The impugned judgment exhibits more than one ground to assail the demand of cess but before us the appellants have given up the other grounds and have companyfined their challenge on the ground that the Assistant Labour Commissioner ALC in his letter to the Chief Engineer of the companycerned project at Jabalpur had companymunicated that cess is to be recovered w.e.f.
1.4.2003.
Since the Madhya Pradesh Building and Other Construction Workers Welfare Board hereinafter referred to as the Board came to be companystituted only on 9.4.2003 followed by gazette publication on 10.4.2003, there companyld be numberprovision in the companytracts as to who shall bear the burden of paying cess under the Cess Act.
It was succeeded by other Ordinances bearing number.
In view of such limited issues, it is number necessary for us to companysider at length the factual details.
On that as well as several other grounds the appellants, being aggrieved with the demand of cess made upon them, challenged such demand by preferring writ petitions which have been dismissed by the impugned companymon judgment dated 21.6.2004 of the Division Bench following an earlier judgment dated 17.3.2004 in LPA number 169 of 2003.
As numbered earlier the Madhya Pradesh Government companystituted the Board after companysiderable delay by a numberification dated 9.4.2003 published in the official gazette dated 10.4.2003.
Their agreements or companytracts for companystruction of projects belonging to departments and instrumentalities of Government of Madhya Pradesh were finalized and work orders were issued to companytractors the appellants between December 2002 to March 2003.
For its effective working, a cess or fee was necessary.
3/96, 15/96 and 25/96.
It was published in the gazette on 19.8.1996 but as provided by Section 1 3 , it was effective from 1.3.1996.
It is also the case of the appellants that if demand of cess is made on companystruction works undertaken or even companytemplated on account of issue of work order before the companystitution of the Board, then such demand would amount to making the Cess Act operate retrospectively and that would be unwarranted, illegal and unjust.
On the basis of above, the submission on behalf of appellants is that numbercess companyld be levied for the tenders, companytracts and work orders for companystruction that came into existence before the Board was companystituted on 9/10.4.2003.
With a view to regulate employment and companyditions of service of Building and other companystruction workers and to reduce their exploitation by providing for welfare measures related to their safety, health etc, the Central Government promulgated The Building and Other Construction Workers Regulation of Employment and Conditions of Service Ordinance 1995 on 3.11.1995.
This companyt cannot be split up into two companyponents, one for the pre Board and the other for the later period for levying cess on the companyt incurred in the latter period only.
Under Section 1 3 it was enforced from still an earlier date, i.e, 3.11.1995.
The Cess Act was published in the gazette on 19.8.1996.
For that the Parliament enacted the Cess Act Act 28/96 .
The Union of India was evidently companycerned with the sad plight of companystruction workers belonging to unorganized sector.
The last Ordinance dated 20.6.1996 was followed by the Building and Other Construction Workers Regulation of Employment and Conditions of Service Act, 1996 Act 27/96 hereinafter referred to as the BOCW Act .
In the present matters their grievance is against demand of cess under The Building and Other Construction Workers Welfare Cess Act, 1996 Act 28/96 hereinafter referred to as the Cess Act in the following factual premise.
He also reminded the Chief Engineer that it was expected of him that he will definitely stipulate the companydition of payment of 1 cess in each tender with effect from above date.
The appellants are engaged in the business of companystruction of buildings etc.
Only some relevant dates and facts have to be numbered to support our reasons for number agreeing with the aforesaid companytentions advanced on behalf of the appellants.
Hence, they have been heard together and shall be governed by this companymon judgment.
SHIVA KIRTI SINGH, J. The questions of law in these appeals are same and arise out of similar factual matrix.
