Important point
Advertisement within the meaning of Section 328A of the Bombay Municipal 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 the people to its business.

Headnote:(i) Bombay Municipal Corporation Act, 1888—Sections 328, 328A—Putting up of illuminated signboards of ATM Centers and Extension counters—Notices issued alleging that it was incumbent upon appellant to have taken permission and made the required payment—Writ petition filed by appellant alleging that impugned notices are illegal—According to appellant signboards fixed over ATM Centers or Extension counters merely till existing account holders about the location of ATM booth—Appellant’s case that the said signboards are only for guidance of the public and that services rendered by appellant bank are not advertised—High Court dismissed writ petition and held that the signboards fixed over ATM Centers of appellant Bank do amount to an advertisement—Whether signboards of ATM Centers which are not sky signs are covered under the provisions of Section 328 of the Act—(No)—Notices issued shall be deemed to have been issued u/s 328A of the Corporation Act—Corporation shall decide question of advertisement u/s 328A of the Act.
       Held : 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 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. (Paras 18 & 19)
       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. (Para 20)
       (ii) Words and Phrases—Word ‘Advertisement’—Meaning—‘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.
       Held : 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. (Para 16)
       (iii) Interpretation of Statutes—Meaning of word or phrase—Ordinarily the words used in the statute are to be understood in their natural ordinary and popular sense. (Para 17)

Judgment

P.P. Naolekar, J.—Learned granted.

2. 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:

3. 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 Sing/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 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.

4. 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). T

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2005 Supreme(SC) 980

Important pointAdvertisement within the meaning of Section 328A of the Bombay Municipal 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 the people to its business.

Cases Referred (3)

Important point
Advertisement within the meaning of Section 328A of the Bombay Municipal 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 the people to its business.