JUDGMENT - V.A. MOHTA, J.:---By this petitions-M/s. Vidarbha Coal Supply Company, a transporter, has challenged the validity of the transit fee charges imposed by respondent No. 2 Cantonment Board, Kamptee under its Octroi Bye-laws, 1986 framed by virtue of authority conferred under section 284(1) of the Contonments Act, 1924 (Act No. 2 of 1924). 2. Relevant facts are few. The petitioner has taken the contract of transporting coal from Kamptee Inder Colliery of the Western Coalfields near Kanhan to the Koradi Thermal Power Station of the Maharashtra State Electricity Board. It has to transport approximately 150 trucks of coal every day from Kamptee Colliery to Koradi Power Station. The road on which these trucks ply passes through the area of Kamptee Cantonment Board as well as Kamptee Municipal Council. It is a part of Nagpur-Jabalpur National Highway. Neither is contonment area a destination of those goods nor are they brought in the area for consumption, use or sales. Relevant Octroi bye-law 10 reads thus : "Procedure for goods imported which are intended for immediate exportation : Goods imported by rail, air road and intended for immediate export shall be dealt with as follows : (a) The person in charge of the goods imported within the octroi limits, which are intended for immediate export, shall on their arrival at the Entrance Octroi Post, apply in from IV to the Octroi Officer for a written permission-cum transit pass for conveying the goods without escort, via the route from the Entrance Octroi Post to the Exit Octroi Post specified in Schedule I. He shall at the same time make at the Entrance Octroi Post a deposit calculated by the Officer in accordance with the scale of octroi chargeable on such goods plus a transit pass fee Rs. 5/-. On payment of the deposit and the fees for the written permission-cum-transit pass and if considered necessary by the Officer. On presentation of a declaration cum-application Form IV, the officer shall issue a written permission-cum-transit pass in Form V to the said person to proceed with the goods without escort. 5/-. On payment of the deposit and the fees for the written permission-cum-transit pass and if considered necessary by the Officer. On presentation of a declaration cum-application Form IV, the officer shall issue a written permission-cum-transit pass in Form V to the said person to proceed with the goods without escort. (b) On arrival of the goods at the Exit Octroi Post and on surrender of the written permission-cum-transit pass, the octroi officer shall verify the entries therein with the goods, and refund to such person the deposit as entered in the said pas, if the particulars of the goods as specified in the said pass tally with the goods which arrive at the Exit Octroi Post. (c) The person receiving refund of deposit shall sign on receiving the refund in the space reserved for the purpose, on the written permission-cum-transit pass. The counterfoils of all such passes issued and the original shall be sent to the Central Octroi Post the time fixed by the Executive Officer. The Octroi Superintendent shall compare the counterfoil with the originals and the register and satisfy himself that they tally and shall then pass an order to recoup the advance every day. Any irregularities discovered shall be reported immediately to the Executive Officer or the Board. (d) In case the person in charge of the goods agree to carry goods under escort without paying the deposit and transit fee, viz. the course route from the Entrance Octroi Post to the Exist Octroi Post specified by the Executive Officer from time to time, he shall on an application made in that behalf in Form VI and on payment of a fee of Rs. 6/- be granted a written permission in Form VII to carry such goods under escort provided by the Octroi Officer. In such cases the Octroi Officer at the Exit Post shall on surrender of the written permission allow the said person to pass through the post with the goods and the escort shall specify satisfy himself that the goods have actually have been carried outside the octroi limits without having broken bulk on the journey. The counterfoils be sent by the Exit Post Officer once a day to the respective Entrance post for pasting with the counterfoil." Thus it permits charge of Rs. The counterfoils be sent by the Exit Post Officer once a day to the respective Entrance post for pasting with the counterfoil." Thus it permits charge of Rs. 5/- per trip of truck as transit pass-fee when the amount equivalent to Octroi duty is deposited at entrance naka for being refunded at the exit naka and a sum of Rs. 6/- in case facility of escort is provided in which event the exercise of deposit and refund can be avoided. 3. The petitioners challenge to the levy is two-fold. One is that the very levy is illegal and the other is that it does not answer the test of quid pro quo. We take up point No. One for consideration first. Now, Section 60 of the Cantonments Act empowers the Board to impose with previous sanction of the Central Government in any cantonment any tax which under any enactment for the time being in force may be imposed in any Municipality in the State wherein such cantonment is situated. Section 105 of the Maharashtra Municipalities Act, 1965 empowers the imposition of compulsory taxes. Octroi is one of them. The Toll or Terminal tax are not included in the list of imposable taxes under section 105 or any other provision in the said Act. 4. Authority to levy Octroi, Terminal tax ad Toll in the State Legislature is derived from Entries Nos. 52, 56 and 59 respectively in the Slate List of Seventh Schedule of the Constitution of India, which read thus : 52. Taxes on the entry of goods into a local area for consumption, use or sale therein. xxxx 56. Taxes on goods any passengers carried by road or on inland waterways. xxxx 59. Tolls." Residuary Entry No. 66 in the said list reads thus : "Fees in respect of any of the matters in this list, but not including fees taken in any Court." It is fairly agreed before us that for the impugned levy to be legal it is necessary that it must fall under any of the above three substantial entries or the residuary entry. A thin but fine difference exists between Octroi, Terminal tax and Toll. A thin but fine difference exists between Octroi, Terminal tax and Toll. Very broadly speaking, whereas Octroi duty is imposable on entry of goods into a local area, only for consumption, use or sale therein, Terminal tax is imposable when the terminus of the gods is in the local area and Toll s leviable in return for general and/or special services rendered or privileges enjoyed actual and/or presumed. In the case of (Man Mohan Tuli v. Delhi Municipality)1, A.I.R. 1981 Supreme Court 991 the difference between the Octroi and Terminal tax is summed up thus : "(1) Terminal tax and octroi are similar kinds of levies which are closely interlinked with (1) destination of the goods, (2) the user in the local area on arrival of the goods. Where the goods merely pass through a local area without being consumed therein the mere fact that the transport carrying the goods half within the local area for transhipment or allied purposes would not justify the levy of either the terminal tax or octroi duty. This is because the halting of the goods is only for an incedental purpose to effectuate the journey of the goods to the final destination by unloading, sorting and reloading them at a particular place. (2) There is very thin margin of difference between a terminal tax and octroi. In the case of the former (terminal tax) the goods reach their final destination and their entry into the area of destination immediately attracts payment of terminal tax irrespective of their user. In the case of octroi however, the tax is levied on goods for their use and consumption. (3) But, at the same time, the goods while halting at a local area should leave for their destination within a reasonable time which may depend on circumstances of each case and if the goods are kept within the area for such a long and indefinite period that the purpose of reaching the final destination laying in a different area is frustrated or defeated, they may be exigible to terminal tax. (4) Where the goods enter into a local area which is also the destination of the goods either temporarily or otherwise, the terminal tax would be leviable. (4) Where the goods enter into a local area which is also the destination of the goods either temporarily or otherwise, the terminal tax would be leviable. For instance, if A consigns goods from Patna in Bihar to Delhi in the same of X and X after having received the goods at Delhi rebooks or reloads the same on a transport for Chandigarh in the name of Y, terminal tax would be leviable by the Corporation at Delhi because the destination of the goods in the first instances was Delhi and that by itself would attract imposition of terminal tax. The fact that X rebooks them to Chandigarh would not make any difference because the act of rebooking by X at Delhi would constitute a fresh transaction by which the goods after having been carried into Delhi are further exported to Chandigarh. On the other hand, when the is one continuous journey of the goods from Patna to Chandigarh without any break, the final destination would be Chandigarh even though the goods may have to be halted in Delhi for the purpose of unloading, sorting and reloading and may have to be kept in Delhi for a reasonable time. In such a case terminal tax would not be exigible." Tolls can be many kinds. For example, market tool, fair toll, ferry toll, canal toll, tolls relating to passage over land or water. The last variety of toll is of two types (a) toll through: which has no nexus with the ownership but has nexus with the actual services rendered and (b) toll traverse : which has nexus with the ownership and is chargeable for the use of the property form a person using the same. 5. With these essential broad differences between the three types of levies in view, let us examine various authorities placed before us for consideration by Shri Kukdey, the learned Counsel for the petitioner. First in order of time is the case of (The Central India Spinning and Weaving and Manufacturing Company Limited v. The Empress Mills, Nagpur)2, A.I.R. 1958 Supreme Court 341. It interpreted section 66(1)(o) of the C.P. Berar Municipalities Act 1922 and Rule 1 of the Terminal Tax Rules (Wardha) framed under the said Act. First in order of time is the case of (The Central India Spinning and Weaving and Manufacturing Company Limited v. The Empress Mills, Nagpur)2, A.I.R. 1958 Supreme Court 341. It interpreted section 66(1)(o) of the C.P. Berar Municipalities Act 1922 and Rule 1 of the Terminal Tax Rules (Wardha) framed under the said Act. Contextual meaning to the words "import", "export" and "terminal" used in the Rules was given and it was held that the goods in transit without their loading or unloading within the municipal limits of Wardha town did not attract terminal tax, as the entry of the goods merely for the purpose of onward movement outside the municipal limits did not amount to "import". The following observations are to the point : "Therefore terminal tax on goods imported or exported is similar in its incidence and is payable on goods on their journey ending within the Municipal limits or commencing therefrom and not where in goods were merely in transit through the municipal limits and had their terminus elsewhere .......... .......... Keeping in view the terms and language and the legislative history of the section 66(1) we are unable to enlarge the terms of the section by mere construction so as to include within its operation goods which are in transit and are being transported across the jurisdictional limits of the Municipality." Levy of terminal tax on such goods in transit was quashed by the Supreme Court. Question of validity of Terminal Tax on goods meant for destination outside the octroi limits in terms of section 178 of the Delhi Municipal Corporation Act, 1975 fell for consideration once again before the Supreme Court in the case of Man Mohan Tuli, (supra). Concurring with the view in Central India Co. Ltd. (supra) and referring to few more judgments on some other shades, the Supreme Court has held that even if there is change of mode of transport within the municipal area but definite destination is outside and the whole transaction forms part of one and the same transaction, the terminal tax would not be attracted. 6. In the case of (Kamaljeet Singh and others v. Municipal Board, Pilkhwa)3, A.I.R. 1987 Supreme Court 56 section 128(1)(vii) of the U.P. Municipalities Act which imposes toll in addition to octroi, fell for consideration. Point was whether toll could be levied on goods which merely pass through municipal limits. 6. In the case of (Kamaljeet Singh and others v. Municipal Board, Pilkhwa)3, A.I.R. 1987 Supreme Court 56 section 128(1)(vii) of the U.P. Municipalities Act which imposes toll in addition to octroi, fell for consideration. Point was whether toll could be levied on goods which merely pass through municipal limits. Answering the point in the negative it is observed: "The toll tax in question however cannot be treated to be a compensatory tax for the use of trading facilities. The Municipal Board provides no facilities whatever to the owners of vehicles like state carriages making use of National Highway No. 24. The township of Pilkhaw is off the National Highway and is quite at some distance. It is connected by a road and a part of the National Highway has been included within the municipal limits, Merely because stage carriage operators like to appellant ply their stage carriages on permits issued on the inter-state route Delhi-Garhmukteshwar which falls on the National Highway and stop their buses for the facility of passengers going to and coming from Pilkhwa, or that the Municipal Board has set up two electric poles at the toll barriars for facility of collection of the toll tax, does not justify the imposition of a toll tax, Usually, the consideration for a toll is some amenity, service, benefit or advantage which the person entitled to the toll undertakes to provide for the public in general, or the persons liable to pay the toll. The National Highway is being maintained by the Government and the approach road built by the Public Works Department. There is a nallah constructed by the Municipal Board for flow of the sewage water from the town of Pilkhwa, but that does not entitle the Board to levy a toll tax on stage carriage operators like the appellants as a compensatory tax. Even assuming that the Municipal Board has to incur expenditure on maintenance of the connecting road and the nallah, but they are facilities provided for the residents of the town for which it recovers various taxes. Furthermore, maintenance of roads, bridges, etc. are statutory duties of the Municipal Board under section 7 of the Act. Even assuming that the Municipal Board has to incur expenditure on maintenance of the connecting road and the nallah, but they are facilities provided for the residents of the town for which it recovers various taxes. Furthermore, maintenance of roads, bridges, etc. are statutory duties of the Municipal Board under section 7 of the Act. The levy of the toll tax by the Municipal Board must therefore be struck down as ultra vires." Thus there seems to be settled view that goods merely passing through local area do to attract either terminal tax or toll. 7. We now turn to a decision on the question of validity of transit pass fees. The case of (The Town Municipal Council v. M/s. Urmilla Kothari)4, A.I.R. 1977 Supreme Court 873, is a leading case on the point. Section 124 of Karnataka Municipalities Act, 1964 and Rule 26 of the Karnataka Municipalities Taxation Rules, 1965 fell for consideration in that case. Section 124 reads thus : "124. Non-liability for octroi and refund of octroi on grounds in transit.--- (1) Any article or animal brought into the municipal limits for the purpose of immediate exportation may at the option of the importer not be subjected to levy of octroi if such article or animal be conveyed direct from the place of import the place of export by such routes, within such time, and under such supervision as the municipal council may by resolution determine. For purposes of this sub-section the Municipal Council shall on payment of the prescribed fees issue promptly the necessary transport permits. For purposes of this sub-section the Municipal Council shall on payment of the prescribed fees issue promptly the necessary transport permits. (2) When any article in respect of which octroi has been paid is exported from the municipal limits, in the same condition in which it was brought into or received from beyond the municipal limits, the amount of octroi paid shall, subject to such rules as may be prescribed be refunded." Rule 26 reads thus : "26....................In case the person bringing the goods wishes to transport the goods at once beyond the limits of the municipality he shall do so only after obtaining a transport permit in Form IV on payment of a fee of rupees two for each lorry and rupee one in other cases in the case of a city municipal council and rupee one for each lorry and fifty paise in other cases in the case of a town municipal council." We have quoted the section and the Rule in extenso with a view to demonstrate that though there is a slight difference in terminology used in the same and the provisions which fall for consideration in the present case, the crux of the matter is the same. Interpreting the true meaning of the words 'brought into" and "immediate exportation" it is held that they do not comprehend within their sweep the continuous process of transit of goods, by vehicles which merely use the State highways passing through the areas which lie within the municipal limits. The Supreme Court held that important element of repose and rest which the words "brought into the municipal limits for the purpose of immediate exportation" imply was absent in that case. In conclusion it is said : "Bearing in mind the above authoritative enunciation of law, we are of opinion that as the continuity or continuous process of the carriage of iron ore is not in any way in fact broken within the municipal limits of Kalghatgi, the respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with Rule 26 of the Rules and as such is not liable to pay the octroi or what is styled as 'supervision fee'. A contrary interpretation would make rail borne goods passing through the Railway Stations within the limits of the municipality liable to the imposition of the fee on their arrival at the Railway Stations and departure therefrom which could not be the intention of the Legislature." 8. In our view the above case is a direct authority on the point. Several High Courts have as they were duty bound-followed the above decision. It is pertinent to notice that transit-pass fee which is described as supervision fee under Rule 26 in the above case has been treated to be a part of the octroi duty by the Supreme Court. Position with relation to the relevant bye law is in no way different. The bye-laws are basically styled as Kamptee Cantonment Octroi Byelaws, 1986 and their stated object is : "Whereas a draft or bye-laws for regulating the collection and recovery of octroi the Kamptee Cantonment was published with Contonment Board Notice No. CK/B27/R-O/ D-1059A/P, dated the 23rd December, 1985, as required by sub-section (1) inviting objections and suggestions from all persons likely to be affected thereby till the expiry of period of 30 days from the date of publication of the said notice." 9. Shri A.S. Bobde, the learned Advocate General appearing for the respondent No. 2 Board, very fairly stated before us that levy cannot be justified either as a toll or as terminal tax or as an octroi. According to him, imposition of this levy as fees is incidental to the power to impose octroi and is permissible on the basis of the general principles relating to the incidental power as well as Entry 66 of the State List. Our attention was invited by him to various decisions dealing with the subject of incidental power. The case of (Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver)5, A.I.R. 1968 Supreme Court 59 deals with section 41(2) of the Madras General Sales Tax Act, which empowers the officers to inspect the account books. Question arose whether the power includes the power of search. Answer was in the affirmative. The case of (Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver)5, A.I.R. 1968 Supreme Court 59 deals with section 41(2) of the Madras General Sales Tax Act, which empowers the officers to inspect the account books. Question arose whether the power includes the power of search. Answer was in the affirmative. Reasons can be best quoted in the words used by the Supreme Court : "It is also not in doubt that while making law under any entry in the Schedule it is competent to the legislature to make all such incidental and ancillary provisions as may be necessary to effectuate the law; particularly it cannot be disputed that in the case of a taxing statute is open to the legislature to enact provisions which would check evasion of tax. It is under this power to check evasion that provision for search and seizure is made in many taxing statutes. It must therefore be held that the legislature has power to provide for search and seizure in connection with taxation laws in order that evasion may be checked." 10. We are unable to see how the ratio of said decision will apply to the instant matter. The point is not whether the Cantonment Board has authority to make incidental provision for checking evasion of the octroi duty and to supervise activities which may possibly lead to evasion. The point is, is it authorised to levy compensatory fees on a transporter like the present petitioner with a view to meet the expenses incurred in such supervision. With this supervision the petitioner is in no way concerned. No services-general or special are rendered to him. The Cantonment Board may detain a truck at the entry barrier, recover amount equivalent to octroi for being refunded at the exit barrier and may not allow the truck to pass without any escort. The Board is no doubt required to spend some possible. Board no doubt needs to be compensated but not from persons like the petitioner. This checking is for the purposes of the Board to protect its own interest and if at all, its charges can be recovered from those on whom the burden of paying octroi falls. The difference between 'tax' and 'fee' is too well-known to be elaborately noticed. Without an element of quid pro quo no fees can be levied. This checking is for the purposes of the Board to protect its own interest and if at all, its charges can be recovered from those on whom the burden of paying octroi falls. The difference between 'tax' and 'fee' is too well-known to be elaborately noticed. Without an element of quid pro quo no fees can be levied. Services rendered maybe indirect, they may not be availed of but have to be made available. In our view the factor is totally absent in transit-pass fee. 11. In this connection we may make useful reference to the case of (The India Mica and Micantte Industries v. The State of Bihar)6, A.I.R. 1971 Supreme Court 1182. Question arose, whether levy made under Rule 111 of the Rules under section 90 of the Bihar and Orissa Excise Act for a licence to possess denatured spirit used by a manufacturer in this process, is legal. It was held that charging licence fee to a consumer with a held view to see that the rules are not violated, was illegal in the absence of element of quid-pro-quo. In this connection the following observations are extremely significant : "According to the finding of the High Court the only services rendered by the Government to the appellant and to other similar licensees is that the Excise Department have to maintain an elaborate staff not only for the purposes of ensuring that denaturing is done properly by the manufacturer but also for the purpose of seeing that the subsequent possession of denatured spirit in the hands either of a wholesale dealer or retail seller or any other licensee or permit-holder is not misused by converting the denatured spirit into alcohol fit for human consumption and thereby evade payment of heavy duty. So far as the manufacturing process is concerned, the appellant or other similar licensees have nothing to do with it. They are only the purchasers of manufactured denatured spirit. Hence the cost of supervising the manufacturing process or any assistance rendered to the manufacturers cannot be recovered from the consumers like the appellant. Further under Rule 9 of the Board's rules, the actual cost of supervision of the manufacturing process by the Excise Department is required to be borne by the Manufacturer. There cannot be a double levy in that regard. Further under Rule 9 of the Board's rules, the actual cost of supervision of the manufacturing process by the Excise Department is required to be borne by the Manufacturer. There cannot be a double levy in that regard. In the opinion of the High Court the subsequent transfer of denatured spirit and possession of the same in the hands of various persons such as whole-sale dealer, retail dealer or other manufacturers also requires close and effective supervision because of the risk of the denatured spirit being converted into potable liquor and thus evading heavy duty. Assuming this conclusion to be correct, by doing so, the State is rendering no service to the consumer. It is merely protecting its own rights." 12. In the case of (Corporation of Calcutta v. Liberty Cinema)7, A.I.R. 1965 Supreme Court 1107, which related to the case of levy of licence fee under the Calcutta Municipal Act, it is observed : "The inspection was not certainly a service to the licensee ; it was necessary only to make sure that he carried out the conditions on which the licence had been granted to him. It was something to be done to control the licensee's activities and to make him observe the conditions of the licence on pain of cancellation of the licence. This is clear from sub-section (3) of section 548 which state that, "any licence....................granted under this Act.................may at any time be suspended or revoked....................if any of its restrictions or conditions is infringed or evaded by the grantee." This non-observance of the conditions of licence would expose the licence to penalty under section 537 of the Act. The inspection was therefore necessary also for enforcing the conditions of the licence by penalising a breach of them by the licensee. The inspection was therefore necessary also for enforcing the conditions of the licence by penalising a breach of them by the licensee. We cannot imagine that an inspection by the Corporation for such purposes can at all be said to be rendering of service to the licensee." Adverting to a point that there can be valid imposition of supervision fee under incidental power, even without establishing element of quid pro quo it is observed : "No case has been brought to our notice in which it has been held that a mere control exercised on the activities of the persons on whom the levy is imposed so as to make those activities more onerous is service rendered to them making the levy a fee." In our judgment, therefore, the impugned transit-pass fee cannot be sustained even under Entry 66 of the state list. 13. Shri Bobde invited our attention to the case of (Gramophone Company of India Ltd. v. Birendra Bahdur Pandey)8, A.I.R. 1984 Supreme Court 667. In that decision the word "import" within the meaning of sections 51 and 53 of the Copyright Act fell for consideration. The said word is not defined under the Copyright Act. In the context of the scheme of the Copyright Act it was held that mere bringing into India of certain books from out of India amounted to import, irrespective of whether they were to be eventually exported outside India or not. The Supreme Court considered the ratio of the Central Co. Ltd. (supra) where the word "import" under the C.P. and Berar Municipalities Act was interpreted and has held that the context of the two provisions is different and no literal meaning to the word can be assigned. After noticing the difference in the scheme of the two enactment it is observed : ".................Another reason given by the learned Judges to arrive at the conclusion that they did, was that the very levy was a 'terminal tax' and, therefore, the words 'import and export' in the given context, had something to do with the idea of a terminus and not an intermediate of a journey. We are afraid the case is really not of any guidance to us since in the context of a 'terminal tax' the words 'imported and exported' could be construed in no other manner than was done by the Court." 14. We are afraid the case is really not of any guidance to us since in the context of a 'terminal tax' the words 'imported and exported' could be construed in no other manner than was done by the Court." 14. Under the circumstances, it is not possible to accept the submission that the word 'import' used in definition 2(h) of bye-laws can be literally construed to mean mere entry of goods within the octroi limits without anything more. The word 'import' is defined in the relevant bye-laws under : " 'import' means bringing or entry of any goods into the octroi limits of Board from any place outside such limits." 15. This judgment will not be complete without reference to a judgement rendered by Andhra Pradesh High Court in the case of (Secunderabad Cantonment Board and another v. B. Anantha Reddy and others)9, Writ Appeal Not 95 of 1972 decided on 27th October, 1972 in which validity of transit-pass fee imposed in similar circumstances is upheld. No detailed discussion of the reasoning adopted in the said decision is necessary as the decision stands overruled in view of the case of Supreme Court in Town Municipal Council v. M/s. Urmilla Kothari (supra). 16. Under the circumstances, we strike down the levy of impugned transit-pass fee and restrain respondent No. 2 Board from recovering the same in future. We also direct its refund within 3 months to all those from the whom it is recovered. Rule absolute accordingly. No costs. 17. At the request of respondent No. 2 Board and respondent No. 3 contractor, operation of this judgment is stayed for a period of three months to enable them to move the Supreme Court but on the following conditions : (i) The fees recovered by the respondent No. 3 Contractor will be immediately deposited with the Board. (ii) The Board will be liable to refund the fees whether or not the contractor deposits wit the Board. Order accordingly. -----