of Section 328A of
the Corporation Act. In fact the notices issued by the
bank to the appellant are under Section 328, 328A of
the Corporation Act. The reach, ambit and scope of
these sections are quite different and they operate in
different fields. They do not completely overlap. In the
circumstances, it was appropriate for the Corporation to
issue notices to the appellant either under Section 328
or under Section 328A of the Corporation Act and
notice should not have been issued under both
Sections for the same sign board. The Bombay
Municipal Corporation Authorities seem to be in a state
of doubt and hence the notices clearly do not specify
under which section they propose to take action. As we
have made it clear that in the present case the sign
boards of ATM centers, which are not sky signs, are not
covered under the provisions of Section 328 of the
Corporation Act, the notices issued shall be deemed to
have been issued under Section 328 A of the
Corporation Act and the Corporation shall decide the
question of advertisement under Section 328A of the
Act after indicating the bank a fresh date of hearing.
For the reasons stated above the appeal is
allowed and judgment and order of the High Court is
set aside. Fresh steps can be taken in the light of the
observations in this judgment. In the circumstances of
the case we do not impose any cost and the parties
shall bear their own costs.
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