1. Defendant is in appeal.

2. Plaintiff filed suit seeking decree of declaration to the effect that memo number 1795 dated 13.09.1990 issued by defendant No.3 is illegal, and void and against the provision of Punjab Agricultural Produce Markets Act, 1961. Plaintiff further sought decree of permanent injunction seeking restrain against the defendants from recovering any amount from him on the strength of notice under challenge. Plaintiff claimed that he is in business of manufacturing Dal, Besan etc. since 1988. He purchased Gram from various markets within and out of the State of Punjab. He maintains record relating to sale and purchase of the stock of the commodities in its ordinary course of business and submits statements regarding the purchase of Gram in auction from the local market yard and paying market fee along with RDF payable thereon from time to time.

3. His record was checked and inspected by defendant No.3 on 31.08.1999. Nothing wrong or irregular was found or pointed out. However, defendants served upon him memo dated 13.09.1990 which is illegal and void.

4. Suit was contested by the defendants. Apart from challenging the maintainability of the suit, defendant on merits claimed that plaintiff is carrying on business as a manufacturer of Dal and Besan. He is liable to pay market fee as well as R.D.F. on the agricultural produce brought by him in the territorial jurisdiction of Market Committee, Fazilka.

5. On the basis of pleadings, the Court of the first instance framed following issues: -
"1. Whether the memo in dispute bearing no.1795 of dated 13.9.90 issued by defendant No.3 is and void? OPP.
2. Whether the plaintiff firm is entitled to the injunction prayed for? OPP
3. Whether the suit cannot be maintained for want of service of notice under S.31(1) of the Punjab Agriculture Produce Market Act 1961? OPD.
4. Relief."

6. Returning finding on issue No.1, Trial Court relied upon ratio of law laid down by this Court in Parkash Woollen Industries, Panipat v. State of Haryana and others, reported as 1980 PLR 54 to hold that no market fee is leviable on the agricultural produce brought for manufacturing and decreed the suit.

7. The aforesaid findings stand affirmed by the Lower Appellate Court in appeal preferred by the defendant.

8. Learned counsel appearing for the defendant - appellant has assailed the findings recorded by the Courts below relying upon ratio of law laid down by Supreme Court in Krishi Utpadan Mandi Samiti, Kanpur and others v. Ganga Dal Mill and Co. and others reported as 1984 (4) SCC 516 : (AIR 1984 SC 1870), wherein Supreme Court held that agricultural produce as defined under S.2 - A of the UP Krishi Utpadan Mandi Adhiniyam, 1964 would mean not only those items of produce of agriculture as specified in schedule, but would also include the admixture of two or more of such items and any such item in its processed form. Dal being processed form of whole grain of legume would fall within the definition of 'agricultural produce'. Counsel thus submits that besan and dal being processed form of 'grain', it is deemed to be an agricultural produce.

9. I have heard counsel for the appellant and have carefully gone through the records of the case.

10. In the considered opinion of this Court, the issue involved in the present lis is different from what has been canvassed by the Courts below and by the counsel for the appellant. There is no dispute with respect to the agricultural produce produced by the plaintiff within the jurisdiction of Market Committee, Fazilka. Ex.P - 7 is subject matter of challenge in the present lis. A perusal of EX.P - 7 would show that the real issue to be determined is: -
"(i) whether plaintiff is required to pay market fee as contemplated under S.23 of 1961 Act read with R.29 of 1962 Rules on the agricultural produce bought outside the jurisdiction of Market Committee, Fazilka, but brought in the territorial jurisdiction of Market Committee, Fazilka."

11. The issue has already b