Important Point—The Factories Act, 1948 stipulate peculiar requirements or standards of construction contingent upon manufacturing activity to be undertaken therein and also in the interest of safety, health, hygiene of work force. These provisions are prescribing standards applicable to completed structure/building.

B.P.DHARMADHIKARI, J.

1. Petitioner, a factory duly functioning as per Factories Act 1948, has approached this Court questioning the demand of one percent cess from it by respondent no.4, on 29.3.2012. The cess is demanded as construction of building on Plot No. B2 by petitioner is found to be covered under section 2(d) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 ( hereinafter referred to as ‘Act No. 27/1996’). The cess on this construction work is demanded as per the Building and Other Construction Workers Welfare Cess Act, 1966 (hereinafter referred to as ‘Cess Act’).

2. Accordingly, we have heard Senior Advocate Anand Jaiswal with Adv. Mayank Sharma for petitioner, Mrs.Bharati Dangre, learned Government Pleader for respondent nos. 1 and 5 and Adv. Agnihotri for respondent nos. 2 to 4.

3. By placing reliance upon provisions of Section 2 (d) of the Act No.27/1996, senior Adv. Jaiswal submits that as the structure put up by petitioner was always subject to provisions of Factories Act 1948, the work in relation thereto cannot be viewed as building and construction work to attract Act No.27/1996. He submits that therefore demand of cess under Cess Act is unwarranted. He has taken us through the relevant provisions of Factories Act, to urge that right from selection of site, approval to plan of building in which manufacturing process is to be carried out, all facets of construction work are regulated by Factories Act and hence the impugned action is unsustainable.

4. Learned Government Pleader as also Adv. Agnihotri have opposed the contentions. They submit that provisions of Act No.27/1996, Cess Act and the provisions of Factories Act, 1948 operate in entirely different spheres and do not overlap. The cess has been demanded for the work which was completed before petitioner started any manufacturing process in the structure. Attention is invited to clarification issued by Chief Engineer, MIDC in this respect, to urge that as per said clarification issued vide Circular No.8/2013 on 11th March 2013, this distinguishing feature and identity of each sphere is maintained. The State Government has expressly observed that cess received by it till issuance of said clarification or circular, however, need not be refunded.

5. The learned Government Pleader has invited our attention to the judgment of Hon’ble Apex Court, reported at (2012)Vol.1 SCC 101: Dewan Chand Builders and Contractors vs. Union of India and others, to urge that cess under Cess Act is found to be a fee. Judgments delivered by Division Bench of Punjab & Haryana High Court reported at 2011(1) LLJ 307: Adani Agri Logistics Ltd. And another vs. State of Haryana and others; by Orrisa High Court, reported at 2011 (3) LLJ page 349: Sterlite Energy Ltd. vs. State of Orissa and others, and by Andhra Pradesh High Court in Writ Appeal No.1012/2013 and other connected matters on 6.8.2015, are pressed into service. Learned counsel for respondents state that after comparing provisions of Factories Act and Act No. 27/1996 a categorical finding that Acts function in different spheres, that there is no overlapping and as such, the application of Act No.27/1996 or Cess Act till commencement of manufacturing process, has been accepted by all these Division Benches.

6. Arguments could not be concluded yesterday. Today, when we resumed the arguments, learned Govt. Pleader has invited our attention to judgment of Hon’ble Apex Court, reported at (2016) 10 SCC 329: Lanco Anpara Power Limited vs. State of Uttar Pradesh and others, to urge that the view taken by Orissa High Court and by Karnataka High Court on same lines, is already upheld by Hon’ble Apex Court. She, therefore, submits that controversy is no more res integra. Our attention is also drawn to judgment by Allahabad High Court from which, matter was taken to Hon’ble Apex Court.

7. We find that in the light of judgment of Hon’ble Apex Court mentioned supra and variou