Judgment 1. Heard the parties. 2. The present writ application has been filed by ten different Industrial Units, which are in the trade of manufacturing Plywood in the district of Purnea for a direction to the respondent Bihar State Agricultural Marketing Board for not making any demand of fee in relation to plywood, plyboard etc. unless necessary draft and final notifications with regard to plywood, plyboard etc. are issued under section 3 and 4 of the Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as the Act) for the purpose of their regulation of sale, purchase, storage and processing. A further prayer has been made for quashing the notices, as contained in Annexures 2 and 2/A issued by the Secretary, Agriculture Produce Market Committee, Gulabbagh directing the petitioners for taking licence and payment of fee on plywood, plyboard etc. 3. The contention on behalf of the petitioner is that the market fee cannot be levied and collected under Section 27 of the Act by the respondent Gulabbagh Market Committee on plywood, plyboard etc. without any separate and independent notification issued by the State Government under sections 3 and 4 of the Act in relation to aforesaid commodities for the purpose of bringing these items within the regulatory provisions of the Act. A further contention has been made on behalf of the petitioners that as no notification has been issued by the State Government under sections 3 and 4 of the Act in this regard, as such, the Market Committee was not entitled to regulate, sale, purchase and storage of plywood, plyboard etc. 4. By a bare perusal of Annexure-1 it would transpire that a gazette notification dated 31st August, 2001 issued by the Governor of Bihar had been promulgated under section 39 of the Act adding plywood, plyboard and other four items under title 12 below schedule (Prakirn) 33 being schedule 34 to 39. 5. The contention on behalf of the petitioners is that by only issuing a notification under section 39 of the Act though plywood, plyboard etc. have been added in the schedule of the Act for the first time but for regulating the same, the notification under sections 3 and 4 of the Act was prerequisite. 5. The contention on behalf of the petitioners is that by only issuing a notification under section 39 of the Act though plywood, plyboard etc. have been added in the schedule of the Act for the first time but for regulating the same, the notification under sections 3 and 4 of the Act was prerequisite. It has further been contended that the proviso under section 4(3) of the Act, which was subject to the provisions of section 3 of the Act, cannot be ignored as no notification under section 3 of the Act was there. 6. By filing a counter-affidavit on behalf of respondent Nos. 2 and 3 it has been contended by the learned counsel for the respondents that as plywood was covered under the item wood and as the same was added to the schedule on 12.2.1972, it was liable for assessment under section 27 of the Act and after the notification vide Annexure-1 dated 23.10.2000 plywood is assessable to market fee even if it is produced out of the same wood, which has already been assessed to market fee in the same Market Committee, as in the case of Paddy and rice or wheat and Ata. Though rice and Ata are produce of Paddy and wheat but the same is subject to market fee in spite of the fact that the market fee has been paid on paddy and the wheat. Similarly, though the market fee has been paid on wood, as plywood is the product of the wood it is also subject to assessment under section 27 of the Act and is liable to pay market fee. 7. A further reliance has been made on section 2(i)(a) of the Act under which an article in the schedule and section 3 under which objections are invited exercising control over purchase and sale of different items of agricultural produce followed by section 4(i) whereunder the State" Government may, by notification finally, declare any area to be any market area for the purpose of Market Act in respect of any Agriculture produce and section 15(1) under which such items of Agriculture produce which has been specified in notification under section 4(i) shall be bought and sold only in the Principal Market yard and Sub-Market Yard within a Market area. 8. 8. The Market Committee under section 18(ii) of the Act may issue licence in accordance with rules to traders operating in the market area and under section 27 of the Act, the power is provided to the Market Committee to levy and collect market fee on Agriculture Produce bought and sold in the market area. Rule 98 further provides for licence in Form XXIII which is to be issued on behalf of the Market Committee for carrying out business as traders in Agriculture produce within the market area. The aforesaid Form XXIII clearly envisages that the licence trader shall realise market fee from the buyers and deposit the same in the market committee. Under Section 39 of the Act, the State Government is duly empowered to add any fresh item of Agriculture Produce in the schedule by a notification. The aforesaid notification has already been issued. As such, in view of the same and in view of the provision as discussed above, the market committee was fuly competent to levy tax on plywood, plyboard etc. 9. In this regard, learned counsel for the respondents has relied upon a judgment in the case of Delhi Cloth and General Mills Co. Ltd. vs. The Agricultural Produce Market Committee and Ors., reported in 1992 PLJR 253 in which the matter for consideration was as to whether sugar after having been deleted from the schedule under section 39 of the Act on 2nd May, 1977 was re-introduced on 21st May, 1977 by rescinding a notification dated 2.5.1977 itself and as to whether after a notification of 21.5.1977 as no fresh notification has been issued under sections 3 and 4 of the Act with regard to sugar a Division Bench of this court held that sugar could not be subjected to levy of market fee unless a notification under section 3 and 4 of the Act was issued afresh with regard to sugar. It has further been stated that the wood along with sugar had been deleted and added by the same notification. 10. A further judgment, which has been cited, is of a Division Bench of this court in the case of H.M.P. Sugar Ltd. vs. State of Bihar and others reported in 1994 (1) PLJR 407 by which section 4-A was declared ultra vires and in effect stating therein that sugar remained out of the leviable Item under the Market Act. 11. A further judgment, which has been cited, is of a Division Bench of this court in the case of H.M.P. Sugar Ltd. vs. State of Bihar and others reported in 1994 (1) PLJR 407 by which section 4-A was declared ultra vires and in effect stating therein that sugar remained out of the leviable Item under the Market Act. 11. However, several appeals were filed against the judgment of the High Court before the Supreme Court challenging the validity of section 4-A of the Act and by its decision in Sasa Musa Sugar works and others vs. The State of Bihar & Ors. reported in 1996 (9) S.C.C. 681 decided that both subsections of section 4-A of the Act were valid based on reasons as section 39 of the Act operated independently without the aid of section 3 and 4 of the Act. 12. It has further been contended that aforesaid judgment after quoting the arguments in detail the Supreme Court held in paragraph 32 of the said judgment that wisdom in selecting the fee of control by including the produce in the schedule was exercised initially by the Legislature and thereafter such wisdom has been left to the discretion of the delegated authority mainly the State Government interpreting the proviso of sections 3 and 4 of the Act. In paragraph 33 of the said judgment, the Supreme Court held that once a notification under sections 3 and 4 of the Act is issued specifying the goods to be controlled and the area where the control will operate the other provisions regarding control as contained in section 5 onwards, including the Ivey of fee under section 27 of the Markets Act spring into action. 13. Learned counsel for the respondents has further relied on other observations of the aforesaid judgment to bring home the fact that the Supreme Court has held that exercise of power under section 39 of the Act is altogether a different exercise of power than under sections 3 and 4 of the Act. It has further been contended that after the aforesaid judgment the barrier of sections 3 and 4 in levy of market fee under section 27 of the Act was lifted and sugar became leviable to market fee. 14. It has further been contended that after the aforesaid judgment the barrier of sections 3 and 4 in levy of market fee under section 27 of the Act was lifted and sugar became leviable to market fee. 14. Similarly, it has been contended by the learned counsel for the respondents that in case of wood also as it stands on the same footing as that of sugar and ply wood being layers of wood glued together. The same also comes under the definition of Agriculture produce as wood and initially being deleted, now the same has been introduced and has been made subject to levy of market fee. 15. The counsel for the respondents have also relied on some judgments of the Jharkhand High Court as well as this Court for the same purpose to show that exercise of power under section 39 of the Act is altogether a different exercise than under sections 3 and 4 of the Act. The Patna High Court in the case of Tata Oil Mills and the Supreme Court in the case of Belsund Sugar Company with regard to rice and tea leaves and also in the case of Park Leather Industry with regard to hides and skins covering leather held that the agricultural produce in manufactured form is also covered by the definition of agriculture produce and is leviable to market fee. 16. The contention of the learned counsel for the petitioner is that the judgment of the Jharkhand High Court was under appeal in Letters Patent Apepal no. 18 of 2002 and the judgment of the learned single Judge has been stayed but as far as the judgment of the Supreme Court as quoted above is concerned, it has to be held in exercise of power under section 39 of the Act is altogether a different exercise than that under section 3 and 4 of the Act. 17. 18 of 2002 and the judgment of the learned single Judge has been stayed but as far as the judgment of the Supreme Court as quoted above is concerned, it has to be held in exercise of power under section 39 of the Act is altogether a different exercise than that under section 3 and 4 of the Act. 17. ln view of the discussion as made above, as validity has already been tested before the Supreme Court and the same has been found to be intra vires and as exercise of the power under section 39 of the Act is entirely an independent act and the State Government, which is duly empowered, has already issued a notification adding these items in the items liable for payment of market fee and the impugned notification has been issued by the authority competent to issue the same, is not required to be interfered with. 18. In the result, the writ application fails and is, accordingly, dismissed.