1. These three petitions under Article 226 of the Constitution raise a common question of law and may be disposed of by one judgment. The prayer in these petitions is that a writ of mandamus be issued to the opposite party, the Assistant Sales Tax Officer, In charge, Check Post Hindon Bridge, Ghaziabad, directing him not to make any endorsement restraining the delivery of the goods to the petitioners.
2. The petitioner in Writ Case No. 342 of 1957 is the proprietor of Messrs. Jainarain Tika Ram and carries on business at Sikandrabad, district Bulandshahr. The petitioner in Writ Case No. 407 of 1957 is the proprietor of Firm Sardar Partap Singh Mahinder Singh and carries on the work of printing cloth at the outskirt of the city of Bulandshahr. Sri Moti Lal Agarwal is the petitioner in Writ Case No. 542 of 1957 and carries on the business of buying and selling cloth at Kher in the district of Aligarh. The facts set out briefly in these petitions are that under Section 28 of the U. P. Sales Tax Act, the Department has opened a check post: at the Hindon Bridge and the goods which are brought from Delhi enter Bulandshahr, Aligarh and Sikandrabad from that Bridge, At the check post the person who transports these goods has to give a declaration in a prescribed form under Section 28. From the 19th January, 1957, the officer in charge of the said check post has started the practice of noting on the motor transport receipts the following words:-
The goods of the R/R shall be delivered in the presence of the Sales Tax Officer concerned.
3. It is stated by the petitioner in the affidavit that, in view of this endorsement made on the receipt, the delivery cannot be made until the Sales Tax Officer finds time to come to the godown of the transport company and get the goods delivered in his presence. It is contended by the petitioners that this endorsement results in great hardship to the petitioners whose deliveries are detained sometimes for a very long time, as the Sales Tax Officer resides at Bulandshahr which is at some distance from the godown of the transport company. It is contended by the petitioners that Section 28 does not give power to the officer in charge of the check post to make such an endorsement. Section 28 of the U. P. Sales Tax Act provides as follows :-
28. (1) The State Government may by notification in the official Gazette, set up and erect in such manner as may be prescribed, check-posts and barriers at any place in the State with a view to preventing evasion of sales tax and other dues payable under this Act.
(2) Every person transporting such goods as may be notified shall, at any check-post or barrier referred to in Sub-section (1), file before such officer as may be authorised by the State Government in this behalf, a declaration in such form and in such manner as may be prescribed.(3) The officer authorised by the State Government under Sub-section (2) or any other officer who may be authorised in this behalf may, for the. purpose of satisfying himself that the provisions of Sub-section (2) are not being contravened, and subject to such restrictions as may be prescribed, intercept and search any vehicle which may be suspected of contravening the said provisions.
4. We have carefully considered the language of Section 28 and, in our opinion, Sub-section (3) of Section 28 does not give any power to the officer authorised by the State Government to make an endorsement on the receipts to the effect that the delivery will not be made except in the presence of the Sales Tax Officer. The endorsement made by the officer in charge of the check post was, in our opinion, beyond the powers given to him under Section 28.
5. Two points have been urged by the Standing Counsel in reply to the arguments of the counsel for the petitioner. Firstly, it is contended that no right of the petitioners has been infringed and consequently the petitioners are not entitled to any relief under Article 226 of the Constitution. There is no substance in this contention of the Standing Counsel. The petitioners carry on their business and any endorsement made by the officer in charge of the check post by which the delivery cannot be effected except in the presence of the Sales Tax Officer necessarily affects the rights of the petitioners to carry on their business. It is likely to result in delay of the delivery. The endorsement, therefore, in our opinion, clearly affects the rights of the petitioners and they are entitled to come to this Court.
6. In Writ Case No. 342 of 1957 it was contended by the Standing Counsel that no facts had been set out by the petitioner which would show that there was any delay caused by the endorsement in the delivery of the goods to the petitioner. As we have pointed out earlier that the endorsement itself affects the rights of the petitioner to carry on his business, it was therefore not necessary for the petitioner in order to get relief under Article 226 of the Constitution to give any further facts. Moreover in the other two petitions, the petitioners have mentioned the facts which will show that there has been some delay in the delivery due to the endorsement.
7. The next question which was urged by the Standing Counsel was that Sub-section (3) of Section 28 gives a power to the officer in charge to intercept and search any vehicle in order to satisfy himself that the provisions of Sub-section (2) of Section 28 have not been contravened. The power to intercept and search necessarily includes the power to detain, and the power to detain necessarily carries with it the power to direct that the delivery should be made in the presence of the Sales Tax Officer. The only effect of this endorsement is that the delivery is delayed, and similar effect may be brought about by detention. Thus the power to make an endorsement is included in the power of interception. There is no force in this argument. Sub-section (3) only gives power to the officer in charge of the check post, in order to satisfy himself that the provisions are not being contravened, to intercept and search any vehicle ; but to our minds it does not give him any power to make an endorsement to the effect, that the delivery itself will not be made except in the presence of the Sales Tax Officer, which means in many cases inordinate delay. The delay would affect the business of the petitioners. In our opinion, therefore, Section 28 (3) does not give any such power to the officer in charge of the check post to make the endorsement, and the petitioners are entitled to the mandamus prayed for.
8. We, therefore, allow these petitions with costs. A direction shall issue to the opposite party No. 1, the Assistant Sales Tax Officer, In charge, Check Post Hindon Bridge, Ghaziabad, not to make an endorsement to the effect that the delivery will not be made except in the presence of the Sales Tax Officer.