JUDGMENT R.M. Sahai, J. - By these four petitions, two by wholesalers and Commission Agents of Rice and two by Rice Millers, the levy and demand of market fee, under U.P. Krishi Utpadan Mandi Adhiniyam (hereinafter referred to as the Act), has been challenged, both on non applicability of S. 17 (1) (b) of the Act and absence of any special benefit or privilege to petitioners for the fee paid by them. Apart from these, certain minor aspects also arise which shall be considered in course of the judgment. 2. Since the enforcement of the Act, a series of attempts have been made by a spate of petitions challenging the levy being in violation of quid pro quo rule, the sine qua non for imposition of fee but it has always been repelled by this Court (see Atma Ram Rati Lal v. State, 1979 All L J 126, Special Appeal No. 280 of 1972 (reported in 1973 Tax L R 2372); Mangali Prasad Kamta Prasad v. Krishi Utpadan Mandi Samiti decisions mentioned at page 132 of Atma Ram's decision). Final battle, however, was fought in the Supreme Court in appeals arising out of a bunch of petitions decided alongwith Atma Ram's case and the Hon'ble Court put final seal to the constitutional validity of the imposition : Ram Chandra Kailash Kumar v. State of U.P., AIR 1980 S C 1124 (1980 All LJ 49O). 3. It held (at p. 499 of All L J) :- "Yet charging of 1% fee as is being charged throughout the State of Uttar Pradesh by all the Market Committees is not illegal and does not go beyond the quid pro quo theory discussed in Puri 's case (AIR 1980 S C 1008) " What survives for consideration, therefore, is the validity of demand of the fee from petitioners on principles enunciated by the Supreme Court in Kewal Krishna Puri v. State of Punjab, AIR 1980 S C 1008 as the Hon'ble Court while passing the order in Ram Chandra's (supra) observed, (at pp. 507, 508):- "We do hope that services are being rendered and will continue to be rendered by the various Market Committees in the light of the judgment in Kewal Krishna Puri "s case. 507, 508):- "We do hope that services are being rendered and will continue to be rendered by the various Market Committees in the light of the judgment in Kewal Krishna Puri "s case. If in regard to any particular Market Committee it is found that services are not being rendered or in future lapses are made then it will be open to the payers of fees to reagitate the matter in the High Court in the light of that jugment." In Puri 's case although seven principles have been laid down but the basic philosophy round which they revolve is, "But generally and broadly speaking it must be shown that with some amount of certainty, reasonableness or preponderance of probability that quite a substantial portion of the amount of fee realised is spent for the special benefit of its payers." It is in this background and enunciation of law that the allegations made in the counter affidavit, supplementary affidavits etc. filed by Samitis in reply to the amendment applications raising this plea in each of the petitions has to be examined. Before summarising these allegations it may be pointed out that the burden to establish that fees are charged for services rendered is on the Samiti. In para 9 of counter-affidavit filed in amendment application in Civil Misc. Writ Petn. No. 487 of 1974 it is alleged, `Mandi Samiti has rendered various services to the petitioners and other traders, producers and sellers and others engaged in the transactions of specified agricultural produce in the market area of Dhampur from the very inception. The Mandi Samiti has made arrangement for light, water, sweeping and other facilities in the market yard. It has provided tents, urinals and has also constructed link roads and culverts. These have been more or less repeated except for very minor changes in para 9 of Civil Misc. Writ No. 5020 of 1977, para 22 of Civil Misc. Writ No. 2109 and 2110 of 1977. They constitute the services which are being rendered at present. 4. Then the second set of allegations in same paragraph is, that Samitis have either submitted proposals for acquiring land for constructions of market yard or it is in process of acquisition and after land is acquired, the cost of which runs in lakhs, the Samitis propose to construct market complexes consisting of godowns, post-office, bank, police station, warehouse shelter, rest house etc. That is, the Samitis intend to render these services in future. 5. Lastly in the supplementary affidavits in Civil Misc. Writ No. 487 of 1974 and 5020 of 1977 it is alleged that services as provided in S. 16 of the Act are being rendered. In this l regard it is peculiar that no special service has been alleged but all the duties which have to be performed by Samiti have been alleged to be being performed. The allegations are faithful reproduction of` various functions to be discharged by the Samiti. 6. Before considering each of them individually and their implication it may be mentioned that allegations are not only identical but general in nature, and absolutely vague. No effort has been made q substantiate the allegations by filing extract of accounts maintained by Samiti. In case where levy is challenged for lack of rendering service, the burden is on the other side to rebut it by fact and figure, not by empty words. Despite the law having been clarified by the Supreme Court in Puri's and Ram Chandra's cases (AIR 1980 S C 1008 and 1980 All L J 490 (S C)) that substantial amount of fee should be shown to have been spent on payers of fee the affidavits and supplementary affidavits are blissfully silent. They have' pitched their faith more on law than on facts. In the declaration of law that fee can be charged for service to be rendered in future they found a shelter forgetting that it has to be related to the payer. The following observation, in the Chief Commissioner Delhi v. Delhi Cloth and General Mills Ltd., AIR 1978 SC 1181 (at p. 1182) : "there must be an element of quid pro quo that is to say, the authority levying the fee must render some service for the fee levied however remote the service may be," was explained in Puri's case (AIR 1980 S C 1008) and it was observed (at para 21) : "We would like to point out that the first condition is rather couched in too broad and general language. Rendering some service, however remote the service may be, cannot strictly speaking satisfy the element of quid pro quo required to be established in case of the impost of fee". 7. They may now be scrutinised one by one. Rendering some service, however remote the service may be, cannot strictly speaking satisfy the element of quid pro quo required to be established in case of the impost of fee". 7. They may now be scrutinised one by one. The present service which is being rendered according to Counter-affidavit is sweeping of floor, lighting, water, providing for urinals and tents etc. Even ignoring the rejoinder affidavit that most of these services are being performed by Public Works Department of Municipal Boards, can these services be considered sufficient for charging fee from Rice-Millers? In Puri's case (AIR 1980 S C 1008) the Supreme Court rejected such general service. 8. Then as regards construction of link roads and culverts there is no whisper whether this construction is in market yard or market area. In Puris case (AIR 1980 S C 1008) this problem also arose. Cl. (viii) of S. 27 of the Punjab Act enjoined upon, the committee to construct and repair approach roads, culverts, bridges and other such purposes'. It was held by the Hon'ble Court (at p. 1027) : "But as we have pointed out above, if one were to give a very wide meaning to this phrase of construction and repair of approach roads, culverts and bridges to say that such construction can be permitted anywhere in the market area for the facility of the agriculturists which ultimately will benefit the traders also, then the whole concept of correlation of fee and its character of having an element of quid pro quo will dwindle down and become an empty formality." 9. The allegations, therefore, are not sufficient to clothe the Samiti with power to charge fee unless it is established that they have constructed roads in the market yard. 10. So far as future rendering of service is concerned it again cannot be an excuse for charging fee. It has to withstand the same test. The main plank of defence is that money is required for acquiring land. It was not denied by the learned Counsel for Mandi Samiti that the land which has been or is being acquired for this purpose is outside the Market yard. What is urged is that this was one of the purposes on which fund of Samiti could be spent as is clear from S. 19 (vi) of the Act. It was not denied by the learned Counsel for Mandi Samiti that the land which has been or is being acquired for this purpose is outside the Market yard. What is urged is that this was one of the purposes on which fund of Samiti could be spent as is clear from S. 19 (vi) of the Act. It may be pointed out that S. 16 empowers the Committee to enforce the provisions of the Act, rules and bye-laws in the Market area and provides facility for sale and purchase of agricultural produce. Sub sec. (2) specifies the function it can perform in market yard. The construction contemplated in S. 19 (vii) is in the Market yard or sub-market yards. The charging of fee should therefore, be correlated to proposed construction of shops etc. in Market yard. Even assuming that the Samiti may opt to construct another Market yard in Market area and may charge fee for the same but it cannot be done unless it is declared as Market yard. We are not impressed by the submission that fee may be charged, Land may be acquired and the declaration u/s 7 may take place subsequently. In that case it would be charging fee for a purpose not enjoined by the Act. It is further doubtful whether the Mandi Samiti can utilise the fund collected under power conferred on them to develop huge commercial complexes. The fee is not tax. It cannot be charged to augment general revenue. It has to be correlated with its payer. Some benefit must be conferred on him. The charging of fee is not perennial. Once the purpose and objective for which it is imposed is achieved it has to be discontinued. Then it is alleged that Mandi Samitis are constructing huge buildings and selling them to big traders who in some cases are purchasing them also. The Mandi Samitis are not to work as business houses. They have to regulate the business only. 11. In Puri's case, (AIR 1980 S C 1008) the Supreme Court rejected Haryana Marketing Board's contention that rendering of services could be correlated to those on whom the ultimate burden falls. It was held (at p. 1015) : "In our opinion this argument is neither logical nor sound. The impost of fee and the liability to pay it is on a particular individual or a class of individuals. It was held (at p. 1015) : "In our opinion this argument is neither logical nor sound. The impost of fee and the liability to pay it is on a particular individual or a class of individuals. They are under the obligation to submit accounts, in turns or the like to the authorities concerned in cases where quantification of the amount of fees depends upon the same. They have to undergo the botherations and harassments, sometimes justifiably and sometimes even unjustifiably, in the process of discharging their liability to pay the fee. The authorities levying the fee deal with them and realise the fee from them. By operation of economic laws in certain kinds of impositions of fee the burden may be passed on to different other persons one after the other." It is further held (at p. 1015): "It is axiomatic that the special service rendered must be to the payer of the fee. The element of quid pro quo must be established between the payer of the fee and the authority charging it. It may not be the exact equivalent of the fee by a mathematical precision, Yet, by and large, or predominantly, the authorities collecting the fee must show that the service which they are rendering in lieu of fee is for some special benefit of the payer of the fee." The Hon'ble Court considered its earlier decision in Hingir Rampur Coal Co. Ltd. v. State of Orissa, AIR 1961 S C 459 and explained the observation made at page 464 to the effect, "If specific services are rendered to a specific area or to a specific class of persons or trade or business in any local area, and as a condition precedent for the said services or in return for them cess is levied against the said area or the said class of persons or trade or business the case is distinguishable from a tax and is described as a fee," by saying that, "the above passage does not mean that the service rendered is unconnected with or not meant for the payer of the fee." It is, therefore, not open to opposite party to argue that if services are rendered to a specific area or a specific class of persons or trade the imposition shall be justified even if special benefit to the individual namely, the person who pays the fee is not established. To this extent the earlier view has been diluted. 12. Still the question is, can the demand be quashed because the opposite party is not rendering any service or special benefit to petitioners at present? In Hingir Rampur Coal Co. case, (AIR 1961 S C 459) (supra) it was held by the Hon'ble Court, (at p. 464) "In regard to fees there is and must always be correlation between the fee collected and the service intended to be rendered." This was applied by this Court in Special Appeal No. 280 of 1972 and connected Appeals, Mangali Prasad Kamta Prasad v. Krishi Utpadan Samiti, decided on 23-11-1972 : (reported in 1973 Tax L R 2372 at p. 2379) and it was held :- "the fee can be levied and collected for services intended to be rendered, the public authority may commence rendering service after the fee is recovered and not before." Therefore, on future rendering of service the fee can be charged but as has been held in Puri's case (AIR 1980 S C 1008 at p. 1023):- "That the services rendered to the licensees must be in relation to the transaction of purchase or sale of the agricultural produce. That while rendering services in the market area for the purpose of facilitating the transactions of purchase and sale with a view to achieve the objects of the marketing legislation it is not necessary to confer the whole of the benefit on the licensees but some special benefits must be conferred on them which have a direct, close and reasonable correlation between the licensees and the transactions." It will, therefore, have to be seen in each case whether the intended service to be rendered in future shall have any correlation with payer. 13. Before taking up the next point we consider it necessary to point out that S. 16 of the Act gives in detail the duties and functions which a committee is under obligation to perform. Levy of fee for similar duties has been upheld in Puri's case (AIR 1980 S C 1008). We may not, therefore, be understood as laying down that those Samitn which are performing their functions in accordance with law are precluded from charging the fee in exercise of power under S. 17 of the Act. 14. Levy of fee for similar duties has been upheld in Puri's case (AIR 1980 S C 1008). We may not, therefore, be understood as laying down that those Samitn which are performing their functions in accordance with law are precluded from charging the fee in exercise of power under S. 17 of the Act. 14. But one thing is certain that the Samil cannot treat the collection of fee as tax, it cannot go on collecting irrespective of necessity and spending it at will. Expenditure of the Market committee fund, established U/ s 19 of the Act has to be for purposes enumerated in it. We have already pointed out that this power cannot be extended for spending the fund on constructions outside market yard. Sub-cl. (vi) providing for expenditure, `on cost of land or buildings acquired for the purposes of this Act,' has to be read along with cls. (vii) and (ix) of sub- sec. (2) of S. 16 which empowers the Committee to provide amenities and constructions in the Market or sub-market yard. If a committee utilises the fee levied and collected under S. 17 (iii) for purposes for which fee cannot be realised, it can be prevented from doing so and a direction can be issued to it to utilise for permissible purpose only. It can be prohibited also if the court is satisfied that the amount already accumulated is beyond the element of quid pro quo in relation to future realisation as well. We may, however, hasten to add that the demand cannot be quashed merely because the collections were for purposes permissible and impermissible both. That does not make the levy bad. 15. Coming to the question of non- applicability of Section 17 of the Act to petitioners it is necessary to quote sub-cl. We may, however, hasten to add that the demand cannot be quashed merely because the collections were for purposes permissible and impermissible both. That does not make the levy bad. 15. Coming to the question of non- applicability of Section 17 of the Act to petitioners it is necessary to quote sub-cl. (b) of S. 17(iii) which runs as under:- "(b) market fee, which shall be payable on transaction of sale of specified agricultural produce in the market area at such rates, being not less than one per centum and not more than one and half per centum of the price of the agricultural produce so sold, as the State Government may specify by notification, and such fee shall be realised in the following manner: 1) if the produce is sold through a commission agent, the commission agent may realise the market fee from the purchaser and shall be liable to pay the same to the Committee; 2) if the produce is purchased directly by a trader from a producer the trader shall be liable to pay the market fee to the Committee; 3) if the produce is purchased by a trader from another trader, the trader selling the produce may realise it from the purchaser and shall be liable to pay the market fee to the committee; and 4) in any other case of sale of such produce, the purchaser shall be liable to pay the market fee to the Committee. In Ram Chandra's case (1980 All L J 490 (S C)) (supra) it has been held; (at p. 500) : "All the four clauses of cl. (b) are mutually exclusive. If the produce is purchased from a producer directly the trader shall be liable to pay the market fee to the Committee in accordance with sub-cl. (2). But if the trader sells the same produce or any product of the same produce to another trader neither the seller-trader nor the purchaser-trader can be made to pay the market fee under sub-cl. (3). So far the position was not disputed by the Market Committee, rather it was conceded, and in our opinion, rightly." Petitioners in Writ Petition Nos. 2109 and 2110 are wholesalers. It is admitted that their case could be covered under cl. (3) only. 16. The taxable event under the clause is sale by a trader to another trader. Trader has been defined in sub-cl. 2109 and 2110 are wholesalers. It is admitted that their case could be covered under cl. (3) only. 16. The taxable event under the clause is sale by a trader to another trader. Trader has been defined in sub-cl. (y) of S. 2 to mean : "a person who in the ordinary course of business is engaged in buying or selling agricultural produce as a principal or as a duly authorised agent of one or more principals and includes a person, engaged in processing of agricultural produce. The liability to pay the fee could therefore, arise only if the sale was made by petitioners to another trader. The petitioners claim to be importers of rice whereas according to opposite parties the purchases were made in the Market yard itself. According to learned counsel for Mandi Samiti as sale of less than a quintal by wholesaler is prohibited, and normally a consumer would not purchase this much, a presumption arises that sale was made to trader. We are afraid there is no warrant for this submission. Neither the Act nor rules provide for any such presumption. Nor is there any merit in the submission that the word purchaser should be read as including consumer as such because it refers to, purchases by a trader used in earlier part. The purchase or sale to consumer is not covered in this clause also because all such transactions shall be covered in residuary cl. (4). Therefore, no demand can be made by a trader unless it is found that it had purchased the produce from another trader. 17. It was also argued by the learned counsel for petitioners that in absence of any machinery for levying and collecting the levy the provisions of the Act should not be implemented. The controversy, however. stands concluded in view of the decision by Supreme Court in Ram Chandra's case (1980 All L J 490 at p. 499) (S C) : "But it is not correct to say that in absence of such a machinery no market fee can be levied or collected. The controversy, however. stands concluded in view of the decision by Supreme Court in Ram Chandra's case (1980 All L J 490 at p. 499) (S C) : "But it is not correct to say that in absence of such a machinery no market fee can be levied or collected. If a dispute arises then in the first instance the Market committee itself or any Sub-Committee appointed by it can give its finding which will be subject to challenge in any court of law when steps are taken for enforcement of the provisions for realisation of the Market fee." It was then urged that only those transactions of sale give rise to liability of market fee under S. 17(iii) (b) of the Act which take place according to R. 76 framed under the Act. This contention was repelled by a division bench of this Court in Special Appeal No.418 of 1971 decided on 9-12-1971 : (Reported in 1972 All L J 591). We are in respectful agreement with it. The chargeability of fee depends on sale by a trader to trader. If that is established then the levy cannot be struck down because sale did not take place by auction. 18. Having disposed of the submissions which were general in nature we now take up individual petitions. In Civil Misc. Writ Petition Nos. 487 of 1974 and 5020 of 1977 filed by Rice Millers it was urged that their mills are situated outside the market yard. Therefore, there is no question of rendering any service. The learned counsel pointed out in case of Chandra Rice Mill the State went to the length of declaring the premises of petitioner itself as Market yard. Such declaration according to him was illegal and violative of S. 7 of the Act. The learned counsel urged that mere declaration of market yard was not sufficient as the Mandi Samities are not capable of rendering any service in present or in future to the Mills. The question whether any service is being rendered or not apart from being legal question, is a question of fact. It has not been decided or adjudicated upon by the Mandi Samities as yet. The question whether any service is being rendered or not apart from being legal question, is a question of fact. It has not been decided or adjudicated upon by the Mandi Samities as yet. In Ram Chandra's case, (1980 All L J 490) (S C) it was held by the Supreme Court `that even though no machinery was provided yet the Mandi Samities are competent to adjudicate all such disputes which may then be decided by the High Court'. It is, therefore, expedient to direct the Mandi Samities that it may consider whether any service is being rendered to the Mills which have been declared to be the Market yard. 19. It was also urged that petitioners purchased paddy from within the market area and also from places outside. As the paddy which was imported was mixed with the paddy on which fee has already been paid, the ratio of rice thus produced could not be found out and, therefore, the Mandi Samitis could not levy any fee. There appears to be no substance in this submission as the petitioners are expected to maintain accounts from which they can conveniently point out the quantity paddy which has been mixed with the quantity of other paddy which has already suffered the fee. From this it can be found out how much rice was produced in the light of procurement principle from paddy. 20. As regards the petitions of whole salers when these petitioners had come earlier for hearing we had directed the Mandi Samitis to adjudicate whether any service was being rendered and whether the petitioners were carrying on business so as to attract the levy under S. 17(b). The Mandi Samitis have decided it and the order has been filed along with the supplementary affidavit. The petitioners do not appear to have participated. Their grievance is that they were not afforeded any opportunity by the Mandi Samiti. On the other hand according to Mandi Samiti the petitioners did not co-operate in spite of the orders passed by this Court. We have gone through the supplementary affidavits, counter affidavit and rejoinder-affidavit filed to it. We have also gone through the orders passed by the prescribed authority. We are constrained to say that the prescribed Authority took it for granted that the petitioners are liable to pay the fee. It has not afforded opportunity as contemplated in the Act. We have gone through the supplementary affidavits, counter affidavit and rejoinder-affidavit filed to it. We have also gone through the orders passed by the prescribed authority. We are constrained to say that the prescribed Authority took it for granted that the petitioners are liable to pay the fee. It has not afforded opportunity as contemplated in the Act. The letter which was sent by it to the petitioners to produce the documents was vague. It did not specify the registers which it required for examination. During hearing the petitioners produced the documents which were being demanded by the prescribed Authority and it was demonstrated that these documents were already with them. In these circumstances, we are of the opinion that order passed by the prescribed Authority. cannot be maintained. 21. In the written notes submitted by learned counsel for parties, which was accepted on their request, the petitioners challenged the levy being hit by Articles 14 and 301 of the Constitution. This was, however, not raised at the time of hearing. Therefore, we do not take any notice of it. Apart from it the constitutional validity of the impost having been upheld by Supreme Court it is not open to the petitioners to challenge it on other grounds in this Court. 22. Before parting with these petitions we think it necessary to highlight that under S. 26-A of the Act, State Agricultural Mandi Board has been established to supervise and control the working of the Committee. Under sub-cl (x) of S. 16 a Committee is required to prepare annual budget of estimated collections and expenditure. It has to be scrutinised by the Board u/s 26-b. While exercising such power the Board can ascertain whether realisations are being made in accordance with law and expenditure is on permissible heads. From the counter- affidavits filed on behalf of Samitis the state of affairs does,not appear as it should be. May be because, as pointed out by the learned counsel for petitioners, that, despite the enforcement of Act since 1964 there are no elected bodies. But that can be no justification for not acting in accordance with law. If it is not being done we trust that the samitis shall in future prepare their annual budget showing not only income and expenditure but also the collections u/s 17 and their expected utilisation to enable the Board to discharge its duty under S. 26. But that can be no justification for not acting in accordance with law. If it is not being done we trust that the samitis shall in future prepare their annual budget showing not only income and expenditure but also the collections u/s 17 and their expected utilisation to enable the Board to discharge its duty under S. 26. The Board shall examine the collections actual or estimated in the light of the two Supreme Court decisions. It would be then possible for this Court in case of challenge to decide whether levy satisfies the test of quid pro quo. 23. One thing we may also point out, that as far back as 25-3-1980 the Supreme Court while repelling the contention that in absence of machinery for collecting, the levy was invalid, observed (at p. 499) : But it is high time that Market Committee should be constituted in a regular manner on a permanent basis in accordance with the provisions contained in Chapter III of the Act." More than a year has passed but probably a year is short for the State machinery to set the rules in order. Such observations by courts are meant to be implemented and not for filling pages of law reports. During the course of hearing we had apprised Mr. Advocate General of this. We hope that the State Government will not wait till a direction is issued by this Court. 24. In the result all the petitions succeed and are allowed. The orders dated 24th/25th Sept., 1977 passed by prescribed authority in Civil Misc. Writ Nos. 2109 and 2110 of 1977 are quashed. A direction is further issued to opposite parties in all the petitions not to enforce the impugned demand without adjudication of petitioners' claim that no fee can be charged from them as no service is rendered. In petitions Nos. 2109 and 2110 it shall further be decided whether fee can be charged from them u/s 17(iii) (b). When deciding its claim the authorities shall bear in mind the law as laid down by the Supreme Court and explained by this Court in these petitions. Petitioners shall be entitled to costs.