Jharkhand High Court
The Jharkhand Building And Other ... vs M/S Anvil Cables Private Limited A ... on 9 May, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:14131-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.497 of 2024
------
The Jharkhand Building and Other Construction Workers Welfare
Board [constituted under Section 18 of Building and Other
Construction Workers Act, 1996 (hereinafter called as BOCW Act) ],
having its office at Shram Bhawan, behind Ashoka Hotel, P.O. & P.S.
- Doranda, District - Ranchi, through its Secretary namely Rakesh
Prasad aged about 59 Years, S/o- Late Krishna Prasad R/o
Belbagan, Samlong, P.O. & P.S. Namkum, Ranchi.
.... Petitioner/Appellant
Versus
1. M/s Anvil Cables Private Limited a Private Limited company
incorporated and subsisting under the provision of the Companies
Act, 2013 having its Registered Office at 102 Krishna, 224, AJC
Bose Road, P.O. & P.S. AJC Bose Road, District Kolkata-700017,
through its constituted Attorney, Mr. Shailendra Kumar Singh,
aged about 50 years, son of Shri Ravindra Nath Singh, resident of
Dewanji Street, Hooghly, P.O. & P.S. Rishra, District Hooghly, Pin
Code - 711228, West Bengal.
.... Writ Petitioner/ Opp. Party/Respondent
2. State of Jharkhand through the Secretary Department of Labour,
Employment & Training, having its office at Shram Bhawan,
Doranda, P.O. & P.S Doranda, District- Ranchi, Jharkhand -
834002
3. Labour Commissioner, Department of Labour, Employment &
Training, having its office at Shram Bhawan, Doranda, P.Ο. & P.S
- Doranda, District- Ranchi, Jharkhand - 834002
4. Assistant Labour Commissioner-Cum-Cess Assessment Officer
(Building and Other Construction Workers Welfare Cess Act,
1996), having its office at Shram Bhawan, Doranda, P.O. & P.S-
Doranda, District- Ranchi, Jharkhand - 834002
5. Jharkhand Bijli Vitran Nigam Limited, through its Managing
1
2025:JHHC:14131-DB
Director, having its office at Engineering Building, HEC, Dhurwa,
P.O. and P.S. Dhurwa, District- Ranchi, Jharkhand - 834002
6. General Manager (Project and Financial Management) Jharkhand
Bijli Vitran Nigam Limited, having its office at Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District- Ranchi,
Jharkhand - 834002
..... Respondents/Opposite parties / Performa Respondent
with
L.P.A. No.495 of 2024
------
The Jharkhand Building and Other Construction Workers Welfare
Board [constituted under Section 18 of Building and Other
Construction Workers Act, 1996 (hereinafter called as BOCW Act) ],
having its office at Shram Bhawan, behind Ashoka Hotel, P.O. & P.S.
- Doranda, District - Ranchi, through its Secretary namely Rakesh
Prasad aged about 59 Years, S/o- Late Krishna Prasad R/o
Belbagan, Samlong, P.O. & P.S. Namkum, Ranchi.
.... .... Writ Petitioner/Appellant
Versus
1. M/S Megha Engineering & Infrastructure Ltd, through its
Associate General Manager Mr. Rakesh Ranjan, S/O Shri
Jagannath Surekha, R/O Ratanpriya Apartment, 6E, 6th Floor,
Singh More, Latma Road, Hatia, Ranchi, P.O- Hatia and P.S.
Jagannathour, Ranchi.
.... .... Respondent/Respondent
2. State of Jharkhand through the Secretary Department of Labour,
Employment & Training, having its office at Shram Bhawan,
Doranda, P.O. & P.S Doranda, District- Ranchi, Jharkhand -
834002
3. Labour Commissioner, Department of Labour, Employment &
Training, having its office at Shram Bhawan, Doranda, P.O. & P.S
- Doranda, District- Ranchi, Jharkhand - 834002
4. Assistant Labour Commissioner-Cum-Cess Assessment Officer
2
2025:JHHC:14131-DB
(Building and Other Construction Workers Welfare Cess Act,
1996), having its office at Shram Bhawan, Doranda, P.O. & P.S -
Doranda, District- Ranchi, Jharkhand 834002
5. Jharkhand Urja Sancharan Nigam Limited, through its Managing
Director, having its office at Nigam HQ Building, Kusai Colony,
Doranda, P.O. and P.S. Doranda, District Ranchi, Jharkhand - 834
002.
6. Senior Manager (Finance and Accounts), Jharkhand Urja
Sancharan Nigam Limited, through its Managing Director, having
its office at Nigam HQ Building, Kusai Colony, Doranda, P.O. and
P.S. - Doranda, District Jharkhand - 834 002.
... ... Respondents/Opp. Parties/Proforma Respondents
with
L.P.A. No.496 of 2024
------
The Jharkhand Building and Other Construction Workers Welfare
Board [constituted under Section 18 of Building and Other
Construction Workers Act, 1996 (hereinafter called as BOCW Act)],
having its office at Shram Bhawan, behind Ashoka Hotel, P.O. & P.S.
- Doranda, District - Ranchi, through its Secretary namely Rakesh
Prasad aged about 59 Years, S/o- Late Krishna Prasad R/o
Belbagan, Samlong, P.O. & P.S. Namkum, Ranchi.
.... .... Writ Petitioner/Appellant
Versus
1. M/s Anvil Cables Private Limited a Private Limited company
incorporated and subsisting under the provision of the Companies
Act, 2013 having its Registered Office at 102 Krishna, 224, AJC
Bose Road, P.O. & P.S. AJC Bose Road, District Kolkata-700017,
through its constituted Attorney, Mr. Shailendra Kumar Singh,
aged about 50 years, son of Shri Ravindra Nath Singh, resident of
Dewanji Street, Hooghly, P.O. & P.S. Rishra, District Hooghly, Pin
Code - 711228, West Bengal.
.... .... Respondent/Writ Petitioner/Opp. Party
3
2025:JHHC:14131-DB
2. State of Jharkhand through the Secretary Department of Labour,
Employment & Training, having its office at Shram Bhawan,
Doranda, P.O. & P.S Doranda, District- Ranchi, Jharkhand -
834002
3. Labour Commissioner, Department of Labour, Employment &
Training, having its office at Shram Bhawan, Doranda, P.Ο. & P.S
- Doranda, District- Ranchi, Jharkhand - 834002
4. Assistant Labour Commissioner-Cum-Cess Assessment Officer
(Building and Other Construction Workers Welfare Cess Act,
1996), having its office at Shram Bhawan, Doranda, P.O. & P.S-
Doranda, District- Ranchi, Jharkhand - 834002
5. Jharkhand Bijli Vitran Nigam Limited, through its Managing
Director, having its office at Engineering Building, HEC, Dhurwa,
P.O. and P.S. Dhurwa, District- Ranchi, Jharkhand - 834002
6. General Manager (IT) Jharkhand Bijli Vitran Nigam Limited,
having its office at Engineering Building, HEC, Dhurwa, P.O. and
P.S. Dhurwa, District- Ranchi, Jharkhand - 834002
..... Respondents/Opposite parties/Performa Respondent
with
L.P.A. No.506 of 2024
------
The Jharkhand Building and Other Construction Workers Welfare
Board [constituted under Section 18 of Building and Other
Construction Workers Act, 1996 (hereinafter called as BOCW Act) ],
having its office at Shram Bhawan, behind Ashoka Hotel, P.O. & P.S.
- Doranda, District - Ranchi, through its Secretary namely Rakesh
Prasad aged about 59 Years, S/o- Late Krishna Prasad R/o
Belbagan, Samlong, P.O. & P.S. Namkum, Ranchi.
... ... Writ Petitioner/Appellant
Versus
1. M/s Anvil Cables Private Limited a Private Limited. Company
incorporated and subsisting under the provision of the Companies
Act, 2013 having its Registered Office at 102 Krishna, 224, AJC
Bose Road, P.O. & P.S. AJC Bose Road, District Kolkata-700017,
4
2025:JHHC:14131-DB
through its constituted Attorney, Mr. Shailendra Kumar Singh,
aged about 50 years, son of Shri Ravindra Nath Singh, resident of
Dewanji Street, Hooghly, P.O. & P.S. Rishra, District Hooghly, Pin
Code - 711228, West Bengal.
.... Respondent/Writ Petitioner/ Opp. Party
2. State of Jharkhand through the Secretary Department of Labour,
Employment & Training, having its office at Shram Bhawan,
Doranda, P.O. & P.S Doranda, District- Ranchi, Jharkhand -
834002
3. Labour Commissioner, Department of Labour, Employment &
Training, having its office at Shram Bhawan, Doranda, P.Ο. & P.S
- Doranda, District- Ranchi, Jharkhand - 834002
4. Assistant Labour Commissioner-Cum-Cess Assessment Officer
(Building and Other Construction Workers Welfare Cess Act,
1996), having its office at Shram Bhawan, Doranda, P.O. & P.S-
Doranda, District- Ranchi, Jharkhand - 834002
5. Jharkhand Bijli Vitran Nigam Limited, through its Managing
Director, having its office at Engineering Building, HEC, Dhurwa,
P.O. and P.S. Dhurwa, District- Ranchi, Jharkhand - 834002
6. General Manager (Project and Financial Management) Jharkhand
Bijli Vitran Nigam Limited, having its office at Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District- Ranchi,
Jharkhand - 834002
.... ..... Respondents/Opposite parties/Performa Respondent
with
L.P.A. No.507 of 2024
------
The Jharkhand Building and Other Construction Workers Welfare
Board [constituted under Section 18 of Building and Other
Construction Workers Act, 1996 (hereinafter called as BOCW Act) ],
having its office at Shram Bhawan, behind Ashoka Hotel, P.O. & P.S.
- Doranda, District - Ranchi, through its Secretary namely Rakesh
Prasad aged about 59 Years, S/o- Late Krishna Prasad R/o
5
2025:JHHC:14131-DB
Belbagan, Samlong, P.O. & P.S. Namkum, Ranchi.
.... .... Writ Petitioner/Appellant
Versus
1. M/s Genus Power Infrastructure limited, through its senior
Engineer, Mr. Praveen Gupta, S/o Mr. Surendra Prasad Gupta,
R/O Hatia, Singhmore, P.O. Hatia and P.S. Hatia, Dist- Ranchi
834003
... Writ Petitioner/ Opp. Party/ Respondent
2. State of Jharkhand through the Secretary Department of Labour,
Employment & Training, having its office at Shram Bhawan,
Doranda, P.O. & P.S. - Doranda, District- Ranchi, Jharkhand-
834002
3. Labour Commissioner, Department of Labour, Employment &
Training, having its office at Shram Bhawan, Doranda, P.O. & P.S.
- Doranda, District- Ranchi, Jharkhand- 834002
4. Assistant Labour Commissioner-cum-Cess Assessment Office
(Building and Other Construction Workers Welfar Cess Act, 1996),
having its office at Shram Bhawan, Doranda, P.O. & P.S.-
Doranda, District- Ranchi, Jharkhand- 834002
5. Jharkhand Bijli Vitran Nigam Limited, through its Managing
Director, having its office at Engineering Building, HEC, Dhurwa,
P.O. and P.S. - Dhurwa, District- Ranchi, Jharkhand - 834002
6. General Manager (IT) Jharkhand Bijli Vitran Nigam Limited,
having its office at Engineering Building, HEC, Dhurwa, P.O. and
P.S. - Dhurwa, District- Ranchi, Jharkhand - 834002
.... Respondents/Opp. Parties/ Proforma Respondents
with
L.P.A. No.508 of 2024
------
The Jharkhand Building and Other Construction Workers Welfare
Board [constituted under Section 18 of Building and Other
Construction Workers Act, 1996 (hereinafter called as BOCW Act) ],
having its office at Shram Bhawan, behind Ashoka Hotel, P.O. & P.S.
6
2025:JHHC:14131-DB
- Doranda, District - Ranchi, through its Secretary namely Rakesh
Prasad aged about 59 Years, S/o- Late Krishna Prasad R/o
Belbagan, Samlong, P.O. & P.S. Namkum, Ranchi. ....
... Writ Petitioner/Appellant
Versus
1. M/s JSP Project Private Limited, a Private Limited Company
incorporated and subsisting under the provisions of the
Companies Act, 2013, having its Registered Office at Flat No. 5, II
Floor, IIIB-2, P.O. & P.S. Nehru Nagar, District- Gaziabad- 201001,
through its authorized signatory Mr. Sumit Kumar Sinha, aged
about 33 years son of Shri Niranjan Kumar Sinha, resident of 69,
Near RPD School, Kumhartoli, Lohia Nagar, P.O. & P.S. Lonia
Nagar, District- Patna, Bihar- 800020
.... Respondent/Writ Petitioner/ Opp. Party
2. State of Jharkhand through the Secretary Department of Labour,
Employment & Training, having its office at Shram Bhawan,
Doranda, P.O. & P.S Doranda, District- Ranchi, Jharkhand -
834002
3. Labour Commissioner, Department of Labour, Employment &
Training, having its office at Shram Bhawan, Doranda, P.Ο. & P.S
- Doranda, District- Ranchi, Jharkhand - 834002
4. Assistant Labour Commissioner-Cum-Cess Assessment Officer
(Building and Other Construction Workers Welfare Cess Act,
1996), having its office at Shram Bhawan, Doranda, P.O. & P.S-
Doranda, District- Ranchi, Jharkhand - 834002
5. Jharkhand Bijli Vitran Nigam Limited, through its Managing
Director, having its office at Engineering Building, HEC, Dhurwa,
P.O. and P.S. Dhurwa, District- Ranchi, Jharkhand - 834002
6. General Manager (Project and Financial Management) Jharkhand
Bijli Vitran Nigam Limited, having its office at Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District- Ranchi,
Jharkhand - 834002 .... Respondents/Opp. Parties/Petitioner
7
2025:JHHC:14131-DB
with
L.P.A. No.509 of 2024
------
The Jharkhand Building and Other Construction Workers Welfare
Board [constituted under Section 18 of Building and Other
Construction Workers Act, 1996 (hereinafter called as BOCW Act) ],
having its office at Shram Bhawan, behind Ashoka Hotel, P.O. & P.S.
- Doranda, District - Ranchi, through its Secretary namely Rakesh
Prasad aged about 59 Years, S/o- Late Krishna Prasad R/o
Belbagan, Samlong, P.O. & P.S. Namkum, Ranchi. ....
... Writ Petitioner/Appellant
Versus
1. M/s Anvil Cables Private Limited a Private Limited. Company
incorporated and subsisting under the provision of the Companies
Act, 2013 having its Registered Office at 102 Krishna, 224, AJC
Bose Road, P.O. & P.S. AJC Bose Road, District Kolkata-700017,
through its constituted Attorney, Mr. Shailendra Kumar Singh,
aged about 50 years, son of Shri Ravindra Nath Singh, resident of
Dewanji Street, Hooghly, P.O. & P.S. Rishra, District Hooghly, Pin
Code - 711228, West Bengal.
.... Respondent/Writ Petitioner/ Opp. Party
2. State of Jharkhand through the Secretary Department of Labour,
Employment & Training, having its office at Shram Bhawan,
Doranda, P.O. & P.S Doranda, District- Ranchi, Jharkhand -
834002
3. Labour Commissioner, Department of Labour, Employment &
Training, having its office at Shram Bhawan, Doranda, P.Ο. & P.S
- Doranda, District- Ranchi, Jharkhand - 834002
4. Assistant Labour Commissioner-Cum-Cess Assessment Officer
(Building and Other Construction Workers Welfare Cess Act,
1996), having its office at Shram Bhawan, Doranda, P.O. & P.S-
Doranda, District- Ranchi, Jharkhand - 834002
5. Jharkhand Bijli Vitran Nigam Limited, through its Managing
8
2025:JHHC:14131-DB
Director, having its office at Engineering Building, HEC, Dhurwa,
P.O. and P.S. Dhurwa, District- Ranchi, Jharkhand - 834002
6. General Manager (Project and Financial Management) Jharkhand
Bijli Vitran Nigam Limited, having its office at Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District- Ranchi,
Jharkhand - 834002
..... Respondents/opposite parties/ Performa Respondent
with
L.P.A. No.566 of 2024
------
The Jharkhand Building and Other Construction Workers Welfare
Board [constituted under Section 18 of Building and Other
Construction Workers Act, 1996 (hereinafter called as BOCW Act) ],
having its office at Shram Bhawan, behind Ashoka Hotel, P.O. & P.S.
- Doranda, District - Ranchi, through its Secretary namely Rakesh
Prasad aged about 59 Years, S/o- Late Krishna Prasad R/o
Belbagan, Samlong, P.O. & P.S. Namkum, Ranchi.
.... .... Writ Petitioner/Appellant
Versus
1. M/s Anvil Cables Private Limited a Private Limited. Company
incorporated and subsisting under the provision of the Companies
Act, 2013 having its Registered Office at 102 Krishna, 224, AJC
Bose Road, P.O. & P.S. AJC Bose Road, District Kolkata-700017,
through its constituted Attorney, Mr. Shailendra Kumar Singh,
aged about 50 years, son of Shri Ravindra Nath Singh, resident of
Dewanji Street, Hooghly, P.O. & P.S. Rishra, District Hooghly, Pin
Code - 711228, West Bengal.
.... Respondent/Writ Petitioner/ Opp. Party
2. State of Jharkhand through the Secretary Department of Labour,
Employment & Training, having its office at Shram Bhawan,
Doranda, P.O. & P.S Doranda, District- Ranchi, Jharkhand -
834002
3. Labour Commissioner, Department of Labour, Employment &
Training, having its office at Shram Bhawan, Doranda, P.Ο. & P.S
9
2025:JHHC:14131-DB
- Doranda, District- Ranchi, Jharkhand - 834002
4. Assistant Labour Commissioner-Cum-Cess Assessment Officer
(Building and Other Construction Workers Welfare Cess Act,
1996), having its office at Shram Bhawan, Doranda, P.O. & P.S-
Doranda, District- Ranchi, Jharkhand - 834002
5. Jharkhand Bijli Vitran Nigam Limited, through its Managing
Director, having its office at Engineering Building, HEC, Dhurwa,
P.O. and P.S. Dhurwa, District- Ranchi, Jharkhand - 834002
6. General Manager (Project and Financial Management) Jharkhand
Bijli Vitran Nigam Limited, having its office at Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District- Ranchi,
Jharkhand - 834002
.... ..... Opposite parties / Performa Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
------
For the Appellants: Mr. Krishna Murari, Advocate
: Mr. Jayesh Anand, Advocate
For the Resp. : Mr. M.S. Mittal, Sr. Advocate
Mr. Salona Mittal, Advocate
For the State : Ms. Apoorva Singh, AC to SC (Mines)-II
For JUVNL : Mr. Sachin Kumar, Sr. S.C.
Mr. Ravi Prakash Mishra, Advocate
: Mr. Ashok Kr. Yadav, Sr. S.C
------
C.A.V. on 08.04.2025 Pronounced on 09.05.2025
Per Sujit Narayan Prasad, J.
Prayer
Since all the appeals are having the common issues, as
such, these appeals are directed to be heard together and are
being disposed of with this common order.
2. The instant appeals preferred under Clause-10 of Letters
2025:JHHC:14131-DB
Patent are directed against the order dated 09.08.2024 passed
by the learned Single Judge of this Court in Civil Review Nos.22
of 2024 and analogous cases, whereby and whereunder, the
prayer to recall/review the orders passed by the learned Single
Judge on different dates, i.e., in W.P.(C) Nos.5775 of 2023,
5777 of 2023, 5776 of 2023, 5778 of 2023, 6695 of 2023, 6262
of 2022 and 5458 of 2023 have been dismissed.
3. Since the issue involved in all these Letters Patent Appeals
are identical in nature, as such, for the sake of convenience
and with the consent of learned counsel for the parties, the fact
involved in one of the cases, i.e., LPA No.497 of 2024 is being
taken up.
Factual Matrix
4. The brief facts of the case, as per the pleading made in the
petition, required to be enumerated, which read as under:
(i) It is the case of the writ petitioner that writ petitioner is a
Company engaged in business of workers contract of the
Government and was awarded contract for the tender for Rural
Electrification Works of West Singhbhum District under Din
Dayal Upadhyay Gram Jyoti Yojna project in XIIth plan
pursuant to NIT No.277/PR/JBVNL/2018-19.
(ii) The writ petitioner was selected as the successful bidder,
two separate orders were issued in his favour which are as
2025:JHHC:14131-DB
follows:-
I. Letter of Award for supply of materials being LOA
No.156/RE dated 17.12.2019.
II. Letter of Award for erection and civil works being
LOA No.157/RE dated 17.12.2019.
(iii) The main grievance of the petitioner-Company is that the
Letter of Award for supply of materials is defined as the "First
Contract/Supply Contract" and the Letter of Award for erection
works is defined as the "Second Contract"/Erection Contract.
In fact, clause-2 of both the LOAs read as (a) "total for supply
contract-Rs.46,71, 54,701.88", and (b) "total for service
contract-Rs.9,96,37,316.01". It is the further case of the writ
petitioner that the contracts for supply of materials and
erection were separate and divisible contracts. Further, it has
been stated by the writ petitioner that the total amount of
labour cess deducted was Rs.32,59,088/-. Apart from this,
there were other purchase and work order on which cess has
been deducted by respondent-JBVNL and aggrieved by said
deduction, the Writ Petition has been filed.
5. It is evident from the factual aspect that the writ
petitioner, has preferred writ petitions, i.e., W.P.(C) Nos.5775 of
2023, 5777 of 2023, 5776 of 2023, 5778 of 2023, 6695 of 2023,
6262 of 2022 and 5458 of 2023, which have been allowed
passing the order for refund of the amount which has been
2025:JHHC:14131-DB
deducted by way of labour cess by the Jharkhand Urja Vitran
Nigam Limited, in short "JUVNL".
6. The writ petitioner has preferred writ petitions impleading
therein the respondents, i.e.,
(i) State of Jharkhand through the Secretary,
Department of Labour, Employment & Training, having
its office at Sharam Bhawan, Doranda, Ranchi.
(ii) Labour Commissioner, Department of Labour,
Employment & Training, having its office at Sharam
Bhawan, Doranda, Ranchi.
(iii) Assistant Labour Commissioner-cum-Cess
Assessment Officer, having its office at Sharam
Bhawan, Doranda, Ranchi.
(iv) Jharkhand Bijli Vitran Nigam Limited, through its
Managing Director, having its office at Engineering
Building, HEC, Dhurwa, Ranchi.
(v) General Manager (Project & Financial Management),
Jharkhand Bijli Vitran Nigam Limited, having its office
at Engineering Building, HEC, Dhurwa, Ranchi seeking
therein the following prayers:-
"(i) For the issuance of an appropriate writ /
order / direction or a writ in the nature of a
declaration, declaring that the Respondents can
deduct Labour Cess under the Cess Act (defined
2025:JHHC:14131-DB
hereinafter) only on the erection charges which
involves engaging the services of labours and not
against other payments such as payment for
supply of materials which does not involve any
labour component, as decided by this Hon'ble
Court in Flowmore Ltd. v. State of Jharkhand,
2022 SCC OnLine Jhar 633 and upheld by the
Division Bench in L.P.A. No. 511 of 2022 (vide
order dated 27.7.2023) relying on the judgment
of the Hon'ble Supreme Court in U.P. Power
Transmission Corporation Limited v. CG Power &
Industrial Solutions Limited reported in (2021) 6
SCC 15.
(ii) For the issuance of an appropriate
writ/order/ direction to the Respondents, or a
writ in the nature of mandamus, directing the
Respondents to refund, forthwith and at the
earliest, the sum of Rs. 32,59,088 and such
further deductions of the like nature, illegally and
arbitrarily deducted by Respondent No. 4 as
Labour Cess on supply of materials under the
BOCW Act, the Cess Act and the Cess Rules in
respect of the West Singhbhum Package-2 Project
under the Deendayal Upadhyaya Gram Jyoti
2025:JHHC:14131-DB
Yojna ('DDUJGY") Scheme;
(iii) For the issuance of an appropriate
writ/order/ direction to the Respondents, or a
writ in the nature of mandamus, directing the
Respondents to pay interest at the rate of 18%
p.a., from the date of deduction till the date of
actual payment, being the compensation for the
amount retained by the Respondents illegally
and without jurisdiction; and
(iv) For the issuance of an appropriate writ/
order/ direction to the Respondents, or a writ in
the nature of mandamus, directing the
Respondents to henceforth refrain from levying
Labour Cess on supply of materials from future
bills."
7. The matter was heard by the learned Single Judge of this
Court. The learned Single Judge, on appreciation of the
statutory provision, as contained under the provision of
Building & Other Construction Workers Welfare Cess Act, 1996
(hereinafter referred to as the "Cess Act, 1996") and the
judgment rendered by the Hon'ble Apex Court in the case of
Uttar Pradesh Power Transmission Corporation Limited &
Anr. vs. CG Power and Industrial Solutions Limited and
Anr., 2021 SCC OnLine 383, has allowed the writ petition
2025:JHHC:14131-DB
with the following direction, which is being referred as under:-
"The Writ Petition is allowed with a direction to the
respondent nos.2 and 3 to refund the deducted
amount under the supply portion within eight weeks
from the date of order with simple interest @ 6 % on
the said amount. There will be no further deduction
of cess on the supply part of the contract."
8. The appellant had preferred review petition against the
order passed by the learned Single Judge on the ground that
the Board is necessary party since the amount which has been
deducted by the JUVNL under the labour cess head, had been
transmitted in the account of the Board which has been spent
by taking beneficial measure for the labourers. The amount has
been spent and as such, the amount cannot be refunded in
favour of the writ petitioner as per the direction passed by the
learned Single Judge and in that view of the matter, the
impleadment of the Board by way of necessary party in the
proceeding before the learned Single Judge, was highly
warranted but without impleading the Board as a party, the
writ petition has been disposed of with a direction upon the
Board to refund the said amount.
9. The learned Single Judge has rejected the said plea on
consideration of the fact that the Labour Commissioner,
Department of Labour, Govt. of Jharkhand has been impleaded
2025:JHHC:14131-DB
as party to the proceeding, i.e., in the writ petition and the
Board is being headed by the Chairman who happens to be the
ex-officio Chairman in the capacity of holding the post of
Commissioner, Department of Labour.
10. Learned Single Judge, while exercising the power of review
and basing upon the judgment passed by the Hon'ble Apex
Court in the case of Uttar Pradesh Power Transmission
Corporation Limited & Anr. vs. CG Power and Industrial
Solutions Limited and Anr. (supra) wherein it has been held
that the labour cess on the material supply is not applicable
but even then the same has been deducted by the JUVNL, party
to the contract along with the writ petitioner and as such, the
writ petition has been allowed and consequent direction has
been passed on consideration of the fact that the amount which
has been deducted by the JUVNL on the basis of audit report
had transmitted the amount of the Board and hence, the Board
has been directed to refund the said amount for its onward
disbursement in favour of the writ petitioner.
11. Learned Single Judge has observed that the very authority
to deduct the amount under the labour cess head has been
held to be not proper but even then based upon the audit
report, the amount has been deducted and transmitted to the
account of the Board and as such, the direction so passed by
the learned Single Judge cannot be said to suffer from an error.
2025:JHHC:14131-DB
12. Moreover, the issue with respect to non-impleadment, it
has been considered that the Labour Commissioner was the
party and decision to prefer Letters Patent Appeal against the
order passed by the learned Single Judge, has been taken by
Labour Commissioner-cum-Chairman of the Board.
13. The aforesaid document dated 23.09.2022 has been
appreciated by the learned Single Judge while exercising the
power of review and as such, applying the scope of review, the
learned Single Judge has rejected the review petitions, against
which, the present appeals have been preferred.
Arguments of the learned counsel for the appellant:
14. Mr. Krishna Murari, learned counsel for the appellant in
all the appeals, has taken the following grounds in assailing the
impugned order that:-
(i) The Board is a necessary party and as such, without
impleading the Board as a party to the writ petition, the
direction so passed upon the Board, cannot be said to be
proper and as such, review petitions have been filed for
recall of the order passed by the learned Single Judge so
that the review petitioner may have the opportunity to
address the Court.
(ii) Learned Single Judge while exercising the power of
review has not appreciated the aforesaid aspect of the
matter and direction has been given to refund the amount
2025:JHHC:14131-DB
so that it be transmitted in the account of the petitioner on
the basis of the fact that the amount cannot be deducted
under the labour cess head on the issue of supply of
material.
(iii) The Judgement rendered by the Hon'ble Apex Court
in the case of Uttar Pradesh Power Transmission
Corporation Limited & Anr. vs. CG Power and
Industrial Solutions Limited and Anr. (supra) will not be
applicable in the facts and circumstances of the case,
since, the law which has been laid down in the aforesaid
case is basically on different facts.
15. Learned counsel for the appellant, based upon the
aforesaid grounds, has submitted that the order passed by the
learned Single Judge, therefore, requires interference.
Arguments of the learned senior counsel for the
Respondent
16. Mr. M.S. Mittal, learned senior counsel appearing for the
Respondent has taken the following grounds in defending the
order passed by the learned Single Judge.
(i) It has been submitted that it is incorrect on the part
of the appellant to take the ground that there was no party
to the proceeding, rather, the Chairman of the Board by
virtue of holding the post of Labour Commissioner and the
Labour Commissioner is party to the writ petition as
2025:JHHC:14131-DB
respondent no.2 in all the aforesaid writ petitions. The
counter affidavit has duly been filed on behalf of
respondent nos.2 to 4 in one of the writ petitions.
Argument therefore has been advanced that Since
the Labour Commissioner is the ex-officio Chairman of the
Board and as he was impleaded as party, who has also
contested the case and therefore, if the learned Single
Judge has passed the order and directed to refund the
amount then it is not available for the Board to take the
ground that the Board has not been impleaded as party.
Although, the Board is not party but the Officer concerned,
who was in the helm of affairs of the Board, is party to the
proceeding, meaning thereby, he was having the full
knowledge with respect to the case. But he has not chosen
to appear in the capacity of the Chairman of the Board. As
such, the ground which is being taken in the review
petitions of non-impleadment of the said party is nothing
but to frustrate the order passed by the learned Single
Judge.
(ii) Further, learned counsel by referring to the case
before this Court, being W.P.(C) No.3835 of 2020 has
submitted that the facts of the present cases are similar to
the facts of W.P.(C) No.3835 of 2020 (M/s Flowmore
Limited, Ranchi Vrs. The State of Jharkhand & Ors.),
2025:JHHC:14131-DB
wherein, also the Board was not party. Thereafter,
communication dated 23.09.2022 was issued by the
Secretary of the Jharkhand Building and Other
Construction Workers Welfare Board wherein the decision
was taken to prefer an appeal. Thereafter, L.P.A. No.511 of
2022 (The State of Jharkhand & Ors. Vrs. M/s
Flowmore Limited & Ors.) was preferred, in which, the
order passed by the writ court was affirmed by dismissing
the Letters Patent Appeal.
(iii) It has been contended that the communication dated
23.09.2022 has been annexed at page-124 of the paper
book of L.P.A. No.566 of 2024.
It has been submitted that the aforesaid order
clarifies that the Commissioner, being the ex-officio
Chairman of the Board, was having full knowledge of
pending proceeding and when he has lost before the
learned writ Court both under the original jurisdiction and
jurisdiction of the review, thereafter, has preferred the
present appeals only to mislead the Court by way of taking
the ground that they are necessary party.
(iv) The issue on merit has also been taken into
consideration by the learned writ court at the time of
exercising the original jurisdiction wherein by taking note
of implication of the labour cess as per the definition made
2025:JHHC:14131-DB
under Section 3 of the Act, having been interpreted and
dealt with by the Hon'ble Apex Court in the judgment
rendered in the case of Uttar Pradesh Power
Transmission Corporation Limited & Anr. vs. CG Power
and Industrial Solutions Limited and Anr. (supra), the
direction has been passed for refund of the said amount by
taking into consideration the fact that the Hon'ble Apex
Court in the aforesaid case has held that the clear statutory
scheme of BOCW Act excludes a supply contract from its
ambit.
(v) The issue of necessary party which is being agitated
on behalf of the appellant cannot be said to be available to
be agitated since the Labour Commissioner who is also the
Chairman of the Board was having full knowledge of the
case was also contested by filing the affidavit.
The argument, therefore, has been advanced that
since the Labour Commissioner was party to the proceeding
and as such, the instant petition is only to be looked into
regarding the propriety of the order passed by the learned
Single Judge in review petitions being Civil Review Nos.22,
23, 27, 28, 30, 46 and 45 of 2024 and the High Court is to
exercise the power under Article 226 in the touchstone of
scope of review, the issue involved in the review petitions, is
to be considered.
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(vi) The review court has considered each and every
aspect of the matter and thereafter has come to the
conclusion of having no case to review the order passed by
the original court, hence, the present appeal which is
against the order passed by the review court is not worth to
be considered, as such, the same is fit to be rejected.
17. The learned Single Judge since has passed an order,
hence, there cannot be said to be any impropriety in the order
passed by the learned Single Judge or the order passed in
exercise of jurisdiction of review.
18. The learned senior counsel, based upon the aforesaid
grounds, has submitted that the impugned order therefore
requires no interference.
Analysis
19. We have heard the learned counsel for the parties and
gone across the finding recorded by the learned Single Judge in
the impugned order.
20. Before proceeding to examine the issue, it needs to refer
herein that an opportunity of detail hearing has been given to
the learned counsel for the appellant, namely, Mr. Krishna
Murari, which would be evident from various orders passed by
this Court dated 10.02.2025, 05.03.2025 and 11.03.2025.
21. It is evident from one of the orders, i.e., order dated
05.03.2025 that certain issues have been framed.
2025:JHHC:14131-DB
22. This Court has considered to interact with the Labour
Commissioner on the issue since in spite of the query being
made to the learned counsel for the appellant regarding the
applicability of the judgment rendered in the case of Uttar
Pradesh Power Transmission Corporation Limited & Anr.
vs. CG Power and Industrial Solutions Limited and Anr.
(supra) and the question of applicability of unjust enrichment,
this Court has thought it proper to interact with the Labour
Commissioner to assist the Court on the issue on merit,
therefore, has passed an order to call upon the Labour
Commissioner. The Labour Commissioner has appeared.
23. The question, which requires consideration in the present
case is that:
(i) The Labour Commissioner who is the Chairman of the
Board if already impleaded as party, who has filed counter
affidavit before the learned writ Court, then how, is it available
for the Labour Commissioner to take the ground that the Board
has not been impleaded as party. As such, the order which has
been passed by the learned Single Judge, needs to be recalled.
(ii) Whether the Labour Commissioner who is also the
Chairman of the Board, can be allowed to agitate the ground of
not impleading the Board as a party when he is fully conscious
with the pending proceeding before this Court and also
contested the case.
2025:JHHC:14131-DB
(iii) Whether the Labour Commissioner, highest in hierarchy
in the Labour Department, can be allowed to take plea of non-
impleadment, even though, he was having full knowledge about
pending proceeding, rather, he has waited for disposal of the
writ petition without making any reference to the Court that he
also holds the post of Chairman of the Board.
(iv) Whether in a case where the amount which has been
deducted, held to be contrary to the statute, can be allowed to
be retained merely on the ground of principle of unjust
enrichment and the money has been spent by the Board.
24. All the issues are interlinked and as such, the same are
being dealt with hereinafter together.
25. The first issue with respect to the position of Board to be
considered as necessary party, this Court is of the view that the
consideration is to be given with respect to the interpretation of
necessary party, proper party and the affected party.
26. The necessary party is such party in whose absence, there
cannot be any adjudication of the issue on merit, while, the
proper party is such party in whose absence the proceeding can
be decided but for substantive justice, such party may be
impleaded as party to the proceeding. The interpretation of
necessary or proper party has been dealt with by the Hon'ble
Apex Court in the case of Poonam v. State of U.P., [(2016) 2
SCC 779], wherein the Hon'ble has dealt with the issue of
2025:JHHC:14131-DB
'necessary party'. The relevant paragraph of the said judgment
is quoted as under:
"14. First, it is necessary to understand about the
concept of necessary and proper party. A four-Judge
Bench in Udit Narain Singh Malpaharia v. Board of
Revenue [Udit Narain Singh Malpaharia v. Board of
Revenue, AIR 1963 SC 786] has observed thus: (AIR
p. 788, para 7)
"7. ... it would be convenient at the outset to
ascertain who are necessary or proper
parties in a proceeding. The law on the
subject is well settled: it is enough if we
state the principle. A necessary party is
one without whom no order can be made
effectively; a proper party is one in
whose absence an effective order can be
made but whose presence is necessary
for a complete and final decision on the
question involved in the proceeding."
27. It is evident from the ratio laid down by the Hon'ble Apex
Court regarding the interpretation of the word "necessary party
or proper party".
28. This Court has dealt with this issue because the
argument, all along of the Board, is that they are necessary
party but they have not provided an opportunity. Therefore, this
Court deems it fit and proper to consider the issue even though
the argument has been advanced on behalf of the writ
petitioner that the Labour Commissioner who happens to be
the Chairman of the Board being the party to the proceeding
and on behalf of whom, the affidavit has been sworn before the
2025:JHHC:14131-DB
writ Court in one of the writ petitions.
29. Whether the question of necessary or proper party will be
a ground for consideration as has been agitated on behalf of the
appellant, is required to be considered in backdrop of the
argument advanced on behalf of the writ petitioner.
30. The admitted fact which we have gathered from the
document dated 23.09.2022 that the Board decided to file an
appeal, being aggrieved with the order passed by the writ court,
wherein, the writ court has directed the respondent-JUSNL to
refund the Labour Cess against the bill for supply of materials,
for ready reference, the communication dated 23.09.2022 is
being quoted as under:-
"i=kad&JBOCWW BOARD-256
>kj[k.M ljdkj
Je] fu;kstu ,oa izf'k{k.k foHkkx
>kj[k.M Hkou ,oa vU; lfUuekZ.k deZdkj dY;k.k cksMZ]
Je Hkou] Mksj.Mk] jk¡phA
}kjk]
lfpo]
>kj[k.M Hkou ,oa vU; lfUuekZ.k deZdkj dY;k.k cksMZ]
jk¡phA
lsok es]a
izca/k funs'kd]
JUSNL,
fuxe gsM DokVZj fcfYMax]
dqlbZ dkWyksuh] Mksj.MkA jk¡ph] fnukad&23-09-2022
fo'k;%& vkiwfrZ dh x;h lkefxz;ksa ij Labour Cess ds laca/k esaA
egk'k;]
mi;qZDr fo'k;d Hkonh; i=kad&1215 fnukad&21-07-2022 dk
2025:JHHC:14131-DB
d`i;k Lej.k djus dk d'V fd;k tk;A mDr i= }kjk lkexzh
vkiwfÙkZ fcyksa ij Labour Cess dVkSrh ds lac/a k esa dkjZokbZ dh
vis{kk dh x;h gSA fofnr gks fd JUSNL ds Vendor M/s
Flowmore Ltd. }kjk ekuuh; mPp U;k;ky;] >kj[k.M] jk¡ph esa
vkiwfÙkZ dh x;h lkefxz;ksa ij Labour Cess dh dVkSrh fd;s
tkus laca/kh ;kfpdk nk;j dh x;h gSA nk;j ;kfpdk esa ikfjr
funsZ'k ds vkyksd esa Hkou ,oa vU; lfUuekZ.k deZdkj dY;k.k
midj vf/kfu;e] 1996 ds Sec-3(1), Hkou ,oa vU; lfUuekZ.k
deZdkj midj fu;ekoyh] 1996 ds Rule-3 esa midj ij fn;s
x;s izko/kku rFkk Jharkhand Gazette (Extraordinary)
Monday 19th February, 2018 ds Rule-13 esa mYysf[kr
izko/kku ds vUrxZr LPA nk;j djus ,oa bl gsrq Advocate fy;s
tkus ds fy;s fof/k foHkkx ls ijke'kZ gsrq lafpdk vxzlkfjr gSA
lwpukFkZ izsf'krA
fo'oklHkktu
lfpo
>kj[k.M Hkou ,oa vU; lfUuekZ.k
deZdkj dY;k.k cksMZ] jk¡phA
Kkikad& JBOCWW BOARD-256 jk¡ph] fnukad&23-09-2022
izfrfyfi&lfpo] Je] fu;kstu] izf"k{k.k ,oa dkS"ky fodkl foHkkx] >kj[k.M
dks lwpukFkZ izsf'krA
lfpo
>kj[k.M Hkou ,oa vU; lfUuekZ.k
deZdkj dY;k.k cksMZ] jk¡phA
Kkikad& JBOCWW BOARD-256 jk¡ph] fnukad&23-09-2022
izfrfyfi&Jek;qDr@la;qDr Jek;qDr] jk¡ph dks lwpukFkZ izsf'krA
lfpo
>kj[k.M Hkou ,oa vU; lfUuekZ.k
deZdkj dY;k.k cksMZ] jk¡phA"
31. Moreover, it is evident that the copy of the affidavit filed on
behalf of the respondent, the Labour Commissioner, wherein,
the affidavit has been sworn by one of the officers under the
authority of Labour Commissioner-cum-Chairman of the Board.
32. It is evident therefrom as also evident from the party
position of the writ petition that the Labour Commissioner is
2025:JHHC:14131-DB
the party to the writ petition and the Chairman of the Board is
the same authority who holds the post of Labour
Commissioner.
33. An affidavit has been filed under the authority of the
Labour Commissioner who is also the Chairman of the Board
and further, the Labour Commissioner in the capacity of the
Chairman of the Board has taken decision to prefer the instant
appeals as per the content of the communication dated
23.09.2022 as quoted and referred hereinabove.
34. It is, thus, evident from the aforesaid document and the
counter affidavit that the Labour Commissioner was the party
to the writ petition, the proceeding filed at its inception by
invoking the jurisdiction conferred under Article 226 of the
Constitution and not only that the case was contested and in
presence of the Labour Commissioner who has been
represented by the learned State counsel, the order was passed
by the learned Single Judge directing the Board to refund the
amount in favour of the writ petitioner on the ground that there
cannot be any deduction on the head of Labour cess on the
material supplied.
35. The Labour Commissioner who is the Chairman of the
Board since was party to the writ petition and as such, this
Court is of the view that if one individual is holding two posts,
one by way of original assignment and another by holding
2025:JHHC:14131-DB
original assignment in ex-officio capacity, the other post, i.e.,
the Chairman of the Board, then, the question of having no
knowledge will not be available to be agitated.
36. The question of ex-parte decision will only be said to be ex-
parte decision, if in absentia of a party, the order is being
passed by the Court. Herein, the said situation is not available
due to the reason that the Labour Commissioner and the
Chairman of the Board are the same individual, as has been
admitted by the learned counsel for the appellant and would be
evident from the counter affidavit filed by one of the officers
who has fully been authorized to sworn the affidavit on behalf
of Labour Commissioner and the communication dated
23.09.2022.
37. The question of knowledge is required to be there so as to
have the opportunity to defend.
38. If the individual carries the post of Labour Commissioner
is different to that of the Chairman of the Board then, what is
being argued on behalf of the appellant, will be said to be
correct, due to the reason that in absence of knowledge of
pending proceeding by the Chairman of the Board on the
ground of two different identity holding the post of Labour
Commissioner and the Chairman, then, certainly it is available
for the Board to take the ground that the Chairman was having
no knowledge about the pending proceeding.
2025:JHHC:14131-DB
39. Herein, the Labour Commissioner and the Chairman of
the Board are the same individual and the same authority, has
also filed counter affidavit raising all the issues, which is
available to be agitated by the Chairman of the Board, has been
agitated by the Labour Commissioner by virtue of original
assignment. Hence, this Court is of the view that the ground
which is being taken that the Board being the necessary party
has not been impleaded as party, as such, the order passed by
the learned Single Judge needs to be recalled, cannot be said to
have any force due to the aforesaid reasons.
40. This Court, therefore, is of the view that it is not a case in
the backdrop of the discussion made hereinabove to agitate the
issue of non-impleadment of the necessary party, i.e., the
Board, since, the highest hierarchy of the Board, i.e., Labour
Commissioner who also happens to be Chairman was
impleaded as party and he has also contested the case by filing
counter affidavit.
41. This Court, therefore, is not hesitant in holding that
merely because the reference of the Board, i.e., Jharkhand
Building and Other Construction Workers Welfare Board has
not been made party, then the order passed by the learned
Single Judge will be said to be in absence of the Board, is not
worth to be considered.
42. The issue on merit has been argued by the learned
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counsel for the appellant as also the learned counsel for the
writ petitioner, the respondent herein.
43. We have considered the order passed by the learned Single
Judge, wherein, the purport of the Labour Cess Act has been
taken into consideration.
44. We have discussed the statutory command, as referred in
the judgment rendered in the case of Uttar Pradesh Power
Transmission Corporation Limited (Supra), wherein, the
"Labour Cess" has been dealt with which strictly bars to collect
the Labour Cess on the supply of material, for ready reference,
the relevant paragraphs of the aforesaid judgment, i.e.,
paragraph-51 to 54, are being referred as under:-
"51. The clear statutory scheme of the BOCW Act
excludes a supply contract from within its ambit.
On behalf of Respondent 1, it is pointed out that
several public authorities and corporations, such
as the Delhi Metro Rail Corporation and
Karnataka Power Transmission Corporation Ltd.,
have issued instructions that no cess under the
BOCW Act is leviable on a contract for supply of
goods. Copies of the Kptcl Circulars dated 22-8-
2012 and 28-8-2012 to this effect are annexed to
the rejoinder of Respondent 1 in the High Court.
52. Under Section 2(1)(g) of the BOCW Act the
term "Contractor" means a person who
undertakes to produce a given result for any
establishment, other than a mere supply of goods
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or articles of manufacture, by the employment of
building workers or who supplies building
workers for any work of the establishment and
includes a sub-contractor. Respondent 1 is
apparently not a contractor, within the meaning of
Section 2(1)(g) of the BOCW Act in respect of the
first, second and fourth contracts. Nor is
Respondent 1 employer within the meaning of
Section 2(1)(i) of the BOCW Act. Section 2(1)(i) of
the BOCW Act defines "employer" to include the
contractor in relation to a building and other
construction work carried on by or through a
contractor or by employment of building workers
supplied by a contractor. Respondent 1 neither
falls within the definition of "contractor" in Section
2(1)(g) nor 2(1)(i)(iii) of the BOCW Act. Apparently,
Respondent 1 is not liable to cess in respect of the
first, second and fourth contracts.
53. Cess under the Cess Act read with the BOCW
Act is leviable in respect of building and other
construction works. The condition precedent for
imposition of cess under the Cess Act is the
construction, repair, demolition or maintenance of
and/or in relation to a building or any other work
of construction, transmission towers, in relation
inter alia to generation, transmission and
distribution of power, electric lines, pipelines, etc.
Mere installation and/or erection of pipelines,
equipments for generation or transmission or
distribution of power, electric wires, transmission
towers, etc. which do not involve construction
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work are not amenable to cess under the Cess
Act. Accordingly no intimation or information was
given or any return filed with the assessing officer
under the Cess Act or the Inspector under the
BOCW Act in respect of the first and second
contracts, either by Upptcl or by Respondent 1.
54. A contractor who enters into a pure supply
contract is statutorily exempted from levy under
the BOCW Act. The contract in question is a
supply contract as would be evident from Clause
8.7 of the Special Conditions of Contract which
states:
"The contract shall be a 'Divisible Contract'
with single point responsibility, hence no
works contract tax shall be payable and the
Purchaser shall not bear any liability on this
account."
45. It is evident from the aforesaid paragraphs, wherein, it has
been laid down by considering the purport of the Act that the
Labour Cess cannot be deducted from the supply of material.
46. The question of unjust enrichment since has been taken
and as such, the same also needs to be discussed by this
Court.
47. The principle of unjust enrichment has been taken into
consideration by the Hon'ble Apex Court in the case of
MafatLal Industries Ltd & Ors Vs. Union of India & Ors
[(1997) 5 SCC 536], wherein, at paragraph-108 of the said
judgment, it has been held as under:-
"108. The discussion in the judgment yields the
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following propositions. We may forewarn that these
propositions are set out merely for the sake of
convenient reference and are not supposed to be
exhaustive. In case of any doubt or ambiguity in
these propositions, reference must be had to the
discussion and propositions in the body of the
judgment.
(i) Where a refund of tax/duty is claimed on
the ground that it has been collected from the
petitioner/plaintiff -- whether before the
commencement of the Central Excises and Customs
Laws (Amendment) Act, 1991 or thereafter -- by
misinterpreting or misapplying the provisions of the
Central Excises and Salt Act, 1944 read with
Central Excise Tariff Act, 1985 or Customs Act,
1962 read with Customs Tariff Act or by
misinterpreting or misapplying any of the rules,
regulations or notifications issued under the said
enactments, such a claim has necessarily to be
preferred under and in accordance with the
provisions of the respective enactments before the
authorities specified thereunder and within the
period of limitation prescribed therein.
No suit is maintainable in that behalf. While
the jurisdiction of the High Courts under Article 226
-- and of this Court under Article 32 -- cannot be
circumscribed by the provisions of the said
enactments, they will certainly have due regard to
the legislative intent evidenced by the provisions of
the said Acts and would exercise their jurisdiction
consistent with the provisions of the Act. The writ
petition will be considered and disposed of in the
light of and in accordance with the provisions of
Section 11-B. This is for the reason that the power
under Article 226 has to be exercised to effectuate
the rule of law and not for abrogating it.
The said enactments including Section 11-B of
the Central Excises and Salt Act and Section 27 of
the Customs Act do constitute "law" within the
meaning of Article 265 of the Constitution of India
and hence, any tax collected, retained or not
refunded in accordance with the said provisions
must be held to be collected, retained or not
refunded, as the case may be, under the authority
of law. Both the enactments are self contained
enactments providing for levy, assessment, recovery
and refund of duties imposed thereunder. Section
11-B of the Central Excises and Salt Act and Section
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27 of the Customs Act, both before and after the
1991 (Amendment) Act are constitutionally valid
and have to be followed and given effect to. Section
72 of the Contract Act has no application to such a
claim of refund and cannot form a basis for
maintaining a suit or a writ petition. All refund
claims except those mentioned under Proposition (ii)
below have to be and must be filed and adjudicated
under the provisions of the Central Excises and Salt
Act or the Customs Act, as the case may be. It is
necessary to emphasise in this behalf that Act
provides a complete mechanism for correcting any
errors whether of fact or law and that not only an
appeal is provided to a Tribunal -- which is not a
departmental organ -- but to this Court, which is a
civil court.
(ii) Where, however, a refund is claimed on the
ground that the provision of the Act under which it
was levied is or has been held to be
unconstitutional, such a claim, being a claim outside
the purview of the enactment, can be made either by
way of a suit or by way of a writ petition. This
principle is, however, subject to an exception :
Where a person approaches the High Court or the
Supreme Court challenging the constitutional
validity of a provision but fails, he cannot take
advantage of the declaration of unconstitutionality
obtained by another person on another ground; this
is for the reason that so far as he is concerned, the
decision has become final and cannot be reopened
on the basis of a decision on another person's case;
this is the ratio of the opinion of Hidayatullah, C.J.
in Tilokchand Motichand [(1969) 1 SCC 110 : (1969)
2 SCR 824 : AIR 1970 SC 898] and we respectfully
agree with it.
Such a claim is maintainable both by virtue of
the declaration contained in Article 265 of the
Constitution of India and also by virtue of Section 72
of the Contract Act. In such cases, period of
limitation would naturally be calculated taking into
account the principle underlying clause (c) of sub-
section (1) of Section 17 of the Limitation Act, 1963.
A refund claim in such a situation cannot be
governed by the provisions of the Central Excises
and Salt Act or the Customs Act, as the case may
be, since the enactments do not contemplate any of
their provisions being struck down and a refund
claim arising on that account. In other words, a
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claim of this nature is not contemplated by the said
enactments and is outside their purview.
(iii) A claim for refund, whether made under
the provisions of the Act as contemplated in
Proposition (i) above or in a suit or writ petition in
the situations contemplated by Proposition (ii) above,
can succeed only if the petitioner/plaintiff alleges
and establishes that he has not passed on the
burden of duty to another person/other persons. His
refund claim shall be allowed/decreed only when
he establishes that he has not passed on the
burden of the duty or to the extent he has not so
passed on, as the case may be. Whether the claim
for restitution is treated as a constitutional
imperative or as a statutory requirement, it is
neither an absolute right nor an unconditional
obligation but is subject to the above requirement,
as explained in the body of the judgment. Where the
burden of the duty has been passed on, the
claimant cannot say that he has suffered any real
loss or prejudice. The real loss or prejudice is
suffered in such a case by the person who has
ultimately borne the burden and it is only that
person who can legitimately claim its refund. But
where such person does not come forward or where
it is not possible to refund the amount to him for one
or the other reason, it is just and appropriate that
that amount is retained by the State, i.e., by the
people. There is no immorality or impropriety
involved in such a proposition.
The doctrine of unjust enrichment is a just and
salutary doctrine. No person can seek to collect the
duty from both ends. In other words, he cannot
collect the duty from his purchaser at one end and
also collect the same duty from the State on the
ground that it has been collected from him contrary
to law. The power of the Court is not meant to be
exercised for unjustly enriching a person. The
doctrine of unjust enrichment is, however,
inapplicable to the State. State represents the people
of the country. No one can speak of the people being
unjustly enriched.
(iv) It is not open to any person to make a
refund claim on the basis of a decision of a court or
tribunal rendered in the case of another person. He
cannot also claim that the decision of the
court/tribunal in another person's case has led him
to discover the mistake of law under which he has
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paid the tax nor can he claim that he is entitled to
prefer a writ petition or to institute a suit within
three years of such alleged discovery of mistake of
law. A person, whether a manufacturer or importer,
must fight his own battle and must succeed or fail in
such proceedings. Once the assessment or levy has
become final in his case, he cannot seek to reopen it
nor can he claim refund without reopening such
assessment/order on the ground of a decision in
another person's case. Any proposition to the
contrary not only results in substantial prejudice to
public interest but is offensive to several well-
established principles of law. It also leads to grave
public mischief. Section 72 of the Contract Act, or for
that matter Section 17(1)(c) of the Limitation Act,
1963, has no application to such a claim for refund.
(v) Article 265 of the Constitution has to be
construed in the light of the goal and the ideals set
out in the Preamble to the Constitution and in
Articles 38 and 39 thereof. The concept of economic
justice demands that in the case of indirect taxes
like Central Excises duties and Customs duties, the
tax collected without the authority of law shall not
be refunded to the petitioner-plaintiff unless he
alleges and establishes that he has not passed on
the burden of duty to a third party and that he has
himself borne the burden of the said duty.
(vi) Section 72 of the Contract Act is based
upon and incorporates a rule of equity. In such a
situation, equitable considerations cannot be ruled
out while applying the said provision.
(vii) While examining the claims for refund, the
financial chaos which would result in the
administration of the State by allowing such claims
is not an irrelevant consideration. Where the
petitioner-plaintiff has suffered no real loss or
prejudice, having passed on the burden of tax or
duty to another person, it would be unjust to allow
or decree his claim since it is bound to prejudicially
affect the public exchequer. In case of large claims,
it may well result in financial chaos in the
administration of the affairs of the State.
(viii) The decision of this Court in STO v.
Kanhaiya Lal Mukundlal Saraf [1959 SCR 1350 :
AIR 1959 SC 135 : (1958) 9 STC 747] must be held
to have been wrongly decided insofar as it lays
down or is understood to have laid down
propositions contrary to the propositions enunciated
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in (i) to (vii) above. It must equally be held that the
subsequent decisions of this Court following and
applying the said propositions in Kanhaiya Lal
[1959 SCR 1350 : AIR 1959 SC 135 : (1958) 9 STC
747] have also been wrongly decided to the above
extent. This declaration -- or the law laid down in
Propositions (i) to (vii) above -- shall not however
entitle the State to recover the taxes/duties already
refunded and in respect whereof no proceedings are
pending before any authority/Tribunal or Court as
on this date. All pending matters shall, however, be
governed by the law declared herein
notwithstanding that the tax or duty has been
refunded pending those proceedings, whether under
the orders of an authority, Tribunal or Court or
otherwise.
(ix) The amendments made and the provisions
inserted by the Central Excises and Customs Law
(Amendment) Act, 1991 in the Central Excises and
Salt Act and the Customs Act are constitutionally
valid and are unexceptionable.
(x) By virtue of sub-section (3) to Section 11-B
of the Central Excises and Salt Act, as amended by
the aforesaid Amendment Act, and by virtue of the
provisions contained in sub-section (3) of Section 27
of the Customs Act, 1962, as amended by the said
Amendment Act, all claims for refund (excepting
those which arise as a result of declaration of
unconstitutionality of a provision whereunder the
levy was created) have to be preferred and
adjudicated only under the provisions of the
respective enactments. No suit for refund of duty is
maintainable in that behalf. So far as the
jurisdiction of the High Courts under Article 226 of
the Constitution -- or of this Court under Article 32
-- is concerned, it remains unaffected by the
provisions of the Act. Even so, the Court would,
while exercising the jurisdiction under the said
articles, have due regard to the legislative intent
manifested by the provisions of the Act. The writ
petition would naturally be considered and
disposed of in the light of and in accordance with
the provisions of Section 11-B. This is for the reason
that the power under Article 226 has to be exercised
to effectuate the regime of law and not for
abrogating it. Even while acting in exercise of the
said constitutional power, the High Court cannot
ignore the law nor can it override it. The power
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under Article 226 is conceived to serve the ends of
law and not to transgress them.
(xi) Section 11-B applies to all pending
proceedings notwithstanding the fact that the duty
may have been refunded to the petitioner/plaintiff
pending the proceedings or under the orders of the
Court/Tribunal/Authority or otherwise. It must be
held that Union of India v. Jain Spinners [(1992) 4
SCC 389] and Union of India v. ITC [1993 Supp (4)
SCC 326] have been correctly decided. It is, of
course, obvious that where the refund proceedings
have finally terminated -- in the sense that the
appeal period has also expired -- before the
commencement of the 1991 (Amendment) Act (19-9-
1991), they cannot be reopened and/or governed by
Section 11-B(3) [as amended by the 1991
(Amendment) Act]. This, however, does not mean
that the power of the appellate authorities to
condone delay in appropriate cases is affected in
any manner by this clarification made by us.
(xii) Section 11-B does provide for the
purchaser making the claim for refund provided he
is able to establish that he has not passed on the
burden to another person. It, therefore, cannot be
said that Section 11-B is a device to retain the
illegally collected taxes by the State. This is equally
true of Section 27 of the Customs Act, 1962."
48. The question of unjust enrichment is to be considered in
the light of issue of entitlement, as has been held by the
Hon'ble Apex Court in the case of Eastern Coalfields Limited
Vrs. Tetulia Coke Plant Private Limited and Ors., reported
in (2011) 14 SCC 624, wherein, it has been held at paragraph-
12 which reads as under:-
"12. The learned Additional Solicitor General
has also submitted before us that the
respondents are not entitled to the benefit, if
they are otherwise entitled to on the principles
of unjust enrichment. We specifically asked the
learned Additional Solicitor General during the
course of the arguments to show us whether
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any such plea was taken in the writ petition
which was filed before the learned Single
Judge. The learned Additional Solicitor General
was unable to show that any such defence or
plea was taken about unjust enrichment in the
pleadings filed before the learned Single Judge.
Such an issue was also not argued before the
learned Single Judge as no such reference is
there in the order of the learned Single Judge. It
is, however, stated by the learned Additional
Solicitor General that such an issue was raised
before the Division Bench. But we could not find
the same raised in the pleadings nor was it
considered. But a mention is made in the
judgment that such a plea was argued.
However, on going through the records, we find
that no such ground has also been taken even
in the memorandum of appeal filed in the
present appeal. Therefore, without taking a plea
of unjust enrichment either in the writ petition
or before this Court, we are not inclined to allow
him to argue the plea at the time of argument
and entertain such a plea, particularly, in view
of the fact that the respondents did not have
any notice of such a plea taken for the first time
at argument stage."
49. It is evident from the settled proposition that the issue of
unjust enrichment will not be applicable if the amount which
has been deducted is contrary to the statutory provision.
Reference also needs to be made of judgment rendered by the
Hon'ble Apex Court in the case of Ashoka Smokeless Coal
India(P) Ltd. & Ors. Vrs. Union of India & Ors., (2007) 2
SCC 640, wherein, the scheme under which the amount has
been deducted itself has been held to be invalid. For ready
reference, the relevant paragraphs of Ashoka Smokeless Coal
India (P) Ltd. & Ors. Vrs. Union of India & Ors. (supra) is
quoted as under:
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"2. The validity and/or legality of a scheme framed by Coal
India Limited for sale of coal by electronic auction (e-auction)
is in question in these appeals and transferred applications.
E-auction
45. A new scheme known as e-auction was made
purportedly to meet the liberalisation policy of the Central
Government in regard to import of coal and opening of private
coal mines and to provide pragmatic and transparent system
of distribution of coal. 4.8 million tonnes of coal were offered
to the non-core sector in 2003-2004. The quantity earmarked
for non-core sector was restricted to 933 validly linked
consumers. The objectives of the said scheme are stated to
be as under:
"Objectives
The present system of sale of coal to non-core sector
consumers needs to be made more pragmatic and
transparent by accommodating the following changes:
(a) A consumer having requirement of specified quality of coal
from a particular colliery/source and siding/pilot should
have an access to buy coal by paying the market determined
price for the same.
(b) This approach would enable the non-core sector
consumers to receive coal of their choice, on payment of
market price, determined through auction confined to non-
core sector consumers."
Conclusion
188. Coal being a scarce commodity, its utility for the
purpose for which it is needed is essential. Although,
technically, in view of the fact that no price is fixed for coal,
there may not be any black marketing in the technical sense
of the terms; but this Court cannot also encourage black
marketing in general sense. Nobody should be allowed to
take undue advantage while dealing with a scarce
commodity. The very fact that despite best efforts of the
Central Government, the coal companies failed to curb the
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menace of a section of people and to deal in coal excluding
other general people therefrom or the linked consumers
misusing their position of obtaining allotment of coal either
wholly or in part, it is absolutely necessary that some
mechanism should be found out for plugging the loopholes.
The Union of India or the coal companies appear to have lost
confidence in the State Governments. They had carried out
joint inspection and in that process they must have arrived at
a satisfaction about the genuineness of the claims of
industrial units for which the linkage system was meant for.
189. Before us most of the consumers, with a view to obtain
supply of coal had filed documents to prove their
genuineness. The said documents must be scrutinised by the
authorities of the coal companies. In the event, they have any
suspicion, inspection should be carried out by officers
appointed by the Chairman-cum-Managing Director of the
company concerned within whose jurisdiction the unit is
situated.
190. With a view to evolve a viable policy, a committee
should be constituted by the Union of India with the
Secretary of Coal being the Chairman. In such a committee, a
technical expert in coal should also be associated as most of
the projects involve consumers of coal, particularly
manufacturers of hard coke and smokeless fuel. In our
opinion, it may not be difficult to find out, having regard to
the technologies used therein as regards the ratio of the input
vis-à-vis the output, with a balance and 10% margin. On the
basis of such finding alone, apart from the requirements of
five years, supply should form the basis of MPQ. We may,
however, hasten to add that the Central Government in
collaboration with the coal companies would be at liberty to
evolve a policy which would meet the requirements of public
interest vis-à-vis the interest of consumers of coal. They
would be entitled to lay down such norms as may be found
fit and proper. They would be entitled to fix appropriate
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norms therefor. In the event, any industrial unit is found to
violate the norms, it should be stringently dealt with.
193. However, discussions made hereinbefore should not be
taken to lay down a law that the Central Government and for
that matter the coal companies cannot change their policy
decision. They evidently can; but therefor there should be a
public interest as contradistinguished from a mere profit
motive. Any change in the policy decision for cogent and valid
reasons is acceptable in law; but such a change must take
place only when it is necessary, and upon undertaking of an
exercise of separating the genuine consumers of coal from the
rest. If the coal companies intend to take any measure they
may be free to do so. But the same must satisfy the
requirements of constitutional as also the statutory schemes;
even in relation to an existing scheme e.g. Open Sales
Schemes, indisputably the coal companies would be at
liberty to formulate the new policy which would meet the
changed situation. E-advertisement or e-tender would be
welcome but then therefor a greater transparency should be
maintained.
194.For the reasons aforementioned, Civil Appeals Nos.
2972 and 2975 of 2005 being devoid of any merits are
dismissed. Civil appeal arising out of SLP (Civil) No. 24034 of
2005 is allowed and the impugned judgment of the Madhya
Pradesh High Court is set aside. No separate order is
required to be passed on Civil Appeal No. 5547 of 2004
arising out of the judgment and order of the Calcutta High
Court as the said case would also be governed by this
judgment. All other appeals, writ petition and transferred
cases are disposed of with the aforementioned observations
and directions."
50. The judgment rendered in the case of Ashoka Smokeless
Coal India(P) Ltd. (supra) has been considered in the case of
S.J. Coke Industries Private Limited & Ors. Vrs. Central
Coalfields Limited & Ors., (2015) 8 SCC 72 holding therein
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that if the very basis of deduction itself has been held to be
valid, the party concerned from whom, the money has been
deducted, the same is to be refunded, for ready reference, the
relevant paragraphs of the judgment passed in the case of S.J.
Coke Industries Private Limited & Ors. (Supra) are being
quoted as under:-
"38. Keeping in view the stand taken by CCL and the
manner in which they contested the cases at all stages in
different High Courts and in this Court by raising same
pleas despite their adjudication by this Court lead us to
draw a conclusion that untenable pleas were being raised
by CCL just to defeat the legitimate claim of the citizens
determined in their favour by this Court in earlier
litigations and which was known to CCL.
40. As a consequence, the appeals filed by Central
Coalfields Ltd. -- CA arising out of SLPs (C) Nos. 14430,
15985, 15986, 15987, 15989, 15990 and 15991 of 2013
stand dismissed.
41. CCL is directed to verify the claim of each of the
writ petitioners and then after giving adjustment of
any amount if already found paid to the writ
petitioners against their claim in question, refund
the balance amount along with interests @ 6% to the
respective writ petitioners (companies). Let this be
done within three months."
51. The question of unjust enrichment therefore will not be
applicable if the amount has been deducted contrary to the
statutory provision having no authority to deduct the same.
52. Adverting to the facts of the present case herein also the
Labour cess has been deducted on the basis of audit report,
while, the statute prohibits the same.
53. Therefore, applying the principle laid down in the case of
S.J. Coke Industries Private Limited & Ors. (supra), this
Court is of the view that in the facts and circumstances of the
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present case in a situation of Labour cess being held to be not
applicable in the supply of material, the principle of unjust
enrichment, will not be applicable.
54. It has been submitted by Mr. Mittal, learned senior
counsel for the respondent that out of eight cases, in two of the
cases, the amount which has been deducted under the Labour
cess head has already been refunded back in favour of the
party concerned.
55. This Court posed a pin-pointed question to the learned
counsel for the appellant on the issue of refund of the amount
in pursuance to the order passed by this Court in the case of
W.P.(C) No.6262 of 2022 and W.P.(C) No.241 of 2023. The
aforesaid fact has not been disputed.
56. Therefore, the question is that the Board being the
statutory creation can be allowed to adopt the pick and choose
policy.
57. The conduct of the Board itself suggests that they have
chosen not to challenge the issue of refund of money which has
been deducted by the JBVNL and transmitted to the account of
the Board, then what authority they can be allowed to take the
ground not to refund the amount.
58. Further, the JBVNL who is the party to the contract said
to be concluded one and the JBVNL has accepted the order
passed by the learned writ Court based upon the statutory
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command having been interpreted by the Hon'ble Apex Court in
the case of Uttar Pradesh Power Transmission Corporation
Limited & Anr. (supra), hence, the Board merely because the
amount has been transmitted by the party to the contract, i.e.,
JBVNL in no stretch of imagination, can come with the plea
that such amount even though has illegally been deducted is
not to be refunded back in favour of the writ petitioner.
59. This Court, in view of the aforesaid discussion and
adverting to the order passed by the learned Single Judge in the
writ petition as also under the jurisdiction of review, is of the
view that no error has been committed while passing the order
impugned, therefore, all the appeals are to be dismissed.
60. In the result, the instant appeals fail and are dismissed.
61. In consequent to dismissal of the instant appeals, pending
interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I agree
(Pradeep Kumar Srivastava, J.)
(Pradeep Kumar Srivastava, J.)
Rohit/-A.F.R.
