Raju, J. - (1.) The Municipal Corporation of Greater Bombay who lost before the learned single Judge and the Division Bench of the High Court, is the appellant herein against the judgment dated 30-8-1985 in Appeal No. 167 of 1980 whereunder the Division Bench, while affirming the judgment of the learned single Judge, restrained the appellant-Corporation from taking any action against the respondent under S. 328 or 328-A of the Mumbai Municipal Corporation Act, 1888 as amended (hereinafter referred to as "the Act") in regard to their signboards of petroleum pumps. In order to appreciate the legal issues raised pertaining to the scope and purport of the statutory provisions noticed supra, it becomes necessary not only to advert to the nature of the activities of the respondent which are the subject-matter in issue but also the conclusions arrived at in the judgment under challenge as well as the reasons therefor.
(2.) The respondents are said to be successor-in-title of the company known as Burmah-Shell Oil Storage and Distributing Company Limited carrying on business inter alia as a distributor of petroleum products in various parts of the country. We are concerned in this proceeding with the distribution of petroleum products from various retail outlets of the respondents, known as petrol pumps in Bombay. Within the premises of those petrol pumps, it has erected a pole with a metallic board projecting on the pavement, which board displayed the symbol of a shell, said to be the registered trade mark of the respondent's predecessor. The height of the pole is said to be 18 ft. and the diameter of the metallic board (on which appears the shell symbol) is said to be 6 ft. Across the symbol of the shell appear the words 'Burmah-Shell' in letters of 3" height. All the poles and the boards erected at the respondent's-petrol pump are said to be identical and most of them are illuminated at night by a small light at the top. Though, prior to 1975 the respondent applied for requisite permission under the Act for the erection of such signboards at its various petrol pumps, on the basis of subsequent advise said to have been obtained by them that those boards were not an advertisement requiring permission under the provision of the Act, noticed above, the respondent addressed letters dated 30-1-1975 and 19-3-1975 intimating their stand to that effect to the appellant-Corporation but the authorities of the Corporation by their letter dated 29-9-1975 insisted that the permission was necessary for displaying such boards as they also constituted an announcement or direction. Since in spite of the same, the respondent stuck to its stand and did not obtain permission, the appellant-Corporation launched criminal proceedings for committing offence under S. 471 read with the provisions noticed above. The respondent at this stage filed Miscellaneous Petition No. 1380 of 1976 seeking for appropriate writ directing the Corporation to withdraw or cancel those complaints and to forebear the Corporation from taking any action against the respondent under S. 328 or 328-A of the Act in respect of the boards erected by them as referred to above.
(3.) On a consideration of the submissions of the respective parties, the learned single Judge of the Bombay High Court by his judgment dated 15-2-1980 sustained the claim of the respondent by accepting the stand taken that the boards erected by the respondent do not amount to an advertisement and what the respondent was doing by such erection of boards was merely to give an indication or guidance to the motorists and the general public regarding the situation or location of their petrol pumps which are open all the 24 hours around. The learned Judge was of the view that since the motorist knew whose products he wanted to buy and all that is informed by such installation is of the location of the petrol pump, the signboards in question cannot be said to be an advertisement or in the nature of an advertisement and its function and purpose is to show the location of the respondent's petrol station where one may or may not enter at his own choice. Repelling the stand taken for the appellant-Corporation that the projection of the boards over the pavement and their position, angle and height of the boards and the object underlying the same attracted S. 328, it was held that they served only as an information to a motorist or a member of the public even from some distance as to the location of the petrol station more by way of a facility for the motorist and the public without any invitation for patronage of the respondent's products. An earlier decision in the case of M/s. Glaxo Laboratories (India) Limited came to be distinguished on the facts and held to be not applicable to the case on hand. While construing the word 'announcement' it was held that a mere imparting of an information alone will not constitute an 'announcement' and by the mere indication and information provided in the case on hand to those interested as to the location of the petrol pump, the respondent made no announcement within the meaning of the said word used in the provision. Adverting to the word 'direction,' it was observed that anything, which does not convey an imperative and mandatory message, cannot be construed to mean a 'direction' and that what was conveyed by the signboard in the case on hand was a message, permissive or optional for the motorist or a member of the public to avail of or not the services rendered at the petrol pump. The view thus expressed was that providing an information does not constitute giving a direction to go to the petrol stations by way of enforcing any obedience. It was, therefore, held to be not a 'direction' and consequently the claim of the respondent came to be upheld by the learned single Judge.;