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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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