JUDGMENT

OZA, J. :— This appeal on certificate by the High Court of Gujarat is filed against the judgment of the Gujarat High Court dt. 28th April, 1971 holding Standing Order No. 3 framed under S. 466(1)(A)(f) read with S. 147 of the Bombay Provincial Corporations Act, 1949 (Act for short) as illegal and without the authority of law.

2. This Act applies to the city of Baroda and the present appellant the Municipal Corporation, Baroda is governed by this Act. It is not in dispute that octroi on the import of goods is chargeable under the scheme of the Act. Before this Standing Order which is the subject-matter of challenge before the High Court and before us was framed, a transporter who brought the goods within the limits of the Municipal Corporation in view of S. 147 of this Act was to pay the octroi duty chargeable on the goods on the assumption that the goods have been imported for sale, consumption or use in the limits of the city of Baroda. Under the scheme as it was in force if the goods were not consumed or sold within the limits of the Municipal Corporation and are taken out on the other end, and if the octroi post authority was satisfied that the goods which had entered are being taken out then the transporter had to get the tax which he had paid at the octroi post refunded. According to the appellant-Corporation this procedure took time at both the ends and for those transporters who were carrying goods which only were in transit in the city of Baroda still had to suffer the inconvenience of paying the octroi duty when they entered the city limits and then satisfy the authorities at the post from where they went out of town and also had to pay first the tax and then claim a refund, in order to avoid inconvenience and the burden on the transporter this Standing Order was provided so that when a transporter enters the Corporation limits with goods which are only in transit and not to be unloaded for sale or consumption within the Corporation limits and if the transporter so chooses on payment of supervision fees the transporter can carry the goods through the Corporation limits without payment of octroi under the supervision of the staff of the Corporation and for this purpose this Standing Order fee of Rs. 2/- per heavy vehicle was prescribed. It is alleged that originally the fee suggested was Rs. 5/- but on a representation made by the respondent-Association itself this was reduced to Rs. 2/- per vehicle.

3. By the impugned judgment, the High Court of Gujarat came to the conclusion that under S. 466(1)(A)(f) of the Act no doubt the Commissioner had the authority to frame Standing Orders but he can only frame Standing Orders in respect of goods on which octroi was payable under S. 466(1)(A)(f) and as the goods admittedly for which this fee was prescribed were goods not to be imported for sale or consumption the octroi was not payable thereon and therefore no Standing Orders could be framed under S. 466(1)(A)(f) and therefore Standing Order providing for fees as discussed above was beyond the authority of the Commissioner under this Act.

4. The High Court also accepted the second contention of the respondent that although the Corporation claims to charge the fee as a fee for the convenience of the transporter but after examining the scheme, the learned Judges of the High Court came to the conclusion that there is no quid pro quo established nor it is established that the charge and the collection made on the basis of this charge had any rational ratio with the services rendered by the Corporation. Aggrieved by this decision of the High Court the Municipal Corporation has come up in appeal.

5. The main contention advanced on behalf of the appellant was that imposition of this fee by the Corporation could not be said to be an imposition as it was optional, as when a transporter brings goods and enters into the Corporation limits it was open to him either to choose to take advantage of this Standing Order by paying supervis