Hon'ble Amitava Lala, J. - (1.) PETITIONER herein is a registered company. By means of this petition, it has mainly prayed for direction upon the respondents to release the residue payment of the petitioner out of contractual work without deducting 1% cess.
(2.) BRIEFLY stated facts according to the petitioner are that on 20th October, 2008 the petitioner entered into an agreement with the respondent-Moradabad Development Authority, Moradabad for construction of flats under Manyavar Kanshiram Awas Yojna within six months i.e. by 05th April, 2009. The petitioner's own case is that it had completed the aforesaid construction work by 20th October, 2009 and the same was verified by the respondent No. 2 i.e. Executive Engineer, Moradabad Development Authority, Moradabad. On 27th January, 2010 a circular was issued by the concerned Labour Commissioner for deduction of 1% cess from the payments of all the projects of building and other construction works under the Building and Other Construction Workers' Welfare Cess Act, 1996 (hereinafter in short called as the "Cess Act") and the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (hereinafter in short called as the "Act, 1996"), both Central Acts, as well as the rules framed by the Government of Uttar Pradesh in exercise of powers conferred upon it by Section 62 read with Section 40 of the Act, 1996, being Uttar Pradesh Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2009 (hereinafter in short called as the "Rules, 2009"). On 05th May, 2010 another circular was issued by the Engineer In-Chief (Development), Public Works Department, Lucknow to the effect that the provisions of compulsory deduction of 1% cess shall be applicable to the constructions, which are to be started from 01 st April, 2010. On 20th October, 2010 the respondent- Moradabad Development Authority issued an office order implementing the provisions of the said Acts and the Rules, 2009 directing for compulsory deduction of amount of cess. In such circumstances, on 04th October, 2010 the petitioner made a detailed representation to the respondent authority stating that deduction of 1% cess cannot be made from the residue payment due towards the petitioner as the petitioner has completed the construction on much prior date. However, since no heed has been paid to such representation, the petitioner was compelled to invoke the jurisdiction of this Court by means of this writ petition. Upon filing counter-affidavit the respondents have contended before us that vide agreement dated 20th October, 2008 the petitioner was directed to complete the construction work within a period of six months between 06th October, 2008 and 05th April, 2009, on the estimated cost of Rs. 249.47 lacs. The petitioner had completed the work on 30th December, 2009. During the course of construction, running payments were made. Final verification on completion of construction of project was made by the Executive Engineer i.e. respondent No. 2 and now the final payments are due to be made by them to the petitioner. As per circular dated 27th January, 2010 issued by the Labour Commissioner, Uttar Pradesh, Kanpur and departmental order dated 20th October, 2010, compulsory deduction of cess is liable to be made by the respondents. Therefore, there is no case of the petitioner. Upon going through paragraph 6 of the writ petition we find that though the work was completed on 05th April, 2009 but it was verified by the Executive Engineer on 20th October, 2009. The respondents' case is that the work was completed on 30th December, 2009, but in dealing paragraph 6 of the writ petition it is stated as matter of record and not disputed. Against this background, the aforesaid three dates are very important about applicability of cess to the petitioner.
(3.) RULE 1 (iii) of the Rules, 2009 speaks that the rules shall come into force with effect from the date of their publication in the Gazette and we further find that the Gazette was published on 04th February, 2009 i.e. prior to any of the aforesaid dates towards completion of work by the petitioner. Rules, 2009 has adopted the Central Act of the year 1996 i.e. Act, 1996 about its applicability in the State of Uttar Pradesh. Therefore, it is declaratory in nature for operation in the State by the State authorities and when such rules say that the same will be applicable w.e.f. 04th February, 2009, by subsequent circular of the concerned Labour Commissioner and the Engineer In-Chief of the concerned department, the date of applicability of cess cannot be extended further. These circulars are informatory in nature. Claim of final bill or residue payment cannot arise prior to 04th February, 2009, therefore, there cannot have any dispute with regard to retrospective operation. Had it been the case of the petitioner that claim arose upon completion of work prior to 04th February, 2009, petitioner could have raised the point of retrospective operation but not against this factual background. Contract has its three facets i.e. execution of contract, performance of contract, and payments. Dispute is required to be considered either for three or for two or for one of such counts depending upon circumstances of each case. Here the dispute is with regard to payments. Therefore, under no circumstances, question of demand can arise before the date of 04th February, 2009 being the cut off date with regard to applicability of cess. Having so, we do not find any infirmity in connection with deduction of cess from the bill of the petitioner for the residue amount as claimed. Thus, in totality, we do not find any case of the petitioner to pass any affirmative order in its favour. Hence, the writ petition is dismissed, however, without imposing any cost. Hon'ble Ashok Srivastava, J.-I agree.;