V.S. Kokje J. -- 1. The petitioners have challenged in this petition the right of the Municipal Corporation to auction the right to recover tax/fee from the dealers engaged in sale and purchase of cattle. The petitioners have also contended that the Municipal Corporation has no authority to impose a tax on sale or purchase of cattle and the levy is totally without authority of law. However, the relief claimed in the petition is issue of appropriate writ or direction quashing the tender notice Annexure-A, whereby respondent No.3 was authorised to collect the tax from the purchasers of cattle in the Gafoor Khan-Ki- Bazaria, Indore. The relief for declaration as to levy of the tax or fee to be unconstitutional has not been sought. In view of this, we will confine our order to the first point alone that is whether the respondent Municipal Corporation can auction the right to collect tax from the purchasers of cattle in the market of Gafoor Khan-Ki-Bazaria, Indore.

2. In its return, the Indore Municipal Corporation has contended that it has appointed respondent No.3 not as a contractor but as an agent for recovery of fees. According to the Corporation the object of granting such an agency was to receive maximum fees without any leakages. It is contended that the respondent No.3 issues receipts on behalf of the Corporation and the arrangement cannot be said to be illegal or unauthorised. The Corporation has also relied on a letter Annexure-6, which is said to be a suggestion by the State Government for recovery through the agents. However, on a perusal of the Annexure-6, it is obvious that the letter does not relate to any such thing.

3. The petitioners have annexed to the petition a publication issued by the Indore Municipal Corporation containing conditions of the contract for recovery of fees as Annexure-A. A perusal of the document would show that right to recover fees has been auctioned for a lumpsum to the contractor and the contractor is given a right to recover one rupee per transaction of sale of cattle from the area of the market named Gafoor Khan-Ki-Bazaria, Indore. The respondents have not shown any authority of law for entering into such an arrangement. Their only contention is that in order to get maximum monetary benefit from the recovery of market fees, the agency has been auctioned.

4. Section 86 of the M.P. Municipal Corporation Act, 1956 (for Short 'the Act') provides for a creation of a Municipal fund and also provides that such a fund shall be held in Trust by the Corporation for the purpose of the act subject to the provisions contained therein. Section 87 of the Act provides for what has to be credited to Municipal fund. It is specifically provided in clauses (a), (e) and (f) of sub-section (1) of S. 87 of the Act that all moneys received by or on behalf of the Corporation under the provisions of the Act, or any other law for the time being in force or under any contract, or moneys raised by any tax levied for the purpose of any Act and all fees payable and levied under the Act or any rules or bye-laws made thereunder shall be credited to the Municipal fund. Thus, it is obligatory under the Act for the Municipal Corporation to see that every paisa realised as tax or fees is credited to the Municipal fund. Admittedly, in this case under the arrangement arrived at with the contractor, he has to deposit a lumpsum with the Municipal Corporation and has to realise a fixed fees on every transaction of sale or purchase of cattle in the market. The contractor is under no obligation to account for or to pay to the Corporation the fees realised over and above the amount which he has paid to the Corporation under the arrangement. Obviously, anyone entering into such an arrangement with the Corporation would do it with a view to earn some profit. The lumpsum amount which he would agree to give to the Corporation would be lesser than the expected recovery. He has to recover expenses of recovery also apart from profits. I