IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.15972 of 2010 Date of decision: 8.9.2010 M/s Jalandhar Amritsar Tollways Ltd. -----Petitioners. Vs. State of Punjab and others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Vivek Salathia, Advocate for the petitioner. --- ADARSH KUMAR GOEL, J. 1. This petition seeks quashing of notice dated 2.3.2010, Annexure P-3, issued by the Cess Collector under the provisions of the Building and Other Construction Works (Employment Terms and Service Conditions) Act, 1996 (for short, “the BOCW Act”), requiring the petitioner to comply with the provisions of the BOCW Act and Building and other Construction Works Welfare Cess Act, 1996 (for short, “the Cess Act”), requiring payment of 1% cess. 2. Case of the petitioner is that it executed work belonging to National Highways Authority of India (NHAI) in pursuance of agreement dated 30.11.2005. Since under the CWP No.15972 of 2010 agreement, there was no provision for labour cess of 1% in the work estimates prepared by the NHAI, liability to pay cess could not be fastened on the petitioner. Reliance has been placed on order of learned Single Judge of the High Court of Andhra Pradesh dated 22.10.2009 in Writ Petition No.11269 of 2009 and dated 9.3.2010 in Writ Petition No.5246 of 2010. 3. We are unable to accept the submission. It is undisputed that under Section 3 of the Cess Act, liability to pay cess is on the employer, as defined under Section 2(i) of the BOCW Act, which means owner and includes the contractor. 4. The matter was considered by Division Bench of this Court in order dated 13.5.2010 in CWP No.6230 of 2009 M/s New India Construction Company & another v. State of Haryana and others, wherein it was held:- “.......Under the Scheme of the Act, intention was not to confine the applicability of the Act to the owner or the contractor but to cover both. The cess could be collected from the owner or the contractor. If the Cess is not collected from the contractor, the same could be recovered from the owner. The owner could pass on burden to the contractor and component of cess could be part of cost of construction. The employer could collect the cess and pass on to the Government. There was nothing arbitrary in such mechanism. There was no scope for ambiguity. No fault could be found with the direction for deduction of cess at source. The liability to pay cess was intended to fall on the contractor employing the workers. For facility 2 CWP No.15972 of 2010 of collection, the owner was also covered by the levy who could pass on the liability to the contractor......” The above observations were reiterated in judgment dated 21.5.2010 in CWP No.6102 of 2008 Adani Agri Logistics Ltd. & another v. The State of Haryana and others. 5. The stand of the petitioner that it could not be asked to comply with provisions of the Cess Act, in absence of agreement envisaging payment of cess by the NHAI to the petitioner, cannot be accepted. 6. In view of above, we are unable to follow the view taken by learned Single Judge of Andhra Pradesh High Court, relied upon on behalf of the petitioner. 7. Accordingly, the petition is dismissed. (ADARSH KUMAR GOEL) JUDGE September 08, 2010 ( AJAY KUMAR MITTAL ) ashwani JUDGE 3