JUDGMENT
S.J. Mukhopadhaya, J.
1. The writ petition has been preferred by petitioners for direction on the respondents to refund the market fee already collected from the petitioners in pursuance of Notification No. 2561 dated 31.8.2000 and to restrain the respondent Market Committee from realising the market fee in respect of Plywood, Ply Board. Ply Patti. Core. Fali and Veneer pursuant to the said notification No. 2561 dated 31.8.2000.
2. The petitioners are proprietorship firms except petitioner No. 2 which is a registered partnership firm. They claimed to be carrying business in selling Plywood. Ply Board, Ply Patti, Core. Fali, Vaneer and have got their place of business at their respective places. The State of Bihar vide S.O. 2561 dated 31.8.2000 added Plywood, Ply Board, Ply Patti, Core and Veneer in the schedule attached to tbe Bihar Agricultural Produce Market Act. 1960 under Section 39 of the said Act. Since such notification, the Market Com-mittee started realising market fee from petitioners and others in respect to sale/purchase of Plywood, Ply Board, Ply Patti. Core. Fali and Veneer. In support of which – purchase/sale receipt dated 20.11.2000 has been enclosed as Annexure 2.
3. The petitioners through their association, namely, Bihar Plywood Manufacturer Association protested against me addi-
tion of the aforesaid items in question by letter dated 14.1.2000 to the Managing Director of the Bihar State Agriculture Market Committee (Market Committee for short) whereinafter no action having taken, the writ petition has been preferred by petitioners.
4. The petitioners have challenged the jurisdiction of Market Committee to collect market fee in respect to items in question on different grounds including the action of respondent in not calling objection under Section 3 of the Act and not declaring a market area on receipt of such objection under Section 4 of the Act.
According to petitioners, the Plywood, Ply Board are made of selected high density timber manufactured from forest wood with the help of other chemicals. The ratio of wood is 50% and other concentrates about 50% entirely a different commodity being byproduct of wood.
5. The case of the petitioners is that though the commodities in question had been specified in the schedule under Section 39 of the Act vide Notification dated 30.8.2000 but after such inclusion in the schedule, a notification was required to be issued under Section 3 of the Act declaring the intention of the State that it wanted to regulate the purchase, sale, storage and processing of those commodities in such area by specifying the items in the notification.
6. Further case of the petitioners is that no notification under Section 3(2) of the Act inviting objection from aggrieved persons has been issued though no such objection was required to be called for at the time of inclusion of items in the schedule under Section 39 of the Act in view of Section 4A of the Act.
7. It is pleaded that since no objection under Section 3 of the Act has been invited, the provision of Section 4 of the Act has not been complied in respect to items in question specifying or declaring the market area in respect of agricultural produce in question, namely. Plywood, Ply Board, Ply Patti, Core, Fali and Veneer.
8. Counsel for the petitioners submitted that mere inclusion of Items in the schedule does not automatically permit the respondents to collect market fee on any of the commodities till procedure under Sections 3 & 4 of the Act is followed. Reliance
was placed on the decision of the Patna High Court in Shrce Biharijee Mills Limited. reported in 1983 PUR 408 and he decision of the Supreme Court in Belsund Sugar’s case, reported in (1999) 9 SCC 620.
9. It was pointed out that in the instant case though ‘wood’ has been notified as Item No. XII Misc. at Serial Mo. 15, ‘Bamboo is Item No. 14 and ‘Wood Dhoop’ Item No. 16 but ‘Plywood’. ‘Ply Board and other commodities notified in the Notification No. 2561 dated 31.8.2000 do not find place in the schedule prior to its inclusion made under Section 39 of the Act.
10. It was suggested that the Plywood. Ply Board. Ply Patti. Core, Fali and Veneer are different than the wood and in common parlance, the meaning of these items are different than the wood. Reliance was placed on Ranchi Timber’s case, reported in 1985 BLT 57 (Report), wherein it was held that a standing bamboo clumps and trees in coups of forest do not come within the ambit of bamboo and wood.
11. Counsel tor the petitioners also placed reliance on the decision of the Supreme Court in I.T. Commissioner, A.P. v. Taj Mahal Hotel, reported in AIR 1972 SC 168 to suggest that the definition of a word if not given should be construed in its popular sense if it is a word of everyday use. “Popular sense” means “that some which people con-servant with the subject matter with which the statute is dealing, would attribute to it.”
12. Counsel for the petitioners relied on Section 27 of the Act relating to levy and collection of market fee on the agricultural produce. It was suggested that the illustration attached to Section 27 of the Act that the Paddy sold in a market area as well as rice produced from such paddy both shall be leviable has been inserted vide Act. 60 of 1982 In view of judgment in Ram Chandra Kailash Kumar & Company v. State of U.P., reported in AIR 1980 SC 1124, wherein the Court held that the notification under the UP Act do not impose multi point levy of market fee either in the same market area or in different market area and held that paddy is purchased in a particular market area by rice miller and if the same paddy is converted into rice and sold then the rice miller will be liable to pay market fee on his purchase. He cannot be asked to pay market fee over and again
under Sub- section 3 of the said Act in relation to transaction of rice.
13. Reliance was also placed on the decision of the Supreme Court in Edward Keventer Pvt. Ltd’s case reported in (2000) 6 SCC 264. wherein the Court held that the fruit drinks “frooti” and “Appy” manufactured and marketed by the company were not covered by “Mango” and “Apple” specified in Items No. 1 and 13 of the schedule and as such not agricultural produce. In para 5 of the said judgment, different other agricultural produce have been discussed like wheat which is treated as a separate agricultural produce as compared to its own product manufactured out of “Wheat”, namely, ‘Atta’, ‘Sujji’ and ‘Maida’. Similarly, the schedule shows that under the caption “animal hus-bandary product”, milk excluding liquid milk is specified at Item 19 whereas “butter”, “ghee”, “cream”, “chena” and “Khoya” which are manufactured out of milk have been separately specified at Items 7, 8, 16, 17 and 19 respectively.
14. Counsel for the petitioners while relied on the example of “frooti” and “appy”. submitted that in the same manner as after processing/manufacturing wood loses its original identity, not known as wood but a different commodity and those items were not mentioned in the earlier schedule, prior to 31.8.2000. no market fee used to be collected by the Market Committee from the trader for Plywood or other items. According to counsel lor the petitioners, the respondents had knowledge that the articles in question are different than the wood and others, which was the reason to specify the items in the schedule for the first time on 31.9.2000.
15. Counsel for the respondents relied on (unreported) decision of this Court in Sarita Lamination Private Ltd. v. State of Bihar and Ors. in CWJC No. 3580/2000(R). disposed of on 17.10.2000. In the said case, the notification dated 31.8.2000 issued by the State Government under Section 39 of the Act. 1960 amending schedule inserting items like Plywood, Ply Board. Ply Patti. Core. Fali and Veneer etc. was challenged. The said notification was attacked on the ground that it was issued without inviting any objection and complying the provision ol Section 3 of the Act. nor any notification under Section 4 followed. In Ihe said case, this Court taking
into consideration the provision of Section 39 and Section 4A of the Act. upheld the notification dated 31.8.2000 and held that no separate notification under Section 3 and 4 of the Act was required to be issued. However. the counsel for the petitioners distinguished the aforesaid decision in Sarita Lamination Private Ltd. (supra) and submitted that the petitioners of the present case are not challenging the insertion of the items by amendment of schedule under Section 39 of the Act but for the purpose of realisation of market fee an area to be notified after calling for objection in respect to items following procedure under Sections 3 & 4 of the Act. Reliance was placed on gazette notifications issued on 5.12.1989 vide Annexure-4, by way of example thereby one or other area was declared as market area in respect to items like Potato. Onion. Vegetables. Edible oil, Sugar, Mohua etc. It was pointed out that though the aforesaid Items are in the schedule but separate notification have been issued after following under Sections 3 & 4 and under Section 5(2) of the Act.
16. Counsel for the respondents placed reliance on Division Bench decision of the Palna High Court in Tata Oil Mills Co., Ltd. v. Director, Marketing Board, reported in 1986 PLJR 172 and the definition of agricultural produce as substituted by Act 60 of 1982. The Palna High Court in Tata Oil Mills Co., Ltd. (supra) taking into consideration the new definition of agricultural produce, held that the new definition has been introduced in the background of controversies raised in different Courts as to whether agricultural produce shall include even the manufactured products of agriculture, horticulture, animal husbandry etc. It held that in clear and unambiguous term that ‘agricultural produce’ shall mean not only the product of agricultural, horticulture, animal husbandry, forest etc. in its original form, but also what has been processed and manufactured from such original products. Ihe definition has to a great extent delinked “agricultural produce” from the schedule of the Act. Reference to the schedule of the Act is only in the context of the agricultural produce and inclusive of ail produce of agriculture, horticulture, plantation, animal husbandry, forest, sericulture, pisiculture, livestocks or poultry including the processed and manufactured products of such produce.
Under the new definition whether a produce or product thereof has been specified in the schedule is not of much consequence for being held as an agricultural produce. The only thing which has to be established is as to whether the item in question is a processed or non-processed or manufactured product of agriculture, horticulture, plantation, animal husbandry, forest, sericultural. pisiculture. livestock or poultry. The introduction of the words ‘and includes’ is very significant.
17. In the present case, the inclusion in the schedule made in respect to Plywood, Ply Board, Ply Patti. Core, Fall and Veneer under Section 39 of the Act is not under challenge. In the background, it is not necessary to discuss whether any opportunity of hearing before addition of such items in the schedule was required to be given or not.
18. It may be pointed out that the Supreme Court in Saaa Musa Sugar Works and Ors. v. State of Bihar, reported in (1996) 9 SCC 681 while held that hearing is required in the case of deletion, further held that no such hearing required to be given for addition in view of Section 4A of the Act.
19. The only question arises as to whether after inclusion of Plywood. Ply Board. Ply Patti. Core. Fali and Veneer in the schedule, the provision of Sections 3 & 4 of the Act to be followed before realisation of market fee in respect to such items or not.
20. If it is held that the ‘wood’ includes Plywood, Ply Board, Ply Petti. Core, Fali and Vaneer then the question to be answered in negative i.e. no requirement to follow the provision of sections 3 & 4 of the Act. Once the market area for base produce, namely, ‘wood’ is notified following the procedure. On the other hand, if it is held that ‘wood’ does not include Plywood, Ply Board. Ply Patti, Core, Fali and Vaneer, it is to be answered in positive in favour of petitioner i.e. the provision of Sections 3 & 4 of the Act is necessary to be followed before collection of market fee.
21. In the case of Edward Keventer
Pvt. Ltd. (supra), the supreme Court while considering the issue as to whether ‘Frooti’ and ‘Appy’ as Mango and Apple products respectively or not in the light of definition of agricultural produce, the Court held as follows:
“A perusal of Section 2(1)(a) unambiguously shows that the agricultural
produce which is to be covered by the sweep of the Act necessarily has to be specified in the schedule. If any agricultural produce are not specified in the schedule, it goes beyond the purview of the Act and the respondent has no power to levy fee on such produce. In the schedule under the caption “fruits” mango and apple have been specified as agricultural produce. We further find in the schedule that under the caption “cereals” wheat is specified at Item 3, whereas “wheat atta”, “Sujji” and “Maida” which are the products of wheat are separately specified at Items 14. 15 & 16, respectively. This shows that the agricultural produce “Wheat” has been treated as a separate agricultural produce as compared to its own product manufactured out of “Wheat” namely. “Atta”. “Sujji” and “Maida”. “Atta”. “Sujji” and “Maida” are basically the agricultural products of “Wheat”. Similarly, the Schedule shows that under the caption “Animal Husbandry Product”, milk excluding liquid milk is specified at Item 19 whereas “butter”, “ghee”, “cream”, “chena” and “khoya” which are manufactured out of milk are separately specified at Items 7. 8. 16, 1-7 and 19 respectively. Under the caption “Miscellaneous”, “Mango Pickles” is specified at Item 18. “Mango pickles “are a product of mango, which is a fruit, and specified in the schedule but “mango pickles” have been specified separately. This shows that the basic ingredients may be the same but the end product which is known differently is treated as a separate item. It is true that “Frooti” and “Appy” are manufactured out of mango pulp and apple concentrated, but after the mango pulp and apple concentrated are processed and beverages are manufactured, the products become entirely different items and the fruits, mango and apply, lose their identity. In common parlance, these beverages are no longer known as mango and apple or as fruits. In other wards, after processing mango pulp and apple concentrated, although the basic character of the mango pulp and apple concentrated may be present in beverages, but the end products are not fruits i.e. mango and apple which are specified in the schedule. Our views also
find support from a constitution Bench decision of this Court in the case of Bel-sund Sugar Co. Ltd. v. State of Bihar wherein it was held that Lactodex and Raptakos which are baby food do fall under the description milk, specified in the schedule of the Act. Under such circumstances, we find that the products like “Frooti” and “Appy” which are ready to serve beverages not being specified In the schedule are not covered by the term agricultural produce, as definited in Section 2(1)(a) of the Act.”
22. In the present case, it has not been disputed that Plywood. Ply Board. Ply Patti. Core. Pali and Vaneer are agricultural produce which is the reason they have been included in the schedule vide notification dated 31.8.2000 which has been upheld by this Court in Sarita Lamination Private Ltd. (supra).
23. The petitioners have specifically pleaded that the Plywood. Ply Board are made of selected high density timber. They are manufactured from forest wood with the help of other chemicals having ratio of wood about 50% and other concentrated about 50% and is a by-product of wood. Once it is accepted then it comes within the mischief of amended definition of agricultural produce as laid down under Section 2(1)(a) of the Act as an agricultural produce includes all produce whether processed or non-processed if specified in the Schedule.
24. In the case of Tata Oil Mills (supra), the Patna High Court taking into consideration the new definition of agricultural produce, held that a produce or product thereof as specified in the Schedule is not of much consequences but only thing which has to be established is as to whether the item in question is a processed or non-processed or manufactured produce of agriculture, horticulture, forest etc. or not. The introduction of the words ‘and includes’ is very significant and relevant for the purpose of such decision. The Ply wood. Ply Board. Ply Patti, Cors, Fali and Veneer having accepted to be a product of forest wood, having manufactured on processing wood with other concentration and being a by-product of wood heaving accepted by the petitioners, the market area for wood having notified, no further notification required to be issued under Sections 3 & 4 of the Act for collection of market fee in respect
to Ply wood. Ply Board, Ply Patti, Core. Fali and Veneer. Thus, the question as to whether the wood includes Ply wood. Ply Board, Ply Patti, Core. Fali and Vaneer having answered in favour of respondents, no relief can be grarted as sought for by the petitioners.
25. Accordingly, the writ petition is dis
missed.
26. Petition dismissed.
