A Municipal Council is not empowered to transfer the right to recover a Municipal Tax to any other person by auction or otherwise.

( 1 ) THIS order shall govern the disposal of Misc. Petitions Nos. 1078/92, 1337/92, 907/92, 1027/92, 780/92, 846/92 and 1183/92. This bunch of cases was heard along with Misc. Petition No. 111/92 as the point involved in these cases was the same as was involved in that case with the only difference that that was a case under the M. P. Municipal Corporations Act, 1956 (hereinafter called as the "corporation Act") and these are the cases under the M. P. Municipalities Act, 1961 (hereinafter called as the "municipalities Act" ). In our order pronounced in M. P. No. 111/92 declared today, we have taken the view that function of recovery of a Municipal Tax cannot be transferred by way of auction or otherwise by Municipal Corporations to any other agency. The reasons stated in our decision in M. P. No. 111/92 to a great extent apply to these cases under the Municipalities Act also. However, certain features peculiar to the Municipalities Act compel us to write this separate judgment giving reasons for coming to the same conclusion as in reached in M. P. No. 111/92 in support of cases of Municipalities also.

( 2 ) THE point involved in all these cases is whether a Municipal Council is empowered to transfer the right to recover a Municipal Tax to any other person by auction or otherwise? It was contended on behalf of the petitioners that in view of Sections 104 and 105 of the Municipalities Act all the moneys raised by a tax levied for the purposes of this Act have to be credited to the Municipal Fund formed under Section 104 of the Municipalities Act. So far as this contention is concerned view taken by us in our decision in M. P. No. 111/92 on the basis of Sections 86 and 87 of the Corporations Act holds good in respect of Municipalities Act also. A comparison of Section 104 of the Municipalities Act with Section 86 of the Corporations Act and of Section 105 of the Municipalities Act with Section 87 of the Corporations Act would show that the provisions are pari-materia. We are therefore of the view that for the reasons stated in our decision in M. P. No. 111/92 it is not permissible for a Municipal Council to transfer a right to recover a Municipal Tax to any other person or body in a manner which would infringe the mandate of Section 105 of the Municipalities Act.

( 3 ) THE peculiar feature of the Municipalities Act is, however, Section 160 of the Act on which great emphasis has been laid by the learned Counsel appearing for various Municipal Councils. It would be useful to quote Section 160 of the Municipalities Act hereunder for ready reference. :-"160. Lease of Levy of tolls, market dues and fees.--------------- (1) The council may, by public auction or private contract, lease the levy of tolls, market dues and fees which may be imposed under this Act: provided that the lease shall give security for the due fulfillment of the conditions of the lease. (2) When lease have been given under sub-section (1) the lessee and any person employed by him to collect any tolls, market dues and fees shall, subject to the conditions of the lease, have the power referred to in sub-sections (8) and (5) of Section 157. "

( 4 ) A bare reading of the provision would make it clear that the term "tax" is not included in the Section. What is permitted under the Section is leasing of the levy of tolls, market dues and fees. So far as recovery of tax is concerned the Section does not provide for leasing by auction or otherwise. When this was pointed out to the learned counsel appearing for various Municipal Councils they fell back on the definition of "tax" in sub-section (37) of Section 3 of the Municipalities Act. We reproduce the provision hereunder:-"3. Definitions.- In this Act unless the context otherwise requires, (37) "tax" includes any toll, rate, cess, fee or other impost leviable or levied under this Act. "

( 5 ) IT was contended on behalf of the Municipal Councils that because of the wide definition of the terms "tax", tolls,