CORPORATION OF THE CITY OF BANGALOREversusKESORAM INDUSTRIES AND COTTON MILLS LTD. DUNLOP INDIA LTD. AND ORS. ETC. ETC.

     CORPORATION OF THE CITY OF BANGALORE                                   A
                        v.
    KESORAM INDUSTRIES AND COTTON MILLS LTD.
       DUNLOP INDIA LTD. AND ORS. ETC. ETC.

                        DECEMBER 8, 1989
                                                                            B
          [G.L. OZA AND M. FATHIMA BEEVI, JJ.]

     City of Ban!(alore Corporation Act, 1949: Section 98. Octroi-
Levy of-Consideration of objections by the Corporation against the
levy-Court-Whether can examine the manner of consideration.

     Taxation-Essentials of valid taxation-What are-Procedure for
                                                                            c
imposition of tax-Court-Whether to presume compliance with-Non-
compliance with condition-Precedent of levy of tax-Burden ofproof-
On whom.

      Words and phrases: 'Consideraiion'-Meaning of.                        D

      The City Corporation of Bangalore invited objections from the
public to the proposed levy of octroi on certain items. In a meeting of
the Corporation after placing the objections on the Table and circulat-
ing the Notes of the Commissioner analysing the objections, a unani-
mous resolution was passed levying the octroi.                              E

     The respondents challenged the validity of the Resolution con-
tending that it was passed in violation of Section 98(1) of the City of
Bangalore Corporation Act, 1949.

      The High Court declared the Resolution invalid holding that           F
because of shortage of time, the condition precedent for passing the
resolution i.e. real consideration of the objections was not satisfied.
Hence these appeals by the Corporation.

     Setting aside the judgment of the High Court and allowing the
appeals, this Court,                                                        G

      HELD: I.' Taxation in order to be valid must not only be
authorised by a statute, but also be levied or collected in strict con-
                                                   a
formity with the statute which authorises it .. Where condition-precedent
is laid down for statutory power being exercised it _must _be futnlled
before a sub-ordinate authority can·exercise·deiegated power,· When the     H

                                  443
    444         SUPREME COURT REPORTS                 [1989] Supp. 2 S.C.R.

A 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 prece-
  dent was not in fact complied with by the authority. {446H; 447B]
B
           2. The Municipal Administration 1s coordinated to secure the
    vital interest of the general public. It is the function of the representa-
    tive body to ascertain the local opinion and decide thereon before
    imposition of the tax. It has, therefore, to be assumed that local rep-
    resentatives who had taken note of the objections received in pursuance
    of the notice published have consciously reached the decision. Once it is
c   clear that there had been consideration of the objection, it is not for the
    Court to examine the manner in which the legislative will had been
    indicated. [447C-D]

          3. The Court has no jurisdiction to examine the validity of the
    reasons that goes into the decision or the motive that induced· the
D   delegated authority to exercise its powers. No judicial duty is laid on the
    authority in discharge of the statutory obligations, and, therefore, the
    only question to be examined is whether the statutory provisions have
    been complied with. [447H; 448A]

          4. The High Court was not justified in assuming from the time
E   factor alone that there could not have been a consideration of the objec-
    tions. It is not the function of the Court to probe into the details of the
    discussions and the deliberations before legislative will is seen 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' depending upon the nature of the subject. It may he
F   open to the councillors to express their views even within the limited time
    available. No standard can he prescribed in such matters. 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. [448H; 449A-B]
G         Municipal Board, Hapur v. Raghuvendra Kripal and Others,
    [1966] 1 S.C.R. 956; Sundarjas Kanya/al Bhatija & Ors. etc. v. The
    Collector, Thane, Maharashtra & Ors., [1989] 3 Judgment Today 57;
    Swadeshi Cotton Mills Co. Limited v. The State of U.P. and Others,
    [1962] 1 S.C.R. 422; Copa! Narain v. State of Uttar Pradesh &
H   Another, A.I.R, 1964 S.C. 370, followed.
CITY OF BANGALORE v. KESORAM INDUSTRIES [F ATHIMA BEE VI, J.]       445

     CIVIL APPELLATE JURISDICTION: Civil Appeal No.                        A
1216(N) of 1975.

                                WITH

     Civil Appeal Nos. 509·641(N) of 1977.
                                                                           B
     From the Judgment and Order dated 26.2.1975 of the Kamataka
High Court in W.P. No. 371of1975.

      A.S. Nambiar and M. Veerappa for the Appellant.

     K.N. Bhat, Vineet Kumar and K.M.K. Khan, for the Res-                 C
pondents.

      The Judgment of the Court was delivered by

      M. FATHIMA BEEVI, J. I. These connected appeals by special
                                                                           D
leave arise from the common judgment of the High Court ot
Kamataka. The Writ Petitions filed by the respondents 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
                                                                           E
declared as invalid.

      2. 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 inten-
tion and inviting objections. The Corporation may, after considering
                                                                           F
the objections, if any, received within the period specified determine
by resolution to levy the tax or duty.

      3. 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 98(1) of the Act inviting objections
                                                                           G
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
notification. 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.
                                                                           H
    446         SUPREME COURT REPORTS                11989) Supp. 2 S.C.R.

           4. Tne respondents challenged the validity of the resolution on
A
    the ground inter alia that there had not been consideration of the
    objections before passing the resolution and, therefore, the mandatory
    provision under Section 98( 1) was violated. The High Court in allow-
    ing the Writ Petitions has taken the view that what is contemplated
    under the sta~ute is a real consideration of the objections and not a
B   mere pretence and since the time was too short there was no oppor-
    tunity for such consideration and on account of non-consideration of
    the objections to the purposed levy the condition precedent for the
    passing of the resolution was not satisfied and therefore, the resolution
    is invalid.

          5. The learned counsel for the appellant submitted that the
c   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 con-
    taining the answers to the objection, distributed cyclostyled copies of
    the note before the meeting, and the subject was taken up and passed
D   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 v. Raghuvendra
    Kripal and Others, [1966) 1 S.C.R. 956 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
E   the presumption that the statutory authority has followed the pres-
    cribed procedure sho.uld 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
    decision. The respondents' learned counsel submitted that considera-
F   tion of the objections is a condition precent for imposition of the levy
    and the High Court having been satisfied of the non-compliance with
    this mandatory requirement, has rightly invalidated the tax.

         6. The admitted facts are that the resolution had been passed on
    30-12-74 after placing the objections on the table and, distributing
G   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
H   statute, but also be levied or collected in strict conformity with the
      CITY OFBANGALOREv. KESORAMINDUSTRIES [FATHIMABEEVl,J.] 447

      statute which authorises it. Where a condition precedent is laid down
                                                                                     A
      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 cer-
      tain conditions precedent, the Court would presume the regularity of
      the order including the fulfilment of the condition precedent. It is for
-i)   the party who challenged the legality to show that the condition prece-        B
      dent was not in fact complied with by the authority.

             8. The Municipal Administration is coordinated to secure the
      vital interest of the general public. It is the function of the representa-
      tive 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               c
      pursuance of the notice publised have consciously reached the deci-
      sion. 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 legisla-
      tive will had been indicated. We shall only refer to the recent decision
      of this Court in Sundarjas Kanya/al Bhatiia & Ors. etc. v. The                 D
      Collector, ]hane, Maharashtra & Ors., Judgments Today I1989] 3 S.C.
      57:
 'r
                   "It must be noted that the functions of the Government in
                   establishing a Corporation under the Act is neither execu-
                   tive nor administrative. Counsel for the appellants was           E
                   right in his submission that it is legislative process indeed .
                 . No judicial duty is laid on the Government in discharge of
                   the statutory duties. The only question to be examined is
                   whether the statutory provisions have been complied with.
                   If they are complied with, then, the Court could say no
                   more. In the present case the Government did publish th.e         F
                   proposal by a draft notification and also considered the
                   representations received. It was only thereafter, a decision
                  was taken to exclude Ulhasnagar for ihe time being. That
                   decision became final when it was notified under Section
                   3(2). The Court cannot sit in judgment over such decision.
                  It cannot lay dqwn norms for the exercise of that power. It        G
                  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,       H
    448        SUPREME COURT REPORTS                   [ 1989] Supp. 2 S.C.R.

A the only question to be examined is whether the statutory provisions
  have been complied with.

         9. In The Swadeshi Cotton Mills Co. Limitedv. The State of U.P.
    and Others, [1962] 1 S.C.R. 422 this Court held that:

B              "Where a condition precedent has to be satisfied 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 desir-
               able that it should be so mentioned for then the presump-
               tion that the condition was satisfied would immediately
c              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 o.rder, it will not become void
               ab initio and only a further burden is ca"st on the authority
               passing the order to satisfy the court by other means, e.g.
D              by filing an affidavit, that the condition precedent was
               satisfied."

         10. In Gopal Narain v. State of Uttar Pradesh & Another, A.LR.
    1964 S.C. 370, this Court held that:

E              "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 collected except in accordance with law. If it is not
F              imposed in accordance with law, it would infringe the
               fundamental right guaranteed under Art. 19( l)(f) 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
G              authority if it imposes a tax in derogation of the statutory
               provision.''

        11. 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
H of the discussions and the deliberations before legislative will is seen
CITY OF BANGALORE v. KESORAMINDUSTRIES (FATHIMABEEVl,J.J 449

expressed by passing the resolution. The connotation of the word          A
'consideration' occuring in sub-section (1) of Section 98 comprehends
'taking note of or 'paying heed to' depending upon the nature of the
subject. It may be open to the councillors to exp~ess their views even
within the limited time available. No standard can be prescribed in
such matters. When it is shown that the council had the opportunity to
consider the objections received, it has to be deemed, that they had      B
taken note of the same before reaching a decision.

      We are, therefore, of the view that the High Court has commit-
ted an error in assuming on account of the shortage of time alone and
that there had been non-compliance \\'itll the requirements under the
statute. We set aside the judgment of the High Court and allow the        c
appeals. In the circumstances of the case we make no order as to costs.

T.N.A.                                               Appeals allowed.