Judgment:
ORDER
R.J. Kochar, J.
1. 'ASHOK RESTAURANT & BEER BAR' is the illuminated neon sign board displayed by the petitioners on the front of the hotel premises, According to the respondents this name board displayed by the petitioners attracts Sections 328 and 328A of the Bombay Municipal Corporation Act, 1888. According to the respondents the petitioners have violated these provisions as the name board was displayed without prior permission of the Competent Authority under the said Act. According to the. respondents, the said name board amounted to an advertisement, announcement or direction as contemplated by the said Act. The petitioners, however, contend that it was merely a neon sign or illuminated name board of the petitioners, displayed on the front of the premises and that it amounted to neither advertisement nor announcement nor a direction as contemplated by the aforesaid provisions of the Act. The petitioners contend that it is only a name board indicating the place and the service or the purpose of the place or the business. Sheer display of the illuminated name board does not amount to an advertisement or announcement or a direction. According to the petitioners, therefore, no permission from the municipal authorities was required for putting up an illuminated name board of the petitioners on the front of the hotel or restaurant premises. Shri Murthi has pointed out that from the name board, the place is identified as a hotel or a restaurant where eatables are available and also beer. From the name board no public is invited to visit the place. It only indicates that whoever desirous of having eatables or a glass of beer such items were available inside the hotel.
2. On page 25 of the paper book, as Exh. A. a photograph of the sign board is annexed for better appreciation. Between the words Restaurant and Beer Bar, a design of two folded hands also appears indicating that whoever enters the restaurant is welcome. It appears that this controversy in respect of display of illuminated sign boards has been going on between The Association of India Hotel and Restaurant and the Bombay Municipal Corporation. By a notice dated 5.6.2000, the petitioners were threatened of a legal action, if the petitioners did not pay licence fees for the display of the name board. The threat from the ward office staff continued. Fed up with the said threats the petitioner approached this Court by filing the Writ Petition No. 1312 of 2000 challenging the letter-cum-order issued by the respondents. The said writ petition was disposed of by a direction that the petitioner should be heard by Appropriate Authority and a proper decision should be taken. It further appears that the petitioners thereafter submitted their representation on 28.6.2000. The Additional Municipal Commissioner (E.S.) passed an order on 6th October, 2000 rejecting the contention of the petitioners holding that the name board of the petitioners was an advertisement and hence licence was required for such display of the name board. The petitioners have again approached this Court under Article 226 of the Constitution of India to challenge the said order of the respondents.
3. At the outset I must mention that the impugned notice dated 5.6.2000 issued by the Respondents to the Petitioner was vague. I need to reproduce the first paragraph of the said notice, which is as under :
'It is noticed that you have displayed sky sign/glow sign/Neon sign/ illuminated boards on your premises without the permission of the Municipal Corporation. It is to inform you that under Sees. 328 and 328A of the M.M.C. Act beforedisplaying these boards you should take permission and pay of the necessary charges.'
The author of the notice was not at all sure whether the displayed matter was sky-sign or glow sign or Neon sign and/or illuminated board. According to me, when an action attracts penalty the notice must be absolutely clear. According to the notice, the displayed board was without the permission of the Municipal Corporation, and therefore, it had violated Sections 328 and 328A of the M.M.C. Act. The Petitioners were directed to make prescribed payment failing which a threat of action was given. There is however no dispute that the displayed board was on the premises of the petitioner. As I have already mentioned earlier that the Petitioners successfully challenged the validity of the said notice and the consequent threatened action before this Court under Article 226 of the Constitution of India. By an order dated 7.8.2000 my learned brother Dr. D. Y. Chandrachud, J. directed the Respondents to hear the petitioner before passing any order. Accordingly, the Petitioner was heard by the Competent Authority which has passed the impugned order dismissing the representation of the Petitioner and directing the Licence Department to recover the necessary charges on account of the illuminated name board as per the provisions under Section 328A of the M.M.C. Act. Fortunately the Competent Authority has specified the fact of displayed board and it has called it as 'the said illuminated name board placed outside the Restaurant'. The Competent Authority however did not accept the contentions of the petitioner that Section 328 of the Act did not cover or Include the display of the name boards on the business premises. It also did not accept the contention of the petitioner that the display of such name boards on the premises of the Restaurant did not amount to an advertisement. The Ld. Competent Authority appears to have interpreted two judgments of the two learned Single Judges of this High Court in two criminal writ petitions that 'advertising does turn the attention of the public to a commodity or service and in the broad sense it might be said that anything that turns attentions to an article or service might be called advertising.' The Competent Authority applied the said observations to the facts of the present case and held that Illuminated name board draws the attention of the public and hence amounts to advertising in its broad sense.
4. The petitioner has challenged the aforesaid order of the Competent Authority, the Additional Municipal Commissioner (Eastern Suburbs). At the outset I must mention that I do not agree with the view that the display of an illuminated name board on the premises of the business place amounts to an advertisement. Putting up of the name board by illuminating the same to enable the public to read the same during night hours by no stretch of imagination can be considered in the sense of advertising or advertisement. During the day time the illumination is put off while at the night time it is put on. If the same board during the day time 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. By sheer display of such a name board, even illuminated at night time, cannot be said that the concerned person was giving an advertising of his product or services. The purpose of the display of name boards is to let the public know what was the place and where it is situated and what activities were going on inside the premises and what services were available therein. Secondly, it ts also for the convenience and to facilitate all those who are in search of the particular business place. As soon as such person who is in search of. say the present petitioner, would read the board and stop his search, otherwise he would just go on asking the people where the required place is. The name boards are displayed for the people to know and to locate the place if they required such a place. Those who are not concerned and those who do not want such a place, activity or service would just read and ignore and walk further. According to me. mere reading of the name board does not amount to advertising to attract the provisions of Sections 328 and 328A of the Act. I therefore, hold that the petitioner's illuminated name board does not amount to advertising and I hold as a matter of law that no illuminated name board displayed on the place of the businesses amounts to an advertisement to attract the aforesaid provisions of the law.
5. I am fully fortified in the view which 1 have taken above by a Judgment of a learned Single Judge of this Court (Lentin.J,) in the case of Bharat Petroleum Corporation Ltd. v. Municipal Corporation of Greater Bombaiy. The facts are more or less similar. In that case the petitioner B.P.C.L. had erected a pole on the petrol pump displaying the words 'Burmah Shell' and the said metallic board was also illuminated at night by a small light at the top. The projection of the metallic board in that case was on pavement displaying the symbol of shell which is the registered trademark of the Burmah Shell Oil Storage and Distributing Co. Ltd. Such display attracted the Corporation to apply the provisions of Sections 328 and 328A of the Act. It was the case of the Company that such display of the board was not an advertisement, announcement or direction within the meaning of Section 328 of the Act. The respondents did not accept the said contention and initiated criminal proceedings against the company before the Metropolitan Magistrate. The company challenged the action of the Corporation by filing the aforesaid petition for appropriate writ directing the Municipal Corporation to withdraw or cancel those complaints and not to take any action against the company in respect of the board erected by the said company. The learned Single Judge in a very well written and reasoned judgment accepted the contentions of the petitioner company that the display of its name board did not amount to advertisement, announcement or direction. The learned Judge had dissected all the three terms in his own in imitable manner. The learned Judge observed that by display of the name board or the sign board there was no invitation to any member of a public to purchase the petitioner's products and that it was only to give an indication to the general public that it was the place where the member of public would find petrol. The learned Judge has held that the board was merely an indication of location of the petitioner's petrol pump and not an invitation to the motorists or the general public to purchase the petitioner's products. The learned Judge has also stressed a point that the board was on the premises of the very petrol pump and not away from the petrol station, which perhaps would have given rise to a contention that it was an advertisement. We have a stronger case and far better facts. In the case before Lentin, J, the sign board displayed the name of the product erected on aheight pole on the pavement of the petrol station. Even then it was held by the learned Judge that it did not amount to advertisement, announcement or direction. The board only indicated the location and situation of the petitioner's premises. In our case the petitioner has displayed a sign board on the front of his premises. There is no mention of any product or service. The name board is hanged on the wall of the building just outside the entrance. It is not erected on any pole or bar from the business place. The board merely reads the name of the business and except displaying the name as Restaurant and Beer Bar there is no mention of what product or what Items or what services were available Inside the Restaurant. 1 am in respectful agreement with the Judgment of the learned Single Judge and the same is binding on me. This Judgment was carried by the Corporation in Appeal before the Division Bench of this Court (P.B. Sawant and V. S. Kotwal, JJ.]. By its Judgment dated 30,8.1985 in Appeal No. 167 of 1980 the Division Bench considered in great and minute detail the provisions of the Sections 328 and 328A of the Act and upheld the view taken by the learned Single Judge in the Judgment which was impugned before the Division Bench. Even the Division Bench analysed the whole concept of advertisement, announcement and direction and observed that 'even if the name board is held to be an advertisement or a direction unless it also amounts to an advertisement it will not attract the provisions of the said Section.' The Division Bench further observed that whether a particular sign or sign board will amount to an advertisement will depend upon several factors including the 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. The learned Judges further observed 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.
6. Considering all these factors the display of the petitioners' name board does not amount to an advertisement. As has been further observed by the Division Bench that 'in a sense every sign or sign board invites people to visit the place, but that does not make it an advertisement. To amount to an advertisement, the sign-board should have been placed solely for its commercial exploitation which Js the purpose of an advertisement.' In the present case I do not see the purpose of the petitioner as commercial exploitation. The board only indicates to the consumer the place where the product or service is available and that did not amount to an advertisement. The display of the board naturally and incidentally lead to the sale of the product and service in the Restaurant but that by itself could not make it an advertisement. The Division Bench has also discussed the object of the provisions of Sections 328 and 328A of the Act. It is observed that ' the provisions are designed to prohibit the display, without permission, if sign boards which are primarily meant for commercial exploitation. They do not envisage permission for every sign or sign board when the sign or sign board incidentally leads to the sale of the product or service. Paragraph 10 of the Judgment needs to be reproduced:
'10. Examined from these angles, we arc more than satisfied that the sign board in question is not an advertisement. It only indicates the location of the petrol pump. It has been placed there primary ft (he guidance and benefit of the consumers. By the very nature of the location of Hie petrol pump the sign has to be placed in the manner It has been done for (he benefit of the consumers. Neither the members of the public nor the consumers of the petrol look upon it as an advertisement either for petrol in general or for petrol of the petitioner, nor does it in fact serve as an advertisement for either. The sign board will therefore not come within the mischief of the prohibitions contained in Sections 328(1) and /or 328A of the Act.'
7. Shri Bhor the learned Advocate for the Corporation prayed for an adjournment on the ground that his Counsel was not available. Since I have been making it very clear that matter will not be adjourned on the ground of non-availability of Counsel, I did not accede to the request of the learned Advocate. I however, made it clear to him that as and when his Counsel would come he would be permitted to take over the matter during the course of the hearing. This was in the first sessions. 1 heard Shri Murti, the learned Advocate for the petitioner, who continued to make his submission some time even in the second session. Even at that time unfortunately for Shri Bhor, his Counsel did not come. I must mention that Shri Bhor did justice to the matter and argued well. He pointed out the two judgments of the learned Single Judges of this Court in criminal matters. Shri Bhor based his arguments on the aforesaid judgments and submitted that the illuminated board of the petitioner amounted to an advertisement as it was an open Invitation to the public to come to the Restaurant. According to Shri Bhor, it amounted to an advertisement. He also pointed out that there was a Municipal Circular wherein board could be Illuminated under a bulb of 25 Watts and if the illumination exceeded such power it attracted Sections 328 and 328A of the Act. I do not agree with the submission of Shri Bhor that the illumination exceeding 25 watts bulb would convert itself into an advertisement. No authority or no law was pointed on the aforesaid proposition. The illumination of a name board has its sole purpose that the people should be able to read the name board even from a reasonable distance. 1 may also mention here that the attention of both the learned Single Judges deciding the criminal masters was not drawn to the judgment of the learned Single Judge (Lentin, J.) which was much earlier in the point of time and which was finally confirmed by a Division Bench of this Court In appeal by a very well written and reasoned Judgment. I, therefore, do not find any substance and merits of the contentions of Shri Bhor.
8. In the aforesaid circumstances the petition succeeds, Rule is made absolute in terms of prayer clauses (a), (b) and (c). No order as to costs.
9. All parties to act on an ordinary copy of this order duly authenticated by the Associate of this Court.