HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION No.21852 of 2016 ORDER:-

This writ petition is filed seeking the following relief:-

“to issue Writ order or direction more particularly in the nature of writ of mandamus declaring the action of the Respondent No.1 to 3 in issuing notice under Section 4(1) of the Building and Other Construction Workers Welfare Cess Act, 1996 (Cess Act) vide Proceedings No. A/BOC-3/2013 dated 13.02.2016 demanding 1% cess on the total cost of the construction of 1789 residential villas in the name and style of “CSK Green Villas Premium” at Survey Nos.349 to 351, 354 and 513 to 517 of Farooq Nagar Village and Mandal, Mahabubnagar District as arbitrary, illegal, violative of fundamental rights guaranteed to the petitioner under Article 14 and 19(1)(g) of the Constitution of India, violation of the constitutional protection under Article of the Constitution of India restraining double taxation and set aside the said notice dated 13.02.2016 in the interest of justice”.

2. Heard learned counsel for the petitioner and learned Government Pleader for Labour appearing on behalf of the respondents.

3. When the matter is taken up, learned counsel for the petitioner submits that the subject matter of the present writ petition is squarely covered by judgment of the Division Bench of this Court in Government of Andhra Pradesh v. Lakamsani Samba Siva Rao¹

1 2015 SCC Online Hyd 599 : 2016(2) ALT 84(D.B.)

4. The petitioner-company in essence challenged the demand of 1% cess on the total cost of construction of residential villas, on the ground of double taxation.

5. In the instant writ petition, it is the specific contention of the petitioner-company that it is a construction company involved in constructing buildings by employing labour, and the owners of the residential villas in question have got the buildings constructed through the petitioner. And it is the specific contention of the petitioner that the owners while obtaining the building permits have already paid 1% cess to the respondent No.4/Municipality and therefore demanding 1% cess through the impugned proceedings dated 13.02.2016 on the petitioner would amount to double taxation. The petitioner relied on the judgment of the Hon’ble Division Bench stated supra in support of his case. 6. It is relevant to refer to sub-para 17 under paragraph No.21 in the judgment of Lakamsani Samba Siva Rao’s case (1^st supra) which is directly on the point and touches the precise grievance of the petitioner. It reads as follows:

‘21….

…17. It is manifest from the overarching schemes of the BOCW Act, the Cess Act and the Rules made thereunder that their sole object is to regulate the employment and conditions of service of building and other construction workers, traditionally exploited sections in the society and to provide for their safety, health and other welfare measures. The BOCW Act and the Cess Act break new ground in that, the liability to pay cess falls not only on the owner of a building or establishment, but under Section 2(1)(i)(iii) of the BOCW Act in relation to a building or other construction work carried on by or through a contractor, or by the employment of building workers supplied by a contractor, the contractor;

The extension of the liability on to the contractor is with a view to ensure that, if for any reason it is not possible to collect cess from the owner of the building at a stage subsequent to the completion of the construction, it can be recovered from the contractor. The Cess Act and the Cess Rules ensure that the cess is collected at source from the bills of the contractors to whom payments are made by the owner. In short, the burden of cess is passed on from the owner to the contractor.’

(emphasis supplied)

7. A perusal of the building permit issued in respect of Mr.Boreddy Raja Reddy, vide building permit order dated 25.02.2016 shows that an amount of Rs.10,995/- was collected by the Office of the Shadnagar Municipality/respondent No.4 towards la