M/S.H.T.MEDIA LTD. v. MUNICIPAL CORPORATION OF DELHI

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4. Prohibition of erection, exhibition, fixation, retention or display of advertisement in without written permission of the Commissioner – No person shall erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post, kiosk/Bill Board (to be displayed on electric pole) or structure or upon or in any vehicle, any advertisement or display any advertisement to public view in any manner whatsoever in any place within the jurisdiction of the Corporation without the prior written permission of the Commissioner.”

9. As would be manifest from above, under Section 42 of the DMC Act, it is the obligatory function of the Corporation to make adequate provisions to undertake various measures to regulate the civic life of the citizens of Delhi and one amongst them is naming and numbering of streets and premises. To simply name any premises under no circumstances can constitute an advertisement to attract tax as envisaged under Section 142 of the DMC Act unless such display of name of premises contravenes any of the specifications laid down by the MCD under its bye laws. The fate of the entire case of the petitioner rests on the question that: “Whether the display of the trade name of the petitioner (Hindustan Times) can be construed as an “advertisement” attracting tax in terms of Section 142 of DMC Act or call for a written permission of the Commissioner of the MCD as envisaged under Section 143 of the DMC Act prior to erection, exhibition or fixation of the same on the outer gates of the group housing societies and multistoried buildings?”

10. The term ‘advertisement’ has been defined in various dictionaries as under:- Black’s Law Dictionary, 8th Edn. 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 County) Information communicated to the public, or to an individual concerned, as by handbills, newspaper, television, billboards, radio. (First Nat. Corpn v. Perrine) New Encyclopaedia Britanica, Vol. 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 towards 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 – any public notice, as a printed display in a newspaper, short film on television, announcement on radio, etc., designed to sell goods, publicise an event, etc.” Also, in explanation (2) of Section 142, the word ‘advertisement’ in relation to tax has been defined to mean any word, letter, model, sign, placard, notice, device or representation, whether illuminated or not, in the nature of and employed wholly or in part for the purposes of advertisement, announcement or direction.

11. „The Hindustan Times‟ is a popular trade name of the petitioner. The newspaper Hindustan Times with the name „The Hindustan Times‟ has a very wide circulation in the capital of the country and various parts of India and to a common and unwary person the trade name Hindustan Times is well identified only with one of the national dailies. Therefore, display of name ‘Hindustan Times’ at any place would connect and co-relate the said name with its newspaper alone and not with any other product, goods or services. It is not the case of the petitioner that it is discharging charitable services to various group housing societies/multistoried buildings so as to facilitate them to display the name of their societies/multistoried buildings at their outer gates. The petitioner has also not placed on record copy of any such request made by these societies where the petitioner has displayed their names. This Court also cannot turn a blind eye to the fact that the petitioner is a commercial organization and the circulation of its newspaper ‘Hindustan Times‟ and the advertisement of its trade name is one of the methods to increase its circulation amongst the public. As per the list filed by the petitioner itself, at 114 places, the petitioner has put up its advertisement through the display of boards outside these group housing societies and multistoried buildings. Had the petitioner been involved in any philanthropic pursuit, then certainly it would not have been interested in display of its own trade name along with display of boards indicating names of such group housing societies/multistoried buildings.

12. Counsel for the petitioner placed reliance on various judgments of the Apex Court and this Court in support of the contention that the said act on the part of the petitioner cannot be termed as an advertisement. In M/s. Brooke Bond India Pvt. Ltd. Vs. NDMC (supra) where the Court was confronted with an issue whether the name (Brooke Bond) painted on the right and rear panel of a van would amount to advertisement attracting tax under the NDMC Act or not, the Court held as under:- “In my opinion the advertisement, in order to attract levy of the advertisement tax, must relate to the business and commercial activity and must propagate ideas with regard to the goods or the services rendered by the party and mere display of the name of the party, without reference to the goods or services rendered will, ordinarily, not constitute an advertisement unless the displayed name happens to be the trade mark or trade name under which the goods are sold. In certain circumstances, if the display of the name is so closely associated and prominently displayed with the goods that the connection between the two is obvious, it must also constitute advertisement. However, in the instant case, it has not been suggested that Brooke Bond is the trade mark or trade name of the petitioners and there are no words in the impugned advertisement inviting attention of the public to the goods manufactured or sold by them. To a person who knows that the petitioner-company manufactures tea, the name “Brooke Bond” does not add to the information and advertisement as a means of communication is redundant, while if a person does not know this fact already, the display of the mere name of the company does not convey any meaning and it cannot be said to be directed to create awareness in potential customers. Mr.Daphtary has suggested that the painting of the name of the petitioners in the instant case is similar to the one found on wagons and bogies of the Indian Railways or buses of the Airlines and Transport Undertakings. The counsel for the respondents contested the suggestion. There is force in the submission of the counsel for the respondents that prominent display of the name of the petitioners in large letters on three sides of a motor van is certainly not necessary or intended to innocently intimate merely the name of the owners to whom the vehicle belongs. However, in any view of the matter, this display of the name on three sides of the van falls short of constituting an advertisement, since it does not have any relation to giving information or propagating any ideas with regard to the goods manufactured or sold by the petitioners and it does not help to mould the image of the product of the petitioners or to create any awareness in potential customers, nor does it induce sales with any effectiveness. As a result, I hold that the mere display of the name of the petitioners (unless it be a trade mark or trade name) does not amount to advertisement within the meaning of the bye-law under consideration and it does not attract the levy of advertisement tax.” The above mentioned judgment is distinguishable on facts with the present case as there the Court was dealing with the writ petition filed by the Brooke Bond (India) Pvt. Ltd. challenging the recovery of advertisement tax levied by the NDMC on the advertisement displayed on the vans and hand driven carts of the said company. In the said case the name of the company i.e. Brooke Bond was painted on the vans and on the hand driven carts and construing them as advertisement the NDMC levied advertisement tax thereon. The Court in the said case was concerned with bye-law No.7, which permits the traders to display the name boards on their own premises provided the same is purely a name board and it does not contain any item of advertisement. The petitioner in the said case also placed reliance on one of the resolutions passed by the committee which permits display of names on the panels of vehicles unless the same is done in a manner which tantamount to advertisement. It is in the background of these facts that the Court took a view that mere display of the name of the petitioner company (unless it be a trademark or trade name) does not amount to advertisement within the meaning of the bye-law under consideration and the same will not attract the levy of advertisement tax. The said judgment is thus clearly distinguishable and is not applicable to the facts of the present case as in the present case the petitioner has advertised its trade name and that too not on its own premises but at different premises of various group housing societies and multi storied complexes.

13. The Apex Court in the case of ICICI Bank and Others (supra) was also confronted with a somewhat similar issue where a challenge was made by the ICICI Bank to the action by the Municipal Corporation of Greater Bombay holding the sign boards fixed by the ICICI Bank above their ATM Centres amounting to advertisement. The Court there was dealing with similar provisions of Sections 328 and 328A of the Bombay Corporation Act, 1988 and after examining the issue in depth, held as under:-

14. A Division Bench of this Court in Lahori Mal and Another (supra), on which reliance was placed by the petitioner, also took a view that mere sign board displayed by a trader outside the shop in the nature of name board or name plate by the residents would not be regarded as advertisement. Relevant paragraph of the same is reproduced as under:-

This judgment is also not applicable to the facts of the present case as there the Court was dealing with the issue as to whether the NDMC could impose a ban on the display of hoardings, display of sign boards and other advertisements within its jurisdiction and whether any prior permission is necessary before the said advertisements are put up.

15. The Apex Court in yet another case in NDMC vs. Allied Motors Pvt. Ltd. (supra) dealt with a similar issue where the question whether the boards displayed by the petitioner are not advertisement boards but merely sign boards of the items in which the petitioner deals and answered as under:- “7. The case of the respondents being that they use neonlights to display the names of commodities they sell would fall since those advertisements cannot be called name-boards or even as identifying the name of any object in which the trader was doing his business that being barely descriptive of the commodity. It would be more apt to say that the name-board relates to the object and not to the subject. This marked distinction takes out the case of the respondents from seeking exemption under Clause (a) of Bye-law 7. The Division Bench of the High Court apparently was misled to discover separate meaning of the word 'name' and then of the word 'board whereafter to put then into a combination, assigning a meaning to 'name-board' as if covering trade description of commodities offered for sale and granted relief to the respondents on that basis. This in our view was a wrong approach leading the Judgment to be vulnerable.

8. The respondents did not claim any exemption under Clause (e) of Bye-law 7. The said provision has been adverted to earlier in passing. It is to be seen that advertisements as relating to the trade profession or business carried on within the land or building upon or over which such advertisement is put are to be exempted. Equally exemption is claimable for such advertisements relating to any sale or letting of such land or building or any effects therein. Like-wise advertisements relating to any entertainment or meeting to be held on or upon or in the same is to be exempted; provided that exemption is valid to the owner or agent for one board. Thus advertisement which has nexus with the trade profession or business would qualify for exemption if relating to the named activities. The respondents succeeded before the Letters Patent Bench of the High Court only on the basis of Clasue (a) of Bye-law 7. The bench when called upon by the present appellant to give favourable interpretation to Clasue (a) of Bye-laws 7 on the basis of Clasue (e) observed that it appears to them that Clasue (e) would apply to those advertisements which relate (only) to the trade, profession or business or something more than mere name boards. The respondents herein (the appellants there-at) did not build their case on the evil of Clasue (e) of Bye-law 7 and any attempt herein, in the absence of the views of the High Court, would negate proper handling. We would therefore leave the matter at that. This course is all the more necessary when there is an amendment in Clasue (a) of Bye-law 7 effective from 19-2-1.971 whereunder a name-boards remains as such displayable by the traders on their own premises provided they do not add any item of advertisement thereto other than the name of the trade that may be carried out at the premises. But, as said before, we are concerned with the period prior to that requiring us not to give a positive opinion.” In the above mentioned case the Court was dealing with clause (a) of Bye-law (7) of the NDMC which before amendment from 19.2.1971 permitted display of name boards by the traders on their own premises provided they do not contain any item of advertisement. Facts of this case are also clearly distinguishable as in the present case this Court is not dealing with such an issue where the display of trade name of the petitioner in its own premises is in question.

16. Hence, the aforesaid judgments cited by the learned Senior Advocate for the petitioner would not help the case of the petitioner.

17. Coming to the facts of the case at hand, the petitioner in the present case has carried out the advertisement of its trade name (Hindustan Times) at 114 sites outside various group housing societies and Multi-storied complexes. Therefore, the case of the petitioner does not fall under proviso (d) Section 142 of the DMC Act as proviso (d) of Section 142 deals with those cases where the display relates to the name of the land or building upon or over which the advertisement is exhibited, or to the name of the owner or occupier of such land or building. The petitioner certainly neither is the owner /occupier of such buildings nor is „The Hindustan Times‟ the name of any land or building. A trade name is a means of identifying business or its products or services and is a name under which any company runs its business. The newspaper in the name of Hindustan Times is a household name so far the newspaper industry is concerned and, therefore, to say that the display of trade name by the petitioner at various places is not an advertisement to promote its commercial product or services would be an argument totally unfounded. By such a display of the trade name, the only objective of the petitioner is to promote and publicize its newspaper ‘Hindustan Times’. Merely because it has not mentioned the name of its product i.e. newspaper along with ‘Hindustan Times’, that by itself would not lead to infer that the petitioner has some social or philanthropic motive in the display of such boards. The question then arises is that if the petitioner had no such objective to achieve then where was the need to display its own name outside such group housing societies and multi-storied complexes along with the respective names of these societies.

18. In today’s time of cut throat competition and increasing pressure of achieving sales targets, advertisement has gained unsurmountable importance. It is basically a method to communicate with the customers and lure them to buy a particular product. The newspaper ‘Hindustan Times’ is already a well circulated trade name, but putting the trade name on various display boards of housing societies and multistoried buildings, it is a kind of a reminder advertisement to keep the trade name always fresh in the mind of the target consumers. Thus, advertising has become indispensable to thrive and more so to survive in the market where there are so many players and is a means of attaining brand loyalty of the product and like in the present case, display of trade name at common places is to engrain in the psyche of the consumer the reverberations of the product.

19. In the light of the above discussion, this Court is of the considered view that the display of its trade name by the petitioner outside various Group Housing Societies/Multi Storied buildings along with the said name of the societies is only with a view to promote and publicize its product i.e. the newspaper with which alone the said trade name is identified amongst the public at large and the same has been done with the sole objective to increase its circulation and such display of boards amounts to ‘advertisement’ and is in contravention of Section 143 of the DMC Act and bye-laws framed there under.

20. In the event of the foregoing, there is no merit in the present petition. The same is hereby dismissed. December 24, 2010 KAILASH GAMBHIR, J