ORDER : 1. The present Writ Petition came to be filed under Article 226 of the Constitution of India seeking the following relief:- “to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any appropriate Writ, Order or directiona) Declaring that the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, the Building and Other Construction Workers Welfare Cess Act, 1996 and the Central and State Rules framed thereunder are not applicable to the work being carried out by the Petitioner herein under the agreements dated 11.02.2008 between the Respondent No.3 viz., the Manager (Personnel), Uranium Corporation of India Ltd., Thummalapalli Project (Post), Vemula (M), YSR District and the Petitioner; and consequently. b) declaring that the Respondent Nos.1 and 2 herein viz., The Commissioner of Labour & the Deputy Commissioner of Labour, Kadapa have no jurisdiction whatsoever and that no amount is payable to them towards cess under the Building and Other Construction Workers Welfare Cess Act, 1996 and the Central and State Rules framed thereunder, while also declaring that the Notice No.A/373/2011, dated 20.04.2011 issued by Respondent No.2 viz., the Joint Commissioner of Labour, Kadapa as being void, nonPage est, invalid, enforceable and inoperative in law; and consequently. c) Restrain the Respondents, their Officers and Staff, from enforcing the Building and Other Construction Workers (Regulation of Employment and Conditions of Services) Act, 1996, the Building and Other Construction Workers Welfare Cess Act, 1996 and the Central and State Rules framed thereunder against the activities carried on by the Petitioner pertaining to erection and commissioning of Uranium Ore Mining Processing Project of the Respondent No.3 as awarded under the contract dated 11.02.2008; and And pass such other order or orders ….”. 2. The averments, in brief, in the writ affidavit are: Petitioner is a company incorporated under the Companies Act, 1956, having its registered office at 4, Mangoe Lane, Kolkata – 700 001. It is engaged in providing turnkey solutions in the areas of Power, Steel, Aluminum, Material Handling, Mineral Beneficiation, Pyro-processing, Pneumatic Handling of powdered materials, including fly ash handling and high concentrate disposal, coal washing, port cranes, civic and industrial water supply, etc,. Petitioner undertook and executed various works on Turnkey basis, including erection and commissioning of various mineral processing plants such as iron ore, Boxite, Dolonite, Coal, Rock Phospate, Gold, Uranium Ore etc. Petitioner undertook and executed various works on Turnkey basis, including erection and commissioning of various mineral processing plants such as iron ore, Boxite, Dolonite, Coal, Rock Phospate, Gold, Uranium Ore etc. which involves crushing, grinding, neutral thickening, sand slime separation, tailing disposal, water, compressed air and allied system, which are peculiar to Metal and Steel Industries. Respondent No.3 herein is a Government of India undertaking established for carrying on mining uranium ore in the country. Respondent No.3 invited sealed tender vide tender No.01 (UCTL-I), dated 17.02.2007 for design, engineering, planning, procurement, supply, manufacture/ fabrication, painting, erection, testing and inspection, commissioning and performance testing, complete in all aspects, on EPC/Turnkey basis, of all mechanical, electrical, civil, structural, architectural, air conditioning and ventilation, environmental, management, instrumentation and control with all equipment and accessories for the crushing, grinding, thickening, sand slime separation, tailing disposal, water, compressed air and allied systems having a capacity to treat 3000 MT/day of ore at the project site Tummalapalle, District Kadapa, AP. The writ petitioner participated in the bid and became successful bidder. Subsequently on 11.02.2008, a contract agreement was entered into between the petitioner and respondent No.3. In accordance with the agreement works were executed. While so, respondent No.3 addressed letter/notice Rc.No.A/367/2011, dated 28.04.2011, to the Manager (Personnel) of respondent No.3 calling upon him to collect 1% cess on the cost of construction/estimated cost of construction under the Buildings and Other Construction Workers Welfare Cess Act, 1996 (for short ‘Cess Act’) on the cost of construction/estimated cost of construction from all its contractors including the petitioner within 15 days, failing which respondent No.3 will be liable to pay interest and penalty and to comply with the provisions of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (Act No.27/1996) (for short the ‘Main Act’) and Rules thereunder, which was followed by impugned notice i.e. notice in Rc.No.A/373/2011, dated 28.04.2011 issued by respondent No.2 purportedly addressed to the petitioner requiring it to pay the cess @1% on the cost of construction taken up at Uranium Corporation of India Limited. Respondent No.2 further directed to produce the information in Form-I along with certain records pertaining to the Project work. Respondent No.2 further directed to produce the information in Form-I along with certain records pertaining to the Project work. Pursuant to issuance of impugned notice, petitioner addressed a detailed reply, dated 12.05.2011 stating that the activities of the petitioner which have been awarded by respondent No.3 do not fall under Buildings and Other Construction Workers Welfare Cess Act, 1996 (for short ‘Cess Act’) and particularly when the establishment of respondent No.3, which has been registered under the Mines Act, 1952, it stands excluded from the scope of the Cess Act. However, there is no communication whatsoever either from respondent No.1 or from respondent No.2. On the other hand, respondent No.3 has been threatening to effect deduction of alleged 1% cess on the bills so far submitted by the petitioner to respondent No.3. Hence, challenging the impugned notice the present writ petition was filed. 3. Respondent No.2 filed counter stating that the relief sought in this writ petition is premature and hence, the same is not maintainable in law. Petitioner having submitted explanation to respondent No.2 while responding to a notice issued by the said authority under Cess Act read in conjunction with Main Act, ought to have awaited the exercise of jurisdiction by respondent No.2. But, the petitioner without awaiting further adjudication by the primary authority under the provisions of the Act and the Rules, against which assessment, an appellate remedy is provided under Section 11 of the Cess Act read with 14 of the Building and Other Construction Workers Welfare Cess Rules, 1998 (for short the ‘Rules’) filed the present writ petition and hence writ petition itself is not maintainable. It is stated that respondent No.3 corporation is establishing the project site at Thummalapalli Village. Vemula Mandal, YSR District and entrusted the construction of Uranium Ore Project to the petitioner and the activities carried out are covered under Section 2(1)(d) of the Building and Other Construction Workers Act, 1996. Respondent No.2 issued notice requesting to pay the cess. Authority is yet to ascertain the Cess. Since there is appeal provision, this writ petition is not maintainable. Hence, prayed to dismiss the writ petition. 4. Respondent No.2 issued notice requesting to pay the cess. Authority is yet to ascertain the Cess. Since there is appeal provision, this writ petition is not maintainable. Hence, prayed to dismiss the writ petition. 4. Respondent No.3 filed counter stating that it is a Public Sector Enterprise of Government of India incorporated under the Companies Act, 1956 and is inter alia engaged in the business of Mining and Processing of Uranium Ore to produce the fuel for use in the Nuclear Power Cycle. With an intention to establish Uranium Mine and Uranium Ore Processing Plant in Tummalapalle, Kadapa District, tenders were called for and petitioner became successful bidder. While the construction work was in progress, respondent No.2 issued a letter directing respondent No.3 to collect 1% cess on the cost of construction under Cess Act. In reply to the same, petitioner addressed a representation to respondent No.2 stating that Cess Act is not applicable to respondent No.3 establishment since the same is governed by the Mines Act, 1952 and Factories Act, 1948. The project of respondent No.3 is covered under the provisions of the Mines Act, 1952 and Factories Act, 1948 and its core operations involve Mining and Processing of uranium Ore to fulfill the nuclear energy needs of our country. Construction of Uranium Mine and the Processing Plant being carried out by respondent No.3 does not constitute “Building or Other Construction Work” as envisaged under the conditions of Service Act and the Cess Act, as under the said Act, the cess is only leviable on cost of construction in relation to the “Building or other Construction Work”. As such respondent No.3 is not liable to pay cess in relation to the construction of a Mine and a Processing Plant, which is registered under the Mines Act, 1952 as well as Factories Act, 1948. The Mines Act, 1952 and Factories Act, 1948 are independent and complete codes containing and providing for various administrative structures and numerous enforcement mechanisms. It is stated that since the activities of respondent No.3 are governed by the Mines Act, 1952 and Factories Act, 1948, Cess Act does not apply to respondent No.3. 5. Heard Sri C.R. Sridharan, learned Senior Counsel representing Sri GVS Ganesh advocate for the petitioners, learned Advocate General for the State the learned standing counsel appearing for R3. 6. It is stated that since the activities of respondent No.3 are governed by the Mines Act, 1952 and Factories Act, 1948, Cess Act does not apply to respondent No.3. 5. Heard Sri C.R. Sridharan, learned Senior Counsel representing Sri GVS Ganesh advocate for the petitioners, learned Advocate General for the State the learned standing counsel appearing for R3. 6. Learned Senior Counsel would contend that the definition and expression ‘building and other construction work’ in Section 2(1)(d) of the Main Act, clearly envisages that it does not include building and other construction work to which the provisions of Mines Act, 1952 applies. He submits that respondent No.3 is carrying out its activities which constitute a ‘mine’ as defined under Section 2(j) of the Mines Act, 1952 for the purpose of searching for or excavating the uranium Ore which is a ‘mineral’ as defined under Section 2(jj) of the Mines Act, 1952. The agreement entered between the petitioner and respondent No.3 covers works which fall under mines area. 7. Learned Senior Counsel further submits that as per Clause 26.0 of annexure to Special Conditions of Contract pertaining to Work Contracts specifically denotes compliance of provisions of the Mines Act, 1952 apart from other labour legislations. He submits that the enactment made in the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (Act No.27/1996) (for short the ‘Main Act’), excludes the applicability of the Acts to any building or other construction work to which the provisions of the Mines Act, 1952 apply, which fact is not in dispute, and hence respondent Nos.1 and 2 cannot seek to enforce the provisions of the Main Act or Cess Act against the petitioner. 8. Learned Senior Counsel further submits that the activities undertaken by the petitioner in respect of the Processing Project of respondent No.3 would not at all attract the definition of the expression ‘Building and Other Construction Work’. Section 2(d) of the Main Act, which applies only to such construction, alteration, repair, maintenance or demolition of or in relation to buildings, dams, etc. and the words ‘mine or uranium ore mining’ is not used, as such the provisions of Main Act or Cess Act or the Rules made thereunder do not apply in the present case. 9. Section 2(d) of the Main Act, which applies only to such construction, alteration, repair, maintenance or demolition of or in relation to buildings, dams, etc. and the words ‘mine or uranium ore mining’ is not used, as such the provisions of Main Act or Cess Act or the Rules made thereunder do not apply in the present case. 9. Learned Senior Counsel submits that the definition of the expression ‘building and other construction work’ under Section 2(1)(d) of the main Act, clearly envisages that it does not include building and other construction work to which the Mines Act, 1952 applies. 10. It is further submitted that the entire Contract is covered by Section 3 of the Mines Act. He further contended that the contract should not be read by splitting and the contract is supply contract, but not construction contract. By placing reliance on several decisions, learned Senior Counsel prays to set aside the impugned notice. In fact senior counsel also put forth contentions regarding doctrine of per incuriam and non consideration of the word ‘mean’ in the definition of Sec 2(d) of the Main Act. 11. Learned Advocate General, in addition to the contentions raised in the counter, has drawn attention of this Court to the definitions of ‘worker’ and ‘manufacturing process’ in the Factories Act of 1948 and submitted that the workers of the contractors, in this writ petition, cannot be stated to be the workers within the meaning of the ‘worker’ defined under Section 2(1). 12. Learned Advocate General further contended that erection of a structure like blast furnace is squarely covered by the definition of BOCW since it involves civil works. He further submits that the Building and Other Construction Workers (Regulation and Employment and Conditions of Service) Act, 1996 (Act 27 of 1996) was enacted by the Parliament in the 47th year of the Republic of India, with a view to regulate the employment and conditions of service of building and other construction workers and to provide safety, health and welfare measures and for other matters connected therewith or incidental thereto and the Cess Act was enacted to provide for the levy and collection of Cess on the cost of construction incurred by the employers with a view to augment the resources of the Building and Other Construction Workers’ Welfare Boards constituted under the Main Act. 13. 13. He would further submit that Section 2(1)(d) of the Main Act defines the building or other construction work as meaning the construction, alteration, repairs, maintenance or demolition of or in relation to building, streets, roads, railways, tramways, airfields, irrigation, drainage, embankment and navigation works, flood control works (including storm water drainage works), generation, transmission and distribution of power, water works, etc. and other work, as may be specified, in this behalf by the Government by notification, to which provisions of Factories Act, 1948 or the Mines Act, 1952 apply. He would submit that the work done by petitioner company falls under the ambit of Section 2(1)(d) of the Main Act. 14. He further submits that the contract awarded to the petitioner shows the involvement of installation and erection of environmental plant and equipment, etc as a part of the processing infrastructure being put by the petitioner to process ore at the site and this activity is clearly comprehended in the definition of Section 2(1)(d) of the Main Act. 15. Learned Advocate General further submits that the subject matter involves adjudication on questions of the fact. If the relevant records, as required, are made available, the authority will take a decision. 16. Learned Advocate General further submits that the Mines Act being amended for regulation of labour and safety in Mines, does not apply to the activity sought to be undertaken by the petitioner. Since the work undertaken by the petitioner is construction of processing plant, which includes erection and installation of electrical plants equipment, etc. the notice impugned was issued by respondent No.2 and there is no illegality in issuance of said notice. 17. Learned Advocate General would further submit that merely because there is a contract between the contractor and the company whereby the contractor claims to have been taken all responsibilities of their workers would not mean the workers stood excluded from the benefits contemplated under BOCW Act. Eventually pleaded that there are no merits in the writ petition. 18. The point to be considered is whether the contract entered into by petitioner with 3rd respondent on 11.02.2008 would attract provisions of Acts 27 and 28 of 1996 and Rules made thereunder? 19. In Lanco Anpara Power Limited v. State of Uttar Pradesh and Others, 2016 (1) SCC 329, similar issue fell for consideration before the Hon’ble Apex Court. 18. The point to be considered is whether the contract entered into by petitioner with 3rd respondent on 11.02.2008 would attract provisions of Acts 27 and 28 of 1996 and Rules made thereunder? 19. In Lanco Anpara Power Limited v. State of Uttar Pradesh and Others, 2016 (1) SCC 329, similar issue fell for consideration before the Hon’ble Apex Court. The Hon’ble Apex Court observed as follows at para Nos.31 to 35: 31. Before dealing with the argument predicated on literal construction, we would like to deal with the second aspect as the answer to that would facilitate the answer to this aspect as well. Section 2(m) of the Factories Act defines “factory” in the following manner: “2. (m) “factory” means any premises including the precincts thereof— (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on— But does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952) or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place. Explanation I.—For computing the number of workers for the purposes of this clause all the workers in different groups and relays in a day shall be taken into account; Explanation II.—For the purposes of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof;” 32. Section 2(k) of the Factories Act defines “manufacturing process” in the following manner: “2. Section 2(k) of the Factories Act defines “manufacturing process” in the following manner: “2. (k) “manufacturing process” means any process for— (i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal, or (ii) pumping oil, water, sewage or any other substance, or (iii) generating, transforming or transmitting power, or (iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding, or (v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels, or (vi) preserving or storing any article in cold storage;” 33. It is also necessary to take note of the definition of “worker”, which is contained in Section 2(l) of the Factories Act. It reads as under: “2. (l) “worker” means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process but does not include any member of the armed forces of the Union;” 34. On the conjoint reading of the aforesaid provisions, it becomes clear that “factory” is that establishment where manufacturing process is carried on with or without the aid of power. Carrying on this manufacturing process or manufacturing activity is thus a prerequisite. It is equally pertinent to note that it covers only those workers who are engaged in the said manufacturing process. Insofar as these appellants are concerned, construction of building is not their business activity or manufacturing process. In fact, the building is being constructed for carrying out the particular manufacturing process, which, in most of these appeals, is generation, transmission and distribution of power. Obviously, the workers who are engaged in construction of the building also do not fall within the definition of “worker” under the Factories Act. On these two aspects, there is no cleavage and both parties are at ad idem. What follows is that these construction workers are not covered by the provisions of the Factories Act. 35. Obviously, the workers who are engaged in construction of the building also do not fall within the definition of “worker” under the Factories Act. On these two aspects, there is no cleavage and both parties are at ad idem. What follows is that these construction workers are not covered by the provisions of the Factories Act. 35. Having regard to the above, if the contention of the appellants is accepted, the construction workers engaged in the construction of building undertaken by the appellants which is to be used ultimately as factory, would stand excluded from the provisions of the BOCW Act and the Welfare Cess Act as well. Could this be the intention while providing the definition of “building and other construction work” in Section 2(1)(d) of the BOCW Act? Clear answer to this has to be in the negative. 20. Now coming to the facts of the case, a perusal of the agreement dated 11.02.2008 entered into between petitioner and 3rd respondent would disclose that the works undertaken by the petitioner company includes civil works. It is apt to extract the relevant portion of the agreement, which is filed along with material papers, for a clearing understanding of the case. “UCLT-1, package-crushing, grinding, neutral thickening, sand slime separation, tailing disposal, water compressed Air and allied systems” “lumpsum price for Design, Engineering, planning, procurement, manufacture, fabrication, supply, painting, testing at site and works, delivery, CIF site, receiving, unloading, storage, insurance, handling, Civil and structural architectural works, erection, final check-up, final testing, trial run, commissioning including performance testing including all taxes and duties for all plant, equipment and services as per scope outlined elsewhere in the specification but excluding recommended & Insurance spare parts (total of 2,01,00 thru 2,06,00 should be equal to furnished in 1,00.00). (Emphasis is mine). Thus, a perusal of the above extract shows that contract undertaken by the petitioner would, prima facie, include civil works also. 21. The contention of the learned senior counsel is that 3rd respondent is governed by Mines Act and the same was excluded from the purview of application of provisions of the Cess Act and therefore, the work undertaken by the petitioner does not attract the provisions of Main Act or Cess Act or the Rules made thereunder lack merit in view of division bench judgement referred to infra. 22. 22. In this connection it is also relevant to consider the observations made in Government of Andhra Pradesh and others Vs Lakamsani Samba Siva Rao and others, 2016(2) ALD 716 DB, which is as follows: 37. The definition of 'building or other construction work' states what does that exactly mean. It means the construction, alteration, repairs, maintenance or demolition, of or, in relation to buildings and several other structures/constructions such as streets, roads, tramways etc., but does not include any building or other construction work to which the provisions of Act of 1948 apply. It is true that the provision itself provides a dictionary for the type of other construction works, and, therefore, the question is whether blast furnace can be treated as 'building or other construction work'. Insofar as the word 'building' in this expression is concerned, it was argued on behalf of the contractors that it means a structure having walls, ceiling, flooring, windows etc. and in view thereof by no stretch of imagination blast furnace or cranes could be treated as building or called a building. Insofar as the 'other construction works' as stipulated in the definition are concerned, it was submitted that the definition does not include 'blast furnace' or 'cranes' nor the appropriate Government, by notification, has included it in the definition. We would, therefore, like to consider "whether blast furnace or cranes are covered by the definition of 'building or other construction works' in particular by the word 'building' therein? 38. Insofar as cranes are concerned, in three Writ Appeals (W.A. Nos. 62, 71 and 94 of 2015) two separate agreements were executed between the contractors and companies-principal employer. Out of which, three agreements each were for construction and three agreements were for supplying of all plant machinery and equipment. Thus, both the agreements together were for supply, construction and commissioning plant i.e. Cranes for Wire Rod Mill. Technically, learned counsel appearing for the contractors in these appeals, may be right in submitting that the contracts for supply of plant machinery cannot be taken into account for directing the appellants or the companies to pay/deduct 1% cess under the provisions of Act No. 28. We, therefore, with the assistance of learned counsel for the contractors tried to understand the exact nature of these agreements and the work undertaken by them thereunder. We, therefore, with the assistance of learned counsel for the contractors tried to understand the exact nature of these agreements and the work undertaken by them thereunder. Though two separate agreements were executed, the work that was undertaken by the contractors cannot be separated. It was like a composite contract for construction/erection and commissioning of the plant. If the argument, such as advanced by learned counsel for the appellants in these appeals, is accepted that will defeat the very object of Act Nos. 27 and 28. In every construction work/activity, the contractors and/or the principal employer would execute two agreements, one for supply of materials and the other for construction/erection of buildings such as blast furnace and cranes. The expression 'the cost of construction' as employed in Section 3(1) of Act No. 28, in our opinion, would mean the entire cost incurred for construction of a building, such as crane or blast furnace, since its construction and erection cannot be separated. It was a composite contract for construction/erection of crane with material. Therefore, the submission of the learned counsel for the appellants in these three appeals must be rejected. (emphasis is mine) 23. Thus, in view of the expressions above referred to supra, the contention of the learned senior counsel that though the word civil work is included in the contract infact, the petitioner did not execute any civil work falls to ground. If the information required by the 2nd respondent is made available, 2nd respondent will take a decision. Whether the petitioner executed civil work or not is a serious disputed questions of fact and the same will not be adjudicated in writ petition. If petitioner furnishes the information as required, the authority will decide the same. In the considered opinion of this Court, in view of the observations in Lanco Anpara’s case and L.Samba Siva Rao’s case, the prayer sought for the petitioner cannot be granted in the writ petition. 24. In this case on hand 2nd respondent issued notice vide Rc.No. A/373/2011 dated 28.04.2011 calling upon the petitioner to produce the information in Form I. Reply dated 12.05.2011 was submitted by the petitioner. Even before passing of any orders, petitioner approached this Court by invoking extra ordinary power under Art 226 of the Constitution of India. This Court granted interim order on 10.11.2011. 25. Even before passing of any orders, petitioner approached this Court by invoking extra ordinary power under Art 226 of the Constitution of India. This Court granted interim order on 10.11.2011. 25. The other contention of the learned senior counsel the judgement rendered by division bench in L.Samba Siva Rao’s Case is per incuriam by completely obliterating the exclusion clause of Sec 2(d) of Cess Act, will not arise for consideration, in view of the observations made supra. As observed supra, the contract entered into by the petitioner with 3rd respondent includes civil works. Hence, this court is not considering that aspect per incuriam in the present writ petition. 26. In view of the discussion made supra, this Court doesn’t find any irregularity in issuing notice to the petitioner to submit information in Form-I. There are no merits in the writ petition. However, in view of the interim order, the petitioner shall submit the relevant record as required to the competent authority within a period of four weeks from the date of receipt of the copy of the order. If any information, as required, is furnished, it is needless to observe the competent authority shall dispose of the same strictly in accordance with law and communicate the same to the petitioner. 27. In view of the above, this writ petition is dismissed. Miscellaneous petitions, if any pending, in this case, shall stand closed.