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Brooke Bond (India) Private Ltd. Vs. New Delhi Municipal Committee and ors. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 559D of 1964
Judge
Reported in9(1973)DLT332; 1973RLR338
ActsConstitution of India - Article 19
AppellantBrooke Bond (India) Private Ltd.
RespondentNew Delhi Municipal Committee and ors.
Advocates: C.K. Daphtary,; O.C. Mathur,; J.N. Aggarwal and;
Cases ReferredIn John W. Rast vs. Van Demon
Excerpt:
.....services rendered does not constitute advertisement - displayed name happens to be trade mark or trade name under which goods sold - display of names on three sides of van falls far short of constituting advertisement - held, levy of advertisement tax cannot in any event extend to display of names on hand-driven carts - respondents directed not to enforce demands of advertisement tax. - - as is apperent from paragraph 6 of the counter-affidavit of the municipal committee dated 8th november, 1971, the name 'brooke bond' is painted on the left hand panel as well as right hand panel and on the rear panel of each van in the size of 3 feet x 1-1/2 feet each. on the hand-driven carts, the word 'brooke bond' is painted on the right as well as left panel of the carts in the size of 2 feet..........and not mere display of the name of the company unless the same happens to be the trade mark or trade name. in ham- dard dawakhana (wakf) lal kuan delhi and another vs . union of india and others : 1960crilj671 , the court was faced with the problem of determining whether a tax on advertisement infringed the article of the constitution relating to freedom of speech. the court on page 687 observed that advertisement is no doubt form of speech, but its true character is reflected by the object for the promotion of which it is employed: it assumes the attributes and element of activity under article 19 which it seeks to aid by bringing it to the notice of the public; when it takes the form of a commercial advertisement which has an element of trade or commerce, it no longer falls within.....
Judgment:

B.C. Misra, J.

(1) The Brooke Bond (India) Private Limited petitioners have filed this writ petition against the demand raised by the New Delhi Municipal Committee for recovery of advertisement tax on the alleged advertisements displayed on the vans and hand-driven carts of the petitioners. As is apperent from paragraph 6 of the counter-affidavit of the Municipal Committee dated 8th November, 1971, the name 'Brooke Bond' is painted on the left hand panel as well as right hand panel and on the rear panel of each van in the size of 3 feet x 1-1/2 feet each. On the hand-driven carts, the word 'Brooke Bond' is painted on the right as well as left panel of the carts in the size of 2 feet x 4 inches each. It is not disputed that in the aforesaid alleged advertisement, no other words, device or representation appear and there is no reference to tea, coffee or any other goods manufactured or supplied by the petitioners and only the name 'Brooke Bond' is painted in large sizes.

(2) The said painting of the name has been considered as advertisement by the New Delhi Municipal Committee and subjected to a levy of advertisement tax imposed by the Municipal Committee by resolution No. 5 dated 7th February, 1958. which was approved by the Chief Commissioner with effect from 23rd January, 1958 and the tax was levied with effect from 1st May, 1958. The constitutional validity of this tax was challenged in another case and has been upheld by a Division Bench of this Court in New Delhi Municipal Committee vs. Ishwar Dass Sahni and Brothers, R.S.A. 254-D of 1963 decided on 28th March, 1972. In supporting the present writ petition, Mr. Daphtary besides challenging the validity of the said tax, contended that the impugned advertisement does not constitute advertisement within the bye-law and is not subject to the tax. It has also been contended that in case the bye-law be found to include the display of the name of the petitioners on the vans, the same is unconstitutional.

(3) The writ petition has been contested on behalf of the Municipal Committee. The material facts of the case are not denied and it is admitted that the name of the petitioners has been painted in letters on the vans and carts as detailed above and the same constituted advertisement and that the levy is constitutional and valid.

(4) In the rejoinder, the petitioners have relied upon another resolution of the Municipal Committee dated 27th May, 1966 which has been passed subsequent to the creation of the demand against the petitioners and which is to the effect that mere display of names on the panels of vehicles shall not be taken to be advertisement unless it is done in a manner which tantamounts to advertisement.

(5) As stated above, the constitutional validity of the advertisement- tax has been upheld by this Court in the decision of the Division Bench dated 28th March, 1972 and I am bound by the same. The first contention of the learned counsel for the petitioners is, thereforee, rejected.

(6) To appreciate the, second contention of the Counsel reference may be made to clause (a) and Explanationn to clause (h) of the relevant bye-law No- 7 which read as follows :-

'(A)Name boards displayed by the traders on their own premises provided the board is purely a name board and it does not contain any item of advertisement.'

The Explanationn to clause (h) :-

'The word 'advertisement' means 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 purpose of advertisement announcement or direction.'

(7) The resolution of the Committee passed subsequently on 27th May, 1966 is to the following effect :-

'RESOLVEDthat mere display of names (unless it is done in a manner which tantamounts to advertisement) on the panels of vehicles shall not be taken as advertisement and the same will not be liable to advertisement-tax.'

(8) The definition clause again uses 'advertisement' as a predicate and so it does not help to solve the difficulty and we have to find out what the intention behind the use of advertisement in relation to the levy of the tax is. There is no dispute about the facts that on the panels of the motor vans on each side as well as the rear. the name 'Brooke Bond' of the petitioner-company has been painted in large letters and displayed prominently. Does the same constitute advertisement?

(9) Encyclopedia Britannica, Vol. I, at page 179 states that advertising is a form of paid public announcement intended to promote the sale of a commodity or service, to advance an idea or to bring about some other effect desired by the advertiser; it is essentially a form of communication * * * * * and the term is broad enough to include a wide range or types, from a small two-line entry in a newspaper or magazine to a 'spread' of several full pages, or from a small sign in a shop window to a huge billboard with changing designs in coloured lights. * * * *. To a manufacturer, advertising is usually part of the firm's marketing programme and to the retailer it is a part of his display store promotions etc. and to the consumer it is a major source of information regarding products and services.

(10) In Advertising Creative Communication with Consumers by Harry Walker Hepner, the object of advertising as given on page 208 is to help mould the product image, namely, personality, character, reputation and the product image is the sum total of all the attitudes which people have towards the product and every product has an image, good, bad or dull, rational, functional or otherwise.

(11) In the Words and Phrases, Permanent Edition of West Publishing Company, advertisement is defined as a notice published in handbills or a newspaper; it is the act or practice of bringing anything as one's wants or one's business, into public notice as by paid announcement in periodicals or by handbills, placards etc. as to secure customers by advertising. It is also mentioned that advertisement is not used to apply anything and everything set up along the highway which may be designated as an 'advertisement', but rather the bills and posters giving notice of or advertising public entertainments. With regard to purposes of advertisement, it is mentioned in the same dictionary that in the absence of any commercial exploitation, mere mention of a name is not an advertisement purpose- As an illustration, it is mentioned that use of a person's picture on frontispiece of book detailing history of professional strike breaking in United States and use of such person's name in four places in 314 pages of book was not held to be use of the name and picture for 'advertising purposes' or for 'purposes of trade'.

(12) In the International Encyclopedia of the Social Sciences, Vol. 1, it is mentioned that advertising affects sales in two stages: in the first stage, it is intended to convey advertising messages that create awareness in potential customers and in the second stage they induce sales with varying degrees of effectiveness, In John W. Rast vs. Van Demon & Lewis Company, 60 Lawyers Edition 679(1), it was observed that advertising is merely identification and description, apprising of quality and place and it has no other object than to draw attention to the article to be sold and the acquisition of the article to be sold constitutes the only inducement to its purchase.

(13) The above material would show that a advertisement is intended to convey messages of commercial or business activities of the party and is intended to create awareness in potential customers and induce sales. It must, thereforee, have reference to the goods manufactured or sold and services rendered by the party or it may indirectly refer to the goods by reference to the efficiency and business-likeness of the manufacturers themselves. In any event, it must have relation to the goods and articles and should be information intended for the potential customers and not mere display of the name of the company unless the same happens to be the trade mark or trade name. In Ham- dard Dawakhana (Wakf) Lal Kuan Delhi and another vs . Union of India and others : 1960CriLJ671 , the Court was faced with the problem of determining whether a tax on advertisement infringed the Article of the Constitution relating to freedom of speech. The Court on page 687 observed that advertisement is no doubt form of speech, but its true character is reflected by the object for the promotion of which it is employed: it assumes the attributes and element of activity under Article 19 which it seeks to aid by bringing it to the notice of the public; when it takes the form of a commercial advertisement which has an element of trade or commerce, it no longer falls within the concept of freedom of speech, for the object is not propagation of idea-social, political or economic or furtherance of literature or human thought; but the commendation of the afficacy, value and importance of the article (for sale or services rendered). The Court found that the advertisement of the petitioner in that case relating to their drugs and medicines was part of their business and the advertisement was for the purpose of furthering the business of the petitioner and it did not have any relationship with the concept of freedom of speech.

(14) In my opinion the advertisement, in order to attract levy of the advertisement tax, must relate to the business and commrecial activity and must propogate 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 far 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.

(15) In the counter-affidavit, it has been stated that the advertisement of the petitioners in dispute are also displayed on hand-driven carts. They would, in any event, not be subject to the levy of the tax for the additional reason that the tax in item No. 3 of Appendix 'A' attached to the bye-law as notified by the Chief Commissioner (Annexure 'B-l') mentions non-illuminated advertisements carried on vehicles drawn by bullocks, horses or other animals, cycles or vehicles drawn by mechanical means. The carts driven by hands are not covered by this item or any other item of the bye-law. The levy of advertisement tax, thereforee, cannot in any event extend to the display of names on the hand-driven carts.

(16) Consequently, this petition is allowed and the respondents are directed not to enforce the demands of advertisement tax in dispute. The parties will bear their respective costs.


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