Govinda Bhat, J.
1. The petitioner is a hardware merchant carrying on his business at Puttur in South Kanara District. On 7th January, 1971, he hired a goods vehicle bearing registration No. MYX 6372 for the purpose of bringing fish manure from Gangolli in Coondapur taluk of South Kanara to Puttur. For the said purpose the petitioner despatched 4,100 empty gunny bags in the said motor vehicle from Puttur to Gangolli on 7th January, 1971. the driver of the said vehicle was M. Jayaram Shetty. The petitioner gave to the said driver a certificate, copy of which is marked as annexure A, in which the name and address of the petitioner, the particulars of the gunny bags, etc., were mentioned. It was also stated that the gunnies were sent for bringing fish manure.
2. The Check Post Officer, respondent No. 1, stopped the said vehicle at Padil near Mangalore Town and demanded the trip sheet, bill of sale or delivery note in form No. 39 as per rule 23(d) of the Mysore Sales Tax Rules, 1957. The driver produced the aforesaid certificate of ownership but the first respondent after recording the statement of the said driver gave an endorsement as to why a penalty of Rs. 93 should not be levied under section 28-A(4) and (5) of the Mysore Sales Tax Act, 1957. Thereafter, the first respondent proceeded to make an order holding that the said driver is guilty of the offence of contravention of section 28-A of the Act read with rule 23(d) of the Mysore Sales Tax Rules and, therefore, punishable under section 28-A(4) of the Act. Consequently, he levied a penalty of Rs. 93.
3. The driver of the vehicle did not pay the penalty and, therefore, the first respondent on 20th January, 1971, issued a notification for sale of 3 bundles of gunnies. The sale was posted for 27th January, 1971, at 4.00 P.M. Copy of the said notice was issued to the petitioner on 1st February, 1971. The petitioner approached this court for relief under article 226 of the Constitution of India. An interim order was made at the stage of admission staying the sale of the gunnies but before the order was communicated three bundles of gunnies were actually sold.
4. Sri K. Srinivasan, the learned counsel for the petitioner, urged that the action of the first respondent is illegal and unauthorised by law. His argument was that section 28-A of the Act is not applicable to a case where the owner of the goods transports the same not for the purpose of sale and it does not apply to a case as in the instant case, where the owner sends the goods for his own (sic) or sale. In the certificate issued by the petitioner, it was specifically mentioned that the gunnies were sent for fetching fish manure from Gangolli. The first respondent levied the penalty on the ground that the goods were not accompanied by the copy of the sale bill or form No. 39. When the petitioner is not dealing in gunnies and he has not sold the same, the goods cannot be accompanied by any sale bill.
5. Sri Mahendra, the learned High Court Government Pleader, contended that the petitioner was required to send a delivery note prescribed as per form No. 39. His argument was that if the owner is transporting goods from one of his shops or godowns to another for the purpose of storage or sale, a delivery note should accompany the goods. The learned counsel relied on clause 4(c) of form No. 39. The instant case is not one where the owner is transporting his goods for the purpose of storage or for sale. He despatched the gunnies for the purpose of bringing manure from Gangolli. Therefore, there was no material for the first respondent to come to the conclusion that the petitioner had contravened section 28-A of the Act read with rule 23(d) of the Mysore Sales Tax Rules.
6. In the result, for the reasons stated above, we allow this writ petition and quash the proceedings of the first respondent dated 7th January, 1971, under section 28-A(4) of the Act. Since the first respondent has sold the three bundles of gunnies belonging to the petitioner, the sale proceeds of the same should be paid over to him. The petitioner is entitled to the costs of this petition. Advocate's fee Rs. 100.
7. Petition allowed.