Meaning of the expression "Sky sign."

Veeraswami, J.

1. The respondent who is the Revenue Officer, Madras Corporation, by a notice of his, dated 22nd July, 1959, called upon the petitioner to remove from his shop an advertisement within a specified time and to pay a tax of Rs. 13 for having exhibited the advertisement upto 30th June, 1959. The respondent in the notice, averred that the petitioner had unauthorisedly erected decorative advertisement boards and banners in front of his shop which was not exclusively intended for sale of cigarettes and thereby committed an offence under Section 129-A of the Madras City Municipal Act. The petitioner was threatened with penal action in default of compliance with the requirements of the notice. This petition, under Article 226 of the Constitution, is for quashing the notice or in the alternative for a direction in the nature of a writ of mandamus restraining the respondent from enforcing the terms of the notice. Two photographs of the front appearance of the shop with the particular advertisement board are produced, one by the petitioner and the other by the respondent. The one produced by the petitioner shows the advertisement-board attached to the parapet wall immediately above the sunshade work. In this photograph the sky is not visible. The other photograph produced by the Corporation which is a bigger one, shows the position of the advertisement in clearer relief. There it is seen that the board is attached to the wall below the parapet wall and the R.C. roof level. The sky is visible above the parapet wall.

2. According to the petitioner the Third Proviso to Section 129-A of the City Municipal Act covers the advertisement and excepts it from the purview of the first paragraph of that provision. Clause (b) of the Third Proviso reads:

Provided further that no such tax shall be levied on any advertisement which is not a sky-sign and which (a)....(b) relates to the trade or business carried on within the land or building upon or over 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.

Explanation 2 says:

The expression "sky-sign" shall, in this section, mean any advertisement, supported or attached to any post, pole, standard, framework or other support wholly or in part upon or over any land, building, wall or structure which, or any part of which sky-sign, shall be visible against the sky from some point in any public place and includes all and every part of any such post, pole, standard, frame work 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 upon or over any land, building, or structure or upon or over any public place but shall not include....

3. The contention of the petitioner with reference to these provisions is, that the Proviso is not confined to an exclusive trade or exclusive business carried on within the building in cigarettes or in any particular goods. This construction appears to be correct. The Proviso only states that no tax shall be levied if the advertisement is not a sky-sign and relates to the trade or business carried on within the building upon or over which such advertisement is exhibited. Trade or business are obviously words of wide import. It cannot be said that only if sales are exclusively carried on in particular goods in a building, it can be described as trade or business. Selling of cigarettes among other goods is as much carrying on business in cigarettes. As I read the Proviso, there is nothing in it to suggest that trade or business contemplated by it should be exclusive trade or business in particular goods and no other carried on within the building. It is, however, urged for the respondent that the article "the" preceding the words "trade or business" is indicative of the exclusive character of the trade or business. I a