JUDGMENT R. M. Sahai, J. - Despite full throated argument entertained by Honble Supreme Court in Ram Chandra Kailash Kumar v. State, AIR 1980 SC 1124 even on points which were not argued in this court in anxiety to narrow down controversy and, enable Marketing Committee to implement the law as far as possible large number of traders carrying on business of sale and purcha e of specified agricultural produce within meaning of U. P. Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter referred to as Act) have approached this Court, again, under Article 226 of the Constitution of India and have claimed that the market fee at the rate of 1% does not stand validly imposed. But the main thrust or attack is founded on the observation in concluding part of Ram Chandra's (supra) judgment 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 open to prayer of fees to re agitate the matters in the High Court. 2. For these spate of petitions not only petitioners but Mandi Samitis are equally responsible. Anxiety of petitioners to avoid payment of fee on one or the other pretext is equally matched by opposite parties by widening their net and roping in persons, commodities and transactions which by most liberal construction may not be covered in it. May be because for more than ten years these Samitis are being run by instrumentalities of State, under Ordinance issued as lar back as 1972 and extended from time to time, instead of elective and representative body envisaged by the Act totally unaware of local conditions and primarily concerned with raising and collecting money. 3. But that being a matter of policy we leave it at that and proceed to examine on merits the arguments advanced by Sri S.P. Gupta, the learned Counsel for petitioners in some of the petitions on the two general aspects pointed out above which of course was adopted by all other counsel appearing for other petitioners. He urged that the Act contemplated that fee shall be imposed by the Marketing Committee in Market Area, or Market Yard or Sub-market yard on specified agricultural produce. He urged that the Act contemplated that fee shall be imposed by the Marketing Committee in Market Area, or Market Yard or Sub-market yard on specified agricultural produce. According to him even after substitution of Section 17(iii)(b) by U. P. Amendment Act 7 of 1978 providing for rate of fee and the person from whom it has to be realised it did not bring about any change as the words, levy and collect, used in the unamended Section were continued by Legislature. According to him it is power of the Committee and not of the State Government. And in absence of exercise of this power by the Marketing Committee the fee cannot be said to have been levied as Section 17(iii)(b) is not a charging section nor does it create any liability but is an enabling provision empowering committee to discharge the function of imposing fee. The learned Counsel submitted that word levy means imposition. It may mean assessment as well. But in the Legislative back ground and setting it cannot be understood in any sense except imposition. Support was drawn from Articles 256, 268, 269 and 270 of Constitution of India. Learned Counsel developed this argument further and urged that the legislative mandate to Mandi Samitis is to realise fee, the essential element of which is rendering of service to prayer of fee. What service shall be rendered, to which class of persons and for which specified agricultural produce cannot be determined by State Government as it cannot be assumed to be aware of local conditions etc. Imposition, according to learned Counsel, in the Scheme of Act has to be by Marketing Committee otherwise uniform levy by State Government irrespective of varying facts and circumstances and requirement of different market area of different Samitis may amount to treating unequals as equals, therefore, unconstitutional as laid down in New Manek Chowk Spinning and Weaving Mills v. Municipal Corporation, AIR 1967 SC 1801 . 4. In order to appreciate this argument it is essential to refer to Section 17 before and after amendment and Rule 66 framed thereunder. Relevant portion of the Section reads as under : "A Committee shall, for the purposes of this Act, have the power to - (i)................ (ii)............... 4. In order to appreciate this argument it is essential to refer to Section 17 before and after amendment and Rule 66 framed thereunder. Relevant portion of the Section reads as under : "A Committee shall, for the purposes of this Act, have the power to - (i)................ (ii)............... (iii) levy and collect : (a) such fees as may be prescribed for the issue or renewal of licences, and (b) market fees on transactions of sale or purchase of specified agricultural produce in the Principal Market Yard and Sub-market Yards from such persons and as such rates as may be prescribed, but not exceeding one-half per centum of the price of the specified agricultural produce sold or purchased therein : Provided that no market fee shall be levied or collected on retail sale of any specified agricultural produce where such sale is made to the consumer. (iv) ................ (viii) ............................................. " The section underwent changes from time to time and eventually in the year 1970 sub-clause (b) was substituted by a new sub-clause retrospectively with effect from 12th June, 1973 which runs thus j "170. Power of the Committee - A Committee shall for the purposes of this Act, have the power to - (i)............... (ii) ................ (iii) levy and collect: (a) ................ (b) Market fees which shall be payable on transactions of sale of specified agricultural produce in the market area at such rate, being not less than 1 per centum and not more than 1J per centum of the price of the agricultural produce so sold, as the State Government may specify by notification, and such fees shall be realised in the following manner 1 - (1) If the produce is sold through a Commission agent, the Commission agent may realise the market fees from the producer 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 fees to the Committee. (3) If the produce is purchased by a trader from another trader, the trader selling the produce may realise it from purchaser and shall be liable to pay the market fees to the Committee, and (4) In any other case of sale of such produce, the purchaser shall be liable to pay the market fees to the Committee. (iv) ............... (viii) ................................. 5. (iv) ............... (viii) ................................. 5. Rule 66 empowered the Committee, to levy and collect fee on specified agricultural produce brought and sold in the market yard at such rates as may be specified in the bye-laws but not exceeding one half per centum of the price of the specified agricultural produce, provided that the market fee shall be payable by the seller, provided further that no market fees shall be levied and charged prior to the date on which provisions of Section 10 of the Act are enforced. 6. A perusal of amended and unamended Section 17 leaves hardly any room for doubt that the power under the Act to levy and collect fee was and is of the Marketing Committee and not of the State Government. The only change that has been effected is that the Legislature itself has fixed the rate and four class of,mutually exclusive persons from whom it could be realised. But whether in a particular Mandi Samiti a Marketing Committee shall enforce these provisions in respect of specified agricultural produce is still left to be performed by the Committee itself. If the word, levy used in the section as it stood prior to 1978 had to be understood in the sense of empowering Marketing Committee to impose and not assess only then there appears no reason to hold that after amendment imposition has been done by the State Government when it issued the notification and the Marketing Committee are now only to assess the fee. When the Legislature while substituting Section 17(iii) did not choose to amend Section 17(i) and continue the words levy and collect it has to be assumed that it intended that these words should be understood in the same sense in which (they were understood earlier. 7. Sri B. D. Mandhyan and Sri Ashok Nigarn the learned Counsel for Mandi Samitis in most of the petitions attempted to meet the argument of failure to validly impose the fee by Marketing Committee both legally, technically and factually. They urged that after amendment of Section 17 the levy was automatic. According to them once rate and persons were specified by the section itself then Rule 66(1) became redundant and the power of Marketing Committee shall be deemed to have been performed by the State Government. The learned Counsel maintained that these Committee under the Act were to exercise delegated authority. According to them once rate and persons were specified by the section itself then Rule 66(1) became redundant and the power of Marketing Committee shall be deemed to have been performed by the State Government. The learned Counsel maintained that these Committee under the Act were to exercise delegated authority. But if the principal body itself exercise the power then the question of exercise of power by delegate did not arise. According to learned Counsel the word levy after amendment has to be understood as empowering Marketing Committee to quantity and realise only. 8. The argument is no doubt attractive but it does not impress us. By prescribing rate and persons from whom it has to be realised the fee cannot be said to have been imposed. It may be levied or discontinued according to exigencies prevailing in a Market Area. Its imposition and continuance has to be tested in relation to quid pro quo. It cannot be, therefore, automatic. 9. Sri Mandhyan relied on paragraph 19 in Atma Bam Raian Lal v. State, 1979 ALJ 126 and urged that the Division Bench having held that Section 17 stood on its own and appeal against it having been dismissed by the Supreme Court alongwith Ram Chandra's case (supra) the argument of imposition advanced by petitioners was misconceived. We are afraid the argument proceeds on misapprehension. The observation by the Division bench, that Section 17(iii) (b) of its own force, entitles the Market Committee to levy and collect fees in the entire market area was made to repel the argument that unless notification under Section 11 was issued no market fee could be charged from traders in Market Area. 10. Learned counsel then relied on observations in Ram Chandra's case (supra) that, yet charging of fee at 1% as is being charged throughout the State of Uttar Pradesh by all the Marketing Committees is not illegal, and urged that it was declaration of law under Article 141 of the Constitution of India, therefore, this court was bound by it and was precluded from examining the validity of imposition from any angle. It was also urged that many of the petitioners being party before Supreme Court they were debarred on principle of constructive res judicata from challenging the demand notices, on this score. It was also urged that many of the petitioners being party before Supreme Court they were debarred on principle of constructive res judicata from challenging the demand notices, on this score. It is not necessary for us to express any opinion on these submissions as we are satisfied that the alternative submission made on behalf of Mandi Samitis that the fee was in fact imposed by each Committee appears to be well founded. 11. In some of the counter-affidavits and supplementary affidavits filed by Mandi Samitis it has been stated that in some in September, 1973 and March, 1978 letter was issued by Director of Mandi Parishad directing every Marketing Committee to charge fee on sale and purchase of specified agricultural produce at 1%. This letter was put by the Secretary of the Samitis before the Chairman, a Sub-Divisional Officer, who as delegate of District Magistrate, exercising powers of Marketing Committee adopt the same by a resolution, therefore, the fee stood validly imposed. Statement was made at the bar also that similar resolutions have been passed by every Marketing Committee. According to learned Counsel for, the petitioners even if it was assumed to be correct it was not sufficient under law as it was necessary for the Marketing Committee to frame the bye-law under Section 39 of the Act read with Rule 40 and get it approved by the Board under Section 26-L. The learned Counsel went on to argue that even in cases where consent of the Agricultural produce Marketing Board had been obtained to the framing of the bye-law the Marketing Committee merely became entitled to levy and collect market fee but before it could do so it had to do something by way of levying the same market fee before it could take steps to collect the same. We do not find any merit in it. It is not the form of imposition but the substance of being imposed that is material. If the Director of Mandi Parishad issued circular imposing fee of 1% and that circular was adopted by each Samitis we do not find that imposition suffers from any infirmity. By adopting circular the Mandi Samiti shall be deemed to have exercised its power under Section 17. 12. If the Director of Mandi Parishad issued circular imposing fee of 1% and that circular was adopted by each Samitis we do not find that imposition suffers from any infirmity. By adopting circular the Mandi Samiti shall be deemed to have exercised its power under Section 17. 12. We now come to the most contentious submissions of petitioners that the Mandi Samitis are not rendering any service as explained by Supreme Court in Kewal Krishna v. State of Punjab, AIR 1980 SC 1008 , therefore, they were not entitled either to levy or collect fee. The argument has been put from many facets principal of them being that these marketing committees are not rendering any service to the payer of fee but are constructing huge market complexes on enormous costs and are either letting those shops or are setting it on hire purchase basis. This according to learned counsel cannot amount to rendering of service which is very basis for charging fee. It was also urged that charging of fee for raising constructions outside the Market Yard cannot be deemed to be rendering of service to traders of Market Yard, therefore, charging of market fee for such purpose cannot be considered to be valid. In specific petitions it has also been urged that the nature of business carried on by them were such that the Market Committee could not render any service either at present or in future. 13. When Ram Chandra's case was decided it was observed by Honble Supreme Court that, in regard to quid pro quo in relation to fee levied under Act the decision was, to be settler and the authorities and all others were to guided by and follow the said decision in the matter of levy and utilisation of the Market fee collected. The arguments advanced, therefore, have to be considered in the light of seven principles called out in Puris case (supra) which in turn formed foundation for Ram Chandra's decision (supra). These principles indicate that basis character of the fee as a charge for special service rendered to the payer should not be lost. The arguments advanced, therefore, have to be considered in the light of seven principles called out in Puris case (supra) which in turn formed foundation for Ram Chandra's decision (supra). These principles indicate that basis character of the fee as a charge for special service rendered to the payer should not be lost. T he crux was noted by the Court itself in Ram Chandra's case (supra), when it observed at page 1129, as pointed out recently by a Constitution Bench of this Court in Kewal Krishnas case (supra) the fee realised from the payer of the fee has by and large to be spent, for his special benefit. What constitutes special service, whether it is remote or close whether it bears any nexus between the individual and the public body shall depend on provisions of Act and the manner in which it is sought to be achieved. The word individual so should not, be understood in the literal sense The observation at page 1016 in Kewal Krishna Puris case (supra) that, generally and broadly speaking it must be shown with some amount of certainty, reasonableness preponderance of probability that quite a substantial portion of the amount of fee realised is spent for special benefit of payers has been explained by Honble Court itself at page 1016 when it said, service rendered to specific area or to a specific class of trade or business in any local area must mean, and cannot but mean, that it is for the special benefit of persons of that area. If there was any doubt that service to individual has not to be understood in literal sense then it was removed when in Ram Chandras case the Honble Court while repelling the argument of Paper Mill that the Marketing Committee was not empowered to realise market fee as it did not render any service in Jungle area from where the wood was collected observed : "The question of quid pro quo and service cannot be decided by a dichotomy of service to every payer of fee as held by this court in Kewal Krishna Puris case (supra). The matter has to be judged in broad sense and not in the sense of rendering service to every payer of the individual fee, 14. The matter has to be judged in broad sense and not in the sense of rendering service to every payer of the individual fee, 14. In Hindu Religion Endowments Madras v. Lakshmindra Therotha Swamior of Sri Shetier, AIR 1954 SC 388 , the fee was struck down because it was made to depend upon capacity of payer and not upon the quantum of benefit that was, supposed to be conferred. That is there must be corelation between fee and benefit. And the yard stick for rendering service by Marketing Committees to payer of fee has been determined by Supreme Court and it has been held that, good and substantial portion of the amount collected on account of fee may in the neighbourhood of two thirds or three fourth must be shown with reasonable certainty as being spent for rendering service to those on whom falls the burden of the fee, [Principle No. (vii) in Kewal Krishna Puris case] (supra). 15. At this stage we may notice scheme of the Act as unfolded from various provisions to find out the purpose of levying fee, the manner of its expenditure etc., as it shall help in resolving the controversy if the Mandi Samitis are rendering service as contemplated under the Act. 1 he enactment was enforced, to provide for regulation for sale and purchase on agricultural produce and for the establishment, super intendance, and control of markets, in the State. This was sought to be achieved by reducing multiple trade charges, levies and ex actions, charged from producer seller, and by contemplating, to provide for verification of accurate weights and scales, establishments of Marketing Committee in which the agricultural producer was to have his representative and to provide for amenities in the market and arrange for better storage facilities etc. 16. For implementation of the objective and to have effective control the Act envisages declaration of Market Area under Section 6 if the State Government was of opinion that it was necessary or expedient in the public interest to regulate the sale and purchase of any agricultural produce in any area. The Market Area could be a district or more than one district or comprising of many Gaon Sabhas as is clear by proviso to sub-section (7) of the Act. The Market Area could be a district or more than one district or comprising of many Gaon Sabhas as is clear by proviso to sub-section (7) of the Act. The effect of such declaration is mentioned in Section 9(1) to (a) that from the date of declaration of an area as Market Area no local body or other person shall, within the Market Area set up, establish or continue or allow to set up, establish or to continue any place for the sale, purchase, storage, weigh meant or processing of the specified agricultural produce, except under and in accordance, with the conditions of a licence granted by the Committee. In other words any person shall not be permitted to carry on any business except and in accordance with licence granted to him. Because only then it could be possible for Marketing Committee constituted under Sections 12 and 13 of the Act to check and verify weights, measuring instruments used in an area and enforce provisions of U. P. Weights and measures Act, 1969 [Section 16(iv)] and collect and disseminate information as may be of advantage to the producers and other persons engaged in the sale or purchase of specified agricultural produce and in particular keeping itself informed of the prevailing prices of such agricultural produce, place where it can be profitably exported and from where it can he economically imported in the Market Area [Section 16(v)]. Mere declaration of Market Area comprising of more than a district would not have served the purpose as sale and purchase in entire area could not be effectively controlled The Legislature, therefore, empowered State Government under Section 7 after declaration of market area to declare such portion of the Market Area as may be specified as the Principal Market Yard and such other portion as may be specified as sub-market yard provided that the whole of the Principal Market Yard shall be located within limits of one district. In Ram Chandra's case it has been held that although the Market fee can theoretically be levied in the entire Market Area but actually the Legislature contemplated that it shall be confined to transactions of sale and purchases carried on in the Market Yard. In Ram Chandra's case it has been held that although the Market fee can theoretically be levied in the entire Market Area but actually the Legislature contemplated that it shall be confined to transactions of sale and purchases carried on in the Market Yard. The effect of declaration of Market Yard has also been provided in sub-section (2) of Section 9 which lays down that No person shall, in a Principal Market Yard or any Sub-market Yard, carry on business or work as a trader, broker, commission agent ware houseman, weigh-man, Palledar, or in such other capacity as may be prescribed, in respect of any specified agricultural produce except under and in accordance with the conditions of a licence". 17. A comparison of the two sub-sections of Section 9 leave no room for doubt that the business of purchase and sale under supervision and control of Mark ting Committee is contemplated to be carried on in the Market Yard. This is further demonstrated by various duties assigned to Marketing Committee by sub-section (2) of Section 16 of the Act. Sub-clauses (1) and (2) contemplate that the Committee shall ensure fair dealings between the purchasers and persons engaged in sale and purchase of agricultural produce and shall ensure prompt payment to the sellers in respect of specified agricultural produce sold by them in the Principal Market Yard or Sub-market Yard. Sub-clause (7) contemplates that the Committee shall provide suitable amenities in the Principal Market Yard and Sub-Market Yard to the producer and persons engaged in transaction of sale and purchase thereunder, and in particular to construct and repair, maintain reads, pathways, market lanes, bye-lanes, shelters, parking places, accommodation for storage, and other facilities as may be prescribed in this behalf. These subclauses leave no room for doubt that the Marketing Committee is expected to concentrate its activity in Market Yard and to raise constructions which are expected to provide facilities to the purchasers or seller of agricultural produce in the Market Yard and not in the Market Area and that is why sub-clause (11) contemplates that the Committee shall prepare plan for works proposed to be undertaken by it in a Principal Market Yard and Sub-market Yard. In fact a reading of the Section 16 indicates that so far constructions of buildings etc. In fact a reading of the Section 16 indicates that so far constructions of buildings etc. Which are expected to be of help or assistance to the put chasers or seller in the shape of shops, rest houses, road or lane it has to be in the Market Yard and not in the Market Area. This further is made clear by sub-clauses (iv) and (v) of sub-section (2) of Section 16 which have been extracted earlier. They indicate that regulatory measures such as checking and verification of weights, and measures and providing of information which shall be of advantage to the producers or seller shall be made available in the entire market area. This, however, has nothing to do with the constructions etc. Which a Committee may undertake in a Market Area. 18. It is thus clear both from provisions of the Act and the principles laid down in Ram Chandras and Puri's case (supra) that the Marketing Committee is to carry out its activities particularly of raising constructions etc. in Market Yard or Sub-Market Yard and provide facility to the traders therein except such constructions for instance approach road etc. as pointed out in Puri's case. In order to implement these the Committees have been empowered to raise found by realising licence fee and Market fee from traders under Section 17 (l)(a) and (b) and loan and assistance etc., from Government and other bodies. Under the amended Section 17(iii)(b) fee can be theoritically charged from a trader in the Market but in order to sustain in the Marketing Committee has to render facility to such trader whether individually or collectively in the Market Yard or Sub-Market Yard. 19. Inned that lighting, sweeping etc. shall be carried on by the Committee. But in most of the Mandi Samitis either such constructions are going on or they are in contemplation. In some of the counter affidavit a circular issued by Mandi Parishad after decision of Ram Chandra's case has been filed which directs the Mandi Samiti to spend 60% on the facility to the traders. Even then levying and collection of fee has been attempted to be defended, even when specific challenge has been raised that no service is being rendered, on general allegations and no effort has been made of justifying it with facts and figures. Even then levying and collection of fee has been attempted to be defended, even when specific challenge has been raised that no service is being rendered, on general allegations and no effort has been made of justifying it with facts and figures. In one of the budgets filed it has been stated that that lakhs have been set apart for building advance to the employees of Samiti. How can such expenditure be justified on quid pro quo On the last day of argument Sri Mandhyan produced before us Uttar Pradesh Agricultural Markets Project submitted by State Agricultural Produce Markets Board in 1981 and admitted by Europeon Economic Community for Assistance and urged that requirements of Market Yard for different places has been worked out in detail. It shows that Markets Yards are to be constructed at huge cost. They are designed for the benefit of traders in general. Therefore, the argument of petitioners that by constructing market yard no service is being rendered or the funds realised are in surplus is meaning leis. 20. We have looked into this project and as it appeared to be instructive we are taking notice of it. It has eight chapters dealing with project its organisation and management finances and justification and benefits etc. In the introduction it is mentioned that the increase in production of food-grains in the State high lighted the various problems faced by the producer sellers in the assembling markets of the State which necessitated and the need of regulating the marketing process and provide adequate and efficient marketing infra structure so that the producers are assured of a remunerative price and the increasing trend of agricultural produce is maintained. It further provided that the working in the regulated market in the State during last few years has highlighted the fact that it was not feasible to bring orderly conditions of marketing without providing the net work of modern well laid out market yards, with this view the projects was formulated for the construction of new Market yards in 60 Agricultural Markets and 55 sub markets. At pages 79 and 127 of the report the details of norms adopted in preparation of the project and basic requirements for different market yards have been mentioned. According to this report the market yards shall be of three different categories. At pages 79 and 127 of the report the details of norms adopted in preparation of the project and basic requirements for different market yards have been mentioned. According to this report the market yards shall be of three different categories. A, B and C depending on the annual arrivals, 1 be acquisition of land shall also depend on the category of Market yards. Similarly constructions of auction places, shops, godowns, storage, Farmers rest houses, Parking places, Banks, Post office, latrines, Baths, Urinals etc. shall also depend on it. In category A the shops to be constructed shall be of larger size and greater in number whereas in category B it shall be of smaller size and fewer in number. The project contemplates in detail, the construction of storage godown, sundry shops, check posts, Bank, police out posts, watch and Ward Quarters, Canteen, Cart, man shed etc. It gives out in detail the size and capacity of different constructions and the purpose for which it shall be constructed. The expected expenditure to be incurred on these constructions have also been mentioned in detail. The project at page 18 contemplates that 38.76 per cent of the total costs of project shall be met by Europeon Economic Community and 4.15 per cent by loan from State Agricultural Board and the rest shall be raised by Regional Marketing Committee from market fee, licence fee, Income from sale forms, interest on deposits, subsidies from State Government and Government of India. 21. A perusal of the project shows that in respect of constructions of Market Yards nothing has been left to the Marketing Committee. It has furnished a detailed plan of constructions which should be undertaken by Marketing Committee in order to provide facilities to traders and producers. It does not contemplate huge marketing complexes for the purposes of selling the shops on hire purchase with a view to augment profit of the Marketing Committee. The loan which has been or which m3y be advanced by the European Economic Community or by the State Government or Board to the Marketing Committee is to be utilised for well-fare of the traders and producers and not for constructing palatial buildings which may be sold to affluent dealers on heavy premiums. The loan which has been or which m3y be advanced by the European Economic Community or by the State Government or Board to the Marketing Committee is to be utilised for well-fare of the traders and producers and not for constructing palatial buildings which may be sold to affluent dealers on heavy premiums. Even assuming that such constructions can be raised then 38.76% advanced by European Economic Community and 14-5, per cent advanced by the Board may be utilised for that but once the Marketing Committee intends to utilise the fee realised whether by issuing licence or by charging market fee on transactions of sale and purchase then it has to satisfy that atleast ?rd or th of the realisation so made is spend for the benefit of the payer of the fee (Principle No. 7 at page 1023 of Kewal Krishnal Puris case) (supra). 22. In many of the cases it is admitted that the Marketing Committee which is charging fee from traders of a particular Market Yard is contemplating to utilise the fee so charged on a marketing centre to be constructed outside it. It has posted a serious question whether charging of such fee can be justified on the anvil of quid pro quo principle explained by the Supreme Court in Kewal Krishna Puri's and Ram Chandras cases (supra). According to learned counsel for Mandi Samitis as Marketing Committees have been empowered under Section 16(1) to enforce the provisions of the Act they are authorised to raise constructions outside the market yard but in the market area and that would be carrying out objectives of the Act. Such constructions would be justified and fee charged from the traders and producers would be valid as after they are complete the marketing Committee would move the board which its turn shall move the State Government to declare the area as Market yard under Section 7 of the Act. Learned counsel maintained that this would be covered in the intended service to be rendered by the Marketing Committee. According to him the service may be rendered either in present or in future and even for future rendering of service a public body can charge fee. Learned counsel maintained that this would be covered in the intended service to be rendered by the Marketing Committee. According to him the service may be rendered either in present or in future and even for future rendering of service a public body can charge fee. Therefore, if the Marketing Committee of a Marketing yard levies market fee on the traders and producers with a view to construct another market yard in future outside the existing market yard but inside the market area then such levy is justified. We must confess our inability to appreciate this argument. In Puri s case (supra) it was observed at page 1024 paragraph 26 that the benefit of market fee, therefore, has to be core lated with the transaction taking place at the specified place on the market area and not in the whole of the area. While examining the provisions of the Act in Ram Chandras case (supra) the Supreme Court at page 1135, paragraph 13 of the reports observed,we have already adverted to this aspect of the matter and pointed out that transactions cannot take place in whole of the market area and although theoretically fee is chargeable the whole of the area now but actually the rules and especially the Explanation to Rule 66 indicate that the transactions do take place in the Principal Market yard or market yard of some specified place or places in a particular market area. 23. Sri Mandhyan argued that sub-clause (vii) of sub-section (2) may be read along with sub-section (1) of Section 16 where Mandi Samiti is required to render facilities for sale and purchase of the specified agricultural produce in the market area. Therefore, construction of the market yard or complex outside the principal market yard but within the market area would not be impermissible under the Act. He urged that even otherwise it is not the immediate rendering of service that is a pre-condition. According to him even if at present the construction of the market yard is within the market area that place on completion would be declared as principal market yard in respect of certain commodity. And that would be intended service permissible under the Act. Reliance was placed on observation in Civil Misc. Writ No. 8184 of 1973, U. P. Millers Association and others v. State of U. P. decided on 29-4-1977 that. And that would be intended service permissible under the Act. Reliance was placed on observation in Civil Misc. Writ No. 8184 of 1973, U. P. Millers Association and others v. State of U. P. decided on 29-4-1977 that. In our opinion, keeping in view the purpose of the Act and the functions and duties entrusted to a Market Committee it cannot be accepted that new constructions or all development works should be carried on at the site of the existing market yard only. Reliance was also placed on paragraph 23 of Vijay Cotton Traders v. State of A. P., AIR 1981 A.P. 293, wherein a Division Bench of that Court after considering Puris case held that it was not necessary for the Samiti to render service in the market area yard. 24. As regards earlier Division Bench of our Court it was decided prior to Puris case. Apart from it there can be no quarrel with the principle that another market yard can be constructed in the market area. But we are not prepared to accept the argument that fee realised from traders for acquiring land and constructing market yards without prior declaration under Section 7 is also justified. If an area has been declared market yard the Committee may be within its rights to charge fee for developing that area but the charging of fee for acquisition of land and construction of Marketing Committee on the chance that it shall be declared Market yards cannot be considered to be in furtherance of objective of Act. We have already extracted the observation of Supreme Court that benefit has to be co-related with transaction taking place at specified place. The argument that fee realised can be spent under Section 16(1) of the Act stands replied in Puris case. The Hon'ble Court did not approve Punjab and Haryana High Courts view : "that the amount of fees so collected are not to be spent exclusively for rendering services to the payers of the fees but can also be utilised for carrying out the purposes or objects of the Act under which they are levied." In view of this it is not necessary to discuss a Full Bench decision of Madhya Pradesh High Court in Banwari Lal v. State of M. P., AIR 1981 MP 220 . 25. 25. We, therefore, do not see any justification for the Marketing Committee to realise market fee from the traders carrying on business in the market yard for the purpose of constructing another Marketing centre in the market area, which has not been declared Market Yard or sub-market yard on the date when realisations are being made. We had taken similar view in M. Ashok Kumar Dinesh Chandra v. U. P. Mandi Samiti Ballia, 1981 ALJ 1014. As observed by us earlier the activity of constructions etc. by a Mandi Samiti has to be carried on in the Market or Sub-Market Yard only. It is strengthened by Marketing project prepared by State Agricultural Board extracts of which have already have been mentioned above. The argument of Sri Mandhyan and Sri Nigam that such constructions are covered in Section 16 (1) does not appeal to us. 26. Before examining each petition or group of petitions to find out if services are being rendered in the light of what we have stated above we may dispose of two other aspects which although arise in some of the petitions but are also of general importance. It was argued by Sri B. D. Agrawal that second proviso to Rule 66 extracted earlier in the judgment lays down that no market fee shall be levied and charged prior to the date on which the provisions of Section 10 of the Adhiniyam are enforced. He contended that a notification under Section 6 of the Adhiniyam declaring Muzaffarnagar Mandi as a Market area in respect of 10 specified agricultural produce was issued on 27-10-1965. Khandsari was not included of the list of agricultural produce in respect of which the Mazaffarnagar Market Area had been created. On 9th October, 1967 a notice cation under Section 10 of the Act in respect of the items specified in notification dated 27th October, 1965 was issued. It was only on 27th March, 1971 that a proposal for including Khandsari in the list of commodities dated 27th October, 1965 for which Mazaffarnagar Market area had been created was issued and the same was included in the list by a notification dated 30th September, 1973. Thereafter no notification under Section 10 of the Adhiniyam in respect of Khandsari had been issued. Thereafter no notification under Section 10 of the Adhiniyam in respect of Khandsari had been issued. Accordingly, the bar created by Rule 66 which in the context was a provision of substantive nature continued to be operative and no market fees in respect of the transactions concerning sale and purchase of Khandsari in the Market area of Muzaffarnagar could either be levied or collected by the Market Committee. Reliance was placed on M/s. Atlas Industries Ltd. v. State of Haryana, AIR 1972 SC 257. Section 10 of the Adhiniyam runs thus : "10 (1) As from the date to be notified by the State Government in the Gazette, no person shall in a Principal Market yard or sub-market yard levy, charge or realise, any trade, charges other than prescribed by rules or bye-laws made under this Act, in respect of any transaction of sale or purchase of specified agricultural produce and no Court shall, in any suit or proceeding arising out of any such transaction allow in any claim or counter-claim, any trade charges not so prescribed." 27. Notification under this section is follow up action of notification issued under Sections 6 and 7 declaring market area and specifying a portion of it as Market yard respectively. A superficial reading of the Section does lend support to the argument of Sri Agrawal. But a close scrutiny indicates that under this section what the State Government is required to do is to nominate a date for the purposes of Section 10 and to notify the same in the official gazette. The consequence of such notification is that no person can, in the Principal Market yard or sub-market yard, levy, charge or realise any charges other than those prescribed by the Rules or bye-laws made under the Act in respect of any transaction of sale or purchase of specified agricultural produce, that is, in respect of an agricultural produce mentioned in the notification under Section 6 or as modified under Section 8 [vide Section 2 (t) of the Adhiniyam. The State Government is not given an option to pick and choose from amongst the goods from those mentioned in the notification under Section 6 or as modified under Section 8 of the Adhiniyam for the purposes of Section 10. The State Government is not given an option to pick and choose from amongst the goods from those mentioned in the notification under Section 6 or as modified under Section 8 of the Adhiniyam for the purposes of Section 10. Once the State Government has notified in the official gazette the date for the purpose of Section 10, the consequences that the trader is prevented from realising trade charges other than those permitted by the Adhiniyam or the Rules in respect of transactions on all the goods specified in the notification under Section 6 or that as modified under Section 8 of the Adhiniyam would follow. Once the date has been notified the bar created by Section 0 would apply in respect of all the goods mentioned in the notifications under Sections 6 and 6 irrespective of the fact that the notification under Section 8 was issued subsequent to the date of the notification under Section 10. Under this section it is not contemplated that different notifications in respect of different agricultural produce may be issued. In the instant case it is not disputed that there was a notification under Section 10 in respect of Mazaffarnagar Mandi dated 29th October, 1967, accordingly the traders had been prevented from realising trade charges in respect of the agricultural produce mentioned in the notification under original Section 6 of the Adhiniyam or as modified under Section 8 of the Act. There being a notification under Section 10 in existence in the Market Area of Muzaffarnagar Mapi created by Second proviso to Flue 66 against levying and charging any market fees till such a notification under section had been issued does not arise. In this view of the matter it is not necessary for us to express any opinion on the question as to whether or not the second proviso of Rule 66 contravenes the provision of Section 17(iii)(b) and has become unenforceable after the said section was amended in the year 1978 with retrospective effect from 12th June, 1973. 28. We now come to the second submission which was advanced by Sri R. P. Goyal that sale of specified agricultural produce covered by the proviso to Section 17 (iii) (b) is absolutely exempt. But there being no rule for timber dealers and rules which are in existence being inapplicable to them every sale made by a timber dealer irrespective of quantity etc. But there being no rule for timber dealers and rules which are in existence being inapplicable to them every sale made by a timber dealer irrespective of quantity etc. shall be subjected to fee whereas in similar circumstances dealers in other goods shall have the benefit of retail sale. 29. Proviso to Section 17 extracted earlier shows that before any sale may be covered in it must be retail sale to consumer. What is retail sale has been defined in Section 2 (q). In relation to any specified agricultural produce means sale of that produce, not exceeding such quantity, as a Market Committee may specify in its bye-laws to be the limit of retail sale. Admittedly, the quantity for retail sale has been fixed by State Government by a notification at 10 quintals. Sales of timber, barring fuel wood, either at whole sale or retail sale or at any stage does not take place except by measurement. The notification issued by State Government, therefore, fixing retail sale at 10 quintals becomes inapplicable to sale of timber. And every sale of whatever quantity becomes exigible to fee. This could not have been the intention. If the argument of learned counsel for Mandi Samitis that the State Government intended that no sale of timber be exempt from payment of fee is accepted it shall result in great hardship and even may lead to discrimination, as one cubic foot of timber by a trader to consumer may not be exempt whereas sale of certain items, the cost of even one quintal of which may be much more than the timber of entire tree may be exempt. We do not think that such staggering disparity must have been contemplated. To us it appears this was omission. 30. Nor can we infer from this, as suggested, that no sale in retail was intended and every sale of whatever quantity was liable to be subjected to fee. Provided added to Section 17 [iii](b) is in nature of exception. It has to be read alongwith substantive provision. Both have to operate together The Legislative intent of exempting transaction of sale in retail to consumer cannot in our opinion be frustrated by inaction or omission on part of Mandi Samiti by not fixing the quantity of retail sale. 31. Provided added to Section 17 [iii](b) is in nature of exception. It has to be read alongwith substantive provision. Both have to operate together The Legislative intent of exempting transaction of sale in retail to consumer cannot in our opinion be frustrated by inaction or omission on part of Mandi Samiti by not fixing the quantity of retail sale. 31. Yet another argument raised was that notification under Section 8 of the Adhiniyam were issued adding specified agricultural produce without application of mind. According to learned counsel there was no material available with the State Government on which it could have applied its mind that it was necessary or expedient in public interest to include and specify the agricultural produce in the list of agricultural produce specified in notification issued under Section 6 of the Act. We do not think that petitioners can raise this argument as they did not file any objection as contemplated in proviso to Section 8, which runs as under i "Provided that before action under this sub-section is taken the State Government shall invite and consider, the prescribed manner, objection if any, against the proposed action." It is not the case of petitioners that action was taken without following procedure and inviting objections, 32. We now proceed to examine individual petitions, specific questions arising therein and whether service is being rendered to payer of fee. Wood 33. In this group writ petition Nos. 238 of 1981 and 7732 of 1982 have been filed by U. P. Forest Corporation and Civil Misc. Writ No. 11254 of 1981 has been filed by Western India Match Company and others have been filed by timber dealers. Apart from general arguments that no service is rendered specific questions raised in petition filed by Forest Corporation are whether allotment of forest to petitioner by State Government was entrusted or sale, (2) whether sale to railways or other public sectors who were not traders could be subjected to fee and (3) whether even if it is assumed that forest was transferred to petitioner then could the standing trees in the forest be deemed to be wood. 34. From Section 14 of the Forest Corporation Act it is apparent that U. P. Forest Corporation is statutory body which has been entrusted with supervision and control of the forest. 34. From Section 14 of the Forest Corporation Act it is apparent that U. P. Forest Corporation is statutory body which has been entrusted with supervision and control of the forest. Admittedly the petitioner has been entrusted with entire forest area for removing and disposing of trees of forest. Before entrustment could be described as sale there should be material on the record either as a matter of fact or as a matter of law which may establish that there was transfer of property. The definition of sale in Section (2)(r) of the Act relied on by Sri Mandhyan does not in any manner detract from the normal concept of sale as given in Sales of Goods Act or Indian Contract Act. In Star Paper Mills' case discussed in paragraph 23 of Ram Chandra's case (supra) sale was no doubt assumed in licence but the same cannot be said of petitioner who only pays royalty. 35. But what would be the position when sale is made by petitioner from its depots. According to petitioner as petitioner steps in shoes of Government it is a producer and not trader. We how ever, do not find any merit in it as the petitioner becomes producer-trader as explained by Supreme Court while discussing point No. 13, in Ram Chandra's case. It ceases to be producer and becomes trader for purposes of the Act. The sales, therefore, made from depots are by a trader within meaning of Section 2(y) of the Act and it being engaged in ordinary course of business in buying and selling wood which is agricultural produce is liable to abtain licence and pay fee under Section 17(iii)(b). 36. It was further urged that most of the sales were made from its depots to Railways or other public sector, therefore it was not liable to pay fee on it. We have already extracted Section 17(iii)(b) earlier. Before any fee could be realised from petitioners on sale of wood from its depots it had to be established that sale or purchase was covered in either of the four sub-clauses of Section 17(iii)(b), Clause (i) would obviously not apply as it applies to sale by commission agent. As regard clause (2) if the petitioner is treated as producer-trader then fee has to be realised by the purchaser but such a purchaser has to be trader. As regard clause (2) if the petitioner is treated as producer-trader then fee has to be realised by the purchaser but such a purchaser has to be trader. And Railways or public sector organisation would normally be not covered in the definition of trader in sub-clause (y) of Section 2. For the same reasons clause 3 will not apply as it deals purchase by a trader from trader. And in the last clause it is the liability of the purchaser. It is clear therefore that on sale made to Railways and public sector bodies from depots the liability to pay fee shall not be of the petitioner. But whether sale was made to Railways or public sector bodies is a question of fact which should be adjudicated in first instance by the Marketing Committee. 37. Learned counsel for petitioner submitted in the alternative in which he was supported by Sri Rajeshwari Prasad the learned counsel appearing for Petitioner in Civil Misc. Writ Petition No. 11254 of 1981 that even if entrustment by State Government was deemed to be sale the transaction would not attract levy as what was sold was tree in the forest whereas specified agricultural produce was wood. According to learned counsel wood and tree cannot be understood in same sense either in commercial or popular sense. Attention was drawn to Hindi version of the notification where specified agricultural produce is He urged that there was difference in forest and forest produce. Trees standing in jungle may constitute forest but it becomes forest produce only after it is felled and sawed. Learned counsel maintained that the Act related to marketing of produce which is brought in the market yard. Standing trees in the forest therefore, should be excluded as it would not be covered in the Scheme of the Act as was clear from the Preamble. No regulatory measures can be taken be Marketing Committee in respect of trees standing in a jungle as they are incapable of being brought in the Market. As regards Paper Mills case discussed in paragraph 24 of Ram Chandra's case the learned counsel urged that no argument was raised that the entry was wood and not tree. It was assumed. 38. We have given anxious consideration to this argument. In fact at the first flush we were inclined to agree with petitioner. As regards Paper Mills case discussed in paragraph 24 of Ram Chandra's case the learned counsel urged that no argument was raised that the entry was wood and not tree. It was assumed. 38. We have given anxious consideration to this argument. In fact at the first flush we were inclined to agree with petitioner. But on an overall consideration it appears more reasonable to understand wood in the wider sense of even including tree. We have been persuaded to take this view not on the Dictionary meaning in Chambers 20th Century (page 1976) or Webester (page 2630) relied by Sri Mandhyan but on the language of the Schedule and the Act. Prior to amendment of Section 17 agricultural produce brought for sale and purchase in the Market area was subjected to fee. But after substitution of sub clause (b) of Section 17(iii) in 1978 fee could be levied for transactions of sale and purchase anywhere in the Market Area. In Ram Chandra's case it has been held that theoritically fee can be levied on buying and selling taking place in the Market Area. It is not disputed that every forest from where petitioner has been permitted to fell and remove trees is in one or the other Market Area. Transactions of sale and purchase therefore, shall attract levy. Of course if what is purchased and sold is not specified agricultural produce then the question of levy would not arise. In the Schedule wood in mentioned in the head Forest Produce. There can be no doubt that trees standing in a jungle are forest produce. The word wood is isolation may have led to the conclusion canvassed on behalf of petitioner but it has to be read along with word forest produce. For instance trees in jungle for purposes of fuel or used in building etc. are described as fuel wood '.5Tvn% or wood for building and not as fuel tree or building tree. It, therefore, appears to us that wood has to be understood in the wider sense. 39. Petitioner claims that none of the Mandi Samitis render any service to petitioners. are described as fuel wood '.5Tvn% or wood for building and not as fuel tree or building tree. It, therefore, appears to us that wood has to be understood in the wider sense. 39. Petitioner claims that none of the Mandi Samitis render any service to petitioners. Felling of trees, its removal to various sale depots or to saw mills, which are either owned by petitioner or private saw millers, is carried on by their employees either by the method, river bahan or Kandha Dhulan or in vehicles using roads belonging to State Government or National Highway or State Highway maintained by Nagar Mahapalika or Zila Prishad or Town Area. In the entire process the Mandi Samiti do not render any service nor they provide any facility of loading or unloading timber logs either at point of despatch or at sale depots. Further as there is no other trader like petitioner operating in the market area of the Mandi Samitis there was no question of rendering any service whether individually or collectively. From various counter affidavits filed by various Secretaries of different Market Samitis it stands admitted that at present no service is being rendered in the Market Yard either to petitioner or to any trader of wood of petitioners type. From the nature of business carried on by petitioner also it does not appear feasible that Mandi Samitis can render any service. The depots of petitioners stretch over acres with huge investments. Moreover there appears no plan or proposal, at least none has been filed, which may establish that such facility shall be provided in future. What has been urged in affidavit after affidavit is that huge and vast Market yard at enormous cost is being constructed. And the Mandi Samitis shall provide place for petitioner therein. Such vague assertions in our opinion are not sufficient From the project of Marketing yard prepared by Board to which we have referred earlier it is impossible to conceive of a Marketing yard for the nature of business carried on by petitioner. Nor we think that claim of petitioners that statutory services contemplated under Section 16 are being rendered in the Market Area can justify the levying of fee on petitioners. We have already discussed scope of Section 16(1) and (2). Nor we think that claim of petitioners that statutory services contemplated under Section 16 are being rendered in the Market Area can justify the levying of fee on petitioners. We have already discussed scope of Section 16(1) and (2). In our opinion for services rendered in Market Area which are only regulatory in nature the Mandi Samitis can only charge licence fee. Of course a trader carrying on business in Market Area can be subjected to fee, if the Mandi Samiti is rendering any service to such trader in Market yard or sub-Mandi yard either individually or collectively. From various affidavits it does not appear that opposite parties are rendering or are capable of rendering any service to petitioners even to purchasers of petitioner in the Market yard either generally or substantially. TIMBER 40. Traders who carrying on business of purchase and sale of timber in Market Yard of different places have challenged the demand of fee raised against them for lack of separate notification under Section 10, omission to frame rules to enable a trader to claim exemption on retail sale, demand of fee on doors, frames etc. Was illegal and wood did not include timber and Mandi Samitis were not rendering any service. 41. We have already held that it was not necessary for State Government to issue notification each time a commodity was included as specified agricultural commodity under Section 8. In none of the petitions it has been stated that no notification under Section 10 was issued after issuance of notification under Sections 6 and 7 of the Act. 42. Similarly we have held earlier that would has been used in wider sense. But if wood has been purchased by a trader in one Market Area then no fee shall be levied on sale of it in the same area. But if it has been brought from another Market Area then fee shall be leviable on sale of it as held in Ram Chandra's case (supra). 43. As regards retail sale we have already held that there has been an omission in not fixing the quantity of retail sale to consumer of wood. In order, however, to safe guard the interest of Mandi Samitis we direct that each Mandi Samiti may fix the quantity of retail sale. After this is done each trader may be afforded opportunity to prove the retail sale done by it. In order, however, to safe guard the interest of Mandi Samitis we direct that each Mandi Samiti may fix the quantity of retail sale. After this is done each trader may be afforded opportunity to prove the retail sale done by it. The demand notices may be amended accordingly. So long this is not done the Mandi Samiti shall not proceed with the demand notices, issued against petitioners. We are further of opinion that in these circumstances petitioners could not be prosecuted for non-payment of fee. 44. Leviability of fee on doors, frames etc. stands concluded by decision of point No. 12 in Ram Chandras case (supia). What had been subjected to lee ts sale of wood not the goods manufactured or produced out of it. 45. As we are following petitions filed by timber dealers for reasons stated by us above we are not examining the question of non-rendering of service at this stage. We may, however, observe that if petitioners raise this controversy before Mandi Samiti they may decide it by a reasoned order. KHANDSARI 46. Three questions were raised by traders of khandsari, who are carrying on business in Muzaffarnagar, (I) Fee was not validly imposed (2) No service was rendered by Marketing Committee (3) After addition of khandsari no notification under Section 10 was issued. 47. We have already decided question Nos. 1 and 3 against petitioner. As regards non-rendering of service no foundation has been laid except vague and general assertion that no service is being rendered. DAAL 48. In petitions filed by the manufacture of daal it is not necessary to decide if the Mandi Samitis are rendering any service as the submission made by petitioners that it is not a specified agricultural produce appears to be well founded. 49. In the Schedule of specified agricultural produce gram, pea, and Arhar etc. are mentioned under group Legumme. In Dr. Bulkis English to Hindi Dictionary the meaning of word Legumme is given as . It is not disputed that whole gram, Arhar, pea etc. are Legumme. The controversy is whether split daal can also be considered to be Legumme. According to learned Counsel for Mandi Samitis daal is nothing but processed Arhar or gram. Whole daal and broken or split daal (Arhar ki daal are one and the same thing). It is not disputed that whole gram, Arhar, pea etc. are Legumme. The controversy is whether split daal can also be considered to be Legumme. According to learned Counsel for Mandi Samitis daal is nothing but processed Arhar or gram. Whole daal and broken or split daal (Arhar ki daal are one and the same thing). Learned counsel urged that petitioners in spliting Arhar or other whole grain only process it and as agricultural produce under sub-section (a) of Section 2 of the Act means such item, even in processed from the petitioners who are manufacturers of Arhar were liable to pay fee under Section 17(iii)(b) on sale of daal. Reliance was placed on U. P. Ata Chakki Vayabasai Sangh, Varanasi v. Krishi Utpadan Mandi Samiti, 1976 UPTC 323 where it was held that grinding of wheat and converting the same into flour was process of milling, therefore, attracted levy. Support was also sought to be drawn from Ashok Industries v. State of Bihar, AIR 1979 Patna 217. 50. We are doubtful if the submission of learned Counsel for Mandi Samitis can be accepted as Arhar and Arhar ki Daal are not one and the same thing either Commercially or popularly. But we do not propose to examine it as in our opinion the Government itself dispelled the doubt when it treated whole and split daal as two different commodities vide notification No. 3848 dated 20th January, 1982. Gram, pea, Arhar etc., were substituted by new entry which reads whole and Daal. For instance the entry of Arhar how reads Arhar Sabout and Dali Hui. In other words whole and split daal both have become specified agricultural produce from January, 1982. Ratio of paddy and rice laid down in Ram Chandra's case (supra), however, may apply after this date and not prior to it. We do not agree with Sri Mandhyan that the notification was issued by way of abundant caution. It substitutes the items mentioned in the Schedule from the date of notification. KIRANA 51. It is claimed that normally these goods are imported from outside, therefore, there is no necessity of auction as such no fee can be demanded from them. As stated earlier traders carrying on business of purchase and sale of specified agricultural produce in the Market Yard are covered under Section 17(iii)(b) and are liable to pay fee. The incidence of fee is on sale. As stated earlier traders carrying on business of purchase and sale of specified agricultural produce in the Market Yard are covered under Section 17(iii)(b) and are liable to pay fee. The incidence of fee is on sale. Whether goods are purchased from agriculturist or they are imported does not make any difference so far levy or Market fee is concerned See point 14 Ram Chandra's case (supra). 52. As regards rendering of service by the Mandi Samiti there appears to be no merit in the submission advanced on behalf of petitioner. Even if no individual benefit is derived by a particular dealer that does not deprive the Market Committee from issuing notice of demand. In fact liability to pay fee under the Act now is on purchaser. Service has to be rendered to him. But facility provided to seller is also service to purchaser as both the activities are integrated. From that aspect the expenditure incurred on construction of Market Yards etc. may not be beyond permissible limits. 53. But if the Marketing Committee demands fee for constructing Marketing Centre outside the Market Yard although inside Market Area without any notification under Section 7 then the petitioner can successfully resist it. In petition filed by Kerana dealers of Agra it has been specifically alleged in paragraphs 19 and 29 of the petition that although Mandi Samiti bad already collected nearly a crore yet it was realising fee from petitioner without rendering any service It is also alleged that the constructions are being raised by Mandi Samiti beyond the declared Market Yard. Copy of letter has also been filed which shows that realisations are being made in public interest. In the counter-affidavit it is not denied that Marketing Centre is being constructed beyond Mahapalika limits. But it is defended as it is in Market Area. We have already held that no fee can be realised for raising construction or providing facility beyond Market Yard. In our opinion therefore no demand of fee can be made from petitioners. 54. Apart from it before any demand is made from petitioner it has to he found out by the Mandi Samiti whether sale has been made by petitioner in wholesale. For instance in paragraph 2 of the Writ Petition No. 10343 of 1981 it has been stated that petitioner carries on business both in retail and wholesale. 54. Apart from it before any demand is made from petitioner it has to he found out by the Mandi Samiti whether sale has been made by petitioner in wholesale. For instance in paragraph 2 of the Writ Petition No. 10343 of 1981 it has been stated that petitioner carries on business both in retail and wholesale. T his denied in the counter-affidavit but that alone is not sufficient. It is a question of fact. The Mandi Samiti therefore before issuing any demand should afford an opportunity to the petitioners who claim to have made sale in retail to show if any sale has been made in retail in accordance with the proviso to Section 17 and then only proceed to realise market fee from the petitioner. 55. As regards Writ Petition No. 10228 of 1981 it is claimed that recovery proceedings are being taken against petitioner which is a partnership firm without issuing any notice to petitioner. This aspect has to be examined by Mandi Samiti if arrears are of M/s. Sanjiv Kumar. The petitioner is therefore directed to file an objection before opposite party No. 2 which may adjudicate after affording opportunity to the petitioner and making such enquiry as it considers necessary and decide whether dues are of Sanjiv Kumar if so whether petitioner is liable for the dues. COTTON WASTE 56. The controversy stands concluded in favour of petitioner that no fee can be charged on it as it is not notified and is not covered in the entry ginned and unpinned cotton. Modi Spinning and Weavieg Mill v. State, 1980 UPTC 1337. CATECHU (KATHA) 57. While deciding Ram Chandra's case (supra) it was observed that if Catechu was product of khair tree fee could be charged on purchase of khair trees only. Claim of petitioners is two fold, one that no opportunity is being afforded by Mandi Samiti as directed by Honble Court and second petitioners are being asked to pay fee on Catechu unless they establish that fee was paid on khair trees. 58. We are, however, of opinion that, wood and, Catechu both being specified as agricultural produce petitioner could resist demand of fee only if they could establish that the khair trees out of which catechu was produced was purchased in the Market Area where sale of catechu was effected KHOYA 59. 58. We are, however, of opinion that, wood and, Catechu both being specified as agricultural produce petitioner could resist demand of fee only if they could establish that the khair trees out of which catechu was produced was purchased in the Market Area where sale of catechu was effected KHOYA 59. We do not propose to examine the question of rendering service by Mandi Samitis as we are of opinion that Mandi Samitis could not have raised the demand of Market fee without deciding whether sale made by petitioners was to consumer in retail. RICE MILLERS, RICE MANUFACTURERS AND OIL MANUFACTURERS 60. In what circumstances fee shall be leviable on purchase of paddy and sale of rice has been finally decided in Ram Chandra's case, we need Dot repeat it here. 61. As regards rendering of service mills which are situated in the Market Yard are liable to fee on purchase or sale made by them. It is not the individual rendering of service or availing the facility provided by Mandi Samitis or failure to render service immediately which are decisive of quid pro quo. For instance in the counter-affidavit filed in Civil Misc. Writ No. 13325 of 1981 detail of expenditure has been mentioned. It is not the suggestion that fee realised in surplus. We, therefore do not find any merit in the submission that no fee is realisable or that petitioners are not required to take out licence. 62. But in case of Mill situated outside Market Yard rendering of service by Mandi Samiti assumes importance. Such a Mill by virtue of being in Market Area shall have to obtain licence and pay fee for it. The transaction of sale and purchase however cannot be subjected to market fee unless Mandi Samiti renders any service to purchasers or traders of the commodity individually or generally and substantially n the Market Yard. We have already discussed scope of statutory services under Section 16 of the Act earlier. Service of checking weights and measures or distributing information in respect of agricultural produce in a Market Area may provide quid pro quo for the licence fee. But imposition of market fee on a miller, which of course is substantial, outside the Market Yard can be sustained only if as observed earlier nexus between payer and benefit is established. 63. We may explain our view point further, by referring to Civil Misc. But imposition of market fee on a miller, which of course is substantial, outside the Market Yard can be sustained only if as observed earlier nexus between payer and benefit is established. 63. We may explain our view point further, by referring to Civil Misc. Writ Petition No. 14622 of 1981. Petitioner is a miller of food grains and oil in sub-market yard of Bhogaon, in district Mainpuri. It is undisputed that there is no other miller in that sub-market yard and the fee is being realised from petitioner for spending on construction activity in the Principal Market Yard of Mainpuri. The distance between Mainpuri and Bhogaon is considerable and it is not possible for us to imagine how the petitioner, carrying on business of manufacture and sale of food-grains and oil at Bhogaon. Can be benefitted by the service rendered in the Market Yard of Mainpuri. In sub-paragraph (viii) of paragraph 14 of the counter-affidavit it has been stated that Mandi Samiti has a scheme of acquiring land at Bhogaon for constructing sub-market yard but no scheme or plan has been filed along with the counter-affidavit. Budget filed is of Market Yard Mainpuri. We cannot understand how such expenditure can be justice on principle of quid pro quo. After all it is not tax. Construction of a marketing centre or providing of facilities either in the principal market yard or sub-market yard or a place adjacent after acquiring it and notifying it under Section 7 may conceivably provide nexus between the charging of fee and benefit to traders of one town area for being spent in another town area or district would be contrary to the principle enunciated by Supreme Court in two decisions which have already been referred. VEGETABLE DEALERS 64. They carry on business in Market Yard. Their resistence to demand of fee because no individual service is being rendered to them appears to have no merit. TRANSIT FEE 65. In some of the petitions it has been alleged that Mandi Samitis are charging Market fee on the goods which passed from their territory during transit. Although in one of the counter-affidavits filed in Wino's case (supra) it has been denied but in another case i.e. Writ Petition No. of 1981, petitioner has filed receipts of realisation from different Mandi Samitis on the same goods when it was in transit. Although in one of the counter-affidavits filed in Wino's case (supra) it has been denied but in another case i.e. Writ Petition No. of 1981, petitioner has filed receipts of realisation from different Mandi Samitis on the same goods when it was in transit. We, therefore, consider it necessary to observe that Market fee under Section 17(iii)(b; is on sale and not on transit. It can be charged from a trader only if the goods are sold in the Market Yard but not when it is in Course of transit. REFUND 66. Refund is claimed by some rice millers as fee had been paid by them on sale of rice under mistake of law. According to them they came to know of it only after the decision in Ram Chandra's case (supra). In one of the counter affidavit filed by Secretary, Mandi Samiti Sitarganj, in Civil Misc. Writ No. 1394 of 1981 it is stated that Mandi Samiti is willing to refund provided details are furnished. Similar counter-affidavit has been filed in Civil Misc. Writ No. 15277 of 1981. In another counter-affidavit by Secretary, Mandi Samiti Sitarganj in Misc. Writ No. 13494/81 it is not admitted that multiple levy was made. We, however, do not think that the controversy can be decided by this court on mere averments in the affidavits which are not admitted. Petitioners may lodge their claim in this regard with respective Mandi Samitis if they have not already done so. Mandi Samitis shall thereafter afford opportunity to petitioners to produce evidence to establish that sale of rice was made out of paddy produced in the Market Area on which fee had been paid. If they succeed in doing so the Mandi Samitis shall return the fee to petitioners Learned Counsel for Mandi Samiti relied on Shiv Shanker Daal Mills v. State of Haryana, AIR 1980 SC 1037 and urged that petitioners were not entitled to any refund. We, however, do not think that the ratio of decision supports learned Counsel. 67. Although we have upheld levy of Market fee except where it is being charged for acquiring land or raising constructions on it which has not been declared Market or Sub-Market Yards. We must observe that Mandi Samitis are labouring under misapprehension that the amount of fee being 1% only the quid pro quo was supplied by legislature. This stand in the counter-affidavits has surprised us. We must observe that Mandi Samitis are labouring under misapprehension that the amount of fee being 1% only the quid pro quo was supplied by legislature. This stand in the counter-affidavits has surprised us. We may also observe that we were not satisfied with the stand taken by Mandi Samitis in the counter-affidavits or supplementary counter affidavit that they were raising huge and vast marketing complexes or that they were contemplating to do so. We have quoted from the Marketing Project to show that size of Markets have to be worked out on arrivals and the constructions have to be in accordance with specification mentioned therein. In none of the counter-affidavits it has been stated that the Marketing centre is of category A, B. or C and the shops etc. are of the size and capacity laid down in project. We can appreciate that cost has gone up. But the Project is of the year, 1981. And even if the cost has gone up the size and number of shops has to remain the same. We hope that the Mandi Samitis shall adhere to the norms laid down by the Board and follow the circular issued by the Director that sixty per cent of the fee should be spent on payer of fee. The Samitis should realise that what they have been permitted to realise is fee and not tax. And the sooner they realise the better it is. And in Samitis where construction work has been completed and there is surplus the Mandi Samitis may well be advised to refrain from realising, market fee. 68. In respect of some of the commodities, for instance, Khoya arguments were raised, therefore, we have expressed our views. But no formal order is being passed as the question of joint petition which is involved in this petition is pending before Full Bench. Apart from it there were other petitions which although were not listed but were heard by common consent of parties, we are delivering judgment in such cases as well. Then there were some petitions which were heard in order to highlight the controversy and they have been referred to also by way of illustration but they are not being decided either because there is a report of deficiency in payment of court fee or they have been referred to larger bench. Then there were some petitions which were heard in order to highlight the controversy and they have been referred to also by way of illustration but they are not being decided either because there is a report of deficiency in payment of court fee or they have been referred to larger bench. In some cases apart from legal points covering more than one petition there were specific points, for instance, Kirana which have been dealt with by us but we are not passing any formal order because in those cases also number of petitioners have joined but only one court fee has been paid. 69. For the reasons stated above we decide the petitions in the manner indicated below t Wood Civil Misc. Writ Nos. 2398 of 1981 and 7732 of 1982 70. Both these petitions succeed and are allowed. The demand notice issued against petitioners are quashed. Opposite parties are further restrained from prosecuting the petitioners. 71. In case of those forest depots which are in the Market Yards the petitioners shall file objections in the light of what has been stated earlier and the Mandi Samitis before taking any action shall decide the same in accordance with law after affording opportunity to it. Civil Misc. Writ No. 11254 of 1980 72. Petition fails and is dismissed, with observation that opposite parties shall not charge when goods are in transit only. TIMBER Civil Misc. Writ Nos. 10824/80 and 187 of 1982 73. Petitions succeed and are allowed. Opposite Parties shall not proceed to recover fee mentioned in the impugned notices before deciding quantity of retail sale and affording opportunity to petitioners. DAAL Civil Misc. Writ Nos. 4275 and 4523 of 1981 74. Petitions succeed and are allowed. Demand notices if any, are quashed. KIRANA Civil Misc. Writ Nos. 10228 and 1034.3 of 1981 75. Petition succeeds and is allowed in part. Opposite parties shall not proceed to realise market fee before deciding retail sale made by petitioner. CATECHU Civil Misc. Writ Nos. 372 of 1981 76. Petition fails and is dismissed. KHANDSARI 77. Civil Misc. Writ Nos. 6496, 6418, 6417, 6415, 6874,6427, 5925, 6419,6597,6534,6533,6532,6531,6530, 6517. 6416, 6515, 6510,6509.6508, 6507,6506,6503, 6618,6619, 6620, 6621,6598, 6599,6622, 6623,6600,6601, 6602, 6603. 6604, 6605, 6606, ( 607, 6608, 6(09. (610. CATECHU Civil Misc. Writ Nos. 372 of 1981 76. Petition fails and is dismissed. KHANDSARI 77. Civil Misc. Writ Nos. 6496, 6418, 6417, 6415, 6874,6427, 5925, 6419,6597,6534,6533,6532,6531,6530, 6517. 6416, 6515, 6510,6509.6508, 6507,6506,6503, 6618,6619, 6620, 6621,6598, 6599,6622, 6623,6600,6601, 6602, 6603. 6604, 6605, 6606, ( 607, 6608, 6(09. (610. 7538, 6611, 6617, 6470, 6471, 6472, 64/3, 6474, 6475, 6476, 647 , 6478, 6479, 6480, 6499, 6502, 6433, 6432, 6431,6430,6429, 6428, 6426,6425, 6424, 6423, 6422, 6421, and 6420, of 1981. Petitions fail and are dismissed. TRANSIT Civil Misc. Writ No. REFUND Writ Petition No. 7595 of 1981 78. In view of petitioners own case in paragraph 27 of the writ petition that it was not possible for it to prove that rice purchased by it was produced out of paddy produced or purchased n the Market Area of Pilibhit on which fee already been paid the petitioner is not entitled to any relief. The petition accordingly fails and is dismissed. Civil Misc. Writ Nos. 13494 and 15277 of 1981 79. The petitions succeed and are allowed in part. Petitioners may file objections with six weeks from today before Mandi Samitis which may after affording opportunity decide the claim of refund only. RICE AND OIL MILLS Civil Misc. Writ Nos. 3741 of 1977, 8057 of 1980, i3494 and 15277 of 1981 80. So far as they challenge levy on sale of rice are dismissed Misc. Writ Petition No. 14622 of 1981 81. Petition succeeds and is allowed. Opposite Parties are restrained from demanding any market fee from the petitioners, although they shall be liable to licence fee. Civil Misc. Writ Nos. 8268 of 1980 and 13257, 13261, 13325 and 14643 of 1981 82. Interim orders in the above noted case which have been decided against petitioners are vacated. Formal orders are not being passed as the matter of Court-fees is pending before Full Bench. Civil Misc. Writ Nos. 10342 of 1981 83. Interim order in fav our of petitioners 1 to 7 is vacated. 84. Interim order in favour of petitioners 8 to 24 in respect of manufacturing and selling of rice and oil is vacated. Civil Misc. Writ Nos. 10617, 8916, 10911, 14142, 2167, 6905,10342 11994, of 198 t and 10426 and 10445 of 1980, 3305 of 1979 85. The above-noted petitions may be listed after the decision of the Full Bench in Civil Misc. Writ Petitions Nos. 3422 of 1980.