- (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, Veneer and have got their place of business at their respective places. The State of Bihar vide S.O. 256 dated 31-8-2000 added plywood, ply Board, ply Patti, Core and Veneer in the schedule attached to the Bihar Agricultural Produce Market Act, 1960 under Section 39 of the said Act. Since such notification, the Market Committee 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. The petitioners through their association, namely, Bihar Plywood Manufacturer Association protected against the addition 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. 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 respondents 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. 2A. 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 by-product of wood. 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 30-9-2000 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. 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. 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.
(3.) 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 and 4 of the Act is followed. Reliance was placed on the decision of the Patna High Court in Shree Biharijee Mills Ltd., reported in 1983 PLJR 408 and the decision of the Supreme Court in Belsund Sugar's case, reported in (1999) 9 SCC 620. It was pointed out that in the instant case though wood'has been notified as Item No. XII Misc. at Serial No. 15, Bomboo'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. 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 58 (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.;