JUDGMENT Uday Sinha, J. These are four writ applications under Articles 226 and 227 of the Constitution. They will all be disposed of by this common judgment. In a nut shell the contention of the petitioners in each of these applications is that they are not liable to pay the market fee on their goods in terms of the Bihar Agricultural Produce Markets Act, 1960 (hereinafter called 'the Act'). Since the widest sweep of the submissions was advanced in C.W.J.C. No. 1797 of 1984, I shall first consider the submissions advanced in that application. 2. C.W.J.C. No. 1797 of 1984 : The petitioner in this application is an incorporated Company with its Registered Office at Bombay. It produces Baby food under trade name "Lactodex" and "Raptakos S.I.F. (Special Infant Food)". The factory is at Bombay. Its products are sold all over the country including this State. It has its Central Office at Patna. Being located outside Bihar, it naturally purchases its raw materials from outside Bihar and no purchase whatsoever of any commodity is made in this State. According to the petitioner, the ingredient or constituent of "Lactodex" and "Raptakos S.I.F." are as follows: LACTODEX Per 100 ml. when reconstituted. 6 g. : 45 ml. Protein 1.9 g. Carbohydrate 9.6 g. Milk fat 9.6 g. Minerals 0.5 g. Vitamin A 265 I. U. Vitamin B6 40 mcg. Including that derived from milk powder. Vitamin D 40 I. U. Calories 54 RAPTAKOS S.I.F. Per 100 Ml. when reconstituted. Protein 1.8 g. Fats 3.0 g. Carbohydrates 9.6 g. Minerals (Ash) 0.4 g. Per 100 ml. when reconstituted. 4.5.g. : 30 ml. Iron 0.6 g. Vitamin A 225 I. U. Vitamin D 60 I. U. Vitamin E 1.3 I. U. Vitamin B1 0.07 mg. Vitamin B2 0.11 mg. Nicotinamide 0.9 mg. Vitamin B6 0.04 mg. Vitamin B 12 0.15 mg. Vitamin C 0.5 mg. Calories 73 ” The products of the Company are received in this State packed in sealed tins. One branch of the Company is at Patna and another at Muzaffarpur, the two branches falling within the sphere of the Agricultural Produce Market Committees at Patna and Muzaffarpur. The averment of the petitioner is that although the petitioner did not fall within the mischief of the Act, under coercion and with great reluctance it obtained a licence under the Act for both the places separately. The averment of the petitioner is that although the petitioner did not fall within the mischief of the Act, under coercion and with great reluctance it obtained a licence under the Act for both the places separately. The factual stand of the petitioner is that its products are not agriculture produce not being milked. It appears that in 1982 the petitioner was asked by respective Market Committees to shift its branch offices within the Principal Market Yards. The petitioner filed appeal against the order to the Board of Directors of the Bihar State Agricultural Marketing Board. The Board dismissed the appeal holding that the goods of the petitioner were agriculture produce which had been duly notified under sections 3 and 4 of the Act and that the petitioner was a trader for the purposes of the Act. Being aggrieved by the order of the appellate authority (Annexure-1) the petitioner has moved this Court for quashing Annexure-1. 3. C.W.J.C. No. 3215 of 1984 : The petitioner in this application is a Co-operative Society registered in Gujarat under the Co-operative Society Act of that State. The petitioner is a Federation of Co-operative Societies in that State. The petitioner is engaged in marketing various products which are predominantly milk products and are marketed under the brand name of "Amul" and Sagar". The manufacturing process involves the use of sophisticated and high developed modern technology. The six federating co-operative Societies used modern and sophisticated plant and machinery for manufacturing milk products in a large scale. The Head Office is at Anand in Gujarat. The Branch offices are situate at Calcutta, Delhi, Madras, Bombay and Ahmedabad. These branches work through authorized Depots. At Patna also they have a Depot which is responsible for marketing of its products in Bihar as well as in Nepal. The products of the petitioner are Butter, Cheese, Chocolates, Ghee, Whole Milk Powder Skimmed Milk Powder, Balamul, Amul Spray and Nutramul. The stand of the petitioner is that its produces are industrial products manufactured outside Bihar and, therefore, the petitioner is not liable to pay market fee on its products sold in Bihar. In September, 1982 the Secretary of the Patna Market Committee called upon the petitioner by Annexure-1 to pay market fee. The demand was re-iterated in December, 1982. The stand of the petitioner is that its produces are industrial products manufactured outside Bihar and, therefore, the petitioner is not liable to pay market fee on its products sold in Bihar. In September, 1982 the Secretary of the Patna Market Committee called upon the petitioner by Annexure-1 to pay market fee. The demand was re-iterated in December, 1982. In March 1988 the petitioner wrote to the Market Committee as well as to State of Bihar that the Act had no application to the products of the petitioner and that it was not liable to pay market fee. In those circumstances, the petitioner has prayed for a writ commanding the respondents to desist from reenforcing the Act as against the petitioner and issuing a writ of prohibition in that behalf. 4. C. W.J. No. 4096 of 1986 : The petitioner in this petition also is an incorporated Company having its Branch Office at Patna. Its registered office is at Bombay. The factory, however is at Saharanpur in Uttar Pradesh. It produce/manufactures chases condensed Milk and other milk products commonly sold under name "INDANA". The Company has a Depot at Patna in Mohalla Rajendra Nagar which falls within the Market Area of Patna Market Committee. The stand of the petitioner is that the manufacturing process of its products involve use of sophisticated and highly developed modern technology for manufacture of milk products on a large scale. Needless to say, no part of manufacture takes place in Bihar nor is the raw material purchased by the Company in Bihar. According to the petitioner the entire sales are conducted through the Regional Sales office of the Company located at Calcutta. The process of marketing operation is that wholesalers in Bihar place indents for their goods on the Patna Depot Office. On the basis of those indents the Regional Sales Office at Calcutta supplies the goods after raising bills or invoices therefor. The products of the goods are received in this State in a packed condition. The goods are as follows: "(i) INDANA PURE GHEE in tins of various capacities ranging from ½ Kg. to 15Kgs. (ii) Shimmed Milk Power. (iii) Whole Milk Power. (iv) Angel Baby Food. (v) Indane Spray. (vi) Condensed Milk. (vii) Milkafe. The products of the goods are received in this State in a packed condition. The goods are as follows: "(i) INDANA PURE GHEE in tins of various capacities ranging from ½ Kg. to 15Kgs. (ii) Shimmed Milk Power. (iii) Whole Milk Power. (iv) Angel Baby Food. (v) Indane Spray. (vi) Condensed Milk. (vii) Milkafe. The stand of this petitioner also is that its goods not having been manufactured in Bihar and the goods not being agricultural products within the meaning of the Act, the Patna Market Committee was not entitled to demand Market fee from it. 5. C.W.J.C. No. 4133 of 1986. The petitioner in this application is a firm having its place of business in the town of Patna within the Market Area of Patna Market Committee. The petitioner does not manufacture any item, but is selling agency of M/s Food Specialties Limited, a Company located in the State of Punjab at Moga. The petitioner markets the following : (i) MILKMAID : Sweetened condensed milk in sealed tins with contents milk & sugar. (ii) LACTOGEN : Infant formula commonly called ‘LIP’. (iii) NESTUM BABY : Special Baby food in flake form prepared from rice, CEREAL flour, sucrose, and iron salt with added vitamins and calcium carbonate. (iv) CERELAC : Infant food in flake form made from wheat, flour and mixed with partially skimmed milk, carbonate, sodium chloride etc. (v) NESPRAY Milk Powder. (vi) LACTOGEN Full : A type of infant food in powder form. protein Followup Formulas (vii) EVERYAY, dairy : Used for coffee and tea containing milk partially coffee whitener in powder asking milk powder and sugaer. form (viii) Tomato Ketchup. (ix) How and sweet type sauces made from sugar, chilli synthetic vinegar etc. The stand of the petitioner is that it does not deal in any notified Agriculture produce and, therefore, does not fall within the purview of the Act. It has been averred that on 5.8.1986 a Market Supervisor went to the business premises of the petitioner's firm and seized Invoice Register, Sale Register etc. relating to the business of the firm. Thereafter, the petitioner was asked to obtain licence under the Act and to pay market fee. The seizure list is Annexure-1 and the demand notice is Annexure-2 to this application. The petitioner has prayed for quashing Annexure-2 and for release of the books seized by the Supervisor. 6. relating to the business of the firm. Thereafter, the petitioner was asked to obtain licence under the Act and to pay market fee. The seizure list is Annexure-1 and the demand notice is Annexure-2 to this application. The petitioner has prayed for quashing Annexure-2 and for release of the books seized by the Supervisor. 6. The submissions advanced on behalf of the petitioners by Mr. G.C. Bharuka in all the writ applications except in C.W.J.C. No. 3215 of 1984 were as follows :- (i) The State Marketing Act is ultra vires the powers of the State Legislature to the extent it has been made applicable to products of industry declared to be under the control of the Union under Entry 52, List I to the VIIth Schedule of the Constitution of India particularly in view of section 8 of the Industries Regulation Act, 1951 and section 3 of the Essential Commodities Act, 1955 read with Orders framed there under. (ii) The application of that Act to transactions in relation to Baby foods amounts to overreaching the object of the Act and is thus an unreasonable restriction within the meaning of Articles 19 (1) (9), 19 (6) and 304 (b) of the Constitution. (iii) Baby foods are not agricultural produce within the meaning of the Act. (iv) Baby food not being a notified agricultural produce in terms of sections 3 and 4 of the Act, respondents were not entitled to levy market fee. (v) The Market Committee does not render nor is it capable of rendering any special service in respect of the transaction of Baby foods justifying the levy of market fee. 7. Re: Point No. 1 :- Our Constitution has laid down fields of Legislation for the Parliament and State Legislatures. Those are to be found in List I and List II respectively in the Seventh Schedule to the Constitution. List III, is a concurrent list in which both the Parliament and the State Legislatures may legislate. Article 254 provides which law shall prevail in case of inconsistency between a law made by Parliament and a law made by the Legislatures of the States. In the present case, we shall be concerned with three items in the various lists. They are List I, Item 52, List II, Item 28 and List III, Item 33. Article 254 provides which law shall prevail in case of inconsistency between a law made by Parliament and a law made by the Legislatures of the States. In the present case, we shall be concerned with three items in the various lists. They are List I, Item 52, List II, Item 28 and List III, Item 33. They read as follows :- "Item 52, List I - Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest. Item 28, List II - Markets and fairs. Item 33, List III - Trade and commerce in, and the production, supply and distribution of:- (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oils-seeds and oils (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; and (e) raw jute." The Bihar State Legislature enacted the Bihar Agricultural Produce Markets Act, 1960. The object was "to produce for the better regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Bihar and for matters connected therewith". The next Statute with which we are concerned is the Industries Development and Regulation Act [Act No. 65 of 1951]. This Statute was enacted in terms of Item 52 of List I of the Seventh Schedule to the Constitution. Section 2 of this Act declared that it had been considered expedient in public interest that the Union should take under its control the food processing industries specified in the First Schedule thereto. Item No. 27 which included Milk foods and other processed foods. The Schedule does not mention any item as 'Baby food'. The third Statute with which we are concerned is the Essential Commodities Act enacted by the Parliament in 1955. It is not in controversy that the Essential Commodities Act was enacted in terms of Item 33 of List III [See Ch. Tika Ramji v. State of Uttar Pradesh : A.I.R. 1956 Supreme Court, 676]. That the Bihar Agricultural Produce Markets Act was enacted in terms of Item 28 of List II should not be in controversy. 8. It is not in controversy that the Essential Commodities Act was enacted in terms of Item 33 of List III [See Ch. Tika Ramji v. State of Uttar Pradesh : A.I.R. 1956 Supreme Court, 676]. That the Bihar Agricultural Produce Markets Act was enacted in terms of Item 28 of List II should not be in controversy. 8. As I said earlier, the Bihar Act (in short 'the Market Act') was enacted to provide for regulating of buying and selling of agricultural produce and for establishment of markets for agricultural produce. Marketing Legislation has now for long been considered as essential feature in the commercial world. Markets have been set up all over the world. The object of such Legislation is to protect the producers of commercial crops for being exploited by middlemen and profiteers, so that they secure fair rent for their produce. The concept of establishment of agricultural produce has found acceptance in this country as well. The Bihar Legislature took the hint to establish agricultural markets from Bombay Legislation. In its objects and reasons for the enactment of the Bihar Act, it was stated the establishment of regulated markets must form an essential part of any ordered plan of agricultural development in this country. While the Bombay Act was limited to cotton markets, the Bihar Legislature considered it expedient to cover other crops as well. "The keynote to the system of marketing agriculture produced in the State is the predominant part played by middlemen. It is the cultivator’s chronic shortage of money that has allowed the intermediary to achieve the prominent position he now occupies". The relevance of agricultural markets in that behalf cannot be called in question. The various Acts in the country have been subject to scrutiny by various Courts including the Supreme Court from time to time. The vires of such Legislation has firmly found favour in the judicial firmament. A Bench of this Court in M/s Mahabir Tea Co. v. State of Bihar : 1979 B.L.J.R. 560 observed that the Marketing Act will result in protecting the interest of the agriculturists. Onslaughts have been made on the vires of the Agricultural Market Act, but without any success. We must, therefore, proceed on the assumption that although Agricultural Market Acts placed restrictions on buyers or sellers, they must be treated as being in the interest of the general weal. Onslaughts have been made on the vires of the Agricultural Market Act, but without any success. We must, therefore, proceed on the assumption that although Agricultural Market Acts placed restrictions on buyers or sellers, they must be treated as being in the interest of the general weal. While recognizing the wisdom of enacting Market Legislations, the wisdom of Legislations for proper growth of industries must also be appreciated. Needless to say, the industrial growth of a country marks its progress as well as the commercial advancement of that country. It thus appears that there is no clash between the industrial objectives and agricultural well being. In fact, industrial and agricultural policies must be dovetailed into each other so that there is national development of both the aspects of society leading to advancement of general well being of the nation. There cannot be a clash between industry and agriculture. In fine, the importance of neither can be whittled down. In the process of appreciation of the two ideas, it is possible that one may appear to be encroaching on the field of the others on a superficial view of matters Serious effort must be made to find homogeneity between the two stands. The problem must be viewed in this background. 9. The submission urged on behalf of the petitioners is that marketing is an integral aspect of industry. The industrialist must have freedom to market his goods. Since the industrialist does not produce good for himself liberty of marketing industrial goods is an essential concomitant of the pattern of industrial development. In that background it was submitted that the Indian Parliament in its wisdown having taken Infant food or Baby food "under its wings by declaring those items as industry" the control of which is expedient in public interest "in terms of section 18-G of the Industries Development and Regulation Act the field of legislation in regard to Baby food got occupied. The State Legislature had, therefore no jurisdiction to legislate in regard to marketing of "Milk food" or "Other processed food". Strong reliance had been placed on a decision of the Supreme Court in I.T.C. Ltd. and others v. State of Karnataka and others : 1985 Supreme Court Cases (Supplement), 476. 10. The submission, in my view, is fallacious. I shall assume that the goods produced and marketed are 'Milk food' and 'processed food'. Strong reliance had been placed on a decision of the Supreme Court in I.T.C. Ltd. and others v. State of Karnataka and others : 1985 Supreme Court Cases (Supplement), 476. 10. The submission, in my view, is fallacious. I shall assume that the goods produced and marketed are 'Milk food' and 'processed food'. The question is, is the field of legislation for the Bihar Legislature occupied and whether in exercise of the powers under the Bihar Act a market fee can be levied on goods produced by industries which have been notified in terms of section 18-G of the Industries Development and Regulation Act. It is now well settled that bar relating to agricultural produce markets fall within the ambit of "Markets and fairs" in Item 28 of List II. It is not doubted that if the food processing industries and Milk foods have not been notified in terms of section 18-G of the Industries Development and Regulation Act, the challenge to levy market fee would be pointless. It must also be conceded that any legislation in regard to the items mentioned in the Schedule to the Industries Development and Regulation Act would prevail over any legislation by the Bihar Legislature. But the significant aspect is that although Milk foods and processed industries have been notified in terms of section 18-G, the Central Government has not enacted any law in regard to Milk foods processing industries. If there had been a law, it would be worth considering which law will prevail. But in absence of any law enacted by the Parliament or by the Central Government, the question of field being occupied does not arise. The field is absolutely wide open. There can thus be no question of law made by the State Government being invalid on account of field being occupied. This view of mine is based on the observations of the Supreme Court in the case of Ch. The field is absolutely wide open. There can thus be no question of law made by the State Government being invalid on account of field being occupied. This view of mine is based on the observations of the Supreme Court in the case of Ch. Tika Ramji v. State of Uttar Pradesh : A.I.R. 1956 Supreme Court, 676 at page 703 where Bhagwati, J observed as follows: “Even assuming that sugarcane was an article or view of articles relatable to the sugar Industry with the meaning of S.18-G of Act 65 of 1951, it is to be noted that no order was issued by the Central Government in exercise of the powers vested in it under that section and no question of repugnancy could ever arise because, as has been noted above, repugnancy must exist in fact and not depend merely on a possibility. The possibility of an order under S. 18-G being issue by the Central Government would no be enough. The existence of such an order would be the essential prerequisite before any repugnancy could ever arise.” 11. The challenge to the power of State Legislature to enact law for the levy of market fee of Milk foods and food processing industries has no substance. The case of I.T.C. Ltd. and others v. State of Karnataka and others (supra) can be of no help to the petitioners. That was a case whether the Parliament had enacted Tobacco Board Act, 1975 which was meant to regulate marketing of tobacco. In that situation, by majority judgment the Supreme Court held that the Central Legislature having enacted the Tobacco Board Act which dealt with the marketing of tobacco, the, State Law in regard to marketing of tobacco like other agricultural produce would be inoperative. By a majority view, it was held that the State Law was ineffective. The leading view in this behalf was propounded by Murtaza Fazal Ali. J. A. Varadarajan. J. agreeing, See paragraph 69). S. Mukharji. J struck a dissentient note. 12. Mr. Ramjanam Ojha, learned counsel for the respondents contended that the majority decision in the I.T.C. Co Ltd. case (supra) could not be the law of the land as it was 6 judgment in Per Curium, as it went against the earlier decision of the Supreme Court of larger Benches. In particular he referred to, the Supreme Court case in Ch. Tika Ramji (supra). In particular he referred to, the Supreme Court case in Ch. Tika Ramji (supra). In my view, it is not open to this Court to say whether the majority decision of the Supreme Court is the law of the land or not, but it is not necessary to delve into that matter, as the situation before us is entirely different . In this case the field of legislations in regard to "Market and Fatr" is not occupied by any Central legislation. The Parliament or the Central Government not having enacted any law in relation to Milk or Milk food, the Question of the field of the legislation being occupied does not arise. The Parliament not having enacted any law in regard to Milk food or processed food, the law enacted by the State Legislature and Orders/Notifications passed thereunder do not suffer from the vice of trenching upon a field reserved by section 18-G of the Industries Development and Regulation Act. It need only be stated that O. Chinnappa Reddy and A.P. Sen, JJ, have ordered in S.L.P. (Civil) 892 of 1985 (order dated 8-2-1987) that the I.T.C. case requires reconsideration by a Bench of five Judges. 13. When the above distinction was pointed out Mr. Bharuka for the petitioners contended that there was no question of two legislations existing side by side one enacted by the Parliament-and another enacted by the State Legislature, in order to test the vires of State Legislature. It was contended that once declaration has been made in terms of section 18-G of the Industries Development and Regulation Act, the whole subject in that behalf becomes out of bounds for the State Legislature, and whether the Parliament or the Central Government had any Law/Order or not, the State Legislature is debarred from entering the prohibited zone. No decision was cited at the Bar for this extreme proposition. In fact, in the case of I.T.C. Ltd. and other v. State of Karnataka and others (supra) neither Murtaza Fazal Ali, J nor A. Varadarajan, J considered whether the State Legislature would have jurisdiction to enact in the absence of Central Legislation or not. His Lordship's decision is not a decision on the proposition propounded by Mr. Bharuka. The observations of Sabyasachi, J, however, are against the proposition propounded on behalf of the petitioners. The submission urged by Mr. His Lordship's decision is not a decision on the proposition propounded by Mr. Bharuka. The observations of Sabyasachi, J, however, are against the proposition propounded on behalf of the petitioners. The submission urged by Mr. Bharuka was squarely raised and rejected by Mukharji, J. This submission was noticed by Mukharji, J in paragraph 217 in the following words :- "On behalf of the appellants reliance was placed on the observations in the case of Baijnath Kedia v. Bihar State ([1970] 2 SCR 100-113 : (1969) 3 SCC 838 ) that once a declaration was made, any legislation by the State after such declaration trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature". In Paragraph 225 Mukharji, J. posed this question once again in the following words :- “225. It was submitted on behalf of the appellants that the State Legislature lost its competence because the field was occupied by Parliament in view of the declaration under Section 2 of the Central Act. It was evident it was urged, that the intention to cover the whole field has been expressed by the Central Act and as intended, the Central Act is a complete and exhaustive Code in respect of tobacco. Consequently, the enactment of the subsequent State legislation was overborne on the ground of repugnancy Reliance was placed on the decision in the case of State of Orissa v. M. A. Tulloch & Co. [1964] 4 SCR 461, 477 : AIR 1964 SC 1284 ]" His Lordship repelled the contention in paragraph 236 in the following words :- “If in spite of declaration under Entries 7 and 54 of List I in respect of gas the State Legislature can still legislate for the nationalisation of Gas Industry as was held in Calcutta Gas Co. (Prop) Ltd. v. State of W.B. [(1962) Supp. 3 S.C.R. 1 : AIR 1962 S.C. 104 : (1963) 1 SCJ 106] because of Entry 25 of List II, it cannot be said that no legislation regulating the market can be done by the State of Karnataka in spite of Entry 28 read With Entry 66 of List II because of declaration under Entry 52 of List I in respect of tobacco industry. That would be inconsistent and illogical See also P. D. Shamdasani v. Central Bank of India ( 1952 SCR 391 , 394 : AIR 1952 SC 59 : 1962 SCJ 29”. 14. The submission that the Bihar Law was invalid an account of the declaration under section 18-G of the Industries Development and Regulation Act is fallacious for still another reason. The Bihar Law does not pretend to control the licensing of industries in regard to production of goods. It is not a law in relation to ‘Industry’. It only deals with marketing in a limited way. The Bihar Act only provide that with a view to protecting the agriculturists/of this State every producer/trader must come to a particular place and buy/ sell in a particular manner. In order to protect the producers the Market Committee has been authorised to charge 1% as market fee. This cannot affect the industry in any manner. It does not entrench upon the power of the Parliament in regard to ‘Industry’. On a superficial view it appears that the State Legislature and the State Government, while legislating under the head "Market", has entrenched upon the field of industry which may include marketing as well. But incidental entrenchment has not been banned by law. The observations of Sabyasachi Mukharji, J at paragraph 216 must be taken note of:- “Two broad principles should be borne in mind in deciding the controversy of this nature. One is whether a particular legislation or enactment is within the competence of particular Legislature must be judged after finding out the pith and substance, in other words the true nature and character, of the legislation in question and secondly the entries in the list should be given liberal and generous construction. All the entries should be construed in harmonious manner so as to avoid conflict. In case of conflict, however, in respect of entries where both the State and the Centre can legislate, the Central Legislation would prevail over the State legislation in view of the provisions of Articles 245 to 254 of the Constitution.” And at paragraph 220 his Lordship observed that a mere incidental encroachment was not forbidden. His Lordship approved the dictum laid down by Sulaiman, J in A.L.S.P.P.L. Subrahmanyan Chettiar v. Muttuswami Goundan (A.I.R. 1941 F.C. 47). On the other hand Murtaza Fazal Ali, J did not lay down that even incidental encroachment was not permissible. His Lordship approved the dictum laid down by Sulaiman, J in A.L.S.P.P.L. Subrahmanyan Chettiar v. Muttuswami Goundan (A.I.R. 1941 F.C. 47). On the other hand Murtaza Fazal Ali, J did not lay down that even incidental encroachment was not permissible. We have to proceed on the basis of doctrine of "Pith and Substance". Judged from that view point, there is no question of State Legislature or the State Government entrenching upon the toes of the Parliament or the Central Government. In my view, therefore, the law relating to levy of market fee on Milk foods which must include Baby food or Infant food or other processed foods cannot be held to be invalid as being beyond the competence of the State Legislature. The field was not occupied by any Central legislation. Even if it has been occupied, the question of clash could be resolved on the anvil of the doctrine of "Pith and Substance". The Market Act, like the Bihar Act, would pass the test of competence on the footing that the Act did not regulate industry. The subjects enumerated in the three Lists are fields of legislations. The power to legislate must be given liberal and generous construction. All Entries should be construed in a harmonious manner, so as to avoid conflicts. In my view, therefore, the case of I.T.C. Ltd. and others v. State of Karnataka and others (supra) does not help the petitioners in any manner. The present case must be governed by the decision of the Supreme Court in Calcutta Gas Co. (Prop). Ltd. v. State of West Bengal and P.D. Shamdasani V. Central Bank of India (supra). 15. Learned counsel for the petitioners contended that the law relating to Agricultural Market would fall within the ambit of Item 26, List II, "Trade and Commerce within the State subject to the provisions of Entry 33 of List III" or Item 27, "Production, Supply and Distribution of goods" subject to the provisions of Entry 33 of the List III, and, therefore, it must be subordinated to the Central Government. I regret the Bihar Act falls squarely within Item 28, List II. The entire effort of Mr. Bharuka to desist the Bihar Act to Items 26 and 27 was an exercise in futility. I regret the Bihar Act falls squarely within Item 28, List II. The entire effort of Mr. Bharuka to desist the Bihar Act to Items 26 and 27 was an exercise in futility. The entire submission in this behalf crumbles to the ground when it is appreciated that there is no Central legislation in regard to Item 27 in First Schedule of the Industries and Development Regulation Act. In the absence of any Central legislation or Order, the question of entrenching upon occupied field does not arise. The first submission advanced on behalf of the petitioners must thus be squarely rejected. 16. Having disposed of the question of validity of the Bihar Law vis-a-vis the Industries Development and Regulation Act, 1951, I shall now proceed to consider whether it is ultra vires vis-a-viz Essential Commodities Act, 1955. The Essential Commodities Act falls within Item 33 of List III of Seventh Schedule (See Ch. Tika Ramji and others etc. v. The State of Uttar Pradesh and others : 1956 Supreme Court 676 at page 703, para 36). The Bihar Agricultural Market Act has been enacted in terms of Item 28 of List II. If there is any repugnancy between the two laws, every efforts must be made to reconcile the two laws. For that we have to see what is repugnancy. Since the Essential Commodities Act has been enacted in terms of Item 33 in List III in the concurrent list, it is patent that now both the Centre and the State have the power to legislate. In that situation, the question of competence of the State Legislature would be entirely irrelevant. It may, however, be observed that the Bihar Act must be held to be covered by Item 28 of List II and not by Items 26 and 27. The question, therefore, "subject to the provisions of Entry of List III" does not arise. 17. The question which may possibly arise is the clash between the Essential Commodities Act and the Agricultural Market Act. That clash must be resolved on the basis of the doctrine of "Path and Substance". Since the units of the federations cannot be written off and since the individual items are fields of legislation every effort must be made to reconcile the enactment. That clash must be resolved on the basis of the doctrine of "Path and Substance". Since the units of the federations cannot be written off and since the individual items are fields of legislation every effort must be made to reconcile the enactment. The plea that it was not within the competence of the Bihar Legislature (and the Orders and Notifications in terms thereof) since the Essential Commodities Act (Act 10 of 1955) already held the field, seems to be devoid of merit. The Essential Commodities Act was enacted in exercise of concurrent legislative power under Entry 33 of List III as amended by the Constitution Third Amendment Act, 1954 (See 1956 Supreme Court 676 at page 703, Para 35). The Bihar legislation has been enacted in exercise of power enshrined in Item 28 of List II. The Bihar Act being within the exclusive ambit of List II, no question of competence can arise. Nor can any questions of repugnancy arise between an Item in List II and Item in List III. That question would have been relevant if the Bihar Act had been enacted in terms of Item 26 or 27 of List III. But it is well established by judicial pronouncements that Agricultural Market legislations have been effected in terms of Items 28 and 66 of List II. In such a situation, the question of field being occupied does not arise. The two operate in different independent fields. A similar situation arose in Ukha Kolha v. The State of Maharashtra : A.I.R. 1963 Supreme Court, 1531. In that case the facts were that State of Maharashtra had enacted a legislation known as ‘Bombay Prohibition Act’. This had been enacted in terms of powers conferred by Items 6 and 51 of List II of the Seventh Schedule. Schedule l29-A and B of that Act pcovided for compelling persons suspected of consuming intoxicant to be produced for submitting themselves for examination and extraction of blood. The certificate of examination under section 129-A had been made admissible without formal proof. On the other hand, section 510 of the Code of Criminal Procedure provided a mode in which report of Criminal Examiner had to be proved at a trial. The certificate of examination under section 129-A had been made admissible without formal proof. On the other hand, section 510 of the Code of Criminal Procedure provided a mode in which report of Criminal Examiner had to be proved at a trial. The submission urged, was that by the enactment of section 129-A of the Bombay Prohibition Act, section 510 of the Code of Criminal Procedure stood in application to offence under section 66 of the Bombay Prohibition Act. Reliance was placed upon Article 254 (2) of the Constitution. The contention was repelled by the Supreme Court by the observation that the prohibition of the Bombay Prohibition Act would prevail in the State of Maharashtra only to the extent of inconsistency with the Code and no more. In this behalf the Supreme Court relied upon the case of Ch. Tika Ramji v. State of Uttar Pradesh (supra). Their Lordships observed that it was difficult to regard section 129-B of the Bombay Act as repugnant to section 510 of the Code of Criminal Procedure so as to make later provision wholly inapplicable to trials for offences in the Bombay prohibition Act. In my view, the doctrine of "occupied field" has no significance in relation to the Essential Commodities Act in the present case. That submission must, therefore, be rejected. 18. The question that arises, however, is that although the two legislations are referable to different lists, yet two Statutes are repugnant to each other. We must, therefore, understand what is the implication of the doctrine of repugnancy. This subject had fallen for consideration in several cases. In the case of Ch. Tika Ramji (supra) at page 697, it was observed as follows : "Repugnancy falls to be considered when the law made by Parliament and the law made by the State Legislature occupy the same field because, if both these pieces of legislation deal with separate and distinct matters though of a cognate and allied character, repugnancy does not arise. In that case their Lordships of the Supreme Court were concerned with the repugnancy arising out of both Parliament and the State Legislatures having operated in the same field in respect of matters enumerated in the concurrent list, i.e. Food stuffs comprised in Entry 33 of List III. In that case their Lordships of the Supreme Court were concerned with the repugnancy arising out of both Parliament and the State Legislatures having operated in the same field in respect of matters enumerated in the concurrent list, i.e. Food stuffs comprised in Entry 33 of List III. Their Lordships relied heavily upon the observations of B.N. Rau, J in G.P. Stewart v. B.K. Roy Chaudhury : A.I.R. 1939 Calcutta, 628 (R) which were as follows : "The principle deducible from the English cases, as from the Canadian cases, seems therefore to be the same as that enunciated by Isaacs, J. in the Australian 44 hour case (37 C.L.R. 466 (M), if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore inoperative. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law". Their Lordship then quoted the dictum of Sulaiman. J in Shyamakant Lal versus Rambhajau Singh 1939 F.C.R. 193 at page 212 : AIR 1939 F.C. 74 at page 83 (S) where his Lordship laid down the following principle of construction in repugnancy: "When the question is whether a Provincial legislation is repugnant to an existing Indian law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity, and every effort should be made to reconcile them and construe both so as to avoid their being repugnant to each other and care should be taken to see whether the two do not really operate in different fields without encroachment. Further, repugnancy must exist in fact, and not depend merely on a possibility. Further, repugnancy must exist in fact, and not depend merely on a possibility. ‘Their Lordships can discover no adequate grounds for holding that there exists repugnancy between the two laws in districts of the Province of Ontario where the prohibition of the Canadian Act are not and may never be in force : (Attorney-General for Ontario v Attorney-General for the Dominion, (1896) AC 348 at pp, 369-70 (T)." S. Mukharji, J in the case of I.T.C. Ltd. and others v. State of Karnataka and other (supra) observed that even in the absence of intention a conflict may arise when both the State Legislature and common wealth seek to exercise their powers on the same subject. We should therefore, examine whether the provisions of the Essential Commodities Act is a law on the same subject as the Market Act and whether they are logger heads. In that behalf, we have to draw upon the doctrine of "Pith and Substance", Since effort must be made to reconcile the two laws. 19. The objects of the Essential Commodities Act and the Bihar Agricultural Produce Market Act are entirely divergent to each other. There is no meeting point. Whereas, the Essential Commodities Act was enacted to the interest of general public for the control of production, supply and distribution of any trade or commerce in certain commodities, the Bihar Act, on the other hand, was not meant to protect the citizens at large but only to protect the interest of the agricultural producers by regulating buying and selling of the agricultural produce or for matters of alliee character. The Bihar Act regulates only the buying and selling operations in a limited way. The central theme of the Essential Commodities Act is to ensure that every citizen is able to get foodstuffs and other essential commodities. With that object it visualises system of licensing of dealer with conditions of licence laying down their conducts. If a dealer fails in that behalf, the enforcing authorities may seize and confiscate the goods besides booking up the delinquents by criminal prosecution. The intention of the Bihar Market Act is only to keep out the middlemen, so that agricultural producers are not exploited. With that end the State Government has been empowered to make provisions for purchase, sale, storage and processing of agricultural produce as may be notified. The intention of the Bihar Market Act is only to keep out the middlemen, so that agricultural producers are not exploited. With that end the State Government has been empowered to make provisions for purchase, sale, storage and processing of agricultural produce as may be notified. The object is to be achieved by publication of Notifications in terms of Section 3 of the Act and for declaration of a market area with a view to protecting the agriculturists. Section 15 provides that barring retail sales or sales for personal consumption, agricultural produce shall not be sold except in Market Yard. With the same objective section 16 prohibits making or recovery of any trade allowance in respect of agricultural produce. Section 26 of the Market Act empowers the Market Committee to levy fee of 1% on every transaction and to realise it from the buyers. Section 29 provides for creation for Market Committee fund, for meeting expenditure by the Market Committee generally in terms of section 30 of the Act. There are provisions for establishing of check posts, for stopping the vehicles for realisation of market fee and power to order production of accounts and power of entry. Section 52 is a rule making power in regard to State Government and making rules for carrying out the purpose of the Act. In my view, there is no inconsistency or clash between the provisions of the Essential Commodities Act and the provisions of the Agricultural Produce Market Act. 20. Learned counsel for the petitioners in his effort to bring out inconsistency between the two Acts or Orders made thereunder submitted that whereas in terms of the various Control Orders a licensee had to trade at the place mentioned in his licence, but the Agricultural Marketing Act compelled a producer to sell only in a Market Yard. This was an inconsistency which could not be complied. This submission loses sight of the fact that the Agricultural Market Act deals with wholesale dealers only. Section 15 of the Market Act exempts retailed dealers from the compulsion of dealing inside the Market Yard. It only applies to wholesalers. The two provisions can be reconciled by granting licence to wholesales of agricultural produce for location inside the Market Yard only. The clash is more ethereal than substantial. 21. Section 15 of the Market Act exempts retailed dealers from the compulsion of dealing inside the Market Yard. It only applies to wholesalers. The two provisions can be reconciled by granting licence to wholesales of agricultural produce for location inside the Market Yard only. The clash is more ethereal than substantial. 21. Learned counsel for the petitioners then contended that whereas the Display of Stocks of Prices Control Order compels a dealer to sell at a rate mentioned on the Board, the Marketing Act compels a dealer to sell by auction. The two cannot be carried out simultaneously. I fail to appreciate why the two cannot co-exist. The apparent inconsistency arises because of the misconception between the approach of the two enactments. Whereas, the Orders made under the Essential Commodities Act relate to dealers, the Market Act relates to buyers. The protection is to the seller. In that view of the matter, even if the goods have to be sold by auction, the seller may refuse to sell a commodity if the price offered by the buyer is less than the lucrative price at which the buyer would sell. Rule 96 of the Agricultural Produce Market Rules provides that the Market Committee shall place at the disposal of those using the market information of such matters as the price of the principal agricultural produce ruling in the concerned market of the State. The information shall be published and will be readily available to persons using the market. With information the price of selling by auction becomes consistent with the requirement of sale at a prescribed rate. Learned counsel for the petitioners also contended that there was a conflict between the provisions of the Essential Commodities Act in regard to issuance of cash memos for every sale, but Rule 96 of the Market Rules provides for execution of agreement between buyer and seller in triplicate. Rule 96 does not rule out the necessity of issuing cash memos besides execution of an agreement in the prescribed form. I have failed to find any substance in the contention urged on behalf of the petitioners that the Essential Commodities Act or Orders made thereunder works at cross purposes with those of the Bihar Market Act. Rule 96 does not rule out the necessity of issuing cash memos besides execution of an agreement in the prescribed form. I have failed to find any substance in the contention urged on behalf of the petitioners that the Essential Commodities Act or Orders made thereunder works at cross purposes with those of the Bihar Market Act. Nothing substantial was brought to our notice indicating that there was any real clash between the Central Act and as State Act, It is true that the Essential Commodities Act is concerned with sale and purchase of essential commodities which may be agricultural commodities as well. Sales tax Act is also concerned with sales. Although both are concerned with sales the two are not repugnant to each other. The position in regard to Agricultural Produce Act also on that analogy cannot be held to be repugnant to the Essential Commodities Act. 22. Before dealing with the second third and fourth contentions advanced on behalf of the petitioners, I shall dispose of the fifth submission, namely whether the enactment of the application thereof was invalid as the Market Committee did not render any service to dealers specially to the petitioners. This submission was based on the footing that the demand for market fee in order to constitute fee must provide Quid Pro Quo. The question of Quid Pro Quo in respect of levy of fee under the Bihar Agricultural Market Act has been considered in several decisions of this Court as well as of the Supreme Court. It is now firmly established that the Agricultural Markets provide services to dealers within the Market Area. Learned Counsel for the petitioners in this behalf submitted that the Market Committee in order to levy the market fee was bound to render special services to the dealers. In short, the contention was that the Market Committee must render special services to every dealer in contra distinction with general services. Special reliance was placed upon Kewal Krishan Puri and another v. State of Punjab and others : A.I.R. 1980 Supreme Court, 1008 where it was laid down by Untwalia, J. that generally speaking a fee is defined to be a charge for special charge rendered to individuals by Government agencies. In my view, not much can be spun out from the expression "special services". In my view, not much can be spun out from the expression "special services". It would only mean that services rendered to dealers must be different from Municipal services rendered by the Government or by Municipal Corporations. Every service rendered by a Market Yard must be held to be special service. The providing of platforms for sale, the provision for proper weighment, the provision for supervisory staffs for supervision of quality of good are all special services. It is true that the items in which the petitioners deal are in nature and substance different from trade in grains, vegetable, fruits etc. Learned counsel for the petitioners, however, refused to State what services were required by the petitioners. If they could specify what services they required, the Market Committee might endeavour to provide those services. Merely arguing that the Market Committee was not capable of rendering any services to the petitioners cannot resolve the issue. In my view, the Act and Orders thereunder cannot be held to be void for want of Quid Pro Quo. Quid Pro Quo must exist but it need not be in mathematical proportion to the levy. A general relationship between the fee and the services rendered is enough to pass the test of validity. The reliance placed by learned counsel for the petitioners on Om Prakash Agarwal etc. v. Girl Raj Kishori and others : A.I.R. 1986 Supreme Court, 726 is equally misplaced. That was a case where the levy of Market fee was to be put in the consolidated fund of the State. Having been put in the consolidated fund of the State, it was obvious that the State would be rendering general services. In those situations, it was laid down that no services were to be rendered in terms of the Haryana Legislature. That aspect of the matter is unexceptionable. Learned counsel for the respondents submitted that the pattern of business of the petitioners is undoubtedly different from other agricultural producers/traders, but the petitioners may state what services they expect or require from the Market Committee and the latter would consider the desirability and possibility of extending special services to them. Learned counsel for the petitioners was chary to approach the question in that manner. In my view, the contention regarding absence of Quid Pro Quo to the petitioners is ill founded. 23. Learned counsel for the petitioners was chary to approach the question in that manner. In my view, the contention regarding absence of Quid Pro Quo to the petitioners is ill founded. 23. Let us now examine whether the goods in which the petitioners deal are agricultural produce or not. The expression “Agricultural Produce” is defined in section 2 (1) (a) of the Market Act. It lays down that Agricultural produce means and includes produce of Agriculture, Horticulture, Animal Husbandry, Forest, Sericulture, Pisiculture, whether processed or unprocessed, manufactured or unmanufactured as mentioned in the Schedule. It includes Livestocks as well as poultry. In the Schedule in Part VIII are mentioned Animal husbandry products. The following items are relevant for these applications : 7. Butter 8 Ghee 9 Milk (except in liquid form) 16. Cream 17. Channa 19. Khoa ( [kksvk ) Item 9 was previously to ‘Milk’. That item it was amended in August, 1984 by S.O. 1002 to state "Milk except in liquid form". The petitioner in C.W.J.C. No. 1797 of 1984 : M/s Raptakos, Brett and Company Ltd. produces Baby food under trade name "Lactodex" and "Raptakos S.I.R," constitutes thereof have been mentioned in paragraph 6 of the petition. Therein has been stated the mineral value, protein, carbohydrate, Milk fat and vitamins. At the bottom is mentioned against an asterisk "include' that derived from Milk powder". The ratio of mineral, fat, carbohydrate, vitamins etc. in Raptakos S.I.R. is different from those of Lactodex. It cannot be denied, however, that the base of both the products is Milk. They are primarily milk Mineral, Vitamins, Protein, Carbohydrate, Fat etc. are to be found in Milk, as commonly understood as well. Proportion of the constituents in the Trade articles may be varying but from the fact that Milk powder is the base and prime ingredient clearly shows that they are Milk in powder form which is different from Milk in liquid form. It is true that in trying to identify Milk we must take Milk as is commonly known in Society. Milk is commonly known in a liquid condition, but the Schedule has ruled that out. The item of the Schedule after amendment is "Milk except in liquid form". The idea is obviously to include in the Schedule 'Milk' in some form other than it is commonly understood. That some other form can be no other than Milk in powder form. Milk is commonly known in a liquid condition, but the Schedule has ruled that out. The item of the Schedule after amendment is "Milk except in liquid form". The idea is obviously to include in the Schedule 'Milk' in some form other than it is commonly understood. That some other form can be no other than Milk in powder form. I have no hesitation in holding that the two products or Milk powder or condensed Milk are nothing but Milk covered by item 9 of the Schedule. Milk in liquid form is highly perishable. The definition "Agricultural Produce includes products of livestock. Since the essential elements in the products of this petitioner is Milk, they must be held to be Animal husbandry products and leviable as such. The petitioner has only tried to throw the Court off guard by describing its products as Baby food or Infant food. They are nothing but processed Milk in powder form. They are used as substitutes for mother's milk. The fact that they are not purchased in this State or out of Milk purchased in Bihar of no consequence. Dealing in those two articles makes the petitioner trader in Agricultural produce. 24. The products involved in C.W.J.C. No. 4096 of 1986 are Pure Ghee, Skimmed Milk, Whole Milk Powder and Condensed Milk. These obviously fall within Item 9 of Part VIII of the Schedule of the Market Act. Simply because they have been packed in tins and Cartons, their essential identity does not change. Undoubtedly, Milk is one of the constituents in Milkafa, but it is not Milk. It is essentially a Coffee preparation. It is compound of several items. It is thus an item distinct from its ingredients. It is, therefore, difficult to accept the claim of the petitioners that they are not Milk in different forms. The fact that they have been processed in factory cannot change the character of the produce. In fact, it may be mentioned that Ghee, butter and cream are specifically mentioned items in Part VIII of the Schedule to the Act. There is no difficulty, therefore, in holding that Ghee, butter, cream, milk powder (whole or skimmed) condensed milk sold by the petitioners is Agricultural produce. The submission that the provisions of the Act encompass only agriculturists is ill founded. The Act takes in its sweep not only agriculturist but also traders in agricultural produce. 25. There is no difficulty, therefore, in holding that Ghee, butter, cream, milk powder (whole or skimmed) condensed milk sold by the petitioners is Agricultural produce. The submission that the provisions of the Act encompass only agriculturists is ill founded. The Act takes in its sweep not only agriculturist but also traders in agricultural produce. 25. The petitioner in C.W.J.C. No. 4138 of 1986 M/s Patliputra Cands in Agent of M/s Food Specialties Limited. It deals in products like Milkmaid which is sweetened and condensed Milk in sealed tins with contents Milk and sugar. Condensed Milkmaid, is not milk in liquid form. It thus falls squarely within Item 9 in Part VIII of the Schedule to the Act. Lactogen is nothing but Milk in powder form with some minerals and vitamins super added. Nespray as described by the petitioner himself is Milk powder and therefore, this also falls within the mischief of the Agricultural Market Act. This petitioner also deals in Nestum Baby Cereal commonly known as 'N.B.C.' It is Baby food in flake form prepared from rice, flour, sucrose and iron salt with added vitamins. Similarly Ceralac is also a food prepared for children after mixing grains, milk, oil etc. I have some difficulty in branding them as Agricultural produce. It is true that they are made out of Agricultural items, but after being processed, they become entirely different items. They are neither wheat nor flour, nor skimmed milk nor rice etc. In my, view, therefore, Nestum Baby Cereal and Cerelac are not Agricultural produce. Tomato Ketchup another product of this Company is not 'tomato'. This item also cannot be held to be Agricultural produce. Tomato is mentioned against Item 8 in Part VI of the Schedule to the Act. Thus barring Nestum, Cerelac and tomato Ketchup, Company would be liable to pay Market fee on all its products mentioned in the petition. 26. The products involved in C.W.J.C. No. 3215 of 1984 are chocolate butter, Ghee whole Milk powder, Balamul, Amul Spray and Nutramul. Butter is specifically named item in the Schedule. They cannot, therefore, escape levy under the Market Act. Chocolates, however, produced by this Company stand on entirely different footing. It is true that milk may be added to chocolates, but it is essentially Chocolate Milk is not the essential nature or base of this product. Butter is specifically named item in the Schedule. They cannot, therefore, escape levy under the Market Act. Chocolates, however, produced by this Company stand on entirely different footing. It is true that milk may be added to chocolates, but it is essentially Chocolate Milk is not the essential nature or base of this product. Chocolate not having been mentioned in the Schedule to the Act, I am unable to hold that the petitioner is liable to pay Market fee on sale of Amul Chocolates as well. The character and nature of Balamul, Amul Spray, Amul Baby food and Nutramul have not been spelt out in the petition. It is, therefore, difficult to give any verdict as to whether they are Agricultural produce or not. That matter may be decided at an appropriate stage later in a properly framed application. 27. Learned counsel for the petitioners contended that the Act was intended to apply to Agricultural produce only and it was not meant to apply to industrially produced or finished goods. Mr. Dipankar P. Gupta as well as Mr. Bhuraka contended that in so far as the Act has been made applicable to goods which are not primarily agricultural goods, but are industrially produced goods, the extension of the Act was against the object of the Act. In this connection, our attention was drawn to the definition of "Agricultural produce" and "Agriculturist". "Agriculturist produce" has been defined/stated as "all produce of Agricultural, Horticulture. Animal husbandry, Forestary, Sericulture and Pisiculture, whether they be processed or unprocessed", Mr. G.C. Bharuka, learned counsel for some of the petitioners was at pains to demonstrate to us from the long title of the Act that the Act was meant only for regulation of buying and selling of agricultural produce. According to him, the Act did not apply to industrial produce. It is difficult to concede in bald terms that the Agricultural Produce Market Act does not apply to industrially produced goods. Just because an Agricultural produce has undergone some processing in a factory, it will not ease to be Agricultural produce. For instance Ghee or Butter produced in a factory will not cease to be an Agricultural produce. Milk in powder form is nothing but processed Milk. Just because an Agricultural produce has undergone some processing in a factory, it will not ease to be Agricultural produce. For instance Ghee or Butter produced in a factory will not cease to be an Agricultural produce. Milk in powder form is nothing but processed Milk. I have not the least hesitation in holding that while produce of forestary in the form of furniture or timbers would not attract the Agricultural Market Act, but merely because of processing, forest produce will not be taken out of the levy zone. If timber is sawn into planks and stored after applying campher, kerosene oil and other preserventives, it will still be forest produce. The question of industrially produced goods being subjected to levy under the Agricultural Market Act came up for consideration before this Court in two earlier decisions. The first one was in Belsand Sugar Company v. State of Bihar : 1976 B.B.C.J., 543 : 1977 PLJR 8 . In that case the question was whether sugar was Agricultural produce within the meaning of the Bihar Agricultural Produce Market Act. Their Lordships laid down in unmistakable terms that it was so. Similarly, in M/s Mahabir Tea Company v. State of Bihar : 1979 B.L.J.R. 560 the question arose whether Tea, Vanaspati oil sugar, rice etc. which had been processed in a factory were liable to levy under the Act. N.P. Singh, J with whom P.S. Sahay, J agreed held that they were all leviable to fee despite the fact that they were admittedly manufactured products. On a parity of reasoning, therefore the products of the petitioners except those whom I have held not to be Agricultural produce, viz, Nestum, Cerelac, Chocolate, 'everyday' tea whitener, Ketchup and Cheese sold by the petitioners must be held to be liable to levy. Their Lordships also held that section 39 in so far as it authorised the Stale Government to add of substitute a product which was an Agricultural produce did not suffer from the vice of excessive delegation. 28. It only remains to consider point No. 4 advanced on behalf of the petitioners by Mr. Bharuka. It was submitted that a Notification in terms of sections 3 and 4 was imperative and in the absence of Notification thereunder, the Market Committees were not entitled to levy market fee on the goods traded by them. 28. It only remains to consider point No. 4 advanced on behalf of the petitioners by Mr. Bharuka. It was submitted that a Notification in terms of sections 3 and 4 was imperative and in the absence of Notification thereunder, the Market Committees were not entitled to levy market fee on the goods traded by them. Sections 3 and 4 of the Act read as follows :- "3. Notification of intention of exercising control over purchases, sale, storage and processing of agricultural produce in specified area.-(1) Notwithstanding anything to the contrary contained in any other Act for the time being in force, the State Governments may, by notification, declare its intention of regulating the purchase, sale, storage and processing of such agricultural produce and in such area, as may be specified in the notification. (2) A notification under sub-section (1) shall state that any objection or suggestion which may be received by the State Government within a period of not less than two months to be specified in the notification shall be considered by the State Government. 4. Declaration of market area.-(1) After the expiry of the period specified in the notification issued under section 3 and after considering such objections and suggestions as may be received before such expiry and after holding such enquiry as it may consider necessary, the State Government may by notification, declare the area specified in the notification under section 3 or any portion thereof to be a market area for the purposes of this Act in respect of all or any of the kinds of agricultural produce specified in the notification under section 3. (2) On and after the date of publication of the notification under sub-section (1), or such later date as may be specified therein, no municipality or other local authority, or other person, notwithstanding anything contained in any law for the time being in force, shall, within the market area, or within a distance thereof to, be notified in the Official Gazette in this behalf, set up, establish or continue, or allow to be set up, established or continued, any place for the purchase, sale, storage or processing of any agricultural produce so notified, except in accordance with the provisions of this Act, the rules and bye-laws. Explanation.-A municipality or other local authority or any other person shall not be deemed to set up, establish or continue or allow to be set up, established or continued a place as a place for the purchase sale, storage, or processing of agricultural produce within the meaning of this section, if the quantity is as may be prescribed and the seller is himself the producer of the agricultural produce offered for sale at such place or any person employed by such producer to transport the same and the buyer is a person who purchases such produce for his own use or if the agricultural produce is sold by retail sale to a person who purchases such produce for his own use. (3) Subject to the provisions of section 3, the State Government may at any time by notification exclude from a market area any area or any agricultural produce specified therein or include in any market area any area or agricultural produce included in a notification issued under sub-section (1). (4) Nothing in this Act shall apply to a trader whose daily or annual turnover does not exceed such amount as may be prescribed." Section 3, quoted above, provides that the State Government may declare its intention of regulating the purchase, sale, storage and processing of such agricultural produce and in such area, as may be specified in the notification. Interested persons may file objection to the intention of the State Government. On objections/suggestions, the State Government may by notification declare a specified area as market area. After the issuance of notification under section 4 (1), no municipality or other local authority or other person can establish, continue or allow to be set up any place for the purchase, sale, storage, or processing of any agricultural produce. It must be conceded that in order to levy market fee, there must be notification in terms of section 3 in respect of particular agricultural produce. According to Mr. G.C. Bharuka no notification has been issued in terms of section 3. On being pointed out that the notification had been issued in 1974 in that behalf which was Annexure-I to the counter-affidavit filed on behalf of the State bearing No. S.O. 1385 dated 9.9.1974, Mr. Bharuka for the petitioners contended that the said notification did not conform to the requirements of the Act. On being pointed out that the notification had been issued in 1974 in that behalf which was Annexure-I to the counter-affidavit filed on behalf of the State bearing No. S.O. 1385 dated 9.9.1974, Mr. Bharuka for the petitioners contended that the said notification did not conform to the requirements of the Act. It, therefore, could not be considered as compliance of sections 3 and 4. An English rendering of Annexure-I would read as follows so far as is relevant. NOTIFICATION 9 September, 1974. S.O. 1385. - In exercise of powers conferred by section 4 (1) of the Bihar Agricultural Produce Markets Act, 1960, the Governor of Bihar is pleased to declare the area mentioned in Col. 2 as the Market Area for goods mentioned in Col. 3. SCHEDULE Sl. No. Market area in which purchase, Agricultural produce on a sale, storage and processing may purchase, sale, storage and be regulated. processing to be regulated. 1. 2. 3. xx xx xx Areas comprised in Pirbahore, All Agricultural produce Kadam Kuan, Gurdanibagh and mentioned in the Schedule Digha Police Stations in Sadar in terms of Section 2 [1] [a] Subdivision in the district of of the Act. Patna and Sultanganj Police Station in Patna Subdivision. The submission of Mr. Bharuka is that the central theme of the idea is to give protection to agriculturists and farmers. With that objective the State Government is required to apply its mind in regard to particular items, mentioned in the Schedule to the Act; which required protection, and, therefore, it was not open to the State Government to come out with an omnibus notification declaring all goods in terms of sections 3 and 4. His submission is attractive, but it is hyper-technical. It is open to the State Government to regulate the sale and purchase of all goods mentioned in the Schedule. If that be so, I do not see why the State Government cannot issue notification in terms of Annexure-I to the counter-affidavit. It would be piling technicality upon reason to contend that in regard to each item, mentioned in the Schedule there should be a separate notification in terms of section 3. There is no market area in the State when cereal, pulses, oil seeds, oils, fruits, vegetables, fibres, animal husbandry produce, condiments, spices etc. grass and fodder do not require protection. It would be piling technicality upon reason to contend that in regard to each item, mentioned in the Schedule there should be a separate notification in terms of section 3. There is no market area in the State when cereal, pulses, oil seeds, oils, fruits, vegetables, fibres, animal husbandry produce, condiments, spices etc. grass and fodder do not require protection. The producers of tobacco and licensed items mentioned in Part XIII of Schedule I also have their impact in all the market areas in this State. The confusion arises because of a basic mistake about the sweep of the Act. The Act intends to protect not only producers, but also traders. If that aspect is borne in mind, it would be .appreciated that trade in every item, mentioned in the Schedule requires the protecting umbrella of the Agricultural Produce Markets Act. I am, therefore, unable to hold that the notification issued in 1974 by the State Government does not conform to the requirements of sections 3 and 4. 29. Mr. Dipankar P. Gupta appearing on behalf of Gujarat Cooperative Milk Marketing Federation Ltd. contended that the idea behind the Act was not to affect industrial goods and, therefore, the aforesaid Co-operative Society could not be subjected to levy. As already spelt out earlier, from the sweep of the Act, it is difficult to hold that, merely because any item covered by the Agricultural Produce Markets Act if it has undergone some process, it should escape the dragnet of the Act. That was considered and rejected in the case of M/s Mahabir Tea Co. Ltd. and Belsand Sugar Works Ltd. (Supra). 30. Before I conclude, I must observe that prior to August, 1984 Milk was one of the agricultural produce mentioned in the Schedule. Mr. Bharuka was at pains to impress upon us that Baby food was not Milk. I have some difficulty in accepting the bald proposition advanced by Mr. Bharuka. The true nature of the two products 'Lactodex' and 'Lactogen' can be inferred from the name itself. 'Lacto' means milk. It is, therefore, obvious that they are Milk in processed form. It would therefore, include Milk powder. The ambiguity, if any, has been removed by Notification issued on 21.8.1984 bearing S.O. 1002 by which Item No. 9 in Part VIII of the Schedule 'Milk' has been substituted by "Milk (except in liquid form)". 'Lacto' means milk. It is, therefore, obvious that they are Milk in processed form. It would therefore, include Milk powder. The ambiguity, if any, has been removed by Notification issued on 21.8.1984 bearing S.O. 1002 by which Item No. 9 in Part VIII of the Schedule 'Milk' has been substituted by "Milk (except in liquid form)". The effect of the notification thus is that Milk in liquid form is not one of the items falling within the sweep of the Act but milk in any other form would cover that item. It is an artificial concept but the Legislature is not debarred from giving a factual content to an object. Milk powder thus squarely, is included within the sweep of Item 9. So is Ghee, cream, Chhanna ( Nuk ), animal husbandry produce included in the same part of the Schedule. The endeavour of learned counsel for the petitioners to escape the sweep of the Schedule by describing the products as Baby food or Infant food is clearly unfounded. In trying to appreciate the Schedule we have to consider the essential nature of the goods. The mere branding thereof will not carry the day. 31. In fine, my concluded views are :- (i) that the items mentioned as Agricultural produce or produce of Animal husbandry in the Schedule Part VIII are not invalid on account of the Industrial Development and Regulation Act. The field of legislation was/is not occupied as a fact. The case of I.T.C. Ltd. v. State of Karnataka (supra) can be of no assistance to the petitioners. (ii) The Schedule in so far as applied to so-called Baby food does not overreach the object of the Act. That being so, there is no question of any unreasonable restrictions being imposed upon the petitioners will in the meaning of Articles 19 (1) (g), 19 (6) and 304 of the Constitution. Some of the items produced and dealt in by the petitioners are Agricultural produce. (iii) Some of the Baby foods are Agricultural produce, some are not. The items which do not fall within the field of operation of the Schedule are Nestum, Cerelac, Amulspray, Chocolate, Ketchup, Milkafe and Chese. (iv) Such of the Baby foods where Milk in powder form are notified agricultural produce, Notification of 1974 is valid and, therefore, the Market Committees are entitled to levy market fee. The items which do not fall within the field of operation of the Schedule are Nestum, Cerelac, Amulspray, Chocolate, Ketchup, Milkafe and Chese. (iv) Such of the Baby foods where Milk in powder form are notified agricultural produce, Notification of 1974 is valid and, therefore, the Market Committees are entitled to levy market fee. (v) The Market Committee does render some services to the producers. It may be that no service is being rendered to the petitioners, but that is because they are not prepared to come within the umbrella of the Market Committees. If they had spelt out what facilities or services they require, we would have endeavoured to find out their feasibility and how far services could be rendered to them, but the petitioners did not consider it appropriate, may be for a legal strategy to spell them out. (vi) The vires of the Act has been tested and sustained in several cases in this Court. In my view, the petitioners have failed once again to assail its validity successfully. 32. For the reasons, stated above, I find no merit in any of these applications. They are dismissed accordingly with costs. Hearing fee Rs. 250/ = payable by the petitioner in each case to the Bihar State Agricultural Marketing Board. B.N. Agrawal, J. - I agree to the order proposed.