Civil Appeal No 1216Nof 1975
WITH Civil Appeal Nos
509 641N of 1977
From the Judgment and Order dated 2621975 of the Karnataka High Court in WP No 371 of 1975
AS Nambiar and M Veerappa for the Appellant
KN Bhat Vineet Kumar and KMK Khan for the Re spondents
The Judgment of the Court was delivered by M FATHIMA BEEVI J
1
These connected appeals by special leave arise from the common judgment of the High Court of Karnataka
The Writ Petitions filed by the respond ents against the appellant the Corporation of the City of Bangalore were allowed and the resolution dated the December 30 1974 passed by the Corporation levying octroi on certain additional items under Section 98 of the City of Bangalore Corporation Act 1949 shortly stated as the act  was declared as invalid
Section 98 of the Act requires the Corporation before passing any resolution imposing a tax or duty for the first time to publish a notice in the Official Gazette and in the local newspapers of its intention and inviting objections
The Corporation may after considering the objections if any received within the period specified determine by resolution to levy the tax or duty
On the recommendation of the Standing Committee to levy octroi on certain new items of goods the appellant published a notice as contemplated under Section 981 of the Act inviting objections from the public and the said notice was published in the Gazette dated 17 9 1974
Several objections were received in pursuance of the said notifica tion
The subject was included in the supplementary agenda at the meeting held on 30 12 1974
It was taken up as Item No 146 and the resolution was passed unanimously
The Commissioner thereafter issued notification
446 4
The respondents challenged the validity of the reso lution on the ground inter alia that there had not been consideration of the objections before passing the resolu tion and therefore the mandatory provision under Section 981 was violated
The High Court in allowing the Writ Petitions has taken the view that what is contemplated trader the statute is a real consideration of the objections and not a mere pretence and since the time was too short there was no opportunity for such consideration and on account of non consideration of the objections to the pur posed levy the condition precedent for the passing of the resolution was not satisfied and therefore the resolution is invalid
The learned counsel for the appellant submitted that the objections have been placed on the table after the Commissioner had prepared a note of the several objections analysing the nature of the objection setting out the legal conditions regarding the levy and containing the answers to the objection distributed cyclostyled copies of the note before the meeting and the subject was taken up and passed unanimously
The text of the resolution it is submitted indicated that there was proper application of mind by the council
Relying on the decision of this Court in Municipal Board Hapur vs Raghuvendra Kripal and Others the learned counsel maintained that the High Court should not have ventured into the question of the manner in which consideration was given to the item in the agenda and the presumption that the statutory authority has followed the prescribed procedure should prevail
It was also pointed out that the Mayor of the Corporation and one of the councillors have filed affidavits affirming that the objections along with the note were placed on the table and the objections were taken note of before reaching the deci sion
The respondents  learned counsel submitted that con sideration of the objections is a condition precent for imposition of the levy and the High Court having been satis fied of the non compliance with this mandatory requirement has rightly invalidated the tax
The admitted facts are that the resolution had been passed on 30 12 74 after placing the objections on the table and distributing notes of the Commissioner analysing the objections and containing answers to the same
The subject was in the urgent agenda and the record of proceedings revealed that the resolution had been passed unanimously 7
Taxation in order to be valid must not only be authorised by a statute but also be levied or collected in strict conformity with the 447 statute which authorises it
Where a condition precedent is laid down for statutory power being exercised it must be fulfilled before a sub ordinate authority can exercise delegated power
When the statute requires that delegated power may be exercised on fulfilment of certain conditions precedent the Court would presume the regularity of the order including the fulfilment of the condition precedent
It is for the party who challenged the legality to show that the condition precedent was not in fact complied with by the authority
The Municipal Administration is coordinated to secure the vital interest of the general public
It is the function of the representative body to ascertain the local opinion and decide thereon before imposition of the tax
It has therefore to be assumed that local representatives who had taken note of the objections received in pursuance of the notice published have consciously reached the decision
Once it is clear that there had been consideration of the objec tion it is not for the Court to examine the manner in which the legislative will had been indicated
We shall only refer to the recent decision of this Court in Sundarjas Kanyalal Bhatija  Ors
vs The Collector Thane Maharashtra  Ors Judgments Today It must be noted that the functions of the Government in establishing a Corporation under the Act is neither executive nor administra tive
Counsel for the appellants was right in his submission that it is legislative process indeed
No judicial duty is laid on the Gov ernment in discharge of the statutory duties
The only question to be examined is whether the statutory provisions have been complied within they are complied with then the Court could say no more
In the present case the Government did publish the proposal by a draft notification and also considered the represen tations received
It was only thereafter a decision was taken to exclude Ulhasnagar for the time being
That decision became final when it was notified under Section 32
The Court cannot sit in judgment over such deci sion
It cannot lay down norms for the exer cise of that power
It cannot substitute even its juster will for theirs
 The Court has no jurisdiction to examine the validity of the reasons that goes into the decision or the motive that induced the delegated authority to exercise its powers
No judicial duty is laid on the authority in discharge of the statutory obligations and therefore 448 the only question to be examined is whether the statutory provisions have been complied with 9
In The Swadeshi Cotton Mills Co Limited vs The State of UP and Others  this Court held that Where a condition precedent has to be satis fied before a subordinate authority can pass an order executive or in the nature of subordinate legislation it is not necessary that the satisfaction of the condition should be recited in the order itself unless the statute requires it But it is desirable that it should be so mentioned for then the pre sumption that the condition was satisfied would immediately arise and the burden would be on the persons challenging the order to show that the recital is not correct
Even when the recital is not made in the order it will not become void ab initio and only a further burden is cast on the authority pass ing the order to satisfy the court by other means eg by filing an affidavit that the condition precedent was satisfied
In Gopal Narain vs State of Uttar Pradesh  Another   this Court held that There is a presumption when a statutory authority makes an order for imposition of tax that it has followed the prescribed procedure
The said presumption is not in any way weakened by the long acquiescence in the imposition by the residents of the locality
Nonetheless no tax shall be levied or collect ed except in accordance with law
If it is not imposed in accordance with law it would infringe the fundamental right guaranteed under article 191f of the Constitution
While the long period of time that lapses between the imposition of the tax and the attack on it may permit raising of certain presumptions where the evidence is lost by efflux of time it cannot exonerate the statutory authority if it imposes a tax in derogation of the statuto ry provision
The High Court was not justified in assuming from the time factor alone that there could not have been a consideration of the objections
It is not the function of the Court to probe into the details of the discussions and the deliberations before legislative will is seen 449 expressed by passing the resolution
The connotation of the word consideration  occuring in sub section 1 of Section 98 comprehends taking note of  or paying heed to  depend ing upon the nature of the subject
It may be open to the councillors to express their views even within the limited time available
No standard can be prescribed in such mat ters
When it is shown that the council had the opportunity to consider the objections received it has to be deemed that they had taken note of the same before reaching a decision
We are therefore of the view that the High Court has committed an error in assuming on account of the shortage of time alone and that there had been non compliance with the requirements under the statute
We set aside the judgment of the High Court and allow the appeals
In the circumstances of the case we make no order as to costs
TNA Appeals allowed


Summary:
For selling an immovable property respondent entered into an agreement with the appellant
Appellant paid part of the consideration and he was put in possession of the property
Since the respondent failed to execute the regis tered sale deed the appellant filed a suit
There was no specific averment in the suit that the appellant was and had always been ready and willing to perform his part of the agreement
Respondent contended inter alia that the suit was not maintainable for non compliance with the provisions of Section 16c of the 
This issue was directed to be tried as a preliminary issue
At that stage the appellant applied for leave to amend the plaint by incorporating an averment that he was always and had been ready and willing to perform his part of the agreement
The trial court rejected the application
The revision petition filed in the High Court was dis missed
The High Court took the view that the application for amendment was filed beyond the period of limitation and cannot be granted as a vested interest of the respondent would be disturbed
This appeal is against the judgment of the High Court
Allowing the appeal this Court HELD 11 Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct but the amendment would cause him an injury which could not be compensated in costs
It is merely a particular case of this general rule that
where a plaintiff seeks to amend by setting up a fresh 475 claim in respect of a cause of action which since the institution of the suit had become barred by limitation the amendment must be refused to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim
Courts would as a rule decline to allow amendments if a fresh suit on the amended claim would be barred by limita tion on the date of the application
But that is a factor to be taken into account in exercise of the discretion as to whether application for amendment should be granted and does not affect the power of the Court to order it if that is required in the interest of justice
477A D 12 In the present case no fresh cause of action was sought to be introduced by the amendment applied for
All that the appellant sought to do was to complete the cause of action for specific performance and add an averment which required to be added in view of the provisions of sub sec tion c of Section 16 of the 
There was no fresh cause of action sought to be introduced by the amendment and hence no question of causing any injustice to the respondent on that account arose
477E F Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil and Ors  and LJ Leach  Co and Anr
vs Messrs Jardine Skinner  Co   relied on
Ouseph Varghese vs Joseph Aley  Ors  distinguished