Ujjal Bhuyan, J. –

Heard Dr. AK Saraf, learned Senior Counsel assisted by Mr. A Goyal, learned counsel for the petitioner and Mr. S Sarma, learned counsel appearing for the Labour Department, Govt. of Assam. Also heard Mr. R Borpujari, learned counsel appearing for Brahmaputra Cracker and Polymer Ltd.

2. Case was heard on 09.03.2015 and 19.03.2015 was fixed for delivery of judgment. For paucity of time, judgment could not be dictated on 19.03.2015. Accordingly today is fixed for delivery of judgment.

3. Core issue involved in this writ petition is the interpretation of the expression "Building or Other Construction Work" as appearing in section 2(1)(d) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 in the context of the claim of the petitioner that the work executed by him in the form of earth filling and site grading do not fall within the ambit of the expression "Building or Other Construction Work".

4. The above issue has arisen in the following contextual facts.

5. Petitioner is a Class-1(A) Contractor under the Assam PWD (NH). He is engaged in contract and construction works under various Govt. departments and public sector undertakings. He was awarded work of earth filling and site grading work by Brahmaputra Cracker and Polymer Ltd. (BCPL), a Govt. of India Enterprise at BCPL and CISF Township (Part-B) vide letter of acceptance dated 11.02.2011. Petitioner started execution of the work and submitted bills to the BCPL. Against his running bill, respondent No. 5 made deduction of Rs. 53,795/- on 01.06.2011 on account of labour cess at the rate of 1% of the bill amount. On an inquiry by the petitioner, he was informed by the BCPL authority that such deduction was made under the provisions of the Building and Other Construction Workers Welfare Cess Act, 1996.

6. Contending that the activities of the petitioner do not come within the ambit of "Building or Other Construction Work", petitioner has challenged the legality and validity of the action of the respondents in making deduction from his contractual bills on account of labour cess.

7. This Court by order dated 21.10.2011 had issued notice and passed an interim order directing respondent Nos. 5 & 6 not to make any deduction at source on account of labour cess.

8. Respondent No. 4 i.e., Labour Commissioner, Assam has filed an affidavit stating that the contract work carried out by the petitioner attracts the provisions of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and, therefore, deduction of cess at source from the bills of the petitioner by the respondent No. 5 is legal and within jurisdiction. Earth filling and site grading work carried out by the petitioner are connected with specific construction works and as such attracts provisions of the aforesaid Act.

9. Dr. Saraf, learned Senior Counsel for the petitioner has referred to the various provisions of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 as well as the provisions of the Building and Other Construction Workers Welfare Cess Act, 1996 to contend that levy of cess on the work executed by the petitioner, namely, earth filling and site grading is totally unjustified and such deduction has been made on an erroneous interpretation and misconception of law. The present activity of the petitioner cannot be said to be a "Building or Other Construction Work". He, therefore, submits that impugned levy may be set aside and respondents be prohibited from levying of such cess on the bills submitted by the petitioner while executing the contract work relating to earth filling and site grading at BCPL and CISF Township (Part-B).

10. While Mr. Sarma, learned counsel for the Labour Department supports the levy of cess and the consequential deduction made, Mr. Borpujari, learned counsel for the BCPL submits that BCPL authority has only carried out the i

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