V. Vasudeva Bhat vs The Revenue Officer, Corporation of Madras

Veeraswami, J.—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 u/s 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.

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....

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 am unable to spell from the use of the word ""the"" alone any such limitation. In my

opinion, the selling of cigarettes, among other things, in the building falls within the Proviso.

Sri T. Chengalvarayan, for the Corporation, also strongly urges that the advertisement here in question is a sky-sign and as such it is outside the

Third Proviso. On the view I take of the scope of the words ""the trade or business"" the second contention does not fall to be decided. Further, no

such point, in fact, has been taken in the counter-affidavit. It is not even mentioned in the notice served upon the petitioner. Nevertheless, the point

may be briefly considered. The contention for the Corporation is that although the advertisement is fixed to the wall and what is behind it is not the

sky but the wall, the advertisement will, nevertheless be a sky-sign because without elevating the vision, it will be possible to see the sign board and

the sky at the same time. But this, it appears to me, overlooks the words in Explanation 2 ""shall be visible against the sky"". The word ""against"" to

my mind, clearly points to the requirement that the advertisement should be visible against the sky in the sense that the sky should be at the back of

the advertisement and not merely above it. The learned Advocate-General suggested that Explanation 2 makes it clear that an advertisement which

is directly fixed upon the wall, will not be within its scope and the words ""or other support"" indicate that between the wall and the advertisement

there should be some other support. Whether this interpretation is correct or not, I am clear that an advertisement fixed on the wall and not visible

against the sky in the sense that what is behind is the wall and not the sky, is not within Explanation 2. Such an advertisement is not a sky-sign

within the meaning of Section 129-A.

The meaning of ""sky-sign"" is given in Funk and Wagnalls, New Standard Dictionary thus:

a sign or an advertisement so placed as to be backed by the sky.

The word ""against"" in Explanation 2 precisely conveys this meaning.

I hold that the advertisement in question falls within the Third Proviso to Section 129-A. There will be a rule restraining the respondent from

giving effect to the impugned notice. The petition is allowed and the rule nisi is made absolute. No costs.