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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 6309 OF 2010
Bhusawal Division Railway
Contractors Association
Through its Secretary ....Petitioner.
Versus
Union of India and others ....Respondents.
Mr. A.G. Talhar, Advocate for petitioner.
Mr. M.N. Navandar, Advocate for respondent Nos. 1 to 7.
Mr. N.B. Patil, A.G.P. for respondent Nos. 8 and 9.
CORAM : B.R. GAVAI AND
A.A.SAYED, JJ.
DATED : 1st October, 2010.
PER COURT :
1. Rule.
2. Heard the learned counsel on the question of interim relief.
3. It is the contention of the petitioner that though in the agreement
entered into between them and the respondent Nos. 2, 3, 4, 5 and 6,
there was no clause for payment of welfare cess, the same is sought to be
recovered by the respondents.
4. Shri. Navandar, the learned counsel, on the contrary, submits that
2
in view of clause 3 (1) of the General Condition of Contract, the contract
shall be governed by the law for the time being in force in the republic of
India and as such, the respondents are authorised to recover the cess.
5. It is the settled position of law that no recovery of either taxes or
cess can be made unless it is authorised by law. Clause (c) of subsection
(1) of Section 22 of the Building and Other Construction Workers (RECS)
Act, 1996 and The Building and Other Construction Workers Welfare Cess
Act, 1966 would reveal that the Central Government may decide the
sources under which the amount could be recovered. Reliance is placed
by the learned counsel for the respondents on the communication of the
Government of India, Ministry of Railways, dated 9th of July 2008 in this
respect.
6. The perusal of the said communication would reveal that it has
been specifically stated, as under :
thereto by the ________________ (name of the State)
Govt. (Labour Deptt.) For enactment of this Act, the
tenderer shall be required to pay cess @ 1 % of cost
of construction work to be deducted from each bill.
Cost of material shall be outside the purview of cess,
when supplied under a separate schedule item."
It could thus be seen that in view of the directions issued on 9th
July 2008, the Railways would be authorised to include the clause in the
construction to be recovered as a cess.
inclined to direct that the respondents would be authorised to recover
the cess only when the agreement wherein the clause as specified vide
communication dated 9th of July 2008 is included. Needless to state that
respondents would not be entitled to recover the cess.
[ A. A. SAYED ] [ B. R. GAVAI ]
Judge Judge
ssc/wp6309.10