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2025 DIGILAW 420 (GUJ)

Movers & Co. Thro' Proprietor v. Gas Authority Of India

2025-06-10

SANGEETA K.VISHEN, SANJEEV J.THAKER

body2025
JUDGMENT : (PER : HONOURABLE MR.JUSTICE SANJEEV J.THAKER) 1. Since the captioned first appeals are arising out of the judgment and decree dated 13.12.2006 (hereinafter referred to as “the impugned judgment”) passed by the learned 2 nd Additional District Judge, Morbi, District Rajkot in Special Civil Suit no.86 of 2001 (hereinafter referred to as “the suit”), with the consent of the learned advocates appearing for the respective parties, both the appeals are decided and disposed of by this common CAV judgment. For the sake of convenience, the parties are referred to as per their original status in the suit. 1.1 First Appeal no.2521 of 2007, has been filed by the defendant no.2 challenging the impugned judgment whereby, the learned Judge, has while partly allowing the suit, ordered the plaintiff to recover from the defendant no.2 the amount of Octroi i.e. Rs.18,37,000/- (Rupees Eighteen Lakh Thirty Seven Thousand only) together with interest at the rate of 9% on Rs.18,37,000/- (Rupees Eighteen Lakh Thirty Seven Thousand only) from the date of institution of the suit till its realization, coupled with the further amount of Rs.5,001/- (Rupees Five Thousand One only) towards the amount of notice charges. While First Appeal no.4567 of 2007, is filed by the plaintiff challenging the impugned judgment insofar as, the learned Judge has disallowed the amount of penalty i.e. Rs.1,83,70,000/- (Rupees One Crore Eighty Three Lakh Seventy Thousand only). Hence, the captioned appeals. 2. The brief facts, in nutshell, are as under:- 2.1 The issue involved in the suit was that the plaintiff company was appointed octroi Ijardar from the period between 01.04.2000 to 31.03.2001 and was granted right to recover octroi for octroi limits of Maliya-Miyana Gram Panchayat. It was the case of the plaintiff that the plaintiff was entitled to charge octori duty on all goods which enter the Octroi limits of Maliya-Miyana Panchayat area for the consumption, use or sale. It was the case of the plaintiff that defendant no.2 was installing the pipeline from Kandla to Loni as a contractor of defendant no.1 and the material for the above said purpose was brought to the local limits of village: Maliya on or about April, 2000 and, therefore, the plaintiff had demanded the bills of the said goods for the purpose of ascertaining the amount of octroi. However, the defendants neither produced the bills nor exemption certificate. However, the defendants neither produced the bills nor exemption certificate. It is the case of the plaintiff before the trial Court that the defendant approached the police authority and with their aid, they got released the goods from the custody of the plaintiff. The plaintiff, therefore, filed the suit for recovery of amount of Rs.2,02,12,001/- (Rupees Two Crores Two Lakhs and Twelve Thousand One only) being the amount of octroi, penalty and notice charges with costs at running interest @ 12% from the date of suit till realisation of the said amount. 2.2 Upon service of the summons to the defendants, the defendant No.2 appeared and filed written statement vide Exh.20. It is the case of the defendant no.2 that the plaintiff has miserably failed to give the exact date on which goods entered the village. While it is the case of defendant No.2 that pipes and allied machinery entered before 31.03.2000 and the work known as stringing was completed before 31.03.2000 and that installation work was started on 08.03.2000 and was completed on 16.03.2000. Moreover, it is the case of defendant in the written statement that none of the goods / machineries have entered within the limits and that the whole Gram Panchayat local limits cannot be said to be octroi limit of Village Maliya-Miyana. It is the case of the defendant No.2 that the goods were brought outside the octroi-naka and there was no octroi-naka in the area of Maliya. The Gram Panchayat of Maliya village passed the Resolution No.22/97 to include other larger areas of Gram Panchayat to enlarge the octroi limit but the said Resolution was not implemented. The defendant No.2 has also taken a contention in the written statement that no fixed date is mentioned as to when the goods entered the octroi limit and the fact that the goods have ever entered inside the octroi limit as it is the case of the defendant no.2 that the goods have never entered the octroi limit. 2.3 The following issues were framed by the trial Court vide Exh.27: “1) Whether the plaintiff proves that he is entitled to charge octroi duty on the goods brought by defendants within the local limits of Village Maliya Miyana ? 2) Whether the plaintiff is entitled to charge penalty as alleged in the plaint ? 3) Whether this court has having jurisdiction to entertain the present suit ? 2) Whether the plaintiff is entitled to charge penalty as alleged in the plaint ? 3) Whether this court has having jurisdiction to entertain the present suit ? 4) Whether plaintiff’s suit is bad for non joinder of parties ? 5) Whether the defendant no.1 proves that if there is any liability of octroi, then it is of the defendant no.2 ? 6) Whether plaintiff is entitled to claim relief as prayed for? 7) What is found due against the defendants ? If yes, against whom ? 8) What order and decree ?” 2.4 The plaintiffs and defendants have produced their evidence which are as under: Sr. No. Exh. Particulars 1 41 Deposition of Mr.A.A.Mover 2 42 Authentic xerox copy of DDO, Rajkot letter 3 43 Office copy of notice given to defendant no.1 4 44 Postal acknowledgment slip 5 45 Office copy of notice given to defendant no.2 6 46 Postal acknowledgment receipt 7 54 Deposition of Hasmukh Nagarbhai 8 58 True copy of map of Malia Gram Panchayat in Part-I 9 59 True copy of map of Malia Gram Panchayat in Part-II 10 60 Letter dated 23.02.2004 by DDO, Rajkot 11 61 Closing pursis 12 72 Deposition of B.K.Singh on behalf of defendant no.1 13 76,7 7,78 Written contract with relating papers 14 92 Deposition of Mr.K.D.Mehta on behalf of defendant no.2 15 103 Deposition of PSI Mr.S.N.Jhala 16 104 Xerox copy of letter of T.D.O. 17 105 Xerox copy of letter of D.D.O. 18 117 Deposition of Shantilal K. Tandel, T.D.O. of Maliya 19 118 Letter of T.D.O. Maliya 20 120 Closing pursis 2.5 Before going through the oral evidence of the parties in the suit, this Court has gone through the order dated 02.08.2000 passed by this Court in Special Civil Application No.5121 of 2000 filed by the plaintiff raising grievance that defendant no.2 is laying pipeline within the octroi limit and for that purpose he has importing goods within the octroi limits, however, defendant no.2 is not paying any octroi on the same and that Gram Panchayat also does not take action against defendant no.2 for non-payment of octroi. In the said petition, the contention was taken by defendant no.2 that the octroi limits were originally fixed on 15.02.1956 and thereafter Gram Panchayat has sought to extend the octroi limits but the said extension has not been approved by the District Development Officer and it was argued by defendant no.2 in the said proceedings that though Panchayat has to decide the location of octroi-naka and to fix the octroi limits, the same cannot be done without the approval of District Development Officer and in absence of any approval by the District Development Officer, Gram Panchayat Resolution No.22/1997 for extension of octroi limits cannot be said to have come into force and, therefore, defendant no.2 is not liable to pay octroi. 2.6 In the said writ petition, looking at the controversy with respect to octroi limit and whether the goods are being imported by defendant no.2 within octroi limit of Maliya-Miyana Gram Panchayat and whether the extension proposed by Gram Panchayat as per Resolution No.22/1997 is required to be approved or not, it was held in paragraph 4 of the order as under: “4. In view of the above controversy between the parties, it would be just and proper to direct and it is directed accordingly that the petitioner shall join the District Development Officer, Rajkot District Panchayat, Rajkot as party respondent No.4 and the said respondent shall decide the controversy between the parties, more particularly, whether the goods are being imported by respondent No.2 within the octroi limits of Maliya(M) Gram Panchayat and whether the extension proposed by the Gram Panchayat as per resolution No.22/97 is required to be approved or not. All these aspects shall be considered by the District Development Officer and a decision thereon shall be taken within one month from the date of receipt of the writ of this Court or a certified copy of this order, whichever is earlier. The parties including the Gram Panchayat, respondent Nos 2 & 3 and the petitioner shall act in accordance with such decision.” 2.7 Therefore, District Development Officer was directed to decide whether the goods are being imported by the defendant no.2 within the octroi limits of Maliya Gram Panchayat and whether the extension proposed by Gram Panchayat as per Resolution No.22/1997 is required to be approved or not. The Court directed that all these aspects shall be considered by the District Development Officer and a decision thereon shall be taken within one month. It has also been observed in the said order that the parties including the Gram Panchayat – Respondent No.2 and 3 and the petitioner shall act in accordance with the decision. Therefore, it was directed that the District Development Officer shall decide on the aspect whether the goods are imported within the octroi limit and all the parties have to act in accordance with the decision that may be taken by the District Development Officer. 2.8 Thereafter, the District Development Officer has given his opinion dated 19.02.2001 (Exh.42) whereby he has stated that the place where pipeline is passing is within old octroi limit and is within the Maliya-Miyana Gram Panchayat and that the same is not within the proposed outer limit of octroi. After the order of this Court on 02.08.2000, the plaintiff had issued notices [Exhs.43 and 45] to the defendants. Notice at Exh.43 has been given to Gas Authority of India and notice at Exh.45 has been sent by the plaintiff through his advocate to Larsen and Turbo i.e. defendant no.2 wherein the plaintiff has sought an amount of Rs.2,02,12,001/- (Rupees Two Crores Two Lakhs and Twelve Thousand One only). The said notice has been replied by defendant no.2 vide Exh.46. 2.9 The trial Court, after examining the witnesses so also the documents on record, vide impugned judgment, partly decreed the suit in favour of the plaintiff. Hence, defendant no.2 filed the First Appeal No.2521 of 2007 for quashing and setting aside the judgment and decree dated 13.12.2006 passed by the learned 2 nd Additional Senior Civil Judge, Morbi Dist.Rajkot in Special Civil Suit No.86 of 2001 whereas the plaintiff had filed First Appeal No.4567 of 2007 for the amount of penalty and enhancement of rate of interest 12% p.a. instead of 9% awarded by the trial Court. 3. Mr R.S. Sanjanwala, learned Senior Counsel submitted that the plaintiff, could not provide the computation of the octroi amount, the details as to when the goods were entered during the contract period. In absence of any evidence, the learned Judge, could not have accepted the claim of the plaintiff and allowed the suit. 3. Mr R.S. Sanjanwala, learned Senior Counsel submitted that the plaintiff, could not provide the computation of the octroi amount, the details as to when the goods were entered during the contract period. In absence of any evidence, the learned Judge, could not have accepted the claim of the plaintiff and allowed the suit. The plaintiff though has claimed an amount of Rs.18,37,000/- to be recovered from the defendant no.2 as octroi, there is no clarity as to how the amount has been arrived at except vaguely referring it in the plaint. In the entire plaint, no particulars are provided, much less any details as to when, how and where the goods were entered. It is submitted that there is no evidence or averments made that the goods were entered during the Ijara period. It is submitted that if the plaintiff has laid the claim, it has to lead evidence and there cannot be a claim of any random amount without any basis that can be demanded by the plaintiff. Therefore, the learned Judge without any justification and in absence of any documentary as well as oral evidence, could not have decreed the suit. 3.1 It is further submitted that in past, the plaintiff had preferred a writ petition before this Court and this Court, was kind enough to dispose of the petition, by passing an order dated 02.08.2000, directing the District Development Office to take a decision in the matters as indicated in paragraph 4. The order dated 02.08.2000, passed by this Court, directed the District Development Officer to take a decision, was just an arrangement worked out so as to amicably resolve the issue. The District Development Officer, instead of resolving the issue, went beyond the direction by observing that the goods have entered within the existing limit. It is further submitted that the sole basis on which the claim is allowed, is the letter/opinion dated 19.02.2001 of the District Development Officer produced at Exh.42. Neither the District Development Officer a party nor was examined and the opinion has been simply accepted and the version was believed that the goods had entered the octroi limit of Maliya gram panchayat. Neither the order of the District Development Officer qualifies the amount of octroi nor the date of import. Neither the District Development Officer a party nor was examined and the opinion has been simply accepted and the version was believed that the goods had entered the octroi limit of Maliya gram panchayat. Neither the order of the District Development Officer qualifies the amount of octroi nor the date of import. It was a specific case of the defendant no.2 that the opinion of the District Development Officer, cannot be relied upon, as he has no authority to adjudicate. 3.2 It is further submitted that prior to the filing of the suit, the plaintiff had issued a notice dated 16.07.2001 and produced at Exh.45, even in the notice dated 16.07.2001 – Exh.45, there is nothing to indicate about the computation or the basis for claiming the amount of Rs.18,37,000/-. The notice was replied to by the defendant no.2 on 18.08.2001 – Exh.46, disputing the value of the goods; rate on which the octroi has been levied by the plaintiff. It is stand taken by the defendant that there is nothing on record to substantiate that the goods entered in the month of April. Even the plaintiff has been unable to indicate when the goods entered the octroi limit of Maliya Miyana except casually mentioning that the goods entered on or about April 2000. No precise date has been indicated. It is a specific case of the defendant no.2 that the goods entered the gram panchayat limit in the month of March. 3.3 While referring to the reply affidavit of the respondent no.2 – Exh.20 filed in the suit, it is submitted that if there were Nakas determined and the goods were restrained, the plaintiff could have given the definite date of entering of the goods. In the reply, there is a specific reference of the proceedings before this Court and the objection regarding non-joining of the District Development Officer as a party respondent. The respondent, had also taken a specific stand that there was no direction issued by the High Court, directing the defendant to pay the octroi and in absence of any direction, the claim of the plaintiff of penalty, is misconceived. The respondent, had also taken a specific stand that there was no direction issued by the High Court, directing the defendant to pay the octroi and in absence of any direction, the claim of the plaintiff of penalty, is misconceived. 3.4 It is further submitted that even the defendant no.1 has filed his response, inter alia, raising the contention about lack of clarity on the part of the plaintiff as to when the goods entered the village, more particularly when the plaintiff in the proceedings before the High Court has admitted that there were two Nakas and when there were Nakas available and the goods were restrained, the plaintiff would be definitely in a position to indicate the details. It is submitted that even the contention was raised about the octroi limit and its extension and absence of final approval by the concerned authority. 3.5 It is further submitted that the plaintiff has also in his evidence – Exh.41, admitted that the plaintiff has not produced any document about the extension of the octroi limit; the date when the line was installed etc. Even the amount is not mentioned. The plaintiff is not clear about the octroi limit and has not produced any evidence; also, no knowledge about the extension of the limit. It is submitted that if there were no documents produced, the plaintiff could have requested the Court to call upon the defendant to produce the document as per the provisions of the Code. However, no attempt was put by the plaintiff except stating that on or around the year 2000, the pipeline is installed. 3.6 It is further submitted that the Talati was also examined at Exh.54 who, in his evidence has made a reference of the contract awarded to the plaintiff and right to collect the octroi. Except stating that the pipeline has entered in the sim of village, no further details have been provided regarding the computation of the octroi, the goods etc. The Talati-cum-Mantri was examined; however, the evidence is without any supporting material. It is further submitted that whereas the defendant no.1 was examined at Exh.72; however, nothing adverse or contrary comes out from his evidence. It is submitted that the learned Judge has completely ignored the evidence of the Police Sub-Inspector. The Talati-cum-Mantri was examined; however, the evidence is without any supporting material. It is further submitted that whereas the defendant no.1 was examined at Exh.72; however, nothing adverse or contrary comes out from his evidence. It is submitted that the learned Judge has completely ignored the evidence of the Police Sub-Inspector. It is submitted that the Taluka Development Officer, was examined who, has stated that there is no record available with his Office regarding the extension of the octroi limit. It is submitted that the village limit and the octroi limit, cannot be necessarily the same. Whether the goods have entered within the original octroi limit or not, the evidence could have come from the District Development Office who, was neither joined nor summoned as a witness. While concluding, it is submitted that in absence of any conclusive evidence that the pipeline is within the original octroi limit, the learned Judge, could not have simply decreed the suit. 4. Mr Kiran S.Panchal, learned advocate for the plaintiff has argued that the suit is filed for recovery of payment of octroi and Appeal No.4567 of 2007 has been filed by the original plaintiff for recovery of penalty charges and enhancement of rate of interest. It is the case of the plaintiff that defendant no.1 was laying pipeline from Jamnagar to Loni in UP and that within the limits of village:Maliya and for that purpose defendant no.2, who was contractor of defendant no.1, had brought certain goods within limits of village Maliya-Miyana and the plaintiff had demanded amount of octroi from the agents of defendant no.2 and defendant no.2 denied to pay any octroi and did not produce any exemption certificate and it is the case of the plaintiff that with the help of police defendant no.2 took away goods without paying any octroi and thereafter plaintiff was constrained to file present suit. The original plaintiff relied upon the oral and documentary evidence and stated that in the deposition of defendant no.2 at Exh.92 though the bills of the goods were asked for in cross-examination and though the plaintiff, in his cross-examination, stated that he will produce the said bills, the same were not produced and that it was within special knowledge of defendant no.2 that how much goods were brought in local limits of Village:Maliya-Miyana the same having not produced, adverse inference will have to be drawn against the defendant no.2. Learned advocate for the plaintiff submitted that when goods entered the octroi limit, the plaintiff demanded for octroi charges and at that point of time, defendant no.2 agent stated that as the same are exempted defendant no.2 shall not pay any octroi and defendant no.2 with the help of police Officer forcibly took away goods and, therefore, the plaintiff was constrained to file Special Civil Application No. No.5121 of 2000. The system of collecting octroi according to plaintiff is on the production of bills of the goods, octroi charge is levied on the party. 4.1 Learned advocate for the plaintiff submitted that plaintiff is entitled for penalty as the octroi amount has not been received by the plaintiff and the plaintiff is entitled for the amount of Rs.18,37,000/- (Rupees Eighteen Lakhs Thirty Seven Thousand Only) as the said fact of computation of amount of Rs.18,37,000/- (Rupees Eighteen Lakhs Thirty Seven Thousand Only) has not been denied and opposed by the defendant in their written statement Exh.20. Morever, the plaintiff has argued that he has relied upon his oral evidence, letter of DDO vide Exh.42, his notice vide Exh.45 that he is entitled for an amount of Rs.18,37,000/- (Rupees Eighteen Lakhs Thirty Seven Thousand Only) with respect to the goods having entered the octroi limit, the plaintiff relies on Exh.42 i.e. opinion of the DDO which clearly states that the goods had entered the old octroi limit of Maliya-Miyana and, therefore, the said fact is proved beyond doubt that the goods had entered the old octroi limit and the question extended limit and that the DDO not giving any findings on the extended octroi limit does not arise as the goods had entered the old original octroi limit as stated in the year 1956. With respect to date of entry, the plaintiff states that the defendant had to produce bills of goods to establish the exact date of entry and the burden was on the defendant to produce the same and defendant no.2 having failed to produce the same adverse inference will have to be drawn as to the date on which the goods had entered octroi limit. 5. 5. Mr Rashesh Sanjanwala, learned Senior Advocate, in rejoinder, has argued that there are only four aspects which needs to be considered and established i.e. the date of goods having entered octroi limit of Maliya-Miyana village, the route of pipeline and what part of the same passes through octroi limit, value of goods and rate on which computation of octroi levied had been charged and according to Mr Sanjanwala, learned Senior Advocate the plaintiff has not proved any of the above aspects. Learned Senior Advocate for the defendant no.2 has brought to the notice of this Court the issues which are framed vide Exh.27 and contended that it is the case of the defendant no.2 that the plaintiff has miserably failed to prove that the goods have entered the octroi limits of Maliya Gram Panchayat. It is also the case of the defendant no.2 that the plaintiff has not justified as to how an amount of Rs.18,37,000/- (Rupees Eighteen Lakhs Thirty Seven Thousand Only) is due and payable by the defendants for the octroi charges. There is no justification as regards the value of the goods and / or the exact date on which the said goods entered octroi limits of Village Maliya and the burden was on the plaintiff to prove the value of the goods, the date on which the goods entered the octroi limit of Village:Maliya, the applicable rate at which the goods valued for octroi and the plaintiff has only proved that the goods have entered the limits of octroi by way of report submitted by the District Development Officer produced vide Exh.42. It has been argued that the District Development Officer has not been examined nor the plaintiff proved by documentary evidence as to how the District Development Officer has come to the conclusion that the goods have entered the octroi limits of Maliya Miyana. It has been argued that the District Development Officer has not been examined nor the plaintiff proved by documentary evidence as to how the District Development Officer has come to the conclusion that the goods have entered the octroi limits of Maliya Miyana. 5.1 Learned senior counsel for the defendant no.2 has brought to the notice of this Court the plaint, more particularly para:3 of the plaint wherein it has been mentioned that the goods have entered local limits of Village: Maliya-Miyana on or about April, 2000 and, therefore, it has been argued that the plaintiff has not given the exact date on which the goods have entered the octroi limit of Village:Maliya-Miyana and there being different octroi-naka in Gram Panchayat, the plaintiff should have given the exact date on which the said goods entered the octroi limit of Village:Maliya-Miyana. It is also the case of the defendant no.2 that no evidence has been produced by the plaintiff to substantiate the claim that the goods have entered the octroi limits of Village:Maliya Miyana between 01.04.2000 to 31.03.2001. The defendant in the written statement vide Exh.20 has specifically contended that the pipes and allied machineries have never entered the old octroi limits of Village:Maliya-Miyana and the said goods have entered only the limits of Maliya Gram Panchayat before 31.03.2000 and the work known as stringing had completed before 31.03.2000 and the installation work was started on 08.03.2000 and was completed on 16.03.2000 much before the period for which the plaintiff was delegated as Octroi Ijardar by Maliya-Miyana Gram Panchayat. 6. Heard the learned counsel and learned advocates appearing for the respective parties in the respective appeals. Considered the record & proceedings, so also the paper-book made available on the record. Having heard the learned advocates in the respective appeals and the controversy involved, the following points for determination arise. First Appeal no.2521 of 2007: (i) Whether the learned Judge, was right in allowing the suit despite the fact that the original plaintiff has not proved that the goods had entered the octroi limit during the period from 01.04.2000 to 31.03.2001 i.e. the period for which the contract of collecting the octroi was awarded to the plaintiff? (ii) Whether in absence of any basis provided by the plaintiff for claiming an amount of Rs.18,37,000/- (Rupees Eighteen Lakh Thirty Seven Thousand only) towards the octroi, the learned Judge could have accepted the claim? (ii) Whether in absence of any basis provided by the plaintiff for claiming an amount of Rs.18,37,000/- (Rupees Eighteen Lakh Thirty Seven Thousand only) towards the octroi, the learned Judge could have accepted the claim? First Appeal no.4567 of 2007: (i) Whether the plaintiff proves that plaintiff is entitled to amount of penalty of Rs.1,83,70,000/- (Rupees One Crore Eighty Three Lakh Seventy Thousand only)? And (ii) Whether the plaintiff is entitled for rate of interest at the rate of 12% p.a. instead of 9% p.a.? 7. For deciding the above-referred issues, following discussion would be necessitated covering the facts and law. 8. The plaintiff has filed the suit claiming an amount of Rs.18,37,000/- (Rupees Eighteen Lakh Thirty Seven Thousand only) towards octroi and penalty of Rs.1,83,70,000/- (Rupees One Crore Eighty Three Lakh Seventy Thousand only) for failing to pay the octroi and notice charges of Rs.5,001/- (Rupees Five Thousand One only). The total amount claimed by the plaintiff is Rs.2,02,12,001/- (Rupees Two Crore Two Lakh Twelve Thousand and One only) together with interest at the rate of 12% from the date of filing of the suit till its realization. 9. For considering the controversy, the averments and the claim of the plaintiff are worth referring to. Paragraphs 1 to 12 of the plaint, read thus: “(1)... That the Plaintiff company was Octroi Ijaradar for the period commencing from 1-4-2000 to 31-3-2001. By virtue of this Ijara granted by Maliya-Miyana Gram Panchayat to the Plaintiff Company, the Plaintiff was entitled to charge the Octroi duty on all goods that enter into Panchayat area for consumption, use or sale therein. (2)... That it is say of the plaintiff company that defendant no. (1) is installing a pipeline from Kandla (Gujarat) to Loni (U.P.), and the defendant no. (2) is installing the said pipeline as Contractor of defendant no. (1). (3)... It is submitted that the said pipeline passes through the Village of Maliya-Miyana. And hence the defendant no. (2), the agent and contractor of defendant no. (1) brought pipes electrical goods, wires and other material for installation of pipelines in the limits of Village Maliya-Miyana for the purpose of setting up pipe line. That the material for th abovesaid purpose was brought into the local limits of the Village Maliya-Miyana on or about April, 2000. (4)... (2), the agent and contractor of defendant no. (1) brought pipes electrical goods, wires and other material for installation of pipelines in the limits of Village Maliya-Miyana for the purpose of setting up pipe line. That the material for th abovesaid purpose was brought into the local limits of the Village Maliya-Miyana on or about April, 2000. (4)... That the plaintiff being Ijaradar lawfully authorised to collect the Octroi demanded for the bills of the goods broug into the local limits of Maliya-Miyana Village for the purpose of ascertaining the amount of Octroi but at the relevant sine, the officers and agents of the defendant did not produce the bills and claimed for exemption of Oct: of, but failed to produce any document showing the exemption, and hence plaintiff consficated the said goods. But the defendant instead of paying any octroi, approached the police authorities and with their aid released the goods from the custody of the plaintiff. (5)... That therefore, plaintiff made represen- tation to the Gram Panchayat and to the District Collector, bit in vain. Therefore the plaintiff approached the Honourable High Court of Gujarat by filing Secial Civil Application No. 5121/2000 against the Gran Panchayat and the defendants foz issuing appropriate writ for the recovery of the amount of the Octroi. The defendant no. (2) appeared in the Special Civil Application No. 5121/2000 and contended that goods were not brought into the Octroiable limit. Therefore, the Honourable High Court passed an oral order dated 2--8-2000 directing the District Development Officer, Rajkot District Panchayat to decide the controversy regarding the Octroi limits of Maliya-Miyana Village Panchayat. It was also directed by Honourable Court that the parties shall act in accordance with the decision of District Development Officer, Rajkot. That the District Development Officer, Rajkot has opined and resolved the controversy by his decision dated 19--2--2001, wherein the District Development Officer has opined that the goods are brought into the local limits of the Gram Panchayat. (6)... That inspite of the clear directions of the Honourable High Court, the defendant have failed to pay the amount of Octroi. And hence the plaintiff is entitled to charge the penalty which is ten times the amount of octroi. (7)... That the plaintiff issued a notice through its advocate to the defendants on 16--7--2001 and on 20--7-2001 which have been duly received by both the defendants. The defendant no. And hence the plaintiff is entitled to charge the penalty which is ten times the amount of octroi. (7)... That the plaintiff issued a notice through its advocate to the defendants on 16--7--2001 and on 20--7-2001 which have been duly received by both the defendants. The defendant no. (2) has given evaisive reply while the defendant No. (1) has not given any reply. (8)... That the cause of action arose on or about April, 2000 when the defendant brought Octroiable goods in the local limits of Village Maliya-Miyana, and inspite of plaintiff's demand to pay up the Octroi the defendant have 8.0. neglected to pay the Octroi and on 16-7-2001 and 20-7-2001 when the plaintiff served a notice through its advocate. (9).. That Cause of action of this suit arose within the local limits of this Honourable Court and hence this Honourable Court has jurisdiction to entertain the present suit. (10)... That this suit is filed within the period of Limitation as prescribed by the Indian EVIDENCE ACT . (11)... That the suit is valued at Rs. 2,02,07,000/- for the purpose of jurisdiction, advocate fees and hence a Court fee of Rs. 15,000/- is affixed on the plaint. (12)... That therefore, the plaintiff prays that.- (a).. Rs---------------Ps. 18,37,000-00 1,83,70,000-00 5,001-00 the amount of Octroi. Penalty for failing to pay Octroi. Notice charges. in words Rupees Two Crore two lacs twelve thousand one only. 2,02,12,001-00 A decree of Rs. 2,02,12,001-00 be passed in favour of plaintiff and against the defendants with running interest at the rate of 12% from the date of suit till the realisationof the amount. (b)... Any other relief which deems fit and just be passed looking to the circumstances of the case. (c)... Costs of this suit be awarded to the plaintiff from the defendant.” The plaint, consists of 12 paragraphs. After stating about the plaintiff being an octroi ijaradar for the period from 01.04.2000 to 31.03.2001, it is the case of the plaintiff that he is entitled to collect the octroi on all the goods that enters into the panchayat area. Reference is made of the defendants of installing the pipelines in paragraphs 2 and 3. In paragraph 4, the plaintiff, has claimed that he is lawfully authorized to collect the octroi and resultantly, has demanded the bill for payment of octroi on goods but the defendants did not produce the same. Reference is made of the defendants of installing the pipelines in paragraphs 2 and 3. In paragraph 4, the plaintiff, has claimed that he is lawfully authorized to collect the octroi and resultantly, has demanded the bill for payment of octroi on goods but the defendants did not produce the same. In paragraph 5, reference is made of the representation to the panchayat and filing of the writ petition and passing of the order by this Court and the direction to the District Development Officer. In paragraph 6, the stand taken, is that despite the clear direction of the High Court, the defendants have failed to pay the octroi and hence, are liable to pay the penalty. Paragraph 7, is with respect to issuance of the notice and the response of the defendant no.2. Cause of action has been stated in paragraph 8 and 9. Paragraph 10, states about the suit being filed within the limitation and paragraph 11, is dealing with the jurisdiction. Bare perusal of the averments made in the plaint, suggest that no details worth the name, have been mentioned about the nature of the goods and when the goods were entered. 10. In the writ petition which was filed before this Court, the plaintiff has given narratives of the contract awarded to him in a public auction for the period of one year i.e. from 01.04.2000 to 31.03.2001. The fact of laying of the pipeline by the defendant nos.1 and 2 has also been stated. Averments are made to the effect that the plaintiff has demanded for the bills; however, the defendant no.2 did not produce the same. Stand, inter alia, is taken by the plaintiff that the plaintiff had agreed to pay an amount of Rs.7 lakhs to the gram panchayat as the plaintiff was aware that the plaintiff would be able to collect more amount of octroi from the defendant no.2. A brief idea, has been given by the plaintiff that the defendant no.2 and its officers have brought the goods worth more than Rs.3 Crores and on the above said amount, the defendant no.2, is required to pay an octroi of Rs.7,50,000/- (Rupees Seven Lakh Fifty Thousand only). The prayers in the writ petition was direction to the respondents to take appropriate legal action against the defendant no.2. The prayers in the writ petition was direction to the respondents to take appropriate legal action against the defendant no.2. Further direction to the defendant no.2 to deposit the amount of octroi with the panchayat with a further relief to deposit the amount of penalty and interest. Along with the Civil Application no.7382 of 2007 in First Appeal no.2527 of 2007, the defendant no.2 has placed on record the memo of the writ petition being Special Civil Application no.5121 of 2000 filed by the plaintiff before this Court. Paragraph 18, reads thus:- “18. The petitioner states that the Larsen & Toubro Ltd. and its officers have brought the goods worth more than Rs.3 crores and on the above said amount, approximately they are required to pay octroi of Rs.7,50,000/-.” Bare reading of the above-referred paragraph suggests that the claim of the plaintiff in the writ petition was only an amount of Rs.7,50,000/- on the alleged goods worth Rs.3 crore which, according to the plaintiff has entered the octroi limit. 11. The writ petition being Special Civil Application no.5121 of 2000 was filed and this Court, has disposed of the writ petition by passing an order dated 02.08.2000, which reads thus: “The petitioner is an octroi ijaradar who has been authorised by the Maliya (M) Gram Panchayat to collect octroi on the goods being imported within the octroi limits of Maliya (M) Gram Panchayat. The grievance in this petition is that respondent No.2 is laying pipeline within the octroi limits and for that purpose he is importing goods within the octroi limits, but respondent No.2 is not paying any octroi on the same and respondent No.1 Gram Panchayat does not take any action against respondent No.2 for nonpayment of octroi. The further grievance is that respondent No.3-PSI, Maliya (M) Police Station helps respondent No.2 and prevents the petitioner from collecting octroi from respondent No.2. 2. In response to the notice, the Upa-Sarpanch of Maliya (M) Gram Panchayat has filed affidavit-in-reply 22.6.2000 stating that the pipelines in question are passing through Ward Nos 12,13 and 18 and for laying the pipelines respondent No.2-Company has brought goods/material within the limits of Maliya Gram Panchayat. 3. 2. In response to the notice, the Upa-Sarpanch of Maliya (M) Gram Panchayat has filed affidavit-in-reply 22.6.2000 stating that the pipelines in question are passing through Ward Nos 12,13 and 18 and for laying the pipelines respondent No.2-Company has brought goods/material within the limits of Maliya Gram Panchayat. 3. However, on behalf of respondent No.2, affidavit-in-reply is filed by Mr.Ketan D.Mehta on 5.7.2000 contending that the octroi limits were originally fixed on 15.2.1956 and thereafter the Gram Panchayat had sought to extend the octroi limits but the said extension has not been approved by the District Development Officer. It is submitted that as per Rules under Gujarat Panchayat Act, 1961 though Panchayat has to decide the location of octroi nakas and to fix the octroi limits, the same can not be done without the approval of the District Development Officer and that in the absence of any approval by the District Development Officer, the Gram Panchayat Resolution No.22/97 for extension of octroi limits has not come into force and, therefore, respondent No.2 is not liable to pay any octroi. 4. In view of the above controversy between the parties, it would be just and proper to direct and it is directed accordingly that the petitioner shall join the District Development Officer, Rajkot District Panchayat, Rajkot as party respondent No.4 and the said respondent shall decide the controversy between the parties, more particularly, whether the goods are being imported by respondent No.2 within the octroi limits of Maliya(M) Gram Panchayat and whether the extension proposed by the Gram Panchayat as per resolution No.22/97 is required to be approved or not. All these aspects shall be considered by the District Development Officer and a decision thereon shall be taken within one month from the date of receipt of the writ of this Court or a certified copy of this order, whichever is earlier. The parties including the Gram Panchayat, respondent Nos 2 & 3 and the petitioner shall act in accordance with such decision. 5. The petition is accordingly disposed of in terms of aforesaid directions. Notice is discharged. There shall be no order as to costs.” 12. The parties including the Gram Panchayat, respondent Nos 2 & 3 and the petitioner shall act in accordance with such decision. 5. The petition is accordingly disposed of in terms of aforesaid directions. Notice is discharged. There shall be no order as to costs.” 12. In paragraph 4, this Court, while disposing of the writ petition, as aforestated, has directed the District Development Officer to take the decision whether the goods are being imported by the defendant no.2 and whether the extension proposed by the gram panchayat as per resolution no.22 of 1997 is required to be approved or not. The District Development Officer has addressed a communication dated 19.02.2001 – Exhibit 42, stating that he has verified the record and upon verification, it emerges that the place, is within the limit of the panchayat. The letter also states that the pipeline is in the old limit and not in the proposed new limit of octroi. 13. The plaintiff, has filed the examination-in-chief on affidavit – Exhibit 41, inter alia, stating that the plaintiff was octroi ijaradar for the period from 01.04.2000 to 31.03.2001 which entitled the plaintiff to charge the octroi on all goods that entered into the panchayat area for consumption, use or sale. It is the case of the plaintiff that the defendants were installing the pipeline from Kandla (Gujarat) to Loni (Uttar Pradesh) and the defendant no.2 was carrying out the installation as contractor of the defendant no.1. It is the further case of the plaintiff that the pipeline passes through the village of Maliya Miyana and as a result, the defendant no.2 has brought various goods for the purpose of laying the pipeline during the month of April 2000. Since the goods entered within the limit and the plaintiff was entitled to recover the octroi, the plaintiff demanded the details and other documents; however, the defendant no.2 chose not to produce either the details or any certificate exempting the defendant no.2 from payment of octroi. Though the defendant no.2 was supposed to pay the octroi but it chose to approach the police authorities and got the goods released from the custody of the plaintiff. Though the defendant no.2 was supposed to pay the octroi but it chose to approach the police authorities and got the goods released from the custody of the plaintiff. Stand is also taken that representation was made to the gram panchayat but since was not paid any heed, the writ petition was filed before this Court and vide order dated 02.08.2000, the District Development Officer, was directed to decide the issue, apropos which, the District Development Officer, issued a communication dated 19.02.2001 – Exhibit 42 opining that the goods are brought into the local limits of the gram panchayat. It is the case of the plaintiff that the plaintiff is therefore entitled the collect the octroi. Stand is also taken that there was a direction of the High Court to the defendant no.2 to pay the octroi but it failed to pay and hence, the plaintiff is entitled to charge the penalty ten times the amount of the octroi. Reference is made of the notices issued by the plaintiff to the defendant no.2 and it is alleged that the defendant no.2 has given evasive reply. 14. In the cross examination of the plaintiff, it is admitted that in the affidavit filed in the proceedings before the High Court, it is stated that the octroi limit was extended on 22.12.1997 and the pipeline is passing through the said extended limit. The plaintiff, in his cross examination, has admitted that he has not stated the exact date and time, when the pipeline was installed. The plaintiff has also admitted that he has not produced any evidence substantiating the octroi limit or its extension. After the year 1956, there was a resolution passed by the panchayat in the year 1979 extending the limit but, whether any order has been passed by the State Government approving the limit, he is not aware. Reference is also made of the order passed by the High Court and the direction to the District Development Officer. He has also admitted that no order has been passed by the High Court directing the defendant nos.1 and 2 to pay the octroi, except the direction to the District Development Officer to decide the limit. The plaintiff further admits that he has not mentioned the valuation of the goods on which the octroi is to be levied. He has also admitted that no order has been passed by the High Court directing the defendant nos.1 and 2 to pay the octroi, except the direction to the District Development Officer to decide the limit. The plaintiff further admits that he has not mentioned the valuation of the goods on which the octroi is to be levied. He has also stated that he has no clarity that the goods were within the octroi limit but is not sure as to it was within the limit of Maliya town or village sim. 15. Therefore, it is clear that the plaintiff, has not produced any evidence either oral or documentary substantiating that the goods, have entered the octroi limit. The plaintiff could not substantiate by leading any evidence of its claim for an amount of Rs.18,37,000/- (Rupees Eighteen Lakh Thirty Seven Thousand only). In the plaint, the claim is of Rs.18.37 lac, whereas, in the writ petition, the plaintiff has claiming an amount of Rs.7.50,000/-. It is the case of the plaintiff that for collecting the octroi, the points were earmarked and the plaintiff has installed the booths. When the booths were installed, the plaintiff could have produced the documentary evidence substantiating it with clarity when and how goods entered the octroi limit. When a party is claiming such a huge amount towards the octroi, it is incumbent upon the plaintiff with precision and in detail, to mention entering of the goods within the octroi limit. 16. The plaintiff has also given a notice dated 20.07.2001 – Exhibit 43 to the defendant no.1, requiring it to pay an amount of Rs.18,37,000/- and alleging that the defendant no.1 is neglected to pay an amount and demanded the penalty. In the said reply, except vaguely stating the factum of the contract for collecting the octroi for the period from 01.04.2000 to 31.03.2001 and simply referring the amount, nothing has been stated. Followed was the notice issued by the plaintiff dated 16.07.2001 where, there is not a whisper about the computation and the basis for arriving at such a huge claim towards octroi. Paragraphs 4 and 5 of the notice read thus:- “4. That, my client's octroi amount remain due from you Rs. 18,37,000/- (rupees eighteen lacs thirty seven thousand only) for pipe line of 7 Km. long in the jurisdiction of Malia-Miyana Grampanchayat. Paragraphs 4 and 5 of the notice read thus:- “4. That, my client's octroi amount remain due from you Rs. 18,37,000/- (rupees eighteen lacs thirty seven thousand only) for pipe line of 7 Km. long in the jurisdiction of Malia-Miyana Grampanchayat. Moreover you have been neglecting for to pay due amount of octroi by given accuses, so as per provision you have to pay Rs. 1,83,70,000/- (rupees one crore eighty three lacs seventy thousand only) thus total amount Rs.2,02,0700/- (rupees two crores two lacs seven thousand only) which is 10 th part more amount of original octroi amount. Note: For to receive said Octroi Amount from my client have filed writ petition No. 5121/2000 before Gujarat High Court, in this case you have taken defence of jurisdiction, thenafter Gujarat High Court informed to follow to the decision of Rajkot D.D.O. and then Rajkot D.D.O. decided that, my client has right to receive said Octroi Amount from you, which is in the limit of Malia-Miyana Grampancyayat. 5) In above circumstances you have no right to take defence & you are bound to pay my client's total due amount as legally, so you are informed by this last no that, you have to pay my client's octroi amount - Rs. 18,37,000/- as per rule the fine amount Rs.18370000/- their total amount Rs. 2,02,07,000/- (Two crores Two Lacs and Seven Thousand only) within 15 days from the receipt of this notice, if you fail to do so, my client will constrained to take legal actions against you & you will be liable & responsible for all cost and consequences or if you fail to do so, my client will constrained to take possession of all things & articles which you have spreaded on the land of Malia-Miyana Grampanchayat Sim, for the same you are only liable and responsible, which please take note seriously.” The defendant no.2 has filed his response vide reply dated 15.08.2001 – Exhibit 46, denying the allegations, so also the charge towards payment of the octroi. Specific stand was taken by the defendant no.2 that the plaintiff has failed to provide computation of the amount of Rs.18,37,000/- (Rupees Eighteen Lakh Thirty Seven Thousand only) and is not supported by any information. Specific stand was taken by the defendant no.2 that the plaintiff has failed to provide computation of the amount of Rs.18,37,000/- (Rupees Eighteen Lakh Thirty Seven Thousand only) and is not supported by any information. Paragraphs 4 to 6 of the response read thus:- “4) The notice under reply also fails to establish whether Octroi is leviable on us or any one else and to that extent there is no evidence, except assumption of liability arising on us. 5) The notice under reply in above context while indicating the alleged octroi due amount RS. 18,37,000/-, fails to provide the Computation of the said amount, as supported by the informations at your disposal. 6) The notice under reply at para 4 while mentioning about the decision of Rajkot DDO holding the right of your client in collecting octroi, fails to either submit the order copy of the said authority or any reference towards the same.” 17. The plaintiff, has also examined Shri Hasmukhbhai Nagarbhai, Talati – cum – Mantri at Exh.54. He has stated that he has produced the copies of the maps in two parts, i.e. Exhibits 58 and 59, which is signed by himself and the administrator. He has also stated that in the map the details as well as the octroi limit are reflected by different colours. In his cross-examination, the witness states that the map has been prepared by the Office of the District Inspector of Land Records but, the indication of pipeline and the octroi limit, he has done by the sketch-pen. He also admits that he is not an expert or has studied in connection with marking of the boundaries. As and when needed, marking has been done by the sketch-pen. In the cross-examination by the defendant no.2, he admits that near the Office of the panchayat, there was a booth for the purpose of collecting the octroi. Except that, he has not seen any other booth. He also states that the pipeline has been brought by the defendant no.2 which, is of 7 kms. long, but is invisible. The evidence of the Talati-cum-Mantri, does not substantiates the amount claimed by the plaintiff, except stating that the pipeline has entered the limit. Except that, he has not seen any other booth. He also states that the pipeline has been brought by the defendant no.2 which, is of 7 kms. long, but is invisible. The evidence of the Talati-cum-Mantri, does not substantiates the amount claimed by the plaintiff, except stating that the pipeline has entered the limit. In the map prepared by the Office of the District Inspector of Land Records, the witness, has done the marking by sketch-pen on its own without there being any supporting material placed on record in connection thereto. Besides, the evidence, Exhibit 60 of the plaintiff, does not reflect anything. 18. The defendant no.2, has given the deposition of one of the officers Mr B.K. Singh at Exhibit 72. He has denied the claim of the plaintiff. He has also raised the contention that the District Development Officer, Rajkot though was directed to take a decision, he has not been made a party to the suit and hence, the suit is barred by non-joinder of necessary party. Contention is also taken that the letter of the District Development Officer dated 19.02.2001, is not reliable and has been issued ex-parte, without any opportunity to the defendants, showing the limits of the octroi and the land through which the pipeline was passing. Stand, inter alia, is taken that the pipeline is passing at a distance of about 5 – 6 kms. from village Maliya and no octroi can be levied upon the goods, as the pipeline is passing beneath the land. He has stated about the laying of the pipelines and the route. 19. Authorized Officer Shri K. D. Mehta of the defendant no.2 was examined at Exhibit 92 and he has stated that they have carried out the work 10 kms. away from the Maliya Miyana village and they have not entered the town of Maliya. It is denied that technical persons were stopped by any authority of the gram panchayat or octroi ijaradar or the plaintiff. It is also denied that there was neither any octroi Office nor the naka karkoon. Specific stand is also taken that the High Court while disposing of the writ petition has not ordered payment of the octroi. In paragraph 4 of the examination-in- chief, on affidavit, reference is made of the proceedings of the writ petition being Special Civil Application no.5121 of 2000 and the stand taken therein by the plaintiff. Specific stand is also taken that the High Court while disposing of the writ petition has not ordered payment of the octroi. In paragraph 4 of the examination-in- chief, on affidavit, reference is made of the proceedings of the writ petition being Special Civil Application no.5121 of 2000 and the stand taken therein by the plaintiff. It is stated that the plaintiff in the rejoinder, has submitted that the panchayat has incorporated many survey numbers in the territorial limit of Maliya village and the passing of the resolution dated 22.12.1997 to give effect that the survey numbers are to be incorporated in the original octroi limit. There is a specific reference in the resolution that it shall come into effect after necessary permission from the concerned authority. It is also the stand taken that Taluka Development Officer in his letter dated 03.06.2000 – Exhibit 104 has categorically stated that the limit of octroi has not been extended after the year 1956 and that no procedure has been followed by the gram panchayat. 20. Moreover, the defendant no.2, has examined Police Sub- Inspector, Pardi at Exh.103, who has deposed that the goods of the defendant have not entered the town of Maliya in time and the pipeline, is beneath the earth, approximately 7 – 10 kms. away from the town of Maliya. He has also stated that there was no booth available. Furthermore, the Taluka Development Officer has been examined at Exh.117 who, in his deposition has stated that the city Iimit of Maliya, has not been extended. Therefore, from the oral as well as documentary evidences produced, there is not an iota of evidence to show that the goods have ever entered the octroi limits of Maliya-Miyana. Heavy reliance is placed on the communication/letter dated 19.02.2001 of the District Development Officer; however, he has not been examined. It is also not clear as to how and on what basis the District Development Officer has indicated the octroi limit and opined that the goods have entered the octroi limit. Assuming without concluding that the goods have entered, the fact remains that the plaintiff, has not proved as to what goods have entered, when the goods have entered, let alone by placing the notification prescribing the rates of octroi. Merely and vaguely indicating the amount of octroi, would not be sufficient to lay the claim. 21. Assuming without concluding that the goods have entered, the fact remains that the plaintiff, has not proved as to what goods have entered, when the goods have entered, let alone by placing the notification prescribing the rates of octroi. Merely and vaguely indicating the amount of octroi, would not be sufficient to lay the claim. 21. In the suit for recovery of the amount of octroi, it was for the plaintiff to prove the limit of octroi, the computation of the amount, rates, if any, the notification, the details of the time when the goods entered; satisfying the Court that the plaintiff in law and on facts, is entitled to claim the amount of octroi and that the recovery be directed. Initial burden was on the plaintiff which, the plaintiff has failed to discharge. Had the plaintiff discharged, the onus then would shift to the defendant to dislodge the claim. In the case on hand, the learned Judge, without requiring the plaintiff to discharge the initial burden, has straightaway referred to the provisions of Order VIII Rules 3 and 4 of the Code of Civil Procedure, 1908 and held that if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. The learned Judge, was of the opinion that the defendant ought to have denied in his written statement, the plaintiff’s claim of the octroi. According to the learned Judge, the defendant no.2, has not specifically denied the allegation of the plaintiff. This finding, is erroneous considering the fact that the defendants, since inception, have resisted the claim of the plaintiff on the ground of absence of octroi limit and were clamouring that if at all the goods have entered, the plaintiff may provide the details of the goods entering the octroi limits and the computation of the octroi. The insistence of the learned Judge from the defendant that the defendant, has not produced the exemption certificate from the payment of octroi, was also erroneous inasmuch as, the issue of exemption certificate would arise only once the plaintiff had satisfied the aspects, namely, the octroi limit, the goods entering the limit, so on and so forth. 22. The insistence of the learned Judge from the defendant that the defendant, has not produced the exemption certificate from the payment of octroi, was also erroneous inasmuch as, the issue of exemption certificate would arise only once the plaintiff had satisfied the aspects, namely, the octroi limit, the goods entering the limit, so on and so forth. 22. The law is settled as per provisions of Section 101 of EVIDENCE ACT that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist and when a person is bound to prove existence of any fact, the burden to prove lies on that person. Therefore, the initial burden to establish the basic allegations made in the plaint constituting the fundamental facts regardless of whether such assertion is couched in the afirmative or in the negative would undoubtedly lie upon the plaintiff and failure to discharge the said burden of proof stated in the plaint should be supported by adducing evidence. Moreover, the burden of proving the fact rests on the party who substantially asserts the afirmative issues and cannot be on the party who denies it. The burden shifts only after prima facie case is made out by the party adducing the evidence in the afirmative. The plaintiff in the present case should have produced cogent evidence to show the date on which goods entered the octroi limit and whether the goods entered during the period of Octroi Ijardar commencing from 01.04.2000. Moreover, the plaintiff cannot rely on the fact that defendant did not produce bills of goods and, therefore, adverse inference need to be drawn on the defendant of arriving at an amount of Rs.18,37,000/- (Rupees Eighteen Lakhs Thirty Seven Thousand Only). The plaintiff had not given any application seeking direction for the defendants to produce the evidence more particularly the bill before the trial Court. Moreover, when the defendant had stated in his deposition that he shall produce the bills of goods, the plaintiff could have given an application for direction to defendant no.2 to produce the same and, therefore, burden was on the plaintiff to prove the fact of computation of Rs.18,37,000/- (Rupees Eighteen Lakhs Thirty Seven Thousand Only) and that the gods entered octroi limit. 23. 23. Having gone through all the above aspects, including the oral as well as documentary evidence so also having heard learned advocates for the respective parties, it appears that plaintiff has not even alleged that they are entitled for an amount of penalty to the tune of Rs.1,83,70,000/- (Rupees One Crore Eighty Three Lakhs Seventy Thousand Only). The plaintiff has not given specific date on which date goods entered the octroi limit and even in the cross- examination also the plaintiff does not give any exact date on which goods entered the octroi limit and as to how computation of Rs.18,37,000/- (Rupees Eighteen Lakhs Thirty Seven Thousand Only) is made. 24. Adverting to the aspect of the penalty claimed by the plaintiff, it is required to be noted that the in the plaint, in paragraph 12, the plaintiff has quoted an amount to the tune of Rs.1,83,70,000/- (Rupees One Crore Eighty Three Lakhs Seventy Thousand Only) on the basis of Section 216 of the GUJARAT PANCHAYATS ACT , 1993 which, provides for penalty for evasion of octroi. Perceptibly, the claim of the plaintiff has been denied by the learned Judge on the ground that the provision is a penal and would apply when the defaulter proves the evasion. Paragraph 19 of the impugned judgment, reads thus:- “19. Moreover, the plaintiff has claimed the notice charge Rs.5,001/-. Looking to ex. 43 It appears that before filing this s the plaintiff has sent notice to the defendant no. 2 and looking to amount of suit, notice charge of Rs.5,001/- is reasonable and therefore, I award the same. Moreover, the plaintiff has claimed the amour penalty i.e. Rs.1,83,70,000/-. In view of claiming such amount, plaintiff's advocate argued that as per the provision of Sec. Gujarat Panchayat Act, the plaintiff is entitled to claim penalty am as prayed for. But I do not convenience with the arguments of Id. because on perusing such provision of Panchayat Act i.e. Sec. 2 clearly shows that it is penal provision and it applied when the defaulter proved the guilty. Here, in this case, the plaintiff has claimed such amount to file such civil suit. Therefore, in view of the provisions of Panchayat Act, Sec. 216, in this suit the plaintiff I not entitled amount of penalty as prayed for. Here, in this case, the plaintiff has claimed such amount to file such civil suit. Therefore, in view of the provisions of Panchayat Act, Sec. 216, in this suit the plaintiff I not entitled amount of penalty as prayed for. Therefore, I decide Issue No. 2 negative.” The claim has been denied on the ground that the plaintiff is not entitled to claim the penalty as he has failed to prove the same. There lies a fallacy in rejecting the claim on this count considering the fact that Section 216 of the Act of 1993, has been deleted by the Gujarat Panchayats (second amendment) Act, 2001 which, was deemed to have come to force from 01.05.2001. By virtue of Section 5 of the Amendment Act of 2001, Section 216 in the Principal Act, i.e. the Act of 1993, has been deleted. Hence, when the provision itself is not on a statute book, it having been deleted, the reasoning given by the learned Judge is illegal and perverse. The plaintiff being aggrieved by the said rejection, has preferred an appeal, mainly on the grounds that the learned Judge, has failed to take into consideration the provisions of the Act of 1993. Besides, the learned Judge has not taken into consideration the evidence regarding the amount of penalty. It is pertinent to note that in first place, Section 216 stands deleted in the year 2001 by virtue of the Amendment Act of 2001. On merits also, the claim, does not merit acceptance considering the fact that the plaintiff has failed to prove the original demand of the octroi. It is only when the plaintiff could have proved, the issue of penalty would have arisen. Also, when the plaintiff has fundamentally failed, the claim of penalty does not arise. When this Court, has not accepted the claim of the plaintiff, the consequential claim of interest, need not be gone into and hence, the appeal of the plaintiff, is not tenable. 25. Having examined the judgment and the evidence, this Court is of the opinion that the appraisal of the evidence by the learned Judge, suffers from material irregularity and the decision, is perverse. The learned Judge, straightaway, without requiring the plaintiff, has shifted the burden and has ignored the material evidence. 25. Having examined the judgment and the evidence, this Court is of the opinion that the appraisal of the evidence by the learned Judge, suffers from material irregularity and the decision, is perverse. The learned Judge, straightaway, without requiring the plaintiff, has shifted the burden and has ignored the material evidence. Upon re-appreciating the evidence, this Court, is of the considered opinion that the plaintiff, has failed to prove its case by leading cogent and material evidence, rather there was no evidence at all laid justifying or substantiating the claim. Having failed to substantiate the same, the plaintiff was not entitled to decree of such a huge amount. 26. For the reasons recorded above, the appeal filed by the defendant no.2 being First Appeal no.2521 of 2007 challenging the judgment and decree dated 13.12.2006 passed by the learned 2 nd Additional Senior Civil Judge, Morbi, District Rajkot in Special Civil Suit No.86 of 2001, is hereby allowed and as such the defendant no.2 is held not liable to pay any amount as prayed in the suit. 27. While the appeal filed by the original plaintiff being First Appeal no.4567 of 2007 deserves to be dismissed and it is accordingly, dismissed. No order as to costs. 28. It may be noted that this Court on 28.06.2007 and 13.07.2007, while admitting the appeal of the defendant no.2, has passed the following orders:- “ Order dated 28.06.2007:- Considering the admission of the appellant during the trial regarding the liability to pay the amount of octroi which based on appreciation of material and evidence, we direct the appellant to deposit the entire decreetal amount of liability towards octroi referred in the impugned judgment dated 13.12.2006 within two weeks, with the Registry of this Court, failing which, the appeal will stand dismissed. Order dated 13.07.2007:- By the order dated 28th June 2007, the appellant was directed to deposit the entire decretal amount with the Registry of this Court within two weeks. Counsel for the appellant submits that out of the total decretal amount, principal amount has been deposited and the amount of interest is yet to be deposited. He prays time. Deposit the balance amount within ten days, i.e. on or before 23rd July 2007. If the appellant fails to deposit the balance amount by 23rd July 2007, the appeal shall stand dismissed. He prays time. Deposit the balance amount within ten days, i.e. on or before 23rd July 2007. If the appellant fails to deposit the balance amount by 23rd July 2007, the appeal shall stand dismissed. Order dated 23.07.2007:- On 28th June, 2007, the appellant was directed to deposit the entire decretal amount. However, appellant had deposited only principal amount and therefore, by order dated 13.7.2007, he was directed to deposit the interest amount also. Now that has also been deposited. Admit. Issue notice to the respondents returnable by 17.8.2007. Till then statusquo be maintained. List on 17.8.2007.” Apropos the above-referred orders, the defendant no.2 has deposited the amount, the registry is directed to take necessary steps for refunding the same as per the procedure. 29. Record and Proceedings be sent back to the concerned trial Court.