JUDGMENT Kamlesh Sharma, J.: These appeals (Cr. Appeals No.392/93, 57/94, 58/94 69/94,71/94 and 119/94) are being disposed of by a common judgment as each of these arise out of the impugned judgments of acquittal under Section 32 of the H.P. Agricultural Produce Markets Act. 1969 (herein-after referred to as the Act) on the ground, inter-alia, that notification under Sections 3(19) and 4(1) of the Act notifying District Hamirpur as market area was not published as provided under Rule 5 of the H.P. Agricultural Produce Market Rules, 1971 (herein-after referred to as the Rules). The appellant-Secretary Market Committee, Hamirpur is aggrieved by the impugned judgments of acquittal and has filed these appeals to point out that sub Section (4) of Section 4 was not kept in view while passing the impugned judgments which clearly shows that the mode of publication prescribed under Rule S of the Rules is only directory and if the notifications under Sections 3 and 4 of the Act are not proved to be published in accordance with the said mode it does not make the notifications nonest if these are in fact published in the Official Gazette of which the Courts should take judicial notice. 2. In order to appreciate the grievances of the appellants reference to sub Section (19) of Section 3 and sub Sections (1), (3) and (4) of Section 4 and Section 32 of the Act as well as Rule S of the Rules is necessary. Sub Section (19) of Section 3 procides that Himachal Pradesh Marketing Board with the prior approval of the State Government may issue notification declaring its intention to exercise control over the purchase, sale, storage and processing of any agricultural produce in any area and invite objections or suggestions within a period specified therein which will not be less than one month. Under sub Section (1) of Section 4 on the expiry of period specified in the notification under sub Section (19) of Section 3 and after considering the objections and suggestions received, the Board may issue further notification in the manner prescribed declaring the areaor any portion thereof as notified market area for the purpose of the Act in respect of the agricultural produce or any part thereof notified under Section 3. Further under sub Section (3) of Section 4 after the notification under sub Section (1), of Section 4 comes into force, no person, unless exempted by rules framed under this Act, shall, either for himself or on behalf of another person, or of the Government within the notified market area, set up, establish or continue or allow to be set up, established or continued any place for the purchase, sale, storage and processing of notified agricultural produce within notified market area except under a licence granted in accordance with the provisions of the Act, the Rules and bye-laws made there under and the conditions specified in the licence granted in accordance with the provisions of the Act, the Rules and bye-laws made there under and the conditions specified in the licence. It is further clarified by proviso to sub Section (3) of Section 4 that producer who sells himself or through a bonafide agent, not being a commission agent, his own agricultural produce or the agricultural produce of his tenants or a person who purchases any agricultural produce for his private use does not require a licence. Sub Section (4) of Section 4 is material for the purpose of the controversy raised in these appeals and it provides:- "(4) For the removal of doubts, it is hereby declared that a notification published in the Official Gazette under this Section or Section 3 shall have full force and effect notwithstanding any omission to publish or any irregularity or defect in the publication of a notification under this Section or under Section 3, as the case may be." 3. Rule 5 of the Rules prescribes the mode of publication of copies of notification issued under sub Section (19) of Section 3 and Sec. 4 of the Act. Rule 5 of the Rules prescribes the mode of publication of copies of notification issued under sub Section (19) of Section 3 and Sec. 4 of the Act. It is > "5 (I) Copies of a notification issued under Sections 3(19) and 4 of the Art shall he published in one or more of the under mentioned modes under the orders of the Chairman of the Himachal Pradesh Marketing Board :- (1) in Hindi and if necessary in English language in all such newspapers as the Chairman may decide; (ii) the Board will give publicity among persons likely to be affected by of interested in the sale and purchase of agricultural produce in the proposed notified market area :- (a) in affixing a copy of die notification in Hindi and if necessary in English language as may be considered expedient by the Chairman of the Board in the Office of every Municipal Corporation, Municipal Committee. Small Town Committee, Notified Area Committee, Panchayat and/or any other organisation or society, if any, within whose jurisdiction the notified market area or any part thereof is situated and some conspicuous place (s) in the existing market; if any; (b) by affixing a copy of the notification in Hindi, and if necessary, in English language as may be considered appropriate by the Chairman of the Board in the principal common meeting place or any rendezvous of interest, of any, of every village in the countryside within the notified market area; and (c) by beat of drum in the villages within the notified market area. (2) The time of publication under clause 6(i)(ii)(a) (b) and (c) and the time and frequency of the drum-beating under clause (c) shall be determined by the Chairman Himachal Pradesh Marketing Board. (3) Expenses of notification. The expenses of the publication under sub-rule, (1) of the notification issued under Sections 3(19) and 4 of the Act shall be met out by the Government of Himachal Pradesh." 4. (3) Expenses of notification. The expenses of the publication under sub-rule, (1) of the notification issued under Sections 3(19) and 4 of the Act shall be met out by the Government of Himachal Pradesh." 4. The perusal of these provisions leaves no doubt that the notification under sub Section (19) of Section 3 and Section 4 are required to be published in the manner prescribed which has been provided under Rule 5 of the Rules but in view of Sub Section (4) of Section 4 any omission or any irregularity or any defect in the publication of the said notifications will not in any manner affect the enforcement of these notifications after their publication in the Official Gazette. No doubt Rule 3 of the Rules prescribes that the copies of notifications issued under sub Section (19) of Sections 3 and S.4 of the Act should be published in one or more of the modes stated therein yet omission to follow the said mode will not render the said notifications published in the Official Gazette as nonest. If the mode prescribed under Rule 5 of the Rules is considered as mandatory the provisions of sub Section (4) of Section 4 will become redundant which is not permissive in law. Rules cannot over - ride the provisions of the Act as these are the subordinate legislation and Rules are required to be consistent with the Act. In the present case, rules are made under Section 33 of the act which provides that the State Government may make rules, consistent with the Act, for carrying out all or any of the purposes specified in the Act. A list of 24 items has been provided for which the rules may provide for, the perusal of which shows that none of them pertains to the mode of publication of the notifications under sub section (19) of Section 3 and Section 4 of the Act. If Rule 5 of the Rules is made under the general powers as given under sub Section (1) of Section 33, it cannot be inconsistent with the provisions of sub Section (19) of Section 3 and Section 4 of the Act. If Rule 5 of the Rules is made under the general powers as given under sub Section (1) of Section 33, it cannot be inconsistent with the provisions of sub Section (19) of Section 3 and Section 4 of the Act. If the notification is considered as nonest even after its publication in the Official Gazette on the ground that it is not published in the manner as prescribed in Rule 3 it will be inconsistent with sub Section (4) of Section 4 of the Act. In order to give harmonious construction to all these provisions, this Court has no hesitation to hold that if notification issued under sub Section (19) of Section 3 and sub Section (1) of Section 4 is published in the Official Gazetted and is not published in the manner provided under Rule 3 it cannot be considered as nonest and it will be enforced in full. In fact, once the word notification is used under any statute, more specifically, promulgated by the State it is required to be published under proper authority in the Official Gazette as per the definition of the word notification given in sub Section (30) of Section 2 of Himachal Pradesh General Clauses Act, 1968. This definition of notification was before the Legislation at the time of promulgation of the act, therefore, it is provided in sub Section (4) of Section 4 that once notification is published in the Official Gazette it will have full force and effect notwithstanding any ommission, irregularity or defect in its publication, which may be prescribed at any other place in the Act or in the Rules. 5. For taking this view, this Court takes support from a judgment of Division Bench of this Court in Khushi Ram v. State of H.P. & Ors., I.L.R. 1982 (Himachal Series) 101, wherein dealing with exactly the same point the learned Judges have repelled the argument that non-Publication of notification in accordance with the mode prescribed under Rule 3 of the Rules makes the notification under sub Section (19) of Section 3 bad on the ground that sub Section (4) of Section 4 provides that any omission, irregularity or defect in publication of notification is of no effect if it is published in the Official Gazette. Judgment in State of H.P. v. Narinder Kumar & Ors., 1993(1) C.L.R. 652, cited by learned counsel for respondent, does not apply in the present case as it pertains to Himachal Pradesh Land Preservation Act, 1978 wherein there is no provision similar to the provision of sub Section (4) of Section 4 in the absence of which the mode prescribed for the publication of the notification has been held mandatory. Therefore, the case of the appellant was wrongly rejected on the ground that respondents were not liable to take licence under sub Section (3) of Section 4 of the Act as notifications under sub Section (19) of Section 3 and sub Section (1) of section 4 were not published in accordance with the mode prescribed under Rule 5 of the Rules. The Court could take judicial notice of the notifications issued under sub Section (1) of Section 4 which was published in the Official Gazette (Ordinary) of 15th August, 1981 at page 1188. It is not in dispute that notification under sub Section (19) of Section 3 was also published in the Official Gazette. 6. Before this Court discusses the facts of each case to examine whether the appellants were able to prove each case on merits it may be pointed out that by a recent judgment of Supreme Court in Bhagwan Dass Sood v. State of H.P. & Ors., (1997) 1 SCC 277, it has been held in no uncertain words that :- "Under the Markets Act any trader or dealer dealing in scheduled agricultural produce within a notified market area is under an obligation to obtain a licence under Section 4(3) of the Markets Act. Such obligation is not confined to wholesalers of agricultural produce or intermediate dealers indulging in wholesale and retail business but also to retail traders like the appellant...........................................Requirement for obtaining a licnece is mandatory under Section 4(3) of the Markets Act. Validity of imposition of levy on certain items of agricultural produce on the score of exemption on account of single point levy, is entirely a different exercise and exemption from liability on such score in respect of trading activities in question does not entitle a dealer of agricultural produce within a specified market area to refuse to take licence under Section 4(3) of the Markets Act................. The dealers and traders are required to take licence for their trading activities in such area in respect of specified agricultural produce so that their trading activities are monitored and controlled and they may not escape the liability of imposition of market levy." 7. The Supreme Court has also summarised the legal position regarding constitutional validity of levy of market fee asunder:- "(1) Existence of quid pro quo is essential for retaining the character of fee in the matter of levy of market fees. (ii) Such quid pro quo is not to be reckoned with any mathematical precision with reference to quantum of fees realised by imposition of levy and the percentage of such fees spent for establishing market yards, construction of various infrastructures etc. and providing various amentities as envisaged under the Marketing act and the Rules framed there under for effective implementation of aims and objectives under the Act. (iii) The service to be rendered to the payers of market fee mutt be real and not illusory. (iv) Such service must have an objective basis and have a direct link and not be remote in its effect. (v) It is not necessary-that imposition of levy is to be effected only on establishment of principal and sub-market yards by "completing the infrastructures required for such establishment of market and sub market yards. Such construction being time- consuming and expenditure -oriented, it will be sufficient to justify valid imposition of levy if it is demonstrable that after notifying market area, effective steps not in contemplation but in reality have been taken to identify market and sub-market yards and schemes for establishment of such market or sub-market yards and schemes fees levied and realised are being ploughed back for the advancement of the purpose for which market fees have been levied and realised. (vi) In deciding the question of rendering of a real and not illusory service in discharging the obligation emanating from quid pro quo, to levy of market fee, no straitjacket formulae can be evolved. Fact-situation in the matter of establishment of principal and sub-market yards and the practical feasibility of construction of infrastructures, roads, pathways etc. for establishment of such market yards within a time-frame and in the light of financial constraints is bound to vary depending on various factors including imponderables. Fact-situation in the matter of establishment of principal and sub-market yards and the practical feasibility of construction of infrastructures, roads, pathways etc. for establishment of such market yards within a time-frame and in the light of financial constraints is bound to vary depending on various factors including imponderables. It is, therefore, essentially necessary to take a pragmatic approach to the problems associated with establishing market and sub-market yards with necessary infrastruc etc. and accompanying facilities and amentities to be made available to traders and producers coming to such yards, in order to decide whether concrete steps have been translated into action with reasonable sincerity in implementing the schemes envisaged under the Marketing Act and the Rules framed there under." 8. Applying the law laid-down by the Supreme Court to the facts of the present case, this Court has no hesitation to hold that respondents are liable to take licence under sub Section (3) of Section 4 of the Act, once it is proved or admitted by any of them that they deal in purchase, sale, storage and processing of the agricultural produce in any place set up or established in the notified market area unless they are not exempted under the Rules framed under the Act and provided they are producers as defined under sub Section (h) of Section 2 of the Act. Requirement of obtaining the licence and liability to pay market fee are two different aspects and one cannot object to obtaining the licence on the ground of exemption from payment of market fee. If a person is not liable to pay market fee being hawker or petty retail shopkeeper he may get exemption from the prescribed authority alter obtaining licence as prescribed under sub Rule 3 of Rule 10 of the Rules, Sub Section (3) of Section 4 and Rule 10 cannot be given such m interpretation a to give liberty to a person to presume himself that he falls under the exemption clause mi need not take licence. The respondents have made such a presumption in their favour and has not obtained licence and even if obtained for some time they did not get it renewed. The respondents have made such a presumption in their favour and has not obtained licence and even if obtained for some time they did not get it renewed. Therefore, they are given three months time from the date of this judgment to take licence and thereafter apply for exemption if they are not liable to pay the market fee having fallen under some exemption prescribed in the Act and the Rules. 9. Coming to the facts of each case, in Criminal Appeal No.392 of 1993, the proprietor of the respondent-firm Roop Lal Rattan Chand in his statement under Section 313 Cr. P.C. has admitted that he deals in food grains and oil etc. and he did not obtain licence under sub Section (3) of Section 4 of the Act. It is proved by the prosecution evidence that respondent was registered under the H.P. General Sales Tax Act for the purposes of sales tax w. e. f. 7.11.1966 and he is not a petty shopkeeper who could be exempted from taking licence and payment of market, fee. Therefore, in view of the evidence on record, offence under Section 32 of the Act is proved against the respondent and its proprietor Roop Lal is convicted and sentenced to the fine of Rs.500/-. In the event of his failure to deposit this fine within a period of one month he is liable to undergo imprisonment for a period of 90 days. The appeal is allowed in these terms. 10. In Criminal Appeal No, 57 of 1994, the respondent was convicted and sentenced with fine of Rs.50/- under Section 32 of the Act by the Chief Judicial Magistrate, Hamirpur and in default of payment of the fine its proprietor Krishan Kumar was to undergo simple imprisonment for a period of 10 days. The judgment of Chief Judicial Magistrate was opposed by the Sessions Judge, Hamirpur by his judgment dated 4.11.1993. It is not only proved by the prosecution evidence but also admitted by Krishan Kumar, the proprietor of the respondent-firm, that he deals in Food Grains and Pulses in the market of Nadaun and the respondent-firm is registered under the H.P. General Sales Tax Act for the purposes of sales tax w. e. f. 13.5.1961. It is not only proved by the prosecution evidence but also admitted by Krishan Kumar, the proprietor of the respondent-firm, that he deals in Food Grains and Pulses in the market of Nadaun and the respondent-firm is registered under the H.P. General Sales Tax Act for the purposes of sales tax w. e. f. 13.5.1961. He has admitted that he has not obtained licence under sub Section (3) of Section 4 of the Act on the ground that they bring food grains and pulses etc, from Delhi, Punjab and Chandigarh for sale in their shop. Therefore, from the prosecution evidence on record offence under Section 32 of the Act is proved against respondent - firm and the impugned judgment dated 4.11.1993 is set aside and conviction of its proprietor, namely, Krishan Kumar, under Section 32 of the Act is upheld. He is sentenced to a fine of Rs.500/-. In the event of his failure to deposit this fine within a period of one month ho is liable to undergo imprisonment for a period of 90 days. Hence, the appeal is disposed of in these terms. 11. The Criminal Appeal No.58 of 1994 is against the judgment dated 8.9.1993, passed by Chief Judicial Magistrate, Hamirpur, whereby respondent was acquitted of offence under Section 32 of the Act. It has come in the cross-examination of sole prosecution witness Karam Chand, Secretary Market Committee, Hamirpur, (CW-1) that the respondent has neither obtained any licence nor it is registered with the Department of Food and Civil Supplies. It is admitted that since the respondent had filed writ in the High Court a complaint has been filed against it. In his statement, Jagdish Chand, partner of respondent-firm, has taken the stand that he has not taken the licence under sub Section (3) of Section 4 of the Act as he is a petty shopkeeper and comes under exemption. In view of this evidence, the prosecution has failed to prove that respondent is liable to be punished under Section 32 of the Act. Therefore, the impugned judgment is upheld and the appeal is dismissed to this extent. 12. In Criminal Appeal No. 69 of 1994, by the impugned judgment dated 15.6.1993 passed by Chief Judicial Magistrate, Hamirpur, the respondent is acquitted of offence under Section 32 of the Act. In his statement under Section 313 Cr. Therefore, the impugned judgment is upheld and the appeal is dismissed to this extent. 12. In Criminal Appeal No. 69 of 1994, by the impugned judgment dated 15.6.1993 passed by Chief Judicial Magistrate, Hamirpur, the respondent is acquitted of offence under Section 32 of the Act. In his statement under Section 313 Cr. P.C. the proprietor of respondent-firm Nanak Chand has taken the defence that since he does not bring food grains etc. from outside he is not liable to take licence under sub Section (3) of Section 4 of the act. However, from the prosecution evidence, it is proved that he deals in food grains etc. and is liable to take licence. He is not a petty shopkeeper as he is registered under the H.P. General Sales Tax Act w. e. f. 1969. Therefore, offence under Section 32 of the Act for dealing in agricultural produce without licence stands proved against him. Hence, he is convicted and sentenced to a fine of Rs.500/- under Section 32 of the Act. In the event of his failure to deposit this fine within a period of one month he is liable to undergo imprisonment for a period of 90 days. The appeal is allowed in these terms. 13. Criminal Appeal No.71 of 1994, is against the judgment dated 15.6.1993, passed by Chief Judicial Magistrate, Hamirpur, where by respondent is acquitted of offence under Section 32 of the Act. From the prosecution evidence it is proved that respondent-firm deals in general merchandise including the agricultural produce. It is registered under H.P. General Sales Tax Act w. e. f. 1967. In his statement under Section 313 Cr. P.C. the proprietor of respondent-firm Sohan Lal has denied that he deals in food grains and he is liable to take licence under sub Section (3) of Section 4 of the Act. But in the totality of evidence on record, it is held that respondent-firm deals in agricultural produce and is liable to take licence. Hence, offence under Section 32 of the Act is proved against the respondent and its proprietor Sohan Lal is convicted and sentenced to a fine of Rs.500/-. In default of payment of fine within a period of one month he is liable to undergo imprisonment for a period of 90 days. The appeal is allowed in these terms. 14. Hence, offence under Section 32 of the Act is proved against the respondent and its proprietor Sohan Lal is convicted and sentenced to a fine of Rs.500/-. In default of payment of fine within a period of one month he is liable to undergo imprisonment for a period of 90 days. The appeal is allowed in these terms. 14. Criminal Appeal No. 119 of 1994, by the impugned judgment dated 8.9.1993, passed by Chief Judicial Magistrate, Hamirpur, whereby the respondent is acquitted of offence under Section 32 of the Act. Its proprietor Prem Chand has denied that he deals in food grains and edible oils etc. and claimed that he is a petty shopkeeper and is not liable to obtain licence. To prove its case, the prosecution has produced only Karam Chand (CW-1) the Secretary, Municipal Committee, Hamirpur, who has admitted in his cross-examination that he has filed complaint against the respondent-firm since it had filed writ petition in the High Court, He is not able to prove that respondent - firm was registered under the H.P. General Sales Tax Act and with department of Food and Civil Supplies for the purpose of sale of food grains etc. On thiskind of evidence it is difficult to hold the respondent-firm guilty under Section 32 of the Act. Therefore, the acquittal of respondent is justified and it is upheld. 15. Accordingly the appeals are disposed of.