Govinda Bhat, J.
1. These writ petitions raise a common question whether there can be said to be any sale of food to the students of a hostel by the hostel and as such liable to be assessed to sales tax under the Mysore Sales Tax Act, 1957, hereinafter referred to as the Act.
2. The petitioners are the Wardens of the Manipal Engineering College Hostel, Manipal, and Kasturba Medical College Hostel, Manipal. Both the hostels, according to the allegations made in the affidavits filed in support of the writ petitions, provide boarding and lodging facilities for the students of the Engineering and Medical Colleges at Manipal and they run messes for the students in the said hostels. The students manage the hostels through secretaries chosen amongst themselves and the expenses incurred every month are divided amongst the students. These facts are not disputed by the respondents.
3. The Commercial Tax Officers, Udipi (respondent No. 3) assessed the wardens of the hostels to sales tax for the year 1961-62. Against the orders of assessment the petitioners preferred appeals to the Deputy Commissioner of Commercial Taxes, Mangalore Division, Mangalore (respondent No. 2). Before the said respondent, the petitioners, inter alia, challenged the constitutional validity of explanation (1) to the definition clause (t) of section 2(1) of the Act. The second respondent rightly refused to entertain the challenge made to the constitutional validity of explanation (1) of section 2(1)(t) of the Act. He, however, set aside the assessment orders of the third respondent on the ground that they were arbitrary. The third respondent was directed to make fresh assessment orders after correctly determining the turnovers from the books of account. In these writ petitions the petitioners have contended that there is no sale of goods by the hostels to the students residing and boarding in the hostels and as such the levy of sales tax is illegal. It is also urged that explanation (1) of section 2(1)(t) is beyond the legislative competence and, therefore, unconstitutional.
4. In our opinion, it is unnecessary for the purpose of disposal of these writ petitions to express any opinion on the constitutional validity of explanation (1) of section 2(1)(t) of the Act, Since the petitioners are entitled to succeed on the ground that there is no sale of goods on the facts alleged which are not disputed.
5. In Joint Commercial Tax Officer, Harbour Division II, Madras v. The Young Men's Indian Association (Regd.), Madras and Others : 3SCR680 , the question arose whether a members' club is liable to be assessed to sales tax under the Madras General Sales Tax Act, in respect of articles of food etc., supplied by the club to its members. In section 2(g) of the Madras Act, there is also an explanation similar to the explanation in the Act. It was held by the Supreme Court that if there is no transfer of property involved in the supply or distribution of goods by a club it would not fall within explanation I contained in the definition of sale in section 2(n) nor can the club be regarded as a dealer within section 2(g) read with explanation I of the Madras Act. In the case of a students' hostel, where the students themselves manage the hostel and the expenses incurred are shared by the students, it cannot be said that there is any sale of goods by the hostel to the students. Furnishing of food by the hostel to its members does not involve any transfer of property. Therefore, respondents Nos. 2 and 3 had no jurisdiction to make the assessments on the hostels of the petitioners.
6. For the above reasons, these writ petitions are allowed and the orders passed by the second respondent in A.P. No. 99/67-68 dated 25th January, 1968, and A.P. No. 90/67-68 dated 27th January, 1968, are hereby quashed. We further issue a direction to the third respondent to forbear from making assessments on the petitioners for the assessment year 1961-62. No costs.
7. Petitions allowed.