Bombay High Court
Icici Bank Ltd. And Anr vs The Municipal Corporation Of ... on 22 March, 2016
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2448 OF 2007
WITH
NOTICE OF MOTION (L) NO. 775 OF 2015
ICICI Bank Limited & Anr. .. Petitioners
vs.
The Municipal Corporation of
Greater Mumbai & Ors. .. Respondents
Mr. Sachin Chandarana with Mr. Vijayendra Purohit i/b. M/s.
Manilal Kher & Ambalal & Co. for Petitioners.
Mr. R. S. Apte - Senior Advocate with Ms K. H. Mastakar for
Respondents - MCGM.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 27 January 2016
Date of Pronouncing the Judgment : 22 March 2016
JUDGMENT :-
1] The challenge in this petition is to the notices (Exhibits A-1 to
A-7) and the order dated 24 October 2007 (Exhibit I) requiring the
petitioners to obtain permission and pay fees for the purposes of
displaying illuminated signboards upon the petitioners bank
premises, ATM centres, extension counters. The petitioners
basically contend that such display does not constitute
'advertisement' for the purposes of section 328-A of the Mumbai
Municipal Corporation Act, 1888 (said Act) and therefore, the
insistence on the part of the municipal authorities (respondents) to
even regulate the same, is ultra vires.
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2] The petitioners had initially instituted writ petition no. 2377 of
2002 when when confronted with the notices issued by the
respondents in the purported exercise of powers conferred by
sections 328 and 328-A of the said Act. This court, by judgment and
order dated 8 October 2002, mainly relying upon the decision of the
Hon'ble Supreme Court of India in the case of Municipal
Corporation of Greater Mumbai vs. Bharat Petroleum
Corporation Ltd.1, had dismissed the said petition. The petitioners,
thereupon instituted civil appeal no. 4678 of 2005, which was since
disposed of by the judgment and order dated 4 August 2005. This
judgment and order is reported as ICICI Bank & Anr. vs. Municipal
Corporation of Greater Bombay & Ors.2.
3] In the aforesaid civil appeal, the Hon'ble Supreme Court upon
concluding that the notices / notices of demand cannot be said to
have been issued under section 328 of the said Act, directed the
respondents to reexamine the issue on the basis that the notices be
deemed to have been issued under section 328-A of the said Act. In
paragraphs 20 and 21 the Hon'ble Supreme Court has observed
thus:
"20. 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
1 2002 (4) SCC 219
2 (2005) 6 SCC 404
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interest but would only tell about the location of the ATM
centers to the existing account holders only. Whether
signboard of an 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 corporation to the appellant are
under Sections 328, 328-A 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 328-A 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
328-A of the Act after indicating the bank a fresh date of
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hearing.
21. 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."
4] In pursuance of the aforesaid, and upon afford of opportunity
to the petitioners to submit their say, the respondents, by their
impugned order dated 24 October 2007 (Exhibit I) have concluded
that the illuminated signboards put up by the petitioners upon their
bank premises, ATM centres and extension counters amount to
'advertisement' for the purposes of section 328-A of the said Act.
Aggrieved by such determination, the petitioners have instituted the
present petition.
5] Mr. Sachin Chandarana, the learned counsel for the
petitioners has submitted that the impugned order is in breach of
the specific directions issued by the Hon'ble Supreme Court in the
civil appeal instituted by the petitioners, in as much as the
respondents have neither undertaken the exercise as directed nor
have they examined the factual aspects in the proper perspective.
Mr. Chandarana submitted that mere display of name upon the
signboard is never regarded as advertisement as per the provisions
contained under the said Act. However, if such signboard is
illuminated, the respondents treat the same as an 'advertisement'.
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This according to Mr. Chandarana, is clearly an absurd and
illogical.
6] Mr. Chandarana further submitted that the sole purpose for
display of illuminated signboard or name boards is to assist the
customers in determining the location of the bank premises, ATM
centres or extension counters, even after day light hours. He
submitted that such illuminated display, particularly upon ATM
centres, assists, not merely the customers of the petitioners bank
but also ATM card holders of other banks. For this purpose, he
relied the RBI guidelines which expressly permit use of ATM centres
of banks inter se between their respective customers. Mr.
Chandarana submitted that these aspects have been ignored by the
respondents in making the impugned order.
7] Mr. Chandarana finally submitted that the operative portion of
the impugned order which purports to bring within the regulatory
net of the respondents even illuminated signboards or name
boards upon bank premises, ATM centres and extension counters,
which were not specifically referred to or included in the impugned
notices / notices of demand is clearly ultra vires and violates the
principles of natural justice and fair play. Mr. Chandarana submitted
that since the Hon'ble Supreme Court had directed that each case
should be considered upon its own facts, the petitioners were
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entitled to specific notice, so that the petitioners could place
appropriate material to satisfy the respondents that such illuminated
display does not constitute 'advertisement' for the purposes of
section 328-A of the said Act.
8] Mr. R. S. Apte, the learned Senior Advocate for the
respondents has relied upon a dictionary meanings of the term
'advertisement' as also certain observations made by the Hon'ble
Supreme Court whilst disposing of the civil appeal instituted by the
petitioners. Mr. Apte has submitted that the respondents have
undertaken the exercise as directed by the Hon'ble Supreme Court
and on the basis of the material so collected, have made the
impugned order. Prior thereto, full opportunity of hearing/
submission of say was afforded to the petitioners and the
petitioners, have availed of the same in ample measure. Mr. Apte
submitted that the respondents have applied the correct tests,
adverted to the correct parameters and the decision made, was
after due compliance with the principles of natural justice and fair
play. For all these reasons, Mr. Apte submitted that there is no case
made out by the petitioners warranting judicial review.
9] Finally, Mr. Apte submitted that since the material collected
pertains to display of illuminated signboard / name boards by the
petitioners throughout the jurisdiction of the MCGM, directions have
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been issued with regard to such illuminated signboards / name
boards, even though the same may not have been specifically
referred to in the impugned notices. The petitioners have submitted
their say in the context of such material as well, without any demur.
Mr. Apte submitted that in fact, there is not even a ground raised in
the petition, in the context of such inclusion in the impugned order.
In the absence of demonstration of any prejudice whatsoever, the
petitioners cannot be permitted to raise hyper technical pleas, in the
matter of this nature.
10] Rival contentions now fall for determination.
11] There is no merit in the petitioners challenge to the
classification of signboard or name boards on the basis whether
they are illuminated or not, particularly since the provisions
contained in section 328-A of the said Act, which clearly bring about
this distinction, have not been challenged. Besides, in the case of
ICICI Bank (supra) the Hon'ble Apex Court has held that section
328-A of the said Act prohibits without prior permission of the
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 the 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
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reference to any sale, entertainment or meeting organised therein,
or it relates to business of a railway company. The exceptions
referred to in the provision clearly have a nexus and relevance to
the business or trade or commercial activities.
12] In this view of the matter, the distinction between illuminated
and non illuminated advertisements, in the context of the provisions
contained in section 328-A of the said Act, will have to be respected.
The moot question in this petition however, is whether the display of
illuminated signboards or name boards upon the bank premises,
ATM centres and extension counters indeed, amounts to
'advertisement' for the purposes of section 328-A of the said Act.
13] There is no statutory definition of the term 'advertisement'
contained in the said Act and therefore, the term will have to be
understood in its natural, ordinary and popular sense. In fact, in
the case of ICICI Bank (supra), the Hon'ble Supreme Court has
specifically approved the application of such principle of
interpretation, by reference to Principles of Statutory Interpretation
(9th Edition, 2004) by Justice G. P. Singh, Chapter 2, p. 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 ascribed that natural, ordinary or popular
meaning which they have in relation to the subject-matter
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with reference to which and the context in which they have
bee used in the statute. 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 "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 proper to look for some
other possible meaning of the word or phrase".
14] The Hon'ble Supreme Court, in the case of ICICI Bank
(supra) has also made reference to the dictionary meanings of the
term 'advertisement', which are incidentally, the very same
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meanings upon which the respondents have placed reliance in their
affidavit in reply. In paragraph 14, the Hon'ble Supreme Court has
observed thus:
"14. 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. 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.
New Encyclopaedia Brittanica 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 toward
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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, publicize an event, etc.
Advertising 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.
Chambers Dictionary
Advertisement - the act of advertising; a public notice,
usu 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.
15] Finally, in the case of ICICI Bank (supra), the Hon'ble
Supreme Court has held that an advertisement is a matter that
draws attention of the public or segment of public to a product,
service, person, organisation or line of conduct in a manner
calculated to promote or oppose directly or indirectly that product,
service, person, organisation or line of conduct intended to
promote sale or use of product or range of products. An
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advertisement is an information that the 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. The
context in which the term 'advertisement' has been used in section
328-A of the said 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 such ordinary parlance
meaning is not given to the word 'advertisement', in section 328-A,
it will lead to anomalous position in as much as a simple name
board put on a house to indicate who is residing in the premises,
would also be an advertisement. A name board or signboard of a
trader visible to the public or identifying the place of business
would also be an advertisement. Therefore, 'advertisement' within
meaning of section 328-A of the said Act must primarily have a
commercial purpose and should be indicative of the business
activity of the displayer with a view to attract attention of people to
its business. Therefore, in order to determine whether a signboard
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or name board tantamounts to be an advertisement or not would
depend upon the facts of each case, depending upon the number
of ATM centres deployed by a particular bank in a particular locality
or place or even in a city, to have flavour of commercial or business
interest of the service provider. Obviously, the parameters
suggested are illustrative and not exhaustive.
16] The respondents, in pursuance of a remand by the Hon'ble
Supreme Court have now undertaken the exercise as directed. The
respondents have offered reasonable opportunity to the petitioners
to make their submissions in the context of the exercise undertaken
and the material collected. Thereafter, the respondents have
determined that the name boards or signboard displayed by the
petitioners over their premises, ATM centres and extension counters
tantamount to 'advertisement' for the purposes of section 398-A of
the said Act. Since, such advertisements are illuminated, necessary
directions have been issued to the petitioners to comply with the
regulatory provisions contained in section 328-A of the said Act.
17] Amongst other matters, the respondents in the impugned
order, have made reference to information displayed by the
petitioners themselves at their website ICICI Bank.com. The
respondents have adverted to the circumstance that the petitioners
have, within the jurisdiction of the Municipal Corporation of Greater
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Mumbai (MCGM) not less than 69 branches, 143 ATM centres, 2
extension counters and 28 drop boxes, upon which, the petitioners
have displayed such illuminated signboard or name board. The
respondents, have taken into consideration the number and density
of branches, ATM centres etc. in the context of jurisdictional limits
of the MCGM. The respondents have taken into consideration the
manner of display, the size of display as well as the impact of such
display. The respondents have also made reference to the
emphasis upon the name ICICI, particularly in the context of
several signboards or name boards displayed by the various
businesses undertaken under the name and style of ICICI Lombard,
ICICI Prudential and ICICI Mutual Funds and so on, which also
have distinct commercial exposition. The respondents have also
taken into consideration the size of the signboard or name boards
and the frequent circumstance that the word ICICI is displayed in
larger letters, as compared to information with regard to the
services provided like e.g. '24 Hour ATM'. Thus upon cumulative
consideration of all facts and circumstances as well as parameters,
the respondents, have concluded that signboards and the name
boards displayed by the petitioners over their bank premises, ATM
centres, extension counters constitute 'advertisement' for the
purposes of section 328-A of the said Act.
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18] This is not a case where any irrelevancies can be said to
have crept into the decision making process nor is this a case
where relevancies can be said to have been ignored. The
parameters to which the respondents have addressed, can
themselves, not to be said to be irrelevant or extraneous. In fact, the
reference to the number of ATM centres established by a particular
bank in a particular locality or place or even the city, was one of the
parameters suggested by the Hon'ble Supreme Court in the case of
ICICI Bank (supra). The respondents in making their decision, have
offered more than ample opportunity to the petitioners and there is
really no scope to interfere with the decision making process on the
grounds of lack of procedural fairness or other such reason.
19] The respondents, on the basis of the exercise undertaken by
them and the material collected thereby, have rightly held that the
purpose of the name board or the signboard in the context of the
facts and circumstances is presented was not to merely identify the
place or location of the business or to merely indicate the nature of
the activity undertaken within but the purpose was clearly
commercial exposition of the products and services offered by the
petitioners. The purpose was clearly impart information not just to
existing customers but also, to potential customers, with a view to
increase in business.
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20] Considering, the number and density of such signboard and
name boards, the manner and size of display, the illumination, the
illumination, there is no reason to fault the decision of the
respondents that the signboard and name boards displayed by the
petitioners are also for the purposes of influencing the prospective
customers to make decision about which service provider they may
choose. In fact, as observed by the Hon'ble Supreme Court itself in
the case of ICICI Bank (supra) such signboard or name boards
may also be construed to commercial exploitation indirectly, as they
may not aim at the existing customers only but also may affect the
decision of the prospective customers. They tell the prospective
customers that the service of the ATM round the clock is being
made available by the bank which would influence the prospective
customers to make a decision about which service provider he or
she has to choose. The signboard also helps people to find out
which bank is offering better services as compared to other banks.
The fact that the bank has more ATM centres than other banks, in
the competitive trade and business, provides incentive to people to
choose that bank. The fact that one bank has so many ATM centres
in the given location helps them to get more account holders in that
area. This also serves the commercial interest of the bank. In this
case, the respondents have taken into consideration all these
aspects and accordingly, there is no reason to interfere with the
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impugned order.
21] In the context of the manner and size of name boards or
signboard, this court, in the case of Municipal Corporation of
Greater Mumbai & Ors. vs. Ratiloku Shetty (Smt.) 3 has
regarded this aspect as relevant and upheld the decision of the
MCGM in treating the illuminated neon signboard over the
restaurant 'Ashok Restaurant and Beer Bar' as advertisement within
meaning of Section 328-A of the said Act. Upon reference to various
dictionary meanings of the term 'advertisement', the Division Bench
of this Court at paragraphs 11 and 12 observed thus:
"11. It is important to consider the meaning of the term
"Advertisement". The discussion under the heading
"ADVERTISING" Encyclopaedia, to be found in Encyclopaedia
Britannica, 1969 Edition Vol. I, page 179, read as under:--
"Advertising : 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 through such divers, media a hand bills,
news papers, magazines, billboards, letters, radio and
television broadcasts and motion pictures. The term is
broad enough to include a wide range of types, from all
small two-line entry in a newspaper or magazine to
(spread of several full pages, or from a small sign in a shop
3 2002 (2) Bom.C.R. 501
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window to a huge bill board with changing designs in
coloured lights."
Similarly in Collier's Encyclopaedia, 1957 Edition, Vol. I at page
107 the following discussion appears:--
"Advertising : That portion of published information,
whether seen or heard, the cost of which is born by
business that expect to gain by the spread of the ideas
expressed, usually commercial notices of goods and
services for sale."
In Webster's THIRD NEW INTERNATIONAL DICTIONARY the
following meanings are to be found given to the very
"Advertise" ;
la : to make known to (someone) : give notice to : INFORM,
NOTIFY ... Obs : WARN, ADMONISH.
2 : to make generally known : call attention to : give notice
of: a : to give publicity to, b : to make conspicuous, c(1) : to
give public notice of: announce publicly esp. by a printed
notice or through a radio or television broadcast, (2) : to
call public attention to esp. by emphasizing desirable
qualities so as to arouse a desire to buy or patronize."
For the word "advertisement" the said dictionary goes on to
indicate the meaning as follows :--
"1 : the action of advertising : a calling attention to or making
known : as a obs : WARNING, ADMONITION, b obs : an
informing or notifying : NOTIFICATION c : a calling to public
attention : PUBLICITY.
2a : archaic : a statement calling attention to something :
NOTICE, b : a public notice : esp : a paid notice or
announcement published in some public print (as a newspaper,
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periodical, poster, or handbill) or broadcast over radio or
television."
12. On a plain construction of Section 328 reproduced (supra)
we find that in term permission of the Municipal Commissioner is
not required in respect of any advertisement which is not an
illuminated advertisement nor a sky-sign and which relates to
the trade or business carried on within the land or building upon
which such advertisement is exhibited : vide proviso to Section
328-A."
22]
The circumstance that the ATM centres of the petitioner bank
can be used or are being used by ATM card holders of other banks
or the circumstance that the RBI has permitted such inter se user, is
really not very relevant for determining the issue as to whether the
signboards and name boards displayed by the petitioner bank
tantamount to 'advertisement' for the purposes of section 328-A of
the said Act. Even though, inter se user of ATM centers may be
permissible, the circumstance that the petitioner bank has so many
ATM centres within the jurisdiction of the MCGM, is undoubtedly a
circumstance which provides a competitive edge to the petitioners.
As noted earlier, the Hon'ble Supreme Court, in the case of ICICI
Bank (supra) has observed that the fact that the bank has more
ATM centres than the other banks, in the competitive trade and
business, provides an incentive to the people to choose than bank.
Accordingly, there is no reason to interfere with the impugned order
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on the basis of the contention that the circumstance that inter se
user of ATM centres may not have been specifically considered.
23] In the matters of this nature, the limits of judicial review also
have to be borne in mind. This Court, is certainly not called upon to
exercise any appellate jurisdiction in a matter of this nature. The
power of judicial review in such matters is neither unqualified nor
unlimited. It has its own limitations. The scope and extent of the
power that is so very often invoked has been the subject-matter of
several judicial pronouncements within and outside the country.
The Hon'ble Supreme Court, has approved the classic and oft-
quoted passage from Council of Civil Service Unions vs.
Minister for the Civil Service4, where Lord Diplock summed up the
permissible grounds of judicial review thus:
"Judicial Review has I think developed to a stage today when,
without reiterating any analysis of the steps by which the
development has come about, one can conveniently classify
under three heads the grounds on which administrative action is
subject to control by judicial review. The first ground I would call
'illegality', the second 'irrationality' and the third 'procedural
impropriety'.
By 'illegality' as a ground for judicial review I mean that the
decision-maker must understand correctly the law that regulates
his decision-making power and must give effect to it. Whether he
has or not is par excellence a justiciable question to be decided,
4 (1984) 3 ALL ER 935 (HL)
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in the event of dispute, by those persons, the judges, by whom
the judicial power of the State is exercisable.
By 'irrationality' I mean what can by now be succinctly referred to
as 'Wednesbury unreasonableness'. It applies to a decision
which is so outrageous in its defiance of logic or of accepted
moral standards that no sensible person who had applied his
mind to the question to be decided could have arrived at it.
Whether a decision falls within this category is a question that
judges by their training and experience should be well equipped
to answer or else there would be something badly wrong with our
judicial system... ...
I have described the third head as 'procedural impropriety' rather
than failure to observe basic rules of natural justice or failure to
act with procedural fairness towards the person who will be
affected by the decision. This is because susceptibility to judicial
review under this head covers also failure by an administrative
tribunal to observe procedural rules that are expressly laid down
in the legislative instrument by which its jurisdiction is conferred,
even where such failure does not involve any denial of natural
justice."
24] In the case of Tata Cellular v. Union of India5, the Hon'ble
Supreme Court in the context of judicial review at paragraph 77 has
observed thus:
"77. The duty of the court is to confine itself to the question of
legality. Its concern should be :
5 (1994) 6 SCC 651
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1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have
reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a
particular policy or particular decision taken in the fulfilment of
that policy is fair. It is only concerned with the manner in which
those decisions have been taken. The extent of the duty to act
fairly will vary from case to case. Shortly put, the grounds upon
which an administrative action is subject to control by judicial
review can be classified as under :
(i) Illegality : This means the decision-maker must understand
correctly the law that regulates his decision- making power and
must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety."
25] In the case of Heinz India Private Limited & Anr. vs. State
of Uttar Pradesh & Ors.6 the Hon'ble Supreme has held that there
is almost complete unanimity on the principle that the judicial review
is not so much concerned with the decision itself as much with the
6 (2012) 5 SCC 443
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decision-making process. (See Chief Constable of the North
Wales Police vs. Evans)7. As a matter of fact, the juristic basis for
such limitation on the exercise of the power of judicial review is that
unless the restrictions on the power of the court are observed, the
courts may themselves under the guise of preventing abuse of
power, be guilty of usurping that power. That the court dealing with
the exercise of power of judicial review does not substitute its
judgment for that of the legislature or executive or their agents as
to matters within the province of either, and that the court does not
supplant "the feel of the expert" by its own review, is also fairly well
settled by the decisions of this Court. In all such cases, judicial
examination is confined to finding out whether the findings of fact
have a reasonable basis on evident and whether such findings are
consistent with the laws of the land. (See Union of India vs. S.B.
Vohra8, Shri Sitaram Sugar Co. Ltd. vs. Union of India 9 and
Thansingh Nathmal vs. Supdt. of Taxes)10.
26] Applying therefore, the aforesaid parameters of judicial
review, it can hardly be said that the impugned order made by the
respondents warrants interference in the exercise of extra ordinary
jurisdiction under Articles 226 and 227 of the Constitution of India.
In this case, as noted earlier, the respondents have undertaken the
7 (1982) 3 All ER 141 (HL)
8 (2004) 2 SCC 150
9 (1990) 3 SCC 223
10 AIR 1964 SC 1419
skc JUDGMENT- WP 2448-2007
exercise as directed by the Hon'ble Supreme Court in the case of
ICICI Bank (supra). The respondents have applied the correct tests
and parameters for the purposes of determining whether the name
boards or signboard indeed tantamount to 'advertisement' for the
purposes of section 328-A of the said Act. The respondents have
afforded an ample opportunity to the petitioners to either place their
own material on record or to contradict the material which the
respondents had collected for the purposes of determining the
issue. Relevant material has been considered by the respondents
and it is not a case where irrelevancies have crept into the decision
making process. The decision arrived at by the respondents, on the
basis of material on record, can hardly be styled as perverse,
unreasonable or illogical. For all these reasons, and also, in view of
the restrictive parameters of judicial review in the matter of this
nature, there is no case made out to interfere with the impugned
decision.
27] There is no case made out to interfere the direction in the
impugned order in the context of illuminated name boards put up at
ATM centres, extension counters, bank branches by the petitioners
within the jurisdiction of the MCGM, which may not have been
specifically mentioned in the notices issued to the petitioners. The
respondents, as noted earlier, have undertaken the exercise as
directed by the Hon'ble Supreme Court in the case of ICICI Bank
skc JUDGMENT- WP 2448-2007
(supra). In pursuance thereof, material was collected with regard to
the display of illuminated name boards or signboards by the ICICI
Bank Limited throughout the territorial limits of the MCGM. The
petitioners were offered opportunity to submit their say in the
context of such entire material, which opportunity, the petitioners
have duly availed. Possibly, this is a reason why the ground now
raised by Mr. Chandarana, the learned counsel for the petitioners,
does not even find any place in the grounds raised in the petition.
The learned counsel however submitted that such ground has been
raised in 'affidavit in rejoinder'. The affidavit in rejoinder is hardly a
place to raise substantial grounds. That apart, decisions of this
nature, need not be interfered with on the ground of some technical
or hyper technical pleas alleging formal failure of natural justice. In
this case, principles of natural justice have been complied with, in
substantial measure. The element of prejudice is required to be
specifically pleaded and made out. The petitioners have failed to do
this.
28] For all the aforesaid reasons, there is no case made out to
interfere with the impugned notices / order. This petition is therefore
dismissed. Interim order, if any, stands vacated. The amounts, if
deposited by the petitioners in this court, may be withdrawn by the
respondents unconditionally. There shall be no order as to costs.
skc JUDGMENT- WP 2448-2007
29] Rule is accordingly discharged with no order as to costs.
30] In view of the disposal of the writ petition, the notice of motion
(l) no.775 of 2015 also stands disposed of.
31] All concerned to act on basis of authenticated copy of this
order.
(M. S. SONAK, J.)
32]
At this stage, Dr. Birendra Saraf, the learned counsel for the
petitioners requests for continuation of order dated 8 November
2007 for a further period of twelve weeks. The learned counsel
appearing for the respondents objects to the continuation of the
interim relief.
33] The interim relief has been in operation since 8 November
2007 and therefore, it would be appropriate to extend the same for
a further period of six weeks from today. Accordingly, the interim
order to operate for a period of six seeks from today.
(M. S. SONAK, J.)
Chandka
