JUDGMENT 1. - These two Civil First Appeals Nos. 40 of 1973 and 64 of 1973 are directed against one common judgment dated September 4, 1972 of District Judge, Kota in Civil Suits Nos. 16 of 1967 and 17 of 1967. 2. The plaintiffs in both the suits are licencees for retail sale of country liquor. They have got their shops in municipal limits of Kota. The Warehouse is located within the municipal limits of Kota. The plaintiffs take liquor from the Warehouse inside the city of Kota. The Municipal Council, Kota, used to realise control duty from these licencees when they take liquor from the Ware house. 3. In suit No. 16 of 1967. The plaintiff paid Rs. 17,320.89 as octroi duty for the period April 1, 1964 to March 31, 1965. In suit No. 17 of 1967, the amount paid by way of octroi duty from April 1, 1965 to March 31, 1966 is Rs. 23,875.89. 4. In both the above suits the Municipality has admitted the realisation of this octroi duty. 5. The case of the plaintiffs was that since they were not begging any goods within the municipal limits, no octroi duty can be charged from them, because they were purchasing liquor from the warehouse located within the municipal limits of Kota. 6. The common question that was raised on behalf of he Municipality was that the liquor was kept in deposit in the Warehouses; that the Government was not selling it from the Warehouses to any retailers but only to the licences on paying the excise duty; that formerly the Excise Department realised the octroi duty and paid it to the Municipality. Thereafter an order was passed by the Government by which it was ordered that the octroi duty was to be paid by the licencee directly and therefore, the octroi posts were installed near the Ware against judgment & decree dated 4-9-72 passed by Shri Umrao Chand Mehta. D.J. Kota in C.S. Nos. 1 & 17/67. houses and the amount was realised before the licensees could get the liquor from the said Warehouses after paying the excise duty, it was them contended that what was realised by the Municipality was in accordance with law and the suit was not maintainable. It was further alleged that the suit was barred under the Rajasthan Municipalities Act, 1959. 7. houses and the amount was realised before the licensees could get the liquor from the said Warehouses after paying the excise duty, it was them contended that what was realised by the Municipality was in accordance with law and the suit was not maintainable. It was further alleged that the suit was barred under the Rajasthan Municipalities Act, 1959. 7. Issues were framed in each of the suits as under:--Suit No. 16 of 1967 : 1. Whether a sum of Rs. 17,320.89 P. was realised as octroi duty on liquor from the plaintiff ? 2. Whether the octroi duty realised from the plaintiff was illegal and the plaintiff is entitled to the recovery of the same ? 3. Is the suit time barred ? 4. Is the suit barred by the Rajasthan Municipalities Act ? 5. Whether the plaintiff had the right to realise octroi duty from the consumers ? 6. Relief ? Suit No. 17 of 1967 : 1. Whether the octroi duty was paid by the plaintiff under legal misconception and it was realised illegally by the defendant ? 2. Whether the plaintiffs paid a sum of Rs. 23,875.89 P. as octroi duty and is entitled to get it back ? 3. Relief ? 8. The principal question which requires adjudication in this case is whether even though the plaintiffs have not imported goods from outside within the municipal limits, yet the Municipal Council, Kota, was justified in realising octroi duty under Section 104 of the Rajasthan Municipalities Act, 1959, because the Warehouse was being maintained by the Excise Department for storing of the liquor and the liquor ultimately used to be sold to excise contractors. 9. Section 104 of the Rajasthan Municipalities Act, 1959 reads as under:- "104. 9. Section 104 of the Rajasthan Municipalities Act, 1959 reads as under:- "104. Obligatory taxes - (1) Every board shall levy at such rate and from such date as the State Government may in each case direct by notification in the official gazette and in such manner as is laid down in this Act and as may be provided in the rules made by the State Government in this behalf, the following taxes, namely: (1) a tax on the annual letting value of buildings or lands or both, situated within the municipality; (2) an octroi on goods and animals brought within the limits of the municipality for consumption use or sale therein; and (3) a tax on professions and vocations; Provided that:- (a) the tax under clause (I) shall not be levied- (i) on Kham Houses, or (ii) on buildings or lands or both, of which annual letting value is less than one hundred and eighty rupees. (b) the tax under clause (2) shall not be on a motor vehicle as defined in the Motor Vehicles Act, 1939 (Central Act IV of 1939) or any other mechanically propelled vehicle, and the tax under clause (3) shall not be levided on artisans : Provided further that, upon a representation made to it by and at the request of a board, the State Government, if it is satisfied that circumstances exist which sufficiently provide the justification for a board not to levy or to stop the levy of, any of the taxes mentioned in this section, may by special order published in the official Gazette, along with the reasons for making such order, permit the board not levy or to stop the levy of any such tax. (2) A direction under Sub-section (1) may provide for the levy of taxes on different rates in different municipalities having regard to their varying local conditions and needs and on the same considerations and by a like direction, that State Government may, from time to time, (i) vary uniformally or differently in relation to different Municipalities, the rates of taxes levied, or (ii) withdraw any tax levied by any Municipalities." 10. Obviously as per the plain and simple language of section 104 of the Rajasthan Municipalities Act the incidence of octroi duty is on goods and animals brought within the limits of municipality for consumption use or sale therein. Obviously as per the plain and simple language of section 104 of the Rajasthan Municipalities Act the incidence of octroi duty is on goods and animals brought within the limits of municipality for consumption use or sale therein. There is no dispute that it was the Excise Department or the Government which brought the liquor within the municipal limits for sale to the excise licencees, the excise licencees, therefore, did not import the goods, nor they brought the goods within the limits of the municipality. Contrary to it they brought the liquor from the Warehouse, which is located within the municipal limits and not from outside the municipal limits of Kota. 11. The trial court relied upon judgment of the High Court in (1) Morson Mal v. Municipal Board Jhalawar, S.B. Civil Writ Petition No 1712 of 1964, decided on February 2, 1967 and another judge appellant of Hon'ble Mr. Justice Shri Kan Singh in 16 writ petitions decided on December 18, 1969. 12. Before this Court Mr. Mathur has pointed out that as per the judgment of this Court in (2) The State of Rajasthan v. Nagar Palika, Jhalawar & Anr., (1974 W L.N. (U C ) 767) the finding and judgment of the trial Court stands vitiated, because the levy imposed must be from the Excise licencees under: 13. In the above mentioned case the relevant observations are as:- "The liquor brought within the Municipal limits during the relevant period was the property of the State of Rajasthan and that Ganganagar Sugar Mills carried it to the warehouse at Jhalawar at the instance and at the directions of the Excise Dept. as a mere carrier. The liquor so brought within Municipal limits of Jhalawar was admittedly sold to the licence-holders by the State of Rajasthan and the entire sale-price was collected by the State of Rajasthan." 14. In my opinion the above judgment instead of supporting the contention of the appellants clearly shows that the incidence of the octroi on the goods brought in the municipal limits by the State of Rajasthan and kept in the ware-house, would be on the Excise Department. The Excise Department sold the above liquor to the licence-holders as in the present case. The Nagar Palika, Jhalawar realised the octroi duty from the State of Rajasthan. The Excise Department sold the above liquor to the licence-holders as in the present case. The Nagar Palika, Jhalawar realised the octroi duty from the State of Rajasthan. The State of Rajasthan filed writ petition, dismissing the writ petition Hon'ble Mr, Justice S.N. Modi observed that the liability to pay octroi duty created under Section 104 of tho Rajasthan Municipalities Act, 1959 is on the person or authority who brings the goods within the municipal limits for consumption, use or sale. The relevant observations are as under: "This section makes it obligatory for Municipal Board to levy octroi duty on goods and animals brought within the limits of the municipalities for consumption, use or sale therein. But the rate at which and the date from which the duty has to be charged wilt be provided by a Government notification. The manner of collecting such duty has to be in accordance with the provisions of the Act and rules made by the State Government. Thus it is bringing in of the goods and animals for consumption use or sale within the municipal limits which attracts the indigence of octroi duty. In other words, it is the person who brings the goods or animals within the municipal limits for the purpose of consumption, use or sale, is liable to pay octroi duty. In the present case, it is admitted that the warehouse for storing liquor is situated within the municipal area of Jhalaw are It is further not in dispute that during the relevant period the liquor was brought to the warehouse at Jhalawar in the trucks of Ganganagar Sugar Mills and further that the liquor so brought was sold by the Excise Department to the licence-holders. It is argued on behalf of the State that since the liquor was brought by Ganganagar Sugar Mills within the municipal area of Jhalawar, the person liable to pay octroi duty is Ganganagar Mills. On the other hand, it is argued on behalf of Ganganagar Sugar Mills that the liquor was brought by it merely as a carrier on behalf of the Excise Department, under a contract sanctioned by the State Government. It is further contended that the liquor so brought was the property of the Excise Department which got it manufactured under its directions and supervision at Ganganagar Sugar Mills. It is further contended that the liquor so brought was the property of the Excise Department which got it manufactured under its directions and supervision at Ganganagar Sugar Mills. In my opinion, The contention of the state of Rajasthan cannot be accepted as correct. The evidence on the record show- that Ganganagar Sugar Mills manufactures country liquor under the licence issued by the Excise Department solely for the use of the State Government. The entire quantity of liquor manufactured by Ganganagar Sugar Mills is the property of the State of Rajasthan and Ganganaizar Sugar Mills merely gets the manufacturing costs from the State at the direction and on behalf of the Excise Department and Ganganagar Sugar Mills only acts as a carrier and the liquor so carried is stored in the warehouse belonging to the State of Rajasthan at the issue price fixed by the Excise Department. The licence-holders first deposit the amount in the treasury and then apply to the Excise Department for grant of permit and on issue of permit, they obtain liquor from the warehouse. During the relevant period, Ganganagar Sugar Mills carried the liquor to the warehouse at Jhalawar under the directions of the Excise Department and in pursuance of the contract Ex. A/1 sanctioned by the State Government. All these facts are amply proved by the testimony of the defendant's own witnesses, namely, DW 1 Kanhaivalal, an employee of Ganganagar Sugar Mills, DW 2 Shri Mahadevmal. Officer in charge of the Department concerned in these cases and DW 3 Ramswaroop an employee of Ganganagar Sugar Mills. The learned Adjirional District Judge has fully discussed the evidence of the witnesses and it is not challenge that the appraisement of the learned Additional District Judge is in any way incorrect. From the evidence, it follows that the liquor brought within the municipal limits during the relevant period was the property of the State of Rajasthan and that Ganganagar Sugar Mills carried it to the ware-house at Jhalawar at the instance and at the directions of the Excise Department as a mere carrier, the liquor so brought within the municipal limits of Jhalawar was admittedly sold to the licence-holders by the State of Rajasthan and the entire sale-price was collected by the State of Rajasthan. In view of the above facts, the real person who brought the liquor within the municipal limits of Jhalawar for purposes of sale was the State of Rajasthan and not Ganganagar Sugar Mills. The learned Additional District Judge was therefore right in fixing the liability for octroi duty on the State of Rajasthan." 15. Mr. Mathur, confronted with the above obvious legal position, submitted that the Municipal Council should not be made to suffer because the Excise contractors have realised the octroi from the consumers. In support of his contention he relied upon the judgment in (3) Parekh Automobiles & Ors. v. Municipal Council, Jodhpur and another 1977 W.L.N (UC) 137 , and (4) Venkatawarso v. Govt. of Andhra Pradesh, AIR 1966 SC 828 . 16. Obviously no one can be allowed to enrich by collection of the octroi duty and then claim refund on technical grounds. 17. In view of the above I inquired from Mr. Mathur as to whether the Municipal Council has proved that the octroi duty was realised from the consumers by the Excise contractors. Mr. Mathur frankly and fairly conceded that the Municipal Council, Kota has not led any evidence whatsoever for showing that the octroi duty was realised by the Excise contractors from the consumers. 18. It is unfortunate that in cases of public authorities or Corporations or autonomous bodies no care is taken to produce relevant evidence and even the just and proper plea which otherwise could have been accepted on the slightest evidence cannot be accepted because of complete absence of evidence. It is a pity that neither the officers of the Municipal Council, nor the persons who were incharge of the case produced even skeleton evidence to show that the octroi duty was realised from the consumers- 19. It further appears that before the trial Court this particular aspect of the case was not even pressed obviously because no evidence was led. In view of the above, in the absence of any evidence, whatsoever, it is not possible for this Court to hold that the octroi duty paid to the Municipal Council was realised from the consumers. 20. It is also unfortunate that even though this case relates to 1964-65, no effort was made by the Municipal Council or the Government for enacting validation law, so that the Municipal Council was not required to pay or refund the amount. 20. It is also unfortunate that even though this case relates to 1964-65, no effort was made by the Municipal Council or the Government for enacting validation law, so that the Municipal Council was not required to pay or refund the amount. Be that as it may, so far as this Court is concerned, it has got no option but to confirm the decree passed by the Trial Court. 21. No other point was argued by the learned counsel for the appellants. 22. Consequently both the appeals fail and are hereby dismissed. No one appears to oppose the appeals and therefore the parties are left to bear their own costs.Appeals Dismissed. *******