ORDER
S.A. Bobde, J.
1. This appeal is against the judgment and order
dated 1.4th February, 2001 [since reported in 2001(4) Mh.LJ, 624] by which the learned single Judge has held that illuminated neon signboard displayed by the respondent on her restaurant does not amount to an advertisement as contemplated under Sections 328 and 328A of the Mumbai Municipal Corporation Act, 1888.
2. The respondent runs a restaurant by the name “ASHOK RESTAURANT AND BEER BAR”. Above the entrance of the restaurant is a neon sign board. This sign board is approximately 3′ x 4′ and is wider than the entrance. The sign board bears the word “ASHOK” in the centre : a little below, on left side is the word “RESTAURANT” and to the right words “BEER BAR”. Between these two is an artistic sign depicting two hands
joined in the traditional “Namaste”. The whole thing is an illuminated neon sign board.
3. The only question before us is whether the appellant Municipal Corporation for Greater Mumbai was right in treating the said illuminated neon signboard as an advertisement within the meaning of Section 328A of the Act and therefore entitled’ to initiate action against the respondent for displaying such a sign board without its permission. The relevant extract of Section 328A of the Mumbai Municipal Corporation Act reads as follows :–
“328A. Regulation and control of advertisements.– (1) No person shall, without the written permission of the Commissioner, erect, exhibition, 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, 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;
Provided that, the power of the Commissioner under this subsection shall be subject to the regulations framed in this behalf.
Provided always that any permission under this section shall not be necessary in respect of any advertisement which is not an illuminated advertisement nor a sky-sign and which –
(a) is exhibited within the window of any building; (b) relates 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; or to the trade or business carried on by the owner of any tram-car, omnibus or other vehicle upon which such advertisement is exhibited; (c) ..... (d) ....." 4. Under "The policy guideline on grant of permission for display of advertisements by means of hoardings, neon-signs, balloons, etc.", advertisement is defined under "C" as follows :-- C. -- STATUTORY PROVISIONS : 1. ..... 2. .....
3. Advertisement may be taken to mean any device or representation put up on any premises in the nature of advertisement, announcement or direction by means of word, letter, model or sign and which is visible from some point of any street, and includes posters, hoardings,
illuminated signs, direction boards, boards on moving handcarts, cars, show-room etc. leading to conveying a message.”
5. Before we decide the scope of the term advertisement and whether the neon sign board of the respondent is an advertisement, we must make it clear that an advertisement is something different from a sky-sign which is governed by Section 328 of the Mumbai Municipal Corporation Act. Sky-sign has been defined by that section to 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 framework 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 …..”. Briefly speaking a sky-sign is one which is visible against the sky from some point in any street. In this case we are clearly not concerned with a sky-sign.
6. In an earlier writ petition filed by the respondent this Court had granted liberty to make a representation which was rejected by the Additional Municipal Commissioner (E. S.) who passed an order dated 6th October, 2000 rejecting the respondent’s contention and holding that the sign board in question amounted to an advertisement. He, therefore, held that licence would require for displaying the sign board. Thereafter the appellants issued a notice dated 5th June, 2000 requiring the respondent to take permission upon payment of necessary charges. It is this notice that is challenged in the present writ petition.
7. The learned single Judge has allowed the writ petition taking the view that the signboard in question only indicates to the consumer the place and the products which is available and therefore does not amount to an advertisement. He further held that the display of the board naturally and incidentally lead to sale of the product and service in the restaurant but that by itself could not make it an advertisement. According to the learned single Judge the illumination is merely to enable the public to read the board during night hours. The learned Single Judge has further observed that “during the day time the illumination is put of while at the night time its put on. If the same board “during the daytime cannot be construed as an advertisement I fail to understand how during night time it becomes an advertisement. Every person, every businessman and for that matter every industrialist has its legal right to display its name board on its premises to enable the public to know that what activities and under what name and title are carried on inside the premises”. The learned single Judge has further taken the view that the signboard in question is intended to enable a person in search of some food or beer to locate the place at night and therefore it does not amount to an advertisement.
8. The learned single Judge has heavily relied on a judgment of this Court in Misc. Petition No. 1380 of 1976 in the case of Bharat Petroleum Corporation Ltd. v. Municipal Corporation for Greater Bombay, decided on 15th February, 1980 where Lentin, J. held that a sky-sign showing the location of a petrol pump did not amount to an advertisement. That view of Lentin, J. was upheld by a Division Bench of this Court. The learned single Judge held in that case that the sign board in question in that case was a metallic board fixed on a pole erected by a Bharat Petroleum Corporation Limited displaying the name of the company. The said metallic board was illuminated at night by a small light at the top. The learned single Judge (Lentin, J.) had held that the board was merely an indication of the location of the petrol pump and not an invitation to the general public or the motorists to purchase the product. The division bench observed that whether a particular sign or sign board will amount to an advertisement will depend on several factors including nature of the thing advertised, the class of its consumers or users, the method and manner of its sale or distribution, the location of the selling or distributing establishment, the need for and the intention behind the placing of the sign or sign boards, the site where the sign board is fixed or placed, the size, the method and the manner of its display, etc. It is further held that what may amount to an advertisement in one case may not be so in another case and that no uniform criterion can be laid down to judge all signs and each sign will have to be judged on its own surrounding circumstances.
9. Mr. Singhvi, learned Counsel for the appellant placed great emphasis on the fact that the Judgment cannot be cited as determinative of whether the sign board in the present case is or is not an advertisement and that it would be necessary for us to consider whether the present sign board is an advertisement. We are in agreement with the learned Counsel for the appellant that whether the particular sign board is an advertisement or not must be decided on the facts of each case.
10. In this regard our attention was invited to the judgment of a learned single Judge of this Court in the case of Misc. Petition No. 203 of 1971 in between M/s. Glaxo Laboratories (India) Limited v. The Municipal Corporation of Greater Bombay, dated 30th June, 1977. That was a case which was similar in fact to the one at hand. The sign boards in question were illuminated sign containing the words “GLAXO” and “BDH”. The learned single Judge referred to the two meanings of the term “Advertisement” and came to the conclusion that if the illuminated display is merely intended to make the location of the premises known then it does not amount to an advertisement. Therefore, whether the illuminated display is an advertisement would depend upon the size of the display, the manner of the display and the necessity for such display. Having regard to the facts of that case the learned Judge came to the conclusion, that the words “GLAXO” and “BDH” in the illuminated sign board in the building amounted to an advertisement and cannot be accepted as a mere direction for the benefit of potential visitors at
night who may otherwise miss the company’s premises. We are of the view that the fact in the case before the learned single Judge are apposite to the facts in the present case and the illuminated signboard in question is liable to be regarded as an advertisement.
11. It is important to consider the meaning of the term “advertisement”. The discussion under the heading “ADVERTISING” Encyclopaedia, to be found in Encyclopaedia Britannica, 1969 Edition Vol. I, page 179, read as under:–
“Advertising : a form of paid public announcement intended to promote the sale of a Commodity or service, to advance an idea or to bring about some other effect desired by the advertiser. It is essentially a form of communication through such divers, media as hand bills, news papers, magazines, billboards, letters, radio and television broadcasts and motion pictures. The term is broad enough to include a wide range of types, from all small two-line entry in a newspaper or magazine to a (Spread of several full pages, or from a small sign in a shop window to a huge bill board with changing designs in coloured lights.”
Similarly in Collier’s Encyclopaedia, 1957 Edition, Vol. I at page 107
the following discussion appears:–
“Advertising : That portion of published information, whether seen or heard, the cost of which is born by business that expect to gain by the spread of the ideas expressed, usually commercial notices of goods and services for sale.”
In Webster’s THIRD NEW INTERNATIONAL DICTIONARY the
following meanings are to be found given to the very “advertise” ;
la : to make known to (someone) : give notice to : INFORM, NOTIFY … Obs : WARN, ADMONISH, 2 : to make generally known : call attention to : give notice of: a : to give publicity to, b : to make conspicuous, c(1) : to give public notice of: announce publicly esp. by a printed notice or through a radio or television broadcast, (2) : to call public attention to esp. by emphasizing desirable qualities so as to arouse a desire to buy or patronize.”
For the word “advertisement” the said dictionary goes on to indicate the
meaning as follows :–
“1 : the action of advertising : a calling attention to or making known : as a obs : WARNING, ADMONITION, b obs : an informing or notifying : NOTIFICATION c : a calling to public attention : PUBLICITY.
2a : archaic : a statement calling attention to something : NOTICE, b : a public notice : esp : a paid notice or announcement published in some public print (as a newspaper, periodical, poster, or handbill) or broadcast over radio or television.”
12. On a plain construction of Section 328 reproduced (supra) we find that in term permission of the Municipal Commissioner is not required in respect of any advertisement which is not an illuminated advertisement nor a sky-sign and which relates to the trade or business carried on within the land or building upon which such advertisement is exhibited : vide proviso to Section 328A.
13. Having regard to the meaning of the term advertisement we are of the view that the illuminated neon sign board in question is thus not merely intended to indicate the location of the restaurant to passersby. In fact there is an ordinary sign which is not illuminated and which sufficiently indicates the name of the restaurant. This unilluminated sign is next to the illuminated sign board in question. Having regard to the size of the illuminated sign board, we are clearly of the view that it is intended to call the attention of the customers to the restaurant where service is provided. In our view, therefore, the illuminated signboard is clearly an advertisement.
14. We, therefore, allow the appeal and set aside the order of the learned single Judge dated 14th February, 2001 passed in Writ Petition No. 2223 of 2000. There shall be no order as to costs.
15. Mr. Singhvi, learned Counsel appearing for the appellants states that the Corporation will not take any steps for coercive recovery of fees or removal of the neon sign board for a period of six weeks.
All Authorities concerned to act on the ordinary copy of this order duly authenticated by Associate of this Court.
P. A. to give ordinary copy of this order to the parties concerned.
16. Appeal allowed.