Madhya Pradesh High Court
M/S Orange Bercha Wind Power Pvt. Ltd. vs The State Of Madhya Pradesh on 24 June, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:15182
1 WP-8163-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 24 th OF JUNE, 2025
WRIT PETITION No. 8163 of 2021
M/S ORANGE BERCHA WIND POWER PVT. LTD.
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Manu Maheshwari - Advocate for the petitioner.
Shri Bhuwan Gautam - Government Advocate for the respondent/State.
ORDER
Per: Justice Vivek Rusia
1. The petitioner has filed this present petition challenging the order dated
12.3.2021 passed by the Additional Labour Commissioner and Cess Assessment
Authority, Indore appointed under the Building and Other Construction Workers
Welfare Cess Act, 1996 (hereinafter referred as "BOCW Act").
2. By the impugned order, the learned authority has calculated the cess
amount of Rs.3,20,50,540/- on the basis of the project cost of Rs.3,20,50,54,081/-.
The petitioner has challenged the aforesaid order by way of writ petition inter-alia
on the ground that the cost of land, erection and civil work was Rs.51,46,49,156/-
and out of which only Rs.14,98,92,408/- were spent for construction work. The
petitioner has deposited the 1% Cess Rs.14,64,755/- with the department.
3. The aforesaid contention has been rejected and vide impugned order dated
12.3.2021 the learned Authority has imposed the cess of Rs.3,05,85,788/-, which is
1% of the total project cost Rs.3,20,50,54,081/-.
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4. Similar issue came up for consideration before the Apex Court in the case
of Uttar Pradesh Power Transmission Corporation Ltd. and Another Vs. CG Power
and Industrial Solutions Limited and Another [judgment dated 12.5.2021 passed in
Special Leave Petition (C) No.8630 of 2020], in which the Apex Court has held
that the object of enactment of BOCW Act, Cess Act and the Rules is to regulate
the employment and conditions of service of building and other construction
workers. The extension of the liability on a contractor is with a view to ensure that
if for any reason it is not possible to collect the 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 Apex Court has finally concluded that the cess
under the Cess Act read with 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 and in relation to a
building or any other work of construction.
5. Therefore, Shri Maheshwari, learned counsel for the petitioner submits
that in view of the aforesaid the impugned order is unsustainable and liable to be
set aside.
6. Shri Bhuwan Gautam, learned Government Advocate for the respondents
submits that the writ petition is not maintainable. The petitioner has a remedy of
appeal before the appellate authority. The appellate authority may consider the
judgment passed by the Apex Court while deciding the appeal.
7. We have perused the impugned order and it is apparent that the competent
authority has passed the order mechanically calculating the cess @ 1% on the total
cost of the project, whereas as per the judgment passed by the Apex Court in the
case of Uttar Pradesh Power Transmission Corporation Ltd. (supra), the cess is
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liable to be paid only in respect of the cost incurred in civil construction work etc.
8. Learned counsel for the petitioner submits that the petitioner has
challenged the constitutional validity of the Rule 14(2)(b) & 14(2)(c) of BOCW
Cess Rules, 1998.
9. In view of the aforesaid reasons, the impugned order is liable to be
quashed and the matter is liable to be remanded back to the competent authority,
therefore, at this stage the constitutional validity of the aforesaid rules is not being
considered. The opportunity is granted to the petitioner to challenge it, if the
occasion so arises in future.
10. Hence, the impugned order dated 12.3.2021 passed by the respondent
No.3 is set aside and the matter is remitted back to the competent authority to
examine the case again in the light of the judgment passed by the Apex Court in
the case of Uttar Pradesh Power Transmission Corporation Ltd. (supra). The
petitioner shall produce all the documents relating to the civil construction work
and after examining the documents, the authority shall calculate the cess payable
by the petitioner.
11. Writ petition is accordingly disposed of.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
trilok
