ORDER : The first respondent-Special Project Engineer, Indian Institute of Science, Bangalore, issued a tender notification on 29.12.2008 for construction of new hostel complex with kitchen and dining Block at IISc Campus, Bangalore. The tender amount was Rs.68.30 lakhs. The petitioner had participated in the tender and finally it was awarded to the petitioner. 2. An agreement was entered into between the petitioner and the first respondent on 30.04.2009. This agreement between the parties omitted to mention payment of 1% cess recoverable at source. Again it was clarified by the first respondent by issuing a corrigendum for recovery of 1% cess on contract value. In view of non-inclusion in the contractual agreement, on the basis of corrigendum issued, it was not obligatory on the part of the petitioner to pay 1% cess to either first or second respondent. 3. The learned Counsel for the petitioner while referring to Section 2(1)(i) of the Building and Other Construction Workers (Regulation of Employment And Conditions of Service) Act, 1996, (hereinafter referred to as ‘the Act’ for short) submits that ‘employer’ for the purpose of deduction is the first respondent. Accordingly, the recovery of 1% cess should have been provided in the agreement. Under the circumstances, insisting the petitioner to pay 1% cess is arbitrary and it is ultra vires to the provisions of the Act. It is the submission of the petitioner that unless there is an express agreement between the contractor and the first respondent, it cannot be recovered and if at all recovery is made, it is in contravention of the agreement. 4. In support of his submission, the learned Counsel for the petitioner referred to the judgment of Andhra Pradesh High Court in W.P.No.6090/2011 between M/s. Maytas-NCC-JV and The Secretary to Government, wherein at paragraph-4 it is held that recovery arises only when the corresponding amount is included in the estimates and conversely if the amount representing the cess is not included in the estimates, deductions cannot be made while making payment to the contractors. 5. The learned Counsel for the petitioner has referred to another judgment dated 22.10.2009 in W.P.No.11269/2009 and connected matters, wherein at internal page No.4 it has been held that “therefore, the inescapable conclusion is that the occasion for an agency to deduct the cess under the Cess Act would arise only when the corresponding amount is included in the estimates. 5. The learned Counsel for the petitioner has referred to another judgment dated 22.10.2009 in W.P.No.11269/2009 and connected matters, wherein at internal page No.4 it has been held that “therefore, the inescapable conclusion is that the occasion for an agency to deduct the cess under the Cess Act would arise only when the corresponding amount is included in the estimates. Conversely, if the amount representing the cess, is not included in the estimates, deductions cannot be made while making payments to the contractors”. 6. Learned Counsel for respondent No.2 requests this Court to dismiss this petition on the ground that even with or without mentioning the deduction of cess under the agreement or if the deduction is mandatory it is inescapable by assigning any reasons and when the law demands that there shall be deductions at source itself, then without there being any reference to the agreement there shall be deduction by the person who is empowered to do so. 7. The learned Counsel referred to Section 2(1)(i) of the Act, where it defines ‘employer’ in relation to an establishment, which means the owner thereof, and includes,- (iii) 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. 8. Learned Counsel for respondent No.2 further submitted that for the purpose of deduction, it is only the petitioner who can be the employer and if the deduction is to be made, it ought to be done strictly in accordance with the provisions of Labour Cess Act. 9. The learned Counsel further refers to subsection (2) of Section (3) of The Building And Other Construction Workers’ Welfare Cess Act, 1996, which states that cess levied under sub-section (1) of Section (3) shall be collected from every employer for the purpose of employment. 10. The learned Counsel referred to the definition of ‘employer’ under the Act where it is defined that ‘employer’ is a contractor and not the Government or the Board. 11. Hence, the learned Counsel submits that action on the part of the respondents insisting upon the petitioner to pay cess amount is strictly in compliance of the Cess Act and the Building and Other Construction Workers’ Welfare Cess Act. 11. Hence, the learned Counsel submits that action on the part of the respondents insisting upon the petitioner to pay cess amount is strictly in compliance of the Cess Act and the Building and Other Construction Workers’ Welfare Cess Act. Hence, there is no arbitrariness on the part of the respondents and justifies the action of the respondents in directing collection of cess amount from the petitioner. 12. Learned Government Advocate for respondent No.2-Welfare Board supports the action on the part of the respondents insisting the petitioner for deduction. He further submitted that the deduction is not made at the instance of an agreement entered into between the petitioner and respondents, but shall have to be made as per provisions of the Act. When the law demands that there shall be deduction at source, then with or without an agreement, deductions shall be made and it is in compliance with the provisions of Article 43 of the Constitution of India. Under these circumstances, learned Counsel submitted to dismiss this petition. 13. Heard learned Counsel for both the parties. 14. Learned Counsel for the first respondent supports the order and it is submitted that it is mandatory on the part of the respondents to deduct 1% cess from the contractual amount and it is in accordance with the provisions of the Act and also in compliance with the order passed. 15. The Act was brought in compliance with provisions of Article 43 of the Constitution of India. It is mandatory on the part of the person who floats the tender notification to collect 1% cess at the source itself for the purpose of construction of building. It is not an option open to either of respondent Nos.1 and 2. It is mandatory to collect cess, though the agreement is entered into between the parties and by issuing corrigendum the payment of 1% cess is provided, even then the provisions of law should prevail and not terms of agreement and it shall be the duty of the respondents to collect 1% cess from the petitioner. 16. The petitioner who is a registered and licenced contractor from the Government of Karnataka for the purpose of construction of building, it is presumed that a person who is a registered contractor or licencee from the Government, must be knowing the contents of the provisions of the Building and Other construction work and also Cess Act. 16. The petitioner who is a registered and licenced contractor from the Government of Karnataka for the purpose of construction of building, it is presumed that a person who is a registered contractor or licencee from the Government, must be knowing the contents of the provisions of the Building and Other construction work and also Cess Act. Hence the submission made by the learned Counsel for the petitioner squarely goes outside the provisions of the Act and law demands that contractor has to pay cess from out of the total contractual value. It is to be taken that there shall be deduction and it is not open for the respondents to exclude or to tinker with it. 17. The word ‘employer’ which is defined under Section 2(1) and clause (i) of the Act, clarifies the position that for the purpose of deduction, it is the contractor who becomes the employer and the same shall not be shifted either on the first or second respondent. The Government would become the employer only in case where the Government itself takes up the task of construction. 18. In the circumstances, where the contractor is appointed or nominated or engaged, for the purpose of payment of 1% cess, it is only the contractor and not the Government or the Board, who is liable to pay the cess. 19. Further, it is clarified that the respondent or the Government or the Board have no power either to reduce or delete or to make any alterations for payment of cess, otherwise it is ultra vires of the provisions of the Act, and it is the persons who issued the corrigendum like in the present case, are personally liable, in case of requirements of provisions of law are not complied. 20. With these observations, petition is to be dismissed. Accordingly the petition is dismissed.